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nesses in support of its contention than is the plaintiff, and that this fact should be borne in mind in weighing evidence, and hence that it is legitimate for the defendant to refer to the statute as putting parties on an equal basis in this respect. But it does not appear that such suggestion was made in behalf of the plaintiff in the case at bar. Cases are to be tried upon the evidence and not upon unsupported innuendoes as possible reasons why more or less witnesses are called on the one side or the other.

[4] 4. The other exceptions taken by the defendant have not been argued and are treated as waived.

Exceptions overruled.

(215 Mass. 547)

BOWKER et al. v. TORREY et al. (Supreme Judicial Court of Massachusetts.

Suffolk. Oct. 21, 1913.) EXECUTORS AND ADMINISTRATORS (§ 437*)

ACTIONS-LIMITATIONS-APPLICATION. Where a bill was filed against the widow of a deceased member of a firm, individually and not as executrix, to recover a sum alleged to have been paid to her as the amount of her deceased husband's interest in the firm, in excess of the amount she was in fact entitled to, due to a mistake in dividing the assets, the bill was not subject to Rev. Laws, c. 141, § 9, fixing a period of limitation for suits against executors and administrators.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1729-1761, 1764; Dec. Dig. § 437.*]

Appeal from Supreme Judicial Court, Suffolk County.

Action by Lyman A. Bowker and others against Adelaide J. Torrey and others. Decree for defendants, and plaintiffs appeal.

Reversed.

Loring, Coolidge & Noble, of Boston, for appellants. G. W. Anderson, of Boston, for appellees.

and of certain described parcels of real estate the legal title to which had been put into the names of the three partners as tenants in common, but which were really held by them as firm assets and upon a resulting trust in favor of the firm. A partnership account was taken, from which it appeared that the estate of Charles Torrey was entitled to receive somewhat more then 11 per cent., Franklin Torrey nearly 40 per cent., and the estate of Edwin Bowker, represented by the plaintiffs, nearly 49 per cent., of all the partnership property. It was intended to convey all the firm assets to a new corporation which was formed, and to divide the capital stock of that corporation among the three parties in interest in the proportions stated, which, according to the accounting that had been made, would have brought about a correct division of the firm assets. The bill charges, however, that there were errors and mistakes in this account, and that the share of Charles Torrey's estate should have been found to be less, and the shares of Franklin Torrey and of Edwin Bowker's estate correspondingly greater, than this account showed. But only the personal assets, according to the bill, were conveyed to the corporation; and by another and grosser mistake of the common agent of the parties the real estate was left to be enjoyed by the several partners or their respective representatives according to their legal titles. The result was, as the bill avers, that Mrs. Torrey received one-third of the real estate, instead of about 11 per cent. thereof, being a very much larger amount than she should have had, while Franklin Torrey, the surviving partner, and the plaintiffs in the right of Edwin Bowker, the other deceased partner, were left with much less than they were severally entitled to receive. This was all done after the decease of Charles Torrey; and Mrs. Torrey, being the executrix of his will and the devisee thereunder, became entitled to and possessed of the allotted part of the capital stock of the corporation and one undivided third part of the real estate. The bill seeks to correct the errors, to have Mrs. Torrey ordered to pay to the plaintiffs the amount which she has gained at their expense, and to enforce a trust upon her share of the real estate for such payment.

The only question now before us is whether the statute of limitations of suits against executors and administrators (R. L. c. 141, § 9) constitutes a bar to the action.

SHELDON, J. Material amendments have been made in the plaintiffs' bill since our decision reported in 211 Mass. 282, 97 N. E. 770. As now presented, the plaintiffs put their claim against Mrs. Torrey upon the ground that through a mutual mistake of all the parties made by their common agent she has received out of the assets of the former firm of Bowker, Torrey & Co. a much larger amount than should have come to her as the representative of Charles Torrey, a deceased partner, and that the plaintiffs as the representatives of Edwin Bowker, another deceas- The bill is not brought and relief is not ed partner, and Franklin Torrey, the third sought against the estate of Charles Torrey, partner, in his own right, have each received but against Mrs. Torrey individually. The a correspondingly smaller amount than they plaintiffs ask for decrees against her, not were respectively entitled to have. Disregard- against the estate of her testator in her ing the cash contribution of $100,000 made hands. That the result of the establishment in equal shares by the holders of the three of their claim may be to diminish the assets interests towards the payment of the debts of that estate in her hands or the amount of the firm, the plaintiffs claim that the firm coming to her as devisee of that estate, is assets consisted of certain personal property not material. Ames v. Jackson, 115 Mass.

508, 510. The liability was created by her act, however innocently done, in receiving property to which she was not equitably entitled. See the notes to Brown v. Quinton, 18 Ann. Cas. 292, and to Western Newspaper Union v. Thurmond, 23 Ann. Cas. 728. Manifestly this action, if it can be maintained at all, could be maintained against her for the relief sought, though another person had been the executor of her husband's will, if the property in question actually had come to her hands. The liability to the plaintiffs set out in the bill did not exist in Charles Torrey's lifetime; it arose only when, by a common mistake, she received property to which Franklin Torrey and the plaintiffs were equitably entitled. It follows that the plea of the special statute of limitations sets out no defence to this suit; and the order adjudging the plea sufficient and the decree dismissing the bill must both be reversed.

We add, to avoid any misconception, that we have not considered the question whether any relief can be given to the plaintiffs without joining Franklin Torrey either as a plaintiff or as a defendant, and without bringing all the property in question into hotchpot, instead of seeking to hold merely the undivided interest of Mrs. Torrey in that property. Upon these questions we express no opinion.

Order and decree reversed.

(215 Mass. 550)

ELECTRELLE CO. v. MAGUIRE. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 21, 1913.)

1. ACTION (§ 53*)-SPLITTING CAUSES OF ACTION-INSTALLMENTS OF RENT.

Under a contract to pay rent monthly for a piano player, the lessor could sue for each unpaid installment as it fell due, or could recover in one action all installments then due, but not installments falling due subsequent to the bringing of such action, and after bringing one action could bring further actions for installments thereafter falling due.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 549-551, 553-623; Dec. Dig. 53.*]

2. JUDGMENT (8 603*)

CAUSES OF ACTION BARRED-IDENTITY OF CAUSES. Where, under a contract to pay monthly rent for a piano player, after bringing suit for all installments then due, the lessor sued for subsequent rents, and recovered judgment therefor before the first action came on for trial, this did not prevent a recovery in the earlier action, unless the earlier rents were included in the subsequent action.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1118; Dec. Dig. § 603.*] 3. JUDGMENT (§ 603*) · CAUSES OF ACTION BARRED-IDENTITY OF CAUSES.

The lessor of a piano player, under a contract providing for the payment of monthly rent, after suing for the rent for 23 months ending October 1, 1910, and while the action was pending, brought a suit of equitable replevin, and alleged in the fourth paragraph of his bill that defendant, though requested, had not paid the rent for certain months prior to

November 1, 1910, "for which the plaintiff has brought suit," and had not paid the rent for February, and March, 1911. The court renderNovember and December, 1910, and January, ed a judgment for plaintiff "as and for the rent specified in the fourth paragraph of the bill." Held, that the rent for the months prior to No-. in equity, and hence the judgment in that suit vember, 1910, were not included in the suit did not bar a recovery in the earlier action at law.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1118; Dec. Dig. § 603.*]

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Action by the Electrelle Company against James J. Maguire. The court found for plaintiff, and defendant brings exceptions. Exceptions overruled.

Roger D. Swaim and John M. Maguire, both of Boston (Hale & Grinnell, of Boston, of counsel), for plaintiff. Jas. J. McCarthy, of Boston, for defendant.

LORING, J. This is an action for rent of a piano player, payable in advance at the rate of $25 a month for the 23 months beginning December 1, 1908, and ending October 1, 1910. The plaintiff credited the defendant with payments made during this period, amounting to $242.85, making the net balance due (disregarding interest) $332.15.

The action came on to be tried in February, 1912, by a single judge sitting without a jury. At the trial the plaintiff put in evidence the record in a suit of equitable replevin brought by the same plaintiff against the same defendant some 5 months after the bringing of the action now before us. By a final decree made in that suit some 4 months before the trial was had in this action, the defendant had been ordered (1) to deliver to the plaintiff the piano player, and (2) to "pay to the plaintiff as and for the rent specified in the fourth paragraph of the bill and interest thereon the sum of one hundred and thirty dollars and fifty-nine cents ($130.59) and

that execution issue therefor." The fourth paragraph of the bill in equity, so far as it deals with rent of the piano player, was in these words: "The defendant, though requested, has not paid the rent therefor for certain months prior to November, 1910, for which the plaintiff bas brought suit; and has not paid the rent for the months of Novem ber and December, 1910, and January, Febru ary, and March, 1911."

The judge made the following findings in the action now before us: "I find that 'rent therefor for certain months prior to November, 1910, for which plaintiff has brought suit' is not the rent specified in the fourth paragraph, and that 'the rent for the months of November and December, 1910, and January, February, and March, 1911,' is the rent specified, and that it is the latter period, and no other, that the decree covers." find for the plaintiff in the sum of $332.15, with interest from the date of the writ."

"I

--

The measure of damages for the breach of a contract binding one to take milk from another for a year at a specified price includes the profits which the seller would have realized from the contract if fully performed by the buyer.

Dig. §§ 1098-1107; Dec. Dig. § 384.*]
[Ed. Note.-For other cases, see Sales, Cent.

[1, 2] The rent being payable monthly, the [ 4. SALES (§ 384*) - BREACH OF CONTRACTplaintiff had a right to bring an action for DAMAGES. each unpaid monthly installment as it fell due. In the action now before us the plaintiff could recover for rent due for the 23 months next before October 19, 1910, but not for rent thereafter falling due. After bringing this action he had a right to bring a further action or actions to recover unpaid monthly installments thereafter falling due. If he did bring subsequent actions for subsequent rents and recover judgment in the subsequent action for the subsequent rents before the first action came on for trial, he was not thereby prevented from recovering a later judgment in the earlier action for the earlier rent.

[3] Of course the plaintiff could not recover in this the earlier action for the earlier rents if he included the earlier as well as the subsequent rents in the subsequent bill in equity on which he has had a decree.

But it is manifest that the plaintiff in the case at bar intended to exclude from the subsequent bill in equity the rents (covered by this earlier action) for the months prior to November 1, 1910, by inserting in the fourth paragraph of the subsequent bill in equity the allegation that he had "brought suit" for the rent for those months. Exceptions overruled.

(215 Mass. 559)

RAYMOND v. PHIPPS.

(Supreme Judicial Court of Massachusetts. Franklin. Oct. 21, 1913.)

1. SUNDAY (§ 22*)-SUNDAY CONTRACT-ILLEGALITY-PLEADING-NECESSITY.

The defense of illegality of the contract sued on, because made on Sunday, is not available unless pleaded.

5. SALES (§ 382*)-BREACH OF CONTRACT-EVI

DENCE-DAMAGES.

In an action for breach of contract for the purchase of milk for a specified period for a specified price, evidence of the price for which the seller sold the milk to a third person, after the buyer had refused to take it, was admissible to show the profits which the seller would have realized in the event the buyer had performed, in the absence of anything to show that the price the seller obtained was not the best price obtainable.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1096; Dec. Dig. § 382.*] 6. SALES (§ 382*) - CONTRACTS - ACTIONS FOR

BREACH EVIDENCE.

In an action for breach of a contract for the purchase of milk for a specified period and price, the question whether the seller owned or had any financial interest in the milk he was shipping to the buyer was immaterial.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1096; Dec. Dig. & 382.*]

7. SALES (§ 382*)-CONTRACTS-ACTIONS FOR BREACH-ISSUES.

Where, in an action for breach of contract for the purchase of milk for a specified period and price, the buyer did not offer to show that the contract sued on was a partnership transaction, and that in making the contract the seller acted for a firm, evidence whether the seller and another were in partnership was properly excluded.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1096; Dec. Dig. § 382.*]

Exceptions from Superior Court, Franklin County; Loranus E. Hitchcock, Judge.

Action by George S. Raymond against Ray L. Phipps. Verdict for plaintiff, and defend

[Ed. Note. For other cases, see Sunday, ant brings exceptions. Overruled. Cent. Dig. § 56; Dec. Dig. § 22.*]

2. TRIAL (§ 267*)-INSTRUCTIONS-REQUEST. The court need not use the exact language of a requested charge, but may give it in

substance.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*] 3. FRAUDS, STATUTE OF (§ 160*)-EVIDENCEINSTRUCTIONS.

William A. Davenport and Harry A. Weymoth, both of Greenfield, for plaintiff. Homer Sherman, of Charlemont, for defendant.

MORTON, J. This is an action to recover damages for the breach by the defendant of an alleged oral contract for the sale of milk by the plaintiff to him for one year. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings and to the admission and exclusion of evidence.

Where, in an action for breach of an oral contract for the sale of milk for one year, plaintiff testified that defendant agreed to take the milk for a year, on the day of the conversation resulting in the contract, a charge that if the agreement was as claimed by plaintiff, that defendant would take the milk for one year, and there was nothing further said The plaintiff is a farmer in Charlemont about it, that would be an agreement which and the defendant a milk dealer in Boston. could be performed within one year, and if During the late summer of 1911 the plaintiff the agreement was that defendant should take the milk for one year from some future date, began shipping milk to the defendant at 32 the agreement could not be performed within cents per can. In the fall of 1911 the dea year, and the statute of frauds was a de- fendant and his sister drove to the plaintiff's fense, sufficiently submitted the issue whether house and a conversation took place between the contract was void under the statute of the parties. It is upon this conversation that [Ed. Note.-For other cases, see Frauds, the plaintiff bases this action. The plaintiff Statute of, Cent. Dig. § 379; Dec. Dig. & 160.*] | testified that the defendant told him other

frauds.

[4, 5] The measure of damages included the profits which the plaintiff would have realized from the contract if it had been fully performed. Fox v. Harding, 7 Cush. 516, 522. In the absence of anything to the contrary it is to be presumed that the price for which the plaintiff sold the milk to Hood after the defendant had refused to take it, was the best price obtainable, and it was admissible for the purpose of showing the profits which the plaintiff would have realized and the loss which he sustained.

parties were furnishing a part of the cans necessary for carrying on the business, and asked him to do the same, and that he told the defendant that he would furnish cans as requested if the defendant would agree to take his milk for a year at 34 cents a can. Down to this point the parties agree. The plaintiff further testified that the defendant agreed to take his milk for a year. The defendant testified that he did not so agree, and that the plaintiff did not let him know until the next day that he would furnish the cans. This conversation took place, according to the plaintiff's recollection, in Novem-owned or had any financial interest in the ber, though he would not say positively. The defendant introduced evidence tending to show that it took place in the afternoon of Sunday, October 22d. There was other evidence bearing on the question when the contract took effect, but it is not necessary to refer to it more particularly now.

[6, 7] The question whether the plaintiff

milk he was shipping to the defendant was properly excluded. Whether the plaintiff owned or had any financial interest in the milk had nothing to do with the contract or with the defendant's breach of it. We also think that, as the case stands, the question to the witness Legate, "Were Mr. Raymond [the plaintiff] and your son in partnership at this time?" was properly excluded. There was no offer to show that the contract in suit was a partnership transaction and that in making the contract the plaintiff was acting for and on behalf of the firm, in which case the question would have been admissible. Baker v. Jewell, 6 Mass. 460, 4 Am. Dec. 162; Converse v. Symmes, 10 Mass. 378; Halliday v. Doggett, 6 Pick. 359; Fay V. Duggan, 135 Mass. 242; 15 Cyc. of Pl. & Pr. 566, and cases cited. But the question, as we construe it, was simply whether a partnership existed between the plaintiff and the son, of the witness. So interpreted, the question was plainly incompetent and immaterial. Exceptions overruled.

(215 Mass. 532)

CARR v. WEISS. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 20, 1913.) 1. RELEASE (§ 59*)-INSTRUCTIONS-EFFECT OF

[1] The first ruling requested was in substance that if the jury should find that the contract was made on the Lord's Day the plaintiff could not recover. This was rightly refused. The defense of illegality was not set up in the answer and was not therefore open to the defendant. O'Brien v. Shea, 208 Mass. 528, 95 N. E. 99, Ann. Cas. 1912A, 1030; Silver v. Graves, 210 Mass. 31, 95 N. E. 948. [2, 3] The second ruling requested was that if the contract was for one year, and the year did not include the day on which it was made, the plaintiff could not recover in the absence of a written memorandum. This was given in substance, though not in form. The presiding judge was not obliged to use the exact language of the request. The jury were instructed as follows: "If the agreement was, as claimed by the plaintiff, that the defendant would take the milk for one year and there was nothing further said about it, that would be an agreement which could be performed within one year from the making thereof. If the agreement was that he was to take the milk for one Where the defendant, in an action for asyear from some future date, then the agree- sault and battery and for conversion, relied upment could not be performed within a year mands of every name and nature, whether in on a release signed by the plaintiff of all defrom the time that the agreement was made, law or in equity, against the defendant, a and the statute of frauds would be a defense charge that the release was to be considered in such a case as that." The plaintiff tes- with reference to the things stated therein, or with reference to the circumstances at the time, tified that the defendant agreed to take the with a view of determining whether it was inmilk for a year and on the day that the con- tended to include anything outside of what was versation took place, and we do not see how expressed in the release, was erroneous, as tendthe jury could have failed to understanding to lead the jury to infer that, unless the meaning of the release was enlarged by the cirfrom the instruction that if the year in- cumstances under which it was given, it would cluded the day on which the agreement not cover plaintiff's claim for assault and batwas made the plaintiff could recover, buttery. if it did not the statute of frauds would be a defense and the plaintiff could not recover. So understood, the instruction covered all that the defendant asked and no harm was done by the refusal to give it in the form in which it was requested. Sanborn v. Fireman's Ins. Co., 16 Gray, 448, 77 Am. Dec. 419.

RELEASE.

Cent. Dig. § 115; Dec. Dig. § 59.*]
[Ed. Note.-For other cases, see Release,

2. RELEASE (§ 58*)-DIRECTED VERDICT-SUF-
FICIENCY OF EVIDENCE.

Where there was evidence that the plaintiff did not sign the release in question, it was proper to refuse the defendant's request for a

directed verdict.

[Ed. Note.-For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*]

3. RELEASE (§ 59*)-INSTRUCTION-DELIVERY. Several occasions pricr to the 11th day of A requested ruling that, if plaintiff signed July, 1910, she had accused him of striking the release upon which defendant relied, the ver- her, and that on said 11th day of July, 1910, dict must be for the defendant, was properly refused, since the release would not have been when he was settling matters with her a bar unless it was delivered as well as signed. regarding the rent, he told her in view of [Ed. Note. For other cases, see Release, her accusations that he wanted a full release Cent. Dig. § 115; Dec. Dig. § 59.*] of all claims that she had against him; that she demurred at first, but finally signed the release, * as well as the bill of sale." There was further evidence that the plaintiff signed both papers.

Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by Idella J. Carr against Sol Weiss. Verdict for plaintiff, and defendant excepted. Exceptions sustained.

The rulings requested by the defendant were as follows:

(1) That upon all the evidence the defendant is entitled to a verdict.

(2) That as to the release put in evidence by the defendant, the only question in issue is whether or not the plaintiff signed the same; and if the jury find that plaintiff signed the same, the verdict must be for defendant.

John D. Graham, of Boston, for plaintiff. Harry Bergson and John J. O'Connor, both of Boston, for defendant.

LORING, J. The first count of the declaration was for assault and battery and the second for conversion of shares of stock. The defendant pleaded a release.

*

In that portion of the charge to which exception was taken the presiding judge assumed, or well might have been taken by the jury to have assumed, that unless its meaning was enlarged by the circumstances. under which it was executed the release did not cover the plaintiff's alleged claim for assault and battery. This was not correct, and this exception must be sustained without considering further this portion of the charge.

[2, 3] The rulings asked for by the defendevidence that the plaintiff did not sign the ant could not have been given. There was release and so the first could not be given. If the release had been signed, but not delivered, it would not have been a bar. For that reason the judge was not wrong in refusing to give the defendant's second ruling. Exceptions sustained.

RY. CO.

(215 Mass. 538)

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 20, 1913.)

[1] At the trial a release under seal in the following words was put in evidence: "I hereby acknowledge to have this day received from Sol Weiss one dollar to me paid by BOUSQUET v. WORCESTER CONSOL. ST. said Weiss. I do hereby release the said Weiss from all claims and demands which I may or might have against him and this release is in full of all demands against the 1. STREET RAILROADS (§ 117*)-PERSONAL INsaid Weiss every name and nature whether in law or in equity I may have against him to date. Witness my hand and seal this 11th day of July, A. D. one thousand nine hundred and ten. Idella J. Carr. Idella J. Carr. [Seal.]"

The defendant took an exception to the following portion of the judge's charge: "Now, the release-if it was signed-is to be considered with reference to those things that are stated therein, or with reference to the circumstances at the time, with a view of determining what the intention was; if it was intended to include anything outside of what is expressed in the release.'

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The plaintiff, who had been a tenant of the defendant, owed him for rent, but there was a dispute as to the amount. The plaintiff also claimed that the defendant had assaulted her. On July 11, 1910, there was a settlement between the parties at which the plaintiff, the defendant, one Cora Stevens (who succeeded the plaintiff as tenant of the defendant), and another person were present. The plaintiff admitted that she sold her furniture to Cora Stevens on that day, but denied that a bill of sale of it to Stevens dated July 11th and the release set forth above were signed by her. The defendant testified "that he did not strike the plaintiff, but that on

JURIES EVIDENCE NEGLIGENCE CON-
TRIBUTORY NEGLIGENCE.

In an action for injuries to a 10 year old boy, who, while riding a wheel, collided with a street car at the foot of a sharp grade, evidence held sufficient to take to the jury the quesboy's due care in seeking to avoid the accident tions of the motorman's negligence and of the in a position of sudden peril.

[Ed. Note.-For other cases,, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 2. STREET RAILROADS (§ 117*)-INJURIES TO BICYCLE RIDER CONTRIBUTORY NEGLI

GENCE.

The fact that a boy who collided with a street car at the foot of a sharp grade was riding a bicycle which had no brake could not be ruled to be negligence as a matter of law. roads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] [Ed. Note.-For other cases, see Street Rail3. STREET RAILROADS (§ 113*)-INJURIES TO BOY-ADMISSIBILITY OF EVIDENCE-WARN

ING.

In an action for injuries to a 10 year old boy, who collided with a street car while riding his bicycle, evidence as to what the boy's mother said to him "quite a while before" as to riding his bicycle on that street might well have been excluded as too remote, especially where the fact that the mother told the boy not to ride down that street was already in evidence, and that was all the defendant was entitled 'to.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 229-238; Dec. Dig. § 113.*]

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