as set forth in the agreement. The question, then, is whether the defendant's signature to the supplemental bill imports an absolute or a conditional liability on his part, and, if the latter, whether the cause of action, if any, has been well pleaded. It is clear, we think, that the liability is a conditional one. The defendant authorizes and agrees to carry out the stipulations contained in the body of the agreement, "if secured within the time named" in it. That is plainly a conditional undertaking, and, according to wellsettled rules of pleading, the condition should have been set out as a part of the contract, and performance of it averred, or the want of performance excused. Newcomb v. Brackett, 16 Mass. 161; Whitaker v. Smith, 4 Pick. 83; Stanwood v. Scovel, Id. 422; Codding v. Mansfield, 7 Gray, 272; Murdock v. Caldwell, 8 Allen, 309; Riley v. Farnsworth, 111 Mass. 152; Palmer v. Sawyer, 114 Mass. 1, 13; Pub. St. c. 167, § 2, cl. 10. The allegation that the plaintiff has done and performed all things on its part in said agreement contained to be done and performed, and that it has kept all of the conditions of said agreement, is not sufficient. The condition should also be set out. Judgment for the defendant.

NEW ENGLAND R. CO. v. BOARD OF RAILROAD COM'RS OF MASSACHUSETTS.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

HIGHWAYS-ALTERATION - RAILROAD CROSSINGS.

The widening of a way is a change in its location, within Pub. St. c. 112, § 129, which provides a method for altering the location of a town way at a railroad crossing.

Report from supreme judicial court, Suffolk county; Marcus P. Knowlton, Judge.

Petition of the New England Railroad Company for a writ of certiorari to review the action of the board of railroad commissioners of Massachusetts ordering petitioner to set back the abutments of its bridge in the town of Blackstone, and to lengthen its bridge so as to conform to the widening of a street. Respondents demurred to the peti tion, and the case was submitted on report for consideration by the full court. Demurrer sustained, and petition dismissed.

F. A. Farnham, for petitioner. F. N. Thayer, for respondents.

BARKER, J. The plain purpose of Pub. St. c. 112, § 129, is to give a method of making any alteration in the crossing of a railroad and a way for ordinary travel which may be necessary for either the safety or the convenience of the public. The alteration may be in the crossing itself, in the approaches thereto, or in the location of the railroad or the way for ordinary travel. If the taking of land for the purposes of mak

*

ing the alteration is necessary, the statute (Pub. St. c. 112, § 130) provides how it shall be taken, and how the damages for the taking shall be assessed and paid. The petitioner's argument is that a widening of a way is not included within the meaning of the words "alteration * * in * the location of * * * the highway or townway" in section 129, or of the words "that the location * of the highway or townway shall be changed" in section 130, and so that the statute does not authorize an alteration of the crossing to be effected by widening the way at the crossing, or, if it does authorize such a widening, that it does not provide compensation for land taken for a widening, and is unconstitutional. It is to be noticed that none of these contentions are made in the appeal. The widening of an existing way is a change in its location, effected by bringing more of the earth's surface within the location. Such a change is contemplated both in section 129 and in section 130. That the intention of the legislature was to provide for any alteration necessary for the public safety or convenience is apparent from a comparison of the provisions of Pub. St. c. 112, §§ 129, 130, with that of St. 1872, c. 262, and of St. 1874, c. 305, and with the decisions of this court in Inhabitants of Lancaster v. County Com'rs of Worcester, 113 Mass. 100, and Boston & A. R. Co. v. County Com'rs of Hampden, 116 Mass. 79. As the statute provides for compensation if land is taken, there is no ground for contending that it is unconstitutional. Pub. St. c. 112, § 130. Demurrer sustained. Petition for certiorari dismissed.

GRAY v. MASSACHUSETTS CENT. R. CO.
(Supreme Judicial Court of Massachusetts.
Suffolk. May 19, 1898.)
RAILROADS-MORTGAGES-FORECLOSURE-RIGHT TO

SURPLUS FUND-REORGANIZATION-LEASES

CONSTRUCTION-PROPERTY PASSED.

1. An arrangement was proposed by certain bondholders of an insolvent railroad company for its reorganization, and by it, and by act of the legislature, a committee was empowered to purchase the road, and hold it in fee, in trust for the bondholders, who should surrender their bonds for preferred stock in the reorganized corporation. The mortgage trustees of the old road sold it at foreclosure sale, and, as all the bondholders had not come in, the committee bid an amount sufficient to take up their holdings, and paid a small part thereof in cash, out of which the trustees paid the expenses of sale, there being no other fund in their hands. The sale was confirmed, and the purchasers afterwards released to the new corporation. The trustees continued to hold the balance of such payment, presumably to take up outstanding bonds, but all the bondholders finally came in, and were satisfied by the issuance of preferred stock as proposed, and the balance remained, no further payments of the price having been made. Held, that such payment was not an earnest, but part of the price, and the balance did not revert to the purchasers, but vested in the new corporation, as the legal successor of the mortgagor.

2. A railroad company demised its road and railroad property of every description, "including" its railroad, and all real estate, rights, and appurtenances connected therewith; also all buildings, etc., and equipment, "and all personal property and estate owned by said lessor"; also all franchises, etc. Held, that each subclause, beginning with the words "also all," relates back directly to the words of demise, and is not restricted by the word "including" to distinctively railroad property, but covers all property of the lessor fairly included by its terms, and not excluded by other terms of the instrument.

3. "Personal property" will include an equitable or contingent right to receive a possible surplus remaining from the proceeds of a foreclosure sale after satisfaction of the debt.

4. Where a railroad company entered into an agreement whereby its lessee assumed entire control of it for 99 years, and paid its debts, and was granted and demised all the lessor's property in terms which included an equitable or contingent right, as the mortgagor's successor, to money remaining from the proceeds of a foreclosure sale, the mere absence of provisions in the instrument specially applicable to such property, and the mere presence of inapplicable provisions, do not exclude it.

Appeal from supreme judicial court, Suffolk county; Robert Grant, Judge.

Petition of Joseph H. Gray, trustee, against the Massachusetts Central Railroad Company and others for instructions. The Massachusetts Central Railroad was sold by trustees of the first mortgage bondholders, to whom petitioner succeeded, and the reorganization committee, representing part of such bondholders, bid $500,000, of which only $20,000 was paid in cash. The Massachusetts Central Railroad Company was organized as successor to the old corporation, and demised the entire road, and the control thereof, with all its property and rights, to the Boston & Lowell Railroad Corporation, which in turn demised to the Boston & Maine Railroad. All the remaining bondholders had come into the reorganization arrangement, and their obligations against the old company had been discharged by the issue of preferred stock in the new company in lieu thereof. A part of the $20,000 was held by the trustee, and was claimed, respectively, by the Massachusetts Central Railroad Company, in its own right and as assignee of the purchasing committee, by the Boston & Lowell Railroad Corporation, and by the Boston & Maine Railroad. There was a decree ordering the trustee to pay over such fund to the Boston & Maine Railroad, and the Central Massachusetts Railroad Company appealed. Affirmed.

Following is the agreed statement of facts filed by the parties, viz.:

"The accountant here, Joseph H. Gray, is the successor of Messrs. Chapman, Haven, and Talbot, trustees for bondholders under a trust deed or mortgage given by the Massachusetts Central Railroad Company to secure an issue of bonds dated January 1, 1880. The mortgage in question was foreclosed by a sale made under decree of court upon bill in equity to foreclose, brought in the supreme judicial court in this county (Equity, No. 799 of 1883). The

decree of sale was made in May, 1883, and the sale occurred shortly afterwards. The mortgaged property was bought in at the sale by a committee of the bondholders, consisting of Messrs. S. N. Aldrich, Thomas H. Perkins, and Henry Woods, acting on behalf of the bondholders under an act of legislature. Acts 1883, e. 64. This act (sections 3, 4) authorized the three persons last named to buy in the property at the trustees' sale on behalf of the bondholders, and organize a new corporation, in which the bondholders were to receive preferred stock for their bonds, and the stockholders of the old company received common stock, the committee upon such reorganization to convey the property to the new company after first indem nifying themselves and paying the trustees for their services, expenses, and liabilities. The following is a copy of the agreement under which the old bondholders in the Massachusetts Central Railroad Company deposited their bonds with the New England Trust Company: "Massachusetts Central Railroad Company.

"Memorandum.

"First. The holders of the outstanding bonds and coupons shall, on or before the first day of March, 1883, deposit the same with the New England Trust Company, of the city of Boston, which shall act as the custodian thereof, and will issue to the depositor a negotiable receipt, reciting the trusts and conditions under which such bonds and coupons are deposited.

"Second. The holders of such receipts will receive in exchange therefor, when authorized, preferred stock, which shall stand next after the first mortgage bonds hereinafter mentioned, at the rate of ten shares, of $100 each, for every bond, and one share for every one hundred dollars of overdue coupons so deposited; any fractional parts of coupons to be represented by script [sic], which shall be convertible into preferred stock, upon presentation of one hundred dollars in amount thereof. This preferred stock shall be entitled to dividends not exceeding 8 per cent. per annum, if earned, and the same are to be paid before any earnings shall be divided upon the common stock.

““Third. The common stock shall relinquish its voting power and control of the corporation until the preferred stock shall have received 8 per cent. dividend in any one year.

46

'Fourth. There shall be issued 7 per cent. gold bonds, having 30 years to run, to the amount of $25,000 per mile of the railroad, if necessary, the same to be secured by a first mortgage upon the property and franchise of the company. These bonds shall be redeemable at the option of the company, at any time after ten years from their date, by the payment of not exceeding 10 per cent. premium, and the interest due thereon; and they will be offered at par to the holders of preferred and common stock for a period of thirty days, under such regulations as shall hereafter be made by the directors, before be

ing placed upon the market or otherwise offered for sale.

"Fifth. There shall be a managing committee, to consist of Samuel N. Aldrich, president of the company, and Messrs. Thomas H. Perkins and Henry Woods, of the board of directors, who shall arrange and carry into effect the details of the plan herein set forth. This committee shall have full power to represent the company, and the members thereof shall be the attorneys in fact of the parties depositing their bonds and coupons, and of the holders of the receipts issued therefor, and shall be authorized to purchase and hold, for their account, the property covered by the existing mortgage, in the event of a sale thereof.

"Sixth. The agreement hereto appended not to be binding until the owners in threequarters in amount of the outstanding bonds shall have subscribed thereto; and, in order that no advantage may be gained by the holders of bonds not surrendered, the bonds so deposited shall not be canceled until the preferred stock is issued and the plan perfected.

"It is understood that should the reorganization herein contemplated be confined to the present chartered limits of the Massachusetts Central Railroad Company, or such extensions thereof as shall be obtained from the legislature, then the preferred stock and new bonds shall be issued by that company, or (in the event of a sale under the existing mortgage) its successor. But should a consolidation be effected with another railroad corporation or corporations for the purpose of enlarging the railroad, then the outstanding bonds and coupons of such other corporation shall be retired, and preferred stock issued therefor; the result of such consolidation being the formation of a new corporation, with preferred stock consisting of the present outstanding bonds of the corporation. The details of this will be arranged by the managing committee, as the same may be authorized by law, and the new bonds to be issued shall be secured by a first mortgage, covering the entire property and franchises of the consolidated company.

"We, the undersigned, owners of the first mortgage bonds of the Massachusetts Central Railroad Company, set against our respective names, do hereby signify our acceptance and approval of the plan set forth in the foregoing memorandum, and in consideration of one dollar to each of us paid by said company, the receipt whereof is hereby acknowledged, we do hereby severally covenant and agree to and with said company that we will, on or before the first day of March, 1883, deposit our bonds and coupons with the New England Trust Company, of the city of Boston, and receive in lieu thereof the receipts and scrip, convertible into preferred stock, as herein set forth; and we do hereby severally make, constitute, and appoint Samuel N. Aldrich. of Marlboro, and Thomas H. Perkins

and Henry Woods, of Boston, all in the commonwealth of Massachusetts, or a majority of them, our true and lawful attorneys, irrevocable, to arrange and carry into effect the details of said plan, hereby granting and giving unto our said attorneys, or a majority of them, full power to act for us in all things and matters necessary therefor, including power and authority to purchase and hold for our account the property embraced in the mortgage securing our bonds, should the same be sold under a foreclosure of said mortgage.

"'Boston, January 20, 1883. "Name. Residence. Number of Bonds.

Numbered as Follows:'

"In accordance with the above agreement, the Central Massachusetts Railroad Company was formed, and its preferred stock issued to the bondholders. All the bondholders, save the owner of one bond of $1,000, at once deposited their bonds and received their stock in accordance therewith. There were some questioned coupons which have since been settled, all of which hereinafter appears. The bonds deposited with the New England Trust Company are still in the hands of that company, and would probably have been canceled but for this litigation, as they are of no further use. The New England Trust Company makes no claim, as it was a mere depositary, and the old bondholders make no claim, as under this agreement they took preferred stock. The counsel who represent the Central Massachusetts Railroad Company represent a large majority in interest of the preferred stockholders, and can appear for them if desirable; but the stockholders, if they have technical rights other than as through the Central Massachusetts Railroad Company, make no claim excepting through the company whose stock they hold. The new company was organized under the name of the 'Central Massachusetts Railroad Company,' the name of the original company being thus slightly changed from Massachusetts Central to Central Massachusetts. The sale was confirmed by decree of the supreme judicial court in the suit above referred to, November 17, 1883. The purchase price was $500,000, and the report of the original trustees filed in said suit shows cash received, on account of purchase price, $20,000, and prays for confirmation of the sale, and that the mortgage be declared foreclosed, and a deed be made to the purchasers on payment of the balance of the purchase price. It also asks for a decree of distribution of the money on hand, being said $20,000, less certain charges, and of the balance of the purchase price which remained to be paid 'proportionately among the holders of the debt secured by said indenture of mortgage.' The final decree orders the sale confirmed, and declares the mortgage foreclosed, and orders a conveyance to be made to the purchasers upon payment of the balance of the purchase price, and on giving a bond of indemnity

to the trustees against any liability incurred by the latter in the exercise of their trust. The decree, however, makes no order regarding a distribution of the proceeds of sale. The trustees above named conveyed the property to the purchasers, Messrs. Aldrich, Perkins, and Woods, above named, by deed dated January 29, 1884. See Middlesex Registry of Deeds, Vol. 1655, fol. 371. Copies of the decrees of the court and foreclosure proceedings are appended to this deed. The committee of bondholders above named in turn conveyed to the new corporation, the Central Massachusetts Railroad Company, by deed of release dated November 24, 1886. The new company, reorganized as aforesaid under the name of the Central Massachusetts Railroad Company, leased the road to the Boston & Lowell Railroad Company by lease dated December 7, 1886, for the term of 99 years, a printed copy of which accompanies this brief. The Boston & Lowell Railroad Company thereafter leased its road, including all roads and property held by it under lease to the Boston & Maine Railroad Company, by lease dated June 22, 1887, and running for 99 years from April 1, 1887. The effect of the latter instrument was an assignment or sublease of the lease made by the Central Massachusetts to the Boston & Lowell.

"As appears by the report of the trustees under the original mortgage above referred to, that is to say, the report made to the supreme judicial court in connection with foreclosure proceedings,-those trustees received a certain amount of money on account of the purchase price from the committee of bordholders who bought in the property. As a matter of fact, the bulk of the purchase price was never paid, excepting by a surrender of bonds as aforesaid, but there remained in the hands of the original trustees the amount which had been paid on account, less certain charges and expenses. This fund was deposited by them in the Merchants' Bank in Boston to their credit as trustees. No disposition has ever been made of it, save by the accountant in this account. The reorganized company, the Central Massachusetts, having laid claim to it from the first, and the trustees all being dead, the present accountant, Mr. Joseph H. Gray, was appointed by the probate court for this county the successor of said trustees. Mr. Gray has presented his account in said probate court, crediting himself with the fund in question, amounting, with interest, to $13.405.17, as paid to the Central Massachusetts Railroad Company. After hearing in the said probate court, by suggestion of the court, an amended account was filed, intended to be in the nature of a bill of interpleader; and hearing was had upon the same in said court, and the court directed the fund to be paid to the Boston & Maine Railroad Company. The question before the court, therefore, relates to the title to this fund. It is further

proved or admitted that the $20,000 paid into court by the purchasing committee was paid by the purchasing committee, and that the purchasing committee has filed or lodged with the Central Massachusetts Railroad Company a disclaimer authorizing the payment directly to the Central Massachusetts Railroad Company. It further appears or is admitted that the inventory of the property leased, called for by the lease of the Central Massachusetts to the Boston & Lowell, was never made. It further appears that the bondssave one, which has since been deposited and preferred stock issued therefor-were all deposited with the trustees. Coupons to the amount of some $150,000 were in litigation until recently, to wit, 1895, when the same were all obtained and canceled. As it is conceived that the court may take the view that the fund should in form be paid to the committee of bondholders, Aldrich, Perkins, and Woods, who bought in the property at the sale, and who paid this money to the trustees on account of the purchase price, said committee appear here, in their capacity as trustees, as claimants, but renouncing any individual claims or property rights therein.

"The facts relating to their claim are, briefly, that, after the proceedings by which they bought in the property and paid this money, they were reimbursed for their outlays in the course of the organization of the Central Massachusetts Railroad Company and the lease of its road to the Boston & Lowell; and in consequence thereof there is at present an agreement between them and the Central Massachusetts Railroad Company that, if the title to the fund is declared to be in them (the said committee or trustees). they will turn it over to the Central Massachusetts Railroad Company. The Boston & Maine Railroad Company base their claim to the fund upon a construction of the lease given by the Central Massachusetts Railroad Company to the Boston & Lowell Railroad Company, the Boston & Maine Railroad Company having succeeded to the rights of the Boston & Lowell Railroad Company by virtue of the lease from the Boston & Lowell Railroad Company to the Boston & Maine Railroad Company, above referred to. Practically, therefore, the only material dispute is as to whether the Boston & Maine Railroad Company is entitled to the fund under its lease of the Central Massachusetts Railroad to the Boston & Lowell Railroad Company. At the time of said lease the Central Massachusetts Railroad Company had no other funds or securities of any kind, and its principal or only property was its roadbed and track partially constructed, and some rolling stock. Its railroad was but partially constructed, and was not in running order. The construction was subsequently completed by the Boston & Lowell Railroad Corporation and the Boston & Maine Railroad. All the documents above referred to are in evidence or may be considered in evidence, or such