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The defendant contends that the court erred in refusing to set aside the verdict, which was against the evidence.

fied up as provided in that section. This and issues properly presented is given by transcript supersedes the finding as disclos-the trial judge with such fullness as to coring what the evidence tended to prove, so rectly guide the jury in its finding. This was that any formal corrections of the finding in done in the present case. respect to the matters complained of would be unimportant as bearing upon the only assignment of error touched by them. Powers v. Connecticut Co., 82 Conn. 665, 670, 74 Atl. 931, 26 L. R. A. (N. S.) 405. These corrections were material to no other claim of error than that the court erred in not setting aside the verdict.

[3, 4] Complaint is made in the appeal that at least seven requests to charge which related to the question of proximate cause were not complied with. The whole charge proceeded upon the theory that it was incumbent upon the plaintiff to prove every material allegation contained in her complaint by a preponderance of the evidence.

[5] It was conceded that there was a collision, and that the plaintiff was seriously injured in consequence thereof. No claim was made by the Connecticut Company that the plaintiff was not in the exercise of due care when the accident occurred. The main fact relied upon by the plaintiff as against the trolley company was that the motorman failed to exercise reasonable vigilance in watching the movements of the automobile when he knew, or ought to have known, that there was danger of a collision.

The complaint alleged that:

"While the servant of the Connecticut Com

the same at a dangerous rate of speed for said time and place, and while he was negligent in failing to keep a constant lookout for teams and vehicles as he approached said corner, and failed to watch the movements of the defendant Wolven's automobile truck."

It was conceded that the motorman of the

The jury were informed that: "She must have satisfied you by a fair pre-pany, the motorman on said car, was propelling ponderance of the evidence that she was in the exercise of due care; that she was not guilty of any act which contributed proximately to her injury. Now, if you find that she was acting with due care, then she must prove that her injuries were occasioned or caused by the negligence of both the defendants or of one defendant. You will consider the case brought here against these defendants separately and together. It may be that one of them is negligent and the other not; or it may be that they are both negligent; or it may be that neither of them is negligent. So you will consider the case against each of them separately, and then all the tacts together, in order to determine whether any liability has been proven, and, if so, whether that liability is against both, or against one, and against which one."

trolley car could have seen the automobile when he was more than 1,000 feet away, and that he could have watched it from that time until the vehicles came together.

Most of the evidence upon this part of the case was conflicting and capable of a different interpretation, and this issue was peculiarly within the province of the jury as a question of fact.

The jury has found for the plaintiff.

The superior court has neard all the evidence, and denied the motion to set aside the verdict. The defendant now insists that these conclusions are not justified by the evidence, and we are asked to set them aside. This we cannot do, unless it appears that the jury could not have reasonably reached the decision embodied in their verdict. This does not appear.

In speaking of the conduct of Wolven, who was in charge of the auto bus, the court said: "He says that if his steering gear had not broken down he would have escaped from that place; but I think you should consider, in determining his liability, whether he was free from negligence in taking his car so near to the trolley track in the face of an approaching car before he tried to steer out. I think that you must consider all the evidence upon that point to see when he began to edge over towards the rail, and whether he did not know, or ought not to have known, that he was coming into a dangerous proximity to it, considering the fact that he saw a car approaching. If he was negligent in that respect, why I think you would say that that negligence was a proximate cause of the injury, notwithstanding that after he had got into a dangerous place he failed to escape from it through no fault of his own.' The instructions adequately stated the law 1. WILLS (§ 647*)-LEGACIES-CONDITIONSupon the material points to which attention was directed by these requests, and there is no foundation for the defendant's criticism that the question of proximate cause was entirely ignored in the charge as given.

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Counsel for the defendant requested 15 special instructions. The court, however, did not give any of them, except as they were embodied in the general charge. The court was under no duty to notice these requests specifically as they were made. It is sufficient if the law arising upon the evidence

There is no error. The other Judges concur.

(88 Conn. 387)

DABOLL v. MOON et al. (Supreme Court of Errors of Connecticut. July 13, 1914.)

RESTRAINT OF MARRIAGE.

While a condition, attached to a legacy, in restraint of marriage generally is invalid legatee shall not marry a certain person, or a as against public policy, a condition that the legacy to a widow to divest if she marries, is valid.

Dig. §§ 1533-1538; Dec. Dig. § 647.*]
[Ed. Note.-For other cases, see Wills, Cent.
2. WILLS (8 647*)-LEGACIES CONDITION-

RESTRAINT OF MARRIAGE.

The condition of a legacy to testator's son to be paid to him on the death of his present wife, or if he should obtain a divorce from her,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

or should become separated from her, or if within a year after divorce or separation he should become married to a good respectable woman, was not contrary to public policy as a restraint of marriage.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1533-1538; Dec. Dig. § 647.*]

Case Reserved from Superior Court, New London County; Joel H. Reed, Judge.

Suit by Charles H. Daboll, as administrator de bonis non and trustee of the will of John Moon, deceased, against Jesse A. Moon and others, to construe the will. Case reserved from superior court. Superior court advised to render judgment that the bequest was not violative of public policy or good

morals.

Perry J. Hollandersky, of New London, for plaintiff. Abel P. Tanner and Nathan Belcher, both of New London, for Willard B. Moon. William J. Brennan, of New London, for Jesse A. Moon.

THAYER, J. The plaintiff is administrator d. b. n. with the will annexed of the estate of John Moon, who died in 1898, leaving real and personal estate and three sons, John H. Moon, Jesse A. Moon, and Willard B. Moon. One half of the testator's estate is given by the will to Jesse A. Moon upon a condition relating to the son John H., which is now unimportant, as the latter died in 1899. The other half of the estate was disposed of by the following provisions of the will:

Jesse A. Moon was named as executor and qualified as such, and as trustee under the provision quoted. He afterwards resigned as executor and trustee, and the plaintiff was appointed trustee in his place.

Willard B. Moon and his wife, referred to

in the will, are both living, and he has never separated from her by divorce or otherwise, and he has no children. He claims that the condition upon which the testator made the gift to him of the income of the trust fund depend was illegal as against public policy, as encouraging a separation by him from his wife, and therefore void, and that the gift of the income was therefore absolute, and that

he is entitled to it as it accrues. .

[1] Cases can be found which hold, and perhaps the weight of authority supports the view, that a gift or legacy made upon a condition which constitutes an inducement to a married person to obtain a divorce or to live separate from the other spouse is void as against public policy. Conrad v. Long, 33 Mich. 78, 79; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391. So it is said are conditions in restraint of marriage. But the rule in the latter case is qualified, and there are exceptions to it. The condition must be in restraint of marriage generally. A condition that the legatee shall not marry a certain person is valid. A legacy to a widow, conditioned to divest if she marry, is valid. Chapin v. Cooke, 73 Conn. 72, 46 Atl. 282, 84 Am. St. Rep. 139. Bigelow, in a note to Jarman on Wills (6th Ed.) vol. 2, p. 49, s. p. 886, says:

"Upon_the_death of the present wife of said Willard B. Moon, or if he shall obtain a divorce from her or shall become separated from her, at "If the question were open, there might be the end of a year from said divorce or separa- ground to inquire whether conditions in retion, or if within said year he shall become mar-straint of marriage generally are contrary to ried to a good respectable woman, then in either public policy." of said events the said Willard B. Moon shall be entitled to and shall receive the income and profit from said trust fund after the payment therefrom of one dollar and fifty cents per week to said John H. Moon, but if said Willard B. Moon shall ever return to live with his present wife his interest in said trust shall be divested and he shall not be entitled to receive any of the benefits thereof. It is my will that my said trustee may if he deem it best use and expend a part of the whole of the principal of said trust for the benefit of said Willard B. Moon, or for any of the purposes of this trust, giving him full power to use his discretion in the management, interpretation and administration of this trust. * * *

"Upon the death of said Willard B. Moon the trust shall continue for the benefit of said John H. Moon as aforesaid, if he still be living, and the funeral expenses of said Willard B. Moon shall be paid out of the same, and if said Willard B. Moon shall have married a good respectable woman as aforementioned, and shall have had issue by her, the income and profit of said trust that would have gone to said Willard shall be expended by my trustee for the benefit of said issue, but if said John H. Moon be then dead, and in any event upon the death of both Willard B. Moon and John H. Moon, after the payment of their funeral expenses said trust shall divest and whatever of said trust fund then be remain—I give, devise and bequeath to the issue of said Willard B. Moon if have any other than from his present wife and failing them, to said Jesse A. Moon his heirs and assigns forever."

[2] The present case is not one where the condition is in restraint of marriage, although somewhat akin to it. The separation which it is claimed that the condition in question tends to promote offers no encouragement to celibacy on the part of the donee. The condition rather encourages a new marriage, for an early remarriage advances the time at which the income shall be paid to him if the condition is fulfilled. The marriage here was a fact at the time the will was made and went into effect. The gift was to vest in the donee upon the death of his wife, upon his divorce from her, or if he permanently separated from her. We are asked to say that the condition upon which the legacy was to vest is void as against the public policy of this state, and that the result of this is to make the gift absolute, so that it vests in the donee without performance of the condition. It is clear from the language of the will that the result claimed would be directly contrary to the expressed intent of the testator. He did not intend that the income should vest in Willard if he should not become separated from his wife by her death, a divorce, or in some other way. The cardi

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

nal rule in the interpretation of wills is to seek and carry out the testator's intent. Wolfe v. Hatheway, 81 Conn. 181, 184, 70 Atl. 645. This rule is in direct conflict with the one which is urged upon us by counsel for the donee, namely: That as the condition is unlawful the law understands that it is impossible of performance, and that this impossibility is the equivalent of performance. We are not required to attempt a reconciliation between these rules in the present case; the conclusion to which we have come upon the other branch of the case rendering it unnecessary.

was made. Born v. Horstman, 80 Cal. 452, 22 Pac. 169, 338, 5 L. R. A. 577; Cowley v. Twombley, 173 Mass. 393, 397, 53 N. E. 886, 46 L. R. A. 164; Coe v. Hill, 201 Mass. 15, 21, 86 N. E. 949; Thayer v. Spear, 58 Vt. 327, 329, 2 Atl. 161; Ransdell v. Boston, 172 Ill. 439, 50 N. E. 111, 43 L. R. A. 526; Cooper v. Remsen, 5 Johns. Ch. (N. Y.) 459.

Where it is possible that the condition may be legally performed, it will not be presumed that the testator intended an illegal performance. The present gift was upon alternative conditions, one of which was the death of Willard's wife. It will not be presumed that the testator, in the absence of express language so directing, intended that his son should procure his wife's death. His counsel admit that, if the wife's death had been the only condition of the vesting in him of the income, the condition would have been valid. But the will holds out the same inducement to him to procure her death which it does to procure an illegal divorce or separation from her. In Cowley v. Twombley, 173 Mass. 393, 53 N. E. 886, 46 L. R. A. 164, supra, where the facts were somewhat similar to those in this case, the court said:

Upon the face of the will, therefore, the condition upon which the income was to vest in Willard was not void, and he has not shown any facts extrinsic of the will which compel a construction which will make it void as against public policy.

Upon the facts appearing in this record it cannot be said that the condition upon which the income of this trust fund was bestowed was against public policy. It has never been the policy of this state as it formerly was the policy of the church to compel people married to each other to continue for life in that relation and cohabit together, regardless of their inaptitude for such cohabitation, and however unfitted they may be in disposition and temperament to mutually perform the duties of the marriage relation. The state does not favor divorces; but it allows them for several causes, because it believes that "The scheme of the trust no more tended to inthe interests of society will thereby be better duce the son improperly to procure a divorce served, and that its own prosperity will there-between himself and his wife, than to induce him to procure her death." by be promoted. Dennis v. Dennis, 68 Conn. 186, 197, 36 Atl. 34, 34 L. R. A. 449, 57 Am. St. Rep. 95. So, too, the state deems it to be in the public interest that husband and wife in some cases shall live separate and apart, although not divorced. In 1895, before the will under consideration took effect, a law, now General Statutes, § 1354, was passed There was no occasion for the plaintiff as making the marrying or living together as administrator or as trustee to bring this acman and wife of any man and woman, one of tion. There is no one at present to demand whom is epileptic, imbecile, or feeble-minded, the distribution of the corpus of the trust a criminal offense punishable by imprison- estate. The son Willard is claiming only ment in the state prison. This law, as to one the income. The disposition of the corpus of class of persons with whom it deals, was sus- the estate is in no way affected by the validtained as constitutional by this court as legis-ity or invalidity of the condition upon which lation in the interest of the public health. Gould v. Gould, 78 Conn. 242, 245, 61 Atl. 604, 2 L. R. A. (N. S.) 531. To condition a gift upon the doing of what the state treats by its legislation as promotive of the public interest and its own prosperity, or what it requires to be done in the interest of the public health, cannot be against public policy. To make the condition void as against public policy, it must appear from the language of the will alone or in connection with extrinsic facts that the testator in the particular case in question conditioned his gift upon an illegal divorce or separation. Numerous cases are to be found which support the view that, where a gift is upon condition that the donee shall obtain a divorce or live separate from husband or wife, the condition is valid, when it appears from the will in connection with the surrounding circumstances that a legal divorce or separation was intended, or where a separation already existed or a suit for divorce was pending at the time that the will

the gift of the income is limited. The only question which the plaintiff has now to consider, either as trustee or administrator, is whether Willard is now entitled to receive the income. Before the time arrives for the distribution of the body of the estate there may be issue of Willard, either by his present or another wife, to make their own claims as to its distribution. The only question between the parties now being whether Willard is entitled to the income, it could have been settled in an action at law brought by Willard against the present plaintiff as trustee, and such an action should have been brought, instead of bringing the present apparently amicable suit.

The superior court is advised to render judgment that the condition upon which the gift of the income to Willard B. Moon is made is not void as against public policy and good morals. No costs will be taxed in this court in favor of either party. The other Judges concurred.

(88 Conn. 382)

NYSTROM v. BARKER et al.

feet, to be built on Riverside Avenue for the Barker Auto Co."; and in its body it pro(Supreme Court of Errors of Connecticut. July vided as follows: "N. E. Nystrom agrees to

13, 1914.)

build garage

for the Barker Auto

1. APPEAL AND ERROR (§ 699*)-REVIEW- Co." It was signed by the defendants inNECESSITY OF FINDING OF FACTS. dividually.

The several parts of a charge complained of cannot be considered, in the absence of a finding of facts as required by the rules. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. 699.*]

ed that the contract sued on was that of the Barker Auto Company, a corporation, and that they signed the same as directors of the corporation, and in its behalf, and not as in

In their first defense the defendants alleg

2. APPEAL AND ERROR (8 694*)-REVIEW-dividuals. FINDINGS.

In their second defense they allege fraud

The incorporation in a finding of the entire evidence properly presents the question of a by means of false representations. directed verdict and that arising upon a motion to set aside a verdict, but nothing more, since the Supreme Court cannot find facts from the

evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. § 694.*]

3. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-INADEQUATE FINDINGS.

Where the only questions on appeal are those raised by the motions to direct a verdict, and to set aside a verdict for plaintiff, appellants are not prejudiced by the inadequacy of the lower court's finding of facts.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. & 1071.*]

4. CONTRACTS (8 179*)-CONSTRUCTION-Par

TIES.

A contract whereby plaintiff agreed to build a garage "for the Barker Auto Company," signed by the defendants, who were husband and wife, individually, containing no words purporting to bind the corporation, or indicating that the signers acted officially or as agents, was the contract of its individual signers, and not of the corporation; the words "for the Barker Auto Company" referring to the use of the structure, and not to the capacity of the parties signing the contract.

In a special defense they allege that the defendant Mrs. Barker was and is the wife of the defendant Daniel Barker, and had been married prior to April 20, 1877.

They also filed a counterclaim, alleging that the contract was intended by both parties to be one between the plaintiff and the corporation, and by way of equitable relief claimed, because of the alleged mutual mistake, a reformation of the contract by the addition of the words "Directors of said Corporation" after their signatures.

To the special defense, the plaintiff replied that the contract was made by Mrs. Barker since her marriage upon her personal credit, for the benefit of herself, and of her separate and joint estate. And also that it was entered into by her jointly with her husband for the benefit of her estate and their joint estate.

The issues on the counterclaim were tried to the court and found in favor of the plaintiff.

No evidence of misrepresentation was before the jury. And no evidence was offered aside from the contract to show that the defendants intended to bind the corporation,

[Ed. Note.-For other cases, see Contracts, Cent. Dig. $$ 777, 778; Dec. Dig. § 179.*] and did not intend to bind themselves in5. HUSBAND AND WIFE (§ 162*)-CONTRACTS-dividually. WIFE'S SEPARATE ESTATE.

Under Gen. St. 1902, § 591, providing that actions may be maintained against a married woman upon any cause of action accruing before her marriage, and upon any contract by her thereafter upon her personal credit for the benefit of her separate or joint estate, a contract by a married woman, married before 1877, for the construction of a garage for a company in which she was a director, and which would indirectly increase the value of her stock therein, was a contract for the benefit of herself and her estate, making her personally liable.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 322, 596, 600, 614, 637640; Dec. Dig. § 162.*]

Appeal from Court of Common Pleas, Hartford County; Edward L. Smith, Judge. Action by Nils E. Nystrom against Mary J. Barker and others. Verdict and judgment for plaintiff, and defendants appeal. No er

ror.

Kendal M. Pierce, of Bristol, for appellants. Epaphroditus Peck, of Bristol, for appellee.

WHEELER, J. The plaintiff sued upon a building contract entitled "Specifications for Carpenter and Mason Work on Garage 60x99

Two questions only were before the jury: (1) Whether the contract was that of the Barker Auto Company, or that of the individual signers. (2) If the contract was that of the individual signers, whether the marriage of Mrs. Barker prior to April 20, 1877, prevented her becoming liable upon this contract.

[1] The several parts of the charge complained of cannot be considered, in the absence of a finding of facts as required by the rules.

[2] The incorporation in the finding of the entire evidence properly presents the question of a directed verdict and that arising upon a motion to set aside a verdict; further than that it cannot serve, since this court has no power to find facts from evidence.

[3] The defendants are not in this instance prejudiced by the inadequacy of the finding, since the only questions in the case are raised by the motions to direct a verdict, and to set aside the verdict.

[4] The defendants' first claim, that this contract is that of the corporation, and not of the individual signers, is answered by an

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

It falls within Bidwell v. Beckwith, 86 Conn. 463, 468, 85 Atl. 682, Belden v. Sedgwick, 68 Conn. 560, 37 Atl. 417, and Thresher v. Barry, 69 Conn. 470, 37 Atl. 1064, and comes clearly under the statute. There is no error. The other Judges concurred.

inspection of the contract. It contains no | 37 Atl. 420, 37 L. R. A. 452, 57 Am. St. Rep. words purporting to bind the corporation, 112; Barlow v. Parsons, 73 Conn. 696, 49 neither is it signed in its behalf, nor do the Atl. 205; Hart v. Goldsmith, 51 Conn. 480; signatures indicate in any way that the and National Bank of New England v. Smith, signers acted officially or as agents, or in- 43 Conn. 327. tended so to act. Jacobs v. Williams, 85 Conn. 219, 82 Atl. 202, Ann. Cas. 1913B, 900. The words in the heading and body of the contract that the garage is "for the Barker Auto Company" refer to the use of the structure, and to its building. By no possible construction can the words be construed to refer to the liability imposed by the contract, or to the capacity in which its makers signed. There is thus nothing in the body of the contract indicating a corporate obligation, and nothing in connection with the signatures expressive of an agency, or of the official character of the signers.

It is not a case of mutual mistake. Nor is

it an attempt to hold a principal by showing its actual interest without attempting to secure the release of individual signers. Nor is it a case of an ambiguous contract leaving the real contract open to proof as some

courts hold.

The plaintiff was entitled to have had the jury directed that the contract upon its face was that of its signers, and not that of the corporation.

The verdict of the jury upon the issues as framed meant that they found that the contract was not signed by the defendants as directors of the corporation, and in its behalf. Upon this ground the motion to set aside the verdict was properly denied.

(88 Conn. 409)

FARLEY v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Errors of Connecticut. July 13, 1914.)

1. MASTER AND SERVANT (204*)-ASSUMP-
TION OF RISK-FEDERAL EMPLOYERS' LIA-
BILITY ACT-OPERATION.

April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp.
The federal Employers' Liability Act (Act
St. Supp. 1911, p. 1322]), did not abolish the
defense of assumption of risk, save where the
carrier's violation of some federal statute, en-
ed to the injury or death of the employé.
acted for the safety of employés, has contribut-

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*]

2. MASTER AND SERVANT (§ 217*)-DEATH OF RAILROAD ENGINEER-ASSUMPTION OF RISK. who was familiar with engines and tenders and Where an experienced locomotive engineer their proportions, and who, not only by reason of his frequent and recent service over the portion of the road where he was killed by coming in contact with an electric wire while passing from the cab over the top of the tender in the course of his duties at an overhead bridge, where the wire was necessarily lower than usual, but by reason of special notices he assumed, by continuing in his employment, given him, knew and appreciated the danger, those risks connected therewith which had re

[5] Mrs. Barker owned stock in the Barker Auto Company. For the benefit of that company she and the other directors contracted to build for it a garage. Jointly with her husband she signed this contract. The build-mained unchanged and unenhanced by any new ing of the garage would add to the assets of the company and as a consequence increase the value of her stock interest.

It was thus a contract in fact for her own benefit, and for the benefit of her separate estate. It was as much for her benefit as an addition to her personal chattels, and it can

make no difference that in the one case there is a direct increase in the quantum of her property and in the other an increase in its

value.

Our statute should not receive a construction which would permit a woman, married before 1877, to buy stock in, become a director of, a corporation, enter upon contracts intended to increase the value of her investments in the corporation, and then retain the benefit and repudiate the obligation of her contract.

This case is one where the wife's contract benefits her and her estate, and was made upon her personal credit. G. S. 1902, § 591. It does not fall within the decisions relied upon by the defendants.

It is not a contract for the benefit of another as in Freeman's Appeal, 68 Conn. 533,

and negligent act of defendant; and hence there could be no recovery for his death.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by Eugene F. Farley, administrator, against the New York, New Haven & Hartford Railroad Company for personal injuries resulting in the instantaneous death of plaintiff's intestate. From judgment for defendtiff's intestate. ant, plaintiff appeals. No error.

This case was formerly before this court as reported in 87 Conn. 328, 87 Atl. 990. The undisputed evidence established the following facts:

September 28, 1911, the plaintiff's intestate, John H. Bottomley, met his death while engaged in his employment as a locomotive engineer, and while in charge of a locomotive engine hauling an interstate freight train between Stamford, in this state, and New York City. The train was proceeding westward at the time, and approaching an overhead highway bridge in Larchmont, N. Y., known

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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