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6. EVIDENCE 448 · PAROL EVIDENCE VA-, complaint, the sustaining of appellee's sepaBYING WRITINGS. If the language of a writing or any portion the additional third paragraph of appellants'

rate demurrer to the second amended, and thereof is ambiguous or of uncertain meaning or application, parol evidence may be heard, answer. not to vary or contradict the writings, but to Omitting formal and unquestioned allegaascertain the sense in which the language was tions, the complaint is, in substance, as fol. used and its application to the subject-matter of the contract, to arrive at the true intention of lows: Appellee was a wholesale dealer in the parties at the time the contract was entered coffee in the city of New York, and among into, and in ascertaining such intention the court the brands of coffee sold by it to dealers was will consider the relation and situation of the that known as “Santos 4's,” which was sold parties, the character of the transaction, and in bags of 50 pounds each, commonly desigall the surroundings and conditions attending the execution of the contract.

nated to dealers as "50's." That appellants, [Ed. Note.--For other cases, see Evidence, Will H. Robbins and Charles H. Johnston, Cent. Dig. 88 2066–2082, 2084; Dec. Dig. under the firm name of W. H. Robbins & 448.]

Co., were engaged in the wholesale grocery 7. SALES em 1(1)-CERTAINTY.

business in Greensburg, Ind. ; that in 1913 apAn alleged sale contract by letters and telegrams, wherein defendant wrote "quote us 25 pellee entered into a written contract with 50's Santos 4's same as last," and plaintiff re-appellants through the following letter and plied “Santos fours sixteen and half subject to telegrams for the sale and purchase of 25 return confirmation,” and defendant then tele- bags of 50 pounds each of said “Santos 4's"! graphed "ship twenty-five fifties Santos fours at quotation,” is so ambiguous and uncertain in at the agreed price of 1642 cents per pound, view of the phrase "same as last" that it will which letter and telegrams are as follows: not support an action for the purchase price.

Letter. [Ed. Note.-For other cases, see Sales, Cent.

Will H. Robbins

Charles H. Johnston Dig. $ 1; Dec, Dig. 1(1).]

W. H. Robbins & Co. Appeal from Circuit Court, Decatur Coun- Wholesale Grocers and Commission Merchants,

Clover and Timothy Seed. ty; Hugh Wickens, Judge. Action by the Brazil Syndicate R. & B.

Greensburg, Indiana, 3–8, 1913.

Brazil Syndicate, New York-Gentlemen: Company against Will H. Robbins and

Quote us 25-50's Santos 4's same as last. Charles H. Johnston, doing business under

Yours truly,

W. H. Robbins & Co. the firm name of W. H. Robbins & Co. Judg

Telegram. ment for plaintiff, and defendants appeal. Reversed, with instructions.

New York, Mar. 10, 1913.

W. H. Robbins & Co., Greensburg, Indiana: George L. Tremain and Rollin A. Turner, Santos fours sixteen and half subject to return both of Greensburg, for appellants. Thomas confirmation. E. Davidson, of Greensburg, for appellee.

Brazil Syndicate R. & B. Co., Inc.

Telegram. FELT, C. J. This action was brought by

Greensburg, Indiana, Mar. 10, 1913. appellee against appellants, Will H. Robbins Brazil Syndicate R. & B, Co., New York: and Charles H. Johnston, doing business un- Telegram received. Ship twenty-five fifties Sander the firm name of W. H. Robbins & Co., tos fours at quotation. W. H. Robbins & Co. to recover the purchase price of 1,250

That on March 19, 1913, in response to pounds of coffee alleged to have been sold said letter and telegrams, appellee shipped to appellants by appellee. The demurrer to to appellants by the usual and ordinary the amended second paragraph of complaint routes of carriage 25 bags of 50 pounds each for insufficiency of facts was overruled. Ap- of the coffee designated and so ordered by pellants filed an amended second paragraph appellants. That the same was addressed and an additional third paragraph of an- and consigned to W. H. Robbins & Co., Greensswer to the amended second paragraph of burg, Ind., and delivered to the Erie Railroad complaint. Appellee demurred to each of Company for transportation to appellants, such paragraphs of answer for insufficiency and said railroad company accepted said cofof facts alleged to constitute a defense to its fee and undertook the delivery thereof. That cause of action, and each of such demurrers appellee caused the same to be billed to appelwas sustained. Thereupon appellee with-lants and mailed to them an invoice and bill drew its first paragraph of complaint and of lading for the coffee so shipped as aforeappellants withdrew their first paragraph of said, which invoice and bill of lading were

Appellants failed and refused to received by appellants. That said railroad plead further, and elected to stand on their company was at said time a common carrier said answers and the rulings of the court in of goods and nerchandise from the city of the demurrers thereto, and the court ren- New York to Greensburg, Ind., and other dered judgment for appellee against appel. points. That it was understood by appellants in the sum of $207.50. From this lants that appellee was selling and appellants judgment appellants appealed, and have as- were buying 25 bags of 50 pounds each of signed as error the overruling of their de- coffee known as “Santos 4's" at the agreed murrer to the amended second paragraph of price of 1642 cents per pound.


The memoranda accompanying the demur-y dealing, but the rule is not changed by a rer to the complaint is, in substance, as fol- mere right of inspection to ascertain whether lows: The complaint does not saver that the the goods delivered are, in fact, such as goods sold were delivered to the purchasers; were purchased. The right of inspection, in the averments do not show an unconditional the absence of any established custom or purchase of the goods f. o. b. New York City; agreement to the contrary, does not prevent the averments do not show the coffee shipped the title from passing to the purchaser on was the "same as last," nor do they explain delivery to the carrier of the goods duly conthe meaning of such phrase; the coniplaint signed to the purchaser, but, if on inspecshows the goods were never delivered to the tion the goods are not found to be such as purchaser, but were delivered to the Erie were purchased, that fact may authorize a Railroad Company; the averments do not rescission of the contract of sale. Wind v. show an unconditional sale of the coffee with- Iler & Co., 93 Iowa, 316, 61 N. W. 1001, 27 L. out the right of inspection at Greensburg, R. A. 219, 220; Foley v. Felrath, 98 Ala. 176, Ind., and confirmation or rejection and com- 13 South. 485, 39 Am. St. Rep. 39; Boothby pliance with conditions of payment; the aver v. Plaisted, 51 N. H. 436_437, 12 Am. Rep. ments do not show that appellants received 140; 4 Elliott on Railroads (2d Ed.) § 1414 ; potice of the shipment or that the seller per- 35 Cyc. 195. formed all the conditions of the sale to be [3] If goods are sold to be delivered by the performed by it. The theory of the com- seller at the residence or place of business of plaint is that the letter and telegrams con- the purchaser, a delivery to the carrier is not stitute a contract of sale, that appellants ac- a delivery to the purchaser; for in such case cepted the proposition and terms of appellee the carrier is the agent of the seller and not for the sale of 25 bags of the brand of coffee of the purchaser. In such instance failure to designated, at the price quoted, and that ap- deliver the goods to the purchaser according pellee thereupon duly consigned the ship to the terms of the sale will defeat recovery ment to appellants, sent them a bill of lading of the purchase price of the goods. Section therefor, and delivered the coffee to the Erie (1040, Benjamin, Sales (1883); 35 Cyc. 195, and Railroad Company, a common carrier of such cases cited; Braddock Glass Co. v. Irwin, goods from New York to Greensburg, Ind., 152 Pa. 440, 25 Atl. 490; McNeal v. Braun, for transportation and delivery to appellants, 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. and thereby they became the owners of the Rep. 441; Devine v. Edwards, 101 Ill. 138– coffee at the time of its delivery to the rail. 141; Murray v. Nichols Mfg. Co., 11 N. Y. road company as aforesaid.

Supp. 734; Bartlett v. Jewett, 98 Ind. 206; [1] Where goods are bought at one place to Sohn v. Jervis, 101 Ind. 578, 1 N. E. 73. be consigned and transported to the pur The amended second paragraph of answer chaser at another place, in the absence of any admits the execution of the letter and telearrangement or agreement to the contrary, grams set out in the complaint, and avers the general rule is that delivery by the seller that the phrase "same as last” in appellants' to a common carrier of such goods, duly con- letter of March 8, 1914, referred and had refsigned to the purchaser, is a delivery to the erence to a former shipment of coffee by appurchaser; for the carrier thereby becomes pellee to appellants, and that both parties the agent of the purchaser, and title to the then and there understood the same, and that property passes to him at the time of such it had a special meaning, and referred to the delivery.

condition and terms of delivery and payment There are exceptions to this general rule, for said former shipment, and both parties but, in the absence of facts showing a differ- knew and understood that by the quotation ent agreement or arrangement, the presump- asked for in said letter the coffee was to be tion is that the general rule prevails. Pa. Co. delivered to the purchasers in Greensburg, v. Holderman, 69 Ind. 18–26; Pa. Co. v. Poor, Ind., as former shipments had been delivered, 103 Ind. 553, 554, 3 N. E. 253; Sohn v. and that “Santos 4's" was a standard grade Jervis, 101 Ind. 578–582, 1 N. E. 73; Butler of coffee quoted and sold generally on the v. P., C., C. & St. L. R. R. Co., 18 Ind. App. market, and was so designated by all dealers 656-660, 46 N. E. 92; Tebbs v. C., C., C. & in coffee; that in November, 1912, a shipment St. L. Ry. Co., 20 Ind. App. 192–199, 50 N. E. of such coffee was made to appellants upon 486; Kilmer v. Moneyweight Scale, 36 Ind. the express agreement that said coffee should App. 568–571, 76 N. E. 271; Hill v. Fruita, be delivered to appellants at Greensburg, etc., Co., 42 Colo. 491-497, 94 Pac. 354, 126 Ind., and there be examined by them, and, if Am. St. Rep. 172; Kelsea v. Ramsey & Gore satisfactory, to be accepted and paid for withMfg. Co., 55 N. J. Law, 320, 26 Atl. 907, 22 in 90 days from the date of such delivery to L. R. A. 415, and notes; 4 Elliott on Rail- them in Greensburg, and such former shiproads (2d Ed.) 1414; 5 Elliott on Contracts, ment was delivered to and paid for by appel$ 5042.

lants on such conditions; that in January, [2] The general rule above stated may be 1913, appellants made another similar purchanged by agreement of the seller and purchase, and the same was shipped, examined, chaser, either express, or implied from facts accepted, and paid for within 90 days from and circumstances or an established course of the date of delivery in Greensburg, under the

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aforesaid terms and conditions; that when “In interpreting a contract the language emthe purchase was made in November, 1912, ployed therein is the exclusive medium through as aforesaid, it was expressly agreed by and which to ascertain its meaning; but in case the between appellants and appellee that any of more than one meaning, the situation of the

terms employed are ambiguous, or susceptible future purchase of coffee made by appellants parties and the circumstances under which the should be upon the condition that the same contract was made may become a proper subject would be delivered by appellee to appellants of inquiry in order to arrive at the sense in

which the language was employed. Cravens v. at Greensburg, Ind., subject to inspection and Eagle Cotton Mills Co., 120 Ind. 6 [21 N. E. payment as above stated; that appellee did 981, 16 Am. St. Rep. 298), and cases cited. not deliver the aforesaid purchase of coffee This in no wise militates against the rule that of March 10, 1913, to appellants in Greens- from the language used in the writing, and that

the meaning of the parties is to be ascertained burg, Ind., or any part thereof, and the same the interpretation of the instrument is a duty has never been delivered to them.

resting upon the court. The court may, howThe third paragraph of answer is substan- ever, in a proper case, direct the jury that the tially the same as the amended second para- instrument may mean one thing or the other, de

pending upon extraneous circumstances to be graph.

found by them from the evidence.” The gist of the memoranda accompanying the demurrers to the special answers is that

In Leiter v. Emmons, 20 Ind. App. 25, 50 the answers do not show that the contract of N. E. 41, supra, this court, by Robinson, C. J., sale is indefinite, uncertain, or ambiguous;

said: that the meaning of the phrase "same as “As it was a contract made with reference to last” is not uncertain, indefinite, or ambigu- a particular business, it is presumed that it was ous, when read in connection with the whole made with reference to the ordinary course of

such business. In such case it would be proper contract set out in the complaint.

to consider the general and known course of [4] Accepting the theory of the complaint business of appellants. While it is true that as indicated by its general tenor, the contract usage cannot control an express contract, pet, of sale must be determined by a considera- where a contract is ambiguous, the presumption tion of the letter and telegrams set out there usage or general course of the particular busi.

is that it was made with reference to the known in in the light of the other averments, and ness. In such case the question becomes one of in so doing effect must be given to all parts fact to be determined as any other question of thereof if it can be done reasonably without

fact." doing violence to the evident intention of the

[7] In our view the contract under conparties as ascertained from a due considera-sideration is ambiguous, and especially the tion of all portions of the writings. [5] Here the contract is in writing, and the phrase "same as last” in the letter of March

8, 1913. language employed is unambiguous, it is a cardinal rule of construction that it shall be

This phrase is susceptible of more than so interpreted as to carry into effect the in

one meaning. It was used by appellants in tention of the parties as expressed by the

connection with a particular business, and writings.

was addressed to pellee, with whom the [6] If the language or any portion thereof answer shows appellants had established a is ambiguous or of uncertain meaning or ap

course of dealing in which the phrase so plication, parol evidence may be heard, not used may have been understood by all the to vary or contradict the writings, but to as- parties to have the meaning alleged in the certain the sense in which the language was

In such instance the previous estabused and its application to the subject matter lished course of dealing and agreements beof the contract, to arrive at the true intention tween the parties, their situation, and the of the parties at the time the contract was circumstances under which the contract was entered into. In ascertaining such intention made became proper subjects of inquiry to the court will, if necessary, consider the re- ascertain the application of the phrase and lation and situation of the parties, the char- the sense in which the language was emacter of the transaction, and all the surround-ployed. ings and conditions attending the execution If, as alleged in the answer, appellee unof the contract. Warrum v. White, 171 Ind. dertook to deliver the goods to appellants at 574–577, 86 N. E. 959; Hitz v. Warner, 47 Greensburg, the shipment would not be conInd. App. 612-613, 93 N. E. 1005; Chapman trolled by the general rule above announced, v. Lambert, 176 Ivd. 461-467, 96 N. E. 459; and failure to so deliver them would be a Olds Wagon-Works v. Coombs, 124 Ind. 62- complete defense to appellee's suit. 65, 24 N. E. 589; Martindale v. Parsons, 98 We therefore hold that each of the special Ind. 174-179; Leiter v. Emmons, 20 Ind. App. answers states a defense to the cause of ac22-25, 50 N. E. 40; Thomas v. Troxel, 26 tion alleged in the complaint, and it was error Ind. App. 322–327, 59 N. E. 683; Kann v. to sustain the demurrers thereto. Brooks, 54 Ind. App. 625, 101 N. E. 513.

The judgment is reversed, with instrucIn Olds Wagon Works v. Coombs, 124 Ind. tions to overrule each of the demurrers to 65, 24 N. E. 590, Judge Mitchell used lan- the special answers, and for further proceed.


(225 Mass. 425)

ous wife, namely, Ellena T. Palmeter, who is HERSAM v. ÆTNA LIFE INS. CO. et al. the claimant in this action. (Supreme Judicial Court of Massachusetts. The agreed statement of facts is meager. Suffolk. Jan. 4, 1917.)

It is not questioned that this policy was right1. INSURANCE Cw585(4) - CONSTRUCTION OF ly issued by the company, after the death of POLICY BENEFICIARIES - "THEIR CHIL- Eben S. Thompson. In the absence of the DREN,

application and the policy we infer that the Where life insurance policy is payable to the husband of the insured or, in the event of contract was between the company and Mrs. his death before hers, to their children, their ex- Thompson, and that she paid the premiums. ecutors, administrators, or assigns, the words St. 1913, c. 716, $ 5. See Millard v. Brayton, “their children" referred to the children of both 177 Mass. 533, 59 N. E. 436, 52 L. R. A. 117, insured and her husband, and does not include 83 Am. St. Rep. 294. The record sets out only a child of the husband by a previous wife.

[Ed. Note. For other cases, see Insurance, the above quoted clause in the policy. The Cent. Dig. 88 1463, 1466; Dec. Dig. Om585(4): sole question raised by the report and argued

For other definitions, see Words and Phrases, by counsel is one of interpretation of this First and Second Series, Their Children.)

clause, thereby determining which of the 2. INSURANCE C585(4) BENEFICIARIES parties is entitled to the insurance money. RIGHT TO PROCEEDS. A life insurance policy was made payable

[1] The first contention of the claimant to the husband of insured or, in the event of his is that she is entitled to the proceeds of the death before hers, to their children, their ex- policy as the only child of said Eben S. ecutors, administrators, or assigns. band was dead when the policy was issued. Thompson. But we see no reason for interThere were no children of insured and the hus- preting the word “their” in other than its band, but the husband left a child þy a former ordinary collective meaning, referring to wife, who was administratrix of her father's children of both Martha and Eben, and not estate. Held, that as the interest of the husband was contingent upon his surviving the to children of Eben by another wife. Craninsured, he acquired no transmissible interest dall v. Ahern, 200 Mass. 77, 85 N. E. 886; in the proceeds of the policy which his personal Crapo v. Pierce, 187 Mass. 141, 72 N. E. 935. representative could enforce. (Ed. Note.-For other cases, see Insurance,

The language viewed in the light of the cirCent. Dig. 88 1463, 1466; Dec. Dig. 585(4).) cumstances under which it was used, mani3. INSURANCE 535(4) -- PROCEEDS-LAPSED fests no different purpose. Considering the TRUST.

present policy by itself, the language was Where a life insurance policy was made pay: appropriate to provide for a possible postable to the husband of insured, or in the event of his death before hers to their children, where humous child of Eben. The reasonable inferthere are no such children, the right to the pro-ence from the agreed facts, however--and ceeds reverts to the insured and her representa- indeed the actual fact as stated in the detives as a lapsed trust.

fendant's answer-is that the language sim(Ed. Note. For other cases, see Insurance, ply followed the wording of the earlier policy, Cent. Dig. 88 1463, 1466; Dec. Dig. 585(4).]

which was dated June 11, 1865, when the two

well might have anticipated the likelihood of Appeal from Municipal Court of Boston, having children. 25 Cyc. 889, and cases cited. Appellate Division.

[2] The claimant further contends that if Action by A. Hersam, executor, against the not entitled to the proceeds of the policy as Ætna Life Insurance Company and Ellena daughter, she takes it as administratrix of T. Palmeter, claimant, to determine the right the estate of her father. By the terms of to proceeds of an insurance policy. From a the clause in question, however, the interest judgment of the appellate division in favor of Eben S. Thompson was contingent upon of claimant, plaintiff appeals. Reversed and his surviving the assured. As he was derendered.

ceased when this paid up policy was issued, Jas. E Young, of Boston, for appellant. manifestly no interest could vest in him as Herbert S. Riley, of Boston, for appellee. beneficiary. Even if we consider that this

policy as between the parties stands in the DE COURCY, J. The insurance policy was place of the original (see Pingrey v. Nat. issued on the life of Martha A. Thompson, Life Ins. Co., 144 Mass. 374, 11 N. E. 562 ; the plaintiff's testatrix, and was “payable to Millard v. Brayton, 177 Mass. 533, 540, 59 her husband, Eben S. Thompson, or in the N. E. 436, 52 L. R. A. 117, 83 Am. St. Rep. event of his death before hers to their chil. 294), any interest vesting in him was subdren, their executors, administrators or as. ject to be defeated by his death before that signs.” It was a paid up policy for $612, of the assured. He had no transmissible inexecuted and delivered on or about June terest in the proceeds, and his personal rep. 28, 1877, and apparently was given in con- resentative consequently acquired none. Fulsideration of the surrender of a life policy | ler v. Linzee, 135 Mass. 468; Haskins v. Kenfor $1,000, dated June 11, 1865. Eben s. dall, 158 Mass. 224, 33 N. E. 495, 35 Am. St. died February 3, 1877, or more than four Rep. 490. See Wilde v. Wilde, 209 Mass. 205, months before the policy in question was is- 95 N. E. 295; Davis v. New York Life Ins. sued. No children were born to him and Co., 212 Mass. 310, 98 N. E. 1013, 41 L. R. A. Martha A., but he had a daughter by a previ. | (N. S.) 250.

OmaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


[3] As there were no children of Eben S. Geo. Chandler Coit and Chas. S. Pierce, and Martha A. Thompson to take as bene both of Boston, for plaintiff. Lee M. Friedficiaries after his death, the right reverted man and Swift, Friedman & Atherton, all of to the assured as a lapsed trust, and on her Boston, for defendant. death the benefit of the insurance passed to her representative.

RUGG, C. J. The plaintiff is the tax colIt follows that the order of the appellate lector of the town of Milton. He brings this division adjudging the fund in question to be action to recover taxes assessed upon the de the property of the claimant, Ellena T. Palm- fendant's real estate in that town for 1912, eter, must be reversed, and judgment enter- 1913 and 1914. The defendant is a charitable ed in favor of the plaintiff.

corporation entitled to an exemption from So ordered.

taxation under St. 1909, c. 490, pt. 1, § 5, for

its “real estate owned and occupied” by it or (225 Mass. 418)

its officers for the purposes for which it was

incorporated. But it is not entitled to exBABCOCK V. LEOPOLD MORSE HOME

emption on any other ground. The defendFOR INFIRM HEBREWS AND

ant owned real estate which for several ORPHANAGE.

years prior to 1912 was adapted for and (Supreme Judicial Court of Massachusetts. used as a home for aged and infirm and for Norfolk. Jan. 4, 1917.)

children. The aged and infirm were gradual. 1. TAXATION Cm 241(1) — EXEMPTION – REAL ly removed and for some time it was used ESTATE OF CHARITABLE CORPORATION. for children only. Modern philanthropic

A charitable corporation is not entitled to methods tend toward providing homes for an exemption of real estate from taxation, un children in families rather than gathering der St. 1909, c. 490, pt. 1, § 5, exempting real estate owned and occupied by a corporation or them in a general home. The defendant was its officers for the purpose for which it was authorized by St. 1912, c. 113, to transfer the incorporated, unless the real estate is actually income of all its property to another charioccupied for the charitable purposes for which table corporation working in the same field. the corporation was organized.

[Ed. Note.-For other cases, see Taxation, That act was accepted, a decree of the court Cent. Dig. 88 389, 391, 393; Dec, Dig. entered according to its terms, and the de241(1).]

fendant has paid its income to the other cor2. TAXATION Om 241(1) — EXEMPTION REAL poration. The children were all removed ESTATE OF CHARITABLE CORPORATION-00- from the defendant's home in March, 1912. In order that real estate of a charitable cor

The defendant voted to allow the Canterbury poration may be exempt from taxation under Street Home to have such of its furniture St. 1909, c. 490, pt. 1, § 5, the nature of the and household equipment as it wanted. occupation of the real estate by the corporation Some has been taken and the rest left at the or its officers must be such as to contribute immediately to the promotion of the charity and in- defendant's home in Milton. Since the chilvolve a physical participation in the forward-dren have been removed, a caretaker has ing of the corporation's beneficent objects. resided in the house. The board of trustees

(Ed. Note.- For other cases, see Taxation, of the defendant, in April, 1912, granted the Cent. Dig. 88 389, 391, 393; Dec. Dig.

request of the Hebrew Women's Sewing As241(1).]

sociation to use the premises for “Country 3. TAXATION 251–EXEMPTION—BURDEN OF Week” for poor children. There was testiPROOF.

In an action to recover taxes, the burden mony to the effect that once at least in each is on a party claiming exemption from taxation of the years 1912, 1913 and 1914 meetings of to establish his contention.

the trustees or officers of the defendant had [Ed. Note.-For other cases, see Taxation, been held in the house, but the record books Cent. Dig. 88 343-345; Dec. Dig. 251.)

only showed records of meetings held in Bos4. TAXATION em 241(1) - EXEMPTION REAL ton.

There was testimony from several witESTATE OF CHARITABLE CORPORATION. nesses that since March, 1912, the premises

Where the inmates of the home of a charitable corporation, organized to provide a home had been occupied only by the caretaker. for aged and infirm and for children, were re- The judge found that the real estate was not moved, and thereafter only a caretaker resided being used for the purposes for which the in the house, the real estate comprising the defendant was incorporated and found for home was not exempt from taxation under St. 1909, c. 490, pt. 1, 85, though the officers and the plaintiff. trustees occasionally met at the house and some [1, 2] The defendant is not entitled to an of the furniture was left therein.

exemption from taxation unless the real es[Ed. Note.-For other cases, see Taxation, tate is occupied for the charitable purposes Cent. Dig. $S 389, 391, 393; Dec. Dig. 241(1).]

for wlich it was organized. Charlesbank

Homes v. Boston, 218 Mass. 14, 105 N. E. 459. Exceptions from Superior Court, Norfolk Such occupancy means something more than County; Philip J. O'Connell, Judge.

that which results from simple ownership Action by Josiah Babcock against the and possession. It signifies an active apLeopold Morse Home for Infirm Hebrews propriation to the immediate uses of the and Orphanage. Findings for plaintiff, and charitable cause for which the owner was defendant excepts. Exceptions overruled. | organized. The extent of the use, although

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