can be laid before the work is completed, we do not think that that fact is decisive of the construction of St. 1894, c. 288, § 2

The respondents have not raised the objection that a writ of certiorari is not the proper remely in the case at bar, and, by agreeing to the facts, have waived the objection that on a petition for certiorari the facts found by them cannot be controverted. Ward v. Aldermen of Newton, 63 N. E. 1064; Janvrin v. Poole, Id. We therefore treat these objections as waived.

1. Plaintiffs, who were agents of a foreign house, entered into an oral agreement for the sale of goods without disclosing their principal, which contract was afterward reduced to writing, reciting the sale, and that plaintiffs had cabled their principals as to the quality of the goods, and that plaintiffs were acting as agents, and not personally liable for any of the risks of the importation. Held, in an action for the refusal of defendant to take the goods because of their inferior quality, that the written contract could not be varied by proof that plaintiffs had a letter of credit with their principal, and that the arrangement with defendant was to lend such credit to the latter, and that the defendant on the receipt of the goods should pay plaintiffs the contract price as compensation for the loan of credit and services in the transaction.

2. A written contract for the sale of lemons by plaintiff, as agent of a foreign house, which does not recite that plaintiff is agent for such principal, but recites that the latter has been cabled that the quality must be first-class, and provides that plaintiff is simply acting as agent, and that all risks of importation are assumed by the purchaser, cannot be construed as showing that plaintiff is agent for the purchaser.

3. The failure of goods shipped from a foreign country to correspond in quality with the description in the contract of sale was not a risk "incident to the importation," assumed in the contract by the purchaser; such risks being confined to those subsequent to the selection of the goods in the foreign country.

Exceptions from superior court, Suffolk county; John H. Hardy, Judge.

Action by Maynard and another against Weeks and others for the refusal of defendants to receive goods under a contract. Judgment for plaintiffs, and defendants bring exceptions. Exceptions sustained.

Geo. R. Nutter, John G. Palfrey, and Brandeis, Dunbar & Nutter, for plaintiffs. Morse & Lane, for defendants.

BARKER, J. The plaintiffs were commission merchants at Boston, and sold lemons upon a commission, as agents of a Malaga house. The defendants were dealers in Boston. The plaintiffs, without disclosing the name of their principal, solicited an order for lemons from the defendants, and, after

personal interviews and talks over the telephone, an oral order was given to the plaintifs, and cabled by them to their principal, and thereupon the plaintiffs wrote to the defendants as follows: "We inclose contract in duplicate. Kindly sign duplicate and return to us. Thanking you for the order, and trusting that it may be the forerunner of a larger business with your good selves, we are," etc. The duplicate inclosures in this letter were of the following tenor: Boston, Sept. 15, 1900. Messrs. Foster, Weeks & Co., Boston. Mass.-Dear Sirs: Malaga lemons. We confirm sale made to you, viz., 600 boxes, half 300 size, half 300 size. Price $2.621 per box in bond, ex dock Boston. Shipment about 20th inst. In our cable to Messrs. Frederico Gross & Co., we stated that quality must be strictly choice and free from spots. It is understood that we act simply as agents in this transaction, and that all risks incident to the importation are yours, and not ours. Payment net cash on arrival. Yours very truly, Maynard & Child." On receipt of the letter inclosing the duplicate contracts, the defendants asked by telephone what the contract meant, and, upon receiving an answer, signed the contract. The lemons arrived in Boston, and upon examination of them the defendants refused to accept them, and declined to pay the plaintiffs anything. It is conceded by the plaintiffs that the lemons never answered the description stated in the contract. The plaintiffs' evidence tended to show that they had with Frederico Gross & Co. a letter of credit, issued by Boston bankers, authorizing Gross & Co. to draw for the price of the lemons, and that their arrangement with the defendants was to lend to the latter the use of this credit, to the extent of the price of the lemons, until their arrival at the dock in Boston, and that, upon such arrival of whatever lemons should be shipped upon the order, the defendants were to pay to the plaintiffs the price mentioned in the contract, as compensation for their loan of the credit, and their services to the defendants in the transaction. After the defendants' refusal to accept the lemons, they were sold at auction, and the plaintiffs seek to recover the difference between the sum realized upon the sale and the price stipulated in the contract.

We think that the rights of the parties must be adjusted upon the terms of the written contract. Upon those terms, the plaintiffs were not agents of the defendants, nor lenders to them of funds represented by the contract price; and no other obligation was imposed upon the defendants than to accept and pay for the lemons on their arrival, if, when sold at Malaga, they corresponded to the description given in the written contract of the goods sold. The risk that the goods. when sold in Malaga should not correspond to that description was not a risk "incident to the importation," within the terms of the written contract. If the goods had been of the description stated in the contract when

sold in Malaga, all subsequent risks affecting them would have been "risks incident to the importation," and the defendants would have been bound to accept and pay for them on arrival, notwithstanding subsequent deterioration for any cause. As they were not of that description when sold, the defendants are not liable to the plaintiffs upon the contract. The ordering of the verdict for the plaintiffs was wrong.

Exceptions sustained.

(181 Mass. 387)

KINGMAN v. LYNN & B. R. CO. (Supreme Judicial Court of Massachusetts. Middlesex. May 21, 1902.) CARRIERS-STREET CARS-RING IN FLOOR-INJURY TO PASSENGER-NEGLIGENCE OF COM

PANY-EVIDENCE-ADMISSIBILITY.

1. Evidence is admissible in an action against a street railway company by a passenger injured by catching her foot in a ring in the floor of the car that the ring was standing erect immediately after the accident, and, on being pushed down, would rise and remain upright on the starting of the car, as such evidence tends to show that the ring was in such condition and operated in such manner when the car left the barn, some time before, which would charge the company with notice of the defect, or show negligence on the part of the conductor in failing to discover its condition.

2. Where the testimony of a witness on cross-examination is inconsistent with his testimony in chief, his testimony should not be stricken out, but should be submitted to the jury, with instructions that it is inconsistent with itself.

3. A street car company is negligent in allowing a ring in the floor of its car to get into and remain in such a condition that it rises when the car starts, and remains standing unless replaced, even though the builder of the car is reputable, and the ring is a usual device.

Exceptions from superior court, Middlesex county; Henry N. Sheldon, Judge.

Action by one Kingman against the Lynn & Boston Railroad Company for an injury to plaintiff while a passenger in defendant's car by catching her foot in a ring in the floor of a car. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

F. S. Hesseltine, for plaintiff, H. E. Hurlbut and S. B. Darling, for defendant.

BARKER, J. After a verdict for the plaintiff, the case is here upon the defendant's exceptions.

1. The first three exceptions are to the admission of the testimony of the plaintiff and two other passengers present at the accident that the ring in which the plaintiff testified that she caught her foot was standing erect immediately after the accident, and was then pushed down by another passenger with an umbrella, and that repeatedly thereafter the same ring, whenever the car started after a stop, rose and remained upright until pushed down by some passenger or by the conductor. The evidence was competent. There was no reason to infer

that anything about the car was different at the time to which the testimony referred from what it had been when the car left the barn after its morning inspection. If during the time testified to the ring rose frequently as the car started, and remained up until pushed down, this tended to show that it had been doing the like since its use on that day began. Knowingly to use a car in that condition was negligence on the part of the carrier, and the evidence was competent to show that the car had been in fact in that condition for so long a time before the plaintiff became a passenger that the defendant should be charged with knowledge of the dangerous condition, or with negligence on the part of the conductor in not ascertaining the danger.

2. The fourth exception is to the refusal to strike out all the testimony of the exconductor, called in rebuttal. It is not contended that his evidence upon direct examination was incompetent, but that his whole testimony shows that he was speaking of occasional occurrences only, and not of a general or ruling practice. The court was right in ruling that the testimony was inconsistent with itself, and in leaving the jury to deal with it in view of the inconsistency.

3. As above stated, in the testimony of the first three witnesses as to the action of the ring at the time of and immediately after the accident there was evidence which would warrant the jury in finding that the defendant and its servants were negligent. However reputable the builder from whom the car had been bought, and however usual the particular device of the ring, if the device was allowed to get into and remain in a condition which usually raised it when the car started, it was negligence not to discover and remedy that condition. Exceptions overruled.

(181 Mass. 498)

ELDRED et al. v. DAVIS et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1902.)

REGISTRATION OF TITLE-EVIDENCE.

At the time of his death A. owned an undivided half of certain real estate. By his will he bequeathed to B., who owned the other half, the use and income of the real estate during his life, and at his death to testator's children, and to the issue of any deceased children. Testator left four sons, including B., one daughter, and the children of a de ceased daughter. Thereafter C., one of the sons, died leaving a widow and a so-called "adopted daughter," but who was not legally adopted. C., by his will, gave his wife onethird of his property and the use and income such life interest, he gave one-third to such of the remainder during her life. Subject to adopted daughter and one-third to his nearest blood relations then living. Thereafter B. obtained deeds from all the living heirs of A., conveying all their interest in the real estate described in A.'s will. B. devised all his real estate to petitioners, and they thereafter pro

cured deeds from the widow and adopted daughter of C. of all their interest in such real estate. Held, that petitioners owned the entire interest in such real estate, whether the interest of the heirs of A. was acquired by inheritance or as devisees under the wills of A. and C.

Exceptions from superior court, Suffolk county; Davis, Judge.

Petition by Charles H. Eldred and others against John W. Davis, Charles H. Swan, and others, for registration of title. From certain rulings and refusal to rule by the court at the trial, defendants bring exceptions. Exceptions overruled.

The following is the bill of exceptions:

"In this case the court found the following facts: One undivided half of the title to the premises claimed by the petitioners was, at the time of his death, in William Eldred, who died at Falmouth, testate, between November, 1859, and March, 1860, leaving as his heirs at law four sons, one daughter, and the children of a deceased daughter. Title to the other undivided half was, at the time of William's death, in his son Lorenzo. Under the third clause of the will of William Eldred, the respondents, or those under whom they claim, received a pecuniary legacy of fifty dollars each. The eighth item in the will of said William Eldred, duly probated in the county of Barnstable, was as follows: 'Eighth. I give and bequeath to my son Lorenzo Eldred the use, income, and improvement of all my real estate during his natural life, and at his death to my children and to the issue of any deceased child.' Frederick A. Eldred, one of the children of said William, died in Worcester, March 14, 1874, testate, leaving a widow, Mary A. Eldred, a so-called adopted daughter, Jennie L. Minor, who was not, however, legally adopted, and as his heirs at law three brothers and a sister, and the children of a deceased sister. Frederick A Eldred's will, duly probated at Worcester on April 7, 1874, was as follows: (1) My will is that all my just debts, monuments for my grave, etc., be paid out of my estate. (2) I give, devise, and bequeath to my beloved wife onethird part of all my property, whether real, personal, or mixed, to have and to hold the same to my beloved wife, Mary A. Eldred, and her heirs, forever. I also give, devise, and bequeath to my wife, Mary A. Eldred, the use, improvement, and income of all the rest of my property for and during her natural life with the exception of my rights in my father's estate, and on condition that she take good and proper care of my adopted daughter, Jennie Eldred. (3) I give, devise, and bequeath to Jennie L. Eldred, my adopted daughter, at the death of my said wife, one-third part of all the remaining property, and in 'case of the decease of said Jennie L. Eldred the property then remaining to be divided equally between my nearest blood relations then living. (4) I give, devise, and bequeath at the death of my said wife one-third

part of the property to my nearest blood relations then living. (5) I nominate and appoint my wife, Mary A. Eldred, executrix of this my last will and testament, giving and granting her full power in the settlement of my will; and, in case of her decease or declining the trust, I grant full power to any administrator who may be appointed with the will annexed to settle my estate in as full and complete a manner as my executrix is authorized to do, with power to the executrix or administrator to sell any or all my property either at private sale or public auction, as they might think best.' After the death of Frederick, Lorenzo Eldred procured deeds from all the living heirs of his father, including the only heirs of two grandchildren, who had deceased. These deeds were all in the same form of limited warranty, and the description in each was as follows: 'All my right, title, and interest to certain real estate situate in Falmouth aforesaid, as contained in the last will and testament of William Eldred, late of Falmouth, made and signed the 18th day of November, 1859; it being the eighth and last item of that will, which reads as follows: "(8) I give and bequeath to my son Lorenzo Eldred the use, income, and improvement of all my real estate during his natural life, and at his decease to my children and to the issue of any deceased child."' Lorenzo Eldred died at Falmouth, October 18, 1888, testate, devising all his real estate to the petitioners, and on July 3, 1893, the petitioners procured from Mary A. Eldred and Jennie L. Minor a deed in which exactly the same description is used as in the above-mentioned deeds to Lorenzo, there being added at the end of the description, following the quotation from the will of William Eldred: 'Our interest, if any, being derived from the will of Frederick A. Eldred, late of Worcester, Mass., intending hereby to release all our interest in any real estate in said Falmouth in which said William Eldred had any interest at the time of his death.' November 12, 1897, the petitioners procured a further deed from Mary A. Eldred, executrix of the will of Frederick A. Eldred, as follows: "To all whom these presents shall come, greeting: Whereas, in and by the fifth clause of the will of my late husband, Frederick A. Eldred, of Worcester, in the county of Worcester and commonwealth of Massachusetts, I was authorized and empowered, as executrix of said will, to sell any and all the property of the said deceased, either at private sale or public auction, as I might think best; and whereas, the said Frederick A. Eldred, at the time of his decease, owned in common, and undivided with others, certain real estate in the town of Falmouth, in the county of Barnstable, and commonwealth aforesaid, to which he was entitled under the will of his father, William Eldred, of said Falmouth, deceased: Now, therefore, this instrument witnesseth that I, Mary A. Eldred, of said Worcester, in consideration of one dollar, and other good

and valuable considerations, paid by Charles H. Eldred and Mercy F. Eldred, both of said Falmouth, the receipt of all of which is hereby acknowledged, do hereby, in execution of the powers conferred on me by said will and of every other power me thereto enabling, give, grant, bargain, sell, and convey unto the said Charles H. Eldred and Mercy F. Eldred any and all real estate situated in said town of Falmouth which, at the time of his decease, said Frederick A. Eldred owned or was in any way entitled to, or to which he had any claim.' The inventory of Frederick A. Eldred's estate filed July 1, 1874, showed $20,686.20 personal property, of which $7,000 was stock in a furnishing store in which the said Frederick was engaged in business at the time of his death, and $28,500 in real estate situated in Worcester. No interest in real estate at Falmouth was mentioned. The executrix's first account, allowed February 6, 1877, showed payment of debts and charges to the amount of $8,692.84, and a balance of cash on hand of $15,518.57. The second account, allowed November 17, 1891, showed losses on investment, widow's allowance, and legal expenses of $2,235, and a balance on hand of $15,688.57. The third account, filed December 3, 1901, showed loss on inventory value on personal property of $33.57, and cash on hand of $13,433.57, some of which is invested in mortgages, standing in the name of Mary A. Eldred, executrix. On the foregoing facts, the respondents, John W. Davis et al., who were among the heirs at law of William Eldred, and among the nearest blood relations of Frederick A. Eldred at the present time, asked the court to rule as follows: (1) That the several deeds to Lorenzo Eldred from the respondents, and those under whom some of the respondents claim, in the form set forth above, as found by the presiding judge, were not sufficient to convey to said Lorenzo Eldred any interest owned by said grantors acquired by inheritance from said William Eldred, or derived under the will of said Frederick Eldred. (2) That under the will of Frederick A. Eldred the nearest blood relations of said Frederick Eldred were entitled to four-sixths of the real estate derived by him as heir of, or under the will of, said William Eldred, and that the deed from the executrix under the will of Frederick A. Eldred, dated November 12, 1897, was not valid execution of the power of sale, and was inoperative to convey to the petitioners any interest in locus owned by Frederick A. Eldred at his death, except, possibly, the one-third interest given to her under said will. The court declined to rule as requested by the respondents, but on the facts stated in this bill of exceptions ruled: (1) That the title to William Eldred's undivided half interest in locus vested, at his death, subject to the life estate devised under his will to Lorenzo, in his heirs at law by descent, and not as purchasers under the will by virtue of the devise. (2) That under the 64 N.E.-6

second clause of the will of Frederick A. Eldred one-third part of his vested undivided interest in locus passed by devise to his wife, Mary A. Eldred. (3) That the remaining part of Frederick A. Eldred's undivided interest in locus passed, after an estate for the life of Mary A. Eldred held by the testator's heirs at law as undevised estate by contingent executory devise, one half to Jennie L. Minor, if living at the termination of the estate per autre vie, and the other half, or, if said Jennie should not be so living, then the whole of the remainder, to the testator's nearest blood relations then living; all, however, subject to, and defeasible upon, the exercise of the power of sale given by the fifth clause of the will. (4) That the power of sale contained in the fifth clause of Frederick A. Eldred's will was not limited to the requirements of the settlement of the estate. And further ruled as a matter of law: (1) That the deed of November 12, 1897, from the executrix under said will of Frederick A. Eldred,, was a valid execution of said power of sale, and operative to convey to the petitioners all interest in locus owned by said Frederick A. Eldred at his death. (2) That the several deeds of Lorenzo Eldred from the heirs of William Eldred were sufficient to convey, and did convey, to said Lorenzo any and all interest owned by the several grantors in locus, whether acquired by inheritance from, or as purchasers by devise under, the wills of both William Eldred and Frederick A. Eldred; and ordered a decree for petitioners."

Charles F. Chamberlayne, for petitioners. Hiram P. Harriman and Harry E. Perkins, for respondents.

LATHROP, J. It does not seem necessary for us in this case to determine whether the title to William Eldred's undivided half interest in the locus vested at his death, subject to the life estate devised under his will to Lorenzo, in his heirs at law by descent, or whether it passed to them under the will. See Ellis v. Page, 7 Cush. 161; Sears v. Russell, 8 Gray, 86, 93. Nor do we find it necessary to determine whether the widow of Frederick A. Eldred had power under his will as executrix to make the deed of November 12, 1897, nor to consider the precise construction of the will of Frederick. It is evident that the interest of Frederick in William's estate was in the widow, Jennie L. Minor, and the testator's blood relations, who were three brothers, a sister, and the children of a deceased sister. These, including Lorenzo, were the living heirs of his father, William.

The real question in the case depends upon the effect of the deeds obtained by Lorenzo after the death of Frederick, and upon the effect of the deed obtained by the petitioners from the widow of Frederick and Jennie L. Minor. We cannot doubt that under the deeds to Lorenzo Eldred from the heirs of William Eldred all the interest which the

heirs had in the locus passed, whether acquired by inheritance from William Eldred, or as devisers under the wills of both William Eldred and Frederick A. Eldred; and that the petitioners also acquired, under the deed of July 3, 1983, from Mary A. Eldred and Jennie L. Minor, all their interest in the locus. The reference to the will was only for the purpose of indicating one source of the grantors' title. Whitman v. Whitman, 7 Metc. 268; Moran v. Somes, 154 Mass. 200, 28 N. E. 152, and cases cited.

Exceptions overruled.

(158 Ind. 626)

DOWNHAM et al. v. HOLLOWAY. (Supreme Court of Indiana. May 27, 1902.) INSANE PERSONS-DEEDS DISAFFIRMANCE LIMITATION OF ACTIONS.

Where a person, who was and remained of unsound mind and not under guardianship, executed a deed to land in 1876, and the grantee beld adversely thereunder until the death of the grantor in 1838, the right of the heirs of the insane person to recover was not barred by the statute of limitations, as the deed was voidable ouly, and the right of action did not accrue until after disaffirmance.

Appeal from circuit court, Hamilton county; Edgar A. Brown, Special Judge.

Action for partition by Charlotta Downham and others against Levi Holloway. From a judgment for defendant, plaintiffs appeal. Transferred from the appellate court. Reversed.

Christian, Christian & Cloe, for appellants. Kane & Kane, for appellee.

MONKS, J. It appears from the pleadings that on September 28, 1876, Nancy A. Holloway, a person of unsound mind, not under guardianship, conveyed 80 acres of real estate in Hamilton county, Ind., to appellee, her son, who took and held exclusive and adverse possession thereof under said deed continuously until the commencement of this action on December 19, 1898. The consideration named in said deed was $2,500, but no part thereof has ever been paid. Said Nancy A. Holloway died intestate in July, 1898. After her death, and on November 28, 1898, and before the commencement of this action, appellants, heirs of deceased, disaffirmed said deed on the ground that said Nancy was of unsound mind when she executed the same, and commenced this action for partition and to quiet their title as such heirs to their shares of said real estate. The statute of limitations was pleaded in bar of the action. If the same began to run when the deed was executed, on September 28, 1876, the judgment must be affirmed; if not, it must be reversed. The deed of a person of unsound mind not under guardianship is not void, but only voidable. Insurance Co. v. Sellers, 154 Ind. 370372, 56 N. E. 97, 77 Am. St. Rep. 481, and cases cited; Thrash v. Starbuck, 145 Ind. 673, 44 N. E. 543; Ashmead v. Reynolds, 127 Ind.

441, 444, 26 N. E. 80. Such rollable deed vests the title to the real estate in the grantee the same as an unimpeachable deed until disaffirmed by the grantor on becoming sane, or by his heirs after his death. Schuff v. Ransom, 79 Ind. 458, 405; Nichol v. Thomas, 53 Ind. 42, 53. So long as the grantor re mains of unsound mind, he has no power to affirm or disaffirm such deed. Nichol v. Thomas, 53 Ind. 53; Insurance Co. v. Sellers, 154 Ind. 370, 372, 56 N. E. 97, 77 Am. St. Rep. 481, and cases cited. It is the act of disaffirmance which renders such voidable deed a nullity, and not the proceedings which may be taken to give force to the disaffirmance after it has been made. Ashmead v. Reynolds, 127 Ind. 441, 444, 26 N. E. 80; Long v. Williams, 74 Ind. 115, 119. Until such deed is disaffirmed, there is no right of action; in other words, the action does not accrue until after the disaffirmance. Insurance Co. v. Sellers, 154 Ind. 370, 372, 373, 56 N. E. 97, 77 Am. St. Rep. 481, and cases cited; Ashmead v. Reynolds, 127 Ind. 444, 26 N. E. 80; Fay v. Burditt, 81 Ind. 433, 437, 42 Am. Rep. 142; Schuff v. Ransom, 79 Ind. 458, 465; Nichol v. Thomas, 53 Ind. 42, 53; Welch v. Bunce, 83 Ind. 382, 385: Richardson v. Pate, 93 Ind. 423, 426-428, 47 Am. Rep. 374. In this case the grantor, Nancy A. Holloway, continued of unsound mind until her death. She therefore had no power to disaffirm said deed nor maintain any action for said real estate in her lifetime. The statute of limitations will not begin to run until the cause of action accrues. Busw. Lim. pp. 37, 38: Ang. Lim. (6th Ed.) § 42; Wood, Lim. (3d Ed.) § 117; King v. Carmichael, 136 Ind. 20, 28, 35 N. E. 509, 43 Am. St. Rep. 303, and cases cited. It follows that the statute of limitations did not begin to run when said deed was executed to appellee. The case must, therefore, be reversed.

Judgment reversed, with instructions to sustain appellants' demurrer to the fourth and ninth paragraphs of appellee's answer, and for further proceedings not inconsistent with this opinion.

(158 Ind. 668)

BERRY v. CHICAGO, I. & L. RY. CO. (Supreme Court of Indiana. May 27, 1902.)

APPEAL RECORD-BILL OF EXCEPTIONS.

Appellant filed a præcipe as provided by Burns' Rev. St. 1901, § 661 (Rev. St. 1881, § 649; Horner's Rev. St. 1901, § 649), designating what papers and entries the clerk should copy into the transcript on appeal, but not requesting the clerk to certify the original bill of exceptions containing the evidence; and the general certificate of the clerk did not include it, and the transcript did not show that said bill was ever filed with the clerk after being signed by the court, as required by Burns' Rev. St. 1901, § 638a (Acts 1897, p. 244), though following what purported to be an original bill of exceptions was a special certificate that the bill was filed, but the seal of the court was not affixed to said certificate. Held, that the bill was not in the record, and could not be considered.