2. St. 1890, c. 448, requiring itinerant vendors to pay a license tax, having been passed as an exercise of the police power of the state, and not for revenue, the enforcement of the tax against vendors of goods imported by a foreign corporation, the goods being sold in the form in which they were imported, is not a taxation of interstate commerce.

Report from superior court, Berkshire county; F. A. Gaskill, Judge.

Ira E. Newhall and James P. Campbell were convicted of engaging in itinerant peddling without a license, and the case was reported to the supreme court. Verdict sustained.

C. L. Gardner, Dist. Atty., for the Commonwealth. H. C. Joyner, for defendants.

BARKER, J. By the statute definition, all persons "who engage in a temporary or transient business in this state, either in one lo

cality or in travelling from place to place selling goods, wares and merchandise and who for the purposes of carrying on such business hire, lease or occupy any building or structure for the exhibition and sale of such goods, wares and merchandise," are itinerant vendors. St. 1890, c. 448, § 1. The defendants' first contention is that they are not within this definition. They are part of a traveling troupe, which is composed of Indians, a comedian, and a physician, and which gives entertainments consisting of songs, dances, farces, Indian ceremonies, and lectures. The purpose of the troupe, and of their entertainments, is to advertise certain proprietary medicines. The troupe hired and occupied for two weeks a public hall in Great Barrrington, and there offered for sale and sold, both during the entertainments, which were in the evenings, and during the daytime, bottles of the medicines, to such parties as called for them. Without considering whether the statute was meant to include all traveling troupes which, in the course of some entertainment to which the public are admitted, sell books explanatory of the entertainment, refreshments, or like wares, we are of opinion that upon the evidence the defendants were clearly engaged in the business of selling merchandise, and were for that purpose temporarily hiring and occupying a building for the exhibition and sale of their goods, and so within the statute. Whether St. 1890, c. 448, and St. 1894, c. 525, are open to objection as imposing a tax prohibited by the constitution of the commonwealth, is a question not raised, and upon which we express no opinion.

The defendants also contend that because they were employed by a foreign company, and had in their possession its goods, imported into this commonwealth for sale, and offered for sale here by the defendants in the same form and shape in which the goods were imported, the defendants were not liable for not having licenses as itinerant vendors.

that the goods offered for sale were in the original packages, but upon the ground that the statute is a revenue statute, and that in the case of the present defendants the licenses required were merely for revenue, and their requirement void, as a tax upon interstate commerce, under the doctrine of Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. 829. But in that case the license, the requirement of which from the soliciting agent of a foreign manufacturer was held invalid, was a license which was not exacted, and did not purport to be exacted, in the exercise of the police power, but of the taxing power, of the state; being for general revenue purposes, as stated by the ordinance imposing it, and which ordinance was made by the municipality under a grant of authority to levy and collect license taxes. On the other hand, our statutes now under consideration purport to be, and are, passed under the police power of venting and punishing fraud in sales by itinerthe commonwealth, for the purpose of pre

ant vendors; and an examination of the statutes makes it appear that such is their real design, and that the provisions for state and local licenses are merely incidental means of compensating the state and the localities in which the itinerant vendors ply their business for the expenses of necessary state and local supervision. See Com. v. Crowell, 156 Mass. 215, 30 N. E. 1015, and cases cited.

Sentences having been imposed upon the defendants in accordance with the provisions of St. 1895, c. 469, the verdict and sentences are to stand. So ordered.

(164 Mass. 335)

PIXLEY v. PIXLEY et al. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 16, 1895.)

TAX DEED-SUFFICIENCY-RECITALS AS to Cause OF SALE.

A tax collector's deed, reciting that the sale was made for unpaid taxes, after demand for payment, and the expiration of 14 days after demand, and the giving of proper notice of sale, is a sufficient compliance with Pub. St. c. 12, § 38, requiring such deed to state the cause of the sale.

Exceptions from superior court, Berkshire county; Elisha B. Maynard, Judge.

Action of trespass by Levi Pixley against Edward Pixley and another. There was a verdict for defendants, and plaintiff excepts. Exceptions overruled.

M. Wilcox, for plaintiff. W. C. Spaulding and H. C. Joyner, for defendants.

KNOWLTON, J. The only question in this case is whether the collector's deed is fatally defective, for want of a sufficient statement of the cause of the sale of the real estate. Such a statement is required by Pub. St. c. 12, § 38, and this requirement has been construed with considerable strictness. Harrington v.

Worcester, 6 Allen, 576; Reed v. Crapo, 127 Mass. 39; Langdon v. Stewart, 142 Mass. 576, 8 N. E. 605. But the deed before us differs materially from any of those which have been held to be void for want of proper recitals. While it does not follow the exact words of the legislative form for a collector's deed of St. 1888, c. 390, it contains language which amounts, in substance, to a statement that the sale was made because the taxes remained unpaid after a demand duly made for the payment of them, and the expiration of 14 days from the time of the demand, and the giving of proper notices of the time and place of sale by advertising in a newspaper and by posting. As was said in Adams v. Mills, 126 Mass. 278, 281, "No one reading this deed could fail to understand that the sale was made because the tax remained unpaid, after demand, for more than 14 days before the land was advertised, and was still unpaid when the sale was made." In this particular the deed is informal, and less specific than is desirable, but it is intelligible, and it conveyed the title which it was intended to convey. Exceptions overruled.

(164 Mass. 350)

CHELSEA DYE-HOUSE & LAUNDRY CO. V. COMMONWEALTH.

(Supreme Judicial Court of Massachusetts. Suffolk. Oct. 16, 1895.)

CONDEMNATION OF LAND FOR SEWER-DAMAGESEASEMENTS-ADDITIONAL SERVITUDE.

1. Under St. 1889, c. 439, § 4, as amended by St. 1890, c. 270, § 1, relating to the Metropolitan sewer, and providing that the commonwealth shall pay all damages sustained by reason of the taking of land for sewer purposes, one who used the waters of a natural pond on his land, in his business, could not recover for the temporary drying up of the same, caused by the work of constructing a part of the sewer under a highway.

2. The construction and maintenance of a sewer under a public highway imposes no additional servitude on the land under the high

way.

Case reserved from superior court, Suffolk county.

Petition by the Chelsea Dye-House & Laundry Company against the commonwealth. Judgment for defendant.

Eugene P. Carver and Edward E. Blodgett, for petitioner. Wm. D. Turner, for respondent.

HOLMES, J. The petitioner seeks to recover for the temporary drying up of its pond, caused by the work of constructing a part of the Metropolitan sewer in a public highway. After the work was finished the water returned to the pond. The statutes under which the work was done and the damages are claimed are St. 1889, c. 439, and St. 1890, c. 270. By section 1 of the latter act, amending section 4 of the former, the commonwealth is to pay "all damages that shall be sustained by any person or corporation by

reason of such taking or entering as aforesaid." The entering referred to is the entering of existing sewers, as authorized earlier in the section. With that we have nothing to do in this case. The petitioner's case must stand on the word "taking." But as the sewer was built under a highway, and as the board of sewerage commissioners only purported to take "the right to carry and conduct under the following described land (viz. the highway], and therein to construct, operate, and forever maintain an underground main sewer," etc., no additional servitude was imposed upon the land under the highway. Lincoln v. Com. (June 12, 1895) 41 N. E. 112. No right of any sort was taken in the plaintiff's land.

But we do not need to decide that no damages can be recovered in any case, under this act, where property not taken in terms is injured in a permanent way. The question is one of construction, and may be left open until it is necessary to decide it. It is enough to say that it is not disposed of by any authority which has been called to our attention. There are further considerations in the case at bar. So far as appears, nothing has been done which would have been actionable if no statute had been passed. It is true that some statutes have been interpreted as giving damages for harm for which no action could have been maintained at common law. But the fact mentioned is a circumstance to be considered. The damage in this case not only would have been damnum absque injuria at common law, but it was temporary in its nature. It is not a permanent consequence of maintaining the sewer, but was merely a temporary interruption, caused by the work upon it. Whatever latitude may be given to the statute, it does not extend to damages of this sort. As has been held in Lincoln v. Com. (decided since the argument) 41 N. E. 489, such temporary damage is left by the statute to lie where it falls. See Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9.

It follows that, in the opinion of a majority of the court, the judgment must be for the defendant. Judgment for defendant.

(164 Mass. 341) SCAMMELL et al. v. CHINA MUT. INS. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 17, 1895.) MARINE INSURANCE-UNCERTAIN AMOUNT-VALIDITY OF CONTRACT.

1. Where, on application for insurance on a cargo soon to be shipped, facts necessary to determine the amount of insurance and premiums are not known, a memorandum agreement for insurance to a certain amount, at a reasonable premium, and providing for a policy when the facts are found out by the applicant and made known to the insurer, is a valid contract.

2. Where a contract is made to insure a cargo to a certain amount, at a reasonable rate of premium, till the facts necessary to determine premium to be charged, and the amount for which a policy will be issued, can be determined

by the applicant, and sent to the insurer, failure of the applicant to send such information without unreasonable delay to the insurer, after receiving it, avoids the contract.

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

Action by John W. Scammell and others against the China Mutual Insurance Company, for insurance. A verdict was directed for defendant, and the case reported to this court, judgment to be entered on verdict if the ruling was correct; otherwise, to stand for trial. Judgment on verdict.

Chas. Theo. Russell, for plaintiffs. L. S. Dabney and J. D. Bryant, for defendant.

KNOWLTON, J. The memorandum relied on by the plaintiffs as a contract is in the form of an application for insurance, containing a brief statement of particulars, and is marked "binding." At the bottom are the words, "Send policy to Walker & Hughes, 63 Wall street, New York." On its face it purports to be a preliminary and temporary arrangement, which contemplates the making of a full and definite contract in the form of a policy covering the same subject, with additional provisions. The premium which is to be paid as the consideration for the insurance, and which is, perhaps, the most important of the terms of the contract, is not fixed, but is left to be agreed upon when further information is obtained. At the time of the application the only information which the parties had in regard to the freight which was the subject of the insurance was derived from a very brief telegraphic message. Several of the particulars given in the application are stated in the most general terms, and against the word "premium" are written the words, "open for particulars." It is contenȧed with much force by the defendant that the memorandum lacks the essential features of a contract, in its failure to fix exactly the amount of the insurance, or to state the rate of premium, and authorities are cited which go far towards sustaining this contention. Hartshorn v. Insurance Co., 15 Gray, 240, 244, 247, 249; Insurance Co. v. Wright, 23 How. 401, 408, 409; Insurance Co. v. Ewing, 92 U. S. 377-381; Kimball v. Insurance Co., 17 Fed. 625; Hamilton v. Insurance Co., 5 Pa. St. 339; Strohn v. Insurance Co., 37 Wis. 625-631. In order to bind the parties by a contract of insurance, all the essential elements of the contract must be agreed upon, but in a case like this, where it is impossible at the time to obtain important facts affecting the subject of their dealings, the parties may make a general agreement to accomplish their purpose as well as they can. The memorandum, applied to the admitted facts in this case, shows plainly that the parties desired to enter into a definite contract of insurance, in the form of a policy which should clearly state their rights and obligations. They had not sufficient facts in their possession to enable them to determine what

would be a reasonable rate of premium, and the defendant declined to fix the premium until further information could be obtained. The risk was to commence soon, and the plaintiffs desired to be protected from the inception of it. The defendant was willing to give them this protection on reasonable terms, and both parties doubtless expected that the additional information necessary to enable them to make the final contract for the voyage would soon be obtained. They therefore agreed that the insurance should be binding, to the amount of $3,000, temporarily, at a rate of premium which should be fair and reasonable, until such time as the rate could be fixed and the contemplated contract entered into. Each doubtless thought the other would act reasonably, by agreeing to a fair rate of premium, when the time should come for making the final contract, and each was willing to trust the other to that extent. Plainly, neither of them expected this to be anything more than a temporary arrangement to meet the emergency until further particulars could be obtained. We think this was a binding contract for the purpose for which it was made. If the vessel had sailed, and had been lost at sea, before the plaintiffs had a reasonable opportunity to furnish the further particulars, the defendant would have been bound to pay the insurance, and the plaintiffs would have been bound to pay a premium, at a reasonable rate, for the risk as it was when the contract was made. If the plaintiffs, when they received the charter party, had communicated the additional information obtained from it to the defendant, the parties would probably have agreed upon a rate of premium, and have embodied their contract, as then made, in a policy. But, if they had then been unable to agree upon the premium, their temporary contract would have been terminated by its own limitation; the plaintiffs would have been at liberty to seek insurance elsewhere, and would have been liable to pay the defendant, at a reasonable rate, for the time the insurance had continued. The legal effect of the memorandum is the same as if it stated, in terms, that the insurance should continue, at a reasonable rate of premium, until the plaintiffs had an opportunity to furnish the further particulars; that the plaintiffs would furnish them, and that both parties would then endeavor to agree upon a premium, and make a contract in the form of a policy. The plaintiffs were bound by their implied agreement to furnish the particulars without unreasonable delay, and upon their failure to do so the preliminary contract of insurance came to an end. This is in accordance with the decision in Baker v. Assurance Co., 162 Mass. 358, 38 N. E. 1124, although in that case the agents who made the agreement had their offices side by side in the same building; and it was held. upon the conflicting testimony, that there might have been a finding either that the parol contract was for insurance to continue

temporarily, for a short time, until one of the agents should terminate it, or that it should continue only until the expiration of a reasonable time to enable the plaintiffs to ascertain in what terms they wished to take policies in writing. It was held that there was no evidence which would warrant a finding that there was a contract of insurance for a year.

In the present case all the additional facts necessary to enable the parties to complete their contract, and to put it in the form of a policy, were known to the plaintiffs as soon as they received the charter party. This was sent them by the master of the vessel, and they received it about September 12, 1890. The memorandum sued on bears date July 30, 1890. The vessel did not sail on the voyage by which the freight was to be earned until September 22, 1890. The two particulars of which the parties were ignorant, which were important in determining the rate of premium to be paid, were the nature of the cargo and the port of destination. The cablegram which furnished their only information on the subject was in these words: "The vessel is fixed to load on the spot. Wood, forty francs. Queenstown, etc. for orders. U. K. or continent." The charter party shows that the cargo was to be Quebracho wood, in logs, and contains stipulations in regard to their length, and how they should be loaded. The charter party also shows that the vessel was to proceed to Queenstown, Falmouth, or Plymouth for orders, and was liable to be ordered to any port in the United Kingdom, or on the continent between Hamburg and Havre, Rouen excepted. It also contains provisions in regard to the mode of giving the orders. There was uncontradicted testimony that this kind of wood was very heavy, and was considered an undesirable risk. There was also evidence, which was not disputed, that the language of the cablegram and of the memorandum, "on the continent," might include St. Petersburg and ports on the North Sea, for which rates of insurance for a vessel starting at that season of the year would be very high, and that the charter party included only the usual range of ports on the continent. The plaintiffs' agent testified, and it was not denied, that he tried to have the defendant's agent fix the rate of premium when the application was presented, but the defendant's agent said he would rather leave it open for particulars of the cargo. There is nothing in the circumstances to show that the rate of premium was to be kept open for any other particulars than those which were shown by the charter party, and these were in the possession of the plaintiffs, at their office in St. John, 10 days before the vessel sailed. It was the duty of the plaintiffs to communicate these facts to the defendant at once, upon their receipt of them. Instead of doing so, they made no communication to the defendant until February 11, 1891, when they made a claim for a total loss. They broke their implied contract when they

neglected to communicate these facts within a reasonable time after the receipt of the charter party. Even if they were justified in waiting for the letter from the master of the vessel, which showed the exact quantity of the cargo, they failed to furnish the particulars to the defendant within a reasonable time, for they received this letter on October 27, 1890. This was almost two months before they got information of the loss of the vessel, which came by telegraph on December 16th. The vessel was abandoned at sea by the captain and crew on November 16th. There is no ground for the contention that the contract contemplated a delay in fixing the premium until the voyage should be made to Queenstown, Falmouth, or Plymouth, and orders should be received there to proceed to the port of discharge. To wait for the receipt of these orders, and the communication of them to the defendant in the ordinary way, would be to postpone the making of the contract of insurance until after the termination of the risk. Upon the conceded facts of the case, the plaintiffs failed to furnish the defendant, within a reasonable time, with the facts which were to be the foundation of the contemplated substantive contract of insurance, and the incidental and temporary arrangement made at the time of the application expired by the limitation which was one of its implied terms. The construction which we put upon this preliminary arrangement, in regard to the undertaking of the plaintiffs to furnish additional facts without unnecessary delay, accords with the testimony of all the experts as to the usage in similar cases. This usage almost necessarily results from the fact that the essence of a contract of insurance is to provide indemnity upon the payment of an agreed sum, and not to insure for a price to be determined upon a quantum valebat after the termination of the risk.

We see no error in the exclusion of certain answers in the depositions offered by the plaintiffs. Only one or two of those answers, if received, would have had any tendency to show that the contract made in this case was to continue after the time when the plaintiffs should have furnished additional particulars to the defendants, and these were statements of the understanding of insurers, which were not competent to affect the interpretation which the law gives to such a contract. Odiorne v. Insurance Co., 101 Mass. 551-553; Haskins v. Warren, 115 Mass. 514, 535, 536. A majority of the court are of opinion that there should be judgment on the verdict.

(164 Mass. 398)

COMMONWEALTH v. BOUVIER. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 17, 1895.) PERJURY-INDICTMENT.

1. Under Pub. St. c. 205, § 5, providing that an indictment for perjury in a criminal case

shall be sufficient if it set out the substance of the offense charged against the defendant, such an indictment need not allege that the court trying the case was then held for criminal busi

ness.

2. An averment in an indictment for perjury, that defendant swore that he did not sign the complaint in a criminal case, and that the name subscribed as complainant was not in his handwriting, is equivalent to an averment that defendant denied having signed the complaint as complainant.

Exceptions from superior court, Worcester county; Justin Dewey, Judge.

Victor A. Bouvier was indicted for perjury. From a verdict of guilty, defendant brings exceptions. Exceptions overruled.

The indictment in this case charged that the defendant, to procure the acquittal of George H. Dumas, on trial for selling liquor without a license, falsely swore that he did not sign the complaint against him.

Herbert Parker, Dist. Atty., for the Comwealth. Charles Haggerty and J. R. Kane, for defendant.

ALLEN, J. 1. The act charged in the complaint against Dumas was a crime under the laws of this commonwealth, and the indictment alleges that this complaint was tried in the First district court of Southern Worcester, before the justice of that court. The indictment clearly alleges that the perjury was committed in the trial of a crime, and it was not necessary to allege that the court was then held for criminal business. St. c. 205, § 5; Com. v. Hatfield, 107 Mass. 227, 230.

Pub.

2. The indictment sets forth that the defendant swore that he did not sign said complaint, and that the name which was subscribed to it as complainant was not in his handwriting. This includes an averment that he denied having signed the complaint as complainant. Exceptions overruled.

(164 Mass. 380)

WELLINGTON et al v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Middlesex. Oct. 17, 1895.)

CONDEMNATION PROCEEDINGS-DAMAGES.

In an action for damages for the taking of land for railroad purposes, it is improper to allow damages to a parcel of land used for other purposes than the land actually taken, and separated from it by a street.

Exceptions from superior court, Middlesex county; Albert Mason, Judge.

Petition by James E. Wellington and others against the Boston & Maine Railroad Company for damages for taking of land. On motion before the superior court for acceptance of the report of damages made by the sheriff and jury, the court directed an acceptance of the report, and defendant excepts. Exceptions sustained.

The petition in this case asked for, and the report of the sheriff and jury allowed, dam

BARKER, J. When this case was first here, we saw nothing to indicate that any recoverable damages were caused to lands of the petitioners not taken, save to their lots immediately adjoining the parcels taken or abutting on the same street with the railroad. Wellington v. Railroad, 158 Mass. 185, 33 N. E. 393. In the opinion of a majority of the court, no reason to change this intimation is shown by the present bill of exceptions, and we think the defendant was entitled to the ruling requested to that effect. Upon the evidence, all the other lands of the petitioners had been made separate and distinct parcels by transforming the locality into a village with wrought and traveled streets, and making all the land not included in the streets into exactly defined house lots, some of which had been sold to other persons, and each of which then owned by the petitioners was held for the distinct purpose of independent sale. Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in one ownership, and is not divided by streets or by paper lines. But when, as in the present case, the evidence shows that there is an actual division by streets, wrought and in use for travel, and by recorded paper lines, and there is no evidence that any two of the lots are used together, or are held for sale as one parcel, and the only use shown is a separate and distinct use and holding of each lot by itself, we think each lot is a separate and distinct parcel. Exceptions sustained. Verdict set aside.

ROGERS v. COY.

(164 Mass. 391)

(Supreme Judicial Court of Massachusetts. Suffolk. Oct. 17, 1895.)

LANDLORD AND TENANT-ACTION FOR RENT-LIABILITY OF WIFE.

1. In an action for rent it is only necessary to prove the contract and possession, not the beginning or termination of the tenancy.

2. A married woman, living with her husband, and occupying the premises as tenant with his assent, is liable on her agreement to pay the rent.

Exceptions from superior court, Suffolk county.

Action for rent by Rogers against Coy. Defendant had judgment, and plaintiff excepts. Exceptions sustained.