Page images
[ocr errors]

until altered, amended or repealed, continue insistent with the varying provisions as to the force in the city of Medford."

date for the election or appointment of the Clearly this section establishes no term city clerk, to be found in different city charfor any office except that it incorporates by ters. While in many, perhaps in most, cities, necessary implication the term of office of the municipal year begins in January and city clerk as fixed by St. 1901, c. 332, now city clerks are to be elected or appointed in R. L. c. 26, § 15, for the reason that that that month, that is by no means universal. statute was one of the general laws which For example, in Leominster he is to be se had "been duly accepted by said

lected in February (St. 1915, c. 338, 88 10 and city.”

11), and in Boston in May (St. 1909, c. 456, (2-4] The conclusion seems to us irresisti- 88 9 and 13). When a time is fixed by statble that, throughout the period under review, ute for the election or appointment of an R. L. c. 26, § 15, governs the term of office officer, it is to be presumed that the election of city clerk in Medford. The effect of section 53 of the charter was simply to provide law, although such provision may be direc

or appointment will be made according to that when it went into effect, namely, on the tory rather than mandatory, and the statute first Monday of January, 1904, all the offices as a whole is to be construed on that presumpshould become vacant and that the newly tion. The year in which the election or aporganized city government should have the pointment of a city clerk must be held or power to elect new oflicers, including a city made is fixed in definite and specific terms clerk. But, so far as the city clerk is con- by R. L. C. 26, § 15, for all cities to which it cerned, no provision is made for any change is applicable. The month of the year only in his term of office. Such a sweep out of office wrought by the express terms of the is left flexible. If it were necessary to decity charter is an instance of the clerk be- cide the point, it might be that the concluding "sooner removed by due process of law” ing words of the first sentence of section 15 within the meaning of those words in R. L. of R. L. C. 26, viz., “For a term of three c. 26, § 15. But the effect of the new city years from the day of his election or appointcharter was not to abolish the office of city ment,” would be held to mean from the clerk or to change its term. It merely gave day when by law he is required to be elected the new city government opportunity to elect or appointed. But that point is not now in

volved. a new city clerk who, according to the terms of section 10 of the charter (St. 1903, c. 345),

[6, 7] This interpretation of the statutes should "hold office for the term of his elec- was not followed in the city of Medford. tion.” Looking to R. L. c. 26, § 15, where One Joyce, holding the office of city clerk in alone one can look to determine “the term 1902, was elected in 1904 in form for a term of his election,” it is found that it must be of three years and by successive elections until the beginning of the next three year until he vacated the office in September, term as ascertained by the computation of 1914. We do not intimate that there is reaperiods of three years from 1902. This fol- son to question the validity of the service or lows inevitably from the final sentence of Joyce as city clerk. In December, 1914, one said section 15, namely:

Winslow was duly elected city clerk "for the “A person who is appointed to fill a vacancy expiration of the unexpired term." The in the office of city clerk shall hold the office term then existing under R. L. c. 26, $ 15, until the end of the unexpired term of the person who last held the office."

was the three year period from January, The end of the unexpired term of the last 1914, to January, 1917. When the form of person who held the office of city clerk when election was held by the aldermen of Medthe new incumbent was elected under the ford in January, 1916, whereby the respondnew city charter in January, 1904, was Jan- ent claims to hold the office of city clerk, uary, 1905, that is, three years from Jan- there was no vacancy. Winslow was still uary, 1902.

holding the office by virtue of his election [5] It is not necessary to consider what of December, 1914, for the remainder of a may be the effect of that part of R. L. c. 26, term, which would not expire until January $15, which requires the election of city clerk 1917. It follows that the respondent is not to be held “in the year nineteen hundred and entitled to the office. Since he is holding de two and in every third year thereafter," if it facto but not de jure an office to which an. should ever come in conflict with the conclud- other is entitled, this is the appropriate proing words of the same sentence, "for a term cess to oust him from the office to which he of three years from the day of his election or has no legal title. Atty. Gen. v. Simonds, 111 appointment." There is no conflict in the Mass. 256; Atty. Gen. V. Allen, 128 Mass.

at bar. The present phrase of that sec-308. tion is designed to harmonize and be con Judgment of ouster to issue.



(225 Mass. 410)

board and of the commissioner, deputy commisDONOVAN V. DONOVAN et al.

sioners and necessary clerical assistants shall

take effect on the first day of March, nineteen (Supreme Judicial Court of Massachusetts. hundred and thirteen." Suffolk. Jan. 3, 1917.)

On July 30, 1913, the original members OFFICERS Cw59 – TERMS — STATUTES — Con of the board were appointed and confirmed STRUCTION.

Under St. 1912, c. 726, § 1, creating the in conformity with the provisions of section state board of labor and industries, making the 1. The appointee for the three years term terms of office five years except for the first was one Channing Smith, whose commission board, whose terms by rotation shall be one, provided that he was "to hold said trust for two, three, four, and five years, respectively, and providing that the act shall take effect as the term of three years ending on the first to term on March 1, 1913, where the original day of March in the year nineteen hundred board was appointed and subsequently removed and sixteen and until his successor shall in a body and a new board appointed, the terms of the new board were the same as 'those have been appointed and qualified unless of the original board, so that, when the three sooner removed therefrom." The commisyear man resigned, and a successor was ap- sions of the other members were in the same pointed, he could hold only until three years form, with the appropriate change in the from March 1, 1913, or until a was appointed, though his commission recited date of the expiration of their respective that the term was until 1919.

terms. (Ed. Note.-For other cases, see Officers, Cent. On March 11, 1914, the Governor, with the Dig. $ 88; Dec. Dig. 59.]

advice and consent of the council, removed Exceptions from Supreme Judicial Court, all the members of the board from their Suffolk County.

offices. On April 8, 1914, he nominated a Mandamus by James A. Donovan against new board, specifying in each instance the Alfred W. Donovan and others. Judgment former member of the board whom each new dismissing the petition, and plaintiff ex- appointee was to succeed. Selskar M. Gunn cepts. Exceptions overruled.

was nominated at this time in place of ChanFredk. W. Mansfield and Jas. A. Donovan, ning Smith. These nominations were duly both of Boston, for plaintiff. Henry C. Att confirmed by the executive council, and comwill, Atty. Gen., and W. H. Hitchcock, Asst

missions in the form already described, were Atty. Gen., for respondents.

issued to the several appointees respectively

for the unexpired terms of the removed CROSBY, J. This is a petition for manda- members ending on the first day of March mus brought against the respondents as

in the appropriate years. members of the state board of labor and in

On or before July 6, 1915, Selskar M. Gunn dustries, seeking to compel them to recognize resigned as a member of the board and the the petitioner as a member of the board petitioner was nominated in his place. He instead of one Samuel Ross, who, it is al was confirmed by the council August 11, leged by the petitioner, is holding his position 1915, and the same day received a commis. unlawfully. The case was heard by a single sion and qualified as a member of the board. justice of this court, who ruled as matter His commission recited that he was “to hold of law that the petitioner was not entitled said trust for the term of four years, endto a writ of mandamus and dismissed the ing with the first day of March, nineteen petition. The case is before us upon the hundred and nineteen, and until his succesplaintiff's exception to the foregoing ruling. sor shall have been appointed and qualified The facts as agreed to by the parties are unless sooner renoved therefrom.” On April recited in the bill of exceptions.

26, 1916, the Governor nominated the re The state board of labor and industries spondent Samuel Ross to be a member of the was established by St. 1912, c. 726. The pro- board as the successor of the petitioner. visions of the statute, so far as material to This nomination was confirmed by the counthe questions here raised, are as follows:

cil on May 10, 1916, and Ross duly qualified “Section 1. There is hereby established a

as a member of the board. The petitioner state board of labor and industries to be com- contends that, by virtue of his appointment posed of five persons who shall be appointed by and the terms of his commission, until rethe Governor, with the advice and consent of moved he is entitled to hold the office for the council. The terms of office of the bers of the board shall be five years, except the term of four years ending March 1, 1919. that when first appointed one of the members The question presented, therefore, is from shall be appointed for four years, one for three what day did the original term of Channing years, one for two years, and one for one year, the member at that time appointed for five Smith begin to run? Did his term begin years to be chairman. Thereafter a member July 30, 1913, when he was appointed one shall be appointed each year, for a term of five of the first members of the board, or did it years. vice and consent of the council, shall have pow. begin March 1, 1913, as specified in his comer to fill by appointment for the unexpired term mission? The provision of the statute that any vacancy that may occur in the board.” the term of one member of the board should

"Section 16. This act shall take effect on the expire each year shows that the board should first day of June, nineteen hundred and thirteen, except that so much of the act as provides be a continuing one. The statute was approv. for 'the appointment of the members of the ed June 10, 1912, and by its express terms


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

went into effect June 1, 1913. But it was of the estate of Rufus Davis, deceased, filed also expressly provided that as to the ap- a suggestion of the death of defendant, and pointment of members of the commission, was granted leave to defend the action on beit should take effect on March 1, 1913. When half of defendant's estate. From a decree sections 1 and 16 are considered together, we for defendant, confirming a master's report cannot escape the conclusion that it was the and dismissing the bill, plaintiff appeals. intention of the Legislature that the terms Affirmed. of the members of the board originally ap

Burton W. Potter, of Worcester, for appelpointed, should begin on the first day of lant. Thayer, Smith & Gaskill, of Worcester, March, 1913, and that the term of one mem for appellee ber of the board should expire on the first day of March in each year thereafter. So construed, the term of Channing Smith, be

DE COURCY, J. The plaintif owned a

At different times be san on March 1, 1913; the appointment of portable sawmill. bis successor Gunn, was to fill the vacancy tween 1892 and 1899 he sawed and prepared caused by the removal of Smith, and was for for market the wood growing on certain timthe unexpired term. The appointment of ber lots, which were bought and paid for the petitioner after the resignation of Gunn, by the defendant's intestate. The plaintiff must also be construed as an appointment has been paid the price agreed upon for sawto fill the vacancy for the remainder of ing and preparing the timber. He now conSmith's original term which expired on the tends that it was orally agreed between them first day of March, 1916, or whenever there that upon the purchase of each lot he was to after his successor should be appointed and have a certain share of the net profits; and qualified. Atty. Gen. v. Loomis, 114 N. E. 676. this bill, brought in 1914, prays for an acWe are of opinion that the petitioner's ap- counting of the lumber marketed, and for an pointment was valid as an appointment for interest in certain of the wood lots now the unexpired term, namely, until March 1, standing in the name of the defendant's in1916, and until his successor was appointed

testate. and qualified; but it was invalid so far as

The facts as set out in the master's report it purported to be an appointment for a

are meager. The reason given for this is longer period than the original term created the unsatisfactory evidence presented by the by the appointment of Smith. Accordingly, plaintiff, who kept no written account of the the term of the petitioner ended on March 1, lumber sawed by him. There is no espress 1916; after that date he could hold the of finding as to whether the relation existing fice only until his successor was duly ap- between the parties was one of partnership. pointed and qualified. And as the respond- This, however, is not vital in view of the ent Ross was appointed as the petitioner's findings that “at the time of the bringing of successor on April 26, 1916, and was con

the plaintiff's bill, there was nothing due firmed by the council on May 10 following, from the defendant to the plaintiff” and “the the petitioner's right to hold the office ended plaintiff had no interest in the several par. on the last named date,

cels of said wood land." These findings are It follows that the entry must be:

supported by subsidiary ones, such as the set. Exceptions overruled.

tlement and note of 1895, the receipt in full

given by the plaintiff in 1901, and the failure (225 Mass. 385)

of the plaintiff to make any claim for years, THOMPSON V. DAVIS.

and until the incapacity of the defendant's (Supreme Judicial Court of Massachusetts.

intestate. Worcester. Jan. 3, 1917.)

[1, 2] The exceptions to the master's re1. EQUITY 410(7)— MASTER'S REPORT-Ex- port must be overruled. They consist of obCEPTIONS-EVIDENCE.

jections to his findings of fact, and to his Where the evidence upon which a master failure to find certain other alleged facts, acted is not incorporated in his report, excep-together with requests for the report of certions to his findings of fact, and his failure to tain portions of the evidence. Under the rule • find alleged facts, will be overruled.

[Ed. Note. For other cases, see Equity, Cent, issued to him the master rightly refused to Dig. $8 916-919; Dec. Dig. 410(7).]

report the evidence; and in the absence of 2. EQUITY ww412_DISCRETION OF COURT- the same we cannot revise his findings of

MOTION TO RECOMMIT-MASTER'S REPORT-fact. The motion to recommit the report, MOTION TO DISCHARGE-REFERENCE TO Mas- and that to discharge the reference to the

Motions to recommit a master's report, and master, were addressed to the discretion of to discharge the reference to the master, are the judge, and we cannot say that it was addressed to the discretion of the trial judge. wrongly exercised. Cook v. Scheffreen, 215

[Ed. Note.-For other cases, see Equity, Cent. Mass. 444, 102 N. E. 715, Nesson v. Gilson, Dig. $$ 924-926; Dec. Dig. Om412.]

224 Mass. 212, 112 N. E. 870. Appeal from Superior Court, Worchester The decree confirming the master's report County; Christopher T. Callahan, Judge. and dismissing the bill must be affirmed.

Suit by H. Clark Thompson against Ru. And it is fus Davis. Wayland C. Davis, administrator) So ordered.




[ocr errors]

(225 Mass. 435)

Clifford, Incorporated, with three dummy inDONOVAN V. CLIFFORD.

corporators, intending thereby to cater to her Supreme Judicial Court of Massachusetts. customers; a' petition in involuntary bankSuffolk. Jan. 4, 1917.)

ruptcy was filed against her November 13, 1. SALES w 44-REMEDIES OF SELLER-RE- 1914, and her schedules in the bankruptcy

court showed a total indebtedness of $20,Where a purchaser buys goods with the pre- 526.86, and assets totaling $4,200, consisting conceived, definite, conscious intent not to pay of fixtures $500, book accounts $700, and for them, this constitutes a fraud upon the sell

The schedules contained a er, rendering the sale voidable at his election, stock $3,000. and entitles him to bring replevin for the goods. statement of "$500 in merchandise paid to"

[Ed. Note. For other cases, see Sales, Cent. her attorney, which in fact was not paid. Dig. $ 93; Dec. Dig. 44.]

Until the plaintiff received a letter from her 2. FRAUD m50-ACTIONS-DECEIT-BURDEN attorney October 9, 1914, he did not learn OF PROOF.

in any way that the defendant was unable to Where a declaration for deceit was based upon an allegation that defendant, at the time pay her debts. of the purchase of the goods, falsely and fraud [1] A jury would be warranted in inferring, ulently represented she intended to pay for from the conduct of the defendant as disclosthe goods within the term of the credit, the bursed by the evidence, that she bought these den was on the plaintiff to establish this by words or acts of defendant falsely representing goods with a preconceived, definite, conscious a fact, inducing him to make the sale.

intent not to pay for them. Under our law [Ed. Note.-For other cases, see Fraud, Cent. this would constitute a fraud upon the plainDig. 88 46, 47; Dec. Dig. Om50.)

tiff, would render the sales voidable at his 3. FRAUD 50-ACTION FOR DECEIT--BUR- election, and entitle him to recover the goods DEN OF PROOF.

in an action of replevin if they remained In an action in deceit for purchasing goods hers. on false and fraudulent representations, it is not

Watson v. Silsby, 166 Mass. 57, 43 enough that the seller proves a mere promise to N. E, 1117; Phinney v. Friedman, 224 Mass. pay on the part of the buyer; a representation 531, 113 N. E. 285. of a present intention to pay must be shown.

[2, 3] The plaintiff, however, has not at[Ed. Note. For other cases, see Fraud, Cent. tempted to avoid the sales. This action is Dig. 88 46, 47; Dec. Dig. Om50.)

in tort for deceit. The declaration is based 4. FRAUD 58(3)-ACTION IN DECEIT-EVI.

on alleged false and fraudulent representaIn an action in deceit for the sale of goods tions by the defendant, made at the time of by false and fraudulent representations, evi- the sales of these goods, that "she dence held to warrant a finding that defendant then and there did intend to pay the plaintiff made the purchase without reasonable expecta- therefor within the term of said credit.” It tion or intention of making payment.

(Ed. Note.-- For other cases, see Fraud, Cent. was incumbent on the plaintiff to establish Dig. 8 58; Dec. Dig. Om 58(3).]

this by words or acts of the defendant falsely Report from Superior Court, Suffolk Coun- to make the sale. A mere promise to pay

representing to him a fact which induced him ty; John H. Hardy, Judge. Action by James J. Donovan against Mary ent intention to pay must be shown.

was not enough. A representation of a pres

See G. Clifford. On report from the superior Com. v. Althause, 207 Mass. 32, 93 N. E. 202, court. Judgment for plaintiff.

31 L. R. A. (N. S.) 999. C. F. Smith, of Boston, for plaintiff.

[4] The evidence on this issue was meager.

But in addition to the representations cre DE COURCY, J. The plaintiff, a dealer in ated or conveyed by her acts, fraudulently millinery goods, made to the defendant, a producing a false impression upon the mind milliner, the 19 sales referred to in the decla- of the plaintiff, there were statements made ration; beginning August 24, 1914, ending by the defendant when some of the sales were October 6, 1914, and egating $207.82. made which a jury properly could say impliThere was evidence from which the jury edly represented that she had a present incould find the following facts: When the tention to pay for the goods, such as: defendant moved to Boylston street about "I am perfectly reliable. You will get a check September, 1913, she was $7,000 in debt, and for it the first of the month.” “Mr. Donovan, her business was greatly impaired during the you will get your money very, shortly. If year following; from August 1, 1914, to Ocowe you $200.00, no matter what the amount

is, you will be paid." tober 14, 1914, her indebtedness steadily increased and her stock diminished; about the The jury also could find that these repre1st of September she had an attorney send sentations were false. Plainly the evidence a general form letter to her creditors offering referred to would warrant a finding that the to pay them with notes, but no cash; the defendant could have had no reasonable exmiddle of September her books showed an pectation of ever paying for these goods, and, indebtedness of about $15,000, and she made as an inference therefrom, that she bought an offer to her creditors of 25 per cent. in with an intention not to pay for them. On her unsecured notes; while this effort to the other issues in the case, there was ample compromise with her creditors was in prog- evidence. ress she formed a corporation, known as By the terms of the report if there was any

For other cases spp same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MASS.DEC.111-115 N.E.-49

evidence upon which the plaintiff was enti- , consisted of three electric lights on a beam tled to go to the jury, judgment is to be en- which ran along the middle of the hold. tered in his favor for a stipulated sum. In Electricity for these lights was generated in our opinion there was evidence entitling him the “Prince George” and the electric light to go to the jury on some of the counts system was newly installed. For the ten in his declaration. Accordingly the entry minutes ensuing after the lights went out must be:

they “kept going up, they would be bright Judgment for the plaintiff in the sum of one minute and the next time they would be $207.82.

down, pretty near out.” A witness testified

that on two previous occasions, “the week (225 Mass. 516)

before the accident and the Thursday before CUNNINGHAM v. BOSTON & Y. S. S. CO. that,” “while he was working the lights (Supreme Judicial Court of Massachusetts.

would just go out for a little while and then Suffolk. Jan. 5, 1917.)

come up again exactly the same way as they

did the day of the accident." Another witMASTER AND SERVANT 278(3) INJURIES TO_SERVANT-SUFFICIENCY OF EVIDENCE.

ness testified that somewhere around three Evidence, in a longshoreman's action for or four days before the accident, on two ocinjuries to his finger due to the flickering of casions, he had noticed that sometimes the the lights, while he was holding a timber and lights would grow dim—"go down, in fact, so pushing a truck, held to warrant a finding that the flickering of the lights was due to a defect low that you could see the wire in the bulb, in the wiring system or dynamo, which bad ex see the red wire and then they would come isted for at least a week, and that defendant up again and brighten.” might have discovered and remedied the defect in the exercise of reasonable care, and hence to the question, "What would be an adequate

An electrical expert witness in response to authorize submission of the case to the jury.

[Ed. Note.-For other cases, see Master and cause for the light going out and continuing Servant, Cent. Dig. $ 958; Dec. Dig. Om to flicker?” answered, "It would be some de278(3).]

fect in the wiring system, or some improper Report from Superior Court, Suffolk Coun operation of it; it would be an overloaded ty; Frederic H. Chase, Judge.

condition, or a condition of the wiring where Action by Peter C. Cunningham against it had become loose or broken away.” This the Boston & Yarmouth Steamship Company. witness in cross-examination in response to Verdict for plaintiff, and case reported to the the question, “You said it was possible--if the full court by the presiding judge. Ordered lights flickered; that the defect was possibly that judgment be entered on the verdict. due to several things?" answered, “No, I said

B. A. Brickley and McLellan, Carney & if the lights flickered it was due to a defect Brickley, all of Boston, for plaintiff. Bar. in the wiring system;" and "Inasmuch as ton & Harding, of Boston, for defendant.

there were probably four bulbs involved, it

was caused by something further back” in PIERCE, J. March 16, 1914, the plaintiff, the system than the bulbs. And in response while in the employ of the defendant, re

to the question, "What do you understand by ceived personal injuries for which he seeks 'flickering'?" answered, “Increasing and deto recover damages. The defendant was not creasing in brilliancy,” “On and off," "It is a subscriber under the workmen's compensa

the flickering of light. I do not know any tion act. The only issue is the defendant's better way to describe it than flickering.” negligence. The jury found for the plaintiff

An electrician called by the defendant, in and thereupon the presiding judge, "being of response to the question, “Would you say opinion the right of the plaintiff to recover that the electric lights in the hold of a ship should be determined by the Supreme Judi- could have flickered for appreciable intercial Court" reported the case to the full vals, in one instance for at least ten minutes, court.

without there being some difficulty or defect The facts in their aspects most favorable either in the apparatus which supplied the to the plaintiff's contention, could be found electricity, or in the insulation?" answered, to be as follows: The accident happened at “Well, if there was any flickering, there 11:50 A. M. in No. 2 bold, on the steamer must have been some trouble in the insula"Prince George.” The plaintiff and another i tion somewhere." He also stated that the longshoreman were engaged in taking out condition of flickering would mean some delumber sixteen to eighteen feet long. While fect in the dynamo. the plaintiff' was holding the timber, laid The evidence was plenary to warrant a lengthwise on a truck, at the back, with both finding that the lights flickered and did not hands and was pushing with his breast, the go "dead"; that the flickering was due to a lights went out; the wheels struck a ring defect in the wiring system or in the dynabolt in the floor, the end of the timber "slew mo; that the defect had existed for at least around," and crushed the little finger of the a week, and that the defendant might have plaintiff between the lumber and one of the discovered and remedied the defect in the stanchions.

exercise of reasonable care. The lighting arrangement of No. 2 hold We are of opinion that the evidence was

« PreviousContinue »