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(146 N.E.)

was not intended to extend time, so that right would be revived after it had gone out of existence.

3. Limitation of actions

165-Where time of enforcement is essence of right, it is lost if time is disregarded.

Where right is given by statute, coupled with requirement that action to enforce it should be commenced within stated period, time is essence of right, and it is lost if time is disregarded; limitations of remedy being limitations of right.

4. Eminent domain 288-Court held without jurisdiction to amend property owner's action in tort into petition for damages after expiration of time prescribed for filing petition. Court, having no jurisdiction to entertain petition by property owner under G. L. c. 79, 14, after limitation of statute had passed, could not allow amendment changing action of tort into petition, under section 14, for assessment of damages, after limitation had expired.

Report from Superior Court, Plymouth County; E. T. Broadhurst, Judge.

Action of tort by Margaret E. Hester against the City of Brockton for damages to plaintiff's land from entry by city on private way laid out as public way. The trial judge ruled he had no jurisdiction to allow amendment to petition after a year from date of entry, and reported case. Judgment for de

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[2-4] The plaintiff relies on G. L. c. 231 § 51, which provides in substance, that the "court may, at any time before final * allow amendments * * judgment * * changing the form of the action, and may allow any other amendment which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought." And also on section 145 of this chapter, by which section 51 is made applicable to petitions for damages for taking by eminent domain, and for abatements of betterment assessments. No section corresponding to section 145 is to be found in the chapter on Pleading and Practice. R. L. c. 173. Section 145 of chapter 231 of the General Laws is one of the cross-reference sections. G. L. c. 231, § 51, is found in R. L. c. 173, § 48. Section 145 of G. L. c. 231, contains the statement, for the first time, that section 51 applies to eminent domain cases; but this section was not intended to extend the time so that a right should be revived after it had gone out of existence. It might ⚫ well be that an amendment could be allowed within the time the petition should have been brought; but the amendment could not be allowed after the year within which the petition should have been brought had expired, and the Legislature did not intend by this section of the statute, to give the plaintiff such right. It is settled law that, in every case where a right is given by statute, coupled with a requirement that an action to enforce it should be commenced within a stated 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 a 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, § 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 & Worcester Street Railway, 194 Mass. 80, 80 N. E. 517; L'Huilier v. Fitchburg, 246 Mass. 349, 351, 141 N. E. 122.

fendant.

C. G. Willard, of Brockton, for plaintiff. J. E. Handrahan, of Brockton, for defendant.

The ruling of the trial judge was right, and judgment is to be entered for the defendant.

So ordered.

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

GIOLITTO v. DINGOLO.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 28, 1925.)

1. Frauds, statute of auction is within statute.

Sale of land at public auction is within Gen. Laws, c. 259, § 1, and contract therefor must be in writing.

2. Frauds, statute of

To this memorandum the auctioneer added his initials.

The action is in contract. The plaintiff in her first count seeks to recover the difference between the amount bid by the defendant 77-Sale of land at and the price for which it was subsequently sold. In the second count she seeks to recover the deposit of $300 required to be paid by the purchaser at the first sale. The defendant answered that the "agreement involved is required to be in writing and that the same was not reduced to writing as required"; and to the second count of the declaration answered, "that the sale was not reduced to a writing, in compliance with the 'statute of frauds.' " The judge found for the defendant, and reported the case to this court on the questions of law, whether the memorandum made by the auctioneer is sufficient under the statute of frauds to bind the defendant, and "whether the obligation un

116(7)—Auctioneer is agent of both parties, authorized to make and sign memorandum.

Auctioneer is agent of both parties to sale, with authority to make and sign memorandum of sale.

3. Frauds, statute of

116(7)-Vendor and purchaser bound by memorandum of sale made and signed by auctioneer at time of sale. Both vendor and purchaser are bound under statute by memorandum of contract of sale signed by auctioneer, if it is sufficient as to .contents; but it must be signed by him at time of sale, and while agency continues.

4. Frauds, statute of 116(7)-Auctioneer's authority to bind purchaser ceased when sale was reopened and land sold to another.

Where auctioneer made memorandum of

sale after land had been sold at second sale, his agency to bind first purchaser expired when sale was reopened, and he was not such purchaser's agent when memorandum was signed.

der the second count is such a contract as is required to be in writing."

[1] A sale of real estate at public auction is within the statute of frauds. G. L. c. 259, § 1. The plaintiff could not recover under either count unless the contract was in writing, as required by the statute of frauds. Boyd v. Greene, 162 Mass. 566, 39 N. E. 277; Morton v. Dean, 13 Metc. 385.

[2-4] An auctioneer is the agent of both 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.

Action of contract by Rosa Giolitto against Marinina Dingolo to recover difference be tween amount alleged to have been bid for property offered for sale at auction and struck off to defendant and price at which it subsequently sold. Finding for defendant, and case reported. Judgment for de

fendant.

C. W. Lavers, of Boston, for plaintiff.
V. Brogna, of Boston, for defendant.

CARROLL, J. Real estate was offered for sale at public auction by the plaintiff, and was struck off to the defendant for $2,850. The advertisement of sale called for a deposit of $300 from the purchaser. The defendant, although requested to make this deposit, refused to comply. "After a few minutes [the auctioneer] reopened the sale" and the property was then sold for $2,600. The judge found that the auctioneer, immediately after the second sale, made a memorandum on the margin of the newspaper containing the advertisement of sale in this form:

"June 12. Sold the property for $2,850 to Dingolo, it was not taken, and sold to Anthony Aste for $2,600."

bound under the statute of frauds by the memorandum signed by him, if it is sufficient as to contents; but to charge the parties, the memorandum must be signed by the auctioneer at the time of sale, and while his agency continues. Gill v. Bicknell, 2 Cush, 355; White v. Dahlquist Manuf. Co., 179 Mass. 427, 60 N. E. 791; Clark v. Ol

ejnik, 240 Mass. 215, 133 N. E. 197.

The

auctioneer made no memorandum of sale when the property was struck off to the defendant. He proceeded to reopen the sale, and it was not until the land had been sold at the second sale that the memorandum was made and signed by him. His agency to bind the purchaser expired when he reopened the sale and sold the property to another. His authority to bind the defendant was then at an end. In the recent case of Clark v. Olejnik, supra, it was decided that the authority of the auctioneer to bind the purchaser does not extend beyond the time of the sale. See in this connection Gill v. Bicknell, supra; Elliot v. Barrett, 144 Mass. 256, 10 N. E. 820; White v. Dahlquist, supra.

The auctioneer was not the defendant's agent when the memorandum was signed. He was not at that time authorized to act for her, and for this reason the plaintiff cannot recover under either count, even if

(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," except a first mortgage of $6,000 held by the Abington National Bank. It was further provided that for such deed the plaintiff agreed to pay the sum of $12,200, of which sum $200 "have been paid, and an addition

In Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353, there was a sufficient memorandum to take the case out of the statute, and the sale was effectual. Gowen v. Klous, 101 Mass. 449, relied on by the plaintiff, is not in conflict with what is here de-al eight hundred [dollars] have been paid cided.

Judgment is to be entered for the defend

ant.

So ordered.

BUCKLEY v. MEER et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 29, 1925.)

1. Specific performance 13-Under terms of contract, purchaser held not entitled to compel specific performance, where vendors without fault could not convey good title.

Under contract providing premises were to be conveyed by good title, free from incumbrances, except certain mortgage, and if owner could not give good title payments made should be refunded and obligations cease, purchaser could not compel specific performance, where through no fault of vendors they were unable to convey good title, owing to attachment on land subsequent to contract; fact that purchaser was willing to take premises subject to attachment being immaterial.

2. Vendor and purchaser 334(1)-Purchaser unable to obtain title without fault on his part was entitled to refund of payments. Where purchaser, without his fault, was unable to obtain title, he was entitled to refund of amounts paid.

this day, and five thousand two hundred * dollars are to be paid in cash upon the delivery of said deed." The contract also 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 payments made under this agreement shall be refunded, and all other obligations of either party hereunder shall cease, but the acceptance of a deed and possession by the party of the second part shall be deemed a full performance and discharge hereof."

The case was heard by a judge of the superior court, who made certain findings of fact and ordered that a decree be entered dismissing the bill. A final decree was so entered and the plaintiff has appealed from that decree.

It appears that on July 3, 1923, .the parties were present at the registry of deeds, in accordance with the terms of the agreement, for the purpose of completing the sale. Shortly before noon of that day, one Ryan caused an attachment for $700 to be placed on the premises in an action brought by him in the municipal court of the city of Boston, against the defendant Annie Meer, to recover a commission for the sale of the premises to the plaintiff. The defendants offered to convey subject to this attachment, but the plaintiff refused to take title sub

Appeal from Superior Court, Suffolk Coun-ject thereto; the defendants declined to ty; Wait, Judge.

Bill by John P. Buckley against Annie Meer and another for specific performance of contract to convey real estate. From a decree dismissing the bill, plaintiff appeals. Decree modified, and, as modified, affirmed. J. N. Clark, of Boston, for appellant. S. Sigilman, of Boston, for appellees.

remove the attachment, but offered to return the $1,000 previously paid by the plaintiff on account of the purchase price, and the plaintiff refused to accept it. The trial judge found that there was no collusion between either party and Ryan; and that both parties were ready to perform the contract except for the attachment. He further found that "in consequence of the attachment arising 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 of curtesy and homestead in the premises. The contract is dated February 24, 1923, and as afterwards changed, by mutual agreement of the parties, provided that the premises should be conveyed by the defendants to the plaintiff on or before July 3, 1923, by a good and sufficient quitclaim

he is not entitled to a conveyance of the premises free from the attachment, then he desires "and hereby requests a conveyance subject to that attachment, without of course assuming any alleged liability of the defendants in reference to which the attachment was made," and requests leave to amend his bill accordingly.

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

Ordered accordingly.

[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 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 execution of the contract they are unable to give a good title, then upon refunding the payments made all obligations of both parties are at an end. The case is governed by the decision in Old Colony Trust Co. v. Chauncey, 214 Mass. 271, 101 N. E. 423. In that case the pertinent language of the contract was very similar to that in the case at bar. It was there said, at page 273 (101 N. E. 424), that:

"Such a contract is not unreasonable, and it establishes important rights and duties. A landowner might be willing to sell only upon the assumption that his title was good, and prefer to keep it if any cloud upon it was disclosed, rather than to be at the expense of removing it, while a prospective purchaser might desire to agree to buy upon precisely

these terms. If it had been the intention of the parties to make the obligation to convey or make good defects in title turn upon any other event than the quality of the owner's title, it would have been simple to express it."

The fact that the plaintiff is willing to take title subject to the attachment is immaterial and cannot affect the rights of the defendants under the contract, the language of which is clear and unequivocal. Lewenberg v. Johnson, 224 Mass. 297, 112 N. E.

870.

Dennett v. Norwood Housing Association, Inc., 241 Mass. 516, 135 N. E. 866, relied on by the plaintiff, is distinguishable in its facts from those in the case at bar.

[2] Where, as in the present case, the defendants without fault on their part are unable to carry out the contract, and where it appears that the plaintiff, through no fault on his part, is unable to obtain title, he is entitled to have refunded to him the amount which he has paid to the defendants. Milkman v. Ordway, 106 Mass. 232; Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 48, 87 N. E. 562; Rosen v. Mayer, 224 Mass. 494, 113 N. E. 217; Seretto v. Schell, 247 Mass. 173, 177, 141 N. E. 871; Rose v. Watson, 10 H. L. C. 672, 683,

684; Torrance v. Bolton, L. R. 14 Eq. 124, 135; Whitbread & Co. Ltd. v. Watt, [1901] 1 Ch. 911, 913; Fry, Specific Performance (6th Ed.) §§ 1173, 1480, 1492.

If the plaintiff within 15 days from the date of the rescript shall file an amendment to the bill praying that the sums paid by him under the contract be refunded by

COMMONWEALTH v. COHEN.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 20, 1925.)

1. Food 14-Time for fixing weight of calf held time of slaughter and dressing; "when."

As moment of death was obviously point of time which was of importance in case of animals other than calves with which G. L. c. 94, § 138, deals, that statute, prohibiting sale of calf weighing less than 40 pounds "when dressed," held by use of quoted phrase to fix the time of slaughter and dressing for determining weight, rather than to state condition; "when" meaning "at the time it is."

a

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, When.] 2. Statutes 206-Every word of statute given effect, if possible.

Every word in a statute is to be given effect, if possible.

3. Food 14-"Entrails" of calves mean in

testines.

Under G. L. c. 94, § 138, prohibiting sale dressed with head, feet, hide, and entrails reof calf weighing less than 40 pounds when moved, "entrails" mean intestines, and do not include pluck and sweetbread.

4. Food 21-Stamp of inspector held not conclusive on question of weight of dressed calf.

While it is the duty of inspector under G. L. c. 94, §§ 121, 122, 124-126, 130, 133, 135, to make sure that all laws applicable to slaughter of calves and their preparation for food are complied with, his stamp, under sections 127, 130, does not certify compliance with section 138, and in prosecution under section 138 for selling calves weighing less than 40 pounds when dressed, admitting testimony in regard to weight at period subsequent to inspection at time of dressing, and instructing that defendant could not rely on such stamp, was proper.

5. Food 22-Defendant held entitled to instruction that, if inspector's testimony was believed in regard to weight of calves, he was not guilty.

selling calves weighing less than 40 pounds In prosecution under G. L. c. 94, § 138, for when dressed, defendant was entitled to instruction that, if jury believed testimony of inspector in regard to weight of carcasses, he should not be found guilty.

Report from Superior Criminal Court, Suffolk County; Cox, Judge.

(146 N.E.)

Nathan Cohen was convicted under G. L. [ due to natural evaporation. The amount of c. 94, § 138, of delivering carcasses of calves shrinkage depends on the condition of the weighing less than 40 pounds, and on ap- carcass, the atmospheric conditions to which peal to superior court verdict of guilty was it is exposed, the manner in which it is hanreturned. Case submitted on report under dled, and the lapse of time after slaughter. G. L. c. 278, § 30. Verdict of guilty set Evaporation is hastened by exposure to dry aside, and further proceedings to be had in air, and by jouncing and handling. A dresssuperior court. ed calf contains about seventy-five per cent.

Maurice Caro, Asst. Dist. Atty., of Boston, water. The jury would have been warranted for the Commonwealth.

H. F. Wood, of Boston, for defendant.

WAIT, J. The defendant delivered to the Swift Beef Company at Boston, on April 2, 1920, the carcasses of fifteen calves each dressed and without the head, feet, hide and entrails, then weighing less than forty pounds. Complaint was made that he thereby had violated St. 1908, c. 329, § 1 (now G. L. c. 94, § 138). He was convicted in the Municipal Court of the City of Boston, and, on appeal, a jury in the Superior Court returned a verdict of "guilty." The case is before us upon a report from the judge under G. L. c. 278, § 30, which presents for our determination the meaning to be given the words "when dressed" and "entrails" as used in the statute, and the effect of a certification by a duly authorized agent of the local board of health present at the slaughter and dressing of the carcasses with regard to the weight. The judge, against the defendant's exception, instructed the jury that the words "when dressed" mean at the time of the sale or delivery, not at the time of slaughter; that "entrails" includes "the windpipe, heart, lungs, liver, stomach, bowels or intestines"; and that the defendant could not rely upon the stamping and inspection of the duly authorized inspector at the place of slaughter as to the sufficiency of the weight of each

calf.

in finding, in addition to the above, that had the pluck, shins, sweetbread and tail (which in fact had then been removed from the carcasses) been in them or been weighed with them, making due allowance for shrinkage, each would have weighed at Boston forty pounds or more. When weighed at Boston. and without the pluck, shins, sweetbread and tail, one carcass weighed thirty-one pounds; two thirty-two pounds; two, thirty-three pounds; five, thirty-four pounds; and five, thirty-five pounds. The one hundred and twenty-six carcasses had hung in an open slaughter-house without refrigeration, drying but not freezing, from March 31, to the morning of April 2, when the pluck, shins. sweetbread and tail had been removed and they had been loaded in two tiers upon a motor truck and taken to Boston. There they were again weighed and the fifteen found to weigh less than forty pounds were seized and condemned "as being under weight." They were intended to be used as food.

Statutes 1908, c. 329, § 1, reads as follows: "The sale, offer or exposure for sale, or delivery for use as food, of the carcass, or any part or product thereof, of any animal which has come to its death in any manner or by any means otherwise than by slaughter or killing while in a healthy condition, or which at the time of its death is unfit by reason of disease, exhaustion, abuse, neglect or otherwise for use as food, or of any calf weighing less than forty pounds when dressed, with head, feet, hide and entrails removed, is hereby declared to be unlawful and prohibited."

The remainder of the section relates only to the penalty for violation.

There was evidence that a duly authorized inspector from the Woburn board of health was present when the defendant, on March 31, 1920, at Woburn, slaughtered and dressed one hundred and twenty-six calves, removing head, hide, feet and intestines from each carcass, but leaving the "pluck," i. e. the heart, [1, 2] The moment of the death is obviously liver, lungs and windpipe, with the shins, the point of time which the legislators consweetbread and tail in the carcass. The sidered of importance in the case of the anicarcasses were weighed separately before the mals other than calves with which the statinspector stamped each carcass with his offi- ute deals. It is natural therefore to assume cial stamp "Inspected and Passed, Woburn, that the same time was in their minds in Massachusetts" as "healthy calves." At that dealing with calves; and that in inserting time, and with the contents above described, the words "when dressed" in the statute they each carcass weighed forty pounds or over. were fixing a time, rather than stating a conThe jury would have been warranted in find- dition. "When" has many meanings. See 40 ing that a pluck from such calves would Cyc. 920. Here it means "at the time it is." weigh from three to four pounds, the shins Unless it is given such meaning it has no together about two pounds, a tail one pound. significance; the statute would be fully as and a sweetbread half a pound; and that explicit if it were omitted. Every word in calves which weighed about forty pounds im- a statute is to be given effect if possible. mediately after slaughter would shrink from In its proper meaning, the phrase "when one to five pounds within twenty-four hours dressed" indicates a time, and the most apwhen exposed to air without refrigeration, propriate time for fixing the weight. At the

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