H. W. Blake, for appellants. Amey, for appellee. Harry B. | articles. Plaintiff wrote, proposing to buy another outfit if defendant would extend certain credit, which defendant agreed to do, stating, however, that he had no buckets of the kind specified in plaintiff's list. Plaintiff replied that another kind mentioned in defendant's preceding letter might be sent, and ordered two small articles not mentioned in the previous correspondence, and requested prompt shipment. Held, that the correspondence constituted contract for the articles finally ordered by plain MUNSON, J. The report of a referee is to be accepted by the court, "unless cause is shown to the contrary." P. S. 1793. If a report is not accepted, the reference may be stricken off; and when the case is finally disposed of, on a further reference or a trial in court, the party recovering is to be allowed the taxable costs of the former reference. P. S. 1795. The power to reject a report for cause shown implies the power to conduct an inquiry as to the existence of an alleged cause. When a report is objected to for mat ters not appearing therein, the court may determine the question upon evidence taken by affidavit. Fuller v. Wright, 10 Vt. 512; Thayer v. Central Vt. R. R. Co., 60 Vt. 214, 13 Atl. 859. A charge that the referee has en tered the service of one of the parties since his appointment, and has acted and will continue to act corruptly and fraudulently in the performance of his duties, is certainly proper for the consideration of a court, which is authorized to accept his report, or to reject it and cancel the reference. tiff. a MUNSON, J. The suit is to recover damages for the nondelivery of goods purchased. The defendant denies that there was a sale. The question is whether certain correspondence shows a contract. The defendant was engaged in the manufacture and sale of sugar utensils and supplies. The plaintiff, wishing to fit up his sugar place for the making of maple sugar, applied to the defendant by letter for his catalogue of evaporators and sugaring utensils. The defendant replied, inclosing a price list of evaporators, and stating that he had mail We think the powers of the county court as above stated meet every objection suggested by the orators. Their remedy at law is complete and adequate. The matters complained of can be inquired into by the county court, as well as by a master. If cause is shown, the judgment can be prevented by a rejection of the report as well as by a restraining order. With the report disposed of, a new hearing of the issue by another trier can be se-ed him a catalogue, and that if he would place cured, at law as well as in equity. An injunction here would serve merely to transfer the litigation from law to equity, and the process is not available for that purpose. Decree affirmed, and cause remanded. ITY TO OFFER. An acceptance varying from the offer will not conclude a contract, but a proposal for an addition to the offer may be a mere request, and not a conditon to acceptance. [Ed. Note.-For other cases. see Contracts, Cent. Dig. § 99; Dec. Dig. § 23.*] 2. CONTRACTS (§ 169*)-CONSTRUCTION-STTUATION OF PARTIES. A contract should be construed in the light of the situation and purpose of the parties, the subject-matter, and the course of the negotiations. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 8 752; Dec. Dig. § 169.*] 3. SALES (§ 32*)-EXISTENCE OF CONTRACT. Defendant sent plaintiff his price list, stating that he had mailed a catalogue and offering special terms. At plaintiff's subsequent request defendant quoted prices and terms on specified an order by return mail and pay on delivery he would allow him a special discount of 10 per cent., or that he might purchase at regular price by paying one-half cash May 1st and the balance in one year. Plaintiff acknowledged receipt of the catalogue, and inquired the prices of evaporators of two specified sizes. Defendant replied, giving prices of such sized evaporators with arch complete, including chimney, grate bars, etc., and saying that if plaintiff would send cash with order he would allow him a discount of 5 per cent. ; that his regular terms were one-half cash May 1st and balance in one year; and that if he bought on those terms the price would be net. February 13th plaintiff wrote defendant proposing to buy an evaporator of a specified size and quality, an eight-barrel store tank of a certain description, 300 No. 4 spouts with hooks, and 300 galvanized iron buckets of $16 quality, if the defendant would give three years' time, first payment to be made May 1, 1907. February 16th defendant wrote plaintiff that he would accept his order and make out three notes of equal payments, May 1, 1907, 1908, and 1909, but saying that he had no galvanized buckets of the $16 quality, and that the only thing he could give him was his best bucket, selling for $24 per 100, or I. C. Coke tin buckets, for $18 per 100. | ries from the offer will not conclude a conTo this plaintiff replied under date of Febru- tract. Davenport v. Newton, 71 Vt. 11, 21, ary 18th: "Would say of the buckets that you may send us 300 AAAA 14 bright charcoal tin buckets, also a 7/16-inch tapping bit and 1⁄2-inch reamer"-concluding with a request that he ship as soon as possible, and thanking him for the extra time allowed. Defendant did not ship the goods, and after repeated communications of inquiry wrote plaintiff, under date of March 19th, that he could not ship them because the information he had regarding plaintiff's financial standing was not satisfactory. It appears that the buckets mentioned in plaintiff's letter of February 18th were the same as the $18 bucket mentioned in the defendant's last preceding letter, and that the tapping bit and reamer first mentioned in plaintiff's letter of February 18th together cost 75 cents. These facts, with the letters, make the case. The court directed a verdict for the defendant, on the ground that the plaintiff had not proved a contract. It is argued in support of the judgment that the letters say nothing about the price of some of the articles ordered. It was not necessary that they should. It is evident from the correspondence that the parties were negotiating on the basis of a price list; the defendant offering a discount for cash, and the plaintiff seeking a longer time of credit at regular prices. When this was settled, the price list would determine the amount of the purchase. It is said that the giving of notes was first referred to in defendant's letter of February 16th, and that the plaintiff's letter of February 18th contains no agreement to give them. We think the plaintiff's agreement to the proposed change in the list ordered, with thanks for the extra time allowed for payment, was an implied assent to the manner in which it was proposed that the terms of payment should be evidenced. It is said that the defendant nowhere proposed to sell plaintiff 300 buckets. His whole correspondence was an offer to supply the defendant, and his letter of February 16th plainly gave the plaintiff his choice between two kinds of buckets then in stock. It is said that in the plaintiff's letter regarding the buckets the other articles previously mentioned in the negotiation were entirely omitted. It was not necessary that the previous steps in the negotiation should be recited in each succeeding letter. Plaintiff's letter of February 13th was a proposal to buy a specified list of goods if the defendant would give a certain period of credit. Defendant's letter of February 16th agreed to give the credit asked for, but proposed a substitution of one grade of goods for another as to a part of the order. Plaintiff's letter of February 18th agreed to the proposed change. It is plain that these three letters resulted in an agreement, unless this was prevented by plaintiff's mention of the bit and reamer. 42 Atl. 1087. But the reply may go beyond the terms of the proposal without qualifying the acceptance. The addition may be such as fairly to import a request instead of a condition. In determining what one party intended, and the other ought to have understood, regard must be had to the situation and purpose of the parties, and the subjectmatter and course of the negotiations. These parties had been negotiating regarding the substantial outfit of a sugar orchard, with proposals and counter-proposals induced by the condition of the defendant's stock and the plaintiff's desire to secure a longer term of credit. This negotiation was brought to an agreement by plaintiff's letter of February 18th, unless it was held open by the introduction of a new subject-matter-the tapping bit and reamer. The language of this letter is not so complete and exact as to leave no room for construction. If the meaning is that the defendant might make the proposed substitution of buckets provided he would add to the shipment a bit and a reamer, there was no contract. But we think the purport of the letter is the same as if the plaintiff had written: "You may also put in, if you have them on hand, a tapping bit and reamer." It seems clear that, if the defendant had shipped the goods without the bit and reamer, the plaintiff could not have refused to take them on the ground that those articles were omitted. There are a few cases somewhat in point. In Culton v. Gilchrist, 92 Iowa, 718, 61 N. W. 384, plaintiff wrote defendant that he would lease to him for three or five years as he might choose. Defendant thereupon wrote plaintiff that he might make out a lease for five years; that his reason for wanting the place for five years was that he would like to put up a small cookroom; that he would like to do this himself, if the plaintiff would give him in the lease the privilege of removing the addition if he did not buy the place. It was held that the acceptance was complete; that the matter subsequently introduced was not a condition, but a request. In Addinell's Case, L. R. 1 Eq. 225, the facts were these: The Leeds Banking Company issued a circular letter offering to its shareholders, at a certain price, one reserved share for every five shares held, and requested the shareholder to state whether he wished to take up the shares, and also whether, in the event of any shares remaining, he wished to have more allotted to him, and, if so, how many, and stating that, if taken up, the amount must be paid by October 1st, but without making further condition. Addinell, the holder of 20 shares, replied, in a form submitted with the offer, that he agreed to take 4 shares, being his proportion of the allotment, and his proportion of shares in addition, if he could have them on the terms It is certain that an acceptance which va- stated in the circular. The directors replied that they had allotted him 4 shares in addition to those he had accepted, making his number of new shares 8, and that the amount must be paid by October 1st or the shares would be forfeited. It was argued for Addinell that his reply to the bank's first communication was an acceptance, not only of the 4 shares but of such additional shares as might be allotted him; that it could not be said that there were different terms applicable to the two sets of shares; and that the additional provision of forfeiture contained in the last letter of the bank applied to both sets, and prevented the completion of a contract. It was considered, however, that there was no offer of more than the 4 shares, so that Addinell's communication was an acceptance of the 4 shares only, with a request for a further allotment; that the rights of the bank concerning the first 4 shares were in no way dependent upon what might be done regarding the additional shares; and that, consequently, the subsequent introduction of the clause of forfeiture affected the additional shares only. The same thing was held in Jackson v. Turquand, L. R. 4 H. L. 305. Judgment reversed, and cause remanded. (30 R. I. 478) SEARLS et al. v. CHARITABLE BAPTIST SOCIETY et al. tees thereunder, and desire a construction of the provisions aforesaid, and the instructions of the court thereupon, with reference to contingencies which cannot arise during the lifetime of Grace Granger, the sister of the petitioner, and which can never arise in the event of the prior death of her brother, William D. Granger, and of his children, without issue, since in that event the provisions of the will are not affected by the particular provisions of the codicil which are here in question. During the life of Grace Granger the duty of the trustees is concededly defined as follows: "All the rest and residue of my estate, real, personal and mixed, of whatsoever nature and wheresoever situated, of which I may die seised and possessed, or to which I may be in any way entitled at the time of my death, I give, devise and bequeath to the said Albert Babcock and to the said Grace Granger, and to the survivor of them, and to their successor or successors in the trust hereby created, but in trust nevertheless upon the trusts and for the uses and purposes following; that is to say: To hold, stand seised and possessed of said trust estate, and to collect and receive the income thereof, and to pay over said income as often as once in three months to my said sister Grace Granger, for and during her natural life." In Goddard v. Brown, 12 R. I. 31, which was a bill in equity for instructions and to obtain a judicial construction of a will, it was said by Durfee, C. J., as follows (page (Supreme Court of Rhode Island. June 3, 1910.) WILLS (§ 699*)-BILL TO CONSTRUE-PREMA-40): "The bill sets forth that, in the execu TURITY-DISMISSAL. Where a bill brought by testamentary trustees for the construction of a clause of a will and a portion of the codicil was certified to the Supreme Court under Gen. Laws 1909, c. 289, $35, providing that the superior court shall certify to the Supreme Court all bills in equity for the construction of wills, etc., and none of the questions propounded would arise during the lifetime of the beneficiary, and might never arise, the proceeding was prematurely instituted. [Ed. Note.-For other cases, see Wills, Dec. Dig. 699.*] tion of the trust, sundry questions have arisen as to which the complainants are advised that they cannot safely act without the instructions of the court. The bill, therefore, submits a series of ten questions for decision; some of them involving very perplexing inquiries in the law of wills. The bill does not disclose any special exigency which calls for a decision of the questions, and, in respect of some of them, it is not clear that they are now, or that they will ever become, practical Case Certified from Superior Court, Provi-ly important. Every trust which is at all dence and Bristol Counties. Bill by Charles E. Searls and others, as executors and trustees of the will of Daniel L. D. Granger, against the Charitable Baptist Society and others. Bill certified to Supreme Court. Remanded, with directions to enter a decree dismissing the bill. Comstock & Canning and Henry C. Hart, for complainants. Patrick P. Curran and Jeremiah E. O'Connell, for respondents. BLODGETT, J. This bill for the construction of the sixth clause of the will and a portion of the codicil thereto of the late Daniel L. D. Granger has been certified to this court for a final decree under the provisions of Gen. Laws, c. 289, § 35. complicated suggests numerous questions which will in certain contingencies need to be decided; but we do not understand that the trustee is entitled to put the estate to the expense, or the court to the trouble, of their decision until the contingencies have happened, unless he requires instruction in the exercise of his duties and powers, with a view to the possibility of their happening. It would be unwise, in the absence of any exigency, to predetermine such questions; for it may be not only useless to do so, but embarrassing to have done so, inasmuch as such questions may actually arise under a different state of facts from any which has been anticipated." And a similar rule was applied by the SuThe petitioners are the executors and trus- preme Court of Massachusetts in a similar * proceeding in Minot v. Taylor, 129 Mass. 160, 164; the court holding as follows: "The other question raised by the report, whether the limitation over to the grandchildren of Sarah as they attain the age of 21 years is void for remoteness, is premature, and cannot properly be considered in this suit. It may involve the rights of persons not now in being, and does not affect the present duty of the trustees. The trustee has the right to ask the instruction of the court as to his present duties, but not as to what may be his duty in future uncertain contingencies." This case was affirmed and followed in Bullard v. Chandler, 149 Mass. 532, 538, 21 N. E. 951, 952, 5 L. R. A. 104, wherein it is said: "It would be premature to discuss these and similar questions before the life interest of Mr. Chandler expires. It has been often held that one of the principal requisites for the maintenance of a bill for instructions is the fiduciary possession of a fund of which some disposition is required to be made pres ently"-citing cases. Inasmuch as none of the questions propounded arise during the lifetime of Grace Granger, and may, as before stated, never arise, we are of the opinion that this proceeding is prematurely instituted, and must be dismissed. The cause will be remanded to the superior court, with direction to enter a decree dismissing the bill without prejudice, as prematurely preferred. (30 R. I. 464) SMITH v. DE ROBBIO et al. BLODGETT, J. This case is before the court upon the following agreed statement of facts: "This is an action of trespass and ejectment, brought by John P. Smith, of Providence, in the state of Rhode Island, against Michele De Robbio and Vincenzina De Robbio, both of Cranston, in said state, for the recovery of certain land situated in the town of Cranston, of which the defendants are in actual possession. The plaintiff, grantee of one Rowland H. Wilson, claims title to a portion of certain land now in the possession of the defendants under a tax title acquired by said Rowland H. Wilson from Joseph A. Shaw, collector of taxes for the town of Cranston, by deed dated December In 1905, the time when the tax 22, 1906. assessment under which Smith claims title was made, one Henry E. Simmons was seised and possessed of lot 26 of the Arlington Heights Park Plat, which said lot of land and partly in the town of Cranston. was situated partly in the city of Providence The tax assessed for said year 1905 against Henry E. Simmons by the tax assessors of Cranston was for 'Lot 26, Arlington Heights Park Plat.' The tax not having been paid, the land assessed to Henry E. Simmons, as aforesaid, was sold for its nonpayment, and a deed given by Joseph A. Shaw, collector, dated December 22, 1906, to Rowland H. town clerk's office in said Cranston in Deed Wilson, which said deed is recorded in the Book 96, page 472, and purported to convey the following described land: "That lot of land situate in the town of Cranston, known and described as lot 26 on the Arlington Heights Plat.' Later, by deed dated March (Supreme Court of Rhode Island. May 17, 30, 1907, and recorded in said Cranston in 1910.) TAXATION (§ 421*)-ASSESSMENT OF LANDDESCRIPTION. Gen. Laws 1906, c. 45, § 4, as amended by Pub. Laws 1900-01, c. 920, provides that real estate taxes shall be assessed to the owners, and separate tracts or parcels shall be separately described and valued as far as practicable. Held, that where a lot, known as "lot 26, Arlington Heights Park Plat," was assessed under such description by the assessors of C., when a part of the lot was located in another city, and the part lying in C. was susceptible of an accurate description, the assessment and sale pursuant thereto were void. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 720-735; Dec. Dig. § 421.*] Case Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Action by John P. Smith against Michele De Robbio and others. Case certified to Su preme Court on agreed statement of facts, as authorized by General Laws 1896, c. 45, 4. Case remanded, with directions to enter judgment for defendants. Deed Book 105, page 471, the said Wilson purported to convey the premises, purchased by him from said Shaw, to John P. Smith, the present plaintiff; the deed from Wilson to Smith describing the land as 'that lot of land situate in the town of Cranston, located and described as lot 26 on the Arlington Heights Park Plat.' "The defendants claim title to the lot in question, which lies partly in the city of Providence and partly in the town of Cranston, under a mortgagee's deed dated July 31, 1906, which said deed to the defendants was recorded in the city of Providence on July 31, 1906, in Deed Book 482, at page 201, and in the town of Cranston on August 6, 1909, in Deed Book 113, at page 143; the recording of the defendants' deed in Cranston being subsequent to the instituting of the present proceedings. It is agreed that there is ar Arlington Heights Park Plat, but no Arling ton Heights Plat, and no other plat in Cranston the name of which includes the words 'Arlington Heights'; that there is no lot 26 Page & Cushing, for plaintiff. A. A. Capo- on said Arlington Heights Park Plat sittosto, for defendants. uated wholly in the town of Cranston; that For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 76 A.-11 9 there is a lot 26 on the Arlington Heights | assessment roll as "Lot 26, Arlington Heights Park Plat located partly in the city of Providence and partly in the town of Cranston, which said lot in 1905, the time of said assessment, belonged to Henry E. Simmons." Section 4, c. 45, Gen. Laws 1896, as amended by chapter 920, Pub. Laws, passed November 22, 1901, is as follows: "Taxes on real estate shall be assessed to the owners, and separate tracts or parcels shall be separately described and valued as far as practicable: Provided, however, that no defect in description or mistake in valuation shall be taken advantage of by any taxpayer in order to avoid the payment of a tax assessed against him, unless he shall have brought to the assessors a true and exact account of all his ratable estate, describing and specifying the value of every parcel of his real and personal estate, at such time as they may prescribe for the assessing of the tax." The assessment in the case at bar was thus made by the board of assessors of Cranston, "Lot 26, Arlington Heights Park Plat." If less than the entire lot on this plat was thereby intended, it was not only "practicable," in the language of the statute, to describe such portion, but, inasmuch as the statute requires a description of each tract or parcel assessed, we are not at liberty to assume that less than the entire lot was so assessed, and the defendants' contention that the description of the lot in the Park Plat" is an assessment of the whole lot in Cranston, although only a portion of it is situated therein, must be upheld. In Tallman v. White, 2 N. Y. 66, 72, the Court of Appeals of New York held: "In a deed between individuals, a part of the description of the premises conveyed may be rejected on account of its falsity, if after its rejection there is enough left to show clearly what the owner intended to convey. In this case, if the owner of the land had executed the deed, giving the boundaries correctly, the title might have passed, although the land was falsely described as to the village in which it lay. It would then present the question what the order intended to convey. There is no such question here. The owner conveys nothing, and does not intend to convey anything. If the officers, who undertake to convey for him, intend to convey lands lying in one place by a deed describing them as lying in a different place, they intend to do what the statute, under which they profess to act, does not permit. A judicial decision which should sanction a title like the present would open a door to innumerable frauds." R. R. & Bridge Co. v. District of Columbia, 1 Mackey (D. C.) 217, was a case in which it was sought to enjoin the collection of a tax assessed upon a bridge extending from Georgetown, in the District of Columbia, across the Potomac and upon the Virginia shore. The Supreme Court of the District of Columbia observes, upon the answer of the commissioners thereto, as follows (pages 233, 234): "It seems plain from the answer of the commissioners that they distinguish between the entire wooden bridge, upon which the assessment was made, and that portion of the bridge which they design to sell. When they are stating what was assessed, they declare it was 'the wooden bridge'; that is, the entire bridge. But in describing what they intend to sell they aver it is only that portion of said bridge which was within the limits of the District. is not a case merely of excessive valuation, or of an omission upon the part of officials to comply with the directory provisions of the statute; but it is a claim advanced in this court by the District authorities to levy a tax upon the entire bridge, including that portion within Virginia, and we must, therefore, hold the assessment was illegal, and the collection of the tax should not be enforced." And see Bird v. Benlisa, 142 U. S. 664, 12 Sup. Ct. 323, 35 L. Ed. 1151; Orton v. Noonan et al., 23 Wis. 102. This It is obvious that this defect in Wilson's title precludes his grantee, Smith, the plaintiff in the case at bar, from a recovery, and the order must therefore be: Case remitted to the superior court, with direction to enter judgment for the defendants. |