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(147 N.E.)

Hampden | tual transactions were left mainly to Leonard. The first connection of the Investment

Appeal from Superior Court, County; William Cushing Wait, Judge. Bill in equity by Charles R. Greco against Walter P. Hubbard and others, as trustees of a voluntary unincorporated association, to recover compensation alleged to be due him as architect of an office building in city of Springfield. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Francis M. Phelan, of Boston, for appel

lant.

Charles H. Beckwith, of Springfield, for appellees.

RUGG, C. J. The plaintiff seeks by this suit in equity to recover compensation due him as architect of a large office building in Springfield. The defendants are Hubbard and Bond as trustees of the Winthrop Club Associates, a voluntary unincorporated association, and Page, MacDonald, Leonard, and Hubbard, individually and as trustees of the Investment Associates, a voluntary unincorporated association. The ownership of each association was divided into fractional parts, represented by certificates, for convenience

called shares.

Associates with the Winthrop Club building was in May, 1916, when Radding approached the trustees for a loan of $60,000, representing that he needed it to use in the construction of the building. These trustees granted the loan. Check for that sum was made to the order of Radding, for which among other securities there was to be assigned

by Radding to the trustees a mortgage for $65,000 to be procured by Radding from the Winthrop Club Associates. It was understood by the trustees of the Investment Associates that this was to be a second mortgage, and Radding agreed with Leonard, who acted for them, to cause to be discharged an existing second mortgage said to be for $40,000 then outstanding and assigned to him. Pursuant to this arrangement a mortgage and note for $65,000 made by the Winthrop Club Associates to Radding were by him assigned to the Investment Associates as security for their note of $60,000 from Radding in return for the loan for that amount to him. The Investment Associates became holder in due course of the $65,000 note. The mortgage for $65,000 contained covenants against all incumbrances except the $250,000 mortgage. There was in fact a second mortgage upon the property of the Winthrop Club Associates for $40,000 to which the mortgage for $65,000 was a junior incumbrance and which Radding at the time and as a part of the consideration of the transaction agreed to discharge, it then being held by him as assignee under an unrecorded assignment. MacDonald and Page as trustees of the Investment Trust understood that the check for $60,000 was not to be delivered to Radding unless as security a second mortgage for $65,000 be delivered on the property of the Winthrop Club Associates. Through some neglect the $40,000 mortgage was not discharged. Leonard, who was the agent for his fellow trustees of the Investment Associates, learned early in August, 1916, that this mortgage had not been discharged, but the other trustees did not know it until January, 1917. This mortgage was not discharged and the mortgage for $65,000 was in truth the third mortgage on the Winthrop Club Associates' property. In August, 1916, Radding became involved in financial difficulties and about September 12, 1916, work on the building stopped. MacDonald and Page, learning of this, investigated the affairs of the Winthrop Club As

The history of this building and the relation of these parties to it, briefly narrated, is this: One Radding was the owner of the real estate in November, 1915, when he conveyed it to Ellis, Winter and Giles, as trustees of the Winthrop Club Associates. These three persons were trustees under a written declaration of trust, which constituted a strict trust, dated November 1, 1915, and was duly recorded. Radding was the owner of all the shares of the Winthrop Club Associates from November 29, 1915, to September 12, 1916. He was also the president and holder of substantially all the shares of stock of a corporation known as Edward Radding, Inc. In December, 1915, the trustees of the Winthrop Club Associates employed the plaintiff as architect to prepare plans and specifications and details for the construction of the office building on the premises. Edward Radding, Inc., commenced the construction of the building under contract with the trustees of the Winthrop Club Associates. Those trustees on November 28, 1915, executed a mortgage upon the property of the trust for $250,000, together with a construction agreement providing for payments as the construction of the building progressed. That mortgage has remained on the building and its validity is in no way in question. The defendants Page, MacDon-sociates. ald and Leonard were trustees of the Investment Associates under a declaration of trust dated October 2, 1915, and duly recorded. The Investment Associates was formed and conducted business mainly for the investment of funds belonging to Page, who held most of its shares. All three trustees were active in the business of the trust but its ac147 N.E.-18

At their request its trustees resigned and Bond and Hubbard were elected trustees in their stead. Thereafter, in September, October and November, 1916, the trustees of the Investment Associates entered into negotiations with Radding and Radding, Inc., as a result of which the contract between the corporation and the Winthrop Club Associates was rescinded in con

sideration of $30,000 paid to the corporation. The sum of $30,000 was advanced by the Investment Associates to the Winthrop Club Associates. Certificate for 1,000 shares in the Winthrop Club Associates was endorsed in blank by Radding and delivered to the Investment Associates. The $30,000 thus available to the Winthrop Club Associates was paid by checks in various amounts to Radding, Inc., except that taxes to the city of Springfield also were paid. Hubbard and Bond, the new trustees of the Winthrop Club Associates, requested the plaintiff to make survey of the building and an estimate of the cost of completing it, and this was done by him. Bond, who was an architect and engineer, acted under the direction of • MacDonald and Page. Up to January 11 or 12, 1917, when MacDonald and Page learned that the mortgage for $65,000 was a third instead of a second mortgage on the property of the Winthrop Club Associates, it had been the intention of the Investment Associates to lend to the Winthrop Club Associates the money necessary to complete the building. Upon obtaining that information that intention was abandoned. The second mortgage for $40,000 subsequently was foreclosed and left nothing to the Investment Associates on their $65,000 mortgage, and the shares in the Winthrop Club Associates became valueless. The various transactions between the Winthrop Club Associates and Radding and Radding, Inc., and the trustees or representatives of the Investment Associates, on which the plaintiff based allegations of fraud, have become immaterial on that issue because the master has expressly found that there was no fraud on the part of MacDonald and Page, that they acted in entire good faith throughout and have lent large sums of money in connection with the building, which have been lost.

Nothing in the record justifies or requires the inference that this trust was ever modified, abrogated or terminated. Its representatives alone made the contract with the plaintiff. His transactions from begininng to end were with them. Confessedly the Investment Associates had no relation, except that of creditors, to the Winthrop Club Associates until September 12, 1916. The Investment Associates on that day were mere ly creditors of the Winthrop Club Associates. At that time two of the trustees of the Investment Associates learned for the first time that Radding was in financial difficulties. The Investment Associates trustees had no power over the Winthrop Club Associates except that of creditors at that time. Two of the Investment Associates Trustees asked the trustees of the Winthrop Club Associates to resign, and they requested Bond and Hubbard to act as trustees. All the shares of Winthrop Club Associates trust were transferred to the Investment Associates trust, through arrangements made with Radding. The latter trust lent the Winthrop Club Associates trust $30,000, which sum the latter trust disbursed on its own checks. The fact that most of this money came back to the Investment trustees by Radding paying his debts has no tendency to show that the Winthrop Club Associates did not continue to be a genuine trust. As holder of all the shares of the Winthrop Club Associates, the Investment Associates had a right to name the trustees of the Winthrop Club Associates trust. These new trustees spent the time from September, 1916, to January, 1917, in looking over and investigating the property of the Winthrop Club Associates trust in order to determine how much it would cost to complete the building. It was in January, 1917, that the trustees of the Investment Associates first learned that LeonThe plaintiff, after the coming in of the ard had invested $65,000 of their money in master's report which was confirmed with- the Winthrop Club Associates trust on a out appeal, amended his bill so as to ask third mortgage instead of on a second mortthat his debt be established against Mac-gage as they had supposed. The second mortDonald, Page and Leonard; and he stated in gage was presently foreclosed and the Investopen court when the final decree was entered ment Associates have nothing of value to that he "sought no relief against the defend- show for a very large investment. ants Hubbard and Bond and waived all relief against them." He now seeks to maintain this suit on the ground that the defendants MacDonald, Page and Leonard are undisclosed principals of the Winthrop Club Associates.

[1, 2] Of course equity looks through form to the substance of transactions. The substance of these transactions on the facts found by the master was what it purported in form to be. Nobody now claims there was any bad faith. The finding of the masThe Winthrop Club Associates was or- ter is clear on that point. Neither the Inganized as a valid trust. Williams v. Milton, vestment Associates nor any of its trustees 215 Mass. 1, 102 N. E. 355; Dunbar v. Broom-organized the Winthrop Club Associates trust. field, 247 Mass. 372, 385, 142 N. E. 148. It was not a partnership. The terms of the trust instrument are unlike those in Frost v. Thompson, 219 Mass. 360, 106 N. E. 1009; Flint v. Codman, 247 Mass. 463, 469, 142 N. E. 256, and similar cases, where it has been held that a partnership was established.

They organized the Investment Associates as a valid and honest association to invest the money of Page. They lent some of that money to the Winthrop Club Associates trust. They honestly got all its shares, for which an additional large sum of money was paid. They can use the Winthrop Club Associates trust as a valid trust. They have never deceived

(147 N.E.)

the plaintiff. He made his contract with the Winthrop Club Associates trust long before the defendants had anything to do with it. He did nothing on the credit of the defendants. If the Winthrop Club Associates had been a corporation, no one would contend that the relation of the defendants to it by electing new officers after they became the stockholders would render them personally liable for its debts. Instead of being stockholders in a corporation, they are the cestuis que trust of a valid trust because they held all its shares. Every intendment of the law is toward the protection of cestuis que trust under a valid trust.

[3, 4] The ground on which it is urged that the plaintiff can recover is that these defendants were undisclosed principals of their As already agents, Bond and Hubbard. pointed out, Bond and Hubbard were trustees, and the defendants, cestuis que trust. The cestuis cannot be held liable as the principal of his trustee merely because he occasionally confers with his trustee about the affairs of the trust.

Decree affirmed with costs.

MARCINOWSKI v. SANDERS.

(Supreme Judicial Court of Massachusetts. Hampshire. April 16, 1925.)

Action of tort by Seth Marcinowski against Hannah H. Sanders, administratrix of estate of Richard Hibbard, deceased, to recover for personal injuries in automobile accident. Verdict for plaintiff, and defendant Exceptions sustained, and judgexcepts.

ment for defendant.

D. D. & E. L. O'Brien, of Northampton, for plaintiff.

Simpson, Clason & Callahan, of Springfield, for defendant.

CROSBY, J. This is an action to recover for personal injuries received by the plaintiff while riding in an automobile owned and operated by one Richard Hibbard. The action was originally brought against Hibbard, who died after the date of service of the writ and before trial. He will be referred to as the defendant.

There was evidence tending to show that on December 24, 1922, the dwelling house of one Barnish in the town of Hadley was on fire; that the plaintiff, with two other men, all neighbors of Barnish, was walking along the highway toward the place of the fire; that the defendant, who was operating an automobile in the same direction, stopped and invited the plaintiff and the two men to ride, and they accepted; that on the front seat with the defendant was one White; that the place where the plaintiff and the men with him boarded the automobile was about a

1. Negligence 221⁄2-Invitee can recover for quarter of a mile distant from the fire to gross negligence of automobile driver.

Where plaintiff was injured while riding in defendant's automobile as invitee, defendant would be liable if plaintiff was in exercise of due care and his injuries were result of defendant's gross negligence.

2. Negligence

136(26)—Negligence of one riding in automobile held for jury. Where plaintiff in going to fire in dwelling house was invited by defendant to ride in his automobile and was injured when automobile skidded into telephone pole, whether plaintiff, who made no protest as to manner of driving, was in exercise of due care, held for jury.

which they were going; that the highway was a rough country road, covered with snow "with ruts for one car, and the car was in were 'pretty straight,' these ruts, which curving a little from time to time"; that from the point where the men entered the automobile the road sloped down for a distance of about fifty feet and then ascended a very steep grade for about two hundred feet; that after picking the men up the automobile went down the grade "very fast," and while proceeding up the hill, traveling between thirty-five and forty miles an hour, it "swayed to the left and the left part of the machine," struck a telephone pole, throwing the plaintiff out of the car and causing the injuries complained of; that the automobile continued some distance after striking the Where plaintiff while hurrying towards pole and stopped; that the total distance neighbor's dwelling house, which was burning, covered while the plaintiff was riding was was invited by defendant to ride in his auto- about one hundred and fifty yards; that the mobile and was injured when automobile sway- defendant continuously sounded the horn; ed from road, struck telephone pole, and threw plaintiff out, evidence held not to warrant find- that the plaintiff did not make any protest as ing of "gross negligence," which is negligence to the speed at which the defendant was of greater culpability than lack of due care re-proceeding; and that there was no other specting rights of others.

3. Negligence 134(4)-Evidence held not to warrant finding of "gross negligence" of automobile driver.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gross Negligence.]

traffic on the road at that time.

[1] The evidence warranted a finding that the plaintiff was invited by the defendant to ride in his automobile. If the jury so found, the defendant would be liable to the plainExceptions from Superior Court, Hamp- tiff if the latter was in the exercise of due care and his injuries were the result of gross shire County; W. A. Burns, Judge.

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

negligence on the part of the defendant., the car was not of itself evidence of negliMassaletti v. Fitzroy, 228 Mass. 487, 118 N. gence. Kelleher v. Newburyport, 227 Mass. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088; Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896; Barry v. Harding, 244 Mass. 588, 139 N. E. 298; O'Leary v. Fash, 245 Mass. 123, 140 N. E. 282.

[2] The question is, whether upon the evidence most favorable to the plaintiff the jury were warranted in finding that the operation of the automobile under the circumstances was so blameworthy as to constitute gross negligence.

The testimony of the witness Morrissey, that the defendant said on the day following the accident that at that time, "Well we were going like Hell," was not a description of a fact; it did not tend to show the rate of speed; it was of no more significance than if the defendant had said that they were travelling rapidly or very fast. It had no tendency to show how fast they were going or that the speed was excessive or unreasonable.

Mrs. Marcinowski testified that ten or fifteen minutes after the accident the defendant was in her house; "that his eyes looked wild; that he was unsteady on his feet and acted like a man who had been drinking." This witness did not testify that there was an odor of liquor or that the defendant was intoxicated, nor did any other witness so testify. If it could have been found that he was under the influence of liquor at the time of the accident, the question remains whether upon all the evidence his operation of the automobile constituted gross negligence.

The accident happened in a country town where in case of fire those living in the vicinity would hasten to it to assist in extinguishing it. At the time of the accident the defendant and those who rode with him were neighbors of the owner of the house, and were hurrying to the scene of the fire to render assistance; to accomplish that purpose, it was important that they should reach the house without unnecessary delay. The defendant was justified in operating his automobile at as high a rate of speed as was consistent with the safety of the public, including those who were riding with him. Manifestly the defendant was not justified, in endeavoring to reach the fire quickly, to operate his car in a grossly negligent manner or even negligently, yet the errand on which he was bound is a circumstance proper to be considered in determining his conduct. The evidence that he was operating his machine at the rate of thirty-five to forty miles an hour, over a rough road, that the car "jumped out of the ruts" and that in attempting to get it back it skidded and struck the pole eight or

ten feet from the nearest wheel rut, would have warranted a finding of ordinary negligence, although it would not have been conclusive of such negligence. The skidding of

462, 116 N. E. 806, L. R. A. 1917F, 710; Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 134 N. E. 340. Whether the plaintiff was in the exercise of due care was for the jury.

[3] The question remains whether there was sufficient evidence to justify a finding of gross negligence. It is unnecessary to define again in detail the meaning of that term, as it has been explained and discussed in many of our decisions. Massaletti v. Fitzroy, supra; O'Leary v. Fash, supra; Altman V. Aronson, 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185. It is sufficient to say that gross negligence is a degree of negligence much greater than ordinary negligence. It is negligence of greater culpability than lack of dve care respecting the rights of others. The evidence in the case at bar, viewed in the light most favorable to the plaintiff, fails to show that degree of negligence necessary to establish liability. The present case cannot be distinguished in principle from the recent case of Burke v. Cook, 246 Mass. 518, 141 N. E. 585, and is governed by it. The entry must be

Exceptions sustained.

Judgment for defendant, under G. L. c. 231, § 122.

BEEMER v. STATE. (No. 24564.) (Supreme Court of Indiana. April 7, 1925.; 1. Intoxicating liquors 143-Refusal to in struct that mere finding of liquor would not of itself render room a common nuisance held error.

In prosecution for maintaining a common nuisance, in violation of Prohibition Law (Burns' Ann. St. Supp. 1921, § 8356t), refusa) of requested instruction that mere finding of liquor in a room would not of itself render such room a common nuisance held error. 2. Criminal law 784 (7)-Refusal to instruct as to test of sufficiency of circumstantial evidence held error.

Where evidence relied on for conviction was circumstantial, refusal of requested instruetion that test of sufficiency of circumstantial evidence was whether circumstances established by evidence were so conclusive as to exclude every reasonable hypothesis of defendant's innocence held error.

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

(147 N.E.)

EWBANK, J. Appellant was convicted | box at the end of the counter farthest from of violating section 20 of the Prohibition the street door, and two small glasses "that Law (chapter 4, Acts 1917, p. 25; section had whisky in them" on a bench near by, 8356t, Burns' Supp. 1921). The affidavit being such glasses as a witness testified charged that on May 14, 1923, at Delaware whisky used to be sold in; that the officers county, state of Indiana, he did then and also found a pint bottle of "white whisky" there unlawfully maintain and assist in which was intoxicating, in a bureau drawer maintaining a common nuisance, to wit, a in appellant's bedroom adjoining a small room and place where intoxicating liquors room containing tables and chairs that openwere then and there sold, bartered, given ed into the restaurant, that they also found away, manufactured, and delivered in viola- back there a large number of bottles (intion of the laws of the state, and where per- cluding one barrelful), many glass jugs and sons were then and there permitted to re- quite a number of half-gallon fruit jars, sort for the purpose of drinking said in- many, if not all, of which had contained toxicating liquors as a beverage, and that white whisky; that a man with whisky was he then and there kept intoxicating liquors arrested at the back door of this place. And in and used the same in maintaining said a number of witnesses testified, without room and place. Appellant filed a motion to objection, that appellant's place had the repquash the affidavit for the alleged reason utation of being one where intoxicating liqthat the facts stated therein do not constitute uor was sold. There was no direct evidence a public offense, and assigns as error the ac- of any violations of the law in appellant's tion of the trial court in overruling this mo- restaurant, the state relying on the circumtion, saying that the statute above cited is stances proved. unconstitutional, by reason of the title being defective. This court has decided that question adversely to appellant's contention. James v. State, 188 Ind. 579, 582, 125 N. E. 211; Schmitt v. F. W. Cook Brewing Co., 187 Ind. 623, 634, 120 N. E. 19, 3 A. L. R. 270; Alyea v. State (No. 24453 at this term)

147 N. E. 144.

[1] Appellant asked an instruction to the effect that the burden was upon the state to prove the facts alleged in the affidavit, and "that the mere finding of intoxicating liquors in a room or place, would not of itself render such room or place a common nuisance." The court refused to give this instruction, and did not give any embracing that part which is in quotation marks. This The instruction correctly declar

was error.

an instruction should have been given, as requested. Robinson v. State, 188 Ind. 467, 471, 124 N. E. 489.

No other reason for holding the affidavit insufficient is suggested by counsel, and we perceive none. The court did not err in over-ed the law on a point as to which appellant was entitled to have the jury advised. ruling the motion to quash. Appellant filed a motion for a new trial, specifying as rea- which the court refused to give, to the ef[2] Appellant also asked an instruction, sons that the trial court erred in giving cer- fect that the true test of the sufficiency of tain instructions and in refusing to give cer- circumstantial evidence to prove the defendtain others that were asked, and that the ant guilty is whether the circumstances esverdict is not sustained by sufficient evidence tablished by the evidence are of so concluand is contrary to law. The evidence which sive a character and point so unerringly to tended most strongly to sustain the verdict the guilt of the accused as to exclude every was as follows: That appellant was operat-reasonable hypothesis of his innocence. Such ing and for some years had kept and operated a small restaurant and lunch stand in a room which formerly was used as a saloon, where intoxicating liquor had been sold under a license before the prohibition law was enacted; that he had taken away the brass foot rail from outside the bar, and had provided stools on which his customers sat while eating food served to them on the "bar," or counter; that he sold soup, chile, and other food, and soft drinks there; that the counter was in a room with a glass front that opened off the street, and there was a back room in which the soup was made, and a door opened into the rooms in which his family lived; that seven policemen, with a search warrant, found a pint bottle half full of "white mule whisky" in the bread

Appellant also complains of the giving of certain instructions, but his brief is not so prepared as to present any questions for consideration in relation thereto. Since the cause must be tried again, it is not deemed advisable to express an opinion as to the sufficiency of the evidence. But see Shacklett v. State (Ind. Sup.) 145 N. E. 554, and Brown v. State (No. 24,648, at this term) 147 N. E. 136, as to the probative value of the reputation of a place kept by the accused. For error in refusing to give the instructions asked, the judgment must be reversed.

The judgment is reversed, with directions to sustain appellant's motion for a new trial.

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