So far as appears in the case at bar, the defendant is a stranger to any contemplated litigation between the plaintiff and those from whom it is stated in the defendant's letter the alleged claim is due; and even if the defendant as to such litigation would be a witness, it is plain that a bill for discovery will not lie for the reasons before stated. The plaintiff relies upon the case of Orr v. Diaper, 4 Ch. D. 92, where it was held by a vice chancellor that a bill would lie against ship owners who had shipped goods bearing counterfeits of the plaintiff's trademarks, for discovery of the names of the consignors from whom the goods were received. The defendants in that case, by shipping the goods with the counterfeit trademarks upon them, could well have been held to have participated in the fraud which was practiced upon the plaintiff, who might have been entitled to injunctive or other relief against the defendants. In that case it was said: give rise to abuses which it was intended the (225 Mass. 512) OZZOLA V. MUSOLINO et al. 1. CONTRACTS 26-ACTION-DEFENSES. The binding force of a clear and unambiguous contract made by correspondence was not affected by a letter of one of the parties stating he could not "make out" whether the contract had been concluded or not. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 119, 120; Dec. Dig. 26.] 2. SALES 418(2) — DAMAGES - FAILURE TO DELIVER. Damages recoverable for failure to deliver "It has been submitted that the defendants goods sold are the difference between the conare mere witnesses; but their position, they be-tract price and what the goods would have been ing the actual shippers, is different from that of mere witnesses.' We do not think that Orr v. Diaper, supra, is to be regarded as an authority in favor of the plaintiff in the case at bar, but is to be distinguished therefrom. worth at the time and place specified in the contract for delivery. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1175-1179; Dec. Dig. 418(2).] Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge. Action by Giovanni Ozzola against Antonio Musolino and others and an action by Antonio Musolino and others against Giovanni [4] We do not agree with the contention of the plaintiff that R. L. c. 203, § 13, implies that bills for discovery may be maintained against persons who have no interest in a│Ozzola, tried together without a jury. Depending or anticipated suit. We construe the statute as authorizing the allowance of costs to such defendants, although the plaintiff does not seek a decree against them; but it is not to be inferred that the allowance of costs under such circumstances was intended to change the rule in equity that a bill for discovery will not lie against strangers to the contemplated litigation. Wright v. Dame, 1 Metc. 237. It is to be observed that the letter sent by the defendant to the plaintiff does not describe any specific property, either real or personal, to which the plaintiff is entitled. It merely recites that there is a claim against a third person which the defendant thinks he can collect. The nature of the alleged claim, whether liquidated or unliquidated, or whether it grows out of a tort or contract, does not appear. Apparently the reason why discovery is sought is because the parties cannot agree upon the compensation which the defendant is to receive for making the collection. It is obvious that the defendant will not be a party to any proceedings which may be brought to enforce the collection. Under these circumstances, we are of opinion that a bill for discovery cannot be maintained. To relax the salutary rule so firmly established and thereby permit bills of discovery to be maintained against persons not parties to any proposed litigation, in a contest between others, would, in our opinion, fendants in the first action except to refusal requests of plaintiff were as follows: the defendants the difference between the price Currier, Young & Pillsbury and Henry C. Tuttle, all of Boston, for Giovanni Ozzola. John T. Hughes, of Boston, for Antonio Musolino and others. CROSBY, J. The plaintiff in the first case seeks to recover for two shipments of cheese alleged to have been sold and delivered to the defendants. The defendants admit the receipt of the goods and that they have not paid for them, but claim that the cheese was of inferior quality and unmarketable. They agree that they realized from the sale of it an amount For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 Mass. 467) substantially equal to the price charged by [ the plaintiff. They also contend that they UNITED STATES DRAINAGE & IRRIGA sold the cheese for the plaintiff's account, and that they are entitled to deduct from the amount received, a commission on the sale. TION CO. v. CITY OF MEDFORD. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 5, 1917.) CONTRACTS-SEAL. The plaintiff is located in Italy and the de- 1. HEALTH 16(1)-BOARD OF HEALTH—. fendants reside in Boston. The negotiations Where the members of the board of health between the parties were conducted wholly of a city executed contracts for drainage work by correspondence which appears in the bill which recited that the parties had set their hands and seals thereto, but there was no inof exceptions. Whether the goods were sold dividual seal of wax or other adhesive substance directly to the defendants or were shipped impressed on them or affixed to them, the conto them on consignment to be sold on the tention of the city that the contracts did not plaintiff's account, was a question to be de-ecuted in its name and as its contracts, but in bind it because they were under seal, but not extermined by the presiding judge upon the the names and as the contracts of the individ evidence as disclosed by the correspondence. uals who signed and sealed them, was without Upon this evidence the defendants were liable as matter of law as purchasers of the goods for the contract price. Accordingly their request for ruling could not have been given. [1] The second action is brought for breach of an alleged contract for failure to deliver to the plaintiffs five hundred loaves of cheese. The question whether a binding contract was entered into between the parties is, in the first case, to be determined solely by their correspondence. A careful examination of the letters which passed between the parties, all of which we do not consider it necessary to refer to, shows that no binding contract was made before August 5, 1910. On that date by letter to Ozzola, Musolino and Berger accepted the offer that Ozzola had made in previous letters. Its binding force cannot be affected by Ozzola's letter of August 16th, in which he writes that he cannot "make out" whether the contract has been concluded or not. The letter of August 5th is definite and free from ambiguity; it contains a clear and unconditional acceptance of the defendant's offer and there is nothing to show that the contract was afterwards waived by the plaintiffs. [2] As the defendant in this action is liable for breach of contract in failing to deliver the goods, the plaintiffs are entitled to re cover as damages the difference between the contract price and what the goods would have been worth at the time and place specified in the contract for delivery. The plaintiffs were entitled to have the court make the rulings embodied in their second and sixth requests. If it is necessary to protect the rights of the plaintiffs in this case that further proceedings in the first case should be continued until the final disposition of this case, application for that purpose can be made in the superior court. R. L. c. 170, § 4. The amount of the plaintiffs' damages are to be determined in the superior court. It follows that in the first case the exceptions are overruled, and in the second case the exceptions are sustained. So ordered. force. [Ed. Note. For other cases, see Health, Cent. Dig. 13; Dec. Dig. 16(1).] 2. MUNICIPAL CORPORATIONS 889- IMPROVEMENTS-ABATING NUISANCE-STATUTE. Rev. Laws, c. 75, § 75, provides that land which is wet, rotten, or spongy, or covered with stagnant water, so that it is offensive or injurious to health, shall be deemed a nuisance, which the board of health of a city or town where it lies may abate as provided in following will exceed $2,000, such abatement shall not be sections, but that if the expense of abatement made without a previous appropriation. Held, that the use of the plural noun lands" in the original statute of 1868 (St. 1868, c. 160, § 1) text, to be construed to mean that all lands of does not require the word "land," with the conthe character described within the territorial boundaries of a municipality, regardless of similar character, are to be treated as a single their contiguity or otherwise to other lands of nuisance in determining whether the expenses of abating the nuisance or several nuisances will exceed $2,000. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1871-1875; Dec. Dig. 889.] 3. MUNICIPAL CORPORATIONS 889-IM 6. HEALTH 16(1)—BOARD OF HEALTH-CONTRACT-APPROVAL BY MAYOR-STATUTE. The provision of the charter of the city of Medford (St. 1903, c. 345, § 39, as amended by St. 1906, c. 252, § 5) that all contracts made by any department of the city, where the amount involved is $100 or more, shall be approved by the mayor is applicable to the board of health acting for the city under Rev. Laws, c. 75, 88 75-82, in contracting for the abatement of the nuisance of spongy or water-covered land. [Ed. Note.-For other cases, see Health, Cent. Dig. 13; Dec. Dig. 16(1).] 7. HEALTH 16(1)-BOARD OF HEALTHCONTRACTS-NOTICE OF LIMITATIONS. A drainage and irrigation company, contracting with the board of health of a city, acting under Rev. Laws, c. 75, § 75, to abate the nuisance of spongy or water-covered land, was chargeable with knowledge of the limitations on the contractual powers of the board, in that the city charter required that all contracts involving $100 be approved by the mayor, and was barred from any recovery for work done where the contracts, involving more than such amount, were not so approved. [Ed. Note.-For other cases, see Health, Cent. Dig. 13; Dec. Dig. 16(1).] Report from Superior Court, Middlesex County; Henry A. King, Judge. The record of the board shows that the notices were duly served upon all parties entitled thereto; that the board duly heard all parties appearing at the time and place appointed in the notice; that the board viewed the premises described in the several petitions and thereupon it "adjudged and determined" as to each petition that: "Said petition is hereby granted; that the land described in said petition is rotten, spongy, and covered with stagnant water, and is offensive to the residents in the vicinity thereof, and injurious to the public health and to the health of the petitioners, and constitutes a nuisance to the petitioners and to the public; and that the expense of abating said nuisance and remedying said injury will amount to a sum not exceeding two thousand (2,000) dollars, to wit: $2,000 that said nuisance and injury shall be abated and remedied by said board by entering from time to time, upon a certain parcel of land together to the adjacent land drained thereby and bounded and described as follows. * After the adjudication of the nuisance the board of health and the plaintiff corporation enterd into nine distinct contracts, copies of which are set out in the nine counts of the declaration. By the terms of each contract, Action by the United States Drainage & Irrigation Company against the City of Med-all drainage ditches that may be required at the plaintiff agreed to lay out and excavate ford. On report of a judge of the superior this time for the purpose of mosquito excourt, who heard the case without a jury termination in all the salt marsh area deand found the facts as stated in an auditor's report. Judgment ordered to be entered for defendant. S. R. Cutler and H. W. James, both of Boston, for plaintiff. C. S. Baxter and G. C. Scott, both of Boston, for defendant. PIERCE, J. In the spring of 1913, ten separate petitions were duly presented to the board of health of the city of Medford, alleging that the land described therein is wet, rotten, spongy and covered with stagnant water, so that it is offensive to residents in its vicinity and is injurious to the public health, and to the health of the petitioners; that said land constitutes a nuisance, source of filth and cause of sickness to the petitioners and to the public, and praying that the same be deemed a nuisance and abated as is provided by chapter 75 of the Revised Laws, §§ 75 and 85 inclusive. June 11, 1913, the board of health issued an order of notice on each of nine of the original ten petitions in terms following: "To the petitioners upon the foregoing petition; all persons whose land it may be necessary to enter upon to abate the nuisance described in said petition; or any other person who may be damaged or benefited by the proceedings prayed for in said petition, and the mayor of the city of Medford. Notice is hereby given that the board of health of Medford has appointed the twentieth day of June, A. D. 1913, at 8 p. m., and their office in the city hall of Medford as the time and place for a hearing upon said petition, at which time and place you may be heard upon the necessity and mode of abating said nuisance, the question of the damages and of the assessment, and apportiorment of the expenses of said abatement." scribed in each of the contracts, and the board of health agreed to pay as compensation therefor a sum of money per acre measured and determined by the acreage drained. Under these contracts the largest sum to be paid upon the performance of any one contract is $1,662.90, and the smallest $108.30. The testimonium clause of each contract reads: "In witness whereof the said parties have hereto set their hands and seals this 19 day of July, A. D. 1913." Each of the instruments is signed by the three individuals constituting the board of health and by the plaintiff corporation by its president, and bears the corporate seal. Upon some of the contracts there are brackets enclosing the letters "L S." opposite the names of the signers; but no seal of wax or other adhesive substance is impressed or affixed to or upon any contract. The plaintiff, subsequent to July 19, 1913, proceeded and performed the work in accordance with the terms of the contract, and no payments have been made therefor. Subsequent to the completion of the work by the plaintiff, the board of health proceeded to assess the benefits on account of the abatement of the nuisance, or nuisances, upon the several tracts of land adjudged benefited thereby. No specific appropriation was made by the city of Medford to carry out said work and of the general appropriation made for the board of health for the fiscal year 1913, less than $600 remained unexpended on July 19, 1913. April 2, 1914, an action was brought against the city of Medford to re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cover damages resulting to the plaintiff by reason of the refusal of the defendant to pay to the plaintiff the compensation agreed to be paid to it by the board of health upon its performance of the contracts. The case is before us upon a report of a judge of the superior court who heard it without a jury and found the facts to be as stated in an auditor's report, which is made a part of this report and is the only evidence. [1] The contention of the defendant that the written contracts declared on do not bind the city because they are contracts under seal not executed in the name of the city and as its contracts, but in the names and as the contracts of the individuals who signed and sealed them, is without force for the all-sufficient reason that there is no individual seal of wax or other adhesive substance impressed on them or affixed to them. Tasker v. Bartlett, 5 Cush. 359. The copies of the contracts set out in the several counts recite a sealing, but beyond that there is nothing to indicate that the seal of the individual members of the board of health was ever impressed on or affixed to them. Duncan v. Duncan, 1 Watts (Pa.) 322, 325. The presence of such recital does not change the character of the instrument to which no seal is affixed from a simple contract to a specialty. Bates v. Boston & N. Y. C. R. R., 10 Allen, 255; Dean v. Am. Legion of Honor, 156 Mass. 436, 31 N. E. 1; Simpson v. Ritchie, 110 Me. 299, 86 Atl. 124; Taylor v. Glaser, 2 Serg. & R. (Pa.) 502, 504. The records of the board of health warrant the report of the auditor that: "The board of health proceeding under the provisions of Revised Laws, c. 75, §§ 75 to 82, inclusive, issued an order of notice on each of said nine petitions, viewed the premises in question, and after a hearing, severally adjudicated each of the nine several parcels of land described in said petitions a nuisance, and ordered the nuisance abated." The further estimate and finding of the board that the expense of abating the nuisance would not exceed $2,000 in each case was accurate, as proved by the cost of the performance of the work. indirectly the statute. It is quite conceiv⚫ able that a single tract of land of the character described in R. L. c. 75, § 75, should be a nuisance of such virulent nature as to demand a more radical and speedy abatement than a contiguous or remote parcel of like land of less noxious qualities. It must be stated that on this record the board did not split or divide land or contract to enable it to determine that the expenses of the abatement of any nuisance would not exceed $2,000. The auditor found, and the fact is not questioned, that "the three individuals who signed the nine several written contracts were at the date thereof the duly constituted board of health of the defendant city of Medford;" nor is his finding denied “that said board in 1913 was a department of the city of Medford under St. 1903, c. 345, §§ 33, 38." The charter of the city of Medford, St. 1903, c. 345, § 39, as amended by St. 1906, c. 252, § 5, provides that: * * "All contracts made by any department of the city, when the amount involved is one hundred dollars or more, shall be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor is affixed thereto except as otherwise provided herein or required by law, no expenditure shall be made or liability incurred for any purpose beyond the appropriations previously made therefor. The payment for expenditures made, or liability incurred by or in behalf of the city not in accordance with general laws, or with the provisions of said chapter three hundred and forty-five, or of acts in amendment thereof or in addition thereto, or with the ordinances made as therein provided, shall be void." [5] The contracts in the case at bar were made by the officers of the board of health, a department of the city of Medford, on behalf of the city. Spring v. Inhabs. of Hyde Park, 137 Mass. 555, 50 Am. Rep. 334; Worcester Board of Health v. Tupper, 210 Mass. 378, 383, 96 N. E. 1096, and cases cited. The obligation, if incurred, required no appropriation by the city because the amount to be expended in the abatement of the nuisance did not exceed the sum of $2,000 (R. L. c. 75, 875), under any single contract. [2-4] We cannot assent to the argument of [6, 7] The remaining question presented is the defendant that the use of the plural whether the contract was void as an obliganoun "lands" in the original statute 1868, c. tion of the city of Medford because it was 160, § 1, requires the word "land" with the not approved by the mayor. We are of opincontext in R. L. c. 75, § 75, to be construed ion that the provision of the charter that to mean that all lands of the character de- all contracts made by any department of the scribed in R. L. c. 75, § 75, within the terri- city where the amount involved is one huntorial boundaries of a municipality, regard-dred dollars or more shall be approved by less of their contiguity or otherwise to other the mayor, is applicable to the board of lands of similar character, are to be treated health acting for the city, under R. L. c. 75, as a single nuisance, in determining whether §§ 75 to 82 inclusive. The requirements that the expenses of abating the nuisance or sev- the contract shall be in writing and shall eral nuisances will exceed $2,000. Neverthe- receive the approval of the mayor do not less, it is quite true that in the determina- limit or destroy the powers conferred on the tion of the expenses of an abatement the board of health by R. L. c. 75, § 75, but regboard rightly cannot arbitrarily split or di-ulate the form and execution of agreements vide the land it has determined to be a nui- and instruments entered into by the departsunce, or the work to be performed to abate ment on behalf of the city. As checks upon it, in such a manner as to evade directly or hasty, ill-advised, and inconsiderate actions, Appeal from Supreme Judicial Court, Plymouth County. Suit by Edith M. Farrington, as adminis. tratrix, against John W. Miller and others, as executors. Decree for the plaintiff, and defendants appeal. Affirmed. Tyler, Corneau & Eames and Wm. C. Rice, all of Boston, for appellants. A. F. Barker, of Brockton, for appellee. as requirements that agreements shall speak in understandable and indisputable language the requirements of the charter take nothing from but add to the efficiency of the general laws. Clarke v. Fall River, 219 Mass. 580, 584, 107 N. E. 419. It follows that the contracts were ineffectual as obligations of the city, because they were not approved by the mayor. McLean v. City of Holyoke, 216 Mass. 62, 102 N. E. 929; Fiske v. Worcester, 219 Mass. 428, 430, 106 N. E. 1025, and cases cited. The plaintiff was chargeable with DE COURCY, J. The plaintiff's intestate, knowledge of the limitations of the contractual powers of the board of health, and is barred from any recovery. Douglas v. Lowell, 194 Mass. 268, 80 N. E. 510; Bartlett v. Lowell, 201 Mass. 151, 87 N. E. 195; Commercial Wharf Corp. v. Boston, 208 Mass. 482, 94 N. E. 805. In accordance with the terms of the report judgment is to be entered for the defendant. So ordered. (225 Mass. 535) FARRINGTON v. MILLER et al. (Supreme Judicial Court of Massachusetts. Plymouth. Jan. 6, 1917.) 1. EXECUTORS AND ADMINISTRATORS -CLAIMS-LIMITATIONS-EXECUTION. 437(3) Where plaintiff's intestate had a just claim against her brother's estate for services as housekeeper and caretaker which she had presented to his executors, who did not dispute it, but promised to attend to its allowance by the probate court, and she, plaintiff's intestate, was sick during the two years in which she might prosecute her claim, the most of the time being unable to attend to any business, plaintiff was entitled to sue on the claim under Rev. Laws, c. 141, § 10, providing that, where a creditor's claim has not been prosecuted within the time limited and the court is of the opinion that justice and equity require it, and that the creditor is not chargeable with culpable neglect in not prosecuting his claim, the court may give him judgment. Jane Miller, had a valid claim against the defendants as executors of the will of her brother Thomas W. Pope, for her services as his housekeeper, caretaker, domestic and nurse. Mrs. Miller did not bring suit within the prescribed statutory period of two years; and the plaintiff, who succeeds to her rights, brought this bill in equity under R. L. c. 141, § 10, which reads as follows: "If the Supreme Judicial Court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding section, is of opinion that justice and equity require it and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person; but such judgment shall not affect any payment or distribution made before the filing of such bill." [1] Among the conclusions of fact found by the master are the following: That the plaintiff's intestate, Jane Miller, was a sick person during the whole period of two years after the defendants gave their bonds as executors, and was entirely unable to transact business of any sort during the last fifteen months of this period; that failure to bring suit on her claim within two years was not "culpable neglect" within the meaning of said section 10; that justice and equity require that the plaintiff should have judgment for $3,960; and that sufficient funds remain in the hands of the executors so that such judgment would not affect any payment or distrib. 907(2)—QUESTIONS ution made before the filing of this bill. PRESENTED-FINDINGS-ABSENCE OF EVI [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1744-1747, 1764; Dec. Dig. 437(3).] 2. APPEAL AND ERROR DENCE. The subsidiary facts found by the master are final on appeal, in the absence of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2913, 2015, 2916; Dec. Dig. 907(2).] 3. EXECUTORS AND ADMINISTRATORS (3)-CLAIMS-LIMITATIONS-STATUTES. 437 To entitle a claimant to relief under Rev. Laws, c. 141, § 10, providing that, where a creditor has failed to prosecute his claim against a decedent's estate within the time limited and the court is of the opinion that equity requires it, and that the creditor is not chargeable with culpable neglect, the court may give him judgment, it is not necessary that the failure to sue seasonably was due to such fraud, accident, or mistake as would be a ground for equitable relief if there were no statute. [2] These conclusions are warranted by the subsidiary facts found by the master, which are final in the absence of the evidence. It would serve no useful purpose to recite these facts in detail. She had collapsed under her care of her brother; and from the time of his death in December, 1903, until her own decease in November, 1906, her history is one of progressive sickness, with nervous breakdown. Mrs. Miller presented her bill to the defendants (one of whom was her son) within six months after their appointment, and soon afterwards they paid her $500 on account. They told her they would allow the whole bill, but that it was for the court to decide. They took no action to determine whether it would be allowed until after the [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1744-1747, expiration of the special statute of limita1764; Dec. Dig. 437(3).] tions, when they included it in their account For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-47 |