text:
    Betts and others vs. New Hartford.
    A judgment rendered in a criminal prosecution', is not admissible as evidence in a civil cause, although the same questions of fact may be in issue in both.
    Where on the hearing of a petition for a highway before the commissioners, the respondents offered in evidence a certified copy of a writ of error brought to the superior court, to obtain a reversal of a judgment of the county court, rendered against one of the petitioners, on a complaint charging him with erecting a nuisance upon land over which a part of the highway prayed for was located, accompanied by other evidence tending to show that said highway was located in part over land already dedicated to the public: it was held, that the refusal of the commissioners to receive such copy in evidence, was no ground for setting aside their report laying out such highway.
    County commissioners are not judges within the meaning of the constitution of this state, art. 5, sec. 1, which provides that “no judge or justice of the peace shall be capable of holding his office after he arrives at the age of seventy years.”
    Where the three county commissioners to whom was referred a petition for a highway, were unanimous in their report; it was also held, that even if one of them, who was more than seventy years of age at the time of the hearing, was to be regarded as disqualified on that account, the other two would constitute the committee, and could make their report as the entire board,
    Where on the hearing of such petition before the commissioners, the respondents offered evidence to prove, that the owner of the principal part of the land over which the highway prayed for was laid, and also of the adjoining land, sold building lots adjoining said highway, and in his deeds bounded them upon “ West Street,” and made and publicly exhibited apian in which “ West Street” was laid down, and that a church and other buildings had been erected upon the land so sold, and that the land called “ West Street” in said deeds, was unenclosed and used asa public highway, and thereupon claimed that said proprietor should be estopped from denying that West Street was a public highway, and especially from claiming or receiving damages for taking it for said highway; but the commissioners received also much other and contradictory testimony, and upon the whole evidence found, that said “ West Street” had not been dedicated to the public, and proceeded to lay out said highway over said “ West Street,” and to assess damages therefor; it was held, that such course was correct.
    Where on the hearing of a remonstrance against the acceptance of a report of commissioners, laying out a highway, the remonstrants offered evidence to prove that the greater part of the land over which the highway was so laid out, had been previously dedicated to the prrblic ; it was held, that such evidence related to a question of fact, over which the commissioners had exclusive jurisdiction, and was inadmissible upon the hearing of the remonstrance.
    In a petition against a town for a new highway, the assessment of excessive damages by the county commissioners to individuals, occasioned by the laying out of such highway, does not entitle the town to a re-assessment of damages.

      This was a petition brought to the term of the county court for the county of Litchfield, holden in December, 1854, by J. H. Betts and others, praying that a highway might be laid out in the town of New Hartford, in Pine Meadow.
    The petition was referred to the county commissioners, who surveyed and laid out the highway, and made their report to the superior court, at its November term, 1855. Against the acceptance of this report the defendants filed a remonstrance, upon the hearing of which the court found the following facts.
    On the hearing before the commissioners, the respondents offered in evidence a paper purporting to be a certified copy of a writ of error brought by Hermon Chapin, one of the petitioners, to obtain a reversal of a judgment by the county court, against said Chapin, which had been rendered in a prosecution charging him with the erection of a nuisance upon a public highway, accompanied with proof, that the highway prayed for in the petition covered in part the same ground which in said prosecution was described as a public highway, and upon which said Chapin was charged with erecting a nuisance, and accompanied also with other evidence tending to show that the new highway prayed for, was located, in part, over lands already dedicated to the public, by said Chapin and others, as a public highway. To the admission of this paper in evidence, the petitioners objected, on the ground that it was not properly authenticated as a record of the conviction of Chapin, by the county court; and also upon the ground that even if properly authenticated, it was not admissible, either alone or in connection with the other evidence, to prove any of the matters in issue between the parties, and the commissioners thereupon refused to receive such paper in evidence.
    It was claimed on the trial before the commissioners, that the principal part of the land over which the new highway was prayed to be laid, had been dedicated to the public as a highway, by said Chapin and Darius B. Smith. Said Smith, being examined as a witness in behalf of the respondent, testified that he had given a part of his land to the public ; but upon cross-examination, said he wanted damages if others had damages, whose land was similarly situated, and no other claim for damages was made by Smith. The commissioners found, upon the whole evidence, that the land concerning which Smith so testified was not fully dedicated, and had not become a public highway, and thereupon allowed to Smith a small sum, as damages for said land.
    One of said commissioners, Stephen Deming Esq., was at the time of said trial, over seventy years of age. The respondents objected to his sitting, for that reason, but he acted upon said trial as one of the commissioners, and as presiding officer of the board. It was proved that the commissioners were unanimous in their final decision of the case, and ultimately unanimous on all the questions that came before them.
    On the trial before the commissioners, the respondents offered evidence that said Chapin, being the owner of the principal part of the land over which the highway prayed for was laid, and also of the adjoining land, sold in 1849 and subsequently, building lots adjoining said highway, and in his deeds bounded them upon “ West Street,” and that said Chapin made a plan of the premises, and publicly exhibited the same, in which plan “ West Street” was laid down by that name; and that a church, school-house, and other buildings, had been erebted upon the lands so sold ; and that the land called “ West Street,” in said deeds, was an unenclosed common, and was used as a public highway; and the respondents claimed that these facts conclusively showed that said West Street ought to be regarded by the commissioners as already a public highway; and that said Chapin was estopped from denying that it was such, and especially estopped from claiming damages for the taking of such land for highway. The commissioners however received other evidence tending to show that West Street was not opened as a public highway, that it was not opened as a thoroughfare, that it was understood when the deeds were made, that when a road was wanted there it was to' be obtained from the town; that the road had never been accepted by the town ; and upon the whole evidence the commissioners came to the conclusion that the said West Street had not been dedicated as a public highway.
    Upon the foregoing facts the court reserved the case for the advice of this court, upon the question whether the report should be set aside, or whether the same should be accepted. Upon the trial of the remonstrance, the respondent offered to prove, by witnesses and deeds, that the greater part of the land over which the commissioners had laid out said highway, had been dedicated to the public as a highway, and was in fact such prior to the bringing of the petition. To the admission of this evidence before the court, the counsel for the petitioners objected, on the ground that that enquiry was a matter of fact, over which the commissioners had exclusive jurisdiction, and on which they had passed. The court sustained the objection, and rejected the testimony.

      Goodwin and Foster, in support of the remonstrance.
    1. Chapin had dedicated his land to the public for a highway, and being a petitioner, is estopped from denying it to be such, and also from claiming or receiving damages therefor.
    2. The record copy of the writ of error offered by the respondents, was admissible evidence for the purposes for which it was offered. 1 GreenI. Ev., §§ 538, 527, 5 Esp, Rep., 58. 3 Conn. R., 90. 1 Conn. R., 1. 18 Johns., 352. 1 East., 355.
    It related to a judgment, the subject of which was of a public nature. 1 East., 355, 357. 5 T. R., 413. 1 Day, 222. 13 Wend., 592.
    3. D. B. Smith, having given his land to the public use, was not entitled to damages.
    4. That one of the acting commissioners and their chairman, being more than seventy years of age, at the time of trial, was disqualified by the provision of section 3, article 5, of the constitution of this state. 1 Day, 109. 1 Conn. R., 295. 7 Conn. R., 229. 9 Conn. R.,502. 13 Conn. R., 221.

      Johnson, Hitchcock and Bronson, against the remonstrance.
    1. The court will not set aside the doings of commissioners, except for irregular or improper conduct. And such conduct must be directly alleged and proved, and can not be made out by inference. In the present case there is no allegation and proof of any such conduct.
    2. The paper purporting to be a copy of the writ of error, was not admissible in evidence on the trial before the commissioners, either by itself, or in connection with the other evidence, to prove the only issue between the parties, viz., whether the road prayed for was of common convenience and necessity. It purported moreover, to be a copy of a record in a criminal case; and a judgment in a criminal proceeding can not be given in evidence, to establish the facts on which it wa.s rendered, even where the parties are the same. 1 Greenl. Ev., § 537. 1 Phil. Ev., 336. Sw. Ev., 20.
    3. It was the duty of the commissioners to assess such damages to D. B. Smith, as he sustained by the laying out of such highway; for upon the whole evidence, they found that he had not dedicated his land to the public.
    4. The constitutional disqualification contained in the third section of article 5, of the constitution of this state, is not applicable to the office of county commissioner. 22 Conn. R., 178.
    5. Whether Chapin had dedicated his land to the public for a highway, was a question of fact, entirely within the province of the commissioners. Their finding is therefore conclusive, and can not be reviewed by this court.
    6. The evidence offered by the respondents before the superior court, on the trial of the remonstrance, was properly rejected, because it related to a question of fact, over which the commissioners had exclusive jurisdiction, and on which they had passed.
   Ellsworth, J.

One of the questions reserved for this court is, whether the record of the case 'of the State v. Hermon Chapin, in the superior court, was improperly rejected by the commissioners, on their inquiry into the common convenience and necessity of the highway prayed for. It appears, that Chapin had been tried and found guilty for placing an obstruction in a certain highway, and was fined by the justice, four dollar's. He appealed to the county court and again was found guilty, and fined ten dollars. He then carried the case by writ of error, into the superior court, but did not get a reversal of the judgment. Now, it was a certified copy of this writ of error which the defendants presented to the commissioners. They offered it, to proveas they said, first, that Chapin had been convicted of placing a nuisance in the highway; secondly, that there was an ample highway already existing at the place in question; thirdly, that Chapin had dedicated his land to the public for a highway, and fourthly, that this dedication, if made, should at least reduce his damages. This evidence it is most obvious, is not the most appropriate and best evidence of the trial and conviction in the inferior court. The record of that court is the proper evidence and the recital of that record in the writ of error is no evidence at all, except for the proceedings in error. But passing this, if the form of the evidence were unexceptionable, as contended, we are not satisfied that the evidence was material or relevant. It was the record of a criminal suit, and the only important fact supposed to be established by the verdict is, that there was already a highway at the place in question, and that it was unnecessary to lay out a new one; and that if a new one was laid out, it would be less injurious to said Chapin. To this we answer, that a verdict in a criminal case is not evidence of the facts upon which judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. 1 Greenl. Ev., §§ 536, 524. 1 Phil. Ev., 231. Sw. Ev., 20.

The next objection is, that the commissioners allowed to one Darius B. Smith, a small sum of money, as his damages, when, as the defendants insisted, he was entitled to no damages at all, because he had already dedicated his land to the public. This supposed dedication the commissioners duly inquired into, and they found that it was not true; that the road bad not been dedicated as a public highway, and therefore they allowed to said Smith, as they had a right to do, his proper and legal damages.

The next objection is, that Stephen Deming Esq., one of the commissioners, was at the time of the trial over seventy years of age, and was by the constitution of the state incompetent to act in a judicial capacity. The article of the constitution referred to is the fifth, which treats of the “judiciary department.” It provides that the judicial power shall be vested in a supreme court, a superior court, and such inferior courts as the general assembly shall from time to time ordain or establish. The second section declares that justices of the peace shall be appointed. The third section proceeds to point out the manner of appointing judges of the supreme court and of the superior court, and justices of the peace ; and then after speaking of the tenure of office of these judges and justices, it provides that no judge or justice of the peace shall be capable of holding his office after he shall arrive at the age of 70 years. These words of the constitution do not comprehend mere administrative officers of the government, such as commissioners, committees, auditors, selectmen and the like, who were never called judges, and who do not constitute a court vested with judicial power. So we decided in the case of Groton and Ledyard v. Hurlburt & al., 22 Conn. R., 178, which case involved this very question. It was the case of county commissioners, and we held that they did not essentially differ from commissioners on bridges, ferries, sewers, and turnpike roads, fence viewers, committees of courts, or selectmen. We are satisfied that the persons in question are not judges of courts, coming within the 5th article of the constitution. They hold no courts, nor have they clerks, nor records or fixed modes of proceeding or practice.

We may add, that as the three commissioners were unanimous in their report, if Mr. Deming was incompetent by reason of age, then the other two commissioners alone constituted the board, and could as well make the report, as the entire board.

It was again objected that the commissioners should not have awarded damages to said Chapin for a supposed injury to his land, because the land where the highway was laid out by them, had been dedicated by said Chapin to the public; and the circumstances to prove this are declared in the remonstrance of the defendants. Our answer to this is, that the commissioners received this evidence, and much other evidence to'the contrary offered by said Chapin, and on consideration of the whole evidence, found there had been no such dedication, and thereupon proceeded to lay out the highway as necessary, and to assess damages, as they certainly had a right and were bound to do, in discharge of their public duty.

There is no force in the remaining claim, that the court below should have permitted the defendant on hearing the remonstrance, to go into original proof that the greater part of the land over which the commissioners had laid out the highway, had been dedicated to the public. This inquiry belonged exclusively to the commissioners, who necessarily examined into it as involved in the inquiry whether or not the highway prayed for was of common convenience and necessity.

As we decide that the report of the commissioners is unexceptionable and ought to be accepted, in this event we are requested to advise the court below, that the defendants are entitled under the statute, to have the damages reassessed, being as they insist altogether excessive. We think they are not. Persons whose lands are taken, alone have this right and privilege, but not the public, for it is the public by its own agents, who have taken the land from others at its just value as fixed by themselves, the legally constituted agents of the government; and certainly the public can not complain of the judgment of their own agents. This we are satisfied is the true theory; and we see nothing in the statute which leads us to form a contrary opinion. Such, we believe, has been the uniform practice and general understanding of the people and the courts of the state.

Our advice is, that judgment be rendered for the plaintiffs.

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

Judgment for the plaintiffs.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Ryan vs. Dayton.
    The ancient rule, that when the service of a person hired to labor for a specified time ceases within that time, there can be'no apportionment of wages for the actual time of service, and consequently no recovery for the services rendered during such time, has recently been relaxed in particular cases.
    Where the contract is for the personal services of the individual who is hired, and can not be performed by the agency of another person, there is an implied condition, although there may be no express stipulation upon the subject, that an inability to labor during a part of the stipulated time, so far constitutes an excuse for not laboring during the time covered by such inability, that the party hired is not thereby deprived of the right to a reasonable compensation for the services actually performed.
    The plaintiff contracted with the defendant to labor for him for one year from the first day of August, for one hundred and sixty dollars, to be paid at the end of the year. Having labored from said first day of August, until thfe first of January following, he left the service of the defendant, on account of ill health. Afterwards, on his recovery, he offered to resume his work, but the defendant refused to receive him into his service. On the 28th day of February, the plaintiff brought his action of assumpsit to recover the value of the services which he had already rendered. Held, 1. That it was not necessary to determine whether such agreement was within the statute of frauds; because if it was, while it remained executory the law would give it no effect; but that, as the services were not intended to be rendered gratuitously, in the absence of any valid special contract between the parties, the law would imply a promise to pay the plaintiff what he reasonably deserved to have. 2. That in determining what that amount should be, the court would not entirely disregard the agreement as to the price for the services. 3. That if such agreement was not within the statute of frauds, the omission of the plaintiff to labor during his sickness was for a reasonable cause, and therefore he had a right to treat his dismissal by the defendant as a rescission of the agreement. 4. That the contract being thus terminated, the plaintiff might recover for the services rendered, without waiting for the expiration of the time fixed in the agreement for its performance.

      Assumpsit for work and labor.
    The cause was referred to an auditor, who at the term of the superior court for Litchfield county, holden in March, 1856, made his report, embracing the following facts :
    On the 30th and 31st of July, 1854, the plaintiff labored for the defendant by days work, for which the defendant paid the plaintiff; on the last day aforesaid, it was mutually agreed, verbally, bétween the plaintiff and defendant, that the plaintiff should labor for the defendant at farming for the term of one year, to commence the next day, and that the defendant should pay the plaintiff one hundred and sixty dollars for the year, payment to be made at the close of the term.
    Under this contract, the plaintiff commenced laboring for the defendant on the 1st of August, and continued so to labor until January, 1855, when on account of ill health, without giving notice to the defendant, he left the defendant’s premises, without alleging' any cause for so doing at that time
    After the plaintiff had been absent from the employment of the defendant about ten days, he sent his brother to inquire of the defendant if he then wanted the plaintiff to return to work for him; and the defendant sent word to the plaintiff declining to receive him. Subsequently, and within a week, the plaintiff came in person, and then offered to go to work on his contract, and the defendant then refused to let him do so, and told him that he did not want him any more on his farm.
    The plaintiff then went away, and on the 28th day of February, 1855, commenced the present suit. The auditor found that the plaintiff performed his labor faithfully, and that his services were worth at the rate of one hundred and sixty dollars per annum, for the time that he worked.
    If upon the foregoing facts the plaintiff should be entitled in law to recover, the auditor found the defendant indebted to him ; but if not so entitled to recover, that the defendant owed him nothing.

      The court accepted the report and reserved the questions arising thereon for the advice of this court.
    Webster, for the plaintiff.
    1. The plaintiff is entitled to recover pro-rata for the time he worked, because the contract was mutually abandoned, and he was> excused from its fulfilment by the conduct of the defendant. Chit, on Cont., 579.
    2. The complete fulfilment of the contract by the plaintiff, is not a condition precedent to his right to recover for the service he has rendered, when he is prevented from such fulfilment by the defendant, or where the defendant waives such fulfilment. Dayton v. Dean, 23 Conn. R., 99. 11 Verm., 560, 561. Chit, on Cont., 578.
    3. The contingency of the plaintiffs sickness entered into the contract of the parties, at its inception, by implication. And his ill health furnishes a sufficient excuse for his absence from the service of the defendant. Such absence was no excuse for the defendant’s refusal to allow him to complete his contract. 2 Kent. Com., 258. 11 Verm., 557. Chit, on Contr., 576.
    4. The contract, by its express terms, was not to be performed within one year from the making thereof, and not being in writing, was therefore void by the statute of frauds. Comes v. Lamson, 16 Conn. R., 2-16.
    The plaintiff is therefore entitled to recover what his services are reasonably worth.
    5. But if there was a valid contract between the parties, and the plaintiff' left the defendant’s service before it was fully completed, he still may recover so much as his services were reasonably worth. Chit, on Contr. 580, note. Button v. Turner, 6 N. Hamp., 481.
    Phelps, Hollister and Beman, for the defendant.
    1. The contract is not within the statute of frauds-.
    2. The performance of the entire contract is a condition precedent to the plaintiffs’ right to recover. Dutch Church

      of Albany v. Bradford, 8 Cow., 57. Paige v. Ott, 1 Denio, 406.
    3. By express stipulation, the payment is to be made at the end of the year; and therefore the action is prematurely brought.
    4. The' plaintiff left the defendant’s service “ on account of ill health,” but it is not found that his ill health prevented the performance of the contract. He left without assigning that reason, and without notice.
    5. If the sickness prevented the performance of the labor ex necessitate it does not hasten the time of payment, against the express stipulation of the parties. Alexander v. Smith, 4 Denio, 364. Chauncey v. Overman, 1 Dev. & Bat., 402.
    6. The employer does not take the risk of the health of the employed. The contract to labor is absolute. It was the right and duty of the plaintiff to have inserted a provision in the contract for such a contingency. Broom’s Legal Maxims, 182. Atchison v. Ritchie, 10 East, 533, 534. 13 M. & W., 487. 15 M. & W., 253, 262.
   Storrs, J.

We do not deem it necessary in this case to determine the question which has been made, whether the agreement between these parties is within the provisions of the statute of frauds. If it is, the law would give it no effect while it remained executory, and no action could afterwards be maintained on it, nor could it be used as a defence to an action brought for services rendered under it. It would be treated for these purposes, as though it never existed. But where the services, as in the present case, were not intended to be rendered gratuitously, the law would in such absence of any valid special contract between the parties, imply a promise on the part of a person who employed another to labor, to pay the latter what he reasonably deserved to have for his services, and he would be entitled to recover that sum. But, in determining what that amount should be, we are by no means prepared to adopt the principle which has been claimed to follow from the case of Comes v. Lamson, (16 Conn. R., 246,) that the price actually agreed upon for the services is not to be regarded. It is obvious, that such a rule would be productive of great injustice to an employer, where the agreement, invalid under the statute of frauds, was that the services should be rendered for a particular sum, which was less than such services would be worth, if estimated independently of any such agreement, and as if no price had been stipulated. (See Clark v. Terry, post.) If, however, the agreement in this case is not within that statute, we think that, on the facts found by the auditor, the plaintiff is entitled to recover the same amount. Considering it as a valid agreement, if the omission of the plaintiff, during the time when he was disabled by sickness from laboring for the defendant, was a violation of the special contract between them, it justified the defendant in refusing to receive the plaintiff back into his service; but if it was not, it constituted no such justification, and the plaintiff' had the right to treat, as he did, such refusal as a rescission of the contract by the defendant, and thereupon to bring an action on the promise which the law would, on the abandonment of that contract, imply on the part of the defendant, to pay the valué of the services which had been rendered. And, as an end would thus be put to the special contract, and the plaintiff’s right to recover would rest only on such implied promise, he would not be bound to wait until the expiration of the time fixed by that contract for its performance, as he must have done if it were not rescinded, and he had sought to enforce it, but might sue immediately.

The question then is, whether the omission of the plaintiff to labor during his sickness, was a sufficient reason, when he recovered and offered to continue to labor, for his dismission by the defendant, and this must depend on the true nature of the duty or obligation imposed on the plaintiff by the agreement between them. If such omission to labor constituted a wilful breach of such agreement, or is to be considered as standing on the same ground as a voluntary abandonment of the service of the defendant, it justified him in refusing to receive the plaintiff back into his service. If it came short of this, we are of opinion that it furnished no such justification.

It is difficult to reconcile the reported cases on the subject of the liability of an employer of a person who is hired to labor for a specified time, on wages to be paid at the expiration of that time, where such person has, without his fault, failed to labor for the whole of such time; or to extract from them any well defined rule. There is much confusion in them which seems to have arisen from the different views entertained by the courts, on the question whether such a contract of hiring is to be governed by the principle which prevails in regard to a contract to do a specific piece of work as to build a house, or a machine, for a particular sum; in which case the contract is held to be entire, and the performance of it a condition precedent to any right of action against 'the employer, and the non-fulfillment of it is not excused by inevitable necessity. We do not propose to examine those f cases in detail. In the earliest of them it was established, J that the same principle applied to both of these species of l contracts, and that therefore where the service of a person ! hired to labor for a specified time,-ceased within that time, there could be no apportionment of wages for the actual; time of service, and consequently no recovery for the services\ rendered during such time. But this rigid and unreasonable rule has recently been relaxed, and it is now.generally, if not j! universally held, that wages may in particular eases be ap- t portioned; which, in our judgment, is much more in accord- ¶ anee with the true character of such a contract, the presumed t intention of the parties, and the demands of justice. A eon-tract of this sort is for the personal services of the individual who is hired, and can not be performed by the agency of another person, and in this important respect is peculiar and different from a contract by which one agrees to do a particular piece of work, as for instance, to build a house, which may be performed through another person. It is unreasonable to suppose that the parties to such an agreement as the former, knowing that the person hired is liable to be interrupted in his labor by the act of God or inevitable necessity, intended or expected, although there should be no express stipulation on the subject, that he should in such an event, not only lose his services, but as the case might be, be bound even to repay to his employer what he has received in part payment for them. And it is obvious that a rule which! would subject him to these consequences, would be not merely harsh but unjust. - Viewing the present as a contract-for the personal services of the plaintiff, and which could only be performed by himself, we think that, from its nature, a condition was impliedly attached to it, that an inability to labor during a part of the time stipulated, produced by inevitable necessity, should so far constitute an excuse, for not laboring during that period, that he should not thereby be deprived of a right to a reasonable compensation for the service performed by him under it; and that the rule, that where a person by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, which properly understood, we do not intend to impugn, is-not applicable to such a contract. 1 Co., 98. Williams v. Hyde, Pal., 548. 1 Shep. Touch., 180. Gilbert on Covenants, 472. Nash v. Ashton, Skin., 42. In regard to a contract of this kind, we j are indticed to adopt, as the most suitable and just general j rule, in a case where the servant leaves the service before thejj end of the time for which he was hired, the one laid down by ] Chancellor Kent, (2 Comm., 258-9,) that unless he so leaves without reasonable cause, or is dismissed for such misconduct as justifies the dismission, he does not forfeit a right to his wages for the period for which he has served. It should be observed, however, that we do not intend to say that in such a case, he would necessarily be entitled to a proportional part of the sum agreed to be paid for the whole time, and that it should not be reduced so as to indemnify the employer for the loss which he has sustained by the non-ful- - fillment of the agreement. This case calls for no decision on that point. Applying the rule we have adopted to the present ease, we can not entertain a doubt that the absence of the plaintiff from the defendant’s service, being occasioned by sickness, was for a reasonable canse, and therefore constituted no sufficient reason for his, dismissal; and that the plaintiff is consequently entitled to recover the value of his services as found by the auditor.

We place our opinion on the distinction between a contract for personal services, and one in which they might be lawfully performed by the contractor either personally or by the agency of another, and it will be perceived that our views are, for the most part, in accordance with those of the supreme Court of Vermont,, in Fenton v. Clark, (11 Verm., 557,) which was a case in all substantial respects like the present.

Advice accordingly.

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


author: Waite, Ch. J.

text:
    The State vs. Cunningham.
    The power of giving greater effect to evidence than it possesses at common law has been frequently exercised by legislatures and such exercise is constitutional.
    The provision of the ninth section of the statute, entitled “ An Act for the suppression of intemperance,” that on the trial of every complaint for keeping spirituous liquors in violation of such act, proof of the finding of such liquor in the possession of the accused, under certain circumstances specified in said act, shall be received and acted upon, by the court, as presumptive evidence that such liquor was kept or held for sale contrary to the provisions of said act, is constitutional and valid.
    The object of this provision was not merely to render such evidence admissible, for without the aid of the statute, it might have been received, although other evidence to show such intent would have been necessary. Neither is it made conclusive proof of such intent, but merely presumptive evidence, and as such proper for the consideration of the jury in connection with the other evidence in the ease,

      The" presumption of the innocence of the accused raised by the common law, may be taken into consideration by the jury, but the law does not make it sufficient to rebut the presumption of guilt, authorized by the statute to be drawn from the finding of the liquor in the possession of the owner under the circumstances set forth in the act.
    "Where on the trial of an information for a violation of said ninth section of said act, the court charged the jury substantially, that the statute as matter of law makes such evidence sufficient proof of guilt, thereby withdrawing from their consideration the qtiestion of the intent of the accused as matter of fact; it was held, that such instruction was erroneous and a sufficient ground for granting a now trial.
    This was an information, charging the defendant with keeping liquors, with intent to sell the same, in violation of the statute of 1854, entitled “ An Act for the suppression of intemperance.”
    The ninth section of that act provides “ that proof of the finding of the liquor specified in the complaint, in the possession of the accused, in any place except his private dwelling-house, or dependencies (or in such dwelling-house or dependencies, if the same be a tavern, public eating house, grocery, or other place of public resort) shall be received and acted upon by the court, as presumptive evidence, that such liquor was kept or held for sale, contrary to the provisions of the act.”
    The cause was tried at Hartford, before the superior court, at the July term, 1855.
    Upon the trial the defendant’s counsel claimed and requested the court to charge the jury. 1. That they ought not to convict the defendant, upon the presumption raised by the statute alone, without evidence sufficient of itself, to show that the liquor was kept for purposes of sale.
    2. That the presumption of innocence raised by the common law, is sufficient to rebut the presumption of guilt raised by the statute.
    But the court instructed the jury as follows :
    1. If the jury believe upon the evidence, that the prisoner was the keeper of a grocery store, a place of public resort for trade, whether under the same roof with his dwelling-house or not, and that the liquor charged in the information to have been found therein, was found in the possession of the prisoner in such store, in such place and manner as liquors are usually kept for sale, the law makes such finding sufficient evidence of the intent of the prisoner to sell the same in violation of the ninth section of the statute, unless such evidence is rebutted by evidence going to show a different intent, and in the absence of any explanations of the purpose for which the same was so kept in said store, the jury may lawfully found a conviction thereon.
    2. That the presumption of innocence, raised by the common law, is not sufficient to rebut the presumption of guilt authorized by the statute to be drawn from the finding of the liquor in the possession of the owner, under the circumstances set forth in the act,
    The jury having returned a verdict against the defendant, he thereupon filed a motion for a new trial, which was reserved for the advice of this court,

      Robinson and W. D. Shipman, in support of the motion.
    The court gave the jury to understand that the finding of the liquor in the store of the accused sufficiently proved the criminal intent to sell, by force of law; and thereby imposed on the defendant the burden of proving the contrary. This is claimed to be manifestly exceptionable.
    1. The statute in question will not bear the construction given to it by the court. It does not prescribe either the proper amount of evidence or the proper weight to be given to it; but merely makes it admissible for a peculiar and unusual purpose. “ Proof of the finding shall be presumptive evidence” of the intent, &c.
    (a.) Evidence is not necessarily proof. Both in law and logic evidence of a fact is merely that which tends or conduces to enforce conviction: proof is that, which actually produces (or ought to produce) conviction. The two words, proof and evidence, are differently used in the clause of the statute just quoted. Bee Webster’s Dictionary, ad. verb.
    (&.) “ Presumptive” evidence is a term used in distinction from “direct” evidence. Each is a word qualifying evidence in kind merely, not in degree. Neither of necessity implies “ sufficient,” “ conclusive,” or “ decisive,” evidence.
    (c.) Prima facie evidence, on the contrary, is a term defining a degree or an amount of testimony: but the word “presumptive” is not co-extensive in meaning with prima facie. A presumption merely tends to establish a conclusion of fact; it is to be weighed ; it may be “ light,” “ rash,” “ violent,” in. different cases. Prima facie evidence establishes a legal conclusion. 2 Phil, on Ev., Cowen & Hill’s Notes, 309.

      (d.) The legislature did not intend to give to the term presumptive evidence, the extended meaning adopted in the charge. In that case they would have used unequivocal language, declaring that the keeping of liquor in certain specified places shoúld be punishable, unless the possessor should show that it was not kept for sale. Such, in effect, was a law of Massachusetts on this subject: and the history of the provision now under review is supposed to be, that it was designed to avoid the constitutional objection which prevailed against that enactment. Fisher v. McGirr, 1 Gray, 1.
    (<?.) It can not be objected that this construction renders the clause frivolous and superfluous. By common law rules, there would be a difficulty, in the absence of any other proof of the corpus delicti, in introducing for such a purpose the mere possession of the liquor by the defendant in his store or in private apartments connected with his store. It is broadly declared to be no evidence for that purpose. Fisher v. McGirr, 1 Gray, 36.
    The liquor might be kept for sale and it might be kept for some other and lawful purpose. Its possession, unlike that of counterfeit money, furnished no affirmative evidence of any crime or criminal intent whatever. On objection, unless it should be made relevant by other testimony indicating the purpose of selling, the proof of a mere finding would be rejected by the court. The design of the legislature therefore, was to render such finding substantive testimony; tending to prove the very substance of the charge; admissible for the purpose of showing an intent to sell.

      2. But even if the statute constituted the possession of liquor prima facie evidence, it was error for the court to instruct the jury, that thereupon it became necessary for the defendant to rebut or explain away the case of the state. The jury were still at liberty without rebutting testimony, to regard the presumption as insufficient to warrant a conviction. This is settled law. Commonwealth v. Kimball, 24 Pick., 366. Commonwealth v. Dana, 2 Metc., 329.
    3. If the charge of the court was a correct interpretation of the statute, the legislature have exceeded their powers and their act is unconstitutional and void.
    The constitution, (Art. I. §21,) provides among other declarations of rights, that “ the right of trial by jury shall remain inviolate.”
    Artificial presumptions have always been ultimately held in criminal trials, to be invasions of the right of a jury to determine all the facts of the case, including the criminal intent of the accused. In civil causes, arbitrary presumptions are sometimes required by public policy. In criminal cases natural presumptions, not' violating the instincts of justice have been. permitted: but all endeavors to set up purely artificial standards of evidence to prove crime, have been reprobated as violations of the right of the accused to require of a jury, the determination of all the facts of his ease, according to their private judgments.
    Nor does it make any difference, whether an arbitrary interpretation of facts is declared to be law by a judge, or made to be law by a legislature s whenever jurors become bound by their oaths to accept such an interpretation against their convictions, or without conviction, as conclusive proof of a criminal charge, the legal procedure ceases to be a trial. 3 Starkie Ev., 929, 930, note.

      KvMgerford and Hubbard, (State Attorney) against the motion.
    1. The construction which the common mind would naturally place upon the language of the statute in question is, that the possession of spirituous liquors under the circumstances mentioned, is to be considered prima facie evidence of the intent to sell.
    2. The terms employed imply this construction. “Proof” is conclusive evidence. “ Presumptive evidence” is prima facie evidence.
    3. The legislature must have intended this construction. The law is in part preventive, its object was to facilitate the proof of a matter difficult of proof, by casting the burden on the party who could most easily meet it.
    4. A different construction renders the statute insensible and absurd. To give less efficacy than this to the evidence would be practically to declare that it should pass for what it is worth. Such a law would be superfluous.
    5. -The term “presumptive evidence” was not used as a synonym for indirect or circumstantial evidence. The legislature did not intend to inform the court that indirect evidence was not direct.
    6. The statute intends that proof of possession shall raise a legal presumption of the intent. A presumption of fact is a conclusion of fact. Wills on Cir. Ev., 16, 17. Best on Presumptive Ev., 12. 3 Starkie Ev., 927.
    This presumption may be conclusive or disputable. -1 Greenl. Ev., § 33. Here it is a disputable presumption.
    7. The direction that this evidence “ shall be acted upon by the court,” implies that something more was meant than circumstantial evidence.
    8. This presumption is not neutralized by the common low presumption of innocence. The statute overrides the common law. To suppose this, is to neutralize the act of the legislature and stultify its makers.
    9. The legislature have power to declare what shall be prima facie evidence of crime, and so shift the burden of proof. 1. The courts have done this from time to time without the sanction of the law-making power. 2. A fortiori the law-making power may do it, and we find they have done it repeatedly, both in England and in this country.
    10. The construction contended for does not impair the right of jury trial. If it did, legal presumption could not be allowed in civil cases ; a contrary doctrine would authorize a jury to convict of perjury on the testimony of one witness; to convict a child under the age of seven; to acquit of adultery on record proof of the first marriage.
    It may not be expedient or proper to raise legal presumptions in criminal cases. The legislature are the judges of the question. The office of the court is simply to declare what the law is, not what it should be.
   Waite, Ch. J.

The legislature, in making the finding of spirituous liquors, under certain circumstances, in the possession of a person, presumptive evidence of a keeping of them with intent to sell, undoubtedly intended to give greater effect to such evidence, than it had at common law. It is not to be presumed that the legislature intended to pass an unnecessary statute.

The object could not have been merely to render it admissible, for without the aid of the statute it might have been received, although other evidence to show the intent would have been necessary. Nor is it made conclusive proof of such intent, but merely presumptive evidence, and as such, proper for the consideration of the jury in connection with the other evidence in the case.

Hence it has been asked, can a sexton of a church, having in his possession wine to be used at the communion table, be convicted of an unlawful intent? Clearly not, the character of the possessor, the ownership of the wine, and other circumstances may completely rebut the presumption of guilt. But although he may hold that office in the church, yet, like any other person, he may be convicted of the charge of keeping wine for sale, if the jury should be satisfied, that the evidence proved the charge.

So a carman, who is found carrying along the streets a cask of liquor, may rightfully be acquitted of an intent to violate the statute, if the jury should be satisfied from the evidence, that he was merely exercising the business of a common carrier. Or he might be convicted of an offence against the statute, if the jury believed he was transporting it for the purpose of perfecting a sale.

With what intent a person keeps intoxicating liquors, is always a question of fact for the jury, to be determined upon a view of all the evidence. And in disposing of that question, they are required by the statute to consider the keeping of the articles in the manner specified in the statute, as presumptive evidence of an unlawful intent. But that evidence may be rebutted and controlled by the circumstances, as would be the case in the instances of the sexton and carman alluded to, as well as by other evidence in the case, whether shown by the accused in his defence, or by the state in connexion with the evidence proving the possession.

With such evidence, the jury may also take into consideration the presumption of the innocence of the accused.

It has been said that the keeping of spirituous liquors is a lawful act, and being such, the legislature has no constitutional power to make it evidence of an unlawful act. Many acts at common law are lawful, and yet the performance of them is prohibited by the legislature, in the legitimate exercise of their sovereign power.- Even the sale of such liquors is not by the common law unlawful. It is only made so by statute. And if the legislature can constitutionally prohibit such sale, we see not why they may not properly prescribe what acts shall be considered as evidence of an intent to make the sale.

The legislature may say that the possession of stolen goods in a place of concealment, or the possession of counterfeit coins, under certain circumstances, shall be prima facie evidence of a criminal intent, and throw the burden of proof upon the accused, although other evidence may show that such possession was perfectly lawful.

As is well said by Bennett, J. It is only founding a presumption upon our own experience of human conduct, and rests upon the same basis as that which makes a receipt for the last quarter’s rent, prima facie evidence of the payment of the rent which had previously accrued.”' 27 Verm. R.. 357.

The power of giving greater effect to evidence, than it possessed at common law, has been frequently exercised by legislatures. Thus in a case of a seizure under the law of Congress of 1792, in which it was provided, that if property be claimed by any person in any such case, the onus probandi should be upon the claimant where probable cause was shown on the part of the prosecution ; it was holden that the statute meant less evidence than would otherwise justify a condemnation, and that probable cause shown for the prosecution, was sufficient to rebut the presumption of innocence, and throw the burden of proof upon the claimant. The Lumi» nary, 8 Wheat., 407.

In another case before the supreme court of the United States, it appeared that the district judge had instructed the jury that proof that an Indian trader had carried ardent spirits into an Indian country, and had them with his other goods, was prima fads evidence of their having been carried there in violation of a law of Congress, and threw upon the trader the burden of proof, although the judge, at the same time told the jury that he might lawfully carry them there for some purposes, as for medicinal use. And this ruling was said by judge Washington, who delivered the opinion of the supreme court, to have met their entire approbation. American Fur Company v. United States, 2 Peters, 358.

If such evidence at the common law, is prima facie evidence of an unlawful extent, so as to throw the burden of proof upon the accused, we see not why the legislature may not well say, that proof of those facts mentioned in the statute shall be deemed presumptive evidence of a like intent, nor why the circumstances detailed by the judge in his charge to the jury in the present case, may not be considered prima facie evidence in support of the complaint against the defendant.

With respect to the constitutionality of the statute generally, we refer to the opinions given in the two cases in New Haven county, which were heard shortly after the arguments in the present case. State v. Brennan's Liquors. State v. Wheeler, post.

Such in our opinion being the law upon the subject, the next enquiry is, whether the case in the court below, was properly submitted to the jury.

They were told thatif upon the evidence, they believed that the prisoner was the keeper of a grocery store, a place of public resort for trade, that the liquor charged in the information to have been found therein, was found in the possession of the prisoner in such store in such place and manner as liquors are usually kept for sale, the law makes such finding sufficient evidence of the intent of the prisoner to sell the same in violation of the ninth section of the statute, unless that evidence is rebutted by evidence going to show a different intent, and, in the absence of any explanations of the purpose for which the same was so kept, the jury might lawfully found a conviction thereon.

Now, if we are to consider the charge of the judge as a mere commentary upon the evidence, accompanied with an expression of his opinion, that if the jury found the facts to be as detailed by him without any rebutting or explanatory evidence, they might lawfully found a conviction thereon, we see nothing objectionable in the charge. The facts thus detailed were undoubtedly very strong evidence of the guilt of the accused, and in. the absence of any rebutting testimony, in our opinion, were abundantly sufficient to justify the jury in rendering their verdict.

But if the judge is to be understood as saying, that the statute, as matter of law, makes such evidence sufficient proof of guilt, thereby withdrawing from the jury the consideration of the question of the intent of the accused as matter of fact, which is the construction which both parties give to the charge, then my brethren are of opinion that the instruction was erroneous. And they are the more inclined to think that the jury did so understand the charge, from the expression that the law makes such finding sufficient evidence of the intent to sell, whereas the statute merely makes it presumptive evidence.

I should not have given this construction to the charge, but for the reason stated, my brethren are of opinion that a new trial ought to be granted.

In this opinion, the other judges, Storrs and Henman, concurred, except as to the construction given by the Chief Justice to the charge of the court below.

New trial to be granted.


author: Waite, C. J.

text:
    Fahay vs. The State.
    The omission of a justice of the peace to appoint a guardian ad litem for a minor, on the trial of a complaint for drunkenness, can not be taken advantage of in the superior court, on an appeal from a judgment against such minor, by a plea in abatement.
    A complaint was made by a grand-juror of the town of Berlin, to a justice of the peace, charging the plaintiff in error with the crime of drunkenness.
    Upon the trial before the justice, the plaintiff was found guilty, and sentenced to pay a fine of twenty dollars and the costs of prosecution. From that judgment he moved an appeal to the superior court, which appeal was allowed by the justice.
    In the superior court holden at Hartford on the second Tuesday of March 1856, the plaintiff being found to be a minor, T. E. Doolittle Esq., was appointed his guardian ad litem, and then the following plea was interposed.

    “ Appeal from justice North, on complaint of intoxication.”
    “ The said Edward Fahay comes into court here, and says that the court here ought not to take further cognizance of, or sustain the complaint aforesaid, because he says that at the time he was put to plead tried and fined by the said justice North, as in said record set forth, and at the time of said appeal, he was a minor under the age of twenty-one years, and he further says, that no guardian ad litem to him, was appointed by said justice' North at the time of said pleading trial and judgment aforesaid, nor before said appeal, nor at any time during the pending of said cause, before said justice North, and the proceedings therein; all which he is ready to verify. Wherefore he prays judgment that said complaint may abate and be dismissed.”
    “ Edward Fahay,
    “ By his guardian ad litem, T. E. Doolittle.”
    To this plea there was a demurrer, and the superior court adjudged it insufficient.
    Final judgment having been rendered against the defendant below, he filed his motion in error, and brought his case before this court assigning for error, “ that judgment should have been rendered for the defendant, instead of the state, and the plea in abatement adjudged sufficient in the law.”

      Doolittle for the plaintiff in error.

      Cornwall for the state.
   Waite, C. J.

The only question presented upon the record in the present case, is, whether the superior court erred, in adjudging the plea of the defendant in that court insufficient.

That was a plea in abatement, founded upon the omission of the justice to appoint a guardian to assist the accused in his defense. It alleges that the court ought not to take further cognizance of, or sustain the complaint; and prays that the complaint may abate and be dismissed.

The omission of the justice to make the appointment, was undoubtedly an error, rendering his judgment liable to be set aside upon a writ of error, but affords no ground for dismissing the-complaint and setting the accused at liberty.

A minor, as well as an adult, may be prosecuted for a criminal offence, but as *the law considers the former incompetent to assert his rights, it makes it the duty of the court, before which the prosecution is carried on, to see that a guardian is appointed to assist the minor in his defense.

Had the accused simply called upon the court to dismiss the appeal, as having been irregularly taken, a decision to that effect, would have left the judgment of the justice in full force until reversed upon a writ of error. But the effect of a judgment abating and dismissing the prosecution, would be to discharge the accused without subjecting him to any punishment, for the offence alleged against him.

As the reasons assigned in the plea for abating the prosecution were insufficient, the demurrer to .it on the part of the state was well taken, and the decision of the superior court thereon was right.

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

Judgment affirmed.


author: Ellsworth, J.

text:
    Sheldon vs. The Connecticut Mutual Life Insurance Company.
    Where in an action on a life insurance policy, it appeared, that following an application of the insured for a policy, was a declaration signed by the applicant, but which was not made a part of the policy, stating that he agreed that the insurance proposed should not be binding until the premium, which was payable partly in cash and partly by note, should be received by the defendants, or their accredited agent; it was held, that parol evidence was admissible, for the purpose of showing a waiver of such pre-payment, that the defendants’ agent verbally agreed that the policy of insurance should take effect immediately upon the approval of the application, and that the premium note might be made, and the cash premium paid at some future time, at the convenience of the parties, provided that such agreement was made known to and acquiesced in by the defendants.
    Where in such action the plaintiff claimed that the defendants’ general agent for procuring applications for insurance, had authority to make such agreement, which the defendants denied; and the court submitted to the jury the question whether said agent had or had not such authority; it was held, that such course was correct.
    Where the defendant in such action, claimed that it was necessary to the validity of the policy, that it should be delivered to the assured, and the court instructed the jury, that when an application for insurance had been approved and accepted by the defendants or their proper agents, and a policy had been made and executed, and notice thereof given to the applicant, the contract was complete, and the applicant entitled to the policy; it was held, that such instructions furnished no ground for a new trial.
    This was an action brought by the administrator on the estate of Nathaniel Curtiss, deceased, upon a policy of insurance for three thousand dollars, claimed to have been made upon the life of said Curtiss by the Connecticut Mutual Life Insurance Company.
    The defendants pleaded the general issue, with notice that they should offer evidence that the insurance premium had never been paid, and the policy never executed or delivered. The cause was tried at the term of the superior court, for the county of Hartford, holden in December, 1855.
    On the trial, the plaintiff admitted that the policy of insurance set forth in the declaration had never been in the actual possession of himself or of Curtiss, but that in pursuance of a contract made by Curtiss with the defendants, through their agent. D. W. Norton, the defendants issued and executed said policy at their office in Hartford, on the 14th day of September, 1849, and on the 18th of the same month, forwarded it to said Norton at Suffield, where he and Curtiss then resided, and on the same day Norton countersigned it, but retained it in his hands until the 27th of October ; that a rule of said company required their agents to return all policies not taken by the insured within thirty days; that Curtiss died at Suffield, on the 21st day of October, 1849; that upon the request of the secretary, Norton returned said policy to the office in Hartford on the 27th day of October, when the signature of the president on it was erased.
    The policy, with the application and certificates, were in the usual form, and were read in evidence. Following the application was a declaration signed by Curtiss, which contained the following stipulation. “ And I do further agree that the assurance hereby proposed shall not be binding on said company, until the amount of premium as stated therein shall be received by said company, or an accredited agent.”
    The application and certificates were made at Suflield, and then delivered to Norton, who forwarded them to the defendants at Hartford.
    The plaintiff further offered evidence to prove, that at the date of said application, Norton was the general agent of the defendants for the purpose of making contracts of insurance on the lives of persons in Suflield and its vicinity, and as such agent was authorized to and did make the contract of insurance on which the plaintiff claimed said policy was applied for.
    The defendants denied that Norton was their general agent to make contracts of insurance, and that he had any authority to make any waiver on their behalf, or to deliver a policy to the insured until said premium should be paid, or until one-half thereof should be paid, and the other half secured by the promissory note of the insured, payable to said company and on interest, or that he had any other power or authority except as aforesaid.
    It was admitted that no note for any part of the premium on said policy had ever been given by Curtiss, and the defendants claimed that no part of said premium had ever been paid, or offered to be paid, by said Curtiss, or by the plaintiff, and that said policy had never been delivered and had never-taken effect, and that no contract of insurance binding on said company had ever been made.
    The plaintiff also claimed and offered evidence to prove, that according to the usage and course of business between Norton and said company, it was not required or expected that the identical money received by Norton for premiums on insurances effected through his agency, should be paid over to the defendants, but that it should be and generally was, when received, mixed by Norton with his other funds, and credited to said company in a general account kept by him of receipts and payments growing out of his agency, and that the usage and practice was, for Norton from time to time to make general payments to said company on account, without reference to any particular premium by him received; said company and Norton making occasional settlements, when said account was adjusted and the balance ascertained and paid.
    That, after the appointment of the plaintiff as administrator on Curtiss’ estate, and more than ninety days after said Curtiss’ death, and before the commencement of this suit, he went to the office of the defendants in Hartford, prepared to pay, and offered to pay to the agent of said company the whole amount of the premium due on said policy, which said agent refused to receive: and that he then demanded the amount of said insurance on said Curtiss’ life, which said agent refused to pay, because as he claimed, said policy had never been delivered and never took effect.
    That before making said application, Norton, professing to act as the agent of the defendants, and to be authorized in their behalf to make contracts for insurance, applied to Curtiss, and solicited him to obtain an insurance on his own life in said company, through the agency of Norton, and to induce Curtiss to make an application for such insurance, informed him that his inability to make immediate payment of the premium need be no bar to his immediate insurance, and proposed that if he would then make application for such insurance, and if his application should be accepted by the company at Hartford, his insurance should upon such acceptance immediately take effect, and that he, Norton, would provide for the cash portion of the premium himself, so that the omission of Curtiss to make immediate payment should not operate to prevent the immediate operation of the policy and his immediate insurance, and that for one half of said premium, Curtiss could, at some convenient time thereafter, make his note payable to the company, and pay the other half to said Norton. And that Curtiss, relying upon said information and induced thereby, acceded to said proposal, and agreed to take through Norton, as the defendants’ agent, the insurance proposed upon the terms aforesaid ; and that he then made an application for insurance upon his life and thereupon Norton agreed, that if his application should be accepted, his insurance should immediately take effect, as if the premium had in fact been paid by him; that Norton, would himself advance, or otherwise provide for, that part of the premium which was to be paid in cash, to be repaid by Curtiss to Norton at some convenient time thereafter, at which time Curtiss should also execute his note to the defendants for the other half of said premium.
    The plaintiffs claimed that such agreement with Norton, was equivalent to and in effect the same as an actual payment of said premium to Norton, or if not, that it amounted to a. waiver on the part of the defendants of their right to insist upon the payment of said premium before said policy should take effect; and that Norton had authority to make such agreement and waiver; and to prove that such arrangement and agreement were made, the plaintiff offered the testimony of Doctor Samuel B. Low, who, as the plaintiff claimed, was present at the making thereof.
    To the admission of this testimony the defendants objected, upon the ground that the same was contradictory to said written application, and that if such arrangement or agreement were in fact made, they were merged in the written contract between said company and said Curtiss, and constituted no part of the contract between said parties. But the court overruled the objection and admitted the testimony.
    The defendants contended that no such arrangement as was claimed by the plaintiff, was in fact made. Norton testified that he had received from them no instructions which differed from those of a printed circular, which embraced the following clause.
    “ You are not authorized in any case to receive the premium or any part thereof at the time of making the application, and not until the policy is received by you. Our policies are not binding on the company, until the agent through whom they are issued countersigns them and receives the premium. And in all cases therefore when there is any change in the risk by reason of sickness or accident. between the time of making the application and the receipt of the policy by you, you will withhold the policy, and report the circumstances to this office. The company reserve the privilege in all - cases of delivering the policy or not, as they please, after it has been sent to the agent; as the issue depends only upon the delivery by the agent, and receipt of the premium. " If from any cause policies are not taken by the parties applying, but remain in your hands for thirty days, you will return them to be cancelled.”
    Norton further testified that those instructions had never been dispensed with by him, that no part of the premium in the present case had ever been paid to him, that said policy had never been delivered to Curtiss, and that the agreement between him and Curtiss, regarding the note to be made to him for the cash part of the premium, was an individual transaction between him and Curtiss, with which the defendants had nothing to do: that he had never delivered any policy of the company, until the whole premium was paid as the rules of the company required, except in a few instances, when by a private arrangement between him and the applicants, he had himself advanced the cash part of the premium for them, and taken their notes for the same payable to himself individually, and their premium note to the company upon the delivery of the policy. And it appeared that by the regulations of the company, the premium notes given to the company were required to be on interest, and were liable to assessments.
    The plaintiff offered no direct evidence that the defendants knew of such arrangements as Norton admitted, unless his knowledge was to be deemed their knowledge. But the plaintiff claimed that, it being admitted that Norton had for several years been extensively engaged as their agent, from that and from the other evidence in the cause, their actual knowledge and approbation of such acts of Norton, as well as of his practice to make such arrangements, ought to be inferred and found by the jury.
    And the plaintiff, in his cross examination of Norton, inquired whether there had not been between him and Curtiss, a practice, under which fire insurance premiums had been charged by him to Curtiss in his general account, and applied upon Curtiss’ account against Norton for Curtiss’ work and other ordinary items of account. To this question the defendants objected, on the ground that the transactions or usages of Norton, as the agent of other insurance companies with Curtiss, ought to have no effect upon the rights of the defendants. But the court overruled the objection, and permitted the enquiry to be made, and Norton answered that he had no recollection of any such transaction.
    As to what transpired or was said, at the interviews between Norton, Curtiss and Low, testified to by said Low, Norton and Low were the only witnesses, and Norton was the only witness as to what transpired, or was said, at the interview between Norton and Curtiss, at the time when said policy was claimed by the defendants, to have been tendered to, and refused by Curtiss.
    Other testimony was introduced as to the extent of Norton’s authority as agent, and among other things the defendants introduced the printed circular before mentioned ; and the plaintiff introduced sundry printed instructions, and claimed that the same had been delivered to Norton for public circulation, and had been circulated by him, and that Norton had long before the application of Curtiss, been accustomed to make arrangements with applicants for policies, like that which the plaintiff claimed was made with Curtiss, and that the defendants were informed thereof, and made no objection thereto.
    The plaintiff claimed that the defendants had held out Norton to the public as their general agent, with full power to make such agreements as the plaintiff claimed had been made with Curtiss, and that the defendants were bound and concluded by such agreement.
    That under such agreement, said policy having been executed by the company and countersigned by Norton, became in the hands of Norton, immediately, an effective instrument for the use and benefit of Curtiss, in the same manner as if it had been in fact delivered over by Norton into the actual manual possession of Curtiss, and was in contemplation of law in the possession of Curtiss, if such possession was necessary to give it existence and effect.
    The defendants claimed that there never had been any waiver of the payment of the premium by them, before said insurance should become binding; that inasmuch as the premium had never been paid, the contract of insurance was not binding upon them; that the only contract between them and Curtiss, was that which was formed by the acceptance of the application of Curtiss with the accompanying certificates; that if Norton had the power to waive, and had waived the payment of the cash part of the premium before said insurance should take effect, this constituted no waiver, or dispensation of the necessity of paying the part which was to be paid by his note, before said insurance should take effect; and also that said policy had never been delivered and that no action could be maintained thereon until a delivery of the same.
    The court instructed the jury as follows : “ In order to give effect to a contract of insurance, it is not indispensably necessary that the policy should be actually delivered to the assured, but when an application has been made, and that application has been approved of, and accepted by the company or its proper agents for that purpose, and a policy has been thereupon made executed and completed, and notice of such execution given to the assured, the contract of insurance is complete, and the applicant is entitled to the policy. In this case the great question is, was a complete contract made.
    “ This, like all other corporations, speaks by its agents; so that when we enquire, what have the defendants done in relation to this contract, it is equivalent to the enquiry, what did Norton, within the scope of his authority, as the agent ^'the defendants, do in the matter. It is admitted that Norton was the general agent of the company for the pur'pose of procuring applications, and delivering policies and receiving premiums. And the plaintiff claims, that he had as the agent of the company, and in its behalf, authority to make the contract in question.
    “ The defendants deny that he had any authority to make such contract so as to bind them. Whether he had or not is a question for the jury, and upon the whole evidence, you are to determine what was the authority of Norton in this case.

      " If you find the contract to be, that Norton agreed that he would take the credit of Curtiss, and regard himself as having received the premium, making himself the debtor of the company for the amount, and Curtiss his debtor, and that nothing further remained for Curtiss to do, then I think the insurance took effect. Norton would thus become the debtor of the company, and Curtiss the debtor of Norton, and the company would be bound by the policy, from the time it was returned to and countersigned by Norton and notice given to the plaintiff. But if the contract was that Curtiss should give Norton his note before the insurance would attach, then the company could not be bound until the note was given. It seems to me that the case must turn upon the enquiry, what was the contract between Norton and Curtiss about the immediate payment of the premium, and whether what Norton said amounted to a waiver of such immediate payment.
    “ The defendants claim that the plaintiffocan not recover, because the premium has never yet been paid in any way, and it is agreed that it has not in fact been paid; but the plaintiff claims, that he has since his appointment as administrator o.n said Curtiss’ estate, offered to pay said premium, and has done what in law is equivalent to such pay'finent. And if you find that the plaintiff being the administrator on Curtiss’ estate, applied at the defendant’s office, prepared to pay, and offered to pay the premium, or, if being so prepared, he was informed by the authorized agent of the company, that the payment of the premium then would make no difference, that the loss would not be paid because the policy had not been delivered, or had not attached, it was in my opinion a waiver of the right of the company to refuse to pay the loss, because of such non-payment.
    The parol agreement of Norton, relative to the payment of the premium, in one sense forms no part of the final contract between the company and Curtiss, but in connection with the conduct of the parties, and the evidence of the usage and practice of the agent, if brought home to the knowledge of and acquiesced in by the company, it is evidence properly received, for the purpose of showing a waiver by the company of their right to insist upon a strict performance of their regulations in regard to such premium. Whether there was a waiver of the right of the company to insist upon the giving of the premium note before the policy should go into effect, is a question depending upon the same principles of law and of fact as the other question regarding the immediate payment of the money.
    The jury returned a verdict in favor of the plaintiff, and the defendant moved for a new trial.

      Hungerford and W P. Shipman (with whom was Philleo,) in support of the motion.
    1. Parol testimony to prove the supposed agreement between Curtiss and Norton, was not admissible, and ought not to have been admitted. The Glendale Woolen Company v. Protection Inswance Company, 21 Conn. R., 19. Higginson v. Dall, 13 Mass., 99. Stackpole v. Arnold, 11 Mass., 27. Warren v. Wheeler, 8 Met., 97. Jennings v. Chenango Insurance Company, 2 Denio , 75. Logan v. Bond, 13 Geo., 192. Chase v. Jewett, 37 Maine, 251.
    2. Said supposed parol contract did not constitute any part of the real contract between the parties, and the court ought to have so charged the jury, and in conformity with the claim made by the defendants.
    3. The court in charging the jury, that if they found the contract to be, that Norton agreed that he would take the credit of Curtiss, and regard himself as having received the premium, making himself the debtor of the company for the amount, and Curtiss his debtor, and that nothing further remained for Curtiss to do, that then the insurance took effect. And also in this, that the parol agreement of Norton, relative to the payment of the premium, in one sense formed no part of the final contract between the company and Curtiss, but in connexion with the conduct of the parties, and the evidence of the usage and practice of the agent, if brought home to the knowledge of and acquiesced in by the company, it was evidence properly received, for the purpose of showing a waiver of the strict performance of the regulations of the company, in regard to such premium.
    4. The court erred in charging the jury, that to give effect to the contract of insurance, it was not indispensably necessary that the policy should be actually delivered to the assured, but that when an application had been made, and was approved of by the company, or its proper agents, and a policy was thereupon made executed and completed, and notice of such execution given to the assured, the contract of insurance was complete, and the applicant was entitled to the policy ; and in omitting to charge the jury as claimed by the defendant, that a policy, to be effectual as such, must be actually or constructively delivered by the party executing the same with a view to its taking immediate effect without any other or further act, in order to render it a valid instrument, and the charge of the judge is no proper answer to the claim made.
    Delivery is always necessary to give effect to a deed.

      T. G. Perkins and Pardee, against the motion.
    1. The court admitted proof of the contract made with the assured by the defendants agent, not in any manner to contradict or vary the policy, but to prove that the “ payment mentioned therein had been made to the acknowledged satisfaction of such agent. 1. This proof was admitted in connection with evidence that such agent had full power in the premises, and with the acknowledged fact, that although the whole premium is referred to, and covered by the single word
      “ payment,” yet, as such agent, he was authorized to give credit; thereby showing that as to one half of the premium, the liability of the insured was regarded by the defendants as payment. 2. Parol evidence of the form which a payment may assume is not a variance or contradiction of a contract or 'deed, in which a payment is mentioned as a sum of money in hand paid. 3. The agents agreement to waive immediate cash payment, in contemplation of law is a payment, and as such answers all the terms and requirements of the policy, and the jury rightly found the fact of payment under the instructions given by the court, as to what facts, if the jury should find them, would constitute a payment.
    2. The question respecting the extent of Norton’s power as the agent of the defendants, was properly submitted by the court to the jury, as matter of fact with proper instructions as to the law touching facts. Sto. on Agency, § 73, 105,126, 133.
    3. The delivery of a policy of insurance is not indispensable to its validity. Loring v. Proctor, 26 Maine, 18. Blanchard v. Waite, 28 Maine, 51. Palm v. Medina Mutual Insurance Company, 20 Ohio, 529.
   Ellsworth, J.

It being agreed that the contract for insurance would not be binding until the premium of insurance was received or provided for, and there being no policy delivered to prove that this was done, it became necessary, on the trial below, for the plaintiff to show, that the contract was perfected, and that the precedent condition had been complied with, so that his intestate was entitled to demand and have the policy as agreed. This the plaintiff undertook to show; and offered evidence to prove that Norton, the agent of the defendants, (who did this business and the general business of insuring for the defendants in Suffield, where the parties lived,) solicited Curtiss the intestate, to become insured in their office ; that Curtiss declined being then insured and wished delay, because he had not money on hand to pay the premium, as the terms of the policy required; that finally Norton agreed that he would provide for the premium himself, and it should be considered and held, to be paid to the company, and the note for the balance be given after-wards, and that the contract should be held to be good, when the proposals were accepted in Hartford, and the policy should be made out at a future time, bearing date from that day. It would seem as if this arrangement, if made out by the proof to the satisfaction of the jury, was material to the plaintiff’s case, and would establish the validity of his claim to a proper policy of insurance. This arrangement is one of daily occurrence where parties agree for an immediate insurance, but time is given for the payment of the premium, and the execution, and delivery of the policy of insurance, — the thing to be done is agreed to be considered as done, so that the obligation to pay the premium is the payment, and the obligation to make out a policy is virtually the policy itself.

Now the precise objection of the defendants is this; the provision premium paid” being in the written proposals, it is said that parol evidence can not be received to show that the insurance was to take effect before the premium was received, as this would be to vary the terms expressed in the writing. But this is not so. The principle of law is well enough stated, but clearly it has no application to this case. The evidence does not contradict or vary the writing, but is in harmony with it; for the mode of payment, or its legal equivalent or satisfaction, is no part of the writing as claimed; which is the real question in dispute. Nor is the parol agreement in the nature of a previous conversation merged in a written contract afterward made, and therefore to be held to be the exclusive evidence of what the parties have finally settled upon. The mode of payment, strictly, need not be any part of the contract of insurance; it may be collateral to it, and proveable as made before, or after, or at the time of the writing, unless the writing declares what the mode should be, which this does not.

We might go further, and deny that the words in the proposals, “ and I do further agree that the assurance, hereby proposed, shall not be binding on said company, until the amount of premium as stated therein, shall be received by said company, or an accredited agent,” make the payment of the premium a condition precedent, as was claimed in the argument, because those words are no part of the policy either by recital or reference. They are part of a writing following the proposals, which says “ that the preceding proposal answer and statement marked A. is correct, and shall be the basis of the contract between the parties.” The paper referred to states certain facts, such as the age of the applicant, his place of residence, his occupation, his health, &c., which statements must be true, or the policy never takes effect; but the clause under consideration is not a proposal answer or statement; it is a collateral agreement, fixing the time when the risk shall commence by fixing the time of payment of the premium.

Besides, it is every day’s experience and our reports are full of such cases, for persons to be held to have waived provisions and conditions inserted in contracts for their own special benefit, and therefore to be estopped from insisting upon that which is inconsistent with what they have said and done to affect others. The defendants were called upon to speak at the proper time, and can not now, after their silence or their co-operation, be permitted to disappoint others, who had a right to give them their confidence at the time. Curtiss supposed the premium was agreed to be considered as paid by the agent, when the proposition for insurance was accepted at Hartford. The jury have found that both he and Norton so understood it. And although the business was not done with proper care and attention, yet it was in fact done, and done at the request of the agent, who proposed to Curtiss to have the contract closed at the time and in the manner it was closed, and we can not permit the defendants to deny or repudiate the act of their agent, if indeed he was their agent in the transaction; which brings us to the next point in the argument.

The defendants admitted that Norton was, and had been their general agent for getting insurances in Suffield for many years before; and further, his manner of doing their business, the jury find, was well known to them and not disapproved of by them; but the defendants deny his authority in this instance to dispense with the payment of the premium on the making of the contract. This is a question of fact, and the existence and extent of this authority is just the question which the plaintiff claimed should go to the jury, and so the court viewed it in their charge to the jury; and in the course taken by the court, we can not see any error or ground of complaint. The plaintiff insisted that, it being admitted that Norton was the general agent of the defendants, as already stated, the jury should infer from that fact, and much other evidence which was before them, that he was fully authorized to do as he had done. They alluded particularly to the printed circular and commission sent by the defendants to their agents throughout the country, and to pamphlets and books accompanying them, and the knowledge which the defendants had of the manner in which Norton and their agents generally did their business abroad, and the fact that the defendants had never expressed any dissent to this continued course of things. We can not say that the jury did wrong in coming to their eonciusions. Little evidence of Norton’s authority would be necessary, after the admission that he was, and long had been, the agent of the company, to transact their business in Suffield, and certainly not as to his authority to agree that he would advance the premium himself, and charge it in a private account to the applicant, and to do whatever else was incidentally necessary and customary, in business of that nature. The powers of insurance agents locally established, are in the main pretty uniform and general in this country. These agents are furnished with blank policies, which need only to be filled out, and countersigned and delivered, to perfect the contract of insurance, though in some cases there are restrictions and conditions, which persons who ask for insurance must take cave to observe and follow, or they will not obtain a valid insurance. The extent of these powers has too often been discussed and too often decided, to need our comments, and may be found in all the elementary books and in numerous reported cases. We refer to one ease only which was not cited on the argument, though the principle is familiar to every respectable lawyer, New York Central Ins. Com. v. Nat. Pro. Ins. Com., 20 Barbour, 469. One of the conditions of the policy there was, that no insurance should be binding until the actual payment of the premium. The money was in the bank, where the agent was in the habit of making his deposits, deposited to the credit of the insured. The cashier told the agent of the insurers, at the time the arrangement for the insurance was made, that he could have the money. The agent directed him to let it lie, saying that when he wanted the money, he would draw for it. It was not in fact drawn by him until after the fire. Held, that the agent had waived a strict compliance with the condition, and that he had authority to do so. A like principle was settled by this court in Peck et. al. v. The New London Mutual Insurance Company, 22 Conn. R., 575, where we held that a local agent could waive a condition contained in the policy of insurance.

But it is said, even if Norton could agree that the cash part of the premium should be considered as paid, by being charged in the agent’s private account, this can not apply to the note to be given for the balance of the premium. We think the judge left this point in a correct manner to the jury in his charge. He instructed them, that the question depended on the same principles of law and fact, as the question respecting the payment of the cash part of the premium. This is correct.

It is further claimed that the court misled the jury by informing them, “ that when an application has been made and that application has been approved and accepted by the company, or its proper agents for that purpose, and a policy has been thereupon made, executed and completed, and notice of such execution given to the assured, the contract of such insurance is complete, and the applicant is entitled to the policy. It is said that the jury would naturally understand from thiá, that the payment of the premium, or any arrangement for its payment, is unimportant, if only a policy is made out, and ready to be delivered on payment. This objection will vanish when it is remembered that the remarks were made with reference to the objection, that there would be no contract of insurance unless a policy was executed and delivered, in which sense the remarks were right and proper, for the contract of insurance may be perfected, and become mutually obligatory, without a policy executed in form and delivered, and we can not think that the jury could have understood that the payment of the premium was not necessary before the policy, or the contract of insurance could take effect, if it was not waived, or considered as paid.

The plaintiff in his cross-examination of Norton, enquired about his practice with Curtiss, as to crediting him in account with premiums in other insurances. The answer being in the negative, the reception of the evidence, if incorrect, lays no foundation for a new trial; for the question and answer did not affect the verdict.

' The motion for a new trial for a verdict against evidence, which is an address to the sound discretion of the court, we do not grant. We add only a word to what we have already said. There were two main facts in dispute, which the jury found for the plaintiff; first, the arrangement between Curtiss and Norton, that the premium should be considered as provided for, and second, the authority of Norton to do this act. These questions being settled in favor of the plaintiff, he was entitled to recover, and we see nothing in the evidence which makes us believe that the verdict is against evidence.

We do not advise a new trial.

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

New trial not to be granted.