(161 Ν.Ε.) BIANCO v. PISCOPO et al. Supreme Judicial Court of Massachusetts. Suffolk. May 28, 1928. 1. Executors and administrators 12-Debt due intestate from resident of state or demand requiring legal authority for its enforcement gives jurisdiction to appoint administrator. Debt due to intestate from person having domicile in state or any demand or right of intestate requiring legal authority for its enforcement is sufficient to give jurisdiction for appointment of administrator. 2. Executors and administrators 17(6) Probate court could appoint creditor as administrator of nonresident debtor, leaving assets in commonwealth (G. L. c. 193, § 1; a 215, § 3). Where testator who was resident of another state at time of his death left assets in commonwealth, and will was allowed in the foreign jurisdiction, probate court had jurisdiction to appoint creditor as administrator on his application under G. L. c. 215, § 3, and chapter 193, § 1, in view of chapter 192, §§ 9, 10, 11. 3. Executors and administrators20(1)Creditor petitioning for appointment as administrator of estate of nonresident testator was not required to present copy of will (G. L. c. 193, § 1; c. 199, §§ 1, 2; c. 215, § 3). Creditor, applying for letters of administration of estate of nonresident, testator, under G. L. c. 215, § 3, and chapter 193, § 1 and chapter 199, §§ 1, 2, was not required to present copy of will, though will had been finally allowed in probate court of New Hampshire, in view of Pub. Laws 1926, с. 311, § 12. 4. Executors and administrators 17(6)-Appointment as administrator of beneficiary under trust of which deceased was trustee held proper being "creditor" (G. L. c. 193, § 1). Appointment of petitioner as administrator of estate of nonresident testator under G. L. c. 193, § 1, on ground that he was a "creditor," held authorized, where petitioner claimed as beneficiary under trust of which deceased was trustee, since "creditor," within meaning of statute, is one who has cause of action against deceased which by law survives. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Cred itor.] CARROLL, J. This is an appeal from the appointment on November 3, 1927, by the probate court of an administrator of the estate of Benjamin Piscopo who at the time of his death was a resident of Laconia, New Hampshire. The petition for administration was filed April 18, 1927. The appeal is prosecuted by the widow of the deceased and the executors of his will. According to the agreed statement of facts the will of Piscopo was allowed in the Belknap county probate court of New Hampshire on September 25, 1926. Appeals were taken from the allowance, of the will. "These appeals were withdrawn or dismissed on the 31st day of May, 1927." "The will has been finally allowed." "No duly authenticated copy of the will of said Benjamin Piscopo and of the proceedings relative to its allowance has ever been filed in any probate court in Massachusetts." [1] It is not contended by the appellants that the testator had no assets in this commonwealth. "A debt due to the intestate from any party having a domicile in this state, or any demand or right, requiring legal authority for its enforcement, is sufficient to give jurisdiction for such an appointment." Merrill v. New England Mutual Life Ins. Co., 103 Mass. 245, 247, 248 (4) Am. Rep. 548); Harrington v. Brown, 5 Pick. 519, 522; Vinton v. Sargent, 195 Mass. 133, 80 N. E. 826. [2, 3] By G. L. c. 215, § 3, probate courts have jurisdiction to grant administration on the estates of persons who die out of the commonwealth leaving an estate to be administered here. G. L. c. 193, § 1, provides for the person to be appointed administrator of the estate of a person who dies intestate. G. L. c. 192 §§ 9, 10, 11, relates to the allowance of foreign wills. Assuming that the petitioner is the proper party to apply for administration, the probate court had jurisdiction to appoint him. See Prescott v. Durfee, 131 Mass. 477. In that case an administrator had been appointed in the domicile of the intestate and an administrator was also appointed in this commonwealth; it was said by Gray, C. J. at page 478: "The object of appointing an administrator is not to determine the rights of parties interested Appeal from Probate Court, Suffolk Coun- in that estate, but to have a legal representative ty; Wm. M. Prest, Judge. Petition by John A. Bianco for letters of administration of the estate of Benjamin Piscopo, deceased, opposed by Giselda Piscopo of the estate of the deceased within the commonwealth, against or through whom those rights may be asserted." Whether the deceased died testate or in and others. From a decree appointing peti- testate, a legal representative of his estate tioner administrator, defendants appeal. Affirmed. Lafayette R. Chamberlin, Campbell Bosson, and Thomas L. Gannon, all of Boston, and Fletcher Hale, of Laconia, N. H., for appellants. H. P. L. Partridge, of Boston, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lowed in this commonwealth. The creditor was not bound to present a copy of the will in which he had no interest. See Livermore v. Haven, 23 Pick. 116; G. L. c. 199, §§ 1, 2. As to the effect of the appeals from the decision of the probate court in New Hampshire, see Public Laws of New Hampshire, 1926, c. 311, § 12; Cummings v. Allen, 34 Ν. Η. 194. [4] As there were assets of the deceased in this commonwealth the probate court could appoint an administrator; and the judge could find that the petitioner was a creditor. The petitioner contended that the father of the deceased from 1890 to 1902 deposited with the deceased property to the amount of $140,000, consisting of real and personal property, in trust "for the members of" the father's family; that Gaetano Piscopo, the father, died in 1903, and "at that time Annie Piscopo Bianco, daughter of Gaetano had died, leaving" as her only child the petitioner; that the wife of Gaetano died in 1918, and when Gaetano died he left four children living and there were no grandchildren who were children of deceased children except the petitioner. If there was a valid trust as contended by the petitioner and he was a beneficiary thereunder, see Sheedy v. Roach, 124 Mass. 472, 26 Am. Rep. 680, then he could be considered a creditor under the statute granting to probate courts jurisdiction to appoint a creditor the administrator of an estate of a deceased person. "According to the liberal construction given to this statute one is a creditor within the meaning of it, who has a cause of action against the deceased which by law survives." Smith v. Sherman, 4 Cush. 408, 412. "To furnish creditors with an adequate remedy in such cases, the statute makes the court of probate the avenue through which they may be enabled to enter the courts of law, and there seek and obtain their legal remedy. But it was never intended that questions of this sort should be definitely settled in the probate court. They are to be tried, and finally determined in courts of law; all that is required of the court of probate is, that it shall determine whether a sufficient prima facie case is made out to authorize the granting administration on an estate, in order to enable a creditor to enforce his legal remedy in another tribunal." Bowdoin v. Holland, 10 Cush. 17, 19. Applying this rule the probate court could appoint the petitioner administrator on the ground that he was a creditor of the deceased. See, also, Stevens v. Gaylord, 11 Mass. 256, 263, 264; Harrington v. Brown, 5 Pick. 519; Rackemann/v. Taylor, 204 Mass, 394, 402, 403, 90 N. E. 552; Morrison v. Hass, 229 Mass. 514, 517, 518, 118 N. E. 893; Wright v. Macomber, 239 Mass. 98, 101, 102, 131 N. E. 480. In the opinion of a majority of the court the decree is to be affirmed. Ordered accordingly. DONOVAN v. FREEΜΑΝ. Supreme Judicial Court of Massachusetts. Contracts 29-Intention to make subsequent Though circumstance that parties intend a subsequent agreement to be made is strong evidence that they did not intend previous negotiations to amount to an agreement, it is not necessarily conclusive, as respects right to have directed verdict. Exceptions from Superior Court, Suffolk County; Harold P. Williams, Judge. Action by James A. Donovan against Edward F. Freeman. On defendant's exceptions to refusal to direct a verdict. Exceptions overruled. J. M. Maloney and P. J. McManus, both of WAIT, J. This is an action by a real estate broker to recover a commission. The evidence was conflicting and justified contradictory inferences. We find no error in the refusal to direct a verdict for the defendant. It is his contention that the buyer, introduced by the plaintiff, and the seller had not arrived at a completed bargain when the latter put an end to the negotiations by selling to a third party at a greater price. His dificulty is that the testimony permitted a different finding of fact. It is true, as was stated in Doten v. Chase, 237 Mass. 218, 220, 129 N. E. 363, cited by the defendant, that "the circumstance that the parties do intend a subsequent agreement to be made, is strong evidence to show that they did not intend the previous negotiations to amount to an agreement"; but it is not necessarily conclusive. A finding that no completed agreement has been made seems more consistent with the printed evidence; but we cannot say that the judge who saw and heard the witnesses was wrong in ruling that an issue of fact to be determined from conflicting evidence was presented. There is nothing in this which contradicts the decisions in Flax v. Sovrensky (Mass. 1928) 159 Ν. Ε. 497, and Kelly v. Johnson, 258 Mass. 478, 155 N. E. 444. Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes VITTI v. GARABEDIAN. (161 Ν.Ε.) GARABEDIAN v. VITTI. Supreme Judicial Court of Massachusetts. Middlesex. May 29, 1928. 1. Contracts 349(7)-Evidence of architect's statements to contractor waiving written approval for changes in contract held admissible, where architect's authority was shown. In action by contractor to recover for labor performed and materials furnished in excess of contract price, under contract which provided no deviation from specifications should be made without written approval of architect, evidence of conversations of contractor with architect, showing architect's waiver of conditions as to extra costs, held admissible, where testimony of owner showed architect's authority to represent him. 2. Contracts232(4)-Where construction contract was substantially completed, and owner assented to extra work, court properly found provisions requiring written order for changes were waived. Where construction contract was substantially completed and owner knew of extra work performed without written approval of architect as required by contract, but nevertheless assented to it, finding of trial court that provisions requiring written order were waived was proper. 3. Contracts In action by owner against contractor to recover damages for contractor's failure to complete contract, question whether items of expenditure set forth in plaintiff's declaration had been proved was for trial judge as trier of facts, and request that plaintiff was entitled to recover such items was properly refused. "The contractor agrees that the owner shall be at liberty at all times during progress of the work to direct any alterations to be made therein, and deviations from said drawings and specifications, without in any respect or particular varying this agreement or impairing its force, it being understood that in case any alterations or deviations are made, such further time shall be allowed for completion of the work caused by such alterations or deviations as the architect shall decide to be reasonable and such sums of money shall be paid the contractor in addition to the contract price, or subtracted from the contract price, as the case may be, as such work may be fairly worth. No alterations shall be made in the work nor extras or additions of any kind shall be recognized or allowed except upon written order of the architect. The amount to be paid by the owner or allowed by the contractor by virtue of such alterations, extras or additions to be stated in the order. Should the owner and contractor not agree as to the amount to be paid or allowed, the work shall go on under the order required above, the determination of said amount shall be referred to arbitration. The architect shall have the power to direct any changes in the construction as they may think desirable or necessary during progress of the work provided the same shall involve no additional expense." It was undisputed that no orders in writing were given by the architect and the defendant contends that by the express terms of the contract the plaintiff cannot recover. The plaintiff however testified and introduced evidence tending to show that the defendant was Appeal from District Court of Newton; present with the architect at various times Thomas Weston, Special Judge. Action by Carmen A. Vitti against Haig S. Garabedian, and action by Haig S. Garabedian against Carmen A. Vitti. A decision in the first action was rendered for plaintiff, and in the second action judgment was ordered for defendant. Report was dismissed by the Appellate Division in each case, and Haig S. Garabedian appeals. Orders of Appellant Division affirmed. J. A. Post, of Boston, for Garabedian. BRALEY, J. The first action is to recover for labor performed and materials furnished in excess of the contract price for which the plaintiff agreed to build a single dwelling house and garage for the defendant. There was evidence warranting the findings by the trial judge, that the plaintiff did much extra and saw the extra work being done, and made no objection. When the first extra work was in progress he asked the architect for a certificate but was told that no certificate was necessary. The plaintiff also testified that after the contract was signed he talked with the defendant with reference to certain work in the attic telling him it would cost more to make the proposed changes in the roof and attic than were shown by the plans. The record states that there was no express waiver. But the defendant testified that the attic was finished with his approval and he knew there was a change in the plan, and he also knew that the cellar needed to be drained and authorized the plaintiff to do the work and agreed to pay for it although he objected to the amount of the bill. [1] The plaintiff, subject to the defendant's exception, offered evidence of conversations with the architect showing a waiver by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes architect of the conditions as to extra costs. The defendant however testified, "that whatever the architect had said or done he stood back of providing the changes would not cost him more money," and that "the architect was supposed to supervise the building for me. He was to check it up. I employed him to represent me. I didn't have him as a foreman." We find no reversible error in the admission of the evidence. In Bartlett v. Stanchfield, 148 Mass. 394, 395, 19 N. E. 549, 550 (2 L. R. A. 625), where the contract in writing provided, "that no charge shall be made for extra work or materials unless the same is ordered in writing and the price thereof agreed upon," and the plaintiff brought suit to recover for extra work, it was said referring to the parties: "In deciding whether they had waived the terms of the written contract, the jury had a right to assume that both parties remembered it, and knew its legal meaning. On that assumption, the question of waiver was a question what the plaintiff fairly might have understood to be the meaning of the defendant's conduct." "If the plaintiff had a right to understand that the defendant expressed a consent to be liable, irrespective of the written contract, and furnished the work and materials on that understanding, the defendant is bound." [2] The trial judge in the case at bar found as a fact that the contract was substantially completed, and that the defendant, who knew of the extra work and assented to it, thereby waived the provisions of the contract requiring an order in writing if any changes were made. Trevas & Schack, Inc., v. Napel Mills Co., 241 Mass. 452, 456, 135 N. E. 477. The defendant's requests were rendered inapplicable because of the findings and they were denied rightly. [3] The second case is brought by Garabedian to recover damages for alleged breach of the contract by Vitti. It is alleged in the original declaration that Vitti negligently and wilfully failed to perform the contract and that the plaintiff has incurred large expense which will be increased if the building is completed in accordance with the agree ment. The declaration as amended contained a count on an account annexed showing items of expenditure amounting to $2,168. The plaintiff's first, second and third requests which were given were in substance that he was entitled to recover the fair value of all work not done by the contractor in accordance with the contract and specifications, and to recover sums under article two of the contract, a copy of which does not appear in the record, for delay in completion of the work, as well as the reasonable costs of finishing such part of the work called for under the contract and specifications as was not done in a good and workmanlike manner. But the fourth request that, "on all the evidence, the plaintiff is entitled to recover for the items set forth in the plaintiff's declaration," was refused rightly. It was for the judge to determine on the evidence whether the items had been proved as alleged. While it was found that the plaintiff was entitled to recover $961.82 for incompleted work and for work not satisfactorily done yet, the plaintiff having retained $1,000 of the contract price which was credited in the declaration, judgment was properly ordered for the defendant. The result therefore is that in each case the order of the Appellate Division dismissing the report is, JENNINGS v. BOSTON ELEVATED RY. CO. Suffolk. May 28, 1928.' 1. Street railroads 113(4)-Exclusion of testimony concerning previous operation of street cars when children were crossing street held not error in action for injuries. In action by child for injuries as result of being struck by electric car, court's exclusion of examination of plaintiff as to whether she had notice before accident how cars were operated in front of school, when children were on sidewalk or crossing the street, held not error, since answer might open collateral issues. 2. Street railroads 117(13)-Negligence of motorman, operating car at downgrade and striking child crossing in path of car, held properly withdrawn from jury. Evidence of negligence of street railroad company held insufficient to make issue for jury, in action for injuries to child crossing car track near school, in view of testimony as to car's moderate speed down hill, and use of brakes immediately on motorman's discovery of children in his path. Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge. Action of tort by Margaret Jennings, by next friend, against the Boston Elevated Railway Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled. D. J. Triggs, of. Boston, for plaintiff. C. F. Choate, 3d., and S. H. Babcock, both of Boston, for defendant. PIERCE, J. This is an action of tort to recover damages for personal injuries, sustained by the plaintiff as the result of being struck by an electric car of the defendant near St. Gregory's Church, and almost opposite a house numbered 2157 Dorchester ave nue, Boston, at about 11:45 a. m. on September 26, 1924. At this point Dorchester avenue is 40 feet wide and runs approximately north and south. There are two tracks laid in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) middle of the street, the easterly track used by cars going toward Boston, and the westerly track by cars going south toward Milton. In front of No. 2145 Dorchester avenue there are two stopping poles, one on either side of the street. The distance from the curbstone of the westerly sidewalk to the nearer rail of the inbound track is about 22 feet 3 inches. The distance from No. 2157 Dorchester avenue to a point opposite St. Gregory's Church is 680 feet. The street running south is upgrade for about 400 feet from No. 2157 toward St. Gregory's Church; "that is, it rises 21⁄2 feet in 100 feet." * * The plaintiff and Elizabeth Thompson, aged 9 and 8 years respectively, immediately before the accident walked north on the westerly sidewalk of Dorchester avenue until they reached a point a short distance south of a house numbered 2145. Here, as they were going along, the plaintiff saw a dog and "became a little frightened" when the dog came out barking from the house or alleyway near the house. She did not want to pass the dog and she and Elizabeth went across the street. Before she left the sidewalk she looked toward Boston. She did not look toward Milton, but, as she testified, "as she went across she had her eyes open, * thinking that 'if a car came down the hill and the conductor saw me, that he would stop his car and ring his bell.'" She testified that "the motorman didn't ring his gong before she was struck; that when she first saw the car she was right close to it, right in front of it, in the middle of the car track"; that "she walked fast across the street"; and that she had lived in the section where the accident occurred about 3 years, during all of which time she has attended St. Gregory's School. The uncontradicted testimony of Elizabeth was, in substance, that when she first saw the car she was on the second rail of the outbound track, and at that time the plaintiff was between the inbound and outbound tracks; that "the car was about as far from her as the first rail of the jury box is from the witness stand, or about 4 or 5 feet"; that "the plaintiff ran across the street" ahead; that the witness "ran faster than the plaintiff" and tried as hard as she could to catch her, because she saw that the car was coming; that she reached out to grab her, put her hand on the plaintiff's coat, but "she slipped away," kept on going and "was about in the middle of the inbound track when the car hit her." The car stopped almost instantly, and while the body of the plaintiff was partly un der the car and partly under the guard rail, and the front left wheel was resting against, but was not upon, her right side. She was unconscious. It was in evidence that the car in question -started at the car barn, which is about 400 yards south from the place of the accident, traveled north on the inbound track, and stopped at the top of the hill just opposite the 161 Ν.Ε.-39 church; that as it again started the motorman saw four or five medium-sized girls between 12 and 14 years of age on the sidewalk below the church and four or five big children near St. Gregory's Church going toward Milton; that when the car had moved down the hill about 100 yards the motorman saw the plaintiff and her companion on the left-hand sidewalk about 150 yards away; that he saw them start to run across the road and at that instant he pulled the reverse and threw on his air brake immediately; and that "the car stopped probably 6 feet or 7 feet away from where he started to crank it." There was further evidence that the car was coasting; that it had been running about 10 or 12 miles an hour; and contradictory evidence as to whether the gong was or was not rung. There was evidence that the plaintiff and her companion could have been seen from a distance of 450 feet. The plaintiff introduced in evidence the following ordinances of the city of Boston: "Section 68. In taking any slope, descent or grade the speed of the car must be so reduced as to test the working of the brakes." "Section 73. No person having control of the speed of a street railway car passing in a street shall fail to keep a vigilant watch for all teams, carriages and persons, especially children, nor shall such person fail to strike a bell several times in quick succession in approaching any team, carriage or person and no person shall after such striking of a bell delay or hinder the passage of a car. "Section 74. No person having control of the speed of a street railway car passing in the street shall on appearance of danger to any team, carriage or person or on the appearance of any obstruction to his car fail to stop the car in the shortest time and space possible." [1] The plaintiff was asked: "Well, now as you have gone to and fro from your home to the school have you noticed about cars; had you noticed before the accident how cars were operated in front of the school when children were on the sidewalk or crossing the street?" Upon the witness answering "Yes" she was asked, "What have you noticed, Margaret?" The answer to the question was excepted to, excluded, and an exception saved by the plaintiff. In this ruling there was no error. The answer would or might open collateral issues as to what was done or not done in any instance observed by her and might unduly prolong the trial. [2] At the close of the evidence the judge at the request of the defendant directed a verdict in its favor, and the jury returned a verdict for the defendant as directed. We are of opinion the exception of the plaintiff saved thereto must be overruled. The evidence would not warrant the jury in finding, as the plaintiff contends, that the defendant was negligent: (1) "In operating the car at an excessive rate of speed;" (2) "in giving no warning or signal of its approach;" (3) "in not slowing |