(94 Conn. 161) GENERAL SUPPLY CO. v. FOURNIER. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.) potash of the same formula and quality as the earlier lot referred to. No representations of any character were made by the defendant as to the second lot other than that the substance was of the same formula 1. SALES 417-EVIDENCE SHOWING PER- as that supplied on the earlier occasion. FORMANCE BY SELLER OF CONTRACT. The evidence and rulings in the case have In suit for failure to deliver caustic potash been certified for review in considering the sold, the claim being that caustic soda was de- claimed errors of the court in finding cerlivered instead, evidence held to warrant find-tain facts and refusing to find others. Of ings that the subject of a first sale and delivery the remaining assignments of error, one is was caustic potash, that defendant seller made no representations whatever as to the per cent. based upon the rejection of certain testimony of potash therein, and that he subsequently de- offered to establish a disputed element of livered a second load of the same material in damage, and the rest are substantially alperformance of an order for potash of the same ternative statements, with modifications, of formula as the load previously bought. the claim that the court was wrong in hold2. SALES 73-PERFORMANCE OF ing that the material actually supplied by CONTRACT BY DELIVERY OF LIKE GOODS As the defendant on the second order satisfied the terms of the contract of sale. DELIVERED UNDER FIRST CONTRACT. SECOND Where caustic potash "bought to sample" was sold and delivered, and the buyer ordered a second load of the same formula and quality, the order measured the seller's obligation, and delivery of such potash as was delivered in the first load was a performance of his contract. Appeal from Superior Court, New London County; Joel H. Reed, Judge. Action by the General Supply Company against Leo A. Fournier. From judgment for defendant, plaintiff appeals. No error. The amended complaint on which the parties went to trial alleged, in substance, a contract of sale by the defendant to the plaintiff in April, 1916, of a quantity of caustic potash at a stated price, which was paid; the delivery in claimed fulfillment thereof by the defendant of a like quantity of caustic soda, a commodity of much less value than that bargained for; seasonable notice to the defendant that the material so delivered was held subject to his order, and a demand for the return of the purchase price. Damages were claimed for losses incurred by reason of the goods not being as represented by the defendant. A In addition to a general denial, there was an affirmative defense, the important averments of which appear in the finding, and judgment was rendered for the defendant upon the following facts: On March 9, 1916, Fournier, the defendant, sold and delivered to the plaintiff a certain quantity of granulated caustic potash, without representations of any character as to the percentage of potash actually contained in the lot sold. few weeks later, April 1, 1916, the plaintiff ordered 1,500 pounds of caustic potash from the defendant, to be "guaranteed same formula as lot previously bought," this term referring to the granulated caustic potash previously bought by the plaintiff on March 9, 1916. The defendant filled this second order by delivering to the plaintiff on April 18, 1916, 1,500 pounds of granulated caustic Arthur T. Keefe, of New London, for appellant. Daniel M. Cronin, of New London, for appellee. CASE, J. (after stating the facts as above). The plaintiff urges that it is entitled either to damages for the defendant's failure to deliver what was actually bought, or, as an alternative to this relief, to be restored to its original position by a return of the purchase price on the ground that, the parties never having reached a common understanding in the matter, no contract resulted from their undertaking. There might be difficulty in adjusting this alternative attitude of the plaintiff to the position which it has voluntarily assumed upon the pleadings, but that matter becomes unimportant. Neither of the plaintiff's claims is tenable upon the finding as it stands, and the controlling question is whether the trial court has so unwarrantably found, or refused to find, any facts materially involved in a determination of the case as to demand our correction of its action. In a more vital measure than is perhaps at first apparent, the whole theory of the plaintiff's case depends upon the circumstances attending the earlier of the two transactions, that of March 9, 1916. The parties were hopelessly apart in the trial court as to what Fournier then sold or assumed to sell, and whether or not he made representations as to its nature or quality. These were questions of fact that in certain obvious aspects of the case were substantially decisive of it. The plaintiff, whose identity for every practical purpose of ours is merged in that of Mr. Pilling, its president, contended, not only that caustic potash of the purest grade was the mutually accepted subject of this first dealing, but that Fournier represented what he had for sale as of that specific standard, and "ninety-two per cent. pure." If the plaintiff had established that foundation, its (108 A.) case, which was manifestly planned to rest With such testimony in the case there can upon it, would have been a radically differ- be no question, of course, that the findings ent one from that which the record presents. complained of were amply warranted, and The step from that to a conclusion that our limited function upon appeals of this Fournier had not delivered in fulfillment of character has been too often defined to jushis second sale material of a quality which tify a restatement of it here. Hourigan v. he had represented that of the first to be Norwich, 77 Conn. 358, 368-370, 59 Atl. 487. would have been inevitable on the conceded We must take the record, therefore, as we facts. That, in turn, would have fairly left find it, and upon it the plaintiff is barred open for determination the precise applica- here from questioning, either directly or intion of the stipulated condition of the second directly, the conclusiveness of the first sale that the substance delivered be "guar- transaction. With that door closed, the one' anteed same formula as lot previously remaining question is whether the substance bought"-and might have afforded fair room delivered in fulfillment of the second order for argument as to whether the "lot previous- was of the same formula and quality as that ly bought" was the lot actually bargained for which Fournier delivered on the first ocor the lot actually delivered; material of the casion. If so, this measured Fournier's obpurity represented by Fournier, or mate- ligation under the stipulated condition of the rial of the inferior quality delivered by Four- plaintiff's second order. The trial court has nier. so found, and the evidence too plainly justifies the finding to call for any statement of it. But no such inquiry arises or is permitted here. The trial court's conclusion is without qualification adverse to this contention of the plaintiff, and the superstructure of its case disappears with its faulty foundation. It is definitely found, both that the subject of the first sale and delivery was granulated caustic potash, and that Fournier made no representations whatever as to the percentage of potash which this substance contained. Clearly so long as that finding remains unmodified, the plaintiff is without standing to question here, either the conclusiveness of its acceptance of the first lot of material delivered, or that the second delivery was a full compliance wih the conditions of the contract, if the court was justified in its further finding that all the material delivered on both occasions was of one formula and quality. ENTITLED TO COMMISSION WHEN PROCURING PURCHASER READY, ABLE, AND WILLING TO BUY.' A broker in whose hands real estate has been placed for sale by its owner is entitled to his commission, agreed upon or customary, when his efforts have resulted in a sale or in procuring a customer who is ready, able, and willing to buy upon the terms prescribed by the owner. 2. NEW TRIAL 70 — VERDICT FOR BROKER SUING FOR COMMISSION PROPERLY SET ASIDE [1, 2] The appeal attacks the finding in the respects indicated as not warranted by the evidence, but the record fails to bear out this claim. Fournier's testimony, corroborated by that of two other witnesses, was in rated by that of two other witnesses, was in effect that he expressly disclaimed to Pilling, upon the latter's first visit of inquiry and negotiation on the plaintiff's behalf, all knowledge of the chemical composition of the substance the plaintiff was seeking to buy, and fairly warned Pilling that though he (Fournier) had bought the stuff for caustic potash, he knew nothing whatever as to the percentage of potash which it contained; that he submitted the material to Pilling's inspection, so that the latter might satisfy himself whether it was what the plaintiff wanted, and that upon his suggestion Pilling took away a sample of it, delaying his determination to buy until some days later. Action by Miles Commander against John It may also be observed that Pilling himself, J. Lawler to recover a commission for servas a witness, corroborated a detached but ices rendered as a real estate broker at the significant element of the defendant's general alleged request of the defendant. The jury contention in his reiterated statement that returned a verdict for the plaintiff for $560, the so-called first lot "was bought to sample." which the trial court upon motion set aside as Where plaintiff broker offered no evidence justifying jury finding of an express or implied employment to effect a sale or of the execution of the terms of employment to the extent of procuring a customer ready, able, and willing to buy upon the terms prescribed by the owner, verdict for plaintiff was properly set aside. Appeal from Superior Court, Hartford County; William S. Case, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes against the evidence, and from this decision | of similar age, judgment, and experience under the plaintiff appealed. No error. similar circumstances. William H. Fogerty, of Hartford, for appel- 3. MUNICIPAL CORPORATIONS 706(7)—CONlant. Nathan A. Schatz and Louis M. Schatz, both of Hartford, for appellee. TRIBUTORY NEGLIGENCE OF SEVEN YEAR OLD Contributory negligence of seven year old 4. MUNICIPAL CORPORATIONS 705(10)-Doc TRINE OF LAST CLEAR CHANCE INAPPLICABLE The doctrine of last clear chance held to have no application to case of seven year old boy killed in crossing the street by automobile under the evidence. PRENTICE, C. J. [1] It is well settled that a broker in whose hands real estate has been placed for sale by its owner is entitled to his commission, agreed upon or customary, when his efforts have resulted in a sale or in procuring a customer who is ready, able, and willing to buy upon the terms prescribed by the owner. Home Banking & Realty Co. v. Baun, 85 Conn. 383, 386, 82 Atl. 970. His right to the commission is dependent upon 5. APPEAL AND ERROR 1064(2)-INSTRUCthe concurrence of two conditions, to wit: (1) The creation either expressly or impliedly of an agency employment to effect a sale; and (2) the execution of the terms of the employment to the extent of procuring a customer ready, able, and willing to buy upon the terms prescribed by the owner. TION TREATING FACT AS ESTABLISHED NOT Even if instruction could be properly construed as telling jury that uncontradicted evimobile lamps were lighted, it was not harmful where the evidence was such that any other conclusion than that lamps were lighted would have been wholly unwarranted. dence of both sides showed defendant's auto 6. MUNICIPAL CORPORATIONS 706(8)-IN STRUCTIONS ON RULES FOR AUTOMOBILE TRAF- [2] In the present case the plaintiff failed to offer proof reasonably justifying the jury in finding that either one of these conditions had been complied with. His own evidence carefully avoided the statement that the defendant put the property in question into his hands for sale or employed him to effect a sale of it, and evidence of that important fact, vehemently denied by the defendant, is not elsewhere supplied. That the defendant ever agreed to sell upon terms acceptable to the customer whom the plaintiff claims to have procured nowhere appears by competent evidence. The trial court was only perform-7. TRIAL 252(1)—INSTRUCTIONS SHOULD BE ing its plain duty when it set aside the verdict. There is no error. The other Judges concurred. (94 Conn. 196) KISHALASKI v. SULLIVAN. while crossing street, failure to charge on statIn action for death of boy hit by automobile utory rules of care to be observed by automobile operators was not error, such rules being inapplicable to the issues, as was recognized by plaintiff's counsel, who made no request for such instructions. CONFINED TO FACTS IN EVIDENCE. Instructions should be confined to the issues upon the facts as they may be reasonably found from the evidence. Appeal from District Court of Waterbury; Frederick M. Peasley, Judge. Action by Leo Kishalaski, administrator, against John T. Sullivan for death of intestate. Verdict and judgment for defend (Supreme Court of Errors of Connecticut. Dec. ant, and plaintiff appeals. Affirmed. 22, 1919.) 1. MUNICIPAL CORPORATIONS mm 706(5) FINDING THAT CHAUFFEUR WAS NOT NEGLIGENT SUFFICIENTLY SUPPORTED BY EVIDENCE. In view of evidence from which jury might believe that seven year old boy ran across street directly in front of defendant's car, verdict acquitting defendant's chauffeur of negligence in not seeing boy in time is not so unreasonable as to require that it be set aside. Action to recover damages for personal injuries resulting in the death of the plaintiff's intestate and alleged to have been caused by the negligence of the defendant's chauffeur in the operation of his automobile brought to the district court of Waterbury and tried to the jury. Verdict and judgment for the defendant, and appeal by the plaintiff. No error. The plaintiff's intestate, a boy seven years 2. NEGLIGENCE 85(2)-CONTRIBUTORY NEG- of age and of average intelligence, size, and LIGENCE OF CHILD DEFINED. Contributory negligence on the part of a boy seven years old is failure to exercise such care as may be reasonably expected of children physical development for his years, received fatal injuries by being struck by the defendant's automobile operated in his business by his chauffeur along a public highway in Nau (108 A.) gatuck. Other facts pertinent to the opin- [ "such care as may reasonably be expected of ion are sufficiently stated in it. Clayton L. Klein and John F. McDonough, both of Waterbury, for appellant. Edward B. Reiley, of Waterbury, for appellee. PRENTICE, C. J. (after stating the facts as above). [1] The plaintiff's first complaint is of the refusal of the court, to grant his motion to set aside the verdict as being against the evidence and to grant a new trial. The evidence was not widely contradictory. That presented on behalf of the plaintiff and on the defendant's behalf alike clearly established that the defendant's chauffeur was proceeding along on his right hand or the northerly side of a street unobstructed by other vehicles, at a very moderate speed, and with the lights of his car lighted. In all these regards he was traveling as the law directs and as reasonable prudence would dictate. If the injuries to the plaintiff's intestate, a boy of seven years of age, were in any respect chargeable to the chauffeur's negligence, it must have been to negligence arising from a want of care on his part in not seeing as soon as he reasonably ought the boy as he crossed the street in a direction which led him to pass in front of the automobile, or else in not turning or stopping the automobile as an ordinarily careful man would do under like circumstances. The chauffeur testified that he did not see the boy until after he was hit, and there is neither evidence nor claim to the contrary. Whatever negligence the chauffeur was guilty of must therefore have consisted in his failure to see the boy, as he reasonably ought, as he came into a position of danger or threatened danger, and this is the essence of the plaintiff's claim. There was evidence touching this point which the jury well might and quite likely did believe that the boy who had been walking with companions on the southerly sidewalk, suddenly left them and ran across the street and directly in front of the defendant's car. Under such circumstances we cannot say that the jury's conclusion that the chauffeur was not negligent in failing to see the boy in time to avoid hitting him was so unreasonable that its verdict should be set aside. [2, 3] If, on the other hand, the conclusion upon which it founded its verdict was that the deceased was guilty of contributory negligence, the result is the same. Had the boy been an adult in the possession of his senses, there can be no doubt that his negligence was a proximate cause of the injuries he received. His conduct is not, however, to be judged by the same standard as that applied to a man's. But being as he was, of average intelligence and ordinary physical development, he was not incapable of negligence; that is to say, of a failure to exercise children of similar age, judgment, and experience, under similar circumstances." Rohloff v. Fair Haven & W. Ry. Co., 76 Conn. 689, 693, 58 Atl. 5, 7. The question of the boy's negligence, in view of all the pertinent considerations of age, maturity, intelligence, experience, and so forth, was one for the jury, and its finding must be final in so far as the facts involved in the present case are concerned. To hold otherwise would be to supersede its conclusion of fact by a conclusion of law contrary to accepted principles. Rohloff v. Fair Haven & W. Ry. Co., 76 Conn. 689, 691, 58 Atl. 5; Murphy v. Derby St. Ry. Co., 73 Conn. 249, 47 Atl. 120; Nolan v. Railroad Co., 53 Conn. 469, 478, 4 Atl. 106. [4] Plaintiff's counsel in their brief make an appeal to the doctrine of the last clear chance. Conditions justifying the application of that doctrine do not by reasonable possibility arise upon the evidence. [5] The charge of error contained in the second reason of appeal is in substance that the court erred in instructing the jury in effect, as claimed, that the undisputed evidence of both sides that the lights of the automobile were lighted at the time of the accident removes that subject from the domain of controversy and forbade a conclusion to the contrary. While the court's language neither bears out this interpretation of it nor amounts to a withdrawal of that question from the jury's decision, it would not have been harmful error had it treated the fact that the car was lighted as established. Every witness who testified upon the subject, including the plaintiff's own, so testified explicitly, and there was no evidence to the contrary from any one of the several witnesses of the affair. A conclusion otherwise by a trier would have been wholly unwarranted. Counsel for the plaintiff have indeed attempted to justify a claim to the contrary by deductions drawn from the fact that the chauffeur did not see the boy; the argument being that, as he did not see him, there was no other so reasonable a deduction as that his lights were not lighted. A sufficient answer to this line of reasoning is that there are other deductions equally well founded, and that the inference thus sought to be drawn is based upon pure speculation and opposed to an abundance of direct and uncontradicted evidence of eye witnesses. [6, 7] Reasons of appeal 3 to 8 are based upon the failure of the court to instruct the jury either in the language of the statute or in substantial accord therewith what our statutes prescribe as rules to be observed by motor vehicle operators while operating in a highway in respect to speed, the reduction of speed upon approaching other persons walking or riding in the highway, the reduction of speed and the giving of timely signal when approaching intersecting highways, URER CAN ENFORCE BOND GIVEN BY HUSBAND Liability on a surety bond given to secure payment by husband of support money to his wife was not contingent on the disbursement by the city or town of money for her support, under Gen. St. 1918, § 6418, where terms of the bond contained no such limitation. the display of lights, the illuminating power (4. HUSBAND AND WIFE 319-CITY TREASof lights to be displayed, and the passing of persons overtaken. P. A. 1917, c. 333, §§ 11, 14, 22; P. A. 1917, c. 305. It is suggestive of the plaintiff's counsel's regard for the importance of instructions such as the court is charged with having improperly omitted that, although he filed numerous and voluminous requests to charge, they embodied none that the jury be instructed in regard to either one of these statutory provisions as such. The court performed its whole duty when it gave, as it did, instructions correct in the law adapted to the issues and sufficient for the jury's guidance in the case before it. Hartford v. Champion, 58 Conn. 268, 271, 20 Atl. 471; Smith v. Hall, 69 Conn. 651, 666, 38 Atl. 386; Rosenstein v. Fair Haven & W. Ry. Co., 78 Conn. 29, 31, 60 Atl. 1061. "Instructions should be confined to matters which may be material to the determination of those issues upon the facts as they reasonably may be found in view of the evidence." Radwick v. Goldstein, 90 Conn. 701, 709, 98 Atl. 583, 586. Appeal from Court of Common Pleas, New Haven County; Ernest C. Simpson, Judge. Action by Henry Fresenius, Treasurer of the Town of New Haven, against David Levy and another on a penal bond. Judgment for plaintiff, and defendants appeal. No error. Action on a penal bond, brought to the court of common pleas in New Haven county, where a demurrer to the complaint was overruled, a default was entered, and the plaintiff was heard in damages. Facts found, and damages assessed at $104, and appeal by the defendants. No error. The writ was dated November 30, 1918, The remaining two reasons of appeal are and the complaint alleged that on February not pursued. There is no error. The other Judges concurred. (94 Conn. 244) 6, 1918, the defendants, David Levy and Samuel Litvin, bound themselves to pay the treasurer of the city of New Haven the sum of $200, the obligation to be void if Litvin should pay $4 weekly to his wife, Katherine, for her support, for the period of six months from that date; that Litvin failed, neglected, and refused to make the payments called for FRESENIUS, Town Treasurer, v. LEVY et al. during that period; that although duly de (Supreme Court of Errors of Connecticut. Dec. 22, 1919.) manded no part of the $200 had been paid, and that the sum of $104 was then due upon the obligation. The defendants pleaded in abatement, as1. JUDGMENT 112-FAILURE TO ESTABLISH signing several grounds on which issues of PLAINTIFF'S OFFICIAL STANDING CANNOT BE In action by town or city treasurer on penal bond to secure payment by husband of support money to his wife, defendants, defaulting after their demurrer to complaint was overruled, cannot thereafter for the first time urge failure to establish plaintiff's official standing as treasurer, nor attack the validity of the bond, as such matters were available only as matters of defense which the default settled. 2. APPEAL AND ERROR 500(3) NOT REVIEWABLE. ASSIGN Assignments of error on alleged rulings on reception of testimony will not be considered, where nothing in the record warrants the assumption that such rulings were made. fact were joined by the plaintiff's denials, and the plea was overruled. The single ground which has any bearing here is dealt with in the opinion. The complaint was then demurred to, substantially for not disclosing that the proper authorities had furnished any support or paid out any money to the woman because of Litvin's default, and before the bringing of the action. The demurrer was overruled, the defendants were defaulted for failure to MENTS OF ERROR TO RULINGS NOT IN RECORD, plead further, and upon a hearing in damages the court found that the bond sued upon was taken in lieu of a penalty of 60 days in jail imposed by the criminal court of common pleas in New Haven county, upon Litvin's conviction of a charge of nonsupport; that the defendants were wholly in default of all payments provided for by the bond for the entire period of six months, and that "prior to the bringing of this action the selectmen of the town of New Haven furnished no support to the said Katherine Litvin," and rendered judgment for $104, that being the amount of the defaulted payments 3. JUDGMENT 123(1) MOTION FOR NON SUIT AFTER DEFAULT NOT AUTHORIZED. On appeal, from judgment rendered after defendants defaulted when their demurrer was overruled, error alleged in denial of a so-called motion for nonsuit on the hearing in damages will not be considered; such motion being foreign to the procedure. |