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until the defendant, having been appointed trustee, under a
voluntary assignment in insolvency made by McKean, who
was in fact largely insolvent, took possession on the 10th
day of September, 1886. The real value of the confec-
tionery goods was about $2,000.

During the trial of the case in chief the plaintiff offered
to prove the conversation between himself and McKean
prior to the execution of the bill of sale, for the purpose of
showing that the sale was not absolute, but that it was
agreed between the plaintiff and McKean before the execu-
tion of the bill of sale, that the title to the property should
remain in the plaintiff until the payment of the notes of
$900 and $600. The evidence was objected to, but by con-
sent received subject to objection ; it was not excluded, but
was heard and considered by the court ; and it was found
that there was no such agreement, but that the sale was in
fact absolute.

The plaintiff, during the presentation of his case in chief,
to prove such agreement, further offered to prove the deo-



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JANUARY, 1890 869



Ryder r. Cooley.



larations of McKean to one McDonald, made after the sale,
but before the attachment, and in the absence of the defend-
ant. This was excluded, and the plaintiff excepted.

The defendant recovered judgment, and the plaintiff, hav-
ing appealed, assigns as a reason the exclusion of said
evidence, and also makes a further assignment, entirely un-
necessary to consider, since it consists of allegations of
facts in direct conflict with the express finding of the
court, and is therefore groundless. The sole question pre-
sented by the record is — was there error in the exclusion of
such evidence; for although the plaintiff, in disposing of
property worth $2,000 at the agreed price of $10,000, may,
as demonstrated by the result, have made a hard bargain
for himself, his misfortune in this regard is one which we
are not enabled to remedy.

We do not find it necessary to decide whether, if the evi-
dence which was offered and received subject to objection
was admissible, the proof of declarations, offered and re-
jected, was also admissible, since we are clearly of the opin-
ion that the evidence which was received should not have
been considered, and that, had the result been different, its
final reception would have afforded the defendant a valid
reason of appeal. Nor do we base this opinion upon any
such view of the bill of sale as that it constitutes the con-
tract, or is, as between the parties, of such conclusive
character as to preclude the admission of parol evidence
of the prior agreement in pursuance of which it was ex-
ecuted, whenever such evidence is not for other reasons
inadmissible. The law of this state upon the subject of
conditional sales has often been distinctly and fully enun-
ciated. It cannot be misapprehended and it can gain noth-
ing in clearness from any additional statement, illustration
or discussion here. It is sufficient to say that we are
content with that law, and have no intention by this deci-
sion to vary or modify it. Yet in entire consistency there-
with it is our duty to hold that, under such circumstances
as this case discloses, where a man has sold the whole trade,
interest and stock of a retail store, put the purchaser in
Vol. LVin.— 24



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370 FEBRUARY, 1890.

Stebbins r. Waterbouse.

complete and absolute possession of it as an uninterrupted
and continuing business, so that it would be impossible that
the parties could now be restored to their former condition,
giving to the buyer as his credential and evidence of title a
sealed and absolute written conveyance ; when, as was said
by this court in Forbes v. Mar%h^ 16 Conn., 384, " the ven-
dor permitted the vendee to hold himself out as owner of
the property," and " himself held the vendee out as such
owner ; " where he has received and ret^iined the considera-
tion ; as against a bond fide purchaser, attaching creditor or
trustee in insolvency representing creditors of the purchaser,
every principle of justice, public policy, honesty and com-
mon sense, should bar and preclude the claim that, after
all, the conveyance was conditional and not absolute, and
especially, as in this case, that it was conditioned upon the
ultimate payment at maturity of time notes, for an inconsid-
erable portion of the consideration. The very nature of
the entire transaction is inconsistent with and conclusively
contradicts such a claim.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.



I»8 970\

I S 5^1 Lucius Stebbins vb. Seymour S. Waterhouse.

Hartford Dist., Jan. T., 1890. Andbews, C. J., Carpentrb, Loomis,
ToKBANCE and Thateu, Js.

The act of 1889 (Session Laws, eh. 249,) which created the oflflce of state
referee, provides that it shall be the duty of the referee to hear and
report to the Superior Court the facts in such cases, pending in that
court, as shall be referred to him, but does not provide for any action
upon the report by the court. Held that, as the duties to be performed
by the referee are similar to those performed by auditors and commit-
tees, it must be taken to be the intention of the legislature that the
court should proceed with a report from him in the same way that it
would do With a report from an auditor or committee.



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FEBRUARY, 1890. 871

Stebbins o. Waterbouse.

Whether the state referee has power under the statute to find the issue
upon the facts found by him : Qucere.

Where he did so, and the court, assuming that he had not power to do it,
itself found the issue upon the facts reported, it was held that the enor,
if there was one, had become harmless.

The defendant by a written contract agreed to labor for the plaintiff upon
an orange grove in Florida for one year, and to use his best judgment
and all reasonable energy in carrying out his instructions and in pro-
moting his interests; the plaintiff to pay him $600 a year in quarterly
payments and to supply him with a house, fuel and necessary table
provisions. Held that by the contract the defendant was required to
devote his entire time to the service of the plaintiff.

The defendant during the term of his service under the contract used a team
of the plaintiff in his own business. Held that, if he had not intended
to pay for such use, as he received a benefit from it a promise to pay
for it would be implied.

[Argued January 15th— decided February 17th, 1890.]

Action to recover damages for neglect to perform a con-
tract for personal services, with a count for an indebtedness
for the use of the plaintiffs property; brought to the Supe-
rior Court in Hartford County. The case was referred to
tlie state referee, who reported the facts to the court, and
found the issue for the plaintiff upon the second count. The
defendant remonstrated against the acceptance of the re-
port. The court (JfVnw, tT".,) overruled the remonstrance and
accepted the report, and upon the facts found rendered judg-
ment for the plaintiff. The following minute of the judg-
ment was made by the court : —

"In the opinion of the court the state referee exceeded his
authority in finding the issue for the plaintiff upon the facts
found relative to the mule and buckboard, and for the plaint-
iff to recover of the defendant, the same being, in the opinion
of the court, a matter of law. But as in the opinion of the
court the facts found and reported entitle the plaintiff, as a
matter of law, to recover, such portion of the report does
not harm the defendant, and may be treated as surplusage.
Therefore the remonstrance is overruled and the report ac-
cepted ; and, the parties agreeing that without further hear-
ing such judgment shall be rendered on the repoi-t as may
seem to the court demanded in the premises, reserving the
right to'appeal as in other cases, and claiming that the court



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872 FEBRUARY, 1890.

Stebbins v. Waterhouse.

is not authorized to take any action whatever on the report,
the facts reported by the referee are found true, and there-
upon the issue is found for the plaintiff, to recover of the
defendant for the use of said raule and buckboard the sum of
$90, and for services not performed, as described in the re-
port, $720, making the sum of $810, with interest thereon,
as found by the referee, amounting to $194.40, being a total
of $1,004.40, and his costs."

The defendant appealed. The case is more fully stated
in the opinion.

W. F. Eenney and J. W. Coogan^ for the appellant.

F, Chamberlin^ with whom was E. S. White^ for the ap-
pellee.

Andrews, C. J. The defendant by a written contract,
made the first day of April, 1881, agreed to labor for the
plaintiff on his orange grove in Florida for the term of one
year, and to use his best judgment and all reasonable energy
in carrying out the plans and instructions of the plaintiff and
in promoting his interests generally. For this service the
plaintiff agreed to pay to the defendant six hundred dollars,
payable quarterly ; and the defendant was to have house rent,
fuel and necessary table provisions for the whole time free of
charge. The contract was continued from year to year till
October, 1886.

The complaint alleges that the defendant did not perform
bis part of the contract, but spent a large part of the time
attending to his own business and neglecting the business of
the plaintiff; and also alleges that the defendant used the
animals of the plaintiff in and about his own business. The
plaintiff claims damages for such neglect and for the use of
his animals. The case was referred to the state referee, who
heard the parties and made a report to the Superior Court,
The report was accepted by that court and a judgment there-
on was rendered in favor of the plaintiff* The defendant
appeals and assigns five reasons of appeal. There are, how-



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FEBRUARY, 1890. 373



Stebbins v. Waterhouse.



ever, really but two questions presented: — ^first, whether the
facts found and reported by the state referee legally entitle
the plaintifE to the judgment in his favor; and secondly,
whether the Superior Court was justified in accepting the re-
port, after having found that the referee had exceeded the
power conferred on him by the statute.

Under the firat question two claims are made by the de-
fendant : — that by the contract he was not required to devote
his entire time to the service of the plaintifE; and that dam-
ages for the use by him of the plaintifiTs animals, as set forth
in the report, could not be recovered in this action.

Neither of these claims can be sustained. The contract
is for labor for a year, in an employment requiring constant
and continous attention. The salary was for a year, with
quarterly payments ; house rent, fuel and necessaries for the
table were to be supplied constantly; and there is nothing
in the contmct itself to indicate that the service was not to
be uninterrupted. In ordinary cases of labor the method of
computing the pay would determine the character of the
service. Where the pay is constant the inference is well-
nigh iiTCsistible that the service is likewise to be constant.
Moreover, the parties put a construction upon the contract
by their acts while it was in force. Whenever the plaintiff
was himself at the grove the defendant did labor constantly
with the other persons there employed. On eacli occasion
when the plaintiff learned that the defendant was engaged
in other business and spoke to him about it, the defendant
said the other business was not taking much, if any, time,
and promised to sell out; and he did sell out his other busi-
ness without making any claim that his entire time did not
belong to the plaintiff under the contract — a very strong
practical admission by the defendant that he then under-
stood the contract to mean just what the plaintiff now claims
it to be. These considerations, and others might be men-
tioned, fully sustain the construction which the Superior
Coiu-t put on the contract.

We see no objection to the recovery for the use of the
mule and buckboard. These were in the possession of the



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874 FEBRUARY, 1890.

Stebblns o. Waterhouse.

defendant as the plaintiffs servant, to be used in the plaint-
iffs business. He in fact used them in his own business
and derived a benefit from such use. In the absence of
evidence to the contrary it would be presumed that he in-
tended to pay the reasonable value of such use. But if it
had been shown that he did not intend to pay, as he received
a benefit from the use natural justice would require plainly
that a promise to pay be implied upon the consideration of
that benefit. Webster v. DrinkwateVy 6 Maine, 322; Osbam
V. Bell, 6 Denio, 870.

Under the second question it is claimed that the coui't
erred in accepting the report of the referee, because the
statute pursuant to which the report was made makes no
provision for any action by the court; and that the court
erred in accepting the report after having found that the
referee had exceeded the power conferred upon him by law,
that is, that such excess made the entire report void.

The statute, chapter 249 of the Acts of 1889, which cre-
ated the office of state referee, provides that it shall be his
duty to hear and report to the Superior Court the facts in
such cases as may be referred to him. It does not in terms
provide for any action upon the report by the court after it
is returned. The statute imposes upon the state referee
duties so similar to the duties usually performed by auditors
or committees, that we are led to conclude that it uses the
word " referee " in the sense of auditor or committee ; and so
it must be intended that the legislature designed the Superior
Court to proceed with a report from the referee in the same
way that it would proceed with a report from an auditor or
a committee. The defendant seems to have understood the
statute in this way ; for when the report came in he remon-
strated against its acceptance. He asked the court to reject
it. He evidently understood that the coui't must do some-
thing with it. For the court to reject the report was as
much beyond the letter of the statute as to accept it. If it
be assumed that the statute does not confer power upon the
referee to " find the issue " in any case, while in respect to
the mule and buckboard he undertook to find the issue.



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MARCH, 1890. 875



Tyler v. Waddingham.



then there was error to that extent in his report. But as
the report set forth all the facts the error became harmless.
The court, separating the erroneous part from the rest of
the report, proceeded itself upon the facts to find the issue
and thereon rendered its judgment. A severable error in a
judgment even, never vitiates the whole judgment. The
part which is erroneous is set aside and the rest stands.
Sherwood v. Sherwood^ 82 Conn., 15.

There is no error in the judgment complained of.

In this opinion the other judges concurred.



Margaret B. Tyler v8. Wilson Waddingham.

New Haven A Fairfield Cos., Oct. T., 1889. Andrews, C. J., Cabpen-
TEB, LooMis, Pebkticb and J. M. Hall, Js.

The defendant in 1881 authorized K to contract for the optional right to
purchase lands on the shore of Long Island Sound, agreeing to furnish
money for the purpose, it being their intention during the life of the
options to organize a corporation to take the lands at an advanced
price, the defendant to have two thirds and K one third of the profits.
The defendant advanced several thousand dollars which was placed in
a bank in the name of £" as trustee. The plaintiff owned a large farm
which was a part of the land embraced by their scheme, and K went
to her and proposed to purchase it, stating that he was the agent of a
company of which the defendant was the head, and upon his solicita-
tion she signed a contract to convey the farm to K or his appointees
on or before March 1, 1882, and K by it agreed to pay $50,000 for the
land, which was afterwards reduced to $40,000 by agreement. In Feb-
ruary, 1882, the conveyance was made to JT, who paid $5,000 in money
and gave two notes of $5,000 and $30,000 payable in one and ten years,
and mortgaged back the land as security for them. The purchase was
made by K without the authority of the defendant, who did not know
of it until the summer of 1882, when, on being informed of it by K, he
undertook with him to form a company to take the lands. The com-
pany was formed, and in October, 1882, JT, at the defendant's request,
deeded to it the lands in question and other lands purchased by him,
and the company issued to him as paid-up stock all but five shares of
its capital, $800,000, the defendant giving him a written statement



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376 MARCH, 1890.



Tyler v. Waddinghain.



that he was entitled to one third of the profits from the lands. After
the defendant knew that K had obtained deeds of land in his own
name, he continued to advance him money in aid of the enterprise and
endeavored to induce others to become interested in the scheme for the
development of the lands. Held that the relation of the defendant an4
K was tiiat of partners.

But held that if the plaintiff, in conveying the farm to K and taking his
notes in payment, had elected to give exclusive credit to him, she could
not proceed against the defendant now.

But in all such cases the election must be made with full knowledge as to
the relations of the parties between whom the choice is to be made.

And the rule requires actual knowledge as distinguished from constructive
knowledge.

The two notes of K held by the plaintiff and secured by the mortgage were
for $5,000, payable in one year, and for $30,0(X), payable in ten years,
both with semi-annual interest. In October, 1883, when the first note
was several months overdue, the defendant gave the pUlntiff the fol-
lowing guaranty: — **In consideration that Mrs. M. B. T. has at my
request agreed to forbear for two years from the present time to take
any steps to collect by legal process the principal of the note of $5,000,
dated Feb. 28th, 1882, signed by £. L. K., payable to her one year from
date, with interest at six per cent per annum, payable semi-annually,
unless requested by me to take such steps, I hereby guarantee the punc-
tual payment of each and every instalment of interest on said note as
they shall become due, and also of each and every instalment of interest
that shall come due on the note of said K. for $30,000, payable ten
years from date.'' Held that the guaranty was not limited to the two
years for which forbearance of suit was agreed, but was a guaranty of
the payment of the interest on both notes until the principal of both
was paid.

This guaranty being absolute, no demand upon the maker of the notes was
necessary before bringing suit upon it.

K having died the plaintiff presented the notes against his estate, which
was in settlement as a solvent estate, but after the time for presenting
claims had expired withdrew them. Held not to discharge the de-
fendant from his liability on the guaranty.

The negotiations between the parties which resulted in the agreement to
give the guaranty took place on Sunday, but the written guaranty was
not executed until a secular day. Held not to be invalidated by the
fact that the negotiations were on Sunday.

The court below made a finding in detail of sundry facts and then pro-
ceeded thus:— '^ Upon said finding I further find the second defense to
the first count true,'' (that the plaintiff had elected to give exclosiye
credit to K.) Held to be a conclusion of law and not a finding upon
evidence, and therefore reviewable upon error.

[Argued October 22d, 1880— decided February 7th, 1890.]

Action to recover the amount of a certain note overdue



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MARCH, 1890. 377



Tyler v. WaddiDgham.



and interest upon another note not yet due, upon a guaranty
of the defendant; brought to the Superior Court in New
Haven County, and tried to the court before Fenn^ J. Facta
found and judgment rendered for the plaintiff for f 1,050.
Both parties appealed. The case is fully stated in the opinion.

S. JS. Baldwin and T. H. Mussell^ for the plaintiff.

ff. Stoddard and C. K. Bush^ with whom was C. Kleiner,
for the defendant.

LoOMis, J. The record in this case as it comes to this
court is unnecessarily voluminous and complicated.

The complaint as first brought to the September session,
1887, of the Superior Court for New Haven County, was
against three defendants, namely : — The West Shore Land
Improvement Company, a New York corporation, having an
office and doing business in Orange in this state ; Edward
A. Anketell of New Haven, as administrator of the estate
of Edward L. Kimberly, late of said Orange, deceased;
and Wilson Waddingham of said Orange ; all of whom re-
mained defendants until the 23d day of February, 1888.

Meanwhile sundry voluminous motions to strike out and
expunge portions of the complaint were heard by the court
and in part sustained. Also sundry demurrers by the de-
fendants to the complaint for multifariousness and misjoinder
of defendants were heard and sustained by the court. After
which, on the date last mentioned, the plaintiff by written
withdrawal signed by her attorney, and made part of the
record, wholly discontinued the action against all the de-
fendants mentioned except Waddingham, and filed a new
complaint, called in the record the " second amended supple-
mental complaint," upon which the trial proceeded against
Waddingham alone.

This complaint consisted of two counts. The first count
sought to make Waddingham liable, either as unnamed prin-
cipal or as a partner with Kimberly, to pay a note of five
thousand dollars described in the complaint and given by



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878 MARCH, 1890.



Tyler v, Waddingham.



Kimberly on the purchase by him of certain real estate
belonging to the plaintiff.

The second count was based upon an express contract by
Waddingham as guarantor for the payment of the interest
on the note for five thousand dollars, and also on another
note for thirty thousand dollars given by Kimberly^to the
plaintiff on account of the purchase mentioned.

The court found for the defendant on the first count and
for the plaintiff on the second, and both parties have ap-
pealed to this court.

The facts found by the court are in substance as follows : —
In 1881 Kimberly entered into an agreement with the defend-
ant Waddingham, by which the latter was to furnish money
to procure options to purchase land (including the plaintiffs)
on and near the shore of Long Island Sound in the towns of
Orange and Milford, and then during the life of the options
to organize a corporation to ^tjike the lands at an advanced
price. Waddingham was to have two thirds and Kimberly
one third of the profits, and the former agreed to advance
to Kimberly, and did so, fifteen thousand dollars toward the
accomplishment of said objects. The sums so advanced
were to be and were deposited in a bank mutually agreed
on, in the name of E. L. Kimberly, trustee. The defendant
between the 6th day of September, 1881, and the 28th day
of February, 1883, inclusive, at different times advanced to
Kimberly in the aggregate the sum of forty-five thousand
three hundred and fifty-nine dollars, of which five thousand
dollars was paid back.

The plaintiff owned a large farm, as described in the com-
plaint, which was a part of the land the agreement between
Kimberly and the defendant had reference to. Kimberly at
first went to the plaintiff accompanied by a real estate bro-
ker to negotiate for the purchase of her farm, but as they
were not financially responsible she refused to negotiate with
them until they announced themselves as agents, and gave
her to understand they were agents of a company of which
the defendant was the head. Afterwards, on the 6th of Oc-
ttiber, 1881, she entered into an agreement in writing signed



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MARCH, 1890. 879



Tyler v. WaddinghaoL



by her and Kiiuberly, by which she agreed to convey the
land to Kimberly, or his appointees, on or before March 1st,
1882, and Kimberly on his part agreed to make payment
and give security as specified in the agreement. The price



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