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existing highway, any person may prefer an Second, section 2070, regarding the payapplication therefor to the superior court ment of costs on the report of the jury, very

* * and unless the parties shall agree clearly indicates that the property owners as to the judgment to be rendered, such ap-only can apply for a reassessment by a juplication shall be heard and decided by a ry. The costs are by the provisions of this committee of three disinterested persons to section to be paid, either by the applicant be appointed by the court;" that “if such for the jury, or the town. The only apcommittee shall find that such highway will plicant for a reassessment by a jury referbe of common convenience and necessity red to is the one to whom the committee has they shall survey and lay out the same, and assessed benefits or damages. Damages and estimate the damages sustained by or the benefits are not assessed to the town, but special benefits accruing to each person by only to the property owners. the layout * * * and report in writing

Again, this section provides that if the their doings to said court."

report of the jury shall not increase the Section 2067 contains the following pro- damages or diminish the benefits the apvision: "All persons interested in laying out or altering such highway may appear be- plicant shall pay the costs. This language fore said court, and remonstrate against the clearly indicates that the applicant for re

assessment by jury is one who seeks to have acceptance of said report for any irregular- assessment by jury ity or improper conduct on the part of the the damages increased or the benefits di

minished or both. Such would be the purcommittee and for that cause the court may set aside said report, but if it shall be of pose of an application for reassessment by opinion that it ought to be accepted, and if the property owner, but not of the town, before its acceptance a jury shall be moved which, if it could ask for a reassessment by for to re-estimate the damages and benefits a jury, would seek just the opposite, namely, or either, said court shall order a jury of six to have the damages diminished or the bene* and its powers shall be confined to fits increased, or both.

fits increased, or both. li the town or the granting relief to the person or persons mak- selectmen could properly be applicants for ing such application.”

a reassessment by jury, the provision of this Section 2070 is as follows: "If the re- section that, as such applicants, they would port of the jury when accepted shall not be required to pay costs, because they failed! increase the damages allowed or diminish to increase the damages or diminish the the assessment of benefits to the applicant benefits allowed by the committee, would be by the committee the court shall order the a very remarkable one. applicant for the jury to pay the costs of the But practically the same question that is application, but if such jury * * * shall raised in this case was passed upon in the increase such damages or diminish such as

case of Betts and Others v. Hartford, 25 sessment of benefits the damage so assessed Conn, 180, 186, decided in 1856.

. The law shall be allowed with the costs of the appli- then in force in relation to the assessment cation and paid by the town."

of damages from the layout or alteration of It is evidently immaterial to the question highways and to a reassessment by jury before us whether the damages and benefits was similar to the provisions of our pressought to be assessed in this proceeding are ent statutes, excepting that the assessment those described in sections 2051 or 2054, since was first made by the county commissionit is expressly provided that in either case a ers, instead of by a committee. In the case jury may be ordered to reassess them in the cited, the claim having been made that the manner provided by section 2067.

defendants were under the statute entitled The decisive question is whether section to have the damages, which had been as2067 provides that the court may order a sessed by the county commissioners, and jury to make such reassessment upon the ap- which were claimed to be excessive, reasplication of the town by its selectmen. We sessed by a jury, this court said: "Persons are of the opinion that it does not.

whose lands are taken alone have this right First, section 2067 limits the powers of and privilege, but not the public; for it is the jury “to granting relief to the person or the public by its own agents who have taken persons making said application.” The se- the land from others at its just value, as lectmen, as individuals, are evidently not re- fixed by themselves—the legally constituted ferred to by the words “person or persons.” agents of the government-and certainly the As such they have no personal interest in public cannot complain of the judgment of the proceeding. They are merely the repre- their own agents. This we are satisfied is sentatives of the town. The real parties are the theory, and we see nothing in the statthe persons who claim to have sustained ute which leads us to form a contrary opinspecial damages beyond the special benefits ion.” received and the town which is to pay the In the case before us, the superior court damages, and to whom the benefits are to be should have denied the application of the

Conn.)

HAWKEN V. DALEY

1053

There is error, and the judgment of the WHEELER, J. The plaintiff sued upon superior court is reversed and the cause re an express agreement on his part to furnish manded, to be proceeded with according to material and render service in the construclaw.

tion of a building for the defendant upon his agreement to pay therefor the reasonable

value. The defendant pleaded a general de(85 Conn. 16)

nial, and for a second defense alleged that HAWKEN V. DALEY et ux.

the plaintiff agreed to do said work for (Supreme Court of Errors of Connecticut. $450, of which sum he had paid $300, and Dec. 19, 1911.)

tendered the plaintiff the balance; and that 1. EVIDENCE (8 355*)-PRIVATE MEMORANDA | the plaintiff agreed to construct said build-ADMISSIBILITY.

ng in a skillful and workmanlike manner, In an action by a builder for the value of and to the satisfaction of the defendant, and labor and materials furnished, a statement of and to the satisfaction of the defendant, and items for labor, copied from the time book that he did not so construct the building. where the time of the men employed on that One ruling on evidence is complained of. and other work was originally entered, the paper being made to be filed with the other bills

[1] 1. The plaintiff in his own behalf tesfor material, and being plaintiff's regular and tified he could not tell the amount of labor only way of doing business for each job, was he furnished the defendant without looking admissible in evidence as a memorandum of at the bill (Exhibit H) of these items which, details of which plaintiff had no independent memory, where plaintiff testified to its accura

upon inquiry, the witness said was

an cy when made.

original record of the time of his men on the [Ed. _Note.-For other cases, see Evidence, job. Thereupon the court admitted it in Cent. Dig. $8 1484–1491; Dec. Dig. $ 355.*] connection with the testimony of the wit2. TRIAL ($ 296*)-INSTRUCTIONS-REFUSAL ness over the objection that on its face it -INSTRUCTIONS ELSEWHERE GIVEN.

appeared that it was not an original record. It was not error to refuse to instruct as Upon cross-examination, the witness testo the duty of the jury if there should be an exact equipoise in the evidence, where the tified he kept a time book containing the

instructed that plaintiff had the burden time of his men on the different jobs he was to establish his claim by a fair preponderance doing, that at the end of this job he tranof the evidence.

scribed from the time book the time on the [Ed. Note.-For other cases, see Trial, Cent. job to the sheet, Exhibit H, and placed this Dig. $$ 705–718; Dec. Dig. § 296.*]

with bills for material used on this job in an 3. TRIAL ($ 252*)-INSTRUCTIONS_REQUESTS envelope duly marked, and that he kept no -APPLICABILITY TO EVIDENCE,

Refusal to charge falsus in uno, falsus in other book and the method adopted in this omnibus, was proper where the maxim does case was his regular method of business on not appear to have applied to the facts.

each job. The objection that the sheet was [Ed. Note.-For other cases, see Trial, Cent. not an original record proceeded upon the Dig. 89 596-612; Dec. Dig. & 252.*]

theory that its admissibility depended upon 4. TRIAL (8252*)-INSTRUCTIONS-REQUESTS its containing original entries from a book. -APPLICABILITY TO EVIDENCE.

The time book, if in existence, or a copy of In an action by a building contractor for the value of labor and material furnished, an it, if not in existence, would have been adinstruction that plaintiff could not disregard missible upon proof that it contained a daily the contract and recover on a quantum meruit account of the plaintiff's business made in was properly refused where it did not relate to the regular course of his business. Smith the issues as framed and tried, and since it was a self-evident proposition.

v. Law, 47 Conn. 431, 435. The time book [Ed. Note. For other cases, see Trial, Cent. was not in existence, and a sheet of paper, Dig. $8 596–612; Dec. Dig. § 252.*]

though containing a correct transcript of a 5. CONTRACTS ($ 282*)-BUILDING CONTRACTS page of the time book, is not a copy of the -SATISFACTION OF OWNER.

book. It cannot be held to be similar to a Under a building contract requiring the sheet from a loose leaf ledger for that is a

to , honest dissatisfaction prevents recovery, and part of a book kept in sequence, and on its hence in an action by the contractor it was er- face bears the stamp of trustworthiness, ror to refuse to so instruct.

while this sheet never was a part of a book [Ed. Note.-For other cases, see Contracts, but is independent of relation to any other Cent. Dig. $$ 1284-1289; Dec. Dig. § 282.*]

sheet. Reilly V. Torkoman, 78 Conn. 645, Appeal from City Court of New Haven; 63 Atl. 516. It would be difficult to support Richard H. Tyner, Judge.

its admission upon the facts before the court Action by Harry Hawken against John P. at the time it was made; the facts subseDaley and wife. Judgment for plaintiff, quently appearing make the exhibit admis

sible. and defendants appeal. Reversed, and new trial ordered.

The witness was asked to testify as to the

details of a transaction which are proper Walter J. Walsh and Charles F. Mitchell, subjects of book entries. He cannot do this for appellants. John Elliott, for appellee. without reference to the record of these

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

items as made by him and copied from a, where do we find facts stated from which time book which he himself kept in the day the application of the maxim might be made. and time. He does not attempt to use the Allen v. Rundle, 50 Conn. 9, 33, 47 Am. Rep. paper to refresh his recollection. He knows 599. The court's duty was to charge the jury the paper contains an accurate account of as to the principles applicable to the facts the time as kept by him, and in effect he so of the case, not as to abstract principles of states. It was therefore admissible in con- law not supported by the facts of the case. nection with his statement of the accuracy Morris v. Platt, 32 Conn. 82; Sisson v. Stonof the account when made.

ington, 73 Conn. 348, 354, 47 Atl. 662. A memorandum of details may refresh the [4] 4. The defendant's request that the recollection of the witness who made it or court charge the jury that if the plaintiff saw it made; if so, the recollection of the made an express contract and found he could witness must be given and the memorandum. not do the work thereunder at a profit he excluded. Palmer v. Hartford Dredging Co., could not disregard the contract and recover 73 Conn. 182, 187, 47 Atl. 125. Or, as in this on a quantum meruit has no relation to the case, it may not refresh his recollection, issues as framed or tried to the jury, and in but if he knows it to correctly state the de- addition was a self-evident proposition. tailed facts of which he has no present mem [5] 5. As we understand the charge the ory, it may, in connection with his testimo- court left the issues to the jury as follows: ny, be admitted as a memorandum of de- If they found proven the express contract tails essential to the full proof of the trans- claimed by the plaintiff they should asceraction, and in substance this was the basis tain the reasonable value of the material upon which this was admitted. Curtis v. and services furnished, deduct the payment Bradley, 65 Conn. 99, 114, 31 Atl. 591, 28 L. made by the defendant, and render a verR. A. 143, 48 Am. St. Rep. 177.

dict for the balance with interest. If they The defendants' request that the court found the plaintiff expressly agreed to concharge the jury that if they find Exhibit struct the building for $450, and did it, they H was not an original entry they should should deduct the payment made of $300, and disregard it as evidence was properly re- render a verdict for the $150, with interest fused.

if they found no tender to have been made, [2] The defendant complains of the court's and without interest if they found legal tenfailure to comply with his request to charge der to have been made. as to the duty of the jury in case there was If they found no express contract, but an exact equipoise in the evidence.

found that the plaintiff furnished material 2. The court instructed the jury that "the and rendered service they should ascertain burden of proof is upon the plaintiff to es- their fair and reasonable market value, detablish by a fair preponderance of the evi- duct the payment made, and render their dence the essential allegations of his com- verdict for such sum with interest. The plaint” and it instructed the jury fully as to serious objection to the charge is the refuswhat it regarded as these elements. There al of the court to comply with the defendcan be no equipoise in the evidence where ant's request that, “If the jury believe and there is a preponderance of proof and a find that the plaintiff agreed to do the work preponderance in support of the elements in connection with the erection of the buildessential to a cause of action. A reading ing for the defendant to the satisfaction of of the entire charge makes it reasonably cer- the defendant and they further find that tain the jury must have understood what it the defendant is not satisfied with the work, was incumbent upon the plaintiff to prove the plaintiff cannot recover, and it makes no and that no harm resulted, although this difference whether the defendant fails to be request might properly have been given. satisfied is reasonable or unreasonable.” The City Bank's Appeal, 54 Conn. 273, 274, 7 Atl. defendant made the subject of this request 548; Wolfe v. Ives, 83 Conn. 178, 76 Atl. a part of his second defense. The finding is 526.

that the defendant offered evidence to prove The defendant claims the court erred in and claimed that he had proved "that the not charging that the plaintiff must es work was to be performed

to the tablish by the preponderance of the evidence satisfaction of the defendant." And the the value of the services and material, but court in its charge recognized this defense as these were plainly stated to be among the an issue before the jury by including it elements of proof necessary to the plain among the "principal issues" to be detertiff's case, and the jury had been told that mined by the jury. Nowhere in the charge the plaintiff must establish by a fair pre- does the court explain to the jury the legal ponderance of the evidence the essential ele- relation of this issue to the case. ments of his case.

The verdict imports a finding adverse to [3] 3. Another claimed error is the neg- the contract to build for a stated sum as lect of the court to charge, as requested, claimed by the defendant, but it does not falsus in uno, falsus in omnibus. This re necessarily import a finding that the building quest was a mere statement of a principle was not to be constructed to the satisfaction

*

Cunn.)

ADLEMAN v. BOARD OF HEALTH

1055

was in fact to his satisfaction. Such a de Appeal from Superior Court, Hartford fense is a complete one. An honest dissat- County; William H. Williams, Judge. isfaction when proven will prevent a re

Mandamus by Martin F. Adleman to comcovery.

pel the issuance of a license by the Board of In an action on a written contract we Health of the City of Hartford. From a said: “It is competent for parties to a con- judgment for defendants upon a motion to tract for sale to agree that the thing which quash the alternative writ, plaintiff appeals. is the subject of the contract shall be sat- | No error. isfactory to the vendee, and that the contract shall not be binding on the vendee unless, liam W. Hyde, for appellees.

Stewart N. Dunning, for appellant. Wilafter examination of the thing or at the time fixed for delivery and payment, the vendee is satisfied with the thing." Libernum v. Beck

THAYER, J. The plaintiff claims that he with, 79 Conn. 320, 65 Atl. 153; City of Hart- is entitled to a license to keep a maternity ford v. Hartford El. L, Co. et al., 65 Conn. 324, hospital, under section 4670 of the General 334, 32 Atl. 925; Zaleski v. Clark, 44 Conn. Statutes, which provides that: “No person 218, 223, 26 Am. Rep. 446. The defendant was shall keep a maternity hospital or lying-in entitled to a charge upon this subject.

In- place unless he has previously obtained a listead, the jury are told that in the event they cense therefor duly issued by the mayor or find the contract proven as claimed by the de- board of health of the city or health officer fendant they should find a verdict for at least of the town wherein such maternity hospital

He made an $150 in favor of the plaintiff, and immediate- or lying-in place is situated.” ly after adverting to the principal issues to be application for such a license to the defend

He claims that determined, including the issue of satisfac- ants, which was refused. tion, the jury are instructed "and in addi- the statute gives the board of health no distion to that, however, the amount, which bound to give a license to every applicant,

cretion in the matter, but that they are the defendant owes,” thus not only failing regardless of character or qualifications. to explain the legal aspect of this defense, The statute in terms imposes no duty upon but practically removing it from their con- the board of health to license any one to sideration.

conduct such a hospital or place. Any duty Other criticisms of the charge do not re- which is thereby imposed upon the board is quire discussion.

an implied one. Whether such a duty is imThere is error, and a new trial is ordered. plied and, if so, the nature, extent, and limiThe other Judges concurred.

tations of the duty are to be determined from the act itself, its language, and the

purpose intended to be accomplished by it. (84 Conn. 691)

The provisions of the act, subsequent to the ADLEMAN V. BOARD OF HEALTH OF

portion above quoted, show that the purpose CITY OF HARTFORD.

of the act was to regulate the business of

keeping such places as are therein described. (Supreme Court of Errors of Connecticut. Dec. 19, 1911.)

Such business, when properly conducted, is

legitimate and of public benefit; but that it MANDAMUS_ ($ 154*)-PROCEEDINGS-ALLEGA-affords opportunity for the commission and TION OF RIGHT TO RELIEF.

Gen. St. 1902, 8 4670, provides that no successful concealment of crime is apparent. person shall keep a maternity hospital without The act contemplates this and provides for a license therefor from the officials of the city the visitation and inspection of such places, or town chargeable with the care of the pub- when licensed, for the purpose of detecting lic health, and provides, further, for the conduct and management of such hospitals, for the improper treatment of any child, and inspection by the health officers of the city or the discovery and removal of any article town where the hospital is located, to detect which the visiting authority thinks presents improper treatment of any child therein, or any other improper management or conduct, evidence of any crime having been commitand for the removal of any articles found ted therein. It is not to be presumed that therein believed to present evidence of crime the Legislature, contemplating, as it evidentcommitted therein. Held, that the section pro- ly did, the danger and possibility of such viding that "no person shall keep a maternity hospital,” etc., which imposes upon a board of places being used for the perpetration and health an implied duty to license such a hos- concealment of crime, intended, in impliedly pital, must be construed to grant a discretion imposing upon boards of health the duty of ary power to issue such license, and the right "duly licensing” persons to carry on the busito determine the character and moral fitness of the applicant, so that a petition for manda- ness, that they shall license any and every mus to compel the issue of such a license was person who shall make application for such insufficient, where it did not allege that the a license. It must have been intended that applicant was a suitable person to be licensed, the board should have some discretion in or that the defendants, in refusing a license, the board should have some discretion in did not exercise a reasonable discretion.

granting such license, and that the character [Ed. Note.-For other cases, see Mandamus, and moral fitness of the applicant should be Cent. Dig. 88 296-316; Dec. Dig. § 154.*] considered before granting a license.

It

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

cannot be supposed that it was intended that or withhold a license as it shall see fit, but a license should be granted to a person al- that it shall exercise a reasonable discretion ready under conviction for the violation of in the performance of such duty. this very statute, or for some other offense There is no allegation in the application or involving moral turpitude.

in the alternative writ that the applicant is It is to be implied from the fact that all a suitable person to be licensed, or that the persons are forbidden to pursue this occupa defendants in refusing him a license did tion, unless they have procured a license not exercise a reasonable discretion. Withfrom the board of health, and from the other out the allegation and proof of these facts, provisions of the act referred to, that it is the plaintiff was not entitled to the writ the duty of that board to issue licenses to prayed for, and the motion to quash was suitable persons to conduct the business in properly sustained. suitable places; that it does not lie within There is no error. The other Judges conthe absolute discretion of the board to grant 'curred.

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