26 Conn. 76 | Conn. | 1857
The defendant in this case moves in arrest for the insufficiency of the declaration, and there is also a motion for a new trial, founded on exceptions to the charge of the court, and to the rulings of the court in respect to the admission of evidence; and also on the ground that the verdict is manifestly against the evidence in the case.
The motion in arrest is founded upon the supposition that the suit is brought against a copartnership by the copartnership name, without naming with sufficient certainty the parties who compose the copartnership; and also on the ground that it appears upon the face of the writ and declaration, that there was a joint contractor with the defendant, and as the name of such joint contractor is omitted, the declaration is fatally defective. We think however that there is no foundation in fact on which to base either of these claims. In the writ the officer is commanded to attach the goods or estate of “ M. W. Chapin & Co., a firm doing business in said Hartford, and consisting of Merrick W. Chapin,
The claim of the plaintiff was for the work and labor of her husband under a contract with the defendant, and for moneys expended by him for board, while he was in the service of the defendant in California, or was there ready to perform such services according to the terms of the contract, but was prevented from so doing in consequence of the neglect of the defendant to furnish the stipulated employment. By the contract the deceased agreed to go to California, and take charge of the engine department of one of the defend
The court left it to the jury to say, upon the evidence, whether the deceased conducted reasonably in taking out said Chase with him, and whether, upon all the facts in the case, anything, and how much, was to be recovered for his services. This is objected to on the ground that as the contract was for a stipulated sum per month, for certain specified services, he furnishing his own assistants, it was not proper to submit to the jury whether he was entitled to compensation for any particular part or portion of those services. If by this is meant that it would be improper to submit to the jury whether the plaintiff was entitled to anything more than the stipulated compensation for the whole service, no doubt the claim would be well founded, if there was any foundation in fact for it to rest upon. But we suppose nothing more was meant by this than that if they should find the plaintiff to be entitled to anything for his whole service under the contract,
The book of the deceased, containing entries in his handwriting, in respect to his transactions under, this contract, was received in evidence, though objected to by the defendant. But the statute passed in 1850, (Statutes, ed. 1854, p. 94,) provides that in.suits by or against the representatives of deceased persons, the entries and written memoranda of the deceased, relevant to the matters in issue, may be received as evidence, subject, in regard to weight and credit,’ to the rules under which the testimony of parties and other interested evidence is received. We do not see how, under this statute, the entries relevant to the performance of the contract on the part of the deceased could have been excluded.
When the deceased arrived at San Francisco, the defendant’s boats were up the river, opposite Sacramento; and he thereupon left San Francisco, and said to the witness “ that he was going up the river to Sacramento, to go on board the boats.” This is objected to as the declaration of the party in his own favor. But it was manifestly a part of the res gestee, and as such admissible in evidence.
The deceased was a party to certain proceedings in California, under which one of the defendant’s boats was sold, and the proceeds applied to the payment of the debts of the parties for whose benefit the boat was sold; and the plaintiff, for the purpose of showing that the proceeds which came to her, were less than the defendant claimed them to be, and what they really were, and how much should be allowed the defendant therefor, was allowed to prove by the agent -whom the deceased authorized to receive said proceeds, that, by virtue of a written order from the deceased on the lawyer
The request to charge the jury that the action co Id not be sustained against the defendant, alone, is founded upon the idea that the writ and declaration, and the defendant’s signature to the contract, and the contract itself, show that there was some other person or persons interested with the defendant in the transaction. This claim has, we think, been sufficiently answered in what has been said under the motion in arrest. If the objection does not appear upon the face of the declaration, as we have said it does not, it was then for the defendant to plead in abatement the nonjoinder of parties who ought to have been joined; and not having done so, he can not take any advantage of any such fact, even if it exists, of which we can know nothing.
We think the charge of the court, in respect to the money paid by the deceased for his and his assistant’s board, was correct. By the contract, the defendant agreed to pay a stipulated sum per month, “ and board, on board said steamer, for the services performed as heretofore expressed.” Under this language, the defendant takes no exception to the charge in respect to the board of the deceased, but claims that the charge was wrong in respect to the board of the assistant-But as the contract contemplated that the service was to be performed by the aid of such assistants as should be necessary, and provided that the defendant should furnish such assistants, we think when the contract provided that, in addition to the stipulated compensation, he was to be furnished with “board on board the steamer,” it was meant that he
The defendant claims that the court below was wrong in charging the jury that the contract bound the defendant to pay for the service at the end of each month, and that the sums for service, being due at the end of each month, if they found for the plaintiff, they might compute the interest on the„ amount found due for each month’s labor, from the end of each month. The words of the contract on this part of the case are, “For the faithful performance of the aforesaid duties, as specified, we, the said M. W. Chapin & Co., on the second part, agree to pay the said Henry Douglas, of the first part, the sum of two hundred and fifty dollars per month,” and then, at the end of the contract, this language is used: “ It is expected the services will be paid at the end of each month.” We do not see how the stipulation for monthly payments for the services could be made any clearer than this language makes it.
The contract contemplated a years’ service, determinable, however, at the end of six months, at the pleasure of either party, on his giving the other party one month’s notice before the expiration of said six months. And the steamers, on board which it was contemplated the service would be performed, were both sold under legal process, and passed into other hands, before the expiration of six months, and the deceased, at intervals, for short periods, was, from time to time, employed on board one of the steamers for the new owners. And the defendant claimed that the deceased was not entitled to anything on the contract, for work and labor after the boats were sold and he entered into the new em
The point that there was no proof that the contract was terminated, and therefore there could be no recovery on the common counts, was not made in the superior court, and can not therefore be considered now. On the contrary, the motion states that it was not claimed that said Douglas had forfeited his rights under said contract by reason of a failure to give notice, or because he left California before the six months expired.
On the motion for a new trial on the ground that the verdict is against the evidence in the cause, as every presumption is in favor of the verdict of the jury, it is of course incumbent upon the defendant to show that it is clearly and manifestly contrary to the evidence, or the court will not interfere with it. No doubt there is ground to apprehend that the damages assessed by the jury are greater than we should have given, but this would depend upon how much the deceased expended in California to maintain himself and his assistant there, while waiting for employment in the business contemplated by the contract, as well as how much he received from his employment by other parties while he was in this situation. In looking at the evidence, we find nothing that will enable us to state the account with that
On the whole ease therefore we advise the superior court not to grant a new trial.
In this opinion the other judges concurred.
New trial not advised.