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er and grocery business and on that day est sense a sale is a transfer of personal sold the articles mentioned in the writ, to- property in consideration of money paid or gether with a stock of merchandise in the to be paid, still in the interpretation of statstore in bulk to Carol Kopec for $550, of utes it is often held to include barter and which $100 was paid in cash, and the balance any transfer of personal property for a valuwas to be paid on June 9, 1905. Kopec took able consideration. “In a general and poppossession on the same day and proceeded to ular sense, the sale of an article signifies carry on the business. During the time the transfer of property from one person to he was in possession he sold nearly all the another, for a consideration of value, withstock of merchandise and purchased other out reference to the particular mode in merchandise for use in the business. On which the consideration is paid.” Bigelow, June 9th Gallus demanded payment of the C. in Howard v. Harris, 8 Allen, 297, 299. amount due, which was not paid. Where- And accordingly it was held in that case upon Kopec stated that he was willing that that where the consideration for the transGallus should take all of the property in fer of the ownersbip of a horse consisted of payment of the debt due. This was agree- intoxicating liquors which the buyer of the able and the parties went to an attorney horse was not legally authorized to sell, the who prepared an instrument reciting that transaction was a sale within the meaning Kopec in consideration of $400 paid by Gal- of a statute prohibiting the sale of intoxicatlus sold, transferred, and delivered all of the ing liquors. property back to Gallus to hold to him, We are of opinion that the statute in his heirs and assigns, forever. No inventory question was intended to prevent a trader was made as required by Acts 1903, c. 415, from disposing of his stock of merchandise and no list of creditors was demanded or in a manner outside his usual course of furnished, nor were the creditors of Kopec business, so that the same should be taken ever notified, and on June 12th defendant

away from his creditors in general, and that Elmer took possession of the articles men- the transfer under the circumstances distioned under a writ on an attachment in closed in this case was a sale although made favor of the H. L. Handy Company, a cred- to a creditor. itor of Kopec, whereupon Gallus instituted The plaintiff still further insists that the replevin.

statute does not apply to the fixtures, and Edwd. A. McClintock and John P. Kirby,

this view seems correct. The phrase "stock for plaintiff. Jas. H. Loomis, for defendant.

of merchandise" as used in the statute,

properly and naturally describes articles HAMMOND, J. St. 1903, p. 276, c. 415, which the seller keeps for sale in the usual provides that “the sale in bulk of any part course of his business. It does not naturally of the whole of a stock of merchandise other- describe fixtures. It would hardly be within wise than in the ordinary course of trade the usual course of business for a store or in the regular and usual prosecution of keeper at any time to sell his fixtures, and the seller's business shall be fraudulent and it is not to be presumed that the Legislature void as against the creditors of the seller" intended to prohibit the sale of a fixture, unless certain things are done by the seller unless such intent is clearly expressed. The and purchaser, and the question is whether natural reading of the statute makes it apthe transaction which took place between plicable, as has been said, only to the articles the plaintiff and Kopec on June 9, 1.905, was which in the ordinary course of his busiwithin the statute. The requisites of the ness the seller keeps for sale, and that statute were not complied with by either the must be taken to be its legal meaning. See, seller or the purchaser, and the transaction Albrecht v. Cudihee, 34 Wash. 206, 79 Pac. was clearly otherwise than in the ordinary | 628. It follows that the plaintiff may recourse of the seller's business.

cover the fixtures replevied, but cannot hold The plaintiff however stoutly insists that the meats and provisions. Upon inspection the transaction in substance was not a sale, of the record it appears that certain of the but the discharge by way of accord and articles were fixtures and tools. For this satisfaction of a pre-existing debt due to reason the order must be him from Kopec. There can be no doubt Exceptions sustained. that there was a discharge of the pre-existing debt by way of accord and satisfaction; and if, after the transaction, the plain

(193 Mass. 56) tiff had sued Kopec, the accord and satis

HARRIS v. FITCHBURG & L. ST. RY. CO. faction would have been a complete defense.

(Supreme Judicial Court of Massachusetts. But the transaction had another phase

Worcester. Oct, 16, 1906.) so far at least as respected Kopec's other

STREET RAILROADS-COLLISIONS - CONTRIBUcreditors. There was a change in the own

TORY NEGLIGENCE-QUESTION FOR JURY.

In an action against a street railway comership of the property, which, if valid as pany for injuries caused by a collision, evidence against them, freed from liability property considered, and held, that the court properly which theretofore could have been attached

refused to rule as a matter of law that plaintiff

was not in the exercise of due care. by them; and thus their security was im

[Ed. Note.-For_cases in point, see vol. 44, paired. While it is true that in its strict- Cent. Dig. Street Railroads, $8 255–257.]

Exceptions from Superior Court, Worcester evidence considered, and held sufficient to supCounty ; Daniel W. Bond, Judge.

port a finding that defendants were negligent

in failing to caution plaintiff of the danger. Action by Charles W. Harris against the

[Ed. Note,-For cases in point, see vol. 37, Fitchburg & Leominster Street Railway Com

Cent. Dig. Negligence, 88 267-273.] pany. From a judgment for plaintiff, defend

2. SAME-FREEDOM FROM CONTRIBUTORY NEGant brings exceptions. Exceptions overruled.

LIGENCE.

In an action for injuries received by falling David I. Walsh and Thos. L. Walsh, for

into an elevator well in defendants' building, plaintiff. Chas. F. Baker and Walter Perley evidence considered, and held sufficient to supHall, for defendant.

port a finding that plaintiff was free from con

tributory negligence. MORTON, J. This case comes here on ex

[Ed. Note.-For cases in point, see vol. 37,

Cent. Dig. Negligence, $$ 274 276.] ceptions by the defendant to the refusal of the court to rule that on all of the evidence Exceptions from Superior Court, Worcesthe plaintiff was not in the exercise of due ter County; Edwd. P. Pierce, Judge. care. That is the only question presented by

Action by Sarah S. Wills against Ranthe bill of exceptions.

som F. Taylor and others. From a judgment The plaintiff testified, amongst other for plaintiff, defendants bring exceptions. things, that as he came down School street Exceptions overruled. he looked up West street at the only place

Wm. A. Gile and Chas. S. Dodge, for where he could look over the Pierce estate

plaintiff. Geo. S. Taft and Clarence W. and saw no car approaching; that as he

Hobbs, Jr., for defendants. went into West street he looked again and saw no car; that he was driving slowly;

HAMMOND, J. The jury specially found and that when the horse got on to the track

that the elevator doors were open at the time he looked again and then saw the car ap

the plaintiff went to the building, and that proaching and urged the horse ahead think

she never had been there before. The eviing that he could get across the track which

dence warranted those findings. The de. he did all but the rear part of the wagon

fendants were the owners of the building, and the hind wheel which were struck by

and it was in their charge and possession. the car. He further testified that as he came

While it is true that some repairs had been down School street into West street he lis

going on, yet on cross-examination one of tened and heard no sound or warning of an

the defendants testified that on September approaching car. This testimony, if believed,

29th, the day of the accident, the work was would warrant a finding that he was in the

substantially done. He testified: “The exercise of due care. The distance at which

pluinbers had been out of there three weeks. a car could be seen or ought to have been

There were no carpenters there and no seen on West street from School street was a

paperers there. There was one painter there. circumstance to be taken into account and

I understand that he was gilding the picture given such weight as the jury thought the

mouldings. There were two men on the fact as they found it justly entitled to. It is

outside of the building. No one else was to be assumed that proper instructions were

in the building except one tenant (Miss given as to what would and would not con

Burns) and we did not depend upon her stitute due care on the part of the plaintiff.

to see that the elevator was taken care of We think that it could not be ruled as matter

or the elevator doors closed. She didn't use of law that the plaintiff was not in the ex

the elevator, but her friends might have ercise of due care and that the instruction re

used it." In a word, the premises were unquested was rightly refused. See Orth v.

der the charge of the defendants the ownBoston Elevated Ry. Co., 188 Mass. 427, 74

ers, and upon them rested the duty of using N. E. 673; McCarthy v. Same, 187 Mass. 493,

reasonable care to see that they were safe. 73 N. E. 559; Evenson v. Lexington & Boston By their invitation the plaintiff went to St. Ry., 187 Mass. 77, 72 N. E. 355; Kelley v. the house for the purpose of examining it Wakefield & Stoneham St. Ry., 179 Mass.

as a prospective tenant. The hallway was 542, 61 N. E. 139; Lahti v. Fitchburg & Leo

narrow. At the rear end of it as originally minster St. Ry., 172 Mass. 147, 51 N. E. 521; built there was a door containing ground Driscoll v. West End St. Ry., 159 Mass. 142, glass panels, which opened into a doctor's 34 N. E. 171.

office. Subsequently an elevator was put Exceptions overruled.

in by the defendants' predecessor at the rear end of the hallway, with doors open

ing into the hallway. The door to the doc(193 Mass. 113)

tor's office was left unchanged, except that WILLS v. TAYLOR et al.

a bar was put across it so that it could not (Supreme Judicial Court of Massachusetts. be used. The elevator occupied substantially Worcester. Oct. 17, 1906.)

the whole width of the hall. When the ele1. NEGLIGENCE CONDITION OF PREMISES

vator doors were open and the car was as SUFFICIENCY OF EVIDENCE WARNING OF DANGER.

high as the second floor, this ground glass In an action for injuries received by falling door was plainly visible "on account of the into an elevator well in defendants' building, light the other side of it,” as one witness

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testified. The hallway was quite dark, one 2. SAME-WAIVER OF DEMAND-IGNORANCE OF witness testifying that she “should say it

LEGAL EFFECT. was not light enough in the hall to see any

Where an indorser of a note, when he sign

ed a waiver of demand and protest, knew the thing except the door with the ground glass" facts which released him, his ignorance as to which was in the rear.

their legal effect would not relieve him from the As to the manner in which the accident consequences of his waiver. occurred, the plaintiff testified as follows:

3. SAME — ACTION — ADMISSIBILITY OF EVI

DENCE-FRAUD. "I went to the block, and found the outside

Where an indorser of a note signed a waivdoor wide open. I went in and went along er of a demand after the time for it had exthe side of the stairs [on one side of the

pired, at the instance of the payee's attorney, hallway] and saw a door with two panes of

testimony that when he signed the waiver he

did not know that he had been relieved from frosted glass, and I thought it was the kitch- liability was admissible on the question whether en or dining room. It was so dark I could the representations of the attorney were the see only that door. * * As I did my

effective inducement to his action. own cooking, I thought I would like to see Exceptions from Superior Court, Hampden the kitchen, and, as I was going along, I put County; Loranus E. Hitchcock, Judge. my hand out in front of me, as I once ran Action by James W. Toole against Howard against a door in the dark. I didn't run it

A. Crafts and others. Judgment for plaintiff, along the side of the house. I could see

and defendants bring exceptions. Exceptions nothing but that door with the frosted glass sustained in it at the end of the hall, and I went along

C. T. Callahan, for plaintiff. Green & and found myself falling. I opened no door

Bennett, for defendant L. D. Crafts. and saw no door but the one I supposed was the door going into the dining room, that is,

HAMMOND, J. This is a suit upon a the door with the ground glass in it. I saw nothing except that. I did not know there

promissory note dated June 2, 1900, signed was any well there. I supposed I was going

by the defendant Howard A. Crafts and payto the dining room, and I remember myself

able to the order of the plaintiff on demand. falling, but don't remember hitting the bot

Before its delivery to the plaintiff the other tom or anything at all."

defendant Linus D. Crafts, who alone deShe was found shortly afterwards at the

fends, placed his name upon the back of it. bottom of the well, nearly, if not quite, un

He is therefore liable only as an indorser. conscious. At the time she was found the

St. 1898, p. 502, c. 533, § 63, now Rev. Laws,

c. 73, $ 80. No demand sufficient to charge elevator doors on the hall floor were open and the car was above the second floor.

him as indorser ever was made upon the Upon the evidence the jury might well

maker, and, if the matter had stood there, have found that in view of the darkness of

his defense would have been perfect. But the the entry, the existence of the elevator well,

matter did not stand there. Upon June 27, the appearance of the glass door, and their

1904, when the time for making a demand relative situation, there rested a duty upon

upon the maker sufficient to charge the inthe defendants to caution the plaintiff, and

dorser had expired, a conversation took place that in failing to give such caution the de

between one Allyn the attorney for the plainfendants were negligent. And the jury might

tiff on the one hand and Linus on the other, further find that the plaintiff, being by the

during which the former wrote upon the back invitation of the defendants upon the prem

of the note and the latter signed a waiver of ises for the purpose of examining them was

"demand, notice and protest." The evidence justified, in the absence of any information

as to the tenor of the conversation was conor caution to the contrary, in thinking that

flicting, and one question was whether the the door lead to some part of the tenement

waiver had reference to a demand, notice and and in trying to reach it as she did.

protest which ought to have been made in the Exceptions overruled.

past in time to charge the indorser, or to a demand, notice and protest which the plaintiff was about to make. This question was sub

mitted to the jury with proper instructions. (193 Mass. 110)

The verdict shows that the jury found that TOOLE V. CRAFTS et al.

the language had reference to the past. (Supreme Judicial Court of Massachusetts.

The defendant contended that at the time Hampden. Oct. 17, 1906.)

he signed the waiver he was not aware that 1. BILLS AND NOTES-INDORSEMENT- LIABIL

he had been freed from his liability, but the ITY OF INDORSER.

court rightly ruled that if he knew the facts Under Rev. Laws, c. 73, § 80, providing which released him his ignorance as to their that a person's signature on an instrument

legal effect would not save him from the conotherwise than as maker shall be deemed an indorsement, unless he clearly indicates his in- sequences of the waiver. Third National tention to be bound in some other capacity, Bank v. Ashworth, 105 Mass. 503. a person placing his name on the back of a

The defendant contended that he was innote before its delivery is liable only as an indorser.

duced to sign the waiver by the false and [Ed. Note.-For cases in point, see vol. 7,

fraudulent representations of Allyn acting Cent. Dig. Bills and Notes, § 550.]

for the plaintiff. This question was submit

ted to the jury under quite full instructions. The defendant has complained of those instructions, but we have not had occasion to consider them because we are of opinion that a new trial must be had for error in the exclusion of the evidence bearing upon this part of the defense.

To make good his defense of fraud the defendant was bound to show not only that the representations were false and fraudulent but that in reliance upon them he was induced to act as he did. Upon this branch of the defense, the operation of his mind was for the consideration of the jury, and on that he was a competent witness. Knight v. Peacock, 116 Mass. 362. He offered to show by his own testimony that at the time he signed the waiver he did not know that he had been relieved from liability on the note. This evidence was excluded. While, as above stated, it was not admissible to relieve him from the consequences of his waiver in the absence of fraud, yet upon the question of whether the representations of Allyn were the real and effective inducement to his action it was admissible. It might well be that a man believing himself to be liable upon a note could be more easily influenced to sign such a waiver than one who believed himself free from liability. A reading of the record shows that this evidence was offered at the stage of the defense in which the defendant was trying to prove the fraud. It should have been admitted. Its exclusion may have worked harm to the defendant. It becomes unnecessary to consider the other objections to the exclusion of evidence. They may not arise again.

Exceptions sustained.

Exceptions from Superior Court; Hampshire County ; Lloyd White, Judge.

Action by Isaac Horr against the New York, New Haven & Hartford Railroad Company. A verdict was directed in favor of defendant, and plaintiff brings exceptions. Sustained.

Plaintiff sued to recover for personal injuries sustained by him while in a sleigh on Payson avenue in East Hampton by reason of his horse which was reasonably gentle becoming frightened at a number of mail bags lying in the highway and in the custody of the agents and servants of defendant railroad company. Payson avenue is a public highway and crosses the tracks of defendant railroad at grade. On January 25, 1904, a mail train of defendant company arrived at the station at 6:35 a. m., and the parcels of mail were taken from the train at the Payson avenue crossing, where they remained until they were deposited in the post office at East Hampton. There was evidence that the mail sacks were permitted to remain in the street an unreasonable length of time.

Edward L. Shaw and John L. Lyman, for plaintiff. John C. Hammond, for defendant.

(193 Mass. 100) HORR V. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts.

Hampshire. Oct. 17, 1906.) 1. HIGHWAYS-OBSTRUCTION-MAIL SACKSINJURY TO TRAVELER.

In an action for injuries to plaintiff by his horse becoming frightened at certain mail sacks dumped from defendant's railroad train in close proximity to the traveled part of a highway, evidence as to defendant's negligence held to require submission of such issue to the jury.

[Ed. Note.For cases in point, see vol. 25, Cent. Dig. Highways, $ 536.] 2. SAME-NUISANCE.

Where a railroad company negligently suffered mail bags to lie in close proximity to a highway, where they were dumped from a train, for an unreasonable length of time, the bags became a nuisance.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Highways, 88 483, 485.]

HAMMOND, J. Upon the evidence a jury

a might find that the mail bags were piled up in such a manner and in such proximity to the traveled part of the highway as to be likely to frighten horses, ordinarily gentle and well broken, while traveling upon the way, and thus to constitute a menace to public travel; and they might further find (although upon this point the case is close) that the defendant, knowing through its servants the nature of the obstruction, negligently suffered the bags to lie in that position a longer time than was reasonably necessary and that thereby the bags became a nuisance. There was also evidence of the due care of the plaintiff, and that the horse was ordinarily gentle and well broken. The case therefore should have been submitted to the jury. Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, and cases therein cited; Lynn v. Hooper, 93 Me. 46, 44 Atl. 127, 47 L. R. A. 752, and cases there cited.

At the argument before us it was stated by the counsel for the defendant that the place where the bags lay was also within the limits of the railroad location, but since that does not appear on the record and the plaintiff did not agree that the case should be treated by us as though that statement were true, we have not considered what difference, if any, in the law of the case would be made by such a fact.

Exceptions sustained.

(222 Ill. 337)

sequence of which neglect 12 of them died. WABASH R. CO. v. THOMAS.

A plea of not guilty was filed by the defend. (Supreme Court of Illinois. April 17, 1906. ant, and upon the trial by jury a verdict Rehearing Denied Oct. 10, 1906.)

was returned and judgment rendered in fav1. CARRIERS--CONTRACT OF SHIPMENT-CON- or of the plaintiff. STRUCTION.

It appears from the evidence that at the Where a carrier receives freight consigned to a point beyond its line, it impliedly agrees

date of the shipment appellee resided in to transport the goods to that place.

Paris, Ill., though for 16 years immediately [Ed. Note.--For cases in point, see vol. 9, preceding that time he had been in western Cent. Dig. Carriers, $$ 762, 771, 781.]

Nebraska, where he was engaged in raising 2. SAME-LIMITATION OF LIABILITY.

and shipping stock. The horses in question Limitations of a carrier's liability contain

were first shipped from Nebraska to Council ed in a bill of lading are not binding on the shipper, unless it appears that such restrictions

Bluffs over the Union Pacific Railway, arwere assented to by him.

riving at Council Bluffs about 9 o'clock Sat[Ed. Note. For cases in point, see vol. 9, urday evening. They were unloaded, fed, and Cent. Dig. Carriers, § 691.]

watered, and the next morning appellee call3. SAME-ACTION-BURDEN OF PROOF.

ed on the Wabash agent at that place, to In an action against a carrier, the burden

arrange for shipment over the appellant's is on it to show that restrictions of liability contained in the bill of lading were assented to by

line. He testified that he told the agent the consignor.

that he wanted the stock sent to the stock [Ed. Note.-For cases in point, see vol. 9, yards at St. Louis, and there fed before being Cent. Dig. Carriers, § 693.]

sent to Paris. The agent prepared an ap4. SAME-LIMITATION OF LIABILITY-CLAIMS

plication and contract of shipment, the forFOR INJURIES TO SHIPMENT – REASONABLE

mer of which purports to have been signed by NESS OF PROVISION. Where a carrier was negligent in failing

the plaintiff, and the latter by the agent, on to feed and water horses during transporta- behalf of the company, and by the plaintiff. tion, whereby several of them were injured, and

The contract was for shipment from Council some of them subsequently died, the nature of the injury was such that the actual damage

Bluffs to St. Louis, and stated that the carcould not by any reasonable degree of diligence rier had agreed to forward the car of horses have been discovered and sworn to within 10 from Council Bluffs to St. Louis; that its redays after they were unloaded ; and hence a pro

sponsibility extended only to its own line; vision in the contract of shipment, requiring a claim for damages to be made within 10 days,

that appellee had agreed to care for the could not be said, as a matter of law, to be rea- horses while in transit, load and unload, and sonable.

feed and water them at his own risk and [Ed. Note.-For cases in point, see vol. 9,

expense; and that in case of loss or damage Cent. Dig. Carriers, $ 938.]

he would make and present his claim in Scott, C. J., and Cartwright, J., dissenting.

writing, verified by affidavit, within 10 days Appeal from Appellate Court, Third Dis- after the horses were unloaded, or be barred trict.

from recovering anything on account of the Action by F. E. Thomas against the Wa- same. The horses were loaded into a Street's bash Railroad Company. From a judgment Western Stable car about 12 o'clock Sunday of the Appellate Court (122 Ill. App. 569), night and delivered to the company about affirming a judgment in favor of plaintiff, 2:45 Monday morning, July 27th, leaving for defendant appeals. Affirmed.

St. Louis about 15 minutes later. They arC. N. Travous, for appellant. W. H. Clin- rived at the yards in North St. Louis at ton, H. S. Tanner, and Penwell & Lindley

6:12 o'clock the following morning, and the (Walter C. Lindley, of counsel), for ap

car in which they were being shipped was pellee.

immediately delivered to the Terminal As

sociation of St. Louis, which, in turn, de WILKIN, J. This is an appeal from a

livered it to the Cleveland, Cincinnati, Chijudgment of the Appellate Court for the cago & St. Louis Railway Company at East Third district, affirming a judgment of the St. Louis for transportation to Paris. Plaincircuit court of Vermilion county in favor of

tiff offered evidence to the effect that he told the appellee, against the appellant, for $2,400

the conductor in charge of the train to St. and costs of suit. The declaration consisted

Louis that he wanted the horses unloaded, of two counts substantially alike, charging

fed, and watered at the stock yards in St. the defendant, as a common carrier, with a Louis, and was assured that it would be breach of duty in failing to safely carry

done. This was denied by the conductor. 25 head of horses from Council Bluffs, Iowa, Appellee claims that, after thus being asto Paris, this state; negligently failing to

sured that the horses would be unloaded at properly feed and water the animals while the stock yards, he left the train at St. Louis en route; carrying them by slow trains; to get his breakfast, and then went to the and suffering the cars in which they were

stock yards to see about his horses, but loaded to stand on the track for an un- could not find them, and spent the day reasonable length of time all of which re- searching for them, until about 11 o'clock sulted in their becoming reduced in flesh, at night, when he learned that they had diseased, and lessened in value, and in con- been forwarded to Paris. The car stood

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