defense, it is too late to raise question on ap- [required. The evidence did not reach the peal.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action of contract by Louis L. Lowenstein and others against Alfred A. Silton to recover for goods sold and delivered. On plaintiffs' exceptions. Exceptions overruled.

degree of certainty necessary to warrant the inference of proof. Settlement with creditors and a statement that everything had come out all right are not the equivalent of composition under the Bankruptcy Law. The charge was sufficiently favorable to the plaintiffs.

[4] No question was raised at the trial that

Samuel Brenner and Philip Aronson, both bankruptcy had not been pleaded as a deof Boston, for plaintiffs.

fense. No ruling of that nature was requested and no exception saved to the charge on that ground. It is too late to raise it now. Moreover, it was pleaded in answer that the plaintiffs no longer owned the claim. Exceptions overruled.

RUGG, C. J. [1] This is an action of contract to recover for goods sold and delivered. The defendant filed a declaration in set-off. The defendant did not deny that at some time he owed the plaintiffs the amount of their claim. There was evidence tending to show an accord and satisfaction between the parties. That was one reliance of the defendant. There was evidence tending to show that at some time thereafter the plaintiffs went into bankruptcy and a receiver was appointed and took charge of their property.. One of the plaintiffs testified that "the bankruptcy case was settled with the creditors." The defendant testified that one of the plaintiffs told him that some objection was being made to "our composition," and later told him that "everything had come out all right." The plaintiffs' requests for a directed verdict in their favor on their declaration was denied rightly. The jury may have believed the defendant to the effect that there was an accord and satisfaction and that the parties mutually agreed that their respective claims should balance each other.

[2] The plaintiffs' exception to the denial of their request that the defendant could not recover on certain counts in his declaration in set-off has become immaterial because the verdict of the jury was in the plaintiffs' favor on the defendant's declaration in set-off.

[3] The plaintiffs excepted to the refusal to grant a request for a ruling that there was no question of fact with regard to title to the claim after bankruptcy proceedings. The charge in this particular was that, if a bankrupt owns claims against creditors, such claims would pass to the trustee in bankruptcy or to the receiver if there was a receiver, and that they would not come back to the bankrupt except through a conveyance from the trustee or receiver or a termination of the proceedings in such way, about which there was no evidence, that property revested in the original creditor. The question whether the plaintiffs were owners of the claims was left to the jury. There was no evidence as to the ending of the proceedings in bankruptcy by a composition under the law. No record was introduced. The testimony would hardly have supported a finding of a composition under the Bankruptcy Law (U. S. Comp. St. §§ 9585-9656). Certainly, no such finding was

COMMONWEALTH v. LEWANDOWSKI.
(Supreme Judicial Court of Massachusetts.
Hampshire. Feb. 27, 1925.)
Criminal law 202 (3)-Offenses of ex-
posing and keeping for sale and of keeping
and maintaining tenement for purpose of sale
of intoxicating liquor are separately punisha-
ble.

Offenses of exposing and keeping for sale of intoxicating liquors with intent unlawfully to sell, and of keeping and maintaining a tenement used for illegal sale and keeping of intoxicating liquor, are separately punishable, under G. L. c. 138, §§ 2, 86, and chapter 139, §§ 14, 15, and acquittal or conviction for either does not bar conviction for the other.

2. Criminal law 969-Motion in arrest of Judgment not allowable for cause existing before verdict, except it affects jurisdiction.

Under G. L. c. 278, § 34, motion in arrest before verdict, unless it affects jurisdiction. of judgment is not allowable for cause existing

Exceptions from District Court, Hampshire County; Dillon, Judge.

Charles Lewandowski was found guilty of keeping and maintaining a certain tenement for the illegal sale and illegal keeping of intoxicating liquor to the common nuisance of the people, and he excepts to refusal of the court to set aside verdict and to denial of

motion in arrest of judgment. Exceptions

overruled.

Thos. J. Hammond, Dist. Atty., of Northampton, for the Commonwealth. Daniel D. O'Brien, of Northampton, and N. Seelye Hitchcock, of Easthampton, for defendant.

BRALEY, J. The defendant was tried on two complaints which respectively charged, that on April 12, 1924, he did expose and keep for sale intoxicating liquors with intent unlawfully to sell the same, and during the 12 months next before April 26, 1924, the date of the complaint, he did keep and main

(146 N.E.)

fully discharged not required to engage in business of different character.

One wrongfully discharged is not bound to engage in business, not of the same general character or in a different locality, to mitigate damages.

tain a certain tenement used for the illegal | 3. Master and servant 42(1)—One wrong. sale and illegal keeping for sale of intoxicating liquor "to the common nuisance of the people." G. L. c. 138, §§ 2, 86; Id. c. 139, §§ 14, 15. See Commonwealth v. Nickerson, 236 Mass. 281, 128 N. E. 273, 10 A. L. R. 1568. The cases were tried together, and submitted to the jury under instructions to which no exceptions were taken. A verdict of not guilty was returned on the first complaint, but, having been convicted on the second complaint, the defendant moved to set aside the verdict, and that a verdict of not guilty be entered by order of court. He also filed a motion in arrest of judgment. The motions were denied and the case is here on his exceptions.

4. Master and servant 43 - Whether discharged employé exercised diligence in obtaining other employment held for jury.

Whether employé, wrongfully discharged, exercised reasonable diligence in obtaining other employment, held under evidence for jury.

Exceptions from Superior Court, Suffolk County; E. T. Broadhurst, Judge.

Action of contract by Charles Osadchuk [1] It is settled, that the two offenses are against Harry Gordon and others to recovnot the same but are separately punishable, er damages for breach of written contract and the acquittal or conviction on either com- for personal employment. On defendants' explaint is not a bar to a conviction and sen- ceptions to the denial of their motion for tence on the other complaint. Common- new trial, and to refusal of judge to give rewealth v. O'Donnell, 8 Allen, 548, 550; Com-quested rulings. Exceptions overruled. monwealth v. McCable, 193 Mass. 98, 102; Commonwealth v. Haddad, 250 Mass. 145 N. E. 561.

[2] It is provided by G. L. c. 278, § 34, that "No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless it affects the jurisdiction of the court," and nothing was open to the defendant except matters appearing of record when the motion in arrest of judgment was filed. Commonwealth v. Brown, 150 Mass. 334, 341, 23 N. E. 98: The court, however, for reasons just stated, had jurisdiction of the offense charged, and, no error of law appearing in the denial of both motions, the exceptions

must be overruled.

So ordered.

OSADCHUK v. GORDON et al.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

1. Master and servant 40(1)-Plaintiff, suing for breach of contract of employment, has burden of proving performance.

Plaintiff, suing to recover damages for breach of written contract of personal employment, has burden of proof as to his own performance of the contract.

2. Master and servant 43-Directed verdict

W. P. Murray and Michael Ruane, both of Boston, for plaintiff.

Martin Witte and F. P. Garland, both of Boston, for defendants.

BRALEY, J. This is an action of contract to recover damages for breach of a written contract of personal employment. The plaintiff obtained a verdict, and the defendants bring the case here on exceptions to the denial of their motion for a directed verdict, and to the refusal of the judge to give their requests for rulings.

The defendants, who were manufacturers

of sweaters, cloth and knit goods under the firm name of the Suffolk Knitting Company, purchased of the plaintiff, also a manufacturer of sweaters, his machinery and stock in trade. But before the plaintiff began business for himself he had been employed for many years by the defendants as an expert machinist, and by reason of experience he had become familiar with the making of goods in which they dealt. It was under these circumstances that the parties, November 29, 1919, eptered into a contract under which the plaintiff was hired for a period of three years and one month beginning December 7, 1919, at a fixed compensation of $85 a week, with additional compensation in the form of a commission of one-half of 1 per cent. of the net sales in each year, "which amount shall be determined by de

for defendant in action for breach of contract ducting from gross sales on all manufactured held properly denied.

Defendant's motion for directed verdict in action for breach of contract of employment held properly denied, where there was evidence sufficient to go to jury and sustain finding that plaintiff had fully performed, or that any failure to perform had been waived by defendants.

products the amount allowed for discount and for returned goods." If the total amount did not produce an average weekly income of $150, the defendants undertook to make up the deficiency. The plaintiff, who was to act "in the capacity of assistant supervisor of manufacture, boss knitter, and machinist," agreed "to devote his entire time

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

[2] The motion for a directed verdict, and the defendants' second, fourth, sixth and seventh requests were rightly denied. Ransom v. Boston, 192 Mass. 299, 307, 78 N. E. 481, 7 Ann. Cas. 733; Id., 196 Mass, 248, 81 N. E. 998.

The defense in mitigation of damages is that the plaintiff after his discharge could have obtained employment but voluntarily preferred to remain idle. Therefore the question is whether it could be found that he either obtained, or could have procured, employment to which he was adapted. In the absence of such proof the plaintiff is entitled to recover the compensation named in the contract. See Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 6, 7, 85 N. E. 877, and cases there collected. The plaintiff testified that after his discharge he sought re-employment by the defendants, but, the application being unsuccessful, he went to one Wallace, a manufacturer of sweaters, and "asked Wallace if he could get something for him to do." The interview resulted in an agreement between the plaintiff and Wal

The defendant Barron as a witness admitted that he had general supervision of the entire plant, and gave directions to the plaintiff concerning work required of him. And the auditor, whose reports were properly before the jury, finds that the plaintiff faithfully performed all the duties of a machinist, boss knitter, and assistant supervisor of manufacture, as well as attending to the efficient operation of the knitting machines, and that he was ready and willing to continue to perform his contract except for the acts of the defendants in terminating his employment. The evidence exclusive of the auditor's reports also warranted a finding that no valid objection or complaint was made by the defendants concerning the ex-lace to become partners, and the partnership tent of the duties the plaintiff actually performed, and that, acting under their control and direction, obedience to their demands required all of his time, and he was under no contractual obligation to do more. affirmative answer of the jury to the inquiry of the judge, "I take it that you found that the plaintiff had fully performed his contract with respect to services as assistant supervisor of manufacture," is supported by the record.

* * *

The

lasted from May 9, 1920, to April, 1921. The plaintiff then went into business for himself until February, 1922, and has since continued to carry on business with other partners. In cross-examination he was asked if he had solicited employment from certain knitting companies enumerated by defendants' counsel, and replied, that he did not, but sought employment only from, Wallace with whom he entered into partnership nine days after he left the defendants.

[1] While on this issue the burden of proof [3, 4] It is plain that, if the jury believed under Stark v. Parker, 2 Pick. 267, 13 Am. him, he did not remain idle, but worked as Dec. 425, rested on the plaintiff, the question a partner with Wallace, and afterwards on all the evidence was for the jury whether for himself, and then with other partners his occasional absence during the somewhat in a kind of business or employment as prolonged illness of his wife and until her the auditor reports with which he was famildeath, was with the express permission of iar. The plaintiff was not bound to engage the defendant Barron who was acquainted in a business that was not of the same gen.with the circumstances. It also was a ques-eral character, nor at a different locality, tion of fact whether the plaintiff's absence and the question, whether he had used reafor three days when unable to work because of an attack of influenza was not waived by the defendants, who made no objection to his return, but continued to employ him as provided in the contract. Farlow v. Ellis, 15 Gray, 229, 231, 232. The evidence of the plaintiff as well as the auditor's reports warranted a finding in his favor on these ques-ue of the plaintiff's contract of service. Maytions.

It follows from what has been said that the jury could find the defense of justification had not been sustained. Sipley v. Stickney, 190 Mass. 43, 76 N. E. 226; Mountford v. Cunard Steamship Co., 202 Mass. 345, 88 N. E. 782; Frati v. Jannini, 226 Mass. 430, .115 N. E. 746.

We discover no fatal variance, as the defendants urge, between the evidence and the allegations of the declaration as finally

sonable diligence, and had done the best that he could under prevalent mercantile conditions and opportunities for obtaining employ ment appearing in the evidence, was one of fact for the jury, who were properly instructed to allow such deductions, if any, as the evidence warranted, from the fair val

nard v. Royal Worcester Corset Co., 200 Mass. 1, 7, 8, 85 N. E. 877; Costigan v. Mo-. hawk & Hudson Railroad, 2 Denio (N. Y.) 609, 43 Am. Dec. 758.

The eighth and ninth requests could not have been given. The tenth, eleventh, twelfth, thirteenth and fourteenth requests relating to alleged rulings and findings by the auditor, and the effect to be given to his reports by the jury, were, in so. far as pertinent, fully and appropriately covered by the

(146 N.E.)

except. Fair v. Manhattan Ins. Co., 112 [ that petition a demurrer was filed on various
Mass. 320, 328; Tripp v. Macomber, 187 grounds. An order was entered sustaining
Mass. 109, 72 N. E. 361; Jaquith v. Morrill, the demurrer. The petitioners' exceptions
204 Mass. 181, 90 N. E. 556; Zembler v. bring the case here.
Fitzgerald, 234 Mass. 236, 125 N. E. 299;
Title Guaranty & Security Co. v. Ley & Co.,
Inc., 238 Mass. 113, 130 N. E. 73; King v.
Freedman, 239 Mass. 560, 132 N. E. 367.
Exceptions overruled.

KLOUS et al. v. BOLSTER et al., Municipal warrants issuing on these complaints and

Exceptions from Supreme Judicial Court, crimes charged, does not compel the former Suffolk County.

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

See Commonwealth v. Brown, 167 Mass.. of personal liberty is held sacred. But that 144, 148, 45 N. E. 1.

right must yield to prosecutions for crime according to standing laws. The complaint of the petitioners is against an established method of procedure under the laws of this commonwealth.

[2] The grand jury is an institution preserved by the Constitution of this commonwealth. It always has been regarded as an important part of our criminal procedure. It has been jealously protected against encroachments on its essentials either by statute or by loose practice. Jones v. Robbins, 8 Gray, 329; Commonwealth v. Harris, 231 Mass. 584, 121 N. E. 409; Lebowitch, Petitioner, 235 Mass. 357, 126 N. E. 831; Opinion of Justices, 232 Mass. 601, 123 N. E. 100. The judicial system of this commonwealth with reference to the prosecution for crimes has always been framed with reference to the power of the grand jury to make pre-1. sentment. The extension of the jurisdiction of district courts over many classes of crimes was designed in part to afford more speedy trials and to relieve the superior court.

That function of the district courts is important and doubtless ought to be widely used. Attorney General v. Tufts, 239 Mass. 458, 514, 515, 131 N. E. 573, 132 N. E. 322, 17 A. L. R. 274. But it is not the design of legislation to that end to hamper the action of the grand jury in crimes of magnitude where its intervention is deemed necessary. It has been the immemorial custom in this commonwealth, since the establishment of the district courts and other earlier tribunals of more or less similar character, for the grand jury to consider crimes, prosecution for which is pending in these courts, in instances where the public interests seemed to require such investigation. Such cases naturally would not be frequent. It also has been the custom, in instances where an indictment has been found for the same or a graver offense, for the district court not to try the complaint pending before it.

The power of a district court to order a complaint dismissed is recognized in Commonwealth v. Bressant, 126 Mass. 246, and in Commonwealth v. Hart, 149 Mass. 7, 20 N. E. 310.

A different question would be presented if defendants in the district court were obliged to accept its jurisdiction as final. Under the present judicial system a finding of guilty in the district court does not bind the defendant, but he may appeal to the superior court; while a finding of not guilty binds the commonwealth and prevents further prosecution for the same offense by indictment or otherwise.

[3] We are of opinion that it cannot be pronounced beyond the jurisdiction of the respondents to dismiss the complaints pending before them by reason of indictments having been returned charging the same crimes.

Exceptions overruled.

FLYNN v. COLBERT et al. (four cases).
DONOVAN v. SAME.

(Supreme Judicial Court of Massachusetts.
Middlesex. Feb. 27, 1925.)

Executors and administrators 466 Guardian and ward 142-If failure to include certain sums in statement of executor and guardian was due to mutual mistake, heirs were entitled to cancellation of releases.

clude assets of estate in statement made to If failure of executor and guardian to inheirs was due to mutual mistake, mistake was ground for cancellation of heirs' release of executor and guardian and bondsmen from liability.

and administrators 466 2. Executors Guardian and ward 142-Heirs held entitled to cancellation of releases for constructive fraud.

Misrepresentation of executor and guardian made, was constructively fraudulent, and entias to amounts due heirs, however innocently tled heirs to cancellation of release of liability. 3. Executors and administrators ian and ward 28-Relation between executor and those he represents, and guardian and ward, are fiduciary.

75-Guard

Relations existing between executor and those he represents, and between guardian and ward, are those of trust and confidence, and are of fiduciary character.

4. Executors and administrators

75-Guard

ian and ward 28-Executor and guardian are required to exercise absolute good faith. Executors and guardians, while occupying those relations toward persons they represent and wards, are required to exercise absolute good faith.

5. Guardian and ward 164-Guardian's settlement with ward after latter's majority must be fair and reasonable.

fore as well as after ward becomes of full age Settlement made by guardian with ward bewill be subjected to careful scrutiny, and must be fair and reasonable.

6. Executors and administrators 466 Guardian and ward 142-That heirs failed to restore consideration for releases held no objection to cancellation thereof.

Suit by heirs for cancellation of releases to tation that amount paid them was all that was executor and guardian, induced by misrepresendue, was not barred by failure to restore consideration received, money paid them belonging

[4] This conclusion violates no constitutional right of the petitioners. The right to them.