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of a satisfaction thereof, does not estop the em- [is a bar to the present action, and, if not, ployé from maintaining an action against the whether the plaintiff has a right to prove insurer for the fraud. his actual damages.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1148; Dec. Dig. § 632.*] 2. JUDGMENT (§ 711*) - CONCLUSIVENESS THIRD PERSONS-AMOUNT OF LIABILITY. An infant employé, suing an insurer of the employer against liability in favor of the employé for the fraud of the insurer in instigating an action by the employé against the employer, and causing a judgment for a small amount tered. to be entered therein, for the purpose of interposing such judgment as a bar to liability on its part is not precluded by such judgment from showing the actual damages sustained by such

fraud.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1232; Dec. Dig. § 711.*]

Report from Superior Court, Essex County; Loranus E. Hitchcock, Judge.

[1] There is no doubt that a judgment rendered by a court of competent jurisdiction is conclusive between the parties and all who are in privity with them. But the defendant was neither a party nor a privy to the action in which the judgment was enIt is not binding against this defendant nor in its favor. Until reversed or set aside, although procured without the knowledge of the plaintiff and by means of a mere fraud practiced upon his father while acting as his next friend, it is binding upon the parties to it. Wallace v. Boston Elev. R. R., 194 Mass. 328, 80 N. E. 461; Finneran v. Leonard, 7 Allen, 54, 83 Am. Dec. 665;

Action in tort by Matthew J. McGillvray White v. Merritt, 7 N. Y. 352, 57 Am. Dec. against the Employers' Liability Assurance 527; Clark v. Southern Can Co., 116 Md. Corporation, Limited, for fraud and false 85, 81 Atl. 271, 36 L. R. A. (N. S.) 980. representations by which defendant secured a release to a right of action for personal injuries. The court, hearing the case without a jury, found for defendant, and reported the case to the Supreme Judicial Court. Judgment for plaintiff.

William A. Pew, Jr., of Gloucester, for plaintiff. Henry C. Sawyer and Wm. Harold Hitchcock, both of Boston, for defendant.

But it operates no estoppel upon the plaintiff in favor of the present defendant. This was declared by the court in one of the cases relied on by the defendant. Dunlap v. Glidden, 31 Me. 435, 437, 52 Am. Dec. 625. And see Old Dominion Copper Co. v. Bigelow, 203 Mass. 159, 206, 89 N. E. 193, 40 L. R. A. (N. S.) 314, et seq., and the cases collected in 23 Cyc. 120 et seq.

The plaintiff has not by his declaration or SHELDON, J. The plaintiff is a minor in the subsequent proceedings in this action 16 years old. While in the employ of the set up the former judgment as having any Cape Ann Tool Company he suffered a serious binding effect except as between himself and personal injury, for which, as we must now the tool company. He admits its validity take it, he had a right to recover damages as between himself and the tool company; from that company to the amount of $3,500. but he rightly contends that as between himThe defendant had insured that company self and this defendant it constitutes no against such a liability. By means of a gross estoppel. That differentiates this case from fraud practiced by the defendant's author- those relied on by the defendant. Engstrom ized agent, the plaintiff's father was induced V. Sherburne, 137 Mass. 153; Smith v. Abto consent to the bringing of an action in bott, 40 Me. 442; Dunlap v. Glidden, 31 Me. the plaintiff's name by his father as next 435, 52 Am. Dec. 625. In those cases, the friend against the tool company, with an plaintiff was obliged to contend that the ad damnum of $300. Such an action was judgment, of the procuring of which he combrought by one member of a firm of at- plained, was so far invalid between the partorneys, of which the other member was ties to it that the levy upon his property general counsel for the defendant, this de- for its satisfaction was a legal wrong to fendant paying therefor. The other member him; and the contrary was held, because, of that firm appeared for the tool company. as stated by Barker, J., in Engstrom v. SherIn pursuance of the same fraud, the defend- burne, 137 Mass. 153, 155, it is no legal inant through its agent secured the signature jury to one to take his property, pursuant to of the plaintiff's father to a power of at-law, "to satisfy judgments in full force torney authorizing the bringing of the action against him." In the case at bar, no such that has been mentioned, to an agreement difficulty is presented. for the entry of judgment and satisfaction This case resembles in principle an action of judgment for $200, and to a paper pur- by a client against his attorney for malfeaporting to be a release of all the minor's sance, such as was disclosed in Kelly v. Allin, rights against the tool company on account 212 Mass. 327, 99 N. E. 273. In that case, of the injury. Then in that action an entry the defendant wrongfully caused a judgment was made of judgment for the plaintiff for to be entered in the plaintiff's case, of which $200 without costs and judgment satisfied. he had the management as attorney. In the No money has been paid to the plaintiff, and present case, the defendant by fraud obtainof course none ever can be collected, on that ed control of the plaintiff's original action, judgment. and then consummated its fraud by wrongThe questions are whether that judgment fully causing a judgment to be entered there

court ordered judgment for plaintiff for $30,348.90 and interest from the date of the writ, and the case was reported to the Supreme Court. Judgment for plaintiff for the entire amount claimed.

in. In neither case could the defendant set | est. On an agreed statement of facts, the up as a defense the judgment to which he was neither party nor privy, but which he had caused to be entered for his own ends and in fraud of the rights of the plaintiff. To hold otherwise would be to allow a gross injustice to be perpetrated under the forms of law, and to say that the law was powerless to prevent its own prostitution. We do not need here to go so far as the court went in Verplanck v. Van Buren, 76 N. Y. 247.

[2] Nor is the plaintiff barred from showing the amount of his actual damages. The former judgment creates no estoppel upon him in favor of the defendant in any particular.

The following is the agreed statement of facts:

In

"Acting under the provisions of chapter 534, § 7, of the Acts of 1902, the Boston Transit Commission constructed a tunnel in the city of Boston, known as the 'Washington Street Tunnel,' for the use of electric railway trains and for other purposes. accordance with this statute the Commission, acting for the city of Boston, leased this tunnel to the Boston Elevated Railway ComAccording to the terms of the report, judg-pany, by a contract dated September 25, 1902. ment must be entered in favor of the plain- A copy of this contract is annexed and is tiff as of January 6, 1913, in the sum of made a part of this statement. $3,500.

So ordered.

(215 Mass. 41)

"Among the estates taken in fee by the city under the act referred to above, were three estates as follows:

"1. An estate at the southeast corner of Washington and Bennett streets in the city

CITY OF BOSTON v. BOSTON ELEVATED of Boston, referred to as the 'Sherburne

RY. CO.

(Supreme Judicial Court of Massachusetts.

Suffolk. May 24, 1913.)

MUNICIPAL CORPORATIONS (§ 722*)-PUBLIC
IMPROVEMENTS-STREET TUNNELS-RENTALS

-CONTRACT.

St. 1902, c. 534, provided for the use of the Washington Street Tunnel in Boston by an elevated railroad company at a specified rental. Section 7 declared that the value of the property taken for the construction of the tunnel, but no longer needed, should be deducted from the cost in ascertaining the rental. Section 10 provided that the annual rent should be 42 per cent. of the net cost of the tunnel, and defined "net cost" to include all expenditures incurred in acquisition and construction, including damages, expenses, and salary of the commission, and interest at the rate of 3% per cent. on the debt incurred in construction prior to the beginning of the use. Section 16 declared that all rents received from property taken for construction should be applied (1) to meet sinking fund requirements; (2) to meet interest on bonds; and (3) the surplus to the general revenues of the city. Held, that where the city took certain estates for the completion of the tunnel and approaches, parts of which thereafter became unnecessary for tunnel purposes, and were leased by the city to others, the net cost of the tunnel for the purpose of ascertaining the rent should be ascertained as of the time when the use of the tunnel began, and that the deduction for surplus property taken should be made as of that time, since in no other way could the city receive interest on the cost of the tunnel during construction, and the rents received from such surplus land be contributed to its sinking fund and other specified

uses.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1528; Dec. Dig. § 722.*] Report from Superior Court, Suffolk County; Richard W. Irwin, Judge.

Action by the City of Boston against the Boston Elevated Railway Company to recover $35,038.69 for rentals of the Washington Street Tunnel in Boston, and accrued inter

property.' This estate consisted of land covered by a 6-story building, with a basement, the area of the building being 11,365 square feet.

"2. An estate on La Grange street numbered 14 and 18 on said street, near the corner. of Washington street. ner of Washington street. This lot was 2,877 square feet in area, and the building covering the lot was 3 stories in height, with basement.

"3. An estate at the southwest corner of Winter and Washington streets, 1,955 square feet in area. The building on this lot was 52 stories in height, with a basement.

"The Transit Commission, acting under the authority of the act above named, agreed with the owners of the said estates upon the amount of damages sustained by them respectively, by reason of said takings, and made payments to them as follows: Sherburne property, February 23, 1905.... $375,000 00 Winter street property, June 11, 1908..... 630,000 00 La Grange street property Sep$24,000 34,500

tember 28, 1905....

November 16, 1907.

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"The above amounts were paid by the city of Boston from the proceeds of bonds issued on or before the dates above specified, under the terms of said act.

"Only a portion of each of said estates was permanently used for the construction of the tunnel. The whole of each of said estates was taken by the Commission because the Commission deemed such taking reasonably necessary for the proper and economical accomplishment of the work. The defendant agrees that under, the statute these takings were proper and lawful.

"In the case of the Sherburne property a

al was calculated on the expenditures increased by the amount of such interest.

portion of the subway was constructed so | bearing interest at 4 per cent.), and the rentas to extend through the basement of that building and to occupy 2,550 feet of the area of said basement, or about 221⁄2 per cent. of such area, and so as to occupy a similar portion of the first floor, but not in such way as to prevent the use of such area of the first floor for other purposes after the actual work of construction was completed. The The vertical projection of the subway structure above the first floor was small and left the floor substantially as it was before the taking.

"The La Grange street property was used for the placing of an entrance and exit stairway and ventilator shaft, extending simply through the basement. The area taken was 1,570 square feet of the basement, or about 55 per cent. and 380 square feet of the first floor.

"The Winter street property was also used for an entrance and exit, and 1,225 square feet of the basement, or 62 per cent., and 333 square feet of the first floor, or 17 per cent., were used for the subway structure.

"In ascertaining the net cost of the tunnel, the Commission made no allowance or deduction from the amount of 'interest during construction' upon the total amount of the bonds issued to pay for the three estates in question. Interest at 34 per cent. upon the amount of agreed value of the portions of these estates which had ceased to be needed for subway purposes, from the date of the payment for such estates (with the proceeds of tunnel bonds issued at or just before the time of such payments) until November 30th, amounts to $37,539.31.

"It is agreed that if this amount, representing interest during construction on the debt incurred to pay for portions of said estates not permanently needed for the construction of the tunnel, should be deducted in ascertaining the rental of the tunnel, the rental due would be less by $422.32 a quarter than the amount claimed by the city, and *that the judgment for the city in this case should be for $30,348.90 and interest from date of the writ. Otherwise such judgment should be for $35,038.69 and interest. It is agreed that the court may draw such inferences from the facts as above stated as may seem warranted.”

"The principal part of each of these estates was after the construction of the tunnel left free for ordinary commercial uses. The Commission, acting under section 7 of chapter 534 above mentioned, agreed with the Boston Elevated Railway Company as to the value of the surplus portion of each of such estates as follows:

1. Sherburne property ....
2. Winter street property..
3. La Grange street property..

$210.000 00
550,000 00
50,000 00

"The sum of the above amounts was delucted by the Commission from the cost of the tunnel for the purpose of ascertaining the rental thereof.

Jos. P. Lyons, of Boston, for plaintiff. Gaston, Snow & Saltonstall, all of Boston (Arthur A. Ballantine, of Boston, of counsel), for defendant.

RUGG, C. J. The plaintiff brings this action to recover rental for the Washington Street Tunnel. For the completion of the tunnel with its approaches the city of Boston

"The tunnel was opened for use on Nov- took three estates, which thereafter became ember 30, 1908.

"The Commission received certain income through the rental of the three said estates up to the time of the opening of the tunnel, as follows:

1. Net income from Sherburne property from March 19, 1904, to November 28, 1908

2. Net income from Winter street property from August 2, 1907, to November 30, 1908.....

3. Net income from La Grange street property from October 2, 1905, to November 28, 1908....

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37,843 06

in part unnecessary for tunnel purposes. The value of the surplus portions of these estates was agreed upon by the parties, and this value was deducted from the gross cost, in order to ascertain the net cost for the purpose of fixing the rental to be paid to the city by the defendant. The takings and pro$41,630 47 ceedings are agreed to have been regular. The city paid for these estates by bonds issued as provided by law, and paid interest thereon. Payments for these takings were made a considerable time before the value of the surplus takings were agreed upon. During this interval of time the city paid interest on the bonds it had issued in payment for the estates, and received certain rentals from parts of the estates not actually needed for the public purpose. The only question to be decided is the point of time when the deduction of the agreed value of the surplus takings shall be made, whether (1) at the time of the payments for the takings, or (2) at the time of the opening of the tunnel when the rental was fixed.

1,496 77

$80,970 30

"The income so received was applied by the Commission, under section 16 of chapter 534, in meeting the requirements of the sinking fund and in paying interest upon the bonds issued by the city under such statute. "In fixing the net cost of the tunnel and subway under section 10 of chapter 534 of the Acts of 1902, the Commission included interest at 34 per cent. on the bonds issued by the city treasurer at its request under the provisions of section 16 of said chapter,

The decision depends upon the construction of sections 7, 10 and 16 of chapter 534

provision touching this matter. It must be
examined as a whole, and reasonable effect
given to all its terms. The substance of
section 7 is that the value of property taken
but no longer needed "shall be deducted from
the cost of the tunnel
for the pur-
pose of ascertaining the rental thereof." This
is the only provision in the act for any de-
ductions from the expenses incurred by the
city. There is no indication of intention that
sums received for the temporary rent of
property taken but determined finally not
to be needed should be deducted from the
initial cost in order to ascertain the cost up-
on which should be based the rental to be
paid by the defendant. Indeed, that there
was no such legislative intention is manifest
from section 16 in this language: "All rents,
tolls, percentages * * * received by the
city * * for any use of any lands or
rights taken under authority of this act,
shall annually be used by the treasurer," (1)
to meet sinking fund requirements, (2) to
meet interest on bonds, and (3) the surplus
to the general revenue of the city. In view
of this express provision, the fact that the
rental received by the city from the surplus
real estate involved in this action was large
in amount must be regarded as an immate-
rial circumstance in deciding the case at
bar. The Legislature has determined with
precision, in terms not open to controversy
as to meaning, the accounts to which such
rent must be credited.

tion and construction expenses, nor for interpreting these two words as antithetical. All bonds issued under the statute are to be designated on their face "Boston Tunnel and Subway Loan." It is plain that the statute does not undertake with nicety and exact-` ness to reimburse the city for its cost. While by section 16 the rate of interest it may pay on such bonds as these is 4 per cent., the interest, which may be charged on such indebtedness in ascertaining the net cost on which the rental to be paid by the defendant is based, is only 34 per cent. In face of this provision, the argument that the defendant suffers an injustice by permitting the city to retain its rental of surplus land loses much of its force. Other considerations and circumstances may have been within the contemplation of the Legislature in using defined rates of interest, rather than the actual amounts paid with deductions for ad interim income.

The conclusion is that the natural meaning of the statute, construing its language in its common significance, is that the net cost of the tunnel is to be ascertained as of the time when its use begins, and that the deduction for surplus property taken should be made as of that time. In no other way can the city receive interest on the cost to it of the tunnel during construction, and the rents received from such surplus land be contributed to its sinking fund and other specified

use.

Judgment should be entered in favor of the city for the entire amount claimed by it, and it is .So ordered.

Section 10 requires the annual rental, which the defendant shall pay to the plaintiff, to be "equal to 42 per cent. of the net cost of the tunnel," and later defines "net cost" as including "all expenditures incurred in acquisition and construction, including damages, expenses and salaries of the Commission, and interest at 34 per cent. per annum on the debt incurred in construction prior to the beginning of the use." This language is broad enough to include the in- 1. terest on all the bonds issued for payment of the lands here in question. Indeed, it is explicit in this respect. The bonds issued for the purpose of securing money to pay for these takings constituted a debt incurred in acquisition and construction. The only way in which the city was permitted to procure the money with which to meet expenses, both of acquisition and construction, was by the sale of bonds as provided in section 16. The interest on these bonds, not at the rate actually paid, but at a rate fixed by the statute, is included in the net cost of the tunnel. That the word "acquisition" is not repeated at the end of the sentence above quoted is not of much significance. The statute is to be construed in the light of the broad purposes to be accomplished under it. "Construction" in this connection is a word of import large enough to include takings of land. Moreover, the statute makes no provision for a division of the debt between acquisi

(214 Mass. 487)

ISAACS v. MacDONALD.
(Supreme Judicial Court of Massachusetts.
Suffolk. May 22, 1913.)
SALES (§ 22*) -CONTRACTS - OFFER - AC-

CEPTANCE.

A manufacturer offered to send to a buyer a machine and a man to start it, and instruct him in its operation, and to let him use it for 30 days, and if satisfactory settle, and if not to return it, and also stated the price and terms ing the substance of the proposition, and addof payment. The buyer replied by letter, stated that the manufacturer might ship a 12-inch machine at a price of $275 and advise as to when shipment would be made. The manuthe price of a 12-inch machine was $275, with facturer, in making the proposition, stated that $25 off if carrier was not wanted. Held, that the buyer accepted the offer.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 39-43; Dec. Dig. § 22.*]

2. SALES (§ 204*)-CONTRACTS - CONSTRUC

TION.

to send a machine to a buyer and a man to A contract which requires a manufacturer start it, and to give the buyer the right to use it for 30 days, and if satisfactory to settle and pay for it in cash less a discount, or a installments, the manufacturer to hold title unpartial payment and the balance in monthly til paid, is not an agreement for a present sale,

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

nor a definite agreement for an absolute sale | failed to elect to return it within a reasonable in the future, and Sales Act (St. 1908, c. 237) § 17 et seq., relating to the transfer of property, does not apply, and the rights of the parties must be determined by the agreement. [Ed. Note.-For other cases, see Sales, Cent. · Dig. §§ 557, 558; Dec. Dig. § 204.*] 3. SALES (§ 168%*)-CONTRACTS-CONSTRUCTION-TRIAL BY BUYER.

Under an agreement by a manufacturer to ship to a buyer a machine, and send him a man to start it when ready to start it, and to give him the use of it for 30 days, and if satisfactory pay the price, or return it, the 30 days allowed for trial do not begin to run until the man whom the manufacturer is to send has

started the machine, unless the buyer waived the sending of one to start it.

time after the expiration of the trial period, and thereafter notified the seller that he would not take the machine, and that it was packed ready for instructions, the seller could not maintain an action on an account annexed for the price of the machine, but he could sue for the price or return the machine. the buyer's breach of agreement either to pay

[Ed. Note.-For other cases, sée Sales, Cent. Dig. §§ 927-942; Dec. Dig. § 340.*]

Exceptions from Superior Court, Suffolk County; John C. Crosby, Judge.

Action by Henry C. Isaacs against Henrietta F. MacDonald. There was a verdict for plaintiff, and defendant brings exceptions. Sustained.

[Ed. Note. For other cases, see Sales, Cent. Dig. $$ 409-421; Dec. Dig. § 1682.*] Plaintiff, a manufacturer of gluing ma4. SALES (§ 176*)—ContractS-STIPULATIONS chines in two sizes, 12-inch and 26-inch, of-WAIVER.

A manufacturer, contracting to send a machine to a buyer, to send a man to start it when the buyer was ready, and to give the buyer the use of it for 30 days, and if satisfactory pay the price, and if not return it, shipped a machine, and sent to the buyer a bill of lading and a bill for the machine, with a statement of the agreed terms in the alternative. The buyer received it without objection, and did not ask that a man be sent to start it. The manufacturer, about two months later, asked for information and for a settlement; but the buyer made no answer. Later he again wrote and asked for a settlement, and the buyer answered, not complaining that a man had not been sent, but saying that he had just had the machine set up, and made a tentative proposal that it should be exchanged for a smaller one. The manufacturer insisted on an immediate settlement, and the buyer wrote that he could not use the machine and had it packed ready for instructions. Held, that the buyer had waived performance of the requirement that a man should be sent to start it, and it was the duty of the buyer to set up and start the machine within a reasonable time after receiving it, and the 30 days allowed for trial would begin to run at the expiration of the reasonable time.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 436-444; Dec. Dig. § 176.*] 5. SALES (§ 182*)--CONTRACTS-ACCEPTANCE REASONABLE TIME-QUESTION FOR JURY.

Whether a buyer, entitled to a 30 days' trial and then pay the price or return the property, failed after the expiration of a reasonable time to begin the trial, held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 492-495; Dec. Dig. § 182.*] 6. SALES (§ 1682)-TRIAL BY BUYER-FAILURE TO RETURN-EFFECT.

Under Sales Act (St. 1908, c. 237) § 19, rule 3 (2) (b), providing that, when goods are delivered to a buyer on trial, the property passes to the buyer, where he does not signify his approval, but retains the goods without giving notice of rejection, and independently there of, a buyer, failing to return a machine within a reasonable time after the expiration of the trial period, must be deemed to have elected not to return it.

[Ed. Note.-For other cases, see Sales, Cent. Dig. $$ 409-421; Dec. Dig. § 1682.*] 7. SALES (8 340*)-CONTRACTS - BREACHREMEDY.

Where a buyer of a machine, with a right to use it for 30 days and then pay the agreed price, if satisfactory, and if not to return it,

fered to sell a machine to defendant by submitting the following proposition: "My proposition to you is to send you a machine, and when you are ready to start to send you a man to start it for you and instruct you in its operation and care; to let you use it for 30 days, and if satisfactory you settle; if If you not satisfactory, you return to me. wish to pay cash after the 30 days' trial, will allow 2 per cent., or if you want terms you may pay $125 cash and the balance in monthly payments of $50 each, with interest at 6 per cent. per annum, we holding title to the machine until paid for in full.”

Defendant in reply wrote: "In reply to your letter of December 11th in regard to the gluing machine, we note that you say that you will place one in our factory on 30

days' trial, and that if it is not satisfactory for our work at the end of the 30 days we can return the same to you. We also note the terms of 2 per cent. off for cash at the end of the 30 days' trial, or $125 down and the balance in monthly notes of $50 each at 6 per cent. interest. You may ship us a 12" machine at a price of $275 and advise us when you will be able to make shipment of same."

Plaintiff, in making the proposition, stated that the price of the 12-inch machine was $275, with $25 less if carrier was not wanted.

Jacobs & Jacobs, of Boston, for plaintiff. Clarence F. Eldredge and Harold Caverly, both of Boston, for defendant.

SHELDON, J. [1, 2] The defendant's letter of February 15, 1910, was an acceptance of the plaintiff's original offer to her. There is nothing inconsistent with this view in Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 185 Mass. 391, 70 N. E. 421, and Id., 196 Mass. 72, 81 N. E. 645. And though the contract thus concluded was canceled by the subsequent letters of the parties, yet it seems clear that their later agreement, except for the description of the machine and the price to be paid, was in all respects upon the same terms as those which

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