Slike stranica

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-7032, 708-710, 718, 7182; Dec. Dig. § 158.*]


carrier would be liable should be computed on i declaration, the first and second being in the basis of the value of the property (being conversion, and the third and fourth for the bona fide invoice price, if any, to the con- breach of contract. The first and fourth signee) is not invalid, as being contrary to public policy, and is within the principles applica- counts describe the property which is the ble to interstate commerce under federal stat- subject of the action as 1,397 pounds of pisutes. ton packing, 1,553 pounds of hydraulic packing, 757 pounds of mixed packing, and 701 pounds of special packing, while the second and third counts describe the property as 55 bales of rubber packing. At the close of the evidence, the defendant requested that a verdict be directed in its favor on all the evidence and on each of the counts, and made other requests for rulings, all of which were refused. Upon this evidence (which is stated to be all that is material) the court instructed the jury that the plaintiff was entitled to recover, and left for determination by the jury only the fair market value of the goods.

It is only when the contract of carriage is repudiated by the carrier that the limitation as to the value of the goods is abrogated.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. § 156.*]

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Action by William C. Coleman against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant excepts. Exceptions sustained.

Nicholas Samsel, of Boston, for plaintiff. Joseph Wentworth and Edmund S. Kochersperger, both of Boston, for defendant.

[1] 1. The defendant has argued at length that there was no sufficient evidence that this contention is not sound. The plaintiff' the plaintiff was owner of the goods. But was named as consignee in the bill of lading. This was some evidence of title. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 97 N. E. 984, Ann. Cas. 1913A, 1317. Possession of the bill of lading in which the plaintiff was named consignee was at least evidence of right to immediate possession of the goods. The question is not presented whether the contract for the sale of 55 bales of scrap packing was complied with by the delivery of such property as was described in counts one and four. The evidence is not reported on this point, and hence we cannot say that it ought to have been ruled either that the plaintiff was not owner or that the proof did not correspond with the allegations.

RUGG, C. J. This is an action to recover the value of goods. The material facts are that in July, 1909, the plaintiff agreed to purchase from the Lake Shore Rubber Works 55 bales of scrap packing weighing 4,400 pounds, the invoice price being 22 cents per pound. The packing was shipped from the Lake Shore Rubber Works, consignor, from Erie, Pa., to William C. Coleman Company, consignee, Boston, Mass. A bill of lading was issued by the initial carrier and sent by the consignor to the consignee. The consignment reached Boston on July 12th, and the consignee was notified by the defendant, who was the final carrier. Soon after the consignee went to the freight house of the defendant, examined the goods, and on two occasions, the dates of which are not fixed in the report, took samples. On September 20th he paid the freight and storage charges to that date. On November 5th the defendant sent a notice to the plaintiff to the effect that storage charges were running against the consignment, and requesting disposition of the goods. In October, 1909, the consignor drew on the plaintiff by draft on a Boston bank, which was returned to the consignor with notice that the plaintiff was out of the city. On several earlier occasions demand for payment was made on the plaintiff, but he has never pai [4] 3. The question of difficulty is whether for the goods. Late in November, 1909, the the transit was at an end as matter of law, consignor requested the initial carrier to re- so that the vendor's right of stoppage in turn the consignment to it, and on Novem- transitu was gone. The abstract statement ber 29th the defendant on demand by it re- of the law in this particular has been so turned the goods to that carrier, who deliv- thoroughly considered that it is not now ered them to the consignor. In the latter open to doubt. The right of stoppage in part of February or early in March, 1910, transitu is one favored by commercial law. the plaintiff demanded the goods of the de- It endures so long as the goods remain in fendant. There were four counts in the the possession of the carrier by virtue of the

[2, 3] 2. But on the other hand it could not have been ruled as matter of law that the plaintiff was the owner or entitled to possession, which was the effect of the direction of a verdict. The burden of proof in this respect was on the plaintiff. Where one party has the burden of establishing certain facts affirmatively, and a substantial part of the evidence offered is either oral or consists of inferences to be drawn from circumstances it is rarely that it can be ruled as matter of law that the party upon whom rests the burden of proof is entitled to a verdict. The present is not such a case. As the case must go back for another trial we consider such questions as are likely to arise then, which are raised on this record.

acquired the title but not the possession, can be exercised only when the buyer is insolvent. By insolvency in this connection is meant not an adjudication by a court of competent jurisdiction, but simply inability to pay debts in the usual course of business. Such inability need not be absolute. It may be proved as a rational inference from convincing facts and circumstances. A business man in good standing commonly meets his obligations at maturity. A failure to pay a single debt might occur under such conditions as to constitute persuasive evidence of general inability to pay one's debts. Lee v. Kilburn, 3 Gray, 594, 599, 600; Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 12, 13; Peabody v. Knapp, 153 Mass. 242, 26 N. E. 696; Jeffris v. Fitchburg R. R. Co., 93 Wis. 250, 67 N. W. 424, 33 L. R. A. 351, 57 Am. St. Rep. 919; Williston on Sales, § 522, and cases there cited. There were circumstances in the case at bar tending to throw such doubt upon the solvency of the plaintiff as to require the submission of that question to the jury.

contract of carriage and until there has been an actual or constructive delivery to the consignee. No controversy ordinarily can arise when there has been an actual delivery. A constructive delivery may be found when the carrier has recognized the title of the consignee, has attorned to it and has agreed to hold the goods "not merely as carrier or as a warehouseman pending a complete delivery to the purchaser, but as agent for the purchaser under a new contract assented to by both the carrier and the purchaser." Norfolk Hardwood Co. v. New York Central R. R. Co., 202 Mass. 160, 162, 88 N. E. 664; Brewer v. Boston & Albany R. R. Co., 179 Mass. 228, 60 N. E. 548, 54 L. R. A. 435, 88 Am. St. Rep. 375. It was said in Whitehead v. Anderson, 9 M. & W. 518, at pages 534, 535: "Where the carrier enters expressly or by implication into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination pursuant to that contract, but in a new character, for the purpose of custody [8, 9] 5. If upon a new trial it should be on his account and subject to some new or found that the transit had not ended and yet further order to be given to him," then con- the plaintiff was not insolvent so that the structive possession is in the vendee, and vendor had no right of stoppage in transitu, the transit is at an end. To the same point the measure of damages may become importsee Ex parte Cooper, 11 Ch. Div. 68; Bethellant. The bill of lading contained the conv. Clark, 20 Q. B. D. 615; Lyons v. Hoff-dition that "the amount of the loss or nung, 15 A. C. 391, 397.

[5, 6] It could not have been ruled rightly as matter of law that under these principles of law the transit in the case at bar was ended. All that had occurred was the arrival of the goods in Boston and two notices, alike in tenor, sent by the carrier to the consignee, and payment of the charges up to a certain time. It is not certain that the consignee had accepted the goods. After paying the freight charges at least once, if his testimony is taken literally, he had examined the bales for the taking of samples. The purpose of this is not disclosed but it is not inconceivable that it may have been to ascertain whether the goods corresponded with the terms of the contract of sale to him. The payment of freight is not a decisive evidence of the termination of the transit. Naylor v. Dennie, 8 Pick. 198, 19 Am. Dec. 319; Reynolds v. Boston & Maine R. R. Co., 43 N. H. 580.

[7] 4. The question whether the consignor had the right of stoppage in transitu was one of fact upon all the evidence, and not properly one of law. This right of an unpaid vendor to enforce his lien by possessing himself of goods, whereof the purchaser has

damage for which any carrier is liable shall
be computed on the basis of the value of the
property (being the bona fide invoice price
if any to the consignee
*)." It was

a reasonable contract to base the damages to
be recovered in case of loss upon the genuine
and honest invoice price between the parties.
There is nothing contrary to public policy
in such a contract. It comes within the prin-
ciple declared in Bernard v. Adams Express
Co., 205 Mass. 254, 91 N. E. 325, 28 L. R. A.
(N. S.) 293, 18 Ann. Cas. 351, which has been
adopted in Adams Express Co. v. Croninger,
226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314,
as applicable to interstate commerce under
federal statutes.
federal statutes. If the plaintiff at a new
trial shows himself entitled to recover for
breach of the contract to deliver under the bill
of lading he must be limited in damages to
the amount therein stipulated. It is only
when the contract of carriage is repudiated
by the carrier that the limitation as to value
of the goods is. abrogated. McKahan v.
American Express Co., 209 Mass. 270, 95
N. E. 785, 35 L. R. A. (N. S.) 1046, Ann. Cas.
1912B, 612.

Exceptions sustained.

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A legacy to a hospital corporation for a charitable purpose is not vested in the corporation; it never accepting the legacy and waiving its claim thereto.

[Ed. Note.-For other cases, see Charities, Cent. Dig. § 8; Dec. Dig. § 24.*]

Ward v. Ward, 15 Pick. 511, 525. Burr v. Boston, 208 Mass. 537, 538, 95 N. E. 208, 34 L. R. A. (N. S.) 143. So the disposition thereof could not have been determined in the former suit of the Willard Hospital, in which only the assets of the plaintiff in that suit were brought in question. According to the agreement in that suit, the present question properly was left to be passed upon in this proceeding.

and narcomania.

[2] But the legacy did not lapse. It was given to a charitable corporation, which could 2. CHARITIES (§ 47*)-FAILURE OF TRUSTEE. A legacy to a charitable corporation for apply it only for the specific charitable purthe specific charitable purpose for which the pose for which the corporation had been orcorporation was organized, the hospital treat-ganized, the hospital treatment of dipsomania ment of dipsomania, does not lapse because the corporation does not accept the legacy and waives its claim thereto; but the court will direct the payment of the fund to another corporation maintaining a hospital for the treatment of dipsomaniacs, the only one in the [Ed. Note. For other cases, see Charities, Cent. Dig. § 85; Dec. Dig. § 47.*]


Case Reserved from Supreme Judicial Court, Suffolk County.

Petition by Charles C. Read and another, executors of Sarah Elizabeth Read, deceased, against the Willard Hospital and others, for instructions. Case reserved on petition, answers, and agreed statement of facts, for entry of such decree as justice and equity may require. Decree ordered.

Testatrix bequeathed $5,000 to the Willard Hospital for dipsomaniacs and disposed of the residue. The Washingtonian Home, incorporated by legislative act, provides a retreat for inebriates and persons suffering from dipsomania and narcomania and means of reforming them. There is no other charitable corporation doing business in the state for the exclusive purpose of providing a retreat for inebriates and means of reforming them. The Willard Hospital discontinued the treatment of patients, and sold its hospital and most of its real estate to another charitable corporation, and surrendered its certificate of incorporation and was dissolved.

James E. Young, of Boston, for Washingtonian Home. Wheelwright & Codman, Charles S. Rackemann, Ralph W. Dunbar, and F. W. Fosdick, all of Boston, for certain respond


SHELDON, J. [1] The Willard Hospital never accepted this legacy, and now waives its claim thereto. Accordingly the legacy did not vest in it, and never became its property.

and narcomania. It was given, and if accepted would have been taken, in trust for that purpose, just as if it had been so recited in the will. Hubbard v. Worcester Art Museum, 194 Mass. 280, 290, 80 N. E. 490, 9 L. R. A. (N. S.) 689, 10 Ann. Cas. 1025. It was a valid charitable gift; and the only difficulty is that the trustee to which it was given, though in existence at the death of the testatrix, did not accept the trust and has since ceased to exist. All that is necessary is to appoint a new trustee, as in Richards v. Church Home for Orphan & Destitute Children, 213 Mass. 502, 100 N. E. 631.

If the cy près doctrine were to be applied, it might be necessary to remit the case to a single justice or to a master to frame a All the facts scheme. But that is not so. have been agreed; and the case comes before us upon a reservation by the terms of which a proper decree is to be entered. The fund is small, and further expense ought to be avoided. The whole matter should be now determined, as was done in the case last cited.

The purpose for which the Washingtonian Home was established and is carried on, though described in different words, is substantially the same as was that of the Willard Hospital. Apparently it is the only private institution of which that can be said. The testatrix preferred a private institution to be the almoner of her bounty; and as there is no reason to the contrary, we respect her preference.

We see no sufficient reason for not follow

ing the usual rule as to costs and allowances.

A decree is to be entered instructing the petitioners to pay the fund to the Washingtonian Home, to be held by it in trust for the hospital treatment of dipsomania and narcomania.

So ordered.

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

(215 Mass. 27)

of Manuel J. De Avellar and a trust company SUPREME LODGE OF THE PORTUGUESE in which De Avellar during his lifetime had FRATERNITY OF THE UNITED STATES OF AMERICA v. LIBERTY TRUST CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)




Where a lodge treasurer carried the lodge funds on deposit with a trust company mingled with his own, the fact that he by mistake overdrew his account at one time does not amount to a dissipation of the trust fund, where he immediately corrected the mistake by depositing the amount necessary to leave the lodge money intact in the account.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 523, 553; Dec. Dig. § 358.*]

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a deposit account in his own name. The bill
is based upon the theory that this $1,137.27
was the amount of trust moneys belonging
to the plaintiff which it can in fact trace to
the deposit account under the doctrine fully
explained in Hewitt v. Hayes, 205 Mass. 356,
91 N. E. 332, 137 Am. St. Rep. 448.
judge found for the plaintiff, and the case
comes before us on his findings without the
evidence on which they were made.


[1] It appears that De Avellar died on January 1, 1911, and that on October 25, 1910, he overdrew the deposit account in question through a mistake in subtraction in figuring out the amount then on deposit. But the judge found that "as soon as it was discov

2. APPEAL AND ERROR (§ 704*) RECORD ered that he had made the mistake the QUESTIONS PRESENTED FOR REVIEW-FINDINGS OF FACT. preme Judicial Court, the findings of fact by the trial judge are final.

Where the evidence is not before the Su

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. 704.*]

amount was paid by him to the company," and that "there was an intention on his part to replace it, which he had a right to do." We interpret this to be a finding that De Avellar immediately corrected this mistake and deposited to the credit of this account such, sum as was necessary to leave in this account 3. APPEAL AND ERROR (§ 878*)-PARTIES EN- the plaintiff's money intact which up to this TITLED TO ALLEGE ERROR-APPELLEE-AB-time had been in this account untouched. SENCE OF CROSS-APPEAL. That this did not act as a dissipation of the trust fund. Perkins v. Perkins, 134 Mass. 441, is decisive on that point.

An appellee cannot ask that a decree in its favor, and from which it has taken no appeal, be modified, so as to include interest on the amount.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3573-3580; Dec. Dig. § 878.*1

Appeal from Superior Court, Suffolk County; John H. Hardy, Judge.

Action by the Supreme Lodge of the Portuguese Fraternity of the United States of America against the Liberty Trust Company and Anna R. De Avellar. Judgment for the plaintiff, and defendant De Avellar appeals.


Thos. F. Dolan and John J. Cummings, both of Boston, for appellant. Jas. E. Kelley, of Boston, for appellee.

LORING, J. This is a bill in equity brought by a fraternal beneficiary corporation to compel the transfer to it of $1,137.27. The defendants are the executrix of the will

The defendant has argued that De Avellar had no right to correct this mistake because

he was insolvent at the time. As to that it is enough to say that it does not appear that he was insolvent at that time. In fact there is no finding that he was insolvent at any time.

[2] The other contentions argued by the defendant are concluded by the findings of the judge which in the absence of the evidence on which they were made are final.

[3] The plaintiff has asked that the decree be modified so as to give it interest on its money. But the only appeal taken from the decree was taken by De Avellar's executrix. Whether the decree ought to have given the plaintiff interest is not before us.

The decree must be affirmed with costs to be paid by the executrix. So ordered.

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

(179 Ind. 644)

STATE ex rel. REED et al. (No. 21,936.)
(Supreme Court of Indiana. June 6, 1913.)

Appellant's failure either to set out in his
briefs a copy of the demurrer addressed to the
complaint or to state the substance thereof op-
erates as a waiver of any question arising out
of the trial court's ruling on the demurrer.
[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. § 3092; Dec. Dig. $ 757.*]

Assignments that "the court erred in rendering judgment on the pleadings" and that "the judgment is contrary to law" are too general to present any case for consideration. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. § 733.*]



A complaint sufficient to bar another action for the same cause is good as against an attack made for the first time on appeal.

other part which was past due, and the first payment of which had been demanded, show that the final claim was divisible and that action was taken on several items thereof as they were approved by the architect.

[Ed. Note.-For other cases, see Mandamus,
Cent. Dig. §§ 296-316; Dec. Dig. § 154.*]


A judgment on the pleadings cannot be entered where there is an issue of fact framed thereby or where there is a general issue un



[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1048-1051; Dec. Dig. § 343.*] 9. PLEADING (§ 120*)—ANSWER-SUFFICIENCY An answer which denies "each and every material allegation of the complaint" is good although it is better form to omit from it the word "material."

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 244, 253, 254, 257, 258; Dec. Dig. § 120.*]

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Mandamus by the State, on relation of

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 52, 66-74; Dec. Dig. § 34.*1 4. APPEAL AND ERROR (§ 960*)-REVIEW-DIS-John Wesley Reed and Edwin Bump, doing CRETION OF TRIAL JUDGE-MOTION TO MAKE PLEADING MORE SPECIFIC.

The refusal of a motion to make a pleading more specific is so far within the discretion of the court that on appeal a reversal on that ground will not follow unless the rights of the complaining party have suffered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832-3834; Dec. Dig. 960.*]

A writ of mandamus will lie to compel a
board of county commissioners to take action
on a claim against the county properly present-
ed to the board.

[Ed. Note. For other cases, see Mandamus,
Cent. Dig. §§ 211-216; Dec. Dig. § 101.*]

business under the firm name and style of the Reed-Bump Construction Company, against the Board of Commissioners of Lake County. Judgment for relators, and the Board appeals. Reversed.

J. Frank Meeker, of Crown Point, for appellant. William J. Whinery, of Hammond, for appellees.

SPENCER, C. J. Action by appellees to mandate appellant to allow or disallow a balance claimed by appellees to be due them on a contract for the construction of a cer

tain public building. Issues were joined on denial and two paragraphs of affirmative appellees' complaint and appellant's general answer. Appellees then moved for a judgment in their favor on the pleadings, which

Except as to cases arising under Burns' Ann. St. 1908, § 5956, providing that, where the claim is filed with the county commission-motion was sustained and this appeal taken. ers upon a contract for work to be conducted under the supervision of any architect appointed by the board, it shall not allow such claim until the architect has certified that the work has been performed according to the contract and that the amount of the claim is due and owing, it is the rule that, when a board of county commissioners has taken jurisdiction over a claim and has acted on it in whole or in part, its jurisdiction therein is ended, and the aggrieved party has its choice to appeal to the circuit court or to bring an independent action against the county.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 8, 9-34; Dec. Dig. §§ 3, 4.*]


[1] Appellant has failed either to set out in its brief a copy of the demurrer which was addressed to appellees' complaint or to state the substance thereof, and any question arising out of the trial court's ruling on such demurrer is therefore waived. Chicago, etc., R. Co. v. Walton, 165 Ind. 253, 74 N. E. 1090; Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869, 6 Ann. Cas. 607; Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183.

7. MANDAMUS (§ 154*)-PLEADING-DIVISI-in rendering judgment on the pleadings" and [2] The assignments that "the court erred Where a building contract provided that that "the judgment is contrary to law" are partial payments should be made to the contrac- too general to present any question for tor on claims filed by him as the work progress our consideration. Seisler v. Smith, 150 Ind.. ed, and the statute (Burns' Ann. St. 1908, § 5956) required that, before the county board 88, 46 N. E. 993; McGinnis v. Boyd, 144 should act thereon, the supervising architect Ind. 393, 42 N. E. 678; Clayton v. Blough, must certify to the correctness thereof, allega- 93 Ind. 85. The only assignments properly tions that the commissioners allowed certain payments and a part of the claim for the bal- presenting any question for review are as ance due and refused to allow or disallow the follows: (1) Appellees' complaint does not

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

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