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that he had a special property in the chattels on May 23d, when the action of replevin was brought. His failure to introduce evi. dence that he did anything to maintain pog. session, custody or control of the property, from the time of the seizure, or at least from the time of the first adjournment of the sale, is fatal to his claim.
It becomes unnecessary to consider what effect, if any, his failure to sell the property under the execution, and his return of the execution unsatisfied, would have upon his rights, if his case were established in other particulars.
Mass, 343; Lewis V. Buttrick, 102 Mass. 412, 414; Barry v. O'Brien, 103 Mass. 520. Dicta, that mere prior possession without legal right is enough, are not supported by the decisions in this commonwealth. The plaintiff concedes that he has never had the general property in the articles, but he claims a special property in them by virtue of a levy on the execution. He testified that he went to the defendant's residence and there seized the chattels upon the execution, and he introduced his official return, which recited the making of ide seizure, and that he kept the property safely for four days prior to the proposed sale. The seizure was on the fourth day of April, and the return states that on April 6th he received a notice from the defendant, which is there set out in full, containing a claim of the property under a bill of sale, and forbidding the plaintiff to enter upon his premises or to interfere with the property in any way. The return states that thereupon the plaintiff adjourned the sale from April 9th to April 16th, from April 16th to April 23d, from April 23d to April 30th, from April 30th to May 7th, from May 7th to May 14th, from May 14th to May 21st, and from May 21st to May 25th, on which last day, the execution having expired, he returned it in no part satisfied. The return also states that the goods and chattels referred to in the notice of the defendant were replevied by the plaintiff, by virtue of a writ bearing date May 23d, which is the writ in the present case.
The evidence of a seizure is enough to warrant a finding that the plaintiff acquired a special property in the chattels, but all the evidence tends to show that, after that, they were allowed to remain on the defendant's premises until they were taken under the writ of replevin. More than six weeks elapsed after the seizure before the writ of replevin was issued, and there is no evidence that the plaintiff at any time did anything to maintain possession or preserve his special property. A fair inference from the testimony is that, during all this time the plaintiff made no attempt to retain custody of it, or to keep it under his control. It is well established law in Massachusetts that an officer who attaches chattels or takes them on execution cannot maintain his right, and retain his special property, without taking them into his possession and keeping them. Caldwell V. Eaton, 5 Mass. 399; Lane V. Jackson, 5 Mass. 157, 164; Eastman v. Eveleth, 4 Metc. 137, 146; Shephard v. Butterfield, 4 Cush. 425, 50 Am. Dec. 796; Sanderson v. Edwards, 16 Pick. 141; Carrington v. Smith, 8 Pick 419; Hemmenway v. Wheeler, 14 Pick. 408, 25 Am. Dec. 411; Bagley v. White, 4 Pick. 395, 16 Am. Dec. 353. Rev. Laws, c. 167, § 45, relative to the attachment of goods or property which cannot be easily removed by reason of its bulk, does not apply to the seizure of goods upon an execution.
The burden was on the plaintiff to show
(191 Mass. 491) MASSELL V. BOSTON ELEVATED RY.
CO. (Supreme Judicial Court of Massachusetts.
Suffolk. May 16, 1906.) 1. STREET RAILROADS — CARE AS TO TRESPASSERS.
A street railway company owes no duty to a trespasser on a car, except to refrain from willfully, wantonly, or recklessly exposing him to danger. 2. SAME NEGLIGENCE - EVIDENCE — ADMISSIBILITY.
A street railway company, 'sued for injuries received by a newsboy ordered from a car on which he was a trespasser by the motorman in charge thereof, is not bound by the acts of other conductors and motorien alllowing the boy to get on the cars, in the absence of proof that the company knew the fact and acquiesced in the violation of its rules.
Exceptions from Superior Court, Suffolk County; Wm. C. Wait, Judge.
Action by one Massell, by his next friend, against the Boston Elevated Railway Company. There was a verdict for defendant, and plaintiff excepts. Overruled.
This was an action in tort for personal injuries received by plaintiff, a newsboy, who was ordered from a car by the motorman in charge thereof. The boy was frightened, and fell from the car, and was injured.
Walter A. Webster and Stebbins, Storer & Burbank, for plaintiff. Ralph A. Stewart and Jos. F. Berry, for defendant.
LATHROP, J. 1. The plaintiff in this case was a trespasser upon a car of the defendant; and the defendant owed him no duty except to refrain from willfully, wantonly or recklessly exposing him to danger. Banks v. Highland Street Ry., 136 Mass. 485; Planz v. Boston & Albany R. R., 157 Mass. 377, 382, 32 N. E. 356, 17 L. R. A. 835; Leonard v. Boston & Albany R. R., 170 Mass. 318, 320, 49 N. E. 621; Mugford v. Boston & Maine R. R., 173 Mass. 10, 52 N. E. 1078; Bjornquist v. Boston & Albany R. R., 185 Mass. 130, 70 N. E. 53, 102 Am. St. Rep. 332; Albert V. Boston Elevated Ry. 185 Mass. 210,.70 N. E. 52.
While the language used by the motorman
was rough and the gestures threatening, fendant a bond given in January, 1896, by it is obvious that the plaintiff had no rea- Thomas F. Hill, as principal, to one Charles sonable ground to believe that the motorman H. Hanson. intended to assault him. The car was go- The plaintiffs' evidence tended to show ing at a low rate of speed and came to a that in the year 1895 one Thomas F. Hill and dead stop within five feet of the place where one Charles H. Hanson were partners in the plaintiff attempted to get off. The plain- Lowell as retail liquor dealers and innholdtiff had been a newsboy for a year and was ers; that in January, 1896, Hanson withdrew familiar with the streets of Boston. There from the business and Hill continued to conwas nothing in the motorman's words or in duct the same; that the defendant was so his gestures to intimidate an ordinary news- interested in the business to be conducted boy. The case is fully covered by the au- and which afterwards was conducted by Hill, thorities above cited.
that he, the defendant, was to furnish and 2. The evidence offered was rightly exclud- did furnish liquors and other articles to Hill ed, as immaterial and irrelevant. The de- at wholesale, under an agreement between fendant could not be bound by evidence that the defendant and Hill; that in connection other conductors and motormen had allowed with the withdrawal of Hanson from the the plaintiff to get upon their cars, in the business the bond above referred to was exabsence of evidence that the defendant or ecuted and delivered to Hanson; that beits officers knew the fact and acquiesced in fore the signing or execution thereof by the the violation of the rules. Thompson v. plaintiffs, the defendant requested them to Boston & Maine R. R., 153 Mass. 391, 26 sign and execute the same as sureties thereN. E. 1070.
in, and in consideration thereof orally agreed Exceptions overruled.
to save them harmless from all loss on account thereof; and that the plaintiffs signed
and executed such bond at the defendant's (191 Mass. 469)
request, relying upon the defendant's promHAWES et al. V. MURPHY.
ise. (Supreme Judicial Court of Massachusetts.
The plaintiffs offered in evidence the origMiddlesex. May 16, 1906.)
inal papers and the docket record in the 1. FRAUDS, STATUTE OF-PROMISE TO INDEN
action on the bond in question of Hanson NIFY. Under Statute of Frauds, Rev. Laws, c.
against Hill and the plaintiffs herein, 74, § 1, cl. 2, providing that nó action shall be brought in December, 1897, in which judg. brought to charge a person on a special promise
ment was entered for the plaintiff Hanson on to answer for the debt, default, or misdoings of another unless the promise or some memoran
December 3, 1900, for $1,015.57 and costs. dum or note thereof is in writing and signed On December 17, 1900, the plaintiffs paid by the party to be charged therewith, a ver- the amount of the judgment on the bond, bal promise by defendants to save plaintiffs
which with costs amounted to $1,119.96. harmless from all loss on account of a bond signed at defendants' request by plaintiffs as
There was also evidence that after the sureties is valid.
bringing of the suit of Hanson against Hill [Ed. Note. For cases in point, see vol. 23, and the plaintiffs, the plaintiffs notified the Cent. Dig. Frauds, Statute of, $ 32.]
defendant of the pendency of the suit, and 2. TRIAL - INSTRUCTIONS APPLICABILITY TO the defendant advised the plaintiffs what FACTS. Where, in an action to recover for loss
counsel to employ, but did not himself desustained by plaintiffs as sureties on a bond fend; and that in executing the bond the signed by them at defendant's request and in re- plaintiffs relied entirely upon the promise of liance on his oral promise to save them harm- the defendant, and not at all upon the responless on account thereof, the uncontradicted evidence showed that, in executing the bond, plain
sibility of Hill, the principal in the bond; that tiffs relied entirely upon defendant's promise Hill was a man of no property whatsoever, and not on the responsibility of the principal
except his interest in the liquor business. in the bond, a requested instruction that if plaintiffs signed the bond relying in part on the
The defendant's evidence tended to show responsibility of the principal therein and in that Hanson never, after the execution and part on the alleged oral promise of indemnity by delivery of the bond, except as above set defendant, defendant's alleged promise was col
forth, paid any debt or demand existing lateral, and within the statute of frauds and he was not liable thereon, was properly refused.
against the firm of Hanson & Hill mentioned
in the bond; that it was agreed by Hanson Exceptions from Superior Court, Middle
& Hill in December, 1895, to refer the adsex County; John H. Hardy, Judge.
justinent of their partnership accounts and Action by one Hawes and another against all matters connected therewith to the police one Murphy. Judgment for plaintiffs. Ex
board of Lowell, Mass., and to give that board ceptions by defendant. Exceptions overruled.
full power to adjust all matters and accounts Burke & Corbett, for plaintiffs. John W. existing between them as partners, and all McEvoy, for defendant.
accounts due from them as partners to third
persons, and that they agreed to accept such LATHROP, J. This is an action to recover adjustment as final and binding upon them; $1,119.96, with interest thereon, for money that the board did sit and pass upon the paid by the plaintiffs by reason of having same; that one of the matters considered by signed as sureties at the request of the de- ! the board was a bill of $1,750.99, due from Hanson & Hill to the defendant; that it tions were taken. The jury returned a verwas found by the board that there was due dict for the plaintiffs for the full amount to the firm of Charles H. Hanson & Co. claimed. (comprising Hanson and his brother, as equal The only questions of law argued by the partners), from the defendant the sum of defendant are to the refusal to give the in$1,582.72, for goods sold and delivered to the structions requested. defendant; that the board in partial settle- 1. The first instruction requested could not ment of the bill of $1,750.99 against Hanson have been given. The defendant's promise to & Hill, set off the bill of $1,582.72 due from the plaintiffs was not "a special promise the defendant Hanson and his brother, and to answer for the debt, default or misdoings ordered Hill to pay to the defendant the of another" within the statute of frauds balance, namely, $168.27; that the parties to (Rev. Laws C. 74, § 1, cl. 2), but was an the reference agreed to the finding of the original promise to save the sureties harmboard, which finding was to be a final settle- less from all loss on account of their signment between the parties; that this finding ing as sureties, if the jury believed the testiwas made about the time the bond was given, mony of the plaintiffs. This question was and that by reason of the finding there was submitted to the jury with appropriate indue from Hanson & Hill to the defendant structions. Colt v. Root, 17 Mass. 229; Weld the sum of $168.27 only (the balance afore- v. Nichols, 17 Pick. 538; Chapin v. Lapham, said) which amount Hill soon afterwards 20 Pick. 467; Preble v. Baldwin, 6 Cush. paid; and the defendant contended that no 549; Aldrich v. Ames, 9 Gray, 76; Perkins breach of the bond had been committed, V. Littlefield, 5 Allen, 370; Collins v. Pratt, and that the judgment in the action on the 181 Mass. 345, 347, 63 N. E. 946. bond was therefore erroneous.
2. There was no evidence in the case to It further appeared that the bond was serve as a foundation for the second me made January 13, 1896; that the money ad- quest. The evidence for the plaintiffs is vanced by the defendant for the payment of that in executing the bond the plaintiffs the indebtedness of Hanson & Hill was ad- relied entirely upon the promise of the devanced some time in February, 1896, and fendant, and not at all upon the respo sithat some of the creditors of Hanson & Hill bility of Hill; that Hill was a man of no were paid in February, 1896.
property whatsoever, except his interest in It appeared that Hanson and his brother the liquor business. There was no evidence brought suit on June 3, 1896, against the to contradict this. defendant to recover the sum of $1,582.72, Other questions which arose at the trial and that in November, 1897, judgment in are disposed of by the verdict. that suit was entered, by agreement of the Exceptions overruled. parties, in favor of the defendant, whose answer in the suit was that the alleged claim had been paid by set-off in the manner above
(191 Mass. 533) stated.
HAYDEN V. JAMES F. SHAW & CO. There was no evidence that the plaintiffs ever made any effort to collect from the
(Supreme Judicial Court of Massachusetts.
Suffolk. May 16, 1906.) principal in the bond in question the amount paid by them thereon, or that any demand
Plaintiff's assignor, who owned a majority therefor was ever made on the principal.
of the bonds of a street railway constructed The defendant requested the judge to rule on a turnpike under a contract, which right of as follows:
way was not included in the mortgage securing "(1) That the execution of the bond in the bonds, contracted to sell to defendants 126
of the bonds at 40 cents on the dollar, toquestion by Hill as principal, and the plain
gether with others up to the amount of 154 at tiffs as sureties, made Hill primarily liable the same price. The contract provided that to the sureties for any damage they might sus
bonds up to $150,000 might be deposited under
the agreement before a foreclosure sale "heretain by reason of signing of the bond; and
inafter mentioned,” excluding bonds recently this defendant's alleged promise of indem- held by M. Article 4 declared that $110,000 nity, if made, was merely collateral and so should be paid for all the outstanding bonds within the statute of frauds, and this defend
and stocks of the allied companies, including
the street railway, turnpike, and a railroad comant is not liable thereon.
pany, and provided for certain payments to “(2) If the plaintiff signed the bond in plaintiff's assignor in the event defendants acquestion relying in part upon the responsi- quired the bonds and allied stocks before fore
closure, or in case defendants became purchasers bility of Hill, the principal in the bond, and
"at said foreclosure sale,” and contained a in part on the alleged oral promise of in
covenant binding defendants to bid $100,000 "at demnity by the defendant, the defendant's such foreclosure sale.” It was impossible for alleged promise, if he made it, was collateral defendants to acquire all the bonds specified,
whereupon, after notice, defendants sold their and within the statute of frauds, and defend
bonds and the mortgage was foreclosed by ant is not liable thereon."
others. Held, that defendants were not bound The judge refused to give these instruc- to purchase all the bonds and stocks of the tions.
allied companies at all events, nor to bid $100,
000 at a foreclosure sale, except one conducted The case was submitted to the jury under by them, and that they were therefore not liaappropriate instructions, to which no excep- ble for breach of contract.
2. SAME-MODIFICATION OF CONTRACT-ORAL bonds of one Morrell, whose holdings and reAGREEMENT-MERGER.
lations to the matter are hereinafter set forth Where, after the execution of a written
in full) sold his 227 bonds to J. L, Blackwell contract for the sale of street railway bonds, etc., it was orally agreed that defendants should & Co., at whose instance the mortgage was buy the bonds and allied stocks of certain cor- foreclosed on September 10, 1901, and by porations, and foreclose the mortgage securing the bonds in consideration of the execution of
whom the mortgaged property was bid in for the written contract, whereupon the written
$1,000. contract was changed, such oral agreement be- One of the elements of damage claimed came merged in the written contract.
by the plaintiff was the loss on 10 bonds be[Ed. Note.-For cases in point, see vol. 11, longing to him (which were mislaid or lost), Cent. Dig. Contracts, $$ 1129, 1130.]
on which he got his proportion of $1,000, the Exceptions from Supreme Judicial Court, actual proceeds of the foreclosure sale, in Suffolk County; James M. Barker, Judge. place of his proportion of $100,000 which
Action by one Hayden against James F. it is his claim should have been the proShaw & Co. A verdict was directed in fa- ceeds of the foreclosure sale. vor of defendants, and plaintiff brings ex- The plaintiff also claims that the defendceptions. Overruled.
ants made a profit when they sold the bonds C. F. Choate, Jr., Fredk. H. Nash, and
to Fell. This the defendants deny, and exBurrage & Hayden, for plaintiff. Guy W. Cox
plain that they were sold with other property and Frank S. Katzenbach, Jr., for defendants.
for a lump sum, and the profit was made on
the other property. LORING, J. This is an action brought
The defendants claim that the only obliby the plaintiff as assignee of one Tennis
gation which they took upon themselves by for the breach of a contract between Tennis
executing the written contract was to buy for and the defendants James F. Shaw & Co.
40 cents on the dollar the 126 bonds and all (a firm engaged in promoting and build
other bonds which should be deposited under ing street railways), and E. H. Gay & Co.
the contract, and that they did so; and that (bankers, dealing in street railway securities).
having bought them they could do with them In August, 1900, Tennis was the owner
as they pleased; and further, as to the alof 126 (being a majority of the total issue
leged oral agreement, that the conversation of 250) mortgage bonds of the Philadelphia &
testified to was a part of the negotiations Bristol Passenger Railway Company, subject
which led up to the written contract here to certain debts for which they were pledged.
sued on. By a written agreement dated August 13,
The defendants testified that they did not 1900, Tennis agreed to sell and the defend
sell the bonds to Fell until they were told by ants agreed to buy these 126 bonds for 40
Mr. Tennis' counsel that they "could not
get any more bonds and * cents on the dollar, and any further bonds
could that might be deposited, up to 154 bonds.
not get the allied stocks. This was not The plaintiff's claim is (first) that by the
contradicted. true construction of this written contract In their arguments as to the true constructhe defendants were bound to buy the other
tion of the written contracts of August 13, outstanding bonds and certain stocks herein
1900, both the plaintiff and the defendants after referred to, or to foreclose the mort
have appealed to the circumstances under gage, or to bid $100,000 when the mortgage
which it was made. Before stating the terms was foreclosed, and also when the mortgage
of the contract, we shall state these circumwas foreclosed to pay Tennis $10,000 or
stances. $10,000 less foreclosure expenses; and (sec
Prior to July, 1900, Tennis had underond) if this is not so, that by an oral agree- taken to build an electric street railway from ment made by the defendants in consideration the county line of Philadelphia to Bristol, of Tennis's entering into the written con
a distance of 11 miles. The name of the tract they were bound to buy in the out- railway was the Philadelphia & Bristol Passtanding bonds and the stocks already re- senger Railway, and for convenience we shall ferred to or foreclose the mortgage, and on speak of it as the railway. The amount of the defendants doing one or the other they the capital stock and of the issue of mortwere bound by the written contract to pay gage bonds was $250,000 each. The railway the plaintiff his $10,000, and to bid $100,000 was to be constructed on the road of a at the foreclosure sale.
turnpike company, which had by contract It is admitted that the defendants paid given the railway company a right to confor the 126 bonds, and in addition bought'struct its railway on its road. The capital 17 bonds which were deposited under the stock of the turnpike company was owned agreement in question, but did nothing fur- by one Morrell. Tennis had not been successther. They did not buy in the other bonds ful in building the railway. The permission nor the stocks nor foreclose the mortgage, granted by the turnpike company did not but sold their 143 bonds' in February, 1901, give him the right to build on the turnpike to one Johnson and the Lehigh Valley Trac- company's road if the abutters objected, and tion Company. It is admitted that Johnson there was what was spoken of at the arguand the traction company sold to one Fell, ment as “a gap” of three-quarters of a mile and that Fell (who previously had bought 84 where the abutters did object. To overcome
that difficulty Tennis had organized a steam northerly terminus of the Philadelphia & railroad, because a steam railroad had a Bristol Railway, the railway in question) right to condemn land while a street rail- south to Philadelphia, and had been unsucway had not. This "gap" was 7 miles north cessful in getting a right of way. from the Philadelphia county line, i. e. from Coming to the terms of the written conthe southern terminus of the railway. To tract of August 13, 1900: It contained five prevent a forfeiture of the 314 miles north articles. of the "gap," Tennis organized a horse rail- Article 1 refers to a tripartite agreement of way, which operated this portion of the even date between the same parties and the tracks under a lease from the railway com- Union Trust Company, whereby Tennis sells pany. The danger of a forfeiture of the and the defendants in the case at bar buy 344 miles north of the "gap" came from a 126 bonds of the railway company at 40 cents law requiring the operation of a street on the dollar, to be deposited with the trust railway to be continuous.
company under the agreement; and the deTennis had been unsuccessful financially also. fendants in the case at bar also agree to buy He had sold to Morrell 84, had pledged to at the same price any further bonds deposited creditors 126, had lost or mislaid 12, and thereunder up to 154 bonds. otherwise had parted with the remaining 28 Article 2 provides that bonds up to $150, of the 250 mortgage bonds of the railway. 000 may be deposited under the agreement He had sold to Morrell all the stock of the "before the foreclosure sale hereinafter menrailway in question and also all the stock of tioned," with a proviso that no part of the the steam railroad and the horse railway. 84 bonds "recently held" by Morrell "shall
Morrell had sold to Fell who was after- be deposited." wards the purchaser of the defendant's bonds The third article is as follows: "It is from Johnson and the traction company understood and agreed that the mortgage to whom the defendants sold them as we have securing the said bonds may be foreclosed already stated), all his holdings on July 6, when the parties of the second part may 1900, the month before the contract here sued
elect, the expense thereof to be paid out of on was made; and Fell was then operating the sum of ten thousand dollars hereinafter the railway for the 7 miles north of the mentioned, said foreclosure to be accomPhiladelphia county line and south of the plished by the exercise of the power of sale "gap” by electricity, and the horse railway contained in the said mortgage, or by a bill for the 314 miles north of the gap by horse in equity, or otherwise, as the parties of power. The mortgage' interest was four
the second part shall determine." years overdue, but the trustee of the mort
The fourth article begins with the stategage had not taken possession of the mort- ment that "the price to be paid by the pargaged property.
ties of the second part to the said Tennis One other circumstance should be stated, for all of the said two hundred and fifty thounamely, that in the May preceding the
sand dollars ($250,000) of bonds, with all unAugust in question Tennis had given to
paid coupons attached, and the stocks of one Myrick and one Shaw (a partner of the
the allied companies held with the eightyfirm of J. F. Shaw & Co., one of the two
four thousand dollars ($84,000) of the said defendant firms in the action now before
bonds which were recently owned and held us) a written agreement to sell and deliver
by Edward Morrell, is the sum of one hunto them on or before August 1, 1900, at their dred and ten thousand dollars ($110,000), option, the whole mortgage bond issue ($250,
that is, forty (40) cents on the dollar for the 000 in amount) of the railway, and all its
two hundred and fifty thousand dollars capital stock; also all the stock of the turn
($250,000) of bonds, making one hundred pike company, the steam railroad company
thousand dollars ($100,000) and an addiand of the horse railway company. The tional sum of ten thousand dollars ($10, price to be paid for all these securities was
10) to be reserved by the parties of the $115,000, $15,000 of which was to be paid
second part for the costs and expenses atin cash and the balance in mortgage bonds
tending the foreclosure of the mortgage, the of a new company not to exceed $20,000 a
balance of said sum of ten thousand dollars mile. Tennis not having secured Mr. Mor
($10,000) after deducting said costs and exrell's 84 bonds and his holdings of stock
penses to be paid over to the said Tennis." in the railway and in the other companies, se
By “the stocks of the allied companies” it cured from Myrick and Shaw, on June 28th,
is conceded was meant the stocks of the an extension of his contract to September
electric railway company, the turnpike com1st. The contract now in question was made
pany, the steam railroad company, and the after it was known that Morrell had sold
horse railway company. or had gone through the form of a sale of all
It is then provided in the fourth article his holdings which, as we have said, was
that if all the “$250,000 of bonds and the on or about July 6, 1900.
stocks of the allied companies” are acquired It appeared that the defendants in the
by the defendants in the case at bar "before action now before us were contemplating the foreclosure sale,” whether under the conbuilding a street railway from Trenton tract in question or by purchase directly (which is 10 miles north of Bristol, the from the owners, the defendants are to pay