lected. See, also, Centrello's Case, 232 Mass. 456, 122 N. E. 560, and cases cited. said Bancroft was operating the automobile Am. St. Rep. 648, and the cases therein colin the course of his employment as a salesman of the defendant under such circumstances that the defendant is liable for his negligence at that time." Upon the question of the legal relationship between Bancroft and the defendant, the facts in their aspect most favorable to the plaintiff, taken from the examination and cross-examination of Bancroft, in substance are that he had been a traveling salesman The exceptions must be sustained and judgment entered for the defendant. So ordered. STEINER v. SCHRANK. for the defendant company since August, (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 20, 1925.) Chattel mortgages 263-Mortgagee, purchasing property at foreclosure, held entitled to profits on resale. 1923, and was such at the trial in March, 1925; that "he had no regular hours to work; his time is his own and the trade that he can see any time at all during the 24 hours a day, he tries to see them"; that he owned Where defendant, as mortgagee, foreclosed the automobile that was in the collision, and for admitted default mortgage of personal propused it in his business as traveling sales-erty owned subject to mortgage by plaintiff, man; that his sole business was to sell biscuits for the defendant; that he was paid a salary and commission and the expense of operating the car; that he always carried a sample case and advertisements in the back of his Ford coupé car, and they were in the car at the time of the accident. and at foreclosure, attended by plaintiff, purchased property for face of mortgage, responsibility of defendant to plaintiff ended when foreclosure sale was completed; defendant becoming absolute owner of property and entitled to profit on resale thereof. Appeal from Municipal Court of Boston, Appellate Division. Action of contract by Henry Steiner against Morris Schrank to recover, as money had and received to plaintiff's use, the proceeds of a sum remaining in hands of defendant after foreclosure of mortgage and subsequent sale of mortgaged premises. From an order of the municipal court, dismissing the report, plaintiff appeals. Af G. H. Mellen and H. P. L. Partridge, both of Boston, for plaintiff. M. B. Holsberg, of Boston, for defendant. PER CURIAM. The defendant as mortgagee foreclosed for admitted default in its conditions a mortgage of personal property owned subject to the mortgage by the plaintiff, and at the foreclosure sale, attended by the plaintiff, purchased the property for the face of the mortgage. Three days later he sold the property at a profit. It further appeared, in substance, that about 1 o'clock on the day of the accident he drove from Leominster to an Elks' Field Day picnic at Fort Pond, in Lancaster, and remained there until around 4 o'clock, when he went to a weekly sales meeting in Fitchburg; that after the sales meeting, at a quarter to 5, he started in the car with a friend whom he had found at the picnic, to return to Fort Pond; and that the accident hap-firmed. pened on the road between Lunenburg and the pond at Lancaster. It further appeared, in substance, that "he did selling until he got to the Field Day"; that he "was going back to see some of his trade"; that "he didn't have an appointment with any one in particular; didn't expect to see any individual, but as a whole expected to see some of his trade there; he intended to do business with them if he should see them.” On the above facts it is plain Bancroft was his own master in respect to the time he should devote to the business of the defendant, and to the place within certain designat- The plaintiff states that the "only question ed territory where he should solicit sales. It in this case is whether the defendant (the is also plain that it was his duty and not former mortgagee) must account to the plainthat of the defendant to register the auto- tiff for the profit." There is no contention mobile and obtain a license to operate it. that the foreclosure sale was not fairly conThe defendant had no right on the reported ducted, that the price thereby obtained was facts to direct the manner in which Bancroft inadequate, or that the defendant did not should control his car. It assumed no obli- have a right to purchase at the foreclosure. gation to keep the car in repair other than There was no surplus in the foreclosure sale. is involved in its agreement to pay the ex- Indeed, the price obtained was not large pense of operating it, or, as the plaintiff puts enough to pay the mortgage debt and the exit in his brief, to pay "so much per mile for penses of the foreclosure. The responsibility the number of miles that he [Bancroft] oper- of the defendant to the plaintiff ended when ated said car for them in connection with a foreclosure sale under such circumstances his employment." In principle the case is had been completed. His trust relation then governed by Shepard v. Jacobs, 204 Mass. ceased to the mortgagor. The defendant be110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 | came the absolute owner by purchase at the (149 N.E.) foreclosure sale and was entitled to whatev- [ for same cause of action," without more, does er profit he was able to make subsequently. McCarthy v. Simon, 247 Mass. 514, 521, 142 N. E. 806. Order dismissing report affirmed. SHAPIRO v. LYON et al. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 27, 1925.) not warrant a finding that agreement was an adjudication of cause, or anything more than evidence of purpose to abandon suit, as distinguished from intent that agreement should operate as full release. 7. Release 37-Agreement, following action against concurrent tort-feasor, not to bring further suit, held to have no greater effect than covenant not to prosecute further a pending action. In action by administratrix, under G. L. c. I. Negligence 136(18)—Negligent speed of 229, §§ 1, 5, for death of intestate while drivautomobile driver held for jury. In action by administratrix under G. L. c. 229, §§ 1, 5, for death of intestate while driving with defendant, evidence as to excessive speed on rainy evening held sufficient to take case to jury. 2. Death 14 (2)—Administratrix need only prove ordinary negligence by defendant. In action for death of intestate, under G. L. c. 229, §§ 1, 5, though intestate was riding as a guest in defendant's automobile, administratrix need only prove ordinary negligence by defendant, not gross negligence, as would have been required, had action been by intestate, or by administratrix, to recover for conscious suffering of intestate. 3. Death 75-Evidence held insufficient to prove contributory negligence. ing with defendant, agreement by administra- 221⁄2-Operation of motor vehicle for day without lawful registration or permit to use temporary number plates held unlawful. Operation of motor vehicle for a day, without lawful registration plates and without permit of registrar authorizing use of temporary In action by administratrix under G. L. c. number plates, in violation of G. L. c. 90, § 6, 229, §§ 1, 5, for death of intestate while riding was unlawful; there being no valid distinction with defendant, evidence held insufficient to sup-between use of highway without number plates port defense of contributory negligence. where, apart from St. 1914, c. 553, § 1 (now G. L. c. 231, § 85), there was evidence that intestate 5. Appeal and error 1056(1)—Exclusion of evidence of another action between plaintiff and concurrent tort-feasor, and its disposition by agreement not to further sue, held not harmful error. Refusal to admit evidence of another action brought against party concurrently negligent with defendant in causing death of plaintiff's intestate, and of its disposition by filing agreement, "Neither party; no further suit to be brought for same cause of action," was not harmful error, where there was no evidence that plaintiff received anything of value as consideration for agreement. 6. Release 7-Action, followed by agreement that no further suit was to be brought, held not to warrant finding that agreement was adjudication of cause. and use of unauthorized plates, making it unnecessary to determine whether kind of secondary evidence to prove registration of motor vehicle was rightly refused. 9. Evidence 359 (1)—Evidence relating to photographs taken five days after accident properly admitted. In action by administratrix, under G. L. c. 229, §§ 1, 5, for death of intestate while riding with defendant, evidence relating to photographs taken five days after accident was properly received, where jury, under instructions given, could find reasonably on the evidence that they accurately pictured condition and appearance of automobile at time of accident. ter County; W. H. Whiting, Judge. Exceptions from Superior Court, Worces Action of tort by Emma Shapiro, administratrix of the estate of Manahem M. Shapiro, deceased, against Abraham Lyon and others, doing business as Lyon Bros. Verdict for plaintiff, and defendants bring exceptions. Exceptions overruled. C. C. Milton, of Worcester (J. Talamo, of PIERCE, J. This is an action of tort brought by an administratrix, under G.. L. c. 229, §§ 1, 5, to recover for the benefit of An action, followed by filing of agreement, the widow and next of kin of her intestate "Neither party; no further suit to be brought damages which are alleged to have been For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes caused by the negligence of Meyer A. Lyon the weather. Although the intestate was a while engaged in the business of all the guest, his administratrix, in an action for defendants. The answer is a general denial death under G. L. c. 229, was bound to prove and the affirmative defense of contributory only ordinary negligence of the defendants. negligence. At the trial to a jury there was Sughrue v. Booth, 231 Mass. 538, 121 N. E. a verdict for the plaintiff. 432; and not gross negligence of the defendants as would have been required had the action been by the intestate, or by the administratrix to recover for the conscious suffering of the intestate. Burke v. Cook, 246 Mass. 518, 141 N. E. 585; Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307. The evidence in the case was insufficient to support the defense of contributory negligence. Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401; Powers v. Loring, 231 Mass. 458, 121 N. E. 425. Apart from the Statute of 1914, c. 553, § 1, now G. L. c. 231, §. 85, there was evidence that the intestate was in the exercise of due care. The pertinent facts, taken largely from the testimony of the defendant Meyer A. Lyon, would have warranted the jury finding that on July 29, 1921, Meyer A. Lyon, a carpenter in the firm of Lyon Bros., with a place of business in Worcester, Mass., was operating a Ford coupé in Norwich, Conn., soliciting orders for the retail trade of his firm; that he left Norwich for Worcester at about 5 p. m., driving the automobile and taking as his guests a Mr. Silverman and the intestate, Shapiro; that Norwich is about 60 miles from Worcester; that, when they left, the weather was pleasant, but at Webster it became dark and was raining a mist; The record discloses that the truck with that between Webster and Worcester it rain- which the Ford coupé collided was owned ed hard and when they arrived on South- by, and at the time of the accident was unbridge street near the place of the accident, der the immediate supervision of, one Richbetween 8:30 and 8:45 p. m., daylight saving ard J. Cronin; that on September 17, 1921, time, it was raining very hard and the clouds the date of the writ in this action, the adhad become "suddenly dark” and black; that ministratrix brought an action against the the car was driven along Southbridge street | said Cronin; that the form of the writ, the at the rate of 25 to 35 miles an hour "inside ad damnum and the declaration in each aca thickly settled or business district"; that tion is identical, save in the name of the dethe Ford coupé came in collision with the fendant and the return day. rear of one of two five-ton Mack trucks The record in the Cronin action shows his which were standing, one in front of the oth- appearance, answer, and the filing, on Noer, on the right-hand side of the street, with-vember 6, 1924, of the agreement which reads out rear red lights; that the Ford car was as follows: damaged almost beyond repair and the intestate instantly killed. "Emma Shapiro, Adm'x, v. Richard J. Cronin. "Neither Party. Lyon testified, in substance, that the front registration plate of the Ford car had been that the following entry may be made: Neither "In the above-entitled case it is hereby agreed lost on July 28, 1921, and that he had, or same cause of action.'" had caused to be put in its place, a "substi-party; no further suit to be brought for the tute paper plate"; and that there had been no application to the registrar of motor The brief of the defendants states that the are: (1) "Whether the evidence of a release given by the plaintiff to a concurrent tort-feasor after a suit had been brought by her against him seeking to recover for the death of her intestate was admissible in the present action;" and (2) "whether or not the defendants by attaching a pasteboard number plate to the front of their automobile after losing the same, without first securing the permission from the registrar of motor vehicles, made it an unregistered motor vehicle." vehicles for a new number plate, or for a question raised by the bill of exceptions permit to place a temporary number plate upon his vehicle, as is provided by G. L. c. 90, § 6, shall be done in case a plate is lost. He further testified, in substance, that the registration number of the Ford coupé car was 37708; that when demanded he showed the police the registration certificate, No. 37710, of another of the firm's motor vehicles; that the registration certificate of the car which was operated on the night of the accident was lost or mislaid and that he was unable to find or produce it at the trial. There was evidence which warranted a finding that the intestate, near Worcester on the state road, asked Lyon to stop going so fast, because it was raining and raining hard at that time and place. [1-3] Upon the foregoing facts the judge could not have ruled rightly, as requested, that the plaintiff was not entitled to recover. The evidence warranted a finding that the automobile was driven at an excessive rate of speed, considering the time, the place and [4, 5] A release of a joint tort-feasor or of an independent tort-feasor, whose negligent acts operate concurrently to the injury of another, is an affirmative defense which must be set up in the answer of such other defendants if they would rely upon it as a defense to an action against them. Herschman v. Justices of the Municipal Court, 220 Mass. 137, 141, 107 N. E. 543. The failure to plead the alleged release in itself justi (149 N.E.) fied the refusal of the judge to admit evi-, without number plates and use of unauthordence to establish a release. Apart from ized number plates; the offense is but a difthe absence of pleading, there was no harm- ference in degree. It therefore is unnecesful error in the refusal to receive testimony sary to determine whether the kind of secwhich would establish the fact that the ad- ondary evidence offered in proof of the fact ministratrix had brought another action that the Ford coupé was registered was reagainst the owner of the truck, whose acts fused rightly. were alleged to be negligent, and concurrently operating with the negligent acts of the defendants had resulted in the death of the intestate, and which would establish further that the administratrix had thereafter for reasons which the record does not disclose agreed to an entry of: [9] Assuming that the automobile was registered, it is admitted that the registration plates had not been displayed on the front and rear of the motor vehicle for a day be fore the accident and were not there at the time of the accident. In this regard the requests of the defendants were refused right "Neither party; no further suit to be brought ly, and the charge was without error. for the same cause of action." [6, 7] An action followed by the filing of such an agreement without more would not warrant a finding that the agreement was an adjudication of the cause, or anything more than evidence of the purpose of the parties thereto to abandon that suit, as distinguished from an intent that the agreement should operate as a full release. Marsh v. Hammond, 11 Allen (Mass.) 483; Matheson v. O'Kane, 211 Mass. 91, 95, 97 N. E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267; White v. Beverly Building Association, 221 Mass. 15, 17, 108 N. E. 921. See Brown v. Cambridge, 3 Allen (Mass.) 474; Johnson v. Von Scholley, 218 Mass. 454, 106 N. E. 17. Such an agreement, as the defendant admitted at the trial, has no greater effect than a covenant not to prosecute further a pending action. It does not affect the liability or culpability of the defendant. Nugent v. Boston Consolidated Gas Co., 238 Mass. 221, 237, 130 N. E. 488; Johnson v. Von Scholley, supra. And it does not inure to the benefit of any other person or persons than the parties to it, save in so far as they are benefited by any consideration received by the injured party, the amount or value of which operates as a payment pro tanto to them. O'Neil v. National Oil Co., 231 Mass. 20, 29, 120 N. E. 107; Dwy v. Connecticut Co., 89 Conn. 74, 92 A. 883, L. R. A. 1915E, 800, Ann. Cas. 1918D, 270; City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271. There being no evidence or offer of proof that the administratrix received anything of value as a consideration for the execution of the agreement, the defendants were not harmed by the exclusion of proof of the institution of the action against Cronin and of its disposition by the entry of the agreement of "Neither party." [8] The operation of the motor vehicle of the defendant for a day without lawful registration plates and without a permit of the registrar of motor vehicles authorizing the use of temporary number plates, in violation of the provision of G. L. c. 90, § 6, was unlawful. No valid distinction in lawful use of the highway is perceived between use There was no error in the reception of the evidence relating to the photographs taken five days after the accident. The jury under the instructions given could find reasonably upon the evidence that they accurately pictured the condition and appearance of the automobile at the time of the accident. Morrissey v. Connecticut Valley Street Railway, 233 Mass. 554, 557, 124 N. E. 435; Randall v. Peerless Motor Car Co., 212 Mass. 352, 385, 99 N. E. 221. All questions argued by the defendant have been considered and no reversible error appears in the conduct of the trial. Exceptions overruled. PIERCE, J. This is an appeal of the defendant from a final decree of the superior court, which established the boundaries "in a right of driveway" between the north line of the described premises of the plaintiff and the north line of the passageway, drawn in a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 149 N.E.-35 the basis of the suggestion of the master RECORD v. ROYAL INS. CO., Limited. Worcester. Nov. 24, 1925.) straight line from the most southerly part of the defendant's store building near Elm street, westerly to land formerly owned by one Michael Calnan; as also from so much of the decree as ordered that the defendant "be perpetually restrained and enjoined from building and maintaining any buildings or other obstructions in or upon the plaintiff's right of way over the land of the defendant between the above-described line and the northerly line of the plaintiff's premises." The bill, by reference to transcripts of re-(Supreme Judicial Court of Massachusetts. corded deeds, traces the titles of the adjacent premises of the plaintiff and defendant on Elm street, Westfield, to a common grantor, and alleges the right of the plaintiff in a driveway across the south side of the premises owned by the defendant. The bill charg- ranties," provided that use of automobile inWhere theft policy, under the caption "Wares that the defendant has without right ensured would be private and for pleasure, use of tered upon the described driveway, has con- it in business of insured's employers held neistructed a "building or barn" thereon, and ther private nor for pleasure within policy, but thereby has obstructed the plaintiff in the free use of the driveway. Among other prayers the bill seeks an injunction ordering the defendant to remove the building or barn. The answer denied the allegations of the bill, asking no affirmative relief by cross-bill or otherwise. After issue joined, the case was referred to a master pursuant to a rule "to hear the parties, to examine their vouchers and evidence and make report of the facts thereof to the court." The master heard the parties and their witnesses, found the plaintiff had a right in a driveway over the land of the defendant within lines specifically determined, and further found that the driveway was obstructed by the unlawful intrusion of a house and barn to the extent pointed out in the final decree. The defendant in support of his appeal does not contend that the 1. Insurance 329-Use of automobile held neither private nor for pleasure within policy. for business purposes in service of employers. 2. Insurance 329 - Automobile policy held void because of use other than contemplated therein. Where theft policy was issued on insured's statement that his uses of automobile were private and for pleasure, it was immaterial whether stipulation was made with intent to deceive or whether risk of loss was increased by employing automobile in business of insured's employers, policy thereby becoming void, G. L. c. 175, § 186, providing that no oral warranty should defeat policy, being inapplicable. Exceptions from Superior Court, Worcester County; Richard W. Irwin, Judge. Action of contract by John W. Record ited, to recover for loss by theft of plainagainst the Royal Insurance Company, Limtiff's automoblie. From an order denying defendant's motion for verdict, it excepts. Exceptions sustained and judgment for defendant. F. B. Spellman, of Worcester, for plaintiff. decree does not conform to the frame and prayer of the bill or is not supported by the findings of the master, but contends that it should be modified in such a way as to give force to the suggestion of the master that the plaintiff's sidewalk where it encroaches on the driveway near the westerly end of his CARROLL, J. This is an action of conhotel building should be lowered so that it tract to recover under a theft and insurance shall be no higher in elevation than the side-policy for the loss by theft of the plaintiff's walk of the defendant at any given point automobile. The automobile was stolen in directly opposite; and further, that the most westerly front steps on the plaintiff's tenement block, which project beyond the line of the driveway 34 inches, should be set back to the line of the passageway. December, 1920. The term of the policy was to begin July 1, 1920, and to end July 1, 1921. The policy provided under the caption "Warranties": "The following are statements of facts known to and warrantThese suggestions of the master were not ed by the Assured to be true, and this polrelevant to the issue presented by the plead- icy is issued by the Company relying upon ings, and there was nothing in the rule that the truth thereof;" the statement under numjustified the findings of fact, which would ber 4 being "The uses to which the automoperhaps be material in support of a cross-bile described are and will be put, are pribill, but were entirely immaterial as a defense in the issue raised by the bill and answer. It follows that the confirmation of the report did not establish the facts which were vate and pleasure." The plaintiff testified that he was a collector and salesman employed by one Strogoff, a clothing dealer, and was so employed when |