this fact was clearly brought out. It is in- corporation shortly after its after its formation. conceivable that the jury, after their instruc- Facts found, and judgment rendered for the tions, or, for that matter, without them, plaintiff for $2,111, and appeal by the decould have been possessed of the notion that fendant. No error on either appeal. the contractors could be regarded as having been unlawfully prevented from continuing in the execution of the contract, if they had already voluntarily abandoned the work. If the defendants established either one of their two defenses and the corresponding counterclaim, the verdict in their behalf was properly rendered. The court, therefore, could not grant the motion for a new trial, unless it was of the opinion that the Jury could not have reasonably come to the conclusion, upon the evidence, that one of them was supported by proof. We cannot say that the court erred in not arriving at that opinion. There is no error. The other Judges concurred. BALDWIN v. WOLFF. Edward H. Rogers and Frank Kenna, for appellant. Edward A. Harriman, for appellee. BALDWIN, C. J. the owner of a retail millinery business, gave The defendant, being a quarter interest in it to her stepson, in the business, under the name of J. Halper Charles J. Halper. They became copartners & Co., and on December 11, 1905, the firm (her interest being three times as much as his) owned a stock in trade worth over $9, 000, and owed $2,000 to one Max Abrahammer. He agreed with the copartners that the copartnership should be converted into a corporation with a capital stock of 420 shares of the par value of $25 each; each of the three to subscribe for 140 shares. Mrs. Wolff and Mr. Halper, as copartners, were to transfer their stock in trade to the corporation (Supreme Court of Errors of Connecticut. Dec. at an agreed valuation of $7,000; Abraham 17, 1909.) 1. CORPORATIONS (§ 361*)-LIABILITY OF DIRECTOR-EVIDENCE. In an action by a trustee in bankruptcy against a director of the bankrupt corporation for fraudulent withdrawal of funds of the corporation, evidence held to support a recovery by the trustee. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1506; Dec. Dig. § 361.*] 2. CORPORATIONS (8 354*)-ORGANIZATIONRECITALS IN CERTIFICATE ESTOPPEL. A director of a corporation, having stated in the certificate of organization that H.'s shares of stock had been fully paid up, could not assert the contrary against those becoming creditors of the corporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1496; Dec. Dig. § 354.*] 3. CORPORATIONS (§ 333*)-LIABILITY OF DIRECTOR-CONSTRUCTIVE FRAUD. A director occupies a fiduciary relation to creditors, and, when he knowingly takes money from the treasury not belonging to him, he is guilty of constructive fraud. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1451; Dec. Dig. § 333.*1 4. CORPORATIONS (8_364*)-LIABILITY OF DI RECTOR-ACTION-PLEADING ISSUES. Where a trustee in bankruptcy of a corporation sued a director averring fraudulent withdrawal of certain money from the treasury, he could recover only the sum withdrawn and could not recover on an indirect accountability of the director, as a member of a copartnership, by an agreement with the incorporators taking over the assets of the copartnership. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 15072; Dec. Dig. § 364.*] Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge. Action by Alfred C. Baldwin, a trustee in bankruptcy, against Jennie H. Wolff, to recover the sum of $3,500 alleged to have been fraudulently withdrawn by the defendant, without consideration, from the assets of a mer was to advance $2,000, to retire and discharge the partnership liabilities; and the corporation was to receive the stock in trade at the valuation of $9,000 in payment for so much of the capital stock of the corfor so much of the capital stock of the corporation as should not be paid up in cash. Thereupon the subscriptions were made as agreed, and a corporation organized under the joint-stock incorporation laws of this state by the name of the "Samuel Halper Company," to which J. Halper & Co. transferred their stock in trade, and Abrahammer paid $1,572.39. He also then, discharged the debt of $2,000 which the firm owed him. Of the $1,572.39, $1,500 was the remainder of his stock subscription, over and above the firm indebtedness to him of $2,000 so discharged; and $72.39 represented a third interest in certain firm assets which had not been taken into account when the agreement to form a corporation was made. The three shareholders filed a certificate of organization, stating that $3,500 has been paid up in cash, and $7,000 in property other than cash, and that $25 had been paid upon each of the 420 shares subscribed for. Each was a director, and all signed the certificate. On the record book of the corporation was an entry, also signed by all three, as directors, that its property consisted of a stock of millinery and merchandise, book accounts, and furniture and fixtures purchased from J. Halper & Co., "the value at which said property was received being $7,000 and the actual value of which is more than $7,000." It is evident that the practical result of the whole transaction was to make each of the three the apparent owner of 140 shares of the full-paid capital stock of the corporation, and to make the corporation owner of a stock in trade worth over $9,000, and I drew only the sum for which judgment was cash to the amount of over $1,500. As be- rendered against her. No charge of indirect tween Mrs. Wolff and Mr. Halper, she had accountability, as a member of a copartnerpaid $1,750 for his benefit; this being the dif- ship, by reason of the agreement between ference between one-quarter of $7,000 (that the incorporators, or anything done under it, is, $1,750), which was the value of his inter- is contained in the pleadings. Had it been, est in the partnership, and the par value of no doubt the court would have ordered her his 140 shares (that is, $3,500). A few days copartner to be cited in; and it may well after the incorporation, he, as treasurer of be that in such a case other facts, not now the Samuel Halper Company, paid her, presented upon the record, would have apfrom its funds (as she well knew), $1,917.39. peared, which would have been material to Of this $167.39 was for her three-quarters the determination of such a claim. interest in certain assets of the firm that had not been taken into account when the agreement to incorporate was made. The balance (that is, $1,750) she claimed as the difference between the par value of her shares (that is, $3,500) and her three-fourths interest in the stock in trade, appraised at $7,000 net. This was an unwarranted attempt to adjust the equities between the former partners by the use of corporate funds. The agreed basis of incorporation was the acquisition of the stock in trade of a going concern at a fixed valuation, in exchange for shares of stock. It had been in fact acquired in that manner. Mrs. Wolff, having stated in the certificate of organization that Charles J. Halper's shares of the corporate stock of the company had been fully paid up, could not, as against those who might become creditors of the corporation, assert that those shares had not been so paid up. Canfield v. Gregory, 66 Conn. 9, 22, 33 Atl. 536. The plaintiff, as trustee in bankruptcy, represents such creditors. He was entitled to recover for the $1,750 so paid to the defendant without consideration. He alleged that she withdrew the money fraudulently. The court does not, in the special finding of facts, state that there was any fraud. Facts are, however, stated from which, by the rules of equity, it is implied. These rules now govern in all civil actions. Gen. St. 1902, § 532. As Mrs. Wolff was a director, and thus occupied a position as to creditors of a fiduciary nature, when she knowingly took from the company's treasury what did not belong to her, she was chargeable with constructive fraud. There is no error on either appeal. The other Judges concurred. RUSSELL LUMBER CO. v. J. E. SMITH & CO., Inc. (Supreme Court of Errors of Connecticut. Dec. 17, 1909.) 1. APPEAL AND ERROR (§ 82*)-DECISIONS RE VIEWABLE-FINAL JUDGMENT-ORDER DE- after final judgment was rendered against it, 2. AUDITA QUERELA (8 3*)-EXECUTION (§ If a final judgment rendered against defendobtained by plaintiff on scire facias against deant was merged into a judgment subsequently fendant's debtors who were factorized into the action, defendant's remedy to prevent the enforcement of the judgment against it was by a proceeding in the nature of an equitable action, or of audita querela, a judgment in which proceeding would be final and appealable. [Ed. Note.-For other cases, see Audita Querela, Dec. Dig. § 3;* Execution, Dec. Dig. § 171.*] Appeal from Superior Court, New Haven County. Action by the Russell Lumber Company against the J. E. Smith & Co., Inc. From an order denying defendant's motion for a stay of execution upon a judgment for plaintiff theretofore rendered, defendant defendant appeals. Appeal dismissed. John O'Neill, for appellant. George E. Beers, for appellee. The plaintiff contends that his judgment should have included all the cash which the certificate of organization states to have been paid in (that is, $3,500), inasmuch as the firm of Halper & Co. got the benefit of the $2,000 for which full-paid shares were issued to Abrahammer. It is true that they received that benefit; but the complaint is not adapted to the claim thus made. It is unnecessary therefore to inquire as to its merits. The averment is that Mrs. Wolff individually withdrew $3,500 in cash from the company's treasury. The proof was that (except as to a small sum concerning which no suggestion of illegality is made) she with PER CURIAM. This is a motion, made two years after final judgment had been rendered in the action, asking for a stay of execution therein. The ground of the motion is that the judgment is merged in a judgment obtained by the plaintiff on scire facias against the Waterbury National Bank, who were factorized in this action as the debtors of the defendant. If such be the fact, the defendant has a remedy in the nature of an equitable action or of audita que by a sufficient consideration where it is in setAn agreement of compromise is supported tlement of a claim which is unliquidated. rela. A proceeding in either of those ways | 4. COMPROMISE AND SETTLEMENT (§ 6*)-CONwould result in a final judgment from which SIDERATION. an appeal is provided by statute. The statute provides for appeals only from final judgments. The present appeal is not from such a judgment. It was therefore unwarranted and improper, and gives to this court no jurisdiction over the case. The appeal is erased from the docket. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. § 36; Dec. Dig. § 6.*] 5. COMPROMISE AND SETTLEMENT (§ 17*)-EFFECT-CONCLUSIVENESS. Where A., holding C.'s notes, surrendered them on C.'s promise that he would provide for A.'s wife and child after A.'s death, and after he died C., in consideration of such surrender, RUSSELL LUMBER CO. v. WATERBURY and in fulfillment of his promise, executed notes NAT. BANK. to the wife, neither he nor those claiming under him could thereafter claim that it was incum (Supreme Court of Errors of Connecticut. Dec. bent on the wife to show that provision was 17, 1909.) Appeal from Superior Court, New Haven County. Action by the Russell Lumber Company against the Waterbury National Bank. From an order granting defendant's motion to stay execution on a judgment against it, plaintiff appeals. Appeal dismissed. George E. Beers, for appellant. John O'Neill, for appellee. PER CURIAM. For the reasons stated in Russell Lumber Co. v. J. E. Smith & Co., Inc., 74 Atl. 949, the appeal in this case was improperly taken, and it is erased from the docket. ROOT v. NEW HAVEN TRUST CO. et al. (Supreme Court of Errors of Connecticut. Dec. 17, 1909.) 1. TRIAL (8 295*) CONSTRUCTION OF INSTRUCTIONS AS A WHOLE. An instruction on the cause of action stated in one count of the complaint is not erroneous because not embodying a full exposition of the law or because, standing alone, it might mislead, but is to be read with the other in structions on that count. [Ed. Note. For other cases, see Trial, Cent. Dig. 703-706; Dec. Dig. § 295.*] 2. BILLS AND NOTES (§ 94*) SURRENDERNEW NOTES-CONSIDERATION WITHIN ORIG INAL OBLIGATION. Where plaintiff's husband, holding notes of C., surrendered them on C.'s promise to provide for the husband's wife and child after the husband's death, and after such death C., in consideration of the surrender, and in fulfillment of his promise, executed certain notes to the wife, there was a sufficient consideration for them, and, C.'s obligation to support being indeterminate in extent, the case was not within the principle that the new promise must be comprehended within the limits of the original obligation. reasonably necessary for herself and child. 6. BILLS AND NOTES (8 443*)-ACTIONS-PAR TIES. That the notes were made to plaintiff individually, and if enforced by her would leave the son unprovided for, or that, if valid, they were held by her as trustee, could not defeat her individual action, for, if the notes were intended as full satisfaction of the obligation to both wife and son, the risk of making them to the wife individually was assumed by the maker, and, if they did operate as full satisfaction, the wife, though holding for both, was the only promisee and not an official trustee, and could recover the amount impressed with a trust for the son. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1377-1378; Dec. Dig. 8 443.*] 7. BILLS AND NOTES (§ 538*)-ACTIONS-IN STRUCTION. C.'s promise that he would provide for A.'s A., holding C.'s notes, surrendered them on wife and child after A.'s death, and after he died, C., in consideration of such surrender, and in fulfillment of his promise, executed notes to the wife. These notes the wife surrendered to C., on his promise to make provision for herself and son by will; but he died without executing such will, and the wife sued on the notes to her which C. had destroyed. Held, that an instruction, relating the circumstances, and resting plaintiff's right to recover on the notes on the obligation involved in them, notwithstanding such surrender by her, did not tend to predicate her recovery on C.'s promise to make a will, and thus permit a verdict on proof of matters outside of the issues. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 538.*] 8. BILLS AND NOTES (§ 94*)-CONSIDERATION -PROMISE TO THIRD PERSON. Plaintiff's action was on the notes based on the promise to her, and could not be defeated on the ground that the promise was to her husband for her benefit, and that she was not [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 166; Dec. Dig. § 94.*] 3. CONTRACTS (8 67*)-CONSIDERATION-DIS-a party to the contract. CHARGE FROM LEGAL OBLIGATION. That the discharge of a legal obligation is a sufficient consideration for an express promise by the person discharged to perform the obligation or do some act accepted in lieu thereof by the obligee is a correct principle as applied where the original obligation was unliqui dated or doubtful in its extent. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 240; Dec. Dig. § 67.*] [Ed. Note. For other Notes, Cent. Dig. § 166; cases, see Bills and Dec. Dig. § 94.*] Appeal from Superior Court, New Haven County; George W. Wheeler, Judge. New Haven Trust Company, executor, and Action by Margaret Dow Root against the others, to recover for services and the amount of two notes. Verdict for the plaintiff, and judgment after the denial of a motion for a ling Arthur's death, Charles informed the new trial for verdict against evidence, and an appeal by the defendant trust company. No error. plaintiff of this transaction, and thereupon gave to her two notes payable to her for the sum of $4,500, and bearing interest at 5 per cent., saying that he had retained the bal The complaint contains two counts. The first seeks the recovery of $921 as the rea-ance of the former notes for the payment of sonable worth of services rendered to the defendant executor's testate, Charles F. Root, as a nurse and in providing board and washing for other nurses employed for his care. The second asks to recover the amount of the unpaid balance of two notes for the principal sum of $4,500. alleged to have been made in February, 1896, by Mr. Root to the plaintiff for value, and upon which divers payments were made down to May, 1900. The plaintiff is the widow of Arthur Root, to whom she was married in 1890, and by whom she had one child, a son, now living. The relations of Charles F. Root and Arthur were intimate, and in many respects like that between father and son. The latter was accustomed to call Charles and his wife father and mother, and Charles to call Arthur his son, although that relation did not in fact exist, and there had been no adoption. Arthur before his marriage had become a partner in a New Haven business house. He continued this business connection until 1894, when by reason of failing health he sold out, and passed the remainder of his days in the vain effort to stay the progress of his disease. He died in Colorado in 1896, aged 29. Charles died in New Haven in June, 1907, leaving a widow, who for some years had been confined in an insane asylum, an estate of $43,700, and a will executed in 1905. By this will the widow was given the life use of all the testator's estate with power to use the principal, and the plaintiff was given the life use of one-third of the remainder with remainder over to her In In De advances which he had made to Arthur. She retained these notes until December, 1905, and from time to time Mr. Root gave her money and made payments for her amounting in the whole to about $900. No other payments were ever made upon them. cember, 1905, he requested her to deliver the notes to him for safe-keeping, telling her that he intended to make a new will, in which he would provide for her and make her boy his heir. In his last illness, and her boy his heir. some three weeks before he died, she asked him concerning the notes, and if he had provided for her as he had promised, whereupon he replied with feeling that he had destroyed the notes, and had not provided for her, but if God spared him until the next morning he would make it right, and make a new will. The next morning he sent for an attorney, and the work of preparing a will was begun. During the progress of this work, he told her that he was providing for her and her boy in it. Mr. Root died before the execution of this will was accomplished. The plaintiff never authorized, acquiesced in, or ratified the destruction of the notes. ginning in December, 1905, Mr. Root, who for a number of years had been suffering from a permanent disorder, required from time to time the services of the plaintiff as a nurse. and they were rendered as set forth in the bill of particulars. After the operation in March, 1907, he required the services of two nurses, of whom the plaintiff acted as one. The other nurses in attendance boarded with the plaintiff, and their laundry was done by her. The charges set out in the bill of particulars are reasonable ones for the services thus rendered, and the services were rendered under such circumstances as to entitle the plaintiff to compensation therefor. In September, 1904, Charles sold his home, and came to lodge with the plaintiff, who kept a student rooming house. He later began to take his meals at her table. In the course of time, she, at his request, gave up taking other roomers, and he arranged with her to furnish him the privileges of the house with board and laundry for an agreed price. This arrangement was begun in December, 1905, and continued until his death. March, 1907, Charles underwent a surgical operation, and from that time until his death he required the constant services of trained nurses. During this period and before, the plaintiff attended him, and during the latter period gave up much of her time to his care. In addition to the above facts, which were conceded, the plaintiff offered evidence to show, and claimed to have shown, the following: Arthur during the later months of his life held three notes of Charles amounting to $5,400. Shortly before his death he gave them back to Charles upon the latter's promise that in consideration thereof he would Be The defendant offered evidence to discredit the testimony on behalf of the plaintiff as to financial and note transactions etween Arthur and Charles and between Charles and the plaintiff, and especially that offered to establish the claimed holding by Arthur of the alleged notes of Charles, and the surrender of the same to Charles upon the claimed agreement between them by evidence offered as to the resources of Arthur and the expenses which he was called upon to incur by reason of his illness and otherwise. It disputed the plaintiff's rendition of services to the extent claimed by her, that they were so rendered as to entitle her to compensation therefor, and that they were reasonably worth the amount claimed. The verdict was for $6,683, being an amount less than that demanded by the bill Henry C. White and James K. Blake, for | he promised, and that the discharge in full appellant. Talcott H. Russell and George S. McLaren, for appellee. PRENTICE, J. (after stating the facts as above). The errors assigned all relate either to the instructions given to the jury, or to the court's denial of a motion for a new trial for verdict against evidence. The only passage in that part of the charge which related to the claim made under the first count is that in which the jury were told that, if they found that the plaintiff rendered to the defendant's testate services of the character described in the bill of particulars, she would be entitled to recover the value thereof, notwithstanding the fact that she did not make demand during his life; and particularly if they found that she was influenced in not making such demand by the hope that the deceased would compensate her in some better way. This statement, taken by itself, doubtless does not embody a complete exposition of the law or one adequate for the guidance of a jury to a correct conclusion upon a situation like that presented in this case. If it stood alone, it might well lead to a false impression that all that the plaintiff needed to prove was the rendition of the services. But it did not stand alone, as the court's instructions upon this branch of the case, and it must be read and interpreted in connection with its context and the instructions upon this subject taken as a whole. Three pages and more of the record are filled with these instructions. An examination of them shows that the law governing the plaintiff's right of recovery was laid down carefully and exhaustively. It also shows that the only purpose of the passage criticised was to indicate that the absence of a demand on her part during Mr. Root's life would not bar her right to compensation, if the other conditions, already fully stated, were found to be satisfied, and the jury, as men of ordinary intelligence, could not have derived from the charge any other impression. Error is assigned of a passage in the charge bearing upon the issue presented under the second count, to the effect that if the facts were found to be that Arthur, the plaintiff's husband, before his death, held the valid notes of Charles F. Root, and surrendered them to the latter upon the latter's promise to provide for Arthur's wife and child after his death, and that subsequent to Arthur's death Charles in consideration of such surrender upon such promise, and in fulfillment of such promise, gave to the plaintiff the notes in suit, then there was a sufficient consideration for them, and they constituted valid legal obligations of Charles F. Root. We understand the defendant to concede, as it must, that upon the facts stated, if found, Charles F. Root, upon the surrender of the notes by Arthur, came under or in part of this obligation would be a sufficient consideration for a promise. But it is urged, and correctly, that the new promise, to be thus supported, must be one comprehended within the limits of the original obligation. Page on Contracts, p. 447, § 300; Bailey v. Bussing, 29 Conn. 1, 5. The circumstances of the present case, however, do not bring it within the operation of this latter principle. The obligation which originally rested upon Charles F. Root, as the court's instruction assumed, was one wholly uncertain, indefinite, and indeterminate in extent and amount. fullest sense unliquidated. Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695. When, therefore, the obligor and the plaintiff, a beneficiary of the obligation, after Arthur's death, agreed upon something definite and certain to be given and accepted by them respectively in satisfaction or part satisfaction of the obligation, that agreement was one competent for them to make, and one which would be regarded as within and not outside of the original indefinite obligation. It has been laid down that: "If a person is liable in law or equity, the discharge of such liability is a sufficient consideration to support an express promise by him to do what he is legally liable to do, or something accepted in lieu thereof by the person to whom such obligation is owed." Page on Contracts, p. 446, § 300. See McKee v. Lamon, 159 U. S. 317, 323, 16 Sup. Ct. 11, 40 L. Ed. 165. If this principle is somewhat too broadly stated in its latter portion, it is unquestionably a sound one as applied to a case where the original liability is either unliquidated or doubtful in its character, as it also is as applied to a case where what is accepted in lieu of the original obligation is within the scope and reach of that obligation. The underlying principle, in so far as unliquidated or doubtful obligations are concerned, is that which supports the adjustment and compromise of such claims and an accord and satisfaction thereof. Donahue v. Woodbury, 6 Cush. (Mass.) 148, 52 Am. Dec. 777; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785. An agreement of compromise is supported by a sufficient consideration where it is in settlement of a claim which is unliquidated. Baird v. United States, 96 U. S. 430, 431, 24 L. Ed. 703; Heffelfinger v. Hummel, 90 Iowa, 311, 314, 57 N. W. 872; 8 Cyc. 505. Defendant's counsel suggest that if the notes are to be supported by the obligation previously resting upon their maker, it was incumbent upon the plaintiff to present proof that their amount was reasonably necessary as a provision for either the plaintiff or for herself and child, and therefore within the limits of that obligation. This claim has already been answered inferentially at least. The agreement between Mr. Root and the |