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amended provides that any party in interest may procure a decree of the superior court on certified copies of the order or decision of the board or that of a committee from which no claim of review has been filed, and such decree shall have the same effect as though rendered in a suit determined by the court, except that there shall be no appeal therefrom on findings of fact. Held, that as the proceedings under the act are analogous to the chancery practice, but as the act did not provide for exceptions, the only way to secure review of questions of law to the Supreme Judicial Court being by appeal, the general equity practice, allowing the determination of questions raised as to the admission or exclusion of evidence to be made upon appeal, applies, but rehearings will not be granted for such errors, unless substantial justice requires it.

6. MASTER AND SERVANT ( 2504, New, vol. 16 Key-No. Series)-INJURIES TO SERVANT PROCEEDINGS WORKMEN'S COMPENSATION ACT "COURT."

The Commission on Arbitration and the Industrial Accident Board, provided for by the Workmen's Compensation Act (St. 1911, c. 751) to assess the damages in case of injury to a servant, must be considered a "court," within the purview of Rev. Laws, c. 175, § 66, providing that a declaration of a deceased person shall not be inadmissible in evidence as hearsay, if the court finds that it was made in good faith, before the commencement of the action, and upon the personal knowledge of the declarant, even though the members of such committee and board are not judicial officers, within the purview of Const. pt. 2, c. 3, art. 1, defining such officers, for these bodies have authority to summon witnesses, take testimony, and make rulings of findings of fact.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 2, pp. 1672-1682; vol. 8, p. 7622.]

7. MASTER AND SERVANT ( 25034, New, vol. 16 Key-No. Series)-INJURIES TO SERVANT"ACTION"-PROCEEDINGS UNDER WORKMEN's

COMPENSATION ACT.

A proceeding under the Workmen's Compensation Act (St. 1911, c. 751) for the assessment of damages for the death of a servant, while first tried before the Commission on Arbitration and the Industrial Accident Board, must be accepted as an "action," within the purview of Rev. Laws, c. 175, § 66, authorizing the admission in evidence of declarations of a deceased person, if made in good faith, before the commencement of the action, and upon the personal knowledge of the declarant.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 128-140; vol. 8, p. 7563.]

Exceptions from Superior Court, Hampden County; Henry A. King, Judge.

Proceedings by Sidney L. Pigeon, as administrator, against the Employers' Liability Assurance Corporation, Limited. The Industrial Accident Board found for plaintiff, and defendant appeals and excepts. Exceptions dismissed. Decree affirmed.

Geo. F. Leary, Thos. C. Malley, and Geo. D. Cummings, all of Springfield, for plaintiff. Brooks & Hamilton, of Springfield, for respondent.

RUGG, C. J. This is a proceeding under the Workmen's Compensation Act. St. 1911, c. 751.

found that Joseph Pigeon came to his death through an injury arising out of and in the course of his employment by Vila A. Shaw. The first point argued is whether the finding that he was in the employ of Shaw at the time of the injury was warranted by the evidence. The finding stands upon the same footing as the finding of a judge or a verdict of a jury. It is not to be set aside if there is any evidence upon which it can rest.

[2, 3] There was evidence tending to show that the decedent was in the general employ of Shaw, who on the day in question had sent him with a horse and cart to work for the city of Springfield. Another horse and cart were sent, but without a driver. These carts were used to clean sweepings from the streets. It was the course of work for the decedent to drive one horse and cart to a dump while the other cart was being loaded, so that he was driving one or the other all the time. His general instructions as to the place and kind of work to be done were given by the superintendent of the city of Springfield. But it was the deceased's duty, under his general employment by Shaw (as testified to by Shaw), "to water the horse when he had a chance to water him; it was his duty to water the horse when he had a chance," and that he "had the care of the horse from the time he took it from the barn until he brought it back at night." Just before 12 o'clock on the day of the injury the deceased told the man in charge of the street sweepers in substance that he would take one team and go home to dinner, and on the way to dinner would water the horse. The decedent's home was in the direction of the nearest watering trough, but a considerable distance beyond it. He drove away in that direction, but before reaching the watering trough was fatally injured by the running away of the horse. It is not contended that the deceased had a right to use the horse to go home to his dinner. He carried grain for the horses and it was his duty to feed them during the noon cessation of work. This evidence warranted a finding that Shaw did not lend the decedent absolutely and unqualifiedly into the service of the city of Springfield, but that he retained the general direction of his conduct except in so far as it was surrendered to the city, and that this retention of control included the care of the horses, at least to the extent of seeing that they were watered. It was said by Knowlton, C. J., in Shepard v. Jacobs, 204 Mass. 100, 112, 90 N. E. 392, 393 (26 L. R. A. [N. S.] 442, 134 Am. St. Rep. 648): "In determining whether, in a particular act, he is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which

[1] 1. The Industrial Accident Board have

it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result." Applying this to the evidence at bar, the finding was warranted that so far as the watering of the horse was concerned the decedent was acting as the agent of his general employer and not of the city of Springfield. It was in the performance of his general duty and not in the transportation of material, as to which alone he worked for the city and was subject to its order. It commonly has been held in cases where a horse and driver have been let by a general employer into the service of another that the driver is subject to the control and therefore is the agent of his general employer as to the care and management of the horse and vehicle. See Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648, and cases cited; Hussey v. Franey, 205 Mass. 413, 91 N. E. 391, 137 Am. St. Rep. 460; Corliss v. Keown, 207 Mass. 149, 93 N. E. 143; Waldock v. Winfield (1901) 2 K. B. 596; Hunt v. N. Y., N. H. & H. R. R., 212 Mass. 102, 107, 98 N. E. 787, 40 L. R. A. (N. S.) 778. Cases relied on by the Insurance Company, like Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267, are distinguishable. In that class of cases no property of the general employer was intrusted to the agent to be used in the serv-Dorr v. Tremont National Bank, 128 Mass. ice of the new employer.

vailing in equity and not that in law. Gould's Case, 102 N. E. 693.

It is plain from sections 7 and 10, part 3,, of the act, as amended by St. 1912, c. 571, §§ 12 and 13, that the Commission on Arbitration shall make rulings of law and that such rulings of law shall be subject to review by the Industrial Accident Board, whose deci sions in turn shall be subject to review by the court, and that after the entry of a decree in the superior court all proceedings shall be the same as though rendered “in a suit duly heard and determined by said court," except that there shall be no appeal Part 3, 11, of the upon findings of fact. act. In this respect the procedure marked out by the act more nearly conforms to the practice where the hearing is before the court than to that where it is by a master. It was said in Knowles v. Knowles, 205 Mass. 290, at page 292, 91 N. E. 213, that “it is the general rule that objections to rulings made by a single judge at the hearing of an equity cause upon the admissibility of evidence can be brought before this court only by exceptions, and not by appeal with a report of the facts found or of the evidence." See, however, now St. 1913, c. 716, § 4. The practice in this commonwealth, as stated in Knowles v. Knowles, differs from that gener

[4] 2. The next point argued is that the evidence did not warrant a finding that the injury resulting in the decedent's death arose out of and in the course of his employment by Shaw. As has been pointed out, there was evidence to the effect that it was the decedent's duty to water the horse and that he was on his way to perform that duty at the time of the injury. Though he may have had at the same time the purpose to do something else not within the scope of his employment after watering the horse, that fact does not prevent the service actually rendered at the moment from being in the course of his employment. His custody of the horse for the purpose of relieving his thirst was in the performance of the business of his general employer. His service in doing this was not destroyed by his unexecuted intention to abandon his master's business after performing this duty and to take the horse for his own convenience on a journey of his own. This branch of the case is covered by Hayes v. Wilkins, 194 Mass. 223, 80 N. E. 449, 9 L. R. A. (N. S.) 1033, 120 Am. St. Rep. 549, and Reynolds v. Denholm, 213 Mass. 576, 100 N. E. 1006. See Fleischner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291.

ally prevailing in courts of chancery, the his

torical reasons for which are to be found in

this commonwealth (where there has been no 349. The general practice in equity outside issue framed for a jury) is to consider on appeal questions properly raised as to the admission or exclusion of evidence. But rehearings are not granted for such errors unless it appears that substantial justice requires it. 3 Daniell, Ch. Practice (6th Am. Ed.) 1504, 1505; MacCabe v. Hussey, 5 Bligh. N. S. 715, 729; Wilson v. Hoss, 131 U. S. ccx, Appx., 24 L. Ed. 270; Ruckman v. Cory, 129 U. S. 387, 390, 9 Sup. Ct. 316, 32 L. Ed. 728; Giles v. Hodge, 74 Wis. 360, 365, 43 N. W. 163; Kleimann v. Gieselmann, 114 Mo. 437, 443, 21 S. W. 796, 35 Am. St. Rep. 761; Saw yer v. Campbell, 130 Ill. 186, 204, 22 N. E. 458. As bills of exceptions do not lie under the Workmen's Compensation Act and the only way to bring questions of law to this court is by appeal, it follows that the general equity rule as to consideration of questions of evidence raised at a hearing before the chancellor ought to be followed. Such questions seasonably presented upon the record will be considered, but a decree will not be reversed for error in this respect unless the substantial rights of the parties appear to have been affected.

[6] The question of evidence is this: A witness was permitted to testify to the dec[5] 3. A question is raised as to the admis- laration of the deceased employé made just sibility of evidence received at the hearing. before his injury in substance that he inAlthough a proceeding under the Workmen's tended to feed and water his horse. The Compensation Act is not an equity cause, the insurer objected that this declaration was

which seems to imply a restricted meaning and which is relied on by the insurer, was used in a different connection and with ref

section provides that "a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the com-erence to the facts then before the court. mencement of the action and upon the personal knowledge of the declarant." The argument is that this section renders such evidence competent only at a trial before a "court" and that neither the Commission on Arbitration nor the Industrial Accident Board is a "court." Plainly neither is a court in the strict meaning of the word. See Opinion of Justices, 209 Mass. 607, 612, 96 N. E. 308. The members are not "judicial officers" within the Constitution. Part 2, c. 3, art. 1. But they are given authority to summon witnesses, administer oaths, hold hearings, take testimony, examine evidence, make rulings of law and findings of fact, and render decisions. See part 3 of the act. Their decisions may be enforced by appropriate proceedings in courts. The power to take testimony and make rulings of law which are subject to review by the judicial department of the government goes far to indicate that in performing those functions they are to be guided and controlled by the same general principles which would govern judicial officers in discharging the same duties.

These considerations lead to the contiusion that R. L. c. 175, § 66, applies to hearings under the Workmen's Compensation Act. Hence there was no error in receiving evidence as to declarations of the deceased employé. As there is no provision under the act for exceptions, the order must be: Exceptions dismissed. Decree affirmed.

The Workmen's Compensation Act in its practical operation affects large numbers of people. Its declared purpose is the humane one of preventing industrial accidents and providing payments for employés injured in the course of employment. It is substitutional in character for the common-law remedy for a class of injuries formerly adjusted by actions at law. The word "court" has been used in statutes with a broader significance than including simply judicial officers. See Aldrich v. Aldrich, 8 Metc. 102, See Aldrich v. Aldrich, 8 Metc. 102, 106. It may be given a signification liberal enough to include the Committee on Arbitration and Industrial Accident Board as constituted by the act, and under all the circumstances should be given such construction.

[7] It is further contended that that section of the statute is inapplicable because a proceeding under the Workmen's Compensation Act is not an "action" and hence the declaration of the deceased cannot have been made "before the commencement of the action." Here again the definition urged is too

(216 Mass. 44)

BONDY V. HARDINA. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 22, 1913.)

1. SALES (§ 200*)-EXECUTION OF CONTRACTPASSAGE OF TITLE.

There was no completed sale of goods, so as to vest title in the buyer, where, after the conwhisky and a keg of gin was made, the seller tract for the purchase of several barrels of took two barrels and a keg from his stock, and ascertained the amount of their contents, and shipped them to the buyer; the price having been left for determination according to the number of gallons in the barrels selected.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 524-528; Dec. Dig. § 200.*] 2. SALES (§ 199*)-COMPLETION OF CONTRACT.

There was a completed sale of a barrel of whisky within this state, where the contract was within the state, and left nothing to do exwas with reference to a specific barrel, which cept to ship the whisky to the buyer, so that title passed to him when the contract was executed, in view of Sales Act (St. 1908, c. 237) $ 18, providing that the property is transferred to the buyer when the parties intend it to be transferred, and section 19, rule 1, providing that the property passes when the contract is specific goods in a deliverable state, irrespective made, where it is unconditional, and covers of whether the time of payment or actual delivery be postponed.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 516-523; Dec. Dig. § 199.*] 3. INTOXICATING LIQUORS (§ 329*)-ACTION FOR PRICE-ILLEGAL SALES.

No action can be maintained for the price of liquor, the sale of which was forbidden by Rev. Laws, c. 100, § 1.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 474-481; Dec. Dig. § 329.*]

4. PAYMENT (§ 39*) - APPLICATION OF PAYMENT-ILLEGAL DEMANDS.

Where the debtor made payments "on account generally," the creditor could not apply such payments to an illegal demand based on an illegal contract; the law applying the payments to the lawful demands.

Cent. Dig. 88 104-114; Dec. Dig. § 39.*]
[Ed. Note.-For other cases, see Payment,

Action is here used in its compre hensive sense as meaning the pursuit of a right in a court of justice without regard to the form of procedure. Boston v. Turner, 201 Mass. 190, 196, 87 N. E. 634. A proceeding under the act contemplates ultimate enforcement in a judicial court and a declaration made before the institution of proceedings under the act is made before the commencement of the action. The language in Dickinson v. Boston, 188 Mass. 595, at page 597, 75 N. E. 68, 1 L. R. A. (N. S.) 664, dict.

Report from Superior Court, Hampden County; W. P. Hall, Judge.

Action by Bernard Bondy against Frank Hardina. On report from the superior court after verdict for plaintiff. Judgment on ver

Chas. G. Gardner and Ralph W. Stoddard, both of Springfield, for plaintiff. J. B. Carroll, W. H. McClintock, and J. F. Jennings, all of Springfield, for defendant.

SHELDON, J. [1] As to all but the fourth item of the account annexed to the plaintiff's declaration, it appeared that the plaintiff and the defendant made in Massachusetts executory contracts of purchase and sale. These contracts were respectively for barrels of whisky and a keg of gin. But none of them were for any specific or ascertained goods. The plaintiff, who was a wholesale liquor dealer in New York, had there several barrels of whisky and several kegs of gin. After he had made his contracts with the defendant he took from his stock two barrels of whisky and a keg of gin, ascertained the amount of their respective contents from the stamps affixed by the United States revenue officers, and shipped them by a common carrier to the defendant in this commonwealth. The defendant paid the freight on each shipment, as according to the finding of the jury he was to do.

Under these circumstances, there was no completed sale of the goods, the title to them did not vest in the defendant, and he did not become liable for their price, until the plaintiff had separated them from the general mass of his property, determined the number of gallons which they contained and thus made certain the price to be paid for them, and delivered them to the common carrier for conveyance to the defendant. Until then there were merely executory contracts between the parties. Not only was the price left to be determined according to the number of gallons in the particular packages that might be selected, but there was in the meantime no specific property which had vested in the defendant. There was nothing to show any intention of the parties that the title to the goods should pass in the meantime. The case comes exactly within the rules of Abberger v. Marrin, 102 Mass. 70, 71, and the language of the court in that case applies here: "The facts do not show a sale completed in Massachusetts so as to pass the property. As between vendor and vendee, title to specific personal property passes by the contract of sale. But where the sale is of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained. The contract remains executory so long as anything remains to be done to identify them. Here there was no sale of specific goods, and there was no appropriation of particular property under the contract, until the defendants' return to Albany." Riddle v. Varnum, 20 Pick. 280.

These sales were made in New York; they do not appear to have been unlawful; and the plaintiff can recover the price thereof.

[2, 3] But the subject-matter of the contract for the Cliffdale whisky was the specific barrel which the plaintiff had sent to New Bedford. The contract was made by the plaintiff himself, and not by an agent whose authority might be contested. Nothing reniained to be done to this barrel but to forward it to the defendant. This was a completed sale, made in this state, and the property in that whisky passed at once to the defendant. Sales Act (St. 1908, c. 237) § 18, and section 19, rule 1. The sale was forbidden by our statutes, and no action can be maintained for the price. R. L. c. 100, § 1.

There is now as to this item no help for the plaintiff in such cases as Carstairs v. O'Donnell, 154 Mass. 357, 28 N. E. 271, and Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128. Apart from other difficulties, the report leaves it at least doubtful whether the barrel was not in New Bedford and not yet returned to New York when it was sold to the defendant. But even that is hardly material

[4] The defendant made payments to the plaintiff "on account generally." The plaintiff may not apply these payments to his illegal demand. Rohan v. Hanson, 11 Cush. 44; Haynes v. Nice, 100 Mass. 327, 329, 1 Am. Rep. 109; Warren v. Chapman, 105 Mass. 87. 89. There was no agreement here for such application, as there was in Richardson v. Woodbury, 12 Cush. 279, and Hubbell v. Flint, 15 Gray, 550. The law will apply these payments to the lawful demands.

According to the terms of the report, judgment must be entered for the plaintiff for $28.77, with interest from the date of the writ.

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Till terms are agreed on between the principals, a broker employed by one of them to make a sale is merely a messenger to carry the offers made one to the other, and when a trade has been made by acceptance of an offer, he can write out and sign the bought and sold notes, stating the terms agreed on, necessary to satisfy the statute of frauds, and as broker nothing further can be within his apparent authority, so that, a trade being by word of mouth, he cannot, without express authority, outside his authority as broker, make and sign a written contract, that being a thing different from a memorandum.

Cent. Dig. § 136; Dec. Dig. § 94.*] [Ed. Note.-For other cases, see Brokers,

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action by Henry L. Hobart and others against George Lubarsky and others. Ver

dict for plaintiffs, and defendants bring ex- copy of the rough memorandum is to be ceptions. Exceptions sustained.

Defendants' first, tenth, and eleventh requested instructions are as follows:

"1. Upon the whole evidence in the case, the plaintiffs cannot recover and verdict must be for the defendants."

"10. In order to justify a verdict for the plaintiffs in this action, the jury must find that the defendants gave to Naisawald & Son direct authority to make the alleged contract upon which the plaintiffs rely in the form in which it is submitted to the jury. "11. If the jury believe from the evidence that Naisawald & Son made any other or different contract from that which they were authorized to do by the defendants, the plaintiffs cannot recover."

Lee M. Friedman and Friedman & Atherton, all of Boston, for plaintiffs. Arthur H. Russell and Edward M. Moore, both of Boston, for defendants.

LORING, J. There was a mistrial in this cause. The case was in substance as follows:

Naisawald & Son of New York were

molasses brokers and the defendants Kaplan and Lubarsky dealt in molasses under the firm name of the Sugar Products Company. There was evidence that in April, 1909, Kaplan, in behalf of the Sugar Products Company, employed Naisawald to find a purchaser for some 6,000 barrels of Porto Rico molasses, "known by the sample of 'Blue M grade,' of which he gave Naisawald a sample. Pursuant to this Naisawald brought the molasses to the plaintiffs' attention and they finally offered to buy it for 10% cents a gallon provided the Sugar Products Company would procure a responsible person to guarantee fulfillment of the contract. Upon this being reported by Naisawald to the defendant Kaplan the two went to the office of one Bernstein, where the terms of the proposed sale to the plaintiffs were discussed by Naisawald, Kaplan and Bernstein. After the terms had been settled Naisawald wrote out in pencil a rough memorandum of them and read it to Kaplan and Bernstein, and on their agreeing to terms there stated he went to the telephone and read the memorandum to Christianson (one of the plaintiffs), who (he testified) assented to it. There also was evidence that the plaintiffs accepted Bernstein as a satisfactory guarantor. It appeared from the testimony both of Naisawald and of Christianson (witnesses for the plaintiffs) that Naisawald came to the office of the plaintiffs after the interview with Bernstein which has just been stated, and that Christianson then called Naisawald's attention to the fact that by the terms of the bid which he originally made the cargoes were to be "sail cargoes." In consequence of that Christianson inserted in the rough memorandum in purple pencil the words "sail cargo." He

found in the margin.1 Later in the day he wrote out in duplicate a more formal sales

note which followed the substance of the

rough memorandum thus altered (a copy of which is also to be found in the margin).2 The next morning Naisawald presented the duplicate sales notes to Bernstein and he signed them as guarantor. On their being presented to the plaintiffs they wrote across the face: "Approved, Henry L. Hobart & Co." Later, on the same day, Naisawald presented the two duplicate original sales notes to Kaplan, who refused to sign them on the ground that he never agreed to sell by the sample Blue M. Subsequently the defendants proposed that a barrel should be shipped and submitted to the plaintiffs as

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Telephone, John 631.

Sold for a/c Sugar Products Co., New York City, N. Y. to H. L. Hobart & Co., New York City, N. Y. About 6,000 barrels of Porto Rico Molasses, as per sample marked and known as (5) days after goods have been landed, acceptBlue M., at 10%c per gallon, Net Cash, Five ed, gauged and coopered. Buyer's option of four Ports, New York, Philadelphia, Baltimore tination. To be shipped by sail cargo. or Boston, giving sellers ample time as to des

To be in good cooperage, Molasses or Syrup or Glucose Iron Bound large barrels, gauging 50 to 60 gallons. Shipments 2500 barrels in June

3500 barrels August-September. but this later quantity subject to confirmation by cable from Porto Rico not later than about Monday May 3rd.

Buyers agreeing to advance 35% against Bill of Lading and Insurance Certificates as cargoes are completed.,-B. Bernstein endorsing the same:-also being a party as endorser to this contract.

[Signed] L. C. Naisawald & Son.

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