defendants, that he is not entitled to a decree for specific performance; that there was an oral modification of the said contract between the parties after its execution, which brings the contract as modified within the statute of frauds; and that "Even if the plaintiff is entitled to a decree for specific performance, the final decree of the Superior Court should be so modified as to require the plaintiff to pay to the defendants, as a condition of the defendants' specifically performing the contract, the balance of the purchase price of the property over the first mortgage in cash, and not in time payments.'

The recitation of facts in the master's report upon which the master found "the plaintiff has not been guilty of any unfair conduct and has not taken any inequitable advantage of the defendants;" as also the facts upon which the defendants rely to establish their contention that the plaintiff has been guilty of such unfair conduct and has taken such inequitable advantage of the defendants, are as follows: The defendants are husband and wife, and occupy as a home part of the house which the plaintiff seeks to have conveyed to him; they are middle aged people, unable to read or write either the English or Italian language, but have the capacity to speak the Italian tongue and also to understand and to speak the English tongue to a great extent. The plaintiff is twenty-nine years of age, is able to read and write, and speaks both English and Italian. The relation existing between him and the defendants had been of a very friendly nature, and the defendants were much interested in his progress and success. The father of the plaintiff owns the estate adjoining that of the defendants. The plaintiff desired to purchase the property of the defendants so that he might build a garage to house his own machines, furnish space to store automobiles belonging to others, and erect a gas-filling station. At a conference between the parties, held in June, 1922, the plaintiff asked Mrs. Cordone what she would take for the property. She said $6,000; and the plaintiff replied, "It is too much." At a meeting held a short time after it was agreed that the price should be $5,450; of this amount $3,000 was represented by a mortgage

held by a savings bank. The terms of payment were not settled until the making of the contract, a copy of which is annexed to the bill. At the last conference the defendants stated that they desired to remain on the premises for a period of three months after the date of the deed, so that they might harvest the garden which they had planted and gather the grapes which they expected on vines set out by them. The plaintiff assented to this and admitted at the hearing before the master that the possibility of remaining seemed to be one of the reasons the defendants would sell. On July 8, 1922, the defendants went with the plaintiff to the office of a lawyer selected by the defendants, after the plaintiff had expressed a preference for another, for the purpose of making a formal contract of sale. The lawyer speaks Italian fluently and this language was used in connection with the making of the contract.

The master finds there was more or less discussion as to the terms of payment; that the defendants, at first, desired cash in full for the amount over and above the mortgage held by the savings bank; that the terms of payment were finally determined upon to be as set forth in the contract, except that the first payment under the mortgage deed would become due and payable six months from the date of the deed. He further finds that "after the contract was drawn it was read and explained to all in Italian, fully, completely and exactly as it appears in English, with no additions, or changes whatever;" and that, after being read, it was signed by the defendants, and by the plaintiff. Some evidence, the master says, was offered that Mrs. Cordone became angry because she was not allowed to talk after the contract was signed; that she desired to complain about the terms of payment; but he finds that "no attempt was made to prevent her expressing anything which she had in mind and that she did not make any complaint that evening after the contract was signed as to the terms of the contract as drawn."

It appears in the report that a day or two before the papers were to be passed Mrs. Cordone became apprehensive of being put off the premises by the plaintiff as soon as he

obtained his deed, and refused to sign the deed unless the plaintiff gave her a written agreement to allow her to remain on the premises at her convenience or accommodation at the rent of $8 per month. The plaintiff was not willing to make such an arrangement but did offer to execute a written agreement to allow the defendants to remain for three months at a rent of $10 per month. The defendants would not accept this and offered to return the $100 that had been paid; the plaintiff refused to accept it, and they withdrew. The foregoing full statement of the facts demonstrates without analysis that the defendants have no substantial justification for their claim of any unfair conduct or of any inequitable advantage taken of them by the plaintiff.

The claim of the defendants that the contract was changed by mutual agreement is found by the master to be untrue. Such claim rests upon the evidence that, the defendants desiring to purchase a smaller house for their own use, Mrs. Cordone saw her attorney and stated that she would like to have the cash instead of the second mortgage provided for in the contract. As a result of this the plaintiff informed her that he would do his best to find the money and give her cash. It further appeared in evidence that the plaintiff procured the cash and was at the time when the deed was to pass, and ever since has been, ready, willing, and able to make full payment of the purchase price over and above the mortgage held by the savings bank. We find nothing in the recorded facts which support this claim of the defendants; and we find nothing in the record which is inconsistent with the conclusions of fact found by the master.

It follows that the decree must be affirmed with costs.

So ordered.

FRANK J. DUGGAN vs. LEWIS A. WOODIS.

Worcester. September 25, 1923. — October 10, 1923.

Present: RUGG, C.J., BRALEY, DECOURCY, PIERCE, & JENNEY, JJ.

Agency, Existence of relation, Scope of employment. Practice, Civil, Request for ruling, Exceptions.

In an action for personal injuries and property damage resulting from alleged negligent operation of an automobile owned by the defendant and driven by one alleged to be his servant or agent, the existence of the agency and the scope of the agent's employment were in issue. Upon evidence warranting the findings, a judge found in substance that the alleged agent, licensed to operate a motor vehicle but not as a chauffeur, for some time previous to the accident had been in the employ of the defendant and had driven trucks of the defendant and had received pay therefor; that the defendant owned several trucks and motor vehicles; that on the day of the accident the alleged agent, acting for himself and several companions who shared the expense with him, rented the automobile from the defendant at noon for the day for a pleasure trip of their own; that they returned to the defendant's garage somewhere about ten o'clock in the evening, that shortly afterwards upon receipt of a telephone call the alleged agent again took the car and went out with it, and that, while he then was out with the car, the accident took place. Held, that

(1) A conclusion by the judge, that the plaintiff had not sustained the burden of proving that the alleged agent was at the time of the accident in the employ of the defendant and engaged in the business of the defendant, was warranted;

(2) A ruling that on all the evidence the plaintiff could not recover was warranted.

In an action of tort wherein the declaration contains two counts, each alleging as the basis of the plaintiff's claim "negligent" operation of an automobile by the defendant, his agents or servants, a request by the plaintiff for a ruling, that on all the evidence the plaintiff is entitled to recover," does not raise the question, whether the plaintiff was entitled to recover on the ground that, by reason of a violation of St. 1915, c. 16, § 2, the defendant permitted his automobile to become a trespasser on the highway and therefore was liable for the plaintiff's injuries regardless of whether the driver of the defendant's car was or was not negligent or was or was not engaged in the business of the defendant; and, since a denial of such a request must be presumed to have been made with reference to the pleadings, an exception to such a refusal must be overruled.

TORT, with a declaration, quoted in the opinion, setting forth claims for personal injuries and property damage. Writ dated September 22, 1920.

In the Superior Court, the action was heard by Bishop, J., without a jury. Material findings and rulings by the judge are described in the opinion. There was a finding for the defendant. The plaintiff alleged exceptions.

F. P. Ryan, for the plaintiff.

C. W. Proctor, (J. C. McDonald with him,) for the defendant.

PIERCE, J. This is an action of tort, brought by the plaintiff against the defendant to recover damages for injury to his person and to his automobile as a result of a collision.

The claim of the plaintiff is set out in two counts of his declaration:

"Count 1. The plaintiff says that on or about the 22nd day of August, 1920, he was riding in an automobile along Mechanic Street in the city of Worcester, and in the exercise of due care; that the defendant, his agents or servants negligently propelled an automobile into and against the automobile of the plaintiff, causing the plaintiff to be injured about the head, back and limbs.

"Count 2. The plaintiff says that on or about the 22nd day of August, 1920, he was riding in an automobile along Mechanic Street in the city of Worcester, and in the exercise of due care; that the defendant. his agents, or servants, negligently propelled an automobile into and against the automobile of the plaintiff; that the automobile of the plaintiff was damaged greatly necessitating the expenditure of large sums of money to have same repaired, and that the plaintiff was compelled to pay large sums of money for the use of other automobiles, while his automobile was being repaired."

The defendant's answer was a general denial and a plea of contributory negligence.

The case was tried before a judge of the Superior Court sitting without a jury. There was evidence sufficient to warrant the judge in finding that the plaintiff was in the exercise of due care; and that the defendant was negligent, if the judge should find that the driver of the automobile at the time of the accident was the servant of the defendant and was then engaged in the business of the defendant.