Connecticut. Supreme Court of Errors.

Connecticut reports: containing cases argued and determined in ..., Volume 50 online

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By banks & BROTHERS,


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Entered according to Act of Congress, in the year one thousand eight htni*
dred and eighty-three, for the State of Connecticut, by


in the office of the Librarian of Congress at Washington.


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suBine THE UMB of thb wituim sbcibioits.

Hon. JOHN DUANE PARK, Chief Justice.





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The Statute Book referred to in this volume as the Revised
Statutes or General Statutes, is the Revision of 1875.

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^tna Axle & Spring Co., Hopson v 597

J£toa Nat. Bank v. Charter Oak Life Ins. Co. . . 167

Agricultural Ins. Co., Bennett V 420

Allen V. N. Haven & Northampton Co. * . . 215

AUen V. Bundle . . . ' 9, 588

Andreas v. Hubbard .851

Appeal from Probate (Hawes's) 317

Appeal from Probate (Peck's) '. 562

Appeal from Probate (WiUetts's) 330

Atwater, Bristol v 402

Bailey, Hornig v. .' 40

Barber, Continental Life Ins. Co. v. .... 567

Barnes v. Barnes 572

Batterson v. Town of Hartford 558

Beardsley v. City of Hartford ..... 529

Bennett v. Agricultural Insurance Co 420

Boston & N. York Air Line R. R. Co. v. Coffin . . 150

Bragg, Loomis v 228

Branford (Town of), Bryan V 246

Brinley v, Grou 66

Bristol V. Atwater 402

Bristol, Russell v 221

Brooks, Treadwell v 262

Brooks, WiUiams » . 278

Brown v. Congdon 802

Brown Stone Quarry Co., Town of Cromwell v. . . 470

Bryan v. Town of Branford 246

Cady V. Fitzsimmons 209

Campbell v. N. York & New England R. R. Co. . . 128

Charter Oak Life Ins. Co., JEtna Nat. Bank v. . . 167

Chatham (Town of) , Town of Marlborough v. . . 554

Clinton (Town of) v. Town of Haddam .... 84

Coffin, Boston & N. York Air Line R. R. Co ». . . 150


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CoQgdon, Brown v 302

CoDtinental Life Ins. Co. v. Barber .... 5d7

Copeland, Reed v. 472

Corcoran, Quintsurd v 34

County Commissioners, La Croix v. . . . . .321

Crane t;. Eastern Transportation Line .... 341

Cromwell (Town of) v. Conn. Brown Stone Quarry Co. . 470

Cummins, Pond v, 872

Cutting, Salisbury Sav. Society v 113

Daniels v. Equitable Fire Ins. Co. . . . . 551

Dean, Goodwin v • . . . 517

Eastern Transportation Line, Crane v 841

Elwell V. Mersick 272

Equitable Fire Ins. Co., Daniels 9 551

Fairfield v. Lawson 501

Fanton v. Middlebrook 44

Fitzsimmons, Cady v 209

Fowler v. Fowler . 258

Gaul, State v 578

Gladwin, Wilcox v 77

Goodman v, Meriden Britannia Co 139

Goodwin v. Dean 517

Gtou, Brinley v 66

Haddam (Town of), Town of Clinton v. . . . 84

Haightv.Hoyt 583

Hall {in re) • • 131

Hall r. Hall 104

Halliwell, Hills r 270

Hallock V. Smith . . . . \ . . . 127

Harral v. Leverty 46

Hartford (City of), Beardsleyv 529

Hartford (City of). State of Connecticut v. . . .89

Hartford (City of), Wrights 546

Hartford (Town of) , Batterson v 558

Hartwell v. Town of New Milford .... 522

Hawes's Appeal from Probate 317

Hills V. Halliwell 270

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Home Ins. Co., Meriden Ssr. Bai& v SM

Hopson V. JEtnsL Axle and Spriag Co &97

Hornig v. BaBey 48

Howe v. Town of Ridgefield 5M

Hoyt, Haight v. . . • • • • . . . 58S

Hubbard, Andreas v. . • . . • . • . 9M

Hubbard, Simmons v 574

Keeler, Taylor v. ........ 84$

Eloppenberg, Norwich Printing Co. v 29d

La Croix v. County Commissioners .... 9tl

Lawson, Fairfield v. 501

Leverty, Harral v. 46

Loomis V, Brag^ . . 228

Marlborough (Town of) v. Town of Chatham . 554

McVane v. Williams 548

Melony v. Somers 52#

Meriden Britannia Co., Groodman v. .... 139

Meriden Say. Bank v. Home Ins. Co 396

Mersick, Elwell v 272

Middlebrook, Fanton t;. 44

Moriarty, State v 415

Munson, Phipps v 267

New Haven & Northampton Co., Allen v. . . .215

New Haven Steamboat Co. v. Sargent .... 199

New MUford (Town of), Hartwell v 522

New York <& New England R. R. Co., Campbell v. . 128

New York, New Haven & Hartford R. R. Co., Peck v. . 379^

Norwich Printing Co. v. Eloppenberg .... 295

Peck's Appeal from Probate 562

Peck V. N. York, N. Haven & Hartford R. R. Co. . 379

Phipps V. Munson . 267

Pond V. Cummins 372

Qulntard v. Corcoran 34

Reed v. Copeland 472

Ridgefield (Town of), Howe V 592

Rnndle, Allen v 9, 588

Russell V. Biistol 221

Ryan, State t; 41T

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Saint Paul Ins. Co., Security Ins. Co. v

Salisbury Say. Society v. Cutting

Sargent, New Haven Steamboat Co. v,

Security Ins. Co. v. St. Paul Ins. Co.

Simmons v. Hubbard

Sisson V, Tubbs

Smith, Hallock v.

Smith V. The State .

Smith, Whittemore v.

Smith V. Yale .

Somers, Melony v.

State V. Gaul .

State V. Moriarty .

State V. Ryan .

State, Smith v.

State t;. Teahan

State of Conn. v. City of Hartford

State of Conn. v. Wright

Taylor v. Keeler ....
Teahan, State v. . . .
Tolland Co. Ins. Co. t;. Underwood
Treadwell v. Brooks

Tubbs, Sisson v

Tuttle V. Town of Winchester .

Underwood, Tolland Co. Ins. Co. v*

Welton V. Town of Wolcott •
Whittemore v. Smith
Wilcox V, Gladwin .
Willetts's Appeal from Probate
Williams v. Brooks .
Williams, McVane v, .
Willimantic Linen Co., Wilson v.
Wilson V. Willimantic Linen Co.
Winchester (Town of), Tuttle v.
Wolcott (Town of), Welton v.
Wright V. City of Hartford
Wright, State of Connecticut v.

Tale, Smith v. ...


. 118

.. 288

. 292

. 198

. 526

. 578

. 411


. 92


. 580


. 262

. 497




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Park, G. J., Cabpenteb, Pardee, Loomis and Gran-

GBB, Js.

Barnabas Allen and othebs vs. Samuel H. Rundlb
and others.

A goaranty that a note is collectible is a conditional one, the condition
being that diligence should be used in collecting it.

Some conrts of high authority in this country haye held that the only evi-
dence that the note is not collectible is the failure of legal proceedings,
diligently pursued, to result in collection. Other courts of equal
authority haye held differently. It seems more in accordance with the
general principles adopted by this court in cases of guaranty, and more
Just, not to require a suit, with all its attendant expense and trouble,
where it must be fruitless, and to allow under some circumstances the
diligence to be waived by the party for whose benefit it is required.

Bat where the exact diligence required is expressly stated in the contract,
the want of it will not be excused.

In a suit upon a guaranty of the collectibility of a note the burden of proof
is on the plaintiff to show, either that he has exhausted all legal reme-
dies, or that the maker was insolyent, or that the guarantor had waived
the legal proceedings.

B executed to the plaintiffs his note on demand, on the back of w^ich the
defendants signed the following guaranty:— ''For value received, we

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Allen V. Bundle.

jointly and severally guarantee the within note good and collectible
until paid." In a suit brought on the guaranty several years later, and
without haying brought suit against the maker, whom the plaintiffs
claimed to have been insolvent, the plaintiffs offered evidence that it
was understood between the maker, the guarantors and themselves at
the time the note was made, that the maker had signed It without con-
sideration, at the request and for the accommodation of the guarantors,
and upon their promise that they would take care of it and pay it within
a short time. Held that this evidence was inadmissible as going to
establish at the very making of the note an oral agreement in direct
conflict with the written guaranty.

And held that it was not admissible for the purpose of establishing a waiver
by the guarantors of the institution of proceedings against the maker
for the collection of the note, as it would produce the same effect with
a material change of the written contract

Nor admissible to estop the guarantors. Promissory representations as to
future action dependent upon a contract to be entered into, do not create
an estoppel.

Under our statute with regard to fraudulent conveyances ((Jen. Statutes,
p. 845,) it is not necessary to prove a specific design to defraud the
particular creditor who assails the conveyance; the intent to defraud
one creditor renders the conveyance void as to all.

The language of the statute differs somewhat from that of 13 Eliz., c 5,
but it is essentially copied from it and must receive a similar construction.

Where there are no facts in evidence on which a request for a charge is
based, the judge is not bound to give any instruction to the jury upon it.

The omission to charge in writing upon written requests, as required by
statute (Gen. Statutes, p. 442, sec 2,) would be ground for granting a
new trial, unless waived by the party making the request or occasioning
no injury.

Assumpsit on a guaranty ; brought to the Superior Court,
and tried to the jury before Hitchcock^ J.

Upon the trial the plaintifiEB offered in evidence the
following note and guaranty, the execution of which was

" 7,000. Danbury, Nov. 25th, 1871.

" On demand, I promise to pay to Barnabas Allen and
William F. Taylor, seven thousand dollars, with interest
semi-annually, and the taxes tha,t may accrue on the same,
for value received. Charles Benedict."

The guaranty was written on the back of the note and
was signed by all the defendants.

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MARCH TERM, 1882. 11

All6n V, Bundle.

" For value received we jointly and severally guarantee
the within note good and collectible until paid.

s. h. rundlb.
Wm. p. Seely.
Andrew Hull.
Isaac W. Ives.
Charles Httll.
George C. White.
W. F. Lacey."

The defendants claimed in defence that the plaintiffs had
not used due diligence to collect the note of Benedict, the
maker, and that therefore no suit could be maintained by
them against the defendants as guarantors. In answer to
this claim the plaintiffs claimed that their failure to com-
mence suit against the maker was legally excused : — ^first,
because at the commencement of the present suit the maker
of the note was utterly insolvent, and second, because it
was understood between the maker, guarantors and payees
of the note at the time of its execution and delivery, that
the maker had signed it without consideration, at the
request of and for the accommodation of the guarantors,
and upon their promise that they would take care of it and
pay it within a short time from its date.

Under the second claim the plaintiffs offered evidence in
chief, to prove that in the year 1871 the Bartram & Fanton
Sewing Machine Company was indebted to them in the
sum of $7,000, and was being pressed for payment ; that
William P. Seeley, one of the defendants, and who was
acting and managing for said company, of which he was a
stockholder, in paying off its debts, proposed to the plain-
tiffe, that as the company would want to use what ready
money it had, it would get up a note and get some one to
sign it, whom the stockholders, or some of them, would
indemnify, and would sign as guarantors on the back of the
note, and that they thought they could get Charles Benedict
to let them use his name. That thereafter Charles Hull,
one of the defendants, and also a stockholder in the com-

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Allen 0. Randle.

panj, went to Benedict for the purpose of inducing him to
lend his name as maker of the proposed note, and for that
purpose promised him that he should never be called upon
to pay it and that no harm should ever come to him from
signing it, but that the guarantors would pay it. That
afterwards Hull and Seeley gave the note in question to the
plaintifEs in accordance with their proposition, and they and
the other guarantors, all of whom were stockholders in the
company, told the plaintiffs that they had got from Bene-
dict his name, and had agreed to protect him and to pay
the note, and that no harm should come to him from sign-
ing it ; and that the plaintiffs accepted the note in payment
of their debt against the company. That afterwards
Benedict also informed the plaintiffs that the defendants
had promised to protect him, and that it was agreed when
he signed it that he was not to pay it, and should have no
trouble with it ; but that the parties who signed on the back
of it should take care of it. Also that the defendants
repeatedly after the execution of the note, and before the
commencement of this suit, upon being pressed for pay-
ment, agreed to pay the same, and acknowledged the
promise made to Benedict, that he should not be called
upon to pay it, and themselves paid the plaintiffs six
months' interest on the note, which was all the interest that
had been paid thereon.

To the testimony of the promise made by Hull to Bene-
dict at the time of the execution of the no.te, the defen-
dants objected, on the ground that it could not be admitted
to vary or contradict the written terms of the note and
guaranty, and that it was a conversation inter alios. And a
like objection was specifically made to all the rest of the
testimony. The plaintiffij claimed the admission of the
testimony solely as bearing upon the question of their
claimed failure to use due diligence in endeavoring to
collect the note from the maker, before having recourse to
the defendants, and the court admitted it for that purpose
only, and ruled that it was inadmissible for the purpose of
varying or contradicting the note and guaranty.

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MARCH TERM, 1882. 18

Allen V. Bundle.

Under the plaintiffs' first claim, they offered evidence to
prove, and claimed to have proved, that at the maturity of
the note and ever since, Benedict, the maker, was and had
been utterly insolvent and without property from which it
could be collected. This the defendants denied, and offered
evidence to prove that, at the time he signed the note, he
was of abundant pecuniary ability to pay it ; that from that
time continuously until April 28th, 1878, more than jf30,000
woith of property in Danbury stood in his name and be-
longed to him; that on that day he transferred all his
property to his wife, who still held possession of more than
$25,000 worth of the same ; that the only consideration for
the transfer was the purchase by Mrs. Benedict, in 1868, of
certain debts, amounting to $23,000, in favor of certain
creditors against her husband, for fifteen per cent, of their
^ace value, and a debt of $4,500, due from Benedict to
Mrs. Benedict's father, and which had been set out to Mrs.
Benedict upon the distribution of her father's estate ; that
Mr. and Mrs. Benedict were married in 1828, and that the
money with which she purchased the debts was the proceeds
of property given to her by her husband at a time when he
was not indebted ; that the transfer was made because one
Burr had three days previously brought a suit against
Benedict for the claimed illegal use of a patent right, and
that the plaintiff Taylor drew, witnessed and took the
acknowledgment of the transfer.

It was conceded that the plaintiffis had been the holders
of the note from the time it was made, and that Taylor had
advised Benedict not to pay it as it would be unfair and

On the contrary the plaintiffs offered evidence to prove,
and claimed they had proved, that in 1863 Benedict owed
to different parties notes amounting then to $23,000, which
he was pressed to pay, but was then unable to pay ; that
his wife, with her own sole and separate funds, purchased
the notes, which were thereupon legally assigned to her
individually, and all of which Mr. Benedict then and often
thereafter repeatedly promised her to pay to her in full with

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Allen V. Bundle.

interest thereon, but never had paid ; that the conveyance
of April 28th, 1873, was made in good faith for the purpose
of paying this indebtedness to his wife, without intent to
avoid any debt or duty, but was made at that particular
time because one Burr had a few days before brought to
the District Court of the United States a petition for an
injunction against Benedict's using a certain patent right,
claimed by Burr to belong to him, with a prayer for an
accountiDg and a claim for damages for an infringement of
the patent right. That Benedict had always denied the
patent right to be valid, and that he had ever infringed the
same, and had from the first defended and was still defend-
ing against the suit, but that it had never been brought to
or pressed for trial, and had for years lain dormant on the
docket of the court. That at the time of his deed to his
wife, he both claimed and believed, and ever since had^
claimed and believed, and contended, that he never was
liable to said Burr, or indebted to any one except his wife.
That Taylor acted simply as the scrivener in drawing the
deed, and neither advised the giving of it, nor was con-
sulted in respect to the Burr suit, but only as to the proper
form of the transfer ; and that the real estate conveyed by
the deed did not exceed in value the amount due upon the
claims so purchased by and transferred to the wife.

The defendants also claimed that Benedict was indemni-
fied by a bond, for any loss that might fall upon him if he
paid the note in suit ; that all the defendants and fourteen
other persons were obligors upon the bond, and that all
promises and statements made by them or either of them
concerning the payment of the note, were made by them as
obligors upon the bond, and were so understood by all the
parties. The plaintiffs denied that the bond was given to
indemnify Benedict for loss upon the note, or was any pro-
tection to him if he paid it, or that the promises made by
the defendants were based upon their relation as signers
of the bond.

Upon the evidence in the case the defendants claimed
and asked the court to charge the jury, that if they found

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MARCH TERM, 1882. 16

Allen V, Rundle.

the facts concerning the transfer from Benedict to his wife,
in April, 1873, as claimed by them, such transfer was void
as to the plaintiffs, and that the plaintiffs could still collect
the note in suit out of said property, and that it was their
duty so to do ; and that if this was not so, the plaintifis
had by their own fraudulent co-operation with Benedict in
the transfer, rendered him insolvent, and therefore could
not recover of the defendants.

The court refused so to charge, but instructed the jury as
follows :

" It is a question of fact for you to decide, whether or
not Benedict was insolvent when this suit was brought.
The defendants claim he was not insolvent, because the
transfer of April 28th, 1873, was fraudulent and yoid. If
you find the transfer was made to defraud Burr, it would
be void as to that claim, but our statute prevents it from
being void as to any one except him whose debt was sought
to be avoided. It is claimed that the transfer is void for
inadequacy of price, as to creditors. I do not understand
that any creditors are here asking to be heard. I think that
the transfer should be treated, so far as this suit goes, as a
valid transfer.

'' But the plaintiffs claim that, whether or not the trans-
fer was void, there has been a waiver of diligence by the
defendants. I am inclined to think that if we consider
merely the contract on the note and back, it was the duty
of the plaintiffe to sue Benedict, if he had property. But
the plaintiffs claim that this defence of failiire to sue Bene-
dict has all been waived ; that the defendants had no right
to expect the plaintiffs to look to Benedict; that at the
inception of the note promises were made to Benedict, and
to the plaintiff when they took the note, that Benedict
need not pay it. If you believe such promises were made,
it does not make the defendants liable as principals, but
they waive thereby their right to require of the plaintiffs
that they should sue Benedict, because the plaintiffs had a
right to rely upon these promises, even if they knew Bene-
dict had property. If these promises were made, then the

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Alien V. Bundle.

plaintiffs were not bound to sue Benedict; if not made,
then the defendants could require the plaintiffs to bring a
suit against Benedict, if he had property, or if his property
was conveyed away by the fault of the defendants."

Before the opening of tlie argument the defendants filed
with the clerk and presented to the judge the following
(among other) written requests to charge : —

4. " If the jury find that the conveyance of April 28th,
1873, from Benedict to his wife, was made with intent to

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 1 of 61)