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 *he 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 the 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. 144; 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

that he had a special property in the chattels on May 23d, when the action of replevin was brought. IIis failure to introduce evi. dence that he did anything to maintain posSession, 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.

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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, it is obvious that the plaintiff had no reaSonatble ground to believe that the motorman intended to aSSault him. The Car WaS going at a low rate of Speed and came to a dead stop within five feet of the place where the plaintiff attempted to get off. The plaintiff had been a newsboy for a year and was familiar With the Streets of Boston. There was nothing in the motorman’s words or in his gestures to intimidate an ordinary newsboy. The case is fully covered by the authorities above cited. .

2. The evidence offered was rightly excluded, as immaterial and irrelevant. The defendant could not be bound by evidence that other conductors and motormen had allowed the plaintiff to get upon their cars, in the absence of evidence that the defendant Or its officers knew the fact and acquiesced in the violation of the rules. Thompson V. Boston & Maine R. R., 153 Mass. 391, 26 N. E. 1070.

Exceptions overruled.

(191 Mass. 469)


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

1. FRAUDs, STATUTE OF-PROMISE TO INDEMNIFY. Under Statute of Frauds, Rev. Laws, c. 74, § 1, cl. 2, providing that no action shall be brought to charge a person on a special promise to answer for the debt, default, or misdoings of another unless the promise or some memorandum or note thereof is in writing and signed by the party to be charged therewith, a verbal promise by defendants to save plaintiffs harmless from all loss on account of a bond signed at defendants’ request by plaintiffs as sureties is valid. [Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 32.]

2. TRIAL – INSTRUCTIONS-APPLICABILITY TO FACTS. Where, in an action to recover for loss sustained by plaintiffs as sureties on a bond signed by them at defendant's request and in reliance on his oral promise to save them harmless on account thereof, the uncontradicted evidence showed that, in executing the bond, plaintiffs relied entirely upon defendant’s promise and not on the responsibility of the principal in the bond, a requested instruction that if plaintiffs signed the bond relying in part on the responsibility of the principal therein and in part on the alleged oral promise of indemnity by defendant, defendant’s alleged promise was collateral, and within the statute of frauds and he was not liable thereon, was properly refused.

Exceptions from Superior Court, Middlesex County; John H. Hardy, Judge.

Action by one Hawes and another against one Murphy. Judgment for plaintiffs. Exceptions by defendant. Exceptions overruled.

Burke & Corbett, for plaintiffs. John W. McEvoy, for defendant.

LATHROP, J. This is an action to recover $1,119.96, with interest thereon, for money paid by the plaintiffs by reason of having

signed as Sureties at the request of the de

fendant a bond given in January, 1896, by Thomas F. Hill, as principal, to one Charles H. HansOn. The plaintiffs evidence tended to show that in the year 1895 one Thomas F. Hill and one Charles H. Hanson were partners in Lowell as retail liquor dealers and innholders; that in January, 1896, Hanson withdrew from the business and Hill continued to Conduct the same; that the defendant Was SO interested in the business to be conducted and which afterwards was conducted by Hill, that he, the defendant, was to furnish and did furnish liquors and other articles to Hill at Wholesale, under an agreement between the defendant and Hill; that in connection With the Withdrawal Of HansOn from the business the bond above referred to was executed and delivered to Hanson; that before the signing or execution thereof by the plaintiffs, the defendant requested them to sign and execute the same as Sureties therein, and in consideration thereof Orally agreed to save them harmless from all loss on account thereof; and that the plaintiffs signed and executed Such bond at the defendant’s request, relying upon the defendant’s prom1Se. The plaintiffs offered in evidence the original papers and the docket record in the action on the bond in question of Hanson against Hill and the plaintiffs herein, brought in December, 1897, in which judgment was entered for the plaintiff Hanson on December 3, 1900, for $1,015.57 and costs. On December 17, 1900, the plaintiffs paid the amount of the judgment on the bond, Which With costs amounted to $1,119.96. There Was also evidence that after the bringing of the Suit of Hanson against Hill and the plaintiffs, the plaintiffs notified the defendant of the pendency of the suit, and the defendant advised the plaintiffs what counsel to employ, but did not himself defend; and that in executing the bond the plaintiffs relied entirely upon the promise of the defendant, and not at all upon the responsibility of Hill, the principal in the bond; that Hill was a man of no property whatsoever, except his interest in the liquor business. The defendant’s evidence tended to show that Hanson never, after the execution and delivery of the bond, except as above set forth, paid any debt or demand existing against the firm of IIanson & Hill mentioned in the bond; that it was agreed by Hanson & Hill in December, 1895, to refer the adjustment of their partnership accounts and all matters connected therewith to the police board of Lowell, Mass., and to give that board full power to adjust all matters and accounts existing between them as partners, and all accounts due from them as partners to third persons, and that they agreed to accept such adjustment as final and binding upon them; that the board did Sit and pass upon the same; that one of the matters considered by the board Was a bill of $1,750.99, due from Hanson & Hill to the defendant; that it was found by the board that there was due to the firm Of Charles H. HanSOn & Co. (comprising Hanson and his brother, as equal partners), from the defendant the sum of $1,582.72, for goods sold and delivered to the defendant; that the board in partial settlement of the bill of $1,750.99 against Hanson & Hill, set off the bill of $1,582.72 due from the defendant Hanson and his brother, and ordered Hill to pay to the defendant the balance, namely, $168.27; that the parties to the reference agreed to the finding of the board, which finding was to be a final settlement between the parties; that this finding was made about the time the bond was given, and that by reason of the finding there was due from Hanson & Hill to the defendant the Sum of $168.27 Only (the balance aforesaid) which amount Hill soon afterwards paid; and the defendant contended that no breach of the bond had been Committed, and that the judgment in the action On the bond was therefore erroneous. It further appeared that the bond was made January 13, 1896; that the money advanced by the defendant for the payment of the indebtedneSS Of HanSOn & Hill WaS advanced some time in February, 1896, and that Some of the creditors of HanSOn & Hill were paid in February, 1896. It appeared that Hanson and his brother brought suit on June 3, 1896, against the defendant to recover the Sum of $1,582.72, and that in November, 1897, judgment in that suit was entered, by agreement of the 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 Stated. There was no evidence that the plaintiffs ever made any effort to collect from the principal in the bond in question the amount paid by them thereon, or that any demand therefor was ever made on the principal. The defendant requested the judge to rule as follows: “(1) That the execution of the bond in question by Hill as principal, and the plaintiffs as Sureties, made Hill primarily liable to the sureties for any damage they might Sustain by reason of signing of the bond; and this defendant's alleged promise of indemnity, if made, was merely collateral and so Within the statute of frauds, and this defendant is not liable thereon. “(2) If the plaintiff signed the bond in question relying in part upon the responsibility of Hill, the principal in the bond, and in part on the alleged oral promise of indemnity by the defendant, the defendant’s alleged promise, if he made it, was collateral and Within the statute of frauds, and defendant is not liable thereon.” The judge refused to give these instructions. The case was submitted to the jury under appropriate instructions, to which no excep

tions were taken. The jury returned a verdict for the plaintiffs for the full amount Claimed. The only questions of law argued by the defendant are to the refusal to give the inStructions requested. 1. The first instruction requested could not have been given. The defendant's promise to the plaintiffs was not “a special promise to answer for the debt, default or misdoings of another” Within the statute of frauds (Rev. Laws c. 74, § 1, cl. 2), but was an Original promise to Save the Sureties harmless from all loss on account of their signing as sureties, if the jury believed the testimony of the plaintiffs. This question was submitted to the jury with appropriate instructions. Colt v. Root, 17 Mass. 229; Weld V. Nichols, 17 Pick. 538; Chapin v. Lapham, 20 Pick. 467; Preble v. Baldwin, 6 Cush. 549; Aldrich v. Ames, 9 Gray, 76; Perkins v. Littlefield, 5 Allen, 370; Collins v. Pratt, 181 Mass. 345, 347, 63 N. E. 946. 2. There was no evidence in the case to Serve as a foundation for the second request. The evidence for the plaintiffs is that in executing the bond the plaintiffs relied entirely upon the promise of the defendant, and not at all upon the responsibility of Hill; that Hill Was a man of no property Whatsoever, except his interest in the liquor business. There Was no evidence to Contradict this. Other questions whichi arose at the trial are disposed of by the Verdict. Exceptions overruled.

(191 Mass. 533) HAYDEN V. JAMES F. SHAW & CO.

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

1. CONTRACTS-CONSTRUCTION. Plaintiff's assignor, who owned a majority of the bonds of a street railway constructed on a turnpike under a contract, which right of way was not included in the mortgage securing the bonds, contracted to sell to defendants 126 of the bonds at 40 cents on the dollar, together With others up to the amount of 154 at the same price. The contract provided that bonds up to $150,000 might be deposited under the agreement before a foreclosure sale “hereinafter mentioned,” excluding bonds recently held by M. Article 4 declared that $110,000 should be paid for all the outstanding bonds and stocks of the allied companies, including the street railway, turnpike, and a railroad company, and provided for certain payments to plaintiff's assignor in the event defendants acquired the bonds and allied stocks before foreclosure, or in case defendants became purchasers “at said foreclosure sale,” and contained a covenant binding defendants to bid $100,000 “at such foreclosure sale.” It was impossible for defendants to acquire all the bonds specified, whereupon, after notice, defendants sold their bonds and the mortgage was foreclosed by others. Held, that defendants were not bound to purchase all the bonds and stocks of the allied companies at all events, nor to bid $100,000 at a foreclosure sale, except one conducted by them, and that they were therefore not liable 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.

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

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 that difficulty Tennis had organized a steam railroad, because a steam railroad had a right to condemn land While a street railway had not. This “gap” was 7 miles north from the Philadelphia county line, i. e. from the southern terminus of the railway. To prevent a forfeiture of the 3% miles north of the “gap,” Tennis organized a horse railway, which operated this portion of the tracks under a lease from the railway Company. The danger of a forfeiture of the 3% miles north of the “gap” came from a law requiring the operation of a Street railway to be continuous. Tennis had been unsuccessful financially also. He had sold to Morrell 84, had pledged to creditors 126, had lost or mislaid 12, and otherwise had parted with the remaining 28 of the 250 mortgage bonds of the railway. He had sold to Morrell all the Stock Of the railway in question and also all the stock of the steam railroad and the horse railway. Morrell had sold to Fell Who Was afterwards the purchaser of the defendant’s bonds from Johnson and the traction company to whom the defendants sold them as we have already stated), all his holdings on July 6, 1900, the month before the contract here sued on was made; and Fell was then operating the railway for the 7 miles north of the Philadelphia county line and south of the “gap” by electricity, and the horse railway for the 334 miles north of the gap by horse power. The mortgage interest was four years overdue, but the trustee of the mortgage had not taken possession of the mortgaged property. One other circumstance should be stated, namely, that in the May preceding the August in question Tennis had given to one Myrick and one Shaw (a partner of the firm of J. F. Shaw & Co., one of the two defendant firms in the action now before us) a written agreement to sell and deliver to them on or before August 1, 1900, at their option, the whole mortgage bond issue ( $250, 000 in amount) of the railway, and all its capital stock; also all the stock of the turnpike company, the steam railroad company and of the horse railway company. The price to be paid for all these securities was $115,000, $15,000 of which was to be paid in cash and the balance in mortgage bonds of a new company not to exceed $20,000 a mile. Tennis not having secured Mr. Morrell's 84 bonds and his holdings of Stock in the railway and in the other companies, Secured from Myrick and Shaw, on June 28th, an extension of his contract to September 1st. The contract now in question was made after it was known that Morrell had sold or had gone through the form of a Sale of all his holdings which, as We have Said, Was on or about July 6, 1900. It appeared that the defendants in the action now before us were contemplating building a street railway from Trenton (which is 10 miles north of Bristol, the

northerly terminus of the Philadelphia & Brixtol Railway, the railway in question) South to Philadelphia, and had been unsuccessful in getting a right of way. Coming to the terms of the written contract of August 13, 1900: It contained five articles. Article 1 refers to a tripartite agreement of even date between the same parties and the Union Trust Company, whereby Tennis sells and the defendants in the case at bar buy 126 bonds of the railway company at 40 cents on the dollar, to be deposited with the trust company under the agreement; and the defendants in the case at bar also agree to buy at the same price any further bonds deposited thereunder up to 154 bonds. Article 2 provides that bonds up to $150, 000 may be deposited under the agreement “before the foreclosure Sale hereinafter mentioned,” with a proviso that no part of the 84 bonds “recently held” by Morrell “shall be deposited.” The third article is as follows: “It is understood and agreed that the mortgage securing the said bonds may be foreclosed when the parties of the Second part may elect, the expense thereof to be paid out of the Sum of ten thousand dollarS hereinafter mentioned, said foreclosure to be accomplished by the exercise of the power of sale contained in the said mortgage, or by a bill in equity, or otherwise, as the parties of the second part shall determine.” The fourth article begins with the Statement that “the price to be paid by the parties of the second part to the Said Tennis for all of the said two hundred and fifty thousand dollars ($250,000) of bonds, with all unpaid coupons attached, and the stocks of the allied companies held with the eightyfour thousand dollars ($84,000) of the Said bonds which were recently owned and held by Edward Morrell, is the sum of one hundred and ten thousand dollars ($110,000), that is, forty (40) cents on the dollar for the two hundred and fifty thousand dollars ($250,000) of bonds, making one hundred thousand dollars ($100,000) and an additional sum of ten thousand dollars ($10, v00) to be reserved by the parties of the second part for the costs and expenses attending the foreclosure of the mortgage, the balance of said sum of ten thousand dollars ($10,000) after deducting said costs and expenses to be paid over to the said Tennis.” By “the stocks of the allied companies” it is conceded was meant the stocks of the electric railway company, the turnpike Company, the steam railroad company, and the horse l'ailway COmpany. It is then provided in the fourth article that if all the “$250,000 of bonds and the stocks of the allied companies” are acquired by the defendants in the case at bar “before the foreclosure Säle,” Whether under the COntract in question or by purchase directly from the owners, the defendants are to pay

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