evidence. It was admitted properly. It is not contended that the vice-president of the Wilbur Company and Frazee as manager of the Biltmore Company were unauthorized to bind their respective companies. The jury properly could find that the contract embodied the result of Murry's negotiations with Frazee, for the instrument recites: "It is mutually agreed upon between the parties hereto that the sum of Five Hundred Dollars is to be deducted from the gross receipts every week during this engagement, which amount is to be paid to F. Ray Comstock, Manager of The Third Party Company, in consideration of his consenting to the cancellation of the contract he now has for his attraction at the Wilbur Theatre beginning Feb. 22, 1915." The jury further could find from Murry's evidence, that, after the agreement had been executed, "The Third Party" was cancelled with the plaintiff's assent, and that the new contract was forwarded to the manager of the theatre, and "a duplicate to Mr. Frazee" by whose company a check for $500 payable to the plaintiff's order was sent on March 9, 1915. And the parties agreed that "A Pair of Sixes' played at the Wilbur Theatre up to and including the week ending May 29," 1915.

If during the course of a long and exhaustive cross-examination Murry may have made some statements at variance with his direct examination, his credibility was for the jury who could accept such parts of his testimony as they believed to be true. Tierney v. Boston Elevated Railway, 216 Mass. 283. It also appeared in the testimony of Murry that the telegram of April 17, 1915, was dictated, signed and sent by Frazee. But, Frazee having denied that he was present, the counsel for the plaintiff, after having admitted the statement to be true, asked him in cross-examination, "Do you mean to say, and do you want, in leaving your testimony in that way, to let this jury infer that that telegram was a faked up affair?" to which the witness answered that so far as he was concerned it must be; and added, that his "representative in his New York office was Mr. Hopkins. He did not know that Mr. Hopkins had sent that telegram." The question although excepted to was within the discretion of the court. Jennings v. Rooney, 183 Mass. 577.

A letter then was offered purporting to be signed by the Biltmore Company acting by Frazee, and addressed to the Wilbur

Company, the contents of which referred to the Comstock agreement. In view of Frazee's further evidence that this letter was signed by Hopkins, meaning, as the jury could say, that Hopkins was authorized to sign Frazee's name, and the testimony of Hopkins, that he had sent the telegram also purporting to be signed by Frazee and dictated the letter, we cannot say that the admission of the letter as having some bearing on the fairness and good faith of Frazee as a witness to which the evidence was limited, requires the granting of a new trial. Maguire v. Pan-American Amusement Co. 211 Mass. 22, 27. St. 1913, c. 716, § 1. The defendants' motion that the telegram and all of the evidence of Hopkins relating thereto be stricken from the record also was denied rightly. The telegram was introduced during the direct examination of Murry without exceptions being taken by the defendants. But, even if Murry subsequently corrected his testimony, that Frazee was in the office on that date, and the plaintiff's counsel expressly disclaimed that the Biltmore Company was bound by the telegram, yet the evidence of Hopkins, the defendants' own witness, as to his share in the transaction, and his lack of authority to act, elicited largely if not wholly on crossexamination, was admissible in the discretion of the judge as affecting his credibility as a witness as well as affording some explanation to be considered by the jury of the business methods of Frazee. Jennings v. Rooney, supra, Maguire v. Pan-American Amusement Co. supra. Slotnick v. Silberstein, 221 Mass. 59. St. 1913, c. 716, § 1.

If the plaintiff's testimony now is considered, the jury if they believed him could find, that he had several conversations with Frazee at Murry's office when Frazee said in substance that he wanted to stay at the Wilbur Theatre, and "after some arguments" the plaintiff said "he was willing to let him have the time for $500 a week as long as the 'A Pair of Sixes' played." To which Frazee agreed, and the plaintiff "gave up his claim to the Wilbur Theatre." It is plain the jury upon all the evidence could find that, having a unity of interest and for the purpose of their own mutual advantage and pecuniary gain, the defendants jointly made, and bound themselves to perform, the agreement. Munroe v. Perkins, 9 Pick. 298. Meyer v. Estes, 164 Mass. 457. Whether the contract was several as well as joint need not be

decided. The judge therefore rightly refused to give the defendants' first, fourth and sixth requests.

But, if the first question is disposed of, the defendants by the eighth request asked the judge to rule that on all the evidence the jury must find "that the plaintiff agreed not to produce "The Third Party' in Boston during the theatrical season going on in the first part of 1915." Very plainly this request could not have been given in terms. It completely ignored the plaintiff's testimony, who testified that "no request was ever made . . not to come into Boston with 'The Third Party,"" and in his cross-examination he denied in substance that any such arrangement ever had been made. It is true that the defendants introduced testimony to prove that the plaintiff did agree that the play should be withdrawn during the period for which he was to be paid, and that according to the plaintiff's evidence, Frazee having notified the plaintiff "that he would not pay $500 a week and that he would stop paying it from the moment" the plaintiff "opened 'The Third Party' in Boston, and he did stop paying it, and . . . has never paid anything at any time since." But whether the withdrawal of that play was made a condition precedent to the contract declared on becoming operative, or whether the continuance of the play was a breach justifying rescission, depended upon the view the jury took of all the evidence from which the terms of the contract actually made were to be ascertained.

The defendants however excepted "to so much of the charge as permitted the jury to find the talk about not playing in Boston 'The Third Party' trade talk." But this phrase although used in the instructions is to be read in connection with the context. It was stated early in the charge when referring to and reading the contract as alleged in the declaration, "Now the defendant denies that, and as a part of his case he says another contract was made. The defendants have not got to prove that other contract. They simply offer that as evidence to show what the dealings of the parties were. They say that the whole contract upon which this consideration moved was not only to pay $500 a week by these defendants jointly to Mr. Comstock, so long as 'A Pair of Sixes' should run at the Wilbur Theatre, but that there was another essential, primary and bottom consideration in that contract, to wit, that Comstock agreed in consideration of that money that he

...

you are now

would not only give up his time at the Wilbur, but that he would not play 'The Third Party' in the city of Boston. Now, if you shall say that the plaintiff in this case has not sustained the burden of proving the contract that he relies upon, there can be no recovery. The defendants have not got to prove what they say was the contract. So you come right down in this case to the real bottom question, the first primary question, 'Was the contract made that the plaintiff relies on'?" The judge then after fully referring to and reading parts of the correspondence said, approaching the vital point in this case, as to whether or not the contract declared on by the plaintiff was the contract they made, or whether or not there was an additional primary factor in the case upon which the consideration moved, to wit, that Comstock would not play 'The Third Party' in Boston. So, taking those letters and all the conversation up to this time, you have got to satisfy yourselves, if you can, . just what these men were undertaking to do, how their minds were working, the real undertaking, and open the experienced minds of these gentlemen and see what they were about." In what followed the nature of the evidence, consisting of telegrams, letters, interviews and documents, and the object of the defendants which could not be accomplished unless the plaintiff for a monetary consideration could be induced to surrender his rights, were all impartially left to the consideration of the jury. And, after using an illustration of representations where the buyer is not deceived to which he referred as "trade talk," he gave an example of actionable representations, and continued, "Now, then, what do you say as to what these gentlemen were trading about? If they were trading about what the plaintiff says they were trading, and no more, there has been an admitted. breach of this contract up to a certain time. There is no dispute about that. If they were trading upon the basis of $500 a week for time at the Wilbur Theatre and 'The Third Party' not to come to Boston, there has been no contract proved here at all, and the defendants are entitled to a verdict." No exceptions were taken to this succinct statement of the law applicable to the case, and the jury must have had no difficulty in understanding the exact issue. While the expressions complained of may be somewhat misleading if standing alone, yet when the charge is read as a whole and they are viewed in their proper setting we cannot say

that the instructions are clearly erroneous. Hogner v. Boston Elevated Railway, 198 Mass. 260, 271.

The defendants having failed to show any error of law, the exceptions must be overruled.

So ordered.

MINNIE L. RHYNO vs. BOSTON ELEVATED RAILWAY COMPANY.

Suffolk. March 27, 1917. - May 25, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Negligence, Street railway, In crowded street.

In an action by a woman for personal injuries sustained from being struck by a street railway car of the defendant when the plaintiff had been thrust upon the track by a surging crowd who were trying to avoid being run over by a large wagon, there was evidence that teams were lined up on either side of the street along the sidewalk, that there were seventy-five or one hundred persons crowded in the centre of the street along both sides of the track, that the crowd was moving, pushing and surging while waiting for the car to stop, that the plaintiff was pushed forward toward the track upon which the car was coming by the crowd at her back, who sought to escape from the large wagon that was being driven along where they had been standing, that the plaintiff, when pushed forward, put up her hand and screamed to the motorman, then from eighteen to twenty feet away, that the car kept coming at the same speed and hit the plaintiff with the fender or side of the car, throwing her between the wheels of the wagon, that the car was going at the rate of four or five miles an hour and did not lessen its speed until the accident had happened. There was evidence that the crowded condition of this street, with teams lined up on both sides, and the rush to board the car were the usual condition of things at this hour of the day, and that the motorman saw the situation of the plaintiff in time to have avoided the accident. Held, that it was a question of fact for the jury whether the motorman in the exercise of reasonable care could assume that the plaintiff was far enough away from the track not to be struck by the car.

TORT for personal injuries sustained by the plaintiff on October 13, 1914, from being run into by a street railway car of the defendant as more fully described in the opinion. Writ dated November 16, 1914.

In the Superior Court the case was tried before Hitchcock, J. The evidence is described in the opinion. The judge submitted the case to the jury, who reported a disagreement. The judge then ordered a verdict for the defendant; and the plaintiff alleged exceptions.