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important particulars which could have caused the break complained of.

The defendant stoutly contends that the employment of Allen to inspect the construction and his approval of it as a competent expert of such matters exonerates it from culpability. The defendant undertook, through its own agents, to design, manufacture and install its steam main and boiler connections. The castings for the headings, so far as appears, were the only materials purchased of other manufacturers. The defendant itself thus assumed to perform its general obligation of using proper care to provide safe machinery, appliances and apparatus for its servants to work with. It cannot relieve itself from this responsibility by showing that it employed competent engineers to design and set up the appliances in question, or to inspect them after being in place. This is weighty evidence as tending to show that it took all the precaution which ordinary prudence required. Shrewsbury

Shrewsbury V. Smith, 12 Cush. 177. But the defendant must still bear its original responsibility of using due care to provide safe appliances. If there is any neglect on the part of the ' designing engineer, the principal is responsible for it. Moynihan v. Hills Co. 146 Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348; Hooe v. Boston & Northern St. Ry. Co., 187 Mass. 67, 27 N. E. 341.

If it be conceded for the moment that for the use of cast iron as a material for the steam main the defendant might not be liable because it was a material in common, though not exclusive, use, there is nevertheless evidence from which the jury might have inferred that the accident was occasioned by failure to provide a sufficient number of drip-cocks or drains along the steam main, or by the anchorage of the main in such a way as to hamper its expansion and perhaps by other causes. The weight to be given to the evidence is not now to be determined. It is only for us to say whether there was sufficient evidence to support a verdict in favor of the plaintiffs upon any of the counts. The plaintiffs were not required to show the particular cause of the accident. It was enough to proffer evi. dence of defects in the construction of the steam main, which, coupled with its breaking, might warrant the jury in inferring that the accident was due to the negligence of the defendant. Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 62 N. E. 379.

Two questions of evidence are raised by the defendant. One Réaves, duly qualified as having special knowledge respecting the subject-matter, testified that the very best form and quality of cast iron was unsuitable for a pipe of this character, in his opinion, because of its brittleness under the temperature to which it was likely to be subjected. One question at issue was whether the material selected by the defend

ant for the pipe should not have been wrought iron instead of cast iron.

It was the duty of the defendant to furnish reasonably safe and suitable appliances, so that they would not be likely to break and injure its employés. Littlefield v. Edward P. Allis Co., 177 Mass. 151, 58 N. E. 692. It was competent for the plaintiffs to proffer the opinion of an experienced witness as to whether there were unusual risks in the use of cast iron in the particular place where it was installed by the defendant, and whether the accident which occurred resulted from such use. Chalmers v. Whitmore Mfg. Co., 164 Mass. 532, 42 N. E. 98; Arnold v. Harrington Cutlery Co., 189 Mass. 547, 76 N. E. 149. The testimony objected to was directed toward this end.

The defendant asked one Smith, its master mechanic, “Is it customary, in well conducted concerns with which you are familiar, to adopt a hydraulic test or a hammer test, on a steam line of substantially this description after it has been installed and in operation ?" This question was excluded. The ground of the exclusion does not appear, but it may well have been that the court decided that the witness' experience with other plants was not wide enough to make his testimony of any value. Moreover, the materiality of the inquiry does not clearly appear and at best the nature of the information sought was somewhat remote from the issue to be passed upon. The ruling must be sustained as being within the discretion of the presiding justice. Dolan v. Boott Cotton Mills, 185 Mass. 576, 70 N. E. 1025.

Exceptions overruled.

(193 Mass. 85) JACOBSON v. FAVOR.

(Supreme Judicial Court of Massachusetts.


An employer of painters left three of them to paint a house, using as a staging an extension ladder, made of spruce, with side pieces approximately 2 by 3. The three painters, whose aggregate weight was 490 pounds, went upon the ladder extended to a length of at least 26 feet. Held, in an action by one of the painters, of 20 years' experience, who was conversant with the use of extension ladders, and who was injured by the breaking of the ladder, that the employer was not negligent in failing to warn the painters not to extend the ladder, if they were all to use it as a staging.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $$ 310, 31642.) 2. SANE-EVIDENCE-SUFFICIENCY.

Where three painters employed by defendant went upon an extension ladder being used by them as a staging, and it broke injuring one of them, in an action for the injuries, his testimony that "we had used this ladder painting on other jobs in this same way" did not warrant a finding that the same men had used the ladder extended, and that the fact was known to defendant,


Exceptions from Superior Court, Worcester The plaintiff has asked us to hold that County; Edward P. Pierce, Judge.

he had a right to go to the jury because in Action by Jacob Jacobson against Milton the course of his testimony he said "We had M. Favor. From a judgment in favor of used this ladder painting on other jobs in plaintiff, defendant brings exceptions. Ex- this same way.His argument is that ceptions sustained.

froin this isolated statement the jury could

have inferred that the same three men had S. A. Fuller and C. H. Blood, for plaintiff.

used the ladder extended and that this was Herbert Parker, Chas. C. Milton, and Geo. A. Gaskill, for defendant.

known by the defendant. We are of opin

ion that taken as an isolated piece of tesLORING, J. We do not find it necessary timony the jury would not be warranted to consider whether one of the defenses set in drawing those inferences. Moreover, as up by the defendant is made out as matter the evidence went this statement is shown of law, namely, that a stronger ladder or by the context to refer to the use of the ladders were furnished by him and were

ladder as a staging, not to its use as a staaccessible for use by the plaintiff, for we are ging when drawn out, with three men upof opinion that if the ladder in question on it weighing on an average 160 pounds had been the only ladder furnished there apiece. If the plaintiff intended to go to is no evidence that the defendant was neg- the jury on this theory he should have de ligent.

veloped it more in evidence than he did by It is not pretended that the ladder made

eliciting this statement in the connection an insecure staging when used as it was

in which it was given. used while O'Brien was present, that is to

Exceptions sustained. say, without its being extended at all. We say while O'Brien was present for we assume that he might have been found to be a

(193 Mass. 6) superintendent so far as liability on that MCLEOD v. SOUTH DEERFIELD WATER ground under the statute goes, and to be

SUPPLY DISTRICT. SHATTUCK V. the person to whom the defendant left the

SAME. KINGSLEY V. SAME. matter of staging so far as liability at com- (Supreme Judicial Court of Massachusetts. mon law under the statute as to safe ap

Franklin. Oct. 16, 1906.) pliances and safe ways, works and ma- WATERS AND WATER COURSES--APPROPRIAchinery are concerned.

TION OF WATER FOR MUNICIPAL PURPOSES What caused the accident here complain


Chapter 486, p. 394, Acts 1902, authorizing ed of was drawing the ladder out to a length

the South Deerfield water supply

supply district of 26 feet at least, and putting on it three to take and hold the waters of a portion of painters, whose aggregate weight was as

Roaring brook and its tributaries, construed, sumed to have been 490 pounds, in order

and held to authorize the taking of all the wa

ters of the brook, "except that part which lies to paint the side of the house in one "drop" west of and above the main road leading from in place of keeping the ladder doubled up Conway village to West Whately," including was when O'Brieni was present, and

the portion lying within the town of Conway, as

well as that within the towns of Deerfield and painting the side of the house in two “drops.

Whately and that, having in fact taken such The plaintiff, to use his own words, was waters, the taking was under the statute, and a painter of 20 years' experience, who had

damages were properly assessed thereunder to painted on stages all that time, had con

persons injured thereby. stantly used stages of all kinds on the out- Exceptions from Superior Court, Franklin side of buildings, and had used extension County; Edwd. P. Pierce, Judge. ladders “lots of times.” The ladder was

Petitions by Hugh McLeod, Charles S. of spruce, with side pieces approximately Shattuck, and Seth W. Kingsley against the 2 by 3.

South Deerfield water supply district for The case therefore comes to this: Was it

the assessment of damages for the taking of negligence on the defendant's part to leave

water from a stream. From such assessthe plaintiff and his fellow workmen to

ments, respondent brings exceptions. Exceppaint the house with this ladder as a staging

tions overruled. without telling them not to extend the lad

Dana Malone and A. E. Addis, for petitionder if all three of them, with an average ers. Tredk. L. Greene and Wm. A. Davenweight of over 160 pounds each were to use port, for respondent. it as a staging? That it would be dangerous to do so is in our opinion a fact within SHELDON, J. By the second section of the knowledge of a painter of 20 years' ex- chapter 486, p. 394, St. 1902, the respondent perience, who was conversant with the use was authorized to "take by purchase or otherof extension ladders as stagings.

wise and hold the waters of Roaring brook The case belongs to the same class as and of any or all of its tributaries in the Arnold v. Eastman Freight Car Co., 176 towns or Deerfield and Whately, except that Mass. 135, 57 N. E. 209. See, also, Adasken part of said brook and its tributaries which v. Gilbert, 165 Mass. 443, 43 N. E. 199; Mc- lies west of and above the main road leading Kay v. Hand, 168 Mass. 270, 47 N. E. 104. from Conway village to West Whately; and

as it


the waters of any springs or other sources tion effect is given to all the words of the on the watershed of said brook, with the statute; and we agree with the respondent water rights connected therewith, except that that this should be done. part which lies west of and above the main Accordingly the respondent's request for a road leading from Conway village to West ruling in accordance with its contention alWhately.” The respondent has made a tak- ready stated was rightly refused, and the

. ing under this statute, and in its certificate instruction given as to this question was corfiled under section 3 of the statute has de- rect. scribed the waters taken as "all the waters The other exceptions taken at the trial of Roaring brook and its tributaries” above were not argued, and we treat them as a dam and reservoir constructed by the re- waived. spondent in the town of Whately, "and ex- Exceptions overruled. tending from that point up said brook to the west side of the main road” aforesaid. It now contends, as it asked the judge at the

(193 Mass. 11) trial, to rule, that under the statute quoted

MILLS V. SMITH. it had the right to take only that part of the

(Supreme Judicial Court of Massachusetts. waters of Roaring brook and its tributaries

Hampshire. Oct. 16, 1906.) which lies in the towns of Deerfield and Whately, and that no damage can be assessed


NEY--TERMINATION-DEATII OF DONOR. in these proceedings for the taking of any A power of attorney, when the power is other water. But if this construction were not coupled with an interest, is terminated by adopted, it would lead to the absurd conclu

the death of the donor. sion that while the respondent's right to take

[Ed. Note.-For cases in point, see vol. 40, the waters of Roaring brook and its tribu

Cent. Dig. Principal and Agent, $8 67-71.] taries was thus limited, yet it was given the

2. CONTRACTS-MUTUALITY. express right to take all the sources of water

A contract under seal, whereby the second

party agreed to take entire charge of the lands and water rights on the whole watershed of of the first party, giving such business as much the brook except the part lying west of and

time as might be necessary, and was to receive above the main road mentioned, including of

half of the proceeds of all the sales, was not,

in so far as it was executory, unenforceable for course that part of such watershed which is lack of mutuality. situated in the town of Conway as well as in [Ed. Note.-For cases in point, see vol. 11, Deerfield and Whately; that is, the respond

Cent. Dig. Contracts, $8 21-40.] ent would not have the right to take any of 3. PERPETUITIES. the waters of the brook in Conway, but could

A contract whereby the second party was take such waters in that part of Conway

to take entire charge of lands of the first party,

and the second party's judgment as to disposiwhich lies west of the main road mentioned

tion of the lands was to be binding, which was while they were merely on the watershed of to be carried out by the executors of the first the brook and before they actually had en

party, was not violative of the law against tered the channel of the brook and become

perpetuities. a part of its waters. Such a construction


INCONSISTENT POSITION. as this could not be adopted unless impera

Appellant cannot complain on appeal of tively required by the words of the statute; a construction of the evidence adopted at his and in this case it is made impossible by the

own request. fact that in the residue of the section the au

[Ed. Note.-For cases in point, see vol. 3,

Cent. Dig. Appeal and Error, $ 3591.] thority given to the respondent to take the lands and easements and construct the dams


FERENCE WITII SETTLEMENT OF ESTATE. and other structures and lay and maintain A contract whereby the second party agreed the aqueducts necessary to provide and main- to take entire charge of the lands of the first tain complete and effective waterworks is

party, and was to have the sole right to sell the limited to the towns of Deerfield and Whately.

lands, the second party's judgment as to the

disposition of the lands, etc., to be conclusive, The right given in terms to make takings in and which was to be binding on the executors the watershed ought not to be taken away or of the first party, was not invalid as unreamade nugatory by a merely verbal construc

sonably and unlawfully interfering with the tion. We are of opinion accordingly that by

settlement of the first party's estate.

6. EXECUTORS AND ADMINISTRATORS CONthe proper construction of this statute the re

TRACT OF TESTATOR-AGREEMENT TO MAKE spondent was authorized to take, as it has CODICIL-BREACII-FAILURE TO PERFORM. taken, all the waters of Roaring brook and

By the terms of a written contract, the

second party was to have entire charge of the its tributaries except that part thereof lying

lands of the first party, and the sole right to west of and above the main road already men. sell them, and it was agreed that it should be tioned, and all the sources and water rights binding on the first party's executors, and that on the watershed of said brook, with the

he should make a codicil to his will to such ef.

fect. Held, that the neglect of testator to make same exception; but that the actual taking such a codicil, and the assertion by the first of the water, the construction of such dams, party's executor and beneficiaries under the reservoirs, and other works as might be nec

will of the right to have the estate administered,

irrespective of the contract, amounted to a essary, should be made only in the towns

breach thereof, subjecting the executors to an of Deerfield and Whately. By this construc- action for damages.


promises and agreements made by the party CATION. Owing to the fact that the management

of the second part hereinafter contained., of C.'s business was in the hands of B., the

and in further consideration of the sum of title to many of C.'s lands stood in the name one dollar in hand paid by the said Mills of B. To protect C., B. subsequently deeded

to the said Cook, has agreed and hereby to him such real estate, and later, B. becoming insolvent, a judgment was recovered against

does agree with the said Mills as follows, him, and suits brought on such judgment to to wit: set aside the conveyance from B. to C. Plain- "The said Cook authorizes and directs the tiff subsequently contracted with C. to take entire charge of his lands, on an understanding

said Mills to take entire charge of all the that plaintiff was to have half of the proceeds property interests of the said Cook in the arising on a sale of any of the lands, and, act- state of Minnesota, of every kind and naing under the contract, plaintiff effected a set

ture, whether the same be in the shape of tlement of the suits, whereby he secured a release of the claim on the lands and an assign

real property or in the shape of liens or ment of the judgment to C., to obtain which he claims upon real property, of any kind or conveyed to the holder of the judgment a part nature, and hereby authorizes the said Mills of Ci's land. At that time plaintiff was administrator of Bi's estate and he supposed there

to sell and dispose of any and all his interwas but little property in the estate of B.; but

ests in Minnesota at such prices and upon it subsequently turned out that the judgment such terms as may seem best to him, the was worth a considerable amount as a claim

said Mills, and does hereby authorize the against B.'s estate. Held, that such transaction having been ratified by the executor of C.,

said Mills to make any disposition of any or and any fraud having been res inter alios, the all of said Minnesota property belonging to transaction did not preclude plaintiff, in an

said Cook, as to him may seem best, either action against C.'s executor for breach of the

to sell the same for cash or to exchange contract between plaintiff and C., from having the value of the judgment included as a part

the same for other property, or do anything of the proceeds of C.'s property.

in the premises that may seem wise and

prudent to the said Mills. Exceptions from Superior Court, of Hamp

"It is further understood and agreed that, shire County; Wm. B. Stevens, Judge.

out of the proceeds of the said property so Action by Jerome D. Mills against William

to be sold by the said Mills, there shall H. Smith, as executor of the will of Samuel Mills Cook. Judgment in favor of plaintiff,

first be paid any and all expenses and disand defendant brings exceptions.

bursements incurred by the said Mills in Excep

the transaction of the said business. Aftions overruled.

ter the payment of the said costs and exHarlan P. Roberts and E. L. Shaw (S. W.

penses, the net proceeds obtained from the Packard, of counsel), for plaintiff. N. P.

said property are to be divided equally beAvery and Saml. C. Darling, for defendant.

tween the parties to this agreement. The

said Mills agrees to accept his half of the KNOWLTON, C. J. The plaintiff's claim said proceeds in full settlement of all his rests upon a contract under seal, entered claims for compensation for service renderinto between him and the defendant's testa- ed under this agreement. The said Mills tor. The recovery now sought is of dam- also promises and agrees to give to the ages for a breach of contract. In making transaction of the business hereinbefore set the writing the parties first recited that forth, as much of his time as to him may Samuel M. Cook, the defendant's testator, seem necessary in order to properly manthen a resident of Holyoke, Mass., was the age the said business, and use his best owner of a large amount of real estate and judgment in the disposition of the said some personal property in the state of property, and in the settlement of all matMinnesota; that there was litigation pend- ters now in dispute in relation to the same, ing in regard to the title to some of the and in the compromise and settlement of real estate; that there were unpaid taxes all questions that may hereafter arise in upon much of it; that Cook was unwilling regard to such property. to spend any more money in caring for his “It is further understood that the said property interests in Minnesota and did not Mills is to look to the said property for his wish to be troubled about deciding questions compensation for all services rendered unof policy in the management of his interests der this contract, and for all expenses inin that state; that he had confidence in curred by him in the transaction of the the judgment and business ability of the said business. plaintiff and was desirious of inducing him "It is further understood and agreed that to take charge of his business affairs in the the said Cook relies entirely upon the judg. state of Minnesota, and that he had al- ment of the said Mills in the handling of ready executed a general power of attor- said property, and the said Mills is not to ney authorizing him to make conveyances be held accountable to the said Cook or to and to do other business for the said Cook any one else in his behalf, for errors in in that state. The contract, which bore judgment in the transaction of said business, date December 29, 1900, continued as fol. it being understood that the decision of the lows:

said Mills as to the advisabilty of any par“Witnesseth, that the said party of the ticular transaction in the premises shall be absolutely final and binding upon the said Cook.

"It is further understood and agreed that, in the event of the decease of the said Cook before all of the property interests in Minnesota have been disposed of under this agreement, then and in that case the executors of the will of the said Cook shall be

plete his contract, although he was ready and willing to complete it. At the time of Cook's death the plaintiff had done the greater part of the work required to be done in clearing up the titles to the several parcels of real estate. He had sold lands and personal property, and had expended considerable sums in litigation, and in other ways

required to carry out the provisions of this contemplated by the contract, and had re

ho of a sealed instrument bearing date Decem

contract and co-operate with the said Mills mitted to Cook $1,100 in money. There rein the disposition of the property covered mained to be sold, under the contract, lands by this contract, and execute any and all to which there was a clear title, worth in papers, of every kind and nature, necessary excess of taxes due thereon, $18,951.08, and in order to enable the said Mills to dispose other lands and interests in lands of the of the property in accordance with the terms agreed value of $1,000. Nearly $500 was of this agreement.

realized from insurance and from a small "It is further understood and agreed that piece of land sold after Cook's death. this contract is binding upon the heirs, ex- The questions argued by the defendant ecutors, administrators and assigns of the arise upon the refusal of the court to make respective parties hereto.

a large number of rulings requested by him. “In testimony whereof the said parties These relate, for the most part, to the validity have hereunto set their names and affixed of the contract. The first ruling requested by their seals the day herein first above men- the defendant was given by the court, to the tioned."

effect that the contract by which the rights of Signed and sealed, etc.

the parties are to be determined is made up The case was referred to an auditor, who a found for the plaintiff, and his report was ber 29, 1900, the quoted extract from the letthe principal part of the evidence at the ter of Cook to Mills dated January 28, 1901, trial before the justice of the superior court, and the statement in Cook's handwriting who heard the case without a jury. Cook, found with the will. The defendant cannot the defendant's testator, died December 29, now complain of a construction of the evi1901. He had signed the contract on January dence adopted at his request. Indeed, if, as 19, 1901. When it was sent to him for his he now contends, the only contract is the insignature by the plaintiff, who had execut- strument under seal, the legal effect is the ed it previously, a proposed codicil to Cook's same. will was enclosed with it, which directed It was admitted by both parties, at the his executors to carry out all the provisions | hearing before the auditor and at the arguof the contract, and to that end to execute, ment in this court, that the contract did at the plaintiff's request any and all papers not give the plaintiff a power, coupled with relating to any property owned by the an interest, such that he could dispose of testator at the time of his decease, in the the property, or enforce the contract directstate of Minnesota, tending to carry out the ly against it, after Cook's death. The plainprovisions of said contract. In a letter sent tiff's authority under the power of attorney on the day when he signed the contract, was, therefore, terminated by the death of the testator wrote to the plaintiff in part

the testator. See Hunt v. Rousmansier, 8 as follows: “Of course I leave the whole Wheat. (U. S.) 174-203, 5 L. Ed. 589; Alworth thing in your hands and to your judgment, v. Seymour, 42 Minn. 526, 44 N. W. 1030. and shall be content with the outcome. The It is contended that the contract, so far agreement you forward I will sign and as it is executory, is nonenforceable because shortly forward, and the codicil, as you

you lacking in mutuality. We see no foundation suggest, shall be annexed to the will; or for this contention. In the first place it is my executor, who is my nephew and will an instrument under seal, and it recites the scrupulously comply with any instructions I receipt of a valuable consideration by Cook may give, will in good faith carry them out."

from the plaintiff. Next it purports to give The following memorandum in Cook's hand- valuable privileges to the plaintifl'in writing was found with his will, having right to receive one-half of the proceeds of been placed there by his direction: "Hol- the property above the expenses of clearyoke, 1-28–1901. This is to certify that the ing up and establishing the title and other agreement entered into between J. D. Mills expenses and disbursements in the transacof St. Cloud, Minnesota, and myself, for the tion of the business, and it secures a valuable disposal of all my real estate in Minnesota, right to the testator in the agreement of the I wish my executor, William H. Smith, to plaintiff to give his time to the transaction carry out to the letter. S. M. Cook."

of the business, as much as to him may seem Cook died, however, without making any necessary for the proper management of it, provision by will or codicil for carrying and to use his best judgment in the disposiout the agreement after his death, and his tion of the property, and in the settlement of executor and the beneficiaries under his will all matters relating to it. By this agreement have declined to permit the plaintiff to com- he was bound to go on in good faith and

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