(N. S.) 162; Willcutt v. Driscoll, 200 Mass. Action by Raymond L. Cleveland against 110, 85 N. E. 897, 23 L. R. A. (N. S.) 1236; Thomas W. Peirce on an alleged oral promDe Minico v. Craig, 207 Mass. 593, 94 N. E. ise made to plaintiff to indemnify him 317; Folsom v. Lewis, 208 Mass. 336, 94 N. E. against loss as surety on a recognizance for 316. But it comes within principles recog- the appearance at court of Charles J. Averill, nized and stated in several of those cases held on charges of perjury by the Superior and applied in Pickett v. Walsh, 192 Mass. Court. There was a verdict for plaintiff, 572 at 579 et sequiter, 78 N. E. 753, 6 L. R. A. and defendant brings exceptions. Overruled. (N. S.) 1067, 116 Am. St. Rep. 272. In the The recognizance showed that plaintiff opinion of a majority of the court the entry and a third person, as sureties, were jointly

in each case must be

Decree reversed

Bill dismissed.

and severally bound in a penal sum, and that a judgment had been recovered against the sureties.

G. C. Donaldson, for plaintiff. O. G. Chick and D. L. Smith, for defendant.

HAMMOND, J. Whether the promise was made by the defendant and whether it was a joint or several promise were upon the evidence clearly questions of fact for the jury. [1] If the liability was several, each promisee must sue alone; and a recovery by one on the promise made to him would be no bar to an action by the other on the promise made to this other. All the requests were therefore rightly refused. [2] The exception to the admission of the record is not argued, and in view of its untenable nature we consider it waived.

The exceptions are frivolous and are overruled with double costs, and interest at the rate of 12 per cent. a year upon the amount of damage as found by the jury from the time the exceptions were allowed; and it is: So ordered.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

fered to prove that Sloane stated to witness

CARROLL V. BOSTON ELEVATED RY. CO. | McPhail on the day prior to the service of

(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 3, 1912.)

EVIDENCE (§ 317*) — DECLARATIONS OF PER-
SONS SINCE DECEASED.

the writ that, while talking with O'Brien, he saw plaintiff coming down the hill on the right-hand side of the street, and, as plaintiff went by a team and turned to the right and went off the car tracks, one of defendant's cars came from behind, struck the wagon, and caused the injury. This offer was refused, and plaintiff excepted.

Declaration of a person since deceased, as to the happening of an accident, was not admissible under Rev. Laws, c. 175, § 66, where the trial judge was not satisfied, on the foundation laid, that the declaration was made in good faith before the commencement of the action, and on the declarant's personal knowl-rue and R. M. Bowen, for defendant. edge.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 317.*]

Exceptions from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Michael T. Carroll against the Boston Elevated Railway Company. Judgment for defendant, and plaintiff brings exceptions. Overruled.

Action in tort to recover for personal injuries sustained by plaintiff on the corner of Blue Hill avenue and Fayston street in the city of Boston, by collision between one of defendant's cars and plaintiff's wagon, on which he was riding. One Michael O'Brien, called for plaintiff, testified that at the time of the accident he was at the corner talking with a man named Thomas Sloane, that he saw plaintiff's wagon, but could not say just what caused the accident. It was admitted that Thomas Sloane had died since the accident and prior to the trial. One McPhail testified that Sloane made a statement to him September 25, 1906, 10 days after the accident, and plaintiff of

P. J. Donaghue, for plaintiff. M. J. Sugh

HAMMOND, J. In order for the declaration of Sloane, the deceased, to become admissible it was necessary for the presiding justice to find that the declaration was made in good faith, before the commencement of the action and upon the personal knowledge of the declarant. R. L. c. 175, § 66. The statement was excluded because the presiding justice was not satisfied that these conditions of the statute had been complied with.

We cannot say that the presiding justice in coming to this conclusion was not justified by the evidence. He saw the witness McPhail and may not have been satisfied that his statement that the interview with Sloane took place before the commencement of the action was exact, or he may not have been satisfied in view of all the evidence in the case that the statement of the deceased was made in good faith. The burden was upon the party offering the evidence to satisfy the court that there had been compliance with the conditions of the statute. Exceptions overruled.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 150-159; Dec. Dig. appeal. Affirmed. 115.*]

6. PAYMENT (§ 9*)-MEDIUM OF PAYMENT-mire and John B. McIntyre, for appellee. MONEY JUDGMENT.

Where a party has not expressly agreed to accept payment in something other than money, he may enforce his just claim by a money judgment, unless he has legally estopped himself to demand payment in money.

[Ed. Note. For other cases, see Payment, Cent. Dig. §§ 38, 40, 41; Dec. Dig. § 9.*] 7. MECHANICS' LIENS (§§ 208, 216*)-WAIVER -ESTOPPEL.

The right to a mechanic's lien may be waived, or the party asserting it may be estopped to enforce it.

[Ed. Note.-For other cases, see Mechanics' Liens. Cent. Dig. 88 382, 400-402; Dec. Dig. §§ 208, 216.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

a certain building owned by him; that pay- | enforce a mechanic's lien notwithstanding ment therefor was to be made by giving a the contractor agreed to secure the owner credit to said Thomas, of the amount due against such liens and gave bond to secure for papering, upon an account owing by him the fulfillment of his contract. Carter v. to his coappellant, Johnson; that appellee Martin, 22 Ind. App. 445-451, 53 N. E. 1066. knew of the terms of said contract at, and before, the time he performed the work for which he seeks to enforce a lien, and had been employed by said Thomas for two years prior thereto; that he did the work at the direction of appellant Thomas and knew the latter was to receive no money for the job but was to be paid as aforesaid.

len v. Johnson, 19 Ind. App. 406-419, 49 N. | seq.; Greensburgh, etc., T. Co. v. Sidener, E. 612; Supreme Tribe, etc., v. Hall, 24 Ind. 40 Ind. 424-435; Dakin v. Anderson, 18 Ind. App. 316-324, 56 N. E. 780, 79 Am. St. Rep. 52-54. 262; 29 A. & E. Enc. Law, p. 1091 et seq.

In this case there is nothing to show affirmatively an intention to waive the statutory right to a lien. Nor can it be said that appellee's mere knowledge of the contract between his employer and the owner of the property is sufficient to warrant the inference that he intended to waive his right to a lien.

Appellant Johnson also asserts that the answer is good as a plea of estoppel. To constitute an "estoppel" it is essential that the representation or concealment relied upon must be made with the intention that the other party shall act or rely thereon. Another essential element is that the party relying upon the estoppel must have been in some way induced by the representation or concealment to do, or fail to do, something to his injury, which act or failure to act would not have occurred but for the conduct of the party against whom the estoppel is charged.

No act, silence, or concealment on the part of appellee is shown to have induced appellant Johnson to enter into the contract; but, on the contrary, the only possible inference from the facts averred is that he voluntarily entered into it for his own benefit without the knowledge of appellee. The fact that appellee afterwards learned of the contract, and knew of its terms when he did the work, had nothing to do with the making of the contract.

[9] On the facts averred in the answer, if the owner of the property suffered any loss, it cannot be charged either directly or indirectly to appellee. The answer is clearly insufficient as an estoppel. Steel v. Michigan Buggy Co., 95 N. E. 435.

The answer is insufficient, and the court did not err in sustaining a demurrer thereto. Judgment affirmed.

JOHNSON et al. v. ROBERTS. (No. 7,452.)
(Appellate Court of Indiana, Division No. 1.
Jan. 5, 1912.)

Appeal from Circuit Court, Grant County;
H. J. Paulis, Judge.
Johnson and others.
Action by Harry S. Roberts against James
Judgment for plaintiff,
and defendants appeal. Affirmed.
Foster Davis, for appellants. Guy Walter-
mire and J. B. McIntire, for appellee.

HOTTEL, J. The appellants in this case are the same as in the case of James Johnson et al. v. Raleigh L. Spencer, 96 N. E. 1041, and the questions involved are identical with the questions therein decided.

Judgment affirmed on the authority of the above case.

OWEN v. WATSON et al† (No. 7,319.) (Appellate Court of Indiana. Nov. 24, 1911.) Appeal from Circuit Court, Randolph County; J. W. Macy, Judge.

Action to quiet title by Frank Keesling and another against Timothy S. Owen and Louisa Z. Watson, with cross-complaint by defendant Watson against the plaintiffs and defendant Owen. Judgment on the cross-complaint for defendant Watson, and defendant Owen appeals. Affirmed.

Timothy S. Owen, for appellant. J. F. Meridieth, for appellee.

ion.

We

PER CURIAM. This appeal is taken from a judgment rendered by the trial court on the foreclosing a mortgage on certain real estate cross-complaint of appellee, Louisa Z. Watson, to which appellant held the legal title. have carefully examined the record in this case, and are of the opinion that the correct result was reached in the trial court. The record While we have discussed the answer from and briefs do not disclose any error prejudicial the standpoint of an estoppel, we may say to appellant, and the judgment should therethat it is more properly an attempt to plead fore be affirmed. The questions presented are a waiver. The distinction between an "es- would be of no value to the legal profession, not new or unusual, and a discussion of them toppel" and a "waiver" is not always appar- and certainly would be of no advantage to the ent, and the terms are sometimes used inter-parties to this action. The judgment of the changeably. The term "waiver" generally lower court is therefore affirmed without opinimplies an intention on the part of a person possessing some right under a contract, or the law, to relinquish it for the benefit of another. Waiver is ordinarily personal, and, in the absence of some special agreement or consideration, its existence is to be determined solely from the conduct of the party making it, independent of the acts Action between Charles P. Butler and the of any other party affected by it. In "es- Board of Commissioners of Lawrence County. toppel" this distinctly personal element is From the judgment Butler appeals. Transfernot an essential, nor is the intention to relin-red to Supreme Court upon an equal division in the Appellate Court. quish the right necessarily present. An estoppel in pais arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse. Its existence is determined by the acts, knowledge, and conduct of both parties. 29 A. & E. Law, p. 1092 et

BUTLER v. BOARD OF COM'RS OF LAWRENCE COUNTY. (No. 7,356.) (Appellate Court of Indiana. Jan. 5, 1912.) Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

McHenry Owen, for appellant.
Brooks, for appellee.

Brooks &

PER CURIAM. The Appellate Court being equally divided upon the question as to whether the judgment of the lower court in this cause should be sustained, it is therefore transferred to the Supreme Court.