Volume 82 — Connecticut Reports

<p>General Statutes, § 2039, as amended by Chap. 4 of the Public Acts of 1903, provides that any traveler on a highway who is prevented from crossing a railroad for more than five minutes by reason of trains, cars or locomotives “standing upon or across such highway,” may recover $25 and costs from the railroad company. Held:—</p> <p>1. That in view of all the legislation in respect to the obstruction of highways by railroad trains, it was apparent that two evils were aimed at: one, an obstruction by standing cars or trains, covered by the statute in question, and the other an obstruction by cars or trains in motion.</p> <p>2. That inasmuch as it appeared in the present case that the cars were not “standing” on the highway for more than five minutes, but were being switched back and forth thereon, the plaintiff could not recover under this statute.</p> <p>3. That the statute approached closely to the field of penal legislation, and must be considered with reasonable strictness and not so as to extend its operation beyond what was called for by the ordinary import of its terms.</p> <p>It is within the power of the legislature, in cases of this nature, to fix an arbitrary sum as the measure of recovery, provided only that it be not unreasonably great.</p> <p>A motion to consolidate several pending cases for the same cause of action, is addressed to the discretion of the trial court, and its exercise of that discretion will not be reversed on appeal except for manifest abuse.</p> <p>In the present case the ground of such a motion involved construction of a statute and invited the consideration of a question of constitutional law. Held that the trial court acted well within its discretion in declining to pass upon matters of such importance on such a motion.</p> <p>The defendant contended that only one, indivisible penalty could be recovered under the statute for one offense, and that all persons aggrieved must join in the action therefor. Held that if it were true that S25 and costs was the extent of the defendant’s liability, there was no reason why the plaintiff, upon proper proof, should not recover that sum, since his action was the first to be brought to a final hearing, and the law favored the vigilant.</p> <p>A defendant who desires to set up the pendency of other like actions to defeat that of the plaintiff, should do so by plea in abatement. Such a defense cannot be made by answer.</p> <p>A passenger in a street-car is as much a traveler on the highway as if he rode in any other vehicle.</p> <p>The amount of a bond for prosecution is a matter within the discretion of the trial court.</p>

<p>The directors of a bank are bound to exercise a reasonable oversight and supervision of its officers and employees. If they neglect this duty and virtually placé the entire management in the hands of the cashier, thus enabling him, by the use of the machinery and organization of the bank, to repeatedly misappropriate the fundS* of an estate of which he is administrator, the mere fact that they ■ did not have actual knowledge of his fraudulent operations is of** no avail in a suit by the estate against the bank to recover the sums so misappropriated. Negligent ignorance under such circumstances is as effective in law as actual knowledge.</p> <p>One Layton, the cashier and managing officer of the defendant bank, was the financial director of a foundry company whose credit he was personally interested in supporting. He was also the administrator of an estate the funds of which he deposited in its name in his bank, and which, by means of checks thereon payable to his order as cashier and indorsed by him as such, he used in taking up substantially worthless checks and notes of the foundry company which the teller, and the bookkeeper while acting temporarily as teller, had paid as they were presented at the bank, and had carried on the teller’s blotter as cash items, pursuant to the orders of the cashier. This course of procedure was followed from , time to time for more than a year until the funds of the estate”# had been largely depleted, and was taken with full knowledge by» the teller and bookkeeper of all the facts. In a suit by the estate » against the bank, to recover the funds so misappropriated, it was ' held:—</p> <p>1. That such use of fiduciary funds was a fraud upon the estate enuring to the benefit of the bank, in which the bank by reason of the knowledge of its teller and bookkeeper participated, and therefore equity and good conscience would not permit the bank to retain the money so acquired as against the claim of the plaintiff.</p> <p>2. That in sanctioning the plaintiff’s recovery under such circumstances it was not necessary, at least in respect to certain items, to impute notice to the bank by reason of the knowledge of the cashier, nor to resort to any constructive knowledge on its part because of the negligence of the directors in their oversight of the affairs of the bank, as found by the trial court.</p> <p>3. That in view of the culpable negligence of the directors who had virtually surrendered to the cashier the performance of their duties of supervision and oversight, by the reasonable exercise of which they would have acquired knowledge of his irregularities, the bank had become an active participant in the misappropriations of its cashier, and was therefore liable for the further amount of $5,000 of the funds of the estate, which the administrator drew on two checks payable to his own order as administrator, and which, having been indorsed by him as such, were given to the teller to take up two worthless notes of the foundry company which had been sent to the bank for collection.</p> <p>4. That the bank was also liable, upon the same grounds, for a further sum of $13,000 which the administrator transferred from the funds of the estate into his own personal “special account,” and afterward used to take up certified checks of his as cashier, the avails of which had been used in the interest of the foundry company.</p> <p>5. That the knowledge of Layton in respect to another item of $10,000 —which he withdrew from the funds of the estate and deposited in another bank, receiving therefrom a certificate of deposit which he indorsed and deposited in his own bank to the credit of his “special account” and subsequently appropriated to his own uses — was his knowledge as cashier and therefore affected the bank and rendered it liable for that amount also.</p> <p>6. That the bank was not liable for an item of $2,000 drawn by the administrator on a cheek payable to his own personal order, in the absence of any evidence that the sum so withdrawn was used for improper purposes; since such check was not irregular on its face and the bank was not bound to see that the money was rightly appropriated.</p> <p>7. That interest was properly allowed from the date the deposit was demanded and its payment wrongfully refused.</p> <p>While a bank is not obliged to supervise a trust account therein, or look to the appropriation of such funds when withdrawn, it may not actively and knowingly participate in their misappropriation. It may not become an active co-operating agency to that end and thereby directly contribute to the consummation of the wrong.</p>

Action by the indorsee against the acceptor of four bills of exchange, brought to the District Court of Waterbury and tried to the jury before Peck, Acting-Judge; verdict and judgment for the defendant, and appeal by the plaintiff.

Action by the indorsee of three bills of exchange against the acceptor, brought to the District Court of Waterbury and tried to the jury before Peck, Acting-Judge; verdict and judgment for the defendant, and appeal by the plaintiff.

Action to secure the delivery and transfer of trust funds to the plaintiff as the defendant Downs' successor of a testamentary trust, brought to the Superior Court in Fairfield County where a demurrer to the second defense was sustained (Reed, J.) and the cause was afterward tried to the court, Robinson, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant Downs.

, confirming the action of a municipal board of the defendant city in dismissing the plaintiff from its police department.

Action to recover damages for negligence resulting in the death of the plaintiff's intestate, brought to the District Court of Waterbury, transferred to the Superior Court in New Haven County and tried to the jury before Bennett, J.; upon motion of the defendants the trial court nonsuited the plaintiff; and from its refusal to set aside such judgment the plaintiff appealed.

Action to recover interest on an award of damages for the taking of land by the defendant for highway purposes, brought to the Superior Court in New Haven County and tried to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiffs for $293, from which they appealed.

Indictment for murder in the first degree, brought to the Superior Court in Hartford County and tried to the jury before Case, Jverdict and judgment of guilty, and appeal by each of the accused.

Action to recover damages for an injury to the plaintiff’s horse which was alleged to have been caused by the negligence of the defendant in the management of his automobile, brought to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J.; verdict for the plaintiff which the trial judge set aside as against the evidence, from which ruling the plaintiff appealed.

Action for the specific performance of a contract to indorse a guaranty on certain certificates of stock, brought to the Superior Court in New Haven County. The railroad company filed a demurrer, and the other defendants answered, admitting the truth of the complaint. Judgment on these pleadings (Reed, J.) for the plaintiffs, and appeal by the railroad company.

<p>In testing the legal sufficiency of a complaint on demurrer, this court is limited to and controlled by the information which the complaint itself affords, and cannot utilize extrinsic facts which the parties seek to import into the case by way of stipulation.</p> <p>A member of a fraternal benefit society who seeks to obtain an accounting of its funds and a judgment for the amount found due thereon, must allege the terms of his contract, which of necessity determine the respective rights and obligations of the partios. In the absence of such an allegation the court is left entirely in the dark upon that vital point of the case and cannot do otherwise than sustain a demurrer to the complaint.</p>

Suit to secure the cancellation of certain deeds, alleged to be invalid, or, if they were of any validity, then to obtain a foreclosure of a mortgage held by the plaintiff, brought to and tried by the Superior Court in Hartford County, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Information for keeping a house of ill-fame, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment of guilty, and appeal by the accused.

Action to recover damages for breach of contract to deliver two car-loads of lumber, brought to the District Court of Waterbury and tried to the jury before Beasley, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Action in the nature of quo warranto to determine the title of the respondent to the office of school committeeman of the city of New Britain, brought to and tried by the Superior Court in Hartford County, Robinson, J., upon the plaintiff’s demurrer' to the respondent’s plea; the court sustained the demurrer and rendered judgment of ouster against the respondent, from which he appealed.

Action to recover for work and labor and materials furnished in rebuilding the defendant’s foundation wall and in shoring up his building adjoining the land upon which the plaintiff, a mason and contractor, was excavating preparatory to erecting a building for a third person, brought to and reserved by the Court of Common Pleas in New Haven County, Wolfe, J., upon an agreed statement of facts, for the advice of this court.

Applications for an order requiring a statement of the evidence, under General Statutes, § 762, in a case dismissed by the Superior Court in New Haven County by a judgment of nonsuit, under General Statutes, § 761, and for an order directing the judge of that court, who refused to make such statement, to show cause why he should not state it, or so much of it as might be necessary to enable her to prosecute her appeal.

<p>Appeal from an order of the railroad commissioners, taken to the Superior Court in Fairfield County. The court (Gager, J.) granted a motion to dismiss the appeal, on the ground that the appellant had no right to take one.</p> <p>The order of the commissioners was passed on a petition of the appellee stating this case: — ■</p> <p>It operates a railroad from Bethel to Hawleyville, in the towns of Bethel and Newtown, formerly known as the Bethel Branch, on which there are sixteen grade-crossings of highways, a description of each of which was given.</p> <p>It is proposed to eliminate these “ by discontinuing, except as hereinafter set forth, the use of said line of railroad of said Bethel Branch . . . from a point on the main track of the line of railroad . . . lately known as the Danbury Branch . . . southerly of . . . Greenwood Avenue in the town of Bethel, thence running northeasterly about . . . 31,400 feet ... to its intersection with the main line of the raikoad . . . lately known as its Berkshire Division, at or near the Hawleyville passenger station, . . . and substituting therefor a new line of railroad coincident with and on the line and location formerly of . . . the Danbury Branch . . . beginning at said point . . . just southerly of Greenwood Avenue, . . . thence on and along the line of railroad and location of said Danbury Branch to the Dan-bury passenger station ... in the city and town of Dan-bury, to a connection with ... its Western Division; thence on and along the line and location of said last mentioned railroad ... to the . . . Hawleyville station, . . . to a connection with the existing line of railroad . . . lately known as the Litchfield Branch.</p> <p>“It is further proposed to use portions of said discontinued line of railroad at either end thereof, as a commercial spur track for the service of certain commercial industries on said line, one located substantially two miles southerly of said Hawleyville station, and one other substantially a half of a mile northerly of said Bethel station, by the installation and construction of a spur track to said industries from the station nearest to the same, subject to the approval of yoúr Board, upon application and hearing as provided by law.”</p> <p>The commissioners ordered notice of the hearing on this petition to be given to the appellee and the selectmen of the towns of Newtown and Bethel. This was duly given, and the order appealed from recited that on the day named, “the petitioner appeared to prosecute its petition, and the towns of Bethel and Newtown appeared by their selectmen and counsel,, and the Bethel and Redding Lime Company also appeared, and said parties were fully and finally heard on said last mentioned date.”</p> <p>The order proceeded as follows:—</p> <p>“This is an application for the elimination of sixteen grade-crossings, in the distance of six miles, on the line of the Bethel Branch, so-called, of the railroad of the petitioner, extending from the Bethel station, in the town of Bethel, to the Hawleyville station, in the town of Newtown, by discontinuing the use of the Bethel Branch, and transferring its traffic to the main line of the Danbury Branch from Bethel to Danbury, and from Danbury to Hawleyville, over the double track of the New England Railroad Company, leased to the petitioner.</p> <p>“Upon careful consideration of the evidence, and from our personal knowledge of the locality affected by the proposed changes, we are of opinion that public safety requires that the grade crossings specified in the petition be eliminated and in the manner proposed. Owing to the relatively little importance of this branch, it is unlikely that the petitioner will ever be able to assume the énormous expense of eliminating these crossings by separating the grades of the railroad and the highways, and it is more unlikely that the towns in which the crossings are located could ever assume their statutory share of the expense.which would fall on them in proceedings initiated by them for the removal of these crossings.</p> <p>“The traffic now passing over the steep grades and sharp curves of the Bethel Branch, can be more safely conducted over the easy grades and curves of the proposed route. There being no stations on the line between Bethel and Hawleyville, no inconvenience to passengers or communities can arise by reason of the change of route, and the three industries located on the present line can be served by spur tracks, safe-guarded when used at highway crossings both by regulation, regulations as to speed, and by flagmen.</p> <p>“The rates for service over the new route are to be the same as now prevail over the present line, while the passage of all traffic into and through Danbury, a city of twenty thousand inhabitants, will furnish additional convenience to that city without in any manner depriving the inhabitants of Bethel and Hawleyville of any advantages which they now possess. It is difficult, therefore, to see how any interest, public or private, can be injured by the changes proposed, but, be that as it may, the safety of the public to be conserved by the doing away with the dangers of these sixteen grade crossings to be thus eliminated, far outweighs any disadvantage which may occur to any private interest.</p> <p>“Wherefore, after consideration, we do find the allegations of said petition to be true, and determine that the alterations and changes described in said petition shall be made by The New York, New Haven & Hartford Railroad Company, and at its expense, to wit, that the use as a railroad of the line of railroad known as the Bethel Branch,” (here followed a description of the proposed changes substantially identical with that stated as proposed in the petition), “ so as to eliminate the crossings at grade of said railroad by the several highways in said towns named and described in the following list:” (here followed a description of the sixteen grade-crossings, also copied from the petition).</p>

Action by an administratrix for damages for negligence causing the death of her intestate, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J. At the close of the plaintiff’s evidence a non-suit was granted, under General Statutes, § 761, and a motion to set it aside was afterward denied.

Action to recover damages for the alleged wrongful expulsion of the plaintiff from the defendant mutual benefit society, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J., upon a plea or answer of res judicata; the court sustained the plea and rendered judgment for the defendant, from which the plaintiff appealed.

Action to foreclose two mortgages of real estate, brought to the Superior Court in New Haven County where demurrers to the second count of the complaint were overruled (Roraback, J.) and the cause was afterward tried to the court, Robinson, J.; facts found and judgment rendered for the plaintiff, from which the defendant Foster appealed. The plaintiff seeks the foreclosure of two mortgages, which he holds by assignment from the mortgagees.

Action to enforce an order of injunction, previously granted, restraining the defendant from polluting a stream flowing through the dairy farm of the plaintiff, and also to enjoin the defendant from further attempts to take the plaintiff’s land by condemnation, brought to the Superior Court in New Haven County where a demurrer to the prayers for relief and to the supplemental complaint was sustained (Reed, J.) and judgment rendered for the defendant, from which the plaintiff…

Suit to determine the validity and construction of the will of Henry T. Bulkley, late of Fairfield, deceased, brought to and reserved by the Superior Court in Fairfield County, Gager, J., upon an agreed statement of facts, for the advice of this court. Henry T. Bulkley died October 28th, 1881, leaving a widow, but no issue, and an estate, which, after the payment of all debts and charges, amounted, upon the basis of the inventory, to $111,258.23.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and tried to the jury before Ralph Wheeler, J.; verdict for $4,000 damages, which the plaintiff, upon an intimation from the trial judge, reduced to $2,500 in order to avoid its being set aside, from the judgment on which the defendant appealed.

<p>Action in the nature of debt on judgment, brought to the City Court of New Haven and tried to the jury before Tyner, J.; verdict and judgment for the plaintiff, and appeal by the defendant.</p>

Reservation by the Superior Court in New Haven County, George W. Wheeler, J., in receivership proceedings, for the advice of this court as to whether certain claims presented against the estate of the defendant and heard by a committee should be allowed or disallowed.

<p>Action by executors for a judicial construction of the will of Henry D. Wheeler, deceased, brought to the Superior Court in New London County and heard before Ralph Wheeler, J.; judgment was rendered giving it a certain construction, from which certain of the defendants appealed.</p>

Suit to construe the will of David A. Billings of Norwich, deceased, brought to- and reserved by the Superior Court in New London County, Curtis, J., upon the facts stated in the complaint, for the advice of this court.

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to the Superior Court in New London County and tried to the jury before Curtis, Jverdict and judgment for the plaintiff for $500, and appeal by the defendant.

Action upon a judgment by the assignee thereof, brought to and tried by the Superior Court in New Haven County, Reed, J.; facts found and judgment rendered for the plaintiffs for $788, and appeal by the defendant. The questions presented by the demurrers are not materially different from those raised upon the trial of the issues of fact.

Information charging the defendant and an unknown man with carnally knowing and abusing a female under the age of sixteen years, brought to the Superior Court in New London County and tried to the jury before Ralph Wheeler, Jverdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court.

Action to recover for mill supplies alleged to have been sold to the defendant, brought to and tried by the Superior Court in Windham County, Ralph Wheeler, Jfacts found and judgment rendered for the plaintiff for'$2,122, and appeal by the defendant. The court found these facts: The defendant is a corporation engaged in the manufacture of cloth.

Action to recover money claimed to have been paid by mistake, brought to and tried by the Superior Court in Hartford County, Shumway, Jfacts found and judgment rendered for the defendant, and appeal by the plaintiff. The defendant, a dealer in cotton in Hartford, bought of one Bandy, a cotton broker in Monroe, Louisiana, some cotton.

Information for unlawfully charging interest on loans made by the accused at a greater rate than fifteen per cent per annum, brought to the Superior Court in Hartford County where a demurrer was overruled and the cause was afterward tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty, and appeal by the accused.

Action to recover damages for personal injuries alleged to have been due to the defendant’s negligence, brought to the Superior Court in New Haven County where the plaintiff was nonsuited in a trial to the jury before Ralph Wheeler, J., and from the refusal of the trial judge to set aside such judgment the plaintiff appealed. The plaintiff was an employee of the defendant and operated an automatic drop-lifter.

<p>Suit to determine the validity and amount of claims held by the respondents, either as mortgagees or as mechanics and materialmen holding liens against land of the plaintiff on which was a partially-constructed dwelling-house, and to adjust and settle the equities of the respective defendants in and to any sum which might be found to be due therefor, brought to and tried by the Superior Court in New Haven County, Ralph Wheeler, J.; facts found and judgment rendered upholding the claims of mechanics and material-men, from which the plaintiff and two mortgagees appealed. Error and cause remanded.</p> <p>The plaintiff, on June 5th, 1907, entered into a written contract with Moore to build a house upon a lot then owned by her in New Haven. At the time the contract was signed she gave him two notes, together amounting to $3,945, the contract price for the house. One of the notes was for $3,400, the other for $545, each payable on demand to his order, the larger note being at five per cent, interest and the smaller at six per cent., and each secured by a mortgage on the lot, that securing the larger note being the second mortgage. The contract recited that these two mortgages were given in consideration of the house being built by Moore and to compensate him therefor. The contract was the only consideration for the notes. Moore then contracted with different parties for the mason, carpenter and plumbing work upon the house, and for the lumber required in its construction. These parties began to furnish labor and materials in constructing the building, and are parties to this action as claimants for mechanics’ liens. After this work was begun and before August 9th, 1907, the W. T. Fields Company, at the request of Moore, agreed with him to make a loan of $3,000 at six per cent, to be secured by a first mortgage upon the plaintiff’s property when the building should be completed, the money to be advanced as the work progressed, $1,000 when the house was roofed in, $1,000 when it was plastered, and $1,000 when it was fully completed. Moore caused to be prepared a note for $3,000 at six per cent, payable to the W. T. Fields Company, and a mortgage upon the plaintiff’s lot to secure the same; another note to his own order on demand for $945 at five per cent., with a second mortgage on the plaintiff’s lot to secure it; and releases of the mortgages which had been given him to secure the first two notes. He then informed the plaintiff that the original papers were,wrong and would have to be changed, and that he had to have six per cent. On August 14th,1907, she, at his request, went to the offices of the conveyancers whom he had employed to prepare the papers, and there executed the new notes and mortgages, and Moore, and the defendant Hall who had become the owner of the $545 note, executed the releases of the former mortgages; and the conveyancers, on August 14th, caused the papers to be recorded in the proper order. The house was at this time roofed in and the first payment from the W. T. Fields Company was due, and they paid $940 to the conveyancers, retaining, with the knowledge and consent of the plaintiff, $60 as commission. The conveyancers, by order of Moore, paid Hall the amount due upon the note for $545, paid $18 for insurance and $18.10 for the expense of the preparation and recording of the conveyances, and the balance to Moore. The plaintiff had knowledge of these payments, and at the time was informed that the Fields Company would pay $1,000 more when the house was plastered, and another $1,000 when the house was completed, and assented to the arrangement. The Fields Company, on August 23d, without the knowledge of the plaintiff, paid Moore $100. She understood and believed that she would not become liable on the note for $945 unless and until the house was completed, and Moore knew this,</p> <p>At the time of this transaction the parties all knew that material and labor was being furnished in the construction of the house, but none except Moore knew by whom. On August 31st Moore transferred, for a valuable consideration, the note for $945, and assigned the mortgage securing the same to the defendant Hall. The court found that Hall took the mortgage knowing that the house was not completed and that the plaintiff had received no consideration for the note except the contract with Moore, and knew of the equities existing between Moore and the other parties, and was not an innocent purchaser for value.</p> <p>On or about September 19th, 1907, Moore abandoned his contract, left town, and has not been heard from since. At or about the same time the subcontractors abandoned the work, gave notice of their liens and filed liens on the plaintiff’s property. Moore’s failure to complete his contract was not due to the fault of the plaintiff. There is nothing due to him from her.</p> <p>The amount which would have been required to complete the house at the time of its abandonment would not have been less than $2,200. The cost and value of the work and materials which have gone into it is $1,854.65.</p> <p>All the defendants filed answers claiming hens, the W. T. Fields Company and Hall by virtue of mortgages, and the subcontractors for their work and materials as mechanics and materialmen, and asked for the foreclosure of the same.</p> <p>The court held that the subcontractors had hens to the full amount of the labor and materials furnished by them in the construction of the building to the time when they abandoned it, and that their hens had priority over the mortgage of the W. T. Fields Company; that there was due to the W. T. Fields Company upon their mortgage $1,000 only, and that nothing was due to the defendant Hall upon the mortgage for $945.</p>

Action to recover a balance claimed to be due for services rendered and materials furnished in the construction of a building, brought to and tried by the District Court of Waterbury, Peasley, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants.

<p>In the absence of facts showing that irreparable injury will result to the landowner, an injunction to restrain a city from moving buildings upon land which the municipality claimed to have taken for the layout of a street, may well be refused if, as.in the present case, the validity of the assessment of damages for such taking can be determined upon an action at law by the landowner, either to recover the amount of damages awarded him, or for trespass for entering upon his land before having paid him therefor.</p>

<p>During the cross-examination of the last of several boys called as witnesses for the plaintiff, all of whom had cried during such examination, the plaintiff’s attorney remarked to the defendants’ counsel that the latter had made every boy cry in an effort to get him to lie, whereupon a juror responded, audibly, “That’s right.” Counsel for the defendants at once protested against such remarks, and during the temporary retirement of the jury moved that they be discharged from the further consideration of the case. Held, upon a verdict for the plaintiff, that the denial of this motion, followed by the failure, of the trial court either to rebuke the plaintiff’s attorney and juror, or to do anything else to overcome the effect of these improper observations, constituted reversible error.</p> <p>In an action for personal injuries a plaintiff is not entitled to recover for loss of his business, unless such special damage is distinctly alleged and proved.</p> <p>An instruction, in such an action, that if the plaintiff was not careless but was injured by the independent act of the defendants’ servant, he would be entitled to recover, is erroneous, since it ignores other elements of liability which the plaintiff is bound to prove.</p> <p>If a plaintiff’s violation of a city ordinance essentially contributes to his injury he cannot recover.</p> <p>Conduct of the alleged negligent agent or servant of the defendants after the accident relates to a past event and is inadmissible in evidence as a part of the res gesta.</p>

Earnest C. Simpson, a judge of the Court of Common Pleas in New Haven County;' facts found and judgment rendered for the defendant, from which the plaintiff appealed.

Action to recover a tax alleged to have been unlawfully exacted by the defendant and to have been paid under compulsion by the plaintiffs, brought originally before a justice of the peace and thence, by the defendant’s appeal, to the Superior Court in Windham County and tried to the court, George W. Wheeler, J., upon demurrer to the complaint ; the court sustained the demurrer and rendered judgment for the defendant, from which the plaintiffs appealed.

Action by a servant to recover damages for personal injuries alleged to have been caused by the defendant's negligence, brought to the Superior Court in Windham County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.

Action to recover for alleged extra plumbing work and material, brought to and tried by the Superior Court in Hartford County, Shumway, J.; facts found and judgment rendered for the plaintiffs, from which the defendant appealed.

<p>Action to restrain the defendants from maintaining a “spite fence” between their premises and the plaintiff’s, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.</p>

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servant in the operation of an automobile, brought to the Superior Court in New Haven County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $1,500, and appeal by the defendant.

Suit for the specific performance of a contract to purchase real estate, or, in lieu thereof,' 810,000 damages, brought to the Superior Court in New Haven County, where, on a trial to the jury, the plaintiffs were nonsuited (Case, J.), and from the refusal to set aside such judgment they appealed.

Suit by the trustee in bankruptcy of a building contractor, to determine the validity of several mechanics’ liens and the amount due thereon respectively, and to recover an alleged balance from the… Held: among other things, that the Mansfield lien was valid, and that the amount of it, 8869.15, should, with other sustained.liens and claims, be deducted from the indebtedness of VonBeren to Humphrey, and the balance of 830.12 paid to the plaintiff.

Action on probate bonds to recover damages for the failure of one of the defendants, as administratrix, to turn over to the plaintiff a distributive share of an estate to which she claimed to be entitled, brought to the Superior Court in New Haven County and tried to the court, Bennett, J., upon demurrers to the answers; the court sustained one demurrer and overruled the others, and rendered judgment accordingly (Shumway, J.), from which all parties other than the defendant…

Action of interpleader to determine the rights of the respective respondents in and to a death-benefit fund of $2,000, brought to and tried by the Superior Court in New Haven County, Reed, J.; facts found and judgment rendered in favor of the respondent Mary A. Hines, from which the respondent Charles F. Hine appealed.

Information for wilfully interrupting and disturbing the board of aldermen of the city of New Haven when met for a lawful purpose, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment of guilty, and appeal by the accused.

Action to recover damages for the alleged wrongful rejection by the defendant, as moderator of a voting district, of a ballot cast by the plaintiff, brought to and tried by the Superior Court in New Haven County upon a demurrer to the complaint; the court, Shumway, J., sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed.

<p>Prom the rendition of services and their voluntary acceptance the law will ordinarily imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, no such implication arises. In order to recover for such services the plaintiff must affirmatively show either an express contract to pay, or that the circumstances under which they were rendered were such as give rise to a reasonable and proper expectation that there would be compensation.</p>

Action on two negotiable bonds, brought to the Superior Court in Hartford County and tried to the jury before Robinson, J.; verdict and judgment for the defendant.

<p>The' complaint alleged that the defendants’ testatrix had agreed to pay the plaintiff $5,000 additional compensation if she would continue in the testatrix’s employ until the latter’s death; while the agreement proved was that the plaintiff was to continue her services during the lives of the testatrix and her sister, which she did in fact. So far as appeared, no question of variance was raised in the trial court, either upon the admission of evidence or upon requests to charge the jury. Held:—</p> <p>1. That the discrepancy did not amount to a total failure of proof of the alleged cause of action.</p> <p>2. That had the question been raised, the defect might have been cured by amendment during the trial.</p> <p>3. That inasmuch as the real agreement was not a matter of dispute, the question whether it materially varied from that set forth in the complaint was one of law for the court.</p> <p>4. That if the jury, without disregarding the instructions of the court, based its verdict on undisputed facts variant from those alleged in the complaint, the fault was not theirs, and a motion for a new trial for a verdict against evidence was not a proper remedy for the variance.</p> <p>A party must specify wherein a claimed variance exists, so as to bring the attention of the trial court to the precise matter on which its decision is asked; otherwise the claim cannot be made the basis of an appeal.</p> <p>The evidence reviewed and held sufficient to warrant its submission to the jury, under proper instructions, to determine whether the $5,000 was intended as a gift, or as compensation for services.</p> <p>Instructions which perhaps might be open to criticism by the defendant if they stood alone, are to be read and interpreted in connection with the rest of the charge clearly stating and limiting the grounds on which the plaintiff might recover.</p>

Action by an inhabitant of Connecticut, brought to the Superior Court in New London County, against the New York, New Haven and Hartford Railroad Company, described as a corporation organized under the laws of Connecticut, for an injury received by him while acting as a train-hand on its railroad at Auburn in Massachusetts.

Action for personal injuries to the plaintiff while employed as a fireman on a railroad train running between States, brought to- the -Superior Court in New London County and heard on demurrer by Ralph Wheeler, J.; demurrer sustained and judgment for defendant.

<p>Plea in Abatement and motion to erase an appeal to this court taken by the defendant.</p>

<p>Where the literal fulfillment of the condition upon which a pecuniary legacy is given is rendered impossible, after the testator’s death, by act of law, the right of the legatee to receive and retain the legacy is not affected.</p> <p>In the present case a legacy of 812,000 was given to a church “for use in building a Sunday-school room and for such other improvements as may be needed” on certain land which the testatrix had also given to the church. Pending the settlement of the estate the land was taken for public use by condemnation proceedings. Held that the inability of the church, from this cause, to strictly perform the conditions of the gift (if they were such) by expending the money in precisely the manner stated in the will, did not relieve the executors from the duty of paying the legacy, nor furnish ground for a claim of forfeiture or breach of trust after its payment. Hnder such circumstances the law will treat the amount awarded as damages, on the condemnation proceedings, as standing in the place and stead of the land so taken.</p> <p>A plaintiff in condemnation proceedings cannot be required to pay more than the market value of the property.</p> <p>Interest on the amount awarded will run from the date on which the committee’s report is filed.</p> <p>Whether a committee appointed to assess damages for land taken by a county under General Statutes, § 4107, ought not to report one unconditional assessment of a certain amount, instead of two conditional assessments of different sums, qucere.</p>

Action to recover moneys paid to the defendant on a contract to sell real estate, brought by appeal from a judgment of a justice of the peace to the Court of Common Pleas in Fairfield County and tried to the court, Scott, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Pleas in abatement by the plaintiff to appeals taken to this court from the Superior Court in New Haven County, heard upon demurrers to the pleas.

<p>Appeal from the refusal of the- clerk to tax costs in favor of the defendant.</p>

Action for damage to trees by escaping gas, brought to the Superior Court in Hartford County and tried to the jury before Robinson, J., by whose direction a verdict was rendered for the defendant, and judgment entered thereon.

Information in the nature of quo warranto to determine the respondent’s title to the office of deputy building inspector of the city of Waterbury, brought to and tried by the Superior Court in New Haven County, George W. Wheeler, J.; facts found and judgment of ouster rendered against the respondent, from which he appealed.

<p>Action to recover damages for injuries to person and property, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Hartford County and tried to the jury before Robinson, J.; judgment of nonsuit, and appeal by the plaintiff.</p>

■ Action in the nature of an appeal from the refusal of the board of relief of the city of Hartford to strike out a cash item of $291,151 from the tax list of the plaintiffs, brought to the Superior Court in Hartford County and tried to the court, Bennett, J., upon a demurrer to the complaint; the court overruled the demurrer and rendered judgment for the plaintiffs, from which the defendants appealed.

<p>Action to recover rent, brought to and tried by the • City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff for $75 damages, and appeal by the defendant.</p>

Action by a receiver of an insolvent corporation to collect a debt due to it for goods sold, brought to the Superior Court in Hartford County. A cross-complaint was filed by Mary B. Beach, and both complaints found to be true by the court, Bennett, J. Judgment for plaintiff.

<p>Whether one tenant has received more than his “ due proportion ” of the rents and profits of land owned by two of them in common, cannot be determined in an action for an accounting, under General Statutes, § 954, without taking into consideration all the equities ' arising between the parties with respect to such land. Accordingly, under a denial of an allegation that the defendant had collected and appropriated the plaintiff’s portion of the rents to his own use and benefit, the defendant is entitled to show that he had erected a building upon the land at his own expense and to claim that such expense, in whole or in part, should be allowed him upon any accounting that might be ordered. The duty of adjusting the accounts, and finding and reporting the balance due, will then devolve upon the auditor or committee.</p> <p>There is no presumption, as matter of law, that valuable improvements made by a husband at his own expense and with the knowledge and consent of his wife, on land owned by them equally in common, were intended as a gift to her.</p> <p>That a balance may be found due from the plaintiff to the defendant is an incident to every action for an account, and a contingency for which the interlocutory decree may well provide.</p>

Action to recover an alleged balance due on a building contract, and also the reasonable worth or value of extra labor and materials, brought to and tried by the Superior Court in Hartford County, Shumway, J.; facts found and judgment rendered for the plaintiff for $17,932, and appeal by the defendant.

Action in the nature of trespass for entering upon land of the plaintiff and cutting and carrying away trees growing thereon, also for an injunction, brought to the Court of Common Pleas in Hartford County and tried to the court, Coats, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover for services as an attorney at law, brought to the Superior Court in Hartford County and tried to the jury before Robinson, J.; verdict and judgment for the plaintiff for $1,800, and appeal by the defendants.

Action for breach of contract, brought to and tried by the Court of Common Pleas in Hartford County, Coats, facts found and judgment rendered for the defendant, and appeal by the plaintiff. The defendant is a corporation engaged in the publication of a newspaper and doing printing. One of its three directors having died, the business and affairs of the corporation were being managed by the two survivors.

Information for carnally knowing and abusing a female child under the age of sixteen years, brought to the Superior Court in Hartford County and tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty, and appeal by the accused.

Suit to determine the amount of compensation which should be paid to the defendant for the condemnation of its toll-bridge over the Connecticut River, taken for the purposes of a public highway, brought to the Superior Court in Hartford County and referred to a committee who heard and reported the facts; the court, Robinson, J., accepted the report and rendered judgment for the defendant for $76,710, from which the plaintiff appealed.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and alleged to be due to the defendant’s negligence, brought to the Superior Court in Hartford County- and tried to the jury before Burpee, J.; verdict and judgment for the plaintiff for $2,000, and appeal by the defendant.

<p>Action to recover a balance alleged to be due as yearly premiums on three policies of liability insurance, brought to the Court of Common Pleas in New London County and tried to the court, Waller, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.</p>

Action to foreclose a mechanic’s lien, brought to and tried by the Superior Court in New London County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

<p>A determination of the truth or sufficiency of the allegations of a plea in abatement disposes of “a cause, ” within the meaning of General Statutes, § 4840, authorizing the allowance of costs to the prevailing party “in causes pending” in this court.</p> <p>The proper office of a plea in abatement is to state facts not Apparent on the record.</p> <p>An order erasing a cause from the docket for want of jurisdiction apparent on the record does not carry costs.</p>

<p>Action by a subcontractor to recover for alleged extra work and material, brought to the Superior Court in New Haven County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiffs for 131,516, and appeal by the defendants.</p>

<p>It is the duty of an executor or administrator to oppose unfounded claims presented against the estate of his decedent, and therefore a motion for an appeal by him as such executor or administrator, from the allowance by commissioners of a claim which he believes to be unjust, sufficiently sets forth his interest in the cause.</p> <p>The law will not imply a promise to pay for services which are rendered and received without any thought or expectation upon the part of either party that they were to be paid for; and this is especially true where it is apparent that ample compensation therefor has already been made by the recipient in his will.</p> <p>The facts in the present case reviewed and held to have warranted the conclusion of the trial court, that neither the claimant nor the decedent expected payment to be made for the services rendered by the former.</p>

Action to enforce a claim for $10,000 against the estate of Mrs. Lucy H. Boardman, deceased, brought to the Superior Court in New Haven County and tried to the court, Reed, J. Judgment for defendants. The testatrix was a woman of large means. The defendant Fields was, up to her decease, and for fifteen years before had been, her confidential business adviser.

Action by a husband to recover for loss of the services and society of his wife, who was alleged to have been injured through the negligence of the defendant, brought to the Court of Common Pleas in New Haven County where a demurrer to the complaint was overruled (Wolfe, J.) and the cause was afterward tried to the court, Simpson, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover damages for an injury to the plaintiff’s horses and wagon, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and tried to the jury before Shumway, J., who directed a verdict for the defendant, from the judgment upon which the plaintiff appealed.

Action to recover for lumber sold and delivered, brought to and tried by the Superior Court in New Haven County, George W. Wheeler, J.; judgment having been rendered for the plaintiff, the defendant, more than two years thereafter, moved for a stay of execution thereon, from a denial of which by Shumway, J., it appealed.

Action to recover damages for negligently undermining a retaining wall and causing its fall, while the defendant was constructing a sewer near the plaintiff’s premises, brought to the Superior Court in New Haven County and tried to the jury before Shumway, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

<p>Action of scire facias against a garnishee, brought to and tried by the Superior Court in New Haven County, Robinson, J., upon a demurrer to the answer; the court sustained the demurrer and rendered judgment for the plaintiff, after which, upon motion of the defendant, a stay of execution was granted by Shumway, J., from which the plaintiff appealed.</p>

Action to recover the amount of a claim presented against the intestate estate of which the defendant was administratrix, and disallowed by the latter, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J.; verdict and judgment for the plaintiff for $4,712, and appeal by the defendant.

Action to recover damages for personal injuries caused by an alleged defective highway, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $500 damages, and appeal by the defendant.

Action by a testamentary trustee for instructions as to the disposition of certain funds, brought to the Superior Court in New Haven County and heard before Case, J., who gave judgment construing the will in a certain way, from which certain of the defendants appealed.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Action to recover a commission for securing a purchaser of the defendant’s real estate, brought by appeal of the plaintiff to the District Court of Waterbury and tried to the jury before Cowell, J.; verdict and judgment for the plaintiff for $100, and appeal by the defendant.

Action for an accounting for the profits made by a testamentary trustee from the purchase of the trust property of the beneficiary, and judgment for the amount found due thereon, brought to and tried by the Superior Court in New Haven County, Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action by the trustee in bankruptcy of a corporation, to recover moneys fraudulently withdrawn from its treasury by a shareholder, brought to the Superior Court in New Haven County and tried before Shumway, J. Judgment for plaintiff. Each party appealed.

Application by the State’s Attorney to the Superior Court in Fairfield County, for a writ of mandamus to compel the reopening of a school. An alternative writ having been issued, and a motion to quash filed, the cause was reserved 0Burpee, J.) for the advice of this court. The alternative writ set forth these facts: The town of Huntington has abolished all school districts therein, and maintains the public schools as one district.

Suit for an injunction against using a water-main laid under a private passway in Waterbury known as Seery Place, and for damages, brought to the District Court of Waterbury. Injunction granted (Peasely, J.)

Action to recover for medicines and medical services, and for moneys expended for the benefit of the defendant's intestate, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiff for $280, from which the defendant appealed.

Action for an injury to a passenger occurring on the defendant’s railroad, brought to the Superior Court in Fairfield County and tried to the jury (Gager, J.). At the close of the plaintiff’s evidence, a motion for a nonsuit vas.'granted. A motion to set the nonsuit aside having been denied, the plaintiff appealed.

Action to recover damages for the loss of a stock of merchandise through' the collapse' and fall of a leased building, which was alleged to have been caused by the negligent acts and omissions of the defendants, brought to and tried by the Superior Court in New Haven County, Shumway, J., upon demurrer to a plea of the statute of limitations filed by the defendant McNamara; the court overruled the demurrer and rendered judgment, for that defendant, from which the plaintiffs…

<p>A nonresident who comes into this State to testify in a cause here pending to which he is not a party, is exempt from the service of civil process while here for that purpose; and the mere fact that he may have some interest in the success of the litigation does not affect this exemption.</p> <p>A demurrer admits the facts alleged, but not averments of unwarranted inferences or conclusions therefrom.</p> <p>The defendant bought stock of A, giving him B’s note in payment therefor under an agreement that when it was collected any surplus should be returned to him, the defendant, and that if not collected the defendant should pay A for the stock or return it. Held:—</p> <p>1. That A thereby became a bona fide holder of the note for a valuable consideration, and was the real as well as the nominal party plaintiff in a suit brought by him upon it against B.</p> <p>2. That the interest of the defendant in the result of that suit did not deprive him of his right of exemption from the service of civil process while attending court in this State to testify as a witness therein.</p>

<p>Action to recover for work and labor and materials furnished, brought to and tried by the City Court of Dan-bury, Booth, J.; facts found and judgment rendered for the plaintiffs for $430, and appeal by the defendant.</p>

Action in the nature of trespass qu. cl.fr., brought to the Court of Common Pleas in Fairfield County and tried to the jury before Scott, J.; verdict and judgment for the plaintiff for $75 damages, and appeal by the defendant.

Action to recover the amount of two claims presented against the estate of a decedent, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $6,683, and appeal by the defendant executor. The complaint contains two counts.

<p>Chapter 22 of the Public Acts of 1907, concerning support by relatives, provides that a husband who neglects to provide his indigent wife with support, may be required by the Superior Court to contribute such sum as may be reasonable and necessary for that purpose. Held:—</p> <p>1. That an offer by a husband to provide support for his indigent wife at his own home, where she had already suffered, and was likely to continue to suffer, such personal indignities, humiliations and abuse as to make her life there unendurable, was no defense to the husband in an action against him upon the statute; a proffer of support under such conditions being one that the law would not countenance or recognize.</p> <p>2. That the trial court might well enquire of the defendant whether his expressed willingness to provide for his wife at his home was one which promised her any relief from her former intolerable situation.</p> <p>3. That while the statute was not designed to secure to a wife the enforcement of her full marital rights of support and maintenance, but was intended to protect the public interest by preventing an indigent person from becoming a public charge, yet the measure of contribution it contempleted was not to be determined arbitrarily by the cost of pauper support, but with a due regard to all of the attendant circumstances, including the health, education, and condition in life of the indigent person.</p>

Action to recover the amount of a non-negotiable promissory note, brought to the Court of Common Pleas in Litchfield County where a demurrer to the complaint was overruled and the cause was afterward tried to the jury before Welch, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

<p>Where a finding is so altered on appeal that the case as finally considered by this court is materially different from that upon which the conclusion of the court below was based, a new trial will be ordered.</p>

<p>Action to recover damages for the alleged breach of a bond given for the faithful performance of a contract to build a dam and reservoir for the plaintiff, brought to the Superior Court in New London County and tried to the jury before Robinson, Jverdict and judgment for two of the defendants to recover $8,000 on their counterclaim and for the other defendant to recover its costs, from which the plaintiff appealed.</p> <p>The plaintiff, having determined to construct a dam and reservoir, having selected a site, and having caused a blueprint plan therefor to be prepared by or under the supervision of its engineer and superintendent, invited proposals for the execution of the work, to be presented within fifteen days after the date of invitation. The invitation stated that the amount of various kinds of work to be done was approximately 193,000 square yards grubbing, 2,000 cubic yards spoil, 5,000 cubic yards fill in reservoir bed, 23,000 cubic yards embankment, 375 cubic yards masonry, 2,000 cubic yards concrete, 230 cubic yards dry rubble, 6,000 cubic yards excavation, 5,000 square yards paving, and 10 tons of casting to set. At the same time copies of instructions for the information of prospective bidders were prepared and furnished to such bidders, and among them the defendants Robbins & Potter. This paper was entitled “Notice to Contractors.” It contained sundry information as to the preparation and presentation of proposals. Among other things, it required that the bids should include all of the various kinds of work, and that they should be in the form of a stipulated price for each defined unit. It . further provided that the estimate by which the bids would be tested would be based upon a table appended, which was like that contained in the notice, except that 100 cubic yards of concrete and 2,500 square yards of plastering were added, and the items for excavation and paving were subdivided into classes as follows: Excavation, 5,000 cubic yards O' to 8'; 700 cubic yards 8' to 16'; 200 cubic yards 16' and below, and paving 800 square yards 15"; 4,200 square yards 12". There were in all fifteen items. To this table was added the following: “The above estimated quantities are approximate, and the Board of Water Commissioners reserve the right to increase or diminish the same, as may be necessary in the judgment of the Engineer.” Both the invitation and notice were signed “ W. H. Richards, Engineer.” Richards was the superintendent and engineer of the plaintiff.</p> <p>Robbins & Potter were the successful bidders. Their proposal conformed to the terms of the notice, in that there was affixed to the statement of the quantity of each class of work, as set out in the “notice to contractors,” the unit price at which it was proposed to do that work. A form of contract was thereupon prepared by the plaintiff, and submitted to the defendants for signature, and was signed by them July 30th, 1901. The bond in suit was executed and delivered at the same time. By the terms of the contract the contractors undertook to furnish all the labor and material, except as provided, and to do all the work therein specified, in accordance with the plans and directions furnished and to be furnished from time to time, and the connections therewith as shown on the drawings, and appurtenances of every kind complete, and of the dimensions, in the manner and under the conditions specified. No plan or drawing was referred to. Specifications were embodied in it, but it nowhere appears in the instrument what the project was upon which the work was to be done, or what the completion of the work was to bring into existence, save as its title designated it as “Contract and Specification for Dam and Reservoir located in the towns of Montville and Salem.” No other measure of the total of the work required, or means of measure, was contained in it. The compensation to be paid was fixed, as in the proposals, as an amount determined upon the basis of certain prices per unit of the various lands of work, but there was no statement of the actual, estimated, or approximate number of any of these units as in the invitation and notice to contractors, proposals, or otherwise. There was the customary provision for an arbiter in cases of dispute, and Richards was made that arbiter. It was also provided that, if he was of the opinion that there was unnecessary delay in the prosecution of the work, he might notify the contractors in writing to that effect, and that if the contractors did not, within five days thereafter, take such measures as would in his judgment insure the satisfactory completion of the work, he might, with the consent of the board, notify the contractors to discontinue work under the contract, and thereafter cause the work to be completed, and charge the expense thus incurred to the contractors.</p> <p>The contractors immediately began the work, and it was considerably advanced when, on October 30th, Richards notified them in writing that in his opinion there was unnecessary delay in it, and that, unless such measures as would in his judgment insure the satisfactory completion of it were taken within five days, they would be required to cease work. November 7th Richards, by and with the consent of the board, took action discontinuing work by the contractors, for the reasons outlined in the notice of October 30th.</p> <p>The defenses and counterclaim described in the opinion set out, in substance, the above undisputed facts, except such as were averred in the complaint. Further than this these pleadings alleged, and the defendants offered evidence to prove, that the plaintiff, during the progress of the negotiations, represented to Robbins & Potter that the specification of quantities of the different kinds of work and materials necessary to complete the construction of the dam and reservoir, which was embodied in the preliminary notice to contractors, had been made by its engineer, an expert competent to make them, and that they were approximately correct; that they represented that' the contract as prepared and presented for signature did not differ, in its requirements as to the kinds and quantities of labor and materials called for, from the specification of the invitation and notice; that said representations were false, and the figures embodying the specification of quantities thus given grossly incorrect and misleading, in that the quantities of several .of the classes of work specified as required to be done in the execution of the enterprise according to the plans, drawings, and directions of the engineer, as later furnished and given, were as follows: Spoil, 25,000 cubic yards, fill, 9,200 or more cubic yards, excavation, 8 to 16 feet, 2,000 or more cubic yards, excavation below 16 feet, 1,500 or more cubic yards, and concrete, 4,000 or more cubic yards; that the plaintiff furnished the figures thus incorrectly given, and made said representations concerning them, knowing that they were false, incorrect, and misleading, and with the intent thereby to induce Robbins & Potter to make a bid and proposal for the construction -of the dam and reservoir, and to defraud them; that Robbins & Potter, being ignorant of the facts to which these figures and representations related, were misled thereby, and thereby induced to make their bid and proposal, which they otherwise would not have made, and to sign said contract, which otherwise they would not have signed; that in October, during the progress of the work, Robbins & Potter definitely ascertained that the plans, drawings, and directions of the engineer, as they were then presented, necessitated the doing of the amount of work last specified, of the several kinds stated; that they thereupon complained of the imposition which had been practiced upon them, notified the board that they did not hold themselves obligated to perform such excess of work, but did not refuse, and never refused, to perform said work and furnish said materials in quantities approximating those stated in the notice and proposals; and that they thereafter continued to prosecute said work properly, and with reasonable rapidity, until compelled to desist by the action of Richards.</p> <p>These pleadings also alleged, and the defendants claimed to have proved, that Richards, in giving his notice of October 30th, and in making his order of discontinuance of November 7th, acted in bad faith, well knowing that there was no unnecessary delay in the prosecution of the work, and with the intent to embarrass the defendants and render it impossible for them to continue with the work.</p> <p>The defendants also offered evidence to prove, and claimed to have proved, the following facts: Richards was and for many years had occupied the official position, provided for by charter, of engineer and superintendent of the board. In that capacity there was entrusted to him by the plaintiff everything relating to maintenance and construction. The entire matter of the preparation of plans for the dam and reservoir, the determination of the methods of construction, and the execution of all the details involved in the procuring of proposals and the preparation of specifications and contract were committed to him. The quantities and kinds of work incident to the construction of an undertaking of the character of that in question will vary more or less according to the amount of expense the owner decides to incur, and it would have been practicable and not contrary to custom to build this dam and reservoir within the limitations as to quantities and kinds of work stated in the “notice to contractors.” By the usage and custom among engineers and contractors the quantities of labor and materials as stated in said invitation and notice would, without further explanation, be taken as showing approximately the quantities of work and materials to be required in constructing the completed dam and reservoir contemplated by the plaintiff, and the contractors would be justified in relying upon them as such. The maps referred to in the invitation to bidders gave no information as to what was to be required in the construction of the dam and reservoir, except to show the proposed flow line of the reservoir, and what might be gathered as to the required depth of the core wall of the dam from the representations of the four test pits on said maps. By the usage and custom among engineers and contractors the “test pits" as shown on such maps would be taken as showing the depth which would be required for the core wall, and the contractors would be justified, in the absence of other statements or explanation, in assuming that they would not be required to excavate for said core wall to a greater depth than is indicated by said test pits. For some months prior to the issuance of the invitation to bidders, Richards, as the plaintiff’s engineer, and his assistant were engaged in making investigations, examinations, and surveys, preparatory to the execution of the work, and this fact was known to Potter. The directions for excavation for a foundation of the core wall carried it much below where a proper foundation was found.</p> <p>The plaintiff offered evidence to establish the allegations of the complaint, and especially that the contractors voluntarily abandoned the work, while still incomplete, before November 7th. It also presented evidence to meet all the defendants’ charges of fraud, misrepresentation, or bad faith on its part, or that of its representative, Richards, and claimed to have established fair dealing and good-faith action on the part of each. It claimed to have shown that Richards was a man of good reputation in his profession, and one in whom the board placed implicit confidence; that Potter, one of the contractors, was notified that a personal examination of the site would be necessary before an intelligent bid could be made; that, as Potter informed it, he, before presenting his firm’s proposal, personally visited and examined the site; that the members of the board were not possessed of technical knowledge, and had no knowledge of what would be required in the performance of the contract superior to that which Robbins & Potter would have acquired by a careful examination of the site and of the plans, specifications, proposed contract, invitation, and notice; that no one of them made any statement to Robbins & Potter implying such knowledge; and that the contractors continued work under the contract after they were fully aware that the work of certain kinds to be done was largely in excess of the amounts stated in the invitation and “notice to contractors.”</p> <p>Other pertinent facts are sufficiently stated in the opinion.</p>

<p>Appeal from the disallowance by commissioners of a claim presented by the plaintiff against the estate of Joseph W. Kindregan of Waterbury, deceased, for services, care and attendance, taken to the Superior Court in New Haven County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $10,000, and appeal by the defendants.</p>

Action to recover damages for the removal and conversion of two small portable buildings and their contents, placed by the plaintiff on the seashore above high-water mark in the town of Milford, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; verdict and judgment for the defendants, and appeal by the plaintiff.

Action to recover damages for injuries to the person and automobile of the plaintiff, which were alleged to have been caused by a defective highway, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plain-^ tiff for |450, and appeal by the defendant.

Action for personal injuries received in going to the sidewalk after alighting from a street-car, brought to the Superior Court in Fairfield County and tried to the jury (Gager, J.). Verdict directed for defendant. The complaint, after alleging that the plaintiff, on April 21st, 1908, between 7 and 8 P. M., became a passenger on one of the defendant’s cars in the city of South Norwalk, contained these averments as to the nature and cause of the accident:— “3.

? Information for manslaughter, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of | the court.

Action to recover an alleged balance for wood, lumber • and coal sold to the defendant, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover for tobacco alleged to have been sold to the defendant Case for and on account of the other defendants, brought to the Superior Court in Litchfield County where the plaintiff was nonsuited in a trial to the jury before George W. Wheeler, J., from which judgment he appealed.

Action to recover for tobacco alleged to have been sold to the defendant Case for and on account of the other defendants, brought to the Superior Court in Litchfield County where the plaintiff was nonsuited in a trial to the jury before George W. Wheeler, J., from which judgment he appealed.

<p>Action to restrain the defendant from interfering with the erection and maintenance of a fence by the plaintiffs, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.</p> <p>One Hanna formerly owned a tract of land in New Britain, which included A, B, C, D and E shown upon the following sketch:—</p> <p> </p> <p>As appurtenant to all this land he had passway rights in F. The piece A was subsequently conveyed away, and a building constructed upon it substantially covering the whole of it. Later, in 1902, Hanna’s executor conveyed B, and also another tract of land elsewhere located, to the defendant. Together with each of these two tracts the deed granted a right of way over land reserved. The language of the grant as appurtenant to B was as follows: “Together with a right of passway for all purposes over a strip of land of said estate of the uniform width of twenty-one and five tenths (21.5) feet in the rear of the land granted from the land of the said New Britain Opera House Company to the extension of the southerly line of the property herein conveyed, and thence over a strip of land of the uniform width of fifteen feet along the rear of said Marble block to the passway on the south side of said Marble block, thence along the existing passway on said south side of said Marble block to Main Street.” A was then owned by the New Britain Opera House Company. C, now owned by the plaintiffs, was and is substantially covered by a building known as Marble Block. B is also covered by a building occupied by the defendant for business purposes. There are no permanent buildings upon either D or E, the fee of both of which is in the plaintiffs. The defendant has acquired the right to use a portion of the building upon A for storage purposes. This building stands within about one foot from the boundary line between A and E, and has a rear door facing the end of the passway. After the defendant acquired his rights in A he made use of the passway in passing to and fro between the rear of his building on B and his storage room in A, making use for that purpose of the door referred to. This use- of the passway was convenient and of value in connection with the defendant’s occupancy of B. The plaintiffs, to prevent this use of the way, began to erect a fence on the line between E and A. The defendant thereupon tore down and removed the fence, and forcibly prevented, and threatens to continue to prevent, the erection of a fence in said location. This action was then brought, asking for damages, and for an injunction to restrain the defendant from interfering with the construction of such fence. There are no rights in the passway appurtenant to A.</p>