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cumstances here disclosed to the discretion | attorney for collection as you well know that of the court. Their denial manifestly was you will get your money some day with internot an abuse of discretion and presents no

est if it is in any way possible for me to do it." question of law.

Whatever else may be said about these Decree affirmed with costs.

words, it is plain that at most they amount only to a conditional promise to pay when

the promisor is able. There is no evidence (225 Mass. 226)

in the record that the condition has been GILL V. GIBSON.

performed by his becoming able to pay. (Supreme Judicial Court of Massachusetts. Mitchell's Claim, L. R. 6 Ch. 822, 828; Custy Essex. Nov. 28, 1916.)

v. Donlan, 159 Mass. 245, 34 N. E. 360, 38 Am. 1. LIMITATION OF ACTIONS 148(3)-Run St. Rep. 419. It was no new promise within NING OF LIMITATIONS–New “PROMISE. the statute. Wald v. Arnold, 168 Mass. 134,

Under Rev. Laws, c. 202, § 12, declaring 46 N. E. 419. that no acknowledgment or promise shall be evidence of a new or continuing contract tolling

[2] The defendant's letter to the plaintifr the running of limitations, unless such ac- of April 8, 1915, contained these words: knowledgment or “promise” is made by or con "If you will send me the dates and amounts tained in a writing signed by the party charge of payments, so that I can compare with my able, a letter written by a debtor, complaining account, I think a little later as soon as things of the placing of a note in the hands of an attorney for collection, and stating that the start up I may be able to do something for

you." note would be paid with interest if possible, is only a conditional promise to pay when the

This was not an unqualified acknowledg. maker should be able, and does not stop the ment from which a new promise may be inrunning of the limitations; there being no evi- ferred. Boynton v. Moulton, 159 Mass. 248, dence of the maker's ability to pay.

34 N. E. 361 ; Krebs v. Olmstead, 137 Mass. [Ed. Note.- For other cases, see Limitation of Actions, Cent. Dig. 597; Dec. Dig.

504; Gillingham v. Brown, 178 Mass. 417, 148(3).

60 N. E. 122, 55 L. R. A. 320; Weston v. For other definitions, see_Words and Phrases, Hodgkins, 136 Mass. 326. First and Second Series, Promise.]

There was nothing to indicate that the de2. LIMITATION OF ACTIONS Om 148(3)-RUN fendant had even been “able to do anything NING OF LIMITATIONS-NEW “PROMISE."

for” the plaintiff. Gillingham v. Brown, 178 In such case, a letter by the maker, stating that he might be able to do something for Mass. 417, 60 N. E. 122, 55 L. R. A. 320; the holder of the note, is not an unqualified Wenz v. Wenz, 222 Mass. 321, 110 N. E. 969. "promise" within the section, which will stop Exceptions overruled. the running of limitations; there being nothing to indicate that the maker had been able to make payment.

(225 Mass. 189) [Ed. Note.-For other cases, see Limitation of

HURNANEN V. GARDNER AUTOActions, Cent. Dig. 8 597; Dec. Dig. Omw148(3).)

MOBILE CO. Exceptions from Superior Court, Essex

(Supreme Judicial Court of Massachusetts. County; James H. Sisk, Judge.

Worcester. Nov. 28, 1916.) Action by Russell G. Gill against William 1. JUDGMENT 159 SETTING ASIDE DE0. Gibson. A verdict was ordered for de FAULT BEFORE JUDGMENT AFFIDAVITS

SUFFICIENCY. fendant, and plaintiff excepted. Exceptions

Affidavits, ascribing defendant's failure to overruled.

defend an action to a misunderstanding with Robt. E. Burke and Edwd. E. Crawshaw, his attorneys, held to sufficiently show a case

of accident or mistake, justifying setting aside both of Newburyport, for plaintiff. Edgar S. a default before judgment. Taft, of Gloucester, for defendant.

(Ed. Note.-For other cases, see Judgment,

Cent. Dig. 88 310, 312, 313; Dec. Dig. Om 159.) RUGG, C. J. [1] This is an action upon a 2. JUDGMENT M139 SETTING ASIDE DEpromissory note. The defense is the statute FAULT BEFORE JUDGMENT-POWER. of limitations. The plaintiff contends in

Under Rev. Laws, c. 173, § 54, the removal

of defaults before judgment is explicitly inavoidance of that defense that the evidence trusted to the sound discretion of the trial showed a sufficient acknowledgment and court. promise in writing within R. L. C. 202, § 12. [Ed. Note.-For other cases, see Judgment, Reliance in support of that contention is Cent. Dig. $8265–268; Dec. 'Dig. Om 139.) placed upon two letters of the defendant. 3. APPEAL AND ERROR 945 REVIEW The one under date of June 16, 1910, was


Ordinarily there can be no review of a written to a third person some time before court's discretionary ruling. the expiration of six years from the time of [Ed. Note.-For other cases, see Appeal and the last payment on the note. Its pertinent Error, Cent Dig. $ 3811; Dec. Dig. 945.) words are:

4. DAMAGES 224 ASSESSMENT OF DAM"I have received a notice

in regard

AGES-SETTING ASIDE. to the note of $500.

Now this seems

The power to remove defaults before judgvery hard to me as you well know that I should ment under Rev. Laws, c. 173, § 54, necessarily have paid the note and interest long ago if I involves the power to get aside an assessment had been able.

It seems as if in our of damages made by a jury after the default. relations that you might give me a little better [Ed. Note.-For other cases, see Damages, chance than to place this in the hands of an | Cent. Dig. § 529; Dec. Dig. Om 224.]

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5. DAMAGES w 224-JUDGMENT 151-SET- | entered by his firm in other cases returnable

TING ASIDE DEFAULT BEFORE JUDGMENT- at the same time as the plaintiff's action. PROCEDURE.

There were other affidavits tending to show A motion to set aside a default before judgment and an assesment of damages made by a that the defendant has a substantial defense jury is not governed by the procedure govern- to the plaintiff's cause of action. The plaining a motion for new trial and setting aside a tiff filed no counter affidavits. After a hearverdict.

ing, the judge allowed the motion of the de[Ed. Note.-For other cases, see Damages, Cent. Dig. 8_529; Dec. Dig. 'ww224; Judg. fendant to take off the default, set aside the ment, Cent. Dig. ss 296-298, 727, 730; Dec. assessment of damages, and granted leave Dig. Om 151.)

upon terms to the defendant to enter an apReport from Superior Court, Worcester pearance and to plead to the merits.

It is provided by R. L. C. 173, § 54, that: County; Henry A. King, Judge.

“Courts may, for good cause shown, extend Action by Frank Hurnanen, administrator, the time for entering an appearance, and may, against the Gardner Automobile Company in their discretion and upon terms, take off a From an order removing a default before default at any time before judgment.” judgment and setting aside an assessment These words are plain and explicit. They of damages, the plaintiff appeals and excepts confer upon courts in broad terms complete to allowance of motion. Case reported. Af- power to remove a default whenever in the firmed and remanded for further proceedings. exercise of judicial discretion a default ought

to be removed. J. G. Annala, of Fitchburg, for plaintiff.

The affidavits set forth facts sufficient to Jos. P. Carney and Herbt. W. Blake, both of

show that the failure of the defendant to apGardner, for defendant.

pear was due to accident and mistake. Since

according to the other affidavits the defendRUGG, C. J. [1-3] The only question pre ant had a defense to the plaintiff's cause of sented by this report is whether the superior action, manifest justice requires that the case court judge had power to remove a default should be tried on its merits and that the and permit the case to be tried on its merits. plaintiff should not recover a judgment The action is in tort for injuries alleged to against the defendant based wholly upon a have been sustained through the negligence default and a one sided trial in the absence of the defendant in operating an automobile. of the defendant. Service of the writ was made duly on the Whether a default shall be removed or not defendant. The defendant did not appear in rests, according to the express words of the response to the summons and later was de- statute, upon sound judicial discretion. In faulted. A jury was impanelled and by it ordinary cases there can be no review of the the damages sustained by the plaintiff were action of a court founded upon the exercise assessed. Thereafter and before judgment, of discretion. Edwards v. Willey, 218 Mass. a motion was filed in behalf of the defendant, 363, 365, 105 N. E. 986, and cases cited; Mass. alleging that the default had been entered Bonding & Ins. Co. v. Peloquin, 225 Mass. 30, against it through mistake and misunder-113 N. E. 574. The removal of the default in standing in failing to file an appearance, and the case at bar appears upon the face of the that there was a complete defense to the record to have been necessary in order to plaintiff's cause of action. This motion was prevent the entry of judgment against one supported by affidavits tending to show that who had had no opportunity to be heard. the defendant's property had been attached The facts set forth in the affidavits showed a on the writ, which had been dissolved by the sufficiently "good cause" to warrant the court giving of a bond under the advice of the de- in extending to fifteen days after the entry fendant's attorneys; that the defendant's of the order the time within which an appearpresident supposed the information given to ance might be entered by the defendant. the defendant's attorneys in connection with [4] The power to remove a default at any the execution of such bond was enough to in- time before judgment involves of necessity sure a defense being made, and he failed to the power to set aside all proceedings subse place the summons in their hands and did quent to the default, including an assessment not remember that he had been asked for it; of damages by a jury. The court was fully that the member of the firm of attorneys warranted in setting aside the assessment of consulted by the defendant in respect to the damages. bond asked that the summons be sent to his [5] The motion to remove the default and office for attention according to the custom set aside the assessment of damages was in of his office by the clerk having in charge the no proper sense a motion for a new trial. matter of appearances, and he supposed that There had been no contested trial. The prothis had been done (although in fact it had ceedings as to motions for a new trial and the not been done) and thought that appearance setting aside of a verdict, as those terms are had been made and answer filed until the day used in statutes and rules of court, have no after the assessment of the plaintiff's dam. relation to a motion like the present, which ages by the jury, and that appearances were is simply to remove a default with such in

ome For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MASS.DEC.111-115 N.E.-43

cidental relief as is essential in order to signal being given him to do so. The result give effect to the main remedy.

was that this block of granite not being diIn accordance with the terms of the report, rectly under the derrick boom swung “in the the order removing default and setting aside direction in which it must go in order to balthe plaintiff's assessment of damages is af- ance its center" struck the plaintiff (who firmed and the case is remanded to the su- apparently was standing in its path in place perior court for further proceedings accord- of bebind it) and caused the injuries here ing to law.

complained of. So ordered.

At the trial the plaintiff elected to go to

the jury on the fourth count in which he de (225 Mass. 197)

clared on the negligence of the defendant in SMOLLETT v. BALLOU.

employing an incompetent servant, namely,

the engineer who operated the derrick, one (Supreme Judicial Court of Massachusetts.

Norrie by name.
Norfolk. Nov. 28, 1916.)

(1.) Under the count of the declaration on 1. MASTER AND SERVANT 265(12) INJU- which the plaintiff elected to go to the jury


In a servant's action for injuries caused by rie was incompetent; that the defendant negligence of a fellow servant on the issue of knew or ought to have known that he was innegligence of defendant in employing an incom-competent; and that the accident was causpetent servant, the burden was on plaintiff to ed by his incompetence. prove that the fellow servant was incompetent, that defendant knew, or ought to have known,

[2] The only evidence of incompetence on that he was incompetent, and that the accident the part of Norrie (the engineer) was that was caused by his incompetence.

he was a drinking man and at times had [Ed. Note. For other cases, see Master and been under the influence of liquor while at Servant, Cent. Dig. 88 891, 906; Dec. Dig. Om

work. The plaintiff took the stand in his 265(12).]

own behalf and testified “that on the day of 2. MASTER AND SERVANT 279(4)-INJURIES the accident he was unable to state whether TO SERVANT-SUFFICIENCY OF EVIDENCE.

The only In a servant's action for injuries caused by Norrie had been drinking or not.” an alleged incompetent fellow servant, evidence other witness put on the stand by the plainheld insufficient to warrant a finding that the fel- tiff testified that on the day of the accident low servant was drunk at the time of the acci- “he [Norrie] looked all right. That is he dent. [Ed. Note.-For other cases, see Master and of the accident;" that on the day of the acci

looked all right from where I was the day Servant, Cent. Dig. § 978; Dec. Dig. 279(4).]

dent he had seen no "appearance" of Norrie

being drunk because he was not near enough Report from Superior Court, Norfolk to him; “I wasn't in the engine house at all County.

that day;" and in answer to the question Action by George F. Smollett against John “And you haven't the remotest idea whether O. Ballou. On report from the superior he was very sober or very drunk that day?” court. Judgment on verdict for defendant. he answered "The day of the accident? No." Wm. Flaherty and Walter J. O'Malley, Jr.,

The plaintiff has sought to avoid his failboth of Boston, for plaintiff. Dickson & ure to prove by direct evidence that Norrie Knowles, of Boston, for defendant.

was drunk at the time here in question by contending that the jury were warranted in

finding from the circumstances of the acciLORING, J. The plaintiff seeks in this dent that he was drunk then. In that conaction to recover for personal injuries suf-nection he has relied upon the case of Mcfered by him under the following circum- Phee v. Scully, 163 Mass. 216, 39 N. E. 1007. stances: He was employed by the defendant There is nothing in his contention and there in his business of quarrying stone. At the is nothing in that case which supports it. time in question he was at work with an- The entry must be other man in making fast the lines of a der

Judgment on the verdict. rick boom to a block of granite weighing some three tons. This was done by inserting the "dogs" in holes made for the purpose. These

(225 Mass. 183) "dogs" had to be held in position by the man

FOSTER v. FOSTER. making the derrick line fast to the stone un

(Supreme Judicial Court of Massachusetts. til the slack of the line had been taken up

Dukes. Nov. 28, 1916.) by the hoisting engine and the "dogs” had caught so as to hold. When the plaintiff and 1. DIVORCE 109 - GROUNDS – BURDEN OP

PROOF. the man working with him had placed the

In an action for divorce on the ground of "dogs" in the holes and were holding them desertion, the burden is on the libelant to satis(as they had to do in the method of proceed- fy the court that the libelee voluntarily and ing stated above) the engineer who was run- without justification left him with the intention

of not returning, that her refusal to cohabit with ning the derrick put on the power more him continued for three consecutive years next quickly than usual and perhaps without any prior to the filing of the libel, and that he did


not consent to the original separation or its | libelant to satisfy the court that the libelee continuance.

voluntarily and without justification left [Ed. Note.--For other cases, see Divorce, him with the intention of not returning; Cent. Dig. $8 351-364; Dec. Dig. 109.)

that her refusal to cohabit with him con2. DIVORCE 37(7)-GROUNDS_DESERTION, tinued for three consecutive years next prior CONSENT.

Separation by mutual consent does not to the filing of the libel; and that he did constitute desertion and is not ground for di- not consent to the original separation or to

its continuance. Separation by mutual con[Ed. Note.-For other cases, see Pivorce, Cent. sent does not constitute desertion. R. L. C. Dig. 8 113; Dec. Dig. Om 37(7).]

152, § 1; Lea v. Lea, 8 Allen, 418; Ford v. 3. DIVORCE 133(3)—GBOUNDS-DESERTION | Ford, 143 Mass. 577, 10 N. E. 474; Bradley v. -SUFFICIENCY OF EVIDENCE.

Where a husband, on his return home after Bradley, 160 Mass. 258, 35 N. E. 482. The absence, found the house closed, made little ef- judge found that the allegation of desertion fort to find his wife, and thereafter visited the was not in fact proved. Even assuming that house to procure his clothes, at which time his he credited the testimony of the libelant, he wife gave him his clothes and told him to get out and not return, held, that evidence of his well may have inferred from his conduct that acquiescence in her declaration that she would the separation was not against the will of the not live with him, and his failure for three years husband but was with his consent. There afterwards to seek a reconciliation, supported a finding against libelant on the issue of deser- were facts indicating such consent; among tion of the wife.

others, his lack of effort to find his wife (Ed. Note.-For other cases, see Divorce, when he found the house closed; his visit Cent. Dig. § 448; Dec. Dig. Om 133(3).) with her to the house, apparently to get his

Exceptions from Superior Court, Dukes clothes; his acquiescence in her excited de County; Frederick Lawton, Judge.

claration that she would not live with him ; Libel for divorce by John Foster against and his failure for three years afterwards, Annie L. Foster. Decree for libelee and libel- to ask his wife to come back or to make any ant brings exceptions. Exceptions overruled. attempt to effect a reconciliation. We cannot

B. T. Hillman, of Edgartown, and Henry say as matter of law that the judge was E. Cottle, of Brookfield, for libelant. Dexter wrong in finding that a case of desertion

was not made out. Having so found, he B. Pattison, of Boston, for libelee.

could not give the ruling requested. DE COURCY, J. The libelant assented to

Exceptions overruled. the statement of the evidence which was made by the trial judge and was as follows:

(225 Mass. 159) "I understand that the evidence of desertion O'CONNELL v. CITY OF WORCESTER. is substantially as follows: That in May, June or July of 1909, after the libelant had been

(Supreme Judicial Court of Massachusetts. away to get a yacht and had brought his yacht

Worcester. Nov. 28, 1916.) around to this town, Edgartown, he went to 1. ASSIGNMENTS 137-ACTIONS-EVIDENCE. his home, the house which was owned jointly Evidence held sufficient to warrant finding by him and his wife; that the house was locked that an order drawn on city treasurer to pay and the key which, by agreement between them money deposited with liquor license application should have been hung in the woodshed, was not to claimant if the liquor license should be rethere; that he went and spent the night, the fused, was intended to operate as an assignment first night, upon the yacht; that afterwards he subject to the contingency of granting the liqmade several visits to the house, either on that uor license. day or the following days; that each time he found the door locked and the key not hanging Cent. Dig. & 234; Dec. Dig. Om 137.]

[Ed. Note.-For other cases, see Assignments, in its customary place; that there came a time within a few days of his first visit to the house, 2. ASSIGNMENTS Om88 – MODE AND SUFFIafter his return with the yacht, when he and

CIENCY-WRITTEN ORDERS. his wife and a cousin of his wife named Manuel An order, given as security for a present inSilva went to the house together; that before debtedness, operates as an assignment. going in, when she got to the house, she forbade (Ed. Note.-For other cases, see Assignments, his going in with her and he remained outside. Cent. Dig. 88 135, 136; Dec. Dig. Om 88.] She went into the house and came out bringing 3. ASSIGNMENTS 137–ACTIONS-EVIDENCE. some of his clothes which she gave to him say

Evidence held sufficient to support a finding, 'Now get out of my sight; I never want to ing that order on city treasurer, drawn by apsee you again; I will never live with you again.' plicant for liquor license to pay the amount of Immediately following the words quoted, the the license deposit to the person from whom the wife went toward her sister's house and the applicant had borrowed the money if the license man toward the water-front, and they have should not be granted, was given as security never since lived together, and neither party for a present indebtedness. has since asked the other to live with him or her."

(Ed. Note.--For other cases, see Assignments,

Cent. Dig. § 234; Dec. Dig. 137.) The court then said:

4. ASSIGNMENTS 88-REQUISITES AND VA"Upon the foregoing facts, I am not satisfied LIDITY—POSSIBILITIES AND CONTINGENCIES. that the libelee deserted the libelant, and there An assignment as security for a present infore shall dismiss the libel."

debtedness may be qualified by a condition, [1-3] The only question before us is wheth- contingency, or limitation depending upon the er the judge erred in refusing to rule, as be a valid assignment.

happening of a future event, and nevertheless requested, that the libelant was entitled to

[Ed. Note.-For other cases, see Assignments, a decree of divorce. The burden was on the Cent. Dig. 88 135, 136; Dec. Dig. 88.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes



5. ASSIGNMENTS 73 MODE AND SUFFI- | thousand dollars from ‘Wm. J. Courtney and CIENCY-POSSIBILITIES AND CONTINGENCIES. Fred J. Courtney as W. J. Courtney & Co., to

An order on a city treasurer, drawn by applicant for liquor license to pay amount of apply on 1914 liquor license is granted.'' liquor license deposited to the person from The judge further found that the order herewhom applicant borrowed the amount, the li- | inafter referred to "was delivered to the cense should be refused, held a completed trans- treasurer by Parker when the check was deaction, by which the title to the fund passed to the claimant subject to be divested only in the posited and that in this particular he acted event the liquor license was granted, and was in behalf of the claimant

that the not a mere executory agreement of transfer. order was given by the Courtneys contempo

[Ed. Note.-For other cases, see Assignments, raneously with the loan as security therefor." Cent. Dig. $$ 139–142; Dec. Dig. On 73.]

The order is as follows: 6. BANKRUPTCY 159 PREFERENCES AND

"March 27, 1914. TRANSFER BY BANKRUPT. An insolvent debtor, before being adjudicat- "Harry C. Smith, City Treasurer of Worcester,

Mass. ed as bankrupt, may deal with his property as he chooses, so long as he does not give a pref "If we are not successful in having a liquor erence to any creditor or impair the value of license granted to us, pay to James Hanley his estate.

Brewing Company, Providence, R. I., or order, [Ed. Note. For other cases, see Bankruptcy, the sum of one thousand ($1,000) dollars deCent. Dig. 88 247, 248, 262, 268-281; Dec! posited with you this day, as advance payment Dig. Om 159.)

or deposit with our application for liquor li


"Fred J. Courtney." Where an insolvent debtor executed an as [1] We are of opinion that it could have signment as security for the loan of money to been found that there was an intention on be used as a deposit in applying for a liquor license, the assignment was not invalid as an the part of the claimant and the Courtneys unlawful preference, where the assignor sub- that the order should operate as an assignsequently became bankrupt.

ment of the amount deposited with the treas[Ed. Note.- For other cases, see Bankruptcy, urer, subject only to the contingency that Cent. Dig. 88 247, 248; Dec. Dig. w163.]

it might be retained by the treasurer in pay. Exceptions from Superior Court, Worcester ment of the fee due for the liquor license if County; C. T. Callahan, Judge.

granted. Action by Charles J. O'Connell, trustee, (2-5) The finding was warranted that the against the City of Worcester, James Hanley order was given as security for a present inBrewing Company, claimant. From a decree debtedness. An order given as security for for claimant, plaintiff brings exceptions. Ex. a present indebtedness operates as an asceptions overruled.

signment. Tripp v. Brownell, 12 Cush. 376; John H. Meagher, Emil Zaeder, Chas. J. Lannan v. Smith, 7 Gray, 150; Macomber v. O'Connell, and Chas. F. Boyle, all of Worces. Doane, 2 Allen, 541. The order in question ter, for plaintiff. John P. Halnon, of Worces. amounted to a present appropriation of the ter, for claimant.

entire fund in the hands of the treasurer,

subject only to the contingency that it might CROSBY, J. This is an action brought be retained by him in payment for the lige by the plaintiff as trustee in bankruptcy of uor license. The judge was warranted in William J. Courtney and Fred J. Courtney, finding that the money deposited with the for the benefit of the bankrupt estate. The city treasurer was the property of the claimclaimant contends that it is entitled to the ant. Providence Brewing Co. v. Maxwell, 222 fund in question by virtue of an order and an Mass. 123, 109 N. E. 816. An assignment is assignment, each of which is dated March not the less an assignment of a present in27, 1914. The case was tried before a judge debtedness even if it is qualified by some of the superior court, who made certain find-condition, contingency or limitation depending ings of fact and found for the claimant in upon the happening of a future event. Gibson the sum of $1,000, the amount of the fund. v. Cooke, 20 Pick, 15, 32 Am. Dec. 194; Park

The judge found that on March 27, 1914, hurst v. Dickerson, 21 Pick, 307; Bourne v. the Courtneys, as copartners, made ap- Cabot, 3 Metc. 305; Tripp v. Brownell, ubi plication for a license of the first class to supra; Butterick Lumber Co. v. Collins, 202 sell intoxicating liquors in the defendant Mass. 413, 422, 89 N. E. 138; Holmes v. city; that with their application they de Evans, 129 N. Y. 140, 145, 29 N. E. 233; posited with Harry C. Smith, the city treas. 5 Corpus Juris, 910, and notes. The order urer, a check for $1,000 payable to his order was not an executory agreement merely to and signed by the claimant; that the ap transfer the money deposited but was a complicants being without funds, borrowed from pleted transaction, by which, for a valuable the claimant the amount so deposited. The consideration, the title to the entire fund check was sent by the claimant to Henry L. passed to the claimant, subject to be divested Parker, an attorney at law in Worcester, only in the event of a liquor license being who represented both the claimant and the granted to the Courtneys. Courtneys in this matter; "thereupon Parker (6, 7) While the court finds that at the time delivered to the treasurer the check and took the loan was made the Courtneys were inhis receipt acknowledging the receipt of one solvent and that the claimant was aware of

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