Slike stranica

In McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153, it is 'said: "The exercise of the duty imposed upon the defendants by this statute was not dependent upon any action of the superintendent of buildings. They could not properly delay for him to direct, but it was for them to call on him for direction and approval."

nonaction, of a municipal officer, over whom | which in this respect is quite similar to ours, the tenant could have no control, and possi- and in the case of Landgraf v. Kuh, 188 Ill. bly no influence, would be to take from the 484, 59 N. E. 501, it was claimed the owners statute one of its most important and bene- could not be held liable, but that liability, ficial features and to greatly retard the if any, was against the tenants or occupants humane purpose intended." of the building destroyed by fire. The court, in passing on the question, referred to the decisions in some other states and said (188 Ill. 493, 59 N. E. 503): "The construction thus contended for may have been proper, as applied to the statutes under consideration, where such construction was adopted, but cannot be held to be the proper construction of the Illinois act of 1885. * * * Moreover, the notice, commanding such fire escapes to be placed upon the building, is required by section 3 to be given to 'the owners, trustees, lessee, or occupant, or either of them.' The injunction being in the alternative, the notice may be given to the one, as well as to the other, and therefore to the owner, as well as to the lessee or occupant. We are therefore of the opinion that the appellees were not relieved from liability in regard to the placing of fire escapes upon their building because the fourth floor of the premises, where appellant's intestate was at work at the time of her death, was in the possession and under the control of tenants of appellees, instead of being directly in the possession of appellees themselves."

[12, 13] It is insisted that the complaint is insufficient because the statute speaks in the alternative of the owner, lessee, or occupant of the building; that, in the absence of special averments showing such to be the case, it cannot be said that the owners of the building described in the complaint owed appellant any duty under the statute to provide fire escapes. It is also contended that the complaint is bad because the statute is so indefinite and uncertain in its terms and provisions that no one may definitely know what was intended and who is responsible for failure to provide fire escapes to the buildings mentioned in the act. These objections may be considered together, for, in our view of the act of 1909, the owner is primarily responsible for failure to provide fire escapes, though we do not hold that facts may not be averred to show in particular cases that the duty so to do devolves upon the lessee or other occupant of the building. If we are right in this conclusion, the objection that the statute is too indefinite and uncertain to be enforceable is also untenable. There are decisions under the statutes of certain states that tend to support the contention that the owner for purposes of such statutes is the one in immediate control and Occupancy of the building. Also that the persons responsible under the statute are not required to act until after notice by the officer designated in the act. In all these cases there will be found differences in the statutory provisions which to some extent account for the different opinions; but the fact still remains that the authorities are not in absolute harmony on the subject.

Cases in Ohio and Pennsylvania seem to turn upon the fact that the statutes impose the duty of providing fire escapes on the owner of the factory or workshop rather than the owner of the real estate, and a distinction is recognized between such owners.

The state of Maine has a statute in many respects similar to ours. In Carrigan v. Stillwell, 97 Me. 247, 54 Atl. 389, 61 L. R. A. 163, the court considered a situation somewhat similar to the one at bar, and after a careful review of many of the decisions said: "But the language of our statute is entirely different in this important respect. These safeguards are not merely required upon factories and workshops, but upon any building in which any trade, manufacture, or business is carried on, 'requiring the presence of workmen above the first story.' By our statutes, as we have seen, the penalty for failure to comply with the order of the municipal officers or fire engineers is imposed, in the alternative, upon the owner or occupant. And the provision in regard to the notice in writing, especially applicable to cases where the owner is not in possession, requires that, notwithstanding that fact, such notice must be given to the owner, if known. Upon the whole, we are of the opinion that the statutes which we have referred to impose the duty upon the owner of a building, within the application of these sections, or which by reason of its use is brought within their application, to provide and maintain suitable and sufficient fire escapes upon such a building, notwithstanding it is in the possession of a tenant."

By our statute "every building" described in the act shall be equipped as therein designated, and provision in certain instances is made for certificates and notices to be given to the "owner, lessee, or occupant of said In a number of cases under statutes somebuilding" and to the "owner, proprietor, or what similar to ours the owners have been lessee of such establishment or of the build-held liable, though the statutes contain proing in which such establishment is conduct- visions for notice from officials and name

alternative. McRickard v. Flint, supra; Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Arms v. Ayer, supra, and cases cited.

In Arms v. Ayer, supra, the court, in considering the Illinois statute, said: "We are not aware that any court has held such laws invalid because of their failure to definitely designate who should be liable. We think it clear that under this statute the owner is primarily liable for a failure to perform the duty." The charge in that case was against the "owners" under a statute which required certain buildings to be equipped with fire escapes, and also provided for notice by certain officials to "the owner or owners, trustees, lessees, or occupant of any building."

The complaint of appellant was sufficient to withstand the demurrer, and the evidence tended to show a liability against the appellees as owners of the building. We therefore conclude that the court erred in directing a verdict for appellees. Appellees, to be free from fault, must have had one or more outside fire escapes on the building, or, failing in this, must have provided other adequate means of escape from the building in case of fire, which means the fire chief held to be adequate and duly certified thereto, giving his reasons for so holding.

The judgment is therefore reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion.

(215 Mass. 80)

SHEA v. VAHEY et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)


In the absence of proof to the contrary, the law fixes the liability of parties bound on a note in the order of their signatures.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 612, 613; Dec. Dig. 253.*]


Oral evidence is admissible to determine the respective obligations as between themselves of parties liable on a note, regardless of the order in which their signatures appear thereon. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. § 423.*1 3. BILLS AND NOTES (§ 266*)—INDORSEMENT PAYMENT-CONTRIBUTION-ACTION.

Where one of the indorsers liable on a note under an oral agreement has paid, his remedy against the other indorsers liable is an action for contribution upon their agreement, and not an action on the note.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 615-619, 1724; Dec. Dig. § 266.*]

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action by John P. Shea against James H. Vahey and others. Judgment for defendants, and plaintiff excepts. Exceptions over


Brandeis, Dunbar & Nutter, of Boston (Edward F. McClennen and Austin T. Wright, both of Boston, of counsel), for plaintiff. George L. Mayberry and Philip Mansfield, both of Boston, for defendants.

RUGG, C. J. There was evidence from which it might have been found that the plaintiff was simply the agent of one of the indorsers of the note in taking up the note after maturity and in bringing this action.

[1-3] The defendant was the first of the four indorsers upon the note. The true relation as between themselves of parties liable on a note may be shown by oral evidence in actions between them to determine their respective obligations. It is only in the absence of proof to the contrary that the law fixes the legal effect of their liability on the instrument in accordance with the order of the signatures. Enterprise Brewing Co. v. Canning, 210 Mass. 285, 96 N. E. 673. When an outide agreement is proved the rights of the parties as to each other are fixed in accordance with its terms regardless of the order in which the signatures appear on the note. Lewis v. Monahan, 173 Mass. 122, 53 N. E. 150. There was ample evidence to support a finding that the indorsers, of whom there were three at the outset, agreed before signing the original note that they should share equally whatever they might be required to pay on it, and that later when the wife of one of the three signed a renewal of the original note making four indorsers it was agreed that the proportion of liability of the defendant should remain the same. The jury as shown by the verdict believed that this agreement was made. The plaintiff technically was not entitled to recover on the note. The action should have been by the indorser who has paid for contribution upon the oral agreement. The rulings were sufficiently favorable to the plaintiff. Exceptions overruled.

(214 Mass. 514)

WILSON V. MITCHELL-WOODBURY CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)


Under Bankr. Act of July 1, 1898, c. 541, $60, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1506), defining a preference as a transfer which enables a creditor to obtain a greater percentage of his debt than other creditors of the same class, a creditor, who holds three notes maturing at different times, one of which is paid in full by a transfer of property by the bankrupt to him, is given a preference, since the several notes did not constitute a single


[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 271, 273, 274; Dec. Dig. § 181.*]

2. BANKRUPTCY (§ 166*)-PREFERENCES-IN-in section 60 of the Bankruptcy Act. Act TENT OF DEBTOR. July 1, 1898, c. 541, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1506). The finding of the master makes it plain that a larger percentage of the defendant's claim would be paid out of the property of the bankrupt if the conveyance is permitted to stand than the other creditors would get. His finding was that one of three notes held by the defendant was paid in full. It cannot be said that this finding was plainly wrong, nor that, on the question of perference, the several notes maturing at different times constituted a single debt.

Two months before an insolvent corporation was adjudged a bankrupt, its president and general manager agreed with the representative of the defendant to ship, and later did ship, to defendant goods of the value of $3,500 in part settlement of a claim of the defendant against the insolvent corporation, consisting of three notes of $2,500 each and $1,600 of other indebtedness. The defendant's representative intended to obtain an advantage, although he did not have actual knowledge, but believed with good cause, that the debtor was insolvent, and the manager of the insolvent, while he may not have realized its insolvent condition, knew that he was giving the defendant an advantage over other creditors. Held, that there was a preference under the Bankruptcy Act even before the enactment of Bankr. Act June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1506), which expressly makes the intent of the bankrupt immaterial, whether such intent be necessary or not, since the law infers an intent by the debtor to grant a preference from such such circumstances, even though the hopefulness of the individual prevents him from having an actual purpose to prefer one creditor over others.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. $



[2] 2. The next question is whether there was a preference under the bankruptcy act arising from the intent of parties. The facts as found by the master are that on February 12, 1908, the Graves China Company was adjudicated a bankrupt. At that time it was hopelessly insolvent, the actual value of its assets being not in excess of $6,000, and its liabilities approximately $60,

000. Prior to December, 1907, the bankrupt owed the defendant on three promisA creditor to whom a bankrupt has granted sory notes, each for $2,500, for borrowed a preference cannot surrender part of the prop- money, and for more than $1,600 on other erty received in partial reduction of the dam-indebtedness. In December, 1907, the presiages sustained by the estate of the bankrupt. [Ed. Note. For other cases, see Bankruptcy, dent and general manager of the bankCent. Dig. §§ 285, 319; Dec. Dig. § 186.*] rupt came to Boston, and in consequence of 4. INTEREST (§ 46*)-COMPUTATION-PREFER-a conference with Mr. Woodbury representENCES BY BANKRUPT-RIGHTS OF TRUSTEES. ing the defendant at or about that time Where a bankrupt granted a preference, goods of nearly $3,500 in value were shipped the trustee in an action against the creditor for damages can recover interest only from to one Cochran for the defendant, which the date of the filing of the bill, where no de- took up one $2,500 note the balance being mand was made prior to that time. credited on account. The master finds:

[Ed. Note.-For other cases, see Interest, Cent. Dig. §§ 95-105; Dec. Dig. § 46.*]

Appeal from Superior Court, Suffolk County.

Bill in equity by Alfred C. Wilson, trustee, against the Mitchell-Woodbury Company. Decree for the plaintiff, and both plaintiff and defendant appeal. Reversed, with directions to amend the decree.

That this transaction was put through by Mr. Woodbury, for the purpose of obtaining a preference at a time when, although he did not have actual knowledge, yet he believed and had reasonable cause to believe, that the Graves China Company was insolvent, and would not be able to pay its creditors in full. That at the time, while Graves may not have realized the insolvent condition of his company, and had fairly in mind and actually in fact intended a preference, he knew that he was giving the defendant an advantage over other creditors, and actually discussed the desirability of keeping RUGG, C. J. This is a bill in equity brought the shipment of the goods to Cochran secret. by the trustee in bankruptcy of the Graves He was in no position to oppose China Company, a Missouri corporation, to any suggestions of the defendant, and readrecover for alleged unlawful preferences un-ily yielded to their proposition as a hope to der the national bankruptcy act. The case continue business and work out some plan comes to this court on appeals by both plaintiff and defendant from a final decree.

Anson M. Lyman, of Boston, for plaintiff. Carver, Wardner, Cavanagh & Walker, G. Philip Wardner, and Clifford H. Walker, all of Boston, for defendant.

[1] 1. The first question is whether the effect of the transfer was to enable the defendant as a creditor "to obtain a greater percentage of his debt than any other of such creditors of the same class" would obtain under the definition of preference given


of reorganization. I find that the defend-
ant had reasonable cause to know of this
state of mind of the bankrupt.
is true that it cannot be said that an actual
intent to give a preference existed as such
in Graves' mind, yet the facts which do
exist here are plainly what the law regards
as the equivalent thereof."

defendant's exceptions 2, 3, 4 and 5 must be overruled. The events here in controversy occurred before the enactment of Act U. S. June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1507), which expressly makes immaterial the intent of the bankrupt. See Hewitt v. Boston Straw Board Co., 214 Mass. 260, 101 N. E. 424.

It is not necessary to decide whether un- | bative force, even though the buoyant hopeder section 60 of the Bankruptcy Act an ac- fulness of the particular individual may be so tual intent on the part of the debtor to pre- great as to prevent him from having a set-. fer, as well as reasonable cause to believe tled and clear-cut purpose to prefer one credthat a preference was intended on the part of itor over others. This principle seems to the creditor, is necessary to constitute a pref- have been recognized in Hardy v. Gray, 144 erence, as was held in Hardy v. Gray, 144 Fed. 922, at page 927, 75 C. C. A. 562, at Fed. 922, 75 C. C. A. 562, and by other deci- page 567, where it was said that the credsions of Circuit Courts of Appeal (First Na- itor could not have reason to believe that a tional Bank v. Holt, 155 Fed. 100, 84 C. C. preference was intended "unless, in fact, a A. 16; Curtiss v. Kingman, 159 Fed. 880, preference was actually intended on the part 87 C. C. A. 60; Tumlin v. Bryan, 165 Fed. of the debtor, or unless there existed what 166, 91 C. C. A. 200, 202, 21 L. R. A. [N. S.] the law regards as the equivalent thereof." 960; Kimmerle v. Farr, 189 Fed. 295, 111 The equivalent of actual intent on the part C. C. A. 27; In re Klein, 197 Fed. 241, 116 of the debtor to make a preference, which C. C. A. 603, 612), or whether the intent of according to the view of the court in Hardy the debtor is immaterial, as was held in V. Gray, is required by the Bankruptcy Act, Benedict v. Deshel, 177 N. Y. 1, 68 N. E. 999, seems susceptible only of the meaning that Parker v. Black (D. C.) 143 Fed. 560, affirm- circumstances may exist which render proof ed on opinion below in 151 Fed. 18, 80 C. C. of a positive and deliberate design to prefer However that A. 484, Gabriel v. Tonner, 138 Cal. 63, 70 immaterial or unnecessary. Pac. 1021, and Alexander v. Redmond, 180 may be, the language quoted from Western Fed. 92, 103 C. C. A. 446, 449, following Tie & Timber Co. v. Brown, supra, seems to strong intimations to that effect in Wilson us decisive, and being by the court of last Bros. v. Nelson, 183 U. S. 191, 196, 22 Sup. resort as to the meaning of the bankruptcy Ct. 74, 46 L. Ed. 147, and Pirie v. Chicago act must be accepted as final. In the light Title & Trust Co., 182 U. S. 438, 446, 21 of this principle, it is firmly established unTitle & Trust Co., 182 U. S. 438, 446, 21 der the findings of the master that a preferSup. Ct. 906, 45 L. Ed. 1171, because it ap-ence existed under the bankruptcy act. The pears from the report of the master that, whichever of those views be sound, the provisions of section 60 were violated, and a preference was created from the conduct of the bankrupt and the defendant in December, 1907, which we have outlined. It was said in Western Tie & Timber Co. v. Brown, 196 U. S. 502, at page 508, 25 Sup. Ct. 339, at page 341 (49 L. Ed. 571): "If the inevitable [3] 3. The master erred in ruling that the result of the transaction would have been to defendant had a right to surrender a part of create such a preference, then the law would the property obtained by the preference and conclusively impute to * [the debtor] might absolve itself to the extent of the the intention to bring about the result neces-part returned from liability to the trustee of sarily arising from the nature of the act the bankrupt in this suit. Whatever may be which he did." To the same effect are Kim- the rule where the preferred creditor offers merle v. Farr, 189 Fed. 295, 111 C. C. A. 27, to surrender in specie his entire preference, 32, First National Bank v. Abbott, 165 Fed. we are of opinion that he is not permitted to 852, 91 C. C. A. 538, and our own decisions surrender a part in partial reduction of the in Atherton v. Emerson, 199 Mass. 199, 211, damages sustained by the estate of the bank85 N. E. 530; Brown v. Pelonsky, 210 Mass. rupt. There is strong ground for the argu502, 505, 96 N. E. 1102. Categorical affirma- ment that the right of election rests with the tive evidence of intent to prefer is difficult trustee in bankruptcy to determine whether to obtain. Where the position of the officer or not he will accept a return of all the propof the bankrupt corporation, through whom erty transferred as a preference or demand it is alleged that the preference was made, damages. Collier on Bankruptcy (9th Ed.) was such that it was his duty to know the p. 827. This is the rule which exists in acbankrupt's financial condition, and where his tions of trover. Gibbs v. Chase, 10 Mass. conduct indicates a thorough knowledge of its 125; Greenfield Bank v. Leavitt, 17 Pick. embarrassment and general business condi- 1, 28 Am. Dec. 268; Livermore v. Northrup, tions, and where a conveyance of property is 44 N. Y. 107. Keppel v. Tiffin Savings Bank, made to a creditor not in the ordinary course 197 U. S. 357, 25 Sup. Ct. 443, 49 L. Ed. 790, of business, but under extraordinary con- affords no support for the proposition that ditions which render imperative the result a preferred creditor may reduce his damages that other creditors shall be hindered, delayed or prevented in the payment of their claims, the inference of an intent on the part of the debtor to prefer becomes inevitable. The inference follows as matter of


by partial return of the property given him as a preference.

[4] 4. Interest should be allowed from the date of the filing of the bill. There is no evidence that there was any demand by the

damages in place thereof, prior to the bringing of the bill. A preference was valid at common law, and is not rendered tortious by the Bankruptcy Act, nor is it penalized in any other way than is expressly pointed out in that act. Under these circumstances the general rule that interest is allowable only from date of the demand or institution of the suit should prevail. Soule v. Soule, 157 Mass. 451, 32 N. E. 663; Kaufman v. Tredway, 195 U. S. 271, 25 Sup. Ct. 33, 49 L. Ed. 190; Alsop v. Conway, 188 Fed. 568, 579, 110 C. C. A. 366, 377.

The result is that the only error disclosed relates to the second paragraph of the final decree authorizing the defendant to diminish damages by a partial return of the merchandise received in preference. The decree is reversed for the purpose of striking out this paragraph of the decree, and when so amended should be affirmed.

So ordered.

(214 Mass. 520)

THOMPSON et al. v. PEW et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)


At common law, if a legatee dies after the making of a will and before the death of the testator, the legacy lapses.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1997-2000; Dec. Dig. § 775.*] 2. WILLS (§ 91*)-NATURE OF "POWER OF APPOINTMENT"-"WILL."

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The distinction between a "will" and a "power of appointment" is that a will concerns the estate of the testator, while an appointment under a power concerns that of the donor of the power.

Chas. E. Shattuck, Jr., of Boston, pro se. Wm. A. Pew, Jr., of Gloucester, for respondent Pew. Geo. D. Burrage, of Boston, for respondents Thompson and others.

HAMMOND, J. Under her husband's will Mrs. Cooke took a life estate in the residue of his property, "with full power to dispose of the whole by will." Intending to exercise this power she made a will, in the thirteenth clause of which she under the power bequeathed $10,000 to her brother William R. Huntington, who bore no relation to her husband except that of brother-in-law. He died before her, leaving as his only heirs four children, all of whom are still living. The object of this petition is to ascertain to whom this $10,000 shall be paid.

There are three contentions made by the respondents respectively as follows: First, that it goes to the four children of William R. Huntington; second, that it goes to the residuary legatees named in the forty-third item of the will; and third, that it goes to Alice H. Pew under the will of Josiah H. Cooke, the donor of the power.

[1-3] In logical sequence the first question is whether the legacy goes to the children of William R. Huntington. The general rule of common law is that if a legatee dies after the making of a will and before the death of Ballard v. the testator the legacy lapses.

Ballard, 18 Pick. 41, 43. And it is conceded that the same rule would apply in case of the death of an appointee in a will before that of the appointor. But to this rule there long has been an exception, the present expression of which appears in R. L. c. 135, § 21, as follows: "If a devise or legacy is

[Ed. Note. For other cases, see Wills, Cent. made to a child or other relation of the Dig. 220; Dec. Dig. § 91.*

For other definitions, see Words and Phrases, vol. 6, p. 5480; vol. 8, pp. 7463-7468.] 3. WILLS (§ 552*)-LEGACIES-LAPSED LEG


testator, who dies before the testator, but leaves issue surviving the testator, such issue shall, unless a different disposition is made or required by the will, take the same estate Where a testator devised his property to which the person whose issue they are his wife for life, with full power to dispose of would have taken if he had survived the the residue by will, the power of appointment testator." If this statute can be applied in must be executed in conformity with the ordinary statute governing wills; the donee be- the interpretation of the thirteenth clause ing a testator pro hac vice. Therefore, al- of the will, the question must be answered though Rev. Laws, c. 135, treat principally of in the affirmative; otherwise in the negawills of the property of the testator, section tive. 21, providing that, if a devise or legacy be made to a child or other relation of the testator who dies before the testator, leaving issue, such issue shall, unless a different disposition is made, take the same estate as their ancestors would have taken, governs the disposition of a legacy given by the wife in a will made in the exercise of the power of appointment to a legatee who died before her.

R. L. c. 135, in which this section occurs, is entitled "Of Wills," and is the general chapter which inter alia declares what persons may make wills, prescribes the manner in which wills may be executed, makes provision for their safe keeping during the life of the testator, and gives certain rules of construction among which is the section above quoted. In the first section it speaks Report from Supreme Judicial Court, Suf- only of the will of a person who is disposing folk County.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1191-1197; Dec. Dig. § 552.*]

Petition by William G. Thompson and others, as executors, against Alice H. Pew and others, for instructions as to the disposition of a legacy. On report and reservation. Judgment for respondents.

of "his property real and personal," and nowhere is there any express mention of a will made in the execution of a power except in section 9, which exempts from the revocation of a will by marriage "a will made in the exercise of a power of appointment." A

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