fused. The defendant's guilt did not depend upon whether he thought he was unnecessarily cruel, but upon whether he was so in fact. It need not appear that he knew that he was cruel, and that he was willing to be so, but only that he intentionally and knowingly did acts which were plainly of a nature to inflict unnecessary pain, and so were unnecessarily cruel. W- v. W, 141 Mass. 495, 6 N. E. 541; Com. v. Gilbert, 165 Mass. 45, 59, 42 N. E. 336. The proper exercise of one's own judgment must, as is pointed out in Com. v. Wood, 111 Mass. 408, 411, be distinguished from wantonness or recklessness of consequences. Exceptions overruled.

(172 Mass. 211)

CLARE v. NEW YORK & N. E. R. CO. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 23, 1898.) JUDGMENTS-RES JUDICATA-DEATH BY WRONGFUL ACT-INJURIES TO EMPLOYES.

1. A judgment under St. 1887, c. 270, for personal injuries suffered by an employé, is no bar to a subsequent action, under Pub. St. c. 112, § 212, for death caused by such injuries.

2. A judgment for an administrator in an action by him under St. 1887, c. 270, for personal injuries suffered by his intestate, is a bar to a second action by him to recover for such injuries under the common law.

Exceptions from superior court, Worcester county; Daniel W. Bond, Judge.

Action by Maurice P. Clare, as administrator, against the New York & New England Railroad Company. There was a verdict for defendant, and plaintiff brings exceptions. Overruled.

W. A. Gile and Francis M. Morrison, for plaintiff. F. P. Goulding and W. C. Mellish, for defendant.

FIELD, C. J. The declaration contains two counts, the first at common law, for personal injuries suffered by the plaintiff's intestate; and the second under Pub. St. c. 112, § 212, for the death of the plaintiff's intestate. The judgment in the former action between the same parties1 was rendered on a declaration under St. 1887, c. 270, for personal injuries suffered by the plaintiff's intestate, and not for his death. It is obvious that such a judgment is not a bar to the prosecution of the present action on the second count, as the causes of action are different. The writ in the present action is dated May 17, 1897, and by the exceptions it appears that the plaintiff's intestate died on July 20, 1891, and that he received the injuries which caused his death on July 19, 1891. Pub. St. c. 112, § 212, requires the action under that section to be "commenced within one year from the injury causing the death." This defense that the action was not commenced within said year is set up in the answer of

1 167 Mass. 39, 44 N. E. 1054.

the defendant, and is plainly a good defense to the action on the second count.

St. 1887, c. 270, does not take away any cause of action at common law which an employé had against his employer for personal injuries. The employé, or, if he has died after conscious suffering, his administrator, can bring an action for personal injuries, either at common law or under the statute, and, by our practice, he is permitted to join a count or counts at common law with a count or counts under the statute. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766. The declaration in the former action between these parties contained no count at common law, but it was at the option of the plaintiff whether, in that action, he would sue at common law or under the statute, or join counts under both. When such counts are joined, it may be that the trial court, at some stage of the trial, can, in its discretion, compel the plaintiff to elect on which of the two classes of counts he will proceed, although this court has held that an election ought not to be compelled when all the counts are under the statute. Beauregard v. Construction Co., 160 Mass. 201, 35 N. E. 555. Plainly, a plaintiff should not be permitted to retain verdicts both at common law and under the statute for the same personal injuries, and have judgment for the sum of the two verdicts. A verdict under the statute cannot exceed the sum of $4,000, while at common law there is no fixed limit to the amount of the verdict; and the statutory notice must be given in order to maintain an action under the statute, while no notice is required to maintain an action at common law. It may happen that the proof is such that there is no evidence to maintain an action at common law, although there is evidence to maintain an action under the statute; or the converse may be true, or there may be evidence for the plaintiff both at common law and under the statute. Coffee v. Railroad Co., 155 Mass. 21, 28 N. E. 1128; Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550.

The fact, if it be a fact, that the plaintiff, at some time or other in the trial, may be compelled by the trial court to elect whether he will proceed at common law or under the statute, does not prevent the former adjudication from being a bar to another action between the same parties to recover compensation for the same injury. The alleged cause of action at common law could have been tried in the former action if the plaintiff had chosen to join a count at common law with a count or counts under the statute, and, if compelled by the trial court to elect, he had elected to go to the jury on the count at common law. The parties are concluded by the judgment in the former action, not only upon the issues actually tried and determined, but upon all issues which might have been tried and determined, in that action. Bassett v. Railroad Co., 150 Mass. 178, 22 N. E. 890; Foye v. Patch, 132 Mass. 105. There are

opinions of this court which tend to show that the trial court, in its discretion, may compel a plaintiff in this class of cases to elect, at the close of the evidence, whether he will go to the jury on the counts at common law or the counts under the statute. Whether a plaintiff can be compelled to elect before the close of the evidence has not been decided; neither has it been decided that in every case of this class the trial court can or ought to compel the plaintiff to elect. Brady v. Manufacturing Co., 154 Mass. 468, 28 N. E. 901; Murray v. Knight, 156 Mass. 518, 31 N. E. 646; Conroy v. Inhabitants of Clinton, 158 Mass. 318, 33 N. E. 525. It is settled that when "a person having a choice of inconsistent remedies for the same injury has once elected one of them he cannot afterwards seek the other." Whiteside v. Brawley, 152 Mass. 133, 134, 24 N. E. 1088. But, in an action like the present, the two classes of remedies for personal injuries, viz. at common law and under the statute, are not necessarily inconsistent, but the plaintiff cannot have both remedies against the same defendant for the same injury. When the facts will support an action at common law as well as under the statute, the remedies, as was said in Connihan v. Thompson, 111 Mass. 270, "are alternative remedies, but not inconsistent, and remedy in both forms might be sought in one and the same action. If the plaintiff institute separate actions, he cannot carry both to judgment and satisfaction." See Bradley v. Brigham, 149 Mass. 141, 21 N. E. 301. There was in the present case but one cause of action for personal injuries. This could not be split by the plaintiff into two separate causes of action. The judgment in that action is conclusive, as between the parties, upon the whole cause of action for personal injuries which could have been tried and determined in that action. Sullivan v. Baxter, 150 Mass. 261, 22 N. E. 895. Exceptions overruled.

1. A statement in a bond was that it was secured by first mortgage on all the corporation's property, rights, and franchises. One seeking

to sell it falsely stated that it was secured by a mortgage of realty of half a million in value. Held, that there was no contradiction preventing the buyer from recovering as for deceit, though he knew the contents of the bond.

2. One seeking to sell a corporate bond stated to the buyer what he had been told by several living in the latter's town, and known to him, and advised him to consult with them. Held, in an action for deceit based on these statements, that the question whether the buyer ought to have inquired of the persons named was properly submitted to the jury.

3. In an action for deceit based on a false statement, in the sale of a corporate bond, that

it was secured by a mortgage on realty, it was not error to permit the jury, in measuring the damages, to consider what had transpired since the sale in determining the bond's value, and what it would have been had it been as represented.

4. In an action for deceit based on a false representation in the sale of a bond, the right to sue does not depend on a return of the bond. Exceptions from superior court, Bristol county; J. B. Richardson, Judge.

Action by Alvin H. Whiting against Edward R. Price and others. There was a judgment for plaintiff, and defendants except. Exceptions overruled.

G. A. Perkins, for plaintiff, H. J. Fuller, for defendants.

HOLMES, J. This is an action for false representations, which has been before the court already upon a demurrer to the declaration. 169 Mass. 576, 48 N. E. 772. It now comes up upon exceptions taken at the trial.

The bond respecting which the representations were made stated that payment was "secured by a first mortgage on all the property, rights, and franchises of said company (present and future acquired)." The representation proved was that the bond was secured by a mortgage of real estate of the value of half a million dollars. In fact the company owned no real estate, and the bond was not secured by a mortgage of real estate. An exception was taken to a ruling allowing the plaintiff, even if he had read the bond, to recover for this further statement about the security. We see no reason for the exception, and none is offered for it. The alleged representations did not contradict the bond; they made specific and definite what the bond left vague.

The defendant Parker stated to the plaintiff, at North Attleborough, what he alleged he had been told by several persons, named, living in the town, and known to the plaintiff. The defendant advised the plaintiff to see and consult with them. The defendant asked a ruling to the effect that the plaintiff could not recover for such statements when he was referred to the sources of the defendant's alleged information. This was refused, the judge intimating that it depended on the circumstances, and seemingly leaving it to the jury whether the plaintiff ought to have inquired of the persons named. So far as appears, this was the proper course. It is true that in cases of representations as to quality, correspondence to sample, etc., of goods exhibited in the buyer's presence, the court has ruled that, if the buyer had full means of ascertaining the truth for himself, he could not set up that he was imposed upon by fraud (Rubber Co. v. Adams, 23 Pick. 256, 265; Slaughter's Adm'r v. Gerson, 13 Wall. 379; Long v. Warren, 68 N. Y. 426), and that a verdict has been directed partly on that ground (Poland v. Brownell, 131 Mass. 138). See Bayly v.

Merrel, Cro. Jac. 386. But the requirement, as it has been worked out, does not call for more than reasonable diligence (Holst v. Stewart, 161 Mass. 516, 522, 37 N. E. 755; Brown v. Leach, 107 Mass. 364, 368; Nowlan v. Cain, 3 Allen, 261, 264); and distance or other slight circumstances have been held sufficient to warrant leaving the question to the jury (Holst v. Stewart, 161 Mass. 516, 522, 523, 37 N. E. 755). See Burns v. Lane, 138 Mass. 350, 355, 356; Whiteside v. Brawley, 152 Mass. 133, 24 N. E. 1088. The matter may have been confused a little by not distinguishing between sellers' talk as to value and the like, where the rule is absolute in ordinary cases that the buyer must look out for himself, and representation of facts concerning which even sellers may be held liable for fraud, and as to which the buyer may be warranted in relying wholly on the seller's word. The notion that the buyer must look out for himself sometimes has been pressed a little too strongly into the latter class of cases.

The judge, at the defendants' request, instructed the jury that the measure of damages was the difference between the actual value of the bond at the time of the purchase and its value if it had been what it was represented to be, secured as represented. Morse v. Hutchins, 102 Mass. 439, 440; Nash

V.

Trust Co., 163 Mass. 574, 587, 40 N. E. 1039. He then instructed them, further, that they "would inquire what the value of the bond was at that time, in view of the circumstances which have transpired," and what it would have been if it had been secured as according to the plaintiff's evidence the defendant said it was, adding: "You will take into account what has happened since, in order to determine what the value of the bond was and what it is now." The defendants excepted to the further Instruction. With some hesitation, we have come to the conclusion that this exception should be overruled with the rest. The reference to the present value of the bond in the last words quoted cannot be taken to have overruled the express direction as to how the damages were to be measured. We think that what was added to that express direction merely amounted to allowing the jury to take subsequent events into account in arriving at the two values at the time of the purchase, which the jury were directed to compare. We cannot say that this was wrong. The market value of the bond at the time of the sale may have been illusory, because the public also may have been deceived. statement which we have quoted, appearing in the bond of an electric light company, certainly conveys the impression that it has a plant and property, which naturally would include land. Or, if it be answered that the public, which makes market prices generally, looks a little further than such vague words, the question remains, what would have been the value of a bond adequately

The

secured, when the public were willing to pay for one depending so far upon speculation for its value that subsequent events have shown it to be worthless? The subsequent events may be likened to the coming out of a latent disease existing in a horse at the time of a fraudulent sale, to take an example put by Cockburn, C. J., in Twycross v. Grant, 2 C. P. Div. 469, 544. It was intimated that subsequent events might be considered in Coffing v. Dodge, 167 Mass. 231, 241, 45 N. E. 928; and it was decided that they might be, in order to determine the worth of stock, in Peek v. Derry, 37 Ch. Div. 541, 591, et seq., a decision not affected by the subsequent reversal by the house of lords, on the ground that fraud was not made out. 14 App. Cas. 337. See, also, Hubbell v. Meigs, 50 N. Y. 480, 492; 1 Sedg. Meas. Dam. (8th Ed.) § 257. We may follow these cases without regard to the possible conflict between the measure of damages in this state and that adopted elsewhere. It would seem probable that in the present case the jury found the bond to have been worthless, and gave the plaintiff no more than he paid, but with that we have nothing to do.

The plaintiff did not offer to return the bond to the defendants. He was not bound to do so. The action is for false representations, and proceeds upon an affirmation of the purchase. Whiteside v. Brawley, 152 Mass. 133, 134, 24 N. E. 1088. The dictum in the case of Hedden v. Griffin, 136 Mass. 229, cited for the defendants, has no bearing. There the plaintiff was induced by the defendant's false representations to take a contract of insurance from a third person. The insurance company was solvent, and the policy was a good policy. The representations went to collateral matters. The plaintiff had a right to rescind, however, which he exercised. It was intimated in the course of the decision that, if he had chosen to keep the contract, his damages would have been only nominal, which very likely was true, as the plaintiff got what he expected. Here the ground of complaint is that the plaintiff did not get what he expected. Exceptions overruled.

(172 Mass. 227)

SMITH v. AMERICAN LINEN CO. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 23, 1898.) INSOLVENCY-PREFERENCE.

Pub. St. c. 157. § 33, declaring that a person who has accepted a preference "shall not prove the debt or claim on account of which the preference was made or given," does not prevent the proving of one claim merely because the claimant has been given a preference on another claim.

Appeal from supreme judicial court, Bristol county; James M. Barker, Judge.

Bill by William R. Smith against the American Linen Company. Bill dismissed, and plaintiff appeals. Dismissed.

HOLMES, J. This is a bill in equity, brought under Pub. St. c. 157, § 15, by the assignees in insolvency of one Barlow, to revise the refusal of the court of insolvency to expunge the proof of the defendant's claim; the ground of the bill being that the defendant has accepted a preference. Pub. St. c. 157, 33. The material facts are these: In November, 1893, Barlow was insolvent, and his creditors gave him an extension of time, that he might continue in business; it being hoped that by doing so he would be able to pay them in full. The creditors accepted notes for the amount of their claims. In November, the following year, the defendant sold Barlow waste from its mills, by what are called "cash transactions,"-that is, upon the understanding that it was to be paid for the goods in 10 days,-and it was paid for the same at the end of 10 days, in November, while Barlow still was going on. The last of these transactions was after notice that Barlow would not be able to pay his debts at the end of the extension. In December, 1894, Barlow went into insolvenсу. The payments just mentioned constitute the alleged preference. The claim which the defendant was allowed to prove was for the old, extended debt alone.

It is unnecessary to consider whether, as against later creditors, if not as against those who agreed to give time, the credit given upon what merchants call a "cash sale" stands differently from any longer or other credit, in respect of the right of the creditor to accept payment without accepting a preference. Upton v. Cotton Mills, 111 Mass. 446. For we are of opinion that the debt on account of which the preference, if any, was given, was distinct from the claim upon the note which was proved. The prohibition of section 33 is only that the person who has accepted the preference, etc., "shall not prove the debt or claim on account of which the preference was made or given." This language plainly implies that there may be another debt or claim, as, of course, there may be, and that the prohibition does not extend to such other debt or claim. We see nothing in the creditor's oath to change the construction, and the meaning of the words cannot be shaken by putting cases where the difference between one claim and two becomes nice. Any distinction, no matter how sensible and how plain, leads at last to a line which is worked out by the contact of decisions clustering around the opposite poles, and which may seem arbitrary, if we attend only to it, and not to the nature of the groups which it divides. As no preference was given on account of the note, the section does not apply. Similar words in the last bankrupt act before the present were construed as we construe the Massachusetts statute. In re Lee, 14 N. B. R. S9, 92, Fed.

Cas. No. 8,179; In re Holland, 8 N. B. R. 190, Fed. Cas. No. 6,604; In re Richter's Estate, 4 N. B. R. 221, 232, Fed. Cas. No. 11,803. Bill dismissed.

(172 Mass. 230) GALLAGHER v. HATHAWAY MFG. CO. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 23, 1898.) MASTER AND SERVANT-STATUTORY REGULATIONWEAVERS-FINES-PAYMENT OF WAGES-SET-OFF.

1. A manufacturer posted notices in the shop, specifying the wages to be paid for weaving a piece of cloth of first quality, and a less sum for one of second quality,-the difference being known as a "fine"; and plaintiff, not knowing the difference between first and second quality work, accepted employment, acquiescing in the terms of the notice. Held, that there was an agreement on the amount of the fine, within St. 1894, c. 508, § 55, requiring the amount of fines for imperfections in work to be agreed on between manufacturer and employé.

2. An agreement by a manufacturer to pay employés a stated sum for weaving a piece of cloth of the first quality, and a certain less sum for one of the second quality, does not cover cases where poor yarn makes the cloth of second quality, and hence is not repugnant to St. 1894, c. 508, § 55, limiting an agreement for fines between manufacturers and employés to fines for imperfections in their work.

3. Under St. 1894. c. 508, § 55, prohibiting the imposition of a fine on a weaver, unless the amount thereof be agreed on between him and the master, an agreement to pay for weaving a piece of cloth according to first or second quality, as fixed by the manufacturer's superintendent, is not invalid for failure to determine what constitutes first or second quality, though the servant himself be unaware of the difference, since the superintendent cannot make an arbitrary classification, but must abide by the standards in vogue in the market for which the goods are made.

4. Under said provisions a weaver may, by acquiescence in similar conduct, expressly agree that, where he is paid in full for one week's work, fines for imperfections in the work of that week may be deducted from the succeeding week's wages.

5. An agreement between a manufacturer and an employé that the weekly payment of wages shall be provisional, and that fines due for any week shall be deducted from the wages of the week following, is not repugnant to St. 1894, c. 508, § 51, requiring manufacturers to pay their employés weekly.

6. A fine incurred by a weaver under St. 1894, c. 508, § 55, authorizing fines for imperfections in work where agreed on, may be set off against his claim for wages.

Appeal from superior court, Bristol county. Action by Jane Gallagher against the Hathaway Manufacturing Company for wages. There was a finding for defendant, and plaintiff excepted and appealed. Exceptions overruled, and appeal dismissed.

When plaintiff went to work for defendant, and prior thereto, there was posted in a conspicuous place in the room in which she was employed a notice specifying the wages to be paid for weaving described styles of cloth of first quality, and the wages for weaving the same styles of second quality,-the quality to be determined by defendant's superintendent,-which notice stated with the de

tail required by law the different kinds of cloth to be woven, and the different rates of compensation to be paid therefor. It was the manufacturer's custom to pay wages as for first quality work, and, if any of it was found to be of second quality, to deduct the difference from the succeeding week's wages. Plaintiff was aware of this when she accepted employment.

J. W. Cummings, E. Higginson, and C. R. Cummings, for appellant. Crapo, Clifford & Clifford, for appellee.

HOLMES, J. In this case, since it was before the court upon an agreed statement of facts (169 Mass. 578, 48 N. E. 844), there has been a trial, and the judge has found that the plaintiff contracted to work for the defendant upon the terms of a written notice by which the plaintiff was to be paid a certain sum for weaving a described "cut" of cloth of the first quality, and half the amount for a cut of the second quality; the quality to be determined by the defendant's superintendent. The plaintiff wove a cut which was of the second quality, and which was determined to be so by the superintendent. The difference in the pay was deducted from her next week's wages, and she brings this suit to recover the amount. The judge who tried the case found for the defendant, subject to the facts stated by him, and the plaintiff excepted and appealed.

Both parties intended to produce only work of the first quality, and it is found that the difference of amount in the stipulated payments was a fine. It is found that this difference was commonly known as a "fine," and that the plaintiff understood the agreement, although she did not know what defects would constitute second quality work; and therefore we feel bound to assume, against a part of the argument for the plaintiff, that her contract was an agreement upon the amount of the fine, within St. 1894, c. 508, § 55, subject only to the question whether the amount was fixed definitely enough to satisfy the act.

It is suggested, but is not much pressed, that the agreement covers cases where the cloth is of second quality because of the poor quality of the yarn, or other cause not an imperfection in the weaver's own work, to which last fines are limited by the section cited. But we think that the agreement must be construed with the law, and taken to refer only to a difference of quality for which the plaintiff was responsible.

The more serious objection is that the standard of first and second quality might not be constant, that it is determined by the market, and that the result is the same to the weaver whether the fine is left in terms to vary, or is kept nominally the same, but is imposed by a measure which varies from time to time. It is a well-known device of dealers, who do not want to say they change the price of a liquid,

to change the size of the receptacle, while keeping the old name of "quart," "pint," or "glass." But it is not argued that the superintendent may determine the quality arbitrarily. Both sides agree that his determination must be reasonable. The plaintiff puts this part of her case on the oscillations of the market, the changes in grading which may be necessary in order to get customers. Taking the argument as thus limited, we cannot say that the agreement is not reasonably certain. The very section relied on seems to contemplate a fine as determined by "the system of grading their work * used by manufacturers." No mode of determination can give a changeless result. All things change, the dollars as well as others. If we accept the principle of the plaintiff's argument, it still is a question of degree whether the certainty is sufficient. We should suppose, and, so far as anything goes which is disclosed, we must assume, on the finding for the defendant, that the difference between the first and second quality of a given kind of cloth in a given market would be a tolerably permanent as well as certain criterion. Whether the plaintiff knew in what the difference consisted is immaterial, so long as the superintendent, in judging, was bound to refer to external standards, and could not decide by his own whim. It is not argued that the fine must be agreed on separately in each particular case. The language of the statute implies, in accordance with good sense, that the agreement should precede the imposition of the fine. If so, it naturally would be a general agreement in advance.

At the end of the week when the work in question was done, the plaintiff received full pay as for first-class work, and the sum in question was deducted from the next week's wages. This was due to the impossibility of the superintendent's personally examining all the work during the week, and was in accordance with the previous practice between the plaintiff and the defendant. The court found that the plaintiff, by implication, agreed that the first payment was provisional, and that such overpayment as this might be withheld the next week. It is urged that, if the plaintiff could make such an agreement, at least it should have been expressed. The agreement found by the court is express, none the less that it was expressed by conduct, and not by words. It was not implied in the sense that it was a legal fiction, such as often has been set up in order to bring a cause of action within the sphere of assumpsit or debt. Apart from statute, it does not matter what mode of expression is used, and there is no statute about it.

It is argued also that such an agreement, however made, is contrary to St. 1894, c. 508, § 51, requiring manufacturing corporations, and some others, "to pay weekly each employé engaged in its business the wages earned by such employé to within six days of the date of such payment." We do not perceive