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undecided and unadopted at the execution of missions of the facts therein stated in connecthe agreement, but states, as his position, tion with all the other evidence favorable to that:

the plaintiff's contention, the entire evidence "It is quite immaterial whether the contract falls short and does not warrant a jury in of October 26 was legally binding upon the finding that Hurlburt was able, ready and parties to it or not, and it was also immaterial willing to become a tenant on the terms of whether equity would enforce specific performance or not, * * * * the whole question is the defendants, or that the defendants were whether Matthews and Howe accepted Hurlburt in the position of having accepted him as as a person able, ready and willing to beconie such. Upon this issue a verdict should have their tenant on their terms."

been directed for the defendants. It is un. It was entirely possible for the defendants necessary to consider the remaining excepto have said to the plaintiff, as he says in tions taken to the admission or rejection of illustration of his position:

testimony, as well as to the rulings and re"Mr. Woods, you have fulfilled your duty; fusals to rule of the presiding judge. you need not serve us longer. We accept Mr.

Exceptions are sustained and judgment is Hurlburt as a person procured by you, able, ready and willing to become our tenant and to to be entered for the defendants under St. enter into such a lease as we see fit to draw.” 1909, c. 236. The reported facts do not warrant a find

(224 Mass. 438 ing of fact that the defendants accepted

ANDERS v. ANDERS.
Hurlburt as a tenant, or that Hurlburt ever

(Supreme Judicial Court of Massachusetts. was able, ready and willing to become a

Hampden. June 21, 1916.) tenant of the defendants under such a lease as the defendants might see fit to draw. To MARRIAGE 58(7)—ANNULMENT-FRAUD. say that Hurlburt was ready and willing to right to bear the name of a married woman, with

Where a woman marries solely to secure the become a tenant upon such terms as the de- the affirmative intention to leave her husband at fendants might draw, is to contradict the the church door and never see him again, and written "memorandum of agreement” and is does so leave him, the marriage, on his libel, may to say that Hurlburt was without real voice be annulled for fraud. in the apparent negotiations as to the terms Сent. Dig. $ 122; Dec. Dig. 58(7).]

[Ed. Note.-For other cases, see Marriage, of the proposed lease, that followed the execution of the "memorandum of agreement" to Report from Superior Court, Hampden the time when Hurlburt refused longer to County; Wm. F. Dana, Judge. treat with the defendants.

Libel by William Anders against Elsie In relation to the continuance of the nego- Anders to annul marriage for fraud and tiations between the defendants and Hurl- false representations. Case reported. burt, the bill of exceptions states:

The court found that "at no time did the “The plaintiff contended that no negotiations respondent intend to comply with her marbetween the defendants and Hurlburt after Oe- riage contract,

that her only obtober 26 were legally material or competent, and objected to the introduction of any evidence ject in getting married was so that she cou:d tending to show that such negotiations occurred go back to Europe to her mother's with a after October 26. The court having overruled marriage name and a marriage standing on these objections of the plaintiff, the plaintiff did account of her child and herself, or to satnot dispute that certain negotiations between the defendants and Hurlburt continued until isfy the authorities,” and that shortly after November 12, when they were broken off by the ceremony the respondent made an errand Hurlburt.”

an excuse and left libelant and he did not It would seem to be clear that readiness, see her again, but weeks later received a letwillingness and ability to become a tenant ter from her in Europe, stating she would upon the defendants' terms in the absence never see him again. Respondent's illegitiof an express understanding otherwise, pre-mate child was born before she met libelant. supposes and implies that the terms which

P. H. Sheehan, of Holyoke, for plaintiff. are to govern the rights of the parties are or are to be defined, and that so long as LORING, J. It was decided in Dickinson such terms are under discussion there can v. Dickinson, [1913] P. 198, that willful and be in the nature of things, neither a readiness persistent refusal on the part of the wife to nor willingness to become a tenant on the allow any marital intercourse was ground defendants' terms, or an acceptance of such for a decree of nullity of the marrige at the a person as a tenant. Fitzpatrick v. Gilson, suit of the husband. The earlier cases in 176 Mass. 477, 57 N. E. 1000; Roche v. England had proceeded upon the ground that Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. in such a case incapacity in fact on the port A, 510, 79 Am. St. Rep. 345; Cohen v. Ames, of the wife must be made out to enable the 205 Mass. 186, 91 N. E. 212; Goodnough v. husband to get such a decree. But upon great Kinney, 205 Mass. 203, 91 N. E. 293; Clark consideration it was held in that case that v. Bonner, 217 Mass. 201, 104 N. E. 494. the objects for which matrimony exists are as

Moreover, if the "memorandum of agree- much defeated in case the wife willfully perment” be considered neither as a final nor sists in refusing to have marital intercourse preliminary contract, but is to be taken as a when she can as they are in a case where memorandum merely, that is to say, as ad- she is willing but for some reason cannot.

PmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

It has been decided here on the authority in the scope of his employment as servant, deof the English cases preceding Dickinson v. fendant is not liable. Dickinson, ubi supra, that incapacity is servant, Cent. Dig. 88 1217, 1225; Dec. Dig.

[Ed. Note.-For other cases, see Master and ground for a decree of nullity. S-v. 302(1).] s 192 Mass. 194, 77 N. E. 1025, 116 Am. 2. EVIDENCE 77(1)–PRESUMPTIONS_FAILSt. Rep. 240. That was a case of partial

URE TO CALL WITNESS. malformation in both the husband and wife Where plaintiff introduces no evidence to which resulted in incapacity in case of those sustain his claim, the failure of defendant to call two. There is an earlier case in this com- not warrant an inference unfavorable to him.

a witness, even though present in court, does monwealth in which it was held that utter de

(Ed. Note.-For other cases, see Evidence, nial of marital intercourse was not ground for cent. Dig. $ 97; Dec. Dig. m 77(1).] a decree of nullity. See Cowles v. Cowles, 112 Mass. 298. In that case no consummation County ; John D. McLaughlin, Judge.

Exceptions from Superior Court, Bristol of the marriage had ever taken place. The Action for tort for personal injuries by whole contention was disposed of in that case Ralph Poirier against Manuel R. Terceiro. in less than three lines and in these words: Verdict for plaintiff, and defendant except

"It plainly does not go to the original validity ed. Exceptions sustained. of the marriage, and affords no ground for de

Baker & Thurston and Benj. Cook, Jr., all claring the nullity of it.”

of Full River, for plaintiff. Frank M. Silvia Interpreting the terms of that opinion in and E. T. Murphy, both of Fall River, for the light of the petitioner's brief, it is pret- defendant. ty plain that in deciding Cowles v. Cowles

CARROLL, J. The bill of exceptions states this court did not have in mind the case of a that Osborne street, in the city of Fall River, woman going through the marriage ceremony had been duly licensed for coasting. The with a preconceived intention never to al- plaintiff, while on a sled on this street, was low marital intercourse.

injured by a horse owned by the defendant But, however that may be, the facts in and ridden by his minor son. The only questhe case at bar go far beyond those in Cowlestion presented is: Was the minor son of the v. Cowles. In the case at bar the respond- defendant, his servant, and acting within the ent went through the marriage ceremony scope of his employment?

[1] The defendant denied any knowledge with an intention never to perform any one of the use of the horse by the boy, or any of the duties of a wife. She went through permission to use it. This evidence was not the ceremony solely to secure a right to contradicted. There was nothing to show bear the name of a married woman and in for what purpose the boy was riding the that way to hide the shame of having had horse, and even if it could be argued that on an illegitimate child, intending to leave her this day the horse needed sharpening, that husband at the church door and not see him the defendant's blacksmith was Shea, whose again. That plan she carried into effect shop was on Eleventh street, and that the deIt is settled that a contract for the sale of fendant's son was either going to or return

ing therefrom, there is no evidence to show goods is induced by fraud and for that rea- that this was done with the knowledge or son voidable where the purchaser had an in- consent of the defendant. The plaintiff's fatention when the contract was made not to ther testified he had seen the defendant's son perform his promise to pay for them. If an several times driving this horse attached to a intention not to perform his promise renders grocery wagon; but there was nothing to a contract for purchase of property voidable, show that the boy was acting as the servant a fortiori the same result must follow in case or agent of the defendant at the time of the of a contract to enter into "the holy estate plaintiff's injury. Trombley v. Stevens-Durof matrimony." See generally in this connec-yea Co., 206 Mass. 516. 92 N. E. 761; Fletcher

v. Willis, 180 Mass. 213, 62 N. E. 2. tion Barnes v. Wyethe, 28 Vt. 41.

As, on the evidence presented, the boy Cases where a defendant in a bastardy could not be found to have been in the emcomplaint goes through the form of marriage ploy of the defendant at the time of the with the woman in question to secure his dis- plaintiff's injury, it becomes unnecessary to charge intending never to live with her, may decide whether in going to or returning from well involve other considerations. See in the blacksmith shop he was called upon to this connection 1 Bishop, M. D. & S. § 476, pass over Osborne street, and so had departand cases cited.

ed from the scope of his employment, even

if he were then the defendant's servant. We are of opinion that upon the facts set

[2] There being no evidence of the employ'forth in the report the petitioner is entitled ment by the defendant of his minor son, 110 to a decree.

inference could be drawn against him from So ordered.

his failure to call him as a witness. In Tul

ly v. Fitchburg R. R., 134 Mass. 499, 502, the (224 Mass. 435)

plaintiff was struck at a crossing by one of POIRIER V. TERCEIRO.

the defendant's engines. The engineer and

fireman in charge of the engine, were in (Supreme Judicial Court of Massachusetts. court at the time of the trial, and were not Bristol. June 21, 1916.)

called by the defendant. It was urged that 1. MASTER AND SERVANT 302(1)-INJURIES

from this fact an unfavorable inference TO THIRD PERSONS.

might be drawn. Colburn, J., said: Where plaintiff was injured by defendant's

"This would have been so, had the plaintiff minor son, who was not at the time acting with. I introduced evidence tending to sustain her claim:

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

but she could not prove her case by making al- tions which they thought had not been given legations, and asking the jury to consider them in substance. proved because, if they were not true, the de- [1] This was correct practice. While of fendant had the means of showing it. These wit- course a judge may read the requests to the nesses might have been called by either side." jury with such comment as may be necessary

See, also, Backus v. Spaulding, 129 Mass. I in order to state the law correctly, ordinarily 234, 235; McKim v. Foley, 170 Mass. 426, prehensive charge stating plainly and forcibly

it is better and more effective to give a com428, 49 N. E. 625; Buckley v. Boston Elev. the law pertinent to the issues raised. The purRy., 215 Mass. 50, 56, 102 N. E. 75.

pose of a charge is to enable the jury to underExceptions sustained.

stand their duty clearly, and to be enlightened as to the principles of law by which tbeir ac

tion must be controlled. It should be adapted (224 Mass. 415)

as a whole to the presentation of those prinHERRICK v. WAITT.

ciples in words easily understood by the man of (Supreme Judicial Court of Massachusetts.

ordinary intelligence. This end usually can be

accomplished more effectively by the judge Middlesex. June 21, 1916.)

formulating a complete and unified statement 1. TRIAL 263—INSTRUCTIONS-REQUESTS-PRAC- either wholly in his own words or partly by TICE.

quotation from decided cases, with such referIt is proper for the courts to refuse to read ence to the evidence as may be wise to render numerous requested instructions to the jury, but it practical as a guide to a just verdict, rather after the general charge to permit the counsel to than by reading the detached expressions precall attention to any requested instructions not given in the substance,

pared as requests for instructions by counsel [Ed. Note.-For other cases, see Trial, Cent, Dig. on one side or the other and liable to be colored $$ 662, 663; Dec. Dig. Om 263.)

by the necessary bias under which they are 2. TRIAL 278--INSTRUCTIONS–EXCEPTIONS.

framed. Whitney V. Wellesley & Boston St. Court may properly disallow an exception to Ry. 197 Mass. 195, 502, 84 N. E. 95; Maxhis refusal to give a large number of instructions well v. Mass. Title Ins. Co., 206 Mass. 197. as requested and require every error or omission

to 200, 92 N. E. 42; Commonwealth v. Dow, 217 cover requested instructions, to be specifically Mass. 473, 483, 105 N. E. 995. pointed out.

[2, 3] In the case at bar counsel for the de. [Ed. Note. For other cases, see Trial, Cent, Dig. fendant properly made no objection to this $8 686, 689; Dec. Dig. Om278.]

procedure. At the close of the charge here. 3. TRIAL Om 277-INSTRUCTIONS-EXCEPTIONS. ferred again to his requests and excepted to

Upon refusal of the court to give instructions all of them not given in the charge. The judge as requested and denial of an exception thereto refused to allow an exception in that form, say. any errors

or omissions in the general charge, and ing that he was entitled to have his attention after re-examining his requests announced, "I am called to anything which counsel claimed he content." Held, he saved no exception to refusal of had not given, adding, "Now, take your own his requests.

time about this." Thereupon the jury were [Ed. Note.-For other cases, see Trial, Cent. Dig. seated and counsel went through his requests $$ 687, 688; Dec. Dig. On 277.]

for rulings and after doing so, said, “I am con4. APPEAL AND ERROR 248–EXCEPTIONS-NE- tent." CESSITY.

14] This was not the taking of an exception. The allowance of a bill of exceptions cannot The colloquy means that, acting well within preserve exceptions that were never saved. [Ed. Note.--For other cases, see Appeal and Er- tion first stated. He might require any erro::

his right, the judge refused to allow the excerror, Cent. Dig. § 1432; Dec. Dig. Om 248.]

in the charge or failure to cover every request 5. NEW TRIAL Cw104(2)—NEWLY DISCOVERED Evie to be pointed out to him so that it might be DENCE-CUMULATIVE EVIDENCE.

A new trial will not be granted where affidavits corrected. Commonwealth v. Costley, 118 Mass. of newly discovered evidence state substantially 1, 22; Henderson v. Raymond Syndicate, 18; only what defendant and his witnesses testified MÍass. 443, 416, 67 N. E. 427. Counsel accedthat affiants told them; such evidence being merely ing to the soundness of this position, after excumulative,

amining his requests anew, gave the judge t. [Ed. Note. For other cases, see New Trial, Cent. understand that he was satisfied with the mar: Dig. $ 219; Dec. Dig. Om 104(2).]

ner in which the requests had been dealt with.. 6. NEW TRIAL Om97-ABSENT WITNESSES.

That is the only reasonable interpretation of A party unable to obtain the attendance of wit- which the words "I am content" are susceptible nesses and knowing the nature of their testimony | under all the circumstances. It follows that may protect his rights by motion and affidavit un- no exception was saved. Therefore, that bill der rule 30 of the 1906 Čommon-Law Rules of the of exceptions ought to have been disallowed. Superior Court. [Ed. Note. For other cases, see New Trial, Cent. The allowance of the

bill of exceptions by the

. Dig. $$ 195-198; Dec. Dig. Om97.]

judge cannot put life into exceptions which

never existed. He could not affect the rights 7. NEW TRIAL 6-DISCRETION OF COURT.

The granting of a motion for a new trial ordi- 1 of the opposite party in this way. It may not narily rests in the sound discretion of the court, be amiss to add that an examination of the and is not subject to exception.

record does not disclose any error prejudiciul [Ed. Note.--For other cases, see New Trial, Cent. to the substantial rights of the defendant. Dig. $$ 9, 10; Dec. Dig. Om6.]

[5, 6] Several months after a verdict was

rendered in favor of the plaintiff, the defendant Exceptions from Superior Court, Middlesex filed a motion for a new trial on the ground of County; Lloyd E. White, Judge.

newly discovered evidence. To this motion Action by Ralph M. Herrick against Albert were attached the affidavits of two persons wliq H. Waitt. From a judgment for plaintiff from did not testify at the trial, disclosing material an order denying a new trial, defendant brings evidence which each would give if called to the exceptions. Exceptions overruled.

witness stand. But it appears from the excepJohn F. Ryan, of Boston, for plaintiff. Chestions that these "affidavits * state su:ter W. Ford and E. Irving Smith, both of stantially only what the defendant and liis Boston, for defendant,

witnesses testified these deponents told them.."

It is apparent from this fact that the evidence RUGG, C. J. At the conclusion of the evi- was not "newly discovered" and the judge so dence the defendant presented thirty-seven re-ruled correctly. It was known to the defer.dquests for instructions. The judge stated that ant at the time of the trial and in substar ce he should not read them to the jury, but should presented to the jury. The testimony of the deliver his charge and thereafter counsel might, affiants would have been only cumulative. Perif they desired, call his attention to any instruc- haps it would have been more advantageous to

on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

have had them called as witnesses. But if the been in the contemplation of the parties at the time defendant was unable to procure their attend of the wrongful act. ance at the trial, knowing what they had told [Ed. Note.-For other cases, see Damages, Cent. to him and to his other witnesses, he could Dig. $$ 55-57; Dec. Dig. Om 20.] have protected his rights by motion and affi- 10. DAMAGES On 20-DECEIT-MEASURE. davit under rule 30 of the 1906 Common-Law Where plaintiff sold his stock in a corporation Rules of the Superior Court.

of which he was an employé after being induced by [7] The granting of a motion for a new trial deceit: to resign, and after having obtained more ordinarily rests in sound judicial discretion and ages by reason of profits he would have realized is not subject to exception. There is nothing had he not sold such stock, since evidence showed in this record to show abuse of discretion. him to have been in better financial shape to hold Powers v. Bergman, 210 Mass. 346, 96 N. E. stock than before deceit and the sale not necessitat674; Commonwealth v. Borasky, 214 Mass. ed by loss of employment. 313, 322, 101 N. E. 377.

[Ed. Note.-For other cases, see Damages, Cent. There was no error of law in the denial of Dig. $$ 55-57; Dec. Dig. Om20.] the requests for rulings under these circum- 11. DAMAGES O 40(1)-PROSPECTIVE PROFITS-REstances.

COVERY. All exceptions overruled.

Prospective profits may be recovered where the loss was the direct result of the wrong complained of and when they can be proven with reasonable

certainty, and need not be susceptible of calculation (225 Mass. 37)

with mathematical exactness.

[Ed. Note.-For other_cases, see Damages, Cent. LOWRIE v. CASTLE et al.

Dig. $$ 72, 73, 87; Dec. Dig. Om 40(1).] (Supreme Judicial Court of Massachusetts. 12. DAMAGES 40(1)–PROSPECTIVE PROFITS—RE

MOTEXESS.
Suffolk. June 21, 1916.)

Prospective profits cannot be recovered when 1. APPEAL AND ERROR Om959(1)-PLEADING Om reasonable certainty, and the nature of the business

remote, speculative, and not within the realm of 236(1)-DECLARATION-AMENDMENTS. The allowance of successive amendments is profits grounded on a reasonably sure basis of facts.

must be such as to support an inference of definite within the discretion of the court and will not be reviewed unless there has been an abuse of such Dig. $s 72, 73, 87; Dec. Dig. 40(1).]

[Ed. Note.-For other cases, see Damages, Cent. discretion.

[Ed. Note.-For other cases, see Appeal and Er Report from Superior Court, Suffolk County; ror, Cent. Dig. $$ 3825, 3826 ; Dec. Dig. Oo959 (1); W. 0. Wait, Judge. Pleading, Cent. Dig. § 601; Dec. Dig. Om 236(1).]

Action by William J. Lowrie against James B. 2. PLEADING Om 199-DEMURRER-FILING.

Castle. Verdict for plaintiff, and case reported. Under Superior Court Common-Law Rules 5 and 10 of 1906, the court has

discretion to allow a Defendant's exceptions overruled, and judgment demurrer for misjoinder of causes to be filed to a ordered for plaintiff on the verdict. count after successive amendments have restored

Jas. E. Cotter, of Boston, R. D. Silliman, of such count to the pleading, although no demurrer was taken when such count first appeared in the New York City, and Jas. W. McDonald and pleadings.

Jos. P. Fagan, both of Boston, for plaintiff. [Ed. Note.--For other cases, see Pleading, Cent. Alfd. Hemenway, Sherman L. Whipple, Wm. Dig. 88 461-469; Dec. Dig. 199.]

R. Sears, and Edwin H. Abbot, Jr., all of Bos3. ACTION 47JOINDER-CONTRACT AND TORT.

ton (Whipple, Sears & Ogden, of Boston, and Under Rev. Laws, c. 173, § 6, cl. 6, prohibiting David L. Withington, of Honolulu, Hawaii, of joinder of actions in contract and tort, an action counsel), for defendant. for breach of contract of employment cannot be joined with a count for deceit in inducing plaintiff RUGG, C. J. [1] There were three counts in to resign his employment.

the declaration as originally filed, all in con[Ed. Note.-For other cases, see Action, Cent. tract. The writ stated the cause of action to be Dig. $$ 469, 470, 472-489; Dec Dig. 47.]

in contract. Subsequently the plaintiff was al4. CONTINUANCE Om11 – IMPROPER JOINDER OF lowed to amend by substituting a new third CAUSES--TIME TO ELECT.

In a bill which improperly joined counts of count and by adding a fourth count (later elimcontract and tort, the allowance of time in which inated by the sustaining of a demurrer thereto to amend or elect was discretionary with the court. without exception or appeal), and a fifth count

[Ed. Note.-For other cases, Continuance, in contract, and by inserting in the writ after Cent. Dig. $$ 19-24; Dec. Dig. 11.)

the words "in an action of contract," the words 5. PLEADING 252(1)—ALLOWANCE OF AMENDMENT or tort, all counts being for one and the same -EFFECT.

cause of action.” Still later counts sixth and Under Rev. Laws, c. 173, § 121, the allowance seventh in tort for fraud and deceit were added of an amendment adding tort counts to a declara- against the objection of the defendants. The tion is not an adjudication that the new counts are not a misjoinder,

case then was sent to an auditor, before whom [Ed. Note.--For other cases, see Pleading, Cent. protracted hearings were had, who found

that Dig. $$ 736, 737, 738-743; Dec. Dig. Om 252(1).]

the plaintiff failed to establish any of the

counts in contract and that the conversations re6. DAMAGES Omw 103–TORT-MEASURE.

The rule of damages against a tort-feasor is lied on to support them did not reach a meeting that he is liable for an amount commensurate with of the minds and were preliminary to a contract his wrong.

in writing set forth in the report. After the [Ed. Note.-For other cases, see Damages, Cent. auditor's report came in the plaintiff moved to Dig. $8 260-264; Dec. Dig. m103.]

amend in several particulars his seventh count, 7. DAMAGES C20 – LIABILITY OF TORT-FEASOR - upon which the auditor's findings in the plain PROXIMATE RESULT OF TORT.

tiff's favor were based, a part of which was A tort-feasor is liable only for damages prox- denied and the rest allowed, with leave to the imately resulting from the tort, not for those fol- defendants to demur or answer within a specified lowing some other efficient cause.

time. Later the plaintiff on motion was per[Ed. Note. For other cases, see Damages, Cent. mitted further to amend count seven by strikDig. $$ 55-57; Dec. Dig. Em 20.]

ing out so much as had been added by the last 8. DAMAGES em 62(1)-REDUCTION OF LOSS.

amendment so far as it had been allowed. This One who suffers a tortious wrong cannot remain was all within the court's discretion, which and claim as damages the consequences of his in- does not appear to have been abused and which action.

cannot be revised. Barlow v. Nelson, 157 Mass. [Ed. Note.-For other cases, see Damages, Cent. 395, 32 N E. 359; First National Bank of ChelDig. $ 119; Dec. Dig. Om62(1).]

sea v. Hall, 170 Mass. 526, 49 N. E. 917; Fay 9. DAMAGES 20—TORTS—MEASURE.

r. Boston & Worcester St. Ry., 196 Mass. 329, A tort-feasor may be held responsible for such / ::36. S. N. E. 7. damages as may be reasonably supposed to have [2] The defendants then, but within the time

my For other cases see same topic and KEY-NUMPER in all Key-Numbered Digests and Indexes

limited by the court, filed a demurrer, the only The pertinent facts on the merits may be present material part of which was directed to summarized as follows: James B. Castle, on an alleged misjoinder of count seven with the September 2, 1898, made an agreement to purcounts in contract. The demurrer was allowed chase 51,000 shares of stock, which was a conto be filed and was considered. This was within trolling interest, in the Hawaiian Commercial the discretion of the court. Each change in the & Sugar Company, a corporation owning the count was brought about by an amendment and largest sugar plantation in the Hawaiian Isthe defendant could plead thereto. Even though lands. A few days later, at his solicitation, the original form of count seven was restored by the plaintiff gave to him an option on his servthe final amendment, it was within the power ices as manager of this plantation at an anof the Court to permit the filing of a demurrer, nual salary of $12,000. This option was in the on the ground that there was a misjoinder of form of a proposition addressed by James B. counts, when count seven was added. Superior Castle to the plaintiff and by him accepted. Court Common-Law Rules 5 and 10 of 1906; One paragraph was in these terms: Whitney v. Hunt-Spiller Mfg. Co., 218 Mass. "Second. You to have the privilege of buying 318, 105 N E. 1054. Although it is unusual to of the S. N. Castle Estate or of myself, at any permit a demurrer to be filed under the circum- time within three years from October 1, 1898, stances here disclosed, it cannot be said to have five thousand shares of H. C. & S. stock at cost, been unwarranted. There had been a long trial to include interest at 6 per cent. per annum, it before an experienced and able auditor, whose being understood that, in case of such purchase, findings against the plaintiff on the counts in you will dispose of other securities to pay for contract bore strong inherent evidence of be- these as rapidly as you may be able to do so ing sound. If counts were misjoined in law, upon terms perfectly satisfactory to yourself.” the discretion of the Court in allowing a de James B. Castle carried out the agreement murrer to this point was not abused.

for the purchase of the controlling interest in [3] The demurrer rightly was sustained on the stock and caused the plaintiff to be emthe ground of misjoinder of counts. The stat- ployed as manager of the corporation. No term ute prohibits the joinder of actions of contract of service for the plaintiff as manager was statand tort, although counts in each may be joined ed in this written contract. The plaintiff sought when it is doubtful to which division they be to have it made a stipulation in the contract long with an averment that both or all are for that, if the Castle family lost control of the corthe same cause of action. R. L. c. 173, § 6, cl. poration, he should have a contract for five 6. The causes of action set out in the contract years as manager, but James B. Castle did not counts plainly sound in contract. They aver an agree and

the plaintiff waived it. The controlengagement of the plaintiff as manager of a ling interest in the stock represented by this pursugar plantation for periods of time there de- chase of 51,000 shares was divided in unequal scribed by the persons named and a discharge shares between James B. Castle, W. R. Castle. contrary to the terms of the contract. The S. N. Castle Estate (a corporation formed to counts in tort equally clearly set out a cause of manage a part of the estate of the father of action sounding in deceit and aver that certain James B. Castle, the stock in which was held named persons by misrepresentations induced by him and others of his father's family), Henry the plaintiff to resign his position. The groups P. Baldwin and Samuel T. Alexander, the two of persons alleged to be concerned are not identi latter being the leading members of the firm of cal with those named in the contract counts. A Alexander & Baldwin,

agents for sugar plantabreach of contract to continue the employment of tions with offices in Honolulu and San Frana person is a different thing from fraudulently cisco. These persons made an agreement to pool inducing him to resign by making false repre- their interests in the stock until it was paid sentations to him. If there was a breach of con- for in full and thereafter not to sell without tract in discharging the plaintiff, there was no first offering it to other members of the pool at deceit in communicating that information to the same price for which a bona fide outside him. If he was fraudulently induced to resign offer had been made. The plaintiff exercised his his office with the corporation, it is difficult to option to buy 5,000 shares of the stock from see a breach of contract. The full trial before the S. N. Castle Estate, binding himself at the the auditor, with a thorough and comprehensive same time not to sell except according to the report by him covering the whole field, had giv- terms of the pool agreement. All these ar. en ample information to the plaintiff as to the rangements were concluded before the end of ground upon which he ought to be prepared to 1898. The plantation was only partially derely.

veloped. It was the design of the parties that [4] The allowance of five days to the plaintiff the plaintiff, whose reputation was that of a within which to elect whether to proceed on the highly successful manager of sugar estates, contract counts or on the tort counts, or fur- should develop this plantation to a much higher ther to amend, was not error. Of course he productivity and that thereby the stock of the might have elected also to rely on bis strict corporation would become greatly enhanced in rights and needed no permission to do that. value. The auditor's report tends to show that

[5] The circumstance that the tort counts, had the plaintiff entered upon the performance of his been added by amendment allowed by another duties as manager with vigor and skill and causjudge was not an adjudication upon the question ed important and extensive improvements to be of misjoinder of counts in contract and tort. made on the plantation by way of irrigation The only question passed upon in allowing the canals, railroads, the erection of new buildings amendment was whether the new counts were and the installation of new machinery, the for the cause of action for which the action was bringing of large additional areas of land under intended to be brought. R. L. c. 173, § 121; sugar cultivation, and otherwise. Considerable Herlihy v, Little, 200 Mass. 284, 86 N. E. 294. sums of money were expended for these purposWhether the declaration as amended is demur-es. The 5,000 shares which the plaintiff purrable is a different question. The decision of chased were carried by James B. Castle accorilthe superior court judge who allowed the amending to their agreement of September, 1898, in ment, although binding as to the point before the latter's name and were deposited with other him (Tracy v. Boston & Northern Street Rail-securities as collateral for a loan to him of way, 204 Mass. 13, 16, 17, 90 N. E. 416), was $500,000, which became payable in November, not conclusive as to the matter raised by the 1901. James B. Castle planned to have this demurrer.

loan divided at its maturity so that the plainThe case was tried to a jury on the counts in tiff would assume and carry on his own account deceit. The auditor's report in the plaintiff's without the aid of Castle the share represented favor on count seven of his declaration was in by so much of the purchase price of his stock evidence. The plaintiff testified at length and as was unpaid. This design was consummated there were depositions and other evidence. apparently without objection by the plaintiff

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