Page images
PDF
EPUB
[ocr errors]

to object thereto by way of appeal or otherwise,” are estopped by laches from the equitable relief sought. The finding disposes of this. The plaintiffs never had notice or knowledge of the re-establishment of the lost boundS until after the town had Voted to “improve” the highway, and the engineers had driven stakes indicating the line claimed South of the true South line of the highway. Seeing this, the plaintiffs immediately protested to the selectmen. Their opportunity to appeal from the re-establishment decision had been long Since lost by lapSe Of time through no fault of theirs. [11] Assignments of errors are limited to the Claims Of law made in the trial COurt. Hence this defendant Cannot avail itself of a claim of laches based upon the failure of the plaintiffs to act from the time they knew of the re-establishment decision in the Spring of 1909 until this action was begun on NOvember 5, 1909. If the defendant were in a position to properly make this Contention, the finding would conclude it. So far as appears, the plaintiffs did not know of the proposed contract between the selectmen, the state, and the contractor before it was entered into, nor does it appear when such knowledge came to the plaintiffs. AS Soon as the plaintiffs knew of the proposed invasion of their rights, they protested to the town officials. They could not be expected to anticipate that the town Would disregard their protest, and enter into a contract of the character of that disclosed by the record. There was no inexcusable delay in the protection of their interests; nor such a delay as to prejudice the defendant's rights in view of the protest made it. Hartford V. Mechanics' Savings Bank, 79 Conn. 38, 41, 63 Atl. 658; Byrne V. Schuyler, 65 Conn. 336, 355, 31 Atl. 833, 28 L. R. A. 304. [12] Upon the facts found there was no duty resting on these plaintiffs to have seAcured an earlier interVention of judicial action; and, without breach of duty, there can be no laches. Allis v. Hall, 76 Conn. 322, 334, 56 Atl. 637. The rulings on evidence complained of are not ground for reversible ‘OFTOT. [13] The offer of the defendant to prove the establishment of building lines in 1902–04 was properly excluded. This evidence was Offered to ShOW that the South lines Of Farmington avenue COrresponded With the South line of the re-establishment decision, and that the plaintiffs had notice of these building line proceedings. The time in Which the plaintiffs could have appealed from the deci'sion of the selectmen had long since passed, and for this reason the offer, for such a purpose, was immaterial and invited Collateral inquiry. [14] For the purpose of proving the true south boundary of this avenue, a witness 68

[blocks in formation]

years of age, who had been born near the place in question and had lived there during his youth, was asked by the plaintiffs this question: “When you were a boy, how were these trees regarded with relation to the highway?” The witness replied they were generally considered the South boundary of the highway. It would be difficult to Support this question, either in its substance or its form, which was not objected to. It is clear that its admission did not harm the defendant, since it subsequently offered evidence to prove, and claimed to have proved, facts in accord with the answer given.

The corrections of the finding should be denied. The evidence amply supports the finding.

There is no error. All concur.

(84 Conn. 640) STATE v. TRIPP. (Supreme Court of Errors of Connecticut. Nov. 1, 1911.)

1. TRIAL (§ 278*) – INSTRUCTIONS — ExCEPTIONS–SUFFICIENCY. Exception to instructions is insufficient, if it fails to designate the parts complained of. [Ed. Note.—For other cases, see Trial, Cent. Dig. § 689; Dec. Dig. § 278.*]

2. CRIMINAL LAW (§ 429*) – EVIDENCE – ADMISSIBILITY. Under Pub. Acts 1907, c. 167, § 3, as amended by Pub. Acts 1909, c. 55, § 2, authorizing issuance of kennel licenses, a certificate issued was not inadmissible in prosecution for killing dogs belonging to the kennel because carelessly drawn by the town clerk; it appearing that application for the license was duly made, that the required fee was paid, and that the certificate was intended to be a kennel liCenSe. [Ed. Note.—For other cases, Ilaw, Dec. Dig. $429.*]

3. ANIMALS (§ 4*) – DOGS – “KENNEL’’ CENSES—VALIDITY. A kennel license issued under Pub. Acts 1907, c. 167, § 3, as amended by Pub. Acts 1909, c. 55, § 2, is not vitiated because part of the dogs were kept at the owner's house; the word “kennel” not meaning the house or place in which the dogs are kept, but a pack or collection of dogs usually kept or bred for hunting, or for sale. [Ed. Note.—For other cases, Dec. iDig. § 4.*] 4. ANIMALS (§ 4*)—DOGS—KENNEL LICENSES —VALIDITY. That a kennel license Was taken out May 2d, instead of May 1st, as required by Pub. Acts 1907, c. 167, § 3, as amended by Pub. Acts 1909, c. 55, § 2, does not vitiate it for the remainder of the year. [Ed. Note.—For other cases, Dec. Dig. § 4.*]

5. ANIMALS (§ 45*)—REGISTERED Dogs—KILLING—DEFENSES. In a prosecution under Pub. Acts 1907, c. 167, § 15, for killing registered dogs, it is unnecessary to show that they wore the tag or plate required by Pub. Acts 1909, c. 55, § 2, to be worn by dogs at large. [Ed. Note.—For other cases, see Animals, Dec. Dig. § 45.*]

see Criminal

LI

see Animals,

see Animals, Appeal from Superior Court, Tolland County; Gardiner Greene, Judge.

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

Perry G. Tripp was convicted of killing dogs, and he appealS. Affirmed.

Information charging the accused with having, in Violation Of the Statute, unlawfully killed two dogs, duly registered and licensed under a kennel license in the town of Somers, brought to the superior court of Tolland county, and tried to the jury, before Greene, J. Verdict of guilty, and a fine of $50 imposed. Appeal by the accused. No CI'l'OI".

Samuel A. Herman and John E. Fisk, for appellant. Charles Phelps, for the State.

HALL, C. J. The two counts of the information are based upon chapter 167 of the Public Acts of 1907, as amended by chapter 55 of the Public Acts of 1909.

Section 2 of the act of 1909 provides that “any owner or keeper of a kennel may apply, on or before the first day of May, to the town clerk Of the town in which Such kennel is located”; that “the town clerk Shall issue to

Such applicant a kennel license for one year from the first day of May, which license shall specify the name of the kennel, the name of the owner and the keeper of the same”; that “every dog kept in such kennel shall, when at large, wear a collar bearing a metal tag Or plate upon Which Shall appear the number of the kennel license, the name of the town issuing such license and the year thereof, which plates or tags shall be furnished by the town clerk. * * * * Section 4 of the act of 1909 provides that the dog warden shall take into his custody any dog found at large Without the required tag or plate on its collar, and that after certain notice shall have been given of the capture Of the dog, unleSS Within a fixed time it shall be redeemed by its owner by payment of a sum, in no case exceeding three dollars, it shall be killed by such warden. Section 13 of the act of 1907 provides that: “Any person may kill any dog which he finds pursuing, Worrying or Wounding any Sheep, lambS Or Other dOmeStic animals. * * * * Section 15 of the act of 1907, the provisions | of which are made applicable to dogs belonging to a licensed kennel, provides that: “Every person Who Shall Steal or confine and secrete any registered dog * * * or who shall unlawfully kill or injure any such dog Shall be liable to the OWner in a civil action,

pursuing, Worrying, or wounding sheep; secOnd, because it was not shown that the dogs were duly licensed; and, third, because it did not appear that at the time the dogs were killed their collars bore metal tags or plates upon which appeared the number of the kennel license, the name of the town issuing the license, and the year thereof, or that the collars upon the dogs bore any tag or plate.

Whether the dogs were found pursuing, Worrying, or Wounding sheep was a question of fact which the jury must have decided against the claim of the defendant.

[1] The defendant's exception g, quoting a page of the charge of the trial judge upon this question, and to a large part of which it was clearly not intended to except, fails tO properly designate the portions of the charge complained of, and will therefore not be considered.

[2] The finding shows that as bearing upon the Second of Said claims there was evidence: That a certificate of license was issued to Field & Cooley on the 2d of May, which was Monday; that in making out the certificate the town clerk used a printed form designed for a dog license; that F. & C. was the name of the kennel for which a license was applied for, and of which Field & Cooley were the owners and keepers; and that Field paid to the town clerk $50 for the license, and $2.50 for 25 tags. The following is the form of certificate as filled out and delivered to Field by the town clerk:

“Dog License.” Kennel License Name F. & C. This certifies that Field and Cooley have registered in the office of the town clerk of the town of Somers, state of Connecticut, a male dog, owned or kept by h , and described as follows: Name . . . . . . . . . . . . . . Breed. . . . . . . . . . . . . . Color . . . . . . . . . . . . . . Size . . . . . . . . . . . . . . Tag No. K. L. 22. Said dog is hereby licensed until the first day of May, 1911, in accordance with acts passed by the General Assembly of the state of Connecticut. The license fee of fifty dollars has been paid. Date: May 2, 1910. 25 Tags, $2.50. C. S. Fuller, Town Clerk.

The following Words and figures of the certificate were in writing: “Kennel License Name F. & C.” on the first line, “Field and Cooley” on the second, “Somers” on the fourth, “NO. K. L. 22” on the ninth, the last figures of the two dates, the word “fifty” on the thirteenth line, the date “May 2,” the Words “25 Tags, $2.50,” and the signature.

and shall be fined not more than two hundred . The remainder of the certificate was printed. dollars, or imprisoned not more than six . This certificate was certainly very caremonths or both.” lessly and inartificially drawn. If it was

The information in this case alleges that found necessary to use the blank form adaptthe dogs in question, when killed, were duly 'ed to a dog license, the words peculiarly licensed under a kennel license, and wore applicable to Such a license should have been collars with metal tags attached, marked, erased, and it should also have been more and numbered-as required by law. | clearly stated that Field & Cooley were the

Upon the trial the accused claimed: That Owners and keepers of the kennel. Notwithhe should be acquitted, first, because the standing these defects in the certificate, and

[ocr errors]

are attributable to the town clerk Who prepared it, rather than to the owners of the kennel, who were only required to apply for a kennel license and pay the $50 fee therefor which they did, we think the license Should not be held to be Void. The CertifiCate ShOWS On its face that it Was intended to be a certificate of a kennel license. It states the name of the kennel, the names Of perSOnS Who Were in fact the OWnerS and keepers of the F. & C. kennel, although not expressly so described in the certificate. That they were the owners and keepers was also indicated by the name of the kennel stated in the Certificate. The trial Court COmmitted no error in admitting the certificate in evidence, against the defendant's objection. [3] The fact that a part of the pack of fox hounds Which formed the licensed kennel were kept at the house of each of the OWners in the same town did not Vitiate the license. The Word “kennel” as used in the Statute does not mean the hOUSe Or place in Which the dogs are kept, but a pack Or Collection of dogs usually kept or bred for hunting, or for Sale. [4] That the license Was iSSued. On the 2d of May did not render it invalid, even if it Was not applied for until that day. Although the OWner of a dog or kennel may be subjected to a penalty for not having applied for a license on or before May 1st of each year, his failure to do SO Would not render it illegal for the town clerk to afterWards issue a license, as Was done in this case, for the year following the 1st of May, upOn payment Of the full license fee for that year. [5] The accused requested the court in subStance to charge the jury that in Order to convict the state must prove, not only that the dogs when killed were duly licensed, but also that they Wore collars bearing the metal tags or plates required by statute. The court did not so charge, but in substance instructed the jury that, while the state must prove that the dogs Were duly licensed, it was not required to further prove that the dogs were duly tagged, and that if the dogs Were duly licensed, and Were at large without tags, the fact that they were without tags would not justify the accused in killing them. This instruction Was correct. The OffenSe described in Section 15 is the unlawful killing of a registered dog, not of a dog registered and tagged. The placing of a tag Or plate upon the dog's collar is not a part of the registering. A dog, though not at large, is required to be registered. The tag or plate is only required to be worn when the dog is at large. Even the dog Warden is not authorized to immediately kill a dog, merely because he finds it at large without the required tags or plates upon its collar. He may take it into his custody, but he can

C. H. EDDY & CO. V. FIELD

249

not kill it, if the owner appears in due season and pays the sum required to redeem it. The accused did not claim to have shot the dogs because they were not properly tagged, but because they were pursuing and Worrying his sheep, and whether they were or not Was the decisive question of the case. There is no error. All COnCur.

(85 Vt. 188) C. H. EDDY & CO. V. FIELD.

(Supreme Court of Vermont. Windham. Oct.

16, 1911.) 1. APPEAL AND ERROR (§ 274*)—ExCEPTIONS —CONSTRUCTION. Where, in an action for conversion of certain property, the findings of the referee do not show conversion, but the court erroneously found against the evidence for plaintiff, that error is reached by an exception to the rendition of the judgment. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1631–1645; Dec. Dig. § 274.*] 2. TRovER AND CONVERSION (§ 1*)—ACTS CONSTITUTING ‘‘CONVERSION.” A contract of sale of soda in bottles stipulated that the bottles should remain the property of the seller, and that the buyer at his own expense should return them. The buyer delivered them to a carrier's agent, consigned to the seller, and they were loaded and waybilled. Held, that the buyer was not guilty of conversion, which consists either in the appropriation of the property to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in defiance of the owner's rights, or in withholding possession from the owner under a claim of title inconsistent with his title. [Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. $ 1.* For other definitions, see Words and Phrases, Vol. 2, pp. 1562–1570; vol. 8, p. 7618.]

Exceptions from Windham County Court; E. L. Waterman, Judge.

Action by C. H. Eddy & Co. against C. C. Field. There was a judgment for plaintiff, and defendant excepts. Reversed, and judgment for defendant for COStS.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, J.J.

Chase & Daley, for plaintiff. F. W. Tuttle, for defendant.

ROWELL, C. J. This is trover for 2,000 and more soda bottles. The case was referred. Judgment for the plaintiffs on the report, to which the defendant excepted. The facts are these, shortly stated: The plaintiffs are bottlers of Soda in Brattleboro, and Shippers thereof for consumption to Various points and places. The defendant is a merchant at Ferrisburg and North Ferrisburg, to whom the plaintiffs sold and shipped during Such a time thousands of bottles of their product, the terms of the sales being that the bottles should be and remain the property of the plaintiffs and be returned to them by the defendant, they paying the freight each Way. The plaintiffs kept an account with the defendant for the Soda, and a memoranda account for the bottles in which it was Shipped, wherein, on receipt of the empty bottles returned, they were to give the defendant credit therefor. At the time this suit was brought, the plaintiffs had not actually received the bottles sued for, but the defendant had delivered them to the Station agents at Ferrisburg and North Ferrisburg, consigned to the plaintiffs at Brattleboro, and they were loaded and waybilled. The referee submits Whether on the facts found the bottles Were delivered to the plaintiffs before suit brought. If they were, he finds for the defendant. The court evidently thought they were not, and so adjudged for the plaintiffs. [1] This was error, for the report discloses nothing tending to show conversion, and that defect is reached by the exception to the rendition of the judgment, as it was necessarily involved in its rendition. [2] It is sufficiently accurate and comprehensive for present purposes to say, as is said in the Vermont Digest, c. 2768, pl. 12, that in the Sense of the law of troVer a conversion consists either in the appropriation of the property to the party's own use and beneficial enjoyment, Or in its destruction, Or in exercising dominion over it in exclusion or defiance of the owner's right, or in withholding possession from the owner under a claim Of title inconsistent With his title. Here the defendant did none of these things. Judgment reversed, and judgment for the defendant to recover his costs.

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

(85 Vt. 70) DAVIS W. RANDALL.

(Supreme Court of Vermont. Windham. Oct. 9, 1911.)

1. APPEAL AND ERROR (§ 1058*)—HARMLESS

ERROR – EXCLUSION AND SUBSEQUENT AD

MISSION OF EVIDENCE.

. Defendant may not complain of the exclu

sion of a question to plaintiff whether he wrote a letter; plaintiff having shortly afterwards admitted writing it, and it having been received in evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4195-4206; Dec. Dig. § 1058.*]

2. EXCHANGE OF PROPERTY (§ 13*)—EVIDENCE —TERMS OF CONTRACT. On the question whether the exchange of plaintiff's oxen for defendant’s horse was absolute, as contended by defendant, or, as contended by plaintiff, on the condition that if the horse proved to be over a certain age, or failed to get over its lameness, defendant should take it back , and pay him $125 for the oxen, the fact of the oxen being worth much less than $125 is admissible, as tending to show the contract was not as claimed by plaintiff. [Ed. Note.—For other cases, see Exchange of Property, Dec. Dig. § 13.*]

3. TRIAL (§ 125*)—ARGMUENT OF COUNSEL— APPEAL TO SYMPATHY. The statement in argument of plaintiff's counsel, in an action in which the issue was whether the exchange of plaintiff's oxen for defendant's horse, was absolute, as contended by defendant, or, as contended by plaintiff, on the condition that if the horse proved to be over a certain age, or did not get over its lameness. defendant would take it back and pay plaintiff $125 for the oxen, that a verdict for defendant would take plaintiff's oxen from him, and give him nothing for them, was an unwarranted appeal to the Sympathy of the jury. [Ed. Note.—For other cases, see Trial, CentDig. §§ 303-307; Dec. Dig. § 125.*] 4. TRIAL (§ 62*)—RECEPTION OF EVIDENCE. Though a count of the declaration set up a sale of oxen to defendant at a fixed price, yet, there being no evidence thereof, defendant was not entitled to give evidence in contradiction of the allegations.

[ocr errors][merged small][merged small]

POWERS, J. The plaintiff exchanged a pair Of Oxen With the defendant for a horse. This horse Was of uncertain age and was lame, and the plaintiff claimed, and gave evidence tending to ShoW, that it WaS Stipulated in the trade that if the horse turned out to be over 12 years old, or failed to get over its lameness, the defendant should take it back and pay $125 for the OXen. The defendant denied this, and claimed, and gave evidence tending to show, that the transaction was a Simple exchange of property, WithOut any conditions Or Special agreements. When the case was submitted to us, it was orally agreed by counsel that a transcript of the evidence WaS to be treated as referred to and made to control, though the exceptions did not contain Such reference.

[1] During the cross-examination of the plaintiff, he was shown a letter, signed by him and addressed to one Wheeler, wherein it Was Stated that the horse in question WaS a “good worker and an extra good walker,” and was asked if he wrote or caused to be written a letter containing that Statement. This question was excluded, and an exception allowed the defendant. Shortly after this ruling, the witness admitted Writing the letter, and it was received in evidence and read to the jury. So the defendant, having received the full benefit of the letter and its

[ocr errors]

contents, is not in a position to complain, and this exception is unavailing. [2] As bearing on the probability of his making the special agreement testified to by the plaintiff, the defendant offered to show the condition and Value of the Oxen at the time of the exchange, expecting, as counsel Stated, to show that the cattle were worth much less than $125. This was excluded, and the defendant excepted. It is true, as Suggested by the court, that the value of the property was not put in issue by the plead. ings, and the general rule is that the evidence must correspond with the allegations and be confined to the point in issue. But facts affording a reasonable presumption or inference as to the principal fact or matter in iSSue are not excluded. Any fact, though it be collateral, which renders a material fact more probable or improbable, is proper evidence, and may be considered in determining whether that factS existS, Tufts V. Chester, 62 Wt. 353, 19 Atl. 988. So, when the parties to a contract disagree as to its terms, and the evidence thereof is conflicting, it is often permissible to show the value of the property involved. Thus, in Houghton v. Clough, 30 Vt. 312, the question was whether the reconveyance of certain land was in settlement of all Or only a part of the notes secured thereon, and it was held that it was competent for the plaintiff, who sued on One of the notes, to show that the value of the land at the time of the reconVeyance Was not equal to the amount of the notes. In Kidder v. Smith, 34 Vt. 294, the question WaS aS to the price agreed upon in the Sale of certain personal property, and it was held that it was competent to show the value of the property at the time of the Sale, as tending to show what the contract really was. In Bedell v. Foss, 50 Wt. 94, the question Was Whether the defendant agreed to pay the plaintiff's Claim. On a certain horse in defendant's possession, and it was held that evidence that the value of the horse was leSS than the amount of the claim was admissible. In State v. Donovan, 75 Vt. 308, 55 Atl. 611, it was material and important to ShOW the Original terms of the Written contract which the respondent was charged with altering, and it was held that evidence of the Value of the property involved was admissible. In Green V. Dodge, 79 Vt. 73, 64 Atl. 499, the question was as to the amount of rent stipulated for in a lost lease, and it WaS held that eVidence Of the rental Value of the premises was admissible to ShoW the probable rent agreed upon. If, as the defendant claimed, the cattle which he acquired by the trade were worth less than $125, it would be improbable that he Would agree to pay that price for them in Case the hOrSe failed to recover. For What it was worth, this evidence should have been

[blocks in formation]

received, and the exception to its exclusion must be sustained. [3] Subject to exception, counsel for the plaintiff was allowed to say in argument, in substance, that a verdict for the defendant Would take the plaintiff's oxen from him and give him nothing for them. This argument cannot be approved. As suggested by defendant’s counsel when he made his objection, the plaintiff received the horse in the trade, and whether he was entitled to anything more depended upon how the jury found the facts to be. With the consequences of their findings the jury had nothing to do, and a consideration thereof WOuld be improper. The argument was an unwarranted appeal to the Sympathy of the jury, and should not have been allowed. [4] There was no error in rejecting the defendant'S Offer to ShoW that he did not purchase the Oxen. Although the Second count of the declaration set up a Sale of the oxen at a fixed price, there was no evidence tending to establish these allegations. Consequently the defendant was not entitled to give evidence in contradiction. Besides, he testified fully as, to what the trade was, and the evidence Offered WOuld have added nothing to his statement. Reversed and remanded.

(85 Vt. 97) RAND V. BORDO.

(Supreme Court of Vermont. Oct. 9, 1911.)

1. FRAUD ($ 57*)—ACTIONS-ADMISSIBILITY OF EVIDENCE. In an action for deceit in the exchange of horses, where plaintiff's evidence tended to show that the horse he received of defendant, if Sound and free from defects, as defendant represented, would have been worth Substantially as much as the horse he gave in exchange for it, evidence of the kind and value of the horse he gave defendant was material. [Ed. Note.—For other cases, see Fraud, Dec. Dig. § 57.*] 2. APPEAL AND ERROR ($ 690*) – REVIEW MATTERS NOT APPARENT OF RECORD. In an action for deceit in the exchange of horses, the admission of testimony for plaintiff showing the defective condition of the horse he received when being driven by defendant's son, does not show error, where the exception does not show when the occasion was. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2897–2899, 2902–2904; Dec. Dig. § 696.' 3. APPEAL AND ERROR (§ 241*) – RECORD EVIDENCE. A statement in a ground of motion for a verdict that “the plaintiff's testimony is referred to” is insufficient to bring the testimony before the Supreme Court for review. [Ed. Note.—For other cases, see Appeal, and # Cent, Dig. §§ 1413–1416; Dec. Dig. § 241.

4. APPEAL AND ERROR ($ 706*) - RECORD — QUESTIONS PRESENTED FOR REVIEW.

Where neither the declaration nor a copy

thereof is furnished the Supreme Court, an ex

Windham.

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

« ՆախորդըՇարունակել »