text:
    Hill and others vs. Meeker.
    If it appears, upon a bill of foreclosure, that the plaintiff acquired any estate, which is still subsisting, by virtue of his mortgage-deed, he is entitled to a foreclosure of that estate.
    In such case, the court will not ordinarily go into an enquiry, as to the quantity of estate mortgaged.
    Where the defendant, in his answer to a bill of foreclosure, admitted that the plaintiff acquired a valid title to all the mortgaged premises, except twenty, acres thereof, and alleged that the mortgagor had not at the time of executing the mortgage deed, any interest in said twenty acres, and that the whole title to the same had become vested in the defendant; it was held, that in default of payment of the mortgage debt, the plaintiff was entitled to a decree foreclosing the defendant of his right to redeem the property conveyed by the mortgage, leaving the parties at liberty to contest the title to said twenty acres, in an action at law, which was the legitimate mode of determining its validity.
    This was a bill to foreclose mortgaged premises. It alleged that, on the 4th of December, 1840, Arza Meeker was indebted to John L. Hill, since deceased, by two promissory notes of that date, one for the sum of $3,000, and the other for $2,900, both payable to Hill, on demand, with annual interest, and, to secure the payment of the notes, mortgaged to Hill a certain tract of land, situated in the town of Reading, containing 136 acres; that Arza Meeker afterward conveyed alb his interest in the mortgaged, premises to Frederick W. Meeker, and the defendant, who has since become the sole owner of the equity of redemption.
    The defendant, in his answer, alleged that, as to twenty acres, part of the land described in the mortgage deed, the said Arza, at the time of the mortgage, had no interest therein, but the same belonged to Esther Meeker, and remained hers, until the year 1850, when she conveyed the same to Frederick W. Meeker, and the defendant, and that the whole title to the same is now in the defendant; that; as to the remainder of the land, described in the mortgage deed, he admitted that he had purchased the equity of redemption, and was willing to suffer a decree of foreclosure, as to that portion.
    The cause was referred to a committee, whose report embraced the following facts:
    In 1794, Jonathan Meeker, Jr., owned all the lands described in the mortgage deed, and conveyed the twenty acres described in the defendant’s answer, to Richard Hawley, who afterward, in the year 1800, conveyed the same to Esther Meeker, his daughter, and the wife of Jonathan, who died in 1831. The two deeds were not recorded before his death, but remained in her possession. A few months afterward, she gave them to' her son, Arza Meeker, with directions to have them recorded, which he, without her knowledge, although he knew their contents, omitted to do, until the year 1850, when they were duly recorded. Upon the death of Jonathan, all the mortgaged premises, except the twenty acres, descended to Arza, his only son, and heir at law. At the time of the mortgage to Hill, he had no knowledge of the existence of the deeds of the twenty acres, and Esther Meeker had no knowledge of the mortgage, until some years after it had been given. In 1849, Arza conveyed all his interest in the lands, described in the mortgage deed, to Frederick W. Meeker, and the defendant; and in 1850, Esther executed a deed to them of the twenty acres, and all the interest, thus conveyed to Frederick, is now vested in the defendant, who is in possession of the mortgaged premises. Upon the death of Hill, the mortgagee, the notes given to him became the property of the plaintiffs, by distribution.
    The superior court, at its session holden at Bridgeport, in April, 1855, reserved the question, as to what decree should be passed, for the advice of this court.

      Butler Garter, and Averill, for the plaintiffs.
    Ferry, and W. F. Taylor, for the defendant,
   Waite, C. J.

It has been repeatedly holdenby this court, that, upon a bill for a foreclosure, if it appear that the plaintiff, by virtue of the mortgage deed, acquired any estate whatever, which is still subsisting, he is entitled to a decree of foreclosure, and the court, in such a suit, will not ordinarily go into an enquiry, as to the quantity of the estate mortgaged. Williams v. Robinson, 16 Conn. R., 522. Wooden v. Haviland, 18 Conn. R., 107.

And we see no reason for departing from that rule in the present case. It is admitted that, by the mortgage deed, a valid title passed, as to all the mortgaged premises, with the exception of the twenty-acre tract, and that so far, the plaintiffs are entitled to a decree.

We therefore see no difficulty in passing a decree, that, .unless the defendant shall pay to the plaintiffs all that shall be found due to them upon the mortgage, he shall be foreclosed of all right to redeem the property conveyed by the mortgage. This will leave parties at liberty to contest the title to the twenty-acre tract, in an action at law, the legitimate mode of determining the validity of that title.

The case might be different, had no other lands been mortgaged than the twenty-acre tract. In that case, it might be proper to enquire, whether any interest passed by the deed, that the court might see, whether, in passing a decree, they were not doing a nugatory act. But even in such case, proceedings might be stayed, until the title was established, in an action at law.

But in the present case, there is no such danger.' It is admitted that the plaintiffs are entitled to a decree, and the only question is, as to the extent of that decree, and we see no difficulty in passing it in the- form we have stated.

If no title to the twenty-acre tract was conveyed by the deed of mortgage, then the plaintiffs can sustain no action for the possession of it, and the defendant will sustain no injury by the decree. On the other hand, if a good title passed, then the defendant ought to redeem, or be foreclosed.

Should any circumstances arise, rendering necessary the interposition of a court of chancery, that interposition should be invoked, in a suit adapted to the case, and not by way of defence to a bill, simply praying for the foreclosure of mortgaged premises.

For these reasons, we forbear entering upon the enquiry, relating to the validity of the plaintiffs’ title to the twenty-acre tract, leaving the parties, to settle that question, if they think proper, in another form of action, and advise the superior court to pass a decree, in the manner we have stated.

In this opinion, the other judges concurred.

Decree for plaintiff.


source: Caselaw Access Project

author: Hinman, J. Waite, C. J.

license: Public Domain

text:
    Trowbridge vs. Chapin.
    In order to charge a common carrier with the loss of property, it must he shown that it was delivered to him, or to his agent, for transportation.
    The common hands or crew of a véssel, have no general authority, as agents of the owners, to receive goods for transportation.
    Where, in an action against the owner of a steamboat, as a common carrier, it was proved that it was the duty of the clerk of such steamboat, to receive freight for transportation, and property having been taken on board such boat when lying at the wharf, by a porter, was left in a place pointed out, by a person on board, whose appearance, and employment, indicated that he was a common laborer, and no enquiry was made by the porter, either as to the authority of such person to receive the property, or whether there was, or was not, any other person on board said steamboat, who had such authority ; it was held, that there was not sufficient evidence of a delivery, to render the owner liable for the loss of said property.
    This was an action on the case, for negligence, on the part of the defendants, in the transportation, and delivery, of certain goods belonging to the plaintiff. The cause was tried on the general issue, at New Haven, October term, 1854.
    On the trial, it was admitted that the defendant was the owner of the steamer called the Traveller, and as such, a common carrier between the cities of New York and New Haven.
    In support of the plaintiff’s claim, the following testimony was offered: The plaintiff testified, that, in the month of August, 1851, he left in the possession of Mr. Bailey, the keeper of a boarding-house in the city of Brooklyn, two trunks, containing wearing apparel, and other articles, of the value of two hundred and six dollars, and requested said Bailey to send the mto New Haven. Bailey testified, that, on the seventh of August, he attached to the cover of each trunk a card, directed to the plaintiff, at New Haven, and by a written order, requested one James H. Swain, the driver of an express wagon, to take them to the New Haven steamboat.
    James H. Swain, of Brooklyn, testified as follows: “ In the summer of 1851,1 was in the express business, and received an order, on the seventh of August, to get two trunks, and place them on the New Haven steamboat. I received the trunks; both were marked, E. Trowbridge, Green street, New Haven. I took them over to New York by the ferryboat. It was nine, or half-past nine o’clock, in the morning, when I got to the steamboat. I got out of the ferry-boat, and went down to the pier. I then ascertained, that the steamboat Traveller was lying at the pier. I commenced unloading the trunks, and putting them on board, with the help of my boy. We carried one of the trunks on board, and saw a man at work in the boat, and one of us called his attention to us. We asked him where we should put the trunks. He indicated a certain spot on the boat, and he pointed his finger to a spot, and told us to put them there, and we placed the trunks there and left the boat. We went on board of the boat, and said, as usual, Here is a couple of trunks to go to New Haven, where shall we put them ? 1 read the name, Traveller, on the paddle-boxes. It was a plain sign. I had been in the habit of going to that boat. I crossed the Williamsburg ferry four times a day. The place where the New Haven boat lay, was contiguous to where the ferry-boat stopped, only one pier intervening. There is not a possibility of a doubt, that I put the trunks upon the Traveller. I had before put trunks upon that boat. I took the same course, then, as I did this time. I saw no person on the boat but the man I have mentioned, and no one on the dock.”
    On cross-examination, he testified as follows: “ The man I saw, stood a little back of the paddle-boxes. The paddle-boxes are about midships. He stood aft of the paddle-boxes in the gangway. I brought the trunks on a wagon or cart, which stood, I presume, about opposite the gangway. We got as near as we could, to the place where we were going to put the trunks, before taking the trunks out. I am in the habit of going to the steamboat. Sometimes there was a change in the place where the boat lay; sometimes she lay on one side, and sometimes on the other side of the slip, but I am not positive about that. I am sure that this was the New Haven boat. The man I saw was sweeping or washing the boat out. I should think he had been washing the decks, from his appearance; he was wet. I was on board the boat afterward, and had some conversation with captain Bownes, but I did not recognize him then. Mr. Bailey was present. I did not tell the captain, that it was another boat that I put the trunks aboard of. The man was barefooted, and had a shirt and pantaloons and hat on, and that is all. The color of his dress was white. I have never seen him since. I did not have to enquire where the boat was, and I did not tell captain Bownes that I so enquired. I saw no other trunks lying where I put these, nor any other freight there. I have taken trunks to this boat before, without passengers with them. The orders were for me to take the trunks to the New Haven boat, and I did so. The passengers did not go with me. I never took anything but trunks there, that I recollect, but I might have done so and not recollect it. We generally put them down in the after gangway, by the saloon, and called the attention of the waiters to them, and we took no cheeks for them. I took no receipts for these two trunks, nor checks. I don’t know whether those trunks 1 have taken before, were for freight, or were the trunks of passengers. I saw the captain, as I said, with Bailey, at the boat. I don’t distinctly recollect what passed between myself and the captain, that day; he told me that I didn’t put them on board, and I said that I did, or to that effect. I assisted in carrying both trunks on board. I assisted the boy. The slip faces south. I think the steamboat lay on the west side of the slip. I am not positive of this, but I know the boat was the Traveller.”
    Jas. A. Smith testified as follows: “In the year 1851, I drove an express for Fairfield & Swain. We received an order to go to South Eighth street, and take two trunks over to the New Haven steamboat. We took the trunks over to New York on the ferry. We stopped on the pier and unstrapped, and took out the trunks and put them on board. A hand was standing there, and I asked him if it was the New Haven boat, (I knew it was,) and he said that it was. I asked him where we should put the trunks, and he said, “ thereand we put one trunk there, and we went out and took the other trunk and put it aboard also. The wagon was standing on the bridge. We put the last trunk on top, or along side of, the other trunk. I asked the man if they would be safe there, and he said that they would. I saw the name, Traveller, on the paddle-boxes. The steamboat lay on the right hand, as you go down the pier. She was on the right hand, as we went on the pier. I was familiar with the location of that steamboat. I had been in that business one and one-half years. I had taken trunks on board that boat before, and always took them aboard, and gave them into the care of a hand. I saw no one, but the man I mentioned, on the boat. No one appeared to have anything to do with the boat, but that man.”
    On cross-examination, he testified as follows: “ I have taken trunks and packages for New Haven, to that steamboat. "We never took a receipt for anything, before 1852. The man appeared to be about five feet six or eight inches in height. He was dressed, with his hat on. It was a straw hat, but I am not certain about that. He had also a shirt and pantaloons on, and his pantaloons were rolled up. He had no shoes or stockings on. Be had a broom in his hand. I have never seen him since.”
    In support of the claim of the defendant, that there had been no delivery of the plaintiff’s goods to him, he introduced the following witnesses:
    Washington Webb testified as follows: “I have been in' the express business, for the last twelve years. I am in Adams & Co’s agency here. We never ship any goods here without taking a receipt for them. I never saw freight delivered to the boats at New York, without there being a man to receive it, and- a receipt given for it. That was the custom in New York, as far as I know anything about it, before the railroad commenced. Here, when we ship goods in the steamboat, we always take a receipt at the boat. The car-man in New York would not deliver goods at a steamboat, without taking a receipt. If a box comes for New Haven, and is heavy, we should send it by an agent to the steamboat, and a receipt for him to take of the boat.”
    On cross-examination, he testified: “ I was never engaged in shipping goods at New York, by the New Haven steamboats. Four or five years ago, I was in New York a good deal, on express business. We took no receipts then, because we had a man of our own to take charge of the goods. Now, when we send a messenger with the goods, he takes a way-bill. I know nothing of receipts being given for trunks, brought to the New Haven boat in New York, before 1852.”

      John Saxton, of New York, testified as follows: “ In 1851, I attended steamboats. I was, and am, a steamboat agent. I had charge of the Traveller’s down freight, to be delivered in New York. The arrangements, and orders, of the directors of the boat were, to put the goods in the charge of the clerk of the boat, and the goods were not to be laid down, until the clerk could get an account of them. This has been the arrangement for the last ten or twelve years, more or less; and more particularly the arrangement for the last five years. In the year 1851, it was as I have described. If the boat was out of time, we never received any goods for the boat, but if the boat was there, the clerk of the boat was the person to receive the freight, or some one by his direction. The intention was, for the clerk to have an account of the freight, before the carman left the goods. • No one of the hands was ever authorized to receive the freight, unless the clerk authorized him to do so.”
    John C. Collier testified: “Iwas clerk of the Traveller in August, 1851, and during the entire year. There are two clerks, and as early as half-past seven, in August, immediately after breakfast, the clerks went on to the dock. It was their business to remain, invariably, until the boat left, and take an account of the freight left; and if one clerk was called away, the other took his place, and their business, while there, was to take an account of the freight, make a memorandum of it, and sign the receipts for it, and this was the custom, without any exception. No person on board the boat, but the clerk, was authorized to receive the freight. If the clerk sent any body to take a load of freight, the receipt was sent to the clerk, and he signed it. In August, 1851, my associate was Roberts, I think. I know of no other usage of the boat but that I have spoken of.’-’
    Richard A. Roberts testified: “ I was, in 1851, second clerk to receive freight. John Collier was the other clerk. In August, 1851, I stood on the dock, in the morning, until the boat left, (time for breakfast was six or seven o’clock,) and when I was gone, Collier stood there. In all cases, when I received freight, I signed a receipt for it. No other person was authorized to receive freight, except myself and Collier. I entered the freight as I received it, on a small memorandum, and from that it was transferred to the freight book. Enquiry was made for these two trunks, when I was aboard of the boat, but I knew nothing about them. I don’t know by whom the enquiry was made. The boat was never left in charge of a deck hand, between nine and ten o’clock. Any goods, of any kind, were put on the dock, while they were washing, for fear they would be damaged. I was there to receive the freight, and if 1 was not there, Collier was there. The freight was put on the dock until the washing was through, and then it was put on the boat. Collier made up the freight book, after the boat left the dock.”
    -Peck testified: “ I was general agent, in August, 1851, of the boat, and I had no other business. I have navigated steamers, between here and New York, for twelve years. In August, 1851, the clerks of this boat were authorized to receive freight for the boat, and no one else was authorized. Our mode was to sign receipts for freight, as it came on to the dock, and before it went aboard of the boat. The clerk stood at the gangway on the dock, at the head of the plank, where he could be seen, and cheeks the freight. Nothing could go on board, without his seeing it. I know nothing of these trunks, except that I heard captain Bownes mention them at the time.”
    The jury returned a verdict for the plaintiff.
    The defendants moved for a new trial, on the ground that said verdict was manifestly against the weight of evidence.

      R. I. 8f C. R. Ingerso'll, in support of the motion.
    1. To charge a common carrier with the loss of goods, they must have been delivered to him, and accepted by him. This delivery, in the absence of any established usage, or special agreement to the contrary, must be into the hands of the carrier himself, or of his servant, or agent duly authorized by him, to receive and accept goods for him. Angell on Carriers, § 129, et seq. Merriam v. H. & N. H. Railroad Co., 20 Conn. R., 354. Packard v. Getman, 6 Cow., 757. Buckman v. Levi, 3 Camp., 414. Tower v. Utica & Schen. R. R., 7 Hill, 47. A delivery to a servant of the carrier, not in authority, nor in the habit of receiving goods for him, as to one of the crew of a ship, is not sufficient. Angell o.n Carriers, § 146. Leigh v. Smith, 1 C. & P., 638. Cobban v. Downe, 5 Esp., 41. Blanchard v. Isaacs, 3 Barb., 388. Olive v. Eames, 2 Stark., 181.
    2. In the case at bar, there was no evidence, before the jury, of any usage, or agreement, dispensing with the necessity of an actual delivery to the defendant, or to his servant appointed for the purpose, of all freight intended to be forwarded by his boat. On the contrary, the evidence was ample and uncontradicted, that the defendant had provided clerks, whose special duty it was to receive, and take account of, and give receipts for, all such freight; that no one but those clerks had any such authority, and that it was the uniform and established usage, and accustomed mode of dealing with the public, for the. defendant to receive freight through the channel he had thus provided.
    3. There was no evidence before the jury, to justify them in finding, that the man on the deck of the steamboat was authorized, by the defendant, to accept freight for him, or even that he was attached to the boat in any regular capacity. The nature of his employment, and his whole appearance, exclude any presumption that he was entrusted with any authority on board the boat, and especially with the responsible duties of taking charge of freight. Nor did he assume any such authority. He simply indicated a spot where the trunks could be deposited. He was not requested, nor did he manifest any intention to take charge of them. Nor from the fact, that this man was the only person seen on the deck by Swain, could the jury have reasonably presumed, that he was therefore invested with the authority of an officer. Rigorous as the responsibility is, which the law imposes upon the carrier, it does not excuse negligence in those dealing with him, or visit him with consequences which their diligence might have avoided. “ He has a right to require that, in making a delivery, due care and diligence shall be exercised by the seller.” Buckman v. Levi, 3 Camp., 414. It was the duty of Swain, himself a carrier, to have enquired into the authority of this man, to have sought out the proper officer of the boat, and to have taken a receipt.

      Dutton Sf Mmson, and J. S. Beach, contra.
    1. The finding, involved in the verdict of the jury, that the plaintiff’s trunks went on board the defendant’s boat, was correct, and any other would have been palpably against the evidence.
    2. The trunks were received on the boat, with the knowledge, or consent, of a person authorized to receive them. It is proved that the boat was at the dock, for the purpose of receiving freight, and the only person in charge of her, was the individual to whom the trunks were delivered. He must, therefore, be presumed to have had the requisite authority, unless it is clearly shown that he had not. The defendants argue that, as he was engaged in washing the deck, he must have been one of the hands, and therefore without authority. As a hand, merely, he had no general authority to receive freight, but as the boat was there for no other purpose than for the reception of freight, and as he was the only person to whom the charge of the boat was committed, he must on this occasion, whatever may have been the general capacity in which he was employed, have had the requisite authority to receive the freight, especially as the regulation of the boat required that some person should be in constant attendance for that purpose. It was not unusual for the clerks, during a temporary absence, to delegate their authority to one of the hands, even though he was not the only person left in charge. If the clerk ever delegated his authority to one of the hands, the jury would certainly have the right to presume that, on this occasion, he complied with the regulations of the boat, and delegated it to the only person left in charge.
    3. It was the duty of the defendants to have some person either on the dock, or on the boat, capable of receiving freight. The Taff Vale Railway Co. v. Giles, 22 Law and Eq., 202. Scotthorn v. South Staffordshire Railway Co., 18 Law & Eq., 553. This duty the defendants recognized by their regulations. The question was properly submitted to the jury, to say whether the man left in charge of the boat was not such a person; and upon the evidence, the jury properly answered the question in the affirmative.
   Hinman, J.

We think the verdict, in this case, so clearly against the weight of evidence, that a new trial must be granted on that ground. We are not called upon to determine any point of law in the case, because the parties claim, or admit the law to be, that, in order to charge a common carrier with the loss of goods, it must be shown that they were delivered to, and received by, • him or his agent, to be carried; and it is further claimed by the defendant, and admitted by the plaintiff, that the ordinary hands, or in other words, the crew of a vessel are not, generally, agents of the owners, for the purpose of receiving them. The business of the crew is to navigate the vessel, under the direction of the master; and the master, or some officer under him, should receive and discharge freight, as well as superintend the navigation of the vessel; and all the difficulty there is, in the case, is in the application of these familiar principles to the facts proved. It was proved, by the defendant, that the clerk of the boat was the only person whose duty it was to receive, take an account of, and give receipts for freight. This was the uniform mode in which freight was received for transportation. But the plaintiff did not prove a delivery to this officer, nor to the master, nor to any one acting in the behalf of either of them, so far as the evidence shows. The trunks were carried on board by Swain, a porter, and he says that he saw only one man there, who was engaged in sweeping, or washing out, the boat. He thought, from his appearance, he had been washing the decks. Swain merely informed him, that he had a couple of trunks for New Haven, and asked where he should put them. The man, pointing to a spot, told him to put them there, which he did, and left the vessel without any enquiry as to this man’s name, or business, or whether he belonged to the vessel, or had any authority to receive freight, or whether there was any one on board who had such authority; and he made no examination himself, to see whether there were other persons on board, or not. Now, it is very probable that the man on board belonged to the boat; still it is quite possible that he might have been a mere dock laborer, employed only to wash the decks, or to cleanse the boat. But whether he belonged there, or not, his employment and appearance, as described by the plaintiff’s witnesses, indicate that he was an ordinary hand, or common laborer, rather than any officer of the boat. Under such circumstances, it appears to us, that it was the obvious duty of Swain to have made further examination and enquiry, before he left the trunks. Had he gone to the office, very probably he might have found the clerk; and it is quite clear that many others, beside the man he saw, might have been on board at the time, without his seeing them. We presume, from the defendant’s testimony, that other persons were there, but whether so, or not, it was gross carelessness in the porter to leave the trunks as he did, and we do not see how the jury could have found that they were properly delivered, and received, by the defendant, for transportation. It was said that, as the boat was at the dock for the purpose of receiving freight, the porter had a right to infer that the man on board was authorized to receive it. How this would be, had it been shown that he was the only person there, it is not necessary to determine. But without any evidence of this sort, we see no ground for any such inference. For these reasons, we advise the superior court to grant a new trial of the cause.

In this opinion Ellsworth, and Sanford, J. J., concurred.

Waite, C. J.

I see no reason for disturbing the verdict in the present case. The defendant was the owner of the steamboat Traveller, running between New York, and New Hallen, and as such, a common carrier, and responsible for all goods delivered to him, for transportation, between those places. And this he does not deny.

His defence is, that the goods in question were never delivered to him. But does not the evidence most clearly prove' such a delivery, as makes him chargeable with the possession ?

Two witnesses were introduced, on the part of the plaintiff, whose characters were unimpeached, and who testified that they carried the goods on board the boat, and placed them, as directed by a man they found at work there. There was, indeed, testimony, on the part of the defendant, tending in some slight degree to invalidate their testimony; but, in my judgment, altogether insufficient for that purpose, and so the jury must have thought, as appears by their verdict. Indeed, it has hardly been contended, on the part of the defendant, that a delivery, as stated by the witnesses, was not sufficiently proved.

The main question in the case, is, whether such a delivery is sufficient to bind the defendant.

The testimony is, that the tranks were carried on board the defendant’s boat, on the day of her sailing for New Haven, and during the time when it was customary to receive freight, and when, according to the testimony of his own witnesses, it was usual and customary for him to keep persons there, duly authorized to receive freight and baggage.

The persons who carried the trunks, finding no person on board, or on the deck, but a single man at work, evidently in the employment of the defendant, informed him what the freight was, and where it was to be carried, and left it on board, as he directed. And had they not a right to presume, from the circumstance, that they could find no other person to receive the freight, that he was left in charge, during, at least, a temporary absence of the proper officers of the boat ?

Suppose a quantity of freight had been shipped by the boat from New Haven to a merchant in New York, and a carman had taken it and carried it to the merchant’s store, which he found open, and no one in, or about it, except a man at work in the store, would not the carman be justified in leaving the goods, deposited in the store, in the manner directed by the man at work ?

Would it be his duty to leave his team, and go in search of the merchant, and, in case he could not find him, carry the goods back to the boat ? It seems to me that this could hardly be required.

Were the merchant to say, I am not answerable for the goods,—the man found in my store was but a porter, having no power to bind me by a receipt of goods, even in my own store, the obvious answer would be, then you should not have left him in your store, in a situation to induce the belief that he had power to do an act of that kind, at least during the temporary absence of his superiors.

The rule, that where one of two persons must suffer by the fraud of another, the loss shall fall upon him who placed that person in a situation to commit the fraud, applies in the present case.

If the defendant did not intend that the only person, found on board of his boat, should receive freight, he should not have left his boat, with no other person in charge, during the proper hours for receiving freight. Having done so, the loss ought to fall upon him, rather than upon the men who delivered it. The latter have done all that ought reasonably to be required of them.

It was the duty of the defendant to keep proper men to receive all freight, delivered on board of his boat, during the regular business hours.

And if a loss has accrued, in consequence of his neglect of that duty, the fault was his, and he should bear the loss.

And this is in conformity with the principle, by this court recognized, in a very recent case. Merriam v. The Hartford & New Haven Railroad Co., 20 Conn. R., 354. It was there holden, that a delivery of goods, on the private dock of common carriers, in their exclusive use, and in the usual and accustomed manner, in which they received goods for transportation, was good, and sufficient to charge them with a loss, although neither the carriers, nor their agents, were notified of the delivery. And surely a delivery on board the defendant’s steam boat, with notice to the only person in their employment, found on board, ought to be as effectual as a delivery on their private dock, without notice to any person.

For these reasons, I am of the opinion that no sufficient reason is shown for setting aside the verdict.

Tn this opinion, Storrs, J., concurred.

New trial to be granted.


author: Storrs, J.

text:
    Hood vs. The New York and New Haven Railroad Company.
    Courts of equity have no controlling, or superintending, power over courts of law, and will neither arrest, nor interfere with, their proceedings, on the ground that their decisions were erroneous ; much less stay, or interfere with them, in anticipation of such erroneous decisions.
    Nor will they exercise that branch of their jurisdiction, which consists in the staying of legal proceedings, such as the prosecution of inequitable, and unconscientious claims, or the setting up of defences of the like character, except in cases where the applicant for such relief would otherwise be remediless, and therefore will not interfere when the court of law, in which such proceedings are pending, can furnish adequate protection, or relief.
    Where, on a motion by the defendants, for a new trial, in an action at law upon a special contract, the supreme court of errors decided that the superior court had erred in instructing the jury, that the defendants were estopped, by the facts proved by the plaintiff, from alleging that they had no power to make the contract declared on, and advised said superior court that a new trial should be granted in said action, and the plaintiff brought his bill in equity, to restrain the defendants from further prosecuting said motion for a new trial, on the ground that the defendants, by their representations, had induced tire plaintiff to enter into said contract, and alter his condition in consequence of them, and, therefore, that said defense was inequitable and unconscientious in its character; it was held, 1. That the question whether, upon the facts proved on the trial of said action at law, it was, or was not, competent for the defendants, and consequently would not he, on another trial, to set up that defence, was not involved in such bill. 2. That the defendants would not he estopped in equity, any more than at law, from setting up the defence apprehended by the plaintiff. 3. That, inasmuch as the plaintiff could have adeguate protection, at law, on such new trial, if he was entitled to it anywhere, there was no occasion for him to come into a court of equity for that purpose, and consequently such bill was insufficient.
    At the term of the superior court, for the county of New Haven, holden in October, 1853, Roswell Hood, the plaintiff, brought against the New York & New Haven Railroad Company, his bill in equity, which was substantially as follows:
    “The defendants, a corporation, transacting business in this state, and having an office in the town of Bridgeport, and a public depot at New Haven, for the reception of passengers, to be carried by them, and for the sale of tickets therefor, were, and for a period of more than six months had been, engaged in the business of carrying passengers for hire, by means of railroad cars and stages, from New Haven to the village of Collinsville, in the town of Canton, in Hartford county, namely, by means of railroad cars to the town of Farmington, and by means of stages from said town of Farmington to Collinsville; and during that entire period had publicly represented and held said company out to the community, and knowingly permitted their agents, for the transaction of their business at their said public depot, to represent and hold said company out to the community, as being lawfully engaged in the business of carrying passengers for hire, in manner aforesaid, from New Haven to Collinsville, at a regular and established rate of fare therefor, which, during all said period, said company were accustomed to receive, from day to day, as the consideration of their engagements for the carriage, in manner aforesaid, of passengers paying the same, and for the use of due and proper care in that behalf, and on such receipt, to hold themselves out to the public as competent to contract for, and fulfil the same.
    The plaintiff, having occasion to go on business from New Haven to Collinsville, and having knowledge of the representations and course of business of said company, and of their agents employed therein, and fully confiding in the truth of such representations, and in the lawfulness of the business in which the defendants were engaged, and from' which they were deriving large profits, and in their competency to contract for and fulfil the same, and being wholly ignorant of the corporate powers of the defendants, otherwise than from their representations, and course of business, for a long time publicly held out and pursued as aforesaid, with the knowledge and to the great profit of the stockholders of said company, and without any attempt on their part, or on the part of any of them, to restrain said company, or the officers or agents thereof, from further' pursuing the same, was thereby induced to-pay, and did pay, to the defendants, at their public depot in New Haven, on the day and year last aforesaid, the customary fare, then and there demanded by them for his carriage, in manner aforesaid, with due and proper care from New Haven to Collinsville, and which he would not have done, had he not known and confided in such representations, and thereby, and by the long continued usage of the defendants, and of their agents, at their public depot aforesaid, been induced to believe the same to be true.
    Although the defendants then and there received him as a passenger, to be carried and conveyed by them, in manner aforesaid, from New Haven to Collinsville, with due and proper care, and received and appropriated to the use of said company and the stockholders thereof, and yet retain, the money paid to them by the plaintiff therefor, as aforesaid, yet the defendants, unmindful of their undertaking aforesaid, and wholly disregarding the same, did not use due and proper care in, and about, safely and securely conveying, or causing to be conveyed», the plaintiff from New Haven to Collinsville, but afterward, namely, on .the day and year last aforesaid, while the plaintiff was so a passenger to be carried, and conveyed by the defendants, over, along and upon said route or journey, and before he had arrived at the terminus thereof, in said village of Collinsville, and while he was being carried, and conveyed by the defendants, over and upon said route, namely, at Farmington aforesaid, the defendants negligently, carelessly and unskilfully caused the plaintiff to be placed in a certain sleigh, or carriage upon runners, for the purpose of carrying and conveying the plaintiff, along, over and upon the remaining part of said route from New Haven to Collinsville, from said town of Farmington to said village of Collinsville, and afterward, on the day and year last aforesaid, and while the plaintiff was being carried and conveyed by the defendants along, over and upon said portion of said route or journey, and before arrivipg at the terminus thereof, at Collinsville, the defendants, not regarding their duty in that behalf, conducted themselves so carelessly, negligently and unskilfully in this behalf, that, by and through the carelessness, negligence and unskilfulness of the defendants, and their servants and agents, and for want of due care and attention to their duty in this behalf, the said sleigh, or carriage on runners, was, on the day and year aforesaid, overset and thrown upon its side, at said town of Farmington, by means whereof the plaintiff, then ■ being in said sleigh, or carriage on runners, was severely and very dangerously wounded, bruised and injured, and one of the legs of the plaintiff became, and was greatly and violently, crushed, and the bones thereof fractured and broken in divers places, and its arteriés ruptured; and the plaintiff was otherwise greatly braised, wounded and injured, and by means of the premises became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, during all which time the plaintiff suffered and underwent great pain, and was hindered and prevented from transacting and attending to his necessary and lawful affairs, and lost, and was deprived of, divers great gains, profits and advantages which he might, and otherwise would, have derived and acquired; and whereby, also, the plaintiff was forced and obliged to expend large sums of money, .namely, three hundred dollars, in and about endeavoring to bo cured of said injuries to his person, and was hindered and prevented from returning home to New Haven, and was kept and detained for a long space of time at great ■expense, namely, two hundred dollars, at an inn in Collins-ville; all which was to his damage, in at least the sum of ten thousand dollars.
    The plaintiff, for the recovery thereof and his just costs, brought his action of assumpsit against the defendants, alleging said contract, and the breach thereof, and injury to him thereby, to the superior court for New Haven county, holden on the second Tuesday of October, 1850, demanding ten thousand dollars damages and his costs.
    The defendants, having duly appeared to answer to said suit, pleaded the general issue thereto, and thereupon such proceedings were had, that said cause came, by continuance, to the term of said court, holden at New Haven, on the fourth Tuesday of January, 1853, when said parties were at issue, to the jury, on the defendants’ plea aforesaid; and said cause came to trial, and after a full hearing of the parties and their evidence, was committed to the jury, who rendered their verdict, “finding for the plaintiff the sum of six thousand dollars damages and his costs,” which verdict was accepted by the court; and it was thereupon considered, and adjudged by the court, that the plaintiff recover said amount of the defendants.
    After the rendering of said verdict and judgment thereon, the defendants filed their motion in said .court for a new trial, on the ground that the court erred in omitting to charge the jury as requested by the defendants; that the defendants had not, under their charter, which, though a private act, was in evidence before tlie jury, power to enter into any such contract as that alleged in the declaration, even though they should find, upon the evidence introduced by the plaintiff, that the defendants had, for a long time prior to the making thereof, held themselves out to the public, by their general agents at their depot, as vested with powers requisite to enter into and fulfil such contracts, and during that entire period had knowingly permitted their agents to represent and hold the defendants out, as vested with the aforesaid powers, and that the plaintiff, knowing such representations, and believing them to be true, and being ignorant of the corporate powers of the defendants, was thereby induced to enter into said contract, and pay the defendants therefor, the consideration demanded by them, which he would not have done, had he not known such representations and believed them to be true. And also that the court erred in charging the jury, as was claimed by the plaintiff, that if the jury should find the facts as claimed by him, upon the evidence introduced as aforesaid, and more particularly stated in the motion on file, that the defendants were estopped from denying the obligation of said contract, although the court did inform them that the defendants, unde? their charter, had not power to enter into such contract.
    The question of law, arising on said motion, was reserved for the consideration and advice of the supreme court of errors,- with stay of execution on the judgment recovered, and the same was argued before said court at the last term thereof, and inasmuch as it appeared by the motion allowed, that the charter of said corporation was in evidence on the trial of said cause, whereby it appeared to the court, and was so decided, that the defendants had not, under their charter, the power to enter into any such contract as was alleged by the plaintiff, the supreme court of errors were of opinion, and so advised said superior court, that the defendants were not by the rules of law, as administered in a court of law, estopped to rely on such want of power, so made apparent by the evidence introduced and received on the trial of said cause, in manner and form as stated in said motion, notwithstanding the plaintiff, at the time of said contract, had no knowledge of the provision of said charter, and had been induced, in manner aforesaid, by the defendants, to believe that they had the power they held themselves out as possessing, and thereupon the supreme court of errors advised this court to grant a new trial of said case.
    The defendants, at the time of making said contract, and of their reception of the money of the plaintiff as the consideration thereof, and during all the time that they so publicly represented and held themselves out to the community, and knowingly permitted their agents at their public depot, to represent and hold said company out to the community, as being lawfully engaged in the business of carrying passengers for hire, in manner aforesaid, from New Haven to Collinsville, well knew, that by their charter, which was a private charter, no such power was conferred, but carefully concealed the same, and all knowledge thereof, from the public and from the plaintiff, whom they well knew to be ignorant of the same, thereby deceiving the public and the plaintiff in reference thereto, by means whereof the plaintiff was induced to pay to the defendants his money, in consideration of their contract to carry him, in manner aforesaid, from New Haven to Collinsville, which he would not otherwise have done; they then and there, unfairly and inequitably, intending to avoid all responsibility for damages to the plaintiff by reason of any violation, or non-fulfilment, of said contract, that might happen by the negligence, or default, of said company, or their agents, to his injury, by availing themselves, in their defence, of their want of power, under their charter, to make such contract, so known by them and concealed as aforesaid.
    Although, by the strict rules of law, the defendants were not estopped to rely, in their defence, on the trial of said case, or their want of power apparent from the provisions of their charter, so introduced in evidence, yet it is manifestly against equity and good conscience, that they should be permitted, after inducing the plaintiff to part with his money, on the faith of said contract, and of the ability of the defendants to enter into the same, in manner aforesaid, to avail themselves of such defence, and thereby render this court an instrument of injustice and fraud.
    Inasmuch, therefore, as the defendants, in pursuance of this motion, are now intending, contrary to equity and good conscience, to move said court, sitting as a court of law, to grant them a new trial in said case, for the sole and only purpose of enabling them to set up and rely, in their defence to the action at law, on their want of power to make said contract, thereby contriving and intending unfairly and unjustly to deprive the plaintiff- of all remedy for their violation thereof, to his great injury, and will, it is greatly to be feared, succeed in so doing, unless said court, in the exercise of its equitable powers, will interfere to prevent the same, the plaintiff prayed the court, on finding the allegations aforesaid to be true, to order and decree, that the defendants, and their agents and attornies, be forever enjoined, under such pains and penalties as said court shall deem fit to prescribe, not to pursue or further prosecute, in said superior court, where the same is now pending, their motion for a new trial in said case, or to avail themselves, in any way, of their unconscientious defence aforesaid, but that they do, henceforth, wholly desist therefrom, and suffer the judgment recovered against them by the plaintiff, to remain for execution ; and in the meantime, until the final hearing and determination hereof, that said court will cause all further-proceedings on said motion to be stayed, or in some other way, grant proper relief.”
    To this bill, the defendants demurred generally, and the case was thereupon reserved for the advice of this court.

      Dutton and Munson, in support of the demurrer.
    1. The supreme court of errors have decided that the defendants had no power to make the contract declared on, and that they were not estopped, at law, from taking advantage of their inability. Hood v. New York & New Haven Railroad, Company, 22 Conn. R., 1, and 505. 16 Eng. L. & E., 180. 14 Eng. L. & E., 57. 21 Eng. L. & E., 319.
    2. Every objection, which would lie against a legal estoppel, will lie against an equitable estoppel. It is admitted, that the defendants had no legal power to make the contract referred to. But if they can be enjoined against taking advantage of an inability, they have power to bind themselves. If an infant can be enjoined against pleading infancy, he can bind himself as a servant, by pretending to be of full age. This would be reviving the principle of the absurd doctrine, that a man can not stultify himself:
    3. The allegations in the bill, would, if established, make out a case at law against those, who are chargeable with the acts'charged, and therefore the plaintiff has a sufficient remedy at law.
    4. No authority can be shown, where a court, either of law or equity, have held a defendant responsible for an act, which he was incapable of performing. A married woman, though liable to an action on the case for fraudulent representations, can always plead coverture to an action ex contractu.

    5. To allow either a legal, or equitable estoppel, to prevent a corporation from pleading incapacity, would defeat the intention of the legislature, in restricting it to a certain kind of business. By a little management, a bank could engage in trade; an insurance company in land speculation, &c., and all restrictions upon them would be inoperative.
    Baldwin, and R. 1. & C. R. Ingersoll, and J. S. Beach, against the demurrer.
    . The bill alleges it to be against good conscience, that the defendants should have a new trial, for no other purpose than, to avail themselves of an equitable defence, and thus, through the instrumentality of the court, perfect a contemplated fraud.
    The demurrer of the defendants plainly raises the question, whether this intended wrong can be restrained by a court of equity. .
    First. It must be conceded that an individual, who had so conducted, would not be permitted to avail himself of such a defence. Bushnell v. Church, 15 Conn. R., 419. Brown v. Wheeler, 17 Conn. R., 353. Roe v. Jerome, 18 Conn. R., 153. East Haddam Bank v. Shailer, 20 Conn. R., 22.
    Secondly. It is said, however, that as the defendants had no power, under their charter, to make the contract, they can not be estopped. This claim of the defendants assumes, that “the question of estoppel,” as applied to them, “is a question of power under their charter.” I. But the powers of the defendants, under their charter, to make a valid contract, which can be enforced as such, and their right to avail themselves of that want of power in their defence, are two distinct questions. The first question, whether they have the requisite power, may be answered by an inspection of their charter. The second question, whether they have so conducted, in inducing the plaintiff to believe that they had the requisite power, as that they are now estopped to deny it, depends—1st. Upon the evidence of their acts, as proved in court. 2dly. Upon the question, whether a corporation can so act as to deprive itself of an otherwise valid defence, when the acts on which the plaintiff relies, as an estoppel, are not authorized by its chartered powers. II. It is conceded that the evidence affords a conclusive estoppel, if the defendants can be affeeted by it.
    III. A corporation can not so act, as to deprive itself of an otherwise valid defence, when the acts, upon which an estoppel is based, are not authorized by its chartered powers.
    This question has been already settled by the highest judicial authorities of this state, as well as the neighboring states, In the leading case of Buckley v. The Derby Fishing Company, 2 Conn. R., 255, it was decided, nearly forty years ago, by the supreme court of errors, that the defendant, a corporation, was estopped from setting up a violation of its own private charter, to avoid the contracts entered into by its known agents, and which the corporation by long usage had sanctioned. The same doctrine is freely recognized, in the recent case of Fuller et al. v. The Naugatuck Railroad Company, 21 Conn. R., 570. Weed v. The Saratoga Railroad Company, 19 Wend., 354. Moss v. Roper Lead Mining Company, 8 Hill, 137. Alleghany City v. McClarkson, 2 Harris, 83. 1 Sw. Dig., 75. Dispatch Line of Packets v. Bellamy Manufacturing Company, 12 N. H. R., 205. Stone v. Congregational Society, 14 Verm. R., 86. Wilson v. Bridge Company, 2 Shep., 201. Parker v. The Boston & Maine Railroad Company, 3 Cush., 117.
    The injustice and iniquity of this defence can not be better characterized than in the language of the Lord Chancellor, in the recent case of Hawkes v. The Eastern Counties Railway Company, 15 L. & Eq., 358. Chestnut Hill Turnpike Company v. Rutter, 4 S. & R., 6. Bank of United States v. Dandridge, 12 Wheat., 64. Riddle v. Proprietors Canal Lock Company, 7 Mass. R., 188. Union Manufacturing Company v. Pitkin, 14 Conn. R., 174.
    Thirdly. The power of a corporation to do wrong is intrinsic to its existence, though extrinsic of its charter. 1st. That they may be guilty of trover, or trespass, or disseisin, and many other wrongs, for which they may be made liable to the injured party, is familiar law. 22 Conn. R., 538, and cases there cited. And the question, whether they have committed the wrong, is not one to be tested by the power of the company, under its charter, but by the evidence, produced in court, as in other controversies.
    Fourthly. The estoppel is not bound, by any ties of affinity, to the form of action, the plea to which it seeks to override ; but it is the moral offspring of the law, and has a right to be heard in all cases, “where one, by his words or conduct, has caused another to believe in the existence of a given state of things, to conclude him from averring a different state of things as existing at the time.”
    “It is a rule of law, founded upon the soundest principles of morality,” and is equally effectual whether applied to an action on a guaranty, as in Bushnell v. Church, to an action of trespass upon real estate, as in Brown v. Wheeler, to an action on a bill of exchange, as in Roe v. Jerome, to an action of general assumpsit, as in East Haddam Bank v. Shailer, or to an action of trespass de bonis asportatis, as in Dyer v. Cady, 20 Conn. R., 565.
    Fifthly. The allegations in the bill extricate this case from the former decision. We are now before a court of equity, and it is admitted that the defendants knew they were perpetrating a fraud upon the plaintiff, and did it with the intention, at the time, of availing themselves of that fraud in their defence. 1st. The elementary principles, which govern courts of equity, in restraining the interposition of inequitable defences, apply with peculiar force to these defendants. Eden on Injunctions, pp. 15. Jeremy Eq. Ju., 338. 2 Sto. Eq. Ju., § 875. 2d. A court of equity will not permit a defendant to avail himself of a public statute, enacted from motives of public policy, as a protection against the consequences of his own fraud. Phalen v. Clark, 19 Conn. R., 421. Much less will it allow these defendants to oust the court of its jurisdiction, by pleading their own private charter as a license for their fraud.
   Storrs, J.

This is a bill in equity, brought to’ the superior court, and the question of its sufficiency is referred to this court, for its advice.

When the questions, arising on the motion of the defendants for a new trial, in the action at law pending between these parties, were referred to us, we were of opinion, that the superior court erred in the trial of the case, in instructing the jury, that the defendants were estopped, by the facts proved by the plaintiff, from alleging that they had no power to make the contract, declared on, in that suit, and we therefore advised that a new trial should be granted. Those facts, and the reasons for that opinion, are fully stated in the report of that case, in 22 Conn. R., 505. As that court uniformly regards the opinions and advice of this court, as being virtually authoritative, it will of course grant such new trial, unless our opinion in the present case should render it unnecessary. The object of this bill is, to restrain the defendants from further prosecuting their motion for a new trial in that case, and thus to prevent them from availing themselves of the defence, that they had no power to make the contract on which it was brought.

The council for the plaintiff, in their argument before us, in support of this bill, have insisted that, on the facts found to be proved on the trial of that action, it was not competent for the defendants, and consequently would not be on another trial, to set up that defence; and this point has been discussed by them most elaborately, both on principle and authority. And this is claimed as a legal principle, as contradistinguished from a merely equitable one. This is? plainly, the precise question upon which, on the motion for a new trial, we expressed the opinion, in favor of the competency of the defendants to set up that defence, and advised a new trial of that case. In our opinion, that question is not involved in the present bill, and therefore is not now referred to us by the superior court, for our advice; and, for the most obvious reasons of duty and propriety, it is not the course of •this court to give our advice to that court, on questions not referred to us for that purpose. We do not, therefore, feel called on to express any opinion upon it, and it would, in our judgment, be irregular, if not improper, for us to do so. A slight examination, of this bill, will show that this question does not properly arise upon it. It is not founded on the claim that, in the action at law, the defendants can not legally set up the defence which has been mentioned. Nor is there an intimation in it, that it would not be in accordance with legal principles, for the superior court to allow that defence to the defendants, as it is properly assumed in the bill, that it will, agreeably to the advice of this court, on a re-trial of that case. On the contrary, the bill admits, that at law, the defendants are not estopped to rely on that defence, on such re-trial; and the only ground on which it invokes the interposition of the superior court, as a court of equity, is, that it would be against equity, and good conscience, to permit the defendants to do so. The ground for relief, stated in the bill, manifestly is not that the principles of law, adopted by the superior court in the action at law, as applicable to that defence, are erroneous, but that, being correct, and the defendants being at law entitled to make that defence, it is so inequitable, and unconscientious, in its character, that they ought to be restrained, on equitable principies, from availing themselves of it in that suit. And it is because such defence is admissible on purely legal principles, that the plaintiff has deemed it necessary to resort to the preventive aid of a court of equity. This bill, therefore, does not raise, or allow of, the question which has thus been brought before us; and as it would not be a proper topic of argument before the superior court, it is not a legitimate one before us: for, in considering this bill, we are confined to the questions which it presents to that court. If the bill had stated, as a ground for the relief sought, that the defence, which the plaintiff' apprehends that the defendant will set up in the action at law, is not allowable on legal principles, it is clear that it would not have presented any case for the interposition of a court of equity; because, in the first place,-there would manifestly be adequate remedy at law, on an objection to such defence, in the court before which the action would be again tried; and, in the next place, as it would not be within the jurisdiction of a court of equity to arrest, or interfere with, the proceedings of a court of law, on the ground that its decisions were erroneous, much less would it be competent for it to stay, or interfere with them, in anticipation of such erroneous decisions. Courts of equity, as such, have no revising, controlling, or superintending power over the judgments, proceedings or decisions of courts of law, nor will they interfere with them, excepting on purely equitable grounds. Mar. Ins. Co. v. Hogan, 7 Cranch, 336. Simpson v. Hart, 1 Johns. C. A. R., 95. On this bill, it must therefore be assumed that the defendants have a legal right, in the action at law, to set up the -defence against which they are here sought to be enjoined. With these views, we have refrained from re-examining the question as to the competency of that defence.

It has not been, and can not justly be, claimed by the plaintiff, that on the facts proved by him in that action, the defendants would be estopped in equity, any more than at law, from setting up the defence which the plaintiff appre. bends. If there be such an estoppel, it would be founded) not upon any peculiar or distinctive principle which prevails exclusively in courts of equity, but upon one which is as fully recognized, and acted on in courts of law, namely, that a person who, by his representations to another, has induced the latter to believe in the existence of a certain state of things, and to alter his condition in consequence of it, shall be precluded from alleging, to his injury, a different state of things as then existing; the reason of which rule, whenever it is held applicable, (which is not the case under all circumstances,) is, that it would be against equity and good conscience for the person, making such representations, to retract or gainsay them, to the injury of the other, and that to allow him to do so would enable him to practice a fraud, or what would be equivalent to it, on the person who was thus misled. If, on this ground, the defendants, on the re-trial of the action at law, ought not to be allowed to set up the defence which they contemplate, they will be prevented from doing so. Since, then, the plaintiff can have adequate protection at law, against that defence on such re-trial, if he is entitled to it any where, there is no occasion for him to come into a court o'f equity for that purpose. And it is well settled that courts of equity will not exercise that branch of their jurisdiction, which consists in the staying of legal proceedings, such as restraining the prosecution of inequitable and uuconscientious claims, or the setting up of defences of the like character, excepting in eases where the applicant, for such relief, would be otherwise remediless; and therefore that they will not interfere, where the court of law, in which such proceedings are pending, can furnish adequate protection or relief. Sto. Eq. J., ch. 23. Bateman v. Willow, 1 Sch. & Lef., 201. Duncan v. Lyon, 3 Johns. Ch. R., 351. Marquess of Breadalbane v. Marquess of Chandos, 2 Mylne & Craig, 721, 733. This furnishes a decisive reason why this bill should not be entertained, for the purpose of preventing the defendants from setting up, in the action at law, the defence against which they ave sought to be enjoined, on the ground of its inequitable, and unconscionable character, which is the only ground of relief stated in the bill.

The bill, therefore, is insufficient.

In this opinion the other judges concurred.

Bill insufficient.


author: Ellsworth, J.

text:
    Whitney vs. The City of New Haven.
    Where a contract for the purchase of real estate for a public purpose, as a highway, railroad, canal, park, &c., remaining altogether unexecuted, is subsequently abandoned by the purchaser, and the vendor retains possession of the estate, agreed to be sold, his remedy is at law, and not in equity.
    The city of N-. H. agreed to buy of the plaintiff certain lands, and as much of the water of Mill river, as should he necessary to supply said city with pure water, for the consideration of $50,000, and of the covenant to construct a costly dam, and a canal, to convey, for the plaintiff's use, the surplus water of said river. The plaintiff, having never parted with the possession of his property, brought his bill, in equity, to enforce the specific performance of such agreement. Held, that he had the means of complete redress at law, and that such bill must be dismissed.
    This was a bill in chancery, brought to the superior court for New Haven county, April term, 1854, to enforce the specific performance of a contract. The material facts, alleged in the bill, were the following:
    The general assembly of this state passed an act, in 1853, entitled “ An Act to alter the Charter of the City of New Haven, to provide the means for the extinguishment of fires therein, and for supplying its inhabitants with pure water.” After said act had been accepted by said city, as a part of its charter, a board of water-commissioners was constituted, under its provisions, to exercise the powers conferred thereby, among which was “ the power to make contracts with the proprietors of any estate, real, personal, or mixed, or of any franchise, right, or privilege, required for the purposes of the act, which contracts, so made, shall be obligatory on said city, and the other party to the same,” and “to direct the amount of bonds to be issued for the purposes of the act; to prescribe the form thereof, and direct the times, and places, at which the same shall be payable;” and generally, to exercise all the powers vested in the city by said act.
    The plaintiff was the owner of certain real estate, water-privileges and franchises, mentioned in the bill, and the same were required for the purposes of the act; and in view of the powers conferred upon the commissioners, he entered into an agreement with them, they acting in behalf of the city, for the sale and conveyance to said city, of his property, and water-privileges, for the consideration of $>50,000, and of the. covenant, on their part, for the construction of their waterworks, by means of a dam and a canal, built in such manner, that the. plaintiff should, at all times, have the benefit of the surplus water of the premises, remaining, after the wants of the city were supplied. So much of said consideration, as amounted to $>27,500, was to be paid to the plaintiff, in bonds of said city, issued at a premium of ten per cent., and the remainder thereof was to be paid in cash.
    Pursuant to the requirement of the contract, the plaintiff executed, and tendered to the city, a deed of the property, agreed to be conveyed, prepared by their counsel, which deed they declined to accept, refusing to perform, on their part, the stipulations contained in the agreement, or any of them, but not pretending that the plaintiff had failed, in any respect, to comply with the agreement., on his part.
    To this bill the defendants filed a general denial, and also a further answer, alleging, so far as the matters embraced therein were sustained by the court, that the contract with the plaintiff was entered into, under the act of 1853, with a view to the introduction of water into the city of New Haven ; that, after the making of the contract, and the tender, and refusal, of the plaintiff’s deed, and after the bringing of his bill for the specific performance of the contract, the general assembly passed the act of 1854, conferring on two-fifths of the freemen of the city of New Haven, the power of repealing the act, under which the contract was made, but with a proviso to the act, that such repeal should not, in any way, affect the present suit, or, in any way, impair the obligations imposed by said contract between the plaintiff and the board of water-commissioners, or any right vested in the plaintiff thereby. At a meeting warned and held, in accordance with the provisionsof said act, more than two-fifths of the ballots cast, were in favor of such repeal.
    The court found the allegations in the bill to be true, except that no evidence was adduced to show the value, to the defendants, of the property specified in the contracts therein set forth, or of the damage sustained, by the plaintiff, by reason of the non-performance thereof by the defendants. The court also found the allegations aforesaid, in the defendants’ answer, to be true.
    The case was reserved for the advice of this court, as to what decree ought to be passed.
    Baldwin, and B. 1. & C. R. Ingersoll, and Blackman, for the plaintiff.
    1. The general principle which governs courts of equity is, that what is agreed to be done, for a valuable consideration, shall be considered as done; and consequently, after a contract has been entered into for the sale of land, the vendor is regarded, in equity, as a trustee of the land for the purchaser, and he of the money for the vendor. Atkinson on Tit., 32. 2 Sto. Eq., 789. When either party refuses to complete the sale, the other has two remedies. He may sue at law, for damages, for breach of the contract, or file his bill for specific performance. And when the contract is entered into by a competent party, and is, in its nature and circumstances, unobjectionable, it is as much of course, in equity, to decree a specific performance, as it is to give damages at law. Atkinson on Tit., 51, and 168. 2 Sto. Eq., § 751. 4 Pet., 311, 328. The exceptions are, when by reason of fraud, mistake, or surprise, uncertainty, great hardship, want of mutuality, or unreasonable delay, it would be inequitable to enforce the contract specifically. Atkinson on Tit., 84, 151, 154, 156. The contract, which the plaintiff seeks to enforce, falls within none of the exceptions to the general rule.
    2. There is no pretence that anything has been done or omitted, by the plaintiff, to justify a repudiation of the contract ; and no evidence to show it to be a hard bargain, or a bad bargain for the city, or any reason why it should not be enforced. The defendants answer, because the act of 1853, by ' the authority of which the contract was made, has since been repealed; and therefore the laud and water privileges of the plaintiff are not needed by the city. We deny, in the first place, the constitutionality or validity of the act of 1854, authorizing two-fifths of the citizens to abrogate the act of 1853, which had already been approved by a majority of the freemen of the city, and had become a part of its charter. The constitution confers all legislative power on the general assembly. What they enact can not, after it has become a law, be repealed, except by an act of legislation expressive of the judgment of the general assembly. If it is competent for the legislature to give such a power to two-fifths, it must be equally within its power to give to one-fifth, or to one man even, the power to repeal the charter of the city. But, the repealing act, (§ 4,) if it be one, not only reserves the plaintiff’s rights, under his contract, but it expressly declares that nothing, therein contained, shall in any way affect this suit. If, therefore, the plaintiff, in March, 1854, when he brought his bill, had a right to require a specific performance, and a decree to enforce it, that right remains unaffected by the repeal. How can the city invoke aid from the act to prevent the plaintiff from obtaining a decree, to which he would otherwise be entitled, when, by the very terms of the act, his rights are saved ? If, then, there is nothing in the act of the legislature, which impairs the rights of the plaintiff, nothing remains for the defendants to rely on, but that the citizens have changed their minds, in regard to the contemplated improvement, since, they made their contract with the plaintiff. It is just as important, just as feasible, just as necessary to the city now, as it was when undertaken in 1854. And so far as this court can see, the change was from mere caprice. Hawkes v. Eastern Counties, R. R., 15 Eng. L. & E., 358.
    3. It is said that it would be a great hardship, for the city, to be compelled to fulfil their contract, and that it will be impossible to do so, because the board of water-commissioners is abrogated by the repeal, and the city can have no use for the water, raised by the dam, which they have agreed to construct. To this we reply, that so far as the plaintiff is concerned, he asks only what is important to him under the contract. Whatever powers are needful, for that purpose, exist now, as much as before the repeal. The city was not authorized to give up any power essential to his rights, under the contract. 15 E. L. & E. R. 1 Railw. Ca., 326, and 477.
    Foster, and Dutton Sf Munson, for the defendants.
    The court should not decree a specific performance.
    I. There is adequate remedy at law, and to grant it would therefore be contrary to the statute. Stat. 1849, 468. 11 Eng. L. & E., 118.
    The proper remedy is at law, because, 1. The principal compensation to the plaintiff, was to be $50,000, in bonds, and money wTould be better. 2. The ground of compensation is chiefly injury to, not the removal of, a water privilege. This is clearly a matter of damages. 3. It appears by the contract, that the plaintiff was not endeavoring to obtain a new privilege. He already had the whole water-power. He was merely reserving a part, and therefore needs no relief in equity.
    II. The contract was void.
    The commissioners had no power to bind the city to build, or maintain, a dam: they had merely power, under the statute, to make compensation in some ordinary method, and not in a way which was hazardous, and likely to impose a heavy and lasting burden. Gage v. New Market R. R. Co., 14 Eng. L. & E., 57.
    III. If the contract was a valid one, the court would not use its compulsory powers, under the circumstances of the case at bar. 1. Decreeing specific performance is a question of discretion. Meeker v. Meeker, 16 Conn. R., 403. 15 Eng. L. & E., 598. 2. Specific performance will not be decreed, where it will occasion a waste of property. 2. Sw. Dig., 24. 3 Atk., 512. Stuart v. London & N. W. R. R. Co., 11 Eng. L. & E., 112. Lord Cranworth, id., 118. Webb v. Directors London & Ports. R. R. Co., 9 Eng. L. & E., 249. 3. It wdll not be decreed, where there has been a great change of circumstances, so as to make it a hardship. Perkins v. Wright, 3 Har. & M. Ken., 326. 10 U. S. Dig., 162. 1 Iowa, 510. 15 Eng. L. & E., 359. 4. It is a settled rule in England, that, if a public object like a railway is given up, and the vendor is still in possession of the land purchased, specific performance will not be decreed. Webb v. Directors London & Ports. R. R. Co., 9 Eng. L. & E., 249. Stuart v. London & N. W. R. R. Co., 11 Eng. L. & E., 112. Gooday v. Colchester & S. V. R. R. Co., 15 Eng. L. & E., 596, 598. 5. The court will not decree specific performance, where the object of the plaintiff' is secondary, such as a room in a building, or a water-privilege from a canal, as it would be oppressive to the defendant, without a corresponding benefit to the plaintiff. 6. The building a bridge, dam, &c., will not be enforced.

      IV. The provision in the repealing act does not affect any of the foregoing propositions. The city would abandon the project, without a repeal of the law of 1853.
    V. The bill should be dismissed, as there is adequate remedy at law.
   Ellsworth, J.

The city of New Haven, on the 2d day of'January, 1854, contracted to purchase, of Eli Whitney, certain lands, and so much of the water of Mill river, as should be found necessary to supply the city with pure water. Mr. Whitney has offered to perform the contract on his part, and has tendered his deed, prepared by the counsel of the city, which it is agreed, embraced the lands, waters and privileges, which he was to convey, and is itself entirely correct, and satisfactory. The defendants have refused to receive it, and have voted not to go on with the purchase, and, on their own account, have repudiated the contract, and decline to take any measures to carry it out, or pay the plaintiff the consideration, which he was to receive. Into the cause of this, it is not important for us to enquire. They have voted to abandon the water-works, and that is enough for the present purpose, preferring, as we suppose, if they are bound by the contract, to pay whatever damages a jury shall find that the plaintiff has sustained, rather than pursue a project which the citizens themselves have declared they do not desire to pursue, and the further pursuance of which, they believe, will unnecessarily aggravate their damage and loss, while it will not benefit the plaintiff beyond the money due him, which can be recovered by way of damages, at law. Mr. Whitney insists that the city shall go on, and shall specifically execute the contract as agreed, and he calls upon the court, in the exercise of a sound discretion, (for to that he, of course, appeals, in asking for its interposition,) to order the city to construct the water-works, so far as it concerns him, or, at least, to pay him the fifty thousand dollars.

The defendants resist the prayer of the bill, and urge, in their defence, two considerations,—that there is not a valid contract, as set out by Mr. Whitney, in the bill, inasmuch as the water-commissioners had no power, or authority, under the vote of the city, to oblige the city to issue city bonds, or erect a permanent dam, thirty-three feet high, and a canal to accommodate the plaintiff’s works. On the other hand, the plaintiff insists that the power and authority is ample, and that the water-commissioners have only carried out the vote of the city, in a manner alike reasonable and judicious, and that what they contracted for, or to perform, beyond the mere purchase of water, was incidental to the purchase and fair enjoyment of the water, and the mode of payment. We briefly allude to this objection at this time, because it does not become important to decide it in this suit. We place our decision on another and different ground, and, therefore, we do not mean to decide it. The other objection is this, that, allowing the contract with Mr. Whitney to be good and valid, a suit at law can be brought upon it, to recover the damages, and there is no occasion for specific execution; and further, specific execution would be exceedingly oppressive, if hot tyrannical, toward the defendants. This objection, in our view, is entitled to much consideration, and is decisive of the plaintiff’s bill.

Our statute, as well as common law, forbids a party, that can obtain complete redress at law, to seek redress by specific execution. True it is, that, as a general rule, where the purchaser of real estate can come into a court of equity, to obtain a deed of it, the vendor can come there to get his money, which was agreed to be paid, but the rule is not universally true, and it should not be .applied, we think, where it will do unnecessary mischief to one of the parties. This is a case of that character. The plaintiff not only asks to recover his money, but he seeks to compel the city to construct, at a great expense, their water-works, with a dam thirty-three feet high, for an immense pond, or reservoir of water, with a canal,for surplus water,for the plaintiff’s works; or, if the plaintiff will be satisfied, as he may be, to take a decree only for the fifty thousand dollars, and not pursue the rest of his prayer, then, we say, that the remedy is unequal and oppressive, and will not leave the parties where they should be left, and where they will be left, after a recovery of damages, at law. Is it not more equal and. just, that the plaintiff should recover his damages, whatever they may be, and retain his property, as it is, than to force the city to pay fifty thousand dollars, and go on with the water-works, whether they will use them or not; or, if the works are not to be constructed, to pay Mr. Whitney the fifty thousand dollars, and leave him, as they necessarily must do, in that case, in the undiminished enjoyment of the whole of this same property? ' The truth is, the city get nothing at all for the fifty thousand dollars, nor is the plaintiff to part with anything for it; under such circumstances, a court of equity, by granting the prayer of the bill, would, in our judgment, exercise anything but a wise and sound discretion. It is not enough, in this court, for the plaintiff to say that he has fairly made, what proves to be, a favorable bargain, and that he now wants only the benefit of it, by means of specific execution. The agreement, though good at law, is not, of course, to be enforced in a court of equity.

The general principles of equity, which govern cases like the present, are .too familiar to require from us any further comments, or the citation of authorities and cases. They are to be found, and are abundantly illustrated, in the books read at the bar, and in many other treatises. We entertain no doubt, that the law is, that where contracts are made for the purchase of real estate for public purposes, such as highways, railroads, canals, parks, and the like, but which contracts, being altogether executory, are abandoned, and the vendor remains in possession, he must seek his redress at law, and not in equity. In Webb v. The London & Portsmouth Railway Company, 9 Eng. L. & E., 249, on appeal, the defendants had entered into an agreement to purchase certain lands, not exceeding eight acres, for a proposed railroad, and to pay £4,500 for them, but which was not taken, though the defendants entered to make a survey, and estimate, and cut one tree, and the plaintiff was not otherwise disturbed in his possession and enjoyment; the court held, that the plaintiff was not entitled to a specific performance; their language is, “it is the plain doctrine of the court, that it is not upon every contract that the court will interfere to decree specific performance. It does so, to give more complete justice to a party, who seeks the aid of this court, where a contract has-been entered into to purchase an estate. It may often happen that the mere legal remedy of recovering damages, for the non-performance of the contract, would afford inadequate relief, and, from the earliest time, it has been the doctrine of this court to interfere to make the party do what he has engaged to do, namely, convey the land he has agreed to sell,” * * “but even in the ease of a suit by a purchaser, if there be circumstances, rendering it unjust that the court should interfere, the court will not interfere in his favor; and I should say, much more readily will the court listen to an objection, that is made against a vendor seeking a specific performance; because of necessity the vendor can get complete redress at law,” * * “ but here it is admitted that what the contract amounts to is really this: a contract to pay five thousand five hundred pounds, to select eight acres of the plaintiff’s land and take it from him, and for such land, and consequential damage, to pay the £4,500.” The court, after stating the rule for finding the damages, resulting from a refusal by the defendants to take the land, proceed to say: “ The amount of damages, to be calculated, will then, as I conceive, be a calculation made on the agreement, as to what, taking all the circumstances into consideration, will do justice, whereas, the relief that would be afforded in this court would be positive injustice. It would be giving to this gentleman £4,500 as the purchase money for that which they had not taken, and which I believe they never pow cap take.” Much more is said by the court, which is in point to this case, for here it is too obvious to remark, that if the city do not pursue their works, they will receive absolutely nothing for what they pay, nor can they sell anything belonging to the purchase, while, in the above case, the purchasers might probably have sold to other persons, the eight acres of land. The same is decided in Stuart v. The L. N. W. R. R. Co., 11 Eng. L. & E., 112. Lord Cranworth says: “The ground, on which we proceeded in Webb, &c., was this; that, whether it was a contract or not, the circumstances of the case made it such, that it was not fit for this court to interfere by way of specific performance, because these two circumstances conspired; first, that complete relief might be obtained at law, if the parties were entitled to any relief, and, secondly, the principle of mutuality wholly failed, for it was impossible for the company to hold the land for their benefit, in consideration of the money they were to pay.” So in Gooday v. The C. & S. V. R. R. Co., 15 Eng. L. & E., 596, a case of similar character, where the company had not taken possession of the land, and had abandoned, forever, the project contemplated; the master of the rolls says, “had there existed any such contract, then it has been settled as a rule of law, by recent cases, that assuming a contract to have existed betweeñ an individual and a railway company, and if the undertaking had been abandoned, the court will, nevertheless, in the exercise of its discretion, send the case to law, instead of granting specific performance.” We think the good sense of these decisions must commend itself to the approbation of every person, the moment he hears them, and that the doctrine they contain, is as applicable, and as important in this country as in England.

In coming to this conclusion, it will of course be understood, as already stated, that we do not mean to give an opinion, one way or the other, upon the validity of Mr. Whitney’s contract. That question is left open and untouched, as there may be an action at law, for the breach of the contract.

There was another question discussed at the bar, which we notice only to say, that it is unimportant in the view in which we dispose of the case. We mean, the effect of the act of 1854, and the succeeding vote of the city of New Haven. Was this act constitutional, and does the vote of the city impair any of the rights of Mr. Whitney, and if so, what is the operation of the saving clause of the act, in preventing it ?

For these reasons, we advise that the bill be dismissed with costs.

In this opinion the other judges concurred.

Bill dismissed.


author: Hinman, J.

text:
    Smith vs. The Congregational Society of Naugatuck and another.
    The provisions of the statutes, in force in 1S52, “ Securing, to Mechanics, a lien on Land and Buildings,” do not extend to a sub-contractor, who has performed services, and furnished materials in the construction of a building, on the credit of the original contractor, without the proprietor’s assent to the sub-contract.
    This was a bill in equity, brought by Edwin Smith, against the Naugatuck Congregational Society, and Roswell J. Brown.
    The plaintiff claimed a mechanic’s lien for materials and labor, furnished toward the erection of a church edifice, and brought the present bill for a foreclosure.

      The cause was referred to a committee, whose report embraced the following facts.
    On the 29th day of April, 1854, the defendant entered into a written agreement, in which said Brown agreed to erect a church edifice, for said society, for the sum of $-. About .the 1st of May, 1854, the plaintiff contracted with Brown to build the stone-work of the edifice, including the painting and penciling of said work, for the sum of $1,050. This sub-contract was by parol, and between the plaintiff and Brown alone, without the assent of the society.
    In pursuance of his sub-contract, the plaintiff, on the 16th day of May, 1854, began to furnish materials, and execute said stone-work, and completed said contract on the 27th of July, 1854, with the exception of the painting and penciling; and on the 25th of August, 1854, the plaintiff filed his lien in the office of the town-clerk of Naugatuck, for his services and materials, furnished as aforesaid. On the 23d of August, 1854, Brown became, and has still continued to be, insolvent, and on the 1st of February, 1855, he abandoned his contract, and the society received, and thereafter continued to hold, the same, as their own property. At the time of said abandonment, to complete the building, as Brown contracted to finish it, would cost from $2,800, to $3,500.
    The society, from the time of making the contract with Brown to the time of his abandonment of the same, fulfilled all their obligations under it, and were, at all times, in their payments, in advance of its requirements; but they did not thereby admit Brown’s right to call on them for money, further than the contract specified that payments were to be made.
    The question, as to. what decree ought to be passed in the case, was reserved for the advice of this court.

      H. B. Mimson for the plaintiff.

      Baldwin, and Kellogg & Carter, and Sanford, for the defendants.
   Hinman, J.

The principal question, in this case, is the same as one of the questions which arose in the case of the Presbyterian Society of Greens’ Farms v. Staples and others, which was determined at the late term of this court, in Fairfield county, viz.: Whether a sub-contractor, who renders services, or furnishes materials, in constructing a building, on the credit of the original contractor, without the assent in writing, or otherwise, of the proprietor, can maintain a lien updn the premises, under the statute of 1852.

Having decided this question against the validity: of the lien, it must control the decision of this case.

As we hold that there can be no valid lien in favor of the plaintiff, it is unnecessary to go into the question whether, under the circumstances of this particular case, the state of the account, between the original contractor and the society, is such as to entitle the plaintiff' to a lien, had the decision been the other way. The bill must therefore be dismissed.

In this opinion the other judges concurred, except Waite, C. J., who dissented for the reasons stated, by him, in the case of the Presbyterian Society v. Staples and others, decided at the term of this court, holden in the county of Fairfield, in June, 1855.

Bill dismissed,