Connecticut. Supreme Court of Errors.

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names when ordered by the court. Held that, where the clerk did not
roll up the papers, but laid them flat in the box, and then shuffled
them about, it was not a compliance with the requirement of the char-
ter, and became a sufficient ground for a challenge of the array, in a
case in which jurors, whose names were drawn from the box, were im-
paneled in court. McOann v. Hamilton, Q^,

LIEN i BUILDERS'.)
See BuiLDBBs' Lien.

LIEN FOR CITY ASSESSMENT.

1. A city charter prescribed in detail the proceedings to be had in making
an assessment on property ownei-s for benefits from public improve-
ments, and provided that **all assessments of benefits made under the
provisions of this act shall, when completed, become a debt due to
said city from the owner or owners of property specially benefited, and
shall remain a lien upon such property," and that the lien "may be
foreclosed in the same manner as if it were a mortgage thereon in
favor of said city." In a complahit for the foreclosure of such a lien
it is sufficient to aver generally that all the requirements of the charter
were complied with, without averring in detail a performance of them.

2. The effect of the provision that the assessment should become a debt,
is to place it upon the same footing for remedial purposes with other
debts.

LIEN (EQUITABLE.)

See Equitable Libit.
LIFE INSURANCE.

See IN8UBA.NCR (Life.)
MASTER AND SERVANT.

See Employer and Eaiployrb.
MORTGAGE.

1. A mortgagor had given the following note : " June 29, 1887. On the
first day of August, 1887, 1 promise to pay to the order of J. K. the



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INDEX. 626

sum of eighteen ddlars, and thereafter the farther sum of eighteen
dollars on the first day of each succeeding mouth until the entire sum
of fifteen hundred dollars shall have been paid. Any fraction of said
sum to complete said entire sum to be paid together with the last pay-
ment, Mrith interest at six per cent, per annum, payable semi-annually,
upon such sum as shall be due. The maker reserves the right to make
payments upon this note at any time and to any amount in excess of
said eighteen dollars per month. Value received." (Signed). This
note was described in a mortgage given to secure it, as follows : — ** On
the 29th day of June, 1887, the defendant owed the plaintiff fifteen
hundred dollars, as evidenced by his note for fifteen hundred dollars,
payable in monthly instalments of eighteen dollars each, the first in-
stalment being payable August 1st, 1887, and thereafter on the first
day of each succeeding month till the entire sum be paid, with interest
at six per cent., payable semi-annually, on such sum as should be due ;
reserving the right to make any payment on said note of more than
eighteen dollars, at his option." Held to be sufficiently described.
King v. KilMdty 109.
2. The statute (Gen. Statutes § 3010), which provides that *' the fore-
closure of a mortgage shall be a bar to any further action upon the
mortgage debt, not« or obligation, unless the person or persons who
are liable for the payment thereof are made parties to such foreclo^
sure," applies to mortgages of personal property as well as of reaJj
estate, and to proceedings for the sale of such personal property undev
§ 8016. Ansonia JBatiib's Appeal from Commisaionera, 257.

NEW TRIAL.
Where the jury, under an erroneous charge of the court, returned a gen-
eral verdict for the plaintiff of one dollar, and the defendant had filed
a counterclaim for $100, which had been heard with the rest of the
case, it was held that the small iiess of the verdict was not a reason for
denying the defendant a new trial for the error in the charge, because
it could not be known how far the verdict was affected by the counter-
claim. McGann v. Hamilton, 70.

NEW TRIAL (PETITION FOR.)

1. By statute (Gten. Statutes § 1125,) courts in actii^upon petitions for
new trials for newly-discovered evidence, must be governed by the es-
tablished rules on the subject. Huated v. Mead, 55.

2. Whenever the court violates those rules in granting or refusing a new
trial, it commits an error which may be reviewed by the Supreme Court
on proceedings in error. lb,

8. It is well settled that a new trial should not be granted for newly-
discovered impeaching evidence. lb,

4. And evidence that a witness since the trial had told a different story
from that which was told in court. Is essentially of an impeaching
character. lb,

5. And evidence that a witness had been convicted of theft is also of an
impeaching character. lb,

0. It will not be laid down as an inflexible rule that a new trial will not
be granted for newly-discovered evidence of the character just men-
tioned ; but it should not be done unless it appears reasonably certain

Vol. lviii. — 40



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626 INDEX,

that injustice has been done and probable that the result of a new
trial would be different. lb,

7. And a new trial will not be granted where the newly-discovered eyi-
dence is merely cumulative. lb,

8. And where a long time has elapsed since the occurrences which were
the subject of investigation on the former trial, it becomes a serious
consideration against the granting of a new trial ; and this indepen-
dently of any question of laches on the ]5art of the petitioner, and on
the ground of the great disadvantage that the adverse party would be
subjected to from the loss of evidence by the death, removal or failure
of memory of witnesses. lb.

9. A petition for new trial is not to be regarded as a mere interlocutory
proceeding from the judgment in which error will not lie. lb.

10. The provision of the act of 1882 with regard to carrying up cases by
appeal, that the act should not affect petitions for new trials, having
been omitted in the revision of 1888, (Gen. Statutes, § 1120,) petitions
for new trials can now be carried up by appeal like other cases. lb.

NOXSUIT.
A nonsuit should not be granted where a plaintiff has introduced sub-
stantial evidence in support of his claim, and where the law applicable
to the facts as claimed and supported by such evidence, is favorable to
the plaintiff. Town qf Canton v. Town of Burlington, 278.

NOTES AND BILLS.
See AoREEMKNT (Pabol as Affectino Writtbn) 8, 4.

NOTICE TO TOWN OF INJURY FROM DEFECTIVE HIGHWAY.
See Highway (Defective) 2, 8, 4.

PARTIES TO ACTION.
See Insubance (Life) 3.

PARTNERSHIP.
1. A partner in a quarry company, who owned a one eighth interest, died
in 1857, leaving by his will to his wife one third of his personal property
absolutely, and one third of his real estate for life, and the rest of his
property to trustees for his minor daughter. By the terms of the part-
nership it was to be controlled by a majority in interest and was to
continue until such a majority should request its dissolution. A dis-
solution not being desired the property of the widow and daughter re-
mained In the business, and the partnership continued until 1888, when
a corporation was formed, all the partners taking stock in the propor-
tion in which they held interests in the partnership. The widow and
daughter became entitled to and accepted four hundred shares in the
aggregate, but disagreed as to their respective rights in them. The
property given them by the will and which had gone into the partner-
ship was appraised at the time, the personal at $6,000, and the real at
$19,000. The partnership had in the prosecution of its business used
up most or all of the personal property and replaced it with other, and
had exhausted some of the quarry land and purchased other, and no
separate account had been kept of income as distinguished from prin-
cipal, and earnings had been used in the purchase of lands and per-
sonal property used in the business. The business had greatly increased
and a large surplus had been allowed to accumulate, which went into
the capital of the corporation. Held that the proportionate interests



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INDEX. 627

of the widow and daughter in the property which was allowed to re-
main in the partnership after 1857 were not changed by the varying
quantities of personal and real estate held by the partnership at differ-
ent times, nor by the quantity of each at the time that the corporation
took the place of the partnership, and that the stock in the corporation
which represented their joint interest was to be apportioned between
them according to their relative interests in the property in 1857.
HotchkUs V. Brainerd Quarry Co., 120.

2. The widow was not entitled to a full share of the increase in the value
of the property as representing profits, nor to any part of the earnings
which the managing parties decided not to distribute in dividends but
to preserve as a surplus. lb.

3. The power given by the partnership articles to a majority in interest
to manage the business of the partnership and to declare dividends at
its discretion, necessarily involved the power to capitalize profits in-
stead of dividing them. lb,

4. And the widow, by agreeing with all the other partners that the entire
property of the partnership should go into the corporation at a certain
sum and constitute its capital, agreed, so far as that sum embraced
profit^s, that profits should be capitalized. lb.

5. The defendant in 1881 authorized K to contract for the optional right
to purchase lands on the shore of Long Island Sound, agreeing to fur-
nish 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 f 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 JSTor 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 K, 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, K^ 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 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 en-
deavored to induce others to become interested in the scheme for the
development of the lands. Held that the relation of the defendant and
K was that of partners. Tj/ler v. WaddingJianif 875.

a. But held that if the plaintiff, in conveying the farm to £'and taking



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628 INDEX.

his notes in payment, had elected to give exclusive credit to him, she
could not proceed against the defendant now. lb,

7. 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. lb,

8. And the rule requires actual knowledge as distinguished from con-
structive knowledge. lb,

9. The question whether a partnership existed between certain persons,
where the terms of their agreement and all the facts are admitted, be-
comes a question of law. Morgan v, Farrel^ 418.

10. It is not enough to constitute a partnership that the parties have a
common interest in the net proceeds of a business. lb.

11. A and B made a contract with C, the owner of a patent for a machine,
by which C granted to them the exclusive right to make and sell the
machine in the United States, and A and B agreed to manufacture a
machine without expense to C, and to run It for two months, and
afterwards to make machines to supply orders, and to pay to C an
amount equal to one half the gross profits of the business. Held not
to create a partnership of C with A and B. lb,

12. And as the contract made no provision with regard to the way in
which A and B, as between themselves, should carry out their joint
undertaking, It could not be construed as making them partners. 16.

13. The liability of a person who is claimed by his course of conduct to
have become a partner as to third persons, Is based on the doctrine of es-
toppel, and in order to charge him on that ground it is not enough to
show that he was represented by others to be a partner, or that his
name appeared In the firm; It must be shown that he knew that he
was being held out as a partner and that he assented to It, or facts
must be shown from which such assent can fairly be inferred. lb,

14. It Is always a question of fact whether there has been such a holding
out as to estop the party from denying the partnership. lb.

PAUPER
By section third of the act of 1878, (now section 3311 of Gen. Statutes,)
all persons needing relief, who have no settlement In any town in this
state, are state paupers, and shall be provided for by the state comp-
troller for six months after they come Into this state; and by section
twenty-first of the statute, shall, after the period of six months pro-
vided for in the act, be sent back to the town where they resided when
they applied for relief, and such town shall be chargeable for their
support until they shall have gained a settlement In some other town ;
provided such paupers shall have had a residence of six months or more
in such town when they applied for relief. By the decision in Marl-
borough V. Chatham, 50 Conn., 564, the six months during which the
pauper was entitled to help from the state were held to be the first six
months of his pauperism and not of his residence In the state. An act
passed in 1885 provided that they should be the first six months of his
residence. In a suit by the plaintiff town against the defendant town
for supplies furnished to a pauper claimed to be chargeable to the de-
fendant, the plaintiff offered evidence tending to prove that the pauper,
who had no settlement In any town, but had lived more than six months
in the defendant town, became needy In 1884, and was for a year or



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INDEX. 629

more thereftfter supported by that town at the house of a friend within
the plaintiff town, under an arrangement made by the selectmen of the
defendant town, and that in 1888, the pauper needing further aid, which
the selectmen of the defendant town refused to furnish, the plaintiff
town, in which he had continued to reside, furnished him aid. The
plaintiff was nonsuited by the court. Held, in setting aside the non-
suit— 1. That the pauper was a state pauper. 2. That his status was fixed
by the statute In force when he first applied for relief, and was not af-
fected by the act of 1885. 8. That the defendant town would, upon
the facts claimed, be chargeable with his support. Town of Canton v.
Toton qf Burlington^ 277.
PERSONAL SERVICES (CONTRACT FOR).

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. Stebbins v. Water-
house, 371.

See Specific Pebfobmangb of Oontbact fob Pebsonal Services.
1, 2, 8.
PETITION FOR NEW TRIAL.

See New Tbial (Petition fob).
PLEADING.

A mere allegation of fraud, without stating the facts upon which the
fraud is predicated, is insufficient. Oatea v. Steele^ 316.

See Lien fob Citit Assessment, 1; Bastabdy, 1.
PRACTICE ACT.

See INSUBANOE (Life), 5.
PRESENTATION OF CLAIM.

1. A was the president of a corporation and also the executor of B, B
had given his note to the corporation, and at the time of his death A
h(>ld it, and had since continued to hold it, as president of the corpora-
tion. Held that A* 8 knowledge and possession of the note as president
were also his knowledge and possession of it as executor, and that the
law would regard It as presented against the estate of B, Brown A
Brother B v. Brown, 85.

2. And held not to affect the case that A Intended not to present the
claim against the estate of B, being a principal legatee under the will
of B and Interested in the avoidance of the claim by the estate. lb.

PRINCIPAL AND AGENT.

1. One who undertakes to act as agent for another cannot, in the matter
to which his agency relates, act for himself. He cannot, if employed
to purchase for another, be himself the seller. Diabrow v. Seeor, 35.

2. If he does so it is the right of the principal upon learning of it to re-
scind the contract and reclaim whatever he has paid as the considera-
tion for the purchase. lb,

8. But he may. If he will, retain the property so bought, and affirm the
contract i&.



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630 INDEX.

PROBATE (X)URT.
A testator constituted the residue of his property, which w»s nearly all
personal, a fund, the income from wliich was to be divided into as
many parts as he should leave nephews and nieces, or their represen-
tativ<'s, living at his death, and one part paid to each during life; with
a gift over of each share of the principal upon the death of the person
having the life use of it. The testator was domiciled within the pro-
bate district of Ledyard and the probate court of that district assumed
jurisdiction of the estate for the purpose of its settlement. The exec-
utor lived within the probate district of Norwich, and had the personal
property at his place of residence. He had settled his administra-
tion account, but no distribution or other division of the property bad
been made. No trustee was api>ointed by the will and the executor had
not been appointed trustee by the court. Most of the nephews and
nieces mentioned in the will resided out of the state and several of them
in the state of Pennsylvania. A, who had been appointed by a court
in that state a trustee of the property of those residing there, applied
to the probate court of the Norwich district, under Glen. Statutes, $ 497,
for an order giving him the custody of the portions of the property of
which his wards had the life use, making the executor a respondent.
Such an order was made and the executor appealed from it to the Su-
perior Court, which court aflftrmed the order of the probate court On
an appeal from this judgment by the executor, it was heM—l. That
the executor's liability on his administration bond if he complied with
the order, and his liability to a suit by A if he refused to comply with
it, gave him a sufficient interest in the matter to enaMe him to appeal
from the probate order. 2. That the will intended a single trust, to be
managed as such, and the income from it divided among the beneficiaries,
and not as many different trusts as there were separate beneficiaries.
8. That the estate being legally in settlement in the probate court of
the Ledyard district, and not having been divided by distribution or
otherwise, that court alone had jurisdiction over an application by a
foreign trustee for an order for possession of portions of the property.
4. That the fact that the executor resided within the probate district
of Norwich, and bad the personal property in his possession there, did
not give the probate court of that district jurisdiction. 5. That it was
the duty of the Ledyard probate court to keep the property within ito
control until the time came for final distribution. HewiW^ Appeal
from Probate, 223.
See Equitable Lien, 1.

PROMISSORY NOTE.
See Notes and Bills.

QUARRT.

See PABTNSR8HIP, 1.

RAILROAD COMPANY.
The act of 1880 (Session Laws, ch. 220,) which provides for an order by
the railroad commissioners for the change of a highway where crossed
at grade by a railroad laid out since the highway was made, and author-
izes the commissioners to apportion the expense of the alteration be-
tween the town and the railroad company, but limits the amount to be
•et to the town to one quarter of the expense, and requires that the



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INDEX. 681

rest be paid by tbe railroad company, is not unconstitutional as conflict-
ing with the provisions for *' due course of law " in taking property,
in the 14th amendment of the constitution of the United States, and
in article 1, sees. 9 and 12 of the constitution of this state. N, York dk
N, England B, R. CoJ'b Appeal from B* R. CommisHoners, 532.

RECEIPT IN FULL.
A, one of the defendants, placed in the hands of B, the other defendant,
an attorney, a small claim against C, on which B brought a suit before
a justice of the peace. After the writ was served C called on A and
paid him a less sum than the full amount of the claim, which A
agreed to accept in full of the debt and costs, and gave him a receipt
in full therefor. On the return day of the writ C did not appear and
B toolc a judgment by default for the whole amount of the claim. In
a suit brought by C for an injunction against the enforcement of the
judgment, alleging the above facts, and charging fraud in the matter,
it was held — 1. That the receipt in full was a complete defense to the
action. 2. That C was not to be regarded as guilty of laches in not
appearing before the justice and pleading it. Gates v. Steele, 816.

RECEIVER.

1. Tbe defendant, appointed by the Superior Court receiver of an insol-
vent copartnership, as such receiver employed the plaintiff, attorney
at law, to render him certain necessary legal services. No agreement
was made as to the amount to be charged by the plaintiff, but after the
services were rendered he charged $125. The defendant declined to
pay more than $75, which he paid, and the plaintiff received it and
credited the amount on his account. The defendant afterwards ren-
dered his final account to the court, giving the plaintiff notice to attend
and be heard as to the amount to be allowed on account of his claim by
the court. The plaintiff attended and was heard as to the amount to
be allowed, but the court refused to allow more than $75, and dis-
char<;ed the receiver from his trust. Held that the plaintiff was con-
cluded by this adjudication and could not recover anything more from
the defendant. Walsh v. Baymondj 251.

2. A receiver has no right as such to employ counsel without the consent
of the court; and when counsel are so employed the court will deter-
mine the amount to be allowed them for their services. lb,

3. A receiver may however make himself personally liable upon his con-
tracts, and will be protected by the court appointing him only when he
acts strictly under its orders. lb.

SALE.
1. C by a written contract agreed to deliver to a manufacturing company
a quantity of machinery, of the agreed value of $12,456, for which the
company was to give him its promissory note for that sum payable
eight months after date; the company to set up the machinery in its
mill, to keep it in good order and insured for C*s benefit, and to hold
it as the property of C until the note and its renewals had beeh fully
paid, when it was to be sold to and become the property of the com-
pany ; and on default of payment, or if it was not kept in good order
and insured, Cto have the right at any time to take possession of it
and remove it as his own property; whatever had then been paid to go
for the use of the machinery and the notes to be delivered up. Under



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682 INDEX.

this contract an absclute note was given by the company for the price
at eight months, and when the note fell due another was given at six
months for the same sum, with a payment of the interest in advance.
Held — 1. That the contract must be construed as an absolute promise
on the part of the company to pay for the machinery at the expiration
of the eight months credit agreed upon. 2. That the right of the com-



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