tion to other facts "appearing in evidence," where such evidence is not set out in a bill of exceptions.

2. A personal demand for payment, made on the maker of a note during business hours of the day such note is payable, is good, though not made at his residence or place of business, if the maker does not object to the place of demand.

Exceptions from superior court, Suffolk county; JUSTIN DEWEY, Judge.

Action on notes by Benjamin W. Parker against Henry W. Kellogg. Defendant excepts to the ruling of the court in admitting certain evidence, and to instructions given by the court. Overruled.

The following letters were admitted in evidence over defendant's objection:

"Boston, Oct. 2, 1885. Assignment of Benjamin W. Parker from Sept. 1 to Oct. 1, 1885, is under any other assignment of any nature. The trustees will be settled to-day, it is expected, without question, and the money drawn to-day or early tomorrow A. м. H. KELLOGG, Jr., "-as tending to show that said Kellogg did know that said notes were not paid. "Boston, Oct. 1, 1885. Ben: Mr. Hart says to be ready at 12 tomorrow, as he has got a sale of some property to-day at home, and will not be in until then. I will call then. Hastily, H. Kellogg, Jr.”

Ranney & Clark, for plaintiff. Simmons & Pratt, for defendant.

office of said defendant, on the 3d day of October, between 11 in the morning and 1 o'clock. P. M., and of the $1,000 note on the 5th day of October, at said defendant's office, between 10 and 1 o'clock; and that the notes were produced on both occasions, and shown to Hart and the defendant, who were both present, and payment demanded of Hart by the plaintiff, and that, after Hart had said he was unable to pay them, the plaintiff and Hogg both turned to the defendant, and said that Hart would not pay the notes, and they must look to the defendant." "Said defendant and Hart both testified that no demand was made upon Hart by either said Parker or said Hogg at the time and place aforesaid, or at any other time." There was evidence that Hart had no piace of business of his own, but that he was in the habit of going to the defendant's office, and of using a desk there. The defendant testified "that no notice was given him of the nonpayment of the notes by said Parker or Hogg at any time, and that his first knowledge of the nonpayment of said notes was about the middle of October, when he heard from Hart that said notes had not been paid." The only evidence, therefore, of due demand and notice was the testimony of the plaintiff and Hogg as to what took placeat the defendant's office. In this state of the evidence, the court instructed the jury that, if they "found that demand on Hart was made at Kellogg's office at the hours aforesaid, as testified to by the plaintiff and Hogg, such demand would be sufficient, and that no deinand at Hart's residence was necessary." Whether the defendant's office was Hart's place of business or not, if the plaintiff made a demand upon Hart per

able. As days of grace are to be allowed on all the notes, the letters were apparently written before any of the notes was actually payable; but the letters indicate that the defendant had some knowledge of the business of Mr. Hart, the maker of the notes, and was giving attention to his means of paying them, and that the defendant meant to see to it that Mr. Hart paid them, if he had the means. They were admitted on the cross-examination of the defendant, and had, perhaps, some tendency to contradict his testimony. We certainly cannot say, on the statement of the case contained in the exceptions, that it appears that the court erred in admitting the letters, or in the instructions given to the jury with reference to the effect of the letters upon the conduct of the plaintiff, "in connection with other facts known to him and appearing in the evidence, " which evidence is not set out in the exceptions. The first note was made payable on October 2, 1885, and, allowing days of grace, was actually payable on October 5th. The last three notes, called the "smaller notes," were made payable on October 1, 1885, and, allowing days of grace, were actually payable on October 3d, October 4th being Sunday. Pub. St. c. 77, §§ 8, 9. The exceptions recite that "the plaintiff and his clerk, one Hogg, both testified that they demanded payment of the three smaller notes of said Hart at the

of the last day of grace, and produced the notes, and Hart said that he was unable to pay them, and made no objection to the place of the demand, this would be a sufficient demand, and to this effect was the instructions given by the court. King v. Crowell, 61 Me. 244; 1 Daniel, Neg. Inst. (4th Ed.) § 638. Exceptions overruled.

---

(158 Mass. 127)

MILLER v. CURTIS. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 17, 1893.) ASSAULT-EVIDENCE-PREVIOUS CONDUCT OF

PLAINTIFF.

In an action for indecent assault on plaintiff, a married woman, specific acts by and conversations with her, occurring more than 20 years before, which tended to prove that she had often made false charges of indecent assault on her, with intent to extort money from innocent men, cannot be shown either on the question of damages, or as to plaintiff's character.

Exceptions from superior court, Worcester county; J. W.CORCORAN, Judge.

Action by Agnes Miller against Edward P. Curtis for assault and battery on plaintiff, a married woman, and for attempting to have sexual intercourse with her against her consent, at Worcester and in Spencer. There was a verdict for defendant, and plaintiff excepts. Exceptions sustained.

The following evidence was admitted against the objection of plaintiff, all of which related to transactions unconnected with, and over 20 years before, the alleged assault: Charles Tenney testified that he worked for the Millers 25 years ago, and that "on one occasion he was called down cellar by Mrs. Miller to do some work, and, soon after they got down, she rushed up again, and complained to her husband that she had been insulted." Patrick Gately testified that he worked for the Millers 16 years ago, and that plaintiff told him her husband got $18 out of a man who assaulted her. Charles Fay testified he worked for one Winslow in 1867, and plaintiff at one time told him that she was going to sue Winslow for insulting her. Charles Winslow testified that nothing of an improper nature had taken place between plaintiff and himself. One Fottler testified that, 23 years before, plaintiff had said to him that "she knew how to get money out of the rich old fellows." Charles Fayerweather testified that, over 20 years before, he "drove to their home to get a halter, and met Mrs. Miller, who got it for him," and that was all that took place. A little later he had a talk with Mr. Miller, who told him that he must settle for assaulting his wife. The jury was instructed that this evidence was to be considered only on the matter of damages against plaintiff.

William A. Gile, Chas. S. Forbes, and G. A. Drury, for plaintiff. W. S. B. Hopkins, H. E. Hill, and F. B. Smith, for defendant.

KNOWLTON, J. The defendant was allowed to introduce evidence of several transactions and conversations with the plaintiff, all occurring more than 20 years ago, which tended to show that she had repeatedly made false charges of indecent assaults upon her, with a view to extort money from innocent men. The defendant denies the charge made against him in the suit, and contends that the plaintiff is trying unjustly to obtain money from him. In any case where the question is whether the defendant has committed a crime, it would naturally affect the opinion of jurors to know that he had often committed similar crimes; but evidence of such facts is never admitted to prove a defendant's guilt. Com. v. Robinson, 146 Mass. 571, 16 N. E. Rep. 452; Com. v. Jackson, 132 Mass. 16. That a person has committed one crime has no direct tendency t show that he committed another similar crime, which had no connection with the first; and a person charged with one offense cannot be expected to come to court prepared to meet a charge of another. If the doing of one wrongful act should be deemed evidence to prove the doing of another of a similar character, which has no connection with the first, issues would be multiplied indefinitely, without previous notice to the defendant, and greatly to the distraction of the jury. It is too clear for argument, under the authorities, that most of the evidence excepted to was not competent on the question of liability, and the defendant does not seriously contend that it was.

upon inatters in regard to which he had no notice, and great injustice might be done by hearing biased and false testimony to which no answer could be made. We are of opinion that it is safe and better, in cases of this kind, to adhere to the rule that excludes evidence of specific acts when offered for the purpose of showing character. In Gore v. Curtis, 81 Me. 403, 17 Atl. Rep. 314, this rule was applied to a case almost exactly like the one at bar.

There is some ground for the contention that the testimony of Fottler was admissible on the main issue, as a declaration of a purpose on the plaintiff's part to obtain money by falsely accusing men of making indecent assaults upon her. If it were clear that such a construction should be put upon the testimony it would be competent; but excluding the other incompetentevidence, and taking it alone, it is too indefinite to show that she referred to anything of this kind. It gives a remark, made by the plaintiff 23 or 24 years before the trial, in reference to getting "money out of rich old fellows," without any intimation of how she got it. The evidence excepted to was of a kind greatly to prejudice the plaintiff on the question of liability, and, it being incompetent for any purpose, it cannot be held that she was not injured by the admission of it. Ellis v. Short, 21 Pick. 142; Brown v. Cummings, 7 Allen, 507; Crowellv Porter, 106 Mass. 80; Maguire v. Railroad Co., 115 Mass. 239. In this respect the case differs from those in which it is held that the admission of incompetent evidence on an issue which is made immaterial by the verdict does not render a new trial necessary, when the evidence was not of a nature to prejudice the jury on the questions involved in their finding. See Robinson v. Railroad Co., 7 Gray, 92; Lawler v. Earle, 5 Allen, 22; Anthony v. Travis, 148 Mass. 53, 19 N. E. Rep. 8. Exception sustained.

(137 Ν. Υ. 134)

FOSHAY et al. v. ROBINSON et al.

William E. Boyd, in pro per. M. Banta, for respondents Young and others. Arthur T. Hoffman, for other respondents. Jas. C. De La Mare, for defendant Robin

son.

PER CURIAM. The plaintiff, as a sub. contractor, brought this action to fore. close a mechanic's lien, filed for the value of materials, etc., furnished to the defendant Robinson, who had contracted with defendant Boyd to build for him a house. By their contract the owner was to pay the contractor in installments, fixed by different and designated stages of the work of building, with the proviso that the workshould progress in asatisfactory manner, and that a certificate of the architects should be obtained as each of the stages was reached, and a payment required. It was also provided that the architects' certificate should not exempt the contractor from the obligation to correct previous defects in workmanship, etc. A further agreement provided for the finishing of the work by the owner in the case of the contractor's neglect to supply a sufficiency of materials or workmen. The contractor not proceeding satisfactorily, the owner notified him that if within a certain specified time he did not supply a sufficient number of workmen, he, the owner, would finish the work, and because of a failure to comply with the notice he eventually did so. At that time the contractor had nearly completed the plastering on the building, which, according to the contract, would have entitled him to the payment of the third installment of $1,800. The referee before whom the case was tried found, with evidence in the case to support such a finding, that the plastering was substantially completed, and that the sum of $284 would represent the value of the work to complete it. He also found, upon sufficient evidence, that there were expended by the owner, to remedy various defects in the previous building work done, sums of money aggregating $485. These two sums he deducted from the amount fixed as the

DEFAULT OF CONTRACTOR

MATERIAL MEN-INSTALLMENT DUE.

Where an owner, under the terms of a building contract, undertakes the completion of the building shortly before an installment is due the contractor, because of failure of the latter to comply with its requirements, the material men are entitled to liens to the amount of such installment, less the sum necessary to pay for defective work to that time, and to complete it to the stage when such installment would become due, though nothing would be due the contractor on the completion of the building. 16 N. Y. Supp. 817. Affirmed.

Appeal from supreme court, general term, second department.

Action by John Foshay and others against Frederick Robinson, contractor, and William A. Boyd, owner, John W. Young, and others to enforce a mechan. ic's lien. From a judgment of the general term (16 N. Y. Supp. 817) affirming a judgment entered on the report of a referee in favor of defendants Young and others, defendant Boyd appeals. Affirmed.

v.32N.E.no.14-66

ance remaining of $1,031 he used in liquidating pro tanto the first lien filed, viz. of defendants Young and Tripp.

The principal question raised by the record relates to the referee's decision in these respects. He decided that, inasmuch as from the evidence it was clear that the owner had fairly expended in completing the building a sum in excess of what would be due the contractor if he had completed his contract, the contractor himself was not entitled to any lien; but that, inasmuch as when the lien of the material men was filed there was in fact due by the terms of the contract from the owner a certain sum of money, such an obligation of the owner inured to the benefit of the material men, subject only to such deductions as should be allowed for the expense of completing the plastering and for remedying defects in the past work. With the referee's reasoning and conclusion in that respect we are satisfied. The fact that eventually the owner expended, in entirely finishing his house,

more than remained due under the contract, cannot affect the question of the owner's obligation as it existed at the time when the lien of these material men was filed. Had the contractor wholly completed the building at the plastering stage, he would certainly have been entitled to the installment, and its completion by the owner was in place of the contractor as to the material men, and as to them created the liability over, lessened only by what he was obliged to expend to bring the building up to the stage mentioned in the contract as the time for the third payment. The moneys were earned at that time, and the liens of these material men at once attached.

The owner, who is appellant, insists upon the commission of errors by the ref eree in his findings, but a careful perusal of the record does not bear him out in that respect, nor in respect to the soundness of any exceptions. The judgment should be affirmed, with costs to the respondents Young and Tripp as against the appellant Boyd. All concur.

(137 N. Y. 129)

CROMBIE et al. v. WALDO. (Court of Appeals of New York. Jan. 31, 1893.) FACTORS AND BROKERS-COMPENSATION-WHEN

EARNED.

Plaintiffs, real-estate brokers, were employed by defendant to procure a lease of her premises by the school trustees for school purposes, and, in an action for their commissions, it appeared that they procured the execution of a contract between the parties, by which defendant agreed to erect, within a specified time, a school building, to be approved by the superintendent of school buildings, and to lease the same when completed to the school trustees; and the school trustees agreed to lease the premises when the building was so completed. When the contract was made, the plans for the building were not prepared, and the time for the erection of the building was insufficient. Held, that the execution of the contract was not a lease of the premises, within the meaning of plaintiffs' employment, and they could not recover. 17 N. Y. Supp. 373, reversed.

Appeal from superior court of New York city and county, general term.

Action by George T. Crombie and another against Gertrude R. Waldo to recover commissions as real-estate brokers. Plaintiffs had judgment, which was affirmed at general term, (17 N. Y. Supp. 373,) and defendant appeals. Reversed. Statement by the court:

The plaintiffs were real-estate brokers in the city of New York, and the defendant owned certain real estate in that city. In June, 1889, the plaintiffs undertook to procure for her a lease of the real estate by the school trustees of the Twelfth ward of the city of New York, and they procured the execution of the following agreement by her and the school trustees: "Agreement made this tenth day of December, in the year one thousand eight hundred and eight-nine, between Gertrude R. Waldo, of the city of New York, party of the first part, and the trustees of common schools for the Twelfth ward of the city of New York, parties of the second part, as fol

lows: The said party of the first part, for and in consideration of the agreement of the said parties of the second part hereinafter mentioned, hereby agrees to erect, in accordance with the suggestions of the superintendent of school buildings appointed by the board of education of the city of New York, and as per plans to be made by John P. Leo, architect, and approved by the said superintendent of school buildings, a four-story brick building, upon the four lots of land owned by the said party of the first part, situate on the northerly side of Eighty-Ninth street, between First and Second avenues, in the city of New York, described together, as follows: Beginning at a point on the northerly side of Eighty-Ninth street, distant one hundred feet easterly from the corner formed by the intersection of the easterly side of Second avenue with the northerly side of Eighty-Ninth street, and running thence easterly along the northerly side of Eighty-Ninth street, at least one hundred feet; thence northerly, parallel with Second avenue, at least one hundred feet; thence westerly, parallel with Eighty-Ninth street, at least one hundred feet; and thence southerly, parallel with Second avenue, at least one hundred feet, to the point or place of beginning, said building to be so erected by the said party of the first part at her expense, and to be completed on or before the first day of May, 1890, and approved by the said superintendent of school buildings. And the said party of the first part, for the consideration aforesaid, hereby further agrees that, when the said building shall be so completed and approved of by the said superintendent of school buildings, she will then make and execute a lease to the said parties of the second part, of the said building and lots of land, for the term of ten years from the time of such completion and approval, at an annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause. And the said parties of the second part, for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said building is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease. In witness whereof, the said parties hereto have hereunto set their hands and seals, the day and year first above written. GERTRUDE R. WALDO, [Seal.] JOHN WHALEN, [Seal.] WM. E. STILLING, [Seal.] LEOPOLD WORMSER, [Seal.] ANTONIO RASMIS, [Seal.] ROBT. E. STEIL, [Seal.] Trustees of Common Schools for the Twelfth Ward of the City of New York.." The plaintiffs claimed that they were entitled to commissions as brokers for procuring the execution of that agreement. The defendant refused to pay them, and then they brought this action to recover the commissions. The case was brought to trial before a jury.