(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. [4] The defendant Simpson, still appearing specially, filed a plea to the jurisdiction, subsequently amended by leave of court, setting out (1) that he was not the holder of any shares of stock in the defendant corporation; and (2) that the note referred to in the plaintiff's bill was at all times in the possession of the defendant Simpson in the state of Maine. The trial court found both these facts to be as averred in the plea, and also that the note was made and payable in Boston. The makers of the note cannot be held as trustees under equitable trustee process upon these facts, when the note is not within the jurisdiction. That point is settled by Sanger v. Bancroft, 12 Gray, 365. [5] Since Simpson had no interest in the stock of the defendant corporation, no jurisdiction over him was acquired by service on the corporation. Dondis v. Borden, 230 Mass. 73, 119 N. E. 184; Warr v. Collector of Taxes, 234 Mass. 279, 125 N. E. 557. [6] No property of the defendant Simpson was attached in this jurisdiction. Therefore, since he was a nonresident and did not appear generally, he could not be held to answer to the suit in our courts. Cheshire National Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Reynolds v. Mo. Kan. & Texas Ry. Co., 224 Mass. 379, 388, 113 N. E. 413. Decree dismissing bill affirmed, with costs. LYNN MORRIS PLAN CO. v. GORDON. (Supreme Judicial Court of Massachusetts. Essex, Feb. 27, 1925.) 1. Sales 475-Buyer of automobile on resale by original seller held to have no title as against transferee of note and conditional sale contract. Where seller of automobile, retaining title until purchase price was paid, transferred note and all rights under conditional sale agreement to plaintiff, and buyer returned automobile to seller, its resale to defendant vested no title as against transferee of note and agreement, though transfer was not recorded. 2. Sales 475-Transfer of automobile by seller to plaintiff not required to be recorded. Where seller of automobile retained title until price was paid, transfer of purchase price note and rights under retention title agreement by absolute sale was not required to be recorded, under St. 1915, c. 226, then in force. A. Glovsky, of Salem, for appellant. On RUGG, C. J. [1] This is an action of tort for the conversion of an automobile. April 1, 1920, the owner of the automobile entered into a written agreement with one Therrien for its conditional sale. By the terms of that agreement the title remained in the seller and did not pass to Therrien until the entire purchase price had been paid. At the same time Therrien paid $800 in cash and executed and delivered to the seller a promissory note to the order of the seller, payable in monthly installments, for $1,470, the balance due on the purchase price. Thereupon Therrien was entitled to and took possession of the automobile. Shortly after, the seller, for the sum of $1,352.40, transferred the note by indorsement, waiving de mand and notice, and all rights under the the agreement was not recorded. agreement to the plaintiff. This transfer of Subsequently, Therrien returned the automobile to the seller, who sold it to the defendant. The question is whether the plaintiff, default having been made in the payments due on the note and under the agreement, can maintain this action. When and after the seller transferred his agreement for sale and indorsed the note 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 creditor or one standing in the shoes of a creditor of the seller, the plaintiff would have been unable to maintain its rights without giving notice to Therrien, so that he would become bailee of the automobile for the plaintiff instead of the seller. Mann v. Huston, 1 Gray, 250; Hallgarten v. Oldham, 135 Mass. 1, 9, 10, 46 Am. Rep. 433; Clark v. Williams, 190 Mass. 219, 76 N. E. 723; Duffy v. Charak, 236 U. S. 97, 35 S. Ct. 264, 59 L. Ed. 483. But that is not the situation. The seller retained no title or interest. Therrien had no title or interest superior to that of the plaintiff. Whatever rights he had were subject to the plaintiff's title. His wrongful conduct in conjunction with the wrongful conduct of the original seller cannot defeat the title of the plaintiff. The seller stood no better than a stranger to the transaction. The defendant acquired no greater title than his vendor was able to convey. He was in no position to dispute the title of the plaintiff. Royle v. Worcester Buick Co., 243 Appeal from Superior Court, Essex Coun- Mass. 143, 137 N. E. 531. ty; Hugo A. Dubuque, Judge. Action of tort by the Lynn Morris Plan Company against Louis N. Gordon for conversion of automobile. Finding for plain [2] The transfer of the automobile by the seller to the plaintiff was not by way of security or mortgage. It was an absolute sale. 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, be recorded under St. 1915, c. 226, in force at the time of this transaction. See now St. 1921, c. 233, amending G. L. c. 255, § 1. The case at bar is in this particular distinguishable from Worcester Morris Plan Co. v. Mader, 236 Mass. 435, 128 N. E. 777. Order for judgment affirmed. BENWAY v. JARRATT et al. (two cases). (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.) Execution 451-Judgment debtor's notice of intent to be examined as poor debtor held not ineffective. Under G. L. c. 224, notice by judgment debtor of intent to be examined as poor debtor, given to attorney of record of judgment creditors, held not ineffective because it described a single execution in favor of two joint creditors, which did not exist, in place of two executions in favor of distinct creditors. Appeal from Municipal Court of Boston, Appellate Division; Michael J. Murray, Judge. Two actions, one by Francis L. Benway, the other by Frank Benway, against Homer C. Jarratt and others, tried together on agreed statement of facts. Findings for defendants in each case were made by Associate Justice of Municipal Court. From order of Appellate Division for judgment for defendant in each case, plaintiffs appeal. Judgment for defendant. Wilfrid J. Gaffney, of Boston, for appellants. M. W. Bullock, of Boston, for appellees. PIERCE, J. These actions were tried together on an agreed statement of facts, which are substantially as follows: One Allen was arrested on two executions in actions the poor debtor session of the Municipal Court of the City of Boston for the purpose of being examined. Neither the judgment creditors nor their attorney appeared in court. An associate justice of the Municipal Court found for the plaintiff in each case and reported the cases to the Appellate Division 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 that the notice was inefficient, in that it described a single execution in favor of two joint creditors, which did not exist, in place of two executions in favor of the two distinct creditors; and that the single execution could not be produced at the place and time of the examination of the debtor or served by an officer if the court should refuse to administer the oath. We think the rule of law which governs this case is not that of Merriam v. Haskins, 7 Allen, 346, but is that of Dana v. Carr, 124 Mass. 397; Hill v. Bartlett, 124 Mass. 399; Dwyer v. Winters, 126 Mass. 186; and Calnan v. Toomey, 129 Mass. 451. The attorney of record for both plaintiffs knew when the notice was served upon him that the plaintiffs had no joint judgment or joint execution against Allen, and he then knew that the plaintiffs had separate judgments and separate executions against Allen. In these circumstances it would be impossible to believe the attorney could fail to understand what the notice meant. Dana v. Carr, supra. Judgment for the defendant. BOSS v. GREATER BOSTON MORTGAGE (Supreme Judicial Court of Massachusetts. ried by proof of prior misrepresentations of defendant's agent. Where stock subscription expressly provided that no agent had authority to make agreement not contained therein, and that all statements had been merged and set forth, plaintiff, not being illiterate, and having had opportunity to read it, was bound thereby, and it could not be varied by proof of prior representations of defendant's agent. of tort in behalf of Francis L. Benway and Evidence 397(4)-Written contract not vaFrank Benway. Wilfrid J. Gaffney was attorney of record for the plaintiff in each execution. Allen, on the day of his arrest, recognized with the defendant Jarratt as surety in the sum of $200 on each execution, that within thirty days he would appear before some court for examination, as provided in G. L. c. 224. Later he applied to the Municipal Court of the City of Boston for a notice to the said judgment creditors of his intention to be examined as a poor debtor. A notice was issued on the application, returnable within thirty days at said court. This notice was addressed to Frank Benway and Francis L. Benway, judgment creditors; and was duly served on Gaffney, the attorney of record of Frank and Francis L. Benway. On the return day the judgment debtor with the defendant, his surety, appeared before cree entered dismissing bill. ty; Appeal from Superior Court, Suffolk Coun- Bill by Frank M. Boss against the Greater Boston Mortgage Corporation to rescind stock subscription contract alleged to have been induced by fraud and false pretenses of defendant's agent. Decree for plaintiff, and defendant appeals. Reversed and de (146 N.E.) A. W. Eldredge, of Boston, for appellant. [516; Boston Consolidated Gas Co. v. FolH. W. Ogden, of Boston, for appellee. BRALEY, J. The plaintiff and the defendant entered into a contract in writing June 16, 1922, entitled subscription for preferred and common stock, whereby he subscribed for and agreed to take eighty full 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 terms of a promissory note "hereto attached and subject to the conditions specified below." The conditions in so far as material read: "It is expressly agreed that no salesman, representative or agent of the corporation has authority to make any reference, representation or agreement not contained in this contract, or in anywise affect the validity of this contract or form any part thereof but all statements have been merged and set forth herein." The bill alleges and the judge has found on evidence not reported that the agent of the defendant employed to sell its stock "in order to induce the plaintiff to purchase such stock offered in behalf of the defend ant, that if the plaintiff would buy stock in the defendant corporation, the defendant would stand bound to him when he became corporation had author The plaintiff, relying on Rackemann v. River Bank Improvement Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. Rep. 427, and Dennette v. Boston Securities Co., 206 Mass. 401, 92 N. E. 498, contends that the decree granting relief, based on these findings, should be affirmed. But the plaintiff, who is not shown to have been illiterate, or to have paid his money without ample opportunity to read it, is bound by the contract, which constitutes the final agreement of the parties, and cannot be varied by proof of prior representations of the defendant's agent. Cannon v. Burrell, 193 Mass. 534, 536, 79 N. E. 780; Colonial Development Co. v. Bragdon, 219 Mass. 170, 106 N. E. 633; Eastern Advertising Co. v. E. L. Patch Co., 235 Mass. 580, 127 N. E. som, 237 Mass. 565, 130 N. E. 197; O'Meara GREENBURG v. BOPP. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.) 1. Landlord and tenant 148(1)—Assignment of lease held not to assign subsequent contract for payment of named sum in lieu of income taxes. Where lease was separate instrument from written agreement to pay lessor named sum per annum during term of lease in lieu of federal income taxes, assignment of lease and moneys coming due thereunder held not to effect assignment of agreement. 2. Contracts 88-Sealed agreement held to presume consideration supporting agreement. Where agreement to pay named sum dur ing term of previously executed lease in lieu presumed, and is sufficient to support agree of income taxes was sealed consideration is ment. Appeal from Municipal Court of Boston, Appellate Division. against Katherine Bopp, executrix, to reAction of contract by Michael Greenburg cover on an instrument in writing, executed by defendant's decedent. Report of finding for plaintiff in municipal court was dismissed by the appellate division, and defendant appeals. Order dismissing report affirmed. Samuel L. Bailen and Roger B. Brooks, both of Boston, for appellant. Wm. Hirsh and W. J. Kenney, both of Boston, for appellee. CARROLL, J. The plaintiff and the defendant's testator entered into a written agreement dated September 2, 1920. It in substance provided that, whereas the plaintiff had executed a lease to Louis Bopp, the defendant's testator, of certain real estate, "and whereas said Louis Bopp had agreed to pay the sum of three hundred ($300) dollars per annum during the term of said lease in lieu of federal income taxes on the amount reserved on the said lease, "the said Bopp agreed to pay the plaintiff $300 on September 1st of each year until 1935, beginning September 1, 1921. It was stipulated that in case the federal income taxes "on incomes to the extent of seventy-five hundred ($7,500) dollars are abolished the said payment shall abate from such date." It was also stipu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lated that if the plaintiff became "interested | fore presumed; and is a sufficient consider in an amusement enterprise to be formed by said Louis Bopp, the said three hundred ($300) dollars payments to abate as of such period." The action is in contract, to recover the sum of $300 due September 1, 1923. In ation to support the agreement as binding. Roth v. Adams, 185 Mass. 341, 343, 70 N. E. 445; Graham v. Middleby, 185 Mass. 349, 355, 70 N. E. 416; Fletcher v. Fletcher, 191 Mass. 211, 218, 77 N. E. 758. The defendant's requests for rulings were denied properly. We find no error in the conduct of the trial. The order dismissing the report is affirmed. So ordered. The lease was dated September 1, 1920, the lessee agreeing to "assume and pay upon these premises àll tax assessments and betterment assessments however laid or levied during the entire term of this lease." 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 1, 1920." There was evidence that the plaintiff did not become interested with Bopp in any amusement enterprise. In the municipal court of the city of Boston there was a finding for the plaintiff. In the appellate divi-1. sion the report was dismissed, and the defendant appealed. [1] The lessee was not, under the terms of the lease, obliged to pay the sum of $300 during the term "in lieu of federal income taxes, on the amount reserved on the said lease." Codman v. American Piano Co., 229 Mass. 285, 118 N. E. 344; the written agreement however has not been reformed. are bound by the record and cannot in this action, correct or set aside the written agree We ment by which Bopp contracted to pay the agreed sum, although the lease did not require him to pay the sum of $300 each year "in lieu of federal income taxes." We are not called upon to decide in this action, whether the contract of September 2d could be reformed in a suit in equity. The date of the lease was September 1, 1920; the agreement on which the action was brought was dated September 2, 1920. The two instruments are separate and distinct. The assignment of the lease did not operate as an assignment of the agreement of September 2. The assignment refers only to the lease, and the "money now due and coming due to me from Louis Bapp ** under the terms of a certain lease between us dated September 1, 1920." The assignment did not include the contract in suit. The plaintiff's action does not rest on the lease, but on the contract of September 2. The defendant's contention therefore that the assignment of the lease assigned the contract, cannot be sustained. CHESAPEAKE & O. R. CO. OF INDIANA v. (Appellate Court of Indiana, Division No. 2. Master and servant 356-Contributory negligence and assumption of risk no defense under Compensation Act. Where employer has rejected Compensation Act, contributory negligence and assumption of ordinary risks of work are not a defense in an action by an employee for injuries. 2. Master and servant 279 (4)-Evidence held to sustain finding injury due to negligence of fellow servant. Evidence held to sustain a finding of jury that injury to railroad workman repairing machine was due to negligence of his assist ant. Appeal from Circuit Court, Howard County; John Marshall, Judge. Action by Milton Hull against the Chesapeake & Ohio Railroad Company of Indiana. Judgment for plaintiff, and defendant appeals. Affirmed. Wolf & Barnes, of Kokomo, and Albert H. Cole, of Peru, Ind., for appellant. Hurd J. Hurst, of Peru, Ind., Don P. Strode, of Kokomo, and Long & Yarlott, of Logansport, for appellee. MCMAHAN, J. Appellee recovered a judg ment against appellant for personal injuries. Appellant contends the court erred in overruling its motion for a new trial. The specifications in the motion are: That the verdict is not sustained by sufficient evidence; that it is contrary to law; that the court erred in refusing to direct a verdict 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, 56leged 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 [2] The contract of September 2 was a a pin to be removed from the machine and in sealed agreement; a consideration is there- directing appellee to repair the machine in (146 N.E.) other respects when he did not know the pin | been installed, and that was at the end of had been removed but believed it was in the cylinder farthest from where appellee place. The third, in addition to the facts al- was standing. leged in the second, alleged that one of ap pellant's servants who assisted appellee in doing the work was negligent in admitting a large amount of air in the air machine on which appellee was working. The fourth simply alleged negligence on the part of appellee's assistant, the same as was alleged in the third paragraph. There was also sufficient evidence to justify the jury in finding that appellee did not know the iron pin was not in its place or had never been there; that under the circumstances appellee was not required to inspect that part of the machine and observe the absence of the pin; that he did not know or have any reason to believe that the pin was out; and that the injury was caused by the negligence of the man turning too much air in the cylinder. [1, 2] Appellant having rejected the Com assumption of the ordinary risks of the work was not a defense in this case. The evidence was, to say the least, sufficient to sustain the verdict under the allegations of the third and fourth paragraphs of the complaint. The verdict was therefore sustained by the evidence, and was not contrary to law. There was no error in refusing to instruct the jury to return a verdict for appellant. Instructions Nos. 2, 3, and 6 of which complaint is made related to contributory negligence and assumption of risk on the part of appellee and were correct in form and properly given. No. 11 related to knowledge of the danger on the part of appellant, while Nos. 15 and 16 related to the duty of appellant to warn appellee of danger. We have carefully examined these instructions. They were applicable to the evidence, and were properly given. Judgment affirmed. The evidence is sufficient to establish the following facts: Appellee was informed that a certain machine operated by compressed air, and used for bending iron, was leaking air, and he was directed to repair this ma-pensation Act, contributory negligence and chine. The main part of this machine consisted of an iron cylinder about 16 inches in diameter and about 5 feet long in which there was a piston head with leathers at each end. Compressed air could be admitted at each end of the cylinder so as to move the piston either forward or backward. A piston rod extended through each end of the cylinder and connected with a piston head At each end of the cylinder and resting on an iron table was an iron crosshead. A piston rod connected each of these crossheads to the piston head. The crossheads were supposed to be fastened to the piston with an iron pin about 4 of an inch in diameter and about 6 inches long. The leather cups were held in place by followup plates, and prevented the air from escaping and passing around the piston heads. Appellee was given to understand that these leathers were not properly working but were letting air escape, and he was instructed to remedy this defect. He took a helper with him, and after moving the piston head back and forth a few times with his hands he removed the head from one end of the cylinder, and was trying to get the piston head out of the cylinder, when the leather stuck and held the piston head so tightly that it could not be removed. He then directed the man who was helping him to let in the compressed air slowly so as to push the piston toward Electrical contractor employed by building the end of the cylinder from which the head owner to do all electrical work in buildings had been removed. Appellee was working owned by latter held to have assumed risk of near the end of the cylinder when the pis- falling into open unguarded boiler pit which ton head was, by reason of the great force could have been discovered by reasonable inof the air admitted, violently forced out inspection, and employer owed him no duty of warning him. the direction of appellee, and struck and seriously injured him. The iron pin which was supposed to be in place and hold the crosshead in place at the other end of the cylinder was out, and the force of the compressed air was sufficiently powerful force and disconnect the crosshead from the piston rod and thus allowed the piston head to be forced out at the end of the cylinder and to strike and injure appellee. The air cylinder was so constructed that a bending machine could be attached to each end, although but one bending machine had ever to PILLING v. HALL. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.) Master and servant 219(1)-Risk of falling into unguarded boiler pit held assumed. Report from Superior Court, Suffolk County; Frederick Lawton, Judge. Action of tort by Alfred J. Pilling against Fred L. Hall to recover for personal injuries sustained on defendant's premises at latter's invitation. Verdict was directed for defendJudgment for deant, and case reported. fendant. J. W. Lowrance and J. L. Hurley, both of Boston, for plaintiff. L. C. Doyle, of Boston, for defendant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-44 |