Volume 97 — Connecticut Reports

<p>Action against a common carrier for nondelivery of goods, brought to the Court of Common Pleas in Hartford County and tried to the jury before Dickenson, J.; verdict and judgment for plaintiff for $1,842, and appeal by the defendant.</p> <p>The complaint is based on the common-law liability of the carrier, and alleges in four counts the shipment, nondelivery and consequent total loss of four separate consignments of distilled liquor. In addition to denials of the material allegations of each count, the answer sets up, as a second defense to each count, that the goods were delivered to the defendant by an agent of the plaintiff, that they were shipped in pursuance of a fraudulent scheme on the part of the agent, contrived for the purpose of obtaining them for himself at their destination, and that he did so obtain them; and, as a third defense, that the agent had actual or apparent authority to demand and receive the goods at their destination. Demurrers to the second defense to each count were sustained, and the defendant amended its answer by adding a fourth defense to each count containing a more particular statement of the fraudulent scheme devised and carried out by the agent, and also, by adding an additional special defense to all counts, alleging that the plaintiff was negligent in permitting the agent to handle the shipments and to have possession of the bills of lading. Demurrers to the fourth defenses and to the special defense were sustained, and the case went to trial on the issues raised by the first and third defenses to each count.</p> <p>At the close of the evidence the plaintiff and the defendant' each moved for a directed verdict in its favor on all counts. The court directed a verdict for the plaintiff on all counts, and the defendant appeals from this ruling and from the ruling of the court sustaining the demurrers to the second and fourth defenses to each count and to the special defense.</p>

Action against the surety in a bond substituted for an attachment, alleging breach of condition by the principal, brought to the Superior Court in New London County where a demurrer to the reply was overruled, Wolfe, J., a demurrer to the rejoinder was sustained and judgment rendered {Banks, J.) on the pleadings for the plaintiff, for $2,415.55, from which the defendant appealed.

Action to recover damages for the loss of goods shipped in interstate commerce, brought to and tried by the Superior Court in New London County, Banks, Jfacts found and judgment rendered for the defendants, and appeal by the plaintiff.

Suit to compel the defendant to cause an alleged undelivered deed of real estate owned by the plaintiff to be erased from the land records, and requiring the premises to be conveyed to the plaintiff, brought to and tried by the Superior Court in New Haven County, Wolfe, J.; judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for alleged libel and slander, brought to and tried by the Superior Court in New Haven County, Wolfe, J.; facts found and judgment rendered for the defendant, from which the plaintiff appealed.

Appeal by the defendant from a finding and award of the Compensation Commissioner of the fifth district in favor of the plaintiff, taken to and reserved by the Superior Court in New Haven County, Avery, J., upon the Commissioner's finding, for the advice of this court.

Action to recover damages for negligently running into and killing the plaintiff’s intestate, brought to the Superior Court in Fairfield County and tried to the jury before Hinman, J.; verdict and judgment for the plaintiff for $5,291, and appeal by the defendant.

Writ or Error to reverse a judgment of a justice of the peace in an action of summary process in favor of the landlord, brought by the tenants to, and tried by, the Court of Common Pleas in Litchfield County, Woodruff, J., which found error in the judgment of the justice of the peace and reversed it, and from this judgment of reversal the landlord appealed.

<p>Appeal by the defendant from a judgment of the Superior Court in Hartford County, Máltbie, J., which found error in the action of the Compensation Commissioner of the fifth district, acting for and in place of the Commissioner of the first district, in reopening a former award and in dismissing the claim of the plaintiff.</p>

Action to recover damages caused by surface water negligently allowed by the defendant to overflow into the plaintiff’s building, brought to the Superior Court in New Haven County and tried to the jury before Greene, Jverdict for the plaintiff for 11,833, which the court refused to set aside, and from the judgment thereon the defendant appealed.

Action to recover for services rendered and material furnished under a building contract, brought to and tried by the Superior Court in New London County, Hinman, J.; facts found and judgment rendered for plaintiff for 13,836, from which he appealed.

Suit to determine the validity and construction of the will of Junius N. Benham of Bridgeport, deceased, brought to and reserved by the Superior Court in Fairfield County, Kellogg, J., upon the facts stated in the complaint, for the advice of this court.

Appeal by the defendants from a finding and award of the Compensation Commissioner of the first district acting for and in place of the Commissioner of the third district, in favor of the plaintiff, taken to and reserved by the Superior Court in New Haven County, Banks, J., upon the Commissioner’s finding, for the advice of this court.

Action to recover damages for breach of contract, brought to and tried by the Superior Court in New Haven County, Kellogg, J.; facts found and judgment rendered for plaintiff for $6,615.72, from which it appealed.

Writ oe Error to reverse a judgment in summary process, brought to the Court of Common Pleas in New Haven County, where, after judgment by default for failure to appear had been rendered, the court, Wolfe, J., granted a motion to erase the cause from the docket and rendered judgment accordingly, from which the plaintiff in error appealed.

<p>Money paid in settlement of a disputed balance, a substantial portion, at least, of which was due, as afterward admitted, cannot be recovered upon the ground that it had been paid under mistake; especially in the absence of any claim of dishonesty or bad faith upon the part of the demanding creditor.</p> <p>In order to avoid the inconvenience of an attachment of some portion of its extensive plant — an attachment which might have been speedily dissolved on the substitution of a statutory bond (§ 5884)— the plaintiff, as stated in its complaint, paid a disputed claim which the defendant, by its present demurrer to the complaint, but not otherwise, admitted to have been excessive in amount. Held that the payment so made could not be recovered upon the ground of duress, and that the demurrer was properly sustained.</p> <p>As between private suitors who stand on equal footing, the due process of the law, invoked in good faith and fairly used, cannot amount to duress.</p> <p>The plaintiff alleged that its payment was made to prevent the shutting' down of its “entire plant.” Held that in the absence of any threat to do that, such a result could not reasonably have been feared.</p>

Action to recover damages for assault and battery, brought to the Court of Common Pleas in Fairfield County and tried to the court, Walsh, J.; facts found and judgment rendered for the plaintiff for $2,000, and appeal by the defendant. For some time before April 2d, 1919, the plaintiff had been employed as a clerk by one Scalley, who owned and conducted a bookstore in Bridgeport.

Actions to recover damages for injury to person and property alleged to have been caused by negligence in the operation of defendant’s automobile, brought to the Court of Common Pleas in Fairfield County, where demurrers to the complaints were overruled (Walsh, J.) and the cases were tried together to the jury before Booth, J.; verdict and judgment for the plaintiff in each case, from which the defendant appealed.

Action to recover damages for causing the death of the plaintiff’s intestate by negligence, brought to the Superior Court in New Haven County and tried to the jury before Burpee, J.; verdict and judgment for plaintiff for $10,000, against the defendant Gustave F. Hemming, from which he appealed.

Action to restrain infringement of property-rights in information contained in business records, and for an account, brought to and tried by the Superior Court in New Haven County, Webb, Jfacts found and judgment rendered for the defendant, from which plaintiff appealed. It appears from the finding that the plaintiff and defendant were formerly partners in the transaction of a general insurance business in the city of New Haven.

Action by a real-estate broker to recover a commission upon the sale of the defendants’ property, brought to and tried by the Court of Common Pleas in Hartford County, Dickenson, J.; facts found and judgment rendered for the plaintiff for $466, and appeal by the defendants.

Action to recover for services rendered in making butter and caring for milk on the defendant’s farm, brought to the Superior Court in Fairfield County and tried to the jury before Keeler, verdict for the plaintiff for $1,905, which the court refused to set aside, and from the judgment thereon the defendant appealed. The plaintiff was the wife of Clearmont Potts, and they were married in 1869.

Action for money lent to the defendant’s intestate, and for services rendered at his request, brought to the Superior Court in Hartford County and tried to the jury before Webb, J.; verdict for the plaintiff for $5,606.51, which the court set aside on the refusal of the plaintiff to file a remittitur of $1,872.22, and from this action the plaintiff appealed. The plaintiff duly presented to the defendant her claim against the intestate estate of which he was administrator.

Action of replevin to recover possession of a colt, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. On November 30th, 1917, Gaetano Cama, leased to Antonio di Gigli a farm in East Haven, together with the live stock thereon, including a mare valued at $250, then with foal, for a term of five years.

Suit to restrain the defendants from interfering with the plaintiff in the use of a driveway upon his premises, and for damages, brought to and tried by the Superior Court in Hartford County, Haines, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant De Feo.

Action for the specific performance of an agreement for the sale of real estate, brought to and tried by the Superior Court in Hartford County, Haines, J., on demurrer to the defense alleging want of consideration; demurrer overruled and judgment rendered for the defendant, from which the plaintiff appealed.

<p>Action on a bond of indemnity, brought to and tried by the Superior Court in Hartford County, Kellogg, ,/.; facts found and judgment rendered for the defendant, from which the plaintiff appealed.</p> <p>The bond sued on indemnifies the Terryville Savings Bank, afterward consolidated and merged with the plaintiff, against loss not exceeding $10,000 through the fraud, dishonesty, forgery, theft, embezzlement, or wrongful abstraction of its treasurer, Frederick A. Scott, directly or in connivance with others. The finding shows that while the bond was in force Scott made numerous advances of money or credit of the. Terryville Savings Bank, to one Block, under the following circumstances: Block kept his checking account with the Thomaston National Bank, in an adjoining town. He was in the habit of overdrawing his account in that bank, and from time to time, on learning by telephone the amount necessary to meet his outstanding checks presented to the bank on that day, he went to the Terryville Savings Bank and gave to Scott his check to the order of the Terryville bank, drawn on the Thomaston bank, for the amount necessary to meet the overdraft, receiving from Scott either cash or checks drawn by Scott as treasurer of the Terryville bank on its account in the Thomaston bank; and these checks and cash Block deposited in the latter bank before the close of banking hours. His own checks given to the Terryville bank would not reach the Thomaston bank until several days later, and were always good when presented. In return for this accommodation Scott demanded and received of Block small amounts of money which Scott kept for himself. Scott knew that many of the checks taken by him from Block were not good when taken.</p> <p>On August 1st, 1918, Block was adjudged a bankrupt, and on December 21st, 1918, his trustee in bankruptcy was duly authorized to bring an action against the Terryville bank to recover the aggregate sum of $13,-897.35, alleged to have been voidable preference payments made by Block to the Terryville bank in settlement of antecedent debts while Block was insolvent and within four months of the adjudication of the bankruptcy, and with knowledge of his insolvency by the Terryville bank.</p> <p>In the meantime, on November 6th, 1918, the Terryville bank had been duly merged and consolidated with the present plaintiff, under the name of the Bristol Trust Company. The Bristol Trust Company then negotiated a compromise with the trustee in bankruptcy and the referee in bankruptcy, whereby the sum of $5,000 in cash was paid to the trustee in full settlement of these claimed receipts of voidable preference payments. During these negotiations the defendant was consulted and consistently denied that the claim of the trustee in bankruptcy was enforcible, or, that if enforcible, it constituted a loss under the policy. This action on the indemnity bond was brought to recover the sum of $5,000 so paid, with interest, on the ground that it is, in the language of the policy, a “loss . . . through the . . . wrongful abstraction of Frederick A. Scott, . . . directly or in connivance with others.”</p>

Action to recover a broker’s commission for procuring a purchaser of the defendant’s real estate, brought to and tried by the Superior Court in New Haven County, Hinman, J.; facts found and judgment rendered for the plaintiff for $3,344, and appeal by the defendant.

) for the advice of this court. The Compensation Commissioner found that on June 28th, 1921, both the plaintiff’s husband and the defendant were subject to the provisions of Part B of the Compensation Act; that on that day and for more than twenty-six weeks prior thereto a contract of employment existed between the plaintiff’s husband and the defendant; that the plaintiff was totally dependent upon her husband within the meaning of the Act; that on June 28th, 1921, her…

Action to recover the reasonable value of services rendered and materials furnished, brought to and tried by the District Court of Waterbury, Makepeace, Deputy-Judge; facts found and judgment rendered for the plaintiffs for $ 530, and appeal by the defendant.

Action to recover a real-estate broker’s commission, brought to the City Court of Waterbury which rendered judgment in favor of the defendant Simon Korkin and against Ray Korkin, from which the latter appealed to the District Court of Waterbury, Peasley, J.; facts found and judgment rendered for the defendant (Ray Korkin), and appeal by the plaintiff from the judgment of the District Court.

Action to recover damages for the alleged failure of the defendant to properly care for a carload of tomatoes during its transportation, brought to the Superior Court in Hartford County and tried to the jury before Webb, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Suit to obtain a transfer of the funds and property of a subordinate lodge after its lapse and the revocation of its charter by the plaintiff association, and for damages, brought to and tried by the Superior Court in Fairfield County, Kellogg, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs.

Suit to restrain the defendant from requiring the plaintiffs to register their motor-vehicles as public-service motorcars, and from requiring them to carry-official number-plates indicating their character as such, brought to the Superior Court in Hartford County where a demurrer to the complaint was sustained pro forma (Avery, J.) and, upon the refusal of the plaintiffs to plead further, judgment was rendered for the defendant, from which the plaintiffs appealed.

Suit to determine the validity and construction of portions of the will of Sylvester Blakeman of Stratford, deceased, brought to the Superior Court in Fair-field County and reserved by that court, Haines, ./., for the advice of this court.

Suit to quiet and settle the title to real estate, brought to the Superior Court in Hartford County and tried to the court, Haines, J.; facts found and judgment rendered for the defendant Cambell, from which the plaintiff and the defendant John Cope appealed.

<p>In an information against an accused for having by night in his possession, without lawful excuse, two instruments of housebreaking, in violation of General Statutes, § 6238, the accused was charged with so having in his possession two iron bars. The court instructed the jury that the State must prove that these bars were instruments of housebreaking, that they were in the possession of the accused at the time charged, which was admittedly by night, and that such possession was without lawful excuse. The court further charged that an instrument of housebreaking might be such from its essential nature, that is, one made and designed for the express purpose of housebreaking, or it might be such only temporarily and for a particular purpose, if it was both reasonably adapted for such use and at the time intended or actually used for that purpose. As to possession the court stated that it might be that of an individual or a joint possession of several; and as to the lawful excuse, that if it was true, as claimed by the accused, that the bar was taken along for repairs upon an automobile or any other purpose of that kind, that would be a lawful excuse. Held that the court’s construction of the statute was clear and accurate.</p> <p>Evidence that the accused’s companions in an automobile at the time of his arrest were searched, and that upon them were found several loaded revolvers, was relevant and competent, as was everything in the car, when the State’s claim was that the accused and his companions were, on the occasion in question, engaged jointly in an expedition for the purpose of commiting burglary or other serious crime of a like nature.</p> <p>Testimony from a lieutenant of police, that pursuant to his orders police officers searched the automobile and brought to him a pistol and a package of bullets, which were laid in evidence, was objectionable as hearsay, since the officers who made the search should have been required to testify.</p> <p>Statements relevant and material to the issue, made in the hearing of an accused, to which he made no reply, are in general admissible in evidence when the circumstances show that he understood and comprehended them, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply; but this rule does not apply when the accused is in custody, since the law accords him the right then to remain silent, and his silence cannot be laid in evidence against him. Statements made to the accused under such circumstances are therefore only admissible when they are relevant and material and are also replied to by the accused in such manner that, if not amounting to a confession, the reply complies with the ordinary rules relating to admissions.</p> <p>Under ordinary circumstances the subsequent exclusion of testimony once admitted will cure any harm from its admission, if the matter is fully and fairly explained to the jury; but whether such exclusion would cure the prejudice to the accused in the ordinary criminal case from the admission of evidence tending to prove that he was a notorious criminal, is questionable.</p> <p>Evidence was admitted and subsequently excluded, of statements by police officers to the accused after his arrest in New York City, that he had just come out from doing seven years in Sing Sing. Held that this evidence was not relevant and material to the charge against the accused, that it was highly prejudicial to him, and that its admission constituted harmful error.</p> <p>A request to charge that if the jury found the accused to have committed another crime, namely, the talcing of gasoline without paying therefor, they should exclude such evidence from their minds, was properly refused, since such evidence was one of the circumstances to be considered by the jury in determining whether the accused was guilty of the essential elements of the crime charged, and the court had made it clear that the accused was not being tried upon any charge concerning the taking of gasoline.</p> <p>Statements of the State’s Attorney in argument to the jury, hM'to have exceeded the generous latitude permitted, and to have been prejudicial to the accused.</p>

Action to recover the value of board and lodging, and for damages for alleged deceit inducing the conveyance of an interest in real estate, brought to and tried by the Superior Court in New Haven County, Hinman, J.; facts found and judgment rendered for the defendant, from which the plaintiff appealed.

Action by the payee against the indorsers of a promissory note, brought to the City Court of New Haven and tried to the jury before Hoyt, J.; verdict and judgment for the plaintiff for $323, and appeal by the defendants.

<p>Action to recover damages for the alleged negligence of the defendant, brought to the Superior Court in Fairfield County and tried to the jury before Keeler, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.</p>

Action to recover damages for the alleged wrongful refusal of the defendant to accept a part of a crop of tobacco pursuant to his ’ agreement, brought to the Superior Court in Hartford County and tried to the jury before Webb, J.; verdict for the plaintiff to recover $995, which the trial court set aside, and from this action the plaintiff appealed.

Action for equitable relief to compel the defendant to execute and deliver to the plaintiff a deed of certain real estate upon payment to her of a sum of money, brought to and tried by the Superior Court, in New Haven County, Banks, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action on a penal bond to recover the penalty of the bond as liquidated damages for breach of a covenant against competition, brought to and tried by the Superior Court in Fairfield County, Kellogg, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

<p>Where the cashier of a bank, with the approval of the president thereof, accepted from a depositor a deposit to be applied for a special purpose for the benefit of a third person, the bank could not then deny the authority of the cashier or the receipt of the money as such special deposit, or claim a lien or set-off for indebtedness due it, since it was bound to the special undertaking and could not, while retaining the fund, assert a claim inconsistent therewith.</p> <p>In a suit by the trustee in bankruptcy of the depositor to recover the balance of the fund, it appeared that the purchase price of mortgage bonds issued by the corporate bankrupt had been specially deposited with the bank to be held and applied to pay for improvements on the mortgaged realty. The mortgagee, a nonresident, was made a party to the action, but was not served with process and did not appear. Held that in the absence of the mortgagee the trustee had no right as against the depositary to recover the balance as general assets of the bankrupt, until the sufficiency of the mortgage security was ascertained.</p>

Action of replevin for the possession of a motor-truck, brought to and tried by the Court of Common Pleas in New Haven County, Booth, J.; facts found and judgment rendered for the plantiff, and appeal by the defendant.

Action against the maker and the indorser of a promissory note for $5,300, brought to the Superior Court in Hartford County where the plaintiff was non-suited in a trial to the jury before Webb, J., and from the refusal of the court to set aside such judgment, the plaintiff appealed.

<p>Indictment for murder in the first degree, brought to the Superior Court in Hartford County and tried to the jury before Warner, J.; verdict and judgment of guilty of murder in the second degree, from which Klein and Bessler, two of the five accused, appealed.</p>

Pro Forma Award of the Compensation Commissioner of the first district, filed in the Superior Court for Hartford County pursuant to § 16 of Chapter 142 of the Public Acts of 1919, and reserved by that court, Avery, J., for the advice of this court. One George Storms, on April 5th, 1919, suffered an injury arising out of and in the course of his employment by the defendant manufacturing company, from which he died on April 20th, 1919.

Action for the reformation of a policy of fire insurance, and for the recovery of a loss thereunder, brought to the Superior Court in Windham County where the issues affecting the reformation of the policy were tried to the court, Webb, J., and those touching the question of loss were tried to the jury at the same time; the court reformed the policy and upon a verdict for the plaintiff rendered a judgment in his favor for $1,914, from which the defendant appealed.

<p>The plaintiff sought to foreclose a mortgage on a farm which she had sold to the defendants, and which they had mortgaged back to her for $1,800 to secure their note for that part of the purchase price. The answer and counterclaim of the defendants were to the effect that in a written contract preceding the conveyance, the plaintiff had promised and agreed to deed to them a farm of sixty acres, whereas in fact the farm conveyed contained but forty-five acres, causing them a loss or damage of more than $2,000. Upon the trial the defendants proved the foregoing allegations of their answer and counterclaim, but failed to furnish the trial court with evidence upon which their damages, if any, caused by the plaintiff’s breach, could be legally estimated. The trial court thereupon rendered judgment for the plaintiff for the full amount of the note with interest, treating the case as though it presented a charge of fraudulent representations upon the part of the plaintiff, which the defendants had failed to establish. Held that in so doing the court erred; that the plaintiff had obviously broken her contract and was not entitled to a judgment for the full amount of her note, though the damages occasioned by such breach had not been legally shown; and therefore the cause must be remanded for a further hearing upon that branch of the case, upon the determination of which depended the judgment to be ultimately rendered.</p> <p>Pleadings should state the material facts with reasonable certainty; and if they fail to clearly define the issues, the court will give the allegations such a construction as will make them conform to the general theory intended by the parties and at the same time do substantial justice between them. But allegations of fraud, or of fraudulent representations, are not to be supplied by conjecture or by remote implication.</p> <p>An allegation that the plaintiff agreed in writing to convey a farm of sixty acres but in fact conveyed one of only forty-five, does not allege fraud but only a breach of contract.</p>

Sdit to foreclose a mortgage of real estate, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff, and appeal by Samuel and Abraham Torchinsky, two of the defendants. ■ The mortgage note in suit was payable in instalments, and it provided that upon failure to make any payment of principal or interest for thirty days after the same became due and payable, the whole amount of the note then remaining unpaid should…

<p>In a suit upon the defendant’s written guaranty of a promissory note for $500 in which the plaintiff’s assignor was payee, and which was secured by a third mortgage, the defense was that by the acts hereinafter stated the defendant was discharged. It appeared that upon foreclosure of the second mortgage, the plaintiff, without the defendant’s knowledge, entered into an agreement with the owner of the equity and the second mortgagee, pursuant to which the latter, upon obtaining title absolute, reconveyed to the owner, who made a payment reducing his indebtedness, gave back a second mortgage for the reduced amount, and then gave a new note and third mortgage to the plaintiff for $500. The trial court found that the plaintiff received this new note and mortgage “in substitution of and as collateral for” his original note and mortgage. Later, when the second mortgage was again about to be foreclosed, the plaintiff released his note in return for $290 received from the then owner of the premises, although their value, as the court found, was in excess of all the mortgages. Held that by taking the substitute note and mortgage after the first foreclosure, the plaintiff had not injured the defendant, but, on the contrary, had increased the security for his benefit, by securing the reduction of the prior indebtedness; but that his later conduct in releasing ample security for less than the amount due, caused the defendant to lose his right of subrogation thereto, and thereby discharged him from further liability on his guaranty.</p>

Action to recover moneys received by the defendant as dividends on shares of stock theretofore sold by him to the plaintiffs, brought to and reserved by the Court of Common Pleas in Hartford County, Dickenson, J., upon a demurrer to the complaint, for the advice of this court.

Action to recover savings-bank deposits claimed by the defendant as a gift from the plaintiff’s intestate shortly before her death, brought to and tried by the Superior Court in New Haven County, Hinman, J facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and tried to the jury before Greene, J.; verdict for the plaintiff, which, on motion of the defendant, the trial court set aside and granted a new trial, and appeal by the plaintiff.

<p>General Statutes, § 1007, prescribes that school authorities shall examine persons desiring to teach in the public schools, and give to those with whose moral character and ability they are satisfied, if found qualified to teach reading, writing, arithmetic and grammar, the rudiments of geography and history, and the rudiments of drawing if required, a certificate authorizing the holder to teach in any public school in the town or district so long as desired, without further examination unless specially ordered; that if a person is examined and found qualified to teach branches other than those required in all cases, such branches shall be named in his certificate; and that such certificate shall be signed by a majority of the board or by all the members of the committee appointed by the board to make the examination. Section 1009 provides that no teacher shall be employed in any school receiving any portion of its support from the “public money,” nor be entitled to any wages payable out of any public money appropriated to schools, until and unless he has received the certificate referred to in § 1007. Many years after these provisions were enacted, a law was passed in 1884, now § 856 of the General Statutes, which permits any town, at its own expense, to employ one or more persons to give instruction in its schools in the rudiments of vocal and instrumental music. This statute made no reference to § 1007, nor did it require the examination and certificate of qualification prescribed by that section. Held: — ■</p> <p>1. That the later Act of 1884 (§ 856), being merely permissive in its terms and confined solely to music, was not subject to or controlled by the provisions of § 1007; and therefore if the responsible officials of a town, in the exercise of their discretion in any appropriate manner, had found a person whom they deemed qualified to teach music and who was satisfactory to them in other respects, they might legally employ such person to teach music on such terms and for such time as might be mutually agreeable, and might notify such person of their conclusion in any way they saw fit.</p> <p>2. That the words “public money,” in § 1009, referred to the money of the State appropriated from its treasury to public schools, not to the money of a town raised by taxation or received by it from other sources.</p> <p>The plaintiff, a music teacher, was employed as such by the defendant, and sought to recover damages for her alleged wrongful discharge. Upon the trial the defendant insisted that the certificate required by § 1007 was essential to the plaintiff’s recovery, and as the trial court took that view, the plaintiff asked and obtained a postponement of the trial, and meanwhile applied for orders in the nature of mandamus requiring the school authorities to issue the statutory certificate; these orders were refused, and the plaintiff appealed. Held that the refusal to issue the orders in the nature of mandamus was correct, since the relief so demanded was not essential to the plaintiff’s recovery.</p> <p>A secretary or clerk of a committee cannot properly be ordered to supply an omission in its records of which he has no knowledge or information.</p>

<p>Our statute, § 4945, providing that under certain conditions the issue of a legatee or devisee who dies before the testator shall take the estate so devised or bequeathed, is applicable to gifts to a class as well as to gifts to individuals; but if the decedent died before the will was made and thus never became a member of the class, his issue take nothing under the statute.</p> <p>Presumably a testator in makmg a gift to his “brothers and sisters,” does not intend to include a brother who died two years or more before the execution of the will; and in the absence of anything in the will or surrounding circumstances showing a different intent, this presumption will prevail.</p> <p>After giving his wife a life estate in all his property, with the right to use any or all of the principal if she deemed it necessary for her support, the testator directed that upon her decease, any undisposed portion of the property should be divided “between my brothers and sisters in equal parts.” One brother and three sisters survived the wife, and one brother, who died more than two years before the date of the will, left six children all of whom survived the wife. Held that neither the deceased brother nor his issue were entitled to any portion of the estate.</p>

Petition to obtain the sole custody, care and education of a minor child, brought to and heard by the Superior Court in Litchfield County, Wolfe, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action by an alleged purchaser of eight hundred bags of sugar, to recover damages for its nondelivery, brought- to and tried by the Superior Court in New Haven County, Avery, J.; judgment for the plaintiff for nominal damages only ($25), from which it appealed. The plaintiff operated a chain of grocery stores in Waterbury, and on March 22d, 1920, requested defendant, a retired wholesale grocer, to purchase sugar for it.

; facts found and judgment rendered dismissing the application and confirming the decision of the Utilities Commission, and appeal by the plaintiff.

Indictment for murder in the first degree, brought to the Superior Court in Middlesex County and tried to the jury before Maltbie, J.; verdict and judgment of guilty as charged, and appeal by the accused.

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury before Marvin, J.; verdict and judgment for the defendant, and appeal by. the plaintiff.

<p>Suit to determine the title to certain lands, mortgages and notes, brought to and reserved by the Superior Court in Fairfield County, Banks, J., upon the facts alleged in the complaint, for the advice of this court.</p> <p>The material facts, admitted by all parties, are the following: Thomas F. Martin was the owner of two pieces of land, an unsecured note, and certain notes secured by mortgages on real estate. On March 1st, 1915, he executed quitclaim deeds of some of these mortgages to Thomas Morrissey, trustee, expressing his purpose to assign the mortgages to the grantee, but making no other reference to a trust, and endorsed some of the notes secured by these mortgages to Morrissey, trustee, and some in blank. On the same day Martin executed a quitclaim deed of the two pieces of land to Morrissey, trustee. On March 1st, 1915, Martin also signed a letter addressed to Morrissey, trustee, in which he stated that he had that day assigned and transferred to him “various notes and the mortgages securing the same,” and directed that after his death Morrissey assign and transfer one third in value of these notes and mortgages to each of his two daughters, and hold the remainder as trustee under conditions specified in his will. He did not mention in this letter the deed of the two pieces of real estate.</p> <p>On the same day, March 1st, 1915, Martin made his will, in which he gave one third of his real and personal property to each of his daughters, and the remaining one third in trust to Morrissey to pay the income to Martin’s son during his life, and after his death to pay the principal equally to his two daughters.'</p> <p>On November 30th, 1915, and subsequently, Martin, in the same manner, endorsed and assigned certain other notes and mortgages securing them, to Morrissey, trustee.</p> <p>On May 9th, 1917, Morrissey, trustee, at Martin’s request, executed and delivered to Martin quitclaim deeds of the two pieces of real estate and of all the mortgages before assigned to him by Martin, and therein named Martin’s three children as grantees.</p> <p>On November 5th, 1920, Martin bought from the defendant Hogan a note secured by mortgage, and caused her to endorse it and to execute a quitclaim deed of the mortgage to his three children.</p> <p>On December 8th, 1920, Martin gave his daughter Marguerite Hurley $1,000, for which she made and delivered to him her two notes for $500 payable to herself, her sister and her brother, and a mortgage on real estate to secure the notes.</p> <p>Martin placed all of these deeds and notes and the letter addressed to Morrissey, trustee, in the safe of a lawyer whom he sometimes employed, without giving to him or to anyone any information or instructions concerning them; and all these papers were found thus in this safe after Martin’s death.</p> <p>Martin died January 21st, 1921, leaving only three children, the defendants Mary Edith Wren, Marguerite Hurley, and Albert Y. Martin. Thomas Morrissey, named as executor and trustee in Martin’s will, declined to act in either capacity, and thereupon the plaintiff was appointed administrator with the will annexed and trustee. The plaintiff was also appointed and qualified as conservator of the defendant Albert V. Martin.</p> <p>The plaintiff claimed (a) an adjudication “that the mortgages, notes and real estate described in the complaint were the property of said Thomas F. Martin at the time of his decease”; (b) that the defendants execute any conveyances necessary to vest the title in the plaintiff administrator; (c) any further relief the plaintiff should be entitled to in equity.</p>

Action to recover for a shipment of shoes alleged to have been purchased by the defendant, brought to and tried by the Superior Court in New London County, Brown, J.; facts found and judgment rendered for the plaintiff for $1,702, and appeal by the defendant.

<p>A promise by the owner of real estate to pay a commission to one who, on his own initiative, had found a possible buyer of the property, if the finder would disclose the name of the customer and if the owner should thereafter sell the property to such person, is one made upon a good and valuable consideration; and if the disclosure requested is made and the property is afterward sold by the owner to such person, the promisee may maintain an action to recover the commission, although the sale was effected without further assistance from him.</p> <p>Under such circumstances the plaintiff’s right to recover is not dependent upon proof that he was the procuring cause of the sale.</p> <p>A motion to set aside a verdict as against the evidence, is not a proper method of taking advantage of an alleged variance between the pleading and proof. '</p> <p>In a bill of exceptions the defendant criticised the charge for failing to instruct the jury that the plaintiff, in order to recover, must prove an employment, express or implied, to effect a sale of the property. Held that such instruction was given in substance, and that the jury must have so understood.</p>

Action to recover money paid for goods sold by sample and upon a warranty, and found on inspection not to conform thereto, brought to and tried by the Superior Court in Hartford County, Haines, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.