Morrell, provides for three contingencies, namely (1) the acquisition of the bonds and allied stocks by the defendants before foreclosure; (2) the defendants becoming the purchasers at "said" foreclosure sale; and (3) a covenant to bid $100,000 "at the said foreclosure sale."

The rest of the fourth article is in these words: "If, however, all of the said two hundred and fifty thousand dollars ($250,000) of bonds and stocks of allied companies should not be acquired by the parties of the second part before the said foreclosure sale and said sale takes place and at the said sale the property is purchased by the parties of the second part, or in their interest, the necessary costs and expenses as aforesaid shall be first deducted out of the aforesaid sum of ten thousand dollars ($10,000) and the balance thereof, less the costs and expenses as above provided, shall be paid over to the said Tennis or to his attorney. This will leave in the hands of the said parties of the second part, out of the aforesaid agreed price of one hundred and ten thousand dollars ($110,000) a sum equal to forty per cent. (40 per cent.) of the par value of the bonds not acquired by the parties of the second part, which said sum shall be used to pay the pro rata shares of the purchase price at said sale to which the holders of the outstanding bonds may be entitled. If at the said foreclosure sale the property is purchased by the parties of the second part or in their interest, at a figure which will yield less than forty (40) cents on the dollar to the outstanding bonds, and a part of the agreed price of one hundred and ten ($110,000) is thereby saved, the amount of said saving shall be equally divided between the parties of the second part and the said Tennis excepting only the saving on the twelve thousand dollars ($12,000) of bonds which appear to have been lost. The total amount of saving on the said twelve thousand dollars ($12,000) of bonds shall be paid over to the said Tennis. At the said foreclosure sale the parties of the second part agree to buy in the property at the smallest price possible, and further agree that they will not allow any other bidder to buy in the same at less than one hundred thousand dollars (100,000)."

The fifth article is as follows: "All options, understandings and agreements between the parties hereto, so far as they conflict herewith, are of no further force and effect."

We now come to the construction of this written contract and particularly of the fourth paragraph. That paragraph after providing that $110.000 shall be the agreed price for all outstanding bonds "and the stocks of the allied companies held" with the 78 N.E.-8

The plaintiff's argument is in substance that although the defendants have not in terms so agreed, they are to be held as matter of construction to have covenanted that one of these three contingencies should take place.

Their first argument in support of this ccntention is that the $110,000 was to pay for the securities named (all the bonds and the capital stock of all four companies) or what is the same thing the property which the defendants could get by foreclosing the mortgage. The facts dispose of that argument. The foreclosure would not have given the property or property rights which the stock of the turnpike company, the stock of steam railroad company, and the stock of the horse railway company would have given. A foreclcsure of the mortgage would not have given a purchaser the power of dealing with the "gap" which ownership in the stock of the steam railroad gave. Apparently it would not have given any right of way at any point; for Tennis testified that "the Philadelphia & Bristol Passenger Railway Company simply had a contract" with the turnpike company; "that the Philadelphia & Bristol Passenger Railway Company only had the right of way to build from the turnpike company, and never made any claim to include that in its mortgage." Lastly, not only would it not give the right to operate the 34 miles north of the gap which the horse railway had, but apparently it was a question whether the foreclosure would give to the purchaser any right to these 34 miles of track. Fell, who bought Mr. Morrell's holdings, testified "that no property described in that mortgage is located on that part of the right of way between a point three-quarters of a mile north of Neshaminy creek in [and] Bristol." Neshaminy creek was the beginning of the "gap." There evidently has been a mistake in transcribing this testimony. But Tennis' attorney wrote to the defendant Shaw on November 5, 1900: "You have had an independent opinion from Messrs. Alexander and Magill advising you that the mortgage is a valid lien upon the Bristol end of the line and I feel quite sure that this is the case, although it may take some litigation before the question is finally determined." We assume that this refers to the matter testified to by Fell, and that the word "in" was a misprint for "and."

The plaintiff's next argument is (1) that the parties were to share in any saving on the price of 40 cents on a dollar for the bonds, if there was a saving on that price by the defendants getting the property at "said"

foreclosure; and (2) that if the defendants' construction had been the intention of the parties to the contract of August 13, they would have restricted the clause as to bidding $100,000 on foreclosure to "a sale held in their interest" in place of "at said foreclosure sale."

Dealing first with the argument based on the terms of the agreement as to Tennis and the defendants sharing equally in the saving (if there turned out to be a saving) in the price of 40 cents on the dollar for the bonds by foreclosing the mortgage: The first paragraph of article four had made it plain that the $110,000 was the "agreed price" not of the bonds alone but of the 250 bonds "and the stocks of allied companies held with the eighty-four thousand dollars ($84,000) of said bonds which were recently owned and held by Edward Morrell." And in the second paragraph of article four (providing for sharing in a similar saving on the price of 40 cents on the dollar for the bonds, if they were all of them bought and some of them directly from the holders in place of being deposited under the agreement), the provision is "at less than forty (40) cents on the dollar for the said bonds including with the aforesaid eighty-four thousand dollars ($84,000) of Morrell bonds the stocks of the allied companies." By a foreclosure the defendants would not get these allied stocks. It seems to have been assumed that unless they got the allied stocks the defendants would not foreclose; in other words to have been assumed that the Morrell bonds were not to be wiped out by the foreclosure; there was to be no foreclosure unless the Morrell bonds and allied stocks were bought; and the saving made by a foreclosure on the price of 40 cents on the dollar for bonds could not apply to the Morrell bonds. It is for these reasons (in our opinion) that the contract in this connection was put in the words in which we find it.

The words "at said foreclosure sale" relied on by the plaintiff in his argument are not altogether explicit, but it is hard to see what the word "said" refers to unless it be to a fcreclosure sale under the third article, that, is, a foreclosure sale instituted by the deferdants. On the other hand it is hard to interpret "at the said foreclosure sale" to mean "at any foreclosure sale," and that is what the plaintiff in effect asks us to do.

The plaintiff's next argument is that although it is conceivable that Tennis might have parted with the control which a majority of the bonds gave him, it would have been a foolish contract for him to make, unless the defendants bound themselves to proceed to the foreclosure or buy in the allied stocks; for unless they did come under such an obligation they were at liberty to sell at a profit, as they did, leaving the plaintiff to whistle for his $10,000 and the "other pay. ments for which he stipulated."

Whether it was a foolish contract for Ten

nis to sell his 126 bonds for 40 cents on the dollar without procuring an obligation from the defendants to do one of three things. namely, (1) buy in the outstanding bonds and allied stocks, or (2) foreclose the mortgage, or (3) bid $100,000 if some one else foreclosed it, we have no means of knowing beyond reading the contract which the parties signed in the light of the circumstances under which it was made. We find no words putting on the defendants an obligation to do one of these things unless it be in case of the third of the three alternatives. If we construe "at the said foreclosure sale" to mean "at any foreclosure sale," there was an obligation on the defendant to bid at the foreclosure sale which took place. But even then there is nothing which can be construed to impose on the defendants the two other alternatives.

It is hard to see why the third article should have stated that the mortgage "may be foreclosed when the parties of the second part may elect" if it was intended that by executing the contract the parties of the second part should come under an obligation to the plaintiff to foreclose it or to bid if some one else foreclosed it. And so of the insertion of the words "and said sale takes place," in the beginning of the last paragraph of the fourth article, namely, "If, however, all of the said two hundred and fifty thousand dollars ($250,000) of bonds and stocks of allied companies should not be acquired by the parties of the second part before the said foreclosure sale and said sale takes place and at the said sale the property is purchased by the parties of the second part, or in their interest."

On the contrary the language of the contract throughout is not only consistent but it recognizes that the foreclosure of the mortgage at the instance of the defendants is not compulsory.

Reading the contract in the light of the circumstances under which it was made we are of opinion that it must be construed to be a sale of the 126 bonds for 40 cents on the dollar, with no obligation on the part of the defendant to buy the rest of the bonds and the allied stocks, but an agreement to share with Tennis any saving on the agreed price if they were acquired for less, with no agreement to foreclose the mortgage and to pay Tennis $10,000 on foreclosure, but an agreement that if they instituted a foreclosure under the third article and became the purpurchasers they would pay Tennis $10,000 less foreclosure expenses, and share with Tennis any saving on the price of 40 cents on the dollar for bonds under the foreclosure sale; and finally, with the agreement to bid at a foreclosure which the defendants instituted under the third article of the contract. It is evident that the purpose of the defendants in thus restricting their obligation as to these matters was because unless they acquired the stocks held by Morrell they had no

intention of foreclosing the mortgage; since in that event a foreclosure of the mortgage would not give them the right of way, which was what they wished to secure. The only conclusion to which we can come is that the defendants were willing to buy the bonds for 40 cents on the dollar and take the risk of that purchase. Beyond that they were not willing to bind themselves, but were willing, in case they decided to use the control given them by the bonds, to make the further payment of $10,000 less foreclosure expenses to share in the savings, if any, on the agreed price, and to secure to the plaintiff what would be secured to him by having the property bid in for at least $100,000.

It is perhaps worth while to add that it seems at least improbable that the defendants would agree to pay $110,000 for the bonds and allied stocks and assume the burden of an obligation to get in the allied stocks when the plaintiff had just given up as hopeless his contract to deliver to J. F. Shaw, one of

to a brother, to share with him was void for want of consideration.

3. TRUSTS-ENFORCEMENT-JURISDICTION.

Where a mother devised her property to one son, if oral evidence could be employed to show that a share was intended for another son, his remedy against the devisee was in equity, and not at law.

Exceptions from Superior Court, Worcester County; Edward P. Pierce, Judge.

Action by Oscar F. Chase against Jennie S. Chase. Judgment in favor of defendant, and plaintiff brings exceptions. Exceptions overruled.

E. H. Vaughan, for plaintiff. Chas. Haggerty and Jerry R. Kane, for defendant.

LATHROP, J. We are of opinion in this case that an action at law cannot be maintained on an account stated. An account stated must be founded on previous transac tions of a monetary character creating the relation of debtor and creditor. Lubbuck v.

000.

This brings us to the plaintiff's contention that the jury were warranted in finding that the defendants orally agreed to buy the bonds and allied stocks or foreclose the mortgage in consideration of Tennis' executing the written contract.

When this was first testified to by Mr. Clark, who acted as Tennis' counsel in the matter, it appeared as if a promise to that effect was made comtemporaneously with the execution of the written contract. But Mr. Clark in his cross-examination testified that the oral promise was not made when the contract of August 13 was executed, and that that part of the agreement was changed; and "for that part was substituted the parts relating to the foreclosure of the mortgage as contained in" the contract here sued on. This testimony therefore was testimony to negotiations which were later merged in the writing which was agreed to as the contract of the parties.

In our opinion the presiding judge was right in directing the jury to return a verdict for the defendants.

Exceptions overruled.

1 Pa. 415. It cannot be made the instrument to create a liability where none before existed, but only determines the amount of a debt where liability exists. Austin v. Wilson, 33 N. Y. St. Rep. 503, 11 N. Y. Supp. 565.

On the facts found by the auditor, there was no legal liability existing on the part of the defendant's testator towards the plaintiff, on May 31, 1895, after the death of the mother; and the alleged promise of the defendant's testator to share equally with the plaintiff the proceeds of the mother's estate was without consideration and void.

If the property left by the will of the mother to the defendant's testator absolutely can be shown by oral evidence to have been intended one half for the plaintiff, his remedy is in equity and not at law. Oliffe v. Wells, 130 Mass. 222. Dowd v. Tucker, 41 Conn. 197; Hooker v. Axford, 33 Mich. 453; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245. Exceptions overruled.

(191 Mass. 556)

CHASE v. CHASE.

(Supreme Judicial Court of Massachusetts. Worcester. May 16, 1906.)

1. ACCOUNT STATED-NATURE AND ESSENTIALS.

An account stated must be founded on previous transactions of a monetary character creating the relation of debtor and creditor, and cannot be made the instrument to create a liability where none before existed, but only determine the amount of a debt.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Account Stated, § 13.] 2. CONTRACTS-CONSIDERATION.

Where a mother devised all her property to one son, his promise, after testatrix' death

(191 Mass. 479)

BAMFORD v. G. H. HAMMOND CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT APPLIANCES.

That a hatchway in a vessel was uncovered did not constitute a defect in the ways, works, and machinery of an employer engaged in loading the vessel with meat, so as to render it liable to an employé who fell into the hatchway, under Rev. Laws, c. 106, § 71, cl. 1, giving employés the right to recover for injuries caused by defects in the ways, works, and machinery owned by the employer.

2. SAME- NEGLIGENCE OF EMPLOYER-EVIDENCE.

Where plaintiff was employed by defendant to assist in loading a vessel with meat, and was injured by falling into a hatchway, while stepping backward to avoid a run which swung while being hoisted and pressed against him,

but did not hit him, this was insufficient to show negligence on the part of the employer. 3. SAME-WARNING EMPLOYÉ.

Where an employé had been engaged for a long time in aiding the employer in loading a vessel with meat, the employer was not bound to warn him of the danger of stepping into a hatchway uncovered to enable other employés to use it.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 308, 309.]

Report from Superior Court, Suffolk County; Jas. B. Richardson, Judge.

Action by one Bamford against the G. H. Hammond Company. Verdict for defendant, and case reported to the Supreme Judicial Court. Judgment on the verdict.

H. P. Brown, for plaintiff. Dickson & Knowles and Wm. B. Sprout, for defendant.

LATHROP, J. This is an action of tort for personal injuries sustained by the plaintiff while in the defendant's employ. The declaration contains three counts. The first and second are under Rev. Laws, c. 106, § 71. cls. 1, 2, respectively, and the third is at common law. At the close of the evidence for the plaintiff, the judge directed a verdict for the defendant, and by the agreement of counsel if upon the evidence the jury would have been warranted in finding a verdict for the plaintiff on any count, judgment was to be entered for the plaintiff in the sum of $1,500, and costs; otherwise, judgment was to be entered on the verdict for the defendant.

The bill of exceptions is a long one, but the facts as shown by the evidence may be stated briefly. The defendant is a corporation engaged in the shipping of beef and other meats. Before and at the time of the injury, which happened on December 2, 1902, about half past six in the afternoon, it shipped one or two ship loads of beef a week. The plaintiff had been in the employ of the defendant about 18 months with a gang of about 38 men. Most of his work was on the dock in carrying meat to vessels two nights in the week. He had worked for 7 or 8 years before that in packing away beef on vessels. His evidence shows that he was a man of experience and knew all about the business. The accident was caused by his falling down an open space in the ladder hatchway on board the steamship Armenian, while stepping backward to avoid a run which swung while being hoisted, and, as he testified, pressed against him but did not hit him.

The plaintiff was ordered to go aboard the vessel by one Waterhouse, who had charge of the men on the dock, while one Bruce had charge of the men on the vessel. The order to the plaintiff was "to go ahead up and help get the runs in." When he got on the deck of the vessel he stepped up on to the covered part of the hatchway. He noticed that one-half of the other side of the hatchway was uncovered, but did not notice that the ladder hatch was open. He noticed

that the men were putting a chain around the run to hoist it to get it out of the way. Then the order was given to the man at the winch to hoist and the run came up and swung as above mentioned.

The hatch was about 15 feet long, and about 12 to 13 feet wide. There was a beam which ran across amidships in the center, which was the main beam. There were also two small beams, one of which ran from aft to the center beam and the other from the center beam to the fore part of the hatch. Planks about 4 or 42 feet long, 2 feet wide, and 3 inches thick were used to cover the hatch. The coaming of the hatch was 12 to 16 inches above the deck.

Two of the plaintiff's fellow servants had taken off one of the planks so that they could go below by the ladder, and had not replaced it, as one of the men who was to go below was still on deck. It was down this hatch that the plaintiff fell.

We assume for the purposes of the case that there was evidence that the plaintiff was in the exercise of due care, though no explanation is offered as to the reason he was on the hatch instead of being on the deck where the rest of the men were, and where the evidence shows there was plenty of room.

The plaintiff cannot recover on the first count, for there was no evidence of any defect in the ways, works and machinery. Nor did the ways, works and machinery belong to the defendant, but all belonged to the steamship. Hyde v. Booth, 188 Mass. 290, 74 N. E. 337.

If

Nor do we see any negligence on the part of the superintendent. There was nothing to show that the chain was fastened about the skid in any manner but the usual one, or that it was hoisted in an unusual way. the man at the winch hoisted it too quickly, that was the negligence of a fellow servant of the plaintiff. It appears that the usual order to hoist was given, preceded by a warning from Bruce for the men to get out of the way. The order to hoist can be interpreted only as an order to hoist in a proper way. Gouin v. Wampanoag Mills, 172 Mass. 222, 51 N. E. 1078; Desautels Cloutier, 189 Mass. 349, 75 N. E. 703. If it was the duty of the men to guide the skid as it arose, and they neglected to do it, that was the fault of the fellow workmen of the plaintiff. No one can read the evidence without being satisfied that there was nothing unusual on the steamship that night except the fact that the plaintiff chose to get up on the hatch.

While in a sense the place where the plaintiff was put to work was a dangerous place, yet to a man of his experience, there was no necessity of giving any warning. He knew all that any one could have told him to look out for. He knew that beef was to be put into the hold and that some of the men would have to go there to pack away the beef, and

GENCE OF DECEASED-Burden of Proof. In an action against a street railway for the death of a pedestrian struck by a car while deceased was walking along the track, the burden was on plaintiff to prove that deceased was in the exercise of due care.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Death, § 78.]

2. STREET RAILROADS - INJURIES TO PEDESTRIANS-CONTRIBUTORY NEGLIGENCE-DANGEROUS PLACE.

Where deceased was killed by being struck by a street car while he was walking on the track, the fact that the walking was better there than in the highway was no excuse for his assuming such dangerous place, when he could have walked on the highway with safety. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 206.] 3. SAME-DEFECTIVE HEARING.

Where deceased, at the time he was killed while walking on defendant's street car track, was 78 years of age and very deaf, his want of hearing made it incumbent on him to be more alert in the use of his other senses.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 217.]

4. SAME EVIDENCE.

Deceased, a man of 78 years of age and very deaf, was killed by being struck by a street car running 8 or 10 miles per hour on a wet track while deceased was walking along the track. He was first seen walking beside the track some 500 feet away from the car, and soon after he was seen walking between the rails, which he continued to do until he was struck. The motorman sounded the gong, and one of the witnesses testified that it seemed to him that the motorman was doing everything possible to bring the car to a standstill. During the time deceased was visible he did not once look around to see whether a car was coming. Held, that deceased was guilty of contributory negligence as a matter of law.

Exceptions from Superior Court, Middlesex County; Chas. U. Bell, Judge.

Actions by one Adams, as executrix of the will of Otis Adams, deceased, against the Boston & Northern Street Railway Company. A verdict was directed in favor of defendant in each case, and plaintiff brings exceptions. Overruled.

John J. Harvey, for plaintiff. Richardson, Trull & Wier, for defendant.

LATHROP, J. These are two actions of tort, brought by the plaintiff as executrix of the will of Otis Adams. The first action is brought, under Rev. Laws, c. 111, § 267, for the death of her testate, in consequence of his being struck by an electric car run by the

defendant. The second action is for conscious suffering. At the trial in the superior court, at the close of the plaintiff's evidence, the judge, at the request of the defendant, directed the jury to return a verdict for the defendant in each case; and the cases are before us on the plaintiff's exceptions.

It was incumbent on the plaintiff in each case to prove that her testate was in the exercise of due care. The accident happened in the town of Chelmsford on March 10, 1904, about 5 o'clock in the afternoon. The testate was 78 years of age, and was very deaf. When first seen by one of the witnesses he was walking by the side of the track. This witness testified that soon after he saw him walking between the rails of the track, and all the witnesses testified that he continued so walking until struck.

According to the testimony of some of the witnesses the car was 500 feet away when they first saw the testate. They all heard the gong sounded; and one of them testified that "it seemed to him that the motorman was doing everything possible to bring the car to a standstill." It appears that the road was slushy and the rails wet. The car was going at the rate of 8 or 10 miles an hour.

The only excuse offered for the testate's walking between the rails is that the walking was better there than on the highway. It does not appear whether there was any sidewalk on the street or not.

Where the testate was walking was a dangerous place, where no man of ordinary prudence would walk. Dooley v. Greenfield & Turner's Falls St. Ry., 184 Mass. 204, 68 N. E. 203. The fact that the walking was better there than in the highway was no excuse. "His want of hearing made it incumbent upon him to be more alert in the use of his other senses." Hall v. West End St. Ry., 168 Mass. 461, 47 N. E. 124. The evidence in the case is that he did not once look around to see whether a car was coming.

On the evidence in the case we are of opinion that the testate was not in the exercise of due care; and that the ruling was right. This renders it unnecessary to consider whether there was any evidence of negligence on the part of the defendant. Exceptions overruled.