taining schools that the excess which fell upon Needham should be ascertained “on the basis of the average number of scholars in the public schools, of legal school | age, for the year eighteen hundred and eighty." The commissioners ruled and held that by "the average number of scholars in the public schools" was meant the average "membership of the public schools as shown by the school register." This was the correct construction of the statute. Scholars whose names are upon the register, and who are recognized as members of the schools, are scholars, though they may be occasionally absent from school. If the legislature had intended to make the average attendance upon the schools the basis, it would have said so. The language used does not naturally bear this construction.

The commissioners also ruled that the phrase in the statute, "of legal school age, " includes all the members of the schools under the age of 21 years. We are of opinion that this ruling was correct. Pub. St. c. 47, § 4, provides that "all children within the commonwealth may attend the public schools in the place in which they have their legal residence, subject to the regulations prescribed by law." Under this provision, all the residents of the commonwealth under the age of 21 years, as soon as they have sufficient capacity, are entitled to attend the public schools, subject to such lawful regulations as may be made; and by its natural meaning the expression, "scholars of legal school age,” includes all those who are entitled to attend the public schools. The respondent contends that it means scholars between the ages of 8 and 14 years. The statute upon which it relies provides that persons having the control of children between those ages may be compelled to 'send them to school for a certain portion of the year. Pub. St. c. 47, § 1. It does not fix the ages within which children may legally attend the public schools. It is, like Pub. St. c. 48, in regard to children employed in manufacturing establishments, designed to compel the education of children, and not to fix a legal school age. The same remark is true of Pub. St. c. 43, upon which the respondent relies as establishing the legal school age as being between the ages of 5 and 15 years. This statute provides for the distribution of one half of the income of the school fund among the cities and towns in proportion to the number of persons between 5 and 15 years of age belonging to each. It is no part of its purpose to provide what shall be the legal school age. We can see no rule of construction by which it can be held that scholars under the age of 8 or over the age of 14 years are not of legal school age. The expense of maintaining schools depends upon the number of scholars who attend, and not upon the number of those who are compelled to attend. The reason of the rule, and the ordinary meaning of the language used, both show that by "scholars of legal school age" the legislature intended all scholars who were of the age which entitled them to attend school, and for whom the town was conpelled to keep its schools open.

The commissioners rightly ruled that, in determining what was the excess of the cost of maintaining the schools in Needham, they could not take into account the grades of the different schools, or consider the fact that a larger proportion of the schools in Wellesley was of the grade of high schools, while a larger proportion of the schools in Needham were primary schools. The statute adopts an arbitrary rule, which was binding upon the commissioners. The excess was to be ascertained on the basis of the average number of scholars in the public schools, without regard to their grade. The commissioners had no right to depart from this basis, which probably the legislature thought would work substantial justice between the two towns.

The commissioners rightly ruled that interest on the cost or value of the schoolhouses ought not to be included as part of the expense of maintaining the schools for the year 1880. By “the annual excess, if any, of maintaining the public schools, highways, and bridges," the legislature undoubtedly meant the amount expended annually, and did not intend to include interest on the cost of schoolhouses, any more than interest on the cost of the highways and bridges.

The question raised before the justice who heard the case, as to the few children who attended school out of the town in which they resided, was not argued before us, and we do not consider it.

The only remaining question is as to the time at which interest, if any, should begin to run on the amount which, by the report, Wellesley is to pay to Needham. The statute makes no provision as to interest. It fixes no time when Wellesey shall pay to Needham the amount to be paid by Wellesley. It contemplates that the parties may not agree upon this sum, and that some time may elapse before it can be fixed by the method it provides. It seems to us that Wellesley cannot be required to pay interest, as damages, until it is in default. It is not like the case of taking land for a public use, where the land is appraised at its value on the day it is taken, and the law regards it as the duty of the party taking to pay at the moment of taking,-to take with one hand and pay with the other, and so allows interest for the detention of the money until it is paid. Parks v. Boston, 15 Pick. 198; Whitman v. Railroad Co., 7 Allen, 313. The sum to be paid by Wellesley is not in payment of the property of Needham taken by Wellesley. It is in the nature of indemnity for the inequality produced by the division of the old town. The liability is purely a statutory liability, the amount of which is to be ascertained in the manner fixed by the statute. Upon the whole, it seems to us that until the amount is determined the town of Wellesley cannot be said to be in any default, and therefore that it should not be charged with interest. It does not seem to us that the commencement of this petition can be regarded as a demand which puts the respondent town in default. The petition is one of the steps for ascertaining the amount. It might be brought by either party, and it did not

Judgment accordingly.

GILBERT V. CITY. OF BOSTON.1 (Supreme Judicial Court of Massachusetts. Suffolk. May 11, 1885.)

CONTRIBUTORY NEGLIGENCE DEFECTIVE STREET. The fact that a woman 60 years old, weighing about 200 pounds, and blind of one eye, before attempting to cross a pile of ice and snow upon a street crossing, noticed that it was very rough and slippery, and that, in order to reach the sidewalk to which she wished to go, she must step nearly 2 feet over a ditch and ice, does not authorize the court to say, as matter of law, that she was not in the exercise of due care in attempting to pass over it.

Exceptions from superior court, Suffolk county; BACON, Judge.

Action of tort by Elizabeth T. Gilbert against the city of Boston for personal injuries caused by a defect in Dorchester street. The evidence showed that plaintiff and her niece were crossing together, arm in arm, from West Seventh street to the southeasterly side of Dorchester street, upon a cross walk which was in good condition, except that portion of it at and immediately surrounding the place where the defect contributing to the injury existed; and this defective portion was an accumulation of rough and uneven snow and ice lying upon the cross walk within a distance of 4 feet from the southeasterly sidewalk of Dorchester street. At that distance such accumulation began on a line with the level of the street, and extended, increasing in thickness, to a ridge upon the edge of a ditch cut in the snow near the edge stone of the sidewalk, giving to the ridge upon the crossing at this edge of the ditch a thickness, including the flagging, of 15 inches, where it formed the outer wall of the ditch, and 6 or 8 inches above the level of the sidewalk, while the edge stone of the walk formed the inner wall of the ditch. The top of this accumulation, running along the edge of the ditch, was 4 inches in width. The ditch was 12 inches wide, with its outer wall about 15 inches and its inner wall about 7 inches in depth. Upon the edge of the sidewalk in front of the crosswalk, and extending several feet along the sidewalk, was a strip of ice 10 to 14 inches wide. The sidewalk inside of this ice was perfectly clear and safe. The accumulation of snow and ice was very steep, rough, and slippery, and consisted of blocks and lumps of snow and ice on the edge of the ditch, heaped up and thrown together by workmen in digging the ditch through the snow to clear the gutters, and afterwards frozen together there in a very rough form, and about 6 or 8 inches higher than the rest of the accumulation on the crossing. The plaintiff testified that, before

This case, filed May 11, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

she saw that it was in this condition, "and looked for a place to go over easier," but on finding the condition of the street near there, on both sides of the cross walk, to be equally unsafe, she proceeded with her companion to the top of this accumulation, and, intending so to step over the ditch and beyond the ice on the edge of the sidewalk,-a distance of from 22 to 27 inches, began from the narrow top of this rough and uneven accumulation of slippery snow and ice to take such a step, and in so doing slipped, fell, and sustained the injury complained of. Plaintiff was sixty years old, and weighed not far from 200 pounds. At the time of the injury, she wore glasses, and was blind in her left eye, but she could see quite as well as ever with her right eye. The judge instructed the jury that, under all the circumstances of the case, it was a question for them whether or not the plaintiff was in the exercise of due care in at

tempting to step over this ditch, and beyond the ice upon the edge of the sidewalk; she at the time being aware of its defective character. The jury returned a verdict for the plaintiff, and the defendant excepts. Exceptions overruled.

T. J. Emery, for plaintiff. R. W. Nason, for defendant.

FIELD, J. The nature of the defect was not such that the court can say, as matter of law, that the plaintiff was not in the exercise of due care in attempting to pass over it. Dewire v. Bailey, 131 Mass. 169. Exceptions overruled.

GRAY V. BOARD OF ALDERMEN OF BOSTON.2 (Supreme Judicial Court of Massachusetts. Suffolk. May 13, 1885.)

MUNICIPAL CORPORATIONS-SEWERS-SPECIAL AS

SESSMENT.

Under Gen. St. c. 19, § 17, authorizing the board of aldermen of Boston to construct and maintain common sewers, and St. 1873, c. 205, § 1, providing that said board may take and divert the water of a stream within the city, and devote the same to the purposes of sewerage and drainage, such board has power to order a single structure to serve both as a conduit for the stream and as a common sewer, and may assess, under Gen. St. c. 48, § 4, upon those benefited thereby, their proportional part of the expenditure which was necessary for the structure as a sewer.

Case reserved from supreme judicial court, Suffolk county; DEVENS, Judge.

Petition by William Grey, Jr., for a writ of certiorari to quash an order of the board of aldermen of the city of Boston assessing the petitioner a proportional part of the expense of constructing a sewer. Petition dismissed.

G. O. Shattuck, for petitioner. A. J. Bailey, for respondent.

DEVENS, J. By St. 1869, c. 111, which repealed sections 1-3, c. 48, Gen. St., cities and towns were authorized to lay out such main drains and common sewers as are deemed

This case, filed May 13, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

necessary for public convenience or health. Lands might be taken therefor by proceedings similar to those which are had in laying out highways; and all persons suffering damages thereby were to have the same rights and remedies for ascertaining the same that existed in the case of laying out highways or town ways. This authority to lay out sewers was properly exercised in Boston by the board of aldermen. Gen. St. c. 19, § 17. By Gen. St. c. 48, § 4, every person who entered his own drain into the common sewer, or by more remote means received benefit therefrom, was liable to pay his proportional part of the expense of constructing and repairing the same, to be ascertained as therein provided. In the city of Boston not less than one-quarter part of the expense was to be paid by the city, and not included in the charge made to those using such sewers. Section 7. St. 1873, c. 205, provided, in section 1, that "the board of aldermen of the city of Boston may, for the purposes of sewerage and drainage, take and divert the water of any streams or watercourses within the limits of said city, and devote the same to the purposes aforesaid; and may take all necessary land to widen, deepen, or straighten the channel of such water courses, and pave, inclose, and cover the same." Section 2 provided for the ascertainment and recovery of damages by those who might suffer them. The statute of 1873 was not intended to repeal the then existing statutes, or to deprive the aldermen of any power which they then had in regard to the subject. It conferred an additional power, and is to be construed in connection with, and as supplementary to, the existing legislation. Its object was to enable the aldermen, for the purposes of drainage and sewerage, to take and divert the waters of any brook in the city, and this, whether the sewer in which they were used, or to which they were diverted, was or was not of benefit to the owners thereof. It had been held in Bennett v. New Bedford, 110 Mass. 433, that a structure intended to convey the waters of a natural stream, as well as to be used as a common sewer, did not thereby lose its character as a common sewer. While authority was not needed to conduct water, either that of a natural stream or of the surface, through a common sewer, the right to take and divert a stream for the purpose of sewerage, and devote it thereto, was deemed to require additional legislation. When thus taken and diverted, the authority was given properly to prepare the channel through which it would pass, by taking the necessary land, and by properly paving, covering, and inclosing it. The power to construct a sewer was not given by the statute of 1873. The authority to do that rested upon and existed by the previous legislation. It is argued that the statute of 1873 contemplated that no assessment would be made on the owners of abutting

estates, not merely because no provision was made therefor, but from the character of the act itself. Assuming this argument to be correct, it is so because, as the object of the statute was to invest the aldermea with the power to take and divert water for the purpose of sewerage, it could not be supposed that ordinarily this could be attended with any advantage to the owner of the water or water rights thus interfered with. The act would permit the waters of a stream to be diverted and devoted to sewerage purposes when the owner thereof, owing to many causes, might receive no benefit from the sewer through which it was conducted. The power to construct a sewer, and the power to divert the waters of a brook for sewerage purposes, and to provide a proper channel for the purpose, both existing, it was competent to arrange for a single structure which should serve both as a conduit for the brook and as a common sewer, and, so far as it was needed, and existed as a common sewer, to assess upon those entering and using it, or benefited thereby, their proportional part. The board undertook by its adjudication to provide for such a structure. It laid out a common sewer, took the land therefor, assessed the damages, and, as a part of its order, took and diverted the brook for the purposes of the sewer. The petitioner is within that class of persons benefited by it as a sewer; and, so far as the structure may fairly be considered such, he should bear his proportional part thereof. So far as it was constructed for an additional purpose, there has been no attempt to assess him. Where a single structure is thus made for two distinct objects and purposes, there is a difficulty in ascertaining how much one ought properly to bear who is liable to assessment for expenditures only so far as a single object or purpose is concerned. But this difficulty is not insuperable, nor such as to compel us to hold that an assessment should be relinquished unless two structures are made where one would serve the purpose. The rule adopted by the aldermen does not leave the petitioner any just ground of complaint. He was assessed for that expenditure which was necessary for the structure as a sewer. Using the actual outlay, as far as possible, as the measure of value in their determination, the board of aldermen adjudicated what was the cost of an ordinary sewer in the Dorchester Brook valley, such as would have been required had a common sewer been all that was there needed, and the purpose of which was entirely satisfied by the structure which had been built, while other objects were also attained by it. Upon this basis, having deducted the one fourth which the city was to bear, they made their assessment. The rule adopted appears to be entirely fair, and if, acting on this basis, the petitioner has been overassessed, his remedy is not by a petition for a writ of certiorari. Petition dismissed.

NYE V. CHACE.1

(Supreme Judicial Court of Massachusetts. Norfolk. May 11, 1885.)

PROMISSORY NOTE-CONSIDERATION.

Where, in suit by the payee against the maker of a note, defendant claims that the note was a gift, without consideration, and plaintiff testifies that she had a claim against defendant's wife, of whose estate he was administrator, and that defendant gave the note in settlement of that claim, it is proper to instruct that, if defendant intended the note as a gift, it was without consideration, unless by his words and acts he gave plaintiff cause to believe, and she was thereby led to believe, that the note was given in settlement of her claim.

Exceptions from superior court, Norfolk county; MASON, Judge.

Action on a note by Ida C. Nye against Reuben A. Chace. Judgment for plaintiff. Defendant excepts. Exceptions overruled.

F D. Ely, for plaintiff. C. F. Perkins and R. C. Lincoln, for defendant.

MORTON, C. J. The only defense relied upon at the trial was that the note in suit was a gift from the defendant to the plaintiff, and that there was no legal consideration for it. The plaintiff and the defendant were the principal witnesses, and they contradicted each other. It was for the jury to determine which of them was to be believed. If the jury believed the plaintiff, there was evidence to justify the finding that there was a sufficient consideration. It tended to show that the plaintiff had a claim against the defendant's wife, of whose estate he was the administrator and sole distributee; that the note was given in settlement of that claim; and that the plaintiff forbore to prosecute her claim against the estate until it was barred by the statute of limitations. The defendant asked the judge to instruct the jury that, "if the defendant intended the note to be a gift to the plaintiff, it was given without any legal consideration therefor, although the plaintiff may have supposed the note to be in payment for a prior indebtedness." The court gave the instruction, with the qualification, “unless the defendant, by his words or conduct, gave the plaintiff reasonable cause to believe, and the plaintiff was thereby led to believe, that the note was given in settlement of her claim against the estate of the wife for services, or of some claim in controversy between the plaintiff and the defendant." The instruction given was sufficiently favorable to the defendant. The question for the jury was whether the note in suit was given in settlement of the plaintiff's claim, or was a mere gratuity. If the plaintiff presented her claim, and the defendant gave his note, and by his words or acts induced her reasonably to understand that it was given in settlement of her claim, he is bound by his words or acts, and cannot afterwards defend upon the ground that he had a concealed intention to regard it as a gift. Exceptions overruled.

This case, filed May 11, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

WHITEHEAD & ATHERTON MACH. Co. v. RYDER. 2

(Supreme Judicial Court of Massachusetts. Middlesex. May 16, 1855.) SALE-WARRANTY-BREACH-MEASURE OF DAM

AGES.

1. Where a purchaser orders a certain machine by letter, stating that it is to do specific work, and the seller answers, acceptingthe orders, and stating, "You may rely on having a first-rate machine, which will do your work in a satisfactory manner," these last words are not mere words of commendation, but are to be construed as part of the contract, and constituting a warranty.

2. Where a machine is purchased from an English manufacturer under a warranty that it will do certain work in America, the measure of damages for breach of the warranty is the difference between the contract price of the machine and its value in America to the purchaser, including expenses incurred by the purchaser for alterations and changes made on the machine in order to get it to do the work for which it was purchased.

Appeal from superior court, Middlesex county; ROCKWELL, Judge.

Action by the Whitehead & Atherton Machine Company against William Ryder for $549.63 damages for breach of warranty of a fluting machine purchased by plaintiff of defendant. Defendant set off the price of the machine and interest, amounting to $944.15. The order and acceptance were as follows:

"Lowell, Mass., July 9, 1881. Mr. R. N. Cottrel, Dobroyd House, Bolton, England, now at Montreal, Canada- Dear Sir: You will please make for us one of your latest improved eight-tool fluting machines, so arranged as to flute both card and spinning rolls. The price of the same to be £175, (one hundred and seventy-five pounds,) boxed, and delivered free on board at Liverpool. The above price to include one full set of working tools and index gears necessary to cut the abovementioned rolls. We are in great want of the above machine, and trust you will push it forward without delay, and let us have it sure in the two months after receipt of order, as promised. Please acknow!edge receipt of this, and oblige, Very truly yours, A. T. ATHERTON, Treasurer.

"Montreal, July 28, 1881. Dear Sir: I am extremely obliged for your order for the fluting machine, which came to hand yesterday. It shall be packed and delivered in Liverpool, complete, with one set of eight tools and one set of eight index plates, price £175 net. You may rely upon having a first-rate machine, which will do your work in a satisfactory manner. It shall be put in hand at once and forwarded as soon as ever possible. Yours, very truly, ROBT. N. COTTREL."

Plaintiff introduced evidence to show that the machine entirely failed to do the work it was intended to do, and that plaintiff spent money in making alterations and changes, but that still it did not work. Defendant requested the following instructions, which were refused:

This case, filed May 16, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

"(1) The contract between the parties being in writing, expressed in the order for the fluting machine, sent by the plaintiff's treasurer on July 9, 1881, and accepted by the defendant in his reply of July 28, 1881, no parol evidence of conversations between the plaintiff's agent and the defendant is admissible to control or modify the terms of said written order; it being agreed by the parties that the defendant literally complied with the written order, by delivering on board ship, in the harbor of Liverpool, in good order and condition, the machine and appliances called for by the terms of said written order, to wit, one of his latest improved eight-tool fluting machines, so arranged as to flute both card and spinning rolls, such as are used in England. (2) The language of the defendant's letter, containing his acceptance of the order, expresses no warranty that the machine would flute the plaintiff's card rolls. The acceptance was completed, and the contract effected, in the first para. graph of defendant's letter of July 28. The words following the acceptance, 'You may rely upon having a first-rate machine, which will do your work in a satisfactory manner,' do not constitute a warranty, and formed no part of the inducement to the purchaser, for they are subsequent to the completion of the contract, and are gratuitous and without consideration. (3) If the conversation between the defendant and the plaintiff's superintendent in its shop, prior to the date of the order, is admitted in evidence, as affecting the contract, unless the jury are satisfied that the defendant fully understood that the plaintiff's rolls differed materially from the English rolls, and, so understanding, agreed to make the machine specially adapted to flute the plaintiff's rolls, then no agreement was implied in accepting the plaintiff's order that the machine should meet these differences. In this particular the minds of the parties did not concur and meet. (4) If the court or jury shall find a breach of warranty by the defendant in the sale of the machine, yet, the contract not being legally rescinded by the plaintiff, the measure of damages recoverable by the plaintiff for such breach of warranty is not the amount of outlays by the plaintiff for custom dues, freight charges, or alterations upon the machine; but the measure of damages fixed by law is the difference in value at the point of delivery of the machine, namely, at Liverpool, between the contract price, (that being the only evidence of value,) and the actual market value of the machine as furnished by the defendant." The judge instructed the jury that the measure of damages for the breach of warranty was the difference between the contract price and the value of the machine then and where it was, and that in computing the damages the jury might consider what plaintiff had expended on the machine. Judg ment for defendant for $292.26. Defendant appeals. Affirmed.

G. H. Stevens, for plaintiff. D. Peabody and A. Eastman, for defendant.

HOLMES, J. The defendant's exceptions disclose nothing sufficient to enable us to v.31N.E.no.11-47

deal with the first or third request for rulings. It does not appear that the parties agreed as alleged in the first, or that any evidence was offered to control or modify the contract to be gathered from the letters. We rather infer, so far as we can infer anything, that the conversations put in went simply to show that the defendant knew what the plaintiff's work was before the letter relied on by the plaintiff was written. We see no ground for supposing that the case goes beyond the principles laid down in Stoops v. Smith, 100 Mass. 63; Miller v. Stevens, Id. 518; Keller v. Webb, 125 Mass. 88, 126 Mass. 393; and Ollivant v. Bayley, 5 Q. B. 288.

The second ruling requested was wrong. The defendant's letter in reply to the plaintiff's order must be taken as a whole. It cannot be argued seriously that the con tract was concluded by the words of acceptance in the first paragraph, and that whatever followed came too late. If the last sentence had contained a stipulation in favor of the defendant, -if, for instance, it had demanded a larger price,-obviously the so-called acceptance would have been a counter offer, which would have had to be accepted in its turn before a contract was made. The same general principle would apply if the so-called acceptance should offer more favorable terms to the buyer. When, however, as here, the order is consistent on its face with the term first appearing in the acceptance, oral testimony showing that the order contemplated that term may lead to the conclusion that no further communication was necessary to conclude the contract. But whether it was or not is immaterial in this case, for both parties agree that a contract was concluded in the terms of the letters. This being so, we cannot say that the words, "You may rely upon having a first-rate machine, which will do your work in a satisfactory manner," were not more than mere words of commendation, or that, construed with reference to the facts, they did not constitute a warranty. When a representation of fact is made as an inducement to an oral purchase, no doubt the question whether it was relied on as a ground for purchasing may be material to the determination whether it is to be taken to enter into the contract as a term or warranty. when the contract is reduced to writing, the question whether certain expressions constitute a warranty is a matter of construction, and does not depend upon the representation or promise which they embody having afforded a preliminary inducement to entering into the contract. Every expression which by construction is a term of one party's undertaking is presumed to be relied on by the other when he makes the contract. Edwards v. Marcy, 2 Allen, 486, 489.

But

There remains the question of damages. The fundamental principle in cases of contract is that the plaintiff is entitled to recover such damages as reasonably may be supposed to have been contemplated by the parties, when making the contract, as the probable result of its breach, and as within the risk assumed by the defendant.