PER CURIAM: This is a demurrer to all the counts of the narr., the cause of demurrer relied upon being that the acceptance of the option as alleged in the narr. was not in accordance with the terms of the option as alleged therein.

The allegations of the several counts in so far as the question before us is concerned, are that on the 6th day of January, 1920, the plaintiff offered to buy certain merchandise from the defendant, describing it and giving quantities and prices in counts 3, 4, 5, 7 and 8 and prices only in counts 2 and 6. The counts then allege:

ance must be unqualified and meet the exact terms of the option and that nothing short of such acceptance is sufficient.

The plaintiff contends, first, that the option did not require a 10 per cent. deposit at the time of purchase; and second, that if it did require such deposit, the exact amount of the purchase was unknown to the plaintiff at the time of the purchase, and, therefore, an allegation of the payment of the 10 per cent. was not required, and the allegations of the narr. in that respect are sufficient.

[1, 2] The general rule is that the acceptance of an option must be unconditional. And while it may be that the allegation “if plaintiff did purchase any merchandise, the said $100 was to be retained by the defendant and was to apply on the 10 per cent. deposit required upon purchase of the goods" would require an allegation of acceptance showing a payment or tender of 10 per cent. of the purchase price under some circum

"The said proposition further provided that the plaintiff should pay to the defendants check for $100, for which defendants were to give plaintiff an option on any part, or any lot, or all of the above merchandise located on all or any of the plants aforesaid, said option to be subject to the acceptance by the plaintiff upon inspection of said merchandise. Said proposal further provided that if the plaintiff should not purchase the said merchandise after inspec-stances, we are not satisfied to hold, on detion, defendants were to return to plaintiff the murrer, where from the allegations of the $100 given to bind the proposition, the said narr., the amount required thus to be paid $100 to be returned without any charges of any is not ascertainable, that plaintiff must alnature whatsoever, if no merchandise was pur-lege such payment or tender. chased. If plaintiff did purchase any merchandise, the said $100 was to be retained by the defendants and was to apply on the 10 per cent. deposit required upon purchase of the goods. The terms of purchase were to be f. o. b. plants, balance sight draft, bill of lading. The said proposition further provided that in case of any loss, or damage or shortage, defendants were to indemnify plaintiff to the amount of loss. Said option was granted for a 10-day period, and if not exercised in the time specified, through causes beyond plaintiff's control, either the length of the option was to be renewed or the check returned in like manner as above set forth. That the said proposition was on the said 6th day of January accepted by the defendants who then and there accepted the said check for $100 above referred to. That on the 15th day of January, 1920, the (Supreme Judicial Court of Maine. April 26, plaintiff exercised the option given to it as aforesaid and advised the defendants that it

In those counts in which the amount necessary to cover the 10 per cent. is ascertainable from the allegations, we think the payment or tender of such amount should be alleged. This would apply to the third, fourth, fifth, seventh and eighth counts, but would not apply to the second and sixth counts. We, therefore, sustain the demurrer to the and eighth third, fourth, fifth, seventh counts, and overrule it as to the second and sixth counts.

MADDOCKS v. GUSHEE.

1921.)

accepted the following merchandise at the pric-1. Judgment 678 (2) Creates

es noted.
tified the defendants that plaintiff had inspected
the merchandise mentioned and formally ad-
vised the defendants of plaintiff's acceptance
of the same and wish to avail itself of said
option. Said acceptance further provided that
as defendants were then unable to present to
plaintiff invoice covering merchandise from each
plant at time of acceptance, plaintiff would
send the 10 per cent. deposit immediately upon
receipt of such invoices, and requested that
such invoices might be furnished as soon as
possible."

Said acceptance further no

The question thus presented is, whether or not the plaintiff's offer to pay to defendant the 10 per cent. deposit immediately upon receipt of such invoices is a sufficient acceptance of the option to bind the defendant.

The defendant contends that the accept

estoppel

against parties and those in "privity," which denotes mutual or successive rights.

Parties and those in privity with them are estopped by judgment, and the term "privity" denotes mutual or successive relationship to the same rights of property.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, PrivityPrivy.]

2. Judgment 713(2)—Conclusive as to issues which were or might have been litigated.

As a general rule a judgment by court of competent jurisdiction is conclusive between same parties and their privies on all properly alleged matters within the issue or which might have been litigated therein regardless of whether issue was actually joined by defendant or tendered him and left unanswered.

(118 A.)

3. Judgment 651, 652—Judgment by default | plaintiff in the case. Then the present acor on confession is conclusive.

A judgment by default or upon confession is in its nature just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict.

4. Judgment 682 (2)-Seller notified in replevin between successive buyers to make good his warranty is party to judgment.

One who sold the same horse successively to two different parties, and who was notified by the first buyer to come in and make good his warranty of title in replevin brought by that buyer against the second buyer, who had possession of the horse, became thereby in privity to the record, and is bound by the judgment to the extent to which his rights were tried and adjudged.

5. Judgment 524-Judgment in replevin that property "belongs" to plaintiff therein determines ownership.

A judgment in replevin by the first buyer of a horse against the second entered on default which recited that the horse belongs to the plaintiff in that action, decides the ownership of the horse, since the primary meaning of the words "to belong," and also their common and ordinary meaning, is to be the property of, and not merely the right to possession thereof, so that such judgment is conclusive as to the ownership of the horse in a subsequent action by the second buyer against the seller, who had been notified to appear in the replevin action and make good his warranty of title (citing Words and Phrases, Belong-Belonging). 6. Judgment 951 (2)-Docket entries admissible to show judgment where record is not extended.

Where the record of a prior action is not extended, the docket entries showing what was adjudged therein would be proper evidence of that fact.

tion was begun. When this action came on for trial, evidence was offered tending to show that in the replevin case he who had twice sold one horse was notified by the first vendee to come into court and make good a warranty of title, express or implied, against asserted subsisting previous ownership. He disregarded the notice. In the instant case, however, he asked the justice presiding to instruct the jury that, as the judgment in replevin was by default, title to the horse was not thereby determined as between him

self and him who is plaintiff now and was defendant before. The justice declined to so rule. Nor would the judge permit this defendant to show that, in advance of the later

sale, he had received the horse back in amicable adjustment of the unpaid note. The justice was clearly right.

[1-3] Parties and privies are estopped by a judgment. Corey v. Russell, 106 Me. 485, 76 Atl. 930; Stacy v. Thrasher, 6 How. 45, 12 L. Ed. 337. "It is well settled doctrine in this state," said Chief Justice Peters, "that if any issue be judicially established between parties to a litigation, the benefit of the finding will inure in favor of the winning party whenever such issue again arises between the same persons or their privies in any other suit. This is upon the principle of estoppel which declares that an issue or fact once judicially proved is forever proved." Parks v. Libby. 90 Me. 56, 37 Atl. 357. The term "privity" denotes mutual or successive relationship to the same rights of property. Greenleaf on Evidence, § 523. As a general rule a judgment by a court of competent jurisdiction directly upon the point is, as a plea, a bar, or as evidence, conclusive and binding between the same parties and their

Exceptions from Supreme Judicial Court, privies upon all properly alleged matters Knox County, at Law.

Action by Eden C. Maddocks against T. E. Gushee. Verdict for the plaintiff, and defendant excepts. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

A. S. Littlefield, of Rockland, for plaintiff. R. I. Thompson and M. A. Johnson, both of Rockland, for defendant.

DUNN, J. The defendant in this action sold and delivered a horse to a man named Hopkins, taking a Holmes note in payment. Defendant afterward made sale and delivery of the same horse to the plaintiff in this action. Thereupon the original purchaser replevied the horse from the second vendee. Eventually, on default of the defendant in the replevin suit, the court adjudicated, to quote from its record, that the property which has been recovered "belonged to" the

embraced within the issue in action, and which were or might have been litigated therein. Corey v. Russell, supra. It is immaterial whether issue actually was joined by the defendant or tendered him and left

unanswered. The rule applies as well to a judgment by default, when the facts stated warrant the relief sought, as to one rendered after contest. Gates v. Preston, 41 N. Y. 113; Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649. A judgment by default or upon confession is, in its nature, just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict. Gifford v. Thorn, 9 N. J. Eq. 702.

[4] Whether the present defendant was seasonably and reasonably vouched in the replevin suit was a question of fact, in regard to the finding, and the effect, as a matter of law of the finding, of which the jury was guided by instructions to which exceptions were not taken. If the defendant were duly called in, as he seems to have been, to defend

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on a warrant of title, then of right he could have summoned witnesses to testify in his favor; he could have cross-examined witnesses introduced by the opposite side; indeed, the defense would have been his to control. Actual notice in apt time to the party liable over, with request and opportunity to assume the defense, makes him, in the absence of fraud or collusion, a privy to the record, and binds him by it to the extent to which his rights were tried and adjudged. Ryerson v. Chapman, 66 Me. 557; Boston v. Worthington, 10 Gray (Mass.) 496, 71 Am. Dec. 678; Blasdale v. Babcock, 1 Johns. (N. Y.) 517. Quoting our own Judge Kent:

"When a person is responsible over to another, either by operation of law or by express contract, and he is notified of the pendency of the suit, and requested to take upon himself the defense, he is not afterwards to be regarded as a stranger to the judgment that may be recovered; because he has a right to appear, and make as full defense, as if he were a party to the record. * A judgment, after such notice, will be conclusive against him, whether he appeared or not." Veazie v. Penobscot Railroad Co., 49 Me. 119.

See, too, Davis v. Smith, 79 Me. 351, 10 Atl. 55. Blasdale v. Babcock, supra, was an action on the case on an implied warranty in the sale of a horse, which a defendant had sold to a plaintiff, but which belonged to another person, who had recovered it from the plaintiff. The record of the judgment in favor of the owner of the horse against the plaintiff was admitted in evidence on the question of title.

would be proper evidence of that fact. The primary meaning of the words "to belong" and also their common and ordinary meaning, is to be the property of. State v. Fox, 80 Iowa, 312, 45 N. W. 874, 20 Am. St. Rep. 425; Gammon v. Seminary, 153 Ill. 41, 38 N. E. 890; Com. v. Hamilton, 15 Gray (Mass.) 480; Words and Phrases, vol. 1, p. 744. Virtually the court said to the then plaintiff: Keep the property that you replevied, because you own it. Such was its judgment concerning an issuable fact in the case. Its record thereof is not subject to explanation or contradiction by evidence from outside. As between the parties and their privies a judgment must be conclusive upon all questions settled by it, as long as it stands; motives of public policy so dictate. Defendant's exceptions are meritless. Exceptions overruled.

FENNESSEY'S CASE.

(Supreme Judicial Court of Maine. April 26, 1921.)

1. Master and servant 348-Compensation Act liberally construed.

The Workmen's Compensation Act is to be liberally construed to further its object of compensating injured employees for loss of capacity to earn.

2. Statutes 183-Not literally construed if producing irrational interpretation and absurd result.

A statute will not be literally construed if such a construction would produce an irrational interpretation and an absurd result. 3. Master and servant 419-Termination of "compensation" on cessation of disability not change of "status" forbidden.

[5, 6] This defendant, albeit he had ample notice, did not heed it. He now contends and insists that notwithstanding, yet judgment in replevin went only to the determination of that plaintiff's right to the possession of the property. To prevail in replevin a plaintiff must show that at the time of the unlawful started working for another employer, and on Where an employee receiving compensation taking or detaining of the replevied chattel being injured was awarded compensation from he had either a general or special property the other employer, the accident commission, therein, and right to its possession. How far on first employer's petition for discontinuance a plaintiff must go to make proof of his case of compensation, under Rev. St. c. 50, § 36, auoften depends upon his adversary's plea. In thorizing the commission to discontinue comthe replevin case adverted to, no plea was pensation, or make such order as justice may filed. A default was suffered. An action of require but shall order no change of the "stareplevin is not finally disposed of by the en- terminate the compensation from the first emtus" existing prior to the application, should try of a default. That is not the final judg- ployer, not as of the date of the filing of the ment. It has been said that an action of petition, but as of the date on which the emreplevin is not disposed of until the question ployee commenced working for the second emof the return of the property is acted upon. ployer, on the ground that disability then ceasTuck v. Moses, 58 Me. 461. Default of the ed, since "compensation" is not a gratuity, but replevin defendant did not settle the ques-"status" has reference to his relation toward is paid to make good a loss, and the employee's tion of the return of the property. This was the previous employer. determined by the inquiry into the facts and the adjudication thereon by the court. The court adjudged the property to belong to the plaintiff. The record so shows. Were the record not extended, then the docket Appeal from Supreme Judicial Court, entries likewise in this instance so showing Aroostook County, at Law.

[Ed. Note-For other definitions, see Words and Phrases, First and Second Series, Compensation; Status.]

(113 A.)

Proceeding under the Workmen's Compen- (men's Compensation Act, as Mr. Justice Morsation Act by John Fennessey, for compensa- rill aptly observed in Emile Thibeault's Case, tion for injuries, opposed by the Stebbins 119 Me. 336, 111 Atl. 491, is to pay an injured Lumber Company, employer, and the Employers' Liability Assurance Corporation, insurer. On petition for review of original award and for termination of compensation. From judgment vivifying the order of chairman of the accident commission, the employer and insurer appeal. Appeal sustained, and decree modified.

"In the interpretation of statutes, the great On the unquestioned facts, the chairman of principle which is to control is the intention of the accident commission ordered termination the Legislature in passing the same, which intention is to be ascertained from the cause of compensation, but from the time of the or necessity of making the statute as well filing of the petition, rather than relating the as other circumstances. A strict and literal command back somewhat more than two interpretation is not always to be adhered months, to the day on which the first inabil- to, and where the case is brought within the ity admittedly ceased. A justice of this court intention of the makers of the statute, it is vivified the order by the entry thereon of within the statute, although by the technistatute directed decree. R. S. c. 50, § 34. cal interpretation it is not within its letter. The single question arising on appeal is It is the spirit and the purpose of a statute which are to be regarded in its interpretawhether what the chairman decided ought to tion; and if these find fair expression in have been otherwise.

the statute, it should be so construed as to [1] The underlying object of the Work-carry out the legislative intent, even although

such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers."

Certainly the Legislature did not mean that injury incurred by a workman out of and in the course of his employment should continue without alleviation or cure until the filing of an application for review. That would outreason reason. But it is not more illogical than it would be to say it meant that, regardless of the fact that the employee to his own knowledge had fully recovered from total injury, nevertheless amends must be his until petition filed against him for a change of decision,

In accordance with the agreed facts, Mr. Fennessey's right to compensation should have been terminated as of the date that total disability on his part ceased.

The appeal is sustained. The decree appealed from hereby is modified, so as to be effective from June 5, 1920. Appeal sustained.

LITTLEFIELD v. HUBBARD.

[3] In the present case the manifest initial purpose was that Mr. Fennessey should be compensated at a stipulated weekly rate for total loss of capacity to work, while such loss continued. Only this, and nothing more. Good faith and fair play were as much expected of him as from his employer or the latter's insurance carrier. And be it said to his credit that, his attention called to the matter, he assumed such attitude. It was open to him, when total disability had ceased or diminished, to file a petition for a review of the compensation carrying order. Of course he could waive compensation as fully and freely after it was granted as he might have foregone request therefor. It would seem consistent for him and his employer mutually to agree as to the time when his total disability ceased, and, so agreeing, to join in asking revokement of the compensatory order. It is not that the Legislature meant that payments should go on and on, and still on, in continuing duty on the one 1. Boundaries 21-Described boundary held hand and right on the other, ranking higher in to exclude right of way adjoining premises. potency than the decree which brought both A deed describing the boundary of the land the duty and the right respectively into being, as commencing at the southeast corner of the unless, and until, petition be filed for review. | lot bounding it on the north, being on the west The term "compensation" by necessary impli- side of a right of way from such lot, the first cation spurns the suggestion. Compensation line being the same as the south line of such is not a gratuity; it is not charitableness. Compensation makes good a lack or loss. Contention that the language, "shall order no change of the status," is of trammeling effect finds not more than mere semblance of sustention. Status has reference to the legal social relation and condition of a person; as the status of a married woman. Burlen v. Shannon, 3 Gray (Mass) 387. Derivatively the word relates to relationship. As used in

the statute it means the relation in which an injured person stands towards him who was his employer at the time of the accident. It goes to his right to receive compensation. It means that if the question of such right be adjudicated that it may not be reviewed previously to the date of application. There is, however, easily seen distinction between a judicially determined right to receive compensation while disability resulting from accident continues and the receiving of money, directly or indirectly, from an erstwhile employer for supposed disability when in reality not any exists. The commission in the first instance made a virtually self-annulling decision; that is to say, its efficacy was to cease when total disability ended. Analogy will be found in a decree of alimony awarded on the dissolution of a marriage. Reconciliation ends alimony. Co. Litt. 32, 33. So, ordinarily, does the wife's remarriage. Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 672.

(Supreme Judicial Court of Maine. April 16, 1921.)

lot 401 feet to an eyebolt, and thence back to the right of way about 400 feet to a point 15 feet south of the place of beginning, held not the north extended across the right of way, to include the right of way though the lot on and its south line would not otherwise be 401 feet.

2. Boundaries 2-"To" is word of exclusion. In the boundaries of real estate the word "to" is a word of exclusion, unless by necessary implication it is manifestly used in a different