KNOWLTON, J. The only question argued by the defendant is whether there was evidence to submit to the jury in favor of the plaintiff on the question whether his intestate was in the exercise of due care. He was a child, two years and eight months old. He lived with his parents and four sisters, the eldest of whom was 15 years of age, in a house on Franklin Place, in Quincy, about 200 feet westerly from the line of Franklin street. He was run over and killed by one of the defendant's electric cars on Franklin street, soon after 1 o'clock in the afternoon. There was evidence of negligence on the part of the motorman in charge of the car. The child was too young to be capable of taking care of himself on a public street. He was in the custody of his mother before he escaped and went upon the street, and the burden was on the plaintiff to show that she was in the exercise of due care in reference to his safety. The evidence tended to show that the plaintiff was a laborer, and that his wife, the boy's mother, took charge of the house, and did the household work for the family. On the day of the accident she was busy in providing dinner for her daughters, who had come home from school, and for her husband, who came from his work and had his dinner a little later than the others. There was a yard outside of the house, inclosed by a fence, with a gate opening from it into Franklin Place. On the gate was a catch to fasten it, and also a rope, sometimes used for the same purpose. The children were instructed to fasten the gate whenever they passed in or out. The plaintiff's intestate had been playing in the inclosed yard in the forenoon of the day of his death. His sister Margaret, then seven years and four months old, went out of the house, after dinner, into the yard, on her way to school. She had been instructed to close the gate whenever she opened it, and once had been punished by her mother for leaving it open. The mother saw the little boy follow his sis ter Margaret out of the house into the yard. Margaret left the gate open as she started for school, and the boy followed her, and went into Franklin street, and was run over. It was testified that the mother heard of the accident 10 or 15 minutes after she saw the boy go out of the house. We are of opinion that it was a question of fact for the jury whether the mother was reasonably careful in allowing the boy to go out into the yard alone, and in not watching him after he went out. The jury might find that she had good reason to believe that he was safe in the yard, and that he could not escape. They might well find that the care she gave him was all that could reasonably be required of her under the circumstances. The nature of the evidence was such as to present a question of fact, and not a question of law. Slattery v. O'Connell, 153 Mass. 96, 26 N. E. 430; Gib bons v. Williams, 135 Mass. 335; McGeary v. Railroad Co., 135 Mass. 363; O'Connor v.

Railroad Co., 135 Mass. 352; Creed v. Kendall, 156 Mass. 291, 31 N. E. 6; Marsland v. Murray, 148 Mass. 91, 18 N. E. 680; Mulligan v. Curtis, 100 Mass. 512. Exceptions overruled.

(163 Mass. 10)

STANDARD BUTTON FASTENING CO. v. BREED.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1895.) CONTRACTS-ALTERNATIVE PROVISIONS-PENALTY.

Where the provisions of payment in an agreement for the use of a certain machine are that the lessee shall keep an account of the work done by the machine, and pay ratably therefor, "and, if said lessee shall fail or neglect to keep an account" of the work so done, "the lessor may, at his option, either" employ some suitable person to take the account for him, or "charge said lessee, in lieu of" the ratable price named, "the sum of five dollars per day for each of said machines," the alternative will not be construed as a penalty, but as fixing upon a roughly-estimated per diem equivalent, where the difference is not too great to admit of that conclusion.

Appeal from superior court, Suffolk county.

Action by the Standard Button Fastening Company against one Breed to recover for the use of certain of plaintiff's machines under the terms of a written contract. There was judgment below for plaintiff in accordance with a certain construction of this contract, the cause appearing on agreed facts. Defendant appeals. Affirmed.

Chas. Allen Taber, for appellant. Geo. E. Smith, for appellee.

HOLMES, J. This is an action of contract to recover for the use of certain machines for sewing buttons, at the rate of five dollars a day, under a written instrument. The only question before us is whether the provision for the payment at that rate is merely a penalty, or whether it raises a duty to pay at that full rate in the contemplated event which is admitted to have happened. The lessee or licensee agrees to keep an account of the number of buttons sewed, and to pay at the rate of twelve cents a thousand. The agreement then goes on as follows: "Third. And if said lessee shall fail or neglect to keep an account of all the buttons sewed on by him, or by any person for him, and to render to the lessor a true account of same, as above provided, then the lessor may, at his option, either employ some suitable person to enter and remain upon the premises when said machines are operated, and keep an account of the number of buttons sewed on boots, shoes, or fabrics by said machines, or the lessor may, if he prefers, charge said lessee, in lieu of said twelve cents per thousand, the sum of five dollars per day for each of said machines, while and so long as said lessee shall fail or neglect to render accounts of the number of buttons

as above provided; and in either case said lessee hereby agrees to pay the reasonable compensation of such person employed as above specified, or to pay to the lessor the full price per day for said machines, as above agreed."

The first of the two courses between which the plaintiff is given a choice is not a penalty, but merely another way of fixing the price, although the choice is given to the plaintiff only in case of a breach of agreement by the lessee. When the plaintiff, instead of being at the trouble and cost of employing a person to keep the account, is allowed to charge a fixed rate per diem, the natural inference is that the rate is a roughly-estimated equivalent. There is nothing to control this interpretation. It was assumed, no doubt, that the machines would be in active use. The difference between the sum which would be due by account ($700) and that which is due charging by the day ($1,000), although appreciable, is not so great as to lead to a different conclusion. ably it is greater than was expected by the parties when they signed the instrument. If the plaintiff had employed a person to keep the account, the expense would have been added to the $700. Payment by the day is a liability attached to the single case of a failure to keep and render a true account, and is required only for such time as the failure lasts. It has none of the characteristics of a penalty to be chancered, and, in our opinion, it is not one.

Prob.

It is agreed that judgment shall be entered for the plaintiff for $705.36 or $1,005.36, with interest, according to the opinion of the court on the question discussed. The superior court ordered judgment for the larger sum. Judgment affirmed.

(162 Mass. 552)

PUTNAM v. GUNNING. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 2, 1895.)

CORPORATE OFFICER-CONVERSION OF FUNDS

SUIT BY RECEIVER-EVIDENCE.

1. Instruments signed by a person as an officer of a corporation are admissible against him to prove that he was such officer.

2. A pamphlet issued in great numbers by an association, stating that a certain fund is held in trust by the association for certain purposes, is admissible against the chief officer of the association to prove that he knew that the fund was a trust fund.

3. In an action by a receiver of an insolvent association against a director, to recover money received by defendant in fraud of the association, it appeared that the defendant, who had been governor general of the association, on the election of another governor general, contracted to remain with the association for one year at a salary, that he received most of his salary before it was due, and that he told the bookkeeper, who had by the directions of an officer of the association charged the payments to him as for services rendered as editor of the association paper, that the money should have been charged as paid for lecturing. Defendant in fact did little or nothing for the association, and

KNOWLTON, J. Many documents and papers were introduced in evidence on which appeared the signature or initials of the defendant in his own handwriting, wherein he was referred to as governor general, or director, or member of the committee on finance, of the American Protective League, the corporation of which the plaintiff is receiver. These were objected to by the defendant. They were admitted to show that during all the time, from its organization, he was acting for the corporation, and was familiar with its business; and also as evidence that he was an officer of the corporation, at least de facto. In this way the plaintiff also sought to connect him with the issuing of the pamphlet, "Live to Win," of which great numbers were being issued during all the time that the corporation was doing business. The evidence was clearly competent. The defendant's own acts and declarations can be proved against him to show that he was an officer of a corporation as well as for any other purpose. 1 Greenl. Ev. (15th Ed.) § 195, and cases cited; Smith v. Palmer, 6 Cush. 513; Loomis v. Wadhams, 8 Gray, 557; Topping v. Bickford, 4 Allen, 120; Com. v. Kane, 108 Mass. 423; Com. v. Tobin, Id. 426. extract from the pamphlet, "Live to Win," was competent evidence, in connection with the testimony that thousands of these pamphlets were being issued from the office of the corporation while the defendant was governor general and afterwards, to show that he knew the reserve fund was held out to the members of the corporation and to the public as a trust fund for the payment of matured certificates, and that it could not be appropri ated to any other use; and also to show that in like manner the proceeds of the monthly per capita tax and of the assessments were all to be deposited in securities with the treasurer of the commonwealth or held as a part of the reserve fund. See St. 1890, c. 341, § 1. The evidence in regard to the fund from which the payments of the amounts which the plaintiff seeks to recover were made, is not direct and clear, but the jury might fairThere ly infer that it was the reserve fund. was testimony that the semi-annual per cap

The

ita taxes for payment of expenses were sent directly to the secretary general, and did not go to the treasurer general, and it appeared that the defendant received his payments through the treasurer general. The defendant contends that there was no evidence that he received the money wrongfully or in fraud of the corporation. There was evidence that he was governor general of the corporation from its organization, in June, 1889, until June, 1891; that he was a director, and received his salary as director up to the time of the receivership; that on January 1, 1892, he made a contract with the corporation to continue for 18 months from that date to promote the growth and well-being of the order in the states of New York and New Jersey, in such form and manner as should be directed from time to time by the governor general or the secretary general, at a salary of $1,500 per year to be paid him by the corporation; that on March 23, 1892, he received $500 from the corporation before any part of this salary had become due, and at the time of the payment, when asked by the bookkeeper what it was for, replied that "he would tell him what it was for at some future time"; that he said "he was in a tight place, and had got to use the money"; that afterwards, on April 14th, he received $500, which he receipted for on account of salary, and again on June 14th he received $500 more. It was also in evidence that there had previously been talk by the defendant, or by other officers of the league, in his presence, as to the likelihood of the league being stopped very soon, and that a fund of $10,000 had been set apart by the directors two or three months before for the purpose of perpetuating the league and defending it. There was also evidence tending to show that he did little or nothing under his contract, and that the pay. ments, by direction of the governor general, had been charged up to the Endowment Review, as for services of the defendant as editor and publisher. The defendant afterwards told the bookkeeper that the entry on the books should be changed, as the money was paid to him, not for the Endowment Re view, but for lecturing for the league and promoting its interest. All this time his salary of $125 per month as director was paid to him separately, and he was preaching regularly on Sundays at a church in another state. The defendant did not testify nor offer any explanation of these matters. We are of opinion that this testimony, in connection with the other evidence in the case, was proper for the consideration of the jury on the question whether the defendant did not, while a director of the company, connive with the other managing officers to obtain money of the corporation without consideration and against right. The facts established by the witnesses, especially when taken in connection with the defendant's failure to testify, open a wide field for legitimate inferences against one who had long been a prominent officer of

a corporation which can now make but small returns to those who invested their money in it. We are of opinion that the presiding justice was right in submitting the case to the jury. Exceptions overruled.

(163 Mass. 42)

COMMONWEALTH v. INTOXICATING

LIQUORS (WRIGHT DRUG
CO., Claimant).

(Supreme Judicial Court of Massachusetts. Bristol. Jan. 14, 1895.) INTOXICATING LIQUORS-WHEN LIABLE TO FOR

FEITURE.

Where the warrant for seizure of liquors must set out "the person believed to be the owner, possessor, or keeper of such liquors" (Pub. St. c. 100, § 32), liquors owned and kept by, and in possession of, a corporation, and intended by its directors to be sold lawfully in its drug store, but which are intended to be and are sold unlawfully by its manager, without the knowledge or consent of the directors, are subject to forfeiture under a complaint charging that they were kept and intended for sale by such manager contrary to law.

Report from superior court, Bristol county; P. Emory Aldrich, Judge.

Complaint authorizing officers to search for intoxicating liquors in certain premises occupied by the Wright Drug Company as a drug store. Certain liquors were found and seized, and afterwards claimed by such company. There was a judgment that the liquors be forfeited to the commonwealth, and at claimant's request the case was reported for consideration of the supreme judicial court. Affirmed.

Walter Clifford and Wm. M. Butler, for claimant. Lloyd E. White, Dist. Atty., for the Commonwealth.

HOLMES, J. The liquors in question were owned by the claimant, the Wright Drug Company, a corporation. They were kept in a store which belonged to the corporation, and which, as we understand the report, was occupied by it for its business. They were intended by the directors to be sold lawfully by Wright, the treasurer of the corporation and salaried manager of the store, under a license of the sixth class held by Wright. Wright was selling and intending to sell them unlawfully, but this was without the knowledge or consent of the directors. The question is whether the facts recited prevent a forfeiture of the liquors under a complaint charging that they were kept and intended for sale by Wright contrary to law. The claimant's argument is that Wright was not a bailee, but only a servant; that the company retained the possession of the liquors; and that therefore, as its intent was lawful, the liquors were kept for lawful purposes, and the principles of Com. v. Intoxicating Liquors, 107 Mass. 396, do not apply. accept the premises of this argument so far as to assume, for the purposes of decision, that Wright had not possession of the liq.

We

uors, or any special property in them, and, therefore, that the case is not helped by Pub. St. c. 214, § 14. But the principle of the case cited is that the liquor is dealt with as being itself subject, and as liable to offend notwithstanding the innocence of its owner, like a ship in the admiralty. From this point of view the guilt or innocence of the res does not depend upon possession, but may depend upon the intent of the person actually in control of it, although without possession. The master of a vessel may make it liable in this way, although he is only a sort of servant of the owners. By Pub. St. c. 100, § 32, the warrant shall set out "the person believed to be the owner, possessor, or keeper of such liquor." The words "or keeper" following "owner" and "possessor" imply that one who is neither owner nor possessor may be a keeper within the meaning of the statute, and warrant the inference that if the intent of such a person is to sell unlawfully the liquor may be forfeited, under section 37, as "kept for the purpose of being sold in violation of law." It might be urged, although the point was not taken distinctly, that even if the liquors were subject to forfeiture on a charge that they were owned, or, possibly, that they were kept, by the Wright Drug Company, on the ground that the company were answerable for the intent of its servant in control and intrusted with the sale of the goods, they could not be said to be kept by one who was not in possession of them. We already have answered this contention in part by the reference to section 32. A further answer is found in the analogy of the decisions that a servant may be convicted of keeping and maintaining a nuisance of which he is not in possession, provided the master intrusts him with the management and control of the business for a short time in the master's absence. Com. v. Merriam, 148 Mass. 425, 427, 19 N. E. 405; Com. v. Brady, 147 Mass. 583, 584, 18 N. E. 568; Com. v. Churchill, 136 Mass. 148, 151. Here, again, the word "keep" in the statute is construed as referring to authority to deal with the property, rather than to possession. There is no doubt that Wright had such authority, management, and control. Judgment to stand.

(162 Mass. 596)

COMMONWEALTH v. JOHNSON. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 3, 1895.)

BOARDING HOUSE FOR INFANTS-WHO IS A KEEPER-CARE OF CHILD FOR COMPENSATION

-STATUTORY REQUIREMENTS.

1. Acts 1892, c. 318, § 7, requiring "any person receiving under his care or control, or placing under the care or control of another for compensation, an infant under two years of age,' to give notice to the state authorities, is not intended to apply to one who maintains a boarding house for infants, the keeping of which, as regulated under section 1, is defined by section 2.

2. One receiving a child under two years of age, under an agreement to board and care for

| it, taking compensation therefor for 10 days in advance, must, under Acts 1892, c. 318, § 7, notify the state board of lunacy and charity thereof within two days of "such reception," though she may have retained the custody of such child but one hour thereafter.

Exceptions from superior court, Suffolk county; Henry K. Braley, Judge.

Evelyn A. Johnson was found guilty under a complaint charging her with receiving under her care and control, for compensation, in the city of Boston, an infant under two years of age, unrelated to her by blood or marriage, and with not notifying the state board of lunacy and charity thereof within two days. Defendant brings exceptions. Exceptions overruled.

M. J. Sughrue, Second Asst. Dist. Atty., for the Commonwealth. E. B. Powers, for defendant.

FIELD, C. J. It does not appear that the defendant maintained a boarding house for infants, within the meaning of St. 1892, c. 318, §§ 1, 2. One contention on the part of the defendant is that the words "any person," etc., at the beginning of section 7 of this statute, must be construed to mean any person who maintains a boarding house for infants, within the meaning of sections 1 and 2. An examination of the statute convinces us that this is not the meaning. The statute, by section 1, provides that no person shall maintain a boarding house for infants without a license, and prescribes the punishment for maintaining such a boarding house without a license. Section 2 defines what constitutes "maintaining a boarding house for infants," within the meaning of section 1. To maintain such a boarding house, a person must have in his custody and control at one time more than one infant under the age of two years, etc. Sections 3 to 6, inclusive, relate to licenses and licensees. Section 7 begins as follows: "Any person receiving under his care or control or placing under the care or control of another for compensation an infant under two years of age," etc.; and it requires such person to give notice to the state board of lunacy and charity within two days of "such reception" of the infant, stating the fact that the infant has been received, and the names, ages, and residences of the infant and of its parents, etc. This language is general, and it includes any person receiving an infant, and any person placing an infant under the care and control of another; and it relates to the reception of one infant, and has no reference to the provisions of the statute requiring a license.

The other suggestion is that the infant must have been retained by the defendant at least two days, before it became her duty to give notice, and that, as the infant was retained only one hour in the custody of the defendant, she did not violate the provisions of the statute by neglecting to give notice. See section 9, St. 1892. The argument is that it

could not have been the intention of the legislature that a notice should be required of any person taking the care or control, for nire, of an infant under two years of age, for a few minutes or hours, at the request of its parents or guardian, as this must often occur among people who work, without any intention of giving up the right of control over the infant. It is unnecessary, however, to express any opinion upon such a case. In the case at bar the exceptions recite that one Kate Donovan placed her child under the care and control of the defendant, "who received said child, and agreed to board and care and take control of said child, and then received compensation for its board for the period of ten days." It thus appears that the defendant was in no sense the servant of the mother of the child, and an arrangement had been made for the care and control of the child for at least ten days. If the child had remained with the defendant more than two days, there would seem to be no doubt that the case was within the statute. We find nothing in the statute which makes a continuance of the care or control of the child for two days a condition on which the duty to give notice depends, and there are reasons why the legislature might think it best to require the notice without regard to the length of time the child was actually in the control of the person receiving it. A child might die within the two days, and the cause of its death might need to be inquired into. In the case at bar the defendant delivered the child, within one hour after she received it, to a woman who apparently was a stranger to her, on the statement of the woman that she came from the mother of the child, and had authority to take the child. We infer that the mother never received the child. Such a disposition of the child might reasonably be made the subject of inquiry, and, for that purpose, notice that the child had been received might reasonably be required by the legislature. If, as the exceptions recite, the defendant acted honestly in delivering up the child, it may be that she ought not to be punished, or punished severely; but we are of opinion, on the facts stated, that she violated the statute, in not giving notice within the two days. Exceptions overruled.

(162 Mass. 468)

BAKER v. TIBBETTS.

(Supreme Judicial Court of Massachusetts. Worcester. Jan. 1, 1895.)

PERSONAL INJURIES-DANGEROUS PREMISES-LIABILITY OF OWNER-DEFECTIVE TITLE-AGENCY-PROVINCE OF JURY.

1. One who induces another to enter with him a place known to him to be dangerous, without warning that other thereof, is liable for any injuries caused thereby.

2. The trustee of an estate is personally liable for torts committed by his agents in the trust within their authority in the management thereof.

3. The liability of a defendant for injuries suffered through plaintiff's contact with certain articles over which defendant authorized control is not relieved by a defect in his title to them.

4. In an action to recover for injuries suffered from an explosion on premises owned by defendant on the ground that they were known to defendant's agent to be dangerous, but that such agent nevertheless induced plaintiff to go upon them without warning him of the danger, it appeared that the agent had authority to lease the premises, and so to prepare them for the lessee. Held, that it should have been left to the jury to determine whether defendant's agent was acting within the scope of his authority in inducing the lessee and plaintiff, who was interested with the lessee, to go upon the premises for the purpose of determining, on be half of defendant, what articles then on the premises, among which were the explosives, the lessee would allow to remain.

Report from superior court, Worcester county; John Hopkins, Judge.

Action by Peter Baker against Henry L. Tibbetts to recover for personal injuries suffered through the acts of defendant's agent. The trial court directed judgment for defendant, and ordered the cause reported here for the determination of the whole court; if the direction was erroneous, the trial to proceed. Remanded.

Webster Thayer and Hollis W. Cobb, for plaintiff. Marshall, Burke & Marshall, for defendant.

HOLMES, J. This is an action of tort for personal injuries, seeking to charge the defendant on the ground that by his agent he invited the plaintiff into a place of hidden danger, that is to say, a place where there was a dangerous explosive, unknown to the plaintiff, and thereby led him into a trap. The place in question was the basement of a building which had been conveyed by one Aldrich to the defendant, as trustee for Aldrich's creditors. The defendant, by his agent, Stearns, had made a written lease of the building to Sherman, and Sherman had made an agreement for a sublease of the basement to Ryan, to take effect on October 1, 1892. In this basement were engines, boilers in a cement-lined pit, and so forth, and in the boilers was some bisulphide of carbon, the explosive mentioned above. At the time of the lease to Sherman, Stearns agreed to remove everything in the basement except a Fitchburg engine and large shaft, and retained a key to the basement. Later, Stearns asked that certain things might remain there. Sherman assented if Ryan did not object. There was evidence that on September 19th Ryan and the plaintiff, who was interested in Ryan's business, went to Stearns, just outside the basement, and asked him what things he wanted to have remain, and that Stearns answered, "Come in, and I will show you." Before this time Stearns had removed some of the things, and had drawn off some of the bisulphide of carbon, but in the process some of it had been spilled upon the bottom of