pressed, perhaps, is to be found in this | to perform the condition so that the title to clause, which is: "The said Gilbert E. Em- one-half the farm may vest in them, and they then after performance become tenants in common with the defendant, need not be considered. ery agrees to pay one-half the purchase money on the above-described farm, and, when paid for, the said Emery is to have one-half of said farm in common undivided with said Dana." The purchase price of the farm was the amount of the mortgage given by Dana, and for the whole of which he was necessarily personally liable. If full effect is given to all the language of the deed, it is apparent Dana did not convey to Emery the whole or one-half of the farm free from incumbrances, but merely the right to obtain one-half by paying one-half the mortgage. When this should be done and Dana relieved from liability therefor, Dana's warranty would take effect, and would protect Emery against the other half of the mortgage debt, which, as between Emery and Dana, Dana agreed to pay. The defendant by his cross-bill asks spe cific performance of Emery's agreement to convey to him his interest in the farm, and a decree has been made, subject to exception, ordering such a conveyance by the plaintiffs. The plaintiffs contend, in support of their exception to the decree, that there was no evidence of an oral agreement to reconvey to Dana; but there was evidence of an attempt to reconvey by the surrender of the deed. from which it could be inferred that Emery had agreed to do what he attempted to do. [7] Dana's release of Emery from his contract to assist in carrying on the farm, live there, and furnish a home for the father and mother, and pay one-half the mortgage, which could properly be inferred from his assent to Emery's ceasing to carry out the contract, was a sufficient consideration, without reference to Dana's tacit agreement to do these things, which was fairly inferable from the [3] If Emery, therefore, by acceptance of the deed poll, covenanted to pay one-half, he took no title to the land until his covenant was performed because his ownership was dependent upon such payment as a condition precedent. The plaintiffs, therefore, to es-evidence. tablish their title under the deed or their It is further objected that there can be no right to a clear title to one-half from Dana, were required to show performance of the condition. Parol evidence, if offered, tending to show such performance, was properly met by parol evidence from Dana tending to show that Gilbert, not only had not performed, but had abandoned, all intention of performing the condition precedent to the vesting of title in him. [4] If in the absence of any limitation as to the time within which the covenant should be performed it should be inferred a reasonable time was intended (New England Box Co. v. Prentiss, 75 N. H. 246, 72 Atl. 826), such time would be one within which it would be equitable for him to do so. decree for specific performance because there has not been on the part of Dana sufficient part performance to take the case out of the statute. This claim is based upon the proposition that, as between tenants in common, there can be no sufficient change in possession to avoid the bar of the statute. There are authorities which sustain this proposition; and as said in Rhea v. Jordan, 69 Va. 678, 682: "If the continued possession stood alone, perhaps that might be so." When, however, the party claiming specific performance has not only actually taken possession to the exclusion of the other tenants, but has also made payment and valuable improvements, these acts together, in most jurisdictions, make a sufficient part performance. Town v. Needham, 3 Paige (N. Y.) 545, 24 Am. Dec. 246; Barrett v. Forney, 82 Va. 269; Rhea v. [5] Emery's covenant to pay rests in parol -his acceptance of the deed poll. As it would be competent to show by parol that he never accepted the deed, and hence never | Jordan, 69 Va. 678; Littlefield v. Littlefield, agreed to make the payment, it must be equally competent to show in the same way that he had asked for and received a discharge from such engagement. [6] Whatever the legal effect of such abandonment may be, it is clear that the plaintiffs have no title to the premises until performance of the condition precedent, which they have not performed or offered to perform. The conveyance being upon a condition precedent, no estate in the land passed until performance of the condition. Rollins v. Riley, 44 N. H. 9, 12. Hence a tenancy in common with Dana by Emery or the plaintiffs is not established. There was therefore no error of law in the order dismissing the bill as the facts were presented. Whether the plaintiffs, after this lapse of time and upon the 51 Wis. 23, 7 N. W. 773; Peck v. Stanfield, 12 Wash. 101, 40 Pac. 635; 36 Cyc. 666. If one tenant in common enter into possession, claiming either in his own right or in the right of another the entire title, such entry and claim will be in law an ouster of the cotenants, and a trespass for which trespass quare clausum may be maintained. Thomp son v. Gerrish, 57 N. H. 85, 86; Wood v. Griffin, 46 N. H. 230, 237. Possession so retained, with the knowledge and acquiescence of the other tenants, for the period of the statute of limitations, will constitute an adverse possession which will bar the title of the other tenants. Perkins v. Eaton, 64 N. H. 359, 10 Atl. 704; Clark v. Wood, 34 N. H. 447; Gage v. Gage, 30 N. H. 420, 426. [8] Dana went into exclusive possession ance from Emery, the only defect in which this ground that equity decrees the specific is the record of the paper surrendered to him as a conveyance. Occupancy under that, under the circumstances disclosed, for the statutory period, would have perfected his right, although the supposed conveyance was legally defective. Jackson v. Tibbits, 9 Cow. (N. Y.) 241, 253. performance of an oral contract to convey land. White v. Poole, 74 N. H. 71, 73, 65 Atl. 255, and cases cited. The statute is avoided by the fact of fraud-not arbitrarily by the change of possession. Taking possession under the contract and making improvements are evidentiary facts which authorize the finding of fraud. Stillings v. Stillings, 67 N. H. 584, 42 Atl. 271. Where the facts authorize the finding that the claimant of the land will be defrauded if the oral contract is not carried out, specific performance may be decreed, although there has been no possession taken. Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279; Br. St. Fr. § 463. In Weeks v. Lund, 69 N. H. 78, 45 Atl. 249, this principle was not denied, but specific performance was refused upon the ground that the services forming the consideration paid were such as could be adequately compensated in money. Here the family relationship may have been, and doubtless was, an element in the contract that Gilbert should live on the farm and help carry it on, and provide a home for the father and mother. The release of Gilbert from these engagements and the per [9] Dana's occupation is a few years short of the statutory period; but a possession sufficiently exclusive and notorious to be adverse cannot logically fail to be effectual as a part performance of an oral contract to convey. The ground upon which it is held that possession by one cotenant cannot be deemed part performance is that the possession of one cotenant is the possession of all, | and the possession is not referable to the contract, but to the tenancy. Workman v. Guthrie, 29 Pa. 495, 72 Am. Dec. 654, a leading case in support of the rule that as be tween tenants in common there cannot be a sufficient change of possession to take a parol contract to convey land out of the statute, concedes that one tenant in common may acquire title against his cotenants by adverse possession. If the possession of one cotenant must always as matter of law be referred to the tenancy, this would be im-formance of his agreement to furnish a possible. If it is not necessarily in all cases referable to the tenancy, cases may arise when such possession is plainly explainable only by the contract. home for his mother by Dana might be held to constitute services the value of which could not be adequately measured in money, so that the decree might be sustained without reference to the character of Dana's possession. In Wainman v. Hampton, 110 N. Y. 429, 18 N. E. 234, the conclusion that the possession claimed was not sufficient to constitute But, without reference to these considerapart performance is put upon the ground tions, the circumstances under which Emery that it was not for an instant hostile in abandoned the farm to Dana, Dana's subsesuch sense that, without more, it could if quent exclusive occupation under claim to continued have created a title by adverse title, his payment of the consideration in repossession. Conversely, if the possession is lease and performance of Emery's obligation, such as constitutes an adverse holding, log- and the improvements made by him upon the ically it may constitute part performance faith of the contract clearly authorize the of an oral contract to convey. The character finding that to permit the plaintiffs to set of the possession taken and held must be up the statute would be a fraud upon the found from the evidence. It is doubtful if defendant. The decree of specific performthe rule for which the plaintiffs contend goes ance was authorized. Relief may be affordfarther than that. "Where a plaintiff claims ed in this way, or, the deed having been as purchaser of land to the possession of long since surrendered, by a decree canceling which he and others are entitled as tenants it. Sipola v. Winship, 74 N. H. 240, 244, in common, or joint tenants, no mere pos- 66 Atl. 962; Tucker v. Kenniston, 47 N. H. session can avail as a part performance." | 267, 270, 93 Am. Dec. 425; 2 Sto. Eq. Jur. Pom. Spec. Perform. § 121. $$ 700, 705. [10] This may be conceded as the law Exceptions overruled. All concurred. HOLMAN v. BOSTON & M. R. R. Oct. 1, 1912.) without sustaining the exception; for in this case there was a formal (though ineffectual) attempt to convey, sufficient at least to characterize the possession taken, exclusive possession as owner, payment by re (Supreme Court of New Hampshire. Cheshire. lease of the stipulations of the grantor's contract and their performance by the grantee, and valuable improvements. These facts authorize a finding that to permit Emery's heirs to avoid his oral contract, scrupulously observed by him in his lifetime, would be a fraud upon the defendant. It is upon 1. WITNESSES (§ 270*) — PASSENGERS - INJURIES-ADMISSION OF EVIDENCE. In an action against a railroad company for personal injuries, a physician, who had testified that plaintiff was not suffering from neution that, after examination of plaintiff, he had rasthenia as claimed, stated on cross-examinagiven his affidavit that she was in good health, and that his affidavit was taken to be used up- [ant's counsel took an exception to the ques on defendant's application to the court to take tion, upon the ground that it was incompetent plaintiff's deposition in term time, whereupon and prejudicial. The plaintiff's counsel ofplaintiff's counsel asked witness, "Did you know Judge P. [the trial judge] denied that fered to withdraw the question, when, upon motion?" and witness replied that he knew the objection of the defendant, the court ornothing about it. Held, that the question was dered it to stand on the record. The quesimproper, as calling for immaterial evidence. tion was clearly incompetent. Whether the witness knew what disposition the court made of the application to take the plaintiff's deposition had no conceivable bearing upon the question of damages, which was the issue on trial. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.*] 2. WITNESSES (§ 281*) - EXAMINATION SUMED FACTS. As The question assumed as a fact that defendant's application was denied, though in the form of an interrogatory. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 987; Dec. Dig. § 281.*] 3. APPEAL AND ERROR (§ 1048*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. The error in permitting the question to the physician was prejudicial; it being reasonable for the jury, in connection with other evidence, to infer, from the statement in the question that the court denied the application to take plaintiff's deposition, notwithstanding the physician had stated that she was in good health, that the physician was not a credible witness. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4140-4145, 4151, 41584160; Dec. Dig. § 1048.*] 4. TRIAL (§ 187*)-PROVINCE OF JURY. It is the exclusive province of the jury to determine the credibility of witnesses, and a statement or finding by the court thereon would be improper. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 414-419; Dec. Dig. § 187.*] 5. APPEAL AND ERROR (§ 260*)-PRESENTA TION BELOW. A ruling forbidding the withdrawal of a question cannot be reviewed, if not excepted to. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. § 260.*] [2, 3] That it was prejudicial is equally apparent. The interrogatory assumed as a fact that the application was denied. It was the unsworn statement of a fact by counsel, and, although it was contained in an interrogatory, it was no less improper than it would have been if it had occurred in a declarative sentence. Demars v. Co., 67 N. H. 404, 407, 40 Atl. 902; Pearson v. Beef Co., 69 N. H. 584, 586, 44 Atl. 113. In connection with the other testimony in the case, the jury might, not unreasonably, infer that the physician was not a credible witness, because the court had denied the application to take the plaintiff's deposition, notwithstanding the doctor stated in his affidavit that she was in good health, which was also his opinion upon the stand. [4] It cannot be doubted that the personal views of the judge at the trial as to the credibility of witnesses would have great weight with the jury; and as it is, under our system of jurisprudence, the exclusive province of the jury to weigh the evidence bearing on the credibility of witnesses, a finding by the court upon that subject would Transferred from Superior Court, Cheshire not be competent or permissible evidence for County; Pike, Judge. Action by Bessie I. Holman against the Boston & Maine Railroad. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions sustained, and verdict set aside. Charles A. Madden, of Keene, for plaintiff. John E. Allen, of Keene, and Streeter, Demond & Woodworth, of Concord, for defendant. the consideration of the jury. In answer to the argument that the decision in Conn. River Power Co. v. Dickinson, 75 N. H. 353, 74 Atl. 585, is a direct authority for the position that the question was competent, it is sufficient to say that the distinction between that case and the present one, upon this point, is apparent. The fact contained in the question addressed to the witness in that case was not clearly incompetent. Whether the witness took into WALKER, J. [1] In consequence of the account, in his estimate of the value of the accident, the plaintiff claimed she was suf- land flowed, the fact that 50 per cent. was fering from neurasthenia. In the course of to be added to the verdict of the jury by the cross-examination of a physician, who the court, in accordance with the statute, at had testified that she was not suffering from least called for information that might have that disease, he stated that after an examina- a logical bearing upon the value of the wittion of the plaintiff he had given his affida-ness' testimony. Whether such evidence vit that in his opinion she was in a good would finally be held to be competent or condition of health, and that the affidavit incompetent was a question upon which was taken to be used upon the defendant's counsel might reasonably differ. The quesapplication to the court to take her depo- tion was not so clearly incompetent that no sition in term time. Thereupon the plain- reputable lawyer could believe that it was tiff's counsel asked the witness the following competent. But to ask a witness whether question: "Did you know Judge Plummer he knew that the court in ruling upon some denied that motion?" The witness replied motion, or a jury in rendering a verdict in that he knew nothing about it. The defend- a former trial, had disbelieved his testimony would hardly be justified by any one as juries not specified therein by failing to object competent, even on cross-examination. to proof of those injuries. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. 4. HUSBAND AND WIFE (§ 209*)—INJURY TO Dig. § 812.*] WIFE-HUSBAND'S RIGHT TO RECOVER. Rev. St. c. 23, § 76, which provides that in a street, etc., may recover under certain "damage in his property" through any defect conditions, does not give a husband a right to recover for loss of his wife's service and the expense connected with her recovery on account of an injury sustained by her. [Ed. Note.-For other cases, and Wife, Cent. Dig. §§ 766-772; Dec. Dig. § see Husband 209.*] [5] Nor was the prejudicial character of the question obviated, as perhaps it might have been (Hallock v. Young, 72 N. H. 416, 57 Atl. 236), by a finding that it did not influence the jury in reaching their verdict. It was allowed to stand as a part of the rec-whoever receives any "bodily injury" or suffers ord, on the ground that the plaintiff introduced the irrelevant matter at his peril. When the plaintiff offered to withdraw it, the defendant objected that it could not be withdrawn, so as to render the trial a fair one in case the plaintiff prevailed. The court in effect ruled with the defendant upon this point, and declined to permit the plaintiff to take steps toward correcting the error. But it is unnecessary to decide whether this ruling was wrong as a matter of law, for the plaintiff took no exception to it, and the point is not presented by the case. The presumption is that the plaintiff was satisfied with the ruling, and was content to stand by his original position that the question was not incompetent and prejudicial. As the defendant's exception raised this issue of law, and as it must be sustained, other exceptions taken during the trial are not considered, as they may not arise upon another trial. Exception sustained. Verdict set aside. All concurred. Report from Supreme Judicial Court, Cumberland County, at Law. Separate actions by Estella A. Bean and by Charles A. Bean against the city of Portland. On report. Judgment for plaintiff in first action, and judgment for defendant in second action. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, and HALEY, JJ. Foster & Foster and Eben Winthrop Freeman, all of Portland, for plaintiff. Richard E. Harvey and Emery G. Wilson, both of Portland, for defendant. CORNISH, J. These two actions were brought by husband and wife to recover for injuries sustained in an accident which occurred on the evening of April 22, 1909, on Dartmouth street, in the Deering district of the city of Portland, and were tried to1. MUNICIPAL CORPORATIONS (8 796*)-gether. By the terms of the stipulation unSTREETS-DEFECTS-INJURY TO TRAVELERS- der which they are reported to the law BEAN v. CITY OF PORTLAND (two cases). (Supreme Judicial Court of Maine. Nov. 1, LIABILITY. 1912.) Under Rev. St. c. 23, § 76, which author izes recovery for injury to travelers caused by defective streets, a city is liable for injury to a traveler, who, in the nighttime, drove over an unguarded embankment at the end of a street, which the city was under the duty of maintaining and protecting, the traveler having exercised due care for her own safety, regardless of whether the city has a remedy over against a railroad company, whose right of way joined the street at the place of the accident. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1655; Dec. Dig. § 796.*] 2. MUNICIPAL CORPORATIONS (§ 819*)-DE- In an action against a city for injury to a traveler, who, in the nighttime, drover over an unguarded embankment at the end of a street, evidence held insufficient to show contributory negligence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1739-1743; Dec. Dig. § 819.*] 3. MUNICIPAL CORPORATIONS (§ 812*)-DEFECTIVE STREETS-INJURY TO TRAVELERNOTICE-SUFFICIENCY-WAIVER. In an action against a city for injury to a traveler on a street, the city waived insufficiency of the notice of the accident as to in of liability in the first instance, and, in the court, this court is to pass upon the question case of the wife, the further question of recoverable damages; the amount of actual damages in both cases having been fixed by findings of the jury. [1] 1. We will consider first the action brought by the wife. The evidence is voluminous, covering over 300 printed pages, and yet the essential facts are not seriously in controversy. The city relies upon three points in defense: First, that the place where the accident happened was not a highway, as contemplated by R. S. c. 23, § 76; second, contributory negli gence; third, that the liability, if any, rests upon the Boston & Maine Railroad, and not has sufficient merit to defeat the action. upon the city of Portland. None of these The evidence is overwhelming as to the liability of the city for the maintenance and protection of the street at the place where the accident happened. As long ago as 1902 the joint standing committee on new streets laid out Dartmouth street 60 feet wide and running in a general westerly direction from Forest avenue, on the east, 1,278 feet, to Deering | to the adjoining land of a private individual, avenue, on the west. The location was duly no recovery can be had. It is not the title filed in the office of the city clerk, and was to the precise place where the party falls duly accepted, and the street "accepted, al- that fixes the liability, but the proximate lowed, and established as a street or public cause of the fall. The first point in defense way for the use of the city of Portland," cannot be sustained. by the mayor and aldermen on November 3, 1902. The street itself was not built at that time, and the same proceedings for laying out and acceptance were repeated in November, 1903. The proposed street crossed the tracks of the Worcester Division of the Boston & Maine Railroad at a distance of about 270 feet from Forest avenue, and in 1904 the municipal officers of Portland petitioned the Railroad Commissioners of the state for permission to cross these tracks at grade. After due notice and hearing this permission was granted; the street within the railroad location to be constructed at the expense of the city, but to be maintained at the expense of the railroad company. In June, 1905, the municipal officers ordered that the street be opened to public travel. A similar order was passed in February, 1907, and on March 18, 1907, the commissioner of public works was authorized and directed to construct a crossing over the railroad tracks. [2] Nor is there any force in the contention that the plaintiff was not in the exercise of due care. She was a comparative stranger in the city; her home being in Livermore Falls. She was visiting her daughter, who was ill, and who lived on Noyes street, another street that leads from Forest avenue toward the west. With the nurse she had gone to Portland for medicine for the daughter, and this accident occurred on her return. Several streets lead toward the west from Forest avenue, and the plaintiff admits that she first intended to take William street; but, having passed that, she turned off, as she supposed, into Noyes street. It proved to be Dartmouth street. But that error can hardly be called a negligent act on her part and the proximate cause of the accident. She had a right to presume that all these streets were equally safe and convenient for travel. On the east side of Forest avenue, opposite the entrance of Dartmouth street, was an incandescent light, which revealed the entrance into this street and impliedly invited travel. plaintiff accepted the invitation, and was driving in a careful manner, with a kind The was precipitated over the unguarded embankment. All the duties that the law cast upon her were freely met, and the accident can in no way be attributed to any want of due care on her part. These orders were not complied with to their full extent, but the city constructed that portion of the street between Forest avenue and the east line of the railroad location at some time prior to 1903, and and well-broken horse, when suddenly she has since maintained and improved the same. A fine roadway was constructed, a sidewalk built on the south side, and private houses have been erected. But the city neglected to place any railing or barrier at the end of this constructed portion, where it meets the railroad location. At that point the bank falls off rather abruptly, a distance of from 2 to 4 feet, toward the tracks, and no barrier or guard was erected at the end of the traveled way. This lack of railing was the cause of the accident. The plaintiff drove into Dartmouth street from Forest avenue between 9 and 10 o'clock on a dark and misty evening, and, ignorant of the situation, drove straight on over the [3] The jury have assessed her total damembankment and sustained the injuries al-ages at $1,400, $150 of which was for injury leged. We are unable to perceive on what ground it can be claimed that the city was not responsible for the place where the accident happened. It is true that the pitfall was on the location of the railroad company; but it was the duty of the city to erect a railing or barrier to protect travelers from that pitfall. The liability of the city did not end with the constructed portion of the way. Its duty was to use due care in protecting the travelers on that way, terminat ing as it did, from perils beyond. With equal force might it be claimed that if, through want of railing on the side of a The third point raised in defense, namely. the liability of the Boston & Maine Railroad, is not involved here. The city is primarily liable, and whether the city has or has not a remedy over against the railroad company can in no way affect that liability. It is therefore the opinion of the court that the action of Mrs. Bean is clearly maintainable. The next question is that of recoverable damages. to her ribs; and the defendant contends It is unnecessary to decide whether, under this notice, evidence of injury to the ribs was strictly admissible, had objection been made, because this evidence was introduced without any objection on the part of the defendant. The only objection made to the notice itself was on the ground that it was |