vail. So far as respects the deed to Renfrew, we have had some difficulty as to the true effect of the report. The deed seems to have been given after "it was whispered in Pittsfield that there was a flaw in the plaintiff's title." No copy of it is before us. It was given by James H. Murphy, but it does not appear whether there was any release of dower by his wife. It was a quitclaim deed. No finding is made as to whether Renfrew had notice of the plaintiff's equitable right.

A deed under seal, however, imports a consideration, and a quitclaim deed in the ordinary form would have been sufficient to convey the title to Renfrew free from the equitable right of the plaintiff if he was a purchaser for valuable consideration without notice (Rev. Laws, c. 127, sec. 2), and the burden of proving notice is upon the plaintiff. Although the defendant Wood had notice when he bought from Renfrew, still, as in the case of his purchase from the bank, he would take the title his grantor had. The bill was not taken pro confesso against Renfrew until long after the deed from him to Wood, and in any event Wood's rights are not affected by this order.

After the original hearing, and after the judge had filed a memorandum of his findings, the plaintiff moved to amend the bill by adding the following: "In the event of the court finding that the plaintiff is not entitled to have her said mortgage reformed as against the owners of the said Wood mortgages and of the title under the said execution sale, the plaintiff offers to pay such amount as is found due for redemption. And the plaintiff prays that in such case the court will determine the amount due for redemption from said mortgages and said execution sale and that the plaintiff be allowed to redeem by paying such amount." The proposed amendment was opposed by Wood and was disallowed by the judge upon the ground that under the facts found by the court the "plaintiff has no right of redemption which extends or applies to the northerly lot." The judge then ordered that the bill be dismissed, and by consent of parties 322 reported the case for determination by this court upon certain reservations, the first of which was that "if upon the . . . . facts" reported by the judge "the order dismissing the bill was right, and if upon those facts the plaintiff is not entitled to redeem, the order is to be affirmed, and a decree prepared and entered dismissing the bill."

In view of the state of the record with reference to the Renfrew deed, we think that the order dismissing the bill was right, because all the title of James H. Murphy in the prop

erty seems to have passed to Renfrew free from the plaintiff's equitable right, and hence a conveyance from James to the plaintiff would be of no avail. And for the same reason she is not entitled to a decree allowing her to redeem.

But it may be remarked that there was no need of the proposed amendment. All the parties were before the court, and their rights, both as to priority of title and of redemption, could have been settled by the decree upon the bill as it now stands. The fact that more than a year has expired since the execution sale is of no consequence since the bill was brought within the year.

The result is that upon the report as it stands the bill should be dismissed. But inasmuch as there is quite a large interest in the property to which but for the deed to Renfrew the equitable right of the plaintiff would attach, and there has been no actual finding as to whether he did have notice in fact or was a purchaser for value, we are disposed, in view of the manifest equity of the plaintiff's case, to allow the plaintiff to make an application to the trial court to have the case reopened and the report amended so as to contain a finding upon these points. Unless such an application be made and allowed within sixty days the bill is to be dismissed. If the report be so amended then there is to be a further hearing, if necessary, upon the report as amended, such hearing to be only upon the question of the effect of the deed to Renfrew upon the rights of the plaintiff.

So ordered.

A Mutual Mistake as to the legal effect of an instrument, by the parties thereto, may constitute ground for a reformation in equity: See Hausbrandt v. Hofler, 117 Iowa, 103, 94 Am. St. Rep. 289; monographic note to Williams v. Hamilton, 65 Am. St. Rep. 488. See this principle applied to conveyances in Whitmore v. Hay, 85 Wis. 240, 39 Am. St. Rep. 838; Haussman v. Burnham, 59 Conn. 117, 21 Am. St. Rep. 74. A mortgage executed by a husband and wife may be reformed so as to include real property omitted therefrom by mistake: Herring v. Fitts, 43 Fla. 54, 99 Am. St. Rep. 108.

Quitclaim Deeds are discussed at length in the monographic note to Babcock v. Wells, post, p. 849.

BACHANT v. BOSTON AND MAINE RAILROAD.
[187 Mass. 392, 73 N. E. 642.]

CARRIERS-Termination of Carriage.-If a carrier has not provided a freight-house for the storage of merchandise and expects consignees to unload their goods directly from its cars, the transportation of grain cannot be considered as ended or the carrier released until the consignee has been notified and the car placed where it can be conveniently unloaded. (p. 409.)

CARRIERS, Right to Rely upon Employé's Assurance that a Place is Safe.-Where one going to a railway station with a wagon for grain is by the agent shown to a car and told to back up to it, and that it was all right, he is justified in relying on this statement as an assurance that the place where the grain is to be unloaded is safe. (pp. 409, 410.)

CARRIERS, Delivery, Duty to Supply Safe Place.-A common carrier is required to provide a safe and proper place for the delivery of goods which have been shipped by it. (p. 410.)

CARRIERS, Right of Persons Unloading Freight.-One unloading freight from a car of a railway at a point where it has been placed for that purpose by the carrier has the right to assume that while thus engaged he will not be subjected to injury in person or property by the negligence of the carrier or of its agents. (p. 410.)

CARRIERS, Negligence of, What Constitutes.-To place a car at a point to be there unloaded and then to run its locomotive so as to come into collision with a team engaged in such unloading is evidence of negligence on the part of the carrier in the management of its business. (pp. 410, 411.)

CARRIERS—Risk of Injury, When not Assumed by Person Unloading Car.-If a person having grain to unload from a railway car asks permission to do so, he does not assume all risks incident to the situation, where the car had by the carrier been placed in the position where it was for the purpose of being there unloaded, and the grain, if delivered at all, must be taken out where the car had been placed by the carrier, and it appears that the person thus unloading did not know there was danger from collision from passing trains. (p. 411.)

EVIDENCE, Declarations, When not Part of the Res Gestae.— Whatever is said by an agent of the carrier, after an accident, relating to the use of a spur track as a delivery track is a statement not made in the performance of a duty and cannot bind his principal as an admission of liability. (p. 411.)

CARRIERS, Evidence of Custom as to the Place of Unloading Freight. Where an accident has occurred from a collision of a railway train with a wagon being used to unload freight from a car, evidence that the place where such car was is the place where other consignees of freight or their servants were told by the station agent to go into or use for the purpose of unloading goods is admissible. (p. 412.) CARRIERS.-An Instruction Given by a Station Agent of a Railway to Consignees or their servants as to the place to go into or use for the purpose of unloading goods from cars is within the scope of his employment and binds his principal. (p. 412.)

Action of tort for injury to the plaintiff's team. Verdict for the defendant, and the plaintiff alleged exceptions.

A. T. Saunders, for the plaintiff.

C. M. Thayer and A. H. Bullock, for the defendant.

393 BRALEY, J. This is an action of tort to recover for injuries to the plaintiff's harnesses, horses and wagon, alleged to have been caused by the defendant's negligence while unloading grain from a car at its station in the town of Weston. The defendant had not provided a freight-house for the storage of merchandise, and apparently consignees were expected, on receiving notice that consignments were ready for delivery, to unload their goods directly from the cars.

In accordance with this system of dealing, the transportation of the grain could not be considered as ended or the carrier released by delivery until the consignees had been notified and the car placed where it could be unloaded conveniently by them: Thomas v. Boston etc. R. R. Co., 10 Met. 472, 477, 43 Am. Dec. 444; Norway Plains Co. v. Boston etc. R. R. Co., 1 Gray, 263, 272, 61 Am. Dec. 423; Kimball v. Western R. R. Co., 6 Gray, 512, 544; Rice v. Boston etc. R. R. Co., 98 Mass. 212; Rice v. Hart, 118 Mass. 201, 208, 19 Am. Rep. 432; Independence Mills Co. v. Burlington etc. Ry. Co., 72 Iowa, 535, 2 Am. St. Rep. 258, 34 N. W. 320.

394

By the location and arrangement of the defendant's tracks, to do this the car had been run upon a spur track so located that it could be reached and unloaded only from one side. To reach the car it was necessary to back a team into a triangular space between this spur track and a sidetrack, which connected at each end with the main track, and was used to enable trains meeting at the station to pass each other. This space was shown by the testimony to be from ten to thirteen feet wide at the end near the highway, and gradually narrowing until it reached a point where the spur track joined the sidetrack.

The plaintiff, who was under a contract with the consignees to unload the grain, sent his servant Coté with a team and the freight bill to the station. Upon delivery of the freight bill to the station agent, one Cole, who for this purpose represented the defendant, Coté testified that this conversation took place: "He showed me a car and told me to back up there; it was all right." In connection with the duty imposed on the defendant Coté was justified in relying upon this statement as an as

surance that the place where the grain was to be unloaded was safe.

Two loads were taken out the first day without accident, but on the morning of the second day, when for the purpose of getting the third load the wagon and horses were placed be tween the tracks with the wagon close to the side of the car, and opposite the door, they were struck and damaged by one of the locomotives of the defendant that was passing over the sidetrack.

On this evidence the jury could have found that they were there properly with the knowledge and direction of the defendant's agent, and that in backing up to the car in the manner described, as safe a position was taken as any that could have been occupied at the time of the accident.

It could have been found further that the car while being unloaded was in such a place that the team would be likely to be struck by passing trains, and that a proper place for the delivery of the grain had not been provided.

Under its contract as a common carrier the defendant was 395 required to provide a safe and proper place for delivery: Jewell v. Grand Trunk Ry. Co., 55 N. H. 84, 91; Independence Mills Co. v. Burlington etc. Ry. Co., 72 Iowa, 535, 2 Am. St. Rep. 258, 34 N. W. 320; Anchor Mill Co. v. Burlington etc. Ry. Co., 102 Iowa, 262, 71 N. W. 255.

The plaintiff or his servant, while unloading, was not obliged to be in a state of continual apprehension that locomotives or cars might run over the sidetrack and come into collision with the team, nor was he required constantly to observe the track to avoid such a collision. He had the right to assume that while thus engaged, at a place designated by the defendant, he would not be subjected to injury in person or property by its negli gence: Pratt v. New York etc. R. R. Co., 187 Mass. 5, 72 N. E. 328.

Neither the consignees nor those lawfully acting for them were obliged thus to take the chance of injury, and they were entitled while at work in the place prescribed by the defendant to be free from the danger of being run down by trains in its control: Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 372, 87 Am. Dec. 644; Hathaway v. New York etc. R. R. Co., 182 Mass. 286, 65 N. E. 387, and cases cited.

To place the car, and then to run its locomotive so that it came into collision with the team, was evidence of negligence in the management of its business at the station. Both acts