See EXECUTOR AND ADMINISTRATOR.
Illegal advertisement as to prevention of conception. Commonwealth v.
Allison, 57.
Evidence which was held to warrant findings that an intoxicated and negli-
gent chauffeur was the servant of the owner of a motor car and was acting
within the scope of his employment when he ran into and killed a pedes-
trian when driving late at night with guests of his own from Boston to a
town about fifteen miles away after having failed to find a person whom he
had been instructed by his employer to get, and after having spent the
evening in debauchery. Donahue v. Vorenberg, 1.
On the evidence at the trial of an action against the indorser of a promissory
note, where it appeared that neither the place of payment nor the address
of the maker was stated in the note and that the only presentment for
payment was to a man in an open field near the defendant's house, it was
held that there was a failure to show a demand upon the maker in person
or upon her authorized agent or upon any person found at a place where
presentment ought to have been made. Simmons v. Poole, 29.
In the same case it was held that evidence that more than six months before
the attempted demand the man on whom the plaintiff made the demand
had been a great many times to the plaintiff's store to buy provisions for
the maker of the note and her husband, had no tendency to show an agency
to receive a demand for the payment of a promissory note at the time and
place in question. Ibid.
In the same case the admission of evidence that the plaintiff asked the man
about the maker and her husband and that he answered that they had gone
to Boston and would be back, he thought, about six o'clock and that he
"was in charge," was held to have been error. Ibid.
Evidence at the trial of an action for personal injuries sustained by being run
into by a motor car of the general manager of a corporation that con-
ducted "lunch rooms" when driven by the assistant general manager
which, it was held, required submission to the jury of the question, whether
there was evidence for the jury that at the time of the accident the assistant
general manager was driving the car in behalf of the defendant. Higgins v.
Bickford, 52.
Neither entries in a certain book kept by an express messenger as to marks
on packages and way bills, nor an entry on a "delivery sheet" showing to
whom according to the way bill a certain package was delivered, were ad-
missible as secondary evidence to prove the contents of way bills issued by
the express company and to show that a train containing the express car
was engaged in interstate commerce, where it did not appear that the ex-
press company in issuing the way bill acted as agent or by authority of the
railroad corporation. Rhoades v. New York Central & Hudson River Rail-
road, 138.
Under the workmen's compensation act, as at common law, a woman cannot
be the employee of her husband. Humphrey's Case, 166.
Findings that a husband was acting as his wife's agent and that she was bound
by his knowledge were held to have been warranted in a suit by a corpora-
tion against her and her husband, who had been its president, treasurer,
manager and a director, and had been deposed from the first three offices,
to have the wife declared a constructive trustee for the corporation of a
lease of the premises occupied by the corporation, which the husband had
procured to be leased to his wife contrary to his duty to the corporation as
a director. H. C. Girard Co. v. Lamoureux, 277.
In a suit in equity to restrain the officers and members of a labor union from
unlawful interference with the plaintiff's performance of a contract, on the
question of damages it was said that the officers of the union could not
create either by word or conduct a binding bargain in behalf of the members
of their union to furnish labor to be performed individually, unless they
had been authorized expressly or impliedly by the members to make such an
agreement in their behalf. W. A. Snow Iron Works, Inc. v. Chadwick, 382.
In the same connection it was said that a "custom and practice" of furnish-
ing men whenever the plaintiff communicated its needs to the responsible
officers of the union directly or through one of the plaintiff's foremen who
was a member of the union, even if known to the members of the union and
never formally disapproved, could not be found to be a contract for a breach
of which damages could be recovered or which could be enforced in equity.
Ibid.
Scope of Authority or Employment.
Evidence which was held to warrant findings that an intoxicated and negli-
gent chauffeur was the servant of the owner of a motor car and was acting
within the scope of his employment when he ran into and killed a pedes-
trian when driving late at night with guests of his own from Boston to a
town about fifteen miles away after having failed to find a person whom he
had been instructed by his employer to get and after having spent the even-
ing in debauchery. Donahue v. Vorenberg, 1.
An instructor in the motor vehicle department of an industrial and vocational
school maintained by a city was held under the circumstances not to be a
laborer, workman or mechanic within the meaning of the statute. Lesuer's
Case, 44.
Failure of the owner of a building, insured under a policy of insurance against
fire in the Massachusetts standard form before 1909, to give to the insurer
the statement in writing which the provisions of the policy required can-
not be excused on the ground that he was illiterate and left these matters
to an insurance agent, who assured him that the matter was attended to,
if there is no evidence of the authority of such agent to bind the insurer in
this regard. Urbaniak v. Firemen's Ins. Co. of Newark, 132.
In an action for goods sold and delivered to the defendant as the undisclosed
principal of the defendant's brother, who had pretended to buy the goods
from the plaintiff for himself, it was held under the circumstances to have
been right for the trial judge to refuse to rule that the plaintiff by charging
the goods to the defendant's brother and by demanding payment of the
purchase money only from him, before the plaintiff discovered that the
brother was acting as the agent of the defendant, made an election to accept
the defendant's brother as his debtor. Estes v. Aaron, 96.
In the case above described there was evidence that the defendant, when
solicited by the plaintiff to buy the goods from the plaintiff, had said that
his brother "did the buying for the concern," and it was held that this in
connection with the other evidence described above warranted a finding
that the defendant's brother was the agent of the defendant and had au-
thority to bind him. Ibid.
In the same case it was held that certain declarations of the defendant's
brother were admissible in evidence as oral and other acts incidental to the
declarant's application for credit, and that they also were admissible to
show the declarant's state of mind, his relation of agent for the defendant
as undisclosed principal having been established by other evidence. Ibid.
Suit in equity by a real estate agent, employed to manage certain apartment
house property and to collect the rents during a period named, against the
owner of the property, alleging a wrongful termination of the agency and
seeking an accounting, in which it was held that a custom, upon which the
agent relied in stating his accounts but which was unknown to the owner,
could not be made a part of the contract and that the owner had a right to
terminate the agency when the agent insisted upon enforcing such custom.
Russell v. Klein, 297.
Employee's Duty of Obedience.
At the trial of an action against a corporation for breach of a contract in writ-
ing for employment of the plaintiff by the defendant as general superin-
tendent of its factory for three years, through his discharge within four
months, it was held proper to refuse a request of the defendant for a ruling
that, if the plaintiff refused to appear before the defendant's board of di-
rectors after sufficient notice, such refusal justified his discharge and barred
the plaintiff from recovering on the contract, it appearing that on the evi-
dence the questions were in issue, whether the real cause of the discharge
was the refusal to attend the meeting and whether under the circumstances
the refusal was so serious a breach of duty as to warrant the discharge.
Crabtree v. Bay State Felt Co. 68.
Employer's Liability.
See that subtitle under NEGLIGENCE.
Workmen's Compensation Act.
See that subtitle under EQUITY PLEADING AND PRACTICE; PROBATE Court;
WORKMEN'S COMPENSATION ACT.
See REFERENCE AND REFEREE.
Bond to dissolve Attachment.
In an action, in which the defendant gave a bond with sureties to dissolve
an attachment, an amendment of the writ, in which the plaintiff was
described as "H. Bolwerk & Brother," a corporation, to make the parties
plaintiff "Henry Bollwerk and Joseph Bollwerk as a copartnership
under the firm name of H. Bollwerk & Brother," there being no such cor-
poration, was held under the circumstances not to create an actual change
of existing parties nor to increase nor change the liability imposed by the
terms of the bond, so that the bond remained in force in the action. Boll-
werk v. Hirshon, 375.
Notice given by a plaintiff, in an action at law in the Superior Court pending
in Suffolk County, to the defendant and to the sureties upon a bond to
dissolve an attachment, of a motion to amend the name and description
of the plaintiff was held to be a compliance with the requirement of R. L.
c. 173, § 121, so far as that section was applicable. Ibid.
False Representation of Qualification.
Construction of a contract by a corporation, organized under the laws of
another State "to establish, maintain, conduct and operate an office or
offices for the general practice of the law in all its branches," upon which
it was held that the plaintiff undertook to maintain a law department,
through which it would give the defendant free legal advice and would
perform the services of an attorney and held itself out "to be lawfully
qualified to practise in the courts of this Commonwealth," contrary to
Attorney at Law (continued).
the prohibition contained in R. L. c. 165, § 45, so that the contract was
unlawful and no action could be maintained upon it by the corporation.
Creditors National Clearing House, Inc. v. Bannwart, 579.
The allowance or disallowance of counsel fees as between solicitor and client
in a suit in equity is a matter wholly within the discretion of the court,
whose action will not be revised on appeal unless it was wholly unwarranted
or unless the discretionary power was exercised so arbitrarily as to make
such action manifestly unjust. Carlson v. Revere Beach County Fair &
Musical Railway, 291.
At the trial of issues framed for a jury in a suit in equity against a copartner-
ship for the collection of an alleged charge for professional services as a
lawyer rendered to the copartnership in connection with devising a plan
whereby certain rights owned by the copartnership could be sold, it appeared
that one means suggested and carried through by the plaintiff was the
incorporation of the business of the copartnership, and evidence, explana-
tory of the fact that the plaintiff rendered to the corporation when incor-
porated a bill for services performed in procuring such incorporation much
smaller than that to the partnership which was the basis of the suit, was
held to have been admitted properly. Stockbridge v. Mixer, 501.
It also was held that it could not be ruled as matter of law that the rendering
of the bill to the corporation and receiving payment of it barred the claim
against the copartnership. Ibid.
At the trial of the issues above described, it was held that, in connection with
other portions of the charge of the judge to the jury defining the rights and
obligations of the parties, it was proper for the judge to rule that "the
plaintiff is entitled to recover the full value of all his services rendered less
such sums as he has received from the defendants [copartners] and the
corporation, and whether the plaintiff did or did not include all [his] services
in [the] bill [to the corporation above described]." Ibid.
At the trial of such issues, it was proper to admit evidence tending to show
that an attorney at law, who questioned the right of the defendants to sell
their rights above described, had been referred by one of the defendants
to the plaintiff as their counsel, that the attorney had conferred with the
plaintiff and that the plaintiff had convinced the attorney of the feasibility
and practicability of his plan. Ibid.
Disbarment proceedings are on the law side of the court and are governed by
the rules of practice at common law so far as applicable. Boston Bar
Association v. Casey, 46.
In the present case of proceedings for disbarment this court in the exercise
of its discretionary power considered a second motion in arrest of judgment
merely for the purpose of determining whether the previous decisions of
this court in the same proceedings had been complied with, and, upon such
consideration, it was held that every question of law, even remotely con-
nected with the rights of the respondent, which was raised seasonably or
VOL. 227.
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