conflict with either section 3708 or section 3713, | Berkshire division over a highway called and was not limited in its operation to a change Campbell avenue within the borough was so in location of a highway, but clearly covers a change in the width of a highway, involving the narrow as to cause great danger to life and erection of a new bridge. property, and that common convenience and [Ed. Note.-For other cases, see Railroads, necessity required a widening of such space, Cent. Dig. § 293.] and asking for an order upon the plaintiff 3. STATUTES 211-CONSTRUCTION-TITLE. for the widening of the space sufficiently The title of a statute is significant but not to secure the safety of the public, the railcontrolling in determining the intent of the en-road commissioners after notice and hearing

plaint was overruled, and this was assigned for error; but the questions thus raised have not been pursued in the defendant's brief -CHANGE IN CROSSING BRIDGE-STATUTE. or argument, and, so far as the objections The provision of Pub. Acts 1907. c. 260, that to the complaint were not overcome by subthe apportionment of expense shall be as the sequent amendment, the same questions were railroad commissioners deem equitable, but that the apportionment to the municipality apply- raised upon the trial as upon the demurrer ing for the change shall in no case exceed one- and have been argued upon other assignhalf the expense, warranted an assessment ments of error. The correctness of the rulagainst the defendant municipality of one-third

ing the remainder of the order, did not authorize the railroad commissioners to impose upon the borough any portion of the cost of making the change in the highway.

[2] Section 3708 provides that every company which shall construct a railway across any highway shall construct it so as to cross over or under the highway, and that it shall make and maintain such bridges, abutments, etc., as the railroad commissioners shall order and the convenience and safety of the public travel upon such highway may require; but that under certain circumstances the commissioners may order the railroad company to construct its railroad at such crossing upon a level with the highway. This statute has been long in existence, and its main purpose, as is evident, was to prevent, after its passage, the construction of railroads across existing highways at grade except in rare cases where, for special reasons, the commissioners may order their construction across the highway at grade. The defendant is correct in its claim that this statute makes no provision for the payment by the municipality, which has the duty of keeping the highway in repair, of any part of the expense of building the bridge or its approaches which are referred to in the statute. Whether, in the absence of a conflicting statute, the railway company would under this statute, as claimed by the defendant, be bound to build and maintain at its own expense not only the bridge ordered to be built at the time the railroad was constructed but future bridges of greater length and greater cost made necessary by changes in the highway to meet the convenience and necessities of public travel

rods wide in 1775 and was of that width when the railroad was located and built over it in 1872. After the railroad was located, the railroad commissioners ordered that it should cross over the highway by a bridge the opening in which for the highway should be thirty feet wide. The bridge was so built, the railroad purchasing from the owners the land, within its layout, which abutted on the highway on each side. At the time the order now in question was passed, and for some years prior thereto, the width of the highway outside of the portion crossed by the location and layout of the railroad was 60 feet. This was the condition of things when the petition was brought, and, the railroad commissioners having found that public convenience and necessity required a change in the highway so that the space between the abutments of the bridge over the same should be 60 instead of 30 feet wide and the highway of the same width within as without the railroad location, the case comes clearly within the language of the act of 1907 (chapter 260); there being a highway passing under a railroad which the convenience and necessity of the public required to be changed. The defendant contends that the widening of the highway from 30 to 60 feet did not constitute a change within the meaning of the act, and that the change contemplated by the act was a change of the location of the highway. That a highway may be changed by widening it or by raising or lowering its grade seems too clear to require discussion. The language of the act is broad enough to clearly include such changes. Nowhere in the act is there any language tending to limit the change in the highway to a change in its location. On the contrary, the broad language used would seem to refer to any change whether of width, grade, or location. In one place, the changes are called alterations. In another, it is provided that the party upon whom the duty of making the changes is imposed may "When any highway passes over or under a railroad, if the convenience and necessity of the use the material and abutments of an existpublic require a change in such highway, the ing bridge in the old highway in the contown, city, or borough in which such highway is struction of a bridge in the substituted or located may bring a petition to the railroad com- changed highway. The commissioners are missioners * * and, after the notice prescribed said railroad commissioners given power to make such orders as they shall proceed to a hearing on said matter, and deem necessary for the convenience and nemay make such order as they deem necessary for cessity of the public or the safe or suitable the convenience and necessity of the public or the safe and suitable operation of the railroad. operation of the railroad, coupled with the The expense of any changes ordered as broad powers which are given them in the hercinbefore provided shall be apportioned statute relating to the removal of grade among the railroad company, the town, city, or borough interested therein, and any street rail- crossings (General Statutes, § 3713), which way company whose tracks are located in such has been held to empower them for the purhighway." poses of that statute to change the location of the highway or the width or grade of the same. The act does not purport to be an amendment of either section 3708 or section 3713. The purpose of the first of these was, as already stated, to prevent the construction of railroads across existing highways at grade. The purpose of the latter was to provide a method of removing grade crossings

upon the highway, we need not stop to inquire, because, if so, we are satisfied that the law was changed by chapter 260 of the Public Acts of 1907, under which it is manifest that the railroad commissioners were acting when they passed the order whose validity is now attacked. That act provides that:

*

*

The language of the statute clearly covers any case where the convenience and necessity of the public require a change in any existing highway which passes over or under a railroad. In the case before us the undisputed facts show that the highway in question was an ancient highway when the railroad which is now the plaintiff's Berkshire division was

deals with crossings where the grade of the | sel by the title to the act as printed, where highway is already separated from that of it is entitled an act concerning change in the railroad. Its purpose is to provide a location of highways crossed by railroads. process by which changes in the highway af- Viewing the language of the entire act, it is fecting the railroad at such crossings may be clear that the Legislature intended that the secured by municipalities responsible for act should apply to other changes than those the construction and repair of such highways referred to in the title. when the necessities of public travel require such changes. The act is in no respect in conflict with either of the sections of the General Statutes referred to, unless it be that the apportionment of the expense of making the change which is provided for therein is inconsistent with the provision (section 3708) that the railroad shall build and maintain the bridges, abutments, etc., required to separate the two grades.

[3] The title to an act is significant, but not controlling, in arriving at the intent of an enactment. We are satisfied from the language of the act itself that the Legislature intended by it to provide a way for securing a change in the width or grade of a highway at a railroad crossing like that here in question, as well as changes in the location of the highway, and consequently that the superior court correctly held that the railroad commissioners acted within their jurisdiction in making the orders now complained of. This determines the case upon its merits and makes it unnecessary to inquire whether upon the court's finding the defendant was estopped to question the jurisdiction of the commissioners in passing the orders.

The defendant claims that there is an inconsistency here, but he refers to it not as showing that the act of 1907 amends section 3708, as it does if inconsistent with it, but as showing that it is improbable that the Legislature intended by this act to give the railroad commissioners power to make such a change as was ordered in the present case. [4] It is claimed by the defendant that, if It is said that the policy of the state from the cost of the change in the highway could 1849 when the act, which, with changes, is be apportioned, too large an apportionment now section 3708, was passed, has been to was made to the borough for two reasons. impose upon railroads the expense of build-It is claimed that items were included in the ing and maintaining all bridges, abutments, damages which represent the expense of etc., required to avoid or remove grade cross-equipping and running the railroad, and that ings, and that it is not to be supposed that under the provisions of the statute no more in cases like the present it was intended to than one-quarter of the expense of the change depart from that settled policy. The defend- could legally be apportioned to the borough. ant is not quite accurate in the supposition As we understand the first claim, it is that that railroads in all cases have been required the expense which was apportioned included to build at their own cost and maintain all the erection of a new bridge and, inferentialsuch bridges at such crossings. The grade ly, equipping it with rails, etc., and building crossing act (General Statutes, § 3713), which abutments and embankments as called for by was enacted long after the act which is now the change in the bridge, and that these were section 3708, provides for the apportionment equipments for running the railroad and not of the expense required to carry out the or- changes in the highway. These were a necesder of the railroad commissioners to separate sary part of the change in the highway orderthe grades. This provision is similar to the ed by the commission. By "the expense of one in the 1907 act. Whether a railroad any change ordered," the statute means all which has built and is maintaining a bridge the necessary expense which the party orderover a highway as ordered by the railroad ed to make the change is put to in making it. commissioners should, when public conven- The statute expressly provides for the use ience and necessity require a wider highway, be compelled to build and maintain a new, longer, and more expensive bridge to answer such demand for a wider highway, or whether it would be fair and equitable in such a case to require the municipality which asks for the change to pay some portion of the expense of it, are fair questions for the Legislature, and the fact that that body has [5] The second claim is that the apportionenacted a law which provides for the appor- ment is to be "among the railroad company, tionment of the expense of making a change the town, city or borough interested therein, at such a highway crossing among the par- and any street railway company whose tracks ties interested affords no logical ground for are located in such highway or which has the inference that the apportionment can be power to lay its tracks therein as provided made only when the change made is in the by section 3863 of the General Statutes." It location of the highway. The view that the is claimed in the defendant's brief that the change referred to in the act of 1907 is a apportionment is to be made as provided in change in the location of the highway was section 3863. We think that the language

of the old bridge and abutments in making the change. This is as much a part of the expense of the change as land damage and the cost of grading the highway and laying the sidewalks. The change provided for involves all that is necessary to put the crossing in practicable condition for use by the town or borough and the railroad.

located in Seattle, Wash., where it is engaged in the sale of lumber products. The defendant is a retail lumber merchant in Pomfret. Plaintiff employed one Phillips as a local salesman on commission, and in

of a telephone conversation with Phillips bought a carload of shingles from the plaintiff at the agreed price of $435.50, payable 60 days from receipt of the shingles. They were received in due course, and on May 22d the defendant mailed to the plaintiff a

made among the railroad, the municipality | were not disputed. Plaintiff is a corporation involved, and, if there be any railroad company which has tracks located in the street or which has power to lay its tracks therein as provided by section 3863, some of the expense shall be apportioned to it. Section 3863 does not provide for any apportionment February, 1914, the defendant as the result of expense. It gives street railway companies which have tracks in the highway or power to lay tracks there the right to apply for a change of grade, and provides that the proceeding upon their petition shall be the same as provided in section 3713. [6] Chapter 260 of the Acts of 1907 express-check for the agreed price drawn upon the ly provides that the apportionment shall be made in such manner as the commissioners deem equitable, but that the apportionment to the town or borough applying for the change shall in no case exceed one-half the expense. The assessment against the borough in the present case was of one-third of the cost of the change and was warranted by the statute.

Windham County National Bank. On June 3d the check was returned and presented for payment and protested for lack of funds; and the plaintiff, on receiving notice of the protest, telegraphed the defendant asking whether and in what manner the defendant had arranged to protect its check. Defendant telegraphed back under date of June 8th asking that the check be returned to

There is no error. In this opinion the oth- bank, and received the following telegraphic er Judges concurred.

(91 Conn. 350)

WASHINGTON CEDAR & FIR PRODUCTS
CO. v. ELLIOTT.

reply dated June 10th:

"Make new draft or check and deliver Phillips to-day. Will mail protested check direct on receipt."

At the same time the plaintiff directed Phillips to see the defendant and get the check. On June 12th Phillips called on the

(Supreme Court of Errors of Connecticut. Feb. defendant at his home and demanded another

21, 1917.)

1. PRINCIPAL AND AGENT

124(3)-AUTHORITY OF AGENT-APPARENT AUTHORITY-AcCEPTANCE OF CHECK.

Where, after the first check sent by the buyer to the seller had been protested, the seller telegraphed the buyer to make a new draft or check and deliver it to the seller's salesman and directed the salesman to call for the check, it was a question for the jury whether the salesman had been clothed with apparent authority to accept for the seller, a check made payable to his order, so that it was error to direct a verdict for the seller for the purchase price, after the salesman had absconded with the proceeds of a check payable to him.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 724.]

-

check for the original debt plus protest fees, and the defendant, believing that he was acting under the plaintiff's instructions, delivered to Phillips a check for $437.79 payable to Phillips' order. Up to that time the defendant had never seen Phillips. Phillips had the check certified, appropriated the proceeds to his own use, and the plaintiff has never received any part of the same.

Charles L. Torrey, of Putnam, for appellant. Charles E. Searls, of Putnam, for appellee.

BEACH, J. (after stating the facts as above). [1] The trial court directed a ver2. PRINCIPAL AND AGENT 122(1)-AUTHOR- dict for the plaintiff on the theory that the ITY OF AGENT EVIDENCE-DECLARATIONS only question in the case was as to the OF AGENT. The declaration of an agent that it made proper construction of the plaintiff's teleno difference whether the check was drawn to gram of June 10th, that this was a question his order, or to the order of his principal, is not of law for the court, and that the telegram, admissible to prove the extent of the agent's when properly construed, did not authorize apparent authority. the defendant to make the check payable to Phillips' order.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 416, 418.]

We think the trial court erred in not taking into account the quesAppeal from Superior Court, Windham tion whether the plaintiff had, by its conCounty; Joel H. Reed, Judge.

on Phillips an apparent authority to accept a check drawn to his own order. In his

duct, interpreted in the light of the surroundAction by the Washington Cedar & Firing circumstances known to it, conferred upProducts Company against Joseph H. Elliott to recover the agreed price of a carload of shingles. Judgment for plaintiff on directed verdict, and defendant appeals. Error, and new trial ordered.

In this action to recover the agreed price of a carload of shingles, the defendant pleaded payment, and the court directed a verdict for the plaintiff. The material facts

capacity as a salesman on commission Phillips had no authority to accept payment for goods sold, but in demanding and receiving this check Phillips was no longer acting under his original limited authority as a salesman. He was acting under a special authority given him for that purpose, which

ORD-DEFECTIVE CONDITION.

unable to deliver "certain flour" purchased by A mortgage stating that whereas grantor is grantee, mortgage being given to indemnify latter against loss, conveyed no definite informarectly or by reference and creditor seeking intion and fixed no maximum obligation either diformation would have to go outside the record therefor; hence it was too indefinite to be effectual against subsequent incumbrances.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 397, 402-404.]

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

evidently authorized him, not only to take | 2. MortgaGES ✪171(4)—PRIORITY OF RECthe check into his own hands, but to deal with it in some way for the purpose of protecting the plaintiff against a second protest for lack of funds. It was obvious that he might do this in any one of three ways: By cashing the check and remitting the proceeds to his principal, by promptly depositing it in bank to the credit of his principal, or by having it certified and then mailing it to his principal. The plaintiff could have limited Phillips' authority to the last-named method of dealing with the check. It did not do so. The defendant was not directed by the telegram of June 10th to make a duplicate check, or to have the check certified, or to make it to the order of the plaintiff; but simply to make a new check and deliver it to Phillips. The defendant has complied literally with that direction, and it is found that in so doing the plaintiff acted in good faith. As we said in Romeo v. Martucci, 72 Conn. 504, 516, 45 Atl. 99, 100 (47 L. R. A. 601, 77 Am. St. Rep. 327):

""Whether or not a principal is bound by the acts of his agent, when dealing with a third person who does not know the extent of his authority, depends, not so much on the actual authority given or intended to be given by the principal, as upon the question: What did such third person, dealing with the agent, believe and have a right to believe as to the agent's authority, from the acts of the principal?'

串

The apparent authority of the agent which thus binds the principal, beyond that actually confer red, must always be deduced from authorized acts of the agent, and from surrounding facts with a knowledge of which the principal is charge able, and not from the acts of the agent himself in excess of his authority and of which the principal had no notice."

Action to foreclose mortgage by the Bridgeport Land & Title Company against the George Orlove Company and others. Judgment for plaintiff, and defendants Selig Portnov and the Bridgeport National Bank appeal. No error.

Harry L. Edlin, of New Haven, for appellants. Robert E. De Forest, of Bridgeport, for appellees Saltman Bros.

RORABACK, J. This action was instituted to foreclose a mortgage made by the defendant the Orlove Company to one Lewis Fredericks on a certain piece of land owned by the Orlove Company and located in the town of Fairfield. The defendants were the George Orlove Company, Selig Portnov, Herman Saltman, Benjamin Bernstein, and Max W. Dick (copartners in business under the firm name of Saltman Bros.), the New Rockford Milling Company, and the First Bridgeport National Bank. The amount of the mortgage was not disputed.

The single question made upon the trial of the case in the superior court was upon the

[2] Under this rule, the declaration of Phil- place to be given to the defendant Portnov in

lips that it made no difference whether the check was drawn to his order or to the order

of the plaintiff was not admissible for the purpose of proving the extent of his apparent authority.

Upon the admissible evidence there was a fair question for the jury whether the plaintiff had, intentionally or not, clothed Phillips with such an apparent authority to accept payment for the shingles by a check drawn to his own order that a man of ordinary prudence, acting in good faith, might reasonably rely on that appearance of authority. There is error, and a new trial is ordered. In this opinion the other Judges concurred.

(91 Conn. 496)

BRIDGEPORT LAND & TITLE CO. v.
GEORGE ORLOVE CO. et al.
(Supreme Court of Errors of Connecticut.
Feb. 21, 1917.)

1. MORTGAGES 171(4)—STAtement of CoN

DITION.

The condition of a mortgage must be so drawn that the record thereof will give reasonable notice of incumbrances upon the land affected.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 397, 402-404.]

the order of redemption. This controversy arose as between the defendant Portnov and

bis assignee, the Bridgeport National Bank as one party, and the defendants Saltman Bros.

It was conceded that the question as to Portnov's priority of right to redeem turned solely upon the effect of the condition in the Portnov mortgage which was in the following words:

"The condition of this deed is such that whereas, the said grantor is unable at the present time to deliver unto the said grantee certain flour purchased by the said grantee of the said grantor, and whereas said grantee may suffer a loss on account of the inability of the said grantor to deliver said flour unto the said grantee, as aforesaid: Now, therefore, if said grantor shall save said grantee harmless from loss within eighteen months from this date, then this deed shall be void; otherwise to remain in full force and effect."

The trial court held that this condition in this mortgage was too vague and indefinite to protect the mortgagee as against subsequent incumbrances, and that Portnov, in the order of redemption, should be placed next after the owner of the equity of redemption.

[1] No principle of law is more firmly established in this state than that the condition of a mortgage must be so drawn that