material upon which it is being used, vaporing more rapidly as the temperature rises. These fumes, mixing with the air, are liable to form a highly and dangerously explosive mixture, which, when brought in contact with a flame, will explode or cause an explosive flame of a great strength and power. By reason of these qualities, due to the presence of benzine in the proportions stated, the compound is "a dangerous substance to use on or about any warm or hot surface, as a stove, where there is, or is liable to be, any flame with which said fumes may come in contact, whether said flame is in said stove or within the possible reach of the mixture of air and benzine fumes which may be formed in the use of said compound." Prior to said 6th day of March, 1906, the defendant sold to R. and F. H. Kamak, of the city of Derby, who were retail dealers in paints, oils, stove polish, etc., a number of cans of said Stoveline, put up and manufactured by him, without notifying them of the dangerous character of it, and without notifying them of the danger arising from the use of it on or about hot stoves or stoves in which there was a fire. The defendant was a chemist and knew the composition of Stove line, and was familiar with the nature and danger of the use of benzine. Since 1903 he had sold 15,000 cans of Stoveline, but had never before heard of an accident from its use. On the 1st day of March, 1906, the plaintiff's intestate purchased of said Kamaks one of said cans of Stoveline for the purpose of polishing a stove. She was not cautioned by them against using the same on a hot stove, or near any flame of fire, and she did not know that there was danger in so using it. On the 6th day of March, 1906, Mrs. Wolcho used said Stoveline in the manner directed on the can, which was read to her by her daughter, and with the brush furnished for such purpose on a stove in her kitchen. A coal fire was still burning in the stove, though it was then going out. The stove was warm, but not red hot. An ordinary lighted kerosene lamp stood on a table some five or six feet from the stove. The door and windows of the kitchen were closed. She was holding the can of Stoveline in one hand, and with the other applying the Stoveline to the oven door upon the front of the stove, the stove covers being on and the doors closed, and no flame apparent from the top or sides of the stove, when said compound caught fire, the benzine in the can ignited, and burst into flame, and set fire to the clothes of the plaintiff's intestate; and, as a result, she was so severely burned that she died on April 6, 1906. She was in the exercise of reasonable care in so using said mixture. In the trial court the case was heard in damages upon the defendant's default, and his consequent prima facie admission of liability, upon the grounds alleged in the complaint, and his assumption of the burden of The defendant contended in the court below, as he does in this court, that he sustained this burden of proof by establishing, among other things, (1) that the preparation in question was not manufactured or sold for use on stoves, but as a "stovepipe enamel"; (2) that its use even upon a hot stove was not dangerous; (3) that, if it has proved to be dangerous, the defendant was not negligent in selling it without notice of its inflammable character; and (4) that the plaintiff's intestate was negligent in using it upon a hot stove. Regarding the first proposition which the defendant claims to have established, it is immaterial that the defendant did not intend that "Stoveline" should be used on stoves if from the labels and directions upon the cans persons of ordinary intelligence, who were expected to use this article, and who read, or had read to them, the labels and directions on the cans, were informed that it might be used on stoves. The name "Stoveline" on the label, the statement that it is "for use on all iron work," and that it would "stand a high temperature" are in our opinion clearly sufficient to justify the conclusion reached by the trial court that one who had no knowledge or notice of the dangerous character of this mixture might reasonably have supposed that it was intended to be used upon stoves, and might safely be used upon a hot stove. The Second, whether it was dangerous to use this preparation upon a hot stove, was a question of fact, upon which the evidence was conflicting, and the decision of the trial court, who heard and saw the witnesses who testified upon this question, is final. danger of so using it, as stated in the finding, is not materially variant from that alleged in the complaint. The plaintiff was not required to state in technical terms and with scientific accuracy exactly what happened or was liable to occur when this mixture was applied to a hot stove. The averment that when used upon hot substances (in connection with the averment that Mrs. Wolcho was injured when using it upon her kitchen stove) it became dangerous, "in that it was liable to ignite and cause a fierce blaze in the nature of an explosion which is difficult to control," was sufficient to permit proof that the mixture was dangerous to be used upon a hot stove, because, when so heated, the fumes arising from the benzine contained in the compound, and uniting with the air, formed a dangerous mixture, which coming in contact with a flame in or near the stove was liable to cause an explosive flame. Upon the third claim we find no facts inconsistent with the conclusion of the trial court that the defendant failed to disprove his alleged negligence. The facts foundthat he was a chemist; that he knew the composition of Stoveline, and was familiar with the inflammable nature and danger of he placed upon the cans contained no notice | ticle in question as one which might be safeor warning of such danger, if they do not ly used upon a hot stove. Later in the trial establish his negligence-do not prove his the defendant was permitted to testify that freedom from negligence, nor does the fact he did not know of the labels upon any othfound that during his two or three years' er stovepipe enamel except upon the one previous experience in the sale of this arti- called "Sapolin," that that contained no cle he had heard of no accident from the warning, and that the label on Stoveline was use of it. copied very nearly from it. Of other rulings complained of it is sufficient to say that they were manifestly correct. There is no error. The other Judges concurred. (81 Conn. 532) The fourth claim, that the facts show that the plaintiff's intestate was guilty of contributory negligence, cannot be sustained. The The defendant has, under section 797 of trial court has not only held that the de- the General Statutes of 1902, procured the fendant failed to sustain his burden of proof evidence and rulings to be made a part of upon this question, but has found that Mrs. the record, and in his assignment of errors Wolcho was in the exercise of reasonable has requested numerous corrections of the care in using this polish as she did. We finding. The basis of most of the requests find no error in law in such decision. The for material changes seems to be that what directions upon the cans were read to Mrs. some witness has testified to, and no witness Wolcho. Her belief that the mixture was in- has contradicted, must be treated as an adtended for use upon a stove was not an un- mitted or an undisputed fact, under the reasonable conclusion from the language of rules of Supreme Court (Practice Book 1908, the labels and directions, and, having reason- p. 268, § 10). That this is a mistaken view of able ground for believing that Stoveline the meaning of the rule is apparent from its might properly be used as a stove polish, the express language: "That a witness testified use of it for that purpose upon a hot stove to a fact without direct contradiction is not was not negligence as a matter of law. The of itself sufficient: the trial court must ruling excluding the testimony of the defend- judge of the credit of a witness." We perant that he had never heard any complaint ceive no error of law upon the part of the about this material before the accident was trial court in reaching the conclusions stated not injurious to the defendant, as it is found in its finding, and they sustain the judgas a fact that he had heard no complaint.ment rendered. The requests for corrections One Dr. Stanley, a witness for the defend- are denied. ant, having testified that he had experimented upon other mixtures similar to Stoveline, naming one called "Sapolin" and another called "P. G. E.," was asked how their component parts compared with those of Stoveline; and one Meyer, a witness for the defendant, having testified that he had dealt several years in Stoveline and other "stovepipe enamels," was asked whether there was any difference in them as to directions or warnings as to the use of them. Both these inquiries were properly excluded. First, it does not appear to have been shown that the constituent parts of the other mixtures were precisely the same, and in the same proportions as those of Stoveline; further, it did not appear that these other mixtures were advertised to be used upon stoves, or were in fact used upon stoves. One of these witnesses describes them as "stovepipe enamels." They may have been only advertised to be used, as the defendant claims Stoveline was, for other purposes than as a stove polish. They evidently were sold under different names than Stoveline, and the names under which they were sold do not appear to indicate that they were to be or might be used upon stoves, as it is claimed the word "Stoveline" does. The fact that mixtures similar to Stoveline, and dangerous to be used upon a hot stove, had without notice of such danger been generally sold for other purposes, did not tend to prove that the defendant was not negligent in selling the ar ATWOOD v. JARRETT. (Supreme Court of Errors of Connecticut. Jan. 7, 1909.) 1. TRIAL_(§ 136*)—QUESTIONS OF LAW OR OF FACT-DURESS. What constitutes duress is a matter of law. Whether or not it enters into a particular transaction is a question of fact. [Ed. Note.-For other cases, see Trial, Cent. Dig. &$ 320, 321; Dec. Dig. § 136.*] 2. APPEAL AND ERROR (§ 495*) – Record — MATTERS TO BE SHOWN BY. Where the record contains no finding of the subordinate facts, and no statement of the legal principles applied by the trial court in reaching its conclusion that no duress was practiced, the Supreme Court of Errors is left without material for an inquiry into the propriety of the court's action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2287; Dec. Dig. § 495.*] 3. APPEAL AND ERROR (§ 499*) — RECORD — MATTERS TO BE SHOWN BY. Under Gen. St. 1902, § 802, providing that the Supreme Court of Errors shall not be bound to consider any error unless it appears from the record that the question was raised below and decided adversely to appellant, a question not shown by the record to have been presented to the court below will not be reviewed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2295; Dec. Dig. § 499.*] Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge. Action on notes and collateral agreements | 2. PAYMENT (§ 17*)-NOTES-EFFECT ON ME. by Dwight M. Atwood against William P. CHANIC'S LIEN. Jarrett. Judgment for plaintiff, and defendant appeals. No error. lien filed paid a subcontractor his claim against An owner of property before notice of the contractor, partly in cash and the balance by note. The owner received no receipt other Ulysses G. Church, for appellant. Francis than a memorandum showing a credit for the P. Guilfoile, for appellee. PRENTICE, J. There are only three as signments of error. The first two complain of the action of the court in not holding, as the answer set up, that there was such duress practiced by the plaintiff upon the defendant that the agreements sued upon would not be enforced. What constitutes duress is a mat ter of law. Whether or not it enters into a particular transaction is a question of fact. Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417. The court has found that the plaintiff practiced no duress. The record contains no finding of the subordinate facts, and no statement of the legal principles applied in reaching its conclusion. We are therefore left without material for an inquiry into the propriety of the court's action in this regard. The record nowhere, either in the pleadings, finding, or elsewhere, dis closes that the claim embodied in the remain ing assignment of error was either presented to or passed upon by the court below. It is therefore not properly before us for consideration. Sperry v. Butler, 75 Conn. 369, 371, 53 Atl. 899; Gen. St. 1902, § 802. There is no error. The other Judges con cur. (81 Conn. 502) A. W. BURRITT CO. v. NEGRY et al. (Supreme Court of Errors of Connecticut. Jan. 6, 1909.) 1. MECHANICS' LIENS (§ 115*)-SUBCONTRACTOR'S LIEN PAYMENTS TO PRINCIPAL CONTRACTORS-TIME OF FILING LIEN-STATUTES. Gen. St. 1887, §§ 3020, 3021, authorized a mechanic's lien to be filed by a subcontractor 60 days after materials furnished, and allowed to the owner whatever payments he should make to the original contractor in good faith before notice of lien. Gen. St. 1902, § 4137, gave the right to file a lien any time after materials furnished and until 60 days after ceasing to furnish materials, and section 4138 allowed to the owner whatever payments he should make to the original contractor in good faith before notice of lien, and provided that no payment should be made in advance of the time specified in the contract without notice of intention to make such payment being given to persons known to have furnished materials. Held, that payments made in advance of the time specified in the contract without notice of intention being given to subcontractors furnishing materials with knowledge of the owner, though made before notice of lien was filed, could not be allowed the owner, as otherwise the last provision of section 4138 would be of no force. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 150-159; Dec. Dig. 8 115.*] cash paid and the amount of the note, and the account in the subcontractor's book was not closed until after another subcontractor filed a writ ten notice of lien, and brought suit to foreclose. first subcontractor's claim and the owner could Held, that the note was not a payment of the not charge it against the contractor so as to destroy the second contractor's lien on that amount. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 70-77; Dec. Dig. § 17.*] Appeal from Superior Court, Fairfield County; Silas A. Robinson, Judge. Action by the A. W. Burritt Company against Antonio Negry and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendant appeals. No error. The defendant Negry, being the owner of a lot of land in Bridgeport, on the 15th of August, 1905, entered into a written contract with Pillotti & Son, a firm of builders, as original contractors to erect a building thereon. By the terms of the contract they were to be paid $3,620 therefor in four payments, the first, of $1,000, to be made when all the outside work was done and roof ready for the tinner; the second, of $1,000, when the building was ready for the brown mortar, the third, of $1,000, when the carpenter work was completed and accepted by the owner, and the last, of $620, within nine months after the job was completed. The carpenter work was completed and accepted by the owner on or about March 15, 1906. The plaintiffs, at the request of the original contractors, began on October 2, 1905, to furnish lumber, timber, doors, sashes, and trim for the building and ceased to furnish such materials on the 10th of March, 1906. Negry knew on December 27, 1905, that they had been and still were furnishing these materials for the building. He made to the original contractors the first two payments of $1,000 each on the 28th day of October and 29th day of December, when they were due, respectively, under the terms of the contract. He also between December 29, 1905, and January 27, 1906, before any further payment was due under the contract made to the original contractors several additional payments amounting in all to $910. He gave the plaintiffs no notice of his intention to make these payments, and they had no knowledge that he had made them until they had filed their lien. After these payments had been made, and before the final payment was due under the contract, they gave him an oral warning and a written notice not to pay the original contractors any part of the final payment. On March 16, 1906, another subcontractor who had furnished materials for the build ing to the amount of $337 served a legal notice upon Negry that it intended to claim a lien therefor upon the building. He thereupon at once paid such subcontractor to apply on the bill of the original contractors $237 in cash and gave it his note for the balance, $100, payable in two months to the order of the subcontractor. He did not obtain a receipt in full for the amount of the bill owned by Pillotti & Son, but received a memorandum showing a credit of $237 in cash and $100 by note. The account of Pillotti & Son on the subcontractor's books was not closed until two months later, when the note was paid by Negry. The plaintiffs gave Negry the statutory notice of their intention to claim a lien on March 30, 1906, and lodged with the town clerk their certificate of lien, to foreclose which this action is brought, on the following day. At this time there was due to the plaintiffs from the original contractor a balance of $1,538.99 for materials furnished in the construction of the defendant's building. The defendant claimed upon the trial that in determining the amount for which the owner was liable to the lienors the payments amounting to $910 should be credited to the defendant as having been made in good faith and should be deducted from the amount due to the contractor; also, that the defendant should be credited with the $100 note in the same manner as though that sum had been paid in cash. The court overruled these claims. The appeal questions the correctness of these rulings. John C. Chamberlain and Alexander L. De Laney, for appellant. John S. Pullman, for appellees. THAYER, J. (after stating the facts as above). To preserve their lien the plaintiffs as subcontractors were bound to give the defendant written notice that they had commenced to furnish materials for the construction of his building and intended to claim a lien therefor. They were bound to give this notice "after commencing, and not later than sixty days after ceasing, to furnish materials or render services." Gen. St. 1902, § 4137. The statute gave them the option to serve the notice at once upon commencing to furnish the materials or to delay it to any date not later than sixty days after ceasing to furnish them. They were clearly within their rights therefore in delaying the notice until 20 days after they had ceased to furnish materials. Under section 4138 of the statutes their lien could in no case attach upon the defendant's building to a greater amount than he had agreed to pay the original contractor for its construction; and, if he had reduced the amount due the contractor by payments under the contract made to him in good faith before notice of the lien, the lien could not attach for a greater amount than the balance due the payments amounting to $910 are to be allowed as made in good faith. The statute last mentioned provides that "in determining the amount to which any lien or liens shall attach upon any land or building, the owner of such land or building shall be allowed whatever payments he shall have made, in good faith, to the original contractor or contractors before receiving notice of such lien or liens. No payments made in advance of the time stipulated in the original contract shall be considered as made in good faith, unless notice of intention to make such payment shall have been given in writing to each person known to have furnished materials or rendered services at least five days before such payment is made." The payments in question were made in advance of the time stipulated in the contract, and when the defendant knew that the plaintiffs had been and were furnishing materials for his building and without giving them any notice of the intended payments. If therefore, the statute is to receive a literal construction these payments are not to be considered as made in good faith, and so cannot be allowed to the defendant in determining the amount to which the plaintiff's lien attaches. The defendant insists that to refuse to allow payments thus made before notice of intention to claim a lien had been given, and which, although made in advance of the stipulated time, might have been made at the stipulated time and still in advance of the notice, is to defeat the purpose of the statute, which he claims is solely to secure the subcontractor's "right, if he serve his notice of intention to claim a lien before a payment comes due, to find in the hands of the owner the entire sum." It is apparent that, if this is its sole purpose, the last sentence of the statute is of no force. Under the statute prior to its amendment in 1899 (Pub. Acts 1899, p. 1052, c. 121), this provision did not appear. The lienor was then bound to give his notice "within sixty days from the time when he shall have commenced to furnish materials," etc., and the owner was "allowed whatever payments he shall have made in good faith to the original contractor or contractors before receiving notice of such lien." Gen. St. 1887, §§ 3020, 3021. The amendment of 1899 permitted the subcontractor to delay, filing his notice of lien until 60 days after he ceased to furnish materials or services, and the closing language of what is now section 4138 was added at that time. To say that the present statute means only what the defendant claims it does is to say that the added language means nothing in the statute to which it was annexed. The statute, as it stood before, gave the lienor the right which the defendant claims is the only one given by the present law-the right, if he served his notice before a payment became due, to find in the hands of the Whether the note for $100 given to another subcontractor who had given notice that he which was there when notice was served. It with knowledge of the provisions of the conis to be presumed that the amendment was tract and relying upon the same, have negnot made without a purpose. Sections 4137|lected to file their liens. If he has failed to and 4138 are for the benefit of persons who do this and is thus compelled to pay again, furnish labor and material for the construc- the fault is his own. Under the statute as tion of the building. It gives them a lien up- we interpret it the defendant's advance pay. on the building as against an owner between ment cannot be considered to be made in whom and themselves there is no privity. It good faith. gives their lien a preference over that of the original contractor. They are thus given a means of securing through the owner's prop-claimed a lien upon the defendant's building erty a debt due to them from the contractor alone. The tendency to extend the time within which the notice of intention to claim the lien may be served appears in the amendments already referred to. It is not material at present to inquire why the parties do not serve these notices upon beginning to furnish the labor or materials. Possibly such a course is not favored by the original contractor. The longer the delay the greater the opportunity by payments made collusively or in bad faith to defeat the subcontractor's lien and the greater the difficulty in discovering and proving the bad faith. The provision in question, by providing that no payment made in advance of the time stipulated shall be considered as made in good faith unless notice of intention to make it shall have been given to each person known to have furnished materials or rendered services at least five days before such payment is made, is there fore of material benefit to the subcontractor. If, by inadvertence or design, he has delayed giving early notice of his lien, notice of the intended payment will enable him to protect himself against it by at once serving notice of the lien. On the other hand, if such notice of lien is not served within five days after notice of the intended payment has been given, the owner may proceed with the contemplated payment in safety if made in good faith. Under the former law he could make no payment after notice of an intended lien had been served upon him; but, before such notice was served, he could make payments both at, and in advance of, the stipulated time if made in good faith. Under the present law he is, as before, allowed all payments made should be allowed the defendant in determining the amount of the plaintiffs' lien depends upon different considerations. The question is, Was the giving of the note under the circumstances detailed in the statement of the case a payment? It was given after the final payment under the contract was due, and, if it is to be considered as a payment to the contractor, it should be allowed to the defendant. But the mere giving of the note in the absence of any agreement that it should be in payment of the contractor's indebtedness to the subcontractor would not extinguish that indebtedness or be a payment of it. Bill v. Porter, 9 Conn. 23, 30; Hopkins v. Forrester, 39 Conn. 351, 354; Usher v. Waddingham, 62 Conn. 412, 426; Cummings v. Gleason, 72 Conn, 587, 589, 45 Atl. 353. No such agreement is found, but it is found that the party receiving the note did not receipt the bill, but merely gave a memorandum of credit by note. The party receiving the note, therefore, had he seen fit, could have filed his certificate of lien as a security for the original debt, and could then have claimed an apportionment of the security between himself and the plaintiffs. The case is quite similar to Hopkins v. Forrester, supra, where it is held that notes given by the owner to the lienor were not a payment, and did not discharge the lien. Upon the finding the defendant failed to prove that the note was a payment. There is no error. The other Judges concurred. (81 Conn. 492) IRWIN v. JUDGE. 6, 1909.) QUESTIONS OF FACT. It is not a sufficient reason for holding that it was error not to set aside a verdict that the ought to have reached a different conclusion. reviewing court is of opinion that the jury [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3948-3950; Dec. Dig. 1005.*] when due and in good faith before notice, (Supreme Court of Errors of Connecticut. Jan. but he is not allowed for payments made 1. APPEAL AND ERROR (§ 1005*) — REVIEW when not due, although made before notice of a lien, unless he first gives five days' notice of the intended payment to those persons who he knows have furnished materials and labor. Under the law before amendment notice of the intended lien prevented any payment; under the amended law, knowledge of the furnishing of materials and labor prevents the making of any payment which is not due unless five days' notice of such intended payment is given. There is no injustice in compelling the owner, when he contemplates making a payment before the time provided in his contract, to notify all those, of whom he has knowledge, who, perhaps 2. MASTER AND SERVANT (§ 301*)-INJURIES TO THIRD PERSONS-EXISTENCE OF RELA TION. Where, though a chauffeur was in the employ and pay of another person than defendant, he had been intrusted by defendant with the running and management of his car, defendant was liable for his management thereof. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1213; Dec. Dig. § 301.*] |