erts & W. Employ. Liab. 265, 266. There was nothing in the case from which it could fairly be inferred that the hay fell because of negligence on the part of a superintendent. Exceptions overruled.

(156 Mass. 289)

WEEKS V. INHABITANTS OF TOWN OF
NEEDHAM.

(Supreme Judicial Court of Massachusetts. Norfolk. May 9, 1892.)

DEFECTIVE HIGHWAYS-NEGLIGEN T-EVIDENCE. 1. In an action against a town for injuries caused by a defective highway, for the purpose of showing whether defendant did what was reasonable to prevent or remedy the alleged defect, it is proper to admit evidence as to the population of the town, the valuation, rate of taxation, amount appropriated for highways during the year the accident occurred, and the number of miles of highway in the town.

2. In such case, evidence, by one of defendant's selectmen and highway surveyors, that he had known, before the injury, of the defect complained of, was not admissible, as he had no authority, by virtue of his office, to bind defendant by such admission.

the stand had, on cross-examination, denied making such statement; whereupon the plaintiff introduced evidence tending to prove that such statements were made by Whitaker, the same being the evidence which had been excluded. The plaintiff requested the court to instruct the jury that evidence of admissions of one of the selectmen as to the dangerous character of the road is admissible, as tending to show that fact. The court declined so to instruct the jury, and instructed them that those statements, if made by Whitaker, were admissible only to contradict him, and had no other effect as against the defendant. The jury found for the defendant.

Joseph R. Smith, for plaintiff. H. E. Fales and S. H. Tyng, for defendant.

Action by George H. Weeks against the town of Needham for personal injuries received by reason of a defective highway. Verdict for defendant. Plaintiff excepts. Exceptions overruled.

This was an action of tort for injuries sustained by the plaintiff on the 21st day of January, A. D. 1890, in consequence of alleged defects in a public way in the defendant town. The defects alleged consisted of insufficient width of the way in a causeway leading to a culvert, and the want of sufficient railings, fences, and barriers in connection therewith; the plaintiff claiming that the buggy in which he was riding was thrown from said causeway in consequence of said insufficient width, and the want of sufficient railings, fences, and barriers. The de fendant admitted that the way at the place in question had been in substantially the same condition for several years before as it was in at the time of the alleged accident, and that the defendant had no. tice of said condition. The defendant offered in evidence the population of the defendant town, the assessed valuation of the property therein, the rate of taxation, and the amount of the appropriation for highways, all for the year 1889, and the number of miles of public ways in said town, all of which the court admitted, against the plaintiff's objection, and the plaintiff excepted thereto. It was in evidence that the selectmen of the defendant town were surveyora of highways at the time of the alleged accident. Two of the selectmen who were in office at the time of the alleged accident were called as witnesses by the defendant. The plaintiff offered evidence of statements made, since the accident, by one of them, named Whitaker, to the effect that he had long known the way at the locus in question to be unsafe, and that he had, since he had been in office, been trying to have the same repaired; and the same was excluded by the court. Whitaker when on

MORTON, J. The evidence admitted as to the population of the defendant town, its valuation, rate of taxation, amount of appropriation for highways, and the number of miles of public ways in it, was all competent on the question of reasontown in preventing or remedying the alleged defect. Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402, 138 Mass. 461; Sanders v. Palmer, 154 Mass. 475, 28 N. E. Rep. 778. It was for the jury to consider its weight, in connection with all the other circumstances; and, so far as it included elements not heretofore passed upon by this court, it is enough to say that these were of the same general character as the evidence admitted in the cases cited above. The alleged admissions of Whitaker, even if believed, would not have been binding upon or evidence against the town, either as one of the surveyors of highways or as one of the selectmen; not as one of the surveyors of highways, because he was not, as such, the agent of the town,-Walcott v. Swampscott, 1 Allen, 101; New Bedford v. Taunton, 9 Allen, 207;-not as one of the selectmen, because he had no authority, by virtue of his office, to bind the town by such an admission or statement,-Haliburton v. Frankfort, 14 Mass. 214; Goff v. Rehoboth, 12 Metc. (Mass.) 26; Butler v. Charlestown, 7 Gray, 12; Locke v. Lexington, 122 Mass. 290. The instruction requested was therefore rightly refused, and those given were correct. Brigham v. Clark, 100 Mass. 430; Day v. Stickney, 14 Allen, 255; Gould v. Lead Co., 9 Cush.338. Exceptions overruled.

(156 Mass. 359)

INHABITANTS OF WELLESLEY V. WASH

BURN.

(Supreme Judicial Court of Massachusetts. Norfolk. May 9, 1892.)

BOND ON APPEAL-VALIDITY-WAIVER BY AP PEARANCE.

1. Under Pub. St. c. 161, § 104, which provides that any bond required to be given by a party in the course of a civil suit may be executed by any person other than the party, and may be approved as if executed by such party, if it appears to the magistrate approving it that there is good reason why the same is not signed by such party, a bond given by a town, petitioning for a review, and signed by one of its selectmen as

principal, and by two other selectmen as sureties, is an execution authorized by the statute.

2. Where the magistrate's certificate fails to set forth "good reason" shown, it is sufficient if the record show the petitioner to be a town, and that there was a waiver by respondent's appearance to the petition.

Exceptions from superior court, Norfolk county.

On petition of inhabitants of Wellesley for review, C. Everett Washburn moves to dismiss for want of jurisdiction, there being no sufficient bond. Motion annulled. Blaney & Robinson, for petitioner. C. E. Washburn, for defendant.

HOLMES, J. This is a petition for review under Pub. St. c. 187, § 17. By section 19 of the same chapter, the petitioner is required to give to the adverse party a bond, with sufficient sureties, etc. The respondent moved to dismiss the petition for want of jurisdiction on the ground that there was no sufficient bond. The bond in this case was not signed by the petitioner as principal, but by one of the selectmen, the other two signing as sureties. But this was authorized by Pub. St. c. 161, § 104, to the effect that "any bond required to be given by a party in the course of a civil suit or proceeding may be executed by any person other than the party, and may be approved in the same manner as if executed by such party, if it appears to the magistrate approving it that there is good reason why the same is not signed by such party." We see no ground for the suggestion that this only authorizes the execution of a bond by a third person as agent. On the contrary, we should suppose it probable that St. 1869, c. 436, § 1, embodied in the last-mentioned section of the Public Statutes, was passed to meet just such cases as this, and to save the necessity for a town meeting. The substitution of St. 1869 for that of 1868, c. 285, which it repealed, would seem to have been for the purpose of emphasizing the requirement that good reason for the party not signing be made to appear to the magistrate. The only question suggested by this part of the case is whether the magistrate's certificate ought not to set forth that such good reason had been shown to appear. There may be a doubt, in view of the language of the statute, whether a finding of good reason is not implied by a simple approval. Townsend v. Hoyle, 20 Conn. 1, 8; Dill. Muo. Corp. (4th Ed.) § 601. But in this case sufficient reason appears on the face of the papers, in the fact that the petitioner is a town, and the respondent, by appearing and going to trial, waived the objection, if there was any. See Norris v. Munroe, 128 Mass. 386; Manufacturing Co. v. Purlingham, 137 Mass. 580; Rawson v. Dofuer, 143 Mass. 76, 8 N. E. Rep. 892; rule 16, Sup. Ct. Whether the decision of the justice of the superior court upon the motion was final we need not consider. Pub. St. c. 153, § 8.

At the hearing, evidence was admitted that the respondent sent a bill to the peti. tioner for the services for which he afterwards recovered the judgment sought to be reviewed, and that the bill was for a

(Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.)

NEGLIGENCE-WHAT CONSTITUTES-FIRES.

1. Where a plumber, while making repairs inside of a shafting box, which was saturated with oil, set the box on fire, a jury is warranted in finding that he was incompetent or careless.

2. Where one employs a plumber to make repairs in a shafting box saturated with oil, he may assume that the workman will take notice of the condition of the box, and that the oil would easily ignite by a flame.

Exceptions from superior court, Suffolk county; JOHN W. HAMMOND, Judge.

Action in tort by A. W. Perry against George Smith. Plaintiff had judgment, and defendant brings exceptions. Exceptions overruled.

At the trial it appeared that the plaintiff kept a shop on Summer street in Bos. ton, from which he furnished electric light for lighting stores in the vicinity, and that the defendant was a plumber, to whom the plaintiff had sent an order for a man to make repairs in his shop; that the defendant sent his workman to plaintiff's shop, which was then in charge of one Morse; that neither of the parties to the suit were present when the fire hereinafter mentioned took place; that the defendant's workman was informed by Morse what repairs were desired,-being to fix a lead pipe to one of the bearings, so that it could be oiled from the outside of the box; that the place where the repairs were to be made was inside a shafting box, made of pine or spruce wood, lined with felting tacked on its inside, both wood and felting being saturated with oil, which had accumulated there from its use on the machinery inside the box. The inside of the box was somewhat dark, and the workman asked for a lamp. Morse procured one,-a small, tin lamp, with no chimney, and filled with lard oil. Within a few minutes after Morse left the room, fire was discovered inside the box by the workman, who called Morse from another room, and they both tried to extinguish it. The fire spread, and did the damage complained of. Morse was familiar with the box and its conditions, but did not caution the workman, who was not familiar with it.

W m. A. Knowlton, for plaintiff. James L. Powers, for defendant.

facts. If they did so, we cannot say that they were not warranted in finding that a plumber who knew his business would not set fire to the box unless he was careless. On the other hand, we cannot say that the plaintiff was not warranted in assuming that the condition of the box was obvious, and would be noticed by the workman, and that the workman was aware that oil is easily ignited by flame. Exceptions overruled.

(156 Mass. 273)

SIBLEY V. FELTON et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.) CONTRACT-CONSTRUCTION-VALIDITY.

* * *

An agreement provided "that the subscribers, being desirous of effecting a complete and permanent unity of interest between their distilleries, and also between them and other distilleries, and, preliminary to that purpose, wishing at once to accomplish such unity of interest between themselves, leaving details and the union of other distilleries to be arranged hereafter," and that "a complete plan for such unity of interest, and for the accomplishment of the purposes herein contemplated, shall be prepared at once, and in all other respects the pur. pose contemplated shall be consummated at once. Held, that the agreement was incomplete, the minds of the parties having met on some things and not on others.

Appeal from superior court, Suffolk county.

Action by Richard C. Sibley against Luther A. Felton and others on a contract of agreement entered into for the purpose of forming a copartnership or trust, and an agreement to pay plaintiff for services a certain per cent. of the original capitalization provided for. Judg ment for defendants on demurrer. Plaintiff appeals. Affirmed.

Clement K. Fay and A. H. Latham, for plaintiff. Blaney & Robinson, for Chapin. A. Russ, for Felton and others.

*

*

MORTON, J. The plaintiff's declaration is framed on the theory that the agreement between the defendants was a completed one. We do not so regard it. It begins by saying "that the subscribers, being desirous of effecting a complete and permanent unity of interest between their distilleries, and also between them and other distilleries, and, preliminary to that purpose, wishing at once to accomplish such unity of interest between themselves, leaving details and the union of other distilleries to be arranged hereafter, have covenanted," etc. Article 7 provides that "a complete plan for such unity of interest and for the accomplishment of the purposes herein contemplated shall be prepared at once, and in all other respects the purpose contemplated shall be consummated at once." It is clear that on some things the minds of the parties had met, and on others they had not. The scheme or plan was not completed, and until it was there was no complete or final contract. Until then it was provisional and incomplete, and failure to agree upon the details or upon a complete plan would render all the preliminary agreements void. Freeland v. Ritz, (Mass.) 28 N. E. Rep. 226; May v. Ward, 134 Mass.

127; Ashcroft v. Butterworth, 136 Mass. 511; Lyman v. Robinson, 14 Allen, 242, 252; Appleby v. Johnson, L. R.9 C. P. 158; Ridgway v. Wharton, 6 H. L. Cas. 238. The first cause of demurrer assigned is that the agreement between the defendants was incomplete; and, as we are of opinion that this ground is well taken and is fundamental, it is not necessary to consider the other causes of demurrer. The entry must be, judgment affirmed.

(156 Mass. 375)

POWERS V. MANN et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.)

OF

PARTNERSHIP DISSOLUTION ASSUMPTION PARTNERSHIP DEBTS -INSOLVENCY-RIGHTS OF CREDITORS.

Pub. St. c. 157, § 125, provides that when, on dissolution of a firm, one of the partners agrees to pay any outstanding debts, and the party so agreeing has become insolvent, such debts may, if the creditors so elect, be proved against the estate of such insolvent debtor, and the allowance thereof shall be a discharge of the party originally liable therefor. Held, where plaintiff so elected and proved against the partners who had assumed the outstanding firm debts, that defendant, a party originally liable, was discharged, even though plaintiff did not know when he made his election and proof that the partners against whom he proved had agreed to pay the outstanding debts, and subsequently, upon learning such fact, had his proof expunged from the insolvency proceedings.

Exceptions from superior court, Suffolk County; CHARLES P. THOMPSON, Judge.

Action by Wilbur H. Powers against Josiah H. Mann and others. Judgment for defendants. Plaintiff excepts. Exceptions overruled.

H. L. Boutwell, for plaintiff. Geo. A. Towle, for defendants.

HOLMES, J. The plaintiff sued upon a note made by the firm of Severance & Tappan while the defendant Mann was a member. Mann's defense was that the firm was dissolved; that Severance & Tappan then agreed to pay the outstanding debts, including this note; that they subsequently went into insolvency; and that the plaintiff elected to prove against them, and thus discharged Mann by force of Pub. St. c. 157, § 125.1 The question tried before the jury was whether the plaintiff elected as alleged. It was not denied that the plaintiff proved against Severance & Tappan, or that subsequently his proof was expunged upon his own petition. But the plaintiff testified that when he proved he did not know of Severance & Tappan's agreement to pay the debts of the old firm, and he sought to avoid the effect of his proof in that way.

When the record of the insolvency proceedings was put in, the plaintiff excepted to the introduction of so much of it as

showed a petition that Mann be adjudged a member of the firm, which petition was heard and dismissed by the judge. We do not perceive what harm this evidence can have done the plaintiff. He proved on the footing that Severance & Tappan were properly in insolvency without Mann, and the judge decided that they were. The decision had no bearing on the question whether the plaintiff was ignorant of their agreement to pay the firm debts, as he said.

Exceptions overruled.

(141 III. 632)

SILVIS, Sheriff, v. C. AULTMAN & Co.1 (Supreme Court of Illinois. May 12, 1892.) CHATTEL MORTGAGE-VALIDITY.

Under Rev. St. 1874, c. 95, § 4, as amended by Act June 16, 1887, which declares that a chattel mortgage shall be valid from the time it is filed for record until the maturity of the entire debt, provided such time shall not exceed two years, unless within 30 days next preceding the maturity of the debt a certain affidavit be filed for record, a chattel mortgage securing several notes, some of which mature in less and some in more than two years from the date of recording the mortgage, is void as against the mortgagor's creditors, even though the mortgagee, as allowed by the mortgage, declares the whole debt due before the expiration of said two years. CRAIG and SHOPE, JJ., dissenting. 39 Ill. App. 164, reversed.

Appeal from appellate court, second district.

Replevin by C. Aultman & Co., an Ohio corporation, against Thomas S. Silvis, sheriff. Defendant obtained judgment, which was reversed by the appellate court. Defendant appeals. Reversed.

Sweeney & Walker, for appellant. William Jackson and E. E. Parmenter, for appellee.

MAGRUDER, C. J. This is an action of replevin begun in August, 1889, in the circuit court of Rock Island county, by the appellee, C. Aultman & Co., a company incorporated under the laws of Ohio, to recover the possession of certain personal property from the appellant, the defendant below, who was the sheriff of the county. The defeuse was that the property belonged to James M. Davis, and that the defendant took the same as sheriff, under an execution issued against Davis in favor of Elliott & Carpenter. Trial by jury was waived by agreement. There was a stipulation as to the facts, and the cause was heard by the court upon the agreed case, containing the points of law at issue between the parties. The finding of the circuit court was for the defendant, and judgment was rendered in his favor for one cent damages and costs, and for the return of the property replevied. The appellate court reversed the judgment of the circuit court, and ordered that the issues tried by the latter court on an agreed state of facts be found in favor of C. Aultman & Co., the appellant in the appellate court and the appellee here, and that it recover from the appellee there,

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

who is the appellant here, one cent damages, and the costs of the suits in both courts. The judges of the appellate court have granted a certificate of importance, and the case comes here by appeal from that court.

* * *

On August 1, 1887, the property replevled was the property of the said James M. Davis, and remained in his possession un. til it was levied upon and taken from him upon said execution. C. Aultman & Co., the plaintiff company in the court below, based its right to recover upon a chattel mortgage bearing date August 1, 1887, and executed to it by said Davis. This chattel mortgage recites that it was given to secure an indebtedness of $1,941.25 from Davis to C. Aultman & Co., according to the conditions of five notes made by the former to the order of the latter, all dated August 1, 1887,-one for $250, payable December 1, 1887; one for $425, payable December 1, 1888; one for $425, payable December 1, 1889; one for $425, payable December 1, 1890; and one for $416.25, payable December 1, 1891. The mortgage authorizes the mortgagor to retain possession of the property "until he shall make a default in the payment of said promissory notes, or either of them, above specified, either in principal or in. terest, at the time or times and in tho manner herein stated;" and it contains, among others, the following provision: “And in case default shall be made in the payment," etc., "or if the party of the second part, (C. Aultman & Co.,) or their successors or assigns, shall feel insecure or unsafe, or shall fear diminution, removal, or waste for want of proper care of said property, or if the same should be seized upon mesne or final process had against the said party of the first part, (J. M. Davis,) then, or in any or either of the aforesaid cases, all of said notes shall, at the option of the party of the second part, (C. Aultman & Co.,) or their successors or assigns, without notice, at once become due and payable," etc. The mortgage was acknowledged before a justice of the peace on September 17, 1887, and filed for record in the recorder's office on October 3, 1887. On March 6, 1889, Elliott & Carpenter recovered judgment for $669.25, and by virtue of the said execution issued thereon the levy aforesaid was made upon the property in question on August 1, 1889. At the latter date the two notes, payable December 1, 1887, and December 1, 1888, had been paid. After the levy, the plaintiff below declared the whole amount of the remaining notes due, and, after making demand upon the sheriff for the possession of the property, brought the present replevin suit. The question is whether the mortgagees or the execution creditors are entitled to the possession of the property. The determination of this question involves the decision of the further question whether or not this chattel mortgage is a valid instrument, under the statute of 1874, as amended in 1887, as hereafter referred to. The circuit court decided against its validity, and the appellate court has decided in favor of its validity.

Section 3 of chapter 20, entitled "Chattel

Mortgages, of the Revised Statutes of 1845, was as follows: "Any mortgage of personal property so certified shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the same is made, acknowledged, and recorded, and shall thereupon, if bona fide, be good and valid from the time it is so recorded, for a space of time not exceeding two years, notwith. standing the property mortgaged or con. veyed by deed of trust may be left in possession of the mortgagor: provided, that such conveyance shall provide for the possession of the property so to remain with the mortgagor.' It will be noted that this section makes no reference to the debt secured by the mortgage. In Cook v. Thayer, 11 Ill. 617, a mortgage executed under the statute of 1845 provided that the mortgagor might retain possession of the property until default was made in the payment of the note secured, and, as the note had three years to run from the date of the mortgage, it was claimed that the mortgage was hereby rendered fraudulent and void in law. But it was there held that a mortgage which has longer than two years to run is not without the protection of the statute altogether, and it was said: "It continues valid

for two years, whether the debt which it is designed to secure then becomes due or not. At the expiration of the two years it ceases to be valid as against creditors and purchasers, unless the possession of the property is transferred to the mortgagee. In the case at bar the last three notes all run for a longer period than two years from the date of the mortgage, and for a longer period than two years from the date when the mortgage was recorded. The last note runs more than four years from the date of the recording of the mortgage. Unquestionably, if the mortgage securing these notes had been executed when the law of 1845 was in force, the doctrine of the Cook Case would apply, and the mortgage would have continued to be valid for two years, although the whole of the indebtedness secured by it did not mature until long after the expiration of two years. In Reed v. Eames, 19 Ill. 594, the chattel mortgage executed under the law of 1845 secured a note due in one month from the date of the mortgage, and from the date of the recording of it, and provided that the possession of the property should remain with the mortgagor until default. It was there held that, as the mortgage did not authorize the mortgagor to retain possession for two years, the mortgagee ought to have taken possession one day after default in order to secure his lien, and, not having done so, a judgment creditor, levying his execution a little over a month after the maturity of the note, was allowed to hold the property. In Cass v. Perkins, 23 Ill. 382, a mortgage under the same statute secured a note due in less than four months, and authorized the mortgagee to take possession on default. It was there held that, upon default in payment, the title vested absolutely in the mortgagee, and that a delay of three days after default was fraud in law, and subjected the

property to the lien of the execution theretofore levied.

99

In 1874 the legislature passed "An act to revise the law in relation to mortgages of real and personal property." 2 Starr & C. St. p. 1630; Rev. St. 1874, c. 95, § 4. "Such mortgage, trust deed, or other conveyance of personal property, acknowledged as provided in this act, shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded, or, in case the mortgagor is not a resident of this state, them in the county where the property is situated and kept, and shall thereupon, if bona fide, be good and valid from the time it is filed for record until the maturity of the entire debt or obligation: provided, such time shall not exceed two years. This section 4 was amended in 1887 by an act approved June 16, 1887, and as so amended reads as follows: "Sec. 4. Such mortgage, trust deed, or other conveyance of personal property, acknowledged as provided in this act, shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded; or, in case the mortgagor is not a resident of this state, then in the town where the property is situated and kept: and shall thereupon, if bona fide, be good and valid from the time it is filed for record until the maturity of the entire debt or obligation: provided, such time shall not exceed two years, unless, within thirty days next preceding the maturity of the note or obligation for which such instrument or mortgage is given to secure, the mortgagor and mortgagee, his or their agent or attorney, shall file for record an affidavit, setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and, if such mortgage is for the payment of money, the amount remaining due and unpaid therein, and the time for which the said mortgage is extended, which said extension shall not exceed a further term of two years, upon which affidavit the clerk shall indorse the time when the same was filed; and the said mortgagee shall also, within the said preceding thirty days, file a certified copy of said affidavits with the justice of the peace before whom said mortgage was acknowledged, or his successor in office; and thereupon the mortgage lien originally acquired shall be continued and extended for and during the term of such extension." Section 4, as amended in 1887, was in force when the mortgage in the case at bar was executed. The amendatory act approved June 17, 1891, has no application here. The act of 1874 provides that the mortgage shall be "valid from the time it is filed for record until the maturity of the entire debt or obligation: provided, such time shall not exceed two years." The words "such time," as used in the proviso, refer to the period between the time of filing the mortgage for record and the maturity of the entire debt, or of all the notes secured by the mortgage. One of the offices of a proviso is to qualify or restrain the generality of the enacting clause.