pany from its surplus earnings; and for that purpose he represents to the defendant, as a fact, that holders of such policies in the past have had their premiums so reduced by such dividends that the aggregate amount of cash paid by them for premiums, instead of being $4,786.50 (10 times the amount of the annual premium), did not exceed $3,000, whereas, in fact, the largest dividends before declared by the company had not reduced the premiums on any such policy so that the aggregate amount of cash paid in premiums was less than $4,143.97. In other words, the agent represents that the dividends previously declared by the company had been at the average rate of $178.65 a year, when in fact such dividends had never exceeded the average rate of $64.25 a year. This statement is well known to the agent to be false, is fraudulently made with intent to deceive the defendant, and induce him to take out the policy. It is believed by the defendant, and, in reliance upon such representation, he takes out the policy, and, in payment of the first premium, gives the agent the notes sued upon.

The defendant might have ascertained the falsity of the statement. He was put off his guard by the agent pretending to figure the result stated from tables furnished by the company for that purpose,-a process which, as would seem from the record, the defendant was himself unable to perform. In Watson v. Atwood, 25 Conn. 313, 320, we held that it was no defense for a man, when sued for making a false and fraudulent representation respecting the title of another, by which the purchaser became deceived and defrauded, that by searching the records the purchaser might have discovered the falsity of the representation; and Waite, C. J., speaking for the court, says: "The very object in making those representations was to throw the purchaser off his guard, and induce him to act upon them without further inquiry; and the very foundation of the plaintiff's claim is that he believed those representations to be true, and was thereby induced to act as if they were so, and thus became defrauded." It is, of course, essential in such case that the person claiming damages for the fraud should in fact have believed the false statement to be true, and in fact have relied upon the statement; and, in determining those facts, the ease with which the falsity of the statement may be ascertained may become important. In this case the court below has found the principal facts. The record does not show that at the trial any claim was made that, upon the detailed facts as found by the court, the falsity of the representations made was so apparent, or the failure to exercise common prudence and caution was so clear, that, as a matter of law, the defendant could not rely upon the false representation. No such question of law is raised by the appeal. Assuming, as we must upon the finding, that the

representation was both false and fraudulent, and that the defendant believed it, and in reliance upon it, and deceived by it, took out the policy of insurance, and gave the notes sued upon in payment of the first premium, there can be no doubt of the right of the defendant to rescind the contract as he did, and to maintain an action of tort for the deceit, or to set up the fraud as full defense to a suit on the notes.

The claim of the plaintiff that the false representations "were matters of opinion and ordinary trade talk, and would not be a defense to the note," cannot be sustained in respect to the false statement of a fact, as made in this case. Insurance Co. v. Crane, 134 Mass. 56; Hedden v. Griffin, 136 Mass. 229.

The plaintiff's claim that the evidence of a single witness is insufficient in law to prove fraud, if denied by the person against whom fraud is charged, has no foundation. The quality of the testimony given, as well as the number of witnesses produced, must be considered in determining questions of credibility or preponderance of evidence.

The plaintiff's claim that the attempt to disaffirm and repudiate the contract was too late can hardly raise a question of law, when the finding shows that the defendant returned the policy for cancellation on the day when he first ascertained the falsity of the representations on which he had relied, and that he immediately thereafter notified the plaintiff. Counsel for the plaintiff urged in argument that the defendant did not act with sufficient promptness in ascertaining the falsity of the statement relied on. If, in fact, the defendant believed the statement, it would hardly be claimed that he was under an obligation to investigate the truth of a statement he believed and acted upon. The considerations urged were entitled to weight with the trial court in coming to its conclusion that the defendant did believe and did act upon the statement; but such conclusion cannot be held erroneous merely because the record shows there were some considerations entitled to weight which might support a different conclusion. It does not appear that the trial court did not give these considerations due weight; and, indeed, so far as this claim made in argument raises a question of law, the record does not show that the question was distinctly raised at the trial.

The fifth reason of appeal assigns as error the refusal of the court to comply with the statute of 1893, "An act concerning appeals in civil and criminal cases," and to find facts and correct errors of fact in the finding, as requested by the plaintiff in his "request for a change of finding of facts." It appears that the plaintiff's original request for a finding was so framed that the court might properly treat it as a request for a finding under section 1132 of the General Statutes, and not as a request for the incorporation of facts in the finding under the act of 1893;

and that the plaintiff's "request for a change of finding of facts," filed after the court had made its finding in pursuance of the original request, was not so framed and filed as to bring the appeal within the operation of the later act. The claim is substantially disposed of by Schlegal v. Allerton, 65 Conn. 260, 32 Atl. 363. It would seem from the record that the court below did in fact alter its finding, so as to include every fact found by the court which the plaintiff, in his request for a change of the finding, asked to be included for the purpose of properly presenting his questions of law.

The other errors assigned by the appeal present no questions of law. There is no error in the judgment of the court of common pleas. The other judges concurred.

BROWN v. BROWN et al. (Supreme Court of Errors of Connecticut. July 19, 1895.)

EXPECTANT INTERESTS OF HEIRS-CONTRACTS RESPECTING-EXPRESS TRUSTS-PAROL EVI

DENCE-EQUITABLE RELIEF.

1. Heirs expectant have such an interest in their ancestor's property as to enable them to make contracts in respect thereto, enforceable in equity, when they come into possession.

2. A contract between two brothers, whereby one of them is to obtain from their mother a conveyance of all her property, to be held by him for her benefit while she lives, and after her decease in secret trust for the benefit of himself and brother, creates, in form, an express trust.

3. An express trust in land cannot be established by parol.

4. One who, for the purpose of inducing his divorced wife to accept a reduced allowance for the support of their minor children, by causing her to believe that he will receive nothing from his mother's estate, enters into an agreement with his brother, whereby the latter obtains a conveyance from the mother of all her property, to hold for her benefit during her life, and after her death in secret trust for the benefit of himself and his brother, cannot, after the mother's death, ask equity to enforce the trust so made in fraud of his children.

Appeal from superior court, Fairfield county; Prentice, Judge.

Action by William H. A. Brown against Arthur Brown and others to recover an undivided one-half interest in certain land, and for other relief. From a judgment for defendants, plaintiff appeals. Affirmed.

Curtis Thompson and William F. Randel, for appellant. Stiles Judson, Jr., for appellees.

ANDREWS, C. J. This was a complaint brought to the equity side of the superior court, praying that the defendants be required to convey to the plaintiff one-half of all the property (or so much thereof as there was remaining) which said Arthur Brown received by deed from Eliza J. Brown on the 23d day of May, 1885. The court heard the case, made a finding of the facts, and

The finding shows that the plaintiff and the defendant Arthur Brown were the only children of the said Eliza J. Brown, late of Fairfield, who died intestate on the 4th day of February, 1890, aged 86 years. On the 23d day of May, 1885, she was possessed of quite a large amount of real estate in Fairfield and elsewhere. The plaintiff was married in November, 1860, to Mary J. Lockwood, who obtained a divorce from him in 1872, without alimony. They had five children. Four of them are now living. She has ever since had the care of the children. After the divorce, and until March, 1885, the plaintiff had paid to his divorced wife, pursuant to an agreement, $100 a month, towards the support of his said children. About that time he married again, and ceased to make these payments. The children were all minors. In consequence of his nonpayment of the support money, she consulted counsel, with a view of compelling him to contribute to the support of the children, and with a view of enforcing her claim against him and his prospective share in his mother's estate. This intent of the divorced wife became known to the plaintiff through his brother Arthur. The plaintiff and his brother, being desirous of thwarting any effort of this kind, and preventing the said Mary J. Lockwood Brown from enforcing any claim against the plaintiff, or against any property or estate which might come to him from his mother, and for the further purpose of inducing said Mary J. Lockwood Brown to accept a reduced allowance for her support, by inducing a belief on her part that the plaintiff would receive nothing from his mother's estate, together planned, arranged, and agreed to accomplish the desired results by Arthur's persuading their mother, upon some plausible pretext, to convey and transfer all of her property to him, to be held by him for his mother's benefit during her life, and after her decease in secret trust for the benefit of the plaintiff, as well as of himself. This agreement was not shown to be other than a verbal one. The details of it, in so far as they relate to the time of the continuance of the trust after the mother's death, the manner of its execution, and the division of the property between the brothers, if any were ever made, did not appear; nor was it shown that the agreement, in these respects, rested in anything more than a general understanding, and a brotherly confidence that Arthur would deal fairly and equitably with his brother in the ultimate division, whenever the time came when division could be safely had, consistently with the accomplishment of the purposes sought by the conveyances, as aforesaid. A few months prior to said May 23, 1885, the plaintiff had family dithculties, and actual or threatened legal complications, growing out of his relations or alleged rela

tions to a third woman. A desire on his part to prevent any property, present or prospective, being attached or appropriated as a consequence of these complications, co-operated with the purpose before expressed, in inducing him to enter into this arrangement with his brother, and thereby to attempt to secrete his property interests from attachment or execution, by having them in the name of his brother, and apparently owned by him. Arthur, pursuant to the arrangement thus made, carried the plan into execution, in so far as the procurement by him from his mother of the transfers and conveyances was concerned; and on May 23, 1885, she, without valuable consideration, transferred and conveyed to him, by absolute conveyances and transfers, all her estate. By a letter of May 28, 1885, Arthur informed the plaintiff of his success in procuring said conveyances, and added that he would continue in possession, control, and management of the property during his mother's lifetime, and, upon her death, do by the plaintiff as he (Arthur) would have his brother do by him. Said Eliza J. Brown

In

was not known to the plan and arrangement between her sons aforesaid, but, owing to her advanced years and infirmities, was easily led by Arthur to do as was wished of her. She made the conveyances with no desire to deprive the plaintiff of his share of her estate, but under the belief that it was for the plaintiff's best interest, and with the expectation that he was to have his share in the property after her decease. what Arthur did, as aforesaid, in entering into said arrangement and procuring said conveyances, he had no intention of defrauding his brother, and acted only in his interest and behalf, and in good faith as to him. May 30, 1890, Arthur, through the medium of a third person, conveyed the real estate described in the complaint to his wife. These conveyances were withheld from record until July 10, 1894, when they were recorded, and the title to said property is still in her name. On or about June 28, 1894, the plaintiff, then visiting his brother, ascertained that he was in embarrassed circumstances, by reason of the failure of the business enterprises in which he was engaged, and was owing large sums of money to divers creditors. He then, being ignorant of the conveyances aforesaid to Arthur's wife, requested the defendant Arthur Brown to cause the real estate described in the complaint to be conveyed to him, to preserve it from the creditors of said Arthur. This request was denied, the real state of the title being still concealed.

There can be no doubt that the plaintiff and his brother Arthur had on the said 23d day of May, 1885, such an interest in the estate of their mother that they might, in equity, make a binding contract regarding it. A naked possibility or expectancy of an heir to his ancestor's estate, or even of the

anticipated rights of a person as next of kin, may be the subject of a contract in equity which will be equivalent to an assignment of the property, if, and when, it shall fall into possession. 2 Spence, Eq. Jur. 865; Beckley v. Newland, 2 P. Wms. 182; 2 Story, Eq. Jur. § 1040c; 3 Pom. Eq. Jur. § 1287; Fitzgerald v. Vestal, 4 Sneed, 258; Parmelee v. Cameron, 41 N. Y. 392; Jenkins v. Stetson, 9 Allen, 128. If there was a contract between these brothers such as is alleged, it created, in form, an express trust. Arthur was thereby made the, trustee of an express trust. Such a trust could not be established by parol, and no claim was made in the trial court that it was proved by the letter of May 28th. Todd v. Munson, 53 Conn. 579, 589, 4 Atl. 99; Vail's Appeal, 37 Conn. 185, 198; Dean v. Dean, 6 Conn. 285, 287. As there was no fraud practiced on their mother, this case does not come within the rule laid down in Dowd v. Tucker, 41 Conn. 197, and other like cases. Buckingham v. Clark, 61 Conn. 204, 209, 23 Atl. 1085. But we think the plaintiff has no standing in a court of equity. He does not come into court with clean hands. The scheme he entered into with his brother was a fraud upon his minor children by his divorced wife. Its principal aim was to secure a reduction of the allowance to her for their support. The general rule is that the parties to a contract must act, not only bona fide between themselves, but that they shall not act mala fide in respect to other persons who stand in such a relation to either as to be affected by the contract or its consequences. Whenever a party who, as actor, seeks to set the judicial machinery in motion to obtain some relief, has himself violated conscience or good faith in his prior conduct with the matter of the controversy, then the door of the court will be shut against him; the court will refuse to interfere in his behalf, to acknowledge his right, or award him any remedy. The plaintiff's case comes precisely within this doctrine. This whole topic has been very fully gone over in a recent case in this court. Barnes v. Starr, 64 Conn. 136, 28 Atl. 980. We refer to that case, and the cases cited, as expressive of our present views. There is no error. The other judges concurred.

POMPONIO v. NEW YORK, N. H. & H.

R. CO.

(Supreme Court of Errors of Connecticut. July 19, 1895.)

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE FINDINGS WHEN DISTURBED-RAILROAD COMPANIES-DUTY TO PERSONS ON CROSSINGS.

1. Whether or not a person killed on a railroad crossing was guilty of contributory negligence involves the question of law as to the nature and extent of decedent's duty to avoid injury under any circumstances, and the question of fact as to whether he fully performed such duty; and the finding of the trial court is conclusive, where it does not appear that it took an

erroneous view of the question of law, or committed any error of law in arriving at its conclusion on the question of fact.

2. The duty of a railroad company not to injure, by its own act, a person on a crossing which is not a public crossing, is the same, whether such person is there by implied invitation, or is a mere licensee.

3. In an action against a railroad company for the death of plaintiff's intestate, it appeared that deceased was an employé in shops not owned by defendant, located on either side of its tracks; that there was a crossing leading from a street to the shop where deceased worked, and which was practically the only entry to such shops; that, for over 30 years, defendant had kept it planked, and in condition for use for the 300 or 400 people employed in such shops in going to and from their work, and for the teams for their employer; that it was used, as defendant knew, by such employés, in crowds at a time, at certain hours of the day, and at other hours was practically unused; and that as deceased was returning to his work, after dinner, he was struck by a car which had just been detached from an engine while making a flying switch. Held, that a finding that defendant was guilty of negligence would not be disturbed, the record not disclosing any error of law in de ciding the questions either with respect to the relation which the parties sustained, or as to the duties they owed to each other, etc.

Appeal from superior court, New Haven county; Prentice, Judge.

Action by Nicolangelo Pomponio, administrator of the estate of Germaio Pomponio, against the New York, New Haven & Hartford Railroad Company, to recover for the death of plaintiff's intestate, caused by de fendant's negligence. Tried to the court without a jury. From a judgment for plaintiff, defendant appeals. Affirmed.

Stephen W. Kellogg and John P. Kellogg, for appellant. Charles G. Root, for appellee.

TORRANCE, J. This is an action brought to recover damages for injuries claimed to have been inflicted by the defendant upon the plaintiff's intestate, causing his death. The court below, upon the facts found, rendered judgment for the plaintiff, and the defendant appealed.

The following is the substance of the finding: The intestate, Germaio Pomponio, was, when injured, working for Holmes, Booth & Hayden, a corporation, in Waterbury. The shops of said corporation are located upon both sides of the defendant's railroad, and extend for a considerable distance parallel with it. Germaio was employed in that portion of the works lying easterly of the tracks, and on the 30th of May, 1892, a few minutes before 1 o'clock in the afternoon, he was returning to his work, and in doing so was passing over the tracks of the defendant's railroad, at a crossing leading from one of the streets in Waterbury to one of the two regular entrances to the easterly portion of the works of his employer. On both sides of this crossing was a wooden gate, and a house for a gate tender, belonging to and maintained by Holmes, Booth & Hayden.

This crossing was regularly prepared for the purpose of access to said works, and

was regularly used by three or four hundred of the employés in going to and from their work, as well as by teams and others having business with said corporation. It was the rule of said corporation that these employés should go through the gate at the easterly terminus of this crossing, in going to and returning from their work. None others than said employés, and those having business with the corporation, were permitted to enter at said entrance without a pass obtained from the office. This crossing has been thus maintained and used for over 30 years, and said use has always been open, notorious, and well known to all the world and to the defendant. During all this period the defendant has kept this crossing planked, and in condition for travel to said shops; and the planking for such purpose has generally been furnished by the defendant, but at times by said corporation. The layout of defendant's road, in 1848, antedated by a few years the erection of these shops, and the establishment of this crossing. It was well known to the defendant that at a few minutes before the morning starting, at the noon closing, the 1 p. m. starting, and the evening closing hours, the employés of said works passed in or out in large numbers, over this crossing, while during the other hours of the day it was comparatively little used. South of the crossing were two side tracks, used principally for the storage of cars for the shops. Thirty-four feet north of the crossing was the south end of an iron truss bridge of the defendant over the Naugatuck river. It was 105% feet long. Its main trusses were 24 inches wide. Its overhead supports were of

iron of the various sizes usual in such a bridge, and it was not otherwise inclosed. The defendant was accustomed to switch over this crossing from its freight yard north of the bridge, in order to place its cars on the side tracks south of the crossing. In switching cars upon the more northerly of the two sidings, flying switches were customarily made. This switching could only be done during the intervals between the passing of regular trains, and one of these intervals was between 11:15 a. m. and 1:10 p. m. At the time Germaio was injured the defendant was making a flying switch over this crossing, in order to put a box car from the freight yard onto one of the two side tracks south of the crossing. Said car, having been got under headway, was, near the north end of the bridge, cut off from the engine, which then sped on, at about 12 or 15 miles an hour, until it passed the crossing. and the switch about 150 feet south of the crossing. Upon the engine were the engi neer and fireman in the cab, the yard conductor on the forward footboard, and two brakemen on the rear footboard of the tender. Upon the box car, which followed some distance behind, and which was upon the bridge when the engine passed the crossing, was a single brakeman, on top of the car at

the rear, where the brake was. As the engine approached the crossing the whistle was blown and the bell rung, and Germaio and Loughlin, a fellow workman, observed its approach, and halted for it to pass at a distance of between 6 and 15 feet from the tracks. After it had passed, Loughlin looked up and down the track. He did not see the car coming, being prevented from doing so either by the bridge, or by escaping steam, smoke, or flying dust, or both combined, and proceeded on his way. Germaio advanced at the same time. As they were upon the planking between the tracks, the silently advancing car, going at the rate of from six to eight miles an hour, struck both Loughlin and Germaio, causing the latter the injuries from which he died a few days later. It did not appear in evidence that any one observed, or was in a position to observe, Germaio, to see whether or not he looked up the track before starting to cross, after the engine passed, and there was no direct evidence upon this point. As the engine passed the deceased, none of the men upon it gave any warning of the approaching car, or did anything to attract his attention to it. When the brakeman upon the box car saw that an accident was imminent, he shouted, but was not heard by the crossers, as the circumstances rendered it little probable that he would be, or that, if heard, the intended warning would be of any avail. He also began to apply the brake, but with no effect in diminishing the speed of the car until the accident occurred. When Germaio started across the tracks, after the engine passed him, the box car was somewhere on the bridge, and it was more or less concealed from his view by the bridge. From any point in the line of said crossing, between defendant's west rail and the gate house, the view to the northward was unobstructed, save by the bridge; and standing in said line, within a distance of five feet from said rail, one had a clear view through the bridge. Between six and eight or nine feet from said rail the trusses and supports of the bridge seriously interfered with the view of objects on the bridge, so that a box car upon it "would be largely obscured from sight." At no point, however, would such a car be wholly hidden from sight. The finding concludes thus: "I find from the evidence as follows: (a) That the deceased was upon the crossing at the time of the accident by the implied invitation of the defendant. (b) That the defendant failed to exercise due and reasonable care towards the deceased in the premises, and was negligent towards him, whereby he received his injuries. (c) That the defendant failed in its duty to the deceased, and did not exercise reasonable care for his safety, under the circumstances, although he was upon said crossing as a mere licensee only, and that the defendant was therefore guilty of negligence directly causing said injuries to the deceased. (d) That the de

ceased did not, at the time of the accident, fail to make reasonable use of his senses, and did not, by such failure, or otherwise, in any manner, by his own negligence or want of care, contribute to his injury."

Upon the trial below the defendant claimed that the deceased was upon the crossing as a mere licensee, that the defendant at the time owed to him no duty as such licensee, that the defendant was not guilty of negligence, that the deceased was guilty of contributory negligence, and that judgment should be rendered for nominal damages only. The court rendered judgment for substantial damages. The defendant claims that the court below, upon the facts found, erred in holding it guilty of negligence towards the decedent, and also in holding that the decedent was not guilty of contributory negligence. We think the question involved in this last claim, as to the contributory negligence of the decedent, is disposed of by the finding as one of fact, and is not open to review upon this appeal. The general question whether the decedent was guilty of contributory negligence involves these two subordinate questions: First. What was the nature and extent of the duty to avoid injury resting upon the decedent under the circumstances? Second. Did he fully perform that duty? The first question is one of law, and is answered by saying that whether the decedent was upon the crossing as a trespasser or a licensee, or was there by implied invitation, it was his duty to use such measures to avoid danger and injury to himself as a man of ordinary prudence would have used under the same circumstances, and this was all the law required of him. The other question, whether his conduct in avoiding the dangers incident to his situation was that of a man of ordinary prudence, is clearly a question of fact, to be answered by the trior from the facts proved by the evidence. The conclusion of the trior upon this point, if he committed no error of law in reaching it, is final, and cannot be reviewed by this court upon this appeal. Farrell v. Railroad Co., 60 Conn. 239, 21 Atl. 675, 22 Atl. 544. Now, the claim of the defendant, that the court below erred in holding that the decedent was not guilty of contributory negligence may mean that the court erred with reference to this question of law, or this question of fact, or both. But the record does not disclose that the court erred with reference to either question. It nowhere appears that it took an erroneous view of the nature or extent of the decedent's duty, or that it held him to a duty less in any degree than the law imposed on him; and it nowhere appears that, in coming to the conclusion that he had fully performed his duty, the court below committed any error of law. Upon this part of the case, then, the record fails to show that the court below committed any error of law, and this disposes of the defendant's claim upon the question of contributory negligence.