text:
    Bassett vs. Holbrook and others.
    The plaintiff, who was the holder of three promissory notes secured by a mortgage of real estate, executed a written instrument, which purported to be a conveyance of the same to 0. and also to be a power of attorney, authorizing 0. to transfer them. Although there was a secret understanding between the plaintiff and 0. that the proceeds of the notes, when collected, should belong to the plaintiff, the transaction was accompanied by such circumstances, as to induce the maker to believe that C. had purchased them for a valuable consideration. C. having died, his administrators, to avoid litigation with the maker who claimed that the notes were procured by fraud, discharged them and received from the maker a new note for a less amount, secured by a mortgage, which, with other real estate, embraced the premises included in the plaintiff’s mortgage. On a bill in equity against the mortgagor and the administrators of C., it was held, that the plaintiff was estopped from denying the validity of said instrument as an assignment of said mortgage and the notes given him, and that the bill, which was not adapted to obtain any relief to which the plaintiff might be entitled as the equitable owner of the note given to said administrators, ought to be dismissed.
    This was a bill in chancery, brought by Charles Bassett against Daniel Holbrook, and the administrators on the estate of Clark Miles, deceased, for a decree against the defendants, foreclosing all their right in equity to recover certain premises, mortgaged by said Holbrook to secure certain notes, given by him to the plaintiff, praying also that the court would order that said administrators should deliver to the plaintiffs the notes and mortgage described in the bill, and an instrument in writing executed by the plaintiff, by which said administrators claimed that said notes and mortgage were assigned by the plaintiff to the deceased.
    The defendants, having filed an answer to the plaintiff’s bill, the case was referred to a committee from whose report the following facts are obtained, which are all that bear materially upon the points discussed and decided.
    On the 13th day of June, 1853, the defendant, Daniel Holbrook, purchased of the plaintiff the premises described in the bill, with other property, for the sum of fourteen hundred and sixty-five dollars, and therefor executed to the plaintiff his three several promissory notes, all dated June 13th, 1853, one for $365, payable July Lst, 1853, with interest; one for $500, payable July 12th, 1853, with interest; and one for $600,'payable August 1st, 1853, with interest, and to secure the payment of said notes, executed to the plaintiff a mortgage of the same premises.
    At the time of said purchase, and the execution of said notes and mortgage, Holbrook was not mentally incompetent to transact business, but he was an old man, eccentric in his habits, weak in mind and judgment, improvident, and not capable of prudently and properly managing his affairs, and was a suitable and proper person for the appointment of an overseer over him, to advise, and direct him in the management of his business. In the latter part of the month of June, 1853, and after his purchase of the plaintiff was known, the selectmen of the town of Seymour appointed Sylvester Smith, of said town of Seymour, to be his overseer, pursuant to the provisions of the statute, who accepted said trust.
    The purchase of said premises by Holbrook was an unnecessary, and improvident one; he had no means of paying the notes when they should mature, and before said purchase the plaintiff was told by a son of Holbrook not to deal with his father, for he was incompetent and incapable of transacting business, and that it would distress his family, to which the plaintiff replied that he, (the son,) had better go home and attend to his own business.
    When said note of $365 and said note of $500 severally matured, the plaintiff placed them with the other note of $600, and said mortgage deed, in the hands of George P. Shelton, Esq., an attorney and counsellor at law, with instructions to commence suits on said two first mentioned notes, and he pursuant to said instructions, put them severally in suit, returnable to the county court to be held at New Haven, on the first Tuesday of September, 1853.

      Said overseer, after his appointment, applied to the plaintiff to take back the premises and cancel the purchase, which the plaintiff refused to do; and thereupon said overseer employed Harris B. Munson, an attorney, in behalf of said Daniel Holbrook, to take the necessary steps to procure the rescinding of said purchase, and to contest the validity of said notes. The suits brought upon said two notes were continued from the September term to the December term of the county court for New Haven county, at which term, by reason of mistake in said Munson’s name not being entered as appearing for the defendant, without the knowledge or consent of said Holbrook, or his overseer, judgment was rendered by default against Holbrook, in both suits, for the amount of debt and costs in each respectively.
    On the 26th day of August, 1853, Clark Miles, of said Seymour, then living, but since deceased, was intending to leave in a few days for the west, and the plaintiff was desirous of accompanying him, and on said day the plaintiff and Miles repaired to the office of George P. Shelton, Esq., his attorney, in whose hands said notes and mortgage had been left as herein before found, when the plaintiff informed said attorney that he had sold his interest in said notes, and mortgage, to said Miles; that he was going west, and did not expect to return, and requested said attorney to prepare an instrument conveying his interest in said notes and mortgage of said Holbrook to said Miles, so that said Miles could prosecute the suits then pending on said two notes at Miles’ expense, and also that said Miles should pay all the expenses, including said Shelton’s bill, that had already accrued thereon.
    Said Shelton, not being able to prepare the instrument at that time, agreed to have it ready the next day for execution, and thereupon Miles requested Shelton, when said conveyance was executed by the plaintiff to keep it for him, and prosecute the suits, then pending on said two notes, to judgment, as Miles would not be able to see him again before he left for the west. Shelton suggested to Miles that he would execute a receipt to him for the notes and deed, and it was arranged that Shelton should prepare the assignment of the notes and mortgage according to the aforesaid instructions, that the plaintiff should come the next day and execute it, and leave the same with said Shelton, and Shelton was to give to the plaintiff the receipt to deliver to said Miles.
    Pursuant to said instructions and arrangement, Shelton prepared the assignment and receipt, and on the 27th day of August, 1853, the plaintiff executed the following assignment left with Shelton :
    “ Know all men by these presents, that I, Charles Bassett, of the town of Seymour, in the county of New Haven, and state of Connecticut, of the first part, in consideration of the sum of one dollar, and other valuable considerations received to my full satisfaction of Clark Miles of said town, of the se.cond part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said party of the second part a certain mortgage, bearing date the 13th day of June, A. D. 1853, made by Daniel Holbrook, of said town of Seymour, to secure the sum of fourteen hundred and sixty-five dollars, together with the notes of hand therein described, and the money due and to grow due thereon, with the interest, to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, for his sole use, benefit, and behoof forever, subject only to the proviso in the said mortgage mentioned. And I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney, irrevocable in my name, but at his proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and also to prosecute in my name all suits now pending thereon, and in case of payment of the said notes, to discharge the same as fully as I might or could do if these presents were not made.
    And I covenant for myself, my heirs, executors, and administrators, that I am the true and lawful owner of the said notes and mortgage, and that I have just right, full power and authority to sell, assign, and dispose of the same, and that there is now owing thereon the full amount of said notes and interest. In witness whereof I have hereunto set my hand and seal this 27th day of August, A. D. 1853.
    Charles Bassett, [l. s.]
    Shelton then executed the following receipt, and gave it to the plaintiff to deliver to Miles :
    “Eeceived, Seymour, August 27th, 1853, of Charles Bassett, a certain mortgage-deed, dated the 13th of June, 1853, and made by Daniel Holbrook, to secure three notes of hand, amounting to the sum of $1,465.00, with an assignment of said mortgage and notes to Clark Miles. It being understood that said notes are left with me for collection in favor of said Miles; also some other papers relating to the land mortgaged.”
    On the evening of said 27th day of August, said Miles signed and executed upon, and immediately under such receipt the following certificate, which he left with the plaintiff: •
    “ The proceeds of the above mentioned papers and notes is to come to Charles Bassett.”
    On the 20th of September, 1853, Miles died intestate.
    On the 29th of September, 1853, the defendants, Hiram Upson and Mary Ann Miles were duly appointed administrators on the estate of said Miles, deceased, and entered upon the execution of their trust; were notified by said Shelton of said assignment of said notes and mortgage, and inventoried the same as part of the estate of said Miles, deceased, believing the same to be the property of said' Miles; and from the date of said assignment, said Shelton acted as the attorney of said Miles, and of his administrators after his death, in the management and prosecution of the pending suits upon said two notes to judgment, and at their expense.
    On the 24th day of October, 1853, the plaintiff returned from the west to the town of Seymour, and soon after his return called upon said Shelton, and showed to him the receipt and certificate, and claimed that said Miles had never paid him anything for said notes ; that the receipt and certificate was all the evidence he had that said Miles had not paid him, and requested Shelton to give up to him said notes, mortgage, and' assignment, which said Shelton declined, without the authority and direction of the administrators on said Miles’ estate, for whom he then held the same ; and the plaintiff was then advised by said Shelton to present his claim against the estate of said Miles.
    Soon after, the plaintiff called upon the defendant, Upson, and showed to him said receipt and certificate, and said that he had transferred the notes and mortgage to said Miles, but had received no pay for them; that he wanted to get his papers back, and was informed by said Upson that he could not consent to give up the papers.
    The plaintiff never presented any claim for the consideration of said notes against the estate of said Miles for allowance, and no demand for the delivery of the papers was ever made by the plaintiff, or any one in his behalf, upon said Shelton or the defendants, except as before stated, until on or after the 21st day of January, 1854, on which last mentioned day the plaintiff executed to his father, Abel Bassett, a power of attorney, to act in his behalf, under which power, sometime in the month of January, 1854, the said Abel Bassett made a formal demand of said Upson, as administrator, for the delivery of said notes and mortgage.
    When judgment had been rendered by default against Holbrook, notice was given by Holbrook’s overseer to said administrators that said judgment had been obtained by mistake, and that the validity of the notes would be contested on the ground of fraud in their procurement, and of the incompetency of the said Holbrook to give the same; and to avoid the expense of a litigation, said administrators and said Holbrook, by the advice and consent of his said overseer, agreed to a compromise on the 19th day of January, 1854, by which the said Holbrook, in consideration of the giving up, and discharging said three notes, given by him to the plaintiff, and said judgments thereon, by said administrators, executed and delivered to said administrators his note of that date for the sum of twelve hundred and fifty dollars, payable two years from its date, with interest, and secured the same by a new mortgage upon the premises described in the bill, and certain other additional real estate of said Holbrook not included in the first mortgage, which new note and mortgage were accepted and received by said administrators, in consideration of said Holbrook’s giving up further legal proceedings in the premises, in full satisfaction and discharge of the said notes, judgments thereon, and mortgage described in said bill. Thereupon said administrators executed and delivered a discharge of said notes, and the judgment obtained upon them; and in pursuance of an order then given by said administrators, said notes, judgments and executions were delivered by said Shelton to said Holbrook.
    On said 19th day of January, 1854, and at' the time of said compromise and settlement, neither said Holbrook, nor his overseer, had any notice that the title of said Miles to said notes and mortgage, or the validity of the assignment, by the plaintiff to said Miles, was questioned, and all their said acts and doings, relating to said notes and mortgage, were without fraud, in good faith, and with the full belief that said notes and mortgage were the property of said Miles’ estate, by virtue of said assignment of the plaintiff to Miles. At the time of said compromise, said administrators had notice as herein before stated; but said administra» tors fully believed that the claim, set up by the plaintiff to said notes and mortgage, was wholly groundless and untrue, and said administrators acted in good faith, and without fraud, believing that said notes and mortgage were the property of Miles’ estate, by virtue of said assignment, and that if the plaintiff had any claim on account of said notes and mortgage, it was against the estate of said Miles, and to be presented, with the other claims, to the commissioners upon said Miles’ estate.
    On the J5th day of April, 1854, said Holbrook paid said administrators the interest on said note of $1,250, and $550 of the principal.
    The assignment of said notes and mortgage, made by the plaintiff to said Miles, on the 27th day of August, 1853, was intended to transfer the legal title, and to cause it to be understood and believed by the said Holbrook, and the creditors of the plaintiff, that said Miles was the owner of the same.
    Said Miles never paid to the plaintiff any consideration for said notes and mortgage. And said assignment and certificate, before mentioned, were executed upon the secret understanding and agreement between the plaintiff and Miles, that the proceeds of said notes, when collected, were to belong to the plaintiff.
    Upon these facts, the court ordered the plaintiff’s bill to be dismissed. The defendant, by motion in error, then brought the record before this court for revision.

      Baldwin and Clark in support of the motion.
    1. The plaintiff acquired, by his mortgage, the legal title to the premises sought to be foreclosed ; and yet continues to hold it. It was never conveyed to Clark Miles. Neither the legal, nor the equitable title to the mortgage debt passed by the assignment to Miles. The notes were not negotiable. Miles paid no consideration for the assignment, and gave to the plaintiff a written declaration of trust.

      2. The power of attorney to Miles, not being coupled with any interest, was revocable, while it remained unexecuted, and was revoked by his death. His administrators had neither a legal, nor equitable interest, nor any power to interfere with the rights of the plaintiff. It was their duty to deliver up the papers, or direct Shelton to do it, when required by him. Though the plaintiff had intended to transfer the legal, not the beneficial, interest to Miles, he did not in fact transfer it. And Miles, who had paid nothing, and done nothing, had no equitable right to call for it. Miles’ administrators were notified, before any act done by them, that the plaintiff remained the legal and equitable owner of the notes. The papers were not left by the plaintiff voluntarily under their control. The re-delivery of them was demanded and refused. They had no authority, legally or ostensibly, to act in behalf of the plaintiff, or to discharge the notes in any character. They never undertook to act in his name, but in their own behalf as owners, in which character they had not a shadow of interest, legal or equitable.
    3. Although at the time of the compromise Holbrook had no notice that Miles’ title was questioned, he did not trust to their discharge, or to their possession of the notes. He took an order on Shelton and an indemnity. He was, therefore, put upon inquiry. Had he inquired of Bassett, he would have known Miles’ administrators had no power to discharge, and no interest in the notes. They had neither apparent legal ownership, nor the actual custody of the papers. Even a purchaser, for a valuable consideration, would not, under such circumstances, be protected otherwise than by his covenant of indemnity. He purchased the mortgaged premises of the plaintiff for $1,465, with other property, and secured the purchase-money, by notes and mortgage. Full value was received for the notes, and no fraud is found by the committee. If there had been, and he had sought in equity to set aside the purchase, he must have re-conveyed
      the property to entitle himself to relief. But he has kept the property, and, at the time of the bringing of this bill, without the payment of a dollar of the purchase money.
    4. Holbrook’s note for $1,250 was wholly without consideration, and void, and given on his part by mistake, for want of due inquiry. The administrators knew, and concealed from Holbrook, the demand upon them by Bassett. It is not now pretended that they had any interest or power. Holbrook therefore incurred no liability to them by the note.
    5. The plaintiff has the legal title to the land mortgaged to him, and subsequently to Miles’ administrators, who were claiming an interest.
    The plaintiff’s title, which he still holds, had become absolute at law, before the transaction with Clark Miles.
    If Holbrook had been a purchaser, and had given his note for the purchase money, of property improperly sold by a trustee, the cestui que trust would always have power to reclaim it, until the actual payment of the purchase money. What he has paid, since the petition was brought, was paid with full notice of our rights.
    6. The transaction with Miles’ administrators did not prevent his setting up a defence before the committee, which he has done, and which has been found against him. Nor has he, in any respect, been led to change his position to his injury, by giving the note and mortgage to the administrators of Miles, which being without consideration, are void. So far as the record shows title, Miles’ administrators appear to have an interest under Holbrook in the equity of redemption.

      Blackman and H. B. Munson, against the motion,
    claimed that the plaintiff could take nothing by his bill.
    1. The assignment of the note and mortgage, by the plaintiff, is sufficient, in terms, to transfer in effect, both the legal and equitable title to the notes, and their security, and that such was the intent of the parties is shown from the terms of the instrument itself, and it is also found, as a fact, by the committee. 1 Sw. Dig., 434. Crosby v. Brownson, 2 Day, 425. Austin v. Burbank, 2 Day, 474. Lyon v. Summers, 7 Conn. R., 399.
    2. The secret understanding between Miles and Bassett, that the proceeds of said notes, when collected, were to be paid over to Bassett, does not alter the effect of the assignment, either in its legal, or equitable, bearing, upon this transfer, for the legal and equitable title in effect, would remain in Miles and his legal representatives, until re-assigned. Miles and his representatives would still have the exclusive right to collect the notes, and when collected they must account to Bassett. This was a voluntary arrangement, entered into by Bassett, and by it he must be bound. 2 Sw. Dig., 45-60. A court of equity would no"t cancel such an assignment, even if Holbrook had not been induced by it to change his position. For it was not only done voluntarily, but it was done to deceive Holbrook and the puhlic. 2 Sw. Dig., 19. And unless this assignment is cancelled, or its legal effect done away with, by the interposition of a court of equity, Bassett has no claim upon these notes, for the title will still remain in Miles and his representatives, where the assignment has left it.
    3. The compromise between the administrators and Holbrook was a valid one. The defendant, Holbrook, had a right to treat their claims as assets belonging to their administrators. Crosby v. Brownson, 2 Day, 425. And more especially, as the plaintiff had led him to believe, by this very assignment, that these notes were the absolute property of Miles he is estopped, by his own act and deed. Stowe et al. v. Wise, 7 Conn. R., 214. 1 Sw. Dig., 637. The considerations of this compromise were good. Holbrook, on his part, abandoned a defence which he had a right to make, and gave a mortgage of other property to secure the note for $1,250. The discharge was therefore valid. It is no answer to say that Holbrook had no defence in point of fact, because he supposed he had, and he had a right to try that question to the jury. Every compromise is based upon the concession of some right.
   Hinman, J.

The plaintiff claims to be in the condition of an ordinary mortgagee, seeking the aid of the court to extinguish the defendant’s outstanding equity of redemption in the mortgaged premises. And the question is, whether he can fairly stand upon this ground. Here, it is proper to remark, the question is not what rights he may have against the administrators of Clark Miles, or what right, under a proper application, he may have to Holbrook’s note of $1,250, and the mortgage given to the administrators to secure it. The bill is not adapted to any relief he may be entitled to, as the equitable owner of that note, and sets up no facts laying the foundation for any such relief—and such facts, as do appear in the report of the committee on that subject, appear only as part of the defendant’s case; as going to show that no relief can be granted to the plaintiff as mortgagee, under the deed of the thirteenth of June, 1853. Has he, then, any rights as such mortgagee ? The facts, which appear in the report of the committee, are very voluminous, and it is unnecessary to enter much into detail, in respect to them. It is sufficient to say, that the plaintiff procured the notes and mortgage described in the bill, under such circumstances as to render it quite possible, not to say probable, that a court of equity would have compelled him to take back the property, for which the notes were given, and to give up his securities therefor. But on an application, by the overseer of Holbrook, to cancel the purchase out of which the claim originated, he refused to do so, and commenced suits on two of his notes which had become due, and soon after made a sham transfer of his notes and mortgage to Miles, but under such circumstances as effectually to deceive Holbrook and his overseer, as well as his own counsel, and all others, to whom the transactions became known, by inducing them to believe that Miles had purchased the claims for a valuable consideration, and was, therefore the equitable owner of them. Under these circumstances, Miles died, and administrators were appointed on his estate, who, supposing the notes belonged to the estate, treated them as part of it, and though notified by Bassett that they belonged to him, yet for some reason, they did not believe it, and finally, in consequence of being threatened with proceedings to contest the validity of the notes, on the ground of fraud in procuring them, and of the incompetency of Holbrook, and to avoid litigation, the administrators made a compromise, and settlement with Holbrook, he acting by the advice of his overseer, under which the original notes were given up, and discharged, and, in consideration thereof, Holbrook executed his note for $1,250, and secured the same by a mortgage of the premises, described in the bill, together with certain other real estate not included in the first mortgage. Neither Holbrook, nor his overseer, had any knowledge that the title of Miles to the notes and mortgage, or that the validity of the assignment to him, was questioned by any one. But they both acted in the utmost good faith, in the belief that the notes belonged to Miles’ estate, by virtue of the assignment to him, and, as part of his estate, that his administrators had full authority to settle any disputed claim in respect to them.

These are but a few of the facts in the case, but they are, we think, sufficient, with such others as will incidentally be noticed hereafter, to show that as between the plaintiff and Holbrook, the plaintiff is estopped to deny the validity of his assignment to Clark Miles; and that the assignment operated, not merely as a power of attorney which was revoked by the death of Miles, but as a transfer of such an interest in the notes and mortgage, as on his death, was sufficient to enable Holbrook, who had no knowledge that the plaintiff claimed any interest in them, to make a valid compromise in respect to them with the administrators ; and as Holbrook has acted in good faith upon the title, which the conduct of the plaintiff induced him to believe the administrators had, he ought now to be protected in the rights, which he supposed he acquired under his compromise with them. No one would have questioned the validity of a settlement with Miles, before his death, whatever might have been the secret agreement between him and the plaintiff; and as one great object of the assignment was to induce Holbrook to believe that the beneficial interest in the notes was intended to be conveyed by it, and as such an interest would of course vest in administrators, on his death, and as the instrument itself was adapted to the transfer of such an interest, and was an improper instrument to be used as a mere power of attorney, we think that the plaintiff has no right to complain, so far as the rights of third persons, acquired under it, are concerned, because they have acted as he intended they should think they had a right to act. As between Miles and the plaintiff, the assignment may be admitted to be a mere power of attorney, which was revoked by the death of Miles, and, therefore, conferred upon his administrators no interest in the subject matter. But it was more than that upon its face, and was purposely made so in order to induce others to believe that the debt was absolutely assigned, so as to have become the property of the assignee. How then can the plaintiff be in a better condition than the owner of property who stands silently by, and and sees it sold to a bona fide purchaser, without giving any notice, or intimation, of his title 1 Yet nothing is better settled, than that such acquiescence will preclude the owner from afterward asserting his title.

But it is claimed that Holbrook has not been induced to change his position, in such manner as would operate to his injury, if the settlement is treated as void, because, it is said, he has not been deprived of any defence he might set up to the notes in the plaintiff’s hand. We do not think that this is the true test, to determine whether he would be injured by suffering the plaintiff to treat his assignment as a power of attorney merely. Holbrook has been induced to forego his right to bring a bill in equity to set aside the whole transaction with the plaintiff by which he became the purchaser of property he did not need, and which the committee say, it was improvident in him to purchase; and although there may not enough appear in the present case to show that he could have succeeded in such an application, it is still quite obvious from the finding, that he had, at least a very plausible ground for making such an application. He has also been induced to mortgage other property, not conveyed to him by the plaintiff, to secure his note to the administrators of Miles. And in addition, he has, by a fair and equitable compromise and settlement of the controversy, avoided the necessity of an expensive and troublesome litigation. It appears to us, therefore, that it may fairly be said that he would be materially injured, by suffering the plaintiff now to treat his assignment as a mere power of attorney.

For these reasons, we think that the plaintiff is not entitled to a foreclosure, under his mortgage of the thirteenth of June, 1853, and as this is all that his bill enables him to ask, the superior court was correct in dismissing it, and there is no error in the judgment complained of.

In this opinion the other judges, Storrs and Ellsworth, concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Ellsworth, J. Hinman, J.

license: Public Domain

text:
    The Naugatuck Railroad Company vs. The Waterbury Button Company.
    The Act of 1S52, authorizing the granting of nonsuits in civil actions, where the plaintiff, who has produced his evidence and rested his cause, shall have failed to make out a prima facie case, is not repugnant to the constitution of this state, as impairing the right of trial by jury.
    It being provided, in the charter, that a railroad corporation might “make any lawful contract with any other railroad corporation in relation to the business of such roadit was held, that the object of this permission was to enable such road to contract for the common use of so much of another road already constructed as lay within the limits of the road so chartered.
    In an action on the case, founded on the legal liability of a railroad corporation as common carriers, to recover for the loss of goods directed to N» Y. a place situated beyond the terminus of such road*, the declaration alleged that the defendants were common carriers to N. Y. On the trial, it was admitted that the goods had been transported safely over the defendants’ road, and deposited on board a steamboat for N, Y. where they were burnt. The plaintiff gave in evidence the defendants’ charter, containing the permission aforesaid, also an advertisement, published in a newspaper, stating that freight would be billed by the defendants to N. Y., and evidence that the plaintiffs had been in the practice of sending freight to N. Y. over the defendants’ road from the time it went into operation, and that the defendants had made no demands of the plaintiffs, for the freight of said goods, and then rested their cause. The defendants thereupon moved for a nonsuit which was granted. Held, that such nonsuit ought not to be set aside. [One judge dissenting.]
    This was an action on the case, founded on the liability of the defendants as common carriers.
    The declaration alleged that “ the defendants were the owners of a certain railroad commonly known as the Naugatuck railroad, constructed from the town of Winchester in Litchfield county, through the towns of Torrington and Plymouth, in the county last aforesaid, and the towns of Waterbury, Naugatuck, Seymour and Derby to Milford, in the county of New Haven, and were also the owners of certain cars and carriages and locomotive steam-engines to draw the same, used thereon, and which said cars, carriages and locomotive steam-engines to draw the same as aforesaid, were then and ever since have been used and employed, by the defendants, in carrying and transporting goods, wares and merchandize as common carriers for hire, freight and reward, paid to the defendants therefor, along, over and upon their said railroad from the town of Waterbury aforesaid, through the towns of Naugatuck, Seymour and Derby, to the town of Milford aforesaid,and thence upon other railways and steamboats and vessels to the city of New York, in the state of New York, and to the city of Boston in the state of Massachusetts, and that on the 20th day of July, 1852, at the town of Waterbury aforesaid, the plaintiffs caused to be offered and delivered to the defendants, to wit, as common carriers, and the defendants then and there received as such carriers, two certain boxes containing buttons of the plaintiffs of great value, to wit, the value of three hundred dollars, to be safely and securely carried and conveyed for the plaintiff by the defendants from Waterbury aforesaid, upon their said railroad and other railways and steamboats and vessels, and to be carried by the defendants to be left at a certain other place, to wit, at the city of Boston in the state» of Massachusetts; also three certain other boxes containing buttons of the plaintiffs, of the value of five hundred dollars, to be safely and securely carried and conveyed for the plaintiffs by the defendants from Waterbury aforesaid, upon their said railroad and other railways and steamboats and vessels, and to be caused by the defendants to be left at the city of New York in the state of New York, for certain hire and reward, to be therefor paid by the plaintiffs to the defendants. And although, by reason thereof, the defendants ought carefully and safely to have convey^, or caused to be conveyed, said two boxes of buttons upon their said railroad and other railways, steamboats and vessels to the city of Boston aforesaid, and said three boxes of buttons upon their said railroad and other railways, steamboats and vessels to the city of New York aforesaid,” &c.
    The declaration embraced other counts, but the variations from the foregoing were not material.

      The defendants pleaded the general issue, and the cause was tried at the term of the superior court, holden in Dec., 1855.
    It was admitted on the trial, that the plaintiffs were a corporation, duly organized as described in the declaration, and that on the 21st day of July, 1852, the plaintiffs delivered to the defendants at their station, in the town of Waterbury, for transportation, five boxes, containing buttons of the value and 'marked and directed as follows, viz:
    marked. value.
    1 Box, “ Geo. H. Chapman, Jr. & Co., Boston,” $98.32
    1 “ D. J. Foster & Co., Boston,” 103.60
    2 “ 'Burnham, Plumb & Co., N. York,” 248.51
    1 “ Peet & Wakeman, N. York,” 162.15
    and in addition to the aforesaid marks, each box was marked “ Care of Saxton & Webb, New York.” .
    Said boxes were delivered by the plaintiffs and received by the defendants, without anything being said, or any direction given except as indicated by the marks and directions upon them. The defendants on the same day placed said boxes in their rail cars, and transported the same over their own railroad, and the New York and New Haven railroad, to the city of Bridgeport, where they took the boxes from the cars and placed them on board a steamboat, called the “Alice,” and on the night of the same day, said steamboat, with said boxes, was destroyed by fire, in the harbor of Bridgeport.
    It was also admitted that Philo Hurd was the superintendent of the Naugatuck railroad company, during the year 1852.
    The plaintiffs offered in evidence the charter of the Naugatuck railroad company, granted in May 1845, which contained the following provision. “ And for the purpose of constructing said railroad on way, the said company is hereby authorized to lay out their road not exceeding six rods wide, through the whole length; and for the purposes of cuttings and embankments, and for the purpose of necessary turnouts, and for obtaining stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road; with permission also to make any lawful contract with any other railroad corporation, in relation to the business of said company.”
    The plaintiffs also offered, in evidence, the following advertisement, published by the Waterbury American, a weekly newspaper, printed and published in the town of Waterbury, in New Haven county, commencing in April, 1852, and regularly continued until after the 21st day of July, 1852.

      “ Ncmgatuck Railroad, Summer Arrangement, Commencing April _26, 1852. Five Trains to and from Waterbury, daily.

      Trains out of Bridgeport.—First passenger train will leave Bridgeport for Winsted, at 10.35 A. M., or on arrival of the 8 A. M. Express train from New York, connecting at junction with the 10.20 A. M. train from New Haven.
    Second passenger train will leave Bridgeport for Winsted at 6.05 P. M., or on the arrival of the 3.30 P. M. Express train from New York, connecting at the junction with the 5.50 P. M. train from New Haven.
    First freight train, with passenger car attached, will leave Bridgeport for Winsted at 5.20 A. M.
    Second freight train will leave Bridgeport for Waterbury at 8 A. M. connecting at Stratford with 7.00 A. M. train from New Haven.
    Third freight train will leave Bridgeport for Waterbury, at 4.25 P. M.

      Trains into Bridgeport.—First passenger train will leave Waterbury at 6.00 A. M., connecting at the junction with a train to New Haven, and at Bridgeport with the 7.38 A. M. train to New York.
    Second passenger train will leave Winsted at 7.00 A. M., connecting at the junction with a train to New Haven, and at Bridgeport with the 10.15 A. M. train to New York.

      Third passenger train, will leave Winsted at 2 P. M., connecting at the junction with the train to New Haven, and at Bridgeport with the 5.02 P. M. train to New York.
    First freight train will leave Waterbury at 1 P. M.
    Second freight train will leave Winsted at 12.50 P. M.

      *,* A passenger car will be attached to each freight train.
    Aline of stages from Woodbury, Southbury, Southfordand Oxford, will connect at Seymour, (Humphreysville) with the 9 A. M. train down, and on Mondays, Wednesdays and Fridays with the 4 P. M. train. Returning, will leave every day on the arrival of the 6.05 P. M. train from Bridgeport, and on Tuesdays, Thursdays and Saturdays the 10.35 A. M. train from Bridgeport.
    McNeil’s stage from Watertown, will connect at Waterbury every day with the 8.30 A. M. train down, returning on the arrival of the 10.35 A. M. train from Bridgeport, and on Tuesdays, Thursdays and Saturdays with the 3.35 P. M. train down, returning on the arrival of the 5.05 P. M. train from Bridgeport.
    A stage from Terryville will connect at Plymouth with the 8 A. M. train down, returning on the arrival of the 10.35 A. M. train from Bridgeport.
    Fenn’s stage from Litchfield will connect at Litchfield station with the passenger trains each way.
    Freight will be way-billed as usual, from each station, for New York, New Haven and Bridgeport. The facilities for transporting freight having been greatly increased, shippers may rest assured that their goods will be taken through to their destination with dispatch.
    Philo Hurd, SupH.”

    Bridgeport, April 20,1852.
    It was also proved and admitted by the defendants that handbills, containing a copy of said advertisements, were published and distributed by the defendants, along the line of their road, at the said time said advertisement was published in the said newspaper.
    The plaintiffs also introduced as a witness, Henry H. Hayden, who testified as follows:
    “ That he was the President and acting manager of the business, and affairs, of the Waterbury Button Company, on the 21st day of July, 1852, and had been so for two or three years before. The plaintiffs had been in the habit of sending their goods to New York by the Naugatuck railroad ever since the road went into operation. The Naugatuck railroad intersects the New York and New Haven Road at the junction in the town of Milford, and from thence runs on the New York and New Haven railroad tracks to the city of Bridgeport, and the New York and New Haven railroad extends from New Haven through the city of Bridgeport, to the city of New York. The freight on all the plaintiffs’ goods, sent to New York, was paid by the plaintiffs’ agents, in New York, on their receipt there, and by said agents charged over to the plaintiffs, and paid by the plaintiffs to said agents in their settlements every six months, and the plaintiffs, by the arrangement and understanding with their agents, were to deliver their goods in New York. The witness had no knowledge that the plaintiffs’ goods, directed to New York, ever went by steamboat, but supposed they always went by railroad over the defendants’ road and the New York and New Haven railroads. The defendants were engaged in the business of transporting freight and goods by their said railroad, and have received freight from the plaintiffs, and other parties in Waterbury, for transportation, directed to New York in the same manner that said boxes were received, for a long time prior to said loss. The defendants never gave to the plaintiffs any notice of the way in which their goods were sent to New, York, except such notice as was given by said advertisement, which it was the impression of the witness he had read. The plaintiffs entrusted these boxes to the defendants, supposing them to be responsible, and that they would fulfill what they undertook. Saxton & Webb were forwarders of goods across the city of New York, and goods were sent to them from all points. He did not know any thing about the way in which the defendants made out their way bills, and had no recollection of ever seeing any steamboat freight bills. The defendants had never made any demand on the plaintiffs for the freight of said five boxes, shipped on the 21st July, 1852, and lost.
    The plaintiffs also introduced a witness, Charles M. Mitchell, who testified as follows:
    “ That he was the secretary of the Waterbury Button Company on the 21st day of July, 1852, and had been such prior to that time, that he had no knowledge that their goods went to New York, except by railroad, and did not know there was any route to New York by steamboat. He did not know, but supposed that the defendants’ railroad terminated at Stratford or Bridgeport, and was not aware that any steamboat ran from Bridgeport. The defendants had never made any demand of the plaintiffs for the freight of said boxes, lost. He could not describe a way-bill, but supposed it something similar to a bill of lading; that it was a bill, which goes with the goods, showing where they come from, and are to go.”
    The plaintiffs also offered, in evidence, a letter written by N. H. Perry, the defendants’ agent at Waterbury, on the 22d July, 1852, directed to and received by the plaintiffs, which was as follows:
    “ Gent.—The goods shipped by you on the 21st inst., were destroyed by fire this morning on board steamer “ Alice.”
    Respectfully,
    July 22d. N. H. Pebhy.”
    And thereupon the plaintiffs rested their cause.
    And the defendants thereupon, moved for judgment as in case of nonsuit, for the reason that the plaintiffs had failed to make out a. prima facie case, which motion was granted by the court.
    The plaintiffs thereupon filed a motion to set aside said nonsuit, which the court refused to grant. The plaintiffs then, by motion in error, brought the case before this court for revision.

      N. J. 8f T. S. Buell, in support of the motion.
    I. The court erred in granting the nonsuit, and refusing to set aside the same, because, the issue having been closed to the jury, and the plaintiff having introduced his evidence to the jury under that issue, it was not competent for the court to grant a nonsuit, and thereby deprive the plaintiff of the right of trial by jury. 1. The act of 1852, authorizing the court to grant nonsuits, is unconstitutional and void, because it conflicts with the provision of Art. 1, § 21, of the constitution, which declares that “ the right of trial by jury shall remain inviolate.” Beers v. Beers, 4 Conn. R., 535. 2. The granting of nonsuits by the court, in trials to the jury, was unknown in Connecticut at the time of the adoption of the constitution, and not authorized by the common law of the state, or the provisions of any statute, or any practice, or custom. 3. The plaintiffs had a right to have the jury pass upon the evidence submitted to them, under such instructions as the court might deem proper to submit to them, upon the law and the evidence; and in case their verdict was not approved by the court, to return them to a second and third consideration, and no more. 1 Conn. R., 472.
    II. The plaintiffs, by their evidence, established and made out a prima facie case, and it should have been submitted to the jury. 1. The defendants, by their charter, had power to make contracts with the New York and New Haven railroad company, (in relation to their business, one branch of which was the transportation of freight,) for the transportation of freight to New York, and to form a joint arrangement with them to that effect. Private Acts, 1845, p. 88. 2. The advertisement of the defendants was prima facie evidence, that as to three points, New York, New Haven and Bridgeport, they had made arrangements with the New York and New Haven road to transport freight to those points ; and the language is so plain and explicit, as to import an express undertaking and assurance, that all goods for those points only, delivered to them for transportation, would be forwarded to their destination by them. 3. In connection with the chartered powers of the defendants, and their intersection with, and use of a part of the New York and New Haven railroad, their advertisements and handbills, the reception of the goods by the defendants, directed to one of the points named in their notice, the freight to be paid at the point of destination, nothing said or intimated by the defendants contrary to the stipulations of their notice, and no knowledge on the part of the plaintiffs to the contrary, was prima facie evidence of an undertaking to carry to New York. 8 M. & W. R., 421. 3 E. L. & E. R., 497. 18 E. L. & E. R., 553. Ang. on Car. § 95. 1 Pars, on Cont., 687. 4. The omission of the defendants to ask for, or claim pay, for the transportations of the goods from Waterbury to Bridgeport, was a fact furnishing strong evidence, and from which the jury might have fairly inferred that the defendants’, contract was to carry to New York; and that the defendants knew, and had acted upon the idea, that they were not entitled to compensation, unless they fulfilled their contract. 5. If the defendants had not the power, by their charter, to contract to carry to New York, yet if they have held themselves out to the world as having that authority, and thereby induced others to act upon that belief, they are estopped from averring the contrary. 1 Pars, on Con., 120. Noyes v. Rutland and Burlington R. R. Co., 27 Verm., 110.

      Dutton and Munson, and Blackman, against the motion.
    There being no promise or undertaking of the defendants alleged, or proved, there was no evidence showing a prima

      facie liability of the defendants, as common carriers, from Waterbury to New York. If the marks on the goods tended to show this, it would never be safe for a common carrier to receive an article, labelled beyond the line of his business.
    1. It is to be observed that the defendants were not paid for transportation for the entire distance the goods were to be transported. Being common carriers, the defendants were bound to carry them towards their destination, so far, as they had represented themselves as common carriers. It is admitted that the goods in question were properly transported to the southern terminus of the defendants’ road, and safely deposited on board the steamer for New York, on which they were burned. Where a carrier receives goods marked for a particular destination, beyond the route for which he professes to carry, and beyond the terminus of his road, he is bound only, in the absence of any special agreement, to transmit and deliver such goods to, and at the terminus of his road, and is not liable for losses beyond his own line. Jennison v. Camden & Amboy R. R. & T. Co., Law Reg., vol. 4, p. 224. Vansantvoord v. St. John, 6 Hill, N. Y., 157. Farm. & Mech. Bank v. Champ. Tr. Co., 18 Verm., 140. 23 Verm., 209. Nutting v. Conn. R. R. Co., 1 Gray, 502. Hood v. New York & New Haven R. R. Co., 22 Conn. R., 1, and 502. No special contract is alleged, and no evidence was offered to prove such contract. The claim of the plaintiffs is based only upon delivery of the goods. It is obvious from the marks upon the boxes, that the plaintiffs did not intend to make the defendants their carriers from Waterbury to Boston, for Saxton & Webb were to take charge of them in New York. There is nothing from which to draw an inference, except the mark of the place of destination.
    2. The advertisement of the defendants does not change the nature of the contract. In order to give this its true construction, it must all be considered.
    3. The defendants could not make the contract, alleged in the declaration. Hood v. N. Y. & N. H. R. R. Co., 22 Conn, R., 502. But it is unnecessary to call on the court to decide on this claim. The main question is, does the evidence reported warrant the conclusion that such a contract was made ?
    The court would set aside a verdict for the plaintiff, as a verdict against the weight of evidence. The Thames Steamboat Co. v. The Housatonic Railroad Co., 24 Conn. R., 40.
   Ellsworth, J.

There is no question, in our view of the constitution, that the legislature could properly authorize a court to nonsuit the plaintiff upon the defendants’ motion. The clause in the constitution, which provides that the trial by jury shall remain inviolate, presents no obstacle to this legislation. Its object is simply to preserve a jury trial in questions of fact, and it does not relate to questions of law with the court. The jury have nothing to do with the relevancy and materiality of evidence, or with inferences of law from facts fully established or not.' denied. If all the facts, claimed to be proved by the evidence of the plaintiff, cannot, if true, make a prima facie case for,him, it would be worse than idle to proceed further with the trial; since no verdict • could be rendered in his favor, which c.ould be retained. It is no uncommon thing to raise the question of the sufficiency of evidence upon demurrer to evidence, wherever the court will give its consent, as the readiest way to end the trial, and this is not a violation of the constitution. The trial by jury would indeed^present a singular spectacle, if because an issue in fact is joined to the jury, whatever evidence is offered by the plaintiff, to prove his case, must be received and considered, lest the province of the jury should be invaded, or if the fact, claimed to be proved, is admitted, its materiality or sufficiency may not be decided by the court. If the court come to a wrong decision, there may be an appeal to the supreme court to correct the error, and beyond this, there is no relief known to the law. The statute, as well as the common law, requires the plaintiff to introduce evidence which fairly tends to establish a prima facie case, in his favor, and if he has not done this, as we think he had not, in this instance, he sustains no injury, by the order for a nonsuit. Harris v. Thampson, 24 E. L. & Eq., 380. Besides, this mode of trying a question of law, had always been practised at the common law, and was familiarly known to the men who framed our constitution; and it is not to be believed, thatthey meant, by this clause in the constitution, to restrict the courts and the legislature itself, in relation to this ancient practice.

The more important question in the case is, did the plaintiffs make a case, which should have been submitted to the jury ? A majority of the court think they did not. This declaration is in the form of case for default of duty as common carriers from Winchester, or Waterbury, to New' York or Boston, or both, varying somewhat in the different counts in the declaration, and is doubtless the only form for obtaining relief, which could have been adopted, with any hope of success. The termini of the defendant’s duties as set forth, are quite important to the issue, not only as descriptive of the evidence to be adduced on the trial, but as to the place and circumstances, where the loss of the property happened, and if the defendants are not common carriers to Boston or New York, as described, they are not liable for any default on this declaration. 2 Greenl. Ev., § 209. 1 Bing., 162. 2 B. & P., 54. 12 East., 89. A common carrier is one who holds himself out to the public, to carry persons or freight for hire. If this is so, we of necessity look to see from the evidence, or facts detailed in the record, what there is which conduces to prove that the defendants held themselves out to the public as common carriers to New York, or Boston, or to any place beyond their own road. If the mark, on boxes of freight, “ Boston” or “ New York”, proves this fact, then if they had been marked Philadelphia, New Orleans, or London, this would have proved they were common carriers to those places. The defendants, too, have a known and public charter and character as carriers over their own road, from one terminus to the other, and it is quite unreasonable, and absurd, to say that by using their own road in the usual and appropriate manner of using it, they hold themselves out to the world as common carriers to any and every point and place, to which their freight happens to be marked, however that place is to be reached, by railroads, sail boats, freight wagons, pack horses or footmen. In the ordinary course of business, freight, prepared for transportation, must be so marked arid forwarded,' and every sort of common carrier takes it in his public capacity, in that exact condition and must so take it if at all. The defendants, we conceive, were obliged to receive the boxes in question just as they were marked, and to carry them to the southern terminus of their road, and thence forward them according to the course of business; and their being marked to go to a place beyond Bridgeport has nothing to do with the defendants’ character or duty, except as just expressed. Ifpersonswho send freight, expect or desire more than this from common carriers, let them exact an agreement from the carrier,to whom they first deliver the property, that he will be responsible, as the common carrier throughout the entire transit. We believe that business men look at this matter in the light we have expressed, and that it is not supposed that a mere reception of goods implies that the receiver of them, whose known and customary business is to carry to a given place, promises to carry them beyond it. We forbear to say more, because in the late case of Elmore, against these defendants, 23 Conn. R., 474, we went over this whole ground and came to the conclusion that the defendants were not liable, as already expressed. The same doctrine as held in Nutting v. Conn. R. R. 1 Gray., 502. Vansantvoord v. St. John, 6 Hill, 157. F. & M. Bank v. Champ. Tr. Co., 18 Verm., 140, 23 Verm., 209. Hood v. N. Y. & N.H. R. R. Co., 22 Conn. R., 1.

We need hardly remark, that we see no evidence of a usage or practice, by the defendants, or of any promise, or undertaking by them, (were that important in this suit,) to carry persons, or freight, beyond the line of their own road; nor is it pretended that they have ever made any arrangement with any other railroads to carry their freight for them, to New York or Boston, or elsewhere. These several companies run over their own road, and that is all that is pretended to exist in fact.

The other piece of evidence, supposed to make in favor of the plaintiff, is an advertisement in the Waterbury American and other papers, and set up in certain public places. We commented upon this testimony at length in the case of Elmore against the present defendants, when we said we attached but little or no importance to its import, and we still entertain the same views; that it furnishes no proof, that the defendants were carriers to New York, or that they undertook by special promise, to become such, even if a special promise could do it. The present argument has served to strengthen those convictions. It is even now said on the part of the defendants, that this advertisement, instead of making a case for the plaintiffs, makes against them. It begins, “ Naugatuck Railroad,—summer arrangement,—five trains to and from Waterburyit then goes on to say, what passenger trains, and what freight trains leave Bridgeport to go north to Winsted, and what trains go south from Winsted to Bridgeport. Not a word is said about their trains running beyond Bridgeport. Nor do I believe that the plaintiffs, or any one else, from a mere perusal of this notice or advertisement, inferred anything more. What it says in allusion to the N. Y. & N. H. road, is that the defendants’ trains will, at Bridgeport and Milford, meet the trains of that company. In the former case, we likewise commented upon that part of the advertisement, which speaks of the freight-bill; we will not now repeat what we then said, but refer to that as our present opinion, viz. that no argument can be derived from it, in behalf of the plaintiff,

Another question of general importance is raised by the defendants’ counsel, which is not altogether unworthy of notice ; we mean the power of the defendants, under their charter, to become common carriers to New York, Boston, &c. We do not mean definitively to decidethis question, but a majority of the court are not satisfied that the Naugatuck E. E. Co., can become common carriers beyond their own road to New York, or Boston, or Philadelphia, or New Orleans, or London. Such extensive authority would not seem to be contained within the express powers or objects of the charter, or to be fairly implied as within the exercise and enjoyment of any powers which are given. If this be so, where then shall we find the power ? If indeed there be no limits in the charter, then may the defendants become common carriers, universally, and without limit, certainly of that freight which has had any part of its transit over the defendant’s road. But can this be law ? The only clause, which has been spoken of as authorizing it to be done, is a clause, directly following the provision which enables the defendants to obtain their right of way, and is in these words, “ with permission also to make any lawful contract with any other railroad corporation in relation to the business of said company.” We do not understand this as authorizing the defendants to extend their road to Boston or New York or elsewhere, either bya buying, leasing, or using other roads under their respective charters1, or under the defendants’ charter ; certainly not, in any such sense as being themselves the common carriers on those roads, possessing, and controlling the freight as their own. We think permission was given to enable the defendants to contract with the N. Y. & N. H. road for the common use of that portion of their road which lies within the charter bounds of the Naugatuck road, and to enter into an arrangement With the N. Y. & N. H. road, to run the same car entirely through, but each company, running for itself over its own road, and at its own risk and expense, as much so as if no arrangement had been made. It is no uncommon thing for the same cars to pass continuously over the entire road, from New York, to Boston, but the several companies own, and use, each one its own road as absolutely as if no such arrangement had been made, and it is idle to pretend that a person, who takes his seat in one of these cars, sustains a different relation to the company, over whose road he passes, from what he would, had he changed his car from road to road. Thompson v. Worcester & Boston Railroad, 9 Cush., 30. All railroad companies, like individual carriers, may at the end of their own route forward the freight which has been entrusted to them, but this power does not grow out of any specific provision in the charter; it is a mere incident depending on the necessity of the case, or the general course of business.

It has been claimed, that if the defendants are common carriers to Bridgeport, and no further, they are even then liable, in this instance, since it does not appear that the Alice, which was burnt, with the plaintiffs* goods on board, in the harbor, was a suitable vessel to receive the goods, to be transported to New York. It is obvious that the motion was not drawn upon the idea of any such question, for none such was made, or alluded to below, as we understand from the judge who presided, nor, as we have a right to presume, from the fact that it was not made, will it be. of any benefit to the plaintiff, if we grant a new trial; hence, we do not feel bound to grant a new trial on that account, and besides, if the defendants are not common carriers as described in the declaration, they cannot recover, in this suit.

In this opinion, Storrs, J. concurred.

Hinman, J.

said he felt bound to yield to the opinion of the court in the case of Hood v. The New York & New Haven Railroad Company, 22 Conn. R., 502, and Elmore v. The Naugatuck Railroad Company, 23 Conn. R., 457, and, on the authority of those cases, did not dissent from the foregoing opinion, although, but for those eases, he should have felt bound so to dissent.

A new trial not granted.


author: Storrs, J.

text:
    Clark vs. Gaylord and another.
    A bailment of personal property constitutes a valid consideration for a promise to return it.
    In an action upon a receipt promising to re-deliver, on demand, property attached by the plaintiff as an officer, it is no excuse for a non-delivery that the title to such property was not in the defendant named in the writ, upon which it was attached.
    This was an action by an officer against Ransom Gaylord and Lawrence Merriam, claiming damages of the defendants, for their refusal to surrender property, which had been taken by three writs of attachment against the said Gaylord, and delivered to the defendants upon their written receipt, promising to re-deliver the same to him, or some other proper officer, on demand, and acknowledging themselves estopped from denying that said property had been attached by the plaintiff, and that the defendants had received the same from him.
    The cause was tried on the general issue at New Haven, at a term holden in October, 1855.
    It was proved that on the 7th day of July, 1852, the property described in the declaration was attached by the plaintiff, as a constable of the town of Meriden, in three suits against the defendant, Gaylord, as the property of said Gay-lord, and was taken into his possession by the plaintiff in ■ due form of law. On the 23d day of July, 1852, said Clark delivered all said property into the possession of said Gay-lord and Merriam, and in consideration thereof, on the same day they executed and delivered to the plaintiff the following receipt:
    “ Received at Meriden, this 23d day of July, A. D. 1852, of Jared B. Clark,- of the town of Meriden, New Haven county, and state of Connecticut, he being a constable of said town, the property described in the annexed schedule, which was attached by said officer, as the property of Ransom Gaylord, of said town, in said county, on several writs of attachment, as follows: one in favor of Abner C. Wetmore of said Meriden, against the said Ransom Gaylord; one in favor of O. H. Platt, of said Meriden, against said Gaylord; and one in favor of Collins & Co., a co-partnership firm, located and doing business in said Meriden, composed of Seymour W. Baldwin, Aaron L. Collins, and Charles H. Collins, all of said Meriden, against said Gaylord ; said writ in favor of Abner C. Wetmore is dated the 6th day of July, A. D. 1852, and is returnable to the New Haven county court, for New Haven county, to be held by adjournment, on the last Tuesday in August, A. D. 1852, commanding said officer to attach the goods, or estate of said defendant, to the value of five hundred dollars, as by said writ appears.
    Said writ, in favor of O. H. Platt, is dated the 7th day of July, A. D. 1852, and returnable before James S. Brooks, Esq., a justice of the peace for New Haven county, in said town of Meriden, on Saturday, the 31st day of July, A. D. 1852, at nine o’clock in the forenoon, commanding said officer to attach to the value of seventy dollars, the goods or estate of Ransom Gaylord, aforesaid, as by said writ appears.
    Said writ, in favor of Collins & Co., is dated the 7th day of July, A. D. 1852, and returnable to the county court for New Haven county, at the November term, A. D. 1852, of said court, commanding said officer to attach to the value of five hundred dollars the goods or estate of said defendant, as by said writ appears.
    Which said property we hereby, for a valuable consideration, agree and promise, jointly and severally, to re-deliver in good order to said officer, or any other officer legally authorized to receive the same, on demand; or in default thereof to pay the sum of two hundred and ninety-three dollars; or if demand be not made before judgment is rendered, the amount of damages and costs, which shall be recovered by the plaintiffs respectively, in said cases, if the same shall fall short of that sum.
    It being understood that we are hereby estopped from denying that the property, herein described, has been attached by said Jared B. Clark, and that we have received the same from him.”
    Said Wetmore recovered judgment against Gaylord, for the sum of $126.24 debt, and of $14.37 costs of suit; and said Platt recovered judgment in the suit in his favor, before said justice, for the sum of $20.75 debt, and $3.40 costs, and execution issued upon both of said judgments, in due form of law, and on the 23d day of December, 1852, were placed in the hands of said Clark, as said constable, to serve and return according to law. Said Clark, on the same day, made demand of the defendants to re-deliver said property to him, to be taken upon said executions and disposed of according to law, to pay and satisfy the same, which they refused to do. Said executions were never satisfied, and said judgments both remained in full force and virtue.
    It was also proved that the property described in the declaration at the time of Clark’s attachment, was not the property of Gaylord, but had been, by him, before said attachment, mortgaged to one Charles Parker, and'the possession thereof had been delivered to said Parker, and that Gaylord had also assigned all said property, subject to said mortgage, to a trustee in trust for the equal benefit of all his creditors.
    The mortgagee had brought a suit against Clark, and Wetmore, for the property attached, and a judgment was rendered therein in favor of the mortgagee for the full value of the property, which judgment Clark and Wetmore had paid to the mortgagee.
    By agreement of the parties, the question, as to what judgment should be rendered upon the facts aforesaid, was reserved for the advice of this court.

      Doolittle and Platt for the plaintiff.
    1. The property, referred to in the receipt, was attached by the plaintiff in a suit against Ransom Gaylord, who, with the other defendant is estopped, by the receipt itself, from denying that it was the property of Gaylord. 13 Pick, 139. 27 Maine, 345. 15 Peck, 40.
    2. If the defendants are not estopped by the receipt, then if they may show that this was the property of another, they must show that they are liable to that owner, or that they have returned the property to him. Non constat, but that at the time of the attachment the mortgagees would be paid, and the creditors of the assigned estate would be paid out of other property than this that was attached. The assignee and the mortgagees have been paid the value of their interest in the property, by judgment recovered, paid, and satisfied against the plaintiff. They are now the owners of the property in question, and it is no defence for the defendants to say that Gaylord was not the owner at the time of the attachment. For if he was not, the plaintiff has acquired the rights of the owner, and in an action upon the receipt for not re-delivering the property, on demand, in default of such delivery the defendant must pay the damages which are the value set upon the same in the receipt. It is conceded that if the plaintiff is entitled to recover, damages shall be for the full amount. 11 Verm., 230.
    3. If the plaintiff has delivered property upon a contract, to be re-delivered upon demand, we may sue upon the contract, or bring an action of trover. 4 Cush., 414. 13 N. Hamp., 230. 24 Verm., 23. 13 Conn. R., 507. The lien of the plaintiff is not a mere lien of attachment, but an absolute lien, like that of the owner.

      Wright and Lomsbury for the defendants.
    1. The officer cannot recover upon a receipt, unless he is answerable, in his capacity as officer, to the plaintiff or defendant, in the original suit upon which the property receipted was attached. Parsons v. Philips, 1 Root, 482. Phelps v. Landon, 2 Day, 370. Stevens v. Curtiss, 3 Conn. R., 260. Carr v. Farley, 3 Fair., 328. Savage v. Mason, 1 App., 49. Jones v. Gilbert, 13 Conn. R., 519. Leonard v. Bryant, 13 Mass., 234. Tyler v. Almon, 12 Mass., 168. Fuller v. Holden, 4 Mass., 498. 1 Sw. Dig., 590. Clark is not liable to Gaylord, because the goods did not belong to him. For the same reason he is not liable to Wetmore, who can have no interest, except in the goods of Gaylord. Notwithstanding a joint judgment, Clark must stand upon his title, alone derived by the attachment, in this form of action; and not upon a joint title, cast upon him and Wetmore, by operation of law. Proof of joint title with Wetmore is fatal to Clark’s action upon this receipt. As the joint title was cast upon Clark and Wetmore after the commencement of this suit, it cannot affect the decision in this case.
    2. If the plaintiff recovers upon his receipt, the rule of damages is contained in the receipt, viz.: the amount of Wetmore’s and Platt’s judgments. If he recovers upon the joint title cast upon him by the judgment in Parker’s favor, the rule of damages would be the amount of Parker’s judgment and the recovery would be independent of the receipt. But he cannot recover upon the receipt, because he js not answerable and therefore cannot recover at all in this form of action.
   Storrs, J.

A delivery, or bailment, of personal property by one person to another, constitutes a valid consideration for a promise by the latter to return it; and in this case the placing of the property in question, by the plaintiff, in the hands of the defendant, was not the less a good consideration for the promise to re-deliver it to the former, because it did not belong to the .person, as whose property it was attached by the plaintiff. The writs in the plaintiff’s hands were no justification for his attaching the property, as against the owners of it, who were not defendants in those suits, and as to such owner, therefore, the plaintiff was a tort-feasor for taking it, and became liable tó him to return it, or for the value of it; and the promise of the defendants to return it to the plaintiff was binding on the former, by reason of the accountability of the latter to the owner of the property, and on a principle similar to that by which, where an officer has attached the property of the defendants in a suit, a promise is valid, which is made to him to return it, by a person to whom he has delivered or entrusted it, in which case his accountability for it, either to the plaintiff or defendants in the suit, according as the property may, or may not, be legally subjected to satisfy the judgment recovered in the suit, is the ground on which such promise is sustained.

The promise of the defendants, in this case, being a valid one, the only question is, whether the breach of it, which consisted in their refusal to re-deliver the property to the plaintiff, was excused. The only excuse, set up by the defendants, is that the title of it was not in the defendants in the writs on which it was attached by the plaintiff, but in another person. This fact alone is no answer to the plaintiff’s demand. It did not divest him of his right to the property as against the defendants, under the contract with the latter. The plaintiff’s mere possession of it, although wrongful as against the true owner, constituted a good title to it as against all persons, excepting such owner or those claiming under him. It would be sufficient to enable the plaintiff to maintain trespass against one, who should tortiously take it from him, or trover against one, who should receive it from him as his bailee, and refuse to return it, contrary to the terms of the bailment. It would be no defence in these cases, merely that the ownership of it was not in the plaintiff, but in a third person. So a refusal by the defendants to return it to the plaintiff, from whom the former received it to keep on a promise to return it, is not excused by the fact that it did not belong to the plaintiff. If, however, the true owner had reclaimed the property from the defendants, and it had been restored to him, or if the defendants had acquired the title of such owner, that title being paramount to that of the plaintiff, the defendants would have been protected against any claim which the plaintiff might have made on him for the property. The defendants, in that ease, would have been invested with the rights of the owner. Or, if the property, while in the defendants’ hands, had been legally appropriated to the use of such owner, it would have formed a valid excuse for not returning it to the plaintiff. In this case, however, there has been no such restoration, acquisition, or appropriation. Therefore, if the case stopped here, the defence, founded on the title of a third person, would fail. But it appears further that the true owner of the property has recovered a judgment for its value in an action of trespass against the defendants, and one of the creditors, for whom he attached it, and that that judgment has been satisfied. The legal effect of that recovery and satisfaction was to transfer the title of such owner, in the property, to those against whom the judgment was so recovered. The defendants therefore never can be rendered liable for it to such former owner. If, then, the plaintiff is defeated of a recovery in this case, the defendants have acquired, and will retain the property, without paying any thing for it, and the plaintiff will lose not only the property, but also what he has been obliged to pay for it to its former owner; a result, which would be equally repugnant to justice and law.

We therefore advise a judgment for the plaintiff.

In this opinion, the other judges, Ellswohth and Hinman, concurred.

Judgment for the plaintiff'.


author: Hinman, J.

text:
    Beecher vs. The Derby Bridge and Ferry Company.
    On the trial of an action on the statute, entitled “ an act concerning highways and bridges,” to recover damages for an injury to the plaintiff’s horse, in consequence of a defect in the floor of the defendants’ bridge, the court instructed the jury that the defendants were not liable, unless there was culpable neglect, on their part, in suffering the bridge to be unsafe, and out of repair, and if the defendants were guilty upon this principle, the jury, in estimating the damages, were not necessarily confined to the exact deterioration in the value of the plaintiff’s horse, caused by the injury, but might take into consideration the fact that the plaintiff had been put to the necessity of seeking redress in a court of justice, although they should not take into consideration taxable costs. It was held that such charge was correct.
    Where, on the trial of such action, the court further instructed the jury that if the bridge was out of repair, and unfit for use, and this was the cause of the injury complained of, the defendants were called upon to show some satisfactory reason for it to rebut any inference of omission, and neglect of duty; it was held that as, whenever a bridge is out of repair, said statute seems to authorize the presumption of negligence on the part of the party who ought to keep it in repair, and to throw upon such party the burden of rebutting this presumption, the charge was not exceptionable.
    A new trial having been granted in the above entitled cause, (see ante p. 132,) it again came on for trial at the term of the superior court, for New Haven county, hold-en in December, 1855.
    On the trial upon the general issue, the plaintiff claimed he had proved the truth of the allegations in his declaration. The defendants admitted that it was their duty to keep the bridge in repair, and insisted that they had done so. The plaintiff claimed to have proved that some years before the time of the supposed injury, one of the piers of the bridge had been displaced by a heavy freshet, and the bridge after that, was not entirely true, and hence he claimed that the planks were not fitted securely, and especially that they were too short and were loose, and liable, at all times, to be lifted out of their places, or otherwise displaced, by wheels passing over them with rapidity, or at the end of them, and that in these particulars the defendants were guilty of culpable neglect; that from these causes, a certain plank was so lifted out of its place, and that the plaintiff’s horse passed one of his legs through the bridge and was hurt. The plaintiff asked the court to instruct the jury, that the defendants were liable for said injury, if the bridge was out of repair and unsafe, even although there had been no actual negligence on the part of the defendants. The defendants on the other hand, denying what the plaintiff claimed, admitted that they would be liable for actual negligence only, but they insisted that there was none proved, and none in fact—that they were not insurers against all accidents and all injuries, and were liable only in case of a wrong and culpable neglect of duty on their part. The court did not instruct the jury conformably to the claim of the plaintiff, but instructed them, that the defendants were not insurers, and were not liable unless there was a wrong and culpable neglect on their part, in suffering the bridge to be unsafe and out of repair. ^
    In the matter of damages, the plaintiff claimed that the jury should take into consideration the fact that the plaintiff had been obliged to come into a court of justice to obtain indemnity. The court instructed the jury, that if they found the defendants guilty upon the principle of liability just stated by the court, they were not necessarily confined in estimating damages to the exact deterioration of the value of the horse, caused by the injury, but might take into consideration the fact that the plaintiff had been put to the necessity of seeking redress in a court of justice, informing them, likewise, that as taxable costs of course followed the verdict, they would not take them into the estimate.
    The plaintiff' further claimed that if the bridge was, at the time of the injury, out of repair and unfit for use, the defendants were called upon to show some satisfactory reason for it, to rebut any inference of omission or neglect, which would otherwise arise. The court charged them that if they found the bridge out of repair, and unfit for use at the time, and this was the cause of the injury, the defendants were called upon to show some satisfactory reason for it, to rebut any inference of omission and neglect of duty, and how the facts were in this particular, the jury must decide, from all the evidence before them.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial.

      Baldwin, Wooster, and Downs, in support of the motion.
    I. The defendants are not liable in the present action at common law. If liable at all, they are so only to the extent prescribed by the statute. Chidsey v. Canton, 17 Conn. R., 475-479.
    This being an action on the statute, in the nature of an action of debt, and differs from an action of debt only in the mode of declaring. 1 Sw. Dig., 735.
    The defendants are liable only in contract, and hence the form of action is debt, or an action on the statute in the nature of debt.
    II. The court erred in its instruction to the jury in two particulars:
    I. The damages to be recovered must always be the natural and proximate consequence of the act complained of. 2. Greenl. Ev., § 256. In actions ex contractu, the damages are limited to the consequences of the breach of contract alone, except in an action against the vendor of real estate, who fails to perform and convey title, and in an action for breach of promise of marriage. Sedg. on Dam., 201-208-9-10. In Massachusetts and New York it is now well settled, that even in an action of trespass, or other action sounding in damages, counsel fees, and other expenses in prosecuting the suit, not included in the taxed costs, cannot be taken into consideration in assessing damages, and if such costs were included by a jury it would be irregular and erroneous. Barnard v. Poor, 21 Pick., 382.
    The rule is that in all eases that contain no element of actual fraud, malice or vexation, the plaintiff and defendant should be treated alike, and whether the form of action be ex contractu, or ex delicto, the remuneration, as far as counsel fees is concerned, should be similar. Sedg. on Dam., 101.
    This court, in the leading case of Lensley v. Bushnell, though yielding to the practice on the circuit, goes no farther than to establish this principle; that vindictive damages, or smart money, may be awarded by verdicts of juries in cases of wanton or malicious injuries in actions of trespass and case. Counsel fees are treated in that case as smart money in addition to actual damages. The term “just damages” can mean only the value of what the plaintiff has lost; an estimated equivalent for detriment, or injury. A sum given beyond actual loss is not damages awarded, but a penalty inflicted. If the legislature had intended that bridge owners should pay penalties, it would have enacted that they should pay treble or quadruple damages.
    The rulings at the circuit have been that it was not proper to give damages for the purpose of indemnity against the expenses of litigation, in actions on this statute, unless there was evidence of wanton and wilful neglect of duty. Seger v. Barkhamsted, 22 Conn. R., 293.
    III. Bridge companies are not insurers. The statute contemplates a culpable defect. To recover, the plaintiff must prove: 1. That he has received an injury. 2. That there was no want of reasonable or ordinary care on his part, and that the injury was not caused in whole, or in part, by his own negligence. 3. That there was negligence, a want of reasonable and ordinary care on the part of the defendants, either in the construction, or maintenance, and supervision of their bridge. 4. That the negligence of the defendants was the cause of the injury. Butterfield v. Forrester, 11 East., 60. Williams v. Holland, 25 E. C. L., 261. 25 Maine R., 49. 12 Pick., 177. Rathbun v. Payne, 19 Wend., 401. 21 Pick., 146. 2 Pick., 621. Hall v. Richmond, 2 Wood. & Min., 345. Park v. O’Brien, 23 Conn. R., 345.
    The onus probandi is on the plaintiff. He must prove the negligence of the defendants. The fact that a plank is out of place does not prove negligence, that might occur with the greatest care. The plank might have been removed by the hand of some malicious person, or in various other ways displaced, consistently with great care on the part of the defendants. The court, in this case, not only placed upon the defendants the burden of proof, but required them to give a “ satisfactory reason” why the plank was displaced. To show that they exercised the highest degree of care was not enough. The jury were told that the defendants must give a satisfactory reason why the plank was up; if they failed in this, they failed “ to rebut the inference of omission and neglect of duty,” which would arise from the plank being displaced.

      Blackman, and TI. B. Munson, contra.
    I. The defendants cannot well complain of the charge of the court below, as to the rule of their liability, for under it the plaintiff was required to prove and the jury to find; 1. That the defendants’ bridge was actually defective. 2. That it was so, by their sufferance. 3. By their wrong and culpable negligence. Even if negligence is to be deemed the gist of the action in this case, the plaintiff has not only proved it affirmatively, but he has gone further.
    II. The rule of evidence given by the court was correct, viz: That an inference of neglect, or omission, would arise, if at the time of the injury the bridge was out of repair, and unfit for use, and that was the cause of the injury. 1. This is the statute rule ; see stat., p. 582. The guarded language of the statute clearly implies that bridge-owners are to be held up to the highest degree of responsibility, or at least to be held accountable for the defects of their bridges, unless they can explain the cause; and, 2. such is the common law rule. Am. Rail. Cas. 346,973, and seq. 2 Camp., 75. 2 E. L. & Eq. R., 360. 3. This rule was a mere abstract proposition in this case, for the plaintiff was required to prove something more than a “ mere omission, or neglect of duty,” viz: a wrong, and culpable neglect of duty in suffering their bridge to be unsafe, and out of repair.
    III. The rule of damages was correct. This rule was fully established, and settled in Linsley v. Bushnell, 15 Conn. It., 206. 19 Conn. It., 264. The statute, by the term “just damages,” was not intended to restrict the common law rule, but rather to declare its applicability to cases arising under it; for it would not be “just” that the plaintiffs should be restricted to the actual amount of loss, which the wrong and culpable negligence of the defendants has occasioned, where, persisting in the wrong, they compelled him to litigate, for years, to recover it.
   Hinman, J.

This is an action upon that portion of the statute, relating to highways and bridges, which provides, “ that if any horse, or other beast, or any cart, carriage, or other property, shall receive any injury, or damage, by means of any defective road or bridge, the town, person, persons, or corporation, which ought to keep such road, or bridge, in repair, shall pay to the owner of such beast, or property, just damages.” Stat. p. 582 Ed. 1854. While the plaintiff was passing the defendants’ bridge, his horse was injured; and the verdict, under the charge of the court, finds that the injury was caused by reason of the bridge being defective, through the culpable neglect of the defendants, in suffering it to be out of repair, and unsafe. On the subject of damages, the court instructed the jury, that if they found the defendants guilty, upon the principle of liability just stated by the court—the principle of a culpable neglect, in suffering the bridge to be out of repair, and unsafe—they were not necessarily confined, in estimating damages, to the exact deterioration of the value of the horse, caused by the injury, but might take into consideration the fact, that the plaintiff had been put to the necessity of seeking redress, in a court of justice; also informing them, that they would not take into consideration taxable costs. The defendants claim that the charge, in respect to damages, is incorrect. They insist that, as the action is founded on a statute, it is in the nature of an action of debt, and, consequently, only such damages can be given, as would be applicable to a breach of contract, where the damages were unliquidated. We do not yield our assent to this proposition. The reasoning, that, because the defendants accepted of their charter, they contracted to perform its conditions,—(one of which was, to maintain the bridge in good repair),— therefore the neglect to do this is a mere breach of contract, is too artificial, and proves too much for the exigencies of the case. The tortious character of an act is neither changed, nor weakened, because there is superadded to the neglect of duty, a breach of promise, either express, or implied. There was, in this case, a culpable neglect of duty, which was directly calculated to endanger the safety of travellers over the bridge ; to call such a neglect a simple breach of a contract with the public, to keep the bridge in repair, is as contrary to law, as to the dictates of common sense. The carelessness of stage proprietors, and other carriers, by which persons are injured, is a breach of the contract to carry safely; but it is something more than that; and we see no real distinction between the use of an unsafe stage-coach, or rail-car, and the use of an unsafe bridge. We think, therefore, that the court was correct, in applying to the case, in respect to the damages, the principles applicable to actions on the case, for consequential injuries, and not considering it in the nature of an action of debt. The rule, adopted by the court below, we understand to be in conformity with the case of Linsley v. Bushnell, 15 Conn. R., 225, which must be considered as settling the law of Connecticut, whatever may be the prevailing doctrine elsewhere. The authorities, therefore, referred to by the defendants, which are contrary to our practice, as recognized in that case, can have no bearing upon the question.

It is said, however, that the court went further, on the subject of vindictive damages, than our practice, sanctioned by that case, will justify. We do not think so. The court did not tell the jury that they were bound to take into consideration the necessary expenses of seeking redress in a court of justice; but only, that they might,—that is, had aright to do so. Whether the jury would enhance the damages on this account, or not, would of course depend upon whether there was that degree of wantonness in the neglect of duty, which, in their opinion, called for vindictive damages. The doctrine applies to all cases, where the injury is wanton, or malicious, whether the result of tortious acts, or of gross, or wilful negligence, or carelessness. Of this the jury must judge, and, in practice, they will not assess vindictive damages, unless there is a degree of wantonness in the act, or the neglect, which, in their opinion, calls for such damages. Indeed, we believe the general practice is to advise juries not to increase the damages beyond a fair compensation for the actual injury, unless the transaction is of that wanton character, which renders it unjust to the plaintiff, that he should be at the expense of compelling the defendant to do him justice; and, where the parties stand in the relation of bona fide claimants to property, and are honestly contesting their rights to it, we believe there is no danger that a jury will assess vindictive damages, in favor of either party. Our practice on this subject, is illustrated in the case of Seger v. Barkhampsted, 22 Conn. R., 293, which was also an action against the town, for injuries caused by a defective bridge. The jury enquired of the court, whether they had a right to indemnify the plaintiff, for his reasonable expenses in prosecuting his action, and were informed that, in actions on this statute, unless there was evidence of wanton and wilful neglect of duty on the part of the town, it would not be proper forthem to do so. Of course it was implied in this instruction, that, in cases where there was evidence of wanton and wilful neglect of duty, it would be proper to assess such damages.

The court charged the jury that, if they found the bridge out of repair, and unfit for use, at the time, and this was the cause of the injury, the defendants were called upon to show some satisfactory reason for it, to rebut any inference of omission and neglect of duty.

There is nothing more in this, than a statement, in other words, of the substance of the statute, which requires that an injury, caused by a defective bridge, be compensated for by the town, or other corporation, or person, that ought to keep such bridge in repair. Of course it is understood that there must be a degree of negligence on the part of the party who ought to keep the bridge in repair, but the statute seems to infer this negligence, in the first instance, from the mere fact, that it is found to be out of repair, or defective, and to throw upon the defendant the burden of rebutting this presumption.

In this opinion, the other Judges, Storrs & Ellsworth, concurred.

New trial not granted.