Leete v. Norton.

that and all that which he undertook to do. The defendant would have obtained a property more valuable, in his estimation, than the one with which he had parted; so much more valuable that he preferred paying the plaintiff the compensation demanded for negotiating the contract which enabled him to obtain it.

In looking a little further into this agreement, we find that for the sum of five hundred dollars the defendant was willing, and for that sum he agreed, to discharge Clinton from his obligation to perform this contract. These are the words: "It is further mutually agreed by said parties that if either of them shall neglect or refuse to perform the promises and agreements binding upon him as hercinbefore mentioned, he shall pay to the other on demand the sum of five hundred dollars as liquidated damages."

Now though the plaintiff has not effected a sale or an exchange of the defendant's property, yet he has negotiated a contract for such exchange, agreed to by the defendant, in which contract a sum of money is specified which the defendant agrees to accept, and in consideration of which to relieve Clinton from his obligation to make the exchange of properties. Having thus fixed on the sum of five hundred dollars as an equivalent for the performance of this contract to exchange his property, as between himself and his co-contractor, the defendant cannot be allowed to deny that that sum of money is an equivalent, as between himself and the plaintiff, by whose aid he made the contract.

Whether this sum of money has been received or not does not appear. If it has not been received, means of enforcing payment are at hand. Both on legal and equitable grounds we think the plaintiff is entitled to recover. True, he has not effected an exchange of the defendant's property. Clinton failed to perform the contract, electing, in lieu of performance, to pay, or be compelled to pay, the defendant five hundred. dollars, agreed and pronounced by the defendant to be equivalent to performance. The plaintiff then, having rendered services for the defendant, which he agrees are an equivalent to procuring an exchange of his property, is fairly entitled to

Harris v. Rosenberg.

the same compensation as he would have been entitled to had the exchange been effected.

We advise the court below to render judgment for the plaintiff for the amount named.

In this opinion the other judges concurred.

JACOB HARRIS vs. DAVID ROSENBERG AND ANOTHER.

The defendants entered the store of the plaintiff and carried off a quantity of goods. They first put up a quantity in one package, which one of the defend ants carried away, while the other remained and selected goods for another package, which, on the return of the first defendant, they together carried away. Held that the whole might properly be regarded as one trespass. Where the date of some transaction is material and in dispute, it may be shown by the date of some other transaction not in dispute, which stands related to the date inquired after.

And such undisputed date may be inquired after on the cross-examination of a witness, both for the purpose of fixing dates and for that of testing his memory.

The matter in both cases lies within the sound discretion of the court. Where one of two defendants in an action of trespass was a minor and no guardian ad litem was appointed, and the court therefore rendered judgment only against the other defendant, it was held that the latter was not aggrieved by the error, if it was one.

But held to be no error.

The rule that all things are to be presumed against a wrong-doer applies properly to cases where such wrong-doer withholds evidence which he might produce and which would show the real fact, and relates particularly to questions of the quantity and value of articles which such wrong-doer has taken or with which he is chargeable.

But the rule does not apply to a case where, from the wrongful taking of certain articles, it is inferred that others that are missing and were in the same place, were taken by the same person. This is a case of probability, of more or less weight according to the circumstances, but not of presumption under the rule.

TRESPASS for taking and carrying away the goods of the plaintiff; brought to the Court of Common Pleas in New Haven County, and heard in damages after demurrer overruled, by Robinson, J.

Harris v. Rosenberg.

The goods in question were a large quantity of furnishing goods of various kinds, kept by the plaintiff in his store in Ansonia in this state. Upon the hearing it appeared that the defendants, David Rosenberg, and Carrie Rosenberg, who was his daughter, with one Brocksieper, entered the store, in the absence of the plaintiff, about noon on the 28th of December, 1874, for the purpose of unlawfully taking the goods; that they all three remained in the store selecting and packing such goods as they desired to take, for about half or threequarters of an hour; that Brocksieper and David Rosenberg then left the store, and carried part of the goods over to the dwelling-house of the latter in Ansonia, leaving the other defendant, Carrie Rosenberg, in the store, selecting and putting up goods; and that after they had taken the goods to the house, David Rosenberg immediately returned to the store, and, with Carrie Rosenberg, took away the remainder of the goods so selected and put up.

To this evidence of the taking away of any goods from the store, other than the goods taken the first time in company with Brocksieper, the defendants objected, claiming that under the declaration the plaintiff could prove but one trespass, and that having elected the first taking away of goods as the trespass, he could offer evidence as to no other. But the court found that the two carryings away were merely parts of one continuous transaction, and held that they constituted but one trespass, and admitted the evidence.

The plaintiff offered as evidence the notice of the assignment of a certain note which the plaintiff owed to the defendant David Rosenberg (and to obtain the amount of which the latter claimed to have taken the goods in question), which note was non-negotiable, and which the plaintiff claimed this defendant had assigned to Brocksieper, at or about the time. of the taking, and had given the plaintiff notice of such assignment in writing; and the plaintiff claimed to offer the written notice of assignment as evidence for the purpose of fixing certain dates claimed to be material, and of testing the memory of this defendant in relation to such dates, and also of testing the memory on the same dates of Brocksieper, who

Harris v. Rosenberg.

was offered as a witness by, and who testified as a witness for, the defendants, and for no other purpose. To this evidence the defendants objected; but the court received the same for said purpose of fixing dates subject to the objection, and did not rule the same out afterwards.

The defendants in introducing their case offered the testimony of Isaac Rosenberg, brother of David Rosenberg, as to certain interviews that he had with the plaintiff, and as to the value of the goods in question. The plaintiff, upon the crossexamination, inquired as to the notice of the assignment of the note referred to, and as to the date of the same, whether it was the true date; it being claimed by the plaintiff that the assignment was made and notice made and given by the direction and advice of Isaac Rosenberg, the witness; which evidence was offered for the sole purpose of fixing certain dates and of testing the memory and affecting thereby the credibility of the witness. To these inquiries the defendants objected on the ground that they were immaterial to the issue, and that the plaintiff could not cross-examine upon matters not opened upon the direct examination by the defendant. But the court overruled the objection and admitted the evidence for the purpose of testing the memory of the witness.

It was claimed by the defendants that if the court should be in doubt upon the evidence as to the quantity or value of the goods taken, the defendants were entitled to the benefit of that doubt, and that the rule of law was so that the presumption was in favor of the defendants in case of such doubt. But the court, being in doubt as to such quantity and value, held that the presumptions of law, so far as there were any, upon the questions of quantity and value, were in favor of the plaintiff and against the wrong-doer, and that in case of doubt the largest quantity and the highest value were to be regarded as the true ones, and applied this principle to the decision of this case.

It appeared during the hearing that the defendant Carrie Rosenberg was a minor under the age of twenty-one years, and that the other defendant was her father; but that no guardian or next friend appeared for her in the cause, or upon

Harris v. Rosenberg.

the hearing, and that no guardian had been appointed for her by the court; and thereupon the court assessed damages against David Rosenberg, and did not assess damages against the minor, or tax costs in her favor. The damages assessed were the full amount claimed by the plaintiff in his writ.

David Rosenberg moved for a new trial for error in the rulings of the court.

S. L. Bronson and J. P. Phillips, in support of the motion.

W. B. Wooster and D. Torrance, contra.

LOOMIS, J. The motion presents as grounds for a new trial four questions made in the court below, which we will very briefly consider.

1. It seems that three persons were concerned in the alleged trespass, which consisted in selecting from the goods of the plaintiff in his store a large number of small articles, and carrying them away in two separate parcels. While two of the trespassers were carrying away the first parcel to the house of one of them near by, they left Carrie Rosenberg, the other defendant, in the store selecting and putting up another package of goods to be ready on their return. They did return very soon, and together with said defendant, Carrie, took away the other package so selected by her. The evidence of the taking away of the last-mentioned package of goods was objected to by the defendants, as constituting a distinct trespass, only one trespass being alleged in the declaration.

The court, very properly we think, disposed of this objection. by finding that the two acts were merely parts of one continuous transaction, and therefore admitted the evidence.

2. The evidence of the date of the notice of the assignment to Brocksieper, one of the trespassers, of a note which the plaintiff owed David Rosenberg (to recover the amount of which, the defendants claimed to have taken the goods in question), and which evidence was offered and received for the sole purpose of fixing certain dates claimed to be material, and of testing the memory of witnesses, was, we think, admis