Volume 89 — Connecticut Reports

<p>Action to recover damages for personal injuries caused by the bite of a cat while trespassing upon the plaintiff’s premises, whither the animal was permitted to go through the alleged carelessness and negligence of the defendants, brought to the Superior Court in New Haven County and tried to the jury before Williams, J.; verdict and judgment for the defendants, and appeal by the plaintiff.</p>

<p>Petition to determine whether certain land covered by the waters of New Haven harbor and used for the cultivation of oysters was a natural oyster-bed, as contended by the petitioner, or was the private property of the respondent, The Sealshipt Oyster System, brought to the Board of Shell Fish Commissioners and thence by appeal of the petitioner to the Superior Court in New Haven County; the court, Holcomb, J., found the facts and rendered judgment in favor of the petitioner, from which the respondent appealed.</p>

Action to recover damages for personal injuries sustained by the plaintiff while employed in the defendant’s stone quarry, which were 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 and judgment for the plaintiff for $700, and appeal by the defendant.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to and tried by the Superior Court in New Haven County, Reed, Jfacts found and judgment rendered for the plaintiff for $1,750, and appeal by the defendant. The complaint contained two counts.

Action to recover the amount of a loss under a policy of fire insurance issued by the defendant, brought to and tried by the Superior Court in Fairfield County, Curtis, J.; facts found and judgment rendered for the plaintiff for $2,093, 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 Haven County and tried to the jury before Williams, J.; verdict and judgment for the defendant, and appeal by the plaintiff. The plaintiff was employed in the defendant’s factory as a pressman, and was injured by the punch falling on his hand.

Action to recover damages for breach of contract to build and deliver a gasoline cruiser at a prescribed date, brought to and tried by the Superior Court in Fairfield County, Bennett,./.; facts found and judgment rendered for the plaintiff for $1,210, and appeal by the defendant.

Suit to foreclose a judgment lien, brought to and tried by the Superior Court in New London County, Reed, J.; facts found and judgment rendered for the defendants, from which the plaintiff appealed.

Suit to foreclose a mortgage of real estate and to obtain a deficiency judgment, if necessary, against the defendant, who was alleged to have assumed, as grantee, the payment of the mortgage note, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff, from which the defendant appealed.

Action to recover damages for personal injuries alleged to have been caused by the defendants’ negligence, brought to the Superior Court in New Haven County where the plaintiff’s demurrer to the defendants’ second defense, which set up alleged written releases of the plaintiff’s cause of action, was overruled (Gager, J.) and said defense held sufficient, and, upon the plaintiff’s refusal to plead further, judgment was thereafter rendered (Burpee, J.) for the defendants, from…

Action by the indorsees of a promissory note against the indorser, brought to and tried by the Superior Court in New London County, Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action against the principal and surety upon a bond given in substitution for a mechanic’s lien, brought to the City Court of Hartford and tried to the jury before Bullard, J.; verdict for the plaintiff for $828, which was reduced by remittitur to $785, to correspond with the ad damnum clause, and from the judgment thereon the defendants appealed.

<p>Parties may agree in advance to pay a stipulated sum for a breach of their contract, and such a provision will be regarded and enforced as one for liquidated damages, provided, first, it appears that the parties so intended; second, that the situation was one in which the anticipate^ resultant damages would be uncertain in amount or difficult to prove; and third, that the sum agreed upon was reasonable, that is, not greatly disproportioned to the presumable loss or injury.</p> <p>The standard of measurement in cases of this character is not the plaintiff’s actual loss or injury as shown by the event, but such as might reasonably have been anticipated by the parties themselves at the time their contract was made.</p> <p>In the present case the defendant, who owned and carried on a butter and egg store on Main Street in Hartford, the gross receipts of which amounted to $10,000 or more a year, sold out his business to the plaintiff for $800, and agreed not to engage in that business within a prescribed distance on Main Street for a period of five years, “under the sum of $2,000 which is to be as liquidated damages.” Within six weeks thereafter the defendant broke his agreement by opening and maintaining a store for the sale of butter and eggs almost directly opposite the plaintiff’s place of business. Held that in view of the volume of business done, and of the period during which the plaintiff was entitled to be free from the defendant’s competition in that locality, it certainly could not fairly be said that the sum of $2,000, agreed upon as liquidated damages, was unreasonable.</p> <p>Provisions for the payment of a stipulated sum in the event of a breach of a party’s promise not to engage in a particular business or profession in a given locality, have generally been construed by the courts as agreements for liquidated damages; and a contrary conclusion has been reached only where it was manifest either that the stipulated sum was unreasonable, or that the parties intended to fix a penalty. This disposition of the courts to leave the matter to the decision and agreement of the parties, is the logical result of the uncertainties and well-nigh insurmountable difficulties encountered in an effort to estimate damages in cases of this character.</p>

Action to recover damages for injuries to a pumping-station under erection by the plaintiff for the.city of Hartford, which were alleged to have been caused by an explosion due to the negligence of the defendant, brought to the Superior Court in Hartford County and tried to the jury before Greene, Jverdict and judgment' for the plaintiff for $1,804, and appeal by the defendant.

Action by an indorsee against the maker of a promissory note to recover the amount thereof, brought to the Court of Common Pleas in Hartford County and tried to the jury before Markham, J.; the trial court directed a verdict for the plaintiff for $624, and from the judgment thereon the defendant appealed.

Action to recover for services as a real-estate broker, brought to the Court of Common Pleas in Hartford County and tried to the jury before Smith J.; verdict for the plaintiff for $900, which the trial court set aside as against the evidence, from which action the plaintiff appealed.

Action of interpleader to determine the rights of the respective defendants in and to a sum of money in the hands of the plaintiff, brought to and tried by the Superior Court in Hartford County, Bennett, J.; facts found and judgment rendered in favor of the claimants J. H. and W. E. Cone and the Hampden Lumber Company, from which the Edwin Taylor Lumber Company appealed.

<p>Appeal from an award by the Compensation Commissioner of the first district under the Workmen’s Compensation Act of 1913, taken to and tried by the Superior Court in Hartford County, Bennett, having found that no error was committed by the commissioner in the application of the legal principles pertinent to the cause, judgment was rendered dismissing the case, from which the respondent appealed.</p>

<p>Chapter 138 of the Public Acts of 1913, commonly known as the Workmen’s Compensation Act, in Part A abolished the so-called common-law defenses theretofore available by an employer in an action by an employee for personal injuries, but provided in § 2 that such abrogation should not affect actions against an employer having regularly less than five employees, nor should it apply to “any employer” who should have accepted Part B of the Act, which prescribed a scheme of compensation for injured workmen in lieu of an action for damages. Held that the distinction drawn in Part A between the employers of less than five and other employers, did not extend to Part B, but that all employers, without regard to the number of hands regularly employed by them, came within the scope of Part B and might accept or reject the compensation scheme therein prescribed at their option; although the employers of less than five, not being deprived of their common-law defenses, might not have the same incentive or inducement to accept the Act that employers of a larger number would have.</p> <p>Section 30 of the Act required every employer subject to Part B to insure his full liability, if he did not furnish to the commissioner satisfactory proof of his solvency and financial ability to pay compensation to his injured employees; and § 42 declared that an employer who had accepted Part B and afterward failed to comply with the provisions of § 30, should thereby “forfeit all benefits thereunder and shall be hable as if he had not accepted the same.” Held that the “benefits” of which the employer was deprived by his failure to conform to § 30, was his immunity from a common-law action for damages; but that such failure of the employer did not deprive the employee who had accepted Part B óf all his rights and benefits under it, but left him in a situation in which he could either claim compensation under the Act, as in the present ease, or pursue his remedy by an action at common law as modified by Part A.</p> <p>The intention of the legislature in passing an Act is to be ascertained from the words it has used in the statute, when read in the light of the circumstances surrounding the legislative body at the time, and in connection with the history and progress of kindred legislation.</p> <p>Upon an appeal from the finding and award of the compensation commissioner, costs lie where they fall, that is, each party is to pay his own.</p> <p>A record fee is properly exacted in such a proceeding.</p>

Action by a tenant to recover damages for personal injuries alleged to have been caused by the negligence of her landlord, brought to and tried by the Court of Common Pleas in Fairfield County, Coughlin, Acting-Judge; facts found and judgment rendered for the plaintiff for $700, and appeal by the defendant.

Action upon the so-called common counts to recover an alleged balance due on a building contract, and the reasonable worth of extra labor and materials furnished, brought to and tried by the Superior Court in New Haven County, Tuttle, J.; facts found and judgment rendered for the plaintiff for $3,066, and appeal by the defendant Mary E. O’Neill, executrix.

Action to recover the amount of a loss under a policy of fire insurance, brought to and tried by the City Court of Waterbury, Thoms, J., and thence, by defendant’s appeal, to the District Court of Waterbury and tried to the court, Peasley, J.; facts found and judgment rendered for the plaintiff for $500 damages, and appeal by the defendant.

<p>Action to recover a tax of one per centum upon the market value of the capital stock of the defendant corporation, brought to and reserved by the Superior Court in Hartford County, Gager, /., upon the plaintiff’s demurrer to the defendant’s answer, for the advice of this court.</p>

Suit to determine whether the inheritance tax upon certain pecuniary legacies given by the will of Mary E. P. Sherman, late of Bridgeport, deceased, should be deducted from the amount of the several legacies respectively, or should be paid from the residuary estate, brought to and reserved by the Superior Court in Fairfield County, Burpee, J., upon an agreed statement of facts, for the advice of this court.

Action by the indorsee against the maker to recover upon two promissory notes, brought to the Court of Common Pleas in New Haven County, where a verdict was rendered for the plaintiff, after which the cause was erased from the docket (Wolfe, J.) for lack of jurisdiction, from which judgment the plaintiff appealed.

Action by an attorney at law to recover the reasonable worth of professional services rendered by him, brought to and tried by the Superior Court in Fair-field County, Tuttle, J.; facts found and judgment rendered for the plaintiff for $2,883, and appeal by the defendant Ross.

Suit to quiet and settle the title to real estate.claimed to be owned by the plaintiff, and to secure a specific performance by the defendant Maury of his contract to buy the property, and also for other relief, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the plaintiff, from which the defendant Maury appealed.

<p>One who merely receives another’s money to invest, so that it will yield a larger income, is an agent and not a trustee.</p> <p>Those who knowingly aid an agent or trustee in diverting property from the purpose for which he holds it, are accountable for it if it can be traced to their possession.</p> <p>Although buying and selling stock on margins is a lawful business for a broker, provided the transactions are actual purchases and sales, yet since an agent, given money to invest, is not thereby authorized to use it in speculations of that sort, a broker who, knowing him to be such, assists him therein, is responsible to the principal for - any loss. But where, as in the present case, there is no evidence that the defendant brokers had actual knowledge of the agency, and the facts established by the evidence are not such as to impute knowledge to them, they cannot be held responsible for losses incurred in such speculation.</p> <p>Where securities show on their face that they belong to a trust estate, one who receives them is charged with knowledge of such fact; but the mere opening of an account with a banker or broker, by a person in his own name as “trustee” or “agent,” does not put the depositary upon inquiry as to whether the fund was in fact the property of another, since it is not unusual for a person to so deposit his own money.</p>

Action to recover the balance of the purchase price of a player-piano sold upon the instalment plan, brought to and tried by the Court of Common Pleas in Fair-field County, Scott, J., upon the plaintiff’s demurrer to the defendants’ answer; the court sustained the* demurrer and, upon the defendants’ refusal to plead over, rendered judgment for the plaintiff for $393, from which the defendants appealed.

Action to recover damages for an alleged assault and battery, brought to the Superior Court in New Haven County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff for $575, and appeal by the defendants. Plaintiff sued Bane Stock and his son, Mitchell Stock, for damages for an assault described in the complaint as committed by both defendants.

Suit to establish title to real estate in the plaintiff, through an alleged oral trust agreement between himself and his wife, since deceased, and to enjoin the defendants, her administrator and heirs at law, from asserting any ownership therein, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled (Greene, J.) and the cause was afterward tried to the court, Burpee, J.; facts found and judgment rendered for the plaintiff, and…

Action against a fraternal benefit society to recover sick benefits, brought to and tried by the City Court of New Haven, Booth, J.; facts found and. judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for injuries to the horse, wagon and harness of the plaintiff, alleged to have been caused by the negligence of the defendant in the operation and management of one of its trolley-cars, brought to the Court of Common Pleas in Fairfield County and tried to the court, Scott, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for an alleged breach of a contract to accept and pay for patented window-locks manufactured by the plaintiff for the defendant patentee pursuant to his order, brought to the Court of Common Pleas in Fairfield County and transferred to and tried by the Superior Court in that county (Tuttle, J.) after the defendant had filed a counterclaim for $8,000 damages; facts found and judgment rendered for the plaintiff for $1,134, and appeal by the defendant.

<p>An election by the owner of a building, abandoned by the contractor, to finish the work himself pursuant to the terms of the contract, is-an acceptance of the contractor’s part performance and a waiver of the owner’s right to terminate the contract relation, and in that event the liens of the subcontractors may attach to any balance due to the general contractor; but in determining whether there is any balance, moneys expended by the owner in completing the building must be deducted from the contract price.</p> <p>General Statutes, § 4138, provides that in fixing the amount to which subcontractors’ liens attach, the owner shall be allowed payments made in good faith to the general contractor before receiving notice of such liens, but that no payments made “in advance of the time ’ stipulated in the original contract” shall be considered as made in good faith, unless notice of intention to make such payments shall have been given in writing to each person “known to have furnished materials or rendered services” at least five days before such payment is made. Held:—</p> <p>1. That payments made as the building reached its prescribed stages of completion, were not made “in advance of the time stipulated,” merely because the architect had not then issued his certificate that they were due, since the object of the statute was to afford a means of notice to subcontractors as to when payments might be expected, of which they were sufficiently advised by the contract itself and the progress made upon the building; and that an architect’s certificate was necessary only when its issue, and not the stage of the work, fixed the time of payment.</p> <p>2. That in order to preclude the owner from the benefit of payments made in advance of the time stipulated in the contract, it was necessary for those claiming liens to show that he had definite knowledge of their names and relation to the work sufficient to have given them the written notice contemplated by the statute; and that proof that he merely knew, in a general way, that the contractor was not doing the work with his own hands nor with his own materials, was not enough to discharge this burden.</p> <p>The owner of a building abandoned by the contractor incurs no liability for a lien simply because he does not take possession of plumbing supplies left upon the premises.</p>

Suit to determine the construction and validity of certain provisions of the will of Cynthia M. Merrill, late of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Case, J., upon the facts alleged in the complaint, for the advice of this court. Cynthia M. Merrill, late of New Haven, died August 29th, 1887, leaving an estate consisting of both real and personal property, and a will and codicil duly probated.

Application of the plaintiff and appellant to this court, for an order requiring the trial judge (Burpee, J.) to make and file a finding of facts.

Action to recover damages for causing the death of the plaintiff’s intestate by the alleged negligence of the defendants, brought to and tried by the Superior Court in Litchfield County, Webb, J., upon a demurrer to the substituted complaint; the court sustained the demurrer and rendered judgment for the defendants, from which the plaintiff appealed.

<p>Action in the nature of trover, with counts to recover moneys alleged to have been obtained from the plaintiff’s intestate by means of fraud and undue influence, brought to the Superior Court in Middlesex County and tried to the jury before Reed, J.; verdict for the plaintiff for $9,728, which the trial court, upon motion of the defendant, set aside as against the evidence, and from this action the plaintiff appealed.</p>

Action to recover the contract price of advertising for the defendants upon the drop-curtain of a certain theatre, brought to and tried by the City Court of Waterbury upon a demurrer to the answer; the court, McMahon, Associate-Judge, overruled the demurrer and afterward rendered judgment for the defendants, from which the plaintiff appealed.

.Action in the nature of assumpsit for money had and received, brought before a justice of the peace and thence by the defendants’ appeal to the Court of Common Pleas in Hartford County and tried to the court, Smith, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Action to recover damages for slander, brought to the Superior Court in New Haven County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff for $200, and appeal by the defendant for alleged errors in the charge of the court.

<p>Appeal by a taxpayer from the action of the county commissioners of New Haven County in granting a removal permit to a retail liquor dealer in the town of Waterbury, taken to and tried by the Superior Court in New Haven County, Greene, J.; facts found and judgment rendered vacating and setting aside the action of the county commissioners, from which the applicant for the permit appealed.</p> <p>Frank Matusavage, licensed to sell intoxicating liquors at 699 Bank Street in Waterbury, made application to the county commissioners for the transfer of his license, then having five months to run, to another location upon a different street but not far distant from his licensed place of business, and only one hundred and twenty feet from the corner of Bank Street. Brady and others filed a remonstrance, assigning as reasons (1) that due notice of the hearing had not been given; (2) that the place was unsuitable as being in a purely residential neighborhood; (3) that a sufficient number of licensed places already existed in the vicinity; and (4) that the place was otherwise unsuitable. The application having been granted by the commissioners, this appeal was taken by Brady. The Superior Court found that the applicant was an unsuitable person, that the place for which a license by transfer was desired was unsuitable, and that the county commissioners had acted in excess of their power and illegally in granting the application, and thereupon set aside and vacated their permit. The court refused to find that due notice of the hearing had not been given, or that the place to which the permit was asked was in a purely residential neighborhood. The third reason of appeal was not passed upon. The finding of unsuitability of place rested upon grounds other than those embodied in the express prohibitions of statute.</p>

<p>Under our statutes (General Statutes, §§ 2671, 2734, chapter 106 of the Public Acts of 1905 and chapters 62 and 98 of the Public Acts of 1913) the purchaser of a liquor license at an execution sale takes it subject to the burden of satisfying the county commissioners that he is a suitable person and that the place continues to be a suitable one for the sale of liquors; but in other respects he acquires all the rights of the licensee in the unexpired term and may therefore appeal from the refusal of the county commissioners to consent to a transfer of the license, based upon their view of the unsuitability of the place.</p> <p>There is no conclusive presumption that a place once found to be suitable for the sale of intoxicating liquors continues so for the entire term of the license.</p> <p>Where the place has become unsuitable since the license was granted, that fact is a sufficient reason for refusing to assent to a transfer of the license: for it would be an idle ceremony to allow the transfer in one proceeding and then revoke the license in another.</p> <p>The suitability of the place is ordinarily to be determined by the county commissioners as an inference or conclusion of fact.</p>

Action of replevin for household goods, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Actions to recover damages for injuries sustained by the respective plaintiffs, through the alleged negligence of the chauffeur of the defendant in the management of his motor-truck, brought to the Borough Court of Greenwich and thence by the defendant’s appeal to the Court of Common Pleas in Fairfield County and tried to the court, Walsh, Acting-Judge; facts found and judgment rendered for the plaintiff Coffin to recover $599, for injury to his automobile, and for the…

Action treated by the parties and the court as one of interpleader to determine the rights of the respéctive defendants in and to a sum of $3,000 in the hands of the plaintiff, brought to and tried by the Superior Court in New Haven County, Gager, J.; faets found and judgment rendered in favor of the defendant Annie A. O’Loughlin, from which the defendant Mary Coogan appealed.

Action to recover damages for the alleged wrongful refusal of the defendants to accept and pay for certain machinery, pursuant to their contract with the plaintiff, brought to and tried by the City Court of New Haven, Booth, J.; facts found and judgment rendered for the plaintiff for 8385, and appeal by the defendants.

<p>Action to recover damages for injuries to the plaintiff’s premises alleged to have been caused by a change of the highway grade,-brought to the Superior Court in New London County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff for $50, from which she appealed.</p>

Action to recover for merchandise alleged to have been sold to the defendant, brought to the Court of Common Pleas in New London County and tried to the jury before Waller, J.; verdict and judgment for the plaintiff for $130, and appeal by the defendant.

Action to recover damages for injury to the brick wall of the plaintiff’s building caused by the discharge upon and against it of the rain-fall from the roof of the defendant’s adjoining building, brought to and tried by the Superior Court in New London County, Shumway, J.; facts found and judgment rendered for the plaintiff for $200, and appeal by the defendant. In this court the appellee filed a plea in abatement to the appeal, to which the appellant demurred.

Appeals by the defendant from awards of the Compensation Commissioner of the second district in favor of the plaintiffs, taken to and reserved by the Superior Court in New London County, Bennett, J., upon the findings of the commissioner, for the advice of this court. The decedents, Wallace J. Hodges and George Mars-dale, were citizens of Connecticut. The respondent, the Thames Towboat Company, was and is a Connecticut corporation located in New London, Connecticut.

Action upon a contractor’s bond for the due and proper performance of certain work in connection with the excavating, laying, and back-filling of cast iron gas-pipes and their fixtures, brought to the Superior Court in Hartford County where the plaintiff was non-suited in a trial to the court, Gager, J., and from the refusal of the trial court to set aside this judgment the plaintiff appealed.

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, as exempt from taxation, an item of eighteen acres of land added thereto by the assessors, brought to and tried by the Superior Court in Hartford County, Gager, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Petition for a new trial upon the ground of newly-discovered evidence, brought to and tried by the Superior Court in Hartford County, Case, J., upon a demurrer to the petition; the court sustained the demurrer and rendered judgment for the respondent, from which the petitioner appealed.

<p>Action 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 Reed, J.; verdict and judgment for the plaintiff for $4,000, and appeal by the defendant.</p>

Suit for art injunction to restrain the defendant from selling certain real estate to which he claimed title by virtue of the foreclosure of a mechanic’s lien, and for other equitable relief, brought to and tried by the Superior Court in Hartford County, Gager, J.; facts found and judgment rendered for the plaintiffs, declaring that the certificate of title by the alleged foreclosure was void, from which the defendant appealed.

Information for manslaughter, brought to the Superior Court in Hartford County and tried to the jury before Burpee, J.; verdict and judgment of guilty, and appeal by the accused.

Appeals from orders and decrees of the Court of Probate for the district of New Haven appointing an administrator de bonis non on the estate of Henry O. Hotchkiss, late of New Haven, deceased, and disallowing a supplemental administration account and appointing distributors of said estate, taken to and tried together by the Superior Court in New Haven County, Case, J.; facts found and judgment rendered reversing and setting aside the action of the Court of Probate in each…

Application in the nature of an appeal from the action of the board of relief of the defendant town in refusing to reduce either the number of acres of land' listed by the assessors in the name of the plaintiff, or the valuation placed thereon by them, brought by the plaintiff to the Superior Court in New London County and tried to the court, Bennett, J., upon a demurrer to the second defense; the court overruled the demurrer and, upon the refusal of the plaintiff to plead…

Replevin for lumber, brought to and tried by the Superior Court in Tolland County, Tuttle, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. On August 6th, 1911, William H. King, a resident of Springfield, Massachusetts, was the owner of a lot of land containing about one hundred acres, lying in a part of the town of Stafford in this State which is little frequented and considerably remote from any center of population.

January Term, 1915. Actions against directors •oL a savings-bank to recover losses sustained by the bank through the long-continued defalcations of its treasurer, alleged to have occurred because of the negligence and lack of supervision of the defendants, and also for negligently and illegally declaring and paying. dividends which had not been earned, brought to and tried by the Superior Court in Hartford County, Bennett, J.; facts found and judgment rendered for the…

Action by a builder to foreclose a mechanic’s lien, which was claimed to be invalid in a cross-complaint, brought to and tried by the Superior Court in Hartford County, Gager, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

<p>All orders of the Public Utilities Commission must find their justification in public convenience, necessity or safety; for the maintenance and protection of the public welfare was the cardinal purpose of the Act which created the Commission and invested it with a larger control and supervision of public service corporations. Accordingly, an enactment which authorizes the Public Utilities Commission ‘‘to determine” whether a street-railway company shall lay one or two tracks on a new highway bridge (16 Special Laws, p. 1144, § 4), will be construed to imply a determination reached in the usual way, after a hearing and finding of public convenience, necessity or safety, and not one made arbitrarily and at the mere will or caprice of the Commission.</p> <p>The General Assembly itself can determine the number of street-railway tracks which shall be laid over a bridge, or it can delegate the determination of that question to a commission exercising administrative and executive functions. It cannot, however, delegate legislative discretion to an administrative tribunal.</p> <p>The primary standard or test having been prescribed by the legislature, it may transfer to an administrative tribunal the executive duty of carrying out the purpose and policy of the enactment; and in the discharge of this duty such tribunal is bound to give a hearing to all parties in interest.</p>

<p>The question whether a street-railway company shall lay one or two tracks on a new highway bridge, and the kind or type of rails it shall use, are purely administrative matters, the decision of which by the Public Utilities Commission—unless made without evidence or plainly contrary to the evidence—-is final and conclusive. But the apportionment of the cost of such a bridge between the municipality and the street-railway company, upon the basis of what is equitable, as required by chapter 207 of the Public Acts of 1911, presents a judicial question. In aid of its proper solution this court can define the powers of the Superior Court and the extent of its duty in fixing the equitable share or portion which should be paid by the street-railway company, and can also determine whether, in a given case, these powers have been exceeded or transgressed, or these duties neglected or misapprehended. It can also decide what considerations are or are not relevant and material in forming a judgment as to what is equitable. Beyond this, however, this court cannot go, unless the judgment of the Superior Court be clearly inequitable; for within these limitations its judgment is final.</p> <p>What is equitable in a given case under this statute is what is fair and just under the circumstances of that case.</p> <p>In the present case the Superior Court disregarded the order of the Public Utilities Commission for a double track over the Norwalk River bridge, and estimated the amount which the street-railway company should pay toward the expense of the new bridge at what it would cost to strengthen the bridge for a single track only, and confined even this estimate to the additional cost of strengthening that portion of the bridge over which the cars were operated. Held that in this respect the court erred: that it was bound to include, in its estimate, the element of cost involved in strengthening the bridge for a street-railway service of two tracks, and the cost of strengthening not merely the part over which the railway operated but the entire bridge; and furthermore, that the court erred in construing the Act of 1911 as limiting the street-railway company’s share to the mere cost of strengthening the bridge, instead of extending its obligation, as the court should, to cover the company’s equitable portion of the cost of constructing the new bridge.</p> <p>While a municipality cannot build a bridge in excess of the public and street-railway requirements in size, design, form and ornamentation, and compel such railway, under the Act of 1911, to pay any part of such excessive cost, it may nevertheless provide for future as well as present railway and public needs in determining the character, strength, form, design and cost of the structure.</p> <p>In determining the equitable share of the street-railway company, the cost to the company of paving should not be considered—it being governed by General Statutes, § 3837—nor the cost of rails, ties, ballast, wires, cables and other special work which are but the ordinary incidents of putting the railway in condition for operas tion. Moreover, thé amount, if any, contributed by the State to the construction of the bridge, should not be considered in reduction of the street-railway company’s share.</p> <p>The situation in the present case reviewed, and considerations pointed out which would be helpful to a rightful decision of the question upon a retrial of the cause.</p>

<p>A libel is a false and malicious publication concerning a person, which exposes him to public ridicule, hatred or contempt, or hinders virtuous men from associating with him.</p> <p>In an action for libel the plaintiff may properly allege in his complaint, by way of innuendo, that the publication in question conveyed a defamatory meaning to its readers, provided the article is reasonably capable of such an interpretation or implication. It is only when such a meaning is clearly excluded, that the court can withdraw the case from the consideration of the jury, or rule that the publication is not libelous as matter of law.</p> <p>Alleged errors must be confined to those claims of law which were raised in the trial court, were decided adversely to the appellant, and are specifically assigned in his reasons of appeal.</p> <p>Unless the record discloses that a material fact has been found without evidence, or that some undisputed fact has been omitted, the finding will not be corrected on appeal.</p>

Action to foreclose a mechanic’s lien, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant Brush.

On the first Monday of October, 1914, Mr. Waterbury was elected town clerk of the town' of Stamford for the term of two years from the first Monday of January, 1915. On March 20th, 1915, Mr. Waterbury died, and the selectmen of Stamford appointed a town clerk to fill the vacancy.

Information for theft, 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.

<p>In an action to recover for structural iron and steel furnished by the plaintiff 'to the defendant, a building contractor, pursuant to a written agreement between them, the parties were at issue as to whether damages for the plaintiff’s delay in the erection of certain “sidewalk lights” were to be allowed under article seven of their agreement, which called for one twentieth of one per cent of the total amount of the contract for each day’s delay upon the part of the plaintiff, or under article eleven, which stated the total amount to be paid provided the deliveries were made as stipulated, and, in case they were not, a smaller sum, plus a penalty of $5 a day for each day’s delay. Held that the trial court correctly ruled that article eleven had reference only to the structural steel and iron which the plaintiff was to deliver for the construction of the several floors and roof of the building, and that damages for delay in completing the building due to a failure to seasonably erect the sidewalk lights were recoverable under the provisions of article seven.</p> <p>A written instrument is to be construed as a whole, and effect is to be given, if possible, to all its provisions.</p> <p>This rule applies as well to instruments partly printed and partly written as to those wholly printed or wholly written.</p> <p>Clauses of a written instrument which are apparently inconsistent should be reconciled, if that can be accomplished by any reasonable construction, since it is not to be assumed that the parties intended to insert repugnant provisions.</p>

Action to recover rent guaranteed by the defendant, brought to the City Court of New Haven and tried to the jury before Booth, J.; verdict and judgment for the plaintiff for $335, and appeal by the defendant. From the undisputed, material facts, it appears that on October 8th, 1910, one Rose A. Ward leased to Jacob Mann certain premises known “as a stable” in the city of New Haven.

Action by a judgment creditor of a Connecticut corporation against one of its nonresident stockholders who was alleged to have assented to a reduction of its capital stock whereby it was rendered insolvent, brought to the Superior Court in New Haven County and tried to the court, Williams, J., after the decease of the original defendant and the revival of the case against his personal representatives; facts found and judgment rendered for the defendants, and appeal by the…

Action to recover the amount of a promissory note, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, Jfacts found and judgment rendered for the defendant, and appeal by the plaintiff. The defendant, also, appealed from certain findings of fact as made by the trial court.

Suit to quiet and settle the title to certain real estate in the town of Westport adjoining Long Island Sound, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the plaintiffs, and appeal by several of the defendants.

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 Haven County and tried to the jury before Burpee, Jverdict and judgment for the defendant, and appeal by the plaintiff. This action was brought by the plaintiff to recover damages for personal injuries sustained while he was a brakeman.

Action to recover moneys alleged to be withheld by the defendant as treasurer of a voluntary association to whose rights the plaintiff corporation had succeeded, brought to and tried by the Superior Court in New Haven County, Tuttle, J.; facts found and judgment rendered for' the defendant, and appeal by the plaintiff.

<p>One who employs an independent contractor to do certain work is not liable, as a general rale, for injuries to others caused by the negligent performance of the undertaking.</p> <p>This rule, however, has several exceptions, one of which—relied upon by the plaintiff in the present case—is that the original employer becomes responsible if he interferes with the contractor and assumes control over the work himself.</p> <p>In the present case the plaintiff, a painter who was employed by an independent contractor, while at work painting at or near the bottom of an elevator shaft, received personal injuries due to the movement of the elevator. Another independent contractor was engaged in installing the elevator, and it was operated at the time of the injury by a representative of the installing company. The owner of the building and the company which was installing the elevator were made defendants. In its charge the trial court instructed the jury that the owner of the building was bound to use reasonable care to see to it that the elevator shaft remained in a safe condition so long as the plaintiff was at work in it. Held that this instruction, which must have been understood as referring to the place as unsafe solely because of the movement of the elevator, was erroneous and prejudicial to the defendant owner, inasmuch as the relation of master and servant, to which such a direction would have been appropriate, did not exist’ between the parties; and that no such duty as the instruction called for rested upon the owner of the premises, apart from any that might arise from his alleged express assurance to the plaintiff that the elevator should not be run.</p> <p>The owner of premises is not responsible to an independent contractor for injury from defects or dangers known to, or which should have been known to, the contractor; but if the defect or danger is hidden and is known to the owner but not to the contractor, and is not such an one as the latter ought to be aware of, it then is the duty of the owner to warn the contractor, otherwise he is liable for the resultant injury; and this rule applies to the subcontractor as well as to the general contractor, and to the servants of each.’ For injury caused by his own negligence the owner of premises is liable to such servants, whether he remain in partial use of the premises or not.</p> <p>The jury were further instructed in the present case that if the representative of the independent contractor operated the elevator at the request of a servant or agent of the defendant owner in order to facilitate his business, such representative was acting for and in behalf of the defendant owner, and if in so doing he was negligent and the plaintiff was free from contributory negligence, the latter was entitled to recover. Held that this was practically equivalent to an instruction that the defendant owner was negligent, and was erroneous for that reason; and furthermore because it did not appear from the record that the servant or agent of the defendant owner had any authority to make the request, nor that in acceding to it the representative of the independent contractor had ceased to act as such representative and had become the servant or agent of the defendant owner.</p> <p>The parties were at issue as to the way in which the injury occurred, the plaintiff claiming that his foot was crushed by the descending weights as the elevator rose to the top floor of the building, while the defendant owner contended that the plaintiff observed the weights as they came down the runway and avoided them, and was injured shortly afterward as the weights rose and that such injury was due to his own negligence. This difference was referred to by the trial court only in that part of its charge which related to the claim of contributory negligence, where it was suggested to the jury that they might not find it of much importance whether the plaintiff was injured by the descending or ascending elevator weights. Held that this instruction, as the jury probably understood it, virtually removed from their consideration a fact of great consequence as bearing upon the question of contributory negligence.</p>

Action to recover a balance due for wooden paving blocks alleged to have been sold to the defendants as partners, brought to and tried by the Superior Court in Fairfield County, Burpee, Jfacts found and judgment rendered in favor of the defendant Gaynor, who alone appeared, from which the plaintiff appealed.

Applications by two trust companies acting as trustees of collateral placed in their hands to secure outstanding obligations of the Middlesex Banking Company, and a like application by the receivers of the last-named company, praying for an order defining and determining the relative rights of the receivers and of said trust companies in and to said collateral, and as to how and by whom such collateral should be collected and administered, brought to and heard by the…

Action to recover for services as a broker in effecting a sale of real estate, brought to and tried by the Superior Court in Middlesex County, Gager, J.; facts found and judgment rendered for the plaintiff for $189, and appeal by the defendant. In this court the plaintiff filed a plea in abatement to the defendant’s appeal, upon the alleged ground that it was not seasonably taken; the defendant made answer, to which the plaintiff demurred.

Petition for the appointment of a committee to estimate land damages in condemnation proceedings, brought to and heard by the Hon. William S. Case, a judge of the Superior Court, upon a motion to expunge certain allegations of the answer and a demurrer to others; the judge granted the motion, sustained the demurrer, and afterward rendered judgment in favor of the petitioner, from which the respondent appealed.

Appeal by the defendant from an award of the Compensation Commissioner of the second district in favor of the plaintiff, taken to and reserved by the Superior Court in Windham County, Webb, J., upon the findings of the commissioner, for the advice of this court.

<p>The language of a will may be such as to raise a gift by implication, but in order to have that effect it must be clearly apparent from the will that such was the intent of the testator; a mere surmise that he might have so intended is not sufficient.</p> <p>In the present case the testator gave his wife the life use of two parcels of real estate, describing them in separate clauses of his will. In a later clause he gave this and other property to his sister, “subject to the life estates” of his wife. Held that inasmuch as the words quoted accurately described what the testator had previously given in his will to his wife, they could not at the same time be construed to refer to something the testator had not done, and thus be made to serve as a basis for an implied gift to his wife of a further life estate in the other property which he expressly gave to his sister.</p> <p>The testator, in clause two of his will, gave to his wife all of his property, real and personal, excepting, with other property, his “interest and shares” in a paper company of which he was president and treasurer, and by a subsequent clause he gave “all interest which I may have in” said paper company “and its shares,” to his sister. At his death the testator owned two hundred and forty-eight shares of the stock of the paper company and had claims against it for money loaned, for dividends declared but not paid, and for unpaid salary. Held that in using the expression “interest and shares,” the testator meant to indicate but one thing, and that was the right of property or share in the company property, evidenced by the stock certificates which he owned; and that the claims he had against the company passed to his wife under his bequest to her in the second clause of his will.</p>

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Tuttle, J.; verdict and judgment for the plaintiff for $1,000, and appeal by the defendant.

Action to recover damages for breaking down and removing a fence, brought by appeal of the defendant, from an adverse judgment of a justice of the peace, to the Court of Common Pleas in Hartford County and tried to the court, Smith, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover damages for personal injuries sustained in a collision upon the highway which was alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Shumway, J.; verdict and judgment for the defendant, and appeal by the plaintiff. The plaintiff and one Krupnikoff were fellow-workmen employed as carpenters in the construction of a building.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and tried to the jury before Webb, J.; the jury returned a verdict for the plaintiff for $5,500 which the court set aside as excessive upon the plaintiff’s refusal to remit the sum of $2,000, from which decision the plaintiff appealed.

Action to recover a balance alleged to be due for merchandise sold and delivered, 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 8107, and appeal by the defendant.