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court it was found that the plaintiff is the any authority express or implied to make a owner in fee simple of an undivided two-contract or create a right for the lien upon thirds part of said premises subject to said the realty which they owned. Generally a mortgage, and that the remaining undivided lien can only be created with the owner's conone-third part of said land at the time of his sent; that is, by a contract express or implied death was owned in fee simple by said Samu- with the owner of the property or with some el Robinson, deceased, subject to the mort- one by him duly authorized, or without his gage of $400. The ground on which the court consent by the operation of some positive below proceeded was that the plaintiff was rule of law, as by statute. 25 Cyc. p. 663, subrogated to the rights of the Connecticut 664. Savings Bank to the extent of $400. Subro- The fact that the equity in this real estate gation is an equity called into existence for might have been used for the necessary sup-' the purpose of enabling a party secondarily port of Mrs. Stevenson during her lifetime liable, but who has paid the debt, to reap the in no way strengthens the plaintiff's claim benefit of any securities or remedies which for a lien for the money paid by him in exthe creditors may hold as against the princess of the mortgage. There are no facts alcipal debtor, and use of which the party or found which will permit a favorable paying may thus be made whole. Bispham's consideration of this proposition. Upon genEq. p. 450, 335. In the present case the eral principles, the defendant would have the plaintiff furnished the $400 to Mrs. Steven- right to defend against this claim of a prior son with which to pay the balance of the incumbrance upon the ground that he is a mortgage to the Connecticut Savings Bank bona fide purchaser of the property for a that she might give him a clear and unincum- valuable consideration without any notice of bered title. The plaintiff obtained no valid the existence of such a claim. The plaintiff title under the deed given him, and was com- in substance replies to this proposition that pelled to purchase the two-thirds interest to entitle himself to this legal protection it which he now owns from the heirs of James should appear that the defendant obtained a Stevenson. This money was paid for the legal title, and not a mere semblance of title protection and benefit of those owning this from one who was ousted of possession. It land, and the plaintiff is entitled to be subro- is not indispensable to protect himself that ga ted to the rights and securities of the bank. the defendant should be the purchaser of the Regan v. N. Y. & N. E. R. R. Co., 60 Conn. legal title. "The rule in equity is that if 142, 22 Atl. 503, 25 Am. St. Rep. 306; Dutch- defendant has in conscience a right equal to er v. Hobby, 86 Ga. 198, 12 S. E. 356, 10 L. that claimed by the person filing a bill against R. A. 472, 22 Am. St. Rep. 444; Everston v. him, although he is not clothed with a perfect Central Bank, 33 Kan. 352, 6 Pac. 605. legal title, this circumstance, in his situation

It is also urged that the plaintiff has a lien, as a defendant, renders it improper for a not only for the $400 which was paid to satisfy court of equity to compel him to make any the mortgage, but for the additional sum of discovery, which may hazard his title. In $600 which was paid to Mrs. Stevenson and short, courts of equity will not take the least used in paying her personal expenses. Upon step against an innocent purchaser in such a this subject the court has found : On March predicament, and will, on the other hand, al2, 1885, there was paid to the Connecticut Sav- low him to take every advantage which the ings Bank upon said mortgage the sum of law gives him; for there is nothing which can $600, $300 in cash and $300 that was drawn attach itself upon his conscience in such a from a deposit book in said bank, which case in favor of an adverse claim." 2 Story, stood in the joint names of the said James and Eq. Jur. p. 883, $g 1502, 1503. It appears that Martha Stevenson. It did not appear in evi- Robinson made this purchase, paid bis mondence who deposited the money in the bank ey, and obtained this deed at the instance that stood in the names of Mr. and Mrs. and request of the plaintiff. There is no sug. Stevenson.

gestion that Robinson, when he obtained his Alien may be created when a party in deed, had any knowledge of the existence of making expenditures upon real estate has act. a claim for money paid upon this mortgage ed in good faith with an honest but mistak- or of an incumbrance which had been fully en assumption that he was the owner. In discharged of record seven years before he such cases the lienor's rights must necessarily was induced by the plaintiff to part with his be limited to such disbursements as were money in obtaining his title. "If a plaintiff beneficial to the property. This implies that comes into equity, seeking relief upon a legal the debt is due from the person as against title, against a bona fide purchaser of an whom the pledge is claimed, unless the own- equitable title, if he is entitled to relief in er by some express act or implication pledged such a case (which is perhaps doubtful), still or authorized another to pledge his property he must obtain it upon the strength of his for the debt of another. In 1890, when Mrs. own case, and his own evidence; and he is Stevenson gave the warranty deed to the not entitled to extract from the conscience of plaintiff, the owners of the property which the innocent defendant any proofs to support she attempted to convey were the heirs of it.” 2 Story, Eq. Jur. p. 884, $ 1503. James Stevenson. There was no debt due The plaintiff's exception to the finding of does not appear that there was any motion to fore a new jury. Should such a trial be correct, or any assignment in the reasons of claimed, it will be for that jury to determine appeal upon this ground. Practice Book 1908, the issues before it, on the pleadings as then p. 268, $ 9.

made up, subject only to such directions as There is no error. The other Judges con- may be properly given by the judge then pre curred.

siding over the court. Gen. St. 1902, § 802, (81 Conn. 578)

proceeds upon these pri ples in oviding FAY V. HARTFORD & S. ST. RY. CO.

that, “if the Supreme Court of Errors shall (Supreme Court of Errors of Connecticut. Jan.

find error in the rulings or decisions of the 22, 1909.)

court below, it shall reverse the judgment or

order a new trial." APPEAL AND ERROB (8 1177*)-REVERSAL-RE

The judgment of the HAND.

superior court was the only one which could Under Gen. St. 1902, § 802, providing be rendered upon the verdict, as returned that, if the Supreme Court of Errors shall find and accepted, and could not, therefore, be error in the rulings of the trial court, it shall reverse the judgment or order a new trial, a re- changed into a judgment for the defendant. versal because facts claimed to have been prov- The error lay deeper-in the refusal to direct ed did not authorize plaintiff in an action

a different verdict, or to set aside the verdict triable by a jury to recover did not entitle defendant to a final judgment; plaintiff being

as against the evidence. To remedy that, a entitled to a new trial and an opportunity to

new trial is the only method known to our present different or additional facts to estab- law. lish a cause of action.

Leave to file the motion in question was [Ed. Note.-For other cases, see Appeal and

therefore denied. Error, Cent. Dig. 88 4597-4620; Dec. Dig. 8 1177.*] On application to correct the mandate sent

(81 Conn. 572) to each of the judges under Practice Book 1908, p. 279, § 41. Application denied.


HARDWARE CO. For opinion on main appeal, see 71 Atl. 364.

(Supreme Court of Errors of Connecticut. Jan. BALDWIN, C. J. We are now asked to al

22, 1909.) ter our mandate so as to make it, after set- 1. Frauds, STATUTE OF ($ 84*)—AGREEMENTS ting aside the judgment for the plaintiff, re- FOR SALE OF PERSONALTY. mand the cause, with instructions to the su- An agreement for a sale of lumber for perior court to enter judgment for the de- more than $50 to be thereafter delivered, no fendant. The judgment which has been set statute of frauds (Gen. St. 1902, 8 1090), and

part of which was ever accepted, was within the aside followed the verdict, and it is plain could be proved in an action for the price only that the facts found by that verdict could not by a memorandum of the agreement in writing, support a judgment for the defendant vere signed by the buyer or its agents. dicto non obstante. The request now made

(Ed. Note.-For other cases, see Frauds, Statignores two things: The nature of a trial by ute of, Cent. Dig. 8 157; Dec. Dig. $ 84.*) jury, and the function of an appeal from a 2. EVIDENCE (8_455*) — PAROL TESTIMONY Judgment rendered on a verdict.


Parol evidence was admissible in an action The plaintiff had a right to have her cause for the price of lumber to show the technical determined, as to the facts in issue, by the meaning of the words, “when transit car," on verdict of a jury. This could only be that the sale slip. of a jury which had heard the evidence of (Ed. Note.-For other cases, see Evidence, those facts, after receiving instructions from Cent. Dig. $$ 2104, 2105; Dec. Dig. $ 455.*] a judge who had presided at the trial. It is 3. Sales (8 81*) - SALES SLIPS — CONSTRUCan ancient feature of the jury system that, TION-TECIINICAL TERMS. when the evidence in a civil cause is so clear slip covering a 'sale of a car load of lumber, did

The words, “when transit car," on a sales for one side or the other that reasonable men

not fix any date of delivery; and did not show cannot differ as to the verdict which ught that delivery should be made on arrival of the to be rendered, the judge may require the ju- car. ry to return that verdict. In so doing, how- [Ed. Note. For other cases, see Sales, Cent, ever, they still determine the issues of fact. Dig. $ 217; Dec. Dig. $ 81.*] They are directed to decide the issues in a 4. Sales (8 81*) — DELIVERY - WHEN TO BE certain way, because these could not reasona- MADE. bly be decided in any other way, and it is as

Where parties to a contract of sale do not sumed that every juror will desire to give his plies that it is to be made within a reasonable

agrce upon the date of delivery, the law imdecision according to the dictates of reason. time.

The appeal to this court recited the facts (Ed. Note.-For other cases, see Sales, Cent. which the plaintiff claimed that she had es. Dig. § 218; Dec. Dig. $ 81.*] tablished on the trial, and also those which 5. Sales ($ 182*)-DELIVERY_TIME FOR MAK• the defendant claimed that it had establish- ING-REASONABLE TIME. ed. These recitals had no force, except for Ordinarily what is a reasonable time for the purposes of the appeal. They showed delivery of goods sold is a question of fact; but, that, on the assumption that the plaintiff had conclusion is reasonably possible, the court may

when the circumstances are such that but one proved all she claimed, she had no right of assume or declare to the jury that conclusion. recovery ; but they did not show what evi

[Ed. Note. For other cases, see Sales, Cent. dence might be produced on a new trial, be- | Dig. § 492; Dec. Dig. § 182.*] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Inderes 6. SALES (8 182*)--ACTION FOR PRICE-JURY , ter: "The Parsons Lumber & Hardware Co. QUESTION.

Unionville, Conn., July 10th, 1906. Yarlow, In an action for the price of rejected lumber, whether the lumber was delivered within a

Todd & Co., Hartford, Conn.-Gentlemen: reasonable time held, under the evidence, a jury Please cancel the order for car No. 40290. question.

We have had our agent here wire to Har(Ed. Note. For other cases, see Sales, Cent. lem River and have received word June 28th Dig. $ 492; Dec. Dig. & 182.*)

that there was no account of any such car 7. SALES (172*)—DELIVERY_TIME-REASON-there. We have been waiting a few days ABLENESS-EVIDENCE.

Delay of the carrier in transporting goods since to see if it would come but as it has is an important circumstance to be considered not please cancel as before directed, as we in determining whether delivery was made with will procure it somewhere else. Yours very in a reasonable time.

[Ed. Note. For other cases, see Sales, Cent. truly, The Parsons Lumber & Hardware Co.Dig. $ 428; Dec. Dig. § 172.*]

The lumber arrived in Wallingford on the 8. APPEAL AND ERROR (8 909*) - REVIEW

13th of August, 1906, and the plaintiffs at PRESUMPTIONS.

once offered to forward it to the defendant On appeal in an action for the price of re- at Unionville, but the defendant refused to jected lumber, successfully defended on the ground of failure to deliver within a reasonable accept it. The plaintiffs then sold the lumber time, it will be presumed that the trial court for a' less price than the defendant was to considered the carrier's delay in transporting have paid. This action is brought to recover the lumber in determining that it was not ten- the difference. dered within a reasonable time. [Ed. Note. For other cases, see Appeal and

Josiah H. Peck, for appellants. Joseph P. Error, Cent. Dig. 8 3675; Dec. Dig. $ 909.*] Tuttle, for appellee, 9. APPEAL AND ERROR ($ 1052*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

THAYER, J. (after stating the facts as Any error in admitting evidence under one above). The complaint alleges that on May defense was harmless where the case was not 15, 1906, the plaintiffs and the defendant decided on that defense.

[Ed. Note. For other cases, see Appeal and mutually agreed that the plaintiffs should Error. Cent. Dig. 88 4175, 4176; Dec. Dig. & sell to the defendant, and that the defendant 1052.*]

should purchase from the plaintiffs, one car

load of lumber, consisting of 18,072 feet of Appeal from City Court of Hartford, Her- yellow pine flooring, for $38.50 per 1,000 feet, bert S. Ballard, Judge. Action by Frederick M. Harlow and others delivered by the plaintiffs to the defendant

said lumber being then in transit and to be against the Parsons Lumber & Hardware

on arrival, and that on the 15th of August Company. From a judgment for defendant, following, on the arrival of the lumber, the plaintiffs appeal. Affirmed.

plaintiffs offered to deliver the same to the The plaintiffs, doing business in Hartford, defendant, and the defendant refused to acand the defendant, doing business in Union- cept it. As the complaint thus alleges an ville, Conn., by telephone entered into a con- agreement for the sale of personal property tract for the sale and purchase of à car load for upwards of $50 to be thereafter deliverof lumber then in transit by rail from Laurel, ed, no part of which was ever accepted, such Miss., to Wallingford, Conn. The plaintiffs agreement was within the statute of frauds, thereupon caused a sales slip and invoice of and could be proved only by a memorandum the lumber to be made out, which read, re- thereof in writing signed by the defendant spectively, as follows:

or its agents. Gen. St. 1902, § 1090. “Harlow, Todd & Co., Hartford, Conn. For such memorandum the plaintiffs relied Wholesale Lumber. Order No. 1409. Date, upon the sales slip, invoice, and letter of the May 15, 1906. Sold to the Parsons Lubr. & defendant which appear in the statement of Hardware Co., at Unionville, Ct. Route: the case. It nowhere in either of these docuWhen transit car. Terms 112% 15 days. ments expressly appears that the lumber was One (1) car 1x4 (314" face) A Sap rift fig. to be delivered on arrival or within what D. & M. at $38.50.

Thank you.

Harlow time it was to be delivered. The sales slip Lumber Co., M. P. H."

is dated May 15th, the day the contract was "Harlow Lumber Co., Successor to Harlow, made. The invoice is dated April 17th, nearTodd & Co. Wholesale Lumber. Hartford, ly a month earlier. In the sales slip appear Conn., Apr. 17, 1906. Sou. Car No. 40290. the words "When transit car.” The plainConsigned to us, Unionville, Ct. Order No. tiff insists that these words express the date 1409. Terms, 112% 15 ds. Sold to Parsons of delivery, and that such date is the arrival Lbr. & Hdw. Co., 18.072 ft. 1x4 “A” Sap of the lumber in Unionville. Unless they Rift D. & M. at $38.50, $695.77."

have in the lumber trade a technical meaning These were mailed to and received by the different from their ordinary meaning, it is defendant. Afterwards the defendant, the clear that they give no information as to the lumber not having arrived, and the plaintiffs time when the lumber should be delivered. being unable. after repeated inquiries, to But the plaintiffs insisting in the trial below, give definite information as to when it would as they insist here, that the words had such arrive, wrote the plaintiffs the following let- I technical meaning, the court properly received parol evidence to show what that meaning, conclusions of law in making the determina is. Hatch v. Douglas, 48 Conn. 116, 128, 129, tion. If, therefore, the plaintiffs proved a 40 Am. Rep. 154; Soper •v. Tyler, 77 Conn. contract to deliver within a reasonable time, 104, 106, 58 Atl. 699. From such evidence they failed to prove performance on their the court found that such sales slips are part. customarily used in the lumber trade, and One of the conclusions reached by the court that it is the ustom to fill in the blank after was that the unexplained failure on the part the printed word “when” with the date of of the railroad to transport the lumber shipment; but that, when filled as this was promptly did not excuse the plaintiffs' failwith the words "transit car," they mean ure to make delivery either within the usual that the lumber bas left the mill and is in time required for transportation or within a transit. The words, therefore, do not fix reasonable time. Whether it would excuse the date of delivery. If the parties to the nondelivery within the usual time of transcontract did not agree upon the date of de- portation it is unnecessary to consider, as livery, the law would imply that it was to that is not a question in this case. Such a be within a reasonable time. Soper v. Tyler, delay would be an important circumstance 73 Conn. 660, 661, 49 Atl. 18, 19. But this is to be considered in determining whether the not the contract alleged in the complaint, and delivery was made within a reasonable time. the memorandum relied upon fails to prove

Delays of that character will, in the ordinary the special contract alleged to deliver on ar

course of things, occur and are to be considrival. The court correctly ruled, therefore, ered in determining the reasonableness or unthat the memorandum is not sufficient to reasonableness of a party's conduct. We

must assume that the court took into conprove the contract alleged.

If the memorandum is construed as requir-sideration the fact of the railroad's lack of ing the delivery to be within a reasonable promptness in arriving at the conclusion that time, the plaintiffs claim that this is not a the lumber was not tendered to the defendquestion of primary fact,” but a conclusion ant within a reasonable time. It cannot be which is, in such cases, a question of law. the conclusion mentioned.

said, therefore, that the court was wrong in Ordinarily what is a reasonable time under

Two witnesses called by the defendant the circumstances of a given case is a ques

were asked to relate what they heard of a tion of fact for the jury. When the circumstances are such that but one conclusion is to the suit at the time the contract was

telephone conversation between the parties reasonably possible, the court may assume or

made. Their answers tended to show an declare to the jury the conclusion which must agreement on the part of the plaintiffs to deinevitably be reached. Loomis V. Norman

liver the lumber in ten days or two weeks, Printers' Supply Co., 81 Conn. 343, 71 Atl. and was admissible in support of the allega358. In the present case it was a question tions of the second defense upon which issues of fact to be determined under the evidence, of fact were joined. The evidence was oband was so treated in the pleadings. In the

jected to as tending to vary the terms of the case of Soper v. Tyler, 73 Conn. 660, 662, 49 written memorandum. The objection was Atl. 18, 19, it is said that “what was such overruled, upon what ground is not stated. reasonable time was a question of fact for as the case was decided upon the ground the jury.” In that case the question being that the memorandum did not support the considered was whether an order to ship contract alleged in the complaint, and that grain was given within a reasorable time. In the lumber was not tendered within a rea. the present case the first defeuse of the an- sonable time, and was not decided upon the swer sets up in substance that the delivery grounds stated in the second defense, the was not tendered within a reasonable time, plaintiff can have received no harm from the the plaintiffs joined issue on that question reception of the evidence, and the ruling of of fact, and the court has found the issues the court in admitting it affords no ground in favor of the defendant. There is nothing for a new trial. in the case as it comes before us from which There is no error. The other Judges conwe can see that the court adopted any wrong cur.

WALKER, V. C. On April 18, 1906, WilHARRIS V. HIBBARD et al.

liam Johnston, of Trenton, N. J., filed a pe(Court of Chancery of New Jersey. Dec. 14, tition in this cause, in which he averred that 1908.)

on October 31, 1899, he recovered against 1. PARTITION (8 111*)-PARTITION DECREE

William S. Harris in the Supreme Court of MODIFICATION-SALE-PROCEEDS.

the state of New York a judgment for $1,Where a decree for the sale of land in par- 533.91, debt and costs, and caused an executition adjudged that a deed to a receiver in sup- tion to be issued thereon, and that afterwards plementary proceedings, which deed contained no words of inheritance or succession, conveyed the defendant Omri F. Hibbard was, by the only an undivided half interest in a life estate Supreme Court of New York, appointed reinstead of the fee, the land having been sold ceiver in supplementary proceedings in aid under the decree, a subsequent order modifying of the execution which was issued on that the decree, so as to declare that the receiver took an undivided balf of the fee subject to the judgment; that on October 25, 1900, the deinchoate right of dower of the grantor's widow, fendant William S. Harris conveyed, subconstituted in effect a reformation of the deed, ject to the inchoate right of dower of his so as to entitle the receiver to a share of the wife, the defendant Elizabeth J. Harris, all proceeds of sale proportioned to a fee interest, his right, title, and interest in and to a cerinstead of merely a life estate.

[Ed. Note.-For other cases, see Partition, tain lot of land and premises in the city of Cent. Dig. $ 402; Dec. Dig. & 111.*)

Trenton; that on December 11, 1901, Charles 2. EXECUTION ($ 409*)—SUPPLEMENTARY PRO- F. Harris, only brother of William S. Harris, CEEDINGS-PROPERTY IN FOREIGN JURISDIC filed a bill for the partition of the same TION.

lands and premises of which William S. HarA foreign receiver in supplementary pro- ris conveyed his interest to Mr. Hibbard as ceedings appointed at the instance of the creditor was entitled to possession of a fund arising receiver; that on July 2, 1902, Mr. Hibbard, from a sale of property in New Jersey, a part as receiver, filed a petition in this cause, and of whicb had been conveyed to the receiver un- thenceforward participated therein for the der direction of the court by which he was appointed, as between the judgment creditor and purpose of protecting the rights of the peti. his attorney claiming a lien on the fund for fees tioner, Mr. Johnston, in the premises conveyand the receiver, the fund to be administered ed; that by the final decree in this cause it under the direction of the court by which the was adjudged that the complainant, Charles receiver was appointed.

F. Harris, and the defendant Omri F. Hib[Ed. Note.-For other cases, see Execution, Cent. Dig. 88 1173, 1175; Dec. Dig. & 409.*i bard, the receiver, were each seised of, in and

to the fee, and entitled to, the undivided 3. PARTITION (8 111*)-SALE OF LAND-PBO- one-half part of the premises above mentionCEEDS–DISTRIBUTION-ATTACHMENT.

A judgment debtor, having been directed ed, and that the undivided one-half part in supplementary proceedings in New York to thereof to which the receiver was entitled convey to his receiver an undivided interest in certain real estate in New Jersey, executed a

was subject to the inchoate right of dower of deed, but before it was delivered the debtor's Elizabeth J. Harris, wife of William S. Har. wife, through a trustee, instituted a suit against ris; that on June 23, 1902, the premises were him in New Jersey in which the land was at sold by virtue of the decree of this court and tached. Held, that though the trustee in such brought the sum of $2,150, of which sum, action might be guilty of inexcusable laches in proceeding to establish his claim, and though it after deducting costs and expenses, one half had been held unfounded in contempt proceed was paid to Charles F. Harris and the othings in New York, the proceeds of the sale of er half was deposited in this court, where it the property in partition could not be distribut- yet remains, waiting the final order of this ed without the presence of the trustee as a party.

court; that the order requiring the sum of [Ed. Note.--For other cases, see Partition, $978.87, being one-half of the net proceeds of Cent. Dig. $ 402; Dec. Dig. $ 111.*]

such sale, to be deposited in this court, was 4. RECEIVERS (8205*)-FOREIGN RECEIVERS— made upon the strength of the representation BONDS.

that before the sale in partition the right, Where a foreign receiver executed a bond title, and interest of the defendant William of $200 in the jurisdiction of his appointment, s. Harris was on October 24, 1900, attached and thereafter became entitled to receive a sum approximating $1,000 from the sale of property by virtue of a writ of attachment out of the in New Jersey, he should be required to give à Supreme Court of this state at the suit of new bond in New Jersey for at least $2,000. Eugene M. Coffield, trustee, against William

[Ed. Note.--For_other cases, see Receivers, S. Harris; that, beyond causing the interest Cent. Dig. $ 409; Dec. Dig. § 205.*]

of Mr. Harris in the premises to be attachAction by Charles F. Harris against Omri ed, neither Mr. Coffield as trustee nor any F. Hibbard, as receiver, and others.

other person for him or on his behalf in any

On application for the payment of moneys in way or manner prosecuted the attachment court. Application for present distribution suit, but, on the contrary, has been and is in denied.

such laches as entirely to lose his lien under

the attachment; that the conveyance by WilSamuel D. Oliphant, Jr., for petitioner liam S. Harris to Omri F. Hibbard, as reWalter I. McCoy. Samuel C. Kulp, for pe-ceiver, was for the benefit of the petitioner titioner William Johnston.

William Johnston and that the sum so de *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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