5, an assignee of a nonnegotiable legal chose The right to recover illegal interest under in action, assigned in writing, may maintain Rev. St. c. 35, § 3, by "the party paying the an action thereunder in his own name, sub- same" has been interpreted as including the ject to the defenses open to the defendant, debtor's assignee in insolvency. Gray v. had the action been brought in the name of Bennett, 3 Metc. 522; Tamplin v. Wentworth, the assignor. Delval v. Gagnon, 213 Mass. 203,99 Mass. 63. The stock gambling statute (G. 99 N. E. 1095. The assignments.to the plain- L. c. 137, § 4) has been held to be a remedial tiff were executed and delivered before the and not a penal statute, giving the right, to a date of the writ. Bowen v. New York Cen-person entitled to sue, to discharge or release tral & Hudson River Railroad, 202 Mass. 263, the claim. Wall v. Metropolitan Stock Ex88 N. E. 781. By these assignments all change, 168 Mass. 282, 46 N. E. 1062. And claims and demands of the assignors against | this right of action survives to the executor the defendant for its breach of any duty in the storage of the wool passed to the plaintiff. Rogers v. Abbot, 206 Mass. 270, 92 N. E. 472, 138 Am. St. Rep. 394. or administrator. Chandler v. Prince, 214 Mass. 180, 182, 100 N. E. 1029; Anderson v. Metropolitan Stock Exchange, 191 Mass. 121, 77 N. E. 706. Under an act of Congress (28 The defendant's request for a ruling that Stat. c. 280) requiring contractors to furnish "the nonnegotiability of the receipts prevents a bond and giving a remedy to persons furthe holder thereof from assigning or trans- nishing labor and material, it has been held ferring them, or any causes of action aris- that an assignee could sue on the bond. ing out of them, so far as the defendant is United States v. Rundle, 100 F. 400, 40 C. C. concerned," was denied properly. The plain-A. 450; Title Guaranty & Trust Co. v. Puget tiff's cause of action was founded on the de- Sound Engine Works, 163 F. 168, 89 C. C. A. fendant's breach of duty to care properly for 618. the goods. The action is not brought on the receipts, and the plaintiff's right to recover does not arise out of the receipts. See in this connection G. L. c. 105, § 47, giving the assignee of a nonnegotiable receipt the right to require the warehouseman, on notification, to hold possession according to the receipt. MacKeown v. Lacey, 200 Mass. 437, 86 N. E. 799, 21 L. R. A. (N. S.) 683, 16 Ann. Cas. 220. G. L. c. 105, § 3, gives to the person injured by the warehouseman's neglect the right to recover, and to bring an action for his own benefit in the name of the commonwealth on the bond of the warehouseman. [3, 4] The defendant contends that, as the plaintiff was not the owner of the wool when the breach of duty occurred, he suffered no injury and therefore is not within the class of persons authorized to sue upon the bond under G. L. c. 105, § 3. The plaintiff's assignor, however, had the right under this section of the statute to bring an action on the bond in the name of the commonwealth, and this right passed by the assignment in writing to the plaintiff. G. L. c. 231, § 5. See Heard v. Calkins, 234 Mass. 526, 530, 125 N. E. 596. The statute giving the assignee in writing the right to sue applies to all choses in action. The remedy, given by the statute to the party injured by the warehouseman's neglect, was not intended to be so limited as to exclude those whose rights were derived from the owner or person damaged in his property. It was not essential to the plaintiff's recovery that he should be owner of the wool when the damage was done; as the assignee of the owners he stood in their position and could recover on the bond. The statute was remedial. It was for the benefit of those who might suffer damages by the warehouseman's neglect. It is to be fairly construed. [5] The language of the assignment was broad enough to assign the owner's rights and entitle the plaintiff to prosecute the action. It was not necessary that the obligee of the bond should execute the assignment in order to give the plaintiff his right of action on the bond. The action in the name of the commonwealth would be for the benefit of the injured party, and he could assign his rights thereunder. We find nothing in Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289, in conflict with what is here decided. In our opinion, the right which the bank had to bring an action against the defendant under the statute, because of the damage to the wool when it was the owner, passed to its assignee, the plaintiff; and he could prosecute the action. Exceptions overruled. HUNT et al. v. BOSTON & M. R. CO. (Supreme Judicial Court of Massachusetts. Berkshire. Jan. 10, 1925.) I. Railroads 309-Duty not to injure automobile stalled on crossing. Principle that railroad owes no duty to trespassers, in absence of wanton or willful injury, could not be extended to release its obligation to use due care in operation of trains, so as not to injure plaintiff's automobile, stalled on public crossing. 2. Railroads 350 (1)-Negligence as to automobile stalled on crossing held for jury. Where, under evidence, jury could have found that engineer saw signal in time to stop train, or that in exercise of due care he could have seen it, but did not stop, and automobile (146 N.E.) stalled at crossing was struck, it was error to [ers, in the course of an intended excursion direct verdict for defendant. from North Adams to Williamstown drove the automobile onto River street where it 3. Railroads 347 (1)—Evidence flagman was leads to the south, at grade, over the tracks new on job properly excluded. In action against railroad to recover for automobile, run down while stalled on crossing, evidence of statement by flagman that he was new on the job was properly excluded. 4. Appeal and error 1056(1) Excluding evidence as to time necessary to start motor and drive automobile off crossing held without error. Where plaintiff's automobile, stalled on crossing, was run down by defendant's engine, plaintiff was not injured by exclusion of witness' opinion as to time it would have taken to start motor and drive off crossing. 5. Appeal and error 1056(1) - Excluding evidence whether defendant would have had difficulty in driving stalled automobile off crossing held without error. Where plaintiff's automobile, stalled on crossing, was run down by defendant's engine, there was no legal injury to plaintiff in excluding question as to whether driver would have had difficulty in starting car and getting it out of danger in time to have avoided collision. of the defendant's railroad to a small wood- 20 feet wide on the south side where the Exceptions from Superior Court, Berk- feet to the east of the crossing. At the shire County; W. A. Burns, Judge. Action of tort by Agnes Hunt and others against the Boston & Maine Railroad Company to recover for automobile destroyed at crossing. Verdict was directed for defendant, and plaintiffs except. Exceptions suse tained. northwest corner of the bridge, on the southerly side of the crossing, was the crossing tender's shanty; a flagman or crossing watchman being maintained at the crossing by the defendant. The automobile was a five-passenger Paige touring car; the top was up but the curtains were not on the sides. The driver sat on M. E. Couch, of North Adams, for plain- the left-hand side with a companion on the tiffs. right-hand side. The automobile was a selfA. W. Rockwood, of Boston, for defend- starter and had chains on its rear wheels. ant. PIERCE, J. This is an action of tort to recover damages to a registered automobile, owned by the plaintiffs, which, they allege, were caused by the negligent driving of an engine and freight train by the servants of the defendant against the automobile while it was stalled on the tracks of the defendant's railroad; which tracks were within the location of the railroad and crossed a public highway at grade. On a motion of the defendant at the close of the evidence for the plaintiffs, the presiding judge directed a verdict for the defendant, and the case is here upon the plaintiffs' exceptions thereto. In its aspect most favorable to the contention of the plaintiffs, the testimony disclosed by the record would have warranted the jury in finding the following facts: On December 13, 1920, after dark, at about 5:30 in the afternoon, a daughter of one of the owners of the automobile, having an operator's license, with the permission of the own It had snowed early in the afternoon and the roadway was wet. As the automobile approached the crossing on the north side going south its headlights were lighted and it was going 8 or 10 miles an hour. The driver looked to see if the flagman was there as she drove up a little grade to the crossing; he was not there; the bell was not ringing; she looked up the track toward North Adams and down the track toward Williamstown and the bridge straight away 1,350 feet distant. There was no train in sight. In consequence of not seeing the flagman she shifted into second gear before coming to the crossing. She saw that the dirt had worn away from the planking and that the rail was 4 or 5 inches above it. In consequence she drove cautiously upon the crossing. Just as she was going over the north track (the first track) the rear wheel of the automobile struck the rail with a jar. When the chain hit the rail "it caused the car to skid and it began to spin." It skidded to the right and the driver turned the wheel to the right, with slight pressure For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on the brake to stop the skidding, but so for upon proper inference, that the flagman hard that it stalled the engine. When the engine stalled the front wheel had run off the crossing. The right front wheel was just off the planking, up against the south rail of the east-bound or southerly track. The right front tire rested on the ground within an inch or two of the end of the planking, 3 or 4 inches below the top of the planking and against the south rail of the east-bound track. The rear of the automobile was 10 or 12 inches over the west-bound track; the body of the automobile was on the crossing of the east-bound track, with the exception of the front right wheel, which was on the ground 2 inches to the west of the planking. When the automobile stalled no train was in sight. When the automobile finally stop ped the train was in sight at the bend 3,940 feet distant to the east. After the car stalled the flagman came out of his cabin to the driver, who had her heel on the starter to start the car; he told her to get out, which she did, protesting she could start the car. The flagman stood on the south side of the west-bound track and waved a red bull's-eye lantern back and forth. Upon the somewhat inconclusive testimony of the plaintiff the jury would have been warranted in finding that the engineer of the train, in response to the signal of the flagman's lantern, answered that signal with two blasts of the whistle at the switch light just beyond the station and 750 or 800 feet east of the crossing, as he was required to do by the rules of the defendant. The train, five to seven seconds later struck the automobile, causing the damage complained of, and stopped four or five car lengths over the crossing. The station was a way station where express trains did not stop and where some local trains stopped on flag and some did not. in [1] The defendant's first contention support of the directed verdict is that the automobile was a trespasser and that consequently the defendant owed the plaintiffs no duty in the absence of wanton or willful injury. It is conceded that the principle of law invoked is applicable to involuntary as well as to voluntary trespassers. Pennington v. Director General of Railroads, 97 N. J. Law, 40, 116 A. 777. But that principle cannot be extended rightly to release the defendant from its obligation to use due care in the operation of its engines and trains so as not to injure persons, property and parts of property which are rightfully on the public highway where the defendant railroad crosses the highway at grade, even though as to a part of such property the general obligation of due care does not attach by reason of the involuntary situation of that part. [2] The defendant further contends that there was no evidence of its negligence. The gave the usual red-stop signal of the lantern, required by the rules of the defendant to be used when necessary to stop trains; that the engineer responded to that signal with two blasts of the whistle in the manner required by the rules of the defendant; and that the signal was received and answered when the engine was about 800 feet from the crossing. There was further evidence that warranted a finding that the gateman came from his cabin with his lantern when the train was distant 3,900 feet east of the crossing; that the track was straight, and the engineer could have and should have then seen the signal; that after the engineer answered the signal with two blasts of the whistle, the train came right along without application of the brakes until it stopped about seven seconds later four or five car lengths over the crossing. On either hypothesis of fact the jury could reasonably find that the engineer saw the signal at a time when he might have stopped the train, or that he failed to see it when he should have seen it if he had been in the exercise of due care. Seeing the signal at either point the jury could determine of their own knowledge and experience that it was reasonably practicable for the engineer to have stopped the train before it came upon the crossing; that he did not stop it; that it was negligence not to have stopped it; and that the harm to the automobile resulted as a direct consequence of such failure of the train to stop. Commonwealth v. Peckham, 2 Gray, 514, 515; Fallon v. Boston Elevated Railway, 201 Mass. 179, 87 N. E. 480; Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, 87 N. E. 898; Garafalo v. New York, New Haven & Hartford Railroad, 206 Mass. 539, 92 N. E. 723; Clapp v. New York, New Haven & Hartford Railroad, 229 Mass. 532, 118 N. E. 658. [3-5] We think it sufficiently plain, without discussion, that there was evidence of the due care of the driver of the automobile. We think the evidence of a statement by the flagman that he "was new on the job" was properly excluded. Lang v. Boston Elevated Railway, 211 Mass. 492, 98 N. E. 580; Polmatier v. Newbury, 231 Mass. 307, 120 N. E. 850. We also think the plaintiff was not injured by the exclusion of the opinion of a witness as to how long it would have taken to start the motor and drive the automobile off the crossing. We further think that no legal injury was sustained by the plaintiffs in excluding the question as to whether the driver would have had any difficulty in starting the car and getting it out of a place of danger in time to have avoided the collision. The question was or involved a consideration of facts which were properly for the jury. Moreover, the driver was later permitted to answer, in substance, that if permitted she train should arrive at the crossing. opinion of a majority of the court ceptions should be sustained. Exceptions sustained. KING v. WALSH et al. (146 N.E.) In the the wife executed her will during coverture, the ex- on October 5, 1918, and the husband executed his will on November 29, 1922, before the funeral of his wife; that the husband had "some furniture and bank accounts," and the wife owned a house in which they lived and was possessed of personal property consisting mostly of stocks. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 10, 1925.) 1. Wills 610(2)-Testatrix intended to create life interest, with power in legatee to consume and dispose of. Testatrix's bequest of residue of estate to husband, with power to use and dispose of it by will or otherwise as he shall see fit, held, in view of facts, to dispose of personal property only, and to create life estate therein in husband, with power to consume and to dispose of that part of legacy not used up at legatee's death; rule for interpreting devises of land contained in G. L. c. 191, § 18, not being applicable. 2. Wills 589-General devise is presumed to include general power of appointment, unless contrary appears from will. General devise of property in will is presumed to include general power of appointment, unless contrary appears from will. Appeal from Probate Court, Bristol County; M. R. Hitch, Judge. Petition in probate court for instructions by Clifford L. King, administrator with the will annexed of the estate of Laura J. Thompson, deceased, opposed by Ada J. Walsh and others. From the decree respondents appeal. Affirmed. E. S. White, of Taunton, for appellants. PIERCE, J. This is a petition for instructions, addressed to the judge of the probate court for the county of Bristol by the administrator with the will annexed of the late Laura J. Thompson, of Taunton, Mass., and is before this court on the appeal of certain respondents, named in the petition, from the decree of the said judge: "That the petitioner is instructed to pay over the rest and residue of the estate of Laura J. Thompson to the said Clifford L. King as he is the executor of said will of William P. Thompson." It appears by the report of the commissioner, which is made a part of the record, that William P. Thompson and Laura J. Thompson were husband and wife; that the wife died on November 27, 1922, and the husband died a few weeks thereafter; that The will of Laura J. Thompson dated October 5, 1918, which was duly probated, devised her real estate to her husband, William P. Thompson, for his lifetime with the remainder to the Morton Hospital in Taunton. No question of construction centers upon this provision of the will. The third item of the will, which concerned personal property only, reads as follows: "All the rest and residue of my estate of whatever name and nature, I give and bequeath to my husband, William P. Thompson, with power to use and dispose of the same by will or otherwise as he shall see fit, but if he shall not survive me or if there shall be any of said rest and residue of which he has not made any disposal at his death, I give of said rest and residue the sum of one thousand dollars, to Ada J. Walsh of Lowell. then to her heirs. "In case she shall not survive my husband, "Also I give the sum of three hundred dollars to Mrs. Maria Haynes if she shall survive my husband and the sum of three hundred dollars to Mrs. Mary Williams, if she shall survive my husband. "The above bequests to Ada J. Walsh, Maria Haynes and Mary Williams are to be paid in full if there is sufficient of said rest and residue, otherwise each legacy is to be proportionately reduced." The will of William P. Thompson, executed on November 29, 1922, and duly probated, contained the following provisions: "2. All my furniture, personal belongings (except money and bank accounts) and fixtures I give and bequeath to my daughter, Edith E. King. "3. All real estate that I own at my death or have any interest in, I give to Edith E. King for her life, and upon her death to her children who are my grandchildren namely Julia A. King and Clifford T. King. During said life estate of Edith E. King she may sell in fee or mortgage said real estate, in her discretion, without license of any court, her deed to be sufficient, and of the proceeds said Edith E. King shall have the income and may use the principal for her comfort or support in her discretion and what is left upon her death shall go to my said grandchildren, Julia A. King and Clifford T. King. "4. To my son Charles A. Thompson for whom I have great affection but who is financially not in need, I give ten dollars. lect four articles of furniture mentioned in "5. My son Charles A. Thompson may seclause 2 above as his. "6. All the rest and residue I give and bequeath in equal shares to my grandchildren, Julia A. King and Clifford T. King." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-3 The instructions sought are phrased in the | Mass. 270, 130 N. E. 681; and by Stone v. words that follow: "Your petitioner therefore prays that this honorable court will instruct him as to his duties in carrying out the provisions of the third clause of her said will and advise him who is entitled to said rest and residue therein mentioned and what his duty is in the premises with reference to the payment thereof, and will instruct him as to who is legally entitled to said rest and residue now that her said husband is deceased, and will give him such further orders, directions and instructions as will enable him to make disposal of said rest and residue according to law." It is the contention of the executor of the will of William P. Thompson that the third clause of the will of Laura J. Thompson gave William P. Thompson an absolute title' in the "rest and residue of the estate of Laura J. Thompson since William P. Thompson survived Laura J. Thompson and that therefore a decree should be entered requiring the rest and residue of Laura J. Thompson to be given to Clifford L. King as executor of the will of William P. Thompson. If, however, the third clause of the will of Laura J. Thompson is construed to create a life estate with the power of appointment by will given to William P. Thompson, then Clifford L. King, executor of William P. Thompson, contends that the rest and residue clause in the will of William P. Thompson exercises that power of appointment in favor of Julia A. King and Clifford T. King and that Clifford L. King, executor of the will of William P. Thompson, should take this property for Julia A. King and Clifford T. King." On the other hand the respondents contend that the third clause of the said will did not create an absolute estate in William P. Thompson, but did create a life interest in the husband with a power to consume, use and dispose of by will or otherwise as he should see fit. [1] The facts above recited disclose that the estate given and bequeathed by the third clause of the said will concerned the dis position of personal property only. It follows that the rule for the interpretation of devises of real estate, contained in G. L. c. 191, § 18, is of little value in ascertaining the quality of the estate bequeathed. A consideration of the whole will of Laura J. Thompson leads to the conviction that the testatrix intended to create a life interest by the third clause of her will, with a power in the legatee to consume and to dispose of, by will or otherwise, that part of the legacy which is not used up at the death of the legatee. Ware v. Minot, 202 Mass. 512, 88 N. E. 1091; Dallinger v. Merrill, 224 Mass. 534, 113 N. E. 279; Davis v. Clapp, 242 Mass. 139, 136 N. E. 185. [2] The question which remains is: Did the legatee exercise the power of appointment? It is settled by Ames v. Ames, 238 Forbes, 189 Mass. 163, 169, 75 N. E. 141, that "a general devise of property real or personal is presumed to include a general power of appointment unless the contrary appears from the will." In the case at bar no such intent appears. There is nothing to show in the reported facts that the estate of William P. Thompson is solvent; it therefore is proper to pay the property covered by the third clause of the will of the wife to the executor of the estate of William P. Thompson rather than to the legatees under the sixth clause of his will. Olney v. Balch, 154 Mass. 318, 322, 28 N. E. 258. STOEHRER & PRATT DODGEM CORPORATION v. GREENBURG. (Supreme Judicial Court of Massachusetts. Essex. Jan. 10, 1925.) 1. Evidence 441 (9) Under written contract without express warranty, evidence of representations as to workmanship and stability was rightly refused. Where sale of amusement devices was under written contract in which there was no express warranty extrinsic evidence of representations as to workmanship and stability of devices, and that inspection would not have disclosed defects, was properly excluded. 2. Sales 273(5)-No implied warranty of fitness for any particular purpose if article sold by trade-name. Under G. L. c. 106, § 17(4), there is no implied warranty of fitness for any particular purpose in sale of specified patented article under its trade-name. 3. Pleading 139-Matters not pleaded in recoupment not considered. recoupment, it cannot be considered. Where cross-demand was not pleaded in Exceptions from Superior Court, Essex County; J. Walsh, Judge. Dodgem Corporation against Bertha Greenburg to recover on contract for sale of amusement devices. Verdict for plaintiff, and defendant excepts. Exceptions overruled. Action of contract by the Stoehrer & Pratt J. A. Donovan, of Lawrence (J. M. Hargedon, of Lawrence, on the brief), for plaintiff. Wm. Hirsh, of Boston, for defendant. |