(143 N.E.) A conversation between husband and wife in a waiting room in a union station, which they were standing and by people coming and could be heard four or five feet from where in G. L. c. 233, § 20, and was admissible. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Private.] 4. Divorce 111-What wife called third party held admissible, though what third party said inadmissible. ownership on one side and a transfer form on [and that afterwards daughter came into room the reverse, is not a "stock certificate" with- where they were and was crying, warranted a in the meaning of G. L. c. 267, § 1, or whether finding that daughter heard conversation, the variance at most would not be harmless which made it admissible. under our statutes. See G. L. c. 277, §§ 22, 3. Witnesses 193-Conversation between 34, 35. But it is apparent from the record husband and wife in waiting room of depot that no alleged variance was claimed at the not "private" within statute. trial. After the filing of the motion and particulars above described, the specific certificate, with transfer on one side, was put in evidence. Throughout the trial the entire in-going, was not a "private" conversation, withstrument was referred to by counsel as the "certificate"; the only forgery involved was that of "Henrietta Goldsmith," on the reverse side thereof; the rulings requested by the defendant specifically referred to this name as written "on the certificate"; and throughout the charge (to which no exception was taken), the judge referred to the alleged forgery as In action by husband for divorce, testithat of "this certificate." The language of mony that wife called third person "various the motion for a directed verdict shows that names" in presence of husband was admissible it was based upon the alleged insufficiency of on examination of husband, though what third the evidence. It did not raise, and apparent-person afterward said respecting incident was ly was not intended to raise, the issue of variance. The defendant cannot now for the first time import the question of variance into the motion. Gillard's Case, 244 Mass. 47, 55, 56, 138 N. E. 384; Commonwealth v. Williams, 244 Mass. 515, 521, 139 N. E. 347. The claim of variance was made for the first time at the hearing on the motion for a new trial. It could not then be raised as matter of right. Commonwealth v. Morrison, 134 Mass. 189; Commonwealth v. Borasky, 214 Mass. 313, 321, 101 N. E. 377; Hallett v. Jordan Marsh Co., 240 Mass. 110, 133 N. E. 191. inadmissible. 5. Divorce 147-Whether shooting by wife was intentional held question for court. In action by husband for divorce for cruelty, whether or not shooting of husband by wife was intentional held question for court. 6. Divorce 27(6)-Shooting might constitute cruel and abusive treatment, though no intent to injure. Shooting off revolver by wife might have constituted cruel and abusive treatment of husband, even if she did not intend to shoot him. 7. Divorce 130-Evidence held sufficient to sustain finding of cruel and abusive treatment of husband. [3] There was no reversible error in the refusal to give the third, fourth and fifth requests. The subject-matter thereof, so far In action by husband for divorce, evidence as applicable to the facts in evidence, was covered by the charge and in terms sufficient-held to sustain finding of cruel and abusive ly favorable to the defendant. Exceptions overruled. LINNELL v. LINNELL. (Supreme Judicial Court of Massachusetts. Hampden. May 20, 1924.) 1. Divorce Whether conduct of libelant amounted to a justification for cruel and abusive acts of libelee, or barred a divorce, held for trial judge. 2. Witnesses 193-That daughter came into room crying after argument between parents warranted admission of conversation between parents. In an action by husband for divorce for cruelty, testimony of plaintiff that his daughter was in next room, that door was open, that wife's voice was extremely angry and excited, treatment. Exceptions from Superior Court, Hampden County; H. A. King, Judge. Libel for divorce by Herbert P. Linnell against Laura S. Linnell on grounds of cruel and abusive treatment, in which libelee filed a cross-libel. The court found for libelant, and entered a decree, and the libelee brings exceptions and appeals. Decree affirmed, and exceptions overruled. R. P. Stapleton and James O'Shea, both of Holyoke, for appellant. J. B. Ely and W. C. Giles, both of Springfield, for appellee. CROSBY, J. The grounds alleged in the libel are cruel and abusive treatment on or about July 19, 1921, and on divers others times and occasions. Specifications were filed giving the time, place and acts relied on to sustain the allegations. The trial judge found for the libelant, and a decree nisi was entered. The libelee appealed, and al For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes so excepted to the admission of certain evidence, and to the refusal of the court to give certain requests for rulings. daughter heard the conversation, which made it admissible. Lyon v. Prouty, 154 Mass. 488, 490, 28 N. E. 908. [3] The court admitted, subject to the exception of the libelee, a conversation be tween the parties which occurred in the waiting room of the Union Station in Springfield. This conversation was objected to on the ground that it was a private conversation between husband and wife. There was evidence that when it took place from 30 to 40 persons were there "going and coming, there was a crowd coming and going all the time," and that any one who had been listening could have heard it with * * The libelant testified that on one occasion the libelee attempted to strike him with a mirror in the presence of his son; that she kicked him, called him vile names, and accused him of murdering his first wife and of attempting to kill her; that in July, 1920, she accused him of various misdeeds and threatened to do him injury; that on another occasion she kicked him and he was obliged to restrain her by force; that about April 1, 1921, he offered her some money, which she refused and struck him, and he took hold of her arms, and she kicked him | in 4 of 5 feet from where they were standand struck him in the face with her fist; that he started to go out of the room and she threw a heavy vase, striking him in the back of his head; that she administered cruel and excessive punishment to his daughter (who was 10 years old and the child of a former marriage); that she threatened the child with violence if she talked to her father and punished her so severely as to cause black and blue marks on her legs and neck. He further testified that on July 19, 1921, he went home to get the keys to a trunk; that as he stepped out of his room into the hallway he heard a shot and felt the sting of a bullet through his leg; that he looked up and his wife was standing about 14 feet from him with a gun "leveled at [him] at the height of her hip"; that she called him indecent names and threatened to kill him; that he told her he was leaving the house, and she replied: ing. The admission of this evidence shows no ground of exception. In these circumstances it could not have been ruled as matter of law that what was said by the parties in a room where 30 or 40 other persons were present was a private conversation within G. L. c. 233, § 20. The evidence in the case at bar is plainly distinguishable from that held inadmissible in Freeman v. Freeman, supra. [4] The court admitted, subject to the exception of the libelee, testimony of the libelant that he and one Dodson (who was treasurer of the company of which the libelant was president) were about to leave on a business trip and that he so stated to the libelee; that she accused him of lying, said that they were going to meet some women, and called Dodson "various names." The testimony to the effect that she called Dodson names in the presence of the libelant was "You had better. If you ever come in again competent, but what Dodson afterwards I will kill you." 11] The libelee denied that she had ever illtreated or abused her husband, but admitted that she fired the pistol. She testified that she did not intend to shoot him. Whether the conduct of the libelant amounted to a justification for the acts of the libelee or barred a divorce was for the trial judge. Lyster v. Lyster, 111 Mass. 327; Freeman v. Freeman, 238 Mass. 150, 160, 130 N. E. 220. [2] The libelee excepted to the admission of a conversation between her husband and herself. He testified that his daughter was in the next room, and that the door was open, the distance from one room to the other being 10 or 12 feet, "just across the hall"; that his wife's voice was extremely angry and excited; that afterwards the daughter came into the room where they were, and she was crying. This evidence, if believed, warranted a finding that the said respecting this incident was inadmissible; yet its admission could not have been prejudicial to the libelee. [5-7] The record states that the libelee's original requests for rulings have been lost, but it is agreed that the first and eighth were refused; the others are not before us. The first could not have been given. It was a question for the court whether or not the shooting was intentional. The eighth was alSo rightly refused; if she did not intend to shoot him when she discharged the pistol, still her act might well have been found to constitute cruel and abusive treatment. If the trial judge believed the testimony of the libelant, there was ample evidence to justify a finding that the allegations of the libel had been sustained; and as no error appears in the admission of evidence or in the refusal to give the first and eighth requests, the decree must be affirmed, and the exceptions are to be overruled. So ordered. STUART v. VALSOM. (143 N.E.) (Supreme Judicial Court of Massachusetts. 1 Suffolk. May 21, 1924.) 1. Brokers 56(3)-Where property called to attention of subsequent purchaser by broker's advertising, commission earned. Where broker's advertisement called property to attention of some one, who was thereby induced to open negotiations with owner, resulting in sale, sale was brought about through broker's instrumentality, and he was entitled to commission. 2. Brokers 57 (2)-That sale of store in-cluded lease of whole building held not to affect right to commission. That sale by owner of store listed with broker included a lease, not only of store, but entire building, was modification of original contract in merely a matter of detail, and did not affect broker's right to commission. 3. Brokers 57 (2) Commission earned, though sale for less than broker was first authorized to sell for. That broker was authorized to find customer for $7,000, and that latter paid $5,800, does not affect right of broker's commission, if sale was made in consequence of efforts of broker. 4. Brokers 88 (3)-Whether broker efficient means of sale of store held for jury. Whether broker was efficient means of bringing seller and purchaser of store together held for jury. he would pay $20 for that purpose whatever and described in detail to him both the prop- Exceptions from Superior Court, Suffolk broker; and that the purchase included a County; F. T. Hammond, Judge. Action of contract by Charles S. Stuart against James Valsom and others. Verdict for plaintiff, and the named defendant brings exceptions. Exceptions overruled. J. M. Graham, of Boston, for plaintiff. lease of the entire building at a monthly rental of $175. It is admitted by the defendant that the plaintiff was employed by him to find a customer for the store. [1] Although the plaintiff does not contend that he talked with the defendant after he sent Moharris with a card to the defendant's address, the jury were warranted in finding that his services were the efficient and effective cause of the sale; they were not obliged to believe the testimony of Moharris. It could have been found that the plaintiff, by advertising the property, called it to the attention of Moharris, and that the latter, by reason of the representations of the plaintiff, was induced to open negotiations with the owner which resulted in a sale of the property. Upon these findings the sale may be said to have been brought about through the broker's instrumentality. Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497; Hiltz v. Williams, 167 Mass. 454, 457, 45 N. E. 762. CROSBY, J. This is an action by a broker to recover a commission, for the sale of a store. In January, 1920, the defendant owned the store and the building in which it was located, and occupied a suite over the store. The plaintiff testified that during that month the defendant called at his office and asked him what his commission was for selling property and was told that it was 10 per cent.; that the defendant said he had a place for sale, and the plaintiff took his name, address and the selling price (which was $7,000), the defendant stating that the rent would be $150 a month. The plaintiff also testified that he received from the defendant If the plaintiff brought the parties tofurther particulars respecting the business; gether and was the efficient cause of the that he asked if any one else had the store sale, he is entitled to his commission even for sale and was told that it had not been though the bargain was concluded in his aboffered for sale before; that the defendant sence. To recover a commission, it was not inquired what the cost for advertising necessary for him to take part in making would be and the plaintiff replied that if the contract of sale. French v. McKay, 181 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Mass. 485, 63 N. E. 1068; Willard v. Wright, 203 Mass. 406, 89 N. E. 559. It could have been found by the jury as a rational inference that, by advertising the store, calling it to the attention of Moharris, giving him the card, the examination of the property by Moharris and his interviewers with the defendant, and a sale being made within a week after the customer called on the plaintiff, the sale was brought about as a result of the plaintiff's efforts. Fitzpatrick v. Gilson, 176 Mass. 477, 479, 57 N. E. 1000; Willard v. Wright, supra. [2] If the jury believed the testimony of Moharris that the sale of the property included a lease not only of the store but of the entire building, that circumstance could have been found to be a modification of the original contract which was merely a matter of detail and did not make the final transaction so unlike the one the plaintiff was employed to consummate as to be a new or different sale. Hall v. Grace, 179 Mass. 400, 60 N. E. 932. [3] The fact that the plaintiff was authorized to find a customer for $7,000 and that the latter paid $5,800 does not affect the liability of the defendant to pay a commission if the sale was made in consequence of the efforts of the plaintiff, "otherwise brokers always might be cheated out of their commissions." French v. McKay, supra; Carnes v. Finigan, 198 Mass. 128, 131, 84 N. E. 324. [4] The question whether the plaintiff was the efficient means of bringing the seller and purchaser together was for the jury and not for the court, Willard v. Wright, supra, accordingly the defendant's motion for a directed verdict was rightly denied. Exceptions overruled. SOUTH BOSTON TRUST CO. v. LEVIN. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1924.) 1. Bills and notes 440-Drawee paying bill not held to same admissions as when he accepts. It is not a necessary implication from G. L. c. 107, § 85, that drawee of bill is to be held to same admissions when he pays bill that are expressly provided for when he accepts it. 2. Banks and banking 147(2)-Drawee, who pays check to holder, cannot recover sum paid on discovering signature of drawer forged. Drawee of check, who pays to holder in due course, who took the check without negligence, cannot recover back sum paid on discovery that signature of drawer is forged; common law applying, and not G. L. c. 107, §§ 18, 45, 85, 89, 160, 208, and 210, nor other sections of Negotiable Instruments Act. Appeal from Municipal Court of Boston, Appellate Division. Action in contract or tort by the South Boston Trust Company against A. P. Levin, in which the Exchange Trust Company was summoned as trustee, to recover the amount of ten checks presented by defendant and cashed by plaintiff. Judgment for defendant in the appellate division of the municipal court of the city of Boston, on report for its decision, and plaintiff appeals, Affirmed. F. W. Falvey, of Boston, for appellant. G. H. McDermott, of Boston, for appellee. CROSBY, J. This is an action of contract to recover the amount of ten checks, presented by the defendant to plaintiff company and cashed by it. The declaration in its final form contained two counts: The first, relying upon the defendant's indorsement; the second, relying upon the payments having been made by reason of mistake of fact. The trial judge found for the plaintiff on the second count; the appellate division vacated the finding and entered judgment for the defend ant. The case is before this court on the One Denis Healey forged the signature of They were unindorsed by Healey, and Chiplovitch in turn delivered them unindorsed to the defendant, his lessor. The defendant indorsed each check without qualification and deposited all of them in his account in the Exchange Trust Company; they were paid by the plaintiff through the Federal Reserve Bank. It also appears that Healey told Chiplovitch that Alice H. Healey was his sister; that he told the defendant she was his mother, and as he had no bank account, he had turned over to her large sums of money and had received the checks from her. It also appeared that Chiplovitch had no bank account. The trial judge, in accordance with the defendant's requests, found that he was a holder in due course for value without notice, that he had no reasonable cause to believe the transactions were irregular, and that he acted in good faith. He further found that a proper examination by the plaintiff would have disclosed the forgery at the time the checks were presented for payment. Many requests made by the defendant, with the rulings thereon, are not before this court; some of them were granted without objection; others were waived; and still others were ren dered immaterial by subsequent findings of fact, or the general finding. The remainder of the requests adequately raise the issue of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (143 N.E.) the validity of the general finding, in the purporting to control the rights of the parlight of the special findings of fact. ties to a case like the present. [1] It cannot be successfully contended that it is a necessary implication of section 85 that the drawee of a bill is to be held to the same admissions when he pays the bill that are expressly provided for when he accepts it. In First National Bank v. Bank of Cottage Grove, 59 Or. 388, 117 Pac. 293, 296, at page 396, it was said: "The payment of a bill or check by the drawee amounts to more than an acceptance. The rule, holding that such a payment has all the efficacy of an acceptance, is founded upor the principle that the greater includes the less." The question arises: Are the rights of the parties to be determined by the provisions of the Negotiable Instruments Act, G. L. c. 107? In referring to that act this court has said: "While it does not cover the whole field of negotiable instrument law, it is decisive as to all matters comprehended within its terms." Union Trust Co. v. McGinty, 212 Mass. 205, 206, 98 N. E. 679, 680 (Ann. Cas. 1913C, 525). See G. L. c. 107, § 22; Commercial Trust Co. v. New England Macaroni Co., 247 Mass. 366, 141 N. E. 285. The sections of that chapter in which the rules controlling the present case must be found if at all, are 18, 45, 85, 89, We are unable to agree with this statement 160, 208 and 210. By section 45 it is provided, in substance, that a forged or unauthor- as there is no similarity between acceptance ized signature is wholly inoperative; and no and payment; payment discharges the inright to retain the instrument, or to give a strument, and no one else is expected to addischarge therefor, or to enforce payment vance anything on the faith of it; acceptagainst any party, can be acquired under ance contemplates further circulation, inducsuch signature unless against a defendant ed by the fact of acceptance. The rule that who is precluded from setting up the forgery the acceptor makes certain admissions which or want of authority. It is apparent that in will inure to the benefit of subsequent holdthe case at bar the plaintiff's claim of recovers, has no applicability to payment of the ery is not based upon the validity, but rather instrument where subsequent holders can upon the invalidity of the signature; this never exist. section therefore is not relevant. By section 89, certain warranties by persons negotiating an instrument without qualified indorsement are enumerated. As these warranties run only to a holder in due course, it cannot be successfully contended that a drawee, who has paid the instrument at or after maturity, is a holder in due course. On the contrary the instrument is thereby discharged. G. L. c. 107, § 142. By section 85, it is provided, in part, that: "The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits: 1. The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument." It is by reason of this section that the defendant contends the negotiable instruments act governs the present case. The act is inapplicable for the following reasons: (a) It contains no pertinent express provison; (b) it does not purport to cover all cases and contingencies; (c) there is no analogy between any express provision and the issues of the present case; (d) there is no reasonable possibility of a uniform rule under the present act which follows from the lack of an express provision in the act; (e) and finally, its framers and the legislators who enacted it were undoubtedly aware of the issues, of which the present case is an illustration, and of the conflict of authority at common law upon the question, and could have framed an express provision if they had so desired. [2] The common law in this commonwealth is therefore to govern. The rule of Price v. Neal, supra, is in force. Dedham National Bank v. Everett National Bank, 177 Mass. 392, 59 N. E. 62, 83 Am. St. Rep. Section 208 provides that a check, except 286; United States v. Chase National Bank, where otherwise specified in the act, shall be 252 U. S. 485, 40 Sup. Ct. 361, 64 L. Ed. 675, subject to the provisions relating to bills of 10 A. L. R. 1401. It is, in effect, that the exchange, which include section 85. But sec-drawee of a bill of exchange who pays it to tion 85 relates only to the effects of accept- a holder in due course cannot recover back ance; and acceptance cannot be construed to the sum so paid upon discovering that the mean payment, or to include payment. Ac-signature of the drawer is forged. This exceptance, as defined in section 18 is "an ac- ception to the usual rule respecting money ceptance completed by delivery or written paid under a mistake of fact has been exnotification." This is wholly inconsistent plained by McReynolds, J., in the last case with payment. cited, at pages 495, 496 (40 Sup. Ct. 363); yet, as was said in First National Bank v. United States National Bank, 100 Or. 264, at page 277, 197 Pac. 547, 551 (14 A. L. R. 479): By section 210, it is provided that certification of a check by a bank on which it is drawn is equivalent to an acceptance. Certification and payment are radically different transactions. An examination of the act, which makes no reference to the law as it had previously existed, discloses no provision 143 N.E.-52 "The holder must refund to a drawee who is not guilty of actual fault if the holder was negligent in not making due inquiry concerning the validity of the check before he took it, and |