(146 N.E.) Many of the assertions made by the defend-1 A. K. Reading, Dist. Atty., R. T. Bushnell, ant the jury could have found were inten- First Asst. Dist. Atty., and Arnold Leonard, tionally false and misleading. On this evi- Asst. Dist. Atty., all of Boston, for the Comdence, in connection with the fact that the monwealth. jury could refuse to believe the explanation L. A. Mayberry, of Boston, for defendant. given by the defendant as a reason for his being at this particular place, at this early

RUGG, C. J. The defendant was tried hour of the morning, in the presence of his companion, with a large part of the stolen upon an indictment charging larceny, in that: property in their automobile, it could have "He did, with intent to defraud, obtain by been found that the defendant had knowl- | false pretenses certain divers sums of money edge that the felony was committed by Del of the value of more than $100 of the property Grosso, and that the defendant was in this of Ernest Linegar.” place, expecting the arrival of the Packard car, and was aiding and assisting the prin

[1] There was evidence tending to show cipal to avoid detention and arrest. The

that the defendant, then a member of the request for a directed verdict and motion to bar, was retained by one Hughes and one set aside the verdict were denied properly.

Linegar, to defend them; each being unExceptions overruled.

der indictment for receiving stolen goods. Hughes testified that he made an arrangement with the defendant whereby he was to pay the latter $4,000, in return for which the

defendant guaranteed with respect to the inCOMMONWEALTH V. LEVENSON.

dictment that "nothing will happen; the

worst will be probation"; that it was under(Supreme Judicial Court of Massachusetts. stood that out of this sum the defendant was Middlesex. Jan. 8, 1925.)

to pay wbatever might be necessary in way 1. False pretenses Om51-In prosecution for of restitution to the persons injured by the larceny of money by false pretenses, evidence thefts and keep the rest as his own for serv. held to make jury question.

ices; that he paid the defendant $3,800, leav. In prosecution of attorney at law for lar- ing a balance on March 26, 1921, of $200. ceny in obtaining by false pretenses sum of Linegar testified that he made an arrangemoney from client, for whom he was to make ment with the defendant whereby he was to restitution to persons injured by thefts, evi- pay the latter $500 for defending him, a part dence held to make question for jury as to of which was to be used for making restituwhether he represented that injured persons de- tion to those injured by the thefts, and the manded larger sum than had been anticipated, balance, was to be kept by the defendant as and whether this was representation of fact.

his own for his services, and that prior to 2. Criminal law Om814(3)-Instruction not March 26, 1921, he had paid to the defendresting on evidence rightly refused.

ant $500. On that date the three were at Where commonwealth's evidence was that the courthouse and the defendant, after condefendant obtained money by representing that it was needed to make restitution for client's ference with an assistant to the district atthefts, and defendant's that he made no rep- torney and an attorney representing those resentations, defendant's prayer that, if he from whom the goods received by Hughes made representations only for purpose of get- and Linegar had been stolen, told both Hughting money due him, and not to obtain money es and Linegar that more money was need. not due him, he should be found not guilty, was ed, and then told Linegar that $200 more rightly refused.

must be paid for restitution and that Line3. Criminal law Om 1134 (3)-Request inappo- gar made that payment to the defendant. site to record not determined.

There was further ample evidence to the ef. Where request was inapposite to record, fect that the statement that $200 more was is unnecessary to determine whether it was needed by way of restitution was wholly sound in law.

false and that the defendant paid in settle4. Criminal law w 450—Evidence calling for ment by way of restitution at that time only witness' opinion rightly refused.

$950, and subsequently only $140 more, and Evidence which called for opinion of wit- that these sums were all the money that was ness as to law, in light of inferences to be thus paid. The testimony of the defendant drawn from evidence, was rightly refused. in substance was that Hughes agreed to pay

him $1,000 and Linegar $500; that he at the Exceptions from Superior Criminal Court, time made full disclosure of his payments by Middlesex County; Hammond, Judge. way of restitution ; that he made no state

Harry E. Levenson was convicted of lar- ment to the effect that $200 additional was ceny in obtaining by false pretenses certain needed for restitution, and that he simply money of value of more than $100, and he asked Linegar for $200, which was paid to excepts. Exceptions overruled.

him on request, and that that payment comwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

pleted the amount due to him from both de, of obtaining money not due him, then” he fendants.

should be found not guilty. This was denied The request for the direction of a verdict rightly. There was no evidence on which in favor of the defendant upon this state of such a finding justly could rest. The dethe evidence was denied rightly. The false fendant gave no testimony of that nature. pretense which induced the payment might His testimony was that he made no misrep well have been found on all the evidence to resentations whatever and that he simply inbe that a larger sum had been then and sisted upon performance of a contract made there demanded in restitution by the attor with him. The evidence of the witnesses ney representing the persons from whom the called in behalf of the commonwealth was goods had been stolen than bad been antici- diametrically opposed to that given by the pated or foreseen when the contract as to defendant and was that the defendant depayments to the defendant had been made. manded the $200 solely because it was necIt might have been found to be, not a prom- essary, as he said, in order to make the res. issory representation nor a statement as to titution demanded. The defendant had no future expectation, but an assertion of a past right to an instruction of the character reor present fact. Commonwealth v. Drew, 19 quested. Commonwealth v. Hassan, 235 Mass. Pick. 179. Commonwealth v. Althause, 207 26, 32, 126 N. E. 287; Plummer v. Boston Mass. 32, 93 N. E. 202, 31 L. R. A. (N. S.) Elevated Railway, 198 Mass. 499, 516, 84 N. 999. There is no disposition on the part of E. 849; Walsh v. Adams, 245 Mass. 1, 10, the court, either in criminal or civil cases, 139 N. E. 379; Director General of Railto extend legal immunity for falsehoods be- roads v. Eastern Steamship Lines, 245 Mass. yond bounds already established. Mabardy 385, 401, 139 N. E. 823; McDonough v. Vozv. McHugh, 202 Mass. 148, 149, 88 N. E. 894, zela, 247 Mass. 552, 560, 142 N. E. 831. The 23 L. R. A. (N. S.)) 487, 132 Am. St. Rep. request was inapposite to the record. There484, 16 Ann. Cas. 500; Commonwealth v. fore it is unnecessary to determine whether Quinn, 222 Mass. 504, 513, 111 N. E. 405.

the request was sound in law.

Compare There was sufficient evidence to support a Commonwealth v. McDuffy, 126 Mass. 467, finding that the alleged representation was commonwealth v. Burton, 183 Mass. 461, 67 false. If the testimony of the witnesses oth- N. E. 419, and Commonwealth v. Peakes, 231 er than the defendant was believed, there Mass. 449, 457, 121 N. E. 420. was no rational escape from that conclusion. [4] There was no error in the rulings re

The inference well might have been drawn specting evidence. The several questions put from all the evidence that the payment of to the witness Linegar on cross-examination, $150 in cash and a $50 Liberty bond made by as to what false representations were made Linegar to the defendant was intended to to him, were not necessarily admissible. pass title to the latter, who might make the They called for an opinion as to the law in restitution to the injured owners in any the light of inferences to be drawn from form of security satisfactory to him and evidence. Commonwealth V. Burton, 183 them.

Mass. 461, 473, 67 N. E. 419. The defendant requested that an instruc Other exceptions to evidence have not been tion be given to the jury to the effect that, argued and are treated as waived. if the defendant received from Linegar or Exceptions overruled. Hughes or from both only money enough to pay what was actually due him, then he should be found not guilty. This request, so far as sound, was given in substance.. The contention of the defendant was set out at

CHISHOLM V. HART et al. length in the charge. To that statement no exception was taken. The jury then were (Supreme Judicial Court of Massachusetts. told plainly that, if the sum paid on March

Middlesex. Jan. 9, 1925.) 26, 1921, was merely the balance due upon a

Release E27-Joint release by two releasors contract made by the defendant with Line

held not to release obligation due one of gar and Hughes, then the latter had no in

them, terest in the amount of the restitution and

Joint release by plaintiff and another of it would make no difference whether such all obligations due them by defendant held not contract was lawful, or not. That was suf- release of obligation due from defendant to ficiently favorable to the defendant, Plainly plaintiff in severalty, though including parties' it was open to the jury to find that it was heirs, executors, and administrators. not paid for that purpose in the minds of any of the parties.

Exceptions from Superior Court, Middle[2, 3] The defendant further prayed for an

sex County; S. E. Qua, Judge. instruction that, if “the defendant made rep Action of contract by Roderick Chisholm resentations only for the purpose of getting against Martin J. Hart and another to recov. the money due him and not for the purpose ler commission for sale of certain real estate.

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

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(146 N.E.) Verdict for plaintiff, and defendants except. | to Chisholm individually were in accord with Exceptions overruled.

familiar law. Averill v. Lyman, 18 Pick. 346; The following joint release was executed bler Works v. Mitchell Woodbury Co., 215

Reed v. Tarbell, 4 Metc. 93; Rochester Tumby plaintiff and another:

Mass. 194, 102 N. E. 438.
"Release of all Demands.

Exceptions overruled.
"Exhibit 1.
“Know all men by these presents that we,
Fred L. Vance and Roderick Chisholm, both
of Lowell in the county of Middlesex, for and
in consideration of the sum of one dollar

PIZER v. HUNT et al.
dollars to us paid by Martin J. Hart, the re-
ceipt whereof is hereby acknowledged, have

(Supreme Judicial Court of Massachusetts. remised, released and forever discharged, and

Suffolk. Jan. 10, 1925.) we do hereby, for ourselves, heirs, executors, 1. Novation om 12–Evidence held to warrant administrators and assigns, remise, release and

finding that, on assignment of account with forever discharge, the said Martin J. Hart or

brokers, they made new contract, discharging his heirs, executors and administrators, of and

assigned account from liens under another acfrom all debts, demands, actions, causes of ac

count of assignor.
tion, suits, dues, sum and sums of money, ac-
counts, reckonings, bonds, specialties, cove-

Where plaintiff's assignor bad two accounts
pants, contracts, controversies, agreements, with defendant stock brokers, and assigned one
promises, doings, omissions, variances, damag- of them to plaintiff, evidence held to warrant
es, extents, executions and liabilities whatso- finding that defendants made a complete nova-
ever, both in law and equity, or which may re- tion, by new contract on valid consideration
sult from the existing state of things which with plaintiff at time of assignment, thereby dis-
has existed between the said Martin J. Hart, charging assigned account from liens and obli-
and especially is the said Martin J. Hart re- gations of assignor on the other account.
leased from any claims of any nature in law or

2. Pleading Ow 236(5) Allowing amendment equity which we have or ever had because of

after trial held within trial court's discretion. being interested with him in the building of certain houses bordering on Durant street

Where amendment to declaration, permitted and Beacon street in said Lowell, or for any under G. L. c. 231, $ 51, set up no allegations other matter which we now have or ever had which were not covered by evidence, there was from the beginning of the world to the day of no abuse of discretion in its allowance. the date of these presents.”

3. Constitutional law Om314-Party to action Farley & Tierney and E. J. Tierney, all of

is without vested right to have case deterLowell, for plaintiff.

mined on procedure mistakenly chosen. Cregg & Cregg, of Lawrence, for defend- due process clause to have case decided and de

Party to an action has no vested right under ants.

termined on form of procedure which may have

been inadvisably or mistakenly chosen. WAIT, J. The exceptions in this case must be overruled. The release relied upon by the Exceptions from Superior Court, Suffolk defendant is a general release of all demands County ; Stanley E. Qua, Judge. held by Chisholm and Vance against Hart. It is, manifestly, a joint release. The bill of assignee of one P. E. Gash, against William

Action of contract by A. Pizer, as alleged exceptions states that the transaction upon Hunt and others, to recover credit balance which the plaintiff bases this suit has no con- and certain securities carried in margin acnection with the building operations referred count. General finding for plaintiff, and deto in the release and there is no claim that

fendants except. Exceptions overruled. Fred Vance was concerned in it in any way. The release relates solely to joint obligations.

M. M. Horblit and H. A. Eyges, both of Nothing in its language indicates that it deals Boston, for plaintiff. with individual claims of Chisholm or of

P. H. Kelley, of Boston, for defendants. Vance. The presence of the words "heirs, executors, administrators and assigns” has

PIERCE, J. From the report of the audino tendency here to show an intention to give tor, and evidence introduced at the jury. a several character to the instrument.

Mor- waived hearing, it appears that on May rison, Appellant, v. American Surety Co., 224 12, 1919, Gash opened a margin account with Pa. 41, 73 A. 10, cited by the defendant, dif- the defendants under the name of "P. E. fers materially from the case before us, and Gash,” and signed a customer's registration does not sustain his contention.

card. This card set out certain stipulations The refusals to charge as requested and the and conditions which should govern the instruction actually given that Chisholm and transactions between them, and contained Vance's joint release of an obligation due to a paragraph reading: them jointly was no bar to a suit by Chis- “(2) In the making of loans or the delivery holm on an obligation then due in severalty of securities either for my account or for the

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

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account of your other customers in the usual “Please transfer my account to that of A. and regular course of your business, I hereby Pizer [the plaintiff] 655 Cross street, Malden authorize you to loan, hypothecate or otherwise and oblige." use all securities held or carried for my account from time to time upon the understanding that The defendants assented to the assignthe same shall be delivered upon payment of ment, the plaintiff signed a registration the amount due on my account; and I authorize card, in form similar to the registration you without demand or notice, to close out at card signed by Gash when his accounts were public or private sale my account or securities

opened. The defendants closed the No. 1 held or carried therefor, whenever you deem it

account on their books and opened a new acnecessary for your protection.”

count in the name of "A. Pizer,” and thereAt the time the "P. E. Gash" account was after, in their bookkeeping and in their opened on May 12, 1919, Gash deposited $1,- monthly accounts, treated Pizer as the per000, in accordance with the custom of son with whom they were dealing so far as brokers as to so-called margin accounts, and concerned account No. 1 and the securities thereafter the defendants executed various carried on that account. orders for the purchase and sale of secu- There were 440 shares of stock in the No. rities on orders of purchase and sale signed 1 account, and these shares were credited in by P. E. Gash, shown on the original ledger | the name of A. Pizer on January 31, 1920, sheets, beginning May 12, 1919, and ending and debited with the sum of $22,591.95. January 31, 1920. In August, 1919, Gash On February 4 and 5, 1920, 340 shares of opened a second margin account with the stock were sold out of the 440 shares of defendants, this account being carried on stock that were in the No. 1 account on Jantheir books as “P. E, Gash a/c 2.In Sep-uary 31, 1920. The liquidation of the tember, 1919, A, N. Gash, brother of P. E. No. 1 account removed and voided the debit Gash, transferred an account belonging to side of the account and left a credit balhim to Phillip E. Gash and the defendants ance on April 30, 1920, of $1,437.18, 100 merged this account into the "P. E. Gash shares of International Nickel of the then a/c 2," so designated. Prior to January 31, value of $1,950 and a Liberty Bond of the 1920, Gash traded in the two margin ac- | value of $45. On April 30, 1920, the plaincounts, gave orders for the purchase and tiff made a demand on the defendants for sale of securities for his accounts on signed the payment of the balance standing to printed slips, the order itself identifying the his credit on that day, to wit, $1,437.18, and particular margin account which he intend for the delivery to him of the 100 shares ed the order to be charged to and carried in. of International Nickel and the Liberty These accounts were kept on separate and Bond. The defendants, speaking through independent ledger sheets and prior to Jan- one Dennett, the manager in charge of the uary 31, 1920, monthly statements were sent business, refused to meet this demand, claimto P. E. Gash of the No. 1 and No. 2 ac- ing to hold the No. 1 account to protect the counts separately.

No. 2 account, as the defendants had notified On January 31, 1920, Gash owed the de- the plaintiff they should do on February 10. fendants on the shares of stock which the de- 1920. On April 30, 1920, taking both acfendants were carrying for him on the "No. counts together there was a debit balance 1 account” $22,591.95. It further appeared | in cash of $1,237.20 after crediting the cash that a then liquidation of this account would balance due on the No. 1 account against the have produced a credit balance of $5,488.05 debit due under the No. 2 account and neiat the high price and of $4,150.80 at the lowther the plaintiff nor P. E. Gash bas ever price of the stocks, had they been sold on at any time offered to pay the said debit that day. It further appeared that on the balance due the defendants. There were no same day Gash owed the defendants on the purchases on the No. 1 account after Janshares of stock they were carrying for him uary 31, 1920, and since April 30, 1920, to on the No, 2 account $5,154.81, and that on the time of the trial there was no change in sale of these stocks there would have been either the No. 1 or No. 2 account. an equity of about $150.

For the defendant there was evidence, if On January 31, 1920, Gash made a written believed, to warrant a finding that the asassignment to the plaintiff of all his right, signment was feigned, was intended only to title and interest in certain enumerated protect the account against creditors of stocks as “credited by the defendants,” which Gash, and that Pizer and Gash were told by stocks were those carried by the defendants the defendants' manager before the new acin the No. 1 account. The same day Gash count was opened, “We will do this to acand the plaintiff went to the office of the commodate you, but you must remember that defendants and Gash notified the officers of our right will in no way be affected by the the defendant firm that he desired to trans- transfer." fer his account No. 1 to the plaintiff. An (1) Notwithstanding the fact that the acorder was thereupon drafted for, and signed count which was opened with Gash on May by, Gash in the office of the defendants. The 12, 1919, was separated into accounts numa order reads as follows:

bered 1 and 2 and thereafter until Jan

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(146 N.E.) uary 31, 1920, was treated as if each ac- duly excepted to the allowance, and now count had been owned by different individ- contend that the allowance of the amenduals, it is obvious the defendants had a gen

ment after the trial of the case on "the aleral lien on all the securities purchased for leged right of the plaintiff to demand such the account of P. E. Gash and credited to credits and securities in his capacity as him in the No. 1 and No. 2 accounts, to se

the assignee

operated to deprive cure the payment of the general debit balance these defendants of their property without of $27,746.76 then due and payable on de due process of law as secured by the Fourmand, if there was no special contract limit- teenth Amendment to the federal Constituing the general lien rights of the defendants. tion-inasmuch as the defendants never had Clark v. Northampton National Bank, 160 any hearing or trial at all nor any opporMass. 26, 35 N. E. 108; Wood v. Boylston tunity to be heard in their defense to the National Bank, 129 Mass, 358, 359, 360, 37

said ground of liability upon which said Am. Rep. 366. We agree with the conten finding in favor of the plaintiff is based.” tion of the defendants that Gash on January

The amendment allowed sets up no allega31, 1920, on the evidence before us, could

tions which are not covered by evidence. A not have compelled the defendants to pay

party to an action has no vested right to Gash the credit balance shown in account

have a case decided and determined upon a

form of procedure which may have been inNo. 1 on that day, without deducting the debit balance as it then stood in account No. advisably or mistakenly chosen. The evi2. In the absence of an agreement to re

dence may show a substantial variance believe the securities in the No. 1 account from

tween the allegations of the declaration the burden of the debt of Gash to the de

and the proof, and at the same time disclose fendants in the No. 2 account, the assign: cretion may make available and valuable

a legal right which the court in its disment of the shares in the No. 1 account by the allowance of an amendment "in mattransferred to Pizer the right only which

ter of form or substance.” Ball v. Claflin, Gash then had in such account and in the securities named in the assignment and

5 Pick. 303, 304, 16 Am. Dec. 407; Beers v.

McGinnis, 191 Mass. 279, 77 N. E. 768; credited in the account.

Stevens v. Nichols, 157 U. S. 370, 15 S. Ct. The "substitute declaration" is founded

640, 39 L. Ed. 736. We find no error in the solely upon the theory of an accepted as

allowance of the amendment. signment of a part of an entire account which part, for the convenience of the assignor, the brief which is based on exceptions and

We have considered every point argued in was separated from the remaining part on

find no reversible error. the books of the defendant. On the facts

Exceptions overruled. above set out it is plain the plaintiff could not recover when the writ was served if the right vf recovery rests upon the assignment right of Gash to recover the balance found due upon an accounting. But the evidence warranted a finding that there was a complete novation between the plaintiff, Gash and the defendants, whereby account BRUSH et al. v. CITY OF NEW BEDFORD.. No. 1 was discharged of all liens, save such

(Supreme Judicial Court of Massachusetts. as pertained to the charge of the defendants

Bristol. Jan. 10, 1925.) against the securities assigned to the plaintiff and enumerated in the assignment and Taxation Om88—Nonresident brokers, holding the account, and whereby the plaintiff be

warehouse receipts, held "owners" of cotton. came charged with, and Gash became dis

Where warehouse receipts for cotton, docucharged from, the debit obligations of that ments of title under G. L. C. 105, $$ 46, 54, and

under which title could be passed as intended account. The evidence therefore warranted

under G. L. c. 106, $ 20(1), were issued to nonthe finding that the defendants on January resident cotton brokers, and in sales potes giv31, 1920, made a new contract for a valuable

en by them title did not pass till paid for, broconsideration with the plaintiff, and that kers controlling receipts April 1, 1920, payment thereafter the rights and obligations of the for which was yet to be made by buyer, were plaintiff and defendants stood distinct and rightly assessed as "owners," under St. 1909, apart from the contractual relations which

C. 490, pt. 1, § 23, as amended by St. 1918, c. came into existence in May and August, 1919, 129. between the defendants and Gash.

[Ed. Note.-For other definitions, see Words

and Phrases, First and Second Series, Owner.] [2, 3] The presiding judge under the authority of G. L. c. 231, § 51, allowed the plaintiff to amend his declaration "by setting

Exceptions from Superior Court, Bristol

County; H. T. Lummus, Judge. up specifically the making of a new contract butween the plaintiit and the defend

Petition by Charles N. Brush and others ant on January 31, 1920." The defendants

for abatement of taxes assessed by the City CaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and ludexes

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