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(146 N.E.)

tract between his customers and himself, acknowledging receipt of the deposit of $500 toward the purchase of the property and stating the terms of purchase to be, price $54,000, of which, $44,000 was on a first mortgage to run for five years, $4,500 was to be paid in cash on the day of passing papers, and the balance of $5,000 was to remain on a second mortgage at 6 per cent., interest payable quarterly, to be paid within five years. Three copies of the agreement were made, of which one was given to the purchaser, one to the defendant and one kept by the plaintiff. When the agreement was shown to the defendant on the day following its execution, he made no objection to it and took it away with him. At the same time the plaintiff said that his customer "would be ready to complete the deal and pass the papers" and would want to engage a lawyer to look up the title. The defendant said:

"It is all right. We will get together and give you the old deed to look up the title."

patrick v. Gilson, 176 Mass. 477, 57 N. E. 1000, and cases there cited." Taylor v Schofield, 191 Mass. 1, 4, 77 N. E. 652; Cohen v. Ames, 205 Mass. 186, 188, 91 N. E. 212; Willard v. Wright, 203 Mass. 406, 409, 89 N. E. 559; Walker v. Russell, 240 Mass. 386, 390, 134 N. E. 388, and cases there collected.

[5] There was evidence sufficient to warrant a finding that the terms of the offer procured by the plaintiff were approved by the defendant and that he knew the name of the customer from the copy of the agreement handed him, and not only made no objection to him but inferentially accepted him.

If these were found to be the facts, it was not necessary for the plaintiff to produce a customer able, ready and willing to pay the price in cash, as he would have been required to do if no other terms had been mentioned. Pearlstein v. Novitch, 239 Mass. 228, 231, 131 N. E. 853.

[6] The plaintiff was not obliged to show in these circumstances that he had made a contract binding on his customer. Goodnough v. Kinney, 205 Mass. 203, 91 N. E. 295. [7] There was also evidence tending to plaintiff was ready, able and willing to buy the property on the terms stated in the

Before this agreement was signed or the deposit taken, the plaintiff gave to the defendant its full details as proposed, and ask-show that the customer produced by the ed if it was all right to go ahead, and the defendant replied: "It is all right; go ahead." There was nothing in the agreement as to the person who was to take the second mortgage, because the defendant "said he would take care of the financial part himself." There was some delay in getting a deed from the defendant by which the title might be searched and after several days the plaintiff

said to the defendant:

"If this thing isn't going through, please tell me, so that I can give my man his money back."

To this the defendant replied:

"No; he has got to live up to his agreement; you shouldn't give him the money back. I will bring you that deed. I will get everything fixed up now in a very short time."

The defendant testified that:

"If the plaintiff had secured a customer who met the owner's terms, he was entitled to a commission whether or not the owner later refused to sell."

[3] There was testimony tending to show that a quite different contract was made between the plaintiff and the defendant; that the defendant said he was merely acting as agent for the owner, who never agreed to the terms offered. The weight of the evidence is of no consequence, now. That was entirely for the jury.

[4] If the contract was found to be that the plaintiff was to have his commission if he sold the property, "he was not obliged to show that an actual transfer had been made, but that his duty was done when be produced a customer who was able, ready and willing to pay the defendant's price, and whom the defendant had accepted. Fitz146 N.E.-45

agreement. The customer so testified. That was enough to raise a question of fact. Walker v. Russell, 240 Mass. 386, 391, 134 N.

E. 388.

[8] If the plaintiff knew that the defendant was acting throughout as agent for some one else, probably he could not be held as principal for the commission upon the evidence here disclosed. But the plaintiff testified that the defendant asserted that he owned the property. Whether the plaintiff treated with him on that footing was a question of fact.

"If the broker is ignorant what the defendant's relation to the land is, and is asked to find a purchaser for the land, and does find one, who is willing to buy on terms satisfactory to the defendant, his commission is earned, even if the defendant does not own the land and afterwards is unsuccessful in buying it, or if for any other reason he cannot avail himself of the offer procured by the broker." Monk v. Parker, 180 Mass. 246, 248, 63 N. E. 793, 794; O'Neil v. Reardon, 238 Mass. 120, 123, 130 N. E. 89; Zilli v. Rome, 240 Mass. 368, 371, 134 N. E. 622.

[9, 10] The reference in the written agreement between the plaintiff and his customer that if the plaintiff "as agent is not satisfied with all details as arranged with Mr. Cody, representing the bank," the deposit would be returned without expense to the customer, was not an admission binding on the plaintiff that he knew the defendant was agent. It was only evidentiary. That statement, read in conjunction with the plaintiff's testimony that the Federal Trust Company (of which the defendant had said

C. F. Choate, 3rd, of Boston, for plaintiff.
E. C. Park, of Boston, for defendant.

PIERCE, J. This is an action brought under St. 1909, c. 490, § 45, as amended by St. 1912, c. 390, to recover, as purchaser, the amount paid by the plaintiff to the defendant for 29 tax title deeds, and interest.

he was a director according to some of the tle deeds. Judgment for defendant, and evidence) held the first mortgage on the plaintiff excepts. Exceptions overruled. property, "that they were the owners," and that the mortgage was all right for five years, may have been found to refer to the terms of that first mortgage and the time it might remain. This is not a case where it can be said as matter of law that the plaintiff was bound to know that the defendant was agent and not principal in view of all his testimony. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 406, 112 N. E. 1025. The granting of the motion for the entry of verdict in favor of the defendant in accordance with leave reserved, was error. The case was one for the jury. It is stated in the exceptions that the case was submitted to the jury under appropriate instructions and that the verdict was returned for the plaintiff. That verdict on this record ought to stand. This point is fully covered by Kaminski v. Fournier, 235 Mass. 51, 55, 126

N. E. 279.

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The plaintiff, in September, October and November, 1914, at a tax sale for the collection of unpaid taxes assessed on the land of John and Mary A. O'Brien, purchased of the defendant the several parcels of land described in paragraphs numbered "1” to “10” inclusive of count 1 of the declaration, and received 29 tax title deeds thereof, each dated October 15, 1914. They were acknowledged by the tax collector on October 17, 1914, and were recorded in the registry of deeds November 5, 1914. It was agreed by the de

fendant that the tax titles were declared invalid and the titles which stood in the name

of the purchaser, Harry C. Byrne, were de

clared to be void by reason of errors, omissions, and informalities in the assessments and sales, by a decision of the land court rendered November 19, 1917.

It appeared by admissions of the defendant

BYRNE V. INHABITANTS OF TOWN OF and by uncontradicted evidence that the de

SHARON.

(Supreme Judicial Court of Massachusetts.

Suffolk. Feb. 27, 1925.)

1. Taxation 819-Right to relief of grantee in tax deed is dependent on full performance of acts required by statute.

St. 1909, c. 490, § 45, as amended by Stats. 1912, c. 390, is a declaration that right to relief of grantee in tax deed is dependent on full performance of all acts required to be done by him, and that execution of terms of statute is condition precedent to acquisition of right.

2. Taxation ~821 (4)—Failure of grantee of tax deed within six months after date of the deed to offer by writing to surrender or discharge deeds, precluded recovery of money paid therefor.

Where offer by purchaser to discharge tax deeds and statements of reason for invalidity of deeds was not given to tax collector or filed within six months from date of deed, condition of right to recover under St. 1909, c. 490, § 45, as amended by St. 1912, c. 390, was not performed by him; "date of the deed" fixing exact immovable datum from which beginning and end of specified time could be indisputably ascertained.

Exceptions from Superior Court, Suffolk County; P. M. Keating, Judge.

Action of contract, under St. 1909, c. 490, § 45, as amended by St. 1912, c. 390, by Harry C. Byrne against the Inhabitants of the Town of Sharon to recover money paid for tax ti

fendant, on April 16 or 17, 1915, received a notice purporting to be signed by Harry C. Byrne, dated "15 April, 1915" to the effect that the tax deeds dated October 15, 1914, were invalid by reason of errors, omissions

and informalities in the assessments and
The notice

sales, for 9 specified reasons.
contained the further declaration, in sub-
stance, that Harry C. Byrne offered to sur-
render and discharge the said 29 deeds, or to
assign and transfer to the town of Sharon
all his right, title, and interest in and to
the described premises as the collector of
taxes for the town of Sharon should elect.
It was conceded by the defendant that the
town of Sharon had refused to return the
purchase money or pay the plaintiff any part

thereof.

A judge of the superior court heard the case without a jury, and at the close of the evidence refused to rule, as requested by the plaintiff, that'

"1. Upon all the law and the evidence the plaintiff is entitled to recover the amount of his declaration.

"2. The notice sent by the plaintiff upon April 15, 1915, was due and sufficient notice under chapter 390 of the Acts of 1912.

"3. The date 'April 15, 1915' on the notice sent by the plaintiff to the defendant is evi

dence that the plaintiff offered by writing given to the collector within six months after the date of the deed to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest in the premises,

(146 N.E.)

"4. Chapter 260, § 2, of the General Laws (statute of limitations) does not apply to the present action of the plaintiff against the defendant.

and if such evidence is unrebutted is conclu-, error, omission or informality in any of the sive that the notice was given seasonably un- proceedings for assessment and sale, had no der the statute. remedy against the city or town. Lynde v. Melrose, 10 Allen, 49; Williams v. Dedham, 207 Mass. 412, 93 N. E. 96; St. 1862, c. 183, gave to such a purchaser a right to receive "5. The statute of limitations did not begin back the money paid upon the surrender and to run until it had appeared that by reason discharge of his deed, without limitation as of error, omission or informality in the as- to time. St. 1878, c. 266, and all subsequent signment or sale the plaintiff had no claim up-related statutes down to St. 1912, c. 390, have on the property sold.

"6. Under chapter 390, Acts of 1912, the statute of limitations does not begin to run until the purchaser has surrendered and discharged his deed or assigned and transferred to the town all his right, title and interest in the premises.

"7. Under chapter 390, Acts of 1912, the statute of limitations does not begin to run until demand for payment has been made upon the city or town and such payment has been refused by the city or town.

"8. If the notice under the statute is made and dated within the six months required by the statute, such a notice is sufficient as far as time is concerned."

continued such right, but subject to a proviso or condition that the purchaser so circumstanced should within two years from the "date of the deed" offer in writing to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest therein as the collector shall elect. These statutes provide that the offer shall "contain a specific statement of the reason why the holder has no claim on the land sold, with the evidence upon which he relies"; and the further provision that "no city or town and no treasurer or collector thereof, shall pay or be liable for any amount due under the provisions of this section un

The judge ruled, as requested by the de- less such statement is filed." fendant, that

[1, 2] The statute is a plain declaration

"3. Chapter 390 of the Acts of 1912 fur-that a right to have the relief is dependent nished the exclusive remedy for the recovery of money paid to a town for tax deeds which proved to be invalid.

"4. The burden is on the plaintiff to show compliance with the requirements of chapter 390 of the Acts of 1912.

"5. No action can lie against the town upon an agreement express or implied (except as implied under the terms of chapter 390 of the Acts of 1912) that if the tax deeds should be proved to be invalid after a sale, the money paid for them should be returned by the town to the purchaser.

"6. Upon all the evidence the plaintiff did not, within six months after the date of the deed, offer by writing given to the collector to surrender and discharge his deeds or to assign and transfer to the town all his right, title and interest in the premises.

"7. The offer in writing is not given to the collector until it reaches him.

"8. Upon all the evidence the finding should be for the defendants.

"9. The alleged notice does not comply with the requirements of c. 390 of the Acts of

1912."

The plaintiff duly excepted to the court's refusal to find for the plaintiff, to its refusal to grant his rulings numbered "1" through "8," and to its allowance of the defendant's requests for rulings numbered “3” through "9."

Prior to the enactment of St. 1862, c. 183, 6, a purchaser of a tax title which subsequently proved invalid, by reason of any

upon the full performance of all acts requir-
ed by the statute to be done by the purchas-
er; and that the execution of the terms of
the statute is a condition precedent to the ac-
quisition of the right. Williams v. Baker,
209 Mass. 92, 95 N. E. 78. St. 1912, c. 390,
gives further emphasis to the importance of
the limitation of time within which the of-
fer and the statement of reasons may be
given and filed, by reducing the time for
such action from two years to six months
from the date of the deed. The words "date
of the deed" as used in the statute are in-
tended to fix an exact immovable datum from
which the beginning and the end of a speci-
fied time may be indisputably ascertained by
all interested persons; and are not intended
to mark a point in time which becomes cer-
tain only through reference to a time when the
deed became effective by a delivery with in-
tent to pass title. The judge was warranted
in finding as he presumably did on the un-
disputed evidence of the collector of taxes,
that the offer and the statement of reason
therein was not given to the collector or
filed within six months from the date of the
deed. It follows that the condition of the
right was not performed by the purchaser;
that the finding for the defendant was right
and was required by law to be made. It
further follows that the exceptions of the
plaintiff must be overruled.
Exceptions overruled.

RUGG, C. J. The plaintiff seeks by this

DAVIS v. CALDERWOOD et al., Board of suit in equity to enjoin the defendants, who Registration in Medicine.

(Supreme Judicial Court of Massachusetts.

Hampden. Feb. 27, 1925.)

constitute the Board of Registration in Medicine (G. L. c. 13, § 10), from proceeding with a hearing against him pursuant to a notice issued for him to show cause why his reg

1. Physicians and surgeons 2-Statute regu- istration as a practitioner of medicine in this lating practice of medicine held valid.

G. L. c. 112, regulating practice of medicine, and conferring powers of registration of physicians and of revocation of registration for cause on board of registration, held valid. 2. Constitutional law 318-Statute regulating practice of medicine constitutional.

As in proceeding, to revoke registration of practitioner of medicine, G. L. c. 13, § 10, requires hearing before public board, at which practitioner may be represented by counsel and call witnesses, and provides for further hearing, revision, and reversal, if justice demands such action, every constitutional right is pro

tected.

3. Physicians and surgeons 11(3)-Notice to show cause why registration should not be canceled not construed with technical strictness.

Notice issued to registered physician by board of registration in medicine, to show cause why registration should not be revoked, is not to be construed with technical strictness; it being assumed that further specifications would be given on proper request.

4. Evidence 83 (1)—Presumption made in favor of regularity and fairness of procedure and proposed action of board of registration in medicine.

Every presumption is made in favor of regularity and fairness of methods of procedure and proposed action of board of registration in medicine, in hearing to revoke registration of practitioner.

5. Physicians and surgeons 11(2)-Assisting unregistered person ground for revocation of registration.

Assisting unregistered person in practicing medicine is sufficient ground for revocation or cancellation of registration.

6. Constitutional law 38-Incidental means for enforcing valid statute violate no constitutional rights.

Incidental means for enforcing and giving effect to valid statute violate no constitutional rights.

commonwealth should not be revoked. The case is reported on the bill and an order for an interlocutory decree, which it is agreed contains all essential facts.

It is assumed that the plaintiff would suffer irreparable injury in his property and personal rights if the defendants should proceed to revoke his registration, and that therefore in this suit he may question the constitutionality of the statute under which they are proceeding. Moneyweight Scale Co. v. McBride, 199 Mass. 503, 506, 85 N. E. 870; Shuman v. Gilbert, 229 Mass. 225, 228, 118

N. E. 254, L. R. A. 1918C, 135, Ann. Cas. 1918E, 793; Warr v. Collector of Taxes, 234 Mass. 279, 283, 125 N. E. 557;, Terrace v. Thompson, 263 U. S. 197, 214, 215, 44 S. Ct. 15, 68 L. Ed. 255.

V.

[1] The statute regulating the practice of medicine and conferring powers of registration of physicians and of revocation of such registration for cause, has been before the court in numerous cases. Commonwealth v. Porn, 196 Mass. 326, 82 N. E. 31, 17 L. R. A. (N. S.) 94, 13 Ann. Cas. 569; Commonwealth v. Jewelle, 199 Mass. 558, 85 N. E. 858; Commonwealth Houtenbrink, 235 Mass. 320, 126 N. E. 669; Commonwealth v. Zimmerman, 221 Mass. 184, 108 N. E. 893. Ann. Cas. 1916A, 858; Commonwealth v. De Lon, 219 Mass. 217, 106 N. E. 846; Commonwealth v. Lindsey, 223 Mass. 392, 111 N. E. 869; Commonwealth v. Dragon, 239 Mass. 549, 132 N. E. 356. Its constitutionality, although decided or assumed in all of those decisions, was examined at large in Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 132 N. E. 174. After a detailed analysis of the statute and a review of many authorities, its constitutionality was upheld. It would be vain repetition to go over that ground again. No argument not then considered has now been addressed to us. Further reflection affords no ground to doubt the soundness of that adjudication. It

Report from Superior Court, Hampden is affirmed. It is supported in principle by County; A. R. Weed, Judge.

Douglas v. Noble, 261 U. S. 165, 43 S. Ct. 303, 67 L. Ed. 590, and Lehmann v. State Board, 263 U. S. 394, 44 S. Ct. 128, 68 L. Ed. 354, both decided since.

Suit by George Healy Davis against Samuel H. Calderwood and others, to enjoin defendants, as the Board of Registration in [2] The statute requires a hearing before Medicine, from proceeding with hearing on a public board, at which the plaintiff may notice to show cause why plaintiff's registra- be represented by counsel and call witnesses, tion as practitioner of medicine should not be with provision for further hearing in court revoked. Case was reported on bill and or- and for revision and reversal of the finding der for interlocutory decree. Bill dismissed. of the board if justice demands such acA. A. Tyler, of Springfield, for plaintiff. tion. Every constitutional right is protectJ. R. Benton, Atty. Gen., and A. Chesley ed. In re Stevens, 228 Mass. 368, 117 N. E. York, Asst. Atty. Gen., for defendants.

588.

(146 N.E.)

It was stated in the notice of hearing to be given to the plaintiff that the specific charge against him was "alleged association with an unregistered person, to wit, James P. Coll, of 124 State St., Springfield, Mass." Apparently this charge was framed under G. L. c. 112, § 2, whereby the board is empowered after hearing to "revoke any certificate issued by it and cancel for a period not exceeding one year, the registration of any physician, who has been shown at such hearing to have been guilty * of acting as principal or assistant in the carrying on of the practice of medicine by an unregistered person."

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[3, 4] The notice to be issued to a registered physician of such a hearing is not to be construed with technical strictness. It is to be assumed also that further specifications would be given on proper request in any instance when the subject-matter was not fairly set out in the initial notice. No such request appears to have been made in the case at bar. Every presumption is to be made in favor of the regularity and fairness of the methods of procedure and of the proposed action of such a board. Moore Drop Forging Co. v. Board of Conciliation and Arbitration, 239 Mass. 434, 437, 132 N. E. 169; Ayer v. Commissioners of Height of Buildings, 242 Mass. 30, 35, 136 N. E. 338.

[5, 6] The contention cannot be supported that assisting an unregistered person in practicing medicine is not a sufficient ground for the revocation or cancellation of a registration. Incidental means for enforcing and giving effect to a valid statute violate no constitutional rights. This provision stands on this point with the main provisions of the

act.

Separate actions by Eva M. Dumas and Ovide A. Dumas against John C. Ward were tried together. The jury found for plaintiffs. On exceptions of defendant to admission of testimony and refusal of instructions. Exceptions overruled.

John F. McGrath, of Fitchburg, J. Joseph MacCarthy, of Worcester, and Francis T. Mullin, of Rochdale, for plaintiffs.

Marvin M. Taylor, of Worcester, for defendant.

PIERCE, J. These are actions of tort brought by the plaintiffs, who are husband and wife, to recover damages for personal injuries sustained by a collision of two automobiles, one owned by Eugene E. McCarthy and the other by the defendant, John C. Ward. The cases were tried together to a jury with two other cases, Ward v. McCarthy and McCarthy v. Ward. In the lastnamed cases the jury found for the defendants. In the two entitled Dumas v. Ward, the jury found in each case for the plaintiff. The same exceptions to the admission of testimony and to the refusals of the presiding judge to instruct the jury as requested were saved by the defendant in each case.

The facts appearing in the meager record are, in substance, that on the night of the accident the plaintiff Mrs. Dumas became apprehensive that she was about to be confined and called a physician, who advised the plaintiff Mr. Dumas to take his wife at once to a hospital; that the physician suggested that the husband get one McCarthy, who lived directly across the street, to take them. It further appears that McCarthy at that time was doing a taxi business, carrying people around for hire if they wanted him to

Final decree to be entered dismissing the do so. It further appears that at a quarter bill.

of 1 in the morning Dumas saw McCarthy and asked him to carry himself and his wife to the Memorial Hospital in Worcester; that McCarthy "said, 'Certainly,'" and thereafter drove his machine with the plaintiffs riding in it until the collision with the machine of the defendant on Main street, Worcester. Subject to the exception of the defendant, Negligence 93(1)—Negligence of driver, of McCarthy was allowed to answer, “No, sir." automobile not imputable to guests.

DUMAS v. WARD (two cases). (Supreme Judicial Court of Massachusetts. Worcester. Feb. 27, 1925.)

Negligence of owner and driver of automobile is not imputable to persons riding with him, whether they are guests or passengers for hire; and where two separate actions by husband and wife against owner of automobile, which coilided with car in which they were riding, were consolidated with two actions between owners of respective cars, receipt in evidence of testimony, showing that plaintiff husband and wife were but gratuitous guests, and refusal of instructions which denied them recovery, if negligence of driver of the car in which they were riding contributed to accident, was not error.

to the question, "Were you to get any pay?" "No, sir," to the question, "Was there any agreement you were to be paid for this?" and "Just as a neighborly act, naturally as anybody would," to the question, "Were you doing it as a neighborly act?"

At the close of the evidence the defendant

duly requested the following instructions to the jury:

"1. If the negligence of the plaintiff, McCarthy, contributed to the accident, he cannot

recover.

"2. If the negligence of the plaintiff, McCarthy, contributed to the accident, the plaintiffs Exceptions from Superior Court, Worces- Ovide and Eva Dumas, cannot recover. ter County; Walsh, Judge.

"3. Upon all the evidence as to the plain

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