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226 (Rev. Laws, c. 50, § 11), providing that, whenever the authorities empowered to locate, lay out, or construct streets in a city shall take land, they may make an agreement in writing with the owner that the city shall assume any betterments assessed on the remainder of the owner's lands, provided the owner shall release all claims for damages on account of the laying out of the street.
to give up valuable rights, like betterments assessable upon the laying out of a street. They are a board of public officers, acting judicially in matters relating to the laying out of streets. They have no authority to make any kind of executory contract to bind the city, except under this statute.
They may by their official action, followed
Exceptions from Superior Court, Suffolk by action of authorities of the city in the conCounty; David W. Bond, Judge.
Action on contract by one one Whitcomb against the city of Boston to recover a betterment assessment paid under protest for breach of covenants contained in a deed of release. Findings for plaintiff, and defendant excepts. Exceptions sustained.
Edward O. Cooke and Walter B. Grant, for plaintiff. Philip Nicholas, for defendant.
KNOWLTON, C. J. The question in this case is whether there was any evidence to warrant the finding for the plaintiff upon the second count of the declaration. This count is founded upon the alleged acceptance by the defendant of a deed from the plaintiff and others, containing a condition or an agreement that the city should assume any betterments assessed upon the plaintiff's land on account of the laying out and construction of a street referred to, and save the plaintiff harmless therefrom.
There was no evidence tending to show that this deed was accepted by the city. It purports to be a conveyance of land to the city in fee simple. The instrument was never taken by the officer who has the custody of valuable papers belonging to the city, and was never recorded. According to the uncontradicted testimony of Jenkins, the secretary of the board of street commissioners, it was put in a pigeon hole in which sucl papers that had not been acted under or accepted were kept together. The testimony was that, at the time when this paper was brought to the office of the street commissioners, it was not the practice of that board to act upon or accept such papers, although It had been their practice to accept them a year or two before, when this paper was dated. It bore date December 24, 1891, and was taken to the office of the street commissioners on January 10, 1893. There is no reference to it in any record of the street commissioners or of any board or department of the city. There was no evidence to warrant a finding that it was ever accepted by the city. The case is very different from Bartlett v. Boston, 182 Mass. 460, 65 N. E. 827, cited by the plaintiff.
It is not contended that this is an agreement in writing of the board of street commissioners, whereby the city is bound under St. 1884, p. 185, c. 226 (Rev. Laws, c. 50, § 11). See Bartlett v. Boston, ubi supra. Except under this statute, the board of street commissioners cannot bind the city by a contract
struction of a street, supply a consideration on the part of the city, so as to make binding a unilateral contract presented by a land owner as an offer by way of inducement to the laying out of a street. Bell v. Boston, 101 Mass. 506-510; Crocket v. Boston, 5 Cush. 182-188; Aspinwall v. City of Boston (Mass.) 78 N. E. 103. But these cases do not intimate that they can make an executory contract binding upon the city, or that they alone can make any contract that shall deprive the city of valuable rights. Exceptions sustained.
(192 Mass. 278)
ROBERTS v. WELSH (two cases).
(Supreme Judicial Court of Massachusetts. Middlesex. June 19, 1906.)
1. TAXATION-ASSESSMENT-TO WHOM MADE. One holding real estate under a tax deed, valid on its face and duly recorded, is a person appearing on the records as owner, within Rev. Laws c. 12, § 15 providing that taxes on real estate shall be assessed to the person appearing of record as owner.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 166.]
2. SAME-DESCRIPTION OF PROPERTY-SUFFI
A description of property in the valuation list for assessment is sufficient, where it fairly designates, for the information of those interested, the property intended to be taxed.
[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 711-735.] 3. SAME.
A disregard of the statutes as to classification of property in the assessment list is not fatal to the validity of the tax; the requirements being intended to furnish information for the public authorities in reference to the equalization of taxes among the cities and towns of the state.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 711-735.1 4. SAME.
Property described in a valuation list by a reference to the house by number, designation of the lot, and the statement of the number of square feet in it, is sufficiently described.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 720-735.]
5. SAME-TAX DEED-DESCRIPTION OF PROPERTY-SUFFICIENCY.
Where the measurement from the fixed point in each direction corresponds with the figures given in a tax deed describing the property, and the area stated therein corresponds with the directions and distances, the use of the word "about" before the figures giving the distances does not create any uncertainty in the description.
[Ed. Note.-For cases in point, see vol. 45 Cent. Dig. Taxation, §§ 720-735.]
Under Rev. Laws, c. 13, § 41 providing that, where taxes are not paid, the collector shall sell, the smallest undivided part of the land which will satisfy the taxes and charges, etc., a sale of a part of the lot by metes and bounds for the nonpayment of taxes is invalid.
Report from Superior Court, Middlesex County; Edgar J. Sherman, Judge.
Consolidated suits-two by one Roberts against one Welsh, and by one Young against one Parker. Cases reported from the superior court. Bills dismissed in the suits brought by Roberts against Welsh, and decree for plaintiff in suit by Young against Parker.
N. D. A. Clarke, for plaintiffs. Jos. Bennett and Wm. A. Parker, for defendants.
KNOWLTON, C. J. These are three bills in equity, each brought to remove a cloud from the plaintiff's title to certain real estate, caused by a deed from the collector of taxes held by the defendant. In each case the title of the plaintiff is admitted, except so far as it is affected by the sale for nonpayment of taxes under which the defendant claims. There were three separate sales, for the taxes of three different years, namely, 1900, 1901 and 1902. In the first suit the defendant claims under the sale of the nonpayment of the taxes of 1900, in the second, under the sale to collect the tax of 1901, and in the third under the sale to collect the tax for the next year. The only questions before us relate to the validity of the deeds made in pursuance of these three sales. In each case the deed is attacked on three grounds, and in each case the plaintiff contends, first, that the tax, on account of which the sale was made, was invalid because the property was assessed to the wrong person, secondly, that it was invalid because there was not a sufficient description of the property in the valuation list, and thirdly, that the description in the deed is incorrect and insufficient. In all other particulars it is conceded by the plaintiffs that the proceedings under which the defendants claim were regular.
1. Were the several assessments made to the right person? In each year the tax was assessed to Willard Welsh as owner. On the 1st day of May in each year he held a title to the property under two deeds previously made to him by the collector, on sales of the property for nonpayment of taxes. These deeds were in proper form and had been duly recorded. No contention has been made that, on their face, they fail to show a valid tax title in the grantee named in them. It is said that on proper proceedings each of them has been held invalid by a court of competent jurisdiction, on account of errors, as we suppose, in the previous assessment. The question is therefore presented, whether one holding such a deed duly recorded, which purports on its face to be regular and valid, is included in the language, "persons appearing in the
records of the county where the real estate lies as owners thereof," within the meaning of these words in St. 1889, p. 837, c. 84, § 1, (Rev. Laws, c. 12, § 15). We are of opinion that he is. In Butler v. Stark, 139 Mass. 19, 29 N. E. 213, it is decided that a title of record under a tax deed, which is subject to a right of redemption, makes the holder a "person appearing of record as owner," within Pub. St. 1882, c. 11, § 13. This case is decisive of the question before us. The statute does not put upon the assessors the burden of inquiring into the validity of titles which appear of record to be good.
2. The description of the property in the valuation list was sufficient. It is not intended that such a description should necessarily be accurate in detail for the purpose of a conveyance. It is enough if it fairly designates, for the information of those interested the property intended to be taxed. Bemis v. Caldwell, 143 Mass. 299, 9 N. E. 623. Tobey v. Wareham, 2 Allen, 594; Westhampton v. Searle, 127 Mass. 504. Some of the requirements of the statute as to the classification of property in the assessment list are intended to furnish information for the public authorities in reference to the equalization of taxation among the cities and towns of the state, and a disregard of them is not fatal to the validity of the tax. Westhampton v. Searle, ubi supra; Torrey v. Millbury, 21 Pick. 64-67.
In the present case the reference to the house by number, the designation of the lot, and the statement of the number of square feet in it were a sufficient description for the valuation list.
3. The next question relates to the description in the deeds under which the defendants claim. In two of these deeds the descriptions are the same. They are accurate, except in one particular. In fixing the boundary line between the land conveyed and the land next south of it the deed starts at a point on Jerome street "about one hundred and ten feet" from Hawthorne street, and it gives the last course and distance returning to this point as "thence southerly on Jerome street about sixty-five feet." In fact the point was exactly 110 feet from Hawthorne street and 65 feet from lot No. 38. If the word "about" had been omitted, the description would have been perfect; but where this word is used in connection with a statement of distance, it is treated as leaving the statement unaffected by it if there is nothing to show that it was not exactly correct. As the measurement from the fixed point in each direction corresponds with the figures given in the deed, and as the area stated also corresponds with the directions and distances, we think the use of the word "about" does not create any uncertainty in the description in these two deeds, and that in these two cases the deed of the collector is valid.
In the case of Young v. Parker the description differs from that already considered by
giving the distance from Hawthorne street as about 112 feet, and the distance from lot 38 as about 63 feet. If we treat the word "about" as we treated it in the other two deeds, it would fix the southerly line of the lot two feet further north than the true line, and would create a discrepancy between the dimensions and the area stated in the deed, and a like discrepancy between the deed and the statement in the valuation list. We cannot doubt in view of the description in the valuation list and of the title of Willard Welsh then shown of record, that the land taxed was the lot 65 feet wide across the front extending to a line 110 feet from Hawthorne street. This deed conveys only a part of that lot. At such a sale the collector was required by the statute to sell either the whole land taxed or an undivided part of it. Rev. Laws, c. 13, § 41. Therefore, his sale by metes and bounds of a part of the lot was invalid. In this case there should be a decree for the plaintiff. In the other two cases the bills will be dismissed.
(192 Mass. 257)
URQUHART v. SMITH & ANTHONY CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 19, 1906.)
1. MASTER AND SERVANT-INJURIES TO SERVANT-DEFECTIVE WAYS-WALKS.
Where a plank walk was maintained by a master, leading from its factory to an outhouse provided for the accommodation of employés, such walk might be found to constitute a part of the permanent "ways" of defendant's factory, which it was defendant's duty to maintain in a suitable and reasonably safe condition for use, as provided by Employer's Liability Act (Rev. Laws, c. 106) § 77.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 179, 200.] 2. SAME-NEGLIGENCE EVIDENCE.
Evidence that snow and ice were permitted by a master to accumulate on a plank walk maintained by it for the accommodation of its employés in such quantities that, on being trampled down and then frozen, the surface was rendered uneven and dangerous, and so continued for several days before the accident, was evidence of negligence on the part of the master. 3. SAME-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.
Where a plank walk leading from defendant's factory to an outhouse was not structurally defective, but was rendered less convenient for travel owing to an accumulation of ice and snow thereon, a servant, injured by falling while attempting to use the walk, was not negligent as a matter of law in not choosing a more convenient route, or in failing to ascertain that the walk was too dangerous to warrant him in using it.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.] 4. SAME-STATUTES-KNOWLEDGE OF DEFECT
character the servant may be ignorant until injured thereby.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 625-637, 641-647.]
5. SAME-BURDEN OF PROOF.
Proof of a compliance with such section, where the defect is known to the servant is not a condition precedent to the servant's right to recover, but the failure to comply therewith is a matter of defense, the burden of proving which is on defendant.
Exceptions from Superior Court, Suffolk County; John H. Hardy, Judge.
Action by one Urquhart against the Smith & Anthony Company. A verdict was rendered in favor of plaintiff, and defendant brings exceptions. Overruled.
The action was for personal injuries to plaintiff caused by his falling on a plank walk leading from the shop where plaintiff was employed to a privy. On the morning of the accident and for several days previous the walk had been covered with ice and frozen and trampled snow from 22 to 3 inches thick. The snow and ice was in a rough condition near the door and at the further end, but was smoother near the middle of the walk. During the night before the accident there had been a light fall of snow, and no ashes or sand had been sprinkled on the ice.
J. Winthrop Pickering and Everett H. Hadley, for plaintiff. Walter I. Badger and Wm. H. Hitchcock, for defendant.
BRALEY, J. Upon the evidence the jury could have found that the plank walk was a part of the permanent ways of the defendant's manufactory designed for the use of its employés in passing to and from the privy provided for their accommodation, and which was located at the rear of the shop where the plaintiff worked. Coffee v. New York, New Haven & Hartford Railroad Co., 155 Mass. 21, 23, 28 N. E. 1128; Prendible v. Connecticut River Mfg. Co., 160 Mass. 131, 35 N. E. 675; McMahon v. McHale, 174 Mass. 320, 54 N. E. 854. Being thus connected and forming a part of the establishment, whether at common law, or under Rev. Laws, c. 106, § 71, it became the duty of the defendant to maintain the walk in suitable condition for the convenience of the plaintiff, and if snow and ice were accumulated in such quantities that upon being trampled, and then frozen, the surface was rendered uneven and dangerous, and so continued for several days before the accident, there was evidence that by reason of its negligence this duty had not been discharged.. Geloneck v. Dean Steam Pump Co., 165 Mass. 202, 43 N. E. 85. The principal question, however, is that he was not in the exercise of due care and assumed the risk. In support of this contention it is urged that the unsafe surface of the walk was obvious. and from the plaintiff's evidence undoubtedly it appeared that from previous use he was
919, and cases cited. Such an issue is for the jury. Mahoney v. Dore, ubi supra; Wagner v. Boston Elevated Railway Co., ubi supra. In principle, nor substantially upon the evidence, there would seem to be no sound distinction between the present case and Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537. The plaintiff in that case injured by falling in a stairway outside the building where she worked, but which was used by the employés, and had become slippery and unsafe by escaping steam which froze as it fell on the treads. It was held that whether treated as an assumption of the risk, or as a question of due care, the issue of the plaintiff's negligence was for the jury. The difference between ice formed by the freezing of melted snow, and that formed by the freezing of the moisture caused by precipitated steam, where in each instance the ice makes a coating which may render the surface, whether consisting of steps or of a plank walk unsafe for use by those having occasion to lawfully pass over either, is not apparent. The defect is caused oy the same element, and although the circumstances of each case may vary, yet the care required of the servant is only reasonable diligence, and it cannot be said as a matter of law, that to use a plank walk is more unsafe than to use stairs when each has become coated with ice through the negligence of the master. Mahoney v. Dore, ubi supra. In suits for injuries caused by defects in public ways it also has uniformly been held not only that the doctrine of contributory negligence is applicable, but that previous knowledge by the person injured of an open defect, or of a general condition which ultimately proves to be a defect, is not sufficient generally to prevent recovery. Snow v. Provincetown, 120 Mass. 580, 588; Little v. Brockton, 123 Mass. 511; Woods v. Boston, 121 Mass. 337; Norwood v. Somerville, 159 Mass. 105, 33 N. E. 1108; Torphy v. Fall River, 188 Mass. 310, 314, 74 N. E. 465; Campbell v. Boston, 189 Mass. 7, 10, 75 N. E. 96, and cases cited.
aware not only of the presence of uneven and | Railway Co., 188 Mass. 437, 441, 74 N. E. ridgy snow and ice, but also that the night before a light flurry of snow had fallen which might tend to cause his footing to be still further unstable. But what effect this knowledge of the combination should have had upon the reasonable care required of him could be found to depend upon the nature of the defect. Street v. Holyoke, 105 Mass. 82, 7 Am. Rep. 500; Moylon v. D. S. McDonald Co., 188 Mass. 499, 503, 74 N. E. 929. The jury might come to the conclusion that the walk had not been rendered impassable, and that it was possible to pass over it in safety, or that in attempting to pass, although in a general way appreciating the slippery and uneven nature of the surface, the plaintiff had not failed to exercise ordinary care. Mahoney v. Metropolitan Railroad Co., 104 Mass. 73; Mahoney v. Dore, 155 Mass. 513, 518, 30 N. E. 366. A plank walk not structurally defective, and properly constructed, but which temporarily may be less convenient externally for travel owing to an accumulation of ice and snow still may be used by the servant in the course of his employment without negligence necessarily being imputed to him. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 157, 158, 29 N. E. 464, 31 Am. St. Rep. 537; Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 159, 36 N. E. 789; Bence v. New York, New Haven & Hartford Railroad Co., 181 Mass. 221, 226, 63 N. E. 417. That another way of communication was available, of which the plaintiff knew, and where he would have been unexposed to a similar possible danger does not conclusively establish the proposition that he was careless. There may be instances where the danger of using one passageway that occasionally is used as a means of communication between different points in a railroad yard over another which is commonly taken may be so extreme and manifest, that a servant who either in disobedience of any order directing him to take the safer course, or to gain time chooses the first, as a shorter or more convenient route, and is injured, has been held by his willingness to take chances which ordinary prudence would have condemned as careless guilty of such negligence as to preclude recovery. Galvin v. Old Colony Railroad Co., 162 Mass. 533, 39 N. E. 186. But here as the opportunity afforded the plaintiff was without the distinction that usually one road was considered safer than the other, his choice at most was evidence to be considered only as bearing upon the question of his negligence. It manifestly could not have been ruled as matter of law that because having observed the icy surface, the plaintiff fully appreciated the probability of being injured, and then voluntarily exposed himself to any danger that might be incurred by attempting to use the walk. Thomas v. Western Union Telegraph Co.. 100 Mass. 156; Wagner v. Boston Elevated
In neither case is the traveler, or the servant, freed from the duty of exercising reasonable care, but even with such knowledge, where the roadbed is unimpaired, and the way is apparently left open for use, how far his reliance upon the presumption that the public authorities, or the master had performed the duty of making it reasonably safe should have affected his conduct, when the question of his negligence is raised, results in a question of fact and not of law. Thompson v. Bridgewater, 7 Pick. 188; Lawless v. Connecticut River Railroad. 136 Mass. 1, 3; Moynihan v. Hills Co., 146 Mass. 586, 591, 592, 16 N. E. 574, 4 Am. St. Rep. 348. A further defense is interposed that under Rev. Laws, c. 106, § 77. if the plaintiff knew of the defect and did not inform the defend
ant, or some person intrusted by it with general superintendence he is barred from any remedy for the injury. This section does not require notice of latent defects of which by reason of their character the servant may be ignorant until thereby injured, nor is the requirement where the defect is known a precedent condition, compliance with which must be shown by the plaintiff, but is a matter of defense, with the burden of proof resting upon the defendant. Murphy v. Marston Coal Co., 183 Mass. 385, 388, 67 N. E. 342; Conolly v. Waltham, 156 Mass. 368, 371, 31 N. E. 302. If the plaintiff admitted knowledge of the snow and ice it still would be an issue of fact whether he also should have known before the experience gained by his fall, and consequent injury, that the walk was thus made defective. Indeed, even if the defect of itself had not been transitory, but of a permanent character, which would exist where the structural condition of the ways, works and machinery, or of their adjustment had become so impaired that further use might be attended with obvious danger, yet in all cases it would not follow that an employé must be presumed conclusively to know that the change constituted a defect within the meaning of the statute. although in some instances such knowledge might be imputed from the common experience of mankind.
It is to be assumed that full and accurate instructions were given upon this as well as upon the other issues as no exceptions were taken to the charge to the jury, to whom the case was properly submitted. A majority of the court is of opinion the order must be: Exceptions overruled.
(192 Mass. 233)
CADIGAN v. CRABTREE. (Supreme Judicial Court of Massachusetts. Suffolk. June 19, 1906.)
1. BROKERS-AUTHORITY TERMINATION-IN
Plaintiff, a broker, after obtaining certain tenants and being unable to get an answer from defendant's attorney, went to defendant's hotel and in an interview defendant told him that she would not do anything just then except sell the property, that plaintiff could get her a customer, and that if she changed her mind about renting the property she would advise plaintiff. Held, that plaintiff's authority to lease was thereby revoked.
[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, § 45.]
Where, in an action for broker's commissions in negotiating a hotel lease, the court charged that the jury could find for plaintiff, either if plaintiff's agency had not been revoked or if the revocation was made in bad faith, the refusal of certain instructions that, under the evidence, plaintiff's employment to to procure a tenant was revoked by what took place in a certain interview between plaintiff and defendant could not be sustained on the theory that a revocation, if in fraud of plaintiff's rights, would not amount to a revocation.
3. SAME-QUESTION FOR JURY.
In an action for broker's commissions, the question whether the broker was the efficient cause of the completed transaction is ordinarily a question for the jury, where no exclusive agency has been given and where more than a single broker has worked on the case.
[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, § 128.]
4. EVIDENCE-JUDICIAL ADMISSIONS.
In an action for broker's commissions, a question asked of plaintiff on cross-examination, whether at the argument before the Supreme Court at a previous hearing the Chief Justice did not ask plaintiff's counsel in plaintiff's presence whether he contended that defendant was acting in bad faith when she attempted to terminate plaintiff's agency in January, 1899, was properly disallowed, since the answer of plaintiff's counsel in the negative did not preclude plaintiff from contending at the trial that defendant acted in bad faith in revoking his agency.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 708.]
Exceptions from Supreme Judicial Court, Suffolk County.
Action by John J. Cadigan against Lotta M. Crabtree. The jury returned a verdict for defendant in accordance with the instructions of the court on the fourth count of plaintiff's declaration and for plaintiff on the seventh count, and defendant brings exceptions. Sustained.
Action by plaintiff to recover broker's commissions on a lease made by defendant to the firm of Gould & Pollo for property situated in Boston, known as the "Hotel Reynolds." Plaintiff testified to his employment by defendant, and that after securing Gould & Pollo as tenants he went to Mrs. Crabtree's attorney, and, being unable to get a definite reply from him, went to defendant at the Adams House, who declined to complete the lease "just then," but stated that she desired to sell the property for $1,100,000 and wished plaintiff to see if he could get her a customer. Plaintiff then asked her to let him know if she changed her mind about renting it, and she replied that she would. Shortly thereafter defendant wrote plaintiff that the property was for sale only for $850,000, and still later wrote plaintiff withdrawing the property from his hands and notifying him that she had placed it exclusively in the control of another, after which defendant leased the property to Gould & Pollo, practically on the terms to which they had agreed with plaintiff; they agreeing to hold defendant harmless by reason of any claim made against defendant by plaintiff for his services, etc. Prior to the charge, defendant submitted and the court refused certain requests to charge; the eighth and ninth, referred to in the opinion, being as follows: "(8) Upon the evidence you would not be warranted in finding that the employment or authority of plaintiff to attempt to procure a tenant for defendant's property was not terminated or revoked by the defendant on or about January 2, 1899, by what took place