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reputable physician" as a referee if the two arbitrators named are unable to agree. These are matters of substance, and render the submission void as a submission under the statute. As to the second objection stated above see Monosiet v. Post, 4 Mass. 532; Franklin Mining Co. v. Pratt, 101 Mass. 359. As to the general principle see Abbott v. Dexter, 6 Cush. 108; Bent v. Erie Tele. & Tele. Co., 144 Mass. 165, 10 N. E. 778. This rule was not overthrown by the recent decision in Giles v. Royal Ins. Co., 179 Mass. 261, 60 N. E. 786.
Since the defendant elected to treat the submission to arbitration as a submission under Rev. Laws, c. 194, and as a submission under that statute it is void, there was no error in proceeding with the trial of these two actions in the court below.
It is perhaps worth while to state in addition that the present award in any event was bad because it was a joint award on the submission of two several causes of action. See Giles v. Royal Ins. Co., 179 Mass. 261, 60 N. E. 786.
The appeal is not before us, no final judgment having been entered.
Appeal dismissed. Exceptions overruled.
(192 Mass. 538)
MCDONNELL v. NEW YORK, N. H. &
(Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1906.)
1. MASTER AND SERVANT-INJURIES TO SERV
Plaintiff, a railroad fireman, was injured by the slipping of a ladder which he was using for the purpose of climbing to the top of one of defendant's engines at the direction of the engineer. Plaintiff claimed that the ladder was defective in that it was fitted with a V-shaped iron at the bottom, but there was nothing to show that such iron was not a usual and proper mode of construction, or that the ladder was thus made unsafe in the hands of a person exercising ordinary care, though it was shown that the ladder slipped and had done so once before. Held, that such facts were insufficient to establish negligence on the part of the railroad company in furnishing plaintiff with an unsafe appliance.
2. SAME CARE REQUIRED.
A railroad company is not bound as a matter of law to furnish a stationary ladder or one with hooks for the use of a fireman in climbing to the top of one of its engines, but was only bound to exercise reasonable care to see that the ladders furnished were safe and proper for the use for which they were intended.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 171-179.] 3. SAME-ACTS OF SUPERINTENDENT.
The act of an engineer in placing a ladder against the boiler of an engine before directing plaintiff, a fireman, to ascend the same to shut off the steam, was a mere act of assistance, and not an act of superintendence, relieving plaintiff from inspecting the security of the ladder before attempting to ascend it.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 456-470.]
Where a railroad engineer placed a ladder against the boiler of an engine and directed plaintiff, a fireman, to "go up there and shut off the steam," such statement did not relieve plaintiff from the duty of exercising care for his own safety in determining whether the ladder was safely placed before attempting to ascend it.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 618-651, 778-788.]
Exceptions from Superior Court, Suffolk County; L. Le B. Holmes, Judge.
Action by one McDonnell against the New York, New Haven & Hartford Railroad. A verdict was directed for defendant, and plaintiff brings exceptions. Overruled.
Tort for personal injuries to plaintiff, a fireman in the employ of defendant, who was injured by the fall of a ladder, which he alleged he was ordered to use by one Dutton, who it was also alleged was a superintendent in defendant's employ.
James E. Cotter, Conrad Reno, and Jos. P. Fagan, for plaintiff. Choate, Hall & Stewart and Joseph Wentworth, for defendant.
MORTON, J. We assume in favor of the plaintiff, that the ladder was a part of the ways, works and machinery of the boiler room, and also, though with much more doubt, that Dutton was a person whose sole or principal duty was that of superintendence. He had charge of the engines and as engineer had the direction and control of his assistants and of the firemen, of whom the plaintiff was one. He started and stopped the engines, saw to the cleaning of them and the filling of the oil cups and the packing of the engines and did other manual labor as required. He had no power to hire or discharge his assistants or the firemen, and it would seem that his position was that of a superior servant performing manual labor as required in the proper discharge of his duties, and exercising such direction and control over his assistants and the firemen as was necessary to secure efficient service on their part, rather than that of one whose sole or principal duty was that of superintendence. But however that may be, we think that there was no evidence of a defect in the ladder or of negligence on the part of Dutton. The only thing in respect to which it is contended that the ladder was defective is the V-shaped iron, on the bottom. There is nothing to show that this was not a usual and proper mode of construction adopted to prevent the ladder from breaking and wearing, or that the ladder as thus made was unsafe in the hands of a person exercising ordinary care. The fact that the ladder slipped, and had done so once before, was as consistent, to say the least, with a want of due care on the part of the plaintiff and the other persons using it as with a defect in the construction. The Vshaped irons would seem to have rendered the ladder more secure instead of less if the
person using it exercised proper care. It cannot be said as matter of law, that the defendant was bound to furnish a stationary ladder or one with hooks upon it, and that it could be found guilty of negligence for not doing so. It was not bound to furnish the best possible appliances but only to exercise reasonable care in seeing that those which it furnished were safe and proper for the use for which they were intended. We see no evidence of negligence on its part in the performance of this duty. See Nealand v. L. & B. R. R., 173 Mass. 42, 53 N. E. 137; Regan v. Donovan, 159 Mass. 1, 33 N. E. 702; Wood v. Tileston Co., 182 Mass. 449, 65 N. E. 810. As to Dutton, all that he did was to place the ladder against the boiler and tell the plaintiff to go up and shut off the steam. The position in which the ladder stood was perfectly obvious to the plaintiff and he was at liberty to change it if he saw fit to. Dutton's act in placing the ladder against the boiler cannot fairly be regarded as anything more than a slight act of assistance to the plaintiff in doing that which Dutton had directed him to do. It cannot properly be regarded as an act of superintendence or as relieving the plaintiff from himself looking to the placing of the ladder before he attempted to ascend it. Nor can the direction, "Go up the ladder and shut off that steam up there, that valve," and tapping him on the shoulder and saying "Go ahead Mac" be regarded as excusing the plaintiff from such attention to his own safety. Gouin v. Wampanoag Mills, 172 Mass. 222, 51 N. E. 1078; Ruchinsky v. French, 168 Mass. 68, 46 N. E. 417.
In a suit in equity, it was proper for the court to hear a motion for the recommittal of a master's report at the same time that a motion for the confirmation of the report was heard. 2. APPEAL-MASTER'S FINDINGS-REVIEWREPORT OF EVIDENCE.
Where the evidence is not reported, the master's findings as to matters of fact cannot be reviewed on appeal.
3. PLEDGES-RIGHTS OF PLEDGEE.
The holder of a note secured by collateral is entitled to pledge the note and the collateral for his own debt.
[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Pledges, §§ 14-16.]
4. SAME-ENFORCEMENT OF PLEdge.
Where the holder of a note secured by collateral pledge the same for his own debt, the pledgee was entitled to collect the pledge note, either by a suit thereon or by a sale of the collateral, or both.
[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Pledges, §§ 129-132.]
5. PARTNERSHIP-DISSOLUTION-ACCOUNTING. A partner's right to an accounting and settlement accrues on the dissolution of the firm. [Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 742-745.]
6. SAME-SETTLEMENT OF LOSSES.
Where, on dissolution of a partnership of H. and F., H. transferred all his interest in the firm to F., and on a submission an award was made which covered all matters between the partners growing out of a certain insurance agency business, as distinguished from loans, advances, and payments which F. had made to and on behalf of H., his right, if ary, to recover from F. on account of losses sustained in such business, was conclusively disposed of.
[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 719-721.]
Appeal from Superior Court, Suffolk County.
Bill by John H. Eddy, as administrator, etc., against George O. Fogg and others. From a decree in favor of defendants, and from an order overruling complainant's motion that the master be ordered to report certain portions of the evidence, and that the report be recommitted to the master with directions to report on certain matters specified in the motion for recommittal, complainant appeals. Affirmed.
W. N. Buffum and Irving L. Rich, for appellant. Frederic H. Chase and Leo. A. Rogers, for respondent Fogg.
MORTON, J. This is a bill for an accounting in respect to various transactions between the plaintiff's intestate and the defendant Fogg. The other defendants are only stakeholders. The case was sent to a master under the usual rule to hear the parties and report his findings with such facts and questions of law as either party might request. The plaintiff filed exceptions to the master's report. A final decree was entered in the defendant Fogg's favor in which the plaintiff's exceptions were overruled and the report was confirmed. The plaintiff appealed from this decree. He also appealed from the overruling of motions made by him after the report was filed, that the master be ordered to report certain portions of the evidence, and that the report be recommitted to the master with directions to report upon certain matters specified in the motion for recommittal.
If the motions thus made and overruled did not relate to matters entirely within the discretion of the judges who heard them there is, nevertheless, nothing to show that the motions were wrongly overruled as matter of law. Moore v. Dick, 187 Mass. 207, 72 N. E. 967; Bakshian v. Hassanoff, 186 Mass. 255, 71 N. E. 555; Henderson v. Foster, 182 Mass. 447, 65 N. E. 810; Silva v. Turner, 166 Mass. 407, 44 N. E. 532; Bowers v. Cutler, 165 Mass. 441, 43 N. E. 188.
The plaintiff was apparently content to go to a hearing before the master under the rule as it was issued. And it was not till after the hearings before the master, which must have been somewhat protracted, were con
cluded, and the master had submitted his draft report that any request or suggestion appears to have been made by the plaintiff that the testimony or any part of it should be reported. The report is long and elaborate and the judges who passed upon the motions may well have been of opinion after hearing all that the plaintiff had to say that justice did not require that the motions should be granted.
Neither do we see anything erroneous in the action of the court in hearing the motions for recommittal and a report of the evidence at the same time with the motion for the confirmation of the master's report. The order in which the business before it should be dealt with, was entirely in the discretion of the court.
This brings us to the exceptions to the report. The sixth exception has been waived. The remaining exceptions relate to the Central Bank note so called, to the alleged losses of the C. W. Holden Insurance Agency in which Holden and Fogg were equal partners, one-half of which it is contended should have been allowed the Holden estate, and to a quarter interest in Holden, Eddy & Co. the value of which the plaintiff contends should have been allowed by the master to Holden's estate.
The evidence not having been reported the master's findings in regard to matters of fact cannot be revised, and the only question before us is whether there is anything in the facts found by the master which is inconsistent with or requires a conclusion different from that expressed in the decree. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N. E. 27; O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700.
1. The Central Bank note matter was briefly as follows: The defendant Fogg gave to the Central Bank his note for $7,500 and, as collateral security therefor, a note for $5,000 given to him by Eddy, and a note for $2.510 given to him by Holden which Fogg indorsed waiving demand and notice, and for the payment of which, as Fogg notified the bank and as the master has found, he held collateral security from Holden. The bank passed into the hands of a receiver who sued both Fogg and Holden on these notes. In the action against Fogg there was a finding in favor of the plaintiff for $1,417.16. Holden was defaulted in the action against him, and execution issued for $2,936.27 and costs. The plaintiff contends that Fogg had no right to hold the collateral, which he had received from Holden, as security for the $2,510 note aforesaid, and that he had no right to pledge the note with the collateral to the bank. But the master has expressly found that Fogg held the collateral as security for this note, and that he had a right to pledge the note and collateral to the bank, and that he continued to hold the collateral as security for the payment of the note and judgment. We see
nothing to show that there was any error in these findings and rulings. It is clear that Fogg could pledge Holden's note as security for his own note and that the security given for Holden's note passed with it into the pledgee's hands, and that the pledgee could collect the Holden note by suit thereon or sale of the collateral or both. Paine v. Furnas, 117 Mass. 290; Potter v. Thompson, 10 R. I. 1; 1 Daniel on Negotiable Instruments (3d Ed.) §§ 833, 834; 1 Ames, Cases on Bills & Notes, 324, note. The decree fully protects Holden and his estate in respect to the $2,510 note and the judgment and execution obtained by the receiver thereon.
2. As to one-half of the losses of the C. W. Holden Insurance Agency, which, it is contended by the plaintiff, should be allowed by the defendant, the master finds that if there was any such right of recovery it accrued July 1, 1897, and is therefore barred by the statute of limitation. We think that the master was right and we agree with him not only in regard to the statute of limitations but also in his construction of the partnership agreement. The agreement was entered into May 10, 1897, and the partnership was dissolved by mutual consent June 21, 1897, and Holden transferred all his interest in the firm to Fogg. Holden's right to an accounting and settlement accrued upon the dissolution of the firm. Farnam v. Brooks, 9 Pick. 212; Johnson v. Ames, 11 Pick. 173; Currier v. Studley, 159 Mass. 17, 35 N. E. 709; St. Paul's Church v. Attorney General, 164 Mass. 188, 41 N. E. 231. There was nothing in the relations between him and Fogg to postpone it either at law or in equity. Moreover the master finds, in considering another item, that on or about May 23, 1904, Fogg and Holden had an accounting concerning losses of the business prior to July 1, 1897, in which it was agreed by Holden and Fogg that there was due from the former to the latter $1,063.35 on account of such losses. This would seem to be inconsistent with the claim now made by the administrator. Still further, the master finds that a submission which was entered into between Holden and Fogg in November, 1904, and the award thereon "covered all matters between the parties growing out of the agency business as such (i. e. the firm business) as distinguished from loans, advances and payments which the said Fogg made to and for the said Holden." Not only, therefore, by reason of the operation of the statute of limitations, but also by reason of the findings of the master in regard to these matters is the claim of Holden in regard to sums due him from Fogg on account of losses in the business conclusively disposed of in favor of Fogg.
3. The claim of the plaintiff to a quarter interest in Holden, Eddy & Co. which he contends that the master should have allowed him, relates to a quarter interest in that concern which was sold by Fogg to Eddy.
The plaintiff contends that it really be longed to Holden, and that it was held by Fogg in trust or as collateral for Holden's indebtedness to him. The master, has however found that it belonged to Fogg absolutely, and that he did not hold it in trust or as collateral, and there is nothing to control these findings.
The result is that the decree must be affirmed.
(192 Mass. 547)
MANNING et al v. MULREY et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1906.)
An administrator, while guardian of one of the minor heirs of the intestate, rendered the estate insolvent, and obtained an order for the sale of real estate. The real estate was inventoried at $2,700, but was sold by the administrator for $500 to a person who shortly thereafter conveyed the same to the administrator for a recited consideration of the same amount. No money was in fact paid, either by the administrator or by the purchaser. The administrator charged himself in his account with $500 as the proceeds of the sale, and was allowed payments and charges to the amount of $1.245.44, leaving a balance due him of $700.44. Held, that such facts were sufficient to warrant a finding that the sale of the real estate was a fraud on the rights of such minor heir. 2. EQUITY-ACTUAL FRAUD-LACHES.
In a suit to set aside a conveyance of land for actual fraud, mere delay, especially if unaccompanied by any change in the situation of the parties in respect to the matter in which relief is sought, will not deprive the defrauded party of the right to relief, so long as he remains ignorant of the fraud and has not such knowledge of the facts as ought, in the exercise of reasonable prudence, to put him on inquiry.
[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 200-214.]
3. CANCELLATION OF INSTRUMENTS - FRAUDLACHES--EVIDENCE.
In a suit by an heir to set aside a conveyance of land to the administrator, she testified that she did not know that the land bad been conveyed to the administrator until after his death, and that she supposed he had charge of it as administrator of the intestate's estate. Nothing occurred to put her on inquiry, and she had nothing more than constructive notice of the account which the administrator filed, showing a sale of the property. Held, that such facts justified a finding that complainant was not guilty of laches.
[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, §§ 4953, 102.]
4. EQUITY PRACTICE - COMMISSIONER-AP
The allowance or disallowance of a motion, after a second hearing, for the appointment of a commissioner to report the evidence taken at such hearing, was within the discretion of the trial judge.
Appeal from Superior Court, Suffolk Coun
Bil by Mary A. Manning and another against Thaddeus F. Mulrey and others. From a decree in favor of complainants, defendants appeal. Affirmed.
P. H. Kelly, for appellants. Cronin & Cronin, for appellees.
MORTON, J. One Michael Mulrey of Boston died intestate, unmarried and without issue in July, 1876, seised in fee of certain real estate situate in that part of Boston known as West Roxbury, and leaving, as his heirs at law, the complainant Carberry the only child of a deceased brother James, the complainant Manning and two brothers John Mulrey and Michael S. Mulrey children of a deceased brother Patrick, and a brother Timothy D. Mulrey the father of the re spondents. The brother Timothy was duly appointed administrator. He rendered the estate insolvent and in November, 1879, was duly licensed to sell the real estate for payment of debts and sold and conveyed the same as such administrator, by previous arrangement, to one Dowd for the nominal sum of $500. Dowd as part of the same transaction conveyed the property to said Timothy in his own right also for the nominal sum of $500. No money passed from Dowd to the administrator or from the latter to the former. At least there was no evidénce warranting such finding. Timothy D. Mulrey died in June, 1901, leaving a will by which he devised the real estate in question to the respondents. The plaintiffs are heirs at law of Michael and this bill has been brought to set aside, so far as they are concerned, the conveyances from the administrator to Dowd and from Dowd to the said Timothy, and to recover the conplainant's shares of the real estate thus conveyed. There was a demurrer which was overruled without prejudice to the right of the defendants to raise the same questions at the trial upon the merits. The respondents appealed, but have not argued the demurrer; being apparently content to argue the same question on the merits, which they could properly do. We therefore treat this demurrer as waived. The bill was dismissed as to the complainant Manning, and a decree was entered in favor of the complainant Carberry from which also the respondents appealed. No appeal was taken from the decree dismissing the bill as to the complainant Manning. Since the bill was brought the respondent Thaddeus F. Mulrey has died intestate, unmarried, and without issue leaving one John R. Mulrey, a brother, as one of his heirs at law. The said John R. Mulrey was admitted on his petition as a party defendant, and after a hearing, which was the second hearing in the case, the bill was dismissed as to him. No appeal was taken from this decree. When the said Timothy was appointed administrator, he was also guardian of the complainant Carberry. It did not appear that he ever rendered any account as such guardian. He rendered a first and final account as administrator which after due notice was allowed. In this account he charged himself with $500 as the proceeds of the real estate. It was
inventoried at $2.700. And he was allowed payments and charges to the amount of $1,245.44 leaving a balance due him of $700.44. The complainant Carberry testified, amongst other things, that she never knew that the land was Timothy D. Mulrey's till after his death, that she always supposed that it belonged to her uncle Michael's estate, and that her uncle Timothy had charge of it as administrator and that her uncle Timothy never said anything to her about it nor she to him. All of the evidence was taken by a commissioner and is reported.
Without undertaking to review the evidence further we are of opinion that the presiding justice could have found that the sale by the administrator to himeslf was in fraud of the complainant Carberry's rights, and was therefore void. That, for aught that appears, is what he did find. It cannot be said that such a finding was clearly erroneous. Regesters' Sons Co. v. Reed et al., 185 Mass. 226, 70 N. E. 480; Dickinson v. Todd, 172 Mass. 183, 51 N. E. 976. The respondents, assuming that the $500 with which the administrator charged himself is to be treated as proceeds of the sale, contend that the decree was erroneous in failing to allow them therefor, and also in failing to allow them for sums expended by the administrator in the payment of taxes and otherwise in the preservation of the estate. But the case is not that simpliciter of a purchase by a trustee of property belonging to his cestuis. There was, or could have been found to be actual fraud on the part of the administrator. And neither his estate nor the respondents who stand in his shoes, can be permitted to charge the complainant with sums paid and expenditures made in furtherance of his fraud.
Neither do we see how the complainant Carberry can be held as matter of law as the case stands to have been guilty of laches. A case of actual fraud stands differently from a case of a conveyance by a trustee to himself simpliciter. In a case of actual fraud mere delay, especially if unaccompanied by any change in the situation of the parties in respect of the matter in which relief is sought, will not deprive the defrauded party of the right to relief, so long as he remains ignorant of the fraud and has not such knowledge of facts as ought in the exercise of reasonable prudence to put him on
inquiry, Potter v. Kimball, 186 Mass. 120, 71 N. E. 308; Dunning v. Bates et al., 186 Mass. 123, 71 N. E. 309; Abbott v. Downs, 168 Mass. 481, 47 N. E. 94; Meader v. Norton, 11 Wall. (U. S.) 442, 20 L. Ed. 184; Vane v. Vane, L. R.  8 Ch. App. 383; Moxon v. Payne, Id. 881; 1 Perry on Trusts (4th Ed.) § 230; 18 Am. & Eng. Ency. of Law (2d Ed.) 115. In the present case the complainant Carberry testified that she did not know that the land had been conveyed to the administrator till after his death and that she supposed he had charge of it as administrator of her uncle Michael's estate. According to her testimony nothing occurred to put her upon inquiry. It does not appear that she had anything more than constructive notice of the account that was filed and allowed. It could also have been found that her relations with the administrator were such as to lead her to repose confidence in him and to refrain from inquiry. On the whole, though the matter is not free from doubt, we do not see that it can be said that the presiding justice erred as matter of law in finding, as he must have found, that the plaintiff was not guilty of laches. The facts in Lindsey v. Fabens, 189 Mass. 329, 75 N. E. 623, and in Sawyer v. Cook, 188 Mass. 163, 74 N. E. 356, differed materially from those in the case before us.
The respondents Mary, Elizabeth and Catherine further contend that the decree was erroneous in requiring them to convey to the complainant Carberry an undivided third. They base this contention on the fact that an undivided twelfth of the estate has passed by the death of Thaddeus to John and that, after a hearing which was granted to John on his petition after the case had been heard as to the other respondents, the bill was dismissed as to him. The grounds on which this action was taken do not appear, and we do not therefore see how it can be said that the decree was erroneous in ordering the other respondents to convey a third to the complainant Carberry.
The allowance or disallowance of the motion made by the respondents after the second hearing for the appointment of a commissioner to report the evidence taken at such hearing was clearly a matter within the discretion of the presiding justice. See Silva v. Turner, 166 Mass. 407, 44 N. E. 532. Decree affirmed.