of the defendant. There was some evidence that the defendant acted as owner in making the sale. The information conveyed in its letter to the plaintiff was not as matter of law notice that it was pledgee and not owner. It might have been "financing" the packing company by taking title to the goods stored, and goods "held" by it may have been held in the capacity of owner as well as of pledgee. The defendant's first, second, fifth and seventh requests for instructions were refused rightly. The sixth and eighth were waived properly at the argument. While the substance of the defendant's ninth and tenth requests well might have been, amplified in the charge, the refusal to give them was no error. The jury must have understood that the plaintiff, in order to prevail, was bound to prove that the goods were not merchantable at the time they were delivered to the buyer. This again was concise and correct, and cannot be said to have been inadequate. 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076. I said not to have fairly protected the rights It is distinct also from a sale expressly or avowedly to the knowledge of both parties for a particular purpose, as to which another rule prevails. Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639. All these rules are different statements of the principle that a buyer has a right to get that which he had bought. They deal not with a warranty of quality but with a condition of the contract. They touch the identity of the subject | with that tendered in performance of it. This principle also is quite separate from that frequently applied in purchases from manufacturers and sometimes from dealers, where the buyer relies upon the skill or knowledge of the seller, and there arises some sort of implied warranty of quality. If the goods in the case at bar were not salable for some price as sardines when they were delivered to the plaintiff, there was a breach of contract by the seller. There is nothing contrary to the propositions here laid down in Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656. That was a case where the goods had some value, that is, they were merchantable as damaged goods, and this is shown by the finding of the jury. If there is anything inconsistent with this view in Farren v. Dameron, 99 Md. 323, 58 Atl. 367, 105 Am. St. Rep. 297, and in Howard Iron Works v. Buf. falo Elevating Co., 113 App. Div. 562, 99 N. Y. Supp. 163, affirmed without opinion in 188 N. Y. 619, 81 N. E. 1166, we are not disposed to follow them. See cases collected in Williston on Sales, § 233, note. McKinnon Manuf. Co. v. Alpena Fish Co., 102 Mich. | 221, 60 N. W. 472; Reynolds v. General Electric Co., 141 Fed. 551, 73 C. C. A. 23, and some other cases relied on by the defendant are distinguishable in their facts. This case does not raise any question as to obligation of inspection upon receipt, or waiver by acceptance or recognition of goods in satisfaction of the contract. West End Manuf. Co. v. Warren Co., 198 Mass. 320, 325, 84 N. E. 488, and it is not necessary to discuss them. [3] The character of the title of the vendor in this respect is immaterial. If he acts as vendor he is subject to the ordinary incidents of that relation. There is nothing inconsistent with this in Baker v. Arnot, 67 N. Y. 448. The sale in that case was made by the pledgor, to the knowledge of all parties to the transaction. The pledgee simply released his pledge, and transferred possession "in pursuance of a sale made by" his pledgor. He was not the vendor. In the case at bar the charge well might have been more full with reference to the question whether the packing company or the defendant was the seller, and whether the latter was not in fact a pledgee. But the charge was concise and accurate. It was not susceptible of misconstruction, and cannot be [4] The exception to the charge must be overruled. The chief ground argued in support of the exception to the charge is that the portion to the effect that the jury "were warranted in finding that the defendant and the plaintiff were the contracting parties," was too favorable to the plaintiff. It has been shown already that it could not have been ruled that the defendant was pledgee rather than vendor. The defendant held the warehouse receipt in its own name. This was at least the equivalent of possession of the goods. Other exercise of dominion over the property by the defendant, such as issuing shipping directions and the rendition of a bill in its own name to the plaintiff, were enough to support a finding that the defendant acted as owner in making transfer of the title to the plaintiff in such way as to warrant the plaintiff in treating the defendant as owner. The defendant fails to show any harmful inaccuracy in the charge as a whole. Exceptions overruled. (214 Mass. 281) CHISHOLM v. NEWTON ST. RY. CO. (two cases). (Supreme Judicial Court of Massachusetts. Middlesex. April 1, 1913.) STREET RAILROADS (§ 85*)—Duties of STREET CARS AND TRAVELERS. Those operating a street car and a traveler crossing the tracks have the reciprocal duty to use due care to prevent a collision. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 193, 195; Dec. Dig. § 85.*] Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge. Actions by Alexander D. Chisholm, administrator, against the Newton Street Railway Company, one to recover under the statute *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes HAMMOND, J. The collision between the car and the deceased took place in the daylight at or near one of the usual stopping places of the cars. The deceased saw the car and attempted to cross the street in front of it. He and the car were travelers on the public way, with the reciprocal rights and duties of such travelers. Each was bound to use due care to prevent a collision. The case is close. It is unnecessary to state the evidence in detail. It is conflicting, but upon a careful reading of it we are of opinion that the questions whether, in deciding to cross in front of the car, or in the manner of carrying out that intention, or in any other respect the plaintiff was careless, and generally whether either party was careful or careless, were for the jury. We are also of opinion that there was no evidence of gross negligence. To hold otherwise would be going further than the decision in the cases of Beale v. Old Colony St. Ry., 196 Mass. 119, 81 N. E. 867, and Berry v. Newton & Boston St. Ry., 209 Mass. 100, 95 N. E. 95, which must be regarded as the extreme limit to which the doctrine of gross negligence in this class of cases can go. evidence that he might have seen the child at Exceptions from Superior Court, Middlesex County; Marcus Morton, Judge. Two actions, by Mary Quinn and by William J. Quinn, against the Boston Elevated Verdicts for plaintiffs, Railway Company. and defendant brings exceptions. Judgment for plaintiff in each case. The first action was to recover for injuries to a child of 21⁄2 years, hit by defendant's street car, and the second was by the father, to recover for loss of the child's serv The evi ices and for medical attendance. Coakley & Sherman and R. H. Sherman, all of Boston, for plaintiffs. Francis J. Carney, of Boston, for defendant. SHELDON, J. [1] There was evidence of due care on the part of the mother of the infant plaintiff. She had taken precautions to keep the child in a safe place, in the yard of the house. It was for the jury to say whether these precautions were sufficient. With the other duties which were incumbent upon her and with what could be found to be the practical impossibility of keeping the child under her eyes, it cannot be said as matter of law that she failed to exercise any other care which reasonably could be requir It follows that in the first action, which was brought for the death, the exceptions are overruled; and in the second, which was brought for conscious suffering, the excep-ed of her. The case does not resemble Cottions are sustained. So ordered. (214 Mass. 306) ter v. Lynn & Boston R. R., 180 Mass. 145, QUINN V. BOSTON ELEVATED RY. CO. v. Old Colony St. Ry., 184 Mass. 399, 68 N. (two cases). (Supreme Judicial Court of Massachusetts. Middlesex. April 1, 1913.) 1. NEGLIGENCE (§ 136*)-CHILDREN-NEGLIGENCE OF MOTHER-QUESTION FOR JURY. In an action for injuries to a child, struck by a street car, where it appeared that the mother of the child left her in the yard, around which was a fence with a gate, first tying the gate with a cord, and that she then engaged in her household duties without watching the child, it was a question for the jury whether she exercised due care. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 277-353; Dec. Dig. § 136.*] 2. STREET RAILROADS (§ 114*) ACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE. In an action for injuries to a child, struck by a street car, where there was evidence that the motorman tried to stop the car as soon as he realized the danger, but there was also E. 679, Sullivan v. Boston Elev. Ry., 192 Mass. 37, 78 N. E. 382, Ingraham v. Boston & Northern St. Ry., 207 Mass. 451, 93 N. E. 692, and Dowd v. Tighe, 209 Mass. 464, 95 N. E. 853. It is conceded that this child was too young to exercise care for herself, and that question need not be considered. Grella v. Lewis Wharf Co., 211 Mass. 54, 57, 97 N. E. 745, Ann. Cas. 1913A, 1136. [2] It is a more difficult question whether there was any evidence of negligence in the operation of the defendant's car. As to this, it does not seem to us to be material under the circumstances whether the motorman did or did not ring his gong. If he did not do so, yet the child was not misled thereby. She saw the car. And there was evidence that as soon as the motorman realized the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes MOVAL-FORFEITURE OF RIGHT. The execution of a new lease without reserving the tenant's right to remove fixtures forfeits such right, unless a different intention ap pears therefrom; parol evidence to show intention being admissible if the new lease is ambiguous thereon. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 64, 65; Dec. Dig. § 33;* Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. 450.*] 7. FIXTURES (§ 12*)-BETWEEN LIFE TENANT AND REMAINDERMAN. impending danger he tried to stop the car | 6. FIXTURES (§ 33*)-EVIDENCE (§ 450*)-REas soon as possible; and except from his own testimony we find no evidence of any lack of vigilance on his part. But there was evidence that he either saw or might have seen the child in a position of danger at a distance of 30 feet, and he testified not only that he could have stopped his car within a distance of 12 or 15 feet, but that he actually did so. In the opinion of the majority of the court the jury were justified in finding, and we must now treat it as settled by their verdict, that even if he did not see her in time to stop his car and avoid the injury which resulted, yet he ought in the exercise of proper care to have done so. In that event, it could be found that the accident was due to his negligence, even though as soon as he did see her and perceived the danger of running into her, he made every effort in his power to look out for her safety. Judgment must be entered in each case for the plaintiff in accordance with the terms of the report. So ordered. (54 Ind. App. 514) MERRELL v. GARVER et al.1 (No. 7,785.) (Appellate Court of Indiana. March 11, 1913.) 1. FIXTURES (§ 33*) — REMOVAL-WAIVER OF RIGHT. Where a lease gives a tenant the right to remove fixtures, and he holds over thereunder by the landlord's express or implied consent, he does not lose the right to remove such fixtures. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 64, 65; Dec. Dig. § 33.*] 2. LANDLORD AND TENANT (§ 108*)-POLICY OF LAW. Forfeitures are not favored in law. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 333-335; Dec. Dig. 8 108.*] 3. LANDLORD AND TENANT (§ 108*)-FORFEITURE ON NONPAYMENT OF RENT. Nonpayment of rent does not ipso facto work a forfeiture under a lease, providing for forfeiture upon default in payment, unless the person having the right to enforce the forfeiture takes affirmative action to do so. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 333-335; Dec. Dig. 8 108.*] 4. LIFE ESTATES (§ 25*)-FIXTURES (§ 33*)— LEASE-FORFEITURE-NONPAYMENT OF RENT. A life tenant to whom rent was due was the only person entitled to insist upon a forfeiture of a lease, which stipulated for forfeiture upon nonpayment of rent, and the lessee's right thereunder to remove buildings because of such nonpayment; the remaindermen not having such right. [Ed. Note.-For other cases, see Life Estates, Cent. Dig. § 47; Dec. Dig. § 25;* Fixtures, Cent. Dig. §§ 64, 65; Dec. Dig. § 33.*] 5. LANDLORD AND TENANT (§ 112*)-PAYMENT OF RENT-FORFEITURE-WAIVER. The landlord's acceptance of past-due rent. and continuance of the relation of landlord and tenant, waives his right of forfeiture for nonpayment of rent. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 343-349; Dec. Dig. § 112.*] Where a new lease executed by a life tenant at the same time transferred to the life tenant buildings erected on the land by his tenant, and reserved as personalty under the old lease, the intention of the parties to still preserve the buildings as personalty, and not to merge title into the realty, was sufficiently shown. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. § 17; Dec. Dig. § 12.*] 8. FIXTURES (§ 27*)-EFFECT OF AGREEMENT. agreement with the owner that they shall belong Where a tenant erects buildings under an to him, and is expressly given the right to remove them, they remain personalty. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 5, 22, 25, 44, 45, 54; Dec. Dig. § 27.*] 9. FIXTURES (§ 12*)-PROPERTY OF LIFE TEN ANT. The fact that buildings on land were transisfaction of a debt due to the life tenant for ferred to the life tenant by his tenant in satwould not make such buildings inure to the retaxes his tenant had failed to pay as agreed maindermen as fixtures, instead of to the life tenant; the life tenant not being responsible for permitting the taxes to become delinquent. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. 17; Dec. Dig. § 12.*] 10. ESTATES (§ 10*) PERSONAL PROPERTY. The doctrine of merger primarily has no application to personal property, but only to realty. MERGER [Ed. Note.-For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.*] 11. FIXTURES (§§ 32, 33*)—REMOVAL-MERGER INTO REALTY. A tenant who has reserved the right to rethem within his term or within a reasonable move fixtures placed upon land may remove time thereafter, unless he expressly forfeits them if not removed by a certain time, but failure to remove within such time forfeits his title thereto, and merges their title into the realty. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 63, 64; Dec. Dig. §§ 32, 33.*] 12. FIXTURES (§ 27*)-TENANT-AGREEMENT. reserving title in him as personalty, will conBuildings erected by a tenant under a lease, tinue to be treated as such, in the absence of a showing of something operating to merge title into the realty. Cent. Dig. 88 5, 22, 25, 44, 45, 54; Dec. Dig. [Ed. Note.-For other cases, see Fixtures, § 27.*] 13. ESTATES (§ 10*)—MERGER. The doctrine of merger is equitable, and the rules of equity govern in its application. [Ed. Note. For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.*] 14. ESTATES (§ 10*) — MERGER DOCTRINE. While generally a lesser estate is merged into a greater, where a greater and lesser estate - EQUITABLE For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied. Transfer to Supreme Court denied. held in the same right meet in the same person, I well was the owner in fee simple of certain without any intermediate estate, the question real estate described in the complaint, and of such merger depends in equity on the inten- continued to be such owner until the time tion of the party in whom the estates vest. [Ed. Note. For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.*] 15. ESTATES (§ 10*) MERGER DOCTRINE. Equity can only be invoked to change the effect of a writing, where justice will be promoted, and, equity will only interpose to prevent a merger of estates in order to do substantial justice. EQUITABLE [Ed. Note.-For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.*] 16. FIXTURES (§ 12*)-INTEREST OF REMAINDERMEN-PURCHASE BY LIFE TENANT. A life tenant may acquire from his lessee a building which is personalty under the lease and hold it as such as against the remaindermen, where that was the evident intent of the parties, and his interest will not be adversely affected thereby, and equity will be done. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. § 17; Dec. Dig. § 12.*] 17. LIFE ESTAtes (§ 17*)—Fixtures (§ 12*)IMPROVEMENTS BY LIFE TENANT. As a rule, the permanent improvements made by a life tenant cannot be charged to the remaindermen without his consent, and upon termination of the life estate pass as a part of the realty. [Ed. Note.-For other cases, see Life Estates, Cent. Dig. §§ 37, 38, 42; Dec. Dig. § 17 Fixtures, Cent. Dig. § 17; Dec. Dig. § 12.*] 18. TRIAL (8 404*)-FINDINGS. A finding of facts must be considered and construed as a whole. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 957-962; Dec. Dig. § 404.*] Appeal from Circuit Court, Fayette County; N. S. Givan, Special Judge. Petition for partition by Sarah E. Garver and others against William Merrell, II, and others, in which defendant Merrell filed a cross-complaint. From a judgment against such defendant on his cross-complaint and awarding the several interests in the land, such defendant appeals. Reversed, with directions to render judgment for appellant, and for further proceedings. McKee, Frost & Elliott and Conner, Conner & Chrisman, all of Connersville, for appellant. Florea & Broaddus, of Connersville, for appellees. FELT, P. J. This is a suit for partition of real estate. The complaint was answered by general denial. Appellant filed a crosscomplaint against his codefendants and the plaintiffs, in which he alleges that he is the owner of a certain brick livery barn and shed attached thereto; that the same is not a part of the real estate upon which the building stands. This cross-complaint was answered by general denial. Upon request, the court made a special finding of facts, and stated its conclusions of law thereon. The substance of the finding of facts, as far as material to the questions to be decided by this court, is: That on the 11th day of February, 1869, one Abram B. Con of his death in 1885; that on the 11th day of February, 1869, said Conwell executed to one Moses Long a written lease for a cer tain portion of said real estate in the city of Connersville, Ind., for a term of years from the 31st day of August, 1869, until the 31st day of December, 1890, for an annual rental of $300; that said tenant was to pay the taxes and assessments against said lot during the time of said lease, with the further condition that, upon failure of said Long to pay any of the sums so due from him, his rights under the lease were forfeited; that said Long and his heirs and assigns were to have the right to improve said real estate by erecting thereon buildings and using the same for a livery stable; that said Long and his heirs and assigns were to deliver up the quiet and peaceable possession of said real estate on the 31st day of December, 1890, to the said Abram B. Conwell, his heirs, executors, or assigns; that "all buildings and improvements made or now on said premises by said Moses Long, his heirs or assigns shall belong to the said Moses Long, his heirs or assigns with right of removal by him or them if a contract for the same cannot be made mutually by the said Conwell and Long, their heirs and assigns"; that thereafter, by assignment duly made during the life of said lease, Thomas J. Shields became the owner of all the property rights and privileges secured to said Long by the terms thereof; that said Shields took possession of said premises under said lease and continued to hold the same as hereinafter stated; that by the terms of the last will and testament of the said Abram B. Conwell his daughter, Anna Merrell, became the owner for and during her natural life of the real estate upon which such livery barn was situate, and by the further terms of said will the children of said Anna Merrell, appellant and appellees, became the owners as tenants in common of said real estate, subject to the life estate of said Anna Merrell therein; that said Moses Long, in pursuance of the terms of said lease, made valuable improvements upon said real estate, consisting of a two-story brick livery barn and frame shed connected therewith, which buildings were on said real estate at the time said lease was assigned to said Thomas J. Shields; that said improvements are still upon said real estate; that at the expiration of said lease on December 31, 1890, by mutual agreement between said Shields and said Anna Merrell, the owner of the life estate in said real estate, said Shields continued in possession of said property "under the same terms and conditions provided for in said lease of date February 11, 1869; that he paid rents for said premises to said Anna Merrell, the life tenant; that the remainder For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes that the livery barn erected on the lot in question in pursuance of the terms of the original lease was and is personal property; that the life tenant purchased the buildings as such and transferred the same to appellant, who owned the same when this suit was begun, and is entitled thereto, separate and apart from the real estate upon which the barn is situated. Appellee contends (1) that by holding over under the original lease from December, 1900, to June, 1901, the lessee forfeited his right to the buildings, and they became a part of the real estate; (2) that by taking a new lease in which the buildings were not reserved to the tenant the right to claim the same was forfeited, and they have become and are a part of the real estate; (3) that when Anna Merrell, the life tenant, purchased the buildings, the leasehold estate was merged in her life estate, and at her death the owners of the fee took the buildings as a part of the real estate upon which they are lo men, appellees herein, did not consent to the holding over of said Shields under said lease; that, after said Anna Merrell was the owner of said life estate, said Shields became in arrears in the payment of taxes on said property as provided in said lease, and on the 7th day of June, 1901, transferred and assigned to the said Anna Merrell all his title and interest in said improvements upon said real estate in consideration of his release from payment of taxes accrued against him and from liability thereafter to pay taxes on said real estate, but it was expressly provided that he should pay taxes on the said improvements assessed against him; that by the terms of said instrument he was given the right to occupy said premises, and use the same as under the former lease for a period of two years from the 1st day of June, 1901, for which he agreed to pay a rental of $40 per month; that thereafter, on the 23d day of September, 1901, said Anna Merrell transferred and assigned to appellant all her right, title, and interest in said improve-cated. ments situate upon said leased premises; [1] Where the tenant, by the terms of his that said Anna Merrell continued as the owner of the life estate in said property until her death in November, 1905, "and the said William Merrell continued to be the owner of whatever interest the said Anna Merrell owned and had in said improvements up to the time of the death of the said Anna Merrell, and still owns whatever interest the said Anna Merrell transferred and assigned to him and had the power and authority to transfer and assign to him on the 23d day of September, 1901"; that the real estate described in the complaint is not susceptible of the division between the owners thereof without great damage to the respective owners and should be sold; that the real estate on which said livery barn is situate without said buildings, is of the value of $6,000 and including said improvements is of the value of $8,000; that the improve ments placed on the real estate enhanced the value thereof $2,000. The court found the undivided interests of appellant and appellees in said real estate to be in accordance with their several interests in the fee thereof, and stated its conclusions of law accordingly. The court also stated as a conclusion of law that appellant has no separate or additional interest in, or right to, the livery barn aforesaid, other than his interest in the fee as above stated. The appellant duly excepted to the several conclusions of law, and moved for a new trial on the ground that the findings of the court are not sustained by sufficient evidence; also, that the findings are contrary to law. The motion for a new trial was overruled. lease, has the right to remove buildings or fixtures, and holds over under the old lease by consent of the landlord, express or implied, the right to remove fixtures or buildings is not lost to the tenant. Jones on Landlord and Tenant, § 718; Hedderich v. Smith, 103 Ind. 203-205, 2 N. E. 315, 53 Am. Rep. 509; Adams v. Tully, 164 Ind. 292-295, 73 N. E. 595; 19 Cyc. p. 1067; Young v. Consolidated Imp. Co., 23 Utah, 586, 65 Pac. 720; Wright v. Macdonnell, 88 Tex. 140, 30 S. W. 907. The facts found show no ground for a forfeiture of the buildings, unless it results from the failure of the tenant to pay taxes which were due the life tenant as a part of the rent. No failure of any kind on the part of the tenant is shown prior to the death of Abram B. Conwell. The life tenant was entitled to the rents, and the remaindermen were not affected by any failure to pay, or by any adjustment of rents. [2, 3] Forfeitures are not favored in law, and nonpayment of rent will not ipso facto work a forfeiture of a lease which provides for a forfeiture thereof upon default of payment. There must be some affirmative action on the part of the one having the right to enforce the forfeiture. In this case no demand is shown and no steps were taken by the life tenant, or any one else to work a forfeiture. [4] As the only default was a failure to pay a part of the rent when due, the life tenant to whom the rent was owing was the only person who could at that time insist upon a forfeiture for such nonpayment of rent, and she did not do so, but on the contrary, accepted payment thereof after it was due. The appellant has separately assigned error on each conclusion of law on the finding of facts; also, that the court erred in over- [5] Where a right to forfeit a lease is givruling his motion for a new trial. Several en for the nonpayment of rent, the acceptinteresting and important questions are rais- ance of payment of the past-due rent and ed by the errors assigned. Appellant asserts the continuance of the relation of landlord |