THE NORTHEASTERN REPORTER VOLUME 146 Petition of TALBOT. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 12, 1925.) Walter H. Talbot was born in 1874, married the petitioner in 1896, and until December 4, 1915, lived in Norton, Mass., with his wife and one son, born in 1899. He had been engaged with others in the wool-scouring 1. Death 2(1)—Mere absence insufficient to business in which he had an interest. His raise presumption of death. Mere absence will not raise presumption of death, since absence must be from domicile or established residence, and it must appear that absentee had not been heard from by those who would be likely to hear from him, if he was alive. relations with his wife had not always been harmonious, but there had been no open breach. He was accustomed to leave his home on business without telling her. He was fond of his son and of his aged father, who was seriously sick when Walter H. Talbot left home, and who died about one year When presumption of thereafter. He had worked hard in his business, was sometimes discouraged and felt that his business associates did not treat him right and that his brother did not appreciate him. He was not in financial difficulties in connection with his business. If facts and circumstances surrounding one's departure from home indicate that he would not be likely to communicate with family and associates, and are such as to account for his absence unheard of, presumption of death does not arise. 3. Death sumed. For a number of years he had been calling on a married woman in Cambridge, and she 2(1)-Death of absentee not pre- had visited his house and was on good terms Facts held to warrant finding that absentee did not leave home for temporary purpose of business or pleasure, but with intention of abandoning family and business and starting anew in some other place, and to justify inference that he would not be likely to let family and associates hear from him, and hence to justify finding against presumption of death. Appeal from Probate Court, Bristol County; Mayhew R. Hitch, Judge. Petition in probate court by Jessie M. Talbot for appointment of herself as administratrix of the estate of Walter H. Talbot, alleged decedent. From a decree dismissing her petition, petitioner appeals. Affirmed. J. Albert Brackett, of Boston, for appellant. with his wife. He appeared to be infatuated with her for a long time, particularly the last month before he disappeared. She left her home without the knowledge of her husband on the same morning that Walter H. Taibot left and has not been heard from since. She took no money or personal belongings with her. Walter H. Talbot went away from his home in an automobile on December 4, 1915, and four days later sent his wife checks by which she could get the automobile and his fur coat which were in a garage in Boston. The letter containing these checks bore the postmark "Terminal Station, New York." Mrs. Talbot and son have continued to live in Norton and neither they nor any one else, so far as they know, have heard from Talbot since she received the letter containing the checks. A witness, engaged in the wool SANDERSON, J. This is an appeal from business and who was in a position in which a decree of the probate court for the county he would be likely to hear of most persons of Bristol, dismissing a petition of Jessie M. | prominently engaged in the wool business at Talbot, dated March 25, 1924, for the appointment of herself as administratrix of the estate of Walter H. Talbot, alleged in the petition to have died on or before January 15, 1924, and after the 4th day of December, 1915. home or abroad, had not heard from Talbot since December, 1915. After Talbot disappeared Mrs. Talbot found three letters in his desk, one addressed to her, one to her son, and one to both. The letter to the son stated in substance that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes it was a terrible thing for him (the father) | warrant a finding in favor of the plaintiff on to go away and leave his son, that he had this part of the case." been miserable at home, could not live "this way any longer"; that some day he hoped to have his son with him and he would come to him some day; that he (the son) was the one reason why it was hard to go. These three letters relate mostly to money which the mill owed Talbot and to other property he was giving to his son and wife, and contain instructions about it; one of them expressed the wish that he had more to leave them. In his letter to both he stated that he was not giving them much ready cash because he wanted some "to start anew with"; that he was doing the best he could for them and thought they would realize that they were "getting the bulk." With these letters was a power of attorney to the wife giving her authority to cash checks, transfer bonds, stocks and other securities, receive the pro ceeds thereof, and to raise money by loans on his insurance policies. The decree states in substance that it did not appear to the satisfaction of the court that Walter H. Talbot was deceased. The question presented by the appeal is whether the decree dismissing the petition for administration should be reversed. The appellant contends that as matter of law upon the facts found Walter H. Talbot is presumed to be dead and a decree should have been entered granting administration. The rule in regard to the presumption of death was stated by Chief Justice Shaw in Loring v. Steineman, 1 Metc. 204, 211, in the following language: "It is a well-settled rule of law, that upon a person's leaving his usual home and place of residence for temporary purposes of business or pleasure, and not being heard of, or known to be living, for the term of seven years, the presumption of life then ceases, and that of his death arises. * But this presumption may be rebutted by counter evidence * or by a conflicting presumption." * In Marden v. Boston, 155 Mass. 359, 29 N. E. 588, evidence was offered tending to show that a United States pensioner left the place where his wife and children lived in 1867, and that they, as well as those in authority at the pension department, made efforts to learn his whereabouts, but never heard from him after he left. The court said at page 360 (29 N. E. 588): "These facts, with nothing to control the inferences naturally to be drawn from them, point to his death [before January 1, 1881], and E. 809, the court refers to the presumption In George v. Clark, 186 Mass. 426, 71 N. of death as one that arises from a person's "unexplained absence." [1, 2] Absence alone, no matter how long continued, is not sufficient to raise the pre sumption of death. The absence must be from the person's domicile or established residence. Hitz v. Ahlgren, 170 Ill. 60, 48 N. E. 1068; Francis v. Francis, 180 Pa. 644, 37 A. 120, 57 Am. St. Rep. 668. In the case last cited the person left his home in Pennsylvania and settled in Patagonia. Under a change these circumstances there was of residence and it was held that the presumption of death did not arise from his absence from his home in Pennsylvania unheard of for seven years. It must appear that the person who had gone away had not been heard from by those who would be likely to hear from him if he were alive. Davis V. Briggs, 97 U. S. 628, 24 L. Ed. 1086; Wentworth v. Wentworth, 71 Me. 72. If the facts disclosed and the circumstances surrounding a person's departure from home indicate that he would not be likely to communicate with his family and former associates and are such as to account for his absence unheard of, the presumption of death does not arise. Matter of Wagener, 143 App. Div. 286, 128 N. Y. S. 164; Stephen, Digest of Law of Ev. art. 99. [3] The facts stated would warrant a finding that Walter H. Talbot did not go away for a temporary purpose of business or pleasure, but with the intention of abandoning his family and business and starting anew in some other place. His infatuation for the woman, who disappeared at the same time he went away, would justify the inference that he left under such circumstances that he would not be likely to let his family and former associates hear from him or know where he was. Upon the facts found the court might properly decide that the presumption of death did not arise and that the petitioner had not proved that Walter H. Talbot was dead. The statement in the decree to the effect that it did not appear "to the satisfaction of the Court that said Walter H. Talbot is deceased," we take to mean no more than that the allegation in the petition that "Walter H. Talbot died on or before the 15th day of January, 1924, and after the 4th day of December in the year of our Lord 1915" has not been proved. Decree affirmed. (146 N.E.) 1. Sales 124, 127-Buyer to rescind must notify seller within reasonable time; rescinding buyer must offer to return goods. Under Gen. Laws, c. 106, § 58, cl. 3, to entitle buyer to rescind, he must have notified seller within reasonable time of election to re scind, and must offer to return goods sold in substantially as good condition as they were when property passed. 2. Sales 121-Buyers, having used goods sold without offer to return them, could not rescind. Where buyers used goods sold ever since sale was made, and made no offer to return them, they could not rescind, but were chargeable with purchase price. not decide whether the representations of the agent could be found to be ground for such rescission. [1, 2] To entitle a buyer to rescind a sale, he must have notified the seller within a reasonable time of his election to rescind, and must return or offer to return the goods sold in substantially as good condition as they were in at the time when the property passed. This rule applies under the Sales Act, St. 1908, c. 237, § 69, cl. 3, now G. L. c. 106, $58, cl. 3, and is in accord with the rule of the common law. Dorr v. Fisher, 1 Cush. 271, 274. Bassett v. Brown, 105 Mass. 551; Skillings v. Collins, 224 Mass. 275, 277, 112 N. E. 938, Ann. Cas. 1918D, 424; Loomis v. Pease, 234 Mass. 101, 107, 125 N. E. 177. Williston on Sales, §§ 610, 611. The undisputed evidence shows that the defendants have used the goods sold ever since the sale was made, and that no offer has been made to return them. In these circumstances, they Exceptions from Superior Court, Suffolk cannot rescind the sale but are chargeable County; Hammond, Judge. Action of contract by the Edison Fixture Company, Inc., against A. Maccaferri and another, doing business as the Puritan Clothing Company, to recover balance of purchase price of electrical fixtures. Motion to direct verdict for plaintiff was allowed, and defendants except. Exceptions overruled. H. M. Lichtenstein, of Boston, for plaintiff. M. Collingwood, of Boston, for defendants. CROSBY, J. This is an action to recover the balance of the purchase price of seven electrical fixtures, sold and delivered to the defendants under a written contract. The defendant Penn testified that a salesman of the plaintiff showed him the fixture, which consisted of a "globe bracket, and contained a bulb"; that the salesman demonstrated the fixture and told the defendant that the bulb was a 100-watt bulb, and that it would give just as much light as the 150watt light which the witness was then using in his store; that the witness later received the fixtures from the plaintiff and installed them, "the fixtures corresponding in every particular to the one exhibited and demonstrated, and the defendant has used the fixtures and lights ever since that time and made the first payment on same, but no other payments were made." The defendants contend and offered evidence to show that the fixtures were equipped with 150-watt bulbs, and that by reason of false representations of the plaintiff's agent they were induced to make the contract. The contract contains the following recital: "All verbal or written agreements not mentioned in this contract are void." The defendants seek to rescind the sale because of the alleged false representations. We need for the contract price. The trial judge rightly allowed the plaintiff's motion for a directed verdict in its fa vor. Exceptions overruled. COMMONWEALTH v. SPEZZARO. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 8, 1925.) 1. Burglary ~41 (1)—Evidence held to sustain conviction of being accessory to breaking and entering and larceny. Evidence held sufficient to sustain convic tion under Gen. Laws, c. 274, § 4, of being accessory to breaking and entering and larceny of 50 rolls of cloth. 2. Criminal law 351 (2)—Intentionally false statements at time of arrest taken as admissions. Evidence of intentionally false statements made by defendant at time of his arrest, as to knowing thief or ownership of automobile used by thief, is admission from which guilt may be inferred. Exceptions from Superior Court, Middlesex County; J. H. Sisk, Judge. Angelo Spezzaro was convicted of being accessory after fact to breaking and entering and larceny of cloth, and he excepts. Exceptions overruled. A. K. Reading, Dist. Atty., and R. T. Bushnell, First Asst. Dist. Atty., both of Boston, for the Commonwealth. Volpe, Zottoli & Perkins, of Boston, for defendant. CARROLL, J. The defendant was charged with being an accessory after the fact to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes breaking and entering and the larceny of 52 rolls of cloth. He was tried jointly with one Del Grosso, who was convicted as principal. [1] There was evidence that the shop of one Max Doctoroff, in Cambridge, was broken into and 58 rolls of cloth taken away between the hours of 2 and 30 minutes after 2 on the morning of July 28, 1923; that about 40 or 45 minutes after 2 o'clock on the same morning, a Packard automobile driven by Del Grosso and containing another man was seen by police officers in Merrimac Square, Boston, approaching from Cambridge and moving at the rate of 30 to 35 miles an hour; that the officers failed to stop the car, but followed it and in about 4 or 5 minutes came upon it in front of 124 Prince street; that 2 rolls of the cloth were found in the stairway at No. 124 Prince street, 10 rolls just inside the door, and 3 rolls at the top of the cellar stairs; that the Packard car was "filled from the floor up to about the door or a little past"; that Del Grosso, when the officers appeared, was in the doorway of the Prince street premises, "without hat or coat"; and that he ran into the building and was finally captured. There was evidence that when the Packard car was found on Prince street the defendant was standing near a Dort touring car, directly across the street from No. 124 Prince street; that he was asked who owned the Packard car, and he said he did not know, and also stated that he did not know who were the occupants of the car; that when Del Grosso was arrested, he admitted ant and Del Grosso had often been seen together. There was no evidence that either the defendant or Del Grosso lived at 124 Prince street. The defendant testified that he sat down in the Dort car because he thought the Packard car would pass through Prince street on its way to the garage, about 150 feet distant from where the Dort car stood; that he fell asleep; that he had not been in Cambridge that night and had no part in the transaction. "He had nothing to do with the loading or unloading of that car or driving it into Boston and had no connection with it whatsoever." On cross-examination he stated that he saw Del Grosso between 7 and 8 o'clock in front of his (the defendant's) house when Del Grosso left in the Packard machine. He denied that he saw Del Grosso at 6 o'clock. He testified that the Packard car was kept in the "open air garage." There was also testimony from another witness that the defendant was seen asleep in the Dort car about 2 o'clock. The defendant's request for a directed verdict and his motion that a verdict of guilty be set aside were denied, to which rulings the defendant excepted. G. L. c. 274, § 4, provides: [2] The evidence showed the commission in the defendant's presence that he knew of a felony by Del Grosso. He was seen him, and the police officer then said to the by the police officers in the early morndefendant, "I thought you did not know this ing, driving an automobile at a high rate fellow," to which he answered, "Don't give of speed, in company with another man. me a cheap argument;" that the defendant also denied knowledge of the ownership of the Packard automobile, or where it came from, but subsequently said it belonged to Del Grosso, and when shown the bill of sale for it to himself and Del Grosso as vendees, admitted that it was owned by both of them. There was evidence that the defendant said to one of the police officers that he had not seen Del Grosso "at any time that night." There was also evidence that, at one time, the defendant admitted he had seen Del Grosso on Charter street "about 6 o'clock that night and * didn't meet him after that until after the officers came to Prince street"; that the Dort car belonged to a friend of his, that he sat down in it and fell asleep, and when the Packard automobile stopped he left the Dort car; that he "believed there were two other men beside Del Grosso. Just then the police came along and they ran away." There was evidence that "it was a nasty night and it had been raining"; that the were A few moments afterward he was found |