WHITCOMB v. WHITCOMB

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-7

sought, introduces a new cause of action, which is not permissible.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]

Exceptions from Franklin County Court; Zed S. Stanton, Judge.

Action by Albert Sowles against the Hartford Life Insurance Company. A motion of defendant was overruled, and it brings exceptions. Judgment reversed, amended declaration dismissed, and cause remanded.

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

circumstances all this court can do is to assume that the finding was upon competent and sufficient evidence. Martin v. Wells, 43 Vt. 428; Sargent v. Burton, 74 Vt. 24, 52 Atl. 72. It must stand, therefore, unless it appears on its face to be erroneous. The orator says that a patent cannot be owned by a partnership. But this cannot be so, for a patent right and the privileges thereby granted are incorporeal personal property (De La Vergne Refrigerating Mach. Co. v. Featherstone, 147 U. S. 209, 13 Sup. Ct. 283, 37 L. Ed. 138), and are entitled to the same rights and sanctions which attend other property (Cammeyer v. Newton, 94 U. S. 225, 24 L. Ed. 72; Densmore v. Scofield, 102 U. S. 375, 26 L. Ed. 214). They may be transfer- plaintiff. C. G. Austin & Sons, for defendred by oral agreement, as was here done, and such agreement is not within the statute of frauds, nor within. U. S. R. S. § 4898 (U. S. Comp. St. 1901, p. 3387), requiring assignments to be in writing, and will be specifically enforced in equity when properly proved. Dalzell v. Dueber Watch Case Mfg. Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749; Harrigan v. Smith, 57 N. J. Eq. 635, 42 Atl. 579; Searle v. Hill, 73 Iowa, 367, 35 N. W. 490, 5 Am. St. Rep. 688; Hammond v. M. & H. Organ Co., 92 U. S. 724, 23 L. Ed. 767.

[7, 8] And while it is true that the partnership did not acquire title to the patent simply by reason of the fact that partnership funds were used in obtaining it (Burr v. De La Vergne, 102 N. Y. 415, 7 N. E. 366; Belcher v. Wittemore, 134 Mass. 330,, it did become, as it lawfully might (Fresno Home Packing Co. v. Fruit Cleaning Co., 101 Fed. 826, 42 C. C. A. 43; Button Holeing Co. v. Somerville, L. T. [N. S.] xxxviii, 878), the equitable assignee thereof by force of the agreement.

[9] A compulsory assignment is within the jurisdiction of the court of chancery, and the decree below ordering such an assignment by the orator and appointing a trustee to act in case of his refusal was correct. Ager v. Murray, 105 U. S. 126, 26 L. Ed. 942. Decree affirmed and cause remanded. Let a new time be fixed by the court of chancery within which the orator shall assign to the receiver the patent in question.

(85 Vt. 56)

SOWLES v. HARTFORD LIFE INS. CO.
(Supreme Court of Vermont. Franklin. Sept.
23, 1911.)

PLEADING (§ 248*)-AMENDMENT-NEW CAUSE
OF ACTION.

Amendment of a declaration seeking to recover the excess of assessments which defendant had demanded and received of plaintiff in violation of a provision of a policy on his life issued by it that, after he reached a certain age, his assessments should not exceed a certain amount, by averment of breaches of other provisions of the policy, for which recovery is also

Hiram P. Dee and M. H. Alexander, for

ant.

HASELTON, J. This is an action of assumpsit. The original declaration was in four counts. After the defendant had pleaded, the plaintiff filed an amended declaration, which also was in four counts. The defendant filed a motion to dismiss the amended declaration on the ground that it introduced a new cause of action, and on other grounds. This motion was overruled. The defendant excepted, and the case was passed to this court without further proceedings in the

cause.

In the original declaration the first count says that by virtue of a life insurance policy, numbered 103306, issued by the defendant company in 1888, upon the life of the plaintiff, he was to pay to the company, in order to keep the policy in force, quarterly assessments and expense dues, not to exceed certain sums named, after he obtained the age of 65 years; that he reached that age in 1898; and that thereafter, in disregard of the provision of the contract of insurance just set out, the defendant had demanded and received of the plaintiff quarterly assessments, in excess of the maximum sums required by the contract, aggregating $300; and that the defendant was indebted to the plaintiff in that sum as for so much money had and received. The second count in the original declaration is like the first except that it declares as for money had and received for like overpayments to the amount of $300 exacted and received of the plaintiff after he became 65 years of age, under another policy, namely, policy numbered 103665. The third count in the original declaration is like the first, except that it declares as for money had and received for the sum of $900 exacted and received by the defendant from the plaintiff after he became 65 years of age, under still another policy, namely, policy numbered 108816. The fourth count in the original declaration is simply the common count for money had and received, and declares for the sum of $1,500, which is the aggregate of the sums

Vt.)

SOWLES v. HARTFORD LIFE INS. CO.

99

thereof has demanded and received of the plaintiff the sum of, to wit, $1,000. The second count of the amended declaration relates to the policy of insurance issued by the defendant to the plaintiff in 1888, and num

declared for in the three preceding counts. | right collected of the plaintiff a large sum of It is obvious that this count was joined with money, to wit, $100 for sending out notices the others merely as a matter of customary of mortuary assessments, and has also withprecaution, and that it was not intended by out right collected a further sum of money, the pleader to state a further cause of ac- to wit, $500, by way of expense dues in extion. cess of the amount of such dues permitted The first count of the amended declaration under the contract, and has in violation of alleges the contract of insurance, policy the contract collected of the plaintiff the sum numbered 103306, between the plaintiff and of, to wit, $100 for the safety fund, and, to the defendant, entered into in 1888, and wit, the sum of $2,000 as mortuary assesssets out that the contract provided for as- ments in excess of the assessments warranted sessments for the purpose of forming a by the contract, and has, without right, colmortuary fund and for the creation of a lected of the plaintiff the sum of, to wit, safety fund, which assessments were to be $100 assessed upon the quarterly calls of levied upon the plaintiff and upon all other the defendant. At this point the count inmembers of the company holding policies corporates the cause of action set forth in similar to that held by the plaintiff; that the first count of the original declaration, the assessments were to be made according to and alleges, in accordance therewith, that a table of graduated ratios; that the plain- the defendant has collected and received of tiff at the time of the contract was 54 years the plaintiff the sum of, to wit, $300 in vioold; that the money paid to the defendant lation of the stipulation in the contract as for a safety fund was to be deposited with to the sums collectible of him after he ata certain security company as trustee to tained the age of 65 years. The declarabe invested by the security company in gov- tion adds an averment that the defendant ernment bonds, and that the security com- has from the day and date of the contract pany was, on conditions the fulfillment of disregarded the stipulation therein as to the which is alleged, to pay over to the defend-mortality ratio, and that in consequence ant company, at intervals, the income on such bonds, which income the defendant was to divide among policy holders of the class to which the plaintiff belonged; and that it was agreed that, whenever the safety fund should amount to $1,000,000 all subse-bered 103665. Its allegations are similar to quent receipts therefor should be divided among policy holders of the class to which the plaintiff belonged for the payment of future dues and assessments. The count further alleges that the defendant did not at any time after the date of the policy make any division among the policy holders entitled thereto of the income from the safety fund, notwithstanding the existence of the conditions making such division obligatory, and that on March 1, 1899, the safety fund was far in excess of $1,000,000, but that, not- The four counts of the amended declarawithstanding that fact, the defendant did tion cover 31 typewritten pages, and we have not, and has not since, made any division of not undertaken to go much into the details safety fund receipts, in accordance with the of the things alleged. They all allege misagreement already referred to, but that, in conduct on the part of the defendant from disregard of its undertakings, it has from about 1888 when the policies were issued time to time without the knowledge and and the plaintiff was 54 years old down to against the will of the plaintiff, and the oth- the present time. They allege that this er policy holders, diverted the safety fund misconduct, consisting in part of a misapfrom United States bonds to securities of propriation of funds, was a violation of the doubtful character, and has thereby caused defendant's contracts with the plaintiff and a large loss to the fund and to the policy of its contracts with other policy holders of holders. The count further alleges that by the same class, and they seek to recover reason of its disregard of its undertakings money paid in consequence of the wrongful referred to and its misappropriation of the doings and exactions of the defendant made safety fund the defendant ceased to do busi- in a variety of ways during the entire life ness under the safety fund plan, and there- of the policies. The ad damnum is set at by caused the cost of maintaining in force $10,000. Nothing can be plainer than that the policy of insurance to far exceed the this amended declaration introduces a cause amount agreed upon in the policy. The count of action not contemplated when the origfurther alleges that in violation of the con- inal declaration was drawn. Derosia v. Fertract of insurance the defendant has without land, 83 Vt. 372, 385, 76 Atl. 153, 28 L. R.

those in the first count of the amended declaration, though there are some changes and additions. The third count in the amended declaration relates to policy numbered 108816, issued by the defendant to the plaintiff in 1888. This count is in general like the first count of the new declaration. The fourth count in the amended declaration relates to all three of the policies already mentioned, and, in effect, brings together the allegations of the three preceding counts.

There is no error. In this opinion the other Judges concurred, except WHEELER, J., who dissented.

WITHAM v. WING et al.

(108 Me. 364)

A. (N. S.) 577, 138 Am. St. Rep. 1092; Esta- | sented by the evidence, and the nonsuit was brooks v. Insurance Co., 74 Vt. 203, 52 Atl. properly granted. 420. The plaintiff cites Haskins v. Ferris, 23 Vt. 673, Trescott v. Baker, 29 Vt. 459, and Boyd v. Bartlett, 36 Vt. 9. But these cases are all against his contention that the amended declaration introduces no new cause of action. So the amended declaration should have been dismissed on the ground already considered, for, as was tersely said by Judge Steele, the statute does not authorize "a new suit under the guise of an amendment." Dana v. McClure, 39 Vt. 197; Estabrooks v. Fidelity, etc., Co., 74 Vt. 202, 52 Atl. 420; Brodek v. Hirschfield, 57 Vt. 12; McDermid v. Tinkham, 53 Vt. 615; Carpenter v. Gookin, 2 Vt. 495, 21 Am. Dec. 566.

Judgment reversed. Judgment that the amended declaration is dismissed and cause remanded.

RHONE V. SPERRY & BARNES CO.

(Supreme Court of Errors of Connecticut. Oct. 6, 1911.)

(Supreme Judicial Court of Maine.
1911.)

Oct. 5,

1. MECHANICS' LIENS (§ 277*)-PROCEEDINGS
-STATEMENT OF LIEN-VARIANCE BETWEEN
STATEMENT AND BILL-CONTRACTING PAR-
TIES.

materials, plaintiff offered in evidence a copy
In a suit to enforce a lien for labor and
of the record of the lien statement, filed in
the town clerk's office pursuant to Rev. St.
c. 93, § 31, within 60 days after cessation of
name of the owner, the amounts due, descrip-
labor, in order to preserve his lien, stating the
tion of the property, etc., as required by the
statute, and in addition stating the name of
the person with whom the contract was made,
which the statute does not require. Held that,
as the statement was received in evidence, and
was admissible, only to show that plaintiff had
taken the necessary steps to preserve his lien,
and not to prove the contract, any variance in
the name of the persons contracted with, as
alleged in the bill and shown in the statement,
would not defeat the lien, only being available

TRIAL (§ 139*)-QUESTION OF FACT OR LAW- to impeach plaintiff's testimony that the conDIRECTION OF NONSUIT.

Where there was no evidence from which the jury could reasonably have found that the defendant was negligent as alleged in the complaint, and that plaintiff's own negligence did not essentially contribute to his injury, a nonsuit was properly directed.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 332-341; Dec. Dig. § 139.*] Wheeler, J., dissenting.

tract was made with the person alleged in the bill.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. 88 546-554; Dec. Dig. 8 277.*1

2. EQUITY (§ 330*)- WAIVER-FAILURE TO DEMUR TO AMENDED BILL.

Where, after demurrer was filed to the original bill for improper joinder of defendants, an amendment to the bill was filed by consent, to which defendants did not demur, but answered by a denial, exceptions to over

Appeal from Superior Court, New Haven ruling the demurrer to the original bill will County; Edwin B. Gager, Judge.

Action by Charles Rhone against the Sperry & Barnes Company to recover damages for personal injuries alleged to have been sustained by defendant's negligence. From a judgment of nonsuit and from an order refusing to set it aside on plaintiff's motion, he appeals. Affirmed.

George W. Crawford, for appellant. Edmund Zacher and William B. Ely, for appellee.

THAYER, J. After the plaintiff had introduced his evidence and rested his case, the court granted a motion that judgment as in case of nonsuit be rendered for the defendant, and denied the plaintiff's motion to set aside the nonsuit. The record shows that there was no evidence from which the jury could reasonably have found that the defendant was guilty of the negligence alleged in the complaint, and that the plaintiff's own negligence did not essentially contribute to his injury. There was therefore no question of fact to go to the jury pre

not be considered, though the objections urged are open to defendants on appeal.

[Ed. Note. For other cases, see Equity, Dec. Dig. § 330.*]

3. MECHANICS' LIENS (§ 276*)-PROCEEDINGS TO ENFORCE-CONSTRUCTION OF PLEADING -AMENDED BILL.

to enforce a materialman's lien alleged that Paragraph 6 of the original bill in a suit the contract for the work and material was made with W., while paragraph 9 alleged that certain other labor was performed and material furnished by virtue of a contract with W., F., and L. An amendment to the bill alleged that the items sought to be recovered for under paragraph 9 were furnished in carrying out the original contract with W., being additions thereto made necessary by changes which were consented to by him and made by his authority. Held, that the amendment alleged a different contract than the original bill with reference to the work and material mentioned in paragraph 9, alleging in effect that such work and material were furnished to W., so that it operated as a discontinuance as to F. and L.

[Ed. Note. For other cases, see Mechanics' Liens, Dec. Dig. § 276.*]

4. APPEAL AND ERROR (§ 1036*) - HARMLESS ERROR-UNNECESSARY PARTIES.

Since the joinder of unnecessary parties defendant is ordinarily harmless error, which may be corrected on final decree by making the

Me.)

WITHAM v. WING

101

judgment several, the fact that there was no torney, Charles C. Keene, the plaintiff furdiscontinuance in a suit to enforce a material- nished material and labor, all of which enman's lien as to a defendant who had no interest in the property would not defeat plain- tered into and were used in erecting, con structing, altering, and repairing the buildings upon which the lien is claimed, and refers to Exhibit A, which reads:

tiff's claim.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4069 4074; Dec. Dig. & 1036.*]

5. MECHANICS' LIENS (§ 197*)-BONA FIDE PURCHASER-NOTICE-CLERK'S CERTIFICATE

OF CLAIM-EFFECT.

To making piazza for house in Farming-
dale and furnishing material, and to mak-
ing alterations in said house, as per con-
tract dated March 21, 1910....

Credit.

By discount in not furnishing door
and stair rail as per contract...... $ 18 00

Under Rev. St. c. 93, § 39, providing that, when any bill in which a materialman's lien is claimed is filed with the town clerk, he shall file in the registry of deeds a certificate stat- By cash ing the names of the parties and describing the property, etc., the town clerk's certificate, so filed, is notice to the world that claimant asserts a lien upon the property described, so that one thereafter purchasing it does so at his risk.

[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 197.*]

6. MECHANICS' LIENS (§ 166*)-MATERIAL

MAN'S LIEN-ACCRUAL.

A materialman's lien is created by law when the labor and materials are furnished; claimant being required, to perfect his lien for enforcement by bill in equity, only to record his statement of lien in the town clerk's office, as required by statute.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 297; Dec. Dig. § 166.*] Exceptions from Supreme Judicial Court, Kennebec County, in Equity.

Bill in equity by Charles B. Witham against Flora J. Wing and others. On exceptions and appeal by one of defendants after decree for plaintiff. Exceptions overruled, appeal dismissed, and decree affirmed. Bill in equity brought by the plaintiff, under the provisions of Revised Statutes, chapter 93, § 33, against Flora J. Wing, L. B. W. Wing, G. Harold Grant Wing, and the Lewiston Trust & Safe Deposit Company, to enforce a lien upon land and certain buildings thereon, situate in Farmingdale, for labor and materials furnished in altering and repairing said buildings. The last-named defendant was the mortgagee of the premises. The case went to the law court on exceptions and appeal by defendants.

Balance due....

$800 00

200 00 $218 00 $582 00

Paragraph 9 of the bill reads as follows: "That, by virtue of a contract with the said G. Harold Grant Wing, Flora J. Wing, and L. B. Wing, and with the knowledge and consent of said owner and mortgagee, the plaintiff performed certain other labor, and furnished certain other labor and materials, and made certain changes in the specifications of said written contract, all of which are mentioned and described in the statement hereunto annexed and made a part hereof and marked 'Exhibit B,' all of which entered into and were used in altering, constructing and repairing the building located on said lot."

Exhibit B contains 26 items for labor and material furnished from March 28th to May 2d, inclusive. The bill was filed in the clerk's office in Kennebec county, and subpœna issued, as prescribed by the rules of court, to Flora J. Wing, L. B. Wing, G. Harold Grant Wing, and the Lewiston Trust & Safe Deposit Company. The defendants filed an answer with a demurrer therein. Afterwards, with the consent of the defendants, an amendment was filed and allowed. So much of the amendment as is material is as follows:

"All the labor and material referred to in Exhibit A of the plaintiff's bill, for which the plaintiff seeks to recover, were furnished by the plaintiff by virtue of and in pursuance

Argued before SAVAGE, SPEAR, COR- of a contract with the said G. Harold Grant NISH, BIRD, and HALEY, JJ.

George W. Heselton, for plaintiff. Oakes, Pulsifer & Ludden and Eaton, Keene & Gard

ner, for defendants.

HALEY, J. This is a bill in equity, brought by Charles B. Witham, to enforce a lien upon land and buildings thereon, situated in Farmingdale, owned by Flora J. Wing, for labor and material furnished in altering and repairing said buildings.

Paragraph 6 of the bill alleges that, by virtue of a contract between the plaintiff and the defendant G. Harold Grant Wing, a son of Flora J. Wing, who is alleged to be the owner of the land and buildings, executed for said G. Harold Grant Wing by his at

Wing, and the other contracts alleged in the plaintiff's bill to have been made by G. Harold Grant Wing, Flora J. Wing, and L. B. Wing, as stated in paragraph 9 and Exhibit B of the plaintiff's bill, were merely additional to and modifications of the said original contract with G. Harold Grant Wing, mentioned in item 6 of the plaintiff's bill, and were made by his authority and with the consent and knowledge of the owner."

The case was afterwards set down for hearing and was heard, as appears by the record, upon amended bill, answer, admissions of record and proof. The justice who heard the case dismissed the bill as to the Lewiston Trust & Safe Deposit Company and L. B. Wing, with costs for each, sustained

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