it, but that the proof was not sufficient to establish the contract. The point was not The point was not even made that such a contract was against public policy. The payment to be made the mother was, by the contract, fixed at the majority of the child, but there never was a time during its existence that the law would have declared it void as against public policy, because it contemplated no severance of the parental relation, no extinguishment of parental solicitude, and was wholly for the welfare of the child. Such custody as was necessary to gratify the pride and affection of the grandfather, and further the boy's education, was relinquished; a custody not unlike that which she would have surrendered had she placed him in a boarding school for several years. As we see nothing in this contract which should prevent its enforcement, the judgment of the court below is reversed, and judgment is now entered on the verdict for plaintiff.

ROWELL v. STAMFORD ST. R. CO. (Supreme Court of Errors of Connecticut. June 12, 1894.)

CARELESS DRIVING-EXCAVATION IN STREET.

A water company had excavated under the track of defendant street-railway company, severing some ties, and leaving the dirt west of the track so as to blockade that side of the street. One forenoon defendant's servants dug a trench across the track, to replace a tie, and dumped the dirt, stones, etc., on the water company's pile. Plaintiff, driving a pair of spirited young stallions, passed the place several times, and could have seen the workmen at work. Held, that said fresh earth, débris, and scattered tools left by the workmen at noon tended to indicate to plaintiff, who knew the previous condition of things at that point, that he could not safely drive there.

Appeal from court of common pleas, Fairfield county; Curtis, Judge.

Action by Edward E. Rowell against the Stamford Street-Railroad Company for damages for injuries to property. Judgment for plaintiff. Defendant appeals. Reversed.

Following was plaintiff's notice to defendant: "To the Stamford Street Railroad Co.: Please take notice that on June 30, 1892, a little before one o'clock in the afternoon, the subscriber suffered an injury to his property on account of driving into an excavation in that part of the highway occupied by your track on Atlantic street, opposite the barber shop at 122 Atlantic street, and which excavation was made by your servants, and negligently left without any signal or notice to a person driving that it was there; the nature of such injury to his property being that his horses were thrown violently to the ground, and both were strained, bruised, and lamed; one especially was injured in the ankle joint, whereby he has been useless to the subscriber since the accident, and is more or less permanently injured. Stamford, August 3, 1892. Edward E. Rowell, by Hart & Keeler, His Attorneys."

Julius B. Curtis and Robert A. Fosdick, for appellant. Nathaniel R. Hart and John E. Keeler, for appellee.

ANDREWS, C. J. The notice given by the plaintiff to the defendant was sufficient. Tuttle v. Town of Winchester, 50 Conn. 496; Brown v. Town of Southbury, 53 Conn. 213, 1 Atl. 819; Lilly v. Town of Woodstock, 59 Conn. 219, 22 Atl. 40.

Section 1135 of the General Statutes forbids this court to consider on any appeal any errors, "unless they are specifically stated in the reasons of appeal." In this case the reasons of appeal do not state specifically any error of fact. We therefore omit all claimed errors from consideration.

such

The track of the defendant is laid on and along Atlantic street, in the city of Stamford. That street is a paved and much-traveled highway in said city, running north and south. The charter of the defendant requires it to maintain in good and sufficient repair that part of any street or highway over which its track is laid, and a space five feet wide on each side of its track. The plaintiff alleged in the complaint that on the 30th day of June, 1892, the defendant dug a trench under its track in said Atlantic street, and "negligently left said trench unguarded, and without any signal, warning, or other indication that there was danger in driving over the said highway;" and that, in consequence of such negligence of the defendant, and without any fault or negligence on his part, his horses, while he was driving over said highway, got into said trench, and were violently thrown, and greatly injured. The defendant, in its first defense, denied all the material allegations of the complaint; and a second defense averred certain facts from which it claimed that the said trench was not left "without any signal, warning, or other indication that there was danger in driving over the said highway." These facts were in turn denied by the plaintiff. Upon these averments and denials the trial was had. It seems not to have been disputed at the trial that there was, on the day mentioned, across and at right angles with the defendant's track in said street, a trench about 7 feet long, 15 inches wide, and 13 inches deep, and extending about 14 inches outside of the track on each side, into which the plaintiff drove, and his horses received the injury of which he complained. It appeared that a day or more prior to the said day the Stamford Water Company, for the purpose of repairing or relaying its pipe in said street, had made an excavation therein for a distance of about 50 feet diagonally across and under the track of the defendant, and in so doing had severed six or seven of the railroad ties, and had disturbed the paving stones. The water company left the dirt and other material from its excavation on the west side of the track, extending from the track nearly to the curb of the street, and rendering that side of the street impassable; and it also ap

peared that on said day the defendant dug said trench under its track for the purpose of replacing one of the ties which had been so severed by the water company with a new one. The plaintiff's injury happened at about 1 o'clock in the afternoon, while the defendant's workmen were absent from their work at dinner. He was driving a pair of spirited young stallions at a speed of 6 or 7 miles an hour, and did not slacken that rate, or attempt to turn from the railroad track, until he was within from 20 to 10 feet of the said trench. During the forenoon of that day the defendant's workmen had dug the trench, and had placed the earth taken therefrom upon the pile of earth which the water company had left. This was fresh earth. There were also on said pile the cobble stones thrown out, the paving stones,-about one and a half cubic yards of Belgian block,-the pieces of severed ties, and, scattered around, the tools of the workmen. The plaintiff had driven through the street during the forenoon two or three times, and had a full opportunity to see the laborers of the defendant at work digging the said trench.

The sole contention, so far as this court is concerned, was whether the plaintiff was chargeable with contributory negligence; or, to state the matter somewhat more narrowly, whether the said trench was left, as the plaintiff had alleged, without any indication that there was danger in driving over that part of the said highway, or, as the defendant had asserted, was not so left. The defendant relied on these facts as tending to prove its contention; and insisted that the fresh earth thrown upon the pile left by the water company, the cobble stones, the paving stones, and the scattered tools of the workmen did indicate to one who had the previous knowledge of the condition of things at that place which it is shown the plaintiff had that there was danger in traveling on that part of the defendant's track. The court, however, found that all these things were "additions, simply, to the débris already there, indicating only as the same débris had indicated for days, that the westerly side of the street was impassable." The force of this finding is in the word "only." If these facts indicated only that the west side of the street was impassable, then they did not tend to indicate that there was any danger in traveling on the railroad track at that place; and the finding of the court is equivalent to a ruling that the facts above recited did not tend to prove the defendant's claim. That this is the meaning which the court intended this language to bear is made entirely. certain by what the judge says in the memorandum of decision. He there says, in reference to these same facts: "I do not think this mass of débris, or any part of it, can properly be considered as giving a traveler any notice other than that the west side of the street was impassable." We think there was error. While there was no formal ruling that the evidence was in

| admissible, the finding shows that the court did not consider it or weigh it at all as tending to prove what the defendant had alleged. The error is no less when the court refuses or omits to consider evidence which is properly admitted than it would be if the court should refuse to admit the evidence. The party offering the evidence is deprived of its value in the case as much by the former course as by the latter. It is very clear that the evidence. taken in connection with the knowledge and the means of knowledge which the plaintiff had, did tend to show that he was justly chargeable with negligence contributory to his own injury. It is true that a traveler has a right to presume that the highway will be free from dangerous pitfalls. It is equally true that every traveler must act reasonably. He must use his senses to avoid danger. must not shut his eyes. If he has knowledge that a dangerous place exists, there can be no presumption in his favor. He must exercise care not to fall into it, and he is bound to make use of all the means of knowledge which are reasonably open to him. But we are not concerned now with the weight of the evidence. We are only showing that it was admissible, and should have been considered by the court for the purpose for which the defendant claimed it; and because it was not so considered there must be a new trial. There is error, and a new trial is granted. The other judges concurred.

He

GILBERT v. WALKER et al. (Supreme Court of Errors of Connecticut. June 29, 1894.)

CONVERSION OF PROPERTY-RECEIVING NOTE FOR COLLECTION FAILURE TO RETURN PROCEEDSNEW TRIAL.

1. Defendants, pursuant to plaintiff's instruction, forwarded a note belonging to him to an investment company for collection. The note was collected, but without defendants' knowledge the proceeds were credited to them on securities in their hands belonging to the company, and the company became insolvent without returning the proceeds. Held, that there was no conversion of the note by defendants.

2. A new trial will not be granted where its result, on the admitted facts of the case, could not be different from that of the former trial.

Appeal from superior court, New Haven county; F. B. Hall, Judge.

Action by Timothy Gilbert against James Walker and another for the conversion of a note delivered for collection. Judgment for defendants, and plaintiff appeals. Affirmed.

William B. Stoddard, for appellant. Henry C. White and Leonard M. Daggett, for appellees.

TORRANCE, J. The complaint in this case is for the conversion of a certain promissory note belonging to the plaintiff, and it contains but a single count. The answer admits the ownership and delivery of the note, and the demand as alleged, but denies the

conversion. It also sets out in detail certain facts, the substance of which is that the defendants, with the plaintiff's consent, received the note to forward for the plaintiff to a western company for collection; that they had done so, and the note had been paid to said western company; that said western company had never paid over to the defendants the proceeds of said note, but that it, shortly after such payment, and while said proceeds were in its hands, became insolvent, and had been put into, and was still in, the hands of a receiver for the benefit of its creditors; that in so receiving and forwarding said note for collection the defendants acted as the agents of the plaintiff, with his knowledge and consent; and that they had notified the plaintiff of the facts alleged. The parties were at issue upon all or nearly all of the special facts so set up. The court below made a finding of facts, and upon them rendered judgment for the defendants.

The basis for an appeal upon certain claimed errors in the finding of facts appears upon the record, but no appeal was taken on this ground, and the reasons of appeal are based wholly upon certain claimed errors of law. For this reason we must decline to consider any errors save those specifically assigned in the reasons of appeal, and must take the facts as they are found by the court below. Rowell v. Railroad Co., 64 Conn. 376, 30 Atl. 131. The material part of the facts found may be stated as follows: The note in question was for $1,000, dated December 11, 1885, payable to the order of one Toncray, five years after date, at the Farmers' & Merchants' Bank of Freemont, Neb., and was made by one Stenvers. It was given for money loaned by said bank to Stenvers, the payee, Toncray, being an officer of the bank; and was secured by a mortgage to Toncray upon land in Nebraska. After it was given, and some time prior to 1890, the officers of said bank organized the Nebraska Mortgage & Investment Company to carry on the mortgage loan business of the bank, and this investment company succeeded the bank in the loan business, and Toncray became an officer and the manager of said investment company. The defendants are brokers in New Haven, and have been engaged in selling loans for said bank and said investment company and other western companies and agencies, receiving a mission from such companies for such sales. The note in question, with the mortgage securing the same, was sold to the plaintiff in December, 1885, by Alfred Walker, who was then engaged in the business since carried on by the defendants, and whom they succeeded in business. Said note and mortgage had been sent by the bank to Alfred Walker to be sold. The note was indorsed by Toncray without recourse, but the mortgage was never assigned by Toncray. The note remained the property of the plain

tiff till it was paid, December, 1890, and during this time the interest upon it was paid by Stenvers to the investment company, who forwarded the same to the defendants, and the defendants, by their own check, paid it to the plaintiff. In December, 1890, the defendants were informed by the investment company that Stenvers desired to pay the note, and requested them to forward the papers to it, to the end that payment might be made. Thereupon, in that month, at the defendants' request, the plaintiff sent the note and mortgage to them for collection, and received from them the following receipt: "$1,000.00. New Haven, Dec. 12, 1890. Received for collection the farm mortgage of John Stenvers of Dodge Co. Neb. 72 per cent. amount one thousand dollars, date Dec. 11, '85 due Dec. 1, '90, with all papers pertaining thereto, the same being the property of Timothy Gilbert. The Alfred Walker Co." The defendants forwarded the papers, as requested, to the investment company, and on the 28th of January, 1891, were informed by letter from said company that Stenvers had paid the note to it on the 27th of December, 1890. The investment company never forwarded any of the money so collected to the defendants, nor have the defendants in any manner received any benefit from the payment of said note. In December, 1891, the investment company became insolvent, and its property and affairs were placed in the hands of a receiver. Between December 1, 1890, and December, 1891, the plaintiff called two or three times upon the defendants, and inquired about the note; and the defendants informed him each time that they had not received the money, but that they expected it soon. It was not proved that the defendants, between December, 1890, and December, 1891, took any other steps towards collecting the note than the forwarding of it as aforesaid, nor that they informed the plaintiff of their knowledge that it had been paid. At the time the note was paid to the investment company, the defendants had in their hands for sale notes and mortgages belonging to the investment company to the amount of about $10,000, which, upon the books of the investment company, were charged to the defendants; and the investment company, upon receiving payment from Stenvers, credited the defendants with the amount paid. The defendants, however, fully accounted to the investment company for all of said loans, and they had no knowledge that the investment company had charged them with the amount of said loans, or had credited them with the amount of said payment. The investment company had no authority to do either, and it knew the note and its proceeds belonged to the plaintiff, and not to the defendants. In his dealings with Alfred Walker and the defendants respecting the note and mortgage, the plaintiff understood that Walker and defendants were acting as the

agents of some other company or agency, and understood that the defendants were not themselves to collect the note from the maker, but that they were to forward the same to others for collection at the place where the note was payable, and that the defendants would pay to the plaintiff the amount due on said note when the same should be remitted to them from the investment company. Upon these facts the plaintiff claimed that the defendants had converted the note to their own use, as alleged, and whether the court below erred in overruling this claim is the principal question upon the present appeal.

As already stated, the only wrong alleged, and the only matter in issue, was the conversion of the note. The plaintiff does not sue for the proceeds of the note, nor for any claimed negligent or wrongful conduct of the defendants in respect to the collection of the note or its proceeds; but for the loss and conversion of the instrument itself, the paper upon which Stenvers' promise was written. To that specific wrong, and to that alone, he has himself limited his proof, and for that, and for that alone, he has limited his right of recovery. Ives v. Town of Goshen, 63 Conn. 79, 26 Atl. 845; Sanford v. Peck, 63 Conn. 486, 27 Atl. 1057. Unless, then, the facts found show a conversion of the note, the plaintiff cannot recover in this suit. Conversion is usually defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. Laverty v. Snethen, 68 N. Y. 522. It is some unauthorized act, which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion, and to his harm. Poll. Torts, p. 290. In the light of these principles, it is impossible to say that the conduct of the defendants amounted to a conversion of the note in question. The note was payable at the bank in Nebraska, and the payee of the note was the owner of record there of the mortgage made to secure it. Even if the defendants had agreed, as the plaintiff claims, to personally collect the note, they were at liberty to do it through the investment company, if they chose to take the risk of so doing. This certainly authorized them to forward the note in the manner they did, and authorized the bank to receive payment of the note. The defendants promptly forwarded the note, and it was promptly paid. As a note it then ceased to be the property of the plaintiff. and in place of it he became the owner of the amount paid. It thus appears that every act done with respect to the note, from the time it came into the defendants' hands until It was paid and delivered up and ceased to

be the property of the plaintiff, was done by his authority and with his assent. The defendants, then, did nothing with the note which they were not authorized by the plaintiff to do. In Palmer v. Jarmain, 2 Mees. & W. 282, an agent was authorized to get a note discounted, which he did, and appro priated the avails. It was held that this was not a conversion of the note, because he did nothing with that save what he was authorized to do. The case at bar comes clearly within the principle here applied. It may be, as claimed by the plaintiff upon argument before this court, that the defendants are or should be liable to him in some form of action for their acts and conduct since the payment of the note, and with reference to the money, the proceeds of the note. How this may be we have no means of knowing, as the matter is not before us in any manner; but, whatever wrongs the defendants may have done to the plaintiff in the premises, it is quite clear that their acts and conduct do not constitute a conversion of the note.

There remains to be considered very briefly the matters set forth in the last reason of appeal, relating to the admission of testimony. The defendants, for the purpose of showing that in their transactions respecting the note they were acting as the agents of the Ne braska bank and of the investment company, offered the testimony of one James Walker, who had been a clerk in the office of Alfred Walker, deceased, and also certain letters from the investment company to the defendants, showing all the transactions be tween the defendants and said bank and said company with reference to the note in question, and showing the original sale of said note by Alfred Walker to the plaintiff. The plaintiff objected to this testimony on the sole ground that the receipt given by the defendants to the plaintiff, and herein before set forth, constituted a contract on the part of the defendants with the plaintiff to personally collect said note, and that the evidence in question contradicted the writing. The court overruled the objection. Looking at all the facts and circumstances under which the receipt was given, we are inclined to regard it as a mere receipt.-a mere admission of a previous fact or facts.--and not as containing any contract. The defendants were not attorneys at law engaged personally in the collection of claims of this kind. They mere brokers, acting as agents for others; and this was well known to the plaintiff. As such they had acted, to his knowledge, for the investment company, in the matter of the collection of interest on his note. When the note is about to become due, they inform him that the investment company want the note and mortgage sent on for payment, and ask him to send the papers to them for the purpose of being forwarded to that company. He does as requested, and after this the receipt is made out and forwarded to him, describing the