(108 A.)

On January 12, 1920, the parties may present a form of decree in accordance with this opinion.

among said daughters "in such proportion such distribution of said fund and its acand amounts to each and at such times to cumulations now in his hands. any one or more of them as he may deem fit." The power thus given indicated a high degree of personal confidence in the trustee named. The trustee was the father of the beneficiaries and acquainted with their dispositions and characters. He would have a special personal knowledge of their family relations and needs as they advanced in life. (Supreme Court of Errors of Connecticut. Dec. He was a person especially qualified to carry out the intention of the testator that said

The

LEWIS v. SCOVILLE.

22, 1919.)

(94 Conn. 79)

TO SHOW EXISTENCE OF SELLER AS AGAINST
MOTION FOR NONSUIT.

trust fund should be used for the highest 1. SALES 52(6)—SUFFICIENCY OF EVIDENCE benefit of said daughters as a class. power of appointment given to the original trustee was not to be exercised in favor of a

new trustee or new trustees who should possess the same discretion and authority as himself, but to a trustee or trustees who should hold said trust estate subject to such condition "as the said Rowland may prescribe." In our opinion the power given to the original trustee to apportion the trust estate among his daughters as he saw fit was a special discretionary one, personal to the original trustee and not annexed to the trust itself. In the terms creating the trust we find the expression of an intention which is inconsistent with and contrary to discretion and authority in a new trustee to divide said trust fund among said daughters "in such proportions & amounts to each and at such times to any one or more of them as he may deem fit."

[2] The testator clearly created a trust in said fund in favor of the daughters of Rowland and Margaret R. Hazard as a class with power in the father, Rowland, to apportion the fund equally or otherwise as he should deem for the best interests of the class. He died without executing the power or directing the manner in which it should be executed by a new trustee of his appointment. In the circumstances of this case, we have held that the discretion personal to the original trustee cannot be exercised by a substituted trustee appointed by the court nor can it be exercised by the court. The court, however, will not permit the general intention of the testator to fail, but will order a division of the trust estate among the members of the class, for whose benefit the trust was created, in accordance with the most equitable rule, which in this case is that of equality. McGaughey's Administrator v. Henry, 54 Ky. (15 B. Mon.) 383; 1 Story, Eq. Jur. § 98; Cathey v. Cathey, 28 Tenn. (9 Humph.) 470, 49 Am. Dec. 714; Burrough v. Philcox, 5 My. & Cr. 72; Brown v. Higgs, 4 Ves. 708; Grieveson v. Kirsopp, 2 Keen, 653.

The complainants Caroline Hazard, Helen H. Bacon, and Margaret H. Fisher are entitled to have said trust fùnd equally divided among them; and the complainant trustee should be empowered and directed to make

In an action for the purchase price of to defendant, evidence held sufficient to show books sold by the Army and Navy Magazine the existence of such seller as a business entity, recognized as such by defendant, and from which defendant ordered the books, as against a motion for nonsuit for failure of proof in that respect. 2. PARTIES 76(1)-MANNER AND TIME OF

OBJECTION TO CAPACITY OF PLAINTIFF TO

SUE.

Where objection is intended to be taken to the capacity of a plaintiff to sue, such objection must be specifically raised by proper pleading for that purpose.

3. PARTIES 76(4)—GENERAL DENIAL NOT SUFFICIENT TO RAISE PLAINTIFF'S CAPACITY TO SUE.

In an action for the purchase price of books sold under the name of the "Army and Navy Magazine," the question of plaintiff's right to sue as being in fact the Army and Navy Magazine is not put in issue under a general denial. 4. PARTIES 96(2)— OBJECTIONS

AS ΤΟ PLAINTIFF'S RIGHT TO SUE WAIVED BY ANSWERING AND GOING TO TRIAL ON MERITS.

In an action for the purchase price of books sold under the name of the "Army and Navy special defense in express terms recognizing Magazine," defendant, by answering and making "the plaintiff" as bound by the terms of the contract made by defendant with the Army and Navy Magazine, and by going to trial on the merits, waived any question as to plaintiff's capacity or right to sue as the person doing business under the name of the "Army and

Navy Magazine."

5. NAMES 10-SUIT MAINTAINABLE ON CON

TRACT MADE UNDER ASSUMED NAME.

Suit for buyer's breach of contract to pur-
chase books sold under the name of "Army and
in the name of plaintiff, "doing business under
Navy Magazine" as seller was properly brought
the name of 'Army and Navy Magazine.''
6. APPEAL AND ERROR 854(5)—REASONS

FOR NONSUIT NOT MATERIAL ON FAILURE TO
MAKE OUT CASE.

Under Gen. St. 1918, §§ 5793, 5794, neither the motion for a nonsuit nor the motion to set aside the judgment as of nonsuit need specify particular reasons; the single question, where no other rulings are involved, being whether for any reason plaintiff has failed to make out a prima facie case.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. SALES

161-DELIVERY TO CARRIER IS DELIVERY TO PURCHASER.

Where defendant ordered books purchased to be delivered "to any common carrier addressed to me. * ** I agree to pay the cost of transportation"-delivery to the carrier was delivery to defendant under Gen. St. 1918, § 4712, and passed the property in the goods to defendant, so that the seller might maintain an action for the purchase price under section 4729.

8. SALES 181(11)-SUFFICIENCY OF EVIDENCE SHOWING DELIVERY.

In an action for the purchase price of books sold, evidence held to justify the inference of delivery to a carrier for defendant as required by the contract.

9. SALES 340-ATTEMPTED CANCELLATION
OF ORDER FOR GOODS NOT EFFECTIVE WHERE
NOT ACQUIESCED IN BY SELLER; "ANTICIPA-
TORY BREACH."

"I hereby confirm my purchase this day of one set of Messages and Papers of the Presidents, eleven volumes, bound in full black leather, and for value received I promise to pay to That a purchaser of books, the day after the Army and Navy Magazine, of Washington, ordering them and before they were tendered, D. C. (branch office, New York), or order, $59.wrote a letter of cancellation to the seller, could 50 as follows: $5 herewith, balance in the folnot limit the seller to an action to recover dam-lowing payments: $5 on the 3d day of each ages for breach of contract, nor prevent action for recovery of the purchase price, where such attempted cancellation was not accepted or acquiesced in by the seller, and the goods were delivered to the carrier pursuant to contract; a breach of an executory contract by anticipation occurring only when there is an absolute refusal to perform by one party before the time for performance and clear acquiescence in or acceptance of such renunciation by the other.

10. JUDGMENT 197-JUDGMENT ON MOTION

month, beginning on the 3d day of October, 1914, payable at the branch office of the Army and Navy Magazine, 141-145 West 36th Street, New York, N. Y.

"In event that any payment as stipulated shall not be made within twenty days thereafter, the entire balance then remaining unpaid shall at once become due and payable.

"G. C. Scoville,

"Address, Norfolk, Conn."

Under date of September 3, 1914, the de

FOR NONSUIT ON FAILURE TO MAKE CASE fendant wrote the following letter:

SHOULD NOT DETERMINE ISSUES.

A nonsuit for failure to make out a prima facie case determines no issues between the parties, does not entitle defendant to a judgment on the issues, but merely for bis costs, and the judgment file should show that the decision was based on the nonsuit.

Appeal from Court of Common Pleas, Litchfield County; James P. Woodruff, Judge.

Action by Herbert Cecil Lewis against George C. Scoville. After appeal from a judgment of the justice of the peace the court granted defendant's motion for a judgment as of nonsuit, denied plaintiff's motion to set aside the nonsuit, and plaintiff appeals. Error, judgment set aside, and new trial ordered.

The defendant, under date of September 2, 1914, signed a written order the material 2, 1914, signed a written order the material

part of which reads as follows:

*

"Army and Navy Magazine, Washington, D. C.-Gentlemen: Please deliver to any common carrier, addressed to me, one set of the 'Messages and Papers of the Presidents,' * bound in full black leather, at $59.50 per set, * * * all in eleven volumes, for which I agree to pay $59.50 to the Army and Navy Magazine, or its assigns. I also agree to pay cost of transportation. * * * This order is unconditional and not subject to cancellation, or to

"Army & Navy Magazine, New York, N. Y.Gentlemen: Upon consideration I find that I have no use for the books ordered Sept. 2d from your Mr. J. J. Swift. Kindly cancel this order at once. I am returning receipt given me and request you to return my check for $5.00. "Respectfully,

G. C. Scoville."

This letter was indorsed as received on September 4, 1914. On October 16, 1914, the defendant's attorney wrote the Army and Navy Magazine, stating that the "defendant absolutely refused to accept the books," giving his reasons, which are not now material. This letter was indorsed as received October 19, 1914. The complaint, in addition to the substance of these letters, alleged prompt shipment, offer of the books to the defendant by the carrier, refusal by defendant to receive the books, and stoppage of payment of the check given with the order in payment of the $5 acknowledged to have

The

been received at the foot of the order. plaintiff claims payment for the entire purchase price as due him under the terms of the contract.

"Herbert Cecil Lewis, of the city of WashIn the writ the plaintiff is described as ington, in the District of Columbia, doing business under the name of 'Army and Navy Magazine.' The name of Lewis does not appear anywhere in the complaint nor in the

(108 A.)

is intended to be taken to the capacity of a plaintiff to sue, this objection must be specially raised by proper pleading for that purpose. case the purpose. The answer here is a general denial. This only admits of proof contradicting the allegations of the complaint, and these, so far as the plaintiff is concerned, relate only to the Army and Navy Magazine. The question of plaintiff's right to sue because he is in fact the Army and Navy Magazine is not in issue under the general denial. Further, a special defense recognizes Swift, as agent of the Army and Navy Magazine, recognizes the making of the contract by the defendant and alleges that the books, under the circumstances set forth in the special defense, could be returned "at the expense of the plaintiff," and that the defendant notified "the plaintiff" of his intention to rescind

[2, 3] But the record shows that the real point urged and upon which the court acted was the claimed failure of. the plaintiff, Lewis, by his proof to show the relation between him and the Army and Navy Magazine. As we have seen, the plaintiff is designated in the writ as Herbert Cecil Lewis, doing business under the name Army and Navy Magazine. The claim of the defendant, sustained by the court, is that proof in the way of evidence must be offered showing that the plaintiff, Lewis, and the Army and Navy Magazine were one and the same person. As the record stands this claim cannot be supported. No such question is raised by the pleadings. And it is well settled under our practice and procedure that, where objection | ant by his pleadings.

[5] In this case the plaintiff by his writ | order and also to the letter of cancellation, 'told the whole story-that he did business further testified that he gave directions to under the business name of the Army and his bookkeeper to refuse the books in case a Navy Magazine. The complaint properly package or box came from the Army and counted on the business name only as the Navy Magazine, but that the box had not name disclosed to the defendant. No issue been tendered to him personally, though he as to the identity of Lewis and the maga- would have refused it had it been so tenderzine, or the capacity of the plaintiff to sue, ed. This latter was confirmed by the letter having been raised, the court was in error of the defendant's counsel to the plaintiff. in granting the motion on the ground stated. The driver of the Adams Express Company [6] The defendant claims that, even if the during September and October, 1914, testiruling upon the specific grounds stated by the fied that he had delivered a number of par-. court was erroneous, yet the conclusion to cels at defendant's place of business and that grant a nonsuit was right for other reasons, the shipment in question was a box that he and that a correct ruling will not be set offered to deliver, but delivery was refused, aside because based on an erroneous reason. and that he took the box back to the express Neither the motion for a nonsuit nor the mo- office. The express agent was not produced tion to set aside the judgment as of nonsuit as a witness because of his absence in the need specify the particular reasons. The United States military service. In the absingle question, where no other rulings are sence of any contradictory testimony, the involved, is whether for any reason the plain- court, in view of the contract, and the defendtiff has failed to make out a prima facie case. ant's direction to his bookkeeper, was justiStats. §§ 5793, 5794; British-American Ins. fied in not basing the nonsuit on the ground Co. v. Wilson, 77 Conn. 559, 60 Atl. 293; of non delivery. Thresher v. Stonington Bank, 68 Conn. 201, 36 Atl. 38. The question then arises: Does the record show that in any essential of his cause of action the plaintiff has failed to make out a prima facie case?

The Sales Act (General Statutes, § 4729) provides:

"Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods."

[8] The facts, unexplained, would justify the inference of a delivery by the plaintiff to the carrier for the defendant, as the contract required. This, under the Sales Act, was a delivery to the defendant.

[9] The defendant further claims that because, on September 3, 1914, and before the goods were tendered, he wrote to the plaintiff the letter of cancellation, no action to recover the price of goods sold and delivered can be maintained, but that the plaintiff is limited to an action to recover damages for breach of contract. Whether the goods were sent before or after receipt of this letter does [7] The present action is for the price of not clearly appear. As the goods were manithe goods. The defendant claims that this festly not goods thereafter to be manufac tured, this is not material. The attemptaction will not lie because no proof of delivery has been made, and for the further ed cancellation was not accepted or reason that the proof showed a countermand quiesced in by the plaintiff, and the goods of the order by the defendant on the day aft- were, pursuant to contract, delivered to the er the order was executed, and apparently be- carrier, which, by the contract, was defendfore the goods were shipped. Delivery of ant's agent. The effect of such an attempted goods to a carrier for transmission to the cancellation appears to have been undeterbuyer pursuant to the terms of a contract re-mined in this state until the decision in Wells quiring delivery to a carrier is a delivery to the buyer. General Statutes, § 4712. The defendant's order was:

"Deliver to any common carrier addressed to me. ** I agree to pay the cost of transportation."

ac

V. Hartford Manilla Co., 76 Conn. 27, 55 Atl. 599. After a careful examination of the English and American authorities, the court there adopted the rule stated in the headnote of the case as follows:

"A breach of an executory contract by anticipation occurs only when there is a distinct, unequivocal, and absolute refusal to perform the promise by one party, before the time for its acquiescence in or acceptance of such renunciapass-performance has arrived, and an equally clear tion by the other; in other words, the contract remains a subsisting one until the parties have mutually elected to treat it as broken, and have given unmistakeable evidence of such election."

Under this provision of the contract delivery to the carrier was delivery to the defendant, the property in the goods then passed to the defendant and it became his duty to accept and pay according to the terms of the contract. Kinney v. Horwitz, 93 Conn. 211, 105 Atl. 438; Illustrated Postal Card & Novelty Co. v. Holt, 85 Conn. 140, 81 Atl. 1061; 23 R. C. L. § 248. The evidence upon this point is in substance this: The defend

In Home Pattern Co. v. Mertz, 86 Conn. 494, 86 Atl. 19, the same question was pre

(108 A.)

appear that the goods are not still in the hands of the carrier, by the contract defendant's agent to receive the goods. Repudiation of the contract was not a breach of it. Delivery to the carrier was delivery to the defendant, and the title passed to the defendant upon such delivery. Refusal by the defendant to receive the goods did not revest title in the plaintiff, and he is, under the ruling in the above-named cases, and so far as this case has yet been developed, entitled to recover the contract price. Upon no ground urged by the defendant does it appear that he was entitled to judgment as of nonsuit.

arises in the present case. There the defend- [ignated in the contract, and it does not ant agreed to buy dress patterns to be manufactured by the plaintiff from time to time, to place them on sale in its store, receiving credit at stated intervals for all discarded undamaged patterns which were returned. After the first installment of patterns had been manufactured, but before its shipment, the defendant repudiated the contract and refused to accept the goods. The plaintiff declined to treat the repudiation as a breach of the contract, and at the appointed time delivered the goods to the carrier designated by the defendant. The court, citing Wells v. Hartford Manilla Co., supra, and other cases, said at page 501 of 86 Conn., 86 Atl. 21: "The repudiation of the contract without the acquiescence of the plaintiff did not put an end to the contract. The plaintiff could still treat it as subsisting, and, notwithstanding the notice of repudiation, assume that the defendant would perform its part of the contract when the time for such performance should arrive. Had it chosen to consent to the renunciation, it might have done so and brought an action at once for breach of the contract, but there can be no anticipatory breach of a contract by one party without the acquiescence of the other. A breach by one party alone can only occur after the time for performance has arrived. * ** The repudiation of the contract was not, therefore, a breach of it, and the plaintiff, having declined to acquiesce, was bound to tender performance when the time for delivery of the goods arrived. This it did, and the goods were received in New York by the carrier designated by the defendant. The defendant, by the express terms of the contract, was to pay the freight on the goods from the place of shipment. When the goods were thus received by the carrier, and the bill of lading had been forwarded to the defendant, the plaintiff had fully performed its contract with respect to those goods. The delivery to the railroad was delivery to the defendant, and the title thereby passed to the defendant."

And the court, upon these facts, held that title to the goods had passed to the defendant, and that the plaintiff was entitled to recover the contract price of the same.

[10] The record shows a judgment file in which the issues are found for the defendant and judgment is rendered accordingly. This is erroneous. It was agreed, and the record otherwise showed clearly, that the actual judgment was as of nonsuit under the statute. A nonsuit for failure to make out a prima facie case determines no issue between the parties. The defendant is not entitled to a judgment on the issues, but only for his costs. The judgment file should show that the decision is based on the nonsuit. The forms are in common use, and doubtless the adoption of an erroneous form in this case was inadvertent. We call attention to the defect here, notwithstanding the agreement of the parties, because possibly serious consequence might follow from a judgment file purporting to decide the issues when in fact no issues were decided.

and a new trial ordered.
There is error, the judgment is set aside,

The other Judges concurred.

(94 Conn. 719)

HALE V. F. L. BRADBURY CO. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.)

SET ASIDE WHERE ISSUES OF FACT WERE
PECULIARLY FOR JURY.

A verdict, finding issue of fact of negligence and contributory negligence in favor of plaintiff, is properly not set aside by trial court, where the issues involved inquiries of a nature to make their determination peculiarly appropriate for the deliberations of a jury.

The same question was again presented NEW TRIAL 68- VERDICT WILL NOT BE upon a retrial of the Home Pattern Company Case, and the rule announced in that case was confirmed and adopted. Home Pattern Co. v. Mertz, 88 Conn. 22, 90 Atl. 33. Our own decisions are so recent and so clear that further examination of the question is unnecessary. Applying our rule to the case in hand, we find that under the contract there was to be a delivery of the goods, apparently already manufactured and ready for shipment, to the defendant by a carrier in general Action by Archer A. Hale against the F. terms designated by the defendant, the de- L. Bradbury Company for damages for perfendant to pay transportation charges, a re-sonal injuries alleged to have been caused by pudiation or attempted cancellation of the contract by the defendant, no acquiescence in this repudiation by the plaintiff, and actual shipment of the goods the carrier des

Appeal from Superior Court, Hartford County; Lucien F. Burpee, Judge.

the negligence of defendant's servant in the operation of one of its commercial automobiles. Verdict and judgment for $10,000 for plaintiff, and defendant appeals. No error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes