viving partner or other trust officer is not authorized to take over the personal property of an estate by charging himself with the ap praised value. It is the duty of such officer to dispose of the property to the best advantage of all concerned and account for the proceeds. Freeman v. Freeman, 136 Mass. 264. Without an agreement therefor, the sur viving partner is not entitled to the benefit of any difference there may be between the appraised value and the actual value of such property. The surviving partner should charge himself in his account with the gain on personal property. It is well-settled law that a general knowledge of a danger, without an appreciation of it, is not conclusive upon the question of the assumption of the risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. 3. MASTER AND SERVANT (§§ 278, 281, 288*)- With respect to the petition of Mrs. Jordan to enter an appeal from the decree allowing the first account of the surviving partner, the petitioner objects to the account: First, because nothing was allowed for profits on the Gurnee and Doe jobs; and, second, because she claims that an excessive commission was allowed the surviving partner for services. But the petitioner is not aggrieved by the omission of these profits from that acThe plaintiff was an operative in the decount, for the reason that the judge of pro- fendant's woolen mill, where she had been an At the rear enbate ordered them included in the second ac-operative about 16 months. trance to the mill was an outside stairway of count which has already been considered in 21 steps descending to the ground, with a railthe appeal of Whittaker against Jordan, ex- ing on each side about 3 feet above the stairs, ecutrix. but without any balusters between the treads With respect to the second objection, as al- and the rail. This stairway was uncovered and entirely exposed to the elements, and was so loready stated, a commission of 5 per cent. on cated and constructed that the drippings from $26,959.38 was allowed to Mr. Whittaker. the roof fell directly upon the upper steps. On It is provided by section 37 of chapter 65, Monday, December 10, 1906, there was a coating of ice upon the upper steps caused by meltRev. St., that administrators and surviving ing snow and ice on the roof dripping upon the partners may be allowed a commission not stairway; but this ice was concealed by a few exceeding 5 per cent. on the personal assets inches of light snow that had fallen Sunday night and Monday forenoon. The plaintiff came "having regard to the nature, liability and out of the mill at noon and saw the snow on the difficulty attending their trusts." In this steps, but she testified that she saw no ice there, case, after hearing the evidence in regard to and there was no evidence that she knew that the ice was on the steps at that hour. the Gurnee and Doe jobs, the judge of pro- started to come down with her right hand on bate said: "Considering the time he must the rail and found a safe footing in the snow on have devoted to the completion of this work, the first step, but slipped on the second one and I am of opinion that he should be allowed the fell under the railing and off of the end of the steps to the ground and was injured. Not onfull commission allowed by law, to wit, 5 perly was the snow frequently shoveled off of these cent., as charged in his account." There is stairs in the winter, but also the ice forming no evidence before this court to show that upon them from time to time was frequently this was an excessive allowance, and it has chopped and scraped off by the servants of the defendant employed for that purpose in connecbeen already observed on the appeal of Whit- tion with other duties; but this was not done This open taker v. Jordan, executrix, that in determin- on the forenoon of the accident. ing what part of the profits of the Gurnee stairway had been habitually used with the knowledge of the defendant for a period of 18 and Doe jobs is attributable to the services years as a means of entering and leaving the of the surviving partner, the amount of com- mill by all operatives who might find it a more mission allowed for his services may be con- direct and convenient way than that from the front entrance, in going to and from their homes. sidered. It is, accordingly, the opinion of the court that justice does not require a revision of this decree, and the entry in Jordan v. Whittaker must therefore be: Petition dismissed. In Whittaker v. Jordan the entry is: Case remanded to the supreme court of probate for a modification of the decree and further proceedings in accordance with the opinion. She Held: (1) That the jury was warranted in finding that there was a failure of duty on the part of the defendant towards the plaintiff in neglecting to keep this stairway in a reasonably safe and suitable condition for the accommodation of its operatives, who thus had an implied invitation to use it in entering and leaving the mill. (2) That the jury was also warranted in finding that the plaintiff was not guilty of contributory negligence. (3) That, under the facts and circumstances of the case, it cannot be said as a matter of law that the plaintiff understood and appreciated the dangerous condition of the steps, and hence vol untarily assumed the risk of using them, and that this question was properly submitted to the jury as a question of fact, and that the finding of the jury in favor of the plaintiff on that question does not appear to be unreasonable. (4) That the damages awarded by the jury do not appear to be excessive. and possibly at an earlier date, the melting snow and ice on the roof had dripped upon the stairway and formed a coating of ice upon the steps varying in thickness from half an inch to two inches, but this ice was concealed on Monday noon by a few inches of [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954-972, 987-996, 1068-light snow that had fallen Sunday night and 1088; Dec. Dig. §§ 278, 281, 288.*] (Official.) On Motion from Supreme Judicial Court, Androscoggin County. Action on the case for personal injuries by Lulu C. Bowen against the Worumbo Manufacturing Company. Verdict for plaintiff, and defendant moves for a new trial. Motion overruled. Judgment on the verdict. Action on the case to recover damages for personal injuries sustained by the plaintiff, who was an operative in the defendant's woolen mill, and caused by the alleged negli gence of the defendant in failing to keep in a reasonably safe and suitable condition a certain stairway connected with its mill, and habitually used by the plaintiff and other operatives for the purpose of entering and leaving the mill. Plea, the general issue. Verdict for plaintiff for $1,475. The defendant then filed a general motion for a new trial. The case is stated in the opinion. that forenoon. The plaintiff came out of the mill at noontime and saw the snow on the steps, but states that she saw no ice there, and there is no evidence in the case that she McGillicuddy & Morey, for plaintiff. New- period of 18 years, as a means of entering ell & Skelton, for defendant. WHITEHOUSE, J. The plaintiff was an operative in the defendant's woolen mill and recovered a verdict of $1,475 for injuries received by slipping on the second step from the top of an outside stairway leading to the mill, and falling to the ground a distance of 13 feet. At the trial the defendant introduced no testimony except that of a medical expert, who testified in regard to the plaintiff's present physical condition. The evidence in behalf of the plaintiff upon the question of the defendant's liability was therefore entirely uncontradicted, and must receive its full probative force. The case comes up on motion to set aside the verdict. At the rear entrance to the mill was an outside open stairway of 21 steps descending to the ground, with a railing on each side about 3 feet above the stairs, but without any balusters between the treads and the rail. This stairway was uncovered and entirely exposed to the elements, and was so located and constructed that the drippings from the roof above fell directly upon the upper steps. and leaving the mill by all operatives who might find it a more direct and convenient way than that from the front entrance, in going to and from their homes. It is the opinion of the court that these facts afforded sufficient evidence to warrant the jury in finding that there was a failure of duty on the part of the defendant towards the plaintiff in neglecting to keep this stairway in a reasonably safe and suitable condition for the accommodation of its operatives, who thus had an implied invitation to use it in entering and leaving the mill, and also in finding that the plaintiff was not guilty of contributory negligence on her part at the time of the accident. It is insisted, however, by the defendant, that the plaintiff must have known of the danger, and that in attempting to descend the stairs in that condition she voluntarily assumed the risk of so doing. But it is settled law that a general knowledge of a danger, without an appreciation of it, is not conclusive upon the question of the assumption of the risk. Frye v. Bath Gas & Elec. Co.. 94 Me. 17, 46 Atl. 804. And in the case at bar it has been noted that the duty of the defendant, prior to the accident, had frequently been performed by cutting and removing the ice from the stairway, and that thus its condition necessarily changed from The accident happened on Monday noon, December 10, 1906. The plaintiff had then been employed in the mill about 16 months. Some time between Saturday and Monday, time to time. When therefore this fact is considered with the testimony of the plaintiff that she did not see any ice there before she fell, and the absence of any direct evi dence that she knew that there was ice concealed under the snow on the steps at that time, it cannot be said as a matter of law that she understood and appreciated the dangerous condition of the stairs, and hence voluntarily assumed the risk of attempting to use them. To this effect was the decision of the court in Fitzgerald v. Conn. River Paper Co., 155 Mass., on page 162, 29 N. E., on page 467 (31 Am. St. Rep. 537), a case in which the facts were analogous to those at bar, but more favorable to the defendant. In the opinion the court say: "We are of opinion that it cannot be said, as a matter of law, that the plaintiff in the present case, in attempting to go down the steps, voluntarily assumed a risk which she understood and appreciated which resulted in the accident. She knew that the steps were icy, and that there was some danger in passing over them; but the evidence tended to show that this slipperiness was constantly changing in different states of the weather, with the spray falling daily from the steam pipe and freezing upon them. Common experience tells us that the degree of slipperiness of ice is not always determinable from an ocular inspection of it. See, also, Osborne v. London & North Western Railway, 21 Q. B. D. 220, a case precisely in point." issues as the original pleadings, in order to retry the same questions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §8 4673-4683; Dec. Dig. § 1201.*] Appeal in Chancery, Bennington County; Willard W. Miles, Chancellor. Petition by Moses Sheldon, assignee, against Louise Clemons, for leave to file an amended bill after remand by the Supreme Court affirming a decree dismissing the bill. From an order denying the petition and dismissing the bill, petitioner appeals. Affirmed and remanded. Argued before ROWELL, C. J., and TY- ber and J. K. Batchelder, for appellee. 72 WATSON, J. When this case was here on appeal from the decree rendered upon the pleadings, master's report, orator's exceptions to the report, and motion to recommit the same, the decree dismissing the bill, with costs, was affirmed, and cause remanded, with mandate that the bill be dismissed. Vt. 185, 47 Atl. 796. The case was thus remanded at the January term, 1900, of this court, and thereafter remained on the docket of the court of chancery without anything further being done until May 15, 1908, when the orator presented his petition for leave to file an amended bill. A hearing being had on the petition as far as it relates to the filing of the proposed amended bill, it was con It is, accordingly, the opinion of the court that the question whether the plaintiff understood and appreciated the danger was prop-sidered and adjudged, as matter of law, that erly submitted to the jury as a question of fact, and that their finding in her favor upon that question does not appear to be unreasonable. the court of chancery has no jurisdiction to grant the petition in this respect, and without prejudice to the orator as to any other matters contained in the petition it was ordered that leave to file the proposed amended bill be denied, and that final decree be entered dismissing the bill, with costs, pursuant to the mandate from this court on file. The orator contends that under the provisions of sections 1317 and 1318 of the Public Statutes the court of chancery had the power to grant the petition, and that to deny it as matter of law was error. The original bill has not been furnished us, yet it appears from the master's report and from the opinion of this court (72 Vt. 185, 47 Atl. 796) that APPEAL AND ERROR (§ 1201*)-NEW TRIAL the main question in the case heard and de AFTER REMAND INGS. AMENDMENT OF PLEAD termined by the master was, in the language P. S. § 1317, authorizing a chancery court, of the court, "whether there was a collusive after mandate in a cause determined by the Supreme Court has been filed, to permit either agreement or understanding between the parparty on petition to file amended pleadings. ties to the suit at law to the effect that the and authorizing the court to appoint a master plaintiff therein should obtain a larger judgto hear additional testimony, and section 1318, ment than he was entitled to, and thereby deproviding that upon the filing of such pleadings and the filing of the master's report, if fraud the defendant's other creditors." The one was appointed, the same proceedings shall master found affirmatively that whatever be had as in the original action, do not au- was done or omitted on that trial was not the thorize a court of chancery, after mandate from result of a collusive understanding or agreethe Supreme Court in a case heard on the merits has been filed, to permit the losing party to file ment between the parties, and this finding new or amended pleadings presenting the same was held to be conclusive. The case made by the proposed amended bill is substantially the same. The main question involved, and the one upon which the right to the relief sought depends, is that of the collusive understanding and agreement regarding the judgment to be obtained in the suit at law, heard and determined by the master and by the mandate sent down. It is said in the defendant's brief that the proposed amended bill introduces no issue not already decided. This is not denied in the orator's brief. Indeed, nothing is said therein about it, nor is any attempt made to show any substantive reason why leave to file the amended bill should be granted. Standing thus, a case is presented where after mandate has gone down from this court on the merits, directing, in affirmance of the decree below, that the bill be dismissed, the losing party asks leave to file an amended bill in effect to rehear the same issues of fact previously heard and determined. Whatever may be the legitimate construction of the statute upon which the orator relies in a case proper for its application, certain it is that this statute was not intended to give, and does not give, the court of chancery, after mandate from this court, in a cause heard and determined on the merits, has been sent down and filed, power to permit the losing party to file new or amended pleadings presenting the same issues as were presented by the original pleadings, for the purpose of try ing the same questions over again. In such circumstances that court has no greater powers in this respect than it had before the enactment of this statute, and there was no error in denying the petition as a matter of law and entering a decree according to the mandate. Canerdy v. Baker, 55 Vt. 578; Sortwell v. Montpelier & Wells River R. R. Co., 56 Vt. 180; Sherman v. Windsor Mfg. Co., 57 Vt. 57. Decree affirmed, and cause remanded. Appeal in Chancery, Windham County; Wm. H. Taylor, Chancellor. Bill by Ephraim M. Fuller and others against Earle E. Knapp. From a decree dismissing the bill, complainants appeal. Affirmed. The bill alleges that, while the orators owned certain land, the orator Ephraim Fuller, by deed duly recorded, conveyed to one Ashford "all the saw timber standing and growing" thereon; that subsequently the orators sold the land to defendant, who had read the deed to Ashford, "reserving all the lumber, timber, and wood standing" thereon, with the privilege of placing a portable mill on the land for sawing said lumber and timber, which lumber and timber was to be removed within a specified time; that the parties engaged a scrivener to make a deed of the land from the orators to defendant, and the orators duly executed and delivered the same, but that "because of some accident in drawing said deed" no mention of said reservation or privilege was made therein; and praying, among other things, that said deed from the orators to defendant be reformed by inserting therein said reservation. The answer admitted all the foregoing allegations, except that of mistake in drawing the deed, and alleges that it was distinctly understood that defendant acquired no title to the "saw lumber and timber" on the land, and that he claims none, "but that he did understand and was informed by said Fuller that the wood, being the tops of the saw lumber and timber trees on said premises, were to be the property of said defendant," and denies that the reservation was omitted from the deed because of any accident or mistake. The chancellor found that “at the time of the conveyance to the defendant he was fully aware of the interest of the said Ashford in the land thereby conveyed to him, having seen and examined the record of said Ashford's deed, and at the time of the execution of said deed the subject-matter of the reservation of said Ashford's rights in said land was talked over by the orators and the defendant. The scrivener who wrote the deed informed them that said Ashford's rights in the land should be reserved to prevent the defendant's claiming a conveyance of the land without reservation; but the orators told him that that was not necessary, as it was all understood between them." Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. A. P. Carpenter and Gibson & Waterman, for appellants. Haskins & Schwenk, for appellee. WATSON, J. In the findings of fact, the chancellor says he is unable to find with the degree of certainty required by law that the ing like notices in two newspapers. These publications were alleged to have been made maliciously and for no purpose except to injure the plaintiff. Upon this statement a nonsuit was ordered, subject to exception. Kelley, Harding & Hatch, for plaintiff. Page & Bartlett, for defendant. orators reserved the tree tops in their trade | required by the statute and also by publishwith the defendant, or that they intended to have any reservation concerning the wood which they were to cut therefrom expressed in the deed to the defendant, and he is more inclined to think that they were content to let the understanding as to their right to get wood from the tree tops rest in parol. No admissions are made in defendant's answer requiring a different conclusion of fact. The case presented does not entitle the or ators to the relief sought. A court of equity will reform a written contract, and especially a deed, on the ground of mistake, only when the evidence showing the mistake is strong and of a conclusive character, such as shall establish the fact beyond reasonable doubt. Griswold v. Smith, 10 Vt. 452; Cleaveland v. Burton, 11 Vt. 138; Goodell v. Field, 15 Vt. 448; Preston v. Whitcomb, 17 Vt. 183; Shattuck v. Gay, 45 Vt. 87; Barry v. Har ris, 49 Vt. 392. Decree affirmed, and cause remanded. (75 N. H. 215) HUTCHINS v. PAGE. (Supreme Court of New Hampshire. ham. April 6, 1909.) 1. LIBEL AND SLANDER (8 54*) - JUSTIFICATION-TRUTH. The truth is not always a defense to libel, as in cases where the occasion renders the truth immaterial, and in such cases the communication is not privileged, unless made in good faith, for a justifiable purpose, and with a reasonable belief as to its truth. PEASLEE, J. However the law may be elsewhere, it is well settled in this state that the truth is not always a defense to an action on the case to recover damages for the publication of a libel. State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217. The rule there suggested, that if the occasion be lawful the motive for the publication is immaterial, if the truth of the charge be established, was materially modified when a case arose in which the question was directly in issue. "It seems to us that in order to settle whether the occasion was lawful we must generally inquire into the motives of the publisher. There may be some cases where the occasion renders, not only the motive, but the truth, of the communication immaterial. Thus it Rocking may be the better rule that no relevant statement made by a witness or by counsel in the course of a trial is actionable, even though false and malicious. See Revis v. Smith, 18 Com. Bench, 126. But in the great majority of instances, and certainly in the present case, the lawfulness of the occasion depends upon the good faith and real purpose of the publisher. Most of what are called 'privileged communications' are 'conditionally,' not 'absolutely,' privileged. The question is one of good faith,' or motive, and can be settled only by a jury. A court cannot rule that a communication is privileged without assuming the conditions on which it is held to be privileged, namely, that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth." Palmer v. Concord, 48 N. H. 211, 217, 97 Am. Dec. 605; Carpenter v. Bailey, 53 N. H. 590, 594; Id., 56 N. H. 283, 290. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 152; Dec. Dig. § 54.*] 2. LIBEL AND SLANDER (8_54*)-JUSTIFICATION--TRUTH-"HIS OWN OFFICIAL MISCON DUCT.' If a tax collector, in addition to posting advertisements of default in paying taxes in two or more public places, as required by Pub. St. 1901, c. 60, § 14, maliciously published similar notices in the papers, for the purpose of injuring the taxpayer, and not believing that such additional notices were necessary to a successful tax sale, he would be liable in libel for damages caused thereby, though the taxes were in fact delinquent, and is not relieved from liability by section 16, providing that he shall not be liable for any cause except his own official misconduct; his malicious act being "his own official misconduct," within the statute. [Ed. Note. For other cases, see Libel and Slander, Dec. Dig. § 54.*] Under this rule the plaintiff states a case. While it was the defendant's duty to publish the fact that the plaintiff had failed to pay the taxes assessed against him, "by posting advertisements thereof in two or more public places in the town" (Pub. St. 1901, c. 60, § Transferred from Superior Court, Rocking-14), it was not his duty to otherwise publish ham County; Pike, Judge. Action by Charles H. Hutchins against Walter H. Page. Order of nonsuit, subject to exceptions, and case transferred from the superior court. Exceptions sustained. the fact unless he thought such publication was essential to the success of the tax sale. If he did not so believe, but, on the contrary, used this occasion to maliciously proclaim in a public manner that the plaintiff had not ethical reason why an action should not lie for the damage caused by the malicious and unwarranted act. Case for libel. The plaintiff's counsel stat-paid his taxes, there is neither legal nor ed in opening his case that he expected to prove that the defendant, being tax collector for the city of Portsmouth and having an overdue tax against the plaintiff, advertised The claim that the defendant is exonerated the property for sale by posting the notices by the provision that he shall not be liable *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |