COMMONWEALTH v. HERSEY.

(Supreme Judicial Court of Massachusetts. Middlesex. January 31, 1887.) INTOXICATING LIQUORS-COMPLAINANT-MOTION TO QUASH-FORMAL OBJECTIONS.

An objection to a complaint charging the defendant with the illegal sale of intoxicating liquors, which is merely formal, cannot be taken for the first time in the superior court upon appeal.

Complaint, on the Public Statutes, that the defendant, on September 15, 1886, did, at Natick, keep certain intoxicating liquors with intent unlawfully to sell the same. Before trial in the superior court before THOMPSON, J., the defendant asked the court to quash the complaint, because it did not sufficiently set forth that the defendant was not licensed when he intended to sell, etc. This motion the court overruled. 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 only question presented by this bill of exceptions is whether the superior court rightly overruled the defendant's motion to quash the complaint. No argument has been made on behalf of the defendant. We suppose the defect complained of is that, in negativing the defendant's authority to sell, the complaint omits the words "then and there," before the words "authorized to sell the same in said commonwealth." If the omission of these words is of any importance, it is clear that the objection is merely formal, and could not be taken for the first time in the superior court. See Com. v. Kingman, 14 Gray, 85. Exceptions overruled.

COMMONWEALTH v. HERSEY.

(Supreme Judicial Court of Massachusetts. Middlesex. January 31, 1887.)

1. INTOXICATING LIQUORS-COMMON NUISANCE-COMPLAINT EVIDENCE. Under a complaint charging that the defendant "on June 1, 1886, and on divers other days between said day and June 25th, and on said twenty-fifth day of June, 1886, did keep and maintain, at N., a tenement then and there used for the illegal sale and illegal keeping of intoxicating liquor," evidence that the defendant kept a nuisance any part of the time alleged is competent.

2. JUSTICE OF THE PEACE-RECORD-SUFFICIENCY OF-PROOF.

Where the record of a trial justice before whom a criminal complaint was tried, sets forth that on a certain day, "by virtue of the within warrant," the defendant appeared before the justice, pleaded not guilty to the complaint, but "after due and full examination" was considered guilty by the justice, and sentenced, the record sufficiently shows that the defendant was convicted, and the time when he was tried and convicted.

Complaint, on Pub. St. 101, §§ 6, 7, to a trial justice that the defendant, on June 1, 1886, and on divers days between said day and June 25th, and on said twenty-fifth day of June, 1886, did keep and maintain, at Natick, a tenement then and there used for the illegal sale and illegal keeping of intoxicating liquor. The record of the trial justice set forth that, "by virtue of the within warrant, the respondent is brought into court this twenty-fifth day of June, A. D. 1886, and the within complaint is read to him; and, being asked whether he is guilty or not guilty of the offense within charged upon him, says that he is not guilty, but, after due and full examination, it was considered by me that he is guilty of the offense charged against him. It is therefore ordered by said court that he pay a fine," etc. Then followed the statement that the defendant appealed from said sentence, gave bond to appear at the superior court, etc. Before trial in the superior court, before THOMPSON, J., the defendant asked the court to quash the complaint, because

(1) it was too indefinite and uncertain as to time; (2) because of duplicity; (3) because the record failed to show when the defendant was tried and convicted. The court overruled this motion. The defendant at the trial asked the court to rule that the government must be confined to one date, and that date the first day of June, 1886; but the court refused so to rule. The government then offered evidence tending to show that the defendant kept intoxicating liquor for sale, in the tenement at Natick referred to in the complaint, during the time alleged; and 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 complaint sets out a single offense committed within one period from June 1, 1886, to June 25, 1886, including both days; and evidence that the defendant kept a nuisance during any part of the time alleged was competent. Com. v. Sheehan, infra.

The record of the trial justice before whom the complaint was tried, sufficiently shows that the defendant was convicted, and the time when he was tried and convicted. These are the only questions presented by the bill of exceptions. Exceptions overruled.

(143 Mass. 468)

COMMONWEALTH . SHEEHAN.

(Supreme Judicial Court of Massachusetts., Middlesex. January 31, 1887.) INTOXICATING LIQUORS-COMMON NUISANCE-COMPLAINT-DUPLICITY.

66

An allegation in a complaint that the defendant kept and maintained a common nuisance on the first day of August in the year of our Lord eighteen hundred and eighty-six, and on divers other days and times between that day and the third day of September," charges an offense committed during the single period commencing on said first day of August and ending on said third day of September. The clear meaning of the allegation is that the defendant kept the nuisance on the first day of August, and on divers other days and times between said day and the third day of September, including said third day of September; and the complaint charges but one offense, committed during a single period of time, and is not bad for duplicity.

Complaint for keeping a liquor nuisance. At the trial in the superior court before THOMPSON, J., the defendant moved to quash the complaint, (the substance of which appears in the opinion,) because the time therein stated of the commission of the offense was uncertain and indefinite, and because two times were therein stated. The court overruled the motion, which had also been made in the lower court.

The defendant requested that the evidence for the government be confined to the time first stated, and in the continuando not including September 3d, but the court, against the defendant's objection, permitted evidence to be given of the seizure of liquors made on September 3d, and the only evidence offered by the government was of that seizure. The jury returned a verdict of guilty, and the defendant alleged exceptions.

L. H. Wakefield, for defendant.

The case cannot be distinguished from Com. v. Adams, 1 Gray, 481; Com. v. Adams, 4 Gray, 27.

H. N. Shepard, Asst. Atty. Gen., for the Commonwealth.

The defendant's motion to quash was properly overruled. The complaint is in proper form, and duly charges the commission of the offense of keeping a liquor nuisance during a single period, beginning "on the first day of August," and ending "on the third day of September," and it is not bad for duplicity. Evidence of the keeping of such nuisance on either of these days named, or on any day between said days, would be admissible. Com. v.

Dunn, 111 Mass. 427; Com. v. Snow, 14 Gray, 20; Com. v. Wood, 4 Gray, 11; Com. v. Kerrissey, 141 Mass. 110; S. C. 4 N. E. Rep. 820.

BY THE COURT. The allegation that the defendant kept and maintained a common nuisance "on the first day of August in the year of our Lord eighteen hundred and eighty-six, and on divers other days and times between that day and the third day of September," charges an offense committed during the single period commencing on said first day of August, and ending on said third day of September, and including both of said days. Com. v. Dunn, 111 Mass. 426. The words following, "and on said third day of September," add nothing to the previous charge, and are unmeaning, but they do not charge a separate offense. The clear meaning of the allegation is that the defendant kept the nuisance on the first day of August, and on divers other days and times between said day and the third day of September, including said third day of September. The complaint charges but one offense committed during a single period of time, and is not bad for duplicity. Exceptions overruled.

(143 Mass. 467)

COMMONWEALTH v. KEEFE.

(Supreme Judicial Court of Massachusetts. Middlesex. January 31, 1887.) INTOXICATING LIQUORS-COMMON NUISANCE-COMPLAINT-MOTION TO QUASH.

A complaint containing an allegation that the defendant "did bring into said city of S. intoxicating liquor, with intent then and there, in said S., to sell the same himself, in violation of law," ex vi termini imports that the defendant was not transporting the liquor through the city to a place beyond, and is sufficient; and a motion to quash on the ground that the complaint does not set forth any offense known to the law, and does not follow the substance of the statute under which it was brought, is a formal objection, and cannot be made for the first time in the superior court upon appeal.

Complaint for the illegal transportation of intoxicating liquors through the city of Somerville. At the trial in the superior court before THOMPSON, J., before the jury was impaneled, the defendant filed a motion to quash the complaint, because it did not set forth any offense known to the law, and did not follow, in substance, section 17, c. 100, Pub. St., the section under which the said complaint was drawn. The court overruled the motion, the defendant then pleaded nolo contendere, and alleged exceptions to the ruling of the court on the motion to quash. The substance of the complaint is stated in the opinion.

D. F. Crane, for defendant.

The motion to quash was seasonably made, as it appertained to substance, and not to form. The exception is embodied in the enacting clause, which defines the offense. The exception must be negatived in the indictment. Com. v. Hart, 11 Cush. 130; Com. v. Maxwell, 2 Pick. 139; Com. v. Jennings, 121 Mass. 47.

H. N. Shepard, Asst. Atty. Gen., for the Commonwealth, cited Com. v. Doherty, 16 Mass. 13.

BY THE COURT. The motion to quash was rightly overruled. The allegation in the complaint that the defendant "did bring into said city of Somerville intoxicating liquor, to-wit, lager beer, with intent then and there, in said Somerville, to sell the same himself, in violation of law," ex vi termini import that he was not transporting the liquor through the city to a place beyond. The complaint gives a complete definition of the offense, and is suffisient. Besides, the objection is formal, and could not be made for the first time in the superior court. Com. v. Doherty, 116 Mass. 13.

Exceptions overruled.

(143 Mass. 462)

PROCTOR and another v. HARTIGAN.

(Supreme Judicial Court of Massachusetts. Suffolk. January 31, 1887.) ORDERS-CONDITIONAL ACCEPTANCE-AMBIGUOUS WORDS-PAROL EVIDENCE-ABSCONDING PAYEE.

A. brought an action of contract against B., upon an order drawn by C. upon the defendant B., upon which were the words, "to be paid out of the last payment;" "I accept this order, "-followed by the signature of B. Held, that it was competent for the defendant to introduce evidence of a contract between himself and C., and of the acts and conversations of the parties, at the time the acceptance was signed, to aid in the construction of the writing; the words "to be paid out of the last payment" in themselves being ambiguous, and, without some extrinsic explanation, unintelligible. Held, also, that evidence was admissible, on behalf of the defendant, to show that the meaning of the words "to be paid out of the last payment" meant, and were understood and agreed by the parties to mean, that the order was only to be paid out of the last payment to C. provided for in the contract, and that if C. did not fulfill his contract so that the last payment became due and payable, that the defendant would not be liable on said order. Held, also, that C. having absconded before his contract with B. was completed, so that the payment contemplated by the order in suit never became due, that B. was not liable upon the order.

Contract upon an order drawn by one James Walsh upon the defendant, and by the defendant accepted in words and figures as follows: "$500.

BOSTON, August 19, 1882. "Bartholomew J. Hartigan pay to the order of Proctor & Drummey five hundred dollars, value received, and charge the same to the account of "JAMES WALSH."

"To be paid out of the last payment." "I accept this order.

B. J. HARTIGAN.'

The defendant answered a general denial, and, further, that the acceptance was conditional, and related to the last payment to be made on a contract which, at the time of said acceptance, was in force between James Walsh, the maker of the order, and the defendant; that said Walsh never performed said contract; and that no last payment ever became due and payable to said Walsh, to which said order would apply. At the trial in the superior court, before BRIGHAM, C. J., the plaintiffs, without objection, put in evidence the said order, the signatures being admitted, and introduced evidence, which was uncontradicted, that, at the time that the said order was accepted, the defendant was owing to said Walsh the sum of at least $500, and that he afterwards paid Walsh that amount, and that that sum was the last payment actually made by the defendant to Walsh under said contract. The plaintiffs also showed by evidence which was not expressly or directly contradicted that, relying upon the acceptance of said order, they furnished to Walsh, for the defendant's building, lumber to the amount of $250 after said acceptance; and that, before said acceptance, they declined to furnish any more lumber for the building unless they had paid for what they had furnished, or an order was accepted by defendant. The plaintiffs also introduced evidence of a demand upon the defendant for payment of the amount of the order, made immediately after said Walsh defaulted in his contract aforesaid, and again after said building was completed by defendant. The defendant was permitted, against the objection and exception of the plaintiffs, to introduce evidence tending to prove that the meaning of the words on the order, "to be paid out of the last payment," meant, and were understood and agreed by the parties to mean, that the order was only to be paid out of the fifth payment to Walsh, provided for in the contract, and that if Walsh did not fulfill his contract so that said fifth payment became due and payable, that the defendant would not be liable to the plaintiffs on said order. The evidence upon this point was conflicting. The defendant was also permitted, against the objec

tion and exception of the plaintiffs, to introduce evidence that the defendant's architect, Lafield, told the plaintiff Proctor to write into the order the words, "to be paid out of the last payment under the contract;" that Proctor took the order, and wrote in the words, "to be paid out of the last payment," and returned the order to Lafield, saying that there was not room to write the rest, and that would do just as well, and that Lafield and the defendant assented to it. It was not controverted that said Walsh absconded about the first of October, and did not complete the building according to the contract. It was also conceded that, at the time Walsh abandoned the work, the defendant had paid him in all $1,300; the last $500 of it having been paid after the acceptance of said order, and that that was the last payment that ever became due to Walsh from the defendant, or that was paid to him on account of said contract; that the entire contract price for said building, as by said contract, was $2,700. It was also in evidence, uncontroverted, that after Walsh had absconded, and abandoned the contract, the plaintiffs went to the defendant, and offered to complete the building according to Walsh's contract for the sum of $1,200,-but whether plaintiffs offered to apply the order in suit as a payment of $500 towards said $1,200 was in dispute,-which offer the defendant declined, and completed the building by hiring the work done by days' work. The building was so completed by the defendant, and has since been occupied by him.

The plaintiffs requested the court to charge the jury as follows: First. The order is evidence of an assignment by Walsh of so much of his money, in the hands of the defendant, to the plaintiffs, and the acceptance by the defendant is evidence that he would owe so much money, and this is a direct contract between the defendant and the plaintiffs to pay a certain sum at a time after the acceptance. Second. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; and, if payment was due to Walsh after the acceptance which he received, then the defendant is liable. Third. The direction to be paid out of the last payment is a designation of the funds out of which the payment was to be made; or, if a payment was due to Walsh after that, that must be regarded as the last payment to Walsh, unless another payment actually became due, and the defendant would be liable upon the acceptance of the order to the plaintiffs, and would be entitled to deduct the amount of the order from said payment. Fourth. Even if this was a part of the order, it was by no means a condition precedent to the right of action by the plaintiffs that Walsh should complete the contract personally, and the defendant could complete it; and, after taking out his expenses in so doing, he would be bound to apply the balance in the same manner as he would have done had Walsh completed the contract; and in completing it himself he became liable to follow the contract, and not vary it, and use reasonable care for the benefit of the plaintiffs. Fifth. If the jury should find that, by the terms of the order, the money was to be paid out of the last payment under the contract existing between Walsh and Hartigan, and also find that Hartigan, in completing the building after Walsh left, did not follow the contract, but varied it, he abandoned the contract; and if, after the giving of the order to the plaintiffs, he paid Walsh the sum equal to the amount of the order, and it was the last payment he paid him, this was the last payment under the said contract, and he should be held liable. Sixth. It is immaterial whether Walsh completed the contract, or whether the defendant completed it. If, after this order was accepted, there was at any time the sum of $500, or any other sum, due Walsh from the defendant under the contract, the defendant had no right to pay it, or any part of it, to Walsh, with the knowledge and consent of the plaintiffs, but that it was his duty to retain the amount of the order on defendant's final or last settlement with and payment to Walsh, and pay the same to plaintiffs; that the defendt, after accepting the said order, had no right to make any advance to Walsh