tiff, and defendant excepts. Exceptions sustained, and judgment ordered entered for defendant. M. F. Cunningham, of Boston, and J. A. Pagum, of Malden, for plaintiff. McLellan, Carney & Brickley and Swain, Carpenter & Nay, all of Boston, for defendant. PIERCE, J. While a tenant of the defendant the plaintiff was injured by the falling upon her of a part of the ceiling in the kitchen of her tenement. Upon disputed evidence the jury could have found that about two weeks before the accident an agent of the defendant, duly authorized to make repairs on behalf of the defendant, had replastered the ceiling which fell upon the plaintiff about two weeks before the accident. Other than such inference as may be drawn from the fall of the plaster, no evidence was offered to prove either faulty composition of the material used, or unskilled and unworkmanlike application of the coating to the walls of the ceiling. Nor was there any evidence to exclude the inference of the operation of other causes which might have produced the accident. We are of opinion that the mere occurrence of the accident raised no presumption against the defendant. The motion to direct a verdict should have been allowed. The exceptions must be sustained and judgment entered for the defendant under St. 1909, c. 236. So ordered. (229 Mass. 44) BROWN v. C. A. PIERCE & CO., Inc. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 2, 1918.) 1. FRAUD 12 MISREPRESENTATIONS OF FACT-RECOVERY. In an action of tort against a company for deceit, through false representations which the company's agent made to plaintiff to induce him to expend money in the purchase of subscriptions to a paper published by the company under the terms of a voting contest, where there was no evidence of the falsity of the statement by the agent to plaintiff that the contestants were losing interest, and the contest was going to be a failure, and the remaining statements charged against him were not of existing facts, being at most words of intention or prophecy, plaintiff could not recover, since the tort of deceit consists in the false statement by words or conduct of present or past material facts, and does not consist of mere promises or conjectures as to future acts or events. 2. CONTRACTS FRAUD BY MISREPRESENTATIONS. Where plaintiff was induced to make payments to defendant's agent on the latter's alleged false representations that a voting contest conducted by defendant was going to be a failure, and that if plaintiff would pay a certain amount he would win an automobile as a prize, etc., such misrepresentations were not of a character to entitle plaintiff to rescind the contract. 94(6) -- RESCISSION - Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge. Action by Frederick W. Brown against C. A. Pierce & Co., Incorporated. There was verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered entered for defendant. J. W. Pickering, of Boston, for plaintiff. Frank M. Forbush and Hiram E. Tuttle, both of Boston, for defendant. PIERCE, J. This is an action of contract or tort. The declaration is in three counts; the first count alleges that the defendant through its agent, one Barry, made certain false representations which were intended to induce and did in fact lead the plaintiff to expend money in the purchase of subscriptions to a paper published by the defendant under the terms of a "voting contest"; the second count alleges that the defendant through its officers and agents conspired with sundry persons to cheat and defraud the plaintiff by means of the false representations set out in the first count and incorporated in the second count by reference thereto; the third count is an action for money had and received to the plaintiff's use. Counts 1 and 2 are alleged to be for the same cause of action, and count 3 "for a part of the same cause of action." At the trial there was no evidence to warrant the allegations of the second count to the effect that the defendant, by its officers and agents, wrongfully conspired with sundry persons to cheat and defraud the plaintiff by means of the same representations set out in the first count. The second count may therefore be disregarded, and we proceed to a consideration of the testimony introduced in proof of the allegations contained in the first and third counts. The evidence was sufficient to establish the agency of both Monger and Barry, should the jury believe that the "Memorandum of Agreement" was not intended to express the real agreement between the parties, but was to be a cloak or shield to protect the defendant from actions that might arise from the wrongful conduct of its agents and servants. The jury expressly found Barry was the agent of the defendant, and it could have been found upon the testimony that Barry, to induce the plaintiff to put his money into the "voting contest" stated to the plaintiff and to the wife of the plaintiff in the presence of the plaintiff, "that the contestants were losing interest in it and it was going to be a failure"; that "they had bought all these prizes and couldn't afford to give them away"; "that somebody had got to put some money into it so they could get out of it"; that anybody would be a fool if they had a chance to get an automobile for $300 and wouldn't accept the chance"; that "if I [the plaintiff] would give him a check for $300 that night that I would win the automobile and also the grafonola that was put up as a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes special prize." The jury could further find that the plaintiff put $300 and afterwards $240 into the contest in reliance upon the above statements of Barry, and particularly and specifically upon the statement that if he, the plaintiff, would give him, Barry, a check that night, he, the plaintiff, would win the automobile and the grafonola. There was evidence to warrant a finding that one Monger, who had the management of the contest and who could have been found to have been the agent of the defendant, and one C. A. Pierce, the treasurer and manager of the defendant corporation, each had knowledge of the statements of Barry to the plaintiff before the $300 and the $240 were paid. There was no evidence of the untruth or falsity of the statement "that the contestants were losing interest in it and it was going to be a failure." The remaining statements were not of existing facts. They were at most words of intention or prophecy. Where the jury found that the cost of completing the work was less than the unpaid balance of the contract price, defendant owner's request for a ruling that if the jury found that it would have cost plaintiff to complete the work more than the unpaid balance of the contract price, plaintiff could not recover, was rendered immaterial. 4. TRIAL 194(11), 252(13)-INSTRUCTIONSEVIDENCE. In an action for the owner's breach of contract for installation of metal work in a theater, a requested ruling that if defendant failed to make any payment due plaintiff, plaintiff waived any right to insist on such failure as an excuse for nonperformance on his part by continuing to perform, was inapplicable where plaintiff did not claim such excuse, nor admit nonperformance, and in any event the question of waiver of his rights was for the jury. 5. DAMAGES 124(4)—BREACH OF CONTRACT. Where defendant, the owner of a theater, who had contracted with plaintiff for the inde-stallation of metal work, wrongfully prevented plaintiff from completing his work, a verdict for plaintiff for the contract price, less the reasonable cost of completing the work by defendant, was justified if nothing further appeared. 6. APPEAL AND ERROR 930(4)-PRESUMPTIONS FAVORING JUDGMENT BELOW. [1] In the law of torts, the wrong of ceit consists in the false statement by words or conduct of present or past material facts, and does not consist of mere promises or conjectures as to future acts or events. Knowlton v. Keenan, 146 Mass. 86, 15 N. E. 127, 4 Am. St. Rep. 282; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404. It is plain the plaintiff was not entitled to recover on the counts in tort. [2] Nor can there be any recovery on the count in contract, which proceeds on the footing of a rescission of the contract which the plaintiff alleges he was induced to make by the misrepresentations set out in the count in tort. McCusker v. Geiger, 195 Mass. 46, 80 N. E. 648. It follows that the motion to direct a verdict for the defendant should have been allowed, and it is unnecessary to determine whether the demurrer was overruled rightly. The exceptions must be sustained and judgment entered for the defendant. 1909, c. 236. So ordered. (229 Mass. 27) MILLEN v. GULESIAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 1, 1918.) St. LIQUIDATED DAM 1. DAMAGES 157(3) Where a contract provided that plaintiff should forfeit and pay to defendant $50 for each week that the work on defendant's theater should remain unfinished after the time specified, and defendant, in his declaration in set-off, claimed that amount for 20 weeks, thus trying his case on the assumption that the provision was one for liquidated damages, and not a penalty, he should be confined to the measure of damages for delay which he had agreed on in advance. 2. APPEAL AND ERROR 1056(4)-IMMATE RIAL ERROR-EVIDENCE. If there was error in excluding defendant's evidence on the question of damages under his declaration in set-off, it was rendered imma In an action for breach of contract, where there was a general verdict for plaintiff, it is to be presumed that the jury found either that breach of contract by plaintiff was not substantial, or was waived by defendant. Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge. Action by Joseph Millen against Moses H. Gulesian and trustee. There was verdict for plaintiff, and defendant excepts. Exceptions overruled. The fourteenth ruling requested by defendant was: "If the jury find that it would have cost the plaintiff to complete the work more than the unpaid balance of the contract price, the plaintiff cannot recover under the second count of his declaration." Defendant's fifteenth ruling requested was: "If the defendant did at any time fail to make any payment due the plaintiff under the terms of the contract, the plaintiff waived any right which he might otherwise have had to insist upon such nonpayment as an excuse for the nonperformance of his part of the contract by continuing to perform his work and insisting upon the right to complete his contract." Francis P. Garland and Alex. G. Gould, both of Boston, for plaintiff. J. W. Pickering, of Boston, for defendant. DE COURCY, J. The parties entered into a written contract, dated January 25, 1912, by which the plaintiff agreed to furnish and install all the metal work (except the structural metal work) for the defendant's theater, as set forth in the plans and specifications, for the sum of $8,825. On June 3, 1912, the defendant gave to the plaintiff a notice (which is not set out in the record) in accordance with section III of the contract, [4] 3. The fifteenth request was not applicable to the evidence. We do not understand that the plaintiff excused any failure to perform his contract on the ground of the nonpayment of money due to him, or that he' admitted nonperformance. In any event, the question of waiver of his rights was for the jury. and on the expiration of ten days provided dered the request immaterial. McIntosh v. other workmen and materials and completed Hastings, 156 Mass. 344, 31 N. E. 288. the work. At the trial of this action for breach of the contract the evidence for the plaintiff on every material issue apparently was contradicted. But as the verdict was in his favor, it is enough to say that on his testimony it could be found that he got the material of different kinds as soon as he was given the measurements, made deliveries as soon as the building was ready for them, and was prepared to perform his part of the agreement when ordered away from the building by the defendant. The jury found for the plaintiff in the sum of $2,387.37, and found for the plaintiff on the defendant's declaration in set-off. They further answered, in reply to questions submitted to them by the presiding judge, that the sum reasonably necessary after June 14, 1912, to complete the work called for by the contract was $5,768; that neither of the parties lived up to the terms of the contract; that the plaintiff acted in good faith in the performance of his part of the agreement; and that they determined the amount of the verdict by deciding that he was entitled to $3,056.87 less $1,100 already received by him on account, together with $430.50 interest. The defendant's exceptions are to the exclusion of evidence, to the refusal to give two requests, and to certain parts of the judge's charge on the issue of damages. We consider them in that order. [5, 6] 4. On the special findings of the jury it must be taken that the defendant wrongfully prevented the plaintiff from completing his work. That would justify the verdict in favor of the plaintiff for the contract price less the reasonable cost of completing the work by the defendant-if nothing further appeared. The jury also found, however, that the plaintiff did not live up to the terms of his contract; but they found that he acted in good faith in the performance of his part. It is stated in the record that "there was conflicting evidence on the question or waiver of performance by both parties." It is to be presumed, in view of the general verdict for the plaintiff, that the jury found e ther that the breach by the plaintiff was not substantial, or that it was waived by the defendant. It follows that the exceptions do not show that the defendant was aggrieved by the portions of the charge excepted to. Rowley v. Ray, 139 Mass. 241, 244, 29 N. E. 663; Phillips v. Chase, 203 Mass. 556, 89 N. E. 1049, 30 L. R. A. (N. S.) 159, 17 Ann. Cas. 544.. Exceptions overruled. (229 Mass. 219) GRANT v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 7, 1918.) by 117(21) - INJURIES ON TRACK-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. [1, 2] 1. The defendant offered to introduce evidence showing the amount of loss occasioned him by the delay in opening the theater. The contract provided that the plaintiff should "forfeit and pay to" the defendant $50 for each and every week that the work, or the several portions thereof, should remain unfinished after the dates specified therefor; and the defendant, in his declaration in set-off, claimed that amount 1. STREET RAILROADS for twenty weeks, or from February 18, 1912, to the date of the writ. Evidently he tried his case on the assumption that this provision was one for liquidated damages and not a penalty (see Kaplan v. Gray, 215 Mass. 269, 102 N. E. 421), and he should be confined to the measure of damages for delay which he had agreed upon in advance (Morrison v. Richardson, 194 Mass. 370, 80 N. E. 468). But even if there were error in excluding this evidence on the question of damages, it was made immaterial by the finding that there was no liability on the defendant's declaration in set-off. Ducharme v. Holyoke St. Ry., 203 Mass. 384, 89 N. E. 561; Cotter v. Nathan & Hurst Co., 222 Mass. 433, 110 N. E. 1037. [3] 2. We do not find it necessary to consider the fourteenth ruling requested, in view of the finding of the jury that the cost of completing the work was less than the unpaid balance of the contract price, which ren In an action for injuries to plaintiff, struck defendant street railway's car when crossing a street, issue of plaintiff's due care held for the jury under the evidence. 2. STREET RAILROADS 114(7)-INJURIES ON TRACK-NEGLIGENCE-EVIDENCE. In such action, where defendant's motorman testified that the railroad required extra care in passing excavations, that he saw plaintiff when the car was 75 feet away, that plaintiff was 15 feet from the track, moving slowly, that he (the motorman) started to slow up, that plaintiff slowed up when within 4 or 5 feet of the track, and that he (the motorman) then put on speed, taking a chance to slow up and stop if plaintiff kept on going, etc., there was evidence of negligence by defendant's agents. Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge. Action by Willis F. Grant against the Boston Elevated Railway Company. There was verdict for plaintiff, and defendant excepts. Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * Wm. P. Meehan and Chas. H. Donahue, I down there carefully I looked the other way, both of Boston, for plaintiff. E. P. Saltonstall, of Boston, for defendant. PIERCE, J. This is an action of tort to recover for personal injuries received by the plaintiff on September 19, 1914. Upon the footing of an action arising and tried before St. 1914, c. 553, at the close of the evidence the defendant in writing moved the court to rule that "upon all the evidence the plaintiff was not entitled to recover." This the court refused to do and the defendant's exception to this refusal was duly saved. [1] The jury would have been warranted in finding the substantial and material facts to be as follows: The plaintiff was fiftythree years of age and in the full possession of his faculties, both sight and hearing. On the evening of the accident he was returning from the Public Library to his home and was crossing Tremont Street from an "island" on its northerly side to Waltham Street on its southerly side, on the westerly or out of town crosswalk. He was struck by an outbound car just as he stepped across the first rail of the outbound track. It was nighttime and dark but the street lights were lighted and the stores in the vicinity were opened and lighted up. The crosswalk measured 70 feet from curb to curb. From the curbing of the "island" to the first rail of the outbound track, and place of the accident, the distance is 311⁄2 feet. At the time of the accident, the surface of Tremont Street between the outbound track and the "island" had been removed for repaving on both sides of the crosswalk, but more on the right than on the left. The flagstones of the crosswalk remained in place. The crosswalk was about 5 feet in width, and on its surface there were stones and dirt and gravel which had come from adjoining piles of gravel. The paving stones, which had been taken up, were piled along the rail and also near the curb of the "island." There were wooden horses, parallel with the crosswalk near the track, with red lights on them, and also, wooden horses near and parallel with the track on either side of the crosswalk. On the "island" near the intown or easterly crosswalk from Waltham Street, was a watering trough for horses, which was 30 feet east of the westerly crosswalk. At the time of the accident there was a two-horse covered team drawn up toward and headed in the direction of the watering trough. On the "island" there was a police signal box 121⁄2 feet west of the westerly crosswalk. In the daytime a person standing on the curbing of the "island" in front of the crosswalk could see in the direction of Boston at least 500 feet and in a westerly direction toward Roxbury about 3,000 feet. The plaintiff testified: "As I stepped on the crosswalk I looked down I next looked towards-to my right after I had stepped a little further and I saw no car coming from that direction, and I walked along and kept walking towards the track on the crosswalk and when I got about half way no cars, and then as I walked along further I across I looked again towards Boston and saw looked in the other direction and of course I had to pick my way along to avoid stepping on anything on the crosswalk, and as I reached the other track I was looking in the direction away from Boston." I had to watch my He further testified that he "had to look a little more carefully on account of looking over those red lights, • they were a little dazzling. step to avoid stepping on those little stones and things. It took some of my attention." "I reached the track and had just stepped across" the first rail "with one foot and I heard the gong strike of the electric car at my left and I turned quickly toward-facing the car, and tried to jump back, but it was on me before I could get back. The car struck me before I could get out of the way." He further testified, that "when he was leaving the curb or about there he saw a large team drawn up toward the watering trough"; that the team was between him and the outbound track; that he could not see down the track much beyond the team; that when he looked toward Boston the second time, there being about 15 feet from the nearest rail, he could see quite a long way, nearly down to Hanson Street; that he did not see any car; that the track was all free and clear so far as he could see, down about 150 feet; that as he looked he was walking toward the track at the rate of perhaps 21⁄2 miles an hour; that after coming out from behind the team "he had as clear a view as you could have at night of the rail down toward Boston" and "during the time he was passing over that 10 feet he did not look toward Boston as he was looking in the other direction for inbound cars." He then said, that his reason for not looking again was that the tracks were clear when he was within 15 feet of the rail, that he had to watch his steps because of the stones and gravel on the crosswalk and believed he had plenty of time to get across before any car could reach him. It is the contention of the defendant that had the plaintiff looked toward Boston at any time when he was within 10 feet of the rail, he would have seen the car in season to have avoided it; and that not to have seen it and not to have looked were equally acts of negligence which required a ruling of want of due care, and cites Fitzgerald v. Boston Elev. Ry., 194 Mass. 242, 80 N. E. 224; Beirne v. Lawrence & Methuen St. Ry., 197 Mass. 173, 83 N. E. 359; Willis v. Boston & Northern St. Ry., 202 Mass. 463, 89 N. E. 31; Collins v. Boston Elev. Ry., 218 Mass. 284, 105 N. E. 639. While the question is close, scious of his danger and had his mind actively directed to the avoidance of harm, the fact that he could be seen by the motorman as he came out from behind the team, the fact that his attention was required to guard his steps while passing over the crosswalk made treacherous by the presence thereon of small stones and gravel, and all the other circumstances of time and place, distinguish the case at bar and required that the issue of due care be left to the consideration of the jury. Lunderkin v. Boston Elev. Ry., 211 Mass. 144, 97 N. E. 743; O'Toole v. Boston Elev. Ry., 211 Mass. 517, 98 N. E. 510; Foster v. Boston Elev. Ry., 214 Mass. 61, 100 N. E. 1039. policy was issued, that on the occasion of a prior removal by plaintiff he gave the policy to such to the removal, etc., and that defendant brokers, employé, who procured defendant brokers' assent as agents for the fire insurance company, had frequent dealings with their employé, who was also an agent of the company, with relation to its policies, were admissible as relevant to proof of the business relations of the parties, to be inferred from other transactions in their nature closely related to the facts in issue. Exceptions from Superior Court, Essex County; Wm. Hamilton, Judge. Action by Charles H. Damon against John T. Kaler and others. There was verdict for plaintiff, and defendants except. Exceptions overruled. Defendants' requests, so far as material to the opinion, were: (1) Upon all the evidence the plaintiff cannot recover. [2] The request to rule that there was no evidence of any negligence of the defendant's agents and servants could not have been given properly. The motorman testified that the (2) Upon all the evidence it cannot properly rules required extra care in passing excava- be found that the defendants are legally respontions near the track; that he saw the plain-Hallett may have been guilty in connection with sible to the plaintiff for any neglect of which Mr. tiff when the car was 75 feet away from the the not obtaining the assent of the Buffalo Gercrosswalk; that the plaintiff was 15 feet man Insurance Company to the transfer of the from the rail, moving slowly; that he (the plaintiff's property to the location where the fire motorman) started to slow up; that the plaintiff slowed up when within 4 or 5 feet of the rail; that he (the motorman) then put on speed; that he "took a chance to slow up" and stop the car if the plaintiff kept on goIng; that the car was going at the rate of 5 miles an hour and could have been stopped within 25 or 30 feet. As the jury found for the plaintiff upon the issue of his due care and the negligence of the defendant, it becomes immaterial to determine whether in an action arising after St. 1914, c. 553, as this action did, the plaintiff can waive the provisions of that statute and with the consent of the presiding judge and the defendant agree that the judge shall instruct the jury: "That the recent statute which says that a plaintiff shall be presumed to be in the exercise of due care puts upon the defendant only the burden of going forward, and does not disturb or change the burden of proof." Exceptions overruled. (229 Mass. 215) DAMON V. KALER et al. (Supreme Judicial Court of Massachusetts. sex. Jan. 7, 1918.) occurred. (3) There is no evidence of negligence on the part of the defendants. (4) There is no evidence of any neglect on the part of the defendants of any duty which they owed to the plaintiff. (6) The fact, if it be a fact, that Mr. Hallett was paid or allowed a commission by the defendants when the policy was issued is immaterial to any issue involved in this case. (8) The fact that on the occasion of the plaintiff's removal from Lynn to Nahant he gave the policy in question to Mr. Hallett and Mr. Halsuch removal and they made the necessary enlett procured the assent of the defendants to dorsement on the policy and gave the policy back to Mr. Hallett, is immaterial to any issue involved in this case. question to Mr. Hallett for the purpose of ob(15) When the plaintiff gave the policy in taining the assent of the Buffalo German Insurance Company to the removal of his property to the building where the fire occurred, Mr. Hallett thereupon became, for that purpose, the agent of the plaintiff. (17) The fact that the defendants, as agents for the Westchester Fire Insurance Company, had frequent dealings with Mr. Hallett, who was also an agent of that company, with relation to policies of that company is immaterial to any issue involved in this case. (18) Whatever duties Mr. Hallett was under to the plaintiff sprang from his promise to obtain the assent of the company to the transfer and Es- not from any relationship which existed between himself and the defendants. 1. INSURANCE 92 FIRE INSURANCE AGENT OF BROKERS-ACTION WITHIN SCOPE OF AUTHORITY-SUFFICIENCY OF EVIDENCE. In an action of contract against insurance brokers, evidence held to warrant finding that an employé of defendants was their agent, acting within the scope of his authority in undertaking to deliver plaintiff's policy to defendants to be changed to bear the company's assent to a removal of the insured furniture to a different location. Guy Newhall and James W. Sullivan, both of Lynn, for plaintiff. Brown & Came, of Boston, for defendants. PIERCE, J. The defendants are general insurance brokers and are agents of certain foreign and domestic insurance companies with offices in Boston. On May 8, 1914, the plaintiff became a holder of a policy of the 2. INSURANCE 92-FIRE INSURANCE-LIA- Buffalo German Insurance Company, a comBILITY OF BROKERS FOR NEGLECT OF AGENT pany represented by the defendants, for a The facts that defendant brokers' employé term of three years, on household furniture was paid a commission by defendants when the in Lynn. Subsequently, on the removal of -EVIDENCE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |