dence that the words "Mansion House Ice Cream Company" were on the automobile which injured the plaintiff's intestate and that it was operated by one Giganti who was employed by the defendants. It was a "White truck" and "there were a couple of barrels on it." In answer to the question "if he [Giganti] was out with an automobile truck of the Mansion House Ice Cream Company you would say that he was about your business," one of the defendants answered, "Naturally, yes." This was some evidence that at the time of the accident Giganti, who was in charge of the defendants' automobile, was in the defendants' employment and was engaged in their business. Heywood v. Ogasapian, 224 Mass. 203, 112 N. E. 619. The plaintiff's intestate was riding on an automobile truck which was proceeding along the northerly side of Cambridge street in Cambridge, in front of the defendants' automobile. There was evidence that the left hand wheels of the truck on which he was were on the right hand rail of the outward bound car track. The plaintiff's intestate got off the truck and started to walk in a diagonal direction across Cambridge street toward the southerly side. He looked toward First street, toward the point where other vehicles were coming in the opposite direction. Giganti attempted to pass the truck on which the plaintiff's intestate had been riding. "When the Buckley boy was about within six feet of the gutter, the witness yelled to him." He then started to run and was struck about two feet from the curbstone of the southerly side of Cambridge street. [2] The intestate's due care was for the jury. He looked in the direction from which vehicles might be expected. The street was paved with wooden blocks and the jury could say that the defendants' automobile made little or no noise and that no signal of its approach was given. The boy was near the curb when struck, and on that side of the street where the defendants' automobile going towards Cambridge, would not be expected. Duggan v. Bay State St. Ry., 230 Mass. 370, 119 N. E. 757; Mullin v. Fallon, 229 Mass. 214, 118 N. E. 233; Miller v. Flash Chemical Co., 230 Mass. 419, 119 N. E. 702. [3] There was evidence that the day was clear, that no horn was sounded, and as the boy started to run toward the sidewalk, "the automobile started toward that side that he was running to," and there was evidence from one witness that when the boy was walking, the defendants' automobile "turned to the left and went after him and kept going after him until it finally caught him, about one foot from the left hand curbstone on Cambridge street." There was ample room to pass, without running down the plaintiff's intestate. On this evidence the defendants' negligence was plainly a question for the jury to decide. Exceptions overruled. In proceedings for probate of will, so far as conduct of person charged to have unduly influenced testator may have affected his credibility as a witness, admission of evidence thereof was within discretion of trial court. 3. TRIAL 250 — INSTRUCTION-EVIDENCEUNDUE INFLUENCE. In proceedings for probate of will, contested for undue influence, court properly refused to instruct as to length of time within which will should be presented for probate by person having its custody, a matter without pertinency to issues on trial and evidence disclosed. Exceptions from Superior Court, Middlesex County; William Cushing Wait, Judge. Proceedings for probate of the will of James Ford by John W. Fisher and others, executors, contested by Frederick J. Ford. From decree of the probate court allowing the will, contestant appealed to the Supreme Judicial Court, which ordered issues allowed by it to be tried by a jury in the superior court, and appellant, the contestant, excepts. Exceptions overruled. Patrick J. Duane, of Waltham, for appellant. Loton D. Jennings, of Boston, for appellees. 3. BROKERS 86(4) — PROCURANCE OF PURCHASER-SUFFICIENCY OF EVIDENCE. In broker's action for commission for selling mill property, owned by defendants, in part for cash and in part for stock, evidence held to warrant finding that sale was made by a defendant, for him and the others, to a purchaser procured by plaintiff and the interests represented by such purchaser. 4. BROKERS 86(1) EMPLOYMENT BY CORPORATION OR STOCKHOLDER-SUFFICIENCY OF EVIDENCE mill property owned by defendants, evidence In broker's action for commission for selling held insufficient to show that any contract with plaintiff was between him and mill company, not defendants as individuals, owners of stock, though a defendant personally employed plaintiff. 5. BROKERS 51-RIGHT TO COMMISSION. Broker earns commission where he brings property which he is employed to sell to attention of third person, and then turns that perresult of negotiations so begun. son over to employer, and property is sold as 171(8)-RIGHT 6. PRINCIPAL AND AGENT PER CURIAM. [1-3] These exceptions relate to the trial in the superior court of the issue among others whether the will of James Ford was procured to be made through the undue influence of one Harwood. There was no error in excluding the offers in various forms to show that Harwood at the time of the making of the inventory for special administrators attempted to have the Where stockholder in mill company did not estate of the deceased appraised at a great deal lower figure than there was evidence to sell property of company, and such other did authorize another stockholder to employ broker tending to warrant. Occurrences of this na- not so undertake to employ broker, but employture after the death of the testator had no ed on his own behalf, fact that first stockholder bearing upon the question whether undue in- derived benefit under employment of broker, fluence had been exercised several years ear-which resulted in sale of property, does not renlier, at the time when the will was executed. der her liable. So far as such conduct may have affected the credibility of the witness, if at all, its admission was within the discretion of the trial court. The refusal to instruct the jury For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 121 N.E.-34 7. JUDGMENT 238-CODEFENDANTS - RE COVERY AS TO ONE ALONE. Under Rev. Laws, c. 177, § 6, in broker's action for commission against two defendants, one of whom alone was liable, such one was not entitled to directed verdict for him on ground action was brought against him and another defendant jointly, while case made out was against him alone. This meeting took place at the Worcester Club on the evening of the day on which the request was made, namely, April 2, 1912. Negotiations for the sale of the property were begun between Eugene and Smith at that meeting. Later on Smith introduced Exceptions from Superior Court, Middle- Eugene to his principals, Kidder, Peabody & sex County; J. F. Brown, Judge. Action by Gordon A. Johnstone against John Cochrane and others. Verdict was directed for the two surviving defendants, and plaintiff excepts. Exceptions ordered overruled so far as one defendant is concerned, but ordered sustained so far as the other is concerned. Guy C. Richards, of Salem, and Addison R. Pike, of Boston, for plaintiff. Fredk. G. Katzman, of Hyde Park, and John P. Vahey and Philip Mansfield, both of Boston (J. R. McCoole, of Dedham, of counsel), for defendants. LORING, J. This is an action to recover a commission for the sale of the property (with an exception which need not be stated) of the Danielsonville Cotton Company. The defendants were John, Pauline and J. Eugene Cochrane. It appeared at the trial that John died after this action was brought. On the evidence introduced at the trial the presiding judge directed the jury to return a verdict for the other two defendants and the case is here on an exception to that ruling and upon one to the admission of certain evidence introduced against the objection of the defendants. We do not find it necessary to pass upon the question of evidence for we are of opinion that laying that evidence on one side the jury were warranted in finding for the plaintiff as against the defendant Eugene. another trial it is not likely that the evidence admitted under the defendants' exception will be presented in the same form. At Co., and the negotiations begun between Eugene and Smith were carried on between Eugene, Smith and Kidder, Peabody & Co., until the latter part of May or the early part of June when Kidder, Peabody & Co. agreed to buy the property for $250,000; $160,000 to be paid in cash and $90,000 to be paid in the second preferred stock of the Danielson Cotton Company of Massachusetts, a corporation organized by Kidder, Peabody & Co. to take title to and operate the mill. The conveyance to the new corporation was made on June 26, 1912. The $160,000 in cash was paid to the old corporation by Kidder, Peabody & Co., and the old corporation paid it to Marshall Field & Co. in payment of its debt to that firm; the $90,000 second preferred stock was distributed to and among Pauline, Eugene and the personal representatives of John Cochrane as the owners of the stock of the old corporation. [1] The defendants' first contention is that by the terms of the plaintiff's employment by Eugene the plaintiff was to be paid a commission only if he procured a sale for $250,000 in cash, and the sale which was made was for $160,000 in cash and $90,000 in the second preferred stock. There is nothing in the evidence which even gives color to this contention. The evidence showed that Eugene employed the plaintiff to find a purchaser for the property and agreed at the time to pay him the usual commission. At that time he told the plaintiff that he intended to ask $300,000 for the property and the plaintiff told him that that price would be prohibitive. Thereupon Eugene asked the plaintiff what he thought the property could be sold for and the plaintiff told him: "Possibly $250,000 would be the maximum that could be got for the property." Later on while the negotiations with Smith were going forward Eugene suggested to the plaintiff that the price should be changed to $200,000 and the plaintiff then told Eugene that if the property could be sold for $200,000 it could be sold for $250,000. The defendants' main contention in this regard is founded upon an answer of the plaintiff made during his cross-examination. But in quoting the answer the defendants' counsel has omitted the last seven words. The record states that on cross-examination the plaintiff testified: There was a great deal of confusion in the evidence on many of the details of the transaction here in question. We do not find it necessary to go into or state these details at length. The jury were warranted in finding the following to be the facts of the case: The plaintiff was the agent in charge of the Danielsonville Cotton Company situate at Danielson, in Connecticut. The original defendants were the owners of all the corporate stock of that company. In April, 1911, the defendant Eugene Cochrane asked the plaintiff to find a purchaser for the property and agreed to pay him the usual broker's commission if he was successful in so doing. A year later the plaintiff brought the property to the attention of Frank Bulkley Smith. Smith came to Danielson and made a thorough inspection of it. At the conclusion of his Inspection he asked the plaintiff to put him in communication with his (the plaintiff's) principal. Thereupon the plaintiff arranged for a meeting between Smith and Eugene. is nothing in this testimony which supports "The plaintiff always held it and offered it at $250,000 and understood it was to be $250,000 cash, the best we could get for it.'" Even without the last seven words there the defendants' contention and the last seven amount to Marshall Field & Co., and that the words negative it. [2, 3] The defendants' second contention is founded upon a statement made by Eugene in his direct examination. In his direct examination Eugene testified that he"saw Mr. Winsor [of Kidder, Peabody & Co.] at his house about six weeks after the Union Club conference. There had been a complete break in the negotiations; they started all over again. He saw Mr. Smith again at Kidder, Peabody's on the first of June." "The Union Club conference" was a meeting between Smith and Eugene at the Union Club in Boston about two weeks after the first meeting at the Worcester Club on the evening of April 2. In the first place the jury were not bound to believe this testimony. Lindenbaum v. N. Y., N. H. & H. R. R. Co., 197 Mass. 314, 84 N. E. 129. In the second place it was directly contradicted by Eugene himself in another part of his testimony. After stating that he met Mr. Smith at the Worcester Club on April 2, 1912, Eugene testified that: "From that time on he had the negotiations for the sale of the plant personally with Mr. Smith and the interests that he represented who finally purchased." Apart from this testimony of Eugene it is apparent from the details of Mr. Smith's visits to the plant and the conferences that took place which are set forth in detail in the testimony but which we have not found it necessary to refer to at length, that the jury were warranted in finding that the last statement of Eugene set forth above was the fact. Under these circumstances it is not necessary to consider what the result would have been as matter of law had it been the fact that there had been "a complete break in the negotiations." [4] The defendants' next contention is that if there was any contract with the plaintiff it was a corporate one made between the plaintiff and the old corporation the Danielsonville Cotton Company. The fact that the property to be sold was owned by the corporation and not by Eugene does not of necessity make the employment of the plaintiff to procure a sale of the property an employment by the corporation. A person who does not own property may, if he chooses, employ a broker to get a purchaser for it. The fact that he does not own the property is a circumstance bearing upon the question whether he did in fact employ the broker to find a purchaser for the property. But this is the only bearing which that fact has. The matter was discussed at length in Monk v. Parker, 180 Mass. 246, 63 N. E. 793, and what was said there need not be repeated here. It appeared in the evidence at the trial that the former corporation (the capital stock of which was owned by Eugene, his sister and his father) had become indebted in a large occasion of Eugene's employing the plaintiff to find a purchaser for the property was because Marshall Field & Co. were pressing for the payment of this debt. In the end the whole of the $160,000 paid in cash by Kidder, Peabody & Co., had to be and was applied by the old corporation in the payment of this debt to Marshall Field & Co. Under these circumstances there was nothing significant much less conclusive in the fact that the property for which Eugene asked the plaintiff to find a purchaser was owned by the corporation and not by him. The defendants have urged in this connection that the paper on which Eugene wrote to the plaintiff when he did write him, was corporate paper. It was corporate paper. But it was not the corporate paper of the Danielsonville Cotton Company. It was the corporate paper of the Cochrane Manufacturing Company, another corporation which it appeared in evidence was owned by the same persons who owned the Danielsonville Cotton Company. And it is the fact that every letter written to the plaintiff was signed by Eugene personally and never as an officer of either corporation. The last fact relied upon by the defendants in this action is that on cross-examination the plaintiff was asked this question: "You were instructed by Mr. Cochrane, in his capacity of treasurer and manager of this Danielsonville Cotton Company, to show the plant to anybody who came down there to see it, after you first learned from any source that they were going to run the plant's stock out, close it up and sell it?" And that the plaintiff answered: instructions to show Mr. Nicholson, and he was "No, I didn't have such instructions. I had to send his customers with a card of identification so as to know it was his customer and not a customer of some other broker." The defendants' contention based upon this question and answer is that: "The failure of the plaintiff as indicated above to repudiate the notion that he was dealing with Mr. J. Eugene Cochrane in his official capacity shows pretty strongly that what we are contending for is true." There is nothing in this suggestion. [5] It is settled by many decisions (and among them Desmond v. Stebbins, 140 Mass. 339, 5 N. E. 150, and Willard v. Wright, 203 Mass. 406, 89 N. E. 559) that a broker earns a commission where he brings the property which he is employed to sell to the attention of a third person and then turns that person over to his employer and the property is sold as the result of negotiations between the two so begun. We are of opinion that the plaintiff made out a case against the defendant J. Eugene Cochrane. [6] We are, however, of opinion that the Action by Marie E. Rudler against the Naplaintiff did not make out a case against tional Council of Knights and Ladies of Sethe defendant Pauline Cochrane, the other curity. Judgment for plaintiff, and defenddefendant left after the suit had abated ant appeals. Affirmed. as against John Cochrane by his death. There was no evidence that Pauline authorized Eugene to employ the plaintiff as a broker in her behalf. Nor was there any evidence that Eugene undertook to employ him in behalf of Pauline. The fact that she derived benefit under Eugene's employment of the plaintiff does not make her liable. So far as the defendant Pauline is concerned the ruling directing a verdict for the defendants was right. [7] The defendant Eugene Cochrane has insisted that the ruling directing a verdict for him was right even if he would have been liable had he been the sole defendant. This contention is based on the ground that the action here in question was brought against Pauline and him jointly and the case made out in the evidence was a case against him alone. He relies in this contention upon Tuttle v. Cooper, 10 Pick. 281. But soon after the decision of this court in that case"the Legislature passed a statute, which, with occasional modifications, has since continued in force authorizing the plaintiff in an action of contract against two or more defendants, to take judgment against those though less than all sued, who should appear upon the trial to be liable." That statute is now R. L. c. 177, § 6. The cases of Leonard v. Robbins, 13 Allen, 217, and Monk v. Parker, 180 Mass. 246, 63 N. E. 793, are cases where this statute was applied. The result is that the exceptions to the ruling must be overruled so far as the defendant Pauline Cochrane is concerned and sustained so far as the defendant J. Eugene Cochrane is concerned. So ordered. (69 Ind. App. 175) NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. RUDLER. (No. 9683.) J. E. Martin, of Indianapolis, for appellant. Charles T. Hanna and Thomas A. Daily, both of Indianapolis, for appellee. ENLOE, J. This is an action upon a beneficiary certificate brought by the appellee, Marie E. Rudler in which she seeks to recover which she claims to be due her as the bene judgment against the appellant, for money ficiary named in said certificate. The original amended complaint was in three paragraphs, to which were afterward added three additional paragraphs. Appellant filed separate and several demurrers to each of these six paragraphs of complaint. Appellant's demurrer was sustained as to the third and sixth paragraphs of such amended complaint, and overruled as to the first, second, fourth, and fifth paragraphs thereof. To these four paragraphs of complaint the appellant answers in two paragraphs, to which two paragraphs of answer appellee successfully demurred. Appellee then by leave of court dismissed her first and fourth paragraphs of amended complaint, leaving the second and fifth paragraphs thereof upon which the cause should be tried. Appellant was then ruled to plead or answer over as to said second and fifth paragraphs of amended complaint, but refused so to plead or answer over and elected to stand on his said paragraphs of answer and each of them. The court thereupon rendered judgment on the pleadings in favor of appellee, for the sum of $738.88 with costs, from which judgment this appeal has been duly prosecuted. The appellant has assigned for error in this court: First. The amended complaint of appellee does not state facts sufficient to constitute a cause of action against appellant. Second. The court erred in overruling the (Appellate Court of Indiana, Division No. 1. demurrer of appellant to the second para Jan. 10, 1919.) TIME 10(10) — MUTUAL BENEFIT INSUBANCE-PAYMENT IN TIME. Where it did not appear that mutual benefit association made provisions for payment of dues and assessments on Sunday, payment on first day of month where last day of preceding month falling on Sunday was last day for payment under by-law rule providing that member failing to make payment on last day of month shall stand suspended, was a payment "in time" within policy and by-laws. graph of the amended complaint of appellee. Third. The court erred in overruling the demurrer of appellant to the fifth additional paragraph of the amended complaint of appellee. Fourth. The court erred in sustaining the demurrer of appellee to the first paragraph of the answer of appellant. Fifth. The court erred in sustaining the demurrer of appellee to the second paragraph of the answer of appellant. Each and all of the errors assigned in this Appeal from Superior Court, Marion Coun- case center around one single question, to ty; T. J. Moll, Judge. wit: Where the last day for payment of in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |