"A. When I came over there to collect the rent, it was the 16th of July, 1923, and I came over and I met there Mrs. Hogan, and she gives me the money, $32, which I bring her the receipt, I tell her I bought this property and want to have it myself as soon as you move, even if you move out before the 13th then I will give you back as much as it is as you move out ahead of time; she said, 'Mr. Ratner, yes, as soon as I find a flat I will move out.' "Q. That was the entire conversation at that time? A. That is all." August 8, 1923, the defendant notified the plaintiff Dora Ratner, by letter, in substance that the premises in question were the property of his wife, and warned the plaintiff "to refrain from trespassing on the same." Other than may be inferred from the fact that the defendant was the husband of Mrs. Hogan, there is no evidence that he had knowledge that Mrs. Hogan paid any money as rent to the husband of one of the plaintiffs. And there is no evidence that, in making the payment she did make, she purported to act as agent for the defendant. In these circumstances it properly might have been ruled that there was evidence for the jury of a tenancy between Mrs. Hogan and the plaintiffs, beginning July 16, 1923. Twichell v. McNabb, 172 Mass: 329, 52 N. E. 388; Rogers v. Coy, 164 Mass. 391, 41 N. E. 652; Jones v. Donnelly, 221 Mass. 213, 108 N. E. 1063. But there was no sufficient evidence of a tenancy between the plaintiffs and the defendant to warrant the taking of the case from the jury and directing a verdict for the plaintiffs. Exceptions sustained. GLENNON v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 30, 1925.) Street railroads 117(5)—Evidence held insufficient to make jury question as to motorman's negligence. In action for injuries caused by trolley car pushing automobile against tip cart, whereby plaintiff was injured, evidence held insufficient to make question for jury as to motorman's negligence. Exceptions from Superior Court, sex County; F. Lawton, Judge. RUGG, C. J. This is an action to recover compensation for personal injuries, alleged to have been sustained by the plaintiff by reason of the negligence of a motorman in the employ of the defendant in operating one of its trolley cars. The case comes before us on the exception of the defendant to the denial of its motion for a directed verdict. The injuries were received about 3 o'clock on the afternoon of a September day, on a main street in Everett. The plaintiff was standing in a tip cart drawn up parallel to the right-hand curb. No question is made as to his due care. The only point to be decided is whether there was evidence of negligence on the part of the motorman of the defendant. A trolley car of the defendant, and, on its right, an automobile driven by one Norton were proceeding in the same direction along the same street and approached the tip cart from behind. There was room enough for the trolley car to pass the tip cart without hitting. There was not room for the automobile to pass the tip cart without going upon the car tracks. The overwhelming weight of evidence from witnesses called by the plaintiff and by the defendant was to the effect that the automobile, being driven at the same speed as, or slightly faster than, that of the trolley car, which was variously estimated from 8 to 15 miles an hour, was turned, in order to pass the tip cart, sharply without warning in front of the trolley so close to it that a collision was inevitable; and that, although the motorman brought his car to a stop as soon as possible, the trolley car pushed the automobile against the tip cart, whereby the plaintiff was thrown and injured. This evidence need not be narrated or further summarized. The driver of the automobile testified that at a nearby point the automobile was "abreast of the street car and pulling ahead of it going about 15 miles per hour, and the street car going about 10 or 12 miles an hour, * that there wasn't room for him to pass the tip cart without going part way out into the track, 'as I had got past him or was along about at the horse I felt this impact of the street car striking us on the left rear and threw us against the tip cart;' that when he passed the street car he was about 37 feet behind the * that he was 37 feet from rear of ash cart when he turned on to the track; that he could not say where the electric car was then; that he knew he Middle-tip cart; Action of tort by James E. Glennon against the Boston Elevated Railway Company to recover for personal injuries alleged to have been sustained by motorman's negligence. Defendant's motion to direct verdict was denied, and it excepts. Exceptions sustained. Kerwin & Reilly, of Lowell, for plaintiff. F. J. Carney and John A. Canavan, both of Boston, for defendant. * * * had just passed a street car; that he did not look behind, and did not know where the street car was when he turned; that he passed the street car more than 37 feet back from the tip cart and started to turn when 37 feet away; [that the auto had proceeded for some little distance along the inbound track before the accident," (146 N.E.) Abbott, Nay, Dane & Buffum, of Boston, for plaintiff. but he could not remember how far. When struck by defendant's street car. Defendasked whether he though he had plenty of ant's motion to direct verdict was denied, time to go between the tip cart and the elec- and it excepts. Exceptions overruled. tric car he answered, "No such thought entered my mind." The trolley car was brought to a stop within a few feet, the strongest statement in favor of the plaintiff being that its rear was 10 feet ahead of the tip cart. All this evidence in its aspect most favorable to the contention of the plaintiff fails to show that the motorman was negligent in not avoiding the collision. There is no evidence of excessive speed or want of control of the car, or inattention to duty. There was no carelessness on the part of the motorman in not anticipating that the driver of an automobile would go upon the tracks in front of the trolley car, under the circumstances here disclosed. He rightly might have assumed that no other traveler on the street would be so careless as to attempt to go through the narrow space between the trolley car and the stationary cart. The irrefutable facts shown on this record made it plain that the automobile could not have been squarely on the street railway tracks nor have proceeded along such tracks before the accident. Rizzittelli v. Vestine, 246 Mass. 391, 141 N. E. 110; Boyle v. Worcester Consolidated Street Railway, 231 Mass. 184, 120 N. E. 398; Donahue v. Massachusetts Northeastern Street Railway, 222 Mass. 233, 110 N. E. 281; Phillips v. Boston Elevated Railway, 222 Mass. 221, 110 N. E. 268; Lovett v. Scott, 232 Mass. 541, 122 N. E. 646; O'Brien v. Blue Hill Street Railway, 186 Mass. 446, 71 N. E. 951. In the opinion of a majority of the court the entry must be: Exceptions sustained. SHARP v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Middlesex County. Jan. 30, 1925.) Street railroads 117(5, 26)-Questions of due care of automobile driver and negligence of street railroad held for jury. Evidence that automobile driver, before turning onto track, looked back a distance of 50 or 60 feet and saw no trolley car, gave usual signal of purpose to turn onto track, and that car struck automobile squarely in rear, held to raise jury questions as to plaintiff's due care and defendant's negligence. Exceptions from Superior Court, Middlesex County; G. A. Sanderson, Judge. Action of tort by Samuel W. Sharp against the Boston Elevated Railway Company to recover damages to an automobile which was Charles S. Walkup, Jr., of Boston, for defendant. RUGG, C. J. There was testimony tending to show that the plaintiff, in order to pass a slow-moving truck, turned his automobile between posts supporting the elevated structure of the defendant on to its surface tracks; that before doing so he looked back a distance of 50 or 60 feet and saw no trolley car, and then put out his hand in token of intention to turn; and that, after getting upon the rails, he traveled 10 or 15 feet when the rear of the automobile was struck by a trolley car, which he had passed some distance back while it was at a standstill at a regular stopping place. The plaintiff might have been found to be in the exercise of due care. Jeddrey v. Boston Northern Street Railway, 198 Mass. 232, 84 N. E. 316; Farris v. Boston Elevated Railway, 210 Mass. The case at bar is dis585, 96 N. E. 1098. tinguishable from Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, 80 N. E. 224, in that here the circumstances do not compel the conclusion that the trolley car was in dangerous proximity when the plaintiff turned upon the tracks and that he must have been careless in not seeing it. the plaintiff used the usual signal to convey to other travelers on the street notice of his purpose to turn upon the track; that he was fully upon the rails with his automobile and traveled thereon some distance; and that there the trolley car struck his automobile squarely in the rear. These facts if found were enough to show negligence on the part of the defendant. O'Brien v. Boston Elevated Railway, 247 Mass. 253, 142 N. E. 72, and cases there collected. There was testimony tending to show that A finding for the plaintiff cannot be pronounced erroneous in law on either point. Callahan v. Boston Elevated Railway, 205 Mass. 422, 91 N. E. 1005, 18 Ann. Cas. 510; Carroll v. Boston Elevated Railway, 205 Mass. 429, 91 N. E. 525; Eustis v. Boston Elevated Railway, 206 Mass. 143, 91 N. E. 881; Hall v. Bay State Street Railway, 218 Mass. 119, 105 N. E. 434. The case at bar on this point falls just on the other side of the line from Glennon v. Boston Elevated Railway, 249 Mass. 146 N. E. 250, decided this day, where no signal was given to the motorman of the trolley car and where he had every reason to believe that no one would try to drive into the narrow space between the trolley car and the stationary tip cart. Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MITCHELL v. GRUENER et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) 1. Partnership 20-Defendant held not partner within license to use name of former owner in tailoring business. Agreement under which defendant had no word as to policy or management of firm and no interest as owner in its property, and received fixed sum per annum with no right to share in profits, and no liability to make contributions, held not to create partnership, within agreement licensing use of name of former owner of tailoring business, so long as such defendant conducted it alone or in partnership with others. 2. Partnership -Essentials stated. Under St. 1922, c. 486, a partnership is an association of two or more persons to carry on as co-owners a business for profit; it requiring voluntary contract of association for purpose of sharing profits and losses, and intention by principals to form a partnership for that purpose. [Ed. Note.-For other definitions. see Words and Phrases, First and Second Series, Partnership.] vision for the future use of the name John G. Mitchell in the terms which follow: "Said Hutchins and said Wooldridge and said Magune, or either of them, shall have the right to carry on business hereafter under the name of John G. Mitchell, so long as said Hutchins, or said Wooldridge, or said Magune, shall live and shall be engaged in carrying on said business, either alone or in partnership with others; but not more than one business shall be carried on under the name of John G. Mitchell at any one time." On July 1, 1909, a new partnership was formed between Hutchins, Wooldridge and Magune and the old business was carried on by them under the name of John G. Mitchell. December 7, 1909, John G. Mitchell died, and thereafter, in January, 1910, the plaintiff was. appointed executrix of his will. Ferdinand Hutchins died on March 27, 1912, and Magune was appointed executor of his will. Wooldridge bought the interest of Hutchins and then owned two-thirds and Magune onethird interest in the business. On June 29, 1912, a new partnership agreement was entered into between Wooldridge and Magune. This agreement contains the following provision: "If either partner shall die, or retire, the Appeal from Superior Court, Suffolk Coun- right to use the name of John G. Mitchell and ty; P. J. O'Connell, Judge. Bill by Ellen E. Mitchell, as executrix of John G. Mitchell, deceased, against Edward O. Gruener and others, to enjoin use of name John G. Mitchell, in violation of G. L. c. 110, § 4. From a decree dismissing the bill, complainant appeals. Reversed. R. B. Stone, of Boston, for appellant. PIERCE, J. This is a bill in equity brought by the plaintiff, in her capacity as executrix of the will of John G. Mitchell, late of Brookline, deceased, to enjoin the use of the name John G. Mitchell in violation of G. L. c. 110, § 4. The evidence taken by a commissioner is reported. The bill was dismissed. with costs, and the suit is before this court on appeal. The substantial material facts are as follows: John G. Mitchell for many years prior to the year 1909 carried on a high grade merchant tailoring business in the city of Boston under the name of John G. Mitchell. Pursuant to an agreement of copartnership between him and one Ferdinand Hutchins, dated January 2, 1882, an agreement for the dissolution and carrying on of the tailoring business under the name of John G. Mitchell as of July 1, 1909, was executed on April 22, 1909, between John G. Mitchell, Ferdinand Hutchins, William Wooldridge and Algernon H. Magune; the last two were employees of the former firm. The agreement made pro carrying on business under the said name shall belong to and continue in the surviving partner so far as he may be entitled to the same under the terms of an agreement between John G. Mitchell, in his lifetime and the late Ferdinand Hutchins and the parties hereto." In October, 1912, Magune suffered a nervous breakdown, withdrew from the business, entered the McLean hospital, and there remained until February 15, 1913. Meanwhile his wife had been appointed conservator of his estate, had sold all his interest in the business and all right of Magune to use the name of John G. Mitchell. On February 17, 1913, Wooldridge entered into a partnership with the defendants Gruener, Toner and Burton to continue for five years and to succeed to the business previously carried on by Wooldridge and Magune. This agreement contained a provision in relation to the use of the said name, which reads: "In case of the death of a partner and of the purchase of his interest by the remaining partners as herein provided, the right to use the name of John G. Mitchell and to carry on said business under said name shall, so far as the deceased partner is concerned, be the property of the remaining partner.” In February, 1913, Magune was discharged from the McLean asylum. He wanted to get back into active work and knew he could not return to the old firm under Wooldridge. He had no business occupation until March, 1914, at which time he formed a copartner (146 N.E.) ship with one Chapman and that firm carried the business or to enter its service as an emon a tailoring business of a different class ployee. February 17, 1921, the foregoing than that of the firm of John G. Mitchell. agreement as to the use of the name John November 6, 1915, Mrs. Mitchell, through G. Mitchell was continued with all the rights sympathy and desire to restore to Magune and privileges for a period of three years. his rights which were sold to Wooldridge, Wooldridge died November 7, 1918. signed and gave to Magune a paper which reads: "The use of the name of John G. Mitchell, in the tailoring business, was conveyed to Algernon H. Magune, Ferdinand Hutchins, and William Wooldridge, as long as either of them lived. In the event of the withdrawal of Mr. Wooldridge from the firm, or his death prior to that of Mr. Magune's, I desire and authorize Mr. Magune, to at once assume all right and title in the use of the name, as given to him by John G. Mitchell, in a paper dated April 22, 1909." Again, at Magune's request, on May 16, 1916, Mrs. Mitchell signed the paper which follows: "As an expression of friendship and good will toward Mr. Algernon H. Magune of Revere, Mass., who was without his personal consent, deprived of the right conveyed to him by Mr. Mitchell to do business under the name of John G. Mitchell, as long as Mr. Magune lived, I do hereby give and assign to Mr. Magune the sole and exclusive right to incorporate in the tailoring business in Boston, under the firm name of John G. Mitchell, whenever it can legally be done. November 23, 1922, Robert B. Stone, Esquire, wrote a letter to the defendants stating that Mrs. Mitchell had asked him to advise her as to her rights with respect to the continued use of the name John G. Mitchell "under which I understood you are doing business. According to my present information, it would seem that she has the right to prevent the continued use of that name." The respondents replied under date of November 24, 1922, We will take this up with you within a few days." Under the agreement of June 13, 1918, Magune received $500 a year quarterly. He devoted no active time to the business; he went in and out at his pleasure and looked over the business and examined different things; he drew no salary except the $500. He sometimes came to the place of business twice a week; sometimes once a week, sometimes once in three weeks. He kept himself in touch with the business to know what was going on; he came and went as he saw fit; he drew no pay; did not consider himself under any particular obligation to do any work. I authorize Mr. Magune to take the above privilege, whenever in his judgment it becomes necessary to do so, to protect his interest in the name of John G. Mitchell." He did not keep the books, did not write any letters, did no buying, did not hire anybody, did not discharge anybody, and did not take any responsible part in carrying on the business. January 6, 1923, the defendants and Magune executed an agree ment "which recited the existing partnership between Gruener, Toner and Burton and the agreement entered into by them with Magune dated June 13, 1918, containing the option to purchase either an active and general partnership interest or a limited partnership interest in said business, the extension of this agreement so as to be coextensive with the term of the present partnership and the desire of Magune to purchase an active and general partnership interest in the business. The agreement then provided that, in consideration of the premises, and of the mutual agreements therein contained, Magune was admitted to copartnership for the remainder of the term, that is, until January 17, 1924, that his interest in the profits of the business should be $500 a year, and that he should devote to the partnership business such of his time and attention as might be mutually satisfactory to all parties thereto, and should not engage either directly or indirectly in any other merchant tailoring business." February 16, 1918, Wooldridge retired from the partnership with the defendants Gruener, Toner and Burton, and conveyed to them his interest in the firm and its business, and covenanted that he would not object to their use of the name John G. Mitchell and would not himself use the name. February 18, 1918, Gruener, Toner and Burton entered into a new copartnership agreement pursuant to their agreement with Wooldridge, and thereafter have continued to carry on the business under the name of John G. Mitchell. The defendants were aware of the provisions of the agreement of April 22, 1909, between Mitchell, Hutchins, Wooldridge and Magune, and especially as to the terms thereof in connection with the right to use the name John G. Mitchell. By an agreement dated June 13, 1918, the respondents agreed to pay Magune $500 a year May 22, 1923, the plaintiff, as executrix, for the right to use the name John G. Mitch- notified the defendants that she "objected ell, gave him the right to such use of their to the carrying on of business by" them or place of business as should enable him to any of them under the name John G. Mitchfully protect himself and the legal repre-ell, and stated that she required them to sentatives of John G. Mitchell in the use of desist therefrom. She also stated: such name by them, and gave Magune an option to purchase a partnership interest in "Any right to the use of his name formerly existing has ceased, or is hereby terminated." After the execution of the agreement of January 6, 1923, Magune went to the shop of the defendants a little more. "He did not keep books of account or write any letters, or hire anybody, or fire anybody, or buy any goods; he has met customers there, but did not do any business with them. or carry on any business conversation with them; he participated in the conduct of the business after January, 1923, to a greater extent, in going there oftener and making suggestions in such things as he had previously done in regard to the business; he once suggested and insisted that they fix the place up 'a little over a year ago,' and he always had a watchful eye on the business as far as he could under the cir cumstances to see that the business went on in the usual way." "His interest in the business was to see that it was run in a certain way and to make suggestions and that he should have the satisfaction of seeing that things went on as they used to go on; he felt what you might call a sentimental interest as well as a practical interest; he never asserted the right to direct or insist that they carry on the business in any particular way except in regard to fixing up the place; he inquired about the house from whom they bought the goods and looked over the goods and looked over the books and looked at prices, inquired about who the men were who were working for them, and who the new men were, and the prices they were paying, and kept himself generally posted so far as he could; he thought it was necessary because he wanted to be satisfied that things were going on as they should." "He thought his only power over them was in the matter of the name and his power to refuse to extend the right to use it; he did not think that he had any different power after January, 1923, from what he had before." April 5, 1924, the defendants and Magune entered into a new agreement which in substance, so far as concerns the matter in issue, provided "that their old agreement of copartnership came to an end by its own terms on February 17, 1924, and that they desired to continue as copartners for a further period of six years from said date; they agreed to carry on business as partners under the name of John G. Mitchell, and that Magune should receive from the partnership business as salary and as the sole amount of the profits thereof to which he should be entitled $650 a year and should devote to the partnership business such of his time and attention as might be mutually satisfactory to all the parties thereto and should not during the term of the partnership engage either directly or indirectly in any other merchant tailoring business." And on the same day Gruener, Toner, and Burton executed and delivered to Magune the agreement which follows: "In consideration of the execution by you of the copartnership agreement between us, to which this letter is annexed, we, the other partners in said partnership, do hereby guarantee to you jointly that you will receive profits dred and fifty dollars ($650.00) per annum until the expiration thereof, and we hereby agree to indemnify you and hold you harmless from all rents, debts and losses of the business, including in such debts and losses any costs or expenses incurred on account or by reason of any litigation against you or the partnership questioning your right or the right of the partnership to use the name of John G. Mitchell, in proportion among us to our respective shares in the net profits of the business." Assuming that the executrix of the will of John G. Mitchell as such had authority to authorize the use of the name John G. Mitchell; that no consideration was required to give validity to such an act; and that within its terms the gift was not revocable; we turn to the letters of Mrs. Mitchell dated November 16, 1915, and May 16, 1916, to ascertain therefrom the measure and the quantity of the right transferred from her to Magune. The paper of November 16, 1915, above quoted, in substance authorized the use of the name John G. Mitchell upon the terms Magune had the right to use it under the paper, above quoted, signed by John G. Mitchell, April 22, 1909. That instrument, all parties thereto other than Magune being dead, paraphrased, authorized Magune to use the name John G. Mitchell so long as he (Magune) "shall live and shall be engaged in carrying on said business (i. e. the business of John G. Mitchell) either alone or in partnership with others." Magune, alone, has never at any place carried on a tailoring business resembling the business which John G. Mitchell with his partners conducted before Mitchell retired from the firm of John G. Mitchell. [1] There remains for decision the question, Is Magune engaged in carrying on said business in partnership with the defendants Gruener, Toner and Burton? The agreement which is denominated a partnership, executed April 5, 1924, provides that Magune "shall receive as salary" "and as the sole amount of the profits thereof to which he may be entitled, the sum of six hundred fifty dollars ($650) per annum payable in equal quarterly payments and no more, to be deducted as an expense of the business in determining the net profits to be divided among the other partners." The agreement further provides that "all checks, notes and other writings pledging the credit or affecting the property of the partnership shall be signed by either the party of the first part or the party of the second part, All questions of policy shall be determined, and all purchases of stock shall be made by the parties of the first, second and third parts"; that is, by Gruener, Toner and Burton. The provides a guarantee of the payment of $650 agreement of April 5, above quoted, further and an indemnification from all losses in connection with the business or the present litigation over the right to use the name of |