(148 N.E.)

Merchants' Legal Stamp Co. v. Murphy, 220 Mass. 281, 107 N. E. 968, L. R. A. 1915D, 520, and Commonwealth v. Dyer, 243 Mass. 472, 138 N. E. 296, are distinguishable.

of a telephone.

panies were members, were filled by different representatives of the companies except the secretary and treasurer who were not connected with any company. It did not employ servants or agents, and "did nothing out- It is further alleged that when the plainside of New York." It did, however, estab- tiff submitted the plans to the defendant and lish and maintain an information service for other companies, the price named by the dethe members, which included the standardiza- fendant and the other companies, while about tion of trade, and technical, mechanical, or the same as the contract price, was the result engineering practices, which the master de- of fraudulent and collusive bidding, and that tails. At its meetings, or the meetings of the the plans, having been "figured" at the office executive committee of the association, ques- of the Fire Protection Survey Bureau, of the tions of interest pertaining to the sale of existence of which, or its methods of service, sprinklers were discussed, which were largely he is found to have been ignorant when the confined to labor matters, and to general contract was made, were not independently conditions affecting the trade or industry. considered by each of the companies to The scope and purpose of these organizations which they were submitted for bids. The six with which the defendant was affiliated when companies and the Rhode Island Sprinkler the contract was made the master finds was & Supply Company maintained an office in to promote economy and efficiency of opera- Boston in charge of one Miss Barrett, who tion, and there was no attempt to suppress or was an employee of the Rhode Island Comdestroy competition. Board of Trade v. Unit-pany. These companies paid the rent and her ed States, supra. It also does not appear salary, with other incidental expenses such that the bureau acted oppressively as to the as the cost of office furniture, files for keepplaintiff or others who were in the marketing papers, and installation and maintenance for the purchase and installation of sprinklers. If, as the report states, the defendant and other companies were unwilling to sell their sprinkler heads to outside companies or to individuals, it is found that there was no combination between them to keep sprinkler heads, which were an essential part of the system, from the market. "It was purely the desire of each one to refrain from selling its product." The plaintiff accordingly has failed to establish the material allegations of the bill, that the purpose of the bureau or of the association, either acting singly or in combination, was to monopolize or attempt to monopolize interstate trade, or to form a trust, or conspiracy in restraint of trade, or to create a monopoly in the manufacture or sale in this commonwealth of any article or commodity in common use, or to stifle competition in the supply or price of any such article or commodity. Standard Oil Co. v. United States, 221 U. S. 66, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; United States v. St. Louis Terminal, 224 U. S. 383, 391, 32 S. Ct. 507, 56 L. Ed. 810; United States v. Reading Co., 226 U. S. 324, 369, 33 S. Ct. 90, 57 L. Ed. 243; Cement Manufacturers' Protective Association v. United States, 45 S. Ct. 586, 69 L. Ed.

*

decided by the United States Supreme Court June 1, 1925; Hobam v. Dempsey. 217 Mass. 116, 104 N. E. 717, L. R. A. 1915A, 1217, Ann. Cas. 1915C, 810; Commonwealth v. North Shore Ice Delivery Co., 220 Mass. 55, 107 N. E. 402; Quincy Oil Co. v. Sylvester, 238 Mass. 95, 130 N. E. 217, 14 A. L. R. 111; Goyette v. C. V. Watson Co., 245 Mass. 577, 592, 593, 140 N. E. 285. The cases of United Shoe Machinery Co. v. La Chappelle, 212 Mass. 467, 99 N. E. 289, Ann. Cas. 1913D, 715,

If any company bid for sprinklers, it sent her a statement of the work with the bid on "a quantity estimate sheet." If a bid and statement was received from another company, she made a synopsis of the statements and bids and sent them to each bidder, and if any company executed a contract for any particular work, the agreed price was reported and kept with the file relating to the transaction. The companies were designated by her and among themselves by a number, and not by name, and the method of business so conducted was known by companies concerned as "open price competition."

The office was discontinued the last of 1917 or the beginning of 1918, Miss Barrett was discharged, and the files, minute books, and other papers were destroyed. But even if the files were open to the inspection of any company, with the lists of contracts, copies of which were sent to all the companies, this arrangement, with which the bureau had no connection, was terminated prior to the plaintiff's contract, and the charge of conspiracy and collusion in the twelfth and thirteenth paragraphs of the bill, between the companies to defraud the plaintiff by a secret, material enhancement of price, so that, instead of obtaining the lowest estimate, he paid a maximum or extortionate price, is explicitly found to be groundless.

The result reached by the master, that during the year 1919 there did not exist in Boston or its vicinity a combination or conspiracy among companies, including the defendant, engaged in installing sprinkler systems for the purpose of creating a monopoly in the manufacture, production, or sale of automatic sprinklers, or restraining competition in such manufacture, production, or sale,

sential element of seal not amenable after expiration of time limited.

or restraining trade or commerce among the [ 7. Removal of causes 88-Bond lacking esseveral states in violation of the laws of the United States are supported by his previous findings for reasons already stated, and are in conformity with the law governing the

court.

3. Removal of causes 89(2, 3)—State court has duty to consider and adjudicate whether on face of record case ought to be removed. In petition under Judicial Code, § 29 (U. S. Comp. St. § 1011), it is duty of state court to consider and adjudicate, subject to review by Supreme Court of United States, whether on face of record case ought to be removed.

4. Removal of causes 89(1)—Judicial Code is mandatory as to filing accompanying bond for removal of case.

Judicial Code, § 29 (U. S. Comp. St. § 1011), is in form permissive as to filing petition for removal by party entitled thereto, but mandatory as to filing accompanying bond, provided petition for removal is filed.

5. Bonds 14-A bond imports a seal.

A bond imports a seal, and, if instrument bears no seal, it is not a bond, and obligation does not exist.

89(1)

6. Removal of causes
Filing bond
within time limited is condition precedent.
Filing of instrument valid as a bond within
time limited is condition precedent to removal of
case to federal court under Judicial Code, § 29
(U. S. Comp. St. § 1011).

Instrument which is not a bond because lacking essential element of a seal is not susceptible of amendment after expiration of time limited in Judicial Code, § 29 (U. S. Comp. St. § 1011).

8. Removal of causes 88-Instrument intended for bond not supplanted after time expired by good bond over objection of opposing party.

under Judicial Code, § 29 (U. S. Comp. St. § On motion to remove case to federal court 1011), an instrument that was no bond because lacking seal cannot be supplanted after time has expired for removal of case against objection of opposing party.

Report from Superior Court, Suffolk County; P. J. O'Connell, Judge.

RUGG, C. J. The question here presented is the correctness of a ruling concerning the removal of the case to the District Court of

the United States. It is conceded that the action is, as to parties and subject-matter, removable from the state to the federal court.

* *

It is provided in section 29 of the Judicial Code, 36 U. S. St. at Large 1094, c. 231, Act of March 3, 1911 (U. S. Comp. St. § 1011), that a party desiring to remove a suit from the state to the federal court of the United States "may make and file a petition, duly Verified, in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court and shall make and file therewith a bond, with good and sufficient surety," for the purposes therein stated. In the case at bar the defendant, on January 28, 1924, filed in the superior court a petition to remove under this section. No objection is raised as to the petition. At the same time it filed a paper entitled "Bond on Removal." That paper contained no recital that it was to be sealed and was not, in fact sealed. On January 30, 1924, the plaintiff filed a motion to dismiss the petition to remove on the ground that the petition was accompanied by no bond as required by law, and that the writ

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

(148 N.E.)

common law as to bonds has been adhered to with some strictness in this commonwealth. It was said in Burns v. Lynde, 6 Allen, 305, 312, respecting a bond, that:

"It is highly useful that a class of instruments should exist, to which persons may resort with a feeling of confidence that they shall not be binding till they are formally executed, and that when thus executed they shall not be liable to be varied or controlled."

ing called a bond was in no sense a bond be- | bond, and the obligation does not exist. The cause not properly executed and having no seals. On February 6, 1924, which was after the expiration of the time limited by section 29 of the Judicial Code for filing the petition and bond, a paper entitled "Amended Bond" was offered for filing with the clerk of the superior court without notice to counsel for the plaintiff. This amended bond was duly sealed. It is admitted that this amended bond was executed subsequent to February 1. 1924. The superior court refused to allow this bond to be filed. The plaintiff's motion to dismiss the petition for removal was allowed, the court ruling, as matter of law. that the writing entitled "Bond of Removal" and filed with the petition for removal, was not an instrument under seal and did not in point of law constitute a bond; that the "Amended Bond," having been filed after the expiration of the time limited and after the period allowed for appearance and answer, was not a compliance with the provisions for removal contained in the Judicial Code; and that the case, therefore, had not been removed and the superior court continued to have jurisdiction. The correctness of this ruling is reported for consideration.

Other cases emphasize the necessity of a seal in order to constitute a bond. Banorgee v. Hovey, 5 Mass. 11, 24, 4 Am. Dec. 17; Tasker v. Bartlett, 5 Cush. 359, 364; Bates v. Boston & New York Central R. Co., 10 Allen, 251, 254, 256; Hendee v. Pinkerton, 14 Allen, 381, 389; Macurda v. Fuller, 225 Mass. 341, 344, 114 N. E. 366; U. S. Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 470, 114 N. E. 734. This is the law of the. Supreme Court of the United States, as we understand it. In Koshkonong v. Burton, 104 U. S. 668, 673, 26 L. Ed. 886, it was said:

"The word 'bond' at common law (and even now as a general rule) imports a sealed instrument."

In De Ganay v. Lederer, 250 U. S. 376, 381, 39 S. Ct. 524, 526 (63 L. Ed. 1042) occur these words quoted from Blackstone v. Miller, 188 U. S. 189, 206, 23 S. Ct. 277, 279 (47 L. Ed. 439):

"Bonds * are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337 [58 N. E. 1078, 83 Am. St. Rep. 279]."

[6-8] It seems to us that the filing of an instrument valid as a bond within the time limited, is a condition precedent to removal

under section 29 of the Judicial Code. Doubt

[1-5] A decision of this question of law must be made by this court, although its final determination is within the jurisdiction of the Supreme Court of the United States. On a petition for removal, all disputed questions of fact must be tried in the federal court; they cannot be passed upon by the state court. It is the duty of the state court to consider and adjudicate, subject to review by the Supreme Court of the United States, whether on the face of the record the case ought to be removed. Chesapeake & O. R. v. Cockrell, 232 U. S. 146, 152, 154, 34 S. Ct. 278, 58 L. Ed. 544; Eaton v. Walker, 244 Mass. 23, 27, 138 N. E. 798, and cases there cited. Commonwealth v. Norman, 249 Mass. 123, 127, 144 N. E. 66. It is to be observed that the section of the Judicial Code here in question is in form permissive as to the filing of a petition for removal by any party entitled to re-sential element is not susceptible of amendmoval, but mandatory as to filing an accompanying bond, provided a petition for removal is filed. It seems plain to us that the paper entitled "Bond on Removal" filed with the petition for removal, was not a bond. It is elementary law that a bond imports a seal. “A bond is merely an obligation under seal." Commonwealth v. Smith, 10 Allen, 448, 455, 87 Am, Dec. 672, As is said in Williston, Contracts, § 205:

"The obligation of the maker of a sealed instrument under the common law depends wholly on certain forms being observed. If the forms are observed the obligation is binding. The instrument is not evidence of an obligation, it is the obligation itself."

The converse of this is equally true, that if the instrument bears no seal, it is not a

less ordinary pleadings or instruments may be amended by permission of the court; but we are of opinion that an instrument which is not a bond at all because lacking in an es

申

ment after the expiration of the time limited
in the Judicial Code. This point does not
appear to us to be governed by what is said
in Ayers v. Watson, 113 U S. 594, 5 S. Ct.
641, 28 L, Ed. 1093. It there was said that
the requirement for petition and bond is
"modal and formal" and "may to a cer-
tain extent be waived.
* Application
in due time, and the proffer of a proper bond,
are also essential if insisted on,
but, according to the ordinary principles
which govern such cases, may be waived,
either expressly or by implication. We see
no reason, for example, why the other party
may not waive the required bond, or any in-
formalities in it, or informalities in the peti-
tion, provided it states the jurisdictional
facts; and if these are not properly stated,

*

Contracts 246-Rights of party deter. mined by modified agreement.

If written building contract was changed by agreement, rights of the parties are to be determined by contract in its modified form. 6. Work and labor 26-Burden of proving substantial performance and good faith on contractor.

In action to recover on building contract, burden of proving substantial performance and good faith was on contractor.

7. Work and labor 12—Intentional departure from contract in material matter prevents recovery.

Intentional departure from building contract by contractor in material matter without justification or excuse will prevent recovery.

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

(148 N.E.)

8. Work and labor 12-Absence of finding that contractor acted in good faith or intended to perform held bar to recovery for work done and materials furnished.

In suit to recover for work done and materials furnished by plaintiff in building garage for defendant, absence of finding that plaintiff acted in good faith, or intended completely to perform contract, or substantially perform it, was bar to recovery on quantum meruit.

9. Work and labor 29(1)-Contractor entitled to recover what extra work and materials were fairly worth.

In suit by contractor on quantum meruit for his work and materials in erection of garage building, not covered by written contract, but furnished at owner's request, contractor was entitled to recover what they were fairly worth.

the essence of the contract. The concrete floor was laid from 2 to 11⁄2 inches thinner than required by the contract. It contained an excess of gravel or sand, with not enough cement to set and hold it; the surface was improperly graded and uneven, the soil was not properly prepared before the cement was laid, and, through the plaintiff's fault, it was

left without heat, and froze. Certain inside finish was not covered with metal, as required by the building laws of Brockton. For these and other omissions or defects in allowed a sum in recoupment, deducting the the performance of the contract, the auditor amount from the contract price and stating that he had in mind solely the claim of the plaintiff on the written contract. The first item in the account as stated by the auditor is: "For building the garage under the writ

Exceptions from Superior Court, Plymouth ten contract in substantial conformity thereCounty; F. J. McLeod, Judge.

Action of contract against Nazzareno De Vito against Ralph Uto to recover balance due on written building contract, afterwards modified by oral agreement. Finding for plaintiff, and defendant excepts. Exceptions sustained.

W. A. Rollins, of Boston, for plaintiff. D. J. Triggs, of Boston, for defendant. SANDERSON, J. This is an action of contract with a declaration in three counts; the first, to recover a balance due upon a written contract afterwards modified by oral agreement; the second, to recover the same amount for work done and materials furnished by the plaintiff in building a garage for the defendant; and the third, upon a quantum meruit for extra work. The defendant's answer is a general denial, payment, and an answer in recoupment. The case was referred to an auditor with a stipulation that his findings of fact should be final.

The declaration stated that the second count was for the same cause of action as the first. The auditor's report shows that the defendant, a few days after the work was begun, desired to change the construction of the garage by the addition of a boiler room, office and chimney, which required tearing down a part of the foundation already built and making a deeper excavation. He allowed the plaintiff the amount found due for work and labor in making these changes under the third count for extras. The auditor also found that the "requirements of the written contract, except as hereinafter indicated, were substantially complied with, and plaintiff is entitled to recover the contract price, less payments made on account thereof, after making certain deductions on account of poor construction and work required to remedy the same, and for failure to comply with the building laws," and that time was not of

to, $2,700." On the count for extra work and materials, the auditor found for the plaintiff in the sum of $153 and interest.

A judge of the superior court, who heard the case upon the auditor's report, found for the plaintiff in the sums stated by the auditor to be due, with interest, but ruled, in accordance with the defendant's request, that there could be no recovery on the first count. The defendant presented 15 requests for rulings and excepted to the decision of the court in finding for the plaintiff, to the judge's refusal to rule as requested, and to the rulings made. The judge stated that the auditor found expressly, or by necessary implication, that the plaintiff had substantially and in good faith performed the contract, and ruled that the changes and omissions and defects in material and workmanship were not of sufficient importance to defeat the plaintiff's right to recover on quantum meruit; that the measure of recovery is the actual benefit received by the defendant from the labor performed and materials furnished, not exceeding the amount of the contract price; that it was within the province of the auditor, in determining the amount of such benefit, to consider the proportion in value which the work done bears to the whole value of the work if done in strict compliance with the contract; and that the fact that such proportionate value was found by making deductions representing the depreciation in value on account of variations, omissions, and inferiority of work and material, is immaterial. He denied all the defendant's requests for rulings except the first, and except in so far as they were given in substance by rulings made, and he gave the plaintiff's request that on the auditor's report the plaintiff is entitled to recover the whole amount found due him by the auditor.

[1-5] The contention of the defendant is that the judge was not warranted in finding for the plaintiff on either the second or third

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