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exceptions to the master's report, plaintiff appeals. Decree in the first suit affirmed, and in the second suit modified.
Jesse C. Ivy, for plaintiff. John Lowell and James A. Lowell, for defendant Breck.
BRALEY, J. These cases were referred to a master under decretal orders which did not require a report of the evidence, but only such facts and questions of law as either party might request. Under this form of reference he declined to report the testimony in detail, and as the report is full and sets forth the facts on which his rulings of law were based, he was not obliged to submit the evidence on which these conclusions were reached. Parker v. Nickerson,. 137 Mass. 487, 493; Sawyer v. Com., 185 Mass. 356, 359, 70 N. E. 438. In all the plaintiff alleged 141 exceptions to the original and supplementary reports, and although his brief presents many of them in groups, and others by single instances, yet generally they may be correctly classified as relating either to the rights of the parties under the agreements, and the declaration of trust as modified, or to adverse findings of fact made upon conflicting evidence. Upon a full consideration of these exceptions no reversible error is found except in one particular to which full reference later will be made. The partnership of which the plaintiff and decedents comprised all of the members, was a joint-stock company with transferable shares, organized under a declaration of trust. Originally it was provided that the death of a member should not work a dissolution of the firm, but those who then became lawfully entitled as owners should succeed to all the rights in the certificate held by the deceased member. At the expiration by limitation of the first partnership, it was extended for a further period, which had not expired at the time of the testator's death. This agreement of extension or renewal essentially modified the declaration of trust by proving that upon the death of either of the trustees, who then were Adams and Barney, at the election of any stockholder the partnership should be terminated, and the assets distributed among the beneficiaries in proportion to their holdings. If the form of the association was intended to give to the partnership the attributes of a corporation without taking organized corporate form while the liability to creditors for partnership debts would not be changed, as between themselves any right to contribution would be ascertained according to the shares held by each, and upon death distributees or legatees would succeed to the title and interest of the deceased partner, in such share or shares, the value of which might be ascertained by an appraisal, but there would be no division or distribution of the assets as such for the firm would continue as before. Tyrrell v. Washburn, 6 Allen, 466; Gleason v. McKay, 134 Mass. 419, 425; Phillips v.
Blatchford, 137 Mass. 510, 515; Breck v. Barney, 183 Mass. 133, 66 N. E. 643; 2 Lindley on Part. (2d Am. Ed.) 762. A bill in equity, however, would lie by the plaintiff if necessary to compel an accounting and the payment of dividends, if the trustee in the exercise of a sound discretion had refused or failed to divide accrued net profits. Phillips v. Blatchford, ubi supra; Howe v. Morse, 174 Mass. 491, 55 N. E. 213. And whatever the plaintiff's rights as a partner may have been on the death of Adams to demand an adjustment on the basis of a dissolution and final distribution according to the proprietary interest of the members, he has not chosen to exercise this option, but seeks by the first bill specific performance of the several contracts, and by the second, that an account of profits may be taken for the purpose of establishing the value of his services, which he alleges were rendered, not only under the written agreements, but also under certain additional oral contracts made with Adams, and after his death, with Barney, who as associate trustee, had succeeded to the authority of the principal trustee with a corresponding right to make such contracts in behalf of the firm. But this evidence not being reported, the master's finding that none of these oral contracts were proved is final. Freeland v. Wright, 154 Mass. 492, 28 N. E. 678; Joslin v. Goddard, 187 Mass. 165, 72 N. E. 948. In the beginning, the defendant's testator the owner of a controlling interest in the company, and so continued until his death, when out of the entire capital of 3,000 shares he possessed 1,750, and of the remaining 1,250 the plaintiff owned 500 shares, while Barney, the third partner, held 750 shares. Breck v. Barney, ubi supra. This preponderating interest permitted him as principal trustee under the terms of the trust substantially to manage the affairs of the company as he deemed expedient, and all of the stock owned by the plaintiff had been sold to him from time to time by Adams according to the terms of the agreements. The plaintiff's right to specific performance and to an accounting is thus left on these agreements, and the first question of importance is when within the meaning of the contracts did he leave the employment of the firm, as that date determines the time when his shares
ended. They each contain a clause that the plaintiff should be considered as the absolute owner "subject only as between the parties to the agreements hereinafter mentioned." An important distinction is to be remembered that they are not executed by the company, but only by Adams, whose obligation to repurchase the shares was his personal undertaking. For the purposes of determining the excess in price beyond the par value a full examination of the books of the partnership was required, as well as for the purpose of ascertaining the amount of unpaid dividends,
or dividends which had accrued, but had not been declared, and a possible embarrassment is removed by the master's finding that the surplus shown by the partnership books is to be treated as "accrued dividends which have not been declared"; from which it follows that the shares never have exceeded in value for each year the maximum price at which they were to be repurchased. In his bill for specific performance the plaintiff alleges that he left the employment of the firm "after January 1, 1901," without naming any definite time, but the master finds that on May 16, 1901, in compliance with the agreements he gave a notice in writing to the executor that as this employment had ceased he was ready to transfer the shares, and demanded a settlement. While it is manifest from the report that the plaintiff in fact continued at the company's place of business acting with Barney in the management of its mercantile affairs until he was discharged the last of March, 1903, by the executor who had been elected principal trustee, and that on the 27th of that month he again demanded a settlement and repurchase of the shares, yet the master's finding, that the plaintiff's presence after May 16th was not as an employé, but as a member of the firm, and that he actually ceased to be employed by the company after the first date, is not reviewable as the evidence had not been reported. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 38, 66 N. E. 427; Crane v. Brooks, 189 Mass. 228, 75 N. E. 710; O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700. Apart from this finding, however, the plaintiff is not shown to have acted under any mistake of fact, as the correspondence and negotiations between him and the executor make it plain that having taken this position he did not withdraw his demand or suggest any other date of adjustment as being either preferable, or more equitable. The executor, at the plaintiff's request, having treated the date selected as the time when performance was enforceable, proceeded to arrange for a settlement by a sale of the company's property, and to permit the plaintiff subsequently to shift his position by moving forward the date for an accounting which might result in an additional payment to him, therefore, would be inequitable and unjust. Raphael
v. Reinstein, 154 Mass. 178, 189, 28 N. E. 141. See Miller v. Hyde, 161 Mass. 472, 482, 37 N. E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424, and cases cited. If this date is accepted as the time of adjustment the amount to be paid is to be determined by the fourth clause of each agreement. These clauses except as to dates in this particular are synonymous, and by them to the par value of the shares is to be added the plaintiff's one-sixth part of the net profits, which may be represented by surplus assets considered as dividends accrued but not declared. This method was adopted by the master, who took the financial standing of
the company as shown by its books upon the date named by the plaintiff as the true criterion for the ascertainment of assets in whatever form they appeared. Instead of ascertaining the net assets by charging off uncollectible debts carried on the books at their face value, but which if taken at their actual value would have left little above the par value of the shares, he allowed the plaintiff the full amount, and there is no sufficient reason shown in the numerous exceptions to this part of the report why the result reached, and which was sufficiently favorable to the plaintiff should be modified or reversed.
In taking up the exceptions so far as they are found to relate to the second case, they rest on a misconception by the plaintiff of the nature of his remedy. Having made an election for specific performance without a dissolution of the firm, he cannot treat the partnership as dissolved, and demand an accounting on that basis, for the company continued under the declaration of trust unaffected by the modification, though one member had died, and when the plaintiff sold his shares, he sold his interest in the property, however designated, and the purchaser thereby became entitled to what he had purchased. Between the parties this transfer became absolutely effective May 16, 1901, and thereafter the shares and profits by way of undeclared dividends attaching to them became vested in the executor, who stood in the testator's place. Phillips v. Blatchford, ubi supra. See Kingman v. Spurr, 7 Pick. 235. What the plaintiff in effect attempted to obtain before the master, and now endeavors to obtain under his exceptions, is, that for the purpose of enforcing the agreements the partnership is a joint-stock company and when a member has been paid for his shares, which carry with them accrued but undeclared dividends, they belong to the transferree, but that after such a sale and transfer has been made the former shareholder can maintain a bill in equity against the partnership, which then includes the new member, for an accounting of these profits. The answer is obvious, the plaintiff is no longer a member of the firm having unreservedly parted with all his title and interest in the company when he sold his shares with their accumulations. If the principal object for which the bill was brought failed when the master found that the alleged oral contracts were not proved, or that it could not be maintained for a partnership accounting, except to recover arrears of salary, and dividends declared and placed to his credit, but not paid, further relief may be granted for the purpose of compensating the plaintiff for any service he may have rendered, and for which the partnership was liable. It is undisputed that he did not actually sever his connection with the business management of the company until he was discharged March 27, 1903, and the master in his supplementary report finds that during the period from May
16, 1901, to this date, his services were beneficial, and estimates their value at $7,500, and the evidence on this issue not being reported, this finding is conclusive. But as the plaintiff's connection with the company had not been discontinued while the negotiations were in progress, there would seem to be no sufficient reason why independently of the agreements he is not entitled to reasonable remuneration in some form, although disallowed by the master, especially as his services which were valuable were performed with the knowledge and without any dissent by the executor, and with the knowledge and assent of the associate trustee, who during the time properly represented the company. See Schenkl v. Dana, 118 Mass. 236; Jepson v. Killian, 151 Mass. 593, 24 N. E. 856, 21 Am. St. Rep. 508; Fitzgerald v. Allen, 128 Mass. 232, 235.
The motion of the plaintiff at the hearing before the master under the order of recommittal that the whole case be reopened for the introduction of further evidence under the second bill was irregular as it should have been addressed to the court, and his refusal to grant this request is not a matter of exception. 2 Dan. Ch. Pl. & Pr. (5th Ed.) 1221, n. 2. And as all the remaining exceptions to the supplementary report depend upon a different view of the testimony than that taken by him, they must be overruled.
The thirty-sixth exception to the original report, that "the account, findings and items are less than is required by law, equity, the evidence, and the weight of the evidence," therefore must be sustained. For the purpose of allowing this sum the final decree under the second pill must be reversed so that the account may be reformed by the addition of $7,500 with interest, but the final decree under the first bill is affirmed for reasons already stated. Appeals also having been taken from the interlocutory decrees it is enough to say that the first decree granting a limited recommittal protected the plaintiff's rights at the only point where the master is found to have erred, while the second decree overruling his exceptions under the first bill, and confirming the report, should be affirmed, as no error is shown, though as to the second bill, the decree must be modified to the extent of allowing the exception to the refusal to award reasonable compensation for the period named.
shall pay a proportional charge of the cost of making and repairing the sewer, to be ascertained and assessed by the municipal authorities. Section 4 declares that a person aggrieved by such assessment may apply for a revision thereof and be entitled to a hearing before a jury, etc. Section 5 provides that the city council may adopt a system of sewerage for the whole of the municipality, and that assessments under the provisions of section 3 shall be made upon owners of land within such territory, etc. Held, that the provisions of section 4, authorizing appeal from an assessment under section 3, are also applicable to section 5, entitling one whose property is assessed under the authority of the latter section to appeal.
[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1183.] 2. SAME SEWER THROUGH PRIVATE LANDSIRREGULAR ASSESSMENT-VALIDITY.
Rev. Laws, c. 49, § 1, authorizes municipalities to make and maintain all sewers necessary for public convenience or health in public or private ways or in the land of any person. Section 3 provides that a person whose private drain enters a common sewer shall pay a part of the expense of making and repairing the sewer, while section 5 gives municipalities the power to create a sewerage system and assess the cost upon lands fronting on the streets or ways in which sewers are constructed. Held that, where an assessment made under an ordinance enacted under the authority conferred by section 5 was for a sewer running mainly through private lands, the assessment might nevertheless stand, as the city had authority under section 1 to construct such a sewer, and under section 3 to make an assessment for its cost.
Case Reserved from Supreme Judicial Court, Essex County.
Petition by one Taylor against the mayor and aldermen of Haverhill for a writ of certiorari to quash certain sewer assessments. Case reserved from the Supreme Judicial Court. Petition dismissed.
Moody, Burdett, Wardell & Snow and Joseph H. Pearl, for petitioner. Essex S. Abbott for respondent.
HAMMOND, J. This is a petition for a writ of certiorari to quash two sewer assessments. One of the sewers runs through a public highway called "Mill Street," and the other chiefly through private lands of the petitioner and others, who had granted to the city the right to lay the sewer through their lands. Various objections are urged by the petitioner against the validity of each of these assessments. We shall consider only those which have been argued upon the brief of the petitioner, and shall treat the others as waived.
1. As to the Mill street sewer. The petitioner contends that the assessment was made under section 7 of chapter 49 of the Revised Laws, and not under section 3, and that there is nothing to show over what part of the land that assessment extended. But by an inspection of the proceedings of the assessing board it clearly appears that the assessment was made under the sixth section of the city ordinances, and therefore under the authority conferred by section 5 of chapter 49 of the Revised Laws, and not by section 7. And when the proceedings are read in connection
with the ordinance there is no doubt as to the precise portion of the petitioner's land covered by the assessment. The lot embraces the whole frontage on the street and extends back 150 feet and no more.
It is suggested by the petitioner that unless an opportunity for a hearing upon an appeal for an abatement is given the assessment would seem to be illegal and void because no hearing was granted to the petitioner. But we think that the provisions of chapter 49, § 4, which grant an appeal, are applicable to this assessment.
2. As to the sewer running chiefly through private lands. This sewer was not built in any street or way, and therefore the provisions of the ordinance are not applicable so far as it runs through private lands. But the board had the power to construct the sewer (Rev. Laws, c. 49, § 1), and to make an assessment for the same under section 3 of the same chapter; and, although the certificate of the engineer seems to have followed the form prescribed by the ordinance in the case of a sewer located wholly in a public street, and although the master finds that "the computations for the assessments were made in accordance with the provisions" of the ordinance, still, in view of the answer of the board it must be assumed that the estate of the petitioner was fairly and equitably assessed upon the basis of benefit received by the construction of the sewer. Such an
had become rotten, it appearing that plaintiff had been employed in piling similar stones for two years and that his opportunities for observation were equal to those of any one, contributory negligence precluded recovery.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 706-709.]
Exceptions from Superior Court, Suffolk County; Wm. B. Stevens, Judge.
Action by one Regan against one Lombard and another. Judgment in favor of plaintiff, and defendants bring exceptions. Exceptions overruled.
H. E. Bolles, Boles & Stearns, and Olcott O. Partridge, for plaintiff. Dickson & Knowles and Wm. B. Sprout, for defendants.
assessment, even if not authorized by the the
ordinances or by Rev. Laws, c. 49, § 5, was authorized under Rev. Laws, c. 49, § 3, and may properly stand as valid under the powers conferred by that section. The petitioner in this respect shows no good reason for writ of certiorari.
As in the first sewer, so in this, there is a right to be heard on appeal, so that in that way the landowner proceeding in due time can always be heard before the assessment becomes finally fixed. Rev. Laws, c. 49, § 4.
We think also that it definitely enough appears upon what part of the estate the assessment is made for this sewer. The lot embraces the whole front upon the strip conveyed to the city by the petitioner, and extends back 150 feet from that strip.
We do not see that justice requires that the petition should be granted. Petition dismissed.
(192 Mass. 319)
REGAN v. LOMBARD et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.) MASTER AND SERVANT-INJURIES TO SERVANT -PLACE FOR WORK.
In an action under St. 1887, p. 899, c. 270, § 1, cl. 2, for injuries to a servant alleged to have been due to the negligence of a person intrusted with superintendence, the injuries having been caused by the fall of a pile of curbstones, owing to the fact that they were insufficiently piled originally, or that the dunnage between them
BRALEY, J. In Regan v. Lombard, 181 Mass. 329, 63 N. E. 895, it was decided that this action could not be maintained at common law, but whether the plaintiff could recover on the count under St. 1887, p. 899, c. 270, § 1, cl. 2, was not determined. At the second trial the plaintiff relied solely on this count, which alleged that he was injured by reason of the negligence of some person intrusted by the defendants with the duty of superintendence, and who at the time of the accident was engaged in the performance of this duty. Assuming, without deciding, that there was evidence from which the jury could have found that Hanlon was a superintendent within the meaning of the statute; that the curb stones were inproperly and insecurely piled, or the dunnage between them either originally was unstable, or had become rotten and unsound, and that in the exercise of reasonable diligence the superintendent should have known of these conditions which might render it unsafe and dangerous for the plaintiff to assist in removing them, yet he cannot recover if at the time of the accident he was guilty of contributory negligence. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537; O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161; Wagner v. Boston Elevated Ry. Co., 188 Mass. 437, 74 N. E. 919. The stones, when placed, consisted of two circular tiers open at one end, and so arranged that between the inner and outer circles there was a space, into which the plaintiff and other employés went when the stones were to be removed by means of a derrick, the boom of which when lowered for either tier described in its movement the circumference of each circle. As the stones of each tier were piled, when necessary, they were adjusted by wooden blocks of different lengths, which kept them separate, and rendered the completed pile level and stable. When needed they were raised from their position by the derrick, and lowered upon a dray, and by these removals the height of the tiers varied.
It was the undisputed evidence of the plaintiff that he had been in the employment of the defendants for many years, during
which he had assisted in other yards belonging to the defendants in piling and placing similar stones by the method described, and although working in this yard for some considerable time before the accident he did not assist on the tier which fell, yet the tiers in the different yards were supported substantially in the same way, and that he was familiar with the process used. In describing this process he further said that it was the duty of those who piled to chink the stones by the use of dunnage, which consisted of such refuse wood as could be picked up on the premises. After being placed the arrangement of the stones which fell involved no complexity of design such as may arise in the adjustment of ways, works and machinery to adapt them to the purposes of a manufacturing establishment, and where the mechanism employed, or the hazard arising from its use, is such as not to be fully understood by the inexperienced employé. Or where for the first time a servant is directed by his employer, or by those who properly represent him, to use an instrumentality which is defective, and the defect is or should have been known to them, but is unknown to him. In such cases the servant properly may rely upon the presumption that he will not be directed to put himself in a situation where he may be exposed to the chance of physical injury, or called upon to perform his work by using unsafe appliances. Connolly v. Waltham, 156 Mass. 368, 31 N. E. 302; Cunningham v. Atlas Tack Co., 187 Mass. 51, 72 N. E. 325; Feeney v. York Mfg. Co., 189 Mass. 336, 75 N. E. 733. If it could have been found that the accident was caused by the improper piling, or the decayed dunnage which gave way, thus permitting the stones to loose their balance, and to slide or fall upon him, and that the defendants, or their representatives should have known, and notified the plaintiff of this possible danger, even then he would not have been put in possession of any information of which he was ignorant, or with which by the use of ordinary care he could not have made himself acquainted. From his former experience he had become familiar with the general character of the dunnage used, as well as the proper manner of setting the stones in place, and as a person of ordinary intelligence must have been aware that if this was rotten, or the stones improperly put in position, the structure, or a part of it, when disturbed, might be rendered unstable, and some of the stones fall. Moreover, he testified that when he entered between the tiers his opportunity for observation was unobstructed, and equal to that of anybody, for their general character was plainly visible. Any warning from the superintendent that if the dunnage was rotten, or the stones had become unplaced they might fall, would have conveyed to him no information of which he already was not possessed, and the failure to appraise him of an obvious danger, which under the circum
stances he either knew, or must be held to have known to be present does not constitute a breach of duty by the superintendent while so acting, and therefore a verdict for the defendants was rightly ordered. Downey v. Sawyer, 157 Mass. 418, 32 N. E. 654; Goodes v. Boston & Albany R. R. Co., 162 Mass. 287, 38 N. E. 500; Lamson v. American Ax & Tool Co., 177 Mass. 144, 58 N. E. 585, 83 Am. St. Rep. 267; Meehan v. Holyoke Street Ry. Co., 186 Mass. 511, 72 N. E. 61. Exceptions overruled.
(192 Mass. 295)
HEBBLETHWAITE v. OLD COLONY ST. RY. CO. (two cases).
(Supreme Judicial Court of Massachusetts. Norfolk. June 20, 1906.)
1. CARRIERS-INJURIES TO PASSENGER-ACTION-QUESTION FOR JURY.
In an action against a carrier for injuries to a passenger. held, that the question as to whether plaintiff was injured in the manner she claimed was for a jury.
Where, in an action for injuries to a passenger, it appeared that the car came to a sudden stop and that a piece of iron came up through the seat on which she was seated, in the absence of any explanation tending to show that the accident occurred without negligence on the part of the defendant, a finding of a want of proper care was justified.
[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1283-1290, 1307.]
Exceptions from Superior Court, Norfolk County; Chas. U. Bell, Judge.
Separate actions by one Hebblethwaite and wife against the Old Colony Street Railway Company. Verdicts in favor of plaintiffs, and defendant brings exceptions. Exceptions overruled.
Francis P. Garland and Edwd. D. Wright, for plaintiffs. Asa P. French, for defendant.
MORTON, J. These two actions were tried and argued together. The first is by a married woman to recover for injuries received by her through the defendant's negligence while a passenger in one of the defendant's cars. The other is by the husband to recover the amount paid for medical services and other expenses and for loss of consortium. There was a verdict for the plaintiff in each case. The cases are here on exceptions by the defendant to the refusal of the court to rule that the plaintiffs were not entitled to recover and that there was no evidence of negligence on the part of the defendant.
The female plaintiff's account of the accident was that she took a car between East Weymouth and South Weymouth and after she had been riding six or seven minutes towards South Weymouth the car which was going quite fast came to a sudden stop. "A big crash came and the car did not go any farther and there was a piece of iron came up about a foot from her; that she fell over onto the piece of iron and then bound