expert, though he had never lived in the suburb, or bought, sold, or owned land there.

Exceptions from superior court, Suffolk county; Edgar J. Sherman, Judge.

Proceeding by Edward H. R. Lyman, trustee, against the city of Boston, for the assessment of damages for land taken for park purposes. Petitioner excepts to rulings on the admission of evidence. Exceptions overruled.

Robert M. Morse, for petitioner. Thomas M. Babson, for respondent.

MORTON, J. The questions put by the petitioner to the witness Rice on cross-examination, whether there were not restrictions upon his estate, and whether they did not enter into the price, were excluded on the ground that the restrictions could only be shown by the production of the deed. Subsequently Mr. Balch testified at length, without objection, to the state of the title, describing the restrictions, and saying, in substance, that he never was fully satisfied as to the nature of them; that he did not regard the title as absolutely clear; and that he was content for Mr. Rice to take it, and passed it. Mr. Rice gave the price which he paid for the property, and testified to the circumstances surrounding the sale, and to his conversations with Mr. Billings regarding it. The facts explanatory of the title and the sale were all before the jury, and they could judge whether the restrictions were accounted material, and affected the price. It does not seem to us that the petitioners were prejudiced by the exclusion of the questions. It was much better to have the witness describe the two estates than to permit him to express his opinion on their topographical similarity, etc. The peti. tioner has no valid exception to the exclusion of the question to Mr. Rice whether there was any topographical resemblance between his estate and the Lyman estate.

2. The next exception is that the Rice estate was so dissimilar to the Lyman estate that the price paid for the former furnished no just guide to the value of the latter. The dissimilarity is alleged to consist of the restrictions upon the Rice estate, etc., in the size, shape, topographical features, and situation of the two estates. It is also said that the sum paid for the Rice estate did not tend to show its market value, but involved other matters besides the value of the land and buildings, and included buildings of whose value the jury had no means of judging.

It is well settled that sales of land similarly situated, and not too remote in point of time, are admissible to determine the value of land taken for public purposes. From the nature of the case, no two estates can be exactly alike. The question in each case is whether the similarity is sufficient to afford material assistance to the jury in determining the value of the estate in controversy, or wheth

er the dissimilarity is such that the jury will be liable to be misled and prejudiced by the evidence. It is evident that there may be considerable difference in the size, shape, situation, use, and immediate surroundings of two estates, and perhaps in other respects, and yet the price which one brought may be of substantial assistance in determining the value of the other. There may be general considerations, applicable to both alike, which largely affect their value, and render it proper that the price paid for one should be considered in arriving at the value of the other, notwithstanding the differences between them. Benham v. Dunbar, 103 Mass. 365. Much must of necessity be left to the discretion of the presiding judge on the question whether the similarity is such as to render the testimony competent. But his discretion is not an unlimited one. Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305. If, in the present case, he had excluded the evidence because the two estates were not sufficiently alike, we should have hesitated to disturb the ruling. On the other hand, we cannot say that the restrictions were of such a character, or the dissimilarity of the two estates so great, that the evidence would tend to mislead or prejudice the jury, and would be of no material assistance to them in arriving at the value of the land in controversy; and that its admission was clearly wrong. As to the price, the facts in regard to the sale and explanatory of it were, as already observed, all before the jury, and they could consider what effect, if any, they naturally would have had on the price, and how far that represented the actual market value. The fact that it included buildings could also be taken into account by them. Patch v. Boston, 146 Mass. 52, 14 N. E. 770; Id., 146 Mass. 57, 14 N. E. 772.

3. The remaining exception relates to the competency of the four experts called by the city, Mr. Meredith, Mr. Viaux, Mr. Whittier, and Mr. Cobb. The petitioner objected that they were not qualified, and excepted to rulings permitting them to testify. All of them, except Mr. Cobb, testified that they were real. estate brokers doing business in Boston, and all of them, except Mr. Whittier, that they were members of the Real-Estate Exchange in Boston. Perhaps Mr. Whittier was a member also, though it did not appear. Mr. Meredith, Mr. Viaux, and Mr. Whittier stated that they had followed the prices, and kept acquainted with the values of real estate in the city and suburbs, including Jamaica Plain. Mr. Cobb stated that on several occasions he had appraised lands at Jamaica Plain, and had made investigations for that purpose, and that he was familiar with sales of land and values there, and that he was engaged in the management, care, and development of real estate in Boston, South Boston, and in the suburbs. All of them testified that they had examined the premises in question before the trial, though after the

(164 Mass. 61)

BASCOM v. SMITH. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1895.) CONSTRUCTION OF CONTRACT-PROVINCE OF COURT -GUARANTY OF PAYMENT FOR WORK

-MISTAKE OF GUARANTOR.

1. An instruction wherein the court undertook to construe the contract with reference to all the circumstances which the evidence tended to establish, and left it to the jury to determine whether the circumstances assumed had been established, is not objectionable, as leaving the whole construction of a written contract to the jury. 2. No special notice of the acceptance of defendant's guaranty is necessary when defendant knew that plaintiff was performing work relying on it.

3. One who agreed to be responsible for patterns to be made for another is not relieved of liability because he understood that the contract was to make a complete set of patterns, wood and iron, while in fact only wooden patterns were ordered and made, if he had an opportunity to know what work was ordered, and there was nothing in the guaranty indicating whether the pattern was to be of wood or iron or both. Exceptions from superior court, Suffolk county; James R. Dunbar, Judge.

Action of contract by H. Clay Bascom against J. Heber Smith. From a judgment for plaintiff, defendant excepts. Exceptions overruled.

H. E. Warner, for plaintiff. Warren Ozero Kyle, for defendant.

FIELD, C. J. The court undertook to construe the contract declared on with reference to all the circumstances existing when it was made which the evidence tended to establish, and merely left it to the jury to determine whether the circumstances assumed had been established by the evidence. This is not leaving the whole construction of a written contract to the jury; and the jury, by their verdict, have found that the circumstances were as they were assumed to be, and have construed the contract in the same manner as the court. The principle of construing a writing most strongly against the party who wrote and proffered it, when it is reasonably capable of two constructions, and has been honestly understood and acted upon by the other party according to the construction which is most against the interest of the party proffering it, was announced in the charge of the presiding justice not as an instruction to the jury, but as the rule adopted by the court. It is a rule which had been adopted in certain cases of real ambiguity, although we have some doubt whether, on the circumstances shown, there was any need of invoking it in the present case. Barney v. Newcomb, 9 Cush. 47. Assuming that the defendant knew that Mr. Webb, in behalf of the Economo Duplex Stove Company, had requested the plaintiff to make a new set of range patterns, of which there is no doubt, the letters of October 7, 1890, and October 8, 1890, become intelligible enough. The plaintiff, in his letter to the defendant of October

7, 1890, indicates that he wants a note in writing from the defendant confirming what Mr Webb had said, namely, that the defendant will become responsible to the plaintiff for work on the new set of patterns ordered of the plaintiff to the amount of $500, although the plaintiff politely says that he has such confidence in Mr. Webb's integrity that he regards his letter as superfluous; and the defendant, in his letter in reply, signifies in writing his present willingness and intention to become responsible to the plaintiff for work on such new set of patterns to the amount of $500. The whole letter of the defendant shows that he expected that the plaintiff would go on and make a new set of patterns, as ordered by Mr. Webb; and the evidence shows that he knew that the plaintiff did go on, and make the patterns. There was evidence that the defendant understood that the plaintiff in doing so was relying upon his agreement to become responsible to the amount of $500, and the jury must have so found. Upon such a finding no special notice of the acceptance of the guaranty or of the offer of guaranty was necessary. Knowledge was equivalent to notice. Bishop v. Eaton, 161 Mass. 496, 37 N. E. 665. In view of the facts which the court assumed in its hypothetical construction of the contract, which facts the jury must have found, the construction which the court gave to the clause, "in the event of any such action on my part becoming necessary for any cause," seems to be the only reasonable one. It meant that if, for any cause, the company shall be unable to pay for the new patterns, and it becomes necessary for me to pay, I will pay for them up to the amount of $500. The defendant contends that he is not bound, because it is said that he understood that the contract between the plaintiff and the company was, or was to be, for a set of patterns of wood and another set of iron, whereas the order actually given by Webb was for a set of wooden patterns, and the plaintiff made only a set of wooden patterns, in conformity to the order. Upon this point the instructions of the court were as follows: "There is another matter to which I ought to refer, and that is the claim of the defendant that there was no guaranty of this contract, because he did not understand that the contract between the company and the plaintiff was a contract to make wooden patterns alone, but that he understood that the contract was to make a complete set of patterns, wood and iron both; and that, inasmuch as he understood it that way, that that was the contract, and not the contract to make a set of wooden patterns alone; and he agreed to guaranty a contract which, it appears upon the plaintiff's own showing now, was not the contract which he understood he was guarantying; that, therefore, he was not bound. The claim is not correct. If a man undertakes to guaranty a contract which he may know the terms of upon inquiry, and he makes no effort to find

out what the terms are, but guaranties it,says, 'I will guaranty that contract,'-and nobody misleads him about it, and he has an opportunity to know what it is if he sees fit, but does not take pains to find out, but guaranties it without knowing, he is bound. Now, whether that applies in this case you will determine upon the evidence." this instruction was correct.

We think that The meaning of the letters, construed with reference to the circumstances which the jury must have found, is that the defendant is to become responsible to the amount of $500 for the work done by the plaintiff upon the new set of patterns, size No. 7, of the Economo Duplex Stove Company, which Mr. Webb, acting in behalf of the company, had ordered the plaintiff to make. There is nothing in the letters indicating whether the new patterns were to be of wood or of iron, or whether there were to be two sets of patterns,-one of wood and the other of iron; and the defendant guaranties payment to the amount of $500 for the work to be done by the plaintiff on the patterns size No. 7 of the Economo Duplex Stove Company, which Mr. Webb had ordered. Mr. Webb ordered only wooden patterns, the defendant guarantied payment for them to the amount of $500. Exceptions overruled.

(164 Mass. 112)

FARNSWORTH v. MULLEN. (Supreme Judicial Court of Massachusetts. Suffolk. June 21. 1895.)

As

NEGOTIABLE NOTE-LIABILITY OF INDORSER-DE-
MAND OF PAYMENT-DILIGENCE-REVIEW
ON EXCEPTIONS.

1. An issue which is not shown by the bill of exceptions to have been raised in the trial court will not be considered on review.

2. A holder of a note who upon transfer of the same before maturity places the address of the maker below his name on the face of the note, without the maker's knowledge, will be bound by a demand of payment by a subsequent holder at the address so given.

3. Evidence that a notary duly demanded payment of a note at the place designated on the face of the note as the residence of the maker, and that the replies received when demand was made justified him in believing that such place was the residence of the maker, warrants a finding of due diligence in demanding payment.

Exceptions from superior court, Suffolk county; James R. Dunbar, Judge.

Action by C. M. Farnsworth against James F. Mullen on a promissory note. From a verdict for plaintiff, defendant brings exceptions. Exceptions overruled.

W. F. Kimball, for plaintiff. Warren O. Kyle, for defendant.

BARKER, J. This case turns upon the effect to be given to the act of the defendant, Mullen, the payee and first indorser of the note, who, upon transferring it to Pinkham, the second indorser, and being inquired of by him as to the address of McDermott, the maker, replied, "I will write his address out," and thereupon wrote upon the face of the

note below the maker's signature the words "76 Chauncey Street," and delivered the note with his own blank indorsement to Pinkham. The note was afterwards indorsed in blank by Pinkham and transferred to the plaintiff, who in turn indorsed it in blank and transferred it to the Shoe & Leather Bank, its holder at maturity. The maker of the note had no knowledge of the memorandum. He lived in Boston, was a bookkeeper, and at the maturity of the note his place of business was at 88 Essex street, and his residence 16 Scotia street. The note was dated February 2, 1893, and matured on June 5, 1893. The maker had been employed as a bookkeeper in an office on the fourth floor of 76 Chauncey street until October, 1892. when he left that office. When he began to work at 88 Essex street, or to live at 16 Scotia street, does not appear. The only demand of payment was made at the office at 76 Chauncey street on June 5th, the last day of grace, shortly after 2 o'clock in the afternoon, and the notices of dishonor were sent before 3 o'clock on the same afternoon. The maker was not at 76 Chauncey street when the demand was made, and then had no place of business there.

The contention that the notices were sent too soon is not open, because it is not shown by the bill of exceptions to have been made in the superior court, and the defendant is now restricted to the questions which his bill of exceptions shows were there raised and ruled upon. We therefore have no occasion to consider whether the memorandum placed by Mullen upon the note estops him from contending that the note was not dishonored when the notices were sent.

The effect of a memorandum upon the face of a promissory note has been often considered. See Heywood v. Perrin, 10 Pick. 228; Perkins v. Bank, 21 Pick. 483; Demond v. Burnham, 133 Mass. 339; Saunderson v. Judge, 2 H. Bl. 509; Exon v. Russell, 4 Maule & S. 505; Price v. Mitchell, 4 Camp. 200; Williams v. Waring, 10 Barn. & C. 2; Trecothick v. Edwin, 1 Starkie, 468; Woodworth v. Bank, 19 Johns. 391. Following the decision in Demond v. Burnham, the effect to be given to the words "76 Chauncey Street" in the present case is to treat them as a part of the date of the note. Thus treated they raise a presumption, not conclusive, that the maker resided or had a place of business at 76 Chauncey street (Smith v. Philbrick, 10 Gray, 252; 3 Kent, Comm. 96; Demond v Burnham, ubi supra); and a demand made either at the residence or the place of business of the maker is of course good when no place of payment is stated in the note. But if at the maturity of the note the maker no longer resides or has a place of business at the place designated in the note, and that be known to the holder, diligence must be used to find him. 3 Kent, Comm. 96, 97; Smith v. Philbrick, ubi supra. In the present instance the memorandum was added to

the note by the defendant Mullen before its maturity, and before it came into the pos session of the plaintiff, or of the bank which held it when it became due, and which was charged with the duty of demanding payment. Having thus added the memorandum, Mullen cannot be allowed to say that the holder cannot rely upon its statements, nor insist that the holder shall act as if there were no such memorandum for his guidance in making demand.

Looking at the circumstances stated in the bill of exceptions, we think the presiding justice was right in ruling that due diligence had been used to find the maker of the note. The memorandum gave the holder a right to suppose that the maker's place of business was at 76 Chauncey street. Having this information, it was not incumbent upon the holder to make inquiries before the day of maturity. The notary used due diligence in going with the note shortly after 2 o'clock in the afternoon of the last day of grace to the place indicated in the memorandum as the maker's place of business, for the purpose of demanding payment. If upon his arrival there he had found any circumstances to indicate that the maker of the note did not have a place of business there, it would have been his duty to prosecute further inquiries. But we find nothing in the circumstances which should have informed him that the office at 76 Chauncey street was not the place of business of the maker of the note. The replies which the notary received there justified him in believing that the information given by the defendant in the memorandum was correct. The ruling that due diligence was used was right. Exceptions overruled.

(164 Mass. 107)

BOWDITCH et al. v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1895.)

EMINENT DOMAIN LAND TAKEN FOR PARK MEASURE OF DAMAGES-EVIDENCE OF VALUE. 1. On an issue as to the value of land taken for a park, the admission of evidence of what other land, 500 feet away, sold for 21⁄2 years before, since which time electric cars had been introduced, is not necessarily an abuse of discretion.

2. In 1891 a city acquired for park purposes an estate adjoining both petitioner's land and another estate, and in April, 1892, it took all the estates surrounding J. pond, except petitioner's and two adjoining it on the north, and in December took petitioner's land. Held, that there was evidence to support a finding that the plan, as it existed in April, 1892, contemplated the taking of petitioner's land, so as to deprive him of damages growing out of an increase of value in his land resulting from such public improvement.

Exceptions from superior court, Suffolk county; J. B. Richardson, Judge.

Action by Francis Parkman against the city of Boston for the assessment of damages by a jury for land taken for a public park. Said Parkman having died, Charles P. Bowditch and another, his executors, were sub

stituted as parties, and they except to the rulings, and refusals to rule, of the superior court. Exceptions overruled.

Robert M. Morse, for petitioners. Thomas M. Babson, for respondent.

MORTON, J. We cannot say that the Duff estate was so unlike the petitioners' estate that the price paid for it would furnish no criterion as to the value of the latter, and that the ruling admitting it was clearly wrong, as it must appear to have been, in order to justify us in holding that the discretion of the presiding judge was improperly exercised. Paine v. Boston, 4 Allen, 168; Shattuck v. Railroad Co., 6 Allen, 115; Patch v. Boston, 146 Mass. 52, 14 N. E. 770.

It does not appear that the introduction of electric cars had affected prices so much, or that the general rise in values had been so great, as to render it misleading as a standard of comparison. The fact that it was 2% years before the taking in question did not, of itself, render it incompetent. Benham v. Dunbar, 103 Mass. 365.

The remaining question relates to the instruction given by the court, that if the scheme of public improvement existing in April, 1892, did not contemplate the taking of the petitioners' land, they would be entitled to recover damages for the enhanced value resulting from such scheme, but that if it did they would not, and to the refusal of the court to rule that there was no evidence that the scheme adopted in April, 1892, included or contemplated the taking of the petitioners' land. The petitioners do not controvert the correctness of the general rule of law as stated by the court, and it must be regarded as established in this state. May v. City of Boston, 158 Mass. 21, 32 N. E. 902; Benton v. Inhabitants of Brookline, 151 Mass. 250, 23 N. E. 846; Dorgan v. City of Boston, 12 Allen, 223. They contend that there was no evidence to warrant its application to the case before the court, and that its only effect was to mislead the jury. Brightman v. Eddy, 97 Mass. 478. It appeared in evidence that in 1891 the defendant had acquired, for park purposes, the estate adjoining the petitioners' on the north, and also an estate known as the "Frothingham Estate," and that in April, 1892, it took for park purposes all of the estates surrounding Jamaica pond, except the land of the petitioners and the two estates immediately adjoining it on the north. On one of the estates not taken was an ice house. One of the defendant's experts, in giving reasons for his opinion that there had been no increase in value by reason of the taking in April, 1892, said that every one knew that the park plans contemplated taking the estate of the petitioners and all remaining lands on Jamaica pond, and that no purchaser would pay an increased price, as he would know that his land would be taken before any work was done to improve the park lands taken in