(107 A.) facts which incite a person of reasonable | nor plea or answer in set-off in bar. The Pracprudence to an inquiry under similar circum- tice Act did not change the practice under setstances is notice of the fact which a reasonably diligent inquiry would — -", on the ground that it would mislead the jury. It is evident that some part of the charge the reporter failed to get, and, while this court will not resort to speculation to sustain a bill of exceptions, it is so obvious that the omitted word was "discover," we do not feel, in completing the sentence by supplying that word, that we are speculating. With the sentence thus supplied, and looking at the charge as a whole, we do not think the defendant's exception can be sustained. [16] The court in this connection said: "The creditor must have such a knowledge of facts as to induce a reasonable belief of the preference." Then further along in his charge, in addition to what has already been quoted, the court said: "If the creditor accepts a transfer under circumstances which would lead a man of ordinary prudence and sagacity to believe that he was being preferred by the debtor over other creditors of the same class, without making investigation, he will be charged with all the knowledge which he would have acquired had he performed his duty in this regard. There must be something more than a mere guess or suspicion, however. Reasonable cause to believe is not the equivalent of reasonable cause to suspect. If the suspicion is based upon facts which would incite an intelligent business man to an inquiry which would have disclosed that the transfer would effect a preference, it is the equivalent of a reasonable cause to believe, within the meaning of the statute." In this portion of the court's charge, it substantially follows the rule laid down in 3 R. C. L. 278, par. 105. Ordinary prudence is required of a creditor to ascertain his debtor's solvency, and, if he fails to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired if he had investigated. Buchanan v. Smith, 16 Wall. 277, 21 L. Ed. 280. Almost the exact language of that portion of the charge excepted to is stated to be the law in 7 C. J. 163, par. 264. This exception is not sustained. Exception 25 requires no further consideration than we have already given to the question here raised in our treatment of excep tion 18. [17] Exception 26 was to the court's failure to charge that the defendant was entitled to an offset for the rent from December 9th to the date of bankruptcy, if the jury should find that he received a preference. The complaint in this case is in general assumpsit, and the answer is a general denial and a special informal traverse or notice; but there is no complaint or declaration in set-off off. G. L. 1790. The practice, relating to that subject, therefore, is the same now as it was before the passage of that act. It becomes now, as then, necessary to plead it if it is relied upon by way of defense or as a counter action. The matter of set-off, not having been pleaded, was not an issue in the case upon which the court was required to charge. Fulton v. Wiley, 32 Vt. 762. This holding dispenses with any consideration of the items of $32 for money loaned by the defendant, and $21.50 for mileages sold the bankrupt. Very likely this is the reason why the court did not charge upon this matter. [18] There is no merit in exception 27. The case was tried as it was denominated, as an action of assumpsit, without objection to the form, and was so treated all through the trial, and it is now too late to raise that question. By disposing of the case in this way, we do not wish to be understood as holding that if the action was tort it would be error to allow a remittitur. See Crampton v. Valido Marble Co., 60 Vt. 291, 15 Atl. 153, 1 L. R. A 120. Judgment reversed, and cause remanded. MILFORD QUARRY & CONSTRUCTION SETTING ASIDE 1. NEW TRIAL 77(2) Where finding of court that damages awarded by jury were excessive was fully sustained by the evidence, and authorized inference that jury were influenced by prejudice or unwittingly fell into a plain mistake, court properly set aside verdict as far as damages were concerned. 2. NEW TRIAL 9-SETTING ASIDE VERDICT -LIABILITY-DAMAGES. In action against carrier under Pub. St. 1901, c. 160, §§ 1, 2, for failure to furnish proper transportation facilities, where it appeared, under the evidence, that jury's error or misconduct in awarding excessive damages was so great and the consideration they gave the case so brief that they did not fairly consider the aside on issue of liability as well as damages. issue of liability, court properly set verdict Exceptions from Superior Court, Hillsborough County; Sawyer, Judge. Action by the Milford Quarry & Construction Company against the Boston & Maine Railroad. Verdict for plaintiff set aside by court, and plaintiff excepts. Exceptions overruled. See, also, 78 N. H. 176, 97 Atl. 982. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The action was to recover damages for the alleged failure of the defendant to furnish proper facilities for the transportation of the plaintiff's property, under P. S. c. 160, §§ 1, 2. Bertis A. Pease and Doyle & Lucier, all of Nashua (A. J. Lucier, of Nashua, orally), for plaintiff. Charles J. Hamblett and Marshall D. Cobleigh, both of Nashua, and Warren, Howe & Wilson, of Manchester (D. C. Howe, of Manchester, orally), for defendant. WALKER, J. [1, 2] The finding of the court that the damages are excessive was fully sustained by the evidence, and authorized the inference that the jury were influenced by prejudice or unwittingly fell into a plain mistake. It follows that the verdict was properly set aside so far as the damages are concerned. But the court also found from the facts that the error or misconduct of the jury in their assessment of the damages was so great and the consideration they gave to the case was so brief, that they did not fairly consider the issue of liability. This finding presents no error, and justified the order setting aside the verdict on both issues. It does not "clearly appear that the effect of the error did not extend to all the issues tried." McBride v. Huckins, 76 N. H. 206, 213, 81 Atl. 532; Doody v. Railroad, 77 N. H. 161, 89 Atl. 487, Ann. Cas. 1914C, 846. Exceptions overruled. All concurred. Appeal from the municipal court of Rochester. The complaint charged that the respondent at Rochester on December 24, 1918, “did then and there unlawfully, knowingly, and cating liquors." A search warrant was iscriminally keep for sale spirituous and intoxisued, and in executing the same the officer Jamaica ginger, but he did not sign the refound upon the premises of the respondent turn of what he found until the respondent moved to quash the complaint for that reason, when the court permitted the return to be signed by the officer. To this the respondent excepted. The evidence tended to prove that the respondent kept Jamaica ginger for sale for beverage use, and that it contained 92 per cent. of alcohol. There was a trial by jury and a verdict of guilty. The respondent filed a motion in arrest of judgment, which was denied subject to exception. Oscar L. Young, Atty. Gen., and Albert P. WALKER, J. [1] The respondent claims that the liquor which was legally taken by virtue of the search warrant was not properly admissible in evidence, because the return on the warrant was not signed by the officer who made the search; and an exception was taken to the ruling of the court allowing the return to be amended in that respect. It would seem that the court was authorized to allow the amendment by P. S. c. 253, § 13. But, whether this is true or not, the failure of the officer to sign the return did not render the evidence furnished by the bottles seized inadmissible. The method by which they were obtained and produced before the court, even if illegal, did not affect their value as evidence of what they con1. CRIMINAL LAW 395-EVIDENCE-UN-tained. State v. Flynn, 36 N. H. 64; Boynton LAWFUL SEARCHES. STATE v. AGALOS. (No. 1580.) (Supreme Court of New Hampshire. Strafford. June 3, 1919.) v. Trumbull, 45 N. H. 408, 410. In a prosecution for criminally keeping for [2] The complaint was evidently drawn unsale spirituous and intoxicating liquors, fail- der section 19, c. 147, Laws of 1917, which ure of officer to sign a return to a search warprovided thatrant did not render it improper to admit in evidence liquor seized under the search warrant. 2. INTOXICATING LIQUORS GINGER. 134-JAMAICA Jamaica ginger containing 92 per cent. alcohol and kept for sale as a beverage was "intoxicating liquor" within the meaning of Laws 1917, c. 147, § 19, and a prosecution could be had under such section, notwithstanding section 21, relating to Jamaica ginger. "If any person, not being authorized by law to sell intoxicating liquor, shall sell, or keep for sale, any intoxicating liquor in any quantity, he shall be fined," etc. The proof was that the respondent kept for sale Jamaica ginger as a beverage containing 92 per cent. of alcohol. By section 60 intoxicating liquor includes "any beverage, by whatever name called, containing more Transferred from Superior Court, Strafford than one per cent. of alcohol, by volume, at County; Marble, Judge. sixty degrees Fahrenheit; and any beverage any part of which is intoxicating." It fol James Agalos was prosecuted for knowing-lows that the Jamaica ginger which the rely and criminally keeping for sale spirituous and intoxicating liquors. Verdict of guilty. Transferred after denial of a motion in arrest of judgment. Exceptions overruled. spondent kept for sale as a beverage was intoxicating liquor within the legislative definition. The offense charged falls within the apparent prohibition of the statute quoted. For other cases see same topic and KEY-NUMRER in all Kev-Numbered Digests and Indexes (107 A.) But the respondent claims that the prosecu- | some time previous to the accident. In contion cannot be sustained under section 19, because section 21 provides that "The sale of Jamaica ginger, or other compounds of alcohol, in such quantity, or with such frequency, as to indicate that it is intended for beverage use, shall be deemed unlawful selling of intoxicating liquor, within the provisions of this act; and the punishment shall be the same as in the case of selling or keeping for sale intoxicating liquor." sequence of a riot call to the police station of the city of Philadelphia, a police patrol wagon driven rapidly, proceeded westward on the north side of Federal street. The horses and front wheel of the wagon passed over the street car track, and when the rear wheels of the patrol wagon struck the east track the axle of the wagon broke, the right rear wheel of the wagon was detached from the axle of the wagon and was projected forward for a distance of about 100 feet, when it struck the curb and was projected upon the sidewalk and struck John J. Henry in the back, throw ries for which this suit was instituted. Verdict for plaintiff in the sum of $7,457, and judgment entered thereon. The court overruled defendant's motion for judgment n. o. v. The argument is that, as the sale of Jamaica ginger, under certain conditions, is prohibited by section 21, the sale or the keeping of it for sale is not an offense under sectioning him to the ground, and causing the inju19. It must be admitted that the intention of the Legislature in regard to the question thus presented is not clear, when both statutes are considered together. As above pointed out, the language of section 19 is broad enough to cover the keeping for sale as a beverage of the compound in question, and it is clear when both sections are read together that the purpose of section 21 was to make certain facts-the quantity and frequency of the sale evidence upon the purpose with which the compound was kept. As the Jamaica ginger was kept for sale to be used as a beverage, the respondent's motion was properly denied. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, WALLING, and SIMPSON, JJ. Harry T. Kingston, Asst. City Sol., John P. Connelly, City Sol., and Harry S. Platowsky, Asst. City Sol., all of Philadelphia, for appellant. John Martin Doyle and Eugene Raymond, both of Philadelphia, for appellee. CORPORATIONS 110-ISSUANCE OF STOCK A bill by a corporation to cancel stock issued to its director and officer, where trial court found as a fact that it was issued for services in reorganizing corporation, the value of which was determined by directors without any fraudulent intent, should be dismissed, although compensation allowed might have been extravagant. Appeal from Court of Common Pleas, Philadelphia County. Trespass to recover damages for personal injuries to plaintiff's husband. From the record it appears that at the intersection of Twenty-Seventh and Federal streets, in the city of Philadelphia, there was a large hole or break in the street paving along the street Bill for the cancellation of stock by, the and track about 6 or 8 feet in length, and Colonial Biscuit Company against Charles about 3 or 4 feet in width, and about 8 or Orcutt. From a decree dismissing the bill, 10 inches in depth, which had existed for plaintiff appeals. Appeal dismissed. For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes Ferguson, J., after stating facts and concussion of law, filed in the common pleas the following discussion: On May 13, 1908, a receiver was appointed to take over and conduct the business of the Colonial Biscuit Company. The receivership continued until December 15, 1913. About two years before the last date Charles H. W. Cliff, the president of the company, solicited the interest and services of the defendant in bringing about the reorganization of the company, telling him that he thought he could secure him a position in the company and some of the capital stock, if the reorganization was accomplished. During that period of two years the defendant made efforts, most of them vaguely described, to induce some persons to take an interest financially in the corporation. He purchased a few claims of creditors, being afterwards reimbursed for the amounts thus expended. He induced the bank, which was a creditor of the company, to offer to extend a larger credit, if certain bonds were deposited with the bank as additional security. The actual procuring of these bonds was the work of the president of the company. As a result, however, of their joint efforts, the additional credit was obtained from the bank and the reorganization was assured of success. On December 2, 1913, nearly two weeks before the company passed out of the hands of the receiver, the defendant was elected a director and also the secretary and treasurer of the company. On the 5th day of December, 1913, an elaborate agreement, participated in by bondholders and stockholders, was made, which agreement was ratified by the board of directors. This agreement provided for the method of reorganization, and among other things there was to be an increase in the capital stock from $25,000 to $100,000. A part of this common stock was to be distributed as therein provided and the residue to remain in the treasury. As above stated, on December 15, 1913, the receivership ended. When the reorganization of the company seemed about to be accomplished, the defendant suggested to the president that he ought to have some of the stock. To this the president assented, but said it would have to be arranged later. No definite promise was made, and no amount of stock was suggested. Some months after the reorganization was completed, and while the defendant was acting as secretary and a member of the board of directors, he again expressed his desire to have some of the capital stock, in consideration for his services rendered. To this suggestion the president replied that it could not be done at that time, because the board of directors as then constituted would not approve. He agreed, however, to give a letter certifying that the company was indebted for 150 shares of stock for the services referred to. The letter was prepared, and it was intended that it should be dated prior to the time of the reorganization. In point of fact the letter was dated January 10, 1915, more than a year after the reorganization, and instead of containing a certificate that the company was indebted for 150 shares of stock, it declared that it was indebted for 15,000 shares. This was another blunder, as it is probable it was intended to state the par value of 150 shares. On October 21, 1915, the then board of directors adopted a resolution that there be issued to the defendant 150 shares of common stock "in payment for services rendered in reorganizing the company." Following this resolution a certificate of stock was issued to the defendant. On December 21, 1916, the then board of directors passed a resolution rescinding and revoking the resolution of October 21, 1915, declaring the issue of stock without consideration and void, and instructing the president to institute proceedings to enforce the resolution for the purpose of having the stock canceled. That resolution was afterwards ratified at a meeting of the stockholders held February 8, 1917, and these proceedings are for the purpose of compelling the cancellation of the stock and for an injunction restraining the transfer thereof. There is no evidence that anybody connected with the corporation knew of the understanding between Cliff and Orcott prior to the reorganization of the company. There was no contract made by Cliff which could have been enforced against the company. Prior to the reorganization Cliff had merely said that he thought the defendant ought to have some stock, but he neither promised it, nor, if he did promise it, did he state the amount. Nothing was done with reference to the matter until nearly two years after the reorganization was completed, and during these years the defendant acted as director and secretary and treasurer, and as secretary and treasurer he received a regular salary. If not reflect favorably upon these two men. There are features in the evidence which do the defendant was to receive stock for his services, it was not made known to the stockhold not ers or submitted to the board of directors after the reorganization, because that board was supposed to be so constituted that it was thought such a proposition would be acceptable. No demand was made by defendant for compensation. That matter was postponed until a friendly board of directors was in office, and so far as the evidence shows the matter was not brought to the attention of the stockholders until after the stock was issued. In addition, there was a clumsy attempt to make a contract in writing and to antedate it, which by some carelessness failed. To all these matters the defendant was a party. The president of the company, in addition to his participation in the matters referred to, now desires for some reason to repudiate the matter which he was instrumental in bringing about. It is true the bill is filed by the corporation and the president is not a party, but he holds or controls a large part of the capital stock and is practically the only witness in support of the bill. In our opinion the bill should be dismissed. It is true as a matter of law that capital stock may be issued only for money, labor done, or property actually received; but we cannot say that the services rendered for the company by the defendant were not such services as could be compensated for by the issuance of capital stock. The company had been in the hands of the receiver for several years. The defendant's services were rather vaguely described, but there can be no doubt he assisted in procuring the reorganization. It may be he was not the sole cause in bringing about the result. The presi (107 A.) dent may have had his part in it, but the lat- For the reasons so clearly stated in the discussion of the case by the learned president judge, the appeal is dismissed. SCHOEPP v. GERETY. Feb. 10, 1919.) 150 shares of capital stock, it must be considered as having appraised those services and placing that value upon them. The value of 1. MUNICIPAL CORPORATIONS 706(6)—IN the stock does not appear in evidence, and we have no way of appraising it. As above stated, the president could not make a contract, either before or after the reorganization, which would bind the company. But if the board of directors, the legal custodians of the property of the corporation, ratified his indefinite promise and gave it form, it is beyond our power to say there was no value given, or that the value thus fixed was excessive. This is not the case of an officer or director seeking compensation for services rendered during the term for which he was elected; neither is it the case of one instrumental in bringing about a formation or reorganization of a corporation who seeks to compel the enforcement of a contract made by one not authorized to make it. It is rather the case of an indefinite contract for services rendered in the past and having some substance, which contract was formally ratified by the board of directors of the corporation. In such case a court of equity cannot grant relief. The prothonotary is directed to notify the parties or their counsel of the filing of the above adjudication, and that, unless exceptions there to are filed within ten days, a decree will be entered in accordance therewith. Argued before STEWART, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. E. Stanley Richardson, of Philadelphia, for appellant. In an action for injury to a pedestrian when struck by defendant's motortruck, held that the direction in which the truck was traveling and its action at the time of the injury were for the jury. 2. MUNICIPAL CORPORATIONS 706(6)—IN JURY FROM AUTOTRUCK NEGLIGENCE In an action for personal injury when struck by defendant's motortruck at a street intersection, evidence that the street was slippery, and that plaintiff stopped and looked before attempting to cross, and as to its speed, held to make defendant's negligence a question for the jury. 3. MUNICIPAL CORPORATIONS 706(5)-INJURY FROM MOTORTRUCK-SPEED-EVIDENCE. The action of motortruck by which plaintiff was struck when brakes were applied, its position when it finally stopped after skidding and swinging around several times, might warrant an inference that it was traveling at a much higher speed than that stated by driver or that, regardless of its actual speed, he failed to have it under such control as condition of street and position of plaintiff required. 4. MUNICIPAL CORPORATIONS 705(2)—RELATIVE RIGHTS OF MOTORTRUCK AND OF PEDESTRIAN. Henry J. Scott and Albert T. Hanby, both of defendant's truck at a street intersection of Philadelphia, for appellee. The rights of a pedestrian and of the driver were mutual, and each was bound to use such care in view of the other's presence as the circumstances warranted. 705(1)—IN PER CURIAM. Nothing need to be added 5. MUNICIPAL CORPORATIONS Where the driver of defendant's autotruck, by which plaintiff was struck, was aware of the slippery condition of the street and presumably of the tendency of the truck to skid on a sudden application of the brakes, it was his duty to approach a street intersection with due regard to the rights of pedestrians. Appeal from Court of Common Pleas, Philadelphia County. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |