defendant's servants. There was evidence | from which a jury would be warranted in finding that the deceased was a volunteer, that the agent assented to his acting as such for the corporation, and that at the time of his injury he was voluntarily undertaking to perform service for the defendant. The conduct of the plaintiff's intestate was such at the time he received the injury that we do not think it necessary to consider questions relating to the negligence of servant, or the responsibility of

lution of the copartnership, where the contract contained the provision that in case of the termination of the partnership, the partner succeeding to the business might continue by himself alone, or by a new partnership satisfactory to the defendant.

(Suffolk-Filed February 25, 1887.)

gence of a fellow servant in the course of the common employment. He had been previously warned by the agent not to walk on the track. He was more or less familiar with the premises. He knew that a train was approaching. He was walking between the tracks with his back to the approaching train. He did not look back to see whether the train was coming towards him or going at the switch upon another track. There was nothing to obstruct his view of the train coming toward him. So far as the evidence disclosed his position, he was walking with his head bent down, and he did not turn to look behind him. He could have looked, and he could have stepped from the track after the whistle had sounded, and thus he could have avoided the collision. The train was running where it had a right to run. The deceased was not induced by any agent, servant, or officer of the corporation to think that the place he was walking in was safe and secure. He was apparently in the possession of all his faculties. He could see and hear; he heard the train approaching. He did not look to see if it was coming on the same track upon which he was walking, because he thought that it was coming on the other track. In one of its features this case is similar to that of Butterfield v. Western R. Co. 10 Allen, 532. The plaintiff in that case was upon the highway crossing the railroad. The deceased in the case at bar was upon the track of the defendant, where there was no highway or road, walking at his own risk upon the track. In both cases the injured parties did not use their eyes to see if the train was coming towards them. The ruling of the court in that case-that the plaintiff's neglect to use his eyes was palpable negligence, and he states no reasonable excuse for it--applies to the conduct of the plaintiff's intestate, in the case at bar, at the time he received his injury. There was not only no evidence of due care on his part, but there was ample evidence of his carelessness and negligence. Ince v. East Boston Ferry Co. 106 Mass. 149; Hinckley v. Cape Cod R. R. Co. 120 Mass. 257. Judgment on the verdict.

Fred C. FLOYD et al.,

v.

Charles L. STORRS.

1. An agreement to renew a contract is a proper subject for a decree of specific performance.

2. The fact that the contract of renewal was with the plaintiffs as copartners will not prevent its enforcement for the benefit of one of them after the disso

ance of a contract to renew a certain agreement, and for an injunction. The case was heard in the supreme court, before Devens, J., on the bill, demurrer, answer, replication and evidence. The court, having overruled defendant's demurrer, heard the case on the merits and found the facts substantially as follows:

The bill was brought by Fred C. Floyd and Charles A. Jackson to enforce an agreement made by Floyd and Jackson with the defendant, Charles L. Storrs, by which on certain terms Storrs leased to the plaintiffs his interest in a certain newspaper, called the "South Boston Inquirer," which was thereafter to be conducted by Floyd & Jackson on certain terms until January 1, 1885, and to be printed on certain terms by Storrs. Said agreement contained the following clause: "In case of a termination of the partnership existing between the party of the second part, the partner succeeding to the business may continue by himself alone or by a new partnership satisfactory to the party of the first part; but in no event shall a new contract be made between said party of the first part and the retiring partner of the parties of the second part. The agreement shall remain in force till the 1st of January, 1885, unless said party of the second part shall conclude previous to the 1st of January, 1880, to annul the entire contract.”

It appeared that a previous bill had been brought by the plaintiff Floyd against Storrs, December 16, 1884. The agreement between Floyd and Jackson was in writing, and, without consultation with Storrs, the partnership had been dissolved during the pendency of the term for which the contract was made; and this bill sought to have the defendant restrained from interfering with the plaintiff in his publication of the "South Boston Inquirer," and to compel the defendant to renew his contract with the plaintiff Floyd for the additional term of five years, the defendant having denied his liability thus to renew and asserted his intention to resume the paper on January 1, 1885. The bill was demurred to and the demurrer sustained, apparently upon the ground, among others, that if any right existed to have such a lease renewed, it was one which could only be enforced by both the parties originally contracting with Storrs.

The decision above referred to was made December 27, 1884; and subsequently thereto the plaintiffs, Floyd and Jackson, renewed their partnership by an agreement dated December 29, 1884, for the purpose, only, of preserving their rights under the agreement for renewal for the additional term of five years. By such agreement Jackson became only a nominal partner, having no direction of the business nor

power to contract for it, the entire charge and control of the business remaining in Floyd. After making such agreement and on the same day, December 29, 1884, the plaintiffs, Floyd and Jackson, demanded of the defendant, Storrs, a renewal of the lease made to them for the additional term of five years. On Storrs refusing to comply with their request, and claiming that he should resume full control of the paper, plaintiffs brought this bill.

At the time of the dissolution of the partnership between Floyd and Jackson, it was orally agreed between them that unless Floyd could himself obtain the renewal from Storrs, the partnership should be resumed. No final adjustment or settlement of the partnership affairs was ever had between them, and there was due Jackson at the time of the dissolution about $100.

The court decreed for the plaintiff, overruling the demurrer, and giving the relief prayed for. The defendant duly excepted, and at his request the court reported the case for the consideration of the full court.

Messrs. M. F. Dickinson, Jr., and Hollis R. Bailey, for defendant:

The bill is defective.

1. Because it contains no averment whatever that the plaintiffs have performed the covenants and agreements in said contract, by them to be performed, which constitute a condition precedent to any right to a renewal.

Marble Co. v. Ripley, 10 Wall. 340 (77 U. S. bk. 19, L. ed. 955); Gannett v. Albrie, 103 Mass. 372.

titled to any relief. This case coming up on a report of the facts, it is open to the court to consider all the questions both of fact and of law, and to revise, if necessary, the conclusions arrived at by the single justice who heard the case.

Parks v. Bishop, 120 Mass. 340; Learned v. Foster, 117 Mass. 365; Wright v. Wright, 13 Allen, 209.

In addition to the cases already cited, see Clarke v. Price, Wilson, Ch. pt. 2, 157; Baldwin v. Useful Knowledge Society, 9 Sim. 393; Booth v. Pollard, 4 Younge & C. Exch. 61; Pollard v. Clayton, 1 K. & J. 462; Johnson v. Shrewsbury & B. R. Co. 3 De G. M. & G. 924; Blanchard v. Detroit, L. & L. M. R. R. Co. 31 Mich. 43; Gervais v. Edwards, 2 Dr. & War. 80; Hills v. Croll, 2 Phill. 60.

The court will not undertake to enforce one side of the contract, and leave the defendant without any guarantee or protection in his rights under the same.

Kansas R. R. Construction Co. v. Topeka, S. & W. R. R. Co. 135 Mass. 37.

Mr. C. J. Noyes, for plaintiffs:

The plaintiffs claim under the provisions of the contract: (1) that they together are entitled to the renewal of the lease for the five additional years; (2) that either partner succeeding to the partnership business, in case of a dissolution of the partnership, would be entitled to continue the lease; (3) that the dissolution of the complainants' copartnership, being provided for in the original lease, cannot deprive the complainants of their right and privilege of a renewal. They are together entitled to the renewal, for in this way only can justice be done. "It is as much a matter of course for a court of equity to decree specific performance as for a

Marble Co. v. Ripley, 10 Wall. 358, 359 (77 U. S. bk. 19, L. ed. 961); Ogden v. Fossick, 9 Jur. N. S. 288: Fry, Spec. Perf. 3d Am. ed. pp. 35, 36, 44-46, 214.

3. Because of the want of mutuality in the contract. The court will enforce a contract only when it binds both parties.

Marble Co. v. Ripley, 10 Wall. 359 (77 U. S. bk. 19, L. ed. 961); Sturgie v. Galindo, 59 Cal. 28; Southern Exp. Co. v. Western N. C. R. R. Co. 99 U. S. 191, 200 (Bk. 25, L. ed. 319).

4. Because the terms of the contract, or at least of some parts of it, are too vague and uncertain to be enforced specifically.

Pray v. Clark, 113 Mass. 283; Noyes v. Marsh, 123 Mass. 286; Stanton v. Miller, 58 N. Y. 192. 5. Because the plaintiffs have by their conduct lost any right of renewal that they may ever have had.

Kingman v. Spurr, 7 Pick. 235; Marquand v. N. Y. Mfg. Co. 17 Johns. 535; Roberts v. Kelsey, 38 Mich. 602.

The nature of the relief sought must be determined by the prayer of the bill; and defendant respectfully submits that the relief as asked for and as granted is not such as the plaintiffs, under the averments in their bill, are entitled to from this court.

The plaintiffs have a complete and adequate remedy at law in an action for damages. See Noyes v. Marsh, 123 Mass. 286.

where it is difficult otherwise to do justice.

Rogers v. Saunders, 16 Me. 92; Hopper v. Hopper, 16 N. J. Eq. 147; Chance v. Beall, 20 Ga. 143; Sullivan v. Tuck, 1 Md. Ch. 59; Treasurer v. Commercial Coal Min. Co. 23 Cal. 390; Stuyvesant v. Mayor, etc. of N. Y. 11 Paige, 414.

Only by decreeing a renewal can the complainants be put in a position to protect their rights under the contract which the defendant made with them, or recover adequate damages for its non-fulfillment; and in such case equity will decree this relief.

Cases cited above; Hoy v. Hansborough, 1 Freem. (Miss. Ch.)533; Robinson v. Perry, 21 Ga. 183.

Since the complainants cannot have the right to sue for a breach of the stipulations and conditions in the lease, without the renewal, they are left remediless should equitable relief be denied.

W. Allen, J., delivered the opinion of the court:

The agreement to renew the contract is a proper subject for a decree for specific performance, and that is all that the plaintiffs asked at the argument.

The defendant contends that the contract of renewal was with the plaintiffs as copartners, and cannot be enforced for the benefit of one of them after the dissolution of the copartner

been had the contract been silent on the subject, we think that the provision that in case of a termination of the partnership the partner succeeding to the business might continue by himself alone, or by a new partnership satisfactory

to the defendant, is an answer to the objection.

This authorized a dissolution of the copartnership which existed between the plaintiffs, and the continuance, by one of them alone, of the use of the property and the publication of the paper under the contract, after as well as before the renewal or extension of time provided for by it. The provision does not intend a termination or change of the contract, its import is only that the business mentioned in the contract, and in which the property and rights transferred to the plaintiffs were to be used,that of editing and publishing a newspaper, might be conducted by one of the plaintiffs alone, instead of by both of them as copartnerners. There is nothing in it which can affect the right to renew the contract. The new partnership entered into between the plaintiffs is not material. As they are joint parties to the contract, and must be to the renewal, a partnership in which one of them has a nominal interest, and nothing to do with the business, would seem to have very little effect upon the rights of the defendant. Certainly he cannot complain of it. It recognizes, if it does not extend, the joint liability of the co-contractors and copartners. It introduces no new party, and is not such a new partnership for continuing the business as could be prohibited by the contract. If the plaintiffs had changed the terms of the joint copartnership to those of the second, the effect would have been the same as regards the defendant as dissolving the first partnership and after a time forming the second.

Upon the facts reported, we think that the plaintiffs are entitled to a decree for the specific performance of the agreement to renew the contract.

Decree for plaintiffs.

Elizabeth R. WILLIAMSON

v.

CAMBRIDGE R. R. CO.

George WILLIAMSON v. SAME.

1. In an action for damages for injury to plaintiff while in the act of leaving defendant's car, declarations made by the conductor, immediately after the accident, to the effect that plaintiff was not in fault, and which did not accompany the principal act, or tend in any way to elucidate it, but were mere expressions of opinion, were properly excluded.

2. The contents of the application for insurance by the plaintiff were provable by secondary evidence; and a paper which purported to be a copy of the application made by the defendant, and which contained printed questions and written answers thereto, produced by the witness, was admissible in evi dence; and oral evidence of the contents

of the written answers was competent to prove such answers.

(Middlesex-Filed February 26, 1887.)

Actions of tort on the part of Elizabeth R. plaintiff's exceptions. Overruled. Williamson to recover for personal damages, and on the part of George Williamson to recover for loss of his wife's services, and expense of her care and cure. The actions were tried together in the superior court, before Mason, J., who allowed the following bill of exceptions:

At the trial, plaintiffs introduced evidence tending to show that defendant's horse-car (it being an open car), having arrived at or near its usual place for stopping in Bowdoin Square, in Boston, came to a full stop; that then the female plaintiff proceeded to alight from the car, and that while she was in the act of doing so defendant's conductor struck the bell, started the car, and thus threw her to the pavement and caused the injuries complained of. The whole evidence as to whether defendant's car was at a full stop when the female plaintiff attempted to alight therefrom was conflicting, The evidence also tended to show that the female plaintiff lost consciousness for a moment on striking the pavement; that several persons immediately came to her assistance, and among them the conductor, who said: "I am very sorry, madam; that was my fault." Evidence of such admission of defendant's conductor was objected to.

The plaintiffs contended that the conductor's remark was made at a time so near the act of starting the car and the fall of the female plaintiff,-within a second or so,-that it was part of the res gesta. The court ruled out the evidence.

The defendant offered the testimony of an agent of a foreign insurance company, who testified, in substance, that he solicited from her, at a date subsequent to the injury complained of, an application for a two-hundred-dollar policy in the company he represented; that she made such application, and that he had with him on the stand a blank application such as was used by him at the time; that he asked her the usual questions and wrote down the answers on the blank, which she afterwards read and signed; that the original blank application thus filed and signed was at the home office in New York; that he had made efforts to get the original from the home office, but that instead of the original, what purported to be a copy thereof was sent him, which he now produced; that it was an exact copy of the original signed by Mrs. Williamson. Defendant then offered the copy in evidence, plaintiff's objected, and the court admitted the evidence. The verdict was for defendant.

To these several rulings and refusals to rule the plaintiffs excepted, and pray that their exceptions may be allowed.

Mr. Sanford H. Dudley, for plaintiffs: The necessities of plaintiffs' case, fortunately. do not require the court to admit, as part of the res geste, the sayings or exclamations of a person made even several minutes, or after an appreciable lapse of time, after the occurence of the principal event, and after the conductor