year from its date. The material recitals LEVISON et al. v. ILLINOIS SURETY CO. therein and the condition thereof are as

Rev. St. U. S. § 3477 (U. S. Comp. St. 1916. 6383), providing that all assignments of claims against the United States shall be null and void, "Whereas, the said Levison & Hanauer, tradunless they are executed after the allowance of ing as Commercial Trades Company, have authe claim or issuance of the warrant, renders thorized and empowered the said Frank Paul, void a bond given by a government contractor the above mentioned, to receive funds from the conditioned that its treasurer would deliver to United States government and to pay over the the assignee of its claims against the governsame to Levison & Hanauer, trading as Comment, who advanced money thereon, the war-mercial Trades Company, as they are received: rants as soon as they were issued, since that section invalidates such assignments and all rights, legal or equitable, arising therefrom, and the assignee is only an unsecured creditor for the amounts advanced.

Within a year after the bond was given Vermilye & Power assigned to the plaintiffs CHASE, J. At the times herein mentioned several accounts for merchandise sold by it the plaintiffs were doing business as copart-to the government to secure advances made to ners under the name of Commercial Trades Company in loaning money on accounts. Vermilye & Power was a domestic corporation engaged in selling merchandise to the United States government. The defendant Frank Paul was its secretary and treasurer. On the first of November, 1910, the defendant surety company executed a bond to the plain- "All remittances received by the assignor shall tiffs in the sum of $5,000 to continue for one be received in trust for the Commercial Trust

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

pany."

Company, and the identical checks or moneys, Manhattan Commercial Co. v. Paul, reported constituting such remittances shall be immedi- in 216 N. Y. 481, 111 N. E. 76. Judge Collin ately turned over to Commercial Trust Com-in that case, referring to the case of National Bank of Commerce v. Downie, 218 U. S. 345, 31 Sup. Ct. 89, 54 L. Ed. 1065, 20 Ann. Cas. 1116, said:

"In that case it was held that an assignment of a claim against the United States for supplies furnished, not in accord with the provisions of the statute, was, as between the assignee and the trustee in bankruptcy of the assignors, absolutely null and void, and did not in itself pass to the assignee any interest, present or remote, legal or equitable, in the claims transferred, and the statute by mere judicial construction in disthat any other holding would 'effect a repeal of regard of the plain, unequivocal intent of Congress as indicated by the statute.' We accept such decision as an authority, and, controlled by it, hold that the present assignment or transfer or authorization was likewise absolutely null and void as between the plaintiff, Vermilye & Power, and the defendant, and did not vest in the plaintiff any right whatsoever, legal or equitable, to the moneys paid by the United States on the claims to Vermilye & Power. The language of the statute and of the opinion in the National Bank of Commerce Case interdicts further discussion." 216 N. Y. at page 485, 111 N. E. at page 77.

Not only were the accounts specifically assigned, but the plaintiffs in further insistance upon their ownership thereof took into their possession the original bills of lading of the merchandise shipped to the govern ment. Warrants were made from time to time by the government payable to Vermilye & Power on account of the merchandise, accounts for which were assigned as stated. These warrants or the proceeds thereof to the extent of $4,730.31 were delivered by Paul to the plaintiffs on account of said advances. There is a balance of $3,700.79 with interest remaining unpaid on the advances made by the plaintiffs on such assignments. It is claimed by the plaintiffs that Paul, as treasurer, has received other warrants from the government on account of the merchandise, the accounts for which were assigned as stated, amounting to considerably more than the balance remaining unpaid on the money advanced by the plaintiffs, but that [1] All rights, therefore, legal or equitable, Paul, instead of turning over such warrants in accordance with the agreement with the arising from the assignments made by Verplaintiffs, has deposited them to the account milye & Power to the plaintiffs, are as if of Vermilye & Power, and has refused to such assignments had never been executed turn the same over to the plaintiffs. This and delivered. Vermilye & Power were absoaction is brought against the surety company lutely and unqualifiedly entitled in form and in fact to every remittance from the governto recover upon said bond. Judgment was directed by the trial court for the amount ment on account of the merchandise sold to claimed by the plaintiffs, and that judgment it by that corporation. Its agreement accomhas been affirmed by the Appellate Division. panying said assignments and also all agreeThe surety company insists that the assignments collateral thereto fall with the void ments from Vermilye & Power to the plaintiffs were absolutely null and void, because in direct violation of section 3477 of the United States Revised Statutes (U. S. Comp. St. 1916, § 6383), which is as follows:

assignments. The plaintiffs have their claim against Vermilye & Power for the moneys advanced to it simply as unsecured creditors. It is now claimed by the plaintiffs that the agreements executed in connection with said assignments and the bond given by the surety company were wholly independent of such assignments, and as such can be sustained, although the assignments are void. We will assume for the purposes of the consideration of this case that a valid agreement could have been made between Vermilye & Power, Paul, its treasurer, and the plaintiffs, by which the plaintiffs were to loan Vermilye & Power money to be paid with warrants to be received by it from the government, and that Paul as the treasurer of the corporation would, with the authority of the corporation, indorse the name of Vermilye & Power thereon and deliver such identical warrants to the plaintiffs until the full payment of the amount loaned by them to Vermilye & Power, and that the surety company could guarantee the faithful performance of such an agreement and become liable to the plaintiffs thereon. Such an arrangement and agreement would only be valid and binding upon the parties because of its being entirely separate from and independent of the prohibition contained in the statute quoted. No The bond was given before the decision in such separate and independent agreement

"All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertain ment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same."

The assignment of accounts mentioned and each of them were made before the allowance of the claims therefor or the issuing of a warrant in payment thereof, and such assignments were not executed in conformity with the requirements of the statute.

HISCOCK, C. J., and CUDDEBACK, HOGAN, POUND, and ANDREWS, JJ., concur. MCLAUGHLIN, J., not sitting.

Judgment reversed, etc.

(230 Mass. 6)

COMMONWEALTH V. HYDE. (Supreme Judicial Court of Massachusetts. Essex. Feb. 9, 1918.)

was executed in this case. It is manifest [ The judgment should be reversed, and the that Paul, assuming to act for Vermilye & | complaint dismissed, with costs to appellant Power and the plaintiffs, entered into the in all courts. agreements mentioned relying upon the assignments being valid and enforceable as between the parties thereto, although null and void as against the government. The formal actions of the parties, so far as shown, the agreements accompanying the assignment of the accounts, and the recitals contained in the bond, do not sustain the claim of an agreement separate and independent of the assignment of the accounts. The resolution of the board of directors of Vermilye & Power has no special significance, and it does not purport to authorize Paul to act as the agent of the plaintiffs. There are no recitals in the bond of authority in Paul to act for Vermilye & Power in the execution of agreements independent of the assignments or otherwise. Such recitals refer to plaintiffs' authority to Paul and also to discounting certain payments due from the government. The discounts were in fact made upon the security of the void assignments and the contemporaneous agreements. The assignments being null and void, there is nothing, so far as appears from the record before us, to prevent Vermilye & Power retaining the proceeds of the accounts for merchandise sold to the government.

[2] The bond also expressly provides that the surety company is not to be liable unless

"the said Frank Paul shall commit an act of larceny or embezzlement of any of the funds intrusted to his care."

The Manhattan Commercial Company Case was an action based upon a similar assignment of claims for merchandise sold to the government by Vermilye & Power. It was brought against Paul, the treasurer of Vermilye & Power, to recover damages alleged to have been sustained by the plaintiff in that action through the conversion by Paul of money paid by the government to him as the treasurer of Vermilye & Power, and which money he is alleged to have agreed to receive as the agent for Manhattan Commercial Company and transferred to it, but which instead of transferring to it he deposited in the bank account of Vermilye & Power.

The judgment recovered against Paul in that action was reversed, and the complaint dismissed, and this court, speaking by Collin, J., used the language quoted above. We are of the opinion, therefore, that the plaintiffs have not shown a larceny or embezzlement by Paul within the meaning of the bond, and that the plaintiffs have not and cannot sustain their complaint.

There are other troublesome questions presented in this case by the appellant, but the view that we take of the merits of the controversy, as stated above, makes it unnecessary to discuss any other questions in the opinion.

1. CONSTITUTIONAL LAW 62-DELEGATION
BY LEGISLATURE TO BOARD OF HEALTH OF
POWER TO MAKE RULES AS TO PROTECTION
OF WATER SUPPLY.

It is within the power of the Legislature to
delegate to the state board of health the power
pollution and to secure the sanitary protection
to make rules and regulations to prevent the
of all waters used as sources of water supply.
2. HEALTH 21-PREVENTION OF POLLUTION
OF WATER SUPPLY REASONABLE POLICE
REGULATION-STATUTE.

A regulation, passed by the state board of health, pursuant to Rev. Laws, c. 75, § 113, as amended by St. 1907, c. 467, § 1, empowering the board to make rules and regulations to prevent the pollution of waters used as sources of water supply, such regulation providing that no person, unless permitted by written permit of the board of water commissioners of the city of Haverhill, shall fish in Crystal Lake in the city, used as a source of water supply, is a reasonable police regulation.

Report from Superior Court, Essex County; Hugo A. Dubuque, Judge.

Fred H. Hyde was convicted of going upon the ice of a lake and fishing therein without written permit from the water commissioners of the city, in violation of the rules and regulations of the state board of health, and he excepts. On report from the superior court. Exceptions overruled.

Louis S. Cox, Dist. Atty., of Lawrence, for the Commonwealth. Hubert C. Thompson, of Haverhill, for defendant.

2-DEATH BY WRONGFUL ACT-DUTY TOWARD INTESTATE.

tary protection, of all such waters as are 12. NEGLIGENCE
used as sources of water supply," with pow-
er to delegate the granting or withholding of
permits to water commissioners, subject to
Investigation and revision by way of appeal
to the board itself.

ing down an elevator well in a building owned
There can be no recovery for death by fall-
by defendant unless defendant had undertaken
the duty of maintaining the elevator in a rea-
sonably safe condition for the intestate's use.
3. LANDLORD AND TENANT 167(1) - LIA-

BILITY OF LANDLORD TO TENANT'S INVITEE.

[1] The delegation by the Legislature of the right to make rules and regulations is Plaintiff's intestate, who went into defendwithin its power. Com. v. Sisson, 189 Mass. ant's building to get waste paper from a floor 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109 leased to a tenant who gave the paper to any Am. St. Rep. 630; Com. v. Kingsbury, 199 one who would come there and take it away, was not clothed with any greater rights against Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264, defendant than the tenant under whose implied 127 Am. St. Rep. 513. The case at bar thus invitation he came upon the premises. is distinguished from Com. v. Staples, 191 4. LANDLORD AND TENANT 167(8)—INJURIES TO TENANT'S INVITEE-LICENSEE. Mass. 384, 77 N. E. 712, where no power of Where a covenant in a lease prohibited the delegation was conferred by the statute there tenant in defendant's building from using the under consideration. The power of revising freight elevator except for freight, plaintiff's the conduct of the water commissioners re-intestate was, at most, a licensee in going toserved to the state board of health by the statute avoids the difficulty of vesting an untrammelled discretion in a subordinate board or officer, which was held fatal to the ordinance before the court in Com. v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168, Goldstein v. Connor, 212 Mass. 57, 98 N. E. 701, and In re Stevens, 228 Mass. 368, 117 N. E. 588.

[2] The regulation passed by the state board of health, in pursuance of the statutory authority, prohibiting fishing upon a body of water used as source of water supply for a municipality, cannot be pronounced unreasonable. It requires no discussion to demonstrate that the preservation of the purity of the water supply for the domestic uses of the people is within the police power. The absolute prohibition of fishing upon such a source of supply could not be said to be unreasonable under the circumstances here disclosed. It is not irrational for a public board to deem it likely or possible that sources of contamination and germs of disease might have a causal connection with the presence of fishermen upon the ice or waters of a supply of drinking water. Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 693; Sprague v. Minon, 195 Mass. 581, 81 N. E. 284. The case of Austin v. Murray, 16 Pick. 121, upon which the defendant re lies, is quite distinguishable. Exceptions overruled.

(229 Mass. 321)

FOLLINS v. DILL.

ward the elevator shaft with the intention to
use the elevator as a passenger.
5. LANDLORD AND TENANT 44(1)-WAIVER
OF COVENANT BY LANDLord-Proof.

Waiver by a lessor of a covenant of the lease for his benefit may be proved by conduct as well as by the declarations of the party against whom the intentional relinquishment of a known right is asserted.

6. LANDLORD AND TENANT 44(1)-WAIVER
OF COVENANT OF LEASE-QUESTION OF FACT.
lord is a question of fact if there is any evidence
Waiver of a covenant of the lease by a land-
which warrants the finding.

7. PRINCIPAL AND AGENT 100(2)
OF AUTHORITY

PRINCIPAL.

LACK

NONRESPONSIBILITY OF

An unambiguous lease which covenants against the tenant's use of the building's freight elevator except for freight cannot be overridden by parol evidence of a contrary custom or usage established when the lease was made.

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Action by William Follins, administrator, against George A. Dill, trustee. There was verdict for plaintiff, and defendant excepts; the trial court directing that his report of a question for determination by the Supreme Judicial Court be presented by defendant with his bill of exceptions. Exceptions sustained, and judgment ordered entered for defendant.

(Supreme Judicial Court of Massachusetts. Daniel H. Coakley and W. Jennings PaSuffolk. Feb. 25, 1918.) tron, both of Boston, for plaintiff. Chas. S. VACATION OF ORDER Knowles, of Boston, for defendant.

1. COURTS 116(1) DISMISSING EXCEPTIONS DOCKET.

--

AMENDMENT OF

A trial court had power to vacate an order dismissing the exceptions, and thereupon to amend its docket in conformity with previous orders extending the time for filing exceptions which through an inadvertence had not been docketed.

BRALEY, J. [1] The trial court had pow. er to vacate the order dismissing the exceptions, and thereupon to amend its docket in conformity with previous orders extending the time for filing exceptions, but which

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

through inadvertence had not been docketed. Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N. E. 468. Having been seasonably filed and allowed, the defendant's exceptions under the amended record are properly before us. The jury could find that by falling or walking into the unguarded well of an elevator, designed for the transportation of freight, the plaintiff's intestate while in the exercise of due care suffered the injuries which after a period of conscious suffering caused his death, and that the accident would not have occurred if the operating equipment had been in proper repair. Follins v. Dill, 221 Mass. 93, 108 N. E. 929.

[2] The plaintiff, however, cannot recover unless the defendant had undertaken the duty of maintaining the elevator in a reasonably safe condition for the intestate's use. He went to the building to get waste paper from the third floor leased to one Aronson, who for his own benefit and to be relieved from accumulating rubbish, gave the paper as the jury could find to any one who "would come there and take it away."

[6] It is a question of fact if there is any evidence which warrants the finding. McNeil. v. American Bridge Co., 196 Mass. 56, 81 N. E. 651; Wood v. Blanchard, 212 Mass. 53, 98 N. E. 616. But a full examination of the record reveals no dealings between the defendant and the intestate, or knowledge by the defendant even if the jury disbelieved his evidence, that the lessee repeatedly violated this covenant, or that other tenants occupying under similar leases regarded it as being more honored by the breach than in the observance.

[7] While the janitor could be found to have known of what was going on, and did not remonstrate, he is not shown to have been authorized to modify the lease, and his implied acquiescence did not bind the defendant. The further argument, that the lease had been abrogated by custom, or usage of which the defendant should have known because of its long continuance, fails to point out how the undisputed terms of a contract can be transformed or eliminated by proof of a custom or usage which comes into existence after the contract has become binding, and is being executed. If urged upon the ground, that the custom or usage had been established when the lease was made, and the parties must be presumed to have contracted accordingly, the covenant is reduced to a mere collocation of ineffective words. It purports on its face to be an unambiguous instrument. The alleged countervailing custom, when read in, leaves the lease as if the covenant had not been inserted.

[3, 4] By the terms of the lease, the lessee "agreed to use the freight elevator for freight purposes only and will allow no person to ride on the same," and the intestate was not clothed with any greater rights than the lessee under whose implied invitation he came upon the premises. Baum v. Ahlborn, 210 Mass. 336, 338, 96 N. E. 671. It is certain from his own declarations as testified to by his sister, and the evidence of his companion the only witness of the accident, that when injured he was not intending to use the elevator for freight, as sufficient [8] It has long been settled that the lease waste paper to fill the bags he took with him cannot be thus overridden, and the defendbut left in the room, had not accumulated, ant's rights thereunder destroyed by parol and when he started for the elevator his pur- evidence. Shute v. Bills, 191 Mass. 433, 438, pose was to use it only as a means of transit 78 N. E. 96, 7 L. R. A. (N. S.) 965, 114 Am. to the street floor. But its use under such St. Rep. 631; De Friest v. Bradley, 192 Mass. circumstances having been prohibited by the 346, 353, 78 N. E. 467; Barrie v. Quinby, 206 covenant the intestate at most was a licen- Mass. 259, 264, 265, 92 N. E. 451. The excepsee, and the defendant's request for a direct- tions must be sustained, and it being suffied verdict should have been granted. Bil- ciently plain after two full trials on the merlows v. Moors, 162 Mass. 42, 37 N. E. 750.its, that the plaintiff cannot prevail, judgThe plaintiff in avoidance of this conclusionment for the defendant should be entered in relies on evidence from which she maintains accordance with St. 1909, c. 236. that while this provision had not been expressly annulled the jury could find, that it had been waived by permitting lessees and their invitees to use the elevator for the transportation of passengers when unaccompanied by freight.

[5] The covenant being for his benefit, the lessor doubtless could waive it, and waiver may be proved by conduct, as well as by the declarations of the party against whom the intentional relinquishment of a known right is asserted. Chace Elevator Co. v. Boston Towboat Co., 155 Mass. 211, 29 N. E. 470; Stone v. St. Louis Stamping Co., 155 Mass. 267, 29 N. E. 623; Brownville Slate Co. v. Hill, 175 Mass. 532, 56 N. E. 706.

So ordered.

(229 Mass. 335)
WAHLBERG v. BOWEN et al.
(Supreme Judicial Court of Massachusetts.
Middlesex. Feb. 26, 1918.)

1. MASTER AND SERVANT 358-INJURY TO
SERVANT-NEGLIGENCE OF THIRD PERSON-
ELECTION TO PROCEED UNDER WORKMEN'S
COMPENSATION ACT-EVIDENCE.

That a servant injured in the course of his employment by negligence of a third person did not pay the hospital to which he was taken for the first two weeks, for which time he was entitled to treatment under Workmen's Compensation Act, 8 15 (St. 1911. c. 751, pt. 3) as the time thereafter, is not evidence that he electamended by St. 1913, c. 448, § 1, but paid for ed to proceed for compensation under that act,