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“the balance of the purchase price” of $110, $84,000 of bonds recently owned and held by 000, to wit, the sum of $10,000 "less the afore Morrell, provides for three contingencies, said costs and expenses,” to Tennis. Fur namely (1) the acquisition of the bonds and ther, if by private purchase any bonds not allied stocks by the defendants before forecovered by the agreement are bought "at closure; (2) the defendants becoming the less than forty (40) cents on the dollar for purchasers at "said” foreclosure sale; anil the said bonds, including with the aforesaid (3) a covenant to bid $100,000"at the said eighty-four thousand dollars ($84,000) of foreclosure sale." Morrell bonds the stocks of the allied com The plaintiff's argument is in substance panies,” by Tennis or the defendants, the that although the defendants have not in saving shall be divided between them.

terms so agreed, they are to be held as matThe rest of the fourth article is in these ter of construction to have covenanted that words: “If, however, all of the said two one of these three contingencies should take hundred and fifty thousand dollars ($250,- | place. 000) of bonds and stocks of allied companies Their first argument in support of this should not be acquired by the parties of the ccntention is that the $110,000 was to pay for second part before the said foreclosure sale

the securities named (all the bonds and the and said sale takes place and at the said sale

capital stock of all four companies) or what the property is purchased by the parties of

is the same thing the property which the the second part, or in their interest, the

defendants could get by foreclosing the mortnecessary costs and expenses as aforesaid

gage. The facts dispose of that argument. shall be first deducted out of the aforesaid

The foreclosure would not have given the sum of ten thousand dollars ($10,000) and

property or property rights which the stock the balance thereof, less the costs and ex

of the turnpike company, the stock of steam penses as above provided, shall be paid over

railroad company, and the stock of the horse to the said Tennis or to his attorney. This

railway company would have given. A forewill leave in the hands of the said parties

closure of the mortgage would not have given of the second part, out of the aforesaid

a purchaser the power of dealing with the agreed price of one hundred and ten thou

"gap" which ownership in the stock of the sand dollars ($110,000) a sum equal to forty

steam railroad gave. Apparently it would per cent. (40 per cent.) of the par value of

not have given any right of way at any the bonds not acquired by the parties of the

point; for Tennis testified that "the Philadelsecond part, which said sum shall be used to

phia & Bristol Passenger Railway Company pay the pro rata shares of the purchase

simply had a contract" with the turnpike price at said sale to which the holders of

company; "that the Philadelphia & Bristol the outstanding bonds may be entitled. If

Passenger Railway Company only had the at the said foreclosure sale the property is

right of way to build from the turnpike compurchased by the parties of the second part

pany, and never made any claim to include or in their interest, at a figure which will

that in its mortgage.” Lastly, not only would yield less than forty (40) cents on the dol

it not give the right to operate the 314 miles lar to the outstanding bonds, and a part of

north of the gap which the horse railway the agreed price of one hundred and ten

had, but apparently it was a question wheth($110,000) is thereby saved, the amount of

er the foreclosure would give to the pursaid saving shall be equally divided between

chaser any right to these 314 miles of track. the parties of the second part and the said

Fell, who bought Mr. Morrell's holdings, tesTennis excepting only the saving on the

tified “that no property described in that twelve thousand dollars ($12,000) of bonds

1:ortgage is located on that part of the right which appear to have been lost. The total

of way between a point three-quarters of a amount of saving on the said twelve thousand

mile north of Neshaminy creek in [and] Brisdollars ($12,000) of bonds shall be paid

tol.” Neshaminy creek was the beginning of over to the said Tennis. At the said fore

the "gap.” There evidently has been a misclosure sale the parties of the second part

take in transcribing this testimony. But agree to buy in the property at the smallest

Tennis' attorney wrote to the defendant price possible, and further agree that they

Shaw on November 5, 1900: "You have had will not allow any other bidder to buy in the

an independent opinion from Messrs. Alexsame at less than one hundred thousand

ander and Magill advising you that the mortdollars (100,000).”

gage is a valid lien upon the Bristol end of The fifth article is as follows: "All op

the line and I feel quite sure that this is the tions, understandings and agreements be

case, although it may take some litigation between the parties hereto, so far as they con

fore the question is finally determined." flict herewith, are of no further force and

We assume that this refers to the matter teseffect."

tified to by Fell, and that the word "in" We now come to the construction of this

was a misprint for "and." written contract and particularly of the The plaintiff's next argument is (1) that fourth paragraph. That paragraph after the parties were to share in any saving on providing that $110.000 shall be the agreed the price of 40 cents on a dollar for the bonds, price for all outstanding bonds "and the if there was a saving on that price by the stocks of the allied companies held” with the defendants getting the property at "said"

78 N.E.-8

for eclosure; and (2) that if the defendants' nis to sell his 126 bonds for 40 cents on th: construction had been the intention of the dollar without procuring an obligation from parties to the contract of August 13, they the defendants to do one of three things. would have restricted the clause as to bid namely, (1) buy in the outstanding bonds ding $100,000 on foreclosure to "a sale held and allied stocks, or (2) foreclose the mortin their interest” in place of “at said foreclo gage, or (3) bid $100,000 if some one else sure sale."

fcreclosed it, we have no means of knowing Dealing first with the argument based on beyond reading the contract which the parthe terms of the agreement as to Tennis and ties signed in the light of the circumstances the defendants sharing equally in the sav under which it was made. We find no ing (if there turned out to be a saving) in words putting on the defendants an obligathe price of 40 cents on the dollar for the tion to do one of these things unless it be bonds by foreclosing the mortgage: The in case of the third of the three alternatives, first paragraph of article four had made it If we construe "at the said foreclosure sale" plain that the $110,000 was the “agreed to mean "at any foreclosure sale," there price" not of the bonds alone but of the was an obligation on the defendant to bid 250 bonds "and the stocks of allied com at the foreclosure sale which took place. panies held with the eighty-four thousand But even then there is nothing which can dollars ($84,000) of said bonds which were be construed to impose on the defendants recently owned and held by Edward Morrell." the two other alternatives. And in the second paragraph of article four It is hard to see why the third article (providing for sharing in a similar saying should have stated that the mortgage "may on the price of 40 cents on the dollar for the be foreclosed when the parties of the second bonds, if they were all of them bought and part may elect” if it was intended that by some of them directly from the holders in executing the contract the parties of the place of being deposited under the agree second part should come under an obligament), the provision is "at less than forty tion to the plaintiff to foreclose it or to bid (40) cents on the dollar for the said bonds if someone else foreclosed it. And so of ircluding with the aforesaid eighty-four the insertion of the words "and said sale thousand dollars ($84,000) of Morrell bonds takes place,” in the beginning of the last the stocks of the allied companies." By a paragraph of the fourth article, namely, “If, foreclosure the defendants would not get however, all of the said two hundred and thiese allied stocks. It seems to have been fifty thousand dollars ($250,000) of bonds assumed that unless they got the allied stocks and stocks of allied companies should not be the defendants would not foreclose; in other acquired by the parties of the second part words to have been assumed that the Morrell before the said foreclosure sale and said bonds were not to be wiped out by the fore sale takes place and at the said sale the closure; there was to be no foreclosure un property is purchased by the parties of the less the Morrell bonds and allied stocks second part, or in their interest." were bought; and the saving made by a fore On the contrary the language of the conclosure on the price of 40 cents on the dollar tract througbout is not only consistent but for bonds could not apply to the Morrell it recognizes that the foreclosure of the bonds. It is for these reasons (in our opin- | mortgage at the instance of the defendants ion) that the contract in this connection was is not compulsory. put in the words in which we find it.

Reading the contract in the light of the The words "at said foreclosure sale" relied circumstances under which it was made we on by the plaintiff in his argument are not are of opinion that it must be construed to altogether explicit, but it is hard to see what be a sale of the 126 bonds for 40 cents on the word "said” refers to unless it be to a the dollar, with no obligation on the part of fcreclosure sale under the third article, that, the defendant to buy the rest of the bonds is, a foreclosure sale instituted by the de and the allied stocks, but an agreement to ferdants. On the other hand it is hard to share with Tennis any saving on the agreed interpret "at the said foreclosure sale" to price if they were acquired for less, with mean "at any foreclosure sale," and that no agreement to foreclose the mortgage and is what the plaintiff in effect asks us to do. to pay Tennis $10,000 on foreclosure, but an

The plaintiff's next argument is that al agreement that if they instituted a foreclosure though it is conceivable that Tennis might under the third article and became the purhave parted with the control which a ma purchasers they would pay Tennis $10,000 jority of the bonds gave him, it would have less foreclosure expenses, and share with been a foolish contract for him to make, un Tennis any saying on the price of 40 cents on less the defendants bound themselves to pro the dollar for bonds under the foreclosure ceed to the foreclosure or buy in the allied sale; and finally, with the agreement to bid stocks; for unless they did come under such at a foreclosure which the defendants inali obligation they were at liberty to sell at stituted under the third article of the contract. a' profit, as they did, leaving the plaintiff to It is evident that the purpose of the defendwhistle for his $10,000 and the “other pay. ants in thus restricting their obligation as to ments for which he stipulated.”

these matters was because unless they acquirWhether it was a foolish contract for Ten ed the stocks held by Morrell they had no

intention of foreclosing the mortgage; since to a brother, to share with him was void for in that event a foreclosure of the mortgage

want of consideration. would not give them the right of way, which


Where a mother devised her property to was what they wished to secure. The only

one son, if oral evidence could be employed to conclusion to which we can come is that the show that a share was intended for another son, defendants were willing to buy the bonds for his remedy against the devisee was in equity, 40 cents on the dollar and take the risk of

and not at law. that purchase. Beyond that they were not Exceptions from Superior Court, Worcester willing to bind themselves, but were willing, County; Edward P. Pierce, Judge. in case they decided to use the control given Action by Oscar F. Chase against Jennie them by the bonds, to make the further pay S. Chase. Judgment in favor of defendant, ment of $10,000 less foreclosure expenses to and plaintiff brings exceptions. Exceptions share in the savings, if any, on the agreed overruled. price, and to secure to the plaintiff what

E. H. Vaughan, for plaintiff. Chas. Hagwould be secured to him by having the prop

gerty and Jerry R. Kane, for defendant. erty bid in for at least $100,000. It is perhaps worth while to add that it

LATHROP, J. We are of opinion in this seems at least improbable that the defendants

case that an action at law cannot be mainwould agree to pay $110,000 for the bonds

tained on an account stated. An account and allied stocks and assume the burden of

stated must be founded on previous transac. ar obligation to get in the allied stocks when the plaintiff had just given up as hopeless

tions of a monetary character creating the

relation of debtor and creditor. Lubbuck v. his contract to deliver to J. F. Shaw, one of

Tribe, 3 M. & W. 607; Mellon v. Campbell, the defendants, the same securities for $115,

1 Pa. 415. It cannot be made the instrument 000.

to create a liability where none before exThis brings us to the plaintiff's contention

isted, but only determines the amount of a that the jury were warranted in finding that

debt where liability exists. Austin v. Wilthe defendants orally agreed to buy the bonds

son, 33 y. Y. St. Rep. 503, 11 N. Y. Supp. and allied stocks or foreclose the mortgage in

565. consideration of Tennis' executing the writ

On the facts found by the auditor, there ten contract.

was no legal liability existing on the part of When this was first testified to

by Mr.

the defendant's testator towards the plainClark, who acted as Tennis' counsel in the

tiff, on May 31, 1895, after the death of the matter, it appeared as if a promise to that

mother; and the alleged promise of the effect was made comtemporaneously with the

defendant's testator to share equally with execution of the written contract. But Mr.

the plaintiff the proceeds of the mother's Clark in his cross-examination testified that

estate was without consideration and void. the oral promise was not made when the con

If the property left by the will of the tract of August 13 was executed, and that

mother to the defendant's testator absolutely that part of the agreement was changed; and

can be shown by oral evidence to have been "for that part was substituted the parts re

intended one half for the plaintiff, his remedy lating to the foreclosure of the mortgage as

is in equity and not at law. Oliffe v. Wells, contained in" the contract here sued on.

130 Mass. 222. Dowd v. Tucker, 41 Conn. This testimony therefore was testimony to

197; Hooker v. Axford, 33 Mich. 453; Gilnegotiations which were later merged in the

patrick v. Glidden, 81 Me. 137, 16 Atl. 464, writing which was agreed to as the contract

2 L. R. A. 662, 10 Am. St. Rep. 245. of the parties.

Exceptions overruled. In our opinion the presiding judge was right in directing the jury to return a verdict for the defendants.

(191 Mass. 479) Exceptions overruled.

BAMFORD V. G. H. HAMMOND CO. (Supreme Judicial Court of Massachusetts.

Suffolk. May 16, 1906.) (191 Mass. 556)


ANT APPLIANCES. (Supreme Judicial Court of Massachusetts.

That a hatchway in a vessel was uncovered Worcester. May 16, 1906.)

did not constitute a defect in the ways, works, 1. ACCOUNT STATED-NATURE AND ESSEN

and machinery of an employer engaged in load

ing the vessel with meat, so as to render it TIALS. An account stated must be founded on pre

liable to an employé who fell into the hatchvious transactions of a monetary character

way, under Rev. Laws, c. 106, $ 71, cl. 1, giving creating the relation of debtor and creditor, and

employés the right to recover for injuries caused cannot be made the instrument to create a

by defects in the ways, works, and machinery

owned by the employer. liability where none before existed, but only determine the amount of a debt.


DENCE. [Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Account Stated, § 13.]

Where plaintiff was employed by defend

ant to assist in loading a vessel with meat, and 2. CONTRACTS—CONSIDERATION.

was injured by falling into a hatchway, while Where a mother devised all her property | stepping backward to avoid a run which swung to one son, his promise, after testatrix' death while being hoisted and pressed against him,

but did not hit him, this was insufficient to that the men were putting a chain around the show negligence on the part of the employer.

run to hoist it to get it out of the way. Then 3. SAME-WARNING EMPLOYÉ.

the order was given to the man at the winch Where an employé had been engaged for a long time in aiding the employer in loading

to hoist and the run came up and swung as a vessel with meat, the employer was not bound above mentioned. to warn him of the danger of stepping into a The hatch was about 15 feet long, and hatchway uncovered to enable other employés

about 12 to 13 feet wide. There was a beam to use it. [Ed. Note.-For cases in point, see vol. 34,

which ran across amidships in the center, Cent. Dig. Master and Servant, $$ 308, 309.]

which was the main beam. There were also

two small beams, one of which ran from aft Report from Superior Court, Suffolk

to the center beam and the other from the County; Jas. B. Richardson, Judge.

center beam to the fore part of the hatch. Action by one Bamford against the G. H.

Planks about 4 or 412 feet long, 2 feet wide, Hammond Company. Verdict for defendant,

and 3 inches thick were used to cover the and case reported to the Supreme Judicial

hatch. The coaming of the hatch was 12 to Court. Judgment on the verdict.

16 inches above the deck. H. P. Brown, for plaintiff. Dickson & Two of the plaintiff's fellow servants had Knowles and Wm. B. Sprout, for defendant. taken off one of the planks so that they could

go below by the ladder, and had not replaced LATHROP, J. This is an action of tort it, as one of the men who was to go below for personal injuries sustained by the plain was still on deck. It was down this hatch tiff while in the defendant's employ. The that the plaintiff fell. declaration contains three counts. The first We assume for the purposes of the case and second are under Rev. Laws, C. 106, § | that there was evidence that the plaintiff 71, cls. 1, 2, respectively, and the third is was in the exercise of due care, though no at common law. At the close of the evidence explanation is offered as to the reason he for the plaintiff, the judge directed a verdict was on the hatch instead of being on the for the defendant, and by the agreement of deck where the rest of the men were, and counsel if upon the evidence the jury would where the evidence shows there was plenty have been warranted in finding a verdict for of room. the plaintiff on any count, judgment was to be The plaintiff cannot recover on the first entered for the plaintiff in the sum of $1,500, count, for there was no evidence of any deand costs; otherwise, judgment was to be fect in the ways, works and machinery. Nor entered on the verdict for the defendant. did the ways, works and machinery belong

The bill of exceptions is a long one, but to the defendant, but all belonged to the the facts as shown by the evidence may be steamship. Hyde v. Booth, 188 Mass. 290, 74 stated briefly. The defendant is a corpora N. E. 337. tion engaged in the shipping of beef and Nor do we see any negligence on the part other meats. Before and at the time of the of the superintendent. There was nothing injury, which happened on December 2, 1902, to show that the chain was fastened about about half past six in the afternoon, it the skid in any manner but the usual one, or shipped one or two ship loads of beef a week. that it was hoisted in an unusual way. IP The plaintiff had been in the employ of the the man at the winch hoisted it too quickly, defendant about 18 months with a gang of

that was the negligence of a fellow servant about 38 men. Most of his work was on the of the plaintiff. It appears that the usual dock in carrying meat to vessels two nights

order to hoist was given, preceded by a in the week. He had worked for 7 or 8 warning from Bruce for the men to get out years before that in packing away beef on of the way. The order to hoist can be invessels. His evidence shows that he was a terpreted only as an order to hoist in a propman of experience and knew all about the er way. Gouin V. Wampanoag Mills, 172 business. The accident was caused by his Mass. 222, 51 N. E. 1078; Desautels v. falling down an open space in the ladder Cloutier, 189 Mass. 349, 75 N. E. 703. If it hatchway on board the steamship Armenian, was the duty of the men to guide the skid as while stepping backward to avoid a it arose, and they neglected to do it, that was which swung while being hoisted, and, as the fault of the fellow workmen of the plainhe testified, pressed against him but did not tiff. No one can read the evidence without hit him.

being satisfied that there was nothing unThe plaintiff was ordered to go aboard the usual on the steamship that night except the vessel by one Waterhouse, who had charge fact that the plaintiff chose to get up on the of the men on the dock, while one Bruce hatch. had charge of the men on the vessel. The While in a sense the place where the plainorder to the plaintiff was “to go ahead up tiff was put to work was a dangerous place, and help get the runs in.” When he got on yet to a man of his experience, there was no the deck of the vessel he stepped upon to necessity of giving any warning. He knew the covered part of the hatchway. He no all that any one could have told him to look ticed that one-half of the other side of the out for. He knew that beef was to be put hatchway was uncovered, but did not notice into the hold and that some of the men would that the ladder hatch was open. He noticed have to go there to pack away the beef, and

would have to take off the ladder hatch. On defendant. The second action is for conall the evidence in the case we fail to find scious suffering. At the trial in the superior any breach of duty which the defendants court, at the close of the plaintiff's evidence, owed the plaintiff. Mellen v. Wilson Sons the judge, at the request of the defendant, di& Co., 159 Mass. 88, 34 N. E. 96.

rected the jury to return a verdict for the de Judgment on the verdict for the defendant, fendant in each case; and the cases are be

fore us on the plaintiff's exceptions.

It was incumbent on the plaintiff in each (191 Mass. 486)

case to prove that her testate was in the exerADAMS v. BOSTON & N. ST. RY. CO. (two

cise of due care. The accident happened in the cases).

town of Chelmsford on March 10, 1904, about (Supreme Judicial Court of Massachusetts.

5 o'clock in the afternoon. The testate was Middlesex. May 16, 1906.)

78 years of age, and was very deaf. When 1. DEATH – ACTIONS FOR CAUSING NEGLI

first seen by one of the witnesses he was GENCE OF DECEASED-BURDEN OF PROOF. In an action against a street railway for

walking by the side of the track. This witthe death of a pedestrian struck by a car while ness testified that soon after he saw him deceased was walking along the track, the bur walking between the rails of the track, and den was on plaintiff to prove that deceased was

all the witnesses testified that he continued in the exercise of due care. [Ed. Note.-For cases in point, see vol. 15,

80 walking until struck. Cent. Dig. Death, $ 78.]

According to the testimony of some of the 2. STREET RAILROADS - INJURIES TO PEDES

witnesses the car was 500 feet away when TRIANS–CONTRIBUTORY NEGLIGENCE-DAN they first saw the testate. They all heard GEROUS PLACE.

the gong sounded; and one of them testified Where deceased was killed by being struck

that "it seemed to him that the motorman by a street car while he was walking on the track, the fact that the walking was better

was doing everything possible to bring the there than in the highway was no excuse for car to a standstill.” It appears that the road his assuming such dangerous place, when he

was slushy and the rails wet. The car was could have walked on the highway with safety.

going at the rate of 8 or 10 miles an hour. [Ed. Note.-For_cases in point, see vol. 44, Cent. Dig. Street Railroads, $206.]

The only excuse offered for the testate's 3. SAME-DEFECTIVE HEARING.

walking between the rails is that the walkWhere deceased, at the time he was killed ing was better there than on the highway. while walking on defendant's street car track, It does not appear whether there was any was 78 years of age and very deaf, his want

sidewalk on the street or not. of hearing made it incumbent on him to be more alert in the use of his other senses.

Where the testate was walking was a dan[Ed. Note.-For_cases in point, see vol. 44,

gerous place, where no man of ordinary pruCent. Dig. Street Railroads, $ 217.]

dence would walk. Dooley v. Greenfield & 4. SAME-EVIDENCE.

Turner's Falls St. Ry., 184 Mass. 204, 68 N. Deceased, a man of 78 years of age and E. 203. The fact that the walking was betvery deaf, was killed by being struck by a

ter there than in the bigbway was no excuse, street car running 8 or 10 miles per hour on a wet track while deceased was walking along

"His want of hearing made it incumbent upon the track. He was first seen walking beside him to be more alert in the use of his other the track some 500 feet away from the car, and senses." Hall v. West End St. Ry., 168 Mass. soon after he was seen walking between the rails, which he continued to do until he was 461, 47 N. E. 124. The evidence in the case struck. The motorman sounded the gong, and

is that he did not once look around to see one of the witnesses testified that it seemed whether a car was coming. to him that the motorman was doing every

On the evidence in the case we are of opinthing possible to bring the car to a standstiil. During the time deceased was visible he did

ion that the testate was not in the exercise of not once look around to see whether a car was due care; and that the ruling was right. coming. Held, that deceased was guilty of con This renders it unnecessary to consider whethtributory negligence as a matter of law.

er there was any evidence of negligence on Exceptions from Superior Court, Middlesex the part of the defendant. County; Chas. T. Bell, Judge.

Exceptions overruled.
Actions by one Adams, as executrix of the
will of Otis Adams, deceased, against the
Boston & Northern Street Railway Company.

(191 Mass. 482) A verdict was directed in favor of defendant

ERB v. BOSTON ELEVATED RY. CO. (two in each case, and plaintiff brings exceptions.

cases). Overruled.

(Supreme Judicial Court of Massachusetts.

Suffolk. May 16, 1906.) John J. Harvey, for plaintiff. Richardson,

STREET RAILROADS — CROSSING ACCIDENT – Trull & Wier, for defendant.


LATHROP, J. These are two actions of tort, brought by the plaintiff as executrix of the will of Otis Adams. The first action is brought, under Rev. Laws, c. 111, § 267, for the death of her testate, in consequence of his being struck by an electric car run by the

Plaintiffs were injured in a collision with defendant's street car as plaintiffs were driving diagonally across defendant's tracks. Before driving on the track, plaintiffs stopped and looked both ways for cars, and listened, but saw and heard nothing. They then proceeded, and were almost immediately struck by a car. The accident occurred at about half past 11

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