(147 N.E.) being notified of sales. The plaintiffs were obliged to procure the certificates from the trust company upon payment to it of the sales price, and take them in 50 or 100 share lots. The defendant was entitled to insist on payment to the trust company directly after the sales were made, as a condition precedent to the delivery of the certificates by the company. That such was their construction of the letter of January 22 is obvious from their letter to the defendant dated January 24, and from their letter of the same date to the trust company. the stock was in 50 or 100 share lots was strictly true. The closing of the transfer books of the corporation from January 24 to February 25 did not prevent a delivery of the stock to purchasers until after February 25, as it is agreed it was the practice of the transfer agent, and of the registrar of the stock, to split certificates, and reissue them in the same name, even while the books were closed. If the plaintiffs as brokers were not aware of this practice, they could have ascertained it by the exercise of reasonable and proper diligence. Greenfield If the plaintiffs desired to protect them- Savings Bank v. Simons, 133 Mass. 415, 416. selves from liability to their customers in It is agreed that, when the transfer books carrying out their agreement with the de- of a corporation are closed, the delivery by fendant, they could readily have done so by a seller to a buyer of a certificate duly inmaking sales on condition that the purchas- dorsed for the exact number of shares sold ers should advance the purchase price to take or accompanied by power of attorney is a up the certificates and await delivery until good delivery. Therefore the plaintiffs the certificates were split and transferred, could have taken up the two remaining cerif that were necessary; or the plaintiffs tificates of 100 shares each, presented them could have advanced the money to the trust to the transfer agent and had them split company. The original contract of January into certificates for the required amounts, 22 was never changed or modified in any re- in the plaintiffs' name, and delivered them spect and the plaintiffs remained bound by duly indorsed or with power of attorney. its terms. Tobin v. Larkin, 183 Mass. 389, The agreed facts show that the defendant 67 N. E. 340; Trevas & Schack, Inc., v. was ready and willing to give any powers of Napel Mills Co., 241 Mass. 452, 135 N. E. attorney, or make any indorsements request477. If they did not know the amount of ed of him. The responsibility for splitting shares represented by each certificate, they the certificates into the amounts sold to cuscould easily have learned that fact by in-tomers rested upon the brokers and not upon quiry of the trust company. the defendants. The plaintiffs having notified the defendant, by letters dated January 24 and 25, that they had sold the 500 shares, and having telegraphed the trust company, under date of January 27, of their intention to take them up, it was then their duty forthwith to account for all such sales. The agreed facts show that the plaintiffs refused to carry out the terms of the agreement. As the breach was serious and affected the substantial rights of the defendant, he was justified in rescinding the contract so far as it related to the 200 shares. National Machine & Tool Co. v. Standard Shoe Machinery Co., 181 Mass. 275, 63 N. E. 900; Dudley v. Wye, 230 Mass. 350, 119 N. E. 790. [3] The plaintiff's refusal after demand made by the defendant on February 2, to take up and pay for the 200 shares, sold on January 24 and 25, until after February 25 when the transfer books should be opened, was a breach of the plaintiffs' agreement and justified the defendant in rescinding the contract as to the 200 shares. The contention of the plaintiffs that they were excused from delivery and payment for the stock until after February 25 because they did not know when the books could close cannot be sustained; that was a matter which, in the exercise of reasonable prudence and diligence they could have ascertained from the agents to whom they would be required to present the certificates for transfer when the stock 'was sold, and did not justify them in violating their contract with the defendant. If they were mistaken as to the date when the books closed, that was not the fault of the defendant. They were not excused from carrying out their agreement, which was absolute in its terms. Taylor v. Finnigan, 189 Mass. 568, 76 N. E. 203, 2 L. R. A. (N. S.) 973; McDonough v. Almy, 218 Mass. 409, 105 | N. E. 1012, Ann. Cas. 1915D, 855; Gaston 53 Pa. 266; 1 Mechem on Agency, § 564. v. Gordon, 208 Mass. 265, 94 N. E. 307; Imbeschied v. Lerner, 241 Mass. 199, 135 N. E. 219, 22 A. L. R. 819. Nor did the fact that some of the stock had to be split up affect their obligation to carry out the contract. The representation of the defendant that [4, 5] Ordinarily a principal cannot defeat an agent's right to indemnity, for liabilities incurred in acting for his principal within the scope of his authority, by a termination of the relationship, and the agent may, although the agency has been terminated, recover for liabilities incurred while acting as agent. Baker v. Angell, 46 Hun. (N. Y.) 679; Blackstone v. Buttermore, See also cases collected R. C. L. 834-5. This principle, however, is not applicable to a case like the present where the defendant was justified in revoking his contract because of a previous breach by the plaintiffs. In these circumstances the defendant can not be held liable for loss to the plaintiffs | seal, when admitted without objection, held sufresulting from their refusal to act within ficient to sustain finding that checks were duly the scope of their authority. In the cases presented. cited by the plaintiffs, in this connection, there was no failure on the part of the agent to act within the scope of his authority. The right of an agent to reimbursement when he fails fully to complete his undertaking depends upon the nature of the undertaking and the reason for his failure. Mechem on Agency, § 2481. If the plaintiffs had performed their part of the contract by paying for and taking up and delivering the stock, no loss would have occurred. As their refusal to do so resulted in the loss, it must be borne by them; they can have no claim for indemnity against the defendant. [6] The suggestion of the plaintiffs that the defendant could not rescind because they could not be placed in statu quo is without merit; the cases cited to support this proposition involve breach of warranty, fraud, and like cases where the rescinding party has received benefits which he cannot return. In the case at bar the defendant has received no benefits and there is nothing for him to return. In view of the conclusion reached, it is unnecessary to consider whether as a condition precedent to recovery the plaintiffs were required to tender the price for which the stock was to be sold. No tender in fact was made by them. See Breed v. Hurd, 6 Pick. 356; Folsom v. Barrett, 180 Mass. 439, 62 N. E. 723, 91 Am. St. Rep. 320; Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362. Judgment for the defendant. GETHINS v. BREEYEAR. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1925.) 1. Bills and notes 410-Notary public's certificate of protest for nonpayment of check is incompetent evidence of presentment in absence of official seal. Under G. L. c. 107, § 13, notary public's certificate of protest for nonpayment of check is incompetent evidence of presentment in absence of official seal. 2. Trial 105(5)—Incompetent evidence ad Appeal from Municipal Court of Boston, Appellate Division; J. P. Parmenter, Judge. Action by William H. Breeyear against Thomas J. Gethins. From an order of the appellate division dismissing a report from the municipal court, City of Boston, after findings for plaintiff, defendant appeals. Or der dismissing report affirmed. D. F. McCormack, of Boston, for appellant. CARROLL, J. This action is to recover on two checks signed by the defendant as maker and drawn on the Back Bay National Bank, one for $25 dated March 28, 1922, payable to the order of "Cash," and one for the sum of $75 dated April 3, 1922, payable to the plaintiff. The defendant's contention is that there was no evidence of presentment. The judge found that the checks were presented at the bank. Both bore the notation, "Protested nonpayment, G. K. Gashell, Notary Public May 24, 1922." No seal of the notary public was attached to the notation, but no objection was made to the notation and the certificate was in the case without exception. Assuming that under ordinary circumstances the drawer is not held until the check has been presented to the bank and payment refused (Usher v. A. S. Tucker Co., 217 Mass. 441, 105 N. E. 360, L. R. A. 1916F, 826), "the protest of a bill of exchange, promissory note or order for the payment of money certified by a notary public under his hand and official seal shall be prima facie evidence of the facts stated in such protest, and of the giving of notice to the drawer or indorser." G. L. c. 107, § 13; Manufacturers' National Bank v. Simon, 245 Mass. 325, 139 N. E. 529. [1-3] The official seal of a notary should be added to the certificate to make it prima facie evidence of the giving of the notice to the drawer. Manufacturers' National Bank V. Simon, supra. See Opinion of the Jus tices, 150 Mass. 586, 589, 23 N. E. 850, 6 L. R. A. 842; Johnson v. Brown, 154 Mass. mitted without objection becomes evidence in 105, 27 N. E. 994. If objection were made, case and has probative effect. Incompetent evidence admitted without objection becomes evidence in case and has probative effect subject to exception in case of parol evidence which, though admitted without objection, cannot have effect of varying written instrument. 3. Bills and notes 410-Notary public's certificate admitted without objection held to sustain finding of presentment of check. Notary public's certificate of protest for nonpayment of checks, though without official the certificate without a seal could not be received in evidence. It was incompetent, but incompetent evidence which is admitted without objection becomes evidence in the case and has probative effect. Damon v. Carrol, 163 Mass. 404, 409, 40 N. E. 185; Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 481, 70 N. E. 937; Rapson v. Leighton, 187 Mass. 432, 73 N. E. 540; Jaquith v. Morrill, 204 Mass. 181, 189, 90 N. E. 556. There are exceptions to this rule. Where parol evidence is admitted without For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) objection, it can have no effect to vary a compensation at the rate of $10 a week for a written instrument. Black v. Bachelder, period of fifty weeks. In the minority report 120 Mass. 171; Mears v. Smith, 199 Mass. it was found that the employee was entitled 319, 85 N. E. 165. But this exception has no to general compensation at the minimum rate application in the case at bar. There was of $7; and specific compensation in accordevidence from the certificate under the hand ance with such actual wage as can be deterof the notary public that the check was mined. presented May 24, 1922, and payment refused. This was some evidence of its pre-ployed by Torrey during the year preceding sentment. There was no error of law in finding that the checks were duly presented at the bank. The other questions arising at the trial are not argued by the defendant in his brief, and we treat them as waived. Order dismissing report affirmed. SNOW'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1925.) Master and servant 385 (1)—Compensation measured by "average weekly wages." Where injured employee was not continuously employed by employer during year preceding injury, and there was no one employed at the same work by the same employer during preceding 12 months, "average weekly wages" should be determined under G. L. c. 152, § 1, as amount of weekly wages paid to one in the same grade and class as employee in the locality where he was employed. The employee was not continuously em April 16, 1924, the date of his injury. He Apparently the board based the finding that the employee's wages were $19.20 a week upon the ground that he was employed fortyeight hours a week at $.40 an hour. By G. L. c. 152, § 1, "average weekly wages" means the earnings of the employee dur Appeal from Superior Court, Suffolk Coun- ing the period of twelve calender months imty; Marcus Morton, Judge. Proceeding under the Workmen's Compensation Act by Garland Snow, claimant, opposed by the Sargent Coal Company, the employer, and the Maryland Casualty Company, insurer. Award of compensation was affirmed by the Industrial Accident Board, and the insurer appeals. Reversed, and case recommitted for further hearing. Edward I. Taylor, of Boston (Wm. H. Tribou, of Boston, of counsel), for appellant. F. H. Magison, of Haverhill, for appellee. CARROLL, J. In this proceeding under the Workmen's Compensation Act, the employee was at the time of his injury in the general employment of one Torrey. The Sargent Coal Company hired Torrey to saw wood at a stated price per cord, Torrey "to furnish all help." While engaged in this work the employee was injured and lost his right hand "below the wrist." See G. L. c. 152, § 36 (a), (b). The question in the case is the amount of the employee's weekly wages. The Industrial Accident Board found that his average weekly wage was $19.20, and awarded general compensation at the rate of $12.80 a week from April 23, 1924, continuing subject to the provisions of the statute; and specific mediately preceding the date of the injury, divided by fifty-two. "Where, by reason of the shortness of the time during which the employee has been in the employment of his employer" it is not practicable to compute the wages under this sentence of the statute, the average weekly amount of wages earned during the twelve months preceding the injury "by a person in the same grade employed at the same work by the same employer" may be considered, and "if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district." The wages of the employee could not be computed under the first sentence of the definition, because his employment by Torrey was not continuous throughout the year. As stated in Gillen's Case, 215 Mass. 96, at page 97, 102 N. E. 346, L. R. A. 1916A, 371, this sentence refers to substantially uninterrupted work in a particular employment, from which the wages of the employee were derived. The clause of the section following has reference to a case where the employee has been in the service of his employer such a short period of time that the average weekly wages earned during the preceding twelve months by a person in the same grade as the injured employee, "employed at the same work by the same employer," may be taken For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on the evidence her average weekly wages were to be determined according to her actual earnings. This case was followed in King's Case, 234 Mass. 137, 125 N. E. 153, where the employee worked each Saturday night during the year for a newspaper company, and the amount actually earned was held to control in computing compensation to be paid. See Marvin's Case, 234 Mass. 145, 125 N. E. 154, where this rule was applied; in this case the average weekly wages earned were below the minimum allowed by the statute, and minimum compensation was awarded. into account. There was evidence tending 1 674, Ann. Cas. 1918E, 1052, the employee was to show that no one was employed "at the a spare time weaver working after school and. same work by the same employer," during all day on Saturday, and earning $3 a week; the twelve months preceding the date of the employee's injury. This part of the section, therefore, does not apply in estimating the employee's weekly wages. By the final sentence of the definition, without reference to the same employment by the same employer, weekly wages may be ascertained, if the first two sentences are not pertinent, based on weekly wages received by a person "in the same grade employed in the same class of employment and in the same district." Although there was no evidence to show that amount of wages paid to a person in the same grade and class in the particular locality, we think the case should be referred to the Industrial Accident Board for the purpose of determining, if possible, the amount of weekly wages paid to a person in the same grade and class as the injured employee, in the locality where he was employed. It may be that no evidence can be found bearing on this point, and that all the evidence relating to the question was presented at the former hearing; but on the record before us there is no evidence to support the finding of the Industrial Accident Board. The employee was not FULLER et al. v. TRUSTEES OF DEER at work continuously for twelve months for Torrey; there was no evidence that Torrey employed any one at the same work during the preceding twelve months; and there was The decree must be reversed and the case recommitted to the Industrial Accident Board for further hearing on the question of the weekly wages of the employee under the final section of the statute referred to, at which hearing either party may offer additional evidence. So ordered. FIELD ACADEMY AND DICKINSON (Supreme Judicial Court of Massachusetts. no evidence to sustain the finding under the 1. Municipal corporations 993 (2)-Towns final sentence defining weekly wages. The minority decision evidently had reference to section 34 of the statute, which provides for a minimum compensation of $7 a week for total incapacity; and to section 36 relating to minimum compensation for specific injuries other than those mentioned. It remains to consider some of the cases bearing on the question of weekly wages under the Workmen's Compensation Act. In Gillen's Case, supra, the employee was engaged in substantially continuous work as a longshoreman throughout the year, although employed by different steamship companies. In Gove's Case, 223 Mass. 187, 111 N. E. 702, the employee was a carpenter and there was evidence of the rate of wages paid to carpenters in the district where he was employed. Bartoni's Case, 225 Mass. 349, 114 N. E. 663, L. R. A. 1917E, 765, decided that average weekly wages in an employment, where, on account of weather conditions, there was no work to be done for a period of 12.97 weeks, the average weekly wages of the employee were to be determined by dividing the total weekly amount of wages received during the preceding year by the actual number of weeks during which he worked. None of these cases are pertinent to the case at bar. In Rice's Case, 229 Mass. 325, 118 N. E. 61-Equity has no jurisdiction of suit by taxpayers to restrain unlawful contracts, or acts. There is no general jurisdiction in equity to entertain suit by individual taxpayers to restrain cities and towns from carrying out unlawful contracts or performing other similar wrongful acts. 2. Towns 61-Act authorizing equity to restrain illegal expenditures is preventive, but is neither anticipatory nor retroactive. G. L. c. 40, § 53, by which equity on petition of taxpayers may restrain illegal expendiis preventive, but neither anticipatory nor tures, etc., by town or its officers or agents, retroactive. 3. Schools and school districts 111-Bill by taxpayers to compel private school to account for moneys received from town will not lie. der G. L. c. 40, § 53, to compel trustees of Bill by taxpayers of town will not lie uneducational institution, under private control. not a public school, for which town, under Const. Amends. 18, 46, could lawfully appropriate moneys, to account for and repay moneys received from town. 4. Equity 247-Trial court held unauthor ized to make permission to amend bill conditional on payment of counsel fees. Where trial court sustained demurrer to bill by taxpayers to compel alleged private school to account for and repay moneys received from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) 6. Equity 267-Whether motion to amend bill should have been allowed rested in discretion to be considered on merits apart from terms imposed. The question whether plaintiffs should have been allowed to amend bill, one amended bill having already been allowed, rested in sound judicial discretion, but it should have been considered on its merits apart from consideration of extraordinary terms imposed on allowance. 7. Costs 91-Whether separate costs to defendants or single bill of costs be allowed rests in discretion. In view of G. L. c. 261, § 13, where there are several defendants to bill in equity, whether separate costs or a single bill of costs be allowed rests in sound judicial discretion. ate, pay, or contribute public money to its aid or support under the Eighteenth and Forty-Sixth Amendments to the Constitution of the commonwealth, and that in each of the years from and including 1918 to 1923 the town has unlawfully appropriated and paid to the academy stated sums of money; that the individuals as officers of the town have aided and abetted in making these al leged unlawful payments, and that all concerned in the transactions were cognizant of their unlawful nature. The prayer of the bill is to compel an accounting to the town of these sums of money and a repayment thereof to the town by the other defendants. All the defendants demurred. [1, 2] There is no general jurisdiction in equity in this commonwealth "to entertain a suit by individual taxpayers to restrain cities and towns from carrying out invalid contracts, and performing other similar wrongful acts." Steele v. Municipal Signal Co., 160 Mass. 36, 38, 35 N. E. 105, 106; Larcom v. Olin, 160 Mass. 102, 110, 35 N. E. 113; Prince v. Crocker, 166 Mass. 347, 358, 44 N. E. 446, 32 L. R. A. 610; Sylvester v. Webb, 179 Mass. 236, 241, 60 N. E. 495, 52 L. R. A. 518; Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N. E. 39. The only ground on which residents of a Appeal from Superior Court, Franklin municipality can invoke the aid of a court of County; F. W. Fosdick, Judge. Bill in equity by Arthur W. Fuller and others against the Trustees of Deerfield Academy and the Dickinson High School and others to compel an accounting for moneys received from the town of Deerfield and repayment thereof to town. Demurrers to bill were sustained, amendment permitted on payment of named sum, to be divided among defendants' attorneys, and petitioners appeal. Reversed in part. equity with respect in general to the conduct of municipal affairs is set out in G. L. c. 40, § 53, in these words: "If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town for any purpose or object or in any manner other than that for and in which such town has the raise or expend money or incur obligations, the legal and constitutional right and power to supreme judicial or superior court may, upon the petition of not less than ten taxable inequity, and may, before the final determination of the cause, restrain the unlawful exercise E. H. Abbot, Jr., and J. W. Allen, both of habitants of the town, determine the same in Boston, for appellants. J. Noble and A. P. Loring, both of Boston, or abuse of such corporate power." for appellees. This statute is preventive. It is neither RUGG, C. J. This is a suit in equity anticipatory nor retroactive. It was said brought under G. L. c. 40, § 53, by ten or in Hood v. Lynn, 1 Allen, 103, 104, that the more taxable inhabitants of the town of aim of this statute was "to furnish a prompt Deerfield. The respondents are the trustees and effective remedy to restrain cities and of the Deerfield Academy and Dickinson High towns from raising, borrowing, or expending School, hereafter called the academy, the money for purposes not authorized by law, town of Deerfield, hereafter called the town, and to enable a minority to guard their and divers individuals alleged to be the rights and interests, when such unlawful selectmen, school committee, building com- acts were threatened or in contemplation." mittee, and treasurer of the town. The al- It was held in Carlton v. Salem, 103 Mass. legations of the bill, as amended, with which 141, that an anticipatory bill could not be alone we are now concerned, in brief are that maintained under this statute, but there must the academy is an educational corporation be allegations of actual vote to raise or exclusively under private control and not to pay money or to pledge credit for an ila public school under the management of the legal purpose. A well grounded expectation town and not an institution of such char- of such conduct is not enough to confer jurisacter that the town could lawfully appropri- diction under the statute. Some one of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |