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Master Time O Lite __HOT__

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master time o lite

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Hale filed suit against Peabody and Powered seeking to recover for his injuries. Peabody and Powered filed a motion for summary judgment attaching thereto affidavits and a memorandum in support of their position that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. Peabody and Powered asserted that Hale was the employee of an independent contractor, Langley-Morgan, and as such there was no duty running from Peabody and Powered to Hale which could have been breached. Having heard oral argument upon the motion, the trial court found from the pleadings, affidavits and Hale's deposition that neither Peabody or Powered had any supervision or control over Hale's employment, *320 that Hale was not under the power or control of Peabody or Powered and was not subject to their orders or directions in performing his work at the time he was injured, and that neither Peabody or Powered furnished or had any control over the equipment used by Hale. The trial court concluded that there was no duty running from Peabody and Powered to Hale which could have been breached under the circumstances of this case and entered summary judgment.

Hale first asserts that there was a genuine issue of fact as to whether the relationship between Peabody and Powered was that of master-servant. Hale argues that under the contracts, Peabody and Powered retained sufficient control over Langley-Morgan's work to render them liable for Langley-Morgan's negligence.

If an employer retains sufficient right to control the work, the relationship of master-servant arises to render the employer vicariously liable for the negligence of the servant under the doctrine of respondeat superior. State v. Gibbs (1975), Ind. App., 336 N.E.2d 703; Gibbs v. Miller (1972), Ind. App., 283 N.E.2d 592.

Hales relies upon several specific provisions of the contracts between the parties in an attempt to establish that a master-servant relationship existed. However, as further stated in Prest-O-Lite Company v. Skeel, supra:

When viewed as a whole, the contracts between Peabody and Powered and Langley-Morgan are subject to only one reasonable interpretation, that Peabody and Powered retained only a general supervisory control over what was done and not the specific means or manner of performance. Hale failed to present specific facts to show that he was under the power and control of Peabody or Powered at the time he sustained his injuries a critical fact in the existence of a master-servant relationship. Marion Shoe Company v. Eppley, supra.

Evidence, Of agreements while litigation is pending, Inferences. Contract, Validity, Rescission. Equity Pleading and Practice, Bill, Amendment, Supplemental bill, Report: inferences from facts found by master. Mortgage.

appealed. Pending the determination of the appeal, the plaintiff and the defendant made a new contract containing provisions for new financial arrangements between the parties, and also a fifth provision that, if, as a result of the appeal, "a new trial is had," neither party should "be allowed to put in evidence on any matters occurring subsequent to the former trial" and a sixth provision that, if the final decree after rescript should affirm the decree appealed from or should modify that decree to the extent that the defendant should have full or partial rights under his mortgage, he should retain such rights as security for the new agreement which had been made between himself and the third party. The rescript directed that the defendant should not foreclose the mortgage until he had applied upon the debt owed him by the third party the proceeds from certain other securities furnished him by the third party. The bill then was amended to include allegations as to the new financial arrangements and claims of further credits by the plaintiff, and the case was referred to a master. Held, that

(3) The amount due to the defendant from the plaintiff was to be determined as of the final stating of the account, and was not limited to the condition of the account at the time the suit was instituted.

The new agreement between the defendant and the third party, referred to in the agreement made pendente lite between the plaintiff and the defendant as above described, fixed the indebtedness of the third person to the defendant at $10,000. The amount of that indebtedness in fact was $8,000. If the plaintiff was bound by the agreement between himself and the defendant made pendente lite, he was bound by the statement of the amount of the indebtedness. He contended that he was induced to execute the agreement through fraud of the defendant. Held, that such a contention was open to the plaintiff under the prayers of the bill without the institution of a separate suit to set aside the agreement or an amendment in the nature of a supplemental bill.

Upon a report and reservation of a suit in equity by a judge of the Superior Court after the confirmation of a master's report, without a further finding of facts or drawing of inferences by the judge, this court has power to make such supplementary inferences of fact as are justified by the findings of the master.

It appeared that, before the plaintiff made the agreement with the defendant pendente lite, above described, he made efforts to see the books and accounts of the defendant for the purpose of ascertaining the amount then due from the third person to the defendant, but that the defendant represented to him that the indebtedness had been carefully computed and that the account stated in the new agreement with the third party was correct, and that he prevented the plaintiff from making an examination to ascertain whether the statement was correct. There were material errors in the computations. The defendant did not intend to defraud the plaintiff. Held, that, since the representation made by the defendant was of facts as of his own knowledge, was false and was believed and relied on by the plaintiff in making the agreement pendente lite, the plaintiff was not bound by that agreement nor by any provisions of the new agreement between the defendant and the third party.

The case previously was before this court and a decision was made, which is reported in 212 Mass. 344. Proceedings following that decision are described in the opinion. The report of a master to whom the case then was referred was confirmed by Chase, J., who reserved and reported the case, without further findings, for determination by this court.

The admissibility of this agreement is open under the master's report, - the plaintiff contending that, under the paragraph first quoted, it should not be considered, and the defendant contending that the proceedings, since the prior rescript, have been under the paragraph last quoted, which contention is adopted, with the result that said agreement is properly in the case, the restriction as to its use under the first of these paragraphs being inapplicable. In any event, the plaintiff's bill is in the nature of a proceeding for an accounting to determine the amount, if any, for which the defendant is entitled to hold the security given him by the plaintiff; and the plaintiff is not limited to the condition of the account at the time the suit was instituted, and the amount due is to be determined as of the final stating of the account. Ensign v. Faxon, 229 Mass. 231.

The contention of fraud is twofold. The first misrepresentation claimed relates to the rate of interest charged, which is fixed in the agreement at ten per cent, although a secret collateral agreement was made in effect making the rate twelve per cent. It already has been decided that the defendant's right to hold the plaintiff's mortgage had not been lost by reason of an understanding between the parties increasing the rate of interest; but the security cannot be surcharged by reason of the change. Bearse v. Lebowich, supra. See also Cambridge Savings Bank v. Hyde, 131 Mass. 77; Boutelle v. Carpenter, 182 Mass. 417. It is not necessary to pass upon this contention in view of our conclusions as to other features of the case. The second misrepresentation charged relates to the amount of the indebtedness. The case is here on report from a justice of the Superior Court, who made no findings of inferential facts based upon the master's findings, and who entered no decree. This court has the power to make such supplementary inferences of fact as may be justified by the findings of the master. Fairbanks v. McDonald, 219 Mass. 291. Rioux v. Cronin, 222 Mass. 131. Reardon v. Reardon, 225 Mass. 255. The master found that

It is not necessary to consider the effect of this representation except as it relates to the amount for which the defendant is entitled to hold the plaintiff's mortgage, and Winsor v. Mills, 157 Mass. 362, even if in any way pertinent, is not within the intendment of this decision. The plaintiff does not base the relief sought on this agreement, and the defendant has the benefit of all the provisions of his original contract with the plaintiff and therefore is in "a legal sense put in statu quo." Long v. Athol, 196 Mass. 497, 506. O'Shea v. Vaughn, supra. Putnam v. Bolster, 216 Mass. 367. Blodgett v. Ahern, 217 Mass. 262. There is nothing in the master's report upon which an argument of ratification properly can be based.

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