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that he had a special property in the chattels on May 23d, when the action of replevin was brought. His failure to introduce evi. dence that he did anything to maintain pog. session, custody or control of the property, from the time of the seizure, or at least from the time of the first adjournment of the sale, is fatal to his claim.

It becomes unnecessary to consider what effect, if any, his failure to sell the property under the execution, and his return of the execution unsatisfied, would have upon his rights, if his case were established in other particulars.

Exceptions overruled.

Mass, 343; Lewis V. Buttrick, 102 Mass. 412, 414; Barry v. O'Brien, 103 Mass. 520. Dicta, that mere prior possession without legal right is enough, are not supported by the decisions in this commonwealth. The plaintiff concedes that he has never had the general property in the articles, but he claims a special property in them by virtue of a levy on the execution. He testified that he went to the defendant's residence and there seized the chattels upon the execution, and he introduced his official return, which recited the making of ide seizure, and that he kept the property safely for four days prior to the proposed sale. The seizure was on the fourth day of April, and the return states that on April 6th he received a notice from the defendant, which is there set out in full, containing a claim of the property under a bill of sale, and forbidding the plaintiff to enter upon his premises or to interfere with the property in any way. The return states that thereupon the plaintiff adjourned the sale from April 9th to April 16th, from April 16th to April 23d, from April 23d to April 30th, from April 30th to May 7th, from May 7th to May 14th, from May 14th to May 21st, and from May 21st to May 25th, on which last day, the execution having expired, he returned it in no part satisfied. The return also states that the goods and chattels referred to in the notice of the defendant were replevied by the plaintiff, by virtue of a writ bearing date May 23d, which is the writ in the present case.

The evidence of a seizure is enough to warrant a finding that the plaintiff acquired a special property in the chattels, but all the evidence tends to show that, after that, they were allowed to remain on the defendant's premises until they were taken under the writ of replevin. More than six weeks elapsed after the seizure before the writ of replevin was issued, and there is no evidence that the plaintiff at any time did anything to maintain possession or preserve his special property. A fair inference from the testimony is that, during all this time the plaintiff made no attempt to retain custody of it, or to keep it under his control. It is well established law in Massachusetts that an officer who attaches chattels or takes them on execution cannot maintain his right, and retain his special property, without taking them into his possession and keeping them. Caldwell V. Eaton, 5 Mass. 399; Lane V. Jackson, 5 Mass. 157, 164; Eastman v. Eveleth, 4 Metc. 137, 146; Shephard v. Butterfield, 4 Cush. 425, 50 Am. Dec. 796; Sanderson v. Edwards, 16 Pick. 141; Carrington v. Smith, 8 Pick 419; Hemmenway v. Wheeler, 14 Pick. 408, 25 Am. Dec. 411; Bagley v. White, 4 Pick. 395, 16 Am. Dec. 353. 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.

The burden was on the plaintiff to show

(191 Mass. 491) MASSELL V. BOSTON ELEVATED RY.

CO. (Supreme Judicial Court of Massachusetts.

Suffolk. May 16, 1906.) 1. STREET RAILROADS — CARE AS TO TRESPASSERS.

A street railway company owes no duty to a trespasser on a car, except to refrain from willfully, wantonly, or recklessly exposing him to danger. 2. SAME NEGLIGENCE - EVIDENCE — ADMISSIBILITY.

A street railway company, 'sued for injuries received by a newsboy ordered from a car on which he was a trespasser by the motorman in charge thereof, is not bound by the acts of other conductors and motorien alllowing the boy to get on the cars, in the absence of proof that the company knew the fact and acquiesced in the violation of its rules.

Exceptions from Superior Court, Suffolk County; Wm. C. Wait, Judge.

Action by one Massell, by his next friend, against the Boston Elevated Railway Company. There was a verdict for defendant, and plaintiff excepts. Overruled.

This was an action in tort for personal injuries received by plaintiff, a newsboy, who was ordered from a car by the motorman in charge thereof. The boy was frightened, and fell from the car, and was injured.

Walter A. Webster and Stebbins, Storer & Burbank, for plaintiff. Ralph A. Stewart and Jos. F. Berry, for defendant.

LATHROP, J. 1. The plaintiff in this case was a trespasser upon a car of the defendant; and the defendant owed him no duty except to refrain from willfully, wantonly or recklessly exposing him to danger. Banks v. Highland Street Ry., 136 Mass. 485; Planz v. Boston & Albany R. R., 157 Mass. 377, 382, 32 N. E. 356, 17 L. R. A. 835; Leonard v. Boston & Albany R. R., 170 Mass. 318, 320, 49 N. E. 621; Mugford v. Boston & Maine R. R., 173 Mass. 10, 52 N. E. 1078; Bjornquist v. Boston & Albany R. R., 185 Mass. 130, 70 N. E. 53, 102 Am. St. Rep. 332; Albert V. Boston Elevated Ry. 185 Mass. 210,.70 N. E. 52.

While the language used by the motorman

was rough and the gestures threatening, fendant a bond given in January, 1896, by it is obvious that the plaintiff had no rea Thomas F. Hill, as principal, to one Charles sonable ground to believe that the motorman H. Hanson. intended to assault him. The car was go The plaintiffs' evidence tended to show ing at a low rate of speed and came to a that in the year 1895 one Thomas F. Hill and dead stop within five feet of the place where one Charles H. Hanson were partners in the plaintiff attempted to get off. The plain Lowell as retail liquor dealers and innholdtiff had been a newsboy for a year and was ers; that in January, 1896, Hanson withdrew familiar with the streets of Boston. There from the business and Hill continued to conwas nothing in the motorman's words or in duct the same; that the defendant was so his gestures to intimidate an ordinary news interested in the business to be conducted boy. The case is fully covered by the au and which afterwards was conducted by Hill, thorities above cited.

that he, the defendant, was to furnish and 2. The evidence offered was rightly exclud did furnish liquors and other articles to Hill ed, as immaterial and irrelevant. The de at wholesale, under an agreement between fendant could not be bound by evidence that the defendant and Hill; that in connection other conductors and motormen had allowed with the withdrawal of Hanson from the the plaintiff to get upon their cars, in the business the bond above referred to was exabsence of evidence that the defendant or ecuted and delivered to Hanson; that beits officers knew the fact and acquiesced in fore the signing or execution thereof by the the violation of the rules. Thompson v. plaintiffs, the defendant requested them to Boston & Maine R. R., 153 Mass. 391, 26 sign and execute the same as sureties thereN. E. 1070.

in, and in consideration thereof orally agreed Exceptions overruled.

to save them harmless from all loss on account thereof; and that the plaintiffs signed

and executed such bond at the defendant's (191 Mass. 469)

request, relying upon the defendant's promHAWES et al. V. MURPHY.

ise. (Supreme Judicial Court of Massachusetts.

The plaintiffs offered in evidence the origMiddlesex. May 16, 1906.)

inal papers and the docket record in the 1. FRAUDS, STATUTE OF-PROMISE TO INDEM

action on the bond in question of Hanson NIFY. Under Statute of Frauds, Rev. Laws, c.

against Hill and the plaintiffs herein, 74, § 1, cl. 2, providing that nó action shall be brought in December, 1897, in which judg. brought to charge a person on a special promise ment was entered for the plaintiff Hanson on to answer for the debt, default, or misdoings of another unless the promise or some memoran

December 3, 1900, for $1,015.57 and costs. dum or note thereof is in writing and signed On December 17, 1900, the plaintiffs paid by the party to be charged therewith, a ver the amount of the judgment on the bond, bal promise by defendants to save plaintiffs

which with costs amounted to $1,119.96. harmless from all loss on account of a bond signed at defendants' request by plaintiffs as

There was also evidence that after the sureties is valid.

bringing of the suit of Hanson against Hill [Ed. Note.For cases in point, see vol. 23, and the plaintiffs, the plaintiffs notified the Cent. Dig. Frauds, Statute of, g 32.]

defendant of the pendency of the suit, and 2. TRIAL - INSTRUCTIONS APPLICABILITY TO the defendant advised the plaintiffs what FACTS. Where, in an action to recover for loss

counsel to employ, but did not himself desustained by plaintiffs as sureties on a bond fend; and that in executing the bond the signed by them at defendant's request and in re plaintiffs relied entirely upon the promise of liance on his oral promise to save them harm the defendant, and not at all upon the responless on account thereof, the uncontradicted evidence showed that, in executing the bond, plain

sibility of Hill, the principal in the bond; that tiffs relied entirely upon defendant's promise Hill was a man of no property whatsoever, and not on the responsibility of the principal

except his interest in the liquor business. in the bond, a requested instruction that if

The defendant's evidence tended to show plaintiffs signed the bond relying in part on the responsibility of the principal therein and in that Hanson never, after the execution and part on the alleged oral promise of indemnity by delivery of the bond, except as above set defendant, defendant's alleged promise was col

forth, paid any debt or demand existing lateral, and within the statute of frauds and he was not liable thereon, was properly refused.

against the firm of Hanson & Hill mentioned

in the bond; that it was agreed by Hanson Exceptions from Superior Court, Middle

& Hill in December, 1893, to refer the adsex County; John H. Hardy, Judge.

justinent of their partnership accounts and Action by one Hawes and another against

all matters connected therewith to the police one Murphy. Judgment for plaintiffs. Ex

board of Lowell, Mass., and to give that board ceptions by defendant. Exceptions overruled.

full power to adjust all matters and accounts Burke & Corbett, for plaintiffs. John W. existing between them as partners, and all McEvoy, for defendant.

accounts due from them as partners to third

persons, and that they agreed to accept such LATHROP, J. This is an action to recover adjustment as final and binding upon them; $1,119.96, with interest thereon, for money that the board did sit and pass upon the paid by the plaintiffs by reason of having same; that one of the matters considered by signed as sureties at the request of the de- ! the board was a bill of $1,750.99, due from

Hanson & Hill to the defendant; that it tions were taken. The jury returned a verwas found by the board that there was due dict for the plaintiff's for the full amount to the firm of Charles H. Hanson & Co. claimed. (comprising Hanson and his brother, as equal The only questions of law argued by the partners), from the defendant the sum of defendant are to the refusal to give the in$1,582.72, for goods sold and delivered to the structions requested. defendant; that the board in partial settle 1. The first instruction requested could not ment of the bill of $1,750.99 against Hanson have been given. The defendant's promise to & Hill, set off the bill of $1,582.72 due from the plaintiffs was not "a special promise the defendant Hanson and his brother, and to answer for the debt, default or misdoings ordered Hill to pay to the defendant the of another" within the statute of frauds balance, namely, $168.27; that the parties to (Rev. Laws C. 74, § 1, cl. 2), but was an the reference agreed to the finding of the original promise to save the sureties harmboard, which finding was to be a final settle less from all loss on account of their signment between the parties; that this finding ing as sureties, if the jury believed the testiwas made about the time the bond was given, mony of the plaintiffs. This question was and that by reason of the finding there was submitted to the jury with appropriate indue from Hanson & Hill to the defendant structions. Colt v. Root, 17 Mass. 229; Weld the sum of $168.27 only (the balance afore v. Nichols, 17 Pick. 538; Chapin v. Lapham, said) which amount Hill soon afterwards 20 Pick. 467; Preble v. Baldwin, 6 Cush. paid; and the defendant contended that no 549; Aldrich v. Ames, 9 Gray, 76; Perkins breach of the bond had been committed, V. Littlefield, 5 Allen, 370; Collins v. Pratt, and that the judgment in the action on the 181 Mass. 345, 347, 63 N. E. 946. bond was therefore erroneous.

2. There was no evidence in the case to It further appeared that the bond was serve as a foundation for the second ro made January 13, 1896; that the money ad quest. The evidence for the plaintiffs is vanced by the defendant for the payment of that in executing the bond the plaintiffs the indebtedness of Hanson & Hill was ad relied entirely upon the promise of the devanced some time in February, 1896, and fendant, and not at all upon the respo sithat some of the creditors of Hanson & Hill bility of Hill; that Hill was a man of no were paid in February, 1896.

property whatsoever, except his interest in It appeared that Hanson and his brother the liquor business. There was no evidence brought suit on June 3, 1896, against the to contradict this. defendant to recover the sum of $1,582.72, Other questions which arose at the trial and that in November, 1897, judgment in are disposed of by the verdict. that suit was entered, by agreement of the Exceptions overruled, parties, in favor of the defendant, whose answer in the suit was that the alleged claim had been paid by set-off in the manner above

(191 Mass. 533) stated.

HAYDEN V. JAMES F. SHAW & CO. There was no evidence that the plaintiffs ever made any effort to collect from the

(Supreme Judicial Court of Massachusetts.

Suffolk. May 16, 1906.) principal in the bond in question the amount paid by them thereon, or that any demand

1. CONTRACTS-CONSTRUCTION.

Plaintiff's assignor, who owned a majority therefor was ever made on the principal.

of the bonds of a street railway constructed The defendant requested the judge to rule on a turnpike under a contract, which right of as follows:

way was not included in the mortgage securing "(1) That the execution of the bond in

the bonds, contracted to sell to defendants 126

of the bonds at 40 cents on the dollar, toquestion by Hill as principal, and the plain

gether with others up to the amount of 154 at tiffs as sureties, made Hill primarily liable the same price. The contract provided that to the sureties for any damage they might sus

bonds up to $150,000 might be deposited under

the agreement before a foreclosure sale "here tain by reason of signing of the bond; and

inafter mentioned,” excluding bonds recently this defendant's alleged promise of indem held by M. Article 4 declared that $110,000 nity, if made, was merely collateral and so should be paid for all the outstanding bonds within the statute of frauds, and this defend

and stocks of the allied companies, including

the street railway, turnpike, and a railroad comant is not liable thereon.

pany, and provided for certain payments to "(2) If the plaintiff signed the bond in plaintiff's assignor in the event defendants acquestion relying in part upon the responsi

quired the bonds and allied stocks before forebility of Hill, the principal in the bond, and

closure, or in case defendants became purchasers

"at said foreclosure sale," and contained a in part on the alleged oral promise of in covenant binding defendants to bid $100,000 "at demnity by the defendant, the defendant's such foreclosure sale." It was impossible for alleged promise, if he made it, was collateral defendants to acquire all the bonds specified,

whereupon, after notice, defendants sold their and within the statute of frauds, and defend

bonds and the mortgage was foreclosed by ant is not liable thereon."

others. Held, that defendants were not bound The judge refused to give these instruc to purchase all the bonds and stocks of the tions.

allied companies at all events, nor to bid $100,The case was submitted to the jury under by them, and that they were therefore not lia

000 at a foreclosure sale, except one conducted appropriate instructions, to which no excep- ble for breach of contract.

2. SAME-MODIFICATION OF CONTRACT-ORAL AGREEMENT--MERGER.

Where, after the execution of a written contract for the sale of street railway bonds, etc., it was orally agreed that defendants should buy the bonds and allied stocks of certain corporations, and foreclose the mortgage securing the bonds in consideration of the execution of the written contract, whereupon the written contract was changed, such oral agreement became merged in the written contract.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, $$ 1129, 1130.]

Exceptions from Supreme Judicial Court, Suffolk County; James M. Barker, Judge.

Action by one Hayden against James F. Shaw & Co. A verdict was directed in favor of defendants, and plaintiff brings exceptions. Overruled.

C. F. Choate, Jr., Fredk. H. Nash, and Burrage & Hayden, for plaintiff. Guy W. Cox and Frank S. Katzenbach, Jr., for defendants.

bonds of one Morrell, whose holdings and relations to the matter are hereinafter set forth in full) sold his 227 bonds to J. L, Blackwell & Co., at whose instance the mortgage was foreclosed on September 10, 1901, and by whom the mortgaged property was bid in for $1,000.

One of the elements of damage claimed by the plaintiff was the loss on 10 bonds belonging to him (which were mislaid or lost), on which he got his proportion of $1,000, the actual proceeds of the foreclosure sale, in place of his proportion of $100,000 which it is his claim should have been the proceeds of the foreclosure sale.

The plaintiff also claims that the defendants made a profit when they sold the bonds to Fell. This the defendants deny, and explain that they were sold with other property for a lump sum, and the profit was made on the other property.

The defendants claim that the only obligation which they took upon themselves by executing the written contract was to buy for 40 cents on the dollar the 126 bonds and all other bonds which should be deposited under the contract, and that they did so; and that having bought them they could do with them as they pleased; and further, as to the alleged oral agreement, that the conversation testified to was a part of the negotiations which led up to the written contract here sued on.

The defendants testified that they did not sell the bonds to Fell until they were told by Mr. Tennis' counsel that they "could not get any more bonds and

could not get the allied stocks. This was not contradicted.

In their arguments as to the true construction of the written contracts of August 13, 1900, both the plaintiff and the defendants have appealed to the circumstances under which it was made. Before stating the terms of the contract, we shall state these circumstances.

Prior to July, 1900, Tennis had undertaken to build an electric street railway from the county line of Philadelphia to Bristol, a distance of 11 miles. The name of the railway was the Philadelphia & Bristol Passenger Railway, and for convenience we shall speak of it as the railway. The amount of the capital stock and of the issue of mortgage bonds was $250,000 each. The railway was to be constructed on the road of a turnpike company, which had by contract given the railway company a right to construct its railway on its road. The capital stock of the turnpike company was owned by one Morrell. Tennis had not been successful in building the railway. The permission granted by the turnpike company did not give him the right to build on the turnpike company's road if the abutters objected, and there was what was spoken of at the argument as "a gap" of three-quarters of a mile where the abutters did object. To overcome

LORING, J. This is an action brought by the plaintiff as assignee of one Tennis for the breach of a contract between Tennis and the defendants James F. Shaw & Co. (a firm engaged in promoting and building street railways), and E. H. Gay & Co. (bankers, dealing in street railway securities).

In August, 1900, Tennis was the owner of 126 (being a majority of the total issue of 250) mortgage bonds of the Philadelphia & Bristol Passenger Railway Company, subject to certain debts for which they were pledged. By a written agreement dated August 13, 1900, Tennis agreed to sell and the defendants agreed to buy these 126 bonds for 40 cents on the dollar, and any further bonds that might be deposited, up to 154 bonds.

The plaintiff's claim is (first) that by the true construction of this written contract the defendants were bound to buy the other outstanding bonds and certain stocks hereinafter referred to, or to foreclose the mortgage, or to bid $100,000 when the mortgage was foreclosed, and also when the mortgage was foreclosed to pay Tennis $10,000 or $10,000 less foreclosure expenses; and (second) if this is not so, that by an oral agreement made by the defendants in consideration of Tennis's entering into the written contract they were bound to buy in the outstanding bonds and the stocks already referred to or foreclose the mortgage, and on the defendants doing one or the other they were bound by the written contract to pay the plaintiff his $10,000, and to bid $100,000 at the foreclosure sale.

It is admitted that the defendants paid for the 126 bonds, and in addition bought 17 bonds which were deposited under the agreement in question, but did nothing further. They did not buy in the other bonds nor the stocks nor foreclose the mortgage, but sold their 143 bonds' in February, 1901, to one Johnson and the Lehigh Valley Traction Company. It is admitted that Johnson and the traction company sold to one Fell, and that Fell (who previously had bought 84

*

that difficulty Tennis had organized a steam northerly terminus of the Philadelphia & railroad, because a steam railroad had a Bristol Railway, the railway in question) right to condemn land while a street rail south to Philadelphia, and had been unsucway had not. This "gap" was 7 miles north cessful in getting a right of way. from the Philadelphia county line, i. e. from Coming to the terms of the written conthe southern terminus of the railway. To tract of August 13, 1900: It contained five prevent a forfeiture of the 314 miles north articles. of the "gap," Tennis organized a horse rail Article 1 refers to a tripartite agreement of way, which operated this portion of the even date between the same parties and the tracks under a lease from the railway com Union Trust Company, whereby Tennis sells pany. The danger of a forfeiture of the and the defendants in the case at bar buy 344 miles north of the "gap" came from a 126 bonds of the railway company at 40 cents law requiring the operation of a street on the dollar, to be deposited with the trust railway to be continuous.

company under the agreement; and the deTennis had been unsuccessful financially also. fendants in the case at bar also agree to buy He had sold to Morrell 84, had pledged to at the same price any further bonds deposited creditors 126, had lost or mislaid 12, and thereunder up to 154 bonds. otherwise had parted with the remaining 28 Article 2 provides that bonds up to $150, of the 250 mortgage bonds of the railway. 000 may be deposited under the agreement He had sold to Morrell all the stock of the "before the foreclosure sale hereinafter menrailway in question and also all the stock of tioned," with a proviso that no part of the the steam railroad and the horse railway. 84 bonds "recently held" by Morrell "shall

Morrell had sold to Fell who was after be deposited." wards the purchaser of the defendant's bonds The third article is as follows: "It is from Johnson and the traction company understood and agreed that the mortgage to whom the defendants sold them as we have securing the said bonds may be foreclosed already stated), all his holdings on July 6, when the parties of the second part may 1900, the month before the contract here sued

elect, the expense thereof to be paid out of on was made; and Fell was then operating the sum of ten thousand dollars hereinafter the railway for the 7 miles north of the mentioned, said foreclosure to be accomPhiladelphia county line and south of the plished by the exercise of the power of sale "gap” by electricity, and the horse railway contained in the said mortgage, or by a bill for the 314 miles north of the gap by horse in equity, or otherwise, as the parties of power. The mortgage interest was four the second part shall determine." years overdue, but the trustee of the mort

The fourth article begins with the stategage had not taken possession of the mort ment that "the price to be paid by the pargaged property.

ties of the second part to the said Tennis One other circumstance should be stated, for all of the said two hundred and fifty thounamely, that in the May preceding the

sand dollars ($250,000) of bonds, with all unAugust in question Tennis had given to

paid coupons attached, and the stocks of one Myrick and one Shaw (a partner of the

the allied companies held with the eightyfirm of J. F. Shaw & Co., one of the two

four thousand dollars ($84,000) of the said defendant firms in the action now before

bonds which were recently owned and held us) a written agreement to sell and deliver

by Edward Morrell, is the sum of one hunto them on or before August 1, 1900, at their dred and ten thousand dollars ($110,000), option, the whole mortgage bond issue ($250,

that is, forty (40) cents on the dollar for the 000 in amount) of the railway, and all its

two hundred and fifty thousand dollars capital stock; also all the stock of the turn

($250,000) of bonds, making one hundred pike company, the steam railroad company thousand dollars ($100,000) and an addiand of the horse railway company. The tional sum of ten thousand dollars ($10, price to be paid for all these securities was

10) to be reserved by the parties of the $115,000, $15,000 of which was to be paid

second part for the costs and expenses atin cash and the balance in mortgage bonds

tending the foreclosure of the mortgage, the of a new company not to exceed $20,000 a

balance of said sum of ten thousand dollars mile. Tennis not having secured Mr. Mor

($10,000) after deducting said costs and exrell's 84 bonds and his holdings of stock

penses to be paid over to the said Tennis." in the railway and in the other companies, se

By “the stocks of the allied companies” it cured from Myrick and Shaw, on June 28th,

is conceded was meant the stocks of the an extension of his contract to September

electric railway company, the turnpike com1st. The contract now in question was made

pany, the steam railroad company, and the after it was known that Morrell had sold

horse railway company. or had gone through the form of a sale of all

It is then provided in the fourth article his holdings which, as we have said, was

that if all the “$250,000 of bonds and the on or about July 6, 1900.

stocks of the allied companies" are acquired It appeared that the defendants in the

by the defendants in the case at bar "before action now before us were contemplating the foreclosure sale,” whether under the conbuilding a street railway from Trenton tract in question or by purchase directly (which is 10 miles north of Bristol, the from the owners, the defendants are to pay

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