against Mary A. Grady for the conveyance of real estate claimed to belong to plaintiff, but standing in the name of defendant on the records. Judgment for defendant, and sioners have acted fairly, the court on ap- Action by Mary F. Giersch, executrix, peal may hear the facts. Moynihan's Appeal, 75 Conn. 358, 364, 53 Atl. 903. The court has found this to be a case of such unfair action on the part of the commissioners. There is no error. A grantor, who was unmarried and shiftless, and a drunkard, and whose only heirs were his two sisters, conveyed his land to one of the sisters, who covenanted that she would apply the rents and profits to his support, and would reconvey, if at any time thereafter he lived industriously, temperately, and creditably for three years. plaintiff appeals. Affirmed. Theodore M. Maltbie and Joseph P. Tuttle, both of Hartford, for appellant. John W. Coogan, of Hartford, for appellee. THAYER, J. [1] In October, 1886, John J. Grady conveyed to his sister, the defendant, by a warranty deed the land therein described, and on the same day the defendant executed and delivered to him a written declaration of trust, the essential part of which reads as follows: in consid "I, Mary A. Grady, * ** has eration that John J. Grady this day conveyed to me his real estate sitThe deed further expressly uated in said Collinsville, * * * have covenanted, promised and agreed, and do hereby covenant, promise and agree, to and with the said John J. Grady as follows: provided that the covenant should not extend to the grantor's heirs, executors, administrators, personal representatives, or assigns. Held, that the intent of the transaction was that the sister should have a beneficial interest therein, and should own the property absolutely in case of the grantor's death without performing the conditions on which the reconveyance depended; and hence that a reconveyance could not be compelled by the grantor's executrix. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 198; Dec. Dig. § 153.*] 2. TRUSTS (§ 68*)--ESTATE OF TRUSTEE AND BENEFICIARY-INTEREST REMAINING IN GRANTOR. Where a conveyance in trust is voluntary, and the trust fails or has been fully performed, a trust will result in favor of the donor or his heirs, unless it appears from the whole instrument that it was intended that the donee should take a beneficial interest in the estate, in which case the donee takes the estate discharged of all burdens. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 94; Dec. Dig. § 68.*] 3. TRUSTS (§ 58*) WRITTEN INSTRUMENTS - CREATING-MODIFICATION. "That I will cause the rents, income and profits of said premises to be expended in paying the taxes and for the necessary repairs, improvements, insurance and other proper charges on said premises, and all sums remaining shall be applied to the proper care and support of said John J. Grady, during his life. "Should Sarah Grady, an aunt of said John J. Grady, survive him, such sums so remaining after the taxes, repairs, improvements, insurance and other proper charges are paid, shall then be supplied to the proper care and support of said Sarah Grady during her life. "But in case said John J. Grady shall live industriously, temperately and creditably at any time hereafter for the period of three years continuously, then I do covenant. promise and agree to reconvey to him said Some months after the execution of a con-premises on demand and without any other veyance containing a covenant for reconvey: consideration than that I shall be reimbursance on certain conditions, the grantee executed ed for any balance if any there may be due a paper, indicating that she intended to execute a quitclaim deed to the grantor, to be deposited in escrow and delivered on performance of the conditions on which reconveyance depended. The quitclaim deed was never executed. Held, that the signing of this paper created no different trust than that originally created. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 77; Dec. Dig. § 58.*] 4. ESTOPPEL (§ 25*) - PERSONS TO WHOM AVAILABLE. A grantee, who covenanted to reconvey to the grantor on certain conditions, was not estopped to claim a beneficial interest in the property after the grantor's death, as against a person whose business relations with the grantor commenced after the conveyance, and who knew of the conveyance, and that the title was in the grantee. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 61, 62; Dec. Dig. § 25.*] Appeal from Superior Court, Hartford County; Gardiner Greene, Judge. to me for advances made to him or for the benefit of said estate, but such industrious, temperate and creditable life must have been continuous down to the time of such demand and reconveyance and have continued for at least three years prior thereto. "It is further made a part of this agreement that the covenant, promise and agreement as expressed by this instrument does not extend to heirs, executors, administrators or personal representatives or assigns of said John J. Grady, excepting however that if said John J. Grady shall marry and after his marriage shall demand such reconveyance, I will reconvey said premises to him on demand by him." John J. Grady died in 1911. He did not live industriously, temperately, and creditably after the deed was given for any period of three years continuously. He never mar ried. He never made any demand for a upon demand. There is nothing in the situconveyance to him of the property in ques-ation of the parties to indicate that the tion. The aunt, Sarah Grady, did not sur- intention of the parties was not what the vive him. language naturally imports. The defendant caused the rents, income, [3] A document, signed by the defendant and profits of the premises to be expended some months after the original transaction, in paying the taxes, and for necessary re-indicates that she intended to execute a pairs, improvements, insurance, and other quitclaim deed to John, to be deposited in proper charges on the same; and all sums escrow, so that in case she should die beremaining were applied by the defendant to fore he did, or in case he complied with the the proper care and support of John during conditions of the covenant and demanded a his lifetime. reconveyance before her death, the conveyance might be made to him by the delivery of the deed. Such a quitclaim deed was never executed. The signing of this paper created no different trust than that which was originally created. It is consistent therewith, and indicates at most an intention on the part of the defendant that John should have the property in case he survived her-a case not provided for in the beginning. [2] The plaintiff claims that, the trusts which were created by the deed and declaration having ceased, the land reverts to John's estate, or to his devisee. When the conveyance is voluntary, and the trust fails or has been fully performed, a trust will result to the donor or his heirs, unless it appears from the whole instrument that it was intended that the donee should take a beneficial interest in the estate. Where it thus appears, he will take the estate discharged of all burdens. 1 Perry on Trusts (5th Ed.) § 159. The superior court held that it was the intention that the defendant should take a beneficial interest in the property deeded to her; and that John alone was entitled to a reconveyance, and he only in case he performed the conditions precedent thereto which are provided for in the declaration of trust. These, the court has found, were not performed. [4] The plaintiff's business relations with John began two years after the conveyance of the property to the defendant. There was nothing in the fact that the latter permitted her to collect the rents and turn them over to John which estops the defendant, as against her, to now claim a beneficial interest in the land. The plaintiff had full knowledge that the title was in the defendant, and of the declaration of trust. There is no error. The other judges concurred. BRODNER v. SWIRSKY. (Supreme Court of Errors of Connecticut. July 26, 1912.) LEASE-TERM. - PAROL It seems clear from the instruments themselves, read without reference to the situation and circumstances surrounding the parties at the time, that the intention was that the defendant should have the property upon the death of John and of his aunt Sarah, if she survived him, if he did not comply with at least one of the conditions, and make a demand that it be reconveyed 1. FRAUDS, STATUTE OF (8 44*) to him. The clause declaring that the coveWhere a tenant held under a written lease nants contained in the instrument do not for five years, which expired November 1, 1911, extend to the heirs, executors, or personal a parol lease for a year from the date of the representatives of John indicates this quite expiration of the existing one, made on the day of May, 1911, was for more than a clearly. This can only refer to the cove-year, and was void under the statute of frauds. nants as to a reconveyance; and its purpose [Ed. Note.-For other cases, see Frauds, evidently was to indicate that the defendant Statute of, Cent. Dig. §§ 66, 92; Dec. Dig. § 44.*] was to retain the property, unless conveyed to John in accordance with the covenant. 2. FRAUDS, STATUTE OF (§ 123*)—ENTRY UNDER VOID LEASE-EFFECT. Entry under a lease, void under the statute of frauds, does not create a tenancy by lease, but may be a tenancy implied by law. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 272-274; Dec. Dig. § 123.*] 3. FRAUDS, STATUTE OF (§ 119*)-LEASE-RECOVERY OF POSSESSION. A parol lease void under the statute of frauds, is no defense to a summary process proceeding to recover possession. The circumstances and conditions existing at the time of the transaction show that is the reasonable construction to be put upon the language used. John was unmarried and shiftless-a drunkard. The defendant was one of two sisters, who would be his heirs at law, were he to die under the then existing conditions. In the absence of a will, his estate would go to them. The effect of the instruments was such that, if he persisted in his bad habits and did not marry, the property at his death would belong to one of his two heirs at law, his elder sister. During his life he was relieved of its care, and had the income from it; if he reformed or married, he could recall the property [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 113, 266, 270; Dec. Dig. § 119.*] 4. JUSTICES OF THE PEACE ( 144*)—WRITS OF ERROR-RIGHT TO ISSUANCE. Gen. St. 1902, § 817, permitting writs of error from justices of the peace by either day of 1912." party harmed by an erroneous judgment, au- | effect, and does not expire until the To this defense there was a demurrer, substantially upon the ground that the lease attempted to be set up in avoidance was in violation of the statute of frauds, because not to be performed within one year from the making thereof. The demurrer was overruled, the plaintiff filed a reply, and, upon a trial to a jury in the justice court, the defendant had a verdict. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 478; Dec. Dig. § 144.*] Error to Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge. The court of common pleas treated the deSummary process proceeding by Kaufman murrer to the writ of error as equivalent to Brodner against Isaac Swirsky. A justice's a plea of nothing erroneous and rendered judgment was rendered in favor of defend- judgment for the plaintiff in error, upon the ant, from which plaintiff brought error to ground that the demurrer to the second dethe court of common pleas, where a demur-fense was improperly overruled. As the rer was overruled and a judgment rendered, same question which was thus decided is reversing the judgment of the justice, and defendant brings error. Affirmed. Robert C. Stoddard, of New Haven, for plaintiff in error. Charles S. Hamilton, for defendant in error. THAYER, J. The complaint in summa ry process alleged these facts: The defendant entered into the possession of the leased premises on the 1st day of November, 1906, under a written lease for the term of raised in all the other assignments of error which have been argued before us, it will not be necessary to consider each of those arguments separately. [1-3] As the parol lease set up in the answer was not to be performed within one year from the making thereof, it was void If the defendant entered under this void lease, as contravening the statute of frauds. his tenancy is not one created by the lease; but it may be one which the law will imply. Corbett v. Cochrane, 67 Conn. 570, 577, 35 five years from that date from the estate of Atl. 509; Griswold v. Branford, 80 Conn. one Smith, deceased. In April, 1911, the widow and heirs of Smith conveyed the 453, 455, 68 Atl. 987. In such case, whether he can hold against the plaintiff is not deterpremises to the plaintiff, and the lease was mined by the parol lease. The facts may be duly assigned to him. On the 4th day of such that the law will imply a tenancy for October, 1911, the plaintiff gave the defenda year. But that is a different thing from ant the statutory notice that he was to quit the tenancy which he alleges by virtue of a possession of the premises on or before November 1, 1911. On November 1, 1911, the parol lease. Had facts showing such a tenlease expired by lapse of time; but the de-ancy been alleged, quite likely the answer fendant neglected to quit possession of the premises, and continued to hold possession of the same until the complaint was issued on November 13, 1911. dence of the parol agreement might have would have withstood a demurrer, and evibeen admissible in support of those facts. The defense filed shows only a possession under a void lease, which is no defense to the summary process proceeding. The court of common pleas correctly held that there was error in overruling the demurrer thereto. These facts were, for the most part, admitted by the first defense, and those not so admitted were, upon the trial, admitted or proved, as appears by the bill of exceptions. A second defense read as follows: "(1) On or about the day of May, 1911, the plaintiff leased to the defendant for the term of one year, commencing with the date of the expiration of the lease referred to in paragraph 1 of the plaintiff's complaint, the premises referred to in the plaintiff's complaint for the monthly rent of $70. (2) The defendant, who was in possession of said premises at the date of the expiration of said lease above referred to, continued in possession of said premises under said oral lease referred to in paragraph 1 of this defense, and has remained in possession thereof from that time until the present, under and by virtue of said lease. (3) The defendant is now occupying said premises by virtue of his right under said lease for one year, and said lease is now in full force and [4] A motion was made by the defendant to dismiss the writ of error, upon the ground that a plaintiff in summary process has no right to sue out a writ of error from an erroneous judgment of a justice of the peace in such cases. Section 1087 of the General Statutes, as amended by chapter 104 of the Public Acts of 1907, provides that when a defendant procures a writ of error in an action of summary process he shall give a sufficient bond to the adverse party to answer for all rents that may accrue during the pendency of the writ of error; that he shall have 48 hours (Sundays not included) after judgment for filing his bill of exceptions and procuring a writ of error; and that execution shall be stayed during that time, if it appears to the justice that the writ is not procured for delay. This stat ute makes no reference to a writ of error by common council of the city had passed a the plaintiff. This act was originally passed in 1852. The summary process statute had then been long in existence. So, also, had a statute, now General Statutes, § 817, permitting writs of error from justices of the peace by either party harmed by an erroneous judgment. Under the statute last named, writs of error had been allowed in summary process actions. See Du Bouchet v. Wharton, 12 Conn. 533. The right of a plaintiff to a writ of error under this statute is not affected by the one first referred to, relating to the rights of the defendant. That statute, by staying execution for 48 hours, prevents the defendant's dispossession until he has time to have a bill of exceptions allow ed and procure a writ of error. After the writ has been served, it effects a stay during its pendency. There is nothing in this act that necessarily conflicts with section 817. Whether the defendant, if he fails to procure his writ of error within the 48 hours, may not procure it later, and within the three years allowed in other cases, it is not necessary for us to decide. It can not have been the intention by this statute to deprive the plaintiff of his previously existing right to a writ of error in this class of cases in which no appeal is allowed. There is no error. The other Judges concurred. HAMLIN v. McCORMICK. vote, ordering that curbs should be erected on said streets whenever the street board should so order. About a month prior to the conveyance to the plaintiff, the street board had ordered the construction of such curbs, and given the defendant notice to construct those to be erected in front of the property here in question. She had not constructed them prior to the conveyance to the plaintiff. The latter did not record her deed for nearly two months after she became owner of the property, and about a month subsequent to the conveyance a second notice was given to the defendant to construct the curbs. A month later, the curbs not having been constructed, the street board caused them to be constructed by a third party. Within three months thereafter, the plaintiff paid the cost of constructing the curbs to remove a lien therefor from the premises. The only question raised by the appeal is whether the land was subject to the lien at the time the conveyance was made. The street board, in constructing the curbs, apparently proceeded under section 107 of the city ordinances, which provides that whenever the owner of any land fronting upon a street or highway shall neglect to make or pave any sidewalk or gutter within the time ordered by the common council, or shall neglect or refuse to keep his sidewalk in good repair, it shall be the duty of the board of street commissioners to make or repair the same, "and the cost of making, or of repairs, and interest thereon, shall be and (Supreme Court of Errors of Connecticut. remain a lien in favor of the city upon the July 26, 1912.) MUNICIPAL CORPORATIONS (§ 281*)-STREET IMPROVEMENTS-LIEN. Under Hartford City Ordinances, § 107, providing that, whenever the owner of land abutting a street shall neglect to make a gutter within the time ordered by the common council, the city may make the same at his expense and have a lien therefor upon the property, a lien does not exist until the owner has failed in his duty, and the city has constructed the gutter, and the cost has been ascertained. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 745-749; Dec. Dig. § 281.*] adjoining premises which are liable to be assessed therefor, but a certificate thereof shall be recorded as is provided in case of assessments for betterments in section 119 of the city charter." Section 119 of the charter relates to the manner of giving notice of, and filing liens for, benefits which have been assessed for public works laid out or completed pursuant to other sections of the charter, and provides that the assessment for such benefits shall not remain a lien upon the property chargeable therefor for a longer period than three Appeal from City Court of Hartford; Her- months from the final lay-out or complebert S. Bullard, Judge. Action by Annie J. Hamlin against Mary V. McCormick. From the judgment, plaintiff appeals. No error. James B. Henry, of Hartford, for appellant. Henry J. Calnen, of Hartford, for appellee. THAYER, J. The defendant deeded to the plaintiff a parcel of land on Kent and Norfolk streets, in the city of Hartford, by a warranty deed containing the usual cove nants against incumbrances. Two and a half years prior to this conveyance, the court of tion, unless the street commissioners shall, within that time, lodge a certificate of lien with the town clerk of Hartford. The ordinance does not relate to liens for benefits assessed for public works laid out and constructed by the city, but to liens for the expense incurred by the city in making or repairing sidewalks or gutters which it was the duty of the proprietor of the adjoining land to make or repair, which duty he has neglected to perform. Until he has failed in his duty, and the city has constructed or repaired the sidewalk, and the cost has been thus ascertained, there can be no lien. By the ordinance the cost of making the repair, and interest thereon, becomes and remains a lien upon the adjoining premises; but to continue the lien beyond three months from the completion of the work a certificate must be filed, as provided in the case of assessments of benefits for public works under section 119 of the charter. There is nothing in the finding indicating that the city ever undertook the construction of the curbs in question as a public work, or made any assessment of benefits accruing, or to accrue, therefrom upon the persons to be benefited thereby. The claimed lien was for the cost of construction, as provided in section 107 of the ordinances. The city court was correct, therefore, in ruling that no lien for the cost of constructing the curbs existed at the time of the conveyance of the land to the plaintiff. There is no error. curred. tion of the special damages claimed, that the lessee's goods were damaged from being negligently placed in a show window which he knew to be in a leaky condition. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 664-667, 681-684; Dec. Dig. § 169.*] 6. LANDLORD AND TENANT (§ 154*)—CoveNANT TO REPAIR-BREACH-DAMAGES. Where a lessor breaches an express covenant to repair, he is liable for at least nominal damages. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 558-566; Dec. Dig. § 154.*] 7. LANDLORD AND TENANT (§ 166*) — COVE NANT TO REPAIR-LIABILITY. Where a lessor, who is under a covenant to repair, assures his lessee that the leaky roof of a show window has been put in proper repair, and the lessee, on such assurance, puts his goods in the window, and they are damaged, the lessor is liable. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 647-655, 657-660; The other Judges con- Dec. Dig. § 166.*] RUMBERG v. CUTLER. (Supreme Court of Errors of Connecticut. July 26, 1912.) 1. LANDLORD AND TENANT (§ 150*)-REPAIRS -COVENANT. A landlord is not required to repair the leased premises, unless he covenants so to do, [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 536, 538, 544-548, 555, 556; Dec. Dig. § 150.*] 2. LANDLORD AND TENANT (8 152*)-COVENANT TO REPAIR-LIABILITY FOR BREACH. Under a lessor's covenant to repair when his attention was called "to any part of the premises that are in need of repair," he could not be held for failure to repair until after notice from the lessee of the particular defect and a reasonable time to repair it. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 152, 538-543, 545549, 551-557; Dec. Dig. § 152.*] 3. LANDLORD AND TENANT (§ 169*) — CovENANT TO REPAIR-INSTRUCTION. Where, in a lessee's action for damage to his goods from the lessor's failure to repair, it appeared that the obligation to repair depended upon notice being given by the lessee, it was error to charge that, if the lessor had actual knowledge of the defect it would make no difference whether the lessee notified him. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $$ 644-646, 664-667, 681-684; Dec. Dig. § 169.*] 4. LANDLORD AND TENANT (§ 166*) — COVENANT TO REPAIR-DAMAGES. A lessee cannot recover against his lessor, on breach of lessor's covenant to repair, for injury to his goods from his own negligence in placing them in a show window which he knows to be in a leaky condition. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 647-655, 657-660; Dec. Dig. § 166.*] 5. LANDLORD AND TENANT (§ 169*)-COVENANT TO REPAIR ACTION FOR BREACHBURDEN OF PROOF. In a lessee's action for damage to his goods from the lessor's failure to repair, the burden was on the lessor to prove, in reduc 8. TRIAL (§ 252*)-INSTRUCTION—EVIDENCE. Where the evidence as to the amount of damages suffered was slight, though the case was one admitting of clear proof, the defendant was entitled to an adequate charge upon the measure of damages. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 9. DAMAGES (§ 188*)-BURDEN OF PROOFNOMINAL DAMAGES. Where it is within the plaintiff's power to prove the amount of his damages with reasonable probability, he cannot recover compensatory damages, unless he produces such proof and does not leave the jury to speculation; and without such proof a verdict in his favor can only be for nominal damages. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.*] 10. WITNESSES (§ 406*) - CONTRADICTION EVIDENCE. Where, in a lessee's action for damage to his goods from the lessor's failure to repair, evidence that plaintiff's "wife had made purchases" from a New York dealer in jobs was properly excluded, when offered to contradict her testimony that her "husband purchased" his goods from first-class houses in New York. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. 8 406.*] Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge. Action by Abraham Rumberg against Jacob E. Cutler. From a judgment for plaintiff, defendant appeals. Error. Benjamin Slade, of New Haven, and Spotswood D. Bowers, of Bridgeport, for appellant. Robert C. Stoddard, of New Haven, for appellee. THAYER, J. The plaintiff leased a store of the defendant. He claimed that during his term, owing to the defective and leaky condition of the show window where he displayed his goods, and the roof over it, his goods were wetted, stained, and damaged. The defendant, by a covenant in the written lease under which the plaintiff held his term, undertook to keep the premises in |