commissioners and that there was a discussion at these hearings as to the buildings on the "Cutter Homestead" lot and the value of them, and that there was no suggestion that any building on that lot was personal property.

After an examination of the evidence on which the case was decided we affirm the finding as to an estoppel arising out of the partition proceedings.

Francis J. Carney, of Boston, for plaintiffs. Hollis R. Bailey and Otto C. Scales, both of Boston, for defendant.

DE COURCY, J. These are cross-actions arising out of a written agreement for the erection of a building, made between the parties, Loomer and Allen, hereinafter called the contractors, and Frank S. Harlow, the owner. It was agreed therein that the con

and perform all the work for the erection and

So ordered.

(214 Mass. 415)

LOOMER et al. v. HARLOW. HARLOW v. LOOMER et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 20, 1913.)

1. CONTRACTS (§ 319*)-GROUNDS OF REFORMATION-MISTAKE-RIGHTS OF PARTIES. Where by reason of mistake or misapprehension the requirement of painting is improperly included in a building contract, or the allowance therefor omitted from the stipulated contract price, the contractor's remedy, if any,

is by reformation of the contract.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 14931507; Dec. Dig. § 319.*]

2. EVIDENCE (§ 441*) PAROL EVIDENCE WRITTEN CONTRACTS.

Where parties to a building contract put their agreements in writing, not ambiguous as to the subject of painting, the contract could not be varied or controlled by conversations, alleged to have occurred at and before the time it was signed, showing that the contractor was not required to do the painting.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 20302047; Dec. Dig. § 441.*]

3. CONTRACTS (§ 346*)-ACTION-PROOF AND VARIANCE.

Under a count averring performance of a written contract, the terms of which required the contractor to do the painting, there could be no recovery on proof that he was not required to do the painting, since such proof was a variance.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.*]

* * as required by them as general contractors, as shown on the drawings and described in the specifications" prepared by the architects.

The principal question in dispute between the parties is whether the contractors were. bound by the written agreement to do the painting. Admittedly this work was done by the owner with the knowledge of the contractors, and he seeks to recover the value thereof either in his cross-action, or by deduction from the contract price in the action brought by the contractors. In support of his claim he seasonably contended at the trial before the auditor and afterwards before the court, that the written contract was clear and unambiguous as to the painting and could not be varied by parol evidence. The question is before us on the owner's exceptions to the refusal of the court to give the following rulings requested:

"5. That the said written contract together with the said specifications is clear and unambiguous and establishes what material said Loomer and Allen were to provide and what work they were to perform and what sum of money they were to receive for the same.

"6. That according to the terms of the written contract said Loomer and Allen were legally bound to find all the materials, labor, apparatus, etc., for painting and finishing all the outside and inside woodwork and all the outside and inside metal, including the ornamental iron work as called for in the specifications at page 29."

ING.

In an action by a building contractor for the balance of "the amount of the contract," there can be no recovery unless there has been a complete performance of it.

[Ed. Note.-For other cases. see Contracts, Cent. Dig. § 1458, 1476, 1477, 1479, 14931507; Dec. Dig. § 319.* ]

Exceptions from Superior Court, Middlesex County; John B. Ratigan, Judge.

Action by Guy Loomer and others against Frank S. Harlow, with cross-action by defendant. Judgment for plaintiffs, and defendant excepts. Exceptions sustained.

the outside and inside woodwork, and all bor, apparatus, etc., to paint and finish all the outside and inside metal, including the ornamental iron work." It is apparent from the written agreement and was clearly understood by the parties and the architect, that the painting was embraced in the specified work of the "general contractors," together with the mason work, plastering, carpenter, iron and other work set out in the specifications. Even if it should be assumed that there is some ambiguity in the language as to allowances, as suggested by the auditor,

LORING, J. The amended declaration in this action contained two counts, one at common law for bodily suffering and the other under the Employer's 'Liability Act for the death of the plaintiff's intestate. The defendant was engaged in the work of taking down and carrying away a bank or hill of sand and gravel. At the foot of the slope of the hill there was a pit or hole some 25 feet long, 12 feet wide and 4 feet deep. In this pit were two buckets 3 feet deep and 3 feet wide. Two men with long poles stood on the slope of the hill to loosen the sand and gravel which thus set in motion ran down into and filled the buckets. The buckets were then hooked on to a block running on a cable (as we understand the bill of exceptions) and pulled across to the railroad where they were dumped into cars and carried away. On the morning in question, while the intestate was on the slope, an avalanche of sand and gravel carried the intestate down the slope on to one of the buckets. One of his legs was caught between the bail of the bucket and the bucket itself, and before he could extricate himself he was covered with sand and died of suffocation. The jury were warranted in finding that this accident was caused through the negligence of one Connors, who was admitted by the defendant to be a superintendent within the meaning of the employer's liability act. The negligence (which the jury were warranted in finding) consisted in this: Early in the morning of the day of the accident one of the gang loading the bucket, which the intestate was not at work upon, went on top of the hill with a sledgehammer and knocked down a frozen 4-foot overhang at the top of the slope. He then walked along the top to the other end of the slope, being the end where the plaintiff's gang was at work, and found a crack about an inch wide, some 5 or 6 feet long, and some 4 feet back from the edge of the slope. The witness then called to Connors, the superintendent, that there was a crack at that end of the slope, and that the overhang "ought to be broken the same as I broke my end," and that it was not safe to work underneath it. To this Connors answered that he did not think it was necessary; that it was safe enough. At this time the intestate was at work on the slope below the overhang just spoken of, loosening the sand with a pole. The talk between the witness and Connors was in English, and the intestate (an Italian) did not understand English. Thereupon the witness told the intestate in Italian that he (the witness) did not think it safe for him (the intestate) to work where he was working, but that Connors "did not think it [the overhang] would come down"; that Connors "said that it would not come down." The overhang did break off as the witness said it would, and caused the avalanche which killed the intestate.

[1] On this evidence the plaintiff was not

At common law Connors was a fellow servant. On the plaintiff's evidence the intestate was an experienced workman, having been at work on this bank for 18 months. He had been told of the conditions which might make the place where he was at work dangerous and chose to continue his work in reliance upon Connors. In this respect the case differs from Gettins v. Kelley, 212 Mass. 171, 98 N. E. 684. The assurance of safety in McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, was given by the defendant himself, while in the case at bar it was given by a fellow servant. Fitzsimmons v. Taunton, 160 Mass. 223, 35 N. E. 549, was the case of the caving in of a trench where the jury could find that the defendant had notice of the danger and the plaintiff did not. We find nothing in the other cases relied on by the plaintiff in this connection which requires notice.

Judgment for the defendant should be entered under the statute on the first count. [2] But this evidence did make out a case under the Employer's Liability Act on the part of a superintendent. See in this connection Carriere v. Merrick Lumber Co., 203 Mass. 322, 89 N. E. 544; Gettins v. Kelley, 212 Mass. 171, 98 N. E. 684. The third and seventh rulings asked for were rightly refused.

[3] There was error, however, in the admission of some of the declarations of the intestate which were admitted under R. L. c. 175, § 66. It had appeared from evidence introduced by the plaintiff that the intestate had a father and mother in Italy who were pretty old, and that the intestate had contributed to their support by sending them money. It also had appeared that the intestate came to this country 18 months before the accident and had been continuously in the defendant's employ since his arrival.

On cross-examination of one of the defendant's witnesses counsel for the plaintiff, against the objection and exception of the defendant, was allowed to ask why the intestate said that he sent money to his parents, and he answered that he (the intestate) said "they were in need of it"; and in answer to the further question, "Did he say why they needed it?" he was allowed to testify, "They did not get any rental from the crops and they needed the money to support themselves;" and to further questions, that he said that their farm was bad, that "the crops had come and there was not enough to pay the interest for hiring the place."

As we have already said it appeared in the evidence that the intestate came to this country in June, 1907, and remained here until he was killed on December 1, 1908. Unless the crops referred to in his declaration (admitted in evidence against the defendant's objection) were crops of 1906 or earlier years, he could not have had personal knowledge of their failure. Manifestly the

intestate were not the crops of 1906 and earlier years. These declarations therefore could not have been admitted even under R. L. c. 175, § 66, and the exception to their admission must be sustained.

As the case must go back for a new trial we will deal with matters argued here which are likely to arise there.

1. The other declarations of the intestate were properly admitted. The fact that his parents were in need of his money might well be found to rest on facts known to the intestate before he left Italy.

[4] 2. In the original second count there was an allegation that the intestate "received grievous personal injuries so that he afterwards died," and an allegation that "due notice of the time, place and cause of the injury was given to the defendant." These allegations warranted a finding that the cause of action relied on by the plaintiff when the action was commenced was one under R. L. c. 106, § 72, which had been misdescribed, and the amendment was properly allowed. R. L. c. 173, §§ 48, 121. And the finding being warranted the allowance of the amendment is conclusive evidence that the cause of action relied on originally is the same as that set forth in the amendment. Tracy v. Boston & Northern St. Ry., 204 Mass. 13, 90 N. E. 416.

Judgment must be entered for the defendant on the first count and a new trial granted on the second count.

So ordered.

(215 Mass. 292)

DICKEY v. WILLIS et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.) ACTION ( 50*)-MISJOINDER OF DEFENDANTS -TORT.

The declaration, in action of tort against two defendants, by one count set forth certain acts of one defendant, and by the other count acts of the other. defendant, without alleging conspiracy or concert between them, or that they were done as part of a common design, or any joint actions or conduct which would constitute them joint tort-feasors. Held, that there was a misjoinder of defendants.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.*]

Report from Superior Court, Suffolk County; John H. Hardy, Judge.

Action by Adam Dickey against Arthur Action by Adam Dickey against Arthur Willis and another. Heard on report from superior court. Judgment to be entered for defendants according to the terms of the report.

Geo. W. Reed, of Boston, for plaintiff. Herbert L. Barrett and Peabody, Arnold, Batchelder & Luther, all of Boston, for defendants.

RUGG, C. J. This is an action of tort against two defendants. The declaration contains two counts, one setting forth certain

acts performed by one defendant, and the other acts performed by the other defendant. But there is no allegation of conspiracy or concert between them. There is nothing which fairly can be construed as an averment of joint actions or conduct which would constitute them joint tort-feasors. The acts alleged to have been performed by each defendant are different and they are not alleged to have been part of a common design. Two persons cannot be joined as defendants in an action of tort unless they directly or indirectly co-operate in the doing of the wrong. The allegations do not bring this case within that class of actions. Feneff v. B. & M. R. R., 196 Mass. 575, 580, 82 N. E. 705, and cases cited; Fletcher v. B. & M. R. R., 187 Mass. 463, 73 N. E. 552, 105 Am. St. Rep. 414. Rep. 414. There is a misjoinder of defendants. On this ground the demurrer to both counts must be sustained.

It is not necessary to pass on the sufficiency of either count, as if it were against a single defendant, although it may be remarked that there is no averment that the representation contained in the contract between Wilson and McFarlan & Co. was made to the plaintiff or that he relied upon it.

According to the terms of the report the entry must be:

Judgment for the defendants.

(215 Mass. 13).

COGGAN v. WARD et al.

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

1. CHATTEL MORTGAGES (§ 198*)-BILL OF SALE AS MORTGAGE-POSSESSION-TITLE, Where a bill of sale of personal property absolute in form was intended as security for a debt, and was honest and valid when executed and delivered, authorizing the vendee to take possession to secure his debt, and he did so before the rights of other persons intervened, he acquired title, which related back for its validity to the date of the instrument, though at the time of taking possession the debtor was insolvent to his knowledge.

see Chattel

Mortgages, Cent. Dig. §§ 442-449; Dec. Dig. § [Ed. Note.-For other cases, 198.*]

2. BANKRUPTCY (§ 184*)-PERSONAL PROPERTY-UNRECORDED MORTGAGE-VALIDITY.

Acquisition of possession of mortgaged personal property by mortgagee, acting under an unrecorded mortgage, within a few days before bankruptcy proceedings against the mortgagee, and before third persons had acquired liens or rights by attachment, conferred on the mortgagee a title good at common law as against creditors, and also against the mortgagor's trustee in bankruptcy, under Rev. Laws, c. 198, § 1, providing that mortgages of personal property shall be recorded within 15 days from the date thereof, and shall be void if recorded subsequently, unless the property mortgaged has been delivered to and retained by the mortgagee.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*] 3. BANKRUPTCY (§ 151*)-TRUSTEES-RIGHTS. A bankrupt's trustee takes no greater title than the bankrupt, as the bankruptcy proceed