made by him. On that day he conveyed the meant, must apply only to the equity of reland to one Sanders. The covenants in the demption.

The covenants in the demption. Allen v. Holton, 20 Pick. 458; deed are as follows: “And I do hereby, for Sweet v. Brown, 12 Metc. 175; Howard v. myself and my heirs, executors and adminis- Chase, 104 Mass. 249. The case at bar dif. trators, covenant with the grantee, and his fers from the case of Estabrook v. Smith, 6 heirs and assigns, that I am lawfully seised Gray, 572, in the fact that in the deed in that in fee-simple of the granted premises; that case there was no provision that the grantee they are free from all incumbrances except should assume and pay the mortgage, and the two mortgages,--one held by Jason A. Rice, court did not find evidence of a clear intenof Shelburne Falls, Mass., for twelve hun- tion that the grantee should take the premises dred dollars, and one held by Luther Keyes, subject to the mortgage. This difference is of Greenfield, Mass., for five hundred dollars, vital, as the existence of such a provision in which mortgages said Sanders assumes and the case at bar shows clearly that it was the agrees to pay; that I have good right to sell intention of the parties that the grantee and convey the same as aforesaid; and that should pay the mortgages, and that the grantI will, and my heirs, executors, and admin- or was not to be called upon to warrant or inistrators shall, warrant and defend the same demnify the grantee against them. Judgment to the grantee, and his heirs and assigns, for- for defendant affirmed. ever, against the lawful claims and demands of all persons.” On April 4, 1889, said San

(150 Mass. 185) ders conveyed the premises to the plaintiff by

GARVEY V. GARVEY. a deed in which he covenanted "that I am

(Supreme Judicial Court of Massachusetts. lawfully seised in fee of the aforesaid prem

Hampden. Nov. 27, 1889.) ises; that they are free of all incumbrances,

WILLS—TRUSTS. except two mortgages,--one held by Jason A. Plaintiff's father left a will bequeathing Rice, of Shelburne Falls, Mass., and one his property to the defendant in trust, and proheld by one Keyes, for $500, which mortgages vided that out of such property $400 should be paid

to plaintiff by the trustee “at such time or times, said Lively assumes and agrees to pay.


and in such sum or sums, as by sickness or otherwards Jason A. Rice, the holder of the first er misfortune he may need the same: providmortgage, demanded payment of his mort- ed, moreover, that any and all such payments gage, and notified the plaintiff that if it was trustee." At the time of his father's death, plain

shall be left entirely to the good judgment of said not paid he should foreclose the inortgage. tiff's family consisted of his wife, three sons, and The plaintiff neglected to pay the mortgage, turee daughters. Subsequently, two sons and one and it was duly foreclosed by a sale. He daughter died, after long sickness. Plaintiff paid claims that this foreclosure was an eviction, of his children, and became indebted for the bal

in part the expenses of the sickness and funerals and that he is entitled to recover the value of ance, amounting to $200. He owned a homestead the land of the defendant under his covenant worth $1,200, and earned $1.50 a day, while his son of warranty in the deed to Sanders.

earned a like amount. His wife was sick, and had

been for some months. Held, that these were misIt was the duty of the plaintiff to pay the fortunes which, under the terms of the will, entiRice mortgage. He now seeks to found upon tled him to such a portion of the bequest as would his own violation of duty a claim against the defray the expenses of the sickness and funerals of

his children. defenılant. The rules of law do not lead to any such unjust and absurd result. Taking Case reserved from superior court, Hampthe whole deed together, it is clear that it is den county; LINCOLN F. BRIGHAM, Judge. not the intention or the scope of the covenant This was a bill in equity brought by Peter of warranty to embrace the two mortgages Garvey against William P. Garvey to comand warrant against them. In construing a pel the payment to plaintiff of his share of deed, as in construing other contracts, the his father's estate, due him under a will of primary object and duty of the court are to which defendant was executor. ascertain what is the intention of the parties, E. H. Lathrop, for plaintiff. C. L. Long, and to carry it into effect, unless there are for defendant. fixed rules of law which make it impossibie. If the intention can be clearly discerned, and MORTON, C. J. Andrew Garvey, by his it is lawful, the court will carry it into effect. will, bequeathed certain sums of money to It is too clear to admit of any doubt that it his son, the defendant, upon the trust to pay was the intention of the parties that the cove- “four hundred dollars to my son Peter Garnant of warranty in the deed to Sanders vey, of said Springfield, to be paid to him by should not apply to the mortgages. The pro- the said trustee at such time or times, and in vision that the grantee is to assume and pay such sum or sums, as by sickness or other the mortgages is consistent only with this in- misfortune he may need the same: provided, tention, and shows clearly that the parties un- moreover, that any and all such payments derstood that Sanders was buying the equity shall be left entirely to the good judgment of of redemption, and not the land free from the the said trustee.” The will makes a similar mortgages. The deed is carelessly drawn, but provision for the testator's son John Garvey, the intention is, beyond reasonable doubt, to and further provides that “any balance of convey the land subject to the two mortgages. said funds not expended at the decease of my To effectuate this plain intention of the par- said sons Peter and John shall be and become ties, the covenant of warranty must be taken the property of said William P. Garvey and in a limited sense, and, as the parties plainly his heirs.”

plainly his heirs." It appeared at the hearing in the

superior court that the plaintiff's family, at other misfortune,” within the fair meaning the death of his father, in June, 1882, con- of the will. He was called upon to endure sisted of his wife, three sons, and three daugh- misfortunes, in the long sickness and death ters; that his eldest son, 27 years old, died in of his children, entailing upon him unusual August, 1885; one of his daughters, 15 years expenses, which can be met only by a mortold, died in November, 1888; and a son, 23 gage or sale of his little homestead. This years old, died in March, 1889,-all of the presents a case of need of assistance which a disease of consumption, after long and lin- fair-minded trustee would consider as calling gering sickness. His family now consists of for aid, according to the intention of the teshis wife, dying of consumption developed in tatur. The defendant acted under a mistaken November last, a daughter 20 years old, a view of his rights and duties when he re-, son near manhood, and a granddaughter, 8 fused assistance on the ground that no money years old. He paid in part the expenses of was left to be spent on the plaintiff's family, the last sickness and funeral of his son and and that "plaintiff was not sick, and did not of his daughter, and is now under liabilities need money for his misfortunes. And when on account thereof to the amount of $200. we consider that in doing this he acted unHis property consists of the house in which der "a hostile disposition towards plaintiff, he lives, worth from twelve to fourteen hun- and the influence of a pecuniary interest to dred dollars. He earns one dollar and a half withhold from plaintiff any benefit or assista day, and his minor son earns the same ance from said trust," and thus appropriate amount. The plaintiff has not himself been the whole trust fund to his own use, we think sick since his father's death. The superior a case is made out in which the plaintiff has court further found the following facts: been unjustly dealt with, and the intention “Upon the death of his daughter, in Novem- of the will defeated. The trustee has not ber last, and again upon the death of his son, fairly performed his duty, and the plaintiff in March last, plaintiff asked of defendant has the right to invoke the aid of a court of money to enable him to pay the expenses of equity to protect and enforce his rights. As the last sickness and funeral of said daugh- the trustee holds other funds upon similar ter and of said son; but the defendant re- trusts, and the amount held in trust is small, fused to pay to plaintiff any moneys, saying we think the interests and rights of the parthat his father did not leave any money to ties can be protected without removing the him in trust for spending it on plaintiff's trustee, by a decree that he shall pay the family, and that, as plaintiff was not sick, plaintiff the amount of the liability he is unand did not need money for his misfortunes, der for the unusual expenses caused him by he had nothing for him. Defendant and the sickness and death of his chillren; leavplaintiff, although both live in Springfield, ing the balance in the hands of the trustee, have no social intercourse with each other, to be paid, if in the future the plaintiff, by and are not friendly towards each other; and, reason of sickness or other misfortunes, is in in refusing the claims of plaintiff for money need, according to the reasonable and imparunder the trust for his benefit in his father's tial judgment of the trustee, as contemplated will, defendant has manifested a hostile dis- in the will. Decree accordingly. position towards plaintiff, and the influence of a pecuniary interest to withhold from

(150 Mass. 178) plaintiff any benefit or assistance from said BASSETT V. CONNECTICUT RIVER R. Co. trust."

(Supreme Judicial Court of Massachusetts. It was not the intention of the testator

Hampden. Nov. 27, 1889.) merely to confer upon the trustee a bare pow CARRIERS OF GOODS-RES ADJUDICATA. er to furnish aid to the plaintiff, if he saw Plaintiff shipped goods over defendant's fit. It contemplates that the plaintiff might, railway, which, upon arriving at their destination, by sickness or other misfortune, be in need house caught fire from a spark from a locomotive,

were stored in defendant's wareroom. The ware of his father's bounty, and its purpose and and the goods were destroyed. Plaintiff brought legal effect are to give him the right to such action to recover therefor, alleging, among other bounty, if he is thus in need. It gives to the things, negligence on the part of defendant in stortrustee a large discretion to judge of such made no proof of negligence, but based his right

ing the goods in an unsafe place. On the trial, he need, but it is not an arbitrary and unlimited of recovery on Pub. Št. Mass. c. 112, $ 214, which discretion. He is to act upon his “good judg- provides that every railway company shall be liament,” and not upon his mere will or caprice, motives. Held, that a judgment in such action is or from selfish or corrupt motives. He ought a bar to a subsequent proceeding, in which the to exercise the good judgment which a rea- right of recovery is based upon the negligence of sonable man, having no hostility to the plain

the company in storing the goods. tiff, or selfish interest of his own, would ex Exceptions from superior court, Hampden ercise under the same circumstances. Wil- county; THOMPSON, Judge. son v. Wilson, 145 Mass. 490, 14 N. E. Rep. This action was brought by Henry L. Bas521. It seems to us that the facts of this sett against the Connecticut River Railroad case show that an exigency in the plaintiff's Company to recover for certain goods which life has arisen in which his father intended had been stored in defendant's warehouse, that he should have assistance from the be- and, while so stored, had been destroyed by quest in his favor in the will. He needed fire. The declaration is as follows: "First such assistance by reason of "sickness or Count. The plaintiff says the defendant is a

common carrier, and transported over its on the contrary, the defendant stored the road certain goods and chattels belonging to same in an unsafe, place, and in a building the plaintiff, and agreed to store the same in wholly unfit for such storage, and because of a reasonably safe warehouse, and take reason- the failure of the defendant to use reasonable able care of the same; and the plaintiff says care in reference to the storage of said goods, the defendant did not store the same in a and in providing a suitable store-house, and store-house which was reasonably safe, and by reason of the defendant's negligence theredid not take to guard and in, the said goods and chattels were wholly protect the same; and by reason of such fail- destroyed by fire, to the great damage of the ure of the defendant to keep its said agree- plaintiff.” The defendant denied each and ments the plaintiff's goods and chattels were every allegation of the declaration, and allost and destroyed by fire. Second Count. leged negligence on the part of the plaintiff. And the plaintiff says the defendant is a com- The case was submitted on an agreed statemon carrier, and transported certain goods ment of facts, showing substantially the and chattels belonging to the plaintiff to above facts, and judgment was rendered for Chicopee, and negligently deposited the same the defendant. Upon this showing the suin an unsafe warehouse, and neglected to perior court ruled that the judgment in the give the same proper care and attention; and foriner action was a bar to this action, and by reason of such negligence on the part of the plaintiff excepted. the defendant the said goods and chattels. Luther White, for plaintiff. Wells & were lost and destroyed by fire.” Both of Barnes, for defendant. the foregoing counts are for the same cause of action. The defendant, in its answer, set MORTON, C. J. The principles which govup a prior judgment obtained in an action for ern this case are well stated in Foye v. Patch, the same relief sought in this action, and on 132 Mass. 105, 110. A former judgment, if the hearing the following facts were submit- rendered upon the merits, constitutes an abted to the court, under agreement: The solute bar to a subsequent action, for the plaintiff shipped certain goods from Provi- same cause of action, between the same pardence, R. I., over defendant's road, to Chic-ties. The parties are concluded by the judgopee, Mass. The goods arrived at Chicopee ment, not only upon all the issues which were March 26, 1887, and were stored by the de- actually tried, but upon all issues which fendant in its warehouse, in its freight de- might have been tried, in the former action; pot at Chiropee. They remained there until so that a new action, for the same cause of March 30th, when the depot.caught fire from action, between the same parties cannot be a spark from one of defendant's locomotives maintained on grounds which might have and was burned, with its contents. It ap- been tried and determined in the former acpeared that the only notice plaintiff had of tion. In the case at bar the parties and the the arrival of the goods was from a teamster cause of action are the same as in the suit of not employed by the defendant, who solicited Bassett v. Railroad Co., reported in 145 Mass. the work of reinoving them when plaintiff 129, 13 N. E. Rep. 370. In each suit the was ready to have them moved. The plaintiff cause of action is the loss by fire of the plainbrought an action to recover the value of the tiff's gouds while in the warehouse of the degoods destroyed, basing his claim on Pub. St. fendant. The second count of the declaraMass. c. 112, § 214, relating to the liability tion in the former suit is in legal effect the of railroad corporations for injuries to prop- same as each of the counts in the present suit. erty from fire caused by sparks from its lo- It charges the defendant with negligence in comotives. The declaration in this former keeping the goods in its warehouse. The action was as follows: (1) The plaintiff fact that the plaintiff, either by his laches or says the defendant is a corporation operating misfortune, failed to prove any negligence, a railroad within this commonwealth, and on and chose to rest his case solely upon the liathe 30th day of March last, at Chicopee, in bility of the defendant under Pub. St. c. 112, said county, certain goods and chattels be- $ 214, is immaterial. The question of neglilonging to the plaintiff were destroyed by gence was one of the issues involved in the fire, communicated thereto by the defend- case. He then had his day in court to prove ant's locomotive engines, to the great dam- this issue. It might and ought to have been age of the plaintiff. (2) And the plaintiff tried in that case. If his proof had shown further says the defendant received for stor- negligence, he would have been entitled to age certain goods and chattels belonging to judgment on that ground. Having failed the plaintiff, and the defendant agreed to use to show negligence, a judgment against him reasonable care in providing a store-house in is a bar to any future action for the same which to keep the same, and in storing, keep-cause of action. Interest reipublicæ ut finis ing, and protecting them. And the plaintiff sit litium.

And the plaintiff sit litium. The superior court correctly says the defendant did not use reasonable care ruled that the former judgment is a bar to in storing, keeping, and protecting such goods this suit. Bigelow v. Winsor, 1 Gray, 299; and chattels, and did not provide a suitable Spaulding v. Arlington, 126 Mass. 492. Judgwarehouse in which to store the same; but, ment for defendant.

(150 Mass. 239)
SLATER 0. LAMB et al.

run before the alias was taken out. It was (Supreme Judicial Court of Massachusetts. then too late to begin a new levy under the Worcester. Nov. 29, 1889.)

original execution by giving a second notice. ALIAS EXECUTION-SALE.

Pub. St. c. 171, § 22; Prescott v. Wright, 6 Upon a sale of land under an execution, the Mass. 20, 22. The only thing to be done was purchaser failed to fulfill the terms of the sale, to get an alias. In Croacher v. Oesting, ubi turn thereon, handed the execution back to the supra, and in Bell v. Walsh, 130 Mass. 163, creditor's attorney. He elected to treat the sale the notices under which the respective sales as a nullity, and in good faith made an indorse- took place were both given within 60 days ment on the execution that it had never been in from the date of the writ. the hands of an officer, and asked for an alias execution, which was issued, and sale duly made

As to the manner in which the alias exethereunder. Held, that the failure to make a re- cution was procured, no doubt it would have turn on the first execution did not invalidate the been more regular, because more strictly acsale under the alias execution.

cording to the truth, for the officer to have Exceptions from superior court, Worces- returned the original execution unsatisfied. ter county; HAMILTON B. STAPLES, Judge. But the effect was the same whether the

This was a plea of land by Horatio M. alias execution was issued on that ground or Slater against Ellen B. Lamb, to recover on the ground that the original never had lands sold on execution on a judgment in been in the officer's hands. Either way the favor of the Slater Woolen Company and creditor only got what he was entitled to. against Rufus Lamb, husband of the defend- If it be suggested that the $100 received by ant.

the officer on the first sale ought to have been W. S. B. Hopkins, for plaintiff. W A. applied in satisfaction of the execution, and Gile, for defendant.

the alias taken out for the residue only, the

answer is that, whether or not it would have HOLMES, J. This is a real action. The been in the power of the parties to adopt that demandant purchased the premises at an ex- course, they elected to avoid the sale ab initio; ecution sale, and the only question raised by and upon their avoidance, properly so called, the report is whether the execution was of the contract under which the purchaser valid. A valid execution was issued on paid and the officer received the money, the February 18, 1887, and was put into the purchaser became entitled to have the money hands of Shumway, a deputy-sheriff. He back. Coolidge v. Brigham, 1 Metc. 547, advertised and sold the land at auction in due 550; Ballou v. Billings, 136 Mass. 307. It is form, and received $100 down from the pur- found that the officer holds the money subject chaser. The purchaser, however, was un to the order of whoever has the right to able and refused to pay the rest of the price, claim it. The suggestion that, if the officer or to take the deed. Afterwards, by arrange- had made a return, the case would have been ment between Shumway and the creditor, the within Pub. St. c. 172, § 53, misapprehends levy was abandoned, the proceedings on the the purpose of that section, which is directed execution were treated as a nullity, and the to cases where executions have been fully execution was handed back to the creditor's levied, and then have been found to be inattorney, with no return upon it. The 60 operative, either wholly or in part. See days from the date of the execution having Perry v. Perry, 2 Gray, 326. Judgment for elapsed, the attorney in good faith indorsed demandant. upon it a certificate that it had never been in the hands of an officer, and was unsatisfied;

(150 Mass. 237) whereupon an alias execution was issued un- NORCROSS et al. o. INHABITANTS OF MILder which the sale to the demandant took

FORD. place. It is agreed that, if this execution (Supreme Judicial Court of Massachusetts. was lawful, the proceedings of the officer un

Worcester, Nov. 29, 1889.) der it were sufficient to maintain the plain

TAXATION-ERRONEOUS ASSESSMENT. tiff's case. There is no doubt that the offi

When property is improperly assessed for cer and creditor had a right to abandon the taxation, the owner's sole remedy is by an applicafirst sale. Croacher v. Oesting, 143 Mass. just assessment, as provided in Pub. St. Mass. &

tion to the assessors for an abatement of the un195, 9 N. E. Rep. 532. We see no reason 11, $ 69, and he cannot maintain an action at law for denying the validity of the alias execu- to recover taxes paid upon such improper assesstion. It is to be presumed that the first levy ment. Richardson v. Boston, 20 N. E. Rep. 166,

followed. was begun by notice of the first sale, that being the mode provided by statute in case of a Exceptions from superior court, Worcester sale. Hardy v. Safford, 132 Mass. 332, 334; county. Pub. St. c. 172, § 45. But this notice would This is an action brought by James A. not apply to a subsequent sale, because the Norcross and others against the town of Milauction at which the first sale took place was ford, to recover a portion of the taxes paid adjourned sine die, and the notice required by by them upon personal property. The plainPub. St. c. 172, § 45, is notice of the sale by tiffs are partners under the firm name of Norwhich the levy is made. By this section the cross Bros., and are engaged in the business levy is to be “considered as made at the time of contracting for the erection of buildings. of the first notice of such sale." The 60 days They worked quarries at Milford, where they from the date of the original execution had 'obtained the stone used in their buildings.

Nearly all the stone so quarried was shipped Exceptions from superior court, Worcester to their main office, at Worcester, to be cut, county. and a portion of it to the different places. Prosecution of John Stratton for the unlawwhere they were erecting buildings. They ful sale of intoxicating liquors. Exceptions kept no stone-yard at Milford for the sale of by defendant. cut stone, and their places of business for A. J. Waterman, Atty. Gen., and H. A. stone cutting and dealing in stone were at Wyman, Asst. Atty. Gen., for the CommonWorcester and Boston. There was some wealth. T. G. Kent, and Geo. T. Dewey, for stone cut for their buildings and some un- defendant. shipped stone in their yards and sheds at Milford on the 1st day of May, both in 1886 and MORTON, C. J. The defendant had a license 1887. On this property they were assessed as an innlıolder, and also a license of the first and taxed in both years. These taxes they class, under Pub. St. c. 100, $ 10, to sell liquor paid under protest, after demand and pro- to be drunk on the premises. The superior ceedings to collect the same had been begun. court ruled that the last-named license was. This action was brought to recover the money invalid, because it did not specify the room so paid, and they recovered judgment for or rooms in which such liquor should be sold $475.20. Defendant excepts.

or kept. This ruling was erroneous. The W. S. B. Hopkins, for plaintiff. H. E. statute provides that each license of the first Fales, for defendant.

class shall be subject to the condition “that

the licensee shall not keep a public bar, and C. ALLEN, J. The plaintiffs do not con- shall hold a license as an innholder or comtend that the assessment for their machinery mon victualer, and shall specify the room or and boilers and engines, in 1886, and for the rooms in which such liquors shall be sold or same, and also for their horses and oxen, in kept by a common victualer. No person 1887, was improper; but they contend merely licensed as aforesaid, and not licensed as an that they were improperly assessed in 1886 innholder, shall keep, sell, or deliver any such for their stone quarried and dressed, and in liquors in any room or part of the building 1887 for their stock in trade; and the superior Pub. St. c. 100, $ 9. It is clear that this does

not specified in his license as aforesaid.” court, agreeing with these views, gave judgment for the plaintiffs for the sums paid by not require that a license issued to one who the plaintiffs for the latter taxes,--the atten- holds a license as an innholder should specify tion of the court not being called, as we were the room or rooms in which the liquor shall informed at the argument, to the objection be sold or kept. The provision as to specifynow urged by the defendant, that, assuming ing the rooms applies only to a license to sell the facts to be so, the plaintiffs' sole remedy liquors issued to a common victualer, and not was by an application for an abatement, un to such a license issued to an innholder. If der Pub. St. c. 11, § 69. This objection must there could be any doubt as to the construcprevail. The rule of law has been settled for tion of the provision of the public statute many years, and is not modified by the fact which we have quoted, it would be removed that the plaintiffs were non-residents of the by a reference to St. 1880, c. 239, § 1, of which town, or that the items of personal property such provision was intended to be a re-enactwere distinguishable from each other. Being ment. That section, after providing that the properly taxable in each year for certain per

license shall specify the room or rooms in sonal property, they cannot try the question, which liquors shall be sold, and that no in an action at law, whether other personal licensee shall sell in any other part of the property was lawfully assessed to them or building, contains the express proviso "that not. Richardson v. Boston, 148 Mass. 508, this section shall not apply to persons hold512, 513, 20 N. E. Rep. 166, and cases cited. ing an innholder's license." The Public StatJudgment for plaintiffs reversed.

utes were not intended to, and do not, alter this provision of the statute of 1880. Excep.

tions sustained. (150 Mass. 188) COMMONWEALTH 0. STRATTON.

(150 Mass. 241)

STEAD V. CITY OF WORCESTER. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 27, 1889.)

(Supreme Judicial Court of Massachusetts.

Worcester. Nov. 29, 1889.)

OPINION EVIDENCE, Pub. St. Mass. c. 100, SS 9, 10, relating to In an action against a city to recover damlicenses for the sale of intoxicating liquors to be ages for its alleged negligence in allowing one of drunk on the premises, provide that all licenses of its common sewers to become choked up and obthe first class shall be subject to the conditions structed in such manner as to prevent the sewage that the licensee shall not keep a public bar, and from flowing freely, whereby the sewage was shall hold a license as an innkeeper or common forced back and up through a private drain of the victualer, and shall specify the room or rooms in plaintiff into his cellar, it appeared that plaintiff, in which said liquors shall be sold or kept by a com- constructing the drain connecting with the sewer, mon victualer, and that no person licensed as afore- left the cellar end of the drain pipe open, at grade said, and not licensed as an innkeeper, shall keep, with the cellar bottom, with nothing to prevent the sell, or deliver liquors in any room not so specified. water from flowing into the drain, or to prevent the Held, that such license, when issued to one hold- sewage from flowing back through the same. Held, ing a license as an innkeeper, need not specify the that it was permissible to ask the city engineer, room or rooms where the liquors were kept or sold. 'a hydraulic engineer, having general direction of

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