Volume 98 — Connecticut Reports

Suit to determine the rights and obligations of the plaintiff in its use of funds received by it from the estate of John Mason Loomis, brought to and reserved by the Superior Court in Hartford County, Hinman, J., upon an agreed finding of facts, for the advice of this court. Superior Court advised that plaintiff takes the legacy absolutely and without restriction.

Application to the Superior Court in New London County praying for the return of $1,600 paid by the applicant as part of the purchase price of real estate which he had bid in at its foreclosure sale, which he was afterward unable or unwilling to consummate; the court, Webb, J., heard the parties interested and granted thé application, and from this judgment the third mortgagee, who purchased the property- at a later foreclosure sale, appealed. No error.

Bastardy proceedings, brought by appeal of the plaintiff from a judgment of a justice of the peace to the Court of Common Pleas in Hartford County and tried to the jury before Dickenson, J.; verdict and judgment for the plaintiff, and appeal by the defendant. No error.

Action to recover for services as architects, brought to and tried by the Court of Common Pleas in Hartford County, Molloy, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. Error; judgment to be rendered for plaintiff for such damages as the trial court, upon a rehearing confined to that subject, may find the plaintiff has suffered.

Suit in the nature of an appeal from the action of the Tax Commissioner of this State in assessing a tax of $23,846 upon the net income of the plaintiff and its affiliated companies for the calendar year 1920, brought to and reserved by the Superior Court in Hartford County, Kellogg, /., upon an agreed statement of facts, for the advice of this court. Judgment advised reducing the tax assessed to $4,770.95, and the return of the excess, with interest, to the plaintiff.

Action of replevin for the possession of a piano, brought to and tried by the Court of Common Pleas in New Haven County, Booth, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. No error.

Suit to obtain the annulment or cancellation of a certain deed, or a reconveyance of the property, and for other equitable relief, brought to the Superior Court in New Haven County, where interrogatories touching certain issues were submitted to (Haines, J.) and answered by the jury in favor of the defendants, for whom the other issues were afterward found by the court (Haines, J.) and judgment rendered, from which the plaintiffs appealed. No error.

Appeal by the plaintiff from a judgment of the Superior Court in New Haven County, Hinman, J., vacating and setting aside an award of the Compensation Commissioner of the third district in the plaintiff’s favor. No error.

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, brought to the Superior Court in New Haven County and tried to the court upon demurrer to the substituted complaint; the court (Wolfe, J.) sustained the demurrer and afterward rendered judgment for the defendant the Advertising Corporation, from which the plaintiff appealed.

Suit to determine the construction of the last will and codicil of John H. Beecher of Bristol, deceased, brought to and reserved by the Superior Court in Hartford County, Kellogg, J., upon a finding of facts, for the advice of this court.

<p>A testator gave $5,000 to his thirteen year old daughter, payable at the time of her marriage, “the interest on this money accruing during all the time until the reverting to her of the principle”; and later he gave all the rest of his “cash,” deducting the $5,000 “above mentioned,” equally to his four sons.. Upon a suit to construe the will it was held:—</p> <p>1. That the interest was not intestate estate nor did it pass to the sons on the daughter’s marriage, and that until that time it was to accumulate for her benefit.</p> <p>2. That this interest did not begin to accrue until one year after the testator’s death.</p> <p>3. That the $5,000 bequeathed to the daughter was a present gift vesting in her in point of right at the death of the testator, although it could not be enjoyed if the legatee died unmarried, in which event the principal and interest would become intestate estate.</p> <p>4. That the term “cash” as used in the will included specie, bills and bank deposits, but not the other personalty owned by the testator at his death, which included an interest in a meat business, hides, and household furniture, which were not disposed of by the will.</p> <p>The testator, who throughout his will showed an inability to express himself with grammatical or verbal accuracy, gave the income of his realty to his wife and daughter, to the former for life, to the latter until marriage, and then provided that the “entire income from the real estate proper” (later referred to in the disjunctive, as income or real estate) should “revert to my four sons or as many of them as shall then be living and my daughter.” In a later clause he restated the interest of the wife and daughter in the realty, and then provided that his wife should not have the power to dispose of it, as he desired to have it remain for the use and benefit of his children in the event of his wife’s death. Held:—</p> <p>1. That the two clauses were not inconsistent, but disclosed a clear intention upon the part of the testator to divide his realty equally, in fee, among his five children, taking as a class a present vested interest, subject only to the life estate of his wife and to the daughter’s interest in one half of the income until her marriage.</p> <p>2. That the income of the real estate was to be divided equally between mother and daughter until the latter’s marriage, after which the mother was to receive it all during her lifetime, as she was, also, in case the daughter should predecease her unmarried.</p>

Action to recover a balance of $72 alleged to be due for work done and materials furnished under a building contract, brought to and tried by the City Court of Meriden, Dunne, J.; facts found and judgment rendered for the plaintiff for $9, and appeal by the defendant. Error and new trial ordered.

<p>Appeal from a finding and award of the Compensation Commissioner of the fifth district in favor of the plaintiff, taken to and tried by the Superior Court in New Haven County, Haines, J.; the court confirmed the finding and award of the Commissioner and dismissed the appeal, and from this judgment the defendant appealed. No error.</p>

Writ op Error to reverse a judgment of a justice of the peace in an action of summary process, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, Jthe court rendered judgment for the defendants, finding no error in the record, and the plaintiff appealed. No error.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and tried to the jury before Jennings, J.; verdict and judgment for the plaintiff for $2,000, and appeal by the defendant. Error and new trial ordered.

Action in the nature of ejectment demanding possession of-the described premises and damages, with counterclaim by. defendant demanding specific performance of an oral agreement to convey the premises, brought to and tried, by the Superior Court in New Haven County, Keeler, facts found and judgment rendefed for the plaintiff for recovery of possession and $1,500 damages, and’appeal by the defendant. [Error and cause remanded with direction to set aside the judgment for the…

Suit to determine the construction of the will of Andrew J. Bell of Stamford, deceased, brought to and reserved by the Superior Court in Fairfield County, Wolfe, J., upon the facts stated in the complaint and admitted in the answers, for the advice of this court. On April 21st, 1907, Andrew J. Bell of Stamford died leaving a will executed April 15th, 1901, modified and confirmed by three codicils dated, respectively, March 21st, 1902, August 8th, 1904, and December 5th, 1906.

Application in receivership proceedings by the American Sugar Refining Company, an alleged creditor of the defendant, for the allowance of its claim of $37,653, brought to and tried by the Superior Court in New Haven County, Keeler, J.; facts found and judgment rendered disallowing the claim in excess of $16,028, and appeal by the Sugar Company. Error; cause remanded with direction to allow the claim.

<p>Action to recover an alleged loss under a policy of indemnity issued by the defendant to the plaintiff Bogolwitz, on account of a personal injury caused by him and suffered by the plaintiff Shea, and for which the latter had recovered a judgment for $2,500 in a suit defended by the present defendant, brought to and tried by the Superior Court in Litchfield County, Hinman, J., upon a demurrer to the “special defense”; the court sustained the demurrer and afterward rendered judgment for the plaintiffs for $3,078, from which the defendant appealed. Error, judgment set aside and cause remanded to be proceeded with according to law.</p>

Indictment for murder in the first degree, brought to the Superior Court in Hartford County and tried to the jury before Wolfe, J.; verdict and judgment of guilty of murder in the second degree, and appeal by each of the accused. No error.

Suit to secure the return to the plaintiff town of Suffield of tax moneys alleged to belong to it and to have been turned over by the treasurer of the State, through mistake, to the City of Hartford, brought to and tried by the Superior Court in Hartford County, Kellogg, J., upon demurrers of the respective defendants to the complaint; the court sustained the demurrers and afterward rendered judgment for the defendants, from which the plaintiffs 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 defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Marvin, J.; by direction of the trial court the jury returned a verdict for the defendant, and from the judgment thereon the plaintiff appealed. No error.

Action to recover damages for an alleged breach of promise to marry, and for work and labor done at defendant’s request, brought to the Superior Court in Hartford County and tried to the jury before Marvin, J.; verdict and judgment for the plaintiff for $10,000, and appeal by the defendant. Error and new trial ordered.

Action to recover damages for defendant’s breach of contract to. deliver hat bodies to the plaintiff pursuant to its orders, brought to the Superior Court in Fairfield County and referred to a State Referee who found and reported the facts; the court, Webb, J., overruled a remonstrance to the report of the committee, accepted the report, and afterward rendered judgment {Avery, J.) for the plaintiff for $13,567, from which the defendant appealed. No error.

<p>Action to recover damages for causing the death of the plaintiff’s intestate by negligence, brought to the Superior Couty in Fairfield County and tried to the jury before Avery, J.; the court directed a verdict for the defendant, and from the judgment thereon the plaintiff appealed. $ Error and new trial ordered.</p>

Pro forma award in favor of the plaintiff, by the Compensation Commissioner of the fifth district, filed by him in the Superior Court in New Haven County and reserved by that court, Haines, J., for the advice of this court. Superior court advised to affirm the award of the Compensation Commissioner. The plaintiff is an Italian of fair intelligence, having a limited knowledge of the English language.

<p>It is for the trial court to determine what the facts are upon conflicting evidence; and a finding so made will not be corrected by this court upon appeal.</p> <p>This court will not change a finding respecting an immaterial matter. Common knowledge or experience may properly be used by a trier in determining the probability of the truth of testimony.</p> <p>The impairment of one's earning capacity resulting from a personal injury, is not necessarily measured by the bare amount of wages lost, though evidence thereof is a proper element to be considered in assessing damages for the injury.</p> <p>The fact that one injured through the negligence of another continued to receive from his employer the wages or salary for the time he was disabled, is not available to the wrong-doer to reduce or mitigate the damages otherwise recoverable.</p>

Action to recover damages for injury to the plaintiff’s motortruck and for the loss of its use, alleged to have been caused by the defendant’s negligence, brought to the Court of Common Pleas in New Haven County and tried to the jury before Booth, J.; verdict and judgment for the plaintiff for $415, and appeal by the defendant. Error and new trial ordered unless plaintiff remits %ÍJ¡fí of judgment.

<p>Action to recover the reasonable value of land and rights conveyed by the plaintiff to the defendant, in excess of the reasonable value of land and rights conveyed by the defendant to the plaintiff, brought to and tried by the Superior Court in Hartford County, Hinman, Jupon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed. Error and cause remanded.</p> <p>The complaint sets forth that in February, 1920, the plaintiff and defendant entered into a contract for the exchange of certain land and rights by conveyance from each to the other, as fully appears in the contract, of which a copy is made part of the complaint as Exhibit A; and that on April 29th, 1920, for the purpose of carrying out this contract, the plaintiff and defendant entered into a certain indenture conveying from each to the other the lands and rights referred to in this contract; and a copy of this indenture is made a part of the complaint as Exhibit B. The complaint continues: “4. In and by the terms of said contract Exhibit A it was provided that for the exchange of said property and rights the plaintiff should pay no money but that the amount of money to be paid to the plaintiff by the defendant for said exchange of land and rights, if any, should be the subject of future agreement, and said contract further provided: ‘If the parties thereto cannot agree within ninety days from the date of said conveyance upon the price, if any, to be so paid by said Besse to said First Ecclesiastical Society, then the same shall be left forthwith to arbitration, and if the parties thereto cannot agree upon one arbitrator, then each party shall select an arbitrator, and the two arbitrators so chosen shall select the third arbitrator, and the one arbitrator or the three arbitrators so chosen shall hear and determine the question of the amount, if any, by which said property of said Besse is benefited by said transaction over and above the amount of damage or detriment to said property of said Besse, and make an award thereon, and that the parties agree to be bound by whatever award said arbitrator or arbitrators make and that from said award there shall be no appeal.’ 5. The plaintiff and the defendant were unable to agree within ninety days from the date of said conveyances upon the price, if any, to be paid by the defendant to the plaintiff, and although the parties hereto have repeatedly attempted to agree upon said price, they have utterly failed to agree upon the same. 6. Pursuant to the terms of said contract Exhibit A, on or about the day of , the parties being unable to agree upon one arbitrator, the plaintiff selected and appointed E. Allen Moore an arbitrator and the defendant selected and appointed D. E. Burbank an arbitrator, and thereafter said Moore and said Burbank attempted to select a third arbitrator but although said Moore and Burbank have repeatedly endeavored to agree upon the selection of such third arbitrator they have at all times failed to agree upon any person as such third arbitrator and have failed to select such third arbitrator. Said Moore and Burbank having failed to agree upon the selection of such third arbitrator, said Moore on or about the day of December, 1921, resigned as such arbitrator and the plaintiff and defendant are in hopeless disagreement as to the price to be paid by the defendant to the plaintiff for said exchange of land and rights. 7. The reasonable value of the land and rights so conveyed to the defendant by the plaintiff in excess of the reasonable value of the land and rights so conveyed by the defendant to the plaintiff is $15,000, and the amount by which said property of the defendant is benefited by said transaction over and above the amount of damage or detriment to said property of the defendant is $15,000.”</p> <p>The complaint is dated August 2d, 1922. The demurrer, filed October 31st, 1922, sets up that it appears by the complaint that this action was prematurely brought because (1) the agreement for arbitration was an integral and essential part of the contract for exchange of properties, and is still unperformed by the plaintiff; (2) until so performed there was no controversy between the parties justifying a resort to a court of justice; (3) that the failure of the arbitrators to agree upon an umpire did not break or terminate the agreement for fixing by arbitration the amount due or to become due to the plaintiff; (4) that upon the resignation of the plaintiff’s arbitrator, it was its duty, under the contract, to name another, which it has not done. This demurrer was sustained and from this action and the consequent judgment for the defendant, the plaintiff appealed.</p>

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in the maintenance and operation of an “aeroplane swing” in its amusement park, brought to the Superior Court in Hartford County and tried to the jury before Maltbie, J.; verdict and judgment for the plaintiff for $10,000, and appeal by the defendant. Error and new trial ordered.

Appeal by the defendant from a finding and award of the Compensation Commissioner for the first district in favor of the plaintiff, taken to and reserved by the Superior Court in Hartford County, Hinman, J., for the advice of this court. Superior Court advised to dismiss the appeal and sustain the award of the commissioner. The following facts are found: The plaintiff is the widow of Joseph M. Dupre, deceased.

Action to recover an alleged balance for work and labor and materials furnished, also for extras, in the erection of four buildings for the defendant, brought to the Superior Court in New Haven County and tried to the jury before Marvin, J.; verdict and judgment for the plaintiff for $6,930, and appeal by the defendant. No error.

<p>A building contract provided that the contractor should be paid the cost of the building to be erected by him, plus ten per cent thereof; that $180,000 should be an “outside guarantee price” to the owner, not to be exceeded unless it became necessary to pay to workmen wages in excess of those specified in a schedule made a part of the contract, in which case the guarantee price should be increased by the amount of such excess. It was also agreed that if the cost, as prescribed above, should prove to be “less than $180,000,” the owner should pay to the builder twenty-five per cent of such saving; and that alterations in plans might be made, the cost thereof to be added to the guarantee price. It was found necessary to pay wages in excess of the scheduled amount, and the owner ordered extras, the cost of the two items being slightly less than $50,000. There was admittedly a saving in cost over the estimate, but the parties were at issue as to the method of computing its amount: the owner (defendant) claiming it should be computed as the difference between the actual cost, including therein the excess cost of labor (but not the cost of extras), and $180,000; while the contractor (plaintiff) claimed it should be regarded as the difference between the cost of all items, including the excess labor costs and also extras, and said sum of $180,000. In the former case the saving would be $13,805, and in the latter $41,237. Held, upon a consideration of all the circumstances surrounding the making of the contract, including the fact that its interpretation as claimed by the plaintiff would be wholly advantageous to him and manifestly unfair to the defendant, that the method of computation as claimed by the defendant was the one required by the contract.</p>

Action to recover damages for a breach of agreements to buy sugar of the plaintiffs, brought to and tried by the Superior Court in New Haven County, Hinman, Jfacts found and judgment rendered for the plaintiffs for $237,735, and appeal by the defendants. No error.

Suit to determine the alleged right of the plaintiffs to sell and dispose of their church premises and use the avails in the purchase of.other real estate to be devoted to the same purpose, brought to and tried by the Superior Court in Hartford County, Maltbie, J., upon a demurrer to the amended complaint; the court overruled the demurrer and made its decree in favor of the plaintiffs, and the defendant Ellen F. Brockett appealed.

<p>Actions to recover, in one case the balance of the purchase price of two boat-loads of ice sold and delivered to the Berkshire Ice Company, and, in the other, the contract price of ice sold and delivered to the Naugatuck Valley Ice Company, and also damages for its wrongful refusal to accept the rest of the seven thousand tons of ice it had agreed to take of the plaintiff before November 1st, 1919, brought to and tried together by the Superior Court in Fairfield County, Avery, J.; facts found and judgment rendered for the plaintiff for $3,223 in the one case, and for $6,764 in the other, from which the respective defendants appealed. No error in either case.</p> <p>These cases were tried together under a stipulation that the evidence should be applied to both cases upon all the material issues to which it was applicable. One person acted for, and under the authority of, both defendants in making the contracts involved in these actions, and in all transactions between them and the plaintiff.</p> <p>On April 8th, 1919, the plaintiff, who is a retail ice dealer in Providence, Rhode Island, made a written contract with the American Ice Company to purchase 10,000 tons of ice at $3 a ton, to be loaded by the Ice Company in vessels furnished by the plaintiff alongside the Ice Company’s docks on the Kennebec River and Boothbay, Maine. This contract contained stipulations that the quality of ice should be such as the Ice Company then had in its houses in those places, and that it should be loaded at such of those houses as might be convenient for the Ice Company at the time when the plaintiff’s order for each cargo was given; and that all of the ice purchased should be loaded on or before the first day of November, 1919, and that the plaintiff would be held liable for any remainder of this ice not taken by him before that day unless he should have relieved himself of that responsibility by written notice before August 1st, 1919. The contract required a payment by the plaintiff of $2,000 in cash, and that the ice in each cargo shipped should be paid for by a sight draft attached to the bill of lading until all but 666 2/3 tons had been shipped, and this remainder would then be shipped without a draft.</p> <p>Under this contract the plaintiff had received only 1,000 tons of ice before July 18th, 1919. On that day the defendant, the Berkshire Ice Company, bought from the plaintiff two barge loads of the remainder of the ice contracted for by the plaintiff, at $4 a ton f. o. b. the loading places in Maine. These barge loads were delivered to, received and accepted by that company, and sold by it in the regular course of its business. The shipment by the first barge was paid for in full. The ice on the second barge was received on August 29th, 1919, and this defendant sent its check in payment therefor; but afterward it stopped payment on the check and has ever since refused to pay for this shipment. It contained 1,166 tons, for which at the agreed price of $4 a ton the sum of $4,664 became due to the plaintiff. Of this amount, this defendant paid on June 1st, 1921, $2,000, under a stipulation that this payment should be without prejudice to the rights of either party to this action then pending. There was no evidence that this defendant sold the ice which it received under its contract with the plaintiff, at a lower price than it obtained for other ice during the season of 1919. The trial court ordered judgment for the plaintiff to recover the purchase price of the ice in the second shipment which this defendant received, being $4,664, with interest thereon from November 1st, 1919, to June 1st, 1921, when the payment of $2,000 was made under stipulation, and interest on the remainder of $2,664 from that date to February 24th, 1922, the date of the judgment; total $3,223.85.</p> <p>On July 18th, 1919, the defendant, the Naugatuck Valley Ice Company, also made a contract with the plaintiff to buy 7,000 tons of this ice which he had agreed to take "from the American Ice Company and which was still undisposed of. This contract was drawn up by the agent of the Naugatuck Valley Ice Company after he had read the contract between the plaintiff and the American Ice Company, and after he had been informed that the plaintiff had seen none of the ice except the 1,000 tons he had already received, and upon no representations as to quality except that the ice received was of good, merchantable quality. Among the provisions of this agreement were the following: that the Naugatuck Valley Ice Company would “pay $3.75 per ton, f. o. b. loading port”; would “pay bill of lading at $3 per ton and send” the plaintiff “the balance of 75c per ton, and pay $2,000 down to bind the contract ”; and would “take this ice before November 1st.” In compliance with these terms, this defendant paid the plaintiff $2,000 on July 18th, 1919, and sent a barge to the designated loading places in Maine for a load of ice. This barge was loaded between August 21st and 29th, 1919, with 1,238 tons of ice, and arrived in Bridgeport on September 9th, 1919, when this cargo was accepted by this defendant and afterward sold by it in the regular course of its business. There was no evidence that the price obtained for this ice was lower than the price of other ice sold during the same season. This defendant has refused to pay for this load of ice, but on June 1st, 1921, made a part payment of $1,000 under a stipulation that this payment should not prejudice any right of either party in this action then pending. The trial court directed judgment to be entered for the plaintiff to recover from this defendant the purchase price of this ice, 1,238 tons at $3.75 a ton, amounting to $4,642.50, less the $2,000 paid when the contract was made, with interest on the remainder from November 1st, 1919, to June 1st, 1921; and less the $1,000 paid on that day under stipulation, with interest on the then* remainder from that date to February 24th, 1922, the date of judgment.</p> <p>All the ice delivered to and accepted by the defendants under their contracts was good, merchantable ice, equal in quality to that generally available for the trade throughout the season of 1919. Neither defendant offered any evidence of loss or damage resulting to it by reason of the quality of the ice delivered.</p> <p>On August 29th, 1919, the Naugatuck Valley Ice Company notified the plaintiff by letter that it would not want any more of his ice after it had received the boats already chartered, meaning the three barges hereinbefore mentioned. On September 3d, 1919, this defendant sent the following letter to the plaintiff: “This will notify you that we will not accept any more of your ice after the barge we have chartered arrives. The ice you are shipping us is not as you represented it to be but you are sending ice that is not merchantable. We have requested you to come and inspect same for yourself but as yet you have failed to do so and we cannot use any more of it.” The plaintiff received this letter September 7th or 8th, 1919, and thereupon made efforts to resell the ice which this defendant refused to take, but did not succeed, and was not able to fulfil his contract with the American Ice Company to take 10,000 tons of ice before November 1st, 1919. The quantity which he could not take was 5,619 tons. After the bringing of these actions and before the trial, the American Ice Company, having been paid $3 a ton for the ice taken, released the plaintiff from his obligation to take the remainder, on condition that he waive all claims against this defendant for damages based upon the amount which he would otherwise have to pay to the American Ice Company on account of the ice not taken before November 1st, 1919. Therefore the court fixed the plaintiff’s damages because of this defendant’s breach of contract at 75 cents a ton of the ice it had refused to take, and found that the plaintiff was entitled to recover, in addition to the contract price of the ice sold and delivered, the sum of $4,214.25, as damages for nonacceptance of undelivered ice, with interest thereon from November 1st, 1919, to the date of judgment.</p>

Information for hunting” on Sunday, brought by appeal from a judgment of a justice of the peace to the Criminal Court of Common Pleas in New Haven County and tried, by election of. the accused, to the court, Booth, J.; facts found and judgment of guilty rendered, from which the accused appealed. No error. The accused was prosecuted for violation of § 3173 of the General Statutes, reading as follows: “Sunday hunting prohibited.

Action by a real-estate broker to recover a commission or compensation for his services in effecting an exchange of properties, brought to the Court of Common Pleas in Litchfield County and tried to the jury before Woodruff, J.; verdict and judgment for the plaintiff for $535, and appeal by the defendant. Error and new trial ordered.

Action to recover moneys advanced tó the defendant, and the value of materials furnished to it, to enable it to make and deliver war material, brought to the Superior Court in Fairfield County where a demurrer to the first and third counts of the amended complaint was overruled {Keeler, J.) and the cause was afterward tried to the court, Banks, J.; facts found and judgment rendered for the plaintiff for $44,416, and appeal by the defendant. No error.

Action by the payee against the maker of a promissory note for $300, brought to and tried by the Court of Common Pleas in Litchfield County, Woodruff, J.; the court nonsuited the plaintiff, and from its refusal to set aside such judgment the plaintiff appealed. Error and new trial ordered.

Action to foreclose a mechanic’s lien, and for damages, brought to and tried by the Superior Court in Hartford County, Kellogg, J.; facts found and judgment rendered for the plaintiffs for $1,858 damages, only $476 of which was adjudged to be secured by the lien sought to be foreclosed, from which the plaintiffs appealed. Error; plaintiff’s lien held valid for the whole sum due, and judgment to be entered accordingly.

<p>A lease for five years from February 1st, 1917, with an option for an additional term of five years at a yearly rental of 8840, provided that if the city in which the premises were located “should go no license” then during the time the city “is no license” the rent should be one half the above sum; and that such stipulation should apply to the original and optional lease. The lessee exercised his option and the sole question was as to the rental for the optional term. Held that the parties were obviously concerned with the situation which might exist in the future respecting the sale of liquor in the city in its bearing upon the rental value of the leased premises, and not with the manner or method whereby such sales might be allowed or prohibited; and therefore inasmuch as the city had become “no license” by virtue of the adoption of the Eighteenth Amendment and the passage of the so-called Volstead Act—as well as by our own statute repealing all laws authorizing the granting of liquor licenses (Public Acts of 1921, Chap. 291)— as effectually as if the city itself had voted or “gone” no license, it would violate the manifest intent of the contract to hold that the rent should not be reduced.</p>

<p>Action to recover for personal services rendered for the defendant’s testator during an illness of about three years before his decease, brought to and tried by the Superior Court in Hartford County, Brown, J.; facts found and judgment rendered for the plaintiff for $890, and appeal by the defendant. No error.</p>

Action to recover upon a written contract involving thé sale and purchase of ale, lager beer and porter, brought to and tried by the Superior Court in New Haven County, Keeler, J.; facts found and judgment rendered for the plaintiffs for $3,499, and appeal by the defendant. No error.

<p>Appeal by the plaintiff from the refusal of the Compensation Commissioner of the first district to award him compensation because no written notice of his claim had been served upon the defendant within one year from the date of the injury, taken to and tried by the Superior Court in Hartford County, Hinman, J the court dismissed the appeal and confirmed the decision of the Commissioner, and from this judgment the plaintiff appealed. No error.</p> <p>On September 19th, 1919, the plaintiff, who was employed by defendant, sustained an injury to his leg arising out of and in the course of his employment. Of this injury the defendant had prompt knowledge, and in fact paid a part of plaintiff’s hospital bills.</p> <p>' The plaintiff was an ignorant man, unable to speak or write the English language. Failing to obtain compensation from the defendant, he came to Hartford in search of the Workmen’s Compensation office, and he was, through misunderstanding, directed to the office of the United States Fidelity and Guaranty Company, which he believed to be the Workmen’s Compensation office. The officiate of the insurance company were led to believe and understand that the defendant was one A. R. Holcomb, a tobacco farmer of the same town as the defendant herein, and who at that time was insured in the company, and payments were accordingly made the plaintiff under a misapprehension of fact, until the error was discovered more than a year later, when they were discontinued on the volition of the United States Fidelity and Guaranty Company, which discontinuance was later confirmed by order of the Commissioner. Under this agreement the United States Fidelity and Guaranty Company paid the plaintiff $953.78.</p> <p>No written notice of claim was served by the plaintiff upon the defendant within one year from the date of the injury; nor was there, within said period, a hearing, a written request for a hearing, nor an assignment of a hearing, nor the submission of a voluntary agreement.</p> <p>Before the Commissioner, the plaintiff contended that the terms of General Statutes, § 5360, should not be applied in the case at bar, because he had been misled through the payment by the defendant of a part of his hospital bill and the payment of compensation by the United States Fidelity and Guaranty Company, and asked that an award be made against Archie E. Holcomb for the sum due him as compensation. The Commissioner overruled this contention and dismissed the claim.</p> <p>Plaintiff appealed to the Superior Court, assigning as reasons of appeal the ruling of the Commissioner, that under the facts as found the plaintiff was not excused from giving written notice of claim within one year, or a written request for a hearing, or assignment of a hearing, or a submission of a voluntary agreement; and also in holding and ruling that plaintiff’s right of action had expired under § 5360 of the General Statutes as amended.</p> <p>The Superior Court found the issues on appeal for the defendant, and on appeal to this court plaintiff assigns as error the action of the court in overruling his claims as above set forth.</p>

Action to recover the amount of a bank check signed by the defendant and payable to the order of the plaintiff, brought to and tried by the Court of Common Pleas in Hartford County, Dickenson, J.; facts found and judgment rendered for the plaintiff for $344, and appeal by the defendant. Error and new trial ordered. The plaintiff is a corporation, engaged in the wholesale grocery business.

Action to recover damages for alleged slander, brought to and tried by the District Court of Waterbury, Makepeace, Deputy-Judge; facts found and judgment rendered for the plaintiff for 130, and appeal by the defendant. Error: judgment to be entered for defendant.

Action to recover the sum of $1,890 expended by the plaintiff in completing a certain painting job which the defendant Hawley had abandoned, and for a declaratory judgment establishing the rights of the parties, brought to the Superior Court in New Haven County where the demurrer of the defendant surety (the New Amsterdam Casualty Company) to the original complaint was overruled (Maltbie, J.), and its demurrer to the amended complaint was sustained, Wolfe, J.; thereafter,…

Action to recover damages for stealing a large quantity of merchandise from the plaintiff’s place of business and disposing of the same pursuant to an agreement and conspiracy between the defendants, brought to and tried by the Superior Court in New Haven County, Banks, J.; facts found and judgment rendered for the plaintiff for $2,729 against both defendants, and appeal by the defendant Salvatore Apuzzo. No error.

Appeal by tbe defendant from a pro forma finding and award of the Compensation Commissioner of the first district, taken to and reserved by the Superior Court in Hartford County, Hinman, J., upon the Commissioner’s finding, for the advice of this court. Superior Court advised to set aside the award and remand the cause to the Commissioner for further proceedings.

Suit to determine the- rights of the plaintiff in and to a share of the estate of Henry B. Beach of Meriden, deceased, under the terms of his will, brought to and reserved by the Superior Court in New Haven County, Webb, J., upon the facts alleged in the complaint, for the advice of this court. Judgment advised for the plaintiff. Henry B. Beach died in 1908, leaving a widow and five children, and a will executed in 1904. His widow died in 1913.

Action to recover damages for injuries to the person and automobile of the plaintiff, 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 Keeler, J.; the jury returned a verdict for the plaintiff for $1,000, which the trial court set aside as against the evidence, and from this decision the plaintiff appealed. No error.