making the claim in the manner required by the contract of shipment. See St. Louis, I. M. & S. R. Co. v. Starbird, supra.

peared to have charge of the delivering and I was nothing to prevent him, within five days unloading of the cars," and, after complain- after the horse was taken from the car, from ing to him of the damage to the horse, and stating, "He is entered here to race here tomorrow," this man told him to take the horse and "do everything he could to get the [2] The plaintiff argues that the clause in horse well and that they would pay him the contract requiring notice in writing withboard and damages." There was further in five days was waived by the defendant conversation and the plaintiff removed the and he relies on the conversation with "the horse. He testified that it was impossible to railroad man who appeared to have charge state the extent of the injury to the horse of the delivery and unloading of the cars" for several months, and that two or three to prove this waiver. In Metz v. Boston & months after this he wrote the agent at Pal- Maine Railroad, 227 Mass. 307, 116 N. E. mer. One Whittemore, "a freight and pas-475, it was decided that the carrier had no senger agent at Palmer," testified that the authority to waive the provisions of a conplaintiff on the morning of October 2, 1912, tract requiring a written notice. In that told him that one of his horses was badly case the shipment was made in interstate injured and asked him what "he had better commerce. do about it." The agent replied he had "better take the best care of his horse" and to let him know the result. He did not consider that any claim had been made against the defendant and heard nothing further until the following March, when he received a letter from the plaintiff.

The plaintiff relied on the second count of his declaration. The jury found the horse was injured by reason of the defendant's negligence and assessed damages at $364.91. The case is here on the report of the presiding judge.

[1] The plaintiff contends that the stipulation of the contract requiring a claim for damage to be in writing, verified by the shipper and delivered to the carrier's agent within five days from the time of the removal of the horse from the car, is unreasonable and therefore invalid.

In an interstate shipment of live stock under a contract designated "Limited Liability Live Stock Contract," requiring a claim for damage to be made in writing, verified by the affidavit of the shipper and delivered to the carrier within five days from the time the stock is removed from the cars, it was held that the stipulation was a reasonable one and controlling on both the parties to the contract, the court saying:

"We need not stop to consider whether the requirement of the live stock contract that a claim for damages should be presented within five days from the time the stock was removed from the cars was reasonable or not, for this question has been answered in favor of the reasonableness of such stipulation." Erie Railroad Co. v. Stone, 244 U. S. 332, 37 Sup. Ct. 633, 61 L. Ed. 1173; citing Northern P. R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905; St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917.

"Waiver by the railroad [corporation] of an obligation resting on the shipper or consignee would operate to that extent to create a preference in favor of that particular shipper or consignee and a discrimination against all others to whom a like concession is not made."

It may well be that this rule and the reatrastate and interstate shipment, but we do sons for it are appropriate both to an innot consider it necessary to decide this question as there was no evidence in the case at bar to show that the plaintiff was released from the terms of the contract by any authority of the defendant. There is nothing to show that the person with whom the plaintiff talked when the horse was taken from the car had any authority, expressed or implied, to alter the written contract of the carrier, nor was he held out to the plaintiff as having such authority. Even if it could be found that the plaintiff talked with Whittemore "a freight and passenger agent at Palmer, Mass.," he was not shown to have any such power. A station agent cannot bind his principal by admissions which in effect substitute a new agreement in place of the agreement of the parties, and deprive the defendant of the requirements of a written contract entered into by the shipper and the carrier. No such authority was given to the station agent and there was no rule or regulation permitting him to change the contract. See Boston & Maine Railroad v. Ordway, 140 Mass. 510, 5 N. E. 627; Wellington v. Boston & Maine Railroad, 158 Mass. 185, 33 N. E. 393; Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396, 73 N. E. 642, 105 Am. St. Rep. 408; Angle v. Miss. & M. R. Co., 18 Iowa, 555.

The evidence admitted in Lane v. B. & A. R. R., 112 Mass. 455, did not amount to a The same rule should be applied in an in- modification of the contract; it was merely trastate shipment. The contract was equally the admission of the freight agent in the binding on both parties, whether it had ref-performance of his duty, when investigations erence to interstate or intrastate commerce. were made concerning the loss of the freight The regulation as to time of notice was valid demanded. See in this connection Green v. and the plaintiff should have complied with it. B. & Lowell R. R., 128 Mass. 221, 35 Am Before the horse was removed the plaintiff Rep. 370. knew it was injured, although he did not know the full extent of the injury. There

[3] There is nothing in the plaintiff's contentions that the contract was defective be

the trial court could have saved all his [4-6] It also is plain that the petitioner in Where petitioner for mandamus did not trav- rights by exceptions duly taken to the reerse the answer, but joined issue, the material fusal of the respondent to recognize him as facts alleged in the answer are to be taken as true under Rev. Laws, c. 192, § 5, providing an attorney at law entitled to practice in that on return of the order of notice, person our courts. Nor is any error of law shown required to appear shall file answer showing in the allowance of the respondent's motion

to amend his answer, or in the refusal of the petitioner's motion to vacate the order and strike from the record the present answers and appearances of attorneys, even if an order previously had been entered denying the petition. The allowance of the respondent's motion was in the discretion of the single justice. And while it would have been proper for the Attorney General to have appeared for the respondent, he is not required to act, and the procedure followed is sanctioned by our decisions for over a century. Commonwealth v. Justices of the Court of Sessions, 5 Mass. 435; Van Ingen v. Justices of the Municipal Court, 166 Mass. 128, 44 N. E. 121; Crocker v. Justices of the Superior Court, 208 Mass. 162, 94 N. E. 369, 21 Ann. Cas. 1061; Ashley v. Justices of the Superior Court, 228 Mass. 63, 116 N. E. 961. [7, 8] The petitioner did not traverse, and having joined issue, all the material facts alleged in the answer are to be taken as true. R. L. c. 192, § 5; Hill v. Mayor of Boston, 193 Mass. 569, 575, 79 N. E. 825. It is certain from the amended answer and from the record for which the single justice sent and had before him without any exception being taken, that at the time when the petitioner was denied recognition he had been disbarred, and the judgment of disbarment had not been modified or annulled. Boston Bar Association v. Casey, 196 Mass. 100, 81 N. E. 892. It follows under R. L. c. 165, § 45, as amended by St. 1914, c. 432, making it a criminal offense for a disbarred attorney to continue thereafter to practice law, that the petition cannot be maintained. Boston Bar Association v. Casey, 227 Mass. 46, 116 N. E. 541.

ITY.

Where testator left his property in trust, and the widow and son were appointed executors and trustees, and the son told manufacturers who sold shoes to testator's retail shoe stores that he and his mother owned the stores and were going to continue business in the name of the estate, relying on which statements the manufacturers continued to ship goods to the stores, the son and his mother were liable as executors, and not as trustees, to the manufacturers. 2. EXECUTORS AND ADMINISTRATORS 93(1) -CONTINUING TESTATOR'S BUSINESS-LIABILITY OF ESTATE-RIGHT OF RELIANCES OF CREDITORS.

A firm manufacturing shoes, so far as concerned the liability of the estate, had no right to rely on the statement of their deceased customer's son that the estate had been left to his mother and himself, that they owned the retail shoe stores, and that they were going to continue the business in the name of the estate, the

firm knowing that testator was dead, and being chargeable with knowledge of what the probate far as they seek to charge it with liability. records would disclose touching the estate so 3. EXECUTORS AND ADMINISTRATORS 93(1) CONDUCT OF TESTATOR'S BUSINESS BREACH OF TRUST-LIABILITY OF ESTATE.

tor's estate to carry on his retail shoe business The use by executors of the assets of testawas a violation of their trust, and the estate was not liable for debts incurred by the executors in conducting the business as a financial ad4. EXECUTORS AND ADMINISTRATORS 93(1) DEALING WITH EXECUTORS KNOWLEDGE OF FACTS.

venture.

Where the circumstances brought to the had sold to testator should have put them on knowledge of a firm of shoe manufacturers who inquiry as to the authority of his executors to continue his retail shoe business, they are affected with knowledge of the facts such inquiry would have revealed; actual knowledge not being necessary to charge the firm with notice. 5. TRUSTS 356(1)

RECEIVING TRUST
FUNDS WITH KNOWLEDGE OF BREACH-LIA-
BILITY TO ACCOUNT.

trustee in breach of the trust, becomes himself
One who receives, with notice, money of a
a trustee, and liable to account as such.
6. EXECUTORS AND ADMINISTRATORS 93(1)
-CONTINUANCE OF BUSINESS BY EXECUTORS
REPRESENTATION BY EXECUTOR LIABIL-
ITY OF MINOR BENEFICIARIES.

The inaccurate or deceitful statement of tes-
tator's son, executor with his mother of the
will, made to a firm of shoe manufacturers, that
they had been left testator's shoe stores, and
would continue the business in the name of the
estate, could not affect the rights of minor ben-
eficiaries, remaindermen under the will.
7. EXECUTORS AND ADMINISTRATORS
-CONTINUANCE OF BUSINESS-SALES TO ES-
TATE-RESCISSION.

93(1)

Where a firm of shoe manufacturers who had sold to testator's retail stores, on learning that testator's son and the widow, executors, had no authority to continue the business, instead of rescinding sales and taking back their goods, took a mortgage on testator's realty, executed by the son and widow as trustees, as security for their claim, having thus ratified sales to the estate, they could not retrace their steps and rescind.

8. TRUSTS 358(1)

FOLLOWING TRUST PROPERTY-IDENTITY OF PROPERTY.

Where a firm of shoe manufacturers, charged with notice that testator's son and widow were not authorized to continue the business, sold shoes to testator's retail stores, a sale at a single price of these and all other goods in the stores having been made by administrators de bonis non, the firm is not entitled to any part of the fund as their proportionate share; there being no way of dividing the fund.

9. EXECUTORS AND ADMINISTRATORS 93(1) -CONTINUANCE OF TESTATOR'S BUSINESS— RIGHT OF CREDITORS-UNJUST ENRICHMENT.

the principal of unjust enrichment or to equitaThe firm cannot appeal for reimbursement to ble doctrines; the stock of goods to which they contributed having been sold by administrators de bonis non.

151

10. EXECUTORS AND ADMINISTRATORS
-CONTINUANCE OF BUSINESS-MORTGAGE IN
PARTIAL PAYMENT FOR GOODS-VOID CHAR-
ACTER.

The mortgage given on testator's realty by the son and widow, as executors, in partial payment for goods so furnished, was void; the continuance of the business being beyond the authority of the executors to the knowledge of the firm.

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

11. APPEAL AND ERROR FINDING IN EQUITY.

1009(1)-REVIEW- of Essex, and said appointees duly qualified by giving bond.

Though it is the duty of the Supreme Judi- (5) Among the assets left by said Peter Doncial Court on appeal in equity cases to examine nelly was a certain piece of land with the buildthe evidence and decide according to its judgings thereon located in said Lynn, and bounded ment, giving due weight to the finding of the and described as follows: * * trial court, the trial court having had the advantage of seeing the witnesses, his finding will not be reversed unless plainly wrong. 12. EXECUTORS AND ADMINISTRATORS 93(1) -UNAUTHORIZED CONTINUANCE OF TESTATOR'S BUSINESS-LIABILITY OF CREDITORS FOR PAYMENTS.

Where there was no wasting of testator's estate by the unauthorized operation of his retail shoe stores for 20 months after his death by his executors, his son and widow, a firm of shoe manufacturers, which, with notice, sold goods to the estate for the stores, is not liable to return payments made by the executors on ac count of the goods delivered; the payments having been made for an equivalent in goods furnished.

Appeal from Superior Court, Essex County; Jabez Fox, Judge.

(6) Immediately upon their appointment as executors, said Francis J. Donnelly and said Annie Donnelly without authority of the probate court, and without any authority by said will of said Peter Donnelly undertook to carry. on a retail shoe business in the city of Lynn which had been conducted by said Peter Donnelly prior to his death.

(7) In the course of conducting said retail shoe business said Francis J. Donnelly or said Francis J. Donnelly and said Annie Donnelly incurred indebtedness to a firm known as Alden, Walker & Wilde, of which firm the defendant is a copartner, to the amount of $4,500, which indebtedness was for shoes sold and delivered by said firm and which indebtedness your petitioners say was the personal indebtedness of said Francis J. Donnelly or of said Francis J. Donnelly and said Annie Donnelly and was in no way the indebtedness of the trust estate left by said Peter Donnelly.

(8) On or about the eighth day of March, 1916, said Francis J. Donnelly and said Annie Donnelly to secure the payment of their said personal indebtedness to said firm of Alden, Walker & Wilde, purporting to act in their capacity as trustees under the will of said Peter Donnelly, gave to said Frederick L. Alden a mortgage on the real estate mentioned in paragraph 5 for $4,500, copy of which mortgage is hereto annexed and marked B, and which mortgage was recorded by the defendant in the Essex South District Registry of Deeds, Book 2323, page 546.

Bills to set aside a mortgage by Annie J. Donnelly and others against Frederick L. Alden and others and by Alden and others against Donnelly and others to impress trust upon a fund held by the administrators de bonis non of the estate of Peter F. Donnelly, grandfather of the first petitioners, and cross-bill by the administrators to recover back moneys paid by Peter Donnelly's executors to Alden and others. From the decree granting relief in suit to set aside the mort(9) The petitioners say that there was no gage, defendant Alden appeals. Decree afconsideration for said mortgage other than the firmed, bill in suit by Alden and others to personal indebtedness of said Francis J. Donnelimpress trust dismissed, and in suit by the ly and said Annie Donnelly for the goods sold administrators to recover payments decree them as hereinbefore set forth, and that said Francis J. Donnelly and said Annie Donnelly ordered to be entered dismissing the cross-had no right or authority as trustees under the

bill.

will of said Peter Donnelly, or in any other

The bill of complaint in the suit to set capacity to mortgage said real estate belonging aside the mortgage is as follows:

(1) The petitioners are minors and bring this petition by Katherine Donnelly, of said Lynn, their mother, guardian and next friend.

(2) The petitioners are the children of Francis J. Donnelly, of said Lynn, and the grandchildren of Peter Donnelly, deceased, late of Lynn.

to the trust estate to the defendant for such indebtedness, and the petitioners are informed and believe, and thereupon aver, that the defendant at the time of receiving said mortgage was fully aware of the limitations upon said Francis J. Donnelly and said Annie Donnelly, as trustees as aforesaid, and was fully aware that they had no authority to give such mortgage and obtained said mortgage by threatening to begin suit against said Francis J. Donnelly and said Annie Donnelly for the price of the shoes so sold them.

(10) The petitioners by virtue of said will have a vested remainder in said real estate which is likely to suffer or to be wiped out providing said mortgage is allowed to stand, and the petitioners have no plain, adequate and complete remedy at law.

(3) Said Peter Donnelly died on the 5th day of July, 1914, leaving a will which was duly admitted to probate, by the terms of which will all of said Peter Donnelly's estate was left to his wife, Annie Donnelly, his son, Francis J. Donnelly, and his daughter, Annie J. Donnelly, in trust, nevertheless to invest carefully, the net income to be paid to his said wife during her lifetime and at her death the net income to be paid to his said children, Francis J. Donnelly and Annie J. Donnelly, or the survivor of them during their lives, and at the death of the survivor of them to convey and divide per capita Edward J. Flynn and William J. Holbrook, the entire estate amongst the children of said both of Boston, for appellant. H. D. LinFrancis J. Donnelly and said Annie J. Don-scott and J. J. Doherty, both of Lynn, for nelly.

Petitioners asked for cancellation of said mort

gage.

appellees.

(4) Said Annie J. Donnelly died during the lifetime of said Peter Donnelly leaving no children. Said Francis J. Donnelly and said Annie RUGG, C. J. [1] These are suits growing Donnelly the widow are still living. Said Francis J. Donnelly and said Annie Donnelly were out of the estate of the late Peter Donnelly, appointed executors under the will of said Peter hereafter called the testator. He died in Donnelly on the 3d day of August, 1914, and July, 1914, a resident of Lynn. By will he were appointed trustees under said will on the 25th day of February, 1915, said appointments gave all his property to trustees, who also being made by the probate court for the county were executors, in effect upon the trust to

pay the income to his widow, Annie, during | who receives with notice money of a trust in her life, and thereafter to his son, Francis, breach of the trust, becomes himself a trusduring his life, the principal then to go to tee and liable to account as such. Trull v. the children of Francis, all of whom are now Trull, 13 Allen, 407; Shaw v. Spencer, 100 minors. The testator's property consisted in Mass. 382, 97 Am. Dec. 107, 1 Am. Rep. 115. part of two parcels of real estate and two [6] The finding of the judge that the firm, retail shoe stores in Lynn. The stores had as to the goods shipped by them after the been prosperous. Francis, who had assisted testator's death, did not suspect and had the testator in the stores, continued to carry no reason to suspect any breach of trust, on the business without change with the as- will not be overturned so far as it is a findsent of his mother after the testator's death. ing of fact. But the undisputed facts make Although the same persons were named as it plain as matter of law that their actual executors and trustees, they are liable in state of mind is of no consequence. The the former capacity under the facts here firm knew of the death of the testator. They disclosed. Welch v. Boston, 211 Mass. 178, ought to have inspected the probate records. 181, 97 N. E. 893. The defendants Alden, But they never did. If they had examined Walker and Wilde, hereafter called the firm, the records, the firm would have known that were shoe manufacturers who had sold shoes the executors had no authority to conduct to the testator. Shortly after his death the business. Ignorance of the law is no Francis told one of the firm that the estate excuse in this respect. The inaccurate or had been left to his mother and himself, that deceitful statement of Francis in this regard they owned the stores and were going to con- cannot affect the rights of the minor benetinue the business in the name of the estate ficiaries under the will. It confers no rights of Peter Donnelly. Relying on these state- upon the firm as against them or as against ments, the firm continued to ship goods to the trust property in which they have an inthe Donnelly stores. terest.

[7] The firm doubtless might have rescinded their sales to the executors on ascertaining the deceit practiced on them by Francis J. Donnelly and taken back their goods.

167 Mass. 1, 4, 44 N. E. 990, 57 Am. St. Rep. 427. But the firm did not elect to rescind the sale when the misrepresentations as to the way in which the business of the testator was left by him were discovered. On the contrary, after full knowledge of what the probate records revealed, they took a mortgage on real estate of the testator executed

their claim. With full knowledge they affirmed the transactions and for business reasons chose to try to secure what they could in that way. It is too late now to undertake to retrace those steps.

[2-5] The firm had no right to rely upon the statements of Francis so far as concerns the liability of the estate. They knew that their former customer was dead. They were chargeable with knowledge of what the pro- Rackemann v. Riverbank Improvement Co., bate records of this commonwealth would disclose touching his estate so far as they seek to charge it with liability. The executors were not authorized either by the will or by the probate court under St. 1910, c. 411, to carry on the business of the testator. These facts would have been ascertained if the probate record had been examined. The firm also would have discovered, either from in the name of the trustees, as security for that record or from the investigation which naturally would have followed a reading of the will, that the remaindermen chiefly interested in the estate were minors without guardian.. Hence the firm further would have discovered that the executors were not [8] There is no finding that the goods furand could not have been authorized by all nished by the firm, which were in the store the parties in interest to carry on the busi- at the time the administrators de bonis non ness of the testator. The use by the execu- of the estate of the testator took possession, tors of the assets of the estate for that pur- could be identified. An examination of the pose was a violation of their trust. As evidence convinces us that, while they could matter of law the estate of the testator have been identified and separated, this was would not be liable for debts incurred by not done, and therefore it is impossible to the executors in conducting the business as determine now how much there was or what a financial adventure. Stearns v. Brookline, was its value. If it be assumed that at 219 Mass. 238, 240, 107 N. E. 57. Actual that time the firm might have rescinded knowledge of all the facts is not necessary the sale and replevied from the stock the in order to charge the firm with notice of shoes furnished by them, that remedy or its them. The circumstances that confessedly equivalent cannot now be invoked. One were brought home to the knowledge of the sale at a single price having been made of firm were such as ought to have put them these and all other goods in the stores, there on inquiry, and they are affected with knowl- is now no way of dividing the fund and edge of the facts which such an inquiry awarding to the firm the part which the would have revealed. Bancroft v. Consen, goods furnished by them contributed to the 13 Allen, 50; Conners v. Lowell, 209 Mass. sum received by the administrators de bonis 111, 118, 119, 95 N. E. 412, Ann. Cas. 1912B, non. This is not a case of fraudulent or 627; Broadway National Bank v. Adams, reckless intermingling of goods against the 133 Mass. 170, 173, 43 Am. Rep. 504. One rights of the firm and the principle of Peo