that contributory negligence had been shown, and no exceptions were taken to the instructions. It was also a question of fact whether having undertaken the duty of transportation the defendant knew or in the exercise of ordinary diligence should have known that the contents of the car unless properly cared for might deteriorate. The onions in good condition when shipped, and in a commercial sense perishable, were kept in a closed car nearly 14 days after arrival before notice to the plaintiff, during which, owing to climatic conditions, they sprouted and decayed. And the jury could find that the resulting loss was caused by the defendant's negligence. Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275; Hudson v. Baxendale, 2 H. & H. 518; St. Clair v. Chicago, Burlington & Quincy Railroad, 80 Iowa 304. It would follow on these findings that nothing remained but the assessment of damages. EXCEPTIONS OVERRULED. N. J. MAGNAM CO. VS. R. J. FULLER ET AL. R. J. FULLER ET AL VS. N. J. MAGNAM CO. Exceptions of Magnam Company in Action of Contract for Building Grandstand. Exceptions Overruled, Feb. 8, 1916. Argued at Taunton, Oct. 25, 1915; Baker & Thurston for Company; Cummings, Cummings & Nugent for Fuller. OPINION. RUGG, C. J. N. J. Magnam Company, hereafter referred to as the contractor, made a written agreement with Robert J. Fuller and four others, hereafter called the committee, "to supply the material and do the construction of a grandstand on Columbia Field, in accordance with the plans and specifications drawn up and submitted by Engineer J. E. Judson." The grandstand was to be made of concrete. 1. After the contract had been partially performed, a concrete slab, which was an important part of the structure, broke when its supports were removed. Thereupon, the contractor refused to complete the contract in accordance with the original plans and specifications, but was ready and offered to finish the structure, provided a new and suitable design and specifications for the slab were furnished. The contractor offered to show that its reason was that it had consulted engineers and had been advised that the original plans and specifications were unsuitable and improper, and that a grandstand erected in accordance therewith would not be safe. Testimony to support this engineering view was offered. The judge ruled in substance that the reason and the evidence were not an excuse for failure to complete the contract. This ruling was right. When one enters into a contract with a builder to erect a structure in accordance with plans and specifications, which are open to inspection, without express provision touching the subject, there is no implied warranty or agreement on the part of the owner, in the absence of circumstances which by necessary intendment are the equivalent of a warranty or agreement, that the work can be done according to the plans and specifications, or that, if so done, it will be safe. It is the duty of one, who proposes to enter into a building contract, to examine the contract, plans and specifications, and to determine whether it is possible to do the work before entering into the engagement, or to insist upon some stipulation covering that matter. If, without a special agreement upon that point, he makes a general contract without fraud or mutual mistake, he has bound himself to do the work. If it turns out that he has agreed to do something which is impossible or impracticable, he cannot for that reason alone refuse to go forward. Having made his contract, he must fulfill it or bear the consequences of a breach. Rowe v. Peabody, 207 Mass. 226, 234, and cases there collected. Winston v. Pittsfield, 221 Mass. 356. Thorn v. Mayor of London, (1876) 1 App. Cases, 120. The contract in the case at bar is simple, direct and unequivocal. It contains no stipulation on the part of the committee that the grandstand could be completed or that it would be safe when completed. There are no circumstances revealed in the record which constitute an implied guarantee to this effect. The undertaking of the contractor is unqualified that he will complete the grandstand "in accordance with the plans and specifications." The evidence offered and excluded constituted no excuse for failure to perform the contract. 2. As the damages in the action of the committee against the contractor were agreed, it is not necessary to consider the bearing of the excluded evidence in that connection. 3. The letter from the treasurer of the committee to the contractor, as to the presence of an inspector upon the work, rightly was excluded. It was written before the contract was signed and hence must be presumed to have been a preliminary which was not embodied in the contract. Gaston v. Gordon, 208 Mass. 265, 269. Moreover, it does not appear to have any bearing on the issues. 4. The testimony as to the statement of the engineer of the committee, made after the breaking of the concrete slab "with reference to the work that had not been completed," rightly was excluded, both because no adequate offer of proof was made and because there was nothing to indicate that the statement was made by an agent of the committee acting within the scope of his authority. Admission respecting past events commonly are not within the power of an agent. Hathaway v. Congregation Ohabei Shalom, 216 Mass. 539, 544. 5. The letter from Judson to the committee as to the cause of the breaking of the slab was excluded rightly. It was simply an expression of opinion about a past event. It was not under oath. If the substance was material, he should have been called as a witness or his deposition taken. 6. There was no ground for exception in the temporary and provisional exclusion of the testimony as to conversation with the engineer over the telephone with regard to the removal of the forms, the judge saying: "I will give the matter a little further consideration, then you may renew your question later. I am not clear that I have ruled correctly on that matter." This was not a definite and final ruling. The matter was not again called to the attention of the judge. This was within the discretion of the judge as to the conduct of the trial. It stands on the same footing as evidence received de bene with the privilege to the objecting party of moving later that it be stricken out. Commonwealth v. Johnson, 199 Mass. 55, 59. Clarke v. Fall River, 219 Mass. 580, 586. The failure of the plaintiff to direct the attention of the judge to the point later commonly deprives the party offering such evidence of an exception. Besides no offer of proof was made, and hence it does not appear that the plaintiff was harmed. Cook v. Enterprise Transportation Co., 197 Mass. 7, 10. 7. The admission of photographs, not as evidence but as "chalks," for the purpose of illustrating to the jury the general condition, was within the discretion of the judge. Everson v. Casualty Co. of America, 208 Mass. 214, 219. In each case let the entry be, EXCEPTIONS OVERRULED. MARY MCGRATH ET AL VS. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD. Insurer's Appeal from Decree Under Workmen's Compensation Act. Decree Reversed, Claim Disallowed, Feb. 8, 1916. On Eriefs, Nov. 5, 1915; J. F. McGrath, W. A. Laughlin for Claimant; C. C. Milton, F. L. Riley for Insurer. OPINION. BRALEY, J. By the findings of the industrial accident board the insurer's first three requests for rulings become immaterial. Pigeon's case, 216 Mass. 51. But even if Mary McGrath is not a dependent the insurer contends that there is no evidence which would justify a finding that John T. McGrath, the remaining claimant, was a dependent within the meaning of the statute. The facts shown by the record are that because of the death of his mother and the intemperate habits of his father, the employe, a minor 16 years of age when he was mortally injured, lived at the home of the claimant, his half brother, of whose family he is expressly found to have been a member. The household affairs were managed by Mrs. McGrath to whom her husband and the decedent gave their weekly wages, and from this fund the household, consisting of the employe and the husband and wife with their two minor children were supported. It follows that the employe was a member of the family of the claimant, who was partially dependent upon his wages for support. St. 1911, c. 757, Pt. II., s. 6. Dodge v. Boston & Providence Railroad, 154 Mass. 299, 290; Murphy's case, 218 Mass. 278. But as the employe's father survived, and s. 2, Pt. V. of the statute provides that dependents shall mean members of the employe's family or next of kin who were wholly or partially dependent upon the earnings of the employe for support at the time of the injury, the question is whether the claimant comes within the second clause of the definition. The statute deals with the relation of employer and employe, and while no reference is made to our statutes of descent and distributions, the St. of 1887, c. 270, now Acts 1909, c. 514, s. 129, commonly known as the employers' liability act, s. 2, also provides, that where through the employer's negligence, or those for whose negligence he was made liable, the employe was instantly killed or died without conscious suffering, "his widow or, if he leaves no widow, his next of kin who at the time of his death were dependent upon his wages for support shall have a right of action for damages against his employer." The Pub. Sts. c. 135 and c. 125, in force when the statute was first enacted, contain the same provisions relating to the inheritance of personal property as the R. L. c. 140 and c. 133. And it was held in Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 5, where the deceased employe left as his only heirs a brother and sister, and in Welch v. New York, New Haven & Hartford Railroad, 176 Mass. 393, where the sole heirs were his father and mother, that the sister and mother if actually dependent could recover although the brother and husband would have shared equally if the question had arisen over the distribution of the intestate's personal property. A like construction of the present statute may be found in Herrick's case, 217 Mass. 111, where the employe, having left two daughters, one married and one single, the unmarried daughter being wholly dependent was awarded compensation accordingly. It is plain from not only these de cisions, but the wording of the statute that while dependency determines the right to compensation, it is also necessary that the dependent should be in the same degree of kinship as the statutory heir or heirs. It is true that the object of the statute is to provide in place of the wages of the deceased employe the means of sustenance for his widow and other dependents. Cripp's case, 216 Mass. 586, 589. And if dependents are to be ascertained solely from those nearest in blood it may happen where a father and mother survive who are not dependent, a sister wholly dependent must be denied relief. Of if the employe leaves no widow, but only children who are amply provided for by marriage or otherwise are self supporting, and an indigent mother wholly dependent upon him, the mother is not within the statute. But the words "next of kin" as used in our laws uniformly refer to those who are nearest in degree by consanguinity. Ewasey v. Jaques, 144 Mass. 135. It must be assumed that this term as used in the statute was intended by the Legislature to have this well recognized meaning, and we cannot construe "next of kin" as being the equivalent of dependent next of kindred, which would embrace all dependents without regard to the degree. Shelton v. Sears, 187 Mass. 455; Heidecamp v. Jersey City, Hoboken & Paterson Street Railway Co., 40 Vroom 284; Chicago & Alton Railway Co. v. Shannon, 43 Ill. 338, 345, 346; Clarkson v. Hatton, 143 Mo. 47. The claimant cites Caliendo's case, 219 Mass. 498, where the mother and sister of the employe shared equally in the award, but the question whether they were in the same degree of kinship was not raised or considered. The decree must be reversed and the claim disallowed. ORDERED ACCORDINGLY. GOVERNOR'S APPOINTMENTS. Gov. McCall sent to the executive council on Feb. 9 the appointment of Arthur L. Millet of Gloucester for member of the fish and game commission; Mrs. Charlotte R. F. Ladd of Sturbridge, trustee Grafton State Hospital; Miss Flora L. Mason, Taunton, trustee Westboro State Hospital; George B. Dawson of Cohasset, trustee Hospital Cottages for Children. In making the nomination of Mrs. Ladd as a trustee of the Grafton State Hospital the Governor first withdrew his previous nomination for the Westboro State Hospital beard of trustees. Under suspension of the rules the council confirmed the nominations of both Mrs. Ladd and Miss Mason. The council also confirmed Frederick P. Cabot as judge of the Boston juvenile court and all the other nominations previously made. LEGISLATIVE COMMITTEES Dates Scheduled for Important Hearings-Place of Meeting and Membership of Committees. Special Committee on Governor's Message. Meets Tuesday and Thursday at 10:30 (room 362). Senators Hays (chairman), Martin and Hull; Representatives Smith of Boston (House chairman), Sherburne, Chamberlain, Faxon, Allen of Newton, Sawyer, Lynch and Casey. Clerk, Mr. Faxon. Banks and Banking. Meets Tuesdays and Thursdays at 10:30 (room 446). Senators Fay (chairman), Cavanaugh and Tetler; Representatives Wilson of Boston (House chairman), Mildram, Gates, Swig, Fisher, Freeling, Morris and Ware. Clerk, Mr. Morris. (H, 1180) On investment of de (H. 1479) On issuing check except Insurance. Meets Tuesdays and Thursdays at 10:30 (room 481). Senators McLane (chairman), Bartlett, Jackson and Chapman; Representatives Davis (House chairman), Achin, Frost, Waterman, Morrison, Kelley of Fairhaven, Furbish, Frail, Sherry, T. F. Donovan of Boston and O'Brien. Clerk, Mr. Sherry. (S. 14) That board of appeal fix reasonable rates of fire in surance (H. 546) That contractors on pub- ployes against injury.. (S. 62) That insurance commis- losses ness .Feb. 15 .... Feb. 15 (H. 1210) On defining words, etc., in fire insurance contracts.... Feb. 15 |