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(146 N.E.)

[3] Individual judges have no power to CARP V. KAPLAN et al.

dispense with rules lawfully adopted for the (Supreme Judicial Court of Massachusetts.

conduct of the business of the courts. Oliver Suffolk. Feb. 27, 1925.)

Ditson Co. v. Testa, 216 Mass. 123, 125, 103

N. E. 381; Everett-Morgan Co. v. Boyajian
1. Trial 174 Request for ruling held in ef- Pharmacy, 244 Mass. 460, 462, 139 N. E. 170.
fect motion for directed verdict, properly de. There was no attempt on the part of the

presiding judge to waive the rule. He was
Request for ruling that “on all the evidence not required to take notice of the request
the plaintiff is not entitled to recover” held in in the form in which it was presented.
substance a motion for directed verdict for de-
fendant, and properly denied for failure to com-

If the question attempted to be raised be
ply with superior court rule (1923) No. 44.

considered on its merits, there was no re

versible error.
2. Courts Cm 80(1)-Court rule as to motion tiff was somewhat conflicting.

The testimony of the plain

It was not
for directed verdict held proper, and within in such unequivocal form that he was bound
power of court to adopt,
Superior court rule (1923) No. 44, requir- by any particular part of it as matter of

ing motion for directed verdict to be separate

Sullivan v. Boston Elevated Railway, matter, dissociated from requests for instruc- 224 Mass. 405, 407, 112 N. E. 1025. A ques. tions, held proper requirement, and within pow- tion was presented for the decision of the er of court to adopt, under G. L. c. 213, $ 3. jury. The main point of the case is gov. 3. Courts 82-Individual judges have no

erned by Phippen V. Stickney, 3 Metc. 384,

power to dispense with rules adopted for con- and Gibbs v. Smith, 115 Mass. 592.
duct of courts.

Hopkins v. Ensign, 122 N. Y. 144, 25 N. E.
Individual judges have no power to dis- 306, 9 L. R. A. 731.
pense with rules adopted for conduct of courts. Exceptions overruled.

Exceptions from Superior Court, Suffolk
County; Marcus Morton, Judge.
Action of contract by George S. Carp

against one Kaplan and one Leitman, doing
business as the Virginia Bag Company, with

(Supreme Judicial Court of Massachusetts.
trustee process.
On defendants' exceptions

Suffolk. Feb. 27, 1925.)
to refusal of court to rule. Exceptions over-

1. Accord and satisfaction 27 - Evidence

held to warrant refusal of directed verdict. Maurice Jacobs, of Boston, for plaintiff.

In action for price of goods sold and delivRichard M. Walsh and E. Philip Finn, ered, where there was evidence tending to show both of Boston, for defendants.

accord and satisfaction between parties, plain

tiffs' request for directed verdict was denied
RUGG, C. J. This action to recover dam- rightly.
ages for breach of contract was tried before 2. Appeal and error w 1068(5)-Exception to
a jury.
At the close of the evidence the

denial of request held immaterial, in view of
counsel for the defendant submitted to the verdict.
judge among other requests for rulings this: Plaintiffs' exception to denial of request

"Upon all the evidence the plaintiff is not en- that defendant could not recover on certain
titled to recover."

counts in declaration in set-off became immate

rial, where verdict was for plaintiff.
[1] This was in substance a motion for a 3. Sales Com364(1)-Charge on bankrupt's ti-
directed verdict in favor of the defendant,

tle to claim against creditors held favorable
and it was commingled with other requests

to plaintiffs. for instructions to the jury. It is manifest

In action for price of goods sold and delivthat this was not in accordance with the part ered, where evidence showed that at some time of rule 44 of the superior court 1923 rules, after sale plaintiffs went into bankruptcy and which requires that:

receiver took charge of their property, charge “The question whether the court should order that claims of bankrupt against creditors go to a verdict must be raised by a motion. Such trustee or receiver, and do not come back to question shall not be raised by a request for bankrupt, except through conveyance by trusinstructions to the jury."

tee or receiver, or termination of proceedings in

such way that property revests in creditor, was
[2] This is a valid rule. It is a proper sufficiently favorable to plaintiffs.
requirement that a motion for a directed 4. Appeal and error Om 197(7)–Objection that
verdict be a separate matter, dissociated

bankruptcy was not pleaded as defense can-
from requests for particular instructions to not first be urged on appeal.
the jury. Its adoption is within the power In action for price of goods sold and deliv-
of the Superior Court under G. L. C. 213, 8 ered, where no question was raised at trial that
3. It was binding upon the defendant. plaintiffs' bankruptcy bad not been pleaded as

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

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

degree of certainty necessary to warrant the

inference of proof. Settlement with crediExceptions from Superior Court, Suffolk tors and a statement that everything had County; William Cushing Wait, Judge.

come out all right are not the equivalent of Action of contract by Louis L. Lowenstein composition under the Bankruptcy Law. and others against Alfred A. Silton to recoy- | The charge was sufficiently favorable to the er for goods sold and delivered. On plain- plaintiffs. tiffs' exceptions. Exceptions overruled.

[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 request

ed and no exception saved to the charge on RUGG, C. J. [1] This is an action of con- that ground. It is too late to raise it now. tract to recover for goods sold and delivered. Moreover, it was pleaded in answer that the The defendant filed a declaration in set-off. plaintiffs no longer owned the claim. The defendant did not deny that at some

Exceptions overruled. 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 defend

COMMONWEALTH V. LEWANDOWSKI. ant. There was evidence tending to show that at some time thereafter the plaintiffs (Supreme Judicial Court of Massachusetts. went into bankruptcy and a receiver was ap

Hampshire. Feb. 27, 1925.) pointed and took charge of their property. 1. Criminal law Ow202(3)-Offenses of ex. One of the plaintiffs testified that “the bank

posing and keeping for sale and of keeping ruptcy case was settled with the creditors.”

and maintaining tenement for purpose of sale The defendant testified that one of the plain of intoxicating liquor are separately punisha. tiffs told him that some objection was being

ble, made to "our composition," and later told Offenses of exposing and keeping for sale of him that "everything had come out all right." | intoxicating liquors with intent unlawfully to The plaintiffs' requests for a directed verdict sell, and of keeping and maintaining a tenement in their favor on their declaration was de- used for illegal sale and keeping of intoxicating nied rightly. The jury may have believed liquor, are separately punishable, under G. L. the defendant to the effect that there was an acquittal or conviction for either does not bar

c. 138, 88 2, 86, and chapter 139, $$ 14, 15, and accord and satisfaction and that the parties conviction for the other. mutually agreed that their respective claims should balance each other.

2. Criminal law 969-Motion in arrest of [2] The plaintiffs' exception to the denial

Judgment not allowable for cause existing be.

fore verdict, except it affects jurisdiction. of their request that the defendant could not

Under G. L. c. 278, § 34, motion in arrest recover on certain counts in his declaration in set-off has become immaterial because the of judgment is not allowable for cause existing

before verdict, unless it affects jurisdiction. verdict of the jury was in the plaintiffs' fav. or on the defendant's declaration in set-off.

Exceptions from District Court, Hampshire [3] The plaintiff's excepted to the refusal County; Dillon, Judge. to grant a request for a ruling that there was no question of fact with regard to title

Charles Lewandowski was found guilty of to the claim after bankruptcy proceedings. keeping and maintaining a certain tenement The charge in this particular was that, if a for the illegal sale and illegal keeping of inbankrupt owns claims against creditors, such toxicating liquor to the common nuisance of claims would pass to the trustee in bank- the people, and he excepts to refusal of the ruptcy or to the receiver if there was a re

court to set aside verdict and to denial of ceiver, and that they would not come back motion in arrest of judgment. Exceptions to the bankrupt except through a convey

overruled. ance from the trustee or receiver or a ter Thos. J. Hammond, Dist. Atty., of Yorthmination of the proceedings in such way, / ampton, for the Commonwealth. about which there was no evidence, that Daniel D. O'Brien, of Northampton, and property revested in the original creditor. N. Seelye Hitchcock, of Easthampton, for The question whether the plaintiffs were defendant. owners of the claims was left to the jury. There was no evidence as to the ending of BRALEY, J. The defendant was tried on the proceedings in bankruptcy by a composi- two complaints which respectively charged, tion under the law. No record was intro- that on April 12, 1924, he did expose and duced. The testimony would hardly have keep for sale intoxicating liquors with insupported a finding of a composition under tent unlawfully to sell the same, and during the Bankruptcy Law (U. S. Comp. St. $s the 12 months next before April 26, 1924, the 9585–9656). Certainly, no such finding was ) date of the complaint, he did keep and main

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(146 N.E.) tain a certain tenement used for the illegal, 3. Master and servant Om 42(1)-One wrong. sale and illegal keeping for sale of intoxicat- fully discharged not required to engage in ing liquor “to the common nuisance of the

business of different character. people." G. L. c. 138, 8$ 2, 86; Id. c. 139, SS One wrongfully discharged is not bound to 14, 15. See Commonwealth v. Nickerson, 236 engage in business, not of the same general Mass. 281, 128 N. E. 273, 10 A. L. R. 1568. character or in a different locality, to mitigate

damages. The cases were tried together, and submitted to the jury under instructions to which' no 4. Master and servant m43 — Whether disexceptions were taken. A verdict of not charged employó exercised diligence in obguilty was returned on the first complaint, taining other employment held for jury. but, having been convicted on the second Whether employé, wrongfully discharged, complaint, the defendant moved to set aside exercised reasonable diligence in obtaining oththe verdict, and that a verdict of not guilty er employment, held under evidence for jury. be entered by order of court. He also filed a motion in arrest of judgment. The motions

Exceptions from Superior Court, Suffolk were denied and the case is here on his ex- County; E. T. Broadhurst, Judge. ceptions.

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;

W. P. Murray and Michael Ruane, both of Commonwealth v. Haddad, 250 Mass.

Boston, for plaintiff. 145 N. E. 561.

Martin Witte and F. P. Garland, both of [2] It is provided by G. L. C. 278, 34, that

Boston, for defendants.
"No motion in arrest of judgment shall be
allowed for a cause existing before verdict,
unless it affects the jurisdiction of the court,"

BRALEY, J. This is an action of contract
and nothing was open to the defendant er to recover damages for breach of a written
.cept matters appearing of record when the contract of personal employment. The plain.
motion in arrest of judgment was filed. Com- tiff obtained a verdict, and the defendants
monwealth v. Brown, 150 Mass. 334, 341, 23 bring the case here on exceptions to the de-
N. E. 98: The court, however, for reasons nial of their motion for a directed verdict,
just stated, had jurisdiction of the offense and to the refusal of the judge to give their
charged, and, no error of law appearing in requests for rulings.
the denial of both motions, the exceptions

The defendants, who were manufacturers must be overruled.

of sweaters, cloth and knit goods under the So ordered.

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 OSADCHUK V. GORDON et al.

for many years by the defendants as an ex

pert machinist, and by reason of experience. (Supreme Judicial Court of Massachusetts. he had become familiar with the making of Suffolk. Feb. 28, 1925.)

goods in which they dealt. It was under

these circumstances that the parties, Novem1. Master and servant 40(1)-Plaintiff, su- ber 29, 1919, entered into a contract under ing for breach of contract of employment, has which the plaintiff was hired for a period of burden of proving performance.

three years and one month beginning DePlaintiff, suing to recover damages for cember 7, 1919, at a fixed compensation of breach of written contract of personal employ- $85 a week, with additional compensation ment, has burden of proof as to his own per- in the form of a commission of one-half of formance of the contract.

1 per cent. of the net sales in each year,

"which amount shall be determined by de2. Master and servant saw 43–Directed verdict ducting from gross sales on all manufactured

for defendant in action for breach of contract products the amount allowed for discount held properly denied.

and for returned goods." If the total Defendant's motion for directed verdict in amount did not produce an average weekly action for breach of contract of employment income of $150, the defendants undertook to held properly denied, where there was evidence sufficient to go to jury and sustain find make up the deficiency. The plaintiff, who ing that plaintiff had fully performed, or that

was to act "in the capacity of assistant suany failure to perform had been waived by de pervisor of manufacture, boss knitter, and fendants.

machinist," agreed “to devote his entire time

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to the faithful performance of the services [2] The motion for a directed verdict, and

stated which shall benefit the busi- | the defendants' second, fourth, sixth and ness of the company." He began work De- seventh requests were rightly denied. Rancember 9, 1919, and remained in the defend- som v. Boston, 192 Mass, 299, 307, 78 N. E. ants' service until May 6, 1920, when, as 481, 7 Ann. Cas. 733; Id., 196 Mass, 248, 81 the jury on conflicting evidence could find, N. E. 998. he was discharged. The plaintiff contends The defense in mitigation of damages is that, not having committed any breach him- that the plaintiff after his discharge could self, the discharge was wrongful.

have obtained employment but voluntarily The defendant Barron as a witness admit- preferred to remain idle. Therefore the ted that he bad general supervision of the question is whether it could be found that entire plant, and gave directions to the plain- he either obtained, or could have procured, tiff concerning work required of him. And employment to which he was adapted. In the auditor, whose reports were properly be- the absence of such proof the plaintiff is enfore the jury, finds that the plaintiff faith-| titled to recover the compensation named in fully performed all the duties of a machinist, the contract. See Maynard v. Royal Wor. boss knitter, and assistant supervisor of cester Corset Co., 200 Mass. 1, 6, 7, 85 N. E. manufacture, as well as attending to the ef- 877, and cases there collected. The plaintiff ficient operation of the knitting machines, testified that after his discharge he sought and that he was ready and willing to con- re-employment by the defendants, but, the tinue to perform his contract except for the application being unsuccessful, he went to acts of the defendants in terminating his one Wallace, a manufacturer of sweaters, employment. The evidence exclusive of the and "asked Wallace if he could get something auditor's reports also warranted a finding for him to do." The interview resulted in that no valid objection or complaint was an agreement between the plaintiff and Walmade by the defendants concerning the ex- lace to become partners, and the partnership tent of the duties the plaintiff actually per- lasted from May 9, 1920, to April, 1921. The formed, and that, acting under their control plaintiff then went into business for himand direction, obedience to their demands self until February, 1922, and has since conrequired all of his time, and he was under tinued to carry on business with other partno contractual obligation to do more. The ners. In cross-examination he was asked if affirmative answer of the jury to the inquiry he had solicited employment from certain of the judge, “I take it

that you knitting companies enumerated by defendfound that the plaintiff had fully performed ants' counsel, and replied, that he did not, his contract with respect to services as as- but sought employment only from. Wallace sistant supervisor of manufacture,” is sup- with whom he entered into partnership nine ported by the record.

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 sonable diligence, and had done the best that of an attack of influenza was not waived by he could under prevalent mercantile condithe defendants, who made no objection to tions and opportunities for obtaining employ. his return, but continued to em him as ment appearing in the evidence, was one provided in the contract. Farlow v. Ellis, of fact for the jury, who were properly in15 Gray, 229, 231, 232. The evidence of the structed to allow such deductions, if any, plaintiff as well as the auditor's reports war- as the evidence warranted, from the fair val. ranted a finding in his favor on these ques- ue of the plaintiff's contract of service. Maytions.

nard v. Royal Worcester Corset Co., 200 It follows from what has been said that Mass. 1, 7, 8, 85 N. E. 877; Costigan v. Mothe jury could find the defense of justifica- bawk & Hudson Railroad, 2 Denio (N. Y.) tion had not been sustained. Sipley v. Stick- 609, 43 Am. Dec. 758. ney, 190 Mass. 43, 76 N. E. 226; Mountford The eighth and ninth requests could not v. Cunard Steamship Co., 202 Mass. 345, 88 have been given. The tenth, eleventh, N. E. 782; Frati v. Jannini, 226 Mass. 430, twelfth, thirteenth and fourteenth requests 115 N. E. 746.

relating to alleged rulings and findings by. We discover no fatal variance, as the de- the auditor, and the effect to be given to his fendants urge, between the evidence and the reports by the jury, were, in so far as pere allegations of the declaration as finally tinent, fully and appropriately covered by the amended.

instructions to which the defendants did not

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(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; The facts alleged in the petition are in Title Guaranty & Security Co. v. Ley & Co., brief that complaints were made against Inc., 238 Mass. 113, 130 N. E. 73; King v. each of the petitioners in the municipal court Freedman, 239 Mass. 560, 132 N. E. 367. of the city of Boston, one for larceny of Exceptions overruled.

personal property under G. L. C. 266, § 30, and one for receiving stolen goods under G. L. c. 266, § 60, and that the petitioners were

on April 7, 1924, severally arrested upon KLOUS et al. v. BOLSTER et al., Municipal warrants issuing on these complaints and Court Justices.

admitted to bail; that the complaints were (Supreme Judicial Court of Massachusetts. continued for trial until April 16, 1924; that Suffolk. Feb. 27, 1925.)

on April 10, 1924, the grand jury for Suffolk 1. Criminal law 100(3)-Prohibition em 5 county found and returned to the superior

(4)—Municipal court had discretion to bind court indictments against the petitioners for defendants over to superior court, notwith the identical offenses described in the comstanding the court's jurisdiction to try of- plaints, and the petitioners were arrested on fenses charged; discretion not controlled by warrants issued pursuant to the indictments prohibition.

on April 17, 1924; that on April 17, 1924, Municipal court's jurisdiction, under G. L. by order of a judge of the municipal court c. 266, 88 30, 60, to try offenses of larceny and the complaints pending in that court were, receiving stolen goods was not exclusive; but, under G. L. c. 218, § 30, municipal court had against the objection of the petitioners, condiscretion to bind defendants over for trial in tinued to April 24, 1924, the judge ruling superior court, and such discretion will not that he would dismiss the complaints by be controlled by prohibition.

reason of the indictment for the same crimes

pending in the superior court. The prayer 2. Grand jury mal-Judicial system framed of the petition is that, since the municipal with reference to power of grand jury to court of the city of Boston and the superior make presentment.

Judicial system of commonwealth with ref-court have concurrent jurisdiction of the erence to prosecution for crimes has always offenses charged, the petitioners have a right been framed with reference to power of grand to require the municipal court to proceed to jury to make presentment.

trial of their cases, and that that court be

prohibited from dismissing the complaints. 3. Criminal law Om 100(3)-Municipal court held authorized to dismiss complaints, where is not a proper remedy. · It is assumed in

It has not been argued that prohibition indictments charging same crimes were returned to superior court.

favor of the petitioners, but without so deMunicipal court held authorized to dismiss ciding, that they have not invoked this writ pending complaints for larceny and receiving without right. Goulis v. Judge of District stolen goods, where indictments had been re- Court, 246 Mass. 1, 8, 140 N. E. 294 and cases turned in superior court charging same crimes. there collected. Tehan v. Justices of the 4. Constitutional law Om83(1)-Right of per. Municipal Court, 191 Mass. 92, 77 N. E. 313. sonal liberty must yield to prosecutions for See Crocker v. Justices of the Superior Court, crime.

208 Mass. 162, 94 N. E. 369, 21 Ann. Cas.

1061. Right of personal liberty must yield to prosecutions for crime according to standing [1] The circumstance that the municipal laws.

court of the city of Boston has concurrent

jurisdiction with the superior court, of the Exceptions from Supreme Judicial Court, crimes charged, does not compel the former Suffolk County.

tribunal to take full jurisdiction. It might Petition for writ of prohibition by Ben- in its discretion commit or bind over the jamin Klous and another against Wilfred petitioners as defendants for trial in the Bolster and others, as Justices of the Mu- superior court. G. L. C. 218, § 30; Commonnicipal Court of the City of Boston. De- wealth v. Rice, 216 Mass. 480, 104 N. E. 347. murrer to petition was sustained, and pe- It was said in Commonwealth v. Cody, 165 titioners except. Exceptions overruled. Mass. 133, 136, 42 N. E. 575, 576:

L. Marks and N. Haffer, both of Boston, "The pendency of an indictment is no ground for petitioners.

for a plea in abatement to another indictment


in the same court for the same cause. M. Caro, of Boston, for respondents.

monwealth v. Drew, 3 Cush. 279. Nor is it

ground for a plea in bar. Commonwealth v. RUGG, C. J. This is a petition for a writ Berry, 5 Gray, 93. Nor for a motion in arof prohibition against the justices of the rest of judgment. Commonwealth v. Murphy, municipal court of the city of Boston. To 11 Cush. 472."

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