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day after could not affect the cause of action. This testimony
could have been offered for one purpose only, to bring in the
declaration of Mitskey that he had bought the dog. No au-
thority can be found to sanction this decision ot^ the court.
JEnos V. TufOe, 3 Conn., 250.

4. The court erred in charging the jury that the statute
provided that every dog should be presumed to be owned by
the owner or occupier of the premises on which such dog
should be kept or harbored. The statute referred to raises
the presumption of ownership in tlie occupier of premises for
the purpose of registering the dogs and taxing their owners,
and for that purpose only ; and evidently this statute is con-
clusive, and the owner of the premises is precluded from
showing the contrary in all cases provijjed for by the statute.
If this be the correct construction of the statute, then when
the court informed the jury of such provision of the statute,
the jury were bound to consider this presumption of the
statute conclusive, and that they must find Mitskey to be the
owner, notwithstanding all evidence to the contrary. It cer-
tainly could not have been the intention of the legislature to
prescribe a rule of evidence applicable to all cases in which
the title to dogs should come in question ; for in that case



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MAY ADJOURNED TERM, 1870. 91

Burus V. Fredericks.

any trespasser who could get a dog upon his premises could
set the owner at defiance.

Sanfordj contra.

Butler, 0. J. This was an action to recover for damage
done by a dog, against the defendant as owner, the dog at
the time being in the keeping of another person, one Mitskey,
whom the defendant claimed to be the owner. The case pre-
sents numerous questions, which will be considered in the
order in which they are presented by the motion.

1. Tlie first two questions relate to declarations by Mits-
key to the plaintiflTs father, after the injury, while he was in
possession of the dog, to the effect that the defendant was
the owner. Tlic plaintiff s6ught to get these declarations
before the jury, as evidence that the defendant owned the dog.
The court properly excluded them. Mitskey was not the
agent of the defendant, nor the keeper of the dog under the
defendant, and was interested to impose the ownership on the
defendant to avoid liability for the injury. The declarations
were clearly inadmissible.

One Wielbacker was examined as a witness for the plain-
tiff to prove the injury and how it occurred. The motion
does not show that his testimony in relation to what took
place at the time of the transaction was objected to by either
party. But on his cross-examination the defendant's counsel
inquired of him whether he had not said that the dog was
not to blame, which question and answer were olyected to,
but admitted by the court. Tlie witness answered that he
had not so said. The motion does not show particularly
what the testimony of Wielbacker was. The question clearly
had relation to the matter testified to by the witness in chief,
and the motion does not show that the declaration would not
have tended to contradict the witness, nor that it was not
within the latitude of cross-examination which the court in
its discretion might properly admit.

8. The defendant also inquired of another witness, Sarah
Burns, whether Wielbacker had not told her that the dog



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92 FAIRFIELD COUNTY

Burns v, Fredericks.

was not to blame. The bearing of this question clearlj was
to contradict the testimony of Wielbacker, and it was clearly
admissible. It is not an answer to this view of the case to
say that the question involved a mere matter of opinion. The
declaration if made may have reached much farther, and for
aught that appears on the motion may have tended to show
that Wielbacker had not stated in his testimony all the acts
of provocation committed by the plaintiff upon the dog, or
had not stated them truly. And the same iiew is taken of
the testimony of the defendant on the same point, which was
objected to for the same reason.

4. The defendant also offered the declaration of Sarah
Burns that she knew the dog was not to blame for what he
had done, and that declaration was objected to and admitted.
Sarah Burns had been inquired of when on the stand as wit-
ness for the plaintiff, whether or not Wielbacker had told her,
on the night following the accident, that the dog was not to
blame. She was also inquired of whetlier the plaintiff had
not told her so. She answered both questions in the negative.

The motion shows that Wielbacker and the plaintiff were
present at the injury but does not show that any other fit-
nesses were. If the witness had herself admitted that she
had made such a declaration, it would have tended in some
degree to show that she had received a different version of
the transaction from that testified to by Wielbacker and the
plaintiff and received it from them. The bearing of the tes-
• timony was evidently slight, but we cannot say that it was
inadmissible, or that it was of sufficient importance if inad-
missible to justify the granting of a new trial.

5. The defendant offered the declarations of Mitskey to
him, to the effect that he bought the dog of the defendant,
but would not have him any longer. The testimony was
offered and received to explain the fact that the defendant
took possession of the dog on the next day, and for that pur-
pose was clearly admissible.

6. The motion states that the court charged the jury,
among other things, that the statute provided that any dog
should be presumed to be owned by the owner or occupier of



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MAY ADJOURNED TERM, 1870. 93

Parrott v. Stevens.

the premises on which such dog was kept or harbored. We
cannot find error in this part of the chai'gc. This is the
plaintifif's motion, and he is bound to point out clearly the
error of which he complains. It is said that this was charged
" among other tilings," but among what other things, or in
what connection with them, or for what purpose, does not
appear. There is such a statute, and the motion shows that
the judge alluded to it in his charge, but in what connection,
or for what purpose, or what construction he gave it, or what
application he made of it, or how the plaintiflF was or could
be aggrieved by the allusion to it, does not appear, and the
objection need not be considered. '

For these reasons we advise the Superior Court that a new
trial should be denied.

In this opinion the other judges concurred.



37 93

I qg 485 |



John W. Parbott vs. Eltphalbt B. Stevens.

The act of 1866 (Ch. 74, sec. 4,) which gives a right of appeal from any judg-
ment rendered by a justice of the peace for more than five dollars, except npon
the verdict of a jury, is repealed by implication by the act of 1868, (Ch. 99,
sec. 2,) which provided that such appeals shall be allowed where the matter in
demand exceeds fifteen dollars.

Application for a mandamus, brought to the Superior Court
in Fairfield county, and reserved for the advice of this court.
Tlie case is fully stated in the opinion.

Bearddey and Thompson, for the petitioner.

(?. Stoddard and M. W. Seymour, for the respondent.

Butler, C. J. The petitioner seeks a mandamus to com-
pel the respondent to allow an appeal from a judgment ren-



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94 FAIRFIELD COUNTY.

Parrott v. Stevens.

dered by him as justice of the peace, for the sum of $8.50, in
a Ruit brought against the petitioner, demanding $14.00 dam-
ages. The respondent resists the application, on the ground
that the petitioner had no right of appeal in the case by stat-
ute, because such right is given in those cases only where the
sum demanded in the original writ is $15.00. The petitioner
claims the right of appeal on the ground that such right is
given by the act of 1866, (chap. 74, sec. 4,) which author-
ized an appeal where the Judgment exceeded $5.00. The
case turns upon the question whether the act of 186* was
repealed, by implication, by the act of 1868.

We are all of opinion that the legislature could not have
intended that the right of appeal from the judgment of a jus-
tice of the peace should depend upon two such distinct, dif-
ferent and inconsistent facts, and that the act of 1866 was
repealed by that of 1868.

It has always been the policy of the state to determine
the jurisdiction of its courts, superior and inferior, by the
amount demanded in the suit. For more than a century
prior to 1853 the statutes were uniform in relation to appeals
from justices, except as to the sum, which was changed from
time to time, and the provision, omitting the sum fixed at the
various times, was as follows : — " Where the sum demanded
shall exceed the sum of &c., an appeal shall be allowed to
the next county court, except in actions brought on notes
of hand or bonds vouched by two witnesses, in which case
no appeal shall be allowed."

In 1853 that provision was repealed, and an appeal allowed
from the judgment of a justice of the peace in all cases, and
80 the law stood until 1866. In that year an act was passed
authorizing jury trials before justices, and in that act, by sec-
tion 4th, appeals from justices were limited and forbidden
where the judgment rendered by a jury should not exceed
$35.00, or where the judgment should be rendered by the
justice otherwise than upon the verdict of a jury for a sum
not exceeding $5.00. This was introducing a basis of limit-
ation to regulate the right of appeal, not before known to
our law.



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MAY ADJOURNED TERM, 1G70. 95

Parrott r. Stevens.

We think it clear thai it was the intention of the legisla-
ture, in passing the act of 1868, to return to our original
policy and make the right of appeal dependent upon the sum
demanded in tiie suit. W^ cannot believe that it was the
deliberate intention of the General Assembly to have two
different and distinct limitations to regulate the right of a{>
peal so diverse in principle and effect. It is obvious that if
both are permitted to stand, an appeal must be allowed where
the demand is sufficient, though the judgment may be insuffi-
cient ; or on the other hand when, as in this case, the demand
is insufficient, but the judgment sufficient ; or else the two
requisites must coexist. We think such a state of things
could not have been contemplated, and must therefore hold
that the act of 1868, being thus inconsistent with that of
1866, and an apparent return to a settled policy and abandon-
ment of a novelty in our law, was intended as a substitute
provision for that contained in the latter act.

To this it should perhaps be added that we have recently
holden, in the case of Werner v. Phelp%j 36 Conn., 357, that
the act of 1868 repealed by implication the act of 1867 which
required tlie filing of an affidavit of merits before an appeal
should be allowed. There is no repealing clause in the act
of 1868, and the implication is qmte as strong in relation to
this subject as to that.

For these reasons we advise that the application should be
dismissed.

In this opinion the other judges concurred.



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96 FAIRFIELD COUNTY.



Marvin i;. Treat



Robert H. Marvin vs. Merritt E. Treat.

The plaintiff recorered a horse and wagon that had been stolen from the defend-
ant, and notified him by telegraph, and on his arriving delivered them to him.
When the defendant took them away he paid two small bills growing out of the
matter to other persons present, and just as he was leaving handed the plain-
tiff some money, saying, *' Here is something towards what yon have done, and
if you ,wiU catch the thief I will give you $25." The plaintiff replied that he
would do all he could. The plaintiff did not look at the money until the de-
fendant was gone, when he found it to be $2. The defendant had in fact on
the morning of that day posted handbills offering a reward of $50 to any one
who should recover and return the horse and wagon, and $25 for the arrest of
the thief, but the plaintiff did not know of this ofier until a few hours after
the defendant had left In an action to recover the reward oflered, it was held

' that the plaintiff had accepted the $2 in satisfieu^tion for his services, and
could not recover the reward.

Assumpsit, to recover a reward offered by the defendant
for the recovery of stolen property, with the common counts ;
appealed by the defendant from a justice of the peace to the
Superior Court, and tried to the jury on the general issue,
with notice of an accord and satisfaction, before Sanford^ J.

The evidence introduced by the plaintiff, (omitting some
immaterial parts,) was as follows :

Robert H. Marvin. Am the plaintiff. Reside in Bridge- '
port, and did in 1867. I received there the following despatch,
May 6, 1867, between nine and half-past nine in the morning:
" To Chief of Police : Horse and carriage stolen. Horse
six years old, bright bay, left hind foot white ; interferes ;
top box buggy, side curtains, patent hubs. Merritt Treat.^^
Envelope was directed to chief of police. I had orders to
open despatches that came while I was on duty. I went to
the west side of the depot and asked the hackmen if they
had heard of any such horse and carriage, and they said they
had not. I went to the Atlantic stables and enquired. The
hostler did not know. I went back to the depot. Soon after
I saw Mr. Edwards. He said he believed there was such a
horse and carriage over in East Bridgeport. I asked him to
hitch up his team and drive me over there. He did so and
took me to John White's place. I asked White if he had a
horse and carriage in his stable which did not belong to hinir



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MAY ADJOURNED TERM, 1870. 97

Marvin v. Treat

He said he had. I told him I would like to see it. He went
with me to the staMe and Edwards with us. He opened the
door and we went in and saw the horse and carriage. I took
out the despatch and read it to them. Horse and carriage
answered the description. I told White it was stolen prop-
erty and I wanted it. I asked him where he found it. He
said he found it hitched to a tree near his place, and that he
supposed it was some doctor's team and after letting it stand
there some little time lie thought he would put it into liis
barn. I asked him how much his bill would be for what he^
had done. He said he thought about $5. I told him I would
see before it left; my possession that he should have it. Told
him we would hitch up and I would take it oyer to town. We-
did so. I got in and drove into the street. Had driven a*
few rods when White called to me. I stopped. He said " I
am going over to town ; I'll ride with you." I said "All'
right, get in." He got in and we drove to Edwards's stable.
White got out and went away. I asked the hostler to take-
care of the horse. I jumped out of the carriage. Don't
know whether White was there or not. I did not see him.
I said to the hostler, " It is stolen property, keep it till I call
for it. Let no man take it without my order." I then tele-
graphed to Treat that I had his horse and carriage and to
come down on the ti-ain. i saw Edwards half an hour after-
and told him I had put the horse in his stable, and not t6»let
any one have it till I called for it. Edwards was proprietor-
of the stable. I went about my business. In the afternoom
at 3 o'clock I met Treat, tlie defendant, and his brother-in-
law, near the Atlantic Hotel. Treat said, "Have you a horse
and carriage which belongs to me ?" I told him I had, and
if he would come to the stable I would show it to him. We
went into the carriage house and showed him the carriage.
He said it was his. Then into the stable ; and he said the
horse was his. He told how the horse was stolen ; talked
half an hour. Missed his lap robe. Edwards's driver had
the lap robe. Treat said he would give me $25 if I would
catch tlie thief and he was convicted. I told him to leave
the robe and I would do what I could towards catching him.
Vol, xxxvn. — 13



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98 FAIRFIELD COUNTY.

Manria ». Treat

I said any time you are ready for your horse and carriage I'll
have it hitched up for you. He said that he was ready. I
told the hostler to hitch it up. I asked Mr. Edwards if his
bill wa43 settled. He said yes. I theh said to Treat, " Here is
Mr. Wliite, he has a claim for $5- He put him in his barn,
and I told him he should have his money before the horse
went away." White said, " Mr. Treat has already settled
mth me." I tlien said, " Your claim is satisfied is it ?" He
said, "Yes." Treat turned away and handed me some
money rolled up. 1 did not know how much was in the roll
when he handed it to me. Tlie amount was $2.00. He said,
" Mr. Marvin, here is something towards what you have done,
and if you will catch the thief I will give you $25." " I told
him I should do all I could. They drove away. I had never
seen the published handbill at that time. I didn't see it that
day. I heardy of it that evening, not far from five o'clock.
That was the first I had heard of the $50 reward. Treat
had been gone two hours when I heard of it. This is the
handbill : " $75 REWARD. Stolen on the evening of May
6th, from the subscriber, a horse, top buggy, robe and blanket.
The horse is six years old, bright bay, black mane and. tail,
small star in the forehead, left hind foot white, a spot on the
inside of left hind leg with hair off, weight about 1,000 pounds ;
top buggy, square body, patent hub&, side curtains. $50 will
be paid for the recovery of tjie property, and $25 for the de-
tection of the thief. Orange, Ct., May 6th, 1867. MerrUt
E. Treat '^ I afterwards demanded the $50 reward of Treat.
It was that slame week I recovered the property. Payment
was refused. The $25 for the detection and conviction of
the thief was afterwards paid. The value of the horse and
carriage was $500. I rendered the service in expectation of
a reward.

Cross-examined. I was on duty as policeman on that
day. I commenced not far from seven o'clock A. M. I
stopped at quarter to six at night. Was on duty at the time
I received the despatch and continued so during the day. My
duty was to look out for disturbances, arrest thieves, &c.
Continued on duty as policeman during the day and was paid



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MAY ADJOURNED TERM, 1870. 99

Manrin v. Treat.

therefor by the city. I got the despatch between nine and
half-past nine. White tohl me he had been over into town.
Don't know as he told me for what. After I came to town,
he told me he had advertised. Don't know whether he did
before or not. Don't know as he said he had been to the
livery stables to give notice. Think he did tell me so at
some time. Don't know but he said he had to pay something
to the newspapers, when he said he wanted $5. White did
not object to giving up the horse and carriage. He said he
thought it could remain there as well as to be taken to town.
I told him I could take it to town, and he should receive his
money. He was satisfied. He rode over with me. Didn't
see Treat pay White. Treat offered $25 for the thief and I
afterwards got it. I did not find the robe with the carriage.
Never found it until Treat came there. I can't say as I found
it then. Treat left it with me to enable me to catch the thief.
The telegram was paid which I opened. I probably didn't
pay the one I sent. Can't say who paid Edwards for carry-
ing me to East Bridgeport. Didn't tell me he would pay any
more. He said here is something for what you have done.
Didn't intimate to him that I wanted any more. I didn't ask
Treat if any reward had been offered. Don't think White or
I talked about a reward.

Horatio N. Sherman, Lived in Derby in 1867. Was con-
stable of the town. I saw a handbill like this on the 6th day
of May, 1867, about nine o'clock in the morning. Treat
gave me the handbill.

Edwin JEdwards. Keep the Atlantic stables, Bridgeport.
Saw Marvin, May 6th, 1867, at my place with a despatch
from Derby stating that a horse and buggy had been stolen.
'' Told him 1 thought I knew where they were ; that White
had been to my place that morning and said he had taken up
a horse and buggy ; that he wished to know if I knew of any
one who had lost one, and was going to the papers to adver-
tise. I told Marvin I thought this was the team he was
looking for, and that we would go over and see. We went
over and found the horse and buggy in White's barn. Marvin
stated to White in substance that he had a despatch from



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100 FAIRFIELD COUNTY.

Manin v. Treat

Derby that a horse and buggy had been stolen there, and that
he wished to get it. We looked at it and . concluded it was
the one the despatch called for. White wished to know why
it would not be as well to leave it in his barn as to take it
away. Marvin said they had telegraphed him to secure the
property. There was some talk ; finally White told Marvin
as he was a policeman he should let him take it. They took
him out, hit<5hed up, and Marvin got in and drove away.
White hailed him and said he was going to town and would
ride with him. He stopped ; White got in and they went off
together. Marvin had the reins. In the barn White said,
I don't know but there is some reward offered for this. Mar-
vin said he thought not; you can read the despatch for
yourself; there is nothing said about it in that. Marvin
asked White what his bill would be, and he said $5. He said
he would see that he had it. I wasn't at my stable when they
got there. I got there in a short time. Marvin put the
horse in my charge and told me to let no one have it without
orders from him. Treat, the defendant, came to my stable
with another gentleman. Marvin gave orders to have the
hoi-se hitched up, and asked me if Treat had paid me. I
said, '' Yes." I charged $1.50.

The plaintiff here rested his case, and the defendant moved
for a non-suit, which the court granted. The plaintiff then
filed a motion to set aside the non-suit, which being denied
he brought the record before this court by motion in error.

Sanfordj for the plaintiff.

1. The non-suit was incorrectly ordered, because the ^
plaintiff had made out a primd facie case, under the common
counts at least. The plaintiff secured the property and held
it until he delivered it to the defendant. White did not know
that the property was stolen, and was in no sense holding it
fpr* the owner. There was neither proof nor claim that
White would not have given it up to the thief if he had de-
manded it plausibly. Again, the plaintiff notified the defend-
ant by telegraph of his recovery of the property, thus giving
him the first information. Jenkins v. Kelren, 12 Gray, 330.



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MAY ADJOURNED TERM, 1870. 101

Marvin v. Treat.

The ease of SymmeB v. Frazier, 6 Mass., 844, is clearly par-
allel with the case at bar. A recovery was there had on the
quantum meruit^ and the reward advertised was held to fur-
nish the proper rule of damages. To warrant a recovery the
services need not have been rendered on the faith of the offer
of reward. It is sufl&cient that they were performed, were
beneficial, and were accepted. WUliamB v. Carwardine^ 4
Barn. & Adol., 621 ; S.0.,5 Car. & P., 666.

2. The plaintiff was not bound by his duty as a constable
or police officer to secure the property, notify the owner, or
return the property. No authority can be cited which holds,
it to be so. 1 Bum's Justice, 394 ; 1 Bla. Com., 366. On
the contrary, it has been decided in Neville v. Kelly j 12 Com.
Bench, N. aS., 740, that a police constable who has appre-
hended a thief before reward offered, may still recover the
reward. The services were extra, outside of his official duty,
and therefore he may recover. Yates v. JJaZZ, 1 T. R., 73.

3. Under the notice of accord and satisfaction the evi-
dence should have been suffered to go to the jury. The bur-
den of proof under that plea rested on the defendant. By
putting in that plea the defendant admitted a cause of action,
and the evidence offered by the plaintiff showed a payment
of two dollars, which the defendant claimed was, bui the
plaintiff claimed was not, in full discharge. If his evidence
on cross-examination is conflictkig, the jury should have been
permitted to weigh the matter. In reality no contradiction
exists. There is no fair inference that the payment was
received in satisfaction. 1 Swift Dig., 299. Courts should
not non-suit a plaintiff when there is any evidence which by
the most favorable construction would sustain a verdict in his



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