Winslow v.

by the selectmen, or of ascertaining boundaries for public purposes. Gifford, 6 Cush. 327. The present case is a much stronger one than Brigham v. Edmands, 7 Gray, 359. See, also, Baker v. Boston, 12 Pick. 194. No doubt the plaintiff might have obtained an injunction to restrain the prosecution of the work if he had sought his remedy in that form. Boston Water Power Co. v. Boston and Worcester Railroad, 16 Pick. 525. The acts done having been beyond the authority and power of the city to do, the city cannot be held responsible in damages for what was done under the supposed authority of illegal and void votes. Spring v. Hyde Park, 137 Mass. 554; S. C., 50 Am. Rep.- ; Lemon v. Newton, 134 id. 476; Cushing v. Bedford, 125 id. 526. But the liability, if any, rests upon the individuals who performed the acts, as in Brigham v. Edmands, 7 Gray, 359. Exception overruled.

BAILMENT-Negligence

[29 Eng. Rep. 148.]

CLARK V. THE EASTERN RAILROAD CO.

June 19, 1885.

GRATUITOUS BAILEE.

Failure to provide suitable store-room, with reference to safety from fire, and proper means for extinguishing fire, is not of itself such gross negligence as renders a gratuitous bailee liable for loss occuring from accidental fire.

Action of contract to recover damages alleged to have been caused by the destruction of the plaintiffs' goods by a fire occurring at the station of the defendant at Salem, on the night of April 6-7, 1882. At the trial in the superior court it appeared that on fast day, April 6, 1882, one Nicholson, a commercial traveler for the plaintiff's firm, came from Gloucester to Salem on the Eastern railroad; buying his tickets and checking his two trunks containing hats, caps and straw goods at Gloucester. He arrived at Salem at about 6:10 P. M., and not finding the kind of conveyance necessary to carry the trunks to the hotel, they were left at the station and placed in the baggage-room. That night there was a fire in the baggage-room of the station. The plaintiffs contended that the baggageroom in which his goods were placed, was unsuitable and the contents in the room were of an inflammable character; and also, that the means provided for the extinguishment of a fire in such circumstances were grossly insufficient. At the close of the evidence in the case the court ruled, that there was no evidence upon which the jury could find a verdict for the plaintiffs, and directed them to return a verdict for the defendant. The plaintiffs alleged exceptions to the ruling of the court.

S. J. Thomas, for plaintiffs. R. Olney & S. Butler, for defendant.

C. ALLEN, J. The plaintiffs' case rests on the proposition that the baggageroom provided by the defendant was not a suitable place for the storage of trunks, with reference to safety from fire, and that the defendant did not provide proper means for extinguishing fires. Such omission is not of itself gross negligence for which a liability can be imposed on a gratuitous bailee to make good a loss, happening from an accidental fire. The defendant, in point of fact, appears to have put the plaintiffs' trunks in the only place it had for the purpose of keeping trunks, and certainly it was under no obligation to the plaintiffs to provide a better place In this view it is not necessary to consider the further proposition of the defendant, that since the plaintiffs' property was put into the defendant's custody without its consent, and solely through the wrongful and fraudulent conduct of the plaintiffs themselves, all the consequences must be borne by them exclusively.

Exceptions overruled.

[Moak Van Sant. Pl. 853; 8 Wait. A. & D. 617; 26 Am. Rep. 330.]

Machinery separately constructed, and secured to a building by bolts, screws, nails or cleats, which is adapted for use in any building and which can be removed without injury to itself or the building, and it not appearing that the machinery was placed in the building to carry out the purposes for which it was erected, or to permanently increase its value for occupation, is not a part of the realty.

Action of replevin to recover certain machinery in a planing-mill and wheelwright-shop at Woburn. The case was heard on agreed facts. The superior court gave judgment for the plaintiff, and the defendant appealed. The facts appear in the opinion.

W. B. & J. P. Gale, for plaintiff. G. C. Abbott, for defendant.

FIELD, J. The plaintiff is the assignee in insolvency of Lawrence B. Norris, and claims title under a mortgage of the machinery, as personal property, given September 18, 1875. The defendant claims title to the machinery under, a mortgage of the land and building, given November 29, 1870. There was no engine, boiler or machinery in the building when this mortgage was given. The engine, boiler, shafting and a part of the machinery were put in the building by the mortgagor, and a part of the machinery was subsequently put in by Norris, who was the third mortgagee of the land and buildings, and took possession under, and foreclosed his mortgage June 22, 1877. The defendant took possession April 30, 1883, having purchased the land and buildings at a sale under the power of sale, contained in the first mortgage. The question is whether the machinery was so affixed to the building that it became real property, as between mortgagee and mortgagor. The parties filed an agreement that the auditor's report might be taken as an agreed statement of facts. On this report and agreement the superior court found for the plaintiff, and assessed damages in the sum of $1, and ordered judgment for the plaintiff, from which the defendant appealed. The description in the auditor's report of the machinery and of the manner in which it was affixed to the building is somewhat brief, and it is plain that all the facts are not before us that were before the auditor, as his view of the premises would be evidence before him. There are no questions of law raised in his report, and the auditor found for the plaintiffs. It is not found for what purposes the building was erected, and to what uses it was by its construction adapted, or that the removal of the machinery would in any way injure the building or impair its value for any of the uses to which it was adapted.

All of the machines appear to have been separately constructed and adapted for use in any building in which they could be placed, and were secured in position by bolts, screws, nails or cleats, and could be removed without injury to themselves or the building. The engine, boiler and necessary shafting are not included in the writ and are not replevied. It has been said that the object, effect and the mode of annexation must all be considered in determining whether any specific articles are removable fixtures." Leonard v. Stickney, 131 Mass. 541; Allen v. Mooney, 130 id. 155.

It does not appear in the present case that the building was a mill or machineshop when the mortgage under which the defendant claims was given. It does not appear that this machinery could not be removed and other machinery of a different kind put in and the building be used as beneficially for the new business as for the old. It does not appear that the machinery was put into the building "to carry out the obvious purpose for which it was erected or to permanently increase its value for occupation." Mc Connell v. Blood, 123 Mass. 47; S. C., 25 Am. Rep. 12.

There is great difficulty in determining, as matter of law, upon an agreed statement of facts, whether articles of the kind here described have or have not become a part of the realty, particularly when all the facts which would be competent upon the question are not contained in the agreed statement. The indications, afforded by the mode of annexing a machine to a building and by the

use made of it, must clearly show an intention of permanently making it a part of the building to enable the court, from these facts alone, to declare that as matter of law it is a part of the realty in cases where the machine is portable, complete in itself, and can be used elsewhere as well as in the building, and can be removed without injury to itself or to the building. If this case had been submitted to the superior court upon the auditor's report without other evidence, it would certainly have been competent for that court to have affirmed the finding of the auditor, in favor of the plaintiff. It is not entirely clear what the effect is, of the parties submitting the case to that court upon the auditor's report as an agreed statement of facts, if the auditor has found that the plaintiff is entitled to the property, and if that is a finding upon a material question of law and fact. However that may be, we are inclined to think that the case falls within the principles of the decision of Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; S. C., 42 Am. Rep. 446, and that the judgment must be affirmed. Judgment affirmed.

ADAMS, JR., Trustee, v. ADAMS.

June 20, 1885.

WILL CONSTRUCTION OF- DISTRIBUTION.

Trustees under a will were directed to pay the net income of the residue of the testator's property (not required for the payment of two annuities) to his wife during her life, and at her death to distribute the fund (except so much as might be required to pay the two annuities) among those who would take as distributeces of his personal estate had he died intestate, immediately after the death of his wife. At the death of his wife the trust fund contained bonds for the payment of money with semi-annual interest coupons attached, payable at different times. The surviving trustee had collected the coupons as they

matured.

A bill in equity being brought by the trustee for instructions as to whether the amount received by the trustee in payment of the first set of coupons which matured after the death of the testator's widow were apportionable between her estate and the distributees under the will, and if so, in what manner the apportionment should be made.

Held, that the moneys received by the trustee from the coupons not payable at or before the time of her death, being coupons for interest for six months, which had begun to run at the time of her death, should be apportioned according to the proportional part of the six months which in each class of coupons had elapsed at the time of her death.

Bill in equity by the surviving and remaining trustee of the will of Peter Chardon Brooks, for the instructions of the court as to the disposition of the trust fund. The bill was taken for confessed by some of the defendants, and the case was reserved for the consideration of the court, upon the bill and answer of the other defendants. The facts sufficiently appear in the opinion.

F. C. Welch, for plaintiff. F. E. Parker & C. E. Stratton, for different defendants.

His

FIELD, J. Peter C. Brooks, who died June 3, 1880, by his will gave the residue of his property to trustees, upon trust to pay all the net income (not required for the payment of two annuities) to Susan Oliver Brooks, his wife, so long as she should live, and, at her death, to distribute the fund (excepting so much as might be required for the payment of the two annuities), among those who would take as distributees of his personal estate by the laws of this Commonwealth, if he had died intestate, immediately after the death of his wife. wife died February 2, 1884. At her death the trust fund contained bonds for the payment of money issued by different corporations, or by the United States, with semi-annual interest coupons attached, payable at different times, determined by the day when the principal sum of each of the different classes of bonds became payable. These coupons the trustee has collected as they matured. The bonds themselves were not over-due. The question is whether the amounts received by the trustee in payment of the first set of coupons, which matured after the death of Mrs. Brooks, are apportionable between her estate and the distributees under the will of Mr. Brooks; and, if they are apportionable, in what manner the apportionment should be made. If they are apportionable it is by virtue of Pub. Stats. chap. 136, § 25; Gen. Stats., chap. 97, § 54, as they are not apportionable at common VOL. I.-16

law or in equity. Dexter v. Phillips, 121 Mass. 178; S. C., 23 Am. Rep. 261. That the coupons can be severed from the bonds and thus become separate and independent obligations with all the incidents of debts that are distinct from the principal obligation is true; and one suggestion is that each bond and its coupons are, in legal effect, so many distinct obligations, payable without interest, at different fixed times, and that an investment in such obligations is an investment in non-interest bearing securities. If this view were adopted in its full scope, the result would be that a trustee under such a trust ought not to make such an investment, and that the amounts received from coupons that matured and were paid during the life of Mrs. Brooks ought not to be regarded as wholly income, although the question would remain, whether the present worth of each obligation, at the time it was purchased, ought not to be computed in order to ascertain what portion of the sums received should, as between successive takers, be regarded as principal, and what, as income. It is evident, however, that this is not the real nature of the obligation of a coupon bond. The coupons are promises to pay certain sums of money at certain times expressly as interest on the bond. They differ from the ordinary promise to pay interest semi-annually, contained in promissory notes, only in their capacity of being detached from the bond and thus acquiring all the incidents of a distinct negotiable written promise. If a trustee should, immediately on the purchase of a coupon bond, cut off the coupons and sell them, the question might not arise of the proper distribution of the proceeds, as between principal and income of the trust fund, because the proceeds might be regarded as a part of the principal to be re-invested, but questions would arise of the propriety of the trustees holding as a part of the trust fund a bond payable on time without interest, or of the duty of the trustees to pay, thereafter, to the life tenant the accretions in the value of such a bond occasioned by lapse of time. While the trustee holds the bonds and its coupons, as part of the same investment, the coupons, as they mature and are paid, are regarded as income received from an investment of the trust property. Haraden v. Larrabee, 113 Mass. 430. In Granger v. Bassett, 98 id. 462, the court held that "the General Statutes (chap. 97, § 24) do not change the rule of law, which held dividends from the profits of business of incorporated companies, not to be apportionable. Foote, Appellant, 22 Pick. 299. The distinction between dividends and coupons is not only that dividends are contingent and uncertain in amount, but that they do not in any sense exist as dividends or as the separate property of the stockholders until they are declared. The many cases in which stock dividends have been declared to be capital, and dividends payable in money to be income, all proceed upon the ground that it is the declaration of the dividend which creates it as a dividend, and the form of the declaration, as shown by the votes of the corporation, construed in the usual way, determines the character of the dividend, whether it is a distribution of capital stock or a division of profits. Minot v. Paine, 99 Mass. 101; Daland v. Williams, 101 id. 571; Rand v. Hubbell, 115 id. 461; S. C., 15 Am. Rep. 121; Gifford v. Thompson, id. 478.

But coupons attached to bonds are absolutely due and certain to become payable at a fixed time; and although the amount payable, in the technical language of the law, cannot be said to accrue from day to day, yet the proportionate part of the coupon, which, at any time within the half year covered by it, is earned as interest, on the principal sum of the bond, can be exactly computed, and its character as interest becoming due, is not and cannot be changed by subsequent events so long as the coupons remain attached to the bonds or are held by the same person who holds the bond as a part of the same purchase or investment. The words "annuity, rent, interest or income," in Public Statutes, chap. 136, § 25, were rightly held not to include dividends of corporations, because dividends are not fairly within the natural meaning of these words, and undeclared dividends differ substantially from interest or income. But, so long, at least, as the bond itself, with the coupons, is held by the trustee as part of one purchase or investment, the coupons are promised to pay interest on the principal sum of the bond and the amounts received in payment of such coupons, at or after their maturity, are literally and substantially amounts received for interest, payable on the principal obligation, and we have no doubt these amounts are within the meaning

of the words "interest or income" in Public Statutes, chap. 136, § 25. There was much criticism at the bar upon the phraseology of Public Statutes, chap. 136, §§ 24, 25, which were doubtless intended as a re-enactment of Stat. 1848, chap. 310. It was said that the first section of Stat. 1848, chap. 310, was only declaratory of the common law, and that the second section excepted from its operation the first year from the death of the testator, and treated rent, interest, and income as well as annuities payable yearly and having each a "current year." We are concerned with these criticisms, only so far as it is necessary to determine the meaning of the words "such annuity, rent, interest or income, for the then current year, shall be apportioned, and such person, or his representatives, shall be entitled to receive a proportional part thereof." The general purpose of the statute was, not to take from the life tenant any thing which, by the common law, was absolutely his property, but to give to him or his representatives a share of an annuity or of rent, interest or income, which the common law, refused to give, on the ground that the annuity, rent, interest or income could not be apportioned. The language of the statute is appropriate to an annuity given by the testator and payable yearly from his death, and grammatically the provisions of the statute attach equally to annuities, not payable yearly, and to rent, interest and income, but the general intent of the statute must prevail over the grammatical construction. A trustee's account would usually be made up yearly, reckoning from the death of the testator, and the "then current year" may be taken to refer to the year running when the life tenant died, or the contingent event happened, and the statute may be taken to provide for the apportionment of the income in making up the accounts for that year. The established method of making an apportionment is to divide the amount received (when money is payable periodically at fixed times), according to that proportional part of the whole period, for which the money is payable, which had elapsed at the time of the death of the life tenant, or at the time of the happening of the event which terminated the right of the tenant. We are satisfied that the statute did not intend to abolish this rule and establish a different one. The amounts received by the trustee from the coupons not payable at or before the time of the death of Mrs. Brooks, and which were coupons for interest for six months, which had begun to run at the time of her death, must be apportioned, according to the proportional part of the six months, which in each class of coupons had elapsed at the time of her death.

So ordered.

[14 Eng. Rep. 419; 25 Id. 799; Id. 172.]

ROGERS v. ROGERS.

June 20, 1885.

CONTRACT-BREACH-SUBSTITUTION OF NEW CONTRACT.

When, upon the refusal of one party to fulfill an agreement, the same parties enter into another agreement which is fully carried out, covering substantially the same grounds as the first but on different terms, it will be deemed, unless it appears that such was not the intention of the parties, a substitution of a new contract for the old.

Action to recover damages for breach of a contract to sell and deliver goods to the plaintiffs in Boston. At the trial in the superior court, without a jury, the plaintiffs introduced testimony tending to show that on or about July 8, 1879, the defendant, a manufacturing corporation in Connecticut, by its agent, orally agreed to sell and deliver to the plaintiffs, in Boston, from time to time, as ordered by them, such silverware as they might need in their business and order during the season, that is between July and January 1, 1880, at stipulated discounts from certain list prices, and that the goods were to be paid for at the end of each month; that pursuant to this contract, and on the day of the date of it, and at different times previous to October 14, the plaintiff ordered goods, a part of which were delivered and paid for according to the contract; that on October 14, the defendant, by letter of that date, repudiated its contract and refused to fill any of the unfilied orders, or to receive and fill future orders, except upon the express promise on the part of the plaintiffs to pay for the goods at a less rate of dis