Volume 247 — Massachusetts Reports

<p>Sale, When title passes.</p> <p>A dealer in junk signed the following instrument: “ Bo’t of . . . [another dealer] three (3) piles of mixed iron at ... [a price named per hundredweight], this to be free from light and sprue iron. All iron is to be taken out within two months of date. No iron is to be left.” At the trial of an action for the purchase price, the evidence was conflicting upon the issue, whether there was any light iron or sprue iron in the piles. Expert testimony introduced by the plaintiff tended to establish a general custom in the trade to the effect that in a sale of piles of “ mixed iron, this to be free from light or sprue iron,” the buyer should, while taldng away his loads from the piles, sort it and discard any light or sprue iron which might be in the pile, weigh up the mixed iron, and pay for all mixed iron according to weight, and that such a clause in the contract did not mean that there was no light iron or sprue iron in the piles. The plaintiff was an experienced dealer in junk and there was evidence tending to show that he had seen the piles in the defendant’s yard and, before the purchase, had climbed up on and over and around the piles and had looked them all over, and that the weight could be estimated from the size of the piles. Held, that</p> <p>(1) There was evidence entitling the plaintiff to go to the jury on the issue, whether the plaintiff intended that the title to the iron should pass at the time of the signing of the contract;</p> <p>(2) The language used, “ Bo’t of,” while not conclusive, was indicative of a complete sale;</p> <p>(3) On the evidence, it was proper for the trial judge to refuse to rule that by the terms of the contract it was the duty of the plaintiff to free the piles from light and sprue iron;</p> <p>(4) It also was proper for the judge to refuse to rule that the plaintiff could not recover if the jury thought there was any light or sprue iron in the piles.</p>

<p>Landlord and Tenant, Construction of lease, Covenant as to assignment. Evidence, Competency, Relevancy and materiality. Practice, Civil, Verdict, Exceptions.</p> <p>Under a lease in writing of real estate which contains a covenant, that the lessee “ or others having its estate in the premises will not assign this Lease ... without the consent of the said lessor or of those having its estate in the premises first being obtained in writing allowing thereof,” and also a provision reserving to the lessor a right of entry for breach of the covenant, it is not necessary, after the lessor has given consent in writing to one assignment of the lease, to procure his consent to subsequent assignments.</p> <p>Where a request for a ruling contains three propositions, one of which is an incorrect statement of the law, an exception to the denial of the request will be overruled.</p> <p>At the trial of an action of contract by the owner of a restaurant and cafeteria, alleging himself to be a tenant of certain premises as assignee of a lease, for damages alleged to have resulted from an unwarranted interference by the defendant, the owner and lessor, with the plaintiff’s rights as tenant, the judge subject to an exception by the defendant permitted a real estate agent to testify that he had a prospective purchaser for the restaurant and cafeteria, provided the purchaser could have a lease from the defendant, and that the defendant told him, at a time when the plaintiff was claiming to be a tenant as an assignee of the lease, that he had leased the premises to a druggist. There also was evidence as to similar statements by the defendant to another witness as to prospective purchasers of the business and evidence of notices to quit, given by the defendant to persons occupying the premises under the plaintiff, for the alleged reason that the premises had been relet by the defendant to other persons, tending tó show a course of conduct on the part of the defendant interfering with the plaintiff’s rights as a tenant. Held, that the exception must be overruled.</p> <p>At the trial of the action above described, evidence was admissible tending to show that the plaintiff placed certain persons in charge of the premises and in the active management of the business being conducted thereon and ' furnished to them cash for the payment of rent, such evidence tending to show that those persons were the plaintiff’s agents.</p>

<p>Negligence, Street railway, Res ipso loquitur, In use of highway. Practice, Civil, Charge to jury; Exceptions: whether error was harmful.</p> <p>Where, at the trial of an action of fort for personal injuries against a street railway company by a passenger upon a street car of the defendant, it appears that the accident resulted from a collision of the street car with a motor truck on the highway, the mere occurrence of the collision is not evidence of negligence of the defendant, and an exception by the defendant must be sustained to an instruction to the jury that, if they found that the electric car collided with the motor truck and there was no explanation as to what the motorman was doing, or if they found that it was a collision without explanation and would not ordinarily have occurred if the motorman had been exercising reasonable care, then they could find that there was some negligence on the motorman’s part.</p> <p>The questions, whether, in the circumstances appearing at the trial of an action against a street railway company for personal injuries received by a passenger on a car of the defendant and caused by a collision of the street car with a motor truck in the highway, the motorman should have sounded his bell and have slackened his speed at the intersection of streets, were matters properly for the consideration of the jury upon the question of negligence, and an instruction to the jury, in substance, that the motorman, on approaching comers or vehicles coming in the opposite direction, is under obligation to give warning by sounding a whistle or gong and to slow down the speed and keep his car under control so that as he nears an intersecting street he will not be proceeding at an unreasonable rate of speed, constituted harmful error, since from it the jury must have understood that an absolute duty rested upon the motorman to do the things referred to in the instruction; and such error was not cured by a general instruction, following it, that if by the exercise of reasonable care the motorman could have avoided the accident, and he did not exercise reasonable care but was negligent, then the defendant would be liable.</p>