« ForrigeFortsett »
to be paid to his executrix. The record in state but payable in Massachusetts, makers that case does not disclose whether applica- could not be held as trustees under equitable tion for such compensation was made by the process. deceased employee and the question whether 5. Equity em 119 No jurisdiction acquired compensation for specific injuries could be over defendant by service on corporation. awarded upon a claim made by his personal In suit against nonresident seeking to reach representative was not considered. It is and apply shares of stock in corporation alleged therein stated that:
to be owned by defendant, where defendant “The right to an order for the future pay, risdiction over him was acquired by service
had no interest in stock of corporation, no jument of the special compensation ceases with
on it. the death of the person injured. It is a right peculiar to himself, not created for
6. Courts em 12(2)-Nonresident not appear. his dependents.”
ing generally, and having no property in ju.
risdiction, cannot be held to answer. The only provision in the statute for a payment of compensation to a legal represen- tached within jurisdiction, and he was nonresi
Where Do property of defendant was attative is for that payable in case of death, dent and did not appear generally, he could and such representative is required to pay not be held to answer. the money received to the “persons entitled thereto under this chapter." G. L. C. 152, 8 39. There is nothing in the act which sug ty; Hammond, Judge.
Appeal from Superior Court, Suffolk Coungests that an unasserted claim for compensation for specific injuries under G. L. c. 152, 8 Suit by Harry L. Pond against James 35 (e), is a vested right in the employee which Simpson and others, alleging debt due from passes to his personal representative. No defendant to plaintiff, and seeking to reach provision is made for the filing of a claim and apply in payment thereof note made by for, or the distribution of, such compensation defendants Edward L. Smeeton and another after the employee's death. It follows that to defendant's order, and shares of stock in there can be no award of such compensation the Richmond Worsted Spinning Company, upon a claim therefor made for the first owned by defendant. From an order sustime after the death of the employee.
taining a plea to the jurisdiction, and from a Decree reversed, and decree to be entered decree dismissing the bill, plaintiff appeals. in favor of the insurer.
J. E. Reagan, of Boston, for appellant.
E. R. Anderson and R. B. Owen, both of POND V. SIMPSON et al.
Boston, for appellees. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.)
RUGG, C. J. This is a suit in equity by
the plaintiff against the defendant Simpson, 1. Equity m119–Service by registered mail both residents of Maine, alleging a debt due held insufficient to bring nonresident in as from Simpson to the plaintiff, and seeking to party.
reach and apply in payment of that debt (1) In suit against nonresident, service by reg- a promissory note made by the defendants istered mail was insufficient to bring him in as Sneeton and Haddon to the order of Simpson, party and subject him to jurisdiction.
now overdue; and (2) shares of stock in the 2. Equity Aw235—Speaking demurrer to bill defendant corporation owned by Simpson,
on ground of want of jurisdiction rightly [1-3] No personal service was made upon overruled,
Simpson. The service by registered mail Speaking demurrer to bill for want of ju- was insufficient to bring him in as a party risdiction, setting out facts in addition to those and subject him to the jurisdiction of the stated in bill, was rightly overruled, but was not equivalent of general appearance.
court. Simpson has not appeared generally.
He appeared specially and filed a demurrer 3. Equity Om 127—Special appearance by, non. Ito the bill on grounds amounting in subresident not served with process held not stance to want of jurisdiction. It was a general submission to jurisdiction.
speaking demurrer, setting out certain facts If want of jurisdiction appeared on face of in addition to those in the bill. It was overbill, special appearance of nonresident not seryed with process, for purpose of demurrer on ruled rightly. Its manifest purpose was to that ground, would not be general submission raise solely the question of jurisdiction orer to jurisdiction.
the defendant Simpson. It was not the 4. Creditors' suit am 8(1)-Makers of note not equivalent of a general appearance. If want
held as trustees when note not within juris- of jurisdiction appeared on the face of the diction.
bill, a special appearance by a nonresident In suit seeking to reach and apply promis- defendant, not served with process, for the sory note made to defendant's order, where purpose of demurring on that ground, would note was in possession of defendant in foreign í not be a general submission to the jurisdic
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) tion of the court. Rollins v. Bay View Auto, tiff, and judgment ordered, and defendant Parts Co., 239 Mass, 414, 423, 132 N. E. 177. appeals. Order affirmed.  The defendant Simpson, still appearing
A. Glovsky, of Salem, for appellant. specially, filed a plea to the jurisdiction,
H. E. Miller, of Lynn, for appellee.
RUGG, C. J.  This is an action of tort any shares of stock in the defendant corpo for the conversion of an automobile.
On ration; and (2) that the note referred to in April 1, 1920, the owner of the automobile the plaintiff's bill was at all times in the entered into a written agreement with one possession of the defendant Simpson in the Therrien for its conditional sale. By the state of Maine. The trial court found both terms of that agreement the title remained these facts to be as averred in the plea, and in the seller and did not pass to Therrien also that the note was made and payable in until the entire purchase price had been Boston. The makers of the note cannot be held as trustees under equitable trustee paid. At the same time Therrien paid $800
in cash and executed and delivered to the process upon these facts, when the note is seller a promissory note to the order of the not within the jurisdiction. That point is seller, payable in monthly installments, for settled by Sanger v. Bancroft, 12 Gray, 365. $1,470, the balance due on the purchase price.
 Since Simpson had no interest in the Thereupon Therrien was entitled to and took stock of the defendant corporation, no ju- possession of the automobile. Shortly after, risdiction over him was acquired by service the seller, for the sum of $1,352.40, transon the corporation. Dondis v. Borden, 230 ferred the note by indorsement, waiving de Mass. 73, 119 N. E. 184; Warr v. Collector mand and notice, and all rights under the of Taxes, 234 Mass. 279, 125 N. E. 557.
agreement to the plaintiff. This transfer of  No property of the defendant Simpson the agreement was not recorded. Subsewas attached in this jurisdiction. There
quently, Therrien returned the automobile fore, since he was a nonresident and did not to the seller, who sold it to the defendant. appear generally, he could not be held to
The question is whether the plaintiff, default answer to the suit in our courts. Cheshire having been made in the payments due on National Bank v. Jaynes, 224 Mass. 14, 112 the note and under the agreement, can mainN. E. 500; Pennoyer v. Neff, 95 U. S. 714, tain this action. 24 L. Ed. 565; Reynolds v. Mo. Kan. & Tex
When and after the seller transferred his as Ry. Co., 224 Mass. 379, 388, 113 N. E. 413. agreement for sale and indorsed the note Decree dismissing bill affirmed, with costs. to the plaintiff, he had no title or interest
whatsoever in the automobile. He possessed no evidence of title or interest. If the question arose between the plaintiff and a credi
tor or one standing in the shoes of a creditor LYNN MORRIS PLAN CO. V. GORDON.
of the seller, the plaintiff would have been (Supreme Judicial Court of Massachusetts.
unable to maintain its rights without giving Essex. Feb. 27, 1925.)
notice to Therrien, so that he would become
bailee of the automobile for the plaintiff in1. Sales en 475-Buyer of automobile on re-stead of the seller. Mann v. Huston, 1 Gray, sale by original seller held to have no title 250; Hallgarten v. Oldham, 135 Mass. 1, as against transferee of note and conditional sale contract.
9, 10, 46 Am. Rep. 433; Clark v. Williams,
190 Mass. 219, 76 N. E. 723; Duffy v. Charak, Where seller of automobile, retaining title until purchase price was paid, transferred note 236 U. S. 97, 35 S. Ct. 264, 59 L. Ed. 483. and all rights under conditional sale agreement But that is not the situation. The seller reto plaintiff, and buyer returned automobile to tained no title or interest. Therrien had no seller, its resale to defendant vested no title title or interest superior to that of the plainas against transferee of note and agreement, tiff. Whatever rights he had were subject though transfer was not recorded.
to the plaintiff's title. His wrongful con2. Sales Cw475–Transfer of automobile by duct in conjunction with the wrongful conseller to plaintiff not required to be recorded. duct of the original seller cannot defeat the
Where seller of automobile retained title title of the plaintiff. The seller stood no until price was paid, transfer of purchase price better than a stranger to the transaction. pote and rights under retention title agreement The defendant acquired no greater title than by absolute sale was not required to be record- his vendor was able to convey. He was in ed, under St. 1915, c. 226, then in force. no position to dispute the title of the plain
Royle v. Worcester Buick Co., 243 ty; Hugo A. Dubuque, Judge.
 The transfer of the automobile by the Action of tort by the Lynn Morris Plan seller to the plaintiff was not by way of seCompany against Louis N. Gordon for con- curity or mortgage. It was an absolute sale. version of automobile. Finding for plain-) It was not requisite that the instrument of
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
transfer, which was in effect a bill of sale, \ the poor debtor session of the Municipal be recorded under St. 1913, c. 226, in force at Court of the City of Boston for the purpose the time of this transaction. See now St. of being examined. Neither the judgment 1921, c. 233, amending G. L. C. 255, § 1. The creditors nor their attorney appeared in case at bar is in this particular distinguish- court. An associate justice of the Municipal able from Worcester Morris Plan Co. v. Court found for the plaintiff in each case Mader, 236 Mass. 435, 128 N. E. 777.
and reported the cases to the Appellate Di. Order for judgment affirmed.
vision of that court. The cases are here on the appeal of the plaintiffs from an order for judgment for the defendant in each case.
On the agreed facts the plaintiffs contend BENWAY V. JARRATT et al. (two cases).
that the notice was inefficient, in that it de(Supreme Judicial Court of Massachusetts. scribed a single execution in favor of two Suffolk. Feb. 27, 1925.)
joint creditors, which did not exist, in place
of two executions in favor of the two disExecution im 451-Judgment debtor's notice of tinct creditors; and that the single execuintent to be examined as poor debtor held tion could not be produced at the place and not ineffective. Under G. L. c. 224, notice by judgment served by an officer if the court should re
time of the examination of the debtor or debtor of intent to be examined as poor debtor, given to attorney of record of judgment credi- fuse to administer the oath. tors, held not ineffective because it described a
We think the rule of law which governs single execution in favor of two joint creditors, this case is not that of Merriam v. Haskins, which did not exist, in place of two executions 7 Allen, 316, but is that of Dana v. Carr, in favor of distinct creditors.
124 Mass. 397; Hill v. Bartlett, 124 Mass.
399; Dwyer v. Winters, 126 Mass. 186; and Appeal from Municipal Court of Boston, Calnan v. Toomey, 129 Mass. 451. The atAppellate Division; Michael J. Murray, torney of record for both plaintiffs knew Judge.
when the notice was serred upon him that Two actions, one by Francis L. Benway, the the plaintiffs had no joint judgment or joint other by Frank Benway, against Homer C. execution against Allen, and he then knew Jarratt and others, tried together on agreed that the plaintiffs had separate judgments statement of facts. Findings for defendants and separate executions against Allen. In in each case were made by Associate Justice these circumstances it would be impossible of Municipal Court. From order of Appel- to believe the attorney could fail to underlate Division for judgment for defendant in stand what the notice meant. Dana v. Carr, each case, plaintiff's appeal. Judgment for supra. defendant.
Judgment for the defendant.
BOSS V. GREATER BOSTON MORTGAGE
CORPORATION. PIERCE, J. These actions were tried together on an agreed statement of facts, (Supreme Judicial Court of Massachusetts. which are substantially as follows: One Al
Suffolk. Feb. 27, 1925.) len was arrested on two executions in actions
Evidence Om 397 (4)-Written contract not va. of tort in behalf of Francis L. Benway and
ried by proof of prior misrepresentations of Frank Benway. Wilfrid J. Gaffney was at
defendant's agent. torney of record for the plaintiff in each ex
Where stock subscription expressly providecution. Allen, on the day of his arrest,ed that no agent had authority to make agreerecognized with the defendant Jarratt as
ment not contained therein, and that all statesurety in the sum of $200 on each execution, ments had been merged and set forth, plaintiff, that within thirty days he would appear be- not being illiterate, and having had opportunity fore some court for examination, as provid- to read it, was bound thereby, and it could not ed in G. L. c. 224. Later he applied to the be varied by proof of prior representations of Municipal Court of the City of Boston for defendant's agent. a notice to the said judgment creditors of his
Appeal from Superior Court, Suffolk Counintention to be examined as a poor debtor.
ty; Franklin T. Hammond, Judge. A notice was issued on the application, returnable within thirty days at said court. Bill by Frank M, Boss against the Greater This notice was addressed to Frank Benway Boston Mortgage Corporation to rescind and Francis L. Benway, judgment creditors; stock subscription contract alleged to have and was duly served on Gaffney, the attorney been induced by fraud and false pretenses of record of Frank and Francis L. Benway. of defendant's agent. Decree for plaintiff, On the return day the judgment debtor with and defendant appeals. Reversed and dethe defendant, his surety, appeared before I cree entered dismissing bill.
Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) A, W. Eldredge, of Boston, for appellant. 1 516; Boston Consolidated Gas Co. v. Fol. H. W. Ogden, of Boston, for appellee. som, 237 Mass. 565, 130 N. E. 197; O'Meara
v. Smyth, 243 Mass. 188, 190, 137 N. E. 294. BRALEY, J. The plaintiff and the de- The defendant therefore has not repudiated fendant entered into a contract in writing or refused performance of the contract, and June 16, 1922, entitled subscription for pre- the decree must be reversed and a decree ferred and common stock, whereby he sub- entered dismissing the bill. scribed for and agreed to take eighty full Ordered accordingly. paid nonassessable shares of the preferred, and sixteen shares of the defendant's common stock, for which he paid in cash $1,080, the balance to be paid in accordance with the
GREENBURG v. BOPP. terms of a promissory note "hereto attached and subject to the conditions specified be- (Supreme Judicial Court of Massachusetts. low.” The conditions in so far as material
Suffolk. Feb. 26, 1925.) read:
1. Landlord and tenant Em 148 (1)-Assign"It is expressly agreed that no salesman, rep
ment of lease held not to assign subsequent resentative or agent of the corporation has au
contract for payment of named sum in lieu thority to make any reference, representation
of income taxes. or agreement not contained in this contract, or Where lease was separate instrument from in anywise affect the validity of this contract or written agreement to pay lessor named sum form any part thereof but all statements have per annum during term of lease in lieu of been merged and set forth herein."
federal income taxes, assignment of lease and
moneys coming due thereunder held not to efThe bill alleges and the judge has found fect assignment of agreement. on evidence not reported that the agent of the defendant employed to sell its stock "in 2. Contracts Ow88-Sealed agreement held to order to induce the plaintiff to purchase
presume consideration supporting agreement. such stock offered in behalf of the defend
Where agreement to pay named sum durant, that if the plaintiff would buy stock in ing term of reviously executed lease in lieu The defendant corporation, the defendant presumed, and is sufficient to support agree
of income taxes was sealed consideration is would stand bound to him when he became
ment. a stockholder to buy or build a house for him by placing a first mortgage with a bank Appeal from Municipal Court of Boston, and carrying the rest of the money at sev- Appellate Division. en per cent.' By means of that promise the
Action of contract by Michael Greenburg agent induced the plaintiff to buy stock, against Katherine Bopp, executrix, to rethe plaintiff taking and paying for
cover on an instrument in writing, executed it supposing that he had a contract with the corporation to purchase or build a house by defendant's decedent. Report of finding for him as aforesaid. The agent had in fact
for plaintiff in municipal court was dismissed no authority from the defendant to make by the appellate division, and defendant apsuch an offer.
peals. Order dismissing report affirmed. When the plaintiff found a house which suited his requirements and re
Samuel L. Bailen and Roger B. Brooks, quested the corporation to buy it for him, both of Boston, for appellant. the president of the
corporation Wm. Hirsh and W. J. Kenney, both of Bosdenied that the agent
had author-ton, for appellee.
CARROLL, J. The plaintiff and the deThe plaintiff, relying on Rackemann v. fendant's testator entered into a written River Bank Improvement Co., 167 Mass. 1, agreement dated September 2, 1920. It in sub44 N. E. 990, 57 Am. St. Rep. 427, and Den- stance provided that, whereas the plaintiff nette v. Boston Securities Co., 206 Mass. 401, had executed a lease to Louis Bopp, the de92 N. E. 498, contends that the decree grant- fendant's testator, of certain real estate, ing relief, based on these findings, should be “and whereas said Louis Bopp had agreed to affirmed. But the plaintiff, who is not shown pay the sum of three hundred ($300) dollars to have been illiterate, or to have paid his per annum during the term of said lease in money without ample opportunity to read it, lieu of federal income taxes on the amount is bound by the contract, which constitutes reserved on the said lease, "the said Bopp the final agreement of the parties, and cannot agreed to pay the plaintiff $300 on September be varied by proof of prior representations 1st of each year until 1935, beginning Sep of the defendant's agent. Cannon v. Burrell, tember 1, 1921. It was stipulated that in 193 Mass. 534, 536, 79 N. E. 780; Colonial case the federal income taxes "on incomes to Development Co. v. Bragdon, 219 Mass. 170, the extent of seventy-five hundred ($7,500) 106 N. E. 633; Eastern Advertising Co. v. dollars are abolished the said payment shall E. L. Patch Co., 235 Mass. 580, 127 N. E. Jabate from such date.” It was also stipu
w For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
lated that if the plaintiff became "interested | fore presumed; and is a sufficient considerin an amusement enterprise to be formed by ation to support the agreement as binding. said Louis Bopp, the said three hundred Roth v. Adams, 185 Mass. 341, 343, 70 N. ($300) dollars payments to abate as of such E. 445; Graham v. Middleby, 185 Mass. 349, period." The action is in contract, to recov 355, 70 N. E. 416; Fletcher v. Fletcher, 191 er the sum of $300 due September 1, 1923. Mass. 211, 218, 77 N. E. 758.
The lease was dated September 1, 1920, the The defendant's requests for rulings were lessee agreeing to "assume and pay upon denied properly. We find no error in the these premises all tax assessments and bet- conduct of the trial. The order dismissing terment assessments however laid or levied the report is affirmed. during the entire term of this lease." In So ordered. 1922 the plaintiff assigned to Isadore Greenburg “all and whatever sum or sums of money now due and coming due to me from Louis Bopp of said Revere under the terms of a certain lease between us dated September CHESAPEAKE & O. R. CO. OF INDIANA V. 1, 1920." There was evidence that the plain
HULL. (No. 11922.) tiff did not become interested with Bopp in (Appellate Court of Indiana, Division No. 2. any amusement enterprise. In the municipal
April 7, 1925.) court of the city of Boston there was a finding for the plaintiff. In the appellate divi- 1. Master and servant Ew356–Contributory sion the report was dismissed, and the de
negligence and assumption of risk no de
fense under Compensation Act. sendant appealed.  The lessee was not, under the terms of
Where employer has rejected Compensation the lease, obliged to pay the sum of $300 Act, contributory negligence and assumption of during the term “in lieu of federal income ordinary risks of work are not a defense in
an action by an employee for injuries. taxes, on the amount reserved on the said lease." Codman v. American Piano Co., 229 2. Master and servant om 279(4)-Evidence Mass. 287, 118 N. E. 344; the written agree
held to sustain finding injury due to negliment however has not en reformed. We
gence of fellow servant. are bound by the record and cannot in this
Evidence held to sustain a finding of jury action, correct or set aside the written agree
that injury to railroad workman repairing ment by which Bopp contracted to pay the machine was due to negligence of his assist
ant. agreed sum, although the lease did not require him to pay the sum of $300 each year
Appeal from Circuit Court, Howard Coun"in lieu of federal income taxes.”. We are ty; John Marshall, Judge. not called upon to decide in this action,
Action by Milton Hull against the Chesawhether the contract of September 2d could be reformed in a suit in equity.
peake & Ohio Railroad Company of Indiana. The date of the lease was September 1, Judgment for plaintiff, and defendant ap1920; the agreement on which the action was
peals. Affirmed. brought was dated September 2, 1920. The Wolf & Barnes, of Kokomo, and Albert H. two instruments are separate and distinct. Cole, of Peru, Ind., for appellant. The assignment of the lease did not operate Hurd J. Hurst, of Peru, Ind., Don P. as an assignment of the agreement of Sep- Strode, of Kokomo, and Long & Yarlott, of tember 2. The assignment refers only to the Logansport, for appellee. lease, and the “money now due and coming due to me from Louis Bapp * * under MCMAHAN, J. Appellee recovered a judg. the terms of a certain lease between us dated ment against appellant for personal injuSeptember 1, 1920." The assignment did not ries. Appellant contends the court erred in include the contract in suit. The plaintiff's overruling its motion for a new trial. The action does not rest on the lease, but on the specifications in the motion are: That the contract of September 2. The defendant's verdict is not sustained by sufficient evicontention therefore that the assignment of dence; that it is contrary to law; that the the lease assigned the contract, cannot be court erred in refusing to direct a verdict sustained.
for appellant, and in giving certain instrucTorrey v. Wallis, 3 Cush. 442; Hunt v. tions. The complaint is in four paragraphs, Thompson, 2 Allen, 341, and Martin v. Mar- it being alleged in each that appellant had tin, 146 Mass. 517, 16 N. E. 413, are not ap- rejected the Workmen's Compensation Act plicable. The question decided in James v. (Acts 1915, c. 106.) The first paragraph alNewton, 142 Mass. 366, 368, 8 N. E. 122, 56 eged that appellant was negligent in using Am. Rep. 692, does not arise in the case at a defective bending machine. The second bar.
paragraph alleged negligence in permitting  The contract of September 2 was a pin to be removed from the machine and in sealed agreement; a consideration is there. I directing appellee to repair the machine in
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes