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(146 N.E.)

[3] The defendant also contends, that she is entitled to damages for loss sustained by reason of false representations of the defendant's agent as stated in the offer of proof. But, without deciding whether an action thereon for deceit could be maintained at common law this cross-demand has not been pleaded in recoupment and it cannot be considered.

N. E. 750, 43 L. R. A. (N. S.) 977, Ann. Cas.
1914A, 384; Borden v. Fine, 212 Mass. 425,
428, 98 N. E. 1073; Merchants' Heat & Light
Co. v. James B. Clow & Sons, 204 U. S. 286,
27 S. Ct. 285, 51 L. Ed. 488. See Virginia,
Carolina Chemical Co. v. Kirven, 215 U. S.
252, 30 S. Ct. 78, 54 L. Ed. 179.
Exceptions overruled.

ACORN SILK CO. v. HERSCOVITZ et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 10, 1925.)

1. Evidence 441 (9)-Sales contract without express warranty cannot be changed by parol evidence to cover alleged representations.

amusement device known as the "Dodgem," | goods sold, cited and relied on by the deconsisting of fifteen cars, and on May 16, | fendant, are inapplicable on the present rec1921, she bought three additional cars and ord. See Boston Consolidated Gas Co. v. gave in payment her promissory note. The Folsom, 237 Mass. 565, 567, 130 N. E. 197. case was tried on the second count of the declaration, which is for the balance with interest of the contract price due on the first purchase, and on the third count to recover the amount of the note with interest according to its tenor. The defendant, relying on the averments of her answer made an offer of proof, that prior to the purchase of any of the cars the plaintiff wrote the defendant | Graham v. Middleby, 213 Mass. 437, 444, 100 that "We are putting in the very best of material, and that costs money, very much more than we anticipated but the result is worth it, the new cars will last for many years without repair of any kind"; and that the plaintiff's duly authorized agent, prior to the purchase of said cars, told the defendant at different times that "said cars were constructed of first class material, and that they would stand up and perform the service required of them and would not require any repairs for several years"; that "said cars soon after delivery showed faulty construction and were continually out of repair, and that a number of said cars became useless and they were wholly unfit for the service intended for, causing the defendant great financial loss, and that the defendant has offered to return said cars and rescind the contract of sale"; that "the defendant wholly relied on the representations of the plaintiff's agent as to the workmanship and stability of said cars, and had no means of personal knowledge to the contrary, and that an inspection would not disclose their faulty construction and latent defects." The offer of proof was properly excluded, and the verdict for the plaintiff was ordered rightly. The sale of all the cars was under contracts in writing in which no express warranty of any kind appears. The exceptions state, that the plaintiff held letters patent issued by the United States on the device, and that the cars were sold under the name of "Dodgem cars which name had been copyrighted in the United States Patent Office." The sale having been of a specific patented article under its trade-name, there was no implied warranty of fitness for any particular purpose. G. L. c. 106, § 17(4). It was so assumed in Boston Consolidated Gas Co. v. Folsom, 237 Mass. 565, 568, 130 N. E. 197, and there is no sufficient reason why the statute should not be followed in the case at bar. Quemahoning Coal Co. v. Sanitary Earthenware Specialty Co., 88 N. J. Law, 174, 95 A. 986. The contracts which are complete and unambiguous have not been rescinded, and Bates v. Cashman, 230 Mass. 167, 119 N. E. 663, which was a bill in equity to rescind a contract, and Churchill v. Palmer, 115 Mass. 310, 323, where there was an express warranty of the

Where written contract for sale of silk dress goods contained no express warranty, it cannot be changed, by parol evidence, to cover alleged representations.

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 on sale of specified article under its

trade-name.

3. Sales 440 (1)-Question whether buyer keeping part of goods could rescind held immaterial.

Where silk dress goods were sold under trade-name, without express warranty, and under G. L., c. 106, § 17 (4), there was no implied warranty, question whether contract was entire and defendants having used part of goods could not rescind and were liable for purchase price was immaterial.

Report from Superior Court, Suffolk County; J. F. Quinn, Judge.

Action of contract by the Acorn Silk Company against Charles Herscovitz and others to recover price of silk dress goods. Verdict for plaintiff, and case reported. Judgment

on verdict.

Samuel M. Child, of Boston, for plaintiff. E. M. Dangel, J. J. Enright, and Robert Gallagher, all of Boston, for defendants.

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BRALEY, J. [1, 2] This is an action of contract to recover the price of an invoice of silk dress goods. The parties are described as doing business in Boston in this Commonwealth, and their rights are to be determined by our sales act. G. L. c. 106. The goods were sold under the trade-name of "Asco Silk" and after having kept or used nearly one-half of the shipment, the defendants claimed that the colors run, and endeavored to rescind by a tender of the remainder of the invoice which was refused. It was further claimed that the plaintiff's agent, when the sale was negotiated by sample, informed the defendants that the word "Asco" was a trade-name of the plaintiff and indicated that the company guaranteed the goods as fast colors. The contract however, which was in writing, contains no express warranty. It cannot be changed by parol evidence to cover the alleged representations. Boston Consolidated Gas Co. v. Folsom, 237 Mass. 565, 568, 130 N. E. 197. And by force of the statute section 17 (4) there is no implied warranty entitling the defendants to damages under their answer in recoupment. Stoehrer & Pratt Dodgem Corporation v. Greenburg, 249 Mass., 146 N. E. 34.

[3] The question, whether the contract was entire and the defendants therefore by keeping or using part of the goods cannot rescind and are liable for the purchase price, is immaterial. See Shohfi v. Rice, 241 Mass. 211, 135 N. E. 141.

The verdict for the plaintiff, the amount of which if it is entitled to recover is not disputed, was ordered rightly, and the entry

must be

Judgment on the verdict.

LUFKIN v. SPILLER.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 8, 1925.)

I. Trial 404(4)-General finding for plaintiff imports finding of subsidiary facts necessary to result.

General finding for plaintiff imports finding of all subsidiary facts necessary to that result which evidence would support.

2. Trial 386(4) · Denial of request that plaintiff in suit for use and occupation could not recover not error, liability for use being question of fact.

In action to recover for use and occupation of a passageway, denial of request that plaintiff could not recover held not error; it being question of fact from evidence whether defendant had so conducted himself as to become liable personally for rent. 3. Trial

386(4)—Denying request that defendant was not liable unless he was owner of business held without error.

In action to recover for use and occupation of passageway for storage of wagons and carts,

under evidence that defendant was in occupation of stable, and that passageway was used in connection with it, there was no error in denying request that defendant could not be which used it.

held liable unless he was owner of business

4. Landlord and tenant

183-Express agree

ment for hire of passageway held not essential to recovery of rent therefor.

for storage of vehicles might arise by impliContract to pay hire for use of passageway cation without express agreement.

Appeal from Municipal Court of Boston, Appellate Division; J. P. Parmenter, Judge. Action of contract by John W. Lufkin against Louis Spiller, to recover for use and occupation of a passageway. Findings for plaintiff, and from an order of the appellate division of the municipal court, dismissing the report, defendant appeals. Affirmed.

H. Kahn and B. Beerman, both of Boston, for defendant.

RUGG, C. J. [1] This is an action of contract to recover for use and occupation of a passageway. One half of the passageway was owned by the plaintiff and the other half by the owner of an estate occupied as a stable. There was evidence tending to show that the defendant was in occupation of the stable and that the passageway was used in connection with the stable for the storage of wagons and carts; that the plaintiff told the defendant he should charge him for such use, to which apparently the defendant made no reply, and later, that the rent would be at a higher rate; and that the defendant then replied that he would not pay until some old iron was removed from the passageway. There was other evidence tending to exonerate the defendant from liability. The finding was for the plaintiff, the court ruling that there could be no recovery unless the plaintiff proved continuous occupation by the defendant. The general finding in favor of the plaintiff imported a finding of all subsidiary facts necessary to that result, which the evidence would support.

er.

[2, 3] There was no error of law denying the request that the plaintiff could not recovIt was a question of fact on all the evidence whether the defendant had conducted himself with reference to the use of the passageway, either in conversation or in action, so as to become liable personally for rent arising from its use for storage. For the same reason there was no error of law in denying the request that the defendant could not be held liable unless he was the owner of the business which used the passageway.

[4] The remaining request, to the effect that the plaintiff could not recover unless he proved an express agreement with the defendant for the hire of the passageway, man

(146 N.E.)

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the rent of safe numbered 2185 for one year, were given a receipt dated July 13, 1920, which stated that the rental was "subject to the rules indorsed herein, all of which are by it agreed to and accepted." One of the rules provided that:

"No one but the renter or his deputy, to be duly designated in writing on the records of the vaults, or in case of death, or other contingency, his legal representatives, to have access to the safe."

The safe "within a month preceding June 10, 1921," was unlocked by one Amos L. Hatheway, who purloined certain coupon bonds issued by the United States of the face

Exceptions to rulings on evidence, not hav- value of $56,000, the property of the estate, ing been argued, are waived.

2. Evidence 94-Weight or preponderance of evidence may shift, but burden rests on plaintiffs to maintain issue presented.

Weight or preponderance of evidence may shift, but burden of proof rests on plaintiffs to maintain issue presented by pleadings. 3. Warehousemen 45-Attorney intrusted with key to safety deposit box held renter's deputy.

When, at time receipt for safety deposit box rented by executors in name of estate was given, attorney for executors had been designated in writing on records of owner of vaults as person who could have access to safe, and renters thereof had knowledge of rule that no one but renter or his deputy could have access to it, under contract he became renters' deputy, and owner could recognize him as person having lawful access to safe, and was not liable for according him access to the safe, notwithstanding he converted securities belonging to the

estate.

which he pledged to secure his own obligations to holders for value without knowledge of the theft, or of circumstances which should have put them upon inquiry. See Pratt v. Higginson, 230 Mass. 256, 119 N. E. 661, 1 A. L. R. 714. The plaintiffs allege that without their knowledge or assent, and in violation of the contract, the defendant having permitted Hatheway to open the safe is liable in damages for the breach. The answer in substance is a general denial.

[2] The weight or preponderance of evidence might shift with varying aspects of the trial, but the burden of proof rested on the plaintiffs to maintain the issue presented by the pleadings. Carroll v. Boston Elevated Railway, 200 Mass. 527, 86 N. E. 793.

[3] The "records" which contained the names of the renters, and of those who were permitted access to the safe, were in the usual course of business kept on cards by Henry L. Hinckley, the defendant's manager.

Report from Superior Court, Suffolk Coun- While the card dated July 13, 1920, a copy ty; F. Lawton, Judge.

of which is marked Exhibit 5, and signed only by the plaintiff Browne, bears on its face the notation, "Exs. 2 to go," meaning, that two of the executors were to go together when the safe was unlocked, he testified without contradiction that he knew the

Action of contract by William R. West and others, executors under the will of William Firth, deceased, against the State Street Exchange, to recover value of certain bonds alleged to have been taken from plain-words were not then on the card, and there tiffs' safety deposit box without their consent. Verdict was directed for defendant, and case reported. Judgment on verdict.

E. F. McClennen, of Boston, for plaintiffs. C. F. Choate, Jr., and W. E. Tucker, both of Boston, for defendant.

was evidence that they had been inserted June 10, 1921, at the request of the other two executors, who seem to have become suspicious of Hatheway's integrity. It is manifest on the evidence of Browne, and his coexecutors West and Smith, that Hatheway who had acted as counsel for, and had pre

BRALEY, J. [1] The plaintiffs' excep-pared the will of the testator, was retained tions to rulings on evidence, not having been argued, are treated as waived, and the only question is whether the verdict for the defendant was ordered rightly. It owns safedeposit vaults containing safes, each with a separate number and lock, which under the name of "State Street Exchange Vaults" are rented to customers, who receive keys that cannot be used without the application of a pass key by the defendant. The executors of the will of William Firth, having paid

and employed by the four executors, Browne, West, Smith and Mrs. Firth, as "the proper person to look after the business." He also on the resignation of Smith on November 20, 1920, was appointed to succeed him, but resigned February 7, 1921, and thereafter Browne, West and Mrs. Firth acted as executors. The meetings of the executors as well as of the trustees under the will were held at his office which was in the defendant's building, and he was entrusted with the

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entire management of affairs. By arrange ment between themselves none of the executors except Browne could draw checks on the funds, which also were to be countersigned by Hatheway, who received the moneys, and made deposits in the name of the estate in a national bank and in a trust company. The result was, that Hatheway directed and controlled the settlement of the estate under the supervision of Browne. The executors, Browne, West and Smith, having decided to purchase bonds, a discussion followed at Hatheway's office on July 9, 1920, about renting "a safe deposit box." The minutes of the meeting, which were kept by Hatheway who acted as secretary, show that:

"Counsel was authorized to negotiate with banks holding deposits for payment of interest on undrawn balances, and the hiring of a safedeposit box for the deposit of securities was authorized."

The history of subsequent events appears In the testimony of Browne, West and Smith, on which the plaintiffs' case must rest. Browne testified:

in

"Hatheway was not asked to get it. We knew afterwards he got it. Before I went over with the bonds I knew he had gotten the box. He told Mr. West and myself before we took the bonds over. We objected. Hatheway was doing the work any lawyer would do. He told us he obtained this box at the State Street Exchange. * We then had the bonds our possession. Hatheway selected the safe-deposit vault. Then we went down with the $56,000 in bonds, Hatheway and I, to the vault. Hatheway had the check in payment of the rent with him. The check was drawn in Hatheway's office before we went down. It was * * in Hatheway's handwriting except my signature. The check was drawn to the defendant's manager and Hatheway received the receipt. I did just what Hatheway asked me to do. I didn't ask for any writing at all, or take any pains to examine any other writing or record fixing the terms on which we had the box, or had access to it. I left that just as I found it, except for signing my name on the card. I signed the card before we deposited the bonds. I asked Hinckley if he had also Hatheway's signature and he said yes. I didn't look at it. I knew Hatheway had signed his name to something. I thought it was the same thing I signed, but I didn't look at it or make any further inquiry as to what the writings were which defined the rights we had in that box. Then I went into the vault with Hatheway. I am not able to say that it was not Hatheway's key that opened the box; at any rate I knew he

*

*

had a key and I never took it from him. * He had gotten a box and had a key to it and kept it, and I allowed him to keep the key."

He further testified, that on July 15, 1920, he had told Hinckley he understood Hatheway had taken a box in the name of the estate, and "they wanted it fixed so that two would have to be present to enter. Hinck

time Browne signed Exhibit 5," and Hinckley also said, "they knew Hatheway, and let him come and go as he pleased." The evidence in the direct examination of the plaintiff West in so far as material was that he understood that while Hatheway had a key, access to the box could only be had by Browne and Hatheway together. But in cross-examination he admitted having written the defendant June 8, 1921, that he understood "that either Mr. Browne or Amos L. Hatheway * has access to the estate securities." The deposition of Smith in substance is that at the meeting of July 9, 1920, no objection was made to Hatheway "getting a box," nor was anything said as to "who should have the right to go to the box, or that Hatheway should be accompanied by one or more of the executors or trustees when he went to the box."

It is plain, from the foregoing summary, cured the safe, received a key, and had that the executors knew Hatheway had pro"signed something," which, upon further inquiry by Browne when he was given the receipt of July 13, 1920, would have disclosed the card, Exhibit 4, then of record, which in so far as material reads:

"Name, Estate of William Firth. Address, A. L. H. 626 Building. No. 2185, date July 13, 1920. Reference O. K. A. L. H. Signature, see back."

It is signed on the back:

"Amos L. Hatheway, Alexander S. Browne, Estate of William Firth, by Amos L. Hatheway."

It is unnecessary to decide whether Hatheway on the relations existing between them and the action taken on July 9, 1920, had been expressly authorized by the executors to hire the safe. The unequivocal conduct of Browne, to whom must be imputed knowledge of all the circumstances disclosed by the evidence, shows full acquiescence in what Hatheway had done. The defendant who acted in good faith relying on the records had a right therefore to recognize Hatheway as a person having lawful access to the safe, until notified that his right had been revoked. Foster v. Rockwell, 104 Mass. 167, 172; Harrod v. McDaniels, 126 Mass. 413; Auringer v. Cochrane, 225 Mass. 273, 275, 114 N. E. 355. See Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 4, 44 N. E. 990, 57 Am. St. Rep. 427. The conclusion is the same if the receipt, and the records, which are incorporated by express reference, are treated as the plaintiffs contend as constituting a contract, which cannot be varied by parol evidence. Abbott v. Frazier, 240 Mass. 586, 593, 134 N. E. 635; Dunbar v. Bromfield, 247 Mass. 372, 384, 142 N. E. 148. The case at bar is plainly distinguishable from De Friest v. Bradley, 192 Mass. 346, 78 N. E. 467; Mears v. Smith,

(146 N.E.)

nett, 226 Mass. 316, 115 N. E. 490; Goyette] American Surety Company of New York, as v. C. V. Watson Co., 245 Mass. 577, 588, 589, surety, on a bond given by Hanaford to the 140 N. E. 285. At the time the receipt was plaintiff town, of which he was the treasurer given, and payment accepted, Hatheway had and tax collector. The condition of the been designated in writing on the records bond is as follows: as a person who could have access to the safe, and the executors through Browne had knowledge of the rule, and also that Hatheway having been thus designated had received and retained a key. It follows under the contract, that he became the plaintiff's deputy. Secoulsky v. Oceanic Steam Navigation Co., 223 Mass. 465, 466, 112 N. E. 151. The entry must be: Judgment for the de

fendant on the verdict.

So ordered.

"Now, therefore, if the said principal shall faithfully perform all the duties of said office. as required by law, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue."

It was admitted by the defendants that Hanaford was treasurer and tax collector of Mansfield from December 16, 1921, to September 1, 1923; that the bond was given to secure the faithful performance of all the duties of those offices as required by law by the defendant Hanaford; that he had received as tax collector and treasurer of the town $2,086.88, which the duties of his office re

TOWN OF MANSFIELD v. HANAFORD quired him to pay to the town if the facts

et al.

(Supreme Judicial Court of Massachusetts.

Suffolk. Jan. 12, 1925.)

I. Towns 28-Town treasurer is public officer, and as depositary of money is required to give bond.

Since, under G. L. c. 60, § 2, tax collector is required to pay taxes to town treasurer, and under chapter 41, § 35, town treasurer must receipt and account therefor, treasurer is public officer required to give bond for moneys of town in his custody.

2. Towns 32-Town treasurer held liable for town funds in his custody stolen from safe furnished him.

Town treasurer, being required under G. L., c. 60, § 2, chapter 41, § 35, to take charge of town's moneys turned over by tax collector, takes risk of safe-keeping of money actually received, and loss by theft is no excuse for nonperformance, even though safe in which to keep moneys collected was furnished him by town.

3. Towns 32-Town treasurer liable for interest only from time demand was made on him for money in his hands.

Town treasurer, not being required to put money in his hands at interest, was not in default or chargeable with interest until demand was made on him.

alleged in the defendants' offer of proof did not constitute a defence to this action.

The defendants made an offer of proof in substance as follows: The plaintiff, during the time material to this action, owned a town hall in which the offices of the various town officials were located, and an office was therein furnished for the sole use of the tax collector and treasurer. In this office there was a vault and a safe, owned by the town, for the exclusive use of Hanaford as tax collector and treasurer. At the close of business on May 16, 1922, he had in his possession as treasurer a large number of checks and $3,500 in cash which he had collected but had not been able in the exercise of due diligence to deposit in a bank; he divided the money, putting part in the safe and the balance in the vault, both of which he locked. At some time during that night the office was entered, the safe opened, and the money therein, amounting to $2,086.88, stolen by some person unknown to the defendants. The trial judge excluded the testimony so offered on the ground that it would not be a defense to the action, and the defendants excepted. The judge then, subject to the defendants' exception, ordered a verdiet for the plaintiff for $30,000, the penal sum of the bond; and ordered that execution

Report from Superior Court, Suffolk Coun- issue against the defendants in the sum of ty; Franklin T. Hammond, Judge.

Action of contract by the Town of Mansfield against W. Frank Hanaford and another on bond given by named defendant as treasurer and tax collector. Verdict for plaintiff, and case reported. Judgment on verdict.

F. W. Fisher, of Boston, for plaintiff.
A. T. Smith, of Boston, for defendant.

CROSBY, J. This is an action against the defendant Hanaford, as principal, and the

$2,319.65, the principal ($2,086.88) with interest from May 16, 1922.

The statutory duty of a tax collector requires him, upon receiving a tax list and warrant from the assessors, to collect and pay over such taxes and interest to the town treasurer according to the warrant. G. L. c. 60, § 2. A town treasurer is required by statute to receive and take charge of all moneys belonging to the town and pay over and account for the same according to the order of its authorized officers. G. L. c. 41, § 35.

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