author: Stores, J.

text:
    Story vs. The Norwich and Worcester Railroad Company and another.
    Fraud is often a conclusion of law, which courts will infer from acts and circumstances, whether the existence of a fraudulent purpose, in the strict sense, be proved or not.
    In equity, fraud “ includes all acts, omissions and concealments, by which an undue and unconscientious advantage is taken of another.”
    Although there must be something special in a case of fraud, and in a case of combination or confederacy, to make either an independent ground of chancery jurisdiction, yet a combination to defraud, will, in general, be relieved against in equity.
    Equity will enforce an award of arbitrators, when'the award provides a specific remedy, or prescribes the execution of a specific act, other than the payment of money.
    Where an award provided, that, in the event of the non-payment of a certain sum of money, judgment should be entered against the defendants in a certain suit then pending for its recovery, and by a connivance between the defendants and a third party, who improperly assumed to act as the plaintiff’s assignee, the plaintiff was nonsuited, without his knowledge or consent, so that the specific remedy, prescribed by the award,-was defeated, it was held, that these facts brought the plaintiff’s case within the cognizance of a court of equity, who, under the prayer for general relief, ordered the direct payment of the money, as the proper remedy, under the circumstances.
    This was a bill in chancery, brought by Miner C. Story against the Norwich and Worcester Railroad Company and John T. Cahill. At the term of the superior court, holden in January, 1854, the cause was referred to a committee, whose report embraced substantially the following facts.
    In the year 1843, Miner C. Story, the plaintiff, made four contracts with the said Norwich and Worcester Railroad Company, for building the entire extension railroad of said company, from the city of Norwich to its termination at Allyn’s Point, and for constructing for said company a wharf at said Allyn’s Point. One of said contracts embraced the work to be done on, and materials to be furnished for, a certain portion of said extension road, designated in said contracts, and known as section numbers four and five. .

      Said Story, by said contracts, was to receive from said company, for the work to be done, and materials to be furnished for said section four, $9,751, and for the work to be done, and materials to be furnished for said section five, $6,969; or for the whole work and materials on said sections, $16,720. Said work and materials were to be paid for in monthly payments, as the work progressed, to the extent of four-fifths of the monthly estimates made of the same, by the engineer of said company, and the balance upon the completion of said contract.
    After making said contract for sections four and five, John T. Cahill, one of the defendants, made a contract with Story, by which Cahill agreed to perform the whole work, and furnish all the materials, on said sections four and five, which said Story was bound to perform and furnish, by his last-mentioned contract with said railroad company, and was to receive therefor from said Story, the sum which Story was to receive from the railroad company, for the same work, namely, the sum of $16,720, and payable in the same manner as the said Story was to receive the same.
    Said Story gave said Cahill an order on said railroad company, to pay directly to Cahill, from time to time, whatever might become due said Story for the work and materials on sections four and five, on his contract with the company, which order said company refused to accept or to pay.
    The firm of Fuller & Broad afterward contracted with Cahill to perform that part of the work on sections four and five, which consisted of pile-bridging, and to furnish the materials therefor, for the price of $3.75 per lineal foot, which pile-bridging was included in Cahill’s contract with Story.
    All the work that was performed, and materials that were furnished in the construction and building of sections four and five, under said contract, was performed and furnished as follows, namely: said Cahill performed and furnished all except the pile-bridging,\ and said Fuller & Broad performed the work, and furnished the materials for the pile-bridging.

      Said Story made other contracts with sundry other persons for the performance of various other portions of the ' work, and furnishing the materials for which he had contracted on said extension road, and among others with John O’Halloran, Stephen H. Cole, and with said Fuller & Broad.
    Said Story, and his said sub-contractors, performed a large amount of work and furnished a large amount of materials under their several contracts, and claimed that they had each performed and fulfilled their various contracts for the work and materials'on said extension road, so as to entitle Story to receive his pay therefor, from the railroad company, under his contracts with said company, and each of said sub-contractors to receive from Story their pay under their several contracts with him.
    Said Story, Cahill, O’Halloran, Cole, and Fuller & Broad, each claimed that, in addition to the!work done, and materials furnished by them, under their several contracts and sub-contracts,-upon said extension road, they had each done much more work, and furnished more materials than said contracts required them to perform, in consequence of changes made and required by said railroad company in the work upon said extension road, and for which they were severally entitled to receive pay from the railroad company as for extra work and materials, beyond the amount required to be done under their several contracts.
    After Story and his several sub-contractors had ceased to work on said extension road, controversies arose as to whether the contracts, between Story and the railroad company, had been fully performed, and also whether extra work had been done, and extra materials furnished, for which the company were liable; the company claiming that said contracts had not been performed, that they were not liable for any extra work or materials, either to Story or to said subcontractors, and that the company had expended large sums of money in finishing the said contracts, which sums were chargeable to Story.
    As between Story and Cahill, in relation to the work on sections four and five, the question arose whether Cahill had fully performed the contract, between them ; and like questions arose between Story and the other sub-contractors, in relation to the work done and materials furnished by them under their several sub-contracts with Story.
    Said O’Halloran, on the 10th day of November, 1843, brought his action of book debt against said Story, by process of foreign attachment, to the county court for New London county, and trusteed said railroad company as the debtors of Story.
    At the June term of said court in 1844, judgment was rendered in said action in favor of O’Halloran, for twenty-two hundred dollars damages, and seven dollars, eighty-seven cents, costs of suit. O’Halloran, on the 31st day of October, 1844, brought a scire facias against said railroad company to the county court for New London county, to collect his said judgment against said Story, which scire facias was continued in said court until the November term thereof in 1848, and was then withdrawn.
    Said O’Halloran brought his action of book debt against said railroad company, on the 23d day of August, 1844, to the superior court for New London county, for extra work done and extra materials furnished upon said extension road, which last-mentioned action was continued in said superior court until the March term thereof in 1846, and was then withdrawn.
    Said Cahill, on the 18th day of November, 1843, brought his action of book debt against said Story to the county court for New London county, by process of foreign attachment, and caused the writ in said action to be served upon the said railroad company as the debtors of said Story, and said action was appealed by said Story to the superior court for said county, and auditors were appointed therein, and a time fixed for the hearing, when it was proposed by said Cahill to said Story, that Story should permit judgment to be taken at once against him in said action, for the purpose of facilitating the bringing of a scire facias upon such judgment against said railroad company, and of more speedily obtaining a judgment against said railroad company on. such scire facias, and of obtaining a determination of the question, whether the contracts with said railroad company had been fulfilled by Story and his sub-contractors, so as to entitle Story to receive any further pay from said railroad company therefor, and said sub-contractors to receive any further pay from Story. It was thereupon agreed between Story and Cahill,-that Cahill might take a judgment in said action against Story, for whatever amount Cahill might claim to be due to him from Story, with the understanding and stipulation that Cahill should enforce and collect the same only out of what might be due to Story from said railroad company, and to the extent only of the amount which should be found due to Story, from the railroad company, for that portion of Story’s contracts which had been performed by Cahill, under his sub-contract with’ Story.
    The following writing, expressing a part of the aforesaid arrangement, was thereupon executed by Cahill and Story, on the day of its date :
    “ Norwich, April 1,1846.
    “ It is hereby agreed between Miner C. Story, and John T. Cahill, that if in the case between them as parties, now pending in the superior court, for the county of New London, judgment shall be entered by default of this date, that the said judgment shall not be prosecuted, only as against the Norwich and Worcester Railroad Company, who are copied as garnishees in said suit.”
    In pursuance of this arrangement, judgment by default was rendered by said superior court at its March term, in 1846, in favor of Cahill against Story, in said action, for the sum of eight thousand three hundred and thirteen dollars damages, and for thirty-three dollars, ninety-four cents, costs of said action, which sum said Cahill claimed to be due to him from said Story.
    The following bill of particulars of the various items of which laid last-mentioned sum was composed, was filed by said Cahill with the clerk of said superior court:
    “ Norwich, April 1, 1846.
    “ Miner C. Story, Esq.,

      “ To John T. Cahill, Dr.
    “ 1843. To balance of contract price for making two sections of extension railroad, as per contract, .■ . . . . . . $6,053.00
    “ Lack of pile-bridging, as per agreement, . 1,000.00
    $7,053.00
    “ April, 1846. Interest on the same to date, . 1,260,00
    “ Judgment for damages, . $8,313.00”
    Said Cahill had no other or further claim on Story, except such as arose from his performing labor and furnishing materials for said extension road.
    Said Cahill, on the 19th day of March, 1845, brought his action of book debt against said railroad company, to the superior court for New London county, and at the March term of said court, in 1847, judgment was rendered in his favor in said action, for six thousand four hundred and fifteen dollars, four cents, damages, and one hundred seventy-four dollars, forty-three cents, costs of suit.
    Said judgment embraced all. the extra work done, and extra materials furnished by said Cahill, beyond the work required to be done by. his said sub-contract with said Story; and was satisfied by said company, in October, 1847.
    On the 5th day of December, 1843, said Stephen H. Cole brought his action of assumpsit against said Story, by process of foreign attachment, to the county court for New London county, and trusteed said railroad company as the debtors of Story. At the September term of said superior court, in 1849, judgment was rendered therein, in favor of said Cole, against Story, for fifteen hundred and twenty-four dollars, eighteen cents damages, and seventy dollars, forty-eight cents costs of suit.
    On the 9th day of March, 1848, said Cole brought his action of book debt against said railroad company, to the superior court for New London county, and at the March term of said court, in 1849, it was withdrawn.
    On the 6th day of July, 1848, said Story brought his action of debt against said railroad company, to the superior court for New London county, on his contracts with the company, for the amount due from the company to him, for the work done and materials furnished on said extension road under said contracts, and for extra work done and extra materials furnished by him on said extension road, beyond what he was bound to do under his contracts with the company, which last mentioned action was pending in the superior court until its September term in 1849.
    On the 6th day of December, 1844, the railroad company brought their bill in chancery to the superior court for New London county, against said Story, Cahill, O’Halloran, Cole and others, for the adjustment of all the matters and claims aforesaid, between each of the several parties, to which some of the defendants demurred, and said petition was adjudged insufficient by said court, and was dismissed.
    After said judgment was rendered in favor of Cahill against Story, the former, on the 25th day of August, 1846, in pursuance of his agreement with Story, and for the purposes proposed by him, as before stated, brought his scire facias against said railroad company to the superior court for New London county.
    ■ The trial of said scire facias was commenced at the September term of said court in 1848. Said Story and several of his sub-contractors cooperated with Cahill in the preparation and prosecution of said case. All said sub-contractors considered themselves interested in the question, the determination of which was one object for which said scire facias was brought,
    For the purpose of enabling Story to be a witness on said trial in behalf of Cahill, the latter executed and delivered to Story, during the trial, the following discharge:
    “ Received, New London, Sept. 13,1848, of M. C. Story, one dollar, in consideration of which I hereby agree not to make any claim or demand agains.t him individually on a judgment in my favor against him, on which the Norwich and Worcester Railroad Company are copied by me in foreign attachment as debtors of said Story, reserving to myself the right to proceed against said company in scire facias, to recover said judgment.
    “John T. Cahill.”
    Story was thereupon admitted as a witness in behalf of Cahill, and among other things he testified that he had no interest, directly or indirectly, in the judgment of Cahill against him.
    In the course of the trial of said scire facias, the railroad company sought to make use of the aforesaid scire facias brought by O’Halloran against them, which was then pending, and was held by some third person in trust for said company, and was under their control,, for the purpose of postponing, or in some way prejudicing said claim of Cahill.
    Sundry informalities in the proceedings, both in the scire facias of O’Halloran, and in the original suit of Cahill against Story, were claimed by the respective parties to have been discovered. A suspension of said trial was allowed by the court for the purposé of enabling the parties to negotiate terms of settlement, or of submission to arbitration.
    During said suspension, and before a submission to arbitration was agreed upon, an assignment was executed, and delivered by said Story to said Cahill, dated September 15, 1848, of all the money, which was due, or might be due to him, from said railroad company, for labor and materials furnished for said extension road, and said assignment directed said company to pay over the same ■ to Cahill, and in default of such payment, empowered Cahill to sue for the same. Said assignment was executed, in consequence of the apprehension,' occasioned by said claim of said railroad company, of an informality in the. proceedings, in said original suit of Cahill against Story, which it was feared might postpone the lien of Cahill upon the amount due from said company to Story, or otherwise prejudice Cahill’s claim upon the company, and for the sole purpose of giving to said judgment of Cahill against Story, the same priority of lien as it would have, if no such informality existed, and upon the understanding and agreement that it should have no other, or greater effect, than to give to Cahill his priority of lien in the collection of his' judgment against Story, from said company.
    Before the time for which the suspension of said trial was allowed, had expired, the terms of a submission to arbitration of their respective claims were agreed upon by the parties to said scire facias, on trial, and by Story and several of his sub-contractors; and a writing of submission was.thereupon drawn up, and was then executed by such of the parties as-were present, and was-subsequently executed by the remaining parties thereto, and-said scire facias of Cahill was continued to the next term of the. court.
    It Was agreed by said submission, that the legal priorities of said parties should be preserved, and if anything should be found to be due by said company to said Story, that said parties should be entitled to receive the same in the order of their several attachments. And that the amount found due by said arbitrators, should be the rule of damages -in said several suits, and said. auditors should award as to the amount due, by any of the parties signing said submission, to any other . of said parties, and finally adjust and settle all questions between them or any of them.

      The time, within which said award was to be made, was extended to the first day of June, 1849.
    The arbitrators, named in said submission, afterward met all the parties thereto, and heard them all, with their evidence and counsel, in relation to all the matters so submitted to them. At the conclusion of said hearing, when all the parties to said submission were present, either personally or by counsel, the arbitrators inquired of the various parties before them, whether it was understood by them that the arbitrators were to go back of the judgment in favor of Cahill against Story, and of the aforesaid assignment from Story to Cahill, or whether the amount, found due to said Story from said company, was to be allowed to Cahill to the extent of his judgment and assignment, and by virtue of them. The counsel of Cahill thereupon at first claimed that the amount found due to Story, should be allowed by the arbitrators to Cahill. Said Story thereupon claimed that it was not to be so allowed, but that the arbitrators were to go back of the judgment and assignment, and were to allow to Cahill only what they should find due to Cahill, and that the rest should be allowed to him, Story. All parties then assented to said claim of Story.
    Jn consequence of said assent and understanding of said parties, the arbitrators, in making up their award on said submission, went back of the judgment and assignment, and determined the respective rights of the several parties to the moneys which were due from the railroad company to Story, irrespective of the judgment and assignment.
    Said arbitrators made and published their award in writing, on the 16th day of May, 1849, and all the parties thereto were fully informed of the same.
    On the 26th of May, 1849, Story paid said arbitrators the full amount of their fees, and of the costs and expenses of the arbitration, as allowed and taxed by the arbitrators, namely, the sum of two hundred-and seventy-eight dollars, thirty-one cents, no part of which sum has ever been repaid to Story.
    After making and publishing said award, Cahill set up the claim that he was entitled, by virtue of said assignment, to receive for his own use, of said company, the moneys directed in said award to be paid to Story, and demanded of the company, that the same should be paid to him, and claimed that he was authorized by the assignment to execute a valid discharge for the same.
    Said railroad company knew that Story denied the right of Cahill to said moneys, or to execute a valid discharge for the same, and that he claimed that the same should be paid to him.
    Said company did not use reasonable care and diligence in ascertaining the respective rights of Cahill, and of Story, to said moneys so awarded to Story; and through want of such care and diligence, thinking that Cahill might have a right to receive the moneys, directed by said award to be paid to Story, did offer to Cahill to pay to him the moneys, awarded both to him and to Story, if he would indemnify and save harmless said company from all loss or damage, which the company might sustain by reason of such payment, and would secure such payment in the bonds of the company at their par value, then of the market value of sixty-seven cents on the dollar.
    Cahill agreed so to indemnify the company, and to receive payment in the manner proposed, and said company, relying on the indemnity so agreed to be given, delivered to Cahill seventeen bonds of said company, of different denominations, of the par value in all of nine thousand dollars, and also four hundred and thirty-eight dollars, sixty-five cents, in cash, which bonds and cash, Cahill then received, in full satisfaction of the moneys, directed in the award to be paid by the railroad company to him and to Story, and of one-half of the fees of the arbitrators, which by the award were directed to be paid to Story, and did thereupon execute and deliver to the company the following writing:
    “ In consideration of nine thousand, four hundred and thirty-eight dollars, sixty five cents, received of the Norwich and "Worcester Railroad Company, by their treasurer, G. L. Perkins, in full for the amount awarded by Honorable Thomas S. Williams and Honorable Henry M. Waite, arbitrators, by their award dated May 16th, A. X). 1849, to myself and Miner C. Story, I hereby release and discharge said railroad company from said claims and demands, and all claims and demands against said company, and the suits pending in court in my favor and in favor of said Story, said company having paid me the taxable cost in,this suit in my favor, and in favor of said Story. And I hereby agree to indemnify and save harmless said company from any claim or demand by said Story, or any person claiming for, or under said Story, for or on account of said sums so awarded to said Story, and from loss or damage arising therefrom, and especially a claim of John O’Brien against said Story, on which suit has been commenced by said O’Brien against said Story, and a copy left with the said company, claiming that they are the agents, factors, trustees and debtors of said Story; and having received from said company the oné-half of the arbitrators’ fees and expenses, the one-half being the sum of one hundred and twenty-one dollars, sixteen cents, I agree to save the said company harmless from any claim, from any person, for payment of any further sum, on account of said fees and expenses.
    “ John T. Cahill, [seal.]
    4 bonds for $1,000, viz., 13,14, 43, 44, . -. $4,000.00
    8 “ « 500, “ 313,316,318,327,328,
    329, 340, 341, 4,000.00
    5 « « 200° “ 369,370,371,372,373. 1,000.00
    9,000.00
    ' Cash, 438.65
    $9,438.65

      “ Received the above bonds and cash for the amount above expressed in receipt.
    “John T. Cahill.”
    For the purpose of further security, and as collateral to said indemnity, Cahill, at the same time or soon afterward, delivered to the company, bonds of the New Hampshire Central Railroad Company, of an amount and value sufficient to meet the liabilities of his said indemnity. All the real and personal property of said railroad company, was at this time encumbered with mortgages; and the company had no means of meeting their liabilities except by issuing their bonds; and it was usual for the company for a considerable period of time before and after this settlement with Cahill, to settle all claims against them,-except for current expenses, by issuing and delivering their bonds, payable at a distant period.
    Said Cahill and said company, after the aforesaid settlement, cooperated in endeavoring to prevent Story from obtaining a judgment in his action against the company, then pending before the superior court for New London county. And afterward, at the September term of said court in 1849, said company and Cahill procured said last-mentioned action to be nonsuited, and a nonsuit was, by order of the court, entered in said case.
    Soon afterward, said railroad company delivered up to Cahill the bonds of the New Hampshire railroad-company, which he had left with said company- as collateral security.
    After said award was made and published, said railroad company paid in their bonds, estimated at their par value, to Broad & Daniels, the amount directed by the award to be paid by the company to them.
    In the month of January, 1850, Story made a demand on the railroad company for the payment to "him of the amount directed in the award to be paid by the company to him ; and the company refused to pay the same to him, or any part thereof, claiming that they had already paid the same to Cahill, by virtue of his judgment against Story, and of said assignment.
    No part of the moneys so awarded'to Story, has ever been paid to him ; and he used reasonable diligence in pursuing his claim against said company under said award, from the time he was notified of the same.
    The court accepted the report of the committee, and reserved the case for the advice of this court.

      Hunger ford cf Cone, and Bulkeley, contended, that,
    From the facts, set forth in the bill, and found by the committee, the plaintiff was entitled to relief.
    1. If the court originally had no jurisdiction, upon the ground of an adequate remedy at law, and that appeared on the face of the bill, and there is nothing in the bill to give jurisdiction, more than is found by the committee, the court will not dismiss it on that ground. Clark v. Flint, 22 Pick., 231. Raynham v. Raynham, 23 Pick., 148. Stockton v. Williams, Walk., 120. McDonald v. Crocket, McC. Ch., 135. Ludlow v. Simond, 2 C. C. E., 56. Underhill v. Van Cortland, 2 John. C. R., 369. Livingston v. Livingston, 4 John. C. R., 287. Granden v. LeRoy, et. al., 2 Paige, Ch. R., 509. Wiswall v. Hall, 3 Paige, Ch. R., 313. Brainard v. Brainard, 15 Conn. R., 575. Lee v. The New London Bank, 11 Conn. R., 120. The City of Hartford v. Chipman, 21 Conn. R., 488. Bunnell, &c., v. Read, 21 Conn. R., 586.
    The court has jurisdiction of the cause to set aside the assignment and discharge, or enjoin against this being set up, or used, as any defence at law. Hamilton v. Cummings, and authorities cited, 1 Johns. Ch. R., 517. Johnson v. Hendley, 5 Munf., 219. Elliott v. Piersell, 1 McLean, 11. Gerritt v. Miss. & Ala. R. R. Co., 1 Free. C. C., 70. Maise v. Garner, Mart, and Yerg., 382. Chipman v. City of Hartford, 21 Conn. R., 488.
    2. The plaintiff is entitled to a specific execution of the award, and to a judgment and execution in the suit, then pending in his favor against the railroad company, and of this we have been defeated, if not defrauded.
    The court may, and will, if necessary, decree a specific execution of the award. Smith v. Smith, 4 Rand., 95 McNeil v. Magee, 5 Mas., 244.
    The remedy at law, upon the award, is not adequate, and the plaintiff is entitled to each, and every remedy, given by the award. Boyce v. Grundy, 3 Pet. S. C. U. S., 215. Hollingshead v. McKensie, 8 Go. Dee., 457. Tappan v. Evans, 1L N. H., 311. Montville v. Haughton, 7 Conn. R., 549. New London Bank v. Lee, 11 Conn. R., 312. Chipman v. The City of Hartford, 21 Conn. R., 488.
    3. It is competent for the court to decree a specific execution. 2 Sto. Eq., 173. Woodworth v. Van Buskirk, 1 Johns. C. R., 432. Floyd v. Paine, 6 John. C. R., 479. Root v. Brown, 1 Bibb., 354. Bush v. Craig, 4 Bibb., 168. Faulkner v. Harwood, 6 Rand., 125. Carrington v. Holabird, 17 Conn. R., 530.
    4. The court can order the case to be restored to the docket, and judgment nunc pro tunc entered therein for the amount directed in the award, or for that amount with the interest thereon, as of the term of the court, at which the judgment is entered up. Griffith v. Ogle, 1 Bin., 172. 6 S. and R., 126. Allston v. Sing, Riley, 199. State v. The Waldo Bank, 7 Shep., 470. Collins. v. Prentiss, and cases therein cited, 15 Conn. R., 422.
    5. If the remedy would be doubtful at law, chancery has jurisdiction; and if there was such an uncertainty in the present case, the court will sustain the cause. Whitlock v. Duffield, 2 Edw. Ch., 366. Amer. Ins. Co. v. Fisk, 1 Paige Ch. R., 90. Livingston v. Livingston, 4 John. Ch. R., 287. Boyce Ex’rs v. Grundy, 3 Pet., 210. Chipman v. The. City of Hartford, 21 Conn. R., 488. Ankrim v. Woodworth, 1 Harringt., 335. Phalen v. Clark, 19 Conn. R., 433.
    If the court has jurisdiction, in any aspect of the case, it will retain the cause, for the purpose of doing complete justice between the parties. Rees v. Smith, Wilc. C. R., 132, and other cases there cited. Miami Exploring Co. v. The United States Bank, Wri., 249. Carpenter v. Mutual Safety Ins. Co., 4 Sanf., 408. Sanborn v. Kittredge, 20 Verm. R., 632. Nor. & Wor. R. R. Co. v. Story, and cases cited by counsel, 17 Conn. R., 364.
    6. Under the prayer for general relief, the court may grant any relief appropriate to the case. Prewitt v. Graves, 5 J. J. Marsh., 114. Bolware v. Craig, 6 Litt., 407. Taylor v. Mu. Safety Ins. Co., 9 How., 390. Bentley v. Cowman, 6 Gill. & J., 152. Gibson v. McCormick, 10 Gill. & J., 66. Hopson v. McArthur, 16 Pet. Con. R., 182. Driver v. Fortner, 5 Port., 10. Thomason v. Smithson, 7 Port., 144. Marine and Fire Ins. Co. v. Early, Charl. R. M., 279. Wilkins v. Wilkins, 1 Johns. C. R., 111. Kaine v. Mancius, &c., 5 Johns. C. R., 89.

      Me Curdy, Perkins and Wait, contended,
    That on the finding of the committee the court had no jurisdiction, as the plaintiff had a perfect remedy at law.
    I. The committee find the facts respecting the judgment, ' assignment, confession of Story, submission, hearing and award.
    The award, made in view of all the facts, is, that the. railroad company owe Story a certain sum, which they are ordered to pay him. And authority is also given to Story, to take judgment for that amount, in his action then pending.
    Story might, therefore, either take judgment in that suit, or bring his action directly on the award.
    In either case, his remedy is complete. If, in either case, the company should set up in defence the judgment, assignment and order in favor of Cahill, the reply would be that the submission embraced these very matters, and the award overrides them all, and this reply would bé as available at law as in equity. White v. Wheaton, 16 Conn. R., 530. 2 U. S. Eq. Dig., p. 153, No. 365-397.

      II. There can be no waiver of the law, in such case. It is not a mere rule of practice, but a limitation of the power of the court by statute. This is peremptory, and acts directly on the court, and is not intended as a privilege to parties.
    The court has no jurisdiction over the subject, presented by the committee. That is an ordinary money claim on an award. The subject presented in the petition is a case of fraud. 12 Pet., 657. 1 Hoff. C. R., 1. 19 Maine, 124. Griwold v. Mather, 5 Conn. R., 639. 2 Hill, 159. 3 Fairf., 454. 6 Paige C. R., 95. 3 Dessau., 6. 13 Conn. R., 498. 17 Conn. R., 370. Lockwood v. Knapp, 4 Conn. R., 257. Perkins v. Perkins, 7 Conn. R., 558. Denison v. Denison, 16 Conn. R., 34. Maine v. School Dist. of Preston, 18 Conn. R., 214. Wildman v. Rider, 23 Conn. R., 172. U. S. Dig., for 1849, p. 153, No. 4, 5, 20. U. S. Dig., 1850, 154, No. 9. U. S. Dig. for 1853, 222, No. 31, and also 276, No. 992-93. 2 U. S. Eq. Dig., 146, No. 203, 204, 206, 207, 208, 202, 212, 214, 216, 220, 221, 225, 230, 114, 115.
    But there was no waiver in this case; for it was only after the report he could raise the objection.
    The petitioner avers fraud and combination. This gives jurisdiction and excludes a demurrer. But not being found, the want of jurisdiction then first appears. Phalen v. Clark, 19 Conn. R., 421. U. S. Dig. for 1847, p. 118, No. 31, or 6 Howard, 163. U. S. Dig. for 1847, 187, No. 6, 7. 5 Conn. R., 86.
    Our objection was taken on the finding, according to the uniform usage in Connecticut. Johnson v. Sanford and others, 13 Conn. R., 461. Bailey v. Skinner, 7 Conn. R., 496. Gillett v. Hall, 13 Conn. R., 426. White v. Wheaton, 16 Conn. R., 530. Witter v. Richards, 10 Conn. R., 37. N. L. Bank v. Lee, 11 Conn. R., 112. Carrington v. Holabird, 19 Conn. R., 84. West v. Howard, 20 Conn. R., 58.
    III. No decree should pass against the railroad company. They were guilty of no fraud or combination, but paid over the money in good faith. 1. The finding of negligence is not justified by any allegation in the bill. 2. It is negatived by the finding of the court. 3. The facts as found show no negligence. 4. The mistake arose from the acts of Story, as detailed in the report, and their equity is at least equal to his.
   Stores, J.

Our view of the facts of this case obviates the necessity of examining many matters of law, which relate to the agreement between the parties, and which, although much discussed, originated solely in different interpretations of the committee’s report. If the transactions of the Norwich and Worcester Railroad Company, and the sub-contractor, Cahill, amount to a combination on their part to prevent the execution of an award, founded on a submission to which they, with the plaintiff and others, were parties, it is not denied that a court of equity should interpose to protect the rights, which such a combination is designed to defeat: first, because equity will prevent the consummation of frauds, and secondly, will enforce specific remedies, of which one party, contrary to justice and good conscience, seeks to deprive another. ■ It is on these principles, that we recognize the plaintiff’s right to relief.

By an award, confessedly valid, a large sum is adjudged to be due to the plaintiff from the railroad company, who are ordered to pay it, on demand, together with the legal costs of a suit at law, then pending for its recovery. In case of default, the award authorizes the plaintiff to procure the entering up of judgment, in the suit for the debt so ascertained, and for costs. Although an action at law might have been brought upon this award, a more summary and less expensive remedy was provided by the arbitrators, and to the specific execution of this remedy the plaintiff had an incontestable right. It is this right which the railroad company and Cahill conspired to defeat. It is this right, which the plaintiff now seeks, in a court of equity, to enforce, by soliciting an equivalent remedy.

In the suit just referred to, the plaintiff, instead of being permitted to enter up judgment against the railroad company, was nonsuited, against his will and without his knowledge. This was done through the cooperation' of the company and Cahill, the latter claiming to be the assignee of the plaintiff, and assuming to discharge the claim on which the plaintiff’s suit was founded. The circumstances, attending the transaction, impress this cooperation with the character of fraud.

An assignment had been executed by the plaintiff to Cahill, of the claim against the company, and an authority to prosecute the suit, already instituted to recover this claim, had been given to the assignee. But this assignment, as appears by the award, was only made tó enable Cahill to apply the necessary portion of the avails of the suit to the payment of his own claim against the plaintiff, and to secure priority to Cahill’s judgment-lien upon the moneys which were due from the railroad company to the plaintiff, and which had been factorized, not only by Cahill, but by other creditors of the plaintiff. The balance of the debt, due from the company, was expressly agreed to be the plaintiff’s property, notwithstanding the assignment, and was consequently awarded to him, in his own right, by the arbitrators. In ascertaining this balance, the arbitrators went behind Cahill’s judgment against the plaintiff', which was taken out by agreement for a larger sum than was really due, and also behind the assignment, which was in terms absolute and unlimited. But this was not only in conformity with the real equity of the case, and understanding of the parties, but, in pursuance of an express authority to the arbitrators, to which all the parties to the submission gave oral, or tacit, assent. For the arbitrators, at the close of the hearing, were requested to apportion between Cahill and the plaintiff, according to the real indebtedness of the latter to the former, what should be found due from the company to the plaintiff. The award was published, and all parties had knowledge of it.

At this stage of the transaction which we are reviewing, Cahill receives, and the company pays, in bonds which commanded in market sixty-seven cents on the dollar, the entire debt of the company to the plaintiff, including the sum expressly awarded to the latter in his own right; Cahill discharging the company from all liability to the plaintiff, and agreeing to indemnify against him, and against any right of his, growing out of the award. These facts sufficiently establish the complicity of both parties to this proceeding, in a purpose to defeat the plaintiff’s recovery of the sum awarded to him; both knowing, that the assignment, under which they professed to act, had béen determined to be limited in its intent and operation; that Cahill was incompetent to give a valid discharge of the plaintiff’s entire demand; that the suit of the plaintiff against the company, had been, by the arbitrators, ordered to be controlled solely by him and for his peculiar benefit, and that any discontinuance of it, except with his concurrence, would be unjust to him and tend to defeat his rights.

Although the committee, in their somewhat vague report, do not expressly find a fraudulent intent to accompany the acts of Cahill and the company, in discharging the plaintiff’s claim and procuring the nonsuit, or even the manner in which the nonsuit was obtained, yet they do not exonerate these parties from an inference, which is unavoidably made from the facts disclosed. We have no hesitation in deciding that they prove a case of fraudulent combination, not merely to withhold from the plaintiff, the amount which was awarded to him, but also to deprive him of the cheap and effectual remedy, which was provided for him by the award, for the purpose of insuring the recovery of his claim. We have as little hesitation in deciding, as matter of law, that what amounts to fraud is a legal conclusion, to be derived or inferred by courts from established facts. Fraud, indeed, as known to equity jurisprudence, “ properly includes all acts, omissions and concealments, by which an undue and unconscientious advantage is taken of another.” Sto. Eq. Jur., § 187.

Many frauds are properly cognizable by courts of law, and it by no means follows, that the mere existence of fraud in a transaction, will bring it either within the independent or concurrent jurisdiction of courts of chancery. It is also true, that the fact that a wrong complained of is the result of confederacy and combination, will not, in all cases and alone, give jurisdiction of the injury to a court of equity. There must be something special in a case of confederacy, to make it a reliable ground of equity jurisdiction. Sto. Eq. PL, § 30. But where several individuals have confederated together to perpetrate a fraud, and a court of chancery, by the exercise of its ordinary functions, can protect a party from the consummation of the fraudulent design, this should be a clear case for the interposition of preventive justice.

Moreover, it is well settled, that, if an award provides a party to it with a specific remedy, appropriate to the subject-matter, equity will enforce the specific execution of the award, as readily as it would the performance of an agreement. If the award should merely direct the payment of money, chancery would not be invoked to aid the remedy ; but, if an act is required to be done in specie, the award will be made effectuaj by a decree. Hall v. Hardy, 3 P. Williams, 187. It would seem to follow clearly, that where a fraudulent combination exists, for the purpose of rendering a specific remedy, provided by an award, inoperative or impracticable, the case is, in many aspects, a proper subject of equity-jurisdiction.

It only remains to add, that a court of chancery, having once assumed jurisdiction of a matter, will provide the promptest and most effectual remedy which the case requires.

We therefore advise the superior court to order and decree, that the defendants shall pay to the plaintiff the amount awarded to him, with interest thereon, and one-half of the costs of his suit against the railroad company, as ascertained by the award, and that the defendant, Cahill, shall pay to the plaintiff that part of the residue of such costs, which, by the award, he was directed to pay, and that execution be issued accordingly.

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

Decree accordingly.


source: Caselaw Access Project

author: Stokrs, J. Waite, C. J.

license: Public Domain

text:
    Munson vs. Munson and another.
    A conveyance by the plaintiff, to his two sons, of real estate, and personal property, consisting of stock and farming tools, contained the following words : “ My said sons are not to reduce or impair the value of the stock I have assigned to them; ” and said “ land, property and chattels, shall be liable for the support of their mother;” and also contained a condition, that said sons should furnish their mother with a suitable and proper support in all things reasonable, during her natural life, and said land, and property, and chattels, should be liable therefor, and they should pay to the daughter of the grantor, within three years from date, the sum of $300, with interest after it fell due, and also pay certain specific notes, and all other notes and accounts, owing by the grantor; and in case said sons should fulfil said conditions, said deed should be good and valid, but otherwise void. Held, 1. That by such deed a present legal title to said personal property vested in the defendants, defeasible on the non-performance of said condition. 2. That such title was not necessarily an unqualified one, but that a special interest in said property was retained by the grantor, amounting to a reservation of a lien thereon, for the security of that part of the condition requiring the defendants to furnish their mother the support therein mentioned.
    Where such grantees, from time to time, sold and exchanged the greater part of said stock without the permission of the plaintiff; it was held, that although they acquired, and kept, other stock in place thereof, of equal or greater value, they thereby forfeited their right to the possession of the stock so conveyed, and that the plaintiff might maintain an action of trover therefor.
    Where, in such action of trover for the stock so sold, the defendants, for the purpose of aiding in the construction of such deed, offered evidence of the character of the stock conveyed, its liability to deterioration, and of its inevitably in time becoming useless, and even a burden, if not disposed of; it was held, that, inasmuch as the language of the deed was intelligible, and such evidence did not conduce to prove that said language was not used in its ordinary meaning, it was inadmissible.
    Where, on the trial of such action, it was proved that the defendants had paid the plaintiff’s debts, also the three hundred dollars to their sister, as required by the condition of .said deed; it was held, that the damages to which the plaintiff was entitled, were not reduced by such payment.
    Where the declaration in such action contained several counts, some in trover and some in trespass, and it was stated in the commencement of the seventh count, which was the first count in trespass, that the preceding and following counts were for the same cause of action; it was held, that as such averment was introduced for the purpose of justifying the joinder of the counts in trover and trespass, under the statute, the plaintiff was not confined, on the trial, to the proof of only one cause of action.
    This was an action on the case,-brought by Cornelius Munson against John D. Munson and Robert C. Munson.
    The declaration contained twelve counts, seven of which were in trespass, and the remainder in trover. At the term of the superior court for the county of New Haven, the cause was tried by the jury, on the general issue.
    On the trial, it was proved, that the plaintiff was originally the owner of certain cows, oxen, swine, sheep, and other stock mentioned in the declaration; and that the defendants had never had any title thereto, except such as they acquired by virtue of the following deed:
    “ To all whom, these presents shall come, Greeting:

      “ Know ye, that 1, Cornelius Munson, of Watertown, in the county of Litchfield, and state of Connecticut, for the consideration- of the love, affection and good will which I have for my sons, John D. Munson, and Cornelius R. Munson, both of said Watertown, as well as for divers other considerations, sums of money and undertakings, which will appear in the condition of this instrument, which have been received to my full satisfaction of my said sons, John D. and Cornelius R., do give, grant, bargain, convey and confirm unto the said John D. and Cornelius R. the following described land and real estate. * * *
    “ To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto them, the said grantees, their heirs and assigns forever, to them and their proper use and behoof; and also, I, the said grantor, do for myself, my heirs, executors and administrators, covenant with the said grantees, their heirs and assigns, that at, and until the ensealing of these presents, I am well seized of the premises as a good, and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written, and that the same is free of all incumbrances whatsoever. And furthermore, I, the said grantor, do, by these presents, bind myself and my heirs, forever, to warrant and defend the above granted and bargained premises to them, the said grantors, their heirs and assigns, against all claims and demands whatsoever.
    • “ And I do further hereby assign, transfer and deliver to my said sons, John D. and Cornelius R., all my stock of every description, including horse, colt, oxen, cows, young cattle, swine and sheep, it being understood that my said two sons are to allow me, and furnish me with one suitable and proper horse, to use whenever and wherever I choose, and that my said sons are not to reduce or impair the value of the stock I have hereby assigned and conveyed to them; I likewise assign to my said sons all my farming-tools and utensils, of every name and description, and likewise my wagons, to be theirs forever.

      a Always provided, that if my said sons, John D. and Cornelius R., shall furnish their mother, Fanny Munson, with a suitable and proper support in all things reasonable, during her natural life, and that said land and property and chattels shall be liable therefor; and they are, that is to say, my said sons, John D. and Cornelius R., are hereby bound by this instrument to pay my daughter, Nancy M., the wife of Truman Percy, at or- within three years from date, the sum of $300, with interest, after it falls due ; and they are likewise to assume and pay the following notes or debts which I owe, in a reasonable time, viz., one or more notes due Samuel Elton, of about two hundred dollars, being all I owe him; and John Nettleton, of said Watertown, a debt of about one hundred dollars, being all I owe him; and likewise all the other notes and accounts which I owe, which I can not now particularly enumerate, then, and in case of my said sons, John D. and Cornelius K,., performing and fulfilling all the conditions above named, in as full and ample a manner as is therein written, the foregoing deed, conveyance and assignment, shall be perfectly good and valid, but otherwise to be void.”
    It was admitted, that said deed was duly executed by the plaintiff, and delivered to the defendants, who were his sons, about the date thereof, together with said stock and other property, real and personal, therein specified, and of which the defendants immediately thereafter entered into possession, under said deed.
    It was proved and not denied, that the defendants had, from time to time, made sales and exchanges of said stock or the greater part thereof, and had, thereupon, purchased and received, or otherwise acquired and continued to keep in lieu thereof, other stock of equal or greater value than the stock so conveyed to them by the plaintiff, and sold or exchanged.
    And it was thereupon claimed by the plaintiff’s counsel, that the legal construction of said deed was such, that the title to the stock so sold and exchanged by the defendants, was retained by the plaintiff, and that the sale or exchange thereof was a tortious conversion of the same, and that the defendants were liable, in this action, to the plaintiff, for the value thereof,-notwithstanding they had continued to keep in lieu thereof, other stock of equal or greater value ; which construction was denied, by the counsel for the defendants, to be correct, who insisted, on the contrary, that by virtue of said deed, the defendants hadgood right to sell and exchange said stock, and to substitute therefor other stock of equal or greater value, as it was proved and admitted they had done.
    The plaintiff, on said trial, abandoned all the counts in trespass in said declaration, and disclaimed any right to recover thereon. The counsel for the plaintiff having introduced evidence under the first count in his declaration, tending to prove the conversion of a part of the property specified in said count, viz., the stock before mentioned, thereupon offered testimony under the other several counts in trover, successively, tending to prove divers other subsequent and distinct conversions, on divers days, of other articles of personal property specified in said first and other counts in trover; to the admission of which testimony the defendants’ counsel objected, on the ground that said several counts in trover are averred to be for the same causes of action, accruing at one and the same time; but the court overruled said objection, and admitted the evidence so offered, tending to prove such successive conversions, under said other counts in trover respectively.
    For the purpose of aiding in the construction of said deed, by the application of the language used therein to the circumstances existing, and in relation to which said deed was executed, the defendants’ counsel offered testimony to prove, that, at the time of the execution and delivery thereof, the character of said stock was such, in respect to the ages of the animals, the capabilities of the farm for their support, the purposes and uses for which such animals had been and were there ordinarily raised, kept, and disposed of, and the usages and requirements of good husbandry, as to render it obviously proper, from time to time, to sell.and dispose of the same, and to substitute therefor other stock of equal value, and of suitable ages and condition, in the manner the defendants were proved and admitted to have done, as aforesaid; to which testimony the plaintiff’s counsel objected, on the ground that the same was inadmissible for the purpose for which the same was offered as aforesaid, and was irrelevant to the issue. The testimony was received, subject to said objection, and to the ruling of the court, in the charge to the jury in relation thereto.
    It was proved on the part of the defendants, that the defendants had paid the debts of the plaintiff, and also the sum of three hundred dollars to their sister, Nancy Percy, as required by the condition of said deed, amounting in all to eight or ten hundred dollars ; an amount greatly exceeding j;he value of said stock and the other personal property conveyed by said deed; and the defendants introduced evidence to prove, and claimed that they had proved, that they had kept and fulfilled,-in all respects, each of the other conditions, or requirements of said deed.
    The defendant’s counsel claimed, that the court should instruct the jury, that, by the true and legal construction of said deed, irrespective of the testimony so offered and objected to, the defendants had a right to dispose of said stock, or any part thereof, in manner aforesaid, and were only required thereby to keep other stock in lieu thereof, of equal value, and not the same animals specifically, as was claimed by the counsel for the plaintiff.
    They also insisted that the circumstances under which said deed was executed, to prove which they had introduced evidence as aforesaid, might properly be considered, in connection with the language used in said deed, in relation to said stock, and that in view of said evidence, said language must be deemed to have been used in the sense claimed by the defendants, and acted upon by them.
    The defendants denied that they had been guilty of the tortious conversion of any other property of the plaintiff, and introduced evidence tending to disprove the same; and in regard to said stock, they further claimed and prayed the court to instruct the jury, that if the sale and exchange thereof, was a tortious conversion of the same, for which the defendants would be liable to the plaintiff, yet, if the defendants had paid, for the benefit of the plaintiff, an amount exceeding the value thereof, and had kept and performed the other conditions of said deed, the plaintiff had not been damnified thereby, and could not recover therefor, or at most, that he could only be entitled to nominal damages for such conversion, but the court omitted and refused so to instruct the jury.
    The court rejected the testimony offered by the defendants, as aforesaid, and thereupon instructed the jury, according to the claim of the counsel for the plaintiff, that if they should find that the defendants had sold, without the license or permission of the plaintiff, said stock, or any part thereof, specified in said deed, such sale was a tortious conversion, for which the plaintiff would be entitled to their verdict for the value thereof, with interest from the time of such conversion.
    The jury rendered their verdict in favor of the plaintiff, and the defendants moved for a new trial, on the ground that the court erred, and mistook the law in excluding the evidence offered by them, and in refusing to instruct the jury as claimed by their counsel, and in charging them in manner aforesaid, and against the claims of the defendants as to the construction of said deed, and the damages recoverable by the plaintiff.

      Baldwin and Webster, in support of the motion.
    1. The defendants had the right, by virtue of their deed, to sell and exchange the stock, and substitute other stock of equal or greater value. Chit, on Con., 74, 76.
    2. The testimony, offered by the defendants, to aid in the construction of the deed, was improperly excluded. Chit, on Con., 80, 81. 22 Conn. R., 530. 4 Conn. R., 273.
    3. The testimony, to prove successive conversions under the declaration, was improperly admitted.
    4. The plaintiff must have the right to the immediate possession of a chattel, in order to maintain trover. 2 Greenl., 640. ' 1 Chit. Plr, 170, 174.
    5. If the sale and exchange of the stock was a tortious conversion of the same, for which the defendants would be liable to the .plaintiff, yet if the defendants had paid, for the benefit of the plaintiff, an amount exceeding the value thereof, and had kept, and performed hitherto, the other conditions in said deed, the plaintiff had not been damnified thereby, and could not recover therefor, or at most that he would be only entitled to nominal damages for such conversion. 20 Conn, ft., 206-208.
    6. There is a misjoinder of causes of action, the first six counts being in trover, and' the last six in trespass. This is fatal on motion in arrest. 1 Chit. PL, 236. 19 Conn. It., 133. Gould. PL, ch. 10, § 11.

      R. 1. and C. R. Ingersoll, and Buel and íi. B. Munson, contra.
    I. The deed to the defendants did not convey the title of the personal property mentioned therein. It was a transfer of the possession of the stock, with the right to use the same, upon conditions; and upon the performance of said conditions only, was the title to vest, and become absolute. The legal character of the instrument is adapted to the contract, and the property upon which it was intended to operate.
    The real estate is conveyed in the usual form and language of an absolute transfer of title, subject to the conditions; and ■ in this the plaintiff was secure, because he could enter for condition broken, even after a sale by defendants. But in regard to the personal property, entirely different phraseology from that of an absolute transfer is used; and this was necessary, because the plaintiff could not enter for condition broken, or reclaim it, if he parted with the title, and he must retain the title for his security. The considerations in the deed are the performance of the conditions, and these are all continuing, and to be finally performed only in futuro.
      There are no covenants, or undertakings, on the part of the defendants, to perform a single condition, nor are they in any way obligated to perform them, unless they so elect; the only inducement to perform is the property mentioned in the deed, which was to be theirs only upon the performance of all the conditions. The language of the deed negates the passing of the title of the personal property in presentí at all. The language is not the usual and ordinary terms of conveyance of title, but is applicable to a delivery of possession merely. The provision that the stock conveyed was not to be reduced in number, or the value impaired, is consistent only with the construction that he had not parted with the title, and was providing for the security of his own property, while in the use and possession of the defendants. The final clause is conclusive, that no title was to be perfected, nor was the deed to be operative to pass the title, until all the conditions were performed. There being no obligation or covenants on the part of the defendants in this deed, if, with all its conditions, provisos and guards, it is to be held as an absolute conveyance of title, the plaintiff is remediless, and the defendants can hold the entire property without performing the conditions. The intention of the grantor being apparent, the deed is to be so construed as to effectuate that intention, and protect the plaintiff. 1 Sw. Dig., 229.
    II. It being admitted that the defendants had no rights in the property, except such as they acquired by the deed, they had no power to sell, change or dispose of the stock, without the license or permission of the plaintiff
    No power is given in the deed to sell or substitute. No necessity is shown for the sale of the stock. If the defendants have this right, then they may substitute one kind of stock for another. The sale, if the defendants had the right, destroyed the plaintiff’s title and lien upon the stock sold, and he could have none, as against third parties, upon the substituted stock.
    III. The jury having found that the defendants sold and disposed of the stock, without the license or permission of the plaintiff, the sale was a conversion. 1 Sw. Dig., 545. 23 Conn. K,., 70.
    The plaintiff’s right of action having accrued by the sale of the stock, the defendants could not discharge, or evade, that right, by substituting other stock, in lieu of that thus unlawfully appropriated.
    IV. The evidence offered of the “ usages and requirements of good husbandry, of the practice of farmers in the vicinity, and of the existing circumstances,” &c., to aid in the construction of the deed, was clearly inadmissible. Chit, on Con., 99,105.
    There is no ambiguity in the deed calling for evidence of extrinsic facts to aid in its construction. Whether the contract, as made by the parties, was in accordance with good husbandry, or the practice of farmers, is unimportant; it is such as the plaintiff saw fit to make, and the defendants accept, and by it they must be bound. The motion does not disclose that, nor was there any evidence offered, that there was any actual necessity for the sale.
    V. The rule of damages, as claimed by the defendants, and in regard to which they requested the court to charge the jury, was not the true rule.
    The plaintiff’s right of action having accrued, and being complete upon the sale, no substitution of other stock could impair or affect this right. A return, and replacing, of the original stock, so sold, before suit brought, might have made it a case for nominal damages.
    VI. Under the several counts in trover, the plaintiff was not confined to the proof of one conversion, but might prove as many as there were counts in the declaration.
    The time is not material, and is laid under a videlicit, and in each count as being “ afterward.” 1 Sw. Dig., 675. 1 Ch. PI., 257, 258. Each count is to be treated as a separate declaration. The averment that the causes of action in the several cbunts are the same, is only this, that the counts in trespass and trover, are for the same cause of action, in order to permit the joinder under the statute.
    VII. The declaration is sufficient.
   Stokrs, J.

The title of the plaintiff to the personal property in question in this case, depends on the true construction, and effect, of the deed, by which it is claimed that he conveyed it to the defendants. That deed, especially as to the stipulations and condition contained in it, is very informally and loosely .expressed; but, in our opinion, the meaning of the parties, in regard to the personal property mentioned in it, with' which only we have here any concern, is quite plain, from the language used, and the nature of the transaction with which it is conversant. In accordance with the cardinal rule of construction as to all contracts, that intention should, if possible, be carried into effect, and we think' that there is no difficulty in doing so in this case.

We do not think, with the defendants, that the terms of the deed authorized them to sell or exchange the stock conveyed by it, on their substituting in lieu thereof, on the farm, other stock of equal value. It not only says nothing respecting such a sale, exchange, or substitution, but, on the contrary, stipulates that that stock, as well as the other property conveyed, shall remain liable for the support provided in the deed for the plaintiff’s wife.

Nor do we accede to the claim of the plaintiff, that by this deed no present legal title to the personal property in question was conveyed to the defendants, and that whether a title should vest in them depended on their performance of its condition. In reference to that property, the terms used by the grantor are, “ I do hereby assign, transfer and deliver to [the defendants] all my stock,” &c. These are the most apt, and indeed the technical terms, for the conveyance of personal property, and the deed contains no language which imports that the interest in it, which was conveyed, was not to vest immediately. The form of expression in the condition was, in our opinion, intended, not to postpone the vesting of an estate in the property, but only to make the conveyance defeasible on its non-performance. This is evident from the whole scope of the instrument.

But although the deed passed a present interest in these’ chattels to the defendants, it was not, necessarily, an unqualified one; a general property in them might have been vested by it in the defendants, and aJ special interest retained by the plaintiff. Now it is very clear that, while the plaintiff intended to convey this property to the defendants, he also intended that it should not be disposed of by the latter, but that it should be holden by them as a security for the performance of that part of the condition requiring them to furnish to their mother the support therein mentioned, during her life ; for there is a provision in the deed that they “ are not to reduce, or impair the value of, the ■ stock, which he had thereby assigned and conveyed to them,” and that the said “property and chattels shall be liable” for said support. This amounts to a reservation, by the plaintiff, of a lien on the stock for the security of that object. The defendants were indeed left in the-possession of the property, and therefore the sale of it to a person not cognizant of this lien, might vest an absolute title to it in their vendee; but the question here as to its title, is between the parties to the deed, and not between the plaintiff and such vendee. We see no objection to the validity of the reservation of a lien as between the parties to the instrument, and consider the case as though the defendants had mortgaged the stock to the plaintiff for the security of the provision-for the mother’s support, with an agreement that the defendants might retain possession of it, until that provision was violated. In this view we think that the principle settled in Ashmead v. Kellogg, 23 Conn. R., 70, is applicable to the case, and that as the sale of the stock, without the permission of the plaintiff, was a misappropriation of it to a purpose different from that for which the defendants were allowed to retain and use it, it constituted a wrongful conversion of it by them, which operated as a forfeiture of their right of possession, and vested it in the' plaintiff. He was therefore entitled to a verdict. It Will be perceived, that the ground on which we put his right to recover, is, not that the condition of the deed was broken, for it did not appear that there had been any such breach, but that he had been wrongfully deprived of the interest which he had in the property, here in question, by virtue of an independent stipulation in the deed. This view does not appear to be applicable to the land, for which it has been suggested that an action of ejectment is pending in favor of the plaintiff.

"We do not think that the testimony offered by the defendants, for the purpose of aiding in its construction, was admissible. Its language is intelligible, taken in its ordinary sense, and that evidence did not conduce to prove that it was used in any sense which was peculiar or different from its natural meaning, and the only effect of it would be to show the improvidence of the arrangement which the parties had chosen to make. Considering the character of the stock conveyed, its liability to deterioration, and that it would inevitably in time become useless, and even a burden, if it was not disposed of, that arrangement would certainly appear to be, ordinarily, a very singular one; but it was manifestly designed by the plaintiff as an amicable and final arrangement of his property for the benefit of himself and his family, by which the property itself shouldbe held chargeable for the performance of the provisions made for them, and it is not improbable that, with regard to the stock and other personal property, the defendants, his sons, were willing to rely on obtaining the consent of their father to a sale or exchange of any part of it which might become necessary, and which it would be as much for his interest as theirs to give. But it is sufficient for us, that they chose to make the arrangement disclosed in the deed.

. As to the question of damages, we think that they ought not to have been reduced by the payments, made by the defendants, to the daughters and creditors, of the plaintiff. The property, disposed of by the defendants, as well as the rest of the property conveyed by the deed, was, not only by the terms of the condition, but also by a distinct stipulation, made liable, on the non-performance of the requirement contained in it, for the support of their mother during her life; and although the condition had been performed up to the time of the trial, yet as the mother was still living, and the remaining property might be inadequate security for her future support, the security furnished by the property, disposed of by the defendants, would be lost to the plaintiff, unless its value should be recovered by him, to be held for the purpose for which it was so charged. It would be contrary to the intention of the parties, and palpably unjust, to throw the hazard of the security for that support on the remaining property. The plaintiff should, by the verdict, be placed in as good a situation with respect to his security for the future performance of the stipulations of the deed, as if the property had been retained by the defendants, and this could be done only by allowing him to recover its value. If, by the terms of the deed, the property converted by the defendants was made chargeable only for the payments which have been made by them, or if no part of the conditions or stipulations remained to be hereafter performed, a different question would be presented. We think that there is an obvious difference between the present case and those relied, on by the defendants, where it was held that the damages in trover should be reduced below the value of the property converted, in consequence of its having been returned to and received by the plaintiff, or of his having received the benefit of it, by its being specifically appropriated, under legal process, by his creditor, for the payment of his debt.

The declaration, in this case, containing several counts in trover, the plaintiff was not confined, on the trial, to proof of only one cause of action. The familiar rule,-that in such cases the plaintiff may prove as many causes of action as there are counts, is applicable here, although it is stated in the commencement of the seventh count, which is the first count in trespass, that the preceding and following counts are for the same cause of action. That averment was plainly introduced, for the purpose of justifying the joinder of counts in trover and trespass under our statute, which allows counts in trespass and case for the same cause of action, to be united in the same declaration; it is not to be regarded as any part of the statement or description of the causes of action set forth in the declaration, and its effect should be limited to the purpose for which it was introduced.

The motion in arrest of judgment for a misjoinder of causes of action, is groundless, as that objection, which would be clearly fatal by the rules of the common law, is obviated by the statute which has been mentioned.

A new trial is not advised.

In this opinion, Hinman, J., concurred.

Waite, C. J.

The court in this case instructed the jury, that if they should find, that, the defendants have sold any part of the stock, specified in the deed, without the permission of the plaintiff, such sale was a tortious conversion, for which the plaintiff was entitled to their verdict, for the value thereof, with interest from the time of the conversion.

To the correctness of that instruction, founded, as it was, upon the case stated in the motion, I can not yield my assent.

The deed of the plaintiff conveyed to his two sons the real and personal property therein described in fee, subject to a condition, that, if they furnished their mother a suitable support during her life, paid a certain sum to his daughter, and paid all his debts, the conveyance was to be “ perfectly good and valid, otherwise void.”

There was no claim made on the trial, that the defendants had not performed all these conditions, supported their mother, and paid their sister, and the debts of the plaintiff. So long as they performed those conditions, the deed, by its very terms, was perfectly good and valid, and vested in them the property in fee.

The case, at least so far as the real estate is concerned, and in this respect there is no difference between that and the personal property, is precisely like that of Ghalker v. Chalker, 1 Conn, ft., 79. There the plaintiff had conveyed to his brother’s widow and her children, certain lands, upon condition that they paid him a certain annuity, but in default of such payment the deed was to be void. The court said the grantees were well seized and possessed of the lands, under the deed, and had a complete title in fee, vested in them, subject only to be devested, in consequence of the nonpayment of the annuity ; and that the grantor could not sustain an action at law, to recover possession of the lands, without showing that the grantees had failed to perform the condition of the deed.

The same rule applies to the case under consideration. No action at law can be sustained by the plaintiff, to recover for any of the property conveyed by his deed, without showing a failure, on the part of his sons, to perform the condition. And so, in my opinion, the jury should have been told.

But stress is laid upon the clause, “ it being understood that my sons are not to reduce or impair the value of the stock I have hereby assigned and conveyed to them,” as relieving the case from the operation of the general rule. In the first place, it is to be observed that this clause is not in the condition of the deed, nor is it provided in the deed, that it shall be void, if the value of the stock should be impaired. «■

But what did the parties mean by that understanding ? That the sons should keep the horses, the oxen, the cows, the sheep and the swine until they all died of old age ? Such a construction would render the conveyance almost valueless to the sons, and of no use to the plaintiff. The swine, for instance, would be nearly worthless, if they could not be fattened and killed. And some of the other stock might not be worth much more.

As it was, more than six years intervened between the conveyance and the commencement of the plaintiff’s suit. Had the stock all been kept during that period, how much would it have been worth to the plaintiff, even if he had shown a breach of the condition of the deed ?

The true construction, in my opinion, was as claimed by the defendants’ counsel. They had a right to sell and exchange the stock, and substitute therefor other, of equal or greater value. And so I think, the parties understood the agreement at the time. Any other construction, as it seems to me, would be unreasonable and absurd.

Again, the jury were told that the defendants could not sell the stock, without the permission of the plaintiff. But he had no inducement to give such permission, and men are not supposed to act without motives.

He had parted with all his interest in the property, except a lien to recover the performance of the condition. He stands much in the situation of a mortgagee, who can sustain no action at law, for any waste committed upon the property mortgaged, although he might have an injunction against the commission of such waste as would render the pledge inadequate security.

So in the present case, as long as there has been no forfeiture, the plaintiff can sustain no action at law. Were the sons to commit waste, so as to endanger the security, he might sustain a suit in chancery, to prevent the commission of such waste.

But even if there has been a forfeiture, and compensation can be made, a court of equity has power to relieve against it, when making such compensation.

Again, the plaintiff did not show that he had sustained any damage, by reason of the sale of the stock, and yet the jury were told that he was entitled to recover the value of the stock sold. This, as it seems to 'me, is not in accordance with the rule that, in an action at law, a plaintiff shall recover no more damages than he has actually sustained.

Thus a surety, who brings an action upon a bond of indemnity, can recover no greater damages than he has sustained, however great may be his liabilities.

For these reasons, I am of opinion that a new trial ought to be granted.

A new trial not to be granted.


author: Hinman, J.

text:
    Beecher vs. The Derby Bridge and Ferry Company.
    The plaintiff’s horse, in passing over the defendants’ toll-bridge, was injured, in consequence of the displacement of a plank in the floor ; and upon the trial of an action upon the statute, entitled “ An Act concerning Highways and Bridges,” the plaintiff claimed, that the defendants were guilty of negligence, and liable for such injury. The defendants offered testimony, which was uncontradicted, to prove, not only that said bridge was substantially and properly erected, but that it was the duty of the defendants’ gate-keeper, whenever any of its planks were unsafe, to put others in their places, and that he daily crossed said bridge four times, in such manner that he could see the entire floor, and had crossed it before said accident occurred, and on the same day; and the jury rendered a verdict in favor of the plaintiff. Held, that such verdict was against the weight of evidence, and that a new trial ought to be granted.
    This was an action, brought upon the statute law of this state, entitled “ An Act concerning Highways and Bridges.” Rev. Stat., tit. 24, ch. 1, § 6.
    The material part of the statute upon which this action is founded, is the sixth section,, and is as follows:

      “ If any horse, or other beast, or cart, carriage, or other property, shall receive injury or damage by means of any defective bridge, the town, person, or persons, or corporation, which ought to keep such road or bridge in repair, shall pay to the owner of such beast or property, just damages.”
    The plaintiff, in his declaration, alleged substantially, that on the 10th day of October, 1852, he was passing upon, and across, a certain toll-bridge belonging to the defendants, and situated in the town of Derby, which ought to have been kept in repair by them, with his horse and wagon; that by means of said bridge being defective and out of repair, his horse’s leg was thrust through between the planks in the floor of said bridge, and was greatly bruised and wounded; and that by reason of such injury to his horse, he wholly lost the use of the same, and had been obliged to expend large sums of money in endeavoring to cure him of said injuries, which said wrongs were contrary to the statute, &c.
    The defendants pleaded the general issue, and the cause was tried by the jury, at the term of the superior court, holden in October, 1854.
    On the trial, to prove the injury complained of, and that it was occasioned by said bridge being defective and out of repair, by the fault and negligence of the defendants, the plaintiff offered the deposition of James Tomlinson, who deposed, that on the 10th day of October, 1851, the plaintiff owned a gray mare, worth from three to five hundred dollars; that, while crossing said bridge, on a quick walk, the mare suddenly passed one of her hind legs between two planks, which were laid as a flooring to the bridge, up to, or above, the knee joint. There was a plank either turned on the edge, or otherwise removed from its place, so as to admit the foot and leg of any ordinary horse, or ox. That he had since seen the mare several times, and in the opinion of the witness, she was almost entirely ruined.
    Edwin C. Johnson testified, that he went upon the bridge immediately after the accident, and, on the first reach of the bridge, found a plank with one of its edges lying on another plank. That he tried to put it in its place, and could not succeed.
    The plaintiff testified, that his horse would have sold for five hundred dollars, or more. That in passing said bridge, his horse walked, and after he had passed the middle of the bridge, one plank lay up on another. The horse stepped upon this plank, which turned over, and went through. That he did not see the hole in the bridge, until he was over it. The plank was very loose, but he could not tell how it became displaced. That he had expended, in the care and keeping of his horse, to the time of bringing the suit, fifty dollars, and that he was worth, at that time, not more than a hundred dollars.
    The plaintiff introduced much other testimony, to prove the extent of the injury, and that it was occasioned as alleged in his declaration.
    The defendants offered as a witness, Lewis Downs, who testified, that he lived in Birmingham, and occupied a farm on the opposite side of the river. That he crossed the bridge usually four or five times a day. The bridge was kept in as good repair as any he ever knew; that the planks were taken out, when half worn, and that oak planks, two and a half inches thick, were always on the bridge, to replace those worn. It was the business of those,, who tended the gate, to take care of the bridge, and he saw them occasionally putting in planks. The defendants did everything that ought to be done, or would be required of any company. They used all the care that a prudent man would about his own affairs. For the last four years, he' had been over there three or four times a day, and presumed that he crossed the bridge that day, but did not know, and had never noticed a plank up, as this was said to be. He never knew that they allowed such lapping to remain. Anything of that kind they attended to immediately. He thought this the strongest bridge, and kept in the best repair of any bridge he ever knew. It was built with all the usual precautions. He never knew a covered bridge, with oak planks, pinned or spiked. He thought it would be better not to be pinned. It would not weaken the string-piece. The usual mode of building such bridges was not to pin, or spike down, the plank, as far as he knew, though not very conversant with such bridges.
    On cross-examination, he testified that he noticed a plank with one edge upon another, two or three times in the course of twenty years. The planks are not fastened, spiked or pegged, but laid down very tight. He crossed the bridge seven or eight times a day, in October, 1851, and always saw the planks, when they were lapped, one over the other.
    Elihu Moulthrop, testified as follows : “ I was at the bridge tending gate, in the year 1851. They required me to see that the planks were in good order on the bridge, and repair it, and if any plank was not safe to put in others that were. I crossed the bridge four times a day; averaged more than that, and always aimed to see that the bridge was in good order, on its travelled parts. My attention was confined to this duty. I could not go over it, if the plank was up, as said to be by the plaintiff, without seeing it. When I saw a plank too wide, or too narrow, I always took it up before there was any danger. The company always provided, and had on the bridge, good sound oak planks, ready; the new were as much as two and a half inches thick. I intended to keep the bridge safe for traveling. I think no plank could have been out of place in the morning, without my seeing it before noon. I went over early in the morning and back, and over and back at night. If this plank, on the 10th of October, had been up in the morning, as described by plaintiff', I should have seen it. If the plank had been up in the morning, as it was said to be, I should have seen it.”
    Cross-examination. “I lived at West End Bridge. I carried milk on foot; two cans in my hands. Returned generally in an hour. Did the same at night. Generally traveled on the center string-piece, so that I could see one side as well as the other. Plank will sometimes fly up when snow melts in spring, and require more care in keeping it then than at other times.”
    William B. Lewis, testified, “ I reside about two miles west of the bridge, in Huntington, and passed it twice a day at that time. I considered the bridge always in good passable order and condition. I don’t know of any thing more that could have been done, to ensure the safety of passengers. I always felt safe in passing. Have passed it twelve years. The flooring is divided into two tracks of eight or nine feet each, covered with oak plank two and a half inches thick, and five to eight or nine inches wide, lying by their own weight. It is a covered bridge. That mode of flooring a bridge is proper for such a bridge as that; it is floored in the same .way as other bridges of this kind. My observation is not extensive. Have observed different modes of fastening, and have made up my mind, that it is the most prudent mode of placing the flooring, on account of convenience in replacing. Should object to pinning as troublesome, and causing great delays in repairing. This mode is simple and can be easily done. Public better accommodated than if pinned down. Pinning would eventually weaken the bridge. Plank are often put down green, and would shrink.”
    The defendants introduced much other testimony, tending to show the substantial character of the bridge, and their diligence in keeping it in repair.
    The testimony being closed, the jury returned a verdict in favor of the plaintiff, for $225 damages, and the defendants moved for a new trial, on the ground that said verdict was manifestly against the weight of the evidence, and also on the ground of a misdirection by the court; but a detail of the ground of the latter motion is unnecessary, as no opinion is expressed upon it by the court.

      Baldwin, Wooster and Downs, in support of the motion.
    1. The plaintiff must show, not only that his horse was injured on the defendants’ bridge, but also, first, that he exercised reasonable care, while driving on the bridge, and that, by the exercise of reasonable care, he could not- have avoided the accident; that no want of reasonable care and foresight on his part, contributed in any degree to the injury; and secondly, that there was negligence, or a want of reasonable and ordinary care, on the part of the defendants, either in the construction, or supervision and maintenance of this bridge: and thirdly, that such negligence, or want of ordinary care, was the cause of the injury. The statute contemplates a culpable “ defect.” Bridge owners are not insurers. Butterfield v. Forrester, 11 East., 60. Williams v. Holland, 25 E. C. L. R., 261. Rathburn v. Payne, 19 Wend., 401. Hall v. Richmond, 2 Wood. & Min., 345.
    2. What constitutes negligence or want of ordinary care, is not a pure question of fact for the jury ; it is so connected with principles of law, that it becomes a conclusion of law, rather than fact. A rule of responsibility, which courts, through their verdicts, aim to have faithfully and uniformly applied. Derwort & ux, v. Loomer, 21 Conn; R., 245.
    3. There was no negligence, or want of ordinary care, on the part of the defendants, in the construction, or supervision and maintenance of this bridge. The testimony shows that the bridge was built of the most solid materials, and in all respects in the most substantial manner.
    There was an attendant to superintend and watch it, who examined it four times at least each day, and often more than that. The tracks were examined, the morning that the accident is claimed to have happened, and there was no imperfection. All the planks were in their place, and no notice came to the defendants, from any source, that the bridge was imperfect. And there was no evidence that the plank, in question, had been in the position described, for five minutes previous to the accident.
    There was negligence on the part of the plaintiff, who, passing the plank, which was raised as described by the witnesses, at noon, when the bridge was well lighted, made no effort to stop his horse.

      Blackman and H. B. Munson, against the motion.
    1. The verdict of the jury was right; the main issue, on the trial, was as to the truth of this allegation in the declaration, viz., that the plaintiff’s horse “was injured on said bridge, by means of the same being defective.” The evidence clearly proves the truth of this allegation.
    2. The plaintiff, having shown the fact of the injury, resulting from an actual defect in the bridge, was entitled to a verdict, without showing how this plank came to be too wide for its place, or how it came to be in that particular position, which occasioned the injury, or how long it had thus remained.
    3. Although negligence is not the gist of the present action, the jury were warranted in presuming negligence, from the fact and nature of the defect.
    The hurden of proof was upon the defendants, who were bound to show, if the displaced plank had ever been fitted to the vacant aperture, or if it was ever so fitted, what unusual circumstance caused the change in its position, and if it was shifted out of its position by some extraordinary circumstance, why they had not ascertained and remedied the defect, before the injury occurred.
    They have not shown that the care of the bridge was intrusted to a prudent and skilful agent, nor that the agent, to whom it was intrusted, examined it with any degree of care. If this plank was thrown out of place by the swelling of this, and other planks, occasioned by moisture, a careful examination, on the morning 'of the accident, would have detected and prevented it. If it was displaced by ordinary travel, it could not have been in a proper position, previous to its thus being displaced, which proper care would have remedied. If an unusual amount of travel had passed over the bridge on the day of the accident, it ought to have been more frequently- examined. .
    4. From the evidence before the jury, they were clearly authorized in finding the fact of negligence on the part of the defendants, or that they had not exercised all that care which a prudent man ought to exercise, under such circumstances.
   Hinman, J.

We think the verdict in this case so manifestly against the weight of evidence, that a new trial must be granted, on that ground. The injury, complained of, appears to have been caused by reason of the displacement of one of the planks of the defendants’ bridge, and, if there had been no evidence of diligence, on their part, to keep the bridge in repair, this might have justified a verdict against them, under the statute. But the plaintiff’s counsel admit, that to justify the verdict, the defect must have been one that reasonable care and diligence, on the defendants’ part, would have guarded against, so as to. prevent an injury, arising from it; and we think the defendants’ testimony, which in this particular was uncontradicted, quite ample, not only as to the general good character of the bridge, but as to the great care that was taken to keep it in suitable repair. In the language of one of the witnesses, it was a very strong and substantial bridge, with a double track, two outside walls, and a center string-piece; the planks eight and a half feet long, two and a half inches thick, from- six to twelve inches wide, and supported by five sleepers within the eight and a half feet carriage-way; and the witness always considered the bridge to be strong, safe, and in good repair. In connection with, much evidence of this description, the defendants proved by their gate-keeper, that it was his duty to see that the planks were in. good order, and if any were found unsafe, to put in others; that he crossed the bridge regularly four times a day, generally traveling on the center string-piece, so that he could see both tracks ; and in this way, he passed over the bridge, on the morning of the accident, and would have seen the plank had it then been up. Now, considering that there was no conflicting testimony on this point, and that we discover nothing which ought to discredit this witness, we can come to no other conclusion than that the jury, acting, probably, upon the mistaken notion that the statute had, in effect, made the defendants insurers of the safety of travelers over their bridge, must have disregarded this evidence, in finding their verdict. No one would claim, that it was the duty of the defendants to keep men constantly upon their bridge, in order to see that all the planks were in their proper places, at all times, and if any thing short of this is reasonable diligence, it appears to us, that a careful examination of it, four times a day, ought to be deemed sufficient. On this ground alone, we advise the superior court to grant a new trial. On the point of law, raised by the motion, we therefore say nothing.

In this opinion, the other judges, WAITE and STORRS concurred.

New trial to be granted.