(145 N.E.)

cember 27, 1922, the stock was sold by a licensed auctioneer to the defendant corporation which was the highest bidder. The plaintiff did not receive any of these communications sent by the defendant and knew nothing about the forgeries or use made of his stock until his return in the spring of 1923. Upon learning of its unauthorized use, the plaintiff made demand upon the defendant for its return, which demand was refused. The defendant acted in good faith at all times and had no knowledge of wrong doing or want of genuineness in any of the signatures until it received notice from the plaintiff in the spring of 1923. It was agreed that there was a general business custom among brokers and bankers, that certificates of stock indorsed in blank are regarded as bearer certificates passing by delivery from hand to hand and are considered negotiable. The case was reported to this court with a stipulation that if the facts did not, as matter of law, warrant a finding for the plaintiff, judgment is to be entered for the defendant; otherwise for the plaintiff in a specified sum.

[1] The loan which the defendant undertook to make was to the plaintiff, who was the true owner of the stock, and not to Chamberlain, to whom the stock had been entrusted. The defendant made the check for the loan to the plaintiff's order and accepted for this the forged note and collateral agreement with the certificates of stock. The delivery of the stock, under these circumstances, was not a pledge. "It was an integral part of a criminally void transaction and can stand on no better ground than the rest of it." Sherman v. Connecticut Mutual Life Insurance Co., 222 Mass. 159, 162, 110 N. E. 159, 160.

This case is to be distinguished from those in which "the owner of stock knowingly places in the hand of another the certificate therefor, either indorsed in blank or by a separate instrument of transfer and power of attorney" in which it is held that "the person to whom the certificate and instrument are delivered can pass a good title by delivery or pledge regardless of the relations between him and the owner. This is not on the ground that the certificate becomes a negotiable instrument, but on the ground of estoppel, because the owner, having given another such indicia of title as clothes him with the appearance of ownership, is precluded from setting up title in himself as against a holder in good faith." Baker v. Davie, 211 Mass. 429, 436, 97 N. E. 1094, 1095 (37 L. R. A. [N. S.] 944); Scollans v. Rollins, 179 Mass. 346, 60 N. E. 983, 88 Am. St. Rep. 386; Russell v. American Bell Telephone Co., 180 Mass. 467, 62 N. E. 751.

[2, 3] Furthermore, the delivery of the certificates of stock by Chamberlain to the defendant not having been authorized, the

plaintiff may reclaim them because the defendant is not a holder for value. G. L. c. 155, 33. No value passed to the plaintiff; and the defendant's bank, which had the duty of determining whether the signature of the payee was genuine, paid the check, not as ordered by the defendant, but upon a forged indorsement. Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, 187 N. E. 740, 22 L. R. A. (N. S.) 250. If the custom stated in the report, as to certificates of stock indorsed in blank being regarded as bearer certificates passing by delivery from hand to hand and being considered negotiable, is good-a question we do not decide-it cannot affect the rights of an owner, in case of an unauthorized transfer of his stock, to recover it from one who has paid the owner no value for it, and who received it to secure payment of the owner's forged note.

[4, 5] The sale of the stock by the defendant at public auction and the delivery to itself as owner, when the defendant's only pretext of a right to make a sale was under a forged agreement and invalid pledge, are sufficient exercise of dominion to make the acts a conversion. Varney v. Curtis, 213 Mass. 309, 100 N. E. 650, L. R. A. 1916A, 629, Ann. Cas. 1914A, 340. No demand is necessary in a case where a defendant having no title to personal property exercises dominion over it. Lancaster v. Stanetsky, 221 Mass. 312, 108 N. E 1060. But the plaintiff made a demand for the return of the certificates after the defendant had purchased them at auction sale. DeYoung v. Frank A. Andrews Co., 214 Mass. 47, 100 N. E. 1080. The finding for the plaintiff was warranted.

In accordance with the terms of the report, judgment is to be entered for the plaintiff in the sum of $529.75 with interest from December 29, 1923. So ordered.

CAMBRIDGE MOTOR CO. v. ESTABROOK. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 26, 1924.)

I. Sales 88-Whether delivery of tractor and payment were concurrent, and whether title passed, held for jury.

On conflicting evidence as to whether there was completed sale of tractor, or whether there was to be no sale unless seller executed con

ditional agreement or lease, which he refused to do, questions whether title passed under G. L. c. 106, § 6, and whether delivery and payment were concurrent conditions, under G. L. c. 106, §§ 30, 31, held for jury.

2. Witnesses 406-Form of lease offered to contradict witness rightly excluded.

Where defendant testified he had refused to sign lease, and none had been given, and plaintiff's witness testified that, when bargain for tractor was struck, defendant said he would pay for it probably in cash, or, if not, he would

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-30

buy on lease, there was no error in excluding form of lease offered on cross-examination to contradict witness; it forming no part of contract, especially when not shown to be of same purport.

3. Appeal and error 205, 692(I)-Prejudice by exclusion of evidence not shown, in absence of offer or showing as to expected an

swer.

Excluding conversation is not shown to be prejudicial, where it does not appear what answer was expected, and no offer of proof was made.

[2] The plaintiff's vice president and treasurer having testified that, when the bargain was struck, the defendant said. "I will pay for it probably in cash, and if not I will pay for it as I do my cars," which he had always bought on a lease, he was shown a lease in cross-examination, and, in reply to the question, "Look at that paper and see whether it was not the usual form of lease," answered, "That looks like the lease." The defendant then offered the paper to contradict the witness. It was excluded rightly. The defendant had testified, and his evidence

Exceptions from Superior Court, Suffolk was not contradicted, that he had refused to County; R. W. Irwin, Judge.

sign a lease and that no lease had been giv

The lease and notes left with the de

fendant by the plaintiff's agent formed no part of the alleged contract, and the form of lease offered was moreover not shown to be of the same purport.

Action of contract by the Cambridge Mo-en. tor Company against Harry F. Estabrook to recover price of tractor, equipment, and pulley. Verdict for plaintiff. Submitted on defendant's exceptions. Exceptions overruled. John J. Enright and Howard M. Dowd, both of Boston, for plaintiff.

W. F. Porter, Geo. A. Douglass and John J. Butler, all of Boston, for defendant.

BRALEY, J. [1] This is an action of con

[3] The exclusion of a conversation, which a witness for the defendant had with two of the plaintiff's witnesses, is not shown to have been prejudicial. It does not appear what answer was expected, and no offer of proof was made. Goldsmith v Traveler

tract for the price of a Ford tractor and pul- Shoe Co., 236 Mass. 111, 116, 127 N. E. 606.

Exceptions overruled.

PIETRZYKOWSKI et al. v. LEGAULT
HOUSING CORPORATION et al.
(Supreme Judicial Court of Massachusetts.
Bristol. Dec. 3, 1924.)

1. Appeal and error 694(1) — Finding of
master must stand, where evidence unre-
ported.

Findings by master must stand, where evidence before him was not reported.

2. Mortgages 257-Assignees taking construction mortgages with knowledge thereof could rely on security for sums actually advanced to contractor in good faith.

ley. The defendant, who owned and cultivated a large farm, went to the plaintiff's place of business and directed it to send to the farm a "demonstrating tractor" The tractor was sent, and a demonstration was given. The evidence was conflicting whether a completed sale for a new tractor followed as the plaintiff claimed, or whether as the defendant contended, there was to be no sale unless he executed a conditional agreement or lease, and that, having refused, no title passed. The jury would have been warranted in finding on the testimony introduced by the plaintiff, that the defendant expressed satisfaction with the work of the demonstrating tractor, and ordered, accepted and received a tractor which with the pulley was delivered at the farm. The jury also could find, that he agreed to pay the price either in Where assignees knew that mortgages were cash, or "by a down payment and sign a given to contractor as construction mortgages. lease," with promissory notes payable in in- but had no knowledge of contract price of stallments, and although the defendant re-building or time when contract was to be comfused to sign a lease, yet he continually prom-pleted, and there was no fraud or bad faith. ised in reponse to the plaintiff's demands to make full payment, but finally repudiated the sale, and, the market price having appreciably declined, bought a "secondhand Case tractor" It is plain that a verdict for the defendant could not have been ordered; nor could rulings have been given, that the title had not passed, and that there was no acceptance of the property within the meaning of G. L. c. 106, § 6. The plaintiff had delivered the property, and it was for the jury to determine whether delivery and payment were concurrent conditions Haskins v. Warren, 115 Mass. 514; Schmoll Fils Co. v. Wheeler, 242 Mass. 464, 469, 136 N. E. 164; G. L. c. 106, §§ 30, 31.

assignees could, in view of G. L. c. 107, § 75. rely on security of mortgages for amounts actually advanced by them to contractor, unaffected by equities of mortgagor against con

tractor.

3. Mortgages

311-Wife held proper party to petition to discharge mortgages.

Where plaintiff's wife was party to contract to construct house on land owned by her husband and her, she was a necessary party to suit to discharge construction mortgages.

Appeal from Superior Court, Bristol County; H. T. Lummus, Judge.

Bill in equity by Jozef Pietrzykowski and others against the Legault Housing Corpora

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

(145 N.E.)

tion and others, to restrain defendants from transferring or assigning mortgages and notes, and to secure discharge of mortgages on payment of amount due thereon as court determined. From a decree directing plaintiff to pay certain amounts to defendants plaintiffs appeal. Affirmed.

Asa Auger & Son, of New Bedford, for plaintiffs.

H. A. Lider, of New Bedford, for defend

ants.

found as follows: When the mortgage was assigned to Davis a separate agreement was entered into between him and the contractor concerning advancements to be made under the mortgage, and it was therein stipulated that Davis should advance money on the security of the assignment at six different stages of the construction of the building; that he advanced $696 to the contractor on the date of the assignment, and later, $1,500 while the work was being performed; that the Acushnet Sawmills Company, for whose security Hawes took the assignment of the second mortgage, furnished lumber and materials to the contractor on the premises of the plaintiffs to the value of $2,043.73, most of which was used in the construction of the building.

CROSBY, J. The plaintiffs, on July 31, 1922, entered into a written contract with the Legault Housing Corporation, under which the latter was to construct a two family house on land owned by the plaintiffs. We assume that under the contract the defendant corporation was to furnish the mate- The master further found that when the rials required, although it is not expressly mortgages were assigned. Davis and Hawes so specified. No time was fixed for the com- knew that the assignments were given to the pletion of the work. The contract provided contractor as construction mortgages, but that the plaintiffs should pay the corporation that neither had knowledge of the contract the sum of $7,500 in the following manner: price or the time when the contract was to $760 by a certificate of the same amount of be completed. He also found that there was the preferred stock of the defendant corpono evidence either of fraud or bad faith on ration; and the balance by two mortgages the part of Davis or Hawes or on the part of on the real estate, the first to be in the sum the plaintiffs. Upon these findings it is of $4,500, dated July 31, 1922, for a term manifest that Davis and Hawes are entitled of three years, with interest at 61⁄2 per cent. to rely upon the security of the mortgages per annum, payable quarterly, with $50 to be for the amounts actually advanced by them paid on the principal on each interest day; in good faith, unaffected by any equities in the second mortgage to be for $2,240 for a favor of the plaintiffs against the contractor. term of three years with interest at 7 per G. L. c. 107, § 75; New England Trust Co. v. cent., payable monthly, and a payment at New York Belting & Packing Co., 166 Mass. least of $22.50 on the principal on each in- 42, 43 N. E. 928; Burnes v. New Mineral terest day. Fertilizer Co., 218 Mass. 300, 105 N. E. 1074; The first of these mortgages, on September | Paike v. Perry, 225 Mass. 563, 567, 568, 114 8, 1922, and before any interest or payment N. E. 830; Reynolds v. Park Trust Co., 245 on account of principal became due, was Mass. 440, 139 N. E. 785. assigned by the contractor, with the note which it secured, to the defendant Davis. The second mortgage was assigned by the contractor to the defendant Hawes on September 20, 1922, who took it on behalf of the Acushnet Sawmills Company, of which he was an officer. The prayer of the bill, so far as it relates to the defendants Davis and Hawes, is that they be ordered to discharge the mortgages held by them respectively on payment to them of such amounts as the court may determine. The case was referred to a master whose report has been confirmed; and a final decree has been entered directing the payment by the plaintiff Jozef to Davis and to Hawes of certain amounts respectively; upon such payments the holders are directed to discharge the mortgages.

[1, 2] The findings made by the master must stand as the evidence before him is not reported. He found that the defendant corporation is bankrupt and that its stock has no cash value; that on November 11, 1922, the contractor ceased work on the house and that it has not been completed. Respecting the mortgages above referred to the master

The contention of the plaintiffs that there was a failure of consideration as to the defendants Davis and Hawes is without merit.

The plaintiffs made eleven requests, some of them are in effect for findings of fact; so far as they are requests for rulings of law, it is plain that they could not properly have been given. The finding of the master that there was no evidence of either fraud or bad faith on the part of Davis or Hawes was justified by the subsidiary findings made, and they cannot be reviewed in the absence of a report of the evidence. The contention that the plaintiffs were entitled to an allowance for loss of rent cannot be sustained; they are not entitled to have an allowance for loss of rent deducted from the amounts found due to Davis and Hawes, which they advanced in good faith on the strength of the security held by them.

[3] The plaintiff's wife, Florentena Pietrzykowski, was a party to this contract and is a necessary party to this suit. A motion that she be made a party plaintiff, assented to by the defendant's counsel, was filed in the superior court but has not been allowed. Ac

5. Municipal corporations 821 (23)-Negll-condition of said sidewalk and ice having formed gence of pedestrian having knowledge of stump in sidewalk held for jury.

[1] Under G. L. c. 84, § 18, the notice is not invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if there was no intention to mislead and the defendant was not in fact misled thereby. The burden of proof is on the plaintiff to show that there was no intention to mislead and that the defendant was not misled by the notice. Bowes v. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365; Tobin v. Brimfield, 182 Report from Superior Court, Middlesex Mass. 117, 65 N. E. 28; McCarthy v. StoneCounty; E. B. Bishop, Judge. ham, 223 Mass. 173, 111 N. E. 698.

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

(145 N.E.)

[2] We are of opinion that upon the testimony and the reasonable inferences to be drawn therefrom, the jury would have been justified in finding that there was no intention on the part of the plaintiff to mislead the defendant and that it was not in fact misled. A witness called by the plaintiff testified that soon after the accident he went with the defendant's superintendent of streets and his foreman to where it occurred, and showed them the place where he picked the plaintiff up after she fell "right beside the stump." A verdict for the defendant could not rightly have been directed on the ground that the notice was insufficient. Conners v. Lowell, 158 Mass. 336, 33 N. E. 514; Fuller v. Hyde Park, 162 Mass. 51, 37 N. E. 782; Carberry V. Sharon 166 Mass. 32, 43 N. E 912; Winship v. Boston, 201 Mass. 273, 275, 87 N. E. 600

We need not decide whether the notice would have been sufficient before the enactment of St. 1882, c. 36, and St. 1888, c. 114, now embodied in G. L. c. 84, § 18. See Shea v. Lowell, 132 Mass. 187; McDougall v. Boston, 134 Mass. 149; Cronin v. Boston, 135 Mass. 110; Roberts v. Douglas, 140 Mass. 129, 2 N. E. 775, and other cases relied on by the defendant.

[3] It is contended by the defendant that there was a variance between the notice and the evidence as to the cause of the injury, which is fatal to the plaintiff's case. The notice recites that the plaintiff's fall was due to a defective condition of the sidewalk and ice formed thereon. She testified that her foot struck against the root of the stump and then she slipped on the ice and fell. It is plain that it could not have been ruled that there was a variance, as the defendant contends.

[4] The allegations of negligence in the declaration are that the plaintiff was injured by slipping upon ice which had accumulated in a hollow in the sidewalk near the stump of the tree. G. L. c. 84, § 17, provides that a town is not liable for an injury or damage sustained in a public way by reason of snow or ice thereon, "if the place at which the injury or damage was sustained was at the time of the accident otherwise reasonably safe and convenient for travelers." This statute was construed in Newton v. Worcester, 174 Mass. 181, and at page 187, 54 N. E. 521, 523, it was said by Hammond, J.:

"We think the proper and only reasonable interpretation of the statute is, that wherever ice or snow is the sole proximate cause of the accident, there shall be no liability, but where at the time of the accident there is any other defect to which as a proximate cause the accident is in part attributable, there may be a liability notwithstanding the fact that it also may be attributable in part to ice or snow."

In the case at bar there was evidence that the accident was partly due to ice as a proximate cause, and that the stump or root near the edge of the walk, against which the plaintiff struck her foot and fell, was a defect to which the accident was in part attributable. In these circumstances the defendant may be held liable. Fuller v. Hyde Park, supra; McCabe v. Whitman, 187 Mass. 484. 73 N. E. 535, Neilson v. Worcester, 219 Mass. 88, 106 N. E. 579, 3 A. L. R. 1120.

[5] The testimony of the plaintiff that she knew of the stump, and knew of the depression in the sidewalk but forgot about it and did not look for it the morning of the accident, is not necessarily a bar to recovery. Although such knowledge on her part was evidence for the jury on the question of her due care, it could not be ruled as matter of law to constitute negligence. McGuinness v. Worcester, 160 Mass. 272, 35 N. E. 1068; Fuller v. Hyde Park, supra; Winship v. Boston, supra; McCarthy v. Stoneham, supra.

Gilman v. Deerfield, 15 Gray (Mass.) 577, Wilson v. Charlestown, 8 Allen, 137, 85 Am. Dec. 693, and other cases cited by the defendant, are readily distinguishable in their facts from those of the present case.

[6] The questions whether the plaintiff was in the exercise of due care, and whether the sidewalk was unsafe for traveling and the defendant knew of the defective condition or ought to have known of it and remedied it, were for the jury. The exception to the allowance of the motion that a verdict be directed for the defendant must be sustained, and in accordance with the report a new trial is granted. So ordered.

WILSON v. DANIELS.

(Supreme Judicial Court of Massachusetts. Worcester. Dec. 2, 1924.)

I. Master and servant 270 (13)-Testimony as to master's knowledge of condition of machine before injury held competent.

Knowledge of master as to condition of husking machine before employee's injury therefrom was material, and testimony of employee's wife that at her home, on afternoon of accident, master, returning from seeing emchine was all right, but it was not, was comployee at hospital, told her he thought the mapetent.

2. Appeal and error 1050(1)-Evidence

219(1)-Master's statement of intended conduct toward injured employee, and advice as to amputation of hand, held inadmissible and prejudicial.

Master's statement to wife of injured employee that he would take care of him, and not to have his hand taken off, held inadmissible and prejudicial, in view of oral argument that promise of care was admission of liability, and ad

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