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independent contractor (Linton v. Smith, 8 , case at bar to hold that he assumed the risk Gray, 147; Conners v. Hennessey, 112 Mass. of this bucket's not working as it should 96; Morgan v. Smith, 159 Mass. 570, 35 N. E. have worked, when he was employed in a 101; Reagan v. Casey, 160 Mass. 374, 36 N. | hurry and was injured the first time the E, 58; Dane v, Cochrane Chemical Co., 164 | bucket returned after he went to work. Mass. 453, 41 N. E. 678; Boomer v. Wilbur, Whether that would have made any differ176 Mass. 482, 57 N. E. 1004, 53 L. R. A. 172; ence if he had been employed by the defendEldred y, Mackie, 178 Mass. 1, 59 N. E. 673; 1 ant, or if he had sued the contractor need Dutton V. Amesbury Bank, 181 Mass. 154, not be considered. His rights against the 63 N. E. 405), and that the plaintiff was his defendant grow out of the invitation given employé and not an employé of the defendant. | the plaintiff by reason of the contract with

We agree with the plaintiff in his conten the plaintiff's employer. By inviting the tion that where an owner makes a contract contractor's employé to use that apparatus, to have work done for him by an independent the defendant came under no duty to percontractor, with his (the owner's) apparatus, fect it in matters which were obvious. The the owner owes a duty to employés of the con- invitation given by the defendant to the contractor. This is so at common law. Mulchey tractor's employés cannot be affected by the V. Methodist Religious Society, 125 Mass. circumstances under which the employé was 489; Hayes v. Philadelphia & Reading Coal employed by the independent contractor. & Iron Co., 150 Mass. 457, 23 N. E. 225. This distinguishes the case at bar from FerSee, also, Curley V. Harris, 11 Allen, 112; ren v. Old Colony Railroad, 143 Mass. 197, Conlon v. Eastern Railroad, 135 Mass. 195; 9 N. E. 608, were it not otherwise distinPerkins v. Furness, Withey & Co., 167 Mass. guishable, as we think it is. 403, 45 N. E. 759. The effect of Rev. Laws, Exceptions overruled. c. 106, § 76, is in our opinion to make cer. tain that the intervening contract does not prevent the owner's owing a duty directly

(190 Mass. 298) to the employé of the contractor. We do not WESTON V. BOSTON & M. R. R. think that it was intended “to enlarge the (Supreme Judicial Court of Massachusetts liability of the owner, as was said in

Essex. Feb. 26, 1906.) Toomey v. Donovan, 158 Mass. 232, 236, 33 CARRIERS--DELAY IN TRANSPORTATION-DAYN. E. 396. In that respect section 76 is like

AGES.

Where scenery and theatrical proprieties section 71, Rev. Laws, c. 106.

were shipped under a written contract, but the Further, we are of opinion that the duty of carrier knew that they were to be used at desthe owner to the employé of the contractor is tination in a widely advertised exhibition, and the duty owed by an employer to his own

that the shipper was under a great expense in

their use, in an action for negligent delay in employé in such a case. In case of permanent

transportation, in which no loss of special apparatus to be used by an employé, there profits was sought to be recovered, plaintiff vas is an invitation on the part of the owner to entitled to recover his ordinary gross earnings,

less such expenses, if any, as the deprivation use the apparatus. But it is an invitation to

of the use of the property saved him from. use the apparatus then owned by the owner.

(Ed. Note. For cases in point, see vol. 9, That being the invitation, no duty grows out Cent. Dig. Carriers, $$ 451.) of that employment to buy a new and better machine, or, as it is usually said, the employé

Exceptions from the Superior Court, Essex as matter of contract, assumes all obvious risks

County; Chas. A. De Courcy, Judge. incident to the use of the apparatus on which

Action by one Weston against the Boston he is employed to work. The same is true

& Maine Railroad Judgment for plaintiff in case the work is to be done by an inde

| granting insufficient relief, and he brings ex. pendent contractor. The invitation heid out

ceptions. New trial ordered. by the owner by making a contract for work Sanborn & Sanborn, for plaintiff. Henry to be done with his apparatus is to use that F. Hurlburt and Damon E. Hall, for apparatus, and not another apparatus. If | defendant. an employé of the contractor accepts that invitation, no duty grows out of that invita- | LORING, J. This case presents in differtion and the acceptance of it to buy a new ent forms but one question, namely: To or better apparatus. In the case at bar the what damages is the owner of a theatrical evidence warranted a finding that the de exhibit entitled in case of a negligent delay fendant's automatic apparatus was not prop in the transportation of his scenery and other erly balanced, and that for that reason it did theatrical properties by a carrier who had not always discharge its load and come back full knowledge that they were to be used in latched and mouth up, and that this defect an exhibition previously widely advertised at was the cause or a contributing cause of the the place of destination, and that the owner injury here complained of. But there was was under an expense of $300 or $400 a week no evidence that any thing was out of repair. in that connection. The judge ruled that the There was therefore no evidence that the plaintiff was limited to $4, “the actual money defendant had failed in the performance of a lost or expended in looking up the goods." duty owed by him to the plaintiff.

The first ground on which the defendant It may seem hard on the plaintiff in the has undertaken to support this ruling is that the shipping receipt, or the shipping receipt , 35 Am. Rep. 370; Mather V. American Exand the shipping order, constitute a written press Co., 138 Mass. 55, 52 Am. Rep. 258. contract between the parties, by which, and See, also, in this connection, Wall v. Platt, by which alone, their rights are to be deter 169 Mass. 406, 48 N. E. 270. mined. No authorities have been cited for Where the article of the use of which the this contention, and we conceive that none plaintiff has been wrongfully deprived cancan be found to support it. We assume, for not be replaced, and the plaintiff recovers the purposes of this decision, that this ship for being deprived of the use of what such ping receipt, or at any rate the shipping or property ordinarily earns, he recovers profits der and this receipt taken together, constitute in one sense of the word, but not in that sense a written contract. But it is always compe of the word in which it is used when it is tent to show knowledge by the contracting said that profits cannot be recovered because parties to a written contract of the circum | too remote. What is meant by that is that stances on the basis of which it is made, for the plaintiff cannot recover for the loss of the purpose of showing what was within the special profits, such as a particular bargain contemplation of the parties in making the which he has lost. For a good statement of contract. Knowledge of the circumstances the distinction, see Masterton V. Mayor of which form the basis on which the contract is Brooklyn, 7 Hill (N. Y.) 62, 42 Am. Dec. 38. made is competent on the question as to There are cases where contracts are made what damages were in contemplation of the with reference to such special profits, and parties to it, whether a party seeks to re where such special profits can be recovered. cover ordinary or special damages. That has Such profits were recovered in Grebert Borgbeen laid down in all the cases on the subject. nes v. Nugent, 15 Q. B. D. 85; and it was See, for example, Scott v. Boston & New Or such special profits that were unsuccessfully leans Steamship Co., 106 Mass. 468; Harvey sought for in Waite v. Gilbert, 10 Cush. 177; v. Connecticut & Passumpsic River Railroad, Harvey v. Connecticut & Passumpsic River 124 Mass. 421, 26 Am. Rep. 673; Mather v. Railroad, 124 Mass. 421, 26 Am. Rep. 673; American Express Co., 138 Mass. 55, 52 Am. Swift River Co. v. Fitchburg Railroad, 169 Rep 258; Lonergan v. Waldo, 179 Mass. 135, Mass. 326, 47 N. E. 1015, 61 Am. St. Rep. 60 N. E. 479, 88 Am. St. Rep. 365; Hadley v. 288; Hadley V. Baxendale, 9 Ex. 341; and Baxendale, 9 Ex. 341; Horne v. Midland Horne v. Midland Railway, L. R. 7 C. P. Railway, L. R. 7 C. P. 583 (s. C., Ex. Ch. L. R. 583 (s. C., L. R. 8 C. P. 131). The difference 8 C. P. 131); Simpson v. London & Northwest between those cases and the case at bar is ern Railway, 1 Q. B. D. 274 ; Grebert Borgnes this: Delay in the delivery of scenery and v. Vugent, 15 Q. B. D. 85.

the other properties of a traveling theatrical The next ground on which the defendant company ordinarily means no performance by has sought to support the ruling is on the the company. But delay in the transportaauthority of Waite v. Gilbert, 10 Cush. 177; tion of the broken shaft of a mill, for exHarvey v. Connecticut & Passumpsic River ample, as in Hadley V. Baxendale, supra, Railroad, 124 Mass. 421, 26 Am. Rep. 673; and does not ordinarily mean that the mill will Swift River Co. v. Fitchburg Railroad, 169 stop. Mass. 326, 47 N. E. 1015, 61 Am. St. Rep. We construe the statement of the plain288. But the plaintiffs in those cases were tiff's counsel in the case at bar, “that he confined to the damages to which the plain claimed no loss of profits and no loss in the tiff was confined in the case at bar, for want market value of the goods by reason of the of proof of notice, while in the case at bar delay in the delivery of the goods, but that proof of the necessary notice was plenary. he did claim loss in the rental value or the Where a plaintiff is deprived of the use of loss of the use of the property," to be a property valuable for use, and the property statement that he did not ask for loss of spe. is something that can be replaced, his dam cial profits, but for loss of the ordinary ages are the expenses of hiring the property earnings of the property here in question. which he is forced to substitute for it. But, The case at bar is not a case of special profit if the property is such that it cannot be re or special damage, but a case of the ordinary placed, the measure of damages is what such damages consequent on a delay in the deproperty is ordinarily worth for use. See livery of scenery and other properties of a Fletcher v. Tayleur, 17 C. B. 21, 28; Cory v. traveling theatrical company. That a comThames Iron Works & Shipbuilding Co. L, R. mon carrier with notice is liable in such a 3 Q. B. 181; Ex parte Cambrian Steam Pac case is plain from the decision made in Simpket Co., L. R. 6 Eq. 396, 308 (S. C. L. R. 4 son v. London & Northwestern Railway, 1 Q. Ch, 112, 117). There are no cases in this B. D. 274, as to delay in the delivery of commonwealth very near to the one under samples to be exhibited at a cattle show. discussion. Perhaps the nearest are the The ordinary damages in case of a delay in cases in which it is held, in an action of the transportation of such property as we trover, that where the property converted has have in the case at bar are different from the no market value, but has a special value to ordinary damages in case of a delay in the the plaintiff, he can recover that value. transportation of ordinary merchandise, and Stickney V. Ailen, 10 Gray, 332; Green v. for that reason carriers usually put such Boston & Lowell Railroad, 128 Mass. 221, | property in a different classification from

hat in which ordinary merchandise is put. | under section 58 was not insufficient because The question, however, is the ordinary dam

it did not allege that defendant was charged age from a delay in the transportation of

with any duty in reference to the books named

in the indictment or had access or right of that kind of freight. To get those ordinary access to them. damages, notice that the freight to be trans 3. CRIMINAL LAW-DECLARATIONS-EVIDENCE. ported is that kind of freight, and that it is

On a prosecution under Rev. Laws, c. 208, to be used at its destination, must be given

§ 58, on the ground that defendant had made

false entries in the book of a corporation so as to the carrier; and the damages recoverable to justify the declaration of dividends, a witness are the ordinary earnings of the property testified that the president of the corporation in question. See Cory v. Thames Iron Works

said in defendant's hearing that defendant had

made wrong entries, and that witness asked the & Shipbuilding Co., and Ex parte Cambrian

president whether the counsel of the corporaSteam Packet Co., ubi supra.

tion was "fully informed," and that the presiThe case at bar presents a further ques dent said he did not think he was. Held, that tion not raised by the facts of the cases last

such statements in defendant's presence, with

out contradiction by him, were admissible. cited. There was evidence here that the

[Ed. Note.-For cases in point, see vol. 14, plaintiff told the defendant that he was "un

Cent. Dig. Criminal Law, $S 968-972.] der a big expense, between $300 and $400 a

4. CORPORATIONS - OFFICERS — FALSE ENTET week,” in the use of the thing delayed in trans IN BOOKS-DEFENSES. portation. In such a case, since the owner On a prosecution under Rev. Laws, c. 208, has to pay the expenses or some of the ex

$ 58, for making false entries in the books of a

corporation whereby the payment of dividends penses incident to using the property, he

was justified, a contention that the assets be can recover, not the ordinary net earnings, longed to the shareholders, and that if they but the ordinary gross earnings, less such ex received dividends they did not earn they lost

nothing, was unavailable as a defense, as the penses, if any, as the deprivation of the use

effect of the entries upon creditors was frauduof the property saved him from. The con lent. cession made by the plaintiff's counsel, that 5. SAME - WHAT CONSTITUTES CORPORATE he did not ask for special profits, saves us BOOKS. from considering the suggestion thrown out

Though check books, on the stubs of which

| false entries of deposit were made, were issued in Lonergan v. Waldo, 179 Mass. 135, 138, 60

by the banks and given away, they were books N. E. 479, 88 Am. St. Rep. 365, that it may | of entry within the meaning of section 58. be that the fact that a carrier cannot refuse Exceptions from Superior Court, Essex to carry goods offered to bim for transporta- |

for transporta. | County; Wm. B. Stevens, Judge. tion prevents him from being held for special

One Dewhirst was convicted of making damages or special profits, as to which see

false entries in a book of entry of a corporaKelly, 0. B., in Horne v. Midland Railway,

tion, with intent to defraud, and he brings L. R. 8 C. P. 131, 136, 137, and Mayne, Dam

exceptions. Exceptions overruled. ages (7th Ed.) 42. The defendant raised a question as to

W. Scott Peters, for the Commonwealth. whether an exception was properly taken to

| Sweeney, Dow & Cox, for defendant. the offer to prove the expense the plaintiff was under while waiting for the goods in

LORING, J. 1. The motion to quash was question. But since, in our opinion, the case

rightly overruled. The objection specifically must go back for a new trial by reason of

assigned is that "in none of said counts is his other exceptions, it is not necessary to

it alleged that the defendant was charged decide whether that exception was properly

with any duty in reference to the books of saved or not.

the corporation named in said indictment, The plaintiff is entitled to a new trial on

or bad access or right of access to said the question of damages. So ordered.

books." This case comes within the general principle that it is enough if the crime be

charged in the language of the act creating (190 Mass. 293)

it. Commonwealth v. Ashton, 125 Mass. 384; COMMONWEALTH V. DEWHIRST. Commonwealth v. Prescott, 151 Mass. 60, 23 (Lapreme Judicial_Court of Massachusetts.

N. E. 729; Commonwealth v. Dill, 160 Mass. Essex. Feb. 26, 1906.)

536, 36 N. E. 472; Commonwealth v. Hodgkins, 1. INDICTMENT – STATUTORY OFFENSE — STAT

170 Mass. 197, 49 N. E. 97; Commonwealth v. UTORY LANGUAGE.

Danziger, 176 Mass. 290, 57 N. E. 461. In An indictment is sufficient, if the crime be

ascertaining the crime created by Rev. Laws, charged in the language of the act creating it.

C. 208, § 58, the section in question, section (Ed. Note.For cases in point, see vol. 27, Cent. Dig. Indictment and Information, 88 289

59 is not to be read into it, as the defendant 294.]

has contended. 2. CORPORATIONS - OFFICERS — FALSE ENTBY 2. The exception to the admission of what IN BOOKS-INDICTMENT.

was said by others in the defendant's hearRev. Laws, c. 208, 8 58, makes it an offense for the officer of any corporation to make a

ing was not well taken. It was admitted false entry in any book of the corporation, with on the ground that the defendant by re intent to defraud; and section 59 provides that maining silent admitted that what was stat. on the trial of a person under the preceding

| ed was true, as to which see Commonwealth section the books of any corporation to which he had access or right of access shall be admis

| v. McCabe, 163 Mass. 98, 39 N. E. 777; sible in evidence. Held, that an indictment | Commonwealth v. Funai, 146 Mass. 570, 16

N. E. 458; Commonwealth v. Brailey, 134, be to transfer to the pockets of the shareMass. 527; Commonwealth V. Brown, 121 holders money which of necessity belonged Mass. 69. The principle is admitted by the either to the association or to them. If the defendant, but what he complains of here association was made insolvent by these divis its application. The facts were as follows: idends, the money divided did not belong to Since its organization in 1884, the defendant the shareholders, but to the creditors of the was and had been the corporation clerk and association. Even if it was solvent, these general manager of a co-operative associ. entries may have been made to induce sales ation organized under Rev. Laws, C. 110. of merchandise to the association on credit Since its organization the association had to which it was not entitled, or the sale by declared quarterly dividends until October, shareholders of shares for more than their 1903. At a meeting of the directors on Oc real value, or to induce the association to tober 26, 1903, it appeared that, while the continue in business or to continue to employ report of the defendant as general manager the defendant, which it would not have done for the preceding quarter showed an ap had the facts been known. Any one of these parent profit that would justify the payment would be fraudulent. The ruling was rightof a dividend, there was not sufficient cash ly refused. to pay it. An examination of the books of 4. There is nothing in the defendant's arguthe corporation by experts showed a short ment that, because the check books (on the age of cash. The examination also disclosed stubs of which false entries of deposits entries in the handwriting of the defendant, were made) were “issued" by the banks, they some in pencil and some in ink, some on the were not books of entry of the association stubs of the check books issued by the two within the meaning of Rev. Laws, C. 208, banks aforesaid, and some on the journal | 8 58. These check books became books of the corporation, purporting to show de- | association within the meaning of the act, posits, at certain periods, of moneys in said

by the accounts of the association being kept banks, which had not been actually made

in them by the officers and clerks of the therein, and also of balances in said banks association. Whether the books were given at certain periods which were incorrect, and to the association or bought by it was of no these entries were the subject of the indict. consequence. ment. There was also evidence tending to

Exceptions overruled. show that these entries were made to force cash balances at the time of the quarterly

(130 Mass. 314) dividends. After the commonwealth had in

ENFIELD MFG. CO. V. WARD. troduced in evidence, without objection, cer- (Supreme Judicial Court of Massachusetts. tain statements made by the defendant at

Hampshire. Feb. 26, 1906.) the directors' meeting of October 26th, to the | 1. RAILROADS—RIGHTS IN LAND-EFFECT OF effect that the shortage was caused by pay

ABANDONMENT.

Where a railroad is deeded the fee to land ing dividends that had not been earned, and

by warranty deed, its abandonment of the land that the dividends had been declared to for railroad purposes does not operate to disave the "honor" of the association, a wit vest it of the fee. ness was allowed to testify, against the ob

2. SAME-ABANDONMENT INTENT.

Abandonment of land for railroad purposes jection of the defendant, that later the presi.

is, in part at least, a question of intention. dent of the association said in the defend [Ed. Note. For cases in point, see vol. 41, ant's hearing that the defendant had "made ! Cent. Dig. Kailroads, $ 214.] wrong entries to cover the deficiency up, 3. SAME—EVIDENCE OF ABANDONMENT, for the purpose of covering the deficiency

The fact that trustees under a mortgage

of a railroad and its franchises pay no taxes up," and that the witness asked the president

on certain land belonging to the railroad, and whether the counsel of the association, who do not know of its existence, and pay no attenhad come to the meeting to give advice, was tion to it, does not tend to prove an abandon"fully informed," and that the president said,

ment of such land by them or by the railroad

company. "I don't think he is.” It was to these state

Exceptions from Superior Court, Hampments, made in the defendant's presence without being contradicted by him, that the

shire County; Elisha B. Maynard, Judge. defendant took an exception. The evidence

Action by the Enfield Manufacturing Com.

pany against Arthur J. N. Ward. A verdict was admissible. 3. The first ruling asked for was properly

was ordered for defendant, and plaintiff exrefused. The defendant's argument in sup

cepted. Exceptions overruled. port of his exception to the refusal to give

The mortgage referred to in the opinion this ruling is that the assets belonged to the was a mortgage on the franchise and propshareholders, and if the shareholders receiv

erty of the Massachusetts Central Railroad ed dividends that they did not earn they had Company, which mortgage was foreclosed and not thereby lost anything. The difficulty constituted a link in defendant's chain of with the defendant's contention is that such title. a dividend is a fraud in itself. It is not true, Otis E. Dunbam and H. M. Coney, for as the defendant assumes in his contention, plaintiff. John C. Hammond and J. H. that the only effect of such a dividend must Schoonmaker, for defendant,

MORTON, J. This is an action of trespass , take such action as he should deem es. quare clausum, and the matter in dispute re pedient in regard to the disposition of land lates to the title of the locus. The plaintiff acquired by the company upon that part of claims title through one Tebo, who entered the line which had been abandoned in the and took possession of the premises in July, towns of Hardwick, Greenwich, Enfield 1903, and a few days after executed a war- ! (where the locus was), and Belchertown, inranty deed of them to the plaintiff. Onedicated directly the contrary. The fact that Caswell afterwards surveyed them for the the trustees under the mortgage paid no plaintiff and put in pins. The defendant | taxes on the land and did not know of it and claims title, through its predecessors, from paid no attention to it had no tendency to the Minot Manufacturing Company, which prove an abandonment of it either on their formerly owned the premises, and in 1873 part or that of the railroad company, even if conveyed them by warranty deed to the we assume that an abandonment by the Massachusetts Central Railroad Company. mortgagee could affect the title of the mortThe railroad company began work upon its gågor. The question of ultra vires is not location, and a part of the roadbed across involved. The railroad company acquired the the locus was graded. This work ceased in property rightfully, and there is nothing in 1874, and the locus never was used for rail the original act of incorporation (St. 1869, p. road purposes. The railroad was built over 590, c. 260), or in St. 1880, p. 113, c. 169, or another location several miles distant. The the other amendatory acts, which rendered plaintiff contends that the locus had been its continued ownership of the property unabandoned, and that Tebo's entry gave him lawful after the location had been abandona seisin which his deed operated to convey to ed. Besides, it is doubtful, to say the least, the plaintiff and under which the plaintiff whether if there were any qestion of ultra itself also entered. At the close of the evi vires it could be raised by the plaintiff. dence the plaintiff asked the court to rule There is nothing to show any interruption by that the locus had been abandoned. The de the defendant of the plaintiff's right of way fendant asked for a ruling that there was over the locus. And, as already observed, no evidence for the jury on the question of the action relates to the title and not to the abandonment. The court ordered a verdict right of way. for the defendant, and the case is here on Exceptions overruled. the plaintiff's exceptions.

It does not appear on what ground the court ordered the verdict for the defendant,

(190 Mass. 304) but we think that the ruling was right. The JOYCE v. EXETER, H. & A. ST. RY. CO. abandonment of the location for railroad

(Supreme Judicial Court of Massachusetts. purposes by the railroad company and its

Essex. Feb. 26, 1906.) successors did not divest it or them of the 1. STREET RAILROADS-OPERATION OF CARSfee. The case would have stood very dif FRIGHTENING HORSES-CONTRIBUTORY NEGLIferently if the interest of the railroad com

GENCE.

In an action against a street railway company had been limited to a right of way

pany for injuries to plaintiff's horse, which it acquired by the location of its road under was alleged was frightened by one of defendthe statute. In that case the fee would have ant's cars, evidence held to justify submission remained in the landowner, and an abandon

to the jury of the question of plaintiff's con

tributory negligence." ment of the location would have oper

2. SAME-NEGLIGENCE. ated as an extinguishment of the ease In an action against a street railway comment. But in this case the fee was in the pany for injuries to plaintiff's horse, which it railroad company, and still remained in it,

was alleged was frightened by one of defend

ant's cars, evidence held to justify submission notwithstanding the abandonment of the lo

to the jury of the question of defendant's neglication for railroad purposes by it and its gence. successor, the Central Massachusetts Railroad Company, and passed under the deed of

Exceptions from Superior Court, Essex the latter to the Boston & Maine Railroad,

County; Chas. A. De Courcy, Judge. and from it, by deed of release and quit

Action by John J. Joyce against the Ex claim, to the plaintiff. Whether there could

eter, Hampton & Amesbury Street Railway be an abandonment by the owner of the fee

Company. Judgment for plaintiff, and de that would operate to divest him of his ti

fendant brings exceptions. Exceptions overtle short of possession continued for such a

ruled. length of time as to bar an action by him Robt. E. Burke and Jacob T. Choate, for for the recovery of the premises we need not plaintiff. Chas. H. Poor, and Edmund B consider. We think that there was no evi- | Fuller, for defendant. dence of such an abandonment in this case. Abandonment is, in part at least, a question SHELDON, J. The plaintiff seeks to re of intention, and, so far from there having cover from the defendant for injuries to his been an intention on the part of the Massa- horse, alleged to have been caused by the chusetts Central Railroad Company to aban- | manner in which the defendant operated its don the locus, the vote of the directors passed railway. The plaintiff occupied a store in in May, 1880, authorizing the president to Amesbury, and the defendant is a street rail

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