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Page Vance v. Wade (Ind. App.).

399 West v. State Street Exchange (Mass.)... 37 Van Vechten v. American Eagle Fire Ins. Westbourne Cemetery Corporation of Co. (N. Y.)..

432 Boston, Inhabitants of Canton Vartanian, Commonwealth v. (Mass.). 682 (Mass.)

238 Vigilante v. Old South Trust Co. (Mass.) 670 Westerdahl, People v. (ill.)

737 Village of Deshler y, Northwestern Ohio Western Union Tel. Co. v. Owens (Ind. Light Co. (Ohio). 316 App.)

427 Village of Wilmette, Gage v. (Ill.).. 325 | Westinghouse Electric & Mfg. Co. v. FidelVincennes Bridge Co., Jenkins v. (Ind. ity & Deposit Co. of Maryland (Mass.). 711 App.) 863 Wheat v. State (Ind.)

541 Vitti, Pennsylvania R. Co. v. (Ohio)..... 94 Wheeler, Runau v. (Ind. App.)

581 Vona, Commonwealth v. (Mass.) 20 Whitney v. Porter (Mass.).

771 Williams v. Christopher (Ohio).

317 Williams v. De Roo (111.).

470 Wade, Vance v. (Ind. App.) 399 Williams, Runyan v. (Ill.).

497 Waldorf System, Gracey v. (Mass.).... 232 Williams v. Williston (Ill.).

143 Waldorf System, McCarthy v. (Mass.) 663 Williams Co., Brode v. (Mass.)

731 Wall v. Britton Stevens Motors Co. (Mass.) 693 Williston, Williams v. (111.)

143 Wallace, J. G. Pierce Co. v. (Mass.) 658 Wilson's 'Estate, Heaton v.' (Ind. App.).:: 588 Wallace, People v. (III.)

486 Winslow Bros. & Smith Co. v. Universal Walsh v. Feinstein, two cases (Mass.). 355 Coat Co. (Mass.)

713 Walsh, King v. (Mass.) 33 | Wiseman v. Rome (Mass.)

29 Walters v. Baltimore & 0. S. W. R. Co. Wissel, Mancourt v. (Ind. App.)

423 (Ohio)

75 Wit Realty Co. v. G. F. Redmond & Co. Waltz, Artificial Ice & Cold Storage Co.

(Mass.)

903 v. (Ind. App.) 826 Witte, People v. (111.)

178 Ward, Dumas v., two cases (Mass.) 709 Wolfert, State v. (Ohio)

317 Wasserman, Cosmopolitan Trust Co. v. Woodard, Alward v. (111.)

151 (Mass.) 772 Wrenn, Brickley v. (Mass.)

797 Watson, Pennsylvania R. Co. v. (Ind. App.) 763 W. R. Grace & Co. v. National WholeWebb v. Fifer (Ind. App.). 872 sale Grocery Co. (Mass.)...

908 Webber, O'Connor v. (N. Y.).

200! W. R. Grace & Co. v. Shaghalian's, Inc. Weinberger, People v. (N. Y.) 434 (Mass.)

799 Weinstein, Hodsdon v. (Mass.)

675 | Writesman v. Pettis Dry Goods Co. (Ind. Weinstein v. Miller (Mass.).. 902 App.)

835 Wellington v. De Cordova (Mass.).

690 W. W. Lawrence & Co. v. Kern (Ohio)... 54 Wells, Eureka Block Coal Co. v. (Ind. App.)

869 | Yellow Cab Co. v. Industrial Commission Wenger & Co. v. Propper Silk Hosiery

(11.)

160 Mills (N. Y.) 203 | Young v. Young (Mass.).

574

See End of Index for Tables of Northeastern Cases in State Reports

THE

NORTHEASTERN REPORTER

VOLUME 146

Walter H. Talbot was born in 1874, marPetition TALBOT.

ried the petitioner in 1896, and until Decem

ber 4, 1915, lived in Norton, Mass., with his (Supreme Judicial_Court of Massachusetts. wife and one son, born in 1899. He had been Bristol. Jan. 12, 1925.)

engaged with others in the wool-scouring 1. Death Em2(1)-Mere absence insufficient to business in which he had an interest. His raise presumption of death.

relations with his wife had not always been Mere absence will not raise presumption of harmonious, but there had been no open death, since absence must be from domicile or breach. He was accustomed to leave his established residence, and it must appear that home on business without telling her. He absentee had not been heard from by those

was fond of his son and of his aged father, who would be likely to hear from him, if he who was seriously sick when Walter H. Talwas alive.

bot left home, and who died about one year 2. Death Om2(1)

When presumption of thereafter. He had worked hard in his busideath does not arise.

ness, was sometimes discouraged and felt If facts and circumstances surrounding that his business associates did not treat him one's departure from home indicate that he right and that his brother did not appreciate would not be likely to communicate with fami- him. He was not in financial difficulties in ly and associates, and are such as to account connection with his business. for his absence unheard of, presumption of

For a number of years he had been calling death does not arise.

on a married woman in Cambridge, and she 3. Death Em2(1)-Death of absentee not pre- had visited his house and was on good terms sumed.

with his wife. He appeared to be infatuated Facts held to warrant finding that absen- with her for a long time, particularly the tee did not leave home for temporary purpose last month before he disappeared. She left of business or pleasure, but with intention of her home without the knowledge of her husabandoning family and business and starting band on the same morning that Walter H. anew in some other place, and to justify infer- Taibot left and has not been heard from ence that he would not be likely to let family

since. She took no money or personal beand associates hear from him, and hence to

longings with her. justify finding against presumption of death.

Walter H. Talbot went away from his Appeal from Probate Court, Bristol Coun- home in an automobile on December 4, 1915, ty; Mayhew R. Hitch, Judge.

and four days later sent his wife checks by

which she could get the automobile and his Petition in probate court by Jessie M. Tal- fur coat which were in a garage in Boston. bot for appointment of herself as adminis- The letter containing these checks bore the tratrix of the estate of Walter H. Talbot, al- postmark “Terminal Station, New York.” leged decedent. From a decree dismissing

Mrs. Talbot and son have continued to live her petition, petitioner appeals.

Affirmed.

in Norton and neither they nor any one else, J. Albert Brackett, of Boston, for appel- so far as they know, have heard from Tallant.

bot since she received the letter containing

the checks. A witness, engaged in the wool SANDERSON, J. This is an appeal from business and who was in a position in which & decree of the probate court for the county he would be likely to hear of most persong of Bristol, dismissing a petition of Jessie M. prominently engaged in the wool business at Talbot, dated March 25, 1924, for the ap- home or abroad, had not heard from Talbot pointment of herself as administratrix of the since December, 1915. estate of Walter H. Talbot, alleged in the pe- After Talbot disappeared Mrs. Talbot tition to have died on or before January 15, found three letters in his desk, one address1924, and after the 4th day of December, ed to her, one to her son, and one to both. 1915.

The letter to the son stated in substance that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

146 N.D.-1

was

it was a terrible thing for him (the father) | warrant a finding in favor of the plaintiff on
to go away and leave his son, that he had this part of the case."
been miserable at home, could not live "this
way any longer”; that some day he hoped | E. 809, the court refers to the presumption

In George v. Clark, 186 Mass. 426, 71 N.
to have his son with him and he would come
to him some day; that he (the son) was the of death as one that arises from a person's
one reason why it was hard to go. These

"unexplained absence." three letters relate mostly to money which

[1, 2] Absence alone, no matter how long the mill owed Talbot and to other property continued, is not sufficient to raise the prehe was giving to his son and wife, and con

sumption of death. The absence must be tain instructions about it; one of them ex

from the person's domicile or established pressed the wish that he had more to leave

residence. Hitz v. Ahlgren, 170 Ill. 60, 48 them. In his letter to both he stated that N. E. 1068; Francis v. Francis, 180 Pa. 644, he was not giving them much ready cash be- 37 A. 120, 57 Am. St. Rep. 668. In the case cause he wanted some "to start anew with"; last cited the person left his home in Pennthat he was doing the best he could for them sylvania and settled in Patagonia. Under and thought they would realize that they

these circumstances there a change were "getting the bulk.” With these letters of residence and it was held that the prewas a power of attorney to the wife giving sumption of death did not arise from his her authority to cash checks, transfer bonds, absence from his home in Pennsylvania unstocks and other securities, receive the pro

heard of for seven years.

It must appear ceeds thereof, and to raise money by loans that the person who had gone away had not on his insurance policies.

been heard from by those who would be likeThe decree states in substance that it did ly to hear from him if he were alive. Davis not appear to the satisfaction of the court v. Briggs, 97 U. S. 628, 24 L. Ea. 1086; that Walter H. Talbot was deceased. The Wentworth v. Wentworth, 71 Me. 72. If the question presented by the appeal is whether facts disclosed and the circumstances surthe decree dismissing the petition for admin- rounding a person's departure from home inistration should be reversed. The appellant dicate that he would not be likely to comcontends that as matter of law upon the municate with his family and former associfacts found Walter H. Talbot is presumed ates and are such as to account for his abto be dead and a decree should have been en

sence unheard of, the presumption of death tered granting administration.

does not arise. Matter of Wagener, 143 App. The rule in regard to the presumption of Div. 286, 128 N. Y. S. 164; Stephen, Digest death was stated by Chief Justice Shaw in of Law of Ev. art. 99.

(3] The facts stated would warrant a findLoring v. Steineman, 1 Metc. 204, 211, in the

ing that Walter H. Talbot did not go away following language:

for a temporary purpose of business or pleas"It is a well-settled rule of law, that upon a

ure,

but with the intention of abandoning person's leaving his usual home and place of his family and business and starting anew in residence for temporary purposes of business some other place. His infatuation for the or pleasure, and not being heard of, or known woman, who disappeared at the same time to be living, for the term of seven years, the he went away, would justify the inference presumption of life then ceases, and that of that he left under such circumstances that his death arises.

But this presump- he would not be likely to let his family and tion may be rebutted by counter evidence former associates hear from him or know or by a conflicting presumption."

where he was. Upon the facts found the

court might properly decide that the preIn Marden v. Boston, 155 Mass. 359, 29 N. sumption of death did not arise and that E. 588, evidence was offered tending to show the petitioner had not proved that Walter that a United States pensioner left the place H. Talbot was dead. The statement in where his wife and children lived in 1867, the decree to the effect that it did not apand that they, as well as those in authority pear “to the satisfaction of the Court that at the pension department, made efforts to said Walter H. Talbot is deceased,” we take learn his whereabouts, but never heard from to mean no more than that the allegation in him after he left. The court said at page the petition that “Walter H. Talbot died on 360 (29 N E. 588):

or before the 15th day of January, 1924, and “These facts, with nothing to control the after the 4th day of December in the year inferences naturally to be drawn from them, of our Lord 1915" has not been proved.

Decree affirmed. point to his death [before January 1, 1881), and

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vor,

(146 N.E.)

not decide whether the representations of EDISON FIXTURE CO., Inc., V. MAC- the agent could be found to be ground for CAFERRI et al.

such rescission.

[1, 2] To entitle a buyer to rescind a sale, (Supreme Judicial Court of Massachusetts.

he must have notified the seller within a reaSuffolk. Jan. 9, 1925.)

sonable time of his election to rescind, and 1. Sales Om 124, 127—Buyer to rescind must must return or off to return the goods sold notify seller within reasonable time; rescind- in substantially as good condition as they ing buyer must offer to return goods.

were in at the time when the property passUnder Gen. Laws, c. 106, § 58, cl. 3, to en. ed. This rule applies under the Sales Act, title buyer to rescind, he must have notified St. 1908, c. 237, $ 69, cl. 3, now G. L. c. 106, seller within reasonable time of election to rescind, and must offer to return goods sold in 8. 58, cl. 3, and is in accord with the rule of

the common law. Dorr v. Fisher, 1 Cush. substantially as good condition as they were

271, 274. Bassett v. Brown, 105 Mass. 551 ; when property passed.

Skillings v. Collins, 224 Mass. 275, 277, 112 2. Sales Cwm 121-Buyers, having used goods N. E. 938, Ann. Cas. 1918D, 424; Loomis v. sold without offer to return them, could not Pease, 234 Mass. 101, 107, 125 N. E. 177. rescind.

Williston on Sales, $8 610, 611. The undisWhere buyers used goods sold ever since puted evidence shows that the defendants sale was made, and made no offer to return have used the goods sold ever since the sale them, they could not rescind, but were charge- was made, and that no offer has been made able with purchase price.

to return them. In these circumstances, they Exceptions from Superior Court, Suffolk cannot rescind the sale but are chargeable

for the contract price. County; Hammond, Judge.

The trial judge rightly allowed the plainAction of contract by the Edison Fixture tiff's motion for a directed verdict in its faCompany, Inc., against A. Maccaferri and another, doing business as the Puritan Cloth- Exceptions overruled. ing Company, to recover balance of purchase price of electrical fixtures. Motion to direct verdict for plaintiff was allowed, and defendants except. Exceptions overruled. H. M. Lichtenstein, of Boston, for plain

COMMONWEALTH v. SPEZZARO. tiff,

(Supreme Judicial Court of Massachusetts. M. Collingwood, of Boston, for defendants.

Middlesex. Jan. 8, 1925.) CROSBY, J. This is an action to recover

1. Burglary 41(1)-Evidence held to sus. the balance of the purchase price of seven

tain conviction of being accessory to breakelectrical fixtures, sold and delivered to the

ing and entering and larceny. defendants under a written contract.

Evidence held sufficient to sustain convic. The defendant Penn testified that a sales- tion under Gen. Laws, c. 274, § 4, of being acman of the plaintiff showed him the fixture, of 50 rolls of cloth.

cessory to breaking and entering and larceny which consisted of a “globe bracket, and contained a bulb"; that the salesman demon- 2. Criminal law ew351 (2)—Intentionally false strated the fixture and told the defendant

statements at time of arrest taken as admis. that the bulb was a 100-watt bulb, and that

sions. it would give just as much light as the 150

Evidence of intentionally false statements watt light which the witness was then using made by defendant at time of his arrest, as to in his store; that the witness later received by thief, is admission from which guilt may be

knowing thief or ownership of automobile used the fixtures from the plaintiff and installed inferred. them, “the fixtures corresponding in every particular to the one exhibited and demon- Exceptions from Superior Court, Middlestrated, and the defendant has used the fir

sex County; J. H. Sisk, Judge. tures and lights ever since that time and made the first payment on same, but no oth

Angelo Spezzaro was convicted of being er payments were made.”

accessory after fact to breaking and enterThe defendants contend and offered evi- ing and larceny of cloth, and he excepts. dence to show that the fixtures were equipped Exceptions overruled, with 150-watt bulbs, and that by reason of A. K. Reading, Dist. Atty., and R. T. Bushfalse representations of the plaintiff's agent nell, First Asst. Dist. Atty., both of Boston, they were induced to make the contract. for the Commonwealth, The contract contains the following recital: Volpe, Zottoli & Perkins, of Boston, for "All verbal or written agreements not men- defendant. tioned in this contract are void.” The defendants seek to rescind the sale because of CARROLL, J. The defendant was charged the alleged false representations. We need with being an accessory after the fact to

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

was

breaking and entering and the larceny of , ant and Del Grosso had often been seen 52 rolls of cloth. He was tried jointly with together. There was no evidence that either one Del Grosso, who was convicted as prin- the defendant or Del Grosso lived at 124 cipal.

Prince street. The defendant testified that [1] There was evidence that the shop of he sat down in the Dort car because he one Max Doctoroff, in Cambridge, was bro- thought the Packard car would pass through ken into and 58 rolls of cloth taken away Prince street on its way to the garage, about between the hours of 2 and 30 minutes after 150 feet distant from where the Dort car 2 on the morning of July 28, 1923; that stood; that he fell asleep; that he had not about 40 or 45 minutes after 2 o'clock on the been in Cambridge that night and had no same morning, a Packard automobile driven part in the transaction. "He had nothing by Del Grosso and containing another man to do with the loading or unloading of that

seen by police officers in Merrimac car or driving it into Boston and had no conSquare, Boston, approaching from Cam-nection with it whatsoever." On cross-exbridge and moving at the rate of 30 to 35 amination he stated that he saw Del Grosso miles an hour; that the officers failed to between 7 and 8 o'clock in front of his (the stop the car, but followed it and in about 4 defendant's) house when Del Grosso left or 5 minutes came upon it in front of 124 in the Packard machine. He denied that he Prince street; that 2 rolls of the cloth were saw Del Grosso at 6 o'clock. He testified found in the stairway at No. 124 Prince that the Packard car was kept in the "open street, 10 rolls just inside the door, and 3 air garage." There was also testimony from rolls at the top of the cellar stairs; that another witness that the defendant was seen the Packard car was "filled from the floor asleep in the Dort car about 2 o'clock. up to about the door or a little past"; that The defendant's request for a directed verDel Grosso, when the officers appeared, was dict and his motion that a verdict of guilin the doorway of the Prince street premis- ty be set aside were denied, to which rules, "without hat or coat"; and that he ran ings the defendant excepted. G. La c. 274, into the building and was finally captured. 8 4, provides: There was evidence that when the Pack "Whoever

+

after the commission of ard car was found on Prince street the de- a felony, harbors, conceals, maintains or asfendant was standing near a Dort touring sists the principal felon

or gives car, directly across the street from No. 124 such offender any other aid, knowing that he Prince street; that he was asked who owned has committed a felony

with intent the Packard car, and he said he did not that he shall avoid or escape detention, arrest, know, and also stated that he did not know trial or punishment, shall be an accessory aft

er the fact." who were the occupants of the car; that when Del Grosso was arrested, he admitted

[2] The evidence showed the commission in the defendant's presence that he knew of a felony by Del Grosso. He was seen him, and the police officer then said to the by the police officers in the early morndefendant, “I thought you did not know this ing, driving an automobile at a high rate fellow,” to which he answered, “Don't give of speed, in company with another man. me a cheap argument;" that the defendant A few moments afterward he was found also denied knowledge of the ownership of without hat or coat; some of the stolen the Packard automobile, or where it came goods had been taken into the house, the refrom, but subsequently said it belonged to mainder were in the automobile he had been Del Grosso, and when shown the bill of sale driving, and across the street the defendant for it to himself and Del Grosso as vendees, Spezzaro was found standing near another admitted that it was owned by both of them.

automobile. He had been frequently seen There was evidence that the defendant said in the company of Del Grosso; he was with to one of the police officers that he had not him the night preceding his arrest. They seen Del Grosso “at any time that night.” jointly owned the Packard automobile. The There was also evidence that, at one time, defendant contended that two men the defendant admitted he had seen Del with Del Grosso. He denied that he knew Grosso on Charter street "about 6 o'clock Del Grosso, that he knew who was in that night and

didn't meet him the Packard automobile, or knew who owned after that until after the officers came to it. If these statements, made by the dePrince street”; that the Dort car belonged fendant at the time of his arrest, were into a friend of his, that he sat down in it tentionally false, they tended to show his and fell asleep, and when the Packard au- guilt. The weight of this evidence was for tomobile stopped he left the Dort car; that the jury. But evidence of this kind is an he "believed there were two other men be- admission from which guilt may be inferred. side Del Grosso. Just then the police came Commonwealth v. Devaney, 182 Mass. 33, along and they ran away."

36, 61 N E. 402; Commonwealth v. Bond, There was evidence that "it was a nasty 188 Mass, 91, 93, 94, 74 N. E. 293; Comnight and it had been raining"; that the monwealth v. Hartford, 193 Mass. 464, 460, Dort car was an open car; that the defend- | 79 N. E. 784.

were

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