ùndecided and unadopted at the execution of, missions of the facts therein stated in connecthe agreement, but states, as his position, that: It was entirely possible for the defendants to have said to the plaintiff, as he says in illustration of his position: "Mr. Woods, you have fulfilled your duty; you need not serve us longer. We accept Mr. Hurlburt as a person procured by you, able, ready and willing to become our tenant and to enter into such a lease as we see fit to draw." The reported facts do not warrant a finding of fact that the defendants accepted Hurlburt as a tenant, or that Hurlburt ever was able, ready and willing to become a tenant of the defendants under such a lease as the defendants might see fit to draw. To say that Hurlburt was ready and willing to become a tenant upon such terms as the defendants might draw, is to contradict the written "memorandum of agreement" and is to say that Hurlburt was without real voice in the apparent negotiations as to the terms of the proposed lease, that followed the execution of the "memorandum of agreement" to the time when Hurlburt refused longer to treat with the defendants. In relation to the continuance of the negotiations between the defendants and Hurlburt, the bill of exceptions states: "The plaintiff contended that no negotiations between the defendants and Hurlburt after October 26 were legally material or competent, and objected to the introduction of any evidence tending to show that such negotiations occurred after October 26. The court having overruled these objections of the plaintiff, the plaintiff did not dispute that certain negotiations between the defendants and Hurlburt continued until November 12, when they were broken off by Hurlburt." It would seem to be clear that readiness, willingness and ability to become a tenant upon the defendants' terms in the absence of an express understanding otherwise, presupposes and implies that the terms which are to govern the rights of the parties are or are to be defined, and that so long as such terms are under discussion there can be in the nature of things, neither a readiness nor willingness to become a tenant on the defendants' terms, or an acceptance of such a person as a tenant. Fitzpatrick v. Gilson, 176 Mass. 477, 57 N. E. 1000; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345; Cohen v. Ames, 205 Mass. 186, 91 N. E. 212; Goodnough v. Kinney, 205 Mass. 203, 91 N. E. 295; Clark v. Bonner, 217 Mass. 201, 104 N. E. 494. Moreover, if the "memorandum of agreement" be considered neither as a final nor preliminary contract, but is to be taken as a memorandum merely, that is to say, as ad tion with all the other evidence favorable to the plaintiff's contention, the entire evidence falls short and does not warrant a jury in finding that Hurlburt was able, ready and willing to become a tenant on the terms of the defendants, or that the defendants were in the position of having accepted him as such. Upon this issue a verdict should have been directed for the defendants. It is unnecessary to consider the remaining exceptions taken to the admission or rejection of testimony, as well as to the rulings and refusals to rule of the presiding judge. Exceptions are sustained and judgment is to be entered for the defendants under St. 1909, c. 236. (224 Mass. 438) ANDERS v. ANDERS. (Supreme Judicial Court of Massachusetts. Hampden. June 21, 1916.) MARRIAGE 58(7)-ANNULMENT-FRAUD. right to bear the name of a married woman, with Where a woman marries solely to secure the the affirmative intention to leave her husband at the church door and never see him again, and does so leave him, the marriage, on his libel, may be annulled for fraud. Cent. Dig. § 122; Dec. Dig. 58(7).] [Ed. Note. For other cases, see Marriage, Report from Superior Court, Hampden County; Wm. F. Dana, Judge. Libel by William Anders against Elsie Anders to annul marriage for fraud and false representations. Case reported. The court found that "at no time did the respondent intend to comply with her marriage contract, * that her only ob ject in getting married was so that she could go back to Europe to her mother's with a marriage name and a marriage standing on account of her child and herself, or to satisfy the authorities," and that shortly after the ceremony the respondent made an errand an excuse and left libelant and he did not see her again, but weeks later received a letter from her in Europe, stating she would never see him again. Respondent's illegitimate child was born before she met libelant. P. H. Sheehan, of Holyoke, for plaintiff. LORING, J. It was decided in Dickinson v. Dickinson, [1913] P. 198, that willful and persistent refusal on the part of the wife to allow any marital intercourse was ground for a decree of nullity of the marrige at the suit of the husband. The earlier cases in England had proceeded upon the ground that in such a case incapacity in fact on the part of the wife must be made out to enable the husband to get such a decree. But upon great consideration it was held in that case that the objects for which matrimony exists are as much defeated in case the wife willfully persists in refusing to have marital intercourse when she can as they are in a case where she is willing but for some reason cannot. 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. §§ 1217, 1225; Dec. Dig. 77(1)-PRESUMPTIONS-FAIL URE TO CALL WITNESS. Where plaintiff introduces no evidence to sustain his claim, the failure of defendant to call not warrant an inference unfavorable to him. a witness, even though present in court, does [Ed. Note.-For other cases, see Master and ground for a decree of nullity. SV.302(1).] S- -, 192 Mass. 194, 77 N. E. 1025, 116 Am. 2. EVIDENCE St. Rep. 240. That was a case of partial malformation in both the husband and wife which resulted in incapacity in case of those two. There is an earlier case in this commonwealth in which it was held that utter denial of marital intercourse was not ground for a decree of nullity. See Cowles v. Cowles, 112 Mass. 298. In that case no consummation of the marriage had ever taken place. The whole contention was disposed of in that case in less than three lines and in these words: "It plainly does not go to the original validity of the marriage, and affords no ground for declaring the nullity of it." Interpreting the terms of that opinion in the light of the petitioner's brief, it is pretty plain that in deciding Cowles v. Cowles this court did not have in mind the case of a woman going through the marriage ceremony with a preconceived intention never to allow marital intercourse. But, however that may be, the facts in the case at bar go far beyond those in Cowles v. Cowles. In the case at bar the respondent went through the marriage ceremony with an intention never to perform any one of the duties of a wife. She went through the ceremony solely to secure a right to bear the name of a married woman and in that way to hide the shame of having had an illegitimate child, intending to leave her husband at the church door and not see him again. That plan she carried into effect. It is settled that a contract for the sale of goods is induced by fraud and for that reason voidable where the purchaser had an intention when the contract was made not to perform his promise to pay for them. If an intention not to perform his promise renders a contract for purchase of property voidable, a fortiori the same result must follow in case of a contract to enter into "the holy estate of matrimony." See generally in this connection Barnes v. Wyethe, 28 Vt. 41. Cases where a defendant in a bastardy complaint goes through the form of marriage with the woman in question to secure his discharge intending never to live with her, may well involve other considerations. See in this connection 1 Bishop, M. D. & S. § 476, and cases cited. We are of opinion that upon the facts set forth in the report the petitioner is entitled to a decree. So ordered. (224 Mass. 435) POIRIER v. TERCEIRO. (Supreme Judicial Court of Massachusetts. Bristol. June 21, 1916.) 1. Master and SeRVANT ~302(1)—INJURIES TO THIRD PERSONS. Where plaintiff was injured by defendant's minor son, who was not at the time acting with [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. 77(1).] Exceptions from Superior Court, Bristol County; John D. McLaughlin, Judge. Action for tort for personal injuries by Ralph Poirier against Manuel R. Terceiro. Verdict for plaintiff, and defendant excepted. Exceptions sustained. Baker & Thurston and Benj. Cook, Jr., all of Fall River, for plaintiff. Frank M. Silvia and E. T. Murphy, both of Fall River, for defendant. CARROLL, J. The bill of exceptions states that Osborne street, in the city of Fall River, had been duly licensed for coasting. The plaintiff, while on a sled on this street, was injured by a horse owned by the defendant and ridden by his minor son. The only question presented is: Was the minor son of the defendant, his servant, and acting within the Scope of his employment? [1] The defendant denied any knowledge of the use of the horse by the boy, or any permission to use it. This evidence was not contradicted. There was nothing to show for what purpose the boy was riding the horse, and even if it could be argued that on this day the horse needed sharpening, that the defendant's blacksmith was Shea, whose shop was on Eleventh street, and that the defendant's son was either going to or returning therefrom, there is no evidence to show that this was done with the knowledge or consent of the defendant. The plaintiff's father testified he had seen the defendant's son several times driving this horse attached to a grocery wagon; but there was nothing to show that the boy was acting as the servant or agent of the defendant at the time of the plaintiff's injury. Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764; Fletcher v. Willis, 180 Mass. 243, 62 N. E. 2. As, on the evidence presented, the boy could not be found to have been in the employ of the defendant at the time of the plaintiff's injury, it becomes unnecessary to decide whether in going to or returning from the blacksmith shop he was called upon to pass over Osborne street, and so had departed from the scope of his employment, even if he were then the defendant's servant. [2] There being no evidence of the employment by the defendant of his minor son, no inference could be drawn against him from his failure to call him as a witness. In Tully v. Fitchburg R. R., 134 Mass. 499, 502, the plaintiff was struck at a crossing by one of the defendant's engines. The engineer and fireman in charge of the engine, were in court at the time of the trial, and were not called by the defendant. It was urged that from this fact an unfavorable inference might be drawn. Colburn, J., said: "This would have been so, had the plaintiff introduced evidence tending to sustain her claim: 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 allegations, and asking the jury to consider them proved because, if they were not true, the defendant had the means of showing it. These witnesses might have been called by either side." See, also, Backus v. Spaulding, 129 Mass. 234, 235; McKim v. Foley, 170 Mass. 426, 428, 49 N. E. 625; Buckley v. Boston Elev. Ry., 215 Mass. 50, 56, 102 N. E. 75. Exceptions sustained. 2. TRIAL 278-INSTRUCTIONS-EXCEPTIONS. Court may properly disallow an exception to his refusal to give a large number of instructions as requested and require every error or omission to cover requested instructions, to be specifically pointed out. [Ed. Note.-For other cases, see Trial, Cent. Dig. $ 686, 689; Dec. Dig. 278.] 3. TRIAL 277-INSTRUCTIONS-EXCEPTIONS. Upon refusal of the court to give instructions as requested and denial of an exception thereto, counsel was afforded an opportunity to point out any errors or omissions in the general charge, and after re-examining his requests announced, "I am content." Held, he saved no exception to refusal of his requests. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 687, 688; Dec. Dig. 277.] 4. APPEAL AND ERROR 248-EXCEPTIONS-NECESSITY. The allowance of a bill of exceptions cannot preserve exceptions that were never saved. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1432; Dec. Dig. 248.] 5. NEW TRIAL 104 (2)-NEWLY DISCOVERED EVI DENCE-CUMULATIVE EVIDENCE. A new trial will not be granted where affidavits of newly discovered evidence state substantially only what defendant and his witnesses testified that affiants told them; such evidence being merely cumulative. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 219; Dec. Dig. 104(2).] 6. NEW TRIAL 97-ABSENT WITNESSES. A party unable to obtain the attendance of witnesses and knowing the nature of their testimony may protect his rights by motion and affidavit under rule 30 of the 1906 Common-Law Rules of the Superior Court. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. 97.] 7. NEW TRIAL 6-DISCRETION OF COURT. The granting of a motion for a new trial ordinarily rests in the sound discretion of the court, and is not subject to exception. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 9, 10; Dec. Dig. 6.] Exceptions from Superior Court, Middlesex County; Lloyd E. White, Judge. Action by Ralph M. Herrick against Albert H. Waitt. From a judgment for plaintiff from an order denying a new trial, defendant brings exceptions. Exceptions overruled. John F. Ryan, of Boston, for plaintiff. Chester W. Ford and E. Irving Smith, both of Boston, for defendant. RUGG, C. J. At the conclusion of the evidence the defendant presented thirty-seven requests for instructions. The judge stated that he should not read them to the jury, but should deliver his charge and thereafter counsel might, if they desired, call his attention to any instruc tions which they thought had not been given in substance. [1] This was correct practice. While of course a judge may read the requests to the jury with such comment as may be necessary it is better and more effective to give a comin order to state the law correctly, ordinarily prehensive charge stating plainly and forcibly the law pertinent to the issues raised. The purpose of a charge is to enable the jury to understand their duty clearly and to be enlightened as to the principles of law by which their action must be controlled. It should be adapted as a whole to the presentation of those principles in words easily understood by the man of ordinary intelligence. This end usually can be accomplished more effectively by the judge formulating a complete and unified statement either wholly in his own words or partly by quotation from decided cases, with such reference to the evidence as may be wise to render it practical as a guide to a just verdict, rather pared as requests for instructions by counsel than by reading the detached expressions preon one side or the other and liable to be colored by the necessary bias under which they are framed. Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502, 84 N. E. 95; Maxwell v. Mass. Title Ins. Co., 206 Mass. 197, 200, 92 N. E. 42; Commonwealth v. Dow, 217 Mass. 473, 483, 105 N. E. 995. [2, 3] In the case at bar counsel for the defendant properly made no objection to this procedure. At the close of the charge he referred again to his requests and excepted to all of them not given in the charge. The judge refused to allow an exception in that form, saying that he was entitled to have his attention called to anything which counsel claimed he had not given, adding, "Now, take your own time about this." Thereupon the jury were seated and counsel went through his requests for rulings and after doing so, said, "I am content." [4] This was not the taking of an exception. The colloquy means that, acting well within tion first stated. He might require any error his right, the judge refused to allow the excepin the charge or failure to cover every request to be pointed out to him so that it might be corrected. Commonwealth v. Costley, 118 Mass. 1, 22; Henderson v. Raymond Syndicate, 183 Mass. 443, 446, 67 N. E. 427. Counsel acceding to the soundness of this position, after examining his requests anew, gave the judge to understand that he was satisfied with the manner in which the requests had been dealt with. That is the only reasonable interpretation of which the words "I am content" are susceptible under all the circumstances. It follows that no exception was saved. Therefore, that bill of exceptions ought to have been disallowed. The allowance of the bill of exceptions by the judge cannot put life into exceptions which never existed. He could not affect the rights of the opposite party in this way. It may not be amiss to add that an examination of the record does not disclose any error prejudicial to the substantial rights of the defendant. [5, 6] Several months after a verdict was rendered in favor of the plaintiff, the defendant filed a motion for a new trial on the ground of newly discovered evidence. To this motion were attached the affidavits of two persons who did not testify at the trial, disclosing material evidence which each would give if called to the witness stand. But it appears from the exceptions that these "affidavits *state substantially only what the defendant and his witnesses testified these deponents told them." It is apparent from this fact that the evidence was not "newly discovered" and the judge so ruled correctly. It was known to the defendant at the time of the trial and in substance presented to the jury. The testimony of the affiants would have been only cumulative. Perhaps it would have been more advantageous to * [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 55-57; Dec. Dig. 20.] 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 to him and to his other witnesses, he could have protected his rights by motion and affidavit under rule 30 of the 1906 Common-Law Rules of the Superior Court. [7] The granting of a motion for a new trial ordinarily rests in sound judicial discretion and is not subject to exception. There is nothing in this record to show abuse of discretion. Powers v. Bergman, 210 Mass. 346, 96 N. E. 674; Commonwealth v. Borasky, 214 Mass. 313, 322, 101 N. E. 377. There was no error of law in the denial of the requests for rulings under these circumstances. All exceptions overruled. (225 Mass. 37) LOWRIE v. CASTLE et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1916.) 1. APPEAL AND ERROR 959 (1)—PLEADING 236(1)-DECLARATION-AMENDMENTS. The allowance of successive amendments is within the discretion of the court and will not be reviewed unless there has been an abuse of such discretion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3826; Dec. Dig. 959 (1); Pleading, Cent. Dig. § 601; Dec. Dig. 236(1).] 2. PLEADING 199-DEMURRER-FILING. Under Superior Court Common-Law Rules 5 and 10 of 1906, the court has discretion to allow a demurrer for misjoinder of causes to be filed to a count after successive amendments have restored such count to the pleading, although no demurrer was taken when such count first appeared in the pleadings. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 464-469; Dec. Dig. 199.] 3. ACTION 47-JOINDER-CONTRACT AND TORT. Under Rev. Laws, c. 173, § 6, cl. 6, prohibiting joinder of actions in contract and tort, an action for breach of contract of employment cannot be joined with a count for deceit in inducing plaintiff to resign his employment. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec Dig. 47.] 4. CONTINUANCE 11- IMPROPER CAUSES-TIME TO ELECT. In a bill which improperly joined counts of contract and tort, the allowance of time in which to amend or elect was discretionary with the court. [Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 19-24; Dec. Dig. 11.] 10. DAMAGES 20-DECEIT MEASURE. Where plaintiff sold his stock in a corporation of which he was an employé after being induced by deceit to resign, and after having obtained more lucrative employment, he was not entitled to damages by reason of profits he would have realized had he not sold such stock, since evidence showed him to have been in better financial shape to hold stock than before deceit and the sale not necessitated by loss of employment. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 55-57; Dec. Dig. 20.] 11. DAMAGES COVERY. 40(1)-PROSPECTIVE PROFITS-RE 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 with mathematical exactness. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 72, 73, 87; Dec. Dig. 40(1).] 12. DAMAGES MOTENESS. 40(1)-PROSPECTIVE PROFITS-RE Prospective profits cannot be recovered when remote, speculative, and not within the realm of reasonable certainty, and the nature of the business must be such as to support an inference of definite profits grounded on a reasonably sure basis of facts. Report from Superior Court, Suffolk County; Action by William J. Lowrie against James B. Defendant's exceptions overruled, and judgment Castle. Verdict for plaintiff, and case reported. ordered for plaintiff on the verdict. Jas. E. Cotter, of Boston, R. D. Silliman, of New York City, and Jas. W. McDonald and Jos. P. Fagan, both of Boston, for plaintiff. Alfd. Hemenway, Sherman L. Whipple, Wm. R. Sears, and Edwin H. Abbot, Jr., all of Boston (Whipple, Sears & Ogden, of Boston, and David L. Withington, of Honolulu, Hawaii, of counsel), for defendant. RUGG, C. J. [1] There were three counts in the declaration as originally filed, all in contract. The writ stated the cause of action to be in contract. Subsequently the plaintiff was alOF lowed to amend by substituting a new third count and by adding a fourth count (later eliminated by the sustaining of a demurrer thereto without exception or appeal), and a fifth count in contract, and by inserting in the writ after the words "in an action of contract," the words "or tort, all counts being for one and the same cause of action." Still later counts sixth and seventh in tort for fraud and deceit were added against the objection of the defendants. The case then was sent to an auditor, before whom protracted hearings were had, who found that the plaintiff failed to establish any of the counts in contract and that the conversations re 5. PLEADING 252 (1)—ALLOWANCE OF AMENDMENT -EFFECT. Under Rev. Laws, c. 173, § 121, the allowance of an amendment adding tort counts to a declaration is not an adjudication that the new counts are not a misjoinder. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 736, 737, 738-743; Dec. Dig. 252(1).] 6. DAMAGES 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 his wrong. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 260-264; Dec. Dig. 103.] 7. DAMAGES 20 LIABILITY OF TORT-FEASOR — PROXIMATE RESULT OF TORT. A tort-feasor is liable only for damages proximately resulting from the tort, not for those following some other efficient cause. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 55-57; Dec. Dig. 20.] 8. DAMAGES 62(1)-REDUCTION OF Loss. One who suffers a tortious wrong cannot remain supine when in a position to act for his own relief and claim as damages the consequences of his in action. [Ed. Note. For other cases, see Damages, Cent. Dig. § 119; Dec. Dig. 62(1).] 9. DAMAGES 20-TORTS-MEASURE. A tort-feasor may be held responsible for such damages as may be reasonably supposed to have of the minds and were preliminary to a contract in writing set forth in the report. After the auditor's report came in the plaintiff moved to amend in several particulars his seventh count, upon which the auditor's findings in the plaintiff's favor were based, a part of which was denied and the rest allowed, with leave to the defendants to demur or answer within a specified time. Later the plaintiff on motion was permitted further to amend count seven by striking out so much as had been added by the last amendment so far as it had been allowed. This was all within the court's discretion, which does not appear to have been abused and which cannot be revised. Barlow v. Nelson, 157 Mass. 395, 32 N. E. 359; First National Bank of Chelsea v. Hall, 170 Mass. 526, 49 N. E. 917; Fay v. Boston & Worcester St. Ry., 196 Mass. 329, 36, 82 N. E. 7. [2] The defendants then, but within the time For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes limited by the court, filed a demurrer, the only present material part of which was directed to an alleged misjoinder of count seven with the counts in contract. The demurrer was allowed to be filed and was considered. This was within the discretion of the court. Each change in the count was brought about by an amendment and the defendant could plead thereto. Even though the original form of count seven was restored by the final amendment, it was within the power of the Court to permit the filing of a demurrer, on the ground that there was a misjoinder of counts, when count seven was added. Superior Court Common-Law Rules 5 and 10 of 1906; Whitney v. Hunt-Spiller Mfg. Co., 218 Mass. 318, 105 N. E. 1054. Although it is unusual to permit a demurrer to be filed under the circumstances here disclosed, it cannot be said to have been unwarranted. There had been a long trial before an experienced and able auditor, whose findings against the plaintiff on the counts in contract bore strong inherent evidence of being sound. If counts were misjoined in law, the discretion of the Court in allowing a demurrer to this point was not abused. The pertinent facts on the merits may be summarized as follows: James B. Castle, on September 2, 1898, made an agreement to purchase 51,000 shares of stock, which was a controlling interest, in the Hawaiian Commercial & Sugar Company, a corporation owning the largest sugar plantation in the Hawaiian Islands. A few days later, at his solicitation, the plaintiff gave to him an option on his services as manager of this plantation at an annual salary of $12,000. This option was in the form of a proposition addressed by James B. Castle to the plaintiff and by him accepted. One paragraph was in these terms: "Second. You to have the privilege of buying of the S. N. Castle Estate or of myself, at any time within three years from October 1, 1898, five thousand shares of H. C. & S. stock at cost, to include interest at 6 per cent. per annum, it being understood that, in case of such purchase; you will dispose of other securities to pay for these as rapidly as you may be able to do so upon terms perfectly satisfactory to yourself." James B. Castle carried out the agreement 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 aren 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 the plaintiff, whose reputation was that of a highly successful manager of sugar estates, should develop this plantation to a much higher productivity and that thereby the stock of the corporation would become greatly enhanced in value. The auditor's report tends to show that the plaintiff entered upon the performance of his duties as manager with vigor and skill and caused important and extensive improvements to be made on the plantation by way of irrigation canals, railroads, the erection of new buildings and the installation of new machinery, the bringing of large additional areas of land under sugar cultivation, and otherwise. Considerable sums of money were expended for these purpos es. The 5,000 shares which the plaintiff purchased were carried by James B. Castle according to their agreement of September, 1898, in the latter's name and were deposited with other securities as collateral for a loan to him of $500,000, which became payable in November, 1901. James B. Castle planned to have this loan divided at its maturity so that the plaintiff would assume and carry on his own account without the aid of Castle the share represented by so much of the purchase price of his stock as was unpaid. This design was consummated [4] The allowance of five days to the plaintiff within which to elect whether to proceed on the contract counts or on the tort counts, or further to amend, was not error. Of course he might have elected also to rely on his strict rights and needed no permission to do that. [5] The circumstance that the tort counts, had been added by amendment allowed by another judge was not an adjudication upon the question of misjoinder of counts in contract and tort. The only question passed upon in allowing the amendment was whether the new counts were for the cause of action for which the action was intended to be brought. R. L. c. 173, § 121; Herlihy v. Little, 200 Mass. 284, 86 N. E. 294. Whether the declaration as amended is demurrable is a different question. The decision of the superior court judge who allowed the amendment, although binding as to the point before him (Tracy v. Boston & Northern Street Railway, 204 Mass. 13, 16, 17, 90 N. E. 416), was not conclusive as to the matter raised by the demurrer. The case was tried to a jury on the counts in deceit. The auditor's report in the plaintiff's favor on count seven of his declaration was in evidence. The plaintiff testified at length and |