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existing highway, any person may prefer an application therefor to the superior court * * * and unless the parties shall agree as to the judgment to be rendered, such application shall be heard and decided by a committee of three disinterested persons to be appointed by the court;” that “if such committee shall find that such highway Will be of common convenience and necessity they shall survey and lay out the same, and estimate the damages sustained by or the special benefits accruing to each person by the layout * * * and report in writing their doings to said court.” Section 2067 contains the following proVision: “All persons interested in laying Out or altering such highway may appear before said court, and remonstrate against the acceptance of said report for any irregularity or improper conduct on the part of the committee and for that cause the Court may Set aside said report, but if it shall be of opinion that it ought to be accepted, and if before its acceptance a jury Shall be moved for to re-estimate the damages and benefits or either, said court shall order a jury of six * * * and its powers shall be confined to granting relief to the person or persons making Such application.” Section 2070 is as follows: “If the report of the jury when accepted shall not increase the damages allowed or diminish the assessment of benefits to the applicant by the committee the court shall order the applicant for the jury to pay the costs of the application, but if such jury * * * shall increase such damages or diminish Such assessment of benefits the damage So assessed shall be allowed with the costs of the application and paid by the town.” It is evidently immaterial to the question before us whether the damages and benefits sought to be assessed in this proceeding are those described in sections 2051 or 2054, since it is expressly provided that in either case a jury may be ordered to reassess them in the männer provided by section 2067. The decisive question is whether section 2067 provides that the court may Order a jury to make Such reassessment upon the application of the town by its selectmen. We are of the opinión that it does not. First, section 2007 limits the powers of the jury “to granting relief to the person or persons making said application.” The Selectmen, as individuals, are evidently not referred to by the Words “perSon Or perSonS.” As such they have no personal interest in the proceeding. They are merely the repreSentatives of the to Wn. The real parties are the persons who claim to have sustained special damages beyond the special benefits received and the to Wn Which is to pay the damages, and to whom the benefits are to be

Second, section 2070, regarding the payment of costs on the report of the jury, very clearly indicates that the property owners only can apply for a reassessment by a juTy. The COStS are by the provisions of this Section to be paid, either by the applicant for the jury, or the town. The only applicant for a reassessment by a jury referred to is the one to whom the committee has assessed benefits or damages. Damages and benefits are not assessed to the town, but only to the property owners.

Again, this Section provides that if the report Of the jury shall not increase the damages or diminish the benefits the applicant shall pay the costs. This language clearly indicates that the applica1.5 for reassessment by jury is one Who seeks to have the damageS increased Or the benefits diminished or both. Such would be the purpose of an application for reassessment by the property owner, but not of the town, which, if it could ask for a reassessment by a jury, WOuld Seek just the Opposite, namely, to have the damages diminished or the benefits increased, or both. If the town or the

Selectmen could properly be applicants for

a reassessment by jury, the provision of this section that, as such applicants, they would be required to pay costs, because they failed to increase the damages or diminish the benefits allowed by the committee, Would be a Very remarkable One. But practically the same question that is raised in this case was passed upon in the case of Betts and Others V. Hartford, 25 Conn. 180, 186, decided in 1856. The law then in force in relation to the assessment Of damages from the layout or alteration of highways and to a reassessment by jury was similar to the proVisions Of Our present statutes, excepting that the assessment was first made by the county commissioners, instead of by a Committee. In the Case cited, the claim having been made that the defendants were under the statute entitled to have the damageS, Which had been asSessed by the county commissioners, and Which Were claimed to be excessive, reasSessed by a jury, this court said: “Persons whose lands are taken alone have this right and privilege, but not the public; for it is the public by its OWI) agents Who have taken the land from others at its just Value, as fixed by themselves—the legally constituted agents of the government—and certainly the public cannot complain of the judgment of their own agents. This We are Satisfied is the theory, and We See nothing in the statute which leads us to form a contrary opinion.” In the case before us, the Superior Court should have denied the application of the

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4. TRIAL ($ 252*)—INSTRUCTIONS—REQUESTs -APPLICABILITY TO EVIDENCE. In an action by a building contractor for the Value of labor and material furnished, an instruction that plaintiff could not disregard the contract and recover on a quantum meruit was properly refused where it did not relate to the issues as framed and tried, and since it was a self-evident proposition. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 596–612; Dec. Dig. § 252.*] 5. CONTRACTS ($282*)—BUILDING CONTRACTS —SATISFACTION OF OWNER. Under a building contract requiring the work to be done to the owner's satisfaction, honest dissatisfaction prevents recovery, and hence in an action by the contractor it was error to refuse to so instruct.

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V, DALEY 1053 WHEELER, J. The plaintiff sued upon an express agreement on his part to furnish material and render Service in the COnStruction of a building for the defendant upon his agreement to pay therefor the reasonable Value. The defendant pleaded a general denial, and for a second defense alleged that the plaintiff agreed to do said work for $450, Of Which Sum he had paid $300, and tendered the plaintiff the balance; and that the plaintiff agreed to COnStruct Said building in a skillful and workmanlike manner, and to the satisfaction of the defendant, and that he did not SO COnStruct the building. One ruling on evidence is complained of. [1] 1. The plaintiff in his own behalf testified he COuld not tell the amount of labor he furnished the defendant without looking at the bill (Exhibit H) of these items which, upon inquiry, the WitneSS Said Was an Original record Of the time of his men on the job. Thereupon the court admitted it in connection with the testimony of the witneSS OVer the Objection that On its face it appeared that it was not an original record. Upon Cross-examination, the Witness testified he kept a time book containing the time of his men on the different jobs he was doing, that at the end of this job he tranSCribed from the time b00k the time On the job to the sheet, Exhibit H, and placed this with bills for material used on this job in an envelope duly marked, and that he kept no Other book and the method adopted in this case was his regular method of business on each job. The Objection that the Sheet Was not an Original record proceeded upon the theory that its admissibility depended upon itS Containing Original entries from a book. The time book, if in existence, or a copy of it, if not in existence, would have been admissible upon proof that it contained a daily account Of the plaintiff’s business made in the regular course of his business. Smith V. Law, 47 Conn. 431, 435. The time book Was not in existence, and a Sheet Of paper, though containing a correct transcript of a page of the time book, is not a copy of the book. It cannot be held to be Similar to a sheet from a loose leaf ledger for that is a part Of a book kept in Sequence, and On its face bears the Stamp Of trustWOrthiness, while this sheet never was a part of a book but is independent of relation to any other sheet. Reilly V. Torkoman, 78 Conn. 645, 63 Atl. 516. It would be difficult to support its admission upon the facts before the court at the time it WaS made; the factS SubSequently appearing make the exhibit admisSible. The WitneSS Was asked to testify as to the details of a transaction which are proper Subjects of book entries. He cannot do this Without reference to the reCOrd Of these items as made by him and copied from a time b00k Which he himself kept in the day and time. He does not attempt to use the - paper to refresh his recollection. He knows the paper contains an accurate account of the time as kept by him, and in effect he so states. It was therefore admissible in connection With his Statement of the accuracy Of the account When made. A memorandum of details may refresh the recollection Of the WitneSS Who made it Or SaW it made; if SO, the recollection of the Witness must be given and the memorandum. excluded. Palmer v. Hartford Dredging Co., 73 Conn. 182, 187, 47 Atl. 125. Or, as in this case, it may not refresh his recollection, but if he knows it to correctly state the detailed facts of Which he has no present memOry, it may, in COnnection With his testimony, be admitted as a memorandum of details essential to the full proof of the transaction, and in Substance this WaS the basis upon which this was admitted. Curtis v. Bradley, 65 Conn. 99, 114, 31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177. The defendants’ request that the Court charge the jury that if they find Exhibit H was not an Original entry they should disregard it as evidence Was properly refused. [2] The defendant complains of the court's failure to Comply With his request to charge as to the duty of the jury in Case there was an exact equipoise in the evidence. 2. The court instructed the jury that “the burden Of proof iS upon the plaintiff to establish by a fair preponderance of the evidence the essential allegations of his complaint” and it instructed the jury fully as to what it regarded as these elements. There can be no equipoise in the evidence where there is a preponderance of proof and a preponderance in Support Of the elements essential to a cause of action. A reading of the entire charge makes it reasonably certain the jury must have understood what it was incumbent upon the plaintiff to prove and that no harm resulted, although this request might properly have been given. City Bank’s Appeal, 54 Conn. 273, 274, 7 Atl. 548; Wolfe v. Ives, 83 Conn. 178, 76 Atl. 526. The defendant Claims the Court erred in not charging that the plaintiff must establish by the preponderance of the evidence the value of the services and material, but these were plainly stated to be among the elements of proof necessary to the plaintiff's case, and the jury had been told that the plaintiff must establish by a fair preponderance of the evidence the essential elements Of his case. [3] 3. Another claimed error is the neglect of the court to charge, as requested, falsus in uno, falsus in omnibus. This request was a mere statement of a principle

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

where do we find facts stated from which the application of the maxim might be made. Allen v. Rundle, 50 Conn. 9, 33, 47 Am. Rep. 599. The court's duty was to charge the jury as to the principles applicable to the facts of the case, not as to abstract principles of law not supported by the facts of the case. Morris V. Platt, 32 Conn, 82; Sisson V. Stonington, 73 Conn. 348, 354, 47 Atl. 662. [4] 4. The defendant's request that the court charge the jury that if the plaintiff made an express contract and found he could not do the work thereunder at a profit he could not disregard the contract and recover On a quantum meruit has no relation to the issues as framed or tried to the jury, and in addition was a self-evident proposition. [5] 5. As We understand the charge the Court left the issues to the jury as follows: If they found proven the express contract claimed by the plaintiff they should ascertain the reasonable value of the material and services furnished, deduct the payment made by the defendant, and render a verdict for the balance with interest. If they found the plaintiff expressly agreed to construct the building for $450, and did it, they should deduct the payment made of $300, and render a Verdict for the $150, with interest if they found no tender to have been made, and without interest if they found legal tender to have been made. If they found no express contract, but found that the plaintiff furnished material and rendered Service they should ascertain their fair and reasonable market value, deduct the payment made, and render their verdict for such sum with interest. The Serious objection to the charge is the refusal of the court to comply with the defendant's request that, “If the jury believe and find that the plaintiff agreed to do the work in connection with the erection of the building for the defendant to the satisfaction of the defendant and they further find that the defendant is not satisfied with the work, the plaintiff cannot recover, and it makes no difference whether the defendant fails to be Satisfied is reasonable or unreasonable.” The defendant made the subject of this request a part of his second defense. The finding is that the defendant offered evidence to prove and claimed that he had proved “that the Work was to be performed * * * to the satisfaction of the defendant.” "And the court in its charge recognized this defense as an issue before the jury by including it among the “principal issues” to be determined by the jury. Nowhere in the charge does the court explain to the jury the legal relation of this issue to the case. The verdict imports a finding adverse to the contract to build for a stated sum as Claimed by the defendant, but it does not necessarily import a finding that the building was not to be constructed to the satisfaction Conn.)

was in fact to his satisfaction. Such a defense is a complete one. An honest dissatisfaction when proven will prevent a recovery. In an action on a Written contract we Said: “It is competent for parties to a contract for sale to agree that the thing which is the Subject of the contract shall be satisfactory to the Vendee, and that the contract shall not be binding on the vendee unless, after examination of the thing or at the time fixed for delivery and payment, the vendee is Satisfied with the thing.” Libernum v. Beckwith, 79 Conn. 320, 65 Atl. 153; City of Hartford v. Hartford El. L. Co. et al., 65 Conn. 324, 334, 32 Atl. 925; Zaleski v. Clark, 44 Conn. 218, 223, 26 Am. Rep. 446. The defendant was entitled to a charge upon this subject. InStead, the jury are told that in the event they find the contract proven as claimed by the defendant they should find a verdict for at least $150 in favor of the plaintiff, and immediately after adverting to the principal issues to be determined, including the issue of satisfaction, the jury are instructed “and in addition to that, however, the amount, which the defendant owes,” thus not only failing to explain the legal aspect of this defense, but practically removing it from their conSideration. Other criticisms of the charge do not require discussion.

There is error, and a new trial is ordered. The other Judges concurred.

(84 Conn. 691)


(Supreme Court of Errors of Connecticut. Dec. 19, 1911.)

MANDAMUS (§ 154*)—PROCEEDINGS-ALLEGATION OF RIGHT TO RELIEF. Gen. St., 1902, § 4670, provides that no person shall keep a maternity hospital without a license therefor from the officials of the city Or to Wn chargeable with the care of the public health, and provides, further, for the conduct and management of such hospitals, for inspection by the health officers of the city or town where the hospital is located, to detect improper treatment of any child therein, or any other improper management or conduct, and for the removal of any articles found therein believed to present evidence of crime COmmitted therein. eld, that the section providing that “no person shall keep a maternity hospital,” etc., which imposes upon a board of health an implied duty to license such a hospital, must be construed to grant a discretionary power to issue such license, and the right to determine the character and moral fitness of the applicant, so that a petition for mandamus to compel the issue of such a license was insufficient, where it did not allege that the applicant was a suitable person to be licensed, or that the defendants, in refusing a license, did not exercise a reasonable discretion.

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Appeal from Superior Court, Hartford County; William H. Williams, Judge.

Mandamus by Martin F. Adleman to compel the issuance of a license by the Board of Health of the City of Hartford. From a judgment for defendants upon a motion to quash the alternative writ, plaintiff appeals. NO error.

Stewart N. Dunning, for appellant. Wil

liam W. Hyde, for appellees.

THAYER, J. The plaintiff claims that he is entitled to a license to keep a maternity hospital, under section 4670 of the General Statutes, which provides that: “No person shall keep a maternity hospital or lying-in place unless he has previously obtained a license therefor duly issued by the mayor or board of health of the city or health officer of the town wherein such maternity hospital or lying-in place is situated.” He made an application for Such a license to the defendants, which was refused. He claims that the Statute gives the board of health no disCretion in the matter, but that they are bound to give a license to every applicant, regardless of character or qualifications. The Statute in terms imposes no duty upon the board of health to license any one to conduct such a hospital or place. Any duty which is thereby imposed upon the board is an implied One. Whether Such a duty is implied and, if so, the nature, extent, and limitations of the duty are to be determined from the act itself, its language, and the purpose intended to be accomplished by it. The provisions of the act, subsequent to the portion above quoted, show that the purpose Of the act Was to regulate the business of keeping such places as are therein described. Such business, when properly conducted, is legitimate and of public benefit; but that it affords opportunity for the commission and Successful concealment of crime is apparent. The act contemplates this and provides for the Visitation and inspection of such places, when licensed, for the purpose of detecting the improper treatment of any child, and the discovery and removal of any article which the visiting authority thinks presents evidence of any crime having been committed therein. It is not to be presumed that the Legislature, contemplating, as it evidently did, the danger and possibility of such plaCeS being used for the perpetration and concealment of Crime, intended, in impliedly imposing upon boards of health the duty of “duly licensing” persons to carry on the busineSS, that they Shall license any and every person who shall make application for such a license. It must have been intended that the board Should have Some discretion in granting Such license, and that the Character and moral fitness of the applicant should be considered before granting a license. It Cannot be Supposed that it was intended that a license should be granted to a person already under conviction for the violation of this very statute, or for Some other Offense involving moral turpitude. It is to be implied from the fact that all persons are forbidden to pursue this occupation, unless they have procured a license from the board of health, and from the other provisions of the act referred to, that it is the duty Of that board to iSSue licenses to Suitable perSOnS to COnduct the busineSS in suitable places; that it does not lie within the absolute discretion of the board to grant

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

Or Withhold a license as it Shall See fit, but that it shall exercise a reasonable discretion in the performance of such duty.

There is no allegation in the application or in the alternative Writ that the applicant is a suitable person to be licensed, or that the defendants in refusing him a license did not exercise a reaSOnable discretion. Without the allegation and proof of these facts, the plaintiff was not entitled to the writ prayed for, and the motion to quash was properly Sustained.

There is no error. The other Judges conCurred.

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