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(162 N.E.)

appointment] shall be subject to confirmation by the city council. The mayor shall on the first Monday of January, 1927, appoint superintendent of waterworks. [The] appointment shall be subject to confirmation by the city council; [he] to * hold office for a term of three years from the said first Monday in January, 1927, and upon each three years thereafter the mayor shall appoint such [officer] with such like confirmation."

Section 6: "Any and all ordinances inconsistent herewith are hereby repealed."

Upon the passage of this ordinance, the petitioner on November 12, 1926, sent the mayor and city council a letter, a copy of which reads:

"I herewith notify you that under the provisions of chapter 31 of the General Laws, I claim the right of a hearing upon the attempted abolishment of my civil service position of superintendent of waterworks by reason of the passage of an ordinance entitled 'Ordinance to abolish the office of board of public service and transfer the powers and duties heretofore vesting in said board,' passed by the city council, November 9, 1926, and I respectfully request such hearing. Without waiving or prejudicing any rights which I may have under the law, I will continue to carry on the duties of superintendent of waterworks as formerly, together with any added duties provided by said ordi

nance."

Thereafter, and up to the time of the taking over of the office of superintendent of waterworks of the city of Lowell by the respondent, the petitioner continued to perform all the duties of said office. On March 15, 1927, the respondent was appointed by the mayor to the position of superintendent of waterworks "pursuant to the provisions of law made and provided." He was duly confirmed by the city council and was sworn to the faithful performance of his duties by the city clerk. "It is agreed by the parties that neither prior to the passage of said ordinance as set forth in petition, nor at any other time was the plaintiff notified of the proposed action of the city council of the city of Lowell, nor was he furnished with any statement in writing of any reason for his removal from said office, nor was he given a public hearing, nor were any charges preferred against him. It was further agreed that within three days after the passage of the aforesaid ordinance the plaintiff notified the mayor and city council of the city of Lowell of his attitude as hereinbefore set forth."

It was contended by the petitioner before the single justice, and it is now argued be fore this court, that the position of superintendent of waterworks in the city of Lowell was a civil service position under G. L. c. 31, § 3, and that it is classified by the civil service commission under class 1, section 1, rule 4 (Attorney General v. Trehy, 178 Mass. 186. 188, 59 N. E. 659); and that,

as he was appointed under the provisions of G. L. c. 31, and was enjoying the office under the provisions of the civil service laws of the commonwealth, the ordinance above quoted was invalid, because it was not within the power of the city council of the city of Lowell to abolish the position of superintendent of waterworks of the city of Lowell or to make provision for the appointment of any person to discharge the duties of said office contrary to the provisions of G. L. c. 31, and that the appointment by the mayor and the confirmation by the city council of the respondent to said position were null and void. The petitioner then and now further contends that he was not accorded the protection of G. L. c. 31, § 43; while the respondent contended, and now argues, that the petitioner was not the holder of an office or employment within the meaning of the statute.

It was and is the contention of the re

spondent that the petitioner was appointed by the board of public service in accordance with St. 1921, c. 383, § 30, parts 3, 4 and 5, as an officer whose term of office was unlimited, but who could be removed by the board for cause which they deemed sufficient, citing O'Dowd v. Boston, 149 Mass. 443, 445, 21 N. E. 949; Lacy v. Selectmen of Winchendon, 240 Mass. 118, 120, 133 N. E. 90; Bailen v. Assessors of Chelsea, 241 Mass. 411, 414, 135 N. E. 877; that the civil service commission was without authority to examine, classify or certify under the rules and regulations of the civil service commission a position as defined in St. 1921, c. 383, § 30, parts 3, 4 and 5; that the ordinance of November 9, 1926, abolishing the board of public service and transferring its powers and duties, was valid, and by the passage of the ordinance the positions of executive officers went with the board; that the respondent was appointed, confirmed and qualified in a legal manner and is the lawful holder of the office.

[1] Under St. 1921, c. 383, § 20, the administrative officer in charge of the water department in 1926 was the board of public service. Under section 30, part 3, of that chapter, the board of public service had power to appoint a superintendent of waterworks to have charge of the waterworks of the city under the direction of the board and of the city engineer. It is plain under this appointment the superintendent was not the head of a department, but was a subordinate officer exercising his duties under the supervision of superior officers. It is manifest the "executive officers" appointed by the board of public service under section 30, part 4, for an unlimited term were but subordinate officers, and that they could not be suspended or discharged by the administrative heads of the departments to which they were appointed except in accordance

with the civil service rules. The petitioner, as against the public service board acting under St. 1921, c. 383, § 30, part 3, and section 38, was entitled to the protection afforded an employee under G. L. c. 31, § 43.

[2, 3] The city of Lowell, however, had the power, when exercised in good faith under G. L. c. 43, § 5, to adopt an ordinance, the effect of which would be to abolish the ad

ministrative offices provided for in St. 1921, c. 383, § 20, and erect in place thereof departments with administrative heads ap pointed by the mayor and confirmed by the city council for a defined term. It is quite immaterial that the titles given to the heads of the departments were like those which attached to holders of subordinate positions under appointments by the abolished administrative officer-the board of public service. The petitioner under the civil service law, G. L. c. 31, § 43, and under the regulations of the civil service commission, had no right to have his appointment continued at the expense of public welfare; nor under section 43 had he a right to a hearing before the ordinance could be legally adopted or to a review of the legality of the ordinance on an appeal before the district courts. It is not alleged in the petition, and it cannot be presumed, that the adoption of the ordinance was a mere device to get rid of the petitioner. Donaghy v. Macy, 167 Mass. 178, 45 N. E. 87; Graham v. Roberts, 200 Mass. 152, 157, 85 N. E. 1009. Order denying petition affirmed.

CROSBY, J., did not sit.

DES BRISAY et al. v. FOSS. Supreme Judicial Court of Massachusetts. Suffolk. June 12, 1928.

1. Action 48(1)—Counts in contract and in tort must be for single cause of action to be joined.

Counts in tort and in contract must be for a single cause of action, in order to be joined in a single action at law.

2. Pleading 354 (1)-Replication alleging defendant was estopped to set up statute of frauds, and that in equity plaintiffs were entitled to relief against such defense, was properly stricken (G. L. c. 231, § 35).

Where defendant, in action on contract, pleaded general denial and statute of frauds, replication setting out circumstances when alleged contract was made, as well as action taken by plaintiffs in reliance on it, and claiming that defendant was estopped to set up statute of frauds as defense, and that in equity plaintiffs were entitled to be absolutely relieved against such defense, was unnecessary under G. L. c.

231, § 35, authorizing replication setting up equitable defense, since facts alleged afforded as full relief at law as they would in equity, and court's striking replication from files was not

error.

3. Appeal and error 1042(1)—Striking replication held harmless, where plaintiffs at trial had such benefit as facts alleged furnished.

Court's striking replication alleging that defendant was estopped to set up statute of frauds dicial, where plaintiffs at trial had such benefit as facts alleged furnished.

as defense in action on contract was not preju

4. Frauds, statute of 107(2), 110(1), 113 (1), 115(1), 116(1, 2)-"Memorandum" to satisfy statute must contain terms of contract, parties, locus, if land is involved, in some circumstances the price, and must be signed by party charged or authorized agent (G. L. c. 259, § 1).

A memorandum, to satisfy the statute of frauds (G. L. c. 259, § 1), need not be a formal document intended to serve as memorandum of contract, but it must contain terms of contract agreed on, the parties, the locus, if an interest in real estate is dealt with, in some circumstances the price, and it must be signed by party to be charged, or by some one authorized to sign on his behalf.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Memorandum.]

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ing to erecting hospital building and leasing same held insufficient to satisfy statute of frauds (G. L. c. 259, § 1).

Papers relating to erecting modern hospital building or remodeling premises, and relating to lease of such buildings to corporation to be formed by plaintiffs, held insufficient memorandum to satisfy statute of frauds, G. L. c. 259, § 1, where rental named was merely suggested, and had not been agreed on, and purchaser there proposed never came into being, and there was nothing in papers to show that party signing was acting for defendant.

6. Frauds, statute of

129(1)—That plaintiffs failed to renew leases and did other acts while awaiting performance by defendant of agreement to erect hospital building and make lease, was not part performance preventing operation of statute (G. L. c. 259, § 1).

That plaintiffs failed to renew their leases, and conveyed their hospital business to corporation, and broke up their hospital force, and ceased doing business while awaiting performance by defendant of agreement to erect hospital building and make lease to plaintiffs, was not such part performance as in equity would prevent operation of statute of frauds, G. L. c. 259, § 1, since there was no benefit received by defendant which he was enabled to retain by using statute as a defense.

7. Frauds, statute of

38-Statute was no defense to action for alleged false representation that title to property defendant agreed to lease was good (G. L. c. 259, § 4).

Alleged false representation that title to property defendant was alleged to have agreed

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(162 N.E.)

to lease to plaintiffs was good did not relate to "character, conduct, credit, ability, trade, or dealings of any other person," and statute of frauds, G. L. c. 259, § 4, dealing with false representations, was no defense to action in tort.

8. Trial 139(1)—Order directing verdict for defendant is proper only where there is no evidence which would support verdict for plaintiffs.

Order directing verdict for defendant can be sustained only where there is no evidence which would support a verdict for plaintiffs.

9. Fraud 13(2)—Untrue statement made as of knowledge of speaker may be actionable, although he is ignorant of falsity, if other elements are present.

An untrue statement made as of knowledge of speaker may be actionable, although he is ignorant of its falsity, if the other elementsthat statement is made to influence plaintiff's

action, that it is material, and that he acts upon it to his injury-necessary to an action for deceit, are present.

10. Fraud 25-Unless party suffers injury from false representation, he cannot maintain tort action.

Unless party suffers injury from false representation, he has no remedy by action of tort. 11. Contracts 10(1)-Defendant is not bound on unilateral contract until plaintiff does acts, doing of which constitutes consideration, and renders agreement binding.

Where contract is unilateral, defendant is not bound until plaintiffs have done acts, doing of which constitutes consideration and renders agreement binding.

12. Fraud 20-Where agreement between plaintiff and defendant regarding lease for hospital purposes did not become binding contract until after plaintiffs knew representation regarding title to property was false, plaintiffs cannot recover for false representa

tions.

Where agreement, regarding erection of hospital building by defendant and lease to plaintiffs, did not become binding contract, because plaintiffs had not performed all acts essential, until long after they knew that representation regarding title to property was false, such representation had become immaterial, and plaintiffs cannot claim that they were injured by it, and hence plaintiffs were not entitled to recover in tort for defendant's false representations.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by Lucy I. Des Brisay and others against Eugene N. Foss. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

W. R. Bigelow, of Boston, for plaintiffs L. A. Mayberry and R. Gallagher, both of Boston, for defendant.

The count in contract alleges breach of a promise either to remodel certain premises on Charlesgate East in Boston so as to fit them for use as a hospital, or to erect a modern hospital building in their stead and to lease or secure leases for a term of twenty years, or to lease the remodelled or newly erected buildings to a corporation to be formed by the plaintiffs. The count in tort alleges a false representation that the title to the property was good, when, in truth, it was so encumbered by restrictions that the premises could not be occupied for a hospital.

[1] The counts, necessarily, are for a single cause of action; otherwise they could not be joined in a single action at law. The recovery actually sought is for all loss to the plaintiff's resulting from action which they took in consequence of the representation, and of the promised performance of the defendant's undertaking. The answer pleaded a general denial and the statute of frauds.

[2, 3] The plaintiffs filed a replication, setting out, in substance as stated in the counts of the declaration, the circumstances surrounding them when the alleged contract was made, as well as the action taken by them in reliance upon it, and claiming that the defendant was thereby estopped to set up the statute of frauds as a defense; and that, in equity, the plaintiffs were entitled to be absolutely and unconditionaly relieved against such defense. On motion this was stricken from the files. A bill of exceptions presents the propriety of this ruling for determination.

There was no error in the ruling. No new facts were set up in the answer. No replication was necessary. The facts alleged in the replication afford as full relief at law as they would in equity and, therefore, G. L. setting up an equitable defence, is not applic. 231, § 35, which authorizes a replication cable. Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106. Moreover, the plaintiffs at the trial had such benefit as the facts alleged furnish. They were not prejudiced.

A second bill of exceptions to rulings made at the trial to a jury is also before us. At the trial there was evidence that the plaintiffs, who as partners had carried on a successful private hospital in leased premises on Newbury street in Boston and whose leases would expire on August 1 and 31 of 1922, understood that they could renew their leases if they so notified the landlords before July, 1922; but they desired to secure larger and more modern accommodations. In searching for suitable premises, some time in August of 1921, they applied to real estate brokers who eventually introduced them to the defendant, the controlling owner of premises of the Suburban Realty Corporation on Charlesgate East and Beacon street in Bos

WAIT, J. The plaintiffs sue in contract ton. The buildings, as they stood, were not or tort.

suitable for hospital uses. It was proposed

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that the defendant remodel them or build a modern hospital building on the land, and that the plaintiffs form a corporation to take over their existing business, to lease or purchase the land with the new or remodelled structure, and there to carry on a private hospital. Plans for buildings were proposed and discussed and efforts were made to interest others in a hospital trust for financing the business; but no remodelling or construction was entered upon by the defendant in spite of urging by the plaintiffs. In February of 1922 the plaintiffs organized "Des Brisay Hospital, Inc.," a corporation under the laws of the commonwealth, to own or lease and to carry on the hospital contemplated. They stated to the brokers that the location was satisfactory and they were willing to consider securing it, but that they must be sure they could have the property secured for their use and the buildings put up without expense to them, as they must notify their present landlords whether they would renew their leases. They asked whether the title were good and were told that it had been recently examined and was good-that it would be to waste time and money to have it re-examined. In reliance on these statements they made no investigation thereof. They notified the landlord at Newbury street that they would not renew the existing leases, and, under date of February 22, 1922, new leases were made to another tenant to take effect from and after August 1, 1922. The existing leases contained no covenants for renewal. Such right as the plaintiffs had to renew, if any, rested upon oral promises. Rent had not always been paid. promptly, and arrears existed at the time of the early negotiation with the defendant. In April, May or June of 1922, the plaintiffs were informed that the title to the Charlesgate premises was encumbered by restrictions and that the land could not be used for

hospital purposes. Considerable time and effort was expended by the plaintiffs in endeavors to secure the release of the restrictions but without success. The defendant offered for the plaintiffs' consideration other property in which he was interested situated upon Audubon road. Other plans for hospital buildings on those premises were prepared and renewed efforts to finance the business were made, but without successful result. About July of 1922, with the defendant's consent, the plaintiffs removed their property to the premises on Charlesgate East, where they remained without payment of rent until negotiations were abandoned. On February 12, 1923, they transferred to the corporation all personal property theretofore used in their hospital business with all the good will of their partnership and the right to use the name "Des Brisay Hospital." In April of 1923 they notified the brokers that they would "call it quits" and would not wait longer, and re

moved their goods to Corey Hill in Brookline where they planned to carry on a hospital; but, upon notice of a purposed change in a zoning ordinance prohibiting such use of the premises, they abandoned their purpose. Since August of 1922, the plaintiffs had done no business in conducting a hospital. In May, 1923, the Suburban Realty Corporation sold the premises on Charlesgate East. The defendant denied making the promises alleged. No agreement in writing was made by the parties and no memorandum in writing was put in evidence, unless it be that a certain letter of the real estate agents to the plaintiff Morse with an enclosed draft for a prospectus to be issued to obtain financial support for the hospital constitutes such a memorandum.

[4] A memorandum to satisfy the statute of frauds need not be a formal document intended to serve as a memorandum of the contract; but it must contain the terms of the contract agreed upon-the parties, the locus (if an interest in real estate is dealt with), in some circumstances the price, Bogigian v. Booklovers' Library, 193 Mass. 444, 79 N. E. 769, and it must be signed by the party to be charged or by some one authorized to sign on his behalf, Riley v. Farnsworth, 116 Mass. 223; Forman v. Gadouas, 247 Mass. 207, 212, 213, 142 N. E. 87.

[5] The papers before us do not meet these requirements. It is impossible to obtain from them the terms alleged to have been agreed upon. The language shows that the $160.000 named as a price is not the agreed price. "The cost of the land may be $5,000 less." The rental, $18,000 a year, is merely suggested, and clearly has not been agreed upon. The purchaser there proposed-the "Riverbank Hospital Real Estate Trust" never came into being. Moreover, there is nothing in them to show that J. D. K. Willis & Co., in signing the letter, were acting for the defendant. It is fully as reasonable to regard them as agents for the plaintiffs presenting the proposition as a suggestion wholly for the benefit of the plaintiffs who are to complete and issue the prospectus. The statute of frauds, G. L. c. 259, § 1, thus furnishes a complete defence to the count in contract which, in substance, seeks to enforce a contract for the sale of an interest in or concerning land.

[6] We find nothing which precludes the defendant from pleading the statute. If we assume that the plaintiffs failed to renew their leases at Newbury street, conveyed their business to a corporation, broke up their hospital force and ceased doing business while awaiting performance by the defendant, all this is a natural consequence of failing to obtain the writing called for by the statute. This is not such part performance as in equity would prevent the operation of the statute. Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418;

(162 N.E.)

Tracy v. Blinn, 236 Mass. 585, 129 N. E. 356; They formed the corporation February 28, Taber v. Shields, 258 Mass. 511, 155 N. E. 643; Linsky v. Exchange Trust Co., Mass., 156 N. E. 689. There has been no benefit received by the defendant which he is enabled to retain by using the statute as a defence. The circumstances differ essentially from those which, in Williams v. Carty, 205 Mass. 396, 91 N. E. 392; People's Express, Inc., v. Quinn, 235 Mass. 156, 126 N. E. 423, and Curran v. Magee, 244 Mass. 1, 138 N. E. 1, led to a different result.

[7-10] The statute of frauds is not a defence to the cause of action in tort. The rep resentation alleged to be false, fraudulent and injurious does not relate to the "character, conduct, credit, ability, trade or dealings of any other person"; and so is not within G. L. c. 259, § 4, the only provision of that statute which deals with false representations. The trial judge directed a verdict for the defendant upon the tort count. This order can be sustained only if there were no evidence which would support a verdict for the plaintiffs. There was evidence which would support findings that, before the plaintiffs formed the new corporation and before the time within which they might have renewed their leases at Newbury street, they were told by the agent of the defendant authorized to negotiate for him that the title to the premises on Charlesgate East and Beacon street was good; that by this statement and others in relation to the same subject matter already stated in this opinion they were thus led to make no independent examination of the title, and, in the expectation that nothing in that title would prevent the use of these premises for a hospital were led to neglect to endeavor to renew the existing leases. There is no dispute that the representation was untrue. There is no claim that the agent knew it to be untrue. It is settled law, however, that an untrue statement made as of the knowledge of the speaker may be actionable although he is ignorant of the falsity, if the other elements necessary to an action for deceit are present. Bates v. Cashman, 230 Mass. 167, 168, 119 N. E. 663, and cases cited. Those other elements are that the statement is made to influence the action of the plaintiff, that it is material, and that he acts upon it to his hurt. Litchfield v. Hutchinson, 117 Mass. 195. Manifestly the statement could be found to be intended to influence the plaintiffs' conduct; but was it material and harmful? Unless a party suffers injury from a wrong he has no remedy by action of tort. Goodwin v. Dick, 220 Mass. 556, 107 N. E. 925.

[11, 12] If, as the declaration alleged, the contract was unilateral, the defendant was not bound until the plaintiffs did the acts, the doing of which constituted the consideration and rendered the agreement binding.

1922. The jury could have found that the representation then had been made, although the exact date is in controversy. But they did not make the conveyance to the corporation, also essential to a binding contract, until nearly a year later, February 12, 1923. The agreement, thus, did not become a binding contract till long after they knew that the representation was false. They had learned of its falsity, and they had continued their negotiations for a substituted performance upon other premises unaffected by the representation. They did not abandon negotiations because of the state of the title at Charlesgate East. Instead they did the remaining act essential to any contractual claim on the defendant, understanding that the hospital thus secured to them would be located elsewhere than at Charlesgate East. There is no allegation and no proof that giving up the chance of renewal of their leases was contemplated as consideration or part consideration for the defendant's promise.

In these circumstances, the representation had become immaterial, and the plaintiffs cannot claim that they were injured by it. It follows that the judge was right in directing a verdict for the defendant. Neither in tort nor in contract do the plaintiffs make out

a case.

The rulings on evidence relate merely to questions of damages, and need not be considered.

Exceptions overruled.

COMMONWEALTH v. CRECORIAN. Supreme Judicial Court of Massachusetts. Suffolk. June 11, 1928.

1. Criminal law 200(1)—Acquittal of first degree murder held not to bar indictment for robbery.

Acquittal on indictment for murder in the first degree held not to bar indictment for robbery, of which same assault on same person at same time was an element; the crimes charged not being identical.

2. Robbery 22-In trial for robbery, commonwealth had burden of proving larceny from person by violence and putting in fear with intent to take money.

In trial for robbery by assault and battery, the commonwealth had the burden of proving larceny from the victim's person by force and violence and putting her in fear and commission of crime with intent to deprive her of money taken.

3. Criminal law 1137(5)—Exception that it was material for commonwealth to prove that bracelet was in defendant's possession before robbery charged held admission justifying evidence of such fact.

Recital of defendant's exception that it was material for commonwealth to prove, in trial

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