The first assignment is sustained, and the cussion of the details of the controversy bejudgment reversed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No, Series & Rep'r indexes

(85 Conn. 429)

LANDER v. PERSKY et al. (Supreme Court of Errors of Connecticut.

May 16, 1912.)

mortgage on certain premises, and also agreed to loan him $6,000, payable in 11 payments at different stages of construction of a building by Danzig on said premises.

Each

1. MORTGAGES (§ 497*)-FORECLOSURES-EF- and took a note for said $6,000, secured by FECT OF DECREE. second mortgage on said premises. P. and A., taking note and mortgage therefor, agreed to loan D. $6,000, payable to him payment was conditioned upon Danzig furin installments; each payment being condition-nishing Persky a waiver of lien, signed by ed on D. being furnished a waiver by contrac- all the contractors engaged on the building tors of mechanics' liens. Waiver was not fur- and by the materialmen who furnished the nished, and the last payment of $800 was not material for the construction of the building. paid or demanded; but D. gave to L. an assignment of $600, payable therefrom, of which P. and A. were notified. For nonpayment of interest, P. and A. brought action of foreclosure; and L., claiming an interest in the premises, procured himself to be made a party plaintiff. Held that, L. having no interest in the property or in the loan, the assignment never having become effective, and so not being a necessary or proper party plaintiff, the foreclosure decree, finding the interest due at an amount which included the interest on said $800, and ordering, in default of redemption, that possession of the premises be delivered to P. S. and L., could vest in L. no interest in the premises.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 8 1469-1471, 1473; Dec. Dig. § 497.*]

2. MORTGAGES (§ 497*) - FORECLOSURE-EF

FECT.

Danzig proceeded with the erection of the building, and Persky and Asher paid to him all of the $6,000 loan, except the last payment of $800. Danzig never furnished said waiver, nor demanded payment of said $800.

While the building was uncompleted, there being then no mechanics' liens on said building, Danzig, on June 8, 1910, borrowed of Lander, the plaintiff, $600 for use in finishing the building, and gave the plaintiff an assignment of $600, payable out of said final payment of $800, notice of which was duly given the defendants. After June 8, 1910, mechanics' liens were filed against said premises and remained thereon, when, on September 21, 1910, Persky and Asher brought an action of foreclosure of said mortgages against Danzig for nonpayment of interest due.

Where a mortgage was given to secure a loan, payable to the mortgagor in installments, and the last installment of $800 was not paid to him, the condition on which it was payable, the furnishing of waivers of mechanics' liens, The plaintiff, claiming an interest in said not being complied with, the inclusion of in- mortgaged premises by virtue of his assignterest on said $800 in the foreclosure judgment, procured himself to be made a party ment, while subject for complaint, was not a waiver of the condition on which the $800 was payable, or an unconditional acceptance by the mortgagee of the mortgagor's assignment to a third person of part of the $800.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1469-1471, 1473; Dec. Dig. 8 497.*]

3. TRUSTS (§ 72*)-RESULTING TRUST.

That there may be a resulting trust in favor of one from the acquisition of title to property by others, part of the consideration by which they secured title must have come from him.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 102, 103; Dec. Dig. § 72.*] 4. EVIDENCE (§ 114*)-RELEVANCY AND MA

TERIALITY.

It has no tendency to prove validity of plaintiff's claim against defendants that a third person, as part consideration of defendants' transfer of property, agreed to pay the claim,

if it should be established.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 125-132; Dec. Dig. § 114.*]

plaintiff in the foreclosure action. A decree therein was entered, finding the amount of interest due $528, being the interest to date on the entire loans, including the final payment of $800 never made, and limiting the time for redemption of the several defendants, and ordering possession delivered to the said mortgagees, Persky and Asher, and the present plaintiff.

None of the defendants redeemed, and immediately Persky and Asher filed a certificate of foreclosure of title to said property in the town clerk's office of New Haven, under General Statutes, § 4125, and on said day conveyed the same to Cohen, one of the defendants in the foreclosure proceedings, and received in consideration a note, secured by mortgage, on said premises, being for the face of the judgment and costs and interest thereon from its date.

The plaintiff seeks in this action to recovAppeal from Court of Common Pleas, Newer the $600 advanced by him to Danzig, toHaven County; Simpson, Judge.

Action by Abraham Lander against Simon Persky and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Ward Church, of New Haven, for appellant. Benjamin Slade, of New Haven, for appellees.

WHEELER, J. [1] The defendants Persky and Asher, on December 22, 1909, loaned one Danzig $2,800 on note, secured by first

gether with interest thereon. In his brief. he thus states his claim: "When Persky and Asher caused judgment to be entered for interest on the full face of the loans, they thereby adopted and made a part of their own claim the $600 advanced by Lander, and the interest thereon. When they recorded a certificate of foreclosure in their names as full owners, and gave a deed in the same way, they thereby caused to exist a resulting trust in Lander's favor."

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 83 A.-14

་

Where in a suit to quiet title a receiver was appointed to conserve the income of the property pendente lite, the superior court after having determined the title had jurisdiction to distribute the funds in the hands of the receivsons entitled thereto, and therefore was er, and for that purpose to ascertain the perthorized to decree that a widow had a dower interest in one of the shares of the property and to award to her, though such dower was unassigned, her distributive share of such in

come.

au

Upon what legal theory Lander was made | 2. QUIETING TITLE ( 50*)-RECEIVERS-INa party plaintiff in the foreclosure action COME-DISTRIBUTION. brought by Persky and Asher against Danzig, we are unable to conceive. Lander had no interest in the property as lienor or otherwise, and no interest, legal or equitable, in these loans. The assignment to him of $600 of the amount due under the last payment never became effective, since its payment was contingent upon the securing of waivers of the mechanics' liens, and these were never obtained. The judgment of foreclosure found $528 due the plaintiff on the debts named in the complaint, and these were debts in which Lander had no interest. It necessarily follows that Lander took absolutely nothing by the judgment of foreclosure. He was neither a necessary nor a proper party plaintiff. The decree of the court could not vest in him an interest in these premises, any more than it could in any other stranger to the premises.

[2] The inclusion of the interest due on the last payment in the foreclosure judgment was a matter of which the defendants therein might complain, but which in no way concerned Lander. It was not a waiver of the condition upon which the last payment was to become due, nor was it an unconditional acceptance of the $600 assignment.

[3] Since Lander had no interest in the loans, there was no foundation upon which to rest a claim of a resulting trust in his favor in the property foreclosed. No part of the consideration by which Persky and Asher secured title to the property came from Lander, and this would be a prerequisite to a resulting trust in his favor. Ward v. Ward, 59 Conn. 195, 22 Atl. 149.

[4] The plaintiff called the defendant Asher as a witness, and he, having testified as to the consideration of the transfer to Cohen, was asked if Cohen, as a further consideration, agreed that if Lander's claim was established he would pay it and save Persky and Asher harmless. This question was properly excluded. It was immaterial to the issue; it did not tend to establish the defendants' legal liability to the plaintiff.

There is no error. The other Judges con

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 100; Dec. Dig. § 50.*] 3. DowER (§ 55*)-NATURE OF ESTATE-VESTING ASSIGNMENT.

A widow's dower vests immediately on the death of her husband, without assignment or setting out, and remains unchanged except as an assignment or her own act may operate to do so.

Cent. Dig. § 176; Dec. Dig. § 55.*]
[Ed. Note.-For other cases, see Dower,

4. INTERPLEADER (§ 4*)-SCOPE OF REMEDY-
FUNDS IN THE HANDS OF RECEIVER.

Where in a suit to quiet title the court appointed a receiver who took charge of the rents and profits pendente lite, it was proper for the court after determining the title to order the parties interested in the fund so collected to file statements of claim as in an interpleader.

[Ed. Note.-For other cases, see Interpleader, Cent. Dig. § 5; Dec. Dig. § 4.*]

Appeal from Superior Court, New Haven County; Howard J. Curtis, Judge.

Action by Marie E. Ives Humphrey and others against George L. Gerard and others. From that portion of a judgment of the superior court distributing certain moneys in the hands of a receiver collected as the income of the property pending the action, Gerard appeals. Affirmed.

Charles S. Hamilton and Robert C. Stod

dard, for appellant. Harrison T. Sheldon, for appellee Emmons.

PRENTICE, J. This litigation has been before us in some of its aspects upon several former occasions, the last as reported in 84 Conn. 216, 79 Atl. 57. The action was brought to quiet and settle the title to certain real estate. Pending it the court appointed a receiver to collect the income from the property. All the issues involving the title have been finally determined. The present appeal grows out of the order of the court contained in the final judgment, which divides and distributes the net income in the hands of the receiver. There is no dispute as to the disposition made of seven-eighths of this amount, or as to that of two-thirds of the remaining one-eighth. The sole contention arises from the claim of Frankie S. Garfield Emmons, as the widow of James H. Garfield, to one-third of one-eighth, while the defendant Gerard claims that he is entitled to this portion as the adjudged fee owner during the period of litigation through a deed from one of the two children of

James H. Garfield of the one-eighth interest | ignored in the present proceeding, is wholly in the property, in which interest Mrs. Em- without foundation. Equally so is the claim mons claims her disputed dower right. that the court could not ascertain the There is no question as to Gerard's full ti- amount to be paid to Mrs. Emmons until tle to the one undivided one-eighth property her dower had been assigned. interest about which the controversy centers, or to the correctness of his claim to the entire income appropriate to that one-eighth except such as arises from the widow's claim of dower. The controversy thus becomes resolved into one as to the validity of the latter claim.

Upon this question there is left no room for doubt upon the facts found. It is found that all the conditions existed which were necessary to entitle Mrs. Emmons, upon the decease of her husband, to dower in all the real estate in this state of which he died possessed, and that her dower has never been assigned or set out pursuant to our statute.

[1] Under the well-established principles of our law, she was therefore, during the period when the income in question was collected, a tenant in common to the extent of her dower interest, with the heirs of her husband, their grantees, and the other owners of the property, and as such entitled to possession and to her proper share of its income in like manner as her cotenants. Calder v. Bull, 2 Root, 50, 52; Stedman v. Fortune, 5 Conn. 462, 465; Wooster v. Hunts Lyman Iron Co., 38 Conn. 256, 257; 1 Swift's Digest, s. p. 85. The court so held, and correctly awarded to her such share and no

more.

[3] Mrs. Emmons, as a widow entitled to dower immediately upon her husband's death, became endowed for her life with one-third part of all the real estate of which her husband died possessed. We have already had occasion to observe that under our law she, as such doweress, became a tenant in common with the other heirs of her husband in all of his real estate. This estate vested in her immediately. It did not await upon an assignment or setting out. It was complete and perfect from the moment of the husband's death, and would remain unchanged except as an assignment or her own act might operate to do so. 1 Swift's Digest, s. p. 85; Stedman v. Fortune, 5 Conn. 462; Wooster v. Hunts Lyman Iron Co., 38 Conn. 256, 258; Greathead's Appeal, 42 Conn. 374, 375; Humphrey v. Gerard, 84 Conn. 216, 221, 79 Atl. 57. When, therefore, the court ascertained that Mrs. Emmons had the estate of a dowress with dower unassigned, it had all the information requisite to establish her right to share in the income of the property of which she was a tenant in common, and it was not necessary to create in her any new right or estate or to give to her any new status whatsoever.

[4] Complaint is made of the procedure adopted by the court for the determination of the rights of the parties in respect to the distribution in that they were ordered to file statements of claim as in an interpleader. There can be no legal objection to the course pursued if the court deemed it wise to direct it. It was entitled to get at the pertinent facts, and the method adopted was one to which it could resort in the proper exèrcise of its discretion. No hard and fast rule prescribed any precise mode of procedure, or forbade the one chosen.

There is no error. The other Judges concurred.

[2] The appellant's objections to the action of the court appear to rest upon the theory that the award to Mrs. Emmons involved an assignment of dower to her a proceeding which is not within the province of the superior court. Such was by no means the case. The court had funds in its hands for distribution to those rightfully entitled to them. It was competent for it to inquire who these persons were, and the share belonging to each of them. That inquiry necessarily involved one as to the owners of the property which had produced the income during the period of its production, and their several interests in it. Such inquiry the court made as a preliminary to its distribution of the funds, and it did nothing more touching the title to the property. so doing it was simply seeking to learn the state of the title as it was during the operations of the receiver as furnishing the necessary basis for its order of distribution. It neither undertook to create a new interest nor to change or make permanent an existing one. The contention that it either directly attempted to do or in effect did what we said in our former opinion (84 Conn. 216, 221, 79 Atl. 57) the superior court is incompetent to do, to wit, to assign dower, and that the advice of this court in that case was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

In

ATWOOD v. CONNECTICUT CO.
(Supreme Court of Errors of Connecticut.
May 16, 1912.)

NEGLIGENCE (§ 136*)—ACTION-DIRECTION OF
VERDICT-WHEN AUTHORIZED.
plaintiff's negligence contributed
Where the evidence so clearly showed that
to produce
the injuries complained of that the jury could
not reasonably find otherwise, the court was
justified in directing a verdict for defendant.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

Appeal from Superior Court, New Haven County; Marcus H. Holcomb, Judge.

Action by Paul Atwood against the Connecticut Company to recover damages for

personal injuries, alleged to have been sus- [ 5. MASTER AND SERVANT (8 40*)-ACTION FOR tained through defendant's negligence. WRONGFUL DISCHARGE OTHER EMPLOYMENT. There was a judgment for defendant, rendered on a directed verdict, and plaintiff appeals. Affirmed.

Ulysses G. Church, of Waterbury, for appellant. Joseph F. Berry, of New Haven, for appellee.

PER CURIAM. The evidence so clearly indicates that the plaintiff's negligence coutributed to produce his injuries that the jury could not reasonably have found otherwise. The court was therefore justified in directing a verdict for the defendant.

This conclusion renders the rulings upon the admission of testimony complained of entirely unimportant.

There is no error.

(85 Conn. 421)

GRANT v. NEW DEPARTURE MFG. CO. (Supreme Court of Errors of Connecticut.

May 16, 1912.)

An employé discharged before the expiration of the time for which he was employed is prima facie entitled to the balance of the stipulated salary, and is not bound to show that he could not or did not obtain other employment; the burden being on the defendant to show that he did or could.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 47-49; Dec. Dig. 40.*]

6. APPEAL AND ERROR (1071*)-HARMLESS ERROR-FINDINGS.

In an action by an employé for wrongful discharge, the burden being on defendant to show in mitigation of damages that plaintiff did or could have obtained other employment, a finding that defendant was not able to obtain other employment, though not supported by any evidence offered by either party, was harmless error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239: Dec. Dig. 1071.*]

Wheeler, J., dissenting in part.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Action by Robert H. Grant against the New Departure Manufacturing Company.

1. FRAUDS, STATUTE OF (§ 118*)—SUFFICIEN- From a judgment for plaintiff, defendant CY OF WRITING.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 199, 262-265; Dec. Dig. § 118.*]

2. Frauds, STATUTE OF (§ 53*)-AGREEMENTS NOT TO BE PERFORMED WITHIN ONE YEAR. An oral agreement of employment for one year commencing February 1st, made before that date, would be void under the statute of frauds.

appeals, alleging errors in rulings and findPlaintiff wrote defendant accepting an of-ings of the court. Affirmed. fer by defendant to take charge of a department of its business "for $2,500 per annum The defendant, desiring a superintendent for the first year," and asked that a contract for its ball-bearing department, made the for the first year be sent. Defendant, in reply, expressed satisfaction at his acceptance, plaintiff a proposition to serve it in that castated that the salary for the first year would pacity. The plaintiff asked time to consider be $2,500, and that no one in its employ had a the proposition, and a few days later, on contract, and they thought it better not to depart from this custom. Held, that the letters January 25th, wrote them a letter which constituted a sufficient memorandum to satisfy read: "I have carefully considered your the statute of frauds. proposition to take charge of your ball department and any other branch of the business you may see fit to give me, for $2,500 per annum for the first year and advances as fast as the departments show that they are profitable to the company. If you will kindly send me a contract for the first year as above, I will be with you on the first of the month ready to start in and give you the benefit of my knowledge in the lines menTo this the defendant on January 27th replied as follows: "Yours of the 25th instant to hand and we are pleased to note that you will be with us on the 1st of February, upon the terms and under conditions as gone into verbally when you were here last. The salary for the first year will be $2,500. The more valuable you make yourself to us, the better it will please us, and your salary will be governed accordingly. Regarding contracts, would say that Where the court properly held that there there isn't a person in our employ, including was a sufficient written memorandum of a contract for one year's employment to satisfy the the three officers, who has a contract of any statute of frauds, a finding, unsupported by kind with this company, and in taking this the evidence, that the oral agreement made be-up with our Mr. Rockwell he stated that he fore the employment commenced was orally thought inasmuch as this had not been the renewed the day it commenced, was harmless. [Ed. Note.-For other cases, see Appeal and custom heretofore, we had better not depart Error, Cent. Dig. 88 4234-4239; Dec. Dig. from what has been an old-established rule. 1071.*] At the same time you need not anticipate

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 69, 80, 92; Dec. Dig. § 53.*]

3. EVIDENCE ( 458*)—Parol-TO EXPLAIN

WRITING.

Oral negotiations between parties before letters constituting a contract were written are competent to show the circumstances under which they were written as an aid to their interpretation.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2083; Dec. Dig. § 458.*] 4. APPEAL AND ERROR (§ 1071*)-REVIEW

HARMLESS ERROR.

tioned above."