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(146 N.E.)

those in force when Commonwealth v. Boyd, | Kane v. New Jersey, 242 U. S. 160; 37 S. Ct. 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 30, 61 L. Ed. 222, and Pierce Oil Corp. v. 464, was decided, and the extensive revenue Hopkins, 264 U. S. 137, 44 S. Ct. 251, 68 L. now received from that source have wrought Ed. 593, that the enactment of a statute such a change in the nature of that exaction from as is outlined in the present question would a mere fee to a tax. While the exaction may violate no provision of the Constitution of still partake of some of the characteristics the United States. of a license fee, it is in essence a kind of tax- No opinion is expressed upon the validity ation. It rests for its validity upon the of the proposed bill in all its details. Opinpower of taxation to be found in the Consti- ion of the Justices, 239 Mass. 606, 612, 133 tution. The schedule of fees established by N. E. 453. It has been examined and refG. L. c. 90, § 33, is not a property tax. It erences have been made to it for making is not based on value but on horse-power of plain the scope and point of the question. the motor vehicles. It is not proportioned Therefore we answer the question in the to the tax on other property. It is an excise affirmative. tax. It is an excise tax on the privilege of registering for operation upon highways a motor vehicle as to construction, size, horsepower, lights, safety equipment, and otherwise, proper to be used in conformity to standing laws, all as approved by public offices. That is a commodity upon which an excise tax may be levied. It falls within the scope of decisions already cited and quoted in part. It belongs to the kind of excises illustrated by Commonwealth v. Stodder, 2 Cush. 562, 573, 48 Am. Dec. 679, and Boston v. Schaffer, 9 Pick. 415.

That excise tax as to its subject is different from the excise outlined in the present question and proposed in the accompanying bill, which is an excise on the use of the highway by automobiles.

[10, 11] We assume that the assessment of two excise taxes, even though each be upon a separate basis and collected by different officers, for the enjoyment or use of one commodity by a single person for the same period of time would be unreasonable. Connecticut Insurance Co. v. Commonwealth, 133 Mass. 161, 163. The principle against double taxation stated in Otis v. Boston, 12 Cush. 44, 48, is assumed to be as applicable to excise as to property taxation. See Commonwealth v. People's Five Cents Savings Bank, 5 Allen, 428, 436. Accepting that principle fully, we are of opinion that while the proposed excise is closely akin to the excise upon the registration of motor vehicles, it nevertheless is sufficiently different as to the commodity upon which it is levied to avoid any constitutional inhibition. It is not obnoxious to the principle against double taxation.

The order requesting this opinion was received too late for answer before the adjournment of the honorable House of Representatives. This opinion has been prepared and is transmitted before the assembling of the new House of Representatives whose members were elected at the November election of 1924. The question whether an opinion can be required by one branch of the General Court for the use of its successor has not been considered. That question is left open and the answer now made is not to be taken as an expression of opinion on it.

ARTHUR P, RUGG.
HENRY K. BRALEY.
JOHN C. CROSBY.
EDWARD P. PIERCE.
JAMES B. CARROLL.
WILLIAM C. WAIT.
GEORGE A. SANDERSON.

C. B. ENSIGN & CO. v. FORREST. (Supreme Judicial Court of Massachusetts. Essex. Feb. 25, 1925.)

I. Bills and notes 368, 382-Want of delivery is no defense against holder in due course; that note was stolen not defense against innocent holder.

Under G. L. c. 107, § 38, want of delivery is not defense against holder in due course, even if instrument is stolen from owner.

2. Bills and notes 382-Instruction that even holder in due course could not recover, if notes were stolen from maker, held error.

In action by indorsee in due course against Our conclusion is that the "commodity" of maker of notes, instruction that, if jury was satregistering a motor vehicle as fit for use up-isfied that notes were taken by somebody who

on highways because conforming to all statutory requirements for the public safety is different from the commodity of actually using the highways of the commonwealth by the driving upon them of a motor vehicle. Each of these commodities may be subjected to an excise, provided the General Court in its wisdom determines that course to be wise. [12] It is settled by Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385;

came and took them away, if notes were stolen, even holder in due course could not recover, was

erroneous.

Exceptions from Superior Court, Essex County; H. A. Dubuque, Judge.

Action of contract by C. B. Ensign & Co. against John J. Forrest. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

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

Cregg & Cregg, of Lawrence, for plaintiff. I due course, even if the instrument is stolen J. J. Sullivan, for defendant.

CARROLL, J. This is an action by the indorsee against the maker of two promissory notes payable to the order of Partin Manufacturing Company, Incorporated. There was evidence that the plaintiff received the notes before their maturity without notice of any infirmity, paid value for them, and was a holder in due course. The defendant testified that the notes were in his possession when an agent of the Partin Manufacturing Company called on him and asked to see them; that the notes were signed by the defendant; that during his absence the agent took the notes; that after the agent had departed the defendant discovered the notes were gone; that he did not intend to deliver them, and they were not delivered. trial judge instructed the jury, in substance, that the plaintiff could recover if he was a holder in due course, even if the defendant never delivered the notes; and that the question of delivery was not important if the plaintiff was a holder in due course. But in the course of his instructions he said:

The

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from the maker. In Buzzell v. Tobin, 201 Mass. 1, 2, 86 N. E. 923, it was said:

"But the check was in the hands of the plaintiff as a holder in due course, and as to him a valid delivery by the defendant was conclusively presumed, even if this defense would have been open as between the original parties."

See Massachusetts National Bank v. Snow, supra; Town of Newbern v. National Bank, 234 F. 209, 148 C. C. A. 111, L. R. A. 1917B, 1019; Angus v. Downs, 85 Wash. 75, 147 P. 630, L. R. A. 1915E, 351; Montvale v. People's Bank, 74 N. J. Law, 464, 67 A. 67; Linbarger v. Board of Education, 83 N. J. Law, 446, 85 A. 235.

The recent case of Manker v. American Savings Bank & Trust Co. (Wash.) 230 P. 406, is not in conflict. In that case the stolen municipal bonds were payable only from a particular fund therein designated.

[2] Even if the notes were stolen from the defendant, if the plaintiff was a holder in due course he could recover; and although the instructions to the jury were adequate and accurate in all other respects, we think that the plaintiff may have been prejudiced by this particular instruction. The jury may have found that the notes were stolen from the defendant, and they may have found in favor of the defendant for this reaBecause of this error in the instructions, the plaintiff's exceptions are sustained. So ordered.

son.

PORTATION CO.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.)

Before the enactment of the Negotiable Instrument Act (G. L. c. 107), it was decided OLSEN v. NEW ENGLAND FUEL & TRANSin some jurisdictions that a bona fide holder could recover against the maker, although the instrument had never been delivered by the maker, and it had been stolen from him. Massachusetts National Bank v. Snow, 1871. Evidence Mass. 159, 72 N. E. 959; Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 488, 57 Am. Dec. 120; Kinyon v. Wohlford, 17 Minn. 239 (Gil. 215), 10 Am. Rep. 165; Clarke v. Johnson, 54 Ill. 296; Shipley v. Carroll, 45 Ill. 285.

In other jurisdictions it has been held that lack of delivery by the maker is a good defense against a bona fide holder for value. Sheffer v. Fleischer, 158 Mich. 270, 122 N. W. 543; Salley v. Terrill, 95 Me. 553, 50 A. 896, 55 L. R. A. 730, 85 Am. St. Rep. 433; Dodd v. Dunne, 71 Wis. 578, 37 N. W. 430.

[1] General Laws, c. 107, § 38, provides: "Where the instrument is in the hands of a holder in due course a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed."

So far as we have been able to find, the decisions of the courts on this section of the statute are in accord, in favor of the innocent purchaser, and hold that want of delivery is not a defense against the holder in

544-Witness held qualified to testify as to cause for breaking out of piece missing from stop valve.

In action for personal injuries through explosion of auxiliary stop valve of steamship boiler, machinist and steam engineer of 18 years' experience in repairing marine engines and boilers and building boilers, and with 9 years' experience at sea as engineer, was qualified from inspection of valve to state what would have been adequate cause for breaking out of piece then missing.

2. Appeal and error €203(3)—Party dissatisfied with qualifications of expert witness should object, and obtain rulings on sufficiency of his knowledge.

If defendant was dissatisfied with qualification of expert witness, it should have objected and obtained rulings on sufficiency of his knowledge as to matters then inquired about.

3. Shipping 86 (3)-Evidence as to explosion of stop valve held to leave question of negli. gence to speculation.

In action for personal injury to third person's employé, working on a steamship, through

(146 N.E.)

explosion of auxiliary stop valve of boiler, evi- | be certain just what caused the break. The dence held to leave question of defendant's negligence wholly to speculation or conjecture, making it court's duty to direct for defendant.

Exceptions from Superior Court, Suffolk County; Louis S. Cox, Judge.

Action of tort by Thomas M. Olsen against the New England Fuel & Transportation Company, to recover for injuries received through explosion of auxiliary stop valve of boiler, while working on defendant's steamship as employé of third person. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

W. R. Bigelow, of Boston, for plaintiff.
G. P. Wardner, of Boston, for defendant.

WAIT, J. The bill of exceptions presents two questions: Was the testimony of Stromberg properly admitted? Was there evidence of negligence sufficient to entitle the plaintiff to go to the jury?

valve was of standard make, and had been in use since 1908, under a usual pressure while the vessel was at sea of 180 pounds per square inch. It had been closed for the two days before the accident and was under a pressure of about 120 pounds, which was the pressure at the time it gave way. There was no evidence of the lifetime of such a valve. It had been inspected yearly, the last inspection in the July preceding the December of the accident, and when inspected had been found in good condition. There was no evidence of any old crack. It was necessary to take the valve apart in order to inspect the region of the break. There was no evidence to show that it was usual to take such valves down oftener than once a year. There was no evidence that it had leaked or shown any defect in service. The opinion of Stromberg was the only testimony that the break might have resulted from a hammering caused by condensation in the steam pipe which [1, 2] The exception to the admission of brought a sudden and unusual strain upon the evidence must be overruled. Stromberg the casting at a time when it was under an was asked whether, from an inspection of undue strain due to being screwed down the valve whose breaking causing the in- improperly in closing it. Equally probable jury, he was able to state what would have explanations were shown. There was no evbeen an adequate cause for breaking out idence that, in fact, the valve had been the piece then missing This was a proper screwed down too tightly. We disregard the subject for expert testimony. The witness evidence that the spindle would have broken was a machinist and steam engineer who, for or stripped or the disk would have given the 18 years preceding, had worked repair-way before the casting would yield had too ing marine engines and boilers and building great pressure been used in screwing down boilers and who for 9 years before that had the valve; because, theoretically, the jury been at sea as an engineer. He had never might have disbelieved it. known a valve exactly like the one before him to break, but had known of the breaking of a similar valve. He knew something of castings and of cast iron, but never had made a study of them and did not know all about what defects came in castings and why. Obviously he was qualified to answer the question put to him. His experience enabled him to give evidence of value; even if it was not so universally comprehensive that it covered all possible matters involved in the breaking of a valve. No objection was made to further questions. If the defendant was dissatisfied with his qualification to answer them, it should have objected and obtained rulings on the sufficiency of his expert knowledge in regard to the matters then inquired about. As was said, with abundant citation of authority, in Johnson v. Lowell, 240 Mass. 546, 549, 134 N. E. 627, 629:

"It is settled that whether a witness offered as an expert is qualified to give an opinion, rests very largely in the discretion of the presiding judge whose decision will not be reversed unless clearly erroneous as matter of law."

No clear error of law appears.

[3] The evidence, taken most strongly for the plaintiff, shows that the valve broke in the cast-iron casting, and that no one could 146 N.E.-42

We think the evidence leaves wholly to speculation or conjecture whether the defendant was negligent. It does not present facts which show negligence. It is fully as consistent with the absence as with the presence of carelessness. In such a case it is the court's duty to direct a verdict for the defendant. Doyle v. Boston & Albany Railroad, 145 Mass. 386, 14 N. E. 461. In Griffin v. Boston & Albany Railroad, 148 Mass. 143, 19 N. E. 166, 1 L. R. A. 698, 12 Am. St. Rep. 526, Mooney v. Connecticut River Lumber Co., 154 Mass. 407, 28 N. E. 352, Lowner

v. New York, New Haven & Hartford Railroad, 175 Mass. 166, 55 N. E. 805, Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 62 N. E. 379, and Heuser v. Tileston & Hollingsworth Co., 230 Mass. 299, 119 N. E. 683, there were facts furnishing far more basis for trustworthy inference than are presented here. Beattie v. Boston Elevated Railway, 201 Mass. 3, 86 N. E. 920, perhaps comes as near this case on its facts as any other, but in that case there was testimony that only through defects in the condition of the electric mechanism and equipment of the car (matters which could have been observed readily on inspection) could the explosion have occurred.

The case falls within the line of decision

As contract of minor as surety on poor debtor's recognizance is without direct benefit to him, he is at liberty to avoid it, unless after coming of age he has confirmed it. 7. Infants 56 — Misrepresentation of age does not preclude plea of minority.

illustrated by Clare v. New York & New | 6. Infants 47-Minor's contracts of suretyEngland Railroad, 167 Mass. 39, 44 N. E. ship are voidable. 1054, Wadsworth v. Boston Elevated Railway, 182 Mass. 572, 66 N. E. 421, Sheehan v. Goodrich, 207 Mass. 99, 92 N. E. 1005, Ridge v. Boston Elevated Railway, 213 Mass. 460, 100 N. E. 667, Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, 112 N. E. 1025, and Hanna v. Shaw, 244 Mass. 57, 138 N. E. 247, and within the principle stated by Sheldon, J., in Carney v. Boston Elevated Railway, 212 Mass. 179, 180, 98 N. E. 605 (Ann. Cas. 1913C, 302, 42 L. R. A. [N. S.] 90):

"Where as here the cause of the accident has come from the lawful operation by lawful means of an authorized instrumentality, and where any damage or injury that has resulted may have come without any negligence of the defendant, but may have arisen merely as an unavoidable accident from the careful and skillful exercise of its lawful rights in spite of the observance of all proper precautions, there no liability can arise without some affirmative evidence of negligence."

The defendant's motion for a directed verdict should have been allowed. We need not consider the exceptions to the refusal of its requests for rulings.

The exception to the admission of evidence is overruled. The exception to the refusal to direct a verdict for the defendant is sustained.

So ordered.

J. G. PIERCE CO. v. WALLACE.

(Supreme Judicial Court of Massachusetts. Middlesex. Feb. 26, 1925.)

Misrepresentation of age by minor does not preclude plea of minority.

Appeal from Appellate Division of District Court's Northern District, Middlesex County.

Action of contract by the J. G. Pierce Company against J. Roger Wallace to recover on recognizance taken in poor debtor proceeding. The appellate division of district courts dismissed report from Third district court, and affirmed judgment for defendant, and plaintiff appeals. Affirmed.

J. E. Reagan, of Boston, for appellant.
K. G. Baker, of Boston, for appellee.

WAIT, J. This case is before us upon appeal from an order of the appellate division of district courts (Northern district) dismissing a report from the Third district court of Eastern Middlesex and affirming a judgment for the defendant.

The report presented for determination the question whether a surety upon a recognizance taken in a poor debtor proceeding could set up his minority as a defence, and thereby defeat recovery, after a breach of the recognizance.

[1] The plaintiff contends that there was error in the refusal of the trial judge to give certain requests of the plaintiff and in the

1. Appeal and error 987 (2)—Finding of fact giving of others presented by the defendant. by trial judge cannot be reviewed.

The judge found as a fact that the defendSo far as findings of trial judge that minorant was a minor when he became surety on had done nothing to preclude denial of liability, and had not ratified act, were matters of fact, the Supreme Judicial Court cannot, in view of G. L. c. 231, § 110b, added by St. 1922, c. 532, $ 8, review them.

2. Trial 386(3)—Refusal of request, rendered immaterial by finding, held without er

ror.

There was no error in refusal of requests, which were rendered immaterial by findings of defendant's minority and lack of ratification. 3. Infants 58(1) Certain contracts of minors are voidable.

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July 21, 1923, and that he did nothing thereafter and before suit which precluded him from denying liability, and nothing which amounted to a ratification of his act in entering into the recognizance.

So far as this was matter of fact we cannot review the finding. St. 1922, c. 532, § 8 (G. L. c. 231, § 110b).

[2] Several of the requests were refused because they were rendered immaterial by the findings of minority and lack of ratification. There was no error in such refusal.

With certain exceptions, contracts of mi- All the requests were dealt with properly,

nors are voidable. 4. Infants

if the minority constituted a defence.
[3-5] The law of Massachusetts is well set-

50-Contracts for necessities tled that, with certain exceptions, the con

are binding on minor.
Contracts for necessities are binding on

minor.

5. Infants

tracts of a minor are voidable. Carpenter v. Grow, 247 Mass. 133, 141 N. E. 859; Knudson v. General Motorcycle Sales Co., Inc., 230

46-Minor is liable on contracts Mass. 54, 119 N. E. 359; Benson v. Tucker, law requires him to make. 212 Mass. 60, 98 N. E. 589, 41 L. R. A. (N. S.) Minor is liable on contracts which the law 1219; McDonald v. Sargent, 171 Mass. 492, requires him to make. 51 N. E. 17. No citation of authorities is

(146 N.E.)

7(1)-Landlord's

action for rent against tenant not election of remedy, barring suit on covenant.

Landlord's action against tenant for rent accruing after breach, not being based on covenant of lease, did not constitute election of remedy, barring action on covenant for wrongful termination.

needed that contracts for necessities are for rent, without prejudicing right to recover binding upon him. He is liable on contracts on covenant against defendants. which the law requires him to make (Baker 2. Election of remedies v. Lovett, 6 Mass. 78, 4 Am. Dec. 88) such as a bond to appear and defend in a bastardy proceeding under R. S. c. 49, § 1 (McCall v. Parker, 13 Metc. 372, 46 Am. Dec. 735), or which it makes for him, such as the liability for a wife's debts contracted before marriage (Butler v. Breck, 7 Metc. 164, 39 Am. Dec. 768). Though we have no decision in this state, we have no doubt that he is liable on any recognizance given when accused of crime. Fagin v. Goggin, 12 R. I. 398; State v. Weatherwax, 12 Kan. 463; Starr v. Commonwealth, 7 Dana (Ky.) 243. G. L. c. 276, § 48, provides that a minor who is a material witness in a criminal matter may recognize for his appearance, and that the recognizance shall be valid notwithstanding the minority.

In these exceptional cases he is acting as a principal. Different considerations are presented where the minor is a surety.

[6, 7] The general ground for the imposition of liability when it exists is that some benefit has been received by the minor. Where the minor contracts as a surety there is clearly no direct benefit to him. We find no good reason for departing from the usual rule that the contract is voidable, and that the minor is at liberty to avoid it unless, after coming of age, he has confirmed it. This defendant has not received any benefit which it is inequitable that he should retain after a completed transaction as in Breed v. Judd, 1 Gray, 455, and Welch v. Welch, 103 Mass. 562. The judge has found that there was no statement made in regard to his age. We have held that a misrepresentation of age does not preclude the plea of minority. Knudson v. General Motorcycle Sales Co., Inc., supra.

3. Landlord and tenant

182-Action on

covenant brought only after expiration of full term of lease.

Where lessees covenanted that, if lease were wrongfully terminated by them, they would remain responsible for rent for full term, action on covenant could not be brought until full term expired.

Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.

Action of contract by the Merchants' National Bank against Edgar L. Ryerson and others to recover on a covenant in a lease of premises from plaintiff to defendants. Judgment for plaintiff, and defendants except. Exceptions overruled.

The covenant referred to was as follows: if the lessee shall neglect or fail to perform "This lease is made on condition also that, or observe any of the covenants or agreements herein contained, on the lessee's part to be performed or observed, *

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*

the lessor may, immediately, or at any time thereafter, enter into and upon the demised premises * and repossess the same as * and upon entry of its former estate, as aforesaid the lessee's estate shall end. And mination sponsible for the residue of the said term for the full rent herein reserved, whether the demised premises remain vacant or not, and shall be credited only with such amounts as

the lessee covenants that in case of such terthe lessee shall remain re

The judge has also found that there was shall be actually realized therefrom by the lesno confirmation.

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sor; in the event of any such termination, the lessor may immediately recover from the lessee the pro rata rent up to the time of termination, irrespective of the periods herein prescribed for the payment of rent.

"Any assent to any breach of, or any waiver of, any of the lessee's covenants by the lessor, whether express or implied, shall not be construed to be a waiver, except in that specific instance either of such covenants or of any subsequent breach thereof."

J. G. Bryer, of Boston, for plaintiff.
J. F. Neal and E. C. Barringer, both of
Boston, for defendants.

enant contained in a lease of certain premisWAIT, J. This suit is brought on a coves from the plaintiff to the defendants. It is not an action for rent or for payment for use and occupation by a tenant, but an action to recover an amount agreed to be paid upon the happening of certain events which

Where lessees covenanted that, if lease were wrongfully terminated by them, they would remain responsible for residue of term, landlord, after lessees' termination, before end of term, could permit occupation of premises by others and maintain actions against them have occurred.

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