claimant's agent handing the papers to the officers to see what endorsement if any was made thereon, or to ascertain where the papers were deposited. The claim was filed within the statutory requirement when delivered to, and received by them. Wood v. Simons, 110 Mass. 116, 117; Reed v. Acton, 120 Mass. 130. The claim of Jenkins Brothers should not have been allowed. The statement sent by registered letter to each of the officers who signed the contract, and to the mayor then in office and to the clerk of the committee on city property, although duly received was not filed with the proper officers in conformity with the statute. It therefore becomes unnecessary to consider the further question whether this claim was seasonably presented. The master having found that the contractor and bankrupt failed in performance, the city upon default was author in their respective statements remained un-, in proper form and within the time prescribpaid. But to obtain the benefit of the bonded were delivered to the mayor and the chairgiven to the city by the bonding company as man then in office by a deputy sheriff acting security for payment by the contractor of for the company, who is to be treated as its their several demands, each appellant was re-agent for this purpose, and not as an officer quired to file with the officers who contract in engaged in the service of civil process. The behalf of the city, "a sworn statement of his trustees urge that what was done did not conclaim within sixty days after the completion stitute a filing within the statute. But useof the work." St. 1904, c. 349, re-enacted in less and vain formalities are not essential. St. 1909, c. 514, § 23. The remedy being cre- The word "file" as there used is equivalent ated by statute a compliance with its provi- to the words "give notice to the officers" or sions is requisite to the establishment of an "serve notice upon the officers" in the manner equitable lien on the security. Tower v. Mil-prescribed. It was unnecessary for the ler, 211 Mass. 113, 114, 97 N. E. 748. The reason why the claim should be filed as the statute requires is for the protection of the city as pointed out in Tower v. Miller. It is plain that if the office is vacated by resignation or failure of re-election the former incumbent owes no further duty of supervision and of administration to the municipality in whose behalf the contract was made. While under section 23, the security taken whether "by bond or otherwise" can be marshalled for the benefit of those who perform or furnish labor or materials used, section 22 confers upon workmen a right of action against the city for unpaid labor, and if the plaintiff recovers the city can obtain indemnity under the bond where the instrument so provides. St. 1904, c. 349, R. L. c. 25, § 57. But if the signatory officers are not continued in office until the contract is fully performed and for sixty days thereafter, their successors cloth-ized under article five of the contract to comed with the same powers become the officers, with each of whom the claim is to be filed. The officers during the entire period shown by the record who were empowered under the ordinances to execute contracts authorized by the city council for the erection of a new high school building were the mayor, and the chairman of the committee on city property. If the mayor and chairman who signed for the city had continued in office a filing of the claim with each of them would have satisfied the statute. But upon their retirement the claims should have been filed with their successors. The filing of a claim with the city clerk, or the city treasurer, or the clerk of the committee not having been authorized, and the claims of the appellants never having been filed with the mayor and with the chairman of the committee on city property in office when the alleged right of participation accrued, these debts were rightly disallowed. We express no opinion on the question whether the filing would have been sufficient if it appeared that the chairman actually received the papers from the clerk of the committee before the limitation had expired. The remaining questions are presented by the appeal of the trustees. The statements of the debt due to the New England Iron Company plete the work and to deduct the cost from (225 Mass. 255) REARDON et al. v. REARDON et al. (Supreme Judicial Court of Massachusetts. Essex. Nov. 29, 1916.) 1. EQUITY FINDINGS ALIKE." 409-REFERENCE TO MASTEREFFECT- "USE THE CHILDREN In a suit to establish a trust in favor of all the children in lands conveyed by the mother to one child, where the master found that the property was conveyed by the father to the mother under an agreement that the mother would use the children alike, an inference of fact by the judge that the words "use the children alike" did not mean an agreement to dispose of the property equally among the children or to the children at all is justified as a logical inference from the facts found and from the natural claim of the wife that she should have the property which resulted as the fruit of the joint labor and sacrifice of herself and husband, and that she should be left to deal fairly with those of her own flesh and blood. [Ed. Note.-For other cases, see Equity, Cent. Dig. 88 904, 920-923; Dec. Dig. 409.] 2. APPEAL AND ERROR 1022(2)-REVIEWFINDINGS OF FACT. The finding of fact by the judge and the master, supported by reported testimony and by subsidiary facts, cannot be said to be clearly wrong. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1416; Dec. Dig. 1022(2).] Appeal from Superior Court, Essex County; Robert F. Raymond, Judge. Bill in equity by Philip J. Reardon and others against Ann C. Reardon and others to have a trust declared in certain property. Decree for defendants, and plaintiffs appeal. Affirmed. Guy Newhall and John M. Harney, both of Lynn, for appellants. Edwd. S. Underwood and Henry R. Mayo, both of Lynn, for appellees. filed with the provision requiring her to procure Philip's consent in mortgaging the property. The wife requested her husband to convey the property to her, impressing upon him "that she had worked hard in her younger days and did not care how hard she worked; that she had really slaved in her younger days to keep a roof over her head." The husband was persuaded and conveyed the property to his wife June 14, 1905. [1] Out of conflicting oral testimony the master finds that the wife "made, in substance, an agreement that, if he would deed the property to her, she would use the children alike; and that he transferred said property to her because of said agreement and relying upon it." As a supplementary inference of fact, made necessary by the absence of a finding of fact by the master, the judge found that the words "use the children alike," or equivalent words, "did not mean, and were not understood to mean, any agreement to dispose of the property equally among the children or even to the children at all." While it might well have been inferred from all the circumstances, including the terms of the will of the husband, that the agreement "to use the children alike" had reference to and was intended to provide for an equal division of such property as remained unexpended at the death of the wife, nevertheless, when consideration is given to the natural, just and legitimate claim of the wife that she should have the property which the husband possessed as the fruit of his and her joint labor and sacrifices, and that she "should be left to deal fairly and justly with those of her own flesh and blood, and when regard is had to the fact that the agreement in dispute is meager, is bare of words of certainty, and is capable of diverse interpretations, the inference of fact found by the judge, as a logical conclusion from the facts found by the master, was justified. American Circular Loom Co. v. Wilson, 198 Mass. 182, 200, 84 N. E. 133, 126 Am. St. Rep. 409; Smith v. Kenney, 213 Mass. 6, 99 N. E. 468; Fairbanks v. McDonald, 219 Mass. 291, 106 N. E. 1000. PIERCE, J. No exception was taken to the master's report, and it establishes, with the inferential facts found by the judge in response to the request of the plaintiffs to report the material facts, under R. L. c. 159, 23, the following facts: On July 18, 1904, Jeremiah Reardon, being then seised of certain real estate, made a will leaving said real estate to his wife for life and after her death to his children, share and share alike. The wife, Ann C. Reardon, was nominated executrix and was empowered to mortgage the real estate and to make necessary repairs or desired improvements with the written consent of the plaintiff Philip J. Rear-wife at the time of this conveyance underdon. With the finding that there was no agreement to dispose of the property equally among the children, the remaining facts warranted the finding of the judge and of the master "that both Jeremiah Reardon and his stood that the property was to be absolutely Ann C. Reardon's and that she was to have full power of disposing of the property as she saw fit." Prior to the time of their deaths, Jeremiah and Ann lived upon the estate with their unmarried daughter, Anastatia. All the other children were married and living away [2] The finding of the judge and of the from their father's house. Neither Mrs. master "that the deed conveying said real Reardon nor any of the children, except Phil- estate to Anastatia was made by her [Ann] ip, knew of Mr. Reardon's purpose to make a voluntarily without being unduly or impropwill until after its execution. Before Mr. erly influenced thereto by Anastatia and that Reardon's death, his wife learned of the con- she so made it because she desired to prefer tents of the will and was very much dissatis- Anastatia on account of the care she had For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes been given by her daughter for many years and because she thought she might do this without injustice to the other children, and that at the time of making said deed she was of sound mind," cannot be said to be clearly wrong, as it is supported by reported testimony and by subsiduary facts. HarveyWatts Co. v. Worcester Umbrella Co., 193 Mass. 138, 142, 78 N. E. 886, and cases cited. We do not find it necessary to decide. whether a constructive trust could be enforced were the facts such as they are claimed to have been by the plaintiff. See Basford v. Pearson, 9 Allen, 387, 85 Am. Dec. 764; Twomey v. Crowley, 137 Mass. 184; Moran v. Somes, 154 Mass. 200, 28 N. E. 152; Ames Lectures on Legal History, 429, 431. Compare 12 Mich. Law Rev. 444. The facts as found do not establish an express or constructive trust and the decree must be affirmed. So ordered. (225 Mass. 300) JACOBS V. SAPERSTEIN. (Supreme Judicial Court of Massachusetts. Suffolk, Dec. 1, 1916.) 1. BANKRUPTCY 303 (1) RECOVERY OF PREFERENCE-KNOWLEDGE OF CREDITOR. In action by a trustee in bankruptcy to recover a preference, the trustee need not prove absolute knowledge by the creditor, but only such circumstances as would lead an intelligent and prudent man to believe that the transfer would give him a preference over other creditors; the creditor comes within the inhibition of the Bankruptcy Act where the substantial facts are of such significance as fairly to warrant the inference that he knew or ought to have known of the bankrupt's financial condition. Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge. Action by Philip W. Jacobs, trustee in bankruptcy of the estate of Robert M. Robinson, against Jacob Saperstein. There was a directed verdict for defendant, and plaintiff excepts. Exceptions sustained. Jacobs & Jacobs, of Boston, for plaintiff. Blanchard & Blanchard, of Boston, for de fendant. BRALEY, J. [1-4] The jury would have been justified in finding on the evidence of the bankrupt and of the expert accountant who had examined the books, that through the months of October and November, 1913, when the defendant received the payments which the trustee seeks to recover, the bankrupt, a trader, was unable to meet his financial obligations as they matured in the ordinary course of business. And upon a comparison of assets and liabilities as shown by the record it clearly appears, that during that time as well as at the date of adjudication he was hopelessly insolvent. U. S. St. July 1, 1898, c. 541, § 1, cl. 15, 30 Stat. 544 (U. S. Comp. St. 1913, § 9585); Hewitt v. Boston Straw Board Co., 214 Mass. 260, 263, 101 N. E. 424. The plaintiff being no longer required to prove the intention of the bankrupt to confer a preference, and there being no contention that if the payments stand the defendant will not obtain a greater percentage than other creditors of the same class, or that the payments were not made within four months prior to adjudication, the only question for decision is, whether there was any evidence [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 458, 459; Dec. Dig. 303(1).] for the jury, that when the payments were 2. BANKRUPTCY 304 PREFERENCE KNOWLEDGE OF CREDITOR QUESTION OF FACT. In an action by a trustee in bankruptcy to recover a preference, the question of the creditor's knowledge is one of fact, depending on the evidence in each case. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. 8 463; Dec. Dig. 304.] PREFERENCE 3. BANKRUPTCY 303(3) NOTICE TO CREDITOR-SUFFICIENCY OF EVI DENCE. received the defendant had reasonable cause to believe that his debtor was insolvent. Hewitt v. Boston Straw Board Co., 214 Mass. 260, 264, 265, 101 N. E. 424; Rogers v. American Halibut Co., 216 Mass. 227, 229, 103 N. E. 689, and cases and statutes there cited. The trustee need not prove absolute knowledge, but only such circumstances as would lead an intelligent and prudent business man to entertain the belief that the transfer In an action by a trustee in bankruptcy to would give him a preference over other credirecover a preference, evidence held sufficient to jusify finding that the creditor had notice of tors. Rogers v. American Halibut Co., 216 material conditions sufficient to have aroused the Mass. 227, 229, 230, 103 N. E. 689; In re Egattention of an intelligent man, acquainted with gert, 102 Fed. 735, 43 C. C. A. 1. The questhe nature and character of his debtor's busi- tion ordinarily is one of fact dependent on ness, and to have put him upon inquiry when the evidence in each case, and no rule can be receiving payment of his debt. formulated by which all cases can be mathematically adjusted. Batchelder v. Home Nat. Bank, 218 Mass. 420, 422, 105 N. E. 1052; Brown v. Pelonsky, 210 Mass. 502, 96 N. E. A bankrupt's creditor receiving payments on his debt with notice of conditions sufficient to 1102; Bicknell v. Mellett, 160 Mass. 328, 329, have put him on inquiry was chargeable with 35 N. E. 1130; Forbes v. Howe, 102 Mass. notice of all the facts relating to the bank- 427, 437, 3 Am. Rep. 475; Putnam v. U. S. rupt's financial situation which such inquiry Trust Co., 223 Mass. 199, 111 N. E. 969; In [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. 303(3).] 4. BANKRUPTCY 166(4)-PREFERENCE-NOTICE TO CREDITOR-KNOWLEDGE. would have disclosed. [Ed. Note. For other cases, see Bankruptcy, re Andrews (D. C.) 135 Fed. 599; Kaufman Cent. Dig. 88 250, 251, 256; Dec. Dig. v. Tredway, 195 U. S. 271, 25 Sup. Ct. 33, 49 166(4).] L. Ed. 190. Direct evidence may be unob financial situation which such inquiry would (225 Mass. 313) MEANS v. COTTON. (Supreme Judicial Court of Massachusetts. Suffolk. Dec. 6, 1916.) tainable. But this is not essential. The 83 U. S. (16 Wall.) 277, 21 L. Ed. 280. The creditor comes within the inhibition where defendant accordingly is chargeable with nothe substantial facts are of such significance tice of all the facts relating to the bankrupt's as fairly to warrant the inference, that he knew or ought to have known of the bankrupt's financial condition. The parties had been associated as partners, but the bankrupt, having purchased the interest of the defendant, giving in payment his promissory notes maturing at different dates, continued the business on his own account until his failure. The jury would have been warranted in finding that during this period of two and one-half years the defendant visited the place of business of the bankrupt, "with whom he was very friendly," "about once in every two weeks," and whenever the bankrupt "needed assistance" he "gave it to him and continued to do it down to the spring and summer previous to the bankruptcy." It further appeared that some of the notes given at the dissolution were not paid at maturity, but were renewed from time to time, during which the bankrupt and the defendant were "swapping and exchanging checks," as the jury could find, for the financial accommodation and assistance of the bankrupt. It also was in evidence that the notes for money lent were not paid until overdue, while some of them were renewed. The bankrupt testified that in the spring of 1913 he "took a larger place of business and increased his purchases upon the same terms of credit, and when the debts matured he had to borrow to meet the indebtedness, and he borrowed from Saperstein." The defendant was called by the plaintiff and while he testified that on his visits to the bankrupt's store he observed no diminution of the stock of clothing as displayed on the shelves, the jury from the volume of sales in the three months * * preceding bankruptcy could have found, that there must have been a visible, continuous, and substantial depletion of which the defendant from his experience in this line of trade must have been aware. If with the circumstances of the personal relations of the debtor and the defendant, the practice of exchanging or “swapping" checks, the opportunities for observation of the bankrupt's stock of merchandise, and the constant hiring of money, often in small amounts, is coupled the fact which could have been found of voluntary payments aggregating a large amount within fifty days of adjudication, although the bankrupt apparently had been unable to pay in full the notes given in the partnership settlement, the jury well could say that the defendant had notice if not actual knowledge of material conditions sufficient to have aroused the attention of an intelligent man acquainted with the nature and character of his debtor's business, and to have put him upon inquiry. Rubenstein v. Lottow, 223 Mass. 227, 111 N. E. 973; Buchanan v. Smith, 1. APPEAL AND ERROR 1071(2) HARM- In an action by a landlord to recover rent accruing after the vacation of the premises by the tenant, evidence held sufficient to warrant the court in finding that the landlord's use and control of the premises was inconsistent with the relation of landlord and tenant so that the tenancy was terminated. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 933; Dec. Dig. 231(8).] 3. TRIAL 398-FINDINGS RULINGS-CON SISTENCY. The refusal of the court to rule that plaintiff is entitled to recover is not error, where there was evidence to sustain his findings of fact which defeated plaintiff's recovery. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 946, 947; Dec. Dig. 398.] 4. LANDLORD AND TENANT 55(2)—LIABIL ITY OF TENANT-OMISSION TO ACT. While a tenant at will impliedly agrees to use the premises in a tenantlike manner, and is liable for voluntary waste, he is not liable for a mere omission or failure to act or for per missive waste. [Ed. Note.-For other cases, see Landlord and 5. APPEAL AND ERROR 1071(2)-HARMLESS [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4235; Dec. Dig. 1071(2); Trial, Cent. Dig. § 940.] Appeal from Municipal Court of Boston, Appellate Division. Action by Katie A. Means against A. H. H. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cotton in the municipal court. Case reported | month of October and while the defendant still to the appellate division, after findings for plaintiff for part only of the amount claimed. Order dismissing the report, and plaintiff appeals. Affirmed. 2. On all the evidence the plaintiff is entitled to recover on the first count of the declaration. 3. On all the evidence the plaintiff is entitled to recover on the second count of the declara tion. remained in actual occupation placed such signs from which the court may find that the plainupon the premises in question, these are facts tiff by her words and conduct led the defendant reasonably and properly to understand that she so far waived any informality in the aforesaid notice as to release the defendant from his tenancy at the expiration of the rental month of October. 3. Any acts which are equivalent to the expression of an intention on the part of a tenant to abandon, and on the part of the landlord to resume possession of demised premises amounts to a surrender of the same by operation of law. 4. Certain of the acts which the plaintiff did during the month of November or the month of 1912, in the so-called upper flat portion of the December or during both of those months in making of repairs having no relation to the indemised premises now in question, including the juries alleged to have been caused by the es 11. The defendant by becoming a tenant at will of the plaintiff of the premises impliedly agreed with the plaintiff to exercise reasonable care while using the property to prevent dam-cape of water or the defendant's neglect, are age thereto, and if he failed in this respect he is liable to the plaintiff for any damages to the property caused thereby; and this liability can be enforced in this action. 12. The defendant by becoming a tenant at will of the plaintiff of the premises impliedly agreed with the plaintiff to exercise reasonable care while using the property to prevent damage thereto, unless such implied agreement was excluded by the operation of some express agreement, and if he failed in this respect he is liable to the plaintiff for any damages to the property caused thereby; and this liability can be enforced in this action. 13. If the defendant was a tenant of the plaintiff of the premises and, through his negligence occurring before he had vacated or while he was vacating the premises, the same were injured, he is liable in this action for the damages caused thereby. 14. If the defendant was a tenant of the plaintiff of the premises and vacated them after a stove in the house had been disconnected from the water pipes in such a way as to leave said pipes open, and he did not have the water fully shut off or take other reasonable means to prevent the water from flowing out of said pipes and the water did flow out of said pipes and injure the house, the defendant was negligent and is responsible in this action for the damages caused thereby. The court refused to make the first and second rulings as requested, but made them in the following modified form, namely: 1. On all the evidence the plaintiff is entitled to recover something. 2. On all the evidence the plaintiff is entitled to recover something on the first count of the declaration. such acts as will justify the court in finding that the plaintiff exercised during one or both of those months such dominion or occupation over the demised premises as are inconsistent with a right on her part to hold the defendant for use and occupation thereof during the months within which she did such acts. J. Porter Crosby, of Boston, for appellant. Frank H. Noyes, of Boston, for appellee. CARROLL, J. The plaintiff received from the defendant, who was her tenant at will at a rental of $35 per month, a written notice stating his intention to vacate the premThe notice was reises November 1, 1912. ceived October 2, 1912, and on the same day the plaintiff informed the defendant that the notice was not sufficient to terminate the tenancy and she would hold him for a proper month's notice. Following the suggestion of the defendant, she placed "To Let" signs on the premises. November 2, all of the defendant's furniture had been taken from the tenement. He paid rent to November 1, and on or about that day sent the keys of the tenement to the plaintiff. On November 4, she wrote him saying she did not accept the keys as a surrender or termination of the tenancy and would continue to hold him responsible for the rent, but would let the premises if possible, and would use the keys for that purpose. November 5, the plaintiff entered the premises and found that the kitchen stove, when removed, had been dis The court at the request of the defendant connected from the hot water pipes in such made the following rulings: 1. If the plaintiff, knowing that the written notice given to her by the defendant was intended to terminate the tenancy at a time stated therein, waived any objection to its informalities or, by her words and conduct, lead the defendant reasonably and properly to understand that she waived such informalities, she cannot now object that the notice was insufficient. 2. If the plaintiff, having on or about October 2, 1912, received from the defendant a written notice of his intention to terminate the tenancy as of a date specified therein, being on or about November 1, 1912, thereupon at once went to the defendant and told him that his notice was not sufficient and that she should "hold him to a full month's notice," and thereupon asked or received from the defendant permission to place "To Let" signs on the property in question, and immediately thereafter during the a way that the ceilings and walls were soaked with water. She repaired the damaged premises and also made repairs on other parts of the house, not injured by water. She rented the second floor apartment in December, 1912, the tenant occupying it December 26, the tenancy beginning January 1. other apartment was rented beginning February 1, 1913. The The defendant offered evidence tending to show that the plaintiff on October 2, asked permission to place the signs in the house, and his consent to this; that at this time she did not say whether the notice was sufficient or insufficient, and did not say she would require a full month's notice. He also testi |