be given to all parties adversely interested who | O'Neill together with proposed issues for a shall have entered their appearances in the jury," and stating that the original was held probate court, and that it may be served in the manner provided by the rules of the court for before filing pending a reply. Both the prothe service of notice, but that the court may ponent of the will and her attorney testified order further notice, and chancery rule 38 and that no notice of the entry of the appeal had common-law rule 30, providing that all notices been received. There was no evidence that shall be in writing, served personally or by mail, contestants of a will, who intend to appeal from any written notice had been sent other than a decree of the probate court allowing it, must the letter of January 18, 1917. give the proponent written notice on entry of The single justice refused to rule as matthe appeal, or as soon thereafter, as is rea-ter of law that sufficient notice had been giv. sonably practicable; oral notice of intention to appeal, or of the fact that the appeal has been perfected, being insufficient.

2. WILLS 367-PROBATE PROCEEDINGS APPEAL REQUIREMENT OF WRITTEN NOTICE -JURISDICTIONAL CHARACTER.

The requirement of Rev. Laws, c. 162, § 11, providing that in a probate appeal written notice of the entry of the appeal shall be given to all parties adversely interested, who shall have entered their appearances in the probate court, etc., is jurisdictional, unless waived. 3. WILLS

-

367-PROBATE PROCEEDINGS NOTICE OF ENTRY OF APPEAL-COMPLIANCE WITH STATUTE.

It is not a compliance with Rev. Laws, c. 162, § 11, requiring written notice of entry of a probate appeal, to correspond with the adverse party weeks after the entry of the appeal concerning a matter which would be meaningless if no appeal had been entered; no power being conferred on the court to allow the giving of an original notice after the time for giving it has expired.

Exceptions from Supreme Judicial Court, Plymouth County.

Proceeding for allownace of the will of Denis O'Neill by Annie E. O'Neill, contested by John E. O'Neill and another. From a decree of the probate court allowing the will, contestants appealed to the Supreme Judicial Court. There was decree dismissing the appeal for want of jurisdiction, and remanding the case to the probate court for further proceedings, and appellants except. Excep

tions overruled.

James E. Kelley and David Flower, both of Boston, for appellants. Wm. J. Coughlan and Daniel R. Coughlan, both of Abington, for appellee.

RUGG, C. J. The probate court of Plymouth county entered a decree on December 11, 1916, allowing the will of Denis O'Neill, from which his heirs at law claimed an appeal. Written notice of the appeal was filed seasonably in the registry of probate, the appeal was duly entered in the supreme judicial court for the county on December 26, 1916, and a statement of objections was filed, all as required by R. L. c. 162, §§ 9 and 10. There was evidence that the heirs at law announced their intention to appeal at the hearing in the probate court. The proponent of the will testified that some time after January 18, 1917, she was told by one of her attorneys that the appeal had been entered. Under date of January 18, 1917, the attorney for the heirs at law wrote the attorney for the proponent of the will inclosing "copy of motion in the matter of the appeal from allowance of will of the late Denis

en, and to order further notice if sufficient notice had not been given, and granted a motion to dismiss the appeal. The exceptions of the heirs at law bring the case here.

[1-3] It is provided by R. L. c. 162, § 11, that in a case like the present "notice of the entry of the appeal shall be given to all parties adversely interested who shall have entered [their] appearances in the probate court, and it may be served in the manner provided by the rules of the court for the service of notices; but the court may order further notice." Although the practice in probate appeals follows that in equity, it is provided by chancery rule 38 that the rules of court as to practice at common law govern the giving of notice. It is provided by rule 30 of the common-law rules that "all notices

• shall be in writing" and served personally or by mail.

It is necessary under the statute that there be "notice of the entry of the appeal.". That notice by reference to the rule of court must be in writing. The statute and rule together ten notice must be given to the adverse parmean that upon the entry of the appeal writties. Oral notice of intention to appeal or of the fact that the appeal has been perfected is not enough standing alone. Chertok v. Dix, 222 Mass. 226, 110 N. E. 272. The appellee must enter his appearance within 30

days after the entering of the appeal. Equity rule 40. This implies that the notice to the adverse parties must be substantially contemporaneous with the entry of the appeal, that is, as soon thereafter as is reasonably practicable. This is the fair import of the decision in Bartlett v. Slater, 183 Mass. 152, 66 N. E. 631, where the history of the statute and rule is reviewed. No such notice was given. The requirement of notice is jurisdictional unless it is waived. Daley v. Francis, 153 Mass. 8, 26 N. E. 132. It is not a compliance with this essential prerequisite touching notice to correspond weeks after the entry of the appeal concerning a matter which would be meaningless if no appeal had been entered. Power is conferred by the statute upon the court to order "further notice" only after a timely original notice has been served. But no power is conferred to allow the giving of an original notice after the time for giving it has expired. Hack v. Nason, 190 Mass. 346, 76 N. E. 906. The case is in this respect quite different from Whitney v. Hunt-Spiller Mfg. Corp., 218 Mass. 318, 105 N. E. 1054. Ample relief may be afforded in proper cases by applica

tion to the court under R. L. c. 162, § 13, which gives broad power where required by justice to deal with instances where substantial or formal requisites in the prosecution of appeals have been omitted. Capen v. Skinner, 139 Mass. 190, 29 N. E. 651.

The question of waiver and compliance by the appellee with rule 5 of the common-law rules does not appear to have been raised before the single justice. If they were, they involved to a large extent questions of fact which must be taken by the general finding of the single justice to have been decided adversely to the heirs at law.

There is nothing to indicate that the appellee appeared generally or did anything more than to file the motion to dismiss.

Since no such notice of the entry of the appeal as is required by law was given, there was no error in granting the motion to dismiss the appeal which was directed to the jurisdiction of the court. Exceptions overruled.

(229 Mass. 576)

GAVIN V. DURDEN COLEMAN LUM-
BER CO.

(Supreme Judicial Court of Massachusetts.
Middlesex. March 4, 1918.)

1. LANDLORD AND TENANT 120(1)-SALE OF REVERSION RECOVERY OF RENT-APPOR

TIONMENT.

6. PRINCIPAL AND AGENT 145(4)-UNDIS-
CLOSED PRINCIPAL "ELECTION" TO PURSUE
AGENT.

by his default and the entry of judgment by
Bringing action against an agent, followed
plaintiff in ignorance of the existence of the
principal, is not an election to pursue the agent,
make a choice.
because there has never been an opportunity to

7. WITNESSES ~370(3)—BIAS-EXCLUSION OF
EVIDENCE.

tion to show bias of a witness by showing that
he had been sued to judgment by defendant and
cited into poor debtor court, where plaintiff
went on his bond, when the witness was de-
faulted and judgment was recovered against the
tion of the trial judge.
plaintiff as surety, was within the sound discre-
977(5)-DISCRETION

The exclusion of evidence on cross-examina

8. APPEAL AND ERROR

OF COURT-NEW TRIAL.

Motion for new trial was addressed to the

discretion of the trial court, and an exception

does not lie to its refusal.

Exceptions from Superior Court, Middlesex County; William Cushing Wait, Judge. Action of contract in two counts by Jennie I. Gavin against the Durden Coleman Lumber Company. There was verdict for plaintiff, and defendant excepts. Exceptions ordered sustained as to the first count, and overruled as to the second.

The first count was for use and occupation of premises; the second was on a claim assigned to plaintiff by her husband through an intermediary. The mortgage referred to Where owner of premises, in possession of in the opinion, executed September 17, 1914, tenant at will, monthly periods of tenancy runwas given by one Hunnewell, to whom the ning from the 4th of the month, sold the prem- title was transferred on that date, the mortises on the 17th of a month, she could not re-gage being for two months (60 days). Paycover for rent between the 4th and 17th, because the stipulated rent had not accrued and there can be no apportionment.

2. LANDLORD AND TENANT 120(1)—TENANT
AT SUFFERANCE BY CONVEYANCE OF REVER-
SION-LIABILITY TO PAY RENT TO GRANTEES
-STATUTE.

Plaintiff's title under which her tenant at will took possession was determined by the voluntary transfer of the reversion, and the tenant at will thereupon became a tenant at sufferance, and, under Rev. Laws, c. 129, § 3, after notice of the transfer, became liable to pay rent to the grantees.

3. PRINCIPAL AND AGENT 145(4)-UNDISCLOSED PRINCIPAL-ELECTION.

A person dealing with the agent of an undisclosed principal upon discovery of the principal may resort to him or to the agent at his 145(4)-UNDIS

election.

4. PRINCIPAL AND AGENT

CLOSED PRINCIPAL-ELECTION.

ment was not made, and the mortgage was foreclosed.

Paul Murray Lewis, of Boston, for plaintiff. Wm. Shaw McCallum, of Boston (John F. Barry, of Boston, with him), for defendant.

tiff seeks to recover rent of the defendant for PIERCE, J. On the first count the plainthe use and occupation of certain premises from August 4, 1914, to January 4, 1915, at $25 per month. There was evidence to warrant a finding that the defendant became a tenant at will and entered into possession of the premises August 4, 1914, under an implied contract made by the duly authorized agents of the plaintiff and defendant.

warranty deed, conveyed the entire prem[1, 2] September 17, 1914, the plaintiff, by ises and received simultaneously a mortgage deed to secure the purchase money. Decem

Where one who dealt with the agent of an undisclosed principal discovers the principal and elects which he will hold with full knowledge of the principal's liability, such election determines the rights and obligations of the parties. 5. PRINCIPAL AND AGENT 145(4)—UNDIS- ber 17, 1914, the mortgage was foreclosed CLOSED PRINCIPAL "ELECTION"-BRINGING and the plaintiff acquired the title. The deACTION AGAINST AGENT.

The bringing of action against the agent with knowledge of the liability of the newly discovered principal is not conclusive of an "election" to pursue only the agent, unless the action is followed to judgment.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Election.]

fendant occupied the premises for the time stated in the declaration, without the payment of rent and without notice of the transfer of title by the conveyance of the plaintiff or under the power of sale. Under these circumstances the plaintiff cannot re

ance.

cover for the rent between September 4 and [3-6] It is the settled law that a person September 17, 1914, because the stipulated dealing with an agent of an undisclosed prinrent had not accrued and there cannot be cipal may, upon discovery of the principal, an apportionment. Lamson v. Clarkson, 113 resort to him or to the agent with whom he Mass. 348, 18 Am. Rep. 498; Emmes v. deals at his election. Raymond v. Crown & Feeley, 132 Mass. 346; Hammond v. Thomp- Eagle Mills, 2 Metc. 319. And it is equally son, 168 Mass. 531, 47 N. E. 137. Nor can well settled that an election once made with there be a recovery of rent after the convey- full knowledge of the liability of the newly The title of the plaintiff, under which discovered principal, determines the right the defendant entered into possession of the and obligations of the parties. The requests, premises, was determined by the voluntary in substance, to rule that the bringing of the transfer of the reversion; the defendant action and taking judgment against the thereupon became a tenant at sufferance and agent, and the bringing of an action against after notice of the transfer, liable to pay the agent "for the same items claimed to be rent to the grantees if he continued in pos- recovered for in count two of this suit," was session. R. L. c. 129, § 3; Hollis v. Pool, 3 an election to hold the agent, could not have Metc. 350; Furlong v. Leary, 8 Cush. 409; been given. The bringing of an action Bunton v. Richardson, 10 Allen, 260; Pratt against the agent with knowledge of the liav, Farrar, 10 Allen, 519; Dixon v. Smith, bility of the principal, is not conclusive of 181 Mass. 218, 63 N. E. 419; Jones v. Don- an election unless followed to a judgment. nelly, 221 Mass. 213, 108 N. E. 1063. As Raymond v. Crown & Eagle Mills, supra; there is no evidence of notice of the aliena- Kingsley v. Davis, 104 Mass. 178; Estes v. tion of title, the plaintiff cannot recover for Aaron, 227 Mass. 96, 116 N. E. 392; Priestly use and occupation after September 4, 1914, v. Fernie, 3 H. & C. 977. The bringing of and the exception in this regard must be an action against the agent, followed by his sustained. default and the entry of judgment by the creditor in ignorance of the existence of the principal, is not an election because there has never been an opportunity to make a choice. Greenburg v. Palmieri, 71 N. J. Law, 83, 58 Atl. 297; Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.) 729, 8 Ann. Cas. 1024.

Upon the several issues raised at the trial upon the second count, notwithstanding the incomplete and somewhat inconsistent testimony of the witnesses, the jury would be warranted in finding that the assignor of the plaintiff expended the money and rendered the services at the times and to the amounts as they appear in the account annexed; that the money was expended and the services were rendered at the request of the Boston & Southern Lumber Company, a Massachusetts corporation; that the Boston & Southern Lumber Company in this transaction was the duly authorized agent and acted in behalf of the defendant the Durden Coleman Company a foreign corporation which had no place of business in this commonwealth; that the fact of the agency of the corporation was unknown to the assignor at the time the money was paid and the services were performed; that the items were charged and credit was given to the agent; that an action was brought against the agent to recover the first item of the account annexed, $325; that judg-. ment in default was entered; that execution issued; that the judgment is unsatisfied in whole or in part; that the plaintiff in the action was ignorant of the existence of a principal when he recovered judgment against the agent; that another action was brought against the agent to recover the sum claimed to be due upon the remaining items of the account annexed, and that the action is now pending.

*

*

[7] The exclusion of the evidence on crossexamination "to show bias of a witness by showing [he] had been sued to judgment by the defendant company, cited into poor debtor court, where the present plaintiff, went on his bond" when the witness was defaulted and judgment recovered against the present plaintiff as surety, was within the sound discretion of the judge, who does not appear to have exceeded his authority. Miller v. Smith, 112 Mass. 470, 476; Holden v. Prudential Ins. Co. of America, 191 Mass. 153, 156, 158, 77 N. E. 309; Commonwealth v. Phelps, 210 Mass. 109, 114, 96 N. E. 69.

No exception was taken to the charge and We therefore do not consider the argument of the defendant in relation thereto, other than to say we perceive no reversible error in its treatment of the evidence and of the requests for rulings.

[8] The motion for a new trial was addressed to the discretion of the court, and an exception does not lie to its refusal.

Exceptions sustained as to the first count and overruled as to the second count. So ordered.

(229 Mass. 557)

ises let to the defendant for the remainder ESSEX LUNCH, Inc., v. BOSTON LUNCH of the term upon a surrender or forfeiture

CO.

(Supreme Judicial Court of Massachusetts.

Suffolk. March 1, 1918.)

of the sublease for any breach of covenant; and this interest passed to the plaintiff by Kelsey's assignment. Patten v. Deshon, 1 Gray, 325; McNeil v. Kendall, 128 Mass. 79(1)-SUB- 245, 35 Am. Rep. 373; Dunlap v. Bullard, LEASE OR ASSIGNMENT ASSIGNMENT OF IN-131 Mass. 161; Collins v. Hasbrouck, 56 N. TEREST BY SUBLESSOR. Y. 157, 15 Am. Rep. 407; Doe v. Bateman, 2 Barn. & Ald. 168.

1. LANDLORD AND TENANT

Where a lessee let the entire premises to defendant for the remainder of his term, reserving the right to re-enter on breach of any of the covenants and to repossess the premises as of the lessor's former estate, the lease to defendant was an underlease, and not an assignment, and by the lessee's assignment of his interest to plaintiff, plaintiff acquired the right to use and enjoy the premises let to defendant on surrender or forfeiture of the sublease for any

breach of covenant.

As

2. LANDLORD AND TENANT 79(2)
SIGNEE OF INTEREST OF SUBLESSOR-ACTION
-"WASTE.'

The assignee of a sublessor's interest in the premises sublet acquired a property interest in them, which enabled it to maintain an action at law to recover damages for injury to that interest or a suit in equity to restrain the doing of acts amounting to "waste,' which is an unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in substantial injury.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Waste.] 3. LANDLORD AND TENANT 79 (2)-RIGHT

OF SUBLESSEE TO CUT HOLE IN WALL-AS-
SENT OF OWNER.

The owner of two leased buildings, by his permission in writing to a sublessee of one of the buildings to cut a hole in the wall between the two, could confer no right upon the sublessee, without the permission of the assignee of the sublessor's interest, to violate the obligations which the sublessee assumed by its covenant to keep the premises in such repair, order, or condition as they were in at the commencement of the term, and not to make or permit to be made any alteration or addition to the premises, nor to permit any hole to be made or drilled in the stone or brickwork, except as should be approved.

It is admitted by the defendant, or not denied, that it leased the adjoining premises and thereby acquired the occupancy of the stores situated on the ground floors of both buildings. These stores were separated from each other by a partition wall, which was the dividing wall between the two buildings.

With the written consent of the owner of both buildings, but against the protest of the plaintiff and in defiance of a notification of the plaintiff that under no circumstances could said wall be broken or any portion thereof removed, the defendant cut an opening eight to ten feet in length in the partition wall for the purpose of connecting both stores. The suit was heard before a justice of the superior court who filed a memorandum in these words:

"The owner of the two buildings having given permission, in writing, to cut the hole in the wall between the two buildings, this bill is dis

missed with costs."

[2, 3] The plaintiff, as assignee of the lease which Kelsey had given to the defendant, acquired a property interest in the leased premises which enabled him to maintain an action at law to recover damages for injury to that interest or a sult in equity to restrain the doing of acts which amount to waste, which, as defined in Delano v. Smith, 206 Mass. 365, 370, 92 N. E. 500, 501, 30 L. R. A. (N. S.) 474, "is an unreasonable or im. proper use, abuse, mismanagement or omission of duty touching real estate by one rightfully in possession which results in its

Appeal from Superior Court, Suffolk Coun- substantial injury. It is the violation of an ty; John F. Brown, Judge.

Bill by the Essex Lunch, Incorporated, against the Boston Lunch Company. From a decree dismissing the bill, plaintiff appeals.

Reversed.

Barton & Harding, of Boston, for appellant. A. C. Webber, of Boston, for appellee.

obligation to treat the premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act." "The test in such a case is not alone whether a material injury is done to the building, but whether it is altered in a material manner and to an exPIERCE, J. [1] Bert A. Kelsey, the les- tent beyond what is fairly implied from the see under a written lease, let the entire terms of the original contract of letting." premises to the defendant for the remainder Klie v. Von Broock, 56 N. J. Eq. 18, 37 Atl. of his term, reserving the right to re-enter on 469. Tried by this rule, the owner of the breach of any of the covenants "and repos- premises by his assent could confer no right sess the same as of the lessor's former es-upon the defendant without the permission tate," and then assigned all his interest in of the plaintiffs to violate the obligations the lease to the plaintiff. The lease to the which it assumed by its covenant "to keep defendant was an underlease and not an as- the said leased premises in such repair, orsignment. Prior to the assignment to the der and condition as the same are in at the plaintiff, Kelsey had a substantial interest commencement of the said term" and "not in the premises underlet to the defendant; to make or permit to be made any alteration he had the right to use and enjoy the prem- or addition to the said leased premises, nor

permit any hole to be made or drilled in the
stone or brickwork of said building,
* *
except such and in such place and manner
as shall have been first approved in writing
by the lessor."

It follows that the decree dismissing the bill must be reversed with costs; and it is So ordered.

(229 Mass. 573)

In re COMERFORD.

COMERFORD v. CONTRACTORS' MUTUAL
LIABILITY INS. CO.

(Supreme Judicial Court of Massachusetts.
Suffolk. March 4, 1918.)

was to be used in the construction of the building, he was injured. The subscriber, a firm of building contractors, was accustomed to employ an independent contractor to carry its material, tools and supplies from its yard to the place where they were to be used. The board found that the "conveyance of picks, shovels, wheelbarrows and of constructed and fabricated parts of a building from the storehouse of the subscribers to the premises where they are to be used, or are to be combined into a proposed structure which the subscribers have undertaken to erect, is a part of the business of such subscriber," and awarded the plaintiff compensation.

MASTER AND SERVANT 367 WORKMEN'S If a subscriber makes a contract with an COMPENSATION ACT RECOVERY BY EM- independent contractor to do the subscriber's PLOYÉ OF INDEPENDENT CONTRACTOR. work and the insurer would be liable to pay Under the Workmen's Compensation Act, (St. 1911, c. 751, pt. 3, § 17), the employé of an compensation if such work was executed by independent contractor can recover compensa- an employee of the subscriber, it is required tion from the subscriber, if he shows he was at to pay such compensation to the employee work when injured on premises under the con- of the independent contractor, if the work trol and management of the subscriber, or where is a part of "or process in" the trade or busithe contractor had agreed to perform the particular work, and, in addition, that his injury arose out of and in the course of employment, which was a part of the subscriber's trade or business, as in case of the removal of building materials and appliances by the servant of an independent contractor (it being customary for the subscriber to contract for the transfer of its materials) from the subscriber's yard to the place where the subscriber was to construct a building.

Appeal from Superior Court, Suffolk County.

ness carried on by the subscriber, and not merely incidental or ancillary thereto, and if the injury occurs "on, in, or about the premises on which the contractor has undertaken to execute the work for the subscriber or which are under the control or management of the subscriber." St. 1911, c. 751, pt. 3, § 17. Under this section the employee of a contractor can recover against the subscriber, if the employee shows he was at work on premises under the control and management Proceedings under the Workmen's Com- of the subscriber or where the contractor has pensation Act by Patrick Comerford, the agreed to perform the particular work, and, employé, opposed by the McDonald & Joslin in addition, that his injury arose out of and Company, the employer, and the Contrac-in the course of employment which was a tors' Mutual Liability Insurance Company, part of the subscriber's trade or business, the insurer. Compensation was awarded, to and not merely incidental or ancillary to it. be paid by the insurer, the award confirmed There was evidence to warrant the finding by decree of the superior court, and the in- that the carrying of building material and surer appeals. Decree ordered affirmed.

appliances from the subscriber's yard to the

Norman F. Hesseltine and J. Frank Scan-place where the building was to be erected, nell, both of Boston, for appellant.

CARROLL, J. The previous decision in this case (224 Mass. 571, 113 Ñ. E. 460), recommitted the case to the Industrial Accident Board for the introduction of further evidence upon the question whether the work performed by Comerford was a part of the business of McDonald & Joslin Co. or was merely ancillary and incidental thereto.

The board found that the workman, Patrick Comerford, was employed as a teamster by Connors, an independent contractor; that the subscriber, the McDonald & Joslin Co., engaged Connors to furnish a teamster to cart material, tools and supplies from its yard to the site of a building it was erecting at Mattapan.

On the morning of May 6, 1915, Comerford drove to the subscriber's yard and while engaged there in moving a window sill which

was a part of the trade or business carried on by the subscriber as a building contractor. Their removal was not merely ancillary or incidental to the work of constructing the building, and this work could not be contracted for so as to relieve the subscriber of the obligations imposed by the workmen's compensation act, even though it was customary for the subscriber to contract for the transfer of its materials. See Knight v. Cubitt & Co. L. R. (1902) 1 K. B. 31; White v. Fuller, 226 Mass. 1, 114 N. E. 829.

It was undisputed that the injury occurred while the employee was upon the subscriber's premises which were under its control and management, and where the contractor had undertaken to carry on the work. And as this work was a part of the subscriber's trade or business, the decree awarding compensation to the employee is affirmed. So ordered.

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