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previously had been settled. The final agree- | set up, and making a tentative proposal that ment then was that the plaintiff should ship it should be exchanged for a smaller one. to the defendant a 16-inch Atherton gluing And on August 3d, after the plaintiff had machine and send to her, as soon as she was rejected the proposal and insisted upon an ready to start it, a man to start it and in- immediate settlement, she wrote that she struct her in its operation and care; should could not use the machine and had it packed, let her use it for 30 days; and if it was ready for instructions from him as to where satisfactory she was to settle for it, and to ship it. Plainly upon this evidence it if not to return it to the plaintiff. If she could be found that she had waived performtook it, she was to have the option of paying ance of the requirement which has been the agreed price, $350, in cash less a small stated. discount, or of paying $125 or $150 in cash and the rest in monthly notes of $50 each with interest, the plaintiff holding title to the machine until paid for in full.

[5, 6] If so, it was her duty to set up and start the machine within a reasonable time after she received it, and the 30 days allowed for trial would begin to run as soon as This was neither an agreement for a pres- that reasonable time had expired. She reent sale nor a definite agreement for an ab-ceived it early in May. She had told the solute sale in future. After the plaintiff had plaintiff that she wished to use it before done what he was to do, the defendant had June 1st. She offered to show that she had the privilege of a 30 days' trial of the ma- in fact no occasion to set it up or use it bechine, with the option, if it was satisfactory fore July 15th. This was a mercantile conto her, of either making a present purchase tract, and it could not have been intended of it for cash or of entering into a condi- that she should postpone starting and trying tional contract for its purchase, paying for the machine indefinitely until she saw fit to it partly in cash and partly in future in- do so, whatever may have been the needs of stallments and not taking the title until she her business. Under the circumstances, and should have paid the price in full. The pro- if she had waived performance of the stipuvisions of the sales act, St. 1908, c. 237, §§ lation as to sending a man, as has been stat17 et seq., relating to the transfer of prop- ed, it was for the jury to say when a reaerty as between the seller and the buyer, sonable time after her receipt of the mado not apply to such an agreement, and the chine expired and when she was bound to rights of the parties must be determined by begin her trial of it. Keeler v. Jacobs, 87 the stipulations which they chose to make. | Wis. 545, 58 N. W. 1107. This is the provi[3, 4] The 30 days which were allowed for sion of the sales act under similar circumthe defendant's trial of the machine could stances. St. 1908, c. 237, s. 19, Rule 3, (2) not begin to run until the man whom the (b). Certainly a jury could find that this plaintiff was to send had started it and in- reasonable time ended and the trial period structed her in its use. The language of the began on or before June 1st or soon thereplaintiff's original offer shows this, both by after, and if so the 30 days had elapsed by the order of statement used therein and by July 1st or soon thereafter. If that should the fact that she was to have 30 days to be found, her attempt to exercise her option "use it," and she could not use it until it of acceptance or refusal on August 5th was had been started and she had received what merely void. instruction was necessary. But this never was done. If nothing further appeared, no action could be maintained, for the time allowed for trial would not have begun, and of course could not have been ended, and the defendant would have come under no liability. But there was evidence that she had waived the stipulation, as of course she could. The plaintiff in his letter of April 26th, inclosing the bill of lading and a bill or parcels for the machine, with a statement of the agreed terms in the alternative, gave to her what could be found to be adequate direc- [7] But the present action is merely upon tions for unpacking, setting up and operating an account annexed for the price of the it. She received this without objection and machine. This claim cannot be maintained. did not ask that a man be sent as had been Taking the most favorable view for the agreed. The plaintiff wrote to her again on plaintiff and supposing the questions which June 16th, and on July 6th, asking for infor- we have stated to be answered in his favor, mation and for a settlement, and she made yet the defendant's liability is only for the no answer. July 14th he wrote to her asking breach of her agreement to make at the end for a settlement by return mail. This letter of the trial period an election whether to she answered on July 15th, making no com- buy the machine in præsenti for $350 or to plaint that a man had not been sent, but agree to buy it and pay part of the price in

In that case, independently of the sales act, the jury could have found that by her failure to return the machine at the expiration of the trial period, or within a reasonable time thereafter, she had elected not to return it. See Ray v. Thompson, 12 Cush. 281, 59 Am. Dec. 187; Aiken v. Hyde, 99 Mass. 183; Hunt v. Wyman, 100 Mass. 198, 199; Martin v. Adams, 104 Mass. 262; McKinney v. Bradlee, 117 Mass. 321; Springfield Engine Stop Co. v. Sharp, 184 Mass. 266, 68 N. E. 224.

taking title until she should have made full payment. If she had made the election first stated, the present action could be maintain

ed. But she has not done so. If she had chosen the second course, an action now could be maintained for the cash payment and for the monthly installments which have accrued. But neither has she done this. The plaintiff, however, if the issues which we have stated are decided in his favor, has the right to maintain an action for the defendant's breach of her agreement to choose between these two courses and to carry out the choice thus made. Whether he will desire and will be allowed to amend his declaration accordingly, we of course do not know. The verdict for the plaintiff ought not to have been ordered.

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MORTON, J. This is an action of tort to recover for injuries received by falling through a hole in a stairway in premises leased by and in the occupation of the defendant. At the close of the evidence the court directed a verdict for the defendant and reported the case to this court. If the ruling was right, judgment is to be entered for the defendant; if erroneous, judgment is to be unsat-fendant; entered for the plaintiff in the sum of $1,300.

The evidence that the plaintiff did not send a man to start the machine and to instruct the defendant in its use should have been admitted. The evidence that it was not adapted to her business and was unsatisfactory should have been admitted, though the jury should be instructed not to consider this evidence if she did not notify the plaintiff of her dissatisfaction and offer to return the machine at the end of the trial period or within a reasonable time thereafter. The other evidence offered by the defendant was rightly excluded.

Exceptions sustained.

(214 Mass. 499)

FOLEY v. J. R. WHIPPLE CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1913.)


In an action by a hotel chambermaid to recover for injuries received on account of a defective stairway, which she was compelled to use in going to her work, evidence held sufficient to present the question of plaintiff's due care to the jury.

The question is whether there was any evidence warranting a verdict for the plaintiff, ! and we think that there was such evidence. The plaintiff was a chambermaid in the employ of the defendant. The defendant furnished her and others of its help with rooms and board. The rooms were in an annex connected with the hotel by a passageway under Tamworth street, from which, at either end, stairways led to the street floor of the hotel and annex respectively. The stairway thus provided was the only way for the plaintiff and others of the help to go to and from their rooms in the annex to the hotel. The plaintiff had an hour for dinner, from 12 to 1, and on the day of the accident, after getting her dinner, had gone to her room by the stairway in question and was returning a few minutes before 1 to her work in the hotel, when she fell into the hole in the stairway. The stairs were being repaired by carpenters, who had been sent at the request of the defendant by and who were paid by the E. Noyes Whitcomb Company. They had been doing jobs at the hotel for several weeks, eight or nine, one of the witnesses testified, and did whatever work the hotel people ordered to be done. The staircase was being repaired pursuant to orders thus given by having the old treads taken off and replaced by new ones. The carpenters did in their own way the work which they were told to do. The hole into which the plaintiff stepped was caused by a tread having been taken off. The plaintiff testified that when she went up to her room after dinner there was nothing to show anything 3. MASTER AND SERVANT (8 185*) - FELLOW was being done to the stairs, and in this she SERVANT-DELEGATION OF MASTER'S DUTY. was corroborated by a witness called by her If the carpenters repairing such stairway and by two of the witnesses called by the dewere fellow servants of the chambermaid, it fendant. She further testified that when was the master's duty, in putting them to work, to take reasonable precautions for the she came down from her room two carpen

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



Where a hotel keeper required his chambermaids to use a certain stairway in going from their rooms to work, and one of them was injured by falling through a hole where a tread had been removed by carpenters engaged in repairing the stairway, it was the master's duty to see that the stairway was reasonably safe or to give proper warning, even though the work was being done by an independent contractor; it appearing that the master retained control of the stairway and provided no other way for the servants' use.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. § 150.*]

ters were sitting on the stairs, but no notice or warning was given her by them that a tread had been removed; that there was no light there, that no barrier or sign had been put up as a warning that the stairs were being repaired, and that she did not know and had no reason to know that there was anything unsafe about the stairway until she fell into the hole.

There was uncontradicted evidence that no barrier was put up by the defendant until after the accident, when one was put up for the short time that elapsed before the stairway was completed, and an elevator was used during that time instead of the stairway. There was evidence tending to show that the defendant retained control of the stairway while it was being repaired and that until after the accident no other way was furnished for the plaintiff and the other help to get to and from their rooms in the annex except over the stairway.

[1] We think that it is plain that there was evidence of due care on the part of the plaintiff. The carpenters testified that they warned her and that there was a light there, and there was testimony tending to corroborate them. But it was for the jury to say what the facts were and to decide, according to the facts found by them, whether the plaintiff was or was not in the exercise of due care. The defendant concedes "that there was conflicting evidence for the jury of pegligence on the part of the carpenters in failing properly to use the portable electric light provided for the purpose by the defendant and in failing to warn the plaintiff of the danger by the use of the light provided, or in some other manner." See Johnson v. FieldThurber Co., 171 Mass. 481, 51 N. E. 18; Falardeau v. Hoar, 192 Mass. 263, 78 N. E. 456; Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449, 132 Am. St. Rep. 468.

[2] We also think that there was evidence of negligence on the part of the defendant. The defendant retained control of the passageway and staircase and provided no other way for the plaintiff and others of its help to go to and from their rooms in the annex to their work in the hotel except over the stairway in question. It was the defendant's duty to see that the stairway was reasonably safe, or to give to the plaintiff and its other employés due warning thereof. White

going on. Under such circumstances the defendant was bound to exercise reasonable care to warn these having occasion to use it, or to put up suitable barriers. Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449, 132 Am. St. Rep. 468.

[3] The defendant further contends that if the work was not being done by an independent contractor, the carpenters were fellow servants of the plaintiff and that the accident was due to negligence on their part in failing to warn the plaintiff by means of the light which there was evidence that the. defendant had furnished or otherwise. But if they were fellow servants it was none the less the duty of the defendant in setting them to work to take suitable precautions for the safety of those who had occasion to use the stairway. This was a duty which the defendant could not delegate and from which negligence on the part of fellow servants would not exonerate or relieve it. If the defendant took all the precautions which reasonably could be required of it for the safety of those having occasion to use the stairway and the accident was caused by negligence on the part of a fellow servant, then the defendant would not be liable. But whether it did take all such precautions was plainly, it seems to us, a question on which there was evidence for the jury. See Lundergan v. Graustein & Co., 203 Mass. 532, 89 N. E. 1034; Falardeau v. Hoar, 192 Mass. 263, 78 N. E. 456; White v. Newborg, 208 Mass. 279, 94 N. E. 269; Crimmins v. Booth, supra.

Judgment for the plaintiff in the sum of $1,300.

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[Ed. Note.-For other cases, see Audita Querela, Cent. Dig. §§ 8-13; Dec. Dig. § 3.*] 2. AUDITA QUERELA (§ 10*)-NATURE OF REMEDY-RULES OF PRACTICE.

v. Newborg, 208 Mass. 279, 94 N. E. 269. that proceedings on a writ of audita querela Under Rev. Laws, c. 192, § 1, providing The defendant contends that the accident shall be the same as in personal actions so far was due to an independent contractor, or as applicable, and Rev. Laws, c. 173, § 1, dividto negligence on the part of a fellow servant. ing all personal actions into actions of contract, But if we assume in the defendant's favor tice apply to the writ; and on report to the Sutort, and replevin, the common-law rules of practhat the work of repair was being done by preme Judicial Court, on the sufficiency of the an independent contractor, that does not help evidence to support the findings, findings are the defendant. The case stands differently not to be set aside, unless wholly unsupported. from what it would if the defendant had not Querela, Cent. Dig. § 29; Dec. Dig. § 10.*] [Ed. Note.-For other cases, see Audita retained control of the stairway and con- 3. AUDITA QUERELA (§ 7*)-BURDEN OF PROOF. tinued to furnish it for the plaintiff and On a writ of audita querela for relief others of its help to use while the repair was against a judgment on the ground that the

debtor was discharged in bankruptcy after the | cy. Further stay for a period of 12 months, judgment was rendered, the burden is upon him or until the question of discharge is deterto show that he did all things required by section 7, subd. 8, and section 17 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 548, 550 [U. S. Comp. St. 1901, pp. 3424, 3428]) to give notice to the creditor, or else that the latter had actual knowledge of the bankruptcy proceedings.

[Ed. Note,For other cases, see Audita Querela, Cent. Dig. § 26; Dec. Dig. § 7.*] 4. BANKRUPTCY (8 425*) SCHEDULE CREDITORS.



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DISCHARGE RESIDENCE OF Where a debtor listed a claim upon which suit had already been brought against him, and stated in his schedule that the residence of the creditor was unknown, a finding by the superior court that the debtor did not properly schedule the claim is not unsupported by the evidence, since his residence was stated in the writ and summons, and ought to have been known to the debtor.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. 8 775; Dec. Dig. § 425.*]

Report from Superior Court, Suffolk County; William B. Stevens, Judge.

Writ of audita querela by Boardman J. Parker against Walter F. Murphy. On report from the superior court. Judgment for defendant affirmed.

Herbert L. Baker and F. Keeler Rice, both of Boston, for petitioner. John E. Crowley, of Boston, for defendant.

mined, if application therefor is made within such time, is discretionary with the court. Feigenspan v. McDonnell, 201 Mass. 341, 346, 87 N. E. 624. Nevertheless in the simple action at law upon a claim to which a discharge in bankruptcy would be a bar, where no rights of or against third persons are involved, such as existed for instance in Rosenthal v. Nove, 175 Mass. 559, and no ulterior interests are affected, the usual procedure is for the bankrupt to plead the pendency of bankruptcy proceedings and ask for a continuance until he can obtain and plead his discharge. This is pointed out in Rogers v. Abbot, 206 Mass. 270, 274, 92 N. E. 472, 138 Am, St. Rep. 394. See also Faxon v. Baxter, 11 Cush. 35. If the present plaintiff had pursued that course it is highly probable that no judgment would have been rendered against him. We do not rest the decision upon this ground, as neither party has argued it, but proceed to consider the case upon its merits.

The case was heard at length by a judge of the superior court, who found in substance that the debt due from the plaintiff to the defendant was not "duly scheduled in the schedules of the debts of the bankrupt, the residence having been given therein as unknown, and the burden being upon the plaintiff to establish the allegation * * that he had 'done all things required to be done under and by virtue of the bankruptcy laws of the United States to give notice to the respondent of his proceedings in bankruptcy,'” found "upon all the evidence he has not proven that fact or that the respondent had actual knowledge of the proceedings in bankruptcy." After making these findings of fact, the court found generally for the defendant and then reported the case to this court, presenting the question, "whether upon all the evidence the discharge in bankruptcy of the complainant discharged the claim of the respondent, including thereunder the question as to whether or not all the requirements of the bankruptcy act were complied with by said complainant, or that the creditor, said respondent, had notice or actual knowledge of the proceedings in bankruptcy so as to make said discharge effective as against the claim in the hands of said respondent. If from all the evidence herein the discharge in bankruptcy affects the respondent's claim, then the respondent is to be granted a new trial; otherwise if the finding of the trial judge is right the same is to be affirmed."

RUGG, C. J. This is a writ of audita querela. The plaintiff asks relief from a judgment, recovered by the defendant against him, on the ground that the debt on which that judgment was founded was barred by the plaintiff's discharge in bankruptcy. The undisputed facts are that an action at law in the superior court on three promissory notes was brought by the defendant against the plaintiff. Thereafter, while this action was pending, the plaintiff after filing his petition therefor was adjudicated a bankrupt. The fact of bankruptcy was not pleaded in the action at law and was in no way called to the attention of the court, and in due course judgment was entered in favor of this defendant against the plaintiff. Afterwards, the plaintiff received his discharge in bankruptcy. [1] It is established that a writ of audita querela will not avail a complaining party who has had a legal opportunity of defense, or where the alleged wrongful judgment from which he seeks release is attributable to his own neglect. Lovejoy v. Webber, 10 Mass. 103. Radclyffe v. Barton, 161 Mass. 327, and cases cited at 331, 37 N. E. 373. It is at least doubtful whether upon these facts the plaintiff is entitled to maintain his writ. It is true that the present federal Bankruptcy [2] An audita querela is a common-law Act (Act July 1, 1898, c. 541, § 11, 30 Stat. writ, and by R. L. c. 192, § 1, the forms of 549 [U. S. Comp. St. 1901, p. 3426]) makes process shall be those heretofore established compulsory a stay of an action, pending upon and the "proceedings so for as appropriate a claim to which a discharge in bankruptcy shall be the same as in personal actions," would be a bar, only until after an adjudica- that is, as in actions at common law. See R. tion or dismissal of the petition in bankrupt- L. c. 173, § 1. Although the nature of the

Judgment for defendant affirmed.

remedy is equitable, the rules of practice ap- [ warranted that he might have ascertained plicable to it are those prevailing at common the residence by the exercise of the reasonlaw. Upon this report, therefore, the ques-able diligence which the importance of the tion presented is, as in the ordinary action subject imposed upon him. The want of at law, whether there was any evidence knowledge which will excuse a debtor from warranting the findings of the judge which putting the residence of his creditor in the are not to be set aside unless wholly unsup- list is not that which may exist without atported. His decision of questions of fact is tempt to gain the information, but that which not to be revised. arises after reasonable effort has been made [3] Section 17 of the Bankruptcy Act pro- to find out. Clearly the finding that the credvides that a discharge in bankruptcy shall re-itor did not have notice or actual knowledge lease the debtor from all provable debts "ex- of the bankruptcy proceedings was warranted cept such as have not been duly by the evidence. scheduled * * unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." Claims are not duly scheduled unless the names of the debtor's "creditors, showing their residence, if known," are C. A. BRIGGS CO. v. NATIONAL WAFER on the list of creditors filed. Section 7, subd. 8. The burden of proving that he did all things required of him under the bankruptcy law to give notice to the respondent creditor of the bankruptcy proceedings or that the Jatter had actual knowledge of them rests upon the plaintiff in this case. Wylie v. Marinofsky, 201 Mass. 583, 88 N. E. 448; Wineman v. Fisher, 135 Mich. 604, 608, 98 N. W. 404.

[4] The requirement for duly scheduling

the names and residences of creditors is a most important one. It is in compliance with the generally recognized principle that one shall not be barred of his claim without the opportunity of having his day in court. It is for the benefit of the creditors and in the interest of fair dealing with them and is to be construed in harmony with this purpose. It is essential in order that notice in the bankruptcy proceeding may be sent him. It has been construed with some strictness. Birkett v. Columbia Bank, 195 U. S. 345, 25 Sup. Ct. 38, 49 L. Ed. 231; Custard v. Wigderson, 130 Wis. 412, 110 N. W. 263, 10 Ann. Cas. 740.

It seems plain that the finding that the debt from the plaintiff to the defendant was not properly scheduled was not unsupported by the evidence. The plaintiff knew that the defendant's action at law against him had been brought about 11 months before his petition in bankruptcy and was pending against him. It is common knowledge that the resihim. It is common knowledge that the residence of the plaintiff is stated in the ordinary writ and in the summons or copy handed to the defendant. A simple reference to a paper presumably in his possession or to a court record of the existence of which he was well aware would have furnished him with the information as to the creditor's resAn inference by the trial judge unidence. der these circumstances that the debtor knew the residence of his creditor would have been justified. But whether this inference was drawn or not, there was evidence that the debtor failed to avail himself of information close at hand. A finding would have been


(215 Mass. 100)

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


A manufacturer or vendor has no right to use the words "Boston Wafers" as a trademark.

[Ed. Note.-For other cases, see TradeMarks and Trade-Names, Cent. Dig. § 13; Dec. Dig. § 9.*]


UNFAIR COMPETITION-ACTS CONSTITUTING. Though a word or combination of words may not become a valid trade-mark, yet, where it has by long and exclusive use acquired such trade that the goods to which it is applied are a secondary meaning as to indicate in the made by a particular manufacturer, or placed on the market by a particular vendor, the use thereof by another on similar goods in such a way as to be likely to deceive purchasers is unfair competition, and will be restrained.

[Ed. Note.-For other cases, see TradeMarks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*]


One has a right to be protected in selling his goods against the unfair competition of any others, who may seek by imitating his brands or the style of his packages to palm off their goods as his..

[Ed. Note.-For other cases,
Marks and Trade-Names, Cent. Dig. § 81;
see Trade-
Dec. Dig. § 70.*]

One who uses a name, not strictly a
trade-mark, and who has procured for the
name a secondary meaning, which entitles him
to protection against unfair competition, is
entitled to such protection only within the ter-
meaning is known, since, where the secondary
ritorial boundaries within which the secondary
meaning is unknown, no purchaser will un-
derstand them in any but their primary sense,
and no purchaser may be deceived by their
[Ed. Note.-For other cases,
Marks and Trade-Names, Cent. Dig. § 84;
see Trade-
Dec. Dig. § 73.*]



his findings on questions of fact raised before A report of a master, wherein he states him, may be modified or reversed, or recommitted; but in the meantime it is presumed

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