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mass/1080025.json

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+"{\"id\": \"1080025\", \"name\": \"Town of Rowley vs. Michael K. Kovalchuk\", \"name_abbreviation\": \"Town of Rowley v. Kovalchuk\", \"decision_date\": \"2001-05-10\", \"docket_number\": \"\", \"first_page\": \"1006\", \"last_page\": \"1006\", \"citations\": \"434 Mass. 1006\", \"volume\": \"434\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:29:37.769307+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Town of Rowley vs. Michael K. Kovalchuk.\", \"head_matter\": \"Town of Rowley vs. Michael K. Kovalchuk.\\nMay 10, 2001.\\nDonald K. Freyleue for the defendant.\\nDonna Gorshel Cohen for the plaintiff.\", \"word_count\": \"174\", \"char_count\": \"1063\", \"text\": \"We granted the defendant's application for further appellate review in this case that was decided in the Appeals Court by an unpublished memorandum and order pursuant to its rule 1:28. Rowley v. Kovalchuk, 49 Mass. App. Ct. 1113 (2000). The case involves the lawfulness, under applicable zoning laws and regulations, of the defendant's use of his land for the operation of a sawmill. The case is an appropriate one for summary judgment. The nature of the question in controversy \\u2014 the lawfulness of the use \\u2014 is intensely fact specific. Based on the undisputed material facts set forth by the Superior Court judge in her written memorandum of decision, we agree with the reasoning and conclusion of the Appeals Court that the defendant's operation of the sawmill is not lawful as incident to a permitted agricultural use. The permanent injunction barring the defendant from operating a sawmill at the site is affirmed.\\nSo ordered.\"}"

mass/117677.json

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+"{\"id\": \"117677\", \"name\": \"Commonwealth vs. Thomas C. Ford\", \"name_abbreviation\": \"Commonwealth v. Ford\", \"decision_date\": \"1997-04-11\", \"docket_number\": \"\", \"first_page\": \"709\", \"last_page\": \"713\", \"citations\": \"424 Mass. 709\", \"volume\": \"424\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:21:52.675162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Thomas C. Ford.\", \"head_matter\": \"Commonwealth vs. Thomas C. Ford.\\nWorcester.\\nDecember 5, 1996.\\nApril 11, 1997.\\nPresent: Wilkins, C.J., Abrams, Lynch, O\\u2019Connor, & Greaney, JJ.\\nBrian Cann, Assistant District Attorney, for the Commonwealth.\\nEric S. Brandt, Committee for Public Counsel Services, for the defendant.\", \"word_count\": \"1656\", \"char_count\": \"10300\", \"text\": \"Lynch, J.\\nThe defendant was charged in four indictments with assault with intent to kill (G. L. c. 265, \\u00a7 29), two acts of assault and battery by means of a dangerous weapon to wit: an automobile (G. L. c. 265, \\u00a7 15A), and possession of heroin (G. L. c. 94C, \\u00a7 34). A jury convicted the defendant on all indictments except the indictment charging assault with intent to kill. On that charge, the juiy convicted the defendant of simple assault, and the conviction was placed on file. See note 2, infra. In an unpublished memorandum and order under its Rule 1:28, the Appeals Court reversed the convictions, see 40 Mass. App. Ct. 1130 (1996), concluding that the judge erred in failing to require the Commonwealth to explain its peremptory challenge of the sole black member of the venire and, thereafter, in failing to undertake a meaningful evaluation of the reasons voluntarily proffered by the prosecutor to determine the sufficiency of the justifications advanced. We granted the Commonwealth's application for further appellate review. We also conclude that there must be a new trial, but without reaching the constitutional issues relied on by the Appeals Court.\\nFacts. The jury could have found the following facts. In December of 1992, police officers investigating drug activity in the Worcester area had the defendant under surveillance. In the course of this investigation the police attempted to stop the defendant's automobile on Interstate 495. After pulling over at the officers' signals, the defendant then accelerated his automobile, veered out to the left around one of the police vehicles, and drove toward the highway. The defendant's automobile struck one of the police officers and carried him into the middle lane of the highway; he was struck by another vehicle. A second officer testified that he also was struck by the defendant's vehicle. The defendant was then pursued, stopped, and arrested.\\nThe judge instructed the jury that, in order to find the defendant guilty of assault and battery by means of a dangerous weapon, the Commonwealth must prove that \\\"the defendant touched [the police officers], however slightly, without having any right or excuse for doing so. Secondly, that the touching was intentional in the sense that it was not accidental. Third, that the touching was done with a dangerous weapon.\\\" The judge then stated \\\"[i]t is not necessary that the defendant specifically intended to touch either [of the police officers]. It is only necessary \\u2014 and the Commonwealth must prove this to you beyond a reasonable doubt \\u2014 that he intentionally did the act which resulted in the touching as opposed to having done it accidentally\\\" (emphasis supplied). The emphasized portion of the instruction was essentially repeated in answering a question posed by the jury during deliberations. The defendant argues on appeal that the instructions on the \\\"mens rea\\\" element with respect to the assault and battery offenses failed to state the applicable law correctly. Defense counsel did not object to the charge on either occasion, however, and therefore we review under a substantial risk of a miscarriage of justice standard. See Commonwealth v. Claudio, 405 Mass. 481, 486 (1989); Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).\\nThis case presents us with substantially the same issue that was before the Appeals Court in Commonwealth v. Moore, 36 Mass. App. Ct. 455 (1994). In Moore, the Appeals Court noted that assault and battery may be proved using either of two theories. Id. at 459. See Commonwealth.v. Burno, 396 Mass. 622, 625 (1986); Commonwealth v. McCan, 277 Mass. 199, 203 (1931). Under the first theory, an assault and battery is \\\"the intentional and unjustified use of force upon the person of another, however slight.\\\" Commonwealth v. Burno, supra, quoting Commonwealth v. McCan, supra. Assault and battery may also be proved by the \\\"intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another.\\\" Commonwealth v. Burno, supra.\\nAs the Appeals Court correctly concluded in Commonwealth v. Moore, supra at 458-459, however, where, as here, the judge chooses not to instruct the jury under the wanton and reckless theory of assault, it is incorrect to instruct the jury that the defendant may be convicted on a finding that the defendant intentionally did the act which resulted in the touching. In order to convict the defendant under the intentional theory, the Commonwealth had to prove beyond a reasonable doubt that the defendant intended to commit an assault by means of a dangerous weapon, and having intended to commit the assault did touch the victim with the dangerous weapon. Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980). See Commonwealth v. Cataldo, 423 Mass. 318, 318-319 n.1 (1996); Commonwealth v. Moore, supra at 459 (intentional theory of assault and battery by means of dangerous weapon requires finding that touching or use of force was intentional). Because assault and battery by means of a dangerous weapon is a general intent crime, there is no requirement that the Commonwealth must prove the defendant had a specific intent to injure the victim. See Commonwealth v. Waite, 422 Mass. 792, 795 n.2 (1996); Commonwealth v. Appleby, supra at 307. To find the requisite intent, however, the jury must find beyond a reasonable doubt that the touching did not happen accidentally. See id. at 306; Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 585 (1991). It is not enough for the jury to find that the defendant intentionally did the act which resulted in the touching. Commonwealth v. Appleby, supra at 306 (assault and battery by means of dangerous weapon requires \\\"intentional, unjustified touching, however slight, by means of [a] dangerous weapon\\\").\\nMoreover, contrary to the Commonwealth's contention, the challenged portion of the instruction did more than instruct the jury that assault and battery by means of a dangerous weapon is a general intent crime. Rather, the instruction impermissibly lowered the Commonwealth's burden of proof regarding the mens rea element of the crime by instructing the juiy that all that was necessary for a guilty verdict was a finding that the defendant did an intentional act, the result of which was a touching of the victim. See Commonwealth v. Moore, supra at 457, 459.\\nSince the erroneous instruction was not objected to, we must consider whether it created a substantial risk of a miscarriage of justice. A portion of the charge correctly stated that the \\\"touching must be intentional in the sense that it was not accidental.\\\" The incorrect portion of the instruction, however, coupled with the correct portion of the instruction, rendered the charge as a whole confusing, for the charge confronted the jury with conflicting standards of intent. There is no way to know which of the two irreconcilable instructions the jurors applied in reaching their verdict. See Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987); Commonwealth v. Wood, 380 Mass. 545, 548 (1980); Commonwealth v. Goulet, 374 Mass. 404, 416 (1978). Therefore, because such confusion may have resulted in the jury convicting the defendant only on a showing that the defendant was intentionally driving the car and we are \\\"especially sensitive to this risk . . . where the instructions incorrectly defined the crimes,\\\" we conclude, as did the Appeals Court in Commonwealth v. Moore, supra at 459-460, where the same error was made, that a new trial is required. Commonwealth v. Goulet, supra. Because of this conclusion we need not consider whether the jury selection process violated art. 12 of the Declaration of Rights and the equal protection clause of the Fourteenth Amendment to the United States Constitution.\\nThe convictions of assault and battery by means of a dangerous weapon are reversed and remanded for a new trial.\\nSo ordered.\\nWhile the Appeals Court in Commonwealth v. Moore, 36 Mass. App. Ct. 455, 459-460 (1994), also concluded that the definition of general intent given by the judge should be avoided on retrial, the Appeals Court did base its decision to require a new trial on the erroneous instructions regarding assault and battery by means of a dangerous weapon. The Commonwealth's argument to the contrary is incorrect.\\nAlleged errors in the assault and battery by means of a dangerous weapon instruction would be dispositive because, although the defendant was also convicted of possession of heroin, he does not contest that conviction on appeal. Moreover, while the defendant was convicted of assault, that conviction was placed on file. A conviction placed on file \\\"suspend[s] for as long as the case remains on file, a defendant's right to appeal alleged error in the proceeding.\\\" Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.1 (1992), quoting Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Here, while the record does not reflect the defendant's affirmative assent to placing the conviction on file, when given the opportunity by the judge to object, the defendant did not do so. Thus we decline to reach potential constitutional issues solely for a conviction that was properly placed on file. Cf. Commonwealth v. Nowells, 390 Mass. 621, 629-630 (1983) (where conviction on filed indictment was subject to same weakness as convictions on which defendant was sentenced, court ordered that defendant be granted appropriate relief with regard to filed indictment even though it was assumed that defendant, who did not affirmatively assent to placing conviction on file, did consent to placing indictments on file); Commonwealth v. Delgado, supra (where defendant's consent to placing convictions on file was neither sought nor obtained, defendant entitled to consideration of merits of his claims of error regarding filed convictions). We note also that the defendant seems to concede that errors in the assault and battery by means of a dangerous weapon instruction would be dispositive.\"}"

mass/11923473.json

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+"{\"id\": \"11923473\", \"name\": \"John J. Nally v. James A. Brett et al\", \"name_abbreviation\": \"Nally v. Brett\", \"decision_date\": \"1994-05-16\", \"docket_number\": \"No. 91-2677-E\", \"first_page\": \"161\", \"last_page\": \"161\", \"citations\": \"2 Mass. L. Rptr. 161\", \"volume\": \"2\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:56:34.740734+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John J. Nally v. James A. Brett et al\", \"head_matter\": \"John J. Nally v. James A. Brett et al\\nSuperior Court, Middlesex, SS\\nNo. 91-2677-E\\nMemorandum Dated May 16, 1994\", \"word_count\": \"223\", \"char_count\": \"1343\", \"text\": \"Whitehead, J.\\nThe motion of the defendant Francis Glynn for summary judgment is allowed. The record is wholly insufficient to warrant a fact-finder in concluding that a partnership-in-fact existed between Mr. Brett and the defendant Glynn. With respect to the claim of a partnership by estoppel, the record would warrant a fact-finder in concluding that the defendant Glynn knew that his name was on the entrance to Mr. Brett's law offices and on the letterhead of \\\"Reed, O'Reilly and Brett,\\\" and even that he consented to such placement of his name. However, that is as much as the plaintiff can establish. Those circumstances are not sufficient to establish that the defendant Glynn held himself out as a partner of Mr. Brett. Accordingly, the first of the four elements of a partnership-by-es-toppel cannot be met. The defendant Glynn cannot be held liable for Mr. Brett's actions under principles of partnership law. See Brown v. Gerstein, 17 Mass.App.Ct. 558 (1984); Janjigian v. Ferraro and Walsh, 1 Mass. L. Rptr. No. 4, 86 (October 4, 1993).\\nSimilarly, because the plaintiff cannot establish that the defendant Glynn held himself out as a partner of Mr. Brett, Mr. Glynn has no liability to the plaintiff under G.L.c. 93A.\"}"

mass/11923517.json

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+"{\"id\": \"11923517\", \"name\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\", \"name_abbreviation\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc.\", \"decision_date\": \"1994-03-23\", \"docket_number\": \"No. 85-5521\", \"first_page\": \"165\", \"last_page\": \"166\", \"citations\": \"2 Mass. L. Rptr. 165\", \"volume\": \"2\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:56:34.740734+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\", \"head_matter\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\\nSuperior Court, Middlesex, SS\\nNo. 85-5521\\nMemorandum Dated March 23, 1994\\nBriggs Associates, Inc.; Reliance Insurance Company; and American Employers\\u2019 Insurance Company.\", \"word_count\": \"1470\", \"char_count\": \"9186\", \"text\": \"VOLTERRA, J.\\nBACKGROUND\\nThe City of Cambridge (City) is a municipal corporation who in 1982 retained the defendant Briggs Associates, Inc. (Briggs) to prepare a study to determine the extent of asbestos contamination in its public schools, prepare bid documents and specifications for a contract to remove asbestos from the schools, and to supervise and inspect the schools after the completion of the contract to insure compliance. The defendant Northeast Boiler, Insulation & Decking, Inc. (Northeast) was a corporation which engaged in the removal and disposal of asbestos insulation materials. Northeast is no longer in business. It has been substituted in this litigation by its bonding company, Reliance Insurance Company. Briggs is likewise not in business. It is substituted in this litigation by its bonding company, American Employers' Insurance Company.\\nCity claims that both Briggs and Northeast were negligent and in breach of their contractual obligations in City's project to remove asbestos from its public schools. City alleges that the defendants' breaches and negligence caused the City additional and unnecessary expense for the removal of other later discovered asbestos contamination in its schools.\\nAfter trial, I conclude that Briggs breached its contractual obligations with City, and that the American Employers' Insurance Company is liable on its bond. I also conclude that Northeast was not in breach of its obligations pursuant to the contract and that the defendant Reliance Insurance Company is not liable on its bond.\\nFINDINGS\\nThe City retained Briggs to inspect schools in Cambridge and provide a written report of its findings relative to the presence of asbestos. On November 19, 1982, Briggs provided City with a written report on asbestos in the schools. The report respecting the Fitzgerald School is silent as to any testing in the crawl space area of the school.\\nCity by a contract dated April 19, 1983 retained Briggs to provide contract management services for the sum of $13,115.00 for asbestos removal from various schools, including the Fitzgerald School. An assistant superintendent of schools directed Briggs to establish 0.01 fibers/cm3 as the standard to be adhered to by the asbestos removal contractor. This required that after final clean up the ambient air in any area of the schools would be a concentration of less than 0.01 fibers per cubic centimeter of air.\\nBriggs prepared the specifications for the work of removing asbestos from the schools of the city. The specifications were the basis for the bid documents used by City to solicit bids for the work.\\nThe work required to be performed at the Fitzgerald School was described in pertinent part as follows:\\nFitzgerald School\\n1.2 REMOVAL AND DISPOSAL\\n1.2.2 Description of Work:... The asbestos work includes the demolition and removal of all asbestos insulation in boiler room (excluding boiler) and pipe insulation throughout the building, including basement/crawl space . . . [Emphasis supplied.]\\nThe Fitzgerald School was constructed in the 1940s. The crawl space is located beneath the first floor of the school. It has approximately 20,000 square feet of area. The floor is composed of loose sand material. An adult can walk upright in the crawl space. Under the school's first floor and within the crawl space are various plumbing and heating lines of the building's mechanical systems. The pipes were insulated with asbestos materials.\\nCity made various repairs and alterations to the mechanical systems contained within the crawl space. Insulation was discarded and replaced as a result of this maintenance.\\nAsbestos was not generally recognized as a hazardous material until the 1970s. Prior to the 1970s, no precautions were engaged in by applicators and maintenance personnel. Scraps of asbestos would be discarded in areas such as crawl spaces, attics and the like. The material was sometimes buried and covered over by earth or sand in cellars and crawl spaces. Only large pieces would be removed. Small scrap was often buried or raked over.\\nBriggs negligently failed to identify the buried and covered-over asbestos in the crawl space on the crawl space floor of the Fitzgerald School.\\nThe specifications drawn by Briggs and adopted by City limited the areas of the work to \\\"insulation in boiler room (excluding boiler)\\\" and \\\"pipe insulation throughout the building.\\\" No requirement was made for asbestos removal from the crawl space sand floor. This was the case although it could have been inferred that after 30 years of maintenance to the mechanical systems of the school asbestos would have been discarded into the sandy surface of the earthen floor.\\nAfter Northeast completed the work at the Fitzgerald School, testing of the ambient air of the crawl space revealed that it fell within the less than 0.01 of fiber per cubic centimeter of air. I find that Northeast took appropriate care to protect the crawl space area from contamination with asbestos material by the placement of plastic drop cloths under the areas in which they worked or through the use of other techniques which avoided material falling to the ground.\\nNortheast certified to Cily on September 15,1983 that it had completed its contractual obligations. Thereafter, City's employees began to reinsulate the plumbing and heating pipes in the Fitzgerald School crawl space. City's employees by necessity disturbed the soil floor of the crawl space. I find that this activity caused the material which had been buried in the soil to surface. At City's request, Briggs reinspected the crawl space area to determine if asbestos was still present.\\nOn December 6, 1983, Briggs reported to City that crumbs of asbestos was present in piles of debris. The letter from Briggs to City stated:\\nFitzgerald School: A survey of the sand-floored crawl space revealed piles of debris which contains crumbs of asbestos insulation as well as other scraps of wood and refuse. Small crumbs of asbestos were also found scattered across the sand floor in the area of the pipes.\\nBriggs informed City that it was suspending its September 9, 1983, certificate of final inspection.\\nNortheast, at City's demand, returned to the crawl space area to inspect and rectify the problem. Northeast agreed to rake the surface to remove any visible crumbs of asbestos and the small piles of debris that had been raked into piles.\\nNortheast refused to excavate the floor or take any other remedial activity.\\nOn March 1, 1984, Briggs advised City that Northeast's recleaning of the crawl space area at the Fitzgerald School had been \\\"most generous . . . since the original clean air samples showed no signs of contamination nor have any re-evaluations revealed elevated fiber counts.\\\"\\nCity, in 1985, filed this action to recover damages for the alleged failures of Briggs and Northeast. However, it was not until 1990 when City entered into a contract with another asbestos removal contractor to remove the soil in the crawl space to a depth of six inches and then encapsulate the crawl space area with concrete. This work was to cost in excess of $74,000. This contractor discovered the existence of asbestos material extended up to nine inches below the surface.\\nRULINGS\\nI rule that Northeast fully performed its contractual obligations as specified by the contract. I rule that there was no breach of contract by Northeast. Accordingly, the defendant Reliance Insurance Company has no obligation to City under its performance bond.\\nI rule that Briggs was negligent in the duty of care it owed City, and that the failure of Briggs to properly inspect the crawl space soil at the Fitzgerald School to determine the presence of asbestos material proximately caused the damages which were sustained by City. The failure of Briggs extends to the lack of appropriate specifications for the removal of the material from the crawl space. City had a right to rely on the engineering skills and expertise of Briggs to detect the presence of asbestos material. The lack of due care on the part of Briggs in drawing appropriate specifications led directly to the failure of the City to draft bid documents which would have required the excavation and encapsulation of soil in the crawl space of the Fitzgerald School.\\nThus, I rule that the American Employers' Insurance Company is liable on its bond for the full face amount of its bond in the sum of $3,200.00.\\nAccordingly, the plaintiffs complaint against Reliance Insurance Company is dismissed, and judgment is to enter for the plaintiff against the American Employers' Insurance Company in the sum of $3,200.00 plus interest from September 16, 1985.\\nORDER FOR JUDGMENT\\nFor the foregoing considerations, the plaintiffs complaint against Reliance Insurance Company is ordered DISMISSED without costs, and judgment is to enter for the plaintiff City of Cambridge in the sum of $3,200.00 plus interest from September 16, 1985, and costs.\"}"

mass/12535350.json

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+"{\"id\": \"12535350\", \"name\": \"NATIONAL LUMBER COMPANY v. Matthew L. FINK.\", \"name_abbreviation\": \"Nat'l Lumber Co. v. Fink\", \"decision_date\": \"2018-03-22\", \"docket_number\": \"17\\u2013P\\u2013386\", \"first_page\": \"768\", \"last_page\": \"768\", \"citations\": \"103 N.E.3d 768\", \"volume\": \"103\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-27T21:02:24.483485+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"NATIONAL LUMBER COMPANY\\nv.\\nMatthew L. FINK.\", \"head_matter\": \"NATIONAL LUMBER COMPANY\\nv.\\nMatthew L. FINK.\\n17-P-386\\nAppeals Court of Massachusetts.\\nEntered: March 22, 2018\\nMEMORANDUM AND ORDER PURSUANT TO RULE 1:28\", \"word_count\": \"1837\", \"char_count\": \"11303\", \"text\": \"This is an appeal from the summary judgment dismissing National Lumber Company's (National Lumber's) claims against the defendant, Matthew L. Fink. Viewed in the light most favorable to National Lumber, against which summary judgment entered, the summary judgment record reveals the following:\\nIn August of 2007, MFN LLC (MFN), owned in part by Nicholas Sivieri, signed a credit agreement with National Lumber to purchase lumber and building materials. In August of 2008, Fink, who was not a member of MFN or otherwise affiliated with it, signed an agreement guaranteeing MFN's debts to National Lumber. In July of 2009, MFN executed a material supply purchase agreement with National Lumber to purchase building materials to be used to construct a residential dwelling known as the \\\"Hajjar project.\\\" From July, 2009, until April 26, 2010, MFN purchased said materials from National Lumber for the Hajjar project and submitted multiple \\\"change orders,\\\" which added to and subtracted from the list of building materials outlined in the material supply purchase agreement.\\nOn April 26, 2010, MFN, through Sivieri, filed a certificate of cancellation with the Secretary of State. That same day, Sivieri filed a certificate of organization for a new company, NAS Development LLC (NAS). According to Sivieri's deposition testimony, MFN was dissolved and NAS formed because the other members of MFN had moved to Brazil.\\nAfter MFN was dissolved, Sivieri continued to work uninterrupted on the Hajjar project, ordering building materials and submitting additional change orders. The balance with National Lumber as of September 30, 2010 was (at least as Fink views it) paid in full by October 7, 2010. Sivieri signed three subsequent change orders, change orders 16, 17, and 18, in October, 2010. The last two deliveries pursuant to these change orders occurred in October and November of 2010. MFN did not pay for these materials, and this nonpayment is the subject of this litigation.\\nThe parties dispute what, if anything, Sivieri told any National Lumber employee, before National Lumber had made its final deliveries, with respect to NAS and MFN. According to National Lumber's chief executive officer, Steven Kaitz, though, whose claims we must credit at the summary judgment stage, National Lumber did not know of MFN's dissolution until after this litigation commenced. After MFN's dissolution, Sivieri did begin to communicate with National Lumber employees using his NAS electronic mail (e-mail) account, and there is some evidence that invoices for the relevant materials were sent to him at the NAS address. However, he also sent e-mails from this account to his and his assistant's MFN e-mail addresses, and he and his assistant replied to e-mails that were sent to their MFN addresses. Furthermore, change orders 16, 17, and 18-all signed in October of 2010-by their terms state that Sivieri was signing on behalf of MFN.\\nAnalysis. Viewing the evidence in the summary judgment record and the reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, here National Lumber, summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). Our review of the record is de novo. Ibid.\\nThe motion judge granted Fink's motion for summary judgment on two independent grounds. First, she held that, \\\"once MFN was dissolved and National Lumber began to do business with NAS, of which there is ample evidence, Fink was no longer the guarantor of MFN's debts.\\\" We read this to mean that, as a matter either of law or of undisputed fact, once MFN was dissolved, National Lumber stopped doing business with MFN and started doing business with NAS, and therefore, since Fink was not a guarantor for NAS, Fink could not be liable for any of the postdissolution debts. But, as our discussion of the evidence makes clear, there is also ample evidence from which a jury could infer that National Lumber was doing business with MFN postdissolution. This fact is material, and genuinely disputed, and the judge should not have granted summary judgment on this ground. Whether the change orders were really submitted on behalf of NAS, the course of conduct between the parties, the knowledge of National Lumber, the nature of \\\"change orders\\\" like those at issue here, and other circumstances surrounding the transactions will have to be explored at trial.\\nThe judge's second ground for granting summary judgment to Fink draws from the law governing what LLCs are permitted to do postdissolution. Even after dissolution, an LLC may continue to do business in a limited form:\\n\\\"Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company's business, disposing of and conveying the limited liability company's property, discharging or making reasonable provision for the limited liability company's liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability on a liquidating trustee.\\\" G. L. c. 156C, \\u00a7 45(b ), as appearing in St. 2014, c. 371, \\u00a7 1.\\nPostdissolution acts that are not \\\"winding up\\\" activity are ultra vires. See Salvato v. DiSilva Transp. Co., 329 Mass. 305, 308 (1952).\\nApplying these principles, the motion judge reasoned as follows: \\\"Even if National Lumber could prove that the change orders were part of the original contract,\\\" she wrote-meaning that the change orders were part of a contract between National Lumber and MFN so that National Lumber was in fact doing business with MFN, not NAS-\\\"the continuation of such business as the LLC was organized for after its dissolution is not considered part of winding up.\\\" That is, she concluded as a matter of law that this was not \\\"winding up\\\" activity, and that, if Sivieri had entered these change orders on behalf of MFN, he was acting ultra vires and, as a matter of law, while Fink would have been liable for proper winding up activity, he could not be liable for Sivieri's ultra vires actions.\\nTo begin with, the factual record is insufficiently developed to support the motion judge's conclusion that this was not winding up activity within the meaning of the statute. National Lumber argues that the change orders were anticipated modifications of an underlying agreement obligating MFN to complete further purchases from National Lumber. If the change orders were anticipated modifications of the original agreement, this may be relevant to whether submitting them was winding up activity, as it might mean that the activity is properly characterized as \\\"gradually settling and closing the limited liability company's business . [or] discharging or making reasonable provision for the limited liability company's liabilities .\\\" G. L. c. 156C, \\u00a7 45(b ). There is, however, insufficient evidence in the record to allow us to determine what the nature of these change orders is, what the status of the Hajjar project was, and thus whether under the applicable standard submitting the change orders amounts to winding up activity; there are thus genuine issues of fact about the matter that must be resolved. Thus, the motion judge erred in granting summary judgment on this ground as well.\\nBeyond this, the motion judge concluded that if MFN's acts were ultra vires, Fink would be able to raise this as a defense. National Lumber challenges this assumption. It argues first that the terms of the guaranty agreement preclude Fink from raising a defense not available to MFN, and that MFN would have no ultra vires defense because it benefited from the change orders. See Nowell v. Equitable Trust Co., 249 Mass. 585, 602 (1924) (corporation cannot avail itself of ultra vires defense when other party has performed its contractual obligations in good faith and corporation received benefit of performance). In a footnote, the judge rejected the proposition that MFN would have no ultra vires defense because it benefited from the change orders:\\n\\\"National Lumber argues that MFN cannot accept the benefits of the change order contracts, the 'additional materials,' and then set up a valid ultra vires defense to escape liability thereon. See Commissioner of Banks v. Tremont Trust Co., 259 Mass. 162, 180 (1926). After the dissolution of MFN, however, National Lumber was doing business with Sivieri; MFN did not accept the benefits of the change order contracts.\\\"\\nThis analysis is erroneous because, for the reasons given above, it relies upon a disputed material fact: that National Lumber was not doing business with MFN upon dissolution. If the change orders were made on behalf of MFN, MFN likely got the benefit of National Lumber's performance. If this is the case, and if National Lumber's interpretation of the guaranty agreement is correct, then Fink would have no ultra vires defense. Since a trial on the disputed material fact is warranted in any event, we leave it up to the trial judge to consider the contract-based argument in the first instance.\\nNational Lumber also argues that, as a matter of the law of suretyship, Fink could not raise ultra vires as a defense even if it could be raised by MFN. See Winn v. Sanford, 145 Mass. 302, 303-304 (1887) (surety cannot raise defenses \\\"personal\\\" to principal obligor, such as incapacity, even if principal obligor could raise such defense); Matter of L & S Indus., Inc., 989 F.2d 929, 934 (7th Cir. 1993) (ultra vires is personal defense that cannot be raised by surety); Restatement (Third) of Suretyship and Guaranty, \\u00a7 34(1)(b) (1996) (surety cannot raise incapacity as defense even if available to principal obligor). Again, we leave it for the trial judge to consider this argument in the first instance.\\nThe summary judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.\\nSo ordered.\\nReversed and remanded.\\nThe plaintiff's claims against the other two defendants, Nicholas A. Sivieri and MFN LLC, were resolved by a default judgment and are not the subject of this appeal.\\nNational Lumber did not appeal from the denial of its cross motion for summary judgment.\\nWe do not read this to mean that, as a matter of law, had MFN been winding up its business, as allowed by the statute, see infra, Fink would not have been its guarantor-the motion judge correctly indicated elsewhere that he would have been.\\nIndeed, depending on the circumstances it might be possible to view the change orders that way even if they are new contracts, necessary to finish the work on the outstanding project as part of winding up MFN's business.\"}"

mass/18323.json

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+"{\"id\": \"18323\", \"name\": \"William T. Janvrin & others, petitioners\", \"name_abbreviation\": \"Janvrin\", \"decision_date\": \"1899-11-28\", \"docket_number\": \"\", \"first_page\": \"514\", \"last_page\": \"521\", \"citations\": \"174 Mass. 514\", \"volume\": \"174\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:03:43.171514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William T. Janvrin & others, petitioners.\", \"head_matter\": \"William T. Janvrin & others, petitioners.\\nSuffolk.\\nMarch 24, 27, 1899.\\nNovember 28, 1899.\\nPresent: Holmes, 0. J., Knowlton, Morton, Lathrop, Barker, Hammond, & Loring, JJ.\\nMetropolitan Water Supply \\u2014 Water Rates \\u2014 Constitutional Law.\\nThe provisions of \\u00a7 23 of St. 1895, c. 488, entitled \\u201c An Act to provide for a metropolitan water supply,\\u201d as amended by St. 1897, c. 336, giving to actual water takers within ten miles of the state house of the city of Boston aggrieved by the rate charged or about to be charged, the right to apply to the court to determine the reasonableness of the rate and what rates are reasonable so far as the interests before the court are concerned, is constitutional. .\\nPetition, filed October 11, 1898, by the selectmen of Revere, a town within a radius of ten miles from the state house in Boston, and within the metropolitan water district as designated by St. 1895, c. 488, entitled \\u201c An Act to provide for a metropolitan water supply.\\u201d\\nThe petition alleged that within Revere, a corporation known as the Revere Water Company was engaged in the business of supplying the inhabitants thereof with water for domestic and other purposes; that the rates charged to the inhabitants by that company for water supplied for domestic and other purposes was unreasonable, exorbitant, and greatly disproportionate to the prices ordinarily charged for a similar service in the other cities and towns within said metropolitan water district.\\nThe prayer was that the court would fix the rate to be charged by the company for water supplied to the inhabitants of Revere at a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within the metropolitan district.\\nThe Revere Water Company, which had been summoned to appear, demurred, assigning as grounds therefor: 1. That the petition did not contain any matter of law or equity whereon the court could ground any decree, or give to the petitioners any relief against the defendant. 2. That the jurisdiction of the court over the matters contained in the petition depended upon the validity of the provisions of St. 1897, c. 336, and that that statute was unconstitutional and void.\\nHearing before Hammond, J., who reserved the case for the consideration of the full court.\\nThe case was argued at the bar in March, 1899, and after-wards was submitted on briefs to all the justices.\\nS. R. Cutler, (B. B. Dewing with him,) for the petitioners.\\nB. N. Johnson, for the Revere Water Company.\", \"word_count\": \"2866\", \"char_count\": \"16190\", \"text\": \"Holmes, C. J.\\nThe only question raised by the demurrer is the constitutionality of the provision of St. 1897, c. 336, \\u00a7 1, under which the petitioners proceed. This section amends \\u00a7 23 of the Metropolitan Water Supply Act, St. 1895, c. 488. It embodies a scheme which forbids cities or towns within ten miles of the state house to use water for domestic purposes, from any source not now used by them, except under the statute. This prohibition standing alone might seem to put into the hands of a water company now supplying any such town or city the power to make exorbitant charges, by giving it a monopoly. Therefore, with a view, no doubt, of dealing with the danger, the section just referred to provides as follows: \\\" The selectmen of a town, or any persons deeming themselves aggrieved by the price charged for water by any such company may, in the year eighteen hundred and ninety-eight and every fifth year thereafter, apply by petition to the Supreme Judicial Court, asking to have the rate fixed at a reasonable sum, measured by the standard above specified; and two or more judges of said court, after hearing the parties, shall establish such maximum rates as said court shall deem proper; and said maximum rates shall be binding upon said water company until the same shall be revised or altered by said court pursuant to this act.\\\"\\nWhen we first read this sentence the impression of some of us was that it was an attempt to make out of this court a commission for the taking of one step in fixing a legislative rule of future conduct, irrespective of any present relation between the parties concerned, and that it was no more competent for the Legislature to impose or for us to accept such a duty than if the proposition were to transfer to us the whole law-making power. See Smith v. Strother, 68 Cal. 194. But upon further reflection it seems to a majority of the court that the act can be sustained. If we can do so without perverting the meaning of the act, we are bound to construe it in such a way that it will be consistent with the Constitution, and we think that this can be done without any wresting of the sense, even if we should \\u2022 doubt, which we do not intimate that we do, whether the Legislature had the limit of its power distinctly in mind.\\nThe statute goes upon the footing that every taker of water from the companies in question has a right to be furnished with water at a reasonable rate. No one questions the power of the Legislature to require these water companies to furnish water to the takers at reasonable rates, (Attorney General v. Old Colony Railroad, 160 Mass. 62, 86, 87 ; Spring Valley Water Works v. Schottler, 110 U. S. 347, 354 ; Budd v. New York, 143 U. S. 517, 537, 549, 552,) and this statute does require the companies to do so, and thereby gives to water takers a correspond ing right, or declares that they have it. It is with the relations between actual water takers and the companies that the statute calls on this court to deal. It does not undertake merely to make of the court a commission to determine what rule shall govern people who are not yet in relation to each other, and who may elect to enter or not to enter into relations as they may or may not like the rule which we lay down: it calls on us to fix the extent of actually existing rights. With regard to such rights judicial determinations are not confined to the past. If it legitimately might be left to this court to decide whether a bill for water furnished was reasonable, and, if not, to cut it down to a reasonable sum, it equally may be left to the court to enjoin a company from charging more than a reasonable sum in the immediate future.\\nBut it has been regarded as competent for a court to pass on the reasonableness of a rate even when established by the Legislature, to the extent of declaring it unreasonably low. Chicago, Milwaukee, & St. Paul Railway v. Minnesota, 134 U. S. 418. Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339, 344. Reagan v. Farmers' Loan Trust Co. 154 U. S. 362. Smyth v. Ames, 169 U. S. 466. A fortiori, when the rate is established by the company and it has undertaken to charge the plaintiff a sum which he alleges to be unreasonable, and the Legislature in terms has referred him to this court, this court has \\\" jurisdiction to inquire into that matter and to award to the [plaintiff] any amount exacted from him in excess of a reasonable rate.\\\" Reagan v. Farmers' Loan & Trust Co. 154 U. S. 362, 397.\\nIt is true that in Reagan v. Farmers' Loan & Trust Co. it was said, also, that \\\" it is not the function of the courts to establish a schedule of rates,\\\" 154 U. S. 400 ; and to that proposition we fully agree. But it will be observed that the proposition is laid down in connection with the statement that \\\" the challenge in this case is of the tariff as a whole, and not of any particular rate upon any single class of goods.\\\" Probably to prepare a new schedule, or to rearrange the old one, would have gone beyond the scope of the rights immediately affected or threatened in the case before the court, into the realm of abstract law making- for the future, and so beyond the power of the court; and,if it had not been beyond the court's power, still very possibly it might have been refused in the court's discretion, the court leaving it to the proper body to undertake that task. But it is implied that if the challenge had been of a single rate threatened to be charged for a service demanded, the court might have determined the question between the parties for the immediate future, as it is stated three pages earlier that the court would determine it with regard to a charge for past services. When you are prepared to say that a given charge is \\u2022 too high or too low, it hardly would be consistent to say that you had not power or ability to say what is a proper charge.\\nIt is true that the phrase \\\" shall establish such maximum rates as said court shall deem proper,\\\" and the following provision that such \\\"maximum rates shall be binding upon said water company until the same shall be revised or altered by said court,\\\" etc.; suggest that the Legislature had in mind the establishment of a rate to be charged to all parties for the use of water for domestic purposes, and not merely a rate to be charged the petitioner. It may be that the former was the main object which the Legislature had in mind. But although we cannot doubt that the meaning of the words last quoted is that the rate shall be binding as a general rate, even that is not said distinctly, and we feel bound to assume in support of the act that the Legislature is dealing primarily with the rights of the party aggrieved before the court, and only secondarily adopts in advance the rate thus fixed between the parties as a general rate for all. If this is so, the question whether such a legislative consequence can be attached to the decision is not before us. Even if it should fail, the failure would not necessarily affect the constitutionality of sending \\\" persons deeming themselves aggrieved \\\" to this court to get their rights settled. But as it is not likely that a rate thus established for a given moment after full investigation would be departed from upon the application of a second person similarly circumstanced, it may be questioned whether there is anything to prevent the Legislature from sanctioning without further hearing a rate which once has been declared judicially to be reasonable. It is to be remarked in this connection that the decisions which we have cited for the proposition that the Legislature may require rates to be reasonable, establish the further proposition that the Legislature may fix what the rates shall be, subject only to judicial inquiry whether they are so unreasonably low as to deprive the company of its property without due compensation.\\nIt will be understood from the reasoning on which we sustain the act that the court would not regard itself as warranted or called on to undertake the fixing of rates except so far as they concern interests actually and legitimately before the court.\\nThe liberty to apply to this court is confined to the year 1898 and every fifth year thereafter, so that seemingly it is contemplated that the rate when fixed will remain unchanged for five years. This is another indication that the Legislature had its attention directed to the establishment of a general rate. But supposing a party aggrieved should obtain an injunction, obviously the decree would be drawn so as to bind the defendant for a reasonable time, or, if it were drawn in the common form, subject to review on a change of circumstances, the court would not be likely to grant leave to file a bill of review until a reasonable time had elapsed, and if the Legislature should say that in these cases five years was a reasonable time, we could not say that it was wrong. It is true that the party aggrieved is not given an injunction in terms by the act, and this is another peculiarity in the procedure, looking as it does to a decree affecting the future. Of course it is assumed, and no doubt rightly, that a company would not venture to disregard the decree. But if a company should prove recalcitrant, in case such disregard should not be construed as ipso facto a contempt, undoubtedly the decree could be enforced by injunction.\\nThere is still one more peculiarity in the statutory proceedings which adds a little to the difficulty of the question before us. We have construed the statute to deal primarily with existing rights and grievances. But the proceedings are given to \\\"the selectmen of a town, or any persons deeming themselves aggrieved.\\\" So far as the alternative mention of the selectmen should be used as an argument that the primary purport of the act was not to deal with present rights, we should answer that it does not appear that the towns within the ten mile radius do \\u2022not all of them take water in their corporate capacity, and if it was assumed by the Legislature that they did, as they probably do, the argument would lose its force.. It may be that the Legis lature thought of the selectmen rather as representing the whole body of water takers in the town. Whether they could be made compulsory agent's to represent private interests in that way it is not necessary to inquire. We may add that we understand the demurrer to be intended to raise the single question of constitutionality, and therefore we do not consider whether the petition in strictness ought not to show that the town or whoever may be represented by the petitioning selectmen is a water taker, and, in short, disclose enough to make out a present grievance. If there is any defect of form, which we do not intimate, probably it could be amended.\\nOne question remains. The fixing of a reasonable rate is not left at large to the court. The rate is to be \\\"a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within said metropolitan district.\\\" Of course it is argued that this is an.attempt to let one company fix a price for another. To a certain extent the standard runs in a circle, since the price charged by water companies in the other towns within ten miles of Boston also may come before this court for revision. But leaving that consideration on one side, it is evident that the Legislature regarded the cities and towns referred to as constituting a class; and while a mere accumulation of instances is not evidence of what is reasonable, the general practice in the class to which a case belongs stands on a different footing, and if the circumstances are sufficiently similar may be instructive. See McMahon v. McHale, ante, 320; Veginan v. Morse, 160 Mass. 143, 148.\\nAs has been said, the cases establish the power of the Legislature to fix rates, subject to the qualification that they shall not be unreasonably low. It cannot be assumed on demurrer, as against the implied opinion of the Legislature, that the circumstances are not similar, or that all the prices in the ten mile circuit will be unreasonable. If in the opinion of the court at any time they should be so, no doubt in that event it would be bound to disregard the standard of comparison set for it by the act. The governing requirement is that the price should be reasonable. But, especially in view of the fact that companies furnishing the standard have before them the possibility of a petition like the present, such a possibility is not to be feared.\\nIt is suggested that the duty to be done by the court sitting with two justices, under this statute, calls for an investigation of details and the consideration of matters of administration which cannot properly be required of the Supreme Judicial Court. If an extended investigation of accounts or an examination of minute details is necessary in the hearing upon this petition, it will be in the power of the court to appoint a master, in accordance with the practice of the court in equity, to hear the parties and report the facts. The statute authorizes a novel proceeding not known to the common law. It does not say whether it shall be deemed a proceeding at law or a proceeding in equity. In some particulars it is more nearly analogous to suits in equity than to suits at law. It is a judicial investigation in aid of a legislative regulation. In actions at law, when accounts are involved, an auditor may be appointed. The Legislature must be presumed to have intended that the court should have the assistance of a master when needed in hearing such matters as have always been heard by masters under the equity practice of the court.\\nDemurrer overruled.\"}"

mass/192277.json

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+"{\"id\": \"192277\", \"name\": \"Elvis Hernandez v. Commerce Insurance Company\", \"name_abbreviation\": \"Hernandez v. Commerce Insurance\", \"decision_date\": \"2000-09-25\", \"docket_number\": \"No. CA000923G\", \"first_page\": \"307\", \"last_page\": \"308\", \"citations\": \"12 Mass. L. Rptr. 307\", \"volume\": \"12\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:21:51.595004+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elvis Hernandez v. Commerce Insurance Company\", \"head_matter\": \"Elvis Hernandez v. Commerce Insurance Company\\nSuperior Court, Suffolk, SS\\nNo. CA000923G\\nMemorandum Dated September 25, 2000\", \"word_count\": \"1124\", \"char_count\": \"7101\", \"text\": \"Fremont-Smith, J.\\nThis matter, which was before the court on September 8, 2000, is a petition, by the plaintiff Elvis Hernandez (\\\"Hernandez\\\"), seeking to compel arbitration of his claim for bodily injury caused by an uninsured vehicle. The defendant, Commerce Insurance Company (\\\"Commerce\\\"), opposes arbitration, and has filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6) on the ground that the plaintiff has failed to state a claim upon which relief can be granted. For the reasons stated below, defendant's motion to dismiss is DENIED and the defendant is hereby ORDERED to proceed to arbitration.\\nBACKGROUND\\nThe case arises out of a motor vehicle accident on August 3, 1997, when Hernandez was a passenger in a motor vehicle driven by his friend, Tony Guzman (\\\"Guzman\\\"). The vehicle was struck by another car on Columbia Road, Dorchester, Massachusetts. Hernandez alleges he sustained personal injuries as a result of the accident, which he alleges was a \\\"hit-and-run.\\\" Commerce contends that the accident was not a hit-and-run, but that the insured (Guzman) vehicle was pulling out of a parking space when another vehicle, whose driver has been identified, collided with Guzman's vehicle causing personal injuries and damages.\\nHernandez applied to Commerce to recover uninsured benefits pursuant to Guzman's insurance policy. On February 3, 1998 and September 20, 1999, Commerce denied Hernandez's claim on the grounds that there was insufficient evidence of whether the accident was a covered loss and.that Hernandez had breached the cooperation clause of the insurance policy by making material misrepresentations during the investigation and failing to submit to two medical examinations. Commerce also alleges that the other vehicle involved in the accident was not uninsured and unidentifiable, as the plaintiff contends, but rather the owner of the vehicle was identified through Commerce's investigation and insured with Horace Mann Insurance Company.\\nStandard of Review\\n\\\"When evaluating the sufficiency of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), the court must accept as true the well-pleaded factual allegations of the complaint, as well as any inference which can be drawn therefrom in the plaintiffs favor.\\\" Fairney v. Savogran Co., 422 Mass. 469, 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). \\\"A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\" Nader v. Citron, 371 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).\\nDISCUSSION\\nA party aggrieved by the failure or refusal of another to proceed to arbitrate under an agreement may apply to the Superior Court for an order directing the parties, to proceed to arbitration. G.L.c. 251, \\u00a72(a). \\\"[A] provision in a written contract to submit to arbitration any controversy thereafter arising . . . shall be valid, enforceable, and irrevocable, except upon the grounds that exist at law or in equity for the revocation of any contract.\\\" G.L.c. 251, \\u00a71. In order for a person to be compelled to arbitrate a dispute under a contract containing an arbitration clause, both persons must be a party to that contract. See Computer Corp. of America v. Zarecor, 16 Mass.App.Ct. 456, review denied, 390 Mass. 1103 (1983). The insurance contract provides: \\\"ftjhe determination as to whether an injured person is legally entitled to recover damages from the legally responsible owner or operator will be by agreement between us and the injured person. The amount of damages, if any, will be determined in the same way. Arbitration will be used if no agreement can be reached.\\\" Massachusetts Automobile Insurance Policy 6th Ed., at 9. The statute similarly provides: \\\"(wlhether the insured or his legal representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the insurer or, if they fail to agree, by arbitration.\\\" G.L.c. 175, \\u00a711 ID. Commerce is clearly a party to the contract and Hernandez, as a passenger in the vehicle of the insured, is an intended beneficiary of the contract.\\nDefendant cites Lumbermens Mutual Cas. Co., v. Malacaria, 40 Mass.App.Ct. 184, 188-89 (1996), for the proposition that only damages questions, but not coverage questions, are arbitrable. There, the Court said:\\nIn plain terms, this provision commits to arbitration the determination whether an injured party such as Nancy Malacaria can recover damages under the policy from the operator of another vehicle, and, if so, the amount of damages. These matters typically involve factual determinations of relative or comparative fault, and the extent of injuries proximately caused by the other motorist's fault. By contrast, the provision does not contemplate that legal questions involving the insurer's possible liability to the insured under the policy will be determined through arbitration.. Hence, we do not think that Lumbermens was contractually bound by its policy to submit to arbitration a coverage question, such as the one here presented.\\nBut the court's statement must be understood in the context of the coverage dispute in that case, which involved a purely legal coverage question whether the exclusion clause contained in the policy prevented the \\\"stacking\\\" of additional policies, and did not turn, as here, on disputed factual issues. Here Commerce admits that coverage was denied based on fraudulent conduct, lack of cooperation, as well as and whether there was a hit-and-run operator who can not be identified, all of which are disputed issues of fact. In cases where coverage has turned on factual issues, such as are raised in this case, rather than on the scope and meaning of the policy or of the statutes, Massachusetts courts have held that the proper forum is arbitration. See Employers' Fire Ins. Co. v. Garney, 348 Mass. 627, 631-632 (1965); Allstate Insurance Co. v. Harris, 26 Mass.App.Ct. 1017, 1019 (1989). This court does not read Malacaria to change the rule enunciated in these cases.\\nORDER FOR JUDGMENT\\nFor the foregoing reasons, it is hereby ORDERED that the plaintiffs complaint for the appointment of an arbitrator is ALLOWED, and the defendant's motion to dismiss is DENIED. Final judgment is to enter in favor of the plaintiff ordering Commerce Insurance Company to submit to arbitration.\\n\\\"After an accident or loss, you or anyone else covered under this policy must cooperate with us in the investigation, settlement and defense of any claim or lawsuit.\\\" Massachusetts Automobile Insurance Policy, at 32.\\nThe coverage includes \\\"bodily injuiy to people injured or killed in certain accidents caused by uninsured or hit-and-run autos . . . We will pay for hit-and-run accidents only if the owner or operator causing the accident cannot be identified.\\\" Massachusetts Automobile Insurance Policy 6th Ed., at 7.\"}"

mass/1978398.json

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+"{\"id\": \"1978398\", \"name\": \"Luther Barnard vs. Zebadiah Graves\", \"name_abbreviation\": \"Barnard v. Graves\", \"decision_date\": \"1847-09\", \"docket_number\": \"\", \"first_page\": \"85\", \"last_page\": \"96\", \"citations\": \"13 Met. 85\", \"volume\": \"54\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:45:36.828050+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Luther Barnard vs. Zebadiah Graves.\", \"head_matter\": \"Luther Barnard vs. Zebadiah Graves.\\nA warrant to collect taxes, issued by assessors to a collector, does not authorize him. to collect a tax by distress, unless it is accompanied with a tax list; but it is not necessary that the tax list should be annexed to the warrant.\\nThough a warrant to a collector erroneously direct him, for want of goods or chattels, whereon to make distress, for the space of twelve days after demanding payment, (instead of fourteen days, as directed by the Rev. Sts. e. 8, \\u00a7 11,) to take the body, &c., yet if the warrant be in other respects sufficient, this error therein will not vitiate it, so as to render illegal a distress made by virtue of it, if, in making the distress, the warrant be executed according to law.\\nUnder the Rev. Sts. c. 8, \\u00a7 8, a collector of taxes, who distrains goods, may post a notification of the sale thereof before the expiration of four days after the seizure. The return made by a collector, on his warrant, of his doings in making a distress for taxes, is so far an official act, as to be prima facie evidence in his favor, on the trial of an action against him for making the distress: And a demand by him of payment of a tax, before he made distress for it, may.be shown by his return. In a collector\\u2019s return of his doings on a distress for a tax, he stated that he dis-trained a horse on the 6th of April, and on the 7th of April posted up a notification, at the B. B. House in D., of- said distress, and of his intention to sell said horse at public auction at said house on the 11th of April; that he kept the horse four days and more, and posted up said notification more than forty eight hours before the sale, and sold the horse, within seven days after the seizure, at public auction, at said B. B. House, pursuant to said notification: On the trial of an action brought against the collector for taking and selling the horse, the original notification was produced, which was dated April 8th, and stated that the sale would be on the 11th of April, at the house of T. S. S, in D. Held, that the variance between the return and the notification was immaterial; that the return must be taken to be true, until it should be impeached; and that, if impeached merely by showing facts which would equally well justify the collector, he might rely on such facts to sustain his justification.\\nA collector\\u2019s notification of the sale of a horse, distrained for non-payment of a tax by the owner, need not mention the owner\\u2019s name, nor describe the horse, nor state the amount of the tax.\\nWhen a collector of taxes is also a constable, his notification of a sale by him of personal property, distrained for non-payment of a tax, is not vitiated by his adding to his signature the word \\u201c constable,\\u201d instead of collector.\\nThis was an action of trover for a horse, and was tried in the court of common pleas, before Wells, C. J. At the trial, the only question was, whether the taking of the horse by the defendant, as collector of taxes for the town of Deerfield, for the year 1845, was legally justifiable. The defendant introduced the records of said town for that year, from which it appeared that the defendant, at the annual town meeting, held in March, was chosen constable and collector of taxes for the ensuing year, and was sworn in both capacities ; that assessors were also chosen at the same meeting, and sworn, who assessed a state, county and town tax, and committed the tax list to the defendant, with a warrant under their hands, commanding him, (among other things,) in these words: \\u201c Levy and collect of the several persons named in the list herewith committed to you each one his respective proportion therein set down.\\u201d The concluding part of this warrant was m these words : \\u201c And if any person shall refuse or neglect, upon demand by you made, to pay the sum he is assessed in the said list, you are to distrain the goods or chattels of such person to the value thereof, and the distress so taken to keep for the space of four days, at the cost and charge of the owner; and if he shall not pay the sum so assessed, within the said four days, then you are to sell openly, at public vendue, the distress so taken, for the payment thereof, with charges; first giving forty eight hours\\u2019 notice of such sale, by posting up advertisements thereof in some public place in said town, which said notice may be given either before or after the said four days shall have expired; and the overplus arising by such sale, if any there be besides the sum assessed, and the necessary charges of taking and keeping the distress, you are immediately to restore to the owner, with an account in writing of the sale and charges; and for want of goods or chattels to oe shown you, whereon to make distress, (besides tools or implements necessary for his trade or occupation, beasts of the plough necessary for the cultivation of his improved lands, arms, utensils for housekeeping, necessary for upholding life, bedding and apparel necessary for himself and family,) for the space of twelve days after demanding the payment of any sum so assessed, you are to take the body of such person so refusing or neglecting, and him commit to the common jail of'the county aforesaid, there to remain until he pay the same or such part thereof as shall not be abated by the assessors of said town for the time being, or by the court of cciunty commissioners for the county aforesaid.\\u201d\\nThe defendant\\u2019s return on the foregoing warrant is copied in the margin.\\nThe plaintiff objected to the validity of the said warrant, both in regard to its directions for the sale of property and arrest of the body of the plaintiff; but the judge overruled the objection.\\nThe defendant relied on the said warrant, with a tax list far the year 1845, which was not annexed to the warrant, and on said return, as prima fade evidence of the facts therein stated, and for his justification of the alleged conversion of the plaintiff\\u2019s horse; and the judge ruled accordingly.\\nThe plaintiff then gave in evidence the following advertisement posted up by the defendant: \\u201c Sale at auction.\\nTaken in distress for taxes, and will be sold at public auction, on Saturday, the eleventh day of April instant, at one of the clock in the afternoon, one valuable horse, unless said taxes shall be settled previous to the time appointed for said sale, at the house of T. S. Sargent, S. Deerfield. Deerfield, April 8th 1846. Zebadiah Graves, Constable.\\u201d The plaintiff contended that this advertisement was insufficient as a notice of sale, and also that it so far contradicted and impeached the return aforesaid, as to destroy its effect, even if it were otherwise good jprima fade evidence of the facts therein stated; but the judge ruled that, notwithstanding this, the defendant had made out a sufficient defence. The defendant offered no further evidence, and the jury found a verdict for him. The plaintiff alleged exceptions to the judge\\u2019s rulings.\\nHuntington, for the plaintiff.\\n1. The warrant was illegal, not being conformed to Rev. Sts. c. 7, \\u00a7 33, which require that it \\u201cshall specify the duties of the collector, as required .by law.\\u201d Rev. Sts. c. 8, \\u00a7 8, direct that\\\" \\u201cthe collector shall keep the goods distrained for the space of four days, at the least', and shall within seven days after the seizure sell the same,\\u201d &c. This seems, in spirit and in terms, to require the keeping of the property four days, at least, before the expense of advertising is incurred. (See Sts. 1785, c. 70, \\u00a7 2, and 1791, c. 22, \\u00a7 2, the provisions of which are changed by the revised statutes.) But the warrant in question allowed the defendant to give the notice \\u201c either before or after the four days \\u201d should have expired; and his return shows that he posted up notice before the four days had expired, to wit, on the next day after the seizure.\\nThe warrant also directed the defendant to seize the body within twelve days after demand; whereas the Rev. Sts. c. 8, \\u00a7 11, do not permit such seizure until fourteen days after demand.\\nThese objections apply to a state of facts alluded to, but which did not exist, in King v. Whitcomb, 1 Met. 328. In that case, the property was kept four days before the notice was posted up; and the proceedings of the collector conformed to the directions of the law, and were not in conflict with his warrant. In the case at bar, the warrant directed proceedings contrary to law, both as to sale and arrest, and presents the very question which was alluded to, but not decided, in King v. Whitcomb.\\n2. The defendant cannot justify under a warrant without a tax list annexed. Rev. Sts. c. 7, \\u00a7\\u00a7 31 - 33. In St. 1785, c. 50, \\u00a7 6, the form of the warrant was prescribed, and \\u201c the .ist herewith committed \\u201d was mentioned. The warrant is not a warrant, unless the list be annexed to it, any more than a mortgage, referring to a schedule not annexed, is a mortgage of the goods named in the schedule.\\n3. The defendant\\u2019s return was not sufficient evidei.ee in justification of his invasion of the plaintiff\\u2019s property. In Bruce v. Holden, 21 Pick. 187, a field driver\\u2019s return was held to be prima fade evidence, on the ground that it was an official act, required by the provisions of law. But a collector of taxes is not required by law to make a return; and his return, when made, is not an official act. Neither his oath nor his prescribed duties require him to make returns. See St. 1785, c. 50, \\u00a7, 6 ; c. 70, \\u00a7\\u00a7 2, 17. Rev. Sts. c. 8, \\u00a7\\u00a7 1 - 14. In Alvord v. Collin, 20 Pick. 428, the court say, \\u201c the employment of a collector cannot be deemed a public office.\\u201d He \\u201chas a single duty to perform, viz. to collect the taxes committed to him.\\u201d If he is obliged to return his doings as to one tax payer, he is as to every other tax payer in the list. See 1 Greenl. on Ev. \\u00a7 498.\\n4. The return, if evidence for any purpose, was not evidence to prove either a demand or notice of the sale. The demand should have been proved aliunde; and the return, if it were to prove notice of the sale, should have set forth a copy of the notice, either in terms or substance, and the acts done, and not the inference of law. Wellington v. Gale, 13 Mass. 483. The effect of the return, as prima facie evidence, is impeached or impaired so far as to call for further testimony, (which was not offered,) by the variance between the statement in the return and the date of the notice on its face. The return states that the notice was posted up on the 7th of April; but the notice is dated April 8th. The return states that the sale was made at the Bloody Brook House ; but the notice itself mentions the house of T. S. Sargent.\\n5. The notice of sale was insufficient in many respects First, it was signed by the defendant, as \\u201c constable,\\u201d though he was also chosen collector. So far as the plaintiff is supposed to know the law, this signature as \\u201c constable \\u201d di< recti y tended to mislead him ; for it implied that the defendant had distrained the property of a person who had removed from another town after a tax had been assessed upon him, under the St. of 1842, c. 34. Secondly, the notice did not state the name of the owner of the property distrained; and therefore the plaintiff was not informed of the proceedings. See Whitaker v. Sumner, 7 Pick. 551. Alvord v. Collin, 20 Pick. 421, 431. Rev. Sts. c. 8, \\u00a7\\u00a7 22, 23, 25. Thirdly, there was no description of the property by which the owner, or any other person, could recognize it, or judge of its value. Fourthly, the amount of the tax was not mentioned. The defendant\\u2019s return showed that the plaintiff\\u2019s tax was only $5\\u201891; and the defendant had no reason to suppose his \\u201c valuable horse\\u201d could have been seized for so small a sum. Fifthly, the notice is otherwise ambiguous; for it does not distinctly say whether the sale is to be \\u201c at the house of T. S. Sargent,\\u201d or whether the tax is to be paid there.\\nGrennell, for the defendant.\\nThe first two objections to the warrant are answered by the Rev. Sts. c. 7, \\u00a7 33, which provide that it \\u201c shall be substantially in the form heretofore used,\\u201d and \\u201c shall specify the duties of the collector, as prescribed by law.\\u201d The form heretofore used, and the duties prescribed in case of distress and sale, are found in Sts. 1785, c. 50, \\u00a7 6, and c. 70, \\u00a7 2, and in Rev. Sts. c. 8, \\u00a7 8. And no requisition of the warrant in question is in conflict with the provisions of those statutes. Certainly there is none which made the warrant invalid. The warrant might well have contained a direction to sell a distress within seven days; but this was not necessary. Taking all the directions of the warrant together, they sufficiently conform to the provisions of law.\\nThe direction to arrest the body within twelve days after demand and non-payment was erroneous. The old form under St. 1785, c. 70, \\u00a7 2, was used too exactly. But this misdirection could not vacate the whole instrument, nor render the defendant liable to an action for distraining property under it. King v. Whitcomb, 1 Met. 328. Sanford v. Nichols, 13 Mass. 286.\\nThe Rev. Sts. c. 8, \\u00a7 8, bound the defendant, in the distress and sale, by three leading provisions. 1st. To keep the distress four days at least, at the expense' of the owner. 2d. To sell within seven days. 3d. To give notice of the sale forty eight hours before the sale. It is not directed how soon after the seizure the notice shall be posted up. Nor is it declared or implied that four days shall elapse before the notice of sale shall be given.\\nNow, if the defendant\\u2019s return is taken as evidence of his acts, no one can see wherein he departed from the precept of his warrant, or disobeyed the commands of the law. The supposed intent of the legislature that the tax payer should not be subjected to the expense of advertising, &c. till four days should have expired, is nowhere apparent. If such intent existed, it would have been easy to express it, for the guidance of collectors.\\nThe law does not require that the tax list should be annexed to the warrant. The Rev. Sts. c. 8, \\u00a7\\u00a7 l, 5, speak of a tax list and warrant committed to collectors, but nothing of their being annexed. In the present case, the two papers were under the hands of the same assessors; and the warrant, addressed to the collector, described the list as \\u201c herewith committed\\u201d to him \\u2014 simply signifying that they went together into his hands.\\nThe defendant\\u2019s return or certificate of his doings is evidence in justification thereof. Eastabrook v. Hapgood, 10 Mass. 313. Bean v. Parker, 17 Mass. 601. Bruce v. Holden, 21 Pick. 187, 191. In King v. Whitcomb, 1 Met. 328, the court admitted a collector\\u2019s return as evidence of the facts in that case, and spoke of it as proving important facts of which no other proof existed. It would seem necessary that an officer, vested with power, and intrusted with precepts to seize and distrain property, and commit persons to prison, should have the right to return facts for the knowledge of others in terested, and for his own protection in his official capacity especially as he is under solemn responsibilities. The defendant was sworn as collector and constable.\\nIf the facts certified by a collector are not to be taken as evidence, it follows that he must take witnesses along with him, to witness a demand of payment made by him on half, perhaps all, the persons assessed, and whose names are on his tax bill, if he would protect himself in the matter of distraining property. Who shall pay the witnesses, as such, not as aids, taken about by the collector? This officer must prove the time of making distress, at his peril. If he sell a distress after the seven days next following the seizure, he will be liable as a trespasser. Pierce v. Benjamin, 14 Pick. 356. This proof as to time must be made aliunde, if a demand must.\\nCollectors, for some purposes, are to make returns to selectmen. Rev. Sts. c. 3, \\u00a7\\u00a7 3, 4. An officer\\u2019s written return proves an attachment, although the writ is never returned to court. Wilder v. Holden, 24 Pick. 8.\\nIt is objected that the defendant\\u2019s return, if evidence as to some facts, is not full and particular enough as to the notice of sale. But the court will not hold a collector to stricter rules, in selling goods distrained for taxes, than those by which they hold an officer in returning a sale of goods seized on execution. See Sprague v. Bailey, 19 Pick. 440.\\nThe variance between the return and the date of the notification cannot impeach the return. The notification was misdated, and the return will govern. The time, in either, would have been sufficient and legal. The Bloody Brook House, and the house of T. S. Sargent \\u2014 a public hotel \\u2014 are well known to be the same. See Thayer v. Stearns, 1 Pick. 109.\\nAs to the alleged defective notice of sale, it is to be observed that the defendant was chosen collector and constable, and was sworn into both offices. His \\u201c precinct \\u201d was the town of Deerfield, the place of the plaintiff\\u2019s residence. Rev. Sts. c. 15, \\u00a7 33.\\nIt is objected that the notice did not state the name of the owner of the property seized. Is it a grievous wrong, that the defendant did not post his -neighbor, at the tavern, for refusing to pay his tax ? And was it necessary to describe the animal seized, as minutely as an impounded beast or stray horse should be described ? In Whitaker v. Sumner, cited for the plaintiff, the officer\\u2019s advertisement mentioned no \\u201c place of sale; \\u201d omitting what the St. of 1798, c. 77, \\u00a7 4, in terms, required to be done, and what was most essential to be done.\\nFranklin ss. April 11th 1846. By virtue of this warrant, and the tax lists committed to me as collector of taxes in and for the town of Deerfield for the year of our Lord 1845, by the assessors of said town, having first demanded of Luther Barnard, of said Deerfield, whose name is borne on said ist with a tax against him of the sum of five dollars and ninety one cents, ihe payment of said sum and tax, which the said Bamai 1 refused to pay; I: distrained one horse, the property of the said Barnard, for the payment of said tax, and all legal and necessary charges and expenses in consequence of said distress, on the 6th day of April 1846. And on the 7th day of the same April, I posted up a notification at the Bloody Brook House, a public place in said town, as the law directs, of the said distress, and of my intention to sell the said horse, distrained as aforesaid, at public auction at said house, on the 11th day of said April at one o\\u2019clock P. M. for the payment of said tax and keeping and. sale of the said horse, and legal charges of the same. The aforesaid demand of said tax was made 14 days before making the said distress. And I kept the said distress for the space of four days and more, and posted up said notification more than 48 hours before the sale of said horse, and sold the. same within 7 days after the seizure, at public auction at said Bloody Brook. House, pursuant to said notification, to William Chapman, he being the highest bidder therefor. The said horse was sold as aforesaid for $70, and the result thereof is as follows: Horse sold, $70-00. Tax, $5-91. Travel in service, 4 miles, $0-16; keeping horse 5 days, $1-25 ; fees for taking, &e. $0-50; commissions, 4 per cent, of tax, $0-23, = $7-05. Surplus money, $63-05; which I hold for the said Barnard when demanded. Deerfield, April 11th 1846. Zebadiah Graves.\", \"word_count\": \"4698\", \"char_count\": \"25841\", \"text\": \"Dewey, J.\\nVarious objections are relied upon by the plaintiff, founded upon the irregularity of the proceedings under which the defendant justifies the taking and sale of the property, which is the subject in controversy.\\nI. As to the objection that the warrant, without a tax list annexed, is no legal authority to collect taxes by distress. No one can doubt but that such tax list must accompany the warrant, must proceed from the same source, and be committed to the collector as a part of the documents constituting the authority for the collection of the taxes. But no precise form of annexation is prescribed, nor is there any requirement, that it be actually annexed, specified in any statute provision. Rev. Sts. c. 7, \\u00a7 32, enact \\\" that the assessors shall commit the tax list, with the warrant, under their hands, to the collector for collection.\\\" We think the evidence in this case sufficient to authorize a jury to find that the warrant and tax list were committed as the tax list and warrant for the collection of the tax which was collected, and that there is no ground for exception to any ruling of the court upon that point.\\nII. As to the form of the warrant. The direction to arrest the body within twelve days after a demand of the tax, if the same should not be paid, although erroneous in form, is of no practical consequence here, as it was not acted upon. The case of King v. Whitcomb, 1 Met. 328, is an authority, that an omission to comply fully with the requisitions of Rev. Sts. c. 7, \\u00a7 33, that the assessor's warrant shall specify the collector's duties as prescribed by law, will not vitiate a warrant if sufficient in other respects, and executed in all respects in conformity to law.\\nAs to the direction in the warrant, that notice of the sale might be given \\\" either before or after four days shall have expired,\\\" we see no objection. We are of opinion that such notice may, under the existing laws, be legally given before the expiration of four days after the seizure, a proper time being fixed for such sale.\\nIII. The certificate or return of a collector of taxes is so far an official act, as to his doings upon a levy on personal property, that such certificate or return is to be deemed prima facie evidence, in his favor, of the facts stated therein. He is a sworn officer, (Rev. Sts. c. 15, \\u00a7 33,) and certainly in every respect as much entitled to be protected by his returns as a field driver, whose certificates are prima fade evidence as to all matters upon which they are required by law to make returns. Bruce v. Holden, 21 Pick. 187. Although this case of Bruce v. Holden, so far as it bears upon the question of the official duty of the field driver impounding beasts for being at large .upon the highway, has been overruled, yet the general doctrine of the case, as to the effect of a return made by a field driver in cases where by law it is his duty to make such a return, is sound, and has not been doubted.\\nWe have no doubt that in case of distraining the goods or arresting the body of the debtor, and a commitment to jail, for the non-payment of a tax, it is the duty of the collector to make an official return of his doings, and that, when properly made, he will be qntitled to the benefit of the same, as prima fade evidence of the facts therein stated.\\nIV. The demand of the tax may be shown by the return of the collector.\\nV. The variance is not material between the return and the evidence introduced by the plaintiff to control it. The return is to be taken to be true until impeached; and if impeached merely by showing facts which, if true, would equally well justify the defendant, the variance is immaterial, \\u00bbs the defendant may rely upon such facts as sustaining his justification for taking and disposing of the rroperty. Hence, whether the notice of the sale was posted up on the seventh or eighth of April is entirely immaterial. And so, also, as to any supposed variance in the notice actually given, and in the return of the officer, as to the place at which the sale was to be made, it does not seem to be material. It is enough that proper notice was given of the time and place of sale, be it in the one form or the other.\\nVI. The plaintiff insists that the notice of the sale, which was in fact posted up, and a copy of which he now introduces, was insufficient and defective in many particulars. 1. That it does not state the name of the person whose property was seized. This is not necessary. The seizure and removal of the property are supposed to give effectual notice of the distraining of it, so far as is necessary to the individual whose property is taken. 2. The property taken is not sufficiently described in the advertisement. This objection is not well taken. 3. It is objected that the amount of the tax is not stated in the advertisement. This is not necessary in .the case of a distress of personal property for non-payment of taxes; nor do we perceive any ambiguity as to the place of the sale sufficient to render the proceedings illegal on that account. 4. The notice of the sale, as appears from the copy now offered in evidence by the plaintiff, was signed by the name of Zebediah Graves, with the addition of \\\" constable J' annexed thereto ; and this is supposed to vitiate the notice. This objection is one certainly not as free from doubt as some of the others which have been raised. It seems to us, however, that all reasonable certainty as to the essential requisites of a notice is found in the recitals and signature, in the present case. The officer was both collector and constable. The terms of the advertisement in themselves clearly indicate that the seizure was by virtue of a warrant of distress for taxes, and that the proposed sale would take place only upon non-payment of the taxes. The name of the officer, oorne upon the advertisement, pointed out the person who gave the notice, and the recitals apprised all concerned that it was a seizure upon a warrant of distress for non-payment of taxes, and not a seizure on execution, nor a sale on an attachment upon mesne process.\\nUnder these circumstances, the court are of opinion that the addition of the word \\\" constable,\\\" as found in the advertisement, did not vitiate the notice, and that this ground of exception must also be overruled.\\nThe result is, that all the exceptions are overruled, and that there must be\\nJudgment on the verdict for the defendant.\"}"

mass/1981898.json

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+"{\"id\": \"1981898\", \"name\": \"Commonwealth vs. Thomas E. Wood\", \"name_abbreviation\": \"Commonwealth v. Wood\", \"decision_date\": \"1848-10\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"151\", \"citations\": \"2 Cush. 149\", \"volume\": \"56\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:23:47.878961+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Thomas E. Wood.\", \"head_matter\": \"Commonwealth vs. Thomas E. Wood.\\nA grand jury, in this commonwealth, cannot consist of more than twenty-three, or of less than thirteen\\nThe defendant was indicted, at the last May term of the court of common pleas, in this county, for selling spiritous liquor contrary to law. At the same term, he pleaded in abatement, that, at the term of the court of common pleas, begun and holden on the third Monday of January last, being the first term of the court for the year 1848, twenty-two grand jurors were empanelled and sworn, and no more; that at the then present term of the court, at the time of the alleged finding of the indictment, no other grand juror was empanelled and sworn; and that but twenty-two persons were present or constituted the grand jury, by whom the indictment was returned. To this plea, the district attorney demurred, and the defendant joined in demurrer. The presiding judge, Mellen, J., overruled the plea, and the defendant thereupon alleged exceptions. Subsequently, the defendant, with the consent of the district attorney, who agreed that the defendant\\u2019s rights as to the matter set forth in the plea in abatement should not be prejudiced thereby, entered a plea that he would not contend with the commonwealth.\\nH. D. Stone, for the defendant,\\nadmitted, that previous to the passing of the revised statutes, \\u2014 no particular number being required by statute to constitute a grand jury \\u2014 a less number than twenty-three would suffice. But by the Rev. Sts. c. 136, <\\u00a7> 1, the number is fixed at twenty-three; and the demurrer admits that only twenty-two were returned.\\nE. Wilkinson, (district attorney,)\\nfor the commonwealth. By the common law, a grand jury may consist of any num her not exceeding twenty-three and not less than thirteen. The provisions of the Rev. Sts. c. 136, relative to grand jurors, are evidently in affirmance of the common law. The fourth section provides, that in case of a deficiency of grand jurors, the court may take measures for the return of such further number as may be required. A deficiency is such a reduction of the number as will prevent the efficiency of the grand jury; and, according to the common law, thirteen are competent to act. Tucker's Case, 8 Mass. 286 ; Wadlin's Case, 11 Mass. 142 ; Commonwealth v. Smith, 9 Mass. 10T.\", \"word_count\": \"511\", \"char_count\": \"2969\", \"text\": \"Shaw, C. J.\\nIt is conceded, that by the common law, a grand jury may consist of thirteen, or of any greater number not exceeding twenty-three. But it is contended, for the defendant, that this rule has been altered by the Rev. Sts c. 136, \\u2022\\u00a7> 1, which directs that clerks shall issue writs of venire facias for twenty-three grand jurors to be returned, &c The statute makes no provision relative to the number necessary to form a quorum, but leaves that to the same rule of the common law, by which it was previously regulated; it is merely directory to clerks, in order that the actual attendance of a sufficient number may be the better insured.\\nExceptions overruled.\"}"

mass/1998231.json

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+"{\"id\": \"1998231\", \"name\": \"Reuben E. Demmon vs. Davis Locke\", \"name_abbreviation\": \"Demmon v. Locke\", \"decision_date\": \"1854-10\", \"docket_number\": \"\", \"first_page\": \"183\", \"last_page\": \"185\", \"citations\": \"2 Gray 183\", \"volume\": \"68\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:24:39.674671+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Reuben E. Demmon vs. Davis Locke.\", \"head_matter\": \"Reuben E. Demmon vs. Davis Locke.\\nIt is no defence to an action for the price of two buildings sold on credit, and one cf which has been removed by the purchaser, that before the expiration of the term of credit, the seller gave him notice not to remove the other until the price was paid.\\nAction of contract, brought on the 22d of June 1852. \\u201c And the plaintiff says, the defendant owes him ninety five dollars for barn and shed sold by the plaintiff to the defendant.\\u201d\\nThe defendant, in his answer, \\u201c says, that he did buy of the plaintiff the barn and shed, declared for in the plaintiff\\u2019s writ, for the sum of ninety five dollars; but that it was agreed by and between the plaintiff and defendant at the time of the purchase of said barn and shed, that the defendant should have ten days\\u2019 credit upon the same from the day of the purchase aforesaid; that, notwithstanding said agreement, the plaintiff, before the expiration of said ten days, notified the defendant not to remove said barn and shed until the same were paid for; and so the defendant became absolved from the payment of said sum of ninety five dollars. But the defendant further says, that before the notice aforesaid he had sold the shed aforesaid to one Robbins, who had removed the same; and that since the suing out of the plaintiff\\u2019s writ, to wit, on or about the nineteenth day of July last past, the defendant tendered to the plaintiff the sum of twenty three dollars and fifty cents in payment for said shed and for the costs of suit upon said writ, which said sum of twenty three dollars and fifty cents the defendant now brings into court for the use of the plaintiff. And so the defendant says, he does not owe the plaintiff the sum of ninety five dollars, as the plaintiff has declared against him.\\u201d\\nThe plaintiff demurred to the answer, because it did not state a legal defence to the cause of action set forth in the declaration, according to the rules of law.\\nE. Buttrick, for the plaintiff.\\nM. G. Cobb, for the defendant.\", \"word_count\": \"895\", \"char_count\": \"4895\", \"text\": \"Bigelow, J.\\nThe single question in this case is, whether, taking all the facts stated in the defendant's answer to be true, they constitute any valid defence to the plaintiff's claim. The sale of the barn and shed for the sum stated in the declaration is admitted, and the removal of the shed in pursuance of this contract of sale is averred, in the defendant's answer. There was therefore an agreement of sale, and a delivery of a portion of the chattels sold under it. Upon familiar principles, these constitute a good ground of action for the agreed price, and they entitle the plaintiff to recover, unless some other fact is stated in the answer, which changes the legal rights of the parties.\\nThe averment on which the defendant rests his defence is, that the sale was made on a credit of ten days, and that before the expiration of this term of credit, but after a removal of a part of the chattels sold, he had notice from \\\"the plaintiff not to remove the property, until the purchase money had been paid. But these facts constitute no defence to the action, because they do not amount to a rescission of the contract, nor to a failure by the plaintiff to fulfil his part of the agreement. The notice not to remove the property did not change the rights of the parties, as fixed by the terms of the contract of sale. If it was contrary to the original agreement of the parties, it was a nullity, and the defendant was at liberty to disregard it. The case might have been materially changed, if the plaintiff had prevented the removal of the property, and retained it in his possession; but no such averment is made in the defendant's answer. Assuming the defendant's statement of the contract to be the true one, the title to the property sold passed to the defendant, by virtue of the sale, and the removal of the shed in pursuance of it. They constituted a valid sale and delivery. The defendant had the right thereby to an immediate possession of the barn, and a license, implied from the sale of it while standing upon the plaintiff's land, to go thereon and remove it. Wood v. Manley, 11 Ad. & El. 34, and 3 P. & Dav. 5. The contract was therefore complete between the parties, upon the defendant's own statement of its terms. All that remained to be done was for him to pay the stipulated price when it became, due. It is no answer to a suit brought to recover it, after the berm of credit had expired, to say that he had notice not to remove the property. It was his; he had the right to take it away; the notice from the plaintiff did not prevent him from exercising his dominion over it; and if he has failed to do so, it was a voluntary omission by him to enforce a legal right, which constitutes no defence to this action. The answer therefore does not state a valid defence to the plaintiff's claim; and the demurrer thereto is well taken. Judgment for the plaintiff.\"}"

mass/2002188.json

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+"{\"id\": \"2002188\", \"name\": \"Samuel Campbell versus Amaziah Howard\", \"name_abbreviation\": \"Campbell v. Howard\", \"decision_date\": \"1809-09\", \"docket_number\": \"\", \"first_page\": \"293\", \"last_page\": \"295\", \"citations\": \"4 Tyng 376\", \"volume\": \"5\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:10:06.025379+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"* Samuel Campbell versus Amaziah Howard.\", \"head_matter\": \"* Samuel Campbell versus Amaziah Howard.\\nWhere an appeal is duly made from a judgment of the Common Pleas, such judgment ceases to have any force.\\nBut an appeal not given by law has no operation, and although allowed by the Court below, the judgment appealed from remains in force, and execution may issue, or an action of debt will lie upon it.\\nThis was an action of debt, in which the plaintiff declares on a judgment of the Court of Common Pleas for this county, rendered in his favor against the defenuant for the sum of 34 dollars, 13 cents, costs; which judgment he avers to be in full force, and not reversed, annulled or satisfied.\\nThe defendant prayed oyer of the judgment declared on, the record of which comports with the declaration, as far as it was therein described. But it further appears that the plaintiff\\u2019s demand in the original action did not exceed 50 dollars, and that from the judgment rendered for the original defendant, the now plaintiff, upon a demurrer with reservation replied to a good plea, the original plaintiff, the now defendant, appealed to the Supreme Judicial Court, and entered into recognizance with sureties, as the law directs, to prosecute his appeal with effect. Upon oyer had, the defendant demurs generally to the plaintiff\\u2019s declaration, and the plaintiff joins in demurrer.\\nBangs, for the defendant\\nargued that the question was not whether the Court below ought or ought not to have permitted the party to appeal; they had permitted it, and the appeal thus interposed suspended the effect of the judgment, and rendered it a mere nullity. But further, it cannot appear to the Court here, that the appellant did not enter his appeal in this Court, or if he did not, that the other party did not file his complaint, and in either case, that a new judgment was not rendered by this Court in the action.\\nMerrick, for the plaintiff,\\ninsisted that he had shown a regular judgment of the Common Pleas, agreeing with his declaration, and it rested with the defendant to avoid it if he could. As to the ap peal, it was expressly disallowed by the statute of 1803, c. 154. <\\u00a7> 5., and it is therefore absolutely and wholly void, and [ * 377 ] of no effect at * all. The judgment is still in force, and an action well lies upon it.\", \"word_count\": \"1321\", \"char_count\": \"7571\", \"text\": \"Parsons, C. J.\\nThe sufficiency of this declaration must depend on the construction of the statutes of 1782, c. 11., and 1803, c. 154. By the second section of the former statute, any party aggrieved at the judgment of the Common Pleas may appeal to this Court; but before his appeal be allowed, he shall recognize with sureties to the other party, to prosecute his appeal with effect, and to pay all intervening damages and costs; and no execution shall be issued by the Common Pleas on the judgment appealed from. By the third section, the appellant is to produce to this Court a copy of the case; and if he neglect to do it, or fail to prosecute his appeal, this Court may, on complaint of the other party, affirm the former judgment, with additional damages and costs.\\nFrom these provisions we are satisfied, that when the appeal has been regularly allowed, no further proceedings can be had on the judgment, until through the default of the appellant it be affirmed in this Court, on the complaint of the appellee; in which case it may be executed by writ issuing from this Court, and not from the Common Pleas. If the appellant prosecute his appeal to effect, a new judgment is entered in this Court, according to the justice of the case, as apparent from the proceedings here. If he enter his appeal, so that the parties are before the Court, and the appellant fail to prosecute, if he be the original plaintiff, the Court enter judgment for the defendant for the costs of both the Courts; but if the appellant be the original defendant, on his failing to prosecute after appearance, his default is recorded, and the plaintiff has judgment according to the justice of his case, without regard to the judgment of the Common Pleas. But if the appellant does not enter his appeal, the remedy for the appellee is to complain of this [* 378 ] neglect, and pray affirmation of his former * judgment, with additional damages for the delay, and the costs of the complaint.\\nFormerly, when the appellant was the original defendant, and af ter entering his appeal, failed to prosecute, he was nonsuit on the appeal, and the appellee recovered only the costs of the appeal, but was obliged to file his complaint for affirmation of the former judgment. The alteration of the practice took place when the currency was paper, perpetually depreciating. The judgment of the Common Pleas might be correct when it was rendered for the plaintiff ; but if, on the defendant's appeal, the final judgment was delayed a year, or perhaps less, the defendant would then be nonsuit on the appea., and leave the plaintiff to his former judgment. To prevent this mischief, the Court entered a new judgment on the appeal, if the appellant had appeared, on recording his default. Thus in actions for tort, which sounded only in damages, the plaintiff might have justice by increasing the damages in proportion to the depreciation ; but he was without relief in actions on contracts for the payment of specific sums of money.\\nThe judgment of the Common Pleas, when regularly appealed from, becomes wholly inoperative. No execution can ever issue upon it. But if the appellant does not enter his appeal, the appellee, by his complaint in this Court, may make that judgment the appeal, and the loches of the appellant a foundation for a judgment of this Court, which may be executed here.\\nWhen the appeal is allowed, the judgment no longer, in legal construction, remains in force, and cannot be the foundation of an action of debt. This construction is not new. The question has frequently been before the Court, when a judgment appealed from, and not affirmed, has been pleaded in bar to another action for the same cause; and it has been considered as no bar, as a judgment inoperative, and not in force after the appeal was allowed.\\n*But this practice is necessarily confined to cases [*379] where a party aggrieved at the judgment of the Common Pleas might lawfully appeal to this Court. Where no appeal is given by law, the judgment of the Common Pleas must necessarily be final. As in actions brought before that Court by appeal from the judgment of a justice of the peace, the title to real estate not being drawn into question; \\u2014 and also by the late statute of 1803, c. 155., before referred to, in actions upon simple contract, where the plaintiff's demand does not exceed fifty dollars, and in all actions wherein judgment is rendered in the Common Pleas upon the default of the defendant.\\nIn these cases an appeal is a mere nullity, and the party obtaining the judgment may sue out execution upon it, or maintain an action of debt upon it, as a judgment in force; otherwise he would be without remedy. For the power of this Court to affirm judgments below, where the appeal is not prosecuted, is confined to cases in which the appellant might lawfully prosecute his appeal, and on his neglect is chargeable with loches.\\nIn the case at bar, the plaintiff's demand did not exceed fifty dollars, and from the judgment no appeal by law lay. The appeal was therefore a nullity, and notwithstanding the allowance of it by the Common Pleas, the judgment remained in full force, and formed a legal consideration of an action of debt. The declaration therefore appears to us sufficient, and the plaintiff must have judgment.\"}"

mass/2002224.json

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+"{\"id\": \"2002224\", \"name\": \"Freeman Waterman versus Jesse Robinson\", \"name_abbreviation\": \"Waterman v. Robinson\", \"decision_date\": \"1809-05\", \"docket_number\": \"\", \"first_page\": \"233\", \"last_page\": \"235\", \"citations\": \"4 Tyng 303\", \"volume\": \"5\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:10:06.025379+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Freeman Waterman versus Jesse Robinson\", \"head_matter\": \"Freeman Waterman versus Jesse Robinson\\nWhere the messenger of the commissioners of a bankrupt had delivered goods of the bankrupt to a stranger, taking his obligation to keep them safely, and to redeliver them on demand, it was held that the bailee could not maintain replevin against one who had taken them; property, either general or special, beng required to be shown in replevin, though possession is sufficient to maintain trover.\\nIn an action, depending on the bankruptcy of a stranger, and in which the assignee is not plaintiff, the plaintiff must prove the act of bankruptcy, and the regular issuing of the commission.\\nBy the writ in this case, the plaintiff replevied certain articles of household furniture from the defendant, who, as a deputy sheriff, had attached them as the property of Isaiah Lucas. A verdict was found for the plaintiff, that the goods replevied were his property, subject to the opinion of the Court upbn a case reported by the judge.\\nOn the 23d of July, 1801, the property was in the said Lucas, on which day a commission of bankruptcy issued against him, and he being declared a bankrupt, by a warrant from the commissioners, their messenger .seized the goods, caused them to be appraised and inventoried, and on the 28th of the same July, he delivered them to the plaintiff, taking his obligation to keep them safely, and redeliver them on demand. An assignee was chosen, and all the bankrupt\\u2019s effects duly assigned to him. The goods had not been demanded of the plaintiff, who had put them into the possession of Lucas\\u2019s wife, daughter to the plaintiff, for the purpose of housekeeping, she and her husband living together. There [ * 304 ] * was no evidence of the petitioning creditor\\u2019s debt, but a copy of his oath annexed to the petition; and no evidence of any bankruptcy, but the warrant to the messenger, and the ' certificate of the discharge of Lucas.\", \"word_count\": \"939\", \"char_count\": \"5511\", \"text\": \"At this term, the cause was shortly argued by Perley, for the' plaintiff, and Mellen, for the defendant, after which the opinion of the Court was delivered by\\nParsons, C. J.\\n[After reciting the facts as stated above.] Upon these facts, we are to decide whether the property of the goods, so that he might lawfully replevy them, was in' the plaintiff.\\nTrover may be maintained by him who has the possession; but replevin cannot be maintained but by him who has the property, either general or special. Admitting the commission, and the proceedings under it, to be regular, what property had the plaintiff in the goods ? The general property was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe keeping. If his possession was violated, he might maintain trespass or trover, but he had no special property, by which he could maintain replevin; in which the question is not of possession, but of property, although possession may be prima facie evidence of property. On this ground we are of opinion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in himself.\\nBut he must fail for the insufficiency of the evidence. Unless I/ucas had actually committed an act of bankruptcy, and a commission had regularly issued against him, the property of the goods always remained in him; and the plaintiff cannot have any control over them, which would prevent their being attached as the property of Lucas.\\n[ * 305 ] * In this action, the plaintiff must prove an act o\\u00ed bankruptcy, and that the commission regularly issued on the petition of a creditor of the bankrupt. He must also then prove the debts of the petitioning creditor. To prove these facts at common law, the best evidence which the nature of the case will admit, must be produced.\\nNo evidence was given of the act of bankruptcy; and evidence, not the best the nature of the case admitted, was received to prove the debt of the petitioning creditor, being only a copy of the oath annexed to the petition. The plaintiff must on this ground fail, unless the statute of bankruptcy has provided that, in a case like the pre& ent, these facts may legally be presumed from the evidence offered, or has superseded the necessity of proving them, because the certificate of discharge is proved.\\nThe thirty-fourth section of the bankrupt law provides, that when a certificated bankrupt is sued for debts due before the bankruptcy, he may give the certificate in evidence, which shall be sufficient to prove his bankruptcy, and the regularity of all the proceedings previous to the certificate. But the bankrupt is not the defendant in this case.\\nThe fifty-sixth section enacts, that where the assignee shall prosecute any debtor of the bankrupt's to recover any debt due to the bankrupt, a certified copy of the commission and the assignment by the commissioners, shall be conclusive evidence of the issuing of the commission, and of the bankruptcy. But in this action, the assignees are not the plaintiffs, nor is a debtor of the bankrupt the defendant.\\nThe plaintiff cannot bring himself within any of the provision* of the statute, and he ought to have produced the regular evidence of an act of bankruptcy, and of * the debt [ * 306 ] of the petitioning creditor. Not having done this, he has on this ground also failed.\\nConformably to the agreement of the parties, the verdict must be set aside, and the plaintiff must be called.\"}"

mass/2007214.json

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+"{\"id\": \"2007214\", \"name\": \"Constant Benson versus Benjamin Swift\", \"name_abbreviation\": \"Benson v. Swift\", \"decision_date\": \"1806-03\", \"docket_number\": \"\", \"first_page\": \"53\", \"last_page\": \"57\", \"citations\": \"1 Tyng 50\", \"volume\": \"2\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:07:40.354168+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Constant Benson versus Benjamin Swift.\", \"head_matter\": \"Constant Benson versus Benjamin Swift.\\n'L'tcre afterwards continuing his said assault is not within the technical meaning of a continuando, in a declaration for an assault and battery\\nThis was an action of assault and battery, brought by a mariner against the master of the ship. The declaration contained several counts, reciting as many distinct injuries. Upon the general issue, pleaded at last March term, there was a verdict for the plaintiff for 755 dollars damage; upon which the counsel for the defendant moved in arrest of judgment, because the plaintiff, in the third count of his declaration, has charged the assault and battery, therein complained of, with a continuando ; and the jury have rendered a general verdict for the plaintiff, with entire damages for all the matters complained of in the declaration.\\nThe third count, to which the exception was taken, alleged that the defendant, on such a day, at such a place, with force and arms, did make an assault on the plaintiff, and, making fast his body in an inclining posture over a large water-cask, did beat, bruise, and wound him, with a large piece of three inch plank, by means whereof he was lacerated and maimed, and there afterwards, (he said. Benjamin, continuing his assault, last aforesaid, on the body of the said Benson, with force and arms, to wit, with four parts of a two inch and a half rope, did beat, bruise, &c.\\n* On the part of the defendant, it was argued that an [ *51 j assault is one entire and individual act, and the same assault cannot be committed at divers times. The declaration, in this case, is not so well as if laid diversis diebus et vicibus, as it was in Michell vs. Neale, where judgment was rendered for the defendant. Where the act is of such a nature as that it may be performed at several times, there it may be laid with a continuando; but where the act must be done all at one time, and terminates in itself, as an assault, it cannot. This objection may as well be made in arrest of judgment as upon demurrer.\\nOne of the Court, inquiring if no authorities to the point could be \\u25a0sited from more modern books, was answered that the point was early so well settled as to furnish a fair presumption that the same error has not occurred in later times.\\nThere being no limit assigned to the time of this trespass, its continuance is implied up to the commencement of the action. Ilovt' could the defendant be prepared to answer to such a charge ? In fact, this count describes two several trespasses, with two distinct instruments. It cannot be known what part of the damages were given for that part of the trespass which is ill alleged, perhaps the whole.\\nOn the other side, it was said that the trespass is alleged to hate been committed on a day certain ; whereas a continuando always includes several days. But if this is within the technical idea of a continuando, and if a trespass of this kind does not lie in continuance, the Court will intend that no part of the damages was given for it. The case in Cowper, 828, shows that advantage must be taken of this defect, if there is any, upon special demurrer. Courts are more liberal in modern times than formerly, and many faults in pleading, heretofore held fatal, are now cured by verdict.\\nFor the defendant, in reply. Afterwards certainly means at another and subsequent time. And should it be yielded that this whole transaction is laid, in this third count, as having [ *58 ] taken * place in one day, still, as several assaults may be committed in one day, some of which shall be justifiable, and some not, this is, in strictness, declaring with a continuando, and liable to all the objections which have been urged. Is this fault cured by the verdict ? Where, in the same count, some things are laid with a continuando, which may well be so laid, and some which cannot, the Court will presume the damages given for the causes which are well laid. But the whole of this third count is laid with a continuando, whereas the matter does not lie in continuance. When a declaration is bad through negligence, the Court will not be inclined to favor it. Liberality has been carried, in modern times, too far for the honor of the profession. Ancient authorities, like ancient landmarks, are more venerable than modern ones.\\nCowper, 828.\\nViner's Abr. tit. Trespass, 1. pl. 5, also the note to pl. 9, Ibid. 1. 2, pl. 3.\\n1 Vent. 363. \\u2014 Clayton vs. Gillam, T. Jones, 109 \\u2014 1 Lev. 210.\\n2 Ld Raym. 823, Brook vs. Bishop. \\u2014 Ibid. 974, Monkton vs. Pashley & Al\", \"word_count\": \"1999\", \"char_count\": \"11305\", \"text\": \"Parker, J.\\nI am against arresting the judgment in this case, however my opinion might have been on a special demurrer and 'cinder, where the parties are properly brought to a conflict on points of nicety.\\nI understand it to have been uniformly endeavored by courts to support declarations after verdict, if the words therein contain sufficient for that purpose. And indeed, where there may be some question on the literal sense of the words, the courts will give them such a reasonable construction (if they are capable of it) as will support the action after verdict.\\nThe objection here is, that the assault and battery alleged in the declaration is laid with a continuando; which the objectors say cannot be done in an action of this nature. Without undertaking to decide whether it can or not, I will only say that the declaration ought clearly to contain a continuando, to authorize us to arrest judgment. I see nothing in this declaration from which a continuando must necessarily be inferred. Indeed, the person who drew the declaration seems to have labored to give an idea of an incessant and continuous beating, the whole of which was one act, with only a change of instrument, lest the putting down the plank, and taking up the rope, should be construed into the very thing he meant to avoid. The word \\\" continuing \\\" does not necessarily imply the technical * sense of a. continuando. Indeed, the [ *53 J word is evidently in this case used inartificially.\\n\\\" There afterwards \\\" also may have its use in the sentence, without supposing that another time was intended to be expressed by it, It most probably was intended to show that the beating with a rope, though a part of the same outrage as the beating with a plank, was subsequent to it in order of time.\\nUpon these considerations, it being possible lo exclude the idea of a continuando from the declaration, without doing violence to any part of it, and a conslruction favorable to the verdict being to be gathered from the declaration itself, upon a reasonable use of the words, I am of opinion that the motion in arrest of judgment ought not to prevail.\\nThatcher, J.\\nI doubt whether this objection would have been held good, even in the ancient times of extreme technical nicety, and although attempted on a special demurrer. Here, however, the defendant saw the declaration before he pleaded to it, and went to trial. If he would avail himself of this point, he ought to have done it at an earlier stage of the cause. But I apprehend the declaration to be good and sufficient, and am therefore against arresting ' the judgment.\\nSedgwick, J.\\nThere is no doubt that the principle of law is settled, that where there are several counts in a declaration, and one of them is materially defective or bad, and a general verdict is found upon them all, the judgment must be arrested. The question now to be determined is \\u2014 Does this rule apply in the present case?\\nThe third count in the declaration, which gives rise to the present question, after stating the assault by the defendant, and the manner of confining the plaintiff for the purpose of beating him, alleges that he did beat him with a plank, and it then goes on in these words : \\\" And there afterwards the said Benjamin, continuing his assault last aforesaid on the body of the said Benson, with force and arms, viz., with four parts of a two and a half inch rope, did beat,\\\" &c. It is said that this is alleging an assault and battery with a continuando; that this count is for that reason ma- [ * 54 ] terially bad ; and that it may be taken advantage * of in arrest of judgment. I give no opinion whether this objection, if well founded, would prevail in this stage of the cause. Williams in a note on Saunders, lays it down, without any qualification, that advantage cannot be taken of such an inaccuracy after verdict, although available on a demurrer, or after a default. But it may be doubted whether the case to which he refers, in Lord Raymond, as the ground of his opinion, does support it. The Court will always support a verdict, if by any reasonable construction it can be done. Now, in this case, although it must be confessed that the words made use of in this count, \\\" there afterwards,\\\" are usually inserted to disjoin allegations of material and issuable facts, yet in this case, on a careful perusal, it does appear to me that it may fairly be understood that the story intended to be to.d by the plaintiff is, that the defendant made an assault, and that, during the continuance of that assault, he beat the plaintiff, first with a plank, and then with a rope. The assault was the same ; but one assault is alleged ; the beating was a continued injury, and the instruments only different. This seems to me to be the reason able construction, and not that two distinct and independent in juries are intended to be charged. If this is correct, the objection of the defendant's counsel is answered, and the judgment ought not to be arrested.\\nDana, C. J.\\nI agree in opinion with my brethren. Unless this declaration can be shown to allege the trespass with a continuando in form, there is no ground for arresting the judgment. An action is said to be laid with a continuando when the injury is alleged to have been committed by continuation from one day to another, or at divers days' and times between such a day and such a day. It does not appear that the trespass in this case is so alleged as to be brought within the legal and technical import of a continuando. \\\" There afterwards continuing his said assault \\\" may be understood to imply nothing more than a continuance of the trespass, without intermission of time longer than was sufficient to change the instruments used; first beating the plaintiff with the plank, and after-wards with the rope ; he continuing, the whole time of the [ * 55 ] beating with * both the instruments, lashed over the cask; so that there never was a cessation of the first assault noi of the beating. It is not necessary to decide the question which has been agitated at the bar, whether an assault and battery may be well laid with a continuando in any case, it appearing that it is not so laid in the count, to which the exception has been taken.\\nDexter and Selfridge for the plaintiff.\\nParsons and Jackson for the defendant.\\nJudgment according to verdict\\nKingsley vs. Bill, 9 Mass. Rep. 198. \\u2014 Stevenson vs. Hayden, post, 406. \\u2014 Barnard vs. Whiting & Al. 7 Mass. Rep. 358. \\u2014 Nye vs. Otis, 8 Mass. Rep. 122. \\u2014 Bames vs Hurd, 11 Mass. Rep. 59. \\u2014 Sullivan vs. Holker, 15 Mass. Rep. 374.\\n1 Saund. 24.\\nFontleroy vs. Aylmer, 1 Ld. Raym. 240\\nMitchel vs. Neale, Cowp. 828. \\u2014 English vs. Purser, 6 East, 395. \\u2014 M'Fadden vs. Olivant, 6 East, 390. \\u2014 Burgess vs. Freelove, 2 Bos. & Pul. 425. \\u2014 1 Chitty, 439, 5th Lond. ed.\"}"

mass/2007370.json

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+"{\"id\": \"2007370\", \"name\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons\", \"name_abbreviation\": \"Cutts v. Parsons\", \"decision_date\": \"1807-05\", \"docket_number\": \"\", \"first_page\": \"396\", \"last_page\": \"397\", \"citations\": \"1 Tyng 440\", \"volume\": \"2\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:07:40.354168+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons.\", \"head_matter\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons.\\nThe resignation of a judge of probate operates a discontinuance of an action Lu his name upon an office bond.\", \"word_count\": \"93\", \"char_count\": \"539\", \"text\": \"This was an action of debt, brought upon an administration bond 'or the use and benefit of one George Lord. Since the last con tinuance the plaintiff resigned his office. There being no motion to the Court for the continuance of the action, that the successor who may be hereafter appointed may come in and prosecute, the Court ordered a discontinuance to be entered.\"}"

mass/2011491.json

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+"{\"id\": \"2011491\", \"name\": \"Elisha Copeland Junior versus The Mercantile Insurance Company\", \"name_abbreviation\": \"Junior v. Mercantile Insurance\", \"decision_date\": \"1828-03-29\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"206\", \"citations\": \"6 Pick. 198\", \"volume\": \"23\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:29:33.762575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elisha Copeland Junior versus The Mercantile Insurance Company.\", \"head_matter\": \"Elisha Copeland Junior versus The Mercantile Insurance Company.\\nA vessel was owned by the plaintiff, the master, A and B, one quarter each ; &nd the plaintiff effected insurance upon her in his own name for whom it might concern, for six months. Before she sailed,'he gave a power of attorney to one P to sell his quarter, and in a subsequent letter of instructions he and A authorized P and the master to sell their respective quarters after the delivery of the outward cargo. After such delivery a bill of sale under seal, of the two quarters belonging to the plaintiff and B, was made by P alone to the master for himself and A, and the master drew bills upon A in favor of the plaintiff and B for the purchase money, which were protested for non-acceptance. The vessel was lost after the sale and within the six months, but the loss was not known until after the bills had been protested. In an action on the policy by the plaintiff for the benefit of the assured ; \\u2014\\nIt was held, that the power of attorney to P alone was revoked by the subsequent letter of instructions to him and the master ; \\u2014\\nThat a sale in pursuance of such instructions must be made by the master and P jointly ; \\u2014\\nThat the deed of sale being in the name of P, and signed \\u201c P, attorney to C,\\u201d (the plaintiff,) was insufficient in point of form ; \\u2014\\nThat the master, being an agent to sell, could not himself be the purchaser, and so nothing passed to him by the sale ; \\u2014\\nThat as A repudiated the sale, and the ratification, if any, on the part of the plaintiff and B must have proceeded on the ground that A was a joint purchaser with the master, the sale was entirely invalid, and so the ownership of the vessel re mained the same at the time of the loss as at the date of the policy ;\\u2014\\nThat a revocation by the master, pending the action, of the plaintiff\\u2019s authority to claim indemnification for the master\\u2019s quarter part of the loss, did not affect the plaintiff\\u2019s right to recover in this action for the other three quarters ; \\u2014\\nAnd that he might so recover under counts alleging respectively, that the insurance was made for the benefit of one of the owners, and that he was interested to tne whole amount insured.\\nAssumpsit on a policy of insurance, made on the 17th of September, 1825, by which the defendants assured for the plaintiff, for whom it might concern, 3600 dollars on the brig Joseph and appurtenances, for the term of six months from the 20th of the same September.\\nThe first count alleged the insurance to have been made for the benefit of the plaintiff, William Bright and Joshua Seaver, one quarter for each, and one quarter for Porter & Greene. The third alleged it to have been made for the benefit of Seaver, and that he was interested to the whole amount insured upon the vessel. The ninth was similar, substituting Porter & Greene for Seaver. The fifth alleged it to have been made for the plaintiff\\u2019s own account and benefit, and that he was interested one quarter part in the vessel.\\nA total loss happened on the 2d of March, 1826, while the vessel was on her passage from Monte Video to Boston. The defence was, that at the time of the loss no part of the vessel was owned by the plaintiff, nor by any person for whom he had caused the insurance to be made, except Bright, (who it was alleged disavowed the action,) and Seaver.\\nAt the time of making the policy, the vessel was owned by the plaintiff, Seaver and Bright, one fourth each, and the remaining fourth by Porter & Greene. The plaintiff acted as ship\\u2019s husband in fitting her out, and had authority to make insurance on the whole vessel. By a letter of instructions, signed by the plaintiff and Seaver, dated October 22, 1825, and delivered the same day, the care of the brig and cargo was committed to Bright, who was the master, and John Pedrick 3d, with instructions to proceed from Boston to Buenos Ayres, and there deliver the cargo. The letter adds, \\u201chaving accomplished this, we wish the vessel to be sold, if it can be done at such a price as yourselves, who represent the other half of the vessel and cargo, think reasonable.\\u201d By a letter of attorney, dated the 15th of October and acknowledged before a notary public on the 21st, the plaintiff authorized Pedrick alone to make sale of his quarter part of the vessel, stating that she was then bound on a voyage to the Brazils. On the 18th of February, 1826, at Monte Video, in consideration of 1700 dollars received of Bright, Pedrick made a bill of sale of one half of the vessel to Bright and Seaver. This instrument, in the body of it, purported to be a conveyance by Pedrick personally, but was executed in the following manner : \\u2014 \\u201c John Pedrick 3d, attorney to E. Copeland jr.\\u201d, and a seal. \\u201c Porter and Greene by John Pedrick 3d,\\u201d and a seal. There was no evidence in the case of any authority from Porter & Greene to Pedrick to sell the brig, or from Seaver to Bright to purchase any part of her.\\nMarch 14th.\\nThe plaintiff contended that Pedrick had no authority to sell his share, nor that of Porter & Greene ; that if he had authority to sell for him, it was not executed in such a manner as to pass the property ; and that Bright had no authority to purchase for Seaver. The defendants insisted that Pedrick had lawful authority to sell, and that it was duly executed.\\nTwo bills of exchange, one in favor of Porter & Greene for 425 dollars, the other in favor of the plaintiff for 850 dollars, were drawn by Bright on Seaver for the price agreed for the purchase between Bright and Pedrick, 425 dollars being paid in cash towards the share of Porter & Greene, and passed to their credit in Pedrick\\u2019s account with them. These bills were remitted by Pedrick-, but on presentment were not accepted, but were protested ; and they were also protested for non-payment. The protest for non-acceptance was before notice of the loss of the brig was received.\\nOn the 23d of March, 1827, Bright executed a sealed instrument revolting the authority of the plaintiff to claim of the defendants indemnification on account of the loss of Bright\\u2019s quarter part insured as before mentioned ; and notice of such revocation was given on the 22d of November, 1827, (pending this action,) to the defendants, accompanied with a demand in Bright\\u2019s own name for indemnification, and on the 23d to the plaintiff.\\nThe defendants contended, that from certain correspondence in the case between them and the plaintiff, it appeared that there was, in point of law, a ratification of the doings of Pedrick in regard to the sale of the brig ; which legal inference was denied by the plaintiff.\\nIn order to have the matters of law arising on trie several instruments settled, as also the effect of the correspondence, a verdict was taken for the plaintiff, subject to the opinion of the Court.\\nFletcher, for the defendant.\\nThe interest of the persons for whom the action is brought, must be proved as it is alleged. Gardner v. Bedford Ins. Co., 17 Mass. R. 613. The plain tiff could originally recover, if at all, only on the first count ; but Bright has revoked the authority to prosecute for his ben. efit, and the proof does not now support that count. Paley Princ. & Ag. 134, 135; 3 Chit. Com. & Manuf. 223, 224; Bristow v. Taylor, 2 Stark. R. 50; Sargent v. Morris, 3 Barn. & Aid. 281.\\nMarch 29th\\nOn the counts alleging the whole interest insured to have been in some one of the owners of the vessel, the plaintiff cannot recover, because the proof is, that no more than a quarter was owned by any individual. Graves v. Boston Mar. Ins. Co. 2 Cranch, 419; Lawrence v. Sebor, 2 Caines\\u2019s R. 203; Perchard v. Whitmore, 2 Bos. & Pul. 155, note.\\nThe interest of the plaintiff and of Porter & Greene in the property insured, had been transferred before the loss ; the plaintiff therefore cannot recover in this, nor in any suit, for the loss on two quarters of the vessel. Phillips on Ins. 27. The bill of sale, it is true, is informal, and if it had relation to real estate, would be invalid, as Pedrick represents himself to be the grantor ; but a ship may be transferred without deed, and the form of the instrument is consequently immaterial. It will be objected that Bright had no authority to purchase for Seaver ; but the effect of that would be only to make Bright himself the purchaser.\\nAdmitting that in consequence of the letter of instructions giving a joint authority, Pedrick alone had no power to sell nor Bright to purchase, yet in fact there has been a ratification of the sale, at least so far as regards the plaintiff and Seaver. Pedrick and Bright, by letters dated in February, 1826, informed the plaintiff of the sale, and he, after the receipt of them, wrote to the defendants that Seaver and Bright were the sole owners of the vessel ; and on the 26th of April a policy was made out accordingly, and Seaver gave his note for the premium.\\nCurtis, contra,\\nreferred to most of the authorities cited in the opinion of the Court ; and in regard to Bright\\u2019s interference in the action, he cited Offley v. Warde, 1 Lev. 235, and Doe v. Brewer, 4 Maule & Selw. 300.\", \"word_count\": \"3659\", \"char_count\": \"20500\", \"text\": \"Morton J.\\ndelivered the opinion of the Court. This is an action of assumpsit on a policy of insurance upon the brig Joseph for six months. The loss within that time by a peril insured against, and a reasonable notice and offer to abandon, are admitted.\\nThe plaintiff procured the insurance to be made in his own name, for whom it might concern, and now alleges that it was made for the account and benefit of himself and three others, each of whom he avers was owner of one quarter part at the time of the loss as well as at the date of the policy.\\nIt is agreed by the defendants, that the several persons named in the declaration were interested in the manner alleged, at the time of effecting the insurance ; and the defence is, that the plaintiff and Porter & Greene had sold their parts of the vessel before the loss, and at that time had no insurable inter est in her.\\nBefore the loss, John Pedrick, assuming to act as the attorney of the plaintiff and of Porter & Greene, executed a bill of sale purporting to convey their half of the vessel to Bright and Seaver, the owners of the other half. The first inquiry will be whether any thing passed by this instrument.\\nPedrick's authority to convey must have been derived either . from the power of attorney of the plaintiff, or from the letter of instructions from the plaintiff and Seaver to Pedrick and Bright of a subsequent date. There is no evidence in the case of any other authority from either of the former owners. Neither of these was executed by Porter & Greene, and the act of Pedrick was wholly unauthorized by them.\\nThat the power of attorney, while in force, authorized Pedrick to sell the plaintiff's quarter, cannot be questioned. But the letter of instructions subsequently written by the plaintiff and Seaver, gave to Pedrick and Bright a joint authority to sell the two quarters of the plaintiff and Seaver. This was inconsistent with the authority before given by the plaintiff to Pedrick alone, and when he received the instructions, he must have understood them as a substitute for the former authority They must therefore be considered a revocation of the power of attorney.\\nThe letter of instructions conveyed to Pedrick and Bright a joint authority, which neither of them separately could execute. Co. Litt. 112 b. 181 b; Paley on Principal & Agent, 129; First Par. in Sutton v. Cole, 3 Pick. 244. The bill of sale was therefore unauthorized. It is manifest, too, that even had there been sufficient authority in the agent, it was not properly executed. The deed ought to have been in the name of the principal, instead of the agent. It is not now the deed of the principal. Paley, 131, 132, 133, and cases there cited.\\nThis bill of sale was therefore ineffectual to pass the property of the plaintiff and Porter & Greene ; unless power may be derived from a subsequent ratification. The instrument is not so far void as to be incapable of becoming effectual by the adoption of the principals ; and this ratification may be by implication, as well as by a direct sanction. The receipt by the owner, of the purchase money, would necessarily imply a ratification of the sale ; but to be binding on the principal, the \\u2022 ratification must be made with a full knowledge of all the circumstances. Paley, 143, 144; Smith v. Cologan, 2 T. R. 189, note; Fenn v. Harrison, 3 T. R. 757.\\nIn the case under consideration Pedrick communicated to the plaintiff the fact that he had sold, the price, and the names of the purchasers, and other circumstances attending the sale. The plaintiff expressed no disapprobation, but in applying for a renewal of the policy for another term of six months, exPressty stated that the brig was owned by. Seaver and Bright. This could only have been true in consequence of his approbation of the sale by Pedrick. Also, upon the receipt of the bill drawn in payment for his quarter of the brig, he presented it for acceptance and demanded payment of it. These acts are sufficient evidence of a ratification on the part of the plaintiff.\\nThe ratification of the sale on the part of Porter & Greene does not so clearly appear. According to the testimony of Pedrick, the money received in part payment for their quarter was placed to their credit and settled in their account. From the language used in his deposition, it does not clearly appear that this settlement was made with the knowledge and assent of Porter & Greene. They did, however, upon the receipt of the bill drawn for the remainder of the price for which their quarter was sold, present it for acceptance and for payment. These circumstances strongly tend to show, and perhaps will warrant the inference, that they assented to and confirmed the sale on their part. But still the question will recur, whether this sale passed any thing to Bright and Seaver. Could Bright, being agent to sell, purchase either for himself or as agent for another ?\\nIt is a rule of law well settled, and founded in the clearest principles of justice and sound policy, that the agent of the seller cannot become the purchaser or the agent of the purchaser. These relations are utterly incompatible with each other. Paley, 32; Barker v. Mar. Ins. Co. 2 Mason, 369; Church v. Mar. Ins. Co. 1 Mason, 341. The attempt of Bright to become the purchaser of a part of the vessel was a breach of trust on his part, and could not divest the other owners of their interest.\\nSeaver had given to Bright no power to purchase for him, > but had authorized and instructed him with Pedrick to sell his part. This act of Bright was therefore wholly unauthorized. Has Seaver ever adopted it ? After he received information of the purchase, he procured insurance to be effected upon the vessel in his name for whom it might concern, for six months, to commence at the expiration of the former policy. It does not appear that he made a statement, or that any was made with his knowledge, of the names of the owners. This insurance might as well be procured by him, being owner of a quarter, as if he was owner of half. Nothing tending to show a ratification can be inferred from this circumstance.\\nAnd the first opportunity which he has to act decisively upon the subject, he repudiates the contract. Before information of the loss of the vessel reached him, he refused to accept Bright's bills drawn in payment of the half which he had purchased. To hold this transfer to be valid, would be to compel him to become a purchaser without his consent.\\nNotwithstanding this breach of confidence on the part of Bright, the parties interested might waive all objection to his conduct and ratify his contract. And we have already seen that the acts of the plaintiff and of Porter & Greene have a strong tendency to show such waiver and ratification. But these acts were founded upon a reasonable presumption, that Seaver and Bright were to become joint purchasers and jointly responsible for the purchase money. The refusal of Seaver to adopt the contract and to accept Bright's bill, produced such an entire change of circumstances as furnished to the plaintiff and to Porter & Greene sufficient reason for disavowing a contract which perhaps before they had intended to adopt. The bill of sale purporting to be a joint contract between the parties passed no property to Bright and Seaver, or either of them, and produced no change in the ownership of the vessel.\\nWe are therefore all of opinion, upon the facts disclosed in the case, that Pedrick had no authority to make sale of the half of the brig, that Bright had no legal right to become the purchaser, either for himself or for Seaver, and that these unauthorized acts have never been so ratified as to change the property of the former owners. The interest in the vessel remained the same at the time of the loss that it was at the date of the policy ; and is correctly stated in the first count in the plaintiff's declaration.\\nSince the commencement of the' action Bright has disavowed it and annulled the authority of the plaintiff to prose cute it, so far as that authority was derived from him. He might well prohibit the plaintiff from maintaining the suit for his proportion of the loss ; but the policy was in the name of the plaintiff. The action is brought by him for the benefit of himself and the other owners ; and it would be manifestly unjust that one owner, having received payment for his part of the loss, having compromised with the underwriters, or being unwilling to litigate the claim, should have the power to defeat the legal rights of the others. Bright might well revoke the power which he had given to the plaintiff to prosecute for his benefit, but he could not annul the authority which the other owners had given to sue for them, much less the right which he had to maintain the action in his own name for his own benefit. We are therefore well satisfied, that the plaintiff is entitled to judgment for his own quarter and those of Seaver and Porter & Greene, and the verdict must be amended accordingly.\\nApril 4th.\\nApril 5th.\\nAfter this opinion was delivered, Fletcher insisted that the declaration was insufficient. The plaintiff, being the agent in a joint contract for four, the action brought by him must be to enforce the whole contract. Besides, there is no count alleging the interest to be in three only, and the counts in which the whole interest is averred to be in some one of the three, are not supported by the evidence.\\nBut per Curiam. We were inclined to think the first count sufficient to sustain a judgment for three quarters of the sum insured ; that as it stated correctly the interest of all the parties for whose benefit the suit was originally brought, the revocation by Bright of the authority to prosecute any further on his behalf, ought not to be allowed to prejudice the other parties concerned ; but it is not necessary to determine this, as we are of opinion that judgment may be rendered for the plaintiff upon the other counts.\\nSee 2nd ed. 245 and notes; 2 Kent's Comm. (3d ed.) 633, note b, and eases there cited.\\nThe rule that an attorney or agent, to bind his principal, must sign the name of the principal, applies only to deeds and not to simple contracts. New England Mar. Ins Co. v. De Wolf, 8 Pick. 56; Andrews v. Estes, 2 Fairfield, 267. See Spencer v. Field, 10 Wendell, 87; Means v. Morrison, l Breese, 172; Minard v. Mead, 7 Wendell, 68; Elwell v. Shaw, 1 Greenl. 339; Stinchfield v. Little, 1 Greenl. 231; Colburn v. Ellenwood, 4 N. Hampsh. R. 102; Jordan v. Trice, 6 Yerger, 479; Magill v. Hinsdale, 6 Connect. R. 464; Hovey v. Magill, 8 Connect. R 680; Berkeley v. Hardy, 8 Dowl. & Ryl. 102; 5 Barn. & Cressw. 355; Pentz v. Stanton, 10 Wendell, 271; Hills v. Bannister, 8 Cowen, 31; Barker v. Mechanics Fire Ins. Co. 3 Wendell, 94; Shelton v. Darling, 2 Connect R. 435; 2 Kent's Comm. (3d ed.) 631 and note E; Spencer v. Field, 10 Wendell, 87; Montgomery v. Dorion, 7 N. Hampsh. R. 475.\\nSee Hanford v. M'Nair, 9 Wendell, 54; Blood v. Goodrich, 9 Wendell, 68; 2 Kent's Comm. (3d ed.) 614.\\nSee Thorndike v. Godfrey, 3 Greenl 429; 2 Kent's Comm. (3d ed.) 616; Owings v. Hull, 9 Peters, 629; Cunningham v. Bell, 5 Mason, 168; Belly. Cunningham, 3 Peters, 81.\\nSee 1 Story's Comm. Eq. 310 to 312; Rothschild v. Brookman, 2 Dow & Clark, 188; 5 Bligh, N. S. 165; 3 Simon, 153; Crome v. Bullard,2 Cox 253; Lees v. Nutt\\u00e1ll, 1 Russ. & Mylne, 53.\\nSee 2 Phillips on Ins. 379.\"}"

mass/2027007.json

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+"{\"id\": \"2027007\", \"name\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe\", \"name_abbreviation\": \"Kincaid v. Howe\", \"decision_date\": \"1813-06\", \"docket_number\": \"\", \"first_page\": \"211\", \"last_page\": \"213\", \"citations\": \"9 Tyng 203\", \"volume\": \"10\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:44:16.222512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe.\", \"head_matter\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe.\\nA B, being the younger of the same name in the same town, brought an action by the name of A B only, omitting the addition of junior. The Common Pleas refused to allow him to amend his writ by making the addition, and to give in evidence the written promise of the defendant, made to the plaintiff; by the name of A B, junior.\\nUpon error brought in this Court, the judgment rendered against the plaintiff; upon a verdict taken in the court below, was reversed, and a new trial ordered.\\nThe writ of error in this case was sued to obtain the reversal o\\u00ed a judgment of the Court of Common Pleas for this county, rendered May term, 1810, in an action wherein the said Kincaid was plaintiff, and the said Howe defendant. * The origi- [ * 204 ] nal action was case upon two promissory notes made by the defendant, and payable to Samuel Kincaid, Jun., or order; and was originally commenced before a justice of the peace for this county, and tried by him upon the general issue. The plaintiff having obtained a judgment before the justice in his favor, the defendant appealed to the Common Pleas.\\nAfter several continuances in that court, the plaintiff moved for leave to amend his writ and declaration, by adding junior to his name; it being agreed that in the place of the plaintiff\\u2019s residence his father, named Samuel Kincaid, also lived at the time of serving the original writ. The court refused to allow the amendment, and, when the action came to trial, they also refused to permit the notes so declared on to be read in evidence, although the defendant\\u2019s attorney admitted that the said notes were made and signed by the defendant. To these decisions of the Common Pleas the plaintiff offered a bill of exceptions at the common law, containing the foregoing facts, thus made part of the record ; and the same facts constituted the errors assigned on this writ of error.\\nSiebbins for the plaintiff in error.\\nWilde for the defendant in error.\", \"word_count\": \"1110\", \"char_count\": \"6216\", \"text\": \"Per Curiam.\\nIt is not easy to conjecture the reasons by which the Court of Common Pleas were prevailed on to reject finally the proposed amendment, by which the plaintiff's writ and declaration would have been rendered conformable to the fact and truth of the case, in every descriptive circumstance; especially as the court seem to have been apprized that the motion for the amendment was directed to the purpose of conforming the plaintiff's declarat.on to the state of his evidence, and as, in their apprehension, the amendment was essential to enable the plaintiff to proceed in his action. If the court had rejected the amendment as unnecessary, and had proceeded afterwards to receive the notes in evidence, considering the variance as altogether immaterial, we should have thought the decision much nearer to the legal principles applicable to the case.\\n* Junior, or younger, is no part of the name; but\\nan addition by use, and serving for a convenient distinction, when a father and son have each of them the same Christian and surname, or when two persons of the same names and occupations reside in the same town. And it seems to be only in the case of a father and son of the same names, that the addition is required to be stated in a writ, where the son is made defendant, and other words describing the defendant as the son, are equivalent. And if the description is omitted, and the right defendant appears and pleads, he cannot afterwards object for the uncertainty. And if the father appears, the plaintiff may aver that he is not the person sued, and may then show, by additional averments or suggestions on the record, that the son is the party against whom the writ was directed, and upon whom it had been served.\\nWhere the omission respects the plaintiff, it is not a circumstance which can be taken advantage of in abatement: if at all, it must be by objecting to the written evidence, where the variance is discoverable. But even then, and in the case of a deed, where more precision in recitals is generally required, a variance in any addition or description of the person is considered as immaterial, and not to be taken advantage of in pleading, and, of course, not in objecting to the deed as evidence; for there a greater latitude is indulged than when the exception is by pleading or demurring for the variance, upon oyer of the deed.\\nIn the case at bar, a precision, not to any purpose perhaps aoso lately essential, might have been obtained by permitting the amendment ; and an objection would have been avoided, which was merely captious and dilatory in its nature, not at all affecting the merits of the action, or important in any degree to the security of the party sued, or to any other person,\\nThe judgment of the Court of Common Pleas is reversed, and a new trial is to be had at the bar of this Court.\\nADDITIONAL NOTE.\\n[An amendment in the name of the plaintiff will be granted, where it is wrongly spelled. \\u2014 Furniss vs. Ellis, 2 Brock. 14. \\u2014 So in the name of a corporation, which is sued under a wrong name.\\u2014 Burnham vs. Savings, &e., 5 JV. H. 573.\\nThe omission, in a warrant, of the defendant's Christian name cannot be amended. \\u2014 Johnston vs. McGuin, 4 Dev. 279.\\nA mistake in the name of an execution plaintiff may be amended, after a delivery bond taken in the right name, and execution thereupon, if the error is a clerical one, and the record contains enough to amend by. \\u2014 Bank vs. Lacy, 1 Monr. 7.\\nSee Bowman vs. Green, 6 Monr. 341. \\u2014 Cain vs. Kersay, 1 Yerg. 443.\\u2014 Lynes vs The State, 5 Por. 236.\\u2014F. H.]\\n[Commonwealth vs. Perkins, 1 Pick. 388. \\u2014 Ed ]\\nCom. Dig., Abatement, F, 21, cites Theol. Dig. 1. 6, c. 13, \\u00a7 7, 8, 9, 10, &c., 44 E, 3, 34, b, 39; H, 6, 46. \\u2014 1 Sid. 247. \\u2014 Salk. 7.\\nCom. Dig., Abatement, H, 9, cites Theol. Dig. 1. 9, c. 3, \\u00a7 10, &c.\\n[The permitting amendments is a matter of discretion. \\u2014 Mandeville & Al. vs. Wilson, 5 Crunch, 14. \\u2014 A superior court will not direct the court below to allow the proceedings to be amended. \\u2014 Sheely vs. Mandeville & Al., 6 Cranch, 253. \\u2014 And the allowance or disallowance of amendments is not a matter for which error lies.\\u2014 Chirac & Al. vs. Rheinecker, 11 Whea. 280.\\u2014 Thacker vs. Miller, 13 Mass. Rep. 270 \\u2014 Ed.]\"}"

mass/2038895.json

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+"{\"id\": \"2038895\", \"name\": \"James Riddle versus Benjamin F. Varnum\", \"name_abbreviation\": \"Riddle v. Varnum\", \"decision_date\": \"1838-06-25\", \"docket_number\": \"\", \"first_page\": \"280\", \"last_page\": \"285\", \"citations\": \"20 Pick. 280\", \"volume\": \"37\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:05:55.438579+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Riddle versus Benjamin F. Varnum.\", \"head_matter\": \"James Riddle versus Benjamin F. Varnum.\\nWhere some act remains to be done in relation to the articles which are the subject of a sale, as that of weighing or measuring, and there is no evidence tending tc show the intention of the parties to make an absolute and complete sale, the prc^ierty in such articles does not pass to the vendee, until such act is performed. But it is otherwise, if the payment of the purchase money is not a condition precedent to the transfer, and it appeals that the parties intended that the sale should be complete before the articles were weighed or measured.\\nIt. who was the owner of a quantity of timber, lying in a mill pond at the termina tion of a canal, under the charge of the superintendent of the canal, entered into a contract witli C. for the sale thereof, in pursuance of which C. signed the following'writing : \\u201cReceived of R. four shots of white oak plank, &c. for which I promise to pay him twenty-six dollars per thousand, board measure. The above timber delivered in the mill pond, &c. ; and R., at the same time, executed a writing in the following words : \\u201cReceived of C. two hundred dollars in part pay for the timber in question. \\u201cRemainder to be paid in ninety dajs from surveying. The canaliage to be paid by C., when he takes the plank and timber from the pond. R. further agreed, that C. might procure the timber to be measured by the superintendent of the canal, and that he would abide by the measurement. Before the timber was measured, C. became insolvent, and it was attached by one of his creditors. It was held, that if there was\\\" a delivery to C., and if it was the intention of the parties to make the sale complete before the measure of the timber was ascertained, the property was vested in C. at the time of the attachment.\\nTrover for a quantity of timber attached in January 1835, by a deputy of the defendant, who was sheriff of the county of Middlesex, upon a writ issued in favor of one Trowbridge against Curtis & Barstow.\\nThe trial was before Wilde J.\\nThe plaintiff proved, that in the autumn or winter of 1834, he was the owner of the timber, and sent the same by the Middlesex Canal from New Hampshire to Charlestown ; and that it was left in the pond at the termination of the canal in Charlestown, in the charge of one Greenleaf, the superintendent of the canal in that town, where it remained at the time of the attachment.\\nThe defendant introduced Curtis as a witness, who testified, that the plaintiff, a short time previously to December 17, 1834, and while the timber was lying in the pond frozen up, came to Boston, and proposed to sell it to the witness ; thal the plaintiff and the witness went to Charlestown, and examined it; that upon their return to Boston, an agreement was made for the purchase thereof; that the witness, on Decern ber 17, 1834, paid the plaintiff the sum of $200, and thereupon the two following instruments were executed by the parties respectively, and interchanged.\\n\\u201c Received of James Riddle four shots of white oak plank, for which I promise to pay him twenty-six dollars per thous- and board measure. Also one shot of black oak plank,\\u201d &c \\u201c The above timber delivered in the mill pond at Charlestown locks, and plank. Boston, December 17, 1834. Curtis & Barstow.\\u201d\\n\\u201c Received of Curtis & Barstow two hundred uollars in part pay for five shots of oak plank, Sic. in the mill pond at Charlestown, as follows, white oak plank, twenty-six dollars a thousand, board measure,\\u201d &c. \\u201c Remainder to be paid in ninety days from surveying. The canallage to be paid by Curtis & Barstow, when they take the plank, &c. from the pond. The amount for canallage to be deducted from the residue of money due for the above plank, &c. when settled for. Boston, December 17, 1834. James Riddle \\u201d\\nCurtis also testified, that previously to their separation, the plaintiff agreed, that the witness might procure the timber to be measured by Greenleaf, and that he, the plaintiff, would abide by such admeasurement.\\nThe defendant called one Josselyn, as a witness, who testified, that in June 1835, he met the plaintiff in Quincy, on his way to see Curtis, who lived in Scituate ; that the plaintiff told him, that his object was to get up his contract which he had given Curtis, and then get back the timber which was attached ; that the witness told the plaintiff, that the timber was delivered, and that he could not do as he proposed ; and that the plaintiff replied, that if he could get back the paper or receipt held by Curtis, he could accomplish his purpose.\\nIt further appeared, that after the attachment, the timber and plank was receipted for by Greenleaf, at the request of the plaintiff, and sold by the agreement of the parties ; and that the proceeds, amounting to the sum of $ 336\\u201875, were paid over to the defendant, who applied them in part satisfaction of the execution subsequently issued in favor of Trowbridge.\\nUpon this evidence, the defendant contended, that the delivery as well as the sale of the timber by the plaintiff to Curtis &, Barstow, was understood and agreed by them,.at the time, to be complete, and he desired that the case might go to the jury upon this point; but as the plaintiff consented, that, if a verdict of the jury for the defendant could by law be sustained, judgment might be entered for the defendant, the case, was taken from the jury and submitted to the Court.\\nJune 13th.\\nIf such verdict could be sustained, judgment was to be rendered for the defendant; otherwise, for the plaintiff.\\nSewall, for the plaintiff.\\nThe property in the timber had not vested in Curtis &, Barstow at the time of the attachment, Decause there had been no admeasurement of it. If it had been destroyed, it would have been impossible to have ascertained the amount of the purchase money, and the plaintiff must have borne the loss. The contract was executory. Hanson v. Meyer, 6 East, 614 ; Rugg v. Minett, 11 East, 210 ; Long on Sales, 153 et seq. ; Shepley v. Davis, 5 Taunt. 617; Simmons v. Swift, 8 Dowl. & Ryl. 693 ; S. C. 5 Barn. & Cressw. 857 ; Brown on Sales, 358 ; Dig. lib. 18, tit. 1, c. 35, \\u00a7\\u00a7 5, 6, 7; Outwater v. Dodge, 7 Cowen, 85 ; M'Donald v. Hewett, 15 Johns. R. 349 ; Rapelye v. Mackie, 6 Cowen, 250; Brewer v. Smith, 3 Greenl. 45 ; Ward v. Shaw, 7 Wendell, 404 ; Andrew v. Dieterich, 14 Wendell, 31.\\nWhere the delivery is conditional, the vendor has a right lo reclaim, in case the condition is not performed. Reed v. Upton, 10 Pick. 522; D\\u2019Wolf v. Babbelt, 4 Mason, 289 ; Haggerty v. Palmer, 6 Johns. Ch. R. 437 ; Hussey v. Thornton, 4 Mass. R. 405 ; Whitwell v. Vincent, 4 Pick. 449.\\nThe right of stoppage in transitu existed in this case. Greenleaf was the agent of the plaintiff, and the timber continued in his possession. Curtis & Barstow had no right to take possession, till it was measured and the canallage paid ; and even then their insolvency would have entitled the plaintiff to retain the timber. Long on Sales, 186, 187 ; Stubbs v. Lund, 7 Mass. R. 453 ; Naylor v. Dennie, 8 Pick. 198.\\nBartlett, for the defendant,\\nto the point, that as between the parties to a sale, the property in the thing sold vests in the vendee before delivery, if the contract is complete, delivery only being necessary in reference to third parties, cited Noy\\u2019s Maxims, c. 42 ; to the point, that the property had vested in Curtis &s Barstow, at the time of the attachment, as nothing remained to be done by the vendor, Tarling v. Baxter, 6 Barn. & Cressw. 364 ; and to the point, that even where something remains to be done by the vendor, the property in the thing sold vests m the vendee, if the contract shows that it was the intention of the parties that the property should pass, Macomber v. Parker, 13 Pick. 175 ; Hinde v. Whitehouse, 7 East, 558 ; Andrew v. Dieterich, 14 Wendell, 31.\\nJune 25th.\", \"word_count\": \"2274\", \"char_count\": \"12723\", \"text\": \"Dewey J.\\ndelivered the opinion of the Court. The question presented for adjudication is, whether upon the evidence detailed in the report of this case, it would have been competent for the jury to return a verdict in favor of the defendant. If such a verdict could by law be sustained, the parties agree, that judgment shall be entered for the defendant.\\nThe point in controversy is, as to the property in certain timber and plank attached by the deputy of the defendant as belonging to Curtis & Barstow. Was the property in these articles in the plaintiff, or in Curtis & Barstow, at the time of the attachment ?\\nIt is admitted by the plaintiff, that a contract in reference to the sale of the articles had been made, between himself and Curtis & Barstow, but he denies that the sale was so far completed as to vest, the property in Curtis & Barstow prior to the attachment.\\nThe leading objection to the alleged transfer of the property, is founded upon the fact, that the timber and plank were contracted for at a certain price, by the thousand feet, and that at the time of the attachment, they had not been surveyed and the measure of them ascertained.\\nThe general doctrine on this subject is, undoubtedly, that when some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract; and until it is performed, the property does not pass to the vendee. But in the case of sales where the property to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected, and the interest passes immediately to the vendee, although the weight or measure of the articles sold remains yet to be ascertained. Such a case presents a question of the intention of the parties to the contract. The party affirming the sale must satisfy the jury, that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold, at the rate agreed upon.\\nThese views are fully sustained by the decision of this Court in the case of Macomber v. Parker, 13 Pick. 182. The objection was there taken in relation to a contract for the sale of a quantity of bricks, in which it was stipulated, that the bricks were to be counted ; and this not having been done before an attachment of the same, it was insisted, that the sale was not complete. But it was held, that if it was the intent of the parties to the contract to complete the sale prior to the counting, then the property might well pass, although that operation might yet remain fo be done, for the purpose of ascertaining the amount to be paid for the article sold. See also Hawes v. Watson, 2 Barn. & Cressw. 540.\\nThe Court are of the opinion, that upon a proper application of these principles to the present case, the jury would have been warranted from the testimony to find, that it was the intention of the parties here contracting to make the sale of the articles complete and absolute before the measure of them was ascertained.\\nThere is evidence in the case, from which the jury might have inferred a delivery to Curtis &i Barstow of the articles sold. This will be found in the written memorandum which the plaintiff received from the vendees, and in the testimony of Josselyn as to a conversation between himself and the plaintiff. In connexion with this may be considered the evidence of an actual payment of two hundred dollars on account of the purchase, and the fact that payment for the residue was not a condition precedent to the delivery, inasmuch as, by the terms of the contract, a credit of ninety days was given. If such a delivery were found by the jury, the sale might be considered as perfected, and the property would pass to the vendees, as is well settled.\\nIt was further contended, that the plaintiff might avoid the sale and reclaim the goods, if the vendee became insolvent before payment was made for them. This right, we apprehend, exists only while the goods are in the possession of the vendor or of a carrier employed to convey the same to the vendee, and with the change of possession the lien of the vendor on the goods for the payment of the price of the same is wholly lost, If the jury would have been authorized to infer a delivery to the vendee, tliev might also have found against the lien of the plaintiff.\\nUpon the whole matter, the Court are of opinion, that the jury would have been authorized to return a verdict for the defendant; and agreeably to the stipulations of the parties, the plaintiff must become nonsuit.\"}"

mass/2067545.json

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+"{\"id\": \"2067545\", \"name\": \"Thomas Saunders vs. Elizabeth Robinson & others\", \"name_abbreviation\": \"Saunders v. Robinson\", \"decision_date\": \"1843-11\", \"docket_number\": \"\", \"first_page\": \"310\", \"last_page\": \"316\", \"citations\": \"7 Met. 310\", \"volume\": \"48\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:06:01.465550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas Saunders vs. Elizabeth Robinson & others.\", \"head_matter\": \"Thomas Saunders vs. Elizabeth Robinson & others.\\nA. bought land of B. under a parol agreement; built a house thereon; occupied part of it, and leased the other part: B. mortgaged the land to C., with the knowledge and consent of A., and C. brought a writ of entry against A. and B. and A.\\u2019s lessee: A. disclaimed all title to the demanded premises, except the house: C. discontinued against B. and took a conditional judgment against A.\\u2019s lessee only; and on the writ of habere facias, which issued on that judgment, A. was removed from the house: After A.\\u2019s death, his widow and children took possession of the house, and C. brought a writ of entry against them: Held, that A.\\u2019s disclaimer, in the Former action, was conclusive against their right to compensation, under the Rev. Sts. c. 101, $ 19, for improvements made by him on the demanded premises. Held also, that they did not hold possession under a title which they had reason to believe good, and were therefore not entitled, under \\u00a7 20 of that chapter, to compensation for improvements made by him.\\nWrit of entry to recover a lot of land, with a dwelling-house thereon, in Lynn. The tenants pleaded ml disseizin, and entered on the record a claim, under Rev. Sts. c. 101, for allowance for improvements made on the demanded premises by William P. Robinson, (under whom they claimed,) in case judgment should be rendered for the demandant. Trial before Shaw, C. J., who reported the case as follows:\\nIt appeared that the tenants were the widow and the two minor children and heirs of William P. Robinson, deceased ; said two children appearing and defending by their mother, the other tenant, as their next friend and guardian.\\nBoth parties admitted that the demanded premises formerly belonged to Henry A. Breed.\\nThe demandant, to support his action, gave in evidence a mortgage deed made to him by Henry A. Breed, September 4th 1835, to secure payment of $ 1500. On that mortgage, it appeared that the demandant brought a suit, in 1838, against said Breed, the Nahant Bank, and the said William P. Robinson, under whom the tenants claim; that in the progress of that suit, the demandant discontinued against Breed ; that Robinson filed a disclaimer as to all except the dwelling-house ; that the demandant took a conditional judgment against the Nahant Bank only, at April term 1839, and that as the money was not paid, the demandant sued out a writ of possession, and deliv ered it to the sheriff for service, by whom seizin and possession were delivered to the demandant on the 20th of June 1839,\\nThe ground of defence taken by the tenants was, that in 1832, Henry A. Breed, being owner of the land, entered into a parol agreement with said William P. Robinson, to sell him the land for $ 300; that this sum was charged to said Robinson by said Breed, in account; that Breed charged him at least one year\\u2019s interest on said sum ; that this account was afterwards settled, by means of w'hich the said sum was paid; that in 1835 Robinson proceeded to build a double house on the land, at the cost of four or five thousand dollars ; that he had the lumber ot said Breed; but that it was charged to Robinson, as lumber sold: that Robinson employed the masons, painters and other mecnanics, being himself a carpenter; and that the house was built on his account.\\nIt appeared that Robinson continued in the occupation of the house, dwelling in part, and letting part, till July 20th 1839, when he was removed by the execution of the writ of possession before mentioned: That soon afterwards Robinson, with his wife and children, left Lynn, (whether for a permanency, or not, did not appear,) went to Boston for a short time, and thence to the State of Maine, where he died: That his wife, with her children, afterwards returned to Lynn, and by some means, which did not definitely appear, obtained possession of said house : That a process of forcible entry and detainer was instituted against her by the present demandant, which was formerly before this court, and which was decided against him, on the ground that no forcible entry or detainer was proved ; (5 Met. 343 ;) and afterwards this action was brought, viz. on the 22d of October 1842.\\nThe defendants proposed to rely on their claim for improvements, and to be allowed for the value of the buildings erected on the premises by Robinson. Several objections were taken to the right of the defendants to go into proof of improvements. 1. It was testified by Henry A. Breed, that when he made the mortgage to the demandant, Robinson well knew the fact and consented thereto. 2. It was objected that the defendants were estopped from claiming for improvements, by the disclaimer of Robinson, under whom they claim, in the action before mentioned, which was brought in 1838. 3. It was objected that this claim for improvements was barred by the provision in the Rev. Sts. c. 101, $ 50, excluding such claim when the action is brought by a mortgagee, or his heirs or assigns, against a mortgagor, or his heirs or assigns. 4. Another objection was, that on the 7th of October 1837, Robinson, by deed duly executed and recorded, conveyed all his estate and interest in the premises to Henry B. Newhall, who demised them, and collected some rent before June 20th 1839; and that this deed was outstanding when this action was brought. Said Newhall, on being called as a witness, testified to the execution and delivery of the deed to himbut he further stated, that he gave no consideration for the conveyance; that he took it at the request of Robinson, and considered himself as his agent in letting the house and receiving the rent prior to the service of the writ of possession; and that he had, on the day of trial, quitclaimed, by deed, all his right and interest in the estate to Mrs. Robinson, one of the tenants. 5. It was objected that the execution of the writ of possession, in June 1839, by which the demandant was put into possession \\u2014 although the judgment, as rendered, did not go against Robinson, and he was no party to that writ, and although Mrs. Robinson might afterwards have regained the possession without force \\u2014 was such an interruption of the possession of the tenants, and him under whom they claim, within six years next before the commencement of this action, as to exclude their claim for improvements under Rev. Sts. c. 101, <\\u00a7, 19.\\nThese objections were overruled, for the purposes of the trial, and the tenants gave evidence tending to show, that in 1835 and 1836 the house was erected by Robinson ; that he employed the respective mechanics who worked on the same; that, although the lumber came from Breed, yet it was charged to Robinson in account, and that the house was erected by him and at his expense; that this was done with the knowledge of Breed, and without interference on his part. There also was evidence tending to prove that Breed had failed before Robinson\\u2019s decease; that no settlement of their accounts had been made; that there were large transactions between them, and that each claimed a large balance against the other.\\nWhereupon the judge, being requested to express an opinion whether this claim for improvements was within the statute, proposed to direct the jury, that if they believed, upon the evidence, that Breed, being the owner of the land, made a parol agreement for the sale thereof to Robinson, and under that agreement Robinson, with the consent of Breed, entered and took possession, and afterwards built a house thereon, he must seek his remedy under the agreement; and that he could not afterwards, on > that ground, set up a claim for improvements against the demandant, who came in under a deed from the former proprietor: That one who enters into possession of land, with the consent of the owner, under a bond or other con tract or promise for a deed of conveyance, is a tenant and not a trespasser, and has not such a possession as will enable him to claim compensation for improvements, under Rev. Sts. c. 101, <\\u00a7> 19: That such an entry and possession is not a holding under such a defective title, as the tenants\\u2019 predecessor might have had reason to believe good, so as to entitle them to claim for improvements, under <\\u00a7> 20 of said chapter.\\nThe tenants thereupon waived their claim for compensation for improvements, and were defaulted, subject to the opinion of the whole court upon the correctness of the foregoing opinion. If the whole court are of opinion that this proposed direction to the jury was wrong, and that, notwithstanding the objections hereinbefore stated, the tenants are .entitled to improvements, then the value of the improvements, and the value of the land without them, are to be ascertained according to law, in such manner as the court may direct, and judgment is to be entered accordingly; otherwise, a general judgment is to be entered for the demandant, on the default.\\nHallett, for the tenants.\\nRobert & Ward, for the demandant.\", \"word_count\": \"2293\", \"char_count\": \"13093\", \"text\": \"Wilde, J.\\nThe only question for our present consideration is, whether the tenants are entitled to compensation for the value of any buildings or improvements made or erected on the premises by them or the person under whom they claim, accord ing to the Rev. Sts. c. 101, \\u00a7 19; for it is very clear that the} have shown no legal title to the demanded premises, which cap avail them in this action. It is true that William P. Robinson, the husband and father of the tenants, agreed to purchase the premises of Henry A. Breed, the owner; but the agreement was by parol, and he acquired no title thereby. Nor was his title by occupation valid against Breed, or the demandant to whom Breed .conveyed the premises by a deed of mortgage, and (as it was testified at the trial) with the consent of Robinson. And besides ; in an action afterwards commenced against him by the demandant, he disclaimed all title to the premises, except the dwelling-house by him erected thereon ; and this undoubt edly is conclusive as to the legal title. The only question therefore is, whether it is not conclusive also as to the claim for the value of the building and the improvements.\\nIt was argued for the tenants, that the exception in the disclaimer was intended as a reservation of Robinson's claim for improvements, and that it ought to be so construed. The answer was, that no such intention is expressed, the reservation being of the house disconnected with the land, and so is to be considered as a claim of personal property ; that by the Rev. Sts. c. 101, <\\u00a7> 21, when a tenant claims allowance for his improvements, he is bound to enter on the record a suggestion o\\u00ed such claim, with a request that the value of th\\u00e9 improvements may be ascertained and allowed to him; and that not having so claimed his improvements, he must be considered as having waived his claim under the statute. And our opinion is, that it must be so considered. We think the demandant has the same rights that he would have had if he had taken judgment against Robinson, as well as against the other defendants, in the former action. If Robinson had any right to the house, he might have removed it; or if not, the only remedy he had, after his disclaimer, for his expenditures in the building of the house, was against Breed. Against the demandant he had no claim, legal or equitable, if it is true, as Breed has testified that it is, that the mortgage to the demandant was given with the knowledge and consent of the said Robinson.\\nIf a party, having a lien upon property, stands by, encouraging the sale by the owner to a third person, without giving notice of his lien, he will not be allowed to enforce it against the purchaser, who purchased in the belief that he was to receive an unencumbered title. Such concealment is deemed fraudulent, and not to be countenanced by a court of equity.\\nThe only remaining question is, whether the tenants have proved any such possession by themselves as entitles them to compensation for their improvements. And we think clearly that they have not. In the first place, they have not proved that they have made any improvements. And in the second place, if they have in fact made any improvements, they have failed to prove any such possession as would entitle them 'o compensa tion therefor under the Rev. Sts. c. 101. They have not had possession for the term of six years, and are not entitled to compensation under <\\u00a7.19 of that chapter. And they are not so entitled under <\\u00a7> 20, because they have failed to prove that they held the premises under a title which they had reason to believe good. On the contrary, this seems to be satisfactorily disproved by the evidence. William P. Robinson was sued by the demandant for the recovery of the possession of the premises, and he thereupon disclaimed his title thereto, and quitted the pos session, with his family. After this, it cannot be presumed that his widow and children could reasonably believe that they had a good title from him. On no ground therefore can the tenants claim; and according to the agreement of the parties, we arc to enter a general\\nJudgment for the demandant\"}"

mass/2079295.json

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+"{\"id\": \"2079295\", \"name\": \"Charles W. Walker vs. John Penniman\", \"name_abbreviation\": \"Walker v. Penniman\", \"decision_date\": \"1857-03\", \"docket_number\": \"\", \"first_page\": \"233\", \"last_page\": \"237\", \"citations\": \"8 Gray 233\", \"volume\": \"74\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:37:56.586670+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles W. Walker vs. John Penniman.\", \"head_matter\": \"Charles W. Walker vs. John Penniman.\\nIn an action on an agreement to pay a debt contracted by another, the jury were instructed that whether the case was within the statute of frauds depended on the question whether the defendant\\u2019s contract was new.and original, or a mere promise to pay the existing debt of another and collateral j and that if the evidence satisfied them that at the time of the defendant\\u2019s promise to pay the amount to the plaintiff, it was also . agreed that the claim against the original debtor should be cancelled and given up to him, and it was so cancelled and given up in pursuance of such agreement, \\u201c it would constitute a good consideration, not within the statute of frauds.\\u201d Held, that the defendant had no ground of exception.\\nThe question whether a verdict is against evidence cannot be raised upon a bill of exceptions.\\nAction of contract to recover $238.25, \\u201c which the defendant promised to pay the plaintiff, in consideration that he would enter into his employ in the making and repairing of piano fortes.\\u201d Answer, a denial of the promise; and the statute of frauds.\\nAt the trial in the superior court of Suffolk at January term 1856, before Huntington, J., the plaintiff introduced evidence that before the 8th of September 1853 the defendant had been in the habit of furnishing stock to one Hamblin to make pianofortes, and, when they were finished, advancing the money for the labor, and taking bills of sale of them; that on said 8th of September two pianofortes were finished, and in the depot fot sale, and the plaintiff threatened to attach them, or assert a lien for his work upon them, unless a note for $238.25, then due from Hamblin to him for labor, (with which note and labor the defendant was in no way connected,) was paid; and that it was then agreed between the plaintiff and the defendant, in the presence of Hamblin, that the plaintiff should finish up all the unfinished work for the defendant, and be paid the same prices which the defendant was then paying Hamblin; and the defendant agreed \\u201c that if the plaintiff would go on and finish up the instruments, the defendant would pay him the amount of the note,\\u201d to which the plaintiff consented, and agreed to give up the note and abandon all claim on Hamblin, and afterwards did give up the note.\\nThe bill of exceptions, after reciting this evidence and some testimony introduced by the defendant, stated that \\u201c there was other evidence in the case, which the defendant and the plaintiff respectively relied on to maintain the issues raised.\\u201d\\nThe defendant\\u2019s counsel, in his closing argument to the jury, contended \\u201c that the evidence, as reported, even if the jury believed it to be true, was not sufficient to bind the defendant to pay the note; and that it proved no such consideration between the parties, as would take the case out of the statute of frauds.\\u201d\\nThe court declined so to rule; and instructed the jury \\u201c that whether the case was within the statute of frauds, or not, depe nded upon whether the contract between the parties was a new and original one, or a mere promise to pay the existing debt of another, and collateral; that giving up some advantage oi submitting to some loss would be sufficient to create an original contract; that it was for them to determine, upon the evidence, what the agreement was between the parties; and that if the evidence satisfied them that the plaintiff, at the time of the alleged contract, agreed to give up his claim against Hamblin, and the defendant promised on his part to pay the amount to the plaintiff, and if it was also at the same time agreed that the due bill should be cancelled and given up to Hamblin, and if it was so cancelled and given up in pursuance of such agreement, it would constitute a good consideration, not within the statute of frauds.\\u201d\\nThe jury found a verdict for the plaintiff, and the defendant alleged exceptions.\\nS. C. Maine, for the defendant.\\nJ. Q. A. Griffin, for the plaintiff.\", \"word_count\": \"1521\", \"char_count\": \"8667\", \"text\": \"Merrick, J.\\nThe principal, and perhaps the only question, which can be considered as fairly arising upon the bill of exceptions in this case, relates to the instructions given to the jury concerning the statute of frauds, so far as its provisions are applicable to the contract set forth in the declaration, and the evidence by which it was attempted to be proved at the trial. No action can be brought to charge any person upon a mere oral promise, of which no written note or memorandum has been made, to answer for the debt, default or misdoings of another. Rev. Sts. c. 74, \\u00a7 1. If, therefore, the agreement of the defendant was simply to answer for or to pay the debt which was due from Hamblin to the plaintiff, it,was a contract which the provisions of the statute will not permit to be enforced. But if, for a good and sufficient consideration, the defendant assumed and took upon himself the debt which Hamblin had before owed to the plaintiff, and promised to pay it, and Hamblin was thereby, and as a part of the agreement between the parties, released and discharged from all liability upon his note, then the promise of the defendant was a promise to pay his own debt, and not the debt of another person, and an action at law may well be maintained upon it.\\nThe instructions given to the jury appear to us to recognize and to have been framed substantially in accordance with this distinction. They are not very plainly or accurately stated in the bill of exceptions; but the import and meaning of them, we think, cannot be mistaken. The jury were, in substance and effect, advised that the sufficiency of the defence depended upon the decision first to be made upon the question whether the promise of the defendant was a mere collateral undertaking to pay the debt of another person, or constituted one part of a new, original and independent contract between the parties; and that if, in pursuance of their mutual agreement, the indebtedness of Hamblin upon his promissory note to the plaintiff was cancelled, released and extinguished, and the defendant, for a good consideration, such as some loss or disadvantage submitted to by the plaintiff therefrom, promised the plaintiff to pay him the amount of said note, this would be a contract not within or affected by the statute of frauds. The precise language of the presiding judge was, that it would be \\\" a good consideration, not within the statute; \\\" but considering the connection in which that word is used, and the explanation of which it is a part, it is obvious that he was defining what he had just before spoken of as a new and original contract. Taking this view of the instructions, we think the law was properly stated and explained to the jury, and that there is no ground for the exceptions taken by the defendant.\\nIt has been urged further, as a cause for setting aside the verdict, that there is a substantial variance between the allegation in the declaration, and the evidence given upon the trial in support of it; that the contract set forth in the declaration is absolute in its terms, while that which was proved was conditional. This is substantially a motion to this court to interpose and set aside the verdict because the verdict is against the evidence, a course of proceeding which is not admissible upon a bill of exceptions. Exceptions are to be allowed whenever a party is aggrieved by any opinion, direction or judgment of the court in matter of law ; but not when he conceives that the jury have misapplied or have erroneously given an unjust or inadmissible effect to the evidence. Rev. Sts. c. 82, \\u00a7 12.\\nThere are other answers, however, to this objection, which, if it were necessary to resort to them, would seem to be quite decisive against it. The whole evidence which was submitted to the jury is not now before this court; for the bill of exceptions, after reciting a portion, and, it may be, the least material part, of that which was introduced upon the trial, adds, that (t there was other evidence in the case, which the defendant and plaintiff respectively relied on to maintain the issues raised.\\\" It is impossible, therefore, for the court here to see that the jury erroneously found that the allegations of the declaration were proved by the evidence laid before them; it does not possess all the means which are indispensable to the formation of an opinion upon the subject. But further, in looking at the part of the evidence which is reported, it appears to us to have a very strong tendency to establish the proposition which the plaintiff attempted to maintain; and we are not prepared to say that it was not fully sufficient to support it. Exceptions overruled.\"}"

mass/2080645.json

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+"{\"id\": \"2080645\", \"name\": \"Lucy A. Ray vs. Joseph V. Smith\", \"name_abbreviation\": \"Ray v. Smith\", \"decision_date\": \"1857-10\", \"docket_number\": \"\", \"first_page\": \"141\", \"last_page\": \"144\", \"citations\": \"9 Gray 141\", \"volume\": \"75\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:25:02.061657+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lucy A. Ray vs. Joseph V. Smith.\", \"head_matter\": \"Lucy A. Ray vs. Joseph V. Smith.\\nIn an action for breach of promise of marriage, evidence of the acts and conversation of the parties towards each other during a previous intimacy, which was broken off before the mutual promises relied on, is admissible.\\nIn an action for breach of promise of marriage, the plaintiff introduced evidence that while the intimacy between the parties was broken off, and before the mutual promises relied on, the defendant expressed satisfaction that she had refused to walk with another man, and said that man could not get her away as long as he had a claim on her.\\u201d Held, that the evidence was admissible.\\nIn an action for breach of promise of marriage, the plaintiff testified that, after the intimacy between the parties was broken off, she boarded at the same house as the defendant and another woman whom he married; and never knew or heard of any intimacy between them before the marriage. Held, that evidence that during that time the defendant was publicly attentive to his present wife, with the plaintiff\\u2019s knowledge, was immaterial, and therefore inadmissible to contradict the plaintiff.\\nThe admission, after the close of the defendant\\u2019s evidence, of evidence which does not tend to rebut new matter introduced in defence, is within the discretion of the presiding judge, and no ground of exception, even if he does not assign any reason for its admission.\\nBefore the St. of 1857, c. 305, took effect, the wife of a party \\\"to a suit was not admissible as a witness.\\nAction of contract for breach of promise of marriage. The answer denied all the allegations in the declaration. Trial in this court at October term 1856 before Merrick, J., who allowed this bill of exceptions :\\n\\u201c The plaintiff\\u2019s counsel, in opening the case, stated that in the spring of 1852 intimacies commenced between the plaintiff and the defendant, which continued to February 1853, when, in consequence of improper proposals made by the defendant to the plaintiff, the plaintiff rejected the further addresses of the defendant, and all intimacy was broken off between them ; but that renewed attentions occurred, and renewed mutual promises, upon which the plaintiff relied to maintain this action, were afterwards made by them between the 1st and 15th of Oc tober 1853.\\n. \\u201c The plaintiff was introduced as a witness, and allowed by the court to detail what occurred during the intimacy existing between the parties previously to the alleged rejection of the defendant by the plaintiff; and the fact that it was broken off and what she said to him at the time; and that she returned his niniature, which he had previously given her.\\n\\u201c The plaintiff called Timothy Bicker, who was allowed by the court, in answer to questions proposed to him by the\\\" plaintiff\\u2019s counsel, to state that one Sunday evening in the spring of 1853, after the intimacy was broken off, he called upon the plaintiff when the defendant was not present, and invited her to take a walk with him, which invitation she declined; that some time in the week following, in a conversation between the witness and the defendant, the defendant, referring to this invitation, asked the witness what he tried to get Lucy to walk with him for, and told the witness that Lucy (the plaintiff) had bluffed him (the witness) off, and that he could not get the girl away as long as he (the defendant) had a claim on her.\\n16 The plaintiff testified that, in the latter part of the winter or spring of 1854, (after the defendant first promised to marry her,) and also after all attentions to her on his part had ceased, she went to board with the mother of Susan Hemenway (whom the defendant afterwards married) where the defendant also boarded, and that she there remained until after the defendant\\u2019s marriage, which took place on the 17th of October 1855. The plaintiff also testified that she never knew or heard of any attentions or intimacies between the defendant and his wife, prior to their marriage.\\n\\u201c To contradict this, the defendant offered to show, that after the alleged intimacies were broken off between the plaintiff and the defendant, and subsequently to the time of the alleged breach of the alleged promise of marriage, the defendant was publicly attentive to his present wife with the plaintiff\\u2019s knowledge ; which testimony was, upon the plaintiff\\u2019s objection, rejected as immaterial.\\n' \\u201c On the cross-examination of the defendant, questions were asked him as to intimacies, walks and visits supposed to have taken place between the parties, some of which were, and some of which were not, introduced by the plaintiff in putting in her case ; and all of which intimacies, as well as the existence of any engagement at any time, the defendant denied. After the\\ndefendant had closed his defence, the plaintiff was introduced, and allowed by the court, for the purpose of contradicting the defendant upon the matters drawn out in cross-examination, to testify to certain transactions between the parties, which tended to prove the issue denied in the answer to the declaration.\\n\\u201c The defendant offered his wife as a witness, to facts material to the issue, and which occurred before her marriage. Bu the court refused to admit her to testify.\\n\\u201c To all which rulings, (the verdict being for the plaintiff,) the defendant excepts.\\u201d\\nT. H. Sweetser, for the defendant.\\n1. What occurred and was said between the parties at a time anterior to the promises and attentions relied upon by the plaintiff in this action was immaterial, and tended to prejudice the jury. 1 Greenl. Ev \\u00a7\\u00a7 52, 448. Odiorne v. Winkley, 2 Gallis. 53.\\n2. The testimony of Ricker should have been rejected, fa\\u00bb the same reasons.\\n3. Evidence of the defendant\\u2019s attentions to another woman, subsequently to the alleged promises, in the presence and with the knowledge of the plaintiff, should have been admitted. Her remaining in the same boarding-house under such circumstances tended to show that the alleged promises were never made to her. And the evidence tended to contradict the plaintiff; and also to show that her feelings were never much enlisted, and thus to affect the measure of damages, if any. Sedgwick on Damages, (2d ed.) 368, 369.\\n4. After the close of the defendant\\u2019s case, the plaintiff could only introduce evidence to rebut new matter shown in defence, except by the discretion of the court, and for reasons assigned. Here no such appeal was made, but the evidence was admitted as matter of right.\\n5. All objections against the admission of the testimony of the defendant\\u2019s wife have been removed by the recent changes in the statutes.\\nB. F. Butler, for the plaintiff.\", \"word_count\": \"1287\", \"char_count\": \"7624\", \"text\": \"By the Court.\\n1. The testimony of the existence and breaking off of a previous intimacy was rightly admitted. The whole relation Of the parties was admissible, including the whole course of the courtship.\\n2. Ricker's testimony was admissible to prove the feelings of the defendant, and that he was in the receipt of information as to the plaintiff's acts, and had not abandoned all intention o\\u00ed prosecuting his addresses.\\n3. The evidence introduced by the defendant, that the plaintiff had the means of knowing his attentions to another woman, related to a time when the intimacy between the plaintiff and the defendant had been entirely broken off, and was immaterial to the issue, and therefore rightly rejected.\\n4. The order of proof was within the discretion of the presiding judge, and not a subject of exception.\\n5. The wife of the defendant was not a competent witness under the statutes in force at the time of the trial. Barber v. Goddard, ante, 71. Exceptions overruled.\"}"

mass/2080721.json

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+"{\"id\": \"2080721\", \"name\": \"John C. Haskins vs. Joseph P. Haskins\", \"name_abbreviation\": \"Haskins v. Haskins\", \"decision_date\": \"1857-10\", \"docket_number\": \"\", \"first_page\": \"390\", \"last_page\": \"393\", \"citations\": \"9 Gray 390\", \"volume\": \"75\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:25:02.061657+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John C. Haskins vs. Joseph P. Haskins.\", \"head_matter\": \"John C. Haskins vs. Joseph P. Haskins.\\nThe use of a mill privilege purchased from the owner of a lower privilege on the sam, stream is not regulated by the use made of it before such purchase, but by what is reasonable and proper, conformably to the wants and usages of the community.\\nIn a civil case the jury were instructed that the burden of proof was upon the plaintiff, and was sustained \\u201c if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.\\u201d Held\\u00a1 that the explanation was indefinite, and tended to mislead the jury.\\nAction of tort for filling up and obstructing the plaintiff\\u2019s mill pond and stream, by sawdust and shavings from a box-board machine at the defendant\\u2019s mill, above the plaintiff\\u2019s on the same stream.\\nAt the trial in the court of common pleas before Sanger, J., it appeared that the defendant purchased his mill and privilege of the plaintiff in 1846, previously to which the plaintiff had used said mill as a shingle mill, and suffered the dust therefrom to fall into the pond and stream now the plaintiff\\u2019s. There was conflicting evidence upon the comparative amount of sawdust and consequent obstruction of the plaintiff\\u2019s pond and stream before and since that purchase.\\nThe defendant requested the court to instruct the jury \\u201c that, under the law, by virtue of the conveyance from the plaintiff to the defendant, the defendant' acquired the right to use the mill in substantially the same manner as it was used while owned by the plaintiff; that if new machinery was invented subsequently, by means of which the defendant could do more work, he would have a right to adopt it and run it, although the effect would be to throw more dust into the plaintiff\\u2019s pond ; and the defendant was not restricted to the precise use which had been before made of the privilege, nor to the precise quantity and character of sawdust before suffered to fall into the stream; \\u201d and \\u201c that the plaintiff could not recover for a merely theoretical damage, but the damage must be actual and appreciable, and that if the jury should find that there was, at the date of the writ and previously, more sawdust in the plaintiff\\u2019s pond than before the box-board machine was introduced, yet if they found that the plaintiff could run his mill substantially as before, the plaintiff could not recover.\\u201d\\nThe court instructed the jury \\u201cthat by virtue of the conveyance from the plaintiff to the defendant, the defendant did acquire the right to use the mill substantially as it was used while owned by the plaintiff, and was not restricted to the precise use which had been before made of the privilege, nor to the precise quantity or character of the sawdust before permitted to fall into the stream; and could use new and improved machinery, if thereby the quantity and character of the sawdust, permitted by the defendant to fall into the stream, was substantially the same as when the mill was owned by the plaintiff; but if the sawdust, permitted by the defendant to fall into the stream from his box-board machine, was substantially different in character or quantity, and the plaintiff\\u2019s stream, pond and mill privilege were thereby obstructed and injured, the plaintiff could recover such damage therefor as he had actually suffered thereby.\\u201d\\nThe court further instructed the jury \\u201c that the burden of proof was on the plaintiff to make out the injury set forth in his declaration ; that this burden would be sustained, if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.\\u201d The jury found for the plaintiff, and the defendant alleged exceptions.\\nC. I. Reed, for the defendant.\\nT D. Robinson, for the plaintiff.\", \"word_count\": \"1216\", \"char_count\": \"6960\", \"text\": \"Bigelow, J.\\nThe rights of the parties to the use of their mills respectively did not depend on the fact that the defendant held his title to his mill privilege under a conveyance from the plaintiff. Irrespectively of the mode in which the parties acquired title to the mill privileges, each had the right to use the water belonging to his mill in a reasonable, ordinary and proper manner for the regular and usual prosecution of his business. Such use of the water by one millowner, although it might impair in some degree the efficiency of the mill privilege of another owner-on the same stream, would give no right of action to the latter. It would be damwum absque injuria. Cary v. Daniels, 8 Met. 476. Barrett v. Parsons, 10 Cush. 367. The real issue before the jury therefore, in the present case, was not as to the manner in which the plaintiff had used the upper mill and the pond below the same, while it was owned by him and before it was conveyed to the defendant; but whether the latter, since he became the owner of the upper mill, had used his privilege in a reasonable and proper manner, conformably to the usages and wants of the community, and in a mode not inconsistent with a like reasonable and proper use of the plaintiff's mill situated on the same stream below. By the case as stated in the exceptions, it would seem that the trial of this case proceeded on a misapprehension of the true question at issue, and that the jury may have been thereby misled into an erroneous view of the rights of the parties.\\nWe are apprehensive that they were also misled by the instructions of the court as to the amount of proof necessary to warrant them in finding a verdict for the plaintiff. If the judge bad gone no further than to tell the jury that the burden of proof was on the plaintiff, and that this burden would be sustained if on the whole evidence there was a preponderance of proof in his favor, his instruction would have been intelligible, precise, and strictly correct. The \\\" weight \\\" or \\\" preponderance of proof\\\" is a phrase constantly used, the meaning of which is well understood and easily defined. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. But the phrase \\\" balance of probabilities,\\\" used by the judge in his instructions as equivalent to the words \\\" preponderance of proof,\\\" has no well settled or clearly defined meaning. It is at best a vague and indefinite phrase, and would rather lead the jury to infer that they might form their verdict on a guess at the truth, gathered from the evidence, than on a real solid conviction of it, founded on a careful scrutiny and examination of the proof. We cannot sanction an instruction which seems to us to introduce into the practical administration of justice a new phrase of doubtful signification, which tends to cloud the meaning of that which was before clear and well understood, and to confuse and mislead the jury in the discharge of their duty.\\nExceptions sustained.\"}"

mass/2084783.json

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+"{\"id\": \"2084783\", \"name\": \"George M. Atwater vs. Silas B. Bodfish\", \"name_abbreviation\": \"Atwater v. Bodfish\", \"decision_date\": \"1858-09\", \"docket_number\": \"\", \"first_page\": \"150\", \"last_page\": \"152\", \"citations\": \"11 Gray 150\", \"volume\": \"77\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:22:39.201563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George M. Atwater vs. Silas B. Bodfish.\", \"head_matter\": \"George M. Atwater vs. Silas B. Bodfish.\\nUnity of possession and title extinguishes a right of way for the owner of one estate ovei another, although the right has existed for more than twenty years.\\nA way over another\\u2019s estate, used for the purpose of taking away wood only, cannot be extended to other purposes, when the dominant estate is occupied by dwellings and cultivated.\\nPloughing up an old way and substituting a new one from one estate over another by the consent of the owners of both estates, one of whom asserts and the other admits a right of way over the second estate somewhere, give the owner of the first estate no greater right in the new way that he had in the old one.\\nAction of tort for obstructing a right of way claimed by the plaintiff across the defendant\\u2019s land in Chicopee. The case was submitted to an arbitrator, who reported the following case for the decision of the court:\\nOf a row of four lots of land running from west to east, the plaintiff purchased lot 1 in 1853, and lots 2 and 3 in 1855; and the defendant owns lot 4, bounded on the highway, and across. which the right of way is claimed. Until 1838 these lots were all wood lots, and, from 1809 to that time, a way from lots 1 and 2 over lots 3 and 4 existed, but was used for no other purpose than to draw off wood and timber. Part of lot 3 was brought under cultivation in 1838, lot 2 has remained uncultivated to the present time, and the road to it was used almost exclusively for drawing away wood and timber until the plaintiff built his house on lot 1 in 1855, since which he has used it for all purposes. There is another access from the plaintiff\\u2019s lots southwardly to the highway. Lot 4 was uncultivated and uninclosed until 1849.\\nPliny Chapin owned lot 3 from 1839 till 1855. In 1836 Asher Hitchcock conveyed lot 4 to Veranus Chapin, by deed containing this clause: \\u201c With the privilege of a road across the same to be used as heretofore.\\u201d Veranus Chapin conveyed this lot in 1846 to Pliny Chapin, who conveyed it to Francis Bliss in 1849, without reservation.\\nWhile Bliss owned lot 4, he ploughed up the old way across it and substituted another, with the concurrence of the owners of lots 2 and 3, the right to cross somewhere being asserted by them, and admitted by Bliss, who desired to change the road because it crossed his land in an inconvenient manner. After the change the new road was used in the same manner as the old one, until interrupted by the defendant. In the various conveyances of the lots, no mention is made of the way except as above stated.\\nF. Chamberlin, for the plaintiff.\\n1. The case finds a use and enjoyment for more than twenty years of a way across the defendant\\u2019s land, by the owner of lots 2 and 3, sufficient to establish a prescriptive right or right by adverse use. Kent v. Waite, 10 Pick. 142. Sargent v. Ballard, 9 Pick. 254. Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241. Williams v. Nelson, 23 Pick. 141. Bright v. Walker, 1 Cr., M. & R. 219. Gale & Whately on Easements, c. 5, \\u00a7 3. Campbell v. Wilson, 3 East, 300. This enjoyment has been uninterrupted, except as to lot 3, as to which there may have been such a unity of possession with lot 4 as to interrupt the continuous adverse use. But as to that lot there was more than twenty years\\u2019 adverse use before 1846.\\n2. The proof that the plaintiff and those under whom he claims used the way whenever they required it is strong evidence to show that they had a general right to use it for all purposes. Cowling v. Higginson, 4 M. & W. 252.\\n3. The defendant is bound by the acts of Bliss, who ploughed up the old way across lot 4 and substituted another. These acts, done with the concurrence of the owners of lots 2 and 3, (whose assertion of a right to cross somewhere was admitted by Bliss,) show a dedication by Bliss, which the defendant is estopped to deny. Larned v. Larned, 11 Met. 423. Commonwealth v. Fisk, 8 Met. 243. Morse v. Copeland, 2 Gray, 305.\\nC. A. Winchester, for the defendant,\\ncited Rev. Sts. c. 60, \\u00a7 27 ; Sargent v. Ballard, 9 Pick. 254; Arnold v. Stevens, 24 Pick. 110 ; Gayetty v. Bethune, 14 Mass. 53 ; Thomas v. Marshfield, 13 Pick. 240; Nichols v. Luce, 24 Pick. 105; Kilburn v. Adams, 7 Met. 33 ; Commonwealth v. Fisk, 8 Met. 245 ; Slater v. Jepherson, 6 Cush. 129; Cook v. Babcock, 11 Cush. 210; Luther v. Winni simmet Co. 9 Cush. 171; Thayer v. Paine, 2 Cush. 332; Henshaw v. Hunting, 1 Gray, 218 ; Stearns v. Mullen, 4 Gray, 151; Rogers v. Sawin, 10 Gray, 376; Lawton v. Rivers, 2 McCord, 452; Collins v. Prentiss, 15 Conn. 39; Pierce v. Selleck, 18 Conn. 329; Shep. Touchst. 78; 4 Kent Com. (6th ed.) 468.\", \"word_count\": \"1184\", \"char_count\": \"6285\", \"text\": \"Bigelow, J.\\n1. The way across lots Nos. 3 and 4 was extinguished by unity of possession and title in Pliny Chapin; he having acquired title to and occupied both lots from 1846 to 1849, when he conveyed No. 4 to Bliss, and after which, in 1855, he conveyed No. 3 to the plaintiff. Neither of these deeds contained any reservation of a right of way.\\n2. The right of way to lot No. 2 from 1809 to 1835 was only used for the purpose of taking wood from that lot, while the whole tract was wild and uncultivated. Such a right cannot be extended to the larger use claimed by the plaintiff as a way for all purposes, now that the land is occupied for dwellings and purposes of cultivation. It must be limited to the use for which it is shown by the evidence to have been originally designed. Since 1835, the use of the way has been interrupted, so that no right of way has been gained by adverse user since that time.\\n3. The act of Bliss in laying out a new track across another part of lot No. 4 cannot be regarded as an absolute dedication of a way over his land. If a private way can be established between parties by dedication, it must appear to have been done with a full knowledge of the rights of the parties, thus indicating a clear intent by the party owning land to devote his land to such purpose so as to give to others an irrevocable right to use it. But in the present case, the new way laid out by Bliss was only a substitute for the old one alleged to exist over another part of his land. The right to the original way being unfounded, the way substituted for it cannot be held to stand on a better title. Judgment for the defendant.\"}"

mass/2084853.json

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+"{\"id\": \"2084853\", \"name\": \"William A. Howe vs. Ebenezer Wilder\", \"name_abbreviation\": \"Howe v. Wilder\", \"decision_date\": \"1858-10\", \"docket_number\": \"\", \"first_page\": \"267\", \"last_page\": \"271\", \"citations\": \"11 Gray 267\", \"volume\": \"77\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:22:39.201563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William A. Howe vs. Ebenezer Wilder.\", \"head_matter\": \"William A. Howe vs. Ebenezer Wilder.\\nA. mortgagee, who has assigned the mortgage and indorsed the mortgage note, may, upon the indorsement of the note back to him, and the cancellation of the assignment before it has been recorded, maintain a writ of entry to foreclose the mortgage.\", \"word_count\": \"1532\", \"char_count\": \"8462\", \"text\": \"Merrick, J.\\nThis is a writ of entry, brought to recover possession of the demanded premises for the purpose of foreclosing the right of the defendant to redeem the same from a mortgage made by him to the plaintiff. By the production of the mortgage and of the promissory note which it was given to secure, it is conceded that he has shown all that is necessary to enable him to maintain this action, and that he ought to recover judgment therein, unless the defendant in his defence can avail himself of the title acquired by Rufus Hastings by the assignment made by the mortgagee to him. And this, we think, under the circumstances disclosed in the deposition used at the trial, the statements in which are by special agreement of the parties to be taken and considered by the court as true, he cannot be allowed to do. After the indorsement of the note and the assignment of the mortgage to Hastings, and while he was entitled to all the rights conferred upon him by those conveyances, for a full and valuable consideration he sold and transferred the note to the plaintiff, and at the same time delivered to him the mortgage deed, having first effaced and can-celled the deed of assignment, which had never been recorded. The parties supposed that this cancellation would be equivalent to a reassignment; and it was their intent and purpose in this way to restore to the plaintiff all the rights which he originally acquired and held as mortgagee. In the mean time no other person had in any way become interested in the estate or in the title to it, which was held by any parties to these transactions. And by the sale and transfer of the note, if not by the cancellation of the assignment, Hastings then put it out of his power by any future deed to invest a third person with a title which he could effectually assert against the right of the mortgagor to remain in possession of the estate.\\nIf the plaintiff, after the cancellation of the unrecorded deed of assignment to Hastings, had made a second assignment to another party in good faith and for a valuable consideration, it cannot be denied that his right .against Hastings would have been perfect and complete. Trull v. Skinner, 17 Pick. 213. Lawrence v. Stratton, 6 Cush. 163. If Hastings is thus effectually precluded from interfering with the title of a second assignee, has he any interest which he can assert, or rights which he can enforce against either the mortgagor or mortgagee 1 If the principle, suggested by the chief justice in delivering the opinion of the court in the case of Trull v. Skinner, 17 Pick. 213, and for the rejection of which it would be difficult to assign satisfactory reasons, that an estoppel would arise from the voluntary surrender, by the cancellation of his deed, of the only legal evidence by which his claim to the estate could be established, should be adopted, it would be decisive of the question. In that aspect of the case any claim he might prefer would be considered and treated exactly as if no assignment to him had ever been made, because by his own act he had voluntarily precluded himself from resorting to or availing himself of it\\nBut there are other grounds upon which it is perfectly clear that Hastings has no interest or right which he can effectually set up or assert against either the mortgagor or mortgagee. He has no possible interest in the question between those parties ; for by the sale and transfer of the note to the plaintiff he has lost all right to enforce the payment of it to himself, and by accepting the consideration paid for it has received all that he was ever entitled to have under the assignment. Whatever may be the state or condition of the legal title to the estate, it is equally clear that he has no equitable claim upon or right to disturb the mortgagor or interrupt him in the possession and enjoyment of it. And if he should attempt anything of that kind, as by prosecuting a writ of entry for that purpose, he must necessarily fail to maintain his action, even if it should be taken to be the settled and established law that the cancellation of the deed of assignment neither defeated the title created thereby in the assignee, nor revested it in the assignor. For in pursuing such a suit he has only the rights of a mortgagee, and is limited by the restrictions imposed upon him. He can have only the conditional judgment rendered in his behalf; that is, judgment that he shall have possession of the demanded premises if the mortgagor shall fail within sixty days therefrom to pay him the sum which the court shall upon inquiry find and determine to be his due. Rev. Sts. c. 107, \\u00a7 3, 5. If nothing is found due to the plaintiff, it follows by necessary implication, from the provisions of the statute, that he can recover no judgment at all; none to have possession at common law, because that is expressly prohibited ; and none under the statute, because where there is no condition to be performed, there can be no failure of performance, and no consequences can follow a contingency which in the nature of things can never occur.\\nIt is thus seen that Hastings has no title by virtue of which he can interfere with the defendant or interrupt him in the possession of the mortgaged premises; and therefore none which the defendant can set up in defence to the plaintiff's action. For if, by the sale and retransfer of the note and the cancellation of the deed of assignment, the latter is rendered useless and ineffectual to the assignee, the mortgage is not discharged or in any degree affected by these proceedings. If it remains in force, as no one can deny that it does, there must be some party by whom it can be enforced; and as no action can be maintained upon it by Hastings, the assignee, the right of doing so must be vested in the mortgagee, who alone has any interest in it. He may therefore well be allowed to insist upon having judgment for possession, unless the condition upon which it is made shall be performed. Upon the performance of that condition, by the payment to the plaintiff of the money remaining due upon the promissory note, to which he is confessedly entitled, the mortgage will be discharged and the tenant will be in as of his former estate. In this way the rights of all the parties are severally respected and secured. No one is subjected to a burden, or allowed an advantage, that is not strictly in accordance with the provisions of the contracts into which they have respectively entered.\\nC. C. Stevens, for the plaintiff,\\ncited Rev. Sts. c. 59, \\u00a7 28, 29, 33, and commissioners' report; St. 1783, c. 37, \\u00a7 1, 4, 6 ; Farnsworth v. Childs, 4 Mass. 638; Sherburne v. Fuller, 5 Mass. 138 ; Conway v. Deerfield, 11 Mass. 327 ; Dana v. Newhall, 13 Mass. 498; Marshall v. Fisk, 6 Mass. 24; Commonwealth v. Dudley, 10 Mass. 403; Scott v. McFarland, 13 Mass. 311; Rice v. Rice, 4 Pick. 349; Cutler v. Haven, 8 Pick. 490 ; Holbrook v Tirrell, 9 Pick. 105; Trull v. Skinner, 17 Pick. 213 ; Lawrence v. Stratton, 6 Cush. 163; 1 Greenl. Ev. \\u00a7 265, note; 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 1, \\u00a7 15, note; c. 27, \\u00a7 19, note; Browne on St. of Frauds, \\u00a7 60; Barrett v. Thorndike, 1 Greenl. 73 ; Nason v. Grant, 21 Maine, 160 ; Tomson v. Ward, 1 N. H. 9 ; Farrar v. Farrar, 4 N. H. 191; Mussey v. Holt, 4 Foster, 248; 2 Story on Eq. \\u00a7 1016; 4 Kent Com. (6th ed.) 194, & note 1 Hilliard on Mortgages, 103, 215-240, & cases cited; Rev. Sts. c. 107, \\u00a7 29 ; Peck v. Hapgood, 10 Met. 172 ; Stewart v. Clark, 11 Met. 388; Amidown v. Peck, 11 Met. 469; Gibson v. Crehore, 3 Pick. 475; Crocker v. Thompson, 3 Met. 235 ; Newcomb v Presbrey, 8 Met. 406.\\nConditional judgment to be rendered for the plaintiff.\\nP. C. Bacon, for the defendant,\\ncited Reading of Judge Trowbridge, 8 Mass. 551; Goodwin v. Richardson, 11 Mass. 473; Fay v. Cheney, 14 Pick. 400 ; Blanchard v. Brooks, 12 Pick. 57; Page v. Robinson, 10 Cush. 102 ; Clark v. Beach, 6 Conn. 331; Rev. Sts. c. 74, \\u00a7 1, cl. 4; Warden v. Adams, 15 Mass. 236; 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 1, \\u00a7 15, note; Trull v. Skinner, 17 Pick. 213 ; Farrar v. Farrar, 4 N. H. 191; Barrett v. Thorndike, 1 Greenl. 73; Holbrook v. Tirrell, 9 Pick. 105.\"}"

mass/2087740.json

@@ -0,0 +1 @@
+"{\"id\": \"2087740\", \"name\": \"Sarah Tilden & others vs. John Tilden, Executor\", \"name_abbreviation\": \"Tilden v. Tilden\", \"decision_date\": \"1859-06\", \"docket_number\": \"\", \"first_page\": \"110\", \"last_page\": \"114\", \"citations\": \"13 Gray 110\", \"volume\": \"79\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:42:08.316029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sarah Tilden & others vs. John Tilden, Executor.\", \"head_matter\": \"Sarah Tilden & others vs. John Tilden, Executor.\\nUpon the offer for probate of a will, not in the handwriting of the testator, but signed by him, with the usual attestation clause added, signed by three witnesses, one witness testified that he and the second witness signed it at the same time, in the presence and at the request of the testator, without reading it or being told that it was a will, and that the testator directed him where to put his name, but did not sign it in his presence, nor say the signature was his. The second witness testified that the testator, after requesting them to sign it, signed it himself, and declared it to be his will, and then they signed it, and his impression was that the third witness was then present. The third witness testified that the other witnesses did not sign in his presence; that the testator brought the paper to him, and requested him to witness it, which he did in the testator\\u2019s presence, but without reading it; that he thought the names of the other witnesses were then upon \\u25a0 it, but could not say whether the testator\\u2019s name was; and that the testator did not sign it in his presence, or say anything about his signature. Held, that this was sufficient evidence of the execution and attestation of the will.\\nAppeal by the heirs at law of Thomas Tilden, of itoxbury, from a decree of the probate court of the county' of Norfolk, establishing an instrument as his last will. The questions, whether the will was duly attested by three subscribing witnesses, and whether the proof was sufficient in law to sustain the will, were submitted to the decision of the court upon an agreed statement of the facts, and of the testimony of the witnesses, the material parts of which were as follows:\\nThe will is not in the handwriting of Thomas Tilden ; but it is subscribed by him, followed by this attestation clause :\\n\\u201c Signed, sealed, published and delivered by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the. same.\\n\\u201c John Hunt,\\n\\u201c Edwin Lemist,\\n\\u201c John W. Lord.\\u201d\\nJohn Hunt testified: \\u201c Mr. Tilden came to my factory, and my impression is that he had a paper in his hand. He said to me, 61 wish you to go with me to witness this.\\u2019 He did not call it his will. We went up to Mr. Lemist\\u2019s store. After we had entered, he opened a paper, laid it down on Lemist\\u2019s desk, and said, \\u2018 Put your name there \\u2019 \\u2014 directing me. I did so, and Lemist put his on, and we came off. I did not read a scrap of the paper. I did not see his signature at all. He did not sign it in my presence, nor call my attention to it, as being his signature. My recollection is positive, and I have no doubt the facts are just as I have stated. No other persons were present Some years subsequent I witnessed a will, and then I saw another form of witnessing, which I thought if important in one case, was in the other. I then told the old gentleman of the circumstance, saying to him that I did not think his will was legally witnessed. My reason for doing this was because I did not see his signature. He made no answer. I had known Mr. Tilden ever since I was a schoolboy, for fifty years.\\u201d\\nEdwin Lemist testified: \\u201c The late Thomas Tilden came to my store in Roxbury in company with Mr. Hunt. They came directly to the back part of my store, where my desk stood. Mr. Tilden took from his pocket a folded paper and laid it upon the desk, and when he had adjusted his spectacles, he said, \\u2018 Gentlemen, I wish you to witness my signature to my will.\\u2019 I took from the stand a steel pen and handed it to him, with which he signed his name to said paper, in the presence of Mr. Hunt and myself. Mr. Hunt signed his name as a witness, and I did the same, in the presence of Mr. Tilden. The paper was not read in our hearing, nor did we read it that I know of. I had upon my desk an inkstand, and in it usually kept three steel pens. Mr. Tilden used the same ink, I have no doubt, but think he may not have used the same pen that Mr. Hunt and myself did. Mr. Tilden thanked us for witnessing the will, bade us good morning, and left. The impression is very strong on my mind that Mr. Lord was present when the will was signed.\\u201d\\nJohn W. Lord testified: \\u201c The will was signed by me, in my counting room, in Roxbury. Mr. Tilden came in with the paper, and said, \\u2018 I wish you to witness this.\\u2019 No one came with him, and no one else was present. I think the names of the other witnesses were on at the time. I cannot say whether Mr. Tilden\\u2019s name was on or not when I signed my name. He did not sign his name in my presence. He did not say any thing about his signature, or make any allusion to it. When I signed, he was in the doorway. After the paper was signed, he took it away. I think Mr. Tilden\\u2019s position was such that he could see me sign my name. I have no recollection of reading any part of the paper. I was not present when Mr. Hunt and Mr. Lemist signed their names.\\u201d\\nPeter Butler, a competent expert, testified that, in his opinion, the signature of Mr. Tilden to the will was made with other ink than that used by Messrs. Hunt and Lemist.\\nThis case was argued at Boston in January 1859.\\nW. S. Leland, for the appellants.\\nThere were no acts or words equivalent to a signing by the testator in the presence of three witnesses, as required by the Rev. Sts. c. 62, \\u00a7 6. There must be a perfect execution in the presence of each witness. Only one of the witnesses testifies that the testator signed in his presence; the two others testify positively that he did not; and as the will was not in the testator\\u2019s handwriting, and all the witnesses testify that they did not read the attestation clause, there is no room for presumption in favor of the will. To establish the will, under these circumstances, would be to take a step beyond any adjudged case, and entirely disregard the statute of frauds. Rutherford v. Rutherford, 1 Denio, 33. Lewis v. Lewis, 1 Kernan, 220. Rogers v. Diamond, 13 Ark. 474. Boldry v. Parris, 2 Cush. 438. Hall v. Hall, 17 Pick. 379. Dewey v. Dewey, 1 Met. 349. Hogan v. Grosvenor, 10 Met. 54. Osborn v. Cook, 11 Cush. 532. White v. British Museum, 6 Bing. 310. Wright v. Wright, 7 Bing. 457. Hudson v. Parker, 3 Notes of Cases, 236. Beach v. Clarke, 7 Notes of Cases, 120. Ilott v. Genge, 3 Curt. Eccl. 181. 1 Jarman on Wills, 72.\\nJ. J. Clarke, for the appellee.\", \"word_count\": \"1986\", \"char_count\": \"10708\", \"text\": \"Dewey, J.\\nThe testimony of Edwin Lemist, if believed, establishes the fact that this instrument was executed by the testator, in the presence of himself and John Hunt as witnesses, under accompanying circumstances that present a case as to the two witnesses that would not have been questioned even before the late cases of Hogan v. Grosvenor, 10 Met. 54, and Osborn v. Cook, 11 Cush. 532. It is true that Hunt does not recollect all the facts stated by Lemist, and now declares that the testator did not actually sign it in his presence, and did not call it his will. But Hunt says that the testator asked him to witness the instrument, produced the instrument, laid it on Lemist's table, and said, \\\" Put your name there,\\\" directing him as to the place. Upon looking at the will and the place where he was directed to sign, it will be seen to have had the full attestation clause, 16 signed, sealed, published and delivered, by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the same.\\\" Th< testimony of Lemist, being positive in its character, is rather tc be taken than the negative testimony of Hunt as to the testator's not signing it in his presence, nor declaring, it to be his will; as the omission of Hunt to state this fact might result from mere failure of memory.\\nThe only difficulty in the case arises upon the fact of a proper attestation by the third witness, John W. Lord. In reference to this witness, it is said that there was.no publication of the will by the testator, no actual signing in his presence, no direct acknowledgment that he had signed the paper, and no knowledge on the part of the witness whether the testator's signature was on the paper at that time. But we have the fact that the testator came to the counting room of Lord with the paper in his hand, and said to the witness, \\\" I want you to witness this.\\\" We have the further facts that he had previously signed the paper, and that the names of the other witnesses were already on the same, written under the attestation clause already quoted. Lord says he thinks the names of the witnesses were there. He must, of course, have seen them there, and the attestation clause was before him and to it he attached his signature. The testator came there from Lemist's store, where\\\" he had just said to the other witnesses, \\\" Witness my signature to my will.\\\" He was the sole agent in procuring the attestation of the witnesses. He was the keeper of the instrument. It had already been signed by him, and all the circumstances tend to show, beyond any doubt, that he was fully cognizant of the nature and purposes of the instrument. It is true that the will was not in his handwriting; and therein the case differs from Hogan v. Grosvenor and Osborn v. Cook, above cited. But in the absence of this fact we have the other circumstances already alluded to, of the undoubted knowledge of the testator of the character of this paper, and we have the ancient form of an attesting clause, declaring it to be his last will and testament. So far as the fact is material that the testator was fully cognizant that this paper was his last will and testament, the evidence is quite sufficient to find this fact from. It was not necessary that the witness Lord should know the character of the instrument. It was enough that the testator had actually signed it, knowing it to be his last will and testament, and designing to have it duly executed as such, had so declared it, as testified by Lemist, and had called upon Lord to attest his execution of an instrument, whose character he well knew, by the request, \\\" I wish you to witness this,\\\" and that thereupon the witness signed this attesting clause.\\n.This subject has been much considered, and the authorities cited, in the cases already referred to, and in Dewey v. Dewey, 1 Met. 349, and Nickerson v. Buck, 12 Cush. 339, and it is only necessary here to refer to those eases. In the opinion of the court, the evidence was sufficient to authorize finding this instrument to have been duly signed by the testator, and duly attested as his last will and testament.\\nDecree of the court of probate affirmed.\"}"

mass/2113042.json

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+"{\"id\": \"2113042\", \"name\": \"Frederick O. Prince & another vs. City of Boston\", \"name_abbreviation\": \"Prince v. City of Boston\", \"decision_date\": \"1872-11\", \"docket_number\": \"\", \"first_page\": \"226\", \"last_page\": \"232\", \"citations\": \"111 Mass. 226\", \"volume\": \"111\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:18:59.207510+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frederick O. Prince & another vs. City of Boston.\", \"head_matter\": \"Frederick O. Prince & another vs. City of Boston.\\nIt is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c. 174, on the abutters upon a street for the expense of widening the street, that no notice of intention to assess the betterment was given to the abutters before the widening, if notice was given to them of intention to take their lands for the widening.\\nIt is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c, 174, on the abutters upon a street for the expense of widening the street, that the order for the widening did not award any damages to the abutters whose land was taken, and did not adjudge that any estates were benefited by the widening.\\nUnder the St. of 1866, c. 174, the assessment of a betterment by the aldermen of Boston for the expense of widening a street might be laid after the widening.\\n\\u25a0 Petition by Frederick 0. Prince and William Gr. Prince, for a writ of certiorari, to be directed to the board of aldermen of the city of Boston, ordering them to return into this court the record of their doings touching the assessment upon an estate of the petitioners on Devonshire Street in Boston of a portion of the expense of widening said street, that the same might be quashed as erroneous.\\nThe petition alleged that the board of aldermen, by an order passed March 16,1868, reciting that in their opinion the safety and convenience of the inhabitants required that Devonshire Street should be widened, ordered notice to be given to the abutters that the board intended to widen the street \\u201c by taking a portion of their land, and laying out the same as a public street; \\u201d that the board \\u201c neither ordered nor gave any notice to any owners of estates abutting upon Devonshire Street that it was necessary to assess nor that said board had any intention of assessing any portion of the expense of said widening upon the estate of the petitioners, of upon any estates; \\u201d that on April 11, 1868, the board passed an order that the safety and convenience of the inhabitants of the city required that Devonshire Street should be widened, and for that purpose it was necessary to take and lay out as a public street or way certain parcels of land, described in said order, including a part of the petitioners\\u2019 estate, and therefore that the said parcels were taken and laid out as a public street or way; that in said order no damages were awarded to any of the abutters ; that by said order it was also adjudged that the expense of widening the street as aforesaid would amount to $400,000 ; and that in said order the board \\u201c made no mention of the estate of the petitioners, or of any estates, as being benefited by said widening or laying out, nor made any estimate of damages incurred by such widening; nor did said board continue the subject for a hearing at any future time, but, in fact, adjudicated that there were no damages.\\u201d\\nThe petition further alleged that immediately \\u201c after said adjudication, said board proceeded to widen the street, and long after the widening was completed, made an estimate of damages occasioned thereby, but made that estimate without notice to the petitioners, or to any other parties; that on August 16, 1869, for the first time, and without notice, the board adjudged that the petitioners and others, owners of estates abutting on Devonshire Street, were benefited by said widening, and ordered notice to be given to such owners, of the intention of the board to assess a portion of the expense of said widening upon their estates; \\u201d that on November 8,1869, the board passed an order, assessing the estate of the petitioners and others; and that the amount assessed upon the petitioners\\u2019 estate was $4547.\\nThe petitioners alleged that said proceedings and orders were \\u201c wholly erroneous and unlawful: 1st. Because before proceeding to adjudicate upon said widening no notice was given of any intention on the part of the board of aldermen to assess any part of the expense thereof upon any owners of estates abutting on the street widened. 2d. Because in the adjudication of widening it was adjudged that there were no damages sustained by persons whose land was taken, and that there were no estates abutting on the street that were benefited by the widening. 3d. Because in the adjudication of widening, no estimate was made of the expense of the widening. 4th. Because the board of aldermen proceeded, without authority and without notice, to determine that the estates of the petitioners and others had been benefited, and were liable to assessment. 5th. Because there was no authority in law to make said assessments, at the time and in the manner they were made.\\u201d\\nThe answer alleged that the assessment complained of was lawfully laid; that the orders mentioned were duly served upon the petitioners; and \\u201c that the respondents did not adjudge that there were no damages sustained by persons whose land was taken, or that no estates abutting on the street were benefited by the widening.\\u201d\\nHearing on petition and answer before Ames, J., who reserved the case for the consideration of the full court.\\nH. W. Paine $ 0. Stevens, for the petitioners.\\nJ. P. Healy, for the respondents.\", \"word_count\": \"2549\", \"char_count\": \"14452\", \"text\": \"Ames, J.\\nThe proceedings of the board of aldermen, in the matter of the widening of the street in question, were instituted under the St. of 1866, c. 174. The subsequent repeal of one section in that statute by the St. of 1868, e. 276, was- accompanied with the saving clause, that it should not affect any rights or liabilities already accrued. According to the decision in Jones v. Boston, 104 Mass. 461, the liability of the petitioners to be assessed was not affected by the St. of 1868.\\nThe first reason assigned in the petition for holding the assessment to be unauthorized and void is substantially that, before proceeding to adjudicate upon the widening of the street, the board of aldermen gave no notice of any intention on their part to make any assessment of the kind. We are all of opinion that in this case the law did not require any formal preliminary notice of that kind to be given. The law, under which the board of aldermen were acting, had made a material change in the rule which was to regulate the estimate of damages to be awarded to any person, a portion of whose land should be taken for a street. Under this new rule, no allowance whatever by way of set-off, or reduction of damages, was to be made, on account of any special or peculiar benefit or advantage which such person might derive from the improvement. Authority was given to the board to assess the expense of making such improvement, with a definite limitation as to amount, upon all estates abutting upon the street so laid out or altered, and receiving any special benefit and advantage from the proceeding. The power to widen a street, under such a regulation as to damages, included the power, at game stage of the proceedings, to make such an assessment. The right of assessment was one of the incidents of the widening, so that when the petitioners were notified that a portion of their land was to be taken, in this manner and for such a purpose, they were virtually notified that so much as remained, after the taking, might be liable to be assessed for a part of the expense of the widening, and would be so assessed, if, in the opinion of the board, it had received any special benefit and advantage from the widening. St. 1866, c. 174, \\u00a7 5. Notice of the intent to take was substantially equivalent to, and included, notice of all that would in regular course follow such taking. The petitioners had the opportunity, provided for in \\u00a7 8, to exercise the option of giving up their estate to the city rather than to be assessed according to \\u00a7 5. The statute requires that option to be exercised before any portion of the expenses are incurred, and even before the land damages are estimated. As the question of the public convenience and necessity that might require the proposed improvement was one in which these petitioners had no voice, and as the necessary expenses to be thereby incurred were matters as to which the city authorities had the exclusive control and responsibility, there was no apparent necessity for any special notice to the petitioners upon either of these points. It is safe to say that in the case of proprietors, a portion of whose land is to be taken for a public use of this kind, no preliminary notice is required by law other than that which was given in this case.\\nThe next objection relied upon by the petitioners is that in the adjudication of the widening it was adjudged that no damages were sustained by any person whose land was taken, \\\" and that there were no estates abutting on the street that were benefited by the widening.\\\" If any injustice was done to persons whose land was taken by the judgment that they had sustained no damage, they had an ample remedy, by applying for a jury to revise the decision of the board of aldermen. If they have neglected to do so, we do not see how that decision, upon the subject of damages, could have any effect upon the validity of this assessment. It could only diminish the amount of the expenses which were te be in part paid from the assessment. As a matter of fact, there was no adjudication \\\" that there were no estates abutting on the street that were benefited by the widening.\\\" The aider-men, at that stage of the case, were dealing with the question of public convenience, and with that of land damages only. They certainly did not, and it is questionable whether they could, at that point of time \\\" adjudicate \\\" that no estates had been benefited, so as to be liable to assessment.\\nThe third objection is that \\\" in the adjudication of widening, no estimate was made of the expense of the widening.\\\" If this objection refers to the final order of the board, it seems to be without foundation in fact, inasmuch as that order expressly estimates the expense at $400,000. Moreover, we see no reason to suppose that the statute contemplates that the net expenses will be computed by estimation beforehand\\\". Whiting v. Boston, 106 Mass. 89, 95.\\nThe two remaining objections may conveniently be considered together, namely, 1st, that the board proceeded, without authority and without notice, to determine that certain estates had been benefited and were liable to be assessed; and 2d, that \\\" there was no authority in law to make said assessments, at the time and in the manner they were made.\\\" In support of these objections, it is argued that the law requires an adjudication of betterments at the same time with, and as a part of, the adjudication widening the street and awarding damages. But we have recently decided that an assessment of this kind is necessarily subsequent to the widening. From the nature of the case it cannot be made until the completion of the work. \\\" One element in the apportionment, 1 the net expense of grading the whole widened street,' cannot be sooner ascertained.\\\" Whiting v. Boston, 106 Mass. 89, 95. Jones v. Boston, 104 Mass. 461. In a certain limited sense, this assessment may be said to be a part of the same proceeding with the original laying out or widening. The right of a party, whose land is taken, to damages, and his liability to be assessed for benefits received from such taking, accrue at the time of the taking; and the benefits, as well as the damages, are to be estimated as of that date. Jones v. Boston, ubi swpra.\\nBut in all other respects it appears to us that an assessment of this kind is a separate and independent proceeding. It is a tax, local and special it is true, but the object of the expenditure is a public one, for which taxation is authorized. Codman v. Johnson, 104 Mass. 491. It is to meet the case of a street which has been constructed or altered for public reasons, but in such a manner as not only to be a matter of public convenience, but also, as to estates adjoining or near to it, to be productive of certain special and peculiar benefits and advantages beyond the general advantage to other real estate in the same city. In such a case money is expended in effecting an improvement of a special and local character, which, although it may enure to a certain extent to the benefit of the public, is especially necessary and beneficial to the owners of private property in the immediate vicinity. In Dorgan v. Boston, 12 Allen, 223, it was held to be within the constitutional capacity of the Legislature to authorize such a tax. But it has very little connection with the preliminary proceeding of the taking of the land. The expenses which are to be assessed are all of them incurred after such taking. The city appropriates the land in the first place, as it has a right to do, paying, or becoming liable to pay, such damages as may be legally recoverable therefor. It then proceeds, as it has a right to do, after having laid out a new street or altered an old one, to tax the owners of all the estates specially and peculiarly benefited thereby, including the party a portion of whose land has been appropriated to this public use, for a portion of .the expense of the improvement. The statute then in force prescribed no limit of time within which this assessment should be made; Jones v. Boston, 104 Mass. 461; and the law as it now stands allows two years from the passage of the original order. St. 1869, e. 367, \\u00a7 1. It is therefore not only unnecessary, but it is also impossible, that the assessment of the expenses among the persons who have derived benefit from the improvement should be contemporaneous with, and make a part of, the original adjudication widening the street and awarding damages.\\nThis assessment, being in the nature of a tax, which the board of aldermen had authority to levy, has been apportioned among the proprietors of the estates abutting upon the street. The expenses of the widening have been ascertained, and ample notice has been given to the petitioners of the portion which was charged against them. If any .wrong has been done to them by a disproportionate valuation of their estate, or by including any illegal element of computation, or by any error in the estimate of the benefit which they have derived from the widening, the proper remedy is by an application for a jury to revise the finding of the aldermen. It is not a case for the issue of a writ of certiorari.\\nPetition dismissed.\"}"

mass/2149272.json

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+"{\"id\": \"2149272\", \"name\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others; Same vs. Same\", \"name_abbreviation\": \"Choate v. Jacobs\", \"decision_date\": \"1884-01-22\", \"docket_number\": \"\", \"first_page\": \"297\", \"last_page\": \"299\", \"citations\": \"136 Mass. 297\", \"volume\": \"136\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:27:52.540830+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others. Same vs. Same.\", \"head_matter\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others. Same vs. Same.\\nEssex.\\nNov. 7, 1883.\\nJan. 22, 1884.\\nW. Allen & Holmes, JJ., absent.\\nIf a decree of the Prohate Court, reforming the account of an administrator, has been affirmed by this court on appeal, and the case remitted to the Probate Court for further proceedings, that court may authorize the bringing of an action upon the administrator\\u2019s bond, although the certificate of the decision of this court has not then been filed in the Probate Court; and, in the action on the bond, neither the administrator nor his sureties are entitled to contest the validity of the order authorizing the action.\\nThe failure of an administrator to pay to the widow of his intestate an allowance, made and ordered to be paid by a decree of the Probate Court, is a breach of his bond for which his sureties are liable; and, in an action on the bond, evidence of gross negligence on the part of the administrator, offered by the sureties as tending to show that the decree should not have been made, is incompetent.\\nThe failure of an administrator to pay to the heirs of his intestate, on demand, rents of real estate received by him, before any decree of the Probate Court in relation thereto, is not a breach of his bond for which his sureties are liable.\\nTwo ACTIONS OF CONTRACT upon a bond executed to the judge of probate by the defendant Jacobs, as principal, and William P. Clark, who alone defended, and Charles L. Pierce, as sureties, and conditioned for the faithful performance by Jacobs of his duties as administrator of the estate of Joshua H. Poole; the first action being brought for the benefit of the widow of. Poole, and the second for the benefit of the widow and next of kin of Poole. Trial in this court, before Eield, J., who reported the cases for the consideration of the full court The facts sufficiently appear in the opinion.\\nJ. M. Raymond, for the plaintiff.\\nH. Wardwell, for the defendant Clark.\", \"word_count\": \"1125\", \"char_count\": \"6340\", \"text\": \"Devens, J.\\nThe defendant Clark, the surety on the bond in suit, objects, in regard to both these actions, that, when the order of the Probate Court was made, authorizing the bringing these suits upon the bond, the whole matter had been transferred to this court; and that, although a decision had been rendered affirming the decree of the Probate Court reforming the account of the administrator, and remitting the case for further proceedings, the certificate thereof not having then been filed in the Probate Court, it had at the time no jurisdiction to make such an order. The decree of the Probate Court appealed from having been affirmed, it was in full force when the order was granted, even if the proper certification of such affirmance had not been made. It was competent to supply this deficiency in the records of the Probate Court- at any time, so as to show thereby that the original decree had been affirmed when the order was made. Again, as the administrator has no such interest in the matter of granting leave to bring an action on the bond as to give a right to resist the application therefor, or to be heard thereon, it follows that, when a suit has been brought thereon, neither he nor his sureties are entitled to contest the validity of the order of the court authorizing it. Fay v. Rogers, 2 Gray, 175. Richardsons v. Oakman, 15 Gray, 57. Richardson v. Hazelton, 101 Mass. 108. Bennett v. Woodman, 116 Mass. 518. The ruling requested, that the order of the judge of probate permitting the suits to be brought was unauthorized, was therefore rightfully refused.\\nThe decree of the Probate Court making an allowance to the widow and ordering the same to be paid, and the failure and refusal of the administrator to pay according to the decree, was a breach of his bond for which his sureties were liable. Pub. Sts. c. 135, \\u00a7 2. Nor were the sureties entitled to impeach the decree collaterally, and to show that the settlement of the accounts of the administrator, as made by the Probate Court, was erroneous. Their obligation is that their principal shall pay the moneys in his hands in such manner and to such persons as the Probate Court shall direct. His failure to make payment according to such decree is the breach of the administration bond. White v. Weatherbee, 126 Mass. 450. The evidence of gross negligence on the. part of their principal, offered by the sureties as tending to show that the decree should not have been made, was therefore incompetent.\\nIn the second action, without reference to the question whether the surety on the bond would be liable for the rents of the real estate received by the administrator, it was correctly ruled that the action could not be maintained. If the executor or administrator uses or occupies any part of the real estate, he is to account for the same as ordered by the Probate Court, and provision is made for determining the amount thus to be accounted for by him. Pub. Sts. c. 144, \\u00a7 5. Rents received by the ad ministrator are governed by the same rule. Brooks v. Jackson, 125 Mass. 307. He is to account for them to the heirs and devisees only, unless they, either expressly, or by implication from assenting to his accounts in which he has charged himself with rents as part of the general assets, have agreed that they shall be applied to the payment of legacies and expenses of administration, in which case he is chargeable accordingly. Stearns v. Stearns, 1 Pick. 157. Newcomb v. Stebbins, 9 Met. 540, 544. Palmer v. Palmer, 13 Gray, 326, 328. Alden v. Stebbins, 99 Mass. 616. Almy v. Crapo, 100 Mass. 218. Towle v. Swasey, 106 Mass. 100. Choate v. Arrington, 116 Mass. 552. Brooks v. Jackson, ubi supra. As therefore the administrator might have received these rents with the consent of the heirs, and for the benefit of the parties interested in the estate, that he might thereby pay the debts of the intestate, a decree was necessary to determine whether the administrator was to account for them to heirs only, as well as to determine their rights inter sese. Until this decree was made, the failure to pay the same to the heirs on demand did not make a breach of the bond.\\nIn conformity with the terms of the report, judgment in the first case is to be entered for the penal sum in the bond; and, in the second, the plaintiff is to become nonsuit.\\nJudgments accordingly.\"}"

mass/2152592.json

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+"{\"id\": \"2152592\", \"name\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith\", \"name_abbreviation\": \"Noxon v. Smith\", \"decision_date\": \"1879-10-27\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"487\", \"citations\": \"127 Mass. 485\", \"volume\": \"127\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:58:42.314119+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith.\", \"head_matter\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith.\\nBerkshire.\\nSept. 9.\\nOct. 27, 1879.\\nEndicott & Lord, JJ., absent.\\nA promissory note, payable to \\u201cthe trustees\\u201d of a church \\u201cor their collector,\\u201d is not regotiable; and an action thereon cannot be maintained by a part only of the trustees.\\nContract on a promissory note for $333, dated Great Barrington, March 10, 1870, payable to \\u201cthe trustees of the Methodist Episcopal Church or their collector,\\u201d and signed by the defendant. Answer, a denial that the plaintiffs could maintain the action; and want of consideration. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, on an agreed statement of facts, which, after stating that the pleadings might be referred to, was in substance as follows:\\nThere is and has for a long time been a religious corporation at Great Barrington called the Methodist Episcopal Church, of which the defendant was a member at the time of the giving of the note in suit. The financial and business affairs of the church are entrusted to a board of trustees who are elected annually. The trustees of the church, when the note in suit was given, were five in number including the two plaintiffs, who were of the trustees at the time of bringing this action, and were at the time of bringing this action a collection committee authorized by the board of trustees to collect said note by suit or otherwise. The church for many years has owned and occupied a meeting house in Great Barrington, and a few years prior to the date of the note made additions to and repairs upon the meeting-house. After the additions and repairs were completed, the means pi ovided therefor were found to be insufficient, and the church was left in debt. After the debt had stood for some time, and until February 1,1869, it was proposed by persons, who were members of the church or interested therein, to raise money by subscription to pay off the debt, or to obtain the promise of money for that purpose, and a subscription paper was drawn up and different persons subscribed thereto in various sums, some paying their subscriptions in money and some giving notes therefor; and it was the duty of the board of trustees for the time being to pay the money received from the subscriptions and the money from time to time collected on the notes, in discharge of the indebtedness of the church. The defendant subscribed for said purpose the sum of $500, and, having paid a part of that sum in money, gave the note in suit for the balance, upon which she has made payments from time to time of principal and interest, which were indorsed on the note. No other consideration was given or received for the note than is shown by the above facts.\\nB. Palmer & H. C. Joyner, for the plaintiffs.\\nJ. Dewey, for the defendant.\", \"word_count\": \"743\", \"char_count\": \"4200\", \"text\": \"Soule, J.\\nThe instrument sued on is properly described as a promissory note. Though it purports to be payable to \\\"the trustees of the Methodist Episcopal Church or their collector,\\\" the payee is not therefore uncertain, and the instrument does not come within the class of cases in which instruments otherwise in the form of promissory notes are held not to be promissory notes because made payable in the alternative to either of two persons named. Osgood v. Pearsons, 4 Gray, 455. That rule applies to cases in which, so far as the instrument shows, the two persons named as alternative payees are strangers to each other. It does not apply when the instrument discloses the fact that one of the two persons named is named as agent for the other to receive the money. Holmes v. Jaques, L. R. 1 Q. B. 376. In the case at bar, it is evident that \\\"their collector \\\" is merely a person authorized by the payee to receive the money in its behalf.\\nThe note is not negotiable, and it is not payable to the plaintiffs. They have no beneficial interest in it, are not personally named as payees, and are not \\\" the trustees \\\" of the church, but only a part of them, and they cannot maintain the action. Wiggin v. Cumings, 8 Allen, 353. In this view of the case, it is unnecessary to consider the other questions which were raised at the argument. Judgment for the defendant.\"}"

mass/21681.json

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+"{\"id\": \"21681\", \"name\": \"Trustees of Amherst College vs. Assessors of Amherst\", \"name_abbreviation\": \"Trustees of Amherst College v. Assessors of Amherst\", \"decision_date\": \"1899-05-16\", \"docket_number\": \"\", \"first_page\": \"232\", \"last_page\": \"233\", \"citations\": \"173 Mass. 232\", \"volume\": \"173\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:29:28.927653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Trustees of Amherst College vs. Assessors of Amherst.\", \"head_matter\": \"Trustees of Amherst College vs. Assessors of Amherst.\\nHampshire.\\nSeptember 20, 1898.\\nMay 16, 1899.\\nPresent: Field, C- J-, Holmes, Kn owl ton, Barker, & Hammond, JJ.\\nTax upon House of President of a College\\u2014 Law and Fact.\\nAt the trial of a petition for the abatement of a tax upon the house of the president of a college, upon the ground that it was exempt by Pub. Sts. c. 31, \\u00a7 5, cl. 8, it appeared that before he occupied the house it had been let for a school, that be lived in it with his family, paid rent to the college and water rates, established a tennis court at his own expense, and some years at least paid for the care of the grounds, and that he paid the inside expenses. He might be found to have exercised the same control over it that he did over another house which lie previously had hired. Held, that it could not be said, as matter of law, that the house was exempt.\\nAppeal to the Superior Court, from the decision of the respondents, on' a petition for an abatement of a tax. Trial, without a jury, before Hardy, J., who found for the petitioners; and the respondents alleged exceptions. The facts appear in the opinion.\\nW. Hamlin, ( W. J. Reilley with him,) for the respondents.\\nM. F. Dickinson, Jr., (J. C. Hammond & H. P. Field with him,) for the petitioners.\", \"word_count\": \"495\", \"char_count\": \"2684\", \"text\": \"Holmes, J.\\nThis is a petition for the abatement of a tax upon the house of the president of Amherst College, upon the ground that the house was exempt by Pub. Sts. c. 11, \\u00a7 5, cl. 3. The judge presiding in the Superior Court ruled, as matter of law, that the house was exempt, and reported the question. The ease came before him upon the testimony of the president, supplemented by some agreed facts. It appeared that before the occupation by the president the house had been let for a girls' school. The president lived in it with his family, paid rent to the college and water rates, established a tennis court at his own expense, and some years at least paid for the care of the grounds. He paid the inside expenses of the house. He might be found to have exercised the same control over\\\" it that he did over another house which he previously had hired. In view of these facts, we think it impossible to say, as matter of law, that the case is not within Williams College v. Williamstown, 167 Mass. 505. The most that could be contended is that there was evidence warranting a finding of fact that the dominant purposes of the president's occupation were not private, but those for which the college was incorporated. It is unnecessary to state what evidence there was tending in that direction. It is enough to say that the ruling to that effect, as matter of law, was wrong. New trial ordered.\"}"

mass/235595.json

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+"{\"id\": \"235595\", \"name\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others\", \"name_abbreviation\": \"Astuccio v. R.K. Ahern Co.\", \"decision_date\": \"2001-01-05\", \"docket_number\": \"No. 98-P-2299\", \"first_page\": \"662\", \"last_page\": \"666\", \"citations\": \"50 Mass. App. Ct. 662\", \"volume\": \"50\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:04:19.407040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others.\", \"head_matter\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others.\\nNo. 98-P-2299.\\nEssex.\\nOctober 10, 2000.\\nJanuary 5, 2001.\\nPresent: Perretta, Gillerman, & Porada, JJ.\\nMorris J. Gordon for the plaintiff.\\nThomas C. Tretter for Family Mutual Savings Bank.\\nOf the Wenfield Realty Trust.\\nRobert K. Ahem, Roland Couillard, and Family Mutual Savings Bank as defendant pursuant to trastee process.\", \"word_count\": \"1908\", \"char_count\": \"10937\", \"text\": \"Porada, J.\\nThe plaintiff commenced an action in the Superior Court against R.K. Ahem Co., Inc., Robert K. Ahem, and Roland Couillard (debtors) on a promissory note. In that action, she obtained approval of a trustee process attachment of all funds of the debtors in possession of Family Mutual Savings Bank (trastee). Upon the debtors' default, the plaintiff was awarded judgment in that action in the sum of $699,764.30, after which she filed a motion to charge the trustee, and requested an evidentiary hearing to determine the sum the trustee should be charged based on a discrepancy between the amount of funds the trustee had answered it possessed and the amount of funds the trustee disclosed in answers to interrogatories was actually held by it for R.K. Ahem, Co., Inc., at the time of service of process upon the trustee. The motion was scheduled for a hearing before a Superior Court judge whom the parties agree heard arguments of counsel and allowed counsel to file memoranda. After the memoranda were filed, without holding an evidentiary hearing, the judge found based on \\\"undisputed facts\\\" that even though there was $52,820.06 in the account of R.K. Ahem Co., Inc., at the time of service of process upon the bank on September 28, 1991, the bank was only chargeable for the sum of $349.07, the sum remaining in the account on October 7, 1991, when the bank discovered the existence of the account. Relying on Eddy v. O'Hara, 132 Mass. 56, 61 (1882), and by implication on the provisions of G. L. c. 246, \\u00a7 27, the motion judge determin\\u00e9d that the bank's employees had acted reasonably and in good faith in an effort to comply with the attachment and, thus, should not be chargeable for the withdrawal of funds from this account between the time of service and the bank's discovery of its existence. On appeal, the plaintiff argues that the motion judge should have afforded her an evidentiary hearing before rendering this decision, because there were material issues of fact in dispute. Although the judge should not be faulted for believing that the parties had submitted the case to him based on their memoranda, an evidentiary hearing was warranted to determine whether knowledge of the service of process should be imputed to the agents of the trastee who allowed withdrawals to be made on this account after service and, thus, whether the trustee should be chargeable with a sum greater than that set forth in its answer. We reverse the judgment and remand this case to the Superior Court for further proceedings.\\nAs a backdrop for our decision, we outline additional facts that do not appear to be in dispute by the parties. At issue in this case is a checking account of R.K. Ahem, Co., Inc., which the trastee had acquired from the former Lowell Institution for Savings under an agreement with the Federal Deposit Insurance Corporation (FDIC) on or about August 30, 1991. At the time of service upon the trustee's employee at a branch bank in Bradford on September 28, 1991, which was a Saturday, this account had $52,820.06 in it. At the time service was received, employees of the trustee receiving a summons were required to initial the time and date of receipt of service and to call the trustee's operations office so that a hold could be placed on the funds in question. The operations office of the trustee was not open on Saturdays and was located at Ward Hill. The branch employee of the trustee served with the summons averred that she had no memory of the service, and the trustee stated that the operations department first learned of the trustee process summons on Wednesday, October 2, 1991, at 10:15 a.m., at which time a computer search was made which failed to disclose any accounts of the debtors. Nor did a subsequent search at 1:00 p.m. on that date reveal any such accounts. On October 7, 1991, the president of the trustee received a letter from the FDIC dated October 4, 1991, informing the trustee that the FDIC had received at the office of the former Lowell Institution for Savings a trustee summons for the Family Mutual Savings Bank regarding the debtors' accounts and had determined that the FDIC was not a trustee of any of the debtors' accounts. The trustee process summons was enclosed in that letter. As a result of the receipt of this letter on October 7, 1991, another search was made and an account standing in the name of \\\"R.K. Ahemco., Inc.,\\\" with $349.07 in it was found on that date. During the interval from Monday, September 30, 1991, until Monday, October 7, 1991, the account had dwindled from $52,820.06 to $349.07 as a result of payments made by the trustee on this account including two to Robert Ahem, one (an \\\"in-clearing cash letter\\\") on October 1, 1991, for $20,000, and one on October 2, 1991, for $15,500 (this payment was alleg edly made one hour after the operations department had been alerted to an outstanding trustee summons on the account).\\nIn reaching his decision, the motion judge determined that the trustee's employees had acted reasonably and in good faith in an attempt to comply with the trustee process summons and thus should not be held liable for a greater sum than set forth in its answer. The motion judge relied on dicta in Eddy v. O'Hara, 132 Mass. at 61, in which the Supreme Judicial Court noted that \\\"[t]he trustee, being a mere stakeholder summoned into a suit in which he has no personal interest, is entitled to the protection of the court under circumstances in which an ordinary defendant might be held liable.\\\" In light thereof, the motion judge also reasoned that if a trustee, who after receipt of service of process but without knowledge of the service of process makes a payment in good faith from the trusteed account, cannot be held liable pursuant to G. L. c. 246, \\u00a7 27, it would be inequitable to hold a trustee who has knowledge of the attachment but does not know that he possesses funds subject to the attachment liable for payments made in good faith out of those funds. However, in so ruling, we believe the motion judge overlooked the compulsory nature of the payments in the Eddy case in contrast to the voluntary payments by the trustee's agents in this case, and misread the thrust of \\u00a7 27, which provides protection to a trustee from liability when he makes a payment in good faith of trusteed funds after receipt of service but before knowledge of the service of process. Here, the pertinent inquiry was whether knowledge of receipt of the trustee process by the branch employee should have been imputed to the trustee's employees who made payments from the trustee account after the service but before the trustee placed a hold on the account and, if so, when. If not, then the trustee under the provisions of G. L. c. 246, \\u00a7 27, could not be chargeable for any such payments made without knowledge. See Spooner v. Rowland, 86 Mass. 485, 486-488 (1862) (under G. S. c. 142, \\u00a7 28, a predecessor of G. L. c. 246, \\u00a7 27, a trustee was not chargeable for funds paid out after receipt of proper service on it but before actual knowledge of service of process on it by agent making payment); Williams v. Kenney, 98 Mass. 142, 143-144 (1867) (\\\"[pjayment in good faith and without knowledge of the service of trustee process, on the part of the party so paying, will discharge the trustee\\\"). This determination would of necessity present material issues of fact, namely to whom did the branch employee receiving the trustee process summons give notice of receipt of the summons, when did she give notice, was the action taken by her reasonable, and was there neglect or an unreasonable delay in discovering this account and placing a hold on it by the trustee, particularly in light of the continuing processing of checks on this account by agents of the trustee after receipt of service on September 28, but before a hold was placed on the account on October 7. See Williams v. Kenney, 98 Mass. at 144-145. Upon remand, a judge of the Superior Court may determine whether those factual issues should be tried by him or a jury, G. L. c. 246, \\u00a7 17, and the burden will lie with the plaintiff to show that the trustee should be charged in an amount greater than the sum set forth in its answer. Workers' Credit Union v. Hannula, 285 Mass. 159, 160 (1934).\\nThe judgment is reversed and the action is remanded to the Superior Court for further proceedings not inconsistent with this opinion.\\nSo ordered.\\nThe judge also took a statement from Couillard. The plaintiff in this appeal has waived any claim to assets held by the trustee for Couillard.\\nGeneral Laws c. 246, \\u00a7 27, provides: \\\"If, after the service of process on the trustee, but before he has knowledge thereof, he makes any payment in good faith or becomes liable to a third person by reason of the goods, effects or credits in his hands, or delivers such goods, effects or credits to the defendant or to any other person who may be entitled thereto, he shall be allowed therefor in the same manner as if the payment or delivery had been made, or as if the liability had been incurred, before the service of process.\\\"\\nAlthough the plaintiff requested an evidentiary hearing in her motion, in the memorandum submitted she does not continue to press for an evidentiary hearing on the chargeability of the trustee on the R.K. Ahern, Co., Inc., account or clearly state the material issues of fact in dispute. Likewise, the defendant in its memorandum refers to the facts as undisputed.\\nThe motion judge found that this summons had been forwarded to the FDIC at the former Lowell Institution for Savings by the branch employee.\\nThe trustee argues that the service of process was insufficient in this case and thus it should be discharged. We deem this issue waived, for it was not raised in the trustee's answer. While we recognize that the form of a trustee's answer is prescribed by Mass.R.Civ.P. 4.2(d), 365 Mass. 742 (1974), we see no reason why the waiver provisions of Mass.R.Civ.P. 12(h), 365 Mass. 757 (1974), should not also apply to a trustee's answer. The trustee should have moved either to strike the summons or to have included a challenge to the sufficiency of service in its answer and not waited until a motion to charge the trustee was filed more than six years after service of process. In any event, the return on the trustee summons shows service on \\\"Ann English, agent in charge at the time of service for Family Mutual Savings Bank,\\\" which on its face would appear to comply with G. L. c. 223, \\u00a7 37. See Zani v. Phandor Co., 281 Mass. 139, 144 (1932).\"}"

mass/235639.json

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+"{\"id\": \"235639\", \"name\": \"Commonwealth vs. Keith Nurse\", \"name_abbreviation\": \"Commonwealth v. Nurse\", \"decision_date\": \"2000-08-24\", \"docket_number\": \"No. 99-P-461\", \"first_page\": \"36\", \"last_page\": \"41\", \"citations\": \"50 Mass. App. Ct. 36\", \"volume\": \"50\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:04:19.407040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Keith Nurse.\", \"head_matter\": \"Commonwealth vs. Keith Nurse.\\nNo. 99-P-461.\\nPlymouth.\\nMarch 21, 2000.\\nAugust 24, 2000.\\nPresent: Kass, Gillerman, & Jacobs, JJ.\\nBrownlow M. Speer, Committee for Public Counsel Services, for the defendant.\\nJohn E. Bradley, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"1906\", \"char_count\": \"11314\", \"text\": \"Kass, J.\\nWhile in the custody of police on a charge of prostitution, Tracy Jones complained of a rape that had occurred close to three months (more precisely, eighty-three days) earlier. The police detective to whom she confided the details of that sexual assault was permitted, over objection, to testify in full detail before a jury in Superior Court about what Jones had told him. The defendant was convicted of rape. We conclude that, in the circumstances, Jones's complaint to the detective was not reasonably prompt, and that the detective's account of his conversation with her should not have been received in evidence as fresh complaint. Accordingly, we reverse the judgment of conviction.\\n1. The evidence at trial. Jones's description of the rape at trial was that it occurred in the early morning on a Sunday during the first week of April. Jones had been out buying drugs, \\\"did 'em,\\\" i.e., had used them, and was walking to what at the time was home, the apartment of her friend \\\"Buttons\\\" Hagler. En route, she noticed a man, whom she identified at trial as the defendant, in a red \\\"sports car-looking car.\\\" The defendant and Jones negotiated an act of fellatio for $20 to $25, and she went with him in his car to where this might be done discreetly. Jones, who was a prostitute, had a favorite spot, but the man wished to go to his location of choice. When the defendant directed that they leave the car, on the ground that it belonged to his girlfriend and he did not want to risk soiling it, Jones became uneasy.\\nJones was justly apprehensive. Once they were outside the car, the defendant threw her to the ground, put his foot on her throat, demanded oral sex, called her \\\"a cunning bitch, a whore,\\\" and said he was going to kill her. Jones got on her knees and performed fellatio. After about two minutes the defendant ejaculated. Then he choked her. Jones told the defendant that someone was coming. He looked around and told her to \\\"run this way,\\\" while he went the opposite way toward his car. Jones first ran to a bus stop, but no bus was due for fifteen minutes, and she continued on. Jones then encountered Arthur Dias, who was outside his house on the way to work, and she asked him for a ride. Once inside Dias's truck, she told him she had just been raped behind a nearby abandoned building. He suggested driving her to the police station, but she declined and asked to be taken home. There, Jones testified, she told her friend Hagler that she had been raped and almost killed. Hagler did not appear as a witness.\\nAlmost three months later, on June 26, 1993, Jones was arrested after getting into a car with an undercover policeman and discussing sex for a price. On the way to the police station, she expressed wonder to Detective Robert Leedburg, who was taking her there, that the police were \\\"after me when he should be after the guy who raped me.\\\" At the police station, she saw a picture of the defendant on a poster and identified the photograph as of her assailant. Later at the police station, she made a confirmatory identification from a photographic array.\\nAt trial, the Commonwealth buttressed the testimony of Jones with fresh complaint evidence from Dias. He testified that Jones had told him she had just been raped and where. Dias was quite certain that the day was not a Sunday as he had assisted Jones on a work morning and did not go to work on Sunday mornings. When the Commonwealth offered to have Detective Leedburg testify as to what Jones had said to him in the police cruiser, defense counsel objected \\\"to any testimony from this officer under the theory of fresh complaint.\\\" More specifically, defense counsel said, \\\"I'm asking the [cjourt to rule that this testimony is not fresh, that the complaint is not fresh. It does not fall under any theory of an exception to the hearsay rule.\\\" The trial judge overruled the objection and Detective Leedburg proceeded to repeat in detail the rape as Jones had described it, plus a detail (involving the defendant having put his knee on Jones's chest and then hitting her several times) that had not been included in Jones's account.\\n2. The fresh complaint. Fresh complaint has been the object of frequent appellate analysis and commentary in the past decade. See Commonwealth v. Montanino, 409 Mass. 500, 507-511 (1991); Commonwealth v. Lavalley, 410 Mass. 641, 642-646 (1991); Commonwealth v. Licata, 412 Mass. 654, 656-660 (1992); Commonwealth v. Peters, 429 Mass. 22, 27-31 (1999); Commonwealth v. Lagacy, 23 Mass. App. Ct. 622, 623-627 (1987); Commonwealth v. Dion, 30 Mass. App. Ct. 406, 412-414 (1991) (see Appendices A and B in which cases are collected); Commonwealth v. Hyatt, 31 Mass. App. Ct. 488, 490-492 (1991); Commonwealth v. Johnson, 35 Mass. App. Ct. 211, 215-217 (1993); Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 346-347 (1999). It is instructive also to consult one of the original decisions on this evidentiary question, Commonwealth v. Cleary, 172 Mass. 175, 176-177 (1898).\\nSeveral guiding principles emerge from the decisional history. There is unease about the historical assumption behind the fresh complaint doctrine, that a rape complainant who has not raised an immediate hue and cry is suspect. Commonwealth v. Licata, 412 Mass. at 658. Commonwealth v. Dion, 30 Mass. App. Ct. at 412. We accept fresh complaint as an exception to the hearsay rule, however, because rape cases are generally without percipient third party witnesses and, therefore, present credibility duels between alleged attackers and alleged victims. Prompt complaint, by reason of its spontaneity, is taken as reliable for the limited purpose of corroborating the complainant's account. While \\\" 'freshness' is not solely a question of the clock or calendar, yet the passage of time is surely important: as time extends itself, a complaint loses character as a spontaneous accusation after grievous wrong; moreover, opportunity grows for invention or distortion of an event by mistake, twist of memory, fantasizing, contrivance, etc.\\\" Id. at 413.\\nIn cases of complaint of rape by children, the tolerance of what is fresh complaint has become quite extended in recognition of the child's fear, repression, threats of coercion, psychological control by the abuser, or lack of understanding of what happened. See, e.g., Commonwealth v. Souther, 31 Mass. App. Ct. 219, 222 (1991) (nine months); Commonwealth v. Hyatt, 31 Mass. App. Ct. at 489-490 (two years). Similarly, in the case of adults, we have recognized a complainant may be subject to confusion and fear, Commonwealth v. Lagacy, 23 Mass. App. Ct. at 626-627, or cultural pressures, Commonwealth v. Kruah, 47 Mass. App. Ct. at 346-347, that warrant tolerance of less than immediate complaint. In Lagacy we thought a delay of twenty-three days approached \\\"the extreme\\\" of tolerable delay. In the Kruah case, however, we accepted a fifteen-month delay because the victim was subject to pressures of her closely knit immigrant community not to bring shame upon them by complaining against the defendant, who was a powerful member of that community.\\nThe Commonwealth argues that the pressure on the complainant in the instant case was that a prostitute is likely to see contact with the police as trouble and that, therefore, Jones's disinclination to complain to the police about the rape (it will be recalled that Dias offered to drive Jones to the police station and that she declined) was reasonable. Once she was in the hands of the police anyway on June 26, 1993, Jones no longer felt that inhibition and felt free to talk about the April rape.\\nAssuming inhibition by a prostitute about contact with the police, in the instant case Jones had earlier been in the custody of the police, in connection with a drug offense, two weeks after the sexual assault of which she complained, and long before the brush with the police in June. Jones said nothing then about the rape, even though at that time keeping the police at arm's length was academic; she was in their arms. The disinclination of a prostitute to talk to the police, particularly on the facts of this case, is too marginal a rationalization to extend what would be a reasonable time for reporting a rape to the police.\\nWe think that in the case of an adult of normal intelligence and emotional state, not subject to powerful family or community forces, or intimidation from the abuser, a complaint of rape made eighty-three days after the event, as matter of law, is not fresh, but stale. To receive evidence of a complaint to another in such circumstances would proceed far down the path of eliminating any criterion of promptness from \\\"fresh complaint,\\\" would run the risk of fabrication, and would eviscerate the rule as it is generally understood. We are of opinion that this is a case of extreme delay in which the evidence of Jones's complaint to Detective Leedburg should have been excluded as matter of law. The error was not a harmless one as, unlike the fresh complaint evidence given by Dias, the testimony drawn from Detective Leedburg, as we previously observed, repeated all the details that Jones had described, and then some. Nor, as the Commonwealth argues, was Leedburg's testimony about what Jones said to him admissible on the ground that defense counsel's cross-examination of Jones had opened it up. That cross-examination did not delve into what Jones had said to Leedburg about the rape and, therefore, did not establish a basis for redirect examination on the subject.\\n3. Comment on missing witness. Against the possibility that the issue may recur at a new trial, we consider the defendant's claim that the trial judge erred in not permitting defense counsel to comment on the failure of the Commonwealth to call Buttons Hagler, to whom Jones said she reported the rape as soon as she got home after the assault. Defense counsel had hoped to call Hagler \\u2014 and so told the jury in his opening statement \\u2014 to testify that she had not heard from Jones about the rape and that, indeed, she did not know Jones. Hagler did not respond to her summons. Faced with resting his case without this tactical trump, defense counsel sought to comment in closing that the jury should remark the failure of the Commonwealth to present Hagler as a witness to confirm her conversation with Jones.\\nThe trial judge acted within his discretion in disallowing such a comment. It was the defense that had said it would produce favorable testimony and it would not have been fair to allow a comment that implied the Commonwealth had a reason to call Hagler and had failed to do so because her testimony would be unfavorable. The prosecutor did not comment in his closing argument about the defendant's failure to produce Hagler. For recent cases considering the missing witness problem, see Commonwealth v. Richardson, 429 Mass. 182, 183-185 (1999); Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 386-387 (2000); Commonwealth v. Smith, 49 Mass. App. Ct. 827, 829-833 (2000).\\nJudgment reversed.\\nVerdict set aside.\\nA pseudonym.\"}"

mass/300426.json

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+"{\"id\": \"300426\", \"name\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell\", \"name_abbreviation\": \"Pearlin v. Farrell\", \"decision_date\": \"1970-01-30\", \"docket_number\": \"\", \"first_page\": \"741\", \"last_page\": \"741\", \"citations\": \"356 Mass. 741\", \"volume\": \"356\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:35:01.421224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell.\", \"head_matter\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell.\\nJanuary 30, 1970.\\nBenjamin Rudner for the plaintiff.\\nClement McCarthy for the defendant.\", \"word_count\": \"302\", \"char_count\": \"1755\", \"text\": \"This action of tort for personal in j mies sustained by the plaintiff's wife, Irene Pearlin, and for consequential damages sustained by the plaintiff arose from an accident in which the plaintiff's wife was struck and knocked down by an automobile owned and operated by the defendant on the Southern Artery in Quincy. The action was heard before an auditor, findings of fact not final, who found for the plaintiff. A trial before a judge and jury resulted in a verdict for the defendant. The case is here on the plaintiff's exceptions to the denial of twelve requests for instructions and of his motion for a new trial. We have reviewed the charge which we find to be comprehensive and exact and aided greatly by the defendant's analysis in her brief of the interrelationship of the plaintiff's requests and the charge itself. No good purpose would be served by an elaborate account of the facts and an item by item treatment of the requests. It suffices to say that we agree with the defendant that all requests which might properly have been given were covered in the charge, in some instances in more detail than was sought in certain of them. There was no error in the disposition of the requests. Campbell v. Shea, 332 Mass. 422, 425, and eases cited. Nor was the verdict of the jury so greatly against the weight of the evidence that it could be said that the denial of the plaintiff's motion for a new trial was an abuse of discretion amounting to an error of law or a miscarriage of justice. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59-61, and cases cited.\\nExceptions overruled.\"}"

mass/300542.json

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+"{\"id\": \"300542\", \"name\": \"James Athas & others vs. Mayor of Holyoke & others\", \"name_abbreviation\": \"Athas v. Mayor of Holyoke\", \"decision_date\": \"1969-11-04\", \"docket_number\": \"\", \"first_page\": \"382\", \"last_page\": \"385\", \"citations\": \"356 Mass. 382\", \"volume\": \"356\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:35:01.421224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Athas & others vs. Mayor of Holyoke & others.\", \"head_matter\": \"James Athas & others vs. Mayor of Holyoke & others.\\nHampden.\\nOctober 8, 1969.\\nNovember 4, 1969.\\nPresent: Wilkins, C.J., Cutter, Kirk, Spiegel, & Reardon, JJ.\\nJames F. Freeley, Jr., for the plaintiffs.\\nSamuel W. Ripa for the defendants.\", \"word_count\": \"971\", \"char_count\": \"5693\", \"text\": \"Cutter, J.\\nThree inhabitants of Holyoke and a corporation owning land there by their bill (the original bill) sought declaratory and injunctive relief. They named as defendants the mayor, the aldermen, and the members of the school committee of Holyoke.\\nThe original bill described an area in Holyoke comprising twenty-six acres (the locus), and then made substantially the following allegations. The locus had been used asr:a public park and a playground since 1907. In 1966 the school committee determined that the locus was \\\"necessary\\\" for a school site. The aldermen voted in favor of a transfer of the locus for use for school purposes. The Legislature purported to authorize this use by St. 1967, c. 174, with respect to about fourteen acres of the locus. The locus had been conveyed to the city by Holyoke City Hospital by deed dated August 31, 1907. A copy of the deed is attached to the original bill. It contained the provision, \\\"It is part of the consideration of this deed that the land herein conveyed is to be forever used for public park purposes.\\\"\\nA demurrer to the original bill was sustained on the grounds that the bill did not set forth facts warranting relief to the plaintiffs and that it appeared from the bill \\\"that there exists a want of necessary parties.\\\" The plaintiffs moved to amend the bill (first proposed amendment) to add six more individual inhabitants as plaintiffs, to add certain parties defendant, and to refer more specifically to \\\"an enforceable general public obligation or trust\\\" concerning the locus. This motion to amend was denied. The plaintiffs also sought to file a substitute bill which somewhat amplified the original bill and attempted to add the city, Holyoke Hospital (formerly Holyoke City Hospital), and the Attorney General as named defendants. The motion to make this amendment was denied. From this action and from a final decree dismissing the bill, the plaintiffs appealed.\\n1. If the locus was not acquired by the city in 1907 subject to a specific trust, it was \\\"held . . . [by the city] only in its municipal capacity . for the benefit of the general public subject to the power of the Legislature to authorize its sale.\\\" Brooks v. Boston, 334 Mass. 285, 287. See Loomis v. Boston, 331 Mass. 129, 131-132; Wakefield v. Attorney Gen. 334 Mass. 632, 636; Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 643. See also Vallentine v. Jacobson, 353 Mass. 769; Winchester v. Cox, 129 Conn. 106, 110-114. The plaintiffs contend, however, that the language of the deed of August 31, 1907, imposed a trust upon the city's holding of the locus. See Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18-25; Salem v. Attorney Gen. 344 Mass. 626, 630-631; Scott, Trusts (3d ed.) \\u00a7 351; Bogert, Trusts and Trustees (2d ed.) \\u00a7 34, 324; Restatement 2d: Trusts, \\u00a7 351. The 1907 deed is ambiguous. We refrain from deciding whether its provisions, taken with other allegations of the bill, sufficiently allege the existence of a valid public or charitable trust. The case can be dealt with on the grounds set forth below.\\n2. General Laws (Ter. Ed.) c. 214, \\u00a7 3 (11), specifically places within the concurrent jurisdiction in equity of this court and the Superior Court suits \\\"to enforce the purpose . of any . . . conveyance which has been . . . made to and accepted by any . . . city . for a specific purpose . . . in trust or otherwise . . . .\\\" It is provided, however, that \\\"[V]uch. a suit shall be commenced only on petition of the attorney general or, by leave of court, on petition of ten tax-payers of such . . . city.\\\" It is further provided that in the case of a petition by ten taxpayers, \\\"the attorney general shall be served with notice of the preliminary petition for leave.\\\" No compliance with this last mentioned provision has been alleged, and the Attorney General has not been joined as a party and has not intervened. See Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 644, 646. He has not authorized the bill to be brought in his name, and the original bill was not brought by ten taxpayers as plaintiffs. The demurrer to the original bill thus was properly sustained on the ground of want of parties.\\n3. It was within the discretion of the trial judge to deny leave to amend by filing the substitute bill. See Foster v. Shubert Holding Co. 316 Mass. 470, 477; Fryefield v. Boston Diaper Serv. Inc. 338 Mass. 401, 404. Cf. McDade v. Moynihan, 330 Mass. 437, 441-446. There had been no complete compliance with the prerequisites to suit under G. L. c. 214, \\u00a7 3 (11). There had been no attempt by amendment (see G. L. c. 231, \\u00a7 51, and \\u00a7 55, as amended by St. 1935, c. 318, \\u00a7 6; cf. Fulton v. Belmont, 333 Mass. 64) to seek relief by mandamus (see the Nickols case, 341 Mass. 13, 18, 27, supra) to require the appropriate municipal officers to enforce the provisions of the 1907 deed, so far as still enforceable. The judge may reasonably have thought that any litigation of the issues which the plaintiffs seek to present for decision could better be done by the initiation of wholly new proceedings joining all appropriate parties.\\nInterlocutory decree denying motion for leave to file a substitute bill affirmed.\\nFinal decree affirmed.\\nThe plaintiffs also filed a motion to add one more inhabitant of Holyoke as a plaintiff and a motion to refer in a new paragraph to the interest of the Attorney General. No action was taken on these motions.\"}"

mass/310334.json

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+"{\"id\": \"310334\", \"name\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\", \"name_abbreviation\": \"Commonwealth v. Collier\", \"decision_date\": \"1998-05-06\", \"docket_number\": \"\", \"first_page\": \"385\", \"last_page\": \"391\", \"citations\": \"427 Mass. 385\", \"volume\": \"427\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T02:00:38.183447+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\", \"head_matter\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\\nMiddlesex.\\nApril 10, 1998. -\\nMay 6, 1998.\\nPresent: Wilkins, C.J., Lynch, Greaney, Fried, Marshall, & Ireland, JJ.\\nStella Robinson for the defendant.\\nStephen C. Hoctor, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"2269\", \"char_count\": \"13351\", \"text\": \"Greaney, J.\\nA jury in the District Court found the defendant, Jeffrey S. Collier, Sr., guilty under G. L. c. 209A, \\u00a7 7, of violating a protective order because he came within one hundred yards of his former wife and in so doing placed her in fear of imminent serious physical harm. The defendant appealed, and we granted his application for direct appellate review. We must decide whether the Commonwealth was required to prove that the defendant intended to do the act that resulted in the apparent violation. We conclude that such proof was necessary on the evidence in this case. We reject the defendant's argument that his motion for a required finding of not guilty should have been allowed because the Commonwealth's proof of intent was insufficient. We agree, however, that the jury instructions were inadequate because no instruction was given on the intent element. Accordingly, the judgment of conviction must be reversed, and the jury verdict set aside.\\nThe Commonwealth presented the following evidence in its case-in-chief. On April 8, 1997, a judge in the Lowell Division of the District Court Department granted Cheryl Ann Tremblay a one-year extension of a G. L. c. 209A protective order against the defendant. The protective order, among other restrictions, prohibited the defendant from coming within one hundred yards of Tremblay. The defendant, accompanied by another former wife, Sandra Smith, his son (Jeffrey), and Jeffrey's girl friend, Sabrina Pedro, was present in court when the extension was granted. After the hearing, Tremblay, accompanied by her mother, left the court room and walked to the court clerk's office to obtain a copy of the protective order. While they were there, Smith, Jeffrey, and Pedro entered the clerk's office. Tremblay obtained a copy of the protective order, retrieved a can of mace from the court house security desk, and left the building with her mother.\\nAs Tremblay and her mother were walking toward the parking garage where the mother's car was parked, they heard a car' across the street, approximately twenty feet away, \\\"revving\\\" its engine. Jeffrey was driving this car with the defendant in the front passenger seat. Tremblay and her mother made direct eye contact with the defendant. They continued walking toward the parking garage, and when they reached a crosswalk, they saw the same car with the defendant inside, now closer and still \\\"revving\\\" its engine. Tremblay and her mother waited to cross the street in the company of two men (for protection). When they were almost across the street, the car containing the defendant and his son drove by them with \\\"squealing tires\\\" and came within three feet of Tremblay. The car continued on to the parking garage and blocked the exit to the garage. There were other routes the car's driver could have taken to leave the court house area which would have avoided any encounter with Tremblay.\\nTremblay and her mother continued on to their car in the parking garage. After they entered the car, Sandra Smith walked up, knocked on the car window, and yelled, \\\"Cheryl, do not leave this parking garage; if you do he's going to ram your car. You'd be a damn idiot if you leave this parking garage; he is going to ram you.\\\" At that point, Tremblay telephoned the police.\\nThe defendant presented evidence in his case that he was still in the court house when the incident occurred, and that Tremblay and her mother had misidentified him as the passenger in the car, mistaking him for his son's girl friend. The evidence in the defendant's case also was sufficient to require the jury to consider whether the defendant, if found by them to have been the car's passenger, had any intent to come within one hundred yards of Tremblay. Put differently, the jury, if they rejected the defendant's misidentification claim, had to decide whether the defendant's son was the real perpetrator, with the defendant only passively present in the car and neither directing, nor acquiescing in, his son's conduct.\\n1. The defendant's trial counsel moved at the close of the Commonwealth's evidence for entry of a required finding of not guilty which the judge denied without argument. The defendant contends that, because he may have been unaware of what his son was doing, his conviction under G. L. c. 209A, \\u00a7 7, required at least minimal proof that he intended to do the act that resulted in the violation, and that the Commonwealth's proof was insufficient to warrant such a finding.\\nIn Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997), cert. denied, 118 S. Ct. 714 (1998), we considered the mens rea requirement necessary under G. L. c. 209A, \\u00a7 7, to prove a criminal violation of a c. 209A order. We rejected the argument made by the defendant that, in order to be convicted of violating a c. 209A order, the Commonwealth was required to show a \\\"manifest intent\\\" on his part to violate the order. Id. at 595. We stated that a violation prosecuted under G. L. c. 209A, \\u00a7 7, \\\"requires no more knowledge than that the defendant knew of the order,\\\" and that \\\"[w]e decline to read any additional mens rea requirements into the statute.\\\" Id. at 596-597. We went on in Delaney to discern no error in jury instructions which explained that a defendant may be convicted under G. L. c. 209A, \\u00a7 7, if it is shown that (1) a c. 209A order had been entered and was in effect when the alleged violation occurred; (2) the defendant knew about the order; and (3) he violated it by abusing the alleged victim. Id. at 595. The Delaney case sought to make clear that a violation of G. L. c. 209A, prosecuted under \\u00a7 7, does not require proof that the defendant actually intended to abuse the victim. We were not required in the Delaney case to consider the precise point raised in this case concerning a legitimate claim that a third party committed without the defendant's awareness an act which, if the defendant had committed it, would have been a criminal act.\\nA long-standing common law principle requires that, \\\" 'in the absence of specific words saying so,' it is not supposed 'that the legislature intended to make accidents and mistakes crimes.' State v. Brown, 38 Kan. 390, 393 (1888).\\\" Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982). This is especially so where the offense in issue calls for a severe penalty, in this case a possible penalty of up to two and one-half years of imprisonment. Id., and cases cited. See 1 W. LaFave & A.W. Scott, Jr., Substantive Criminal Law \\u00a7 3.5(e), at 314 (1986) (\\\"Where the definition of a crime requires some forbidden act by the defendant, his bodily movement, to qualify as an act, must be voluntary. To some extent, then, all crimes of affirmative action require something in the way of a mental element \\u2014 at least an intention to make the bodily movement which constitutes the act which the crime requires.\\\" [Footnote omitted.]) In this case, the jury could have found that the defendant was aware of the protective order, but that the Commonwealth failed to prove that he intended that the car take a route that might violate the order. Where the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation. Accordingly, in those comparatively rare situations where a third party is involved in the act that results in the violation, to obtain a conviction under G. L. c. 209A, \\u00a7 7, the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order. We reaffirm the principle enunciated in Delaney that, in order to convict a defendant of violating a c. 209A order, the Commonwealth is not required to show that the defendant intended to violate the order.\\nThe Commonwealth's evidence, considered under the governing standard, Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995), including reasonable and possible inferences that could be drawn by the jury from the circumstantial evidence, Commonwealth v. Gordon, 407 Mass. 340, 344 (1990), was sufficient to warrant a finding that the defendant had the requisite state of mind. The jury could have found that the defendant knew of the protective order since he was present in the court room when it was entered. Further, the jury could have found that the defendant was a passenger in the car driven by his son; that there were other routes that his son could have taken to avoid encountering Tremblay; that Tremblay had direct eye contact with the defendant as the car driven by his son deliberately approached her from about twenty feet away; and that the car was purposely driven within three feet of her in a threatening manner. From these findings, the jury could have reasonably inferred that the defendant had an intent, or shared intent, to do an act that could result in a violation of the protective order. As a consequence, the jury properly could have found that the defendant had not acted accidentally or through\\ninadvertence, but had acted in a manner that constituted abuse. The defendant's motion for a required finding of not guilty was properly denied.\\n2. The judge instructed the jury substantially in accordance with Instruction 5.61 of the Model Jury Instructions for Use in the District Court (1995). This instruction is based on the instruction tacitly approved in Commonwealth v. Delaney, supra at 595. The judge did not instruct that the defendant had at least to intend to do the act that caused the violation. He was not asked to do so by the defendant's trial counsel, and counsel did not object to the given charge. In light of what we said in the Delaney case, we would not expect the jury to have been charged on intent (we also would not expect the defendant's trial counsel to have sought such an instruction or to have objected to the charge). Because the evidence fairly raised a question whether the defendant directed, assented to, or acquiesced in his son's conduct, the jury should have been instructed that the defendant could not be convicted under G. L. c. 209A, \\u00a7 7, in the absence of an intent on his part to commit the act that resulted in the violation of the protective order. The defendant may have been prejudiced by the absence of the instruction, and, as a result, the conviction must be reversed.\\n3. The hearsay testimony by Tremblay about what Sandra Smith said to her when Tremblay and her mother were about to leave the parking garage is subject to several objections, not the least of which is its expression of an opinion that lacks any foundation in the evidence. The testimony is not qualified as a proper spontaneous utterance. The testimony is to be excluded at any retrial.\\n4. The judgment of conviction is reversed, the jury verdict is set aside, and the case is remanded to the District Court for a new trial.\\nSo ordered.\\nTo convict the defendant in this case, the Commonwealth had to show that his conduct constituted \\\"abuse,\\\" which includes, among other consequences, \\\"placing another in fear of imminent serious physical harm.\\\" G. L. c. 209A, \\u00a7 1. See Commonwealth v. Gordon, 407 Mass. 340, 344 (1990).\\nThe defendant is represented by new counsel on appeal.\\nThe motion for a required finding of not guilty was renewed at the close of the evidence and after the jury returned their verdict.\\nThis intent requirement constitutes what commonly has been called \\\"general intent.\\\" This intent differs from \\\"specific intent\\\" which is defined in terms of a purposeful and focused intention on the part of a defendant to bring about a specific result. As was explained fully in Commonwealth v. Gunter, ante 259, 268-269 (1998), we do not think much is gained by adding the adjectives \\\"general\\\" and \\\"specific\\\" before the word \\\"intent,\\\" so we shall forgo doing so here, referring simply to \\\"intent\\\" in terms of the intent in issue.\\nIn considering the defendant's motion for a required finding of not guilty, we have not considered Tremblay's testimony concerning the statement of Sandra Smith (which was not objected to) warning her not to leave the parking garage because \\\"he is going to ram you.\\\" As we will discuss later in this opinion, the testimony was inadmissible hearsay, and is to be excluded at any retrial. In not considering the testimony, we have considered the rule that improper hearsay evidence, which has not been objected to, may be weighed with the other evidence and given evidentiary value, but, in a criminal appeal, any such objectionable evidence will be examined to ascertain whether the jury's consideration of it may have created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 562 (1987).\\nThe District Court should supplement its present model jury instruction to cover the issue discussed in this case.\\nBecause neither the judge nor the defendant's trial counsel could have anticipated the need for the instruction, we see no need to analyze the case under the standard of a substantial risk of a miscarriage of justice.\"}"

mass/32150.json

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+"{\"id\": \"32150\", \"name\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester\", \"name_abbreviation\": \"Sears v. Mayor & Aldermen of Worcester\", \"decision_date\": \"1902-01-03\", \"docket_number\": \"\", \"first_page\": \"288\", \"last_page\": \"289\", \"citations\": \"180 Mass. 288\", \"volume\": \"180\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:51:39.637779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester.\", \"head_matter\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester.\\nWorcester.\\nNovember 20, 1901.\\nJanuary 3, 1902.\\nPresent: Holmes, C. J., Knowlton, Lathbop, Hammond, & Loring, JJ.\\nCertiorari. De minimis non curat lex.\\nA writ of certiorari will not be issued to quash the levying of a betterment assessment on the ground that it exceeds one half of the adjudged betterment in the case specified by the amount of half a cent.\\nPetition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Worcester in levying certain betterment assessments on land of the petitioner for the widening of West Boylston Street in Worcester, filed May 12, 1900.\\nThe case was heard by Holmes, C. J., who, at the request.of the petitioner, reported it for the full court as follows:\\n\\u201cThe petitioner wished to offer evidence that West Boylston street was not substantially completed, but I ruled that in this proceeding I could not go behind the record set out in the answer. I also ruled that the assessment was levied in time, and that it was not void because it exceeded one half of the adjudged benefit in the case specified by one half of one cent, and ordered the petition dismissed.\\u201d\\nThe petitioner alleged exceptions, of which the only one argued related to the ruling last stated.\\nG. W. Wood O. H. Wood, for the petitioner.\\nA. P. Pugg, for the respondents.\", \"word_count\": \"518\", \"char_count\": \"2936\", \"text\": \"Lathrop, J.\\nThis is a petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Worcester in making an ' assessment for street betterments, under the Pub. Sts. c. 51, \\u00a7 1.\\nWhile several questions were presented to the Chief Justice of this court, and are before us, on his report, the only one argued by the petitioner is an exception to the ruling that the assessment was not void because it exceeded one half of the ad judged benefit by one half of a cent. The other questions we regard as waived.\\nWe are of opinion that the ruling was right. As was said in ,Stone v. Boston, 2 Met. 220, 228: \\\" A petition for certiorari is addressed to the sound discretion of the court. It is not to be granted for the mere purpose of enabling a party to avoid the proceedings of an inferior tribunal, for technical errors. It must appear that manifest injustice has been done to the petitioner.\\\" See also Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491, 496; Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212; Blake v. County Commissioners, 114 Mass. 583, 586; Lowell v. County Commissioners, 146 Mass. 403, 412; Haven v. County Commissioners, 155 Mass. 467 ; Devlin v. Dalton, 171 Mass. 338, 341.\\nIt cannot be said in this case that manifest injustice has been done the petitioner. In the language of Chief Justice Gray, in Workman v. Worcester, 118 Mass. 168, 175: \\\"A case can hardly be imagined which would more imperatively call for the application of the maxim de minimis non curat lex.\\\"\\nPetition dismissed.\"}"

mass/3454407.json

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+"{\"id\": \"3454407\", \"name\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company\", \"name_abbreviation\": \"Coffey v. West Roxbury Trap Rock Co.\", \"decision_date\": \"1918-01-05\", \"docket_number\": \"\", \"first_page\": \"211\", \"last_page\": \"213\", \"citations\": \"229 Mass. 211\", \"volume\": \"229\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:18:44.996059+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company.\", \"head_matter\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company.\\nSuffolk.\\nDecember 6, 1917.\\nJanuary 5, 1918.\\nPresent: Rugg, C. J., Braley, Crosby, Pierce, & Carroll, JJ. \\u2022\\nNegligence, In blasting. Evidence, Circumstantial.\\nIn an action against a corporation that had been engaged in blasting for the construction of a sewer for alleged damage to the plaintiff\\u2019s house by an explosion, if there is evidence that the defendant had been using dynamite, that the explosion took place where the sewer was in process of construction and that there was no other blasting in the vicinity at the time, that the explosion was unusual and extraordinary and that the plaintiff\\u2019s building was shaken and the walls and ceilings cracked, and if there also is evidence that with a proper blast, properly set, there would be no cracking of walls in the adjoining premises, the case is for the jury, who would be warranted in finding that the explosion occurred in the sewer that was being constructed by the defendant and that the defendant was careless in doing the blasting.\\nTort against a corporation engaged in constructing a sewer in Judson Street in the part of Boston called Roxbury for damage done on May 15, 1915, to the plaintiff\\u2019s house numbered 28 on Judson Street alleged to have been caused by negligent blasting by the defendant. Writ dated October 20, 1915.\\nIn the Superior Court the case was tried before Brown, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:\\n\\u201c1. That upon all the evidence the verdict must be for the defendant.\\n\\u201c2. That there is no evidence sufficient to warrant the finding that the defendant, its agents or servants, were guilty of negligence in carrying on their blasting operations.\\n\\u201c 3. That there is no evidence to warrant the jury in finding that the defendant failed to take any precautions in the conduct of its blasting operations which should have been taken by any reasonable and prudent man engaged in and acquainted with such work under similar conditions.\\u201d\\nThe judge refused to make any of these rulings. He submitted the case to the jury, concluding his charge as follows: \\\"Now you are to take all the testimony, conflicting testimony, and find out who is telling the probable story, the reasonable story, the true story, and when you have determined that, why you have settled the difficulties in this case. If you find it was negligent blasting and it caused these cracks that the plaintiff complains of, then she is entitled to recover; if it was not negligent blasting or did not cause these cracks she cannot recover, that is all there in is the case.\\u201d\\nThe jury returned a verdict for the plaintiff in the sum of $550; and the defendant alleged exceptions.\\nC. H. Cronin, for the defendant.\\nC. W. Rowley, (W. M. Robinson with'him,) for the plaintiff.\", \"word_count\": \"996\", \"char_count\": \"5733\", \"text\": \"Carroll, J.\\nThe plaintiff was the owner of a house on Judson Street, Roxbury, which she alleged was injured by reason of the negligence of the defendant while engaged in blasting for a sewer. There was a verdict for the plaintiff.\\nThe plaintiff asserted that the blast occurred between \\\"7:30 and 8 A. M.\\\" on May 15, 1915. The defendant's witness testified that at this time it was engaged in concreting; that no blasting ever was done before eight o'clock in the morning and that none was done in front of the plaintiff's house after May 8, 1915; that \\u2022no explosion occurred in the defendant's trench or about it on May 15; and that at no time did the earth side of the trench cave in or was the street disturbed by any explosion. It was agreed that the defendant contracted to build a sewer through Judson Street in front of the plaintiff's premises; that in order to do the work it was necessary to blast rock; and for this purpose dynamite was used, for which use the defendant had a license.\\nWhile the plaintiff did not show by any direct evidence that the explosion came from the defendant's trench, there was evidence that on the morning of May 15, before eight o'clock, there was an explosion which jarred the house, broke some glass, and cracked the ceilings; that the sewer was being constructed in Judson Street at the time; \\\"that the explosion appeared to come from the front of the house; that blasting had been going on in Judson Street at different times for about a month\\\" and that on this morning rocks were seen \\\"flying in the air from the direction of Judson Street over the roofs of the houses in the neighborhood of the plaintiff's house and toward his [the witness's] house.\\\" The president and treasurer of the defendant company testified that it \\\"did blasting in front of the plaintiff's house,\\\" and that he \\\"knew of no other blasting in the vicinity at the time.\\\"\\nWhile there is very little evidence to show that the blasting or the explosion which injured the plaintiff's house was caused by the defendant, we cannot say there is no evidence tending to establish that fact. The defendant had been using dynamite, the explosion came from the place where the sewer was in process of construction, and there was no other blasting in the vicinity at the time. Upon these facts the jury could find that the explosion occurred in the defendant's sewer.\\nApart from the circumstance that the explosion was unusual and extraordinary, there was evidence of the defendant's negligence. It was shown that with a proper blast, properly set, there would be no cracking of walls in the adjoining premises; and, if the plaintiff's building was shaken and the walls and ceilings cracked, as testified to by her, by a blast of the defendant, it would show carelessness of the defendant. The case was for the jury and we find no error of law.\\nExceptions overruled.\"}"

mass/3475956.json

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+"{\"id\": \"3475956\", \"name\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham\", \"name_abbreviation\": \"Williams v. Inhabitants of Dedham\", \"decision_date\": \"1911-01-05\", \"docket_number\": \"\", \"first_page\": \"412\", \"last_page\": \"416\", \"citations\": \"207 Mass. 412\", \"volume\": \"207\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:26:32.246199+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham.\", \"head_matter\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham.\\nSuffolk.\\nNovember 18, 1910.\\nJanuary 5, 1911.\\nPresent: Knowlton, C. J., Morton, Loring, Sheldon, & Rugg, JJ.\\nMunicipal Corporations, Liability to purchaser of defective tax title. Tax. Covenant.\\nA purchaser at a tax sale made by the collector of taxes of a town cannot recover from the town the amount paid by him for his tax deed containing the warranty required by R. L. c. 13, \\u00a7 43, upon showing that the title was defective by reason of an insufficient notice of the sale by the collector, unless such purchaser within two years after the date of the deed complied with the requirement of R. L. c. 13, \\u00a7 44, by offering by a writing given to the collector to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest in the premises.\\nWhether the liability to the purchaser at a tax sale, which is imposed on a town or city by R. L. c. 13, \\u00a7 44, in case it appears that, by reason of an error, omission or informality in the assessment or the sale, the purchaser has no claim upon the property sold, properly may be considered a liability upon the warranty of the collector of taxes that the sale has in all particulars been conducted according to law, which is required by R. L. c. 13, \\u00a7 43, to be inserted in all tax deeds, here was not passed upon, because, although the action was brought against a town on the warranty, no recovery was permitted on account of the plaintiff\\u2019s failure to make the offer required by R. L. c. 13, \\u00a7 44.\\nContract against the town of Dedham upon a covenant of warranty contained in a deed of the collector of taxes of that town dated January 21, 1908, under the requirement of R. L. c. 13, \\u00a7 43. Writ dated May 21, 1908.\\nIn the Superior Court the case was submitted to King, J., upon an agreed statement of facts, as follows:\\nOn January 17,1908, the tax collector of the town of Dedham sold the parcel of land described in the plaintiffs\\u2019 declaration to the plaintiffs at a tax sale, and in pursuance of such tax sale executed and delivered the deed, of which a copy was annexed to the plaintiffs\\u2019 declaration.\\nThe consideration paid by the plaintiffs was as stated in the deed, $54.60, which was the amount of the tax properly assessed upon the property, plus interest and the costs of collection.\\nThere was an alienation of the land in question on January 24,1905.\\nThe land was described in the notice of sale which the tax collector published preceding the sale, as set forth in the copy of the notice annexed to the plaintiffs\\u2019 declaration.\\nThe plaintiffs on August 11,1905, brought proceedings to enforce their title to the land, and in those proceedings it was decided by the Supreme Judicial Court for the Commonwealth that the description in the notice of sale did not comply with the law and that the plaintiffs acquired no title to the land by the deed. See Williams v. Bowers, 197 Mass. 565.\\nThe plaintiffs did not within two years after the date of the deed offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises, nor did the collector within two years after the date of the deed give notice to the plaintiffs to release any interest which they might have in the land under said deed and to receive from the town the amount paid therefor with interest at ten per cent or to file with the collector a statement that they refused to release such interest.\\nThe deed of the collector contained the covenant required by R. L. c. 13, \\u00a7 43, that the sale had in all particulars been conducted according to law, and the action was brought upon that covenant.\\nThe court was authorized to draw such inferences of fact as properly might be drawn from the foregoing agreed statement of facts.\\nThe plaintiffs asked the judge to make the following rulings:\\n\\u201c 1. In order to sue on the covenant of warranty it was not necessary for the plaintiffs within two years after the date of their deed to offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises.\\n\\u201c 2. The town is liable on the covenant.\\n\\u201c3. On the facts stated in the agreed facts judgment should be for the plaintiffs for $54.60 and interest from January 17,1903.\\u201d\\nThe judge ruled that there was a breach of the covenant, but refused to make any of the above rulings requested by the plaintiffs, and ruled, as requested by the defendant, that on all the agreed facts the plaintiffs could not recover, and that the plaintiffs, having failed to offer by a writing given to the collector to surrender and discharge their deed or to assign and transfer to the defendant all their right, title and interest in the premises within two years from the date of their deed, could not recover. He found as matter of law for the defendant on the agreed facts, drawing no inferences of fact therefrom.\\nThe plaintiffs alleged exceptions.\\nThe judge ordered judgment for the defendant. It did not appear that judgment was entered in accordance with this order, but it was stated in the record that the plaintiffs appealed.\\nR. I>. Swairn, for the plaintiffs.\\nJ. S. Soliday, for the defendant.\", \"word_count\": \"1640\", \"char_count\": \"9004\", \"text\": \"Kkowltob\\\", C. J.\\nThis is an action to recover from the defendant the amount paid by the plaintiffs for a tax deed of property described in the declaration, given by the collector of taxes of Dedham, it having been discovered that the title conveyed by the deed was defective by reason of an insufficient notice of the sale by the collector. The plaintiffs did not, within two years after the date of the deed, offer by writing given to the collector, to surrender and discharge their deed, or to assign and transfer to the town all their right, title and interest in the premises, as they might have done under the R. L. c. 13, \\u00a7 44. The question is whether they can recover without having made such an offer.\\nIt was held in Lynde v. Melrose, 10 Allen, 49, that, in the absence of a statute, a purchaser at a sale of real estate for taxes cannot recover from a city or town the amount paid, if the title proves to be invalid by reason of defects or informalities in the proceedings. The court said: \\\" He buys a title without warranty, except such covenants as he takes from the collector; and he must rely only upon them.\\\" These, in the form prescribed for a collector's deed, are the personal covenants of the collector, and not covenants of the town. The town is not liable by reason of them, except in the manner and to the extent declared by the statute. ,\\nThe first act on this subject was St. 1862, c. 183, \\u00a7 6, which required a collector to insert a covenant that the sale had \\\" in all particulars been conducted according to the provisions of law.\\\" It is then provided that, if it should appear that by reason of any error, omission or informality in any of the proceedings of assessment or sale, the purchaser had no claim upon the property sold, he might surrender and discharge his deed, and receive back from the city or town the amount paid by him. This was similar to the present statute, except that no limit of time was stated for the surrender and discharge of the deed. By the St. of 1878, c. 266, \\u00a7 1, this section was amended by adding a proviso that the purchaser should, within two years from the date of the deed, offer in writing to surrender and discharge the deed, or to assign and transfer to the town or city all his right, title and interest therein, as the collector should elect. This provision has been retained in all subsequent re-enactments. Pub. Sts. c. 12, \\u00a7 39. St. 1888, c. 390, \\u00a7 43, 44. R L. c. 13, \\u00a7 44. St. 1909, c. 490, Part II. \\u00a7 45.\\nThese provisions of the statute create the only liability of a city or town for any defect in the title conveyed by the deed of a collector of taxes. The last sentence of the section is as follows: \\\"Ho city or town and no treasurer or collector thereof shall pay or be liable for any amount due under the provisions of this section unless such statement is filed.\\\" R L. c. 13, \\u00a7 44. It is also said that the payment \\\" shall be in full for all damages for any defects in the proceedings or under the warranty in such deed. \\\" Upon payment the collector is relieved from liability on his warranty, and the city or town is also relieved in like manner, so far as the liability of the municipality under these sections, or by implication under the R L. c. 13, \\u00a7 70, may be considered a liability upon the warranty.\\nIn Spring v. Cambridge, 199 Mass. 1, is this language: \\\" By the terms of the statute it is only ' upon such surrender (of the deed) and discharge or assignment and transfer ' that such a city or town is required to pay.\\\"\\nWe are of opinion that the failure of the plaintiffs to avail themselves of their rights under this statute leaves them without a remedy against the town.\\nExceptions overruled ; judgment affirmed.\"}"

mass/3504179.json

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+"{\"id\": \"3504179\", \"name\": \"John D. Biggert vs. Charles L. Straub & others\", \"name_abbreviation\": \"Biggert v. Straub\", \"decision_date\": \"1906-10-16\", \"docket_number\": \"\", \"first_page\": \"77\", \"last_page\": \"80\", \"citations\": \"193 Mass. 77\", \"volume\": \"193\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:13:46.045430+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John D. Biggert vs. Charles L. Straub & others.\", \"head_matter\": \"John D. Biggert vs. Charles L. Straub & others.\\nWorcester.\\nOctober 3, 1906.\\nOctober 16, 1906.\\nPresent: Knowlton, C. J., Hammond, Loring, Braley, & Rugg, JJ.\\nJurisdiction. Equity Jurisdiction, To reach and apply equitable assets. Insurance, Life.\\nA liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another State and in the possession of a pledgee in this Commonwealth is such property within this Commonwealth as gives jurisdiction to proceed in rem. against it without personal service on the holder of the policy.\\nIn a suit in equity under R. L. c. 159, \\u00a7 3, cl. 7, to reach and apply in payment of a debt due to the plaintiff equitable assets of the defendant debtor within this Commonwealth, it appeared that a Massachusetts corporation had issued a policy of insurance on the life of the defendant debtor in the sum of $10,000 for a term of thirty-two years, promising to pay that sum to him or his assigns at the end of that period or in the event of his death before that time to pay it to his wife, that this policy had a cash surrender value of more than $3,000 and was in the possession of the defendant insurance company to which it had been delivered by the defendant debtor as security for an advance to him of about $1,200. Held, that the interest of the defendant debtor in the policy contingent on his survival of his wife was an equitable asset whose value could be ascertained by sale or by some other means within the ordinary procedure of the court and which therefore could be reached and applied under the statute.\\nBill in equity, filed January 26 and amended May 31,1906, against Charles L. Straub and Bertha G. Straub, his wife, both of Pittsburgh in the State of Pennsylvania and temporarily residing at Brooklyn in the State of Hew York, and the State Mutual Life Assurance Company, a corporation organized under the laws of this Commonwealth and having its usual place of business at Worcester in this Commonwealth, under R. L. c. 159, \\u00a7 3, cl. 7, to ascertain and determine the indebtedness of the defendants Straub to the plaintiff and to reach and apply to the payment of such indebtedness a certain policy of insurance issued by the defendant corporation upon the life of the defendant Charles L. Straub.\\nThe defendants Charles L. Straub and Bertha G. Straub were not served personally with notice of the suit either within or without the Commonwealth. There was service by publication by order of the court. These defendants appeared specially and moved to dismiss the bill. There was service on the defendant corporation, and a temporary injunction was issued which was served upon that defendant, enjoining it from paying over the cash surrender value of the policy in question to the defendants Straub.\\nIn the Superior Court the motions to dismiss were denied by Crashill, J., and the defendants Straub appealed. The judge, being of opinion that it was proper for the question as to jurisdiction raised by the motions to dismiss to be determined by this court before any further proceedings in the Superior Court, reported the case for such determination. If the motions should have been allowed, the bill was to be dismissed or such other disposition was to be made of it as might seem just. If the motions should have been denied, the defendants were to be allowed to answer and the case was to stand for hearing in the Superior Court.\\nO. T. Taiman, for the defendants Straub.\\nA. T. Johnson, A. H. Bulloch 8\\u00a1- J. M. Thayer, for the plaintiff.\", \"word_count\": \"1354\", \"char_count\": \"7663\", \"text\": \"Knowlton, C. J.\\nThis is a suit in equity in the nature of an equitable trustee process, brought under the R. L. c. 159, \\u00a7 3, cl. 7, to reach and apply in payment of a debt due, the plaintiff's property in the hands of the defendant life insurance company, belonging to the debtor, Charles L. Straub. This defendant and his wife, Bertha Gr. Straub, the other defendant, who seems to have an interest in the property, are not residents of this Commonwealth and the only service made upon either of them was by publication. They have filed motions to dismiss the suit for want of jurisdiction. The presiding judge overruled these motions and then reported for consideration by this court the questions arising upon them.\\nThe first question is whether a liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another State is property within this Commonwealth, such as to give jurisdiction to the court here to enter a decree in the nature of a judgment in rem against it. This .question is precisely the same, in its legal aspect, as the question whether such a liability, in a form that can be reached by trustee process in an action at law, gives jurisdiction for an action of the latter kind. This question has long been treated in this Commonwealth as requiring an affirmative answer. Ocean Ins. Co. v. Portsmouth Marine Railway, 3 Met. 420. Whipple v. Robbins, 97 Mass. 107. American Bank v. Rollins, 99 Mass. 313. National Bank of Commerce v. Huntington, 129 Mass. 444. Garity v. Gigie, 130 Mass. 184. In view of conflicting cases in different jurisdictions, it was considered at some length and decided in the affirmative in Rothschild v. Knight, 176 Mass. 48, and it was settled by decisions in the Supreme Court of the United States, which is the final arbiter in all controversies as to the validity \\u2022 and effect of judgments of one State in the courts of another State. Chicago, Rock Island & Pacific Railway v. Sturm, 174 U. S. 710, 716. King v. Cross, 175 U. S. 396, 399. Rothschild v. Knight, 184 U. S. 334. Blackstone v. Miller, 188 U. S. 189, 205, 206. The defendants' objection to the jurisdiction on this ground is not sustained.\\nThe only other question is whether the property is of such a nature as to come within the statute. The State Mutual Life Assurance Company issued a policy of insurance on the life of the defendant, Charles L. Straub, in the sum of #10,000, for the term of thirty-two years from May 7, 1895, promising to pay this amount to him or his assigns on May 7,1927, or, in the event of his death before that date, to pay it to his wife, the defendant Bertha Gr. Straub. It appears that this policy now has a cash surrender value of more than $3,000. It further appears that the policy is in the possession of the insurance company, which has a lien upon it for $1,281 advanced to the defendant Charles L. Straub.\\nThe policy is not before us, and the only knowledge we have of its terms or provisions is derived from the averments in the stating part of the bill. Nor do we know whether the proceedings that have been had, or the assignment to the insurance company which we infer has been made as security- for the advance of money, are such as leave the defendant Bertha G. Straub without further interest in the policy. From the averments of the bill the debtor, Charles L. Straub, appears to have, at the least, an interest in the policy whose value depends in great measure upon the contingency of his survival of his wife. If he has no greater interest, this question arises: Whether, in view of this contingency, the value of his interest \\\" can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.\\\" See R. L. c. 159, \\u00a7 3, cl. 7. On this question the case of Alexander v. McPeck, 189 Mass. 34, 44, is decisive. It was there held that a right whose value depended on a similar contingency could be reached under this statute, and that, for the purposes of the statute, the value could be ascertained by sale, or some other means within the ordinary procedure of the court.\\nMotions disallowed.\"}"

mass/3506284.json

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+"{\"id\": \"3506284\", \"name\": \"Commonwealth vs. M. F. McClusky\", \"name_abbreviation\": \"Commonwealth v. McClusky\", \"decision_date\": \"1890-05-10\", \"docket_number\": \"\", \"first_page\": \"488\", \"last_page\": \"490\", \"citations\": \"151 Mass. 488\", \"volume\": \"151\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:26:50.526306+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. M. F. McClusky.\", \"head_matter\": \"Commonwealth vs. M. F. McClusky.\\nMiddlesex.\\nMarch 31, 1890.\\nMay 10, 1890.\\nPresent: Field, Devens, W. Allen, C. Allen, & Holmes, JJ.\\nComplaint \\u2014 Appeal \\u2014 Nolle Prosequi.\\nIf a defendant who has been convicted upon a criminal charge in a district court takes an appeal to the Superior Court, the district attorney before the jury are impanelled may enter a nolle prosequi in the Superior Court, without the defendant\\u2019s consent, as in other cases.\\nAfter the entry of a nolle prosequi, if no step has been taken to reeall it or to revive tiie complaint, the defendant is entitled to a formal order discharging him from the complaint.\\nComplaint to the First District Court of Eastern Middle-sex, for embezzlement. The defendant was tried and found guilty in the district court, and appealed to the Superior Court. After the complaint was entered in that court, and before the jury were impanelled, the district attorney entered a nolle prosequi. The defendant thereupon filed a motion, in which he objected to the entry of the nolle prosequi, and asked to be \\u201c discharged from this complaint,\\u201d and \\u201c from further answering to the charge contained in this complaint.\\u201d Thompson, J. overruled the motion, and refused to order the discharge of the defendant; and the defendant alleged exceptions.\\nM. Coggan, for the defendant.\\nA. J. Waterman, Attorney-General, H. A. Wyman, Second Assistant Attorney General, for the Commonwealth.\", \"word_count\": \"875\", \"char_count\": \"5019\", \"text\": \"C. Allen, J.\\nIt is obvious that the defendant was put in peril by his trial in the district court, and while that peril continued, that is, during the trial in that court, it may be assumed that the refusal to prosecute further would have amounted to an acquittal. Commonwealth v. McCormick, 130 Mass. 61. Commonwealth v. Hart, 149 Mass. 7. But the defendant by his appeal from the judgment of the district court has availed himself of his right to have the trial in that court go for nothing, and to be tried anew in the Superior Court. By availing himself of this right, he placed himself in the sarde position as if he had not been tried at all, so far at least as respects the question now before us. The former judgment was set aside and vacated; he was discharged and free from the peril in which he formerly stood, and as one consequence the district attorney might enter a nolle prosequi with the same effect as if there had been no previous trial, and the general rule was applicable, that a nolle prosequi may be entered without the defendant's consent before the jury are impanelled. Commonwealth v. Scott, 121 Mass. 33. The case of Commonwealth v. Smith, 98 Mass. 10, is analogous, where it was. held that, after the verdict of guilty on an indictment had been set aside on a motion for a new trial, and before further proceedings in the case, the district attorney might enter a nolle prosequi against the objection of the defendant.\\nIt is plain that the effect of entering a nolle prosequi under such circumstances is not to acquit the defendant of the offence, so as to bar a new prosecution for it. Bacon v. Towne, 4 Cush. 217, 235. There has been some discussion elsewhere as to whether a nolle prosequi, after being once duly entered, can be recalled,. and fresh proceedings taken in the same case. The King v. Pickering, cited in Hardres, 83. The Queen v. Allen, 1 B. & S. 850. State v. Shilling, 10 Iowa, 106. Woodworth v. Mills, 61 Wis. 44. Bowden v. State, 1 Tex. App. 137, 145. See also 1 Bishop Crim. Proc. \\u00a7 1395, and Moulton v. Beecher, 1 Abb. N. C. 193, for ample citations of authorities. We need not enter upon that question, since no such course was attempted in the case before us. A nolle prosequi was duly entered, and it still remains of record. So far as this complaint is concerned, the district attorney declared, and still declares, that he will no further prosecute it. The defendant therefore should not be held further to attend to answer to it while this state of things continues, and he is entitled to be released and discharged from actual or constructive custody on this complaint; at the very least, until some step is taken to recall the nolle prosequi, and to revive the complaint. But the defendant has no right to decide this question for himself, and to depart without leave. Commonwealth v. Teevens, 143 Mass. 210. It follows that .he is entitled to a discharge by the court from any complaint which is at an end. The court should have granted that part of the defendant's motion which asked for an order that he be discharged from this particular complaint. Commonwealth v. Gould, 12 Gray, 171, 173. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136. Knott v. Sargent, 125 Mass. 95, 98. Commonwealth v. Bressant, 126 Mass. 246. Such a discharge is not equivalent to an acquittal, or to a general discharge from custody, provided there is any other charge or complaint against him. Brown v. Lakeman, 12 Cush. 482. Morgan v. Hughes, 2 T. R. 225, 231. Goddard v. Smith, 1 Salk. 21; S. C. 6 Mod. 261, 262, and 2 Salk. 456.\\n_Exceptions sustained.\"}"

mass/3625090.json

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+"{\"id\": \"3625090\", \"name\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\", \"name_abbreviation\": \"Lane v. Commerce Insurance\", \"decision_date\": \"2003-05-27\", \"docket_number\": \"No. CA010385A\", \"first_page\": \"295\", \"last_page\": \"302\", \"citations\": \"16 Mass. L. Rptr. 295\", \"volume\": \"16\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:54:29.705246+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\", \"head_matter\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\\nSuperior Court, Plymouth, SS\\nNo. CA010385A\\nMemorandum Dated May 27, 2003\", \"word_count\": \"5773\", \"char_count\": \"34208\", \"text\": \"Hely, J.\\nI. INTRODUCTION\\nThe plaintiffs wife was killed in a two-vehicle accident involving her car and a pickup truck driven by an intoxicated driver. In this action under G.L.c. 93A, \\u00a79, the plaintiff is entitled to recover damages from the other driver's motor vehicle liability insurer because the insurer violated G.L.c. 176D, \\u00a73(9)(f). The defendant insurer failed to make a fair settlement offer after the pickup driver's liability had become reasonably clear. The plaintiff is entitled to actual damages in the amount of $25,417, plus his reasonable attorney fees and costs for the Chapter 93A claim. Multiple damages are not warranted because there was no willful or knowing violation.\\nThe case was tried before the court without a jury. The court's findings are based on the more credible evidence and the reasonable inferences that the court has drawn from the evidence.\\nII. REASONABLY CLEAR LIABILITY\\nOn April 5, 1997, at about 6:51 p.m., Dolores Lane and Robert B. Senior were in a two-vehicle accident in Plymouth. Mr. Senior was driving west on Route 44 in a pickup truck. Route 44 in this area has two westbound lanes and two eastbound lanes with no barrier between the westbound and eastbound lanes.\\nMrs. Lane was driving a Ford Tempo. The front of Mr. Senior's truck crashed into the driver's door of Mrs. Lane's car. Mrs. Lane was entering Route 44 from Pilgrim Trail, a small side street leading out of a mobile home park. After stopping at the stop sign at the end of Pilgrim Trail, Mrs. Lane was attempting to cross the two westbound lanes of Route 44 and make a left turn into the eastbound lanes.\\nMrs. Lane was employed as a visiting nurse. She had been visiting an elderly client in the mobile home park.\\nMr. Senior was operating under the influence of alcohol and speeding at the time of the accident. His headlights were on. Mrs. Lane had on her parking lights but not her headlights. Mrs. Lane sustained multiple injuries and showed no vital signs after the crash. She was pronounced dead upon her arrival at the hospital.\\nMr. Senior had a motor vehicle insurance policy with Commerce Insurance Co. with bodily injuiy liability coverage up to a limit of $100,000. Within a few days of the accident, Attorney Gerard F. Lane, Mrs. Lane's brother-in-law, agreed to represent her family regarding their claims arising from the accident. After some telephone discussions with Commerce representatives, Mr. Lane sent an April 23, 1997, letter to Commerce. This letter asked Commerce whether they would pay the $100,000 limit and, if not, how much would they pay in settlement of the Lane family's wrongful death claim. Commerce replied that they needed to fully investigate the case, and they made no settlement offer at that time. On June 17, 1997, Attorney Lane filed in Superior Court a wrongful death action against Mr. Senior. The plaintiff was Eugene T. Lane, Mrs. Lane's husband and the executor of her estate.\\nCommerce performed a prompt and thorough investigation of the claim. Their investigation began in April 1997, as soon as they learned of the accident involving their insured. The investigation made it reasonably clear that a fair settlement of the claim would require payment of the $100,000 policy amount. The problem is that Commerce failed to offer the policy amount promptly after it became reasonably clear that this amount would be necessary for a fair settlement. Commerce did not offer the $100,000 policy amount to the Lane family until January 14, 1999. Commerce waited until after Mr. Senior was convicted in Superior Court on his indictments for motor vehicle homicide, operating under the influence and operating to endanger based on the accident with Mrs. Lane. This delay in offering the policy amount was an unfair claim settlement practice in violation of G.L.c. 176D, \\u00a73(9)(f), and G.L.c. 93A, \\u00a72.\\nThe wrongful death damages of Mrs. Lane's family substantially exceeded $200,000. Even if negligence by Mrs. Lane had been as much as fifty percent of the cause of the accident, a fair settlement would still have required an offer of the $100,000 limit. This was reasonably clear by July 31, 1997. Commerce's argu ment at the trial properly recognized that any damages award would exceed the policy limit, even with a maximum fifty percent reduction of damages based on comparative negligence. Commerce's trial argument concentrated on the basic comparative negligence liability issue, not on the amount of damages. Commerce argued that basic liability did not become reasonably clear until much later.\\nThe court finds that liability for the policy amount became reasonably clear by July 31, 1997. It was reasonably clear that a trial jury would find that comparative negligence by Mrs. Lane was less of a cause of the accident than the negligence of the intoxicated Mr. Senior. Based on the information that Commerce had, this was reasonably clear by July 31,1997. Some of the more important evidence items that Commerce had by this date are summarized below.\\nIII. IMPORTANT ASPECTS OF THE EVIDENCE KNOWN TO COMMERCE BY THE END OF JULY\\nA. Police Reports: Observations and Arrest of Robert Senior\\nWithin a week or two of the accident, Commerce had obtained the Plymouth Police reports. The Plymouth Police officers concluded that Mr. Senior was intoxicated or at least operating under the influence, and they so charged him.\\nMr. Senior was arrested at the scene on April 5 for operating under the influence and motor vehicle homicide by operating under the influence. The arresting officer, Officer Kevin J. Furtado, reported that he had a strong odor of liquor on his breath, slurred speech and glassy eyes. He was unsteady on his feet. Officer Furtado reported that Mr. Senior spoke very softly and was very hard to understand as he would always turn his head away when the officer asked him about the accident.\\nMr. Senior failed field sobriety tests at the scene. He could not recite the alphabet past the letter L. He was unsteady on his feet. He could not perform the heel-to-toe walk on a ten-inch wide, painted white line. He strayed off the line several times. Officer Furtado formed the opinion at the scene that Mr. Senior was under the influence of alcohol.\\nA second officer, Clifton Brant III, observed Mr. Senior stepping off the painted line three times during the field sobriety tests. Officer Stephen A. Viella also observed that Mr. Senior had slurred speech and a strong odor of an alcoholic beverage emitting form his person.\\nAt 7:40 p.m., Mr. Senior was booked at the Plymouth Police station by Lieutenant Arthur W. Budge, Jr. Mr. Senior refused to take a breathalyzer test. Lieutenant Budge observed that Mr. Senior had a flushed face, slurred speech and a strong odor of alcohol on his breath. Mr. Senior was unsteady on his feet at the police station. Lieutenant Budge also noted that Mr. Senior's eyes were watery, bloodshot and glassy. Lieutenant Budge's opinion was that Mr. Senior was intoxicated, and he included this in his report.\\nB. Beth Forst and Diana Keating\\nThe police reports contained statements from Beth Forst and Diana Keating, two witnesses who observed crucial events at the scene at the time of the accident. Mrs. Forst was driving east on Route 44 approaching Pilgrim Trail. She noticed Mrs. Lane's car edging out of Pilgrim Trail, stopping, rolling slightly, stopping, rolling slightly and stopping. Mrs. Lane's car had only its parking lights on. Mrs. Forst continued east and saw the defendant's truck traveling west on Route 44 \\\"very fast\\\" at a speed she estimated to be fifty or fifty-five m.p.h. She thought they would crash and they did. She heard the crash but did not see it. She felt her own car shudder when she heard the crash. She immediately called the police on her cell phone.\\nCommerce adjuster Cheiyl DeMelo took a recorded statement from Beth Forst on April 14, 1997. This statement was basically consistent with her statement to the police, but she added some important details. Mrs. Forst stated that Mrs. Lane's car did not have a directional signal on and she did not know if she was going to go east or west. As she went by Mrs. Lane's car at Pilgrim Trail she looked at her mirror and screamed, \\\"put your lights on, put your lights on.\\\" She said that Mrs. Lane was edging out and edging out and then proceeded \\\"to come out into the lane.\\\" Mrs. Forst slowed down and noticed the Senior vehicle. She said he \\\"flew right by me,\\\" \\\"whipped right by me.\\\" She stated that he was \\\"at least doing 50 to 55 mph.\\\" Mrs. Forst said that Mr. Senior was in the right travel lane heading west. When she looked again in her mirror she could see that they had collided. She said that there was no squealing of wheels. When she looked back there were no brake lights on.\\nMrs. Forst's statement to Ms. DeMelo described the lighting conditions as \\\"very dim,\\\" \\\"pitch black,\\\" and \\\"very, very dark.\\\" The road was dry.\\nDiana Keating reported to the police that just before the accident she stopped at Mark Drive, just southeast of the collision point on Route 44. She intended to attend to her own flat tire. She heard the crash. She looked up and saw Mrs. Lane bounce up and down in her seat. She ran to Mrs. Lane and gave her first aid. She detected no vital signs. Mrs. Keating was performing CPR on Mrs. Lane when EMTs arrived.\\nMrs. Keating gave a recorded statement to Commerce adjuster Louis Sroczenski on June 27, 1997. Mrs. Keating said that it was \\\"just before dusk\\\" at the time of the accident and \\\"still light but people were putting on their headlights.\\\" This contradicted Mrs. Forst on the lighting and strengthened the liability case against Mr. Senior. When asked about skidmarks, she said it was dark by that time.\\nMrs. Keating said she was about one hundred feet from the accident site. Mrs. Keating stated that she heard a bang and saw the impact of the front of the truck into the driver's door. Mrs. Keating estimated the truck's speed before the accident at forty-five m.p.h.\\nMrs. Keating stated that she did not know exactly but she thought that the majority of Mrs. Lane's car was in the right westbound lane. She said that it may have been pushed more toward the middle and into both westbound lanes in the impact.\\nAfter the collision, Mrs. Keating checked on Mr. Senior. He said he thought he was okay, but he had a bang on his chin. He seemed \\\"stable\\\" to Mrs. Keating. Mrs. Lane was in her car with her seat belt on. The bottom part of her body was on the driver's side and the top half was pushed over toward the passenger side with her head kind of over the headrest. Mrs. Keating was trained in CPR and respiratory therapy. She observed no vital signs when she tried to aid Mrs. Lane. Mrs. Keating thought Mrs. Lane was dead upon the impact.\\nMrs. Keating stated that at the scene Mr. Senior said to her, \\\"I killed her,\\\" or \\\"I think I killed her,\\\" or \\\"did I kill her?\\\" Mrs. Keating did not smell any alcohol on either Mr. Senior or Mrs. Lane. She described Mr. Senior's condition as \\\"in a state of shock because he hit his head\\\" and \\\"amazed at what had happened.\\\"\\nC.Mr. Senior's Statements to the Police\\nAt the scene, Mr. Senior told Officer Viella in slurred speech that he was driving the truck and, \\\"I was driving west when this car pulled out in front of me.\\\"\\nMr. Senior told Officer Furtado that he had had a couple of beers about an hour earlier. When the officer asked where, Mr. Senior would not answer. Officer Furtado told Mr. Senior he could smell alcohol on his breath. Mr. Senior then turned his head away when the officer asked further questions. Mr. Senior said he was going the speed limit. When the officer asked him what the speed limit was, he did not know. Officer Furtado reported that the posted speed limit for this part of the road is forty-five m.p.h.\\nMr. Senior told Officer Furtado that he did not see the vehicle that came out of Pilgrim Trail. He repeated that he just did not see the vehicle that he struck. Mr. Senior said that his own headlights were on.\\nDuring the booking, Mr. Senior told Lieutenant Budge that he had had \\\"a few beers.\\\" He said he did not want to say anything more until he spoke with an attorney.\\nD.Accident Scene and Vehicles\\nThe accident occurred at about 6:51 p.m., the time of Mrs. Forst's cell phone call to the police. Sunset was at 6:15 p.m. The road conditions were diy.\\nThe end of Pilgrim Trail where it meets Route 44 was fairly well lit by a street light on the north edge of Route 44, twenty-five feet east of the east edge of Pilgrim Trail. Two globe lights on short pillars marked the entrance to Pilgrim Trail. The globe lights made some contribution to the artificial lighting.\\nAccording to Officer Furtado's report, following the collision Mr. Senior's truck came to a rest in the left of the two westbound lanes on Route 44. Mrs. Lane's Tempo was facing south in the same westbound lane. The pickup had a plow mount on the front. The plow mount and the front center of Mr. Senior's truck crashed into the driver's door of Mrs. Lane's Tempo. Officer O'Hara reported that the truck's plow mount had \\\"physically passed through the drivers side door of the Tempo and was partially within the drivers compartment of the Tempo.\\\" The two vehicles were still impacted together after they came to rest.\\nAccording to the parties' stipulation, the police reports stated that Mr. Senior's truck pushed Mrs. Lane's Tempo fifty-one feet from the point of impact. There was a skidmark ending at one of the truck's rear tires at its point of rest. The skidmark was forty feet and five inches long. The truck's skidmark thus did not begin until after the point of impact.\\nMr. Senior was traveling on a slight upgrade on Route 44 as he approached the intersection. Apart from the lighting issue, there was along, unobstructed view of the Route 44 westbound lanes for both Mrs. Lane as she exited Pilgrim Trail and for Mr. Senior as he approached the intersection.\\nE.Mr. Senior's Blood Alcohol Level\\nMr. Senior was released from Plymouth Police custody shortly before 11.30 p.m on the night of the accident. He went to Jordan Hospital and had a blood tested at his own request. This blood test showed that his blood alcohol level at 11:30 p.m. was .091. Four and a half hours after the accident, Mr. Senior's blood alcohol was above the amount that would permit an inference that he was under the influence of alcohol. G.L.c. 90, \\u00a724. The parties stipulated that Commerce knew of this blood alcohol level within one week of the accident. Commerce learned of this from the office of Jack Atwood, Mr. Senior's criminal defense attorney.\\nIt is common knowledge that a driver with a blood alcohol level of .091 at 11:30 p.m. and who did no drinking after the accident must have had a much higher blood alcohol level four and a half hours earlier at the time of the accident. With or without a toxicology expert, Commerce reasonably should have known from the blood alcohol test and the police report observations that Mr. Senior was intoxicated well beyond the level of \\\"under the influence\\\" at the time of the accident.\\nThe blood alcohol test along with the police observations of Mr. Senior at the scene and at the station prevent any reasonable reliance on Mrs. Keating's failure to notice an odor of alcohol while she provided emergency aid to Mr. Senior and Mrs. Lane. Similarly, the self-serving statements of the waitress and Mr. Senior's drinking companion that he did not seem intoxicated would have little objective weight in the face of the blood alcohol test and the police officers' observations at the scene and at the booking.\\nF. Court Action\\nAs noted earlier, Attorney Lane filed the plaintiffs wrongful death suit against Mr. Senior on June 17, 1997. Attorney Lane moved for a real estate attachment against Mr. Senior. OnJune25,1997, aSuperior Court judge granted a real estate attachment against Mr. Senior in the amount of $500,000. Commerce thus knew by July that after a contested preliminary hearing the court had determined that the plaintiff had a likelihood of success, despite the comparative negligence issue. Commerce also knew that the judge viewed the likely damages to be at least $500,000.\\nCommerce received another piece of court news in June or July. On June 17, Mr. Senior was indicted by a grand jury for motor vehicle homicide, operating under the influence, and operating to endanger in the accident with Mrs. Lane. This was a formal determination by the grand jury and by the District Attorney's Office that there was probable cause to support the charges. This confirmed the original arrest determination by the Plymouth Police Department.\\nAttorney Atwood sent Commerce the grand jury transcript and autopsy report on July 24, 1997.\\nG. Accident Reconstruction Report\\nCommerce decided to hire Northeast Collision Analyses, Inc., to do an accident reconstruction report regarding this case. The Northeast report was completed on July 10, 1997, and received by Commerce by a few days later. Relying on the police reports, the Northeast report stated that the collision occurred entirely in the left westbound lane of Route 44 as Mr. Senior was traveling west in that lane. The Northeast report gave an opinion that Mr. Senior's truck was going approximately foriy-five m.p.h. prior to the collision. Making a series of additional assumptions, the Northeast report stated an opinion that Mr. Senior's truck was about 141 feet away from the Tempo at the beginning of perception and reaction and that this was beyond the point of no escape. The point of no escape was defined as the place and time beyond which the collision cannot be avoided.\\nBy the end of July Commerce's investigation file was quite extensive. With the receipt of the grand jury transcript and the accident reconstruction report, Commerce had everything it could reasonably expect in the way of a complete investigation.\\nIV. FURTHER FINDINGS ON THE TIMING OF A PROMPT, FAIR SETTLEMENT OFFER\\nAs long as they acted promptly, it was reasonable for Commerce to obtain a reconstruction analysis by an engineering firm before offering the policy amount. In general, four months (AprilJuly) is not an unreasonably long time to offer a fair policy limit settlement in a death case. It was not an excessive time in this case. There was powerful liability evidence against the insured, Mr. Senior, but there was also evidence of some comparative negligence by Mrs. Lane, particularly regarding the darkness, her unlit headlights and her pulling out across the two westbound lanes of Route 44 with Mr. Senior approaching.\\nAn insurer must be given reasonable latitude to fully investigate a serious case before offering the policy limit. The police reports stated that a State Police expert, Trooper Pina, would be doing an accident reconstruction report. Trooper Pina's report was either not completed or not made available to Commerce by July. In these circumstances it was reasonable for Commerce to obtain its own accident reconstruction report as part of a complete investigation. The plaintiffs insurance expert, Robert Hall, was not convincing when he dismissed the need for this step in the insurer's investigation.\\nBy the end of July, however, there was nothing left to reasonably wait for. Commerce received the Northeast report in mid-July and the grand juiy transcript in late July. Attorney Atwood had told Commerce early on that \\\"Mr. Senior will exercise his right of silence until the completion of his trial, criminal proceedings and/or exposure to incarceration.\\\" Ex. 2, p. 65.\\nA criminal conviction would dispel any reasonable doubt about Mr. Senior's civil liability. G.L.c. 176D, \\u00a73 (9)(f), however, imposes a fairly strict standard on a liability insurer. Under this statute, the insurer had a duty to make a \\\"prompt\\\" offer of a fair and equitable settlement once \\\"liability has become reasonably clear.\\\" The \\\"reasonably clear\\\" standard requires the settlement offer when liability becomes objectively clear, not when liability becomes certain. See Bobick v. U.S. Fidelity & Guaranty Insurance Co., 57 Mass.App.Ct. 1, 7 n. 6 (2003); Demeo v. State Farm Mutual Auto Insurance Co., 38 Mass.App.Ct. 955, 955-56 (1995). Liability may be reasonably clear even though some triable liability issue may remain. This is an objective test. Id. A violation of G.L.c. 176D, \\u00a73 (9)(f) does not require a finding of bad faith.\\nAnother way of stating the Chapter 176D issue is: was it reasonably clear that a reasonable trial jury would find Mr. Senior liable? Commerce had all the information it needed to answer this question by mid-July.\\nOnce a thorough investigation had been completed (in this case by mid-July), the insurer had a duty to objectively assess whether liability was reasonably clear. It would be reasonable to also allow Commerce until the end of July, but not longer, to review and analyze the full investigation and to decide to offer the policy amount.\\nWhat about the comparative negligence evidence? The obj ectively reasonable answer is that it would have been overpowered in the eyes of a reasonable jury by the evidence of Mr. Senior's intoxication, his speeding, and his failure to recognize the danger and to stop or take evasive action. The high level of Mr. Senior's intoxication, as documented by the hospital blood test, would have had great weight with a reasonable jury. He drove his truck while in a physical condition that impaired his perception, judgment, reaction time and driving skills. Mr. Senior's intoxication substantially reduced his ability to recognize the danger presented by Mrs. Lane's Tempo. His intoxication cut down the opportunities for stopping or avoiding the collision.\\nA pickup has a greater mass and a lesser maneuverability than an ordinary car. These factors decreased the stopping and avoidance capabilities and increased the risk of severe injury to someone struck. Mr. Senior disregarded these problems when drove his pickup in an intoxicated condition. He made things worse by excessive speed. Jurors readily understand the compounding effects of intoxication. Commerce should have understood them as well.\\nThere was unquestionably some degree of comparative negligence by Mrs. Lane in not having her headlights on and in pulling out across the westbound lanes with Mr. Senior approaching. See G.L.c. 89, \\u00a79. But in a comparison with an intoxicated and speeding pickup driver, a jury would be highly unlikely to find that she was more than fifty percent of the cause of her own death.\\nThe Commerce claims people handling this case and the attorneys they consulted were competent and experienced professionals. They acted with good faith and with sound and careful procedures. Commerce did have some chance of obtaining a favorable liability verdict, but it was a longshot. By the end of July the Commerce professionals should have recognized that it was a longshot. An ordinary defendant in a civil case has the right to holdout and take a longshot case to trial. The Legislature, however, has imposed a special duty on insurance companies. The \\\"reasonably clear\\\" liability standard of G.L.c. 176D, \\u00a73(9)(f), required Commerce to make a \\\"prompt\\\" offer of a fair settlement as soon as a complete investigation showed a reasonably clear likelihood that Mrs. Lane's negligence would not exceed that of the intoxicated Mr. Senior. That point was reached by the end of July 1997.\\nCommerce did not offer the $100,000 policy amount to the Lane family until January 14, 1999, after Mr. Senior was convicted in Superior Court on the motor vehicle homicide indictment. The failure to offer the policy amount between July 31, 1997, and January 14, 1999, violated G.L.c. 176D, \\u00a73 (9)(f). A violation of G.L.c. 176D, \\u00a73 (9)(f), is an unfair act in the business of insurance and therefore a violation of G.L.c. 93A, \\u00a72. See Van Dyke v. Saint Paul Fire and Marine Insurance Co., 388 Mass. 671, 675 (1983).\\nV. THE THALER-LAZARIS ISSUE\\nThe case of Thaler v. American Insurance Co., 34 Mass.App.Ct. 634, 643 (1993), does not affect the Chapter 93A liability or damages in the present case. During the brief life of the Thaler rule, once liability was reasonably clear an insurer was precluded from conditioning a fair settlement offer on obtaining a release from the insured. The Thaler rule was rejected by the Supreme Judicial Court in Lazaris v. Metropolitan Property and Casualty Insurance Co., 428 Mass. 502, 504 (1998). In the present case, Commerce chose to make no offer of the policy amount, with or without a release condition, until January 14, 1999. By that time, the Lazaris case again made it legally permissible for an insurer to condition an offer on obtaining a release from the insured. If Commerce had offered the policy amount on July 31, 1999, without conditioning the offer on a release by Mr. Senior, the plaintiff would have accepted the policy amount from the insurer and would have still pursued an additional amount from Mr. Senior. The cause of the Chapter 93A damages in this case was Commerce's delay in making any offer of the policy amount until January 14, 1999.\\nVI. DAMAGES AND ATTORNEYS FEES AND COSTS\\nThe first element of the Lane family's Chapter 93A damages is the loss of use of the $100,000 fair insurance settlement amount from August 1, 1997, until Commerce's January 14, 1999, written offer of the policy amount. Hopkins v. Liberty Mutual Insurance Co., 434 Mass. 556, 567 (2001); Kapp v. Arbella Mutual Insurance Co., 426 Mass. 683, 686 (1998); Clegg v. Butler, 424 Mass. 413, 424-25 (1997). A low-risk investment would have paid approximately six percent in annual interest during this period. The plaintiffs damages for loss of use of the money are $8750 ($6000 for the first year and $2750 for the additional five and a half months).\\nThe plaintiff argues that his attorney fees in obtaining the $100,000 insurance offer to settle the wrongful death claim amounts to an additional component of fair Chapter 93A damages. Attorney fees for the underlying tort case are not normally part of the actual damages in a case against an insurer under Chapters 93A and 176D. The attorney fees for successfully pursuing the Chapter 93A claim are recoverable by statute as a separate item, but they are not treated as part of the plaintiffs actual damages.\\nThe plaintiffs brother, Attorney Gerard F. Lane, originally represented the plaintiff in the Lane family's claim against Mr. Senior and Commerce for wrongful death damages. Attorney Lane represented the plaintiff from early April until September 1997. Bletzer & Bletzer, P.C., represented the plaintiff from that point on. Bletzer & Bletzer, P.C. has a one-third contingency fee agreement with the plaintiff. The plaintiff contends that his brother was representing him for no fee. For this reason he argues that the Commerce's delayed settlement offer caused him additional actual damages in the form of the one-third fee that he must pay to Bletzer & Bletzer, P.C.\\nThe evidence is less than crystal clear on whether Attorney Lane was serving for no fee, a reduced fee, or the customary one-third. The plaintiff testified that his brother had provided the family legal services in the past for no fee and that he expected that his brother would not charge a fee for his services in this case.\\nAttorney Lane did not testify, but brief excerpts from his deposition were introduced in evidence. Attorney Lane testified at his deposition that his brother \\\"hired me\\\" to try to settle the case and that \\\"we brought a civil action\\\" for wrongful death. He said that he was also \\\"engaged to settle the estate\\\" of Mrs. Lane. Attorney Lane testified at the deposition that his brother \\\"had a nerve taking the case away from me after I did all the work.\\\"\\nAttorney Lane was expecting some fee for his services in the insurance claim for the policy amount and in the wrongful death action. The evidence does not persuade the court that Attorney Lane would have taken no fee if Commerce had offered the policy amount by July 31,1997. Instead, the court finds from all the circumstances that Attorney Lane would be likely to have taken a reduced fee of half of the traditional one-third if Commerce had offered the $100,000 by the end of July.\\nDue to the powerful liability and damages evidence, Attorney Lane was expecting a prompt settlement, at least with the insurer. Had he obtained a prompt and fair settlement, it is probable that he would have accepted only a reduced fee from his family. If the litigation were to become difficult, Attorney Lane would not have been suitable to remain on the case due to his age, poor health and emotional involvement. As it turned out, the extended litigation made it necessary for the family to retain attorneys with more appropriate litigation capabilities. The difference between Attorney Lane's probable reduced fee and Bletzer & Bletzer's one-third fee is a fair component of the plaintiffs actual damages caused by the insurer's delay in making a fair settlement offer in this case. This was a cost \\\"directly resulting from the insurer's conduct.\\\" Kapp v. Arbella, supra. The amount of this component is $16,667.\\nThe plaintiff also argues that Commerce's delay in offering the insurance proceeds caused further damages by delaying his settlement with Mr. Senior. Mr. Senior did eventually reach a settlement agreement with the plaintiff to pay an amount in addition to the insurance policy limit amount. The Commerce delay did not cause any additional damages regarding the Senior settlement. Mr. Senior, upon the advice of his criminal defense attorney, was determined to \\\"exercise his right of silence until the completion of his trial, criminal proceedings and/or exposure to incarceration.\\\" Ex. 2, p. 65. If Commerce had offered the policy amount on July 31, 1997, it would not have significantly affected the timing or the amount of the plaintiffs settlement with Mr. Senior for additional payments.\\nFinally on damages, this is not a multiple damages case. There was no willful or knowing violation of Chapter 93A. There was only a collective misjudgment about the clear likelihood of a plaintiffs verdict.\\nThe plaintiff is also entitled under G.L.c. 93A, \\u00a79 (4) to recover his reasonable attorney fees and costs that are fairly attributable to the Chapter 93A claim and proportionate to the Chapter 93A damages. Linthicum v. Archambault, 379 Mass. 381, 388-89 (1979).\\nVIL ORDER\\nA judgment will enter for the plaintiff with damages in the amount of $25,417 plus twelve percent interest on this amount from April 3, 2001, the date the complaint was entered. Chapter 93A attorney fees and costs will also be included in to the judgment.\\nPlaintiffs counsel may submit an affidavit of reasonable attorney fees and costs attributable to the successful Chapter 93A claim. If the defendant's counsel objects to the amounts sought for attorney fees and costs, he may file a brief written opposition and a hearing request within two weeks of receipt of plaintiffs counsel's affidavit.\\nThe court fully adopts the parties' Stipulation of Facts (Ex. 1) as part of its findings.\\nCounsel for both parties well served their clients and the court with their professional presentations throughout the trial.\\nThe Plymouth Police reports received by Commerce in April may not have been complete, but Commerce did have complete reports from the Plymouth Police well before the end of July 1997.\\nThe parking lights on Mrs. Lane's Tempo light up on the sides of the car's comers as well as the front. See Ex. 8. This is a common feature in today's automobiles.\\nOf course headlights, had they been lighted, would have made the Tempo more visible to Mr. Senior, even if the beams had been pointing perpendicular to his direction of travel.\\nThe parties stipulated that the average elimination rate of alcohol from a person's body is .015 percent per hour beginning approximately thirty minutes after the last drink. The alcohol elimination rate is discussed in Commonwealth v. Senior, 433 Mass. 453 (2001), the decision in the appeal of Mr. Senior's conviction. Commerce did not need an expert witness to realize that Mr. Senior's blood alcohol level would have been much higher than .091 four and a half hours before the blood test.\\nThe complaint also named as defendants the owner of the establishment where Mr. Senior had been drinking and a manager for the owner.\\nAn unfounded aura of scientific certainty often accompanies accident reconstructionists and other forensic experts. The Northeast speed estimate depended on many assumptions that may or may not conform to the actual events of the accident. Carefully prepared opinions on speed or \\\"point of no escape\\\" would likely have been admissible, but they would not necessarily carry more weight than the observations of witnesses at the scene.\\nThe Northeast diagram, Ex. 25, seems to have misinterpreted the location of the skidmark as beginning 40.5 feet before the point of impact. At the scene on April 5, Officer O'Hara measured the skidmark as forty feet and five inches ending at the \\\"rear point of this same [Senior truck] tire'' at its point of rest following the collision. Ex. 2, p. 78. As mentioned earlier in this decision, the police report identified the point of impact as fifty-one feet before the truck's point of rest. The skidmark therefore did not begin until after the point of impact.\\nA stop sign at the southwest curved end of Pilgrim Trail (Ex. 26) also seems to be missing from the Northeast diagram.\\nCommerce received the plaintiffs second Chapter 93A demand letter on December 21, 1998. See Ex. 27. Commerce offered the policy amount to the plaintiffs attorney in telephone calls around that date. Commerce put its offer in writing to the Lanes'attorney on January 14, 1999. The issue of a release from Mr. Senior, the pending 93A claim and other issues added some complications to the negotiations. For this reason, the court will treat Commerce's detailed written January 14, 1999, letter as the first definitive offer of the policy amount.\"}"

mass/3777777.json

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+"{\"id\": \"3777777\", \"name\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio\", \"name_abbreviation\": \"Coombes v. Florio\", \"decision_date\": \"2007-12-10\", \"docket_number\": \"\", \"first_page\": \"182\", \"last_page\": \"214\", \"citations\": \"450 Mass. 182\", \"volume\": \"450\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T02:38:08.239296+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio.\", \"head_matter\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio.\\nNorfolk.\\nMay 8, 2007.\\nDecember 10, 2007.\\nPresent: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ.\\nWilliam P. Rose (.Peter L. Eleey with him) for the plaintiff.\\nEdward F Mahoney for the defendant.\\nCarl Valvo & John R. Hitt, for Professional Liability Foundatian, amicus curiae, submitted a brief.\\nMarsha V. Kazarosian, J. Michael Conley, & Joseph C. Borsellino, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.\\nOf the estate of Kevin Coombes.\", \"word_count\": \"13176\", \"char_count\": \"80122\", \"text\": \"By the Court.\\nThe judgment of the Superior Court granting the defendant's motion for summary judgment is reversed. The case is remanded to the Superior Court for further proceedings.\\nSo ordered.\\nSeparate opinions of Justice Ireland, with whom Justice Spina and Justice Cowin join; Justice Greaney; Chief Justice Marshall; and Justice Cordy.\"}"

mass/3796728.json

@@ -0,0 +1 @@
+"{\"id\": \"3796728\", \"name\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\", \"name_abbreviation\": \"Woods v. Barboro\", \"decision_date\": \"1939-02-14\", \"docket_number\": \"\", \"first_page\": \"51\", \"last_page\": \"53\", \"citations\": \"4 Mass. App. Div. 51\", \"volume\": \"4\", \"reporter\": \"Reports of Massachusetts Appellate Division\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:14:51.458484+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\", \"head_matter\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\\nEssex, ss. District Court Northern District of Newburyport\\nArgued November 29, 1938\\nOpinion filed February 14, 1939.\\nPresent: Pettingell & Wilson, JJ.\\nBurke \\u00a3 Crawshaw, for the Plaintiff.\\nT. F. Kelleher, for the Defendant.\\nT. S. Murray, for the Trustee.\", \"word_count\": \"578\", \"char_count\": \"3318\", \"text\": \"Pettingell, J.\\nAction of contract begun by trustee process in which the City of Newburyport was summoned as trustee. The defendant is Chairman of the Board of Licensing Commissioners of that city, receiving as salary the amount of Four Hundred Dollars. By agreement with the city authorities this salary has been paid to him in instalments of $16.66 every other week. It was conceded by the plaintiff at the oral argument, that this arrangement is binding upon the plaintiff and that she is entitled to claim only the instalments due and unpaid at the time of service of the writ. The trial justice found that the trustee is chargeable. The report states that it contains all the material evidence.\\nNo requests for rulings were made and we take the only issue in the case to be whether the trial justice was right in ruling that the trustee is chargeable. No question of amount is involved. G. L. (Ter. Ed.) G. 246, \\u00a739.\\nThe defendant is undoubtedly a public officer. Cook v. Springfield, 184 Mass. 247, at 249; Crocker v. Deschesnes, 287 Mass. 202, at 207, 208; McDonald v. Justices of the Superior Court, Mass. Adv. Sh. (1938) 211, at 213, 214; and if his compensation were fixed by statute, Walker v. Cook, 129 Mass. 577, at 578, 579; Attorney General v. Pelletier, 240 Mass. 264, at 296; Campbell v. Boston, 290 Mass. 427, at 429, 430; or was payable by the Commonwealth, McCarthy Co. v. Rendle, 222 Mass. 405, at 406; it would not be subject to attachment by trustee process. His compensation, however, depends upon G. L. (Ter. Ed.) C. 138, \\u00a77, which provides that for this office \\\"each city shall pay such salaries as the city council, subject to the approval of the mayor, may from time to time establish\\\". The pay of the defendant therefore is salary, see Hooker v. McLennan, 236 Mass. 117 at 119; not fixed by statute, or paid by the Commonwealth, but fixed and paid by the city.\\nCities and towns can be summoned as trustees. Adams v. Tyler, 121 Mass. 380, at 381. \\\"The action of a municipality in fixing the compensation of an officer or employee by vote or other appropriate proceeding renders it liable on the obligation so created\\\", Hooker v. McLennan, 236 Mass. 117, at 120. This is so even if the obligation is one entered into under your statutory authority or direction\\\", Hooker v. McLennan, 236 Mass. 117, at 120.\\nOn the authority of the last case cited, we are of opinion that the decision of the trial judge that the trustee is chargeable is not prejudicial error.\\nThe question of the exemption, if any, to which the defendant is entitled, although vigorously argued at the oral argument, is not raised by any ruling requested by the parties or made by the trial judge, and, therefore, not being before us, we do not decide it, although, in passing, it may be pointed out that it is difficult to see in what manner that which the statute explicitly calls \\\"salary\\\" can be interpreted to be \\\"wages for personal labor and services\\\".\\nNo prejudicial error appearing, the report is to he dismissed.\"}"

mass/380016.json

@@ -0,0 +1 @@
+"{\"id\": \"380016\", \"name\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\", \"name_abbreviation\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance\", \"decision_date\": \"1998-04-24\", \"docket_number\": \"No. SUCV 9504165\", \"first_page\": \"370\", \"last_page\": \"372\", \"citations\": \"8 Mass. L. Rptr. 370\", \"volume\": \"8\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:33:51.483283+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\", \"head_matter\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\\nSuperior Court, Suffolk, SS\\nNo. SUCV 9504165\\nMemorandum Dated April 24, 1998\", \"word_count\": \"1316\", \"char_count\": \"8652\", \"text\": \"Fremont-Smith, J.\\nThe above-captioned action arises out of a contract for errors and omissions insurance (hereinafter \\\"insurance contract\\\") provided by Utica Mutual Insurance Company (hereinafter \\\"defendant\\\") to Herbert A. Sullivan, Inc., J. Herbert Sullivan Insurance Agency, Inc., and Petroleum Insurance Agency, Inc. (hereinafter \\\"plaintiffs\\\"). In 1993, a customer of the plaintiffs commenced an action against them, alleging over-charges for premiums and negligent failure to procure environmental coverage. Defendant initially undertook a defense of this suit, but when an amended complaint was filed against the plaintiffs, defendant determined that the claims were not covered by the insurance policy, disclaimed coverage, and withdrew from the defense of the lawsuit.\\nThereafter, plaintiffs filed the instant suit against the defendant, alleging counts for a declaratory judgment (Count I), negligence (Count II), breach of contract (Count III), violation of G.L.c. 176D (Count IV), and violation of G.L.c. 93A, \\u00a79 and 11 (CountV).\\nFor the following reasons, defendant's motion is ALLOWED in part, and DENIED in part; plaintiffs' cross-motion is DENIED.\\nDISCUSSION\\nI. Breach of Contract (Count III)\\nPlaintiff claims that defendant breached its duty under the insurance contract by withdrawing its defense. However, it is well settled that the duty to defend is determined by a comparison of the allegations in the underlying complaint with the insurance contract. Liberty Mutual Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 331-32 (1992) (\\\"[T]he question of the . . . duly of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions . . .\\\").\\nIn the instant case, the insurance contract between the defendant and plaintiffs specifically limited coverage to losses arising out of \\\"negligent acts, errors, or omissions in the conduct of the insured's business . . .\\\" Moreover, the policy expressly excluded from coverage \\\"(a]ny dishonest, fraudulent, malicious, or criminal conduct committed or alleged to have been committed by . . . the insured,\\\" and \\\"(a]ny liability for money received by an insured for . . . premiums .\\\"\\nThe customer's amended complaint against the plaintiffs alleged premium overcharges, and fraudu lent acts of concealment by the plaintiffs, but did not allege negligence. As each of the allegations of the amended complaint was expressly excluded from coverage, defendant no longer had a duty to defend the lawsuit, and properly withdrew its defense. As such, defendant's motion for summary judgment concerning Count III is allowed, and plaintiffs' cross-motion as to this count is denied.\\nII.Negligence (Count II)\\nPlaintiffs also claim negligent representation by the attorneys appointed by the defendant to represent them before the filing of the amended complaint, and seek to impute this negligence to the defendant. Defendant counters by asserting that the retained attorney was an independent contractor, and, therefore, that any negligence by him is not attributable to the defendant.\\nMassachusetts case law has not directly addressed whether the negligence of an attorney who represents an insured may be attributed to the appointing carrier. However, in Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 F. 573, 581 (1st Cir. 1917), the Circuit Court of Appeals held that because the carrier had the exclusive control of the defense, including the right to choose the defending attorney and to direct him in the management of the case, the chosen attorney was the carrier's agent for whose negligent conduct the carrier was responsible. Although decided in 1917, this case appears to be the last and only word construing Massachusetts law on this issue.\\nIn the instant case, the insurance contract defines \\\"litigation expense\\\" as \\\"fees and disbursements charged by any attorney retained by us, or hired by you with our written consent, to defend a suit against you.\\\" (Emphasis added.) Additionally, the contract provides that \\\"[i]t is a condition precedent to the application of the insurance afforded herein that you shall . . . [c]ooperate with us in effecting settlement and in the conduct of suits, including attending hearings, giving depositions, securing and giving evidence, obtaining the attendance of witnesses, and in giving written statements to our representatives and meeting with our representatives for the purposes of investigation and/or defense.\\\"\\nBased upon these provisions, which Eire analogous to the policy provisions in Attleboro, supra, it is evident that the defendant retained control over the defense until it withdrew from the case. As in Attleboro, this court finds, as a matter of law, that the attorney appointed by the defendant for the plaintiffs' defense in the underlying action against it, was the defendant's agent, so that any negligence of the appointed attorney acting within the scope of his employment may be attributed to the defendant. Thus the defendant's motion for summary judgment as to Count II is denied. Furthermore, since any alleged negligence of the appointed attorney is disputed, plaintiffs' cross-motion as to Count II is also denied.\\nIII.Violation of G.L.c. 176D (Count IV)\\nPlaintiffs also seeks to recover pursuant to G.L.c. 176D. However, there is no independent private right of action under this statute. Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 75 (1977) (\\\"176D provides no remedy for individuals injured by unfair or deceptive insurance practices . . .\\\"). Therefore, defendant's motion for summary judgment is allowed as to Count IV.\\nIV.Violation of G.L.c. 93A (Count V)\\nPlaintiffs also bring claims for alleged violations of G.L.c. 93A, \\u00a79 and 11. An action may not be brought under \\u00a79 of the statute unless a demand letter has been delivered to the prospective defendant at least thirty days prior to the tiling of any action. In the instant case, plaintiffs have failed to demonstrate, or even allege, that they fulfilled this requirement. As such, defendant's motion is allowed concerning plaintiffs' claim under this section of the statute, and plaintiffs' cross-motion is denied. See Spilios v. Cohen, 38 Mass.App.Ct. 338, 342 (1995).\\nPlaintiffs further claim that the defendant's failure to provide coverage under the insurance contract, failure to continue its defense of the plaintiff in the underlying action, failure to provide a nonnegligence defense to the underlying action, and failure to renew the insurance contract with plaintiffs, each violated \\u00a711 of the statute.\\nIt has already been determined, however, that the defendant was justified in not continuing coverage in the underlying action after the amended complaint was filed. See Part I, supra. As for defendant's non-renewal of the insurance contract, the contract between the parties expressly indicated that defendant reserved the right not to renew, so that defendant's exercise of this right cannot be deemed a violation of c. 93A. Finally, it is well settled that negligence, standing by itself, does not amount to a violation of c. 93A. Glickman v. Brown, 21 Mass.App.Ct 229, 235-36 (1985). Therefore, even if defendant's defense of the underlying action, prior to its justified withdrawal, was negligent, such negligence does not constitute a violation of c. 93A, \\u00a711. As such, defendant's motion concerning plaintiffs count under this section of the statute is allowed, and plaintiffs' cross-motion is denied.\\nV.Declaratory Judgment (Count I)\\nPlaintiff also seeks a declaratory judgment stating that an actionable and justiciable controversy exists between defendant and plaintiff concerning whether the insurance contract covered a judgment for damages in the underlying action against plaintiffs, and/or whether it provided for the continued defense of the plaintiffs in that action. For the reasons set forth in Part I, supra, defendant's motion concerning this count is allowed, and plaintiffs' cross-motion is denied.\\nORDER\\nFor all of the foregoing reasons, it is hereby ORDERED that defendant's motion for summary judgment is ALLOWED as to plaintiffs' claims for declaratoiy judgment (Count I), breach of contract (Count III), violation of G.L.c. 176D (Count IV), and violation of G.L.c. 93A, \\u00a79 and 11 (Count V), but defendant's motion for summary judgment is DENIED as to plaintiffs' claim for negligence (Count II). Plaintiffs' cross-motion for summary judgment is DENIED as to all counts.\"}"

mass/3813786.json

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+"{\"id\": \"3813786\", \"name\": \"Nathan Fried vs. Jack Singer\", \"name_abbreviation\": \"Fried v. Singer\", \"decision_date\": \"1922-10-09\", \"docket_number\": \"\", \"first_page\": \"527\", \"last_page\": \"532\", \"citations\": \"242 Mass. 527\", \"volume\": \"242\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:17:45.169203+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nathan Fried vs. Jack Singer.\", \"head_matter\": \"Nathan Fried vs. Jack Singer.\\nSuffolk.\\nFebruary 16, 1922.\\nOctober 9, 1922.\\nPresent: Rugg, C.J., Braley, De Courcy, Crosby, Pierce, Carroll, & Jenney, JJ.\\nContract, Construction, Performance and breach, Of personal service. Evidence, Presumptions and burden of proof.\\nAt the trial of an action by an actor against one engaged in the theatrical business for damages alleged to have resulted from a discharge of the plaintiff in violation of a contract in writing, it appeared that the contract recited that the plaintiff, described as \\u201cthe Artist, \\u201d \\u201cstipulates that such services shall be rendered to the full and complete satisfaction of the C Amusement Company in its exclusive judgment in accordance with the terms and conditions of the franchise agreement granted by said C Amusement Company . . . with which conditions the Artist hereby agrees that he is familiar, and which it is agreed are to be regarded as a part hereof.\\u201d There was evidence that the C Amusement Company owned or controlled \\\"all the theatres in the eastern and western States where burlesque shows,\\u201d such as the plaintiff was engaged in, were given, and that the \\\"franchise agreement\\u201d of the defendant with it provided that the defendant\\u2019s production at all times should be produced in a manner satisfactory to the company \\u201cin its sole and exclusive judgment\\u201d and that the defendant would make such changes \\u201cin either the scenic production or equipment or the personnel\\u201d as the company might \\u201crequire from time to time, within twenty-one days after written notice of such requirements shall have been sent to him or his agent ... by registered mail or telegraph.\\u201d There also was evidence tending to show that the plaintiff worked in theatres controlled by the company and was paid therefor by the defendant until he was discharged, 'that his acting was well received by the audience, that no representative of the company or of the defendant expressed any dissatisfaction with his services, and that the company never gave written notice to the defendant to make any change in the personnel of the show as required by the franchise agreement. There was no contention of bad faith on the part of the defendant. Held, that\\n(1) The burden was upon the plaintiff to prove as a condition precedent to recovery that the services rendered by him were satisfactory to the C Amusement Company;\\n(2) Even if the services performed by the plaintiff were satisfactory to a reasonable man, if the C Amusement Company, acting in good faith, was dissatisfied with them, the plaintiff could not recover;\\n| (3) There was no evidence warranting a finding that the plaintiff\\u2019s services were rendered to the \\\"full and complete satisfaction of the . . . company in its exclusive judgment;\\u201d\\n(4) The general rule, that the burden is on an employer to allege and prove a justification for a dismissal, had no application to the contract in question.\\nContract for damages resulting from an alleged breach by the defendant of a contract in writing with the plaintiff for his employment as an actor. Writ dated September 26, 1919.\\nIn the Superior Court, the action was tried before Sanderson, J. There was evidence that the Columbia Amusement Company, referred to in the contract between the parties, owned or controlled \\u201call the theatres in the eastern and western States where burlesque shows are given,\\u201d and issued to producers what were called \\u201cfranchise agreements,\\u201d one of which was issued to the defendant and was referred to in the contract of the defendant with the plaintiff. Material provisions of the contracts between the plaintiff and the defendant and between the defendant and the Columbia Amusement Company, and other material evidence, are described in the opinion.\\nAt the close of the evidence, the defendant moved that a verdict be ordered in his favor, upon the grounds that, as a condition precedent to the plaintiff\\u2019s recovery, he must show that he performed the services contracted for to the satisfaction of the Columbia Amusement Company, and that he had offered no testimony which would warrant a verdict in his favor. The motion was denied. The judge gave to the jury, among other instructions, the following:\\n\\u201c1. As a condition precedent to the plaintiff\\u2019s recovery it is encumbent upon him to establish by competent evidence that the services rendered to the plaintiff were to the full and complete satisfaction of the Columbia Amusement Company.\\n\\u201c2. If the Columbia Amusement Company, acting in good faith, was not completely satisfied with the services rendered by the plaintiff to the defendant, the plaintiff cannot recover.\\n\\u201c3. The plaintiff was bound by the terms of the contract on which he relied to render his services to the entire satisfaction of the Columbia Amusement Company, and if the Columbia Amusement Company, acting in good faith, was not satisfied with the services rendered by the plaintiff, the defendant was not bound to keep him in his employ but could terminate the contract.\\n\\u201c4. The employment of the plaintiff by the defendant involves consideration of fitness, capacity, fancy, taste and sensibility, and judgment of the Columbia Amusement Company; and the exercise by the Columbia Amusement Company in good faith of its judgment is conclusive upon the plaintiff.\\n\\u201c5. When the contract provides that questions as to its performance shall be committed to a third person, his decision in case the contract provides that it shall be final, is binding on both of the contracting parties in the absence of fraud or such gross mistake as would imply fraud or a failure to exercise an honest judgment.\\u201d\\nThe jury found for the plaintiff in the sum of $2,180; and the defendant alleged exceptions.\\nThe case was argued at the bar in February, 1922, before Rugg, C. J., Braley, De Courcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.\\nJ. H. Blanchard, for the defendant.\\nE. M. Dangel, (D. Lasker with him,) for the plaintiff.\", \"word_count\": \"1911\", \"char_count\": \"11594\", \"text\": \"Crosby, J.\\nThe plaintiff and the defendant executed an agree ment in writing under which the defendant (who was engaged in the theatrical business) was to employ the plaintiff (an actor) for the season of 1919-1920, which it could have been found, consisted of not less than forty successive weeks.\\nParagraph \\\"Second: (a)\\\" of the agreement is as follows: \\\"The Artist [the plaintiff] agrees to render his exclusive services to the Producer [the defendant] for all performances in each week in which he shall be required to appear and that may be lawfully given, and the Artist stipulates that such services shall be rendered to the full and complete satisfaction of the Columbia Amusement Company in its exclusive judgment in accordance with the terms and conditions of the franchise agreement granted by said Columbia Amusement Company hereinbefore mentioned, with which conditions the Artist hereby agrees that he is familiar, and which it is agreed are to be regarded as a part hereof.\\\" The \\\"franchise agreement\\\" so called, in substance provides that the defendant's show shall at all times be produced in a manner satisfactory to the Columbia Amusement Company \\\"in its sole and exclusive judgment,\\\" and that the defendant will make such changes \\\"in either the scenic production and equipment or the personnel of his show as the . . . (Columbia Amusement Company) may require from time to time, within twenty-one (21) days after written notice of such requirements shall have been sent to him or his agent . . . by registered mail or telegraph.\\\"\\nThe plaintiff began his employment under the contract on or about August 18,1919, and continued to render services until September 13 following, when he says he was wrongfully discharged by the defendant. The defendant testified that he never gave the plaintiff any notice and never discharged him, but that he left voluntarily. A copy of the contract is annexed to the plaintiff's declaration.\\nAs the plaintiff's services were to be rendered to \\\"the full and complete satisfaction of the Columbia Amusement Company,\\\" the defendant's liability is conditional. To recover the plaintiff must prove that the services rendered by him were satisfactory to the amusement company. We cannot agree with his contention that the burden rested upon the defendant to show that the company was not satisfied in order to avoid liability. Whelton v. Tompson, 121 Mass. 346. Newton Rubber Works v. Graham, 171 Mass. 352. Farmer v. Golde Clothes Shop, Inc. 225 Mass. 260.\\nA contract like the one here in question where the employee is to render personal services and where considerations of the fancy, taste, sensibility and judgment of another are involved, must be performed in accordance with its terms; and if the amusement company or its representative, acting in good faith, was not satisfied with the services of the plaintiff, he cannot recover, and the judge so instructed the jury. McCarren v. McNulty, 7 Gray, 139. White v. Randall, 153 Mass. 394. Whittemore v. New York, New Haven & Hartford Railroad, 191 Mass. 392.\\nEven if the work performed would be satisfactory to a reasonable man, if the amusement company, acting in good faith, was dissatisfied with it, the plaintiff cannot recover. Williams Manuf. Co. v. Standard Brass Co. 173 Mass. 356. Farmer v. Golde Clothes Shop, Inc., supra.\\nIt is the contention of the plaintiff that he was wrongfully discharged by the defendant, and the jury undoubtedly so found, having returned a verdict in his favor.\\nThe question is whether there was any evidence to warrant a finding that the plaintiff's services were satisfactory to the amusement company. In the absence of such evidence, he would be barred from recovery for a breach of the contract, assuming that the defendant acted in good faith and was not actuated by some ulterior motive, of which there is no evidence. Williams Manuf. Co. v. Standard Brass Co., supra. Farmer v. Golde Clothes Shop, Inc., supra.\\nThe facts which could have been found from the plaintiff's testimony, that he worked in theatres controlled by the company and was paid therefor by the defendant until he was discharged, that his acting was well received by the audiences, that no representative of the company or of the defendant expressed any dissatisfaction with his services, that the company never gave written notice to the defendant to make any change in the personnel of the show as required by the franchise agreement, do not warrant an inference that the company was satisfied with the plaintiff's services. Although the burden rested upon the plaintiff to prove that the services were rendered to the \\\"full and complete satisfaction of the . . . Company in its exclusive judgment,\\\" we are unable to find any evidence to that effect.\\nThe rule that the burden is on the employer to allege and prove a justification for a dismissal, has no application to cases like the present, where the liability imposed by the contract is ^conditional and performance of it must be averred and proved or the want of performance . excused. Whelton v. Tompson, supra. Barker v. Metropolitan Life Ins. Co. 188 Mass. 542. Lee v. Prudential Life Ins. Co. 203 Mass. 299, 301. Fondi v. Boston Mutual Life Ins. Co. 224 Mass. 6. Marsch v. Southern New England Railroad, 230 Mass. 483, 490. Ballard v. Glohe & Rutgers Fire Ins. Co. 237 Mass. 34.\\nIn the opinion of a majority of the court, as the plaintiff failed to prove that he performed the services contracted for to the satisfaction of the amusement company, the motion of the defendant that a verdict be directed in his favor should have been granted.\\nExceptions sustained.\"}"

mass/3828311.json

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+"{\"id\": \"3828311\", \"name\": \"John Glendon vs. Edward G. Pyne & others\", \"name_abbreviation\": \"Glendon v. Pyne\", \"decision_date\": \"1931-06-01\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"531\", \"citations\": \"275 Mass. 528\", \"volume\": \"275\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:30:58.042557+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Glendon vs. Edward G. Pyne & others.\", \"head_matter\": \"John Glendon vs. Edward G. Pyne & others.\\nMiddlesex.\\nJanuary 19, 1931.. \\u2014\\nJune 1, 1931.\\nPresent: Rugg, C.J., Crosby, Pierce, Wait, & Sanderson, JJ.\\nJ. A. Daly, for the defendants.\\nJ. D. Graham, for the plaintiff.\", \"word_count\": \"694\", \"char_count\": \"3932\", \"text\": \"Wait, J.\\nAn enforceable contract between a real estate broker and his employer comes into existence when an agreement for employment is made between them and a consideration is paid; or. when an offer of employment is accepted by complete fulfilment of the terms of the offer on the part of the broker. The law requires as requisite to recovery that the broker either perform fully what he has been hired to do where a binding contract on present consideration has been made, or that he be the efficient cause of a completed sale when the contract is the outcome of an offer and acceptance by service. A liability to pay the broker's commission may also exist in consequence of unethical conduct of the employer which results in preventing full performance by the broker although the benefit which the employer sought from the broker's exertion is obtained by him. Elliott v. Kazajian, 255 Mass. 459, and cases there cited.\\nIn the case before us there is no evidence to support a finding of a binding contract upon a present consideration, nor of unethical conduct of the employer. The broker's right to recover turns upon whether the evidence, as matter of law, will support a finding that he was the efficient cause of a completed sale. The evidence taken most strongly in his favor would support findings as follows: The plaintiff, a real estate broker, was offered the chance of earning a commission of five per cent of the price obtained on the sale of a tract of land in whole or part, and was assured: \\\"you will get your commission if your customer buys the property, as we always take care of our brokers.\\\" The offer was not exclusive. His right to a commission was subject \\\"at all times to prior sale.\\\" No definite price was fixed for sale by him. He brought the attention of the party who eventually purchased to a part of the land and went upon that part with his prospective buyers and with one of the owners in an effort to make a sale. The prospective buyers then refused to purchase. They were not then shown the remainder of the land and no discussion of a purchase of the tract later sold to them took place. The plaintiff never obtained an offer from this customer, and did nothing further in the matter with the customer after this break in negotiations. He was advised by the defendants not to hurry his customers who needed time to raise money. Months afterward another broker, who testified that he had not known of the plaintiff's action, interested the same customer in a purchase of another part of the entire tract, a price was agreed upon with the owners, and a sale of that part was completed. A commission was paid in part to this second broker, and in part to an employee in the office of the owners.\\nThe mere fact that the ultimate purchasers were persons first interested in the owners' land by the plaintiff is not controlling. Ward v. Fletcher, 124 Mass. 224. Smith v. Kimball, 193 Mass. 582. Whitcomb v. Bacon, 170 Mass. 479. If they absolutely abandoned the original purpose to negotiate for the land and in good faith no longer dealt with the plaintiff but took up the matter afresh with another broker as an independent negotiation, the plaintiff, as matter of law, was not the efficient cause of the completed sale. Nichols v. Atherton, 250 Mass. 215. Delaney v. Doyle, 267 Mass. 171. The evidence does not go far enough to warrant finding the plaintiff to have been the efficient cause of the sale. The defendants' motion for a directed verdict in their favor should, therefore, have been granted. The ex ception to the refusal is sustained. The case has been fully tried, no injustice appears, and pursuant to G. L. c. 231, \\u00a7 122, the order will be\\nJudgment for the defendants.\"}"

mass/3837453.json

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+"{\"id\": \"3837453\", \"name\": \"Assessors of Quincy vs. Cunningham Foundation\", \"name_abbreviation\": \"Assessors of Quincy v. Cunningham Foundation\", \"decision_date\": \"1940-03-25\", \"docket_number\": \"\", \"first_page\": \"411\", \"last_page\": \"420\", \"citations\": \"305 Mass. 411\", \"volume\": \"305\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:12:47.932849+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Assessors of Quincy vs. Cunningham Foundation.\", \"head_matter\": \"Assessors of Quincy vs. Cunningham Foundation.\\nSuffolk,\\nNovember 5, 1937.\\nMarch 25, 1940.\\nPresent: Field, C.J., Lummus, Qua, & Dolan, JJ.\\nF. D. Coffman, for the Assessors of Quincy.\\nW. F. Farr, (E. D. Hanify with him,) for the taxpayer.\", \"word_count\": \"3261\", \"char_count\": \"19142\", \"text\": \"Field, C.J.\\nThis is an appeal by the board of assessors of the city of Quincy from a decision of the Board of Tax Appeals \\u2014 now succeeded by the Appellate Tax Board, St. 1937, c. 400 \\u2014 abating a local property tax assessed for the year 1935 upon certain real estate in the city of Quincy owned by the Cunningham Foundation \\u2014 herein referred to as the taxpayer \\u2014 on the ground that such real estate was exempt from taxation under G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third. By this statute \\\"real estate owned and occupied\\\" by \\\"literary, benevolent, charitable and scientific institutions . . . for the purposes for which they are incorporated\\\" is exempt from local taxation.\\nThe taxpayer in 1933 was incorporated as a charitable corporation under G. L. (Ter. Ed.) c. 180, which authorizes the formation of a corporation \\\"for any civic, educational, charitable, benevolent or religious purpose.\\\" See \\u00a7 2. By \\u00a7 9 of that chapter a corporation organized for any of the purposes mentioned in the chapter \\\"may hold real and personal estate . . . which estate . . . shall be devoted to the purposes set forth in its charter or agreement of association.\\\"\\nPertinent findings of fact made by the Board of Tax Appeals are as follows: The taxpayer's \\\"charter\\\" \\u2014 meaning its certificate of incorporation embodying the purposes set forth in its agreement of association, G. L. (Ter. Ed.) c. 180, \\u00a7 3 \\u2014 contained the following provisions: \\\"The purposes for which the corporation is formed are the following charitable objects: \\u2014 To improve and beautify the Town of Milton in this Commonwealth; to improve the libraries and schools of said town; to promote the teaching in said schools of sewing and other industrial arts; to promote the health of the inhabitants of said town by aiding parks, playgrounds and hospitals within said town and by making provision for the said inhabitants in the hospitals of other places; and in furtherance and not in limitation of the foregoing: . To pursue any of the above objects and to exercise any of the corporation's powers from time to time to the exclusion of the other objects and powers, all as in the opinion of the corporation or its Board of Managers may be beneficial in the accomplishment of its general purposes. . To join or cooperate with others in carrying out the above charitable objects and to aid, support or maintain the work of others in furtherance of said objects. . To acquire and hold real estate, buildings and personal property of all kinds, and to construct buildings.\\\"\\nThe real estate upon which the tax was assessed consisted of \\\"five contiguous parcels of unimproved real estate\\\" amounting \\\"in area to a little over forty-two acres. They are a portion of a single undivided tract of real estate of about one hundred ten acres, the remaining portion of which tract lies in the town of Milton. . . . [The taxpayer] acquired title to the entire tract as a single unit in February, 1933. Continuously from that date it has operated and used the entire tract as a unit. . . . The entire tract is open to the citizens of the town of Milton as a public park and recreation ground and is used and enjoyed by them in great numbers. . . . [The taxpayer] makes an effort to limit the use of the tract to the citizens of that town and has erected signs thereon to the effect that the land is private property restricted to the use of citizens of the town of Milton.\\\" On the portion of the tract lying in Milton there are several buildings including a gymnasium, a large stable and a hospital. \\\"The hospital is located within about five hundred feet of the Quincy portion of the tract. On the Milton portion of the tract, there are also two baseball fields, tennis courts, a swimming pool and a skating pond. . . . The rest of the entire tract, including the whole portion lying in the city of Quincy, is rough and rocky and is covered with pine trees. The underbrush is kept cleared away and there are paths thereon suitable for walking and for horseback riding, which are used for such purposes by those taking advantage of the facilities of the park. These paths are kept in good condition and repair. . In its present condition the portion of the tract lying in the city of Quincy serves also as a screen for the more developed portions of the tract lying in the town of Milton thus preventing the too close proximity of buildings and commercial uses, such as quarryings, which might be deleterious to the park itself and to the hospital.\\\"\\nThe assessors properly make no contention that the taxpayer is not a charitable corporation within the meaning of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, or that the real estate in question, if properly held by the taxpayer, was not occupied by it for the purposes for which it was incorporated within the meaning of that statute. See Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 384-386. See also Burbank v. Burbank, 152 Mass. 254, 255-256; Bartlett, petitioner, 163 Mass. 509, 514; Ware v. Fitchburg; 200 Mass. 61, 66; Richardson v. Essex Institute, 208 Mass. 311, 318. And see Wesleyan Academy v. Wilbraham, 99 Mass. 599; Massachusetts General Hospital v. Somerville, 101 Mass. 319; Emerson v. Milton Academy, 185 Mass. 414; Amherst College v. Assessors of Amherst, 193 Mass. 168; Wheaton College v. Norton, 232 Mass. 141.\\nThe assessors, however, contend that the real estate in question was not exempt under the provisions of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, (a) on the ground that ownership by the taxpayer of such real estate in the city of Quincy was not within the taxpayer's corporate power, and (b) on the further ground that the inhabitants of the city of Quincy derived no benefit from the use of such real estate, and that consequently the exempting statute, if construed to apply to such real estate, would violate the provisions of art. 10 of the Declaration of Rights, and of c. 1, \\u00a7 1, art. 4 of the Constitution of the Commonwealth. Neither of these contentions can be sustained.\\nFirst. It has been held that a \\\"corporation, which as against the State has no right to hold . . . [certain] property, is not in a position to claim a statutory exemption which is intended only; for a holding fully authorized by law.\\\" Evangelical Baptist Benevolent & Missionary Society v. Boston, 204 Mass. 28, 33. But in our opinion the holding by the taxpayer of the real estate in question was fully authorized by law. The provision in the \\\"charter\\\" of the taxpayer authorizing it to \\\"acquire and hold real estate\\\" is not in terms limited to real estate in the town of Milton or exclusive of real estate in the city of Quincy. Nor is there any such restriction in terms in G. L. (Ter. Ed.) c. 180, \\u00a7 9. The express limitation in the \\\"charter\\\" to the town of Milton is a limitation upon the charitable objects of the corporation, not upon the means by which such objects are to be accomplished. And the statutory limitation upon holding real estate is merely that the real estate \\\"be devoted to\\\" the purposes stated in the \\\"charter,\\\" that is, to the accomplishment of the charitable objects therein described. It cannot rightly be said, on the facts found by the Board of Tax Appeals, that the real estate in question was not devoted to these purposes or that it did not serve to promote them to such a degree that it was reasonable and proper for the taxpayer to hold such real estate. The facts found disclose that ownership by. the taxpayer of the real estate in question was fairly incidental to the taxpayer's main purpose in view of the benefits resulting to the park and hospital in the town of Milton from the ownership and occupation by the taxpayer of the real estate situated in the city of Quincy. See Richardson v. Massachusetts Charitable Mechanic Association, 131 Mass. 174, 176; Bradbury v. Boston Canoe Club, 153 Mass. 77, 78; Wheaton College v. Norton, 232 Mass. 141, 148-149, and cases cited. See also Old Colony Railroad v. Evans, 6 Gray, 25, 39; MacRea v. Selectmen of Concord, 296 Mass. 394, 398.\\nSecond. The stated purposes of the taxpayer's incorporation and the actual operations of the taxpayer (see Little v. Newburyport, 210 Mass. 414, 415; Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 384-385) are primarily, if not exclusively, for the benefit of the inhabitants of the town of Milton. Other persons benefit indirectly, if at all. This fact, however, is not fatal to the exemption.\\nWhile the exemption granted by G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, is from the local property tax, it is not granted by the city or town in which the property is situated, but by the General Court as the representative of the Commonwealth, which alone has the power to tax. \\\"Cities and towns have no inherent power to levy taxes. They can exercise only those powers to tax which have been delegated to them by the General Court as the representative of the Commonwealth. They can levy taxes only on the property and for the purposes established by the General Court acting within its constitutional limitations.\\\" Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47. See also West Boylston Manuf. Co. v. Assessors of Easthampton, 277 Mass. 180, 190; County of Middlesex v. Waltham, 278 Mass. 514, 517. The General Court has not delegated to the city of Quincy any authority to tax real estate owned and occupied by a charitable corporation for the purposes for which it was incorporated within the meaning of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third. That statute, providing a rule of State wide application of exemption from local taxation contains no express limitation of the exemption to real estate owned and used by a charitable corporation in such a manner that a benefit results to the inhabitants of the city or town in which such real estate is situated. And no such limitation can be implied unless without it the exempting statute would be unconstitutional.\\nThere is, however, nothing in the Constitution which requires such an implied limitation of the exemption. By c. 1, \\u00a7 1, art. 4, of the Constitution of the Commonwealth taxes on property must be \\\"proportional and reasonable\\\" within a taxing district which, with respect to local taxation is ordinarily a city or town. See Oliver v. Washington Mills, 11 Allen, 268, 274; Opinion of the Justices, 208 Mass. 616, 618; Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47. See also Opinion of the Justices, 220 Mass. 613, 620-621. But neither this constitutional provision nor the more general provisions of art. 10 of the Declaration of Rights precludes reasonable exemptions. Compare Opinion of the Justices, 270 Mass. 593, 599. Exemptions from the local property tax have been granted on various grounds, though the constitutionality of some of them has not been affirmed. Opinions of the Justices, 195 Mass. 607, 608-612; 270 Mass. 593, 599. Exemptions from the local property tax to avoid double taxation doubtless are constitutionally within reasonable limits, even though the inhabitants of the municipality in which the property is situated derive less immediate benefit from the substituted tax or excise than they would have derived from a local tax upon such property. See Opinions of the Justices, 195 Mass. 607, 611; 261 Mass. 523, 545. This has been held expressly with respect to the exemption from the local property tax of intangible property the income of which is subject to the State income tax, though in this instance there is specific constitutional authority under the income tax amendment (Amendment 44) to the Constitution of the Commonwealth for the income tax and for the exemption of such property from the local tax. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 51.\\nMoreover, by implication rather than by express statutory provision, real estate \\\"taken or held for a public use by one municipality within the territorial limits of another, or within its own boundaries, is not subject to taxation so long as it is actually devoted to a public use. The reason is that property held and used for the benefit of the public ought not to be made to share the burden of paying the public expenses.\\\" Collector of Taxes of Milton v. Boston, 278 Mass. 274, 277. See also Wayland v. County Commissioners, 4 Gray, 500; Somerville v. Waltham, 170 Mass. 160; Miller v. Fitchburg, 180 Mass. 32; County of Middlesex v. Waltham, 278 Mass. 514. The same result follows where the real estate is held by the municipality upon a trust for a public charitable purpose for the reason that such property \\\"supplies funds for a purpose which otherwise must be provided for by taxation, and so far tends to lighten the public burdens.\\\" Burr v. Boston, 208 Mass. 537, 539. And this implied exemption extends to real estate held by a public service corporation having the right to take such real estate by eminent domain for public purposes and using it for such purposes. \\\"It is the character of the use to which the property is put, and not of the party who uses it, that settles the question of exemption from taxation.\\\" Milford Water Co. v. Hopkinton, 192 Mass. 491, 495-497. See also Worcester v. Western Rail Road, 4 Met. 564. Compare Connecticut Valley Street Railway v. Northampton, 213 Mass. 54; Collector of Taxes of Boston v. Rising Sun Street Lighting Co. 229 Mass. 494. In some of the cases herein cited (see, for example, Miller v. Fitchburg, 180 Mass. 32) it is not apparent that any direct benefit would result from the use of the real estate to the inhabitants of the municipality in which it is situated. And any indirect benefit to them would be extremely remote, scarcely going beyond the benefit resulting to them from the greater welfare of other inhabitants of the Commonwealth. Wayland v. County Commissioners, 4 Gray, 500, 501. Yet exemption has not been denied on this ground.\\nThe exemption which the taxpayer seeks is not an implied exemption, as in the case of real estate held by a municipality or by a public service corporation for public purposes, but is an exemption expressly granted by statute. Its constitutional basis, however, is closely similar. The ground of the exemption is that the use of the exempted property alleviates \\\"some burden of government, by conferring benefits which would advance the public interest.\\\" Boston Symphony Orchestra, Inc. v. Assessors of Boston, 294 Mass. 248, 256. As was pointed out in the Opinion of the Justices, 195 Mass. 607, 609, since \\\"taxation of the people may be imposed\\\" for objects for which corporations described in the exempting statute are incorporated, the property of such corporations \\\"may well be exempted from taxation.\\\" See also Massachusetts General Hospital v. Belmont, 233 Mass. 190, 203. Whether there are purposes for which such corporations could be incorporated, but for which taxation could not rightly be imposed need not be decided. Clearly this is not true of the taxpayer's purposes. These purposes as stated in its \\\"charter\\\" and as actually carried out are for the benefit of \\\"the public at large or some part thereof, or an indefinite class of persons\\\" \\u2014 an essential element of a public charity. Old South Society in Boston v. Crocker, 119 Mass. 1, 23. Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 387. They are charitable in nature even though limited to benefiting the inhabitants of a single municipality (see Burbank v. Burbank, 152 Mass. 254, 256), and are within the scope of legitimate governmental activity. Real estate used for these purposes may, therefore, be treated as property used for public purposes and may be relieved, for that reason, of the burden of local taxation.\\nThe power of the General Court to exempt from the local property tax property used for public purposes clearly is not limited to cases where the benefit resulting to the public from such use is an exact equivalent of the burden imposed upon a taxing district or taxing districts by such exemption through increasing the rate of taxation upon other properties therein. Ordinarily the determination whether there was or was not such equivalence would be difficult, if not impossible. It would frequently, if not usually, be a matter upon which men of sound judgment would differ. Such a limitation upon the exemption, however, is not essential to its reasonableness. Similarly an exact equivalence between the benefits resulting to the inhabitants of a taxing district from such a public use and the burden imposed upon that district by the exemption is not essential. It has been said in other connections that \\\"Benefits conferred by government upon individuals or territorial subdivisions cannot be adjusted with precise equality in relation to the amounts exacted in way of taxation and the resources to meet such exactions\\\" (Duffy v. Treasurer & Receiver General, 234 Mass. 42, 53), and that \\\"it is not essential to a valid scheme of taxation that all the people benefit from it in precisely the same degree. No tax system has been devised whereby a perfect equalization of its burdens or an exact distribution of the benefits of expenditure of money raised by taxation can be accomplished.\\\" County of Essex v. Newburyport, 254 Mass. 232, 236. A State wide rule of exemption such as is laid down by the statute in question that is reasonable in its general application is not rendered unconstitutional as applied to a particular case by the fact that no substantial benefit from the use for public purposes of specific real estate results to the inhabitants of the municipality in which such real estate is situated as distinguished from other members of the public. It does not follow from the fact that in a single instance the burden imposed upon a municipality by the exemption from local taxation of specific real estate therein used for public purposes may be greater than the benefit resulting from such use to the inhabitants of that municipality that the operation of the general rule of exemption, as applied to all cases within its terms, does not result in a fair distribution of the burden of exemption of property used for public purposes, considered in its relation to the benefits resulting from the use for public purposes of property generally.\\nThe reference in the opinion in Boston Symphony Orches tra, Inc. v. Assessors of Boston, 294 Mass. 248 \\u2014 a case involving the question whether certain real estate in the city of Boston was exempt from local taxation \\u2014 to the absence of \\\"an equivalent or recompense to the city of Boston\\\" in the way of \\\"benefits which would advance the public interest\\\" (page 256) is not to be regarded as recognizing the limitation upon exemption for which the assessors contend in the present case.\\nIt follows that the real estate in question was exempt from local taxation, and that the taxpayer is entitled to an abatement of the tax assessed thereon. Abatement must be granted in the sum of $490.20.\\nSo ordered.\"}"

mass/3839989.json

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+"{\"id\": \"3839989\", \"name\": \"Norma Banna vs. Jeffrey Banna\", \"name_abbreviation\": \"Banna v. Banna\", \"decision_date\": \"2010-10-07\", \"docket_number\": \"No. 10-P-29\", \"first_page\": \"34\", \"last_page\": \"36\", \"citations\": \"78 Mass. App. Ct. 34\", \"volume\": \"78\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:11:36.767693+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norma Banna vs. Jeffrey Banna.\", \"head_matter\": \"Norma Banna vs. Jeffrey Banna.\\nNo. 10-P-29.\\nBristol.\\nJune 7, 2010.\\nOctober 7, 2010.\\nPresent: Lenk, Graham, & Wolohojian, JJ.\\nKatherine Godin for the defendant.\", \"word_count\": \"746\", \"char_count\": \"4385\", \"text\": \"Graham, J.\\nThe defendant argued, unsuccessfully, in the District Court against the extension of an ex parte abuse prevention order issued pursuant to G. L. c. 209A, which required him to refrain from abusing the plaintiff, his sister. On appeal, he contends that the evidence was insufficient to support a finding of abuse as contemplated by the statute, and that the judge below deprived him of his constitutional right to due process and his statutory right to a hearing pursuant to G. L. c. 209A, \\u00a7 4, by extending the order for one year without conducting an eviden-tiary hearing.\\nBackground. On September 25, 2009, the plaintiff was granted an ex parte restraining order against the defendant, her brother and roommate. The plaintiff's affidavit in support of her application for the order provides, in full:\\n\\\"On or about Feb., 2009, the Defendant Jeffrey Banna, brother, [h]as been living in my parents ['] home. He has been very very verbally abusive and intimidating, slams doors continuously and through the night between 12:00 a.m. \\u2014 5:00 a.m. Swears in my facet,] calls me and my sister all kind of names. The last 2 days he exposed himself and terrorized me[,] slamming my mother's door and taking his towel off to show he had nothing on. I have to leave my home constantly because I'm afraid of him. He listens when I'm having a private conversation and turns up the volume of his TV and I can't speak or hear a thing.\\\"\\nOn this basis, she was granted an ex parte c. 209A order against the defendant.\\nOn October 8, 2009, a hearing was scheduled before the same judge to determine whether the order should be extended. At the hearing (both parties present), the judge simply asked the plaintiff if she wanted him to extend the order, and she said, \\\"Yes.\\\" This exchange with the defendant's counsel followed:\\nJudge: \\\"Counsel?\\\"\\nDefense attorney: \\\"Judge, . I had a chance to review the affidavit. In my opinion it's legally insufficient to sustain a 209A. It doesn't amount to physical abuse or imminent fear of serious physical harm. There's no allegation of sexual relations of any kind and based on the affidavit, I don't think the allegations are sufficient to sustain a 209A.\\\"\\nJudge: \\\"Thank you, counsel, I appreciate your argument. I disagree with you. One year date.\\\"\\nDiscussion. Pursuant to G. L. c. 209A, \\u00a7 3 and 4, a judge may impose certain orders, among others, requiring that a defendant refrain from abusing, refrain from contacting, or merely stay away from a plaintiff, upon a showing by a preponderance of the evidence that she is \\\"suffering from abuse.\\\" Iamele v. Asselin, 444 Mass. 734, 736 (2005). The alleged victim must establish facts that justify the issuance of an order. Ibid., citing Frizado v. Frizado, 420 Mass. 592, 596 (1995).\\nTo extend an abuse prevention order, the plaintiff must \\\"make a showing similar to that of a plaintiff seeking an initial order \\u2014 most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief, whether in the form of an original order or an extension of an order, is sought.\\\" Iamele v. Asselin, supra at 735. See G. L. c. 209A, \\u00a7 3; Frizado v. Frizado, supra. No presumption arises from the fact that a prior order has issued ; it is a plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief. See Jones v. Gallagher, 54 Mass. App. Ct. 883, 889 (2002) (an initial order \\\"expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from 'abuse' \\\").\\nThere was no evidence other than the affidavit before the judge at the extension hearing. The judge did not ascertain the current state of affairs as of the time of that hearing. Simply asking the complainant whether she wanted to extend the order was not enough. Because there was thus no basis on which the judge could determine whether the extension of the restraining order should be granted, the order must be vacated.\\nSo ordered.\\nhowever, \\\"[t]he judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire.\\\" Iamele v. Asselin, supra at 740.\"}"

mass/3845689.json

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+"{\"id\": \"3845689\", \"name\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others\", \"name_abbreviation\": \"Rothenberg v. Boston Housing Authority\", \"decision_date\": \"1957-03-28\", \"docket_number\": \"\", \"first_page\": \"597\", \"last_page\": \"601\", \"citations\": \"335 Mass. 597\", \"volume\": \"335\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:41:02.903676+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others.\", \"head_matter\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others.\\nSuffolk.\\nMarch 4, 1957.\\nMarch 28, 1957.\\nPresent: Wilkins, C.J., Ronan, Spalding, & Whittemore, JJ.\\nIsrael Bernstein, for the petitioners.\\nJohn C. Conley, for the respondents.\", \"word_count\": \"1253\", \"char_count\": \"6995\", \"text\": \"Wilkins, C.J.\\nThe trustees under two declarations of trust, who are now the petitioners, brought a proceeding in the Superior Court against the respondent Boston Housing Authority for the assessment of damages on account of the taking of certain land and buildings by eminent domain on July 28, 1955. Before trial the parties entered into a written agreement for judgment in the sum of $84,500, of which $25,000 was to be paid to a mortgagee and the balance of $59,500 to the petitioners. In the meantime the collector of taxes of the city of Boston notified the authority that the city held a lien on the premises for $5,624 for taxes and water rates computed to the date of the taking. G. L. (Ter. Ed.) c. 79, \\u00a7 44A, inserted by St. 1935, c. 189, as amended by St. 1936, c. 137. On April 20, 1956, execution in the sum of $59,500 issued in favor of the petitioners.\\nOn May 14, 1956, there was entered in the Supreme Judicial Court for Suffolk County this petition for a writ of mandamus against the authority and its members seeking an order for the payment of the judgment. G. L. (Ter. Ed.) c. 121, \\u00a7 26V, as appearing in St. 1946, c. 574, \\u00a7 l. On May 17,1956, the authority, after deducting $5,624, paid the petitioners $53,876; and counsel for the petitioners indorsed on the execution, \\\"The within execution never having been in the hands of an officer for service, the within execution is satisfied in full and may so be returned to court.\\\" The single justice ruled that the authority was entitled to deduct the $5,624, and ordered that judgment be entered dismissing the petition. From such a final judgment the petitioners appealed. G. L. (Ter. Ed.) c. 213, \\u00a7 ID, inserted by St. 1943, c. 374, \\u00a7 4.\\nAn appeal under c. 213, \\u00a7 ID, from final judgment in mandamus or certiorari is subject to the practice in equity. See, as to mandamus, Henderson v. Mayor of Medford, 321 Mass. 732; Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 392; Caires v. Building Commissioner of Hingham, 323 Mass. 589, 590; as to certiorari, Lawrence v. Commissioners of Public Works, 319 Mass. 700, 702; Feener Business Schools, Inc. v. Board of Collegiate Authority, 329 Mass. 170, 171-172. There is no report of the evidence, but there is a report of the material facts under G. L. (Ter. Ed.) c. 214, \\u00a7 23, as appearing in St. 1947, c. 365, \\u00a7 2. Hence, the report of material facts must be accepted as true where containing no inconsistent findings, and the question is whether the judgment was rightly entered on the facts found. Kennedy v. Shain, 288 Mass. 458, 459. Estey v. Gardner, 291 Mass. 303, 306. Macklin v. Macklin, 315 Mass. 451, 452, 454. Harpel v. Craig, 327 Mass. 229, 232. The requests for rulings were unnecessary and have no standing as such on appeal. Estey v. Gardner, 291 Mass. 303, 307-308. Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 393. National Radiator Corp. v. Parad, 297 Mass. 314, 319. Boston v. Dolan, 298 Mass. 346, 349. Gulesian v. Newton Trust Co. 302 Mass. 369, 372.\\nThe amount of the agreed judgment, making no reference to interest, must be taken to be the full amount of damages. This means that there can be added no interest for the interval between the date of the taking and the date of the judgment. King v. Springfield, 233 Mass. 592. Albrecht v. United States, 329 U. S. 599. United States v. Certain Land, 58 Fed. Sup. 305 (D. C. E. D. Mo.). United States v. 71,500 Square Feet, 69 Fed. Sup. 810 (D. C. S. D. N. Y.). Matter of Ittleman, 286 N. Y. 150. 36 A. L. R. (2d) 423. See First Baptist Society v. Fall River, 119 Mass. 95; Minot v. Boston, 201 Mass. 10.\\nWe perceive no reason, however, why there should not be interest from the date of the judgment, April 20, 1956, to the date of payment. The petitioners are claiming under G. L. (Ter. Ed.) c. 121, \\u00a7 26V, as appearing in St. 1946, c. 574, \\u00a7 1. The fact that the respondent is not the Commonwealth is a sufficient distinction of General Electric Co. v. Commonwealth, 329 Mass. 661. Compare C. & R. Construction Co. v. Commonwealth, 334 Mass. 232.\\nWe now consider the alleged error in the deduction of taxes. The petitioners are not precluded by the indorsement of payment in full on the execution from showing the actual amount received. Brown v. South Boston Savings Bank, 148 Mass. 300, 306. And an acknowledgment of satisfaction of a judgment indorsed upon an execution has been held to be invalid where made in consideration of the payment of a smaller sum than the amount due. Weber v. Couch, 134 Mass. 26. Smith v. Johnson, 224 Mass. 50. Lait v. Sears, 226 Mass. 119, 125. There was, however, no error, The collector gave notice pursuant to G. L. (Ter. Ed.) c. 79, \\u00a7 44A, inserted by St. 1935, c. 189, as amended by St. 1936, c. 137, and it then became mandatory that the taxes \\\"be deducted from the amount of such damages otherwise payable.\\\" Likewise there was no error in the amount. There could be no apportionment under G. L. (Ter. Ed.) c. 79, \\u00a7 12, as amended by St. 1953, c. 634, \\u00a7 l which provides that in certain circumstances \\\"the damages for the taking shall include an amount separately determined\\\" for taxes to be apportioned. As previously pointed out, the agreed judgment covered all the damages.\\nThe judgment is reversed. A new judgment is to be entered for the payment of interest on $53,876 from April 20, 1956, the date of the judgment, to May 17, 1956, and on that amount of interest from May 17, 1956, until payment is made. G. L. (Ter. Ed.) c. 79, \\u00a7 37.\\nSo ordered.\\n\\\"If real estate taken in whole or in part by eminent domain was at the time of said taking subject to any lien for taxes, assessments or other charges, which is extinguished by such taking, and if the collector of taxes of the town in which such real estate is located gives written notice of a claim of the amount covered by such lien to the body politic or corporate, on behalf of which such taking was made, prior to the payment of any award of damages for such taking or to the entry of judgment therefor, said collector shall be entitled, to be paid such amount before any payment of damages for such taking is made to any other party; and any amount so payable on account of such taxes, assessments or other charges shall be deducted from the amount of such damages otherwise payable.\\\"\\nSection 26V reads in part: \\\"The property or funds of a housing authority shall not be subject to attachment, or to levy and sale on execution, but if a housing authority refuses to pay a judgment entered against it in any court of competent jurisdiction, the supreme judicial court, sitting within and for the county in which the authority is situated, may, by writ of mandamus, direct the treasurer of such authority to pay such judgment. . . .\\\"\"}"

mass/3848440.json

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+"{\"id\": \"3848440\", \"name\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others\", \"name_abbreviation\": \"Orlov v. MacNeil\", \"decision_date\": \"1958-02-27\", \"docket_number\": \"\", \"first_page\": \"767\", \"last_page\": \"767\", \"citations\": \"337 Mass. 767\", \"volume\": \"337\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:12:12.226860+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others.\", \"head_matter\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others.\\nFebruary 27, 1958.\\nAngus M. MacNeil, pro se.\\nPhilip Cowin, for the plaintiffs.\", \"word_count\": \"223\", \"char_count\": \"1326\", \"text\": \"Appeal dismissed. Exceptions overruled. This is an action of contract in which the plaintiffs recovered judgment against the defendant Mac-Neil in the sum of $10,079.12, on which an indorsement of satisfaction in the sum of $7,959.40 was made. The defendant MacNeil filed a motion for orders for compliance with G. L. (Ter. Ed.) c. 235, \\u00a7 17, as amended by St. 1948, c. 113, which was denied. At the hearing on the motion no evidence as such was presented except an affidavit and the execution and papers in prior cases. The trial judge made the statement: \\\"Counsel for the defendant referred to proceedings in the instant case and another case in the Superior Court and a decision of the Supreme Judicial Court and argued therefrom that the judgment and judgment entered were satisfied in full; examination of the records referred to, in my opinion, does not warrant a finding or ruling that the judgment has been satisfied in full or the execution issued thereon. In consequence thereof, I deny the motion.\\\" The defendant MacNeil excepted and appealed. His bill of exceptions has been allowed. We shall dismiss the appeal. We consider the exceptions which on this record fail to show error.\"}"

mass/385142.json

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+"{\"id\": \"385142\", \"name\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others\", \"name_abbreviation\": \"New England Memorial Hospital v. Rate Setting Commission\", \"decision_date\": \"1985-03-15\", \"docket_number\": \"\", \"first_page\": \"296\", \"last_page\": \"305\", \"citations\": \"394 Mass. 296\", \"volume\": \"394\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:56:27.932225+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others.\", \"head_matter\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others.\\nSuffolk.\\nNovember 8, 1984.\\nMarch 15, 1985.\\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, & Lynch, JJ.\\nWilliam L. Pardee, Assistant Attorney General, for the defendants.\\nDavid S. Szabo (Eric E. Mulloy with him) for the plaintiffs.\\nRichard P. Ward & Wayne H. Scott for Brockton Hospital, Inc., & others, amici curiae, submitted a brief.\\nQuincy City Hospital.\\nThe chairman of the Rate Setting Commission, the Commissioner of Public Welfare, the Department of Public Welfare, and the Commonwealth.\", \"word_count\": \"3188\", \"char_count\": \"19552\", \"text\": \"Liacos, J.\\nThe plaintiffs (hospitals) challenge the validity of 114.1 Code Mass. Regs. \\u00a7 3.06 (1981) (the amended regulation), promulgated by the defendant Rate Setting Commission (commission), which established a reimbursement rate to hospitals under the Medicaid program. The hospitals sought to have the amended regulation declared void and to obtain Medicaid payments of which the regulation allegedly deprived them. A Superior Court judge granted the hospitals' motion for partial summary judgment on the issue of liability. Another Superior Court judge then entered a judgment declaring the amended regulation null and void, and ordered that new rates be established by the commission to grant reimbursement to the plaintiffs. We granted the commission's application for direct appellate review.\\nWe summarize the statutory framework within which the challenged amended regulation was enacted. The Medicaid program is a cooperative Federal-State program designed to provide medical services to the indigent. While participation in the program is voluntary, once a State chooses to participate, it has to comply with Federal statutory requirements. Harris v. McRae, 448 U.S. 297, 301 (1980). Participating States were allowed to set rates of reimbursement to Medicaid providers, but, prior to August 13, 1981, the rate methodology used was not effective unless approved by the Secretary of Health and Human Services (Secretary). In addition, approval by the Secretary of the State plan for medical assistance, which incorporated the rate methodologies, was required before the State would be eligible to receive any Federal funds. 42 U.S.C. \\u00a7 1396a (1976 & Supp. III 1979). The State plan had to meet various conditions as set forth in 42 U.S.C. \\u00a7 1396a(a)(l) et seq.; if the plan conformed, the Secretary, with certain exceptions, had to approve the plan. 42 U.S.C. \\u00a7 1396a(b).\\nUnder the Massachusetts regulatory structure, the commission establishes rates for payment to Medicaid providers, which include hospitals, G. L. c. 6A, \\u00a7 32; the Department of Public Welfare (DPW) sees that the program is administered in accordance with Federal law. See G. L. c. 118E, \\u00a7 4, 6. The contested amended regulation, 114.1 Code Mass. Regs. \\u00a7 3.06, was to be effective February 1, 1981. It changed the method by which the Commonwealth, under the Medicaid program, reimbursed the hospitals for patients who were on \\\"administratively necessary day\\\" (AND) status. An AND is a day that a Medicaid patient occupies an acute care hospital bed pending transfer to a different facility after a Professional Standards Review Organization has determined that the patient is no longer ill enough to require hospitalization in the acute care facility. See 106 Code Mass. Regs. \\u00a7 452.007 (1978). The patient requires only those medical services that can be administered in a lower level facility, such as a nursing home, but often no beds in such facilities are available. Hence, the acute care hospital continues to care for the patient and is reimbursed at the AND rate. The AND rate promulgated by the commission in 114.1 Code Mass. Regs. \\u00a7 3.06 contemplated reimbursement from February 1, 1981, at a flat rate of $70, representing the average rate for care rendered in skilled nursing facilities based in hospitals. This amended regulation was promulgated without prior approval by the Secretary because the DPW's position was that such prior approval was not required. The Secretary disagreed.\\nWhile this case was pending in the Superior Court, we were called on to give our views as to whether prior approval by the Secretary of the amended regulation was required under Federal law as it existed in February, 1981. In Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 21 (1983), we held that, under the former statute, 42 U.S.C. \\u00a7 1396a(a)(13) (D), the disputed regulation was invalid for the period February 1, 1981, to August 13, 1981, for lack of approval by the Secretary. We did not reach the question of the validity of the amended regulation subsequent to August 13, 1981 (the date the Federal statute was changed), as that issue was not before us. In this case, the motion judge, following the court's suggestion in Addison Gilbert, ordered damages for the period February 1, 1981, to August 13, 1981, to be set by determining the difference between the reimbursement rate of the amended regulation ($70 an AND) and the previous rate reimbursement formula. The commission does not challenge the judgment as it pertains to the period February 1,1981, to August 13,1981.\\nThe commission contends that its failure to obtain Federal approval of the contested AND rate under the previous Federal statute does not render the rate invalid from August 13, 1981, until a new system of hospital payment was instituted as of October 1, 1982. See St. 1982, c. 372. Prior to August 13, 1981, Federal law stated that a State plan for medical assistance must provide \\\"for payment of the reasonable cost of inpatient hospital services provided under the plan, as determined in accordance with methods and standards, . . . which shall be developed by the State and reviewed and approved by the Sec retary and (after notice of approval by the Secretary) included in the plan.\\\" 42 U.S.C. \\u00a7 1396a(a)(13)(D) (1976 & Supp. III 1979).\\nOn August 13, 1981, the section governing hospital reimbursement was replaced by a new section which required, in pertinent part, that a State plan for medical reimbursement must provide \\\"for payment . of the hospital . . . services provided under the plan through the use of rates . . . which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.\\\" 42 U.S.C. \\u00a7 1396a(a)(13)(A), as amended by \\u00a7 2173(a)(1) of the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357, 808 (1981). The commission argues that this change in Federal law eliminated any requirement of prior approval by the Secretary. While this is true, it is irrelevant to this appeal for the reason, as we explain, that the new Federal law substituted one process of Federal regulation for another, albeit more flexible, form of Federal regulation, and the defendant failed to comply with the new requirements.\\nThe legislative history indicates that the 1981 Federal amendment was intended to reduce the Secretary's regulatory role and to give the States greater flexibility in developing methods of payment. S. Rep. No. 139, 97th Cong., 1st Sess. 478, reprinted in 1981 U.S. Code Cong. & Ad. News 396, 744. Nevertheless, by its own terms, the statute still requires that participating States provide assurances to the Secretary, and that the Secretary find these satisfactory.\\nThe regulations promulgated by the Secretary, which implement the foregoing requirements as they were in effect in 1981, provide that the Medicaid agency must submit assurances \\\"whenever the agency wishes to make a significant change in its methods and standards for determining the rate.\\\" 42 C.F.R. \\u00a7 447.255(a) (1981). The agency must assure in part that (1) rates are reasonable and adequate to meet the costs of an efficient and economically operated provider, (2) rates are adequate to assure recipients access to inpatient hospital services of adequate quality, (3) the agency has made findings of (1) and (2) above, and (4) there is a provision for uniform cost reporting and periodic audits. 42 C.F.R. \\u00a7 447.252(c) (1981). In addition to the assurances, the agency must submit detailed information concerning the impact of any changes on different types of services. 42 C.F.R. \\u00a7 447.255(b) (1981). The Secretary has sixty days in which to act on these assurances, but, if no action is taken within that time period, the assurances are deemed to be accepted. 42 C.F.R. \\u00a7 447.256(a) (1981). A proposed change is effective on the date specified by the State agency in its assurances submitted to the Secretary, but in no event earlier than the first day of the calendar quarter in which the assurances are submitted. 42 C.F.R. \\u00a7 447.256(b) (1981).&*\\nThe judge found that the Department of Public Welfare never filed the formal \\\"assurances and related information\\\" required by the new Federal statute. The commission does not dispute this finding but argues, without citation of authority, that it was in \\\"substantial compliance\\\" with the new requirement of filing \\\"assurances and related information.\\\" We hold the commission's argument that it substantially complied with the regulations to be without merit. Our reading of the record, in particular the letter of October 28, 1981, from the Associate Regional Administrator, Division of Financial Operations, Health Care Financing Administration, United States Department of Health and Human Services, indicates that approval of the AND rate was conditioned on the submission of assurances and related information. These were never submitted; 42 U.S.C. \\u00a7 1396a(a)(13)(A) clearly requires that Medicaid agencies submit assurances for the Secretary's approval. The implementing regulations require such assurances in addition to requiring related information. The commission's failure to comply with the applicable statutory and regulatory scheme renders the disputed amended regulation invalid. The commission's failure to comply with these requirements defeated the purposes of the new Federal law.\\nWe turn now to the question of remedy. The commission has suggested, should we agree with the judge's conclusion on liability, that it now establish a new rate, meeting Federal criteria, for the period August 13, 1981, to October 1, 1982. Such an approach presents serious problems with respect to the current Federal statute discussed above and the regulations now in effect. Any substitute regulation promulgated by the commission would be subject to the assurances requirement of 42 U.S.C. \\u00a7 1396a(a)(13)(A). More important, 42 C.F.R. \\u00a7 447.256(c) (1983) limits the retroactive effect of a rate to the first day of the calendar quarter in which the agency submits assurances and related information. Thus, it would appear that this remedy is precluded by Federal law.\\nThe commission argues that continued use of the routine rate effective on January 31, 1981, would violate current Federal and State law. First, it contends that the routine rate fails to meet the provision of \\u00a7 1396a(a)(13)(A) that payment must be made through the use of rates \\\"which the State finds . . . are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities\\\" (emphasis supplied). The routine rates were never formally \\\"found\\\" by the State to meet the \\\"efficient cost\\\" standard of \\u00a7 1396a(a)(13)(A). Under the former statute, \\u00a7 1396a(a)(13) (D), the Secretary, however, did approve the routine rate as meeting the higher \\\"reasonable cost\\\" standard. \\\"Because the new 'efficient cost' standard is designed to lower the threshold of permissible reimbursement rates, rates properly approved under the reasonable cost standard will satisfy the new efficient cost standard.\\\" Alabama Hosp. Ass'n v. Beasley, 702 F.2d 955, 958 (11th Cir. 1983).\\nThe commission argues that the routine rate fails to satisfy another provision of \\u00a7 1396a(a)(13)(A): That rates provide, for AND patients, \\\"for lower reimbursement rates reflecting the level of care actually received (in a manner consistent with section 1395x(v)(l)(G) of [Title 42]).\\\" Section 1395x(v)(l)(G) (ii)(I) of 42 U.S.C. (a Medicare provision) provides that the rate for AND patients shall be the \\\"State-wide average rate per patient-day paid for services provided in skilled nursing facilities.\\\" The commission contends that the routine rate, based on the average cost of routine care in a hospital, is not consistent with the Medicare standard because it is unrelated to the Statewide average cost of care in nursing facilities.\\nThe language of \\u00a7 1396a(a)(13)(A) requires only \\\"consistency\\\" with the Medicare provision, not strict conformity. Moreover, the 1981 amendment reflects an effort to establish an AND rate which is lower than the acute care hospital rate, since prior to the 1981 amendments there was no Federal provision for a separate AND rate for Medicaid recipients. The routine rate, based on routine costs only (see note 6, supra), is lower than the usual acute care hospital rate and thus fulfils the statutory mandate. See 114.1 Code Mass. Regs. \\u00a7 3.06, 3.07 (1979). Accordingly, use of the routine rate does not violate Federal law.\\nAs to State law, the remedy is clear. In Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 26-27 n.13 (1983), we stated: \\\"Since the issue of the appropriate rate of reimbursement for the administratively necessary day patients has not yet been heard, and was not reported to us, we merely note that in an analogous New York case, the defendants were 'directed to recalculate the amounts owed to members of the plaintiff class under the previously approved reimbursement formula, and to pay the hospitals any additional money that was owing. ' Hospital Ass'n of N.Y. State, Inc. v. Toia, 577 F.2d 790, 793 (2d Cir. 1978), referring to Hospital Ass'n v. Toia, Medicare & Medicaid Guide (CCH) par. 27, 941 (S.D.N.Y. 1976).\\\" The motion judge ordered this formula to be adopted. This ruling is consistent with Addison Gilbert and our prior cases. Where no effective new rate has been established, the old rate remains in effect. See Massachusetts Gen. Hosp. v. Commissioner of Admin., 353 Mass. 369, 375-376 (1967). See also Senn Park Nursing Center v. Miller, 118 Ill. App. 3d 733 (1983).*\\nAccordingly, the judgment entered is to be modified to declare that the plaintiffs are entitled to reimbursement for the period commencing August 13, 1981, to October 1, 1982, on the basis of the difference between the $70 a day AND rate declared invalid and the routine care rate effective as of January 31, 1981, as though the latter rate remained in effect for the period in dispute. No \\\"new\\\" rate for this period need be promul gated by the commission. As modified, the partial summary judgment is affirmed. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.\\nSo ordered.\\nRegulation 114.1 Code Mass. Regs. \\u00a7 3.06 was published in Mass. Reg. 248, at 2-4 (February 12, 1981), and was subsequently codified in 114.1 Code Mass. Regs. (1981).\\nThe hospitals brought their action for declaratory relief under G. L. c. 231A and G. L. c. 30A, \\u00a7 7, and under G. L. c. 249, \\u00a7 5 (mandamus). They also sought the assessment of damages. Since their complaint challenges the validity of a regulation, the relief properly could be sought under G. L. c. 231A and G. L. c. 30A. See Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 25 (1983); Massachusetts State Pharmaceutical Ass'n v. Rate Setting Comm'n, 387 Mass. 122, 125-127 (1982).\\nThe motion for partial summary judgment related to counts I and VIII of the plaintiffs' amended complaint. Somewhat inconsistently, the motion sought a partial summary judgment as to liability on those counts with damages to be determined later, but then went on to seek declaration of a fixed rate of reimbursement based on the difference between the reimbursement rate of the allegedly invalid regulation ($70 a day) and the prior rate under which each hospital was reimbursed for the same services prior to the date of the amended regulation (February 1, 1981). The motion judge's memorandum of decision accepted the hospitals' views on both points, and a partial declaratory judgment was entered in accordance with the memorandum of decision. The defendants have appealed from that judgment. As will be shown, the prior rates remain in effect until October 1, 1982, and no \\\"new\\\" rates need be set.\\nPrior to the promulgation of the disputed regulation, hospitals were paid for ANDs at the so called \\\"routine rate,\\\" the average cost of routine care, i.e., bed, board, and nursing care, in a hospital. The routine rate in 1981 was $151.66 a day for New England Memorial Hospital and $131.37 a day for Quincy City Hospital.\\nPrior to 1980, skilled nursing facilities were reimbursed on a reasonable cost basis. See 42 U.S.C. \\u00a7 1396a(a)(13)(E) (Supp. III 1979). Effective October 1, 1980, 42 U.S.C. \\u00a7 1396a(a)(13)(E) was revised to require reimbursement on the basis of \\\"costs which must be incurred by efficiently and economically operated facilities\\\" and a requirement that States submit \\\"assurances, satisfactory to the Secretary\\\" that their rates met the statutory standard was added. See Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, \\u00a7 962, 94 Stat. 2599, 2650-2651 (1980). In 1981, this new standard (known as the Boren Amendment) was expanded to include hospitals under the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, \\u00a7 2173(a)(1), 95 Stat. 357, 808 (1981). Section 1396a(a)(13)(E) was redesignated \\u00a7 1396a(a)(13)(A). While the Boren Amendment reflects a desire to reduce Secretarial oversight and paperwork, it also assumes that the Secretary retains \\\"final authority to review the rates and to disapprove those rates if they do not meet the requirements of the statute.\\\" H. Conf. Rep. No. 96-1479, 96th Cong., 2d Sess. 154, reprinted in 1980 U.S. Code Cong. & Ad. News 5903, 5944. For discussion of the change in Federal Medicaid law wrought by the Boren Amendment, see Nebraska Health Care Ass'n v. Dunning, 575 F. Supp. 176, 178-179 (D. Neb. 1983).\\nAfter devising the disputed rate, the commission developed another methodology for rate setting to be effective October 1, 1982. The Secretary signified satisfaction with the assurances as to this methodology on July 15, 1982; this new methodology was superseded, however, by St. 1982, c. 372.\\nWe find unfounded the commission's reliance on the \\\"outside sections\\\" of the 1980, 1981, and 1982 budgets. St. 1980, c. 329, \\u00a7 82. St. 1981, c. 351, \\u00a7 35. St. 1982, c. 191, \\u00a7 14. \\\"We need not and do not answer the question whether such separable provisions may properly be included in a budget bill in the first instance.\\\" Opinion of the Justices, 384 Mass. 820, 826 (1981). The sections merely reflect a desire that AMDs be reimbursed at an appropriate rate to be set by the commission in accordance with Federal and State law. These sections add nothing to the commission's case.\\nWe note that the commission submitted to the Secretary assurances that a later proposed AND rate, made on a hospital-specific basis at rates derived from each hospital's routine per diem costs, conformed with Federal requirements. The Secretary found those assurances acceptable.\\nWe find the commission's argument, that the remedy is unsupported by evidence of injury, to be without merit. This contention is merely another attempt to set forth the commission's substantial compliance theory, which we have rejected.\"}"