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Mass.)
CAMBRIDGE MOTOR CO. Y. ESTABROOK

465 (145 N.E.) cember 27, 1922, the stock was sold by a li- | plaintiff may reclaim them because the decensed auctioneer to the defendant corpora- fendant is not a holder for value. G. L. C. tion which was the highest bidder. The 155, 8 33. No value passed to the plaintiff ; plaintiff did not receive any of these com- and the defendant's bank, which had the duty munications sent by the defendant and knew of determining whether the signature of the nothing about the forgeries or use made of payee was genuine, paid the check, not as orhis stock until his return in the spring of dered by the defendant, but upon a forged 1923. Upon learning of its unauthorized use, indorsement. Jordan Marsh Co. v. National the plaintiff made demand upon the defend- Shawmut Bank, 201 Mass. 397, 187 N. E. 740, ant for its return, which demand was re- 22 L. R. A. (N. S.) 250. If the custom stated in fused. The defendant acted in good faith the report, as to certificates of stock indorsed at all times and had no knowledge of wrong in blank being regarded as bearer certificates doing or want of genuineness in any of the passing by delivery from hand to hand and signatures until it received notice from the being considered negotiable, is good-a quesplaintiff in the spring of 1923. It was agreed tion we do not decide—it cannot affect the that there was a general business custom rights of an owner, in case of an unauthoramong brokers and bankers, that certificates ized transfer of his stock, to recover it from of stock indorsed in blank are regarded as one who has paid the owner no value for it, bearer certificates passing by delivery from and who received it to secure payment of the hand to hand and are considered negotiable. owner's forged note. The case was reported to this court with a [4, 5] The sale of the stock by the defendstipulation that if the facts did not, as mat- ant at public auction and the delivery to it. ter of law, warrant a finding for the plain- self as owner, when the defendant's only pretiff, judgment is to be entered for the de- text of a right to make a sale was under fendant; otherwise for the plaintiff in a a forged agreement and invalid pledge, are specified sum.

sufficient exercise of dominion to make the [1] The loan which the defendant under- acts a conversion, Varney v. Curtis, 213 took to make was to the plaintiff, who was Mass. 309, 100 N. E. 650, L. R. A. 1916A, the true owner of the stock, and not to 629, Ann. Cas. 1914A, 340. No demand is Chamberlain, to whom the stock had been necessary in a case where a defendant haventrusted. The defendant made the check ing no title to personal property exercises for the loan to the plaintiff's order and ac- dominion over it. Lancaster v. Stanetsky, cepted for this the forged note and collater- 221 Mass. 312, 108 N. E 1060. But the plainal agreement with the certificates of stock. tiff made a demand for the return of the cerThe delivery of the stock, under these cir- tificates after the defendant had purchased cumstances, was not a pledge. “It was an them at auction sale. De Young v. Frank A. integral part of a criminally void transaction Andrews Co., 214 Mass. 47, 100 N. E. 1080. and can stand on no better ground than the The finding for the plaintiff was warranted. rest of it." Sherman v. Connecticut Mutual In accordance with the terms of the reLife Insurance Co., 222 Mass. 159, 162, 110 port, judgment is to be entered for the plainN. E. 159, 160.

tiff in the sum of $529.75 with interest from This case is to be distinguished from those December 29, 1923. in which “the owner of stock knowingly plac So ordered. es in the hand of another the certificate therefor, either indorsed in blank or by a separate instrument of transfer and power of CAMBRIDGE MOTOR CO. v. ESTABROOK. attorney" in which it held that “the per- (Supreme Judicial Court of Massachusetts. son to whom the certificate and instrument

Suffolk. Nov. 26, 1924.) are delivered can pass a good title by delivery or pledge regardless of the relations 1. Sales Om88–Whether delivery of tractor between him and the owner. This is not on

and payment were concurrent, and whether the ground that the certificate becomes a ne

title passed, held for jury. gotiable instrument, but on the ground of es On conflicting evidence as to whether there

was completed sale of tractor, or whether there toppel, because the owner, having given another such indicia of title as clothes him ditional agreement or lease, which he refused

was to be no sale unless seller executed conwith the appearance of ownership, is preclud- to do, questions whether title passed under ed from setting up title in himself G. L. c. 106, § 6, and whether delivery and payagainst a holder in good faith.” Baker v. ment were concurrent conditions, under G. L. Davie, 211 Mass. 429, 436, 97 N. E. 1094, 1095 c. 106, 88 30, 31, held for jury. (37 L. R. A. [N. S.) 944); Scollans v. Rollins, 2. Witnesses Ow406–Form of lease offered to 179 Mass. 346, 60 N. E. 983, 88 Am. St. Rep.

contradict witness rightly excluded. 386; Russell v. American Bell Telephone Co.,

Where defendant testified he had refused 180 Mass. 467, 62 N. E. 751.

to sign lease, and none had been given, and [2, 3] Furthermore, the delivery of the cer- plaintiff's witness testified that, when bargain tificates of stock by Chamberlain to the de- for tractor was struck, defendant said he would fendant not having been authorized, the 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

as

V

buy on lease, there was no error in excluding [2] The plaintiff's vice president and treasform of lease offered on cross-examination to urer having testified that, when the bargain contradict witness; it forming no part of con was struck, the defendant said. “I will pay tract, especially when not shown to be of same for it probably in cash, and if not I will pay purport.

for it as I do my cars," which he had always 3. Appeal and error (205, 692(1)-Prejudice bought on a lease, he was shown a lease in

by exclusion of evidence not shown, in ab- cross-examination, and, in reply to the quessence of offer or showing as to expected an- tion, "Look at that paper

and see swer.

whether it was not the usual form of lease," Excluding conversation is not shown to be answered, “That looks like the lease.” The prejudicial, where it does not appear what an

defendant then offered the paper to contraswer was expected, and no offer of proof was

dict the witness, made.

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. Action of contract by the Cambridge Mo- en.

The lease and notes left with the detor Company against Harry F. Estabrook to fendant by the plaintiff's agent formed no recover price of tractor, equipment, and pul- | part of the alleged contract, and the form ley. Verdict for plaintiff. Submitted on de- of lease offered was moreover not shown to fendant's exceptions. Exceptions overruled.be of the same purport.

[3] The exclusion of a conversation, which John J. Enright and Howard M. Dowd, a witness for the defendant had with two both of Boston, for plaintiff.

of the plaintiff's witnesses, is not shown to W. F. Porter, Geo. A. Douglass and John have been prejudicial. It does not appear J. Butler, all of Boston, for defendant.

what answer was expected, and no offer of

proof was made. Goldsmith Traveler BRALEY, J. [1] This is an action of contract for the price of a Ford tractor and pul- Shoe Co.: 236 Mass. 111, 116, 127 N. E. 606.

Exceptions overruled. 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

PIETRZYKOWSKI et al. v. LEGAULT given. The evidence was conflicting whether

HOUSING CORPORATION et al. a completed sale for a new tractor followed as the plaintiff claimed, or whether as the de

(Supreme Judicial Court of Massachusetts. fendant contended, there was to be no sale un

Bristol. Dec. 3, 1924.) less he executed a conditional agreement or

1. Appeal and error Om694(1) - Finding of lease, and that, having refused, no title

master must stand, where evidence unre. passed. The jury would have been warrant

ported. ed in finding on the testimony introduced by

Findings by master must stand, where evi. the plaintiff, that the defendant expressed dence before him was not reported. satisfaction with the work of the demonstrating tractor, and ordered, accepted and re

2. Mortgages On 257-Assignees taking con

struction mortgages with knowledge thereof ceived a tractor which with the pulley was

could rely on security for sums actually addelivered at the farm. The jury also could

vanced to contractor in good faith, 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 assignees ould, in view of G. L. c. 107, § 75. make full payment, but finally repudiated the rely on security of mortgages for amounts acsale, and, the market price having appreci- tually advanced by them to contractor, unafably declined, bought a "secondhand Case fected by equities of mortgagor against con

tractor. tractor" It is plain that a verdict for the defendant could not have been ordered; nor 3. Mortgages ww311-Wife held proper party could rulings have been given, that the title to petition to discharge mortgages. had not passed, and that there was no ac Where plaintiff's wife was party to conceptance of the property within the mean-tract to construct house on land owned by her ing of G. L. c. 106, $ 6. The plaintiff had de- husband and her, she was a necessary party to livered the property, and it was for the jury suit to discharge construction mortgages. to determine whether delivery and payment were concurrent conditions Haskins v. War

Appeal from Superior Court, Bristol Counren, 115 Mass. 514; Schmoll Fils Co. v. ty; H. T. Lummus, Judge. Wheeler, 242 Mass. 164, 469, 136 N. E. 161; G. Bill in'equity by Jozef Pietrzykowski and L. c. 106, $$ 30, 31.

others against the Legault Housing CorporaFor 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 pfound as follows: When the mortgage was transferring or assigning mortgages and assigned to Davis a separate agreement was notes, and to secure discharge of mortgages entered into between him and the contractor on payment of amount due thereon as court concerning advancements to be made under determined. From a decree directing plain the mortgage, and it was therein stipulated tiff to pay certain amounts to defendants that Davis should advance money on the plaintiffs appeal. Affirmed.

security of the assignment at six different Asa Auger & Son, of New Bedford, for stages of the construction of the building; plaintiffs.

that he advanced $696 to the cortractor on H. A. Lider, of New Bedford, for defend the date of the assignment, and later, $1,ants.

500 while the work was being performed;

that the Acushnet Sawmills Company, for CROSBY, J. The plaintiffs, on July 31, whose security Hawes took the assignment of 1922, entered into a written contract with the second mortgage, furnished lumber and the Legault Housing Corporation, under materials to the contractor on the premises which the latter was to construct a two of the plaintiffs to the value of $2,043.73, family house on land owned by the plaintiffs. most of which was used in the construction We assume that under the contract the de- of the building. fendant 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 corpo- no 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 612 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 y. 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 The contention of the plaintiffs that there which it secured, to the defendant Davis. was a failure of consideration as to the deThe second mortgage was assigned by the fendants Davis and Hawes is without merit. contractor to the defendant Hawes on Sep The plaintiffs made eleven requests, some tember 20, 1922, who took it on behalf of of them are in effect for findings of fact; so the Acushnet Sawmills Company, of which far as they are requests for rulings of law, he was an officer. The prayer of the bill, so it is plain that they could not properly have far as it relates to the defendants Davis and been given. The finding of the master that Hawes, is that they be ordered to discharge there was no evidence of either fraud or the mortgages held by them respectively on bad faith on the part of Davis or Hawes was payment to them of such amounts as the justified by the subsidiary findings made, and court may determine. The case was referred they cannot be reviewed in the absence of a to a master whose report has been confirmed; report of the evidence. The contention that and a final decree has been entered directing the plaintiffs were entitled to an allowance the payment by the plaintiff Jozef to Davis for loss of rent cannot be sustained; they and to Hawes of certain amounts respective- are not entitled to have an allowance for loss ly; upon such payments the holders are di- of rent deducted from the amounts found due rected to discharge the mortgages.

to Davis and Hawes, which they advanced in [1, 2] The findings made by the master | good faith on the strength of the security must stand as the evidence before him is not held by them. reported. He found that the defendant cor [3] The plaintiff's wife, Florentena Pietporation is bankrupt and that its stock has rzykowski, was a party to this contract and no cash value; that on November 11, 1922, is a necessary party to this suit. A motion the contractor ceased work on the house and that she be made a party plaintiff, assented to that it has not been completed. Respecting by the defendant's counsel, was filed in the the mortgages above referred to the master superior court but has not been allowed. Ac

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cordingly the same is allowed by this court Action under G. L. C. 84, § 15, by Elizabeth and the case is considered on that footing. J. Naze against the Town of Hudson, to reIt results that the entry should be:

cover for personal injuries sustained by fallInterlocutory and final decrees affirmed, ing on a sidewalk. Verdict directed for de with costs.

fendant, and case reported. Exceptions susstained, and new trial granted,

J. J. Shaughnessy, of Marlboro, for plain

tiff. NAZE v. TOWN OF HUDSON.

R. E. Joslin, of Boston, for defendant. (Supreme Judicial Court of Massachusetts. CROSBY, J. This is an action under G. Middlesex. Dec, 3, 1924.)

L. C. 84, § 15, to recover for personal injuries

received by the plaintiff by reason of fall1. Municipal corporations Cm817(1)—Burden ing upon a sidewalk in the defendant town.

on plaintiff to show municipality not misled She testified that as she was going along by notice.

she struck her foot against a stump and Burden of proof is on plaintiff to show that stumbled and fell on the ice; that the ice in notice of circumstances of inju under G. L. c. 84, § 18, there was no intention to mislead, and a patch had been put over the hole;

was in a hole in the sidewalk near the stump and that city was not misled.

that the stump was about four or five inches 2. Municipal corporations w812(7)-City not higher than the sidewalk; that it was in the misled by notice of injury. Where superintendent of streets and fore- side the concrete; that a root of the stump

gravel or sand part of the sidewalk alongman, soon after accident, went to place where it occurred and were shown where plaintiff was

ran into the edge of the concrete and raised picked up, finding that notice under G. L. c. 84,

the latter; that was alongside the hole; $ 18, was not intended to mislead, and city was

that water always accumulated in this place not in fact misled thereby, held justified, and when it rained, and that sometimes after verdict for defendant could not be rightly di- a heavy rain there were three or four inches rected for its insufficiency.

of water in the hole; that at the time of the

accident there was a little snow and ice on 3. Municipal corporations Om816(11)-No va.

riance between notice and evidence as to the walk; that she had noticed the stump cause of injury.

and hole there before; that she did not look There was no variance between notice under for it that morning and did not think about G. L. c. 84, § 18, reciting that plaintiff's fall it. On redirect examination she testified was due to defective condition of sidewalk and that the stump was partly covered with snow ice formed thereon and her testimony that her which prevented her seeing it. In answer foot struck against root of a stump and then to inquiries by the presiding judge, she she slipped on the ice and fell.

testified: 4. Municipal corporations 772–Municipality "The tree itself was on the grass but the

liable for injuries, if accident partly attribu- roots extended into the sidewalk. The stump table to other defects in sidewalk than snow

was in on the concrete right in the edge of or ice.

the sidewalk. 'I struck my foot on the stump Notwithstanding G. L. c. 84, § 17, providing of the tree and stumbled and fell.'” that town is not liable for injury sustained in public way by reason of snow or ice, where The notice served on the defendant deaccidental fall was attributable in part to other scribed the cause of her injuries as follows: defect in sidewalk, municipality was liable.

"Her said fall was caused by the defective 5. Municipal corporations Cm821 (23)—Negli. condition of said sidewalk and ice baving formed

gence of pedestrian having knowledge of thereon. The condition of the said sidewalk stump in sidewalk held for jury.

was such where she fell as to cause the water That plaintiff had knowledge of stump pro

to accumulate thereon so as to make the place truding from sidewalk and knew of depression dangerous when ice formed thereon." therein, but forgot about it and did not look for it at time of accidental fall, was for jury on

[1] Under G. L. C. 84, § 18, the notice is question of her due care, and was not negli- not invalid or insufficient solely by reason gence as matter of law.

of any inaccuracy in stating the time, place 6. Municipal corporations Cm 821(15)-Wheth- or cause of the injury, if there was no in

er sidewalk was unsafe and city knew of de- tention to mislead and the defendant was fect held for jury.

not in fact misled thereby. The burden of In action for injuries from fall on sidewalk, proof is on the plaintiff to show that there whether sidewalk was unsafe for travel and de was no intention to mislead and that the fendant knew of its condition, or ought to have defendant was not misled by the notice. known of it, held for jury.

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 Indexen

a

(145 N.E.) [2] We are of opinion that upon the testi In the case at bar there was evidence that mony and the reasonable Inferences to be the accident was partly due to ice as drawn therefrom, the jury would have been proximate cause, and that the stump or justified in finding that there was no inten- root near the edge of the walk, against which tion on the part of the plaintiff to mislead the the plaintiff struck her foot and fell, was a defendant and that it was not in fact misled. defect to which the accident was in part A witness called by the plaintiff testified that attributable. In these circumstances the desoon after the accident he went with the de- fendant may be held liable. Fuller v. Hyde fendant's superintendent of streets and his Park, supra; McCabe v. Whitman, 187 Mass. foreman to where it occurred, and showed 484. 73 N. E. 535, Neilson v. Worcester, 219 them the place where he picked the plain- Mass. 88. 106 N. E. 579, 3 A. L. R. 1120. tiff up after she fell "right beside the stump." [5] The testimony of the plaintiff that she A verdict for the defendant could not right- knew of the stump, and knew of the depresly have been directed on the ground that the sion in the sidewalk but forgot about it and notice was insufficient. Conners v. Lowell, did not look for it the morning of the ac158 Mass. 336, 33 N. E. 514; Fuller v. Hyde cident, is not necessarily a bar to recovery. Park, 162 Mass. 51, 37 N. E. 782; Carberry Although such knowledge on her part was v. Sharon. 166 Mass. 32, 43 N. E 912; Win- evidence for the jury on the question of her ship v. Boston, 201 Mass. 273, 275, 87 N. E. due care, it could not be ruled as matter 600

of law to constitute negligence. McGuinWe need not decide whether the notice ness v. Worcester, 160 Mass. 272, 35 N. E. would have been sufficient before the enact- 1068; Fuller V. Hyde Park, supra; Winment of St. 1882, c. 36, and St. 1888, c. 114, ship v. Boston, supra; McCarthy v. Stonenow embodied in G. L. C. 84, § 18. See Shea ham, supra. v. Lowell, 132 Mass. 187; McDougall v. Gilman v. Deerfield, 15 Gray (Mass.) 577, Boston, 134 Mass. 149; Cronin v. Boston, Wilson v. Charlestown, 8 Allen, 137, 85 Am. 135 Mass. 110; Roberts V. Douglas, 140 | Dec. 693, and other cases cited by the deMass. 129, 2 N. E. 775, and other cases re- fendant, are readily distinguishable in their lied on by the defendant.

facts from those of the present case. [3] It is contended by the defendant that [6] The questions whether the plaintifr there was a variance between the notice was in the exercise of due care, and whethand the evidence as to the cause of the in- er the sidewalk was unsafe for traveling jury, which is fatal to the plaintiff's case. and the defendant knew of the defective conThe notice recites that the plaintiff's fall | dition or ought to have known of it and remwas due to a defective condition of the side-edied it, were for the jury. The exception walk and ice formed thereon. She testified to the allowance of the motion that a verthat her foot struck against the root of the dict be directed for the defendant must be stump and then she slipped on the ice and fell. sustained, and in accordance with the reIt is plain that it could not have been ruled port a new trial is granted.

So ordered. that there was a variance, as the defendant contends. [4] The allegations of negligence in the

WILSON V. DANIELS. declaration are that the plaintiff was injured by slipping upon ice which had accu

(Supreme Judicial Court of Massachusetts. mulated in a hollow in the sidewalk near

Worcester. Dec. 2, 1924.) the stump of the tree. G. L. C. 84, § 17, 1. Master and servant Om 270(13)–Testimony provides that a town is not liable for an in as to master's knowledge of condition of majury or damage sustained in a public way chine before injury held competent. by reason of snow or ice thereon, "if the Knowledge of master as to condition of place at which the injury or damage was husking machine before employee's injury sustained was at the time of the accident oth-therefrom was material, and testimony of emerwise reasonably safe and convenient for ployee's wife that at her home, on afternoon travelers." This statute was construed in ployee at hospital, told her he thought the ma

of accident, master, returning from seeing emNewton v. Worcester, 174 Mass. 181, and at chine was all right, but it was not, was compage 187, 54 N. E. 521, 523, it was said by petent. Hammond, J.:

2. Appeal and error cu 1050(1)-Evidence on "We think the proper and only reasonable in 219(1)-Master's statement of intended conterpretation of the statute is, that wherever ice duct toward injured employee, and advice as or snow is the sole proximate cause of the ac to amputation of hand, held inadmissible and cident, there shall be no liability, but where at prejudicial. the time of the accident there is any other de. Master's statement to wife of injured emfect to which as a proximate cause the accident ployee that he would take care of him, and not is in part attributable, there may be a liability to have his hand taken off, held inadmissible and potwithstanding the fact that it also may be prejudicial, in view of oral argument that promattributable in part to ice or snow."

ise of care was admission of liability, and adFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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