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Taking the words as a condition which meant forfeiture for breach, we naturally are not disposed to take them as meaning any more than they say in terms, and we should give the grantees the benefit, in case of doubt. We do not read the condition as intended to bind the land for all time to a building line inside the boundaries of the conveyance. It says nothing about such a line. If one were mentioned, the case would be very different. The words “regular and uniform” cannot be taken to refer to the line of fronts without something of a strain, for, if they do refer to it, they provide no standard of regularity and uniformity, so that it would seem that the first builder would set the rule for the rest. The vote deals with a large amount of land, not all alike in circumstances, and the condition in terms refers to buildings, not to land. We are of cpinion that the words are given sufficient force if they are confined, at most, so far as the present question is concerned, to the original construction of the buildings first erected,—those which it was expected would be erected, and which were erected in fact, soon after the town had made its sales. It seems to us that it would be going too far to interpret the words as binding the owner of every lot into which the land might be cut up to adhere for all time, and under whatever change of conditions and circumstances, to a building line other than that of the conveyances, determined by the accident of what the first builder chose to do. But, further, we have not been able to persuade ourselves that the condition confers any rights upon the plaintiffs, whatever its construction. The general difficulty which we have stated is made insuperable, to our minds, by the specific purposes shown on the face of the condition itself. The town evidently was considering only appearance and safety from fire, and both only in the public interest. We do not think that the plaintiffs can claim under it, as granted by implication, rights which it is practically certain never were intended to be conferred. The repetition of the condition in the later deeds did not purport to enlarge the obligations or rights originally created, whatever those obligations or rights might turn out to be. It is argued that the uniformity of the line of buildings warrants the finding of a parol contract which may be enforced. The judge who tried the case found the other way. The condition in the deeds sufficiently explains how the line of fronts came to be uniform, and it would be extravagant to say that uniformity between adjoining houses, unexplained and by itself, warrants a finding that it was due to an agreement binding the land that the line of building should be the same forevermore. In 1877 the house on the defendant's land was altered from a dwelling house to a shop. The four feet in question were taken into the basement story, and were covered, at a level with the adjoinging sidewalk, with Hyatt lights, made of iron and glass, and adapted
at once to light the basement and to serve as a pavement for travel. For some years, it may be assumed, the public walked over the space more or less. It is argued that this was a dedication of the four feet as a footway. We rather should have supposed it imported a license than anything more. But, if a dedication was attempted, it cannot be taken to have been a dedication otherwise than as a part of the street of which it formed a part to the eye; in other words, as a highway, not as a footway. The only reason why it was even argued to have been otherwise is because dedication of land for a highway without the consent of the town was then and still is impossible. Gen. St. c. 43, § 82; Pub. St. c. 49, § 94.
It also is argued that there is a way by prescription. It clearly appears that there was no such way when the bill was filed. It would seem that there had been no continuous adverse use for nearly the necessary time when the bill was filed. If there had been such continuous use, it probably was interrupted, and certainly does not appear not to have been, by the erection of the defendant's new building. Finally, if there had been a public way of any kind, either by dedication or by prescription, it is at least doubtful whether that fact would have furnished a ground for the plaintiffs' bill. Harvard College v. Stearns, 15 Gray, 1; Stanwood v. City of Malden, 157 Mass. 17, 18, 31 N. E. 702; Shaw v. Railroad Co., 159 Mass. 597, 35 N. E. 92.
SAUNDERS et al. v. RUSSELI, et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1898.) INsolvex cy—PREFERENCEs—Evi DENCE. A mortgage was made by an insolvent. whose financial reputation was bad, to an em; ployé of a large firm of creditors, who indorsed his note to them. The creditors had demanded security, and were unwilling to accept a mortgage directly to themselves. Hold, that all part ties must have known of the insolvency, and the mortgage amounted to a preference. Appeal from superior court, Suffolk county. Suit by one Saunders and others, assignees, against one Russell and others. There was a decree for plaintiffs, and defendants appeal. Affirmed.
Moulton, Loring & Loring, for appellants. E. B. Hale and Caleb Saunders, for anpellees.
HOLMES, J. This is a bill in equity, brought by the assignees in insolvency of one Courtemanche, to set aside a mortgage as a preference. The case was tried in the superior court, and a decree was made for the plaintiffs. It now is here by appeal on the evidence. It presents only questions of fact.
The petition in insolvency was filed on April 16, 1897. The date of the mortgage is March 1, 1897. At that time the mortgagor plainly was insolvent, and knew it. Hyde & Southworth, among other creditors, were pressing him, having stopped giving him credit about January 16th. They do not admit knowledge of Courtemanche's condition, but their actions, and indeed the admissions that come out in their testimony, show very plainly that they knew it. They cannot have failed to know it. They were a large and intelligent business house, and Courtemanche's financial reputation was bad. Lee v. Kilburn, 3 Gray, 594. They wanted security, and did not want to take a mortgage, because they did not think it prudent to do so. They suggested that Courtemanche should find an indorser. This he could not do, until in some way it occurred to him that he might get Hyde & Southworth's right-hand, man, who charge of collecting their bills, one Russell, to indorse for him on giving him security for his indorsement. This was put into execution. He gave Russell a mortgage of all his property with exceptions not worth mentioning, and Russell indorsed a sixmonths note to Hyde & Southworth for his debt. Courtemanche received no other consideration, and his conveyance properly would be found not to have been made in the usual course of business. Peabody v. Knapp, 153 Mass. 242, 26 N. E. 696. According to the testimony, the mortgage was executed before Hyde & Southworth were told about it. Russell was paid as well as secured for his indorsement, and the liability assumed by him to the partners is a real liability, and the only object of the transaction, so far as they were concerned. But it does not need argument to show that, if this mortgage had been given to Hyde & Southworth directly, it would have been a flagrant preference; and it needs very little to show that the above arrangement might be found, and, as we think, ought to be found, to be a mere device to reach the same end by more roundabout means. The examination of the defendants shows that their testimony cannot be accepted without reservation where their interest is concerned. We are compelled to reject their protestations of ignorance and innocence as not to be believed. When Russell testifies that he knew that the arrangement would be acceptable, we infer either that the firm had made use of this device before, or had authorized it in this particular case. It is hard to believe that Russell should have come into the scheme, and should have accepted a bona fide liability in exchange for a mortgage of property which he had not. examined at the time, and which probably was not enough to secure him. On the other hand, the nature of Russell's relation to his employers, their demand for security, and their cautious unwillingness to accept a mortgage directly to themselves, make it most likely that What was done had the
same end in view. But the Whole matter may be put more shortly. Russell the mortgagee knew that Courtemanche was insolvent. He knew that the only motive Courtemanche had for executing the mortgage, other than that of delaying creditors, which also is avowed by Courtemanche, was to give further security to Hyde & Southworth without receiving any new consideration from them. He knew, in other words, that the intent was to prefer them. It can make no possible difference that the attempt was made in the manner described, instead of the more direct one of a mortgage to the firm. Pub. St. c. 157, § 96; Whipple v. Bond, 164 Mass. 182, 41 N. E. 203.
Decree for plaintiffs.
CONSOLIDATED HAND-METHOD LASTING-MACH. CO. v. BRADLEY et al.
(Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.)
Notice to INDEMNitors—DUty to Defend SUITREs JUD1GATA. 1. A notice of the pendeney of an action, to persons claimed to be ultimately liable, which does not require them to defend the action, or offer to surrender its defense to their control, is not sufficient to charge them with a judgment against one primarily liable, with costs and attorney's fees. 2. St. 1887, c. 270, provides that where an employé is killed because of a defect in the ways, works, or machinery, used in the business, which had not been discovered and remedied, because of the negligence of the employer, the personal representatives of such employé may maintain an action against the employer, and recover an amount according to the degree of his culpability. Held, that a judgment rendered in an action under this statute against a sublessee of part of a factory, for the death of his servant caused by a defective electric light furnished by the sublessors, which they had undertaken to keep in repair, was assessed with reference to the culpability of the employer, and was not binding upon the sublessors in an action by the employer to recover the amount of the judgment. 3. The sublessors were liable, if at all, only for stich damages as arose from their breach of contract to keep said lights in repair. Exceptions from superior court, Suffolk county; Justin Dewey, Judge. Action by the Consolidated Hand-Method Lasting-Machine Company against Arthur I. Bradley and others. From a judgment in favor of plaintiff, defendants bring exceptions. Exceptions sustained.
Strout & Coolidge and G. S. Selfridge, for plaintiff. C. C. Barton, A. M. Lyman, and C. C. Barton, Jr., for defendants.
FIELD, C. J. The next of kin of John M. Tierney, an employé of the plaintiff, brought suit against the present plaintiff, under St. 1887, c. 270, in which they alleged, in the first count, that John M. Tierney was instantly killed from injuries received by reason of a defect in the ways, works, and machinery of the present plaintiff, which had not been discovered or remedied, owing to the negligence of a person in the employ of the plaintiff, and intrusted with the duty of seeing that the ways, works, and machinery were in proper condition. In the second count they alleged that said John M. Tierney sustained bodily injuries, from which he died without conscious suffering, by reason of the negligence of a person in the service of the present plaintiff, intrusted with and exercising superintendence, whose sole and principal duty was that of superintendence. The specific cause of the injury which resulted in the death of John M. Tierney is alleged in the first count, and that is the defective condition of an electric lamp and an electric current charged with electricity. The next of kin amended their declaration by adding a third count, which, so far as material to the present suit, did not differ from the first count. The present plaintiff, the defendant in that suit, answered by a general denial; and on the trial the jury found for the plaintiffs, and assessed damages in the sum of $3,000. The defendant in that suit filed exceptions, and a motion for a new trial. A new trial was ordered unless, the exceptions being waived, the plaintiffs would remit $1,500 from the amount of the verdict. The plaintiffs remitted this sum, and judgment was entered for $1,500 damages, and the costs of suit, which the defendant in that suit paid. The present suit was brought by the defendant in that suit against the present defendants to recover the amount of that judgment, and the costs and counsel fees incurred in the defense of that suit. Before the trial of the original suit the present plaintiff gave the defendants the following notice: “Boston, Mass., May 31, 1893. Messrs. Bradley & Woodruff, 234 Congress St., Boston, Mass.-Dear Sir: The suit of Tierney v. Consolidated HandMethod Lasting-Machine Company for the death of John Tierney, January 1, 1891, when he was killed, the result of touching or holding the electric light apparatus in the room occupied by the machine company, where the electricity was furnished by you, will come on for trial on Monday next in the second Session of the superior court. We hope and expect to be able to win the case, and thus relieve the parties from liability. In case, however, we should be beaten, we shall look to you to recompense the machine company; and we shall expect you to assist in the conduct of the defense of the case. Yours, truly, Strout & Coolidge, Attorneys for C. H. M. L. Machine Co.” The exceptions in the present case recite as follows: “The defendants were not consulted as to the manner in which the defense should be conducted, although they were present at the trial.” It appears, also, that the exceptions in the original suit were waived without the knowledge or consent of the present defendants. The substantial ground of the liability of the present defendants is alleged in the declaration in the present suit, as amended, to be as follows: “Second count, 50 N.E.-30
same cause of action: And the plaintiff says that on the 10th day of January, 1891, it was engaged in the business of manufacturing and selling machinery used for making shoes, in the sixth story of the building No. 234 Congress street, in the city of Boston, occupied by it as lessee of the said defendants; that prior to said 10th day of January, 1891, the plaintiff entered into a contract with the said defendants, by which the said defendants agreed to furnish, by proper and suitable appliances, electricity for the purpose of lighting the premises so occupied by said plaintiff, and to keep all fixtures, wires, converters, and other appliances used in furnishing electric lighting in repair, so that the same would be safe to use; and said defendants were then and there bound to furnish electricity for lighting purposes with safe, proper, and suitable machinery, fixtures, and other contrivances therefor, and that the same should be kept in proper condition and repair, and that a suitable amount of electricity should be furnished to afford said lighting safely and properly, without peril to employés of said plaintiff arising from any defective condition or careless management thereof. And the plaintiff further says that the said defendants furnished said currents of said electricity for said lighting from a dynamo under their sole control, and also on said 10th day of January, 1891, from what was known as the ‘city current of electricity,' furnished by the Boston Electric Light Company; and it was in the power and control of the defendants to turn on or shut off said electric current at their pleasure, and said dynamo and appliances for furnishing said current were not in possession of, nor under the control of, the plaintiff. And the plaintiff further says that on said 10th day of January it had in its employ one John Tierney, who was engaged in running a lathe that was lighted by said defendants. That prior to and on said 10th day of January, 1891, the means and appliances used by the said defendants for furnishing said electricity for lighting purposes had become defective and unsafe, and the same were not safe to be used with the city current aforesaid, furnished by said Boston Electric Light Company; and especially the converter used in furnishing said current was out of repair and unsafe, and the wires and other appliances connected with said lighting were out of repair and dangerous, and were not properly insulated. The plaintiff says that on said 10th day of January, and at divers times before said date, it notified the said defendants of said unsafe condition, and that thereupon, on said 10th day of January, the said defendants undertook and agreed to shut off said current of electricity from said circuit, and to keep the same shut off, with the exception of half an hour before noon and five minutes before six at night; and thereupon the said plaintiff, believing that said defendants would shut off said current, informed said Tierney that the same would be shut off, and would remain shut off, as aforesaid. And the said plaintiff says that said information was untrue, and tended to mislead and did mislead the plaintiff into giving the information to said Tierney, and that thereupon said Tierney, by reason thereof, and the defective condition of said appliances for lighting, taking hold of the socket of the lamp which supplied his lathe, received the entire current, which had not been shut off by said defendants, as they had led the plaintiff to believe; and thereupon said Tierney received injuries from which he shortly after died.” All the counts of the declaration in the present suit allege notice to the present defendants to come in and defend the original suit, and that they neglected to do so, whereupon the present plaintiff defended it. The jury in the present suit rendered a verdict for the plaintiff, and assessed damages to the amount of the judgment in the original suit, and of the amount expended for costs and for counsel fees therein, with interest. In the trial of the present suit the defendants made 22 requests for instructions, which, with the exception of the fifth and sixth requests, were not given, except as appears in the charge of the presiding justice. The eighteenth and nineteenth requests were as follows: “(18) The notice dated May 31, 1893, was given too late, and was insufficient in form and substance, to bind these defendants. These defendants are not bound by the amount of the judgment recovered against the plaintiff by Tierney.” Many of the other requests proceed on the ground that the plaintiffs in the original suit, being the next of kin of John M. Tierney, had no cause of action against the present defendants, and that they recovered judgment against the present plaintiff on the ground of the negligence of the plaintiff, or of some persons in its service intrusted with the duty of seeing that its ways, works, and machinery were in proper condition, or intrusted with and exercising superintendence, and that there can be no contribution between wrongdoers. In the original suit the damages to be recovered, by the terms of the statute, were to be “not less than five hundred and not more than five thousand dollars, to be assessed with reference to the degree of culpability of the employer herein or the person for whose negligence he is made liable.” St. 1887, c. 270, § 3. Upon the question of the notice to come in and defend the original suit, the presiding justice charged the jury as follows: “There is evidence that the defendants were notified of that suit, and had an opportunity to come in and defend, and I don't know that any question is made about that notice. If there is, the plaintiffs must satisfy you that that notice was given at a reasonable time, so that the defendants had a reasonable opportunity to avail themselves of their knowledge, to furnish evidence and to take part in the trial, and to do
whatever was reasonable and lawful to defend their interests. The binding force of the judgment grows out of the fact that such notice has been given, and such opportunity afforded, to the defendants. I do not understand that any question is made here about the terms of the notice not being sufficiently particular. I didn't hear it read but once, and I haven't seen it, but it doesn't strike me that there was any material defect in the form of the notice. Whether it was given in time or not—sufficient time—is for you to determine, if there is any question made about it. If the notice was seasonably given, and if there is this liability over on the part of the defendants, then that suit settles three things: It settles, in the first place, the right of the plaintiff to recover in that action; in other words, that Mr. Tierney was not guilty of any carelessness, that there was nothing in his conduct why he should not recover. It settles another proposition,-another fact; and that is that the premises of the present plaintiffs —this room, this lamp, in connection with the electricity running it, was in a defective condition. And it settles the third thing, and that is the amount of damages which the plaintiff in that action was entitled to. So the parties in this suit, if the other steps were properly taken, the defendants in this suit, cannot contest the question of Mr. Tierney's right to recover, nor the question whether the lamp was defective or not, nor the question of the amount of damages.” The exceptions also recite as follows: “At the close of the charge the defendants' counsel specifically excepted to the refusal of the court to give the rulings requested, save rulings 5 and 6, which were given, whereupon the court said to the counsel for the plaintiff: ‘Counsel on the other side are excepting to my refusal to give all their requests.” “Whether you care to look them over, and have some of them given, I don't know.’” And counsel replied that “he would trust the court.” We are of opinion that the notice is not sufficient to make the judgment in the original suit conclusive upon the present defendants as to the amount to be recovered, if anything is to be recovered, and that the exceptions to the refusal of the presiding justice to give the eighteenth and nineteenth requests are open to the defendants, although, the presiding justice relying upon the counsel, the plaintiff seems not to have examined carefully the form of the notice. The notice given implies that the counsel of the defendant therein, the present plaintiff, intended to take the control of the defense of the suit. The counsel might well doubt whether the suit was one which the present defendants were required to defend. They gave the defendants notice that they should look to them to recompense the present plaintiff if they should be beaten in the suit, and that they should expect the present defendants to assist in the conduct of the defense, but they did not offer to surrender the control of the defense. Whatever may be the form of such a notice, under the circumstances in which it is given we think it should call upon the person notified to come
in and defend the suit, or should offer him
an opportunity of doing so. The party notifying cannot insist upon retaining control of the defense, and yet hold the party notified bound by the result of the suit. The decisions of different courts in this county are not uniform upon the requirements of such a notice, but the weight of authority in this commonwealth requires that the notice must be such as to give the person notified information that he is called upon to come in and defend the suit, or be held responsible for the result. Richmond v. Ames, 164 Mass. 474, 41 N. E. 671; Id., 167 Mass. 265, 45 N. E. 919; Westfield v. Mayo, 122 Mass. 100, 109; Boyle v. Edwards, 114 Mass. 373; Gray v. Light Co., Id. 155; Elliott v. Hayden, 104 Mass. 180; Chamberlain v. Preble, 11 Allen, 370; Inhabitants of Milford V. Holbrook, 9 Allen, 17; Freem. Judgm. (3d Ed.) $ 181; 7 Rob. Prac. 150, 152; 2 Black, Judgm. § 567 et seq. Boston v. Worthington, 10 Gray, 496, is the case in our Reports most favorable to the plaintiff; but we think that decision goes to the very verge of the law on the subject, and in the opinion it is said: “The defendants, by the notice given to them of Southwick's action, had an opportunity to defend it; and the case shows that they were present at the trial, and testified therein.” In the present case we think that the notice, on its face, shows that it was not the intention that the present defendants should have an opportunity of controlling the defense. We are also of the opinion that the original action was such that by any form of notice the present defendants could not necessarily, as matter of law, be held bound by the judgment in the original action. The damages in that action were addressed with reference to the degree of culpability of the defendant therein, or of some person for whose negligence the defendant was made liable by St. 1887, c. 270. The defendants in the present suit, if they are liable at all to the plaintiff, are liable at common law for the breach of their contract or of their duty. They are not liable to the next of kin of John M. Tierney. The defendant in the original action was defending against its own negligence, or the negligence of persons for whose negligence it was responsible. In Westfield v. Mayo, 122 Mass. 100, 109, the principle is stated as follows: “It is simply this: If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit, and may call upon him to defend it. If he
fails to defend, then, if liable over, he is liable, not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defense.” It is also said in the opinion in that case: “In the present case the plaintiff was not compelled to incur the counsel fees by reason of any misfeasance or of any contract of its own, but was made immediately liable by reason of the wrongdoing of the defendant. There seems, therefore, to be no ground, in principle, by which it should be precluded from recovering, as a part of its damages, the expenses reasonably and properly incurred in consequence of the wrongdoing of the defendant. Within this rule, a master, who is immediately responsible for the wrongful acts of a servant, though there is no misfeasance on his part, might recover against such servant not only the amount of the judgment recovered against him, but his reasonable expenses, including counsel fees, if notified to defend the suit. It may be said in that case, as in this, that there may be a technical misfeasance, or, rather, nonfeasance, in not guarding more carefully the conduct of the servant, or in watching for obstructions in the street; but no negligence is necessary to be proved in either case as matter of fact. The party is directly liable because of the wrongdoing of another, whatever diligence he may have himself exercised. It does not, however, apply to cases where one is defending his own wrong or his own contract, although another may be responsible to him.” See Gray v. Light Co., 114 Mass. 149; Lowell v. Railroad Co., 23 Pick. 24. The charge of the presiding justice put the liability of these defendants, if they were liable, upon the facts, if they were
proved, that the defendants undertook with
the plaintiff to see to it that the electrical apparatus was kept in proper condition; that it was out of repair, of which the defendants had notice; that the defendants promised to repair it, and meanwhile to keep things safe, and to see to it that the large current of electricity from the works of the city was not turned on, all of which the defendants failed to do; and that, induced by these promises, the plaintiffs permitted their employés to continue at work; also, upon the fact, if it was proved, that the defendants undertook to repair the apparatus, and that the repairs were negligently and improperly made, so that the lamp which exploded was in a dangerous condition. The liability of these defendants cannot be put upon the ground that they were liable to the next of kin of Tierney, and that they had been released from this liability by the judgment against the plaintiff and the satisfaction thereof, because these defendants were not liable at all to the next of kin of Tierney. If these defendants promised the plaintiff to keep the electrical apparatus in repair, and failed to do so, they may be liable to the plaintiff for the breach of this promise. If