Sheppard v. Atwater Manufacturing Co. R. D. Hubbard, contra, cited Bradley v. Bassett, 13 Conn., 563; Knapp v. White, 23 id., 541; Colgrove v. Rockwell, 24 id., 584; Ashmead v. Colby, 26 id., 312; Welles v. Harris, 31 id., 368; Conklin v. Morton, 40 Ind., 76; Voorhis v. Voorhis, 50 Barb., 119; Pratt v. Stiles, 17 How. Pr. R., 222; Ayrault v. Sackett, id., 507. PARK, C. J. It appears in this case that the court below overruled the remonstrance filed by the defendants to the acceptance of the report of the committee, accepted the report, and rendered judgment in favor of the plaintiff. After this had been done, the defendants filed their motion to recommit the case to the committee. The court, being in doubt whether it had power so to do, reserved the question for the advice of this court, but omitted to set aside the judgment which had been rendered in the case, and the acceptance of the report of the committee, and afterwards, while the record was in this condition, adjourned the term of the court sine die. We think it is clear that the Superior Court now has no power to recommit the report. The court has control over its own orders, decrees and judgments made or rendered during a term, and while the term continues may revoke or annul them as occasion may require. But the court has no such control over judgments rendered at a previous term. How then can the report in this case be recommitted? If the court had set aside the judgment and the acceptance of the report, and continued the case to another term, so that the report now stood before the court unaccepted, then the question would be, whether the court has power to recommit the report for the cause claimed, which is substantially that the facts found by the committee in regard to the contract which was made between the parties, are against the weight of evidence presented before the committee. It seems that the court reviewed the evidence before the committee and heard other evidence upon the subject, and became satisfied that the report was against the evidence in the case, and ought for that reason to be recommitted. The Sheppard v. Atwater Manufacturing Co. fact that the committee stated before the court that in his opinion he had mistaken the weight of the evidence, was of no importance except as evidence upon the subject. The court might have been of a different opinion from that of the committee, in which case it would have found that the report ought not to be recommitted. It is obvious that a motion of this kind necessarily involves a review by the court of all the evidence before the committee, for in no other way can it determine whether or not the report ought, for such cause, to be recommitted. And it is equally obvious that if this case can for this cause be sent back to the committee who has once heard it, it could be referred to another committee for another finding of facts, or the court could set aside the report on the ground that it was against the evidence in the case, and proceed to try the cause de novo. It will hardly be claimed that this could be done, in view of the repeated decisions of this court. Bradley v. Bassett, 13 Conn., 563; Colegrove v. Rockwell, 24 Conn., 584; Ashmead v. Colby, 26 Conn., 312; Knapp v. White, 23 Conn., 541. But does this motion rest, in reality, upon anything else than the naked claim that the finding is against the weight of the evidence before the committee? All questions of law involyed in the trial were determined on the remonstrance. There is no claim of any clerical error in the report, or any error in computation, or that the result in the finding does not accord with the principles adopted by the committee. All that can be said is, that the committee in coming to a conclusion that the plaintiff was engaged for a period of twelve months, as he claimed, instead of six months, as the defendants claimed, gave more weight to certain evidence on the question in favor of the plaintiff, than he afterwards, upon a review of the evidence, thought it entitled to. He' saw the case upon the trial in a different light from what he afterwards saw it, upon a pure, naked question of fact. Which opinion was nearer to being correct? It does not necessarily follow that the last one was. Oftentimes the same evidence will strike different minds differently, and the same mind differently at different times. It is not surprising, Phelps v. New Haven & Northampton Co. therefore, in a closely-balanced case, as doubtless this was in regard to the length of time for which the plaintiff had been engaged by the defendants, that the committee should change his opinion in regard to it. Lord Eldon said in Ex parte Wylie, "I must, when I decided that case, have seen it in a point of view in which, after the most laborious consideration, I cannot see it now." That case, and perhaps the present one, only furnish additional evidence that human judgment is never infallible. We advise the Superior Court that it has no power to recommit the report of the committee. In this opinion the other judges concurred; except CARPENTER, J., who did not sit. JEFFERY O. PHELPS vs. THE NEW HAVEN & NORTHAMPTON COMPANY. A railroad company had agreed to keep in repair certain cattle-passes under the track of its road for the benefit of the owner of the land. Held that, in an action for damages for neglecting to keep the same in repair, the plaintiff could recover only damages up to the time of bringing the suit, and not prospective damages. ACTION ON THE CASE to recover damages for the neglect of the defendants, a railroad company, to keep certain cattlepasses in repair which they had agreed to maintain; brought to the Superior Court in Hartford County, and tried to the court on the general issue before Beardsley, J. Judgment for the plaintiff, and motion for a new trial by the plaintiff for error in the rule of damages adopted by the court. The case is sufficiently stated in the opinion. R. D. Hubbard, in support of the motion, cited 2 Chitty on Cont., 1329; Sedgw. on Dam., 113, 117, 147; 3 Parsons on Cont., 187; Hambleton v. Veere, 2 Saund., 169; Richardson Phelps v. New Haven & Northampton Co. Shaffer v. Lee, 8 Barb., 412; v. Mellish, 2 Bing., 229; Royalton v. Royalton & Woodstock C. E. Perkins, contra, cited Kingdon v. Nottle, 1 Maule & Selw., 365, and 4 id., 53; Luxmore v. Robson, 1 Barn. & Ald., 584; Shaffer v. Lee, 8 Barb., 420; Beach v. Crain, 2 Comst., 86. PARK, C. J. This action is based upon the following clause in the deed from the plaintiff to the defendants of a right of way for the defendants' railroad over the plaintiff's land:"Said company, their successors, and assigns, are to build, and forever keep in repair, all necessary crossings, sluices, culverts, side-drains and other drains, and also the cattlepasses already built." The controversy is in regard to the cattle-passes, which the defendants have neglected to keep in repair, and the question is, whether the plaintiff is entitled to recover damages both past and prospective, or is confined to the damages he had sustained at the time the case was tried. The court assessed the damages up to the time of trial, but no prospective damages; and we think there is no error in this ruling. In Kingdon v. Nottle, 1 Maule & Selw., 365, Lord Ellenborough, in commenting upon the covenant in that case, said, "It is not like a covenant to repair, for the breach of which damages may be recovered now, and again hereafter, and so toties quoties." In Shaffer v. Lee, 8 Barb., 420, the court say, "Damages on a covenant to repair may be recovered now and again." In Beach v. Crain, 2 Comst., 86, the same claim was made as in this case, but the court held, after reviewing the authorities, that repeated actions for continuing neglect to fulfill the obligation to repair could be maintained. Warner v. Bacon, 8 Gray, 397, is another case bearing upon this subject. The non-fulfillment by the defendants of their continuing obligation to keep the cattle-passes in repair, manifestly occa Bull v. Bull. sions continuing injury as time progresses. The obligation is continually broken, and hence the injury is continually occurring. Where this is the case, new actions for new injuries may constantly be brought. We do not advise a new trial. In this opinion the other judges concurred. BUCKLAND W. BULL vs. MARY ANNA BULL. An accord and satisfaction is the settlement of a claim by an executed agreement between the parties in satisfaction of the claim. Where the claim settled is not a money demand, or, if so, is unliquidated, or if liquidated is doubtful in fact or law, any sum, no matter how small, given and received in satisfaction of the demand, will legally satisfy it, however large. Where the claim is a money demand, and liquidated and not doubtful, although it can not be satisfied with a smaller sum of money, yet if any other personal property is received in satisfaction, it will be good, no matter what the value. The court will never, in such cases, inquire into the adequacy of the consideration. For the purposes of an accord and satisfaction it is well settled that no personal property except money has any fixed value, but it will be considered as of the value that the parties fix upon it by their agreement. Where an offer of an accord is made upon the condition that it be taken in full of all demands, the party to whom it is made has no alternative but to refuse it, or accept it upon such condition; and if he takes it, no protest or declaration made by him at the time can affect the case. Where a person gives his signature and outward assent to a contract as known to be understood by the other party, he can not afterwards set up his secret belief as to the meaning and effect of the contract, for the purpose of avoiding its effect under the construction given to it by the other party. BILL IN EQUITY, by a husband against his wife, for an account and delivery of certain furniture and other personal property, claimed to be in her possession and which she refused to give up, and to recover for moneys expended for the benefit of her real estate and for her personal benefit; brought to the Superior Court in Hartford County. The 43 455 61 568 43 455 76 196 |