tion in favor of the validity of the decree would have made it wrong to give the ruling requested, upon the state of the evidence disclosed by the bill of exceptions, and without proof that, when the probate court acted, it had before it no other evidence than that disclosed by the bill of exceptions. Exceptions overruled.

lessors to make such repairs as might be ordered in such proceedings. Therefore, the loss of the use of the water power was not a partial eviction or ouster for which the lessors were in any way responsible, and it affords no defense to the action for rent. Judgment for plaintiff for $600.

(182 Mass. 180)

PRATT et al. v. GRAFTON ELECTRIC CO. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 30, 1902.)

LANDLORD AND TENANT-LEASE OF WATER MILL-ACTION FOR RENT-GATES OF DAMREMOVAL BY COUNTY COMMISSIONERS-DEFENSE.

1. A lessee in an action for rent of a water mill, under a lease stipulating that the lessor shall not be required to make repairs, and that the lessee shall make the necessary repairs of the gates, cannot defeud by showing that the rent accrued after the loss of the use of the water, due to the removal of the gates of the dam by the county commissioners after the lessor had failed to comply with the commissioner's order to repair the gates, pursuant to Pub. St. c. 190, §§ 52, 58, authorizing the county_commissioners to provide for the safety of dams; there being no implied covenant on the part of the lessor to make such repairs as might be ordered by the commissioners.

Report from superior court, Worcester county; Francis A. Gaskill, Judge.

Action by Charles L. Pratt and others against the Grafton Electric Company. On report from the superior court. Judgment for plaintiff.

John B. Scott and Chas. A. Merrill, for plaintiff. Herbert Parker and Geo. A. Gaskill, for defendant.

BARKER, J. Because the gates were rotten and in need of repair, the county commissioners, under the police power conferred by Pub. St. c. 190, §§ 52, 58, removed them, and drew down the waters of the pond, thus depriving the defendant of the use of the water power, which was one of the things demised in the lease. Before removing the gates, the commissioners had made an order that the lessors should repair the gates, and the lessors had omitted to comply with the order. The lease contained these clauses: "The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss, or damage." "The lessee shall make at its own expense all necessary repairs during the term of the lease of the flume, gates, bulkheads, and all leased property, to keep them in proper condition for use." The lease being of a water mill, both parties must be taken to have entered into it in view of the possibility that the water power might be affected by proceedings under the statutes concerning the safety of dams. With express stipulations of the tenor of those quoted, it cannot be said that there was an implied covenant on the part of the

(182 Mass. 175)

CAPEN. LEACH et al.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 30, 1902.)

CEMETERIES-BURIAL LOTS-RIGHTS OF OWNERS-TENANTS IN COMMON-EQUITY— PLEADING-DEMURRER.

1. A bill alleging that plaintiff and defendants were heirs and tenants in common of a certain burial lot, and that plaintiff selected a corner of the lot, and erected thereon a monument, which defendants removed, causing injury thereto, did not state a cause of action; for whether the lot was subject to Rev. Laws, c. 78, §§ 26, 27, relating to the control of the lots where the owners do not agree, or whether the parties were merely tenants in common, plaintiff had no right to so erect the monument.

2. No right being shown to erect the monument, the bill would not be retained on demurrer to investigate any unnecessary damage done the monument in its removal.

Appeal from superior court, Hampden county.

Bill by Meriva L. Capen against William W. Leach and others. From a judgment for defendants, complainant appeals. Affirmed.

C. L. Gardner and C. G. Gardner, for appellant. T. W. Kenefick and E. F. Hobson, for appellees.

BARKER, J. The bill shows that the plaintiff is one of four heirs at law who are tenants in common of a burial lot in a cemetery in the town of Hampden. Whether the cemetery is one, the lots in which are governed by the statutory provisions now in force, as enacted in Rev. Laws, c. 78, §§ 26, 27, does not appear. The bill alleges that she has selected for the purpose of her burial a corner of the lot, and caused a granite monument to be erected thereon, which the defendants, two of the three persons who are tenants in common with her, have removed, and left exposed and unprotected, thereby causing irreparable injury to the monument. If the cemetery is one governed by the provisions of Rev. Laws, c. 78, §§ 26, 27, the possession, care, and control of the lot were not in the plaintiff alone, but were in common with the four heirs, of whom she was one; and that statute provides the course to be followed in case the four do not agree as to the control of the lot. That course is a designation by the proper officials as to which of the heirs snall represent the lot, in default of such a designation by the heirs themselves. If, on the other hand, the lot was not governed by the statute cited, the plaintiff and the defendants are merely tenants in common. The placing

2. See Equity, vol. 19, Cent. Dig. §§ 116, 117.

upon the lot of a granite monument was an exclusive appropriation by the plaintiff of a part of the land to her own use, which the defendants could treat as an ouster, and they might remove the structure from the common land. Bennett v. Clemence, 6 Allen, 10, 18; Ingalls v. Newhall, 139 Mass. 268, 273; Byam v. Bickford, 140 Mass. 31, 34, 2 N. E. 687; Harford v. Taylor (Mass.) 63 N. E. 902. As the bill shows no right in the plaintiff to place or keep the monument on the lot, the demurrer was sustained rightly. If any unnecessary damage was done in the removal, as is, perhaps, alleged argumentatively, the bill will not be retained to investigate that matter alone.

Order sustaining demurrer and decree dismissing bill affirmed.

(182 Mass. 216)

HURLEY et al. v. PACKARD. (Supreme Judicial Court of Massachusetts. Plymouth. Oct. 30, 1902.)

CONTRACT OF EMPLOYMENT-BREACH-RE-
MOTE DAMAGES-DELAY IN HAND-
ING IN ORDER.

1. An employé to take orders for shoes got one for goods to be delivered in 22 months, but delayed several days to hand it in. In the meantime the order was canceled. Held, that this not being an event which, according to common experience, was naturally and reasonably to be expected from the delay, the employé was not liable for the damages.

Exceptions from superior court, Plymouth county; Jabez Fox, Judge.

Action by M. M. Hurley and others against one Packard to recover an amount alleged to be due as plaintiffs' share of profits under an agreement by which defendant was to pay them to take charge of the manufacture and sale of shoes. Verdict for plaintiffs. Defendant excepts. Exceptions overruled.

Richard W. Nutter, for plaintiffs. F. M. Bixby, for defendant.

LORING, J. In this action the defendant sought to recoup damages caused by the breach of the agreement sued on by one of the plaintiffs. The plaintiffs were employed by the defendant to get orders for his business of manufacturing shoes, and they agreed to "serve" him "well and faithfully." The breach of the agreement relied on by the defendant was in the plaintiff W. M. Hurley not acting promptly in handing in an order given him in New York by one Lambert on December 17, 1900. It appeared that on Hurley's return to the defendant's factory, which was in Brockton, he told the defendant that he had a good order from Lambert, but did not state the details. Hurley's explanation on the stand for not handing in the order promptly was that the order was for 1,769 pairs of shoes, of new styles and descriptions, and that it would take half a day to write it out; that the shoes were not to be delivered

until March 1st, and, so far as work in the factory was concerned, there was no need of the order "being in" before January 15, 1901. It also appeared that the factory was shut down about December 26, 1900, to take account of stock and get ready for the next "run," which was to begin on January 1st, or soon after. The plaintiffs' agreement with the defendant ended on December 26th, and on that day Hurley's brother was asked to turn in all property in his possession, and to tell Hurley to do the same. The defendant asked Hurley several times where the order from Lambert was, "to which he replied that it was in his (said Hurley's) pocket"; meaning that he had notes of it, and that it had not been written out. Lambert testified that he never asked Hurley directly to turn over the order. On December 29th the defendant telephoned Lambert, and asked him if he had given an order to Hurley, and Lambert said that he had, and that he would come to the factory and see him about it on the following Monday, December 31st; but, in place of doing so, he sent the defendant a letter canceling the order on the same day, December 29th, and this was received by the defendant on the 31st at 9 a. m. At 12 m. of the same day, Hurley turned in his keys and delivered the itemized order to the defendant's bookkeeper. The defendant testified that the profit on the shoes would have been 25 cents a pair, and sought to recoup that loss. The presiding judge ruled that the damages were too remote, and directed the jury to return a verdict without deducting anything by way of recoupment. The case is here on an exception to that ruling.

The ruling was right. The cancellation of the order by Lambert was not an event which, according to common experience, was naturally and reasonably to be expected in case there was a delay in handing it in; and for that reason the case falls within Hoadley v. Transportation Co., 115 Mass. 304, 15 Am. Rep. 106, and Denny v. Railroad Co., 13 Gray, 481, 74 Am. Dec. 645, and not within Fox v. Railroad Co., 148 Mass. 220, 19 N E. 222, 1 L. R. A. 702, or Johnson v. Faxon, 172 Mass. 466, 52 N. E. 539.

Exceptions overruled.

(182 Mass. 231)

TAYLOR ▼. GODING. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 31, 1902.) LANDLORD AND TENANT-WRITTEN LEASE ORAL AGREEMENT-CONTRADICTION. 1. In an action for a balance due on a written lease, an answer setting up an oral agreement made before its execution, that if, during the term, the lessee should take a lease of another building of the lessor, and vacate the building first leased, the lessor would thereon surrender all rights under the first lease, and alleging that the lessee did so lease the other building, and vacate the first, stated no defense, as the agreement contradicted the express contract to pay rent.

Appeal from superior court, Worcester county; Edward P. Pierce, Judge.

Action by Ransom C. Taylor against Jacob L. Goding. From a judgment for plaintiff, defendant appeals. Affirmed.

Taft, Morgan & Stewart, for appellant. Rockwood Hoar, for appellee.

LATHROP, J. This is an action of contract on a written lease of a store to recover rent for the last five months of the term. The answer sets up an oral agreement made by the parties before the execution of the lease, that if, during the term, the lessee should take a lease of another store of the lessor, and should vacate the store first leased, the lessor would thereupon surrender all right under the original lease, and the lessee would be under no further liability thereon; that the lessee, relying upon the oral agreement and induced thereby, took a lease of another store of the plaintiff, and vacated the store first leased, before the beginning of the period of five months. To this answer the plaintiff demurred on the ground that the oral agreement contradicted and altered the terms of the written lease, and would be inadmissible in evidence, and that it was no legal defense to the action upon the lease. The superior court sustained the demurrer, and ordered judgment for the plaintiff, and the case is before us on the defendant's appeal.

We are of opinion that the oral agreement set up in the answer contradicted and altered one of the express terms of the written contract, namely, that relating to the payment of rent, and that, therefore, the answer set up no defense. Merrigan v. Hall, 175 Mass. 508, 56 N. E. 605, and cases cited. The case is not one of a collateral oral agreement as to a matter not mentioned in the written agreement, and not contradictory of it, and therefore does not fall within Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436. Judgment affirmed.

(182 Mass. 150)

MCDOWELL et al. v. ROCKWOOD et al. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 30, 1902.).

MECHANICS' LIENS-RIGHT TO LIEN-NOTICE TO OWNER-MORTGAGES-PRIORITY.

1. Where materials were furnished for a building under a contract with a person holding a contract to purchase, but who had no title to the land at the time, and the contractor did not give notice in writing to the owner of the land that he intended to claim a lien for such materials, as required by Pub. St. c. 191, § 3, he was not entitled to a lien as against a mortgagee of the purchaser.

2. Pub. St. c. 191, § 3, providing that no lien for materials furnished shall attach unless the person furnishing the same, before so doing, gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of the materials, that he intends to claim such lien, applies to cases in which labor and materials are furnished to65 N.E.-5

gether under an entire contract, in which it is impossible to separate the price of the labor from that of the materials.

3. Pub. St. c. 191, § 5, declares that a mechanic's lien shall not avail or be in force against a mortgage existing and duly recorded prior to the date of the contract under which the lien is claimed. Held, that the word "contract" in such section means a contract under which there is an existing right to a lien which may ripen into a lien without further act or concession on the part of the owner; and where the contractor at the time of the execution of a mortgage on the premises was not entitled to a lien for materials thereunder, for the reason that no notice was given to the owner of his intent to claim a lien as required by section 3, the purchaser not being the owner, the contractor was not entitled to a lien as against such mortgagee.

Exceptions from superior court, Suffolk county; Jas. B. Richardson, Judge.

Petitions by Robert H. McDowell and oth. ers against Edward D. Cobb and Jotham C. Rockwood and others to enforce mechanics' liens. Judgment for plaintiffs, and defendant Rockwood brings exceptions. Sustained.

Daniel L. Smith, Edwin C. Jenney, and Walter B. Grant, for petitioners. Wm. H. White, for respondent Conant.

KNOWLTON, J. These are three petitions to enforce mechanics' liens. The claims in two of them are for labor and materials furnished in the erection of a building under an entire contract for a stated price, and the other is for materials only. The contracts were with a person who was not the owner when they were made, nor during the early part of the time while they were being performed, although he has since become the owner. He has been defaulted in these suits, and the party now defending is a mortgagee who took his title after the contracts were made, and after performance of them was begun, but before it was completed. We may assume, in favor of the petitioners, that there was no error in the trial of the first two issues to the jury, and that, on the evidence and the findings, the petitioners would be entitled to a lien against the owner if the rights of the mortgagee had not intervened. The third issue presented a question whether the labor and materials were furnished with the consent of the mortgagee. He objected to the framing of this issue on the ground that it was immaterial, and appealed from the order of the court directing it to be framed. We may also assume in favor of the petitioners that the proceedings on the trial of this issue were free from error, except for the reason that the issue was immaterial. After the jury had given answers upon these issues favorable to the petitioners, there was a hearing before the court upon an agreed statement of facts and the issues and answers. It appearing that the contracts relied on by the petitioners were not with the owner of the real estate, and that no notice was given of an intention to claim a lien for materials, the respondent requested

the presiding justice to rule that the title under the mortgage had priority over the claim of the joint petitioners, whose claim was for materials only, "for the reason that the owner of the premises was not the purchaser of the materials for which they claimed a lien, and that they did not, before furnishing said materials, give notice in writing to the owner of the premises, as required by section 3, c. 191, Pub. St." The presiding justice refused so to rule, and ruled that all of the petitioners were entitled to maintain liens upon the premises for the amounts set forth in their petitions, respectively, and "that said liens, and each of them, had priority over any right, title, or interest of the respondent in said premises," and the respondent duly excepted. "The court then ordered that the premises be sold for the purpose of satisfying the liens of the several petitioners, and the respondent, not waiving his exceptions, duly appealed." The statute referred to in the request for a ruling expressly provides that no lien shall be maintained for materials, if the purchaser is not the owner, unless a notice in writing of an intention to claim a lien is given to the owner before the materials are furnished. This covers the case in which the claim is for materials only. It has repeatedly been held to apply also to cases in which labor and materials are furnished together under an entire contract, in which it is impossible to separate the price of the labor from that of the materials. French v. Hussey, 159 Mass. 106, 34 N. E. 362; Angier v. Distilling Co., 178 Mass. 163, 59 N. E. 630. In each of the first two cases before the court the labor and materials were furnished under an entire contract, and there is no attempt to separate the amount to be paid for labor from that due for materials. See Pub. St. c. 191, §§ 2-6 (Rev. Laws, c. 197, §§ 2-6). It is therefore clear that at the time of the conveyance of the real estate, and at the time of the making of the mortgage, a part of the materials under an entire contract having been furnished, there was no lien for any part of the labor and materials, because no notice in writing had been given of an intention to claim a lien for materials. It is equally clear that, as the title then stood, the petitioners, under their contracts, could not create a lien for materials.

The petitioners rely on the rule stated in Countermanche v. Railway Co., 170 Mass. 50, 48 N. E. 937, 64 Am. St. Rep. 275, and Anderson v. Berg, 174 Mass. 404, 54 N. E. 877, under which it was held that, if real estate on which a lien is claimed is conveyed, and if the new owner accepts labor and materials subsequently furnished to him in the improvement of the property under conditions which would create a hen for that which is then furnished, there is not only a lien for the part so furnished, but, if it was under an entire contract, which includes that which was furnished before he became the

owner, his acceptance of further performance of the contract is an adoption as owner of all that had previously been done under it, and creates a lien for that which was furnished before he became the owner as well as for that which was furnished afterwards. In the first of these two cases referred to there is a plain intimation that such action by the new owner cannot create a lien as against an outstanding mortgage. It now becomes necessary to consider further the rights of mortgagees as against such action. Pub. St. c. 191, § 5 (Rev. Laws, c. 197, § 5), is as follows: "The lien shall not avail or be of force against a mortgage existing and duly recorded prior to the date of contract under which the lien is claimed." The obvious purpose of the legislature in this provision was to recognize the right of a mortgagee, who takes the title and succeeds to the rights of the owner, to take the property subject only to such liens, or rights to acquire a lien, as then exist against the owner. The word "contract" in this section means a contract under which there is an existing lien, or an existing right which may ripen into a lien without further action or concession on the part of the owner. The mortgagee takes the property as he finds it. If there is an existing lien upon it, it can be enforced, notwithstanding his mortgage. If there is a contract right, under which, as against the owner, the claimant can go on and create a lien without further action, recognition, or concession by the owner, the mortgagee takes subject to it. But the mortgagee takes the owner's legal title, and succeeds to his rights. After the mortgage is made, the owner, as against the mortgagee, can do nothing to create a lien. "The contract under which the lien is claimed" is not effectual to create a lien against the mortgage, if it requires, to give it efficacy, a subsequent act of acceptance or recognition by the owner. In the cases covered by the above-cited decisions on which the petitioners rely the contract was not effectual to create a lien at the time of the transfer of title to the new owner. It subsequently became so only by virtue of the act of the new owner after his acquisition of the title gave him the control of the property, with the power to create a lien upon it for materials by the mere acceptance of them under a contract, without notice in writing that the person furnishing them intends to claim a lien. After the owner has parted with his title to a mortgagee, he has no power, as against the mortgagee, to do that which will create a lien under a contract which was insufficient to give a lien against the owner of the title under conditions existing when the mortgage was made. The contract existing when the mortgage is made, in the case supposed, is not such a contract as is impliedly given effect against a subsequent mortgage by Pub. St. c. 191, § 5, because it is not a contract which then gives a lien against the

owner of the title. In the cases cited the lien for previously furnished materials was created only through the act of acceptance of the new owner in his new relation to the title, in reference to that which was subsequently furnished under an entire contract. When the materials were furnished and accepted under his original contract after his acquisition of the title, the purchaser was the owner, and as to them, in reference to the title which he then owned, no notice in writing was necessary. The principle applicable to his adoption or affirmance of the contract in this new relation is like that applicable to the ratification of an unauthorized act of an agent. So far as the principal is personally concerned, such a ratification relates back to the time of the act; but it has no effect against the rights of third persons acquired before the ratification. Sturtevant v. Robinson, 18 Pick. 175; Baird v. Williams, 19 Pick. 381; Whiting v. Insurance Co., 129 Mass. 240, 37 Am. Rep. 317. The consent of the mortgagee, found by the jury in answering the third issue, has no independent effect, for two reasons: First, the statute does not provide for the creation of a lien through the consent of a mortgagee, and no lien of this kind can come into existence except under the statute; and, secondly, under the statute the consent of a person holding the title does not give a lien for materials under a contract made with another person, unless a notice in writing of the intention to claim a lien is given to the holder of the title before the materials are furnished. In this respect the statute does not put a mortgagee in a worse position than a general owner.

A majority of the court is of opinion that the entry should be: Exceptions sustained.

(182 Mass. 243)

WORTHEN v. GARNO.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 31 1902.)

SALE OF STANDING TIMBER-WAY OF NECES

SITY-LICENSE.

1. While a conveyance of standing timber giving the purchaser the right to cut and remove it gives the purchaser a way by necessity, the land not bordering on a highway but in part on other land of the vendor, and in part on land of strangers, the purchaser is not entitled to use any way he chooses, though it affords him a reasonable means of ingress and egress, and was commonly used by others in passing between the wood lot and the highway, but his right to use a particular way depends on its being reasonably necessary.

2. Oral permission given by one selling standing timber to take it out a particular way over other land is but a license, not binding on a purchaser of the other land receiving a deed not mentioning it.

Exceptions from superior court, Worcester county; J. B. Richardson, Judge.

Action by Bessie E. Worthen against William A. Garno for trespass in connection with the removal of timber and wood, and for in

2. See Licenses, vol. 32, Cent. Dig. § 125.

jury from negligence in removing it. Verdict for plaintiff. Defendant excepts. Exceptions overruled.

C. E. Tupper, for plaintiff. Alvah M. Levy, for defendant.

LATHROP, J. The only questions raised in this case are to the refusal of the judge who tried the case to give the sixth request for a ruling, and to the rulings given on this subject. We are of opinion that the judge was right. The defendant justified his trespass by a written instrument which conveyed to him the standing wood and timber on a certain tract of land, and gave him the right to cut and remove the same during a period of three years. The land on which the wood and timber were did not border upon a highway, but in part upon other land of the plaintiff, and in part upon land of strangers. The instrument said nothing about the way over which the defendant was to haul the wood and timber, and he was entitled, as was conceded, to a way out by necessity. There were

two ways from the wood lot. One ran through the plaintiff's mowing land, and between his farm house and barn into a public road, called the "Kendall Road." This was the way the defendant used. The other ran through another part of the plaintiff's land, and also came out upon a public road. There was contradictory evidence on the question whether the second way out was practicable or convenient.

The defendant, having only a way by necessity, had no right to use any road, driveway, or cartpath he saw fit to choose across the plaintiff's land to the highway, even if it afforded him a reasonable means of ingress 'or egress, and was commonly used by other persons in passing between the wood lot and the highway. There was no evidence that before the alleged trespass any wood had been cut on the wood lot and hauled over the road to the highway. The sixth request was properly refused. Jones v. Percival, 5 Pick. 485, 16 Am. Dec. 415; Hoyt v. Kennedy, 170 Mass. 54, 56, 48 N. E. 1073.

We see no error in the instructions given. The judge left it to the jury, on all the evidence, to say whether it was reasonably necessary for the defendant to go out the way he did, and instructed them that, if it was reasonably necessary, the defendant was bound to use reasonable care in using the way so as not to do injury. The attention of the jury was fully called to the different phases of the case as presented by the evidence.

It appeared in evidence that the instrument under which the defendant justified was signed by the then owner of the land, one Blood, and that the plaintiff's title to the farm was derived by mesne conveyances from this person. Blood testified that at the time the purchase was made by the defendant he told him that he could use the road in question. The judge ruled that this was a revocable license