4. SAME-FAILURE TO OBJECT TO CHARGE.

Where a charge is made of such a kind that, according to common experience, a man would naturally repudiate it if unfounded, the fact that it is made, and not repudiated, may be left to the jury to judge from the facts whether the charge is a correct one.

This was an action of contract to recover the price of an engine and fan or blower, which were constructed by the plaintiff, and sent to the defendant, who was building a theater in New York, by the order of one Frederick Tudor, who had a contract with the defendant for heating and ventilating his theater. The question at issue was whether said Tudor was authorized by the defendant to order said goods from the plaintiff on the defendant's account. The defendant in his answer alleged that said articles were included in a contract made by him with said Tudor for heating and ventilating said theater, and that suits had been brought for them by said Tudor, and that he had settled said suits, and thereby paid for them; and he introduced evidence tending to support said allegation. The contract with said Tudor was partly by a written proposal, and completed by terms expressed in oral negotiations; and the evidence was conflicting upon the question whether the articles in suit were included in the terms comprising said contract. Subsequently controversies arose between said Tudor and said defendant, as to the fulfillment of his contract, and suits were brought by said Tudor, in New York city, for the recovery of the sums claimed by him to be due under said contracts. These suits were settled, and there was conflicting evidence as to whether the articles furnished by the plaintiff were embraced in the settlement of these suits. The records of these suits were not produced at the trial. The defendant's counsel asked the court to rule that "if in the settlement made by Mr. Tudor in New York with the agent of Mr. Wallack, a release was drawn excluding the engine and fan in suit, and this release was rejected, and a general release was drawn and signed afterwards, the duty is incumbent on this plaintiff to produce the evidence of what was the subject of this suit, or that the absence of the schedule and the particulars of that claim must be weighed as affecting and discrediting the testimony of Mr. Tudor;" but the court declined so to rule. It appeared that the plaintiff, as soon as he had constructed the machinery for which he sued, packed the same in cases which were distinctly marked, "Lester Wallack, New York City," and they were shipped to Wallack, and received at his theater. The plaintiff also sent the defendant a bill of the same, asking payment, but the defendant made no reply. The presiding justice instructed the jury that they might consider the marking and sending of these cases as testified to, the sending of the bill, the statement of account, and other evidence, with a view of determining whether the circumstances indicated an authority given by the defendant to order on his account.

Hyde, Dickinson & Howe, for plaintiff.

Aug. Russ, for defendant.

HOLMES, J. 1. The evidence that the engine and fan had been embraced in a suit and settlement between Tudor and the defendant seems

to have been admitted as tending to contradict Tudor's testimony in the present case, which, as we understand it, was to the effect that he ordered them in the defendant's name and by his authority, in which case, of course, he would have had no claim. If we are to infer that a

part of the evidence introduced for this purpose was that a release was drawn excluding the engine and fan, that this was rejected by Mr. Wallack, and that a general release was drawn and signed afterwards, this. of course, would tend to show that at that time Mr. Tudor was understood to make a claim in respect of them, and might lead to the inference that they were embraced in his suit. But it could not be said to lead to the latter inference as matter of law, or to make it the plaintiff's duty to produce the record of the Tudor suit. The record was equally accessible to both parties, and, if the inference sought to be established by the defendant was true, would have helped him as much as in the other event it would have helped the plaintiff. Secondary evidence of the contents of the records was put in by both sides without objection. It was for the jury to say what inference, if any, they would draw from the failure to produce a certified copy. See Eldridge v. Hawley, 115 Mass. 410. If the court was called on to select a piece of evidence for comment at all, which seems to have been competent only by way of contradicting a witness, the instructions given seem to be entirely cor

rect.

We

2. The fact that the engine and fan were shipped at once to the defendant, distinctly marked with his address, was properly left to the consideration of the jury, in connection with the other circumstances of the repeated sending of bills to him, and the letter demanding payment, and the drafts, coupled with the fact that the defendant made no reply. do not say that the marking of the cases alone would have been evidence against the defendant, and we readily admit that it is not every charge, however expressly made, that calls for an answer. Percy v. Bibber, 134 Mass. 404; Com. v. Eastman, 1 Cush. 189, 215; Com. v. Harvey, 1 Gray, 487, 489; Com. v. Kenney, 12 Metc. 235-237. But when a charge is of such a kind that, according to common experience, a man would naturally repudiate it if unfounded, the fact that it was made and not repudiated may be left to the jury. We cannot say that it might not have been found properly that, if the defendant had denied Tudor's authority to charge him with the machinery, he would naturally have written to the plaintiff that he was sending his bills to the wrong man, and must look to Tudor, (Com. v. Kenney, Com. v. Harvey, ubi supra; Hayes v. Kelley, 116 Mass. 300;) and this evidence having been admitted, as it was, without objection, all the circumstances, including the marking of the cases, were to be considered by the jury. Exceptions overruled.

(141 Mass. 307)

(Suffolk, ss.)

In re OSBORNE, Petitioner.

Filed March 1, 1886.

WITNESS-COMPELLING ATTENDANCE BEFORE COMMITTEE OF CITY COUNCIL.
The supreme court, or a justice thereof, will not issue an order compelling
the attendance of a witness upon the sessions of a committee of a city council
R. M. Morse, Jr., for petitioner.

Augustus Russ and Seth J. Thomas, for George A. Wilson.

MORTON, C. J. It appears by public events, of which the court may take judicial notice, and by admissions of the counsel at the bar, that since this case was commenced such changes have taken place in the state of things that the principal questions argued have become little more than mere moot questions which have no practical bearing upon the decision of the case. The petition is brought under the statute of 1883, c. 195, by the chairman of a special committee of the common council of Boston for the year 1885. This committee was appointed under an order of the common council, passed June 4, 1885, which is as follows: "Ordered, that a special committee of five (5) members be appointed by the chair to investigate and report to the counsel all the facts relating to the recent purchase by the water board of two pieces of land on Fisher hill, in Brookline, for the extension of the high-service system."

The common council of 1885 has ceased to exist, and its committee has no further power to conduct any investigation. But if this is not an insuperable obstacle in the way of maintaining this petition, there are other facts which show that the prayer of the petitioner should not be granted. The members of the water board, whose conduct was to be investigated, have been removed from office, and the city has brought a suit against Wilson and William A. Simmons to recover money alleged to have been fraudulently obtained by them in the purchase and sale of the two pieces of land on Fisher hill. The only object which would be accomplished by a further investigation is to procure evidence to be used in this suit. The statute of 1883 leaves it entirely to the discretion of the justice to whom the application is made whether he shall issue an order compelling the witness to testify. In this case, the justice to whom the petition was presented, has reserved, not merely the question of the constitutionality of the statute, but the whole question whether in the discretion of the court Wilson should be compelled to testify. If we assume, in favor of the petitioner, that the statute is constitutional and applicable to the case, yet we are clearly of opinion that, as the case now stands, it would not be the exercise of a wise or just discretion to compel the witness to testify. He would thus be compelled to disclose in advance his defense, and to furnish evidence against himself to be used in a suit against him. In that suit the city may file interrogatories to the defendants or examine them as witnesses, but it would be unjust to Wilson, and giving the city an unfair advantage, to compel him to appear and testify before a committee representing the plaintiff in that suit.

Without considering the other questions raised in the case, we are of opinion that, in the exercise of the discretion of the court or of any justice, the prayer of the petitioner ought not to be granted. Petition dismissed.

(141 Mass. 231)

(Suffolk, ss.)

ROBERTSON v. COLEMAN and others.

Filed February 26, 1886.

1. NAME-IDENTIFICATION OF PERSON.

The name of a person is a verbal designation by which he is known; but the visible presence of the person affords surer means of identifying him than his

name.

2. CHECK-PAYABLE TO WRONG PARTY.

The defendants gave to A. a check, payable to his order, to pay for the proceeds of a team sold for A., and delivered to them to be sold at auction. A. indorsed the check to B., and B. presented it for payment, when the bank refused payment, by order of defendants, on the ground that A. was not the party he represented himself to be. Held, that the check was payable to B. This was an action of contract to recover the amount of a bank-check for $91.08, signed by the defendants, dated March 31, 1883, and payable to the order of Charles Barney. The following facts appeared at the trial: On the twenty-seventh day of March, 1883, a young man went to the Metropolitan Hotel, in Boston, of which the plaintiff was the proprietor, and registered his name as Charles Barney. On that or the next day he took to the place of business of the defendants, who sold property as auctioneers, a team, of which he represented himself to be the owner, and which he desired them to sell on his account. He gave his name there as Charles Barney. In reply to an inquiry regarding him, they received a message by telegraph that Charles Barney, of Swanzey, was a responsible and reliable man. Believing him to be Charles Barney, of Swanzey, they sold the team for him, and three days afterwards gave him, in payment of the money received, the check declared on. On the thirty-first day of the same March, he left the plaintiff's hotel, where he had been staying in the mean time under the mame of Charles Barney, and before going he gave the check to the plaintiff in payment of his board bill of $16.75, and received the balance of its amount in cash from the plaintiff. At the same time he indorsed it in blank with the name of Charles Barney. It turned out that Charles Barney was not his true name, and there was no evidence that he had ever gone by that name before registering at the plaintiff's hotel. The defendants discovered that he had stolen the team which he left with them, and, by their order, the bank upon which the check was drawn, refused to pay it. It was in evidence that there was a person in existence by the name of Charles Barney, of Swanzey. It appeared that the plaintiff made no further inquiry as to the identity of the payee than for information which was founded upon the representations of his said lodger. Upon these facts the court, against the defendants' objection, and subject to their exception, instructed the jury as follows:

"If the person who took the team to the defendants' place of business left it there under the name of Charles Barney, and the defendants in receiving it dealt

with him as Charles Barney, and sold the team for him, and three days afterwards gave him the check in the belief that he was Charles Barney, of Swanzey, and was the owner of the team, and said person had in the mean time been boarding at the plaintiff's hotel under that name, and had gone by that name while at said hotel, the plaintiff, upon the receipt from him of said check in good fath, for a valuable consideration, with his indorsement upon it, acquired a good title to it as against the defendants.' "9

A verdict was returned for the plaintiff, and at the request of the defendants the case is reported to the supreme judicial court for its opinion upon the questions of law involved. If the instruction was correct, judgment is to be entered upon the verdict. Otherwise such order is to be made as law and justice may require.

C. F. Kittredge, for plaintiff.

I. J. Thomas, for defendants.

FIELD, J. The name of a person is the verbal designation by which he is known, but the visible presence of the person affords surer means of identifying him than his name. The defendants for a valuable consideration gave the check to a person who said his name was Charles Barney, and whose name they believed to be Charles Barney, and they made it payable to the order of Charles Barney, intending thereby the person to whom they gave the check. The plaintiff received this check for a valuable consideration, in good faith, from the same person, whom he believed to be Charles Barney, and who indorsed the check by that name. It appears that the defendants thought the person to whom they gave the check was Charles Barney, of Swanzey, a person in existence; but it does not appear that they thought so from any representations made by the person to whom they gave the check, although this perhaps is immaterial. It is clear from these facts that, although the defendants may have been mistaken in the sort of man, the person they dealt with was the person intended by them as the payee of the check, designated by the name he was called in the transaction, and that his indorsement of it was the indorsement of the payee of the check by that name. The contract of the defendants was to pay the amount of the check to this person or his order, and he has ordered it paid to the plaintiff. If this person obtained the check from the defendants by fraudulent representations, the plaintiff took it in good faith and for value. See Samuel v. Cheney, 135 Mass. 278; Edmunds v. Merchants' Transp. Co., Id. 283. Judgment on the verdict.

(141 Mass. 126)

FRAZER v. BIGELOW CARPET Co.

(Suffolk, ss.)
Filed February 24, 1886.
DAMAGES-TORT-INTEREST ALLOWED.

Where, in an action of tort, damages are found to be due the plaintiff, if the plaintiff has been prevented from having his damages ascertained, the court will award interest on the amount finally found due, from the time when his cause of action first accrued; and this is so even if the delay was occasioned by the plaintiff's not bringing his action, when he presented his claim, and was informed that the defendant denied the liability. Under such circumstances the most prudent and economical thing for both parties was for the plaintiff to postpone his suit until the test case had settled the question.