332

treasurer of the defendant, as per said vote of January 22, 1918, directing him to pay to the plaintiff the said sum of $171.50."

members. Section 1, art. XI, of the by-laws, entitled "Help," provides:

"All applications for help shall be referred to the standing relief committee, who shall recommend relief according to the circumstances of the case."

"Section 2. When a worthy Elk of this lodge is destitute, unable to procure employment after diligent efforts, and actually without the necessities of life, he may make application in writing to the lodge, or during the intervals between the sessions of the lodge, to the standing relief committee, and may, if found worthy, be assisted from the funds of the lodge to a sufficient extent to provide him with the neces

The fine referred to was imposed by the Supreme Judicial Court in and for the County of Aroostook, in which court said Caleb H. Wheeler pleaded guilty to an indictment for maintaining a public nuisance, and for the illegal sale and keeping of intoxicating liquors. The plaintiff was a member of the board of trustees of defendant lodge at the time the fine was imposed, and it appears his interest and sympathy for Mr. Wheeler were shared by Mr. Buzzell, also a trustee and ac-saries only." tive member of the lodge. The payment for which this suit is brought was made on May 1, 1917. It also appears that previously, on December 8, 1916, the lodge

"voted to reimburse Bro. Wheeler for any expense of court or counsel as the result of the trouble while acting as steward, not to exceed $300."

Again the funds are guarded by a provision that "the lodge shall not have power to loan its funds to any of its members," and another that the exalted ruler shall sign all orders for the payment of money.

It requires no straining of the rules of construction to hold that the purpose for which the various votes were taken are en

The remaining vote necessary to be con- tirely outside the scope and intention of the sidered is this:

The latter is the vote under which the secretary drew an order on the treasurer, and which order the exalted ruler refused to sign.

laws governing a lodge of Elks, or to find
that in this case such a vote, or payment, if
made, has not, within the meaning of the law,
It is
a benevolent or charitable purpose.
very apparent that the law-making body, in
providing for "help" for its members, meant
not only that such member should be worthy,
but must be in actual need of help.

[1] It is the opinion of the court that the vote by which it was attempted to use the funds of the lodge for the purpose of paying a fine, or expenses of counsel, was an illegal vote, unlawful in its origin and purpose, and The plaintiff says that the exalted ruler wholly beyond the power of the lodge to refused to sign, either arbitrarily, or taking the position that it was an illegal expenditure of the funds of the lodge for an illegal purpose and further:

"That it cannot be an illegal expenditure of money to pay a fine legally imposed, the prior illegal acts out of which a prosecution arose being in no way material in this case, except to explain the circumstance out of which the defendant took upon itself the responsibility of acting."

We think it is material in disposing of this question, in view of the laws and rules governing the defendant organization, to take into consideration the object and source of all expenditure of lodge funds. The purposes of the organization are well defined, its membership is selected with care, and the duties and rights of its members are set out in the constitution, statutes, and by-laws of the organization in clear and unmistakable language. The purposes and authority of the subordinate lodge itself are as clearly defined in its fundamental law. And no provision can be more definite in its scope and limitation than that in its by-laws relative to its use of funds for or on account of any of its

pass, legalize, or ratify.

[2] It follows for the same and additional reasons that the exalted ruler was doing only His his duty in declining to sign the order. obligation to the order, and duty during his term of office, are clearly defined. The additional reasons are found in the law laid down for his guidance in article 5, § 2, of the by-laws, which reads:

"Art. 5, § 2. It shall be the duty of the exalted ruler to preside at all sessions of this lodge, call special sessions when necessary, appoint all committees created by the by-laws or by vote of the lodge, have general supervision over all matters pertaining to the lodge, and see that harmony is preserved and the laws of the order enforced."

The votes in question could create no liability on the part of the lodge to the plaintiff, who admittedly chose his debtor when he made his check payable to C. H. Wheeler and which check was used in part payment of the fine in question, a personal fine, and not for an offense chargeable against the lodge.

The payment of the order in such circumstances would be a diversion of the funds

(111 A.)

of the lodge, for which there is no warrant | require interrogation of the witness sought under the laws of the defendant organization. The entry will be:

Judgment for the defendant.

(119 Me. 313)

CURRIER v. BANGOR RY. & ELECTRIC

CO.

(Supreme Judicial Court of Maine. Oct. 15,

1920.)

Witnesses 388 (2)-Unnecessary to call witness' attention to impeaching statements.

It is not necessary, in order to render admissible statements by a witness contrary to his testimony at the trial, that the witness' attention be called to such former statements and he be given an opportunity to explain them.

Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by Augustus Currier, Jr., against the Bangor Railway & Electric Company. Verdict for the plaintiff, and defendant excepts, and moves for a new trial. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Daniel I. Gould and Clinton C. Stevens, both of Bangor, for plaintiff.

Ryder & Simpson, of Bangor, for defendant.

HANSON, J. This is an action on the case for personal injuries alleged to have been sustained by the plaintiff while a passenger on a car of the defendant company. The jury returned a verdict for the plaintiff, and the case comes before the court on exceptions and general motion by the defendant.

to be impeached upon the questionable matter before introducing the impeaching evidence. The first expression of this court upon the point here raised will be found in Ware v. Ware, 8 Me. (Greenl.) 42; the last in Inhabitants of New Portland v. Inhabitants of Kingfield, 55 Me. 172.

It will be unnecessary to consider the second exception or the motion. Exceptions sustained.

2. Frauds, statute of 56(6) Contract to obtain lease and assign it must be in writing.

An agreement, made as part consideration for a contract for the purchase of lodging house furniture, to procure a lease for the lodging assign it to the buyer, is not a contract to prohouse in which the furniture was situated and cure a lease for the buyer as his agent, but is one for the transfer of an interest in land, which must be in writing.

3. Frauds, statute of 63(2)—Assignment of lease is contract concerning interest in lands.

The assignment of a lease is a contract concerning an interest in lands, which the statute requires to be in writing.

Exceptions from Superior Court, Cumber

It will be necessary to consider the first land County. -exception only, viz.:

"That the plaintiff introduced as a witness at the trial of the issue Dr. Charles D. Edmunds, who testified as to changes for the worse in the physical condition of the plaintiff since and as a result of the accident, after said witness had finished his testimony at a former trial of the same cause, for the avowed purpose of contradicting said witness' statements at the present trial relative to the change in plaintiff's physical condition above stated, which said former testimony did tend so to contradict said witness. The defendant had not called the attention of said witness to his former testimony; and the presiding justice excluded said former testimony upon the ground that it is necessary, before introducing evidence of a witness' former statements tending to contradict him, to first call the attention of said witness to such former statements and inquire of him in regard to

same."

We think this exception must be sustained. It has not been the practice in this state to

Action on the case by Edward C. Inderlied against Blanche R. Campbell. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled.

Argued before. CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Strout & Strout, of Portland, for plaintiff. W. G. & C. D. Chapman, of Portland, for defendant.

WILSON, J. An action on the case to recover for an alleged breach of an agreement for the sale and purchase of certain lodging house furniture, under which agreement it is alleged in the declaration that the defendant also agreed to obtain from the owner of the house in which the defendant was then doing a lodging house business a lease of the premises for a certain

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

term of years and assign the same to the plaintiff. The breach set forth in the declaration is a failure to obtain a lease for the term agreed upon.

In the trial of the cause in the court below it appeared that the agreement, except for the part relating to the furniture, which was afterwards reduced to writing, was an oral one. At the close of the plaintiff's evidence the court ruled, in substance, that the agreement to obtain a lease and assign it to the plaintiff was a contract concerning an interest in real estate, and must therefore be in writing, and that such documentary evidence as was introduced in the case by the plaintiff was not sufficient to comply with the statute of frauds in this particular, and ordered a nonsuit, to which ruling the plaintiff excepted.

ute of frauds and could not be proved by oral testimony. Dunphy v. Ryan, 116 U. S. 491, 6 Sup. Ct. 486, 29 L. Ed. 703; Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027; Kendall v. Mann, 11 Allen (Mass.) 15, 17; Davis v. Wetherell, 11 Allen (Mass.) 19, note; Parsons v. Phelan, 134 Mass. 109. Also see Collins v. Sullivan and Schmidt v. Bieseker, supra; Myers v. Byerly, 45 Pa. 368, 84 Am. Dec. 497.

Entry will be:
Exceptions overruled..

(119 Me. 597)

KIDNEY v. AROOSTOOK VALLEY R. R.

1920.)

Oct. 15,

The plaintiff now concedes that the evi- (Supreme Judicial Court of Maine. dence in writing introduced by him as to the procuring and assignment of the lease is not sufficient to comply with the statute, but contends that the agreement is not one concerning an interest in real estate, and hence written evidence of the agreement was not necessary.

Death 103(3)-Directed verdict on issue of contributory negligence held proper.

[1] The contract in the case, however, is not one of simple agency by which one party agreed to obtain a lease or purchase real estate for another and in the principal's name, which the authorities are all agreed need not be in writing (Snyder v. Wolford, 33 Minn. 175, 22 N. W. 254, 53 Am. Rep. 22; Carr v. Leavitt, 51 Mich. 540, 20 N. W. 576; Trowbridge v. Wetherbee, 11 Allen [Mass.] 361: Baker v. Wainwright, 36 Md. 336, 11 Am. Rep. 495), nor even, we think, a contract of agency by which the agent agrees to purchase an interest in real estate and convey or assign it to his principal, concerning which and the kind of evidence required in proof the courts are not in accord (Johnson v. Hay

ward, 74 Neb. 157, 103 N. W. 1058, 107 N. W. 384, 5 L. R. A. [N. S.] 112, note, 12 Ann. Cas. 800; Schmidt v. Bieseker, 14 N. D. 587, 105 N. W. 1102, 5 L. R. A. [N. S.] 132, and note, 116 Am. St. Rep. 706; Burden v. Sheridan, 36 Iowa, 125, 14 Am. Rep. 505; Collins v. Sullivan, 135 Mass. 461).

[2] The case at bar, therefore, does not involve a question of agency. The declaration does not so allege, but sets forth a contract between two principals. The agreement to obtain and assign the lease, from the plaintiff's own testimony, was clearly a part of the consideration for the purchase of the furniture, which in effect was the acquiring of the defendant's lodging house business.

[3] That the assignment of a lease is a contract concerning an interest in lands there can be no question. Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486. The contract being between two principals and to obtain and assign a lease, it is within the stat

Under Pub. Laws 1913, c. 27, creating the presumption in actions for negligent death that deceased exercised due care, and imposing the burden of pleading and proving contributory negligence on the defendant, defendant, pleading contributory negligence of one killed by a train at a crossing, is entitled to a directed ver

dict, where the testimony of the only witness to the accident shows conclusively that decedent was not exercising due care.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by George Kidney, as administrator of the estate of Hanford Kidney, deceased, against the Aroostook Valley Railroad. Judg ment for defendant on directed verdict, and plaintiff accepts. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and MORRILL, JJ.

Shaw & Thornton, of Houlton, for plaintiff. Powers & Guild, of Ft. Fairfield, and W. R. Pattangall, of Waterville, for defendant.

PER CURIAM. This is an action on the case by the administrator of the estate of Hanford Kidney. Plaintiff's intestate was instantly killed in a collision between an automobile in which he was riding, and defendant's train, at Parsons Crossing, so called, in the town of Presque Isle, on the 30th of September, 1918.

At the conclusion of the evidence the defendant's counsel moved for a directed verdict, which was ordered by the presiding justice, and the case is before the court on plaintiff's exceptions to such order. We think the exceptions must be overruled.

Counsel for the plaintiff in opposing the motion, and now in argument upon the ex

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

(111 A.)

ceptions, urges the application of chapter 27, [ northwest part of township No. 6, range 7, Public Laws 1913, which provides:

W. E. L. S., known as the "Seboeis Farm," according to a plan and survey of said township made by Frank Fisk, containing 320 acres, more or less, in Penobscot county, and comes before this court on report.

"In actions to recover damages for negligently causing the death of a person, or for injury to a person who is deceased at the time of trial of such action, the person for whose death or injury the action is brought shall be The plaintiff claims under a deed from the presumed to have been in the exercise of due treasurer of the state of Maine, obtained care at the time of all acts in any way related through a sale of said land for the state and to his death or injury, and if contributory neg-county taxes assessed thereon for the year ligence be relied upon as a defense it shall be pleaded and proved by the defendant."

1907, and that the proceedings herein were in accordance with the provisions of R. S. 1903, c. 9, § 41 et seq., as amended by the Laws of 1905, cc. 69, 150, and chapter 226 of

The plaintiff says that he has established his title in full compliance with the requirements of the statute, and that no defect therein fatal to such title is or can be shown.

Contributory negligence of the decedent was pleaded as a defense, and was therefore in issue under the pleadings. The record 1909. shows that the case is not brought within the terms of the foregoing statute, but, on the contrary, the testimony of Mr. Allen Bull, the only witness to the accident, shows conclusively that the plaintiff's intestate was not in the exercise of due care, thus not only rebutting the presumption, but showing affirmatively that the accident was due largely, if not wholly, to the plaintiff's intestate's own want of care. Curran v. Railway Co., 112 Me. 96, 90 Atl. 973.

The defendants' counsel in their brief claim that in several respects the substantial requirements of the statutes authorizing a sale of land for taxes in unincorporated places have not been strictly complied with.

It will be necessary to consider but one of the provisions, and plaintiff's proceeding

The ruling of the presiding justice was thereunder. R. S. c. 9, § 42; Laws 1905, c.

correct.

Exceptions overruled.

MORRILL, J., concurred in the result.

(119 Me. 315)

FOULKES v. NEVERS et al.

(Supreme Judicial Court of Maine. Oct. 15, 1920.)

Taxation

363-Description in advertisement

of list of assessment held defective.

Advertisement of list of assessment, required by Rev. St. 1903, c. 9, § 42 (as amended by Laws 1905, c. 69, § 2, and Laws 1909, c. 235), and Rev. St. 1916, c. 10, § 44, describing land as "Penobscot County 6 R. 7, W. E. L. S. 320, 6, 90," held fatally defective, in that the particular tract of the designated township being assessed was not specified.

69, § 2; Laws 1909, c. 235; R. S. 1916, c. 10, § 44, provides:

"When the Legislature assesses such state tax, the treasurer of state shall, within three months thereafter, cause the lists of such assessments, together with the amounts of the county tax on said lands so certified to him, both for the current year, to be advertised for three weeks successively in the state paper, and in some newspaper, if any, printed in the county in which the land lies, and shall cause like advertisement of the lists of such state

and county taxes for the following year to be made within three months after one year from such assessment."

The record shows that the land in question was described in the advertisement of the

list of the assessment as follows: "Penobscot County 6 R. 7. W. E. L. S. 320, 6, 90”—and the list was signed by Pascal P. Gilmore, treasurer of state. We think the land de

Report from Supreme Judicial Court, Pe- manded was not sufficiently described in the nobscot County, at Law.

Action by Charles D. Foulkes against George A. Nevers and others. Judgment for

defendants.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

list so advertised, and in consequence the plaintiff has failed to show a compliance with the statute, and therefore cannot prevail in this action.

It has been uniformly held in numerous decisions of this court that such a description in a deed is utterly ineffectual to pass any title to any specific tract or acre in the town

P. B. Gardiner, of Bangor, and J. S. Wil- ship or to convey any title whatever. Larraliams, of Guilford, for plaintiff.

bee v. Hodgkins, 58 Me. 412; Griffin v. CrepRyder & Simpson and C. P. Conners, all of pin, 60 Me. 270; Moulton v. Egery, 75 Me. Bangor, for defendants.

HANSON, J. This is a real action, brought to recover a certain tract of land in the

485; Skowhegan Savings Bank v. Parsons, 86 Me. 514, 30 Atl. 110; Millet v. Mullen, 95 Me. 400, 49 Atl. 871; Powers v. Sawyer, 100 Me. 536, 62 Atl. 349. See Hatch v. Hollings

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worth & Whitney Co., 113 Me. 255, 93 Atl. ord to disturb the verdict upon the issue in

541.

The entry will be:

Judgment for the defendant.

volved, which was purely a jury question,
nor can we say, in view of all the evidence,
that the damages are excessive.
Motion overruled.

HAHNEL BROS. & Co. v. ALFRED HAN-
SON & SON et al.

(Supreme Judicial Court of Maine. Oct. 15,
1920.)

1. Appeal and error 901-Appellant has burden of showing error in finding in equity. On appeal from a decree in equity, the decision of the single justice on a matter of fact

On Motion from Superior Judicial Court, should not be reversed unless the appellant Lincoln County, at Law.

Trover by Ida C. Stahl against the H. G. Barker Company. Verdict for plaintiff, and defendant moves for a new trial. Motion overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ.

George A. Cowan, of Damariscotta, for plaintiff.

Ralph W. Farris, of Augusta, for defend

ant.

PER CURIAM. This is an action of trover to recover the value of an opossum skin coat which the plaintiff delivered to the defendant to be made over.

On completing the work the defendant sent the coat to the plaintiff by parcel post, and from the evidence it appears that the coat was lost in transit, and this suit followed. The jury returned a verdict for the plaintiff of $360.50, and the case is before the court on a general motion.

The main issue was upon the method of delivery of the coat to the defendant when the work should be completed. The plaintiff contended that she told the agent of the defendant with whom the contract was made that, if he would let her know when the coat was done, she would call for it and pay for the coat. The defendant does not deny that such was the understanding when it received the coat, but says that later the plaintiff telephoned the defendant that it was getting late in the winter, and she would not be able to come, and "as soon as it was done she wished us to send it to her." This the plaintiff denies.

The case was tried with that issue paramount, as appears by the ruling of the presiding justice denying the defendant's motion for a directed verdict.

The jury believed the plaintiff's testimony, and we find no reason appearing in the rec

sustains the burden placed upon him of show-
ing that the decree was clearly wrong.
2. Appeal and error 1151 (2)-Decree for

full amount claimed reduced in accordance
with admission.

Where the parties had filed a binding admission in the court below that, if it were found that the last work was done on a date stated, judgment should be rendered against the owner of the mechanic's lien demand for the amount of the bill less a stated credit, and the trial justice must necessarily have found the hypothetical fact to render decree for plaintiff, a decree for the full amount without allowance of the credit must be reduced on appeal.

Appeal from Supreme Judicial Court, Kennebec County, in Equity.

Suit by Hahnel Bros. & Co. against Alfred Hanson & Son, the First Congregational Church of Gardiner, and others, to enforce a mechanic's lien. Decree for plaintiffs, and defendant First Congregational Church of Gardiner appeals. Decree modified by reducing the amount, appeal dismissed, and bill sustained.

Argued before SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Getchell & Hosmer, of Lewiston, for appellant.

McLean, Fogg & Southard, of Augusta, for appellees.

HANSON, J. This is a bill in equity brought to enforce a lien claim for work done and materials furnished in repairing the First Congregational Church of Gardiner. Alfred Hanson & Son were the contractors. The bill alleges:

"That, at the special instance and request of said defendants, Alfred Hanson and Henry A. Hanson, the plaintiffs, furnished certain material to the value of $1,264.98 in repairing and improving a certain building with the appurtenances, standing upon a lot of land owned

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