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character of the municipal action challenged | amended by P. L. 1921, p. 247. it is providby this writ. It was to employ an engineer ed that the authorization of bonds or the to prepare plans and specifications "for an authorization of temporary notes or temelectric light distributing system for public porary bonds shall be deemed an approlighting," and we think that may be done priation for the purposes for which said without adopting an ordinance "for the con- bonds or temporary notes or temporary struction of a municipal lighting plant," bonds are authorized, and, after such approsince, by virtue of sections 1 and 2 of ar- priation has been made, contracts may be ticle 24 of Laws of 1917, the governing body let for amounts within the amounts so apof the city may cause such distributing sys-propriated, notwithstanding that the protem to be constructed either by the municipality or by a contractor who engages to furnish street lighting for a stated term.

ceeds of sale of such temporary notes or
temporary bonds shall not then be in hand.
These observations dispose of every ques-
tion raised by the reasons and argued.
The ordinance under review will be af-

It is next urged that the expenditure authorized by the ordinance, being in excess. of $500, was prohibited by section 1 of ar-firmed, with costs. ticle 11 of P. L. 1917, p. 347, as amended by P. L. 1920, p. 572. We think not. That section provides that no municipality shall enter into any contract involving an expenditure in excess of $500, "for the doing of any work or for the furnishing of any materials, supplies or labor" unless the governing body shall first publicly advertise for bids therefor, and shall award the con- 1. Appeal and error 1011(1)-Finding on tract to the lowest responsible bidder. And conflicting evidence not disturbed. we think that provision has no application A finding by the trial court based on con

(97 Conn. 223)

DONNARUMMA v. KORKIN et ux.

(Supreme Court of Errors of Connecticut. Feb. 21, 1922.)

peal.

to a contract with an engineer for the prep-flicting evidence that defendant never promised aration of plans and specifications for an to pay the broker's commission for which plainelectric light distributing system, because tiff sues is conclusive against plaintiff on apsuch services require scientific knowledge and professional skill, and are not comprehended by the legislative designation "work," "materials," "supplies," and "labor." Heston v. Atlantic City, 93 N. J. Law, 317, 107 Atl. 820.

Finally it is contended that "at the time Finally it is contended that "at the time of the passage of the ordinance the city was without funds either appropriated or legally raised, to pay Temple for his services in making the plans and specifications," and hence the ordinance was invalid. But we think that contention without foundation, either in fact or in law. The ordinance itself provided that the cost of the services ($2,700) should be included in the tax levy, and the money temporarily raised by temporary notes, and that course is authorized by law and amounts to an appropriation for the purpose. Section 1 of chapter 252 of P. L. 1916, p. 525, as amended by P. L. 1917, p. 803, authorizes the issue of bonds by municipalities to pay for any improvement which it is authorized by law to make, or for any other purpose which it is authorized by law to undertake or for which it is authorized or required by law to make an appropriation. By section 13 of the law (P. L. 1916, p. 539, amended by P. L. 1921, p. 243) any municipality may temporarily finance the carrying out of any purpose for which it is therein authorized to issue bonds by borrowing money and issuing from time to time temporary notes or temporary By section 14 (j) of the act, as

bonds.

2. Appeal and error

1082(1)-Appeal from city court by one defendant does not vacate judgment in favor of another defendant so as to be reviewable on further appeal.

Where an action in the city court was brought against two defendants on a contractual liability which was not joint, but severable, and judgment was rendered in favor of one defendant and against the other, an appeal by the defendant, against whom judgment was rendered to the district court, did not vacate the judgment in favor of the codefendant, which became final by plaintiff's failure to appeal therefrom, so that plaintiff cannot, on appeal from a judgment in favor of the other defendant in the district court, claim he was prejudiced by the city court judgment.

Appeal from District Court of Waterbury; Frederick M. Peasley, Judge.

Action to recover a real estate broker's commission by Frank Donnarumma against Simon Korkin and wife. Judgment rendered in favor of Simon Korkin, and appeal was taken by the wife to the district court, where a judgment was rendered for her, from which plaintiff appeals. No error.

Edward Mascola, of Waterbury, for appellant.

Philip N. Bernstein, of Waterbury, for appellee.

PER CURIAM. Some of the paragraphs of plaintiff's draft finding should have been marked proven instead of not proven, but,

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(116 A.)

were these changes made in the finding, the together with interest thereon from such date,
judgment must remain unaffected.
and the amount paid for the premises may or
may not measure this value.

[1] The trial court found that the defendant never promised to pay the broker's commission for which plaintiff sues. This finding was made on conflicting evidence, and since it cannot be disturbed it concludes the case.

[2] Plaintiff's fifth reason of appeal is that he is aggrieved by the judgment rendered in favor of Simon Korkin in the city court. That judgment was not appealed from. It therefore became a final judgment. Special Acts 1915, c. 168, § 3; Sargent & Co. v. N. H. Steamboat Co., 65 Conn. 116, 31 Atl. 543: Bunnell v. Berlin Iron Bridge Co., 66 Conn. 37, 33 Atl. 533.

The appeal of the other defendant, Ray Korkin, from the judgment of the city court to the district court did not operate to make the other defendant, Simon Korkin, a party to the appeal. In an action of tort against several we held the judgment to be severable, and that an appeal by one of two defendants against whom such judgment had been rendered by a justice of the peace vacates the judgment only as to the defendant appealing. Chapin v. Babcock, 67 Conn. 255, 256, 34 Atl. 1039.

Appeal from Superior Court, New Haven County; George E. Hinman, Judge.

Actions by Maddalena Vollaro against Salvatore Gargano, and by said Gargano against Salvatore Vollaro and wife. Judgment for defendant in first action and for plaintiff in second action, and the plaintiff in first action and defendants in second action appeal. No error in first action, and error and new trial in second action.

In Vollaro v. Gargano, the plaintiff sought to recover in count 1 for board and lodging furnished defendant, and in count 2 for damages suffered through the fraud of the defendant in inducing her to transfer to defendant one-half of certain premises situated on Wallace street, New Haven.

In Gargano v. Vollaro et ux., the plaintiff sought to recover damages for the refusal of defendant Maddalena Vollaro to convey to plaintiff the other half of said premises, the whole of which had been purchased by funds of plaintiff and the actual and beneficial ownership in which had always remained in plaintiff.

The original cause of action in this case was against two defendants, and upon an ac- The finding in Vollaro v. Gargano is that tion ex contractu, not joint, but severable; the board and lodging which was the subhence the judgment against Ray Korkin, ject of count 1 had been fully paid and that when appealed from by her, did not operate the one-half interest in the premises referto vacate the judgment against Simon Kor-red to in count 2 had been transferred to kin, which was unappealed from, and hence Gargano upon his demand, and that the cirbecame final. Note, 60 Am. St. Rep. 659; 15 cumstances detailed in the finding do not R. C. L. § 150. support the fraud as charged in count 2.

There is no error.

(97 Conn. 275)

VOLLARO v. GARGANO.
GARGANO v. VOLLARO et ux.
(Supreme Court of Errors of Connecticut.
Feb. 21, 1922.)

1. Fraudulent conveyances 174 (3)-Placing
title in name of trustee to prevent attachment
held not to bar recovery.

One who had title to land purchased by him
placed in the name of another, by reason of
representations of such other that he was lia-
ble to have his property attached for a claimed
tort of his deceased wife, could, nevertheless,
recover the property from the trustee, in the
absence of a finding that he had any creditors.
2. Trusts 374-Measure of damages for re-
fusal of trustee to reconvey.

Where plaintiff, who purchased land, had the title placed in the name of defendant, who conveyed to him on demand only one half interest therein, plaintiff was entitled to recover the value of the other half of the premises from the date of his demand for a conveyance,

The facts in Gargano v. Vollaro et ux. are substantially the same as found in Vollaro v. Gargano as respects the purchase, transfer, and use of these premises. On August 3, 1916, Gargano purchased these premises and paid on account of the purchase price $1,085, and had the title placed in the name of Maddalena Vollaro, being induced thereto by the friendly relations existing between them and by her representations and of others that he was liable to have his property attached for a claimed tort of his deceased wife. The title continued in Mad

dalena Vollaro, and she continued in the use of the property until November 4, 1919. when Gargano made demand upon her that she convey the title to this property to him. Thereupon she conveyed a one-half interest but refused to convey the remaining onehalf. Neither defendant paid any portion of the purchase price of these premises, and the conveyance to Maddalena Vollaro was wholly voluntary.

George E. Beers and Carl A. Mears, both of New Haven, for appellants.

Raymond E. Baldwin and Philip Pond, both of New Haven, for appellee.

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

WHEELER, C. J. (after stating the facts upon directed to be rendered for such sum as above). The finding of facts in Vollaro with interest thereon from November 4, v. Gargano required the judgment which 1919. was rendered regardless of whether thè conclusions of law reached by the court were correct or not.

'The assignment of errors in the appeal in Gargano v. Vollaro may be reduced to four, that Gargano cannot sustain his action because (1) the property for the refusal to transfer which he seeks to recover damages was transferred to avoid an attachment on a tort claim against his deceased wife, (2) his laches precludes him in asserting his right to this half of these premises, (3) the circumstances found estop him from making claim to this half and constitute on his part a waiver of his right to make such claim, (4) the measure of damages adopted by the court was wrong.

The other Judges concurred.

(97 Conn. 279)

GREENBERG v. RILEY et al.

(Supreme Court of Errors of Connecticut. Feb. 21, 1922.)

Appeal and error 10-Refusal of Judge to make finding not appealable.

Gen. St. 1918, § 5824, provides that in case of the refusal of a judge to make a finding, an application may be made to the Supreme Court of Errors to order the judge to file a finding, and where a judge refuses to make a finding,

such refusal is not a matter that can be remedied by an appeal or set up as a reason for appeal.

Appeal from City Court of New Haven; Samuel E. Hoyt, Judge.

Action by Samuel C. Greenberg against Fred C. Riley and others. Verdict for plaintiff, and defendant moved for a new trial, which was denied, and also moved for a finding. Both motions were denied, and defendants appeal. No error.

[1, 2] It is not found that when Gargano transferred these premises he had any creditors; consequently the rule invoked has no application. The claims of laches and waiver are not upon the finding made even arguable points. The only serious question in the case is as to whether the court adopted a measure of damages which can be upheld by our law. The court took one-half of the amount paid by Gargano for this property in 1916, and added to this sum the interest thereon from the date defendants wrongfully refused to retransfer this half of the premises. Upon the facts found the plaintiff would have been entitled to a reconveyance of these premises had his prayers for relief contained such claim. As he merely claimed money damages, he was entitled to the value of the half of these prem-swer by a special defense only. They allege, ises from the date of his demand for a reconveyance together with interest thereon from the date of demand. The amount paid for the premises may or may not measure

this value.

The finding fails to find the value of this half interest at any time, so that, so far as the record discloses, there was no basis of value before the court from which it could render a money judgment. The plaintiff likens the rule of damage to that in a case of conversion which had occurred at the date of transfer. There is no similitude. The finding does not show that Mrs. Vollaro received the premises or held or used them in any way wrongfully, until she refused to meet plaintiff's demand for a reconveyance. There is no occasion to retry the case. A finding of the value of the premises on November 4, 1919, should be made and judgment thereupon rendered for plaintiff for such sum with interest from

such date.

There is error, and a new trial ordered for the finding of the value of said half on November 4, 1919, and judgment is there

Joseph Koletsy, of New Haven, for appellants.

Frank Kenna, of New Haven, for appellee.

CURTIS, J. This is an action by the payee of a note against indorsers to recover the amount of the note. The defendants an

in effect, that they were accommodation indorsers without consideration, and that when the note became due they entered into an agreement with the plaintiff whereby he agreed to discharge them from liability on the note if they would discover and produce for the plaintiff property of John C. Lounsbury of a value of $250, the amount due on the note; that they thereupon discovered and produced for the plaintiff property of John C. Lounsbury of such value. The plaintiff denied the allegations of this defense. Upon the trial the jury rendered a verdict for the plaintiff. The defendants moved that the court set aside the verdict as against the evidence. This motion the court denied.

The only reason of appeal that the record brings before us for consideration is the following, found in their appeal filed May 29, 1920:

to set aside the verdict in this action.
(1) The court erred in denying the motion

There appears in the record the fact that on May 29, 1920, the defendants made what they term a request for a finding, and later

(116 A.)

The other Judges concurred.

OVIATT v. TOOLE.

(97 Conn. 204)

(Supreme Court of Errors of Connecticut. Feb. 21, 1922.)

what they term a motion to correct the re- teresting and important question suggested quest for a finding. The court denied the by the plaintiff. motion, and refused to make a finding. The No error. defendants filed their appeal on May 29, 1920, and also filed an amendment to their reasons of appeal, which was predicated on the charge of the court. No finding having been made as to the charge of the court, the court refused to permit the filing of the amendment to the reasons of appeal. The defendants also filed a supplemental appeal, which they apparently deemed would bring before us the question whether the court erred in not making a finding and allowing additional reasons of appeal. When a judge refuses to make a finding, such refusal is not a matter that can be remedied by an appeal or set up as a reason of appeal. The statutes provide that in case of the refusal of a judge to make a finding, an application may be made to the Supreme Court of Errors to order the judge to file a finding. General Statutes, § 5824; Giordano v. Janetto, 95 Conn. 690, 112 Atl. 263. Therefore as stated before, the only reason of appeal before us is that:

Brokers 63 (1)-Broker who procured purchaser to whom vendor refused to convey held entitled to commission.

Vendor's real estate broker, who procured a purchaser who agreed to purchase the property on the terms specified by the vendor, and who was ready and willing to live up to such for reasons of his own, and not because of terms, was entitled to his commission, though failure on the part of the broker, the vendor refused to convey to such purchaser and thereafter sold the property to other persons.

Appeal from Superior Court, New Haven

The court erred in denying the motion to County; George E. Hinman, Judge. set aside the verdict in this action.

The entire evidence in the case is made a part of the record. We are of the opinion from an examination and consideration of the entire evidence that the jury could have reasonably found the issues arising on the special defense and its denial in favor of the plaintiff.

It is to be observed in this connection that section 4477 provides that a negotiable instrument may be discharged:

Action by Herbert Oviatt against James F. Toole. Judgment for plaintiff, and defendant appeals. No error.

Walter J. Walsh, of New Haven, for appellant.

Carl E. Mears, of New Haven, for appellee.

The plaintiff claimed that General StatBURPEE, J. The only issue in this case utes, § 4480, which provides that the renun- was whether the plaintiff produced a person ciation of the rights of a holder of a ne- who was ready, willing, and able to accept gotiable note against any party to the in-and live up to the terms offered by the destrument must be in writing, applies not only fendant for the sale of his real estate. The to a renunciation without consideration, but trial court decided this issue in favor of also to a discharge of such party by con- the plaintiff, and made a finding of facts in tract upon consideration. which it set forth the subordinate facts upon which that conclusion was reached. The defendant requests that this finding be corrected by striking out that part which states the court's conclusion because the evidence was not sufficient to support it, and by substituting certain facts which he claims were A number of cases may be found which undisputed. Having examined the whole support this claim of the plaintiff; but Wil-record containing the evidence in the case, liston in his work on Contracts, in a note to section 1833, vol. 3, states that in his opinion the claim is clearly unsound.

"(4) By any act which will discharge a simple contract for the payment of money.".

we have discovered no reason to correct the finding in any respect.

It was admitted that the defendant emNo question was raised on the trial to the ployed the plaintiff to sell his property and admissibility of any evidence produced by stated in writing the terms on which he the defendants in support of their special agreed to sell. It is not disputed that the defense. While it appears from an exami- plaintiff submitted these terms as they were nation of the record that the defendants' thus stated to a possible purchaser, who ac evidence was entirely parol, yet, since we cepted them and paid $500 in part payment. find, as above stated, that the jury could This occurred early in February, 1920. In reasonably have found the issues for the the written terms so offered and accepted, plaintiff under the evidence presented, it is the purchase price was stated, but not the not essential in this case to decide the in-time of payment. The defendant, however,

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

adopted.

Where a word in a will is subject to two
constructions, one of which will defeat the gifts
and the other validate them, the latter should
be adopted.

3. Perpetuities 4(10)-Clause of will held
to violate statute of perpetuities; "heirs."

orally instructed the plaintiff, and the plain- | 2. Wills 446-Construction validating gifts
tiff informed the prospective purchaser, that
the defendant would not deliver a deed or
possession of the premises until June 1,
1920, and that the cash payment would not
be required until the transfer took place.
The would-be purchaser testified that he was
ready and willing to live up to these terms,
and had manifested his sincerity by his de-
posit of $500 in part payment and his under-
taking to deposit $4,500 more in 60 days.
We find no evidence contradicting this testi-
mony, or indicating that the defendant at
any time had any doubts about the buyer's
willingness or readiness to accept the of-
fered terms of sale.

Clause of a will giving certain property to widow, with remainder to a son for life, "and after his death to his heirs forever" held to violate the statute of perpetuities, as it would be impossible to limit the word "heirs" to surviving children of the son.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Heirs.] 4. Wills 858 (1)-Property referred to in void clause passes to residuary legatees. Personal property referred to in clause of a will violating the statute of perpetuities passes to residuary legatees.

devise does not pass under general residuary
clause.

intestate estate, and descends to the heirs, and
Realty described in a lapsed devise becomes
does not pass under a general residuary clause.

As to his financial ability, the proposed purchaser testified that he was able and had made arrangements to meet the given terms of the sale when the defendant should transfer the property to him on June 1, 1920, and referred to his banking places. The defendant made no question about financial 5. Wills 858 (3)-Real estate in a lapsed ability during the transaction, and offered no evidence concerning the matter during the trial. On the contrary, he admitted that after he had been informed that the plaintiff had found this purchaser and who he was, the defendant refused to complete the sale Case Reserved from Superior Court, Fairunless this purchaser would accept material-field County; Frank D. Haines, Judge. ly different terms from those which the defendant had stated. These new terms had no connection with the readiness, willingness, or financial ability of the person produced by the plaintiff. They were intended to impose new and less advantageous conditions The proposed purchaser refused to accept them, but was still ready to carry out the proposition originally made to him. Plainly, therefore, it was for reasons of his own, and not because of any failure of the plaintiff, that the defendant declined to accept the results of the plaintiff's services, and on the next day sold and conveyed the property to other persons. These admitted and undisputed subordinate facts sustain the conclusion of the trial court concerning the fundamental issue in this case, and justify its decision in favor of the plaintiff.

upon the terms of sale.

There is no error.

The other Judges concurred.

(97 Conn. 245)

BRIDGEPORT TRUST CO. v. PARKER et al.

(Supreme Court of Errors of Connecticut. Feb. 21, 1922.)

Action by the Bridgeport Trust Company,
administrator c. t. a., against Spottswood
Parker and others, to obtain a construction
of the will of Sylvester Blakeman, deceased.
Case reserved for advice on agreed state-
ment of facts. Will construed.

Sylvester Blakeman died March 30, 1882,
leaving a will by the second clause of which
he gave to his widow, who survived him, his
homestead, furniture, and all appliances for
life, with remainder to his son, Alfred, who
also survived him, for life "and after his
death to his heirs forever." By the third
paragraph of his will he gave to his wife
the use of $13,000 for life, remainder to his
son, Alfred, for life, "and at his death the
same to go to his heirs forever." By the
ninth paragraph of his will he gave all the
rest and residue of his estate, "both real
and personal," to be divided equally between
his widow, Caroline, and his son, Alfred.
The testator left him surviving his widow,
Caroline, his son, Alfred, and wife and their
three sons, all of whom resided in Connect-
icut. After the testator's death Alfred and
1891 one of Alfred's sons
his family became domiciled in Virginia. In
1891 one of Alfred's sons died intestate,
leaving his father as the sole distributee of
his estate under the laws of Virginia. Al-
fred died in 1898, leaving his entire estate

1. Wills 458-Words prima facie used in to his widow, who survived him. In 1900 a

same sense.

Words used more than once in the same will are prima facie used in the same sense.

second son of Alfred died intestate and with-
out issue, leaving his mother and his sur-
viving brother as distributees of his estate,

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