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(146 N.E.) the water off much faster than a "compres- On all the evidence the motion for a dision cock," which turns by hand, if one lets rected verdict for the defendant should have go of it quick; such a faucet has been long been granted, and it is now ordered under in common use. When the faucet is turned G. L. C. 231, § 122. off sharply, the pipe resists “in the weakest Exceptions sustained. part of the pipes in the building," in this case "where the slit came."

There was no evidence when the plumbing was installed in the building. There was

NORCROSS v. HASKELL. evidence that a "good heavy lead pipe is good for 25 or 30 years” and “ought to go its (Supreme Judicial Court of Massach asetts. full limit"; that at the time of the leak in

Suffolk. Jan. 30, 1925.) the High street district there was a water 1. Appeal and error Cam 107-Appeal from orgauge pressure of 85 pounds, and that this

der entering judgment on auditor's finding pressure was greater by 5 or 6 pounds than properly brings case for review. it had been, at a time not stated. There

Where defendant under superior court rule was no evidence of the ability of the pipe to 30 moved for judgment on auditor's finding, apsustain the water pressure of 85 pounds or to peal from order granting judgment thereon the effect that it was not sufficiently heavy properly brings case to Supreme Judicial Court to do so safely or that a pressure reducing for review. valve was required, nor positive evidence 2. Jury C25(6)-Disposition of motion to be that there was not any reducing tank there allowed to file late claim for jury trial rests in use. The plumber cut out the place where in discretion, the slit or crack bad occurred, pulled the pipe After return of auditor's finding and entry together and soldered it, making a joint. of judgment thereon, on defendant's motion,

On the undertaking of the plaintiff to disposition of plaintiff's motion to be allowed prove "leaks in the same pipe from which to file late claim for jury trial rests within ju

dicial discretion. this leak came," subject to the exception of the defendant, the judge allowed the 3. Reference on 100(6)-Denial of hearing on plaintiff to introduce evidence that water auditor's report held erroneous. leaked through to the ceiling at the same As motion for hearing on auditor's report place at a time in the summer of 1921, and was essential step in progress of case, judge again at a time in the summer of 1922, and was unauthorized to grant it without giving again at another less definite time.

party against whom it was directed opportunity There

to be heard. was no evidence as to the cause of any one of the three leaks that occurred before Sep-4. Reference was 100(6)—Party against whom tember, 1922.

judgment is rendered on auditor's finding may [1, 2] On the evidence reported, the mo

seasonably assert right to hearing at time

motion for judgment is heard. tion to strike out all th evidence relating

Superior court rule 30 does not require to prior leaks should have been granted; and that party against whom auditor has made the question, whether the prior leaks were findings must make alternative request for fur. "sufficiently connected” with the leak of Sep-ther hearing before court when motion for tember 30, 1922, should have been determined judgment has been filed; he being required only by the judge and not submitted as a question seasonably to assert his right to bearing, which of fact to the jury. It is the province of the right is seasonably asserted, if made when mo

tion for judgment is heard. judge who presides at a jury trial to decide all questions of fact which may be necessary to Appeal from Superior Court, Suffolk Coundetermine the question of the admissibility of ty; Wait, Judge. offered evidence, and such preliminary question of fact should not be submitted to the

Action of contract by Eliza J. Norcross jury, unless the determination of the pre- against Benjamin S. Haskell

, executor in the liminary fact falls within certain established commonwealth of Massachusetts under the exceptions to the general rule, of which the will of Letitia M. Cross, late of New Hamp case at bar is not one. Gorton v. Hadsell,

shire, to recover on a note of decedent made 9 Cush. 508; Commonwealth v. Reagan, 175 to plaintiff's order. Judgment entered for Mass. 335, 336, 56 N. E. 577, 78 Am. St. defendant on auditor's finding, and plaintiff Rep. 496; Ames y. New York, New Haven &

appeals. Reversed. Hartford Railroad, 221 Mass. 304, 305, 108

Curtin, Poole & Allen and Asa S. Allen, all

of Boston, for appellant. [3] We think the evidence relating to the Stone & Jones, Eliot N. Jones, and A, B. effect of turning on or off the self-closing Tyler, all of Boston, for appellee. faucet and to the increase in pressure in city mains, in the absence of evidence that RUGG, C. J. This action of contract was the leak was attributable to one or both referred to an auditor. He filed a report in of these possible causes, was inadmissible. favor of the defendant. The defendant filed For other cases see same topic and

KEY-NUMBER in all Key-Numbered Digests and Indexes

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N, E. 920.

a motion that judgment be entered in his fa-, in the order of the judge, to the effect that vor in accordance with the auditor's report. there was a hearing on one motion and that This motion manifestly was framed upon another motion was disposed of without any Rule 30 of the superior court (1922), the ma- statement that there was a hearing, carries terial part of which is in these words: the implication that there was no hearing on

“On the coming in of the auditor's report, the second motion. Moreover, there is a either party may move for entry of judgment statement in the order that the second mo according to said report; and the court, there. tion was denied, "no alternative request hav. upon, shall order such judgment to be entered, ing been presented that the cause be heard unless, within a time stated, cause appears or by a judge sitting without a jury.” Those is shown to the contrary. If cause appears or is shown, the court may hear the parties and hearing, but a ruling without hearing that,

words import, not a finding or ruling after frame appropriate issues for the court or jury, because of the plaintiff's failure to file an upon which the trial shall be had."

alternative request, the motion for judgment The motion for judgment was filed on had been granted. January 15, 1924. On it an order of a judge

The record thus presents error in two asof the superior court was made in these pects: words:

1. There ought to have been a hearing on “February 16, 1924. No jury claim having the motion for judgment on the auditor's rebeen filed, plaintiff's motion to be allowed to port. That motion was not an incidental or file jury claim having this day been presented subsidiary matter. It was an essential step and heard by me and denied, and no alterna- | in the progress of the case. The judge had tive request having been presented that the no authority to grant the motion without cause be heard by a judge sitting without jury, giving the plaintiff, against whom it was dithe within motion is allowed and judgment or- rected, opportunity to be heard. Parker v. dered entered for the defendant."

Lewis J. Bird Co., 221 Mass. 422, 109 N. E. [1] The plaintiff's appeal from this order 368; Savage v. Welch, 246 Mass. 170, 184.

140 N. E. 787. The utmost action which brings the case here properly. Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, could be taken on such a motion without a 134, 137 N. E. 169.

hearing would be, as indicated by the rule [2] The denial of the plaintiff's motion to itself

, to cause notice to be given to the op be allowed to file late a claim for trial by posite party that, unless within a specified jury presents no question of law. Its dispo- reasonable time cause was shown to the consition rested within sound judicial discre-trary, judgment would be entered in accordtion. Bailey v. Joy, 132 Mass. 356; Cleverly ance with the motion. But the record shows v. O'Connell, 156 Mass. 88, 30 N. E. 88.

no such order. The rule of the superior court here in

[4] 2. The reason given for granting that

motion was wrong. volved has recently been expounded and in

The rule does not re terpreted. Farnham v. Lenox Motor Car Co., quire that a party, against whom an auditor 229 Mass. 478, 118 N. E. 874; Sherry v. Lit-has made findings, must make an “alternatlefield, 232 Mass. 220, 122 N. E. 300; Wheel- tive request” for further hearing before the er v. Tarullo, 237 Mass. 306, 129 N. E. 610; court when motion for judgment has been Allis-Chalmers Manuf. Co. v. Frank Ridlon filed. The most that is required, and this Co., 248 Mass. 41, 142 N. E. 697. What has only by inference, is that he seasonably as there been said need not be repeated or para- sert his right to such hearing. In the abphrased. The present opinion is founded on

sence of any requirement on the subject in these authorities.

the rule, that right is seasonably asserted if [3] The plaintiff as the party against made when the motion for judgment is whom the auditor had made his finding had heard. But here the implication of the rec a right, if seasonably asserted, to try his ord is that there was no such hearing. If a case before the court. Motion had been party fails, upon such hearing, to indicate a made for entry of judgment in accordance desire for a trial on the merits, but remains with the auditor's report and a month silent on that subject, a question different elapsed. The order of the judge does not from that here raised would be presented. state that there was a hearing on that mo

The state of the record in the case at bar tion; the docket entries do not state that distinguishes it from Allis-Chalmers Manuf. there was such hearing. The only hearing Co. v. Frank Ridlon Co., 248 Mass. 41, 142 N. disclosed by the record was on the plaintiff's E. 697. motion for a trial by jury. The statement

Order for judgment reversed.

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(146 N.E.)

dissolution and that the account sought is LAVOINE V. CASEY.

a formal and final account. On the filing of

the answer the case was referred to a mas(Supreme Judicial Court of Massachusetts.

ter, who heard the parties and their witnessSuffolk. Jan. 30, 1925.)

es and duly made a report to the superior 1. Partnership On 273-Partner's refusal of court. 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 en

Defendant 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 confirm's business.

tained the following provisions: 2. Partnership em86In absence of agreement, partners share profits and losses “Second. The said Charles J. Casey has paid equally,

into said partnership the sum of one thousand In absence of agreement, express or im- ($1,000) dollars as his contribution to the capplied, partners share equally in profits and ital, and the said Alfred H. Lavoine is to conlosses.

tribute his skill and experience as his share

of the capital. 3. Partnership m 305–On dissolution, part- “Third. If the said Charles J. Casey shall ners are entitled to repayment of capital furnish to the partnership capital in excess of contributed.

said sum of one thousand dollars ($1,000), he On dissolution, in absence of agreement, shall receive interest on same at the rate of partners are entitled to repayment of capital 6 per cent. per annum, the partnership is to contributed.

pay back to the said Charles J. Casey 20 per

cent. of such excess at the end of each fiscal 4. Partnership Om305–Agreement held to take year before any profits are divided and the said

case out of rule of partners sharing profits Charles J. Casey shall be paid back all of such and losses equally.

excess before the partnership term of five years Agreement providing for payment to de. expires.". fendant partner of all money advanced by him

"Eighth. Upon the dissolution of this partin excess of his contribution of capital, and nership the said Charles J. Casey shall be first for equal division of remaining assets, held to paid in full for all money advanced by him to take case out of general rule that partners the partnership in excess of the sum of one share equally in profits and losses, and on dis- thousand ($1,000) dollars referred to in secsolution are entitled to repayment of capital tion second and interest, thereafter the remaincontributed

ing assets after payment of any indebtedness

shall be liquidated and equally divided between 5. Partnership ww 305-Partner held entitled the said Alfred H. Lavoine and the said Charles

on accounting, to share in sum contributed to J. Casey."
capital by copartner.

“Sixth. Accurate books of account shall be In accounting at end of first year, conten- kept showing the condition of the firm business tion of defendant partner that plaintiff partner and finances and at the end of each fiscal year could not share in named sum contributed to beginning December 31, 1921, an accounting partnership, because he had not furnished his shall be had between the partners and each skill and experience for remainder of five-year partner shall receive one-half of the net profterm, could not be sustained.

its for that year and shall be liable for one

half of any losses that may be sustained in Appeal from Superior Court, Suffolk Coun- said partnership business.” ty; . Morton, Judge.

The master found that the business of Bill for accounting by Alfred H. Lavoine the firm was started on July 15, 1920; that against Charles J. Casey, copartners under the plaintiff was a skilled wheelright; that the firm name of the Lavoine & Casey Com-) the defendant was not; that it was arranged pany. Decree for accounting on master's re- between them that the defendant should port, and defendant appeals. Affirmed.

keep the cash account and the plaintiff F. Burke and J. P. Bell, both of Boston, for should keep the daybook and the ledger; appellant.

that this was done throughout the partnerJ. E. Riley, of Hopkinton, for appellee. ship; that the books of the firm, including

cashbook, daybook, ledger, check book and PIERCE, J. This is a bill in equity for the bank statements, were at all times accesan accounting between the plaintiff, Alfred sible to both partners; that between July H. Lavoine, and the defendant, Charles J. 15, 1920, and November 11, 1920, the defendCasey, copartners in the business of wheel- ant contributed $413.37 in excess of the sum righting and body work in Boston, under the of $1,000; that shortly after December 31, firm name of Lavoine & Casey Company. 1921, the plaintiff asked the defendant to While the bill does not so allege, all parties have an accounting; that the defendant took agree that it is to be taken that there is a 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

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was nothing for which to account, objected Carpenter, 122 Mich. 681, 81 N. W.932, 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

Decree affirmed. 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

BLAUF ARB V. DROOKER. and refused to join the plaintiff in an accounting for the year 1922.

(Supreme Judicial Court of Massachusetts. [1] The right to an accounting between the

Suffolk. Jan. 30, 1925.) partners, at the time when the plaintiff requested the defendant to have an accounting,. Landlord and tenant Em 167(8)–Tenant's

visitor had no greater rights in use of premwas secured to each of them by the sixth

ises than had tenant. clause of their agreement, supra. This right was denied to the plaintiff and the first fendant had no greater rights in use of prem

Visitor of tenant in building owned by dequestion presented on the record is, was the ises than had tenant, to whom defendant owed plaintiff acting within his rights in notify- no duty, except to maintain passageway in ing the defendant that “the partnership here- same condition as at date of letting. tofore existing * * * is * * * dissolved, and from and after the day and year above writ- 2. Landlord and tenant Omw 167(8)-in absence ten, February 19, 1923, will be no longer of

of evidence that passageway was lighted when any force or effect”?

tenancy began, failure thereafter of landlord St. 1922, c. 486, § 32, provides :

to light it or reconstruct stairs was not neg.

ligence. (1) On application by or for a partner the

Where plaintiff was injured while in uncourt shall decree a dissolution whenever: lighted 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."

lighted when tenancy began, failure of defendThe parties, by their formal action, have ant thereafter to light it, or to reconstruct

stairs, furnished no proof of negligence. made an accounting to be had at the end of each fiscal year a material part of their con- 3. Landlord and tenant Om 167(1)-Tenant did tract. The persistent refusal of the defend not become landlord's agent to light hallway. ant to abide by and perform the obligations

Where landlord removed gas jet in ball unvoluntarily assumed by him to be performed der agreement, in consideration of reduction justified the notice of the plaintiff to the de- of rent to tenant, that latter was to place lanfendant, and warranted his refusal to act tern therein, tenant did not thereby become further with the defendant in conducting owner's'agent to keep hallway lighted. the business of the firm, Moore v. Price, 116 Ala. 247, 22 So. 531 ; Abbot v. Johnson, 4. Landlord and tenant Omw 169(3)–Excluding

evidence that stairs had become worn held 32 N. H. 9; Durbin v. Barber, 14 Ohio, 311.

proper, [2-5] In the absence of an agreement, ex

In action for personal injuries while visitpress or implied, partners share equally in ing tenant of defendant in latter's building, evithe profits and losses of the business; and dence that, when defendant became owner, on dissolution are entitled to the repayment stairs had become so worn that he inade reof the capital contributed. Whitcomb v. pairs, and steps had ridges in them, was inadConverse, 119 Mass. 38, 20 Am. Rep. 311. missible, under allegation that stairway and The eighth clause of the partnership agree passage

improperly lighted, narrow, ment takes the case out of the general rule, abrupt, and dangerous. and provides for the payment to the defend- 5. Appeal and error 959(2)—Denial of moant of all money advanced by him in excess

tion to substitute declaration held not availa. of his contribution of $1,000 to the capital of ble to plaintiff. the firm, for payment of any firm indebted

Denial of plaintiff's motion to "substitute ness, and finally for the equal division of her declaration,” to authorize admission of certhe remaining assets. The contention of the tain evidence, raised no question of law, where defendant that the plaintiff cannot share in she had been given option to amend with conthe $1,000 because he has not furnished his tinuance, or to abide by original declaration, skill and experience for the remainder of and she elected to go to jury. the term is not supported in reason or by the cases. Karrick v. Hannaman, 168 U. S. 328, Exceptions from Superior Court, Suffolk 339, 18 S. Ct. 135, 42 L. Ed. 484; Clink v.] County; W. H. Whiting, Judge.

were

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

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(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 defend. [1, 2] But the plaintiff had no greater ant's premises. Verdict was directed for de- rights in the use of the premises than the fendant, and plaintiff excepts. Exceptions tenant, to whom the defendant owed no duty overruled.

except to maintain the entry and stairs in W. B. Keenan, of Boston (S. L. Solomont, the same condition they were in at the date of Roxbury, on the brief), for plaintiff.

of letting. In the absence of evidence that J. T. Connolly, of Boston, for defendant.

the little hallway or entry was lighted when

the tenancy began, the failure of the defendBRALEY, J. It was undisputed that the ant thereafter to light it, or to reconstruct defendant was the owner of the premises and the stairs, furnishes no proof of negligence. retained possession and control of the pas- Marley v. Wheelwright, 172 Mass. 530, 52 sageway where the plaintiff was injured N. E. 1066; Jordan v. Sullivan, 181 Mass. 348, while visiting by invitation one Mrs. Hoff-63 N. E. 909; Taylor v. Finnigan, 189 Mass. man, 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. Faxon v. Butler, 206 Mass. 500, 92 N. E. 707, The plaintiff, whose due care is not in ques. 138 Am. St. Rep. 405, 19 Ann. Cas. 666; Poltion, entered it at 5 o'clock in the afternoon ansky v. Heller, 241 Mass. 484, 135 N. E. 572. of a December day. On her evidence, which

[3] The plaintiff however having failed to was the only testimony at the trial, it could establish a cause of action, offered at the be found that there was a long entry leading close of the evidence to prove, that when from Mrs. Hoffman's kitchen to an inner Mrs. Hoffman became a tenant there was a door, which swung outward upon a short gas jet in the hallway and gas fixtures in the hallway without windows, where there were entryway between the doors where the plainfour or five steps about four feet wide lead- tiff was injured, and that after the defend. ing to another door opening upon a side- ant became the owner he removed them unwalk. The small hallway between the doors der an agreement that in consideration of a was so dark that she could not see her way reduction of rent Mrs. Hoffman was to place as she came out of the apartment, and the a lantern in the large hallway, and on the light in the long hallway did not reach the night in question it had been turned so low flight of steps where the accident happened. that it did not illuminate the small entryThe first door to which she came, leading to way. But under this agreement Mrs. Hoffthe short flight of steps, was closed, as well man was not the defendant's agent; she still as the street door. Upon coming to the first was his tenant. If the little entry had bedoor, she tried to open it with her right hand, come unsafe for want of sufficient light, and and, with her left hand holding the door, she, in using it, had been injured, the modistarted to walk. with one foot, and then the fied contract of rental was the contract unother foot. "It was slippery and dark and der which she occupied, and there could have she could not see," and "fell head first, strik- been no recovery. The plaintiff is in no beting her head and back.” There was no light ter position, for reasons previously stated. "and she did not know of any other way to [4, 5] The plaintiff further offered to show, get out of the premises other than through that when the defendant became the owner, the front door."

the stairs had become so worn that he made The evidence tended to support the decla- repairs, and the steps “were worn where peoration, which alleged "that on the first floor ple walked upon them, so that there were of the said premises is a narrow entry or ridges in them.” But this ground of liapassageway, leading to a certain stairway, bility was not open under the declaration. which stairway descends to door of said The allegation that the stairway and passage building, in the front; that the entry, or “were improperly lighted, narrow, abrupt passageway, and stairway is provided by the and dangerous,” on which the plaintiff relies defendant for the use of the tenants, their in argument, does not cover an allegation that guests and visitors, to be used by them as the stairs where the plaintiff fell had beincident to the occupation of said premises; come unsafe for want of suitable repair that said defendant has the exclusive con- which it was the duty of the defendant to trol of the said entry or passageway and make. The offers of proof were rightly exstairway, and is bound to maintain and keep cluded and the denial of the plaintiff's mosame in good condition; that said entry or tion to "substitute her declaration” raises no passageway and stairway were improperly question of law. She was given the option lighted, narrow, abrupt and dangerous ; that to amend with a continuance of the case, bethe said defendant failed and unreasonably cause the defendant's counsel was not preneglected to render the same safe for the pared to meet this new issue, or to abide by use of the said tenants, their guests and vis- the original declaration, and having elected itors.

The jury could find that to go to the jury, the judge properly ordered the little hall which the plaintiff described a verdict for the defendant. was unlighted, and the question whether, if Exceptions overruled.

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