Ralph and the father of Michael, were riding the mutual understanding and intention of the with Pia Vacca the wife of John. parties, the omission will be supplied by the

The jury upon conflicting evidence having found for the plaintiffs against all the defendants, the case is before us on the exceptions of John S. Vacca who contends there was no evidence which warranted a verdict against him.

We shall refer to him as the defendant. [1, 2] If he was an occupant of the car as the guest of his brother and the accident was due to the negligence of the driver over whom the defendant exercised no direction or control, his request that a verdict be ordered in his favor should have been given. Shultz v. Old Colony Street Railway, 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402. But the unlicensed driver who operated the car at the time of the accident was the defendant's son and the jury could further find that he was "learning to drive the car" and that with knowledge of his inexperience and shortly be fore the accident as the car was approach

ing the plaintiffs' team in the rear, the defendant said, "Look out and keep to the right" and to "look out for the plaintiffs' team because the team was in the middle of the road," and that the driver "was trying to get on the left," and that these directions were intended to control or influence the con

duct of the driver in properly operating the

car.

If the owner of the car also gave directions to the driver, yet the jury upon all the evidence further could find that the defendant and his relatives were engaged on an excursion for their mutual enjoyment and that in common with his brother he participated in the active management of the car. Adams v. Swift, 172 Mass. 521, 52 N. E. 1068.

It is not contended that there was no evidence of the negligence of the driver and the question of the defendant's liability was properly submitted to the jury. Exceptions overruled.

(224 Mass. 98)

PACIFIC SURETY CO. OF CALIFORNIA v.
ΤΟΥΕ.

(Supreme Judicial Court of Massachusetts.
Suffolk. May 17, 1916.)

1. PRINCIPAL AND SURETY

57-PREMIUMS

-CONTRACT-CONSTRUCTION. Where a bond agreement specifically provided for payment of annual advance premiums during the life of the bond, mere failure to fill in a blank space where the amount of the premium should have appeared did not indicate that there should be no annual premium, and the amount indicated in the margin as the premium should control.

57.]

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. § 101; Dec. Dig. 2. CONTRACTS

157-CONSTRUCTION-INSER

TION BY COURT. Where there is an obvious omission, and the evidence admitted without objection shows

DE COURCY, J.

defendant, an attorney at law, induced the In September, 1910, the plaintiff to become surety on the bond of his client, one Hazel Mills, to prosecute an apin the municipal court of the city of Boston. peal from a judgment rendered against her the said surety company was signed by the The application and agreement to indemnify defendant; and a premium of $5 was paid upon the issuing of the appeal bond. The case was still pending in the superior court, and the bond in full force, when this action was brought to recover four unpaid annual premiums.

[1, 2] The presiding judge excluded certain

offers of proof made by the plaintiff, evi-
dently assuming that the application and in-
demnity agreement embodied the complete
and final record of all the terms agreed upon
between the parties. But even on this as-
sumption we do not think he was justified in
ordering a verdict for the defendant. The
agreement expressly provided for the payment
of a premium to the company annually in
advance so long as the bond should remain in
force. The obvious failure to fill in the blank
space where the agreement recited "a premi-

um of
dollars, ($ annually"
cannot reasonably be interpreted as showing
that the parties meant "an annual payment
of nothing at all" as the defendant contends.
The payment of an annual premium not only
is customary, but was expressly contemplat-
ed. In the margin of the application part of
the agreement appear the words "Premium,
$5.00." This well may be interpreted as de-
fining the amount of the annual payment. In
the light of the context, and in view of the
contract as a whole, it seems apparent that
it was intended to insert the word "five,"
where the obvious omission occurs. Accord-
ingly, this will be supplied by the court;
especially as there was oral evidence, ad-
mitted without objection, that such was the
mutual understanding and intention of the
parties. Sweetser v. French, 13 Metc. 262.
See Clark v. Higgins, 132 Mass. 586, 589;
Hammon on Contracts, s. 404.

In view of this conclusion as to the interpretation of the written contract, it is unnecessary to consider the further argument of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In an action on account, evidence that witness had seen pencil marks on other statements receipted in the same manner similar to those on the statement in question is incompetent as showing that the mark on the receipt in controversy had been made in the same fashion.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 415; Dec. Dig. 139.]

"Q. Is there any way that you can tell definitely that this pencil mark was yours? A. No, there is not.

"Q. The form of it-does that bring to your attention anything? A. I don't know what you mean.

"Q. Well, is that the usual way? A. Yes. "Q. That you cross out a paid stamp when put on in error? A. Yes, sir."

Later, one Slattery, the cashier of the plaintiff company, was called by it as a witness. After testifying that he now observed a pencil mark through the stamp on the receipted bill he was asked:

"Have you seen similar pencil marks on other statements, receipted in the same manner by Miss Mahoney?"

On objection the court excluded this question. The only exception in the case is 3. EVIDENCE 139-WEIGHT-SUFFICIENCY. that taken by the plaintiff to this exclusion. The fact that a witness had made certain marks on receipts on other occasions has no tendency to prove that she made similar marks upon the receipt in controversy.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 415; Dec. Dig. 139.]

Exceptions from Superior Court, Essex County; Chas. U. Bell, Judge.

Action by the Crane Company against John H. Pension and others. Verdict for defendants, and plaintiff excepted. Exceptions over

ruled.

Geo. M. Poland and Schwarz & Dearborn, all of Boston, for plaintiff. Wm. E. Sisk and Richard L. Sisk, both of Lynn, for defendants.

[1] The burden is on the plaintiff, as excepting party, to show that this question was competent, and that it was prejudiced by the exclusion of the answer thereto. There was no offer of proof, but we assume that the witness would have answered "yes." It is now urged by the plaintiff that this testimony was admissible to show that the "M" shaped pencil mark was a symbol which the assistant cashier was accustomed to use as a cancellation mark on occasions when she affixed the payment stamp by mistake. It is apparent from the record however, that the judge understood this evidence was being offered, not to show the meaning of the mark or symbol when admittedly made by Miss Mahoney, but to prove that this mark on the bill in question was in fact made by her. During the examination of Miss Mahoney herself, she had failed to identify the paid stamp on said bill as one made by her. She had no recollection of having put it on, and nothing in its form enabled her to identify it as her own. She added that "if she put it on she would also put her initials upon it." When counsel then attempted to show what her custom was on other occasions with

DE COURCY, J. The principal defendant, John H. Pension (hereinafter referred to as the defendant) was indebted to the plaintiff company for plumbing supplies to the amount of $726.09; and on April 13, 1912, forwarded his check for $378.98 on account of said bill. He testified that on April 15, 1912, he went to the plaintiff's place of business, paid the balance ($347.11) in cash to a young man who apparently was in charge of the office, and received from him a receipted bill. The plaintiff denied that it ever had received pay- reference to marking paid stamps, he said, ment of this balance.

"It is principally for the purpose of identify

The defendant introduced in evidence a billing her own mark, by other marks; on which appeared a payment stamp of the plaintiff company. The assistant cashier of the company, Frances J. Mahoney, testified that this receipted stamp was "blanked out." She further testified as follows:

"Q. What do you mean by saying it is blanked out? A. Why, put a line through it,-a mark to show it was cancelled.

"Q. What line do you refer to? A. A lead pencil line.

and the judge stated in substance that counsel could not prove she did it in this instance by showing that she had done it on other occasions. When excluding the question in controversy, the judge remarked, "That is what I have already excluded."

[2, 3] In other words, in the absence of any offer of proof and statement as to the purpose for which the question was being ask

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ed, the judge understood and had a right to understand that its purpose was to show that similar pencil marks had been made on receipted bills by Miss Mahoney on other occasions, in order that the jury might infer therefrom, that she had made the mark on the receipt in controversy. The evidence was not competent for that purpose. The fact that Miss Mahoney made similar marks on some other occasions had no tendency to prove that she made the mark in question. Hamsy v. Mudarri, 195 Mass. 418, 81 N. E. 266; Com. v. Rivet, 205 Mass. 464, 91 N. E. 877. She already had testified that when she made such a pencil mark over a paid stamp, she did so to indicate a cancellation. Exceptions overruled.

(224 Mass. 138)

JENNINGS v. WHITNEY et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1916.)

1. LIENS 7-EQUITABLE LIENS-CREATION. Where a debtor merely gives his personal promise to pay his creditors from a particular fund, the fund is not chargeable with an equitable lien.

[Ed. Note. For other cases, see Liens, Cent. Dig. §§ 26-28; Dec. Dig. 7.]

2. ASSIGNMENTS 57-NOTICE TO DEbtor.

Where a corporation, before bankruptcy proceedings, assigned to plaintiff all moneys accruing under its contract with the United States, to secure payment of its notes, and, by the terms of the assignment, an equitable lien or charge as between themselves attached to the contract price, when earned, for the payment of the notes, plaintiff's failure to give notice did not affect plaintiff's rights as against the assignor.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 116-120; Dec. Dig. 57.] 3. UNITED STATES 111 ASSIGNMENT OF CLAIMS-VALIDITY. An equitable lien on all moneys accruing under a contract with the United States created by an assignment is not invalidated by Rev. St. U. S. § 3477 (U. S. Comp. St. 1913, § 6383), declaring that all assignments of any claim upon the United States or any part or share thereof or interest therein shall be absolutely null and void; the sole purpose of the statute being to protect the government, and not the interests of the parties.

[Ed. Note. For other cases, see United States, Cent. Dig. $$ 94-98; Dec. Dig. 111.] 4. BANKRUPTCY 188(3) - LIENS VALID AS AGAINST TRUSTEE.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 372-379; Dec. Dig. 268.]

Appeal from Superior Court, Suffolk County.

Suit by Stephen Jennings against Wilbur F. Whitney and others. Decree for the plaintiff against the defendant Sub-Target Gun Company, and dismissing the bill against the other defendants, and said company appeals. Affirmed.

L. L. G. De Rochemont and G. L. Wilson, both of Boston, for appellant. Frederick Manley Ives, of Boston, for appellee.

BRALEY, J. [1, 2] It is settled by Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314, that where the debtor merely gives his personal promise to pay his creditor from a particular fund, the fund is not chargeable with an equitable lien. See in this connec

tion Westall v. Wood, 212 Mass. 540, 99 N. E. 325; Old Colony Trust Co. v. Medfield & Medway St. Ry., 215 Mass. 156, 160, 161, 102 N. E. 484; Coram v. Davis, 216 Mass. 448, 454, 103 N. E. 1027. But in the case at bar the bankrupt corporation assigned to the plaintiff all moneys accruing under its contract with the United States to secure the payment of its promissory notes, and by the terms of the assignments an equitable lien or charge as between themselves attached to the contract price when earned in so far as might be required for repayment of the notes. Security Bank of N. Y. v. Callahan, 220 Mass. 84, 107 N. E. 385, and cases cited. The plaintiff's failure to give noticeto the bankrupt's contractee did not affect the plaintiff's rights as against the assignor. Kingsbury v. Burrill, 151 Mass. 199, 203, 24 N. E. 36; Richardson v. White, 167 Mass. 58, 61, 44 N. E. 1072; Walton v. Horkan, 112. Ga. 814, 38 S. E. 105, 81 Am. St. Rep. 77; Columbia Finance & Trust Co. v. First Nat. Bank, 116 Ky. 364, 76 S. W. 156; Muir v. Where, under the orders of the court author- Schenck, 3 Hill (N. Y.) 228, 38 Am. Dec. 633; izing the sale by the receivers of the property of Cogan v. Conover Mfg. Co., 69 N. J. Eq. 809, the bankrupt corporation as a going concern subject to all incumbrances, the receivers sold the 84 Atl. 973, 115 Am. St. Rep. 629; Barnes property to the defendant, but gave him no writ- v. Alexander, 232 U. S. 117, 121, 34 Sup. Ct. ten transfer except assignments of contracts 276, 58 L. Ed. 530; 2 R. C. L. Assignments, other than the contract with the United States, subject of suit, although the omission was in- 830, and cases cited in notes.

Where assignments made by the bankrupt corporation of money to accrue under a contract with the United States were valid at the time of filing the petition in bankruptcy, the receivers held whatever rights the bankrupt had in the contract subject to the lien.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. 88 270, 295; Dec. Dig. 185(3). 5. BANKRUPTCY 268-SALE OF PROPERTY -SALE SUBJECT TO LIENS.

tended, all parties knowing of the assignments

[3, 4] Nor is the lien invalidated by Rev.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

St. U. S. § 3477 (U. S. Comp. St. 1913, § 6383), | found that acting under the order they dedeclaring that all transfers and assign-livered the property to Whitney, "but gave ments of any claim upon the United States him no written bill of sale or other written or any part or share thereof or interest transfer except assignments of contracts of therein shall be absolutely null and void. the company other than that herein involvThe sole purpose of the statute was to pro- ed." The court further found that while this tect the government and not the interests of omission was intentional, all the parties the parties. Freedman's Savings & Trust knew of the assignments and of the indebtedCo. v. Shepherd, 127 U. S. 494, 8 Sup. Ct. ness to the plaintiff, who never has proved 1250, 32 L. Ed. 163; Ball v. Halsell, 161 his claim in bankruptcy. It results from U. S. 79, 16 Sup. Ct. 554, 40 L. Ed. 622; For- these proceedings that no property of the rest v. Price, 52 N. J. Eq. 28, 29 Atl. 215; bankrupt remained undisposed of, nor did York v. Conde, 147 N. Y. 493, 42 N. E. 193. the receivers intend that there should be It was so assumed in the reasoning in Jer- any, and Whitney by force of the decrees or negan v. Osborn, 155 Mass. 207, 210, 29 N. E. orders succeeded to all the assets of the bank520. And the provisions in article sixth of rupt including the contract, with the right the contract, "that any transfer of the con- to complete it and receive the consideration tract or any interest therein to any person if the assent of the government could be obor party by the said party of the first part tained. C. H. Batchelder & Co., Inc., v. shall annul the same so far as the United Batchelder, 220 Mass. 42, 44, 107 N. E. 455; States is concerned" would not affect the Federal Trust Co. v. Bristol Co. St. Ry., 222 validity of the assignments. The remaining Mass. 35, 109 N. E. 880. The defendant comquestion is whether the proceeds of the con-pany bearing the same corporate name as the tract in the possession of the defendant cor- bankrupt was thereupon organized under our poration is subject to the lien. The assign- laws by Whitney, with whom one of the ments being valid at the date of filing the receivers and one Danforth were joined for petition the receivers held whatever rights the purpose "in particular to acquire the the bankrupt had in the contract subject business formerly carried on by the Subto the lien. Hurley v. Atchison, Topeka & Target Gun Company, with the plant, maSanta Fé Ry., 213 U. S. 126, 134, 29 Sup. Ct. chinery, stock and all other properties con466, 53 L. Ed. 729; Sexton v. Kessler, 225 nected with the business, and the good will U. S. 90, 32 Sup. Ct. 657, 56 L. Ed. 995; of the business, and the benefit of the pendBankruptcy Act of July 1, 1898, c. 541, § 67, ing contracts and the stock thereof." subd. "e" (30 Stat. 564; U. S. Comp. St. 1913, § 9651).

[5] The money had been lent to enable the bankrupt to go on with the contract, which had not been fully performed at the date of the bankruptcy. It appears, however, to have been an undertaking from which upon completion a very app ciable profit would be realized, and the receivers filed a petition in the bankruptcy court reciting that it was essential that the property should be sold as a "going concern" subject to all incumbrances, and asking leave to sell the machinery, tools, stock on hand, furniture, patents, interests in patents, and contracts. A decree accordingly having been entered a sale followed to the defendant Whitney, to whom the bankrupt was largely indebted as a creditor. The receivers in their report of the sale asked that upon receipt of the consideration, they be authorized to transfer by proper instruments "all their right, title and interest in said property subject to all incumbrances," and the order of confirmation was in accordance with the request. It is

The findings of fact that the receivers and the promoters intended the new corporation should be the successor of the old company whose property was to be taken over and its business resumed and prosecuted in so far as possible as if bankruptcy had not intervened and that all the property acquired by Whitney under the orders of sale passed to the defendant company even if he designedly omitted to assign specifically the contract in question are justified by the evidence reported.

[6] It is clear from the answers to the in-
terrogatories propounded by the plaintiff and
from the findings that the company made no
new contract with the government but went
on and performed the original contract and
the consideration received therefor is subject
to the lien. Westall v. Wood, 212 Mass.
540, 544, 99 N. E. 325; Gage Lumber Co. v.
McEldowney, 207 Fed. 255, 124 C. C. A. 641;
Goodnough Mercantile Stock Co. v. Galloway
(D. C.) 171 Fed. 940; In re Olzendam Co.
(C. C.) 117 Fed. 179.

The decree should be affirmed with costs.
Ordered accordingly.

(273 Ill. 178)

McLean county, and his refusal to issue such PEOPLE ex rel. STAHLY et al. v. BRADY, permit. The respondent by his answer adAuditor of Public Accounts. (No. 10221.) (Supreme Court of Illinois. April 20, 1916. Rehearing Denied June 8, 1916.)

mits the application and refusal, and as justification for the refusal alleges that the village of Carlock is an unorganized, unin

1. BANKS AND BANKING 4- INCORPORA- corporated community, having a population TION-LOCATION-UNINCORPORATED TOWNS

of about 300; that it is without industrial enterprises, and there is, and ever since the year 1903 has been, one bank in Carlock furnishing ample banking facilities; that there is no demand or necessity for an ad

AND VILLAGES "TOWN"-"VILLAGE." Section 11 of the act concerning corporations with banking powers (Hurd's Rev. St. 1913, c. 16a), providing for organization of banks in cities, towns, and villages, and fixing the minimum capital stock according to popu-ditional bank; that Carlock is located on a lation, does not permit organization of banks in towns or villages not incorporated.

[Ed. Note.-For other cases, see Banks and Benking, Cent. Dig. § 3; Dec. Dig. 4.

For other definitions, see Words and Phrases,
First and Second Series, Town; Village.]
2. BANKS AND BANKING 4 STATUTE
AMENDMENT.

Where an act providing for organization of banks in "incorporated towns, villages or cities" not exceeding 5,000 with a certain capital stock, and in all "cities, villages or incorporated towns" of not exceeding 10.000 with a greater capital stock, was amended by an act allowing organization of banks "in all cities, towns and villages" of not exceeding 5.000 with a certain capital stock, and in all "cities, towns and villages" of over 5,000 with a greater capital stock, and the apparent purpose of the second act is to provide for the organization of banks in places over 10,000, the omission of the word "incorporated" does not show intention to authorize the organization of banks in unincorporated towns or villages.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 3; Dec. Dig. t.] 3. BANKS AND BANKING 22-INCORPORATION-DISCRETION.

The auditor of public accounts has no discretion to refuse permission to organize a bank. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 26-41; Dec. Dig. 22.]

Farmer, C. J., and Dunn, J., dissenting. Mandamus by the People, on the relation of Ali Stahly and others, against James J. Brady, Auditor of Public Accounts. Denied. De Mange, Gillespie & De Mange, of Bloomington, for relators. P. J. Lucey, Atty. Gen., and Thomas E. Dempcy, Asst. Atty. Gen., for respondent.

railroad about ten miles from Bloomington, eight miles from the village of Hudson and six miles from the village of Danvers, all of which have banks and banking facilities accommodating to a great extent the territory surrounding Carlock, and that to permit the organization of another bank would constitute a menace to the banking business there and make both banks unsafe for the stockholders and depositors. To the answer the relators have demurred, and the cause is submitted for decision on the demurrer.

Section 11 of the act concerning corporations with banking powers provides that banks may be organized in all cities, towns, and villages, with a minimum capital stock according to the population of such cities, towns, and villages, as follows:

"In all cities, towns and villages of not exceeding five thousand inhabitants, of $25,000. In all cities, towns and villages of over five thousand inhabitants and less than ten thousand inhabitants, of $50,000. In all cities, towns and villages of ten thousand inhabitants and less than fifty thousand inhabitants. of $100,000. In all cities and towns of fifty thousand inhabitants or more. of $200,000."

The first question raised by the demurrer, as above stated, came before this court upon the application of William Busse for leave to file a 'petition against James S. McCullough, auditor of public accounts, for a writ of mandamus compelling him to issue a permit to organize a bank at a place which was not in any incorporated city, town, or village, and the motion was denied for the reason that the law does not authorize such an incorporation, and therefore the auditor had properly refused to issue the permit. In this case, however, for reasons deemed sufficient to the court, leave was given to file the petition and the question is again before the court for further consideration upon full argument.

CARTWRIGHT, J. The questions to be decided in this case are: First, whether state banks can be incorporated under the law of this state in any other localities than in incorporated cities, towns, and villages; and, second, whether the auditor of public accounts has any discretion to refuse permission to organize a bank on account of local conditions which would render additional banking facilities unnecessary and the organization of a new bank injurious to the public interest. The questions arise upon the petition of Ali Stahly, Albert Fry, J. H. Stauffer, and D. Augstin, relators, filed by leave of court against James J. Brady, auditor of public accounts, setting forth their application to the auditor for a permit to organize a bank in the village of Carlock, in ing any place of business, within the township

[1] There can be no doubt that the cities named in the statute are municipalities incorporated for local government, nor that "towns" means incorporated towns. In seeking for the intention of the Legislature the nature of the subject-matter must necessarily be considered, and in view of the nature of the banking business townships were not meant. The statute requires the applicants to state in their application their place business, and if townships were meant, no

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-42