(157 Mass. 224)

ROBINSON V. NORTHAMPTON ST.

RY. CO.

(Supreme Judicial Court of Massachusetts. Hampshire. Oct. 21, 1892.)

STREET RAILROADS-INJURIES TO PASSENGER ALIGHTING FROM CAR.

The fact that a lady, familiar with travel on a certain street railroad, and who was injured by the too sudden starting of a car from which she was endeavoring to alight, had requested the conductor to let her off at a certain place, does not require the conductor, in the exercise of due care, to give the lady express notice of the stoppage of the car at that place, or require any other action on his part than a reasonable stop; although the making of the request might, with other circumstances, be considered as bearing upon the questions of negligence and contributory negligence.

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

Action by John D. Robinson, administrator, etc., against the Northampton Street Railway Company for personal injuries received by plaintiff's intestate, the wife of plaintiff, in alighting from one of defendant's cars. The wife appeared and testified at a former trial, but is since deceased. There was judgment for defendant. Plaintiff excepts. Exceptions overruled.

G. M. Stearns and J. T. Keating, for plaintiff. J. C. Hammond and H. P. Field, for defendant.

FIELD, C. J. The plaintiff complains in her declaration that the street car at or near the junction of "Paradise Road," so called, and Elm street, was suddenly started up without notice to her, whereby she, being a passenger upon it, was thrown upon the ground and injured. She introduced evidence tending to show that she told the conductor"that she wished to get off at Paradise-road, and that the conductor nodded his head." Her counsel asked the court to instruct the jury that, if she "gave notice to the conductor of

noticed that Mrs. Robinson did not arise, and he thought that she intended to go further. He neither called out the name of the street nor attracted her attention in any way, and gave the signal for the car to start, after which she arose and stepped off the moving car. But the plaintiff's testimony tended to show that she got up while the car was stopped, and, while getting off, the car was started, and she was thrown as alleged in the declaration. It appeared that the car on this trip in question was nearly or quite filled with passengers. It was not the custom on this street railway for conductors of cars to call out the streets." The plaintiff had resided for five years in a house direct. ly opposite the entrance to Paradise road, and was accustomed to ride on the street cars, and was perfectly familiar with all the localities along the route on which the car was going, and it was daylight when the accident occurred. It seems to be the contention of the plaintiff's counsel that the conductor was absolutely bound to remember the notice which he received from the plaintiff, and was absolutely bound, not only to stop the car at Paradise road a reasonable length of time for the plain tiff to alight, but also to give her express notice that the car had stopped there in order that she might get off. We think that the court rightly refused to give the instruction requested, and that theinstruc. tions given were sufficiently favorable to the plaintiff. The court instructed the jury that the fact of notice, if the plaintiff gave notice, was one circumstance to be considered, in connection with others, upon the question of the negligence of the conductor and the due care of the plaintiff. The evidence would not have warranted the jury in finding that theconductor undertook to bind the corporation to an absolute contract that he would give the plaintiff express notice when the car stopped at Paradise road, or that he had any authority to make such a contract on the part of the corporation, and, even if

was for negligence, and the existence of the contract would have been only a fact to be considered in connection with all the other evidence in the case. It would have been for the jury to say whether, if there had been such a contract, the conductor was careless, either in not remembering it,

(157 Mass. 280)

BROWN et al. v. MASSACHUSETTS MUT.
LIFE INS. CO., (two cases.)
(Supreme Judicial Court of Massachusetts.
Hampden. Oct. 21, 1892.)

ACTION TO RECOVER TAXES PAID BY ASSIGNEE of
MORTGAGOR AFTER SALE.

Where the assignee of a mortgagor pays a claim for delinquent taxes on the mortgaged premises, which was proved against the mortgagor's insolvent estate, after a sale under the mortgage subject to existing liens, the amount thus paid cannot be recovered of the mortgagee, though the condition of the sale was not expressed in the deed.

Appeal from superior court, Hampden county.

Two actions by T. M. Brown and others, assignees, against the Massachusetts Mutual Life Insurance Company. Plaintiffs had judgment in each case, and defendant appeals. Reversed.

Gideon Wells, for appellant. T. M. Brown, for appellees.

FIELD, C. J. The plaintiffs are the assignees in the insolvency of the Winona Paper Company. The defendant in the first case held a second mortgage, and the defendant in the second case held a first mortgage, upon the real property of the paper company, and they sold the property under the power contained in their respective mortgages for breach of condition. The property was sold subject to any valid liens upon it, and the statement was made at each of the sales that there "were certain unpaid taxes which were claimed to be a lien upon the property." The sales were made on June 9, 1891, and there were in fact unpaid taxes due to the city of Holyoke for the year 1890, amounting to $4,356.87, and for the year 1891, as afterwards assessed, amounting to $4,219.05, which the tax collector subsequently proved as a preferred claim against the estate in insolvency of the paper company, and the claim was allowed by the court, and paid by the plaintiffs. The Holyoke Water Power Company, as second mortgagee under the power contained in its mortgage, sold the property described therein to Lewis J. Powers, and delivered to him a quitclaim deed of it, and the Massachusetts Mutual Life Insurance Company, as first mortgagee, sold the property described in its mortgage to Moses Newton and Lewis J. Powers, and delivered to them a quitclaim deed of it. In these deeds there are no covenants, and there is no reference to any liens upon the property. The deeds and the accompanying affidavits seem to be regular in form, and to have been duly recorded, and it must be taken that the deed of the insurance company conveyed the property to Newton and Powers and their heirs subject to any liens upon the property which were valid as against the first mortgage, and that the liens for the taxes assessed in the years 1890 and 1891 were such liens. The mortgagees, in selling the property, seem to have acted strictly ac

2. After a trial on the merits without objection, the sufficiency of the answer to admit the proofs of the defense cannot be questioned on appeal.

Exceptions from superior court, Worcester county; ELISHA B. MAYNARD, Judge. Action for money had and received by Leonard S. Upham against John W. Draper. Defendant had judgment, and plaintiff brings exceptions. Exceptions overruled.

Kent & Dewey and W. H. Kelley, for plaintiff. Rice, King & Rice, for defendant.

MORTON, J. It is well settled that a cestui que trust cannot maintain an action for money had and received against his trustee, under a testamentary trust, while the trust is still open. But when the accounts have been closed, and nothing remains to be done on the part of the trustee but to pay over the money found due, then an action at law to recover such money may be maintained by the cestui que trust. Johnson v. Johnson, 120 Mass. 465; Davis v. Coburn, 128 Mass. 377; Murray v. Wood, 144 Mass. 195, 10 N. E. Rep. 822; Thorndike v. Hinckley, (Mass.) 29 N. E. Rep. 579. The difficulty with the plaintiff's case is that though, according to the accounts as they now stand, there may appear to be a balance due to the plaintiff | from the defendant, the trust under which the money originally came into the hands of the defendant is still open, and there never has been any final settlement of his accounts in the probate court or between the parties. The account dated June 2, 1886, though assented to at the time by all the parties interested, including the plaintiff, who was then of age, has not been allowed by the probate court, and the plaintiff is now contesting it. It does not appear, therefore, what the amount due the plaintiff is or will be. It is possible that the compromise of June 2, 1886, may be set aside by the probate court, and the trustee compelled to account for the whole amount claimed by the plaintiff, and allowed in that court for his services, notwithstanding the stipulation re. garding them in the account. The case of Sewall v. Patch, 132 Mass. 326, was put expressly on the ground that there were no unsettled accounts between the trustee and the trust estate, and nothing remained to be done except the payment of the money. Page 329. The plaintiff insists that the account of June 2, 1886, conclusively fixed the amount due from the defendant to him, and that nothing remained for the defendant to do but to pay that amount over. To this there are several answers. The account did not purport to be a final account. It is called a second account. Again, under clause 10 of the will, the defendant could hold the fund till he deemed it safe and prudent to pay it to the plaintiff, not exceeding five years from his majority. There is nothing to show that this power was waived by the defendant, and this would bar an action till the expiration of the five years. Further, the compromise agreement of June 2, 1886, ex

a trustee's account under said will, in which heshall be charged only for the sum of twenty-four hundred sixty-one and 47100 dollars, to be held in trust for the use and benefit of Leonard Spring Uphara, [the plaintiff,] under the fifth and tenth clauses of the will." The account, dated June 2, 1886, is evidently the one referred to in this agreement, and the plain inference from the agreement is that the defendant is to continue to hold the sum named, as trustee under the will. If the compromise agreement is to be set aside as between the plaintiff and defendant, then clearly the relation between them would be that of cestui que trust and trustee under the will, with an unsettled account, also in that court, between them. On every ground, therefore, the plaintiff's contention must fail. It should be added that the argument of the plaintiff seems to be based on the assumption that the account of June 2, 1886, was allowed by the probate court. The exceptions state the contrary. The account dated June 2, 1886, with the annexed schedules, and the account between the defendantand the plaintiff, were rightly admitted; the former as containing admissions on the part of the plaintiff that the defendant was a contin. uing trustee under the will, and the latter as showing that, if the plaintiff was entitled to maintain his action, nothing was in fact due him. If he was not entitled to maintain his action, the admission of it could do him no harm. The point that the answer of the defendant did not set out that he had a right to continue to hold the funds as trustee of the plaintiff, and that he was only liable to account in the probate court, does not appear to have been taken in the superior court, and cannot be made here for the first time. The case appears to have been tried upon its merits. Exceptions overruled.

(157 Mass. 221)

HOLMES et al. v. SMALL. (Supreme Judicial Court of Massachusetts.

Franklin. Oct. 20, 1892.)
CONSTRUCTION OF GUARANTY.

Defendant promised W. to be responsible for any lumber he might sell M. until further notice. Afterwards W. entered into partnership with the other plaintiffs, and the firm furnished M. lumber without making any further arrangements with defendant. Held, that defendant could not be held responsible for the lumber so furnished.

Exceptions from superior court, Franklin county; ELISHA B. MAYNARD, Judge.

Action by Samuel Holmes and others against Herbert M. Small to recover the price of lumber alleged to have been furnished one Mitchell upon the order of de. fendant and upon his credit. The court directed a verdict for defendant, and plaintiffs except. Exceptions overruled.

Dana Malone, for plaintiffs. Edward L. Hill, for defendant.

BARKER, J. Copartners may sue for the price of partnership goods sold by one copartner in his own name, (Halliday v. Doggett, 6 Pick. 359; Gage v. Rollins, 10