the record of this case we are able to say that the proper notice could have been given within a few days after the accident, as well as, or better than, nine months afterwards. The insured undertook at their own peril to decide whether there was or would be a liability or not, and whether the injury received was severe enough to require the stipulated notice to be given. Having assumed that hazard, and realized their mistake, they have no one to blame but themselves that they are left without a remedy.

Equally unavailing for the defendants in error is the claim that the stipulation for notice was waived by Mason, the insurance company's local soliciting agent, or that the company is estopped to plead the contract in defense, by misleading statements made by Mason. The apparent scope of Mason's authority did not justify the insured in accepting and relying upon his words when this accident was verbally reported to him. He was a mere soliciting agent, and was invested with none of the powers of a general agent or of a special adjusting agent. It does not appear to us that he was intrusted with any duties in regard to receiving and transmitting notice or of adjustment between the parties to the policy. So far as we are informed, his duties ended when he received and transmitted to the company the application of the insured for the insurance. Therefore the defendants in error had no right to rely on his advice or suggestions in regard to a matter which was not within the apparent scope of his authority, and still less could they so rely on his advice when it was distinctly contrary to the contract stipulations. It was further expressly stipulated in the policy that "no agent has authority to waive or alter anything in this policy contained." The policy is not unilateral. Since the insured have received, accepted, and retained the policy, they are parties to it, although not signing it, and are presumed to know and accept all of its terms and conditions. surance Co. v. Hook, 61 Ohio St. 256, 56 N. E. 906. The insured, having agreed that the stipulation as to notice could not be waived or altered by an agent, cannot excuse themselves for nonperformance of the contract as to notice to the company by showing that they acted on the suggestion of the soliciting agent that they should not perform the contract as they had made it. In this conclusion we are sustained by numerous decisions in other states. We cite only a few of them. Carey v. Insurance Co., 84 Wis. 80, 54 N. W. 18, 20 L. R. A. 267; Smith v. Insurance Co., 60 Vt. 682, 15 Atl. 353, 1 L. R. A. 216; Porter v. Insurance Co., 160 Mass. 183, 35 N. E. 678; Walsh v. Insurance Co., 73 N. Y. 10; Kirkman v. Insurance Co., 90 Iowa, 457, 57 N. W. 952; Gould v. Insurance Co., 90 Mich. 302, 51 N. W. 455; Insurance Co. v. Heiduk, 30 Neb. 288, 46 N. W. 481; Ermentrout v. Insurance Co., 63 Minn. 305, 310, 65 N. W.

In

635, 30 L. R. A. 346. We are aware that there are decisions to the effect that conditions in respect to notice and proofs of loss may be waived by an agent, notwithstanding a provision that no agent can change the same. Those decisions are put upon the ground that such limitations on the authority of agents apply only to provisions relating solely to the formation and continuance of the policy, and which are essential to the binding force of the contract while it is running, and do not apply to conditions which are to be performed after the loss has occurred, such as giving notice and proof of loss. While we prefer to put the decision of this case on the grounds of and in line with the decisions already stated, we think that we have made it sufficiently clear that the stipulation as to notice in this policy is of the very substance of the contract in insurance of the kind here contracted for, and therefore could not be waived by any agent. The court of common pleas erred in rendering judgment for the defendants in error upon the conceded facts, and the circuit court erred in affirming the judgment of the court of common pleas. The judgments of both courts are reversed, and the judgment is for plaintiff in error.

(176 Mass. 283) WAITE v. WORCESTER BREWING CO. et al. (CITY OF WORCESTER, Inter

vener).

(Supreme Judicial Court of Massachusetts. Worcester. June 5, 1900.) CORPORATIONS- RECEIVERS TAXES PREFERRED CLAIM-APPEAL-AGREED

FACTS-REVIEW.

1. Under St. 1897, c. 400, providing that, in the settlement of estates by receivers, claims for all taxes assessed by the commonwealth, or any county, city, or town therein, shall be entitled to priority, a claim for taxes assessed against an insolvent corporation should be paid as a preferred claim by its receiver.

2. Where a justice's report showed that a receiver stated and all parties agreed that he had more than enough funds in his hands to pay certain claims, and by agreement the case was submitted on such report, the question that the funds were in the hands of a commissioner appointed to make a sale of insolyent's property, rather than in the receiver's hands, cannot be raised on appeal.

Appeal from superior court, Worcester county; John H. Hardy, Judge.

Action by Albert H. Waite, as trustee, against the Worcester Brewing Company and others, in which the city of Worcester intervened. Judgment ordering the receiver of defendant corporation to pay taxes to the city, as a preferred claim, and certain defendants appeal. Affirmed.

W. S. B. Hopkins, F. B. Smith, and W. S. B. Hopkins, Jr., for appellants. A. P. Rugg and E. I. Morgan, for respondent city of Worcester.

MORTON, J. Assuming, without deciding, that the appellants, the exchange company

and the cooperage company, have a locus standi, we do not see why the whole matter is not disposed of by St. 1897, c. 400, which took effect in April, 1897, and which expressly provides that: "In the settlement of estates by receivers the following claims shall be entitled to priority and to be first paid in their order: First, all debts due to the United States and all debts due to and taxes assessed by this commonwealth or by any county, city or town therein." It is alleged in the petition of the city of Worcester that the property of the brewing company in the hands of the receiver was duly assessed in 1898 for taxes amounting at the date of the filing of the petition for leave to intervene to $2,276.10, and that there was also then due the city for water furnished said company $394.62. In the report of the presiding justice it is said that all facts alleged in the petition were admitted at the hearing to be true, and that it was stated by the receiver, "and agreed to by all parties, that there were much more than enough funds in his hands to pay the claims set out" in the intervening petition of the city of Worcester. A question was raised at the argument before us, and appears upon the brief of the appellants, whether the funds were in the hands of the receiver, or were in the hands of a commissioner appointed by the court to make sale of the property of the brewing company. There was also a question raised by the appellants, likewise appearing in their brief, as to the decree under which the commissioner was authorized to make sale. But afterwards it was agreed in writing between the appellants and appellee that the case should "be submitted to the supreme judicial court upon the report and briefs heretofore filed." As we understand the position of the case, therefore, the question is whether, upon the facts stated in the report of the presiding justice and in the intervening petition of the city of Worcester, the decree was right. We think that, under the statute referred to, the presiding justice was clearly right in ordering the taxes to be paid as a preferred claim. The city has not appealed from the decree, and the question whether the water rates should also be allowed as a preferred claim is not, therefore, before us, though it would seem that they are covered by the statute. Decree affirmed.

(176 Mass. 290)

COMMONWEALTH v. DANZIGER. (Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

STATUTORY OFFENSE-SUFFICIENCY OF COMPLAINT CONSTITUTIONAL LAW POLICE POWER REGULATION OF PAWNBROKERS CLASS LEGISLATION.

1. In a prosecution for carrying on the businesss of pawnbroker without a license, a complaint in the language of the statute is sufficient.

2. It being within the police power of the legislature to regulate the business of pawnbrokers, a statute requiring pawnbrokers in cities

or towns of 10,000 inhabitants or more to pay a license is not unconstitutional because not applying to all citizens of the commonwealth. since such statute applies to all citizens simi larly circumstanced.

Appeal from superior court, Suffolk county.

Max Danziger was charged with carrying on the business of a pawnbroker without a license, and from an order overruling a motion to quash the complaint he appeals. Affirmed.

Robert Levi, for appellant. M. J. Sughrue, Asst. Dist. Atty., for the Commonwealth.

MORTON, J. 1. The offense is created by statute, and the complaint charges the offense in the words of the statute. As a general rule, it is sufficient in such cases to charge the offense in the words of the statute. Com. v. Hodgkins, 170 Mass. 197, 49 N. E. 97; Com. v. Prescott, 151 Mass. 60, 23 N. E. 729. We can see no reason for departing in the present case from the general rule, and think that the complaint is clearly sufficient.

2. The statute was enacted under and by virtue of what is termed the "police power"; that is, the power to make and establish all manner of wholesome and reasonable laws and statutes for the good and welfare of the commonwealth. It is not necessary that statutes passed in the exercise of that power should apply equally and uniformly to all citizens of the commonwealth, in order to be constitutional. It is sufficient if they apply equally and uniformly to all who are similarly circumstanced, and are not otherwise objectionable. Such statutes have been upheld as constitutional in numerous instances. In re Goddard, 16 Pick. 504; Inhabitants of Watertown v. Mayo, 109 Mass. 315, 318, and cases cited; Com. v. Roberts, 155 Mass, 281, 29 N. E. 522, 16 L. R. A. 400; Com. v. Parks, 155 Mass. 531, 30 N. E. 174; Opinion of Justices, 163 Mass. 589 (In re House Bill No. 1,230) 40 N. E. 713; Cole v. Tucker, 164 Mass. 486, 41 N. E. 681, 29 L. R. A. 668; Newton v. Joyce, 166 Mass. 83, 44 N. E. 116; Com. v. Morris (Mass.) 56 N. E. 896. We see nothing in the present case that renders the statute under which this complaint was instituted unconstitutional in any other respect. There can be no doubt about the right of the legislature to regulate the business of pawnbrokers, or of persons engaged in the kind of business described in the statute under which this complaint is brought. Neither can there be any doubt as to its right to limit such regulations to persons carrying on such business in cities and towns of 10,000 inhabitants or more. The effect may be to compel persons carrying on the business in cities or towns of 10,000 inhabitants or more to pay a li cense which persons engaged in the busi ness in cities or towns of less than 10,000

inhabitants are not obliged to pay, but that does not render the statute unconstitutional. Order overruling motion to quash affirmed. Verdict to stand.

(176 Mass. 246)

CAMPBELL v. ABBOTT. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1900.) NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. Plaintiff entered a building in which he had never been before to call on a person who lived therein, and while attempting, in the darkness, to find his way to such person's apartments, fell down a flight of stairs, and was injured. He did not ring or knock, or in any way attempt to attract the attention of the occupants of the building. Held, he was guilty of contributory negligence.

Exceptions from superior court, Suffolk county; John H. Hardy, Judge.

Action by Michael J. Campbell against Lewis F. Abbott to recover for injuries. From a judgment in favor of defendant, plaintiff brings exceptions. Exceptions overruled.

Jos. O. Burdett and F. M. Forbush, for plaintiff. Charles R. Elder, for defendant.

LATHROP, J. We find it unnecessary to consider the numerous questions which arise in this case, as a majority of the court is of opinion that the plaintiff was not in the exercise of due care. He entered a building where he never had been before, without knocking or ringing a bell. He found himself in darkness, and instead of waiting where he was, and endeavoring to attract the attention of the family, or retreating, he chose to try to find his way, and while so doing fell down the cellar stairs. The case differs from Parker v. Barnard, 135 Mass. 116, where a policeman entered a building in the nighttime, in the discharge of his duty, and was injured by falling down an elevator well, which was left unguarded in violation of a statute. It differs, also, from Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 L. R. A. 640, where a letter carrier, also in the discharge of his duty, in attempting to enter a building in the nighttime, mistook an unguarded elevator well, which opened upon the street, for the main entrance to the building, and stepped into it, and was injured. Exceptions overruled.

(176 Mass. 280)

GRAVES v. ADAMS EXP. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

CARRIERS-EVIDENCE-LIMITATION OF LIABILITY-VALUE OF GOODS. Plaintiff sent many packages by express, blank receipts therefor being kept in his office. He shipped goods with and without expressed valuation, and was aware that an increased rate was charged when the value exceeded $50, and that merchandise was valued at $50 unless other

value was expressed. He gave instructions to ship the goods in question, but said nothing as to their value. He saw the express receipt, corrected an error in its date, and found no other fault with it, and on the same day shipped other packages in the same manner. The charges on the goods in question were to be collected from the consignee; the receipt being the usual receipt, containing a limitation of the carrier's liability. Held, that no recovery could be had against the carrier for loss of the goods in excess of the value limited; such evidence showing that plaintiff had knowledge of the limitation, and assented thereto.

Exceptions from superior court, Suffolk county; Franklin G. Fessenden, Judge.

Action by John L. Graves against the Adams Express Company for the loss of unvalued goods shipped under a receipt limiting defendant's liability in such event to $50. Defendant deposited such sum in court for plaintiff, and from a judgment exempting defendant from further liability plaintiff brings exceptions. Overruled.

Arthur H. Russell, for plaintiff. Dabney, for defendant.

L. S.

MORTON, J. It appeared at the trial, from the plaintiff's testimony, that he had been in business for many years, and had been in the habit of sending, year in and year out, quite a large number of packages by express; that, when he delivered goods to defendant's messengers, they always gave the regular receipt for them; and that blank receipts were kept in his office, and when he got out of them the messenger was notified, and more would be left. He further testified that he had shipped goods on valuations and without valuations, and that he was aware that when the value was more than $50 the charge for transportation was increased, and was also aware of the clause valuing the merchandise at $50 unless another value was expressed. He also testified that he gave his clerk instructions as to the shipping of the paintings, but did not say anything to her about the value, or give her any value; that he must have known when the messenger took the box away, although his memory was not clear; and that the receipt was brought to him late in the day by the clerk, and, noticing an error in the date, he corrected it by writing the true date over it, but found no other fault with it, and gave it back to the clerk to put on file. As tending still further to show his familiarity with the valuation clause in the receipt, it appeared from his testimony that he generally filled out the receipts in which a valuation was given, and on the same day on which the paintings were shipped he shipped several other packages, the receipts for which were filled out by him, and contained valuations. There was likewise testimony from him tending to show that when a valuation was put into the receipt he prepaid the freight, but that in this instance the freight to be collected from the consignee. There was no claim that the receipt which

was

the plaintiff got differed, as a blank, from the other blanks of the defendant company which the plaintiff was accustomed to use.

We think that upon these facts, which are undisputed, the plaintiff must be held to have assented to the limitation of the defendant's liability contained in the receipt. It is settled in this state, at least, that a common carrier may limit its liability in case of loss by stipulations concerning the value of the property which it undertakes to convey. Graves v. Railway Co., 137 Mass. 33; Hill v. Railroad Co., 144 Mass. 284, 10 N. E. 836; Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 14 L. R. A. 433. The only qualification is that the stipulation shall be brought home to the knowledge of the shipper under such circumstances that his assent to it can fairly be assumed to have been given. And, if he accepts and acts upon it without dissent, he will be presumed to have agreed to it. Cox v. Railroad Co., 170 Mass. 129, 49 N. E. 97.

It appeared at the trial that the words, "Value asked, and not given," had been stamped on the receipt. There was testimony tending to show that this was done by the messenger without the knowledge or consent of the plaintiff. The plaintiff testified that, if the value had been asked, he would have given it. But assuming that the words were not on the receipt when it was handed to the plaintiff by his clerk, and that they were not stamped on it with his knowledge or consent, and that the value was not asked, it would follow that the plaintiff was content to accept a receipt which contained no valuation, and to let the paintings go without giving a valuation. The stamping of the words upon the receipt did him no harm, therefore, and was an entirely immaterial circumstance, even though, if he had been asked, he would have given the value. The messenger was not required to ask the value, and, in the absence of any dissent from the terms of the receipt, we think that the plaintiff was bound by them. Exceptions overruled.

(176 Mass. 285)

DOHERTY v. ANCIENT ORDER OF HI-
BERNIANS WIDOWS' & OR-
PHANS' FUND.

(Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

INSURANCE-BENEFICIAL ASSOCIATIONS-SUB

STITUTED CERTIFICATE-INVALID DESIGNATION OF BENEFICIARY-RECOVERY BY ESTATE EFFECTUAL SUBSTITUTION.

Where a benefit certificate providing for payment to a beneficiary who had no insurable interest in the member's life, if living, and, if not, to the heirs at law of the member, was substituted for a certificate previously issued in the same terms, except that a different beneficiary was named, who had since died, a recovery may be had on the substituted certificate by the executrix of the member, though the designation of the beneficiary was invalid, since such desig

nation was as though no designation was made, and the substitution was effectual as between the member and the association.

Exceptions from superior court, Suffolk county; John Hopkins, Judge.

Action by Mary Doherty, executrix of the will of Felix Gallagher, against the Ancient Order of Hibernians Widows' & Orphans' Fund, to recover on a certificate of insurance. There was a judgment for defendant, and plaintiff brings exceptions. Sustained.

Geo. W. Anderson, for plaintiff. John W. Corcoran and W. B. Sullivan, for defendant.

MORTON, J. There were two certificates issued in this case,-the first bearing date November 12, 1895; and the second, June 15, 1897. Both were issued to Felix Gallagher, and were in all respects the same, except in regard to the dates and the names of the beneficiaries. In the first Rose Gallagher, a sister of Felix, was named as the beneficiary. She died, and at the request of Felix that certificate was taken back by the defendant, and another was issued, in which Michael J. Quinn was named as beneficiary, Gallagher paying the fee required by the change. The declaration is upon the second certificate, and the action was originally brought in the name of Quinn. It appeared at the trial, however, that Quinn was not a relative or dependent of Felix Gallagher, and the writ was amended by striking out the name of Quinn, and inserting that of Mary Doherty, executrix of the will of Felix Gallagher. Each certificate bound the defendant to pay, in 60 days after due proof of the death of Felix Gallagher, to the beneficiary, "if living, if not to the heirs at law of said member, a sum equal to the amount received from one death assessment, not to exceed one thousand dollars." There was evidence tending to show that due proof was made of Felix Gallagher's death, and that a death assessment exceeded $1,000. The court directed a verdict for the defendant, and the case is here on plaintiff's exceptions.

If Michael J. Quinn had been designated as the beneficiary in the first certificate, and no other certificate had been issued, it is clear that the invalid designation would not have affected the right of the executrix to recover. Elsey v. Association, 142 Mass. 224, 7 N. E. 844; Rindge v. Association, 146 Mass. 286, 15 N. E. 628; Burns v. Grand Lodge, 153 Mass. 173, 26 N. E. 443; Shea v. Association, 160 Mass. 289, 35 N. E. 855. And, if the second certificate was effectually substituted for the first, we do not see why an invalid designation in that should have any different effect from what it would have had in the other. The question, then, is whether there has been an effectual substitution. It was assumed in Golden Cross v. Merrick, 163 Mass. 374, 40 N. E. 183, that in case of an effectual substitution an action

would lie upon the later certificate. It is not necessary, we think, that, in order to entitle a party to recover upon a later certificate, it should appear that the substitution was effectual for all purposes. It is sufficient if it appears that it was effectual in respect to the right that is asserted. A substitution may be effectual as between the member and the corporation or association that would be ineffectual as between beneficiaries. In the present case the action is brought by the executrix of the member. There is no question between beneficiaries involved. The designation contained in the certificate being invalid, the certificate is to be taken as if it contained no designation whatever; in other words, as an agreement to pay the heirs at law of the member, in 60 days after due proof of his death, a sum equal to the amount received from one death assessment not exceeding $1,000. The certificate did not create a new obligation. It was issued in respect to the same obligation as that in respect to which the first was issued; and, as between Felix Gallagher and the defendant, we do not see why there was not an effectual substitution of the second certificate for the first. We think therefore, that the exceptions should be sustained. So ordered.

(176 Mass. 287)

HURLBURT v. FITZPATRICK et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

VENDOR AND PURCHASER -WRITTEN CONTRACT-CONDITIONS-WAIVER PURCHASE MONEY FORFEIT — STATUTE OF FRAUDSEXTENSION OF TIME CONSIDERATION AGREEMENT.

1. Where a vendor agrees in writing to sell lands, and, on the vendees' being unable to comply with the contract, a written modification is made, whereby the vendees are to pay less, and the vendor is to convey subject to a mortgage, and it then develops that there are two outstanding mortgages, and on being presented with the deed and discharges of the two mortgages the vendees request that the mortgages be extended, and afterwards request further time for themselves, the request for the extension of the mortgages is a waiver of the vendees' excuse for nonperformance that there were two mortgages instead of one, and such excuse cannot be urged as a defense to the vendor's action for a forfeit payable on the vendees' default.

2. Where a vendor agrees in writing to sell land, and the vendees deposit part of the purchase price with a third person, and, on being unable to comply with their agreement, secure an extension of time, agreeing orally that, if they make further default, the money so deposited shall be paid to the vendor as a forfeit, and they do make default, the oral agreement is not void, as within the statute of frauds, and the depositary is liable for the money at the suit of the vendor.

3. Where, in consideration of a further extension of time to enable vendees to comply with their contract of purchase, they agree that if they finally default a deposit of purchase money then in the hands of a third person shall be paid to the vendor as a forfeit, the extension of time is a sufficient consideration for such agreement, so as to sustain a suit by the vendor against the depositary to recover the deposit

on the vendees' default, the depositary holding it thereafter as money had and received to the vendor's use.

Exceptions from superior court, Suffolk county.

Action for money had and received by Bezy Hurlburt against John B. Fitzpatrick, Mark Lewis, and Morris Bravman. From a judgment in favor of plaintiff, defendants Lewis & Bravman bring exceptions. Affirmed.

F. R. Rogers, for plaintiff. E. A. McLaughlin and J. A. Brett, for defendants.

MORTON, J. The plaintiff entered into a written agreement dated December 7, 1898, with one Mark Lewis, acting for himself and one Morris Bravman, to sell and convey to said Lewis certain land therein named, on certain terms therein set forth. The deed was to be delivered January 7, 1899. The $500 which is the subject of this suit was deposited by said Lewis & Bravman in the hands of the defendant Fitzpatrick as part of the purchase price, and was to be paid over by him to the plaintiff at the expiration of 30 days. Lewis & Bravman were unable to carry out this agreement, and on January 11, 1899, another written agreement was entered into between the plaintiff, acting by her attorney, and Lewis & Bravman, modifying the terms of the first agreement, and extending the time of performance to February 1, 1899. By this agreement, if Lewis & Bravman were unable to carry out the agreement of December 7th, they were to pay $2,000, and give a second mortgage of $12,072, and the plaintiff was to convey subject to a mortgage held by one Miss Pope. As a matter of fact, it turned out that Miss Pope held two mortgages, both overdue. If Lewis & Bravman were unable to perform the contract as thus modified, then Mr. Fitzpatrick was to pay over to the plaintiff, after February 1st, the deposit held by him. February 1st the plaintiff appeared by her attorney, at the time and place agreed on, with a deed running to Lewis, as he had requested, and conveying the property, subject to the two mortgages, to Miss Pope, and Lewis & Bravman were informed at or about the same time that he (the attorney) had discharges of these mortgages ready for them. There was no objection to the form of the deed. Lewis & Bravman were unable to perform their agreement at this time, and asked plaintiff's attorney to wait, and he agreed to do so, and on the following day they requested him to procure an extension of the two Pope mortgages, which he did, and submitted the extension to the attorney of Lewis & Bravman, who approved it, and it was then executed, acknowledged, and delivered to plaintiff's attorney by Miss Pope. Afterwards, Lewis & Bravman asked the attorney of the plaintiff to wait till March, and he agreed to wait till March 1st; Lewis & Bravman saying that if they were not ready they authorized Mr. Fitzpatrick to pay over the money. On