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(146 N.E.)

barrels; that he came to a pile of barrels I shipped him no barrels which he did not and asked the price of these barrels; that pick out in the yard or inspect at the cars exTillier said he would give Aronson $2.25 per cept one carload which was shipped from barrel if he would put them on the cars and Maine. It was my general custom to have the ship them to New Jersey; that Aronson buyer pick out the barrels from the pile. A said he would not be willing to do that, but look around until he finds what he wants. It man who wants to buy barrels from me has to Tillier could buy them f. o. b. cars Cam- was my usual custom to have a written agreebridge; that Tillier said he would do this ment similiar to the agreement with Mr. Tillier, provided he was allowed to inspect the bar- even if the barrels were paid for in advance." rels at the cars in Cambridge, and Aronson agreed to this; that they went upstairs and Tillier gave Aronson a check for the barrels, Aronson saying that he would start shipments as soon as the check came through; that thereupon Aronson directed his bookkeeper to make out "a memorandum of an agreement," which was made in duplicate.

Aronson testified:

"I signed the original and Mr. Tillier signed

the duplicate. I saw Mr. Tillier sign it myself. He signed it in my office in the presence of my bookkeeper."

He further testified that on each of the five occasions on which Tillier came to purchase barrels a memorandum of the agreement entered into was made out in duplicate; that he saw Tillier sign one copy and he signed the other. In the civil case these documents were introduced in evidence, and when the case was finished were handed to the defendant by his counsel in that case; the defendant was then told that the papers were of no further use and he put them in the waste basket.

These papers were alike in form, were filled in according to each order, and read as follows:

“I, Fred Tillier, of Brooklyn, N. Y., have this day agreed to purchase of John N. Aronson, of East Cambridge, Mass., and the said John N. Aronson has agreed to sell to the said Fred Tillier a lot of or carloads of oil barrels at the price Mr. Tillier is to remove these barrels within days from this date from John N. Aronson's yard, Cambridge, and Mr. Tillier is to inspect these barrels at the time of loading. John N. Aronson hereby acknowledges receipt of check for

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In passing it must be noted that the alleged signed "memorandum of an agreement" in an important particular differs from the unformulated oral agreement, in that Tillier does not agree in the "signed agreement" to "buy them [the barrels] f. o. b. cars Cambridge," and in that the "signed agreement"

provides for the purchase and sale of "oll barrels," as distinguished from barrels which may or may not be fit for or adaptable to any particular use.

It was the contention of the plaintiff that he purchased five cars of second-hand oil barrels, which were to be paid for in advance and were to be shipped to Bayonne, N. J. The second count of the declaration in the civil action alleged an express warranty that the barrels purchased were "refined No. 1 barrels." The third count in the said declaration alleged:

"That the barrels were not merchantable as oil barrels and not fit and suitable for the purposes of the plaintiff."

On these allegations of the declaration there were to be tried the issue of an express warranty and the issue of an implied warranty.

[1, 2] The "memorandum of an agreement" contains every element of an express formal contract, and if executed by the parties was a complete answer and defense to the allegation of an express warranty, set out in count 2 of the declaration. The alleged memorandum if executed were also a defense to the contention of the plaintiff that he had the right of inspection in New Jersey, as a condition subsequent to the passing of title in Cambridge; and established the contention of the defendant that the right of inspection and the right of rejection were, by the terms of the written agreement, to be ex

At the trial in the civil case Tillier denied that he had signed the documents; and an expert, to whom the documents were re-ercised, if at all, in Cambridge; and that ferred, testified that in his opinion the signatures on them were not in Tillier's handwriting. In the case at bar a handwriting expert testified that he had examined the five contracts and an admittedly genuine copy of Tillier's handwriting; "that the signatures were too similar to have been written on different dates;" and "that in his opinion the signatures on the five documents were not those of Mr. Tillier."

At the civil trial Aronson further testified: "During the talk with Mr. Tillier before papers were passed there was no talk about the particular kind of barrels to be furnished.

the failure to inspect in Cambridge within the terms permitted by the written contract deprived the plaintiff of the right to return the goods and receive the money paid, as also of the right to retain the barrels and recover damages of the defendant because of any breach of an implied warranty of fitness, which an inspection at the time and place named in the alleged contract would have disclosed. Bradt v. Hollaway, 242 Mass. 446 136 N. E. 254; Rosenbush y. Learned, 242 Mass. 297, 136 N. E. 341; Williston, Sales, § 234, notes 34, 35, 39, 40. G. L. c. 106, St. 1908, c. 237, § 15, cl. 3.

[3-6] What have been said disposes of the contention of the defendant that there was a fatal variance between the allegation in the indictment, "and that the defendant falsely testified that said Fred Tillier signed five contracts," and the proof, as it does of the contention "that the five alleged 'contracts' were not material in the issue whether the plaintiff in Tillier v. Aronson lawfully rejected a certain number of barrels." The reading of Tillier's testimony in the civil trial, taken stenographically, was admissible to show the issue or issues raised by the pleadings in that action. It was also admissible to show what issues were in fact submitted to the jury under the instructions of the judge; and such record of the testimony was not inadmissible because in sub

stance it corroborated the oral testimony of Tillier given in the criminal case without objection. Foye v. Patch, 132 Mass. 105;

Butchers' Slaughtering & Melting Association v. Boston, 137 Mass. 186; Coyle v. Taunton Safe Deposit & Trust Co., 216 Mass. 156, 103 N. E. 288. An examination of the charge does not disclose, as the defendant contends, that the judge left to the Jury to decide "whether the evidence of the false testimony by the defendant was material to any issue," but shows that he did not leave such issue

to them.

We have examined all the contentions of the defendant and find no error in the action of the court concerning them. Exceptions overruled.

KOS v. BRAULT.

(Supreme Judicial Court of Massachusetts.

Bristol. Jan. 10, 1925.)

1. Appeal and error 1068(5)-Under finding of no negligence, refusal to instruct that defendant was responsible for negligent treatment by second physician held without error. In view of inference from finding for defendant that there was no original negligent act nor want of required skill in his treatment of child which subsequently died, there was no issue to which instruction that defendant was responsible for results obtained by second physician, even though treatment of latter was improper and negligent, was applicable, and hence request therefor was rightly refused.

2. Evidence 548-Negative answer to question as to whether treatment was different from that of ordinary practitioners held with

out error.

In action for death of infant alleged to have been caused by neglect and lack of skill of defendant and second physician employed by plaintiff, there was no reversible error in their negative answers to questions as to whether their

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At the trial it appeared that the defendant, a practicing physician and surgeon in the city of New Bedford, was called by the plaintiff to attend his wife in travail; that the wife gave birth to a child, the intestate, at about three o'clock in the morning of December 19, 1920, and that in the delivery, the femur in the left leg of the child was broken.

Contradicted by the defendant, the plaintiff introduced evidence which warranted a finding that the defendant did nothing for the broken bone at that time; that he went away and returned at about six o'clock in the evening of the same day, and then set the leg in splints in a manner that was improper and did not serve the purpose for which the splints were intended; that the defendant returned to see the child on December 20, 1920, at about six o'clock and did not call to see or attend the child thereafter. There was

further evidence for the plaintiff that the splints became loose on December 23, and the defendant was notified thereof; that on December 24, a message was sent to him that the splints had "fallen down," with a request that he should come to the house, and that he did not do so; that on December 25, the plaintiff called at the defendant's home and asked that he be sent to see the child as the bandages were down and it was constantly crying. The evidence was undisputed that the plaintiff on the morning of December 26, in the exercise of reasonable care engaged one Lafrance, a practicing physician in New Bedford, to attend the child; and later on the same day notified the defendant, upon his arrival at the house, that his services were no longer required.

There was evidence that Dr. Lafrance had an X-ray taken of the broken limb on December 26; that he ascertained by diagnosis

(146 N.E.)

that the hematoma over the part of the bone which was broken was in a septic condition; that by reason of the septic condition of the child the fracture became of secondary importance and could not be reduced until the septic condition was cured. There was evidence by witnesses for the plaintiff that after December 26, the condition of the child continued to improve until January 17, 1921, at which time the wound had closed; that on January 17, it was found that the fracture could not be reduced without an operation, as the broken ends of the bone adhered to the flesh and an incision in the child's leg was necessary; that at this operation Dr. Lafrance tied the broken ends of the femur together with a silver wire, and later on the same day ascertained from an X-ray examination that the bones were not in apposition; that he attempted by pulling to set the bones in apposition, and in this attempt pulled the wires out of place in the bones. It further appeared that following the operation and treatment by Dr. Lafrance, general blood poisoning set in and the child died on January 19, as a direct result of this poisoning. There was testimony by witnesses for both plaintiff and defendant to the effect that this treatment was negligent, that it was evidence of a lack of skill of Dr. La

france, and that the septicemia was caused by the negligent treatment or by reason of the wire which had been placed in the child's leg. There was testimony on behalf of the plaintiff that if the leg had been properly treated in the beginning the child would probably have recovered.

that the defendant, Dr. Brault, is liable for the septic condition and its consequences."

[1] And he refused to instruct them as follows:

"5. The plaintiff having selected Dr. Lafrance to attend the child the defendant is responsible, for the result even though the treatment of Dr. Lafrance was improper and negligent. Hunt v. Boston Terminal Co., 212 Mass. 99, 98 N. E. 786, 48 L. R. A. (N. S.) 116."

No instruction was given to the jury concerning the liability of the defendant for the negligence of Dr. Lafrance. In other respects the jury was fully and correctly instructed in the law. The jury found for the defendant, and thereby necessarily found that no original, negligent act and no want of that reasonable degree of learning, skill and experience, which the defendant in law was required to possess and exercise, caused the bone in the leg of the intestate to be broken during the delivery, or at the birth of the intestate; or caused, through inattention, neglect and lack of professional skill, a septic condition in the leg over part of the bone which was broken. Adams v. Dick, 226 Mass. 46, 115 N. E. 227; Adams v. Hayden, 236 Mass. 454, 459, 128 N. E. 798.

The plaintiff based his right to have the jury instructed as requested upon the rule of damages recognized in McGarrahan v. New York, New Haven & Hartford Railroad, 171 Mass. 211, 50 N. E. 610; Hunt v. Boston Terminal Co., 212 Mass. 99, 98 N. E. 786, 48 L. R. A. (N. S.) 116; Gray v. Boston Elevated Railway, 215 Mass. 143, 102 N. E. 71, and Purchase v. Seelye, 231 Mass. 434, 121 N. E. There was medical testimony for the de- 413, 8 A. L. R. 503, note 507, in substance, fendant that in a delivery under conditions that a person injured through the neglisuch as existed in this case it was not ungence of another may recover of that person common for a leg to be broken; and there such additional damages as result to him was testimony that after the birth the de- from the negligence or want of skill of a fendant tied the broken leg to the child's physician called to alleviate or cure the inibody in such a way that no further injury tial harm, if the person injured exercised could develop; that he set the leg on the reasonable care in selecting a competent evening of the same day; that he called to physician. This rule of additional damages see the child every day from December 19 is predicated upon the existence of an origuntil December 26 (except on the 24th when inal actionable act of negligence; and ashe was out of town), until he was discharg-suming such an act, the only question is, are ed by the plaintiff; and that he kept the the damages sought to be recovered the displints in place around the leg by re-enforc-rect consequence of the act? Polemis' Case, ing the bandages.

At the request of the plaintiff the presiding judge instructed the jury in part as follows:

"3. If you find that proper treatment of deceased required that the leg be mobilized, that is held rigid, that the defendant, Dr. Brault, in attempting to accomplish mobilization placed upon the limb of the deceased improper splints, or carelessly permitted the splints to become loose, and if the result of that was that the fractured ends of the bone injured the tissues, which caused the septic condition, then you may find

146 N.E.-2

[1921] 3 K. B. 560. With the finding of the jury, it follows that there was no issue of damages to which the requested ruling was applicable.

[2] We find no reversible error in the negative answer to the question to the physician and defendant:

"Was there anything in your treatment of the case, as you saw it, that was different from the treatment of such a case by the ordinary practitioner under similar circumstances?"

Exceptions overruled.

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BRALEY, J. The defendant having been tried and convicted on a complaint under G. L. c. 90, § 24, for operating an automobile while under the influence of intoxicating liquor, contends, that the trial judge erroneously refused to give the following requests as framed:

"The defendant cannot be found guilty of driving while under the influence of intoxicating liquor unless the jury find that he was actually driving in a manner different from the way he would have driven had he taken no intoxicating liquor."

"If the defendant's manner of driving his motor vehicle under the circumstances of this

case was that of a sober, careful man, he cannot be found guilty of operating a motor vehicle while under the influence of intoxicating liquor."

The only statement in the record as to the testimony is, that in addition to other evidence there was evidence that the defendant when seen by the witnesses at the place of the accident within half an hour thereafter, was under the influence of intoxicating liquor. We accordingly assume the jury could find, that the charge in the complaint had been proved.

By G. L. c. 90, § 24:

"Whoever upon any way operates a motor vehicle * while under the influence of intoxicating liquor * * shall be punished by a fine of not less than twenty nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; except that for a second offense of operating a motor vehicle while under the influence of intoxicating liquor, a person shall be punished by imprisonment for not less than one month nor more than two years."

[1-3] The Commonwealth was not required to prove that the defendant was drunk. "Whatever difficulties there may be in framing * * a definition of the extent of stitutes drunkenness, there is a distinction inebriety which falls short of and which conbetween that crime on the one hand and merely being under the influence of liquor on the other hand, which is recognized in common speech, in ordinary experience, and, in judicial decisions." Cutter v. Cooper, 234 Mass. 307, 317, 318, 125 N. E. 634, 637. The statute is penal. Its very purpose is to regulate the use of motor vehicles on the public ways, in the interests of the public welfare. See Tripp v. Allen, 226 Mass. 189, 115 N. E. 255. It was wholly immaterial whether the defendant exercised due care to avoid injury to other travelers, and he could be Convicted even if there were no travelers on

the street.

Mass. 232, 235, 100 N. E. 362, Ann. Cas. 1914A, Commonwealth v. Horsfall, 213

682.

We perceive no reason why the statute should not be construed in accordance with its plain meaning, and the entry must be, Exceptions overruled.

HAVEN et al. v. SMITH et al. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 10, 1925.)

Executors and administrators 233-Nonresident plaintiffs failing to summon executors within statutory time denied relief; "culpable neglect."

appointed and gave notice under G. L. c. 195, Where defendant died and executors were $ 1, 2, and chapter 197, §§ 2, 9, but plaintiffs were without knowledge of defendant's death until too late, under G. L. c. 197, § 9, and chapter 228. § 4, to summon in executors, held, no fraud having been practiced, that knowledge of one executor that action was pending or plaintiffs' nonresidence, or failure of defendants' counsel cient to grant relief under chapter 197, § 10; to give notice of their retirement, was insuffi"culpable neglect" meaning neglect arising from creditor's own carelessness in not seasonably enforcing claim.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Culpable Neglect.]

(146 N.E.)

Report from Supreme Judicial Court, Bris- and they wrote the plaintiffs' counsel 'they tol County.

Bill under G. L. c. 197, § 10, by Frank E. Haven and others against Delia F. Smith and others to restrain defendants from depleting assets of estate of James F. Smith, deceased, and to reserve therefrom sufficient money to satisfy plaintiff's claim. Submitted on report. Bill dismissed.

F. W. Mansfield, of Boston, for plaintiffs.
J. E. Crowley, of Boston, for defendants.

BRALEY, J. It is alleged in the bill and admitted by the answer that the plaintiffs, who are nonresidents, brought an action of contract against James F. Smith, domiciled in this Commonwealth, which was entered in the Superior Court for the county of Bristol on May 1, 1922. The single justice by whom the suit was heard finds that they had an enforceable claim "for the sum of $5,600." But, Smith having died in August, 1922, his will was duly admitted to probate the following September, when the defendants were appointed executors. Due notice of their appointment was given, and an affidavit of notice was filed December 13, 1922. In September, 1923, the executors submitted their final account, and, without obtaining a decree of distribution, paid over the funds in their possession in accordance with the terms of the will. The action, however, was pending during these proceedings, and appeared on the trial list several times after Smith's death. It does not appear by whom the case was put on the list, or why the trial was postponed. The plaintiffs had no knowledge of the defendant's death until March, 1924. It was then too late to summon in the defendants. G. L. c. 197, § 9; G. L. c. 228, § 4. See G. S. c. 97, § 5; P. S. c. 136, § 9; R. L. c. 141, § 9: St. 1914, c. 699, § 3; Wells v. Child, 12 Allen, 330, 331. The only remedy was to bring the present suit under G. L. c. 197, § 10:

would be glad to reciprocate.' The firm of
executors from all connection with matters of
Lowney & Harrington were discharged by the
James F. Smith; all the papers of James F.
Smith in their possession after Smith's death
by their direction were turned over to an at-
torney in New Bedford by the name of Gerrett
Geils. They did not withdraw their appear-
ance nor did they notify the clerk, the plain-
tiffs, or the plaintiffs' counsel of the death of
Smith. Gerrett Geils did not enter his appear-
ance in the case or give any notice. Gerrett
Geils shortly thereafter became sick and died
before the expiration of the special statute of
limitations and was succeeded by present coun-
suit until March, 1924.
sel who had no knowledge of the pendency of
* Bernard Smith
knew that the action was brought against the
testator and while there was no direct evidence
showing that he knew the action was pending
when the testator died, I find as matter of
inférence that he did know the action was
pending at that time and when the account was
fraud on the plaintiffs, they did not mislead or
filed. The defendants practiced no deceit or
deceive them, they did nothing, they simply
remained silent, and by no word or action as-
sured the plaintiffs that the testator was still
alive or dead or that they would be paid."

sary.

The knowledge of Bernard P. Smith that the action at law had been brought against his testator, or the fact that the plaintiffs were nonresidents, is insufficient singly or combined to justify relief. Wells v. Child, 12 Allen, 333; Sykes v. Meacham, 103 Mass. 285. It is distinctly found that no fraud was practiced. The defendants had given notice of their appointment as required by statute, and no further notice to creditors was necesG. L. c. 195, §§ 1, 2; chapter 197, §§ 2, 9. And, having resorted to the courts of the debtor's domicile, the plaintiffs were bound to take cognizance of the law of procedure of the forum under which they were seeking judgment against him. Emery v. Burbank, 163 Mass. 326, 327, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456, and cases "If the supreme judicial court, upon a bill in there cited. While notice to the clerk by equity filed by a creditor whose claim has not counsel for the testator of their retirement been prosecuted within the time limited by the from the case as required by the second preceding section, deems that justice and equity require it and that such creditor is not charge-common-law rule of the superior court, if it able with culpable neglect in not prosecuting had been given, might have incited comment his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person; but such judgment shall not affect any payment or distribution made before the filing of such bill." The material facts on which the granting of relief must depend are stated in the record as follows:

when the clerk notified the plaintiffs' counsel of the withdrawal, it would not necessarily have disclosed the testator's death. The defendants furthermore are not in any way chargeable with the failure of counsel no longer acting for them to comply with the

rule.

The words "culpable neglect" mean the neglect which arises from the creditor's own "The firm of Lowney & Harrington appeared carelessness in not seasonably enforcing his for the defendant Smith, a bond to dissolve the claim. Waltham Bank v. Wright, 8 Allen, attachment in the action was given by Smith with his brother Bernard Smith one of his ex- 121, 122; Sykes v Meacham, 103 Mass. 287; ecutors as one of the sureties. The attach- Leach v. Leach, 238 Mass. 100, 104, 105, 130 ment was dissolved on the assurance of Lowney N. E. 262. It is obvious that, although the & Harrington that the sureties were sufficient case was on the trial list, the plaintiffs made

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