can be done under the easement, but the easement continues. The city may hereafter erect a new reservoir on the same site. Whether the city can continue the pipes after razing the reservoir to the ground under this continuing easement is another matter. The defendant gets no assistance by citing Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, 60 N. E. 977, as to the right of the water company to dam the waters of Little river for a water supply under a vote made by the town of Gloucester in 1682 that "Jacob Davis and others joyning along with him hath liberty of the streams at the head of Little river to sett up a new milne." The ground of the decision on that point is stated ut pages 379, 380, of 179 Mass., and page 980 of 60 N. E., to be: "It is well settled that the rigid rules of construction which are applicable to modern conveyances are not to be applied to transactions of the kind in question, which took place early after the settlement of the country, when conveyancing was little understood. Adams v. Frothingham, 3 Mass. 352, 3 Am. Dec. 151; Stoughton v. Baker, 4 Mass. 522, 3 Am. Dec. 236; Green v. Putnam, 8 Cush. 21, 25. For the same reason, the easement granted was not limited to damming the waters of the stream for the purpose of running a sawmill. Adams v. Frothingham, 3 Mass. 352, 3 Am. Dec. 151."

The master, in our opinion, was wrong in ruling that the use of these pipes for high service was not within the grant. He construed the clause in question to forbid the use of these pipes for conveying water unless that water went into one of the two basins of the reservoir. This was not the case when the high service was in operation, as is explained in the master's report. When the high service was in operation, the water was pumped against the column of water in the standpipe directly into one or another distributing main. But the standpipe was as much a part of the reservoir as the two basins. It is patent that one, if not the main, purpose of getting the new 15-foot strip was to introduce the high service. Water which flowed into the bottom of the standpipe through the 24-inch supply pipe and out of it through the 24-inch distributing main while the high service was in operation was, without question, water conveyed to the reservoir within this grant. In our opinion no distinction can be made between water pumped through the bottom of the standpipe while the high service was in operation and water pumped under the pressure of high service into the distributing mains at the connections in Reservoir street, in the immediate neighborhood of it. We do not find it necessary to consider whether these words permitted the city to convey water from the pond to connections with distributing mains short of, but in the immediate vicinity of, the city reservoir on Reser

voir street, when those same mains are also connected with the outlets of the reservoir. If we assume in favor of the defendant that such a use was a wrongful one, it is plain that it has not ripened into a prescriptive right to use the pipes.

This

The defendant city's claims to this prescriptive right are: First. Since its acts have not been clandestine, it is not necessary for it to show that Mr. Hooper had actual knowledge or is chargeable with knowledge. It is enough that he had the means of knowledge of which he ought to have availed himself. Secondly. That on the evidence the master should have found as a fact that Mr. Hooper ought to have known of the use in fact made. The foundation of the establishment of a right by prescription is the acquiescence on the part of the owner of the servient tenement in the acts which are relied on to establish the easement by prescription. makes it necessary that he should know of those acts or be charged with knowledge of them if he did not in fact know of them. The point has been settled in cases where a party has undertaken to establish a prescriptive right to maintain drains or other appliances under the ground. In such case he must be shown to have known or to be chargeable with knowledge. Carbrey v. Willis, 7 Allen, 364, 83 Am. Dec. 688; Hannefin v. Blake, 102 Mass 297; Union Lighterage Co. v. London Graving Dock Co. [1901] 2 Ch. 300, [1902] 2 Ch. 557; Gately v. Martin [19021 2 Ir. 269. See, also, in this connection, Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338, 11 N. E. 105; Ludlow Manuf. Co. v. Indian Orchard Co., 177 Mass. 61, 63, 58 N. E. 181.

We see nothing in Poignard v. Smith, 6 Pick. 172, much relied on by the defendant, inconsistent with this. The owner of the servient tenement cannot avoid the effect of 20 years' adverse user by showing that he was out of the country, and so did not in fact know of the acts. A servient owner in that condition comes within the second branch of the rule that he is chargeable with knowledge.

The finding of the master as to what Mr. Hooper knew or was chargeable with knowing went further, but included a finding on the point which we decide was material. We see no reason for disturbing the master's finding upon these questions. We agree with the conclusion reached by him.

There must be a decree for the plaintiffs on terms to be settled by a single justice. The interest of the public are concerned in the peremptory shutting off of the water asked for by the plaintiffs. Subject to such modification as may be called for by those public interests, the plaintiffs are entitled to a decree, with costs in accordance with the prayer of their bill

So ordered.

(189 Mass. 522)

GRIFFITH v. KIRLEY et al. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 29, 1905.)

1. PARTNERSHIP-DISSOLUTION-GOOD WILL. The proprietor of a business sold a half of the property used therein, including the good will, to two persons under an agreement providing that the three should carry on the business as a partnership. The partnership continued for some years, when the proprietor dissolved it by a pretended sale of the property belonging to the firm to a secret agent, through whom, without interruption, he carried on the business alone. A good will had attached to the property. Held, that the proprietor, in a suit to settle the partnership, was chargeable with the value of the good will to the same extent as though he had purchased under an order of court for the sale of the property and good will.

2. GOOD WILL--WHAT CONSTITUTES.

The good will sold at a sale of partnership property and good will under an order of court directing the sale is only the probability that the old customers will resort to the old place.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Good Will, § 1.]

3. PARTNERSHIP-DISSOLUTION-GOOD WILL -FINDINGS OF COURT.

In a suit for the dissolution of a Copartnership, the master found that a partner should be charged with the good will of the business, unless the same had passed to the receiver, but did not find the value of the good will. The court on the hearing of the master's report, including the evidence therein stated, found that the value of the tangible property retained by the partner, together with the good will of the firm, was $11,000 in lieu of $6,000 as found by the master as the value of the real estate, tools, and machinery retained by the partner. Held that, the master not having made any finding on the question of the value of the good will and not having reported the evidence on that subject, and the decree reciting that the case was heard on the master's report including the evidence reported therein, there was no evidence before the court on which it could pass on the value of the good will, and, it appearing that the increase of $5,000 must have been in part due to the valuation of the good will, of which there was no evidence, the decree must be reversed.

Appeal from Superior Court, Hampden County.

Bill by Frank E. Griffith against Thomas Kirley and another, praying for the dissolution of a partnership and the appointment of a receiver. From a decree for plaintiff, J. E. Kirley and another, as administrators of Thomas Kirley, deceased, appeal. Reversed.

simply took possession of some of the personal property. He does not seem to have had any authority to deal with the real estate. He therefore could make no sale of the firm property as a going concern. The good will was apparently not attached to that portion of the personal property of which the receiver took possession. Upon the question whether Kirley should be charged with the value of the good will the master finds the following facts:

"It appeared that in 1895 the plaintiff, Frank E. Griffith, and his brother, the defendant Richard E. Griffith, agreed with the defendant Thomas Kirley to enter into a partnership. The defendant Kirley then owned certain real estate in Chicopee, used as a farm and a fertilizer factory, and there he carried on also a butchering business and dealt in tallow, bones, grease, and hides. It was agreed that the said Frank E. Griffith and Richard E. Griffith should pay five thousand dollars ($5,000) to said Kirley for a half interest in the real and personal property used in the above-mentioned business and the good will of the business. This $5,000 was payable, $1,000 in cash, and the balance in annual installments of $1,000, with interest. By the terms of this agreement, which was wholly oral, the defendant Kirley was to receive onehalf the profits of the business, and the plaintiff Frank E. Griffith, and the defendant Richard E. Griffith, were each to receive onefourth. To make this division equitable, as the Griffiths were putting in the time of two men and Kirley only his own time, it was agreed that the Griffiths should be allowed wages for Frank E. Griffith's services, and that the services of Richard E. Griffith should offset the services of Kirley. The business was to be carried on under the name of Thomas Kirley & Co. The $1,000, as above agreed, was paid by the Griffiths, $500 in cash October 7, 1895, and the balance in a note, dated October 26, 1895, which was subsequently paid by them, with interest. Some six months after the beginning of the partnership, a bond for a deed was given by in which he bound himself to convey to them Kirley to Richard E. and Frank E. Griffith, one undivided half interest in the real estate, above mentioned, upon the payment of $5,000, as above set forth; and at the same time R. E. Griffith and F. E. Griffith signed a

HAMMOND, J. The main question is whether the estate of Kirley, who has died since the beginning of this suit, should be charged with the value of the good will of the partnership business. The master has found that he should be thus charged, unless by operation of law the good will passed to the receiver. It seems plain from the report of the master and the evidence of the receiver that the receiver did not undertake to do anything with the real estate. He

each and every year until the whole sum is paid, with interest, payable annually.' A payment of $1,000 was indorsed upon the note as of the time of its date. * * I find that this bond for a deed and this note were parts of one transaction, but that they did not purport to state all the terms of the agreement between the parties, and that the consideration for the $5,000 note included a half interest in the personal property and the good will of the business, and that the bond and note were with this intention dated back to the time of the beginning of the partner

ship. The partnership began September 1, 1895, and continued until May 5, 1902, when it was terminated by the acts of Kirley, who made a deed of the real estate and a bill of sale of the personal property of the firm to the defendant Martin L. Barnes. Barnes immediately took possession of the real and personal property and ejected the Griffiths from the real estate. Thereupon the bill of complaint in this suit was brought, and a receiver was appointed, who took possession of the partnership property, as pointed out by the defendant Kirley. The receiver has sold this property, collected the bills due the partnership, and paid its debts, and has a balance in his hands to be divided between the partners in accordance with the decree of the court in this case. Said deed and bill of sale from Kirley to Barnes were without consideration. Said Barnes was merely a secret agent of Thomas Kirley, and Kirley kept on uninterruptedly with the business formerly of the firm, and the business was not interrupted by the receivership, as Kirley purchased the personal property of the firm from the receiver."

In the final adjustment of the accounts the master has charged the Griffiths with the balance due upon the $5,000 note. Although the title to the real estate was in Kirley, yet the master rightly ruled that in equity it should be regarded as partnership property. Here, then, is a case where the original | proprietor of the business has sold one-half of all the property used therein, including the good will, to two persons, as a part of au agreement to carry on the business as partners. The business is then carried on by them for several years, when the original proprietor dissolves the partnership by a pretended sale of the real and personal estate belonging to the firm to a secret agent through whom without interruption he carries on the business for himself alone at the same place, excluding his former partners from any participation therein. It is plain from the facts found by the master that a connection had been established between the firm and its customers, of such a nature as to lead to the probability that at least some of the old customers would continue to trade with the successor of the firm; and, the nature of the business being such as to render the procurement of a proper site a matter of some difficulty, it fairly may be inferred that the chance of maintaining this connection, as well as of acquiring new customers, depended to a considerable extent upon the possession of the real estate and fixtures of the old firm. In other words, it is manifest that there was a good will, and that it was attached to the real estate and fixtures. See Moore v. Rawson, 185 Mass. 264, 70 N. E. 64.

It is unnecessary to cite authorities in support of the proposition that upon a bill to wind up the affairs of a partnership it is the right of either of the partners to have

the property sold so as to obtain the benefit of the sale of the good will. In the case before us, the defendant, as before stated, has taken exclusive possession of the firm property to which the good will is attached, and is carrying on the business exactly as though he were the purchaser of it. Under these circumstances the court may regard the defendant, so far as respects the good will, as though he had purchased under an order of the court for the sale of the property and good will, and therefore that he should be charged with the value of the good will. It is well, however, to see what is the nature of this good will. The law upon this subject has been recently discussed by this court in Hutchinson v. Nay, 183 Mass. 355, 67 N. E. 601, and 187 Mass. 262, 72 N. E. 974, 68 L. R. A. 186, and we do not deem it necessary to do much more than to refer to that case and the cases therein cited. It is sufficient to say that, where the sale of partnership property is made, not by the owner of the property, but by a decree of the court, the general rule is that there is no implied covenant on the part of either partner that he will not solicit trade from the former customers of the firm; but, on the contrary, either of the members of the old firm stands with reference to a purchaser at such a sale as though the partnership had never existed. As stated by Loring, J., in Hutchinson v. Nay, 187 Mass. 262, 266, 72 N. E. 974, 68 L. R. A. 186, such a sale "is to be conducted on the footing that [either] partner is at liberty to enter on a competing business and to solicit trade from the customers of the old firm." There is no covenant express or implied upon the part of either partner. Under such a sale the good will which has been sold "is nothing more than the probability that the old customers will resort to the old place." Lord Eldon, in Cruttwell v. Lye, 17 Ves. 335, 346. To hold otherwise would be to hamper a man in his future action as to his lawful business in a matter in which he has made no covenant, and would be wholly unreasonable. See a good collection of the cases in a monographic note found in 96 Am. St. Rep. 610, et seq.

2. Several exceptions were taken by the plaintiff to the master's report. All are now immaterial except the seventh, in which the plaintiff complains that although the master found that "Kirley should stand charged with the good will of the business 'unless the good will passed by operation of law to the receiver.'" he has not valued the good will or otherwise debited the same to Kirley or credited the same to the plaintiff; the plaintiff insisting that the good will did not pass to the receiver, and that Kirley was chargeable therefor. The case was heard upon the master's report, including the evidence therein stated, and the court found thereon that "the value of the real estate, tools, and machinery, not turned over, and

retained by Kirley, together with the good will of the business, that is the plant, etc., as a going concern, was $11,000 in lieu of $6,000, as found by the master." With this modification, the rulings and findings of the master were adopted. Upon recurring to the master's report it will be seen that the sum of $6,000 named in the decree was the valuation by him of the "real estate, tools, and machinery not turned over to the receiver," and did not include the value of the good will. The decree therefore shows that the court found that the good will did not pass to the receiver, and that, as contended by the plain. tiff in his seventh exception, Kirley should be charged with it. Having gone so far, the court proceeded upon the facts and evidence reported by the master to find the value of the plant including the good will, and came to the conclusion that it amounted to the sum of $11,000. It does not appear whether or not this increase of $5,000 was due solely to the valuation of the good will. It is strongly contended by the appellants, the administrators of the estate of Kirley, that the court upon the hearing could not properly pass upon this question of value, and that in any event the evidence does not warrant a finding of so large a sum.

The case was sent to the master "to hear the parties, to examine their vouchers and evidence, and make report of the facts thereof and such portions of the evidence as either of the parties to said case may request" to the court. The master reports certain findings, and the evidence bearing upon some of them, but he has made no finding upon the value of the good will; and, while some of the evidence reported by him may be material upon that question, still it is not reported for that purpose, and it does not appear what if any evidence was before him upon that question. The decree recites that the case was heard by the court upon the master's report, including the "evidence reported therein." The master not having made any finding upon the question of the value of the good will, and not having reported the evidence upon that subject, it is plain that the court could not properly pass upon that question as the case then stood. It does not appear that the parties ever have been heard upon that question. The sum of $11,000 found by the court includes the good will; but, inasmuch as there is no way of ascertaining what part of this sum is for the good will, and what part is for the tangible property, the decree should be reversed as to that part which states the valuation of the property and good will to be $11,000, and states the account upon that theory and the parties are to be further heard, either by the master or by the court, as may seem best to the court, as to the value of the good will.

The value of the tangible property may be settled by the testimony already reported by the master. So ordered.

(189 Mass. 568)

TAYLOR v. FINNIGAN. (Supreme_Judicial Coart of Massachusetts. Worcester. Dec. 4, 1905.)

1. LANDLORD AND TENANT-LEASES-CONSTRUCTION-IMPLIED COVENANT.

A lease of a theater building does not imply a warranty that the building leased is fitted for a theater, or for any particular use, and the lessee may occupy the same for the pursuit of any lawful business.

2. SAME-ACTIONS FOR RENT-SET-OFF.

Where a lease of a theater building contains no covenant requiring the lessor to provide adequate facilities for entrance and exit, the lessee, in an action for rent, cannot, in the absence of an interruption by the lessor of his peaceful possession, recoup damages suffered by reason of an order of a building inspector requiring the lessee to provide the premises with additional means of egress for the use of occupants in case of fire or panic, in accordance with Rev. Laws, c. 104, § 36.

3. SAME-LIABILITY FOR RENT.

Where a tenant remains in occupation of the demised estate, his obligation to pay rent is absolute, except so far as it may be suspended by a breach by the lessor of the covenant of quiet enjoyment.

4. SAME-CONSTRUCTIVE EVICTION.

Where the lessor of a theater does not engage to make even ordinary repairs, or to maintain the property in suitable condition for use as it exists at the date of the lease, he is under no obligation to comply with an order of the building inspector, served on the tenant, requiring the latter to provide the premises with additional means of egress for use in case of fire or panic, in compliance with Rev. Laws, c. 104, § 36, and his failure to do so does not constitute a breach of the covenant for quiet enjoyment. 5. SAME.

To constitute a constructive eviction, such as to suspend the payment of rent during its continuance, it must affirmatively appear that by his intentional and wrongful act the landlord has deprived the tenant of the beneficial use and enjoyment of the whole, or a part of the leasehold.

6. SAME.

Where a lessee does not abandon the premises, but remains in possession, a constructive eviction by the landlord is no defense to a suit for rent.

7. EVIDENCE - SUBSEQUENT PAROL AGREE

MENT.

An oral modification of a lease, consisting of a promise by the landlord to provide additional means of egress from the demised premises, so as to make them comply with Rev. Laws. c. 104, § 36, is, if it was not contemplated by the parties at the date of the lease, and formed no inducement for its execution by the lessee, and if founded upon a good consideration, valid and enforceable.

8. SAME PROMISE TO REPAIR BY LANDLORDMAKING OF REPAIRS BY TENANT.

Where a lessor of a theater promises, by a valid contract modifying the lease, to provide additional means of egress for the premises, so as to make them comply with Rev. Laws, c. 104, § 36, and the lessee, either with or, after reasonable notice, without the assent of the lessor, makes the contemplated improvements, he may recover from the lessor the expense so incurred.

9. SAME-IMPROVEMENTS-CONSIDERATION FOR PROMISE-BENEFIT TO PROMISOR.

The benefit to the leasehold estate for the remainder of the term is sufficient to support the lessor's promise to furnish additional means of egress from the demised building, so as to make it comply with Rev. Laws, c. 104, § 36.

The breach by a lessor of a theater of a covenant to furnish additional means of egress, so as to make the building comply with Rev. Laws, c. 104, § 36, does not, although the premises thereby become unfitted for use as a theater, give to the tenant any right to decline to pay the rent so long as he choses to occupy the premises; but the latter's remedy is by an independent suit for damages or by a counterclaim in an action for rent.

Appeal from Superior Court, Worcester County.

Action for rent by Ransom C. Taylor against Michael J. Finnigan. From a judgment for plaintiff, entered on the sustaining of a demurrer to defendant's answer, defendant appeals. Affirmed.

The declaration counted on a lease by plaintiff to defendant of "the most easterly store in the theater building built by the lessor on the northerly side of Pleasant street in the city and county of Worcester, said store being numbered 17 and 19 upon said Pleasant street, and also the whole upper part of the theater building on the site of the old Baptist Church on Pleasant street, with the right in the lessee to have ingress and egress from the rear of said building." The answer admitted the execution of the lease and defendant's occupancy of the premises, but alleged that the premises were at the time of the execution of the lease solely fitted for use as a theater, and were not adapted for any other purpose; that defendant was evicted, in that the inspector of factories and public buildings delivered to him an order requiring him to provide additional means of egress for the use of occupants in case of fire or panic, as required by Rev. Laws, c. 104, § 36; that a compliance with such order required structural changes in the building outside of the portion of the building covered by the lease, and that it was impossible to comply with the terms of the order within the portion of the building demised to defendant; that immediately after the delivery of the order defendant called upon plaintiff and showed him the same; that thereupon plaintiff orally promised that he would forthwith make the necessary alterations as required by said order; that plaintiff subsequently refused and neglected to comply with the order; and that defendant's license to carry on theatrical performances was suspended. The answer conIcluded with the allegation that "by the matters and things hereinbefore set forth, and by reason of the nonperformance by the plaintiff of his said oral agreement, plaintiff has permitted, suffered, and caused the defendant in effect to be evicted from said premises." Plaintiff demurred to the answer on the grounds "(1) that said answer sets forth no legal or equitable defense to the plaintiff's declaration; (2) that the facts set forth in the defendant's answer do not constitute an eviction of the defendant from the

the

leased premises as therein alleged; (3) that the agreement of the plaintiff set out in the answer, after the execution of the lease, to make certain alterations in the leased premises, and the plaintiff's refusal so to do, if true, constitute no legal or equitable defense to the action for rent."

George S. Taft and Clarence W. Hobbs, Jr., for plaintiff. John R. Thayer, Arthur P. Rugg, Henry H. Thayer, John H. Meagher, and Emil Zaeder, for defendant.

BRALEY, J. By the terms of the lease building leased was fitted for occupation as there was no implied warranty that the a theater, or for any particular use, and the lessee was at liberty to occupy the estate for the pursuit of any lawful business. Dutton v. Gerrish, 9 Cush. 89, 55 Am. Dec. 45; Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006. He chose to conduct a place of amusement for the public, and his occupation and enjoyment of the demised premises has continued without interference by any wrongful act of the plaintiff. Unless the allegations contained in the answer, and which, for the purposes of this case, are admitted by the demurrer to be true, entitle the defendant to be absolutely relieved, he must be held liable for the accrued rent. There having been no tortious entry or physical ouster by the landlord, the tenant claims that by an order issued under the provisions of Rev. Laws, c. 104, §§ 36, 55, to furnish “additional means of egress for the use of occupants in case of fire or panic," as the premises were thereby rendered useless, a constructive eviction was wrought.

No covenant appears in the lease as originally executed requiring the plaintiff to provide adequate facilities of entrance and of exit to the leased property, even though these changes were required of the lessee under Rev. Laws, c. 104, § 36; and, there having been no interruption by him of the peaceable possession and beneficial use of the property by the defendant, the latter cannot, in an action for the rent, recoup damages he may have suffered by reason of the order of the inspector. Bartlett v. Farrington, 120 Mass. 284. Having remained in occupation of the estate, the defendant's obligation under his covenant to pay rent is absolute, except so far as it may have been suspended by a breach on the part of the plaintiff of his covenant that, if the lessee pays the rent, he "shall peaceably hold and enjoy the said rented premises without hindrance or interruption by the said lessor, or any person or persons whomsoever." The lessor, however, did not engage to make even ordinary repairs, or to maintain the property in suitable condition for use and habitation as it was in at the date of the lease; and if the construction of additional exits was called for to make the building safe for the use of those attending the