the case turns upon whether the order assess- "The board of aldermen, with the approval of the mayor, shall have authority to order the laying out, altering, relocating, discontinuing and making specific repairs in all streets, ways and highways in the said city, and to assess all damages therefor." The words "with the approval of the mayor," were construed as meaning subject to the veto power of the mayor, when this court was considering a similar provision in the charter of the city of Waltham. Doty v. Lyman, 166 Mass. 318, 44 N. E. 337. It would seem to follow that as the power to lay out ways in Medford is in the board of aldermen subject to the veto power of the mayor, the body charged with the assessment of betterments under the provision of the Betterment Act above mentioned is likewise the board of aldermen, subject to the mayor's veto. gan v. Leonard, 204 Mass. 202, 90 N. E. 583. Putting to one side the statutes specially applicable to the city of Boston, the first Betterment Act applying to cities which accepted it was St. 1868, c. 75. At that time the power to lay out streets in most cities was in a city council of two branches, the "mayor and aldermen" and the "common council"; and to that city council was given the power to assess betterments. The mayor then was the presiding officer over the board of aldermen, with a casting vote but no veto. See Day v. Springfield, 102 Mass. 310. When the betterment laws were consolidated in 1871 (St. 1871, c. 382) and the mayor and aldermen were constituted the board to assess betterments, the mayor still had a vote in the board, but no veto power. It was in 1876 that a general law was passed conferring a veto power on the mayor and depriving him of the right to vote with the aldermen. St. 1876, c. 193, now R. L. c. 26, §§ 10, 11. And the anomaly of calling the aldermen "mayor and aldermen," when the mayor's right to vote as an alderman had been taken away from him, was ended by St. 1882, c. 164, providing that in all laws relating to cities the words "mayor and aldermen" should be construed to mean board of aldermen. But there was no indication that the veto power was to be taken from the mayor. In some of the later charters the extent See of the veto is defined and extensive. charter of Cambridge, St. 1891, c. 364, § 11. In the more recent ones providing for a single board, the "aldermen" are generally given power to lay out streets, assess damages, and ters relating to such layout subject to the except as otherwise provided, to act in matIt is contended by the respondents that the of veto seems to cover orders for betterment approval of the mayor. This express power words "with the approval of the mayor" were inserted in said section 21 in order to make 361 (Waltham); St. 1897, c. 172 (Woburn); assessments. See, for examples, St. 1893, c. the charter conform to R. L. c. 26, § 9, which St. 1898, c. 302, §§ 15, 17 (Gloucester); St. provides that every order of a city council 1899, c. 162 (Melrose); Id. c. 240, §§ 16, 17 which involves the expenditure of money, or where concurrence of the board of aldermen (Somerville); St. 1900, c. 323, §§ 15, 17 and common council may be necessary, shall (Gloucester); Id. c. 427 (Northampton); St. be presented to the mayor for approval. But boro); Id. c. 687 (Revere). And in the gener1914, c. 609 (Westfield); Id. c. 680 (Attlethe charter expressly provides for that in sec-al act for the revision of city charters, St. tion 52: "The general laws relating to the municipal indebtedness of cities, the general laws requiring the approval of the mayor to the doings of a city council or of either branch thereof, and relative to the exercise of the veto power by the mayor of a city, * * * shall have full force, application and effect in said city." This interpretation of the Medford charter, giving to the mayor the right to veto a betterment assessment, is confirmed by the history of the Betterment Act, and is in harmony with the trend of recent legislation increasing the powers of the mayor. See Galli 1915, c. 267, plans A and B, which provide for a city government by a mayor and single legislative body, make every order of the council subject to the veto of the mayor. Part 2, § 10; Part 3, § 8. In the light of this history, and of the veto power given to him specifically under section 21 of the Medford charter, and generally under R. L. c. 26, § 9, we do not think that the Legislature intended in the Betterment Act to exclude the mayor's veto. The result is that the writ of certiorari must issue; and it is So, ordered. (233 Mass. 95) (123 N.E.) 2. MASTER AND SERVANT 265 (5)-INJURY Report from Superior Court, Hampden County; Christopher T. Callahan, Judge. Action of tort by Christine McAller, administratrix, against Edgar L. Gillett and others, executors, for conscious suffering of plaintiff's intestate from personal injuries while in the employ of defendants' testator. Verdict was ordered for defendants, and the case was reported to the Supreme Judicial Court. Verdict ordered to stand. Raymond A. Bidwell, of Springfield, for plaintiff. Green & Bennett, of Holyoke, for defendants. which the intestate was set to work by Mr. Gillett, the defendants' testate. When a pile was driven as far as the hammer could drive it, a "follower" was used. This was a piece of timber about six feet long, on the bottom of which was a pintle or bolt, an inch in diameter and about five inches long. This bolt was dropped into a hole in the top of the pile, in order to keep the follower in its place while it was being used to drive with. When the pile was driven to the required depth a rope was attached to the follower, and it was pulled up. It was the duty of McAller to guide the follower so that the bolt would feed into the hole in the top of the pile, and also to steady it there until the hammer drove the pile down so that "the earth or whatever came around the follower would keep it steady itself." It does not appear who fastened on the rope, or what McAller's duties were while the follower was being hoisted. The intestate had been at work some hours when the accident happened. Presumably the pile driver was shifted after each pile was driven; and at the same time some one must have moved the plank on which he stood when at work. According to McAller's statement, as testified to by his attorney, a pile had been driven; then "they started to pull up the follower and it came up suddenly without any warning to him with a jerk, and that it jumped up on the upper end and struck a crosspiece that was across the front part of the pile driver frame. When it struck that, the foot of it bounded outward and struck the plank on which McAller was standing, knocking it out from under his feet and knocking him over in a somersault shape, so that he fell head first, and came in contact with the pile striking the right side of his head." Assuming that there was evidence for the jury that the plaintiff's intestate used due care, and did not assume the risk, this meager record discloses no negligence on the part of the defendants' testator. It does not appear that the follower ever before came up DE COURCY, J. The plaintiff's intestate, Archibald McAller, was injured while working on a pile driver. The only evidence intro- | "with a jerk," which might operate as a noduced at the trial was that of declarations tice to the employer. No explanation was made by McAller to his family and attorney, offered as to why it jumped out at this time. between the time of his injury in May, 1912, There was no evidence that the construction and his death the following September. The or arrangement of the derrick was such description of the apparatus and the story that the employer should apprehend such a of the accident are meager and incomplete, complicated occurrence, beginning with the In its most favorable aspect the testimony traveler striking "the crosspiece," tipping, tends to show the following facts: and knocking the plank from under the intestate. In short the plaintiff failed to produce evidence which would warrant a jury in finding that the accident was due to either of the causes of action alleged in her declaration. Ragolsky v. Nuremberg, 211 Mass. 575, 98 N. E. 594. [1] A pile driver had been set up over a pond of water ten or twelve feet deep, in order to drive piles for the foundation of a railroad bridge. There were two pieces of timber, one each side of, and at right angles with the face of, the pile driver; and on these, "across the face," was laid a plank on [2] In the absence of any proof that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes PAYMENT OF INSTALLMENT. In seller's action to recover initial payment on purchase of realty, evidence held to warrant finding that such payment, on installment, of $100, was payable when seller executed formal written contract which had been signed by buyers, and delivered it to a broker acting as the agent of buyers for that purpose. Report from Municipal Court of Boston, Appellate Division. movement of the follower was due to any de-1 3. VENDOR AND PURCHASER 80-TIME FOR fect or latent danger in the derrick or its appliances, the plaintiff invokes the doctrine of res ipsa loquitur. But we cannot say that the accident was one which in the ordinary experience of mankind would not have happened unless from negligence on the part of the employer, or that of others for whose negligence he was responsible. On the contrary, if we consider the inferences that properly might be drawn from the facts disclosed, the accident well may have been due to a careless starting of the engine, by chael F. McDonough and wife to recover the Action by James B. Dooley against Miapplying the power suddenly and with too initial payment under an alleged contract great force; or it is equally inferable that for the purchase of real estate. There was the rope was adjusted too far from the top finding for plaintiff, and the case was reportof the follower, which would give it a ten-ed to the appellate division of the municipal dency to tip outward when separated from the pile. These, and some other explanations that might be conjectured, would indicate that the accident was due to negligence on the part of a fellow-servant of McAller, for which the employer would not be liable. In any event it is plain that the doctrine of res ipsa is not applicable to the facts disclosed. Trim v. Fore River Ship Building Co., 211 Mass. 593, 98 N. E. 591; Cullalucca v. Plymouth Rubber Co., 217 Mass. 392, 104 N. E. 956. The verdict for the defendants was ordered rightly; and in accordance with the report the entry must be: Verdict to stand. (233 Mass. 77) DOOLEY v. MCDONOUGH et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1919.) 1. APPEAL AND ERROR 931(4)-REVIEWASSUMPTION AS TO FINDING. In vendor's action for installment of price, in view of general finding for seller, and his rulings in giving buyers' requests that, if their conduct in signing the agreement be construed as an offer to be conveyed to the seller, such offer was subject to withdrawal until accepted, etc., the Supreme Judicial Court must assume the court found the agreement was an offer proposed by the buyers, and that they selected the person who negotiated it as their agent to take offer to seller and receive his written acceptance. court of the city of Boston, which dismissed the report, and defendants appeal. Order dismissing report affirmed. Defendants' second and third requests for rulings given by the trial court were as fol lows: (2) If the conduct of the defendants in signing the alleged agreement be construed as an offer to be conveyed to the plaintiff, such offer was subject to withdrawal until accepted by the plaintiff. (3) If the conduct of the defendants is construed as an offer to be conveyed to the plaintiff through the agent of the plaintiff, in whose hands the property in question had been placed for sale, a withdrawal of the defendants' offer is effectual if communicated to such agent's office, before acceptance by the plaintiff, and received by one properly in charge of such office. The defendants had been shown the plaintiff's house twice by a real estate broker, the plaintiff's agent, one Fernandez. The next day, after he had last shown the house, said broker, with his wife, called at the defendants' house in the evening. The defendant Mrs. McDonough was at home when Mr. FerThe nandez called about 8:30 o'clock p. m. defendant Mr. McDonough was absent, but returned about 11 o'clock. The agreement was prepared in duplicate in the defendants' home, and presented to the defendants for their signatures, after Mr. McDonough returned. Both Mr. and Mrs. McDonough signed the agreement in duplicate, said agreement being under seal, and left both copies in the hands of the said Fernandez. At that time, it did not bear the signature of the plaintiff, and there was evidence that the broker, Fer44-ACCEPT- nandez, did not have authority to sell the house for the specified price, namely, $3,700, In seller's action to recover initial payment but did have authority to get a customer for on purchase of realty, evidence held to warrant a price of $4,000, and if he could get an offer conclusion apparently reached by trial court in writing for $3,700, that would be considerthat, when buyers attempted to revoke offer to buy, made by signing, at solicitation of a bro-ed by the plaintiff. There was evidence furker, a formal written agreement, such offer had ther tending to show that the agreements been accepted by the seller and a binding con- were signed and delivered to Fernandez for tract completed. the purpose of bringing the same to Dooley 2. VENDOR AND PURCHASER ANCE OF OFFER-EVIDENCE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) in accordance with Dooley's statement to Fernandez that if he could get an offer for $3,700, he, Dooley, would consider it. Fernandez drove to the defendants' house in his automobile and was accompanied by his wife on the evening in question, and she was present during the negotiations above described. The next morning, the defendant, Mr. McDonough, telephoned to the broker's office. Mr. Fernandez was not in. His wife answer ed the telephone and Mr. McDonough delivered the following message, in substance, that he did not wish to go any farther with the transaction. Mr. Fernandez did not receive this message until after he had procured the plaintiff's signature to the agreement, which he procured in Boston between 9 and 10 o'clock the next morning at the plaintiff's office, where he left with the plaintiff one of the signed agreements and took the other to deliver to the defendants and get the $100 deposit payment. Mr. Fernandez received from his wife the message of the defendants early in the afternoon, before delivering the agreement to McDonough. Witness Fernandez further testified as follows: "I saw Mr. and Mrs. McDonough sign these [agreements] and I witnessed them. I read it over. I had my copy and he had his. They were made in duplicate original. I went and had Mr. Dooley sign them in duplicate. The next day I was to go and get $100 as per agreement. The next morning Mr. McDonough called me up and he wanted to put the thing off for a time and I told him I expect ed him to live up to his agreement." for under the agreement. We also beg to now notify you that Mr. Dooley will hold you to the agreement and expect you on May 1st to carry. through the balance of the provisions of same. nandez himself, who has the duplicate original "This letter is brought to you by Mr. Feragreement signed by Mr. Dooley and who will again tender same to you, and he is authorized by Mr. Dooley to receive the deposit of $100.00. "[Signed] Swain, Carpenter & Nay." The defendants refused to pay the $100 or take the agreement tendered to them and this suit was brought to recover $100, the amount alleged to be due as the first payment under the alleged agreement. Swain, Carpenter & Nay, of Boston, for plaintiff. John D. Graham, of Boston, for defendants. DE COURCY, J. The defendants had been shown the plaintiff's house by one Fernandez, a real estate broker, who had been authorized by the plaintiff to sell it for $4,000. On a subsequent Monday evening the broker called on the defendants and they made an offer of $3,700 for the property, and signed in duplicate a formal written agreement to purchase at that price. The papers were delivered to Fernandez, and he was to receive the initial payment of $100 on Tuesday evening if he could get the plaintiff to sign them. Fernandez obtained the signature of the plaintiff to the agreements between 9 and 10 o'clock Tuesday forenoon, left one copy with him and took the other to deliver to the defendants. At some time that forenoon Mr. McDonough telephoned to the broker's office that he did not wish to go any further in the transaction; but Fernandez did not re When Mr. Fernandez left the defendants' house on the evening on which the latter signed the agreement, he was told to come in the evening of the next day for the depos-ceive the message until the afternoon, some it as Mr. McDonough would not be home until then, although his previous proposition was to return with the agreements in the event the plaintiff signed the same, on the next forenoon. After the plaintiff signed the agreement, and after Mr. Fernandez had received Mr. McDonough's message, that he did not wish to proceed with the transaction, Mr. Fernandez delivered in person to the defendants the following letter from the attorneys of the plaintiff, dated March 29, 1918: "Dear Sir and Madam: In behalf of Mr. James B. Dooley, with whom you have entered into an agreement to purchase his property No. 15 Shafter street, Dorchester, under agreement signed March 25th, we hereby make demand upon you for immediate payment of $100.00 as called for under said agreement, upon receipt of which Mr. Dooley stands ready to deliver the duplicate original of said agreement. "We are advised by Mr. Fernandez, the agent in the transaction, that when he sought to deliver this agreement to you, you put him off on one pretext and another and have delayed in making the deposit payment of $100.00 called hours after he had procured the plaintiff's signature. The defendants later refused to take the agreement tendered to them, and this action was brought to recover the first payment of $100. The judge of the municipal court found for the plaintiff, and his finding was sustained by the appellate division. [1-3] In view of the judge's general finding and his rulings on request numbered 2 and 3, we must assume that he found, in effect, that the agreement was an offer proposed by the defendants, and that they selected Fernandez as their agent to take the offer to the plaintiff and receive his written acceptance. The facts stated in the report warrant the conclusion which the judge apparently reached, that when the defendants attempted to revoke their offer, it had been accepted, and that a binding contract had been completed in the manner intended by the parties. Nickerson v. Bridges, 216 Mass. 416, 420, 103 N. E. 939; Brauer v. Shaw, 168 Mass. 198, 46 N. E. 617, 60 Am. St. Rep. 387; Boston & Maine R. R. v. Bartlett, 3 Cush. 224. See Codman v. Deland, 231 Mass. 344, 121 David H. Fulton, of Boston, for defendant. N. E. 14. There was also warrant for the William J. McDonald, of Haverhill, for finding that the installment of $100 was pay-plaintiff. ⚫able when the plaintiff executed the contract and delivered it to Fernandez, acting as the agent of the defendants for that purpose. It is not found that the payment was a condition precedent to the completion of the contract. Mass. Biographical Society v. Russell, 229 Mass. 524, 118 N. E. 662. No error appearing on the record the entry | fendant's premises. The jury found for the must be: Order dismissing report affirmed. (233 Mass. 126) SCHENA v. BACIGALALUPO. CARROLL, J. The plaintiff in this action seeks to recover damages for personal injuries to his intestate, Michael Schena, who, he contends, was injured by reason of a defect in a common passageway on the de plaintiff. There was evidence that the defendant was the owner of a building in which Michael Schena was a tenant; that the floor of the passageway between the tenant's room and the room of one Bocuco was defective; and that by reason of this defect the plaintiff's intestate was injured. There also was testimony showing that adjoining premises were (Supreme Judicial Court of Massachusetts. Es being repaired and some material for this sex. May 23, 1919.) work was taken from the defendant's building; but the record does not show how long the defect complained of existed, nor who caused it; and there is nothing in the evidence from which it could be inferred that the defendant was negligent, or responsible for the condition of the passageway. It does not appear from whom the plaintiff's intestate hired his tenement-he may have been the tenant of the defendant or of Bocuco; nor whether Bocuco hired the whole or only a part of the building; nor what the terms of the lease were, Bocuco may have been the Exceptions from Superior Court, Essex lessee under a written lease, and the pasCounty; Charles U. Bell, Judge. sageway may have been a part of the leased premises; at least there is nothing in the Action for personal injuries by Michael evidence to contradict this assumption. On Schena against Madelina Bacigalalupo, the evidence before us, there is nothing to wherein Domenica A. Schena, administrator show that the defendant owed the plaintiff was substituted as plaintiff. There was find- any duty. The defendant's motion for a diing for plaintiff, and defendant excepts. Ex-rected verdict should have been granted. ceptions sustained. Exceptions sustained. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |