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the division of the damages between the iessor and the lessee. Proprietors of Locks & Canals v. Nashua & Lowell R. R., 10 Cush. 385, 387; Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50, 72 N. E. 338. As was said by Wells, J., in Edmands v. Boston, 108 Mass. 535, 547, these questions "are important only as between the several petitioners."

[6-8] 3. The judge rightly ruled that the measure of damages was not what it would cost to buy land to construct a way, or the cost of building a way out of the petitioner's premises. That was a circumstance to be considered; but it was not as matter of law the measure of the damages. This is settled by the former decisions of this case. 202 Mass. 585, 599, 89 N. E. 118 et seq.; 209 Mass. 298, 314, 315, 95 N. E. 887. The instructions as to this point and as to the respondent's second request were adequate and correct. The judge ruled also that the petitioner, being a foreign corporation, was not an inhabitant of Attleborough, and had no right to apply to the selectmen of that town to lay out a way under the provisions of R. L. c. 48, §§ 65, 74. The respondent contends that this ruling was erroneous. If this ruling had stood alone, it may be that there would have been some difficulty in sustaining it. But that is not the case. The judge immediately added that the petitioner could have applied to the county commissioners, and that it would be for those commissioners to pass upon the application. Whether this was right or wrong, the defendant cannot complain of it. And the judge fairly left it to the jury to say how far the value of the property and the amount of the damage to be assessed was affected by the possibility of such a way being laid out and constructed. The respondent was not aggrieved by the rulings made upon this branch of the case.

what he found in the books of the petitioner could be admitted in the discretion of the judge. The petitioner had produced the books at the request of the respondent, and the respondent had examined them by its expert. They could have been put in evidence by the petitioner. Long v. Drew, 114 Mass. 77. This being so, the questions put could properly be allowed. Boston & Worcester R. R. v. Dana, 1 Gray, 83, 104; Jordan v. Osgood, 109 Mass. 457, 464, 12 Am. Rep. 731; Bicknell v. Mellett, 160 Mass. 328, 35 N. E. 1130.

[12] 7. We cannot say that the testimony about the existence or nonexistence of other factories in New England engaged in rolling, smelting and refining was either incompetent or prejudicial to the respondent.

[13] 8. The testimony as to dust and dirt coming into the factory from the causeway of the new street after that had been completed was not prejudicial to the respondent. See Hubbard v. Webster, 118 Mass. 599; Pye v. Faxon, 156 Mass. 471, 474, 31 N. E. 640; Cotton v. Boston Elev. R. R., 191 Mass. 103, 77 N. E. 698; Hyde v. Fall River, 189 Mass. 439, 75 N. E. 953, 2 L. R. A. (N. S.) 269. Testimony that dust and dirt came from the railroad after the change of grade had been made was excluded. The petitioner was not allowed to recover for injury to its business.

[14] 9. The testimony as to the insurability of the property was not incompetent. This was a circumstance that might affect its value. If the effect was a permanent one, that also might be shown. The jury were told to consider this evidence only as it might affect the market value of the property. Webber v. Eastern Railroad, 2 Metc. 147 Here, as in many of its exceptions, the respondent seems to have overlooked the fact that the first question which the jury were to decide was the amount of the whole dam age done to the property considered as one undivided estate, and that the respondent had nothing to do with the subsequent apportionment of this amount between the lessor and the lessee.

[9] 4. The respondent's ninth and tenth requests were properly refused. Rogers & Co. v. Simmons, 155 Mass. 259, 29 N. E. 580; National Fertilizer Co. v. Fall River Savings Bank, 196 Mass. 458, 82 N. E. 671, 14 L. R. A. 10. It is not necessary to discuss the re(N. S.) 561, 13 Ann. Cas. 510; Thornley v. spondent's other exceptions. None of them J. C. Walsh Co., 200 Mass. 179, 86 N. E. 355..can be sustained. The rules of damages to The petitioner had complied with the require- be applied have been sufficiently declared in ments of our statutes, not only before this the former decisions made in this case. suit was brought, but before the making of Mass. 585, 89 N. E. 118; 209 Mass. 298, 95 the decree by which its property was af- N. E. 887. We do not care to reiterate the fected. reasoning of those opinions.

[10] 5. We cannot say that the judge erred in admitting Hartwell's testimony as to the fair market value of the buildings. He was an experienced builder, and had constructed the buildings for the petitioner's original plant. That he was not acquainted with the prices paid for real estate in Attleborough was not decisive against the competence of his testimony. He testified only as to the buildings.

[15, 16] 11. The exceptions of the intervening petitioner raise the question whether the damages rightly were assessed under the provisions of R. L. c. 48, §§ 20, 21, 22, or whether the rule of division laid down in sections 17, 18 of the same chapter should have been followed. But that now is hardly an open question. It was really decided against the present contention of the intervening petitioner in the first opinion rendered in this

to be apportioned to the different parties in interest; but they cannot affect the right which either party has acquired to have the damages assessed and apportioned in the one way or the other, as would have been the case if the assessment and apportionment had actually been made, as theoretically they are made, at the very instant of the taking when the right of the owners of the different estates or interests accrued.

ton & Providence R. R., 202 Mass. 585, 597, or in the amount of the respective shares 598, 89 N. E. 118. It was held again when the case once more came before us (209 Mass. 298, 314, 95 N. E. 887, 893) that the proper course to be taken was that which was adopted at the last trial. It was there said by Loring, J., after he had shown that the lessor ought to file an intervening petition in this action: "At the trial on the lessee's petition and that intervening petition the entire damage done to the land leased to the Cornell-Andrews Company, including the buildings and the fixed machinery put in them by the lessee, must be determined and set forth in the verdict. Then the amount of this entire damage * must be apportioned between the lessor and lessee." The rights of the lessor and the lessee as between themselves depend of course upon their agreements as shown by the lease. That was not a bare lease of the land. It gave to the petitioner rights of way outside the leased premises, which rights apparently were of value, and, it is claimed, have been practically destroyed by the taking. It was contemplated that the lessee should erect buildings and install machinery; and it did

[17] 12. Intervening petitioner has argued also that the lessee had no right to remove the buildings and fixed machinery from the leased land, that they became when erected and installed the absolute property of the lessor. But this is not open upon his exceptions. The judge expressly ruled at the request, of the intervening petitioner, that "with respect to the damage to the use and occupation of the land, including the buildings and fixed machinery, the lessor Watson is entitled to all the damage for the period subsequent to the unexpired term of the lease."

That included everything asked for by the intervening petitioner with reference to this part of the case. He did not ask for a ruling that there never had been a right of removal of the buildings and fixed machinery, and did not except to the rulings made upon this question. As there must be a new trial, we add that so far as his present contentions go further than the rulings that were made at his request, we regard the previous decisions made in this case as decisive against him.

13. No error is shown by any of the other exceptions alleged by the intervening peti

tioner.

As the petitions must be tried again, we have no need to consider the questions raised by the exceptions to the judge's conditional

order for a new trial.
Exceptions sustained.

(215 Mass. 229)

LURIE v. PINANSKI.

It had a right to remove these trade fixtures, or some of them. This it has not done; but one of its complaints, one of the grounds upon which it claims damages, is the injury to the value of the property which it had a right to remove, an injury which it claims was so great as to be tantamount to a destruction of that value; and it is for the jury to pass upon the validity of this claim and to determine what damages, if any, should be allowed therefor. The case comes within the doctrine of Edmands v. Boston, 108 Mass. 535, and Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 72 N. E. 338. The remarks in Willard v. Boston, 149 Mass. 176, 178, 21 N. E. 298, and Galeano v. Boston, 195 Mass. 64, 67, 80 N. E. 579, that the question is to be determined by the condition of the title as shown at the trial, refer to the condition of the title at the time of the bringing of the petition. It is the condition at that time which fixes the rights of the parties, and the 1. EQUITY ($ 65*)-MAXIMS-CLEAN HANDS. Upon a bill in equity for an accounting in proof of which at the trial enables the court respect to a partnership in relation to certain to determine what those rights are. Those leasehold interests, it appeared that the plainremarks do not mean that the question is to tiff asked the lessor, without the knowledge or be reopened at each new trial, and that the a new lease in his own name at an increased consent of defendant or the other partner, for result reached is to be varied according as rent. Held that, while a man must come into some particular estate or some one of its equity with clean hands, this does not imply incidents may have undergone a change since immediate and necessary relation to the equity a general depravity, but something having an the bringing of the petition or since the sued for, and that there was no such immeformer trial, or as some right to remove diate and necessary relation between what trade fixtures may or may not have been ex-ant's fraud and breach of trust as to make the plaintiff did or attempted to do and defendercised in the meantime or may have had principle applicable. its value increased or lessened by the effect upon those fixtures of the taking made. Such circumstances may by throwing a new light upon the old situation, cause a change in the quantum of damages to be allowed, bill

(Supreme

Judicial Court of Massachusetts.
Suffolk. June 17, 1913.)

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*] 2. FRAUDS, STATUTE OF (§ 58*)-INTERESTS The statute of frauds was no bar to a for an accounting in respect to the lease

IN REAL PROPERTY.

hold interests of a partnership, although the
defendant had procured an extension thereof
to himself alone for a term of three years.
[Ed. Note.-For other cases, see Frauds,
Statute of, Cent. Dig. §§ 90, 91; Dec. Dig.
58.*]

3. FRAUDS, STATUTE OF (§ 152*)-PLEADING
-NECESSITY.

The statute of frauds, if relied upon as a defense, must be pleaded.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 363-366, 371, 372; Dec. Dig. 152.*]

4. PARTNERSHIP (§ 96*)-FIRM PROPERTYTRUST-TRUST IN FAVOR OF PARTNER.

agreement, dated December 19, 1894, recognizing the partnership as a going concern, and providing that the defendant should give bond to the other two members of the firm, and collect all rents accruing to the firm until all its existing liabilities should be paid, when the management of the various properties was again to be divided among the three.

"In December, 1895, the plaintiff once more took charge of the Brooks estate, collected the rents and paid the charges until December 1, 1902. In the meantime all other part

Where plaintiff and defendant were partnership property appears to have been disners in respect to certain leasehold interests, the defendant stood in a fiduciary relation to the plaintiff, and could not secretly take a renewal of the lease for his own benefit, but the renewal option was impressed with a trust in favor of the plaintiff.

[Ed. Note. For other cases, see Partnership, Cent. Dig. § 144; Dec. Dig. § 96.*] 5. PARTNERSHIP (§ 315*)-INDIVIDUAL TRANSACTIONS-FRAUD AS TO COPARTNERS.

The

posed of, and the defendant had severed his connection with the other two except in relation to said Brooks estate. The plaintiff and Silverman continued in business together two or three years longer and then had trouble and separated. So far as the Brooks estate was concerned, until the termination of said lease, the plaintiff, defendant and Silverman continued to hold and manage it as partners, sharing all losses and expenses, and dividing the net profits equally. plaintiff, after managing said estate for about seven years, had in his hands December 1, 1902, the sum of $300, which he insisted upon keeping. The defendant and Silverman claimed this money was the property of the firm, and should either be divided among the three equally or be applied to the payment of taxes assessed upon the Appeal from Superior Court, Suffolk Coun- leased premises for the year 1902. It was ty. finally agreed that the plaintiff should retain ás his own the $300 which he was holding; that the defendant should take charge of said Brooks estate and collect the rents for the benefit of himself and Silverman un

Where a part of the consideration for the option of renewing a lease was furnished by plaintiff, a partner, under an understanding between the lessor and himself and his partners that the partnership should have an extension of the lease, the act of another partner in taking the option in his own name and attempting to appropriate the profits thereof to his own use, in addition to being a breach of trust, constituted a fraud upon plaintiff, entitling him to an accounting.

[Ed. Note. For other cases, see Partnership, Cent. Dig. § 731; Dec. Dig. § 315.*]

Action by Marcus S. Lurie against Nathan Pinanski. Decree for plaintiff, and defendant appeals. Affirmed.

The following is the master's report: “This is a suit brought in equity to secure by an accounting the payment of certain sums of money to which the plaintiff says he is entitled on account of his connection with the defendant as a partner.

"The plaintiff, defendant and one Silverman, as partners, engaged in the real estate business in Boston in 1890 or 1891. They took leases of several parcels of real estate and acquired the fee in others, the management of the several properties being divided among them by mutual agreement. In October, 1893, they took from one, Brooks, a lease of certain premises on Prince and Salem streets, Boston, which will be designated in this report as the Brooks estate. This lease was for a term of ten years from November 1, 1893, with an extension of three years, terminating November 1, 1906, and for a short time the plaintiff had charge of the premises thereby demised. The three partners lost confidence in one another and at some time which was not definitely fixed by the evidence their general real estate business was disposed of.

"A paper which had been referred to by the defendant as a formal dissolution of the partnership, when produced, proved to be an

til each should have an equal sum, after which the net rents should again be divided equally among the three lessees, and this arrangement was carried out, the defendant retaining the management of said premises while the lease was in force.

"In the course of ten months after December 1, 1902, he had collected for himself and Silverman the same amount which the plaintiff had retained and thereafter he paid the plaintiff his equal share of the net rents.

"It was customary for the plaintiff and Silverman to meet the defendant at his office to examine the accounts, to consult about the management of the property, and to receive their respective shares of the net rents. Early in 1904 one Cohen was injured on the premises, and brought suit against the lessor, Brooks. Said lease contained the provision that the lessees should save the lessor harmless from all damages on account of injuries sustained on the premises, and his attorney at once called upon them to defend the suit.

"After some negotiations, a settlement was arranged between Cohen and the insurance liability company which had insured the lessees. Cohen agreed to settle for $600. The liability insurance company offered to

pay one-half of this sum and called upon the lessor to advance an equal amount, but the latter through his attorney notified the lessees that this liability was wholly theirs, and orally and by letters addressed to each of them individually urged them to settle said suit by paying $100 apiece, and these efforts were continued during a period of several months.

"The matter of a renewal or extension of said lease was discussed, and through his attorney the lessor made known to the lessees that if they would settle the Cohen suit, paying each his proportionate share, he would grant them a new lease of the premises upon the same terms or would extend the old lease for a term of years. This proposal was made repeatedly by said attorney to each of the lessees both orally and by letters. The defendant from the outset had shown a willingness to pay his share of the Cohen damages, while the plaintiff and Silverman for some time objected on the ground that they were insured, but finally the lessees informed said attorney that they would settle the Cohen matter in the manner proposed by paying $100 apiece, upon the condition that they should have an extension of their lease. The plaintiff and Silverman directed the defendant to take their respective shares of said damages out of the net rents of the Brooks estate. On or about January 30, 1905, the defendant for the purpose of settling the Cohen suit paid the lessor $300 by giving him his check for $100 and four notes of $50 each signed by him personally, and received from the lessor either directly the same day, or the next day by mail, a paper of which the following is a copy:

66

"Cambridge, Jan. 30th, 1905."Received of Mr. Nathan Pinanski the sum of $300, in cash and notes with which to settle damage claim now pending in court against estate cor. Salem and Prince Sts., Boston, which estate having been under lease from Sumner J. Brooks to Messrs. Pinanski, Silverman and Lurie, for a term of years and which will expire Nov. 1st, 1906. ""In consequence of Mr. Nathan Pinanski having paid me the sum of $300, I, Sumner J. Brooks, do hereby promise to lease the above named estate to the said Nathan Pinanski individually for the term of five years from Nov. 1st, 1906, or on the expiration of the before named lease. The lease to Mr. Nathan Pinanski shall be worded the same and in fact be an exact copy of the lease given to Messrs. Pinanski, Silverman and Lurie, except wherein some particular change may be mutually desired. Sumner J. Brooks.'

liability of the three lessees in the Cohen matter, and he notified the plaintiff and Silverman of his intention to do this, and it was done with their full knowledge and consent. After November 1, 1906, assuming that he alone was interested as lessee in said Brooks estate, the defendant kept no account of receipts or disbursements in connection therewith, and applied all of the net rents to his own uses.

"The lessor died February 17, 1907, and in the summer of 1907 his son, the owner of said Brooks estate, offered the same for sale at the price of $42,000, told the defendant he could have it at that price, and also notified other real estate brokers. In August, 1907, the plaintiff procured a customer for the estate at the price asked, and received as his share of the commission on such sale $310. The defendant thereupon asserted his rights under the option for a new lease given him by the lessor January 30, 1905, as above set forth, and to satisfy his claims and to procure the surrender of said option the owner of said Brooks estate then paid him $2,000. Shortly afterwards the defendant paid Silverman $600 to satisfy all claims which the latter had against him on account of said Brooks estate. Later the plaintiff demanded an accounting and settlement with the defendant, and, having failed in an attempt to have their differences submitted to arbitration, began the present proceedings.

"The foregoing I find as a statement of facts upon all the evidence in the case. "The plaintiff contended that said Brooks estate was leased to the defendant, Silverman, and himself as partners, and that as partners they continued to hold it while the lease remained in force; that nearly two years before its termination, the defendant, one of the firm, procured from the lessor an option for a new five years' lease of the same premises in his own name; that the consideration for this option was the $300 paid to the lessor to settle the Cohen suit; that although this sum was paid in the first instance by the defendant from his own funds, this was done with the express understanding between the three, that he should advance the whole sum and later deduct from the net rents of the Brooks estate the proportionate shares thereof which were to be paid by the plaintiff and Silverman; that this arrangement was actually carried out, so that onethird of the consideration for said option was paid by the plaintiff and one-third by Silverman; that said option was for the benefit of the three lessees, who were holding the premises as partners when it was ob"The defendant continued dividing the net tained, and who paid the consideration for rents of the Brooks estate with the plaintiff it in equal shares; that for these reasons he, and Silverman monthly until October 15, the plaintiff, was entitled to one-third of the 1905. All rents accruing after that date un-net rents which accrued under said option til the termination of said lease November from November 1, 1906, to the date of the sale 1, 1906, he retained in his own hands for the purpose of reimbursing himself for the $300

of the premises in August, 1907, also to onethird of the $2,000 paid the defendant by the

der of said option; that the defendant had | details of the transaction; that in the meanrecognized these rights by settling with Sil- time the owner had sold said estate through verman for his share both of said net rents another broker; that Silverman and Bornand of the sum paid for the surrender of the stein thereupon demanded from him their option; that during the period from October commission on account of the purchaser they 15, 1905, to November 1, 1906, the defendant had procured, threatening to bring suit to collected from the net rents of the Brooks enforce their claim, and that to satisfy them estate and retained in his own hands a sum he paid Silverman $600. much larger than the $300 required to reimburse himself for the amount he had advanced from his own funds to settle the Cohen suit, and that one-third of any surplus belonged to the plaintiff.

"The defendant claimed that the partnership between the plaintiff, Silverman and himself was dissolved and all the partnership property except the Brooks estate was disposed of prior to December 1, 1902; that after such dissolution the Brooks estate was still held by them but not as partners; that when the plaintiff gave up the management of that estate December 1, 1902, he was largely indebted to the other two on account of rents which he had collected and appropriated to his own use; that he, the defendant, refused to take a renewal of the Brooks lease in connection with the other two lessees; that he paid the $300 to the lessor to settle the Cohen suit from his own funds, and obtained from the lessor by mail without any solicitation on his part the option for the new lease in his own name, and that having thus obtained it he was properly holding it for his own sole benefit; that after November 1, 1906, when the original lease terminated, the rents of the Brooks estate belonged exclusively to him, and that he paid $600 to Silverman in August, 1907, not to satisfy the latter for his share of the net rents of said estate after November 1, 1906, and of the $2,000 paid him by the owner for the surrender of the option, but as commission due for the sale of the Brooks estate to a purchaser alleged to have been procured through the agency of Silverman by a broker named Bornstein. He admitted that from October 15, 1905, until the termination of the lease November 1, 1906, he kept all the net rents of the Brooks estate, which should have been divided equally among the three, for the purpose of reimbursing himself for the $300 he paid the lessor to settle the Cohen suit; that he notified the plaintiff and Silverman that he was retaining said rents to obtain from them their proportionate shares of said payment and that he had in his hands November 1, 1906, $279.06 on this account.

"As to his payment of $600 to Silverman in August, 1907, the defendant testified in substance that he told him the owner of the Brooks estate had offered it to him for $42,000, and if he, Silverman, could find a purchaser at a higher price, he would divide the profits with him; that Silverman, through a broker named Bornstein, found a customer who would pay $47,000 for said estate, but that he, the defendant, had not

"Silverman testified in substance that he knew the Brooks estate was for sale and had been offered to the defendant for $42,000; that he spoke to Bornstein about it, but made no arrangement with him; that if Bornstein was engaged as broker to sell said estate this was done by the defendant himself; that he had not been informed of any customer for said estate procured by Bornstein, and that he never made claim on the defendant for a commission for himself or Bornstein on account of any sale of the Brooks estate; that some time in August, 1907, the defendant told him the owner had paid him $1,500 for the surrender of the option for a new lease, said that he would give him, Silverman, $500 on this account and $100 on account of back rents which had not been divided, and asked if this would be satisfactory, to which he replied he was satisfied, and that he then received from the defendant $600 for his own sole use.

"Bornstein was not called as a witness. There was evidence at the hearing tending to prove that during 1904, while negotiations for the settlement of the Cohen suit were in progress, the plaintiff without the knowledge or consent of the defendant or Silverman, asked the lessor for a new lease of the Brooks estate in his own name alone at an increased rent.

"There was also evidence tending to prove that the defendant and Silverman discussed a plan of obtaining a new lease of said premises for themselves, provided the latter could give the former security for the performance of his share of any obligations that might arise; that at the defendant's suggestion Silverman set out to accompany him when he called upon the lessor and settled the Cohen matter, but that in some way they became separated and the defendant proceeded alone. It appeared in evidence that the plaintiff and Silverman had been on unfriendly terms for several years until a short time previous to the hearing before the master.

"Upon the facts and findings hereinbefore set forth, and upon all the evidence in the case, and basing my conclusions upon all the evidence introduced before me, and not confining myself to such evidence, facts and findings as I have hereinbefore set forth, I find as follows:

"(1) In October, 1893, the plaintiff, defendant and Silverman, partners in a general real estate business, took a lease of the Brooks estate for the term of 13 years from November 1, 1893.

"(2) At a time not definitely fixed, but

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