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and consequently the policies if issued to them them. Two of the policies were issued in would have been wagering and speculative con- 1911, when Zephirin, the insured, had a talk tracts and against public policy.

(7) The delivery of the policies to the claim- with Ollvine Potvin, who was the widow of ants, who paid the premiums, even though under bis deceased brother, about getting himself best nothing more than a claim against the es in the same company and the policies to be an agreement with the assured, gives them at insured for her benefit, she to insure herself tate of the insured for the amount paid as pre transferred and delivered each to the other. miums.

Alvin G. Weeks and Severin M. Lamarre, Zephirin caused the agent of the insurance both of Fall River, for plaintiff. David Sils company to be sent to her and she had a verstein, of Fall River, for claimants Olivine policy of the same form issued upon her own


Later Zephirin brought two policies, Potvin and Delia Lafleur. Solomon Rosenberg, of New Bedford, for Adele Patenaude, which he had received from the company on

his own life, and delivered them, one to Oliadm'x, and Solomon Patenaude, claimants.

vine Potvin and the other to Delia Lafleur,

who was his niece, at the same time askRUGG, C. J. [1] This is an action of con- ing for the policy upon Olivine Potvin's life, tract brought by an administratrix to recov: which was delivered to him. In addition to er upon seven policies of Insurance issued the love and affection which existed between by the defendant upon the life of her intes- Olivine Potvin and Delia Lafleur with Zephtate. The insurance company interpleaded irin, as relatives, there was the further conacknowledging its liability upon the policies, sideration of the delivery to him of the poliaverring that certain other persons had de. cy on the life of Olivine Potvin, to which manded payment of it on the policies, and

no claim of ownership is made by her at bringing the moneys due on the policies Into present. These facts were known to the incourt to await inal judgment.

surance company. The premiums on these This procedure is within the express terms policies all were paid by Olivine Potvin and of R. L. c. 173, § 37, and was regular. Con Delia Lafleur, who retained possession of necticut Mutual Life Ins. Co. v. Cook, 219 the policies until after the death of Zephirin, Mass. 222, 106 N. E. 853, was a different kind when they delivered them to the insurance of case. The principle upon which it was decided does not prevent an adjudication of the company with the understanding that they

were to receive the money on the policies. rights of all parties to the present cause. The insured had lived with Olivine Potvin O'Brien v. Ancient Order of Workmen, 223 and Delia Lafleur at intervals for about Mass. 237, 241, 111 N. E. 955.

three years. The plaintiff is the widow and administra.

The policies all were issued upon the life trix of the estate of Zephirin Potvin, the 10- of Zephirin Potvin, to him as the assured. sured, having been married to hiin after the His interest in his own life supported each issuance of all the policies here in question. policy as an original contract when issued. All these policies were issued upon the life The claimants were relatives of the insured of Zephirin, payable upon his death to his by blood or connected by marriage. They “executors or administrators," no other bene had paid the premiums upon the policies in ficiary being named in the policies except which they severally were interested. They that payment by the insurer was authoriz- had possession of the policies upon an oral ed “to any relative by blood or connection agreement with the insured in substance to by marriage of the insured or to any other the effect that they were to have the benefit person appearing to said company to be of the policies in the event of his decease. equitably entitled to the same by reason

[2, 3] These facts warrant a finding that of having incurred expenses on behalf of the there was the equivalent of an unqualified insured for his or her burial or

oral assignment of each policy accompanied for any other purpose.” But this clause is by its delivery. This was sufficient in the not here pertinent because the insurer has absence of a prohibition of such' assignment not acted under it. Five of the policies were to transfer a right to the assignee or assignissued in 1906, when the insured was work

Leinkauf v. Calman, 110 N. Y. 50, 17 ing with his nephews, sons of a deceased sis- N. E. 389; Rahders v. People's Bank, 113 ter, Solomon and Henry J. Patenaude, in Minn. 496, 130 N. W. 16, Ann. Cas. 1912A, the latter's store, and were immediately 299; Evans V. Bulman, 91 Md. 84, 87, 46 turned over to Solomon and Henry J., the Atl. 315; Nashville Trust Co. v. First Nainsured asking them to take the policies, pay tional Bank, 123 Tenn. 617, 627, 134 S. W. 311. the premium, and help him, if it ever was It gave to the claimants at least an equitable necessary. They took the policies and paid interest in the policies. Campbell v. New the premiums (except that the widow and England Mutual Life Ins. Co., 98 Mass. 381, administratris of Henry paid after Henry's 389, 400; Herbert v. Simson, 220 Mass. 480, death), and they helped the insured the two 108 N. E, 65, L. R. A. 1915D, 733. Since the or three times which he requested. Solomon insurance company makes no objection the Patenaude and the administratrix of Henry plaintiff cannot complain that there has been J. Patenaude, being still in possession of no formal assignment or that the claimants these policies, claim the amounts due upon have no interest in the life of the insured.



Dixon v. National Life Ins. Co., 168 Mass. 48, commission unless he made an arrangement 46 N. E. 430.

with mortgagees whereby they should take new The delivery of the policies under the cir- mortgages, and the broker did not bring about

such arrangement, he was not entitled to comcumstances here disclosed operated as an mission. assignment of the beneficial interest in them [Ed. Note. For other cases, see Brokers, to the exclusion of the personal representa- | Cent. Dig. $ 70; Dec. Dig. Om49(1).) tives of the insured. King v. Cram, 185 Mass. 3. APPEAL AND ERROR @w205_RESERVATION 103, 69 N. E. 1049; Knowles v. Knowles, 205

OF GROUND OF REVIEW-EXCLUSION OF EVI. Mass. 290, 294, 91 N. E. 213.

Where no statement was made of what [4] There is nothing to indicate that the plaintiffs expected to prove by a witness, exceppolicies were wagering contracts. An as

tions to the exclusion of his testimony can be

overruled. signee of a life insurance policy need have no insurable interest in the life of the insured. Error, Cent. Dig. 88 1281, 1282; Dec. Dig.

[Ed. Note.-For other cases, see Appeal and As was said by Hammond, J., in Brogi v. em 205.) Brogi, 211 Mass. 512, at 515, 98 N. E. 573, 4. APPEAL AND ERROB 853–CONSTRUCTION 574:

OF CONTRACT_RULING UNEXCEPTED TO. “The law in this commonwealth has been set

Where the trial judge ruled as to the true tled, and it is now held, in accordance with construction of the written agreement in suit, what seems to be the great weight of authority, and no exception was taken to the ruling, the that in the absence of any evidence indicating construction placed upon the agreement by the that the transaction was intended as a wager- trial judge must be taken as true for purposes ing contract it is not necessary that the bene of the case on appeal. ficiary, or assignee should have an insurable in (Ed. Note.-For other cases, see Appeal and terest."

Error, Cent. Dig. 88 1524, 3405; Dec. Dig. Om

853.] To the same effect is Grigsby V. Russell, 222 U. S. 149, 32 Sup. Ct. 58, 56 L. Ed. 133,


FECTING WRITING. 36 L. R. A. (N. S.) 642, Ann. Cas. 1913B, 863. In suit for refusal to convey realty, where, This is enough for the decision of this case by the contract of sale, a certain amount was without intimating whether under the cir- to belong to the seller, testimony of the broker cumstances the claimants may have had an disposing of the amount when he was given in

as to what instructions were given him about insurable interest.

structions to see construction mortgagees whom The fact that the premiums were paid in he was to endeavor to persuade to take new the instant cases by the claimants under mortgages was incompetent as varying a writ

ing. agreements distinguishes them from Lewis v.

[Ed. Note.-For other cases, see Evidence, Metropolitan Life Insurance Co., 178 Mass. Cent. Dig. 88 1855–1857, 1859, 1860; Dec. Dig. 52, 59 N. E. 439, 86 Am. St. Rep. 463. The 413.] plaintiff's first, fourth and seventh requests 6. STPULATIONS Om 14(5) TRIAL AGBEEfor rulings rightly were denied, and the gen

MENT-CONSTRUCTION-EVIDENCE. eral finding for the claimants must stand.

In consolidated actions by a buyer of realty

for refusal to convey, and by the broker for comThe case has been decided on its merits mission, where there was a trial agreement and no question of practice need be consider that both plaintiffs were entitled to recover, or ed. The demurrer rightly was not sustained construction of the agreement

was that, if de

that neither was entitled to recover, the proper and the exceptions must be overruled.

fendant seller was bound to convey to plaintiff So ordered.

buyer, plaintiff broker had earned a commis

sion, and so was entitled to recover in the sec(225 Mass. 177)

ond action, and that, on the other hand, if

plaintiff buyer was not entitled to a conveyance COHEN V. EDINBERG.

from defendant seller, plaintiff broker was not

entitled to a commission, and so was not entitled ROSENBERG V. SAME.

to recover in the second action, so that, though (Supreme Judicial Court of Massachusetts.

evidence of oral instructions given by the seller Worcester, Nov. 28, 1916.)

to the broker, before the written agreement be

tween the buyer and seller was made, would 1. VENDOR AND PURCHASER 345-REFUSAL have been competent in the action brought by TO CONVEY-LIABILITY.

the broker against the seller, it was rendered Where a written agreement for the purchase incompetent by the agreement. of land provided that arrangements were to be [Ed. Note. For other cases, see Stipulations, made with parties holding construction mort- Cent. Dig. § 29; Dec. Dig. Om 14(5).] gages whereby the mortgages should be discharged and new mortgages given, and that, if ar- 7. EVIDENCE 424—PAROL EVIDENCE AFrangements with the mortgagees could not be FECTING WRITING-ACTION BY ONE NOT A perfected, the agreement should be void, and

PARTY TO AGREEMENT. the broker on whom the duty lay to do so failed

In a realty broker's action for commission to procure the agreement by the construction against the seller of land, the broker's evidence mortgagees to take new mortgages, the seller of oral instructions, given him by the seller be was not liable to the buyer for refusal to con- fore the written agreement between the seller vey.

and the buyer of the land was made, and con[Ed. Note.-For other cases, see Vendor and trary to such agreement, is competent. Purchaser, Cent. Dig. 88 1036-1038; Dec. Dig. [Ed. Note.-For other cases, see Evidence, 345.]


ER 350-MATERIALITY OF EVIDENCE. Where a contract for the sale of realty pro In consolidated actions by a buyer of realty vided that the broker should not be entitled to for refusal to convey, and by a broker for com

mission, where the broker's failure to perfect and three new mortgages given them as their an arrangement with construction mortgagees, interests may appear totaling in amount $5,whereby they were to take new mortgages in place of those held, terminated the written agree- 550.” The written agreement ended with this ment for sale of the land, it was incompetent provision : to prove by the broker what the construction

"If said installments (by which the new sec mortgagees claimed to be the amount due them. ond mortgages amounting to $5,550 were to be

[Ed. Note.-For other cases, see Brokers, paid) cannot be apportioned satisfactorily to Çent. Dig. $ 111; Dec. Dig: 85(6); Ven- Barnes and Wood, or if, however, said arrange dor and Purchaser, Cent. Dig. 88 1043–1046; ments with said Barnes and Wood cannot be Dec. Dig. 350.)

perfected, this agreement is to be void and of no 9. VENDOR AND PURCHASEB 79 CON effect and the deposit herein named is to be reSTRUCTION OF CONTRACT.

turned to party of second part. If said ar The provision in a written agreement for the rangements can be perfected, either party failing sale of realty that the agreement was to be to carry out terms of this agreement shall for void if arrangements with construction mort- feit to the other as liquidated damages the sum gagees whereby they should take new mortgages of two hundred dollars. If said arrangements in place of those they held "could not be per- cannot be perfected as aforesaid with Barnes fected" must be construed to mean if the ar- and Wood, a broker's commission is not to be rangements with the construction mortgagees paid to Harry Rosenberg by party of the first "are not perfected.”

part. If same are perfected, Rosenberg is to (Ed. Note.—For_other cases, see Vendor and receive commission from party of the first part” Purchaser, Cent. Dig. 88 7, 8, 127-131; Dec.

- that is to say, from Edinberg. Dig. On 79.)

By the true construction of the written Exceptions from Superior Court, Worces- agreement the arrangements (by which ter County; Wm. C. Wait, Judge.

Barnes and Wood were to take new second Actions by Imen Cohen and by Harry Ros- mortgages amounting to $5,550 in place of enberg against David Edinberg. There was those then held by them) were to be made a finding for defendant in both cases, and by Rosenberg. It was expressly stipulated plaintiffs bring exceptions. Exceptions over- in the written agreement that Rosenberg bad ruled.

to perfect those arrangements to earn his Amos T. Saunders, Simon G. Friedman, commission. Rosenberg was not a party to and Paul D. Howard, all of Worcester, for the written agreement, but as between Cohen plaintiffs. Marvin M. Taylor and Marvin C. and Edinberg, who were the parties to it, the Taylor, both of Worcester, for defendant

arrangements were to be made by Rosenberg.

Rosenberg undertook to make those arrangeLORING, J. The only questions in these ments, but failed in his attempt. He protwo cases arise out of exceptions taken to the cured agreements from Barnes and Wood, exclusion of evidence.

but those agreements gave to Barnes and The cases were tried by a judge sitting Wood 'the $1,200 which by the terms of the without a jury. The facts found by him written agreement was to be received by Edwere in substance these: Cohen (the plain- inberg as part of the purchase money on tiff in the first action) made a written agree making the conveyance. ment with Edinberg by which he agreed to The first action was brought by Cohen (the buy and Edinberg agreed to sell to him three purchaser of the land) on the ground that parcels of land. The land in question was Edinberg wrongfully refused to make a consubject to first mortgages amounting in the veyance. The second was brought by Rosenaggregate to $12,500. The purchase money berg to recover a broker's commission. was $19,250, to be paid as follows: $12,500 [1, 2] On these facts neither plaintiff was by Cohen assuming the first mortgages; $200 entitled to recover. The written agreement was paid to a third person as a deposit on between Cohen and Edinberg had come to an the making of the contract; $1,000 (made up end on Rosenberg's failure to procure an of $800 in cash and a note for $200) was to agreement by Barnes and Wood to take the be paid on the delivery of the deed; the re- new second mortgages in place of those then maining $5,550 was to be paid by the pur- held by them and this same failure on Rosenchaser's notes amounting to that sum secured berg's part was fatal to his claim that he had by second mortgages on the land conveyed to earned a commission if the statement in the be paid in certain installments specified in written agreement between Cohen and Edinthe written agreement. At the date of the berg was correct as to the conditions under written agreement one Wood and one Barnes which a commission was to be taken to have held construction mortgages on the land in been earned by him. question amounting in the aggregate on their “These cases were tried together and it was face to $10,000. At that time there was due agreed that both plaintiffs were entitled to reon these mortgages to Wood the sum of $3,500 cover or that neither was entitled to recover. "and a large sum the exact amount of which At the trial Rosenberg was asked by his was not shown in evidence was due to counsel what instructions were given him Barnes." It was provided in the written about disposing of the cash when you were agreement that arrangements were to be given instructions to see Mr. Barnes and Mr. made with Wood and Barnes "whereby the Wood." Upon Rosenberg's stating that those mortgages held by them are to be discharged instructions were given him before the writ

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

ten agreement between Cohen and Edinbergenberg and Edinberg. But the rights be was signed the judge ruled that the question tween Rosenberg and Edinberg were dependwas not competent and an exception was tak- ent upon the rights between Cohen and Eden by counsel who appeared for both plain- inberg. If Edinberg was bound to convey to tiffs. This is the first exception now before Cohen, Rosenberg had effected a sale and so us. Later on in the trial Rosenberg was ask- had earned a commission. The question ed whether during his talks with Wood and whether Edinberg was bound to convey to Barnes there was anything said with ref-Cohen and thus inferentially whether Rosenerence to the exact amount that was due to berg had earned a commission was to be tried either one of them. The witness answered out in the first action. It was true, there “Yes.” To this question and answer counsel fore, that the right of Rosenberg to a comfor the defendant objected, the same were ex- mission depended upon the result of the first cluded by the court, and to that exclusion the action brought by Cohen against Edinberg. plaintiffs took an exception. This is the sec- In that sense it was true that "both plainond exception now before us.

tiffs were entitled to recover or that neither [3] Both these exceptions might be dispos- was entitled to recover." We are of opinion ed of on the ground that no statement was that the trial agreement must be so construmade of what the plaintiffs expected to prove. ed, namely, to mean that: If Edinberg was But we prefer to base our opinion on the fact bound to convey to Cohen, Rosenberg had that no matter what the plaintiffs expected earned a commission and so was entitled to to prove there is nothing in either exception. recover in the second action; and that, on

[4, 5] As we have already said, the $1,200 the other hand, if Cohen was not entitled to (made up of the $200 deposit, the $800 cash a conveyance from Edinberg, Rosenberg was and the $200 note) by the terms of the writ- not entitled to a commission and so was not ten agreement between Cohen and Edinberg entitled to recover in the second action. was to belong to Edinberg. It seems to be The result is that although evidence of so on the true construction of the written oral instructions given by Edinberg to Rogagreement. But even if that were not so it enberg before the written agreement between must be taken to be the true construction of Cohen and Edinberg was made would have the written agreement for the purposes of been competent in the action brought by Rosthis case. The judge who tried the case so enberg against Edinberg had it not been for ruled and no exception was taken to that rul- the trial agreement they were rendered ining. It follows that this evidence was not competent by force of that agreement. It competent in the first action brought by Co- follows that the first exception must be overhen on the ground that Edinberg had wrong- ruled. fully refused to convey the land to him. At [8, 9] Even if it be true that the claim the trial and at the argument here both made by Wood and Barnes as to the amount plaintiffs were represented by the same coun- due to them is evidence of what that amount sel. The learned counsel has contended that was, it was not competent to prove what they although originally this evidence was not claimed that amount to be. Rosenberg had competent in the action brought by Cohen failed in securing from Barnes and Wood against Edinberg it was competent in the ac- an arrangement by which they were to take tion brought by Rosenberg against Edin- new second mortgages amounting in the agberg; it was competent in that action be- gregate to $5,550 in place of those then held cause Rosenberg was not a party to the writ- by them. He had failed because the agreeten agreement; and being competent in that ments procured by him from Barnes and action it enabled Cohen (if the jury believed Wood were not within the terms of the writit) to recover in the first action under the ten agreement between Cohen and Edinberg. trial agreement "that both plaintiffs were That brought the written agreement between entitled to recover or that neither was enti- Cohen and Edinberg to an end. Under these tled to recover."

circumstances it was of no consequence what [6, 7] In other words the plaintiffs' con- the amounts were which were due under the tention is that the true construction of this mortgages which were then held by Barnes trial agreement is this: If Rosenberg by and Wood. The provision in the written reason of oral instructions given to him by agreement between Cohen and Edinberg that Edinberg before the written agreement be- that agreement is to be void and of no eftween Cohen and Edinberg was signed is fect "if said arrangements with said Barnes entitled to a commission the trade made be- and Wood could not be perfected” must be tween Coben and Edinberg by the written construed to mean “if said arrangements agreement is to go for nothing and Edinberg with said Barnes and Wood are not perfectis to be liable to Cohen for not making a con- ed" and this construction of those words was veyance when by the written agreement be- assumed by the parties when they provided tween them he was not bound to make one. later on in the same written agreement that It is hard to believe that that is the true Rosenberg was to receive a commission “It construction of the trial agreement. The the same are perfected.” It follows that rights between Cohen and Edinberg were the second exception must be overruled.

(225 Mass. 199)

| plaintiff) subsequently sold it for a substanWILLIAMS V. SNEIRSON.

tially larger sum; but that was after the (Supreme Judicial Court of Massachusetts. property had been improved by the expendiSuffolk. Nov. 28, 1916.)

ture of more money. 1. MORTGAGES 319(3)-FORECLOSURE-DE [3] 2. The contention that the plaintiff FICIENCY IN PERSONAL LIABILITY EVI

agreed to accept the property in payment of DENCE

In an action to recover a deficiency judg. the note is not supported by the testimony of ment against the mortgagor for the balance due the defendant, and is expressly negatived by after foreclosure and sale, evidence held ipsuffi. that of the plaintiff. Indeed the only concient to show that payment had been made out sideration for the promise to cancel the note of insurance money to the mortgagee to apply on the indebtedness, where such insurance mon- set up in the answer, is that "he would allow ey had been expended on improvements on the the plaintiff to foreclose his mortgage.” This property.

the plaintiff had a right to do, as the mort[Ed. Note.-For other cases, see Mortgages, Cent, Dig: Š8 863, 875, 913, 1366; Dec. Dig: gage was overdue. 319(3).)

3. The foregoing disposes of the exceptions 2. Mortgages em 360_FORECLOSURE BY to the Judge's charge, and of all the defendERCISE OF POWER OF SALE-REGULARITY. ants' requests that were supported by evi

Evidence examined, and held insufficient to dence, and are now relied upon. show that foreclosure proceedings failed to com

Exceptions overruled. ply with statutory requirements.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 1075-1077 ; Dec. Dig. On360.]


CO. Testimony that mortgagor agreed to allow mortgagee to foreclose in consideration of can

(Supreme Judicial Court of Massachusetts. cellation of the mortgage note held insufficient

Bristol. Nov. 28, 1916.) to show payment of the indebtedness in property, and thus defeat an action to recover the 1. COURTS 97(5) DECISION OF FEDERAL deficiency due after foreclosure and sale.

SUPREME COURT-LIMITATION OF LIABILITY [Ed. Note. For other cases, see Mortgages, -INTERSTATE SHIPMENT. Cent. Dig. $8 863, 875, 913, 1366; Dec. Dig. The decision of the United States Supreme Ow319(3).)

Court that where alternate rates, clearly based Exceptions from Superior Court, Suffolk upon valuation, are offered an interstate carrier

may limit its liability by special contract is bindCounty; Jabez Fox, Judge.

ing on other courts. Action by William Williams against Sam [Ed. Note. For other cases, see Courts, Cent. uel L. Sneirson. Judgment for plaintiff, and Dig. § 332; Dec. Dig. Om97(5).] defendant brings exceptions. Exceptions 2. APPEAL AND ERROR 842(8)-REVIEWoverruled.


As the Supreme Judicial Court sitting in Wm. A. Parker, of Boston, for plaintifr. banc has no jurisdiction to determine facts in Jacob W. Tushins, of Boston, for defendant. actions at law, but can only decide questions

of law, and as the question whether the markDeCOURCY, J. The note in suit, dated ings on paper are legible or indecipherable is a May 1, 1909, and signed by the defendant, question of fact, the only question of law that

can be presented where the original instrument was endorsed to the plaintiff in April, 1913. is made a part of the exceptions is whether there It was secured by a mortgage of real estate. was any evidence to support the finding. This action was brought to recover the bal [Ed. Note.-For other cases, see Appeal and ance of the note after crediting the net pro- Error, Cent. Dig. 8 3327; Dec. Dig. Om 842(8).] ceeds of the foreclosure sale of June 30, 3. APPEAL AND ERROR O 219(2) — REVIEW 1913. The defences relied on were payment


Where no rulings were asked as to the effect and an alleged oral agreement by the plain- of an exhibit and the judge did not make any tiff to accept a deed of the property in pay- finding respecting it, or decide whether it was ment of the note.

legible or not, although made a part of the excep[1, 2] 1. There was no evidence to warrant tions, it cannot affect the determination of the a finding of payment of any sum other than

case presented on the record. the $650 credited on the note. The $112 re- Error, Cent. Dig. 88 1322, 1323; Dec. Dig. Om

[Ed. Note. For other cases, see Appeal and ceived at some time from the insurance com- 219(2).] pany, was applied in repairing the property. 4. CARRIERS Om 53-CARRIAGE OF GOODS BILL Assuming that the validity of the foreclosure OF LADING.

The bill of lading required to be issued by a pears that they were in accordance with the Amendment to Hepburn Act (Act June 29, 1906,

carrier of interstate commerce by the Carmack statutory requirements. There was no direct c. 3591, § 7, pars. 11, 12, 34 Stat. 593 (U. S. evidence that the amount paid for the proper- Comp. St. 1913, 8, 8592]), constitutes the conty was inadequate; and the mortgage given tract between the shipper and the carrier. to the plaintiff by the purchaser at the forecent. Dig. $g 131, 165-167; Dec. Dig. Om 53.)

(Ed. Note.- For other cases, see Carriers, closure sale included the cost of contemplated improvements in addition to the purchase 5. CARRIERS em 63—CABRIAGE OF Goods—BILL

OF LADING-SHIPPING ORDERS. price. There was evidence that Tower (who Where a contract, restricting defendant carapparently bought in the property for the Irier's liability in the bill of lading limited the

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

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