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(143 Mass. 382)

GARDNER and another o. PEASLEE and others. (Two Cases.)

(Supreme Judicial Court of Massachusetts. Essex. January 10, 1887.) 1. PRINCIPAL AND AGENT- LIABILITY-ELECTION BY CREDITOR.

To bring into operation against a creditor the doctrine of estoppel by election, as between principal and agent, the fact of the agency must be shown to have existed, to the knowledge of the creditor, at the time the election was made; and where, in an action by a landlord for use and occupation, against a principal and his alleged agent jointly, there is evidence for the jury that the principal hired the premises, and entered into possession, and, under the ruling of the court, the question of a joint letting by the agent and principal is taken from the jury, and they are instructed that, if they believe that the contract was made with the alleged agent as agent, the action cannot be maintained, it will be presuned, on appeal, the instructions not having been excepted to and the jury having found for the landlord, that

there was no joint contract, and that the prenaises were let to the principal. 2. SAME-PROVING CLAIM AGAINST INSOLVENT AGENT.

Under such a state of facts, the proving by the landlord of the bill for use and occupation sued on against the insolvent estate of the alleged agent does not amount

to an election. 3. APPEAL-HARMLESS ERROR-INSTRUCTIONS-REQUESTS FOR.

Where it would have been error to grant requests, when made at the proper time, it is immaterial whether the ruling of the trial court that such requests were not seasonably made is erroneous or not.

The first of these actions was brought to recover $225 for the use and occupation of a portion of “Gardner block” during July, August, and September, 1885; the second was to recover for the use and occupation of the same premises in the month of October, in the same year. The actions were brought originally in the police court of Haverhill, against Richard Peaslee, Charles H. Peaslee, (his son,) Benjamin W. Mórrill, and Abbié 0. Peaslee, (wife of said Charles H. Peaslee,) where judgment was rendered against all of the said defendants, and entered, on appeal, in the superior court. At the trial in the superior court, before MASON, J., the defendants rested their case on the plaintiffs' evidence, (said Morrill being represented by one attorney and the Peaslees by another,) and asked the presiding judge to rule that the action could not be maintained as brought; and, further, that there was no evidence of any agreement, express or implied, on the part of Morrill, or on the part of said Abbie 0. Peaslee, with the plaintiffs. The request on the part of Morrill was made by his attorney, and the presiding judge ruled that there was no evidence to warrant the jury in finding against either Morrill or Abbie 0. Peaslee, and no exceptions were taken by any party to the action. Judgment was entered in favor of said Morrill and Abbie 0. Peaslee, and the plaintiffs proceeded against said Richard and Charles H. Peaslee, (as copartners,) introducing no further evidence.

The evidence introduced by the plaintiffs, and on which they relied to support their action, was, in substance, as follows: Before the contract of hiring was made, Richard Peaslee and Morrill examined the premises, in company with one of the plaintiffs, and some inquiries concerning the terms of letting were made by them at that time. A short time afterwards, Richard Peaslee, Charles H. Peaslee, and Morrill, in company with the same plaintiff, examined the premises again, and after the examination, but before the parties separated, Richard and Charles H., in the presence and hearing of Morrill, had some conversation, as to the terms of letting, with that plaintiff. Richard Peaslee, by whom the conversation was principally conducted on the part of the defendants, then turned aside from the plaintiff, and consulted with the other two. He then turned to the plaintiff, in the presence of the other two, and said: “Mr. Gardner, we will take that building." It did not appear that Morrill personally had any talk with the plaintiff. It further appeared that this building was hired by Richard Peaslee and Charles H. Peaslee, under

v.9N.E.no.10—53

the name of B. W. Morrill; that the business (of shoe manufacturing) was conducted on the premises under the name of B. W. Morrill. Goods were sold to the concern under that name; and the statements of goods sold to the concern were made out to B. W. Morrill, but the plaintiffs' rent bills were made out to R. Peaslee & Son, and all the bills of the concern were paid in checks signed “B. W. Morrill,” which were drawn by Morrill, but which, in the case of the plaintiffs' rent bills, were drawn and signed in the presence and under the direction of Richard Peaslee. It further appeared that, at the time of the letting, the plaintiffs did not understand that B. W. Morrill was a contracting party, but only a figure-head and a cover for R. Peaslee & Son; and that the plaintiffs instructed their book-keeper to charge the rent for the premises, and to make out the rent bills, to “R. Peaslee & Son;" and that the plaintiffs, at the time of said letting, and thereafter. wards, understood that, whatever B. W. Morrill did in the business of B. W. Morrill, he did in behalf of R. Peaslee & Son, and as a figure-head. But there was no evidence that Morrill, in person, took any part in the hiring of the premises, except being present during the examinations of the premises, and at the conversations between the two Peaslees and the plaintiffs, as before stated.

It further appeared that on September 25, 1885, the assets of the concern of B. W. Morrill, being the stock and machinery used in said business, were attached on the first of these writs; that the defendant Morrill thereupon, in December of the same year, filed his petition in insolvency, and the property attached vested in his assignee. On February 16, 1886, the plaintiffs proved the claims sued for in the present actions against the estate of said Morrill, in insolvency, and also proved a claim for the costs and expenses of said suits. Said proofs contained the statement that said claim was due for the use and occupation of certain premises hired by said Morrill, with other persons, from said Gardner Bros.

The defendants requested the court to instruct the jury-First, that in the hiring of said premises, and in the management of the business of R. Peaslee & Son, Morrill acted as their agent, and the plaintiffs, by proving their claim against the estate, in insolvency, of said Morrill, have elected to hold the agent, and cannot recover in these actions; second, if Morrill was not the defendants' agent in hiring said premises, but contracted jointly with them, then the plaintiffs cannot recover in the present actions. After the arguments in the case were begun, the defendants further requested the court to instruct the jury--Third, that the plaintiffs were not entitled to recover; and, fourth, that if R. Peaslee & Son were doing business under the name of B. W. Morrill, and the premises of the plaintiffs were hired in furtherance of said business, the plaintiffs are not entitled to recover. The presiding judge refused to give these rulings, but instructed the jury in terms the substance of which appears in the opinion, the jury found for the plaintiffs, and the defendants alleged exceptions.

J. P. & B. B. Jones, for defendants Richard and Chas. Peaslee.

As to third parties, who had no knowledge of the true relations, these defendants and Morrill were clearly liable as copartners. Lord v. Baldwin, 6 Pick. 348; Wright v. Herrick, 125 Mass. 154. The law as to partnership is a branch of the law of agency. Wheatcroft v. Hickman, 9 C. B. (N. S.) 47; In re English & Irish Ch. & Univ. Assur. Soc., 8 Law T. (N. S.) 724. As between these defendants and Morrill, the relation of principal and agent existed, (Edmunds v. Bushell, L. R. 1 Q. B. 97;) and between the plaintiffs and these defendants and Morrill, the plaintiffs were principals and Morrill an agent; for the plaintiffs knew of the true relations existing between Morrill and the defendants, and did not consider Morrill as a contracting party. The ruling of the presiding judge, to which no exception was taken, that Morrill was not a joint contractor, was correct. See Kingsley v. Davis, 104 Mass. 178. The fifth instruction requested should have been given. It was error to submit the question of agency to the jury.

Ira A. Abbott and Francis H. Pearl, for plaintiffs.

The question as to the agreement of hiring was one of fact for the jury. Even if there was an error in anỳ single passage of the instructions, it would be cured by the further instruction to consider the whole evidence as it has been given. Jackman v. Bowker, 4 Metc. 235. As the defendants took no exception to the admission of any evidence which was submitted to the jury, they are bound by the finding based upon the consideration of the whole evidence. The bill of exceptions does not show that there was any evidence that Morrill contracted jointly with the defendants. Therefore the defendants' exception to the neglect to give the second instruction requested cannot be sustained. Stearns v. Janes, 12 Allen, 582; Salomon v. Hathaway, 126 Mass. 482. See Edwards v. Carr, 13 Gray, 234–238. The third and fourth instructions were not seasonably requested. Ela v. Cockshott, 119 Mass. 416; McMahon v. O'Connor, 137 Mass. 216. If the request for the fourth instruction had been seasonably made, it must have been refused, for it could not be said, as a matter of law, that the defendants could not contract debts in furtherance of another's business, for which they would be personally liable.

FIELD, J. There was evidence for the jury that Richard and Charles H. Peaslee hired the premises of the plaintiffs, and entered into possession as their tenants. The court ruled, as matter of law, that there was not sufficient evidence to warrant the jury in finding that Morrill was a joint contractor with the Peaslees, and also ruled that, if the contract of hiring was in fact made with Morrill as the agent of the Peaslees, the action could not be maintained. Neither party excepted to those rulings, and it must therefore be taken that the jury found that Morrill was not a joint contractor with the Peaslees, and did not hire the premises as their agent. Under this state of facts, the proof by the plaintiffs of their claims against the estate of Morrill in insolvency, which were the claims on which these suits were brought, does not affect their rights to proceed against the Peaslees. Morrill, on the facts found, was never their debtor, either severally or jointly, with the Peaslees, and the plaintiffs never had the right to elect to hold him as their debtor; and the proceedings by the plaintiffs against his estate are proceedings against the estate of one who is a stranger to the transaction. It is immaterial whether the ruling that the requests numbered 3 and 4 were not seasonably made, is erroneous or not, because they ought not to have been granted. Exceptions overruled.

(143 Mass. 452)

MCDONALD V. WILLIS. (Supreme Judicial Court of Massachusetts. Middlesex. January 24, 1887.) OATH-MECHANIC'S LIEN-CERTIFICATE-ATTORNEY.

The act of an attorney for a petitioner to establish a mechanic's lien, in administering to the petitioner the oath to his certificate, the attorney being a justice of

the peace, is substantially ministerial, and the oath so administered is sufficient. Petition to enforce a mechanic's lien. At the trial in the superior court, before MASON, J., the petitioner offered a certificate of his account duly filed in the registry of deeds, but it appeared from the evidence of the petitioner that the certificate was sworn to before a magistrate, who was at the time the attorney of the petitioner in said matter. The respondent objected to the certificate on the ground that the justice administering the oath was, at that time, the attorney of the party in relation to the cause involved in said oath, but the court overruled the objection, and admitted the certificate. The rerespondent also requested the court to instruct the jury “that the oath to the certificate having been administered by the attorney of the party in relation to a cause for which he was employed as such attorney, the same was void, and of no effect.” The court refused this request, and on this point gave no instruction. The jury found for the petitioner, and the respondent alleged exceptions. L. H. Wakefield, for respondent.

This case does not essentially differ from the case of Judd v. Tryon, 131 Mass. 345. In that case the oath was administered by an interested magistrate to two disinterested witnesses, when in this case the oath was administered by the attorney to his own principal in a matter in which such principal was a party, and, save there were two living bodies, it was the administration of an oath by a party to himself. The oath in such case is judicial, and not ministerial, and such proceedings have been repeatedly declared illegal and void. McGregor v. Crane, 98 Mass. 530; Taylor v. Hatch, 12 Johns. 340; Den v. Geiger, 9 N. J. Law 225; King v. Wallace, 3 Term R. 403.

8. A. Phillips and P. H. Cooney, for petitioner, cited Pub. St. c. 155, § 2; Id. c. 191, SS 6, 8; White v. Duggan, 140 Mass. 18; S. C. 2 N. E. Rep. 110; Learned v. Riley, 14 Allen, 109; McGregor v. Crane, 98 Mass. 530; Lee v. Wells, 15 Gray, 459.

BY THE COURT. It is true that a man cannot be a judge and an attorney for one of the parties in the same cause. But it has always been the uniform usage for attorneys for either party to administer oaths, as justices of the peace, to their clients or others, when the necessity for voluntary affidavits arises in a case, and there is no sound objection to this when the oaths are voluntary, and the act of the justice is substantially ministerial and not judicial. In the case before us the act of the attorney of the petitioner in ad. ministering to him the oath to his certificate was substantially ministerial, and did not involve or require any hearing, decision, or adjudication. The act of the attorney was no more judicial than the taking an acknowledgment to a deed, and the superior court rightly ruled that the oath was sufficient. Exceptions overruled.

FLAX POND WATER CO. 0. CITY OF LYNN. (Supreme Judicial Court of Mussachusetts. Suffolk. January 24, 1887.) 1. EQUITY-BILL-CONCLUSION OF LAW-ASSESSMENT OF TAXES—TITLE TO REAL ESTATE.

Where a bill in equity alleges that the plaintiff, by a certain deed, “acquired all the right, title, and interest in and to the waters of a certain pond, and all the dams, sluices, and water-ways connected therewith," what the plaintiff took by this deed depends upon its construction, and not upon the further allegation of the plaintiff that it did not acquire “the title to any real estate;" and a bill in this form cannot be considered by the full court, where a copy of the deed is not fur

nished. 2. TAXATION-ABATEMENT-PROPER PROCEEDINGS.

The remedy of a plaintiff who claims to have been wrongfully assessed taxes on

its real estate is by an application for an abatement of the tax under the statute. * 3. SAME_POWERS OF SUPREME COURT TO ENJOIN COLLECTION OF TAXES.

A decree of a justice of the supreme court, enjoining a city from collecting taxes assessed upon real estate, and from further assessing taxes thereon, is erroneous. Bill in equity to compel the defendant to execute to the plaintiff a release of the title to the estate of the plaintiff, acquired by defendant under certain tax sales. Hearing in the supreme court, before GARDNER, J., who decreed that the deeds to the defendant were null and void; that the defendant execute the deeds as prayed for; and that the defendant be enjoined from collecting any taxes assessed to the plaintiff, upon the estate in question, and from further assessing taxes thereon. From this decree the defendant appealed. The facts material to the point decided are stated in the opinion,

J. W. Berry, for defendant. c. 8. Lincoln, for plaintiff.

BY THE COURT. This case comes before us in so imperfect a manner that we cannot satisfactorily decide the rights of the parties upon the record as it stands. The bill alleges that the plaintiff, by a deed from Stephen H. Tarbell, acquired all the right, title, and interest in and to the waters of Flax pond, and “all the dams, sluices, and water-ways connected therewith.” What the plaintiff took by this deed depends upon its construction, and not upon the further allegation of the plaintiff that it did not acquire “the title to any real estate,” which is an allegation merely of a conclusion of law. We are not furnished with any copy of this deed. If, by its true construction, the plaintiff took any part of the land taxed, its remedy was by an application for an abatement under the statute. Howe v. Boston, 7 Cush. 273. It may be the fault of the appealing party that the case is improperly brought before us, but we are unwilling to decide so important a case upon so technical a ground. Besides this, the decree is erroneous in enjoining the defendant from collecting any taxes assessed to the complainant on its interest, and from further assessing taxes thereon. Such an injunction is not within the equity jurisdiction of the court. Norton v. Boston, 119 Mass. 194, and cases cited.

We are satisfied that justice requires that the decree should be vacated, and the case stand for further hearing before a single justice. Order accordingly.

COMMONWEALTH 0. HERSEY. (Supreme Judicial Court of Massachusetts. Middlesex. January 31, 1887.) 1. INTOXICATING LIQUORS-ILLEGAL KEEPING FOR SALE-JURISDICTION.

Where, at the trial of a complaint charging the defendant with illegally keeping intoxicating liquors for sale, it appeared that the offense was committed at w., and the defendant resided

in N., held, that the district court within whose judicial district was the town of W., bas jurisdiction of the offense. 2. SAME-COMPLAINT.

A complaint charging that the defendant, "on September 13, 1886, and on divers days and times between that day and September 26th, at W., did keep certain in

toxicating liquors,” etc., with sufficient certainty sets forth the time of the offense. 3. SAME/CONTINUING OFFENSE.

Keeping liquor for sale may be a continuing offense, and may be alleged with a continuando. Complaint on Pab. St. c. 100, § 1, to the first district court of southern Middlesex, that the defendant on September 13, 1886, and on divers days and times between that day and September 27, 1886, at Wayland, did keep certain intoxicating liquors for sale, etc. Before the trial in the superior court, before THOMPSON, J., the defendant moved to quash the complaint because it did not set forth with sufficient certainty the time of the alleged offense, and because said district court had no jurisdiction under said complaint. The court overruled the motion. At the trial the evidence tended to show that the defendant did keep certain intoxicating liquors for sale at the time and place alleged. The jury returned a verdict of guilty, and the defendant alleged exceptions.

J. L. Eldridge, for defendant. H. N. Shepard, Asst. Atty. Gen., for the Commonwealth.

BY THE COURT. The objection that the complaint does not set forth with certainty the time of the offense is not well founded. Keeping liquor for sale may be a continuing offense, and may be alleged with a continuando. Com. v. Chisholm, 103 Mass. 213.

We can see no reason for the objection that the first district court of southern Middlesex has no jurisdiction of the offense and the defendant. The offense was committed in Wayland, which is within the judicial district of that court, and it makes no difference that the defendant resided in Natick, outside of the district. Pub. St. c. 154, SS 1, 11, 17.

Exceptions overruled.

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