to manufacture the "Perfection Nail" at a profit, regardless of whether he remained in its employ; or, if any physical service by him was essential, that there was in fact such continuous service as the contract required, down to the filing of this bill. The contract of 1903 was drawn up by the defendant's treasurer without legal advice, | and its interpretation is not free from difficulty. There is force in the argument of the plaintiff, that what the contract contemplated was, to obtain the inventions which the plaintiff might make and to avoid his active competition. But by its terms it contemplated also his physical services. It recited that the defendant "is desirous that said R. L. Ellery shall remain in their employ." The royalty in excess of $50 per month was to be paid quarterly "as soon after receipt of R. L. Ellery's report of nails shipped and checking of same as convenient." Paragraph 5 expressly stipulated: "R. L. Ellery agrees to remain with the Morley Button Manufacturing Co. on these terms for a period of at least three years. Should he at any time leave the employ of the Morley Manufacturing Co. this agreement is to cease without notice from either party. It is under: stood that this agreement shall stand after said three years, so long as the Morley Co. shall continue to employ R. L. Ellery and continue to manufacture articles invented by said Ellery." From these and other provisions it seems plain, notwithstanding the ambiguity of one isolated clause in paragraph 2, that the agreement contemplated the employment of the plaintiff; and in fact he continued in such employ until January 1, 1906. All the royalties due for that period were paid to him. One of the provisions of the second paragraph was: dered only if and when they would not conflict with his outside business. If there were any doubt as to whether after the execution of the 1906 contract the defendant "continued * * to employ said Ellery" under the 1903 agreement, thereby entitling him to continuing royalties, the construction placed on the earlier agreement by the parties themselves, as manifested by their conduct, plainly was that the 1903 contract ended for all purposes after the term of three years. For more than nine years thereafter the plaintiff made no claim on the defendant for royalties and never asked for any report of the number of "Perfection Nails" which had been sold. During all this interval he was engaged in business on his own account. The master has found that "at the time when the parties signed the agreement of 1906, both understood that there was no subsisting rights or liabilities under the agreement of 1903." In view of our interpretation of the 1903 agreement, it is unnecessary to consider the defences of laches and the statute of limitations. The interlocutory decree confirming the master's report, and the final decree dismissing the plaintiff's bill, must be affirmed with costs; and it is So ordered. (225 Mass. 576) WINSLOW v. NEW ENGLAND CO-OP. SOC. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 12, 1917.) 1. MASTER AND SERVANT 330(3)—ACTION FOR SERVANT'S NEGLIGENCE SUFFICIENCY OF EVIDENCE-"ENGAGED IN ITS BUSINESS.' In an action for the conscious suffering and death of plaintiff's intestate who, when he fell from his motorcycle, and was struck and killed by defendant's automobile, evidence that defendant's manager had instructed an employé to teach another employé to drive the automobile and that the accident occurred while they were returning from dinner and while the other employé was driving under the first employé's instructions, warranted a finding that the accident happened while defendant's servants were engaged in its business within St. 1907, c. 375, § providing for the recovery of damages for death caused by the negligence of corporations or of their servants. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1272; Dec. Dig. 330(3).] "At the end of three years from January 1, 1903, the Morley Button Manufacturing Company, if it shall continue thereafter to employ said Ellery, shall pay Ellery a royalty of at least $50 per month, if it shall manufacture at a fair profit any article invented by Ellery." The master finds that on January 1, 1906, the plaintiff physically left the defendant's employ and never since has done any work for the defendant or performed any duties, similar to those which he had been performing. In January he started measures to form a new corporation; but after some negotiations with the defendant's treasurer the parties executed the agreement of February 19, 1906. The 1906 agreement did not purport to continue the plaintiff in the defendant's employment. On the contrary it recited that "having been for many years in the employ of" the defendant, he was "desirous of getting out into a different line of busi-3. ness." It seems quite apparent in the light of the circumstances that the main purpose of the retainer of $10,000 was to prevent competition by the plaintiff. His possible future services under the agreement were to be ren 2. APPEAL AND ERROR 928(2)—PRESUMP TIONS-INSTRUCTIONS. is not reported, it is to be presumed that full Where the charge upon branch of the case and accurate instructions were given. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3750; Dec. Dig. 928(2).] MUNICIPAL CORPORATIONS 706(6)-Au TOMOBILE ACCIDENT-QUESTION FOR Jury. In an action under St. 1907, c. 375, for damages for death caused in a city street by the negligence of defendant corporation's servants, held, on the evidence, that whether the servants operating the automobile which killed plaintiff's intestate could have avoided the collision by the ACTION FOR WRONGFUL in its business within the terms of St. 1907, c. 375, § 1. As the charge upon this branch of the case is not reported, it is to be assumed that full and accurate instructions were given. 4. TRIAL 251(8) DEATH-INSTRUCTIONS. [3] The testimony as to the circumstances In an action under St. 1907, c. 375, for con- of the accident was conflicting. The evidence scious suffering and for wrongful death, defend-offered by the defendant tended to show that ant's requests, wholly inapplicable to the first count, could not have been given. [Ed. Note.-For other cases, see Trial, Cent. Dig. 593; Dec. Dig. 251(8).] 5. DEATH 14(1)-WRONGFUL DEATH-LIA BILITY. the plaintiff ran his motor-cycle directly in front of the defendant's automobile when the latter was but four or five feet away; if this evidence was believed it is plain that the plaintiff could not recover. The jury, howUnder such statute, the plaintiff was not precluded from recovery even if the defendant's ever, was not bound to accept this version servant, whose negligence caused the accident, of the manner in which the accident happen"acted with as much care and skill as could ed, but could have found that the plaintiff reasonably be expected from a person of his lack of experience," since that could not bear upon the servant's culpability. [Ed. Note.-For other cases, see Death, Cent. Dig. 16; Dec. Dig. 14(1).] 6. TRIAL 256(13) QUEST. · INSTRUCTIONS turned to pass in front of the automobile when it was forty or fifty feet away, and that the defendant's servant, who was operating the automobile, by the exercise of reaRE- Sonable care could have avoided the collision. Rogers v. Phillips, 206 Mass. 308, 92 N. E. 327, 28 L. R. A. (N. S.) 944; s. c., 217 Mass. 52, 104 N. E. 466. In such action, defendant, if it desired more specific instructions as to the matter of damages under the count for wrongful death, or thought that the instructions given were inadequate, should have directed the court's attention thereto. [Ed. Note.-For other cases, see Trial, Cent. Dig. & 640; Dec. Dig. 256(13).] Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge. The jury also was warranted in finding that the plaintiff was in the exercise of due care. St. 1914, c. 553. It follows that the presiding judge could not have directed a verdict for the defendant nor given its first request. [4-6] It is manifest that the defendant's Action by Henry B. Winslow, administra-fifteenth request, made generally, was wholly tor, against the New England Co-operative inapplicable to the first count for conscious Society. Verdict for plaintiff, and defendant suffering, and therefore could not have been excepts. Exceptions overruled. given. Aside from that objection, it was not a correct statement of the law as applied to the second count which is for death. If the death of the plaintiff was caused by the negligence of the defendant's servant while engaged in its business, and while the plaintiff CROSBY, J. [1] The accident which re- was in the exercise of due care, the defendsulted in the death of the plaintiff's intestate, ant would be liable. The amount of damages, occurred on Main street in Melrose on June within the limits prescribed by the statute, 19, 1915. The declaration is in two counts: would be determined by the degree of culpaThe first for the conscious suffering and the bility. The plaintiff was not precluded from second for the death of the intestate. The recovery even if the servant whose negliplaintiff's intestate, whom we will hereafter gence caused the accident "acted with as refer to as the plaintiff, while riding a motor- much care and skill as could reasonably be cycle attempted to pass the defendant's auto-expected from a person of his lack of expemobile which was traveling in the same di-rience." If the defendant desired more sperection, the wheel of the motor-cycle slipped cific instructions to be given upon the matter or skidded as the plaintiff turned to the right, or he lost his balance, and was struck by the automobile receiving injuries which resulted in his death. M. F. Cunningham, of Boston, and C. J. Muldoon, Jr., of Somerville, for plaintiff. Peabody, Arnold, Batchelder & Luther, of 'Boston, for defendant. of damages under the second count, or was of opinion that the instructions as given were inadequate, the judge's attention should have been directed to that subject. [2] There was evidence that the defend- The fifteenth request, construed in accordant's manager had instructed Clifford, an ance with its ordinary and natural meaning, employé of the defendant, to teach Bartlett, was a request for an instruction that the another employé of the defendant to drive driver of the automobile was not negligent the automobile, and that the accident oc- if he acted with as much care as could be curred when Clifford and Bartlett were re-expected in view of his lack of experience turning from dinner and while Bartlett was even if he failed to exercise the care of an operating the car under Clifford's instruc-ordinarily prudent person. That proposition tions. Under these circumstances a finding is contrary to the well established rule, and was warranted, that the accident happened no authority in its support has been cited. while the defendant's servants were engaged The request did not in terms refer to the For other cases ce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes culpability of the defendant's servant, nor | plaintiff, and the named defendant excepts. could it be inferred necessarily that it was Exceptions overruled. directed to that question. The instructions given, so far as recited in the bill of exceptions, were clear and accurate. Exceptions overruled. (225 Mass. 525) STAUFFER v. KOCH et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 8, 1917.) 1. GUARANTY 7(1)-NOTICE OF ACCEPT ANCE. Alton F. Tupper, of Boston, for plaintiff. Samuel Sigilman and Wendell P. Murray, both of Boston, for defendant Koch. CARROLL, J. This is an action to recover the price of two motors ordered by one Eyges. February 1, 1912, Koch Brothers, of which the defendant was a member, wrote the Fidelity Electric Company of Lancaster, Pennsylvania, hereinafter called the seller, guaranteeing Eyges' account amounting to wrote the seller, requesting it to ship to $132.50. February 17, 1912, Koch Brothers Charles Eyges Company, one dynamo by Adams Express. April 25, 1912, they again wrote requesting the seller to fill Eyges' order for one motor, and guaranteeing the same. In replying to this letter the seller asked if Koch Brothers guaranteed purchases made by Eyges Company from time to time. On May 24, 1912, the defendant informed the seller that he understood that it had an order for various motors, amounting to $346.25, "to be consigned to him [Eyges] Defendant had guaranteed the payment of previous contracts made by a third person. When defendant's offer to guarantee the return of goods ordered by such person, or their payment, was refused by the seller, he was told by letter that the goods would be shipped when the account was guaranteed. Knowing the fact, defendant wrote the seller to send the goods at once to the party ordering them, guaranteeing payment, and the party ordering them telegraphed the seller to ship, which it did. Held, that under the circumstances no notice of acceptance of his guaranty was necessary to bind defendant, his agreement not having been a mere offer and proposal to guarantee a debt, requiring notice of acceptance, but having been an acceptance of the proposal made by the sell-on condition that we guarantee either the reer, and an absolute guaranty of payment. turn of the goods or the cash after sixty [Ed. Note.-For other cases, see Guaranty, days. If this is satisfactory to you, you may Cent. Dig. § 9; Dec. Dig. 7(1).] 2. CORPORATIONS ~32(3)—Corporate ChaR ACTER. make shipment to Charles Eyges and you may consider this our guarantee, as per our understanding of this transaction above outlined." May 27, 1912, the seller replied, saying that it could not accept consignment orders and if Eyges desired the goods ordered, he should "send us back the signed guaran In an action by the assignee of a corporation against the guarantor of an account, correspondence showing that the guarantor addressed the corporation by a corporate name, together with the assignee's testimony that he was the treasurer and director of the corporation, and that the signature to the assignment tee which we have sent to him in blank"; was that of its president, was some evidence and the defendant wrote to seller: that the corporation was such and the assignment its act, so that the assignment was admissible without preliminary proof of incorporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1729, 1743, 1762; Dec. Dig. 432(4).] "June 5, 1912. "Fidelity Electric Co., Lancaster, Pa.-Gentlemen: We understand that Mr. Eyges has ordered from you one 3 H. P. and one 5 H. P. motor to be delivered to him at once. "Please note that we herewith guarantee the payment of same on the basis of regular sixty day terms. Very truly yours, "[Signed] Koch Brothers, "By Henry Koch." June 6, 1912, Eyges ordered the motors by telegram. The telegram and guarantee were received in Lancaster June 6, 1912, and on their receipt the motors were shipped to the Metropolitan Mattress Company, in Boston, ing, assigned to the plaintiff its claim against and charged to Eyges. The seller, in writ the defendant. The action is to recover on 4. APPEAL AND ERROR 843(1)-QUESTION this guarantee of June 5th. The verdict was PRESENTED-WAIVER OF REQUESTS RAISING for the plaintiff. QUESTION. Judicial Court for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; Dec. Dig. 843(1).] [1] The defendant contends that he is not Where requests raising a question were liable on the guarantee because no notice of waived, the question is not before the Supreme its acceptance by the seller was given him. The defendant had guaranteed the payment of previous contracts made by Eyges. When his [Koch's] offer to guarantee the return of the goods or their payment was refused, he was told in the letter of May 27, 1912, that the goods would be shipped when the account was guaranteed. Knowing this fact, Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge. Action by B. Grant Stauffer against Henry A. Koch and others. There was verdict for was at least prima facie a valid instrument. [4] The motors were shipped to the Metro now argues that he is not liable because the delivery was not made to Eyges. This question is raised by the fifth and eighth requests of the defendant. The record shows that these requests were waived; therefore, the question now argued is not before us. Exceptions overruled. he wrote to the seller to send the motors at once, guaranteeing the payment, and the next day Eyges telegraphed to ship them. Under these circumstances no notice of acceptance was necessary. Before the 5th of June, 1912, the defendant knew from previ-politan Mattress Company and the defendant ous letters of the seller that no goods would be sent to Eyges unless the price was guaranteed, and the defendant's promise to pay the debt in question was in response to the letter of the seller requesting the guarantee. The defendant's agreement of June 5 was not a mere offer or proposal to guarantee a debt, requiring notice of its acceptance; it was an acceptance of the proposal made by the seller and was an absolute guarantee of payment of the price of the motors ordered, and no notice was necessary. Paige v. Parker, 8 Gray, 212; Bishop v. Eaton, 161 Mass. 496, 37 N. E. 665, 42 Am. St. Rep. 437; Lennox 1. PLEADING 225(1) — DEMUBRER—AMEND v. Murphy, 171 Mass. 370, 50 N. E. 644; Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527, 62 N. E. 1061; Cumberland Gas Co. v. Wheaton, 208 Mass. 431, 94 N. E. 803. [2] The plaintiff claimed to be the owner of the debt sued on, by virtue of a written assignment from the Fidelity Electric Co., signed by its president, and stamped with the corporation's seal, reading: "Fidelity Electric Company, Lancaster, Pennsylvania, Inc., February 28, 1898." The plaintiff testified that he was the treasurer and a director of the corporation, and the signature was that of the president. The defendant objected that there was no evidence that the Fidelity Electric Co. was a corporation, that the president had authority to execute the assignment, or that the assignment was the act of the corporation. The assignment was properly admitted in evidence. The correspondence shows that the defendant addressed the seller as the Fidelity Electric Company, Inc. This, together with the testimony of the plaintiff which was not objected to, was some evidence that the company was a corporation and the assignment was its act. As was stated in Narragansett Bank v. Atlantic Silk Co., 3 Metc. 282, 287: "The maxim of law is, that all things shall be presumed to have been rightly and correctly done, until the contrary is proved. * As the corporation could not proceed lawfully, until duly organized, and as they did proceed to act as a corporation, this presumption has its effect." * See Provident Inst. for Sav. v. Burnham, 128 Mass. 458; Packard v. Old Colony R. R., 168 Mass. 92, 46 N. E. 433; Bagley v. Wonderland Co., 205 Mass. 238, 245, 91 N. 317. See R. L. c. 173, § 123. [3] Although there was no direct evidence showing the authority of the president to execute the assignment, it bore the seal of the corporation and the signature of its president; in the absence of anything to the contrary, he must be presumed to have had authority to act, and the assignment (225 Mass. 480) CORBETT et al. v. GALLAGHER. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1917.) MENT. Where demurrer is sustained to bill with leave to amend, motion to amend should not be denied, on the ground that the proposed amendment does not remove the grounds of demurrer, and the bill dismissed, but the amendment should be allowed and the demurrer filed anew. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 575-578, 580-583; Dec. Dig. 225(1). 2. APPEAL AND ERROR 171(1)-REVIEW OF PLEADINGS-PRACTICE BELOW. Though, after sustaining of demurrer to bill with leave to amend, amendment was denied on the ground that the proposed amendment did not remove the grounds of demurrer, and bill dismissed, yet the parties having treated the case as if the proper practice, allowing the amendment, and filing the demurrer anew, had been followed, it will be so treated on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1055, 1066, 1067; Dec. Dig. 171(1).] 3. TRUSTS 17, 18(7)—Oral AGREEMENT AS TO LAND "EXPRESS TRUST." Any trust created by the oral agreement on which C., the owner of land, conveyed it to G., the second mortgagee, that G. should collect the rents and apply them on his mortgage, pay the taxes and interest on first mortgage, pay the first mortgage in case of threatened foreclosure; and if an offer of purchase acceptable to C. should be made, should sell and pay to C. the balance of proceeds after satisfying his own claim, notwithstanding which G. sold without C.'s knowledge and refused to account_for_the proceeds-is express, and so invalid under Rev. Laws, c. 147, § 1, providing that no trust concerning land, except such as may result by implication of law, shall be created or declared unless by writing signed by the party creating or declaring the trust. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 23; Dec. Dig. 17, 18(7). First and Second Series, Express Trust.] For other definitions, see Words and Phrases, 4. TRUSTS 25(1)-RECITAL IN DEED. Recital in deed to second mortgagee that it shall not operate as a merger with his mortgage, under which an entry to foreclose had been made, has no effect to declare a trust in favor of the grantor. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 34, 35; Dec. Dig. 25(1).] 5. TRUSTS 25(1)—CREATION-LETTERS. Promise in letter of F., second mortgagee's attorney and agent to C., mortgagor, stating For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes relative to C.'s suggestion that he give deeds of the equities, and save expense and publicity of foreclosure sales, that they had decided that it would be well for such deeds to be made, adding, "We will then see what can be done with the property and whatever we can net at private sales or otherwise we will credit to the account of the various mortgages," at most is a contract to credit on the various mortgages the net proceeds of sale, and cannot be construed as manifesting a trust in favor of the mortgagor in respect to the properties. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 34, 35; Dec. Dig. 25(1).] Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge. Suit by Peter Corbett and others against Charles T. Gallagher. From a decree dismissing the bill, plaintiffs appeal. Affirmed. Letter of April 14, 1908, from Fred A. Fernald, defendant's attorney and agent, to Peter B. Corbett, as set out in the amended bill, is as follows: "In accordance with your suggestion that you give deeds of the equities and thereby save the expense and publicity attendant upon foreclosure sales of the various properties of yours in South Boston, of which we took possession on April 2nd, 1908, we have finally decided that probably it would be well for such deeds to be made for the property at 440 Fourth Street, 321-5 Broadway, and 198 Silver Street. We will then see what can be done with the property and whatever we can net at private sales or otherwise we will credit to the account of the various mortgages and the accumulation of interest and expenses thereon." Thos. H. Mahony, of Boston, for appellants. Geo. W. Anderson and Morrill A. Gallagher, both of Boston, for appellee. satisfying his own claim. It further alleged that Mrs. Corbett, pursuant to such agreement, gave the defendant a deed of the property; that he collected the rents until October 1912, and then sold the premises without the knowledge of the plaintiffs, and refused to account to them for the proceeds. [1, 2] The court sustained the defendant's demurrer, and allowed the plaintiffs ten days in which to amend. Later the motion to amend was denied, on the ground that it did not "remove the valid grounds of demurrer already sustained," and the bill was dismissed. The proper practice would have veen to allow the amendment and file the demurrer anew; but as the parties have treated the case as if this had been done we prefer so to consider it. See Capaccio v. Merrill, 222 Mass. 308, 110 N. E. 626. [3] Without considering the other grounds set out in the demurrer to the original bill, the statute of frauds was conclusive. If the alleged oral agreement could be construed as creating a trust, it would be an express one, and invalid by force of R. L. c. 147, § 1, which provides that no trust concerning land "shall be created or declared unless by an instrument in writing signed by the party or by the attorney of the party creating or declaring the trust." [4, 5] The amended bill sought to meet this objection by inserting three new paragraphs, marked 8, 9 and 10. The first two state the recitals in the deeds to the defendant, to the effect that the conveyance should not operate as a merger with his mortgage, under which DE COURCY, J. In substance the allega- an entry to foreclose had been made. Mantions of the original bill were as follows: ifestly these had no effect to declare a trust. That in April 1908, Mary F. Corbett, under And we think the same is true of the letter whom the plaintiffs claim, was the owner of written by Mr. Fernald to Peter B. Corbett two parcels of land in Boston; that the de- on April 14, 1908, and set out in paragraph fendant holding a second mortgage thereon 9 of the amended bill. The promise therein for $2,500, which was due and payable, made at most is a contract, an agreement to credit an entry to foreclose and threatened to make on the various mortgage notes the net prosale; that the plaintiff Peter B. Corbett, act- ceeds of a sale. It cannot be construed as ing for his wife Mary F., orally agreed with manifesting any such trust as the plaintiffs the defendant that the latter should take claim. Bourke v. Callanan, 160 Mass. 195, possession of the property, collect the rents 35 N. E. 460; Rose v. Fall River Five Cents and apply them to his mortgage; should pay Savs. Bank, 165 Mass. 273, 43 N. E. 93; Tourthe taxes and interest on the first mortgages; tillotte v. Tourtillotte, 205 Mass. 547, 91 N. pay off the first mortgages in the event of E. 909. See Hall v. First Nat. Bank, 173 foreclosure thereof being started; and if Mass. 16, 53 N. E. 154, 44 L. R. A. 319, 73 an offer of purchase should be made accepta- | Am. St. Rep. 255. ble to said Mary F. Corbett or her husband, It is unnecessary to consider the other he should sell the property and pay to said grounds set out in the demurrer. Mary F., the balance of the proceeds after Decree affirmed with costs. |