Volume 94 — Connecticut Reports

Action to recover damages for the alleged wrongful refusal of the defendant to deliver a carload of lumber pursuant to its agreement, brought to and tried by the Court of Common Pleas in Fairfield County, Booth, J.; facts found and judgment rendered for the plaintiffs for $374, and appeal by the defendant. From the finding the following material facts appeared: The plaintiffs were carpenters and builders in Bridgeport, Connecticut.

Appeal by the defendant from a finding and award of the Compensation Commissioner of the first district in favor of the plaintiff, taken to and reserved by the Superior Court in Hartford County, Case, J., upon the Commissioner’s finding, for the advice of this court. The finding shows that on July 30th, 1918, the deceased was employed by the defendant in Colt Park in the city of Hartford, in raking leaves.

Suit to determine the validity of claims made by the holders of outstanding debentures issued by the Consolidated Railway Company, which were alleged by the plaintiff to constitute a cloud upon the title to its properties and to prevent it from raising funds by way of mortgage, brought to and reserved by the Superior Court in New Haven County, Warner, J., upon the facts stated in the pleadings, for the advice of this court.

Application! in the nature of an appeal for relief from the action of the taxing authorities of the State in apportioning and assessing a tax of $12,593 against the plaintiff under the provisions of §§ 19 to 23 of Chapter 292 of the Public Acts of 1915, upon the alleged ground that such provisions were in violation of the Federal Constitution, brought to and reserved by the Superior Court in Hartford County, Case, J., upon an agreed finding of facts, for the advice of this…

<p>Action to recover the price of a set of books alleged to have been ordered by, and delivered to, the defendant, brought before a justice of the peace and thence, by appeal of the plaintiff, to the Court of Common Pleas in Litchfield County, and tried to the court, Woodruff, J.; the court rendered a judgment of non-suit, and from its refusal to set such judgment aside, the plaintiff appealed.</p> <p>The defendant, under date of September 2d, 1914, signed a written order, the material part of which reads as follows: “Army and Navy Magazine, Washington, D. C. Gentlemen: — Please deliver to any common carrier, addressed to me, one set of the 'Messages and Papers of the Presidents,’ . . . bound in full black leather at $59.50 per set, ... all in eleven volumes, for which I agree to pay $59.50 to the Army and Navy Magazine, or its assigns. I also agree to pay cost of transportation. . . . This order is unconditional and not subject to cancellation, or to any agreement not written on the contract. . . . 11 hereby acknowledge receipt of a duplicate of this contract and say that all representations relative to this purchase have been made in accordance with the above understanding.</p> <p>G. C. Scoville</p> <p>Business Address, Norfolk, Conn. Received payment $5.</p> <p>J. J. Swift,</p> <p>For the Army and Navy Magazine,</p> <p>Washington and New York.”</p> <p>On the same day the defendant executed and delivered to the representative of the Army and Navy Magazine, a written confirmation of this order as follows: “I hereby confirm my purchase this day of one set of Messages and Papers of the Presidents, eleven volumes, bound in full black leather, and for value received I promise to pay to the Army and Navy Magazine, of Washington, D. C. (Branch office, New York), or order, $59.50 as follows: $5 herewith, balance in the following payments; $5 on the 3 day of each month, beginning on the 3 day of Oct. 1914, payable at the Branch Office of the Army and Navy Magazine, 141-145 West 36th Street, New York, N. Y. In event that any payment as stipulated- shall not be made within twenty days thereafter, the entire balance then remaining unpaid shall at once become due and payable.</p> <p>G. C. Scoville,</p> <p>Address, Norfolk, Conn.”</p> <p>Under date of September 3d, 1914, the defendant wrote the following letter: “Army & Navy Magazine, New York, N. Y. Gentlemen: Upon consideration I find that I have no use for the books ordered Sept. 2 from your Mr. J. J. Swift. Kindly cancel this order at once. I am returning receipt given me and request you to return my check for $5.00.</p> <p>Respectfully, G. C. Scoville.” This letter was endorsed as received on September 4th, 1914. On October 16th, 1914, the defendant’s attorney wrote the Army and Navy Magazine, stating that the defendant “absolutely refuses to accept the books,” giving his reasons, which are not now material. This letter was indorsed as received October 19th, 1914.</p> <p>The complaint, in addition to the substance of these letters, alleged prompt shipment, offer of the books to the defendant by the carrier, refusal by defendant to receive the books, and stoppage of payment of the check given with the order in payment of the $5 acknowledged to have been received at the foot of the order. The plaintiff claims payment for -the entire purchase price as due him under the terms of the contract.</p> <p>In the writ the plaintiff is described as “Herbert Cecil Lewis, of the City of Washington, in the District of Columbia, doing business under, the name 'Army and Navy Magazine.’” The name of Lewis does not appear anywhere in the complaint nor in the written contracts, and upon the trial no evidence was offered with respect to the identity of Lewis and the Army and Navy Magazine.</p> <p>After the plaintiff rested his case the court granted defendant’s motion for a judgment as of nonsuit, and denied a motion to set this judgment aside; and this appeal is based solely upon the court’s action in granting the motion for judgment as' of nonsuit and in denying the motion to set aside the judgment so granted. Other necessary facts are stated in the opinion.</p>

Action to recover the amount of a joint and several bond, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the plaintiff for $800, and appeal by the defendants other than Joseph Martin. In an action for damages brought by the plaintiff against Joseph and Margaret Martin and another, an attachment was made of “a stock of groceries and business fixtures as the property” of the Martins.

Suit to determine the respective rights of general and of secured creditors of the Middlesex Banking Company, an insolvent corporation in the hands of receivers, in and to collateral held by the defendant as trustee, brought to and reserved by the Superior Court in Middlesex County, Burpee, J., upon an agreed statement of facts, for the advice of this court.

Action to recover a loss under a policy insuring the plaintiff’s tobacco against injury from hail, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $1,785, and appeal by the defendant.

Action to recover a commission for services rendered as a real-estate broker at the alleged request of the defendant, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; the jury returned a verdict for the plaintiff for $560, which the trial court upon motion set aside as against the evidence, and from this decision the plaintiff appealed.

Action to recover damages for injuries to the plaintiff’s person and to his automobile through a collision with a street-railway car of the defendant, which was alleged to have been caused by the negligence of its servants, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

<p>Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $5,960, and appeal by the defendant.</p> <p>September 28th, 1918, the plaintiff was injured by being run over by one of the defendant’s trolley-cars. He was at the time lying asleep by the side of the defendant’s tracks, with one or both of his feet extending over one of the rails. As a result of his injuries both his feet had to be amputated just above the ankle.</p> <p>The plaintiff lived with and was employed by one Reardon, who resided in South Windsor and upon the main highway between Springfield and Hartford, along which the trolley-line between those two cities runs. The point of injury was near the defendant’s station #28. The trolley-line was here a single track laid along the east side of the traveled way, an improved road surfaced with warrenite. Its westerly rail was some five or six feet east of the easterly edge of the warrenite. The intervening space was not improved for public travel. On the outer, or easterly side of the east rail, was a strip of land within highway limits about nine feet in width. This strip was wholly unimproved and unused by travelers. Immediately east of the tracks and for a distance of some four or five feet, the ground was slightly lower than the surface of the ties upon which the rails were laid, and from that point rose gradually to the highway boundary. At that point the land was some two feet higher than were the tracks. The space easterly of the tracks was covered with a growth of uncut grass of varying length. The defendant claimed that this grass was so high that all of the plaintiff’s body, except his feet, was concealed from view as he lay at the time he was injured; the plaintiff, that it was not of sufficient height and character to hide the plaintiff as he lay in it. The time of the accident was about midnight, and the place in the open country where there were no street lights.</p> <p>The plaintiff had left the home of his employer, which was near station # 33, on the evening of the day in qfiestion to visit Hartford. He remained in the city until nearly eleven o’clock, and drank during that time, as he himself admitted, two glasses of beer and one of whiskey. At 10:55 he boarded one of the defendant’s cars to return to his home. At station $ 28, which is about one mile from his destination and a half mile south of the fare limit station, which was number 31, he, for some reason which he was unable to explain, left the car and started in the direction of his home on foot. From that time until he was run over by the car, some one half or three quarters of an hour afterward, he was not, as far as is known, seen by anyone, and in the meantime no car passed the point of accident in either direction.</p> <p>The car which occasioned the plaintiff’s injuries was proceeding in a southerly direction toward Hartford. It was equipped with a powerful headlight, and was running at a speed variously estimated from fifteen miles an hour upward. In the front vestibule of the car, in addition to the motorman, was a constable of the town of South Windsor in uniform. He was employed by and acting under the orders of the selectmen of the town, to keep a lookout for persons or other obstructions which might be upon the trolley-tracks at a late hour on Saturday nights. At that time there was in the town a large number of tobacco growers and a very large acreage of tobacco. This industry called to the town during the growing and harvesting season a large number of employees, more or less of whom were likely to be found upon the highway at a later hour on Saturday nights than at other times. This the defendant motorman well knew, as he did also the reason for the constable’s presence on his car.</p> <p>As the car approached and passed the spot where'the plaintiff lay, neither the motorman nor the constable saw him. The motorman, however, felt a jar, which caused him to think that he had run over something. He brought the car to a stop as soon as possible and requested the conductor to see what had happened. The latter’s investigations having proved unsuccessful, the motorman reversed his power and backed his car to and beyond the point where the plaintiff lay. When it had fully passed, the rays of the' headlight revealed the presence of the injured plaintiff. The plaintiff claimed that the injury to his right leg was caused by the second passage of the car; the defendant, that both legs were injured when the car first passed.</p> <p>The defendant claimed to have shown that the motorman was keeping a proper lookout ahead and giving proper attention to the performance of his duties, and that neither he nor the constable, who stood at his side, saw the plaintiff or any portion of his body before the car struck him, and that their failure to do so was due entirely to the concealed position in which the plaintiff lay. .</p> <p>The assignments of error, five in number, all challenge the correctness of portions of the court’s charge as follows:—</p> <p>1. “Now, as to the first of these assignments of negligence — that is, as to the inexperience of the men — it is of course the duty of the defendant to employ men fitted to perform their duties consistently with the general safety of the public. But to make any .such assignment of negligence effective, it must not only appear by a fair preponderance of the evidence that the servants of the defendant were actually inexperienced men, but, further, that Carlson’s injuries are directly chargeable to that inexperience.”</p> <p>2. “I, of course, suggest to you that the law expects a high degree of care from one in charge of a powerful engine of this character, to preserve not only its own passengers but other travelers who may be abroad and in the neighborhood of the railroad tracks from injury. One in such a situation — that is, one in the situation of the motorman — is bound to keep strict watch of his road ahead, and to keep his car under control by maintaining only a speed proper for the surrounding conditions. If, in the fair exercise of these precautions, the motorman actually did not see Carlson before striking him, then neither he nor his principal is responsible here for whatever injury was inflicted upon Carlson when the car first struck him.”</p> <p>3. “Whether that negligence still remained a proximate or efficient cause of his injuries, would depend upon the entire situation then and whether he had been so long on the track as to charge the company with knowledge of his presence there.”</p> <p>4. “Of course his continued presence on the track in a drunken stupor, if he was in a drunken stupor, was an act of continuing negligence; but if his position was one which was or ought to have been obvious to the motorman of an approaching car, I think you must find that the negligence of the motorman, assuming that you find him to have been negligent under all these conditions, was the proximate cause of the injury without reference to any conduct of the plaintiff, and in that event the plaintiff must have a verdict.”</p> <p>5. “Remembering all the principles of negligence, as I have suggested them to you, and the specific allegations of negligence which refer to this branch of the case by the plaintiff, if you find that the man was injured by losing his remaining foot on this second trip of the car, I think the question of contributory negligence is removed — absolutely removed — from this feature of the case.”</p>

<p>Newly-discovered evidence which is merely cumulative, dr which impeaches the reputation or credibility of a witness, will not ordinarily suffice for a new trial, and never unless it appears reasonably certain that injustice has been done in the judgment rendered, and that the result of a retrial would probably be different.</p> <p>The alleged newly-discovered evidence in the present case reviewed, and because of its merely cumulative and impeaching tendency held insufficient to warrant the granting of a new trial.</p>

Action by the payee against the maker and indorsers of a promissory note for $228.73, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the plaintiff for $210, and appeal by the defendants.

Action to recover damages alleged to have been caused to the premises of the plaintiff, an abutting landowner, by a change of grade in the highway, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the plaintiff for $132, and appeal by the defendant. In 1896 the defendant town voted to expend a certain sum in grading and macadamizing a part of Main Street in front of the plaintiff’s land.

<p>Appeal by the defendant from a finding and award of the Compensation Commissioner of the fifth district acting in and for the first district, in favor of the plaintiff, taken to and tried by the Superior Court in Hartford County, Haines, J.; the court affirmed the award complained of, and from this judgment the defendant appealed.</p>

Action to recover damages for an alleged breach of contract to sell the plaintiff fourteen drums of caustic potash, brought to and tried by the Superior Court in New London County, Reed, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for the loss resulting to the plaintiffs from the collapse and fall of the building occupied by them as a retail dry-goods store, which was alleged to have been due to the negligence of the defendants in demolishing and removing a building upon the adjoining premises and in excavating thereon, brought to the Superior Court in New London County and tried to the jury before Greene, Jverdict and judgment for the plaintiffs for $23,500 against the…

Suit for an injunction and an order of interpleader by a judgment-debtor who had been several times garnisheed, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, J.; facts found and judgment rendered denying the plaintiff’s application, from which he appealed.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the negligence of the defendant’s chauffeur in the operation of his automobile, brought to the District Court of Waterbury and tried to the jury before Peasley, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

<p>Actions to recover damages for personal injuries resulting in the death of the injured person in each case and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and tried together to the jury before Haines, J.; verdict and judgment in each case for the plaintiff employers of the decedents, who had been Compelled to make compensation to their respective dependents, and appeal by the defendant.</p> <p>The defendant owned and operated a double track trolley-line between New Haven and Derby. The place of accident was in the outlying country district a little more than half-way from the former to the latter city. At this point the rails are laid outside of the highway limits, except that the northerly of the four is in places slightly inside of those limits. The traveled portion of the highway is paved with concrete to the width of eighteen feet. Between this concrete traveled way and the most northerly of the tracks is, at the point of accident, a space of some three feet in width which was neither prepared for travel nor ordinarily traveled. A little east of this point the trolley-tracks diverge from the traveled way, soon leaving a considerable distance between the two. Both the traveled way and the tracks were, for a considerable distance in the direction of New Haven, practically straight with no obstruction to the view either way.</p> <p>On the evening of November 23d, 1917, the plaintiffs' intestates, Tullock and Brown, accompanied by another person named Frisco, all in the employ of the plaintiffs Miner, Read & Tullock, left Derby to return to New Haven in an automobile truck. As they approached the point of accident the right-hand rear tire blew out. They thereupon drew the truck up close to the right-hand or southerly edge of the concrete, and stopped there to change the tire. Had they proceeded but a little further there would have been ample room for them to make the change without bringing themselves into dangerous proximity to a trolley-car, should one pass. The head-lights on the truck had been previously lighted, as Frisco testified, and so remained until the time of the accident save as hereinafter stated. There were three of these lights. One in the middle was a powerful acetylene lamp with mirror reflector; the other two were kerosene lamps with glass faces some six or seven inches in diameter, and giving out, as was testified, á bright light. These two were located on either side of the windshield.</p> <p>Tullock and Brown did the manual work of changing the tire. They had almost finished their task, and were putting on or tightening up the last few nuts when the accident happened. In doing this work they occupied the space between the concrete and the tracks, and were kneeling or crouching down therein. Frisco meanwhile assisted them by taking one of the kerosene lamps off from the truck and holding it so that it would furnish light for the better prosecution of the work of his companions. As he held it he stood, as he, the only witness on the subject, testified, between the two rails of the Derby-bound track and a little to the west of the wheel upon which the work was being done, and with the lamp held about four feet from the ground with its open face toward New Haven. In this situation all three of the men were struck by a Derby-bound car, of whose approach they were unaware.</p> <p>The trolley-car which hit them was proceeding at a speed estimated by the motorman at about fifteen miles an hour. The night was described by him as very dark. The car was lighted in front by two ordinary incandescent bulb lights, which, under ordinary circumstances, threw a light ahead only about fifteen or twenty feet. A part of the ordinary equipment of the car was a high powered light, and ordinarily such lights are used while running in the outlying portions of the route. There was such a lamp upon the car when it was taken from the barn, but the motorman, having discovered that it was not in working order, removed it. He testified that he could have stopped the car at the speed at which he was going in about one hundred feet. He also testified that he did not observe either of the men until he was within fifteen or twenty feet of them.</p>

Action to recover moneys collected by the defendant trustee upon notes payable to the bankrupt corporation which it had sold, indorsed and delivered to the plaintiff prior to the bankruptcy, brought to the Superior Court in New Haven County and tried to the court, Keeler, J., upon a demurrer to the answer; the court sustained the demurrer and rendered judgment for the plaintiff for $5,000, from which the defendant appealed.

<p>The law will not permit one who intentionally misrepresents his title to real estate to escape liability for damages caused thereby, upon the theory that the person addressed — -who believed and in good faith acted upon the statements to his own injury — need not have done so but might have resorted to the land records where he could have discovered their falsity.</p> <p>While the doctrine of constructive, or presumed, knowledge of the contents of' public records, is the equivalent of actual knowledge in determining the character and extent of the landowner’s title and interest, the situation is very different where, as in the present case, the creation of purely personal rights are concerned; under such circumstances this doctrine will not shield from accountability one who makes false representations to another’s damage.</p> <p>One of two owners in common is not responsible for false representations made by the other owner respecting his title to the real estate, unless made with the former’s authority, participation or acquiescence; and therefore a wife is not bound to surrender her interest in the property to another, merely because her husband, as she afterward learned, had made false statements as to its title.</p>

<p>A street railway company is liable at common law, like any individual or private corporation, for an injury caused by its neglect to observe reasonable care in the maintenance of its railway structure; but the obligation imposed upon it by the statute (§ 3831), to repair the highway between its rails and two feet outside thereof, and its liability for neglect to one injured (§ 1414), rest upon other considerations which partake of a public or governmental nature.</p> <p>It may happen that the act which constitutes negligence at common law is also a breach of the statutory duty to repair the highway, and where this is so, or is asserted, the injured person may pursue either or both remedies in the same complaint and in a single count.</p> <p>In the present case it did not appear from the finding that the defective instrumentality was a part of the railway structure, or that the street railway company had voluntarily assumed its maintenance as such. Held that under these circumstances the plaintiff could not recover upon his common-law action.</p> <p>A repeal of a statute by implication occurs only where the two statutes are so repugnant to one another as to indicate that the later Act was intended as a substitute for the former.</p> <p>This statutory duty to repair a prescribed portion of the highway, and its accompanying liability, which have rested upon street railway companies for more than fifty years, are not repealed by implication by the recent legislation (General Statutes, §§ 1486, 1498, 1515) under which the State has assumed a larger part in the construction and repair of highways, together with liability to one injured through the neglect or default of its employees.</p> <p>The purpose of this legislation, so far as trunk line highways are concerned, was not to change the long-established policy of the State in its treatment of street railway companies, but to relieve the towns from the burden of maintaining roads of an interstate character which enured mainly to the benefit of the public of this and of other States.</p> <p>The substitution of the highway commissioner for the town, in matters relating to these highways, cannot by itself be held to repeal the duty of the street railway company to repair this limited portion of the highway.</p> <p>General Statutes, § 1515, reserves to the State a right of action against the contractor “or other person,” through whose neglect or default the injury occurred, to recover the amount paid by the State under this section on account of such injury. Held that the expression “other person” was intended to, and did, include street railway companies.</p> <p>General Statutes, § 3719, relating to the repair by “railroad companies” of structures over or under their tracks, applies only to steam railroads.</p>

<p>Application in receivership proceedings by the plaintiff, an alleged creditor of the Ætna Idemnity Company, praying for the allowance of its claim, brought to the Superior Court in Hartford County and referred to a committee who found and reported the facts; the court, Case, J., accepted the report and, upon the• facts therein stated, rejected and disallowed the claim, and from this judgment the plaintiff appealed.</p>

Action on a penal bond conditioned that the defendant Litvin should pay to his wife $4 each week for her support, brought'to the Court of Common Pleas in New Haven County and heard in damages to the court, Simpson, J., after the defendants had been defaulted for failing to seasonably file their answer; facts found and judgment rendered for the plaintiff for $104, and appeal by the defendants.

Suit for an injunction to restrain the defendant from engaging in business in Bridgeport in competition with the plaintiff, in alleged violation of his contract, brought to the Court of Common Pleas in Fairfield County where a demurrer to the complaint was sustained (Walsh, J.) and judgment rendered for the defendant, from which the plaintiff appealed. The complaint contained the following allegations:— “1.

Action by the payee against the maker of a promissory note for $150, brought to and tried by the Court of Common Pleas in Fairfield County, Booth, J.; facts found and judgment rendered for the plaintiff for the amount of the note with interest, less the sum of $11.50 allowed the defendant upon her counterclaim, from which she appealed.

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 Reed, J.; verdict and judgment for the plaintiff for $20,000, and appeal by the defendant.

<p>Reservation for the advice of this court under General Statutes, § 5383, as amended by Chapter 142, § 16, of the Public Acts of 1919, made by the Superior Court in New Haven County, Kellogg, J., upon a pro forma judgment in favor of the defendants, rendered by the Compensation Commissioner of the fifth district.</p> <p>Marchiatello was employed as night watchman on the premises of the respondent employer, which was engaged in erecting dwelling-houses. The employer had a small office in a rather remote part of Waterbury which was used in the work. It contained three rooms, one used at this time as a construction office, another by the foreman who was asleep at the, time in question, and the other room separated from the construction office by a board partition in which the night watchman and a fellow-employee were engaged in conversing.</p> <p>The night watchman was on Sunday morning, October 21st, 1917, engaged upon his duties, and upon a desk in the construction office at this time lay a Colt automatic pistol. This pistol had been in the construction office for such a length of time that the fact that it was kept there was known to a number of the employees of the respondent employer, including Cote, a fifteen-year old boy who acted as water- and errand-boy, and in part as timekeeper. Cote had seen and handled the pistol before in the office. The foreman was also paymaster, and frequently had large sums of money in his possession in the construction office, and as a matter of personal protection he carried with him and kept in reach this pistol.</p> <p>Cote reached the office on this Sunday morning and saw the pistol on the desk, was curious about it, and while fooling or experimenting with it, without intent on his part to do harm, the pistol went off and the bullet penetrated the board partition separating this office from the room in which the night watchman was, and hit him while he was engaged in the course of his employment and inflicted a wound from which he died.</p>

<p>Action to recover for articles of wearing apparel sold to tlie wife of the defendant, brought to and tried by the Court of Common Pleas in Fairfield County, Booth, J.; facts found and judgment rendered for the plaintiff for $132, and appeal by the defendant.</p> <p>The defendant and his wife were married subsequent to April 20th, 1877, and lived together with their two minor children until August 17th, 1916, when the defendant, as a result of domestic troubles, left his wife and children and had not returned to them prior to this trial.</p> <p>Prior to August 10th, 1916, the defendant had provided for a part of the support of his family and his mother had provided for part. The defendant had also authorized his wife during this period to purchase upon his credit such goods as she deemed necessary for herself and children, which she had done, from the plaintiff and others, and the defendant had paid for the same. Without the support provided by such authorization, the support otherwise provided by the defendant for his family would have been insufficient.</p> <p>On September 12th, 1916, the defendant, learning that his wife was about to purchase goods on his credit of the plaintiff, and believing that she would purchase more than were necessary, telephoned plaintiff forbidding a sale by it to his wife upon his credit. The plaintiff, however, sold goods to the wife to the net amount of $89.54.</p> <p>On September 15th, 1916, the defendant gave plaintiff written notice that he would not be responsible for purchases by his wife from plaintiff. Subsequently, and without notice to defendant, plaintiff sold goods to the wife of defendant to the net amount of $35.25.</p> <p>All of the articles so purchased by the defendant’s wife after September 12th, 1916, were necessary for the support of the wife and minor children.</p> <p>The defendant failed to provide necessary support for his wife except as a,bove set forth.</p>

Action to recover moneys alleged to be due the plaintiff under an ordinance of the city of New London relative to auctioneers and requiring payment by the defendant, a licensed auctioneer, of a percentage on the gross amount of his sales, brought to and reserved by the Superior Court in New London County, Wébb, J., upon a demurrer to the complaint, for the advice of this court.

Suit to set aside a conveyance of real estate upon the alleged ground that it was procured by misrepresentation, concealment and imposition practiced upon the plaintiff, an aged and inexperienced person, who did not comprehend the nature and legal effect of her act, brought to and tried by the Superior Court in Fairfield County, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Appeal by the defendant in an action for divorce, from an order of the Superior Court in New Haven County, Curtis, J., made July 3d, 1919, whereby the original judgment rendered December 8th, 1916, was claimed to have been materially altered to the prejudice of the defendant. In this court the appellee (plaintiff) filed a motion to erase the appeal because it was not properly and seasonably taken, and also a plea in abatement to the same effect.

<p>An office which is created by an Act of the legislature cannot be abolished by a municipal board, though the latter be authorized to fill the office and, for cause shown, to remove the incumbent.</p> <p>A Special Act passed in 1917 (17 Special Laws, p. 1059) provided that “the board of water commissioners of the city of Norwich may appoint a superintendent of water works of said city, and may fill a vacancy at any time thereafter occurring in said office.” The Act further provided that such superintendent should be under the direction of the board, which should fix his salary, that he should hold office until removed for cause by the board after a full hearing upon reasonable notice, and that he might appeal from an order of removal to the Superior Court or a judge thereof. In June, 1917, shortly after this Act went into effect, the plaintiff was appointed superintendent, but a year later the board of water commissioners, without notice to the plaintiff and without any hearing, adopted a resolution abolishing the office of superintendent, and from this action the plaintiff appealed to a judge of the Superior Court. Held that this Act was not a delegation of power, as contended by the defendant, leaving it to the board of water commissioners to create the office or not at its discretion, but a direct creation by the General Assembly itself of the office in question, and therefore the board could not abolish the office nor by such an attempt remove the plaintiff from his position of superintendent.</p> <p>The expression “may appoint” in a statute relating to an appointment by a municipal board, is to be construed as mandatory, when the public interest obviously requires the appointment to be made.</p> <p>There is a clear distinction between an office and the incumbency of an office. An office comes into existence by force of the legislative Act; once created, it becomes a legal entity whose existence is not dependent upon whether it is in fact filled or not.</p> <p>It is within the power of the General Assembly to confer upon a municipal board authority to create an office as well as authority to fill it.</p> <p>An office which a municipal board has power to create, it ordinarily has power to abolish.</p>

<p>Action to foreclose a mortgage of real estate, brought to and tried by the Superior Court in New Haven County, Case, Jfacts found and judgment rendered for the defendants, and appeal by the plaintiff.</p> <p>One Grillo, owner of the premises in question, being about to build thereon, borrowed $2,500 for that purpose from Hannah Bowler, to be advanced as building operations required, and executed the mortgage in suit. At the same time the building was insured against loss by fire, under a policy making the loss payable to the mortgagee as her interest might appear. In December, 1916, the unfinished building was destroyed by fire at a time when only $1,000 had been advanced to Grillo by Miss Bowler. The remaining $1,500 was credited on the note. Grillo sold the equity in the property to Ruby for $300, and Ruby conveyed to the defendant Rapuano. In March, 1917, Grillo was adjudged a bankrupt and one Podoloff appointed trustee. Meantime the fire loss had been adjusted at $2,200, and Grillo’s claim against the insurance company constituted the only asset of his estate. At Podoloff’s request Miss Bowler executed and left with her attorneys a release of the insurance company and a transfer of the mortgage to Podoloff, trustee, and in May, the insurer paid the loss to Podoloff, who, as part of the same transaction, turned over to Miss Bowler’s attorneys $1,017.43, being the amount of the mortgage debt with interest, and received from them the above-mentioned release and transfer. Podoloff assigned the mortgage to the plaintiff, Sisk. Sisk died after this action was commenced and his administrator has entered to prosecute. Other facts are stated in the opinion.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the defendant’s negligence, brought to and tried by the Superior Court in' Fairfield County, Curtis, J.; facts found and judgment rendered for the plaintiff for 14,521, and appeal by the defendant. Under the Employers’ Liability Act of Congress, the sum awarded was apportioned between the decedent’s widow ($3,226) and his minor son ($1,295).

Action to recover damages for the alleged breach of a manufacturing contract, brought to and tried by the Superior Court in New Haven County, Webb, J.; facts found and judgment rendered for the plaintiff for $192,015, and appeal by the defendant. The action was commenced by the common counts, and a substitute complaint in six counts was filed, to which a seventh count was afterward added.

Fox, of a claim presented against her estate by the plaintiff, taken to the Superior Court in New Haven County where the plaintiff was nonsuited in a trial to the jury before Webb, J., and from the refusal of the trial court to set asidé that judgment the plaintiff appealed.

; facts found and judgment rendered in favor of the defendant, dismissing the appeal, from which the plaintiff appealed.

; the court set aside the action of the commissioner and referred the cause back to him for an award in favor of the plaintiff, and from this judgment the defendants appealed.

Application in receivership proceedings by an alleged creditor praying for the allowance of his claim, brought to the Superior Court in New Haven County. and referred to a committee who found and reported the facts; the court (Keeler, J.) recommitted the report for a further hearing and upon the return of the supplemental report judgment was rendered (Warner, J.) in favor of the claimant for $21,442, from which the receiver of the Jordan Company appealed.

Appeal by both parties from the rulings of the Compensation Commissioner of the third district in refusing compensation to the plaintiff, taken to and reserved by the Superior Court in New Haven County, Warner, J., upon the findings of the Commissioner, for the advice of this court.

Action to recover a real-estate broker’s commission, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff for $326, against the defendant James J. Wall, and in favor of Mrs. Wall, from which the former defendant appealed.

<p>The primary and usual meanings of the words in a will are to be applied in its construction, unless the testator’s intended use of them in another and reasonable sense is so clearly indicated, upon an examination of the entire instrument, as to overcome their ordinary signification and satisfactorily establish the unusual meaning contended for.</p> <p>A testatrix created a trust fund for the benefit of a daughter during her life, with authority to the trustee to pay over the principal of the fund to the daughter if at any time “after the death of her husband Douglas Campbell” such disposition of the principal should seem desirable to the trustee; otherwise to transfer the principal upon the daughter’s death to her heirs at law. About five years after the decease of the testatrix the daughter obtained a divorce from her husband, Campbell, who is still living, and later married a man named Davis. No child has been born of either union. The trustee is now desirous of turning over the principal to Mrs. Davis, and her father and only sister have given their consent. Held that the sole contingency upon which the trustee was free to make this payment was the “death” of the daughter’s husband; that her separation from him by divorce was not a fulfilment of that contingency, and therefore the trustee was not at liberty to pay over the fund to the daughter.</p> <p>The intention of a testator, when properly discovered and sufficiently expressed, if not unlawful, is to be given effect; but that intent must be found in the will as written, when read in the light of the circumstances surrounding the testator at the time of its execution.</p>

Action to recover damages for wantonly, negligently and unnecessarily cutting trees and shrubs between the traveled path of a highway and the fence line of the plaintiff’s land, within the legal limits of the highway, brought to and tried by the Superior Court in Middlesex County, Burpee, J.; facts found and judgment rendered for the plaintiff for $1,000 against the defendant Peck, from which he appealed.

Action to recover damages for a breach of contract in the sale of personal property, brought before a justice of the peace and thence by the plaintiff’s appeal to the Superior Court for Tolland County and. tried to the jury before Burpee, J.; verdict and judgment for the plaintiff, and appeal by the defendants.

<p>Action to recover the balance of the purchase-price of a crop of potatoes alleged to have been sold to the defendant, brought to the Superior Court in Hartford County and tried to the jury before Burpee, Jverdict and judgment for the plaintiff for $2,032, and appeal by the defendant.</p> <p>In 1917 the plaintiff, a farmer, raised a crop of potatoes which, consisting of all grades, amounted to about 3,000 bushels. On October 16th of that year he was visited by one Shindel, the duly-authorized agent of the defendant, a wholesale dealer. A bargain was then concluded for the defendant’s purchase of the No. 1 potatoes, and thereupon the agreement of the parties was reduced to writing and signed by them as follows: —</p> <p>“Hartford, October 16, 1917.</p> <p>“I, Andrew Mitchell, of Buckland, Conn., have after due consideration sold my entire crop of potatoes to consist of about two thousand bushels of number one potatoes, to be well graded for two dollars per bu., to Weiner Bros, of Hartford. The grade of these potatoes shall consist of sound potatoes of similar varietal characteristics, which are to be free from dirt or other foreign substance or matter, absolutely free from frost injury, sunburn, second growth, cuts, scab, blight, dry rot, and damage caused by disease, insects, or mechanical means. The minimum diameter of the round varieties shall be two inches, and the minimum diameter of the long varieties shall be one and seven-eighths inches.</p> <p>“I furthermore agree to deliver the potatoes when Weiner Bros, desires to have me do so. Weiner Bros, agrees to furnish me the bags, I also agree not to sell these potatoes to any person or persons, unless instructed in writing by Weiner Bros.</p> <p>“A check of fifty dollars is hereby given to bind contract and to apply on account of potatoes.</p> <p>“Andrew Mitchell Weiner Bros, per T. S. Shindel.”</p> <p>The plaintiff offered evidence to prove the following additional facts: At the time the bargain was made and the writing signed, his entire crop remained as the potatoes were" dug — unsorted, ungraded and in a commingled mass made up of various grades, — and in that condition it was seen and examined by Shindel before the writing was executed. Subsequently the .plaintiff sorted and graded them, obtaining therefrom about 2,000 bushels of No. 1. These latter were thereafter kept and stored by him separately and apart from those of lower grades, and for the defendant. No request for their delivery was made by the defendant until February 19th, 1918. Thereupon, on the 20th of that month, the plaintiff delivered, as requested, the first load, containing 145 bushels. A day or two later he delivered a second load, and on the 26th, the third. These three loads were accepted and paid for by the defendant at the contract price of $2 per bushel. March 8th he delivered a fourth load which, and all undelivered potatoes, the defendant refused to receive. The plaintiff thereupon sold those not delivered and accepted, at the best available ^market price. That price having declined, he was able to obtain only $1 a bushel. All the potatoes offered to the defendant were number one.</p> <p>The defendant offered evidence to prove that the potatoes delivered on February 25th were scabby, frost-bitten, and in bad condition, and not number one grade; that he requested the plaintiff to take back the inferior ones, which the latter refused to do; that the defendant thereupon told the plaintiff that he would not accept any more — that he wouldn’t have anything more to do with the plaintiff; that no further attempts at delivery were made until about the 8th or 10th of March, when he refused acceptance; that he intended to use the potatoes purchased of the plaintiff as seed potatoes, the market price of which was $7 per eleven peck sack, and that scabby, frost-bitten, or No. 2 potatoes were not suitable for such use.</p>

Writ op error to reverse an alleged erroneous judgment of the City Court of Hartford, Calnen, Acting-Judge, in an action of summary process, awarding the possession of certain leased premises to the plaintiffs in that action (defendants herein), brought to the January Term, 1920, of this court at Hartford. The defendants in error filed a plea in abatement in this court, to which the plaintiffs in error demurred.

Action to recover damages for the refusal of the defendant contractor to repair or make good the injury to a sea-wall which it had contracted to build for the plaintiff, caused by a severe storm pending the completion of the wall, brought to the Superior Court in Fair-field County, where a demurrer to the complaint was overruled and one to the second paragraph of the answer sustained (Haines, J.), and later, upon an agreed statement of facts, the cause was reserved for the…

<p>Action to recover damages for personal 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 Fairfield County and tried to the jury before Maltbie, J.; verdict for the plaintiff for $2,500, which the trial court, upon motion' of the defendant, set aside as against the evidence, and from this ruling the plaintiff appealed.</p> <p>Bamum Avenue is a public highway, forty-three feet wide between curbs, extending from Bridgeport easterly to Stratford. The defendant’s double track trolley-line is in the middle of the street, the westbound tracks being the northerly ones. Just previous to the accident in which the plaintiff’s intestate lost his life, he was driving a two-horse dump-cart along the southerly or his right-hand side of the tracks and going easterly. Dorus Street leads off from Barnum Avenue toward the north. The decedent was intending to turn into Dorus Street, and was in the act of doing so when his team was struck by a westbound car, with the result that he was thrown from his seat on the cart and received fatal injuries. The other pertinent facts are sufficiently stated in the opinion.</p>

Action to recover a broker’s commission for effecting a sale of the defendant’s real estate, brought to the Superior Court in New Haven County and tried to the jury before Keeler, J.; verdict for the plaintiff for $1,538, which the trial court, upon motion of the defendant, set aside as against the evidence, and from this ruling the plaintiff appealed.

Action upon a replevin bond, brought to and tried by the Superior Court in New Haven County, Kellogg, Jfacts found and judgment rendered for the plaintiff for $1,604, and appeal by the defendants. The defendant Rigo prayed out a writ of replevin on December 13th, 1917, against the plaintiff, and took from the possession of plaintiff an auto-truck.

Pro Forma Judgment rendered by the Compensation Commissioner for the fifth district in favor of the defendants upon the plaintiff’s claim for compensation, filed in and reserved by the Superior Court at Waterbury in New Haven County, Kellogg, J., for the advice of this court. The plaintiff, Gibbs, is employed regularly by the defendants, the Ailing Realty Company and the Home Trust Company, under “contract of employment,” within the Workmen’s Compensation Act.

Action to recover damages for the alleged wrongful and forcible taking and detention of certain articles of personal property owned by the plaintiff, brought to and tried by the City Court of Meriden, Dunne, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. The plaintiff was the owner of a farm which he deeded to the defendant. He also owned personal property of various kinds situated upon the farm or in the buildings thereon.

Action by the indorsee against the maker and indorser of a promissory note for $500, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; verdict for the plaintiff, which the trial court accepted and rendered judgment upon as against the defendant Bradley, but set aside as against the defendant Russell, the indorser, as against the evidence, and from this decision the plaintiff appealed.

Action to recover for materials and labor furnished in laying a cement sidewalk upon the defendant’s premises, brought 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. The defendant contracted with one Skolnick, as general contractor, for the construction of a building, under a contract which called for the laying of a concrete sidewalk around the same.

<p>Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servant in the operation of a motor-vehicle, brought to the Superior Court in Middlesex County and tried to the jury before Warner, J.; the jury returned a verdict for the plaintiff for $800, which he moved to have set aside in so far as it related to the amount of damages, and from the refusal of the trial court to grant such motion the plaintiff appealed.</p>

Suit to restrain the defendant from collecting or attempting to collect from the plaintiffs, owners of land abutting upon Windsor Avenue in Hartford, any part of the cost of paving that street with sheet asphalt, and from placing liens for any part of the cost of such paving upon the lands of the plaintiffs, brought to and tried by the Superior Court in Hartford County, Keeler, J., upon a demurrer to the complaint; the court sustained the demurrer and, upon the refusal of…

<p>In accepting an automobile for repairs, a garage company, in the absence of any agreement to the. contrary, undertakes to do, or at least to be responsible for, the entire job; and therefore is liable in damages for the negligent welding of one employed by it to do that particular item of the repairs.</p> <p>A garage company necessarily does all its work by employees, and whether they are permanently employed or only for special jobs can make no difference.</p> <p>It is a rule of bailments for repairs, that unless the contract requires the personal services of the bailee, he may have the work completed by third persons.</p> <p>The defendant claimed that upon the facts of record the plaintiff did not rely upon the former to do the welding, but merely authorized it, the defendant, to employ a competent welder on the plaintiff’s account. Held that such contention was not supported by any reasonable construction of the whole situation, or even of the conversation of the parties with reference to the welding.</p> <p>Reasons of appeal not mentioned in the briefs of either party will be deemed by this court to have been abandoned.</p>

Action to recover money alleged to have been paid through mistake, 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 $412, and appeal by the defendants.

Action to recover damages for injuries to the plaintiff’s automobile-truck and its contents, alleged to have been caused by the negligence of the defendant in the construction and maintenance of the highway, brought to and tried by the Superior Court in New Haven County, Keeler, J.; facts found and judgment rendered for the defendant, from which the plaintiff appealed.

<p>Application in the nature of an appeal from the action of the Tax Commissioner in demanding a tax of two per cent for five years on the appraised inventory value of certain bonds issued by the town of Milford which had never been assessed or taxed by said town, brought to and reserved by the Superior Court in New Haven County, Warner, J., upon an agreed statement of facts, for the advice of this court.</p> <p>The applicant brings this appeal as executor of the estate of Sarah F. Stoddard, a resident of the town of Milford, who died in October, 1917. The inventory of her estate included eight four per cent bonds of the town of Milford on which no tax had ever been paid either to the town or to the State. The Tax Commissioner, acting pursuant to Chapter 243 of the Public Acts of 1917, now § 1190 of the General Statutes, assessed a tax of two per cent per annum on the appraised value of the bonds for the five years next preceding the death of Mrs. Stoddard, from which assessment the executor appeals.</p> <p>The questions of law on which the advice of this court is asked are as follows:—</p> <p>(1) Whether or not the eight $1,000 bonds of the town of Milford were taxable by the town of Milford while said eight bonds were owned by the said Sarah F. Stoddard?</p> <p>(2) Whether or not said estate of Sarah F. Stoddard is liable for the deficiency tax of $784 as determined by the Tax Commissioner of the State of Connecticut?</p> <p>(3) Whether or not the said Robert C. Stoddard, as executor upon the estate of Sarah F. Stoddard, is aggrieved by the action of said Tax Commissioner in determining said taxes at $784, because no taxes have been assessed or paid upon said eight bonds during the year preceding the date of the death of said Sarah F. Stoddard?</p> <p>It is found that the bonds in question were part of an issue of $50,000, 25 year 4% bonds, dated July 1st, 1911, issued by authority of a vote of the town of Milford which provided, among other things, that they should be sold at not less than par. They were purchased by Sarah F. Stoddard on July 8th, 1911, at par and interest. There is no statement on the face of the bonds as to whether they are taxable or not. The assessors of the town of Milford supposed and believed the bonds were not taxable by the town. No taxes have ever been assessed or paid on them, and Sarah F. Stoddard would not have bought the bonds if she had understood they were taxable.</p>

Action to recover damages for the destruction of growing crops and herbage on the plaintiff’s land by the trespass thereon of the defendants’ cattle, alleged to be due to the defendants’ negligence, brought by appeal from a judgment of a justice of the peace to, and tried by, the Superior Court in Windham County, Kellogg, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

<p>Action to recover the alleged unpaid par value of shares of the capital stock of an oil company issued by it in payment for its oil lands, and transferred by the original holders ' to the defendants’ testator, brought to and tried by the Superior Court in Wind-ham County, Keeler, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs.</p> <p>The defendants are executors of the will of Edwin Milner, who died February 19th, 1914, possessed of six hundred and sixty shares of the Babcock Oil Company. The company was incorporated under the laws of Maine on or about February 1st, 1910, for the sole purpose of doing business in California. Its purposes were described at length in the certificate of incorporation. The first few lines of this description read as follows:—</p> <p>“To buy, own, sell and lease petroleum lands; to locate petroleum, gas and other mineral lands under the laws of the United States and the laws of the State of California; to drill and bore wells for oil, water, gas or any other substance; to buy, sell, own, lease, construct and operate oil wells and gas 'machinery, tanks, and pipe lines, and to buy, sell, own and lease all necessary lands, buildings and personal property in connection therewith and necessary for said purposes; to buy, own, sell, lease, construct and operate factories, machinery, tanks and pipe lines for the refining and distilling and distribution of petroleum oils, gas and other hydrocarbon substances and to manufacture all kinds of hydrocarbon substances or mixtures thereof.” Its capital stock was $500,000, divided into 5,000 shares of $100 each. Its organizers were Harrison B. Huntoon and William C. Huntoon and one Murdock, their attorney, all of Providence, R. I. All of its capital stock was issued to the Huntoons as fully paid, in return for their conveyance to the company of leasehold rights in a quarter section of land in the oil fields of Kern County, California, then being developed for the production of petroleum, together with personal property thereon, consisting of machinery and appliances designed for the development and operation of oil lands. About two months after its incorporation Milner purchased from the Huntoons 660 shares of the stock which had been issued to them, and transfer of these shares was thereupon made to him. He remained their owner until his death.</p> <p>Upon the organization of the company the two Huntoons and Murdock became its directors, and it commenced and prosecuted the business for which it had been incorporated upon the land in California, the leasehold of which had been conveyed to it as aforesaid. In the prosecution of this business and in the development of the property for the production of oil, the company expended a considerable sum of money; but the production and financial results proved disappointing.</p> <p>On February 11th, 1910, the company mortgaged the property conveyed to it by the Huntoons, to the plaintiffs, then and ever since residents of California, to secure its notes for $30,000. In December, 1912, the plaintiffs foreclosed this mortgage and obtained the deficiency judgment upon which the present suit is based. Execution was issued upon the judgment and was returned wholly -unsatisfied.</p> <p>The property conveyed to the company by the Huntoons was of the market value of $500,000 as a development prospect at the time of such conveyance. The after-development of the property showed that it was not actually of such value, and that it was of only nominal value over and above the charges and incumbrances on it. The directors of the company believed, when the conveyance was made and the stock issued, that it was worth at least the par value of the stock issued for it, and they were justified in believing that it would, when developed, be worth much more than the total capital stock of the company. All parties to that transaction acted in good faith and with no intention to accept the property in payment for stock at an over-valuation.</p> <p>After Milner’s death the claim of the plaintiffs was duly presented to the defendants, thé executors of his will. It having been disallowed by them, this action was brought within the time provided by statute.</p> <p>Other facts found having no relation to the questions discussed in the opinion, although important as bearing upon other phases of the case involved in the appeal, are omitted.</p>

; verdict for the plaintiffs and against the validity of the will, which the trial court set aside as against the evidence, and from this decision the plaintiffs appealed.

Action to recover the amount of a written order for $200, drawn upon and alleged to have been accepted by the defendants, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff. January 6th, 1914, the defendants entered into a written contract with one Lifchitz for the construction by him of a house on a lot owned by them.

<p>Under § 4746 of the General Statutes, a conditional contract of sale which is unacknowledged and unrecorded, while valid as between the parties, is insufficient to protect the property from attachment for the debts of the vendee while in his possession.</p> <p>The voluntary release or discharge of such an attachment, made by a creditor of the conditional vendee for a pre-existing debt, destroys his attachment lien and divests him of all interest in and control over the property; and upon its bona fide return to the original owner, he may resell it to the original vendee by a properly executed and recorded bill of sale, and thus secure his own interest in the property from a second attachment by the vendee’s creditor for the same debt.</p> <p>In the present case the creditor insisted that the first contract of sale was still in effect when he made his second attachment, and that the rights of the parties were to be determined from that standpoint. Held that this contention was conclusively disposed of by the adverse finding of the trial court.</p>

<p>Suit to restrain the defendant from erecting bathing pavilions or other structures between high and low-water mark- in front of his upland adjoining land of the plaintiff used as a public park, brought to the Superior Court in New Haven County where a demurrer to the first count of the complaint was sustained (Greene, J.) and, upon the withdrawal of the other counts, judgment was rendered for the defendant, from which the plaintiff appealed.</p> <p>The first count of the complaint alleges that by a Special Act of the General Assembly approved June 6th, 1913 (16 Special Laws, p. 1102), the State conveyed to the Town of Orange all its right, title and interest in certain lands lying between high and low-water mark, with authority to the Savin Rock Park Commission, created for that purpose, to develop and improve the same as a public park. It is alleged that the town has complied with all the requirements of the Act and is engaged in improving the land as a public park. The defendant is described as claiming to own certain upland bordering on the shore so granted to the plaintiff town by the State, and it is alleged that he is constructing a bathing pavilion in front of his upland stretching over and across the shore between high and low-water mark, which bathing pavilion will, if constructed and maintained, greatly lessen or destroy the availability of the plaintiff’s land for park purposes, and prevent the plaintiff from carrying the Act of 1913 into effect. The other counts of the complaint have been withdrawn.</p> <p>The defendant demurred to the first count, on the ground that the Act of 1913 is unconstitutional and in violation of the State and Federal constitutions, in that it attempts to deprive the defendant of his property without due process of law; on the ground that the town was attempting by this complaint to take the defendant’s property for a public use without paying compensation therefor; and on the ground that the State had no right to cede to the Town of Orange the defendant’s riparian rights without payment of compensation. The trial court sustained the demurrer on the grounds above stated. Judgment was entered for the defendant, and the plaintiff appeals.</p>

<p>General Statutes, §§ 1171, 1172, exempts from taxation a tract of land planted with forest trees of not less than twelve hundred to the acre, for a period of not more than twenty years during the continuance of such tract as a wood or timber lot. Held that such a plantation did not cease to be entitled to the exemption merely because about one third of the total number of trees were destroyed during a winter by an unexpected invasion of rodents which could not have been prevented by any practical means, nor because the replanting of new trees in the following spring, by the nursery company which had contracted to do the work, was necessarily delayed for a year by war conditions.</p> <p>It may be possible to separate a part of a tract of land originally planted with trees and subject that portion to taxation, if the owner fails to continue to use it for a tree plantation; but the mere fact that a larger proportion of the trees upon that particular part were destroyed, under the circumstances above detailed, than upon the remainder of the tract, will not justify a finding that the owner had failed to continue it as a tree plantation.</p>

Action to recover money paid upon a contract for the purchase of real estate, because of an alleged failure to make a good title thereto, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action to recover damages for personal injuries to-the plaintiff’s intestate resulting in her death and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Litchfield County and tried to the jury before Kellogg, J.; the trial court directed a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

Action to secure a transfer to the plaintiff, the trustee in bankruptcy of the New Milford Hat Company, of certain shares of stock and of bonds, alleged to have been purchased by the defendant Green with funds of the Hat Company, and thereafter pledged by him to the defendant bank as collateral for his own personal indebtedness of long standing, and for other equitable relief, brought to and tried by the Superior Court in Litchfield County, Kellogg, J.; facts found and…

Action to recover damages for the alleged breach of an oral agreement to conduct and manage a farm, brought to the District Court of Waterbury and tried to the jury before Makepeace, J.; verdict for plaintiff for $1,102.23, of which $65.55 was remitted, and judgment rendered for $1,036.68, from which the defendant appealed.

Appeal by the defendant from a finding and award of the Compensation Commissioner of the second district, while acting for and in place of the Commissioner for the fifth district, in favor of the plaintiff, taken to and tried by the Superior Court in New Haven County, Case, J.; the court affirmed the award of the Commissioner, and from this judgment the defendant appealed.

Suit to restrain the defendant from erecting a garage on his lot adjoining that of the plaintiff at Laurel Beach, Milford, in alleged violation of a restrictive covenant in his deed, brought to and tried by the Superior Court in New Haven County, Warner, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Information for engaging in the purchase from producing dairymen of milk to be resold at retail to consumers, without having obtained a license therefor from the dairy and food commissioner, in alleged violation of Chapter 194 of the Public Acts of 1919, brought to and tried by the District Court of Waterbury upon a demurrer to the complaint; the court, Makepeace, Deputy-Judge, sustained the demurrer and rendered judgment for the accused, from which the State appealed.

Appeal by the plaintiffs from an order and decree' of the Court of Probate for the district of Waterbury refusing to appoint the Manufacturers National Bank as guardian of the estate of Katherine Hamilton, a minor, taken to and reserved by the Superior Court in New Haven County, Kellogg, J., upon an agreed statement of facts, for the advice of this court.

Action to recover an alleged balance for merchandise sold, brought to and tried by the Court of Common Pleas in Fairfield County, Walsh, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. Prior to June 18th, 1918, plaintiff sold and delivered to defendant five separate invoices of goods at agreed prices as follows: $399.42, $138.38, $73.80, $105.68, $64.14. There was no dispute concerning the first three of these items.

<p>The plaintiff sought to recover damages for the defendant’s alleged wrongful termination of contracts made with the plaintiff in May, 1916, for the construction of two bridges over the Pequonnock River in Bridgeport, one at Grand Street and the other at East Washington Avenue; and the main issue was whether the plaintiff’s dismissal in August, 1917, was justified or not under the terms of the contracts. The trial court found that there were contradictions and ambiguities in the specifications prepared by the defendant’s consulting engineer, whose headquarters were in Chicago, and especially in the requirements to be observed by the contractor in building the four supporting concrete piers for the Grand Street bridge, a most important part of the undertaking; that these inconsistencies were pointed out to the defendant’s consulting engineer, who was “the sole interpreter of the drawings and specifications,” and after various conferences and consultations the plaintiff submitted a plan of its own for the pier construction; that this plan was before the consulting engineer and the commission which represented the city for almost a year, during which neither of them would take the responsibility of deciding what should be done, and that it was only after a new engineer had been called in by the commission in the spring of 1917 to advise it, that the plaintiff’s plan, in effect, was adopted; that for these delays, which prevented the completion of the bridge within the stipulated period, the defendant city and not the plaintiff was responsible; that the city, being in fault, had no right to discharge the plaintiff and prevent it from finishing its contracts; and therefore that the plaintiff was entitled to recover damages. Upon appeal by the defendant it was held:—</p> <p>1. That the court was clearly correct in its conclusion that the specifications were ambiguous and inconsistent in their requirements touching the construction of the piers.</p> <p>2. That the evidence amply sustained the finding of the trial court, to the effect that the consulting engineer avoided the responsibility cast upon him by the contracts of resolving the uncertainties and inconsistencies of his own specifications.</p> <p>3. That several of the defendant’s assignments of error presented mere questions of fact conclusively disposed of by the finding; that others depended upon assumed rulings not discoverable upon the record; while still others misconstrued the true purpose of the action and the real grievance upon which the plaintiff relied.</p> <p>4. That a prerequisite of the method of terminating the contract invoked by the defendant, was that it should be without fault itself, and that it clearly lacked this essential qualification.</p> <p>5. That the plaintiff was entitled to show, if it could, that the defendant’s unwarranted interruption of work on the East Washington Avenue bridge, in January, 1917, had retarded the fair progress of work on the Grand Street bridge, the two contracts having been made at the same time and in contemplation of their concurrent execution.</p> <p>6. That evidence of delay caused by the breakage of defective concrete slabs upon their attempted removal to be placed in position, due to the faulty method prescribed by the defendant’s engineer for their casting, was properly admitted in behalf of the plaintiff, since the defendant alone was answerable for such consequences.</p> <p>7. That an expert engineer might testify whether the plan for constructing the piers submitted by the plaintiff was a proper method or not, and how radical modifications made by the defendant’s consulting engineer affected that plan.</p> <p>8. That an inquiry of the chairman of the bridge commission as to whether the commission had instigated the insertion of the provision in the specifications requiring the concrete for the piers to be laid in the dry, was properly excluded.</p> <p>9. That the statement of an expert witness called by the plaintiff, as to the comparative unimportance, from an engineering standpoint, of the specification requiring the concrete for each pier to be poured in one continuous operation, was properly allowed to stand, for such light as it might give upon the contested question of ambiguities and inconsistencies in the specifications.</p> <p>10. That evidence of what the city did in the way of repairing defective concrete, after taking over the work, was inadmissible; especially as the trial court allowed the witness to state exactly what the defects were, and their character and extent.</p> <p>11. That there was no foundation in the record for the suggestion of the defendant that the trial court had allowed the plaintiff to recover for expenditures resulting from its own delay, and had not limited the recovery to expenditures fairly and reasonably made in the work called for by the contract; that this suggestion was based upon a misconception of the essential ground of the plaintiff’s claim, which was that it had necessarily incurred expenditures while engaged in an honest attempt to carry out a contract containing inconsistencies and contradictions of the city’s own making, but for which it practically declined to assume any responsibility until shortly before the plaintiff’s unjustifiable dismissal.</p> <p>12. That the rule of damages embraced, first, expenditures already incurred by the plaintiff in its effort to perform its agreement, and, second,.the profit it would have realized had it performed the whole contract; and that this rule was correctly applied to the situation before the court.</p> <p>13. That the mere fact that the plaintiff, with knowledge of the defects and ambiguities in the plans before executing the contract, had made expenditures beyond its original estimates, did not preclude it from recovering lost profits, though it might make it more difficult to ascertain their amount.</p> <p>Prospective profits are not recoverable unless they are reasonably certain to result from the breach of the contract; but mere uncertainty as to their amount may be dispelled by the same degree of proof as is required in other civil actions, that is, the amount may be determined approximately upon reasonable inferences and estimates.</p> <p>Purely evidential facts, even touching recognized elements of damage, need not be detailed in a finding.</p> <p>A finding that a bridge contractor spent a definite sum in preparation for its work under a contract, and in the prosecution of its work thereunder, necessarily carries with it an inference or implication that the expenditures in question were reasonably incurred for their avowed purpose.</p> <p>A defendant’s full responsibility for a wrongful breach of a contract is not lessened because he might have terminated the contract by legitimate methods without violating it.</p>

Action to recover damages for prohibiting and preventing the plaintiff from carrying out its contract to build a bridge known as the new East Washington Avenue bridge in Bridgeport, brought to and tried by the Superior Court in Fairfield County, Haines, J.; facts found and judgment rendered for the plaintiff for $31,968, and appeal by the defendant. This case was tried with another between the same parties, see p. 659.

Action to recover damages for injuries to the plaintiff’s automobile and for the loss of its use, alleged to have been caused by the negligence of the defendant in the maintenance of one of its highways, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; verdict and judgment for the plaintiff for $567, and appeal by the defendant.

Information for theft from the person, coupled with allegations that the accused had theretofore thrice been convicted, sentenced and imprisoned in a State prison, brought to the Superior Court in New Haven County and tried to the jury before Warner, J.; verdict and judgment of guilty, and appeal by the accused. The State’s Attorney for New Haven County in an information charged the defendant, under a number of aliases, with theft of $16 from the person.

Action to recover damages for the act of the defendant’s servant in assaulting and ■ shooting the plaintiff, brought to the Superior Court in New Haven County and tried to the jury before Haines, J.; verdict and judgment for the plaintiff for $3,000, and appeal by the defendant. Miner, Read & Tullock was a mercantile firm carrying on business in New Haven and occupying for that purpose a building situated at the corner of State and Water streets.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servant in the operation of one of its commercial automobiles, brought to the Superior Court in Hartford County and tried to the jury before Burpee, J.; verdict for the plaintiff for $10,000, which the trial court refused to set aside as against the evidence, and from the judgment thereon the defendant appealed.

Action to recover damages for injuries to the person and property of the plaintiff, alleged to have been caused by the negligence of the defendants’ servant in operating an automobile upon the highway, brought to the Superior Court in New London County and tried to the jury before Reed, J.; verdict and judgment for the plaintiff for $1,000, and appeal by the defendants.