Volume 85 — Connecticut Reports

Application by the plaintiffs for the appointment of a committee to estimate and assess damages and benefits to the property of the defendant, resulting from a change of the highway grade in front of its premises, brought to the Hon. Howard J. Curtis, a judge of the Superior Court, who appointed a committee of three.

<p>The failure of the assessors to notify a taxpayer of additions made by them to his list, as required by chapter 154 of the Public Acts of 1905, is waived by his appeal to the board of relief.</p> <p>General Statutes, § 2299, prescribes that “any interest in real estate” listed for taxation, shall be set in the list of the record owner in the town in which th\ real estate is located. Held that wooden, summer cottages, so-called, erected by their respective lessees upon land owned by the plaintiff, constituted an “interest in real estate” within the meaning of the statute, and, as such, were taxable to the owner of the land, although as between the parties themselves, and by reason of their agreement, the structures might be regarded as personal property removable by the lessees.</p> <p>For the purposes of taxation, every municipality is entitled to the benefit of all the real estate lying within its borders.</p>

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the plaintiff for $375, and appeal by the defendant.

Action to recover the reasonable value of services rendered and materials furnished, brought to the City Court of New Haven and tried to the jury before Tyner, J.; verdict and judgment for the plaintiff for $334 against the defendant John P. Daley only, from which that defendant appealed.

Action to recover damages for slander and libel, brought to the Superior Court in New Haven County and tried to the jury before Holcomb, J.; verdict and judgment for the plaintiff for $4,000, and appeal by the defendant.

Suit by a trustee in bankruptcy to secure the cancellation of certain deeds of real estate made by the bankrupt to the defendant, brought to the Superior Court in New Haven County where a demurrer to the second and third defenses of the answer and to the defendant’s counterclaim was sustained (Reed, J.) and the cause was afterward tried to the court, Williams, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>Appeal from the denial, by the Court of Probate for the District of Milford, of an application by a conservator praying that he might be authorized to compromise and settle a claim against the incompetent person for legal services and expenses, upon the terms stated in such application, taken to and tried by the Superior Court in New Haven County, Ralph Wheeler, J.; facts found and judgment rendered granting the desired authority, and appeal by the town of Milford.</p>

Action to recover the cost of supplies furnished to one who was alleged to be a pauper and to belong to the defendant town, brought by the defendant’s appeal from a judgment of a justice of the peace to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

<p>Suit for an injunction to restrain the defendants from selling on execution certain household furniture which they claimed to have attached, except subject to a mortgage for $500 held by the plaintiff, 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 the alleged fraud of the defendants, brought to the Superior Court in New Haven County where a demurrer to the complaint was sustained and judgment rendered for.the defendants (Ralph Wheeler, J.), from which the plaintiff appealed.

Action against the obligors of a bond given to dissolve an attachment, brought to the Superior Court in Fairfield County where the bond sued upon was reformed (Williams, J.) pursuant to the prayer of the defendants’ cross-complaint, and judgment was afterward rendered in their favor (Shumway, /.), from which the plaintiffs appealed.

Action to recover damages for personal injuries alleged to have been caused by the defendants’ negligence, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the plaintiff for $4,000, and appeal by the defendants.

Action to recover damages for • personal injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the negligent operation of the defendant’s automobile by his servant, brought to the Superior Court in Fairfield County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.

Application in the nature of an appeal from the refusal of the board of relief of the defendant town to erase from the plaintiff’s tax list certain items comprising part of the plaintiff’s system of water-works in New Canaan, which were added to the list by the assessors of that town, brought to and reserved by the Superior Court in Fairfield County, Reed, J., upon an agreed statement of facts, for the advice of this court.

Action against the town and the city of Danbury to recover damages for personal injuries caused by the fall of a limb of a tree in and extending over the highway, brought to the Superior Court in Fairfield County where successive demurrers to the original and amended complaint were sustained (Gager and Reed, Js.) and judgment rendered for each of the defendants, from which the plaintiff appealed.

<p>Suit to determine the validity and construction of the will of Lucy A. Noyes of Hartford, deceased, brought to and reserved by the Superior Court in Hartford County, Williams, J., upon the facts stated in the complaint, for the advice of this court.</p>

<p>The law of the place of contract determines its validity and construction and settles the rights of the parties under it, unless the contract is to be performed or to have its beneficial operation and effect elsewhere, or is made with reference to the law of another place; but the form of remedy, in an action for its breach, and the judicial proceedings thereunder, are prescribed and regulated by the law of the place where the action is brought.</p> <p>The remedies provided in the Sales Act (Public Acts of 1907, Chap. 212), for the recovery of damages for the nonacceptance of goods, and of the price agreed to be paid for them, when the title has passed, do not differ substantially from those in force at the time of its enactment; but § 63 (3) of that Act, in permitting a recovery of the price when the title has not passed, gives a remedy not before known to our law. In such a case the seller’s remedy, prior to the passage of the Act, was for the recovery of his actual damages, which were usually measured by the difference between the price agreed upon and the value of the goods.</p> <p>The elements of an action under § 63 (3) of the Act are a breach of the contract, nonpassage of the title at the time of the breach, an inability to sell the goods at a reasonable price, an offer of the vendor to deliver them to the buyer and the latter’s refusal to receive them, and a notification by the vendor that he will thereafter hold the goods as a bailee for the buyer.</p> <p>The defendant gave the plaintiff in this State an oral order, subject to change, for a large quantity of post-cards to be manufactured in New York and shipped to him here, and afterward gave a definite written order f r the same cards in that State. Before the cards were shipped the defendant sought repeatedly to cancel a portion of the order, but the plaintiff declined to accept the attempted cancellation and shipped all the goods as originally ordered. The defendant refused to accept them, and the plaintiff notified him that they were in the carrier’s hands subject to his order, where they thereafter remained. The plaintiff manufactured these goods only on special order, and there was no available market for them at wholesale after the attempted cancellation. In an action for the failure to accept the goods it was held: —</p> <p>1. That the form of remedy was governed by our law.</p> <p>2. That all the elements necessary to sustain an action under § 63 (3) of the Sales Act were present.</p> <p>3. That the plaintiff was justified in shipping the goods after the attempted cancellation, without separating those it knew the defendant had refused to receive from those he was willing to receive, and was under no obligation to attempt to sell the goods when it knew there was no market for them.</p>

Action by the payees against the maker and indorsers of two promissory notes, brought to and tried by the Superior Court in Fairfield County, Shumway, J.; facts found and judgment rendered for the plaintiffs for $3,492 as against the defendant the Stamford Tidewater Coal Company, from which that defendant appealed. The plaintiffs, as copartners, are wholesale dealers in coal. The Tidewater Coal Company, a New York corporation, buys and sells coal at wholesale.

<p>Action in the nature of trespass qu. cl. fr., claiming an injunction and damages, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J., upon the equitable issues involved; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.</p>

Suit to determine the validity and construction of the wills of Zachariah Huntington and his son Thomas M. Huntington of Norwich, deceased, brought to and reserved by the Superior Court in New London County, Ralph Wheeler, J., upon the facts alleged in the complaint and admitted in the answers thereto, for the advice of this court.

Action to recover a balance alleged to be due on a building contract, and also the reasonable value of certain extras, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, Jverdict and judgment for the plaintiff for $153, and appeal by the defendant. The complaint was in two counts. The first alleges that the parties executed a written contract, which is made part of the complaint, and reads as follows: “New Haven, Conn. July 1,1909.

Suit to restrain the defendant from obstructing a right of way alleged to belong to the plaintiff, and also for damages, 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 expenses incurred in the necessary-support of a pauper, his wife and children, who were alleged to have a legal settlement in the defendant town, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, Jfacts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action in several counts to recover damages for assault and battery, and for trespass to personal property, brought to and tried by the Superior Court in Middlesex County, Bennett, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover for repairs to an automobile, brought to the court of Common Pleas in Hartford County and tried to the jury before Coats, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for breach, of contract, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the plaintiffs for $350, and appeal by the defendants.

Action to recover damages for an alleged breach of a written agreement, brought to and tried by the Superior court in Hartford County, Williams, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

<p>Action to recover damages for injuries to the horse and wagon of the plaintiffs through the alleged negligence of the defendant to maintain a guard-rail or barrier upon the side of the highway at the place of the accident, brought to the District Court of Waterbury and tried to the jury before Peasley, J., who directed the jury to return a verdict for the defendant, from the judgment upon which the plaintiffs appealed.</p>

Action to recover the balance of a deposit made by the plaintiff in the defendant bank, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

<p>A druggist is liable for the negligence of his clerk in performing duties within the scope of his employment.</p> <p>He is not relieved from this liability by the fact that the clerk is competent and experienced.</p> <p>These facts are not admissible as tending to show whether or, not he was careful on the occasion in question.</p> <p>In determining the question of ordinary care as applied to a drug clerk filling prescriptions, the dangerous character of many drugs, and the serious consequences which may ensue from want of care, are to be considered.</p> <p>Ordinary care with reference to the business of a druggist signifies a high degree of prudence, thoughtfulness, and vigilance.</p> <p>The question of negligence as applied to the conduct of a drug clerk is one of fact; and the conclusion of the trial court thereupon must stand unless inconsistent with subordinate facts found.</p> <p>Where a prescription as read by the clerk, taken in connection with the surrounding circumstances, naturally excites suspicion that an ingredient apparently named was not intended, it is the duty of the clerk to make reasonable effort to ascertain whether or not his reading is correct.</p> <p>If a drug clerk does not exercise due care, it is no defense to an action against his employer that he was a duly licensed pharmacist.</p>

Application in the nature of an appeal from an assessment of benefits and damages resulting from the layout, widening, and grading of a city street, brought before the Hon. Edwin B. Gager, a judge of the Superior Court, and referred to a committee who heard and reported the facts; the defendant filed a remonstrance to the original and supplemental report of the' committee, to which the plaintiffs demurred; the judge sustained the demurrer, accepted the committee's report,…

Suit to determine the construction of the will of Joseph T. Bates of Danbury, deceased, brought to and ■reserved by the. Superior Court in Fairfield County, Case, J'., upon the facts alleged in the complaint and admitted by the answers, for the advice of this court.

<p>Action to recover damages to the premises of the plaintiff caused by a change of grade in the highway, brought to the Superior Court in New Haven County and tried to the jury before Greene, J.; verdict and judgment for the plaintiff for $800, and appeal by the defendant.</p>

Writ or error to reverse a judgment of the Superior Court in New Haven County (Shumway, J.) rendered in favor of the defendant in error.

<p>Action by the alleged bona fide assignee and owner of a foreign judgment to recover the amount thereof, brought to the Superior Court in New Haven County where a plea in abatement was stricken out and a plea in bar in the same words was sustained, Ralph Wheeler, J.; the plaintiff then filed a reply which, upon motion of the defendant, was stricken from the files (Curtis, J.) and, after a motion for leave to amend the complaint had been denied (Case, J.), judgment was rendered for the defendant, from which the plaintiff appealed.</p>

<p>A conservator cannot,- without an order of the Court of Probate, borrow money on the credit of his ward’s estate with which to purchase for the ward an interest in a business.</p> <p>The rights of the lender are not increased by the facts that, while he knew the relations of the parties, he was ignorant of the conservator’s want of power, and that he acted in good faith. He must look to the conservator personally for repayment.</p> <p>Where a guardian or other trustee improperly uses or reinvests the funds of the estate, the ward is entitled to any benefit derived from the transaction.</p> <p>The final account of the conservator, duly accepted and allowed by the Court of Probate, is admissible against him for the purpose of showing whether or not the borrowed money went into the ward’s estate. Such evidence, however, is not conclusive upon the conservator.</p>

Action to recover .a balance alleged to be due the plaintiff under a contract for Ms services and allowance for expenses as a salesman, brought to and tried by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered for the plaintiff _ for $1,927, and appeal by the defendant.

Suit to restrain the defendant from continuing to operate an orphan asylum and home for the aged on certain lots on York Square in New Haven, in alleged violation of the terms of the deed under which the defendant acquired its title and of the conditions and restrictions contained in an earlier deed of trust of which the defendant had notice, and also for damages, brought to and tried by the Superior Court in New Haven County, Gager, ./.; facts found and judgment rendered…

Suit to determine the question of the plaintiff’s title and right to sell certain real estate devised to it under the will of Catherine E. Pettengill of Bridgeport, deceased, brought to and reserved by the Superior Court in Fairfield County, Curtis, J., upon a finding of facts, for the advice of this court.

Action to recover the amount of a forfeited bond or recognizance taken by a justice of the peace in a criminal case pending before him, brought to the District Court of Waterbury where a demurrer to the complaint, filed by the surety upon the bond, was sustained {Meigs, Deputy-Judge), and judgment rendered for that defendant, from which the plaintiff appealed.

, abating and dismissing a bastardy complaint for alleged illegal and insufficient service of the writ and process. This bastardy complaint against the defendant, who is therein described as, and who in fact was, a resident of New Haven, was brought to the Town Court of the plaintiff town. The statutory warrant was thereupon issued directed to the sheriff of the county, his deputy, or either of the constables of Hamden, and to one Webster, an indifferent person.

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 Holcomb, J.; verdict and judgment for the plaintiff for $3,000, and appeal by the defendant.

Action to recover damages for the alleged negligence of the defendant, as civil engineer, in locating one of the boundary lines of the plaintiff’s land, and for a breach of his warranty that the line as located was true and correct, brought to the Superior Court in New Haven County and tried to the jury before Holcomb, J.; verdict and judgment for the plaintiff for $1,519, and appeal by the defendant.

Suit for an injunction requiring the defendant, as comptroller of the State, to prescribe regulations looking to the enforcement and execution of chapter 187 of the Public Acts of 1911, providing for the payment of $30 annually by the State to all honorably discharged soldiers and sailors of the Civil War, resident in this State, brought to and reserved by the City Court of Hartford, Bullard, I., upon a demurrer to the complaint, for the advice of this court.

Action to recover rent for the use of locomotives, dump-cars, and rails leased to and employed by the defendant in building a reservoir dam, and the price of merchandise sold, brought to the Superior Court in New Haven County and tried to the jury before Holcomb, J.; verdict and judgment for the plaintiff for $515, and appeal by the defendant.

Application in the nature of an appeal from an assessment of special benefits on account of the laying out and widening of Stratford Avenue in Bridgeport, brought to and reserved by the Superior Court in Fairfield County, Curtis, J., upon a finding of facts, for the advice of this court.

Writ of error to reverse a judgment of the City Court of Hartford in an action of summary process, brought to this court on the first Tuesday of March, 1912, the opening day of the present term, where the defendants filed a plea in abatement for the reason that service thereof was not made at least thirty days before the return day, and return made at least twenty days before that day, to which the plaintiff demurred and also moved to erase.

Action to recover the amount of a town tax, brought by appeal from a judgment of a justice of the peace to the Superior Court in Middlesex County where a demurrer to a plea of the statute of limitations was sustained (Williams, J.), from which the defendant appealed.

Suit to foreclose a mortgage of real estate, brought to the Superior Court in Tolland County and tried to the court, Ralph Wheeler, J., upon a demurrer to the complaint; the court overruled the demurrer and subsequently rendered judgment for the plaintiff, from which the defendant appealed.

Action by a real-estate broker to recover a commission for obtaining a purchaser of the defendants’ property, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the plaintiff for $117, and appeal by the defendants.

Action for divorce and for custody of a minor child, brought to the Superior Court in Hartford County and referred to a committee who heard the evidence and reported the facts; the court {Reed, J.) accepted the committee’s report and rendered judgment for the plaintiff, from which the defendant appealed.

Petition for a recount of the ballots cast at the annual election in the city of Meriden in December, 1911, and for the issuance of a certificate to the petitioner as mayor of said city, brought to and heard by the Hon. Luden F. Burpee, a judge of the Superior Court; facts found and judgment rendered for the petitioner, and appeal by the respondent.

Action to recover damages for injuries to the plaintiff’s land and dwelling-house caused by the operation of the defendant’s electric street-railway over the plaintiff’s land within the highway and in front of his premises, brought to the Superior Court ip, Hartford County where a demurrer to the complaint was sustained pro. forma■ (Greene, J.), and judgment rendered for the defendant, from which the plaintiff appealed.

Action to recover the unpaid balance claimed to be due upon an alleged annual contract to employ the plaintiff as supervisor of the defendant’s ball-bearing department, brought to and tried by the Court of Common Pleas in Hartford County, Coats, Jfacts found and judgment rendered for the plaintiff for $906, and appeal by the defendant. The defendant, desiring a superintendent for its ball-bearing department, made the plaintiff a proposition to serve it in that capacity.

<p>Action to recover $600 loaned to one Danzig by the plaintiff in consideration of an assignment to him of such an amount out of a balance of $800 to become due said Danzig upon his completion of a certain building, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, J.; facts found and judgment.rendered for the defendants,-and appeal by the plaintiff.</p>

Appeal by tbe defendant George L. Gerard (during tbe pendency of an action to quiet and settle title to real estate) from a supplemental judgment rendered by Curtis, J., in tbe Superior Court in New Haven County, awarding to tbe defendant Frankie S. Garfield Emmons certain rents, collected by a receiver appointed for that purpose and amounting to $270.85, after said defendants bad interpleaded, upon the order of Burpee, J., as to their ownership thereof.

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 Holcomb, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.

<p>Action to recover for merchandise alleged to have been sold by the plaintiff to the defendant, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff for $500, and appeal by the defendant.</p>

<p>Where plaintiff alleged in his complaint a breach of implied warranty of wholesomeness of certain meat purchased on or about a certain date, and in opening his case offered evidence of only one purchase upon which he relied, the court correctly charged the jury that they could not base a verdict for the plaintiff upon evidence of other purchases on other occasions, which was introduced by the defendants at the close of the plaintiff’s case.</p> <p>Having voluntarily chosen the cause of action upon which he relied, the plaintiff could not claim a recovery upon another independent cause of action, especially when he made no claim and offered no evidence to prove that said other contracts of purchase included such implied warranty.</p> <p>The jury could have based a verdict for the plaintiff upon evidence which the defendants had introduced by their witnesses, provided said evidence related to the cause of action which the plaintiff by his complaint and evidence had elected to try.</p>

Suit to determine the rights of the respective beneficiaries under the will of Mary C. Wakeman of South-port, deceased, brought to and reserved by the Superior Court in New Haven County {Holcomb, J.), upon issues presented by the facts stated in the complaint and admitted by the several answers of the defendants, for the advice of this court.

Appeal by the plaintiff from a decree of the Court of Probate for the district of Waterbury approving and admitting to probate the last will of Mary Cullum of Waterbury, deceased, taken to the Superior Court in New Haven County and tried to the jury before Holcomb, J.; verdict and judgment confirming the decree of the Court of Probate, and appeal by the plaintiff.

Action to recover damages for personal injuries resulting in the death of plaintiff’s intestate and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff for $2,500, and appeal by the defendant.

Action for divorce, alimony, and the custody of two minor children, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Information for violation of the law respecting the sale of intoxicating liquors, brought by appeal of the accused from the City Court of Bridgeport to the Criminal Court of Common Pleas in Fairfield County and tried to the jury before Walsh, J.; verdict and judgment of guilty, and appeal by the accused.

Action to recover a balance claimed to be due the plaintiff on a contract to perform certain mason work for the defendant at an agreed price, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiff for $345.88, and appeal by the defendant.

Suit to determine the construction of the will and codicil of Louise C. Weed of Darien, deceased, brought to and reserved by the Superior Court in Fairfield County (Case, /.), upon an agreed statement of facts, for the advice of this court. Mrs. Louise C. Weed, late of Darien, dying November 19th, 1910, left an estate inventoried at $59,130.86.

Application by the town of Norwalk for the appointment of a committee to assess the damages suffered by the defendants from the taking of their land for bridge and park purposes under a Special Act of the. legislature, brought to and heard by the Hon. William S. Case, a judge of the Superior Court, who rendered judgment dismissing the application, from which the plaintiff appealed.

Action by a physician to recover the reasonable worth of professional, services, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the plaintiff for $275, and an appeal by the defendant. The plaintiff is a practicing physican. The defendant is a corporation operating a mill for0the manufacture of paper board. One McDiarmid, a boy about seventeen years of age, worked in the mill as a helper or back tender.

Motion at a criminal term of the Superior Court in New Haven County, to open a judgment and sentence of said court, and permit the accused to withdraw his plea of guilty to the charge of assault with intent to murder, second offense, and enter a plea of not guilty; the court, Holcomb, J., denied the motion, and the accused appealed.

<p>In an action against a corporation to recover for services rendered and money advanced, where the defense is that such services were rendered and such payments made for two of the individual stockholders and not for the corporation, a charge that unless the services were performed and the payments made at the request of the defendant it would not be liable, fairly presents the defendant’s claim.</p> <p>Where the complaint, with the bill of particulars, states a good cause of action, and is not demurred to, and no motion in arrest is made, an assignment of error alleging that the court erred in permitting a recovery upon the pleadings, is not well taken.</p> <p>Errors in the charge should be assigned as such and not as errors of the court “in permitting a recovery.”</p> <p>The president of a mercantile corporation, and in charge of its business, is presumed to have authority to employ the necessary help, and to do all those things ordinarily done by those in charge of such a business. This authority may be given by vote of the directors, or may arise from the fact that such officer has assumed and exercised the power in question under circumstances from which his agency will be implied.</p> <p>In a suit brought upon the common counts for wages and for money expended, a motion that the complaint be made more specific by stating the arrangement between the parties, the nature and character of the services to be performed, and the time, place, and circumstances of the request to advance the money claimed to have been expended, is addressed to the discretion of the trial court; and error cannot be predicated upon the exercise of that discretion.</p> <p>The rule requiring that acts done and promises made through a known agent shall be so stated (Practice Book, p. 244, § 144), has no reference to the acts and promises of corporations.</p> <p>The court, in its discretion, may vary the usual order of testimony and receive evidence of an act alleged to have been done by an agent, before the agency itself has been established by evidence.</p> <p>A ruling of the court which consists simply of the words “allow it,” made upon a motion that testimony be stricken out, fairly indicates that the motion is granted.</p>

<p>An Act expressly repealing inconsistent Acts or parts of Acts adds nothing to what would result by implication. Such repeals are not favored, and will not be extended beyond the reason therefor, nor presumed where the earlier and later statutes may be reconciled.</p> <p>The action or non-action of administrative boards may become the subject of judicial review whenever it is claimed, among other things, that it works material damage to individual or corporate rights, or invades or threatens such rights, or is so unreasonable as to justify judicial intervention, or is not consonant with justice, or that a legal duty has not been performed.</p> <p>When there is doubt as to the jurisdiction of such a board, a motion to dismiss the proceeding before it for want of jurisdiction should be denied.</p> <p>Where a judge is by statute constituted a special tribunal with definite limited powers, whose jurisdiction of the subject-matter is made dependent upon the existence of certain prescribed conditions, until and unless the existence of such conditions is averred and proven and affirmatively appears of record, he is without authority to act, and any attempted action on his part is coram non judice and void.</p> <p>No presumption will be made in favor of jurisdiction.</p> <p>The objection of want of jurisdiction may be made at any time, and the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.</p> <p>Where a statute permits an application to a judge to determine the amount of money to be paid by a town to a borough within it for highway construction and improvement, only in the event of a disagreement between the selectmen and burgess representatives upon a joint board, the application must aver such disagreement, since it is a jurisdictional fact.</p> <p>Such an application, lacking such an averment, may not be made sufficient by amendment, since the allowance of an amendment involves the assumption and exercise of jurisdiction.</p>

Action to procure the release of a mortgage, and for damages, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict for the plaintiffs for $550 damages, which the trial judge set aside upon motion of the defendant, and the plaintiffs appealed.

Action to foreclose a mortgage, and for possession of the mortgaged premises, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the plaintiff, from which the defendants Henry B. and Fannie B. Pettes appealed.

Suit to restrain, the defendants, their agents and employees from using a passway across the rear of the plaintiff’s land, and from maintaining or using pipes laid therein, brought to the Superior Court in Fairfield County where the facts as stipulated by the parties were found by the court, Curtis, J., and judgment rendered for the plaintiff, from which the defendants appealed.

Action to have certain sewer assessment liens adjudged invalid and of no effect, and for damages for failure to discharge said liens on demand and after tender of the principal of said liens and the cost of recording them, brought to and reserved by the Superior Court in Fairfield County, Case, J., upon an agreed statement of facts, for the advice of this court.

Action to decree a mortgage void, to secure a reconveyance of certain real estate, and for damages for fraud in sale of real estate, brought to and tried by the Superior Court in Litchfield County, Case, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

Suit to foreclose a mortgage of real estate, brought to and tried by the Superior Court in Litchfield County, Case, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Suit for a conveyance of real estate, the release of a mortgage, and for damages, brought to the Superior Court in New London County where a demurrer to the complaint was overruled (Greene, J.), and the cause was afterward tried to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, from which the defendant Cowles appealed.

Interpleader to determine to whom a fund now held by the plaintiff and claimed by each of the defendants shall be paid, brought to and tried by the Superior Court in New London County, Reed, J.; facts found and judgment rendered for the defendant Mathilde Von Ellert Sistare, and appeal by the other defendants.

<p>In an action to recover damages for personal injuries, a request to charge that if the jury find that the plaintiff was walking along the highway in the exercise of ordinary care and that a team traveling in the same direction drove against him and knocked him down, he is entitled to recover, is properly refused, as it ignores the question of whether or not the defendant was negligent.</p> <p>One of the defenses being that a small sum ($25) had been paid by the defendant to the plaintiff in settlement of the cause of action, a request to charge to the effect that the inadequacy of the consideration paid is a proper matter for the consideration of the jury, is properly refused, the amount paid being of no consequence, as the demand was wholly unliquidated.</p> <p>Under such circumstances a charge that any sum or any article of value given and received in satisfaction of the injury would be a consideration for a receipt and make it binding upon the party receiving it, is proper.</p> <p>No fraud in connection with the receipt being’ either alleged or shown, a request to charge predicated upon proof of fraud is properly refused.</p> <p>Fraud must be specially pleaded.</p> <p>There being no allegation or claim made upon the trial that there was fraud, imposition, undue influence, or any mutual mistake as to the meaning and effect of a receipt in full given on payment of the consideration, the plaintiff cannot justly claim that the receipt was not binding upon him.</p> <p>The question whether or not a pedestrian should look back and see whether he is in danger of being run down by teams is one of fact for the jury.</p>

Action by a subcontractor on the common counts to recover for alleged extra work done in the overhead construction of a part of the defendant’s railway, brought to the Superior Court in New London County and tried to the jury before Greene, J.; verdict and judgment for the plaintiff for $2,580.60, and appeal by the defendant.

Action to restrain the defendant from obstructing a public highway, and for damages, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Applications for the appointment of appraisers to estimate damages arising from the taking of land for the purposes of the plaintiff as an educational corporation, brought to and heard together by the Hon. Joel H. Reed, a judge of the Superior Court, who, after a full hearing, appointed appraisers, from which action the defendants appealed.

Action to recover damages for injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New London County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $3,000, and appeal by the defendant.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New London County and tried to the jury before Ralph Wheeler, J.; verdict for the plaintiff for $2,750, which the trial court, on motion of the defendant, ordered set aside unless the plaintiff would remit so much thereof as exceeded $900, from which ruling the plaintiff appealed.

<p>Under the Sales Act (Public Acts of 1907, Chap. 212, § 67), and also under the rule previously established in this State, the measure of damages, in a suit by the vendee for the refusal of the vendor to deliver the goods sold, is the loss directly and naturally resulting to the vendee, in the ordinary course of events, from the vendor’s breach of contract.</p> <p>Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances, is the difference between the contract price and the market price of the goods at the time and place at which they ought to have been delivered. If there is no available market, or if there are special circumstances showing proximate damages of a greater amount than the difference between the contract price and the market price, a different measure of damages has to be adopted.</p> <p>Where the trial court assessed damages at the difference between the contract price and the price actually paid by the buyer to other parties for the goods, and it does not appear from the finding whether there was an available market for the goods, or that the price paid was not the market price, this court cannot find error.</p> <p>The appellant cannot, as a matter of right, raise other questions of law on his appeal than those which he declared in his request for a finding that he deshed to raise, although the rulings sought to be questioned appear in the record as made up. A finding is prepared to present only those questions which the plaintiff in his request notified the court that he desired to raise; and as to other questions this court cannot know that there are not other pertinent facts than those found which the court would have found, if it had been informed, as the statute requires, that such questions ' were to be raised.</p> <p>When one has testified that he made certain payments and received a receipted bill therefor, it is not error to admit in evidence the receipted bill. The taking of such a receipt is the natural act of one making a payment; and the receipt is real evidence corroborative of the oral testimony rather than hearsay emanating from the giver of the receipt. The receipt is also admissible to fix the date of the transaction.</p> <p>Where a witness testified that he made a certain payment, and no evidence was offered to contradict this testimony, the admission of a receipt as corroborative evidence would be harmless, and therefore no cause for a new trial, even if the receipt had been legally inadmissible.</p>

Plea in Abatement, by the State, to an appeal taken by the accused from a judgment rendered in the Superior Court in New Haven County (Ralph Wheeler, J.), alleging that the appeal was not taken to the Supreme Court of Errors next to be held after the filing of the appeal, to which plea the accused demurred.

Action to recover a balance claimed to be due upon a contract for work done in the construction of a mill building, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

<p>Action to recover damages for breach of a contract relating to real estate in which the plaintiff and defendants were jointly interested, brought to and tried by the Superior Court in New London County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $3,322, and appeal by the defendants.</p>

<p>Action to recover damages for personal injuries alleged to Lave been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Reed, J.; verdict and judgment for the plaintiff for $1,200, and appeal by the defendant.</p>

Action to recover damages for breach of warranty against incumbrances, and for taxes amounting to $4.85, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff to recover the taxes only, and appeal by her.

<p>Application for the punishment of the defendants for alleged contempt in violation of a temporary order of injunction, brought to' and tried by the Superior Court in Hartford County, Greene, J.; facts found and judgment rendered for the defendants, and appeal by plaintiffs.</p> <p>On April 4th, 1911, the State Senate passed a resolution, known as Senate rule No. 27, which reads as follows: “Resolved by the Senate: That the rules of the Senate be and hereby are amended by adding thereto the following: 27th. Within a reasonable time after the organization of the Senate, a president pro tempore shall designate eleven reporters of Connecticut newspapers to report the proceedings of the Senate. If said reporters shall have continuously attended upon the Senate during the legislative session they shall be entitled each to receive compensation therefor in the sum of three hundred dollars; and upon the certification by the president pro tempore to the comptroller that such reporters have been in such attendance, the comptroller shall draw his order on the treasurer for said sums in favor of the persons entitled thereto.”</p> <p>On the 5th of June, 1911, the applicants in the present proceedings brought an action against the present defendants, returnable to the Superior Court in Hartford County on the first Tuesday of September, 1911, in which the plaintiffs described themselves as residents and taxpayers of certain named towns of this State, other than Hartford, and the defendants Bradstreet and Lippitt as, respectively, the comptroller and treasurer of this State, and as residing, one in Thomaston, and the other in Norwich.</p> <p>The complaint in said action alleged that the Senate passed rule 27, above set forth; that on April 6th, 1911, the president pro tempore of the Senate, pursuant to said rule, designated eleven named reporters of Connecticut newspapers; that each of said reporters attended the sessions of the Senate in the course of his employment by the owner of the newspaper for which he reported, and not in the performance of any duty or service which he owed the Senate or State; that such payments to said reporters would, if made, be gratuities, and would be illegal; that the plaintiffs believed that the president pro tempore would certify that said reporters had continuously attended the session of the Senate; and that the comptroller would draw his order upon the treasurer, and the treasurer would pay $300 to each of said reporters, unless restrained by order of court.</p> <p>The complaint asked for an injunction restraining the comptroller from drawing "any order upon the treasurer of said State in favor of any person on the certification of the president pro tempore of the Senate as set forth in the resolution aforesaid,” and restraining the treasurer "from making any payment upon the order of said comptroller to, or for the benefit of, any person certified by the president pro tempore of the Senate in accordance with the terms of said resolution.”</p> <p>On the day said action was commenced the plaintiffs presented said complaint to a judge of the Superior Court and applied for a “temporary injunction restraining the defendants as prayed for.”</p> <p>The parties to said action, and said named reporters, appeared at the hearing upon said application, and on the 19th of June said judge issued an order of temporary injunction, enjoining said comptroller and treasurer in the following language: “Ordered, that you, Thomas D. Bradstreet, as Comptroller of the State of Connecticut, be and are hereby enjoined and restrained until further order of the said Superior Court in said action, or of a judge thereof, from drawing your order upon the Treasurer of said State for the payment to any one of the following persons, to wit: [Here follow the names of the eleven reporters named in said complaint] who shall claim to have been designated by the president pro tempore of the Senate of said State, now in session, as a reporter of the proceedings of said Senate, who shall claim such payment under authority of the resolution of the Senate referred to in paragraph 2 of the complaint in said action, which resolution provides for payment to each of the reporters so designated who shall be certified by the president pro tempore of the Senate, to have continuously attended upon the Senate during the present legislative session. And that you, Costello Lippitt, as Treasurer of the State of Connecticut, be and are hereby restrained and enjoined from making any payment to any of the persons above named, which payment shall be, by authority of the said resolution of the Senate, claimed by such person by reason of his having been designated as such reporter and having attended upon the Senate.”</p> <p>It was stipulated, for the purposes of argument upon said application for a temporary injunction, that each of said designated reporters was employed by the owner of the newspaper for which he reports; and that he owed no duty to the Senate, unless by reason of said rule 27.</p> <p>On the 12th of September, 1911, the Senate passed the following resolution: “Resolved by this Assembly: Senate Rule Number 27, adopted April 4, 1911, is hereby repealed and rescinded, and all appointments made under said Rule by the President pro tern, of the Senate are hereby declared null and void.”</p> <p>Afterward, during said day, the Senate passed the following resolution, known as resolution No. 133: “Resolved by the Senate: The treasurer of the State of Connecticut is hereby ordered and directed to pay the sum of three hundred dollars to each of the following named persons for special services: [Here follow the names of the same eleven reporters named in said temporary injunction order].”</p> <p>Immediately after the passage of resolution 133, there was filed in the office of the comptroller, by or in behalf of each of the eleven named reporters, a bill in these words: “To special services to the Senate as reporter, $300.” Eight of said bills appear to have been sworn to as correct by the respective claimants. One of the other three was sworn to by the attorney for said reporters, and the remaining two by another of said reporters than the one in whose behalf the bills were made out.</p> <p>With these bills there was presented to the comptroller a copy of said resolution 133, certified to by the secretary of State, which, by direction of the comptroller, was registered in the comptroller’s books, and was endorsed, “Registered in the office of the Comptroller under the provisions of § 129 of the General Statutes.”</p> <p>Across the face of a blank form of order on the treasurer, the deputy-comptroller wrote the following: “The attached order of the Senate for $3,300 is duly registered in this office.” This writing was attached to the copy of resolution 133, and delivered to said reporters, to be presented to the treasurer; and said copy and said written statement of the comptroller were immediately presented to the treasurer, who thereupon paid to each of said reporters the sum of $300.</p> <p>The usual course of business in disbursing State money was for the comptroller to draw his order on the treasurer, and for the treasurer to pay it. The method by which these reporters were paid was an unusual and long-disused one.</p> <p>Prior to September 12th,- the comptroller inquired of the Attorney-General what effect upon the injunction the rescission of rule 27 would have, and was informed that it would vacate it.</p> <p>On the 6th of October, 1911, the plaintiffs filed petitions in the Superior Court, setting forth the averments of said original complaint; the terms of the order of the temporary injunction, and the other facts above stated; and praying that the defendants Bradstreet, comptroller, and Lippitt, treasurer, be adjudged guilty of contempt of court, and be punished therefor. The defendants Bradstreet and Lippitt appeared and filed their answers, denying, among other things, that their acts were in disobedience of said temporary injunction or in contempt of court.</p> <p>On November 28th, 1911, the defendants moved the court to erase said original action and proceedings from the docket for want of jurisdiction of the parties. The court denied said motion, and the defendants excepted.</p> <p>Upon the hearing of the applications, the plaintiffs claimed that the facts above stated showed that the reporters claimed payments under rule 27; that the payments made were made under that rule; and that said acts of the comptroller and of the treasurer were in violation of the injunction order.</p> <p>The court, at said hearing, found, among other facts, that the defendants had no intention of violating or disregarding said temporary injunction, but believed the statement of the Attorney-General that the force of the injunction was expended by the repeal of rule 27.</p> <p>The Superior Court overruled the claims of the plaintiffs, and held that neither of the defendants had violated the injunction order.</p> <p>The plaintiffs allege, as one of their reasons of appeal, that the conclusions of the trial court are not supported by the facts set forth in the finding.</p>

<p>A motion to correct should ask to have those paragraphs of the finding which are complained of stricken out.</p> <p>If an examination of the record discloses that there was evidence from which the Superior Court could reasonably have made its finding of facts, a motion to correct will be denied.</p> <p>When a deed which has never been delivered is unlawfully taken and recorded, an action will lie to obtain a reconveyance of the land.</p>

Application by the city of Bristol, under a Special Act (16 Special Laws, p. 339, § 3), for the appointment of a committee to appraise the value of the plant, property, and franchises of the Bristol Water Company, which said city desired to purchase for the purpose of supplying its inhabitants with pure water, brought to the Hon. William S. Case, a judge of the Superior Court; after a full hearing on defendant's plea to the jurisdiction said judge dismissed the application,…

<p>Application in the nature of an appeal from tbe action of the board of relief of the town and city of Hartford in striking from the tax list of the defendant, the House of the Good Shepherd, certain property owned by it which the assessors of said town and city had set in the October, 1909, list at a valuation of $15,000, brought to and tried by the Superior Court in Hartford County, Reed, J.; facts found and judgment rendered confirming the action of the board of relief, and appeal by the plaintiff.</p>

<p>An assignment of error should allege error on the part of the trial court, and should also point out the particular parts of the charge complained of.</p> <p>If no objection is made to the form of an appeal, questions inartificially raised by it will be considered when error is apparent.</p> <p>A demurrer is not a proper form of pleading for raising the question of jurisdiction.</p> <p>When each of a number of counts is for the recovery of a claim of less than $1,000, even though the aggregate be in excess of that sum, all are properly joined in one action returnable to the Court of Common Pleas.</p> <p>A receipt in full is pleadable in bar as a discharge of the entire debt, although given upon payment of only a part.</p> <p>The material alteration, after delivery, of an instrument given to evidence a particular fact prevents it being adduced in proof of that fact.</p> <p>That one has destroyed by his own improper act the legal effect of certain evidence does not prevent his proving the issue by other evidence.</p> <p>It is the duty of the trial court to submit to the jury the questions of fact presented by the pleadings and the evidence, even though unaware that either of the parties desires the jury further instructed; a party- is not required to request the court to charge that certain issues exist, or that they are important issues.</p> <p>In an action for money loaned, the first defense set forth that the plaintiff had accepted a certain conveyance in satisfaction, and the second defense that the plaintiff had given a receipt in full. It appeared, however, that the defendant had altered the receipt by inserting the word “Mrs.” before his own name, in order to affect another suit. Held:—</p> <p>1. That the alteration was a material one, since it made the receipt read as a discharge of another person than the defendant who pleaded it.</p> <p>2.. That the receipt was void, but that other evidence might be used to establish what was intended to be proved by it.</p> <p>3. That the court should have submitted to the jury the issues raised by the first defense, since the jury might have been led to understand that, the receipt being void, the agreements made in connection with it were also void.</p>

Action for the conveyance of real estate claimed to belong to the plaintiff, but standing in the name of the defendant upon the land records of the town of Canton, brought to and tried by the Superior Court in Hartford County, Greene, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

<p>Where a plaintiff in her complaint sets up as the defendant’s only delict its negligent failure to keep the sidewalk of one of its highways in a reasonably safe condition, she ought not to be allowed to claim that upon the facts shown she was also entitled to recover upon the ground of a violation by the defendant of a duty not governmental, but resting upon a contractual obligation in connection with the construction of certain sewers causing the defect in the sidewalk, assumed by the city by virtue of its acceptance of its charter, because the complaint contains no suggestion of such a cause of action.</p> <p>Even if a city does assume such a contractual duty, the rule of duty and measure of liability do not differ from those which the statute attaches to the performance of the governmental duty of caring for highways, to wit, that of using reasonable care.</p> <p>The subordinate facts found by the trial court held, to support its ultimate conclusion that reasonable care was exercised by the defendant.</p>

Action to foreclose a mortgage, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; the court overruled plaintiff’s demurrer to the answer, and rendered judgment for the defendant, from which the plaintiff appealed.

Appeal by a resident and taxpayer from the action of the county commissioners of Fairfield County in granting the transfer of a license to sell intoxicating liquor to one Edward Burke, licensee, taken to and ' tried by the Superior Court in said county, Ralph Wheeler, J.; facts found and judgment rendered vacating and setting aside the action of the county commissioners, from which said Burke 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 Williams, J., who directed the jury to return a verdict for the defendant, from the judgment upon which the plaintiff appealed.

Action to recover damages for the destruction of the plaintiff’s automobile through collision with a trolley-car of the defendant, alleged to have been caused by its negligence, brought to the Superior Court in New London County and tried to the jury before Shumway, J.; verdict for the plaintiffs for $1,100, which the trial judge set asidé as against the evidence, and appeal by the plaintiffs.