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Water Company, its successors and assigns, shall forever hereafter have the right to dam and set back the water on the land of said Johu King to the extent the same can be flowed by said dam as now constructed." "Said water company shall forever hereafter have the right to divert in said water pipes, or others to be laid from said dam, all the water that it shall need to supply any useful demand they may have on the line of their present water pipes, or whatever water pipes may be laid in extension or continuance of the water pipes." "All question of damages, compensation, or pay to any of said parties

for any and all acts, past, present, and future, and for all rights herein given and granted, are hereby left to the final arbitrament, award, and determination of [naming three persons]." In accordance with the terms of such submission, the arbitrators named awarded to the plaintiff $300, which, in the language of the written award, was "for all rights and privileges granted by John King to the Fountain Water Company, and in consideration of all damages past, caused by any workmen, agents, and contractors, and for all damages that will hereafter occur to said John King on the land of said King, near said dam, by the continuance of said dam, and the flowage of water over the land of said King"; and awarded to the owners of said mill and mill privilege $300 for damages, as described in the award, "that will hereafter occur or which have occurred" to said named owners "by reason of the diversion of the water of the stream crossed by said dam, through the pipes of said Water Company for all purposes for which said Water Company can use said water." The terms of said award were complied with by said parties. When the dam was constructed it was supposed by all parties that the reservoir thus formed was large enough to furnish and store a sufficient supply of water for the defendant's purposes; but, as the demand for water increased with the growth of the town, the capacity of the reservoir and the flow of the stream proved to be insufficient, and in 1879, and again in 1888, in order to supply the useful demand for water by the inhabitants of said town, it became necessary for the defendant to increase the capacity of the reservoir by raising the height of the dam, so that the water of the stream, which, at certain seasons of the year, had flowed over the dam and to the plaintiff's mill, should be held back, and stored for the defendant's use. The dam was thus raised about eight feet above its original height. While such raising of the dam flooded no land above, excepting what was then owned by the defendant, and diverted no more water than was necessary to supply the proper demands of the people of the described district, it held back and stored for the defendant's use, a considerable quantity of water, which, after the construction of the original dam, and before such raising thereof, had, at certain sea

sons of the year, flowed over the dam, and to the plaintiff's mill, and had been useful to the plaintiff's mill privilege. The depriving the plaintiff of the use of the water so held back and ponded by the raising of the dam is the injury described in the first count of the complaint, and for which the trial court awarded damages to the plaintiff.

This judgment is apparently based upon the conclusion that by the terms of the written agreement of submission and award thereunder the quantity of water which the defendant may divert from the mill privilege below is not to be measured by the needs of the company in order to supply the proper demand of the public, but by the height of the dam as originally constructed. Such is not the correct construction of the language of these instruments. It is true that the contemplated injury by the flooding of the land above the dam was, by the terms of the submission and award, clearly described as that which would result from the use of the then existing dam. As such injury would necessarily be increased by any raising of the dam, its height would naturally be limited by the language of the submission and award. But the contemplated injury to the owners of the water power below was the diversion of the water of the stream so that it would not flow to their sawmill, and nowhere, either in the submission or award, do we find any statement or claim that the quantity of water which would be so diverted or the extent of the injury which they would suffer, would be affected by the height of the dam, or any language showing any intention upon the part of such owners in making the submission, or of the arbitrators in making the award, that the dam was to be limited to its height at that time. We should expect to find no such limitation, if the real purpose of the agreement of submission, as between the owners of the mill privilege and the defendant, was to enable the latter to use the entire stream if required for its purposes; since, if the defendant was to have the right to divert, if necessary, the entire stream, it could make no difference to the owners below whether it did so by raising the dam or by some other means. The language of the recital of the agreement of submission describing the contemplated injury to the mill owners as that which would result to their water power by the diversion of the water of the stream to the extent that such water would flow through the conducting and distributing pipes laid in the streets, the statement in the submission that it was the purpose of the parties to have determined all damage that might occur by reason of said diversion of water (no diversion having been before spoken of except that caused by the flow of the water through the pipes laid in the streets), the provision that the defendant should have the right to divert "in said water pipes" all the water it should need to supply any useful demand it might have, and the words of the award that

the sum to be paid to the mill owners was for damages that had occurred or would thereafter occur to them "by reason of the diversion of the water of the stream crossed by said dam through the pipes of said water company for all purposes for which said water company can use said water," show sufficiently clearly that it was not the intention of the owners of the mill privilege below the dam to limit the water which the defendant might divert to the quantity which could be ponded or held back by the dam as it was originally constructed, even though it may then have been supposed by all parties to be sufficient for the present and future uses of the company. It cannot be claimed that the water to be diverted was intended to be limited to such quantity as would flow through the pipes which had been laid at the time of the award, as it is expressly provided in the submission that the defendant may divert the water by laying other pipes to the dam, and by extending and continuing existing pipes, in order to supply any useful demand. From the language of the submission and of the award, which was accepted and performed by all the parties, read in the light of the known purposes for which the water company was organized, and which it was endeavoring to carry out, it is apparent that the owners of the mill privilege agreed that the defendant should have the right to use all the water of the stream in question which it might need in order to furnish its customers with an abundant supply of water and ice for public and domestic use, and that in accepting the sum awarded them they received payment for all damage that might result to them from the necessary diversion by the defendant of the entire water of the stream. As the defendant has only diverted such water as was necessary for its lawful purposes, and as the manner of diverting it is a proper one, causing the plaintiff no injury beyond that for which he and his grantors have already received compensation, he was not entitled to damages upon the first count of the complaint.

below in the manner it was on the occasion in question.

Since judgment must be for the defendant upon the first count, it is unnecessary to consider the questions raised by the defendant's demurrer to that count.

The judgment upon the first count is erroneous, and is reversed. There is no error in the judgment upon the second count. The other judges concurred.

(75 Conn. 633)

UNMACK v. DOUGLASS.

SAME v. KILLAM CARRIAGE CO.
(Supreme Court of Errors of Connecticut. June
4, 1903.)

CONDITIONAL SALE-UNRECORDED CONTRACT
-BANKRUPTCY-TRANSFER BY BANKRUPT-
VALIDITY-REPLEVIN-ACTION BY RECEIVER
IN BANKRUPTCY-DAMAGES AND COSTS.

1. A contract providing for the delivery of personal property to one agreeing to pay a monthly rental therefor for a designated period, with the privilege of purchasing the same for a nominal sum after the date of the last payment, is a conditional sale, within Gen. St. 1902, §§ 4864, 4865, providing that contracts for the sale of personal property shall be in writing and recorded, and that conditional sales not made in conformity with the statute shall be considered absolute sales, except as between the vendor and vendee.

2. Under the express provisions of Bankr. Act 1898, § 67 (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449]), transfers of property made by a bankrupt within four months of the commencement of the bankruptcy proceedings, with intent to defraud his creditors, are void, "except as to purchasers in good faith and for a present fair consideration."

3. A transfer of property by a bankrupt a few weeks before the commencement of the bankruptcy proceedings against him, under an agreement whereby the transferee assumes and agrees to pay the balance of the purchase price of the property due from the bankrupt to his vendor, is as valid as though the amount thus assumed by the transferee had been paid by him to the bankrupt in cash, and by the latter paid over to his vendor.

4. A sale by a bankrupt a few weeks before bankruptcy proceedings is not rendered void merely because it is on credit.

5. Where judgment in an action of replevin brought by a receiver in bankruptcy with per

Upon the second count of the complaint the trial court awarded the plaintiff $5 damages for an injury sustained by him from the act of the defendant in discharging into the stream and mill pond below the dam, by means of a blow-off pipe at the bottom of the dam, foul and stagnant water which had accumulated in the bottom of the defendant's reservoir. This judgment does not appear to be erroneous. It may fairly be understood from the finding that the trial court held that, while it was necessary, in order to enable the defendant to furnish pure water to its customers, that the foul water which at times accumulated at the bottom of the dam should in some way, and at the times and in the quantities stated in the finding, be let off from the defendant's reservoir, yet it was not reasonably necessary that it should be discharged into the stream and mill pond | conveniently considered together.

mission of the federal court is rendered for defendant, damages and costs awarded against plaintiff as receiver are properly included therein, so as to render the sureties on the receiver's recognizance given in the action personally liable therefor.

Appeal from Court of Common Pleas, New Haven County; Julius C. Cable, Judge.

Actions of replevin by William H. Unmack, receiver in bankruptcy, against John W. Douglass, and by the same plaintiff against the Killam Carriage Company. From judgments for defendants, plaintiff appeals. Affirmed.

James M. Sullivan, for appellant. Charles S. Hamilton, for appellees.

BALDWIN, J. These two actions turn upon the same questions of law, and may be

Galwey, the bankrupt, was a livery stable keeper. A few weeks before the commencement of the bankruptcy proceedings, Douglass agreed to enter into partnership with him in his business, provided the former, after full investigation of its condition and prospects, became satisfied therewith; he meanwhile assisting in the business on wages of $2 a day, and allowing property of his own to be used in connection with it, for the resulting depreciation of which he was to receive $100 more, and the absolute title to which he was to retain. While working for Galwey under this agreement, Douglass bought of him, for $400, which was their fair market value, a hack and a pair of horses then in the possession of certain creditors having liens upon them. Of this $400, he paid $72 to discharge the liens, and the rest, later, to other creditors of Galwey, including $42 due to himself for his wages. On payment of the $72, Galwey gave him an absolute bill of sale of the hack and horses, reciting the receipt of a consideration of $400. At this time Galwey owed the defendant $12, only, for wages; but possession was delivered, and openly and continuously thereafter retained by the defendant. Three days before the bill of sale was given, Douglass had bought of Galwey his interest in three carriages under a so-called lease from the Henry Killam Company, dated in October, 1898. By this lease Galwey had agreed to pay a monthly rental of $60 for 21 months, and, should he do so, might buy the carriages for $1 within a week from the date of the last payment. Galwey had not made the full payments thus required, and owed the company $432 on that account. Douglass agreed, as the consideration of his purchase, to pay $100 of this sum to it, provided it would accept him as its debtor in place of Galwey for the balance. To this it consented, on receiving from him the $100, and thereupon Galwey gave him a bill of sale of his interest in the carriage for an expressed consideration of "one dollar and other valuable considerations," and he took them openly into his possession, keeping them till about the time of the bankruptcy, when they were turned over to the possession of the company. The fair cash market value of the carriages was $432, and, after his payment of $100, Douglass paid the company $80 more on account, to take up notes of Galwey which it held for that amount. Both these sales to Douglass were on his part made in good faith, without any purpose to defraud Galwey's creditors, and, so far as he knew, the same was true of Galwey; nor, when they were made, did Douglass know or believe, or have reasonable cause for knowing or believing, that Galwey was in failing circumstances, or. liable to become insolvent or bankrupt.

The paper under which Galwey derived his title from the Henry Killam Company was, in substance, a conditional sale, and, never having been acknowledged or recorded, was,

as to his creditors and the plaintiff, an absolute sale. Gen. St. 1902, §§ 4864, 4865; In re Wilcox & Howe Co., 70 Conn. 220, 39 Atl. 163.

The bankrupt act of 1898, § 67, Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], provides that all transfers of property made by a person thereafter adjudged a bankrupt, and within four months prior to the commencement of the bankruptcy proceedings, with the intent on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against them, and such property shall remain part of the assets of the estate, and pass as such to the trustee in bankruptcy, except as to purchasers in good faith, and for a present fair consideration. Transfers made within such period, which would be voidable by creditors under the laws of the state in which the property transferred is situated, are likewise voidable by the trustee in bankruptcy. The plaintiff, as a receiver in bankruptcy, had (section 2, Act July 1, 1898, c. 541, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420]), under the order of the district court, the right of action thus created for the recovery of assets so wrongfully transferred.

The facts found by the trial court show that neither of the transfers to Douglass was vòidable by creditors under the laws of this state. If Galwey had any fraudulent intent, it was not known to, nor participated in by, Douglass. Partelo v. Harris, 26 Conn. 480. Nor were either of them voidable for any cause specified in the bankrupt act, since Douglass purchased in good faith and for a full and valuable consideration. What was done and agreed between him, the Henry Killam Company, and the bankrupt, extinguished, by a novation, the latter's obligation to the company, and had the same effect, as respects the plaintiff, as if Galwey had received $432 from Douglass, and paid it over to the company. Nor is the fact material that the expressed consideration of the bill of sale of the hack and horses was the receipt of $400, although only $84, at most, had been in fact paid over at its date. The sum named was the true consideration. bankrupt has the right to sell on credit, as well as for cash, to a bona fide purchaser. That possession of the property sold was not retained by the bankrupt is settled by the finding.

A

It is contended that there is error in the judgments, because they award damages and costs against the plaintiff as a receiver in bankruptcy. He sought his remedy in a court of this state, and by actions in which it was necessary to give recognizances with surety for the return of the property replevied, and for damages and costs in case he should fail to establish his right to retain the possession gained under the writ. Into such a recognizance--a joint and several one-he entered, and he and his surety must abide by its terms. It constituted an obligation of re

ord, voluntarily assumed, which must necessarily have been contemplated by the district court when it gave him permission to bring these actions. It is unnecessary to inquire whether it binds the plaintiff personally. It certainly binds his surety personally, and in order to bind the surety it was necessary that the judgments in question should be rendered against his principal, and in the capacity in which he sued.

There is no error in either judgment. The other Judges concurred.

(75 Conn. 641)

BURKE v. WRIGHT et al. (Supreme Court of Errors of Connecticut. June 4, 1903.)

PLEADINGS-DEMURRER-AMENDMENT-WAIVER-APPEAL NECESSITY OF FINDINGS-PERFECTING APPEAL-TIME EXTENSION - DISMISSAL.

1. Where defendant filed an amended answer after a demurrer had been sustained to his original answer, error, if any, in sustaining of such demurrer, was waived.

2. Where, after the sustaining of a demurrer to defendant's amended answer, no further answer was filed, whereupon judgment was rendered for plaintiff, and defendants appealed, findings of fact were not required in order to review such demurrer on appeal.

3. Gen. St. 1902, § 791, provides that, if no finding of facts or further action of the judge be necessary to properly present the questions in the cause, the party appealing shall, within 10 days from the judgment, file an appeal in writing, unless the trial judge shall extend the time therefor. Held that, where no findings or other action of the judge were required to obtain a review of a ruling on demurrer, the fact that after judgment appellant's counsel filed proposed findings, which were retained by the judge until after the 10 days expired, when they were returned, without action, on the judge's statement that defendants would still have a week in which to perfect their appeal, did not constitute an extension of time so as to sustain an appeal subsequently perfected.

Appeal from Court of Common Pleas, New London County; Walter C. Noyes, Judge.

Action by John H. Burke against Alvin H. Wright and others. From a judgment in favor of plaintiff, defendants appeal. Plea to abate appeal sustained. Appeal dismissed. Seneca S. Thresher, John H. Barnes, and Roderick M. Douglass, for appellants. Frank T. Brown and Jeremiah J. Desmond, for appellee.

TORRANCE, C. J. The plaintiff in the court below brought an action against the defendants upon a written lease. To the answer filed in that action the plaintiff demurred, and the demurrer was sustained. The defendants then voluntarily filed an amended answer, to which the plaintiff demurred, and that demurrer was also sustained. No further answer was filed, and thereupon the court, on the 17th day of January, 1903, rendered judgment in favor of the plaintiff. On the 24th of January, 1903,

1. See Pleading, vol. 39, Cent. Dig. § 1402.

the defendants filed a notice of appeal from that judgment to this court. The appeal was filed and allowed on the 26th day of March, 1903, and the plea in abatement is based upon the claim that the appeal was not filed within the time allowed by law.

The statute (section 791, Gen. St. 1902) provides that, "if no finding of facts or further action of the judge be necessary to present properly the questions in the cause, the party appealing shall, within ten days from the rendition of the judgment," file with the clerk an appeal in writing, and give security for prosecution, as required by law. It further provides that the trial judge may, for cause shown, extend the time for filing and perfecting the appeal. The plea in abatement alleges, in substance: (1) That no finding of facts or further action of the trial judge was necessary to present properly the questions in said cause; (2) that no appeal in writing from said judgment to this court was filed within 10 days from the rendition of said judgment, nor was any such appeal filed except the one filed on the 26th day of March, 1903; and (3) that the trial judge did not extend the time for filing such appeal. The answer denied the first and third of the above allegations, and then set up the following facts, in substance: That, after final judgment was rendered, the defendants gave notice of appeal, and, believing that a finding of facts or further action of the judge was necessary to properly present the questions in the cause, they requested the judge in writing for such a finding, and lodged said request with the clerk, with a proposed finding; "that said judge held such request and proposed finding in his possession until March 20, 1903, when he returned the same to the clerk, and said to the defendants' counsel that he did not think any finding necessary, and the defendants then perfected their appeal, to wit, on March 26, 1903." To the facts thus set up in the answer the plaintiff demurred. Before the argument in this court, the parties, through their counsel, agreed in writing that when the proposed finding was returned to the clerk the judge said to counsel for the defendants, "You will now have one week in which to perfect your appeal." This was done to avoid sending the issue of fact raised by the answer to the plea in abatement (as to whether or not the time for filing the appeal had been extended by the judge) to be tried under the rule. By voluntarily filing an amended answer after the demurrer to the first answer was sustained, the defendants waived their right to except to the action of the court in sustaining the demurrer to the first answer (Mitchell v. Smith, 74 Conn. 125, 49 Atl. 909), and, if the demurrer to the amended answer was properly sustained, there was no error in the judgment rendered; so that the only question which, upon the record before us, the defendants could possibly raise upon appeal from that judgment,

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was whether the demurrer to the amended answer was properly sustained. Upon this state of facts it is clear that, after judgment rendered, no finding of facts or further action of the judge was necessary to properly present that single question before this court. Clearly, then, an appeal in this case could be taken only within 10 days from the date of judgment, or within some extension of that time allowed by the judge. As the appeal was not taken within 10 days from the date of judgment, the question is whether it was taken within an extension of that period allowed by the judge, and the answer to that question depends upon the answer to the controlling question whether the judge made or allowed any such extension. No order for any such extension appears of record anywhere, but the defendants contend that what the judge did and what the judge said, as admitted by the pleadings and stipulation of counsel, constituted in legal effect an extension of the time for filing an appeal. In cases like the one between these parties in the court below the statute says that the judge "may, for due cause shown, extend the time" for filing an appeal. This implies that the judge, before he extends the statutory period for appeal, shall find, upon hearing after notice, if necessary, that due cause exists for making such extension; and that the order extending or refusing to extend the time shall be communicated to the clerk, and be minuted by him in writing upon the files or records of the case. This certainly is the safe and orderly method of procedure in such cases. Orders of this kind ought not to be left in the air, nor committed solely to the custody of "slippery memory." Whether in all cases of this kind, evidence of the making or existence of such an order should be confined exclusively to the written memorial thereof, it is not necessary here to decide; for upon the admitted facts and evidence in this case we think it ought not to be held that the judge did extend the time for filing the appeal. The fact that the judge took the proposed finding, and kept it till March 20, 1903, cannot of itself be regarded as, in legal effect, an extension of the time for filing an appeal. The request for a finding and the proposed finding were both absolutely unnecessary to the defendants' right to appeal, and court and counsel must, upon the record, be charged with knowledge of that fact. They both knew that what the judge did or might do with these unnecessary papers could not in any way affect the defendants' right to appeal, and that the judge was under no duty to act upon the proposed. finding, or to inform counsel for the defendants that the proposed finding or further action of the court was necessary or unnecessary to their right of appeal.

It is, however, strongly insisted that what the judge said to counsel for the defendants after he handed the papers back to the clerk

on the 20th of March, 1903, was, in legal effect, an extension of time for filing the appeal. Assuming, without deciding, (1) that the judge could then exercise the power to extend the time, and (2) that the evidence agreed to is admissible upon the question as to whether he did then exercise it, we think that such evidence fails to show that he extended or intended to extend the time for filing an appeal. It does not appear that due cause existed for such extension. Indeed, the record shows that no such cause existed. What the judge said does not appear to have been communicated to the clerk or to the opposing counsel, nor does it appear that the judge intended that it should be communicated; and no entry of what he so said was made anywhere by anybody. The words attributed to the judge, read in the light of the circumstances under which they were uttered, appear to be nothing more than an expression of opinion that by law the defendants had still one week left in which to take an appeal; but, whatever other construction may be given to them, we think it would be very unreasonable to hold that by them the judge extended or intended to extend the time for filing the appeal.

The plea in abatement is sustained, and the appeal is dismissed. The other judges concurred.

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1. Evidence in action against a street railway to recover damages for a collision at a street crossing with plaintiff's horse and wagon examined, and held to justify the court in directing a verdict for defendant.

2. The failure to look for an approaching street car is negligence per se, and the duty is not performed by looking when first entering on a street, but continues until the track is reached.

Appeal from Court of Common Pleas, Philadelphia County.

Action by William C. Moser against the Union Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Edward A. Anderson and John H. Fow, for appellant. Thomas Leaming and Charles Biddle, for appellee.

POTTER, J. Upon the trial of this case it appeared that the plaintiff did not look for an approaching car at the moment when he was about to cross the track, nor did he see that the car which struck him was near until after the collision occurred. For this reason, at the close of the plaintiff's testimony the learned trial judge entered a judgment of compulsory nonsuit. He was entirely justified in so doing. The plaintiff testified that

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