The fact that the equity in this real estate might have been used for the necessary support of Mrs. Stevenson during her lifetime in no way strengthens the plaintiff's claim for a lien for the money paid by him in excess of the mortgage. There are no facts alleged or found which will permit a favorable 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. Subrogation is an equity called into existence for the purpose of enabling a party secondarily liable, but who has paid the debt, to reap the benefit of any securities or remedies which the creditors may hold as against the principal debtor, and by use of which the party | paying may thus be made whole. Bispham's consideration of this proposition. Upon genEq. p. 450, § 335. In the present case the plaintiff furnished the $400 to Mrs. Stevenson with which to pay the balance of the mortgage to the Connecticut Savings Bank that she might give him a clear and unincumbered title. The plaintiff obtained no valid title under the deed given him, and was compelled to purchase the two-thirds interest which he now owns from the heirs of James Stevenson. This money was paid for the protection and benefit of those owning this land, and the plaintiff is entitled to be subrogated to the rights and securities of the bank. Regan v. N. Y. & N. E. R. R. Co., 60 Conn. 142, 22 Atl. 503, 25 Am. St. Rep. 306; Dutcher v. Hobby, 86 Ga. 198, 12 S. E. 356, 10 L. R. A. 472, 22 Am. St. Rep. 444; Everston v. Central Bank, 33 Kan. 352, 6 Pac. 605. It is also urged that the plaintiff has a lien, not only for the $400 which was paid to satisfy the mortgage, but for the additional sum of $600 which was paid to Mrs. Stevenson and used in paying her personal expenses. Upon this subject the court has found: On March | 2, 1885, there was paid to the Connecticut Savings Bank upon said mortgage the sum of $GOO, $300 in cash and $300 that was drawn from a deposit book in said bank, which stood in the joint names of the said James and Martha Stevenson. It did not appear in evidence who deposited the money in the bank that stood in the names of Mr. and Mrs. Stevenson. eral principles, the defendant would have the right to defend against this claim of a prior incumbrance upon the ground that he is a bona fide purchaser of the property for a valuable consideration without any notice of the existence of such a claim. The plaintiff in substance replies to this proposition that to entitle himself to this legal protection it should appear that the defendant obtained a legal title, and not a mere semblance of title from one who was ousted of possession. It is not indispensable to protect himself that the defendant should be the purchaser of the legal title. "The rule in equity is that if a defendant has in conscience a right equal to that claimed by the person filing a bill against him, although he is not clothed with a perfect legal title, this circumstance, in his situation as a defendant, renders it improper for a court of equity to compel him to make any discovery, which may hazard his title. In short, courts of equity will not take the least step against an innocent purchaser in such a predicament, and will, on the other hand, allow him to take every advantage which the law gives him; for there is nothing which can attach itself upon his conscience in such a case in favor of an adverse claim." 2 Story, Eq. Jur. p. 883, §§ 1502, 1503. It appears that Robinson made this purchase, paid his money, and obtained this deed at the instance and request of the plaintiff. There is no suggestion that Robinson, when he obtained his A lien may be created when a party indeed, 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 James Stevenson. There was no debt due from them; neither did Mrs. Stevenson have it." 2 Story, Eq. Jur. p. 884, § 1503. The plaintiff's exception to the finding of facts cannot be considered by this court. It MAND. Under Gen. St. 1902, § 802, providing that, if the Supreme Court of Errors shall find error in the rulings of the trial court, it shall reverse the judgment or order a new trial, a reversal because facts claimed to have been proved did not authorize plaintiff in an action triable by a jury to recover did not entitle defendant to a final judgment; plaintiff being entitled to a new trial and an opportunity to present different or additional facts to establish a cause of action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4620; Dec. Dig. 1177.*] On application to correct the mandate sent to each of the judges under Practice Book 1908, p. 279, § 41. Application denied. For opinion on main appeal, see 71 Atl. 364. BALDWIN, C. J. We are now asked to alter our mandate so as to make it, after setting aside the judgment for the plaintiff, remand the cause, with instructions to the superior court to enter judgment for the defendant. The judgment which has been set aside followed the verdict, and it is plain that the facts found by that verdict could not support a judgment for the defendant veredicto non obstante. The request now made ignores two things: The nature of a trial by jury, and the function of an appeal from a judgment rendered on a verdict. The plaintiff had a right to have her cause determined, as to the facts in issue, by the verdict of a jury. This could only be that of a jury which had heard the evidence of those facts, after receiving instructions from a judge who had presided at the trial. It is an ancient feature of the jury system that, when the evidence in a civil cause is so clear for one side or the other that reasonable men cannot differ as to the verdict which ought to be rendered, the judge may require the jury to return that verdict. In so doing, however, they still determine the issues of fact. They are directed to decide the issues in a certain way, because these could not reasonably be decided in any other way, and it is assumed that every juror will desire to give his decision according to the dictates of reason. The appeal to this court recited the facts which the plaintiff claimed that she had established on the trial, and also those which the defendant claimed that it had established. These recitals had no force, except for the purposes of the appeal. They showed that, on the assumption that the plaintiff had proved all she claimed, she had no right of recovery; but they did not show what evidence might be produced on a new trial, be fore a new jury. Should such a trial be claimed, it will be for that jury to determine the issues before it, on the pleadings as then made up, subject only to such directions as may be properly given by the judge then presiding over the court. Gen. St. 1902, § 802, proceeds upon these principles in providing that, "if the Supreme Court of Errors shall find error in the rulings or decisions of the court below, it shall reverse the judgment or order a new trial." The judgment of the superior court was the only one which could be rendered upon the verdict, as returned and accepted, and could not, therefore, be changed into a judgment for the defendant. The error lay deeper-in the refusal to direct a different verdict, or to set aside the verdict as against the evidence. To remedy that, a new trial is the only method known to our law. Leave to file the motion in question was therefore denied. (81 Conn. 572) HARLOW et al. v. PARSONS LUMBER & HARDWARE CO. (Supreme Court of Errors of Connecticut. Jan. 22, 1909.) 1. FRAUDS, STATUTE OF (§ 84*)—AGREEMENTS FOR SALE OF PERSONALTY. An agreement for a sale of lumber for more than $50 to be thereafter delivered, no statute of frauds (Gen. St. 1902, § 1090), and part of which was ever accepted, was within the could be proved in an action for the price only by a memorandum of the agreement in writing, signed by the buyer or its agents. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 157; Dec. Dig. § 84.*] 2. EVIDENCE (8 455*) – PAROL TESTIMONY — MEANING OF TECHNICAL TERMS. Parol evidence was admissible in an action for the price of lumber to show the technical meaning of the words, "when transit car," on the sale slip. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2104, 2105; Dec. Dig. § 455.*] 3. SALES (§ 81*) - SALES SLIPS - CONSTRUCTION-TECHNICAL TERMS. slip covering a sale of a car load of lumber, did not fix any date of delivery; and did not show that delivery should be made on arrival of the car. The words, "when transit car," on a sales [Ed. Note.-For other cases, see Sales, Cent. Dig. § 217; Dec. Dig. § 81.*] 4. SALES (§ 81*) - DELIVERY MADE. -WHEN TO BE [Ed. Note. For other cases, see Sales, Cent. Dig. § 218; Dec. Dig. § 81.*] 5. SALES (§ 182*)-DELIVERY-TIME FOR MAKING-REASONABLE TIME. Ordinarily what is a reasonable time for delivery of goods sold is a question of fact; but, when the circumstances are such that but one conclusion is reasonably possible, the court may assume or declare to the jury that conclusion. [Ed. Note. For other cases, see Sales, Cent. Dig. § 492; Dec. Dig. § 182.*] On appeal in an action for the price of rejected lumber, successfully defended on the ground of failure to deliver within a reasonable time, it will be presumed that the trial court considered the carrier's delay in transporting the lumber in determining that it was not tendered within a reasonable time. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.*] 9. APPEAL AND ERROR (§ 1052*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. Any error in admitting evidence under one defense was harmless where the case was not decided on that defense. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 4175, 4176; Dec. Dig. 1052.*] Appeal from City Court of Hartford, Herbert S. Ballard, Judge. Action by Frederick M. Harlow and others against the Parsons Lumber & Hardware Company. From a judgment for defendant, plaintiffs appeal. Affirmed. The plaintiffs, doing business in Hartford, and the defendant, doing business in Unionville, Conn., by telephone entered into a contract for the sale and purchase of a car load of lumber then in transit by rail from Laurel, Miss., to Wallingford, Conn. The plaintiffs thereupon caused a sales slip and invoice of the lumber to be made out, which read, respectively, as follows: "Harlow, Todd & Co., Hartford, Conn. Wholesale Lumber. Order No. 1409. Date, May 15, 1906. Sold to the Parsons Lubr. & Hardware Co., at Unionville, Ct. Route: When transit car. Terms 12% 15 days. One (1) car 1x4 (34" face) A Sap rift flg. D. & M. at $38.50. Thank you. Harlow Lumber Co., M. P. H." "Harlow Lumber Co., Successor to Harlow, Todd & Co. Wholesale Lumber. Hartford, Conn., Apr. 17, 1906. Sou. Car No. 40290. Consigned to us, Unionville, Ct. Order No. 1409. Terms, 12% 15 ds. Sold to Parsons Lbr. & Hdw. Co., 18.072 ft. 1x4 "A" Sap Rift D. & M. at $38.50, $695.77." These were mailed to and received by the defendant. Afterwards the defendant, the lumber not having arrived, and the plaintiffs being unable. after repeated inquiries, to give definite information as to when it would arrive, wrote the plaintiffs the following let ter: "The Parsons Lumber & Hardware Co. Unionville, Conn., July 10th, 1906. Harlow, Todd & Co., Hartford, Conn.-Gentlemen: Please cancel the order for car No. 40290. We have had our agent here wire to Harlem River and have received word June 28th that there was no account of any such car there. We have been waiting a few days since to see if it would come but as it has not please cancel as before directed, as we will procure it somewhere else. Yours very truly, The Parsons Lumber & Hardware Co." The lumber arrived in Wallingford on the 13th of August, 1906, and the plaintiffs at once offered to forward it to the defendant at Unionville, but the defendant refused to accept it. The plaintiffs then sold the lumber for a less price than the defendant was to have paid. This action is brought to recover the difference. Josiah H. Peck, for appellants. Joseph P. Tuttle, for appellee. THAYER, J. (after stating the facts as above). The complaint alleges that on May 15, 1906, the plaintiffs and the defendant mutually agreed that the plaintiffs should sell to the defendant, and that the defendant should purchase from the plaintiffs, one car load of lumber, consisting of 18,072 feet of yellow pine flooring, for $38.50 per 1,000 feet, said lumber being then in transit and to be delivered by the plaintiffs to the defendant on arrival, and that on the 15th of August following, on the arrival of the lumber, the plaintiffs offered to deliver the same to the defendant, and the defendant refused to accept it. As the complaint thus alleges an agreement for the sale of personal property for upwards of $50 to be thereafter delivered, no part of which was ever accepted, such agreement was within the statute of frauds, and could be proved only by a memorandum thereof in writing signed by the defendant or its agents. Gen. St. 1902, § 1090. For such memorandum the plaintiffs relied upon the sales slip, invoice, and letter of the defendant which appear in the statement of the case. It nowhere in either of these documents expressly appears that the lumber was to be delivered on arrival or within what time it was to be delivered. The sales slip is dated May 15th, the day the contract was made. The invoice is dated April 17th, nearly a month earlier. In the sales slip appear the words "When transit car." The plaintiff insists that these words express the date of delivery, and that such date is the arrival of the lumber in Unionville. Unless they have in the lumber trade a technical meaning different from their ordinary meaning, it is clear that they give no information as to the time when the lumber should be delivered. But the plaintiffs insisting in the trial below, as they insist here, that the words had such technical meaning, the court properly receiv Such a ed 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 custom 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 has 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 deportation it is unnecessary to consider, as livery, the law would imply that it was to that is not a question in this case. 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 arcourse 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. said, therefore, that the court was wrong in Ordinarily what is a reasonable time under the circumstances of a given case is a question of fact for the jury. When the circumstances are such that but one conclusion is reasonably possible, the court may assume or declare to the jury the conclusion which must inevitably be reached. Loomis v. Norman Printers' Supply Co., 81 Conn. 343, 71 Atl. 358. In the present case it was a question of fact to be determined under the evidence, and was so treated in the pleadings. In the case of Soper v. Tyler, 73 Conn. 660, 662, 49 Atl. 18, 19, it is said that "what was such reasonable time was a question of fact for the jury." In that case the question being considered was whether an order to ship grain was given within a reasonable time. In the present case the first defense of the answer sets up in substance that the delivery was not tendered within a reasonable time, the plaintiffs joined issue on that question of fact, and the court has found the issues in favor of the defendant. There is nothing in the case as it comes before us from which we can see that the court adopted any wrong the conclusion mentioned. Two witnesses called by the defendant were asked to relate what they heard of a telephone conversation between the parties to the suit at the time the contract was made. Their answers tended to show an agreement on the part of the plaintiffs to deand was admissible in support of the allegaliver the lumber in ten days or two weeks, tions of the second defense upon which issues of fact were joined. The evidence was objected to as tending to vary the terms of the written memorandum. The objection was overruled, upon what ground is not stated. As the case was decided upon the ground that the memorandum did not support the contract alleged in the complaint, and that the lumber was not tendered within a reasonable time, and was not decided upon the grounds stated in the second defense, the plaintiff can have received no harm from the reception of the evidence, and the ruling of the court in admitting it affords no ground for a new trial. There is no error. The other Judges concur. WALKER, V. C. On April 18, 1906, William Johnston, of Trenton, N. J., filed a pe HARRIS v. HIBBARD et al. (Court of Chancery of New Jersey. Dec. 14, tition in this cause, in which he averred that on October 31, 1899, he recovered against 1908.) 1. PARTITION (8 111*)-PARTITION DECREE-William S. Harris in the Supreme Court of MODIFICATION-SALE-PROCEEDS. Where a decree for the sale of land in partition adjudged that a deed to a receiver in supplementary proceedings, which deed contained no words of inheritance or succession, conveyed only an undivided half interest in a life estate instead of the fee, the land having been sold under the decree, a subsequent order modifying the decree, so as to declare that the receiver took an undivided half of the fee subject to the inchoate right of dower of the grantor's widow, constituted in effect a reformation of the deed, so as to entitle the receiver to a share of the proceeds of sale proportioned to a fee interest, instead of merely a life estate. the state of New York a judgment for $1,533.91, debt and costs, and caused an execution to be issued thereon, and that afterwards the defendant Omri F. Hibbard was, by the Supreme Court of New York, appointed receiver in supplementary proceedings in aid of the execution which was issued on that judgment; that on October 25, 1900, the defendant William S. Harris conveyed, subject to the inchoate right of dower of his wife, the defendant Elizabeth J. Harris, all his right, title, and interest in and to a certain lot of land and premises in the city of Trenton; that on December 11, 1901, Charles [Ed. Note.-For other cases, see Partition, Cent. Dig. § 402; Dec. Dig. § 111.*] 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 lands and premises of which William S. Harris conveyed his interest to Mr. Hibbard as receiver; that on July 2, 1902, Mr. Hibbard, as receiver, filed a petition in this cause, and thenceforward participated therein for the purpose of protecting the rights of the petitioner, Mr. Johnston, in the premises conveyed; that by the final decree in this cause it was adjudged that the complainant, Charles F. Harris, and the defendant Omri F. Hibbard, the receiver, were each seised of, in and to the fee, and entitled to, the undivided [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1173, 1175; Dec. Dig. § 409.*] 3. PARTITION (§ 111*)-SALE OF LAND-PRO-one-half part of the premises above mentionCEEDS DISTRIBUTION-ATTACHMENT. A judgment debtor, having been directed in supplementary proceedings in New York to convey to his receiver an undivided interest in certain real estate in New Jersey, executed a deed, but before it was delivered the debtor's wife, through a trustee, instituted a suit against him in New Jersey in which the land was attached. Held, that though the trustee in such action might be guilty of inexcusable laches in proceeding to establish his claim, and though it had been held unfounded in contempt proceedings in New York, the proceeds of the sale of the property in partition could not be distributed without the presence of the trustee as a party. [Ed. Note. For other cases, see Partition, Cent. Dig. § 402; Dec. Dig. § 111.*] 4. RECEIVERS (§ 205*)—FOREIGN RECEIVERS BONDS. ed, and that the undivided one-half part thereof to which the receiver was entitled was subject to, the inchoate right of dower of Elizabeth J. Harris, wife of William S. Harris; that on June 23, 1902, the premises were sold by virtue of the decree of this court and brought the sum of $2,150, of which sum, after deducting costs and expenses, one half was paid to Charles F. Harris and the other half was deposited in this court, where it yet remains, waiting the final order of this court; that the order requiring the sum of $978.87, being one-half of the net proceeds of such sale, to be deposited in this court, was made upon the strength of the representation that before the sale in partition the right, title, and interest of the defendant William S. Harris was on October 24, 1900, attached by virtue of a writ of attachment out of the Supreme Court of this state at the suit of Eugene M. Coffield, trustee, against William S. Harris; that, beyond causing the interest of Mr. Harris in the premises to be attached, neither Mr. Coffield as trustee nor any other person for him or on his behalf in any way or manner prosecuted the attachment suit, but, on the contrary, has been and is in such laches as entirely to lose his lien under the attachment; that the conveyance by William S. Harris to Omri F. Hibbard, as receiver, was for the benefit of the petitioner 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 |