business of carriage repairing, on his own account, but was unable to do so. On crossexamination plaintiff was asked if he was able to get credit to carry on the business, the defendant's counsel stating that he put the question for the purpose of showing that plaintiff's personal reputation was such that he could not get credit. The question was excluded, and defendant excepted. Hesseltine & Hesseltine, for plaintiff. W. M. Noble, for defendant. BARKER, J. The evidence offered and excluded upon the cross-examination of the plaintiff was, in effect, that his personal reputation as to credit among dealers was so poor that he could not get credit to carry on the business in which he attempted to work after his wrongful discharge from the defendant's service. Assuming that the defendant was entitled to show that the plaintiff might have earned more money than he did between the time of his discharge and the time of trial, evidence of the plaintiff's poor reputation for credit among dealers did not tend to show that he could have succeeded in the business, and it was rightly excluded, as it might have had a tendency to prejudice the jury against the plaintiff. If it did not have that effect, its only tendency would seem to be to enhance the plaintiff's damages. We do not see how the defendant was harmed by the exclusion of the evidence. The exception to the refusal to instruct the jury to the effect that if the plaintiff, after his discharge, began to do business on his own account, he could not recover damages relating to the period of time after he so entered into business, was waived at the argument. The remaining question is whether or not the jury should have been allowed to assess damages for the period of time subsequent to the trial. The plaintiff was hired for five years from April 25, 1892, and was discharged about the middle of July, 1892. He brought suit on November 10, 1892, and the verdict was rendered on March 14, 1894. The verdict assessed at the sum of $3,180.95 the plaintiff's whole damages for breach of the contract for hiring, and stated that of the amount $1,392.95 was the damage to the time of trial. The defendant concedes that the plaintiff is entitled to recover damages for an entire breach, so far as such damages can be ascertained, but contends that, as the trial occurred before the expiration of the contract period, it was impossible for the jury to ascertain or assess the damage for the unexpired portion of the contract period subsequent to the time of trial. In support of this contention the defendant cites the cases of Coleburn v. Woodworth, 31 Barb. 381; Fowler v. Armour, 24 Ala. 194; Litchenstien Brooks, 75 Tex. 196, 12 S. W. 975; and Gordon v. Brewster, 7 Wis. 355,-in which cases it seems to have been held that, if the suit is begun before the expiration of the contract V. period, damages can only be allowed to the time of the trial. He asserts that in the case of Howard v. Daly, 61 N. Y. 362, in which full damages were given, the writ was | brought after the expiration of the contract period. On the other hand, it has been held in Vermont that, if there has been such a breach as to authorize the plaintiff to treat it as entirely putting an end to the contract, he may recover damages for an entire nonfulfillment, and is not limited to what he has actually sustained at the time of his bringing suit or the time of trial. Remelee v. Hall, 31 Vt. 582. And in Maine, in an action for breach of a contract for hiring, brought before the expiration of the contract period, it was held that the just recompense for the actual injury sustained by the illegal discharge was the stipulated wages, less whatever sum the plaintiff actually earned, or might have earned by the use of reasonable diligence. Sutherland v. Wyer, 67 Me. 64. Such would seem to be the rule in Pennsylvania. See King v. Steiren, 44 Pa. St. 99; Chamberlin v. Morgan, 68 Pa. St. 168. And the defendant concedes that such is the rule in England. We do not go into an exhaustive consideration of the decisions upon the question, as we consider it to have been settled in favor of the ruling given at the trial, by our decisions. Paige v. Barrett, 151 Mass. 67, 23 N. E. 725; Blair v. Laflen, 127 Mass. 522; Dennis v. Maxwell, 10 Allen, 138; Jewett v. Brooks, 134 Mass. 505. See, also, Parker v. Russell, 133 Mass. 74; Amos v. Oakley, 131 Mass. 413; Warner v. Bacon, 8 Gray, 397, 408; Drummond v. Crane, 159 Mass. 577, 581, 35 N. E. 90. The plaintiff's cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff's working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages, which may be larger or smaller because of such uncertainties, are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matters involved in the prognostication are to be considered by the jury, and from the evidence in each case they are to form an opinion upon which all can agree, and to which, unless it is set aside by the court, the parties must submit. The liability to have the damages which he inflicts by breaking his contract so assessed is one which the defendant must be taken to have understood when he wrongfully discharged the plaintiff, and, if he did not wish to be subjected to it, he should have kept his agreement. Exceptions overruled. (163 Mass. 189) MCINTYRE v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1895.) INJURY TO EMPLOYE-DEFECTIVE APPLIANCES. Plaintiff, while using due care, was injured by the breaking of a rotten stake used to hold a load upon a platform car and assist brakemen in crossing from car to car. Held, that the defendant railroad company was liable, though there was evidence that it had furnished sound lumber for stakes, and men to prepare them. Exceptions from superior court, Suffolk county; J. B. Richardson, Judge. Action of tort by John C. McIntyre against the Boston & Maine Railroad. The court ruled that upon the evidence the action could not be maintained. Plaintiff excepted. Exceptions sustained. Bordman Hall and R. W. Goding, for plaintiff. Solomon Lincoln and Thomas Hunt, for defendant. BARKER, J. There was evidence from which the jury might find that the plaintiff, while in the discharge of duty, and using due care, was injured by the breaking of a weak, knotty, worm-eaten and rotten stake, which was unfit for the use to which it had been put, of holding a load of railroad ties upon a platform car, and from the description of the stake it would be competent for a jury to find that the putting of such a stake to such a use was an act of negligence. The use of the stake as a means of facilitating the passage of a brakeman from car to car of the train made it the duty of the defendant to use due care to see that it was suitable for that purpose. Coates v. Railroad Co., 153 Mass. 297, 26 N. E. 864. A section master of the defendant road, who was an inspector of ties, testified that the stakes belonged to the defendant, and were placed in position by men in its employment; that the defendant bought the lumber of which the stakes were made, and that it was sawed up and the cars were staked under his direction; that the defendant supplied lumber enough, and good lumber enough, for the purpose of stakes, and men enough to prepare them; and that sometimes, but not often, stakes were returned with a car, but usually they were lost. The accident happened in New Hampshire, and three decisions of the supreme court of that state were in evidence as showing the law of New Hampshire. These were Fifield v. Railroad Co., 42 N. H. 225; Hanley v. Railroad Co., 62 N. H. 274; and Nash v. Steel Co., Id. 406. These decisions do not show that the doctrine that intrusting to suitable servants the duty of furnishing suitable appliances for the work does not discharge an employer from the consequences of negligence on the part of such servants in providing safe and suitable appliances is not the law of New Hampshire. That question was not raised or decided in the decisions which were in evidence, and we must assume that the law of New Hampshire upon the question is the same as our own. The case is not one where an implement designed for repeated use has been weakened and made unfit for further service by such use; it is rather the case of the furnishing of an implement never fit for use, and evidently unfit. Such a stake could not, without negligence, have been placed where stakes were kept to be used for the purpose to which this was put. We need not inquire whether, if it had been taken from a number of sound and suitable stakes provided for that purpose by a workman whose duty it was to equip the car, the careless taking of this stake would have been negligence of a fellow workman, the risk of which the plaintiff must stand, or whether negligence in equipping the car with stakes is something for which the defendant is re sponsible, whether it intrust the work to one person or another. See Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. 407. The defendant's evidence falls short of showing that there was a sufficient supply of sound and suitable stakes. It shows only that the defendant supplied lumber enough to be sawed, and good lumber enough, for the purpose, and men enough to prepare the stakes. That this stake was among those so prepared would justify a finding that it was there through the neligence of the men whose duty it was to prepare them, and for that negligence, at least, the defendant was answerable. Exceptions sustained. (163 Mass. 210) FREEMAN v. HUNNEWELL et al. (Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1895.) ACTION FOR PERSONAL INJURIES-FALL FROM FREIGHT ELEVATOR-LIABILITY OF OWNER. Plaintiff, a boy 15 years old, was an employé of tenants occupying the second and third floors of a building owned by defendants, in which there was a freight elevator for the use of all the tenants, of which defendants retained the control. When the elevator was at rest on the second floor, an open space, 15 inches wide, existed between the platform of the elevator and the rear wall of the building, which formed one side of the elevator well, and plaintiff was injured by falling through this open space. The elevator was in the same condition as when plaintiff's employers became defendants' tenants, and plaintiff knew of the existence of the hole. There was no evidence of negligence on the part of defendants, and no evidence of due care on the part of plaintiff. Held, that defendants were not liable. Exceptions from superior court, Suffolk county; J. B. Richardson, Judge. Action by William T. Freeman, by next friend, against F. W. Hunnewell and others, trustees. Judgment for defendants, and plaintiff excepts. Exceptions overruled. J. A. McGeough, for plaintiff. Clapp & Glover, for defendants. KNOWLTON, J. The defendants are owners of a building five stories high, in which is a freight elevator for the use of tenants, which the defendants retain in their control and keep in repair. The rear wall of the building forms one side of the elevator well, and above the third floor it is built out into the room about 15 inches, so that the well is smaller above the second story than in the first two stories of the building. The elevator is an open platform, built of such size as to pass up and down in the upper stories, where the well is narrowed by the construction of the wall; and when the elevator is at rest at the second floor there is an open place 4.7 feet long and 15 inches wide between the platform of the elevator and the rear wall of the building, which forms one side of the well. The plaintiff, a boy 15 years of age, employed by the tenants who occupied the second and third floors of the building, had been accustomed to use the elevator daily for four months. The common way of using it was to ride up and down upon it with the freight which was carried. He was injured by falling through this open space at the second floor of the building between the platform of the elevator and the wall. His rights upon the elevator were only those of his employers, who were tenants of the defendants. When they hired the building, the elevator was in the same condition as at the time of the accident. They having hired their tenement with an elevator so constructed, the defendants did not owe them nor their employés any duty to change this construction. Woods v. Cotton Co., 134 Mass. 357; Quinn v. Perham, 151 Mass. 162, 23 N. E. 735; Moynihan v. Allyn, 162 Mass. 38 N. E. 497. There was no evidence of negligence on the part of the defendants. There was no evidence of due care on the part of the plaintiff. The accident happened between 1 and 2 o'clock in the afternoon. The plaintiff knew of the existence of the hole, and must have known that there was danger of falling through it if he did not keep his feet upon the platform. There was nothing to show that he used any care to keep from falling, or that the accident happened from any cause other than his own inattention and negligence. Exceptions overruled. (163 Mass. 202) SEAVER v. WESTON. (Supreme Judicial Court of Massachusetts. Middlesex. March 2, 1895.) ACTION BY ADMINISTRATOR-SALE OF CHATTELSDECEDENT'S DEBT AS SET-OFF-RATIFICATION BY ADMINISTRATOR. 1. An administrator who contracts in his ɔwn name to sell chattels belonging to the estate may sue in his own name for the price. 2. One who contracts to purchase from an administrator, as an individual, chattels belonging to the estate, cannot, in an action for the price, set off a debt due him from decedent. 3. An administrator may ratify the act of decedent's wife in indorsing decedent's name, while he was unconscious, on a note payable to his order. Exceptions from superior court, Middlesex county; Henry N. Sheldon, Judge. Action by Ezra T. Seaver against Harold Weston for goods sold and delivered. There was a finding for plaintiff, and defendant excepts. Exceptions overruled. J. M. Marshall, John C. Burke, and W. S. Marshall, for plaintiff. D. C. Linscott and C. P. Weston, for defendant. KNOWLTON, J. At the time of the death of the plaintiff's intestate, George P. Hardy, there was a large quantity of unmanufactured lumber in his possession, which passed to the plaintiff by virtue of his appointment as administrator. This he could dispose of for the benefit of the estate in any reasonable way. He was accountable for the proceeds of it under his official bond. If he chose not to carry out the contract which Hardy had made in his lifetime, the defendant would have a claim for damages against the estate. The estate was insolvent, and, under the laws of Vermont, claims against it would be proved before commissioners, and, upon allowance, their owners would share the assets pro rata. This suit is brought by the plaintiff, not as administrator, but in his individual capacity, on a contract made with the defendant after Hardy's death. The plaintiff as an individual could make a contract in regard to the lumber with the defendant as well as with anybody else, and by such a contract a liability might be created to the plaintiff personally. The court found upon the evidence "that the plaintiff did undertake to furnish, and did furnish, the defendant lumber pursuant to said contract of October 17, 1888, so far as quantity, quality, prices, and place of delivery were concerned; but that the defendant agreed and was bound to account to and pay the plaintiff for whatever lumber the plaintiff delivered after he was appointed administrator of the Hardy estate, without regard to, or giving any credit for, the advances made by defendant previous to the death of Hardy." The finding was well warranted by the oral testimony at the trial, and by the auditor's report, which was a part of the evidence. Under this finding it is clear that the action can be maintained in the plaintiff's individual capacity, and that the defendant is not entitled to set off his claim against the estate of Hardy for advances. Kent v. Bothwell, 152 Mass. 341, 25 N. E. 721; Grew v. Burditt, 9 Pick. 265; Davis v. Estey, 8 Pick. 475; Catlin v. Allen, 17 Vt. 176; Aiken v. Bridgman, 37 Vt. 249; Bates v. Sabin, 64 Vt. 511, 24 Atl. 1013; Hatch v. Hatch's Es tate, 60 Vt. 160, 13 Atl. 166; Gifford v. Thomas' Estate, 62 Vt. 37, 19 Atl. 1088. Two of these advances were made by notes payable to Hardy's order, which were sent to him at a time when he was unconscious by reason of the accident which caused his death, and were indorsed in his name by his wife while he remained in that condition, and were subsequently indorsed by the plaintiff for the accommodation of Hardy at his wife's request, in order that she might get them discounted at bank. The proceeds of these notes went into Hardy's estate by direction of his wife before his death. The defendant paid them at bank at maturity, in ignorance that the indorsement of Hardy's name upon them was not by his own hand. The court found as a fact that the plaintiff, after his appointment as administrator, ratified the acts of Hardy's wife in indorsing the notes. We are of opinion that he could lawfully ratify these acts, which were done in good faith, in the name of the deceased for his benefit. There is no doubt that Hardy could have ratified them in his lifetime, even after the notes had been paid, and we see no good reason why his administrator could not do it with the same effect. It follows that these two notes stand no differently from the others in relation to this case. These two findings of fact make most of the defendant's requests for rulings immaterial, and we see no error in the rulings nor in the refusal to rule at the trial. Under these findings, the presiding justice properly found for the plaintiff for the amount due under his contract made with the defendant after Hardy's death. Exceptions overruled. (163 Mass. 226) COMMONWEALTH v. WALKER. (Supreme Judicial Court of Massachusetts. Middlesex. March 2, 1895.) INDICTMENT ALLEGING FORMER CONVICTIONS— SURPLUSAGE-PAROL EVIDENCE-STATE- 1. Under St. 1887, c. 435, § 1, providing that whoever has been twice convicted of crime for terms of not less than three years shall upon conviction of a felony be deemed an habitual criminal, it is proper to allege former convictions in an indictment for felony. 2. Where an indictment in one count charges defendant with breaking and entering a building with intent to steal, and in another count charges him with an attempt to commit such crime, and at the end of each count former indictments are alleged, preceded by the words, "And the jurors for the commonwealth on their oath do further present," and followed by the words, "against the peace of the commonwealth, and contrary to the statute in such case made and provided," the indictment will be construed as containing only two counts, and the words quoted will be rejected as surplusage. 3. On an issue as to whether defendant was married, an officer of a prison in which he was confined may testify as to what defendant stated in that regard when questioned by the prison officials on being received in the prison, though his answer was entered on the prison records. Exceptions from superior court, Middlesex county; Franklin G. Fessenden, Judge. John L. Walker was convicted of an attempt to break and enter a dwelling with intent to steal, and excepts. Exceptions overruled. Fred N. Wier, Dist. Atty., for the Commonwealth. J. L. O'Niell, for defendant. KNOWLTON, J. 1. The first motion to quash, on the ground that the indictment should not contain allegations of former convictions and sentences of the defendant with a view to proving that he was an habitual criminal, was rightly overruled. Such allegations in an indictment under St. 1887, c. 435, § 1,1 are not only proper, but necessary. All the questions involved in this objection to the indictment have heretofore been decided against the defendant. Com. v. Harrington, 130 Mass. 35; Tuttle v. Com., 2 Gray, 505; Com. v. Graves, 155 Mass. 163, 29 N. E. 579; Sturtevant v. Com., 158 Mass. 598, 33 N. E. 648. 2. The second motion to quash, on the ground of a misjoiner of counts, has not been argued, although, from a reference to it in the brief, we infer that it is not waived. The indictment contains two counts, instead of four as assumed by the defendant, and the words, "against the peace of the comnonwealth, and contrary to the form of the statute in such case made and provided," unnecessarily used in one place in each of the counts, and the words, "And the jurors for the commonwealth of Massachusetts on their oath aforesaid do further present," do not in this case denote the end of one count and the beginning of another. The decisions in Com. v. Glover, 111 Mass. 395, 400, Com. v. Cohen, 120 Mass. 198, and Com. v. Chiovaro, 129 Mass. 489, hold that the unnecessary use of these words under circumstances like the present is not fatal to the indictment. It is obvious upon examination of the indictment that it was intended to charge the defendant in one count with the crime of breaking and entering a building with intent to commit the crime of larceny therein, and with having been twice convicted of crime, sentenced, and committed to prison for terms of not less than three years each, and to charge him in another count with an attempt to commit the same crime, and with having been in like manner previously convicted of crimes and sentenced. The meaning being obvious, unnecessary words may be rejected as surplusage. 3. The testimony of what the defendant said in answer to the question whether he was married or single was rightly admitted. The fact that the officer to whom he made the answer made a record of certain facts, 1 St. 1887, c. 435, § 1, provides that whoever has been twice convicted of, crime for terms of not less than three years each shall, upon conviction of a felony, be deemed an habitual criminal. including this answer, in accordance with a custom to make what may be called a "descriptive list," for possible future use, when receiving a person into prison as a convict, does not affect the competency of the oral testimony. The entries do not constitute such a record as precluded parol evidence of the facts stated in them. Exceptions overruled Direct evidence of the state of the tide at Fall River was put in by both parties, and under these circumstances a resort to inferences from more or less uncertain facts else where was unnecessary. Gilbert v. Railway Co., 160 Mass. 403, 405, 36 N. E. 60. We cannot say that the ruling was wrong. Exceptions overruled. (163 Mass 201) PHILLIPS et al. v. HADDOCK et al. (Supreme Judicial Court of Massachusetts. Bristol. March 2, 1895.) EXCLUSION OF EVIDENCE-HARMLESS ERROR. Where there is direct evidence by both parties as to a fact in issue, the exclusion of indirect evidence, from which an inference may be drawn as to the fact in issue, if error, is harmless error. Exceptions from superior court, Bristol County: Justin Dewey, Judge. Action by J. Mark Phillips and others against John C. Haddock and others. There was a judgment for plaintiffs, and defendants except. Overruled. Jackson, Slade & Borden, for plaintiffs. Jennings & Morton, for defendants HOLMES, J. This is an action to recover for damages to the plaintiffs' schooner, -caused by grounding in a dock in Fall River, where it was to deliver a cargo of coal to the defendants. It was stipulated by the bill of lading, as interpreted by the evidence, that 15 feet of water at high water on an ordinary tide were guarantled. The plaintiffs alleged that the grounding was due to the want of the guarantied depth of water, to which the defendants replied that the schooner did not come in until the tide had fallen. The accident happened between a quarter to 7 and 7 o'clock in the morning. The defendants offered to prove that high tide at Providence on that morning was at half past 5, and for that purpose offered an automatic register of a tide gauge kept by the city, and used by the United States in calculating the tides. This evidence was not admitted, and the defendants excepted. Providence is some 15 miles from Fall River in a straight line, and more by water. The expert who produced the register was allowed to testify from his data as to the tide in Providence to a time of high tide in Fall River. He fixed it between 20 and 38 minutes past 5. It is true that there was other ..evidence that under conditions like those testified to on the morning in question the difference in the time of high tide at Providence and Fall River would not be more than 5 or 6 minutes, but this margin of 18 minutes allowed by the expert well may have satisfied the presiding judge that the preliminary questions of fact to be settled by the jury before they could make any use of Providence as a standard for Fall River were difficult and uncertain. (163 Mass. 130) RICHARDSON et al. v. WILLIS et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1895.) WILLS-CONSTRUCTION OF CODICIL DESCRIPTION OF BENEFICiaries-After-Born Children. Testator gave to his trustees "as many thousand dollars as I shall have grandchildren at my decease, that is, $1,000 to each grandchild, -in trust." A codicil confirming the will so far as consistent therewith, directed the trustees to pay to certain named grandchildren $1,000 each, "it being the amount bequeathed to them in my will"; and continued, "my will is amended in this codicil so that my trustees are to receive $1,000 for each of the children of my son C." Held, that additional children, born to the son after testator's death, are not within the terms of the codicil. Appeal from supreme judicial court, Suffolk county. Petition by James B. Richardson and others, executors, for instructions as to distributing under a will. Henry C. Willis and others, heirs at law, were cited to appear. From a decree of the single justice affirming a decree of the probate court, respondents Rachel N. Willis and Charles J. Willis appeal. Affirmed. Chas. F. Donnelly, for appellants. Hale & Dickerman, for appellees. LATHROP, J. The will of Clement Willis appoints certain persons executors and trustees of his will. The third article of the will begins as follows: "I give to my trustees as many thousand dollars as I shall have grandchildren at my decease,— that is, one thousand dollars to each grandchild,-in trust." Then follow the terms of the trust, which need not be stated. By a codicil, which in terms confirms the will "so far as this codicil is consistent therewith," the testator directs his executors and trustees to pay to certain of his grandchildren, naming them, the sum of $1,000 each, within six months after his decease, "it beIng the amount bequeathed to them in my will in section third." Then follows this paragraph: "The clause in section three in my will is amended in this codicil so that my executors and trustees are to receive one thousand dollars for each of the children of my son Charles J. Willis, and invest the same as set forth in my will." Charles J. Willis had three children living at the death of the testator, and two childrenRachel N. Willis and Charles J. Williswere born subsequently. The only question presented in the case is whether the after |