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"Every person owning real estate upon any, its expense, might be included as a part of street in which any drain or sewer may be laid the cost. under or by virtue of this act, and upon the line thereof, or whose real estate may be benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure of the city for drains and sewers."

[2] Undoubtedly the mayor and aldermen could include as proper items of the cost of construction such incidental expenses as engineering and clerk hire, necessary for the performance of the work. In our opinion there is no reason in principle for excluding

It was said by this court in Clark v. Wor- these items merely because the city employed cester, 125 Mass. 226, 232:

* The assessment under section 4' is an assessment, upon the several classes of estates, of a proportionate share of the expenditure of the city for drains and sewers, and not an assessment for the particular benefit derived by any estate from any particular sewer. It is not based upon the peculiar and special

benefits of each estate."

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And see Butler v. Worcester, 112 Mass. 541; Workman v. Worcester, 118 Mass. 168. In Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232, 234, 65 N. E. 40, 41 (59 L. R. A. 728), where the statute was given a more restricted interpretation, it was said: ** When the Legislature has contemplated a certain region and may be supposed to have acted in view of a specific scheme, there is no doubt that within reasonable limits it may determine that the cost of an improvement shall fall upon a designate district and may fix the principles upon which the cost shall be apportioned. [Citing cases.] It may deal with the whole improvement as a unit and charge those assessed with a share of the total expense."

And (182 Mass. 235, 65 N. E. 42, 59 L. R. A. 728):

the men to attend to this and other similar
work. In view of the finding for the defend-
ant, we assume that the "other ordinary and
usual overhead expenses of the sewer depart-
ment" included in the cost, embrace only nec-
essary expenses
expenses actually connected with
these particular sewers, and such as unques-
tionably would be proper elements of the
cost of construction if employed and provid-
ed for this work alone. Where the actual
time devoted by these employés to the work
in question is determined, the proportion
which the time so spent bears to the whole
time from which these employés are paid can
be easily computed. The weight of authori-
ty seems to be in favor of this view. In re
Petition of Lowden, 89 N. Y. 548; Gibson v.
City of Chicago, 22 Ill. 566; Burns v. City
of Duluth, 96 Minn. 104, 104 N. W. 714;
Stow v. Kingston, 39 App. Div. 80, 56 N. Y.
Supp. 606. Contra, see Longworth v. City
of Cincinnati, 34 Ohio St. 101. And see
Smith v. City of Portland, 25 Or. 297, 35

Pac. 665.

Accordingly we are of opinion that there was no error in the refusal of the court to give the ruling requested in the case of the Armandale street sewer, and none in the refusal to give the second and third rulings requested in the case relating to the Apricot street sewers.

"When the Legislature has determined that the cost or a proportion of it shall be thrown upon a designated region, the determination must be assumed to have been reached on constitutional principles, unless the court can see that it was unreasonable. On that assumption the right of individual owners within the designated region is narrowed. When they go before a jury they may contest the apportionment, but they cannot show that they have received no benefit at all. That the Legislature has de-Two conduits were laid, one for house sew

cided."

To what extent the petitioner under this particular statute can inquire into the amount his land was benefited need not now be determined. We assume that he has a right to question the items of "expenditure of the city for drains and sewers." It is plain, however, that the use of an excavating machine is a proper item of expense, and the fact that it was hired from another department of the city is immaterial, in view of the finding that no more than a fair price was charged for its use in the work on these sew

In principle this is within the decision of Corcoran v. Cambridge, 199 Mass. 5, 85 N. E. 155, 18 L. R. A. (N. S.) 187, where the validity of an assessment of the expenses of watering streets was in issue. It was there held that the value of the water furnished by the city from its aqueduct, maintained at

[3] In the petition to revise the assessment for the sewers laid in Apricot street, there exists another question raised by the petitioner's first and fourth requests for rulings. The land of the petitioner admittedly is within the taxing district of these sewers.

age and the other for drainage of underground and surface water. Even assuming it to be material that the petitioner does not now need the surface water conduit for the drainage of his land, the auditor has found that the benefit to the land by the construction of said sewer "equals or exceeds the amounts of said assessments, and that said premises can be connected with said sewer.” The fact that the city authorities saw fit to construct separate conduits to carry house sewage and surface water rather than to use one large conduit for both, plainly does not invalidate the assessment. The city had adopted this general plan for its sewage system at a time prior to the construction of the Apricot street sewer; and the auditor expressly finds that "these two conduits constituted, together, one system of drainage and sewage disposal.”

(125 N.E.)

136(22) - CONDITION OF STORE BUILDING QUESTION FOR JURY.

[4] The petitioner now questions the va-12. NEGLIGENCE lidity of this assessment because of the auditor's finding:

"That the city of Worcester is required by law to purify its sewage before turning the same into the Blackstone river, and that said dual system of sewers was adopted as a measure reasonably necessary to so purify the sewage."

In an action against a storekeeper for inevidence of defendant's negligence held insuffijuries by tripping over a wire mat near the exit, cient to go to the jury.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Presumably the auditor referred to St. Action by Helen J. Downing against the 1886, c. 331, although it is not mentioned. That act authorized and required the city of Jordan Marsh Company, resulting in a diWorcester to purify the sewage discharged rected verdict for defendant.

On report to

Herbert A. Kenny, of Boston, for plaintiff. Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone and Gay Gleason, both of Boston, of counsel), for defendant.

CARROLL, J. The plaintiff went to the defendant's store accompanied by her aunt, who intended to buy "some wings for a hat that * * * [the plaintiff] was to make." As they were leaving the store the plaintiff tripped on a wire mat near the exit on Summer street and was injured. The judge directed the jury to return a verdict for the defendant and reported the case.

into Blackstone river through Mill brook the Supreme Judicial Court. Judgment orunder the authority of the 1867 statute. As dered for defendant. interpreted in Harrington v. Worcester, 186 Mass. 594, 72 N. E. 326, the 1886 act was "a measure in the interest of the general public looking particularly to the protection of the health of the people living near the Blackstone river," and in carrying out this public duty the city of Worcester acts, in part at least, as an agency of the government. See, also, Rome v. Worcester, 188 Mass. 307, 74 N. E. 370. Whether the city has power to levy an assessment for expenditures incurred in carrying out this act need not be considered. As we construe the record in these cases no attempt was made to levý assessments under the 1886 statute. Those here in question were levied under St. 1867, c. 106; the petitions are expressly brought under section 4 of that act; and the brief of the petitioner begins with the statement that the petitions were brought to revise assessments laid "under the aforesaid act" of 1867. Nor can we assume that the city authorities included in these assessments any elements of expenditure that in fact were incurred in carrying out the requirements of the 1886 statute. As already stated, the two conduits constituted a single system of drainage and sewage disposal, and the work done in Apricot street was in accordance with the general plan adopted by the city for the construction of its sewers.

No error is disclosed in the refusal of the trial judge to rule as requested by the petitioner. In each case the entry must be: Exceptions overruled.

(34 Mass. 159)

DOWNING v. JORDAN MARSH CO. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 28, 1919.)

1. NEGLIGENCE 48-CARE AS TO INVITEE

WITHOUT KNOWLEDGE OF DEFECT.

A storekeeper is not guilty of negligence as to one coming on the premises under an implied invitation, because one edge of a wire mat near the exit is lifted out of a groove, and because the mat is humpy, unless he knew it, or might have known of it by the use of reasonable

care.

There was evidence that the mat was about

three feet wide and about four or five feet long, set in a "groove about an inch wide"; that the edge of the mat was above this groove and the plaintiff tripped on the edge where it sets in"; that the mat was "humpy of the mat, "which was a little higher than and badly curled," and there was a "bulge”

in it.

[1, 2] If the plaintiff came to the defendant's premises under an implied invitation, as distinguished from a mere license, to recover she must show that the defendant was negligent. Assuming but not deciding that the mat was defective, it did not appear for how long a time it had been so, or that the defendant or its servants knew, or might have known, of it by the use of reasonable care. If the plaintiff fell because she tripped against the edge of the mat which was lifted out of the groove, there is nothing in the evidence to show what caused this condition, or for how long a time it had existed prior to the plaintiff's injury. There was, therefore, no evidence that the defendant was negligent. Douglas v. Shepard-Norwell Co., 217 Mass. 127, 104 N. E. 491; Kelley v. W. D. Quimby & Co., 227 Mass. 93, 116 N. E. 409; Hathaway v. Chandler & Co., 229 'Mass. 92, 118 N. E. 273; Zugbie v. J. R. Whipple Co., 230 Mass. 19, 119 N. E. 191.

The case at bar is to be distinguished from Wheeler v. Sawyer, 219 Mass. 103, 106 N. E. 592, Nye v. Louis K. Liggett Co., 224 Mass. 401, 113 N. E. 201, and Toland v. Paine Furniture Co., 179 Mass. 501, 61 N. E. 52. In

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

ing as to the length of time she then intended to stay away from her husband. She went to the house of relatives where she remained with her child about twelve days. She was then examined by physicians and on February 25, 1913, was adjudged to be insane and committed to an asylum where she has since been confined without having regained sanity.

the first of these cases the brass binding on | The trial judge was unable to make any findthe edge of the step near the top of a flight of stairs was worn and defective. In Nye v. Louis K. Liggett Co. a weighing machine was placed by the defendant in a position too near the door to permit customers to leave the store in safety; and it was found that the defendant, in the exercise of due care, should have discovered the probable danger. In Toland v. Paine Furniture Co. there was evidence that the mats were made of poor material and much worn, and were in this condition for two or three months prior to the accident.

The verdict for the defendant was directed rightly. According to the terms of the report, judgment is to be entered for the defendant.

So ordered.

(234 Mass. 250)

HARTWELL v. HARTWELL.

(Supreme Judicial Court of Massachusetts. Middlesex. Dec. 10, 1919.)

[1, 2] The ruling that the libel must be dismissed was right. It is provided by R. L. . c. 152, § 1, that "a divorce may be decreed for ** utter desertion continued for three consecutive years next prior to the filing of the libel." These words ac cording to their natural significance import not only a sane mind in determining upon the initial act of cessation of cohabitation but a persistent and rational abnegation of the duties and obligations of marriage for the required period. They demand not only intelligence in deciding upon original separation but also understanding and capacity to apprehend during the entire term specified in the statute. There must be a conscious voli

1. DIVORCE 43-ACT OF INSANE SPOUSE NO tion to continue the desertion throughout the

GROUND.

period, unaffected by lunacy. One of the objects of the establishment of a substantial time of desertion as a prerequisite for maintenance of a libel for divorce on that ground is to enable the offending party to re43-NO ACTIONABLE DESERTIONpent and return to the matrimonial home, and

An act which if performed by a normal person would be ground for divorce affords no justification for dissolving the marriage bond if committed by an insane person. 2. DIVORCE

BY INSANE WIFE.

A husband cannot secure divorce from his wife for her desertion of him for three consecutive years next prior to filing of libel under Rev. Laws, c. 152, § 1, where the wife during the period of desertion was sane for only a few weeks.

Exceptions from Superior Court, Middlesex County; Frederic H. Chase, Judge.

Libel for divorce by John F. Hartwell against Mary E. L. Hartwell. Decree dismissing the libel, and libelant excepts. Exceptions overruled.

thus to afford opportunity to the parties to become reconciled and live together again. That object would be frustrated in cases where the mind to will has become unsound. An act which if performed by a normal person would be ground for divorce affords no justification for dissolving the marriage bond if committed by an insane person. Broadstreet v. Broadstreet, 7 Mass. 474.

In the case at bar there were only a few weeks during which the libelee was capable of sane desertion. Her mind for the rest of the time has been unable to form an intelligent purpose respecting the subject of desertion. Hence, although the time has elapsed,

Thibodeau, Ellsworth & Yont, of Boston, the essential, responsible intention has been for libelant.

RUGG, C. J. This is a libel for divorce on the ground of desertion. The parties were married in September, 1904. Between that time and May, 1912, the libelee was twice placed under restraint as an insane person, having been confined the first time more than two years and the second time a little less than one year. From May, 1912, to February 8, 1913, she was sane. On the latter date she left her husband and took with her the younger of the two children born of the marriage, being at that time sane and fully appreciating the consequences of her act.

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absent. It follows that there has been no desertion. The decisions in other jurisdictions are to the same effect. Porter v. Porter, 82 N. J. Eq. 400, 89 Atl. 251; Kirkpatrick v. Kirkpatrick, 81 Neb. 627, 116 N. W. 499, 16 L. R. A. (N. S.) 1071, 129 Am. St. Rep. 708; Storrs v. Storrs, 68 N. H. 118, 34 Atl. 672. We are aware of none to the contrary.

There is nothing at variance with this conclusion in Hews v. Hews, 7 Gray, 279, or Drew v. Drew, 13 Probate Div. 97, in both of which the continuing purpose to desert was established notwithstanding some involuntary incarceration as punishment for crime. Exceptions overruled.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(188 Ind. 612)

(125 N.E.)

dise purchased by it in bulk from the IndeGEORGE KRAFT CO. et al. v. HELLER. pendent Five & Ten Cent Stores of New York.

(No. 23370.)

Appellee alleged that the Independent Five & Ten Cent Stores of New York was indebted to him in the sum of $7,500 at and prior

(Supreme Court of Indiana. Dec. 12, 1919.) 1. FRAUDULENT CONVEYANCES 47-MATE- to the date of its sale of said stock of mer RIALITY OF FRAUDULENT INTENT IN TRANS-chandise to appellant as shown by a judgFERS UNDER BULK SALES' LAW.

Under Burns' Ann. St. 1914, § 7471a, relating to bulk sales of merchandise, the question as to whether a fraudulent intent in fact existed and entered into the transfer is not material, and if it be found that the purchaser complied with the statute, the court can say as a matter of law that the purchaser had no intent to defraud the seller's creditors; but if the purchaser failed to comply with the statute, the transaction is tainted with a fraudulent intent as a matter of law. 2. FRAUDULENT CONVEYANCES 47-EFFECT OF FAILURE TO GIVE NOTICE REQUIRED BY

BULK SALES' LAW.

ment of the La Porte circuit court for that amount, and facts are alleged showing that appellant purchased the stock and fixtures in bulk, and that it failed to comply with the provisions of section 7471, Burns 1914, relating to such sales.

The sworn complaint and a certified copy of the judgment were introduced in evidence on behalf of plaintiff, and the defendants introduced certain affidavits as a defense. After a consideration of the evidence so introduced the court entered an order declar

ing and appointing appellant George Kraft Company receiver of the stock of goods so purchased from the Independent Five & Ten Cent Stores of New York for the benefit of plaintiff, and directing it to qualify as such receiver by filing bond in the sum of $10,000. From the order so entered this appeal is takThe only question presented by the sev

Failure on the part of a purchaser of a stock of goods to give the notice required by Burns' Ann. St. 1914, § 7471a, relating to bulk sales, renders the whole transaction fraudulent per se as to creditors, regardless of the actual good faith of the parties involved, and regardlessen. of compliance with the statute in other re-eral errors assigned relates to the sufficiency spects. of the evidence to sustain the finding on which the order is based.

3. FRAUDULENT CONVEYANCES

47-CREDI

TORS ENTITLED TO NOTICE UNDER BULK
SALES' LAW.

That a judgment against the seller of a stock of goods is disputed and is still in litigation does not remove it from the operation of Burns' Ann. St. 1914, § 7471a, requiring a purchaser of goods to notify the seller's credi

tors.

Statutes regulating the sales of stocks of merchandise in bulk similar to the one on which this proceeding is based have been passed by nearly all of the states of this country. This widespread legislation on the subject indicates that there was a general belief in the existence of a prevalent evil which such legislation was intended to suppress. The evil sought to be corrected was the tendency and practice of merchants An appeal bond stays all proceedings for heavily indebted to make secret sales of their the enforcement of judgment during the pend-merchandise in bulk for the purpose of deency of the appeal, and suspends the authority of a receiver appointed to take charge of the property during such time.

4. APPEAL AND ERROR 489-SUSPENSION OF PROCEEDINGS ON FILING OF APPEAL BOND.

frauding their creditors. Under the statutes of this state as existing prior to the enactment of the one under consideration, the

Appeal from Superior Court, St. Joseph question as to whether a conveyance of lands County; George Ford, Judge.

Action by Adolph Heller against the George Kraft Company and others. From an interlocutory order appointing a receiver, defendants appeal. Affirmed.

Hubbard & Pettengill, of South Bend, and Newman, Poppenheusen, Stern & Johnson, of Chicago, Ill., for appellants.

or an assignment or transfer of personal property was or was not made with a fraudulent intent for the purpose of defrauding, hindering, or delaying creditors was one of fact. Sections 7479, 7483, Burns 1914. Under the law as it so. stood, the court or jury trying the case was required to decide from the facts and circumstances that a fraudulent intent did or did not exist as a fact. It

G. A. Farabaugh, of South Bend, for ap- must be assumed that some reason known to pellee.

the Legislature existed which led that body to the conclusion that the rule requiring LAIRY, J. This is an appeal from an in- fraudulent intent to be proved as a fact from terlocutory order appointing a receiver in a subsidiary facts and circumstances disclosed proceeding filed by appellee against appel- by the evidence should be abrogated in cases lant, wherein appellee demanded judgment involving the sale of stocks of merchandise in the sum of $7,500 and prayed an order of in bulk. As a consequence the Legislature court declaring appellant George Kraft Com- by the act under consideration placed sales pany to be a receiver of a stock of merchan- of this kind in a class by themselves, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 125 N.E.-14

that he shall demand and receive from the seller a written list of names and addresses of the creditors of the seller, with the amount of indebtedness due or owing to each, and certified by the seller under oath to be a full, accurate, and complete list of his cred

provided that the purchaser at such sales should take certain steps specified in the statute prior to concluding the sale and paying the purchase money. The statute provides that, in case the purchaser conforms to the provisions of the statute, he shall not be held accountable in any way to any cred-itors and of his indebtedness. It is shown itor of the seller. Secton 7471c, Burns 1914. On the other hand, if he fails to take the steps imposed in conformity to the terms of the act, the sale is fraudulent as a matter of law so far as the creditors of the seller are concerned. Section 7471a, Burns 1914.

[1] Under this statute, the question as to whether a fraudulent intent, in fact, existed and entered into the transfer is not material. The effect of the act is to take the question of fraudulent intent out of the realm of fact and place it in the realm of law. If it is found as a fact that the purchaser took the steps provided by the act in conformity with its terms, the court can say as a matter of law that the purchaser had no intent to defraud the creditors of the seller, and that his title to the goods acquired is immune from attack by any such creditor on that ground. On the other hand, if the purchaser fails to take the steps prescribed in conformity with the act, the court is required to say, as a matter of law, that the transaction is tainted by a fraudulent intent, and that the title acquired is open to an attack by a creditor of the seller in the manner provided by the act. McGreenery v. Murphy (1912) 76 N. H. 338, 82 Atl. 720, 39 L. R. A. (N. S.) 374; Peck v. Hibben (1916) 185 Ind. 623, 114 N. E. 216. It is not necessary to speculate on the reasons which prompted the enactment of the statute. It may be that the Legislature intended to provide a means available to a purchaser at such sales by which he could protect himself from vexatious litigation by creditors of the seller, and at the same time to provide a means by which creditors of the seller might learn or be informed of the proposed sale in time to protect their claims. Whatever may have been the purpose, it is clearly the intent of the act that a compliance with its provisions should make the title acquired by the purchaser secure against attacks by creditors of the seller, and that a failure to so comply should render the transaction fraudulent per se, and should enable the creditors of the seller to assail the title of the purchaser in the manner provided by the act.

The first step required by the statute of the purchaser is that, at least five days before the sale is to be consummated, he shall make a full and detailed inventory of the articles to be purchased, showing quantity and so far as possible in the exercise of reasonable diligence the cost price to the seller. It is shown by affidavit filed on behalf of appellant that such step was taken in compliance with the act.

by affidavit that at least five days before the sale was consummated a list of creditors was furnished by the seller on demand of the purchaser showing the names of the creditors of the seller and the amount due or owing to each, and that the list furnished was verified by the seller as being a full, accurate, and complete list of creditors, and of his indebtedness, but that such list did not contain the judgment in favor of plaintiff for $7,500, and that the purchaser had no knowledge of the existence of such judgment. This constituted a compliance with the second specification of the act, and, had appellant complied with the third specification as provided in the act by giving the notice required, its title to the goods purchased would have been secure against attack of any creditor of the seller. This specification requires that the purchaser shall, at least five days before the consummation of the sale, give notice of the proposed sale, and of the price, terms, and conditions thereof, to every creditor whose name and address appears on the list, and to all other creditors of the seller of which he has knowledge. The notice is required to be given to the creditor personally or by registered mail. It appears from the evidence that no notice whatever was given in compliance with the requirement of the act.

[2] The failure on the part of the purchaser to give such notice renders the whole transaction fraudulent per se as to creditors of the seller regardless of the actual good faith of the parties involved. Had appellant given notice to all creditors whose names "appeared on the verified list furnished him, his title to the goods purchased could not have been successfully attacked by appellee unless he could have shown that appellant had knowledge of his claim in time to have notified him as a creditor, and this would have been true even though the seller had knowingly and fraudulently omitted his name from the list of creditors. Glantz v. Gardiner (1917) 40 R. I. 297, 100 Atl. 913, L. R. A. 1917F, 226, 229, and note; Coach v. Gage (1914) 70 Or. 182, 188, 138 Pac. 847.

Having failed to comply with the requirement of the statute as to notice, it cannot avail appellant to show that no reference to appellee or his claim appeared on the list of creditors, and that appellant had no notice or knowledge of the existence of such claim prior to the consummation of the purchase. In the light of such facts, it is evident that notice of the proposed sale would not have been given to appellee, either perThe next step required of the purchaser is sonally or by registered mail, even though

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