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gation by the applicant that " the following estate has been
attached," and " that he is desirous that said attachment be
dissolved." The form of the bond is also prescribed, and
commences " Whereas the estate " of the applicant '' has been
attached," and reference is further made to " said attached
property" and "said attachment." The bond in suit fol-
lows closely the language of the statute. Clearly there
could be no valid attachment upon process against the de-
fendant, unless the defendant in the suit had an attachable
interest in the property. And that the law should constrain
the plaintiff to accept as a substitute a bond at the instance
of a person having no title or interest, and therefore an in-
strument without validity ; should take the property from
the hands of the officer and the custody of the law under
color of law, and restore it to one against whom even
after such restoration no presumption of any ownership or
interest in the property would exist, casting upon the plaint-
iff when forced to resort to the obligation which the law
against his will compelled him to receive, the ontis of show-
ing that it was not worthless, and that the defendant in the
original suit was not a mere impostor without standing in the
very forum whose jurisdiction he had himself solemnly in-
voked, is as far from our comprehension as it was from that
of the doubting juryman and those of his associates for whom
he spoke. Clearly, as we think, the defendant in this suit
is estopped from claiming that no estate was attached in
which the defendant in the original action had an interest,
and not only was the coui*t in error in charging as it did in



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MARCH, 1890. 435



Birdsall v. Wheeler.



reference to the burden of proof, but the instruction asked
for as to such estoppel should have been given.

The court, indeed, from one expression in the charge, ap-
pears to have recognized the binding effect of the recital, for
it stated that ^^ if it had been pleaded as an estoppel it would
have been absolutely conclusive on this point against the de-
fendant." To this the twofold answer is, that it did not
require to be so pleaded, and that in fact it was. In an ac-
tion brought directly upon the bond, which is fully recited
and set forth, what other or further pleading of the bond,
of its contents or of its effect, is necessary or possible ? Clear-
ly none, as it appears to us.

To meet the view expressed by the court the plaintiff
however moved to amend by adding a replication directly
aveiTing such an estoppel. This, upon the defendant's ob-
jection, the court declined to allow, holding that the officer's
return on the original writ, not in evidence, qualified the
recital in the bond so as to destroy its effect. As the court
stated to the jury that the return was not offered in evi-
dence, and has directly so found, we might not, although it
has been printed in the record, have felt at liberty to con-
sider it, except that the defendant has urgently pressed it
upon our attention, and it is probable that, if left unnoticed,
it would present a question upon another trial. We will
therefore say that the bond in suit, in referring to the offi-
cer's return, follows the form prescribed in the statute. We
think such reference does not in any sense limit or modify
the express declaration that the property of the applicant
has been attached. But were it otherwise, though the lan-
guage used in the return is, in one particular, peculiar and
unusual, we can discover nothing in it which would tend
to qualify the recital in the bond or to destroy its force.
It is true the officer does not say that he attached the arti-
cles as the property of the defendant Alden, but only that
by virtue of a precept directing him to attach the goods or
estate of such defendant, he attached the articles. Clearly
under such a writ he must have attached them as her pro-
perty if at all. The two forms of expression would seem



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486 MARCH, 1890.



Birdftall v, Wheeler.



equivalent. The defendant Alden considered it such attach-
ment when she accepted service and when she applied for
the dissolution. The statement that the property was found
in her possession, which is the peculiar expression in the
return, whatever may 'have inspired it, is not in conti-a-
diction of the rest of the return or inconsistent therewith.
Granted that possession is not evidence of ownership ; it
does not tend to prove the absence of ownership. The
words "found in the defendant's possession" might be
stricken out. With or without them it signifies the same.
An officer never states in his return that the property at-
tached is that of the defendant, but only that he attaches it
as such. If he does so attach it, and sees fit to add that he
found it in his possession, must it be inferred that he meant
that he believed the defendant to be merely the possessor
and not the owner? If he does so mean and so believe, of
what importance is it ? The acts of the officer are relevant,
but not his opinions.

It has been urged that the language of the bond being,
not that the obligors shall pay the actual value of the pro-
perty, not exceeding the amount of the recognizance, but
only the actual value of the interest of the defendant in the
original suit therein, that since it can be shown that such
interest was merely nominal, it ought also to be admissible to
show that it was nothing; and that a new trial should not,
at any rate, be granted to enable the plaintiff to recover
merely nominal damages. We cannot adopt this reasoning.
Nor do we know that the plaintiff will recover only nom-
inal damages. We think that, unaffected by the statute
hereafter referred to, the value of the interest of the de-
fendant in the original suit in the property would, in the
absence of all evidence to the contrary, be intended as that
of a full owner, that is, the actual value of the property;
that when such value is shown, the defendant, in the ac-
tion upon the bond, may reduce it, by proving the true
extent and the qualified or partial nature of such interest,
but may not show that the original defendant had no inter-
est, since that would be to nullify his own solemn adniis-



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MARCH, 1890. 487



Blrdsall o. Wheeler.



sions, and to impeach the very proceedings which he himself,
or at least the principal for whom he stood sponsor, had
instituted.

We think also the court erred in another regard. General
Statutes, § 987, provides that whenever in an action of this
character '' the defendant shall set up in the answer, or shall
claim, that the interest of the principal in the bond, in the
property attached in the suit in which the bond was given,
was, at the time of the giving of the bond, of less value than
the amount ordered by the process in such suit to be attached,
the burden of proving the actual value of such interest
shall be upon the defendant." The plaintiff requested the
court to charge the jury that the presumption of law by
virtue of this statute is, in the absence of any evidence,
that the value of the interest of Mrs. Alden in the pro-
perty at the time of giving the bond, was the amount or-
dered by the process ; and that this would be the presumed
value of her interest at the date of the attachment, in the
absence of any proof of a change in said interest ; and we
thuik that, in substance, she was entitled to such instruc-
tions, which the court neglected to give.

It is true that the bond is conditioned for the payment of
the value of the defendant's interest at the time of the
attachment, and this statute refers to its value at a later
date, namely, at the time of the giving of the bond, but the
statute must, if possible, be construed as designed to have
some effect, and the only way it can be so understood is by
holding, as seems most reasonable, that in the absence of
evidence to the contrary, though the value of the defend-
ant's interest may be greater at the earlier date, it cannot
be supposed to be less, and may be inferred to be the same
as at the later date, and that the provision as to the burden
of proof of value at the time of giving the bond includes
the presumption of equal value at the time of the attach-
ment. Surely no hardship can come to a defendant from
such a construction, which seems the only way in which the
statute can be made operative, since the value of the de-
fendant's interest at the time of giving the bond is of itself,



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438 MARCH, 1890.



Birdsall v. Wheeler.



and wholly unrelated to its value at the time of the attach-
ment, of no relevancy or importance whatever.

It is true also that the defendant did not set up in the
answer that the interest of Mrs. Alden was of less value
than the amount ordered to be attached, but it sufficiently
appears in the finding that such a claim was made by the
defendant. In fact, when the plaintiflf was compelled to
assume the burden of proving the value of Mrs. Alden's
interest, and the jury were expressly told by the court that
such burden was on the plaintiif, when no evidence was
offered on the subject except by the plaintiflf, to which the
defendant offered none in reply, but claimed that such evi-
dence, being of a sum greater than the amount of the bond,
but less than the amount directed to be attached, was largely
in excess of the true valuation, it would appear manifest
that, at least to all intents and purposes, the defendant had
the benefit and the plaintiff the burden which such a claim
would impose. Productive of such results, the failure to
disclaim would seem itself to constitute a claim within the
intendment of the statute.

This statute was originally enacted in 1886, being chapter
182 of the public acts of that session, and it was then made
applicable to pending actions. This provision in the Gen.
Statutes, in force at the time of the trial, is omitted, but
the effect of such omission is not to repeal such provision
by implication, or to prevent such applicability to cases
where the right had once attached. To hold otherwise
would exclude from its operation not only cases pending
prior to the original enactment in 1886, but also, although
the statute has not been altered, all cases brought subse-
quent' to such passage and prior to the first day of January,
1888, when the new revision became operative, which clearly
could not have been intended, nor can we intend.

It ought perhaps to be stated that since the case was be-
fore this court on the former hearing, in which a new trial
was granted, and before the last trial in the court below,
the plaintiff, by leave of court, amended the complaint by
striking out such portion thereof as alleged that a certain



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MARCH, 1890. 439



Osborne o. Taylor.



part of the attached property afterwards came into her pos-
session, and that a portion only of the judgment obtained
by her against Mi"S. Alden was for the value of that part of
the property ultimately retained and converted by Mrs.
Alden. Neither party offered any evidence and none was
before the jury in reference to this subject.

For the reasons given the judgment must be reversed and
a new trial ordered.

In this opinion the other judges concurred.



Jambs Osbobnb, Administrator, vs. Joseph Taylor [^ ^|

AND ANOTHER. I 58 m

New HaYen A Fairfield Cos., Jan T., 1890. Andrews, C. J., Carpen-
TEB, LooMis, ToBRANCE and Fenm, Js.

The defendants gave A their note by which they promised to pay her seventy-
five dollars semi-annually during her life. Held, in an action upon it,
that they could not show in defence a parol agreement of A at the time
the note was given, that if she did not need the money for her support
they should not be required to pay it.

And held that, upon the defendants' averment of such an agreement in their
answer, it would not be taken, on demurrer, to be an agreement in
writing.

Where a defendant relies upon such a contemporaneous agreement and
sets it up in his defence, it must be alleged to be in writing.

Where the court rules out evidence that is inadmissible, it makes no differ-
ence Uiat it rules it out upon a wrong principle.

[Argued January 28th— decided March 3d, 1890.]

Action upon a note given by the defendant to Jane Tay-
lor, of whose estate the plaintiff was administrator; brought
to the Court of Common Pleas of Fairfield County and
tried to the court before Curtis^ J. Facts found and judg-
ment rendered for the plaintiff against one of the defend-
ants, and appeal by that defendant. The case is fully stated
in the opinion.

L. Warner and B. JS. DeForest^ for the appellant.

J. B. HurlhUt and A. T. Bates^ for the appellee.



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440 MARCH, 1890.



Osborne v, Taylor.



Fekn, J. In this action the plaintifE^ as administrator
upon the intestate estate of Jane Taylor, deceased, seeks to
recover on a note made by the defendants, whereby they
promised to pay said decedent seventy-five dolkrs, semi-
annually, during each and every year that she might live ;
alleging in the complaint that six semi-annual payments had
been made and that seven were due and unpaid.

The first and third paragraphs of the second defence to
the action were denied. The second paragraph of the de-
fence is in these words : — " On said day," (being the day on
which the note was made), " the defendant promised the said
Jane Taylor to pay her, each year, so long as she should live,
the sum of one hundred and fifty dollars, in semi-annual pay-
ments of seventy-five dollars each, if the said Jane Taylor
should need said sums for her support ; and said note was
given as evidence of said promise, and because of it, and be-
cause of the promise then made by the said Jane Taylor to
the defendants that if she did not need said sums for her
support the defendants should not be required to pay them."
To this paragraph the plaintiff demurred and the court sus-
tained the demurrer. Afterwards, as the court finds, " upon
the trial of said cause the defendants offered evidence to
prove that, at the time said note was given, it was agreed,
by and between the defendants and the said Jane Taylor
that no demand should be made for the payment of said note,
and that the defendants should in no case be required to pay
it, unless the money should be actually needed and required
for the support of said Jane during her lifetime ; and that
said money was not in fact so needed or required. To this
evidence the plaintiff objected, and the court excluded the
same, on the ground that the question of law had been pre-
viously settled by the ruling of the court on the demurrer."

The court having found for the plaintiff, as against the de-
fendant Jane L. Taylor, she appealed, assigning said rulings
as reasons therefor.

In Bean v. Maaon^ 4 Conn., 432, it is said — " When an
agreement is reduced to writing, all previous negotiations are
resolved into the writing, as being the best evidence of the



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MARCH, 1890. 441



Osborne v. Taylor.



certainty of the agreement;" and in Pierpont v. Langdon^
46 Conn., 500, it is further said — " A firmly established rule of
law forbids the reception of evidence as to an oral agreement,
alleged to have been made at the time of executing a note,
offered for the purpose of varying, qualifying or contradicting
the absolute terms of the written contract." These ct)ncise
statements of incontestable principles would seem in them-
selves fully decisive of the questions presented by the record.
The defendant however urgently contends that the second
paragraph of the second defense, taken in connection with the
third paragraph, which alleges that all of the note which was
required for the support of the decedent had been' paid, con-
stitutes a valid answer to the complaint. The ground of this
contention is, that no claim is made in the demurrer that
the alleged promises were not in vvriting, and that such
a claim could not, indeed, be raised by demurrer, for that
in pleading an averment that a contract was in fact made,
if it be a contract which in law must be in writing, is the
same, in legal effect, as an averment that it was made in
writing ; and Swift's Digest, vol. 1, side page 265, is solely
cited in support of this proposition. Referring to this pas-
sage it will be found that the distinguished author, who is
there speaking of pleadings under the statute against frauds,
while laying down the rule in reference to declarations sub-
stantially as above claimed, directly adds the following : —
*'But where the defendant relies upon such contract in bar
of an action brought against him, and pleads it as such, it
must then be alleged to be in writing." On the other hand,
we think the defendant's allegations clearly show that the
promises on which she relies were not in writing. The state-
ment that the note was given as evidence of the promise
imports this ; for it would be unnatural to declare a note to
be evidence of the promise, if another writing of an incon-
sistent nature executed prior to or contemporaneously there-
with existed, and was intended to constitute the promise
itself. What other evidence could there be except such
writing, or, in case of its loss, proof of its contents? Even
if it should be said that the promise may have been origi-



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442 MARCH, 1890.



Osborne u. Taylor.



nally orat but reduced to and evidenced by writing, the an-
swer is that the defendant alleges that the note was given
as such evidence.

It is further somewhat faintly urged that the promises
alleged do not contradict, but only modify the promise con-
tained in the note, by annexing to it a condition stating
when and under what circumstances it shall be payable. . But
the note itself explicitly states that, and any other and differ-
ent statement must, in the nature of things, be inconsistent
with that statement.

The defendant further claims that the court erred in ex-
cluding the evidence offered upon the trial, because, whether
admissible or not, the ground of such exclusion, as stated by
the court, "that the question of law had been previously
settled by the ruling of the court upon the demurrer," is not
valid. Since the evidence offered was not admissible upon
any ground or for any purpose, it would seem practically to
matter but little whether the court was technically accui*ate
or not in this expression. It however seems to us to be cor-
rect. By the language used the court clearly meant that the
decision upon the demurrer involved the ruling that the evi-
dence offered was not admissible, and further, that the only
portion of the answer under which the evidence could be
claimed, since such a defence, if valid, would require to be
specially pleaded, having been held bad upon demurrer, was
for their present purpose out of the case.

The defendant further claims that the evidence tended to
show that the note was without any consideration, and was
therefore admissible. The defendant has however not un-
dei-taken to explain to us how the evidence would tend to
indicate this, and we have been unable to discover.

There is no error in the rulings complained of.

In this opinion the other judges concurred.



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MARCH, 1890. 448



Heminway v. Heminway.



BuELL Heminway vs. Mereitt Heminway.

New Haven A Fairfield Cos., Jan. T. 1890. Andrews, C. J., Cabpbn-
TBB, LooMis, ToBBANCB and Fenn, Js.

The plaintiff, a stockholder and director in a manufacturing company, but
who was engaged in organizing a rival company, obtained the letter file
of the former company at its office and was taking memoranda from it
for the benefit of the rival company. On being requested by the defend-
ant, who was the secretary of the company and had charge of its papers,
to return it, he refused to do so, and the defendant thereupon forcibly
took it from him, infiicting some personal injury but using no more
force than was necessary. Held, in an action for the assault, that the
act of the defendant was justifiable.

Directors of a corporation have no right under any circumstances to use
their official positions for a purpose hostile to the corporation.

[Argued January 28th— decided March 3d, 1890.]

Action for an assault, brought to the District Court of
Waterbury, and tried to the court before Bradstreet^ J, Facts
found and judgment rendered for the plaintiff, and lappeal by
the defendant. The case is fully stated in the opinion.

C. R, IngersoU and S. W. Kellogg^ for the appellant, cited
Gen. Statutes, §1953 ; 1 Morawetz on Private Corp., §§ 517-
520; The King v. Merchant Tailors* Co.^ 2 Bam. & Adol.,
115; Williams v. Oravel Road Co.^ 45 Ind., 170 ; Rosenfeld
V. Einstein^ 46 N. Jer. Law, 479 ; Pratt v. Meriden Cutlery
Co., 85 Conn., 36.

D. F, Webster, for the appellee, cited, with regard to the
plaintiff's lights as a dy-ector. Gen. Statutes, §§ 1950-1953;
Cook's Stock & Stockholders, § 511; People v. Throop, 12
Wend., 183 ; Lewis v. Brainerd, 63 Verra., 510, 519 ; Huylar
V. Cragin Cattle Co,, 40 N. Jer. Eq., 392 ; Commonwealth v.
Phoenix Iron Co., 105 Penn. St., 111. And with regard
to the defendant's liability for the assault, Sampson v. ffen-
ry, 13 Pick., 36 ; Commonwealth v. Haley, 4 Allen, 318 ;
Churchill V. Sulbert, 110 Mass., 42.



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444 MARCH, 1890.



Hero in way v. Hem in way.



Andkews, C. J. The defendant was on the day named in
the complaint the secretary of the M. Hemiuway & Sons Silk
Company, a joint stock corporation located at Watertown,
and as such had the charge and custody of the office and of
all the papers of that corporation. On that day tlie plaintiff
came into the office of the corporation, took the letter file
from the place where it was usually kept, and commenced
to look it over and to make memoranda from the letters and
bills contained therein. The defendant requested the plaint-
iff to return the letter file to him, as he wanted it. The
plaintiff refused to give it up, and thereupon the defendant
forcibly took it from him, using no more force than was ne-
cessary for that purpose, but in so doing scratched the plaint-
iff's hands so that the blood came ; which was the assault
alleged in the complaint. The plaintiff was a stockholder
in and a director of the corporation, and he claims that he
rightfully refused to return the letter file to the defendant
by reason of his so being a stockholder and a director. The
finding also shows that he had been engaged with others in
organizing, and that he was active in the management of,
another silk company in the same town, rival to the one
above named, and that he was using the letter file at tlie
time of the alleged assault and taking memoranda therefrom
for the benefit oi such other company.

It may be admitted that a stockholder or a director in a
joint stock corporation has the right at any reasonable and
proper time to examine and inspect the books and papers of
the corporation, whenever it is necessary to do so for the
protection of his interests as a stockholder or for the per-
formance of his duties as a director. The statement of this
right implies that such examination Qould not be had at any
other time or for any other purpose : and it clearly implies
that such exandnation could not be rightfully had for a pur-
pose hostile to the corporation. " The directors or trustees
of a corporation, in accepting their appointment, impliedly
undertake to give the company the benefit of their best care
and judgment, and to use the powers conferred upon them
solely in the interest of the corporation. They have no right



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MARCH, 1890. 446



Huntley v. Holt.



under any circumstances to use their official positions for
the benefit of any one except the corporation. It is a gen-
eral rule that the power conferred upon an agent must be
exercised to advance the interest of the principal and for no
other purpose." 1 Morawetz on Corporations, § 617. See
also Alford v. Miller^ 32 Conn., 648 ; Uoyle v. Plattsburgh ^
Montreal K B. Co., 64 N. York, 314.

When the plaintiff was using the letter file for the benefit
of his rival company he was misusing his power and betray-
ing his trust as a director of the M. Heminway & Sons Com-
pany. His being a director in that company, so far from
being an excuse to him for refusing to return the letter file
upon request, was an imperative reason why he should have



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 40 of 60)