tract respecting heat when there are radia-14. Master and servant On4161/2, New, vol. IIA tors in the demised premises. The evidence Key-No, Series-Decree requiring payment of was to the effect that this heating plant was

compensation in accordance with agreement in the management and control of another

held erroneous, in view of prior order retenant. If this evidence was discredited,

committing matter to Industrial Board.

Decree of judge of probate court for pay. there was nothing to show that the lessor

ments in accordance with compensation agreehad control or management of it. The les- ment 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 reomitting 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. Appeal from Superior. Court, Suffolk CounThe conversation of the lessor in reply to a ty; McLaughlin, Judge. complaint as to heat was equivocal and not

Proceeding under Workmen's Compensation an admission of obligation.

Act by Lloyd McCracken against the H. J. The case at bar is distinguishable from Heinz Company, employer, and the Ætna decisions like Jackson v. Paterno, 128 App. Life Insurance Company, insurer. From an Div. 474, 112 N. Y. S. 924, Berlinger v. Mac-order of the superior court, requiring pagDonald, 149 App. Div. 5, 133 N. Y. S. 522, ment of compensation in accordance with and O'Hanlon v. Grubb, 38 App. D. C. 251, 37 prior agreement between employee and insurL. R. A. (N. S.) 1213, where there appear er, the insurer appeals. Final decree and orto have been no other reasonable means of der of superior court, recommitting case to heating the premises except from a central Board, reversed, with direction that the case heating plant in the control and management stand for further hearing on question of of the lessor connected directly with radia- form of decree to be entered. tors in the rooms of the lessee used for a home.

L. J. MacNab, of Boston, for insurer. In accordance with the terms of the re S. B. Horovitz, of Boston, for claimant. port, judgment is to be entered for the plaintiff in accordance with its declaration.

RUGG, O. J. This is a case under the So ordered.

Workmen's Compensation Act, G. L C. 152. The employee and the insurer entered into an agreement as to compensation for a de

scribed injury sustained by the former in his McCRACKEN'S CASE.

employment, whereby the insurer undertook (Supreme Judicial Court of Massachusetts.

to pay the employee a stipulated amount Suffolk. Feb. 27, 1925.)

weekly. The agreement related to an acci.

dent occurring on July 18, 1923, was dated 1. Appeal and error Cw66–Appeal from in- September 25, 1923 and was approved by the

terlocutory matter cannot be entered in Su. board on June 12, 1924. All this was in con: preme Judicial Court, except by report of judge, until there is a final decree.

formity to section 7 of the act. On July 10, Appeal from interlocutory matter cannot be 1924, the employee filed in the superior court entered in Supreme Judicial Court, except by a petition under section 11 of the act for a report of judge, until there is a final decree. decree and execution in accordance with the 2. Master and servant 416-Order of su. agreement, setting out that payment bad perior court remitting matter to Industrial been discontinued by the insurer since June Board held error.

17, 1924, without justification. On July 30, In proceeding in superior court under 1924, the insurer filed in the superior court Workmen's Compensation Act, $ 11, for a de- a motion that the matter be recommitted to cree and execution in accordance with prior the Industrial Accident Board for a hearing agreement, made under section 7, order of on the merits, to determine whether it was court remitting matter to Industrial Board to

a compensable case and whether the em. determine whether it was a compensable case ployee was entitled to compensation under held erroneous; insurer's liability being estab- I the act. The motion called attention to the lished by agreement, in absence of fraud or mistake.

fact that there had never been a hearing and

a finding by the board on the evidence. The 3. Judgment w 660-Order, though erroneous, “law of the case" until reversed.

prayer of the petition and the order of the

court entered the same day was that the Error of law in making decision by judge matter be recommitted to the board for a is not excess or lack of jurisdiction, and order, though erroneous, is "law of the case,”

► hearing on the merits. On August 5, 1924, and binding on parties till vacated or reversed. the employee appealed from this order.

[Ed. Note.--For other definitions, see Words [1] In the meanwhile, on July 10, 1924, a and Phrases, First and Second Series, Law of member of the Industrial Accident Board apthe Case.]

pointed under section 10 of the act held a OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) hearing. The employee made a motion that 1, 8, 140 N. E. 294, and cases there collected. the board member dismiss the case for want The order recommitting the case to the board of jurisdiction, because (1) the matter was for a hearing on its merits, although contrary pending before the superior court on petition to the correct interpretation of the act as ex. for the issuance of a decree in conformity pounded in Kareske's Case, neverthless was to the agreement for compensation approved a valid order because within the jurisdiction by the board; and (2) the only question open of the superior court. It was binding upon for consideration at that time was whether the parties. It was the law of the case. It the employee was incapacitated for work as stood until vacated or reversed. a result of the injury. That motion was [4] The filing by the employee of the peti. granted. Manifestly that hearing was not tion on September 22, 1924, was manifestly in compliance with the order of the superior wrong. That petition showed on its face that court of July 30, 1924. The decision of the that very matter already had been adjudisingle member, granting the motion of the cated by one judge of the superior court by employee, appears to have been filed on Sep- ordering the case recommitted to the board tember 22, 1924, which was after the order for further hearing. It would be most unof the superior court recommitting the mat- seemly for one judge to enter a decree diater to the board. That decision does not metrically opposed to a previous order en. appear on this record to have been based on tered in the same case on the same matter the notion that the employee's appeal from by one of his colleagues and not revoked or that order suspended its operation, although vacated. Presumably the final decree must allegation to that effect was in the petition have been founded on the idea that that preof September 22, 1924, to which reference vious order was pending in this court on appresently will be made. That order was in peal. But whatever may have been the reathe nature of an interlocutory decree, which son, a final decree could not rightly have been took effect and was binding on the parties entered while the previous order recommitand on the board notwithstanding an appeal ting the case to the board stood unrevoked. to this court. Such an appeal from an inter- There was nothing rightly before the judge locutory matter cannot be entered in this for action at the time the final decree was court, except by report of the judge, until entered. The case was not ripe for final there is a final decree. Hutchins v. Nicker- decree. son, 212 Mass. 118, 120, 98 N. E. 791; Chur- The final decree is reversed. The order of chill v. Churchill, 239 Mass. 443, 445, 132 N. July 30, 1924, recommitting the case to the E. 185; Weil v. Boston Elevated Railway, board is reversed. The case is to stand for 216 Mass. 545, 104 N. E. 343.

further hearing on the question of the form On September 22, 1924, the employee filed of decree to be entered. Unless other maa petition in the superior court setting forth terial factors have intervened, a final dethe proceedings which we have narrated and cree ought to be entered enforcing the terms praying for a decree for payments to be made of the agreement between the employee and in accordance with the original agreement the insurer of September 25, 1923. between the parties. Final decree was en- So ordered. tered in accordance with that petition on October 1, 1924. The insurer appealed from that decree. [2, 3] The order of the superior court re

NEW YORK, N. H. & H. R. CO. V. PREFERcommitting the case to the board for a hear

RED UNDERWRITERS, Inc., et al. ing on the merits was within the jurisdiction (Supreme Judicial Court of Massachusetts. of that court. The only way an agreement of

Suffolk. March 2, 1925.) the parties or a decision of the board as to compensation can be enforced is by a pro- !. Evidence Omw433(9) -Parol testimony and ceeding in the superior court. With respect

draft copy of agreement held improperly ad

mitted to show particular language of agreeto such proceeding the jurisdiction of that

ment inadvertently used. court is complete. That order was errone

In action on note given pursuant to agreeous in law. When parties have entered into

ment for sale of land, parol testimony and origan agreement under the act and such agree- inal draft copy of such agreement held erronement has been approved by the board, fur- ously admitted for purpose of showing that ther inquiry as to the merits of the liability word "unable” had been inadvertently used in of the insurer is at an end, in the absence of place of "able.” fraud or mistake. That was settled by Kar

2. Evidence Om433(9)-Suit for reformation eske's Case, 250 Mass. ~ 145 N. E. 301, de

proper remedy for correction of instrument cided several months after the entry of that wherein particular word was inadvertently order of the superior court in the case at bar. used. An error of law in making a decision by a Suit in equity to reform instrument held judge is not excess or lack of jurisdiction. proper remedy to correct erroneous use thereGoulis v. Judge of District Court, 246 Mass. I in of word “unable" in place of “able," and re

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

sort to parol evidence in action at law involv- , 500; that the original note for $24,500 ing such instrument was not permissible. is the note referred to in paragraph 2 of the 3. Vendor and purchaser em 46–Word "un defendants' answer and in "paragraph 2 and

able” held obviously used mistakenly for elsewhere of an agreement dated March 13, word "able" in contract for purchase of land. 1922,” between the plaintiff and the Prefer

Where written agreement for sale of land red Underwriters, Inc.; that the note now in one place specified rights of parties in event sued upon was indorsed by the defendant seller was unable to convey good title, and in Averill, and received and accepted by the later provision, which commenced, “If, how- plaintiff under the same terms and condiever," "provided for inconsistent result if seller tions as the original note, which was given was "unable" to convey title, and purchaser failed to comply therewith, held, that "unable" solely under the terms and conditions, so far was obviously used for "able”' in such later as applicable, of the agreement of March 13,

1922; and that the defendant, as the plainprovision.

tiff knew at the time the note in suit was Exceptions from Superior Court, Suffolk given to it, indorsed the note for the accomCounty; G. A. Flynn, Judge.

modation of said Preferred Underwriters,

Inc. Action of contract on promissory note by

Before the execution of the agreement of the New York, New Haven & Hartford Rail- March 13, 1922, the plaintiff had signed, acroad Company against the Preferred Under- knowledged and delivered in escrow to the writers, Incorporated, and others, wherein State Street Trust Company a deed of cerdefendant Charles S. Averill alone appeared tain land in Boston. At the request of the to defend. On defendant Averill's exceptions Underwriters the deed of the plaintiff, as to finding of court for plaintiff, refusal to grantor, ran to the The Bostonian, Inc., as make requested rulings of law, and to re- grantee, and was to be held and disposed of ceipt of certain evidence. Exceptions over

by the State Street Trust Company in acruled.

cordance with the conditions enumerated in C. F. Choate, 3d, of Boston (R. Proctor, the agreement; that is, in substance, the of Boston, on the brief), for plaintiff.

plaintiff agreed to sell and the Underwriters G. E. Mears, of Boston, for defendant Av- agreed to pay as the purchase price of the erill.

land $1,505,008; the sum of $10,000 previ.

ously paid was to be credited as a payment PIERCE, J. This is an action of contract on the purchase price “provided the terms of in three counts upon a promissory note for [the] agreement (were] fully performed by $12,500, dated May 15, 1922, payable to the said Underwriters”; $25,000 was to be paid plaintiff with interest in 15 days from its to and received by the plaintiff on the execudate. The first count is against all the de- tion of the agreement, in a certified check fendants, the second against the Preferred for $500, in a note of $24,500 of The BostonUnderwriters, Inc., as maker, and the third ian, Inc., dated March 8, 1922, payable in against the indorsers, of whom the defend- fifteen days and indorsed by Preferred Unant Charles S. Averill was one. The defend- derwriters, Ins., C. S. Averill, M. B. Hayes, ant Averill alone appeared to defend the ac- and William H. Sellers; $715,000 in cash or tion, and set up in answer a general denial

a certified check to be paid on or before May and also the terms of an agreement, dated 15, 1922, and the balance by promissory note March 13, 1922, of which he was to have the of "The Bostonian, Inc.," secured by mortbenefit and which, he contended, discharged gage on the premises, payable on or before him from liability. The judge of the superior July 15, 1922. May 15, 1922, was the time court before whom the action was tried fixed for the delivery of the deed at the reg. found for the plaintiff, and the case comes istry of deeds to The Bostonian, Inc., proto this court upon the defendant Averill's ex- vided the title to the premises was free from ceptions to this finding, to the court's refusal all incumbrances except such as are set forth to make certain rulings of law requested by in the deed, the taxes as of April 1, 1922, and him, and to the admission of certain evi- such incumbrances as may be specifically dence.

waived by the Underwriters. The agreement By agreement of counsel the judge found further provided if the payments were made that the plaintiff is the holder of the note; in full the plaintiff would pay the underwritthat due presentment, demand and notice ers interest on $10,000 from December 28, were made upon and given to the defendant; 1921, to the date of the delivery of the deed, and that the note has never been paid. He and interest on the $25,000 from March 23, further found that the note for $12,500 is the 1922, to the date of the delivery of the deed. last of several notes which had been given It further provided that the deed and mort. in part payment on an original note for $24,- gage may be delivered and the consideration 500, dated March 8, 1992, which by successive paid at any time prior to May 15, 1922, upou payments of cash had been reduced which the parties may agree. May 15, 1922, to the said of $12, The controversy in the case turns upon



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

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(146 N.E.) the use of the word "unable" in the tenth At this point in the examination of the line of the second paragraph of Article VI vice president, "the defendants admitted that of the agreement of March 13, 1922, as print- the railroad company was able to transfer ed in the record. Article VI reads as fol- the property and the Preferred Underwritlows:

ers were unable." The vice president then “In case said Underwriters shall not comply testified, in substance, that the plaintiff had with the terms and conditions set forth in an optional agreement drawn, which draft, articles II and III thereof, then said deed shall with certain changes in dates, was recopied be delivered by said trust company to said by a stenographer in his office with the rerailroad company, and thereafter none of the sult that the word "able” near the end of parties hereto, including said trust company, the draft, without the knowledge of the parshall be under any further liability on account ties to the agreement became "unable" in the of this agreement except as hereinafter set forth.


agreement executed March 13, 1922. "If the railroad company shall be unable to draft given the stenographer to copy into the convey said title free from all incumbrances final agreement was then offered and receivexcept as that set forth, said railroad com- ed in evidence, subject to the exception of pany shall, on the redelivery of said deed, to the defendants. wit, by said trust company pay to said Under- [1, 2] The testimony of the vice president writers the sum of $10,000 heretofore paid to of the plaintiff, the testimony of the presi. the railroad company and referred to in para-dent of the Preferred Underwriters, Inc., and graph 2 hereof, and the said sum of $25,000 the draft copy of the agreement of Decempaid to said railroad company at or prior to

ber 28, 1921, were received in evidence the execution of this agreement, it being understood that this agreement in so far as it wrongly. In the absence of an obvious misrefers to said $25,000 is contingent upon said take, a plaintiff in an action at law cannot note for $24,500 above mentioned having been correct by parol evidence substantial errors paid. If, however, the said railroad company in the terms of a written instrument to which shall be unable to convey a title as above pro- he and the defendants are directly or medialvided, and said Underwriters shall fail to com- | ly parties, the remedy of parties so situatply with each and every condition to be by them ed being in a court of equity for reformacomplied with hereunder, said railroad company tion of the instrument. Capedy v. March, may retain said $10,000 and said $25,000 as

13 consideration for entering into this agreement.

Gray, 373; Sawyer v. Hovey, 3 Allen, “The acceptance of the deed by said The 331, 81 Am. Dec. 659; Page v. Higgins, 150 Bostonian, Inc., shall be conclusive of the per- Mass. 27, 22 N. E. 63, 5 L. R. A. 152; Comformance by said railroad company of the terms mercial Savings Bank of Washington v. Coltof this agreement."

hurst, 195 Iowa, 1032, 188 N. W. 814, 191 N.

W. 787; Minneapolis, St. Paul & Sault Ste. Subject to the exception of the defendant Marie Railway v. Home Ins. Co., 55 Minn. the judge admitted in evidence the testi- 236, 242, 56 N. W. 815, 22 L. R. 4. 390. mony of the vice president of the plaintiff

[3] Without resort to evidence outside the and the testimony of the president of the agreement the same result must follow from Preferred Underwriters, Inc., to the effect an examination and analysis of the agreethat the plaintiff and the underwriters had ment itself. Williston on Contracts, $ 619; previously executed several agreements for Pacific Surety Co. v. Toye, 224 Mass. 98, 112 the purchase and sale of the land covered by N. E. 653; Morgan v. Thomas, 9 Q. B. D. the agreement of March 13, 1922, the one last 643, 646. The first paragraph of article VI prior being dated December 28, 1921; that and the first sentence of the second parait was the intention of the parties to the graph of that article are declarations of agreement dated March 13, 1922, that it what shall be the legal effect upon the rights should follow the general terms of the agree of the parties, in case the Underwriters shall ment dated December 28, 1921, and that the not comply with the terms and conditions of last named agreement contained a provision articles II and III of the agreement, or in which reads as follows:

case the railroad company shall be unable to "If the railroad company shall be unable to convey the title free from all incumbrances. convey said title free from all incumbrances The second sentence of the second paragraph except as above set forth, said railroad com- of the article, beginning with the words "If, pany shall on the redelivery of said deed to it however," provides a result if the railroad by said trust company pay to said Underwriters company shall be unable to convey a title the sum of ten thousand dollars ($10,000) paid in the manner provided in the first sentence to said railroad company upon the execution of the same paragraph, which is inconsistent of this agreement, but if said railroad company with and hostile to the consequence of such shall be able to convey a title as above provid- action determined in the first sentence. It ed, and said Underwriters shall fail to comply with each and every condition to be by them is plain the second sentence was intended to complied with hereunder, said railroad company provide for a situation which was not fully may retain said ten thousand dollars ($10,- covered by the first paragraph, and by the 900) as consideration for entering into this first sentence of the second paragraph, and egreement."

that the second sentence covers such defi

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ciency if the word "unable” was mistakenly ; ter from plaintiff to his broker held not er. used for the word "able."

ror, in absence of showing that letter was ever It results that the exceptions must be over- mailed in ordinary course. ruled.

Exceptions from Superior Court, Bristol So ordered.

County; Lummus, Judge.

Action of contract by W. R. Grace & Co.

against the National Wholesale Grocery W. R. GRACE & CO. v. NATIONAL Company to recover damages for breach of WHOLESALE GROCERY CO.

contract for purchase of sugar.

Case re(Supreme Judicial Court of Massachusetts. ferred to auditor, who found for defendant. Bristol. Feb. 27, 1925.)

On plaintiff's appeal and exceptions. Appeal

dismissed, and exceptions overruled. 1. Reference 101(3)--Motion to recommit is proper method to question correctness of

Wood & Brayton, of Fall River, and Donauditor's rulings on evidence, though other. ald Havens, of New York City, for plaintiff. wise motion is addressed to sound judicial D. R. Radovsky, H. W. Radovsky, and I. discretion.

H. Simon, all of Fall River, for defendant. Motion to recommit 'auditor's report is proper method of raising question as to cor- RUGG, C. J. This is an action of contract rectness of rulings on evidence, where auditor's to recover damages for breach of contract in findings of fact are final, though in all other refusing to take and pay for sugar. The respects such motion is addressed to sound parties entered into a contract in writing judicial discretion.

whereby the plaintiff sold and the defendant 2. Evidence Om 460(11) - Where contract is bought about eighty , tons of "Brazilian

ambiguous as to article sold or quality there washed sugar,” to be shipped from Brazil. of parol evidence affecting such matter is the defendant refused to accept the sugar admissible.

tendered by the plaintiff in performance of Where designation of article sold or qual, the contract. The case was referred to an ity is insufficient to identify such article, or auditor “to hear the parties and their evi. enable one to determine what would be prop-dence and report his findings to the court, er fulfillment of contract, parol testimony is and his findings of fact shall be final.” Moadmissible to clear up such ambiguity.

tion to recommit the auditor's report was de3. Evidence Cw460(11) - Evidence of sample nied. The report was confirmed and judg

used by plaintiff's broker in selling sugar, ment entered in favor of the defendant. and representations made by him, held admis

[1] Motion to recommit the report is a sible in action for purchaser's breach of contract.

proper method to raise question as to the In action for damages for breach of con

correctness of rulings concerning the admistract for purchase of "Brazilian washed sugar,"

sion or exclusion of evidence where the auwhere auditor correctly found that such de- ditor's findings of fact are final. Tripp v. scription was insufficient, without more, to Macomber, 187 Mass. 109, 72 N. E. 361; Petidentify article sold, held, evidence of sample tey v. Benoit, 193 Mass. 233, 79 N. E. 245. used by plaintiff's broker and his representa- In all other respects such a motion is adtions concerning it at time of making contract dressed to sound judicial discretion.

Ran. were properly admitted.

dall v. Peerless Motor Car Co., 212 Mass. 4. Sales 440(3)–Evidence that sugar ten- 332, 370, 372, 99 N. E. 221.

dered in fulfillment of contract was unfit for The auditor found that the defendant was wholesale business held admissible in action justified in rejecting the sugar on two sepfor breach of contract.

arate and distinct grounds: (1) That the In action for damages for purchaser's plaintiff tendered an amount of sugar in ex. breach of contract for sugar, evidence that sugar tendered was unfit for wholesale grocery the quality of the sugar offered for delivery

cess of the quantity ordered; and (2) that business held properly admitted, under G. L. C. 106, § 17(2), creating implied warranty.

was not in conformity with the contract. In 5. Sales w273(2)—Where goods purchased in sider only the questions of law touching the

our view of the case, it is necessary to conreliance on seller's judgment, there is implied

second ground. warranty of fitness for purpose intended.

The finding of the auditor was that the tesWhere manufacturer or dealer sells goods for particular purpose under circumstances

timony did not convince him that Brazilian such that buyer necessarily trusts in judgment washed sugar is a descriptive term, sufficient or skill of seller, there is an implied warranty without more to identify the article sold. that goods sold are reasonably fit for purpose The recitals of evidence in the report adeintended.

quately show such diversity of testimony as 6. Evidence C 182—Exclusion of copy of let. to warrant that conclusion and to support

ter, not shown to have been mailed in ordi- the further finding that: nary course, held not error.

“Brazilian washed sugar is not such an artiIn seller's action for breach of contract to cle as would be known or recognized by that purchase sugar, exclusion of office copy of let- | description merely, so as to enable one to de

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

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