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 Reaves, 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. Worcester. Oct. 16, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-MASTER'S DUTY TO WARN SERVANT.

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, 3162.j 2. SAME-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.

LORING, J. We do not find it necessary to consider whether one of the defenses set up by the defendant is made out as matter of law, namely, that a stronger ladder or ladders were furnished by him and were accessible for use by the plaintiff, for we are of opinion that if the ladder in question had been the only ladder furnished there is no evidence that the defendant was negligent.

It is not pretended that the ladder made an insecure staging when used as it was used while O'Brien was present, that is to 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 superintendent so far as liability on that ground under the statute goes, and to be the person to whom the defendant left the matter of staging so far as liability at common law under the statute as to safe appliances and safe ways, works and machinery are concerned.

What caused the accident here complained of was drawing the ladder out to a length of 26 feet at least, and putting on it three painters, whose aggregate weight was assumed to have been 490 pounds, in order to paint the side of the house in one "drop" in place of keeping the ladder doubled up as it was when O'Brien was present, and painting the side of the house in two "drops."

The plaintiff has asked us to hold that he had a right to go to the jury because in the course of his testimony he said "We had used this ladder painting on other jobs in this same way." His argument is that from this isolated statement the jury could have inferred that the same three men had used the ladder extended and that this was known by the defendant. We are of opinion that taken as an isolated piece of testimony the jury would not be warranted in drawing those inferences. Moreover, as the evidence went this statement is shown by the context to refer to the use of the ladder as a staging, not to its use as a staging when drawn out, with three men upon it weighing on an average 160 pounds apiece. If the plaintiff intended to go to the jury on this theory he should have developed it more in evidence than he did by eliciting this statement in the connection in which it was given. Exceptions sustained.

(193 Mass. 6)

MCLEOD v. SOUTH DEERFIELD WATER
SUPPLY DISTRICT. SHATTUCK v.
SAME. KINGSLEY v. SAME.
(Supreme Judicial Court of Massachusetts.
Franklin. Oct. 16, 1906.)

WATERS AND WATER COURSES-APPROPRIA-
TION OF WATER FOR MUNICIPAL PURPOSES
-CONSTRUCTION OF STATUTE.

Chapter 486, p. 394, Acts 1902, authorizing the South Deerfield water supply district to take and hold the waters of a portion of Roaring brook and its tributaries, construed, and held to authorize the taking of all the waters of the brook, "except that part which lies west of and above the main road leading from Conway village to West Whately," including the portion lying within the town of Conway, as well as that within the towns of Deerfield and Whately and that, having in fact taken such waters, the taking was under the statute, and damages were properly assessed thereunder to persons injured thereby.

Exceptions from Superior Court, Franklin County; Edwd. P. Pierce, Judge.

The case therefore comes to this: Was it negligence on the defendant's part to leave the plaintiff and his fellow workmen to paint the house with this ladder as a staging without telling them not to extend the ladder if all three of them, with an average weight of over 160 pounds each were to use it as a staging? That it would be dangerous to do so is in our opinion a fact within the knowledge of a painter of 20 years' experience, who was conversant with the use of extension ladders as stagings.

The case belongs to the same class as Arnold v. Eastman Freight Car Co., 176 Mass. 135, 57 N. E. 209. See, also, Adasken v. Gilbert, 165 Mass. 443, 43 N. E. 199; McKay v. Hand, 168 Mass. 270, 47 N. E. 104.

Petitions by Hugh McLeod, Charles S.

South Deerfield water supply district for the assessment of damages for the taking of water from a stream. From such assessments, respondent brings exceptions. Exceptions overruled.

Dana Malone and A. E. Addis, for petitioners. Fredk. L. Greene and Wm. A. Davenport, for respondent.

SHELDON, J. By the second section of chapter 486, p. 394, St. 1902, the respondent was authorized to "take by purchase or otherwise and hold the waters of Roaring brook and of any or all of its tributaries in the towns or Deerfield and Whately, except that part of said brook and its tributaries which lies west of and above the main road leading from Conway village to West Whately; and

the waters of any springs or other sources on the watershed of said brook, with the water rights connected therewith, except that part which lies west of and above the main road leading from Conway village to West Whately." The respondent has made a taking under this statute, and in its certificate filed under section 3 of the statute has described the waters taken as "all the waters of Roaring brook and its tributaries" above a dam and reservoir constructed by the respondent in the town of Whately, "and extending 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 trial, to rule, that under the statute quoted it had the right to take only that part of the waters of Roaring brook and its tributaries which lies in the towns of Deerfield and Whately, and that no damage can be assessed in these proceedings for the taking of any other water. But if this construction were adopted, it would lead to the absurd conclusion that while the respondent's right to take the waters of Roaring brook and its tributaries was thus limited, yet it was given the express right to take all the sources of water and water rights on the whole watershed of the brook except the part lying west of and above the main road mentioned, including of course that part of such watershed which is situated in the town of Conway as well as in Deerfield and Whately; that is, the respondent would not have the right to take any of the waters of the brook in Conway, but could take such waters in that part of Conway which lies west of the main road mentioned while they were merely on the watershed of the brook and before they actually had entered the channel of the brook and become a part of its waters. Such a construction as this could not be adopted unless imperatively required by the words of the statute; and in this case it is made impossible by the fact that in the residue of the section the authority given to the respondent to take the lands and easements and construct the dams and other structures and lay and maintain the aqueducts necessary to provide and maintain complete and effective waterworks is limited to the towns of Deerfield and Whately. The right given in terms to make takings in the watershed ought not to be taken away or made nugatory by a merely verbal construction. We are of opinion accordingly that by the proper construction of this statute the respondent was authorized to take, as it has taken, all the waters of Roaring brook and its tributaries except that part thereof lying west of and above the main road already mentioned, and all the sources and water rights on the watershed of said brook, with the same exception; but that the actual taking of the water, the construction of such dams, reservoirs, and other works as might be necessary, should be made only in the towns of Deerfield and Whately. By this construc

(Supreme Judicial Court of Massachusetts. Hampshire. Oct. 16, 1906.)

1. PRINCIPAL AND AGENT-POWER OF ATTORNEY-TERMINATION-DEATH OF DONOR.

A power of attorney, when the power is not coupled with an interest, is terminated by the death of the donor.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 67-71.] 2. CONTRACTS-MUTUALITY.

A contract under seal, whereby the second party agreed to take entire charge of the lands of the first party, giving such business as much time as might be necessary, and was to receive half of the proceeds of all the sales, was not, in so far as it was executory, unenforceable for lack of mutuality.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 21-40.] 3. PERPETUITIES.

A contract whereby the second party was to take entire charge of lands of the first party, and the second party's judgment as to disposition of the lands was to be binding, which was to be carried out by the executors of the first party, was not violative of the law against perpetuities.

4. APPEAL-RIGHT OF REVIEW - ESTOPPELINCONSISTENT POSITION.

Appellant cannot complain on appeal of a construction of the evidence adopted at his own request.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3591.]

5. CONTRACTS-VALIDITY OF OBJECT INTERFERENCE WITH SETTLEMENT OF ESTATE.

A contract whereby the second party agreed to take entire charge of the lands of the first party, and was to have the sole right to sell the lands, the second party's judgment as to the disposition of the lands, etc., to be conclusive, and which was to be binding on the executors of the first party, was not invalid as unreasonably and unlawfully interfering with the settlement of the first party's estate.

6. EXECUTORS AND ADMINISTRATORS - CONTRACT OF TESTATOR-AGREEMENT TO MAKE CODICIL-BREACHI-FAILURE TO PERform.

By the terms of a written contract, the second party was to have entire charge of the lands of the first party, and the sole right to sell them, and it was agreed that it should be binding on the first party's executors, and that he should make a codicil to his will to such effect. Held, that the neglect of testator to make such a codicil, and the assertion by the first party's executor and beneficiaries under the will of the right to have the estate administered, irrespective of the contract, amounted to a breach thereof. subjecting the executors to an action for damages.

7. SAME MANAGEMENT OF ESTATE-INDIVIDUAL INTEREST OF ADMINISTRATOR-RATIFICATION.

Owing to the fact that the management of C.'s business was in the hands of B., the title to many of C.'s lands stood in the name of B. To protect C., B. subsequently deeded to him such real estate, and later, B. becoming insolvent, a judgment was recovered against him, and suits brought on such judgment to set aside the conveyance from B. to C. Plaintiff subsequently contracted with C. to take entire charge of his lands, on an understanding that plaintiff was to have half of the proceeds arising on a sale of any of the lands, and, acting under the contract, plaintiff effected a settlement of the suits, whereby he secured a release of the claim on the lands and an assignment of the judgment to C.. to obtain which he conveyed to the holder of the judgment a part of C.'s land. At that time plaintiff was administrator of B.'s estate and he supposed there was but little property in the estate of B.; but it subsequently turned out that the judgment was worth a considerable amount as a claim against B.'s estate. Held, that such transaction having been ratified by the executor of C., and any fraud having been res inter alios, the transaction did not preclude plaintiff, in an action against C.'s executor for breach of the contract between plaintiff and C., from having the value of the judgment included as a part of the proceeds of C.'s property.

Exceptions from Superior Court, of Hampshire County; Wm. B. Stevens, Judge.

Action by Jerome D. Mills against William H. Smith, as executor of the will of Samuel Mills Cook. Judgment in favor of plaintiff, and defendant brings exceptions. tions overruled.

Excep

Harlan P. Roberts and E. L. Shaw (S. W. Packard, of counsel), for plaintiff. N. P. Avery and Saml. C. Darling, for defendant.

KNOWLTON, C. J. The plaintiff's claim rests upon a contract under seal, entered into between him and the defendant's testator. The recovery now sought is of damages for a breach of contract. In making the writing the parties first recited that Samuel M. Cook, the defendant's testator, then a resident of Holyoke, Mass., was the owner of a large amount of real estate and some personal property in the state of Minnesota; that there was litigation pending in regard to the title to some of the real estate; that there were unpaid taxes upon much of it; that Cook was unwilling to spend any more money in caring for his property interests in Minnesota and did not wish to be troubled about deciding questions of policy in the management of his interests in that state; that he had confidence in the judgment and business ability of the plaintiff and was desirious of inducing him to take charge of his business affairs in the state of Minnesota, and that he had already executed a general power of attorney authorizing him to make conveyances and to do other business for the said Cook in that state. The contract, which bore date December 29, 1900, continued as follows:

"Witnesseth, that the said party of the

first part, for and in consideration of the promises and agreements made by the party of the second part hereinafter contained, and in further consideration of the sum of one dollar in hand paid by the said Mills to the said Cook, has agreed and hereby does agree with the said Mills as follows, to wit:

"The said Cook authorizes and directs the said Mills to take entire charge of all the property interests of the said Cook in the state of Minnesota, of every kind and nature, whether the same be in the shape of real property or in the shape of liens or claims upon real property, of any kind or nature, and hereby authorizes the said Mills to sell and dispose of any and all his interests in Minnesota at such prices and upon such terms as may seem best to him, the said Mills, and does hereby authorize the said Mills to make any disposition of any or all of said Minnesota property belonging to said Cook, as to him may seem best, either to sell the same for cash or to exchange the same for other property, or do anything in the premises that may seem wise and prudent to the said Mills.

"It is further understood and agreed that, out of the proceeds of the said property so to be sold by the said Mills, there shall first be paid any and all expenses and disbursements incurred by the said Mills in the transaction of the said business. After the payment of the said costs and expenses, the net proceeds obtained from the said property are to be divided equally between the parties to this agreement. The said Mills agrees to accept his half of the said proceeds in full settlement of all his claims for compensation for service rendered under this agreement. The said Mills also promises and agrees to give to the transaction of the business hereinbefore set forth, as much of his time as to him may seem necessary in order to properly manage the said business, and use his best judgment in the disposition of the said property, and in the settlement of all matters now in dispute in relation to the same, and in the compromise and settlement of all questions that may hereafter arise in regard to such property.

"It is further understood that the said Mills is to look to the said property for his compensation for all services rendered under this contract, and for all expenses incurred by him in the transaction of the said business.

"It is further understood and agreed that the said Cook relies entirely upon the judgment of the said Mills in the handling of said property, and the said Mills is not to be held accountable to the said Cook or to any one else in his behalf, for errors in judgment in the transaction of said business, it being understood that the decision of the said Mills as to the advisabilty of any particular 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 required to carry out the provisions of this contract and co-operate with the said Mills in the disposition of the property covered by this contract, and execute any and all papers, of every kind and nature, necessary in order to enable the said Mills to dispose of the property in accordance with the terms of this agreement.

"It is further understood and agreed that this contract is binding upon the heirs, executors, administrators and assigns of the respective parties hereto.

"In testimony whereof the said parties have hereunto set their names and affixed their seals the day herein first above mentioned."

Signed and sealed, etc.

The case was referred to an auditor, who found for the plaintiff, and his report was the principal part of the evidence at the trial before the justice of the superior court, who heard the case without a jury. Cook, the defendant's testator, died December 29, 1901. He had signed the contract on January 19, 1901. When it was sent to him for his signature by the plaintiff, who had executed it previously, a proposed codicil to Cook's will was enclosed with it, which directed his executors to carry out all the provisions of the contract, and to that end to execute, at the plaintiff's request any and all papers relating to any property owned by the testator at the time of his decease, in the state of Minnesota, tending to carry out the provisions of said contract. In a letter sent on the day when he signed the contract, the testator wrote to the plaintiff in part as follows: "Of course I leave the whole thing in your hands and to your judgment, and shall be content with the outcome. The agreement you forward I will sign and shortly forward, and the codicil, as you suggest, shall be annexed to the will; or my executor, who is my nephew and will scrupulously comply with any instructions I may give, will in good faith carry them out." The following memorandum in Cook's handwriting was found with his will, having been placed there by his direction: "Holyoke, 1-28-1901. This is to certify that the agreement entered into between J. D. Mills of St. Cloud, Minnesota, and myself, for the disposal of all my real estate in Minnesota, I wish my executor, William H. Smith, to carry out to the letter. S. M. Cook."

Cook died, however, without making any provision by will or codicil for carrying out the agreement after his death, and his executor and the beneficiaries under his will have declined to permit the plaintiff to com

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 contemplated by the contract, and had remitted to Cook $1,100 in money. There remained to be sold, under the contract, lands to which there was a clear title, worth in excess of taxes due thereon, $18,951.08, and other lands and interests in lands of the agreed value of $1,000. Nearly $500 was realized from insurance and from a small piece of land sold after Cook's death.

The questions argued by the defendant arise upon the refusal of the court to make a large number of rulings requested by him. These relate, for the most part, to the validity of the contract. The first ruling requested by the defendant was given by the court, to the effect that the contract by which the rights of the parties are to be determined is made up of a sealed instrument bearing date December 29, 1900, the quoted extract from the letter of Cook to Mills dated January 28, 1901, and the statement in Cook's handwriting found with the will. The defendant cannot now complain of a construction of the evidence adopted at his request. Indeed, if, as he now contends, the only contract is the instrument under seal, the legal effect is the

same.

It was admitted by both parties, at the hearing before the auditor and at the argument in this court, that the contract did not give the plaintiff a power, coupled with an interest, such that he could dispose of the property, or enforce the contract directly against it, after Cook's death. The plaintiff's authority under the power of attorney was, therefore, terminated by the death of the testator. See Hunt v. Rousmansier, 8 Wheat. (U. S.) 174-203, 5 L. Ed. 589; Alworth v. Seymour, 42 Minn. 526, 44 N. W. 1030.

It is contended that the contract, so far as it is executory, is nonenforceable because lacking in mutuality. We see no foundation for this contention. In the first place it is an instrument under seal, and it recites the receipt of a valuable consideration by Cook from the plaintiff. Next it purports to give valuable privileges to the plaintiff in the right to receive one-half of the proceeds of the property above the expenses of clearing up and establishing the title and other expenses and disbursements in the transaction of the business, and it secures a valuable right to the testator in the agreement of the plaintiff to give his time to the transaction of the business, as much as to him may seem. necessary for the proper management of it, and to use his best judgment in the disposition of the property, and in the settlement of all matters relating to it. By this agreement he was bound to go on in good faith and