text:
    Taylor and wife vs. Knapp.
    A husband and wife brought an action for an injury to a right, belonging to her and appurtenant to her land, to take water from a reservoir of the defendant. The declaration stated that the wife owned the land, that the plaintiffs owned and possessed the right to take the water, as owners and possessors of the land, and that by the wrongful act of the defendant, the plaintiffs had been deprived of the use of the water. A verdict having been rendered for the plaintiffs, on a motion in error from the judgment for the insufficiency of the declaration, it was held :
    1. That enough was alleged in the declaration to show a right of action in the wife.
    2. That she was properly joined with her husband in the suit..
    3. That the declaration might be construed as alleging only an injury to her right, enjoyed by them both during the coverture.
    4. But if to be regarded as also alleging an injury to his right as distinct from hers, and as founded on a separate interest, that then it would be intended that the judge on the trial allowed no evidence except as to injury to her right, and the allegations not pertinent thereto would be regarded as surplusage.
    This was an action on the case, brought by Andrew Taylor and Polly his wife against Harmon Knapp. The declaration contained two counts, the first of which alleged that on the 18th day of November, 1854, and long before, the said Polly was, and ever since had been, seized and possessed of a certain tract of land, owned by her in fee simple, of which the plaintiffs were well seized and possessed; and that upon the adjoining land of one Alfred Benedict was a spring of water, in which was laid a lead pipe, conducting the water from said spring to a cistern on the land of the defendant; and that the plaintiffs owned and possessed the right to take water from said cistern for their use, and which had always been of great use and value to the plaintiffs, as the owners and possessors of said described tract of land; yet that the defendant, intending to injure the plaintiffs and incommode them in the enjoyment of the use of the water from said cistern, on the 30th day of November, 1854, wrongfully and injuriously did take up said pipe, by reason of which the plaintiffs had been, since that time, and still were wrongfully and unjustly deprived of the use of the water from said pipe or cistern, which of right they ought to have.
    The second count, after stating seizin and possession of the same premises, and in substantially the same manner as the first count, alleged a right of foot-way from their said land, on and over the land of the defendant, to and from said cistern, to bring and use the water thereof, and an obstruction of the way by the defendant.
    The cause was tried upon the general issue closed to the jury at the October term, 1856, of the superior court for Fairfield county, and a verdict rendered in favor of the plaintiff.
    The defendant, by motion in error, brought the record before this court, assigning as error the insufficiency of the declaration in its statement of the plaintiffs’ right and interest, and in the joinder of the wife in the action.

      White, in support of the motion.
    1. There was no sufficient cause of action stated in either count of the declaration, all that was done by the defendant being what he had a perfect right to do.
    2. The interest of the plaintiffs below is not properly described. In each count, the wife is described as seized and possessed alone, and in the same count as seized and possessed jointly with her husband. The rights of the plaintiffs must be directly and certainly stated, and where the husband and wife are joined, her interest, and his seizin and possession in her right, must be particularly set forth. Gaylord v. Payne, 4 Conn., 190.
    y. If the declaration is to be understood as alleging that the plaintiffs, as husband and wife, are jointly seized, the husband has the right of possession, and should have sued alone.

      E. Taylor and W. F. Taylor, contra.
    1. The husband and wife were properly joined. 1 Chit. PL, 63, 64. Cornwall v. Hoyt, 7 Conn., 420, 1 Sw. Dig., 36.
    2. The declaration shows sufficiently a right of action in £he wife, and that is enough after verdict. 1 Sw. Dig., 603, 776.
    3. If the declaration is defective, it is only in matters of form, of which advantage could be taken only by special demurrer.
    4. Upon a fair construction of the declaration, there is nothing contradictory in the description of the plaintiffs’ title and interest.
   Ellsworth, J.

The questions raised on this motion, are, whether there is enough stated in the declaration, if true, to support the plaintiffs’ action, and whether the manner in which it is stated is sufficient to satisfy the rules of law.

The declaration is exceedingly inartificial and obscure. Still, we think it will answer after verdict. The first count contains an allegation that Polly M. Taylor, the wife of the other plaintiff, was, during the times, &c., &c., the owner and in possession of a valuable right to take water from a certain reservoir or cistern on the land of the defendant, and that during the time of their intermarriage they have been deprived of the enjoyment of this water. The second count states substantially the same thing, and then goes on to declare that the wife had a right of way to and upon the said land of the defendant, to pass to and from said reservoir, which the defendant obstructed so as to injure the plaintiffs in their said right of water.

There is enough stated to give the said Polly a right of action, and of course to justify and to require her to unite with her husband, unless the husband had seen fit to sue alone, as perhaps he might have done for some part of the injury at least. The wife is the meritorious cause in this instance, and certainly may be joined in a suit to vindicate and establish her right. In Weller v. Baker, 2 Wils., 414, we find the celebrated case of the Tunbridge Wells, decided in 1769, where it was held that the husband might join his wife in suing for an injury to her right as a dipper of the well. The general doctrine is stated in the same manner in 1 Chit. PL, 63., Reeve Dom. Rel., 131, and in Martin & ux. v. Lewis, 1 Day, 263 ; and is as well laid down in Archibold’s PL & Ev., 39, as in any other book. He says, “ For any matter relating to the land, which the husband has in the right of the wife, the husband and wife may join, or the husband may sue alone.” Thus in an action for a trespass on the wife’s land during coverture, the husband and wife may join, or the husband may sue alone. In trespass for cutting down trees belonging to the wife, they may join. So in an action for a forcible entry upon and detainer of her land. So in an action on the case for stopping a way to the wife’s land, they may join. So for inclosing land in which the wife has common, or for not grinding at the wife’s mill. So in debt on Stat. of 2 & 3, Edw. 6, for not setting out tithes, which the husband has in right of his wife, they may join. So if a woman leases for years, reserving rent, and afterward marry, the husband and wife may sue for rent due after the coverture. The case above cited from 1 Day, is where the husband and wife joined in an action of account for rents and profits of the wife’s land, accruing during the coverture.

Again; is there any difficulty in the form in which the material facts are stated in the two counts ? The declaration, as we have said, is inartificial, but we think it may be construed as a declaration by the husband and wife in her right, and that the husband claims only for an injury to her right belonging to them both during coverture; but if the declaration is susceptible of a broader construction, as setting up an injury to her right, and to his as a distinct co-tenant of a part, we think, after verdict, it must be held that the judge allowed no inquiry except as to damages sustained by the husband and wife to her rights or easements as distinct from his, and that what is said in the declaration about any right in the husband alone, as an original joint proprietor, may be treated as surplusage and immaterial.

In Smithy. Piermont, 11 Fost. R., (N. H.,) 343, the court held that where an individual commences an action and sets out a sufficient cause of action in his behalf, and also in addition thereto alleges other injuries resulting from the same cause, entitling himself and a third person to a joint action for damages, such additional allegations will form no sufficient ground for a motion for a nonsuit of the plaintiff'. Accordingly where a husband commenced an action against a town for an injury to his horse and wagon, occasioned by a defect in a highway which the town was bound to keep in repair, and in his declaration alleged an injury to the person of his wife resulting from the same cause, occasioning great bodily pain and suffering, it was held, that a motion for a nonsuit founded on the allegations of damage and injury to the wife, would not be sustained. Wood, C. J., in giving the opinion of the court says, “ Now it is clear that the action is well brought for the injury to the horse and wagon. Is the right to recover defeated by the additional allegations of injury and damage to the wife ? Todd & ux. v. Redford, 11 Mod., 264, was an action for assaulting the wife and driving a coach over her, and it was further alleged, that the husband laid out money in her cure; in that case a motion in arrest was denied. It was decided, that after verdict, when there is a proper cause of action in the wife, though circumstances are added which are actionable by the husband only, the declaration is good by husband and wife, and the circumstances are only to be regarded as matter of surplusage.”

In Lewis & ux. v. Babcock, 18 Johns., 443, it was decided, that a declaration in trespass by husband and wife, for a personal injury to the wife, containing also a cause of action for which the husband alone might sue, as the loss of her company and assistance in consequence of the battery, is good, after verdict, although it might be bad on demurrer. In Russell & ux. v. Come, 1 Salk., 119 and note, the husband and wife brought an action for the battery and false imprisonment of the wife, per quod the husband’s business remained undone. A motion in arrest of judgment was made after verdict. Holt, C. J. said, that he would not intend that the judge suffered the damage to the husband to be given in evidence, and the motion was denied.

We think the doctrine of these causes is founded in the highest propriety and justice. If a declaration is objectionable on the ground of surplusage or duplicity, so that the defendant can not well apprehend the cause of action for which he is sued, let him put in a special demurrer, which wiil reach and remedy the difficulty, and then, after the amendment, only the proper allegations will remain for him to deny or meet on the trial. He ought not to have the double advantage of forcing the plaintiff to prove his whole case to the jury, and then of defeating the verdict because he has proved more than enough to entitle him to recover.

There is a case in our own reports, which goes as far as any of the cases in the books. We refer to Fuller & ux. v. Naugatuck R. R. Co., 21 Conn., 557. In that case, this court held, that in an action on the case against a railroad company, brought by the husband and wife for injuries to the person of the wife, it was no ground of arrest, that the declaration, in addition to the true cause of action for which the husband and wife could join, (the injury to the wife) contained the further allegation that fi200 had been expended in her cure, for which alone the husband could sue. The court held, that after verdict it will be presumed that this charge was not allowed to be proved, because it was foreign to the true cause of action.

As we have said, it is manifestly unjust, that after verdict the defendant should be allowed to say that too much has been proved against him, and therefore the plaintiff shall take nothing by his verdict. Let him demur in season, or object to the introduction of irrelevant testimony on the trial, and then he can not be injured by mere matter of surplus-age or duplicity, which is the utmost that can be objected to the declaration before us.

We think for these reasons that there is no error in the judgment.

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

Judgment affirmed.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Hitchcock vs. Danbury and Norwalk Railroad Co.
    A party, whose land was taken by a railroad company, under the provisions of their charter, for the purposes of their road, and in whose favor damages were assessed therefor and deposited to his credit with the treasurer of the county, afterward, with full knowiedge of all the proceedings of the company and of whatever defects existed therein, demanded and received the money so deposited, and for two years thereafter allowed the company, without objection, to occupy the land for their road, and expend money in improvements upon it. At the end of that time, having brought an action of trespass against the company, claiming that their proceedings were irregular, and conferred no right to make the entry, — it was held, that by the course which he had pursued he had waived all right to object to the irregularity of such proceedings.
    Trespass, qu. cl. fr., tried before the superior court for Fairfield county, October term, 1856.
    The defendants justified under certain proceedings, by which the land had been taken for the purposes of their railroad, and which they claimed were in all respects in accordance with the requirements of their charter. The plaintiff claimed that the proceedings v/ere irregular and defective, and gave the defendants no right to enter upon and take the land. The details of the defects claimed are not important in the view of the case taken by this court.
    Damages had been assessed to the plaintiff for the land taken, by appraisers appointed by a judge of the superior court, in accordance with the provisions of the defendants’ charter, and deposited in compliance with the charter to the credit of the plaintiff with the treasurer of the county. The plaintiff had afterward demanded and received the money, and retained it at the time of the trial. After receiving it, he allowed the company, without objection, for more than two years, to go on and occupy the land for their road, and lay out money in improvements upon it.
    The court on this point charged the jury, that if they should find that the plaintiff, with a full knowledge of all the proceedings of the defendants and of the irregularities therein, if any existed, demanded and received the money so deposited with the treasurer and appropriated it to his own use, and afterward suffered the company to remain in possession and expend its money in improvements on the land, and to use the land until this suit was brought, without objection, knowing that the company was so doing, they ought to find that by such conduct the plaintiff intended to waive and did waive all claims on account of irregularities in said proceedings, if such irregularities existed, and their verdict ought to be for the defendants: and that upon the rendition of their verdict they would be inquired of by the court whether they found such waiver or not.
    The jury rendered a verdict in favor of the defendants, and being inquired of by the court, replied that they found the waiver claimed by the defendants. The plaintiff filed a motion for a new trial.

      Hawley and Taylor, in support of the motion,
    after considering the defects which they claimed to exist in the proceedings of the defendants in taking the land, contended that the conduct of the plaintiff, in receiving the money and permitting the defendants to occupy the land in the manner in which they had done, was not a waiver of his right to object to the. irregularity of their proceedings ; citing thereto Roe v. Harrison, 2 T. R., 425. Kinnersley v. Orpe, Doug. Cas., 56. Pierce v. Benjamin, 14 Pick., 356. Gilmore v. Wilbur, 12 Pick., 120. Stewart v. Richman, 1 Esp., 108. Beardmere v. Shaw, 1 Bos. & Pul. N. R., 263, 266.

      Averill and Ferry, contra,
    contended that the proceedings of the defendants were regular and valid, and that if any defects existed therein, the plaintiff, by his conduct, was estopped from taking advantage of them ; referring, in support of the latter position, to the cases of Hawley v. Harrall, 19 Conn., 142, and Whittlesey v. Hartford, Providence and Fishkill R. R. Co., 23 Conn., 421.
   Ellsworth, J.

Numerous questions have been made, on the argument of this case, mostly of a technical and unimportant character, which the court do not think it necessary to decide, since we are satisfied that the plaintiff, by the course pursued, has waived such objections.

In March, 1851, the engineer of the defendants, under the provisions of the charter, laid out and defined, with exact boundaries, the defendants’ road, which included the plaintiff’s land in question. His doings were reported to and accepted by the directors in the same month. Thereupon, the commissioners on railroads gave notice to all the persons whose land was about to be taken, to appear before them, if they saw fit, and state their objections to the doings of said engineer. Upon a full hearing at the time and place appointed, the commissioners approved of the laying out by the engineer, and established the road. Damages were assessed to the plaintiff at $700, which was deposited to the plaintiff’s credit with the treasurer of the county of Fairfield on the 11th day of August, 1851, where'it remained until the 9th day of March following, when the plaintiff took it, and has ever since kept it, with full knowledge of whatever had been done by the engineer, directors and commissioners.

In this position of the case, the judge charged the jury, “that if they found, after all the aforesaid proceedings in regard to the taking of the plaintiff’s land and its appraisal, and the depositing of said money with the county treasurer for the plaintiff’s use, the plaintiff, with a full knowledge of all said proceedings and the irregularities and defects therein, if any existed, demanded and received said money so deposited with the treasurer, and appropriated it to his own use, and afterward suffered the company to remain in possession and expend their money in improvements on said land, and to use said land until this suit was brought, without objection, knowing that said company was so doing, they ought to find that by such conduct, the plaintiff intended to waive and did waive all claim on account of irregularities and defects in said proceeding, if such irregularities and defects existed, and their verdict ought to be for the defendants.”

We perceive no error in this charge, and as the jury have found the facts for the defendants, there was undoubtedly enough to sustain the verdict, and it ought not to be disturbed.

The doctrine of the charge is fully sustained by the decisions of this and other courts. We particularly refer to the recent cases of Hawley v. Harrall, and Whittlesey v. The Hartford, Providence and Fishkill R. R. Co. In the first case, reported in 19 Conn., 142, the mayor of the city of Bridgeport was sued for damage done to the land of the plaintiff in opening a street under the order of the common council, the plaintiff claiming that the proceedings of the common council were incorrect and informal, and furnished no justification. The amount at which his damage had been appraised, had been deposited with the city treasurer, and the money afterward taken and retained by him. The court held that he was concluded and could not recover. The court say, “ had there been an unreasonable delay, the plaintiff can not be allowed to insist upon the objection, for by receiving the money, he has waived the objection.” They ask, “ Is he to be permitted to retain his land, as if nothing had been done to it, and the money likewise, the assessed equivalent of the land ? He must be held to have known the supposed defects and informalities in the proceedings, and to have made up his mind, on the whole, to waive them and let the road be established.” Bo in the latter ease, found in 23 Conn., 421, where the assessed damages had been taken and kept, and the company had had possession of the road for a considerable time, the court held the plaintiff estopped, under the circumstances, from objecting to the informality of the proceedings.

For these reasons, briefly given, we think there should be no new trial, and so we advise the superior court.

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

New trial not advised.


author: Storrs, C. J.

text:
    Camp vs. Waring.
    A petition in chancery can be amended after the facts in the case have been found by a committee.
    A petition in chancery having alleged that the respondent, in selling to the petitioner certain real estate, and as an inducement to the purchase, agreed that a debt due to S., secured by*a mortgage of said real estate and of other land of the respondent, should be allowed by S. to lie for five years from the time of the purchase ; and a committee having found that it was the understanding of the parties that it should be allowed to lie for a number of years unless sooner enforced by S., and the petitioner having moved to be allowed to amend his petition to make the allegation conform to the fact as found,- — it was held, 1. That the amendment was proper in itself. 2. That it might properly be allowed after the report of the committee. 3. That it was no objection to its allowance, that the respondent might not have had a full hearing on the claim of the petitioner as presented by the amended petition, as the court could in its discretion allow a new hearing. 4. That the allowance of costs on the amendment, was a matter of discretion with the court.
    But, the court being satisfied from all the facts found in the case, that the petition as amended could not be sustained, and the whole case having been reserved for its advice, the court below was advised to disallow the amendment and dismiss the petition.
    This was a petition in chancery, brought to the superior court for the county of Fairfield, to obtain the correction of a deed, and an injunction against the prosecution of an action at law.
    The respondent, on the 31st day of July, 1851, had sold to the petitioner certain real estate in the town of Stamford, known as the Rippowam Foundery. At the time of the sale it was subject to a mortgage to one Julia Smith, made by the respondent, to secure a note of $5,000, other real estate of the respondent being included in the mortgage. A preliminary contract signed by the parties, and of the above date, provided that the petitioner should pay $20,000 for the property, that the mortgage debt should be reckoned as $5,000 toward the price, and that the petitioner should assume the debt so as to exonerate the respondent and his property therefrom. A conveyance of the property was soon after made by the respondent to the petitioner, and a mortgage back by the latter. The mortgage contained the following clause : “ And whereas the property hereby conveyed, is, with other property belonging to said Waring, subject to a mortgage for |§5,000, given by said Waring to Julia Smith, the payment of which and the indebtedness which it was given to secure, I have by agreement with said Waring assumed upon myself as a part of the consideration of his conveyance to me, and have likewise agreed, as I do hereby agree, to pay off and satisfy said mortgage, and the indebtedness it was given to secure, so that the said Waring and all property of his subject to said mortgage, shall be fully and absolutely exonerated from said mortgage and said indebtedness, and all liability to pay or satisfy the same or any part thereof, within” — the clause being followed by a blank space of about two lines.
    The petition alleged that the respondent, to induce the petitioner to make the purchase, represented that said Julia was not in want of the money but was desirous that it should remain a permanent loan, and that “he agreed that she would permit the money to remain unpaid for a period of not less than five years from the time of the purchase,” which agreement, the petitioner averred, was an important consideration with him in deciding to make the purchase. The petition also alleged that it was understood and agreed between the parties, that the blank in the above clause of the mortgage deed should be filled with the words “ not less than five years,” or something equivalent, but that by oversight the mortgage was executed without filling the blank.
    The respondent, on the 30th day of March, 1853, brought an action at law against the petitioner for the breach of his covenant, in not paying the Smith debt, having previously demanded of the petitioner that he should pay the same, and he neglecting to do so.
    The petitioner in his bill prayed for the correction of the mortgage deed, by an insertion in the blank, of the words of limitation above mentioned, and for an injunction against the further prosecution by the respondent of his action at law.
    It was found by a committee, to whom the case was referred, that when the parties were negotiating with reference to the sale, the respondent, to induce the petitioner to purchase the property and pay him the proposed price therefor, represented that the mortgage to Mrs. Smith would probably be permitted by her to lie as a permanent loan, so long as the interest should be punctually paid, it being at the time suggested to the petitioner that he could ascertain by inquiring of Mrs. Smith, who lived near by; and that the petitioner could assume this debt as a part of the $20,000, and pay it when convenient to himself; that the petitioner did not promise the respondent to pay the debt within any specified time, and that the respondent did not promise the petitioner that the claim should not be enforced hy Mrs. Smith whenever she thought proper; but that the understanding was, that the mortgage debt might lie for a number of years at least, unless enforced by Mrs. Smith; that the petitioner paid the interest on the debt when due, until the commencement of the respondent’s suit, and that Mrs. Smith did not, previous to that time, require the payment of the debt. It was further found, that soon after the negotiation was completed, the parties applied to Charles Hawley, Esq., a counsellor at law, in whom both parties had full confidence, to draw up their agreement in writing, and stated to him substantially the terms thereof, and that he thereupon drew up the contract before mentioned, dated July 31,1851; and that if there was any disagreement between said written contract and the intention of the parties, it was owing to their misapprehension of the legal effect of said writing; that the only clause in said writing material to the question involved in this case, was the following : “ And the said Camp is to pay for the property so conveyed, the sum of $20,000, toward which is to be computed the mortgage given by said Waring to Julia Smith for $5,000, the payment of which said Camp is to assume, and so to assume as to exonerate said Waring and all property of his from payment of the same.”

      It was further' found, that soon afterward the respondent requested the said Hawley to fill out a deed of said premises from himself to the petitioner, and also a mortgage deed of the same premises from the petitioner to the respondent, in accordance with said written contract; and that while drawing up the condition to the mortgage deed, it occurred to the said Hawley, without any suggestion from either of the parties, that it would be desirable for both of them that a time should be limited w ithin which the mortgage debt to Mrs. Smith should be paid, and the said Waring and his property exonerated therefrom, and to accomplish this object he inserted the clause before mentioned; that the deeds when drawn up were delivered to the respondent, with a note from the said Hawley, suggesting to him the propriety of having the blank filled by mutual agreement before the deeds were executed, said note having been written because said Hawley was about leaving town to be absent several days; that a few days afterward the petitioner and respondent met for the purpose of executing the deeds and carrying into effect the agreement; that the petitioner being in haste, and being confident that the deeds were drawn in conformity to the agreement, read a part but not the whole of the same, and executed the mortgage without noticing the clause in question, or the blank, and that the respondent, through inadvertence, did not call his attention to the blank, nor request him to agree upon some time with which to fill the same.
    The report of the committee having been made and accepted by the court, at its term in October, 1856, the petitioner moved to be allowed to amend his bill, by inserting in the place of the allegation that the respondent agreed that Mrs. Smith would permit the money to remain unpaid for a period of not less than five years from the time of the purchase, the allegation that he agreed that it should so remain for a number of years at least, unless sooner enforced by the said Julia Smith ; and in the place of the allegation, that it was agreed that the blank in the mortgage deed should be filled with the words, “ not less than five years,” the allegation that said blank should have been filled according to the aforesaid understanding and agreement of the parties; with sundry other like amendments to adapt the allegations of the bill to the facts as found by the committee.
    The respondent objected to the allowance of the amendments, claiming that they were not in their character allowable, and that no such amendments could be made at that stage of the proceedings, and further claimed that they should be allowed, if at all, only on payment of costs, and insisted that if they were allowed, the report should be rejected, and he be heard anew on the petition as amended.
    The questions arising on said motion, and the question what decree should be made on the facts as found, were reserved for the advice of this court.

      Ferris and Loomis, for the petitioner.
    1. The court has power, at any time before judgment, to allow amendments at its discretion, according to the circumstances of the case. Sargeant v. Dennison, 2 Cow., 515. Rees v. Overbaugh, 4 ib., 124. Belts v. Hoyt, 13 Conn., 469, and cases there referred to.
    2. The report of the committee shows that the petitioner is entitled to relief. And if it appears that the allegations in the bill are not adapted to the relief which the facts found might require, a court of equity will give the petitioner an opportunity to amend his bill accordingly. Pond v. Smith, 4 Conn., 297.
    3. If a serious and irretrievable loss will result to a party from the refusal of an amendment, beyond the loss of a bill of costs and the expense and delay of commencing and prosecuting another suit, the court will allow the amendment asked for. This is peculiarly the case in question. Betts v. Hoyt, supra.
    4. A court of equity will not put the party to the expense and delay of a rehearing, nor compel a party asking for an amendment to pay costs upon its allowance, unless it appears from the case that justice requires it. No facts appear in this ease showing that justice requires either. The petitioner is prepared to show, and claims that he ought to be permitted to show, should any doubt exist in the mind of the court upon this point, that all the witnesses present at the negotiation, testified before the committee, and that the finding of the committee was based upon the testimony of the respondent and his own witnesses. The respondent can not have been surprised therefore by the committee’s report, and can not be injured by the amendment, or benefited by a rehearing.
    5. The petitioner claims that whether the petition is amended or not, he is entitled to a decree that the respondent shall be enjoined against further prosecuting his suit at law, as the report clearly shows that the action was prematurely brought.
    Hawley, for the respondent.
    1. The amendment can not be made at all. It would introduce an entirely different complaint. The petition now counts on an explicit agreement for five years, “ not less than five years,” and avers that such agreement was essential to Camp. If amended as proposed, the agreement and whole case would be entirely different, a mere “ understanding” for no definite time, dependent entirely on Mrs. Smith’s pleasure.
    2. If the court can allow the amendment, it ought not to be allowed; for 1st. The petition does not go at all to the merits of our claim, only to the time when the action was brought, and about six years have now passed since the covenant was made. 2d. There was a lapse after our suit was brought of nearly three years before the petition was brought, the petitioner having, during all this time, full knowledge of every thing he now knows. This willful delay is a sufficient answer to his motion. 3d. The amendment would be nugatory, for the petition, if amended, would entitle to no relief. It would set forth no contract, and the “understanding” would, if regarded as a contract, be inoperative for uncertainty, no time being fixed, and all dependent on Mrs. Smith’s pleasure.
    3. After the report, it is too late for such an amendment. The case stands on the same footing as if the court had found the facts. Smith v. Barber, 3 Day, 312, 315. Hamilton v. Wilson, 1 East, 383, 391. Robinson v. Bayley, 1 Bur., 316, 322. 1 Swift, 779. Betts v. Hoyt, 13 Conn., 469. Cooper’s Pl., 333, 4. Mitford’s Pl., 250, 261, 263. Jones v. Jones, 3 Atk., Ill. Dormer v. Fortescue, 3 ib., 124, 133. Goodwin v. Goodwin, 3 ib., 370.
    4. If an amendment can be allowed, the respondent should have full costs.
    5. And in such case we should have a new hearing. The authority of the committee was merely to find the facts in the case before the court, on the petition as it was. The only claim of the petitioner on the trial, was that the averments of that petition were true; the respondent denied them, and his attention was called only to the denial of them; not at all to the question of the truth of any other matters inconsistent with them; and he has never been heard in reference to such inconsistent matters, and they were, indeed, matters not in issue on the petition. The statute relating to proceedings in equity, (Rev. Stat., tit.xii., ch. 1, sec. 5,) is clear and peremptory; “ in all cases of amendment of a bill, &c., the court shall grant the defendant a reasonable time to make answer thereto.” Independently of the statute, such is (and for all purposes of justice must be) the practice at law and in equity. 1 Sw. Dig., 639. Calvary v. Williams, 1 Vez. Jr., 210. Angersteine v. Clarke, 1 ib., 250. Spurrein v. Fitzgerald, 6 ib., 548. Mit. Pl., 260. An amended writ or bill is a new writ or bill.
    6. On the facts found, the petition, as it stands, must fail > all its material averments are found untrue, and nothing is found that could entitle to relief. 1st. No agreement at all is found, but merely that the “ understanding was that the debt might lie a number of years unless enforced by Mrs. Smith;” that Waring merely said the mortgage debt would probably be permitted to lie, but that Camp could learn by enquiring of Mrs. Smith, who lived near by. It is found that Camp made no promise to pay in any given time, and that Waring did not promise that Mrs. Smith would not enforce the mortgage. All this clearly shows that the “ understanding,” so called, was (not at all of the nature of a contract, but) a mere opinion entertained; Camp, with abundant opportunity to do it, taking no pains to ascertain whether that opinion was well grounded or not; and having neglected to make any inquiry, he can not complain. 2d. But again, that understanding or opinion obviously was merely that Mrs. Smith would let the mortgage debt lie, on such arrangement as Camp might make with her, he, Camp, assuming it; not that Waring should remain personally liable, and his other property remain mortgaged for it for an indefinite time. His very object was to clear himself and his other property of that indebtedness, as a part of the price for that he sold to Camp. 3d. There is no pretense of omission by mistake in the preliminary contract; and the deed was in all respects conformable to that contract, with the single exception of the blank left, by the scrivener at his own suggestion; the deed, as it is, with that blank, importing the same as the deed without it would. 4th. But even a contract, that the debt should lie for “ a number of years,” in the very language of the finding, and of the proposed amendments, would be void for uncertainty; so that the petition, if amended as prayed for, would entitle to no relief. What would be the meaning of “ a number of years,” especially when the time was dependent on the pleasure of Mrs. Smith 1 And when could an action be maintained on such a contract ? 2 Sto. Eq. Jur., secs. 764, 767. Chit. Con., 5th Am. ed., 72. Bromley v. Jeffries, 2 Vern., 415. Clinan v. Cooke, 1 Sch. & Lef., 22, 40. Lindsay v. Lynch, 2 ib., 1, 6. Harnett v. Yielding, 2 ib., 549, 555. Guthing v. Lynn, 3 Barn. & Ad., 232.
   Storrs, C. J.

We are of opinion that it was competent for the superior court, in its discretion, at any time before the passing of a decree in this case, to allow any proper amendments to the petition to be made by the plaintiff; and such amendments are not, therefore, precluded by the return of the report of the committee ; and also that the amend» ments proposed to be made are not, in their character, such as are not allowable by the court. Whenever such amendments are allowed, it is discretionary with the court, under all the circumstances of the case, to permit them to be made with or without costs. Ordinarily, if new facts are introduced into the petition, by way of amendment, which would not properly be the subject of proof under it as originally drawn, and which were not inquired into on the hearing of the facts upon it, whether by the court or a committee, the court should give to all the parties an opportunity to be heard in regard to such new facts, either before itself, or the same or another committee. But if, although such new facts would not strictly be a legitimate subject of inquiry on the original petition, yet if on the hearing upon it, the parties voluntarily permitted and went into a full inquiry in regard to them, and they are embraced by the report of the committee, it would not be incumbent on the court to allow any further inquiry into them. It would, however, be competent and proper to do so, if the court entertained any doubt whether the parties had already had a full hearing in regard to them.

It is plain, and indeed it is not disputed, that in this case, on the petition as it was originally framed, the plaintiff would not be entitled to any relief, for the reason that it is found by the committee, that there was no such contract between the parties as that set up in the petition. It is found that there was no such stipulation as is therein alleged, in regard to the time for which the debt due Mrs. Smith was to be suffered to remain unpaid; but it would appear that the parties, by mutual consent, went into a full inquiry, before the committee, in regard to the contract actually made between them. The manner in which the report presents the facts, is hardly consistent with any other supposition, and it is not claimed that such was not the case, or that there is any new or further evidence on the subject. The object of the plaintiff now in amending his petition as he proposes, appears to be only to conform his petition to the finding of the committee in regard to the real terms of said contract. He claims that, according to that finding, it was one of its terms that the debt due to Mrs. Smith should be permitted to remain unpaid for a number of years at least, from the time of the purchase, unless it was sooner enforced by Mrs. Smith. It is unnecessary to consider whether such a stipulation would be void for indefiniteness or uncertainty, or whether such a time had not elapsed before the plaintiff brought his suit against the defendant, that the former had a right to require its performance. Whatever might be thought of its validity or effect, on a just construction of the report of the committee, we think that it is not found, as it should have been, affirmatively, if the fact was so, that it formed one of the terms of the agreement between the parties. Without taking time to comment at large on the language of the report, we think that, taking it all together, its fair import is, not that the parties intended to incorporate into their contract any positive or definite stipulation, by which either of them should be absolutely bound, as to the time for which payment by the plaintiff of the debt due to Mrs. Smith should or might be deferred, but only that what passed, in the negotiation which preceded and led to the. contract, produced a mere expectation or belief that the debt would be suffered to lie for a number of years at least, unless enforced by Mrs. Smith. This construction or inference seems to be irresistible when we look at the precise terms on which it is stated that the parties “ agreed” in regard to the payment of that debt, in connection with the subsequent explicit finding, as to certain points in regard to the delay of its payment, that there was no agreement between them, and the significant manner in which it is subjoined what the “ understanding” was, in regard to that debt being permitted to lie. The context here shows that the word “ understanding,” always a loose and ambiguous one, unless accompanied with some expression to show that it constituted a meeting of the minds of parties upon something respecting which they intended to be bound, was used, not to express anything which was the subject of an agreement or contract between the parties, but only that kind of expectation or confidence upon which parties are frequently willing to rely without requiring any binding stipulation.

This construction is strongly confirmed by the fact that in the contract drawn by the attorney of the parties, and executed by them, and which preceded and was the basis of the subsequent mortgage to the defendant, no time is specified within which the debt of Mrs. Smith should be paid, and there is no claim that that contract was, in any respect, inaccurately expressed. If we have correctly apprehended the questions on which our advice is sought, we are of opinion that inasmuch as the amendment proposed by the plaintiff would not be of any avail to him, it should not be allowed but that the bill should be dismissed.

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

Advice that bill be dismissed.


text:
    School District No. 1 vs. Dauchy.
    The act of God will excuse the non-performance of a duty created by law, but not of one created by contract.
    The apparent exceptions to this rule, as where the performance of a contract is excused by the death of a party who was personally to perform, or the destruction of the specific subject matter of the contract, are rather casesof an implied condition as to such contingency, than of absolute contracts discharged by the act of God.
    Where, therefore, A. agreed to build and complete a school-house by the first Monday of May, 1854, and had nearly completed the same on the 27th of April, 1854, when the building was destroyed by lightning, whereby alone he was prevented from performing his contract, which was absolute in its terms, — it was held, that the non-performance was not excused by such destruction of the building.

      Assumpsit. The declaration contained a special count for the non-performance of a contract by the defendant to build a school-house for the plaintiffs, and the money counts.
    The defendant, on the 7th day of December, 1853, made a contract in writing with the plaintiffs to build the schoolhouse for the sum of $2,469, and to complete the same by the first Monday of May, 1854; a part of the price to be paid by installments as the work progressed. The defendant commenced the building of the same, and had nearly completed it, when, on the 27th day of April, 1854, it was struck by lightning, and consumed by the fire communicated thereby. At this time he had received $1,000 of the price, having been entitled thereto under the contract, by the progress of the work. The plaintiffs, on the day following the destruction of the building, requested him to erect another building on the same site and of the same description, and offered to waive the condition of the contract with regard to the time within which the building was to be completed, and to allow him such further time as should be necessary. The defendant declined the offer and refused to do anything more toward the performance of the contract, and the plaintiffs brought suit.
    The defendant pleaded the general issue, with notice that he should offer evidence to prove, that performance of the contract was rendered impossible by the destruction of the building in the manner stated, and that up to the time of its destruction he had performed everything that by the contract he was bound at such time to have performed.
    The case was tried before the jury, at the superior court for Fairfield county, October term, 1856.
    On the trial, it was admitted that the defendant had performed all that was required of him by the contract up to the 27th day of April, 1854, and that he would have completed the building within the time required by the contract, if it had not been at that time destroyed by fire.
    The defendant offered evidence to prove that the building was struck by lightning, and the fire by which it was consumed communicated thereby. To this evidence the plaintiffs objected, but the court admitted it. The defendant claimed that by such destruction of the building he was excused from further performance of the contract. The plaintiffs denied this claim and requested the court to charge the jury that such destruction was no excuse for non-performance, and no defense to the action.
    The plaintiffs also requested the court to instruct the jury, that by reason of their offer to waive the stipulation of the contract as to the time within which it was to be performed, and to allow the defendant the necessary time for the erection of another building, and the refusal of such offer by the defendant, they were entitled to a verdict, even if the defendant would otherwise have been excused from performance; and that if the defendant was not liable for such non-performance, the plaintiffs were entitled to recover back on the money counts, the sum of one thousand dollars which had been paid him under the contract.
    The court charged the jury, that if they should find that up to the time the building was burnt, the defendant had done everything required by the contract to be done, or necessary to be done by that time in order to the completion of the building in the time stipulated, and that complete performance of the contract was rendered impossible by the burning of the building, and that the burning was occasioned by lightning alone, they ought to find the defendant released from further performance of his contract and render a verdict in his favor. That by the “impossibility” spoken of, was meant an absolute, physical or natural impossibility, inherent in the nature of the thing to be done ; and that no inconvenience merely, no expense and no necessity for extra aid or effort, however great, if within human reach or control, would constitute such impossibility.
    That if the defendant’s liability for the further performance of the contract had been released by reason of such burning of the building, his liability on the contract could not be revived by the offer of waiver, and request to rebuild, made by the plaintiffs, unless the defendant accepted such offer.
    And that if the jury should find that the defendant was so released from the further performance of his contract, so that no recovery could be had by the plaintiffs on the special count in the declaration, no recovery could be had by them on the common counts.
    The jury returned a verdict for the defendant, and the plaintiffs moved for a new trial.

      Hawley and Ferry, in support of the motion.
    1. The charge of the court, upon the first point, proceeded upon the idea, that the burning being occasioned by lightning, was an “ act of God,” as that phrase is used in the books, and released the defendant from the obligation of his contract. Warren v. Powers, 5 Conn., 373. This idea was erroneous. The distinction in the cases is between that class, where the obligation is imposed by operation of law, and that where the obligation is created by the express agreement or covenant of the party himself. In the former, the phrase “ act of God,” has been applied to a variety of unavoidable accidents, which have been held to discharge the legal liability. In the latter class, the only contingency to which that phrase has been applied, as excusing performance, has been the death of the party who alone in his own proper person could perform the thing to be done, or the destruction of the very thing, which, identically, was to be delivered, sold or transferred, and which it was physically impossible always for human power to cause to exist. 2 Co. Lit., 206. 3 Co. Lit., note 1. to 206, a. Williams v. Lloyd, Wm. Jones, 179. 2 Pars. Cont., 184. Bac. Ab., Condition N. Chit. Cont., 5th Am. ed., 57, 59, 735. 1 Selwyn, N. P., Covenant, chap. 3. Newland Cont., 325. Walton v. Waterhouse, 2 Saund., 420, note. Monk v. Cooper Strange, 763, Bullock v. Dormitt, 6 T. R., 650. Atkinson v. Ritchie, 10 East, 530. Adams v. Nichols, 19 Pick., 275, 279. 1 Sw. Dig., 93. 2 Kernan, 99.
    2. The burning by lightning only prevented the performance within the time contracted for. But time is not of the essence of the contract, and the waiver thereof the next day, before the expiration of the time limited in the agreement, rendered the obligation of substantial performance still binding on the defendant. 2 Pars. Cont., 185.
    3. But if the defendant was wholly excused from the performance of his contract, the plaintiffs are entitled to recover the money paid on the common counts.

      Dutton and Carter, contra.
    1. The defendant was excused for non-performance, and the charge of the court to that effect was correct. 1st. The general principle is, that a man is not responsible for not doing what God has rendered impossible. 1 Sw. Dig., 287. Warren v. Powers, 5 Conn., 373, 381. 2d. This rule applies where there is only a common law duty, as in the case of bailees. 1 Sw. Dig., 391. 3d. Also to conditions to obliga, tions, whether under seal or not. 2 Pars. Con., 184. Laughter's case, 5 Co. Rep., 22. Broom’s Leg. Max., 110. Com. Dig., Condition L., 12, D. 1. 4th. Also to express contracts, to the extent at least of the charge. Shelley's case, 1 Co. Rep., 98. 2 Pars. Con., 184. Wright v. Bean, 22 Maine, 531. 2 Green. Ev., sec. 135. Jones v. Judd, 4 Comst., 412.
    2. This is not a case where the defendant could have substantially performed. In the case of Phillips v. Stevens, 16 Mass., 238, the performance was not impossible. In White v. Maine, 26 Maine, 361, the defendant could have substantially fulfilled without loss.
    3. The money paid can not be recovered back. 1st. When it was^ paid, it was due by the terms of the contract, and the defendant had a right to it. 1 Pars. Con., 386. 2. The consideration has not failed. The property of the building vested in the plaintiffs, and the loss was their loss. 34 Eng. L. & Eq., 178. 3d. The act of God left the parties just as they were at the time. Actus Dei nemini facit injurian It never deprives a man of lights previously acquired.
   Ellsworth, J.

It is not important, whether we consider the question in this case as arising out of the objection to the defendant’s evidence, or out of the charge to the jury. The question is the same in either case, and it is this. Was the defendant discharged from his contract to complete and deliver the said school-house by the time agreed, the first Monday of May, 1854, by reason of the fact, that just before that day it was burnt and wholly destroyed by lightning ?

There is no dispute as to the terms of the contract, nor as to their import and force. The defendant did agree absolutely and unqualifiedly, that the building should and would be completed and ready to be delivered to the plaintiffs by the first Monday of May at the farthest. This he has not done. The building has not been completed nor delivered, although it is true he nearly finished it, and it is found could and would have completed it, had it not been destroyed by lightning. In the contract, he made no provision for any contingency or event whatever, and the question is, can he now incorporate into his contract a provision for a contingency or a condition, or must he abide by his positive and absolute undertaking.

We believe the law is well settled, that if a person promises absolutely, without exception or qualification, that a certain thing shall be done by a given time, or that a certain event shall take place, and that the thing to be done or the event is neither impossible or unlawful, at the time of the promise, he is bound by his promise, unless the performance, before that time, becomes unlawful. Any seeming departure from this principle of law, (and there are some instances that at first view appear to be of that character,) will be found, we think, to grow out of the mode of construing the contract or affixing a condition, raised by implication from the nature of the subject, or from the situation of the parties, rather than from a denial of the principle itself. Such, for instance, as a promise to marry, where it must be presumed that the parties agree to intermarry if they shall be alive; or a promise to deliver a certain horse at a future time, and before the day arrives, the horse dies; in which case, the parties are held to have contracted in view of that contingency. In these and like cases, the court will hold that the parties did not understand that the thing was to be done, unless the life of the persons, or of the horse, was continued, so that there would be an object and an interest in the execution of the contract. These and a few other exceptions of a similar character, are to be found in the books, but they are not so much exceptions after all, as cases where the intention of the parties is presumed or inferred, though not expressed, from their peculiar situation, or from the subject matter itself.

It is said, however, that there is one real exception to the rule, viz., where the act of God intervenes to defeat the performance of the contract; and that is the exception on which the defendant relies in this case. The defendant insists, that where the thing contracted to be done, becomes impossible by the act of God, the contract is discharged. This is altogether a mistake. The cases show no such exception, though there is some semblance of it in a single case which we will mention. The act of God will excuse the not doing of a thing where the law had created the duty, but never where it is created by the positive and absolute contract of the party. The reason of this distinction is obvious. The law never creates or imposes upon any one a duty to perform what God forbids or whatiie renders impossible of performance, but it allows people to enter into contracts as they please, provided they do not violate the law. It is further said, that the books declare, that where the condition of a bond becomes impossible by the act of God, or is prohibited by the law, the condition becomes void and the bond is absolute, or if it be a subsequent condition for the devesting of title, that the condition becomes void, and the title remains good. Whether even this is true, without some qualification, we are not quite confident, nor will we stop to consider; but if so, still, the doctrine of that class of cases does not reach the present one, as the same books abundantly declare.

In Platt on Covenants, p. 582, it is said that the rule laid down in Paradine v. Tone, Alleyn, 27, has often been recognized in courts, as a sound one, viz.: where a party by his own contract creates a du-ty or charge upon himself, he is bound to make it good, if he may, nothwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore if a lessee covenants to repair, the circumstance of the premises being consumed by lightning, or thrown down by an inevitable flood of water, or an irresistible tornado, will not effect his discharge. But where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him, as in the case of waste where the house is destroyed by a tempest. In some cases where the act of God renders performance absolutely impossible, the covenants shall be discharged quia impotentia excusat legem; as if a lessee covenants to leave a wood in as good plight as the wood was at the time of the lease, and afterward the trees are blown down by tempest; or if one covenants to serve another for seven years, and he dies before the expiration of the seven years, the covenant is discharged, because the act of God defeats the possibility of performance. I should rather say, because it is implied that the thing shall exist or life be prolonged, or else the contract of course can not be broken. Chit, on Coni, 5 Am. ed.. p. 60, says, “ But a promise is not void against the party who makes it, merely because its execution is improbable or difficult, or because the impossibility of performing it applies only to the promisor individually, the law not forbidding the thing to be done, and there being no breach of moral duty involved in it. If a party by his own contract, lay a charge upon himself, he is bound to perform the stipulated act or pay damages for the non-completion, unless the matter was, at the time, manifestly and essentially impracticable.” The same is laid down in 2 Pars, on Con., 184. In Com. Big., tit. Condition d. 1, it is said, “ And if a man covenants or promises to do a certain thing, at a certain time, and it becomes impossible by the act of God, he shall not be excused.” See the cases of Bullock v. Commit, 6 Term R., 650, where the lessee was held bound to rebuild in case of fire, Monk v. Cooper, 2 Str., 763, and Atkinson v. Ritchie, 10 East, 530, where the freighter of a vessel covenanted to proceed to St. Peters-burg!} and there take a full cargo, but was prevented by an embargo. Lord Mansfield and the other judges held that no exception not contained in the contract itself, could be engrafted upon it by implication, as an excuse for its nonperformance. The rule laid down in the case of Paradine v. Tone, Alleyn, 27, has been often recognized in courts as a sound one, that where the party 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. In Burret v. Dutton, 4 Camp., 333, Gibbs, C. J., says, “ Ice being in the Thames, which rendered it impossible, did not excuse the non-performance of the charter party : there was an absolute undertaking by the freighter of this ship, to load and discharge her in thirty days, and whether it was or was not possible for him to do so from the state of the weather, is quite immaterial.” So in Barker v. Hodgson, 3 M. & S., 267, it was held, that an infectious disease at a port, which prevented commercial intercourse, did not discharge or qualify the covenant in the charter party. So in Shubrick v. Salmond, 3 Burr. 1637, it was held, that though contrary winds and bad weather would not allow of the captain’s proceeding with his vessel to her port in South Carolina, as he had agreed to do, the covenantor was liable. The same principle is laid down in Harmony v. Bingham, 2 Kernan, 106, that “ where a party engages unconditionally by express contract to do an act, performance is not excused by inevitable accident or other unforeseen contingency, not within his control.” So in Adams v. Nichols, 19 Pick., 275, the court held that where a person contracted'to build a house on the land of another, and the house was, before its completion, destroyed by fire, without his fault, he was not thereby discharged from his obligation to fulfill his contract. The court most fully recognize the rule, that the act of God will not operate to discharge a promise which is absolute and unqualified in its terms, though the contingency is beyond the power of the contractor. The same is held in Lord v. Wheeler, 1 Gray R., 283, though the case was taken out of the rule by its peculiar circumstances.

These and other authorities which might be cited, satisfy us that the law was not correctly laid down in the court below, and concurring as we do with the doctrine of those cases, we advise a new trial.

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

New trial advised.


text:
    The State vs. Beecher.
    The superior court having appellate jurisdiction over certain complaints under the act for the suppression of intemperance, by force of a provision of the act that any person may appeal from a final judgment rendered against him on any such complaint by a justice of the peace, has no jurisdiction of a case brought to that court by an appeal from a judgment of respondías ouster.

    And a party taking such an appeal, and giving bond to answer to the complaint before the superior court and abide its judgment thereon, is not estopped thereby from asserting such want of jurisdiction.
    This was a complaint under the 8th section of the act for the suppression of intemperance, brought by three electors of the town of Seymour, to a justice of the peace of said town.
    The defendant appeared and pleaded sundry matters in abatement, on which an issue was closed and judgment rendered that the defendant answer* over to the complaint. From this judgment the defendant appealed to the superior court then next to be holden in the county of New Haven, giving bond with surety that he would appear before said superior court, answer to the complaint, and abide the judgment that might be rendered thereon by said court.
    In the superior court the defendant moved that the cause be erased from the docket for want of jurisdiction in the court, apparent on the record, and the questions arising on the motion were reserved for the advice of this court.

      II B. Munson, in support of the motion.
    The jurisdiction of the superior court in criminal cases is derived solely from the express provisions of the statute.
    In the present case its jurisdiction is wholly appellate, and of course it has no jurisdiction of a case not legally appealed. By the statute for the suppression of intemperance, on which this complaint is founded, the judgment appealed from in a caselikethis must be a final judgment. See sec. 10, Ed. 1854, p. 822. The language of the statute is, “ any person may appeal from a final judgment rendered against him by a justice of the peace for a first and second offense under secs. 8th and 9th, &c.” Here the judgment appealed from was one of respondeas ouster, and not final. The want of jurisdiction being apparent on the face of the record, a motion to erase from the docket is the proper remedy, and the motion should be granted. It being a matter of jurisdiction, which can not be conferred even by express consent, the defendant can not by taking the appeal be held to have waived the objection.

      Foster (State Attorney) and Wooster, contra.
    The defendant’s motion ought not to prevail.
    1. The court will not order a case stricken from the docket unless it clearly has no jurisdiction ; and then only where the record discloses the want of jurisdiction. In this case there is a proper complaint, charging in proper form an offense cognizable by this court, and the case is before the only appellate tribunal constituted by law to hear it; and the appeal vacating all prior judgments, it is of no practical importance what the prior proceedings were. The doings of the court below are not in issue in the appellate court, on an appeal. The case is in the right court, with the same rights to either party that could be had by appeal at any stage of the case. The case is therefore properly before the superior court. State v. Wickwire, 19 Conn., 477, 484. State v. Smith, ib., 493.
    2. The appeal was allowed by the justice at this stage of the case at the request of the defendant, and he can not now take advantage of an error, if any there be, procured by himself. The ease is not like those where the court has no jurisdiction whatever. Here the court has an appellate jurisdiction, and the defendant himself has brought the case to the court for it to assume that jurisdiction. The defendant has also come into court himself, and now why shall not the court assume jurisdiction and try the case ? If the appeal was void and no case in court, then the defendant should not have appeared.
    3. The appeal was properly taken. The term “ final judgment” in the statute may properly be held to mean a judgment upon an issue that may be final. Had the judgment on the plea in abatement been in favor of the defendant it would have been final. The statute must have intended to allow such an appeal, since if a defendant wishes to pursue his cause of abatement, he can do so only by an appeal. Had the defendant in the case pleaded to the action, he would have complied with the judgment of the justice, and waived his cause of abatement, and would therefore stand in court just where he would, had he pleaded to the action in the first instance. In this case he followed the precise course marked out by this court in the case of the State v. Wickwire, 19 Conn., 477.
   Storrs, C. J.

The superior court has no jurisdiction in this case which is not conferred by statute. On referring to the 10th section of the act “for the suppression of intemperance,” (Stat. Ed. 1854, p. 822,) which gives jurisdiction to that court in cases arising on the eighth section of that act? on which the present complaint is founded, it appears that such jurisdiction is only appellate in its character, and that an appeal to that court by the accused is allowed only where “ a final judgment is rendered against him by a justice of the peace.” As the jurisdiction of that court does not attach until an appeal could be taken to it from the judgment of the justice, and that could be done only after a final judgment had been rendered by him, it results that the appeal having been taken, in this case, from a judgment of respondeas ouster, on a plea in abatement, which plainly is an interlocutory, and not a final judgment, and one which, therefore, the superior court, as an appellate tribunal, had no power to review, it was unauthorized and therefore void, and conferred no jurisdiction on that court. And as such want of jurisdiction appears here on the face of the record, the case ought to be struck from the docket of that court. However ungracious it may be for the defendant to question the validity of the appeal in this ease, which was taken by himself, he is not, as claimed by the plaintiff, precluded from .doing so, as it is an objection to the jurisdiction of the court. It is a familiar principle that jurisdiction can neither be conferred, nor a want of it waived, by either or both of the parties. The superior court is advised accordingly.

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

Case to be stricken from the docket.


text:
    Bouton vs. The American Mutual Life Insurance Company.
    A provision in a life insurance policy, that in case the annual premium shall not be paid in advance the policy shall cease and determine, being for the sole benefit of the insurers, it is competent for them, after the time stipulated for the payment, to waive a strict compliance with it, and in case of such waiver, the policy will be revived and continue obligatory on its original terms; and the acceptance of the premium constitutes such a waiver.
    A provision in such a policy, that it shall not be binding until countersigned by W , agent, and delivered and the advance premium paid, does not'confer on *W. authority to accept the payment of a subsequent annual premium, after the day when by the terms of the policy it was payable and where the policy by reason of such non-payment had ceased to be obligatory.
    An agreement made in good faith between an insurance agent, having authority to receive an insurance premium, and the insured, that the agent shall become personally responsible to his principals for the amount of such premium and the insured his personal debtor therefor, constitutes a payment of the premium as between the insured and the insurance company*

      This was an action on a policy of insurance issued by the defendants on the life of Josiah Bouton, for the benefit of the plaintiff his wife.
    By the policy, which was set out on the declaration, and which was dated the 25th day of February, 1851, the defendants, in consideration of the sum of $114.34, to them paid by the said Josiah Bouton, to January 1st, 1852, and of the premium of $134.80 to be paid annually on the first day of January during the continuance of the policy, or half or quarter yearly in advance, with interest on each portion deferred, insured the life of the said Josiah, for the use and benefit of the plaintiff, in the sum of $4,000 for the term of his natural life, and promised to pay said sum to her within ninety days after due notice and proof of the death of said Josiah. It was also provided in the policy that in case the annual premium should not be paid in advance, the company should not be liable for the payment of the sum insured and the policy should cease and determine. The concluding clause of the policy was as follows. “ In witness whereof, the said American Mutual Life Insurance Company have, by their president and secretary, signed this contra"' ° 25th day of February, 1851; but the same shall not bu s ing until countersigned by W. W. Webb, agent, and deliv and the advance premium paid.” The policy was sigvthe president and secretary, and on the 27th day of Febr countersigned by the said Webb.
    The said Josiah Bouton died on the 9th day of Ja 1852. The plaintiff alledged a payment to the defem of the annual premium which became payable on tb day of January, 1852, which the defendants by their j _d ings denied, and claimed that the policy had expired before the decease of the said Josiah.
    The case was tried before the jury on the general issue, with notice, at the term of the superior court holden in New Haven county, in March, 1856. ■ ' >
    On the trial, the plaintiff, for the purpose of proving the premium in question had been paid, and that the policy was in force at the time of the death of the said Josiah, offered evidence to the following effect:
    That the said Josiah, on the 2d day of January, 1852, having been somewhat unwell for a few days, and then confined to his house, sent for Mr. Webb, the insurance agent, to call and see him about his life insurance policy; that Webb came in the afternoon of the same day ; that the said Josiah then said to him that he had sent for him about his insurance policy, that he told Webb that he had but 018, and asked him if that would make his policy safe ; that Webb replied, “ seeing you are so sick and unable to get out, 1 will take the 018, and accommodate you until you get out;” that the said Josiah thanked him, and told him that Mrs. Bouton would hand him the 018 ; that Mrs. Bouton then went with him into the front parlor and handed him the money, which he counted over; that she asked him if it was correct, and he said “ yes, I will take this 018 and give your husband credit for having paid so much towards his premium,” and on her asking if it was all right and would secure the policy till .her husband could get out and pay the '"udcr, added “ yes, it is all right and I hope your husvvlfi get out in a few days and pay the balance.” Also »ae Dauchy, who occupied the same store with the said ah, and was daily at his house during his sickness, on the i\,y «."January, 1852, went to see Webb with regard to a». nr, of thebalance of the premium, and requested him r }; money and give him a receipt; that Webb repeated .mtlio above stated conversation at Bouton’s house, and owledged receiving the 018 from Mrs. Bouton, but deed d to receive the balance except under protest, and was ? pilling to give the receipt requested, but suggested that Baachy might pay the amount to the young man in his (Webb’s) office; that Dauchy asked him the amount due, which he fv'med to be 0116; and that Dauchy at once went to*the store no got the money and paid it to the young man HVVebb’s office: A appearing on cross-examination, that the said Josiah was considerably worse that day, which was known to the said Duvchy, end that Webb said to him, at the time that he proposed to pay him the balance of the premium, that it was against the rules of the company to receive the premium from a person who was sick, after the policy had expired, and against his instructions.
    Upon the foregoing evidence, (with other evidence not important to the questions here raised) the plaintiff rested her case, and the defendants moved for a nonsuit, which the court refused to grant. The defendants thereupon offered no evidence, but claimed, and requested the court to charge the jury:
    That upon the facts claimed by the plaintiff she was not entitled to recover: that the policy of insurance, expired by its own terms on the 1st day of January, 1852, by reason of the non-payment of the premium thereon on or before that day: that the evidence submitted by the plaintiff did not confer upon Webb any power to make a new contract obligatory on the defendants, or to renew the old contract after its expiration, especially under the circumstances proved, when the risk attempted to be assumed was increased by the sickness of the insured: that if Webb had the power to renew the contract after its expiration, he had no power ,:o change its terms: that the smallest amount which by tin; terms of the policy could at any time be received in renewal, was 033.70, or payment for one quarter, and that his reception of a less sum did not operate to renew the contract: that the 0116 paid by Dauchy, in the manner stated, on the 5th day of January, to the clerk of Webb, did not operate fr renew the policy.
    The court did not so charge the jury, but instructed tfc as follows:
    The policy described in the plaintiff's declaration expired by its terms on the 1st of January their authorized agent; and when so i the same effect as if it had not been permitted to esipjre. The defendants insist that the evidence submitted plaintiff does not confer upon Webb the powei^^^heir agent, to do any act that will revive this polic|^^|^° purpose of this trial you will take the the such a contract as could be revived agent, Webb, was by virtue of his relations to this company, as indicated in this policy, authorized to receive the annual payments of premium due; and if he has done so, even after the 1st day of January, 1852, and it was done in good faith, its effect is to revive the policy, and make the company liable thereon. He had the power to renew the policy only on its original terms. He could not change or vary it. He might also renew this policy, not only by receiving the annual premium in money, but he might agree to become responsible himself, personally, to the company, for the premium, and make the insured his debtor for the amount: and if he has done this in good faith, it amounts to a payment of the premium, and the policy is thereby revived. The money paid by Dauchy, if not in effect paid to and received by Webb as agent of the defendants, as premium due on this policy, would not revive the policy. Whether it was so paid and received is for you to say.
    If you shall find that the premium upon this policy was paid to and received by Webb, as the agent of the defendants, in good faith, though the same was paid after the 1st day of January, 1852; or if you shall find that Webb agreed to become personally responsible to the defendants for the premium, and to make Mr. Bouton, the insured, his debtor, and that this was also done in good faith, though done after January 1, 1852, you will return a verdict for the plaintiff, otherwise your verdict will be for the defendants.
    The jury returned a verdict for the plaintiff, and the dedants moved for a new trial for a misdirection, and for a fict against evidence.

      Blackman and Beach, in support of the motion.
    policy by its own terms, “ ceased and determined ” on^re 1st day of January, 1852. Tarlton v. Stanforth, 5 T. R., 695. Want v. Blunt, 12 East, 182. Russe v. Mutual Insurance Co., 8 Georgia, 584. If it was ever revived, ^^aso, not by the company directly, but by Webb, actingl^^j^eir agent. But we claim that Webb had no power Ifcvive the policy after its expiration; and that if he had the power, the acts in question were not sufficient for that effect.
    1. There was no evidence as to the fact of Webb’s agency, or as to his powers as such agent, except that the policy of insurance contained the clause,- “ not valid until countersigned by W. W. Webb, agent, and delivered and advance premium paid.” The judge in his charge based his opinion entirely on this clause. In the absence of any acts or conduct of the principal, enlarging by implication the power of an agent, or of his omissions to act when he ought to act, to prevent such implication, neither of which is claimed here, the agent’s powers are limited by the authority originally conferred, both as between himself and his principal, and between the principal and third parties. Am. Leading Cases, 544. Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Kernan, 599, 632. The only powers conferred upon Webb by his being named as agent in this policy, were such as were requisite to enable him to carry into effect the contract it contained. He was authorized to receive the’first premium stipulated for in the policy, to deliveritto the insured, and thereafter to receive the subsequent premiums in the manner and at the times stipulated in the written contract, and as a matter of law he had no other powers, for none other can be legally inferred from the instrument under which he was appointed. If the company have ever done anything, or omitted to do anything, which would lead the insured or the public to infer that he had any other powers; or if there is any peculiar authority to be inferred as vested in an agent, because he is an insurance agent, such inferences are to be drawn by the jury, and not by the court.
    2. When the policy expired, Webb’s power á'S''Sgwá^H| pired with it. Acey v. Fernie,7 M. & W., 151. Washington Insurance Co., 4 Cow., 645. His powers ar^^P be measured by the same rule the day after the expirati^b as the year after. Whether the agent acts “ in good faifek^ is no criterion of his powers; if the act is within his autfwF^ ity, the principal is bound, though he acts in bad faith,
    3. If Webb could revive the contract in any mode, he had no power to change the terms of the policy, and to agree that a less sum than the premium named in the policy, should operate to revive it. The premium stipulated is the only consideration for the contract. If he could diminish the amount, he could waive it altogether, and agree that the policy holder should remain insured, without any premium paid or agreed to be paid ; or he could alter the contract in any other particular. The least amount which, by the terms of the policy, could at any time be received in renewal, was $33.70, and Webb received but $18.
    4. The judge erred in instructing the jury that if Webb agreed with the insured to become personally responsible to the defendants for the premium, it amounted to a payment of the premium, and the policy was thereby revived. We claim that he had no power to bind the company by such an agreement. He was appointed to receive the premiums under the policy. The policy specified distinctly that they were to be paid in cash. Webb knew this, and the insured knew it. An agent appointed to receive money, has no power, as such agent, to substitute himself as debtor to his principal, either by giving credit to the original debtor, or by an offset between himself and such debtor. Story on Agency, secs. 98, 99, 103, 413. Ward v. Evans, 2 Salk., 442. Todd v. Reid, 4 Barn. & Ald., 211. Russell v. Bangley, 4 Barn. & Ald., 395. Sykes v. Giles, 5 M. & W., 645. Underwood v. Nichols, 33 Eng. L. & Eq., 321. Kingston v. Kincaid, 1 Wash. C. C. R., 454. Holton v. Smith, 7 N. Hamp., 446. McCulloch v. McKee, 16 Penn. State R., 289. Kirk v. Hyatt, 2 Carter, 322. When the original authority is to receive cash, but the principal has by his acts or conduct or held out the agent as vested with other powers, pt becomes; a question of fact for the jury, how far this Red authority extends. Sheldon adm’rs v. Conn. Life Ins. 25 Conn., 207. Here the jury were told that this agent, apmted to receive money, and only money, from a debtor knew the limit of the agent’s powers, had, as a matter of law, a right to bind his principal, by assuming the debt upon himself.

      Dutton and Garter, contra.
    1. The charge of the court as to the power of Webb to revive the policy was correct. 1st. Webb is described in the policy as agent; this of course means general agent, unless there is something to restrict it, and gives the agent all the power of the principal. Methuen Co. v. Hayes, 33 Maine, 169. 2d. There is nothing from which any restriction can be implied, unless it is, that he is named as agent in connection with this policy. But this at most would only restrict his agency to this contract of insurance. He would still have the right to make any arrangement regarding this contract which the insurance company could. 3d. What the agent said of his instructions, would not prove what the instructions were. The defendants, to have claimed any thing from this, should have proved before the court what the instructions were. 4th. Any instructions to the agent would be of no avail unless communicated to the plaintiff. Perkins v. Washington Ins. Co., 4 Cowen, 645. Lightbody v. Am. Life Ins. Co., 23 Wend., 18. McEwen v. Montg. County Ins. Co., 5 Hill, 101.
    2. The charge of the court was correct as to the effect of Webb’s charging himself with the premium and accepting the insured as his debtor, and that such an arrangement would be equivalent to a payment of the premium. Sheldon v. Conn. Mutual Life Ins. Co., 25 Conn., 207.
    3. If Webb was the agent of the company, so far as this contract is concerned, he could waive the performance of the condition as to forfeiture of the policy. In Wing v. Harvey, 27 Eng. Law & Eq. R., 140, the court held that a similar condition could be thus waived. See also Angell on Fire and Life Ins., sec. 343. Also sec. 213, and note. Also, Buckbee v. U. S. Annu. Ins. & Trust Co., 18 Barb., 541.
    4. The agreement by Webb, and the recesp,'. oi >.!k renewed the policy, whether any thing further Wu¡;' lu, not. Masters v. Madison Co. Mutual Ins. ; \ JAvV
    5. The court left the question of paymet>_ of 1 y ¡-:i properly with the jury. The evidence ter >» . the money paid by Dauchy to the clerk, v. iixoivcu uy me authority of Webb, and amounted to a payment to him. What Webb said regarding the rules of the company was admissible only as part of the res gestae to be considered by the jury, on the question whether the money was received as payment. And the jury by their verdict have found it to have been so received. It was moreover Webb’s duty to receive it, both by his agreement to receive it, and because Bouton had acquired an interest in the policy by his previous payment. Ang. on Fire and Life Ins., see. 350. It is besides to be presumed, in the absence of evidence to the contrary, that both the sums received by Webb, were paid over by him to the company.
    6. The verdict was clearly not contrary to the evidence.
   Storrs, C. J.

In regard to the first point made by the defendants, as to the effect of the non-payment by the insured of the premium in advance, as required by the policy in this case, although the conclusion to which we have come, on the question as to the evidence in regard to the powers of the agent of the defendants, renders a decision of it unnecessary, yet, as another trial of the case must be had, we have considered that point, and are of the opinion that, as the policy provides that, in case the annual premium required by it should not be paid in advance as therein mentioned, the defendants should not be liable for the payment of the sum insured or any part thereof, and the policy should cease and determine, it was optional with the defendants, on such nonpayment, to consider and treat the policy as being at an end to all intents and purposes, in which case they would be absolved from all claim liability thereon ; but, that as that provision was inecrti •" -.. 'the solo bbueut-of the defendants, it was only^oidable ■ i>- election, and that it was tiiéte-competent for them to waive a strict compliance with .•fi the time stipulated for the payment of such premium; 'oat in case of such waiver, the policy would be revived , ontinue obligatory on the defendants on its original and further, that the reception by them, or their auagent of the premium for that purpose, after that time, would have the effect of reviving and continuing the contract evidenced by the policy as though it had been strictly complied with by the insured. The authorities in support of this opinion are so numerous, uniform and explicit, and the reasons for it are so fully and satisfactorily given in them, that we deem it sufficient only to refer to them. Wing v. Harvey, 27 Eng. L. & Eq. R., 140. Buckbee v. U. S. Annu. Ins. & Trust Co.. 18 Barb., 541. Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn., 207. Angel on Ins., § 213, and note, § 343.

The next question is, whether it was proved on the trial that Webb was authorized by the defendants, as their agent, thus to waive the non-payment in advance of the premium as required by the terms of the policy. The first premium due on it was paid in advance to Webb, up to Jan. 1, 1852, according to its terms, and it was, at the time of such payment by him countersigned and delivered to the insured. The question before us respects the next premium payable in advance on that day, in regard to which, it was, as claimed by the plaintiff, paid by the insured to Webb and received by him for the purpose of reviving and continuing the policy, but confessedly after that day, and without any other authority in Webb excepting that which is contained in the policy itself. We are therefore to look to that instrument alone for the evidence of his authority to receive that premium. And the only expression in it, from which that authority is claimed to appear, is the testimonium clause at the end, which provides that the policy “ shall not be binding until countersigned by W. W. Webb, agent, and delivered, and the advance premium paid.” The question before us, therefore, depends on the true construction of that clause, or rather of the word “agent” contained in it, taken however, in connexion with any other part of the instrument which may shed any light upon its meaning. In this case there is nothing in any other part of it which aids us in ascertaining the extent of the authority conferred upon Webb as the agent of the defendants; so that in determining its extent, we are left entirely to the clause which has been mentioned. The policy whether it is to be considered as conferring or only recognizing an authority to be exercised by Webb, evinces that he has a power to act for the defendants at least for some purposes, because that is necessarily implied in the term by which he is expressly designated as agent. If, to suppose a case so singular, it had stopped there and nothing in the instrument had been connected with that term, or referred to by it, to show to what it related, it would have been wholly indefinite and uncertain, not only as to the subject, but also as to the extent of his authority. It would have indicated merely the existence of that relation between the defendants and Webb which constitutes what is termed an agency, but which would be consistent with the existence of any one kind or any particular extent of power conferred by that relation, as well as with another. It would have been satisfied by considering him as an agent for any purpose and with any power whatever; and it is difficult to see on what ground any particular effect, or at most, more than the most limited one, could properly be given to it. We can not accede to the claim of the plaintiff, that the broadest signification ought to be put upon it, because the term agent is used without any express qualification. To give it such an unlimited effect would extend its meaning beyond what it could reasonably be supposed was intended by the parties; and we are aware of no rule which requires such a construction. The rule of construing language in pleadings and contracts most strongly against the party using it, which however prevails only in cases of necessity and where all other means of construction fail, does not apply to an instrument by which an authority is delegated to an ordinary agent; it is not a contract, nor has it properly speaking any parties; and it is at least questionable whether even in pleadings, where the term in question should be used, it would be construed to imply an authority as broad as the plaintiff here claims from it. There is not here any doubt or obscurity as to the meaning of the term used, but the difficulty arises from the circumstance that it of itself expresses merely a particular relation between the defendants and Webb generally, and which requires something more to be expressed, or to be inferred from extrinsic proof, in order to show the specific character and extent of that relation and to what acts in particular it was intended to apply. There is nothing in the character of this policy or in the language of the clause containing the term in question, which, in our opinion, requires that it should be interpreted by any artificial or technical rule of construction, or otherwise than according to its natural import. But this idea need not be pursued; for in this case the word we are considering is not left' unconnected with any thing in the instrument from which the nature or scope of the agent’s authority can be ascertained. The concluding expression in it, on which the question before us arises, is that the “ contract” expressed in the policy “ shall not be binding until countersigned by W. W. Webb agent, and delivered and the advance premium paid.” From this it is clear that the policy was not intended to take effect by a delivery to the insured by the defendants immediately on its execution by the latter, or by any other delivery than one which should be made through an agent; that it was intended that the delivery of it by such agent was not to make the contract binding until it should be countersigned by him and the premium mentioned in it should be paid in advance ; that is, before the commencement of the period for which the insurance under it should be effected; and that Webb was the particular and only person or agent to whom the premium should be paid, and by whom the policy should be countersigned and delivered on behalf of the defendants. The direct and immediate object of this clause was to prescribe the mode in which the policy should take effect as a contract between the parties. That mode is particularly described, and required the interposition of an agent, and Webb was designated as that agent. The clause states exactly what is to be done by him, or, in other words, the authority which the defendants have conferred on him. The word agent,” added to his name, considered as we are now doing, with reference only to the said clause, imports no more than that he was the agent of the defendants to do and co-operate in the things which it was therein provided should be done for the purpose therein mentioned, of making the contract binding. One of those things was the payment by the insured of the premium in advance to, and consequently its reception by him. This being done, together with the countersigning and delivery of the policy, the contract became, but could not otherwise become, consummated and complete. The question now is as to the extent'of the authority which was thus conferred on Webb in regard to the premiums provided for in the contract. We think that he was not empowered to receive any .premium which was not paid according to the requirements of the policy, that is, in advance. That instrument was his sole guide in regard to what he should do under it. The contract was to be made by the defendants, and not by him excepting in the capacity of their agent; he was not authorized to alter or vary it, or depart in any respect from it, or dispense with the fulfilment of its conditions by the insured, or discharge it, or revive it after it had by its terms ceased to be obligatory on his principal, by a waiver of a compliance with its provisions or otherwise. These must be done by the parties to the contract. He was only authorized to act in pursuance of it, and then so far only as it gave him authority. He could exercise only the power delegated to him, and no power is delegated to him to depart from the terms of the policy. It surely is not necessary to cite books to show that an agent, authorized only to execute a contract in behalf of one of its parties, has no power to vary it or dispense with its execution by the other, or that one authorized by a person to receive a payment of a sum of money from another on and pursuant to a conditional contract which requires such payment to be made at a specified time, is thereby empowered to authorize or waive a breach of such condition. If it be admitted that by the clause in question, Webb was authorized to receive not only the first premium which was required to be paid on the policy, but' also those which it provided might subsequently be paid upon it, which has not been denied by the defendants, the question before us may be tested by inquiring whether, in respect to the first premium, the policy gave Webb any authority to bind the defendants by a delivery of the policy before the payment of such premium ; for as he had no greater power in regard to subsequent premiums than he had as to the first, it is quite clear that if hewas not authorized to postpone the payment of the first, he was not as to those accruing afterward. To this inquiry the policy furnishes a most explicit and decisive negative answer. It expressly says that the policy'shall not be binding “ until the advance premium is paid.” The whole authority of the agent being here expressed on the face of the instrument, there is no place for the doctrine which is applicable to cases where an agent with an ostensible general authority, is restricted by particular and special private instructions from his principal, and which has been adverted to by the plaintiff’s counsel. We are therefore of the opinion that although Webb might be, and we are strongly inclined to think that he was, authorized by virtue of his agency, as indicated in the policy, to receive in advance the payment of premiums which should by its terms be payable subsequent to its execution and delivery, he was not thereby authorized to receive such premiums after the day on which it was provided by the policy, that they should be so paid in advance; and therefore that on this point a new trial should be granted. Our opinion is confined to the question as to the character and extent of Webb’s authority as deducible from the terms of the policy itself; leaving the plaintiff at liberty to prove expressly by extrinsic evidence, an authority to receive premiums after the time when they were made payable by the terms of the contract, so as to revive it, or facts from which such an authority should be implied.

On the remaining question, which respects the effect of the agreement claimed to have been entered into between Webb and the insured, as to the mode in which the premium should be paid, we think that, on the assumption of the court below as to the extent of Webb’s authority, the charge on that point is sustained by our decision in Sheldon v. Conn. Mutual Life Ins. Co., 25 Conn., 207.

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

New trial advised.