HOLMES, C. J. This is an action of replevin of chattels held by the defendant, a deputy sheriff, under attachments made on November 4, 1899, in actions against the Bay State Manufacturing Company. At the close of the plaintiff's evidence the presiding justice directed a verdict for the defendant and the plaintiff excepted. The only question before us is whether there was any evidence of the plaintiff's right. No evidence was given of a title on his part, and the question therefore put in the way most favorable to the plaintiff, takes the form whether there was evidence of his possession. Association v. McAllister, 153 Mass. 292, 295, 26 N. E. 862, 11 L. R. A. 172. And we assume for the purposes of decision that the evidence would be sufficient if he was tenant and actual occupant of the building in which the property was in use. Id.; Water Co. v. Sharman [1896] 2 Q. B. 44.

There is no doubt that the evidence, if any, was extremely slender. The plaintiff did not appear, although summoned by the defendant, and the judge may have thought the excuse a pretence. There was but one witness called, the owner of the building. He admitted having been annoyed by the proceedings in which the plaintiff had a part, but gave no indication of a want of candor or of an intent to pervert the truth. He said that he had signed a receipt for rent for the month of October running to the plaintiff, but explained that this was after the attachment and that up to that time he had made no lease to the plaintiff, and that he refused to do so. So in answer to a question put by the plaintiff's counsel as to whether there were any other than Mr. Hayes's workmen about the building, he said not that he knew of, but again explained later that he did not know whose servants the people were or know anything about it, except the names of the persons whom he saw. He gave the names, so that it was simple for the plaintiff to prove that the persons were his servants if they were. In short, it would be only by picking out particular expressions and depriving them of their context or the reasonable explanations by which they were followed, that even the form of a case could be made out. The presiding justice saw the witness and could judge better than we can from the print whether there were two views of his evidence possible. We are not prepared to say that he was wrong. Exceptions overruled.

(181 Mass. 320)

DODGE v. LUNT.

(Supreme Judicial Court of Massachusetts. Essex. May 20, 1902.)

GIFTS HUSBAND TO WIFE-EVIDENCE-SUFFI

CIENCY-INVENTORY-EFFECT.

1. The mere fact that a husband checked out money from one bank, and that it was afterwards deposited in nother bank in the name of his wife individually or as trustee, did not

necessarily show that the money was a gift to her, especially where it appeared that the husband was in the habit of multiplying accounts, having had ten other accounts in the two banks.

2. The mere fact that the wife drew interest on the deposit would not necessarily indicate a gift to her of the money.

3. The fact that on the death of the husband assignments of deposits standing in a wife's name, which had been executed from the wife to the husband, were found among his papers, did not necessarily show that the deposits belonged to her, and not to him.

4. Neither a husband, acting as executor of his wife, nor his personal representatives, can be concluded from showing that deposits inventoried by him as belonging to her estate actually belong to him.

Appeal from supreme judicial court, Essex county.

Proceeding to settle the estate of Martha A. Lake, deceased. The probate court entered a decree allowing the account of Nicholas B. Lake, her administrator, which account was filed by Philip H. Hunt, as executor of the said Nicholas B. Lake. From a decree of a single justice affirming the decree of the probate court, allowing said account, Robert G. Dodge, administrator of Florence E. Moody, a daughter of Mrs. Lake, appeals. Affirmed.

Robert G. Dodge and Albert P. Carter, for appellant. Jacob S. Choate, for appellee.

MORTON, J. This is an appeal from a decree of the probate court allowing an account filed by the appellee as executor of the will of Nicholas B. Lake for the latter as administrator of the estate of his wife, Martha A. Lake. No account was rendered by the said Nicholas B. Lake during his lifetime. In the account filed by the appellee the property is accounted for as the property of Nicholas B. Lake. The question is whether that is a proper accounting, or whether the property should be regarded as assets of the wife's estate. The case was heard by a single justice, partly on agreed facts and partly on oral evidence and certain exhibits, and he affirmed the decree of the probate court. Martha A. Lake died in 1883, leaving a husband and three children,-a son and two daughters, surviving her. The husband was duly appointed administrator, and gave bond with sureties, and filed an inventory, in which the property in question, consisting of deposits in five different banks in her name individually, and as trustee in two savings banks in Newburyport, was inventoried by him as belonging to her estate. Two of the children died shortly after she did,-the son unmarried, and without issue; and the other, a daughter, Florence E. Moody, leaving a husband and one child. The appellant has been duly appointed administrator of Mrs. Moody's estate, and the remaining daughter has been appointed administratrix de bonis non of her mother's estate. In any event, Mr. Lake's estate is entitled to two-thirds of his wife's estate, one-half as her heir, and one-sixth as

his son's heir. The deposits consisted in large part-nine-tenths, as one of the witnesses testified-of checks drawn by Mr. Lake to the order of the savings banks or of the treasurer on an account kept by him in a national bank. And the question is whether they were gifts to his wife. It is to be noted that the checks were not payable to Mrs. Lake, and the mere fact that the money was deposited in her name individually or as trustee does not necessarily show that it was a gift to her. Booth v. Bank, 162 Mass. 455, 38 N. E. 1120. It may have been done by Mr. Lake for the purpose of multiplying accounts. That he was in the habit of multiplying accounts is shown by the fact that he had ten other bank books in these two banks. There was nothing shown as to the manner in which he dealt with the deposits during her life which required a finding that they were gifts to her. Sometimes she drew the interest, sometimes her husband did, and sometimes they both did; and this was true in regard to deposits which admittedly belonged to him. The fact that she drew interest would show that she must have had possession of the books, but would not necessarily show that the books had been delivered to her as and for her own. Indeed, on one occasion when she drew the interest on one of the deposits in question, and on another occasion when they both drew it, the interest was redeposited to the credit of an account belonging to him, which would tend to show that the deposit on which the interest was paid belonged to him also, though standing in her name. It is true that assignments of the books in question to Mr. Lake from his wife were found with the books amongst his papers after his death, and that he inventoried the books as the property of his wife. But there is nothing to show that the assignments ever were presented at the banks, or to show under what circumstances they were executed and delivered, if there were any delivered. There is nothing in the fact that assignments of the deposits had been executed from the wife to the husband which required a finding that they belonged to her, and not to him. And as to the other matter, Mr. Lake well may have deemed that his title would be regarded as more satisfactory if administration was taken out on his wife's estate by him, and his title perfected by a transfer from himself as administrator. Neither he nor his executor would be concluded, we think, from showing that the deposits belonged to him or his estate by the fact that he had inventoried them as belonging to his wife's estate. Brooks v. Hope, 139 Mass. 351, 31 N. E. 728; McGinity v. McGinity, 19 R. I. 510, 34 Atl. 1114. As already observed, there was testimony tending to show that nine-tenths of the deposits in question consisted of money furnished by Mr. Lake. There is no direct evidence where the rest of the money came from. There was testimony tending to show that the wife had

1. The return of a deputy sheriff setting forth the receipt of a notice to remove attached property and the keeper thereof without delay, and reciting, "And on December 16th, in accordance with said notice, I removed said property to a place of safe-keeping, and hold the same to respond to the judgment of this suit," is prima facie evidence of the fact of removal.

2. A deputy sheriff, sued by an attachment defendant for failing to remove the attached property, testified that he received notice from the latter to remove it and its keeper late in the evening of December 15th; that he moved part of it into the barn of H., one of the attachment plaintiffs, and the balance elsewhere. He testified that the barn belonging to H. was on a farm which belonged to a third party, and was in charge of some one else, but that H. had the occupation of the barn; that H. was not living on the farm at the time, but had some of his property in the barn, though nothing of great value. The husband of the attachment defendant testified that he hired the farm from H. and managed a milk business for his wife there, and that the barn was on the premises hired by him. Held insufficient to support the action, there being no evidence that the barn wàs on premises belonging to or hired by the attachment defendant, or that it was occupied by her.

3. In an action by an attachment defendant against a deputy sheriff for failing to remove the attached property, receipts for money paid by plaintiff to the attachment creditor for some of the attached property were immaterial, and properly excluded, title of the property covered by the receipts not being in dispute.

4. It was proper to ask a party questions ou cross-examination for the purpose of showing that a few days before, in the trial of another case, he had testified contrary to his testimony on direct examination.

Exceptions from supreme judicial court, Middlesex county.

Action by one Riley against one Tolman. The court found for the defendant, and plaintiff excepted. Exceptions overruled.

H. Dunham, for plaintiff. S. L. Mayberry, for defendant.

LATHROP, J. The defendant, a deputy sheriff, attached on mesne process certain personal property of the plaintiff on two writs, one in favor of Joseph L. Harding and the other in favor of John R. Farnum, and appointed a keeper of the property. The attachment on the first writ was made on December 12, 1899, and that on the second writ on December 16, 1899. The day before the last attachment the plaintiff gave the de

fendant notice to remove the keeper and the property without delay, in accordance with Pub. St. c. 161, §§ 42, 43. Subsequently the defendant moved the property, and the plaintiff admitted at the trial that there was no unreasonable delay in moving it, if it was moved at all. The contention of the plaintiff was that the property was moved simply from one part of her premises to another. The return of the defendant sets forth the receipt of the notice, and proceeds as follows: "And on December 16th, in accordance with said notice, I removed said property to a place of safe-keeping, and hold the same to respond to the judgment of this suit." This was at least prima facie evidence of the fact of removal. Livermore v. Bagley, 3 Mass. 487, 513; Bruce v. Holden, 21 Pick. 187, 189; Lothrop v. Ide, 13 Gray, 93; Whithead v. Keyes, 3 Allen, 495, 498, 81 Am. Dec. 672; McGough v. Wellington, 6 Allen, 505. The defendant, who was called as a witness by the plaintiff, testified that he received the notice late in the evening of December 15th, and moved the hay, the cattle, the pung, the harness, and the straw into Harding's barn, and the rest of the goods to Farnum's place; and that he sold them all on May 18, 1900. He also testified that the barn belonging to Harding was on the Lowell Grove farm; that this farm belonged to one Bigelow, as trustee, and was in charge of one Viles; that Harding had the occupation of the barn; and that Harding was not living on the farm at this time, but had some of his property in this barn, though nothing of any great value. The plaintiff did not testify as a witness, and the only other witness on this point was the plaintiff's husband, who testified that he hired the Lowell Grove farm from Harding, and managed the milk business for his wife there, and that the barn to which some of the property was removed was on the premises hired by him. On this evidence the judge rightly ruled that the action could not be maintained. There was no evidence that the Harding barn was on the premises belonging to, or hired by, the plaintiff. Nor was there any evidence that she occupied it.

Some questions of evidence remain to be considered. The plaintiff offered in evidence two receipts from Harding to her for money paid for some of the attached property. These were excluded, and the plaintiff excepted. We need not consider whether, under other circumstances than existed in this case, they would have been admissible (see McAvoy v. Wright, 137 Mass. 207, 209; Brooks v. Duggan, 149 Mass. 304, 21 N. E. 381; and Silverstein v. O'Brien, 165 Mass. 512, 43 N. E. 496), because her title to the property covered by the receipts was not in dispute. The receipts were entirely immaterial.

The plaintiff's husband was asked some questions on cross-examination for the purpose of showing that a few days before, in the trial of another case, he had testified

contrary to the testimony which he gave on direct examination in the present case. So far as the questions put and the answers given tended to contradict him they were clearly admissible. Allin v. Whittemore, 171 Mass. 259, 50 N. E 618. Whether the cross-examination went further than this is immaterial, as the case was taken from the jury, and we have assumed, in deciding the principal question in the case, that his testimony on direct examination was true. Exceptions overruled.

(181 Mass. 282)

CRAIG et al. v. FRENCH. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1902.)

CONTRACT-ACTION - TRIAL - SUBMISSION TO AUDITOR-MOTION TO RECOMMIT

APPEAL EVIDENCE.

1. A motion to recommit a case to an auditor is addressed to the discretion of the court, and is not the subject of an exception or appeal.

2. Where plaintiffs' action was on a contract to supply the necessary labor for the erection of plumbing fixtures, and to furnish the materials at an advance of 10 per cent. over the cost of stock, and was not on quantum meruit, evidence of the value to the defendant did not affect the right of recovery.

Exceptions from superior court, Suffolk county; Albert Mason, Judge.

Action by David Craig and others against Julia B. French. Judgment for plaintiffs, and defendant excepts and appeals from the court's refusal to recommit the case to the auditor. Exceptions overruled. Appeal dismissed.

Robert Cushman and Charles T. Cottrell, for plaintiffs. H. Dunham, for defendant.

LATHROP, J. This is an action of contract. The declaration contains two counts. The first count is upon an account annexed for work and materials furnished by the plaintiffs to the defendant, and embraces charges for labor and for gas fittings furnished for and put into the defendant's house on Beacon street, upon an oral agreement by which the plaintiffs were to charge a fair and reasonable amount for the same. The second count is upon a contract in writing, by the terms of which the plaintiffs agreed, for $275, to perform all the labor necessary for the erection of certain plumbing fixtures in the same house, and to supply all the material used at an advance of 10 per cent. over the cost of the stock. The contract conIcluded with these words: "We hereby agree

to do all the plumbing work above the basement by October 1st, provided owner gives all assistance desired by us to forward the work. We agree to have the work in the basement completed ten days later." Annexed to this count was a bill of particulars. The plaintiffs also declared for certain additional labor and materials not included in the contract. The case was sent to an au

ditor, who found that the plaintiffs furnished the labor and materials set forth in the first count; that the prices therein charged as to almost every item were fair and reasonable; and that he had restated the account, changing the prices charged, as required by the evidence. As to the second count, the auditor found that the charges for labor and the quantity of plumbing material furnished were set forth with substantial accuracy, but that in most instances the prices charged for the material were excessive, and not justified by the contract. He therefore restated this account. The auditor also found for the plaintiffs for additional labor and material not included in the contract. Various defenses were set up, which were disposed of by the auditor in favor of the plaintiffs. He also found that the plaintiffs had, in substance, carried out the terms of their contract with the defendant. At the trial in the superior court the defendant asked that the report should be recommitted to the auditor, and took an appeal from the refusal of the judge to grant the motion. Much evidence was introduced by the defendant at the trial, and is set forth in the bill of exceptions, but the judge ruled that the auditor's report was prima facie evidence upon the questions of fact, and that upon the points wherein the report is attacked it remains evidence to be weighed with the other evidence. He also

found the facts to be as stated in the auditor's report, and found for the plaintiff's. The questions of law which arise in the case

as au

We do not understand from the brief of the defendant that any other question of law raised at the trial is insisted upon. The principal part of the brief is devoted to arguing questions of fact, which are not before us. Exceptions overruled. Appeal dismissed.

(181 Mass. 354)

FORBES ▼. APPLEYARD. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1902.)

MASTER AND SERVANT-CONTRACT-BREACH

RESCISSION-QUANTUM MERUIT.

Where an employé for an indefinite period was paid the contract price for his services to a certain date, at which time he was notified that his employer considered him on leave of absence for a month without pay, to which he yielded a dissatisfied assent, and thereafter claimed the contract to be in force, and retained the pay received, he cannot afterwards rescind the contract from the beginning, on the ground that such notification was a breach by the employer, and recover on a quantum meruit for the services theretofore performed and paid for.

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

Action by one Forbes against one Appleyard. From an order directing a verdict for only a portion of plaintiff's demand, and refusing to allow him to go to the jury for anything more, he brings exceptions. Excep

tions overruled.

Frank N. Nay and Wade Keyes, for plaintiff. Williams & Copeland, for defendant.

ditor, and also to the refusal give certain

exceptions.

1. The appeal may be briefly disposed of. A motion to recommit a case to an auditor is addressed to the discretion of the court, and is not the subject of an exception or of an appeal. Kendall v. Weaver, 1 Allen, 277; Packard v. Reynolds, 100 Mass. 153; Butterworth v. Assurance Co., 132 Mass 489; Carew v. Stubbs, 161 Mass. 294, 37 N. E. 171.

2. The first request for instructions, which was refused, was: "On the evidence the plaintiff cannot recover on the second count in the declaration." The plaintiff relies upon the case of Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. But we are of opinion that the case cited has no application to the case be fore us. In that case the plaintiffs had not performed the terms of their contract, and the question was what they were entitled to recover on a quantum meruit. In the case before us it has been found that the plaintiff's performed their contract, and they seek to recover on the contract, and not on a quantum meruit. The contract fixed the price of the labor, and stated the method of arriving at the price to be paid for materials, namely, the cost and 10 per cent. in addition. These sums the plaintiffs were entitled to receive under the contract. What the value was to the defendant was entirely immaterial,

engineer. The plaintiff's case is that he was employed by the defendant, and that the defendant broke the contract before it was completed. Therefore we assume that the suit is for a quantum meruit. See Canada v. Canada, 6 Cush. 15; Simmons v. Duck Co., 133 Mass. 298, 300. On that footing the bill of particulars charges three items; professional services from September 8 to November 3, 1900, inclusive; like services on November 12, and again from December 5 to December 8, both inclusive. The other items were for expenses. At the trial, as we understand the evidence, it was not denied that the plaintiff had been paid for his services and expenses up to November 1, and the judge, with the defendant's consent, directed a verdict for the plaintiff for the item of No vember 12 and for expenses incurred after November 1, and would not allow the plaintiff to go to the jury for anything more. The plaintiff excepted.

The course taken by the judge perhaps implied that the plaintiff might recover on a quantum meruit if the defendant had broken the contract, and in this, as a general proposition, there is no doubt that he was right. Fitzgerald v. Allen, 128 Mass. 232; Cook v. Gray, 133 Mass. 106, 111; Simmons v. Duck Co., 133 Mass. 298, 300; Goodman v. Pocock,

15 Q. B. 576; De Bernardy v. Harding, 8 Exch. 822; Bull v. Schuberth, 2 Md. 38, 57; 2 Smith, Lead. Cas. (10th Ed.) 32, 40, et seq., note to Cutter v. Powell. It will be noticed that the plaintiff did not seek to recover for loss of time or for anything except services actually rendered, so that the case does not present the question whether his rights with regard to such an item would be different in this action from what they would have been in a suit upon the contract. See Goodman v. Pocock, 15 Q. B. 576, 583, 584; Johnson v. Arnold, 2 Cush. 46; 2 Smith, Lead. Cas. (10th Ed.) 46. Therefore the most obvious question is whether there was any evidence of services from November 1 to November 3, or from December 5 to December 8. The defendant, it is true, denies that he made the contract in such form as to bind himself personally and that he broke it, but it is too plain for argument that there was evidence of personal liability for the jury, and we assume for the purposes of decision that there was some evidence of a breach.

We see no evidence that services were rendered during the times mentioned. On November 1 the plaintiff had notice that the defendant considered him on leave of absence for a month without pay, and at the time seems to have yielded a dissatisfied assent, although the defendant's taking this position now is relied on as the breach. In December the plaintiff says that the defendant still considered him on leave of absence. There is no evidence of work done during the earlier days in question, and nothing upon which a jury fairly could base a finding for December. Moreover, if the plaintiff after the breach relied upon saw fit to do further work mutually understood to be under the contract, he would be confined for his compensation to a suit upon the contract. Hyland v. Giddings, 11 Gray, 232.

We suppose, however, that the case is brought here upon a different and far more sweeping contention, although if we are right in our surmise the proposition is not developed very plainly. The plaintiff probably wanted to go to the jury for additional compensation for the time for which he had been paid, on the ground that the whole matter was set at large by the defendant's alleged breach of contract.

The plaintiff has not put himself in the position of rescinding the contract from the beginning. He has not returned or offered to return what he has received, but on the contrary has credited it, and as he received the money under the contract, he must be taken to have credited it under the contract. How far this course is consistent with a quantum meruit for any services we need not consider. It hardly is consistent with the position which we are supposing now to be assumed. Trecy v. Jefts, 149 Mass. 211, 212, 21 N. E. 360.

But there are further difficulties which seem to us too great to be overcome.

It may

be admitted that in some entire contracts a breach on one side pending performance would warrant a rescission and a return of what had been received as preliminary to a recovery outside the contract for all that had been done. On the other hand, in other cases the entirety of the contract at the outset might not be sufficient warrant for that course. It might be apparent that performance and payment were so far set against each other as equivalent that the past could not be disturbed. See Langdell, Cont. § 128. With regard to contracts of service broken after part performance, a doubt has been expressed by a very eminent judge whether there ever could be a rescission properly so called, or anything more than an emancipation of the servant from the contract for the future, as the past cannot be undone. Bowen, L. J., in Ice Co. v. Ansell, 39 Ch. Div. 339, 365. However this may be, the contract in this case as stated by the plaintiff seems to us too indefinite and too nearly an employment at will to warrant the course which the plaintiff desired to pursue. He was not em ployed for a definite time or for a definite task. There were expectations expressed that a power station would be built. But the plans were not made, and if nothing more was said than appears in the evidence, it cannot be questioned that the defendant was at liberty to change his mind if he saw fit. Under such circumstances the defendant's insisting that the plaintiff's stipulated absence on his own affairs should take the form of a leave of absence without pay, even if contrary to the earlier understanding, cannot be held to warrant the plaintiff in ripping up the whole period of his service and treating what was done and paid for as reopened for assessment by a jury. There is nothing to show that the defendant might not have dismissed him altogether. Furthermore the plaintiff is met by the further difficulty that he did not treat the contract as wrongfully ended by the defendant's course. The moment for him to treat the contract as repudiated, if ever, was on November 1, when he knew the defendant's position and answered him. But the plaintiff went on and did further work. His testimony shows that it was done or purported to be done under the contract. If he ever had an election he exercised it then.

Exceptions overruled.

(181 Mass. 329)

REAGAN V. LOMBARD et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1902. INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANTS.

Plaintiff was injured by the fall of curbstones piled in tiers on a wharf. The stones were lifted onto the wharf by a crane, and piled by plaintiff's fellow servants in tiers, with sticks or pieces of wood, selected by plaintiff's fellow servants, between the stones. The stones in the piles were moved at various times,