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We are therefore constrained to the con

approved in the case of White v. Calhoun eta record to the contrary." Bly v. Smith, 94 al., 83 Ohio St. 401. No record having been Ohio St. 110, 113 N. E. 659. presented disclosing the evidence submitted to the trial court touching that question, the Court of Appeals very properly assumed that the evidence was such as to warrant the finding made by the trial court and to support its judgment."

And in White v. Calhoun, above referred to, 83 Ohio St. 401, at page 403, 94 N. E. 743, 744, this court, speaking through Spear, C. J., said:

"But such bill is not printed, and we do not find it among the original papers, even if its presence there were important, which it is not, because not printed. Nor is there any finding of facts. We are to presume, therefore, in support of the action of the trial court with respect to the motion and the final judgment rendered, that sufficient evidence was adduced to warrant the action of the court, provided there was power in the court to receive and act upon any evidence whatsoever."

In the same case, at page 407 (94 N. E. 745), the Chief Justice concludes:

clusion that upon the authority of White v. Calhoun, supra, and Thomas v. Kalbfus, supra, the Court of Appeals was in error in reversing the judgment of the superior court, and for that reason the judgment of the Court of Appeals in so doing is reversed, and the time for the preparation and allowance of a bill of exceptions having long since expired, it follows that the judgment of the superior court must be affirmed. Judgment reversed.

MARSHALL, C. J., and JONES, MATTHIAS, ALLEN, KINKADE, and ROBINSON, JJ., concur.

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

"Here again the printed record utterly fails to bear out the objection. Not only is there. no finding of facts by the trial court in the printed record, and no bill of exceptions, but," etc.

"Our conclusion is that a motion to strike off an answer believed to be a sham answer is proper practice, and that the trial court has power to entertain, hear, and determine such motion. It may be proper to add, in order to prevent misunderstanding, that the discretion of the court in such case should be exercised wisely and with discrimination, and such motion sustained only upon such showing upon the part of the plaintiff as leaves no question whatever of the truth and conclusiveness of the plaintiff's evidence."

The record disclosing that the journal of the superior court affirmatively shows that "having heard the evidence introduced on behalf of each party" the court proceeded to render the judgment that it did, and, there being no bill of exceptions or finding of facts disclosing what such evidence was or facts were upon which the superior court rendered the judgment, the presumption of the law is that there was sufficient evidence to sustain the judgment, and in the absence of a bill of exceptions there was nothing before the court of appeals to show error on the part of the trial court.

If an entry shows a certain judgment was the judgment of the court, it will be presumed that such judgment was rendered in accordance with the existing constitutional and statutory provisions. Stugard v. P., C., C. & St. L. Ry. Co., 92 Ohio St. 318, 110 N. E. 956. “A judgment which a court has jurisdiction to render presumes a finding by the court of all things necessary and sufficient to support such judgment, in the absence of

Pleading 252(1)—Amendment of writ to show action in tort or contract has same effect as if action so brought.

Under G. L. c. 231, § 7, cl. 6, § 51, and G. S. c. 129, § 2, cl. 5, permitting count in tort to be joined with a count in contract with averment that both are for same cause of action, and permitting amendments changing form of action, or form or substance of any process, pleading, or proceeding, amendment of writ to show action was in contract or tort had same effect as if action had been so brought. 2. Pleading 249(1)-Plaintiff's intent gov. erns exercise of power of allowing amendments changing form of action.

Plaintiff's intent in bringing suit governs court in exercise of power of allowing amendments changing form of action.

3. Pleading 249(2) In action on contract for services rendered defendant's testator, amendment by addition of count in tort, held within court's power.

Where plaintiff suing on contract for services rendered defendant's testator had been fraudulently induced to go through form of marriage with decedent which she believed was lawful, and had rendered him services for many years, held, that court had power to permit amendment of declaration by addition of count in tort based on same facts.

4. Pleading 248(1)-Identity of cause of action sued upon and one sought to be stated by amendment question of fact for court.

Under G. L. c. 231, § 128, question whether cause of action sought to be stated by amendment of declaration is identical with cause upon which plaintiff intended to sue is one of fact for judge.

Exceptions from Superior Court, Suffolk County; Christopher T. Callahan, Judge.

(146 N.E.)

Action of contract by Theresa B. Holmes | of a home, and performed all other duties that against J. Joseph Carraher, administrator de a wife usually performs for her lawful husbonis non of George E. Bruce. On plain- band; that in said January of 1918 the testatiff's exception to refusal of court to allow tor, for the first time, informed the plaintiff amendment of declaration and to court's de- that the form of marriage they went through in New York was not a legal marriage; that the nial of directed verdict. Exceptions susplaintiff was not his lawful wife, and that she tained. later discovered that this was true, and thereafter, the testator married another woman in a lawful way, by whom he had one child, and who is now his widow."

D. B. Jefferson, of Boston, for plaintiff.
W. Flaherty and M. C. Kelleher, both of
Boston, for defendant.

BRALEY, J. This action originally was in contract for services rendered by the plaintiff to the defendant's testator. But upon the statements of her counsel in his opening to the jury counsel for the defendant having suggested that she could not recover, the plaintiff moved to amend the writ by alleging that the action was either in contract or tort. The motion having been allowed without exception by the defendant, the plaintiff then moved to amend the declaration by adding a count in tort. The defendant objected, and the judge made an order reciting that as matter of discretion he would have allowed the motion, but ruled as matter of law that

[2-4] We are not concerned with the question whether an action of tort can be maintained, or whether the proposed count, if allowed, was demurrable. Lowrie v. Castle, 225 Mass. 37, 41, 113 N. E. 206. The question is whether as matter of law the judge was without authority to allow this amendment. The intention of the plaintiff in bringing suit is to be governed in the exercise of the power is the important element by which the court of action. Mann v. Brewer, 7 Allen, 202, 204. of allowing amendments changing the form The remedies invoked by the plaintiff rest on the testator's fraud practiced intentionally

the court had no power to allow it. The upon her, and on the record they are not inplaintiff excepted.

[1] If it is doubtful whether a cause of action is in tort or in contract, a count in tort may be joined with a count in contract with

an averment that both counts are for one

and the same cause of action. G. L. c. 231, § 7, cl. 6; G. S. c. 129, § 2, cl. 5. The court also may at any time before final judgment allow an amendment changing the form of action, or any other amendment in matter of form or substance in any process, pleading or proceeding which may enable a plaintiff to sustain the action for the cause for which it was

intended to be brought. G. L. c. 231, § 51. The amendment of the writ was in effect the same as if the action had been begun as an action of contract or tort. Flye v. Hall, 224 Mass. 528, 529, 113 N. E. 366; Lufkin v. Cutting, 225 Mass. 599, 114 N. E. 822; Clark v. New England Telephone & Telegraph Co., 229 Mass. 1, 2, 6, 118 N. E. 348.

The facts as stated by the plaintiff's counsel were:

consistent. The cause of action set out in the amendment was substantially based on the in the count in contract for the value of her same misrepresentations as those relied on services. It did not state a new or independ

date of the writ. Teague v. Irwin, 134 Mass. ent cause of action not in existence at the 303, 307; Mahon v. Blake, 125 Mass. 477, 480; Brown v. Sallinger, 214 Mass. 245, 101 N. E. 382; Flye v. Hall, 224 Mass. 528, 113 N. E. E. 177. The question of identity furthermore 366; Loomis v. Pease, 234 Mass. 201, 125 N. is one of fact, and it was for the judge to find whether the amendment might enable the plaintiff to maintain her action for the cause for which it was intended to be brought. Driscoll v. Holt, 170 Mass. 262, 265,

49 N. E. 309; King v. Howes, 181 Mass. 445, 446, 63 N. E. 1062; Herlihy v. Little, 200 Mass. 284, 289, 86 N. E. 294; Lufkin v. Cutting, supra. G. L. c. 231, § 128. The cases of Campbell v. Russell, 139 Mass. 280, 1 N. E. 345, where it was held that an amendment is not to be allowed for the purpose of enabling "That in March of 1891, the plaintiff, then the action to be maintained in another perbeing a girl between sixteen and seventeen son's name and upon a different cause of acyears of age, accompanied the testator to New York for the purpose of being married; that in tion, and Church v. Boylston & Woodbury New York, the plaintiff and the said testator, Café Co., 218 Mass. 231, 105 N. E. 883, holdthen and there, went through a form of mar- ing that an action of tort for personal inriage which she was induced to believe, and juries brought by the intestate could not be did believe, was lawful; that they, after the amended by his administrator by adding a plaintiff believed that she and the testator were count for the intestate's death, and Brooks v. lawfully married, returned to the Boston home Boston & Northern Street Railway, 211 Mass. of the testator where the plaintiff and the 277, 97 N. E. 760, denying an amendment testator lived together as husband and wife where the plaintiff died previous to the date from that time until January of 1918; that during all this time she believed that she and the of the writ and the administrator was not testator were man and wife by virtue of the appointed until a year thereafter, and Strout ceremony performed in New York; that she v. United Machinery Co., 215 Mass. 116, 119, performed all the duties of a housewife, did 102 N. E. 312, deciding that damages which all of the housework, attended to all things the plaintiffs sought in their own name could necessary, usual and incidental in the conduct be covered only by the corporation in which

they were stockholders, are clearly distinguishable.

The court also directed a verdict for the defendant. But the exceptions thereto not having been argued are treated as waived. Exceptions sustained.

WEINSTEIN v. MILLER. (Supreme Judicial Court of Massachusetts. Suffolk. March 3, 1925.)

1. Appeal and error 357(2)-Appeal from final decree held properly before court whether appeal from interlocutory decree permitting amendment of declaration was. good or not.

Where surety on bond given by defendant to dissolve attachment under G. L. c. 231, § 138, appealed from interlocutory decree allowing amendment of declaration and, under G. L. c. 214, § 28, perfected late appeal from final decree, with permission of Supreme Court, held, appeal was properly before such court, regardless of whether or not appeal would lie from interlocutory decree under G. L. c. 214, § 26.

2. Pleading

245(1)-Court may permit amendment to enable plaintiff to sustain cause of action intended to be sued upon at any time before judgment.

CARROLL, J. The rescript in Weinstein v. Miller, 249 Mass. 516, 144 N. E. 387, ordered that the plaintiff be given leave to amend within thirty days, by setting out the modified contract. By an interlocutory decree dated July 9, 1924, the amendment was allowed. The defendant, the Massachusetts Bonding & Insurance Company, surety on the bond to dissolve the attachment, was notified to appear at the hearing on the allowance of the amendment, by an order of notice obtained by the plaintiff. The bonding company duly appealed from this interlocutory decree allowing the amendment, but took no appeal from the final decree within the time limited therefor. Thereafter, the bonding company filed a petition before the full court, for leave to appeal late from the final decree of the Superior Court, which petition was granted, provided the appeal was entered in the Supreme Judicial Court before December 30, 1924. The bonding company appealed from the final decree, and the appeal was entered in accordance with an order of the Supreme Judicial Court.

[1] The plaintiff contends that the appeal is not before us; that there could be no appeal from a final decree entered in accordance with a rescript of the full court, and that the appeal from the interlocutory decree does not bring the case to this court. By G. L. c. 231, § 138, the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action, but no person other than the parties to the record 3. Appeal and error 1201 (6)-Amendment are to be bound by such allowance, unless of declaration in accordance with rescript of notified of the application for leave to Supreme Court after notice to surety on de-amend, and he has an opportunity to be fendant's bond held binding on surety.

Under G. L. c. 231, § 51, court may permit amendment to enable plaintiff to sustain cause of action intended to be sued upon at any time before final judgment.

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heard thereon; "and such third parties shall have the right of exception or appeal." The appeal from the interlocutory decree was seasonably filed. We need not discuss the question whether such an appeal, by itself, will lie to this court. See G. L. c. 214, § 26. Macurda v. Fuller, 225 Mass. 341, 114 N. E. 366; Sciola's Case, 236 Mass. 407, 415, 128 N. E. 666. By G. L. c, 214, § 28, a party who by accident or mistake has omitted to claim an appeal from a final decree within the time prescribed, may, within one year after the entry of the decree from which he desires to appeal, petition the full court for leave to appeal, which may be granted upon terms. The bonding company petitioned under this statute, and its petition was granted. The company having appealed from the interlocutory decree, and its petition to enter an appeal late having been granted by the full court, the case is properly before us and the question whether the bonding company is bound by the allowance of the motion amending the bill of complaint can be considered. See McFeely v. Scott, 128 Mass. 16.

[2, 3] The opinion in Weinstein v. Miller, supra, at page 522, 144 N. E. 389, states that "the plaintiffs are given leave to amend with

(146 N.E.)

M. E. Bernkopf and S. D. Weissbuch, both of Boston, for plaintiff.

Edwin H. Abbot, Jr., of Boston, for defendant.

in thirty days after rescript by setting out Action of contract by the I. Wit Realty the modified contract." The court may, at Company against the G. F. Redmond & Comany time before final judgment, allow amend-pany, Inc., to recover rent. On report from ments to enable the plaintiff to sustain the superior court. Judgment for plaintiff. action for the cause for which it was intended to be brought. G. L. c. 231, § 51. For the application of this statute to suits in equity, see King v. Howes, 181 Mass. 445, 63 N. E. • 1062. The amendment did not affect the amount for which the surety was liable. The case apparently was tried on the modified RUGG, C. J. The question in this case is contract and the surety was not harmed by whether a covenant to heat premises dethe allowance of the amendment setting up mised under a written lease can be implied. the modification of the contract. The amend- There was evidence tending to show that the lessor leased to the defendant by a ment was in a matter of pleading or procedure. The surety was notified before the al-written lease two rooms on the second floor lowance of the amendment was made. Sav-of a three-story building on Central street in age v. Welch, 246 Mass. 170, 140 N. E. 787. Lowell. On the first floor were stores and In that case, at page 182, 140 N. E. 791, it was said:

"The circumstances were such at the time this motion to file a substitute declaration was allowed that, if the case had come before this court, it would have been competent for us to order any amendment made in the pleadings to meet the case made by the evidence."

a stairway leading from the ground floor to the second. The third floor was formerly occupied as a recruiting station. The demised premises, used for conducting a brokerage business, were at the extreme right side of the second floor, a front room being occupied as a board room and a back room as a private office for the manager. There was one radiator in each of the two rooms, con

The amendment was merely to put in prop-nected with pipes. The heating apparatus

er form the statement of the cause upon which the suit was brought, and the surety was bound by the ruling of the court. King v. Howes, supra; Morton v. Shaw, 190 Mass. 554, 77 N. E. 633. The case is governed by Driscoll v. Holt, 170 Mass. 262, 49 N. E. 309, Morton v. Shaw, supra, and Savage v. Welch, supra. See Martell v. Dorey, 235 Mass. 35, 39, 40, 126 N. E. 354; Holmes v. Carraher,

249 Mass.

146 N. E. 900. In Curnow v.

Goodman, 244 Mass. 265, 138 N. E. 379, the amendment was allowed without notice to the sureties of the plaintiff's application for leave to amend; while in the case at bar, the surety was notified of the hearing on the proposed amendment and had an opportunity to be heard. G. L. c. 231, § 138. There was no error of law in allowing the

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was in the cellar of the building. The rooms were not adequately heated. There were electric fixtures on the premises, whereby electric heaters might have been installed. The attorney for the defendant said to the lessor that the defendant's manager was "complaining about the lack of heat in the premises, that it could not be used for a brokerage office and asked what the lessor was going to do about it"; the lessor replied, "We are doing the best we can; we can't do any better." The lessor testified that he did not run the heater or have anything to do with it, but attention was given to it by the occupant of the first floor, who agreed, in consideration of his lease, to heat the entire defendant. The tenant of the first floor testibuilding including the rooms demised to the fied that he operated the heating plant for the building and never received any complaints for lack of heat.

There was not evidence sufficient to warrant a finding of an implied covenant on the part of the landlord to heat the demised premises. The parties entered into an elab

I. WIT REALTY CO. v. G. F. REDMOND orate lease in writing. Its natural im

& CO., Inc.

(Supreme Judicial Court of Massachusetts.

Suffolk. Feb. 27, 1925.)

plication is that the parties embodied in that formal instrument the terms of their contract. Deban v. Snider, 249 Mass. 59, 144 N. E. 69. It contains nothing about heat. It does not appear that there was any conversation on the subject as preliminary to the execution of the lease. There was no evidence of a prevailing custom in Lowell on this point. The mere presence of the radiators in the rooms did not warrant the Report from Superior Court, Suffolk Coun- implication of a covenant to heat. It is not ty; John D. McLaughlin, Judge. unusual for parties to make a special con

Landlord and tenant 48(1)-Evidence held insufficient to establish implied covenant in written lease to heat demised premises. Evidence held insufficient to establish implied covenant in written lease to heat demised premises.

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

Key-No. Series-Decree requiring payment of compensation in accordance with agreement held erroneous, in view of prior order recommitting matter to Industrial Board. Decree of judge of probate court for pay

tract respecting heat when there are radia-14. Master and servant 4162, New, vol. 11A tors in the demised premises. The evidence was to the effect that this heating plant was in the management and control of another tenant. If this evidence was discredited, there was nothing to show that the lessor had control or management of it. The les-ments in accordance with compensation agreement between employee and insurer, made while sor may have intended to relieve himself prior order by another judge of that court reentirely of responsibility as to heating by committing the matter to Industrial Board re- • omitting all reference to the subject from mained unrevoked or unvacated, held erronehis lease to the defendant, and putting the ous. obligation entirely upon another tenant.

That is one rational inference from the facts. The conversation of the lessor in reply to a complaint as to heat was equivocal and not an admission of obligation.

The case at bar is distinguishable from decisions like Jackson v. Paterno, 128 App. Div. 474, 112 N. Y. S. 924, Berlinger v. MacDonald, 149 App. Div. 5, 133 N. Y. S. 522, and O'Hanlon v. Grubb, 38 App. D. C. 251, 37 L. R. A. (N. S.) 1213, where there appear to have been no other reasonable means of heating the premises except from a central heating plant in the control and management of the lessor connected directly with radiators in the rooms of the lessee used for a home.

In accordance with the terms of the report, judgment is to be entered for the plaintiff in accordance with its declaration. So ordered.

MCCRACKEN'S CASE.

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

1. Appeal and error 66-Appeal from interlocutory matter cannot be entered in Supreme Judicial Court, except by report of judge, until there is a final decree.

Appeal from interlocutory matter cannot be entered in Supreme Judicial Court, except by report of judge, until there is a final decree. 2. Master and servant 416-Order of su

perior court remitting matter to Industrial

Board held error.

In proceeding in superior court under Workmen's Compensation Act, § 11, for a decree and execution in accordance with prior agreement, made under section 7, order of court remitting matter to Industrial Board to determine whether it was a compensable case held erroneous; insurer's liability being established by agreement, in absence of fraud or mistake.

3. Judgment 660-Order, though erroneous,

"law of the case" until reversed.

Error of law in making decision by judge is not excess or lack of jurisdiction, and order, though erroneous, is "law of the case," and binding on parties till vacated or reversed. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Law of the Case.]

Appeal from Superior Court, Suffolk County; McLaughlin, Judge.

Proceeding under Workmen's Compensation Act by Lloyd McCracken against the H. J. Heinz Company, employer, and the Ætna Life Insurance Company, insurer. From an order of the superior court, requiring payment of compensation in accordance with prior agreement between employee and insurer, the insurer appeals. Final decree and order of superior court, recommitting case to Board, reversed, with direction that the case stand for further hearing on question of form of decree to be entered.

L. J. MacNab, of Boston, for insurer.
S. B. Horovitz, of Boston, for claimant.

RUGG, C. J. This is a case under the Workmen's Compensation Act, G. L. c. 152. The employee and the insurer entered into an agreement as to compensation for a described injury sustained by the former in his employment, whereby the insurer undertook to pay the employee a stipulated amount weekly. The agreement related to an accident occurring on July 18, 1923, was dated September 25, 1923 and was approved by the board on June 12, 1924. All this was in con. formity to section 7 of the act. On July 10, 1924, the employee filed in the superior court a petition under section 11 of the act for a decree and execution in accordance with the agreement, setting out that payment had been discontinued by the insurer since June 17, 1924, without justification. On July 30, 1924, the insurer filed in the superior court a motion that the matter be recommitted to the Industrial Accident Board for a hearing on the merits, to determine whether it was a compensable case and whether the employee was entitled to compensation under the act. The motion called attention to the fact that there had never been a hearing and a finding by the board on the evidence. The prayer of the petition and the order of the matter be recommitted to the board for a court entered the same day was that the hearing on the merits. On August 5, 1924, the employee appealed from this order.

[1] In the meanwhile, on July 10, 1924, a member of the Industrial Accident Board apI pointed under section 10 of the act held a

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