motion, and at 2 o'clock in the afternoon of a June day, and realizing the necessity of first lashing the wheel, as well as having the means at hand for securely lashing the same, must be held subject to the rule laid down in Judge v. Narragansett Electric Lighting Co., 21 R. I. 128, 42 Atl. 507, viz.: "In these circumstances he was bound to the exercise of a very high, if not the highest, degree of care, or, in other words, to a degree of care commensurate with the dangers to which he was exposed." His admission that he knew that the piston rod would run up and down if the mill was not properly lashed is evidence under the circumstances of this case of such contributory negligence in not fastening it as suffices in law to preclude his recovery.

The defendant's exception is sustained, and the plaintiff may show cause on June 5, 1911, at 10 o'clock a. m., why judgment should not be entered for the defendant.

(32 R. I. 338)

MORAN et ux. v. LAVELL. (Supreme Court of Rhode Island. May

29, 1911.)

Judge.

Action by Hugh Moran and wife against

James Lavell. Case transferred from the

superior court, on plaintiffs' exceptions to a directed verdict for defendant. Exceptions overruled, and case remitted, with directions. John C. Quinn, for plaintiffs. J. Jerome Hahn and P. H. Mulholland, for defendant.

PARKHURST, J. This is an action of trespass and ejectment, brought by the plaintiffs against the defendant in the Sixth district court, and later brought to the superior court on claim for jury trial, to obtain possession of a certain store at No. 370 Valley street, in said Providence. The premises on which said store is located were originally owned by William E. Stuart, who sold the same to the plaintiff and his wife, by deed

same day; said deed being subject to a lease to the defendant, Lavell, which lease was executed on February 11, 1908, and was for a term of five years at a monthly rental of $40. The said lease contained the following covenant, to wit: "Said lessee, for himself, and for his executors, administrators, and assigns, does covenant and agree to pay or cause to be paid to said lessor, his successors and assigns, the sum of $40 per month and every month during said term for rent and hire of the above-named premises, in payments of $40 each on the 11th day of each month successively to the end of the term of five years; and in case of failure on his part to pay any rent within ten days subsequent to the time as above specified, or in case of failure to conform to all the conditions of this lease, said lessor shall be at liberty to declare this lease at an end and terminated, and thereupon to take immediate possession of the premises, in which case the said lessee shall be considered as tenant holding over his term."

It appears from the testimony that, after the sale by Stuart to Moran, no notice of the conveyance was given by plaintiffs to Lavell, and that, when Lavell learned that plaintiffs had bought the property, he made tender of the rent due May 11, 1909, to plaintiffs on the 22d day of May, 1909; that Mr. Moran then refused to accept the same, claiming that the rent was more than ten days overdue, and that he was entitled to the possession of the premises. It in no way appears in the testimony that Mr. Lavell knew at any time before May 22, 1909 (the alleged date of the tender) that Mr. Moran had bought the place, and it appears that Mr. Moran knew where Mr. Lavell was located, and there seems to have been no reason why he should not have notified Mr. Lavell of his ownership of the place and demanded his rent therefor. As a matter of fact, no demand for rent was made by the plaintiffs prior to the tender of May 22, 1909, or at any other time; and the sole basis of this suit is the plaintiffs' claim that, by reason of the defendant's failure to pay on or before May 21st, the lease was forfeited ipso facto, and the plaintiff became entitled to maintain this suit. In the district court the action was tried on its merits, and decision was for the defendant. In the superior court Mr. Justice Brown, after plaintiffs' case was closed, directed a verdict for de fendant, upon plaintiffs' exceptions to which direction the case is before this court.

[1] The only question necessary to be determined is whether, under a lease such as is in evidence in this case, it was necessary for the landlord to make a demand for the rent before the lease could be declared to be forfeited; that being the sole ground upon which the verdict was directed for the defendant in the superior court. There is no doubt that,

mand is specifically waived in the lease, and in the absence of a statute to the contrary, demand for the rent must be made before the lease is forfeited. "At common law, when a forfeiture was sought to be enforced for the nonpayment of rent, no distinction was made between cases where there was sufficient distress upon the premises and where there was not. In every case, before a landlord could enter for nonpayment of rent, he must have made a personal demand for the precise sum due for the last quarter, and if the demand included any portion of the rent of a previous quarter it would have been bad. It must also have been made on the day it became due or legally demandable," etc. Taylor's Landlord and Tenant, vol. 2 (9th Ed.) p. 84, § 493, and cases cited. "Where a landlord has a right of re-entry for nonpayment of rent, a demand of the rent, either upon or after the last day which the lessee has to pay, is essential to complete the forfeiture, and enable him to maintain an action; for it is not until after the demand and nonpayment that this condition is broken." Taylor's Landlord and Tenant, vol. 1, § 297, pp. 362 and 363 (9th Ed.), and cases cited. "The general rule that, to entitle the landlord to enforce forfeiture for the nonpayment of rent, he must make a demand for payment, was laid down at an early date, and has since been unanimously followed." 18 Am. & Eng. Ency. of Law (2d Ed.) 375, and cases cited. See, also, 24 Сус. 1354 et seq. "In the absence of a statute providing otherwise, a demand for the rent on the day it becomes due is necessary to work a forfeiture of the lease for nonpayment, unless waived by the lease." Godwin v. Harris, 71 Neb. 59, 98 N. W. 439; Cole v. Johnson, 120 Iowa, 667, 94 N. W. 1113; Rea v. Eagle Transfer Co., 201 Pa. 273, 50 Atl. 764, 88 Am. St. Rep. 809, and cases in"The claim of the plaintiff is stricti juris. He seeks to enforce the forfeiture; and courts always lean against penalties and forfeitures. To entitle himself to recover the possession of the leased premises, he must show that all necessary forms which the law has prescribed have been scrupulously observed. There must be a demand for the

fra.

rent on the day it is due, at a convenient time before sunset. There is nothing in the terms of this lease to show that the common

law requirement of demand is waived or dispensed with. Where no place of payment is named, a tender upon the land is good, and prevents forfeiture. And if the lessor desires to enforce a forfeiture, he must demand the rent upon leased premises at the most notorious place." Chapman v. Harney, 100 Mass. 354. A myriad of other cases might be cited to the same effect, but it is not necessary to do so, in support of such an obvious and well-settled principle. The plaintiffs' counsel cites no case to the contrary, and we know of none such.

[2] Furthermore, it has been held that a tender of the rent due, after the time when the rent is due, but before a forfeiture has been declared, precludes the right of the lessor to thereafter terminate the lease because of the failure to pay rent on the day when it was due." 24 Cyc. 1353, and cases cited in note 37; Burnes v. McCubbin, 3 Kan. 221, 87 Am. Dec. 468; Tuttle v. Bean, 13 Metc. (Mass.) 275; Lewis v. St. Louis, 69 Mo. 595; Carondelet v. Wolfert, 39 Mo. 305; Jones v. Reed, 15 N. H. 68; Planters' Ins. Co. v. Diggs, 8 Baxt. (Tenn.) 563. See, also, 18 Am. & Eng. Ency. of Law, 389, 390, and cases cited. We hold, therefore, that demand by the landlord for payment of rent was necessary before he could declare a forfeiture, and that the tender by the lessee, on May 22, 1909, prior to the declaration of forfeiture, was a good tender, and precluded the landlord from thereafter declaring a forfeiture for nonpayment of the rent due May 21, 1909.

The other exceptions taken by the plaintiffs are without merit, and are not pressed in argument.

The plaintui's' exceptions are overruled, and the case is remitted to the superior court, with direction to enter judgment for the defendant upon the verdict of the jury as rendered by direction of the court.

(32 R. I. 402)

MCCOMMISKEY v. GREENE, Town Treasurer.

(Supreme Court of Rhode Island. May

29, 1911.)

BRIDGES (§ 37*)-MAINTENANCE-REPAIRS.

A bridge used as part of a town highway, prior to its adoption as a state road according to Pub. Laws 1902, c. 982 (Gen. Laws 1909, c. 84), which omits bridges as subjects confided to the state board of public roads, is no part of the state road, so as to make it obligatory on the state to repair it, thereby exonerating the town from its duty to repair "highways and bridges," as provided in Gen. Laws 1909, с. 83.

[Ed. Note. For other cases, see Bridges, Cent. Dig. § 103; Dec. Dig. § 37.*]

Case Certified from Superior Court, Kent County; George T. Brown, Judge.

Action by Joanna McCommiskey against Warren M. Greene, as Town Treasurer of Coventry. Case certified from the superior court of Kent county, under Gen. Laws 1909, c. 298, § 5. Questions submitted answered, and case remitted.

Quinn & Kernan, for plaintiff. Ezra K. Parker, for defendant.

PARKHURST, J. This is an action brought by the said plaintiff against the defendant, as town treasurer of the town of Coventry, for injuries she alleges that she received on the 2d day of August, 1909, while she was driving in a carriage on the highway, passing in an easterly and westerThe cause is now before this court to be heard upon certain questions of law certified by the superior court sitting in and for the county of Kent; it having been agreed between the parties that the highway described in the declaration, and called a "state road" in the agreed statement of facts, passing through the village of Coventry Center, uses said bridge in crossing the South fork of Flat river, and that "only by the use of the said bridge can travelers on said state road (passing in an easterly and westerly direction through Coventry Center) cross the said stream of water," and that "the portion of said state road which passes through said Coventry Center, including said bridge, was prior to its adoption as a state road a public highway of said town of Coventry, and had been such a highway for more than 100 years." The questions certified, as aforesaid, are: "First. Is the said bridge, located as aforesaid, a part of the said state road? Second. Is the town of Coventry under legal obligation to build or repair said bridge?"

The defendant's counsel earnestly contends that the bridge is a part of the state road, and that the first question should be answered in the affirmative, and cites many authorities to the general principle that where a public highway passes over a bridge, and the bridge must be used to make the highway available for travel, the bridge is a part of the highway. We have no doubt that the general principle as above stated is correct, and supported by abundant authority. But the question we are called upon to answer depends upon the construction of chapter 982 of the Public Laws, passed April 3, 1902, entitled "An act to provide for the construction, improvement, and maintenance of state roads" (now substantially re-enacted as chapter 84, Gen. Laws R. 1. 1909). There is no question that, prior to the enactment of the said chapter 982, the town of Coventry was liable to repair the

I. 1909. It is to be noted that in the very first section of said chapter 83, imposing upon towns the duty of repairing, etc., the first words used are, "All highways, causeways and bridges," etc.; and the words "highways and bridges" are used in many of the succeeding sections, thus recognizing "highways" and "bridges" as subjects of separate and distinct consideration, so far as repair is concerned, although they may be used as parts of the same highway in the general acceptation of that term, and subject to the same general obligations as to repair and liability for neglect.

In considering the construction of chapter 982, above referred to, we find in the first place that the word "highways" is used constantly throughout the act, and the word "bridges" does not appear at all. The state board of public roads created by the act is limited in its original functions to "making such recommendations for relocating, regrading, or improving the main highways of the state as it shall deem for the best interests of the entire state," etc., reporting with maps showing proposed changes, etc., and probable cost, etc., and is forbidden to do any work, other than preliminary surveys, until its report shall have been approved and money appropriated. By section 4 of said act improvement of said highways is limited to a width of 14 feet, and improvements of additional width desired by any town or city are to be paid for by such town or city. We do not find anywhere in the act any evidence of intention on the part of the General Assembly to empower the board to do anything whatever with regard to bridges, nor does it appear that the board has ever undertaken to take possession of or do any work on bridges, or made any recommendation regarding the same to the General Assembly; and we think that the provisions of section 4 above referred to, limiting the improvement of highways at state expense to 14 feet in width, is quite inconsistent with any intention sought to be implied that the act is in any way to be considered as applying to bridges. The methods of bridge repair and construction differ so radically from those employed in ordinary highway work that we feel that it was the manifest intention of the General Assembly that the matter of repair and construction of bridges should not be confided to the state board of public roads, but should be left to the towns, as provided in Gen. Laws 1909, c. 83, above referred to. We feel that it would be a forced and improper construction of chapter 982 to hold that, by implication, bridges are to be included within its provisions, when the word "bridges," used in the General Laws, is expressly omitted in chapter 982. For these reasons, we answer the first

(32 R. I. 349)

WILLIAMS & FLASH CO. v. CARPENTER.

(Supreme Court of Rhode Island. May 29, 1911.)

GUARANTY (§ 9*)-REQUISITES.

A letter sent to a creditor by the father of the president of a corporate debtor, wherein the writer states: "Time is what they need, and you will get every dollar that is due you. *** It calls for time, which I feel you will agree with me you should grant them under the circumstances, if you can be assured that you are not to suffer by the delay"-concluding with the writer's "assurance that your interest will be protected by them," which is answered by a proposal asking the debtor to give its note with indorsements, is not a guaranty.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 10; Dec. Dig. § 9.*]

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by the Williams & Flash Company against J. Perry Carpenter. Judgment for defendant, and plaintiff excepts. Exceptions

overruled.

C. M. Van Slyck and Frederick A. Jones, for plaintiff. William A Spicer, Jr., Frank H. Swan, and Edwards & Angell, for defend

ant.

DUBOIS, C. J. This is an action of assumpsit on an alleged contract of guaranty. The case was brought and tried in the su perior court before the presiding justice thereof, sitting without a jury, who found for the defendant in the following decision: "It does not seem to me that this amounts to a guarantee to pay the debt of another. It is more advisory and by way of assurance than anything else. Its strongest expressions are those expressions that 'time is what they need,' and 'will get every dollar due you,' and 'my assurance your interest will be protected by them.' It does not seem to me that that clearly expresses any promise to pay the debt of another. It is more in the way of advice, and expressions of opinion on the part of the writer of the letter. For that reason I will give decision for the defendant." The plaintiff duly excepted to the aforesaid ruling, and the case was heard by

this court upon the plaintiff's bill of exceptions.

The plaintiff, a corporation doing business in the city and state of New York, had furnished goods to and was a creditor of the Eastern Oil & Supply Company, also a corporation doing business in the city of Providence, R. I., in the sum of $2,902.26 for goods theretofore sold and delivered. October 18, 1907, the Eastern Oil & Supply Company wrote the following letter to the plaintiff corporation, which was duly received by it on the following day:

"Williams & Flash Co., 80 Pearl Street, New York City-Gentlemen: Yours in regard to our account at hand, and in reply beg to make the following statement of our affairs, as we have found them after a thorough examination. Mr. Sayles, who was treasurer and manager of our company, we find has taken everything he could lay his hands on, and, through fraudulent entries on our books, collected and used the moneys that we supposed were being paid to our creditors. When we discovered that things were wrong, our books showed that we had a cash balance more than sufficient to pay every outstanding obligation. Inquiry at the bank showed we had a balance of only three hundred and fifteen dollars ($315.00). An audit of our books also showed that he had collected large amounts that still stood to our credit leaving our outstandings very much less than we had supposed. After my visit to New York we felt assured that you would be willing to arrange with us in such a way that might secure your claim in full, and with that end in view we took steps to dispose of Mr. Sayles as best we might. Knowing that it would be impossible to continue the business with him in any way connected, and the only thing we could see our way clearly to do was to make him surrender his stock and get out. We could have prosecuted, but were not in a position to dictate, as he was a defaulter to another corporation of which he was treasurer to the amount of fifteen hundred dollars ($1,500), and to four individuals to the extent of fifteen thousand dollars ($15,000). While we admit the justice of your claim, and the fact that as a corporation we are liable for the acts of our treasurer, we also feel that it is a hardship to punish the other innocent officers for his crime. He had collected the money for the oil you had consigned, and the bills had been turned over to him to pay, and he had claimed to have paid them, and we had no reason to suppose he had not; for, as stated above, our books showed him to have ample cash to do so. Now that we have disposed of him, we are arranging to put in an additional capital and continue. Our condition is practically this: We have good accounts receivable of about $2,500.00, stock