(123 N.E.) testimony on many of the vital questions in | randum, dictated by the sellers, mistakenly statthe case. The evidence fully justified the ed the price as 44 cents a pound, of which the verdict of the jury and the judgment of the buyer attempted to take advantage by persisttrial court. ently declaring the memorandum expressed the correct terms, his conduct constituted a repudiation of the contract and a breach. We find no reversible error in the record. The judgment of the criminal court will therefore be affirmed. Judgment affirmed. 1. CARRIERS 83-DELIVERY OF GOODS-ABSENCE OF BILL OF LADING. In the absence of explanatory evidence and finding respecting the bill of lading issued by the carrier of goods sold by plaintiffs to defendant, and its effect on delivery to defendant at destination, it must be assumed that mere failure of plaintiff sellers to forward it to defendant had no effect on his right to demand delivery of the goods in New York. 2. CARRIERS 83-CARRIAGE OF GOODS-DELIVERY WITHOUT PRODUCTION OF BILL OF LADING. The general rule is that a nonnegotiable contract of shipment by a common carrier is discharged by delivery to the consignee without surrender or production of the bill of lading; the fact that one is consignee being evidence of ownership. 3. SALES 201(4)-DELIVERY TO CARRIER. Ordinarily, in case of a sale of goods to be shipped by the seller from one place to another, delivery to the carrier is delivery to the buyer, unless there is a special agreement to the contrary. 4. SALES 199-DELIVERY TO CARRIER. Delivery of the goods to a common carrier, together with the taking of a nonnegotiable bill of lading in the name of the buyer, was strong proof of intention by the sellers to transfer title to the buyer. 5. TRIAL 404(1) — ACTION BY SELLERS GENERAL FINDING-EFFECT. The general finding of the trial judge in favor of the sellers of goods suing for the price imported a finding in their favor on the point of delivery to the buyer. 6. SALES 201(4)-DELIVERY TO CARRIER— PASSING OF TITLE. Where the sellers delivered goods to a railroad for carriage to the buyer, taking a nonnegotiable bill of lading in name of buyer, contract was executed and title passed, despite attempt of sellers by notice to carrier to prevent delivery to buyer at destination, and despite letters whereby sellers endeavored to get buyers to pay before due date. 7. SALES 183-REPUDIATION BY BUYER INSISTENCE ON ERRONEOUS MEMORANDUM. Where goods were sold by oral negotiation at 54 cents a pound, but an unsigned memo 8. SALES 384(2)-REPUDIATION BY BUYER -MEASURE OF DAMAGES. Where the buyer of goods without right repudiated the contract, the measure of the sellers' damages was the difference between the contract price and the fair market price at the time and place. 9. SALES 383-REPUDIATION BY BUYERDAMAGES EVIDENCE. In action for damages for breach of contract to buy car of willowed picker at 5 cents a pound, testimony of sellers that at time buyer repudiated by his insistence on an erroneous statement of price in the sales slip, the goods were worth 6 to 61⁄2 cents a pound, held sufficient to warrant finding for the sellers. Appeal from Municipal Court of Boston, Appellate Division; James P. Parmenter, Judge. Actions by Harry Edelstone and others against Harry Schimmel. In the first case there was finding for plaintiffs, and the case was reported to the appellate division of the Municipal Court of the city of Boston, which vacated the finding, and directed judgment for defendant, and plaintiff appeals. In the second case there was finding for plaintiffs, and the case was reported to the appellate division, which dismissed the report, and defendant appeals. In the first case, finding for plaintiffs ordered to stand, and judgment ordered accordingly; in the second case, order dismissing report affirmed. The evidence on the issue of plaintiffs' damthat there was no general market price for ages in the second case was their testimony the willowed picker sold by them, but that in early January, 1917, the price of such goods had advanced, and they were worth 6 to 62 cents a pound. The controversy between the parties as to the mistake in plaintiffs' sales slip in its statement of the price Occurred early in January. Leon R. Eyges and Samuel B. Finkel, both of Boston, for appellant. Philip Rubenstein, of Boston, for appellees. RUGG, C. J. These are two actions of contract based upon sales of goods. For convenience we treat each case separately. First Case. This is an action to recover for goods sold and delivered. On December 29, 1916, the defendant at the plaintiffs' place of business in Boston made an agreement to buy of the plaintiffs For other cases şee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "ten (10) bales of oil mill motes at 44 c. per pound, f. o. b. Boston terms 1% 10 net 30 days, to be shipped by the N. Y., N. H. & H. R. R.-to be shipped at once to New York." There was no dispute between the parties as to the terms of this agreement. These goods were shipped to the defendant by the carrier named on December 30, 1916, and a nonnegotiable bill of lading was issued on that date, the defendant being named as consignee. This bill of lading was not forwarded to the defendant, but was retained by the plaintiffs, who sent no notice to the defendant respecting it. Owing to other differences between the parties, the plaintiffs on January 11, 1917; and again four days later wrote in substance to the defendant that they would not deliver to him the oil mill motes unless he accepted and paid demand or sight draft less one per cent. discount. The plaintiffs also notified the carrier at Boston on January 9 not to deliver the mill motes to the defendant. The defendant on January 11, 1917, brought suit in New York City for breach of contract and there attached goods of the plaintiffs alleged to be in the possession of the New York, New Haven & Hartford Railroad. [1, 2] The bill of lading is not printed in the record. The plaintiffs testified that the "defendant could get the goods on arrival without bill of lading." The defendant testified that without the "bill of lading, as matters stood, he could not get possession of the mill motes." The court refused to grant the defendant's sixth request for ruling, which amongst other matters contained a statement of fact to the effect that the defendant could not obtain the possession of the motes without the bill of lading. There was no other evidence and no express finding respecting the bill of lading and its effect on delivery to the defendant in New York. Under the circumstances it must be assumed that mere failure of the plaintiffs to forward it to the defendant had no effect on his right to demand delivery of the goods in New York. See in this connection In Matter Bills of Lading, 14 Interst. Com. Com'n R. 346, and New York Central & Hudson River Railroad Co. v. York & Whitney Co., 230 Mass. 206, 213, 217, 119 N. E. 855. It is the general rule that a nonnegotiable contract of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading. The fact that one is consignee is evidence of ownership. Brown v. Floerscheim Mercantile Co., 206 Mass. 373, 375, 92 N. E. 494;. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 151, 97 N. E. 984, Ann. Cas. 1913A, 1317. | teler v. Whittemore, 205 Mass. 8, 11, 91 N. E. ery. The letters of the [6] The attempt of the plaintiffs by notice to the carrier not to deliver to the defendant was not of decisive consequence. The goods theretofore had been delivered to the carrier; it held as bailee for the defendant to whom the title had passed. plaintiff's endeavoring to get the defendant to pay before the due date of the contract were ineffectual to restore to them a title which already had vested in the defendant. These subsequent acts of the plaintiffs had no effect upon substantial elements of the contract which were already executed. H. White Co. v. Remick, 198 Mass. 41, 48, 84 N. E. 113; Daley v. People's Building, Loan & Saving Ass'n, 178 Mass. 13, 18, 59 N. E. 452. The finding of fact of the trial judge in favor of the plaintiffs was warranted by the evidence. No error of law is disclosed on the record. The finding of the judge for the plaintiffs is to stand and judgment is to be entered accordingly. So ordered. Second Case. R. [7] This is an action to recover damages for breach of a contract by the defendant to buy of the plaintiffs a car of willowed picker at 54 cents per pound. The negotiations were oral. When the bargain was struck, an unsigned memorandum dictated by one of the plaintiffs was written, in which the price was stated as 44 cents per pound. The judge found on conflicting evidence that this was a mistake and that the price agreed upon was 54 cents per pound, that the defendant repudiated the sale, and that until such repudiation the plaintiffs were ready and willing to perform the contract, and that thereafter the plaintiffs resumed control of the property. The evidence disclosed by the record plainly warranted the finding that the terms of the agreement actually made were clear, that the defendant seized upon the clerical error in the sales slip or memorandum and persistently declared that that expressed the terms of the contract. His conduct in this connection [3-5] The contract between the parties was constituted a repudiation of the only contract plain. The ordinary rule is that, in case of made. Utter denial of an essential term of a sales of goods to be shipped by the vendor contract may be equivalent to a disavowal of from one place to another, delivery to the the contract. Moreover, the defendant recarrier is delivery to the buyer unless there fused seasonably to give shipping instrucis special agreement to the contrary. Fech- tions. Mullaly v. Austin, 97 Mass. 30; King (123 N.E.) v. Faist, 161 Mass. 449, 37 N. E. 456; Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 130, 119 N. E. 698. [8, 9] The correct rule of law was followed in assessing damages. It was the difference between the contract price and the fair market price at the time and place fixed by the contract for performance. Barrie v. Quinby, 206 Mass. 259, 268, 92 N. E. 451. The evidence, while slight upon this point, cannot be pronounced insufficient to warrant the finding. Houghton v. Furbush, 185 Mass. 251, 70 N. E. 49; Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 8, 85 N. E. 877. PER CURIAM. This case comes before us by appeal from a decree of the superior court affirming a decision of the Industrial Accident Board, which in turn adopted and confirmed the finding of the single member. The record presents no question of law whatever. Whether the employé was entitled to a finding in his favor was wholly a matter of fact. On a matter of fact the conclusion of the Industrial Accident Board is final and cannot be reversed unless quite unsupported by evidence. There is no ground for disturbing their finding in the case at bar, which is covered in every particular by the Case of Pass, 232 Mass. 515, 122 N. E. 642, and decisions there collected. Decree affirmed. (233 Mass. 127) PODREN V. MacQUARRIE. (Supreme Judicial Court of Massachusetts. Suffolk. May 26, 1919.) 1. FRAUDS, STATUTE OF 63(2)-TITLE OF SUBLESSEE-EVICTION. Under Statute of Frauds (Rev. Laws, c. 127) § 3, where premises were leased by defendant, and the lessee, not individually, but as a trustee, executed a written lease to plaintiff, but there was no written assignment of the lease from the lessee to the trust, having no title under his lease from the trust, plaintiff cannot recover against defendant for an eviction. The lessee from a trust of premises leased by the owner to a trustee as an individual cannot recover from the owner on any ground of estoppel, on account of the statute of frauds, there having been no written assignment of the lease from the individual to the trust, or to himself as trustee, despite assurances by the owner's agent to plaintiff lessee that the lease to him from the trust was all right, which were followed by the lessee's payment of rent and making of repairs. 4. LANDLORD AND TENANT 108(1), 275 — FAILURE TO PAY RENT-RIGHT TO ENTER. dividual, the trustee as such thereafter leasing to plaintiff, was broken by the failure of the trustee as an individual to pay rent according to its terms, and the owner had the right to Lease of a building to a trustee as an in enter for the breach of covenant under her right reserved in the lease. 5. LANDLORD AND TENANT 180(1) — TENANT AT WILL-RIGHT TO RECOVER FOR EVICTION. A tenant at will cannot recover damages as for an unlawful eviction. Report from Superior Court, Suffolk County; Charles F. Jenney, Judge. Action of contract for damages for evic tion by David Podren against Eliza B. MacQuarrie, wherein demurrer as to the second count of the declaration was overruled, and defendant appealed. Verdict for plaintiff was rendered, and the case reported to the Supreme Judicial Court. Judgment ordered for defendant. The report of the case follows: This is an action of contract in which the plaintiff seeks to recover damages for eviction For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from a store formerly occupied by him, and comprising a part of the building numbered 75 and 77 Broad street, Boston, Mass., said store being situated on the corner of Batterymarch and Broad streets. The plaintiff's writ and declaration contained two counts, to each of which the defendant duly demurred. The superior court sustained the defendant's demurrer as to the first count and overruled the defendant's demurrer as to the second count. The defendant duly appealed from the decree of the superior court overruling her demurrer as to said second count. The pleadings may be referred to. During the entire time involved in this case, the defendant was the owner of said building. On February 21, 1913, she made a written lease under seal of the entire building to Fred L. Hewitt for a term of five years, beginning March 1, 1913. This lease was made subject to a lease of the three upper stories to the Stork Company, dated October 1, 1912, for five years from that date, which lease was assigned to said Hewitt. The lease contained the following clauses: "And the lessee further covenants and promises with and to the said lessor, that the lessee will not assign this lease, nor make nor allow to be made any unlawful, improper or offensive use of said premises, nor any use which will invalidate the lessor's insurance, nor any alterations or additions which shall make the premises less valuable for general occupancy during the term aforesaid, without the consent of the lessor thereto first being obtained in writing (the lessor agrees that the lessee may sublet all or portions of the demised premises for all or a part of said term), and that it shall be lawful for the lessor, at seasonable times to enter into and upon the leased premises to examine the condition thereof and to make repairs, if the lessor shall so elect." "No assent, express or implied by the lessor, to any breach by the lessee of any of the covenants herein contained shall operate as a waiver of any succeeding breach of covenant." "If the whole or any part of the premises shall be destroyed or damaged by fire, water or otherwise, or by the use or abuse of the city water or by the leakage or bursting of water or steam pipes in any part of the building, or from the electric wires, pipes, mains or machinery, or in any other way or manner, no part of said loss or damage is to be charged to or be borne by the lessor, in any case whatever, and that in no case whatever shall the lessor be liable to the lessee for any injury or damage to any person on the leased premises or in or about the said building occasioned by any cause whatsoever, except such injury or damage to person or property as may be directly caused by the negligence of the lessor or his agents or servants." "And provided also that these presents are upon condition that if the lessee does or shall neglect or fail to perform or observe any or either of the covenants contained in this instrument, which on the lessee's part are to be performed or observed * or if a receiver of the whole or any part of the property of the lessee shall be appointed, then, and in either of the said cases the lessor lawfully may, immediately or at any time thereafter and whilst such neglect or default, if any, continues, and with out further notice or demand, enter into and upon the said premises or any part thereof in the name of the whole, and repossess the same as of the lessor's former estate and expel the lessee and those claiming under the lessee and remove their effects forcibly (if necessary) without being taken or deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant and that upon entry as aforesaid the said term shall cease and be ended." "The lease contained no express covenant of quiet enjoyment." On May 25, 1914, said Hewitt, as trustee of the Briggs trust, under a declaration of trust dated April 10, 1913, recorded with Suffolk Deeds, Book 3721, page 161, and hereinafter referred to as Hewitt, trustee, executed a lease under seal to the plaintiff, Podren, of the store referred to in the first paragraph of this report for a period of three years and eight months, commencing June 1, 1914, at a rental of $50 per month, payable in advance; said Hewitt executed said lease "as trustee, but not individually." A copy of said lease is annexed to the declaration. The defendant duly excepted to the admission of this lease in evidence. On July 21, 1915, Hewitt as trustee wrote to the plaintiff the following letter: "Mr. Abram Hoffecker, 15 Beacon street, Boston, will hereafter have charge of the property, 75-77 Broad street, Boston, and you are here by authorized to pay your future rents to him or to his order. [Signed] Fred L. Hewitt, Trustee of the Briggs Trust." The following letters were in evidence: One 'dated March 10, 1915, signed by the Briggs trust and addressed to Hoffecker in which the writer states as follows: "We are inclosing you herewith demand note for $476.43 to take up note which comes due to-day at the Puritan Trust Co. "It is impossible for us to pay anything on this note at this time as we have ascertained at the city hall that the Broad street taxes will not be advertised for a tax sale until the 31st of this month, and are therefore making arrangements to take care of the taxes by that time. [Signed] Briggs Trust, by J. W. Robbins." Another dated July 21, 1915, addressed to Abram Hoffecker as follows: "I inclose you herewith letters to the three tenants at the property 75-77 Broad street, Boston in order that you may be able to collect the rents there. [Signed] Fred L. Hewitt, Trustee of the Briggs Trust." Another dated August 3, 1915, addressed to Abram Hoffecker as follows: "Inclosed please find note for $100 and check for $25.65 in payment of note for $125.63 due August 10th plus two cents for stamps. Please return the old note to us at your earliest convenience, and oblige. [Signed] Briggs Trust, by M. S. "P. S.-This is the best that I can do at the present time, but feel satisfied that another renewal will not be necessary." Another dated August 16, 1915, addressed to Abram Hoffecker as follows: "As you have taken possession of the property at 75-77 Broad street, Boston and accepted a surrender of the lease, we are advising you (123 N.E.) of the contents of a letter which we received from the elevator inspector, etc. We would suggest your looking into the same at your earliest convenience. [Signed] Briggs Trust, by J. W. Robbins." Another dated August 24, 1915, addressed to Abram Hoffecker as follows: "We are inclosing you herewith check for $10.20, being $10 interest on note due August 26 and 20 cents for stamps, also a renewal note for $1,000 due October 26, 1915 in payment of note due August 26th. [Signed] Briggs Trust, by M. S." that month I received a letter from Hewitt trustee telling me that some one else would have charge of the property and authorizing me to pay the rents to him. I cannot read English. Eight or ten days afterwards Mr. Hoffecker came to my store. My wife was present at the time. He said that Mr. Hewitt had nothing more to do with the property, that the property now belongs to his niece, and that he, Hoffecker, would collect the rents for her. He said that he, Hoffecker, and his niece had taken over the building and the leases, that she had given the property over to him and he would Another dated August 27, 1915, addressed to handle the building for her." Abram Hoffecker as follows: "I showed him my lease and asked whether it was all right. He said the lease was all right as long as I paid the rent, that I got the lease for two years and eight months, and it is O. K. He said the rent under that lease after "In accordance with our arrangement with you, we inclose you herewith lease of the Stork Company properly assigned. [Signed] Briggs Trust, by Fred L. Hewitt, M. S." Another dated October 16, 1915, addressed to that should be paid to him, that Mr. Hewitt had Abram Hoffecker as follows: "We are inclosing you herewith check for $50 on account. This is the best we can do at the present time. [Signed] Briggs Trust, by M. S." These letters were admitted subject to the exception of the defendant, which exception was taken to their admission when offered together, and was not to individual letters, except as to the letter of August 16, 1915, to the admission of which specific exception was taken. The plaintiff also introduced in evidence nine receipts, purporting to run from Abram Hoffecker, agent, to Fred L. Hewitt, for rent of the building 75 and 77 Broad street, said receipts being dated June 1, July 1, August 1, September 1, October 1, October 31, December 1, December 31, 1914, and February 1, 1915, for the rental of said building for the time between May 1, 1914, and January 31, 1915. Said receipts did not describe Hewitt as trustee. He further introduced in evidence, subject to the exception of the defendant, three promissory notes. These notes were all signed as follows: "Briggs Trust, by Fred L. Hewitt, Trustee" and were all payable to Abram Hoffecker individually. The first of these, dated June 26, 1915, was for $1,000, and when introduced in evidence bore the following canceled indorsements: "Waiving demand and notice. Abram Hoffecker. Eliza B. MacQuarrie." The second of these, dated July 10, 1915, was for $125 and bore the following canceled indorsement: "Waiving demand and notice. Abram Hoffecker." nothing more to do with the lease. I told him again, 'So long as my lease is all right I would pay you the rent,' and I paid him $50 for the month and he gave me a receipt and he went out. I looked for the receipt and could not find it. I lost my receipts for rent in moving. After that I paid the rent to Hoffecker for several months." "In the fall of 1915, Mr. Hoffecker was in my store and I asked him to put a new window front in my store on the Batterymarch street side. My wife was present at the time. I told him it would help my business. He said 'You have two years and a few months' more lease and you are getting the rent pretty cheap. When you think it will pay you, you go ahead and fix it yourself.' I said, 'Go ahead and fix the place myself! Iwould like to find out again about the lease.' He said, 'Mr. Podren, when I say once to you that the lease is good, it is good, you don't need to ask me again.' I said, "Then, I will go and fix up the window myself.' I then hired a carpenter and an electrician and had the alteration made at an expense of $75. After that I continued to pay rent to Hoffecker. A few weeks before January 12, 1916, Hoffecker, the defendant, a lawyer and a real estate man from the lunch room called at my store together. Hoffecker said that they had leased the whole building to the Waldorf Lunch and that he had nothing to do with this place, nothing to do with this office any more. He said that my lease was no good because I got it from Mr. Hewitt who had failed and his lease with the owner was broken. I reminded him that when he started collecting rent from me he had told me that the lease was all right as long as I paid the rent. He said: "That is business. I have a chance to let the building for fifteen years to the Waldorf Lunch for $5,000 a year.' I said: 'I am not here very long. I just started with a little money. You see that little store. It is all I have but my name, and in fact half of that merchandise is not paid for. It belongs to the wholesalers, and you will make me move and the wholesalers will find that I have moved and they will foreclose and what shall I do?' He said: 'I can't help you.' I said: 'Do you think it is right that you act in this way? You are using me just as "The lease of May 25, 1914, was duly execut- you like, just as if I was a rag.' She said: ed between Hewitt trustee and myself, and 'Mr. Hoffecker is my uncle and my agent. He thereafter I regularly paid to the lessor the is attending to all matters connected with the rental of $50 a month until July, 1915. In building and has handled the building for me The third of these, dated February 15, 1915, was for $476.43, and bore the same canceled indorsement as the second note. Mr. Arthur W. Blakemore, a lawyer, called by the plaintiff, produced the above-mentioned copies of letters, receipts and notes from the files of the Briggs trust of which he testified he was the duly appointed receiver in bankruptcy. No assignment in writing of the MacQuarrie-Hewitt lease by Fred L. Hewitt to Fred L. Hewitt, trustee of the Briggs trust, was found among the papers of the Briggs trust. The plaintiff testified as follows subject to the defendant's exceptions as to the conversations between the plaintiff and Hoffecker in the defendant's absence: 123 N.E.-22 |