theatrical performances, and such alterations rightfully could be classed as repairs, the plaintiff was under no obligation to make them, as this burden was cast upon the lessee, and a failure to do so did not constitute a breach of the covenant for quiet enjoy. ment. Roth v. Adams, 185 Mass. 341, 70 M. B. 445. To constitute a constructive eviction, which, while it continues, suspends the payment of rent, 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. Royce v. Guggenheim, 106 Mass. 20, 8 Am. Rep. 322; De Witt v. Pierson, 112 Mass. 8, 17 Am. Rep. 58; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415; Mirick v. Hoppin, 118 Mass. 582; Bartlett v. Farrington, ubi supra; Skally v. Shute, 132 Mass. 367; Smith v. McEnany, 170 Mass. 26, 48 N. E. 781, 64 Am. St. Rep. 272.

But the answer does not allege that the action of the inspector of public buildings was induced or incited by the plaintiff, and if, in the exercise of the police power, extraordinary restrictions were imposed upon the use of the property, there was no voluntary, unnecessary act on the part of the landlord that tended to deprive the tenant of the premises and which would bring the case within Kansas Investment Co. v. Carter, 160 Mass. 421, 36 N. E. 63, or Grabenhorst v. Nicodemus, 42 Md. 236. The defendant, moreover, did not abandon the premises, but remained in occupation; and, if the lessor had taken such action, his conduct therefore would have been no defense to a suit for the rent. Boston & Worcester Railroad Co. v. Ripley, 13 Allen, 421; International Trust Co. v. Shumann, 158 Mass. 287, 290, 291, 33 N. E. 509. A further allegation is found that the designated changes could not be made without causing structural alterations outside of that portion of the building covered by the lease, but there is no averment that upon request the plaintiff refused his assent to such repairs being undertaken by the defendant so far as they might be required to enable him to comply with the order. Upon making such a request, if it had been refused, and this action was found to have been taken solely for the purpose of preventing the defendant from realizing the full beneficial use and enjoyment of the estate, whether he could have quitted the premises and treated this refusal as a constructive eviction it is not necessary to decide. See Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Skally v. Shute. ubi supra; Kansas Investment Co. v. Carter, ubi supra; International Trust Co. v. Shumann, ubi supra.

We now come to the verbal agreement by which the plaintiff is said to have engaged to make the alterations. While it may be said that the requirement which supports this promise rests upon a possible statutory liability, which the defendant should have

foreseen and stipulated against, yet if not actually contemplated by the parties at the date of the lease, and hence forming no inducement for its execution by the lessee, he may show such an oral modification. Durkin v. Cobleigh, 156 Mass. 108, 109, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep.

436, Rackemann v. Riverbank Improvement

Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. Rep. 427; Emerson v. Slater, 22 How. 28, 16 L. Ed. 360; Witbeck v. Waine, 16 N. Y. 532. Compare McGlynn v. Brock, 111 Mass. 219; for this agreement, if founded upon a good consideration, would be valid and enforceable. Rich v. Jackson, 4 Bro. Ch. 514; Hastings v. Lovejoy, 140 Mass. 261, 265, 2 N. E. 776, 54 Am. Rep. 462; Thomas v. Barnes, 156 Mass. 581, 31 N. E. 683. See Vass v. Wales, 129 Mass. 38. If, under it, the defendant had gone forward, either with or, after reasonable notice, without the assent of the plaintiff, he could have recovered the expense incurred in adapting the building to meet the demand of the inspector, as the lessor would have been benefited by the enhanced value of the freehold. Myers v. Burns, 35 N. Y. 269; Cornell v. Vanartsdalen, 4 Pa. 364; Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 268. It is equally plain that the benefit to the leasehold estate for the remainder of the term was sufficient to support the promise on the part of the lessor. Hastings v. Lovejoy, ubi supra; Emerson v. Slater, ubi supra. Or it might be said that the lease, as modified by the oral agreement, constituted a substituted contract supported by the original consideration. Thomas v. Barnes, ubi supra.

Under a broad interpretation that the lease as thus amended demised a building to be used for the purposes of a theater, in connection with which the plaintiff covenanted to provide additional means of exit, if called for by the public authorities, a failure to perform the promise does not constitute a defense to this action. When considered as a further covenant, this agreement is strictly analogous to the ordinary undertaking of the landlord to make outside repairs, which is independent of the lessee's obligation to pay the rent reserved; and any neglect by the plaintiff to make the improvements promised, even if, by force of the statute, the premises without them became unfitted for use as a theater, did not, by reason of the breach, so long as the defendant chose to occupy them, give to him any right to decline payment of the rent. Kramer v. Cook. 7 Gray, 550; Leavitt v. Fletcher, 10 Allen, 119, 121; Royce v. Guggenheim, ubi supra; Skally v. Shute, ubi supra. His remedy would be by an independent suit for damages, or, when sued for the rent, by a counterclaim in recoupment, which he has not pleaded. Holbrook v. Young, 108 Mass. 83, 85. See Brown v. Holyoke Water Power Co., 152 Mass. 463, 25 N. E. 966, 23 Am. St. Rep. 844.

Under the pleadings this conclusion follows, even if the defendant has failed to

aver that the building was constructed after the passage of St. 1894, p. 417, c. 382, the provisions of which were made applicable only to buildings thereafter erected for use as a theater; and we are not called upon to decide whether the omission from Rev. Laws, c. 104, 36, of the express words of limitation as to the time of erection found in the original statute, indicates a legislative intention to put all buildings, whenever erected and used in whole or in part for this purpose, on the same footing. Judgment affirmed.

(189 Mass. 563)

BOLAND v. McKOWEN et al. (Supreme Judicial Court of Massachusetts. Bristol. Dec. 1, 1905.) HUSBAND AND WIFE-MORTGAGES-ESTATES BY ENTIRETY.

As St. 1885, p. 679, c. 237, providing that conveyances to husband and wife shall constitute an estate in common, expressly excepts mortgages from its provisions, a note and mortgage executed to husband and wife and their heirs created an estate by the entirety, entitling the wife on surviving her husband to collect the same as against her husband's executor.

Appeal from Superior Court, Bristol County.

Action by Agnes Boland against Catherine McKowen and others, in which Edward J. Boland, Jr., as executor of the estate of Edward J. Boland, deceased, intervened, claiming the property in controversy. From a judgment dismissing claimant's petition, he appeals. Affirmed.

Richard P. Coughlin, for appellant. F. A. Milliken, for appellees.

KNOWLTON, C. J. In 1894 certain real estate was conveyed to Edward J. Boland and Agnes Boland; these persons being husband and wife. In 1902 they conveyed the property to Catherine McKowen and took back from her, on the same day and as a part of the same transaction, a mortgage to secure a part of the purchase money. The mortgage runs to "said Edward J. Boland and Agnes Boland and their heirs," etc., and the note secured by it is payable in like manner to them jointly. Edward J. Boland having deceased, and the note remaining unpaid, the question before us is whether his widow, Agnes Boland, has a right to collect it, or whether the executor of the husband's will, Edward J. Boland, Jr., the present claimant, is entitled to one-half of it. The estate of the husband is ample to pay his debts, so that the rights of creditors are not involved.

At common law a conveyance to two or more persons, without special provisions, created an estate in joint tenancy, unless these persons were husband and wife, in which case it created an estate by entirety, which differs from a joint tenancy in the fact that the tenancy cannot be severed and

the right of the survivor terminated by either party. Shaw v. Hearsey, 5 Mass. 521; Appleton v. Boyd, 7 Mass. 131; Wales v. Coffin, 13 Allen 213; Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462. See, also, Pease v. Whitman, 182 Mass. 363, 65 N. E. 795; McLaughlin v. Rice, 185 Mass. 212, 70 N. E. 52, 102 Am. St. Rep. 339. By St. 1785, p. 554, c. 62, § 4, the common law was changed, so that conveyances to two or more persons were to be interpreted as creating estates in common, unless it clearly appeared from the language that estates in joint tenancy were intended. It was held in the cases above cited that this statute did not apply to mortgages or conveyances to husband and wife. Rev. St. 1836, c. 59, §§ 10, 11, continue this statute in force, with an expressed provision, in accordance with the previous decisions, that it should not "apply to mortgages, nor to devises or conveyances made in trust, or made to husband and wife," and the provision remained without material change until the enactment of St. 1885, p. 679, c. 237. Gen. St. 1860, c. 89, §§ 13, 14; Pub. St. 1882, c. 126, §§ 5, 6. By this last enactment conveyances to husband and wife are included in the provisions in regard to conveyances to other persons, so that conveyances and devises to husband and wife, made since the enactment, do not create estates by entirety unless an intention to create such an estate is expressed in the writing. But in this, as in the former statutes, mortgages are excepted from the provision, and these are left to be governed by the rules of the common law.

In Pray v. Stebbins, ubi supra, and in Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. 430, it was held that the statutes in regard to the separate property and separate rights of married women do not affect the common law in regard to estates by entirety. In Draper v. Jackson, 16 Mass. 480, the court decided, in an elaborate opinion, that a note and mortgage made to husband and wife go to the wife, if she survives her husband, and not to the executor of the husband. As a general proposition, this is the law to-day; for, except St. 1885, p. 679, c. 237, just cited, there is nothing in the statutes in regard to married women which extends or limits their rights, as against their husbands, in reference to property held under deeds or contracts running to them jointly. As at the common law, husband and wife are left incapable of making ordinary contracts with one another. Although this case presents no such question as that upon which the court divided in Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. 430 (see, also, Draper v. Jackson, 16 Mass. 480-486), the discussion in that case recognized tenancies or ownership by entirety in personal property, as well as in real estate. This view

Under Rev. Laws, c. 110, 58, providing that the officers of a corporation shall be liable for its debts "for making or consenting to a dividend if the corporation is or thereby is rendered insolvent to the extent of such dividend,' they are not liable for declaring and paying a dividend, the company not then being insolvent nor actually rendered insolvent thereby, though the dividend be one of several causes of insolvency which results a considerable time thereafter.

2. SAME-CO-OPERATIVE ASSOCIATION-FAILURE TO ESTABLISH SINKING FUND.

Declaring and paying a dividend in good faith by a co-operative association, and without fraud, in violation of Rev. Laws, c. 110,

69, forbidding a distribution of earnings till a certain amount has been appropriated for a sinking fund, does not make the officers of the corporation liable to its creditors; section 58 declaring them so liable "in the following cases, and not otherwise," and this not being one of the enumerated cases.

Appeal from Superior Court, Essex County. Suit by Stearns R. Ellis and others against the French-Canadian Co-operative Association and others. Bill dismissed, and plaintiffs appeal. Affirmed.

Matthew A. Gregg, for appellants. W. J. Bradley and C. H. Rogers, for respondents.

KNOWLTON, C. J. This is a suit in equity brought by creditors of the defendant corporation to enforce an alleged liability of the directors, founded on their declaration and payment of dividends when, according to the averment, the corporation was insolvent, or was thereby rendered insolvent. The suit is brought under the Rev. Laws, c. 110, § 58. This section and the sections immediately following it are intended to cover the whole subject of the liability of officers and stockholders for the debts of corporations which are subject to the provisions of this chapter. It begins with these words: "The officers of a corporation which is subject to the provisions of this chapter shall be jointly and severally liable for its debts and contracts in the following cases and not otherwise." The first mentioned case of liability of the president and directors of a corporation is "for making or consenting to a dividend, if the corporation is or thereby is rendered insolvent, to the extent of such dividend." The master has found that, at the time of the declaration and payment of the several dividends made in this case, the corporation was

not in fact insolvent, and was not thereby rendered insolvent. He found that the payment of dividends did not immediately produce insolvency, either by reducing the assets of the corporation below the amount of its debts or by depriving it of its cash resources needed for the payment of its immediate obligations in such a way as to bring down upon it its creditors in a simultaneous demand for payment of their debts. The master found that making these dividends was one of the causes of the ultimate insolvency of the corporation, and the plaintiffs contend that this finding brings the case within the statute quoted above.

We are of opinion that the master was right in his construction of the statute. The provision was not intended to create a liability for paying a dividend when a corporation is solvent, and remains solvent, after the payment is made. If a corporation which has once paid dividends becomes insolvent at any time afterwards, the payment may be one of the causes from which the insolvency finally results; but, so far as this provision is concerned, there is no violation of law in making a dividend, unless the company is then insolvent or is actually rendered insolvent thereby, even though the dividend may be one of several causes of insolvency which results a considerable time afterwards. The dividends in this case were made in violation of Rev. Laws, c. 110, § 69, which forbids a distribution of earnings in such a corporation “unless at least ten per cent. of the net profits have been appropriated for a contingent or sinking fund, until an amount has accumulated equal to thirty per cent. of its capital stock." Disobedience of this prohibition is not made a ground of liability of the officers to the creditors of a corporation. The section which is quoted does not include this as one of the cases in which the creditors may proceed against officers, and in terms it excludes liability in all cases other than those expressly mentioned. If fraud or any other conceivable misconduct of officers of a corporation would entitle creditors to proceed against them for a remedy outside of this statute, which we do not intimate, we think it plain that the statute covers the whole subject of liability to creditors, as distinguished from liability to the corporation itself, for mere official delinquency. Com. v. Cooley, 10 Pick. 37; Com. v. Rumford Chemical Works, 16 Gray, 231, 232. The master has found that the directors, in their management of the corporation and in making the dividends, acted in good faith, and were free from intentional fraud. Their disregard of this provision of the statute and their failure in other particulars to exercise good judgment in the management of the business does not give the creditors a right to hold them for the debts of the corporation. The evidence is not reported, and there is nothing to indicate that any one of the master's findings of fact is

erroneous.

Decree affirmed.

(189 Mass. 540)

HAFEY V. COMMONWEALTH. (Supreme Judicial Court of Massachusetts. Hampden. Dec. 1, 1905.) HIGHWAYS-INJURIES TO PROPERTY-ASSESSMENT OF Damages-StatUTES.

Rev. Laws, c. 47, § 9, provides that the damages sustained by any person whose property has been taken for, or has been injured by, the construction and alteration of a state highway, shall be determined by the highway commission, and shall be paid by the commonwealth, and that a person who is aggrieved by such de termination, on petition in the superior court, may have such damages determined by a jury. Held, that it was the duty of such commission to assess damages for land taken or injured, without an application by the landowner, and that the board's failure to do so was equivalent to an adjudication that no damages were sustained, entitling the landowner to file a petition for a jury in the superior court.

Exceptions from Superior Court, Hamp den County.

Petition by James J. Hafey against the commonwealth of Massachusetts for the assessment of damages in the construction and alteration of a highway. From an order granting the petition, defendant brings exceptions. Overruled.

J. B. Carroll and W. H. McClintock, for plaintiff. Luther White, for the Commonwealth.

KNOWLTON, C. J. This is a petition for an assessment of damages alleged to have been suffered by reason of the alteration and construction of a road taken charge of by the highway commission as a state highway, under the provisions of Rev. Laws, c. 47, §§ 5, 6. The petition was filed in the superior court, under section 9 of this chapter, and the contention of the respondent is that the court had no jurisdiction, because no application for an assessment had been made to the highway commission, and the commission had made no assessment. It was agreed at the trial "that no damages had been awarded by the highway commission," and if we assume, in accordance with the respondent's contention, that this is equivalent to an agreement that the petitioner did not apply to the commission for an assessment, we come directly to the principal question presented at the argument.

The first part of said section 9 is as follows: "The damages sustained by any person whose property has been taken for, or has been injured by the construction or alteration of such highway, shall be determined by said commission and shall be paid by the commonwealth. A person who is aggrieved by such determination, may, upon a petition filed in the superior court,

• have said damages determined by a jury," etc. Our decision depends upon whether it is the duty of the highway com. mission, at the time of laying out a new

way or after having altered or changed the construction of an existing way, to assess damages for property taken or injured, without an application by persons entitled to damages, or whether they ought not to act, except in cases where damages are formally claimed by a petition. It has often been held by this court that when a board, charged with the duty of assessing damages for land taken or injured, fails to make an assessment, such failure is equivalent to an adjudication that there are no damages. Upon such failure the party aggrieved may apply for a trial by jury. Monagle v. Coun ty Commissioners, 8 Cush. 360-362; Viscardi v. Great Barrington, 174 Mass. 406, 54 N. E. 859; Driscoll v. Taunton, 160 Mass. 486, 36 N. E. 495; Albro v. Fall River, 175 Mass. 590, 56 N. E. 894. The language quoted above from section 9 is very similar in its substantive requirement to the language of Rev. Laws, c. 48, §§ 13, 14, in regard to assessments by county commissioners of damages caused by the laying out, relocation, alteration, or discontinuance of a highway, or by specific repairs upon a highway. In all such cases it is the duty of the county commissioners to assess damages without an application by the landowner. It is true that the language relating to such assessments by county commissioners requires them in terms to make return of the damages. It is possible to found a distinction upon this difference in the language and upon other differences of procedure in the two classes of cases. But the difference between this language in section 9 and that of Rev. Laws, c. 51, § 15, is still greater, for under this latter section damages are to be assessed only when the owner "files his petition for compensation with the mayor and aldermen or selectmen or road commissioners." We think it is better to hold that the statute puts upon the highway commission the duty to take notice of cases in which their action causes damages to landowners, and to make assessments of these damages without waiting for an application. There is no provision in terms for a petition or application by a landowner to the highway commission for an assessment. This implies that the required determination of damages by the commission shall be of its own motion, and that its failure to award damages shall be treated as an adjudication that there are no damages. That the person aggrieved should have an opportunity, under such circumstances, to have his damages assessed by a jury, is in accordance with the intent manifested by the Legislature in St. 1900, p. 224, c. 299, which is embodied in Rev. Laws, c 48, § 109.

Exceptions overruled.