Eben D. Jordan and Edward J. Mitten to build and maintain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street, and to serve as a fire escape.

Section 2. Any permit given by the board of street commissioners of the city of Boston, as provided in section one of this act, shall be upon the express condition that the person or persons receiving such permit shall pay a fee for the same, the amount of said fee to be determined by the board of street commissioners. The board of street commissioners may further impose such other conditions and restrictions in granting said permit, as to the Board may seem wise.

Section 3. No bridge built across said street, under a permit granted as provided in the preceding sections of this act, shall be constructed or maintained at a height less than thirty feet above the grade line of said street; and no part of the bridge or its supports shall rest upon the surface of the street.

Section 4. Any person whose property is damaged by reason of the construction of any bridge permitted to be built as provided in the preceding sections of this act may have damages therefor determined by a jury upon petition to the superior court therefor filed within one year after the permit for the erection of such bridge is approved by the mayor. Whatever damages are found by the jury, under the provisions of this section, shall be paid by the person or persons to whom the permit has been granted by the board of street commissioners.

Section 5. This act shall take effect upon its passage.

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having received the questions contained in your order of June 2, 1911, a copy of which is hereto annexed, respectfully answer as follows:

It is a familiar rule of law in this Commonwealth that the Legislature may authorize a board of public officers in a city or town to permit and license, as a matter of local administration, any act or proceeding, such as is referred to in these questions, that the Legislature itself could authorize or license by the

enactment of a statute. Brodbine v. Revere, 182 Mass. 598. Sprague v. Dorr, 185 Mass. 10, 11. Commonwealth v. Crowninshield, 187 Mass. 221, 225. Commonwealth v. Sisson, 189 Mass. 247, 252. Welch v. Swasey, 193 Mass. 364, 375, 376. Sprague v. Minon, 195 Mass. 581, 583. Commonwealth v. Kingsbury, 199 Cambridge Board of Health, 200 Mass. 474, 481. Codman v. Crocker, 203 Mass. 146, 155. Commonwealth v. Maletsky, 203 Mass. 241, 247. Dewey v. Richardson, 206 Mass. 430, 433.

Mass. 542, 546. Wyeth v.

We think that a statute such as is mentioned in these questions would not be invalid as class legislation.

The law covering the matters to which these questions relate was very fully stated in an Opinion of the Justices communicated to the House of Representatives on April 17, 1911, ante, 603, which appears by your order to be before the Honorable Senate.

It is elementary doctrine that such an amendment as is proposed, providing that the damages to persons injured in their property shall be paid by the grantees of the permit, who are private parties, would not secure compensation to such persons in the manner required by the Constitution and as to them, in reference to damages to which they might be entitled under the Constitution, would render the statute invalid. It is equally elementary law that cities and towns are not liable in damages to persons for injuries received from unsafe conditions, while travelling on a highway, unless there is a statute imposing a liability for such conditions.

Without determining whether, in view of numerous decisions of this court and published Opinions of the Justices, the questions submitted to us are of a kind that ought to be answered as "important questions of law" within the meaning of the Constitution, we give this opinion, and we do not deem it necessary to answer more particularly.

MARCUS P. KNOWLTON.

JAMES M. MORTON.

JOHN W. HAMMOND.

WILLIAM CALEB LORING.

HENRY K. BRALEY.

HENRY N. SHELDON.

ARTHUR PRENTICE RUGG.

INDEX.

ACCOMPLICE.

Effect of acts and testimony of conspirators at trial of indictment jointly
charging several with conspiracy, see CONSPIRACY, 2, 3.

ACCOUNTING.

Suits in equity for accounting, see EQUITY JURISDICTION, 5-11; AGENCY,
2, 4.

ADMINISTRATOR.

See EXECUTOR AND ADMINISTRATOR.

AGENCY.

Existence of Relation.

1. At the trial of an action where a material issue is, whether the plaintiff
was employed by the defendant, if there is evidence tending to show that
the plaintiff, before going to work, asked the defendant, who "was en-
gaged in building three houses on a parcel of land, the title to which stood
in his wife's name,"
‚” “Are you the boss?" and that, receiving an affirma-
tive reply, he asked further "Is it all right to go to work?" to which the
defendant replied, "Sure, I want three or four men. This is a hurry
job"; that the defendant furnished to the foreman of the job pay enve-
lopes which the foreman handed to the men and that the defendant gave
some directions as to the way in which the work should be done, the jury
is warranted in finding that the plaintiff was in the employ of the defend-
ant. White v. Newborg, 279.

Attorney at law for person agreeing to sell land, who, with consent of client,
acted for purchaser in examination of title, was held under circumstances
to have waived for purchaser requirement that papers should be passed
at certain time and place although contract of sale provided that any
change of time and place must be by agreement in writing between
parties, see Contract, 15.

Scope of Authority.

One, who is invited or seeks to make contract with municipal corporation,
is chargeable with knowledge of extent or lack of authority of corporation

Agency (continued).

and its various officers to make such contract, see MUNICIPAL CORPORA-
TIONS, 1.

Attorney at law for person agreeing to sell land, who, with consent of client,
acted for purchaser in examination of title, was held under circumstances
to have waived for purchaser requirement that papers should be passed at
certain time and place although contract of sale provided that any change
of time and place must be by agreement in writing between parties, see
CONTRACT, 15.

Ratification of Acts of Agent.

Acts of manager of glass manufacturing corporation as to contract for
manufacture and sale of bottles, payment of price of which was to be
guaranteed by certain individuals, which, when ratified by corporation,
together with delivery to such manager of contract signed by guarantors,
were sufficient to constitute contract of guaranty, see GUARANTY, 1.

Duty of Agent to Principal.

2. If an agent in charge of property belonging to his principal takes a secret
profit or commission in regard to the matter in which he is employed, he
loses his right to his agreed compensation, although the result may be to
give the principal the benefit of valuable services rendered by the agent
without compensation. Little v. Phipps, 331.

3. If an agent in charge of property belonging to his principal takes a secret
commission, by which he loses his right to compensation for his services,
he cannot avoid this result by showing that it was the custom for agents
to take such commissions without the knowledge of their principals, be-
cause such a custom would be contrary to sound public policy. Ibid.
4. In a suit in equity for an accounting, brought by the owner of certain
real estate against his agent, in whose hands the property had been placed
for management and sale at a profit, with an agreement that on the sale
of the property by the defendant as agent, after paying the incidental ex-
penses, the plaintiff should be paid the money advanced by him for the
purchase of the property with interest at the rate of six per cent and that
the net balance should be divided equally between the plaintiff and the
defendant, it appeared that the defendant sold the property at a profit,
but that in rendering an account to the plaintiff of incidental expenses he
charged $50 as paid to an attorney for examining the title, when in fact
he had paid the attorney only $25. Held, that this secret discount, whether
taken with a corrupt intent or not, was a failure of duty on the part of the
defendant which deprived him of his right to retain his stipulated portion
of the net proceeds of the sale or to receive any compensation for his ser-
vices. Ibid.

There was held to be no inconsistency or impropriety in attorney at law
acting for plaintiff in action for personal injuries against certain person
and, after that person's death, for administrator of his estate in procuring
property, part of which was used to pay client's claim, see ATTORNEY AT
LAW, 1.

Liability of Principal to Agent.

Agency (continued).

Agent's commission.
5. Where, at the trial of an action by a broker for a commission for procur-
ing a sale of merchandise for the defendant, it appeared that the commis-
sion was agreed upon and that the contract of sale was made; but it also
appeared that a part of the merchandise was not delivered because the
customer refused to accept it, and the defendant contended that no com-
mission was due the plaintiff as to such undelivered merchandise because
of the course of dealings between the parties and introduced evidence
tending to show that on previous occasions of sales to other customers
procured by the plaintiff he had not received commissions for such mer-
chandise as was not delivered, the plaintiff should be allowed to testify as
to peculiar facts regarding such previous occasions in order to rebut the
inference which otherwise might be drawn from the fact that in those
instances he did not receive his commissions. Bartow v. Parsons Pulp &
Paper Co. 232.

6. At the trial of an action by a broker for a commission for procuring a
sale of merchandise for the defendant, it appeared that the commission
was agreed upon and that the contract of sale was made; but it also
appeared that a part of the merchandise was not delivered because the
customer refused to accept it, and the defendant contended that no com-
mission was due to the agent as to such undelivered merchandise because
of the course of dealings between the parties, and introduced evidence
that on previous occasions of sales to other customers procured by the
plaintiff he had not received commissions for such merchandise as was not
delivered, and the plaintiff's counsel, in questioning the plaintiff regarding
one of such occasions, asked what were the " reasons why he did not
then claim a commission. In reply, the plaintiff stated in substance that
the failure of the defendant to deliver the merchandise on that occasion
was due to freight car complications which were no fault of the defend-
ant's, and that he, the plaintiff, "told [the defendant he] need not ship it,"
and added, “Under the circumstances I thought it would be very poor
taste on my part to demand a commission." The defendant excepted to
the question and to so much of the answer as gave a "description . . .
of opinions and feelings with regard to the facts," and the plaintiff's
counsel stated that he was "willing to have such portions of the answer
stricken out." The defendant made no motion for such purpose. Held,
that under the circumstances the exceptions must be overruled although
it was not accurate to ask for the plaintiff's "reasons," because so much
of the answer as was incompetent the plaintiff had offered to have stricken
out. Ibid.

7. Where, at the trial of an action by a broker for a commission for procur-
ing a sale of merchandise for the defendant, it appeared that the commis-
sion was agreed upon and that the contract of sale was made; but it also
appeared that a part of the merchandise was not delivered because the
customer refused to accept it and the defendant contended that no com-
mission was due the plaintiff as to such undelivered merchandise because
of the course of dealings between the parties and introduced evidence