person coming along with a proper team, and exercising proper care, would come to harm because there was no railing there, then it would be a defect. But, on the other hand, if they had no reason to apprehend that a person in that situation would come to harm, then there would be no need of a railing there, and it wasn't a defect. Now comes the question of the care of the plaintiff, and, of course, you have to take all the surrounding circumstances in regard to that to determine his care. The plaintiff claims that he had a safe horse, and that when he saw that his horse was frightened he did his best to control him. Now, the mere fact that a horse shies, that of itself, if the horse was not vicious, provided it was proper kind of a horse, and had no habit of shying, -the mere fact that the horse shied, that of itself, standing alone,-does not necessarily show that a plaintiff was not in the exercise of due care. Our supreme court has said: 'It is necessary, in order to enable the plaintiff to recover, that the defect in the highway should have been the sole cause of the accident, no other cause contributing thereto. If, before the accident, the horse, from any cause, became actually uncontrol. lable, and was so when the accident occurred, the plaintiff cannot recover. But if there was only a momentary loss of control, and the control of the animal would have been instantly regained if the vehicle had not come in contact with the defect in the way, then the plaintiff may recover.' There is where one of the contests is in this case. 'If there was only a momentary loss of control, and the control of the animal would have been instantly regained,' and the accident have been averted if there had been a proper barrier here, then that fact would not prevent the plaintiff from recovering. You❘ have to determine on that point what was the fact about this horse, because there is very contradictory testimony in regard to it. I will say right here, it does not make any difference what caused the fright of the horse, whether something in the road, or something outside of the road. That is not the question; but the question is whether or not, so far as the horse was concerned, it was simply momentary, and that this person would have regained the control of the horse had it not been for the defect. It was this man's business, of course, to be driving his horse and paying some attention to the way he was going. A person is not obliged to have his whole attention confined to the way he is going or the way he is driving, but he must conduct himself in those matters in the way you expect men of ordinary prudence to conduct themselves. Was this man doing that under the circumstances,-what he knew about the road, and what he knew was going on up on the ledge? If he did, he was in the exercise of due care. If he did not, then he was not, and he cannot recover. These are the principles which govern this case. In the first place, taking the road as it was, was there a defect? That depends upon all the conditions and the circumstances. Had the officers of the town, whose duty it is to look after the roads, had they-taking everything into account, what was going on there, and the surroundings, and the amount of travel-had they any reason to apprehend that anybody in the exercise of due care would come to any harm? If they had not, then there was no defect. If they had, there was a defect. In the next place, about this horse. Was this horse out of the control of the driver; that is, more than momentarily? If this horse was out of the control of the driver more than momentarily, so that he would not have regained the control of it, so that a barrier would not have stopped him, then he cannot recover. But, on the other hand, if the horse was momentarily out of his control, and he would have regained his control, and would have avoided an accident if there had been a barrier, then he can recover. Then, in the next place, was he conducting himself in the way that you would expect men of ordinary prudence would do? If he was, then he was in the exercise of due care; and, if he was not, he was negligent, and the plaintiff cannot recover. I stated to you, gentlemen, that the defect in the way must have been the sole cause of the injury; that is, if any other outside thing was the cause of the injury, helped to cause it, then the plaintiff could not recover; and that is what this request means, as I understand it: 'If the injury was caused by the combined effect of the unsafe condition of the highway and the negligent or careless act of a third person, the plaintiff is not entitled to recover, and the verdict must be for the defendant' It makes no difference whether the horse got frightened by something in the highway or something outside." Jas. H. Sisk, for plaintiff. Cutler & James, for defendant. HAMMOND, J. Upon the evidence, the questions whether the horse was driven with due care, whether the way was defective by reason of the absence of a barrier, whether the loss of control of the horse was only momentary, and would have been instantly regained if the vehicle had not reached the defective spot, and the accident, if there had been a proper barrier, would have been avoided, and whether the defect was the sole cause of the injury, were all for the jury. There was no error in the manner in which the court dealt with the rulings requested by the defendant. The instructions under which the case was submitted to the jury were full and correct. Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166; Tisdale v. Inhabitants of Bridgewater, 167 Mass. 250, 45 N. E. 730. Exceptions overruled. (181 Mass. 261) PROVIDENT SAV. LIFE ASSUR. SOC. v. MANDAMUS -INSURANCE COMMISSIONER OUTSTANDING POLICIES-DETERMI- Rev. Laws, c. 118, § 6, requires the insurance commissioner, before granting a certificate to a foreign insurance company, to be satisfied from an examination that the company is qualified to do business. Section 7 gives him power to revoke such certificate if he believes the company is unsound, or has not complied with the law, etc.; there being no appeal from his decision based on the company's financial condition. Section 17 provides for a report of the financial condition of companies writing insurance in the state; and section 11 requires the commissioner to determine the liability of a company on its contracts, and the amount it shall hold as a reserve. Section 37 authorizes the reduction of a company's capital stock, if approved by the commissioner. Section 78 prohibits the admission of a foreign company unless the commissioner is satisfied of specified facts. Held, that the determination of the commissioner as to the value of the outstanding policies of a company and the extent of the reserve liability for which it must have assets involves the exercise of judgment and discretion, which cannot be controlled by mandamus. Case reserved from supreme judicial court, Suffolk county; James M. Barker, Judge. Petition for mandamus by the Provident Savings Life Assurance Society of New York against Frederick L. Cutting, insurance commissioner of the commonwealth. Case reserved for the determination of the full court on the petition, demurrer, and agreed statement of facts. Petition dismissed. Thos. B. Reed, L. S. Dabney, and Reginald Foster, for petitioner. Fredk. H. Nash, Asst. Atty. Gen., for respondent. KNOWLTON, J. This is a petition for a writ of mandamus to compel the insurance commissioner to change his valuation of the outstanding policies of the petitioner so as to diminish the reserve liability for which it must have assets to meet the requirements of our law. The duty of the commissioner to make this valuation under Rev. Laws, c. 118, § 11, is only a preliminary part of his duty, under section 17 of this chapter, annually to "make a report to the general court of his official transactions," in which he shall include, among other things, "an exhibit of the financial condition and business transactions of the several insurance companies as disclosed by official examinations of the same, or by their annual statements, abstracts of which statements, with his valuation of life policies, shall appear therein, and such other information and comments relative to insurance and to the public interest therein, as he thinks proper." It is important in one other way. It naturally is used in part as a foundation for action in case he is called upon, under section 7, to 40 N R revoke or suspend the certificates and authority granted to a foreign insurance company because he is of opinion that it is "in an unsound condition," or "that its actual funds, exclusive of its capital, are less than its liabilities." The complaint against the respondent is that in applying the rule of computation prescribed by the statute to a certain class of policies issued by the petitioner, he has made a mistake in holding that, for the purpose of ascertaining their reserve value, they are to be treated as being from their inception policies for life or for an endowment period, and not as policies for one year only, with an option in the assured to continue them in force at the end of the year without a further physical examination, and without an increase of premium on account of his greater age. It is not contended that he has acted in bad faith, or has willfully disobeyed the law. There is only a difference of opinion between the petitioner and the respondent as to the proper application of the rule prescribed by the statute to the methods of the petitioner in insuring under this class of policies. "Be A preliminary question is whether the decision of the commissioner in a matter of this kind is subject to revision by this court on an application for a writ of mandamus. In various proceedings affecting foreign insurance companies the statute makes no provision for an appeal from his decision, but manifestly intends that his conclusion, in the exercise of his judgment, shall be final. Particularly is this so in the valuation of policies and assets and the determination of the financial condition of foreign companies doing business in this commonwealth. fore granting certificates of authority to an insurance company to issue policies or make contracts of insurance, the commissioner shall be satisfied by such examination as he may make and such evidence as he may require, that such company is otherwise qualified under the laws of this commonwealth to transact business herein." Rev. Laws, c. 118, § 6. By Rev. Laws, c. 120, § 10, he has absolute authority to give or withhold his indorsement upon a requisition of the directors for the withdrawal of any portion of an emergency fund deposited by an assessment insurance company with the treas urer of the commonwealth. Under Rev. Laws, c. 120, § 12, the authority granted to a foreign assessment insurance company to do business in this commonwealth "shall be revoked if the insurance commissioner, on investigation, is satisfied that such corporation is not paying in full the maximum amount named in its policies, or that it has otherwise failed to comply with any provi sion of this chapter or its own contracts." In regard to the reduction of capital stock of an insurance company it is provided by Rev. Laws, c. 118, § 37, that, "If the commissioner finds that the reduction is made in conformity to law, and that it will not be prejudicial to the public, he shall endorse his approval upon the certificate." By section 67 of this chapter a company organized under the laws of another state may be admitted to do business in this commonwealth, "if, in the opinion of the commissioner, it is in sound financial condition," etc. Section 72 provides that "no domestic life insurance company shall re-insure its risks except by permission of the insurance commissioner; but may re-insure not exceeding one-half of any individual risk." Under section 78 "no foreign insurance company shall be so admitted and authorized to do business until it has satisfied the insurance commissioner" of numerous facts therein stated. The terms of each of these sections make it plain that the opinion and judgment of the insurance commissioner is to be final and conclusive in determining these important matters upon which the rights of the insurance companies and the protection of the public depend. Most, if not all, of these several conclusions involve the consideration of questions of law as well as questions of fact. In regard to the only important results depending upon the valuation of policies to ascertain the reserve liability of insurance companies, namely, the making of a report to the legislature, and the revocation or suspension of certificates of authority to do business, it seems that the judgment of the commissioner is not subject to revision. Under section 17 he is to make a report of the financial condition of insurance companies and of their transactions and the valuation of life policies, which must mean a report, according to his understanding of the facts, founded on examinations and statements. By section 7 he is to revoke or suspend certificates of authority granted to a foreign insurance company if he "is of opinion, upon examination or other evidence, that a foreign insurance company is in an unsound condition, that it has failed to comply with the law, or that its actual funds, exclusive of its capital, if it is a life insurance company, are less than its liabilities," etc., and no new business can thereafter be done by such company "until its authority to do business is restored by the commissioner." If the "ground for revocation or suspension relates only to the financial condition or soundness of the company, or to a deficiency in its assets," there is no appeal from a decision of the commissioner. In other cases the company may apply to the supreme judicial court for a reversal of his decision. Here again is an indication that the judgment of the commissioner in all matters of law or fact involved in determining the financial condition of a company for a purpose affecting it, even to the extent of terminating its existence as an insurer in this commonwealth, is to be final and conclusive. The valuation of policies for the purpose of determining the reserve liability is only one of the processes necessary to determine the company's financial condition. It involves an application of the statutory rule to each policy, in connection with the methods and practices in the transaction of the business that exist either as a part of the science of life insurance or otherwise outside of the stipulations of the policy. New forms of policies may be adopted which were not know when the statutory rule was established, and new questions may arise, depending in part upon the principles of life insurance as a science and in part upon the practices of the company, as well as upon rules of law, in determining how the statutory rule shall apply to these policies. In the present case, even if the contracts referred to are to be considered technically as the petitioner contends, the statute is silent as to whether the value of the option to continue the insurance at the end of the year without an examination, and at the premium fixed for an age a year younger than the assured would then have attained, is not to be considered in determining the reserve liability of the company under the contract. Questions of fact and questions of law must be considered in coming to a conclusion. In valuing all the assets of a company, which usually comprise investments of many kinds, questions of law as well as questions of fact must inevitably arise. If we are to examine each policy or class of policies, together with the methods of the company in fixing their premiums, and any other facts pertaining to the policies which are different from those belonging to other kinds of policies, for the purpose of determining whether the insurance commissioner has made a mistake of law in valuing them, we know of no good reason why his valuation of each item of the assets might not be examined to see if it is affected by a mistake of law. A mistake of the latter kind might be as detrimental to the company as one of the former, whether viewed in reference to its effect upon the commissioner's report or upon his determination to revoke or suspend the certificate of authority. If the commissioner's mistakes of law are to be corrected on an application for a writ of mandamus, his mistakes in the construction of contracts entering into investments should be dealt with as well as his mistakes in the construction of contracts for insurance. We are of opinion that the statute does not contemplate a revision of the commissioner's decisions in this way. This officer is intrusted with the performance of important duties, and invested with power to use his discretion and judgment in matters which call for prompt and decisive action, and which would be difficult to investigate in our courts. We are of opinion that, at least so long as he acts in good faith, intending to obey the law, we cannot, by a writ of mandamus, compel him to change his conclusions, either of law or fact, in the valuation of the policies or assets of a life insurance company. Without considering whether any mistake appears, we must deny the petitioner's application. Similar decisions have been made in regard to the powers of the insurance commissioner in Ohlo and Kansas. State v. Moore, 42 Ohio St. 103; Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265. Petition dismissed. (181 Mass. 256) DE MONTAGUE v. BACHARACH et al. Supreme Judicial Court of Massachusetts. Suffolk. April 7, 1902.) LICENSES EVICTION FROM PREMISES BREACH OF CONTRACT — RECOVERY - STATUTE OF FRAUDS-INTEREST IN LAND-TIME FOR PERFORMANCE. 1. Where one having a license to conduct a restaurant on another's premises is put out by the licenser, though the contract is within the statute of frauds, as not to be performed within a year, he cannot recover outside the contract for rents paid, unless the licenser sets up the defense that the contract is unenforceable under the statute of frauds. 2. Plaintiff obtained of defendant the right to run a restaurant in a basement, a part of which was occupied by defendant's bar. There was a partition between the bar and restaurant, with an open space at each end. There were no separate doors from the street to the bar and restauraut. Plaintiff had no keys to the premises, which were opened and closed by defendant; and, when plaintiff asked for a lease, defendant refused it on the ground that his lease would not permit a sublease. Held, that the contract was not one for an interest in land, within the statute of frauds, but for a license. 3. Where one obtains from another a license to run a restaurant on the latter's premises for over a year, the contract is within the statute of frauds, as one not to be performed within a year. 4. Where one having a license to conduct a restaurant on another's premises is put out by the latter after enjoyment of the privilege for 10 months he cannot recover the sums paid for the privilege, on the theory that, defendant having committed a breach, the licensee has a right to rescind, inasmuch as he cannot put his iicenser in statu quo. Exceptions from superior court, Suffolk county; John A. Aiken, Judge. Action by Albert F. De Montague against Solomon Bacharach and others. From a judgment for plaintiff, defendants bring excep tions. Exceptions sustained. Jas. J. McCarthy, for plaintiff. Hayes & Williams, for defendants. LORING, J. The defendants in this case were the lessees of a basement fitted up in part as a bar for the sale of liquor, and in part as a restaurant. In pursuance of an oral agreement between the plaintiff and the defendants, the plaintiff ran the restaurant for his own account from August 1, 1898, to July 1, 1899. There was a direct conflict in the evidence of the two as to the terms of the oral agreement, and also as to whether the plaintiff left voluntarily, or was put out by the defendants. Soon after he left, the plaintiff brought this action, in which he seeks to recover from the defendants all the sums paid by the plaintiff for the privilege of running the restaurant, for gas and electric light bills paid by him, and also for some work done at the defendants' request. These amounted to $1,528.22. The defendants declared against the plaintiff in set-off for the reasonable value of the use of the restaurant and the utensils belonging to them, and for gas and electric light bills incurred by the plaintiff, which they had to pay, amounting in all to $3,082.57. The case went to an auditor, whose report is not material. At the trial the plaintiff was given a verdict by the jury, and the case comes here on the defendants' exceptions. The plaintiff's story was that he was to have the premises to the end of the defendants' lease, which had about two years to run on August 1, 1898, when the plaintiff was let into possession. The defendants testified that the original agreement was that the plaintiff was to have the restaurant until January 1, 1899, and that there was no agreement as to the duration of the arrangement after that date. The conflict between the plaintiff and the defendants was not confined to the time during which the arrangement was to last, but extended to nearly every particular of the arrangement, and there was evidence that the agreement was changed from time to time while it lasted. The jury were told that the first question for them to determine was what the agreement between the parties ultimately was, and the next question was, who ended the agreement? If the plaintiff ended it, he could recover nothing; but, if the defendants ended it, "the plaintiff is entitled to fair remuneration for the benefits that he conferred upon the defendants"; and in ascertaining the amount due, if anything is due the plaintiff, a balance must be struck, and, after ascertaining what remuneration is due the plaintiff for benefits conferred upon the defendants, there must be deducted therefrom the "benefits De Montague enjoyed in the way of what is spoken of as 'rent,' in the value of the enjoyment of the premises, and any other elements of benefit which appear in the papers and in the case that he had while he was in occupation, and you set the two classes of benefits one against the other." The plaintiff contends that he can keep his verdict on either one of two grounds, namely: First, that the contract was within the statute of frauds, and, under the finding of the jury, was repudiated by the defendants; and, second, on the ground that he had a right to rescind the contract on the defendants' committing a breach of it. But we are of opinlon that neither ground is tenable. The difficulty in the way of plaintiff's keeping the verdict on the first ground is that, under the instructions of the presiding judge, the plaintiff is allowed to sue the defendants outside of the oral contract for all sums paid under it on the defendants committing a breach of it. If one renders value to another under an oral contract within the statute of frauds, for which he has paid nothing, he is entitled, on the defendant setting up the de fense of the statute, to recover outside of the contract the market value of the property received under it. But this right of recovery does not arise on the defendant committing a breach of the contract, without having set up that the oral agreement is not enforceable. In this case there was evidence that the contract was within the statute of frauds, but there is no statement in the bill of exceptions that the defendants have ever set up the defense of the statute, and the jury were not told that his right to recover the sums sued for depended on his having set up that the oral agreement was unenforceable. In this case there was evidence that the contract was within the statute of frauds, as a contract not to be performed within a year. It was not a contract for an interest in land. It was admitted that, when the plaintiff first began to run the restaurant, there was no division between the bar and the restaurant. The two were separated by a screen, and later on, when this screen was replaced by a partition, “an open space was left at each end of the partition, and patrons and servants could pass freely between the tables and bar, and customers at the tables were served with drinks from the bar. There was a toilet room in the corner beside the bar, which was used indiscriminately by the patrons of both restaurant and bar. There were no separate doorways from the street to the bar and restaurant, but the doorways on both streets were used indiscriminately by the patrons of both bar and restaurant." The plaintiff himself testified that he "had no keys to the premises, and they were opened and closed by the defendants' employés," and that when he asked the defendants for a lease the defendants told him that his "lease that he had there wouldn't allow him to sublease to anybody else." Under these circumstances, although the sums to be paid to the defendants were spoken of as rent, it is plain, on the admitted facts, that he did not have an exclusive right to the possession of any part of the basement, but that this was a case where he had been given a license or privilege of running the restaurant on premises which remained in the legal possession of the defendants. Johnson v. Wilkinson, 139 Mass. 3, 29 N. E. 62, 52 Am. Rep. 698; White v. Maynard, 111 Mass. 250, 253, 15 Am. Rep. 28. But if the arrangement was to continue for the residue of the term of the defendants' lease, the contract was within the statute, as a contract not to be performed within a year. It is not plain from the bill of exceptions what the course of the trial was in the case at bar. It is stated in the beginning of the bill that "the plaintiff claimed that the sums paid, labor performed, and benefits conferred, as alleged in the account annexed, were paid, performed, furnished, and conferred under a verbal contract within the statute of frauds, and repudiated by the defendants before being fully performed." Later it is stated that "during the progress of the trial, the court intimating that the statute of frauds was not applicable, although not so ruling formally, the case proceeded, on the part of the defendants, in accordance with such intimation, and the case was in fact so conducted by the court." And finally it is stated that the rest of the charge not set forth in the bill of exceptions has no bearing on the points raised by the defendants' exceptions, and contained no reference to the statute of frauds. Although it is not plain what the course of the trial was, it is plain that, under the instructions given to the jury, they could have found that the plaintiff was entitled to recover all sums paid the defendants under the oral agreement, on the defendants committing a breach of that agreement, without proof that the defendants ever set up that the contract was unenforceable by reason of the statute of frauds; and we are of opinion that that was wrong, and that the verdict cannot be supported on the first ground. The second ground on which the plaintiff seeks to keep his verdict is that, on the breach of the contract by the defendants, he was entitled to rescind the contract and recover from the defendants what he paid under it. But as was said in Handforth v. Jackson, 150 Mass. 149, 155, 22 N. E. 634, in case a plaintiff wishes to rescind, the defendant is "entitled to have his property restored to him, not to have its value fixed by a jury"; and it is settled that a plaintiff cannot rescind a contract on the defendant committing a breach of it, without putting the defendant in statu quo. Leonard v. Morgan, 6 Gray, 412; Bassett v. Percival, 5 Allen, 345; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634; Marston v. Curtis, 163 Mass. 302, 39 N. E. 1113; Gassett v. Glazier, 165 Mass. 480, 43 N. E. 193. In the case at bar the plaintiff had enjoyed the privilege of conducting the restaurant for at least 10 months. For that reason he could not put the defendants in statu quo, and therefore could not rescind the contract on the defendants committing a breach of it. It is not necessary in this case to consider when or how far a recovery can be had after an oral agreement within the statute of frauds has been performed in part by both parties to it. See Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Miller v. Roberts, 169 Mass. 134, 47 N. E. 585. Nor is it necessary to consider the other questions raised at the trial. Exceptions sustained. |