not notice whether the cars rang their gongs or not, but that when he did notice the cars rang their gongs when men were near the track." And it is claimed that the jury might find that he had a right to rely upon this practice and to expect to be warned by the gong of an approaching car, if he was in dangerous proximity to the track. But this evidence falls far short of indicating any established custom, or of showing any excuse for a failure to use his own senses for his protection. There was similar evidence of a failure to ring the gong in Quinn v. Boston Elevated Railway, ubi supra. There was nothing to prevent the plaintiff, while doing his work, either from standing where a car could not have hit him or from taking such a position as to see readily when a car was approaching. Due care required that he should not leave all concern for his safety to the defendant. He was not at work on the defendant's premises under an implied assurance of safety, as in Maguire v. Fitchburg Railroad, 146 Mass. 379, 15 N. E. 904; nor was there any evidence of a duty or an established custom for the defendant or its superintendent to give notice of the approach of a car, as in Meadowcroft v. New York, New Haven & Hartford R. Co., 193 Mass. 249, 79 N. E. 266, and cases there cited; nor had he a right to expect a warning from his own foreman, as in Ahearn v. Boston Elevated Railway, 194 Mass. 350, 80 N. E. 217. Although there was evidence of negligence on the part of the defendant, yet by reason of the plaintiff's failure to exercise proper care, the defendant's request for a ruling that the plaintiff was not entitled to recover should have been granted. Exceptions sustained. itations began to run upon the following instrument: "Boston, July 14, 1898. "I have this day received from Elmer C. Davis two hundred dollars for use and investment in the Cottonwood Mine, situated in Chaffee Co., Colorado, Whitehorn District; and I agree that if said mine proves successful that I will pay him from the first profits or returns received by me the sum of four hundred dollars, and if no such profits or returns are received by me within six months from this date I agree to return to said Davis the said two hundred dollars with interest. "[Signed] Jay B. Crawford." It was agreed that $200 was paid to the defendant upon July 14, 1898; that the mine referred to in the agreement did not prove successful, and there was no profits or return received within six months from July 14, 1898, or at any other time, and that no demand was made upon the defendant for the return of the money until within a few days prior to the bringing of this action. It is plain that upon these facts the statute of limitations did not begin to run until January 14, 1899. The contract is not to pay upon demand, but a specific agreement to pay in two contingencies two different amounts: If the mine proves successful, $400 are to be paid out of the profits, and if no profits are made within six months from its date, then the $200 with interest is to be returned. Upon the facts agreed, nothing could have been due until the expiration of six months. Any action brought prior to that time would have been premature. Therefore, the statute of limitations did not begin to run until January 14, 1899, and the present action instituted on January 7, 1905, is not barred. Exceptions overruled. (197 Mass. 309) DAVIS v. CRAWFORD. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1908.) COMPUTATION OF LIMITATION OF ACTIONS By a writing dated July 14, 1898, defendant acknowledged receipt of $200 from plaintiff, and agreed to pay him $400 from the first profits of a certain mine, and, if no profits were received within six months, he agreed to return plaintiff the $200, with interest. No profits were ever received by defendant from the mine. Held, that limitations did not begin to run on the contract until January 14, 1899, since nothing was due until that time. Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge. Action by Elmer C. Davis against Jay B. Crawford. Judgment for plaintiff, and defendant excepts. Exceptions overruled. Samuel R. Cutler and Harry W. James, for plaintiff. Whipple, Sears & Ogden, for defendant. RUGG, J. The only question raised by these exceptions is when the statute of lim (197 Mass. 354) PALATINE INS. CO. OF LONDON, Limited. 1. INSURANCE-REMOVAL OF PROPERTY. A fire policy, with a rider attached permitting a removal of the property to another location and providing that it should cover the property "in both locations during the removal," does not cover the property temporarily stored in a building other than the building in which it was insured, with a view to the subsequent removal to the new location. [Ed. Note. For cases in point, see Cent. Dig. vol. 28. Insurance, § 793.] of London, Limited, against Annie Kehoe. There was judgment for defendant, and plaintiff brings exceptions. Exceptions sustained. Richard D. Ware, for plaintiff. Harrison Dunham, for defendant. KNOWLTON, C. J. The plaintiff contended that a part of the property included in the policy was not covered by it at the time of the fire, because it had been removed from the building in which it was insured to another building near by, which was burned in the same conflagration. Upon the policy a rider had been attached, as follows: "Permission is hereby given the assured to remove the within insured property to frame dwelling building situate east side South Main street, between Union and Maple streets in Randolph, Massachusetts. This policy to attach and cover the same in both locations during removal, in proportion as the value of each location shall bear to the value in both, and after removal shall attach and cover in new location only." There was evidence tending to show that an important part of the property had been removed and stored temporarily in another building, with a view to the subsequent removal of it to Randolph. As to this the judge instructed the jury as follows: "Now as to any articles which were moved from the Irving cottage, if any were, and temporarily placed in another building, that being a part of the transmission of the property from the Irving cottage to Randolph within any reasonable grounds, the policy of insurance might cover such property in its transmission from the one place to another. * It must ap pear that, if any portion of the property was placed temporarily in another building while it was in process of being moved, the placing of that property there was for a very short period of time only, that it was temporarily there, and that it was not to remain there and did not remain there under the protection of that building." This was erroneous. In Goodhue v. Hartford Fire Insurance Company, 184 Mass. 41, 67 N. E. 645, it was decided, under a contract in substantially the same terms as the one now before us, that goods which were burned in railroad cars while being removed were not covered by the policy. Other cases involving the same general principle are Bradbury v. Westchester Company, 80 Me. 396, 15 Atl. 34, 6 Am. St. Rep. 219; English v. Franklin Company, 55 Mich. 273, 21 N. W. 340, 54 Am. Rep. 377; Lycoming Insurance Company v. Updegraff, 40 Pa. 311; Hartford Insurance Company v. Farrish, 73 Ill. 166; Mawhinney v Southern Insurance Company, 98 Cal. 184, 32 Pac. 945, 20 L. R. A. 87. There was evidence tending to show a fraudulent representation by the defendant to the plaintiff that this property had not been removed from the place where it was when the policy was issued, and that most of the property was in that place at the time of the fire, a small portion only having been removed to Randolph. The instruction just quoted was important as bearing upon the materiality of the fraudulent representation, if there was a fraudulent representation. At the request of the defendant the judge also instructed the jury that "payment by the plaintiff to the defendant in this action is a waiver of all breaches of the insurance policy on the part of the defendant, and every defense which might have been made to the policy on which said payment was made except for such waiver." This leaves out of consideration the fact that, upon the evidence, the payment might have been procured by fraudulent representations of the defendant in regard to material matters. If it was so procured the plaintiff on discovery, might avoid the effect of it, and it would not constitute a waiver. In Berkshire Mutual Fire Insurance Company v. Sturgis, 13 G Gray, 177, relied on by the defendant, there is nothing that precludes one from avoiding a settlement procured by fraud. This instruction was erroneous. As bearing upon one branch of the case the assignment of the policy to the defendant by her husband, after the payment to her by the plaintiff, with the assent of the plaintiff's agents endorsed upon the policy, was rightly admitted. The other questions of evidence presented by the bill of exceptions are not likely to arise in the same form at another trial, and we do not think it necessary to consider them. Exceptions sustained. (197 Mass. 440) CASEY v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1908.) STREET RAILROADS-COLLISION WITH PEDESTRIAN-CONTRIBUTORY NEGLIGENCE. An 11-year old child cannot recover for injuries received in a collision with a street car, where she saw the car approaching in full view, and with full knowledge of the danger and without necessity attempted by hurrying to cross the track in front of it. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 217, 218; vol. 37, Negligence, §§ 121-129.] Report from Superior Court, Suffolk County; William B. Stevens, Judge. Action by Annie Casey, by her next friend, against the Boston Elevated Railway Company. On report from the superior court. Judg ment for defendant. Coakley, Coakley & Sherman and Michael A. Sullivan, for plaintiff. Chas. F. Choate, Jr., for defendant. SHELDON, J. There was evidence tending to show that the defendant's servants were guilty of negligence in the running of the car that struck the plaintiff, and the only ques tion which need be considered is whether the plaintiff could have been found to be in the exercise of that degree of care which is properly to be expected from a child of her years. In this respect the case resembles Stackpole v. Boston Elevated Railway, 193 Mass. 562, 79 N. E. 740. The plaintiff knew that the car was approaching her; she thought that she had time enough to cross in front of it if she hurried, and made up her mind to do so. So she went, apparently with haste, past two men, the witnesses Young and Brogie, who had stopped for this car to pass, stepped upon the rails, and was immediately struck by the car. She had been going over this place four times a day for about two years, and had become well acquainted with it. There was some evidence that the gong of the car was not sounded; but this did not affect her conduct, for she had seen the car; she was not misled by the other car passing in front of it; it was in plain sight to her, with nothing to prevent her seeing it as she came near to the track on which it was running; she could have stopped instantly if she had desired. The direct cause of the accident was that which she herself assigned in her testimony: "I tried to get across in front of it-that is the way I got hurt." As in Madden v. Boston Elevated Railway, 194 Mass. 493, 80 N. E. 447, she took her chance; and it does not help her that this was the very chance which her father and mother had often told her not to take; and the case against her is the stronger because, as she also testified, she was not frightened, knew just how the car was coming, and just what the danger was if she got struck. It is impossible to say that she was exercising any care. Holian v. Boston Elevated Railway, 194 Mass. 74, 80 N. E. 1, and cases there cited. In accordance with the terms of the report, judgment must be entered for the defendant. So ordered. (197 Mass. 364) JAEHNIG v. J. G. & B. S. FERGUSON & CO. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1908.) 1. MUNICIPAL CORPORATIONS-USE OF STREET -PERSONAL INJURIES-PROXIMATE CAUSEORDINANCE. There can be no recovery for injuries sustained by a child by being struck by a vehicle while playing ball in the street in violation of the city ordinance, where the violation of the ordinance was the direct and proximate cause contributing to the accident, as distinguished from a mere condition accompanying it. [Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1517.] 2. SAME. Where a child was injured by being struck by a vehicle after he had abandoned a game of ball in response to a call from his father, the mere fact that his previous play was in violation of the city ordinance, and that he might not have been in the street at the time, except for his game, does not make his unlawful play the proximate cause of the accident. 3. SAME QUESTION FOR JURY-SUFFICIENCY OF EVIDENCE. In an action for injuries to a child by colliding with a vehicle while playing ball in the street in violation of the city ordinance, ev dence considered, and held sufficient to take to the jury a question as to whether he had abardoned the game and had started home in response to the call of his father. 4. SAME-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY-SUFFICIENCY OF EVIDENCE. In an action for injuries to a child by colliding with a vehicle while playing ball in the street in violation of a city ordinance. evidence considered, and held sufficient to take to the jury the child's contributory negligence in not using due care to avoid the vehicle. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1518.] Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge. Action by Arthur Jaehnig, per prochein ami, against J. G. & B. S. Ferguson & Co. From a judgment for plaintiff, defendant brings exceptions. Affirmed. By agreement of the parties, judgment is entered for plaintiff. Carroll & Flye and Jas. W. Milne, for plaintiff. Dickson & Knowles, for defendant. KNOWLTON, C. J. The plaintiff, a boy about 10 years of age, was run over and injured on one of the public streets of Boston, by a delivery wagon in charge of one of the defendant's servants. There was evidence on which the jury might have found that the defendant's servant was driving rapidly and negligently, and that this negligence caused the accident. The plaintiff had been playing ball on the street, in violation of an ordinance of the city of Boston, and there was evidence tending to show that one of his movements in the game brought him in collision with the team, and was a contributing cause of the accident. On the other hand, he testified that he had been called by his father, and at the time of the accident had given up the game, and was on his way to his father's shop near by. If his violation of a city ordinance was a direct and proximate cause contributing to the accident, as distinguished from a mere condition accompanying it, he cannot recover. Newcomb v. Boston Protective Association, 146 Mass. 596, 16 N. E. 555, 4 Am. St. Rep. 354. But if he was injured after he had abandoned the game and had started to travel home, the mere fact that he had been playing previously in violation of the ordinance, and might not have been there at that time except for his previous game, does not make his unlawful play a direct and proximate cause of the accident. In the game he was bowling the ball and trying to catch it when it was returned. According to the testimony his father had called him twice, and soon after the second call the ball was bowled towards him and went by him in the street. He started, walking in the direction of his father's shop, which was also in the direction of the ball a few feet away, and was struck by the wagon before he had gone so far as the place where the ball was. The defendant argues that he was going to get the ball as a part of the game, and that the jury should not have been permitted to find to the contrary. But in one part of his testimony he said that he gave up the game, and started toward the corner of Ashley street where his father was standing and where his father's shop was. We are of the opinion that it was a question of fact for the jury whether he had given up the game before he started to take the three or four steps which brought him in collision with the defendant's wagon. If the jury found for the plaintiff on that point, we are of opinion that it was also a question for them whether his general conduct in reference to danger from teams in the street, was that of ordinarily careful boys of his age. The evidence falls short of showing a high degree of care, but it does not appear that there was much travel on the street, or that very great vigilance in reference to the possibility of being struck by a team being driven rapidly around the corner from a cross street, would be expected from ordinary boys. While the testimony tends to show that he was not in the exercise of due care, we cannot say that there was not sufficient evidence for the plaintiff to present a question of fact for the jury. Judgment for the plaintiff according to the agreement of the parties. (197 Mass. 574) WARDWELL, Mayor, v. BOARD OF RAILROAD COM'RS. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 29, 1908.) SUBWAYS NUMBER OF STREET RAILROADS STATIONS-DETERMINATION. St. 1906, p. 743, c. 520, § 3, authorizing the Boston Elevated Railway Company to construct subways in the city of Cambridge, provides that a plan of the proposed route, with the location of stations and approaches, is to be filed with the railroad commissioners, within a year after the acceptance of the act by the company and before the work is begun, for their approval or alteration, "whether the mayor has or has not approved it," which plan shall, after notice and hearing. be approved by the board, or altered as it deems necessary. Section 13 (page 748) provides for the location by the company of subway stations and approaches at convenient points, subject to the approval of the mayor. Section 14 gives the company a right of appeal to the railroad commissioners if the mayor refuses to approve the plan submitted to him. Held, that the number of stations to be established was a question to be determined by the railroad commissioners, and not by the mayor, whose only authority was to approve or disapprove the locations of the stations after determination by the board as to their number; and, in case of his refusal to approve, his decision was subject to review by the board. Petition by Walter C. Wardwell, mayor of Cambridge, for a writ of prohibition against the Board of Railroad Commissioners. Petition denied. Gilbert A. A. Pveye, for petitioner. Dana Malone, Atty. Gen., and Frederic B. Greenhalge, Asst. Atty. Gen., for respondents. LORING, J. St. 1906, p. 742, c. 520, was enacted on June 23, 1906. It was subsequently accepted by the city of Cambridge, and on June 29, 1906, it was accepted by the Boston Elevated Railway Company, which for convenience we shall speak of as the company. On June 28, 1907, the company, in compliance with the provisions of section 3, filed with the city engineer of Cambridge a plan "showing the proposed route or location" of the subway and the "general form and method of construction thereof with the location of proposed tracks and stations and approaches." The number of stations shown on this plan was two. The mayor of Cambridge was notified of the filing of the plan, and his approval of it requested as required by section 3. On July 23, 1907, the mayor sent to the company a communication disapproving the plan in several matters, and in particular because in his opinion there should be four if not five, in place of two, stations. Further, the mayor stated that by the terms of a "special section" (meaning section 13) the location of stations was to be determined by him, and that "without such approval of the mayor the suggested locations of stations upon the plan in question adds nothing to the plan, and to that extent brings nothing before the railroad commissioners for their approval." On July 29, 1907, the company filed this plan with the Board of Railroad Commissioners, and applied to the board in writing, to have it approved or altered in accordance with section 3. The company in this application stated that if the communication of the mayor dated July 23 was to be taken to be a determination by him of any question arising under St. 1906, p. 742, c. 520, which he was authorized to determine, the application then filed was to be taken to be an application for a revision thereof under section 14 of that act. The board set down this application for hearing on September 11th. At the hearing on September 11th, the mayor, by the city solicitor acting as his counsel, "objected to any further hearing upon the ground that no subway stations had been located, and that there was no appeal from the action of the mayor upon the location of subway stations with their exits and approaches, his authority upon that question being exclusive; that the board had no right, in the absence of the approval of the location of stations by the mayor, to consider the matter of stations in connection with the plan as filed, and that the other features of the plan were so connected with the location of stations that it was impracticable for the board to proceed with the hearing upon that plan at all until the stations had been located with the ap proval of the mayor of the city of Cambridge." Further, at the hearing the question was raised whether the mayor had or had not exercised fully the authority given him by section 13. The hearing was then adjourned until September 17th. On September 16th a formal application was made to the mayor by the company, asking him to approve the location of the two stations shown on the plan then on file in the office of the railroad commissioners, together with suitable exits and approaches. Accompanying this application the company sent to the mayor a letter in which it stated that this petition was sent to him in accordance with the understanding had at the hearing on September 11th, in order that action might be taken on it and the matter come before the board at the adjourned hearing to be held on the next day, September 17th. The company further stated that they had intended to delay the application to the mayor for the approval of the stations until detailed plans could be made, and that the present course of action was taken to expedite the hearing before the board. To this communication the mayor has made no answer. The hearing was adjourned to September 20th, and then to October 10th. On October 6th the petition and suit now before us were brought. The petition is a petition for a writ of prohibition asking that the railroad commissioners may be forbidden to proceed with the hearing. The suit is a suit in equity, brought under section 31 of the act (St. 1906, p. 760, c. 520), to have the commissioners enjoined from further proceeding with the hearing. Both are founded on the contention of the mayor stated above, namely that he has the sole and final authority to locate the stations, and that until the location of stations with their exits and approaches has been fixed by him, the time has not come for filing a plan and procuring the approval or alteration of it by the railroad commissioners. If the plaintiff's is the true construction of St. 1906, p. 742, c. 520, the building of this subway (which the mayor stated and truly stated in his letter of July 23d to be only "primarily" for the benefit of the citizens of Cambridge) is dependent upon the railway company's being willing to accept the mayor's determination (first) as to how many stations are to be built and (second) as to the exits and approaches to them. The second (the exits and approaches) is a matter of secondary importance in this conection. On the face of the matter it would be strange if the Legislature intended the building of this subway to be dependent upon the mayor of Cambridge coming to a just determination on the number of stations. But when it is considered that the number of stations goes to the root of the whole problem, the result is stranger still. The number of stations does go to the root of the problem because it depends upon the kind of service to be rendered. It depends upon whether there is to be local service only or through service only, or a combination of the two, and if a combination of the two, how that combination is to be worked out. These are matters which the Legislature had no reason to suppose would be best determined by a mayor of a city. But we find nothing in the act which bears out this contention. By section 3 a plan is to be filed with the railroad commissioners, within a year after the acceptance of the act by the company, and before the work of construction is begun, for their approval or alteration, "whether the mayor has or has not approved" it. This plan is to show "the proposed route or location * * * and * the general form and method of construction, * with the location of proposed tracks and stations and approaches," and the board, after notice and hearing, "shall approve such plan or alter the same in such manner as it may deem necessary." So far as the matter of stations enters into the general problem, it is to be submitted to the railroad commissioners at this time and is to be decided by them after hearing them. When that has been done, the time has come for the company to submit to the mayor under section 13 the exact location of the stations which are to be built under the plan which has then received the approval of the railroad commissioners, having regard to the question of these stations being at convenient points and to their having suitable exits and approaches to and from the streets. Further, to prevent the possibility of a deadlock in the matter, if the mayor determines not to approve under section 13 what the public convenience requires should be approved, an appeal is given by section 14 from that determination to the railroad commissioners. We are therefore of opinion that it is the duty of the railroad commissioners to proceed with the hearing on the petition of the company filed on July 29, 1907. In view of the conclusion to which we have come on the merits there is no occasion to consider the questions of remedy which have been argued in the cases now before us. The entry must be: Petition for prohibition denied. Bill in equity dismissed. (197 Mass. 267) LEOMINSTER GASLIGHT CO. v. HIL LERY et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1908.) 1. LANDLORD AND TENANT-LEASES-RECORD ING. A lease for the term of five years, with a covenant for a renewal upon the same terms for a further term of five years, was a lease |