uary, and that if Ginn & Co. were willing to sell text-books under those conditions they could ship the text-books therein described to the school department. On November 23, 26 and 28, and December 2, 1921, the superintendent wrote to Ginn & Co. letters in the same form ordering additional text-books. Again on December 8, 1921, a letter was sent by the superintendent ordering certain textbooks and requesting that the bills therefor be sent to the school department. At the time he wrote each letter the superintendent knew the condition of the accounts of the school department. The plaintiffs knew only what was stated in the letters. The vote of the school committee referred to above was passed at a meeting held on October 14, 1921, and read as follows: "Whereas the duty of maintaining schools of proper standard in the city of Revere, and the furnishing of sufficient text-books, supplies, and apparatus is laid upon the school committee by law, and "Whereas the school committee is unable to furnish instruction up to the standard to which our children are entitled, because of insufficient text-books, supplies, and apparatus, thereby causing a most serious emergency, and "Whereas-the city government of Revere has failed to furnish sufficient funds upon request of the school committee necessary to maintain the schools properly, and as required by law, therefore be it "Resolved that the school committee should and shall purchase such text-books, supplies, apparatus, and furnishings as are needed for the schools, even though such purchase shall result in expenditures in excess of the appropriation of the school committee. "Mr. Jackson "Moved that the superintendent be instructed to purchase such text-books, supplies, apparatus, and furnishings as may be needed all purchases to be subject to the approval of the proper subcommittees. Voted. "Mr. Jackson "Moved that the communication from Mr. Kingsley be received, entered in the records, acknowledgment made expressing the appreciation of the school committee, and that a copy of Mr. Kingsley's letter together with the resolution adopted and the motion passed in regard to the purchase of books, etc., be sent to his honor, the mayor, and the city council. Voted." This vote was passed after consideration by the school committee of a report made by one Kingsley, state supervisor of high schools, relative to the supply of text-books in the Revere schools. The text-books ordered from the plaintiffs by the letters of the superintendent were reasonably necessary for the proper maintenance of the defendant's schools. The school committee in the month of January, 1921, in accordance with the provisions of St. 1914, c. 687, § 49 (city charter of Revere) submitted to the mayor of Revere an estimate in detail of the amount which it deemed necessary to expend for the care and maintenance of the schools during the succeeding financial year, and included therein the following item: "Text-books and supplies, $26,024.72." The mayor and city council appropriated only $15,000 for this item. In July, 1921, the school committee submitted an additional estimate for text-books and supplies of $5,393.65, but only $2,500 was appropriated, and on September 22, 1921, an addi tional estimate of $8,500 was submitted for which no appropriation was made. During the financial year 1921 the school department expended for text-books and supplies from the money appropriated $17,442.72, and incurred unpaid bills for text-books and supplies amounting to $10,151.42, including the bill of the plaintiffs. At the time the orders were given to the plaintiffs, the appropriation for text-books and supplies had been expended, and there was no money available nor was any more money appropriated by the mayor and city council thereafter for this purpose. Ginn & Co. delivered the text-books and sent eighteen invoices therefor made out to the city of Revere at the regular list prices less the usual discount. The prices charged were reasonable. All the invoices were approved by the school committee as being correct and payable. The sum of $1,226.99, as shown by the account annexed, was ascertained by deducting the sums credited for books returned from the amount the invoices totaled. The school committee did not invite proposals by advertisements for the textbooks ordered. Ginn & Co., however, was the only firm which published these books. It was the practice of this company in dealing with the municipalities to sell directly to the city or town and not through dealers, but it nevertheless allowed the city of Revere the prevailing dealers' discount. The price of the books ordered was as follows: October 20, first order $174.54; October 20, second order $514.47; November 23, $215.77; November 26, the original order contained a duplicate of part of that of November 23, and totaled $248.79, but when adjusted to eliminate the duplication it was $192.27; November 28, $16.65; December 2, $59.22, which was later credited; December 8, $166.59. The trial judge, at the request of the defendant, found that the school committee's budget for the year had been submitted to the mayor and city council prior to the ordering and delivery of these goods; that the appropriation for text-books had been expended prior to the ordering of these textbooks; that at the time the orders were placed there was no money available to pay for the books ordered, nor had any money been appropriated to pay for them; and that the plaintiffs knew there was no money available for that purpose when the books were delivered to the defendant city. (161 Ν.Ε.) [1] At the outset the question is presented whether under the circumstances the school committee has the power to involve the city in debt in excess of an appropriation there for. G. L. c. 71, § 48, provides in part that "the [school] committee shall, at the expense of the town [town includes city, G. L. c. 4, § 7, cl. 34], purchase text-books. This provision is mandatory. Decatur v. Auditor of Peabody, 251 Mass. 82, 88, 89. St. 1914, c. 687, § 49, provides in part that, "unless otherwise required by law, the school committee shall cause no liability to be incurred beyond the aggregate appropriation granted by the council. However, the provisions of G. L. c. 44, entitled "Municipal Finance," were intended to place municipal expenditures upon a strict budget basis. The school committee is required by section 49 of St. 1914, c. 687, to submit in January of each year an estimate * * * * *" of the amount of money necessary for the proper maintenance of the schools during the succeeding financial year; it is thus required to plan for its expenditures in advance. Obviously the legislative purpose cannot be accomplished if any department is allowed to make expenditures which were not included in the estimate submitted by it. [2] It remains to be considered whether the school committee in the case at bar included in its estimate for the financial year 1921 an amount sufficient to pay for textbooks reasonably required during that year. The case was tried on an agreed statement of facts by a judge without a jury. No other evidence was introduced by either party. It is impossible to determine from the agreed facts whether the estimate submitted by the school committee did or did not include an amount sufficient to pay for all the text-books alleged to have been purchased from the plaintiffs. The burden was on the plaintiffs to establish that the estimate included an amount sufficient to pay for the text-books in question. Without intimating whether under any circumstances the school committee has the power to charge the city for a debt incurred in excess of an appropriation, it is plain that the submission of an estimate for an amount sufficient to pay for the text-books sold by the plaintiffs is a prerequisite to the imposing upon the city of a binding obligation. [3] The plaintiffs excepted to the rulings restricting the amount of recovery to orders for less than $200. Orders for $200 or more are not valid until approved by the mayor. St. 1914, c. 687, § 41; McLean v. Mayor of Holyoke, 216 Mass. 62. St. 1896, c. 438, § 52, and R. L. c. 42, § 35, involved in the case last cited, are similar in terms to St. 1914, c. 687, § 41, and G. L. c. 71, § 48, which are pertinent to the case at bar. The plaintiffs in their brief do not argue that the provisions of St. 1914, c. 687, § 41, are not applicable. It results that the defendant cannot be charged with liability for any of the text-books for which recovery is sought. The plaintiffs' exceptions are overruled. The defendant's exceptions to the refusal of the court to make the rulings eight and fourteen requested by it are sustained, and judgment is to be entered for the defendant. So ordered. ANNIS v. CONNORS (two cases). Supreme Judicial Court of Massachusetts. Middlesex. May 25, 1928. 1. Mortgages 241-Second assignment to assignee of note and mortgage, given for purpose of covering subsequently acquired interest of assignor, was effective as contract. Instrument, whereby assignor of note and mortgage again assigned instruments to assignee for purpose of revesting any title subsequently acquired by assignor under an assignment to him, was a deed poll, and, when accepted by assignee, became valid contract, and authorized him to do and perform any act expressly and impliedly stipulated therein, being equally as effectual as if a formal indenture had been signed. 2. Bills and notes 182-Assignment of mortgage alone as collateral security held not to preclude assignor's transfer of note by indorsement. Assignment of mortgage as collateral security without delivery of note held not to make note void in hands of assignor or prevent its transfer and delivery in due course, even if mortgage and assignment had been recorded before indorsement and delivery of note; indorsee of note being entitled to pursue legal remedy without resorting to the mortgage. 3. Bills and notes 437-Second assignment to assignee of note and mortgage "without recourse" held not to release assignor on note, where second assignment conveyed assignor's subsequently acquired interest and note was valid outstanding claim. Where holder of note and mortgage first assigned mortgage as collateral security, without delivering the note or assigning the claim secured, and, subsequently, assigned both note and mortgage for a valuable consideration, and thereafter gave the subsequent assignee a second assignment covering assignor's after-acquired interest by reassignment from the prior assignee of the mortgage, the note was a valid outstanding claim and assignor was not released from liability thereon, as regards subsequent assignee, by statement in the second assignment that he assigned note and mortgage "without recourse to me in any event." Report from Superior Court, Middlesex County; John D. McLaughlin, Judge. Actions by Paul C. Annis against Frank A. Connors. On report from the superior court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes after verdict for the defendant. Judgment. nothing was said regarding any change in for plaintiff ordered. Augustine J. Daly, of Boston, for plain tiff. John Boyle O'Brien, of Boston, for defend ant. PIERCE, J. These are two actions of contract, tried together to jury in the superior court: One to recover interest accrued on a note dated September 22, 1922; the other to recover a balance of principal and interest on the same note. At the close of the evidence the trial judge ordered the jury to return a verdict for the defendant in each case; and he reported the cases to this court upon the following terms: "If the plaintiff was entitled as a matter of law to have a verdict directed for the plaintiff then judgment is to be entered on the declaration for the plaintiff in each case; if upon all the evidence the court was right in directing a verdict for the defendant, then judgment to be entered for the defendant; but if upon all the evidence a verdict should not have been directed for either plaintiff or defendant but the case should have been submitted to the jury, then a new trial to be granted." In substance the facts disclosed in the re port are as follows: On September 22, 1922, one Elizabeth A. Brady executed and delivered to the defendant, Frank A. Connors, her negotiable promissory note, secured by a mortgage of real estate in Newton, Massachusetts. This mortgage was duly recorded in Middlesex South District Registry of Deeds, Book 4553, p. 194. On March 12, 1923, Connors, the payee of the said note, for a valuable consideration assigned the mortgage, the note, and the claim secured thereby to the Guaranty Trust Company, indorsing the note: "Waiving demand and notice Frank A. Conners." The sealed instrument of assignment dated March 12, 1923, was "Received and entered with Middlesex South District Deeds, Book 4595, p. 334" on March 13, 1923. Sometime before March 13, 1923, Connors, then the payee of the note, had assigned the mortgage as "collateral security" to one End lar. Other than by inference the report does not show that the assignment to Endlar was recorded before March 13, 1923, nor does it appear therein that there was ever an assignment to Endlar of the note or claim which the mortgage was given to secure. One Daly, counsel for the Guaranty Trust Company, learned of the existence of the assignment of the mortgage to Endlar and that it "was undischarged on the record." Thereupon he talked with the defendant "and asked that said outstanding assignment be taken up and a new one given to his client, the Guaranty Trust Company." The defendant agreed to this. He testified that he insisted it was to be without recourse; Daly testified that Connors' original liability. Daly thereupon prepared a form of assignment to be executed by Connors, and forwarded it to him with a letter which reads: "Inclosed please find confirmatory assignment of the Brady mortgage, 394 Center St., Newton, to Guaranty Trust Co., for the purpose of clearing any record title that might be in you by reason of the reassignment of this mortgage to you by Mr. Endlar subsequent to the assignment of the same by you to the Trust Co. Would you kindly execute and return to us." The form of the assignment sent Connors was as follows: "I, Frank A. Connors, holder of a mortgage from Elizabeth A. Brady to me dated September 22, 1922, recorded with Middlesex South District Deeds, Book 4553, p. 194, assign said mortgage and the note and claim secured thereby to Guarantee [sic] Trust Company, a Massachusetts corporation of Cambridge, Middlesex county, trustee for Cambridge Realty Company and the trustees of the United Trust, without recourse to me in any event. This assignment is given for the purpose of vesting in said assignee any interest of record which I may have by virtue of an assignment to me from Isaac Endlar, to whom I had assigned said mortgage as collateral security, and to confirm previous assignment from me to said assignee. dated March 12, 1923. Witness my hand and seal this 27th day of April, 1923. [Seal.]" Although the report does not so state we assume the defendant procured a reassignment of the mortgage from Endlar. After such reassignment Connors signed, sealed and acknowledged the form of assignment sent him by Daly, and returned it to Daly "who recorded it soon afterwards." The Guaranty Trust Company delivered the note to the plaintiff who took the note "with notice of any defenses which defendant might have and stands in the position of the Guarantee [sic] Trust Company, trustee." The defendant rests his defense entirely upon that part of his answer which reads as follows: "And further answering the defendant says that for and as consideration for the assignment of the mortgage upon which the plaintiff's claim is based the defendant was released by the plaintiff from any further liability upon the said note, which is the basis of the plaintiff's claim, and that the defendant did, for the consideration of the releasing of the defendant, sign, execute and deliver to the plaintiff an assignment of the said mortgage, the said assignment being given by the defendant to the plaintiff for and in consideration of the plaintiff's releasing the defendant from any and all liability upon the said mortgage note as indorser thereof." [1] The second deed of assignment has no covenant on the part of the Guaranty Trust Company to release Connors from the obligation which he incurred when, as payee, he indorsed the note in action and delivered it (161 Ν.Ε.) to that company. The instrument in effect was a deed poll, and when accepted by the trust company became a valid contract by that company to do and perform any act which the deed as a condition of its delivery expressly or impliedly stipulated should be done by it. Goodwin v. Gilbert, 9 Mass. 510; Nugent v. Riley, 1 Metc. 117, 35 Am. Dec. 355; Newell v.. Hill, 2 Metc. 180; Rugg v. Record, 255 Mass. 247, 251, 151 Ν. Ε. 95. The agreement of the Guaranty Trust Company implied in the deed poll is as effectual to determine the rights of the parties thereto as if a formal indenture had been signed. The question for decision is, Do the words "withrecourse to me in any event," when regard is had to the entire deed of assignment, import an implied agreement on the part of the Guaranty Trust Company to hold Connors harmless from any claim which it had or might have against him by reason of the execution of the second assignment to it, and also an implied agreement to release and discharge Connors from his obligation as an indorser of the Brady note then held by the Guaranty Trust Company? [2] The assignment of the mortgage as "collateral security" to Endlar without the delivery of the Brady note, and, so far as the record discloses, without an assignment of the claim secured by the mortgage, did not make the note void in the hands of Connors or prevent its transfer by indorsement and delivery in due course to the Guaranty Trust Company; nor was the assignment to the Guaranty Trust Company void if it be assumed that the assignment to Endlar was not recorded when the note and mortgage were assigned and delivered to the Guaranty Trust Company. If the assignment to the Guaranty Trust Company was void because of the prior assignment to Endlar, and because of the further fact that that assignment had been duly recorded before the assignment to the Guaranty Trust Company, the Guaranty Trust Company could pursue its remedy at law on the note without resorting to the mortgage. Burtis v. Bradford, 122 Mass. 129, 131; Bennett v. Sheinwald, 252 Mass. 23, 147 N. E. 28. Without the assign ment to Endlar of the debt which the mortgage secured, Connors could pledge the mortgage (Paika v. Perry, 225 Mass. 563, 114 N. E. 830); and the fact that the mortgage was assigned to Endlar as "collateral security" affords a strong inference that such was the case in this transaction. [3] In view of the facts that the note was a valid outstanding claim against Connors and that the second assignment states that "this assignment is given for the purpose of vesting in said assignee any interest of record which I may have by virtue of an assignment to me from Isaac Endlar, to whom I had assigned said mortgage as collateral security, and to confirm previous assignment from me to said assignee, dated March 12, 1923," we are of opinion the words "without recourse to me in any event" were not intended to operate as an agreement between the parties that the Guaranty Trust Company should release its right in the note as the consideration for the assignment of such interest as Connors had in the assignment from Endlar to him. We are of the further opinion the plaintiff was entitled as matter of law to have a verdict directed in his favor. It follows in accordance with the terms of the report that judgment is to be entered for the plaintiff in each case. So ordered. CASSIN v. CASSIN. Supreme Judicial Court of Massachusetts. Marriage 58(7)-Marriage in Roman Cath- Marriage in Roman Catholic Church, induced by wife's false representation that her former husband was dead, held not subject to annulment by husband on ground that wife was in fact a divorcee, and that her former husband was living at the time of the marriage, though marriage was contrary to canon laws of the church, since circumstances did not interfere with essential and material elements on which marriage relation rests. Report from Probate Court, Suffolk County; J. R. McCoole, Judge. Petition by Thoma's M. Cassin against Helen M. Cassin for annulment of marriage. On report from the probate court. Petition dismissed. P. J. Sondheim, of Boston, for libellant. PIERCE, J. This is a petition filed in the probate court for the county of Suffolk for the nullity of the marriage of Thomas M. Cassin with Helen M. Cassin. The relevant facts found and reported by a judge of that court are as follows: The libellant and the libellee were married in this commonwealth, in accordance with the rites of the Roman. Catholic faith, on May 26, 1918, and lived together until December 13, 1921. No children were born of the marriage. The libeilant before his marriage ever was and is now a devout communicant of the Roman Catholic Church. The libellee was an adherent of and baptized in the Methodist Episcopal Church. At the time the parties were contemplating marriage the question of their re ligious differences was discussed. The libel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lant proposed that he would marry the libellee if there were no religious impediments. He asked her if she had ever been married and she replied that she had been.. He asked her if she had ever been divorced and she said that she had never been divorced; that she was a widow, her husband and she had lived in Brockton, and he had met with an accident and had been killed. The libellant then made known to her that as a condition precedent to his marriage, since she was not a divorced woman, he would require her to become a convert and be married according to the rites of the Roman Catholic Church. The libellee thereupon agreed to comply with these terms and did in the early part of January, 1918, enter into due preparation for her affiliations with the Roman Catholic Church. At the preliminary examination before a pastor of that church, she stated that she was not divorced but was a widow. On March 25, 1918, she was converted and baptized by the Rev. Patrick H. Riley into the Roman Catholic Church. Prior to their marriage she stated to the libellant that she was twenty-five years of age, and stated to the pastor that according to the records of her baptism she was born on June 2, 1892, and she made oath before the registrar of marriages that she was a widow. The libellee was in fact born on June 2, 1885, and was divorced on June 25, 1909, the divorce becoming absolute on December 27, 1909. The libellant believed the representations made to him by the libellee as to her being but twenty-five years of age, that she was a widow and not divorced, that her husband was killed by an accident, and that she was eligible to embrace the Roman Catholic faith, and he would not have entered into the said marriage with her had he known that she had been divorced. From the time he first learned that she was a divorced woman, he ceased to live with her. The judge further found that "under the canon laws of the Roman Catholic Church a person who has been baptized and subsequently marries and is divorced, cannot while his wife or her husband is still living, be married in said church; that the impediment is one which cannot be dispensed and that such a marriage if actually performed under a misstatement of facts, as in this case, to the officiating clergyman is not a valid marriage in the eyes of the said church. The libellee in the present case was baptized in the Methodist Episcopal Church prior to her marriage to her first husband, was later divorced from him and he was living at the time of her marriage to the libellant. Said marriage to the libellant is not a valid marriage under the laws of the Roman Catholic Church." The libellant accepts as the law of the case the judgment of Reynolds v. Reynolds, 3 Allen, 605, 608, wherein Bigelow, C. J., said that, where the contract has been executed, "nothing can then avoid it which does not amount to a fraud in the essentialia of the marriage relation." What such fraud may be is stated at page 607 in these words: * It is not to be supposed that every error or mistake into which a person may fall concerning the character or qualities of a wife or husband, although occasioned by disingenuous or even false statements or practices, will afford sufficient reason for annulling an executed contract of marriage. In the absence of force or duress, and where there is no mistake as to the identity of the person, any error or misapprehension as to personal traits or attributes, or concerning the position or circumstances in life of a party, is deemed wholly immaterial, and furnishes no good cause for divorce. Therefore no misconception as to the character, fortune, health or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities, which do not constitute the essential and material elements on which the marriage relation rests. The law, in the exercise of a wise and sound policy, seeks to render the contract of marriage, when once executed, as far as possible indissoluble. The great object of marriage in a civilized and Christian community is to secure the existence and permanence of the family relation, and to insure the legitimacy of offspring." The concealment of the fact that the libellee was a divorced woman, and not a widow as she falsely represented, was a most serious and culpable fraud from the viewpoint of the libellant and under the canon laws of the Roman Catholic Church, but it did not go to the essentials of the marriage relation. The fact that the libellee was divorced when married to the libellant would not prevent her from being a faithful wife nor "preclude performance of the duties which the law and custom impose upon husband or wife as a party to the contract." Trask v. Trask. 114 Me., 60, 61, 95 A. 352. We are of opinion the libellant can have no relief in these proceedings. Chipman v. Johnston, 237 Mass. 502, 130 Ν. Ε. 65, 14 A. L. R. 119; Richardson v. Richardson, 246 Mass. 353, 140 Ν. Ε. 73, 31 A. L. R. 146. Petition dismissed. |