of fact. On the trial before a referee, this issue was found in favor of the defendants. He reported that during the previous years the plaintiff had been overpaid, and that the aggregate of such overpayments exceeded the plaintiff's claim for the last year. Judgment was ordered in favor of defendants, which has been affirmed on appeal. Although the dispute was largely in regard to a question of fact, yet the contention of both sides rested upon what appeared in the defendants' books; so that, unless it can be shown that the learned referee adopted some erroneous legal principle as a basis for the inquiry, the general result at which he arrived ought not to be disputed.

The fundamental objection which the plaintiff makes to the action of the referee rests upon the proposition that it was error to open the settlements made by the parties in the previous years. Those settlements were the result of a mistake on the part of the bookkeeper, which the defendants did not discover until about the time of the commencement of this action. In such a case the rule is well established that a settled account may be impeached and readjusted by proof of unfairness, fraud, or mistake in law or fact. Weisser v. Denison, 10 N. Y. 68; Bruen v. Hone, 2 Barb. 586; Philips v. Belden, 2 Edw. Ch. 1; Welsh v. Bank, 73 N. Y. 424; Carpenter v. Kent, 101 N. Y. 591, 5 N. E. 787; Samson v. Freedman, 102 N. Y. 699, 7 N. E. 419; Wheadon v. Olds, 20 Wend. 174; Malcolm v. Fullarton, 2 Term R. 645; First Nat. Bank of Omaha v. Mastin Bank, 2 McCrary, 438. It may not be necessary in such cases to open the whole account, but the mistake can be corrected and the rights of the parties readjusted as to such mistake, and that is all that was done in this case.

In changing the accounts appearing upon the books in such a way as to reduce the net profits of the business during the period of plaintiff's service, as these profits were shown by the books as actually kept, the learned referee adopted no erroneous principle, but, on the contrary, acted upon rules and principles obviously correct and just. The changes made were substantially these: Nearly $5,000, which had been paid out during the period covered by the inquiry for taxes and interest, had been entered by the bookkeeper to stock account, and thus the assets of the firm were to that extent increased, whereas it was really one of the expenses of the business, and should have been charged in the expense account; and, in ascertaining the total net profits for the 10 years, it was so charged by the referee.

The referee also found that during this period the firm had expended over $14,000 for repairing casks, which sum had been credited to cask account, and thus that part of the partnership property which consisted of casks was correspondingly increased. All new casks when purchased were properly entered in the stock account, since they in

creased the property on hand; but expenditures for repairs were really a disbursement incident to the conduct of the business, and, to the extent of what was paid out for that purpose, diminished the actual net profits.

Something over $8,000 was charged off by the referee on account of bad debts and for rebates from the regular prices at which sales were entered in the books in certain special cases. The proof was sufficient to justify the finding of the referee that the debts so charged off were uncollectible, and in fact worthless. It appeared that the firm had adopted the practice, during the years of plaintiff's service, of making allowances to their customers, or some of them, in the form of rebates from the scheduled prices at which their goods were sold. The percentage allowed in such cases varied as to different customers according to circumstances. One of the defendants had exclusive charge of this branch of the business. There was no general rule, established by custom or by contract, on the subject; and the allowances were necessarily arbitrary, according to his best judgment in each case, as the special circumstances seemed to render necessary, expedient, or proper. The only criticism made by the plaintiff in regard to this item is not that the allowances were not actually made, but that they were excessive. It is not claimed that the defendant who had charge of the matter acted otherwise than in good faith and according to his best judgment. The practice is not unusual in other departments of business, and, in recognizing the custom and the acts of the parties in that regard in this case, the referee did not sanction any illegal or erroneous principle.

In arriving at the result, the referee charged off from the cost of the original plant 10 per cent. in each year for depreciation, which reduced the assets about $29,000. The plant had been carried for the 10 years upon the books at the original cost, and the proof in regard to the usual custom of business and the propriety of its application to this case warranted the decision of the referee in respect to this item embraced in the controversy. There is some dispute as to the manner of taking the inventory adopted by the defendants for the last year. The contract with the plaintiff provides that it should be made up in the same way as in previous years. In these years it was taken at the estimated selling price. It was taken for the last year at the cost price, but there was credited to the plaintiff his estimated share of the profits which would result from the sale of the goods then on hand, and the referee has found that this was a substantial compliance with the contract. Whether the inventory was correct or not was largely a question of fact. It may be that it was not taken strictly according to the contract, but, if so, the error could not change the result. The referee has found that, after correcting the

errors in the accounts before referred to, there would be a balance against the plaintiff, resulting from overpayments, of about $1,000, and this amount would more than offset any additional share of the net profits that could possibly be awarded to the plaintiff if the inventory was adjusted according to his own contention. Moreover, the referee refused to allow the defendants in the account nearly $8,000 for rents of the property upon which the business was conducted, and which had not been charged upon the books to the expense account. The defendants owned the property, and the plaintiff, in receiving the payments, had the benefit of it to the extent of his interest in the net profits. The defendants, in making up the account, credited themselves with a sum equal to 10 per cent. upon the value of this property for each year. The referee declined to allow the claim, upon the ground that there was no evidence before him to show that such was the proper sum to be allowed, holding that proof of the fact that the defendants owned the property, and its value, was not sufficient to warrant any deduction from what otherwise appeared to be the net profits on that account. This ruling was certainly sufficiently favorable to the plaintiff, and it is quite possible it might be changed upon a new trial.

On the whole, we think that the controversy was properly disposed of by the referee, and that the judgment should be affirmed, with costs. All concur, except BARTLETT, J., dissenting, and HAIGHT, J., not sitting. Judgment affirmed.

(163 Mass. 26)

THOMSON v. POOR et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 8, 1895.)

APPEAL IN INSOLVENCY.

In proceedings for a composition in an insolvency case, the debtor has no right of appeal from the allowance of a claim against his estate.

Appeal from superior court, Suffolk county. In the matter of the claim of Lemon Thomson against John O. Poor and others, insolvent debtors. Claim allowed, and defendants appealed. From a judgment of the superior court dismissing such appeal, defendants appeal. Dismissed.

M. F. Dickinson, Jr., for appellants. Wm. A. Knowlton, for appellee.

KNOWLTON, J. The only question now before us is whether, in proceedings for a composition in an insolvency case, the debtor, if dissatisfied with the allowance of a claim against his estate, has a right to appeal to the superior court. Nowhere in the statutes is such a right given to the insolvent debtor. By the Public Statutes (chapter 157, § 36), an appeal is given to a supposed creditor whose claim is wholly or in part rejected, and to an assignee who is dissatisfied

with the allowance of a claim. This section is one of those which are made applicable to proceedings for a composition, so far as they can be applied thereto. St. 1885, c. 353, § 1. It is contended that inasmuch as proceedings for a composition are often had without the issuing of a warrant, or the choice of an assignee, a right of appeal from an order allowing a claim should be given to the debtor, although none is expressly mentioned in the statute. We see no evidence that the legislature intended to confer such a right. It may well have been thought that, if an appeal is proposed to be taken from a decision of the court allowing a claim, an assignee should first be chosen, to determine whether it is for the interest of the creditors that the litigation should be taken to the superior court. Although St. 1885, c. 353, § 1, provides that "the proceedings shall not be stayed or suspended on account of an appeal from the allowance or rejection of a claim," the ordinary effect of such an appeal is to create uncertainty and cause delay. In case of such delay, it would often be necessary, for the protection of the creditors, that an assignee should take in charge the property of the debtor. In the absence of any provision for an appeal by the debtor in this or in any other similar case, we cannot read one into the statute. If important questions of this kind arise, affecting the amount which the debtor can afford to pay in composition, or affecting the safety and security of the property during the pendency of the proceedings, it is easy to choose an assignee. Whether, if there was an error on the part of the insolvency court, in the allowance of a claim, the debtor might ever have it corrected by an application to this court, under Pub. St. c. 157, § 15, it is unnecessary now to decide. Appeal dismissed.

1. A building contract provided that the payments should be made on the architect's certificate, and that the second payment would be due when all the work was completed, and the final payment 30 days later. It was provided that no certificate given, except that for the final payment, should be conclusive evidence of the performance of the contract. Held, that a certificate for the second payment did not dispense with the necessity for the final certificate.

2. One who assumes a building contract, and agrees to pay all sums due or to become due from the owner thereunder "according to the tenor thereof," is entitled to the benefit of a provision in the contract that the final payment would not be due till 30 days after the completion of the work, and would be paid only on the certificate of the architect, though the work was completed when the contract was assumed, and the agreement to assume stated that there was then due a sum of money from the owner to the contractor.

Report from superior court, Middlesex county; Robert R. Bishop, Judge.

Action by Joseph R. Beharrell against Henry B. Quimby to recover an amount alleged to be due on a building contract. There was a finding in favor of defendant, and the case was reported for consideration by the supreme court. Judgment for defendant.

The contract provided that the payments should be made as follows: First payment, $909, when building is rough plastered; second payment, $500, when all is completed; final payment, $409,-it being understood that the final payment shall be made within 30 days after this contract is completely finished; provided, that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction; and provided, further, that before each payment, if required, the contractor shall give the architect good and sufficient evidence that the premises are free from all liens and claims chargeable to the said contractor,-and contained the following clause: "It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be con; clusive evidence of the performance of this contract, either wholly or in part, against any claim of the owner, and no payment shall be construed to be an acceptance of any defective work."

Francis W. Qua, for plaintiff. H. L. Boutwell, for defendant.

ALLEN, J. The only two questions reported for our determination are (1) whether the ruling as to the certificate was wrong, and (2) whether upon the evidence the plaintiff was entitled to recover.

1. The ruling that the certificate given by the architect was not a final certificate, within the meaning of the agreement between the plaintiff and Orcutt, was right. By that agreement three certificates were called for, one before each payment. The certificate given was for the second payment. Although no certificate had been given for the first payment, the certificate for the second necessarily implied that the plaintiff was entitled to the first payment. The plaintiff also contends that, since the contract provided for the second payment only "when all is completed," the certificate that he was entitled to that payment implied that all had been completed, and that no further certificate was necessary. But, by the terms of the contract, no certificate except the final one was to be conclusive evidence of the performance of the contract, either wholly or in part, against any claim of the owner. A final certificate was called for, which was to be in addition to the two earlier certificates.

In dealing with the question whether, upon the evidence, the plaintiff was entitled to recover the final payment, we will first consider

whether he would be entitled to maintain an action for that payment against Orcutt himself. By the terms of the contract, Orcutt was entitled to a final certificate of the architect before making the final payment. The several payments were to be made "provided that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction.' "No certificate given or payment made under this contract, except the final certificate o final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, against any claim of the owner." The owner "hereby contracts to pay the same at the time, in the manner, and upon the conditions above set forth." No later certificate was given than that for the second payment. The plaintiff therefore was not entitled to recover, against Orcutt, the final payment, unless sufficient reason or excuse for not furnishing such a certificate was shown. What would amount to such sufficient reason or excuse has been often considered, both in England and in this country, as appears by the authorities cited for the plaintiff and for the defendant, to which may be added Clark v. Watson, 18 C. B. (N. S.) 278; Batterbury v. Vyse, 2 Hurl. & C. 42; Nolan v. Whitney, 88 N. Y. 648; U. S. v. Robeson, 9 Pet. 319, 327; Hudson, Bldg. Cont. 265, 297-301. The plaintiff contends that there was evidence from which the court would have been amply justified in finding that the provision requiring a certificate, if it ever constituted a condition precedent, had been waived, and also that the evidence showed that the certificate had been wrongfully and fraudulently withheld. All that is open to us on this part of the case is to determine whether, at the trial, and upon the evidence introduced,-that is, upon the auditor's report, the presiding justice was bound to find that there was a sufficient reason or excuse for not producing such a certificate. He found for the defendant; and his finding must stand unless we can say, upon the evidence, that it was wrong. There was evidence which certainly tended to show that the architect might well have given a final certificate; that he changed his mind, to some extent, shortly after giving the certificate for the second payment; and that he wrongfully withheld it. There was also some evidence of circumstances tending more or less to show that Orcutt interfered to prevent the architect from giving the final certificate, and, if this latter proposition had been made out, the plaintiff, clearly, would have been relieved from the necessity of producing such a certificate. Whether such a result would follow from the mere wrongful refusal of the architect alone is a question upon which, elsewhere, there has been some difference of opinion. Hudson, Bldg. Cont. 301; Nolan v. Whitney, 88 N. Y. 648. We need not now determine it. There was nothing to show that the plaintiff ever asked the architect to give

a final certificate, or complained to Orcutt that the architect was acting unfairly. The report of the auditor upon this whole subject is rather vague and unsatisfactory, but it was accepted by the parties, and neither of them offered to produce further evidence, except that of the documents. The certificate for the second payment was dated April 16, 1892, but the auditor reports that it was given April 23, 1892. The action was begun May 31, 1892. It is stated that at the hearing before the auditor the architect did not appear, and that it was admitted that he had been absent from Lowell, in parts unknown, for several months. We have no means of knowing the date of the hearing before the auditor. There is no averment or suggestion, and we cannot infer that the architect went away before the commencement of the action. The auditor expressly finds that it was not alleged or proved that the architect had fraudulently or capriciously withheld a final certificate, and, although he reports some facts tending to show the contrary, yet they are not conclusive, and they do not enable us to say, as matter of law, that a sufficient reason or excuse for failing to produce a final certificate from the architect was made out. Nor were the payments which were made to be deemed, as matter of law, a waiver of a further certificate.

The plaintiff, however, contends that the defendant, under his contract, is not entitled to avail himself of this defense, although it might be open to Orcutt. This contention rests upon the language of the defendant's contract, reciting that "there is now due to Joseph R. Beharrell, from Edward R. Orcutt, a sum of money under and by virtue of a certain written contract." The contract of the defendant was dated March 22, 1892, and at that time no certificate had been given by the architect; and the plaintiff contends that the recital above quoted shows that the parties did not contemplate the furnishing of an architect's certificate at that time. But the final payment under the contract with Orcutt was not to be made till 30 days after the completion of the work, and the earliest date named by the plaintiff as the time when the work had been completed was March 22, 1892. The recital that a sum of money was then due certainly could not have been intended to include the final payment. The defendant's promise was to pay "all sums of money now due and to become due to him, under said contract, according to the tenor thereof." As to sums to become due in the future, at least, this must mean a promise to pay according to the obligation that would be resting on Orcutt. What was actually done in making payments was this: On March 22 a first payment of $500 was made; on April 2 there was a further payment of $409; and on April 23 there was a further payment of $500, the architect's certificate being furnished on said last-named day. By whom these payments were made,

whether by Orcutt or by the defendant, is not stated, but the plaintiff assumes that they were made by the defendant. If this were so, it still appears probable that the last payment was not made till the architect's certificate was furnished, and the plaintiff virtually admits that this was so. There is nothing sufficient to control the plain words of the defendant's promise, which was to pay the money to become due under the contract according to the tenor thereof. This obviously means that the defendant would pay such sums as became due from Orcutt, and at the time when they so became due. The final payment would not become due from Orcutt without a final certificate from the architect, unless some sufficient reason for failing to produce such certificate should be shown. The finding of the presiding justice was based on the ground, as we understand it, that the plaintiff's action was prematurely brought. This finding was warranted by the evidence. The result is that there must be, according to the terms of the report, judgment for the defendant.

(163 Mass. 12)

MILLER v. PRESCOTT. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1895.)

COVENANT BY LESSEE-CONSTRUCTION - IMPROPER USE OF PREMISES-BREACH OF CONDITION

-WAIVER-ACCEPTANCE OF RENT.

1. Where a lessee covenants not to "make or suffer any waste, or any unlawful, improper, or offensive use of said premises," he stipulates that there shall be no such use by himself or by any person occupying under him.

2. An acceptance of accrued rent, accompanied by an express agreement that no breach of a covenant or condition is thereby waived, does not affect the lessor's right to enter for breach of a condition.

Case reserved from supreme judicial court, Suffolk county.

Action by Louie A. Miller, administrator, against Margaret A. F. Prescott. There was a verdict for defendant, and the case was reserved. Judgment for defendant.

Elder, Wait & Whitman, for plaintiff. Wm. D. Turner, for defendant.

KNOWLTON, J. The plaintiff's testator, who was the lessee of the real estate described in the writ, entered into a covenant not to "make or suffer any waste, or any unlawful, improper, or offensive use of said premises." By the terms of the report the verdict is to stand, unless there was error in one of the two following rulings: First, "that unlawful use of the premises by a subtenant was a breach of the covenants and conditions of the lease, whether known by the plaintiff or her testator or not"; second, "that if the rent for the months in question was paid over and received according to the receipts put in evidence marked 'Exhibit 2,' that would not amount to a waiver of the breaches then known to the defendant." On these receipts

for accrued rent was the following indorsement: "The receipt of this rent is not to waive any breach of the covenant and conditions of the lease on the Howard street estate." The covenant referred to is a covenant concerning land, and affecting the mode of enjoyment of it. Such a covenant runs with the land, and is binding upon persons who are in privity of estate with the covenantee. It is intended for the protection of the lessor, and he may enforce it directly against the original lessee, or against an assignee of the lease. If there is no assignment of the lease, but a subletting of the whole or a part of the premises for a time less than the remainder of the term, so that no privity of estate is created between the lessor and the subtenant, the covenant would be ineffectual for the lessor's protection, if he could not proceed on the ground that it applies as well to an unlawful use by a subtenant as by the original lessee. We are of opinion that the agreement not "to make or suffer" an unlawful use of the premises must be interpreted as a stipulation that there shall be no unlawful use by the original lessee, or by any person who is occupying under him. It is easy for the lessee to control the use of the property, and to protect the interests of the lessor and of himself in this particular. With this interpretation, effect is given to the word "suffer." It may not be reasonable to hold that the covenant makes the lessee liable for an unlawful use of the property by trespassers, but he may well be held to "suffer" unlawful use of the property if he does not take effectual measures to prevent such a use by those who occupy by his authority. The adjudication in Wheeler v. Earle, 5 Cush. 31, fully covers the ruling now in question. The acceptance of rent already accrued, accompanied by an express agreement that the breach of condition was not thereby waived, did not affect the right of the lessor to enter for a breach of the condition. Kimball v. Rowland, 6 Gray, 224. There was nothing necessarily inconsistent between the acceptance of rent due and the enforcement of the right to enter. There was no error in the rulings at the trial. Judgment for the defendant.

(162 Mass. 485)

OLSON v. KEITH. (Supreme Judicial Court of Massachusetts. Plymouth. Jan. 1, 1895.) BOUNDARIES-COURSES AND DISTANCES.

Where, in a deed of land, a boundary line is located at a certain distance from the starting point, which is fixed by a monument, such location will control a distance given which is not fixed by a monument.

Exceptions from superior court, Plymouth county; Robert R. Bishop, Judge.

Action of ejectment by John Olson against Edwin Keith. A verdict was directed for defendant, and plaintiff excepts. Exceptions overruled.

KNOWLTON, J. On the undisputed facts of this case, the deed from the tenant to the demandant fixes exactly the location of all the lines and boundaries of the lot conveyed, and its construction cannot be controlled or affected by parol evidence. Cook v. Babcock, 7 Cush. 526; Stowell v. Buswell, 135 Mass. 340. The boundary A on the plan is the starting point, at the southwesterly corner of William King's house lot, and is not in dispute. The line A, B, is the westerly boundary line of the lots of King and Sturgis, and is not in dispute. The point G is fixed at 60 feet from the point A, on the northerly line of the private way, and the line G, D, is fixed as having one end at G, and running parallel with Copeland street. It strikes the wall at D, which is a point 148 feet, more or less, from the corner at B. The only way of fixing exactly the point D is by running the line G parallel with Copeland street until it strikes the wall, and the deed does not purport otherwise to show where on the wall the terminal boundary is. The length of the line on the wall is given in feet, with the qualification "more or less." While the survey shows the length of two of the lines to be somewhat less than the distance stated in the deed, this part of the description is controlled by the location of the lines and monuments, and there is no legal ambiguity in the deed. Morse v. Rogers, 118 Mass. 572. Exceptions overruled.