and denies all the other allegations of the answer and counterclaim. showing 464 tons and 1,900 pounds of ice sold and delivered by the plaintiff to the defendant during the months of August, Sep- Upon the trial it was proven, and not detember, and October, 1906; the deliveries nied by either party, that from January to during August being charged at $5 per ton, March, 1906, the plaintiff had been selling ice and those for September and October at $6 to the defendant at $2 per ton, that on March per ton, and the total charge being $2,526.70. 30th, the plaintiff notified the defendant by The answer, after alleging that the plain- letter that until further notice the price of ice tiff is an ice dealer and the defendant a delivered to it would be at $4 per ton, that on wholesale and retail dealer in ice cream August 7th by another letter it was notiin New Haven, and that the action is brought fied that until further notice the price would to recover a balance of $2,526.70 claimed to be $5, and that on August 31st by another be due contains, the following allegations: similar letter notice was given it that after "(4) On or about February 1, 1906, the de- September 1st the price would be $6. It fendant, who for some time prior thereto was also undisputed that monthly bills were has been a customer of the plaintiff, and rendered for ice sold each month at the the plaintiff entered into an oral agreement, different prices, that these had all been paid whereby the plaintiff was to furnish ice to to August 1, 1906, and that these payments the defendant to be used by it in said ice amounted to the sum of $3,386.25 as stated cream business during the year 1906. (5) in the defendant's answer. The defendant The plaintiff did furnish ice to the defend- claimed that these payments were made unant under said agreement from February 1, der protest; the plaintiff that they were 1906, to October 26, 1906, and the total made freely and voluntarily. The chief conamount of ice furnished during said period tested question between the parties, apart was 1,351.88 tons. (6) It was agreed be from the quality of the ice, was whether tween the defendant and the plaintiff that there was a contract between the parties all ice furnished should be delivered at the such as was set up in the answer. The dedefendant's factory at $2 per ton net, and fendant claimed to have established such a that all of said ice should be clean and solid, contract; the plaintiff claimed that the evimade up of large blocks, and first class in dence failed to establish it, and that, if such every particular and in every way satis- a contract was made, it was abrogated later. factory to the defendant. (7) The ice men- The court charged the jury that the sendtioned in the bill of particulars was parting of the letters giving notice of an increase of the ice furnished the defendant under said of price, and the acceptance of ice thereafter agreement." The answer then alleges that by the defendant and payment of the price the ice furnished was full of dirt and refuse demanded, would not of themselves amount and was not satisfactory to the defendant, to a waiver or abrogation of the contract that it could not be handled and used by claimed by the defendant, if made; but that him except at a much larger expense than such facts would be evidence for the jury to if it had been ordinary marketable ice, that consider in determining whether there was it was not worth more than $1 per ton, and such a waiver or abrogation of the contract. that, if it had been clean, solid, and satis- The plaintiff claims that there was error in factory ice, it would have been worth $2,700. this part of the charge. If there was a conIt then alleges that the defendant paid the tract between the parties made in February plaintiff after February 1, 1906, on account as claimed by the defendant, the plaintiff of said ice, various sums amounting in all alone could not abrogate it. It required to $3,386.25, that this was "all and more the same meeting of minds to abrogate it than all said ice was reasonably worth," and which was required to create it. The plainthat there was no other agreement, express tiff could not, by writing a letter to the deor implied, under which the ice mentioned fendant, stating that ice thereafter delivered in the bill of particulars was furnished, ex- would be charged at a different price, annul cept the one set up in the answer. The an- the contract or change its terms. The deswer contains the following by way of coun- fendant, in accepting the ice after such noterclaim; paragraphs 11 to 19, inclusive, tice, and in paying the increased price, may having been stricken from the answer be- have done so, as he claimed was the fact, fore the counterclaim was filed: "(1) All the under protest, and claiming his rights under foregoing paragraphs of this answer, except the contract and that an adjustment in acparagraphs 11 to 19, inclusive, are hereby cordance with it should afterwards be made. made part of this counterclaim. (2) Said ice The two parties might rescind or change the was worth at least $4,503.55 less than the terms of the contract, and, as the jury were plaintiff claims on account of its deficient told, the acceptance of the ice after the nocharacter. The defendant claims to recoup tices and the payment of a double price for said sum of $4,503.55 for such deficiency, to it was evidence, and very strong evidence, the extent of the balance claimed by the of the abrogation or waiver of the contract plaintiff, and asks judgment against the if it ever had existence; but these circumplaintiff for the excess." The reply admits stances did not as matter of law amount that $2,526.70 is claimed to be due, that to an abrogation or waiver of it, and it was their inferences from the facts and say | judgment, where there is any agreement by whether such was their effect. The same one party to sell ice for the year, and the considerations support the action of the consideration by the other party is to pay court in refusing to charge, as requested by $2 a ton for that ice, it would be a good conthe plaintiff, that the sending of the letters tract. That is, it would not be necessaryand the receipt of the ice and payment for it would not be absolutely essential-that the it at the advanced price thereafter by the other party should agree to take ice for the defendant constituted an abrogation or waiv- whole year at that price. But if the offer is er of the contract. made on the part of the plaintiff to furnish The plaintiff requested the court to charge the defendant ice for one year, or the seathat: "There is no allegation in the plead- son, and in consideration the defendant agrees ings that the defendant agreed to buy goods to pay therefor $2 a ton for that ice, I think of the plaintiff for a year, or any specified that is a sufficient consideration and a valid time. Under the pleadings there was noth-contract." As the request to charge assumes, ing to prevent the plaintiff from charging the without admitting, that a contract whereby price in April, or any subsequent time." This the plaintiff agreed to sell the defendant, and was in effect asking the court to take from the jury's consideration all of the evidence which had been offered to support the defendant's claim that there was a contract under which the ice was to be furnished for a year at $2 per ton, for the reason that the answer did not allege such a contract. If the answer is thus defective, advantage could have been better taken of such defect by demurring to the answer or by objecting to all evidence of the contract; but the court charged, and correctly, that there was a sufficient allegation of a contract between the parties and refused to charge as requested. A general allegation, sufficient to give the plaintiff notice of the nature of the contract which would be attempted to be proved, was all that was required.. The fourth and sixth paragraphs state that an agreement was entered into between the parties and the nature of the claimed agreement. It was not necessary to allege that the defendant promised to take the ice in a certain quantity for a year and to pay for the same. These matters were to be proven under the allegation that there was such a contract. Under the allegations the defendant might prove a valid contract mutually entered into by the parties of the nature which he claimed to have proven. the latter agreed to buy of the plaintiff, all the ice which the defendant should want, or need in its ice cream business, for a stated time at a stated price, would be valid and binding upon both parties, it is unnecessary to consider the question, argued at some length in the plaintiff's brief, whether such a contract would be invalid because the defendant would not be bound thereby to take any ice at all. However the case may be when the contract is merely to sell what one may want or desire during a given time, there are strong authorities that a contract to sell what one shall need in his business during a stated time is good. Hickey v. O'Brien, 123 Mich. 611, 82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227. The proposition presented by the request is that, if there was no acceptance according to the terms of the offer, there was no contract. The defendant, as the court finds, claimed to have proved the contract by the testimony of one Semon. The substance of this was that, in conversation with two agents of the plaintiff, they said to him that the plaintiff was going to furnish the defendant ice for the year at the old price, and Semon, who was an officer and agent of the defendant, said "Then it is distinctly understood that I get all the ice I want at $2 a The plaintiff claimed that the defendant's ton," and Wideman, one of the plaintiff's evidence failed to establish such a contract agents, said, "Yes." The plaintiff claimed because, although the jury should find that that the language testified to by Semon did the plaintiff agreed to sell to the defendant not in law amount to a contract, but was a what ice it should need in its business during mere offer, without acceptance, and subject the year at $2 per ton, yet the evidence fail- to revocation at any time. The question preed to show any agreement on the part of the sented by the request was important theredefendant to purchase its ice for that year of fore, and the plaintiff was entitled to have the plaintiff. Relative to this contention, the the jury adequately instructed as to the law plaintiff asked the court to charge the jury bearing upon it. The jury had been instructas follows: "Where one party agrees to sell ed in an earlier part of the charge, already goods to another at a stated price for a year alluded to, that, if there was such a contract or other stated time, and there is no agree as claimed by the defendant, the plaintiff ment on the part of the other party to pur- was bound by it and could not during the chase for the year, or the stated time, the year of its continuance change the price result is not a contract, but a mere offer charged for ice. By the part of the charge on the part of the vendor which may be re- now under consideration they were told, in voked at any time." The court read this re- substance, that it was not necessary to the quest to the jury and responded to it by say-validity of the contract that the other party ing: "Now I say to you, in response to that, to it should have been bound itself for the that such might be a mere offer on the part same period. Where terms for changing the ed by one party to another, those terms must | 31st, notifying him of the increase of price, be explicitly, fully, and unconditionally ac- should have been rejected. It consisted of cepted to effect such change of relations and declarations of the witness that he was a constitute a binding contract. The plaintiff poor man, that the increase of price would was therefore entitled to have its request, or ruin him, that they had a combination, and something equivalent thereto, given to the had him in their power, and others of like jury, and the charge as given cannot be sus- nature, and tended to prejudice the jury tained. against the plaintiff and obtain sympathy for the defendant, while they tended to prove no fact in issue between the parties. They were admitted as a part of the conversation had at the time; but, so far as appears, the entire conversation had no pertinency to the case, although offered to show that the defendant paid the increased price under protest and without waiving the contract; but the conduct and declarations were quite as consistent with the fact that there was no contract to rescind, as that there was one which he was insisting upon being carried out. The defendant by its counterclaim asks only to be allowed the difference between the value of the ice delivered and ice such as should have been delivered under the contract claimed. The court instructed the jury that "it was proper for the defendant, if you find that it has proved the allegations of its answer and counterclaim, to show defects in said ice, and, if you find also that there was no abrogation of the contract on its part made afterwards, it is competent for it to show defects in said ice in mitigation of the demand, and, as has been claimed in this case, where more money has been paid than the ice is worth in an action brought to recover a claimed balance, the defendant may set up a counterclaim and recover for overpayment." Under this charge the jury must have understood that upon the counterclaim the defendant could not only recoup for the defective quality of the ice, in mitigation of plaintiff's damages, but could also recover a judgment against the plaintiff for the amount of any overpayment proved. The jury were thus permitted by the instruction to find a verdict against the plaintiff for damages not claimed in the pleadings. That this instruction was harmful to the plaintiff is apparent from the fact that the verdict against it is just equal to the amount of the overpayment claimed by the defendant with interest. The plaintiff complains justly there fore of this part of the charge. The appeal presents numerous exceptions to the rulings upon evidence. The evidence of Joseph Sternchuss that the defendant's agent, John Semon, told him on one occasion, when he called the witness' attention to the ice, that the plaintiffs were robbing him, and that when they presented their bill some day he would not pay it, was a self-serving declaration, made in the absence of the plaintiff or its agents, and was not proper evidence. The plaintiff asked that it be stricken out, and the motion should have been granted. The testimony of said Semon that he had on different occasions called the at tention of various persons (naming them), some of whom were not called as witnesses, to the condition of the ice, and that he "called the attention of everybody he met in New Haven to it," and that "he didn't do anything else apparently," should have been excluded. The quality of the ice could not be proved by such declarations. The testimony of the same witness as to what was said by him to the plaintiff's agents shortly after he received the letter of March The remaining rulings seem to have been correct, and not harmful to the plaintiff, and require no consideration here. There is error, and a new trial is ordered. The other Judges concur. (81 Conn. 489) BEARDSLEY v. IRVING. (Supreme Court of Errors of Connecticut. Jan. 6, 1909.) 1. TRIAL (§ 202*) — INSTRUCTIONS-DUTY OF COURT. the jury to whatever is necessary and proper to A trial court should call the attention of guide them to a right decision in the particular case. [Ed. Note. For other cases, see Trial, Cent. Dig. § 474; Dec. Dig. § 202.*] 2. TRIAL (§ 207*) - INSTRUCTIONS - SUBJECTMATTER MATTERS AFFECTING CALENDAR. Where it is important whether the day of the month on which a contract was executed was Sunday, the court should instruct the jury whether or not the date in question was Sunday, and not leave it to them to determine that fact from the evidence. [Ed. Note.-For other cases, see Trial, Dec. Dig. § 207.*] 3. EVIDENCE (§ 1*) - "JUDICIAL NOTICE" NATURE AND SCOPE. "Judicial notice" takes the place of proof, and is of equal force, and as a means of establishing facts it is superior to evidence, as it stands for proof, and fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 4, p. 3858.] 4. EVIDENCE (§ 17*)-JUDICIAL NOTICE-TIME. Courts will take judicial notice of what days of the week days of the month occur on, and the hours of sunset and sunrise. Cent. Dig. § 21; Dec. Dig. § 17.*] [Ed. Note. For other cases, see Evidence, 5. EVIDENCE (§ 51*)-JUDICIAL NOTICE-MODE OF ASCERTAINING FACTS. An almanac may be read at a trial to refresh the memory of the court and jury as to the day of the week on which a day of the month occurs. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 72; Dec. Dig. § 51.*] Appeal from Court of Common Pleas, New Haven County; William L. Bennett, Judge. Action by Stanley A. Beardsley against Walter M. Irving. Judgment for plaintiff, and defendant appeals. Reversed. Robert C. Stoddard, for appellant. E. P. Arvine and Albert D. Penney, for appellee. RORABACK, J. This is an action brought to recover damages upon an alleged warranty as to the soundness of a horse. The plaintiff obtained a verdict, and the defendant in his appeal to this court has made several assignments of error relating to the charge of the court and its rulings upon evidence. By his second assignment in error, the defendant claims to have been aggrieved because the court charged as follows: "Now it is necessary that there should be a valid contract, and as you know, and as I charge you, a contract made upon Sunday is not, in this state, a valid contract, and I speak of this in passing. Now, if the 3d of June was Sunday, any agreements made upon that day the day of the week was a controlling fact information upon the point involved, yet this State v. These instructions would not be binding upon the defendant, but, I think, gentlemen, of course, it is for you to say, but I think you will remember that no one in this case has testified that that first agreement was on Sunday, and it is only that you can arrive at the fact that it was Sunday by subtracting three from the tenth that Mr. Irving testified was Sunday. The Beardsleys placed Sunday on the 9th, as I remember thought Sunday was the 9th. Mr. Irving thinks it is the 10th. Of course, if it is the 10th, and these negotiations for the contract were upon the third, the third would be Sunday. But you have first to determine whether Sunday came upon the 9th An application to rectify the appeal, also or 10th, and you have to find from the evi- an assignment of error, because the court dence the main thing is to find from the failed to mark the defendant's proposed findevidence-whether the first negotiations being "proven" or "not proven," have been tween Mr. Beardsley, Sr., and the defend. ant, was upon a week day or upon a Sunday, and, as I say, I do not remember any direct evidence from either of them that it was Sunday, and I think there was evidence as to its being a week day, but that, of course, you must bear in mind and consider." In substance, the jury were told that, if they found that there was such a contract, it was for them to say what day of the month it was made, and then determine from the evidence whether such day was Sunday. This was error. The charge delivered by the trial court should call the attention of 12 men unfamiliar with legal distinctions to whatever is necessary and proper to guide them to a right decision in a particular case. Sturdevant's Appeal from Probate, 71 Conn. 392, 398, 42 Atl. 70. The coincidence of the day of the month with presented. As the points of law which the defendant desired to raise were sufficiently presented in the judge's charge, these questions do not require further discussion. There is error, and a new trial granted. The other Judges concurred. (81 Conn. 442) DOWNEY v. MORIARITY et al. (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. EXECUTORS AND ADMINISTRATORS (§ 307*)— DISTRIBUTION-EFFECT. Where a person as his mother's heir had an interest in five parcels of land left by the mother's intestate father who left three heirs, and two of the parcels were set off to the mother's heirs and the rest to the other heirs of her father, the distribution confirmed his interest in the two parcels set off to his mother's heirs and destroyed his interest in the other ment for plaintiff, and defendants appeal. three. Affirmed. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 307.*] Finlon E. Phelan and John O'Neill, for ap2. MORTGAGES (§ 486*)-FORECLOSURE-JUDG- pellants. Edward F. Cole, for appellee. MENT. A mortgagor was one of five heirs of his BALDWIN, C. J. Bridget Donahue, wife mother who was one of three heirs of an intes of Michael Donahue, died intestate January tate leaving five parcels of land. After his mother's death, he mortgaged all the interest he 6, 1892. She was one of three heirs of Patthen had or ought to have or thereafter might rick Coyle, who had died intestate in 1890, have in the five parcels. Two of the parcels owning five parcels of land in Waterbury. were set off to his mother's heirs and the others to intestate's other heirs. Held, that it was not On February 5, 1892, Thomas Donahue, one error, as against mortgagor's heirs and admin- of her five children and heirs, mortgaged all istratrix, to grant foreclosure on all five parcels, the right, title, and interest which he then since as to the three parcels distributed to had or ought to have or thereafter might have the other heirs of intestate, if the mortgagor had any interest in them, he conveyed the legal in or to these lands to the plaintiff to secure title thereto, and, on failure to fulfill the con- his note of that date for $2,000, payable on dition, the equity of redemption was properly demand with interest. It is not found that foreclosed as against his heirs and estate, and, the deed contained any covenants of title or if he had no interest, the foreclosure could not harm his heirs or estate. warranty. During the following month two [Ed. Note. For other cases, see Mortgages, of these parcels were distributed to the esDec. Dig. § 486.*] 3. LIMITATION OF ACTIONS (§ 167*)-BAR OF DEBT-EFFECT ON SECURITY. While the fact that no interest had been paid on a mortgage note for about 15 years might defeat an action on the note by limitations, it would not bar foreclosure of the mortgage. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 652; Dec. Dig. § 167.*] tate of Bridget Donahue,1 and the others to another of the heirs of Coyle. Michael Donahue thereupon took possession of the two parcels set to his wife's estate, as tenant by the curtesy, and held it until his death on February 5, 1906, a few days after which administration was first taken out on her estate. In July, 1892, Thomas Donahue died, intestate, and one of the defendants was ap 4. PLEADING (8 182*)-FAILURE TO REPLY-pointed administratrix of his estate. Pend ADMISSION OF ALLEGATIONS IN ANSWER. Where no reply is filed, the allegations of the answer are admitted. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 388; Dec. Dig. § 182.*] ing the present action, which was brought in January, 1907, the administratrix of the estate of Bridget Donahue sold the two parcels set to this estate to one Elbin, who there5. EXECUTORS AND ADMINISTRATORS (§ 130*)-upon went into and now holds possession. As possession of land is presumed prima The only defendants are the six children and facie to follow the title, where an intestate had sole heirs of Thomas Donahue and the admina vested, though defeasible, interest, his ad-istratrix of his estate. POSSESSION-NATURE-PRESUMPTIONS. ministratrix will be presumed to be in posses- When Thomas Donahue gave the mortgage, sion for the benefit of creditors and heirs under Gen. St. 1902, § 362, relating to the custody of estates of decedents. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 130.*] he had an interest as an heir of Bridget Donahue, who was an heir of Patrick Coyle, in each of the five parcels which it purported to convey. The distribution of two of them 6. APPEAL AND ERROR (§ 169*)-ASSIGNMENTS to her estate related back to the date of her OF ERROR QUESTIONS NOT RAISED BY decease. Ward v. Ives, 75 Conn. 598, 601, PLEADINGS NOR SETTLED BY JUDGMENT. An assignment of error involving a ques-54 Atl. 730. It confirmed his interest as an tion not raised by the pleadings nor settled by the judgment cannot be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1018; Dec. Dig. § 169.*] heir in two of the parcels mortgaged, subject to any disposition of them which might be legally made in the settlement of her estate, should administration thereon be subsequent 7. MORTGAGES (8 486*) - FORECLOSURE-AC-ly granted. It also destroyed his interest in TIONS SCOPE OF ADJUDICATIONS-INTERESTS In an action to foreclose a mortgage on the mortgagor's defeasible interest in land as his mother's heir, where pending the action his mother's administratrix conveyed part of the land, whether plaintiff could have a lien either on the parcels sold or their proceeds could not be adjudicated; neither the purchaser nor the administratrix being parties. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 486.*] the three others. When this action was commenced, administration on Bridget Donahue's estate had been taken out, but nothing had been done in the settlement either of her or of Thomas Donahue's estate to extinguish or change the nature of the interest in any land 1 The record as certified to this court contained, in the finding of facts, the statement that this distribution was made to Bridget Donahue. The attention of counsel on both sides Appeal from Superior Court, New Haven being called to this, during the argument, they County; Milton A. Shumway, Judge. Foreclosure by Christopher F. Downey against Nellie D. Moriarity and others. Judg filed in this court a stipulation that it was an that the finding should be treated as if it read inadvertent mistake of the trial judge, and as stated above in the opinion. |