right." But on the defendant's evidence the contents upon being sacked and weighed having fallen short nearly fifty-seven bushels from the five hundred and sixty bushels called for by the bill of lading, he asked by the thirteenth request for a ruling, that if the jury found this car "contained a substantial quantity less than that called for by the invoice and bill of lading, the delivery of such car was defective, and under the terms of the contract and the circumstances of the case, such defective delivery constituted a material breach of the contract which justified the defendant in refusing to proceed further with the contract."

The request could not have been given. The assurances of the broker need not be considered, as no express or implied authority on the part of the plaintiffs empowering him to vary the contract is shown. Record v. Littlefield, 218 Mass. 483, 486. By its terms, all the potatoes could have been shipped at the same time, and barring any delay during transportation delivery would have followed in accordance with the shipment.

If however under the bills of lading with the draft attached drawn for the "amount of potatoes, less freight" payable to the bank therein designated at the defendant's place of business, and of delivery, each carload under a custom among shippers and receivers, of which there was evidence, was to be paid for separately, the breach caused by the alleged shortage is severable "giving rise to a claim for compensation, but not to a right to treat the whole contract as broken." Stewart v. Thayer, 168 Mass. 519. St. 1908, c. 237, § 45. Barlow Manuf. Co. v. Stone, 200 Mass. 158, 160. See Williston on Sales, §§ 466, 467.

The defendant furthermore having weighed and reshipped the number of bushels actually received after discovery of the shortage, could not restore the plaintiffs to their original position, and the right to rescind was lost. Miner v. Bradley, 22 Pick. 457, 458.

The fourteenth and fifteenth requests while not given in terms are well covered by the instructions. The judge after stating the custom appearing in evidence, that when "one car of a lot is short" the seller may be called on by the buyer to secure him against loss from a possible shortage in other cars comprised in the same contract, correctly instructed the jury in accordance with the proof, that, if the "custom was that when there was

shortage the parties would get together and come to some agreement, and if that is where the custom stops. then that would not go far enough to say that the defendant should be excused from performing his part of the contract. But if the custom went further and said that, failing to make such an agreement, the defendant would then have a right to give up his contract as to the rest of it, then that would present a question of fact in this case as to whether this defendant was justified in demanding security, and whether security was offered to him, and whether he refused it or not." A. J. Tower Co. v. Southern Pacific Co. 184 Mass. 472, 475, 476; S. C. 195 Mass. 157. And "unless the defendant is excused from receiving the three cars by reason of some custom which is invoked in this case, then the plaintiff would be entitled to recover whatever damage he suffer by reason of the failure of the defendant to perform his part of the contract." See National Contracting Co. v. Vulcanite Portland Cement Co. 192 Mass. 247, 255.

We have considered all the exceptions in so far as argued, and, finding no ground for reversal, the order must be

Exceptions overruled.

SUPPLEMENT.

OPINION OF THE JUSTICES TO THE SENATE.

It is not within the power of the Legislature to amend St. 1916, c. 98, § 6, which provides that any amendment of the Constitution adopted by a convention held in accordance with the provisions of that act “shall be submitted to the people for their ratification and adoption," by requiring that "All women entitled to register to vote for school committee shall be regarded as people within the meaning of the word as used in this section."

The "people" who have a right to vote upon the acceptance of any change in the Constitution adopted by a constitutional convention held in accordance with the provisions of St. 1916, c. 98, are those who have a right to vote for State officers and upon State questions under the requirements of the Constitution. The power of the Legislature to enact that women may be members of or vote for local or other subordinate boards of officers affords no ground for holding that the Legislature has the power to change the electorate established by the Constitution for conducting the affairs of the State.

In the year after the enactment of St. 1916, c. 98, providing for the holding of a constitutional convention if a majority of the voters at the next annual State election should vote that there should be such a convention, and after a majority of those voting on the question at such State election have voted that there shall be such a convention, it is too late for a branch of the Legislature to require the opinion of the justices of this court under c. 3, art. 2 of the Constitution as to effect of St. 1916, c. 98, and as to the validity and constitutionality of its provisions.

THE following order was passed by the Senate on March 26, 1917, and on March 30, 1917, was transmitted to the Justices of the Supreme Judicial Court. On April 16, 1917, the Justices returned the answer which is subjoined.

WHEREAS, there is pending before the General Court a certain bill, numbered House, 797, which would amend section six of chapter ninety-eight of the General Acts of the year nineteen hundred and sixteen, a copy whereof is submitted herewith, and WHEREAS, there exist grave question and uncertainty as to the constitutional powers of the General Court to enact the said bill, it is

ORDERED, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court upon the following important questions of law:

First. Has the General Court the constitutional power to enact legislation in amendment of chapter ninety-eight of the General Acts of the year nineteen hundred and sixteen in any manner not specifically affecting the issue submitted under said bill to the voters and decided by them in the affirmative, namely, whether there should be a convention to revise, alter or amend the Constitution of the Commonwealth?

Second. Has the General Court, under the power whereby legislation was enacted enabling women to vote for the nomination and election of members of school committees or otherwise the right to enact legislation enabling women to vote on the acceptance or rejection of the revisions, alterations or amendments of the Constitution of the Commonwealth which may hereafter be adopted by the Constitutional Convention and submitted to the people under the provisions of chapter ninety-eight of the General Acts of the year nineteen hundred and sixteen?

Third. Has the General Court constitutional power to define the word "people" as used in section six of said chapter ninetyeight?

Fourth. Would such definition be binding upon the Constitutional Convention, if enacted?

Fifth. Will any proposed revisions, alterations or amendments of the Constitution of the Commonwealth submitted under the terms of said section six, by the Constitutional Convention to the people, have effect if accepted by the people, as part of the Constitution of the Commonwealth?

Sixth. Would such proposed revisions, alterations and amendments have effect as part of the Constitution of the Commonwealth if submitted to and accepted by a constituency, either greater or less than the entire body of those persons qualified to vote under the provisions of the present Constitution of the Commonwealth?

Seventh. Are the provisions of section six of chapter ninetyeight of the Acts of the year nineteen hundred and sixteen which purport to give to the Constitutional Convention power to submit its proposed revisions, alterations or amendments of the Constitution of the Commonwealth to the people, with the effect

that if accepted by the people said revisions, alterations and amendments shall become part of the Constitution of the Commonwealth, which power said House Bill, No. 797 seeks to amend, within the constitutional power of the General Court to enact?

In view of the importance of the above questions, the Honorable the Justices of the Supreme Judicial Court are respectfully requested to receive such briefs or written arguments as may be presented by order of the Senate bearing on the above questions.

House Bill No. 797, referred to above, was as follows:

An Act Defining the word "People" as used in Section Six, Chapter Ninety-eight, General Acts of the Year Nineteen Hundred and Sixteen.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Chapter ninety-eight, General Acts of the year nineteen hundred and sixteen is hereby amended by adding to section six thereof the following:- All women entitled to register to vote for school committee shall be regarded as people within the meaning of the word as used in this section.

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of March 26, 1917, a copy of which is hereto annexed, and respectfully submit this opinion:

The first four questions, some in general and others in specific forms of expression, are construed as intended to ask in substance whether the General Court has the power to amend St. 1916, c. 98, as proposed by the accompanying House Bill No. 797. St. 1916, c. 98, provides for the holding of a convention to revise, alter or amend the Constitution of the Commonwealth if a majority of those voting on the question vote in favor. It is common knowledge that proclamation has been made to the effect that a majority of the votes cast were in favor of holding the convention. It is enacted in § 6 of that act that "Any such revision, alterations or amendments, when made and adopted by the said convention, shall be submitted to the people for their ratifica39

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