the plaintiff offered to extend the time for payment thereof "into the year 1913." That offer was "accepted by the defendant and said acceptance was thereafter confirmed and reiterated by the defendant in its letter written to the plaintiff on or about March 24, 1913, whereby the defendant agreed to pay to the plaintiff full royalties or license fees on a minimum of twenty machines computed as provided in said agreement for each of the years 1912 and 1913, at the expiration of the year 1913." The plaintiff offered to show that in a conversation at the Hotel Thorndike in Boston held on February 6, 1913, it proposed "to allow the defendant to continue to manufacture and sell hide-working machines under contract during the year 1913 and not call upon the defendant for the payment of the amount which the plaintiff claimed to be due as royalties or license fees for the year 1912 upon the minimum of twenty (20) machines as stated in this letter of February 6, 1913, provided the defendant would pay at the expiration of 1913, the amount which the plaintiff claimed due as royalties or license fees as stated in this letter of February 6, 1913, together with the unpaid royalties or license fees, if any, on a minimum of twenty (20) machines for the year 1913, computed according to the terms of the contract, which proposal the defendant's representative agreed to, and further agreed to write the plaintiff a letter setting forth the defendant's acceptance of said proposal." This conversation was excluded by the presiding judge subject to the plaintiff's exception.

We are of opinion that the conversation was admissible. If believed, it shows that the parties modified the terms of the original contract and that the defendant agreed to pay license fees on a minimum of twenty machines whether they were manufactured and sold or not. The parties, if they saw fit to do so, could change the original contract by a subsequent written instrument or by oral agreement. Bartlett v. Stanchfield, 148 Mass. 394. Ellis v. Block, 187 Mass. 408. Goodhue v. Hartford Fire Ins. Co. 175 Mass. 187.

The evidence of the oral agreement could not properly have been excluded either because not pleaded or on the ground that the contract had been reduced to writing by the parties.

If the jury had believed the testimony offered by the plaintiff and excluded by the judge, a final agreement was made that, in con

sideration of the plaintiff not cancelling the agreement of January 10, 1912, (as it had a right to do because the defendant had failed to manufacture and pay fees on twenty machines during the year 1912,) the defendant agreed that it would pay the plaintiff license fees on twenty machines during each of the years 1912 and 1913, whether that number was or was not manufactured during those years. It was said in Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 196 Mass. 72, at page 82: "There is nothing inconsistent in the plaintiff's accepting a written offer both by word of mouth and in writing. And if it turns out that, through an unguarded expression in the writing, the writing is not, although it was intended to be, an acceptance, the oral acceptance which is not open to that objection is good." See also Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf. Co. 202 Mass. 177, and Ellis v. Block, supra.

In view of the conclusion reached it is unnecessary to consider the other exceptions taken by the plaintiff to the exclusion of evidence.

As the exclusion of the evidence of the oral agreement was error, in accordance with the terms of the report, judgment must be entered for the plaintiff in the sum of $5,094.

So ordered.

JOHN MATHEWSON vs. EDISON ELECTRIC ILLUMINATING
COMPANY OF BOSTON.

DONALD U. B. ROBERTSON vs. SAME.

Middlesex. January 21, 22, 1919. April 12, 1919.

Present: RUGG, C. J., LORING, BRALEY, CROSBY, & CARROLL, JJ.

Agency, Scope of employment. Evidence, Presumptions and burden of proof, Of intention, Matters of common knowledge. Motor Vehicle.

In an action against a corporation for personal injuries resulting from a collision of the plaintiff, when on a motorcycle, with a motor vehicle owned by the defendant and driven by one alleged to have been its employee and to have been acting within the scope of his employment, where an issue is, whether the driver was acting within the scope of his employment, and it appears that, in obeying instructions of the defendant to go between two cities named, he chose to go by a route five and five tenths miles, rather than by a route three

and six tenths miles long, the intention of the driver in taking the longer route is an important element to consider, and evidence thereof is material. Deviation by a servant from a regular course, or travelling by a longer route than is required to reach his prescribed destination in the performance of his master's business, is not conclusive evidence that he is not then acting within the scope of his employment.

It is a matter of common knowledge that motor vehicles can be run over smooth ways where there is little or no street traffic much more easily, safely and quietly than over rough roads or where their progress is delayed by the presence of other vehicles or by the receiving or discharging of passengers from street cars; and such matters, therefore, are proper to be considered in the action above described in determining whether a deviation by the driver of the defendant's motor vehicle from a shorter route, which was less desirable for the motor vehicle for the reasons above named, to a longer, more desirable route, was an abandonment of the defendant's business.

Upon evidence at the trial of the action above described, tending to show that the longer route was taken by the defendant's driver with an intention to reach his prescribed destination by the quickest and best route for the motor vehicle, it was held that a finding was warranted that the driver, when he ran into the plaintiff, was acting within the scope of his employment by the defendant. At the trial of the action above described, the defendant's driver was called as a witness by the plaintiff and testified that he had taken a companion on the trip with him. There was no evidence that he had concealed this fact. The defendant attempted to introduce evidence tending to show that he had stated to one of its claim agents that he had taken such companions with him. The evidence was excluded. Held, that the exclusion was proper.

TWO ACTIONS OF TORT, the first for personal injuries and the second for personal injuries and damage to the plaintiff's motorcycle, alleged to have resulted from a collision with a motor vehicle of the defendant carelessly driven by one of its employees in the course of his employment. Writs dated November 4, 1916.

In the Superior Court the actions were tried together before Hitchcock, J. The material evidence is described in the opinion. Crossman, the driver of the defendant's car at the time of the accident, was called by and testified for the plaintiff.

At the close of the evidence the defendant moved that verdicts be ordered in its favor. The motions were denied. The defendant further asked for the following rulings:

"2. If it appears that the chauffeur Crossman, at the time of the accident to the two plaintiffs, was using the defendant's automobile in violation of one of the rules established by the defendant for the use of its automobiles, the defendant is not responsible for the negligence, if any, of the chauffeur at the time of the accident."

"4. The rule prohibiting the use of the defendant's automobiles 'off the course on which (the chauffeur's) duties would naturally take him, or indulging in any practices savoring on "joy riding," was a reasonable rule or regulation.

"5. It was not necessary, in order to make the rule referred to binding on all its chauffeurs (or, in particular, upon Crossman,) that the defendant be obliged to call the attention of each chauffeur (thus including Crossman) to the notice; the defendant had performed its whole duty and had done all that the law required of it to make the rule operative when it posted the notice containing the rule in a place where the notice could be read by the chauffeurs.'

"9. The fact, if it be a fact, that the chauffeur Crossman at the time of the accident was intending to take the defendant's automobile to the defendant's garage, does not make or bring him at the time of the accident within the scope of his employment, unless at the time of the accident he was on the direct route from Woburn or Arlington (the last place he did work for his employer) to the company's garage on Massachusetts Avenue.

"10. The intention of the chauffeur Crossman, if it existed at the time of the accident, to take the defendant's automobile to the defendant's garage, is material only if he was upon the direct route from Woburn or Arlington Centre to the garage.

"11. The facts that Norris was with the chauffeur at the time of the accident and that Norris owned a house on Concord Avenue, which was along the route chosen by Crossman, are facts which the jury may consider upon the proposition whether Crossman was engaged at the time of his accident upon the defendant's business.

"12. A man's intentions may be gathered from his acts as well as from his words, and the maxim that 'Actions speak louder than words' may be taken into account by the jury in arriving at Crossman's intention at the time of the accident.

"13. If, at the time of the accident, Crossman was taking his friend Norris to ride and to or by the latter's house by a route other than the direct route called for by his (Crossman's) employment, he (Crossman) was not engaged in his master's business, and the defendant is not responsible for his negligence, if any."

“18-b. A deviation from the direct route of nearly or practically

two miles is not so comparatively insignificant as to make the defendant responsible for Crossman's acts."

"20. If Crossman immediately after the accident and while still in the defendant's employ, instead of informing the defendant that he was on Pleasant Street for purposes of his own or for no purpose connected properly with the defendant's business, gave the defendant to understand that he had honestly, unintentionally lost his way while on the way back to the defendant's garage; any payment by the defendant to Crossman of his wages which might otherwise be evidence of a ratification by the defendant cannot be given the effect of a ratification so as to make the defendant liable to the plaintiffs for Crossman's acts.

"21. Until and unless the defendant had full knowledge of the plaintiffs' accident (including their account of it as well as Crossman's), there could be no ratification by the defendant of Crossman's acts."

The rulings were refused. In answer to special questions, the jury found that both plaintiffs were in the exercise of due care, that Crossman was negligent and that he was engaged in prosecuting the business of the defendant and was acting within the scope of his employment in returning to the garage of the defendant through Pleasant Street and Concord Avenue.

In the first action the jury found for the plaintiff in the sum of $3,000, and in the second action they found for the plaintiff in the sum of $3,000 on a count for personal injuries and in the sum of $85 on a count for damage to the motorcycle. The defendant alleged exceptions.

E. C. Stone, for the defendant.

D. E. Hall, (P. S. Broderick with him,) for the plaintiffs.

CROSBY, J. These are two actions to recover for personal injuries received by the plaintiffs by reason of a collision of a motorcycle, upon which they were riding, with an automobile of the defendant driven by one Crossman who was in its general employ but who, it contends, was not then acting within the scope of his employment. The accident occurred on a Sunday morning at the junction of Pleasant Street and Concord Avenue in Belmont. There was evidence tending to show that the plaintiffs were in the exercise of due care and that Crossman was careless.

On the morning of the accident Crossman was directed by the