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a motion that judgment be entered in his favor in accordance with the auditor's report. This motion manifestly was framed upon Rule 30 of the superior court (1922), the material part of which is in these words:

"On the coming in of the auditor's report, either party may move for entry of judgment according to said report; and the court, thereupon, shall order such judgment to be entered, unless, within a time stated, cause appears or is shown to the contrary. If cause appears or is shown, the court may hear the parties and frame appropriate issues for the court or jury,

upon which the trial shall be had."

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134, 137 N. E. 169.

[2] The denial of the plaintiff's motion to be allowed to file late a claim for trial by jury presents no question of law. Its disposition rested within sound judicial discretion. Bailey v. Joy, 132 Mass. 356; Cleverly v. O'Connell, 156 Mass. 88, 30 N. E. 88.

The rule of the superior court here involved has recently been expounded and interpreted. Farnham v. Lenox Motor Car Co., 229 Mass. 478, 118 N. E. 874; Sherry v. Littlefield, 232 Mass. 220, 122 N. E. 300; Wheeler v. Tarullo, 237 Mass. 306, 129 N. E. 610; Allis-Chalmers Manuf. Co. v. Frank Ridlon What has Co., 248 Mass. 41, 142 N. E. 697. there been said need not be repeated or paraphrased. The present opinion is founded on these authorities.

[3] The plaintiff as the party against whom the auditor had made his finding had a right, if seasonably asserted, to try his Motion had been case before the court. made for entry of judgment in accordance a month with the auditor's report and elapsed. The order of the judge does not state that there was a hearing on that motion; the docket entries do not state that there was such hearing. The only hearing disclosed by the record was on the plaintiff's motion for a trial by jury. The statement

in the order of the judge, to the effect that there was a hearing on one motion and that another motion was disposed of without any statement that there was a hearing, carries the implication that there was no hearing on the second motion. Moreover, there is a statement in the order that the second motion was denied, "no alternative request having been presented that the cause be heard by a judge sitting without a jury." Those words import, not a finding or ruling after hearing, but a ruling without hearing that, because of the plaintiff's failure to file an alternative request, the motion for judgment had been granted.

The record thus presents error in two as

pects:

1. There ought to have been a hearing on the motion for judgment on the auditor's report. That motion was not an incidental or subsidiary matter. It was an essential step in the progress of the case. The judge had no authority to grant the motion without giving the plaintiff, against whom it was directed, opportunity to be heard. Parker v. Lewis J. Bird Co., 221 Mass. 422, 109 N. E. 368; Savage v. Welch, 246 Mass. 170, 184, 140 N. E. 787. The utmost action which

could be taken on such a motion without a

hearing would be, as indicated by the rule itself, to cause notice to be given to the opreasonable time cause was shown to the contrary, judgment would be entered in accordance with the motion. But the record shows

posite party that, unless within a specified

no such order.

[4] 2. The reason given for granting that The rule does not remotion was wrong. quire that a party, against whom an auditor has made findings, must make an "alternative request" for further hearing before the court when motion for judgment has been filed. The most that is required, and this only by inference, is that he seasonably assert his right to such hearing. In the absence of any requirement on the subject in the rule, that right is seasonably asserted if made when the motion for judgment is heard. But here the implication of the record is that there was no such hearing. If a party fails, upon such hearing, to indicate a desire for a trial on the merits, but remains silent on that subject, a question different from that here raised would be presented.

The state of the record in the case at bar distinguishes it from Allis-Chalmers Manuf. Co. v. Frank Ridlon Co., 248 Mass. 41, 142 N. E. 697.

Order for judgment reversed.

LAVOINE v. CASEY.

(146 N.E.)

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

dissolution and that the account sought is a formal and final account. On the filing of the answer the case was referred to a master, who heard the parties and their witnesses and duly made a report to the superior court.

1. Partnership 273-Partner's refusal of accounting in violation of partnership agree- From the report it appears that the plainment held to authorize notice of dissolution. tiff and defendant in July, 1920, orally enDefendant partner's denial of plaintiff co- tered into the partnership agreement which partner's request for accounting under partner- was reduced to writing on January 1, 1921. ship agreement justified notice of dissolution This agreement provided in substance that under St. 1922, c. 486, § 32, and warranted the copartnership should be for a term of plaintiff's refusal to act further in conducting five years from January 1, 1921. It contained the following provisions:

firm's business.

2. Partnership 86-In absence of agreement, partners share profits and losses equally.

In absence of agreement, express or implied, partners share equally in profits and

losses.

3. Partnership 305-On dissolution, partners are entitled to repayment of capital contributed.

On dissolution, in absence of agreement, partners are entitled to repayment of capital

contributed.

4. Partnership 305-Agreement held to take case out of rule of partners sharing profits and losses equally.

Agreement providing for payment to defendant partner of all money advanced by him in excess of his contribution of capital, and for equal division of remaining assets, held to take case out of general rule that partners share equally in profits and losses, and on dissolution are entitled to repayment of capital

contributed.

5. Partnership 305-Partner held entitled on accounting, to share in sum contributed to capital by copartner.

In accounting at end of first year, contention of defendant partner that plaintiff partner could not share in named sum contributed to partnership, because he had not furnished his skill and experience for remainder of five-year term, could not be sustained.

"Second. The said Charles J. Casey has paid into said partnership the sum of one thousand ($1,000) dollars as his contribution to the capital, and the said Alfred H. Lavoine is to contribute his skill and experience as his share of the capital.

"Third. If the said Charles J. Casey shall furnish to the partnership capital in excess of said sum of one thousand dollars ($1,000), he shall receive interest on same at the rate of 6 per cent. per annum, the partnership is to pay back to the said Charles J. Casey 20 per cent. of such excess at the end of each fiscal year before any profits are divided and the said Charles J. Casey shall be paid back all of such excess before the partnership term of five years expires."

"Eighth. Upon the dissolution of this partnership the said Charles J. Casey shall be first paid in full for all money advanced by him to the partnership in excess of the sum of one thousand ($1,000) dollars referred to in section second and interest, thereafter the remaining assets after payment of any indebtedness shall be liquidated and equally divided between the said Alfred H. Lavoine and the said Charles J. Casey."

"Sixth. Accurate books of account shall be kept showing the condition of the firm business and finances and at the end of each fiscal year beginning December 31, 1921, an accounting shall be had between the partners and each partner shall receive one-half of the net profits for that year and shall be liable for onehalf of any losses that may be sustained in

Appeal from Superior Court, Suffolk Coun- said partnership business." ty; Morton, Judge.

Bill for accounting by Alfred H. Lavoine against Charles J. Casey, copartners under the firm name of the Lavoine & Casey Company. Decree for accounting on master's report, and defendant appeals. Affirmed.

F. Burke and J. P. Bell, both of Boston, for appellant.

J. E. Riley, of Hopkinton, for appellee.

PIERCE, J. This is a bill in equity for an accounting between the plaintiff, Alfred H. Lavoine, and the defendant, Charles J. Casey, copartners in the business of wheelrighting and body work in Boston, under the firm name of Lavoine & Casey Company. While the bill does not so allege, all parties agree that it is to be taken that there is a

The master found that the business of

the firm was started on July 15, 1920; that
the plaintiff was a skilled wheelright; that
the defendant was not; that it was arranged
between them that the defendant should
keep the cash account and the plaintiff
should keep the daybook and the ledger;
that this was done throughout the partner-
ship; that the books of the firm, including
cashbook, daybook, ledger, check book and
the bank statements, were at all times acces-
sible to both partners; that between July
15, 1920, and November 11, 1920, the defend-
ant contributed $413.37 in excess of the sum
of $1,000; that shortly after December 31,
1921, the plaintiff asked the defendant to
have an accounting; that the defendant took
no action toward an accounting, claimed there

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
146 N.E.-16

was nothing for which to account, objected Carpenter, 122 Mich. 681, 81 N. W. 1932, and to the price of $20 (which an accountant Krigbaum v. Vindquest, 10 Neb. 435, 6 N. brought by the plaintiff said he would | W. 631, cited in the defendant's brief, are not charge), and neglected and refused to join in point. We have examined all questions the plaintiff in an accounting for the year argued on the defendant's brief and find no 1921. The master further found that the error which warrants a recasting of the acplaintiff on a number of occasions in Jan- count. uary, 1923, asked for an accounting and brought another accountant to the place of business of the firm; that the defendant said there was nothing to account for, objected to the expense of an accountant, and neglected and refused to join the plaintiff in an accounting for the year 1922.

[1] The right to an accounting between the partners, at the time when the plaintiff requested the defendant to have an accounting, was secured to each of them by the sixth clause of their agreement, supra. This right was denied to the plaintiff and the first question presented on the record is, Was the plaintiff acting within his rights in notifying the defendant that "the partnership heretofore existing * * * is *** dissolved, and from and after the day and year above written, February 19, 1923, will be no longer of any force or effect"?

St. 1922, c. 486, § 32, provides:

"(1) On application by or for a partner the court shall decree a dissolution whenever:

Decree affirmed.

BLAUFARB v. DROOKER.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

1. Landlord and tenant 167(8)-Tenant's visitor had no greater rights in use of premises than had tenant.

fendant had no greater rights in use of premVisitor of tenant in building owned by deises than had tenant, to whom defendant owed no duty, except to maintain passageway in same condition as at date of letting.

2. Landlord and tenant 167(8)—In absence of evidence that passageway was lighted when tenancy began, failure thereafter of landlord to light it or reconstruct stairs was not neg. ligence.

Where plaintiff was injured while in unlighted passageway, while visiting, by invita(d) A partner wilfully or persistently tion, tenant of defendant in defendant's buildcommits a breach of the partnership agree-ing, in absence of evidence that passageway was ment."

The parties, by their formal action, have made an accounting to be had at the end of each fiscal year a material part of their contract. The persistent refusal of the defendant to abide by and perform the obligations voluntarily assumed by him to be performed justified the notice of the plaintiff to the defendant, and warranted his refusal to act further with the defendant in conducting the business of the firm. Moore v. Price, 116 Ala. 247, 22 So. 531; Abbot v. Johnson, 32 N. H. 9; Durbin v. Barber, 14 Ohio, 311.

[2-5] In the absence of an agreement, express or implied, partners share equally in the profits and losses of the business; and on dissolution are entitled to the repayment of the capital contributed. Whitcomb v. Converse, 119 Mass. 38, 20 Am. Rep. 311. The eighth clause of the partnership agreement takes the case out of the general rule, and provides for the payment to the defendant of all money advanced by him in excess of his contribution of $1,000 to the capital of the firm, for payment of any firm indebtedness, and finally for the equal division of the remaining assets. The contention of the defendant that the plaintiff cannot share in the $1,000 because he has not furnished his skill and experience for the remainder of the term is not supported in reason or by the cases. Karrick v. Hannaman, 168 U. S. 328, 339, 18 S. Ct. 135, 42 L. Ed. 484; Clink v.

lighted when tenancy began, failure of defendant thereafter to light it, or to reconstruct stairs, furnished no proof of negligence. 3. Landlord and tenant 167(1)-Tenant did not become landlord's agent to light hallway.

Where landlord removed gas jet in hall under agreement, in consideration of reduction of rent to tenant, that latter was to place lantern therein, tenant did not thereby become owner's agent to keep hallway lighted.

4. Landlord and tenant 169 (3)-Excluding

evidence that stairs had become worn held proper.

In action for personal injuries while visiting tenant of defendant in latter's building, evidence that, when defendant became owner, stairs had become so worn that he made repairs, and steps had ridges in them, was inadmissible, under allegation that stairway and passage were improperly lighted, narrow, abrupt, and dangerous.

5. Appeal and error 959 (2)-Denial of motion to substitute declaration held not available to plaintiff.

Denial of plaintiff's motion to "substitute her declaration," to authorize admission of certain evidence, raised no question of law, where she had been given option to amend with continuance, or to abide by original declaration, and she elected to go to jury.

Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.

(146 N.E.)

Action of tort by Helen Blaufarb against | it had been lighted, the accident would have Nathan L. Drooker to recover for personal happened, also was one of fact. injuries, sustained when lawfully on defendant's premises. Verdict was directed for defendant, and plaintiff excepts. Exceptions overruled.

W. B. Keenan, of Boston (S. L. Solomont, of Roxbury, on the brief), for plaintiff.

J. T. Connolly, of Boston, for defendant.

[1, 2] But the plaintiff had no greater rights in the use of the premises than the tenant, to whom the defendant owed no duty except to maintain the entry and stairs in the same condition they were in at the date of letting. In the absence of evidence that the little hallway or entry was lighted when the tenancy began, the failure of the defendant thereafter to light it, or to reconstruct the stairs, furnishes no proof of negligence. Marley v. Wheelwright, 172 Mass. 530, 52 N. E. 1066; Jordan v. Sullivan, 181 Mass. 348, 63 N. E. 909; Taylor v. Finnigan, 189 Mass.

BRALEY, J. It was undisputed that the defendant was the owner of the premises and retained possession and control of the passageway where the plaintiff was injured while visiting by invitation one Mrs. Hoffman, a tenant of the defendant, whose apart-568, 76 N. E. 203, 2 L. R. A. (N. S.) 973; ment was on the first floor of the building. The plaintiff, whose due care is not in question, entered it at 5 o'clock in the afternoon of a December day. On her evidence, which was the only testimony at the trial, it could be found that there was a long entry leading from Mrs. Hoffman's kitchen to an inner door, which swung outward upon a short hallway without windows, where there were four or five steps about four feet wide leading to another door opening upon a sidewalk. The small hallway between the doors was so dark that she could not see her way as she came out of the apartment, and the light in the long hallway did not reach the flight of steps where the accident happened. The first door to which she came, leading to the short flight of steps, was closed, as well as the street door. Upon coming to the first door, she tried to open it with her right hand, and, with her left hand holding the door, started to walk. with one foot, and then the other foot. "It was slippery and dark and she could not see," and "fell head first, striking her head and back." There was no light "and she did not know of any other way to get out of the premises other than through the front door."

The evidence tended to support the declaration, which alleged "that on the first floor of the said premises is a narrow entry or passageway, leading to a certain stairway, which stairway descends to door of said building, in the front; that the entry, or passageway, and stairway is provided by the defendant for the use of the tenants, their guests and visitors, to be used by them as incident to the occupation of said premises; that said defendant has the exclusive control of the said entry or passageway and stairway, and is bound to maintain and keep same in good condition; that said entry or passageway and stairway were improperly lighted, narrow, abrupt and dangerous; that the said defendant failed and unreasonably neglected to render the same safe for the use of the said tenants, their guests and visitors. * # "" The jury could find that the little hall which the plaintiff described was unlighted, and the question whether, if

Faxon v. Butler, 206 Mass. 500, 92 N. E. 707, 138 Am. St. Rep. 405, 19 Ann. Cas. 666; Polansky v. Heller, 241 Mass. 484, 135 N. E. 572. [3] The plaintiff however having failed to establish a cause of action, offered at the close of the evidence to prove, that when Mrs. Hoffman became a tenant there was a gas jet in the hallway and gas fixtures in the entryway between the doors where the plaintiff was injured, and that after the defendant became the owner he removed them under an agreement that in consideration of a reduction of rent Mrs. Hoffman was to place a lantern in the large hallway, and on the night in question it had been turned so low that it did not illuminate the small entryway. But under this agreement Mrs. Hoffman was not the defendant's agent; she still was his tenant. If the little entry had become unsafe for want of sufficient light, and she, in using it, had been injured, the modified contract of rental was the contract under which she occupied, and there could have been no recovery. The plaintiff is in no better position, for reasons previously stated.

[4, 5] The plaintiff further offered to show, that when the defendant became the owner, the stairs had become so worn that he made repairs, and the steps "were worn where people walked upon them, so that there were ridges in them." But this ground of liability was not open under the declaration. The allegation that the stairway and passage "were improperly lighted, narrow, abrupt and dangerous," on which the plaintiff relies in argument, does not cover an allegation that the stairs where the plaintiff fell had become unsafe for want of suitable repair which it was the duty of the defendant to make. The offers of proof were rightly excluded and the denial of the plaintiff's motion to "substitute her declaration" raises no question of law. She was given the option to amend with a continuance of the case, because the defendant's counsel was not prepared to meet this new issue, or to abide by the original declaration, and having elected to go to the jury, the judge properly ordered a verdict for the defendant. Exceptions overruled.

GRAY v. BOSTON ELEVATED RY. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

Carriers

320 (19)-Whether sudden stopping of elevated train was negligence held question for jury.

Whether sudden stopping of elevated train was negligence, causing injury to passenger, held, under evidence, question for jury.

Report from Superior Court, Suffolk County; H. A. Dubuque, Judge.

Action of tort by Marie E. Gray against the Boston Elevated Railway Company to recover for personal injury alleged to have been received while a passenger on defendant's train. Verdict directed for defendant, and case reported. Judgment for plaintiff. Chamberlin & Bosson, of Boston, for plain

tiff.

L. Powers, of Boston, for defendant.

PIERCE, J. This is an action of tort to recover damages for personal injuries, received by the plaintiff while travelling as a passenger upon an elevated train of the defendant. At the conclusion of the evidence, on written motion the judge directed a verdict for the defendant and reported the case to this court on the following stipulation of the parties:

"1. If the order of the court directing a verdict for the defendant was right, judgment is to be entered for the defendant.

"2. If the order of the court directing a verdict for the defendant was wrong, judgment is to be entered for the plaintiff in the sum of five hundred dollars ($500)."

The reported evidence warranted a finding that the plaintiff, with one Morrison, on February 20, 1922, became a passenger of the defendant at Dover street, on a train going towards the Dudley street station; that on entering the car she thought she could get a seat but people crowded so she was unable to do so or to take hold of a strap; that she and Morrison stood near the center door with other passengers, all packed in tight; that the car was proceeding along at a fairly good clip when all of a sudden it stopped with a "terrible jerk," as if it "must have struck something to have it stop so suddenly." "There was a noise as though it bumped into something." It further appeared that the stop threw the plaintiff "one way and back the other way," and every one partly out of their seats; those who were standing swayed forward and backward and had all they could do to avoid falling.

The defendant contends as there was no direct evidence of negligence of the defendant that the verdict was directed rightly, on the

authority of Timms v. Old Colony Street
Railway, 183 Mass. 193, 66 N. E. 797; Wein-
schenk v. New York, New Haven & Hart-
ford Railroad, 190 Mass. 250, 76 N. E. 662;
McGann v. Boston Elevated Railway, 199
Mass. 446, 85 N. E. 570, 18 L. R. A. (N. S.)
506, 127 Am. St. Rep. 509; Work v. Boston
Elevated Railway, 207 Mass. 447, 85 N. E.
570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep.
509; Young v. Boston & Northern Street
Railway, 213 Mass, 267, 100 N. E. 541, 50
L. R. A. (N. S.) 450, Ann. Cas. 1914A, 635;
Rust v. Springfield Street Railway, 217 Mass.
116, 104 N. E. 367; and Stangy v. Boston
Elevated Railway, 220 Mass. 414, 107 N. E.
933. The cases relied on largely had to do
with accidents to passengers which resulted
from the sudden stopping and starting up of
street cars. "The possibility of an electric
car giving a jerk is an incident of travel
which every passenger must expect."
Gann v. Boston Elevated Railway, 199 Mass.
446, 448, 85 N. E. 570, 571 (18 L. R. A. [N. S.]
506, 127 Am. St. Rep. 509). The decisions
are based upon the practical application of
the rule that street railway companies, and
others in the use of the public ways, have
and owe toward each other correlative rights
and obligations.

Mc

The considerations which determined the judgments in the cases cited, and in similar cases, are not applicable where the railroad is operated upon its own private location. Bell v. New York, New Haven & Hartford Railroad, 217 Mass. 408, 104 N. E. 963; Stangy v. Boston Elevated Railway, supra. In such a case there is a duty of explanation which the defendant must assume if the incident is one such as in the ordinary course of things does not happen if those who have the management of the train use proper care. Magee v. New York, New Haven & Hartford Railroad, 195 Mass. 111, 80 N. E. 689. The evidence should have been submitted to the jury. In accordance with the terms of the report, "judgment is to be entered for the plaintiff in the sum of five hundred dollars ($500)."

So ordered.

MCPHERSON v. BOARD OF STREET
COM'RS OF CITY OF BOSTON.
(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 30, 1925.)

1. Livery stable and garage keepers 42-
Compliance with notice held not condition
precedent to validity of building permit.

Where permit under St. 1913, c. 577, § 3, as amended by St. 1914, c. 119, § 2, to erect garage, was conditioned on license being approved by building commissioner, compliance with notice did not constitute condition precedent to its validity.

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