105 Mass. 33; Cobb v. Kempton, 154 Mass. Exceptions from Superior Court, Middle266, 28 N. E. 264), it does not follow that sex County; Joseph Walsh, Judge. where there is more than one special ad Action in contract by Frank M. Carpenter ministrator, all must join in a complaint uns against John F. Blake and others to recover der G. L. c. 215, $ 44. The powers and

compensation for sale of certain land. Judg. duties of two or more persons qualified as ment for defendants, and plaintiff excepts executors or administrators are joint, and the same is true of two or more persons qual

Exceptions overruled. ified as special administrators. The duties

J. G. Bryer, of Boston, for plaintiff. of special administrators, however, under

H. H. Newton, of Boston, for defendants. the statute, are confined to the collection and preservation of the assets of the estate;

WAIT, J. These exceptions must be overin the performance of such duties one special ruled. The judge has found that the conadministrator may act, and the same is true tract between the parties was not such as the where there are two or more executors or ad- plaintiff alleged in his declaration, but was ministrators. Although as a general rule an undertaking by the defendant to pay to executors and administrators, if there are the plaintiff all above $5,000 that he received two or more, must act jointly in the per- for the property which the plaintiff was auformance of their duties, yet either without thorized to sell for him. The judge further the presence or knowledge of the other may found that the defendant did not receive any. properly take possession of property belong-thing above the $5,000, that no sale resulting ing to the estate. In Hannum v. Day, supra, in the receipt of a purchase price was ever it was said at page 35:

consummated, and that the defendant did

not, by any wrongful conduct on his part, “It is true that in some matters, as in the contribute to the result. collection and payment of debts, and the dispo

There was evidence to justify these findsition of personal property, one executor may act, but his acts are deemed to be the acts of ings. They dispose of the case. The rulings all."

requested by the plaintiff were accepted by

the judge so far as they were consistent with It is equally the right and duty of a spe the facts as found by him, and were denied cial administrator to avail himself of the only when inconsistent with those facts. remedy provided by G. L. c. 215, $ 44, to The requests of the defendant were given make a complaint to the probate court, if proper effect. The case is well within the aunecessary, to obtain possession of property of thority of Munroe v. Taylor, 191 Mass. 483, the estate which has been concealed or em- | 78 N. E. 106. There was no fault of the debezzled.

fendant which would make applicable the [3] The finding of the court that Coleman, principle which underlies Walker v. Russell, the special administrator not joining in the 240 Mass. 386, 134 N. E. 388. See also Mccomplaint, is counsel for the respondent who Carthy v. Reid, 237 Mass. 371, 129 N. E. 675, is charged with receiving, concealing and 12 A. L. R. 100; Bemister v. Hedtler, 249 conveying away certain property belonging to Mass. 40, 143 N. E. 818, 33 A. L. R. 579. the estate, does not prevent the complainant Exceptions overruled. from performing the duties imposed upon him by G. L. C. 193, § 11.

As the petitioner is an interested party, and as he may alone bring a complaint un HESTER v. CITY OF BROCKTON. der the statute, the entry must be: Order denying motion to dismiss affirmed. (Supreme Judicial Court of Massachusetts.

Plymouth. Jan. 28, 1925.) 1. Eminent domain em 288-Only remedy for

damages to abutter from laying out of street CARPENTER V. BLAKE et al.

being under statute, petition for damages

must be filed within prescribed time. (Supreme Judicial Court of Massachusetts. A petition under G. L. c. 79, $ 14, for asMiddlesex. Jan. 30, 1925.)

sessing damages to abutter caused by taking Brokers Ow60—Broker not entitled to com- in one year after right to damages vests under

private way for public way must be filed withmission, where owner received nothing above section 16; only remedy for taking and damprice stipulated, and sale was not consum

ages being under statute. mated.

Under contract empowering broker to sell 2. Eminent domain em 288-Act making amendland for named sum, and providing he should ment statute applicable to eminent domain have as commission all he obtained above price case did not extend time, so as to revive named, he was not entitled to commission, right after it ceased to exist, where owner, without wrongful conduct, did G. L. c. 231, $ 145, making section 51, pronot receive anything above named price, and no viding for amendments at any time before final sale was ever consummated.

judgments, applicable to eminent domain cases, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) was not intended to extend time, so that right [2-4] The plaintiff relies on G. L. C. 231 would be revived after it had gone out of ex- $ 51, which provides ' in substance, that istence.

the "court may, at any time before final 3. Limitation of actions en 165_Where time judgment * * allow amendments * of enforcement is essence of right, it is lost changing the form of the action, and may if time is disregarded.

allow any other amendment

which Where right is given by statute, coupled may enable the plaintiff to sustain the action with requirement that action to enforce it for the cause for which it was intended to should be commenced within stated period, be brought.” And also on section 145 of this time is essence of right, and it is lost if time chapter, by which section 51 is made apis disregarded; limitations of remedy being plicable to petitions for damages for taking limitations of right.

by eminent domain, and for abatements of 4. Eminent domain 288-Court held without betterment assessments. No section correjurisdiction to amend property owner's action sponding to section 145 is to be found in the in tort into petition for damages after expira- chapter on Pleading and Practice. R. L. C. tion of time prescribed for filing petition. 173. Section 145 of chapter 231 of the Gen

Court, having no jurisdiction to entertain eral Laws is one of the cross-reference secpetition by property owner under G. L. C. 79, tions. G. L. c. 231, $ 51, is found in R. L. į 14, after limitation of statute had passed, c. 173, § 48. Section 145 of G. L. c. 231, concould not allow amendment changing action of tains the statement, for the first time, that tort into petition, under section 14, for assessment of damages, after limitation had expired. section 51 applies to eminent domain cases;

but this section was not intended to extend Report from Superior Court, Plymouth the time so that a right should be revived County; E. T. Broadhurst, Judge.

after it had gone out of existence. It might :

well be that an amendment could be allowed Action of tort by Margaret E. Hester within the time the petition should have been against the City of Brockton for damages to brought; but the amendment could not be plaintiff's land from entry by city on private allowed after the year within which the peway laid out as public way. The trial judge tition should have been brought had expired, ruled he had no jurisdiction to allow amend and the Legislature did not intend by this ment to petition after a year from date of section of the statute, to give the plaintiff entry, and reported case. Judgment for de such right. It is settled law that, in every fendant.

case where a right is given by statute, couplC. G. Willard, of Brockton, for plaintiff. ed with a requirement that an action to en

J. E. Handrahan, of Brockton, for defend- force it should be commenced within a stated ant.

period. "Time has been made of the essence

of the right, and the right is lost if the time CARROLL, J. The question to be decided is disregarded. The liability and the remedy in the case at bar is this: Has the superior are created by the same statutes, and the court jurisdiction to allow an amendment of limitations of the remedy are, therefore, to an action of law in tort, brought within one be treated as limitations of the right." The year after the entry by city upon a private Harrisburg, 119 U. S. 199, 214, 7 S. Ct. 140, way laid out as a public way, to recover 147 (30 L. Ed. 358); L'Huilier v. Fitchburg, damages caused thereby to the plaintiff's supra; Sterling v. Frederick Leyland & Co. land abutting on the way, into a petition for Ltd., 242 Mass. 8, 13, 136 N. E. 60. This esthe assessment of such damages by a jury, tablished rule was not changed by the secunder G. L. c. 79, when the motion to amend tions referred to. The court had no jurisis not filed until after the expiration of one diction to entertain the petition brought aftyear from the date of such entry? The trial er the limitation of the statute had passed. judge ruled that, as matter of law and not International Paper Co. v. Commonwealth, as matter of discretion, the court had no 232 Mass. 7, 10, 121 N. E. 510, and cases jurisdiction to allow the amendment; and cited; and it had no jurisdiction to allow reported the case.

the amendment changing the action of tort [1] A petition for the assessment of dam- into a petition for the assessment of damages ages under G. L. C. 79, § 14, must be filed after the limitation had expired. Partridge within one year after the right to such dam- v. Arlington, 193 Mass. 530, 79 N. E. 812; ages has vested. G. L. c. 79, 8 16. No action Peterson v. Waltham, 150 Mass. 564, 23 N. E. for such taking and damages can be main- 236. This rule was not altered by the change tained at common law. The only remedy is in the statute. The court had no jurisdiction the one given by the statute. Callender v. to allow the amendment. Marsh, 1 Pick. 418; Hyde v. Boston & Wor The ruling of the trial judge was right, cester Street Railway, 194 Mass. 80, 80 N. E. and judgment is to be entered for the defend517; L'Huilier v. Fitchburg, 246 Mass. 349, ant. 351, 141 N. E. 122.

So ordered.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-15

To this memorandum the auctioneer added GIOLITTO V. DINGOLO.

his initials.

The action is in contract. The plaintiff in (Supreme Judicial Court of Massachusetts.

her first count seeks to recover the difference Middlesex. Jan. 28, 1925.)

between the amount bid by the defendant 1. Frauds, statute of Ow77-Sale of land at and the price for which it was subsequently auction is within statute.

sold. In the second count she seeks to reSale of land at public auction is within Gen. cover the deposit of $300 required to be paid Laws, c. 259, § 1, and contract therefor must by the purchaser at the first sale. The debe in writing.

fendant answered that the "agreement in2. Frauds, statute of Cm 116(7)-Auctioneer is volved is required to be in writing and that

agent of both parties, authorized to make and the same was not reduced to writing as resign memorandum.

quired"; and to the second count of the decAuctioneer is agent of both parties to sale, laration answered, “that the sale was not rewith authority to make and sign memorandum duced to a writing, in compliance with the of sale.

"statute of frauds.' » The judge found for

the defendant, and reported the case to this 3. Frauds, statute of Om 116(7)–Vendor and court on the questions of law, whether the

purchaser bound by memorandum of sale made and signed by auctioneer at time of sale. memorandum made by the auctioneer is suffi

Both vendor and purchaser are bound under cient under the statute of frauds to bind the statute by memorandum of contract of sale defendant, and “whether the obligation unsigned by auctioneer, if it is sufficient as to der the second count is such a contract as is .contents; but it must be signed by him at time required to be in writing.” of sale, and while agency continues.

[1] A sale of real estate at public auction

is within the statute of frauds. G. L. C. 4. Frauds, statute of ww116(7)–Auctioneer's 259, § 1. The plaintiff could not recover unauthority to bind purchaser ceased when sale

der either count unless the contract was in was reopened and land sold to another,

writing, as required by the statute of frauds. Where auctioneer made memorandum of sale after land had been sold at second sale, his Boyd v. Greene, 162 Mass. 566, 39 N. E. 277; agency to bind first purchaser expired when Morton v. Dean, 13 Metc. 385. sale was reopened, and he was not such pur [2-4) An auctioneer is the agent of both chaser's agent when memorandum was signed. parties to the sale, with authority to make

and sign the memorandum of the contract of Report from Superior Court, Middlesex sale. Both the vendor and the purchaser are County; R. F. Raymond, Judge.

bound under the statute of frauds by the Action of contract by Rosa Giolitto against cient as to contents; but to charge the par

memorandum signed by him, if it is suffiMarinina Dingolo to recover difference ber

ties, the memorandum must be signed by tween amount alleged to have been bid for the auctioneer at the time of sale, and while property offered for sale at auction and

his agency continues. Gill v. Bicknell, 2 struck off to defendant and price at which Cush. 355; White v. Dahlquist Manuf. Co., it subsequently sold. Finding for defend

179 Mass. 427, 60 N. E. 791; Clark v. Olant, and case reported. Judgment for de-ejnik, 240 Mass. 215, 133 N. E. 197. The fendant.

auctioneer made no memorandum of sale C. W. Lavers, of Boston, for plaintiff. when the property was struck off to the V. Brogna, of Boston, for defendant.

defendant. He proceeded to reopen the sale, and it was not until the land had been sold

at the second sale that the memorandum CARROLL, J. Real estate was offered for was made and signed by him. His agency sale at public auction by the plaintiff, and to bind the purchaser expired when he rewas struck off to the defendant for $2,850. opened the sale and sold the property to The advertisement of sale called for a de- another. His authority to bind the defendposit of $300 from the purchaser. The de- ant was then at an end. In the recent case fendant, although requested to make this of Clark v. Olejnik, supra, it was decided deposit, refused to comply. “After a few that the authority of the auctioneer to bind minutes [the auctioneer) reopened the sale” the purchaser does not extend beyond the and the property was then sold for $2,600. time of the sale. See in this connection Gill The judge found that the auctioneer, immedi V. Bicknell, supra; Elliot v. Barrett, 144 ately after the second sale, made a mem Mass. 256, 10 N. E. 820; White v. Dablorandum on the margin of the newspaper quist, supra. containing the advertisement of sale in this The auctioneer was not the defendant's form:

agent when the memorandum was signed. “June 12. Sold the property for $2,850 to He was not at that time authorized to act Dingolo, it was not taken, and sold to Anthony for her, and for this reason the plaintiff Aste for $2,600.”

cannot recover under either count, even if

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

e de


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(146 N.E.) we assume, without deciding, that the mem- deed “conveying a good and clear title to orandum was sufficient in form.

the same free from all incumbrances," exIn Thompson v. Kelly, 101 Mass. 291, cept a first mortgage of $6,000 held by the 3 Am. Rep. 353, there was a sufficient mem-Abington National Bank, It was further orandum to take the case out of the stat- provided that for such deed the plaintiff ute, and the sale was effectual. Gowen v. agreed to pay the sum of $12,200, of which Klous, 101 Mass. 449, relied on by the plain- sum $200 "have been paid, and an additiontiff, is not in conflict with what is here de- al eight hundred [dollars] have been paid cided.

this day, and five thousand two hundred Judgment is to be entered for the defend- * dollars are to be paid in cash upon ant.

the delivery of said deed." The contract also So ordered,

contained the following and other recitals:

"No commission is to be paid by the party of the first part.” “If the party of the first part [the defendants) shall be unable to give title or

to make conveyance as above stipulated, any BUCKLEY V. MEER et al.

payments made under this agreement shall be (Supreme Judicial Court of Massachusetts.

refunded, and all other obligations of either Suffolk. Jan. 29, 1925.)

party hereunder shall cease, but the acceptance

of a deed and possession by the party of the 1. Specific performance em 13—Under terms of second part shall be deemed a full performance contract, purchaser held not entitled to com- and discharge hereof." pel specific performance, where vendors without fault could not convey good title.

The case was heard by a judge of the su

perior court, who made certain findings of Under contract providing premises were to fact and ordered that a decree be entered be conveyed by good title, free from incum

A final decree was so brances, except certain mortgage, and if owner

dismissing the bill. could not give good title payments made should entered and the plaintiff has appealed from be refunded and obligations cease, purchaser

that decree. could not compel specific performance, where It appears that on July 3, 1923,.the parthrough no fault of vendors they were unable ties were present at the registry of deeds, in to convey good title, owing to attachment on accordance with the terms of the agreeland subsequent to contract; fact that pur- ment, for the purpose of completing the chaser was willing to take premises subject to sale. Shortly before noon of that day, one attachment being immaterial.

Ryan caused an attachment for $700 to be 2. Vendor and purchaser w334(1)-Purchas- placed on the premises in an action brought er unable to obtain title without fault on his by him in the municipal court of the city of part was entitled to refund of payments. Boston, against the defendant Annie Meer,

Where purchaser, without his fault, was to recover & commission for the sale of the unable to obtain title, he was entitled to refund premises to the plaintiff. The defendants of amounts paid.

offered to convey subject to this attachment,

but the plaintiff refused to take title subAppeal from Superior Court, Suffolk Coun-ject thereto; the defendants declined to ty; Wait, Judge.

remove the attachment, but offered to return Bill by John P. Buckley against Annie the $1,000 previously paid by the plaintiff Meer and another for specific performance

on account of the purchase price, and the of contract to convey real estate.

From a

plaintiff refused to accept it. The trial judge decree dismissing the bill, plaintiff appeals. found that there was no collusion between Decree modified, and, as modified, affirmed. either party and Ryan; and that both par

ties were ready to perform the contract exJ. N. Clark, of Boston, for appellant. cept for the attachment. He further found S. Sigilman, of Boston, for appellees. that “in consequence of the attachment aris

ing subsequent to the contract, and withCROSBY, J.

This is a suit for specific out fault on the part of Mrs. Meer, she was performance of a contract in writing to not possessed of that title free from incumconvey real estate. The defendants are brance she had agreed to convey," and that husband and wife. The female defend- in these circumstances the plaintiff was not ant had title to the property and her hus- entitled to specific performance. band agreed in the contract to join in the The plaintiff in his brief states that if deed to be given and to release all right he is not entitled to a conveyance of the of curtesy and homestead in the premises. premises free from the attachment, then he The contract is dated February 24, 1923, | desires "and hereby requests a conveyance and as afterwards changed, by mutual subject to that attachment, without of course agreement of the parties, provided that the assuming any alleged liability of the depremises should be conveyed by the defend- fendants in reference to which the attachants to the plaintiff on or before July 3, ment was made,” and requests leave to 1923, by a good and sufficient quitclaim amend his bill accordingly.

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

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[1] The contract provided that the prem- | the defendants, they are directed within 30 ises were to be conveyed by a quitclaim days from the date of the rescript to pay deed "conveying a good and clear title to the plaintiff $1,000, the amount received by the same free from all incumbrances' ex- them under the contract. As thus modified cept a certain mortgage. It also provided the decree is to be affirmed with costs of that if the owner should be unable to give the appeal. a good title, any payments made should Ordered accordingly. be refunded, and all other obligations of either party should cease. This agreement properly construed means that if without fault of the defendants subsequent to the

COMMONWEALTH V. COHEN. execution of the contract they are unable to give a good title, then upon refund- (Supreme Judicial Court of Massachusetts. ing the payments made all obligations of

Suffolk. Jan. 20, 1925.) both parties are at an end. The case is governed by the decision in Old Colony

1. Food am 14–Time for fixing weight of calf

held time of slaughter and dressing; "when." Trust Co. v. Chauncey, 214 Mass. 271, 101 N. E. 423. In that case the pertinent lan- of time which was of importance in case of

As moment of death was obviously point guage of the contract was very similar to animals other than calves with which G. L. that in the case at bar. It was there said, c. 94, § 138, deals, that statute, prohibiting at page 273 (101 N. E. 424), that:

sale of calf weighing less than 40 pounds "Such a contract is not unreasonable, and it "when dressed,” held by use of quoted phrase establishes important rights and duties. A to fix the time of slaughter and dressing for landowner might be willing to sell only upon determining weight, rather than to state a the assumption that his title was good, and condition; "when" meaning "at the time it is." prefer to keep it if any cloud upon it was dis- [Ed. Note.-For other definitions, see Words closed, rather than to be at the expense of and Phrases, First and Second Series, When.] removing it, while a prospective purchaser might desire to agree to buy upon precisely 2. Statutes w206–Every word of statute these terms. If it had been the intention of the

given effect, if possible. parties to make the obligation to conveyor

Every word in a statute is to be given efmake good defects in title turn upon any other fect, if possible. event than the quality of the owner's title, it 3. Food W14_"Entrails" of calves mean in. would have been simple to express it.”

testines, The fact that the plaintiff is willing to

Under G. L. c. 94, § 138, prohibiting sale take title subject to the attachment is im- of calf weighing less than 40 pounds when material and cannot affect the rights of the moved, "entrails" mean intestines, and do not

dressed with head, feet, hide, and entrails redefendants under the contract, the language include pluck and sweetbread. of which is clear and unequivocal. Lewenberg v. Johnson, 224 Mass. 297, 112 N. E. 4. Food ew21-Stamp of inspector held not 870.

conclusive on question of weight of dressed

calf. Dennett v. Norwood Housing Association, Inc., 241 Mass. 516, 135 N. E. 866, relied G. L. c. 94, &$ 121, 122, 124-126, 130, 133, 135,

While it is the duty of inspector under on by the plaintiff, is distinguishable in its

to make sure that all laws applicable to facts from those in the case at bar.

slaughter of calves and their preparation for [2] Where, as in the present case, the food are complied with, his stamp, under secdefendants without fault on their part are tions 127, 130, does not certify compliance unable to carry out the contract, and where with section 138, and in prosecution under seco it appears that the plaintiff, through no tion 138 for selling calves weighing less than fault on his part, is unable to obtain title, 40 pounds when dressed, admitting testimony he is entitled to have refunded to him the in regard to weight at period subsequent to amount which he has paid to the defend inspection at time of dressing, and instructing

that defendant could not rely on such stamp, ants. Milkman v. Ordway, 106 Mass. 232 ;

was proper. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 48, 87 N. E. 562; Rosen v.

5. Food am 22-Defendant held entitled to in. Mayer, 224 Mass. 494, 113 N. E. 217; Seret

struction that, if inspector's testimony was

believed in regard to weight of calves, he to y. Schell, 247 Mass, 173, 177, 141 N. E.

was not guilty. 871; Rose y. Watson, 10 H. L. C. 672, 683, 684; Torrance v. Bolton, L. R. 14 Eq. 124, selling calves weighing less than 40 pounds

In prosecution under G. L. c. 94, $ 138, for 135; Whitbread & Co. Ltd. v. Watt, (1901] when dressed, defendant was entitled to in1 ch. 911, 913; Fry, Specífic Performance struction that, if jury believed testimony of (6th Ed.) $S 1173, 1480, 1192.

inspector in regard to weight of carcasses, he If the plaintiff within 15 days from the should not be found guilty. date of the rescript shall file an amendment to the bill praying that the sums paid Report from Superior Criminal Court, Sufby him under the contract be refunded by | folk County; Cox, Judge.

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

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