bought and sold in car lots, four carloads of any error in above please advise us by wire," immediately preceding the defendant's signature, admit of no other satisfactory construction. It could not be ruled as matter of iaw, that if the "confirmation" were treated as an offer, it became a binding agreement from the failure of the plaintiffs to reply. The jury under all the circumstances were to say whether the plaintiffs' silence amounted to an assent. Quintard v. Bacon, 99 Mass. 185; Borrowscale v. Bosworth, 99 Mass. 378; Metropolitan Coal Co. v. Boutell Trans. & Towing Co., 185 Mass. 391, 395, 70 N. E. 421. If the jury found the oral contract had not been established, then if accepted by the plaintiffs, the "confirmation" would constitute the contract. Metropolitan Coal Co. v. Boutell Trans. Co., ubi supra. But if they found the oral contract had been proved, the further question, whether that contract had been mutually modified, rescinded or abandoned, was a question of fact under suitable instructions. Hanson & Parker v. Wittenberg, 205 Mass. 319, 326, 91 N. E. 383, and cases cited. [9, 10] The defendant's next contention goes on the assumption that the "confirmation" is the contract. If so, the rules of the Boston Chamber of Commerce were incorporated by reference, whereby if the goods are not according to the warranty, the "seller shall be notified not later than the following business day after arrival of the car at destination, and be given an opportunity to order inspection if so desired by him." And as the notice given was not within the designat [4] But even if the draft for the price attached to the bill of lading, which the plaintiffs indorsed to the vendee, was with the freight charges paid by him, no estoppel barring rescission arises. The jury were to decide whether the warranty had been waived by an acceptance of damaged goods, consid-ed time, the plaintiffs cannot recover. But ered in connection with the undisputed fact, that notice was given to the defendant of the breach, with a claim for reclamation. Trimount Lumber Co. v. Murdough, 118 N. E. 280, and cases cited. What has been said rests upon the oral contract, which notwithstanding the defendant's denial, the jury could find resulted from the conversation by telephone between the contracting parties. The defendant however contends that the contract was in writing. The credibility of the witnesses was for the jury. the answer is that on ample evidence the jury could say that the oats were in a damaged condition before the train entered Manchester. The buyers moreover were not bound to take the oats in whatever condition they might be in, and under appropriate instructions it could have been found that the word "arrival" appearing in the "confirmation" even if read with the rules was understood, and intended by the parties to mean, that until the car had been detached and placed on a siding where it could be reached [5-8] It could be found that even if the ex- inspected and unloaded in the course of the hibit referred to in the record as a "confir- carrier's business and notice given to the mation," with the invoices of weight and con- plaintiffs or to their vendee, possession had dition had been mailed by the defendant and not been taken and the warranty had not received by the bookkeeper, yet the plaintiffs been waived or discharged. Alden v. Hart, were never shown the correspondence or 161 Mass. 576, 37 N. E. 742; Bachant v. B. & made acquainted with the contents. If this M. R. R., 187 Mass. 392, 393, 73 N. E. 642, 105 exhibit is examined, the word "confirmation" Am. St. Rep. 408; Garvan v. N. Y. C. & H. is not found. It purports to be a memoran- R. R. R., 210 Mass. 275, 280, 96 N. E. 717; dum of a sale of two cars "straight clipped Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 white oats," one of which is the car in ques- L. Ed. 393. A finding also would have been tion, with a statement of the price, warranty warranted that if at first the carrier made a and terms of shipment. It does not purport mistake in placing the car where it still reto confirm the oral contract. It is of itself mained inaccessible, upon rectification of the an offer to sell which upon acceptance by error, inspection immediately followed, with the offerees would become a binding sale. notice to the defendant the following day by The words, "This is a contract and will be telephone of the condition of the oats and of considered mutually binding unless we are nonacceptance. It is manifest without fur Exceptions from Superior Court, Middlesex Action by Jonas H. Vaughan against William P. Mansfield. There was a verdict for plaintiff, and defendant excepts. Exceptions sustained. and the inferences therefrom which the jury | dence to prove the payment was made by defendcould draw the presiding judge could not ant, by his wife, or by any one who had auproperly rule that the defense had been thority to act for him. maintained. We perceive no reversible error in so far as argued to the admission of evi-County; P. M. Keating, Judge. dence to which the defendant excepted, and the plaintiffs having been entitled to go to the jury on every material aspect of the case the verdict cannot stand. The defendant, however, if this is the result raises no question of misjoinder. If for want of privity the plaintiff Reid could not have prevailed in an independent action, the report states, that the suit is to be considered as if instituted in the name of the Cavanaughs for his sole benefit, and by agreement of parties if the case should have been submitted to the jury he is to have judgment for the amount therein stipulated with interest and costs. Bryne v. Dorey, 221 Mass. 399, 406, 109 N. E. 146. So ordered. (229 Mass. 352) VAUGHAN v. MANSFIELD. (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 26, 1918.) The charge as to defendant's liability for necessaries furnished for wife and minor child was: "That a husband is required to furnish necessaries to his wife and minor child and he is liable for the necessaries furnished to his wife and child when they live with him, and if the plaintiff's services were necessary to the defendant's wife and minor child, the defendant would be liable for their reasonable cost." Elmer E. Spear, of Everett, for plaintiff. Chas. H. Stebbins and Alfred E. McCleary, both of Boston, for defendant. PIERCE, J. It is not in dispute that the medical services for which the plaintiff seeks compensation were required by, and were rendered to, the wife and minor child of the defendant as claimed. The evidence war1. HUSBAND AND WIFE 235(3)—LIABILITY ranted a finding that the defendant had seen FOR MEDICAL SERVICES-ACTION-INSTRUC- the plaintiff at the defendant's house and that TION. he knew the visits there were made by the plaintiff, as a physician, in response to calls from the wife of the defendant. In a physician's action for medical services, where there was evidence that plaintiff had sent bills from time to time to defendant's residence through the mail, and there was no evidence that defendant ever had forbidden plaintiff [1] The defendant offered a receipt for to render, or defendant's wife or child in plain- twenty-five dollars, tending to prove that he tiff's presence to receive, plaintiff's medical serv- had paid an account which included as its ices on defendant's account, the charge that a last item the first item for services in the husband is required to furnish necessaries to his wife and minor child, and is liable for the neces- plaintiff's account. There was evidence that saries furnished them when they live with them, the plaintiff had sent bills from time to time and that if plaintiff's services were necessary to the defendant's residence, through the to plaintiff's wife and minor child, defendant would be liable for their reasonable cost, was. sufficiently favorable to defendant, and the court properly refused to rule that defendant was not liable to plaintiff for the bill, even if for necessaries furnished for his wife and minor child, unless defendant refused or failed or neglected to furnish them himself. 2. HUSBAND AND WIFE 234 SERVICES WIFE'S AUTHORITY MEDICAL - REBUTTAL mail. There was no evidence that the defendant ever had forbidden the plaintiff to render, or the wife or child in the presence of the plaintiff to receive, the services of the plaintiff, on his account. Alley v. Winn, 134 Mass. 77, 78, 45 Am. Rep. 297; Dolan v. Brooks, 168 Mass. 350, 352, 47 N. E. 408; Debenham v. Mellon, 6 App. Cas. 24; Harrison v. Grady, 13 L. T. N. S. 369; Baker v. had ever forbidden plaintiff physician to render, Carter, 83 Me. 132, 21 Atl. 834, 23 Am. St. or defendant's wife or child in plaintiff's pres- Rep. 764; Auringer v. Cochrane, 225 Mass. ence to receive, plaintiff's medical services on 273, 114 N. E. 355. It follows that the defendant's account, the presumption of the agen-charge in this regard was sufficiently favorcy of defendant's wife to pledge his credit for able to the defendant and disposes of the medical services reasonably necessary for her or the family is not rebutted by proof that defendant privately had instructed her never to run any bills, and from time to time had given her money to pay all expenses when she told him she needed it. In the absence of evidence that defendant 3. LIMITATION OF ACTIONS 197(3) - PAYMENT AS ACKNOWLEDGMENT OF LIABILITYSUFFICIENCY OF EVIDENCE. exception of the defendant to the refusal to rule "that the defendant was not liable to the plaintiff for this bill, even if it was for necessaries furnished to his wife and minor child, unless the defendant refused or failed or neglected to furnish them himself." [2] Under these circumstances the presumption of the agency of the wife, which is inferred from her relation to her husband as manager of the household, to pledge her husband's credit for medical services that are In a physician's action for services rendered defendant's wife and minor child, plaintiff's testimony, in answer to the defense that the action was barred by the statute of limitations, that he had received a payment of $5 on the account, was insufficient to support finding of an acknowledgment on the part of defendant of an ex- reasonably necessary for her or the family, isting liability, where plaintiff offered no evi- is not rebutted by proof that the defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes privately had instructed his wife never to run any bills, and had given her money from time to time to pay all expenses when she told him she needed it. [3] In answer to the defense that the action is barred by the statute of limitations, the plaintiff testified "he had received a payment of five dollars" on the account in July, 1908. He offered no evidence to prove the payment was made by the defendant, by the wife of the defendant, or by any one who had authority to act for the defendant. We are of opinion that this testimony went no farther than proof of payment by a stranger, and was insufficient as evidence for a jury to find an acknowledgment on the part of the defendant of a subsisting liability; and we think the jury should have been so instructGillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320; Butler v. Price, 115 Mass. 578. See Palethorp v. Furnish, 2 Esp. 509n. ed. Exceptions sustained. (229 Mass. 329) COMMONWEALTH v. CLOSSON. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 25, 1918.) 1. CRIMINAL LAW 21-HIGHWAY REGULATIONS MISDEMEANOR BY VIOLATION-GUILTY MIND. A. C. Webber, Asst. Dist. Atty, of Boston, for the Commonwealth. Fredk. T. Conley, of Boston; for defendant. BRALEY, J. [1, 2] The defendant does not contend that the rules and regulations of the respective commissioners of parks and of streets had not been duly promulgated, or were not in force at the time stated in the complaints, or that he did not violate those rules, which require the driver of vehicles to keep to the right-hand side of the way, and when passing on his left to an intersecting street he must before turning proceed to the right until beyond the center of the intersecting street. It is immaterial that he was not actuated by any criminal intent. In prosecutions for misdemeanors created by statute under the exercise of the police power, proof of a guilty mind or corrupt purpose is not essential to a conviction. Commonwealth v. N. Y. C. & H. R. R. R., 202 Mass. 394, 88 N. E. 764, 23 L. R. A. (N. S.) 350, 132 Am. St. Rep. 507, 16 Ann. Cas. 587. But by the plea to the jurisdiction, requests for rulings, and exceptions to a portion of the instructions, his defense rests upon the ground, that being employed as a nail carrier using a vehicle for the delivery of mail, he is immune from prosecution and punishment. The designated streets or ways are not however instrumentalities cre In a prosecution for misdemeanor created ated by the general government, where "exby statute under the exercise of the police pow-emption from state control is essential to er, as a violation of highway regulations, proof the independent sovereign authority of the of guilty mind or corrupt purpose is not essen- United States within the sphere of their del tial to conviction. 2. CRIMINAL LAW 97(4)-REGULATION OF A United States mail carrier, using a vehicle for the delivery of mail, is liable for violating the statute of the commonwealth, the bylaws and ordinances of the city of Boston, the rules and regulations of the board of park commissioners, and the rules and regulations of the street commissioners of the city, though the streets are post roads under Act Cong. March 1, 1884, c. 9, 23 Stat. 3 (U. S. Comp. St. 1916, § 7457), since they are public ways, laid out and maintained by the commonwealth, which has the exclusive power not only of alteration and discontinuance, but to make and enforce reasonable regulations for their use. egated powers." If they were the defend. * * driv Exceptions from Superior Court, Suffolk c. 321, § 201, 35 Stat. 1127 (Comp. St. 1916, County; John A. Aiken, Judge. § 10371), yet the ways remain public ways Fred L. Closson was convicted of violat- laid out and maintained by the commoning a statute of the Commonwealth, and by- wealth, which has the exclusive power not laws and ordinances of the City of Boston, only of alteration, and of discontinuance, and the rules and regulations of the Board but to make and enforce reasonable regulaof Park Commissioners, as to driving a ve- tions for their use. Nor do the facilities hicle other than on the right-hand side of thereby afforded for transportation of the Commonwealth Avenue, and of violating the mails confer extraordinary rights upon mail traffic rules and regulations of the Street carriers to use the ways as they please, or Commissioners of the City by driving a ve- necessarily, or impliedly do away with the hicle on Commonwealth Avenue, and, on power of supervision and control inherent turning to the left into an intersecting in the state. Commonwealth v. Breakwastreet, not passing to the right of and be ter Co., 214 Mass. 10, 100 N. E. 1034; Postal yond the center of such street before turn- Telegraph Cable Co. v. Chicopee, 207 Mass. ing, and he excepts. Exceptions overruled. 341, 350, 93 N. E. 927, 32 L. R. A. (N. S.) Exceptions from Superior Court, Hampden County; John A. Aiken, Judge. Action by Harry A. Wright against the Maynard Corset Company. There was verdict for plaintiff, and defendant excepts. Exceptions overruled. fendant. 997; Dickey v. Turnpike Co., 7 Dana (Ky.) 113; Searight v. Stokes, 3 How. 151, 11 L. Ed. 537; Price v. Pennsylvania R. R., 113 U. S. 221, 5 Sup. Ct. 427, 28 L. Ed. 980; St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380; Martin v. Pittsburg & Lake Erie R. R., 203 U. S. 284, 27 Sup. Ct. 100, 51 L. Ed. 184, 8 Green & Bennett, of Springfield, for plainAnn. Cas. 87. The use of the streets by tiff. John W. Sheehan, of Worcester, for detravelers of every description is not prohibited. It is only the mode of operation by drivers of vehicles which is regulated, and being reasonable, because well adapted for the security and protection of all travelers, the rules are constitutional, and their violation is punishable as a criminal offense. Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264, 127 Am. St. Rep. 513; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; Commonwealth v. Feeney, 221 Mass. 323, 108 N. E. 1068. The plea to the jurisdiction, and the exceptions accordingly must be overruled. So ordered. (229 Mass. 343) WRIGHT v. MAYNARD CORSET CO. (Supreme Judicial Court of Massachusetts. Hampden. Feb. 26, 1918.) 1. DAMAGES 120(1)-SALE OF GOOD WILL AND TRADE-MARK-BREACH-DAMAGES. PIERCE, J. In January, 1912, the plaintiff and defendant entered into negotiations for the sale to the defendant of the business, good will, and registered trade-mark "Cresco" then owned by the Cresco Corset Company, a corporation organized, incorporated, owned and controlled by the plaintiff. The "Cresco" corset is a corset with a disconnected waist, which any one may make if use is not made of the trade-mark "Cresco" in connection with its sale. The defendant is a corporation, and at the time of the negotiations and contract which followed was engaged in the manufacture and sale of "standard" as distinguished from "specialty" corsets, although it was familiar with "Cresco" corsets, having manufactured them for a considerable time for the plaintiff. On January 31, 1912, the Cresco Corset Company conveyed to the defendant the business and good will of the corporation, includWhere defendant purchased from plaintiff ing the registered trade-mark "Cresco," and the good will of his business as a manufacturer of specialty corsets and the registered trade- on the same day an instrument under seal, mark "Cresco" owned by plaintiff, and plain-"for and in consideration of the mutual covetiff covenanted not to engage in the manufac- nants and agreements," recited: ture or sale of corsets, and defendant agreed that it would pay him royalties on sales by it of all corsets branded "Cresco" until he had received $7,500, that it would keep accurate books of account, and that it would use its utmost endeavors to manufacture and sell such corsets, defendant's covenant was an affirmative independent agreement for breach of which plaintiff may recover as damages such sum of money as would have been due in royalties if the covenant had been performed. 2. EVIDENCE 515- OPINIONS METHODS. BUSINESS "The first party [the plaintiff] hereby gives, grants and conveys to the second party [the defendant] all his right, title and interest in and to the manufacturing and selling of corsets, and good will thereof, and further covenants and agrees that so long as the second party observes and fulfills the terms and provisions of this agreement he will not engage in, directly or indirectly, the manufacture or sale of corsets. The second party thereby agrees that it will pay the first party royalties upon the sales made hereafter by the second party of all corsets branded 'Cresco' having a disconnected waist, In the seller's action for breach of such and will continue to pay said royalties covenant, the seller's testimony as to what was until the first party has received from said roythe best way to sell the corsets, how they should alties a total sum of seven thousand five hunbe sold, and how they should be gotten on the dred ($7,500) dollars; * * [that it] will keep market was admissible, the corset being a spe- accurate books or account showing the number cialty corset, not sold by common methods, of such corsets sold by the second party, * * while the jury could not be presumed to have and will render account of such sales in monthly knowledge of unusual or uncommon forms of statements. * The second party hereby trade bargaining. acknowledges the rights of the first party to corsets having a disconnected waist, and covenants and agrees that until such time as the full amount of the royalties herein agreed upon shall be paid, that it will use its utmost endeavors to manufacture and sell such corsets." 3. APPEAL AND ERROR 280-EXCEPTIONS BELOW-FAILURE TO PURSUE EXCEPTIONS. Where defendant excepted to the admission of evidence, and the judge said he thought opposing counsel was right, and would let the evidence stay in subject to exception, and would talk about it later, and the matter was not again called to the attention of the judge, and he instructed the jury in accordance with defendant's contention, the exceptions must be overruled. 4. APPEAL AND ERROR 977(5) — REVIEW DISCRETION OF COURT-REFUSAL OF NEW TRIAL. Refusal to grant new trial is not a matter of exception. Between the date of the contract and July 1, 1913, the defendant reported sales upon which the total royalties due the plaintiff and unpaid amounted to $66.62. Within this period the plaintiff alleges the defendant violated its agreement to "use its utmost endeavors to manufacture and sell such corsets" by doing "practically nothing" to prosecute the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes business, and claims therefor damages measured by the royalties it should have received had the contract been performed according to its true intent. as would have been due and payable had the covenant been kept and performed. [2] We think the exception to the question to Wright, "What is the way to sell these Cresco corsets? How should they be sold? How should they be got on the market?" and to his answer, must be overruled. Wright was an expert in the sale of the "Cresco" corsets. The "Cresco" corset is a "specialty" corset which is sold on the market by methods not common to the sale of standard corsets. The jury could not be presumed to have knowledge of unusual and uncommon forms of trade bargaining. Such knowledge was helpful, if not necessary, to assist the jury in determining whether the defendant had used its utmost endeavor to manufacture and sell the "Cresco" corset. On the other hand, the defendant contends, that the sole and only effect of its violation of the agreement is to relieve the plaintiff of his covenant and agreement "that so long as the second party observes and fulfills the terms and provisions of this agreement he will not engage in, directly or indirectly, the manufacture and sale of corsets." In support of this contention the defendant argues that the provision of the contract which reads, "The second party hereby acknowledges the rights of the first party to corsets having a disconnected waist," out of an abundance of caution, was inserted "to show that in the event of a breach of the conditions of this contract, the plaintiff had a right to make such corset," and that the provision "that until such time as the full amount of the royalties herein agreed upon shall be paid, that it will use its utmost endeavors to manufacture and sell such corsets," was intended as a limitation upon the right of the defendant to go ahead indefinitely manufacturing and sell-presiding judge said: ing corsets with a disconnected waist without stamping them with the trade-name "Cresco," and thereby reap whatever benefit might result, without being in any way liable to the plaintiff; while the plaintiff during all the time would be prohibited from engaging, directly or indirectly, in the manufacture and sale of the corsets. [1] If we assume the foregoing provisions of the contract were inserted to define the obligation which the party of the second part was required by its covenant to observe and fulfill as a condition precedent to its right to enforce the covenant of the party of the first part not to engage in the manufacture and sale of corsets, we are none the less of the opinion that the covenant of the defendant, to use its utmost endeavors to manufacture and sell such corsets, is also an affirmative, and independent agreement, which requires and calls for the exercise of sound judgment and business energy and activity, in the prosecution of the business to which the agreement relates, to the end that the plaintiff may realize within a reasonable time the most profitable returns in the way of royalties for. "Cresco" corsets sold, which is consistent with a prudent and sagacious conduct of the particular business of the defendant. We do not agree with the contention of the defendant that the agreement to pay royalties and "to continue to pay said royalties" until from said royalties the party of the first part has received a total sum, restricts the measure of damages for breach of the covenant "to use its utmost endeavors" to a sum of money then due and payable to the plaintiff as royalties. We think the measure of damages is such a sum of money in royalties [3] The exceptions to the questions and answers as to what was said before the execution of the agreement as to the right of the plaintiff to a corset having a disconnected waist, and also as to whether anything was said about what corsets should be branded “Cresco" must be overruled. In regard to the admission of these questions and answers the I will let the evidence stay in subject to your ex- tention of the judge, and the judge in his the contention of the defendant. [4] The refusal to grant a new trial is not a matter of exception. We have considered the exceptions in their order as argued by the defendant, and find no error. Exceptions overruled. (229 Mass. 316) MacAUSLAND v. FULLER. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 18, 1918.) 1. JURY MENT. 16(6) — JURY TRIAL — GARNISH There is no provision, in Rev. Laws, c. 189, §§ 45-49, for jury trial in a proceeding by scire facias to determine the amount which by trustee process against the principal defendshall be paid by the trustee in an action begun ant. 2. GARNISHMENT 189 SCIRE FACIASIDENTITY OF PROCEEDINGS WITH ACTION BY TRUSTEE PROCESS. Action by trustee process and writ of scire facias, under Rev. Laws, c. 189, §§ 45-49, to determine the amount to be paid by the trustec, are part of one continued and connected course of proceedings. 3. GARNISHMENT 178-TRUSTEE PROCESSDETERMINATION OF AMOUNT ACTUALLY DUE FROM TRUSTEE. Where the trustee in an action by trustee process, having answered no funds, was interrogated as provided in Rev. Laws, c. 189, § 11, and for failure to answer certain interrogatories |