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ligence and plaintiff's contributory negligence to | setting of it either as a part of the work of the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050. 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*1 Exceptions from Superior Court, Hampden County; W. P. Hall, Judge.

Action by James C. Generous against William W. Hosmer. Judgment for plaintiff, and defendant brings exceptions. Overruled. R. J. Morrissey and J. L. Gray, both of Westfield, for plaintiff. F. W. Burke and F. A. Ballou, both of Westfield, for defendant. MORTON, J. This is an action of tort to recover damages for personal injuries received by the plaintiff in consequence, as alleged, of the defendant's negligently suffering "a large and heavy plate glass incased in a wooden box to fall upon the leg and foot of the plaintiff." Specifications were filed by the plaintiff alleging that the defendant did not furnish suitable instrumentalities

and appliances for safely unloading the box, and did not properly manage the instrumentalities and appliances furnished in that he manipulated certain guy ropes in such a manner as to allow the box to fall and injure the plaintiff. 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 requested.

[1] The accident occurred while the plaintiff and defendant and a man by the name of Barr and another by the name of Loomis and an expressman were unloading the box at a block belonging to the defendant where the glass was to be set. The defendant was under no duty to the plaintiff to furnish suitable instrumentalities and appliances for unloading the box unless the relation of master and servant existed between him and the plaintiff. And the first question is whether there was evidence warranting a finding that such relation existed. We are of opinion that there was. The plaintiff was in the general employ of one Green, a contractor and builder, under whom he had been working on the block which the defendant was repairing and changing and in the front of which the glass was to be set. The plaintiff was not at work on the block at the time of the accident, but in another place from which pursuant to a previous conversation of the defendant over the telephone with Green, as could be found, the defendant procured the plaintiff and a fellow workman to come to the block to assist him in unloading the glass. The defendant bought the glass and arranged with the expressman for its delivery at the block, and there was nothing to show, or at least there was evidence warranting a finding that there was nothing to show that Mr. Green had anything to do with the purchase of the glass or with the

repairing and changing the block or other-
wise. There was testimony from the plain-
tiff and others, that the defendant took
charge of and directed the manner in which
the box should be unloaded, and from this
and other evidence it could be found that
for the time being the relation between the
defendant and the plaintiff was that of mas-
There was evidence of a
ter and servant.
contrary nature. According to the testimony
of the defendant, the plaintiff himself direct-
ed and controlled the manner in which the
box was unloaded, and it was due to what he
did or directed to be done that the accident
happened. But the question just what was
the relation between the plaintiff and the
defendant, was, we think, one for the jury
the refusal to give the rulings requested, no
under suitable instructions, and, except for
fault is found with the instructions that
were given.

[2] The fact that the plaintiff was paid by Green and not by the defendant for the time occupied in unloading the box is not conclusive on the question whether the relation of master and servant did or did not exist between the defendant and the plaintiff. It is one circumstance to be considered, but the test ordinarily is one of direction and control. Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Berry v. N. Y. C. & H. R. R. R., 202 Mass. 197, 88 N. E. 588.

We are also of opinion that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that it could not be ruled as matter of law that he assumed the risk or that the defendant was not negligent.

[3] The plaintiff was a carpenter and was not accustomed to unload glass and objected to having anything to do with unloading the box when asked by the defendant to help him. He cannot be said to have been wanting in due care because he undertook to assist the defendant in unloading the box. There was nothing dangerous per se in work of that nature; and being, as there was evidence tending to show that he was, under the supervision and control of the defendant, he naturally would expect to be governed by his directions even though they might not in all respects commend themselves to his own judgment. In addition to that he would have a right to rely to some extent at least upon his superior. To what extent he could properly do so it would be for the jury to say, and it could not therefore have been ruled as matter of law that he was wanting in due care or that he assumed the risk. Sanders v. N. Y. C. & H. R. R. R., 212 Mass. 269, 98 N. E. 927. He could not be held as matter of law to have assumed the risk or to have been wanting in due care by continuing to assist under the direction of the de

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

fendant in co-operation with others who were there, in unloading the box with such appliances as were there. Whether he was or was not in the exercise of due care and assumed the risk in helping to unload the box with the appliances that were there and with the number of men who were there, and in the manner directed by the defendant, if the defendant did direct, was for the jury.

[4] Neither could it be ruled as matter

The

able without being set up in the answer; it being not matter in avoidance, or an independent substantive matter of defense, but a denial of any cause of action.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 155, 176, 507-510; Dec. Dig. § 84.*]

Exceptions from Superior Court, Berkshire County; George A. Sanderson, Judge.

Action by William H. Rockwell and another, executors of Rosella A. Rockwell, deceased, against William T. Furness. Verdict was directed for defendant, and plaintiffs bring exceptions. Exceptions overruled.

Warner & Barker, of Pittsfield, for plaintiffs. Brown & Came, of Boston, for defendant.

of law that there was no evidence of negligence on the part of the defendant. jury could have found, and for aught that appears they did find, that the appliances furnished by the defendant were insufficient and also that there were not men enough. There was evidence tending to show that the defendant ordered of the express company two extra men with planks and rollers to SHELDON, J. The plaintiffs seek to reaccompany the wagon containing the box and cover on the ground that the defendant falsethat they were not with it when it came, and ly represented to Rosella A. Rockwell, their that the defendant proceeded to unload the testatrix, or rather to her agent, in her lifebox without them. There was also evidence time, that he had authority to settle her tending to show that he had been told by claims against certain insurance companies Mr. Green that it "would take six good men" for the loss by fire of her property upon to unload the glass; that there were no which those companies had issued to her polbraces there to keep the box upright; that the icies of insurance against fire, or upon failmethod which was used of keeping it upright ure to make such settlements with her that with ropes or guys was insecure; and that he had authority to sign a "reference paper" Barr should not have been directed, as there in the name of each of the companies. They was evidence tending to show that he was by claim that their testatrix and her agent, bethe defendant, to leave the place where he lieving these representations and relying was at the rear end of the glass. From this thereon, failed to notify the insurance comand other evidence the jury were well war-panies of the loss that had occurred, and so ranted in finding that the defendant was neg-lost her remedy against the companies. Rockligent. well v. Hamburg-Bremen Fire Ins. Co., 212 Mass. 318, 98 N. E. 1086.

It follows from what we have said that the rulings requested were rightly refused. Exceptions overruled.

(215 Mass. 557)

ROCKWELL et al. v. FURNESS. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 21, 1913.)

1. ABATEMENT AND REVIVAL ($ 58*)-DEATH oF PARTY-FRAUD.

A cause of action for misrepresentations, in reliance on which deceased lost her remedy for a loss under a fire policy, not being within the causes enumerated by Rev. Laws, c. 171, § 1,

does not survive her death.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 294-309; Dec. Dig. § 58.*]

2. ABATEMENT AND REVIVAL (§ 72*)-DEATH OF PARTY-REVIVAL BY ACTS OF EXECUTORS.

A cause of action for misrepresentations, in reliance on which testatrix lost her remedy for a loss under a fire policy, being one which did not survive her death, could not be revived by her executors spending money in the prosecution either of an action thereon or of an action

brought by testatrix on the policy.

[Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. §§ 377-402, 412-416; Dec. Dig. § 72.*]

3. ABATEMENT AND REVIVAL (§ 84*)-NECESSITY OF PLEADING.

Objection that the cause of action did not survive the death of plaintiffs' testatrix is avail

[1] If we assume everything else in favor of the plaintiffs, it yet remains true that the remedy of the testatrix for the tort of the defendant could be enforced only in her lifetime; it did not survive her death. R. L. c. 171, § 1. As was said in Jenks v. Hoag, 179 Mass. 583, 586, 61 N. E. 221: “It has been decided repeatedly that 'a mere fraud or cheat by which one sustains pecuniary loss cannot be regarded as a damage done to personal estate.' Leggate v. Moulton, 115 Mass. 552, and cases there cited. See, also, Cutter v. Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A. 429. The statute was 'intended to give a remedy which should survive only for injuries of a specific character to real or personal estate.'" There is nothing to help the plaintiffs in Parker v. Simpson, 180 Mass. 334, 343, 62 N. E. 401; Von Arnim v. American Tube Works, 188 Mass. 515, 519, 520, 74 N. E. 680; Batty v. Greene, 206 Mass. 561, 564, et seq., 92 N. E. 715; or Lovejoy v. Bailey, 214 Mass. 134, 154, 101 N. E. 63. See, also, Dixon v. Amerman, 181 Mass. 430, 63 N. E. 1057.

[2] If the plaintiffs since the decease of their testatrix have, in reliance upon the same representations of the defendant, spent money in the prosecution either of this suit

or of the suits brought by her against the insurance companies, this could not revive the lapsed cause of action. They were bound to know that it did not survive.

[3] Nor can we doubt that this objection was available to the defendant without having been set up in his answer. It was not matter in avoidance, or any independent substantive matter of defense, but a denial of any right of action. The record showed that the court had no jurisdiction of the case; and it followed that the plaintiffs' evidence showed no right of action, nothing that the defendant was called upon to answer. Hey v. Prime, 197 Mass. 474, 475, 84 N. E. 141, 17 L. R. A. (N. S.) 570; Keating v. Boston Elev. Ry., 209 Mass. 278, 281, 282, 95 N. E. 840. Exceptions overruled.

(215 Mass. 554)

SCANLON v. BERKSHIRE ST. RY. CO. EAGAN v. SAME.

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

1. NEGLIGENCE (§ 135*) - EVIDENCE TO SusTAIN VERDICT.

Where the facts which the testimony would warrant the jury in finding are equally consistent with an inference of plaintiff's due care or of his negligence, nothing remains except mere conjecture, and a verdict for plaintiff cannot be sustained.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 274-276; Dec. Dig. § 135.*] 2. STREET RAILROADS (§ 98*)-CONTRIBUTORY NEGLIGENCE.

A traveler on the public ways, whether on foot or driving a team, while required to act with reasonable prudence, has the right to presume to some extent that the motorman of an electric car will take ordinary precautions at intersecting streets to avoid collisions.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*] 3. STREET RAILROADS (§ 117*)-PERSONAL INJURIES-QUESTION FOR JURY.

Actions by Owen E. Scanlon, administrator, and by Martin E. Eagan against the Berkshire Street Railway Company. Judgment for plaintiffs, and defendant excepts. Exceptions overruled.

Charles H. Wright, of Pittsfield, for plaintiffs. Henry W. Ely and Jos. B. Ely, both of Springfield, for defendant.

BRALEY, J. [1-3] The exceptions to the admission of evidence having been waived, the defendant's sole contention is that there was no proof of the decedent's due care. It appears that after the accident he never recovered consciousness, and his conduct must be determined from the recollection of eyewitnesses, and the attendant circumstances. If the facts which the testimony would warrant the jury in finding are equally consistent with an inference of his due care, or of his negligence, nothing remains except mere conjecture, and the verdicts cannot be sustained. French v. Sabin, 202 Mass. 240, 88 N. E. 845; Taylor v. Pierce Bros., 213 Mass. 247, 100 N. E. 361. A traveler on the public ways, whether on foot or driving a team as in the case at bar, while required to act with reasonable prudence, has the right to rely to some extent on the presumption that the motorman operating an electric car will take ordinary precautions at intersecting streets to avoid collisions. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396; Horsman v. Brockton & Plymouth St. Ry., 205 Mass. 519, 91 N. E. 897; Nelson v. Old Colony St. Ry., 208 Mass. 159, 94 N. E. 313; Foster v. Boston Elev. Ry., 214 Mass. 61, 100 N. E. 1039.

The jury could have found that not only was the decedent a careful teamster of large experience thoroughly familiar with the streets of the city, the regulation of traffic, and the operation of cars therein, but as he came through the cross street with the team moving slowly, and passed over the crosswalk, the car from which the motorman had an unobstructed view of the track for 1,000 feet was being driven in violation of a city ordinance at an excessive rate of speed. As he drove over the crosswalk one of the plaintiff's witnesses saw him look toward the ap

Where it appeared that deceased was a careful teamster of large experience, familiar with the streets of the city and the operation of cars therein, that as he drove slowly from a cross-street over the crosswalk the defendant's motorman had an unobstructed view of the street for 1,000 feet, that the car was running at an excessive speed in violation of a city ordinance, and that deceased looked toward the car when it was 400 feet away, but did not look again until just before the collision, his contributory negligence in not look-proaching car which then was not quite 400 ing again was for the jury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. 8 117.*]

4. STREET RAILROADS (§ 117*)-COLLISIONQUESTION FOR JURY.

The question whether deceased, driving a team in a city, in crossing a street car track, might rely upon the speed of the car being slackened, the street being one where there was always a great deal of travel, was for the jury.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. &$ 239-257; Dec. Dig. § 117.*] Exceptions from Superior Court, Berkshire County; George A. Sanderson, Judge.

feet distant, although he did not look again. until shortly before the collision, when the car struck the wagon after the horses had nearly if not quite gone over the track. It was a question for the jury under these conditions whether the decedent, who was not called upon to anticipate an unreasonable or unlawful rate of speed, saw the car when he first looked, and judged by the conduct of the ordinarily prudent man similarly situated was justified in proceeding, or whether he should have looked again, as well as whether he properly could rely upon the speed of the car being slackened in a street

shown by the evidence to have been subjected constantly to a large amount of public travel. Jeddrey v. Boston & Northern St. Ry., 198 Mass. 232, 84 N. E. 316; Horsman v. Brockton & Plymouth St. Ry., 205 Mass. 519, 91 N. E. S97; O'Brien v. Lexington & Boston St. Ry., 205 Mass. 182, 184, 185, 91 N. E. 204; Farris v. Boston Elev. Ry., 210 Mass. 585, 96 N. E. 1098.

[4] The jury furthermore from their common experience properly could infer, under the circumstances, that he did not intend deliberately to expose himself or his employer's property to the chance of injury by attempting to pass in front of an oncoming car, if its proximity was such, that a collision appeared to be unavoidable. Prince v. Lowell Elec. Light Corp., 201 Mass. 276, 281, 282, 87 N. E. 558, and cases cited; Berry V. Newton & Boston St. Ry., 209 Mass. 100, 103, 95 N. E. 95. The ruling requested was properly refused, and the exceptions must be overruled.

So ordered.

(216 Mass. 61)

v.

SWAN v. TAPLEY et al. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 22, 1913.) APPEAL AND ERROR ( 151*)-RIGHT OF APPEAL-PARTY AGGRIEVED.

Since a wife's undivided interest in property inherited from her father is her separate estate, in which her husband has no vested interest, he is not a "party aggrieved" by a decree of partition of such property, and he was therefore not entitled to appeal therefrom.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 947-952; Dec. Dig. § 151.*]

Appeal from Supreme Judicial Court, Hampden County.

Petition by Frederic R. Swan for partition against George K. Tapley. From a final decree awarding partition, George K. Tapley appeals. Dismissed.

(215 Mass. 545)

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

1. WILLS (§ 634*) - CONSTRUCTION-VESTED REMAINDER.

A will devising and bequeathing all testator's property to a church, after certain life estates provided for, gives it a vested remainder.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 2. PERPETUITIES ($, 4*) — REMAINDER - PostPONEMENT OF ENJOYMENT.

A remainder given by will, vested in interest on the death of testator, does not become invalid merely because the right to actual possession and enjoyment may be postponed to a time beyond that limited by the rule against perpetuities.

Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] [Ed. Note.-For other cases, see Perpetuities,

3. PERPETUITIES (§ 4*) - DURATION OF LIFE ESTATE.

The rule against perpetuities is not offended by the fact that a life estate devised to the children of B., to commence on the death of B. and another, to whom a prior life estate is devised, may last beyond a life or lives in being and 21 years, reckoned from the death of testator.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]

4. WILLS (§ 853*)-REMAINDER-TIME OF POS

SESSION.

If B., to whose children a life estate is devised, to commence on termination of the life estate previously devised to B. and another, should have no children, this would merely accelerate the coming of a church into possession of the remainder devised to it on death of the survivor of all the life tenants.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1939-1944; Dec. Dig. $ 853.*]

Case Reserved from Supreme Judicial Court, Worcester County.

Petition by Rufus B. Dodge, administrator with the will annexed, against Florence E. T. Bennett and others, brought to the probate court, for construction of the will of deceased, and for instructions. From the decree of the probate court, said Bennett appealed to a single justice, who reserved the Green & Bennett, of Springfield, for appel-case for the full court. Decree affirmed. lant. Jas. G. Dunning, of Springfield, for appellee.

SHELDON, J. The appellant had no real interest in the proceedings, and was not a proper party thereto. He was not aggrieved by the decree. Potter v. Wheeler, 13 Mass. 504, 506. His wife's undivided interest, as one of her father's heirs, in the property of which partition had been sought, was her separate property, and he had no vested interest therein. Harrington v. Harrington, 13 Gray, 513, 74 Am. Dec. 648; Fales v. Fales, 148 Mass. 42, 19 N. E. 6; Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427. The decree dismissing the appeal must be affirmed. So ordered.

Arthur S. Houghton, of Worcester, for appellant. Henry F. Harris, of Worcester, for respondent. W. J. Taft, of Worcester, for petitioner.

SHELDON, J. [1-4] Under the will of Thomas Talbot, all his property real and personal, after certain life estates provided for, was devised and bequeathed to the First Universalist Church of Worcester. This gave to that church a vested remainder. Busworth v. Stockbridge, 189 Mass. 266, 75 N. E. 712. Being vested in interest upon the death of the testator, it does not become invalid merely because the right to actual possession and enjoyment may be postponed to a time beyond that limited by the rule

that a person to whom a debt is due for labor Under Rev. Laws, c. 197, § 1, providing or materials used in the erection, repair, or removal of a building shall have a lien upon the building and upon the interest of the owner in right to have a lien attaches to the entire inthe lot of land upon which it is situated, the terest of the owner in the land, and not merely to the part on which it stands.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 310-314; Dec. Dig. § 182.*]

4. MECHANICS' LIENS (§ 183*) - SCOPE OF LIEN-AMOUNT OF LAND.

Where the owner of a house, upon which plaintiff had performed labor, owned a large tract of land, which was intended to be subdivided into lots, the intention of the owner as to the division of the property into lots was decisive as to the amount of land to which a lien for work upon the house would attach. Liens, Cent. Dig. §§ 315-322; Dec. Dig. § [Ed. Note.-For other cases, see Mechanics' 183.*]

against perpetuities. Gray v. Whittemore, | 3. MECHANICS' LIENS (§ 182*)-RIGHT TO 192 Mass. 367, 373, 374, 78 N. E. 422, 10 L. LIEN-SCOPE OF LIEN. R. A. (N. S.) 1143, 116 Am. St. Rep. 246. There is no ground upon which the final limitation to the church can be declared void. There could be no contention to the contrary unless some of the prior limitations to tenants for life are invalid, even if such a contention could be made at all. See Gray's Rule Against Perpetuities, § 251 et seq., and the cases there collected. These prior limitations are, first, that a life estate is given to the testator's widow and his adopted daughter jointly. This of course was valid. Upon the death of both of these beneficiaries, the property by the next limitation was to go to the children of Mrs. Bennett for their lives and the life of the survivor. As this limitation must take effect, if at all, upon the death of Mrs. Bennett, its validity cannot be doubted. These last life estates, if they come into existence, may last beyond the period limited by the rule, of a life or lives in being and 21 years thereafter reckoned from the death of the testator. This, however, would not avoid them after they once had taken effect. Gray v. Whittemore, 192 Mass. 367, 372, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246. If Mrs. Bennett should have no children, and so if these secondary life estates never should come into being, this would simply accelerate the coming of the church into possession of the estate devised to it in remainder. Dow v. Doyle, 103 Mass. 489.

It cannot now be said that Mrs. Bennett may not have children surviving her.

As no other objections to the decree of the probate court have been taken, that decree must be affirmed.

[blocks in formation]

5. MECHANICS' LIENS (§ 280*)—ESTABLISH

MENT-SCOPE OF LIEN.

Where the owner of a house upon which a lien was sought owned a large tract of land, dence of his staking off various lots, together which he intended to subdivide into lots, eviwith his statement of intention, must be considered in determining how much land surrounding the house was subject to the lien. Liens, Cent. Dig. §§ 557-563; Dec. Dig. §

[Ed. Note. For other cases, see Mechanics'

280.*]

6. MECHANICS' LIENS (§ 279*) — ESTABLISH

MENT-BURDEN OF PROOF.

A party seeking a mechanic's lien has, where objection is made to the sufficiency of his of the land sought to be charged, the burden of statement of the days of labor and description showing that it is sufficiently accurate for identification, and therefore is sufficient under Rev. Laws, c. 197, §§ 6, 7.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 555, 556; Dec. Dig. § 279.*1

7. APPEAL AND ERROR (§ 1010*)-REVIEW OF COURT'S FINDINGS.

In a proceeding on a petition to establish a mechanic's lien, where the trial court found that the lien statement was incurably defective, in that the property was not sufficiently described, and that it was not through inadvertence that the labor account was not stated with sufficient exactness, the finding, when supported by some evidence, will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*]

Exceptions from Superior Court, Hampden County; Charles F. Jenney, Judge.

Proceeding by William F. Donnelly against Charles E. Butler and others for the enforceThere was a ment of a mechanic's lien. verdict for defendants, and plaintiff excepted. Exceptions overruled.

Under Rev. Laws, c. 197, § 6, requiring the statement for a mechanic's lien to set forth the number of days of labor performed or furnished, M. B. Houlihan and Jas. H. Loomis, both a statement for "labor from July 9 to December of Chicopee, for petitioner. Harlan P. Small, 17, 1909," is on its face defective; a strict of Springfield, for respondents.

compliance with the statute being necessary.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 234-236; Dec. Dig. § 139.*]

BRALEY, J. [1-3] The petitioner's agreement made with the principal contractor

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