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said Boston, to recover for his said services, and thereafter
such proceedings were had as that in the United States
Circuit Court for the First Circuit, held in Boston, in Jan-
uary, 1880, said Woodward recovered judgment against this
plaintiff for the value of his services so rendered as afore-
said, to the amount of $6,000 and interest thereon, the
whole of said judgment being about the sum of $5,444.08.
Each of said defendants knew of the existence of said suit,
and during its progress claimed that said bill was unreason-
able in amount.

9. On an execution issued on said judgment, this plain-
tiff, on March 26, 1881, paid the whole amount thereof,
whicli with interest was the sum last above stated, and this
plaintiff was further subjected to the payment of the addi-
tional sum of $943, being for expenses and legal services
ineident to the trial of said cause.

10. Since the signing of said agreement, and before
Blarch 26th, 1881, the said German Insurance Company, the

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Security Ins. Co. o. St Paul Ins. Co.

said Hibernian Mutual Fire Insurance Company, and the
said Globe Insurance Company, representing in all $10,000
of the insurance on said property, had utterly failed and
there were in existence no assets of said companies or of
either of them ; and the said Oswego & Onondaga Insurance
Company had been dissolved under the laws of the state of
New York and could not be sued in law or equity in that
state and is not within the jurisdiction of this court.

11. On or about May 28d, 1881, the plaintiff made
demand upon all the remaining signers to said agreement,
including the defendant, that they should contribute accord-
ing to the amount of their several policies to reimburse the
plaintiff what would be legally and equitably due on the
facts aforesaid.

12. Some companies, other than the defendant and other
than said insolvent companies, have responded to the
demand of the plaintiff, so that there remains unpaid of the
sum of 15,444.08, the principal sum of $2,252.52, and of
the sum of $943, the principal sum of $400, but the defen-
dant has refused to pay to the plaintiff any sum whatever.

13. All the other signers to said agreement, except the
defendant, are without the jurisdiction of this court.

The plaintiff claims equitable relief, and that there be an
accounting between the plaintiff and the defendant, and
that of the sums paid by the plaintiff as aforesaid, and
remaining unpaid, the defendant be decreed and ordered to
pay the plaintiff one-half thereof, to wit: the sum of
$1,750 ; and for such other relief as shall be equitable in the

To this complaint the defendant filed the following
demurrer: —

The defendant demurs to the plaintiff's complaint Bsxd
the matters therein contained :

1. Because it appears from the complaint that the plain-
tiff was not legally or equitably bound to pay said Wood-
ward any sum of money whatever, upon the account of or
for the benefit of the defendant ; and that it further appears
from said complaint that if the plaintiff paid any money to.

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JUNE TERM, 1882. 289

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

said Woodward or upon said judgment on account of or
for the benefit of the defendant, it was paid by the plaintiflf
voluntarily, and without the request, knowledge or consent
of the defendant.

2. That it appears from the complaint that the defen-
dant was liable to pay said Woodward, either at law or in
equity, the sum of about three hundred dollars and no
more ; and that, if the plaintiff paid said Woodward said
debt or said judgment, and had any claim either at law or
in equity against the defendant and other parties mentioned
in the complaint for contribution, it appears by the com-
plaint that all except the defendant have repaid the same
to the plaintiff.

8. That it appears from the complaint that the defen-
dant's liability upon said contract, either at law or in equity,
is an individual and separate liability for the defendant's
pro rata part of the debt described in said complaint, and
that the defendant is not liable to contribute for the insol-
vent companies' liability mentioned in said complaint, and
that the defendant is not a surety and did not become liable
for any of the other companies' liability mentioned in said

4. That it appears from said complaint that said contract
was executed beyond the jurisdiction of this court with
companies that were not then and never have been within
the jurisdiction of this court, and that the facts alleged in
paragraph thirteen of the plaintiff's complaint give the
plaintiff no right to contribution against the defendant*

5. That upon the facts alleged in the complaint the
defendant is not liable to pay any part of the costs of the
plaintiff's defence against the suit of said Woodward.

6. That it appeai-s from the complaint that the plaintiff
was not liable to said Woodward upon said contract for
more than its pro rata part, to wit, the sum of $300, and
that the plaintiff without objection suffered judgment
against itself for the defendant's liability to Woodward, and
that the defendant was not a party to said action, and did
QOt consent to it and is not liable to pay or contribute any
part of said judgment.

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

The case was reserved upon the demurrer for the advice
of this court.

W. Stoddard^ in support of the demurrer.

1. There was no legal or equitable liability to Wood-
ward on the part of the Security Insurance Company under
the agreement for more than its pro rata part of the whole
sum found due him. As it contested the claim solely upon
the ground that the charges were excessive, and did not
raise the point that it was not liable for the whole amount^
the payment by it of any part of the $5,000, if owing and
due from the defendant and the other companies, was a
voluntary payment, and the plaintiff cannot recover from
the defendant any part of the sum paid. Phillips on Insure
ance, § 2,000 ; LttcoM v. Jefferson Ins. Co.^ 6 Cowen, 6S5.

2. The contract entered into by the defendant, the
plaintiff^ and the other insurance companies, fully settles
what amount of this sum of $5,000 each company shall pay.
Applying the words of the contract to the $6,000 due
Woodward, it reads : ** And will, when and as required by
the committee hereinafter mentioned, contribute to and pay
said Woodward $5,000, pro rata ; that is to say, each com-
pany shall pay such proportion (of said $5,000) as the
amount insured by said company (the St. Paul Fire &
Marine Insulrance Co.) shall bear to the whole amount
insured on said property by all the companies subscribing
to this agreement." In other words, the St. Paul Fire &
Marine Ins. Co. will pay to Woodward ^^<s% (or jY) of
$5,000, which amounts to $294.10.

8. Having entered into this contract specifying the
amount that each company shall pay, and that they are
not ea^h liable for the whole amount, they are bound by it,
and the plaintiff is not entitled to contribution from the
defendant, for either the insolvexit companies or those
beyond the jurisdiction of the court. North v. Brace^ 80
ConlA., 60 ; Bering v. Earl of Winehelsea^ 2 Bos. & Pul.,
270 ; 1 Leading Cases in Equity, (H. & W. notes,) 96, and
cases there cited ; Armitoffe v. Ftdver^ 87 N. York, 494 1
Brandt on Suretyship & Guaranty, § 252.

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JUNE TERM, 1882. 241

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

4. Before the plaintiff can claim contribution in this
case, it must show that the defendant was either jointly or
severally bound and hold en for the same obligation that the
plaintiff was. Under this contract there is no such obliga-
tion. The plaintiff was holden and bound to pay a certain
distinct sum, (a definite part of the $5,000,) and no one
else was either jointly or severally liable for the same
sum ; and so the defendant, and each of the other companies
signing the agreement, assumed alone and individually a
certain distinct sum, and no one company was liable, either
jointly or severally, for any of the others.

5. The fact that the other companies are without the
jurisdiction of the couii;, does not entitle the plaintiff to
recover from the defendant. Those parties were never
within the jurisdiction of the court. The principle upon
which contribution exists by one surety against a co-surety,
where one of the sureties has become insolvent or has left
the state, is, that it was the understanding that all parties
should equally bear the burden, and each guarantees that
the other shall perform his contract. And where in such a
case one co-surety moves from the state, so that he cannot
be reached, it is a breach of the contract as it was under-
stood between the sureties, and if a loss occurs, equity says
that it shall be borne equally by the remaining parties.
Boardman^Y. Paige^ 11 N. Hamp., 481. In this case there
was no agreement, either expressed or implied, that any of
the companies should ever be within the jurisdiction of the
court, and consequently there was no breach of the contract
which we guaranteed, and therefore we are not liable on
that ground.

6. We are not liable for the costs of the plaintiff in
defending the Woodward suit. We were not parties to that
suit. We did not authorize any defence, and the defence
was not for our benefit. Boardman v. Paige^ 11 N. Hamp.,
431 ; John v. Jb»e«, 16 Ala., 454 ; Brandt on Suretyship &
Guaranty, § 247.

7. The most that under any circumstances can be
recovered against us in this case is $294.10, a sum in con-

YoJj. L.— 16

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Security Ins. Co. v. 8t. Panl Ins. Co.

troversy which is below the jurisdiction of the Superior
Court. When it appears from the declaration that the tfnm
to be recovered must be below the jurisdiction of the court,
ihe court will dismiss the complaint. Chrether v. Kloek, 89
Conn., 135 ; SutU v. EoekweU, 41 id., 61.

J. W. Ailing^ contra. .

1. The right of contribution applies to all cases where
two or more persons are liable by contract in the same way
to a third person, and such third person compels one to pay
the entire obligation. 1 Story Kq. Jur., § 504; 1 Parsons
on Cont. (6tb ed.,) 31, and note d; Brandt on Suretyship,

2. The yarious insurance companies were of course co-
contractors. Was Woodward's claim against them all?
He could enforce his whole claim against all jointly, or any
one of them which should not plead in abatement the non-
joinder of the others. He was not bound to sue each for
a fractional part of his claim. The whole nature of the
case and the structure of the contract show that when
attorneys or other persons were employed, it was by the
eommittee as agents of all the companies and for the
benefit of all. The provision that each company should
pay in proportion to the amount of its insurance, was simply
a rule of apportionment among themselves, and could not
affect a third party having a claim for services. Kincaid t.
Mocker^ 7 J. J. Marsh., 333. It was like the case of a part*
nership where the apportionment between the partners may
be unequal, but where all are liable for a debt owed by it.

3." The plaintiff had a right to look to the solvent
companies for the entire contribution. The party paying
an entire debt which others are bound to share with him,
has a right, in seeking contribution from the rest, to lo<^ to
the solvent co-contractors, without reference to those who
have become insolvent, ffyde v. Tracy ^ 2 Day, 491 ; Cory
V. Holmes^ M Gray, 127; Van Petten v. Richard$ony 68
Misio., 879. The case of NoHh v. Brace, 30 Conn., 60, cited
on the other ?aide, rests upon an essentially different state of

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JUNE TERM, 1882- 348

Secvrity Int. Ck>. v, St. Paul Inf. Oo.

faets. But even in that case the conrt say (p 72 :) ^ As «
general doctrine of equity it is true that where there is an
entire debt or duty owed equally by several, the solvent
debtors must share equally in any burden thrown upoii
them by the insolvency of a part of their number." It is a
fair and indeed an irresistible inference, that as the companies
united in defence of the test suit on the supposition that all
were able to pay, now that some are unable to pay their
share should be distributed among the solvent parties
according to their interests.

4. The companies that are without the jurisdiction of
the court are to be regarded in the same way as the insol-
vent companies and are to be excluded in making a basis
for contribution. Cary v. ffolmes^ 16 Gray, 127 ; Whitman
V. Porter, 107 Mass^ 622 ; McKenfia v. George, 2 Rich. Eq^
15. Both the plaintiff and the defendant must seek in
other jurisdictiona the application of the law of equitable
apportionment, until all the solvent companies settle equally
according to their respective interests.

6. Whether the costs and expenses growing out of the
plaintiff's defence against Woodward's suit can become a
subject for contribujdon, must depend upon whether it was
reasonable in the circumstances that that defence should
have been made. It is admitted, that the defendaut claimed
that Woodward's bill was unreasonable in amount, both
before his suit and during its progress, and that the defen-
dant knew of that suit. It would therefore have been veiy
imprudent for the plaintiff to pay that bill before it had
been established by a competent tribunal, and the reason*
able expense of getting the claim adjusted ought to be one
of the items of the account in contribution. 1 Parsons on
Ck)nt., (6th ed.,) 88, and notes; Marsh v. Harrinfftcm, 18
Verm., 150; Fletcher v. Jackson, 28 id., 598. **If the oom*
piainant, knowing that the demands were just, and that bia
ocHSureties and himself were bound to pay them, bad volum
tarily incurred expenses in unnecessarily defending the
suits, he would have been without remedy for costs; biU
it€mk their oature it cannot be supposed that he was full/

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

aware of the bond fides and amounts of these demands^ and
he owed it to hxTnself and to his co-sureties to see that they
were established according to the principles of law ; and that
he could not do withont incurring the expense of employ-
ing counsel." McKenna v. George^ 2 Rich. Eq., 18.

Pardee, J. (After stating the facts.) By the terms of
the agreement the signers jointly subjected themselves to
liability to all persons rendering service at the request of
their agent, the committee. And this upon the equitable
principle that when several persons desire to bring about the
same result, one which will be of pecuniary advantage to
each, and agree to unite and make common cause each with
all others in the undertaking, and join in the appointment
of the same agent for the accomplishment of their purpose,
as between themselves each is bound to contribute his pro-
portion to the consequent expense ; that proportion to be
determined by the number uniting, or by a rule established
by themselves, or by such equities as may arise from the
circumstances attending the transaction. And, if one of
them pays, either upon the judgment of a court or volunta-
rily, a claim justly due from all, each of the others is under
obligation so to contribute to his repayment as that the final
result shall be that each solvent person has paid his propor-
tion; the person voluntarily paying the whole assuming
the risk of the invalidity of the claim, but not the risk of
the insolvency of a joint contractor. The provision in the
contract as to payment pro rata^ is to be read as if it ex-
pressed that the division is to be among solvent signers
only ; and it is applicable to them only ; it has no effect
upon those serving them ; it determines that the expense is
not to be divided per capita but in proportion to the amount
insured by each, to the benefit to be derived by each from a
successful resistance to the demands of the insured. There-
fore it was in the power of Woodward to make all of them
defendants in one suit for his entire claim ; he was under no
obligation to enforce it in fractions against each separately ;
nor did he take the risk of loss resulting from the insolvenoj

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JUNE TERM, 1882. 245

Security Ins. Co. o. St Paul Ins. Co.

of any. And choosing to sue this plaintiff alone, in the
absence of a plea in abatement for non-joinder of the others
he might legally have judgment for the whole. And the
plaintiff was under no obligation to the others to plead in
abatement in the absence of any request, they having
knowledge of the suit and an opportunity to join in the
effort to defeat it.

Whether the plaintiff gave such notice of the suit to the
defendant that the judgment concludes the latter as to the
amount due, is of no consequence, since the petition alleges,
and the demurrer of course admits, that the bill of Wood-
ward ** was approved by the committee and was reasonable."
The plaintiff could therefore have safely paid it without
waiting to be sued.

This being so, the question arises how the plaintiff can
justly call on the defendant to contribute to the expense of
defending against that suit. The expense of that defence
was about $900. Why should the plaintiff have incurred
this expense in resisting a reasonable claim, and after mak-
ing an ineffectual resistance why should the plaintiff look
to the defendant for its share of that expense ? This claim
is a plausible one, but the peculiar facts of the case show
the groundlessness of it. The plaintiff presumably could
not have known that the claim was a reasonable one until
it had been investigated in court and so found. But aside
from this, it is alleged and by the demurrer admitted, that
** the defendant [in this suit] claimed that the bill of Wood-
ward was unreasonable in amount.'* This being so, it was
both reasonable in itself, and due to the defendant, that the
bill should not be paid without a judicial investigation, and
of course the expense of that investigation should be shared
by all the parties interested, especially in view of the origi-
nal agreement of the several insurance companies to make
common cause in the whole matter.

It is of course to be understood that the judgment
obtained against the plaintiff by Woodward does not
become judicially conclusive upon the present defendant
by reason of the propriety of the making of the defence by

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Bryan ». Town of Branford.

ihe plaintiff, but the facts have their operation merely in
making it reasonable that the expense of that defence
should be shared by the parties interested.

Each signer was responsible to Woodward for his entire
claim ; each was alike exposed to a judgment in his favor
t0t the whole ; therefore the duty of payment was upon all
alike. It fell to the lot of the plaintiff to be made sole
defendant in a suit by Woodward for the whole, and to be
compelled to pay it ; it is not inequitable for it to put upon
any one of its co-signers one half of the burden which it
has been compelled to assume. And if it is driven to the
necessity of asking a court of equity to compel contribution
and can find but one solvent co-signer within the jurisdic-
tion of that court, it is entitled to a decree for contribution
to the extent of one half of the amount paid by it. The
plaintiff and defendant can each thereafter enforce contri-
bution against co-signers in other jurisdictions, or submit
to an equal loss as they may prefer. So far as this jurisdic-
tion is concerned, a burden which two are to bear, will press
with equal weight on both.

The Superior Court is advised that the complaint is

In this opinion the other judges concurred.

William Bryan, Jr., and others vs. The Town of


An engineer who has had experience in making plans and estimates for
the building of bridges and has superintended their construction, can
properly testify as an expert with regard to the probable cost of a bridge,
although he has had no experience as a practical bridge builder.

And it does not affect the case that he has obtained the prices of the
materials for the bridge from persons who deal in such articles.

Under the statute authorizing the laying out of highways, a highway with
a draw-bridge can be laid out over a navigable river.

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JUNE TERM, 1882- 247

Bryan «• Town of Branf ord.

The statute (Gen. Statutes, p. 239, sec 47,) which allows a committee to
receive and regard as evidence on the question of the cost of a new
bighway. a bond for the construction of the highway for a stated price,
appliea to a highway so laid out.

Tbe act of 1875 (Session Laws of 187&» p. fi7J which provides that such a
bond shall stipulate that the worlc shall be done to the acceptance of the
county comn^ssioners, does not repeal, but is to be taken in connection
with, the former act (Gen. Statutes, p. 280, sec. 47,) which provides fkaft
•neh a bond shall be conditioned for the doing of the work ** in a speci-
fied time and manner."

It is no objection to the laying out of a highway on the ground of public
convenience and necessity, that a considerable part of the public trterei
will be for the purpoee of recreation and pleasure. The accommodattoa
of that class of travellers is to be considered with l^at of the rest of the

Travel which is limited to the summer months is entitled to less weight in
determining whether there Is a public necessity, than that which it cott-

Where evidence that should properly have been received in chief has been
admitted at a later stage of the trial, the matter is whoUy one of discre-
tion, and is not a ground of error.

CrviL SUIT for the laying out of a highway ; brought to
the Superior Court. Report of a committee in favor <^
laying out the highway, remonstrance by the defendants
against the acceptance of the report, remonstrance over-
raled and decree laying out the highway, (^Bedrd»ley^ «r.,)
and motion in error by the defendants. The case is suffi-
oiently stated in tiie opinion.

J. W. AIMng and W. A, Wright^ for the plain tifEs in error,
X. HartUon^ for the defendants in error.

LooMis, J. The questions for review in this case are
based upon certain decisions of the Superior Court over-
ruling the defendants' remonstrance to the report of a com-
mittee laying out a highway in the town of Bran ford.

1. The highway was laid across Branford river, which
required the building of a bridge with a draw for the accom-
modation of vessels, and the cost of the bridge became an
important question before the committee. Upon this subject
the plaintiffs offered the testimony of A. B. Hill and Charles

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Bryan o. Town of Branford.

H. Fowler as experts. To show their qualifications as such
the plaintiflfs proved that they were civil engineers by
education and profession ; that Hill for some time had been
assistant and Fowler chief engineer in the engineer's depart-
ment of the city of New Haven; that it was part of their
duty to make plans of and estimates for the cost of bridges
in the city of New Haven ; that they had had considerable
experience for a number of years in making plans and speci-
fications for bridges in that city and its vicinity, and in making
estimates of their cost, and also in personally superintend-
ing, in behalf of the party for whom they had made plans
and estimates, as engineers, the building of such bridges by
the various contractors who had undertaken to construct
them ; that the market price of materials was gained from
those who dealt in them — ^the price of iron from iron manu-
facturers and of lumber from lumber dealers — ^but that they
had personal knowledge of the market price of labor
required to construct bridges; and that they had made
plans for the construction of the bridge proposed and speci-
fications in detail, the «ame as described in the bond offered
in evidence, together with estimates of the cost.

The defendants contended that these facts did not show
the necessary qualifications to enable the witnesses to testify
as experts in regard to the cost of the proposed bridge. It
was conceded that they had sufficient education and knowl-
edge and were entirely competent to make plans and speci-
fications, but it was contended that the fatal defect in their

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 22 of 61)