and that the consideration of the note was not the amount claimed in the second count, but was for the services rendered in the criminal action.

The rulings of the Chief Justice were therefore correct.

Exceptions overruled.

(190 Mass. 355)

COMMONWEALTH v. CALDWELL. (Supreme Judicial Court of Massachusetts. Essex. Feb. 28, 1906.)

1. HAWKERS AND PEDDLERS-LICENSING-CONSTRUCTION OF STATUTE "PROVISIONS."

Tea and coffee are not provisions, within the meaning of Rev. Laws, c. 65, §§ 15, 16, prohibiting peddling without license, but excepting the sale of provisions from the operation of the

act.

2. COMMERCE-REGULATION BY STATES-PEDDLERS' LICENSE LAW.

Rev. Laws, c. 65, §§ 15, 16, permitting the sale by peddlers of agricultural products of the United States without a license, but forbidding unlicensed sales of agricultural products of other countries, are a regulation of commerce in conflict with Const. U. S. art. 1, § 8, providing that Congress shall have the power to regulate commerce of foreign nations and among the several states.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, § 107.]

Exceptions from Superior Court, Essex County; Francis A. Gaskell, Judge.

One Caldwell was convicted of peddling without a license, and brings exceptions. Exceptions sustained.

W. Scott Peters, Dist. Atty., for the Commonwealth. Henry T. Lummis and Chas. N. Barney, for defendant.

KNOWLTON, C. J. The defendant was prosecuted, under Rev. Laws, c. 65, § 16, for peddling tea and coffee without a license. Section 15 of this chapter permits the sale of provisions without a license, and the first question in the case is whether tea and coffee are provisions, within the meaning of this section. We think that they are not. The word "provisions" as here used has been held to mean, "food, victuals, fare and provender." Com. v. Lutton, 157 Mass. 392, 32 N. E. 348; Com. v. Reid, 175 Mass. 325, 56 N. E. 617. Tea and coffee are not used as food, in the form in which they are sold by shopkeepers. They are used to make decoctions, to be taken as a beverage for their agreeable taste or their stimulating effect. In this respect they are not very different from wine and.beer, which in many countries are in common use at meals. We are of opinion that they are not included in the term "provisions," in its ordinary sense, or in the meaning of this statute.

The next question is whether the statute is a regulation of commerce, in violation of article 1, § 8, of the Constitution of the United States, which provides that: "The Congress shall have power * to regu

late commerce with foreign nations, and

among the several states, and with the Indian tribes." The statute permits the sale by peddlers of agricultural products of the United States without a license, while it forbids unlicensed sales of agricultural products of other countries. Many argicultural products are articles of commerce, and in this respect there is, in the statute, a discrimination in favor of articles produced in the United States. It has been held many times that such an attempt at discrimination by a state is of no effect. Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347; Cook v. Pennsylvania, 97 U. S. 566, 24 L. Ed. 1015; Guy v. Baltimore, 100 U. S. 434, 25 L. Ed. 743; Brown v. Maryland, 12 Wheat (U. S.) 419, 6 L. Ed. 678; Com. v. Petranich, 183 Mass. 217, 66 N. E. 807; Higgins v. Three Hundred Casks of Lime, 130 Mass. 1; State v. Pratt, 59 Vt. 590, 9 Atl. 556; State v. Furbush, 72 Me. 493. The cases enunciating the general doctrine in the Supreme Court of the United States are very numerous, and many of them are cited and reviewed by Mr. Justice Gray, in Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, 39 L. Ed. 430. While in many of them the discrimination was against articles coming from other states, the rule in reference to discrimination against articles of foreign production is the same. In Cook v. Pennsylvania, 97 U. S. 566-573, 24 L. Ed. 1015, Mr. Justice Miller said: "If a tax assessed by a state, injuriously discriminating against the products of a state of the Union, is forbidden by the Constitution, a similar tax against goods imported from a foreign state is equally forbidden." In Guy v. Baltimore, 100 U. S. 434, 439, 25 L. Ed. 743, the general rule is stated by Mr. Justice Harlan as follows: "It must be regarded as settled that no state can, consistently with the federal Constitution, impose upon the products of other states, brought therein for sale or use, or upon citizens, because engaged in the sale therein or the distribution thereto of the products of other states, more onerous public burdens or taxes than it imposes upon the like products of its own territory." In reference to the contention that the general rule should not apply after the imported goods have been mingled with the general mass of property in the state, this is the statement of Mr. Justice Field, in Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347: "The commercial power continues until the commodity has ceased to be a subject of discriminating legislation by reason of its foreign character. That power protects it, even after it has entered the state, from any burden imposed by reason of its foreign origin." We are of opinion that the discrimination in this statute between agricultural products of the United States and agricultural products of other countries, in reference to the requirement of a license to peddle them, renders the statute unconstitutional in this particular.

Other questions were raised by the defendant in regard to the constitutionality of the

Exceptions sustained.

Where a case is submitted on an agreed statement of facts with power on the part of the court to draw inferences, the only question of law on appeal is whether there is any evidence in the agreed facts which warrants the finding.

2. MUNICIPAL

CORPORATIONS-OFFICERS-POLICE BOARD-EMPLOYMENT OF CLERK-SALARY-AUTHORITY OF BOARD TO FIX.

St. 1895, p. 186, c. 187, creates the board of police of the city of Lowell. Section 7 (page 187) authorizes the board to appoint a clerk whose salary shall not be less than $500 per annum. St. 1896, p. 365, c. 415, § 5, provides that heads of the departments shall have power to appoint and discharge subordinates in their respective departments. Held, that the salary of the clerk fixed by the board at $1,800 per annum was binding on the city, unless the validity of the board's act was affected by the action of the council in regard to appropriations.

3. SAME-APPROPRIATIONS FOR SALARIES—AP

PLICATION.

St. 1896, p. 366, c. 415, § 6, provides that the heads of the departments of the Lowell city government shall have the general management of all matters pertaining to their respective departments. Section 7 prohibits the council from taking part in the employment of labor, etc. Section 8 provides that no sum appropriated for a specific purpose shall be expended for any other purpose. The council appropriated $4,700 for the salaries of the police board and clerk, and provided only $1,500 for his yearly salary. It appropriated $127,860 for "salaries and labor of police department," and this appropriation was subsequently increased so that there was a balance of over $1,400 after paying all labor and salaries. The police board had fixed the clerk's salary at $1,800 per annum. Held, that the appropriation for "salaries and labor of police department" could be used to make up the deficiency in the appropriation specially intended for the clerk, and he was entitled to the salary fixed by the board.

Appeal from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Action by one Smith against the city of Lowell. From a judgment for plaintiff, defendant appeals. Affirmed.

James Gilbert Hill, for appellant. Nathan D. Pratt and John Devine, for appellee.

KNOWLTON, C. J. This is an action to recover a balance of salary claimed by the plaintiff as a clerk of the board of police of the city of Lowell. The case was submitted on an agreed statement of facts, which permitted the court to draw such Inferences from the facts as might properly be drawn by a jury. The superior court found for the plaintiff, and from the judgment on the finding the defendant appealed to this court.

On such an appeal, the only question of law open is whether there was any evidence in the agreed facts which would warrant the finding for the plaintiff. Davis v. Harrington, 160 Mass. 278, 35 N. E. 771; Norton v. Brookline, 181 Mass. 360, 63 N. E. 930. The salary of the plaintiff was fixed by the board of police on December 31, 1901, at $1,800 per annum, and he has not been fully paid at that rate. Under St. 1895, p. 186, c. 187, creating this board, the board has power, by the provisions of section 7 (page 187), to appoint a clerk, and impliedly to fix his salary, which, by the terms of the statute, cannot be less then $500 per annum. St. 1896, p. 364, c. 415, is "An act to amend the charter of the city of Lowell," and by section 5 (page 365) of this chapter, "The heads of the several departments and offices shall have power to appoint and employ, and to discharge, all subordinate officers and employés in their respective departments." "The appointment or employ ment of such an officer includes the fixing of his compensation, whether designated as salary or wages, as well as the choice and naming of the appointee." Faulkner V. Sisson, 183 Mass. 524-526, 67 N. E. 669. The board of police has always fixed the salary of the clerk of the board since the office was created, and there is no question that the vote to give the plaintiff a salary of $1,800 per year was binding upon the city, unless its validity is affected by certain action of the city council in regard to appropriations. Under St. 1896, p. 366, c. 415, § 7, and other sections, the city council is prohibited from directly or indirectly taking "part in the employment of labor, the purchase of material, the construction, alteration or repair of any public works or other property, or in the care, custody or management of the same, or, in general, in the expenditure of public money, or in the conduct of the exec utive or administrative business of the city," with certain exceptions immaterial to this case. By section 6 the heads of the several departments are given general charge and management of all matters pertaining to their respective departments, except the

purchase of materials and supplies. Except under St. 1895, p. 187, c. 187, § 6, which deals with the number of patrolmen and the pay of police officers, the city council has nothing directly to do with the management of the police department, or with the expenditure of money in promoting its objects. As was pointed out in Muldoon v. City of Lowell, 178 Mass. 134-138, 59 N. E. 637, the act amending the city charter made very important changes in the method of management of municipal affairs in the city of Lowell, increasing largely the responsibilities of the executive department. But the city council is left in control of the appropriations, and, under section 8 of this act, except in the expenditure for schools, it may block the wheels of municipal action by withholding or limiting appropriations. The language referred to is as follows: "No sum appropriated for a specific purpose shall be expended for another purpose, and no expenditure shall be made and no liability shall be incurred, by or on behalf of the city, until the city council has duly voted an appropriation sufficient to meet such expenditure or liability, together with all prior unpaid liabilities which are payable therefrom, except that, after the expiration of the financial year and before the making of the regular annual appropriations, liabilities payable out of the regular appropriation may be incurred to an amount not exceeding one-sixth of the total appropriation made for similar purposes in the preceding year." The vote of the city council that "The joint committee on appropriations shall determine, in their annual appropriations, the amount to be allowed for clerical assistance," had no effect to fix the salary of the plaintiff, for the city council had no jurisdiction to determine his salary. Its only effect was upon the amount of the appropriation. The appropriation "of $4,700 for salaries of police board and clerk of police board," which was subsequently made, provided only $1,500 for the plaintiff's salary for the year, and, if there were no appropriation out of which his salary could lawfully be paid, the city would not be liable for any more than this sum. But the city council also appropriated "$127,806 for salaries and labor of police department." This was subsequently increased by an additional appropriation of $225, and there were receipts from other departments for services of officers such that there was a balance of $1,470.38 in the appropriation, after paying for all labor and salaries, except the balance of $300 claimed by the plaintiff. The plaintiff's salary was one of the salaries of the police department, and this appropriation was properly applicable to the payment of his salary, as well as any other salary of the department. There was no insufficiency of appropriations that could lawfully be used in paying his salary, as it was fixed by the board of police, and it does not appear that the liability to

him was improperly incurred under section 8. Payment of this salary does not require that a "sum appropriated for a specific purpose shall be expended for another purpose." The language of the appropriation should not be restricted to accomplish a purpose of the city council in regard to a matter which was outside of its province. The details of management and expenditure in the police department were intrusted to the board of police, subject only to the limitation contained in St. 1895, p. 187, c. 187, § 6, and it was irregular for the city council to attempt to dictate in regard to salaries to be paid to particular subordinates. If improper payments were made, the remedy provided by the statute is of another kind. While the statute recognizes the right of the city council to make specific appropriations, it does not contemplate that in these appropriations it shall attempt to interfere with the management of the department, to the extent of stating the sums to be paid as wages or salaries to particular clerks or employés. Without attempting to determine what subdivisions are permissible in making specific appropriations, we are of opinion that the appropriation for "salaries and labor of police department" could lawfully be used to make up a deficiency in the appropriation specially intended for the salary of the clerk of the board. For another case in which this statute has been considered, see Stratton v. City of Lowell, 181 Mass. 511, 63 N. E. 948.

Judgment for the plaintiff.

(190 Mass. 388)

MCMAHON v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1906.)

DEFECTS IN INSTRUC

1. MUNICIPAL CORPORATIONS STREETS PERSONAL INJURIES TIONS QUESTION FOR JURY. In an action for injuries from defects in a walk crossing a street which was undergoing repairs, an instruction that defendant was not liable to a person attempting to cross where no barrier was encountered, if the street was properly protected by barriers at the ends of the part under repair and at the cross-streets, was properly refused as in effect stating that the barriers, if found to exist, were sufficient, while the existence and sufficiency of the barriers were both questions for the jury.

[Ed. Note-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1749.] 2. SAME-CONTRIBUTORY NEGLIGENCE.

In an action for injuries from defects in a cross-walk, an instruction that, if the plaintiff knew that part of the street had been undergoing repair, it was contributory negligence for her to attempt to cross without ascertaining whether the work was completed and the crossing safe, was properly refused, where she testified that she looked before crossing and thought it was all right and the evidence as to the condition of the crossing was in conflict; the question of contributory negligence in the case being for the jury on consideration of all the facts.

Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by Ann McMahon against the city of Boston. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

J. C. Johnston, for plaintiff. Philip Nichols, for defendant.

MORTON, J. This is an action of tort to recover for personal injuries sustained by the plaintiff by reason of an alleged defect in Blue Hill avenue, a public highway in the defendant city. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to give certain rulings that were requested.

The accident occurred on Sunday, June 30, 1901, at about 10 a. m. The plaintiff had been to church and was on her way home. She lived on Quincy street, which crossed Blue Hill avenue at right angles. Blue Hill avenue runs nearly north and south. The church was on the easterly side of the avenue about two blocks north of Quincy street, and her home was on the northerly side of Quincy street, about the same distance westerly of Blue Hill avenue. When she went to church she came down Quincy street, and up the westerly sidewalk of the avenue, crossing opposite the church. Returning, she came down the easterly side'walk till she reached Quincy street, where she attempted to cross. She crossed on a crosswalk of flagging over the easterly part of the street and over the car tracks, but somewhere between the last rail and the westerly sidewalk, fell, and received the injuries complained of. Blue Hill avenue was being repaired and was torn up northerly of Quincy street; but the easterly roadway between the car tracks and the sidewalk had been finished. One question was whether the defendant had put up suitable barriers to warn the public of the condition of the street. The plaintiff testified that on her right, as she crossed (that is, on the northerly side of the crossing), there was no horse, or barrier, that there was none across Quincy street, and that on her left (that is, on the southerly side of the crossing) she did not notice, but did not think there was any barrier. The defendant concedes that the evidence was conflicting on this point, and that there was sufficient testimony to justify the jury in finding that there were no barriers. But it contends that its request, that the defendant was not liable to a person attempting to cross where no barrier was encountered, if the jury found that the street was properly protected by barriers at the two ends of the part under repair and at the cross-streets, should have been given. But to have given the instruction thus requested would have been saying to the jury, in effect, that as a matter of law such barriers, if found to exist, would be sufficient. The question whether there were barriers there, and, if so, whether they were reason

able and proper, was one of fact for the jury, and was left to them under suitable instructions. See Jones v. Collins, 188 Mass. 53, 74 N. E. 295.

*

The other instructions requested related to the plaintiff's due care and her right to recover upon all the evidence. The defendant asked the court to rule that if the plaintiff knew that that part of the street, where she was injured, had been under repair and closed to travel, it was contributory negligence for her to attempt to cross without first ascertaining whether the work had been completed and the crossing was safe, and that, on all the evidence, she could not recover. The fact that the plaintiff knew that the street had been under repair and closed to travel would not, of itself, be conclusive against her right to recover. Norwood v. Somerville, 159 Mass. 105, 33 N. E. 1108; McGuinness v. Worcester. 160 Mass. 272, 35 N. E. 1068. And she testified that "she looked to see before she crossed the street; it was all clear, all right, as she thought; that the east side was completed, and she thought the west side was." It is true that the jury might disbelieve her. But it would have been error to instruct them as matter of law that it would have been contributory negligence or lack of due care on her part to attempt to cross without ascertaining whether the work had been completed and the crossing was safe, if she knew that the street had been closed and undergoing repairs. Whether she was in the exercise of due care depended upon a consideration of all of the circumstances, of which her knowledge that the street was undergoing repairs was one. It may be that there are cases in which the presence or absence of a single fact is so controlling as to be decisive one way or the other on the question of due care. But we do not think that could be said of the plaintiff's neglect in this case, if she did neglect, to ascertain whether the work had been completed and the crossing was safe before she attempted to cross. The evidence as to the condition of the crossing at the westerly end was conflicting. Several witnesses, one of whom was the subforeman of the paving department of the defendant city and inspector of the work of repairing the avenue, and the others police officers, testified that the flagstone crossing had been completed before the accident, and that at no time was there a temporary crossing of paving stones. Other witnesses testlfied that there was a temporary crossing of paving blocks. The plaintiff's testimony left the matter in doubt. If, as the defendant contends she climbed down into the excava tion and stumbled over heaps of material that had been brought or left there, it is clear that she would not be entitled to recover. But it was for the jury, we think, to say what the condition was, and whether, taking it as they found it to be, the plaintiff was in the exercise of due care in attempting to cross. Exceptions overruled.

(190 Mass. 326)

WASSERMAN v. MCDONNELL, (Supreme Judicial Court of Massachusetts. Bristol. Feb. 27, 1906.)

1. FRAUDULENT CONVEYANCES - SALES IN BULK STATUTORY PROVISIONS-APPLICATION.

St. 1903. p. 389, c. 415, prohibiting the sale of merchandise in bulk in fraud of creditors, has no application to a sale of a stock of goods under a duly recorded mortgage of the stock, given for a valuable consideration and free from fraud.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, § 34.] 2. CHATTEL MORTGAGES-PROPERTY COVERED -AFTER-ACQUIRED PROPERTY.

While property acquired after the delivery of a chattel mortgage does not pass to the mortgagee as against attaching creditors and subsequent vendees or mortgagees, yet a provision in such a mortgage that it shall cover after-acquired goods operates as an executory agreement that such goods shall be holden by the mortgagee as security, when acquired by the mortgagor and the mortgagee may take possession of such goods before the rights of third persons intervene without regard to claims of creditors which have not been asserted by an attachment or by seizure upon execution.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, §§ 208, 209.] 3. SAME-FORECLOSURE-RIGHTS OF PURCHASERS.

A sale of goods under a power of sale contained in a chattel mortgage is not invalidated as against a purchaser for value by an irregularity in the execution of the power of sale. 4. SAME-MODES OF FORECLOSURE-STATUTORY REQUIREMENTS.

Rev. Laws, c. 198, §§ 4-7, authorizing the foreclosure of chattel mortgages in a certain manner, requiring, among other things, that the notice of intention to foreclose be recorded, and providing for a redemption from foreclosure, have no relation to a foreclosure under a power of sale contained in a mortgage, and such a sale is not invalidated by the failure to record the notice of foreclosure.

Appeal from Superior Court, Bristol County; Edward P. Pierce, Judge.

Action by David Wasserman against Michael McDonnell. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank Wasserman, for plaintiff. Asa Auger, for defendant.

LATHROP, J. This is an action of tort against a constable for the conversion of certain goods alleged to belong to the plaintiff. In the superior court the case was sent to an auditor, under an agreement of the parties that the findings of fact by the auditor should be final. The auditor found for the plaintiff in the sum of $38.26, with interest from August 4, 1904. On motion of the plaintiff, a justice of the superior court ordered judgment for the plaintiff, and the case is before us on the defendant's appeal. It appears from the auditor's report that ou February 5, 1904, one Holshanetzky owned a stock of dry goods in a shop in New Bedford, and on that day executed and delivered to one Stern a chattel mortgage of said stock, which was duly recorded. The

auditor found that the mortgage was given for the consideration therein named, and was not in fraud of creditors at common law. After giving the mortgage the mortgagor remained in possession of the goods, as he had a right to do under a clause in the mortgage reading as follows: "I am to sell in my usual course of business, the stock in trade covered by this mortgage, and this mortgage shall apply to all future acquired stock that I shall have in my business." The possession of the mortgagor continued until four or five days prior to July 12, 1904, when the mortgagee, through his attorney, gave written notice of foreclosure to the mortgagor and took possession of the property for a breach of the conditions of the mortgage. On July 12th the mortgagee sold the mortgaged property in one lump by public auction. The auctioneer put out a red flag the usual time before the sale, and the fact of the sale was known beforehand in the neighborhood. There was no written advertisement of the sale. There were 10 or 12 persons at the sale, and the auctioneer cried out the goods in the usual manner. The plaintiff made the highest bid, of $875, and the goods were knocked down to him. There were other bids, among them bids of $700 and $800. The mortgagor was present at the sale and a consenting party to all proceedings. The plaintiff paid for the stock and took immediate possession thereof, and remained in undisturbed possession until the taking by the defendant on August 4, 1904. At the time of the sale there were two creditors of the mortgagor other than the mortgagee. One was the landlord of the shop, to whom $10 was due for rent, and the other was Laura Lambert, who on July 8, 1904, had obtained a judgment against Holshanetzky for $15 and costs. On August 4, 1904, the defendant seized a portion of the goods on an execution issued in the above-named suit of Lambert v. Holshanetzky. The defendant removed the goods, and they did not again come into possession of the plaintiff. The auditor found that the sale was conducted properly and in good faith, and that the plaintiff was a bona fide purchaser for value, without notice of any irregularity. 1. The first contention of the defendant is that St. 1903, p. 389, c. 415, applies to a mortgage, and the foreclosure thereof. The act is entitled: "An act to prohibit the sales of merchandise in bulk in fraud of creditors." We are of opinion, however, that this act has no application to the case at bar. The object of the statute was to protect creditors against fraudulent sales. Here no fraud was shown. The mortgage was on six months' time, and was given for a valuable consideration. It does not appear that, when it was given, the mortgator had any creditors except the mortgagee. The mortgage was duly recorded.