"The plaintiff admits that in the daughter's room there are defects in the woodwork, and has given evidence tending to show that those defects could be remedied at a cost of not over $500, and also that the admitted defects in the newel posts could be remedied at a cost of not over $25."

To this the plaintiff in error appends the statement that:

"These facts are correctly stated by the court, and are part of the conceded facts in this case."

A binding admission may be made by parties, not only on the record, but by their statements to the court. Such an admission as would support the statement of the learned judge, just quoted, was made by the plaintiff below, defendant in error here. One of the requests submitted by the plaintiff below to the court, for a charge to the jury, was the fourth, which, with the answer of the court, is the subject of one of the assignments of error, above quoted. The defendant in error, howcver, strenuously contends that, in the absence of any evidence brought up by the bill of exceptions bearing on the point in controversy, there is nothing before this court on which it can review the ruling of the trial court in that respect; but the affirmance of this point must be taken as an admission of the fact of defects in the woodwork, and the cost of repair, under the evidence, and not a mere hypothetical statement of the same. As a statement from the plaintiff below, it is a sufficient basis, not only for the ruling upon the point presented therein, but for the statement of the court in its general charge, in regard to the admission as to defective woodwork.

Again, the plaintiff below adopts, and makes part of its brief before this court, the statement of the court below, as to this admitted defect, in its opinion refusing the motion for a new trial, referring to the page of the record where it is found. It is as follows:

"The plaintiff actually did this specified woodwork. After the completion of the work, however, the wood therein shrunk and warped some, and the joints opened. What caused this was the subject of dispute. The plaintiff alleged, and at the trial gave evidence tending to show, that the mischief was occasioned by the damp condition n which the house was kept. The defendant alleged, and at the trial gave evidence tending to show, that the plaintiff had used in this work insufficiently seasoned wood, and that that was the cause of the trouble. But, whatever the cause, the uncontradicted evidence in the case showed that the woodwork could be put in perfect condition at a cost not exceeding $500. It was testified that this could be done at a much less expense, but no witness named a higher sum than $500 as the very outside cost of complete repairment."

We do not have to "look, therefore, to the charge of the judge for the state of the evidence in which that very charge is to be held right or wrong." The admissions made by the plaintiff below in court, appearing in the record and above referred to, present to this court a state of facts which form a sufficient basis on which to review the ruling of the court excepted to. In this, the case at bar is distinguishable from that of Worthington v. Mason, 101 U. S. 149, 25 L. Ed. 848, and from the other cases cited in the brief of defendant in error. We have, therefore, distinctly presented the question whether, in this state of the evidence, the instructions which were given by the court were correct, and to the consideration of that question (the important one in the case) we now turn.

The defendant below contended to the court and jury, as appears

by the record, that, by reason of a defective construction of the woodwork in the daughter's room, there could be no recovery of the amount agreed to be paid to the plaintiff, under the contract for its furnishing and decoration; that the contract was an entire one, and, with this admittedly defective construction, there was not a substantial performance of the same. The plaintiff below, on the other hand, contended that the defect in the woodwork resulted from no fault on its part, but that, if it did, it was of such a character as would be easily remedied at an expense of not more than $500, and that it should be allowed to recover the difference between that amount and the contract price. In this state of the controversy, the court charged the jury on this point, as follows:

"In respect to the defective woodwork, such defect would not preclude a recovery upon the contract which included that work, if the contract was otherwise substantially performed; but the defendant would be entitled to a deduction for the cost of repairing such defect, and the plaintiff would only be entitled to recover the contract price, less this deduction."

The court also affirmed plaintiff's fourth point, which, as already quoted, is as follows:

"Fourth. That the jury should not disallow all of plaintiff's bill, because there are certain defects in woodwork, but should deduct from that bill, on this account, what it will fairly cost, under the evidence, to put the woodwork in as good condition as it should have been under the contract." We think the learned judge in the court below erred in these instructions to the jury. The contract in question is an entire contract. $5,200 was the price to be paid for its performance. The contract itself did not attempt to apportion this sum among various items, and there was, therefore, no basis for such apportionment, if otherwise it could have been appropriately made. The contract being entire, the price to be paid is single, and the consideration is solely for the performance of the whole work contracted to be performed. Whether this entire contract had been substantially performed was a question of fact for the jury. They might well be told that, in determining this question, they need not take into the account any slight or unimportant defect, or one that could be easily remedied by a deduction from the agreed price, as such do not necessarily make it impossible to truthfully declare that an entire contract has been substantially performed; but whether such alleged defects are substantial or unimportant is a question of fact for the jury. Substantial performance of the entire contract is sufficient, and the jury may properly so find. This, however, is not the proposition of the charge as excepted to. The instruction of the court below takes away from the jury the question of fact as to whether there had been a substantial performance of the entire contract, and the subordinate and related one, whether the defect in the woodwork was so slight and trivial as to be immaterial in the consideration of the question of substantial performance, or so serious as to negative a substantial performance of, and thus preclude a recovery upon, the entire contract. The language of the court is:

"In respect to the defective woodwork, such defect would not preclude a recovery upon the contract which included that work, if the contract was otherwise substantially performed."

The question here submitted to the jury was not as to a substantial performance of the entire contract, but whether, with the defective woodwork excluded from consideration, the contract was otherwise substantially performed. By this instruction the court took away from the jury the question of fact, whether there had been a substantial performance of the entire contract, and decided itself that certain deficiencies were not material. The question as to defective woodwork, as we have said, should have been submitted to the jury, to be determined as a part of the general question of substantial performance of the entire contract. This erroneous view of the function of the jury is repeated and emphasized in the affirmance of the plaintiff's fourth request to charge. Such an instruction to a jury could not fail to be prejudicial to the defendant, by depriving him of the right, that was his, to have the jury consider the whole question of substantial performance, including the determination of the fact whether any alleged deficiency was important and material or not. We do not think that the error here pointed out was rendered innocuous by the other portions of the charge, in which the learned judge correctly stated to the jury the law in regard to substantial performance.

It should not be passed without notice that the learned trial judge affirmed defendant's fourth point, as follows:

"No one is obliged to accept defective and improper work, and if new work is so constructed as to be so defective and improper, as not in substantial performance of the contract therefor, the purchaser has a right to refuse to accept the same, and the contractor cannot, after such rejection. patch up or repair such defective and inferior work, and then compel the purchaser to accept the same; neither can he recover the contract price therefor, less the amount necessary to put such defective and improper work in proper condition."

This is a very clear statement of what we think the doctrine applicable to the case in hand to be, and strengthens our confidence in the correctness of the view that we have taken, and, but for the opinion of the court on the motion for a new trial, it would suggest that possibly the view we have criticised was inadvertently taken by the learned judge who charged the jury. However this may be, we are of opinion that error in so vital a point as the one to which we have called attention cannot be passed over as unimportant, by reason of the correct and cogent statements of the law in other portions of the charge. We have carefully examined the authorities and cases cited in behalf of the defendant in error, but can find in none of them sanction for the proposition that, where the question in controversy is whether there has been a substantial performance of a contract, the court can take from the consideration of the jury, by deciding for itself, the question whether an alleged defect is material or immaterial to such substantial performance, or that the question in such case to be submitted to the jury is whether the contract in suit has been otherwise substantially performed, after the question of performance as to a certain portion thereof has been excluded from their consideration.

For the reasons stated, we are compelled to the conclusion that the judgment below should be reversed, and the case remanded, with directions for a new trial.

(113 Fed. 609.)

SHERMAN v. AMERICAN CONGREGATIONAL ASS'N et al.
(Circuit Court of Appeals, First Circuit. January 24, 1902.)

No. 382.

1. EXECUTORS-PRESUMPTION-PLEADING.

Where the bill, in a suit by an heir to recover a sum given as a legacy and alleged to have been wrongfully paid to defendant as legatee, fails to allege that the payment was not made at the time required by the will, or that an annuity on which such legacy was conditioned was not duly paid, there is a presumption that such payment was properly made. 2. WILLS-LEGACIES-PLEADING-CONSTRUCTION.

Where the bill, in a suit involving the construction of a will giving certain property to a beneficiary on condition that the beneficiary should agree to pay an annuity to testator's wife, contains no allegation showing that the annuity is the principal object of the bequest, it will not be held to be either superior or inferior to the other purpose of the legacy.

3. SAME-COURTS-JURISDICTION.

Where the bill, in a suit which involves the construction of a will which was probated in Massachusetts, contains an indirect allegation that all the proceedings referred to have been approved by a Massachusetts probate court, but does not allege that the probate court on its equity side construed the will, it does not show an adjudication which will defeat the jurisdiction of a federal court to construe the will, as a distinction is preserved in Massachusetts between the jurisdiction of the probate court, acting strictly as such, and having no power to construe wills, and its special equity jurisdiction, conferred by statute, to construe such instruments.

4. CHARITABLE CORPORATION-POWERS.

The fact that a religious association has by its charter certain enumerated powers does not bar it from complying with the terms of a legacy requiring it to pay an annuity, when such compliance is only incidental, and tends to the accomplishment of the substantial purposes of its incorporation.

5. WILLS-CONDITION SUBSEQUENT.

Where a will directs the payment of a certain sum to an association on the death of the testator, on condition that the association agrees to pay an annuity, the estate vests in the beneficiary on the death of the testator, when the condition imposed on the beneficiary is a condition subsequent.

6. SAME-CONSTRUCTION OF BEQUEST-CONDITIONS.

A condition in a bequest, requiring the legatee to pay an annuity to the wife of the testator during her life, is shown to be a condition subsequent.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For decision of the circuit court, see 98 Fed. 495.

Roger M. Sherman, for appellant.

Walter Bates Farr (M. F. Dickinson, on the brief), for appellee the American Congregational Ass'n.

Dudley P. Bailey (Ralph W. Foster, on the brief), for appellees Tenney and Cheever.

W. Frederick Kimball (Walter Bates Farr, on the brief), for appellee Burwell.

Before PUTNAM, Circuit Judge, and ALDRICH and LOWELL, District Judges.

PUTNAM, Circuit Judge. This case will be found to concern no question except the construction of the will of Isaac P. Langworthy. It is presented on a demurrer to the bill, which was dismissed in the circuit court. Mr. Langworthy died on January 5, 1888, leaving a widow, Sarah W. Langworthy. She died on April 22, 1893, also leaving a will. The parties made defendants, besides the American Congregational Association, are the executor of the will of Mr. Langworthy and the executors of his widow's will. The complainant claims to hold title under Mrs. Langworthy.

A question is made whether all the parties in interest have been brought into the case; and it is also maintained that the bill should have been brought by the executors of Mrs. Langworthy's will. The first question, if a substantial one, could probably be met by reframing the bill, for which leave would, of course, be granted. Therefore, in view of the conclusion which we have reached, it does not require our attention. As to the second, inasmuch as the bill charges that the executors of the will of Mrs. Langworthy are in collusion with the executor of the will of her husband, so that the case may fall within the usual class entitling a party in interest to proceed without the joinder as a coplaintiff of the person in whom the nominal title vests, it may, perhaps, by amendment, be put in proper form in this respect also, if it is not already.

Mr. Langworthy's will, omitting the formal parts, was as follows: "First. I direct my executors hereinafter named to pay all my just debts and funeral expenses.

"Second. I devise and bequeath to my dearly beloved wife, Sarah W. Langworthy, all of my real and personal estate, wherever the same may be situated, of whatever the same may consist, except as hereinafter provided.

"Third. I direct my executors to pay over to the American Congregational Association, as soon as may be convenient after my decease, the sum of ten thousand dollars (unless previous to my death I shall have deposited said sum with said association), upon condition that said association agrees to pay to my wife, in quarterly payments during her life, the sum of $400, and upon the death of my said wife to pay over semiannually the net income of said $10,000, and any increase thereof, to the library committee of said association; the same to be expended by said committee in the purchase of local histories, genealogies, commentaries of the Bible, and ecclesiastical histories for said library.

"Fourth. I hereby nominate, as executors of this my will, my said wife, Sarah W. Langworthy, and my friends Charles H. Trist and Edward L. Burwell, both of said Chelsea, and request that they, and each of them, may be excused from giving any sureties on their official bonds as such executors."

Although Mr. Langworthy died in January, 1888, and Mrs. Langworthy in April, 1893, the legacy to the American Congregational Association was not paid until April 1, 1898. The bill gives no explanation of the delay, and it charges no one with laches in that connection. It does not even allege when the association was advised of the fact of the legacy, or that it was ever so advised until payment was made to it. It is to be observed that the third clause of the will directed that payment be made as soon as might be convenient. The bill fails to show what was the condition of the estate, and whether, with reasonable efforts on the