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was erroneous for reasons already stated, and an exception having been properly saved the order must be: Exceptions sustained.

(191 Mass. 441)

ASPINWALL et al. v. CITY OF BOSTON. TAPPAN et al. v. CITY OF BOSTON et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 15, 1906.)

1. MUNICIPAL CORPORATIONS

STREET IMPROVEMENT-AGREEMENT TO DELAY COLLECTION OF DAMAGES-ACCEPTANCE BY CITY. Though an agreement by property owners along a proposed street requiring postponement of the collection of betterments and damages until each should be determined and prescribing a set-off of the one against the other is not within the language of Rev. Laws, c. 50, § 11, which authorizes an agreement for the assumption of the betterments by the city upon a release of the damages, it resembles such an agreement and may give such advantages to the city and be so free from possible disadvantages as to be binding, if the authorities in laying out the street, and afterwards in constructing it, accept the offer, though it was not signed by any one representing the city, and no one had authority to make such a contract for the city.

2. SAME-CONTRACT NOT TO ASSESS BETTER

MENTS.

Such a contract is distinguishable from an agreement not to assess betterments upon a particular estate or to release the owner from liability for them which can be made by the street commissioners only under and in accordance with Rev. Laws, c. 50, § 11, as amended by St. 1902, p. 417, c. 503.

3. SAME-UNREASONABLE DELAY-RIGHT TO COLLECT DAMAGES.

An agreement by property owners along a proposed street in consideration of the immediate construction of the same, and of any assessment being delayed until damages caused to them should be determined that the collection of such damages should be delayed until the balance due them after offsetting the betterments should be determined was dependent upon the acceptance of the offer by the city, by a performance of the entire agreement within a reasonable time, and after an unreasonable delay, the property owners were entitled to collect their award of damages, though the betterments had not been assessed. 4. MANDAMUS-STREET IMPROVEMENT-DELAY IN CONSTRUCTION.

Because of such delay the property owners were entitled to a writ of mandamus to compel the municipal authorities to complete the construction of the street.

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Action by Thomas Aspinwall and others against the city of Boston to recover an award of damages for taking land for a public street. Mandamus by Mary A. Tappan and others against the same defendant to compel the completion of the street. Reported to the Supreme Judicial Court. Judg ment for plaintiffs in the first case, and peremptory writ of mandamus ordered issued in the second case.

C. H. Tyler, O. D. Young, and John Barker, for plaintiffs. Thos. M. Babson, for defendants.

KNOWLTON, C. J. The first of these suits is an action of contract, brought to recover the amount of an award of damages, made by the board of street commissioners of Boston, for taking land for a public street. Jersey street was laid out and ordered to be constructed by an order of the street commis- · sioners, on July 15, 1898, and these plaintiffs were awarded damages in the sum of $14,382. On September 22, 1898, the city entered upon the land for the purpose of constructing the street, and began the work of filling, which was completed on December 17, 1898. The street has never been completed in accordance with the order of the commissioners. No gutters, cross-walks, or sidewalks have been built, and no macadam has been put upon the roadway, but the roadway had been left open and unobstructed, and has been used by persons desiring to pass through it, since January 1, 1899. These facts entitle the plaintiffs to receive the amount of the award, unless their action is barred by a contract signed by them and others on March 25, 1897, as follows:

"We, the undersigned, owners of land within the lines of a proposed street running at right angles with Boylston street extension, at a width of fifty feet, from Audubon Road to Brookline avenue, and being, at its intersection with Boylston street extension, seven hundred and thirteen feet, more or less, distant from Boylston Road, as shown on a plan marked 'Back Bay Lands, Pierre Humbert, Jr., City Surveyor, April 10, 1894.' on file in the office of the city engineer of said city, in consideration of the immediate laying out and construction of said proposed street at the width of fifty feet, under the provisions of chapter 323, p. 880, of the Acts of the year 1891, and acts in amendment or addition thereto, and of any assessments which may be levied upon our several estates for the cost of said laying out and construction being delayed until the damages caused to us severally by the taking of said land, and the cost of the construction of said street, shall be determined, and of said damages being offset against the proportionate part of said cost which may be levied upon out respective estates, agree that the payment for said damages shall be delayed until the balance due from us severally, after making said offset, has been determined.

"And we severally agree that we will accept as payment, for so much of our said land to be taken for said street as lies within one hundred and twenty-five feet of said Audubon Road, the sum of three dollars per square foot; and for so much of our said land as lies within one hundred and tw`nty-five feet of said Boylston street extension, the sum of two dollars per square foot; and for so much of our said land as lies within one hundred and twenty-five feet of Brookline avenue, the sum of one and 50/100 dollars per square foot; and for so much of our said land as lies within one hundred

and twenty-five feet of Peterbrough street, or within one hundred and twenty-five feet of Queensbury street, the sum of one and 50/100 dollars per square foot; and for the rest of our said land, the sum of one dollar per square foot; it being stipulated that the execution of this paper by any owner upon any copy of this agreement, shall be tantamount to an execution of this original agreement, and that each owner signing this agreement makes no undertaking for anybody other than himself. Witness our hands and seals this twenty-fifth day of March, A. D. 1897.

"[Signed and sealed]."

The betterments have not been assessed, and the question is whether the plaintiffs are bound by this contract to delay the collection of their damages until the betterments can be offset. Water pipes were laid in the street in accordance with the order of the street commissioners, in the autumn of 1899. It is agreed that, allowing a reasonable time for surfacing and building the street, it could have been finished by the city as soon as January 1, 1900. A sewer, constructed through the street as ordered, was finished on December 17, 1903.

The fundamental question is whether the contract was of a kind that, upon acceptance by the city might become binding upon the parties. It was not signed by any one representing the city of Boston, and no one had authority to make a contract for the city to do the things referred to in the writing. 'A street can be laid out and constructed only upon an adjudication of a tribunal acting officially, and determining that the public convenience and necessity require it to be laid out as a street. See Somerville v. Dickerman, 127 Mass. 272; Parks v. Boston, 8 Pick. 218, 19 Am. Dec. 322. But a unilateral contract, offering to the city favorable terms as to land damages as an inducement to the laying out of a street, may be considered by the board charged with the duty of dealing with such matters, and may be accepted and made binding, by performance of that which is referred to in it as its consideration. Crockett v. Boston, 5 Cush. 182; White v. Norfolk County Commissioners, 2 Cush. 361; Boston v. Simmons, 9 Cush. 373; Bell v. Boston, 101 Mass. 506; Atkinson v. Newton, 169 Mass. 240-242, 47 N. E. 1029, and cases cited; Bartlett v. Boston, 182 Mass. 460, 65 N. E. 827.

There is no doubt, in the present case, that the board of street commissioners acted upon this contract in making the order and to that extent accepted it. They assessed the land damages according to the provisions of the contract. If the construction had been finished seasonably in pursuance of the provisions of the writing, there would have been a complete acceptance by performance, which would have bound the city, as well as the plaintiffs, provided the contract is such as the representatives of the city had a right to

make. First Nat. Bank v. Watkins, 154 Mass. 385, 28 N. E. 275; Wellington v. Apthorp, 145 Mass. 69-73, 13 N. E. 10; Cottage Street Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286. In regard to the nature of the contract in this particular, the only ground for doubt is as to those provisions which require postponement of the collection of betterments until the damages caused to the several signers of the writing shall be determined, and prescribe a set-off of the damages against the betterments. This arrangement is not within the language of Rev. Laws, c. 50, § 11, which authorize an agreement for the assumption of the betterments by the city or town upon a release of the damages on terms agreed upon, but it resembles such an agreement, although it does not require the city to give up anything important. Where a city or town would have the advantage of delay in paying the damages, and of an agreement to accept a stated sum as damages, an arrangement that betterments and damages shall be set-off against each other is not objectionable, provided the lien for betterments is preserved. Inasmuch as the street commissioners assessed the damages according to the terms of the agreement and the city authorities have carried the construction of the street almost to completion we see no such risk of loss from the postponement of the collection of the betterments until the amount of the damages to these subscribers and the cost of the construction shall be determined, as should make the contract illegal. Upon such an assessment of damages under such an agreement as to the mode of assessing them, it is not possible that litigation to determine the amount could arise and be protracted in the courts. The statute postpones an assessment of betterments until after the construction has been completed (Rev. Laws, c. 50, § 1), and there need be no considerable delay in ascertaining the cost of construction.

We are inclined to hold that a contract of this kind may give such advantages to a city, and be so free from possible disadvantages, as to be binding, if the authorities, in laying out the street, and afterwards in constructing it, accept the offer.

An agreement not to assess betterments upon a particular estate, or to release the owner from liability for them, is a contract of a different kind, which can be made by the street commissioners only under and in accordance with Rev. Laws, c. 50, § 11, as amended by St. 1902, p. 417, c. 503.

Treating the contract as one under which the parties on both sides could bind themselves, we come to the fact that the street was not completed in a reasonable time, and has not yet been completed. The time for taking appeals from the awards of damages expired long ago, and it is unnecessary to consider whether, on a performance of a part of the consideration, by laying out the street and assessing the damages ac

cording to the contract, the subscribers would be bound by their stipulation as to the mode of estimating these damages. The important practical question is whether the stipulation as to the delay in collecting damages can be enforced against the plaintiffs, when the city fails to perform that part of the contract which calls for the immediate construction of the street. Upon the theory of the defendant, the city might prevent the plaintiffs from ever collecting their damages, by failing to complete the construction, and by neglecting or refusing to assess betterments. We think the agreement of the plaintiffs to delay the collection of the damages is dependent upon the acceptance of the offer by the city, by a performance of the entire agreement referred to in the writing, within a reasonable time. In order to hold the plaintiffs to their agreement, it was incumbent on the city, not only to complete the construction of the street promptly, but also to ascertain the cost and to make an assessment of betterments, so that the provision for a set-off might be applied to the facts. Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538. The agreement of the plaintiffs to delay was made upon condition that all this should be done within a reasonable time. On a failure if the condition, the agreement becomes inapplicable. It could not have been intended that the plaintiffs should wait indefinitely for their damages, until the city should choose to finish the work. Both upon broad principles of equity and a strict construction of the writing, we are of opinion that the plaintiffs are not obliged to delay the enforcement of their claim. They are entitled to recover the amount of the award, with interest from September 22, 1898. Norcross v. City of Cambridge, 166 Mass. 508-511, 44 N. E. 615, 33 L. R. A. 843.

It

The second suit is a petition by other subscribers to this contract for a writ of mandamus to compel the authorities of the city to complete the construction of the street. also includes another street called Queensbury street, in reference to which there was a similar contract signed by these petitioners,

and similar action was taken by the authori ties of the city, and the petition asks for a writ of mandamus to compel the construction of this street also. As abutters desirous of an attractive street, as members of the public, and as claimants of damages for land taken, the petitioners are interested to have the street finished. The right of abutters to have a remedy of this kind, in such cases, if the facts warrant it, was considered and affirmed, with a citation of the authorities, in McCarthy v. Street Commissioners, 188 Mass. 338, 74 N. E. 659. See, also, Attorney General v. Boston, 123 Mass. 460-478.

In this case, as to both streets, both parties have acted upon the offer of these petitioners. The city laid out each of the streets and assessed damages in accordance with the offer, and nearly completed the work of construc

tion. The petitioners delayed the collection of their damages, treating the contract relating to each street as accepted and binding. Plainly they have a right to have the work finished, so that, as property owners and as members of the public, they can have the benefits which the streets were expected to confer. They are entitled to these, without reference to the fact that the payment of the damages for taking their land has been delayed to await the completion of the work and the assessment of benefits. Whether this delay furnishes an additional reason in law for granting the petition, we need not decide. The petitioners have elected to treat the contract in each case as binding upon both parties, and it may well be that, upon complete performance of the work, the city will not be permitted hereafter to set up its own neglect, to defeat the rights of the plaintiffs growing out of the respective contracts, even though the plaintiffs might have availed themselves of this neglect, and have treated the acts of the city as ineffectual to prevent them from collecting their damages. On the facts agreed, there is no good reason why the authorities of the city should not proceed to complete the construction of each of these streets.

In the first case there is to be judgment for the plaintiff; in the second case, a peremptory writ of mandamus is to issue.

Mr. Justice HAMMOND agrees to the result, but does not agree to the reasoning of the opinion.

(191 Mass. 457)

ROMANO v. DE VITO. (Supreme Judicial Court of Massachusetts. Suffolk. May 15, 1906.)

1. LIBEL-WORDS IN FOREIGN LANGUAGEPLEADING.

Where libelous words were written in a foreign language, the declaration should set out the words in that language, together with a translation thereof.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Libel and Slander, § 204.] 2. SAME-PROOF OF TRANSLATION.

Where a libel was written in a foreign language, the burden was on plaintiff to prove that the translation of the foreign words set out in the declaration was correct.

Exceptions from Superior Court, Suffolk County; L. Le B. Holmes, Judge.

Action by Vito Antonio Romano against Maria Antonio De Vito. A verdict was directed in favor of defendant, and plaintiff brings exceptions. Overruled.

Wm. Flaherty and Wm. Burns, for plaintiff. Chas. P. Greenough and John A. Blanchard, for defendant.

LATHROP, J. This is an action of tort for slanderous words alleged to have been spoken by the defendant concerning the plaintiff. The original declaration was in the English language. During the trial it appeared

that the words spoken were in the Italian language, and the counsel for the plaintiff stated that the alleged slanderous words had been spoken in Italian, and that he did not contend that they were spoken in English. The judge then suggested that, if that were so, there was a variance between the allegations and the proof. The plaintiff asked for leave to amend by setting forth the words spoken in Italian, and the judge intimating that such amendment would be permitted, the trial proceeded as before through an interpreter. At the close of the evidence for the plaintiff an amended declaration was filed setting forth the words spoken in Italian, with their meaning in English. The plaintiff then rested. The counsel for the defendant then asked the court to rule that there was no evidence that the foreign words set forth in the amended declaration were spoken by the defendant, and, further, that there was no evidence as to the meaning of such foreign words, and requested the judge to rule that the action could not be maintained. The judge so ruled. A verdict was accordingly returned for the defendant; and the case is before us on the plaintiff's exception to this ruling.

1. There is no doubt that when libelous words are written in a foreign language they should be set out in that language, and a translation given. Zenobio v. Axtell, 6 T. R. 162, per Lord Kenyon, C. J. The same rule applies in cases of slander. Rahauser v. Barth, 3 Watts (Pa.) 28; Lettmann v. Ritz, 3 Sandf. (N. Y.) 734; Zeig v. Ort, 3 Pin. (Wis.) 30; Kerschbaugher v. Slusser, 12 Ind. 453; Wormouth v. Cramer, 3 Wend. (N. Y.) 394; Keenholts v. Becker, 3 Denio (N. Y.) 346.

2. It is also necessary to prove that the translation of the foreign words in the declaration is correct. Hickley v. Grosjean, 6 Blackf. (Ind.) 351; Noeninger v. Vogt, 88 Mo. 589; Odgers, Libel & Slander (4th Ed.) 119, 120; Townshend, Slander & Libel (4th Ed.) 330; Newell, Slander & Libel (2d Ed.) 760; Folkard, Slander & Libel (6th Ed.) 471, 484.

As there was no attempt to do this in the case at bar, the ruling of the judge below was right.

Exceptions overruled.

(191 Mass. 483)

MUNROE v. TAYLOR.

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

BROKERS REAL ESTATE AGENTS-RIGHT TO COMMISSION-CONSTRUCTION OF CONTRACT.

Under a contract empowering a real estate broker to sell property for a certain sum, and providing that he should have as commission all that he could get for the property above the price named, he was entitled to commission only in the event of procuring the consummation of sale, and not on procuring the execution of a contract of sale which was never performed.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Brokers, § 91.]

Exceptions from Superior Court, Suffolk County; John A. Aiken, C. J.

Action by Francis B. Munroe against Ann E. Taylor. There was a verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Lorenzo Cowan and Stephen H. Tyng, for plaintiff. George L. Mayberry, for defendant.

BRALEY, J. This is an action of contract to recover a broker's commission for effecting an alleged sale of certain real estate belonging to the defendant. In the superior court at the close of the evidence a verdict was directed for the defendant, and the case is before us on the plaintiff's exceptions to this ruling, and the question presented is whether upon the evidence the plaintiff is entitled to be paid for his services. Whatever contract is found to have existed between the parties was entered into by the defendant, acting through her daughter as an agent. The first agreement made May 1, 1899, placed the property which consisted of a tract of land of about eight acres, with buildings thereon, in the plaintiff's hands for sale under these terms: "The price asked by Ann E. Taylor is $10,000. All over that amount that it is sold for F. B. Munroe is to have as his commission for selling the property. This agreement holds good until Ann E. Taylor withdraws the sale of the property." It does not clearly appear what steps, if any were taken by the plaintiff to effect a sale before the second contract of May 31, 1900, was executed. By this contract after a description of the estate, it was provided, that the plaintiff was empowered to sell the property "for the sum of $10,330, and F. B. Munroe is to have for himself as commission all over that amount he can get for it. The party that buys this property is to pay the taxes for the year 1900. This holds for the year 1900." With the exception of the amount to be paid, the assumption of taxes, and the limitation of the time within which it was to be performed, the terms of the agreements so far as they relate to the payment of a commission do not differ. In both the plaintiff upon making the sale was to receive as his compensation all that he could obtain beyond a certain sum. On April 10, 1901, as a result of his negotiations a binding contract to purchase at a price largely in advance of the amount fixed by the second agreement was made and duly executed by the purchaser and the defendant, and if this sale had been perfected by passing the title he would have earned the difference, less, however, a small sum which he previously had received from her. But the sale never was consummated, although the reasons for the failure are not disclosed. While it appears that the plaintiff attached the property as security for his claim there is no evidence that the sale fell through by reason of this

act, or that the purchaser declined to take a deed because of certain supposed imperfections in the title, but which finally are shown to have been invalid; nor does it appear that at any time the defendant has refused to make a proper deed of conveyance. It is the plaintiff's contention that having found a customer who became bound to buy, his commission had been earned, within the rule stated in Fitzpatrick v. Gilson, 176 Mass. 477, 478, 57 N. E. 1000. See Cadigan v. Crabtree, 179 Mass. 474, 481, 61 N. E. 37, 55 L R. A. 77, 88 Am. St. Rep. 397; Monk v. Parker, 180 Mass. 246, 63 N. E. 793; French v. McKay, 181 Mass. 485, 63 N. E. 1068.

No question of pleading is presented for the declaration, which is on an account annexed, must be treated either as a quantum meruit, or as a count to recover a stated sum due upon the performance of a contract in writing, but not under seal. Lovell v. Earle, 127 Mass. 546; Bowen v. Proprietors of the South Building, 137 Mass. 247, and the case turns upon the contruction which is to be given to the contract. By the language used it is manifest that the price at which the property sold was to fix the amount of the plaintiff's commission. It was contemplated that an actual sale should be effected, and that payment to him should be made from the price obtained, and it was not an undertaking whereby the broker is only to find a purchaser, and having done so it becomes wholly immaterial so far as earning his commission is concerned whether the principal accepts the bargain, or lets the opportunity lapse. Neither does it fall within the principle of Cadigan v. Crabtree, 186 Mass. 7, 13, 70 N. E. 1033, 66 L. R. A. 982, 104 Am. St. Rep. 543, that where the agent, when at the point of a successful negotiation, has his authority revoked by the principal, who afterwards effectuates a sale with the proposed purchaser, evidence is thus furnished from which it can be found that the withdrawal of authority was made in bad faith, and for the purpose of enabling the principal to escape payment of a commission. But here the written agreements out of which the plaintiff's right of action arises, either considered separately or together, must be construed as meaning that the sale was to be completed, and then out of the price any surplus beyond the amount stipulated which the defendant was to receive should be paid to him for his services. What the plaintiff really undertook was not only to find a purchaser at a fixed price, but to effect a sale, which meant a payment of that price, and this having been done he would have earned the excess, but until the consideration became payable, or the defendant refused to convey, he could not demand any remuneration, or maintain an action for breach of the contract. Walker v. Tirrell, 101 Mass. 257, 3 Am. Rep. 352. Exceptions overruled.

(191 Mass. 494)

FIELD V. FLETCHER. (Supreme Judicial Court of Massachusetts. Norfolk. May 16, 1906.)

1. REPLEVIN-TITLE TO SUPPORT ACTION.

In order to maintain an action in replevin, the plaintiff is bound to show in himself both property and right of possession.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Replevin, §§ 45-68.]

2. EXECUTION-FAILURE TO RETAIN POSSESSION OF GOODS.

Where an officer levied execution on certain property, but thereafter left the property for some six weeks in the possession of one claiming adversely to the execution defendant, the officer lost his special property in the goods levied on; there being no evidence that during the six-week interval he did anything to maintain possession or control of the property.

[Ed. Note. For cases in point, see vol. 21, oint, Cent. Dig. Execution, § 384.]

3. SAME-BULKY PROPERTY-APPLICATION OF STATUTES.

Rev. Laws, c. 167, § 45, relative to the attachment of goods or property which cannot be easily removed by reason of its bulk, does not apply to the seizure of goods upon an execution.

Exceptions from Superior Court, Norfolk County; Loranas E. Hitchcock, Judge.

Action by George H. Field against Calvin G. Fletcher. A verdict for defendant was directed by the court, and plaintiff brings exceptions. Exceptions overruled.

Edward J. Parker, for plaintiff. George H. Brown, for defendant.

KNOWLTON, C. J. The plaintiff, as a deputy sheriff, brought this action of replevin, to obtain property claimed by him under an execution against a party other than the defendant, which had been put in his hands for collection. He levied upon the property, which consisted of two large disks of iron that weighed two tons each, and some shafts, pipes, skids and rails. An attachment of it had been made by him on the original writ, and in his return on the writ he described it as one stone grinding machine, together with frames and connections. By reason of the bulk of the articles the attachment was made by depositing an attested copy of the writ, with the return upon it, in the office of the city clerk, in accordance with Rev. Laws, c. 167, § 45. The execution was not issued until nearly six months after the recovery of the judgment, and so the attachment was lost.

The property had been removed by the defendant from the place where it was attached, and he held it on his own premises, under a bill of sale from the execution creditor. There was ground for contention as to whether it was covered by the bill of sale.

In order to maintain an action of replevin the plaintiff was bound to show in himself both property and a right of possession. Johnson v. Neagle, 6 Allen, 227; Hallett v. Fowler, 8 Allen, 93; Stanley v. Neale, 98

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