Independent contractor (Linton v. Smith, 8 Gray, 147; Conners v. Hennessey, 112 Mass. 96; Morgan v. Smith, 159 Mass. 570, 35 N. E. 101; Reagan v. Casey, 160 Mass. 374, 36 N. E. 58; Dane v. Cochrane Chemical Co., 164 Mass. 453, 41 N. E. 678; Boomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004, 53 L. R. A. 172; Eldred v. Mackie, 178 Mass. 1, 59 N. E. 673; Dutton v. Amesbury Bank, 181 Mass. 154, 63 N. E. 405), and that the plaintiff was his employé and not an employé of the defendant.

We agree with the plaintiff in his contention that where an owner makes a contract to have work done for him by an independent contractor, with his (the owner's) apparatus, the owner owes a duty to employés of the contractor. This is so at common law. Mulchey v. Methodist Religious Society, 125 Mass. 489; Hayes v. Philadelphia & Reading Coal & Iron Co., 150 Mass. 457, 23 N. E. 225. See, also, Curley v. Harris, 11 Allen, 112; Conlon v. Eastern Railroad, 135 Mass. 195; Perkins v. Furness, Withey & Co., 167 Mass. 403, 45 N. E. 759. The effect of Rev. Laws, c. 106, § 76, is in our opinion to make certain that the intervening contract does not prevent the owner's owing a duty directly to the employé of the contractor. We do not think that it was intended "to enlarge the liability" of the owner, as was said in Toomey v. Donovan, 158 Mass. 232, 236, 33 N. E. 396. In that respect section 76 is like section 71, Rev. Laws, c. 106.

Further, we are of opinion that the duty of the owner to the employé of the contractor is the duty owed by an employer to his own employé in such a case. In case of permanent apparatus to be used by an employé, there is an invitation on the part of the owner to use the apparatus. But it is an invitation to use the apparatus then owned by the owner. That being the invitation, no duty grows out of that employment to buy a new and better machine, or, as it is usually said, the employé as matter of contract, assumes all obvious risks incident to the use of the apparatus on which he is employed to work. The same is true in case the work is to be done by an independent contractor. The invitation held out by the owner by making a contract for work to be done with his apparatus is to use that apparatus, and not another apparatus. If an employé of the contractor accepts that invitation, no duty grows out of that invitation and the acceptance of it to buy a new or better apparatus. In the case at bar the evidence warranted a finding that the defendant's automatic apparatus was not properly balanced, and that for that reason it did not always discharge its load and come back latched and mouth up, and that this defect was the cause or a contributing cause of the injury here complained of. But there was no evidence that any thing was out of repair. There was therefore no evidence that the defendant had failed in the performance of a duty owed by him to the plaintiff.

It may seem hard on the plaintiff in the

case at bar to hold that he assumed the risk of this bucket's not working as it should have worked, when he was employed in a hurry and was injured the first time the bucket returned after he went to work. Whether that would have made any difference if he had been employed by the defendant, or if he had sued the contractor need not be considered. His rights against the defendant grow out of the invitation given the plaintiff by reason of the contract with the plaintiff's employer. By inviting the contractor's employé to use that apparatus, the defendant came under no duty to perfect it in matters which were obvious. The invitation given by the defendant to the contractor's employés cannot be affected by the circumstances under which the employé was employed by the independent contractor. This distinguishes the case at bar from Ferren v. Old Colony Railroad, 143 Mass. 197, 9 N. E. 608, were it not otherwise distinguishable, as we think it is. Exceptions overruled.

(190 Mass. 298)

WESTON V. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts Essex. Feb. 26, 1906.) CARRIERS-DELAY IN TRANSPORTATION-DAM

AGES.

Where scenery and theatrical proprieties were shipped under a written contract, but the carrier knew that they were to be used at destination in a widely advertised exhibition, and that the shipper was under a great expense in their use, in an action for negligent delay in transportation, in which no loss of special profits was sought to be recovered, plaintiff was entitled to recover his ordinary gross earnings, less such expenses, if any, as the deprivation of the use of the property saved him from.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 451.]

Exceptions from the Superior Court, Essex County; Chas. A. De Courcy, Judge.

Action by one Weston against the Boston & Maine Railroad. Judgment for plaintiff granting insufficient relief, and he brings exceptions. New trial ordered.

LORING, J. This case presents in different forms but one question, namely: To what damages is the owner of a theatrical exhibit entitled in case of a negligent delay in the transportation of his scenery and other theatrical properties by a carrier who had full knowledge that they were to be used in an exhibition previously widely advertised at the place of destination, and that the owner was under an expense of $300 or $400 a week in that connection. The judge ruled that the plaintiff was limited to $4, "the actual money lost or expended in looking up the goods."

The first ground on which the defendant has undertaken to support this ruling is that

the shipping receipt, or the shipping receipt and the shipping order, constitute a written contract between the parties, by which, and by which alone, their rights are to be determined. No authorities have been cited for this contention, and we conceive that none can be found to support it. We assume, for the purposes of this decision, that this shipping receipt, or at any rate the shipping order and this receipt taken together, constitute a written contract. But it is always competent to show knowledge by the contracting parties to a written contract of the circumstances on the basis of which it is made, for the purpose of showing what was within the contemplation of the parties in making the contract. Knowledge of the circumstances which form the basis on which the contract is made is competent on the question as to what damages were in contemplation of the parties to it, whether a party seeks to recover ordinary or special damages. That has been laid down in all the cases on the subject. See, for example, Scott v. Boston & New Orleans Steamship Co., 106 Mass. 468; Harvey v. Connecticut & Passumpsic River Railroad, 124 Mass. 421, 26 Am. Rep. 673; Mather v. American Express Co., 138 Mass. 55, 52 Am. Rep 258; Lonergan v. Waldo, 179 Mass. 135, 60 N. E. 479, 88 Am. St. Rep. 365; Hadley v. Baxendale, 9 Ex. 341; Horne v. Midland Railway, L. R. 7 C. P. 583 (s. c., Ex. Ch. L. R. 8 C. P. 131); Simpson v. London & Northwestern Railway, 1 Q. B. D. 274; Grebert Borgnes v. Nugent, 15 Q. B. D. 85.

The next ground on which the defendant has sought to support the ruling is on the authority of Waite v. Gilbert, 10 Cush. 177; Harvey v. Connecticut & Passumpsic River Railroad, 124 Mass. 421, 26 Am. Rep. 673; and Swift River Co. v. Fitchburg Railroad, 169 Mass. 326, 47 N. E. 1015, 61 Am. St. Rep. 288. But the plaintiffs in those cases were confined to the damages to which the plaintiff was confined in the case at bar, for want of proof of notice, while in the case at bar proof of the necessary notice was plenary. Where a plaintiff is deprived of the use of property valuable for use, and the property is something that can be replaced, his damages are the expenses of hiring the property which he is forced to substitute for it. But, if the property is such that it cannot be replaced, the measure of damages is what such property is ordinarily worth for use. See Fletcher v. Tayleur, 17 C. B. 21, 28; Cory v. Thames Iron Works & Shipbuilding Co. L. R. 3 Q. B. 181; Ex parte Cambrian Steam Packet Co., L. R. 6 Eq. 396, 308 (S. C. L. R. 4 Ch. 112, 117). There are no cases in this commonwealth very near to the one under discussion. Perhaps the nearest are the cases in which it is held, in an action of trover, that where the property converted has no market value, but has a special value to the plaintiff, he can recover that value. Stickney v. Ailen, 10 Gray, 352; Green v. Boston & Lowel! Railroad, 128 Mass. 221,

35 Am. Rep. 370; Mather v. American Express Co., 138 Mass. 55, 52 Am. Rep. 258. See, also, in this connection, Wall v. Platt, 169 Mass. 406, 48 N. E. 270.

Where the article of the use of which the plaintiff has been wrongfully deprived cannot be replaced, and the plaintiff recovers for being deprived of the use of what such property ordinarily earns, he recovers profits in one sense of the word, but not in that sense of the word in which it is used when it is said that profits cannot be recovered because too remote. What is meant by that is that the plaintiff cannot recover for the loss of special profits, such as a particular bargain which he has lost. For a good statement of the distinction, see Masterton v. Mayor of Brooklyn, 7 Hill (N. Y.) 62, 42 Am. Dec. 38. There are cases where contracts are made with reference to such special profits, and where such special profits can be recovered. Such profits were recovered in Grebert Borgnes v. Nugent, 15 Q. B. D. 85; and it was such special profits that were unsuccessfully sought for in Waite v. Gilbert, 10 Cush. 177; Harvey v. Connecticut & Passumpsic River Railroad, 124 Mass. 421, 26 Am. Rep. 673; Swift River Co. v. Fitchburg Railroad, 169 Mass. 326, 47 N. E. 1015, 61 Am. St. Rep. 288; Hadley v. Baxendale, 9 Ex. 341; and Horne v. Midland Railway, L. R. 7 C. P. 583 (s. c., L. R. 8 C. P. 131). The difference between those cases and the case at bar is this: Delay in the delivery of scenery and the other properties of a traveling theatrical company ordinarily means no performance by the company. But delay in the transportation of the broken shaft of a mill, for example, as in Hadley v. Baxendale, supra, does not ordinarily mean that the mill will stop.

We construe the statement of the plaintiff's counsel in the case at bar, "that he claimed no loss of profits and no loss in the market value of the goods by reason of the delay in the delivery of the goods, but that he did claim loss in the rental value or the loss of the use of the property," to be a statement that he did not ask for loss of special profits, but for loss of the ordinary earnings of the property here in question. The case at bar is not a case of special profit or special damage, but a case of the ordinary damages consequent on a delay in the delivery of scenery and other properties of a traveling theatrical company. That a common carrier with notice is liable in such a case is plain from the decision made in Simpson v. London & Northwestern Railway, 1 Q. B. D. 274, as to delay in the delivery of samples to be exhibited at a cattle show. The ordinary damages in case of a delay in the transportation of such property as we have in the case at bar are different from the ordinary damages in case of a delay in the transportation of ordinary merchandise, and for that reason carriers usually put such property in a different classification from

that in which ordinary merchandise is put. The question, however, is the ordinary damage from a delay in the transportation of that kind of freight. To get those ordinary damages, notice that the freight to be transported is that kind of freight, and that it is to be used at its destination, must be given to the carrier; and the damages recoverable are the ordinary earnings of the property in question. See Cory v. Thames Iron Works & Shipbuilding Co., and Ex parte Cambrian Steam Packet Co., ubi supra.

The case at bar presents a further question not raised by the facts of the cases last cited. There was evidence here that the plaintiff told the defendant that he was "under a big expense, between $300 and $400 a week," in the use of the thing delayed in transportation. In such a case, since the owner has to pay the expenses or some of the expenses incident to using the property, he can recover, not the ordinary net earnings, but the ordinary gross earnings, less such expenses, if any, as the deprivation of the use of the property saved him from. The concession made by the plaintiff's counsel, that he did not ask for special profits, saves us from considering the suggestion thrown out in Lonergan v. Waldo, 179 Mass. 135, 138, 60 N. E. 479, 88 Am. St. Rep. 365, that it may be that the fact that a carrier cannot refuse to carry goods offered to him for transportation prevents him from being held for special damages or special profits, as to which see Kelly, C. B., in Horne v. Midland Railway, L. R. 8 C. P. 131, 136, 137, and Mayne, Damages (7th Ed.) 42.

The defendant raised a question as to whether an exception was properly taken to the offer to prove the expense the plaintiff was under while waiting for the goods in question. But since, in our opinion, the case must go back for a new trial by reason of his other exceptions, it is not necessary to decide whether that exception was properly saved or not.

The plaintiff is entitled to a new trial on the question of damages. So ordered.

under section 58 was not insufficient because it did not allege that defendant was charged with any duty in reference to the books named in the indictment or had access or right of access to them.

3. CRIMINAL LAW-DECLARATIONS-EVIDENCE. On a prosecution under Rev. Laws, c. 208, § 58, on the ground that defendant had made false entries in the book of a corporation so as to justify the declaration of dividends, a witness testified that the president of the corporation said in defendant's hearing that defendant had made wrong entries, and that witness asked the president whether the counsel of the corporation was "fully informed," and that the president said he did not think he was. Held, that such statements in defendant's presence, without contradiction by him, were admissible.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 968-972.]

4. CORPORATIONS - OFFICERS - FALSE ENTRY IN BOOKS-DEFENSES.

On a prosecution under Rev. Laws, c. 208, § 58, for making false entries in the books of a corporation whereby the payment of dividends was justified, a contention that the assets belonged to the shareholders, and that if they received dividends they did not earn they lost nothing, was unavailable as a defense, as the effect of the entries upon creditors was fraudulent.

5. SAME BOOKS.

WHAT CONSTITUTES CORPORATE

Though check books, on the stubs of which false entries of deposit were made, were issued by the banks and given away, they were books of entry within the meaning of section 58.

Exceptions from Superior Court, Essex County; Wm. B. Stevens, Judge.

One Dewhirst was convicted of making false entries in a book of entry of a corporation, with intent to defraud, and he brings exceptions. Exceptions overruled.

W. Scott Peters, for the Commonwealth. Sweeney, Dow & Cox, for defendant.

LORING, J. 1. The motion to quash was rightly overruled. The objection specifically assigned is that "in none of said counts is it alleged that the defendant was charged with any duty in reference to the books of the corporation named in said indictment, or had access or right of access to said books." This case comes within the general principle that it is enough if the crime be charged in the language of the act creating it. Commonwealth v. Ashton, 125 Mass. 384; Commonwealth v. Prescott, 151 Mass. 60, 23 N. E. 729; Commonwealth v. Dill, 160 Mass. 536, 36 N. E. 472; Commonwealth v. Hodgkins, 170 Mass. 197, 49 N. E. 97; Commonwealth v. Danziger, 176 Mass. 290, 57 N. E. 461. In ascertaining the crime created by Rev. Laws, c. 208, § 58, the section in question, section 59 is not to be read into it, as the defendant has contended.

2. The exception to the admission of what was said by others in the defendant's hearing was not well taken. It was admitted on the ground that the defendant by remaining silent admitted that what was stated was true, as to which see Commonwealth v. McCabe, 163 Mass. 98, 39 N. E. 777; Commonwealth v. Funai, 146 Mass. 570, 16

N. E. 458; Commonwealth v. Brailey, 134 Mass. 527; Commonwealth v. Brown, 121 Mass. 69. The principle is admitted by the defendant, but what he complains of here is its application. The facts were as follows: Since its organization in 1884, the defendant was and had been the corporation clerk and general manager of a co-operative association organized under Rev. Laws, c. 110. Since its organization the association had declared quarterly dividends until October, 1903. At a meeting of the directors on October 26, 1903, it appeared that, while the report of the defendant as general manager for the preceding quarter showed an apparent profit that would justify the payment of a dividend, there was not sufficient cash to pay it. An examination of the books of the corporation by experts showed a shortage of cash. The examination also disclosed entries in the handwriting of the defendant, some in pencil and some in ink, some on the stubs of the check books issued by the two banks aforesaid, and some on the journal of the corporation, purporting to show deposits, at certain periods, of moneys in said banks, which had not been actually made therein, and also of balances in said banks at certain periods which were incorrect, and these entries were the subject of the indictment. There was also evidence tending to show that these entries were made to force cash balances at the time of the quarterly dividends. After the commonwealth had introduced in evidence, without objection, certain statements made by the defendant at the directors' meeting of October 26th, to the effect that the shortage was caused by paying dividends that had not been earned, and that the dividends had been declared to save the "honor" of the association, a witness was allowed to testify, against the objection of the defendant, that later the president of the association said in the defendant's hearing that the defendant had "made wrong entries to cover the deficiency up, for the purpose of covering the deficiency up," and that the witness asked the president whether the counsel of the association, who had come to the meeting to give advice, was "fully informed," and that the president said, "I don't think he is." It was to these statements, made in the defendant's presence without being contradicted by him, that the defendant took an exception. The evidence was admissible.

3. The first ruling asked for was properly refused. The defendant's argument in support of his exception to the refusal to give this ruling is that the assets belonged to the shareholders, and if the shareholders received dividends that they did not earn they had not thereby lost anything. The difficulty with the defendant's contention is that such a dividend is a fraud in itself. It is not true, as the defendant assumes in his contention, that the only effect of such a dividend must

be to transfer to the pockets of the shareholders money which of necessity belonged either to the association or to them. If the association was made insolvent by these dividends, the money divided did not belong to the shareholders, but to the creditors of the association. Even if it was solvent, these entries may have been made to induce sales of merchandise to the association on credit to which it was not entitled, or the sale by shareholders of shares for more than their real value, or to induce the association to continue in business or to continue to employ the defendant, which it would not have done had the facts been known. Any one of these would be fraudulent. The ruling was rightly refused.

4. There is nothing in the defendant's argument that, because the check books (on the stubs of which false entries of deposits were made) were "issued" by the banks, they were not books of entry of the association within the meaning of Rev. Laws, c. 208, § 58. These check books became books of the association within the meaning of the act, by the accounts of the association being kept in them by the officers and clerks of the association. Whether the books were given to the association or bought by it was of no consequence.

Exceptions overruled.

(130 Mass. 314)

ENFIELD MFG. CO. v. WARD. (Supreme Judicial Court of Massachusetts. Hampshire. Feb. 26, 1906.)

1. RAILROADS-RIGHTS IN LAND-EFFECT OF ABANDONMENT.

Where a railroad is deeded the fee to land by warranty deed, its abandonment of the land for railroad purposes does not operate to divest it of the fee.

2. SAME ABANDONMENT-INTENT.

Abandonment of land for railroad purposes is, in part at least, a question of intention. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 214.]

3. SAME EVIDENCE OF ABANDONMENT.

The fact that trustees under a mortgage of a railroad and its franchises pay no taxes on certain land belonging to the railroad, and do not know of its existence, and pay no attention to it, does not tend to prove an abandonment of such land by them or by the railroad company.

Exceptions from Superior Court, Hampshire County; Elisha B. Maynard, Judge. Action by the Enfield Manufacturing Company against Arthur J. N. Ward. A verdict was ordered for defendant, and plaintiff excepted. Exceptions overruled.

The mortgage referred to in the opinion was a mortgage on the franchise and property of the Massachusetts Central Railroad Company, which mortgage was foreclosed and constituted a link in defendant's chain of title.

Otis E. Dunham and H. M. Coney, for plaintiff. John C. Hammond and J. H. Schoonmaker, for defendant.

MORTON, J. This is an action of trespass quare clausum, and the matter in dispute relates to the title of the locus. The plaintiff claims title through one Tebo, who entered and took possession of the premises in July, 1903, and a few days after executed a warranty deed of them to the plaintiff. One Caswell afterwards surveyed them for the plaintiff and put in pins. The defendant claims title, through its predecessors, from the Minot Manufacturing Company, which formerly owned the premises, and in 1873 conveyed them by warranty deed to the Massachusetts Central Railroad Company. The railroad company began work upon its location, and a part of the roadbed across the locus was graded. This work ceased in 1874, and the locus never was used for railroad purposes. The railroad was built over another location several miles distant. The plaintiff contends that the locus had been abandoned, and that Tebo's entry gave him a seisin which his deed operated to convey to the plaintiff and under which the plaintiff itself also entered. At the close of the evidence the plaintiff asked the court to rule that the locus had been abandoned. The defendant asked for a ruling that there was no evidence for the jury on the question of abandonment. The court ordered a verdict for the defendant, and the case is here on the plaintiff's exceptions.

It does not appear on what ground the court ordered the verdict for the defendant, but we think that the ruling was right. The abandonment of the location for railroad purposes by the railroad company and its successors did not divest it or them of the fee. The case would have stood very differently if the interest of the railroad company had been limited to a right of way acquired by the location of its road under the statute. In that case the fee would have remained in the landowner, and an abandonment of the location would have operated as an extinguishment of the easement. But in this case the fee was in the railroad company, and still remained in it, notwithstanding the abandonment of the location for railroad purposes by it and its successor, the Central Massachusetts Railroad Company, and passed under the deed of the latter to the Boston & Maine Railroad, and from it, by deed of release and quitclaim, to the plaintiff. Whether there could be an abandonment by the owner of the fee that would operate to divest him of his title short of possession continued for such a length of time as to bar an action by him for the recovery of the premises we need not consider. We think that there was no evidence of such an abandonment in this case. Abandonment is, in part at least, a question of intention, and, so far from there having been an intention on the part of the Massachusetts Central Railroad Company to abandon the locus, the vote of the directors passed in May, 1880, authorizing the president to

take such action as he should deem expedient in regard to the disposition of land acquired by the company upon that part of the line which had been abandoned in the towns of Hardwick, Greenwich, Enfield (where the locus was), and Belchertown, indicated directly the contrary. The fact that the trustees under the mortgage paid no taxes on the land and did not know of it and paid no attention to it had no tendency to prove an abandonment of it either on their part or that of the railroad company, even if we assume that an abandonment by the mortgagee could affect the title of the mortgagor. The question of ultra vires is not involved. The railroad company acquired the property rightfully, and there is nothing in the original act of incorporation (St. 1869, p. 590, c. 260), or in St. 1880, p. 113, c. 169, or the other amendatory acts, which rendered its continued ownership of the property unlawful after the location had been abandoned. Besides, it is doubtful, to say the least, whether if there were any qestion of ultra vires it could be raised by the plaintiff. There is nothing to show any interruption by the defendant of the plaintiff's right of way over the locus. And, as already observed, the action relates to the title and not to the right of way.

Exceptions overruled.

(190 Mass. 304)

JOYCE v. EXETER, H. & A. ST. RY. CO. (Supreme Judicial Court of Massachusetts. Essex. Feb. 26, 1906.)

1. STREET RAILROADS-OPERATION OF CARSFRIGHTENING HORSES-CONTRIBUTORY NEGLI

GENCE.

In an action against a street railway company for injuries to plaintiff's horse, which it was alleged was frightened by one of defendant's cars, evidence held to justify submission to the jury of the question of plaintiff's contributory negligence.

2. SAME-NEGLIGENCE.

In an action against a street railway company for injuries to plaintiff's horse, which it was alleged was frightened by one of defendant's cars, evidence held to justify submission to the jury of the question of defendant's negligence.

Exceptions from Superior Court, Essex County; Chas. A. De Courcy, Judge.

Action by John J. Joyce against the Exeter, Hampton & Amesbury Street Railway Company. Judgment for plaintiff, and de fendant brings exceptions. Exceptions overruled.

Robt. E. Burke and Jacob T. Choate, for plaintiff. Chas. H. Poor, and Edmund B. Fuller, for defendant.

SHELDON, J. The plaintiff seeks to recover from the defendant for injuries to his horse, alleged to have been caused by the manner in which the defendant operated its railway. The plaintiff occupied a store in Amesbury, and the defendant is a street rail