until altered, amended or repealed, continue in sistent with the varying provisions as to the force in the city of Medford." Clearly this section establishes no term for any office except that it incorporates by necessary implication the term of office of city clerk as fixed by St. 1901, c. 332, now R. L. c. 26, § 15, for the reason that that statute was one of the general laws which had "been duly accepted by said city." * [2-4] The conclusion seems to us irresistible that, throughout the period under review, R. L. c. 26, § 15, governs the term of office of city clerk in Medford. The effect of section 53 of the charter was simply to provide that when it went into effect, namely, on the first Monday of January, 1904, all the offices should become vacant and that the newly organized city government should have the power to elect new officers, including a city clerk. But, so far as the city clerk is concerned, no provision is made for any change in his term of office. Such a sweep out of office wrought by the express terms of the city charter is an instance of the clerk being "sooner removed by due process of law" within the meaning of those words in R. L. c. 26, § 15. But the effect of the new city charter was not to abolish the office of city clerk or to change its term. It merely gave the new city government opportunity to elect a new city clerk who, according to the terms of section 10 of the charter (St. 1903, c. 345), should "hold office for the term of his election." Looking to R. L. c. 26, § 15, where alone one can look to determine "the term of his election," it is found that it must be until the beginning of the next three year term as ascertained by the computation of periods of three years from 1902. This follows inevitably from the final sentence of said section 15, namely: "A person who is appointed to fill a vacancy in the office of city clerk shall hold the office until the end of the unexpired term of the person who last held the office." The end of the unexpired term of the last person who held the office of city clerk when the new incumbent was elected under the new city charter in January, 1904, was January, 1905, that is, three years from January, 1902. [5] It is not necessary to consider what may be the effect of that part of R. L. c. 26, 15, which requires the election of city clerk to be held "in the year nineteen hundred and two and in every third year thereafter," if it should ever come in conflict with the concluding words of the same sentence, "for a term of three years from the day of his election or appointment." There is no conflict in the case at bar. The present phrase of that section is designed to harmonize and be con date for the election or appointment of the city clerk, to be found in different city charters. While in many, perhaps in most, cities, the municipal year begins in January and city clerks are to be elected or appointed in that month, that is by no means universal. For example, in Leominster he is to be selected in February (St. 1915, c. 338, §§ 10 and 11), and in Boston in May (St. 1909, c. 486, §§ 9 and 13). When a time is fixed by statute for the election or appointment of an officer, it is to be presumed that the election or appointment will be made according to law, although such provision may be directory rather than mandatory, and the statute as a whole is to be construed on that presumption. The year in which the election or appointment of a city clerk must be held or made is fixed in definite and specific terms by R. L. c. 26, § 15, for all cities to which it is applicable. The month of the year only is left flexible. If it were necessary to de cide the point, it might be that the concluding words of the first sentence of section 15 of R. L. c. 26, viz., "For a term of three years from the day of his election or appointment," would be held to mean from the day when by law he is required to be elected or appointed. But that point is not now in volved. [6, 7] This interpretation of the statutes was not followed in the city of Medford. One Joyce, holding the office of city clerk in 1902, was elected in 1904 in form for a term of three years and by successive elections until he vacated the office in September, 1914. We do not intimate that there is reason to question the validity of the service or Joyce as city clerk. In December, 1914, one Winslow was duly elected city clerk "for the expiration of the unexpired term." The term then existing under R. L. c. 26, § 15, was the three year period from January, 1914, to January, 1917. When the form of election was held by the aldermen of Medford in January, 1916, whereby the respondent claims to hold the office of city clerk, Winslow was still there was no vacancy. holding the office by virtue of his election of December, 1914, for the remainder of a term, which would not expire until January 1917. It follows that the respondent is not entitled to the office. Since he is holding de facto but not de jure an office to which another is entitled, this is the appropriate process to oust him from the office to which he has no legal title. Atty. Gen. v. Simonds, 111 Mass. 256; Atty. Gen. v. Allen, 128 Mass. 308. Judgment of ouster to issue. (225 Mass. 410) DONOVAN v. DONOVAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 3, 1917.) board and of the commissioner, deputy commissioners and necessary clerical assistants shall take effect on the first day of March, nineteen hundred and thirteen." On July 30, 1913, the original members OFFICERS 59-TERMS - STATUTES-CON- of the board were appointed and confirmed STRUCTION. Under St. 1912, c. 726, § 1, creating the state board of labor and industries, making the terms of office five years except for the first board, whose terms by rotation shall be one, two, three, four, and five years, respectively, and providing that the act shall take effect as to term on March 1, 1913, where the original board was appointed and subsequently removed in a body and a new board appointed, the terms of the new board were the same as those of the original board, so that, when the three year man resigned, and a successor was appointed, he could hold only until three years from March 1, 1913, or until a successor was appointed, though his commission recited that the term was until 1919. [Ed. Note. For other cases, see Officers, Cent. Dig. 88; Dec. Dig. 59.] in conformity with the provisions of section 1. The appointee for the three years term was one Channing Smith, whose commission provided that he was "to hold said trust for the term of three years ending on the first day of March in the year nineteen hundred and sixteen and until his successor shall have been appointed and qualified unless sooner removed therefrom." The commissions of the other members were in the same form, with the appropriate change in the date of the expiration of their respective terms. On March 11, 1914, the Governor, with the advice and consent of the council, removed Exceptions from Supreme Judicial Court, all the members of the board from their Suffolk County. Mandamus by James A. Donovan against Alfred W. Donovan and others. Judgment dismissing the petition, and plaintiff excepts. Exceptions overruled. Fredk. W. Mansfield and Jas. A. Donovan, both of Boston, for plaintiff. Henry C. Attwill, Atty. Gen., and W. H. Hitchcock, Asst. Atty. Gen., for respondents. CROSBY, J. This is a petition for mandamus brought against the respondents as members of the state board of labor and in dustries, seeking to compel them to recognize the petitioner as a member of the board instead of one Samuel Ross, who, it is alleged by the petitioner, is holding his position unlawfully. The case was heard by a single justice of this court, who ruled as matter of law that the petitioner was not entitled to a writ of mandamus and dismissed the petition. The case is before us upon the plaintiff's exception to the foregoing ruling. The facts as agreed to by the parties are recited in the bill of exceptions. The state board of labor and industries was established by St. 1912, c. 726. The provisions of the statute, so far as material to the questions here raised, are as follows: "Section 1. There is hereby established a state board of labor and industries to be composed of five persons who shall be appointed by the Governor, with the advice and consent of the council. The terms of office of the members of the board shall be five years, except that when first appointed one of the members shall be appointed for four years, one for three years, one for two years, and one for one year, the member at that time appointed for five years to be chairman. Thereafter a member shall be appointed each year, for a term of five years. The Governor, with the advice and consent of the council, shall have power to fill by appointment for the unexpired term any vacancy that may occur in the board." "Section 16. This act shall take effect on the first day of June, nineteen hundred and thirteen, except that so much of the act as provides for the appointment of the members of the offices. On April 8, 1914, he nominated a On or before July 6, 1915, Selskar M. Gunn resigned as a member of the board and the petitioner was nominated in his place. He was confirmed by the council August 11, 1915, and the same day received a commis sion and qualified as a member of the board. His commission recited that he was "to hold said trust for the term of four years, ending with the first day of March, nineteen hundred and nineteen, and until his successor shall have been appointed and qualified unless sooner removed therefrom." On April 26, 1916, the Governor nominated the respondent Samuel Ross to be a member of the board as the successor of the petitioner. This nomination was confirmed by the council on May 10, 1916, and Ross duly qualified as a member of the board. The petitioner contends that, by virtue of his appointment and the terms of his commission, until removed he is entitled to hold the office for the term of four years ending March 1, 1919. The question presented, therefore, is from what day did the original term of Channing Did his term begin Smith begin to run? July 30, 1913, when he was appointed one of the first members of the board, or did it begin March 1, 1913, as specified in his commission? The provision of the statute that the term of one member of the board should expire each year shows that the board should be a continuing one. The statute was approved 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 also expressly provided that as to the appointment of members of the commission, it should take effect on March 1, 1913. When sections 1 and 16 are considered together, we cannot escape the conclusion that it was the intention of the Legislature that the terms of the members of the board originally appointed, should begin on the first day of March, 1913, and that the term of one member of the board should expire on the first day of March in each year thereafter. So construed, the term of Channing Smith, began on March 1, 1913; the appointment of his successor Gunn, was to fill the vacancy caused by the removal of Smith, and was for the unexpired term. The appointment of the petitioner after the resignation of Gunn, must also be construed as an appointment to fill the vacancy for the remainder of Smith's original term which expired on the first day of March, 1916, or whenever there after his successor should be appointed and qualified. Atty. Gen. v. Loomis, 114 N. E. 676. We are of opinion that the petitioner's appointment was valid as an appointment for the unexpired term, namely, until March 1, 1916, and until his successor was appointed and qualified; but it was invalid so far as it purported to be an appointment for a longer period than the original term created by the appointment of Smith. Accordingly, the term of the petitioner ended on March 1, 1916; after that date he could hold the office only until his successor was duly appointed and qualified. And as the respondent Ross was appointed as the petitioner's successor on April 26, 1916, and was confirmed by the council on May 10 following, the petitioner's right to hold the office ended on the last named date. It follows that the entry must be: Motions to recommit a master's report, and to discharge the reference to the master, are addressed to the discretion of the trial judge. [Ed. Note.-For other cases, see Equity, Cent. Dig. 88 924-926; Dec. Dig. 412.] Appeal from Superior Court, Worchester County: Christopher T. Callahan, Judge. of the estate of Rufus Davis, deceased, filed a suggestion of the death of defendant, and was granted leave to defend the action on behalf of defendant's estate. From a decree for defendant, confirming a master's report and dismissing the bill, plaintiff appeals. Affirmed. Burton W. Potter, of Worcester, for appellant. Thayer, Smith & Gaskill, of Worcester, for appellee DE COURCY, J. The plaintiff owned a At different times beportable sawmill. tween 1892 and 1899 he sawed and prepared for market the wood growing on certain timber lots, which were bought and paid for by the defendant's intestate. The plaintiff has been paid the price agreed upon for sawing and preparing the timber. He now contends that it was orally agreed between them that upon the purchase of each lot he was to have a certain share of the net profits; and this bill, brought in 1914, prays for an accounting of the lumber marketed, and for an interest in certain of the wood lots now standing in the name of the defendant's in testate. The facts as set out in the master's report are meager. The reason given for this is the unsatisfactory evidence presented by the plaintiff, who kept no written account of the lumber sawed by him. There is no express finding as to whether the relation existing between the parties was one of partnership. This, however, is not vital in view of the findings that "at the time of the bringing of the plaintiff's bill, there was nothing due from the defendant to the plaintiff” and “the plaintiff had no interest in the several parcels of said wood land." These findings are supported by subsidiary ones, such as the settlement and note of 1895, the receipt in full given by the plaintiff in 1901, and the failure of the plaintiff to make any claim for years, and until the incapacity of the defendant's intestate. [1, 2] The exceptions to the master's report must be overruled. They consist of objections to his findings of fact, and to his failure to find certain other alleged facts, together with requests for the report of certain portions of the evidence. Under the rule • issued to him the master rightly refused to report the evidence; and in the absence of the same we cannot revise his findings of fact. The motion to recommit the report, and that to discharge the reference to the master, were addressed to the discretion of the judge, and we cannot say that it was wrongly exercised. Cook v. Scheffreen, 215 Mass. 444, 102 N. E. 715, Nesson v. Gilson, 224 Mass. 212, 112 N. E. 870. The decree confirming the master's report and dismissing the bill must be affirmed. And it is Suit by H. Clark Thompson against Rufus Davis. Wayland C. Davis, administrator So ordered. (225 Mass. 435) DONOVAN v. CLIFFORD. Clifford, Incorporated, with three dummy incorporators, intending thereby to cater to her (Supreme Judicial Court of Massachusetts. customers; a petition in involuntary bank Suffolk. Jan. 4, 1917.) ruptcy was filed against her November 13, 1. SALES 44 REMEDIES OF SELLER-RE-1914, and her schedules in the bankruptcy SCISSION. Where a purchaser buys goods with the preconceived, definite, conscious intent not to pay for them, this constitutes a fraud upon the seller, rendering the sale voidable at his election, and entitles him to bring replevin for the goods. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 93; Dec. Dig. 44.] 2. FRAUD a court showed a total indebtedness of $20,526.86, and assets totaling $4,200, consisting of fixtures $500, book accounts $700, and The schedules contained stock $3,000. statement of "$500 in merchandise paid to" her attorney, which in fact was not paid. Until the plaintiff received a letter from her 50-ACTIONS-DECEIT-BURDEN attorney October 9, 1914, he did not learn in any way that the defendant was unable to pay her debts. OF PROOF. Where a declaration for deceit was based upon an allegation that defendant, at the time of the purchase of the goods, falsely and fraud- [1] A jury would be warranted in inferring, ulently represented that she intended to pay for from the conduct of the defendant as disclosthe goods within the term of the credit, the bur-ed by the evidence, that she bought these den was on the plaintiff to establish this by words or acts of defendant falsely representing a fact, inducing him to make the sale. [Ed. Note.-For other cases, see Fraud, Cent. Dig. 88 46, 47; Dec. Dig. 50.] 3. FRAUD 50-ACTION FOR DECEIT-BURDEN OF PROOF. In an action in deceit for purchasing goods on false and fraudulent representations, it is not enough that the seller proves a mere promise to pay on the part of the buyer; a representation of a present intention to pay must be shown. [Ed. Note. For other cases, see Fraud, Cent. Dig. 88 46, 47; Dec. Dig. 50.] 4. FRAUD 58(3)—ACTION IN DECEIT-EVIDENCE. In an action in deceit for the sale of goods by false and fraudulent representations, evidence held to warrant a finding that defendant made the purchase without reasonable expectation or intention of making payment. goods with a preconceived, definite, conscious intent not to pay for them. Under our law this would constitute a fraud upon the plaintiff, would render the sales voidable at his election, and entitle him to recover the goods in an action of replevin if they remained hers. Watson v. Silsby, 166 Mass. 57, 43 N. E. 1117; Phinney v. Friedman, 224 Mass. 531, 113 N. E. 285. [2, 3] The plaintiff, however, has not attempted to avoid the sales. This action is in tort for deceit. The declaration is based on alleged false and fraudulent representations by the defendant, made at the time of the sales of these goods, that "she then and there did intend to pay the plaintiff therefor within the term of said credit." It was incumbent on the plaintiff to establish this by words or acts of the defendant falsely Coun-representing to him a fact which induced him to make the sale. A mere promise to pay was not enough. A representation of a present intention to pay must be shown. See Com. v. Althause, 207 Mass. 32, 93 N. E. 202, 31 L. R. A. (N. S.) 999. [Ed. Note. For other cases, see Fraud, Cent. Dig. § 58; Dec. Dig. 58(3).] Report from Superior Court, Suffolk ty; John H. Hardy, Judge. Action by James J. Donovan against Mary G. Clifford. On report from the superior court. Judgment for plaintiff. C. F. Smith, of Boston, for plaintiff. [4] The evidence on this issue was meager. But in addition to the representations created or conveyed by her acts, fraudulently producing a false impression upon the mind of the plaintiff, there were statements made by the defendant when some of the sales were made which a jury properly could say impliedly represented that she had a present intention to pay for the goods, such as: "I am perfectly reliable. You will get a check for it the first of the month." "Mr. Donovan, If I you will get your money very shortly. owe you $200.00, no matter what the amount is, you will be paid." DE COURCY, J. The plaintiff, a dealer in millinery goods, made to the defendant, a milliner, the 19 sales referred to in the declaration; beginning August 24, 1914, ending October 6, 1914, and aggregating $207.82. There was evidence from which the jury could find the following facts: When the defendant moved to Boylston street about September, 1913, she was $7,000 in debt, and her business was greatly impaired during the year following; from August 1, 1914, to October 14, 1914, her indebtedness steadily increased and her stock diminished; about the 1st of September she had an attorney send a general form letter to her creditors offering to pay them with notes, but no cash; the middle of September her books showed an indebtedness of about $15,000, and she made an offer to her creditors of 25 per cent. in her unsecured notes; while this effort to compromise with her creditors was in progress she formed a corporation, known as By the terms of the report if there was any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MASS.DEC.111-115 N.E.-49 The jury also could find that these representations were false. Plainly the evidence referred to would warrant a finding that the defendant could have had no reasonable expectation of ever paying for these goods, and, as an inference therefrom, that she bought with an intention not to pay for them. On the other issues in the case, there was ample evidence. 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. (225 Mass. 516) CUNNINGHAM v. BOSTON & Y. S. S. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1917.) MASTER AND SERVANT 278(3) INJURIES authorize submission of the case to the jury. down, pretty near out." A witness testified that on two previous occasions, "the week before the accident and the Thursday before that," "while he was working the lights would just go out for a little while and then come up again exactly the same way as they did the day of the accident." Another witness testified that somewhere around three or four days before the accident, on two occasions, he had noticed that sometimes the lights would grow dim-"go down, in fact, so low that you could see the wire in the bulb, see the red wire and then they would come up again and brighten." An electrical expert witness in response to the question, "What would be an adequate cause for the light going out and continuing to flicker?" answered, "It would be some defect 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. Action by Peter C. Cunningham against the Boston & Yarmouth Steamship Company. Verdict for plaintiff, and case reported to the full court by the presiding judge. Ordered that judgment be entered on the verdict. B. A. Brickley and McLellan, Carney & Brickley, all of Boston, for plaintiff. Barton & Harding, of Boston, for defendant. PIERCE, J. March 16, 1914, the plaintiff, while in the employ of the defendant, received personal injuries for which he seeks to recover damages. The defendant was not a subscriber under the workmen's compensa tion act. The only issue is the defendant's negligence. The jury found for the plaintiff and thereupon the presiding judge, “being of opinion the right of the plaintiff to recover should be determined by the Supreme Judicial Court" reported the case to the full court. The facts in their aspects most favorable to the plaintiff's contention, could be found to be as follows: The accident happened at 11:50 A. M. in No. 2 hold, on the steamer "Prince George." The plaintiff and another longshoreman were engaged in taking out lumber sixteen to eighteen feet long. While the plaintiff was holding the timber, laid lengthwise on a truck, at the back, with both hands and was pushing with his breast, the lights went out; the wheels struck a ring bolt in the floor, the end of the timber "slew around," and crushed the little finger of the plaintiff between the lumber and one of the stanchions. The lighting arrangement of No. 2 hold condition, or a condition of the wiring where if the lights flickered it was due to a defect An electrician called by the defendant, in response to the question, "Would you say that the electric lights in the hold of a ship could have flickered for appreciable intervals, in one instance for at least ten minutes, without there being some difficulty or defect either in the apparatus which supplied the electricity, or in the insulation?" answered, "Well, if there was any flickering, there must have been some trouble in the insulation somewhere." He also stated that the condition of flickering would mean some defect in the dynamo. The evidence was plenary to warrant a finding that the lights flickered and did not go "dead"; that the flickering was due to a defect in the wiring system or in the dynamo; that the defect had existed for at least a week, and that the defendant might have discovered and remedied the defect in the exercise of reasonable care. We are of opinion that the evidence was |