Allegations, and proof that the trustee was requested to sue, but refused, or that a demand would have been unavailing, are a condition precedent to a suit by the beneficiaries of a mortgage given to secure bonds.

H. S. Davis and F. W. Johnson, both of Boston, for appellants. Young, Hill, Ludden & Marks, of Boston, for appellee.

SHELDON, J. The plaintiff holds some of the bonds secured by a mortgage given by the defendant corporation to the defendants Simpson and Whittemore as trustees for the bondholders. The suit is brought to enforce the alleged right of the bondholders to the money received by the corporation or its officers under certain agreements made by it first with Suessdorf and then with Nuland as

3. CORPORATIONS (§ 479*)-MORTGAGES-ACTIONS BY BONDHOLDERS-FINDING-SUFFICIENCY.

In an action by the holders of bonds secured by a mortgage, brought in their own names and not by the trustees, a finding that the trustees were negligent in taking no steps to enforce an accounting, and that they had complete confidence in the officers of the mortgagor, is not a sufficient finding to show that a demand upon the trustees to sue would have been unavailing. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]

4. CORPORATIONS (§ 331*)-DIRECTORS-LIA

held by it.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1448, 1449; Dec. Dig. § 331.*] 5. MORTGAGES (§ 205*)-RIGHTS OF MORTGAGEE-MINERAL PROPERTY.

Where mining property is mortgaged to secure bonds issued by the corporate owner, both the corporation and its lessees have the right to work the mine reasonably and properly, even though this results in its exhaustion; the rights of the parties being similar to those

of a life tenant and reversioner.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 460, 544-550; Dec. Dig. § 205.*1 6. JUDGMENT (§ 660*)-FAILURE TO APPEAL EFFECT.

A decree, even though erroneous, is final as to parties who do not appeal therefrom. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1171; Dec. Dig. § 660.*]

Appeal from Superior Court, Suffolk County.

Action by Royal Young against Nathaniel C. B. Haviland and others. From a judgment for plaintiff, part of the defendants appeal. Reversed as to those appealing.

It appeared that the directors made agreement with Suessdorf to sell the mine to him for $25,000, to be paid in installments. Suessdorf worked the mine for a time, and paid the directors $10,893.76, when he abandoned the property and paid no more. The directors then made an agreement with Nuland, | but Nuland never paid them any money. In the superior court a decree was entered for the plaintiff, and defendants appealed.

[1, 2] It is settled that such a suit ought ordinarily to be brought by the trustees, who represent all the bondholders, for whom they are trustees. But the cestuis que trust are not without remedy if the trustees will not do their duty. They may sue in their own names or any one of them may so sue in behalf of all, if this is necessary to avoid a failure of justice. O'Beirne v. Allegheny & Kinzua R. R., 151 N. Y. 372, 45 N. E. 873; Weetjen v. St. Paul & Pacific R. R., 4 Hun (N. Y.) 529, 539. Accordingly the plaintiff must show that a demand has been made upon the trustees to take action themselves, and that they have refused or neglected to do so, or else that the circumstances make it plain that such a demand would be useless. Falmouth National Bank v. Cape Cod Ship Canal Co., 166 Mass. 550, 567, 44 N. E. 617; Dillaway v. Boston Gas Light Co., 174 Mass. 80, 54 N. E. 359; General Electric Co. V. La Grande Edison Electric Co. (C. C.) 79 Fed. 27, and 87 Fed. 590, 31 C. C. A. 118; Consolidated Water Co. v. San Diego (C. C.) 89 Fed. 272. This corresponds to the rule that one or more stockholders may sue in their own names to enforce rights of the corporation, if and only if redress cannot be obtained through the corporation itself. Brewer v. Boston Theatre, 104 Mass. 378; Dunphy V. Traveler Newspaper Association, 146 Mass. 495, 16 N. E. 426; Doherty v. Mercantile Trust Co., 184 Mass. 590, 69 N. E. 335; Enos V. Church of St. John the Baptist, 187 Mass. 40, 72 N. E. 253; Von Arnim v. American Tube Works, 188 Mass. 515, 74 N. E. 680.

No demand has been made upon these trus

tees.

[3] We assume that the bill, as amended, avers circumstances enough to show that such a demand would have been unavailing. But the master has merely found that Simpson, one of the trustees, has done nothing more than to approve the contracts made by the corporation with Suessdorf and with Nuland (which does not appear to have been wrongful or even unwise action on his part), and occasionally to consult with Dunbar, the treasurer of the corporation, concerning the payment of interest on the bonds or a possible sale of the property. He had, the master found, complete confidence in Dunbar,

what the property is worth in the market for any use for which it will bring the most." "In determining damages in a case of this kind, the jury should consider not only the value of the property taken but also the effect of the taking upon that which is left; and in estimating the value of that which is taken, they may consider all the uses to which it might properly have been applied if it had not been taken. Damages are not to be awarded with reference to the peculiar situation or circumstances or plans of the owner or to the business in which he happens to be engaged, but any and all the uses to which that land, considered as property, may profitably be applied, whether contemplated by the owner or not, may well be taken into account by the jury."

He also ruled that the jury, in determining the value of the easement, might take into consideration the adaptability of the land for cemetery purposes.

The ruling and instructions were correct and in accordance with well-established principles as set forth by this court. Conness v. Com., 184 Mass. 541, 542, 69 N. E. 341; Maynard v. Northampton, 157 Mass. 218, 219, 31 N. E. 1062; Smith v. Com., 210 Mass. 259, 96 N. E. 666, Ann. Cas. 1912C, 1236.

[2] The respondent's argument that the amount found by the jury was excessive might properly have been addressed to the trial court on a motion for a new trial, but is not pertinent to the question before us. In accordance with the report, judgment is to be entered for the petitioner for $3,is to be entered for the petitioner for $3,

857.35.

So ordered.

(215 Mass. 294)

RUGG, C. J. This is an action to recover for the death of the plaintiff's intestate while in the employ of the defendant as a freight brakeman. Just before the accident, which occurred on the afternoon of a June day, he and a fellow brakeman named Daly were charged with the duty of uncoupling two box freight cars from a switching engine and placing them on different tracks in the Cambridge freight yard. This involved also one brakeman getting on each car when it was switched, and setting the brake at the proper time. One of the cars was switched without incident. A flying switch was to be made of the remaining one. Daly was upon its top prepared to brake it when shunted by the locomotive. It was the work of Parmelee to uncouple this car. He might have done this either by turning a lever while standing on the footboard of the locomotive, a place of safety so far as appears, or by putting his foot on the lower round of the ladder of the freight car and reaching for the lever from this position. Either way would have been proper, although done while the locomotive and car were in motion. He was left to do this work in his own way, and chose to stand on the ladder of the freight car. This was on the side and not on the end of the car. While standing thus he was caught between the car he was on and a coal car on the next track, so near that there was not room between the two for his body. If it had been necessary for him to ride the car in question, there can be no dispute on this record that it would have been proper for him to stand on the car. But Daly was on the car ready to ride it, so there was no occasion for Parmelee to go on the car. But there is nothing to show whether Parmelee

In an action for the death of a freight brakeman by being caught and crushed between a car and another car on another track, evidence held to make it a jury question whether decedent was guilty of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

ly requires the conclusion as matter of law that he was bound to know that Daly was in position to perform this duty.

The evidence varied as to the distance between the car on which Parmelee was and the coal car, from six inches to a foot or more. It does not appear that Parmelee had anything to do with placing the coal car or knew or ought to have known from previous observations its proximity to the track on which he was working. The degree of intentness with which he attended to the work in hand would to that extent divert his thought from objects on other tracks. Although the case is close on this point, we think his due care was for the jury.

Judgment for the plaintiff for $3,000.

(215 Mass. 349)

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

1. COMMERCE (§ 60*)-INTERSTATE COMMERCE -STATUTORY REGULATIONS.

St. 1911, c. 397, providing that a barrel of sweet potatoes shall weigh 150 pounds, does not directly or indirectly affect interstate commerce in its operation, since it does not prohibit selling in the original package or the selling by weight, but merely requires that when the sale is by barrel it shall weigh 150 pounds.

[Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. § 60.*] 2. COMMERCE (§ 10*) REGULATION

OF WEIGHTS-AUTHORITY OF STATE. The state Legislature may enact statutes as to the weight in avoirdupois of potatoes, grains, and other articles commonly sold by dry measure; Congress not having legislated under its constitutional authority to fix the standard of weights and measures. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 8; Dec. Dig. § 10.*] Exceptions from Superior Court, Suffolk County; John F. Brown, Judge.

Hyman Gussman was charged with illegally selling sweet potatoes, and excepts to a finding of guilty. Exceptions overruled.

A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth. Jos. S. Spencer, of Boston, for defendant.

RUGG, C. J. This complaint charges that the defendant sold as and for a barrel of sweet potatoes a quantity much less than 150 pounds, the standard weight therefor established by St. 1911, c. 397. The agreed facts are that the defendant bought two hundred barrels of sweet potatoes in the state of Maryland, which were shipped to him at Boston in interstate commerce. Just as a team loaded with some of these barrels on its way from the freight station had reached the defendant's place of business, he sold from it a single barrel in the same condition in which it had come from Maryland, the contents of which weighed 129 pounds.

re

out hindrance. The effect of our statute is that when such goods are sold by the barrel that shall mean a certain weight. No question as to freedom of interstate commerce is raised on this record. It is an ancient and perfectly well settled branch of the legislative power of the state to enact statutes as to the weight in avoirdupois of potatoes, grains and other articles commonly bought and sold by dry measure.

[2] Congress has not undertaken to cover this subject under its authority "to fix the standard of weights and measures." Hence it is not necessary to discuss the limits of its power in that direction. The field is left open in this regard to the several states.

There is no discrimination in this statute against goods brought here from another state. The extent of this statute is that it

defines the meaning in weight of the term "barrel," and imposes a penalty upon all who sell under that description less than the required number of pounds. The statute is simply an attempt to protect the public against fraud or cheating in the sale of these articles and to insure to all like measure when buying sweet potatoes by the barrel. This is well within the power of the Legislature and violates no provision of the state or federal Constitution. Exceptions overruled.

(215 Mass. 32) BOHAKER v. TRAVELERS' INS: CO. OF HARTFORD, CONN.

(Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)

1. INSURANCE (§ 668*)-ACCIDENT INSURANCE -"ACCIDENTAL MEANS."

Insured, in an accident policy insuring against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means, occupied, while delirious by reason of typhoid fever, a room with a single window, covered by a screen and with a sill 28 inches above the floor. Along the outside of the building, slightly below the window, was a balcony 5 feet wide, with a railing, about 30 feet above the stony ground beneath. He was left alone momentarily on an August evening, and was found on the ground under the room unconscious, with severe injuries which probably would cause death, though he had not been suffering from typhoid. Held, that the court could not rule as a matter of law that there could be no recovery on the policy, for the term "accidental means" was used in its common significance of happening unexpectedly, without intention or design, since it might be found that insured, in an effort to reach fresh air, went to the balcony outside the window, and there, without premeditation or delirium, but only through weakness, lost his balance and fell over.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. §

668.*