author: Waite, C, J.

text:
    Sheldon and others vs. The Centre School District.
    The legislature having conferred upon the inhabitants of school districts, the power of determining the kind of school-houses requisite for their use, and the amount of funds necessary to defray the expenses incident thereto, courts of justice ought not to interfere with the exercise of that power, except in eases where it has been manifestly abused.
    Where a school district erected at a cost of $2,500, a school-house with a hall on the second floor, and voted to levy a tax to defray the expense thereof, and on a petition of a portion of the tax payers of the district, praying for an injunction against the collection of such tax, on the ground that such expenditure was ¡ilegal, the court found that the house with th- exception of the hall, was not more than the convenience of the district required for school purposes ; — it was held, that aside from any question as to the propriety of erecting said hall, the proceedings of the district were not illegal as an unwarrantable abuse of power or as involving an extravagant and improper outlay of money.
    Wliere it was found that the expense of such hall was about one-fifth of that of the whole building, and that it would be useful and convenient for holding district school meetings and school exhibitions, but that it was unusual for districts to have separate halls for such purposes, and that the district would have been reasonably well accommodated without it; it was held, that these were legitimate objects for which provision might be made, and that school districts ought not to he so restricted as to prevent improvements in school houses, and that much must be left to the inhabitants in determining what conveniences shall be provided for schools.
    Held also, that the vote authorizing the building of such school-house was not void, because it specified among other uses of the hall, that of holding school society meetings and lectures therein.
    Held also, that even if the vote imposing said tax were illegal, each of the plaintiffs in the bill aforesaid had an adequate remedy at law, and therefore that such bill ought to be dismissed.
    The mere saving of the expense of separate suits at iaw, is not a sufficient reason for uniting in a bill in chancery, to obtain an injunction against the doing of an act which would give each of the plaintiffs a right of action at law.
    This was a bill in chancery, brought by thirty-nine persons, residents and tax-payers in the Centre District, West School Society, in the town of Suffield, alledging that the district had imposed a tax of seventy-five cents on the dollar, on the levy of 1854, for the purpose of defraying the expense of building a school-house, fence, well and for other necessary expenses and liabilities of the district; that the votes of the district in imposing the tax and directing the building of the house, were illegal and void — an unreasonable and an unwarrantable abuse of power, on the part of the district, and an extravagant and improper appropriation of money, and praying for an injuction against the collection of the tax, and any proceedings in building the school-house at the expense of the district.
    The cause came on for a hearing before the superior court holden at Hartford, at the March term 1856, when that court found the facts, and reserved the case for the advice of this court. The material facts found by the court are the following:
    In March 1855, the district in a legal meeting, passed unanimously, or nearly so, a vote to build a school-house with two rooms on the lower floor, with a space between, and a hall overhead for the purpose of holding school society and school district meetings, for the exhibition of schools, for a select school, lectures, &c., and also a wood shed and other necessary out houses.
    Soon after the passage of that vote a plan of the house to be constructed, was presented to the district and all the legal voters present, with but few exceptions were in favor of the plan, and resolved that the house should be constructed in accordance therewith.
    At a legal meeting holden in April following, a resolution was presented to rescind the former votes, when eighteen of the voters were in favor of rescinding and thirty-nine against it.
    In July following, the district at a legal meeting passed a vote to levy and collect a tax of seventy-five cents on the dollar, to defray the expenses of building the house and its appurtenances, and the other expenses connected therewith. The amount of the tax thus laid was $2,874.60, of which sum the plaintiffs were taxed $1,346.08 and non-residents $286.21.
    The house and its appurtenances were constructed at an expense of $2,500, of which sum the hall cost about $500.
    The number of scholars in the district, between the ages of four and sixteen, on the first of January 1855, was seventy-two.
    The bringing of the plaintiff’s bill, prevented numerous suits at law, which would have been brought to test the legality of the vote of July 1855

      The court further found that no unnecessary expenditure was made in the construction of the house or its appurtenances, so far as the style and manner of finish was concerned; that the house with the exception of the hall, did not exceed the wants and conveniences of the district for school purposes; that with respect to the hall, it was useful and convenient for the purpose of holding district school meetings, the exhibitions of district schools, and perhaps other school purposes that might be necessary from time to time, as the wants of the district should require, although it is unusual in this state, for districts to have halls for such purposes; and that the district would have been reasonably well accommodated without the hall.

      Perkins and Philleo, for petitioners.

      Hubbard, for respondents.
   Waite, C, J.

The statute in force at the time when the votes were passed by the defendants directing a school-house to be built, and laying a tax to defray the expense, authorized every school district to build and repair school-houses, supply the same with furniture and appendages, and lay taxes for such purposes; and those provisions are substantially retained in the subsequent revision of the school law.

To the inhabitants-of a school district, the legislature has confided the power of determining the kind of school-house and other accommodations which they need for the use of the scholars in the district, and the amount of funds which it may be proper for them to raise to defray the necessary expenses; and courts of justice ought not to interfere with the exercise of that power, unless in a case where it has been manifestly abused.

Although in the present case, the building erected is somewhat expensive, considering the amount of taxable property belonging to the district, and the tax imposed is rather onerous, yet all objection to the legality of the proceedings in building the house and appurtenances, with the'exception of the hall, is removed by the finding of the superior court, which is, that they do not exceed the wants and conveniences of the district for school purposes.

To that extent the district clearly had a right to go under the authority conferred by the legislature; and it is not for any court to say that a district shall not build such a house as their wants and convenience require.

And then with respect to the hall in the second story, the expense of which is found to be about one-fifth of the whole expense of the building and the other accommodations, it is found that it will be useful and convenient for the purposes of holding school district meetings, exhibitions of district schools, and perhaps for other purposes, that may become necessary from time to time, as the wants of the district may require.

All these are legitimate objects for which the district may make provision, in a house which they are erecting for a school-house. And although it is further found, that in this state, it is unusual for districts to have separate halls for such purposes, and the district would.have been accommodated well without the hall, jret it will not do to say that no improvements shall be made upon school-houses already built, and no greater accommodations allowed than such as have already existed.

Much must be left to the discretion of the inhabitants of a school district in determining what amount of accommodations shall be allowed their scholars, when, as in this case, the number is large, exceeding seventy.

But it is said that one use of the house, as specified in the vote, was for holding school society meetings. Undoubtedly the district had no power to lay taxes to build a house solely for that use. But the mere circumstance that permission is given to hold such meetings in a school-house, will not necessarily render a vote to build the house illegal and void. Such meetings are not often held, generally not oftener than once in a year, and at present not at all, as school societies are now abolished by statute.

Although a school district has no power to levy a tax for the purpose of building a meeting house, yet a practice to some extent prevails in many of our country districts, of holding religious meetings in school-houses in the evenings and occasionally on the sabbath, and so long as they do not interfere with the legitimate use of the houses for school purposes, nor prejudice the interests of the inhabitants as members of the district, objections are not often made to them. No court would hold a vote of a district, directing a suitable and proper school-house to be built, void, merely because it authorized religious meetings to be held in it in the evenings. And yet upon a proper case, it might prohibit the use of it for improper purposes.

It is further said that the vote of the district authorized the use of the hall for lectures which may mean what are sometimes called lyceum lectures for the benefit of grown persons. But no such use is alledged or found to have been proved. For aught that appears, the lectures intended, were to be upon chemistry, mineralogy, botany, or the like, suitable for the scholars of the district, and if the object was to give the scholars of the district advantages greater than have heretofore been enjoyed, the disposition of the district is rather to be commended than rebuked.

But even if the intention of the district was to allow lectures to grown persons to be occasionally delivered in the hall, for reasons already stated, the votes of the district would not on that account be void.

But again if the vote of the district, imposing the tax is illegal and void as the plaintiffs alledge and claim, then each of them have adequate remedy at law, and there is no necessity for a resort to a court of chancery. The mere saving of the expense of separate suits, is no ground for their uniting in a bill in chancery to obtain an injunction against’ the doing of an act, which would give each of them a right of action at law.

Our advice to the superior court therefore is, that the bill be dismissed.

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

Bill dismissed.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    O’Brien vs. Galagher and another.
    It seems to be the inclination of courts in the United States to consider the order in respect to time in which the testator and witnesses put their names to a will, as immaterial, provided the instrument is in all other respects legally executed.
    Where witnesses called to attest the execution of a will, subscribed their names as witnesses thereto, and the testator afterwards in their presence duly executed the same, all which was done at one time, and for the purpose of perfecting it as a will; it was held, that such will was legally executed.
    This was an appeal from a decree of the court of probate for the district of Hartford, approving of the last will and testament of Edward Galagher.
    The cause by consent of parties, was heard before the Hon. Wm. L. Storrs, as a judge of the superior court, who made a special finding of the facts, and reserved the case for the advice of this court.
    From that finding it appears, that on the 25th day of August 1855, Galagher being the owner of real and personal estate, and sick, sent for one Duffy, a clergyman of the Roman Catholic church, to officiate as such clergyman, and after he had done so, Galagher requested him to draw his will. Duffy accordingly drew it in conformity with Galagher’s instructions, and then called two other persons into the room to witness the execution of the will, to whom he read the instrument which he had drawn up. Duffy and these two persons then put their names to the instrument as witnesses, and Galagher afterwards made his mark or signature. All that was said and done on that occasion, was said and done in the presence of the testator and witnesses, occupied but a few minutes, and was without interruption or the transaction of any other business.
    Robinson, for the appellant.
    The instrument in question was not a will at the time of the attestation, not having been executed by the testator.
    In England, it has been uniformly decided, that a will attested before being signed, should not be admitted to probate.
      Olding's Case, 2 Curt. Eccl. R., 865. Ann Allen's Case, 2 Curt. Eccl. R., 331. Byrd's Case, 3 Curt. Eccl. R., 117. Cooper v. Bockett, 3 Curt. Eccl. R., 648. Playne v. Scriven, 1 Rob. Ecc. Rep., 772. Thompson v. Hull, 14 Eng. Law & Eq., 598.

      W. N. Haiuley, for the appellee.
    1. The will in question was duly attested, as the time when witnesses affix their signatures to a will, whether before or after the testator affixes his, is not material, all other acts being legally done. 3 Greenl. Cruise, 49. Swift v. Wiley, 1 B. Monr., 117. Pollock v. Glassell, 2 Grat., 439. Vaughan v. Burford, 3 Bradford R., 78.
    2. It is not material what words are used by a testator in publishing his will, if they are such as convey to the witnesses the fact that it is his will. 3 Bradford R., 78. 3 Greenl. Cruise, 50, and authorities their cited.
    3. Nor is it material whether a testator publishes his will before or after its execution. Authorities supra.

   Waite, C. J.

The question in this case, is whether the will of Galagher was legally executed, the subscribing witnesses having put their names to it before it was signed by the testator.

Several cases have been cited from the ecclesiastical courts in England, in which it was holden that wills so executed were invalid. The reason assigned is, that the instrument does not become a will, until signed by the testator, and therefore putting the names of the witnesses to the instrument, before it is signed by him, is not the attestation of the will which the law requires.

These decisions are of modern date, as those courts have jurisdiction only of wills of personal property, and it is only by recent statutes in that country, as well as in this, that such wills are required to have witnesses; devises of real estate being proved in the common law courts.

We have not been referred to any case in those courts, nor have we been able to find one in which this question has been made. And it is strange that no such case can be found, if the impression of the legal profession was against the validity of a will executed in the manner this was.

So far as the question has been noticed in the American courts, the inclination seems to have been, to consider the order in which the testator and the witnesses put their names to the will as immaterial, provided the instrument is in all other respects legally executed.

We are not entirely satisfied with the decisions of the English ecclesiastical judges, whose opinions are very brief, and apparently given without a very full examination of the question.

The general and regular course undoubtedly is, for the testator, in the first place to sign and execute the will on his part, and then call upon the witnesses to attest the execution, by subscribing their names.

But where as in the present case, witnesses are called to attest the execution of a will, and being informed what the instrument is, subscribe their names thereto as witnesses, and the testator on his part and in their presence duly executes the instrument as his will, and all is done at one and the same time, and for the purpose of perfecting the instrument as a will, we can not say that it is not legally executed merely because the names of the witnesses were subscribed before that of the testator.

We therefore advise the superior court to affirm the decree . of the court of probate establishing the will.

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

Decree of probate affirmed.


author: Seymour, J.

text:
    Dodd et al. vs. City of Hartford.
    A bill in chancery will not lie to restrain a city corporation from enforcing assessment warrants against personal estate, for the expenses of a public improvement, although the assessment and warrant may be illegal and void: as the legal remedy in such case is adequate*
    Although numerous separate actions, each brought by a different party, may be necessary at law to recover moneys collected of such parties under an illegal assessment, chancery will not interpose for the mere purpose of consolidating such actions and thereby preventing a multiplicity of suits; inasmuch as no property right or franchise held by the petitioners in common, would be affected by enforcing the tax, and as no one of the petitioners could be injured by the multiplication of actions to which other persons only would be parties.
    Courts of equity ought not, except upon the clearest grounds, to interfere wi.h the speedy collection of public taxes.
    This was a bill in chancery brought by James Dodd and thirty-two others in behalf of themselves and certain other persons named in a schedule annexed to the bill against the mayor aldermen common council and freemen of the city of Hartford, praying for an injunction restraining the defendants from enforcing the collection of certain assessments for the expenses of constructing a sewer within said city.
    The bill alleged substantially that on the 14th day of June 1855, the mayor of said city issued a warrant of distress against the goods and chattels of the plaintiffs, for the purpose of compelling them to pay their assessments for the construction of said sewer, which warrant had been levied on the goods and chattels of the said Dodd, and which the respondents were about to levy on the property of the other petitioners and those in whose behalf they appeared.
    The bill then proceeded to allege that the sewer named in the warrant had never been laid out by the common council, nor constructed in the manner specified in the warrant, nor had the proceedings by law required to be adopted in laying out constructing and building sewers and assessing and apportioning the expenses thereof in said city, been adopted in relation to said sewers, and that for those and other reasons said warrant was illegal and void.

      The bill also averred that said assessments were illegal and invalid, because the statute law of the state under the authority of which they were pretended to have been made, was invalid and void ; and because the same had not been made in conformity with said statute, nor with the by-laws of said city, nor with the votes and proceedings of the common council of said city.
    That the said James Dodd had commenced an action of trespass against the said mayor and collector of said city, to recover damages for the seizure of his goods and chattels under said pretended warrant, which action was then pending before the superior court for the county of Hartford, and that unless the court should interfere by injunction, the complainants other than said Dodd, and the several persons to the number of three hundred and upwards named in said warrant, would be compelled to commence and prosecute like actions at law in separate suits for like seizure of their goods and estate, for the purpose of enforcing payment of said assessment; that said actions would cause great expense and vexation and greatly disturb the peace of the community.
    Therefore, in order to prevent multiplicity of suits, and to determine the rights of the parties, the "plaintiffs prayed the court to enjoin said mayor, aldermen, common council and freemen, from in any manner enforcing or undertaking to enforce the payment of said assessments, and from in any manner compelling the complainants to pay the ^expenses incurred in building said sewers, and from making any distress under said warrant, or any other warrant issued for the collection of said assessment or said expenses.
    To the plaintiffs’ bill the defendants demurred, and the questions of law arising upon the demurrer were reserved for the advice of this court.
    Judges Storrs, Hinman and Ellsworth, being disqualified by interest from sitting on the trial of this cause, Judge Seymour of the superior court was called in under the statute of 1855, and sat with Judge Sanford.

      Fellowes and Hubbard, for petitioners.
    A city ordinance prescribing notice of the assessment of taxes must be complied with or the assessment is illegal. Lowell v. Wentworth, 6 Cush., 221.
    An assessment on the “ estate” instead of upon the owner or occupant by name is not valid. Platt v. Stewart, 8 Barbour, 493.
    Chancery will not grant an injunction to protect a party against a multiplicity of suits, until his right to such protection is established by a suit at law. Bills of peace have been sustained where the questions were questions of fact or mixed questions of law and fact. West v. Mayor of New York, 10 Paige, 539.
    Bills of peace are allowed, either where the plaintiff has already established his right at law, or where the persons who controvert it are so numerous as to render an issue indispensable to embrace all the parties concerned and save multiplicity of suits. Eldridge v. Hill, 2 Johns. Ch., 282.
    Perpetual injunctions will be decreed where the same question has been frequently litigated in the same manner, or where it is likely to be contested in a multiplicity of suits. 2 Waterman’s Eden on Injunctions, 414, note 1. 2 Story’s Equity Juris., § 853.
    One class of cases to which this remedial process is properly applied, is where there is one general right to be established against a great number of persons. And it may be resorted to, where one person claims or defends a right against many, or where many claim or defend a right against one. 2 Eden on Injunctions, 415, note. Jeremy on Eq. Juris., B. 3, ch. 2, § 1, p. 343. Eldridge v. Hill, 2 Johns. Ch. R., 281. Alexander v. Pendleton, 8 Cranch., 462, 8.
    In such cases courts of equity interfere to prevent multiplicity of suits. New Elm Hospital v. Andover, 1 Vern., 266. Hanson v. Gardner, 7 Ves., 309, 10. Ware v. Hornwood, 14 Ves., 32, 3. Dilley v. Doig, 2 Ves., 486; Mayor of York v. Pilkington, 1 Atk., 282. Leighton v. Leighton, 1 P. Wm., 671. Trustee of Huntington v. Nichols, 1 Johns. Rep., 166.

      The court has jurisdiction to interfere by injunction to restrain public officers, proceeding illegally and improperly under a claim of right or to prevent multiplicity of suits. Mohawk and Hudson R. Co. v. Archer, 6 Paige, 83. Cooper v. Alden, Harring. Ch., 72. Burnett v. Cincinnatti, 3 Ham., 72. Mower v. Kiss, 6 Paige, 262.
    Ordinances passed by the city are as binding as if they were acts of the legislature. City of Boston v. Shaw, 1 Met., 135. Goddard v. Boston, 16 Pick., 504
    If part of a tax is illegal the whole is. Rider v. Robbins, 13 Mass., 284 Libby v. Burnham, 15 Mass., 146.
    City ordinances must be adhered to in the mode of execution. Lowell V. Hadley, 8 Met., 195.
    A highway must be laid out with given termini. Beardsly v. French, 7 Conn., 127. Stone v. Cambridge, 6 Met., 270. Hinckley v. Hastings, 2 Pick., 164. Hicks v. Fisk, 4 Mason, 310. Herrick v. Stover, 5 Wend., 580.
    There must be an adjudication that sewers were necessary. Jones v. Andover, 9 Pick., 153.

      Robinson and Eaton, for respondents.
    I. The bill presents no case for the interference of a court of chancery. 1. The petitioners have a complete and adequate remedy at law. A tax, illegally exacted, may be recovered in an action of assumpsit. Atwater v. Woodbridge, 6 Conn., 223. Parker v. Redfield, 10 Conn., 490. Landon v. Litchfield, 11 Conn., 251. 2. The exercise of the extraordinary power of injunction ought not to be extended. Bee remarks of Chief Justice Waite in Whittlesey v. Fishkill R. R. Co., 23 Conn., 433. It should only be invoked where the injury apprehended is really irreparable in its character, and the right clear. Chancery, therefore, will not restrain a trespass to personal property, unless such consequences will ensue as the law can not redress. Johnson v. Conn. Bank, 21 Conn., 148. 3. Courts of chancery will not enjoin against the collection of taxes irregularly or erroneously assessed. Livingston v. Hollenbeck, 4 Barb., 9. Van Ren
      selaer v. Kidd, 4 Barb., 17. Betts v. Williamsburgh, 15 Barb., 255, 262. This doctrine prevails especially, in cases where the tax is to be enforced against personal property. McCoy v. Chilicothe, 3 Hamm., 380. Mechanic's Bank v. Debolt, 1 Ohio St. Rep., 591. Williams v. Detroit, 2 Mich., 560. To enable individuals to pray out injunctions against public taxes, upon the mere suggestion of technical flaws, would be an alarming interference with the vital functions of government. Methodist Church v. Baltimore, 6 Gill., 391. 4. But the court is urged to interpose, in order to prevent a “ multiplicity of suits; ” a suggestion of the bill which is said to be an ample foundation for chancery jurisdiction, independently of all other considerations. As such multiplicity will be due only to the great number of the plaintiffs, it is virtually argued, that if the parties to a controversy are numerous, courts of chancery will divest the courts of law of their jurisdiction. This view of the doctrine referred to is novel. It is only in certain rare and anomalous cases that the prevention of a multiplicity, not multitude, of suits is an. independent ground of equity jurisdiction. The wanton repetition of trespasses, in the face of a right established by law, and malicious attempts to relitigale such a right, will be restrained. Equity will also interfere, where the parties who controvert a right are so numerous, as to render an issue under the direction of the court indispensable in order to embrace all of them? Eldridge v. Hill, 2 Johns. Ch., 281. Tenham v. Herbert, 2 Atkyns, 483. The general language just cited is subject to an important qualification. The “ right ” controverted must be of a peculiar character. It must be a cdmmon.right, enjoyed in common by several persons, and in such a manner that the invasion of the right of one is really an invasion of the right of all; such as a right of fishery, for instance. Adams Eq., 199, 200. Story Eq. Jur., §§ 854, 855, 856. There is no such doctrine extant, as that chancery will interfere to settle questions of law, merely because they concern a large number of individuals. Lapin County v. Hart, Harring. Ch., 157. Suits in equity will not be entertained for the mere purpose of consolidating actions, Peters
      v. Prevost, 2 Paine’s Cir. C. Rep., 64. If the tax had been collected, it would hardly be claimed that all the persons taxed could join in a chancery suit for its recovery. 5. Equity will not undertake to prevent a multiplicity of suits, where the claim of right rests on a mere question of law, as, for instance, the legality of the proceedings of a municipal corporation. West v. Mayor of Albany, 10 Paige, 539.
    II. The sewer act is constitutional. Nichols v. Bridgeport, 23 Conn., 206, 7. Griffin v. Mayor of Brooklyn, 4 Comst., 419. Smith v. Aberdeen, 25 Miss., 458. Scovill v. Cleveland, 1 Ohio St. Rep., 126. Washington v. Nashville, 1 Swan, (Tenn.,) 177.
    III. The proceedings of the comí of common council in laying out the sewer were conformable to law.
   Seymour, J.

This is an application to the superior court as a court of chancery, to restrain the defendants from enforcing the collection of certain assessments for the expenses of a sewer.

The petitioners complain that these assessments and the warrants issued for their collection are illegal and void, and that the petitioners and other persons to the number of three hundred and upwards, will be compelled to commence separate suits, for the damages they will suffer if are executed, and that thus the peace of the^jofijsissif be disturbed, and expense and vexation wiMemíue, unless injunction be granted to restrain the city from assessments. t „

The defendants demur to the petition aljd arising upon the demurrer are reserved for the^fcdvice of court.

We are of opinion that the court has no jurisdiction to interpose by way of injunction as prayed for. No property, right or franchise held by the petitioners in common is claimed to be affected by the proceedings of the city. The assessments are against the petitioners severally, not against them jointly. If the warrants are collected, and any of these parties have occasion to bring suits at law, their suits must be several and separate; they certainly can not join in an action at law against the city, or against the collector.

In respect to each one of these petitioners, taking his case separately, it is difficult to see why he has not adequate remedy at law. There is no averment that the real estate of any of the parties has been or can be levied upon. The warrant authorises the taking of personal estate only. No irreparable injury can arise from the levy. If the proceedings of the common council are irregular and void, as the petitioners claim they are, an action at law will lie to recover all the damages which shall be sustained by the levy, and the question of the legality of the assessment will then be tried in its appropriate forum, a court of law.

The claim most pressed by the petitioners, is that the court ought to entertain jurisdiction in order to prevent a multiplicity of suits. But no one of these petitioners has any interest in the suit which another of them may be called upon to institute. They can not individually complain that others are compelled to sue, for they have no share in the expense or vexation of each others suits.

The multiplicity of suits which the petition seeks to avoid, does not affect injuriously any one of the petitioners. No one of them has occasion to expect any such multiplicity affecting himself. One suit is all that any one of them has to fear and the object of this bill would seem to be, to relieve these parties severally from that one suit, and to consolidate the apprehended litigation. In other words, to enforce a consolidation rule, by means of the extraordinary powers of a court of chancery. If the assessment were against one person only, it is not claimed that he could transfer from a court of law to a court of equity, the question of his liability. But how is the condition of any one of these petitioners the worse, because others are assessed for the same improvement. It would undoubtedly be convenient to try the questions relating to these warrants in one comprehensive law suit. But it does not seem to the court that the case presented by the bill is one of such irreparable injury, or of inadequate relief at law, as to warrant us in taking it away from the legal tribunals.

There are also reasons of policy, founded on the necessity of speedy collection of taxes, which ought to prevent a court of chancery from suspending these proceedings, except upon the clearest grounds. We therefore advise the superior court that the demurrer is well taken, and that the petition be dismissed.

In this opinion, Sanford J., concurred.

Bill to be dismissed.


author: Storrs, J.

text:
    The Collins Company vs. Marcy.
    A verbal license to erect upon the land of another, an addition of a substantial character to a building, is a grant of an interest in land within the statute of frauds.
    Such license is revocable at the will of the licenser, although it is a justification for entering and erecting such addition, before its revocation.
    The expenditure in such erection, of moneyuwliieh would be lost by the determination of such license, does not render the license irrevocable.
    This was an action of ejectment for a parcel of land situated in the town of Canton, and was tried before the superior court for Hartford county, at the October term, 1855.
    On the trial, upon the plea of the general issue, the plaintiffs claimed title to the demanded premises under a deed dated November 21st, 1834.
    The defendant owned and occupied a piece of land adjoining the demanded premises, upon which he had a building occupied as a dwelling-house and store, which was located near the division line, between the land of the parties. About the year 1843 the defendant constructed an addition to said building of a substantial character, which was extended upon the land in question, for a distance of about seven feet. The defendant claimed and offered evidence to prove, that before said building was extended upon the land of the plaintiffs, they gave him a verbal license to construct such addition, and that it was constructed with their knowledge and consent, and had been continued on said land with like consent, from the time when it was so constructed, until the notice to remove it hereinafter mentioned. The defendant further claimed and offered evidence to prove, that said license was unrestricted and unconditional in its terms, and that’ in consequence thereof, he constructed said addition to said building in a permanent and substantial manner, and at an expense of more than one thousand dollars.
    The plaintiffs claimed that said license was given with a view to the erection of a temporary building only, and that the precise place of the division line not being known to them, they did not observe that the defendant’s building encroached on their land until after it was completed, and that when the license was given they reserved to themselves the right to revoke it at pleasure.
    It was further proved by the plaintiffs, that about six months before the commencement of the present action, they gave notice to the defendant to quit the demanded premises, and made a formal re-entry with claim of title, and that the defendant refused to vacate the same.
    The defendant claimed that if the facts respecting the license and construction of said building were as claimed by him, the license could not be revoked, so as to compel the defendant to remove said building and relinquish the possession of the premises in question, and so as to enable the plaintiffs to maintain ejectment therefor; and requested the court so to charge the jury.
    But the court refused to charge the jury as requested by the defendant, and instructed them, that although the license was unconditional and unrestricted in its terms, the plaintiffs might revoke and terminate the same, make a reentry on the premises, and maintain ejectment against the defendant, unless he surrendered the possession within a reasonable time after demand.

      The jury returned a verdict for the plaintiffs, and the defendant thereupon moved for a new trial, for a misdirection.

      Welles and Chapman, in support of the motion.
    1. The license does not convey, and does not purport to convey, an interest in land, and therefore is not within the statute of frauds.
    2. The license has been executed, and money expended under it; and it is therefore irrevocable.
    3. It is not necessary that the license should convey an interest in the land, to render it irrevocable.
    4. Where a license is in the nature of a continuing authority, and is not exhausted as soon as exercised, there may be no difference between the substantial effect of holding it irrevocable, and admitting that an actual interest has passed to the party to whom it has been given. 2 Am. Leading Cases, p. 737, et seq. Benedict v. Benedict, 5 Day, 464.

      T. C. and C. E. Perkins, against the motion.
    1. A permission to construct a building on the land of another, is a grant of an interest in land within the statute of frauds. 11 Mass., 533. 5 Day, 464.
    2. If it is given by parol, it is a mere license, revocable at the will of the licenser. 5 Day, 464. 23 Conn. R., 214.
    3. The fact that the license has been executed at some expense, does not constitute an estoppel. 5 Day, 464. 23 Conn. R., 214.
    4. If the defendant has any remedy, it is in chancery, and not at law. 5 Day, 464. See also 2 Gray R., 302.
   Storrs, J.

There can be no doubt that the right to occupy the demanded premises, with the building thereon, which the defendant claimed under the verbal license of the plaintiffs, would constitute an interest in land, and that, therefore, under the provisions of our statute of frauds, it was not conveyed to. the defendant. Such license was revocable at the will of the plaintiffs, although it was a justification for what was done by the defendant under it before its revocation.

But the ground for a new trial on which the defendant mainly insists, is, that as he, by erecting his building, acted and expended his money under the license, and such expenditure would be lost by the subsequent determination of it, it was thenceforth irrevocable by the plaintiffs, on the ground that they were precluded thereby from disputing its validity as a grant. The recent case of Foot v. The New Haven and Northampton R. R. Co., 23 Conn. R., 214, in which we had occasion to examine this precise question, is decisive against the defendant on this claim. If the defendant has any remedy, it is not at law, but in equity.

A new trial is not advised.

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

New trial not granted.


text:
    The Collins Manufacturing Company vs. Marcy.
    A condition in a deed that “ in case any ardent spirits, cordials or wines shall be kept or sdld on any part of the premises, or in any building erected or to be erected thereon, the deed shall become void and of no effect,” is valid in law.
    And in such case, the open and public sale of such articles by a tenant of the grantee on the premises, with the assent of the grantee or with his knowledge and without reasonable diligence on his part to prevent it, will work a forfeiture of the estate.
    But an authorized sale by a third person, where the grantee is chargeable with no fault or negligence, will not work such forfeiture.
    And the question of the grantee’s knowledge of such sales, and of his negligence or diligence in relation thereto, is wholly one of fact, on which any evidence ordinarily applicable to such a question is admissible.
    Where, in an action of disseisin brought by the grantor against the grantee, to recover premisesheld under a deed containing such a condition, and claimed to be forfeited for a violation thereof, it appeared that the person who made such prohibited sales, held under a lease, from the defendant, and that the lease contained an agreement on the part of the lessee that he would not sell any article, the sale of which would injure the defendant’s title, but contained no condition that the lease should be rendered void by such sale, and it further appeared that the defendant as soon as he discovered such sales* had in some manner procured the tenant’s removal from the premises ; it was held, that the defendant was not chargeable by the plaintiffs with negligence for making a lease without such condition, inasmuch as the plaintiffs had suffered no injury thereby.
    This was an action of disseisin, brought to recover possession of a certain parcel of land, situated in Collinsville, in the town of Canton.
    The cause was tried at Hartford, before the superior court, at the October term, 1855.
    Upon the trial, the plaintiffs claimed to recover upon the ground of an alledged violation of the condition of their deed bearing date December 6, 1844, conveying the demanded premises to Emerson Moody, from whom the defendant derived title.
    The condition was as follows: “ Provided'always, and ■this deed is upon condition, that in case any ardent spirits, cordials or wines, shall be kept or sold on any part of said premises, or in any building erected, or to be erected thereon unless it be with other drugs and medicines, and sold in similar quantities, and in cases of sickness only, then, and in that case, the deed shall become void and of no effect.”
    The plaintiffs introduced evidence to prove that one Barber occupied three rooms in the basement of the building on the premises, for more than a year commencing in the winter of 1851 — 2, that the defendant occupied the rooms above, and that Barber, while he so occupied, held under the defendant, paying him rent, and was ih the habit of selling spirituous liquors openly and publicly, both to be drunk on the premises and to be carried away; and that in the spring of the year 1852, the plaintiffs’ clerk informed the defendant that he had reason to believe that spirituous liquors were kept and sold on the premises, in violation of the condition of the deed.
    The defendant on his part, denied that there had been any violation of the condition of the deed, and introduced evidence to prove that he had never suffered or permitted any liquors to be kept or sold on the premises; that if any had been kept or sold by Barber, it was done secretly and without his knowledge; that he had carefully examined the premises of Barber, and could find nothing to justify a suspicion that any liquors had been sold thereon; that he believed, and had good reason to believe, that the suspicions against Barber were entirely unfounded, and that as soon as he had reason to suspect that Barber had sold liquors, he caused him to quit the premises.
    And for the purpose of showing that he acted in good faith, and intended that no spirituous liquors should be sold on the premises by Barber, he offered -in evidence his lease to him, in' which Barber agreed that he would not sell any article which would injure the defendant’s title ; and also testimony to prove that at the time of the execution of the lease and previously, he explained to Barber the condition of the deed, and enjoined upon him the observance of it; that while Barber was in the occupancy, he went upon the premises and enquired of him as to any sales of liquor, and was informed by him that the condition of the deed had not been violated; and that he offered to allow Barber to occupy the premises rent free, if he would discontinue the sale of cider and ale.
    To the admission of this testimony the plaintiffs objected, but the court overruled the objection, and admitted the evidence.
    The plaintiffs requested the court to instruct the jury, that if the sales and keeping of intoxicating liquors on the premises were of such a character, and the defendant was so situated that by the exercise of ordinary diligence he might have had knowledge thereof, he was to be regarded as having actual knowledge; and that the notice given by the plaintiffs’ clerk was such notice as the law requires.
    The court charged the jury, that the condition of the deed was valid in law, and if the same had been violated, the plaintiffs were entitled to recover; but that the mere fact of the keeping or sale of spirituous liquors, wines or cordials, on the premises, was not necessarily a breach of the condition, and that a forfeiture would not be incurred by such keeping or sale, unless some fault or negligence was imputable to the defendant in regard to it; that the defendant was bound to act with reasonable diligence, and in good faith, and if he did so act, he would not lose his estate by the unauthorized act of another; and that the principal attention of the jury would therefore be directed to the question whether the defendant had exercised faithfully a reasonable diligence in keeping the condition of the deed. The court did not instruct the jury, in the form requested by the plaintiffs but did commend to their consideration, as having an important bearing on the question submitted to them, the plaintiffs’ claim, that the sales and beeping of the articles on the premises were of such a character, and the defendant was so situated, that with reasonable diligence he might have knowledge of the sales, and have prevented them. Also the claim, that the defendent was notified by the plaintiffs’ clerk, was submitted to the jury, as having an important bearing upon the question.
    The jury having returned a verdict in favor of the defendant, the plaintiffs moved for a new trial, and the questions of law were reserved for the advice of this court.

      T. G. and G. E. Perkins, in support of the motion;
    The condition of the deed is that if liquor is sold on the premises, the land shall revert to the company. It is not claimed that a single unauthorized sale by a stranger or tenant would cause a forfeiture, .but that it clearly would be caused by the frequent and public sale of liquors.
    The object of the company, who employed a great number of workmen, was to prevent entirely the establishment in their village, of anyplace of resort for procuring liquor, and it made no difference to them whether Marcy sold it, or some one else. They aimed to secure an absolute prevention, and without it their object is wholly defeated. The language of the condition clearly show this, which is not that the grantee shall not sell, but that liquor shall not be sold.
    If the parties had meant that the condition should be broken only in case the grantee endeavored not to have peopie sell, would they not have said so ? If he has made a certain agreement, will the court make it say something different from what it clearly means ?
    The rule of construing a deed most strongly against the grantor, will not warrant its being wrested to something which it clearly does not mean, and which would render it of no avail.
    The court should therefore have charged the jury as requested by the plaintiffs.
    The evidence objected to was clearly irrelevant, since the negotiations and conveyances between Barber and Marcy, did not affect the real question, and could not injuriously affect the company when they were not present.

      Welles and Chapman, contra.
    There must be consent or connivance by the grantee, or want of ordinary diligence in him, in order to violate the condition. Liquors might be sold on the premises, when the grantee could not prevent, or did not know it.
    The court below charged the jury that the defendant must exercise reasonable diligence and good faith in keeping the condition of the deed, and this was sufficient.
    And if this be so, the evidence which tended to show what steps he had taken, to ascertain whether liquors were sold by his tenant, and what measures for prevention, was clearly admissible.
   Waite, C. J.

We see nothing erroneous in the ruling of the court below, or in the charge to the jury.

The evidence offered by the defendant, for the purpose of showing the degree of care and diligence exercised by him, in preventing the sale of intoxicating liquors upon the demanded premises, was clearly admissible and proper for the consideration of the jury. The fact that he communicated to Barber when giving him a lease, the condition annexed to his title, and required of him an agreement, that he would do nothing that would injure that title, went to show the precaution which he took to prevent a violation of that condition.

The construction given to the original deed from the plaintiffs, we think, was the correct one. It could not have been the meaning and intention of the parties, that either the grantee or his assigns, should forfeit the estate, in consequence of the unauthorized act of a third person, unless they were chargeable with some fault or negligence.

If a rum-seller, upon some public occasion, should take possession of a vacant lot in a city, holden by a title similar to that of the defendant, and there, without the approbation or knowledge of the owner, continue to sell openly and publicly ardent spirits for a whole day, such unauthorized sale would not work a forfeiture of the estate. Indeed so harsh a construction has not been claimed by the plaintiffs.

But it is said the sale by Barber was open and public, and the defendant was so situated that he must have known it. But this knowledge was denied on the part of the defendant. Whether he actually had that knowledge, was a question of fact for the jury, and their attention was called to the evidence upon that subject, as having an important bearing upon the question submitted to them.

Without doubt the estate of the defendant would have been forfeited, had there been such a sale with his assent, or with his knowledge and without any efforts on his part to prevent it.

Again, it is said that the defendant was notified of the sale by the plaintiffs’ clerk, and that was sufficient. But the defendant claimed that immediately upon such notice, he instituted enquiries and discovered no foundation for the charge, and had reason to believe there was none. Whether upon such notice he faithfully exercised reasonable diligence in ascertaining the truth, was also a question of fact for the jury and their attention was likewise called to the evidence upon this subject, as having an important bearing in the case.

Finally it is said, that the defendant was chargeable with negligence in giving a written lease, relying upon the lessee’s agreement not to sell spirituous liquors upon the demised premises, without inserting a provision by which the lease should be rendered void upon such sale,

This omission would have been strong evidence of neglect on his part, had he thereby been prevented from putting a stop to such sale by his tenant. But his claim was, that as soon as he discovered that Barber had violated his agreement, he caused him to be removed from the premises, and it does not appear that he experienced any difficulty in effecting such removal, in consequence of any omission in the lease.

The plaintiffs can not complain of any act of the defendant, from which they have suffered no injury.

We see no reason for disturbing the verdict, and therefore do not advise a new trial.

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

A new trial not granted.


author: Hinman, J.

text:
    Arnold vs. Kellogg.
    Where in an action of trespass gu. cl. fr. to which the only plea was the general issue, the plaintiff recovered less than thirty-five dollars damages, and after verdict the judge made a certificate, that the defendant, admitting his entries upon a part of the land in the plaintiff’s declaration described, claimed that he was the owner in fee of all that part of said land, and that on that ground his entries were justifiable; and the jury found that the defendant had title to a part, but not to the whole of said land claimed by him, and on which he entered ; it was held, that no more costs could be taxed in favor of the plaintiff, than the amount of damages recovered.
    The case of Bishop v. Seeley, 18 Conn. R., 389, cited and approved.
    This was an action of trespass qu. cl.fr., brought originally to the superior court; to which the general issue was pleaded.
    The cause was tried at Hartford, at the term holden in December 1855, when the jury returned a verdict in favor of the plaintiff, for five dollars damages and her costs. The court accepted the verdict, and made the following certificate.
    “ I certify, that upon the trial of the above entitled cause to the jury, upon the plea of the general issue, the defendant, admitting his entries upon a part of the land in the plaintiff’s declaration mentioned, claimed that he was himself the owner in fee of all that part of said land, and on that ground he claimed that his said entries were justifiable. And the jury having returned a verdict for the plaintiff to recover the sum of five dollars damages, being inquired of by the court, at the request of the defendant, said that they found, that the defendant had title to a part, but not to the whole of said land, which he claimed, and on which he had entered, and had given their verdict against the defendant, because of his said entries upon the plaintiff’s land beyond the line of the land to which his title extended : and it is ordered that this certificate be made part of the record in said cause, but that no more costs than the amount of damages given by said verdict, be taxed in the plaintiff’s favor.”
    The plaintiff by motion in error thereupon brought the record before this court, assigning as error, that the title to land was in question, and that the court allowed no more costs than damages.

      Welles and Chapman, for the plaintiff.
    Hubbard, for the' defendant.
   Hinman, J.

The question in this case is the same in substance, as was decided in Bishop v. Seeley, 18 Conn. R., 389, and must be governed by that decision. To the doctrine of that case we expressed our adherence in the late case of Mansfield v. Church, 21 Conn. R., 73.

There must be some limit to the exception'as to costs3 contained in the 152d section of the act for the regulation of civil actions, or, as was said in the case of Bishop v. Seeley, a party would be entitled to full costs in an action of slander, or assault and battery, where the title to land should incidentally come in question on the trial; which we presume no one would claim to have been intended ; and wherever the line is drawn, there will arise cases on each side of it, so near each other, as to render it difficult to give any other reason for giving full costs in one, and refusing to do so in the other, than that such is the rule, founded on decisions of the highest court. Where there is no plea or notice of title, there is no direct issue upon the question of title, as there is under a plea of title ; and, if there is a notice that the defendant’s title to the land in controversy will be relied upon, the case, if it turns and is decided on that question, falls within the letter and spirit of the exception. But if we go further, and attempt to make the dividing line one of exact justice in every case, it would be impossible to fix any intelligible limitation to the exception. And to give full costs in every case in which a question of title may arise, without reference to the amount of damages recovered, we are satisfied was not the intention of the legislature. We are of opinion therefore, that there is no error in the judgment complained of.

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

Judgment affirmed.


text:
    Taylor and another vs. Ely and others.
    A representation which estops the party making it from denying its truth, must not only have misled the party to whom it was made, but have been intended so to mislead him ; or at least there must have been such culpable negligence or carelessness-as may be regarded as amounting to an intention to mislead.
    And the same is true, where a party by his silence, which is only one mode of making a representation, has misled another, as to the matter not communicated.
    To make the silence of a party operate as an estoppel, the circumstances must be such as to render it his duty to speak.

      Therefore where W. who was building a house for E. under a written contract, assigned the contract while the house was unfinished to T. to secure an indebtedness to him and also assigned his lien on the premises, at the same time stating to T. that there would be $1,500 due him from E. on the contract when the house was completed, and T. at once called on E. and enquired if the statement was true, informing him of the assignment of the contract and of his proposal to complete the house, to which E. replied that if T. took the contract to finish he must do so at his own risk, and entirely upon W’s representations, and declined to inform him as to the state of his account with W.; upon which T. proceeded to complete said house at a considerable outlay of his own funds, E, being present very frequently while the work was going on, but giving him no further information on the subject of his accounts with W., it also appearing that E. supposed he was somewhat indebted to W. and had been informed thatT. had security for the cost of completing the house ; it was held, on a bill in equity brought by T. as the assignee of W. against E, and others for a foreclosure upon said lien, that E. was not estopped from claiming that W. had been overpaid by him before the assignment of the contract to T. and that nothing was due under the contract. [Waite, Chief Justice, dissenting.]
    This was a bill in chancery brought by Edwin Taylor and James Bartholomew, partners under the name of E. Taylor & Co., for a foreclosure of a mechanics lien upon a dwelling house built for Ely & Co., the principal defendants, under a contract between said Ely & Co., and one Benjamin S„ Withey, which lien the plaintiffs claimed to hold under an assignment from Withey.
    The cause was referred to a committee, who at the term of the superior court holdenin Hartford, in January 1855, made their report, embracing the following facts.
    On the 27th day of May 1851, said Ely & Co. entered into a contract in writing with said Withey, for the alteration and repairing of a dwelling-house belonging to them, for the sum of $2,875, to be paid from time to time as the work progressed.
    By reason of certain agreed variations from the contract, the amount of the cost of said alterations and repairs was $2,664.66, if no deduction was made for damages for deficiency in materials or workmanship ; but the materials and workmanship of said building did not correspond with the written contract and the damage to Ely & Co. in consequence thereof, was five hundred dollars.

      About the first of November 1851, while this work was unfinished, Ely & Co. entered into another contract with Withey, in writing, which was to take effect from the 15th of October 1851, by the terms of which for four thousand dollars, Withey was to build another house for them called the south or new house, which was to be finished by the first of April 1852. Withey commenced the new building about the first of November 1851, and continued to work thereon until about the 23rd of March 1852, when, having become embarrassed, and being considerably indebted to the plaintiffs for lumber furnished principally for said houses, he assigned to them the last named contract, with all sums of money due thereon. At the date of said assignment there was due the plaintiffs from Withey $717.82, and with the view of securing that debt, and with a full belief that there would be a sufficient balance due from the said Ely & Co. to Withey, when said building should be finished, to pay said debt and the expense of completing said building, the plaintiffs proceeded at their own expense to complete the same, and advanced various sums of money, and furnished materials and labor therefor, amounting to $1,230.50.
    On the 7th of September 1852, Withey, having a valid lien on said house and the land belonging thereto, lodged with the town clerk of the town of Hartford, a certificate claiming that $1,500 was due to him from the said Ely & Co., and that the same was assigned and belonged to the plaintiffs.
    On the first of January 1852, Ely & Co. had paid to Withey $3,192.09, and about that time rendered an account thereof to Withey, with the following entry thereon, “ no entry made of advances for new house, (meaning the south house,) except as entered in said account above,” referring to an item of $92.07 charged to account of the new building. It also appeared that between November 8th, 1851, and January 1, 1852, orders were drawn by Withey on Ely & Co., and paid by them for sums amounting to $575.77.
    After January 1st, 1852, Ely & Co. paid on account of the new house $3,000, which with the sums previously mentionecl embraces all that was paid by Ely & Co. to Withey, on either contract.
    The committee also found, that the damages sustained by the defendants by reason of said new building not being completed at the time specified in the contract, was not less than two hundred dollars, and that the damages sustained by reason of said Withey’s failure to comply with said contract in respect to the quality of materials furnished and work done thereon, was four hundred dollars: and that at the time of the assignment of said contract to the plaintiffs, the defendants had paid to said. Withey, the sum of two hundred and seven dollars and eighty-four cents more than the whole amount that would have been due on said contract, on the completion of the same.
    At the time said contract was assigned to Taylor & Co., Withey represented to them that $1,500 would be due him from Ely & Co. on said contract, when the south house should be completed. On the day said contract was assigned, said Taylor met William B. and Alfred E. Ely, members of the firm of Ely & Co. in the street, and told them what Withey had said in regard to their indebtedness to him on said contract; to which said Alfred replied, that he did not know how the fact might be, that his brother the said William B. knew more in relation to the matter than he did, and referred said Taylor to him ; and one of the said Elys remarking that they could not tell then, their books being at the store, they separated.
    On the morning after said conversation, William B. Ely, seeing Bartholomew, one of said firm of Taylor & Co., informed him that they had concluded not to say any thing in relation to the state of their accounts with Withey ; that if Taylor & Co., took the contract to finish, they must take it on Withey’s representations entirely; that he knew his own business and could inform them, but that they might be blamed by Withey, and would say nothing about it. Alfred E. Ely also said to Bartholomew on the same day, that if they took said building to finish, they must take it at their own risk.

      Ely & Co. at that time supposed themselves indebted to Withey, and had proposed to go forward and finish the building; which was known to Taylor & Co., before they commenced work thereon under said assignment; Ely & Co., supposing the cost of completing said work would not exceed eight hundred dollars, while Withey estimated it at nine hundred and forty dollars; and Taylor & Co. would not have proceeded to finish said work, if they had not supposed that a large balance would be due from Ely & Co. when said building was finished ; and although from the time of said assignment in March, until said building was finished in August 1852, some one of said firm of Ely & Co. was frequently at said house, it did not appear that any other conversation took place between the parties in relation to their payments for said house, or that Taylor & Co. were ever informed that the north house was not finished according to the contract, or that the contract for the south house was not a distinct and independent contract.
    The plaintiffs after said assignment proceeded in good faith to finish said building within a reasonable time thereafter, and were not aware until the accounts of Withey, their own, and Ely & Co’s, were presented for adjustment, that Ely & Co. claimed that they were not indebted to Withey as stated by him when they undertook to complete said contract.
    At the term of the court holden in October 1855, the report of the committee was accepted, and the bill dismissed.
    The plaintiffs thereupon by motion in error brought the record before this court for revision.

      Hung erf or d and Gone, in support of the motion.
    1. When the defendants were enquired of by the plaintiffs as to the amount due, or to become due when the contract was fulfilled for the south house, it was the duty of the defendants to have informed the plaintiffs correctly, or so far as they were enabled todo, upon that subject. Watson v. McLaren, 19 Wend., 557. Taylor v. Newland, 21 Wend., 94. Davis v. Thomas, 5 Leigh., 1. Mangles v. Dixon, 18 Eng. L. & Eq. R., 82.

      2. If they were then unadvised, it was their duty to inform themselves and communicate that information, and not leave the plaintiffs under a mistaken apprehension of facts, to expend their money in completing the building, and incur a loss'for the benefit of the defendants.

      R. D. Hubbard,, contra.
    1. If the question were between Withey and Ely & Co., nothing could be found due.
    The plaintiffs are the assignees of Withey, and stand on no higher ground than he. They took the contract subject to all the off-sets, abatements and equities which would attach to it as between the original parties. But according to the finding of the committee, there is not only nothing due on the contract, but on the other hand Ely & Co. have paid more than the amount required.
    2. The plaintiffs are entitled to nothing on the grounds of equitable obligation.
    Withey was under obligation to finish the house : Taylor, by an arrangement between him and Withey, assumed Withey’s obligation, and Ely & Co. were not a party to this arrangement.
    Ely & Co. did not encourage Taylor & Co. to go forward, on the other hand they discouraged them. The assignment was taken with the view of completing the work, and this was done before Taylor had seen Ely & Co.
    After the assignment was made, Ely & Co. were under no obligation to make a statement of the accounts to Taylor & Co. They were under no obligation to make a statement even to Withey.
    3. Ely & Co. informed Taylor that they could not give him the information, because Withey might blame them, and if he “ took the building to finish he must do so at his own risk.” After being so advised in distinct terms, could Taylor & Co. go forward, but at the risk and cost of Ely & Co.?
    Ely & Co. moreover supposed Taylor & Co. to be secured and therefore could not equitably be held to render an account.

      4. If the plaintiffs claim anything on the ground of equitable fraud and concealment, they should have set it up in the bill. Otherwise they can take nothing on that ground.
    5. If the plaintiffs are entitled to any thing on this ground they can not take it under the lien ; under the lien they take only Withey’s rights. Withey has no claim on this ground, and could not possibly file and swear to a certificate on this ground; the certificate sets up an indebtedness to Withey, and the lien is claimed therefor.
   Hinman, J.

The plaintiffs as assignees of Benjamin S. Withey, seek to foreclose a mechanics lien in his favor, for building for the defendants, and on their land in the city of Hartford, a double brick dwelling-house, the work on which was commenced by Withey, under a contract with the defendants, but was finished by the plaintiffs. Withey being unable to go on with the work, and being indebted to the plaintiffs for materials furnished, assigned the contract to them to finish, and to collect for their own use whatever might be due thereon.

The plaintiffs claim a balance of $1,500 to be due on the contract, but the bill states that the accounts between Withey and the defendants have not been adjusted, and it therefore seeks only to foreclose for whatever may be found to be due, with the interest thereon.

The defendants deny that there is any thing due, and by the report of the committee, it appears that, as between the defendants and Withey, there is nothing due; on the contrary, Withey has been overpaid. The plaintiffs however claim, that the conduct of the defendants, before and since the assignment, has been such as to induce the plaintiffs to believe, that the sum of fifteen hundred dollars would be due when the house was finished, on the faith of which, they, in good faith, went on and completed the contract; which they would not have done, had thé defendants given them correct information, as to the state of the accounts between them and Withey. They therefore insist that the defendants are estopped to deny their liability, to the extent which they were induced to believe would be due when the contract was finished. The defendants never made any direct admission, that there would be any thing due from them when the house was finished; but it is claimed that their conduct was such, as to induce the belief that a large balance would be due on this event; and that, in the expectation of being able to reimburse themselves for their expenditures, and also to obtain payment of a portion of their own debt against Withey, they have been drawn in to make advancements, wholly for the benefit of the defendants, and which the plaintiffs must lose, unless the defendants are liable to make good the representations upon which the advancements and expenditures were made. The question therefore is, whether there are facts enough found to estop the defendants, as between them and the plaintiffs, from denying their liability. Withey represented to the plaintiffs that fifteen hundred dollars would be due when the contract was completed, and this was immediately communicated to one of the defendants, who replied that he did not know how the fact might be, that his brother knew more of the matter than he did, and referred the plaintiffs to him; and one of the defendants remarked, that he could not then tell, their books being at the store; and subsequently the defendants refused to give such information on the subject as the plaintiffs required.

The plaintiffs’ claim is founded upon the idea that the defendants’ conduct, in suffering the plaintiffs to go on and expend their money in completing Withey’s contract, under the false impression that when completed there would be enough due upon it to reimburse them for such expenditures, and would also be enough to pay them for a portion of Withey’s indebtedness to them, in connexion with the declarations of the defendants, after they were informed that Withey had said that fifteen hundred dollars would be due when the house was finished, and their refusal to give information in respect to their accounts with Withey, is tantamount to silently standing by and suffering an honest purchaser to expend his money in the purchase of property to which the party thus consenting to its sale has a claim of which he gives no notice; and as the defendants not only omitted to give any information on the subject when first applied to for the purpose, but subsequently expressly refused to give any, on the ground that they might be blamed by Withey, it is asked, whether the express refusal to give any information is not to have the same effect, that the silence of a party will have upon his rights to property, if he is standing by when it is sold to a bona fide purchaser; and whether it makes any difference in the case, that a reason was given for -such refusal. No one doubts that by refusing or neglecting to give notice of his rights to property, where it has the effect to mislead a purchaser, by inducing him to believe that no such rights exist, a party may preclude himself from after-wards asserting them. And the case, as we think, turns upon the application of this and other well settled principles, rather than upon any difficult or doubtful principle itself. We do not assent however to the notion, that a refusal to speak, with a reason given for it, is the same thing as silent acquiescence in what another does or says. A party can not be misled unless something is done or omitted which has the effect to mislead him. When the silence of a party has the effect to mislead another to his injury, and is willfully suffered to have that effect, justice requires that the party should be concluded by it.

But to operate as an estoppel, the silence, which is only one mode of making a representation, must not only have misled the other party, but it must have been intended to mislead him, or at least, it must have been such culpable negligence or carelessness, as may be said to amount to an intention to mislead. Hence Parke B. in the case of Freeman v. Cook, 2 Exch. Rep., 654, in commenting upon the rule laid down by Lord Denman, in Pickard v. Sears, 6 Ad. & El., 469, which is the rule so frequently recognized by this court, since the case of Brown v. Wheeler, 17 Conn. R., 345, says, that the rule laid down in Pickard, v. Sears, was to be considered as established ; but the term “ willfully ” in that rule must be understood, if not that the party represents that to be truth which he knows to be untrue, at least, that he means his representation to be acted upon, and that it is acted upon accordingly ; and if, whatever a man’s real meaning may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and he did act upon it as true, the party making the representation would be equally precluded from contesting its truth.” It is also said in the same case, that the doctrine of Pickard v. Sears, is'not to be acted upon in most cases, unless the representation is such as to amount to the contract or license of the party making it. The doctrine in regard to estoppels in pais, is more liberal, and less entirely governed by technical rules, than estoppels by deed or by record. The object is to prevent fraud, not to produce it by entrapping a party. An estoppel of this sort is called an equitable estoppel, in contradistinction to the technical, legal estoppel, arising upon a deed or record ; and where the representation or concealment is not willfully fraudulent, or is not attended with such gross negligence of the rights of others as to be tantamount thereto, the party ought not to be estopped. Parker v. Barker, 2 Met., 423. Hence, where a representation is not acted upon, or is not intended to be acted upon, and the party making it had no reason to suppose it would be acted upon, it will not operate as an estoppel. Freeman v. Cook, 2 Exch., 654. Cady v. Dyer, 20 Conn. R., 563.

Now, whatever may be true in regard to some loose expressions found in some of the numerous cases on this subject, it is believed that the general current of the best considered modern cases is strongly in favor of the doctrine as it is here stated; and it is certain that this court has never extended the principle beyond it. Brown v. Wheeler, 17 Conn. R., 345. Roe v. Jerome, 18 Conn. R., 138. Abel v. Fitch, 20 Conn. R., 90. Whitaker v. Williams, 20 Conn. R., 98. Dyer v. Cady, 20 Conn. R., 563.

And why should it go further? The object is to do justice, and to suppress fraud. But if a party is drawn into make representations by mistake, or if he make them in ignorance of his rights, or if he is silent, and thus seems to acquiese in the declarations or representations of others, when he has no knowledge of his rights, especially when he has no knowledge of facts on which his rights rest, there is no justice in his being concluded thereby; and, we think, there is no just equitable principle, that will prevent his setting up the truth.

To make the silence of a party operate as an estoppel, the circumstances must be such as to render it his duty to speak. He must be silent when conscience requires him to speak. Niven v. Belknap, 2 John., 573. Clabaugh v. Byerly, 7 Gill., 354.

We know of no principle that requires that the evidence of title should be disclosed ; or that an account should be rendered, where as in this case, the interest of another may depend upon the state of the account, so long as nothing is done to mislead. It might be prejudicial to the right claimed, if the party was bound to go into details respecting it. The true question must be, whether any thing was intentionally, or at least by gross negligence, concealed, which had the effect to mislead.

Tested by these principles, we think the 'facts found by the committee are not sufficient to entitle the plaintiffs to relief. There is no actual fraud found against the defendants; and although certain facts and circumstances are found, which might have more or less weight as links in a chain of evidence going to show fraud, yet they are in themselves of an inconclusive character, and, in connection with other facts in the case, are wholly insufficient to induce us to believe that the defendants intended to mislead the plaintiffs. The cir.cumstance on which the plaintiffs’ counsel appear to place the most reliance, is the fact that the defendants stood by and saw the plaintiffs expend their money in the completion of the building, without informing them that there would be nothing due on the contract, when the house was finished. If this fact was unexplained it might perhaps fairly be inferred from it, that the defendants intended by means of the plaintiffs’ materials and labor upon the building, to reimburse themselves for their overpayments to Withey ; and if such was their object it would be a fraud which would subject them in this application. But the case finds that Withey informed the defendants that he had secured the plaintiffs for completing his agreement; and if this information was believed, and we can not say the defendants had any reason to disbelieve it, it entirely changes the character of the defendants’ acts, by showing that they, as well as the plaintiffs, were misled, and were acting under a mistaken impression induced by the unreliable statements of Withey. Besides, the defendants were not entirely silent in acquiescing in the plaintiffs’ work upon the house; and we think under the circumstances, that it can hardly be said that the plaintiffs, in performing this work, acted with the prudence and caution which most men would have exercised. They were probably more easily misled than they otherwise would have been, in the hope of obtaining payment of some portion of Withey’s indebtedness to them; and so far as they acted under any such inducement, it is chargeable to their own imprudence, for which obviously the defendants are not responsible. The defendants distinctly told the plaintiffs, that if they went on with it, they must do so on the representations of Withey alone; and they gave as a reason for refusing to say any thing in respect to the accounts, that they might be blamed by Withey. This is certainly an intimation that they ought not to rely on his statement. It is much the same as saying, we do not admit his statement to be true, and if you act upon it, you must do it at your own risk. It appears moreover, that there would have been a considerable sum due to Withey, had his work been such as to answer the terms of his contracts ; and the defendants had no reason to suppose that it would not. To the extent of the deduction for imperfect work and materials, they could not be made liable, had they expressly admitted their indebtedness, as it would obviously have been an admission founded upon the expectation that there would be no such neglect on the part of Withey to perform his contract. Making then the proper allowance on account of this imperfect work, and the whole case against the defendants seems to be this: they were told that Withey had said there would be $1,500 due from them when the house was finished, and they did not admit this, and supposing something would be due from them, they did not deny it; but cautioned the plaintiffs, that if they went on with the work, they must do so at their own risk, on the representations of Withey alone, as they had concluded to say nothing on the subject. We think there is not enough here to subject them, and we therefore advise that the bill be dismissed.

In this opinion, Stores, J. concurred.

Waite, C. J. The principal question in this case is, whether the defendants, when called upon by the plaintiffs for information as to the correctness of the statement made to them by Withey, were in duty bound to answer the enquiry honestly and truly. I think they were. The plaintiffs had an interest in the enquiry. They had a debt of considerable amount against Withey, which they could secure, but at much expense, provided his statement to them was correct, that there would be fifteen hundred dollars due to him, from the defendants, when the house was finished.

There were but two parties who knew the state of the accounts, Withey and the defendants; the plaintiffs could obtain no information from any other persons. Having ascertained what they could from the former, they went to the latter, informed them of the statement which Withey had made, and their interest in the enquiry, and requested to know of them whether the statement was correct.

The defendants took time to examine their books, and then informed the plaintiffs that they had concluded not to say any thing in relation to the building — that if the plaintiffs intended to take the contract, they must take it upon Withey’s representations entirely — that he could inform them, and as they might be blamed, they would say nothing about it; and at the same time proposed themselves to go forward and finish the building.

These answers seem to have been artfully framed, so as to deceive and mislead the plaintiffs, in the manner they were, and induce a belief in their minds, that by completing the building they could secure their debt against Withey, and their expenditures in completing the. contract.

If, as the defendants stated, Withey knew his own business and could inform them, the plaintiff’s were reduced to the alternative of believing, either that his representations were substantially true, or wilfully and falsely made. There is nothing in the report of the committee, calculated in the least to awaken suspicion as to his honesty. He had no inducement to deceive them. Not so with the defendants. If they could induce the plaintiffs to go forward and, complete the building, without any expense to themselves, and then reap the fruits of the plaintiffs’ labors and expeditures, they would be the gainers thereby.

Besides, why did they offer to go forward themselves and complete the building, unless to induce the belief that there would be enough due from them, at least to cover the necessary expense. It is indeed found that they supposed they were indebted to Withey in a greater or less amount. But before they answered the plaintiff’s’ enquiry, they took time to examine their books, and then informed the plaintiff’s that they had concluded to say nothing upon the subject, thus designedly concealing from the plaintiff’s a knowledge of the facts, which they knew it was material for them to understand.

Had they given the plaintiffs such information as they possessed, they would have been exonerated from all imputation of fraud.

It is said the plaintiff’s were at liberty to act or not, upon the information derived from Withey. But they did not stand exactly in the condition of volunteers, purchasing an unexecuted contract. Withey owed them to a considerable extent, for materials furnished in building the very house in question, under his contract with the defendants, and they had a right to use all lawful measures for the collection of that debt; and if there would be enough due to him from the defendants, to pay their debt, the plaintiffs had a right to avail themselves of that indebtedness.

It seems to me, that the defendants can stand in no better situation than they would, had they stood by and seen Withey convey their land to the plaintiffs, knowing what he was doing, and neglecting to give the plaintiffs information of his want of title. In such case, the law says they would afterwards be estopped from saying that the grantor had no power to convey. They would have no right to remain silent and see the purchasers defrauded of their money.

Their silence in the present case, saying nothing of their declarations and conduct, was as much a fraud upon the plaintiffs, as it would be in the case supposed. It is found that one or other of the defendants was almost daily at the house, while the finishing was going on, and, in one.instance, directions were given as to the work, and, during all this time, not the least intimation is given to the plaintiffs, that-they are expending their time and money solely for the benefit of the defendants, and without any prospect of receiving any remuneration therefor.

If such conduct can receive the. sanction of a court of justice, I am confident it can not receive the approbation of-any honest man.

It is objected on the part of the defendants, that inasmuch - as the plaintiffs have not alleged fraud in their bill, they are not entitled to avail themselves of it, in the present suit. But if the defendants are estopped by their conduct from saying there is nothing due upon the contract, then this objection falls to the ground.

For these reasons I am of opinion that the plaintiffs are entitled to a decree for the amount by them expended in completing the contract, but not for their debt against Withey.

Bill to be dismissed.