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siduary clause would be found commonly. It follows immediately after those giving pecuniary legacies and specific bequests. The donative phrase with which the clause opens, namely, "I bequeath and devise," is technically apt to dispose of real estate. The persons therein named were her dearest friends with whom for many years her association had been very intimate. Although Mrs. Kingsley and Miss Carlander were given small pecuniary legacies by earlier clauses, her two nieces were not so remembered. They would receive a small amount unless this is construed as a true residuary clause. The words, "and also the remainder, if any" can have no meaning unless construed to include something more than the jewelry. There was no "remainder" of the jewelry because it all was disposed of. These words are disconnected from the other bequests of the clause and hence naturally would be given a broad interpretation. "Remainder" is a word sufficiently comprehensive in meaning to include whatever may be left of the estate after paying the earlier bequests, including land as well as money. In its strictly legal significance, it relates to real estate. Woodbridge v. Jones, 183 Mass. 549, 67 N. E. 878.

We incline to the view that these considerations are enough to distinguish the case at bar from Bullard v. Goffe, 20 Pick. 252, and to indicate a purpose to include in clause seventh not only the rest of the personal property but also the real estate of the testatrix.

Decree accordingly.

(214 Mass. 469)

PETTINGILL ANDREWS CO. V.
SCHRAFFT et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)

1. CONTRACTS (§ 176*)-CONSTRUCTION-PROVINCE OF COURT.

The construction of a written instrument is for the court.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 767-770, 917, 956, 979, 1041, 1097, 1825; Dec. Dig. § 176;* Trial, Cent. Dig. 326.1

2. CONTRACTS (§ 278*)-PERFORMANCE-CONDITIONS-CONSTRUCTION.

Defendants, in having alterations and repairs made in the factory occupied by them, employed electrical contractors to put in an electric lighting equipment. The contractors ordered the equipment from plaintiff, who wrote to defendants that the contractors had no account with them, but had informed them that defendants would pay for the materials on the completion of the work, upon receipt of an order by the contractors. The defendants wrote on the bottom of this letter, and signed it, "Will do as above on receipt of an order,' and the contractors wrote, underneath that, that they agreed to the above plan. Held that, as the whole instrument is to be construed together, it cannot be taken that plaintiffs were excused from producing and serving upon defendants the order mentioned; the indorsement

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MORTON, J. The defendants were having certain alterations and repairs made in a factory building occupied by them in Boston, and in connection therewith had employed a firm of electrical contractors by the name of Millett & Miles to put in an electric lighting equipment. Millett & Miles ordered supplies for the same of the plaintiffs. The plaintiffs wrote a letter to the defendants saying in substance that Millett & Miles had ordered from them supplies for the electric wiring which they were doing in the defendants' factory; that they, the plaintiffs, had no account with Millett & Miles; that Millett & Miles informed them that the defendants would pay them, the plaintiffs, for the same on completion of the work, on receipt of an order from Millett & Miles, and expressing the hope that that would meet their approval. The defendants wrote at the bottom of this letter the following, and signed it: "Will do as above on receipt of an order from Millett & Miles." Millett & Miles wrote underneath this, "We agree to above," and signed it, and returned the letter to the plaintiffs with these indorsements upon it. So far as appears the defendants had no knowledge of the indorsement made by Millett & Miles on the letter until several months after Millett & Miles had finished their work and been paid in full. Immediately after the completion of the work Millett & Miles absconded. The plaintiffs made diligent efforts to find Millett & Miles to procure an order from them, but were unsuccessful, and no order has been obtained from them unless their indorsement on the plaintiffs' letter to the defendants above referred to constituted such order. The case was sent to an auditor and he in effect ruled that what Millett & Miles had written did constitute such order and that its subsequent presentation to the defendants by the plaintiffs constituted a "receipt of an order from Millett & Miles" within the meaning of the words written and signed by the defendants. At the trial the plaintiffs introduced the auditor's report and rested. The defendants introduced no evidence and asked the court to rule that on all the evidence the plaintiffs were not entitled to recover and to direct a verdict for the defendants. Other rulings

(214 Mass. 463)

were asked for by the defendants to the effect that they were not liable unless the MABRY v. BOSTON ELEVATED RY. CO.

(two cases).

(Supreme Judicial Court of Massachusetts. Suffolk. May 27, 1913.)

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plaintiffs procured and presented to them an order from Millett & Miles, and that no such order had been procured and presented. The court refused to give the rulings requested 1. TRIAL (§ 251*)-INSTRUCTIONS-MISLEADand the defendants excepted. Thereupon, ING INSTRUCTIONS-APPLICATION TO ISSUES. by agreement of parties, a verdict was directed for the plaintiffs, subject to the defendants' exceptions, for the amount found fendants' exceptions, for the amount found

due by the auditor.

[1, 2] We think that the rulings requested should have been given. The question before us relates to the construction of a written instrument and as such is for the court. The letter of the plaintiffs to the defendants and the indorsement by the defendants thereon and that of Millett & Miles are all to be taken together. It is plain, and we understand the plaintiffs in effect to so admit, that the defendants agreed to pay only on receipt of an order from Millett & Miles, and we do not see how the indorsement by Millett & Miles, "We agree to above," can be construed as an order. By "above" is obviously meant the statement in the letter of the plaintiffs to the defendants that they had been informed by Millett & Miles that the defendants would "pay for the same [the supplies] when the work was completed, on receipt of an order from them [Millett & Miles]," and the indorsement by the defendants that "on receipt of an order from Millett & Miles" they will do as in effect requested by the plaintiffs. That is, the defendants agree in substance and effect that on receipt of an order from Millett & Miles they will pay the plaintiffs, and Millett & Miles agree that on receipt of an order from them they may do so. This, it seems to us, is what, according to its natural construction, the language used means, and, if it is, then it shows that Millett & Miles could not have understood or intended the indorsement made by them as an order. And the subsequent conduct of the plaintiffs in endeavoring to find Millett & Miles to procure an order from them tends to show that they also did not at the time understand that what Millett & Miles had written and signed was the order called for. While documents drawn up by business men amidst the press of business affairs should not be construed too strictly, some meaning must be given to the language used and in the absence of anything tending to show that the words employed were used in a different sense the common and natural meaning must be given to them. As the view which we have taken of the effect of the indorsement by Millett & Miles is decisive against the right of the plaintiffs to recover, it is not necessary to consider whether, as argued by the defendants, they would have been entitled to notice from the plaintiffs in case they had procured an order from Millett & Miles. Exceptions sustained.

Where, in an action for injuries to a street car passenger while alighting, the issue was whether the car started prematurely from a full stop, or whether the passenger attempted to leave a moving car, instructions referring to liability for jolts and jerks in the movement of the car, and to the liability where an alighting passenger is injured by reason of a lurch of the car as it was coming to a stop, were objectionable, as liable to mislead the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]

2. CARRIERS (§ 347*)-INJURIES TO PASSENGERS ALIGHTING FROM SLOWLY MOVING CAR-CONTRIBUTORY NEGLIGENCE.

A passenger, attempting to alight from a slowly moving car, is not as a matter of law guilty of negligence, and whether an ordinarily prudent person would have done so under similar circumstances is for the jury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.*1

3. CARRIERS (§ 321*)-INJURIES TO PASSENGERS MISLEADING INSTRUCTIONS.

Where, in an action for injuries to a street whether the car started prematurely from a car passenger while alighting, the issue was full stop, or whether the passenger attempted to leave a moving car, and the street railway company showed that there was no invitation to alight at the time of the accident, nor negligence in bringing the car to a stop, an instruction that, if the accident occurred through the passenger getting off the car before it stopped, the jury must determine whether she was in the exercise of due care, and whether the company was negligent, was objectionable as leading the jury to infer that, though the car was in motion, they might find the company negligent for the failure of the conductor to warn the passenger not to alight until the car should stop.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]

4. CARRIERS (§ 303*)-INJURIES TO PASSENGERS-LIABILITY.

invite a passenger to alight while the car is A street railway company, which does not moving, and not negligent in bringing the car to a stop, is under no duty to warn or to restrain a passenger alighting until the car will stop, and it is not liable for injury to a passenger alighting before the car stops.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*]

Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Actions by Martha Mabry against the Boston Elevated Railway Company, and by Louis Mabry against the same defendant for expenses incurred in the treatment of the wife on account of injuries. There was a verdict for plaintiffs, and defendant brings exceptions. Sustained.

Jos. P. Walsh, of Boston, and C. J. Muldoon, Jr., of Somerville, for plaintiffs. John T. Hughes, of Boston, for defendant.

DE COURCY, J. [1] As both parties | obey the instruction" of the conductor to agree, the issue raised by the pleadings and "wait until the car stops." From this the the evidence in these cases was narrow and jury would be likely to infer that notwithwell-defined. The testimony offered for standing the car was in motion they might Martha Mabry, hereinafter called the plain- find the defendant guilty of negligence if the tiff, was in substance that the car had come conductor failed to warn the plaintiff not to to a stop and six passengers had alighted, get off until the car should stop. On the and that before the plaintiff, in the act of defendant's version, upon which the judge alighting, had an opportunity to step from was then charging, there was no invitation the running board the conductor gave the to alight at the time of the accident and no two-bell signal and the car started with a negligence in bringing the car to a stop, and, sudden jerk, throwing her to the station as there was no duty to warn or restrain platform. On the defendant's evidence the the plaintiff, the failure to warn would not injury was caused by the plaintiff's attempt constitute negligence. to leave the moving car before it had come to a full stop. If the jury believed the plaintiff's story, they were well warranted in finding a verdict in her favor. If they accepted the defendant's version of the facts, it was their duty to return a verdict for the defendant; and they should have been so instructed.

On the declarations and the evidence there was no middle ground. The plaintiff's contention was, not that the car started violently, but that it started prematurely, from a full stop. For that reason the references in the charge to liability for jolts and jerks in the movement of a car were uncalled for; and the discussion as to liability when an alighting passenger is injured by reason of a lurch of the car as it is coming to a stop was foreign to the evidence and the issue, and liable to mislead the jury. The defendant's counsel called these matters to the attention of the judge at the close of the charge and duly excepted thereto.

Undoubtedly there are cases arising from an injury to a passenger while alighting from a slowly moving car where there is evidence for the jury both as to the passenger's due care and the carrier's negligence. But this was not one of those cases. If the jury believed that the plaintiff was injured by leaving the car before it stopped, there was nothing in the evidence before them that constituted negligence on the part of the defendant. The failure of the court to charge the jury that such was the law, and the portions of the charge that were inconsistent therewith, were specifically called to the attention of the court and exceptions were duly taken by the defendant. Although the charge in some respects is above criticism, yet in view of the portions which have been referred to we are of opinion that considered as a whole it discloses prejudicial error, entitling the defendant to a new trial.

In view of the result to which we have come, we do not deem it necessary to consider the portion of the charge that deals with the witness Murphy, to which the defendant excepted on the ground that it was in violation of R. L. c. 173, § 80. Exceptions sustained.

(215 Mass. 260)

KYLE v. BOSTON ELEVATED RY. CO.
(Supreme Judicial Court of Massachusetts.
Suffolk. June 17, 1913.)
STREET RAILROADS (§ 100*) INJURIES TO
PERSONS ON TRACKS-CHILDREN.

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[2-4] The jury were rightly told that the issue of the plaintiff's due care was one of fact for them. For even if the car was slowly moving, coming to a full stop as the defendant contended, it could not be ruled as matter of law that the plaintiff was careless in attempting to alight. Whether an ordinarily prudent person would do so under the circumstances was a question for the jury. Marshall v. Boston Elev. R. R., 203 Mass. 40, 88 N. E. 1094. But nowhere in the charge were the jury told, as they should have been, that if the plaintiff left the car before it stopped there was no evidence, on the facts disclosed, of negligence on the part of the defendant and consequently no liability on its part. On the contrary they were instructed that "if the accident occurred through the plaintiff getting off the car before it stopped, and it was in consequence of that, it is for you to say whether the plaintiff was in the exercise of due care, and it is for you to say as to whether the defendant was negligent." And substantially the same statement was made elsewhere in the charge. It was not the equivalent of the law to which the defendant was entitled to say that the plaintiff would not be entitled to recover if she "was hurt because the car was moving and because she did not

Where plaintiff's intestate, a boy nearly 6 years old, started to run across a well lighted street with a rapidly approaching street car in plain sight, well lighted, and so near that it struck him when he reached the middle of the track, resulting in his death, and there was no evidence that he looked or listened, or exercised any care at all for his own safety, a directed verdict for defendant was proper, for even a boy of his age must use such care as he is capable of.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 217; Dec. Dig. § 100.*]

Report from Superior Court, Essex County; Marcus Morton, Judge.

Action by Margaret Kyle, administratrix, against the Boston Elevated Railway Company. Verdict was directed for defendant,

and the case reported to the Supreme Judi- | 740, and Russo v. Charles S. Brown Co., 198 cial Court. Judgment ordered on the verdict.

W. W. Clarke, of Boston, and C. J. Muldoon, Jr., of Somerville, for plaintiff. Henry S. MacPherson and John B. Mahar, both of Boston, for defendant.

MORTON, J. This is an action of tort to recover for the death of the plaintiff's child, a boy 5 years and 11 months old, who was run over and killed on Huntington avenue at about 7:25 o'clock in the evening of May 4, 1906, by a car operated by the defendant company. At the close of the evidence a verdict was ordered for the defendant on the ground that the plaintiff's intestate was not in the exercise of due care. The case is here on the plaintiff's exceptions. We do not find it necessary to consider whether there was evidence of gross negligence on the part of the motorman since we are of opinion that the ruling was right on the ground on which it was put.

Mass. 473, 84 N. E. 840, than the cases of McDermott v. Boston Elev. Ry., 184 Mass. 126, 68 N. E. 34, 100 Am. St. Rep. 548, and Breen v. Boston Elev. Ry., 211 Mass. 519, 98 N. E. 511, on which amongst others the plaintiff relies.

Judgment on the verdict for the defendant.

(215 Mass. 262)

WALUKEWICH v. BOSTON & N. ST. RY. (two cases).

(Supreme Judicial Court of Massachusetts. Essex. June 17, 1913.)

STREET RAILROADS (§ 100*) INJURIES TO CHILDREN-CONTRIBUTORY NEGLIGENCE. Where plaintiff's intestate, a child of six years, started to run across a track, in front of a rapidly approaching street car, in plain view, and so near that it struck her just as she got on the track, and there was nothing to obstruct her view or distract her attention, and the evidence failed to show that she used any care at all for her own safety, there could be no recovery, for even a child of tender years must use some care under such circumstances. roads, Cent. Dig. § 217; Dec. Dig. § 100.*]

[Ed. Note.-For other cases, see Street Rail

Appeal from Superior Court, Essex County; Robert F. Raymond, Judge.

Action by Joseph Walukewich, administrator, against the Boston & Northern Street Railway. Judgment for defendant. Plaintiff appeals. Affirmed.

J. B. Ferber and Innes & Turtle, all of Boston, for appellant. Sweeney & Cox, of Lawrence, for appellee.

The evidence showed that the plaintiff's intestate, whom we shall speak of as the plaintiff, was playing in the park with three or four other boys somewhat older than himself, and that they all started to run across the avenue towards Ward street. Two others got over safely, but the plaintiff, who was the last, got about as far as the middle of the track, when he was struck by the car. The car was in plain sight and well lighted, and the street also was well lighted. There is nothing to show that the plaintiff looked or listened, or attempted in any way to exercise any care to avoid a collision, but started with the other boys to run across the track in front of a rapidly approaching car which was so near to him that it struck him when he had got only half way across the track. We assume what is, of course, self-evident that due care on the part of a child of 6 does not and cannot involve, the same degree of heedfulness as in the case of an adult, and that the fact that a child is following other children may under some circumstances be considered as bearing on the question of its due care but after making all proper allowances something must remain which shows the exercise of some care, and we are unable to find that in this case. The place where the accident happened was not on a crosswalk, as in McDermott v. Boston Elev. Ry., 184 Mass. 126, 68 N. E. 34, 100 Am. St. Rep. 548, but was in the space reserved for the street railway, and the case resembles more we think the cases of Young v. Small, 188 Mass. 4, 73 N. E. 1019, 108 Am. St. Rep. 457, Murphy v. Boston Elev. Ry., 188 Mass. 8, 73 N. E. 1018, Morey v. Gloucester St. Ry., 171 Mass. 164, 50 N. E. 530, Stackpole v. Boston Elev. Ry., 193 Mass. 562, 79 N. E.

MORTON, J. We think that these cases are governed by Kyle v. Boston Elevated Railway, 102 N. E. 310. The evidence leaves it uncertain whether the child ran onto the track after two of her playmates whom she was following, or whether they turned and ran back to the sidewalk, and she started to run across the track alone. Some witnesses testify one way and some the other in regard to that matter. But whichever account of what happened is taken, the result is the same in regard to the question of the child's due care. She started to run across the track in front of a rapidly approaching car only a short distance away without apparently taking any thought for her safety. The car was so near that she hardly had got upon the track when the car struck her. There was nothing to obstruct her view or to distract her attention and nothing but her age can be pleaded as an excuse for her conduct. But the fact that she was of tender age does not alone entitle the plaintiff to recover. The defendant is not an insurer. In order to entitle the plaintiff to recover, his intestate must have exercised such care as she was capable of. as she was capable of. The difficulty with

the plaintiff's case is that she does not ap-manded to superior court for further propear to have exercised any care at all. ceedings. The result is that the exceptions must be overruled in each case. So ordered.

(215 Mass. 116)

STROUT v. UNITED SHOE MACHINERY CO. et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)

1. EQUITY (§ 265*)-AMENDMENTS-STATUTORY PROVISIONS.

Rev. Laws, c. 173, § 48, permitting the court at any time before final judgment to allow any amendment in form or substance to any pleading to enable plaintiff to maintain the action for the cause for which it was intended to be brought, applies by analogy to equity cases, and the superior court in an equity case had power to allow an amendment to the complaint.

[Ed. Note.-For other cases, see Equity, Cent. Dig. $$$ 541-543; Dec. Dig. § 265.*] 2. CORPORATIONS (§ 320*)-OFFICERS TION BY STOCKHOLDERS.

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Damages resulting to stockholders in a corporation from the improper management of the corporation and the willful sacrifice of its interests can only be recovered by the corporation, and cannot be recovered by such stockholders in an action against the delinquent directors and the corporation.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1426-1431, 1433-1439; Dec. Dig. § 320.*]

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3. PLEADING (§ 236*) AMENDMENT COмPLAINT TIME OF ALLOWANCE. The superior court could permit a proper amendment to the complaint, even after rescript ordering final judgment.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 601-605; Dec. Dig. § 236.*] 4. PARTIES (§ 61*)—SUBSTITUTION.

A motion to substitute a moving party as party plaintiff must be assumed to have been made with at least the consent and approval of the original plaintiffs, where it was made by the same counsel who originally brought the suit.

[Ed. Note. For other cases, see Parties, Cent. Dig. 97; Dec. Dig. § 61.*] 5. PLEADING (§ 236*)-AMENDMENT OF COM

PLAINT.

It is not an objection, as a matter of law, to the allowance of a motion to amend the complaint,, that under the amendment complicated issues may be raised, involving a consideration of foreign laws and the powers of officers appointed by a foreign state, if the amendment was otherwise proper.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 601-605; Dec. Dig. § 236.*]

Report from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Charles A. Strout, trustee (by substitution), against the United Shoe Machinery Company and others. On report from a judge of the superior court, after making an order dismissing the bill, and allowing a motion substituting plaintiff as party plaintiff and amending the bill. Order allowing motion affirmed, and case re

The action as originally brought was by stockholders of a corporation to recover damages resulting to them from the improper management of the corporation and the willful sacrifice of its interests by the directors.

Whipple, Sears & Ogden and Dunbar & Rackemann, all of Boston, for plaintiff. Coolidge & Hight, of Boston, for defendants.

RUGG, C. J. This case now comes before us on a report from a judge of the superior court who, after the decision in 299 Mass. 539, 95 N. E. 929, ordering the bill to be dismissed, allowed a motion substituting Charles A. Strout, trustee of the Goddu Sons Metal Fastening Company, as party plaintiff and an amended bill of complaint. The case has been elaborately and ably argued in behalf of the defendant, but in the view we take the points upon which the decision hinges lie within narrow compass.

[1-3] The defendant challenges the power of the court to allow such an amendment. The power of the court in this regard is very broad. R. L. c. 173, § 48, although not in express terms governing suits in equity, has been treated as applying to them and stating general principles touching amendments in equity. Drew v. Beard, 107 Mass. 64, 76; King v. Howes, 181 Mass. 445, 63 N. E. 1062; Day v. Mills, 213 Mass. 585, 587, 100 N. E. 1113, and cases cited. At the lowest the practice prescribed by the statute is adopted by analogy in equity. The allowance of the amendment by the court is made "conclusive evidence of the identity of the cause of action." Tracy v. Boston & Nor. St. Ry., 204 Mass. 13, 17, 90 N. E. 416, 417. Moreover, although no evidence was offered before the trial judge he heard statements of respective counsel. These statements are not reported and it is impossible for us to review the action of the judge, which must have been based in part upon such statements and the

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inferences rationally drawn from them. Under these circumstances it is not necessary to analyze the amended bill nor compare it nicely with the one originally filed. enough to say that the damages which accrued to the original plaintiffs and which they sought in their own names can be recovered only by the corporation in which they were stockholders, and perhaps only in the present form of action. It was competent for the court to grant the amendment even after rescript ordering final judgment. Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400.

[4] The motion of Mr. Strout must be assumed to have been made with the consent and approval if not by the active co-operation of the original plaintiffs. It was made by the same counsel who brought the suit

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