The distinction between a warranty and a condition precedent in connection with a contract is plain. [3] The error of the misdirection touching the burden of proof was not cured by the further instruction that if it appeared to the minds of the jury "that the man was not in sound health at the time when the policy was taken out, then by the express terms of the policy there could be no recovery." This sentence contains no reference to the burden of proof. Requests 12 and 13, to the effect that if the insured had some disease of the lungs on the date of either policy, there could be no recovery, were given in substance. [4] A physician who had examined the insured during December, 1908, when the policy of earlier date was issued, testified to sending some sputum, given him by the insured, to the state board of health. The defendant, ed. through one of its employés, then offered in evidence a copy of a card from the office of that board, together with evidence that he had seen the original which had been destroyThe card with its inferences appeared to show that the sputum sent by the examining physician had been tested by the "bacteriologist" and found to be tuberculous. It appeared that examinations and records of this sort were made and kept by the state board as a part of its voluntary activities without legislative requirement. It was not a public record in the sense of R. L. c. 35, § 5. It did not appear that the bacteriologist who made the test might not have been called as a witness. Cashin v. N. Y., N. H. & H. R. R., 185 Mass. 543, 546, 70 N. E. 930. It did not relate to matters as to which records were required to be kept. Butchers' Slaughtering & Melting Ass'n v. Boston, 214 Mass. 254, 259, 101 N. E. 426. This copy was excluded rightly. Allen v. Kidd, 197 Mass. 256, 259, 84 N. E. 122; P. Garvan, Inc., v. N. Y. C. & H. R. R. R., 210 Mass. 275, 279, 96 N. E. 717; Com. v. Borasky, 214 Mass. 313, 317, 101 N. E. 377; Jewett v. Boston Elevated Ry., 219 Mass. 528, 532, 107 N. E. 433; Nichols V. Commercial Travelers' Ass'n, 221 Mass. 540, 547, 109 N. E. 449. [5] The plaintiff was entitled to interest on the verdict. The jury returned a verdict for a sum "with interest." While they were in their seats and before the verdict was recorded, it was amended by direction of the judge by the addition of interest, which then was affirmed by the jury and recorded. In this there was no error: Minot v. Boston, 201 Mass. 10, 86 N. E. 783, 25 L. R. A. (N. S.) 311; Whitney v. Com., 190 Mass. 531, 540, 77 N. E. 516; Randall v. Peerless Motor Car Co., 212 Mass. 352, 387, 388, 99 N. E. 221. Exceptions sustained. (224 Mass. 218) HURTER et al. v. LARRABEE et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1916.) 1. PARTNERSHIP 332-TRIAL-ISSUES. In an action for an accounting by retiring partners, it being the duty of the master to whom the case was referred to ascertain the actual facts as to the assets and liabilities of the firm at its dissolution, so far as could be determined with reasonable certainty from the firm books had no bearing on the issue. books, negligence of one partner in keeping the [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 790; Dec. Dig. 332.] 2. PARTNERSHIP 88-LIABILITIES OF PARTNER-GUARANTY OF CAPACITY. partner guarantees his own capacity, and, in so far as losses result to a firm from errors of MUTUAL LIABILITIES OF PARTNERS-BOOKS OF ACCOUNT. duty of keeping the firm books, reasonable preAlthough, where one partner assumes the sumptions are made against him when he disputes their accuracy, when there is good faith throughout he is not estopped to show the truth about the books, although he may have been inefficient. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 799-801; Dec. Dig. 338.] 4. PARTNERSHIP 338 COUNTING EVIDENCE. ACTIONS FOR AC partners, the basis of settlement established by In an action for an accounting by retiring the partnership articles being the partnership books, the action of the master in correcting errors in books manifestly untrustworthy by ascertaining the true condition of the firm's affairs from all credible evidence was proper. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 799-801; Dec. Dig. 338.] 5. PARTNERSHIP 338 ACTIONS FOR ACCOUNTING-EVIDENCE-PRESUMPTIONS. partners, there being a discrepancy between the on hand as correct was not error. 6. PARTNERSHIP 333-ACTIONS FOR AC COUNTING-CHARGES-TAXES. partners, taxes previously assessed upon the In an action for an accounting by retiring firm property were properly charged to the firm. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 792-796; Dec. Dig. 333.] 7. PARTNERSHIP 346 ACTIONS FOR ACCOUNTING-CHARGES. It being necessary to ascertain the real state of the partnership business, the expense of an accountant was rightly charged to the firm. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 820; Dec. Dig. 346.] Appeal from Supreme Judicial Court; Suffolk County. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by John C. Hurter and another, tending to show that he ought to have known against Charles M. Larrabee and others. that the books were badly kept and exhibitFrom the interlocutory decree overruling ed defects and errors, there were other facts plaintiffs' exceptions to the master's report which made that question irrelevant. The and from the final decree entered, plaintiffs relation of Larrabee and Chandler, the other appeal. Aflirmed. defendants, is the same as that of the plaintiff's to the books. They ought not to be made to pay to the plaintiffs for Brady's negligence. Moreover, the main duty of the master was to ascertain the actual facts as to the assets and liabilities of the firm at its Robert G. Dodge, Frank K. Linscott, and Harold S. Davis, all of Boston, for appelGeo. L. Mayberry and Wm. M. Morgan, both of Boston, for appellees. lants. RUGG, C. J. This is a bill for accounting by two retiring members of a partnership against three remaining general partners, who hereafter will be referred to as the defendants. The firm carried on a wholesale dry goods business of considerable magnitude. The articles of copartnership provided, amongst other matters, that upon the termination of the partnership two or more of the general partners having a majority interest therein might continue the business under the firm name, and in that event should "pay to the retiring general partners for their interest in said business the amount standing to the credit of each of the retiring general partners on the books of the firm January 1, 1913, after the stock taking of that date and after the interest and profit has been placed to each general partner's credit." The three defendants elected to continue the business, and the two plaintiffs, to retire. Disagreement as to how much should be paid to the plaintiffs caused this suit. The case was referred to a master under a rule which required him "to state the accounts in accordance with the terms of the partnership." Exceptions to the master's report present the questions to be decided. There has been no bad faith on the part of any of the partners. [1-3] The plaintiff's first exception is to the refusal of the master to make a finding upon the negligence of the defendant Brady in supervising the accounting department of the firm. The duties of the several partners were not defined by the partnership articles, but by common consent Brady, in addition to having charge of a special department, exercised a general oversight over the conduct of the business and over the office and bookkeeping and accounting department. But the bookkeeping was in charge of one Ferguson until just before the dissolution of the partnership, when he left. Ferguson was generally trusted by all the parties. But the bookkeeping and accounting was done on a rather complicated system and was found to be full of mistakes and errors, resulting apparently from lack of care and diligence. All the partners, including Brady, believed the business to have been prosperous and were deceived as to its real condition until it was revealed by the report of an expert accountant. The master refused to make a finding as to the negligence of Brady because, although there was some evidence dissolution, so far as these could be deterbooks of the firm. Negligence of one partner mined with reasonable certainty from the had no bearing on this issue. The basis of the accounting fixed by the agreement is the share of each partner, after interest and profit of each is found, as shown by the books. There is no general principle of partnership which renders one partner liable to his copartners for his honest mistakes. So far as losses result to a firm from errors of judgment of one partner not amounting to fraud, bad faith, or reckless disregard of his obligations, they must be borne by the partnership. Each partner owes to the firm the duty of faithful service according to the best of his ability. But, in the absence of special agreement, no partner guarantees his own capacity. Where one assumes the duty of keeping the books, reasonable presumptions are made against him when he disputes their accuracy. But when there is good faith throughout, he is not estopped to show the truth about the books even though he may have been ineflicient. Knipe v. Livingston, 209 Pa. 49, 57 Atl. 1130; Knapp v. Edwards, 57 Wis. 191, 15 N. W. 140; Leon v. Gardner, 104 Iowa, 176, 73 N. W. 591; Paterson v. Burton, 3 N. J. Law, 717. Cases like Hutchins v. Page, 204 Mass. 284, 90 N. E. 565, 134 Am. St. Rep. 656, Costa v. Costa, 222 Mass. 280, 110 N. E. 309, and Wiggins v. Brand, 202 Mass. 141, 88 N. E. 840, are not applicable for the reason that either something more than or different from mere negligence was involved, or the partners were not on an equal footing. [4] The basis of settlement established by the partnership articles in the present case was what was shown by the books of the partnership. But this means a set of books which were a reasonably correct representation of the firm's affairs. It did not mean books so full of palpable mistakes and grave errors as to be manifestly untrustworthy and incapable of showing justly the affairs of the firm. Under the circumstances disclosed, the only course open was to correct the errors so far as possible, and from all credible evidence ascertain the true condition of the firm. This was the course pursued by the master. [5] There was no error in the finding as to the cash on hand on December 31, 1912. There was a considerable discrepancy be tween the cash shown on the books and the - actual amount. As to this matter, the mas- | 2. EQUITY 408- "There is no evidence in the case that the defendants have received any benefit from the loss in cash, if there was a loss, and I find, as asked by the defendant, 'that the weight of the evidence is in favor of adopting the actual cash on hand as ascertained by Mr. Albee's [the expert accountant's] count rather than the showing of a blundering cash account, and that it is fair to assume that a full and minute investigation of all pertinent entries in the books would discover errors sufficient to account for the shortage.' Mr. Albee was of the opinion, and I think he was right, that an investigation sufficient to make the audit complete would not be warranted by the amount involved." The reasonableness of this finding is its complete support. If the books could not be relied on in this respect, the only thing to do was to take the best evidence available as to the true state of the account. In general the same principles were followed in determining what the books really showed, after making corrections for errors, as to merchandise and accounts receivable. For the same reasons no error is shown in this respect. [6] The taxes assessed as of April 1, 1912, rightly belonged to the firm to pay. The taxes were assessed on its property and naturally were an expense wholly to be borne by it. There is nothing in the partnership articles expressly or impliedly indicating any division of it between the firm and the continuing partners. The case at bar is quite different from J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 105 N. E. 370, L. R. A. 1915A, 334. [7] The portion of expense of the accountant charged to the firm affords no ground for exception. This work was necessary in order to find an approximation to the real state of the partnership. The results of his work were equally available to all the partners. It was done for the firm as a whole and rightly was charged to it. Exceptions numbered 2, 7, 10 and 13 have been waived, and what has been said shows that no error was committed in overruling the others. Decree affirmed with costs. (224 Mass. 173) SMITH v. LLOYD et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1916.) 1. EQUITY 408-DUTY OF MASTER-REPORT OF EVIDENCE. A master is not bound to report all the evidence, unless required to do so by the order of reference, it being irregular, in case the order does not require to report the evidence, although, where a master is required to find and report the facts, his conclusions should be accompanied with such narration of evidence as may be essential to enable the court to comprehend them. [Ed. Note.-For other cases, see Equity, Cent. Dig. $$ 901, 902; Dec. Dig. 408.] REFERENCE TO MASTER evidence, so far as is necessary to fairly preIt is the duty of a master to report the sent any question of law raised before him. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 901, 902; Dec. Dig. 408.] 3. EQUITY 410(6)-REPORT OF MASTEREVIDENCE. Where the draft report has been submitted, and the parties know the decision of the master, they cannot, by exceptions to findings, render necessary a report of special portions of the evidence. [Ed. Note.-For other cases, see Equity, Cent. Dig. § 912; Dec. Dig. 410(6).] 4. EQUITY 408-DUTY OF MASTER-SUBMIS- of the evidence. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 901, 902; Dec. Dig. 408.] 5. EQUITY 412 - REPORT OF MASTER COMMITMENT. -- - RE A motion to recommit a master's report is addressed to the discretion of the court, and ordinarily such a motion will not be granted, in the absence of a special reason. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 924-926; Dec. Dig. 412.] 6. EQUITY 412-REPORT OF MASTER-RE COMMITMENT. The denial of a motion to recommit a master's report was not an abuse of discretion, where the master's findings were all direct and positive, and the findings requested by the moving party were irrelevant or scandalous. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 924-926; Dec. Dig. 412.] Report from Supreme Judicial Court, Suffolk County. Bill by Daniel L. Smith against John Bross Lloyd and others. The cause was submitted to a master, and plaintiff excepted to his report, and to an order denying motion to recommit. On report. Exceptions overruled, and final decree entered dismissing the bill. Walter B. Grant and Daniel B. Ruggles, both of Boston, for plaintiff. Edward F. McClennen and Jacob J. Kaplan, both of Boston, for defendants. RUGG, C. J. This is a suit in equity whereby the plaintiff seeks to establish a debt against the defendant and to reach and apply in payment thereof property of the defendant. An interlocutory decree was entered sending the case to a master "to find the facts and report the same to the court." An elaborate and comprehensive report has been made covering the issues raised by the pleadings in conformity to this decree. It contains no report of the evidence. On the coning in of the master's report the plaintiff moved that the cause be recommitted to the master for further findings and the report of parts of the evidence. [1-4] The terms of reference of a suit in equity to a master rests in each instance in the sound judicial discretion of the court. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes quested by the plaintiff were plainly irrelevant to the issues. Those objected to by him are not scandalous or impertinent. None of the exceptions to the master's report ought to be sustained. Merely to blacken the reputation of others did not support the plaintiff's claim. The master's report shows a careful analysis of the character of the plaintiff's services to the defendant and the circumstances under which they were rendered. Whether the plaintiff was the efficient cause of bringing about the result of the removal of the guardianship, the termination of the trust, and the escape of the defendant from the debasing conditions under which he lived, all were pure questions of fact as to which the report discloses a painstaking consideration of pertinent facts and a clear conclusion. The relations of the defendant with Miss Sullivan and the circumstances of their intimacy, and the plaintiff's position respecting that affair, bore upon the issue of the plaintiff's services and the causes which dominated the conduct of the defendant and its effect upon the final result. It is difficult to conceive of any matter more purely a question of fact than the fair value of the services of an attorney. master is not bound to report all the evi- [ speculative or conjectural. The findings re dence unless required to do so by the order of reference. Without such requirement it is ir regular to report the evidence at the request of either party. The duty of a master, whose rule directs him to find and report the facts in issue, is performed by a statement of his conclusions only, together with such narration of the facts as may be essential in order to enable the court to comprehend the steps by which his conclusions have been reached, and to decide whether they are correct. These principles long have been established. Nichols v. Ela, 124 Mass. 333, 336; Parker v. Nickerson, 137 Mass. 487, 490, 491. It is the duty of a master to report evidence so far as necessary to present intelligently and fairly any question of law raised before him at the hearing. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 66 N. E. 427. But this does not mean that all the evidence can be required to be reported under a reference like the present, even by a request to rule that either party is not entitled to prevail on all the evidence. Young v. Winkley, 191 Mass. 575, 78 N. E. 377; Marra v. Bigelow, 180 Mass. 48, 61 N. E. 275; New York Bank Note Co. v. Kidder Press Manufacturing Co., 192 Mass. 391, 405, 78 N. E. 463. Nor does it mean that after the draft report has been submitted and parties know the decision of the master, then requests or exceptions relative to the point whether certain findings are supported by the evidence, may as matter of right render necessary the report of substantial parts of the evidence. So far as questions of law are raised during the progress of the hearing, then enough evidence must be included in the report to enable an intelligent review to be made of the correctness of the ruling, so far as it was necessary to make a ruling, as, for example, in the admission or exclusion of evidence. But the form of the present rule was designed and had the effect to leave to the final determination of the master the decision of all matters of fact. Warfield v. Adams, 215 Mass. 506, 511, 102 N. BOSTON FISH MARKET CORP. v. CITY E. 706. The master's report conformed to these principles. A master is not required to state every subsidiary circumstance which brings his mind to its ultimate determination as to the facts. The appearance of witnesses while testifying is always an important element in weighing the value of testimony. It is not necessary to go through the exceptions one by one. The principles which have been stated make it plain that they must all be overruled. Final decree is to be entered denying the motion to recommit the master's report, overruling all the exceptions to and confirming the master's report, and dismissing the bill with costs. So ordered. OF BOSTON. (224 Mass. 31) SAME v. COMMONWEALTH. (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.) SETTS-LEASES-"LESSEE.' 37(4)-MASSACHU [5, 6] The motion to recommit the report was addressed to the discretion of the court. Ordinarily such motion is not granted in the absence of some special reason. Henderson 1. NAVIGABLE WATERS v. Foster, 182 Mass. 447, 65 N. E. 810; Duffy v. Hogan, 203 Mass. 397, 402, 89 N. E. 630; Crosier v. Kellogg, 210 Mass. 181, 96 N. E. 76; Cook v. Scheffreen, 215 Mass. 444, 448, 102 N. E. 715; Stevens v. Rockport Granite Co., 216 Mass. 486, 494, 104 N. E. 371, Ann. Cas. 1915B, 1054. The only question open is whether there was an abuse of discretion in denying the motion. There is nothing to indicate any exceptional reason for recommitting the report. It is not necessary to review the reasons alleged in the motion. The findings of the master were all direct and positive upon the essential facts and in no sense the harbor and land commission to lease certain Under Rev. Laws, c. 96, § 3, authorizing flat lands, one who contracted with them, by an indenture in the form of a lease and aptly phrased, was a "lessee," although he was given extensive rights as to the erection of substantial buildings, piers, and breakwaters. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 211, 218-222; Dec. Dig. 37(4). For other definitions, see Words and Phrases, First and Second Series, Lease.] 2. NAVIGABLE WATERS 37(4)—MASSACHU SETTS-LEASES "LICENSEE." Under such circumstances, the contracting party is not a "licensee," within the terms of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rev. Laws, c. 96, § 17, authorizing the commission to license certain uses of such lands. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 211, 218-222; Dec. Dig. 37(4). For other definitions, see Words and Phrases, First and Second Series, Licensee.] 3. TAXATION PURPOSES." 178-LEASES "BUSINESS One who leases public lands for the purpose of erecting wharves, piers, etc., for conducting the business of dealing in fish and sea foods, which erections it leases to others, is a lessee for "business purposes," under St. 1909, c. 490, pt. 1, § 12, providing for a tax on state lands leased for business purposes. [Ed. Note.-For other cases. see Taxation, Cent. Dig. § 304; Dec. Dig. 178. For other definitions, see Words and Phrases, Business Purposes.] St. 1909, c. 490, pt. 1, § 12, providing a tax upon certain state flats when leased for business purposes, is not in conflict with Const. pt. 2, c. 1, § 1, art. 4, requiring that all property taxes must be proportional and reasonable, since the state may tax such of its property as it chooses; but the fact that some is not taxed gives lessees of the remainder no right to an exemption. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 68, 71; Dec. Dig. 40(1).] 6. CONSTITUTIONAL LAW 229(2)-STATUTES -VALIDITY "EQUAL PROTECTION OF THE LAW. St. 1909, c. 490, pt. 1, § 12, providing that certain state flats, when used for business purposes, shall be taxed, does not deny equal protection of the laws, within Const. U. S. Amend. 14, since equal protection does not require that all tenants of the sovereign must hold by the same kind of tenure, and be subject by contract to the same liability to taxation; the variety of terms of leases precluding absolute uniformity. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 685; Dec. Dig. 229(2). For other definitions, see Words and Phrases, First and Second Series, Equal Protection of the Law.] 7. LANDLORD AND TENANT 148(2)-LEASES -CONSTRUCTION-"MUNICIPAL TAXES." Where the lessee agreed to pay all annual taxes, the lease stipulating that by annual taxes is meant the annually recurring municipal tax, and not any betterment taxes for street construction, or other special taxes or assessments, the taxes required to be paid are all annual taxes; the word "municipal" limiting them only to those collected by the city tax collector, and including state, county, and city or town taxes. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 521; Dec. Dig. 148(2). For other definitions, see Words and Phrases, Municipal.] Report from Superior Court, Suffolk County; John D. McLaughlin, Judge. The cases Actions by the Boston Fish Market against the City of Boston and against the Commonwealth of Massachusetts. were tried separately, and in the action against the Commonwealth the plaintiff appealed from an order sustaining a demurrer to the petition, and the case was reported to the Supreme Judicial Court. The action against the City was reported on an agreed statement of facts. In the action against the Commonwealth, order sustaining demurrer affirmed. In the action against the City, judgment entered for defendant. Jasper N. Johnson and Michael F. Shaw, both of Boston, for plaintiff. Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for the Commonwealth. Jos. P. Lyons, of Boston, for defendant city of Boston. RUGG, C. J. The petitioner seeks by these two different forms of procedure to recover taxes assessed as of April 1, 1914, and paid by it in respect of land and buildings erected by it upon a portion of the South Boston flats. The legal title to the land is in the commonwealth. The petitioner holds posses sion under an indenture duly executed be tween it and the commonwealth, acting by the board of harbor and land commissioners for a term of fifteen years from October 1. 1913. The taxes, which are the subject o.! these proceedings, were assessed under the assumed authority of St. 1909, c. 490, part 1, § 12,1 first enacted in St. 1904, c. 385. [1, 2] 1. The plaintiff is lessee of the landi for which it has been taxed within the mean ing of the statute. It is described as "lessee" throughout the indenture under which it holds possession. That indenture is in the form of a lease. It is aptly phrased to create the relation of lessor and lessee. The harbor and land commission had the power to execute a lease. R. L. c. 96, § 3. Although the plaintiff is given extensive rights as to the erection of substantial buildings, piers and a breakwater, which doubtless would be expensive and valuable improvements to the property, these circumstances have no tendency to prevent its becoming lessee in ac cordance with its express agreement to that end. The case is distinguishable from Cor 1 "Section 12. The lands of the commonwealth, situate in that part of the city of Boston called Flats, shall, if leased for business purposes, be South Boston and known as the Commonwealth taxed by the city of Boston to the lessees thereof, respectively, in the same manner as the lands and buildings thereon would be taxed to such lessees if they were the owners of the fee, except that the payment of the tax shall not be enforced by any lien upon or sale of the lands; but a sale of the leasehold interest therein and of the buildings thereon may be made by the collector of the city of Boston in the manner provided by law in case of non-payment of taxes for selling real estate, for the purpose of enforcing the payment of the taxes by such lessees to the city of Boston sessed under the provisions hereof." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as |