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refused to order the interrogatories to beginning the work upon the building, Varnum further answered, this order would have ap- signed and recorded in the registry of deeds peared on the record. The judge was not this notice: bound to believe the evidence offered by the plaintiff.

Exceptions overruled.
Appeal dismissed.

(233 Mass. 264)

VARNUM v. KOGIOS et al.

(Supreme Judicial Court of Massachusetts.
Middlesex. June 25, 1919.)
73(3)—“Written CON-

MECHANICS' LIENS
TRACT."

Written agreement or memorandum between plaintiff's intestate, the contractor to erect a building for defendant, and the owner, held not such a "written contract" as required by the mechanics' lien statute.

[Ed. Note.-For other definitions, see Words and Phrases, Written Contract.]

"Notice is hereby given that by virtue of a written contract, dated October 27, 1917, between Alex Kogios, owner, and Percy E. Varnum, contractor, said contractor is to furnish labor and material for the erection, alteration, repair, or removal of a building on a lot of land described as follows: Situated in Lowell, Middlesex county, Massachusetts, on Little street, and more particularly described and set forth in a deed to said owner given by Robert G. Bartlett, dated September 18, 1916, and recorded in the registry of deeds for the Northern district of said county in Book 561, page 311, to which deed reference is hereby made for a more particular description of the premises hereby referred to. Said contract is to be completed on or before May 1, 1918."

The master found that no specific date was agreed upon for the completion of the work, and also, that from October 27, 1917, to May 1, 1918, was a reasonable time for the performance of the work mentioned in the contract. At or about the time the agreement was signed, the parties orally agreed that Varnum, should supply certain lime, cement, sand, iron and steel, and all labor and material necessary to complete the carpenter Ko-work, and Kogios was to furnish all additional material and labor.

Case Reserved and Report from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Bill to enforce mechanic's lien by Nellie Jennison Varnum, administratrix of the estate of Percy E. Varnum, against Alex gios and others. On reservation and report, on the pleadings, the master's report, and all questions of law therein, to the Supreme Judicial Court. Bill dismissed.

John J. & Fred. S. Harvey and Frederic S. Harvey, all of Lowell, for petitioner.

Varnum began work November 5, 1917, and continued until December 8, 1917, having to that time furnished labor and materials to the value of $2,750. On December 27, 1917, the defendant Sullivan loaned Kogios $2,200, which was paid to Varnum, being the sum

Qua, Howard & Rogers and Albert S. How- due him December 1, 1917. At this time Koard, all of Lowell, for defendants.

CARROLL, J. This is a bill in equity under St. 1915, c. 292, as amended by St. 1916, c. 306, to enforce a mechanic's lien on the property of the defendant Kogios. The case was referred to a master.

The plaintiff's intestate, Percy E. Varnum, on October 17, 1917, made a written contract with Kogios, a copy of which appears in a footnote. On November 1, 1917, before be

1 "Lowell, Mass. Oct. 27, 1917.

gios executed to Sullivan a mortgage on the premises for $6,000, to secure a loan of $2,200 and further sums to be thereafter advanced by Sullivan to Kogios. On the same date, a written agreement was made by which Varnum was to complete the work "as carpenter upon said building." He was to begin at once and "continue until finished with reasonable allowance for weather." Varnum completed the work April 22, 1918.

St. 1915, c. 292, as amended by St. 1916, c. 306, provides that when a contractor has furnished labor or material in the erection, alteration, repair, or removal of a building, in Mass.,order to establish a lien for labor and mate

"I herewith agree to furnish all necessary material for building on Little street, Lowell, for Mr. Alex. Kogios as follows:

"All carpenters to cost 72 cts. per hour. "All laborers to cost 55 cts. per hour. "All material furnished and all subcontracts carried by me will be charged to owner at the rate of 10% on lowest submitted price as approved by

owners and architect.

"Payments to be made upon certificate of archi

tect between the first and tenth day of each month for 80% of amount of work done.

"Balance to be thirty-one days after work is finished.

"Contractor-Percy E. Varnum. "Owner-Alex Kogios.

"Witness for both:

"Harry P. Graves, Architect."

rial supplied he must show that he made a written contract with the owner and that notice of the contract was filed or recorded in the registry of deeds. If there is an extension of the written contract, a notice thereof stating the date to which it is extended, is required to be filed in the registry of deeds prior to the date "stated in the notice of a contract for the completion thereof." The statute requires not only the existence of a contract, but that the contract be in writing. The agreement of October 27, 1917, is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(123 N.E.)

In suit by railroad for specific performance of covenant to heat freight offices leased to it by defendants' mortgagees, the lease being uncertain as to the length of time each day heat time plaintiff entered into possession the origwas to be furnished, evidence that from the inal lessors kept the premises heated continuously 24 hours each day until defendants entered to foreclose their mortgage held admissible to show the interpretation of the lease by the original parties.

not sufficient to fulfill the requirements of | 4. LANDLORD AND TENANT 41–LEASE-INthe mechanic's lien law. It is in effect a TERPRETATION BY PARTIES. mere memorandum of a contract to be made in the future, where all the essential elements are not included and its terms are left uncertain. It does not show whether the work was to be done in the erection of a building, or in the repair or alteration of an existing structure. If, as matter of fact, it was understood a building was to be erected, it is not shown of what material it was to be constructed; if a building was to be repaired, it does not appear what repairs were to be made; and if any labor in addi

5. LANDLORD AND TENANT 41-AMBIGU

OUS COVENANT-CONSTRUCTION BY PARTIES.

tion to that of carpenters and laborers was In suit by a railroad for specific performto be supplied, it is not set out in the agree-ance of a heating covenant of a lease of freight ment. The agreement dated October 27, 1917, is not such a written contract as is required by the mechanic's lien statute. See Parker v. Anthony, 4 Gray, 289; Sanderson v. Taft, 6 Gray, 533; Wilder v. French, 9 Gray, 393. As the plaintiff cannot prevail for the reasons stated, it is unnecessary to consider the other objections to the maintenance of the bill which were argued by the defendant. St. 1915, c. 292, §§ 1, 2, 7, 8, 9; St. 1916, c. 306, § 2.

offices by defendants, mortgagees, evidence that
defendants, after foreclosing and taking posses-
sion, continued to furnish heat without objec-
tion until a certain date, and paid for coal
furnished by the railroad to heat the building,
held admissible to show the construction which
defendants, after taking possession, placed on
the heating covenant, which was ambiguous.
6. LANDLORD AND TENANT 41-ASSENT TO
AMBIGUOUS LEASE
CON-
STRUCTION BY ORIGINAL PARTIES.

MORTGAGEES

No notice was filed or recorded in the regWhere a lease was ambiguous in its heating istry of deeds under the contract of Novem-covenant, but the lessor's mortgagees assented ber 27, 1917, and it is not contended that the plaintiff can recover under that agreement. Bill dismissed

(233 Mass. 258)

NEW YORK CENT. R. CO. et al. v. STONE-
MAN et al.

(Supreme Judicial Court of Massachusetts. Suffolk. June 24, 1919.)

1. EVIDENCE 461(1)—PAROL EVIDENCE AFFECTING WRITING-AMBIGUITY OF Lease. In suit for specific performance of a covenant to heat to a proper warmth for office purposes the freight offices leased by defendants, the covenant being ambiguous, evidence was admissible to show the conditions and circumstances under which it was made in order to ascertain whether it was intended to obligate for heating during the night as well as the day.

CON

2. CONTRACTS 155 AMBIGUITY STRUCTION AGAINST PERSON RESPONSIBLE.

If the true import and meaning of a written instrument are doubtful, and the intention of the parties cannot be determined from its language, it will be construed most strongly against the person using the uncertain language.

3. LANDLORD AND TENANT 42-OBLIGATION TO HEAT EVIDENCE.

In suit by a railroad for specific performance of a covenant to heat freight offices leased to it by defendants, evidence held not to justify a ruling that the railroad was not entitled to have the premises heated 24 hours in the day, including Sundays and holidays.

in writing to it and agreed to be bound by its terms, they cannot avoid its provisions and interpret the heating covenant differently from the interpretation placed upon it by the original parties, as shown by extrinsic evidence.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Suit by the New York Central Railroad Company and others against David Stoneman and others, resulting in ruling that the bill could not be maintained. On report to the Ruling reversed, Supreme Judicial Court. and case ordered to stand for further hearing.

George H. Fernald, Jr., of Boston, for plaintiffs.

Stoneman, Gould & Stoneman, of Boston, for defendants.

CROSBY, J. The plaintiffs leased from the owners the second and third floors and part of the first floor and basement of a building, to be occupied as a freight office for their freight terminal in Boston. The lease was in writing and the defendants as mortgagees of the property, assented to it and agreed to be bound by its terms if they foreclosed the mortgage before the expiration of the lease. The bill seeks to enforce specific performance of the lease which provides "that the demised premises shall be heated by the lessors to a proper warmth for office purposes." The judge of the superior court before whom the case was tried ruled that upon the facts recited in the report the bill

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MASS.DEC.120-124 N.E.-45

could not be maintained, and reported the is ambiguous and of doubtful meaning, and case to this court. evidence was properly admitted to show the

It is recited in the report that "it is neces-conditions and circumstances under which it sary for the proper operation of the railroad was made in order to ascertain the true for it to operate freight trains on Sundays | meaning of its language as it was used by and at night"; and that "it appeared in evi- the parties. If the true import and meaning dence that other transportation companies in of a written instrument is doubtful and the Boston, namely, the Boston & Maine Rail- intention of the parties cannot be determined road, the New York, New Haven & Hartford from its language, it will be construed most Railroad and the American Railway Express strongly against the person using the uncerCompany keep their freight offices open tain language. Foternick v. Watson, 184 twenty-four hours in the day, Sundays and Mass. 187, 68 N. E. 215; Bascom v. Smith, holidays included, and properly heated, al- 164 Mass. 61, 41 N. E. 130; Barney v. Newthough the force of clerks on duty at night comb, 9 Cush. 46. The evidence of the cusand on Sundays and holidays is smaller than tom in Boston of heating office buildings from on week days and varies according to the eight o'clock in the mornings until six o'clock amount of business, and that it is necessary in the evening, and manufacturing establishfor the handling of freight to keep a force of ments from seven o'clock in the morning to clerks at the freight offices continuously"; six o'clock in the evening, is not decisive as and further, that the plaintiffs entered into to the rights of the parties. The report possession of the premises in August, 1917, shows that the lessors knew before the lease and have continued in possession ever since, was executed that the premises would be except that since December 28, 1917, the rail- used by the plaintiffs as a railroad office at road has been operated by the federal Direc-its freight terminal; it also appeared that tor General of Railroads.

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The lessors kept the premises heated to a proper warmth for office purposes continuously twenty-four hours in the day including Sundays and holidays until February 16, 1918, when the defendants made an entry on the premises for the purpose of foreclosing their mortgage, but left the building in charge of the lessors who continued to furnish heat as previously. The defendants' agent in charge of the building in March, 1918, learned that heat was furnished night and day and continued to so furnish it until November, 1918, when the defendants notified the plaintiffs that they would not thereafter furnish heat at night or on Sundays or holidays. During the previous winter the lessors had difficulty in obtaining coal for heating the building and the plaintiffs furnished them with about twenty-five tons for that purpose. The lessors promised to pay for the coal but failed to do so; and afterwards the plaintiffs, with the consent of the defendants' agent, deducted from the rent due the defendants the cost of the coal.

it was necessary for the proper operation of the railroad for it to run freight trains on Sunday and at night when passenger traffic is light, and there was evidence that for the handling of freight it was also necessary to keep a force of clerks at the freight offices continuously. Upon this evidence it could not have been ruled that the plaintiffs were not entitled to have the premises heated twenty-four hours in the day, including Sundays and holidays. Reynolds v. Boston Rubber Co., 160 Mass. 240, 245, 35 N. E. 677; Strong v. Carver Cotton Gin Co., 197 Mass. 53, 83 N. E. 328, 14 L. R. A. (N. S.) 274, 14 Ann. Cas. 1182; W. T. Tilden Co. v. Denstein Hair Co., 216 Mass. 323, 103 N. E. 916.

[4, 5] As the language of the lease was uncertain and doubtful as to the length of time heat was to be furnished, the evidence that from the time the plaintiffs entered into possession in August, 1917, the lessors kept the premises heated continuously twenty-four hours each day until February 16, 1918 (when the defendants made an entry for the purpose of foreclosing their mortgage), was admissible to show the interpretation which the original parties placed upon the lease. The evidence that the defendants after taking possession continued to furnish heat continuously, without objection, until November, 1918, and paid the plaintiffs for coal furnished by them so to heat the building, was also admissible to show the construction which the defendants after taking possession placed upon the provision of the lease in question. Where the terms of a written in[1-3] The provision in the lease "that the strument are not clear and explicit, the interdemised premises shall be heated by the les- pretation which the parties have placed upon sors to a proper warmth for office purposes," it is of great importance in determining its relates only to the degree of heat to be fur- true meaning. Stone v. Clark, 1 Metc. 378, nished and not to the time during which heat 35 Am. Dec. 370; Lovejoy v. Lovett, 124 is to be furnished. Upon that question the Mass. 270; Jennings v. Whitehead & Atherlease is silent. In this respect the covenant ton Machine Co., 138 Mass. 594; Slack v.

The broker of the lessors, who negotiated the lease with the plaintiffs' representative, was told by the latter that the premises were to be used by the railroad as a freight office for its freight terminal in Boston, and would be occupied by a night force as well as a day force; and while the lessors were not told by their broker that the office would be open night and day, still they knew that the premises were to be used by the railroad as a freight office for its freight terminal.

(123 N.E.) Knox, 213 Ill. 190, 72 N. E. 746, 68 L. R. A. 606.

John J. Scott, of Boston, for plaintiff. Fletcher Ranney and Thomas Allen, Jr., both of Boston, for defendant.

CARROLL, J. [1] The plaintiff was injured by falling from one of the defendant's cars when the door was opened for her to alight. There was evidence that the plaintiff entered the car at Harvard Square Station; that "most of the seats were filled"; that in the presence of the guard and starter many people boarded the car and it became so crowded that the guard "had to press the doors in"; that at this hour in the morning, at Harvard Square, the cars were always filled, and "everybody was rushing wild, trying to get on"; that the plaintiff was injured at Bigelow avenue, in Watertown, which was about twelve minutes run from Harvard Square, and there was no interven

[6] Aside from the conduct of the defendants as mortgagees, they having expressly assented in writing to the lease and agreed to be bound by its terms cannot now avoid its provisions and place upon it an interpretation different from what the original parties intended. As the meaning of the covenant was doubtful and its true construction depended upon extrinsic evidence to explain it, and thereby show the intention of the original parties, the defendants under their agreement were bound by the construction adopted by the parties. Bascom v. Smith, 164 Mass. 61, 78, 41 N. E. 130. While it appears that the heating plant was so arranged that heat could not be furnished to the plaintiff without heating the rest of the building, still there was nothing to show that provision could not be made to limit the heat furnished ing stop. The evidence of what happened to other tenants to such times as they were entitled to it.

As in the opinion of a majority of the court it properly could not have been ruled that the bill could not be maintained, the entry must be, ruling reversed, and case. to stand for further hearing. The nature of the relief to which the plaintiff is entitled, if it turns out that it is entitled to relief, is not now before the court.

So ordered.

(233 Mass. 347)

KNOWLES v. BOSTON ELEVATED
RY. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. June 30, 1919.)

1. TRIAL 105(1)-INCOMPETENT EVIDENCE -ABSENCE OF OBJECTION.

at Harvard Square was not objected to (see Seale v. Boston Elev. Ry., 214 Mass. 59, 60, 100 N. E. 1020); and even if it were incompetent, having been admitted without objection, it is entitled to its probative force (Hubbard v. Allyn, 200 Mass. 166. 171, 86 N. E. 356).

[2] The plaintiff testified:

"That as the car stopped or was about to stop at Bigelow avenue "the door went open, and I landed on the street, on my shoulder. * I had an umbrella and a handbag in my hand. Just before the door opened, it [the car] was crowded, and each one was pressing forward to get to the door. At the time the door opened, there was pressure upon me * I was in the same position when the door opened and when I was thrown as I was when the car started. * * I couldn't move from the time the car started at Harvard Square."

*

from the crowd. *

A witness for the plaintiff testified that Incompetent evidence admitted without ob- when the car stopped at Bigelow avenue the jection is entitled to its probative force.

2. CARRIERS 302(3)—CARRIAGE OF PASSEN

GERS-INJURIES-LIABILITY.

motorman opened the door and "the people all try more pressure."

Considering all the evidence, there is nothing to show that the plaintiff was injured by reason of the defendant's negligence. In Seale v. Boston Elevated Ry., supra, the plaintiff offered to show that "before she en

Where plaintiff entered defendant street railway's car when most of the seats were filled, and so many boarded the car it became so crowded the guard had to press the doors in, and at a stop when the door was opened near which plaintiff was standing she was precipitat-tered the crowded car at Scollay Square," ed out on the street by the pressure of the crowd, the railway was not liable for her injuries.

Report from Superior Court, Suffolk County; Richard H. Irwin, Judge.

Action for tort for personal injuries by Sarah M. Knowles against the Boston Elevated Railway Company, resulting in verdict for defendant. On report to the Supreme Judicial Court. Judgment ordered for defendant.

"and that as she was standing after the other passengers had entered the rear door of the next to the last car, the guard put his hand behind her back and pushed her into that rear door against the crowd." She testified that when the train reached Park Street Station, the car door was opened and she "went to step' and before she 'had a chance to step the crowd pushed' her and she fell out, her leg going down between the car and a portion of the station platform which curved away from the car about two feet." It was decided that the plaintiff was not

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prejudiced by the exclusion of her offers of proof and could not recover. This case cannot be distinguished from the case at bar, and is decisive of it.

The plaintiff's case really rests on the fact that the car was crowded. It was said in Burns v. Boston Elevated Ry., 183 Mass. 96, at page 97, 66 N. E. 418: "The fact that the car was crowded is immaterial." This has been said in substance in numerous cases and is implied in many other decisions. Jacobs v. West End St. Ry., 178 Mass. 116, 59 N. E. 639: McCumber v. Boston Elev. Ry., 207 Mass. 559, 93 N. E. 698, 32 L. R. A. (N. S.) 475.

In Willworth v. Boston Elev. Ry., 188 Mass. 220, 222, 74 N. E. 333, it was held that the defendant was not in fault in failing to take measures to prevent passengers from crowding, in passing from the car, if the passengers were not disorderly, and where there is no reason to expect that anything unusually dangerous would happen. Field v. Boston Elev. Ry., 188 Mass. 222, 74 N. E. 334; Marr v. Boston & Maine R. R., 208 Mass. 446, 94 N. E. 692; MacGilvray v. Boston Elev. Ry., 229 Mass. 65, 118 N. E. 166. These cases govern the case at bar.

Chase v. Boston Elev. Ry., 122 N. E. 174, is to be distinguished. In that case the person in charge of the elevator, without warning, opened the elevator door against which the plaintiff was leaning, which appeared to be a part of the wall of the elevator. The elevator was stopped about four inches above the level of the floor, and there was a settee in the way over which the plaintiff fell. In Kelley v. Boston Elevated Ry., 210 Mass. 454, 96 N. E. 1031, and Bryant v. Boston Elevated Ry., 212 Mass. 62, 98 N. E. 587, 40 L. R. A. (N. S.) 133, the plaintiff was injured in a crowded subway station where the conditions could have been foreseen and provided for. Kuhlen v. Boston & Northern St. Ry., 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 729. 118 Am. St. Rep. 516, rests on the fact of violent conduct at a subway waiting station. O'Day v. Boston Elev. Ry., 218 Mass. 515, 106 N. E. 144. depends on Stevens v. Boston Elev. Ry., 184 Mass. 476. 69 N. E..338, where there was a violation of a rule by a servant of the defendant, established by it for the protection of passengers. In Treat v. Boston & Lowell R. R., 131 Mass. 371, Glennen v. Boston Elev. Ry., 207 Mass. 497, 93 N. E. 700, 32 L. R. A. (N. S.) 470, Coy v. Boston Elev. Ry., 212 Mass. 307, 98 N. E. 1041, Morse v. Newton Street Ry., 213 Mass. 595, 100 N. E. 1007, and Nute v. Boston & Maine R. R., 214 Mass. 184, 100 N. E. 1099, there was evidence of disorderly and unruly conduct on the part of passengers, which should have been foreseen and guarded against by the defendant. No such facts appear in the case at bar, and these cases do not support

the plaintiff's contention. St. 1906, c. 463, pt. 3, § 96, was not applicable to the plaintiff's case and we need not consider it.

According to the report judgment is to be entered for the defendant. So ordered.

(233 Mass. 186)

MURRAY v. JUSTICES OF MUNICIPAL
COURT OF CITY OF BOSTON.

(Supreme Judicial Court of Massachusetts.
Suffolk. June 23, 1919.)

1. OFFICERS 69-CIVIL SERVICE "REMOVAL WITHOUT PROPER CAUSE.'

"Removal without proper cause," as used in St. 1918, c. 247, § 3, relative to the removal, suspension, and rejection of persons in the classified civil service, includes a removal for reasons which are insufficient, frivolous, or irrelevant, and a removal grounded upon evidence which to fair-minded persons appears inadequate to justify the conclusion reached but falling short of an exercise of bad faith.

2. OFFICERS 72(2)-CIVIL SERVICE-REMOVAL-REVIEW.

On petition, pursuant to St. 1918, c. 247, § 3, to review removal of petitioner from employment under the civil service, the municipal court, hearing the petition, does not try the case de novo, but merely reviews the action of the removing officer or board, to prevent a result appearing not to be based on the exercise of an unbiased and reasonable judgment; that is, a removal without proper cause or in bad faith.

3. OFFICERS 72(2)- CIVIL SERVICE - REVIEW OF REMOVAL-BURDEN OF PROOF.

The burden of proof rested on petitioner to the municipal court, pursuant to St. 1918, c. 247, § 3, to review his removal from employment as assistant engineer at a state hospital, to establish the essential statutory facts of removal without proper cause or in bad faith.

Report from Supreme Judicial Court, Suffolk County.

Petition for writ of certiorari by Thomas P. Murray against the Justices of the Municipal Court of the City of Boston. Case reported. Petition dismissed.

Frederick W. Mansfield and Edmund R. Mansfield, both of Boston, for petitioner. Henry C. Attwill, Atty. Gen., and Max L. Levenson, Asst. Atty. Gen., for respondents.

RUGG, C. J. The petitioner was removed from his employment as assistant engineer at the Boston State Hospital after hearing had in conformity to the civil service law. Thereafter he filed a petition in the municipal court for the city of Boston under St. 1918, c. 247, § 3. It there is enacted that a person removed from such employment may file a petition praying that the action of the officer or board in making such removal may

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