the children then living and the wife of the grantor, the said trustee was to convey said property, in the former case to the heirs of the said grantor, and in the latter case to the grantor, or to such person or persons as he should nominate. The grantor did not convey during his life, and the case presented is in substance one of conveyance upon the trusts that the grantor shall have the use of the property during his life, with a qualified power of appointment, and that at his death it shall be conveyed to his heirs. We are of opinion that each of the children of the grantor took, under this deed, an equi table interest, which, although it might be defeated by the contingency either of his death before the father or of the father's conveying under the power, was assignable by him, subject to such contingencies. In Putnam v. Story, 132 Mass. 205, a fund was bequeathed upon the trusts, to pay the income to the daughter of the testator during her life, and at her death "the capital sum to be equally divided among the heirs" of the said daughter, "share and share alike." It was held that the children of the daughter took vested interests, which they could assign during the life of their mother. The only material difference between that case and this is that in the case at bar the life-ten. ant had a conditional power of appointment. The resting of their interests in possession might have been defeated by the exercise of this power; but we do not see how the existence of the power affected the nature of the estate of the children, except that it rendered it defeasible. As the power was not executed, their estate has not been defeated, but took effect secundum formam doni, as if the power had not existed. Moore v. Weaver, 16 Gray, 305. We are therefore of opinion that the deed of Silas Fairchild to Frazier conveyed the equitable interest in the Merry place, which the grantor, at the time it was given, had under the deed of trust; and it follows that the plaintiff is entitled to a conveyance of one undivided sixtieth part of it, subject to the payment of any legal charges which the trustee has against the estate. Decree accordingly. (139 Mass. 224)

HUNT V. POOLE.1

(Supreme Judicial Court of Massachusetts. Plymouth. May 11, 1885.)

HUSBAND AND WIFE-AGENCY-STATEMENTS OF

HUSBAND.

1. Where the wife delivers to her husband a check on her own funds in bank, payable to the order of a third person, such third person is not authorized to pay the proceeds of the check to the husband, as such delivery raises no presumption that the wife constituted her husband her agent to collect the check.

2. The statement of the husband to the payee of the check that his wife had given him the check does not bind the wife, nor authorize the payee to pay the proceeds to the husband.

Exceptions from superior court, Plymouth county; GARDNER, Judge.

1 This case, filed May 11, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

Action by Nettie W. Hunt against Benjamin F. Poole for $1,424.14 had and received by defendant to plaintiff's use. It appeared that on December 18, 1882, plain. tiff drew her check for the above amount, payable to defendant's order, and delivered the same to her husband, Charles Hunt, who delivered it to defendant. Defendant drew the money on it, and gave his own check for the amount to plaintiff's husband. Plaintiff had lent her husband $3,000 to use in his business, and the check for $1,424.14 was drawn on money deposited by her husband to her credit out of the proceeds of his business. Plaintiff did not expressly authorize her husband to receive the money on the check, and there was no evidence that she knew he had done so till several days afterwards. She then demanded the money of defendant. Defendant requested the following rulings: "(1) If the money sued for, or any part thereof, was money earned by the husband of the plaintiff in his business, and had become mixed by the plaintiff with money belonging to her, so that the amount thereof cannot be ascertained, she is not entitled to recover. (2) If the money for which the check was drawn was the separate property of the wife, and she gave the check to her husband, then, in the absence of other evidence, it and the proceeds thereof became the property of the husband, and he could use it as his own. (3) If the money was hers, and the check and proceeds thereof were not given to him for his own disposal, and the check was given by the plaintiff to the husband without notice to the defendant, then the husband was the agent of the wife to collect the check, and, if the defendant paid the amount of the check to the husband before notice or demand, he is not responsible to the plaintiff. (4) If the wife made the check payable to the defendant's order, and gave it to her husband without any notice or special instruction to the defendant to deliver the proceeds thereof to her alone, and on her personal receipt, and he had no notice that the money was the separate estate of the wife, or that her husband was not authorized to receive it, and the plaintiff and the husband were living together as man and wife, then payment of the check to the husband would discharge the defendant's liability for the money to the plaintiff. (5) If the defendant paid the check to the plaintiff's husband, to whom the plaintiff had given it, or upon his order, in good faith, before notice from the plaintiff that it was her separate property, or that her husband was not authorized to receive it, he is not liable to the plaintiff." The first, fourth, and fifth rulings were given. To the secoud the judge added: "If the word gave' means 'gave as a gift,' then I give the ruling as prayed for. If the word 'gave' means no more than 'delivered,' then I refuse to give it. The third was refused. Defendant excepted to the last three rulings, and to the modifications of those requested by him. The judge also charged: "(1) The mere delivery by the plaintiff to her husband of a check upon funds which were the separate property of the plain. tiff, deposited by her in her own name in a

saw defendant there, and sold goods to him for the firm, not knowing that he was only a clerk. Held, that defendant was liable for the price of the goods.

Exceptions from superior court, Suffolk County: BRIGHAM, Judge.

Action on contract by Charles H. Bartlett and others against George J. Ray. mond for goods sold and delivered to the firm of George J. Raymond & Co. The evidence showed that from 1879 to July 24, 1882, the defendant had carried on business at a shop on Tremont row, in Boston, under the firm name and style of George J. Raymond & Co. On July 24, 1882, he was adjudged insolvent. Afterwards one John G. Stewart, Jr., put a stock of goods into the same shop, and carried on business under the same firm name and style, of George J. Raymond & Co. He hired the defendant as a clerk, and the defendant had no further interest in the business. The plaintiffs had never dealt with the firm of George J. Raymond & Co. until after Stewart had commenced to do business under that firm name at that shop, and there was no evidence that they had any actual knowledge or notice of the defendant or his business history, or of Stewart or the defendant's relations to him, before the transactions out of which this alleged cause of action arose. One of the plaintiffs went into this shop to sell goods. He found the defendant there, and had all his talk with him, and sold the bill of goods, charging them to George J. Raymond & Co. He did not make any inquiries as to who constituted the firm of George J. Raymond & Co. The judge instructed the jury that, "if George J. Raymond, at a shop bearing upon it the sign George J. Raymond & Co., purchased of the plaintiffs the goods described, notwithstanding it was a fact that at that time and during all the time of the delivery of said goods all the business of that shop was owned and conducted by John G. Stewart, but under the name of George J. Raymond & Co., and George J. Raymond was a clerk only of said Stewart, and so acted in the purchase of said goods, George J. Raymond would be liable in this action for the price of said goods, although the same may have been charged in the plaintiffs' books and delivered to George J. Raymond & Co., unless he disclosed to the plaintiffs, or they had otherwise notice or knowledge, that be was a clerk only in said shop, and that said Stewart was the exclusive owner and conductor of the business there." The jury returned a verdict for the plaintiffs. Defendant excepts. Exceptions overruled. W. F. Kimball, for plaintiffs. R. I. Burbank and R. Lund, for defendant.

HOLMES, J. The defendant not only suffered his name to be used as part of the firm name, but made the bargain for the goods in person, and in the shop bearing the firm name upon its sign. The plaintiffs had no notice that he was not interested in the business. They seem to have known the firm name, and under the instruction excepted to we think the jury must have found that they also knew the name of Raymond, with whom they dealt.

Certainly it does not appear from the bill of exceptions that they did not know his name. Without inquiring whether all these circumstances are necessary to the defendant's liability, we are of opinion that he is liable upon the facts stated. Young v. Axtell, cited 2 H. Bl. 242; Guidon v. Robson, 2 Camp. 302; Poillon v. Secor, 61 N. Y. 456. The question is not whether another defendant should have been joined, but whether the defendant was bound by the contract.

We understand the defendant to abandon the suggestion that the plaintiffs were affected with constructive notice of the proceedings against him in insolvency, and that this must be taken into account in determining whether they knew that he was not dealing with them in his own business. There was no evidence that they bad actual knowledge. Exceptions overruled.

(139 Mass. 283)

BOWDITCH et al. v. CHICKERING et al.1 (Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1885.)

LANDLORD AND TENANT-TAXES-GIFT.

A lease provided that the lessee should pay to the lessor all taxes assessed on the property during the term, which was ten years. Three years after the lease began to run the lessor orally agreed that, if the lessee would pay up all rent in arrear, he would assume the taxes, but it was not stated for what length of time he would assume them. The lessor thereupon paid the taxes yearly for five years, and then sued the lessee for the taxes of the fifth year. Held, that the lessor's payment of the taxes of said fifth year did not, under the circumstances, constitute a gift to the lessee, and that he could recover therefor.

Exceptions from superior court, Suffolk county.

Action of contract by William I. Bowditch and Charles P. Bowditch against Charles F. Chickering and George H. Chickering to recover the city taxes assessed for the year 1882 upon a building in the city of Boston. The building was owned by the plaintiffs, and was in possession of defendants under a lease to them for the term of 10 years from October 29, 1874, the lessees to pay $12,000 yearly, in equal monthly payments, "and also all the taxes and water-rates and assessments whatsoever, whether in the nature of taxes now in being or not, except betterments which may be payable for or in respect of the said premises, or any part thereof, during the said term.' The taxes in question had been paid by the plaintiffs, and the defendants had not reimbursed them therefor. The judge directed a verdict for the plaintiffs. Defendants except. Exceptions overruled.

J. B. Warner, for plaintiffs. E. W. Hutchins and H. Wheeler, for defendants.

C. ALLEN, J. The great reliance of the defendants is that the payment by the plaintiffs of the taxes for 1882 is to be treated as a gift. The evidence upon

This case, filed May 9, 1885, is now published by request, with others, in order that the North

eastern Reporter may cover all cases in volume 139, Massachusetts Reports.

which this claim is founded is substantially as follows: The witness Clapp testified that on November 1, 1877, "Bowditch agreed that, if we [the defendants] would pay up the rent that was due, and make payments promptly hereafter, he would assume the taxes himself; that this proposal was not in consequence of any complaint made by the defendants, but voluntary on the part of Bowditch;" and, on cross-examination, “that he did not recollect that Bowditch said anything about the length of time for which he would assume the taxes, but that the witness understood it to be for the remainder of the term." He also testified that thereafter the defendants received no tax-bills, and no claim was made on them for the taxes until the correspondence of December, 1882, and January, 1883. It appeared, that the plaintiffs paid the taxes to the city for all the years from 1877 to 1882, inclusive. This evidence is insufficient to show a contract by the plaintiffs to pay the taxes for any certain length of time in the future after the first year. Irrespectively of any question of consideration, the plaintiffs did not promise to pay the taxes during the remainder of the term, and the promise which was made would have been fulfilled by paying them for a single year. The understanding of the witness Clapp that the plaintiffs would assume the taxes for the remainder of the term is immaterial, and the language to which he testifies does not import any such undertaking, and there is nothing to show that Bowditch so understood it himself, or intended that the witness should so understand it. The correspondence in 1879 also goes far to show, if indeed it is not conclusive upon the point, that the parties did not consider that this agreement was a permanent one, or extended for any fixed length of time in the future. No claim was made by the defendants in their letter of October 10, 1879, that there was any such agreement. We have not, therefore, to deal with the question of the effect of a voluntary payment made by the plaintiffs in pursuance of a distinct understanding between them and the defendants, which was applicable to that very payment. The plaintiffs did not even undertake to pay the taxes for the defendants until they should give notice to the contrary. They were under no duty or obligation to give notice when their voluntary assumption of the payment of the taxes for the defendants would cease. The taxes were laid upon the owners of the property. As between the plaintiffs and the city, the plaintiffs were bound to pay them. By the covenant of the lease, the lessees agreed to pay the taxes, not to the city, but to the lessor. It was not a covenant of indemnity, but a covenant that the lessee would pay to the lessor whatever taxes should, during the term, be assessed upon the premises. A previous payment of the tax by the plaintiffs was not a condition of their right to recover the amount from the lessees. Wilkinson v. Libbey, 1 Allen, 375; Sargent v. Pray, 117 Mass. 267; Amory v. Melvin, 112 Mass. 83; Trinity Church y. Higgins, 48 N. Y. 532. If the plaintiffs had not paid the taxes in question to the

city, there would be no question of their right to recover the amount from the defendants. The agreement of the plaintiffs, whatever extent of time may be given to it, was wholly voluntary on their part, and rested on no consideration. The defendants agreed to do nothing which they were not already bound to do. The plaintiffs could not be held at law or in equity to fulfill a promise of this description. See Weber . Couch, 134 Mass. 26; Lathrop v. Page, 123 Mass. 19; Potter v. Green, 6 Allen, 442; Harriman v. Harriman, 12 Gray, 341; Kidder v. Kidder, 33 Pa. St. 268; In re Campbell's Estate, 7 Pa. St. 100; 1 Smith, Lead. Cas. (7th Amer. Ed.) 444, 464, 469, note to Cumber v. Wane; Metc. Cont. 191, 192. This question has recently undergone great discussion in England, and it has been held in the house of lords that an agreement between a judgment debtor and creditor that, in consideration of the debtor's paying down a part of the judg ment debt and costs, and on condition of his paying the rest by installments, the creditor would not take any proceedings on the judgment, is nudum pactum, and does not prevent the creditor, after the whole principal of the debt and costs have been paid, from enforcing payment of the interest on the judgment. Foakes v. Beer, L. R. 9 App Cas. 605. So, also, in Crowley v. Vitty, 7 Exch. 319, where a lease stipulated for rent at 20 shillings a week, and during the continuance of the tenancy it was verbally agreed between the lessors and the lessee that the latter should hold the premises at the weekly rental of 16 shillings, which was subsequently paid, it was held that there was nothing to bind the lessors to accept the reduced rent, and that the transaction really amounted to nothing more than an indulgence on the part of the landlord, which might be put an end to at any time.

The question, therefore, comes back to this: whether, by the payment of the taxes for 1882 by the plaintiffs to the city, under the circumstances stated, there was evidence of a completed gift of that amount to the defendants. There was no accounting afterwards between the parties which took any notice of this payment. No subsequent mention of it was made between them, until the plaintiff's letter of December 29, 1882, which certainly contains no implication against their right to recover the amount. Nothing passed between the parties afterwards which could convert the payment into a gift, unless it was a gift at the time when made. The defendants took no action upon the faith of it which could raise against the plaintiffs an estoppel, or an equity of which courts can take notice. It was a payment, as has been seen, which the plaintiffs were legally bound to make to the city. They had made no promise to the defendants which covered it. The defendants may well have had a hope, or even an expectation, that the plaintiffs would continue the payments for their benefit. But the trouble with their argument is that they had no contract to that effect, and they got nothing afterwards which would amount to a mutual recognition that the payment should be consid

ered as an executed gift to them. It may well be that a payment made in pursu ance of a distinct understanding between the parties, covering the particular transaction, or even a subsequent understanding to that effect, may take effect as a gift; that it is not necessary for the money to pass through the hands of the donee; and that such a payment is the same, in legal effect, as if the money passed directly through the donee's hands. These questions we need not here specially consider. In the present case the evidence fails to warrant a finding that the possession or custody of the money was conferred on the defendants by the plaintiffs, actually or constructively, or that the payment was made with the intention of perfecting a gift at the time. In these particulars, the case is easily distinguishable from Strong v. Bird, L. R. 18 Eq. 315; Yeomans v. Will. iams, L. R. 1 Eq. 184; and Waller v. Andrews, 3 Mees. & W. 312,-which are much relied on by the defendants. For the reasons stated it becomes unnecessary to consider the other questions argued by the parties Exceptions overruled.

(139 Mass. 290)

BUTCHERS' SLAUGHTERING & MELTING
ASS'N V. CITY OF BOSTON.1
(Supreme Judicial Court of Massachusetts.
Suffolk. May 11, 1885.)
HIGHWAYS-POWER TO LAY OUT-RECORDS AS
EVIDENCE-MAP.

1. Anc. Chart. 127, providing "that the select townsmen of every town have power to lay out [by themselves or others] particular and private ways concerning their own town, " authorized the laying out of town ways as well as private ways; the expression "particular and private ways" being used only to distinguish the ways from county roads authorized by the earlier stat

utes.

street, a way situated in that part of Boston which was formerly the town of Brighton, was a highway or a town way. This was a question of fact. Brighton was formerly a part of the town of Cambridge, and the defendant introduced testimony tending to show that the way in question was laid out by the selectmen of Cambridge in the year 1656. It was admitted by both parties that it had been laid out in some way prior to the year 1690, and had been since an open public

way.

The plaintiff contended that it was a county way, and asked the judge to rule, "as matter of law, that the town way, as embraced in the Massachusetts system of ways, was unknown to the law prior to Prov. St. 1653-94, c. 6, and that all ways opened prior to that date, and thereafter in continuous public use, were public highways and county roads, and not town ways." In our system of public ways, the distinction between "highways," technically so called, and "town ways" or "private ways," consists in the fact that the former are laid out and may be altered or discontinued by the authorities having jurisdiction throughout the county, such as the county court, the court of general sessions, and, in modern times, the county commissioners, while the latter are laid out and may be altered or discontinued by the selectmen, with the approval of the town. In other respects they are alike, and equally parts of the system of public ways. Denham v. Commissioners, 108 Mass. 202; Flagg v. Flagg, 16 Gray, 175; Valentine v. Boston, 22 Pick. 75. This distinction has existed ever since the time of the Colony. In 1639, “the court of that county where such highways are to be made and laid out" was authorized to lay out highways, (Anc. Chart. 126;) and in 1641 a colony ordinance provided "that the select townsmen of every town have power to lay out (by themselves or others) particular and private ways concerning their own town, only so as no

recompense to be given by the judgment of the said selectmen, and one or two chosen by the said selectmen, and one or two chosen by the party, and, if any person shall find himself justly grieved, he may appeal to the next county court of that shire, who shall do justice therein as in other cases. Anc. Chart. 127. The plaintiff contends that this statute authorized the laying out of private ways, but not of town ways. This construction cannot be adopted. The "private way" known to the modern statutes differs from a" town way" only in the fact that the selectmen may assess the whole altering, or discontinuing such way upon or a portion of the damages of laying out,

the individuals for whose use it is laid out or altered, or by whose application it is discontinued. In other respects it is a part of the system of town ways. Flagg v. Flagg, ubi supra. The statute of 1641 does not contemplate such private ways for the benefit of particular individuals, but as ways for the use of the town. It makes no provision for assessing the expenses upon persons who are benefited.