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Effie Hoffman?" The jury answered both questions in the affirmative. At the close of the evidence the executrix asked the court to rule that there was no evidence tending to show that the will was procured by fraud and undue influence on the part of Effie Hoffman. The court declined so to rule and the case is here on exceptions by the executrix to the refusal to give the ruling thus requested. All of the evidence is reported.
We think that the ruling was right. There was no direct evidence that the will was procured by fraud and undue influence on the part of Mrs. Hoffman; but the jury had all the facts and circumstances before them and we cannot say as matter of law that the conclusion to which they came was unwarranted.
The executrix was the second wife of the testator. His first wife died in April, 1899, and he himself died in November, 1903. At the time of the marriage the executrix was 30 years old and he was 75. She lived in Nova Scotia with her father where the testator saw her in August, 1899, for an hour in the presence of others for the first and only time, so far as appears till he met her later in Boston. A month afterwards she received a letter from him proposing marriage. There had been no communication between them in the meantime. She answered it and afterwards came to Boston. She saw him about three weeks after her arrival and in December they became engaged and on the 23d of that month they were married. His children were neither invited to nor informed of the marriage. There was evidence tending to show that he was unattractive in person, and that she made inquiries or was informed about his property, and a jury would be warranted in finding that the marriage was a mercenary one on her part. If her motives were mercenary the exercise of undue infiuence on her part would be more readily inferred than if they were not. There was testimony tending to show that after his marriage the relations between the testator and his children and their families, and old friends, and his previously declared intentions and views underwent a great change. His son had been in business with him for twenty years and their relations had been pleasant and harmonious. Without any just cause, as it could have been found, the testator terminated this relation and left the son to look out for himself and treated him in other ways very differently from what he had before. Before the marriage the grandchildren were on affectionate terms with their grandfather and were in and out of his house, and frequently took their meals there. This ceased after the marriage. Calls made by the son's wife were not returned, although the relations between her and the testator continued pleasant. The intimacy between the testator and an old and intimate friend, a Mr. Ships, gradually waned after the marriage without any cause on Ships' part, and when he spoke to the
testator about it, he said that his wife was not well-disposed towards Ships' wife, showing or tending to show the influence which she had acquired over him. Before the marriage the testator declared repeatedly that he would not make a will, and that his property should go according to the law and his children should have it. He promised his first wife in her last sickness that he would see that the children had it. After the marriage he made two wills the only difference between them being that he omitted from the last a legacy of $500 to the church of which he was a member which was contained in the first, and it was only at the suggestion of his legal adviser that he increased from $1,000 each to $2,000 each the legacies which he was at first disposed to give to his children. All the rest of the estate which amounted to upwards of $50,000 was given to the second wife. And he made of the scrivener the somewhat unusual request to say the least that he would make a memorandum which he did that his wife did not know of the matter.
Though the executrix testified that she never saw the will or its contents or a copy till after the funeral, she did not testify that she did not know of the making of the will though it is possible that she meant what she said to include that. Although the jury found that he was of sound mind, they might consistently with that have also found that physically he was at the time the will was made, a feeble old man suffering from a complication of diseases incident to his age, and that mentally he was in a condition to be easily influenced by a designing person. We do not mean to intimate that there was not evidence contrary to or tending to explain, various of the matters to which we have referred. But the question before us is not of the weight of the evidence, but whether it fairly warranted the conclusion to which the jury came.
Mere suspicion, however strong, is not of itself enough to warrant a finding of fraud and undue influence. On the other hand, it is not necessary that there should be direct evidence of fraud and undue influence in order to justify such a finding, though it often happens that such evidence is produced. It is of the nature of fraud and undue influence that they may be exercised in indirect and underhanded ways difficult to be come at, and to be judged of only by their results. The will of a testator may be coerced and fraud committed upon him in various ways, and what would constitute fraud and coercion in one case, might not in another. There is no hard and fast rule. A person may be so situated, so weak and feeble or so dependent on another, for instance that mere talking to him or pressing a matter upon him would so affect him, that, for the sake of quietness, he might do that which he did not want to do, and which, if his health had been better
or his will stronger, he would not have done. Such a case would constitute or might be found to constitute coercion as truly as force or duress. Wingrove v. Wingrove, L. R. (1885) 11 P. D. 81. So in relation to fraud, representations or acts which would make no impression or a slight impression on a man of mature years in the full possession of his bodily and mental faculties might readily affect one who from age and infirmity was less capable of weighing things truly and was more dependent on those about him.
In the present case the testator was advanced in years when the will was executed, and was or might have been found to be in feeble health and in a condition which rendered him an easy prey to one in marital relations with him. The marriage was or might have been found to be a wholly mercenary one on the part of the executrix. Indeed it would seem to be idle to suppose that it could have been otherwise. The making of the will and the disposition of his estate were contrary to the intentions of the testator as repeatedly expressed by him before his marriage. And the manner in which the estate was disposed of was or might have been found to be grossly unreasonable and unjust and in substance and effect wholly regardless of the claims which his children had upon him. These and other things which occurred after the marriage might have been found to be more consistent with the successful accomplishment of a scheme on the part of the wife to so dominate and control him as to lead him to execute a will in her favor contrary to his previously declared intentions and contrary to what he would have done if left to himself, than any other view.
The burden of proof was on the appellants; but, taking all the circumstances into account, we cannot say as already observed that the jury were not warranted in coming to the conclusion that the will was procured by fraud and undue influence on the part of the testatrix.
(192 Mass. 428)
TULANE UNIVERSITY OF LOUISIANA v. O'CONNOR et al.
(Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)
1. ALTERATION OF INSTRUMENTS-SEALS-ATTACHMENT WITHOUT AUTHORITY-EFFECT. Defendants signed a guaranty of a lease not under seal, for which there was a good consideration, and thereafter plaintiff's agent affixed seals to the guaranty without plaintiff's knowledge or authority. Plaintiff's agent was not authorized to bind plaintiff either by written lease or to contract in writing for the occupation of the premises; plaintiff having executed the lease after the guaranty had been sent to it by such agent. Held that, in the absence of anything to show a ratification by plaintiff of the agent's act, the seals did not invalidate the instrument nor prevent plaintiff from enforcing it as an unsealed obligation.
[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Alteration of Instruments, § 66.]
2. CORPORATIONS FOREIGN CORPORATIONSPOWER OF ATTORNEY-FILING-RIGHT TO SUE.
St. 1903, p. 313, c. 437, § 56, defines foreign corporations to be such as are organized under laws other than those of Massachusetts for purposes for which domestic corporations may be organized under section 7 (page 299). which authorizes organizations of corporations for any lawful purpose not excluded by section 1 (page 297), except buying and selling real estate and manufacturing intoxicating liquors. Section 1 applies with certain exceptions to corporations having a capital stock and established to carry on a business for profit, and section 58 requires such foreign corporations to file with the commissioner of corporations a power of attorney or certificate, as a condition to its right to do business in Massachusetts. Held, that section 58 related solely to business corporations, so that failure of a foreign university corporation to comply therewith did not deprive it of the right to sue in Massachusetts.
3. PARTIES-DEFENDANTS-PERSONS SEVERALLY LIABLE.
Under Rev. Laws, c. 173, § 3, providing that all persons severally liable on contracts in writing may be joined in one action, all of the signers of a guaranty were properly joined as defendants in a single action thereon, though the guaranty provided that they should be severally and equally, but not jointly, liable.
[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parties, § 32.]
4. PRINCIPAL AND AGENT-ACTS OF AGENTRATIFICATION-KNOWLedge.
Where a principal had no knowledge of the alteration of a guaranty by its agent, so as to change the same from a simple contract to a sealed instrument, until after suit had been brought thereon, its acts in bringing such suit did not amount to a ratification of the alteration.
[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 627-633.] 5. PLEADINGS-ELECTION BETWEEN COUNTS
Where, in an action on a guaranty, the declaration contained counts declaring on the guaranty, as a sealed instrument and as an unsealed instrument, and at the trial defendants did not ask that plaintiff be compelled to elect on which count it would proceed, but stated at the close of the evidence that they had no desire to go to the jury under the rulings made by the court, they could not thereafter object that plaintiff, by suing on the guaranty as a sealed instrument, lost its right to proceed thereon as a simple contract.
[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1355, 1370, 1371.]
Exceptions from Supreme Judicial Court, Suffolk County.
Action by the Tulane University of Louisiana against John O'Connor and others. There was a verdict in favor of plaintiff, and defendants bring exceptions. Overruled.
E. R. Thayer and J. F. Curtis, for plaintiff. Paul & & Barnard, for defendant Schlegelmilch. Clarence F. Eldredge, for defendant Rudd. H. V. Cunningham, for defendants Emerson and Crowley.
MORTON, J. This is an action against the guarantors of a lease made by the plaintiff to one O'Connor of the Hotel Plaza in Boston to recover four months rent. O'Con
nor, the lessee, was a defendant but before opening the case to the jury the plaintiff discontinued as to him, and also as to one other defendant. There was a verdict for the plaintiff and the case is here on exceptions by the remaining defendants to certain rulings made by the court at the close of the evidence and to the refusal of the court to give certain rulings requested by them.
The principal contention of the defendants is that after they had signed it, the guaranty was materially altered by placing seals against their respective signatures without their knowledge or consent. There was evidence tending to show that the fact in regard to the seals was as alleged by them and that the seals were probably placed there by one Hamlen, a real estate agent, who had charge of the property for the plaintiff and who died before the trial. The month and the day of the month which were left blank in the date when the defendants signed, were filled in in his handwriting, and no objection thereto has been made by the defendants. The testimonium clause called for seals and Hamlen may well have supposed that he was to affix them as well as to insert the month and the day of the month. It was undisputed that the defendants signed the guaranty, and that it was delivered to O'Connor after they had signed it and before O'Connor had signed the lease and that O'Connor signed the lease afterwards and before it was sent to the plaintiff. It was also undisputed that the lease and guaranty were sent by Hamlen to the plaintiff at New Orleans and that the lease was duly executed by representatives of the plaintiff on its behalf pursuant to a vote of the board of administrators of the Tulane Educational Fund which, it is not denied, was the proper body to act for and bind the plaintiff and that thereafterwards O'Connor entered and held under the lease. When the lease and guaranty were sent to the plaintiff they were in their present condition in all respects except that the lease had not been executed on behalf of the plaintiff. The defendants asked the court to rule on this branch of the case that "the putting of the seal opposite the defendant's name without his knowledge or consent is a material alteration and voids. the instrument altogether and the plaintiff cannot recover." The court declined to rule as thus requested, but ruled as follows: "There is no evidence that Hamlen was authorized to bind the plaintiff by a written lease or to make any contract in writing for the occupation of the premises. If there were no seals opposite to the defendants' signatures when they signed the guaranty, and if Hamlen or some one in his office subsequently affixed seals there without authority and then forwarded the paper to the plaintiff; and the plaintiff examined and considered it for the purpose of determining
whether to execute it and deliver it to O'Connor without knowledge of the change made by Hamlen, and if O'Connor accepted it and held under it, the liability of the defendant in this action is the same as if no seals had ever been placed upon the guaranty."
We think that the ruling was right. It is not contended that there was any evidence that Hamlen was authorized to bind the plaintiff by a written lease, or to conor to tract in writing for the occupation of the premises or that the plaintiff had any knowledge that the seals had been affixed by him, if he did affix them, after the guaranty had been signed by the defendants. There was a good consideration for the guaranty as signed by the defendants and the addition of the seals must be regarded as the act of a stranger and therefore as not affecting the obligation created by the unsealed instrument or the right of the plaintiff to maintain an action upon it as such. See Jeffry v. Rosenfeld, 179 Mass. 506, 61 N. E. 49. There is nothing to show that the plaintiff ratified Hamlen's act in putting on the seals or that it is estopped to rely upon the guaranty as it was before the seals were affixed. The ruling that was requested that the putting on of the seals rendered the guaranty void was therefore rightly refused.
2. The defendants contend in the next place that the action cannot be maintained because the plaintiff which is a foreign corporation had filed no certificate or power of attorney with the commissioner of corporations as required by Rev. Laws, c. 126, § 4, or St. 1903, pp. 313, 314, c. 437, §§ 58-60. But those provisions apply to business corporations and not to literary or charitable institutions like the plaintiff. This is evident from an examination of the statutes. The act which was in force when this action was brought was St. 1903, p. 296, c. 437, Rev. Laws, c. 126, having been repealed by St. 1903, p. 321, c. 437, § 95. The foreign corporations referred to in St. 1903, pp. 313, 314, c. 437, §§ 58, 60, which are required to file with the commissioner of corporations the power of attorney and the certificate therein provided for are such as may be organized under laws other than those of this commonwealth for the purposes for which domestic corporations may be organized under section 7. Domestic corporations may be organized under section 7 for any lawful purpose not excluded by section 1 except buying and selling real estate and manufacturing intoxicating liquors. And section 1 applies, with some exceptions not now material to "corporations having a capital stock and established for the purpose of carrying on business for profit;" in other words to business corporations. The fact that the plaintiff has caused repairs to be made on the property and for some reason that is not disclosed, had a representative in the liquor licenses that
were issued for the hotel does not constitute it a business corporation within the meaning of the statute. The case of Santa Clara Female Academy v. Sullivan, 116 Ill. 375, 384, 6 N. E. 183, 56 Am. Rep. 776, cited by the defendants is in the plaintiff's favor as we read it.
3. Lastly the defendants contend that they cannot be sued jointly and separate judgments entered against them, and that by bringing suit upon the guaranty as altered the plaintiffs have ratified the alteration and cannot now maintain an action upon the guaranty as it was before altered. Rev. Laws, c. 173, § 3 expressly provides that "all persons who are severally liable upon contracts in writing may be joined in one action" and that the declaration may contain one count only discribing the several contracts if the same contract was made by all or different counts describing the different contracts if the same contract was not made by all. In this case the guaranty was signed by all of the defendants and provided that they should be severally and equally but not jointly liable and there were different counts describing the different contracts entered into by the defendants. The case is clearly within the statute. See, also, Colt v. Learn
ed, 118 Mass. 380. The alleged alteration was not discovered by the plaintiff it is said, till after the suit had been brought and answers had been filed by the defendant setting it up and at the close of the trial the plaintiff was permitted by the court to amend its declaration by adding counts declaring upon the guaranty as an unsealed instrument. There is no ground for the contention that the plaintiff has lost any rights by election or ratification. It could not ratify what it did not know, and the defendants did not ask that it should be required to elect whether it would rely on the counts declaring on the guaranty as a sealed or an unsealed instrument, even if it could have been compelled to do so, but stated at the close of the evidence that they had no desire to go to the jury under the rulings made by the court and verdicts were thereupon returned against the defendants Schlegelmilch and Rudd separately and Emerson and Crowley jointly it being in substance agreed that they intended to become jointly liable for one third of the rent though their separate signatures were affixed to the guaranty.
The result is that the exceptions must be overruled.
(192 Mass. 426)
PIKE V. BOSTON ELEVATED RY. CO.
Where a passenger rode on the front platform of an electric car, though he knew there was a sign on the car notifying passengers that if they rode on the platform they did so at their own risk, and though there was room in the car, he is not entitled to recover for injuries which would not have occurred if he had ridden in the car, though his fare was collected and he was not warned of the danger. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1371, 1375-1382.]
Exceptions from Superior Court, Suffolk County; Henry N. Sheldon, Judge.
Action by one Pike, administratrix, against the Boston Elevated Railway Elevated Railway Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled.
C. J. Rueter and G. W. Anderson, for plaintiff. Endicott P. Saltonstall and Sanford W. E. Freund, for defendant.
MORTON, J. This is an action brought by the plaintiff's intestate in his lifetime, and prosecuted by the plaintiff as his administratrix after his death to recover for injuries sustained by him, while riding on the front platform of one of defendant's cars, from a collision between the car and a repair wagon belonging to the defendant. The accident occurred October 11, 1901, at about 5:30 a. m.; the morning being dark and foggy.
The deposition of the plaintiff's intestate was taken and he testified on cross-examination that he rode into town every morning on the electric cars and made it his custom to ride on the front platform, and had read the signs that passengers riding on the front platform did so at their own risk, and knew, if the sign was a rule of the company that he took the risk of an accident happening, and that by standing on the front platform he was not breaking a rule of the company but stood there at his own risk. It appeared that the only other person on the platform was the motorman. The plaintiff's intestate paid his fare and nothing was said to him by the conductor or motorman about standing on the platform. It was admitted by the defendant that people frequently rode on the front platform, the defendant contending that they did so subject to the rules of the company, and that fares were collected from them and that neither the conductor nor motorman objected to their so riding. For aught that appeared there was room enough inside the car and it was not contended that plaintiff's intestate would have been injured if inside the car. At the close of the evidence the court, on defendant's motion, ordered a verdict for the defendant, and the case is here on exceptions by the plaintiff to the ruling thus made.
We think that the ruling was right. The ase seems to us to be governed by Burns v.
Boston Elevated Ry. Co., 183 Mass. 96, 66 N. E. 418, and McDonough v. Boston Elevated Ry. Co., Banker & Tradesman, May 26, 1906, and not, as the plaintiff contends, by McNee v. Colburn Trolley Track Co., 170 Mass. 283, 49 N. E. 437, and Sweetland v. Lynn & Coston R. R., 177 Mass. 574, 59 N. E. 443, 51 L. R. A. 783. In the Sweetland Case the notice, as stated in the opinion, purported "to be a prohibition of passengers from riding on the front platform, and not a notice stating the terms on which they may ride there." In the present case the notice did not forbid passengers to ride on the front platform, but stated the terms on which, if they rode there, they would be carried, namely, at their own risk. In the McNee Case the notice was similar to this but there was only one elevator, and that was unsafe, and, the workmen were expected to use it notwithstanding the notice. The same is true in substance of Boyle v. Columbia Fire Proofing Co., 182 Mass. 93, 64 N. E. 726. In the present case the defendant furnished a safe place for plaintiff's intestate to ride in and instead of riding there he road on the front platform knowing that he thereby took the risk. There is nothing to show that the defendant provided the front platform unconditionally as a place for its patrons to ride on. The remark of the plaintiff's intestate that the rule was a dead letter was, at the most, only an expression of opinion, and had no tendency to show that the rule had been waived or abandoned by the defendant. Neither did the fact that the conductors collected fares from the persons riding on the front platform and that neither they nor the motormen objected to their riding there tend to show that the rule had been waived and abandoned. Front platforms are not places ordinarily provided for passengers, and the conductors and motormen may well have supposed that persons riding there were content to do so under the rule and at their own risk.
(192 Mass. 455) REVERE WATER CO. v. INHABITANTS OF TOWN OF WINTHROP. INHABITANTS OF TOWN OF WINTHROP v. REVERE WATER CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)
1. MUNICIPAL CORPORATIONS-OFFICERS-SELECTMEN-GOOD FAITH-DUTY TO EXERCISE. Where the selectmen of a town are called on to act on a proposition to purchase a water plant for the town, they are bound in good faith to buy at the lowest price for which the property can be purchased, and are personally liable for any pecuniary loss resulting from corrupt action or a failure to act in good faith.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 380.]
2. CONSPIRACY-UNLAWFUL ACT-UNLAWFUL
Where the selectmen of a town were charged with an abuse of their trust by entering