thereof and additions thereto. Whenever the tax commissioner believes it to be for the best interests of the Commonwealth he may require in addition to the above information the following details relating to each policy of ordinary business in force on the preceding thirty-first day of December and held by a resident of Massachusetts; the number, date, and class, the age of the assured life, the amount insured and the net value."

The respondent concedes on the authority of Curtis v. New York Life Ins. Co. 217 Mass. 47, that a contract for an annuity is not strictly a contract of life insurance as defined in R. L. c. 118, § 3. But the recodifying St. of 1907, c. 576, § 66, without expressly discarding the definition, provides, that "All corporations, associations, partnerships or individuals doing business in this Commonwealth under any charter, compact, agreement or statute of this or any other State, involving the payment of money or other thing of value to families or representatives of policy and certificate holders or members, conditioned upon the continuance or cessation of human life, or involving an insurance guaranty, contract or pledge for the payment of endowments or annuities, shall be deemed to be life insurance companies. . . And the conclusion is irresistible that if the petitioner had issued only contracts for the payment of annuities, it must be deemed to be a life insurance company. If so it would be accurately described as in "the business of life insurance." It is none the less so engaged because it also issues policies of life insurance. The words "the business of life insurance," "all policies in force," "total number of policies in force," "ordinary business," "each policy of ordinary business," and "the amount insured and the net value" found in § 26, as amended, are consequently to be read in connection with the spirit and purpose of § 66 of the St. of 1907, c. 576. While language more technically appropriate might have been used, the business of issuing contracts for annuities is under the statute "the business of life insurance," and if the word "policy" ordinarily imports that at death a certain sum will be payable by the insurer, yet a "policy" is a contract, and "each policy of ordinary business" where the insurer engages solely in providing such security would cover the business of issuing contracts of annuity.

By the statute this class of contracts is also put in the category 5

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of endowment contracts where a certain sum is to be paid the insured if he lives for a definite period, or, if he dies before the period ends, payment is to be made to his heirs or to the designated beneficiary, which were held in Curtis v. New York Life Ins. Co., supra, as not being contracts of insurance as defined in R. L. c. 118, § 3. The statute also would include a contract of term insurance where the life is insured only for a term of years or until the assured shall arrive at a certain age. Briggs v. McCullough, 36 Cal. 542, 550. Rosenplanter v. Provident Savings Life Assurance Society, 37 C. C. A. 566. Carr v. Hamilton, 129 U. S. 252, 253. The St. of 1915, c. 217, § 1, was enacted after the decision in Curtis v. New York Life Ins. Co., supra, where it was further said, when speaking of the different forms which the business of life insurance has assumed in recent years,

66

one of the well known forms of contract is that of annuities, not within the technical meaning of the term, or incorporeal hereditaments created by grant,—but in the modern sense of a simple promise to pay a certain amount yearly."

We are accordingly of opinion that by the words "all policies in force on the thirty-first day of December of the year preceding that in which the tax is payable," the Legislature intended to include all contracts of every description issued by life insurance companies doing business in this Commonwealth which are based upon the "continuance or cessation of human life." Shelton v. Sears, 187 Mass. 455, 460. Connecticut Mutual Life Ins. Co. v. Commonwealth, 133 Mass. 165.

Nor does this conclusion result in double taxation, as the annuitant pays a tax only on income. St. 1909, c. 490, Part I, § 4, cl. 4, as amended by St. 1909, c. 440, § 1. St. 1916, c. 269, § 5 (a). The amount assessed to the petitioner moreover is in no sense a property tax, but an excise exacted for the privilege of transacting its particular business within this jurisdiction. Commonwealth v. Lancaster Savings Bank, 123 Mass. 493, 496.

The levy having been authorized, the practice of previous years during which no return as to annuities was required, and no excise was imposed, is immaterial, and the petition must be dismissed. Attorney General v. Barney, 211 Mass. 134, 137.

So ordered.

ALMIRA LEIGHTON vs. HAVERHILL SAVINGS BANK.

Essex. January 26, 1917. - May 25, 1917.

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

Savings Bank. Insanity. Payment.

Where a deposit has been made in a savings bank by a woman of sound mind and she afterwards becomes insane or mentally incapacitated and when in this condition signs an order directing the bank to pay the entire amount of the deposit to her husband, if the bank pays the money to the husband in accordance with the order in the ordinary course of business without any knowledge of the insanity or mental incapacity of the woman, such payment is a discharge of the indebtedness of the bank to the woman. Following Reed v. Mattapan Deposit & Trust Co. 198 Mass. 306.

CONTRACT OR TORT for the amount of a deposit with the defendant alleged to have been paid improperly to the plaintiff's husband upon an order signed by her when she was insane. Writ in the Central District Court of Northern Essex dated January 3, 1911.

On appeal to the Superior Court the case was tried before Bell, J. The material facts and answers of the jury to special questions submitted to them are described in the opinion. The judge ordered a verdict for the plaintiff in the sum of $399.64, and at the request of the parties reported the case to this court for determination, judgment "to be entered on the verdict or for the defendant or a new trial granted or such other disposition made of the case as justice and equity may require."

The case was submitted on briefs.

O. J. Carlton, for the defendant.

W. S. Peters, H. J. Cole & F. H. Magison, for the plaintiff. DE COURCY, J. On June 9, 1902, the plaintiff's husband, Charles N. Leighton, made a deposit of $212 (which apparently belonged to the plaintiff) in the defendant bank and received a deposit book in her name. Later he went to the bank with the deposit book and an order for the full amount, dated August 18, 1902, and signed by the plaintiff, and he was paid. According to the special findings of the jury the plaintiff was capable of making the contract of deposit on June 9, but was incapable of giving the order

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on the date of the withdrawal. It was admitted that the defendant had no knowledge of the plaintiff's insanity and acted in good faith. This action by the plaintiff for the recovery of the deposit was brought in January, 1911, and after the death of her husband. In our opinion this case is governed by Reed v. Mattapan Deposit & Trust Co. 198 Mass. 306, in which the facts were substantially the same. In that case it was held that where a deposit has been made in a bank by a person of sound mind, and the depositor afterwards becomes insane and draws a check upon his account, which the bank pays without any knowledge of his insanity, such payment is a discharge of the bank's indebtedness to its depositor, and not a new contract which can be avoided. It is not material that here the defendant is a savings bank and not a trust company; the same relation of debtor and creditor exists between the parties for the purposes of the present case. And the fact that payment was made on the plaintiff's order to her husband, whom she had held out to the defendant as her authorized agent, does not distinguish this case in principle from the Reed case where the payment was made to the depositor in person. Drew v. Nunn, 4 Q. B. D. 661. Hill v. Day, 7 Stew. 150. Matthiessen & Weichers Refining Co. v. McMahon, 9 Vroom, 536. Merritt v. Merritt, 43 App. Div. (N. Y.) 68. See Riley v. Albany Savings Bank, 36 Hun, 513, affirmed in 103 N. Y. 669.

In accordance with the report, judgment is to be entered for the defendant, and it is

So ordered.

ALBERT CRABTREE vs. BAY STATE FELT COMPANY.

Suffolk. March 5, 1917. - May 25, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ. Contract, Of employment. Agency, Employee's duty of obedience.

At the trial of an action against a corporation for breach of a contract in writing for employment of the plaintiff by the defendant as general superintendent of its factory for three years, through his discharge within four months, it appeared that the plaintiff had refused to attend a meeting of the defendant's board of directors and that thereafter the defendant discharged him, and there

was evidence that the plaintiff's refusal to appear before the directors was not the real reason for his discharge but a pretext seized upon by the directors to justify them in putting an end to a contract which for other reasons they desired to terminate, that relations were strained between the plaintiff and the defendant's board of directors, that the meeting of the directors was held in a city thirty-two miles distant from the factory in the law office of the defendant's counsel and apparently was not called for a conference but to subject the plaintiff to an examination by the attorney and that the notice of the meeting to the plaintiff did not state its purpose; and there was no evidence that any provision of the contract of employment or any rule or custom required the plaintiff to attend meetings of the defendant's directors. The judge refused to grant a request of the defendant for a ruling, in substance that, if the plaintiff refused to appear before the defendant's board of directors after sufficient notice, such refusal justified his discharge and barred the plaintiff from recovering on the contract. Held, that the refusal was proper, as the ruling requested assumed the existence of facts in dispute on the evidence, namely, that the real cause of the discharge was the refusal to attend the meeting and that under the circumstances the refusal was so serious a breach of duty as to warrant the discharge.

CONTRACT for breach of a contract in writing whereby the defendant agreed to employ the plaintiff as general superintendent of its factory for three years. Writ dated December 3, 1913.

In the Superior Court the case was tried before Brown, J. The material evidence and the exceptions of the defendant are described in the opinion. The jury found for the plaintiff in the sum of $4,467.07; and the defendant alleged exceptions.

John Wentworth, for the defendant.

V. P. Sipprelle, for the plaintiff.

DE COURCY, J. The plaintiff had a written contract of employment as general superintendent of the defendant's felt factory and business at Westborough, for a period of three years beginning on August 1, 1913. He was formally discharged by a vote of the directors on November 25, 1913; and in this action for breach of the contract he obtained a verdict. The defendant's only exception is to the judge's refusal to give the following request: “3. If the plaintiff refused to appear before the board of directors of the defendant corporation when given sufficient notice to do so, then the refusal justified the defendant in discharging the plaintiff and the plaintiff cannot recover upon the contract."

This request embodies two elements: first, an assumption that the plaintiff's refusal to appear before the directors was the reason for his discharge, and second, a conclusion that this refusal warranted his summary dismissal. As to the first, it cannot be said