C. J. Muldoon, Jr., (J. J. O'Hare with him,) for the plaintiff. E. P. Saltonstall, (R. S. Pattee with him,) for the defendant. PIERCE, J. This is an action of tort for personal injuries received by the plaintiff at 5:45 on the evening of October 13, 1914, while she was waiting for a car of the defendant on Harrison Avenue Extension at the rear of the store of W. and A. Bacon Company in Boston. The judge ordered a verdict for the defendant.

The defendant does not question that the plaintiff was in the exercise of due care, and consequently the only issue is whether there is any evidence of the negligence of the defendant, its agents and servants in permitting the car to strike the plaintiff. Harrison Avenue Extension from curb to curb is a trifle over thirty-two feet wide. On this extension the defendant maintains two tracks of the standard gauge of four feet eight and one half inches, with a space between the inner rails of the two tracks of four feet and six inches. The space between the curb on the westerly side and the nearest rail is about nine feet; the space between the curb on the easterly side and the nearest rail is about nine feet. Cars come into the extension from Essex Street on the easterly track, and after they reach a point thirty-three feet from the Essex Street sidewalk they take a switch by which they go over to the westerly track and proceed one hundred and nine feet farther to the end of that track; where they change ends and return from whence they came; the easterly track north of the switch is used only in case of emergency.

The evidence was in some respects conflicting as to other conditions, but the jury reasonably could find that at the time of the accident teams were lined up on either side of the street along the sidewalk; that there were seventy-five or one hundred people crowded in the centre of the street along both sides of the track; that that crowd was moving, pushing and surging while waiting for the car to stop; that the plaintiff, standing with others on the unused track, was pushed forward toward the track upon which the car was coming by the crowd at her back, which sought escape from a large wagon driven toward those standing in the middle of the unused car track, in such a way that as it travelled along the team occupied both rails of the dead track; that the plaintiff as she was pushed forward put up her hand and screamed

to the motorman, then eighteen to twenty feet away; that the car kept coming at the same speed, hit the plaintiff with the fender or side of the car, and threw her between the wheels of the team.

As to the happening of the accident a witness testified, "we looked down and the car was coming and I raised my hand to stop, for I had nowhere to run, and the motorman did not see me, or was looking in some other direction, and kept on going; when he reached my side he struck down Mrs. Rhyno first and I fell after her and the car kept going fully three or four yards after it threw us."

As to the operation of the car the motorman testified that when he was about fifteen feet from the switch he noticed the group of young ladies and the team moving down on his right; that he knew there was "a considerable number of people right in the middle of the street;" that he could go through a crowd, going a foot or two, stop, and go a foot or two more, and that he could stop the car by shutting off the power within less than two or three feet if the car was going four or five miles an hour.

There was testimony to warrant a finding that the car passed the switch at the rate of four or five miles an hour and did not slow down until the accident happened. There was evidence that the crowded condition of this street with teams lined up on both sides, and the rush to board the car were the usual condition of things at this hour of the day. The jury could find that the motorman saw the situation of the plaintiff and her peril in season to have avoided the accident.

It was therefore a question of fact whether the motorman in the exercise of reasonable care could assume that the plaintiff was far enough away from the track not to be struck by the car.

Exceptions sustained.

JACOB WERLIN vs. EQUITABLE SURETY COMPANY.

Suffolk. March 27, 1917. May 25, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Bond. Contract, What constitutes. Estoppel. Name.

An individual person cannot maintain an action against a surety company on a bond in which the obligee is described only as the "New Boston Biscuit Company, a corporation of Malden, Massachusetts," where the plaintiff testifies that there was no such corporation as the New Boston Biscuit Company in existence, and the defendant's agent, who executed the bond for it, testifies that acting for the defendant he believed at the time of the execution and delivery of the bond that the surety company was making a contract with a Massachusetts corporation and not with the plaintiff individually, and that, if he had been informed that the New Boston Biscuit Company did not exist as a corporation but that the plaintiff individually was the proprietor of the business mentioned in the bond, he would not have executed the bond in behalf of the defendant, at least not without further investigation, and where it also appears that the defendant was not informed until the action was brought that the plaintiff claimed to be the obligee named in the bond, there being no evidence of a contract between the plaintiff and the defendant.

In the same case it was said that the plaintiff, after his representations that he was acting in behalf of an existing corporation, which were relied on by the defendant, was estopped to deny the existence of the corporation and to assert that the contract contained in the bond was made with him individually. Whether the failure of a person transacting business in a name not his own to have filed a certificate with the clerk of the city in which he carries on his business as required by St. 1907, c. 539, § 1, is a defence to an action brought by him on a bond purporting to be made to a company in whose name he carries on his business, here was mentioned as a question which it was not necessary to consider in the present case.

CONTRACT on a bond under seal dated October 9, 1913, of which the first three paragraphs are printed below. Writ dated March 21, 1914.

The first three paragraphs of the bond sued upon were as follows: "Know all men by these presents, That we Omaha Machine Works, a corporation of Nebraska, and L. C. Sharp, of Omaha, Nebraska, (hereinafter called the 'Principal') as Principal, and the Equitable Surety Company, a corporation under the laws of the State of Missouri, having its principal office in the City of St. Louis, Missouri, (hereinafter called the 'Surety') as Surety,

are held and firmly bound unto New Boston Biscuit Company, a corporation of Malden, Massachusetts, (hereinafter called the 'Obligee'), in the sum of Two thousand (2000) dollars, to the payment of which said sum of money, well and truly to be made, the said Principal and Surety bind themselves, their heirs, executors, administrators, successors, assigns and legal representatives, jointly and severally firmly by these presents.

"Whereas the Principal has entered into a written contract dated September 26th, 1913, with the Obligee for the delivery, within a reasonable time, four (4) Ice Cream Cone Machines, known as the 'Rumpel Patent Cone Machine,' to obligee at Malden, Massachusetts, as per contract, which is made a part hereof, the same as if it were written herein, in full.

"Now therefore, the condition of this obligation is such, That if the said Principal shall faithfully perform said contract according to the terms, covenants and conditions thereof, by the Principal to be performed (except as hereinafter provided) then this obligation shall be void, otherwise to remain in full force and effect."

In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. At the close of the evidence the defendant moved to have all the evidence offered in the case stricken out and especially the bond and contract in question and for a verdict for the defendant. The judge refused to make at that time any ruling upon this motion and stated to the counsel that he desired to have the jury pass upon certain issues before making any rulings. Thereupon, he framed and submitted to the jury the following issues, to which the jury returned the answers appended:

"1. Did Sharp, acting in behalf of the Omaha Machine Works, believe that he was contracting with Jacob Werlin doing business under the name of the New Boston Biscuit Company and intend to contract with Werlin; or did Sharp believe that he was contracting with the New Boston Biscuit Company, a corporation, and intend to contract with it?" The jury answered, "Jacob Werlin."

"2. Did or did not the first machine sent and received satisfactorily operate and run as required by the contract?" The jury answered, "No."

"3. Were or were not the other three machines repaired,

improved and shipped as soon thereafter as they could be properly and accurately repaired and improved as required by the contract?" The jury answered, "No."

“4. If the jury answer either Question 2 or 3 in the negative, then was or was not notice of such breach given to the surety company as required in the bond?" The jury answered, "Yes."

By order of the judge the jury returned a verdict for the defendant. The plaintiff alleged exceptions to the ordering of the verdict and "to all rulings necessarily concerned in such verdict, and particularly to the ruling of the court that the wording of the bond is such as to prevent recovery by the plaintiff, and also to the ruling that by reason of the plaintiff's failure to file the certificate in the city clerk's office he is not entitled to recover."

Thereupon at the request of the plaintiff the judge reported all questions of law raised upon the record for determination by this court.

St. 1907, c. 539, § 1, is as follows: "Any person or persons conducting or transacting business in this Commonwealth under any name, designation or title other than the real name or names of the person or persons conducting or transacting such business, whether individually or as a firm or partnership, shall file in the office of the clerk of the city or town in which the place or places of business or office or offices of any such person, firm or partnership may be situated, a certificate stating the full name and residence of each person engaged in or transacting such business. The clerk shall keep a record of such certificates, and an index of the names of such persons, firms and partnerships, entering in such index in alphabetic order the name of every person and the title under which he does business, and of every firm or partnership and the names of the members thereof."

Section 2 of this statute, which contains a statement of the corporations, firms, associations and trustees to which this statute shall not apply, was amended by St. 1908, c. 316, but no change was made in § 1 as quoted above.

E. C. Stone, (J. Michelman with him,) for the plaintiff.

A. L. Taylor, (C. P. Richardson with him,) for the defendant. DE COURCY, J. By the express language of the bond in suit the Equitable Surety Company became bound "unto New Boston Biscuit Company, a corporation of Malden, Massachusetts,