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(192 Mass. 559)

POLAND et al. V. BEAL et al. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 16, 1906.)

1. APPEAL—EQUITY DECREE—EVIDENCE—RE

VERSAL.

The rule that a decree in an equity case

which has been decided either by the superior court or by a single justice will not be reversed on appeal unless found to be plainly erroneous, does not prevent the full court on consideration of the evidence reported from reaching a different conclusion.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3970–3978.]

2. TRUSTS – CESTUI QUE TRUST - IMPROVEMENTS—LIABILITY. A trust having been created for the construction of a hotel, certain intended lessees applied to rent the same for a term of years, provided certain laundry furnishings were put in by the owners. The beneficiaries of the trust notified the trustees in writing to accept the proposition, and offered to furnish $4,000 to provide the laundry furnishings. This letter was shown to plaintiff, who, on the faith thereof, installed the laundry machinery at a cost of $1,340. The machinery was accepted by the sole surviving trustee, and was afterwards used by the beneficiaries of the trust, who became the legal owners of the property. Held, that the purchase of the fixtures by the trustee was within the scope of the authority conferred on them by the letter of the beneficiaries, and that the latter were liable therefor. [Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trusts, § 238.]

Appeal from Superior Court, Suffolk Coun

Action by John C. Poland and others against William F. Beal and others. From a judgment dismissing the bill, plaintiffs appeal. Reversed.

On June 29, 1901, respondent Leslie C. Wead, together with the late Gordon Prince entered into a declaration Of trust for the purpose of purchasing, improving and holding certain real estate in Boston, upon which they caused to be erected an apartment hotel. Prior to March 12, 1902, the trustees issued to respondents William F. Beal and Arthur H. BOW ditch all the Shares Of the hotel trust. Shortly before the hotel was finished Dore & Hammond proposed to the trustees to lease the hotel for ten years, On condition that the trustees install certain laundry furnishings and fixtures. The proposition was submitted by the trustees to Beal and Bowditch and they on March 12, 1902, executed and delivered to the trustees a Written instrument set out below, instructing them to accept the proposition of Dore & Hammond, and agreeing to furnish money up to $4,000 necessary to provide laundry fixtures. Thereafter complainants were shown this written agreement and relying thereon agreed to provide and install the laundry fixtures for $1,340, which they did, after which the fixtures and machinery were orally approved by Mr. Wead acting as sole surviving trustee, but defendants Beal and Bowditch not having furnished the money, Wead refused to pay complainants’ bill, which defendants, Beal and Bowditch thereafter fail

ed and refused to pay, though they became the OWners of the legal title to the hotel property by certain conveyances, and continued to Operate the hotel. The authorization to the trustees is as follows:

“Boston, March. 12, 1902.

“Leslie C. Wead and Gordon Prince, Trustees Of the Carlton Hotel Trust—Dear SirS: The undersigned, owners of all the shares issued by the trustees of the Carlton Hotel Trust, hereby request you to accept the proposition for a lease of the Carlton Hotel for a period of ten (10) years from October 1st, 1903, at an average annual net rental of twenty-five thousand (25,000) dollars, as COntained in the letter from F. L. Dore and R. O. Hammond to Whitcomb, Wead & Co., dated March 10th, 1902, and we agree that we will furnish the money (not exceeding four thousand (4,000) dollars) necessary to provide for the kitchen and laundry furnishings and fixtures required under the terms of their proposition.

“And we further request that you will pay to Whitcomb, Wead & Co. a commission for negotiating the lease at the usual rate, amounting to twenty-five hundred (2500) dollarS, Such payment to be taken from the rentals as collected at the rate of five hundred (500) dollars per annum until the Whole amount is paid. The lease shall be drawn in such usual form as may be acceptable to the trustees.

“Yours truly,
“[Signed] William F. Beal.
*Arthur H. Bowditch.”

H. C. Fabyan and W. N. Poland, for plaintiffs. Carleton Hunneman, for defendants.

BRALEY, J. This is an appeal in equity from a decree dismissing the plaintiff's bill, and the case COmes before uS On a report Of all the evidence, but without any findings of fact. It therefore becomes necessary to consider the evidence under the usual rule, that where in equity a case has been tried and decided either in the Superior court, or by a single justice, the decree from Which the appeal is taken will not be reversed unless found to be plainly erroneous.

But this salutary rule of practice does not operate to prevent the full court, upon consideration of the evidence reported, from reaching a different conclusion. Callanan V. Chapin, 158 Mass. 113, 32 N. E. 941; Goodell v. GOOdell, 173 Mass. 140, 53 N.E. 275; Allen V. French, 178 Mass. 539, 60 N. E. 125; Colbert v. Moore, 185 Mass. 227, 70 N. E. 42; Fleming v. Cohen, 186 Mass. 323, 325, 71 N. E. 563, 104 Am. St. Rep. 572.

There being little, if any, conflict in the evidence upon the question involved, the Credibility of Witnesses ceases to be of importance, and giving to the defendants any benefit to which they may be entitled by force of the rule, We come directly to the principal issue of fact, namely, whether by a fair preponderance of the evidence, the plaintiffs furnished the materials and labor required for the equipment of the laundry within the scope of the authority conferred upon the trustees by the letter of the defendantS Beal and BOW ditch. It clearly appears that the intended lessees Wrote a letter to a firm of real estate brokers, containing a proposal to lease the trust estate for ten years at a specified rental, but as a part of their offer they required that certain laundry furnishings and kitchen fixtures should be provided by the owners. While this letter was not put in evidence, and it does not appear in what particular form these requirements were stated, yet the inference fairly is to be drawn that they were included in a general statement without any description of the several articles which composed the complete outfit which was required to enable them to carry on the hotel. By the letter of the defendants, subsequently Written, the trustees were requested to accept this offer, and being the managers and in control of the property, it reasonably follows that by implication they also requested to provide such furnishings and fixtures as had been specified. In response to this request, it was uncontroverted that the trustees informed the lessees of this offer, and exhibited the letter to them and to the plaintiffs. The lessees and the plaintiffs in accordance With these preliminary propositions, then agreed upon certain articles which are described in the bill as “laundry furnishings and fixtures known as laundry machinery,” and the plaintiffs aS a result Of their COnference With the trustees and lessees Submitted to the former an estimate, including the price, with the cost of installation, and this estimate was duly accepted. It is a Warrantable inference naturally following from the situation and conduct of the parties up to this time, that the contract With the plaintiffs which thereupon followed was entered into by the trustees, acting as managers of the property, and Who also may be said to have represented the defendants, not only in accepting the terms of the proposed lease, but in providing the articles Which had been called for by the lessees, by installing the “kitchen and laundry furnishings and fixtures required under the terms of their proposition.” Neither was it disputed that in compliance therewith, these articles were placed in the hotel, nor does it appear from the testimony that the defendants ever contended that the equipment so furnished did not meet the requirements of the lessees, or that it was in excess, or differed from the understanding by the defendants of the phrase, “laundry furnishings and fixtures” aS used in their letter. After the completion of the Work, Wead,

as surviving trustee, gave to the plaintiffs in writing his approval of their bill, with a statement that the materials which they had furnished were according to the contract, and that they were entitled to payment, whereupon interviews followed between the plaintiffs, the surviving trustee, and the defendant Bowditch. If the testimony of Bowditch is accepted as correctly stating the substance of the interviews with him, he neither disputed the amount claimed as being incorrect, nor sought to avoid liability upon the ground that the articles furnished Were not COmprised within the terms of the offer made by his firm to the trustees. While not conclusive upon this aspect of the case, it is also of significance that he testified, “I knew What the contracts were from these various items,” even if the phrase used referred not only to the contract with the plaintiffs, but also to the other two contracts which also appeared in evidence, as these contracts ShoWed an aggregate expenditure of something less than $4,000, Which Was the maximum limit fixed by the firm. The only defense suggested in substance was that their agreement could not be enforced because, as this defendant informed them, the plaintiffs would be obliged to reach and apply the assets of the trust in payment of their bill. From this review Of the Salient features of the evidence, it seems to us, that the machinery which the plaintiffs furnished was provided under a contract made between them and the trustees, which conformed to the general terms and authorization contained in the letter Submitted, and that from the inception of the negotiations to the close of the evidence at the trial, all the parties in interest acted upon this assumption. Having completed their contract, and the amount due therefor not being in dispute, there remains a question of law whether these defendants can be now compelled to advance out of the amount which they promised a sum sufficient to pay the plaintiffs. If, accompanying their proposition, the money which they had engaged to furnish had been placed in the hands of the trustees and retained for the purposes specified, there can be no doubt that the plaintiffs would be entitled to reimbursement therefrom, as to this extent it was intended to form a part of the available assets of the trust. But this course not having been taken, the surviving trustee could maintain a bill in equity to compel payment to him of the Sum Which the defendants agreed to provide, especially where in reliance upon the credit of this promise he made a valid contract With the plaintiffs, and for the purpose of administering full relief, as all the parties are before the court, this result can be accomplished in the present Suit. Van Annim v. American Tube Works, 188 Mass. 515, 74 N. E. 680; Andrews W. Tuttle Smith CO. (Mass.) 78 N. E. 99.

The decree of the Superior court must be reversed, and a decree entered requiring the defendants Beal and Bowditch to pay to the plaintiffs the amount of their claim, With interest and COStS.

Ordered accordingly.

(193 Mass. 70) PICKWICR. V. McCAULIFF.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

1. NEGLIGENCE—DERRICKS - CONSTRUCTION PRECAUTIONS. Where a derrick was being set without guys on the bottom or without the mast being steadied by hand, so that on its being raised, it swung around and struck plaintiff, causing his injuries, defendant was negligent in failing to '. proper precautions in setting up the derI'1CK. 2. SAME—OPERATION OF APPLIANCES. Where an engineer, operating a derrick in process of erection, was directed to lift the mast “just a little,” but he opened the throttle of the engine with a “yank,” which pulled the mast out of its socket, and caused it to swing around and strike plaintiff, the engineer was negligent. [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 27.]

3. SAME—VOLUNTEER-LICENSEE. Where plaintiff was employed by a municipal water and sewerage board to supervise certain stone construction of a reservoir by a contractor, and plaintiff was injured by the contractor's negligence in setting up a derrick, plaintiff was neither a volunteer, nor a mere licensee on the premises, but was there as of right. [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42—44.]

4. SAME – CONTRIBUTORY NEGLIGENCE – ASSUMED RISK. Plaintiff, who was in charge of certain municipal improvements being constructed by a contractor, was injured by the negligence of the contractor’s servants while setting up a derrick. Just prior to the injury, plaintiff and another, without reason to apprehend any danger from the derrick, sat on the boom, conversing about the work, when the mast was pulled from the socket by a sudden jerk of the throttle by the engineer, and swung around, and struck plaintiff before he could escape... Held, that plaintiff was not guilty of contributory negligence, and did not assume the risk. [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 97.] 5. RELEASE—JOINT WRONGDOERS. Where plaintiff had no cause of action against the commonwealth, by which he was employed, for injuries sustained by the negligence of a contractor's servants in the construction of a derrick With which to carry Out a Contract with the commonwealth, the execution of a release to the commonwealth did not relieve the contractor from liability for the injury. [Ed. Note.—For cases in point, see vol. 42, Cent. Dig. Release, $ 66.]

Exceptions from Superior Court, Worcester County; Chas. U. Bell, Judge.

Action by Edwin J. Pickwick against Francis A. McCauliff. A Verdict WaS rendered in favor of plaintiff, and defendant brings exceptions. Overruled.

Plaintiff testified that he Was in the employ of the Metropolitan Water & Sewerage Company at West Boylston, and was asSistant engineer for the board in charge of the works at West Boylston, that a contract had been signed with defendant for the ConStruction of the mason work in connection With a Stone arch by Which the main highway between Worcester and Fitchburg was to Span the Nashua river, and that on the day of the accident the hoisting engine had been set in place by the defendant's men about 40 feet northwest of the bridge; there Were three laborers in the employ of the commonwealth at Work on the ledge preparing the foundation for the bridge, and a derrick had been brought by defendant to the site. The boom of the derrick had been placed on Some timbers and was lying near a discontinued road. The guy ropes were on the top of the mast which had been partly raised, and nothing was attached to the bottom of the mast at the time. The engineer was Ordered to “Just take a strain; raise it a little,” but he put on too much steam, and raised the mast out of the foot block which SWung around and struck plaintiff, causing his injuries.

Ralph A. Stewart, Fredk. H. Nash, and Henry J. Hart, for plaintiff. John R. Thayer, Henry H. Thayer, and Jas. H. McMahon, for defendant.

MORTON, J. This is an action of tort for personal injuries sustained by the plaintiff on July 26, 1904 at West Boylston while at Work as a civil engineer and inspector for the Metropolitan Water & Sewerage Board. There was a verdict for the plaintiff and the Case is here on exceptions by the defendant to the refusal of the presiding justice to give Certain instructions that Were requested. The instructions requested were in Substance that on all the evidence the plaintiff Could not recover, that he was not in the exercise Of due care, that he assumed the risk, that he was a mere volunteer or liCenSee and that a certain release given by the plaintiff to the commonwealth operated as a bar to his recovery in this action.

Without reviewing it in detail We think that there was evidence of negligence on . the part of the defendant. There was testimony tending to show that there should have been guys on the bottom of the derrick or that it should have been steadied by hand. And the jury were warranted in finding, if they did so find, that the accident was due to failure on the part of those in charge of the Work of setting up the derrick to use one Or the other of these precautions. The jury might also have found that there Was negligence on the part of the engineer in regard to the manner in which he operated the engine. One Witness testified that he, the engineer, “opened the throttle of the engine; he gave it a yank; he didn't intend to pull it out so far * * * if just a strain had been taken no trouble would have happened. An excessive yank caused the trouble.” It could not be ruled as matter of law that the plaintiff was a mere Volunteer or licensee Or that he Was not in the exercise of due care or that he assumed the risk. The defendant concedes that the plaintiff rightfully entered on the premises Where defendant’s men were setting up the derrick. If the jury believed the plaintiff as they must have done, he was there in the performance of duties required of him by the nature Of his employment under the contract between the defendant and the COmmonwealth, and therefore Was not a Volunteer or licensee. And the jury properly could have found, and no doubt did find, that in sitting down on the boom as he and Mr. Allen did the plaintiff had no reason to apprehend any danger from the derrick and therefore Was not Wanting in the exercise of due care, and did not asSume the risk of the accident which occurred. Mahar V. Steuer, 170 Mass. 454, 49 N. E. 741; McMahon V. McHale, 174 Mass. 320, 54 N. E. 854. The remaining question relates to the effect of the paper signed by the plaintiff agreeing in consideration of receiving his pay While absent from duty and being indemnified for hospital expenses and doctors’ bills to make no claim upon the Commonwealth for the injury. We assume in favor of the defendant that the paper, though not under Seal, operated as a release of any claim which the plaintiff had against the commonwealth. It is Well Settled that a release of One of Several joint tort-feasors will Operate as a bar to a recovery against the others. But in Order to have that effect We think that the party to whom the release is given must be One against whom an action could or might lie and a claim had been made for Or On account of the alleged tort. It is not necessary that it should appear that he was in fact liable (Leddy v. Barney, 139 Mass. 394, 2 N. E. 107) or that there should have been concert of action amongst the alleged joint tort-feasors (Stone v. Dickinson, 5 Allen 29, 81 Am. Dec. 727). A gift from one of the joint tortfeasors will not operate to bar a recovery against the others. Leddy v. Barney, supra. There must be something in the nature of a claim on the one hand and of possible liability under the rules of law applicable to the matter On the Other in Order to render the release a bar to recovery against other joint tort-feasors. could have been maintained against the commonwealth for the alleged injury. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N. E. 854, 8 L. R. A. 399. It was not legally answerable in tort to the plaintiff or to any one and besides no claim Was made by the plaintiff against the commonwealth. What was received by the plaintiff from the commonwealth must be regarded therefore

In the present case no action ,

as in the nature of a gift or gratuity and not as something paid in satisfaction of an injury for which it was or might be liable according to established rules of law or of a claim made upon it by the plaintiff. Exceptions overruled.

(193 Mass. 21) BARNES v. SQUIER.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 16, 1906.)

1. APPEAL–RECORD-BILL OF ExCEPTIONSAMENDMENT. The Supreme Judicial Court has no power to allow an amendment of a bill of exceptions. and, if there is any reason for an amendment, the proper course is to strike the case from the docket and remit it to the court in which the exceptions were allowed. [Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2830–2833.]

2. DAMAGES-ASSESSMENT ON DEFAULT—SETOFF AND COUNTERCLAIM. Defendant was not entitled to introduce evidc.ce in support of his declaration in setoff, upon a hearing for an assessment of damages, after his default. [Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 525.]

3. EXCEPTIONS, BILL OF-AMENDMENT—TIME FOR MOTION. After protracted and expensive proceedings on a petition for the proving of exceptions, petitioner's motion to amend the bill of exceptions comes too late. [Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, § 110.]

4. EVIDENCE - JUDICIAL NOTICE – LAWS OF STATE. The courts take judicial notice of the general laws of the commonwealth. [Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 36, 37.]

5. JUDGMENT—DEFAULT—OPENING DEFAULTSECOND DEFAULT. Where defendant was defaulted, and on motion the default taken off, but he was again defaulted, there was no abuse of discretion in £ns his motion to take off the second deault. [Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 265–268.]

6. ATTORNEY AND CLIENT—ACTION FOR SERVICES—EVIDENCE—ADMISSIBILITY. In an action by an attorney to recover for services rendered in a cause wherein defendant was the plaintiff, defendant alleged fraud and deceit on the part of the attorney. One of the items charged in the attorney's account was for drawing a petition for a writ of certiorari asking for a trial before some judge other than the judge before whom the cause was pending, and defendant sought to introduce a part of the petition for certiorari on the ground that, though he signed it, he found after so doing that it petitioned for a speedy trial before the judge in question. It appeared that at defendant's request such part of the petition was removed before filing, and another substituted. Held, that defendant was not prejudiced by the refusal to admit such part of the -petition, as it did not tend to show bad faith on the part of the attorney. 7. WITNESSES-CROSS-EXAMINATION - LIMITING TIME FOR EXAMINATION. Where defendant cross-examined plaintiff from about noon until half past 4 o’clock, asking many questions which were excluded by the court, it was no abuse of discretion for the court, about 4 o'clock to require the crossexamination to be closed by half past 4. [Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 923–930.]

8. APPEAL – PRESUMPTIONs – Ev1DENCE To

SUSTAIN JUDGMENT.

In an action by an attorney to recover

for services rendered defendant in a cause wherein he was plaintiff, it cannot be assumed, on appeal from a judgment for plaintiff, that certain papers, filed in the cause in question, but not in the bill of exceptions on the pending appeal, would have shown that the attorney should have set up certain statutes, which he failed to do.

Exceptions from Supreme Judicial Court, Hampden County; Loranns E. Hitchcock, Judge.

Action by Fred P. Squier against Vincent E. Barnes. Verdict in favor of plaintiff, and defendant brings exceptions. Exceptions OVerruled.

The action was brought by plaintiff to reCOVer from defendant for Services rendered by plaintiff as an attorney in a former action in which defendant was plaintiff, and the defense Was deceit and bad faith On the part of plaintiff. The Writ of certiorari referred to in the Opinion Was a Writ prepared by plaintiff in the former case asking for a trial of such cause before some other judge than the One before Whom it Was pending.

Richard J. Talbot, for plaintiff. Vincent E. Barnes, for defendant.

KNOWLTON, C. J. This is a petition to prove exceptions. The petitioner first filed a bill of exceptions, Within the time preScribed by the statute. He then filed an amended bill as a substitute for the first, and the presiding justice allowed this bill, With three changes, first, an interlineation, by way of "amendment, which stated clearly and correctly the facts referred to in the clause in which the interlineation was made, and Secondly, a cancellation of two paragraphs, on the ground that the exceptions Stated in them were not contained in the original bill, and Were not filed in the clerk’s office within the time prescribed by the statute. See Rev. LaWS, c. 173, § 106. Dorr V. Schenck, 187 Mass. 542, 73 N. E. 532; O'Connell, Petitioner, 174 Mass. 253, 53 N. E. 1001, 54 N. E. 558; Currier v. Williams, 189 Mass. 214, 75 N. E. 618. The petition is to prove that part of the substituted bill which was thus disallowed by the judge. Rev. Laws, C. 173, § 110. The COmmissioner has found that the exceptions disallowed were not seasonably filed, and that the bill allowed by the judge is correct. The parties have, therefore, argued the questions presented by this bill.

Shortly before the argument in this court, the petitioner filed a motion to amend his bill of exceptions. It is familiar law that this court has no power to allow an amendment of a bill of exceptions, and that, if there

is any good reason for making such an amendment, the proper course of proceeding is to strike the case from the docket, and remit it to the court in Which the exceptions Were allowed, to enable the party to obtain an allowance of the amendment there. The motion on file does not suggest Such action; but if it be taken as including a request for this action, there are good reasons why the motion Should not be allowed at this time. In the first place, that part of the motion Which relates to the declaration in set-off is immaterial, as the defendant Was not entitled to introduce evidence in support of his declaration in Set-Off upon a hearing for an assessment of damages after a default. The declaration in Set-Off was in the nature of an independent claim, filed instead of bringing a separate suit. On the defendant's default he lost his right to prosecute it. The paperS referred to do not show On their face that the plaintiff Squier failed to perform his duty properly; and it is never necessary to put in evidence the general laws of the commonwealth. Besides, after protracted and expensive proceedings upon the petitioner's application to prove his bill of exceptions, this motion comes too late. The record before us shows that the petitioner was defaulted in the original case, and On his motion the default Was taken Off. Afterwards he was again defaulted, and his subsequent motion to take off that default Was denied. This denial Was Within the disCretion of the presiding judge, and is not a subject for an exception. Rogers V. Ladd, 117 Mass. 334; Com. v. Quirk, 155 Mass. 296, 29 N. E. 514. The petitioner was not injured by the refusal of the judge to admit a copy of the paper removed from the original petition for a Writ of Certiorari. This Was Offered to prove that the attorney, Squier, Was acting in bad faith. It was originally intended to be read and signed by the petitioner; it was so read and signed, and it had no tendency to show that the attorney was acting in bad faith. It Was Within the discretion of the presiding judge reasonably to limit the crossexamination of the plaintiff by the petitioner. Rand V. Newton, 6 Allen, 38; Com. V. Nickerson, 5 Allen, 518; Demerritt v. Randall, 116 Mass. 331. The petitioner cross-examined this Witness from about noon until half past 4 o'clock, asking many questions which were excluded by the court. About 4 o’clock he was told by the judge that he must close the cross-examination by half past 4. There is nothing to show that this order was unreasonable, or that there was any evidence which the petitioner could reasonably expect to elicit by a further cross-examination of the Witness. It does not appear that the petitioner was injured by the refusal of the court to admit the papers in the case of Barnes V. Norton. Administratrix, to prove that the pleadings

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