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already owned by Currier. Upon the discovery of the facts, they brought this bill, asking to be restored to the rights which they assigned because of the mutual mistake of all parties concerned. The settlement, having been made upon an honest mistake of material facts, should be set aside, unless there is an estoppel. Wiswall v. Harriman, 62 N. H. 671, 672. The defense is set up that the answer of Samuel W. Thompson to the original bill in equity brought by Currier and Pease, in which Thompson alleged that the title to the property was in his wife, under the Wentworth claim, created an estoppel against the setting up by him or his privies of title under the Bellows claim. No decree was ever made in that case, the bill having been dismissed by agreement as to all parties interested as plaintiffs in the present proceeding. Conceding that this answer might be treated as a technical disclaimer, it would not estop the party pleading it until final judgment. Wells v. Iron Co., 50 N. H. 85.

At the time of the settlement there were, or had been, two claims of title,-one under the plaintiffs' mother, as mortgagee, and the other under their father, as the owner of the equity. Currier had attempted to levy upon the latter interest, and both he and the plaintiffs believed that he had done so. All that the plaintiffs then had to rely upon was the mother's mortgage title, and, if this failed, they had no claim upon the property. In this state of the facts, and while the plaintiffs were claiming by their pleadings that the mother's title was valid, the settlement was made. From this it is argued that the plaintiffs are estopped to deny the truth of their allegation, because the defendants acted upon it and bought the claim. It is a familiar rule of law that one who has induced another to act, by means of represen tations of facts which he knew or ought to have known were untrue, cannot deny those facts to the other party's disadvantage. But it is not found that Currier's action in making the settlement was based upon the truth of the representations, nor even that he believed them to be true. A representation of fact not acted upon and not believed is not a foundation for an estoppel în pais. Moore v. Bowman, 47 N. H. 494, 499; Stevens v. Dennett, 51 N. H. 324, 334; Town of Pittsburg v. Danforth, 56 N. H. 272, 278; Howes v. Fisk, 67 N. H. 289, 30 Atl. 351. Not only is it not found that Currier believed in Eliza's claim, but the inference is the other way. If that claim was well founded, she had a perfect title to the property, and Currier had no claim enforceable against it, except, perhaps, some mortgages. All his claims against the estate of Samuel were then worthless, for that estate consisted almost entirely of Samuel's claim to the grant. Currier's claims against Thompson & Ricker were in about the same situation. The mother was living, and, unless William inherited something from his father, there was nothing from which to collect the Thompson & Ricker notes. In ex

change for Eliza's claim of title, Currier gave $500 in money and these comparatively worthless notes. If that claim was well founded, he bought property worth more than $12,000 for substantially $500. It is manifest that he did not rely upon the truth of the assertion that Eliza's title was valid. On the other hand, when the situation of the parties is considered from the plaintiff's standpoint, it is clear that, as found by the referee, they relied upon Currier's representations as to his title (i. e. his pleadings), and acted to their injury. While both parties believed that Currier owned Samuel's interest, Currier knew the facts which, as a matter of law, established a lack of ownership. His ignorance was of the law, while theirs was of the facts. Whatever equities there are in the situation seem clearly to be with the plain. tiffs.

It is further argued that the plaintiffs are estopped because of the proceedings against the estate of Samuel after the settlement of 1895. To sustain this position, it is shown that executions against him, held by Currier, and duly presented to the commissioner appointed by the probate court, were neither allowed nor disallowed, and that the time for appealing from the acceptance of his report has expired. It is not necessary to consider the effect of these proceedings, for the plaintiffs agree that these claims may be considered valid.

The report of the referee is that the compromise should be set aside unless the facts reported show an estoppel. As those facts fall short of this, and no error of law appears in the general finding, the plaintiffs are entitled to relief. There has been a common mistake as to an essential fact forming an inducement to a contract. Not only do the circumstances justify the inference that the agreement would not have been made if the truth had been known, but the referee has so found as a fact, and the contract is voidable. Wiswall v. Harrimon, 62 N. H. 671, 672.

The plaintiffs are entitled to have the compromise of 1895 set aside, and the sheriff's sale of 1893 decreed invalid, upon making full restoration to the defendants. They must pay all the claims which the defendants, or either of them, could have established against the estate of Samuel at the date of the settlement, and all such sums as were paid in carrying out the compromise, with interest, and must surrender the releases, etc., received in pursuance of the compromise. They must also pay the Thompson & Ricker notes. At the time of the settlement, suits were pending for the collection of them, and whatever rights Currier or Pease had by attachment or otherwise may have been lost. It appears that such is the fact as to William F. Thompson's interest in the grant. The burden of now attempting to enforce payment of these notes by a levy upon his interest in the property, and an overthrow of his intervening conveyance thereof, ought not to

be imposed upon the defendants. "A court of equity is always reluctant to rescind unless the parties can be put back in statu quo. If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively demands it." Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798. It may be that the full payment of these notes will give the defendants more than they could have obtained as the facts were when the settlement was made, but it cannot be said that anything less will be certain to do them full justice. As he who seeks equity must do equity, the plaintiffs must restore the defendants to their former situation before receiving the equitable relief asked for. Upon a compliance with these conditions within such reasonable time as the court at the trial term shall order, there will be a decree for the plaintiffs; otherwise, the bill will be dismissed. Case discharged. All concurred.

(70 N. H. 47)

HALL V. HALL et al.

(Supreme Court of New Hampshire. Strafford. March 16, 1900.)

CONVEYANCE AS SECURITY-DOWER.

A husband, before his marriage, conveyed land as security, and received a bond for reconveyance on the payment of the debt. After his death his administrator paid the debt, and had the property conveyed to himself for the use of the estate. Held, that the widow did not acquire a dower interest in such property, as the conveyance was fraudulent, and transferred all the husband's interest, under Pub. St. c. 139, §§ 1, 2, providing that no conveyance of lands in writing shall be defeated, or estate incumbered, by an agreement, unless it is inserted in the condition of conveyance.

Appeal from probate court, Strafford county.

Suit by Anna E. Hall against Arthur E. Hall and others to recover dower. From a decree refusing dower, plaintiff appeals. Dismissed.

Worcester, Gafney & Snow, for appellant. George E. Cochrane and John Kivel, for appellees.

PEASLEE, J. The deed to Deborah Felker, being accompanied by a secret trust, was voidable as to the grantor's creditors. Stratton v. Putney, 63 N. H. 577, 4 Atl. 876. But as between the parties it was a valid contract. Esty v. Long, 41 N. H. 103. The parties intended that the deed and bond should operate only as security. While no other inference can be drawn from their acts, yet the transaction cannot be treated as a mortgage, because of the prohibition of the statute. Pub. St. c. 139, §§ 1, 2; Tifft v. Walker, 10 N. H. 150; Gordon v. Gordon, 54 N. H. 152. Hall had a right to a conveyance upon the performance of certain conditions. This right having been created simultaneously with the grant, the grantee acquired no such seisin as would support a dower right as against Hall. Hunkins v. Hunkins, 65 N. H. 95, 99, 18 Atl. 655;

Hallett v. Parker, 69 N. H. 134, 39 Atl. 583. On the other hand, Hall had not sufficient interest to support such a title in his widow. Conceding that it is the law that the holder of an equitable title has sufficient seisin to support a claim of dower (compare 1 Perry, Trusts, 324, 1 Washb. Real Prop. 202 et seq., and 4 Kent, Comm. 45, with Hopkinson v. Dumas, 42 N. H. 296, 306), it cannot avail this plaintiff. The equitable title required for this purpose is a present right to enforce in a court of equity a demand either for a legal title, or for the beneficial use of the property. Pugh v. Bell, 2 T. B. Mon. 125, 15 Am. Dec. 142; 1 Perry, Trusts, § 324. This is more than Hall possessed. He had only a right to obtain title upon performing the condition of the bond. He owned an executory contract, but neither a legal nor equitable title to the real estate. If the condition had not been performed, Deborah's title would have been complete without foreclosure or further conveyance. The bond was personal property, and the fact that the administrator converted it into real estate, instead of selling it, does not change the nature of the estate in his hands. Vandewalker v. Rollins, 63 N. H. 460, 464, 3 Atl. 625. Appeal dismissed. All concurred.

(70 N. H. 34)

DICKEY V. BOSTON & M. R. R. (Supreme Court of New Hampshire. Rockingham. March 16, 1900.) RAILROADS-NEGLIGENCE-QUESTION FOR JURY.

Where plaintiff's sled, while "set" on a highway crossing of a railroad in consequence of the crossing being bare of snow, was run into by a train and injured, whether the duty of the railroad company to keep the highway in a safe condition for public use included keeping the crossing covered with snow was a question of fact for the jury.

Action by Lyman A. Dickey against the Boston & Maine Railroad. A case was made for the supreme court upon agreed facts. Case discharged.

The plaintiff's sled, while "set" upon a highway crossing of the defendants' railroad in consequence of the crossing being bare of snow, was run into by one of the defendants' trains and injured. If it was the duty of the defendants to keep the crossing covered with snow, the plaintiff is to have judgment.

Daniel J. Daley, for plaintiff. Oliver E. Branch, for defendants.

CHASE, J. It was the duty of the defendants to keep the highway crossing in a reasonably safe and convenient condition for public use. Pub. St. c. 159, §1; City of Concord v. Boston & M. R. R., 69 N. H. 87, 38 Atl. 378. Whether it should have been covered with snow, to put it into such condition, is a question of fact. Boothby v. Railway, 66 N. H. 342, 34 Atl. 157. Case discharged. All concurred.

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1. A wife compelled to live apart from her husband by his misconduct has authority to pledge his credit for necessaries adapted to her condition, though she has ability to provide for herself.

2. The statutes enabling married women to hold property to their own use, and enlarging their rights and liabilities, do not affect the wife's right to pledge her husband's credit for necessary medical attendance, nursing, and board while compelled to live apart from him by his misconduct.

3. A party giving notice of the taking of a deposition is not liable to the adverse party for costs, under Pub. St. c. 225, § 12, for neglecting to take it, where the witness attends and submits to an examination in part, but refuses to complete it, and neither party requests compulsion.

Actions by George J. Ott and others against Samuel Hentall. Judgments for plaintiffs,, and defendant's exception to rulings on a question of costs overruled.

Assumpsit. Facts found by the court. The defendant so treated his wife as seriously to injure her health, in consequence of which she left him. After this the plaintiffs furnished her, at her request, medical attendance, nursing, and board; she pledging the defendant's credit for the same. Hutson made a bill against the wife, but was told by her that the defendant was obliged to pay it. The services, etc., were necessary for her recovery, and were adapted to her condition. Each of the plaintiffs knew that she was living apart from her husband. She had $700 or $800 on deposit in a savings bank. Α feeble-minded son was partially dependent upon her for support. Judgments are to be rendered for the parties entitled to them upon the foregoing facts. The defendant attended a caption of a deposition in Massachusetts, agreeably to a notice given by Hutson. The witness, after testifying in part, refused to complete the deposition. Both parties desired that the witness should complete it, but no request was made by the defendant for means of compulsion, and Hutson understood that compulsion could not be resorted to. The court ruled, subject to the defendant's exception, that he was not entitled to costs, under section 12, c. 225, Pub. St., for attending the caption.

Dearborn & Chase and Burleigh & Adams, for plaintiffs. Lewis W. Fling and Alvin F. Wentworth, for defendant.

CHASE, J. "Marital rights and duties are established by law." Among them is the obligation of the husband to suitably maintain his wife according to his circumstances in life. He cannot relieve himself of the duty by his own misconduct. If he compels his wife to leave him, and does not make

suitable provision for her support, she carries with her authority to obtain upon his credit necessaries of life adapted to her condition and his circumstances. Town of Rum- · ney v. Keyes, 7 N. H. 571; Pidgin v. Cram, 8 N. H. 350; Allen v. Aldrich, 29 N. H. 63; Walker v. Laighton, 31 N. H. 111; Tebbets v. Hapgood, 34 N. H. 420; Morris v. Palmer, 39 N. H. 123, 126; Ray v. Adden, 50 N. H. 82, 83; Sceva v. True, 53 N. H. 627, 631; Ferren v. Moore, 59 N. H. 106. Accurately speaking, this authority is not referable to the law of agency. It may be exercised against the will of the husband. It is not revoked by his insanity. The law gives it "by force of the relation of husband and wife." Read v. Legard, 6 Exch. 636. It has been designated "authority from necessity." Johnston V. Sumner, 3 Hurl. & N. 261. And the agency has been termed "agency in law" or "agency of necessity." Eastland v. Burchell, 3 Q. B. Div. 432, 435, 436; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77. It is authority to do for the husband "what law and duty require him to do, and which he neglects or refuses to do for himself, and is applicable as well to supplies furnished to the wife when she is sick, insensible, or insane, and to the care of her lifeless remains, as to contracts expressly made by her." Accordingly it was decided in Cunningham v. Reardon, 98 Mass. 538, that the husband was liable for the reasonable funeral expenses of his wife, whom he had compelled by cruelty to leave him, and who had died while living apart from him. Raynes v. Bennett, 114 Mass. 424, 428; Alley v. Winn, 134 Mass. 77, 79. See, also, Staples' Appeal, 52 Conn. 425, in which it was held that a husband could not charge his wife's estate for her funeral expenses. There are authorities which hold that where necessaries are furnished a wife living apart from her husband without her fault, and she has funds of her own, the liability of the husband depends upon the question of fact whether her means are adequate to her support. Liddlow v. Wilmot, 2 Starkie, 86; Dixon v. Hurrell, 8 Car. & P. 717. The defendant relies upon Hunt v. Hayes, 64 Vt. 89, 23 Atl. 920, 15 L. R. A. 661, and Litson v. Brown, 26 Ind. 489, in support of this proposition. In the firstnamed case the plaintiff, who was the father of the defendant's wife, sought to recover for necessaries furnished her while living apart from the defendant under such circumstances as would enable her to pledge his credit unless she was prevented from doing so by the fact that she received $2,000 annually from him by virtue of an antenuptial contract. The decision, which was not unanimous,-Munson, J., dissenting,-was founded largely upon the authority of Warr v. Huntly, 1 Salk. 118, Liddlow v. Wilmot, and Litson v. Brown. The entire report of Warr v. Huntly is as follows: "The case was: An ordinary workingman married a woman' of the like condition, and after cohabitation for some time the husband left her, and during his absence the wife worked; and, this ac

tion being brought for her diet, it was held that the money she earned should go to keep her." These statements are so general that the case is not a very satisfactory authority, especially in view of the fact that on the same page of the report there is another case (Etherington v. Parrot) in which the same Judge (Holt, C. J.), in the course of the opinion, said: "If a husband turns away his wife, he gives her credit wherever she goes, and must pay for necessaries for her,"-and on the following page still another case (Robinson v. Greinold), in which he said: "Though the wife be ever so lewd, yet while she cohabits with her husband he is bound to find her necessaries, and pay for them; for he took her for better, for worse.

So, if he runs away from her, or turns her away." In Liddlow v. Wilmot it appeared that the wife had £100 a year and some plate, but it did not appear from what source she obtained them. Lord Ellenborough submitted to the jury the question whether she was provided with resources adequate to her situation, with the instructions that "if so, and particularly if she has derived that provision from him, the action cannot be maintained. The only credit given to the husband is an implied one, which arises from his situation and the inadequacy of the funds of the wife.

*

"It

* If so [she was adequately provided for], the circumstance repels all idea of implied credit." If the husband actually provides his wife with resources sufficient for her support, he performs his duty, and there is no ground upon which an implied promise to pay for necessaries can arise. But, if he does not provide the resources, it is difficult to understand why the wife's marital right and the husband's marital duty do not remain unsatisfied. The right and correlative duty do not depend upon the inadequacy of the wife's means, but upon the marriage relation. In Hunt v. Hayes the court, in referring to the agency arising from necessity, mentioned in some of the cases, says: logically follows that when there is no necessity there can be no agency, for 'cessante ratione legis, cessat ipsa lex'; and there can be no necessity when the wife has means of her own with which she can supply herself." But the necessity referred to in these cases is not so narrow in its scope as seems to be here indicated. It comprehends the wife's need that the husband's duty shall be performed. The husband's obligation creates the necessity for the agency, if it be so termed, not the fact that she would otherwise be destitute. In Litson v. Brown, two months after the defendant's wife left him because of his improper conduct, he induced her to sign a deed of real estate by causing the purchaser to pay her one-third of the purchase money. The plaintiff boarded her both before and after this transaction. It was held that the defendant was liable for the board furnished prior to the wife's receipt of the money, but was not liable for that furnished afterwards, because the wife was possessed of means 47 A.-6

sufficient to supply her reasonable wants and necessities. The decision is based upon Liddlow v. Wilmot and Dixon v. Hurrell, and text-books citing these cases. It will also be noticed that the wife's means came from the husband. See, also, Eiler v. Crull, 99 Ind. 375; Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Scott v. Carothers, 17 Ind. App. 673, 47 N. E. 389. Concerning the reasons given for the decisions in these cases, it is sufficient to say that they seem to be inconsistent with the character of the obligation which the law imposes upon the husband as a part of the marriage relation. Marriage is founded on the idea that the parties will establish a home and rear a family. The husband is by nature, as well as by law, the leading and responsible party in the undertaking. Among other things, he takes upon himself the duty of providing a home and suitably maintaining the wife and children. The wife's ability to provide herself with the necessaries of life does not relleve him from the duty while they live together, and no good reason is perceived why it should do so while she is living apart from him in consequence of his misconduct. The duty is taken into consideration in awarding alimony to the wife in connection with or after a divorce. Morrison v. Morrison, 49 N. H. 69, 73; Janvrin v. Janvrin, 59 N. H. 23. If the wife does not desire a divorce, or the husband's misconduct has not continued a sufficient length of time to constitute a cause for divorce, the court, upon petition of the wife, "may make to her reasonable allowance out of the estate of the husband for the support of herself and children." Pub. St. c. 176, § 4. The fact that the wife has means of her own does not deprive her of the right to alimony in the one case, or to an allowance in the other. So far as her right and the husband's correlative duty are concerned, the necessity for clothing her with authority to obtain necessaries upon the husband's credit exists when she has means the same as when she has none. This is the necessity upon which the law bases the husband's implied promise when he fails in the performance of his duty.

It follows from the foregoing considerations that the statutes of the state enabling married women to hold to their own use property acquired by them, and enlarging their rights and liabilities, do not affect this question. These statutes have not taken away the right of either party to the marital contract to have the affection, society, and aid of the other. Cross v. Grant, 62 N. H. 675; Seaver v. Adams, 66 N. H. 142, 19 Atl. 776. While the wife is at liberty to provide herself, her husband, or her children with the necessaries of life at her own expense or upon her own credit, the duty of supplying them rests by law upon the husband. Parsons v. McLane, 64 N. H. 478, 479, 13 Atl. 588. The circumstances disclosed in this case were such that the defendant's wife had authority to pledge his credit for the necessaries which

she obtained from the plaintiffs. Whether she did so was a question of fact which has been determined in the plaintiffs' favor. Hutson's bill against the wife was not conclusive evidence upon the question. Walker v. Richards, 41 N. H. 388. The plaintiffs are entitled to judgments.

reason of the negligence of the city's officers or agents, may recover therefor against the city, notwithstanding the city was in the performance of a public duty.

2. Under Laws 1871, c. 69, § 5, authorizing a city to establish waterworks and place them under the direction of a superintendent or board of water commissioners, or of both, with such powers as may be prescribed by the city council, the city passed an ordinance establishing a board of water commissioners, to whom it intrusted the entire management of its waterworks, but reserved the right to remove such commissioners. Held, that the commissioners were the city's servants or agents, and hence the city was liable for their acts.

3. It is no defense to an action for personal injuries against a city by a servant in the city

be against the water precinct, which includes only a portion of the city, and is a quasi municipal corporation, and not against the city, since the water commissioners, being officers of the whole city, are answerable to the city, and not to the precinct.

Action by Edward Rhobidas against the city of Concord for personal injuries. Demurrer to answer sustained.

"If any party after giving notice to the adverse party neglects or refuses to take a deposition, the adverse party may be allowed as costs such amount as the court may deem equitable, not exceeding twenty-five cents a mile for actual travel of himself or his attorney to attend the same, and may have judgment and execution therefor unless no-waterworks department that the action should tice in writing that the deposition will not be taken, signed by the party giving the original notice, is seasonably given to such adverse party." Pub. St. c. 225, § 12. Under the previous statutes on the subject, the remedy of a party aggrieved by a failure to take a deposition was an action on the case. Rev. St. c. 188, § 22; Gen. Laws, c. 229, § 10; Powers v. Hale, 25 N. H. 145. Now he is not required to bring a separate action, but may be allowed as costs an equitable sum for actual travel, and have judgment therefor in the action in which the deposition was to be taken. The provision was designed to afford the party compensation for expenditures resulting in no benefit to himself, because of the neglect or refusal of the adverse party to take depositions agreeably to notice. Wilson v. Knox, 12 N. H. 347, 350. In construing the earlier statutes it was held that the party giving the notice was liable, although he used diligence in attempting to procure the attendance of the witness, but without success. Voght v. Ticknor, 47 N. H. 543; Robertson v. Railroad, 63 N. H. 544, 3 Atl. 621. In this case the witness attended the caption, and submitted to examination in part. So far as appears, the magistrate had jurisdiction of the matter of taking the deposition and of the witness. The defendant had the same opportunity and means of compelling the witness to complete the deposition that Hutson had. Hutson neither neglected nor refused to take the deposition, but began the taking, and was desirous of completing it. One party was as much in fault for not having it completed as the other. It would seem to be grossly inequitable to require Hutson to pay costs on account of the failure. The defendant's exception must be overruled. Judgments for the plaintiffs.

PIKE, J., did not sit. The others concurred.

(70 N. H. 90)

RHOBIDAS v. CITY OF CONCORD.
(Supreme Court of New Hampshire. Belknap.
March 16, 1900.)

MUNICIPAL CORPORATIONS - PERFORMANCE
OF PUBLIC DUTY-INJURIES-ACTION-LIA-

BILITY-WATERWORKS-OFFICERS.

1. A servant in a city waterworks department, who has received personal injuries by

Case for personal injuries alleged to have been caused by the defendants' negligence while the plaintiff was employed as a servant in their waterworks department. The defendants pleaded specially that they are a municipal corporation maintaining the waterworks solely for fire purposes and for the benefit of their citizens, without profit to the city; that, by virtue of an ordinance of the city passed under authority of an act of the legislature, the sole control and management of the waterworks are vested in a board of commissioners, whom the city cannot direct or control in the discharge of their duties, and who are not the city's agents; that under the authority of said act the city established a water precinct, which includes only a portion of the city, and is a quasi municipal corporation, in which, and in the waterworks maintained thereby, the defendants have no interest, except in a purely governmental or legislative capacity. The plaintiff demurred.

Walter S. Peaslee and E. A. & C. B. Hibbard, for plaintiff. Sargent & Niles, for defendants.

PEASLEE, J. The plaintiff's demurrer raises the question whether there is in this state any common-law liability of a municipal corporation, and, if there is, whether it exists in the class to which the present case belongs. While it is the law of this jurisdiction that towns are to a certain extent a part of the state, and therefore not suable at common law, no case has gone so far as to hold that this rule applies to all cases. There are some expressions in Wooster v. Town of Plymouth, 62 N. H. 193, which might, taken alone, bear such interpretation; but that this is not their meaning is apparent from the fact that the opinion is expressly limited in its application to the corporate rights of towns "so far as they are involved in this suit," and relates to "their purely public capacity." Id. 221. The expressions are su

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