Dunn v. Hartford & Wethersfield Horse R. R. Co.

horse they had attached at $50. Moody was to give a bill of sale of the wagon, and deliver it to Crilley, who was to sell it to the best advantage, retain $50 of the proceeds of the sale, and pay over the balance to Mooney. Mooney's note was to be canceled, and the suit withdrawn. The bill of sale of the wagon was made, and the wagon was delivered to Crilley, who reported his doings immediately to the defendants' president, at the same time paying him $50. Mooney's note was then given up to Crilley, who has since held the same. The defendants took possession of the horse, and caused the suit to be withdrawn before the return day of the writ. Crilley intended to act and did act solely for the defendants' benefit, and had no interest whatever except as a servant of the defendants. The president of the company was informed by Crilley, at the time, of all the particulars of the transaction, and has never expressed any disapproval. Crilley has spoken to several parties, creditors of Mooney, since the taking of the wagon, as if it were in the defendants' possession, and that it would be delivered up on the payment of $50. The plaintiff made demand of the defendants for the wagon, prior to bringing this suit, and was told by their president, of whom the demand was made, that he knew nothing of it. The wagon was then in Crilley's pos session, but not on the defendants' premises.

The court below found that these facts constituted an agency on Crilley's part, and a ratification of his acts by the defendants, and that the law will imply the same from the facts. Judgment was thereupon rendered for the plaintiff, that he recover of the defendants the value of the wagon, $135, and his costs of suit.

Is this judgment erroneous?

Mooney must have acted in bad faith in selling this wagon, for he knew it was not his, and that he had no right to sell it. Crilley may have acted in good faith, and supposed Mooney to be the owner of the wagon. However that may have been, he got no title to it, for Mooney had none to convey. The defendants are the parties who derive whatever of benefit is derivable from the transaction; they only had an

Goodwin v. Town of Wethersfield.

interest in the matter. exclusively in their behalf.

Crilley had none, and he acted

We see no cause why we should view with any especial favor merely technical reasons for turning the plaintiff round to seek his remedy against Crilley or Mooney, even if they might be liable, as doubtless they are. The facts found seem to us abundantly sufficient to sustain the judgment.

There is no error.

In this opinion the other judges concurred.

LEVI GOODWIN AND OTHERS vs. THE TOWN OF WETHERSFIELD.

A committee upon a petition for the laying out of a highway, having closed the hearing and being in consultation and a majority being in favor of laying out the road, one of the selectmen of the respondent town, who was also interested personally in opposing the road, came to them privately and stated that he could procure the opening of another road by the town that would satisfy all parties, and asked for delay that he might do so, and the committee consented to the delay and informed him that, if his plan succeeded, they would report against the laying out of the highway. The selectman afterwards procured the opening of the substitute road by the town, but it was not satisfactory to the petitioners, and the committee finally reported in favor of the proposed highway. Held that the conduct of the committee, while irregular and improper, was not sufficient reason for setting aside their report.

The petitioners having been in no fault in the matter, and having derived no benefit from the irregularity of the conduct of the committee, ought not to suffer by reason of it.

Where, after the close of a hearing and an adjournment for argument, the respondents offered certain rebutting evidence which they claimed to have discovered since the adjournment, but did not show that they could not have obtained it earlier by reasonable diligence, and the committee refused to open the case to hear it, it was held to be no ground for setting aside their report upon a remonstrance of the respondents.

Where the court fixes by its order a time and place for the hearing before a committee, and directs certain notice of it to be given by them, the committee may yet, after the hearing has commenced, adjourn at its discretion to any later time and any other place, acting reasonably and fairly in the matter, and giving notice to those present.

Where a committee, having completed its hearing as to the laying out of a high.

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Goodwin v. Town of Wethersfield.

way, adjourned without fixing a time and place for a further meeting to assess damages for the land taken, it was held that a notice signed by a majority of the committee, appointing a time and place for such further meeting, which was duly served upon all the land holders interested, was legal and sufficient. Where a new highway, as laid out by a committee, terminated in an open field, at or near a town line, and was not connected at such terminus with any public highway or open thoroughfare, it was held to be no sufficient reason for setting aside the report.

The question in such a case, as to the public convenience and necessity of the road, is one of fact, and can not be reviewed by the court.

PETITION for the laying out of a highway; brought to the Superior Court in Hartford County. The report of a committee in favor of the laying out of the road, was, upon a remonstrance against its acceptance, set aside by the court (Martin, J.,) and a new committee appointed. This committee reported against the laying out of the road, and upon a remonstrance of the petitioners against the acceptance of the report, the court (Beardsley, J.,) accepted it, and dismissed the petition. The petitioners then brought the record before this court by a motion in error. The case is sufficiently stated in the opinion.

H. S. Barbour and S. W. Adams, for the plaintiffs in error.

L. P. Waldo and A. P. Hyde, for the defendants in error.

PARDEE, J. Levi Goodwin and others brought their petition to the Superior Court for Hartford County at the March term, 1873, for the laying out of a highway in the town of Wethersfield. That court appointed a committee to inquire as to the necessity for such new way; which committee, having heard the parties, reported to the court at the September term, 1873, "that the highway prayed for in said petition is of common convenience and necessity.' The town and certain individuals, respondents, remonstrated against the acceptance of this report, and the court at the March term, 1875, set it aside and referred the petition to a new committee, who heard the parties and reported to the court at the same term, that the public convenience did not require the laying out and establishment of the highway prayed for. The

Goodwin v. Town of Wethersfield.

petitioners remonstrated against the acceptance of this last report, but the court accepted it and dismissed the petition with costs. They then filed a motion in error, assigning for reasons that the court erred in rejecting the first report and in accepting the second.

The respondents alleged that there had been irregular and improper conduct on the part of the committee in the performance of their duties, in this, that the committee, having brought their public hearings to a close on the 4th day of September, 1873, subsequently, upon the same day, met by themselves and took an informal vote upon the question which had been submitted to them, a majority voting to lay out the proposed highway; that they met again by themselves upon the succeeding day for consultation; that while in session Mr. Johnson, who was first selectman of the town of Wethersfield, and during the trial had acted as the agent of the town, as well as for himself as an interested individual, came to them privately, and promised that if they would defer further action in the matter he would procure a new highway to be laid out and accepted by the town, which would be satisfactory to all parties; and that they consented to the delay and assured him that if he should carry out his plans they would make a report adversely to the petitioners and contrary to the report they then contemplated making.

In the case of Harris v. Town of Woodstock, 27 Conn., 571, this court said: "As the mode of trial before a highway committee is very different from that before a jury, much less strictness is required in relation to the intercourse between parties or counsel and the triers in one case than in the other." In Wethersfield v. Humphrey, 20 Conn., 226, the report of a highway committee was accepted notwithstanding the fact that they had received a written statement concerning the case from one of the counsel after they had closed their hearing, the court saying, "Were this committee a jury, empaneled to act in court and sworn to decide according to the evidence given in court, and to keep their own counsel, and suffer no one to speak to them about the business or matters in hand but in court, the objection would have great force. But this

Goodwin . Town of Wethersfield.

is not the character of the committee. They may, and they are expected to, hear evidence from all persons who feel an interest, on the ground and elsewhere."

We cite these cases chiefly for the purpose of saying that we do not intend herein to overrule them. The conduct of the committee in the case before us will bear the test of a trial by the rigorous rule applied to jurors; and that rule was thus stated in Pettibone v. Phelps, 13 Conn., 450: "It is now well established by the modern authorities that every instance of misconduct in a juror will not destroy the verdict. The rule extracted from the cases seems to be, that however improper such conduct may have been, yet if it does not appear that it was occasioned by the prevailing party, or any one in his behalf, if it does not indicate any improper bias upon the juror's mind, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside. A contrary rule would in many cases operate most unjustly. It would punish an innocent person for the offense of another. If a juror conducts improperly and violates his duty and his oath, he ought to be answerable for it, and not a party in the cause, who is in no manner accessory to the misconduct. To deprive a party of a verdict which he may have honestly obtained after a protracted and expensive litigation, merely because a juror may have improperly spoken of the cause, when he could have received no benefit from that act of the juror, and his opponent no injury, would seem hardly compatible with a due administration of justice. If, indeed, he, or any agent of his, will approach a juror while the cause is on trial and speak of the subject matter of the suit, it will destroy a verdict in his favor. He ought to know and feel that he may lose but cannot gain by such conduct. Depriving him of his verdict will operate as a punishment for his violation of the law. So, too, if it appear that the unsuccessful party either sustained or might have sustained injury from the juror's misconduct, it is reasonable that a new trial should be granted, that justice may be done between the parties. It is undoubtedly the duty of courts, as far as practicable, to