The action is for a tort. The allegation of consipracy does not charge in any way the nature of the wrong. It is simply a way of alleging joint action, and if proved then the act of each conspirator within the scope of the scheme is the act of every other. The gist of the action is the tort and not the conspiracy. Boston v. Simmons, 150 Mass. 461, 23 N. E. 210, 6 L. R. A. 629, 15 Am. 3. CONTRACTS (§ 188*)-ACTION FOR BREACH-St. Rep. 230; Randall v. Hazelton, 12 Allen, PARTIES-DEFENDANT.

As against one who was not a party to the contract set out in the declaration, the [2] The things complained of are the illeplaintiff could have no action for breach of gal issue of stock and the removal of the plaintiff from the offices of director and treasurer of the corporation. So far as respects the illegal issue of stock and the consequent decrease in the value of the plaintiff's stock, the right of action is in the corporation and not in the individual stockholders. No stockholder simply as such can maintain either at law or in equity an action against the wrongdoers for his own loss. Converse v. United Shoe Machinery Co., 185 Mass. 422, 70 N. E. 444, and cases cited; Id., 209 Mass. 539,

CHANDLER & CO., Inc., v. McDONALD- contends that by the agreement it was mere

Case Reserved from Supreme Judicial rid of the plaintiff. But, however that may Court, Suffolk County.

er rights than it chose to provide for by its from the interlocutory decrees overruling the contract. demurrers. Each of the bills must be dis missed with costs. So ordered.

CO.

(215 Mass. 338)

(Supreme Judicial Court of Massachusetts. Middlesex. June 18, 1913.)

1. MASTER AND SERVANT (§ 289*)-ACTIONS— QUESTIONS FOR JURY-CONTRIBUTORY NEGLIGENCE.

The construction urged by the plaintiff would require the defendant, if it desired to sell its leasehold interest, first to find a purchaser thereof and to conclude with him a definite and complete bargain, all the terms and conditions of which should be fixed by PERRY v. DAVIS & SARGENT LUMBER agreement with him, and then to offer the premises to the plaintiff upon the same terms and conditions, and to wait 10 days for the plaintiff to make up its mind, before it could be known whether the concluded agreement between the defendant and the proposed purWhere there was evidence that both of chaser could be carried into execution. A the paths which an employé could use in going merely tentative or provisional agreement not from one point in the employer's shop to anbinding upon a proposed purchaser would other were somewhat obstructed, it could not not be enough, if we adopt the full conten-be ruled as a matter of law that he was negligent in selecting one path rather than the tion of the plaintiff; for the terms and con- other. ditions could not be said to have been fixed if they had not been made binding upon both the parties to the prospective sale. But it is manifest that such an agreement, depending for the vendor's ability to carry it out upon the unforeseeable contingency of the plaintiff's choice, would at best be difficult of conclusion, and very likely would be practically impossible. We cannot suppose that the parties intended that the defendant should be thus tightly fettered in making a 3. MASTER AND SERVANT (§ 288*)-ACTIONSsale which was at least contemplated as pos- QUESTIONS FOR ASSUMPTION OF sible, unless their language shows this intenRISK. tion. No doubt the defendant might have made such an agreement; but this is not lightly to be presumed.

The defendant did not even agree, as in Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555, a case much relied on by the plaintiff, to sell to the plaintiff for such price as any other person might offer, a much less onerous stipulation than what is insisted upon here. That decision does not help the plaintiff. The case at bar more nearly resembles Folsom v. Harr, 218 Ill. 369, 75 N. E. 987, 109 Am. St. Rep. 297, though the facts are not exactly the same as were there presented.

According to the findings of the single justice, the defendant, having decided to sell, notified the plaintiff thereof, and soon afterwards made a written proposition of sale to

the plaintiff, upon terms therein stated. This proposition the defendant made in good faith for the purpose of complying with the terms of the "option agreement," and both parties so understood it. The plaintiff had a full opportunity to buy, but declined to do so at the price offered by the defendant. These findings were fully warranted by the evidence reported. It follows that the defendant has performed its agreement and the plaintiff has no ground of complaint.

[2] The plaintiff acquired by the "option agreement" no legal or equitable estate in the leasehold. Emerson v. Somerville, 166 Mass. 115, 44 N. E. 110.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

2. MASTER AND SERVANT (§ 203*)-LIABILITY

FOR INJURIES-ASSUMPTION OF RISK.

Where a dangerous condition in an employer's shop arose subsequent to an employe's employment, there was no contractual assumption by him of the risk of injury therefrom. Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*]

[Ed. Note.-For other cases, see Master and

JURY

Whether an employé understood the nature and extent of a danger, so as to assume the risk of an injury therefrom, was a question

of fact.

If a board, which gave way and precipitated an employé into a cellar, was intended mereand the cellar began, and not as a railing, the ly as a warning to indicate where a floor ended employer was not negligent in failing to so secure it that it would withstand the employé's weight.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*1 5. MASTER AND SERVANT (§ 278*)-LIABILITY FOR INJURIES PLACES.

GUARDING DANGEROUS

employer's shop and a cellar was a railing, in-
If a board between a passageway in an
tended to afford some degree of support, the
jury could have found that it was insufficient
or insecure for that purpose, from evidence that
it was fastened at each end by two nails which
pulled out, allowing an employé to fall into the
cellar when his weight was thrown against it
by the rolling of stakes piled in the passage-
way and over which he was walking.
servant. Cent. Dig. $$ 954, 956-958, 960-969,
971, 972, 977; Dec. Dig. § 278.*]

[Ed. Note.-For other cases, see Master and

6. MASTER AND SERVANT (§ 286*)-ACTIONSQUESTIONS FOR JURY.

If the space in an employer's shop adjacent to a board, which gave way, permitting an employé to fall into a cellar, was a place where the employés were expected to pass and repass It is not necessary to consider the appeals constantly, it was a question for the jury

whether the board was a railing, intended to | The pile of stakes was not a permanent conafford some degree of support, or merely as a warning to indicate where the floor ended and the cellar began.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

Report from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Action by Ernest Perry against the Davis & Sargent Lumber Company. Reported from the Superior Court after a directed verdict for defendant; the terms of the report being that, if the ruling was wrong, judgment should be entered for plaintiff. Judgment for plaintiff.

Albert S. Howard and Albert J. Blazon, both of Lowell, for plaintiff. F. E. Dunbar and A. C. Spalding, both of Lowell, for de

fendant.

RUGG, C. J. This is an action of tort to recover for personal injuries received by the plaintiff while in the employ of the defendant. The plaintiff rightly was going from his place of work at a saw bench to another room in the defendant's shop. Although the evidence was conflicting, it might have been found that there were two paths, one by the main aisle of the shop obstructed by a pile of boards four or five feet high, over which he would be obliged to climb, if he went that way, and the other by a passageway adjacent to a lumber cellar constructed subsequently to the beginning of the plaintiff's employment in which was a pile of small stakes about four feet wide and a foot high extending across the passage. The plaintiff chose the latter course. As he was walking along with one hand on a board about three feet above the floor and extending between two posts, the stakes rolled under his feet and his weight bearing more heavily upon the board it gave way and he fell to the cellar receiving injuries for which he now

seeks to recover..

dition and one which the plaintiff knew as
much about as any one. The board which
gave way was three inches wide, one inch
thick and eight feet long. One end was
nailed to the side of a small post facing in-
to the room and the other end was nailed to
the side of a larger post facing toward the
lumber cellar, there being two nails to hold
It was about three feet above
each end.
the floor and the nails pulled out of the posts
and allowed the plaintiff to fall.
board was merely a warning to indicate the
place where the floor ended and the cellar
began, the defendant was not negligent. If,
however, it was a railing intended to afford
been found to be insufficient or insecure for
some degree of support, then it might have

that purpose.

If this

We incline to the view on the

whole case that whether it was a warning or a railing was a question of fact and should have been submitted to the jury. If the space adjacent to it was found to be a place where the help were expected to pass and repass constantly, it might have been reasonable to infer that this was a guard and not a mere notice.

In accordance with the terms of the report let the entry be:

Judgment for the plaintiff for $1,000.

(215 Mass. 273) of

STORER v. DOWNEY, Superintendent
Public Buildings.

(Supreme Judicial Court of Massachusetts.
Suffolk. June 18, 1913.)

1. MUNICIPAL CORPORATIONS (§ 603*)—ORDINANCES-VALIDITY-POLICE POWER.

An ordinance providing that no building shall be erected for or converted to use as a garage, unless such use is previously authorized by the board of aldermen, is a valid exercise of the police power, within Rev. Laws, c. 104, § 1, authorizing cities to regulate the use of buildings for the prevention of fire and the preservation of life.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1334; Dec. Dig. § 603.*1

NANCES-ORDERS-VETOES.

[1-3] There was evidence sufficient to war-2. MUNICIPAL CORPORATIONS (§ 107*)—ORDIrant a finding that the plaintiff was in the exercise of due care. It might have been found that each of the ways which must be traversed in order to reach the room to which he was going was somewhat obstructed. It could not have been ruled as matter of law upon the evidence that one was safer than the other. Nor could it have been ruled as a matter of law that the plaintiff assumed the risk. The dangerous condition including the nailing of the board was one which had arisen since his employment and hence there was no contractual assumption of it. Whether the plaintiff understood the nature and extent of the danger was a question of fact.

The object of St. 1907, c. 565, § 3, requiraldermen, to return the order with his objecing the mayor, vetoing an order of the board of tions in writing at length, is to require the mayor to state his reasons, so that they may be weighed and considered by the board of aldermen, on whom alone rests the duty of deciding whether the objections are sound; and the objections of the mayor to an order granting one authority to erect a garage, on the grounds that districts should be adopted, and that he is opsome policy respecting garages in residential posed to their establishment in residential districts contrary to the sentiment of abutting property owners, are sufficient, and a failure to pass the order notwithstanding the mayor's objections renders it nugatory.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 229-236; Dec. Dig. § 107.*]

[4-6] It is a close question whether there was evidence sufficient to support a finding Case Reserved from Supreme Judicial of negligence on the part of the defendant. | Court, Suffolk County.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Mandamus by Harold A. Storer against [ necessary Jeremiah F. Downey, Superintendent of Public Buildings of Cambridge, to compel respondent to issue to petitioner a permit to erect a garage. Case reserved for determination of full court. Petition dismissed. Francis J. Carney and Chas. E. Lawrence, both of Boston, for petitioner. Jas. F. Aylward, of Boston, for respondent.

RUGG, C. J. [1] This is a petition for a writ of mandamus by a landowner against the superintendent of public buildings of Cambridge. An ordinance of the city of Cambridge (passed under the authority of R. L. c. 104, § 1) provides that "no building shall be erected for or converted to use as a garage unless such use is previously authorized by the board of aldermen." This is a valid exercise of the police power. The disagreeable incidents of a garage are well known. They have been adverted to frequently in recent decisions of this court. See, for example, Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 223, 95 N. E. 216, 34 L. R. A. (N. S.) 730, Ann. Cas. 1912B, 450; Noyes v. Cushing, 209 Mass. 123, 126, 95 N. E. 83, and cases cited. Oil and gasoline, almost inevitably stored and used in them, are so highly inflammable and explosive that they may increase the danger of fire, no matter how carefully the building be constructed nor how noncombustible its materials. Although lawful and necessary buildings, they are of such character that regulation of the place of their erection and use is well within settled principles as to the police power. The ordinance in its terms differs in no essential particular from many others which have been sustained. Salem v. Maynes, 123 Mass. 372; Com. v. Hubley, 172 Mass. 58, 51 N. E. 448, 42 L. R. A. 403, 70 Am. St. Rep. 242; Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385; Worcester Board of Health v. Tupper, 210 Mass. 378, 96 N. E. 1096. The case is plainly distinguishable from Com. v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168, and Goldstein v. Conner, 212 Mass. 57, 98 N. E. 701, and the cases collected in each of these opinions, where either an innocuous matter has been made utterly dependent upon the action of a public board or a possibly harmful business upon that of a subordinate officer, or the ordinance has been broader than the statute authorized. Here the public board itself is empowered to deal with a subject which may endanger the safety of persons and property, and the ordinance does not exceed the scope of the statute.

[2] The petitioner duly presented a petition to the board of aldermen, which passed an order granting him authority to erect the garage. The mayor vetoed the order, giving as his reason "not because it appears to be

*

* for the prevention of fire

and the preservation of life," but because he thought some policy respecting garages in residential districts should be adopted by the city and because he was opposed to their establishment in residential districts contrary to the sentiment of abutting property owners. It is contended that a veto for such reasons is a nullity and that the order of the board of aldermen is effective notwithstanding the attempted veto. This contention cannot be sustained. The mayor stated his objections in writing at some length as required by St. 1907, c. 565, § 3. Hence the difficulty which was held fatal in Mayor of Lowell v. Dadman, 191 Mass. 370, 77 N. E. 717, does not exist. There is no requirement that his objections shall be based upon any defect in law in the order, nor that they shall be such as may commend themselves to any outside tribunal. The object of the statute is that the mayor shall state his reasons in order that they may be weighed and considered by the body passing the order, upon whom alone rests the duty of deciding whether the objections urged by the executive are sound. The objections stated by the mayor in the present case are not whimsical or absurd, but obviously grounded upon what seemed to him weighty considerations of municipal policy. They were such as might rightly be considered by the board of aldermen, and their failure to pass the order, the mayor's objections to the contrary notwithstanding, rendered the order nugatory.

Petition dismissed without costs.

(215 Mass. 224)
GIACCOBE v. BOSTON ELEVATED RY.
(Supreme Judicial Court of Massachusetts.
Suffolk. June 17, 1913.)

1. NEGLIGENCE (§ 85*)-CONTRIBUTORY NEG-
LIGENCE-CARE REQUIRED OF CHILD.
cise only such care to avoid injury as would
A boy seven years old is required to exer-
naturally be expected from one of his age and
experience.

Cent. Dig. 88 121-128; Dec. Dig. § 85.*]
[Ed. Note. For other cases, see Negligence,
Cent. Dig. §§ 121-128; Dec. Dig. § 85.*]
2. STREET RAILROADS (§ 114*)—INJURIES TO
PERSON ON TRACK-CONTRIBUTORY NEGLI-
GENCE-SUFFICIENCY OF EVIDENCE.

In an action for personal injuries received by a boy seven years of age while he was ficient to warrant a finding that the plaintiff crossing a street car track, evidence held sufwas not negligent.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*1

Report from Superior Court, Suffolk County; Nathan D. Pratt, Judge.

Tort by Andrew Giaccobe against the Bostion Elevated Railway for personal injuries to plaintiff, who was struck by a street car while crossing the track. Judgment for the defendant at the close of the evidence in the superior court, and case reported to the