ordered." Brady v. Brady, 82 Conn. 424, 74 | fendant had no intention of charging the Atl. 684. It is quite evident from this lan- plaintiff with the expenditures made by guage, and from the record of the former him." Under this understanding, the deappeal, that we did not then, nor did the fendant, for a period of more than ten years, superior court in rendering the interlocu- made no claim that his wife should pay tory judgment that there be an accounting, any part of the cost of constructing the assume to decide the question of whether the building, and no part was paid by her. To defendant was entitled to the claimed credit. permit the defendant to collect the entire The finding of facts in that appeal did not rent of the building and appropriate it until state nor assume to state all the equities the cost of construction was fully paid, withbearing upon that question. There was out contributing to her support in the mean. wanting in that case, among other facts, the time, would not accord with the understandimportant ones, affecting the equities be- ing and action of the parties. But the detween the parties, of their intention and fendant argues that such original intention understanding as to the repayment to the and understanding should no longer be condefendant of the cost incurred by him in sidered because the husband and wife have the construction of the building, as to who lived apart since November 12, 1905. But was to receive the income from it, and the the plaintiff is still the defendant's wife. It benefit of the building, and the fact that does not appear that the separation was though receiving all the rents of the building caused by her fault, or that she is not in since November 1905, when the parties need of support from this property, or that separated, the defendant has failed to con- he is not still as liable for her support as tribute to the support of his wife since that before the separation. We discover in the date. record no sufficient reason for holding that the account as made up by the committee was unjust or inequitable, or that the judg ment of the superior court was erroneous. [1] After the committee had made its report, the superior court, from whose action the present appeal is taken, had before it the material facts necessary to enable it to determine, had it been asked to do so, whether the account as made up by the committee was settled upon an equitable basis, and to correct it, if it was not, at least to the extent of deciding, that the claimed credit of half the cost of the building, or a certain part thereof, should be allowed, without rejecting the entire report, or recommitting it for another trial, as the defendant requested. Patterson v. Kellogg, 53 Conn. 38, 40, 22 Atl. 1096. But assuming that the action of the superior court in overruling the defendant's remonstrance and motion, and in rendering the final judgment, was based upon its conclusion that the account as made up by the committee was as a matter of law just and equitable, do the facts found show that such conclusion was erroneous? The plaintiff has ever since 1893 held the legal title to an undivided one-half interest in the land, and since 1894 has held the same title to the building which was then erected upon the land, and became a part of it. We have no occasion to discuss the rulings made by the committee during the trial, as the defendant's objections to them were not pursued in the remonstrance or elsewhere. There is no error. The other Judges concur. CABLES et ux. v. BRISTOL WATER CO. (Supreme Court of Errors of Connecticut. Nov. 1, 1912.) 1. NEW TRIAL (§ 6*)—APPEAL AND ERROR (§ 977*)-DISCRETION OF TRIAL COURT. The supervision which a trial judge has over a verdict is an essential part of the jury system and involves the exercise of discretion by the trial judge, which will not be reviewed in the absence of clear abuse. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 9, 10; Dec. Dig. § 6;* Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. į 977.*] 2. APPEAL AND ERROR (§ 933*)-DISCRETION OF TRIAL COURT. [2] When the defendant erected the build-abused its discretion in setting aside a verdict, In determining whether the trial court ing upon the land owned by himself and his every reasonable presumption should be indulgwife in common, he must be presumed to ed in favor of its action. have intended, in the absence of evidence to the contrary, that she should have the legal title to a one-half interest in the building which was a part of that land. [3] Again, there was no agreement or understanding that defendant should receive all the rents from the building until he should be reimbursed for the cost of construction, or that his wife should in any manner pay to him one-half of such cost. On the contrary, it is found "that both intended that said building should be for the joint benefit of both," and that "the de [Ed. Note.-For other cases, see Anneal and Error, Cent. Dig. §§ 3425, 3426, 3772-3776; Dec. Dig. § 933.*] 3. NEW TRIAL (8 76*)-APPEAL AND ERROS (§ 979*)-GROUNDS-EXCESSIVE VERDICT. In determining whether a verdict should be set aside as excessive, the trial court has a large discretion; and its action will not be disturbed, unless such discretion is unreasonably exercised. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76: Appeal and Error, Cent. Dig. §§ 3871-3873; Dec. Dig. § 979.*] Wheeler, J., dissenting. Appeal from Superior Court, Hartford | 39 Atl. 797; Chatfield v. Bunnell, 69 Conn. County; Joel H. Reed, Judge. 511, 521, 37 Atl. 1074. Action by Cecil H. Cables and wife against the Bristol Water Company. From an order setting aside a verdict for plaintiffs as excessive, plaintiffs appeal. Affirmed. Theodore M. Maltbie and William M. bie, both of Hartford, for appellants. E. Pierce, of Hartford, for appellee. [3] Where the question passed upon is one as to whether or not a verdict should be set aside as excessive, "a large discretion is of necessity vested in the trial court; and Malt-only in cases where that discretion is unreasonably exercised ought the action of the Noble trial court to be set aside." Gray v. Fanning, 73 Conn. 115, 117, 46 Atl. 831; Case v. Connecticut Co., 85 Conn. 711, 83 Atl. 1020. This record does not disclose an unreasonable use of the judicial discretion. There is no error. PRENTICE, J. Upon this appeal we are called upon to review the action of the trial judge in setting aside a verdict as being excessive, and not the action of the jury in rendering the verdict, save as such review is necessarily incidental to a determination of the propriety of the judge's action. Loomis v. Perkins, 70 Conn. 444, 446, 39 Atl. 797; McKone v. Schott, 82 Conn. 70, 71, 72 Atl. 570. [1] The supervision which a presiding judge has over a verdict which may be rendered is an essential part of the jury system. Burr v. Harty, 75 Conn. 127, 129, 52 Atl. 724; Howe v. Raymond, 74 Conn. 68, 71. 49 Atl. 854; Fell v. Hancock, 76 Conn. 494, 496, 57 Atl. 175. "It tends to make jurors more careful in reaching their conclusions, and gives confidence to all suitors that the findings of juries will not be affected by any improper motives. "Trial by jury," in the primary and usual sense of the term at the common law and in the American Constitutions, is not merely a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict, but it is a trial by a jury of 12 men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and, except on an acquittal of a criminal charge, to set aside their verdict, if in his opinion it is against the law or the evidence.' Capital Traction Co. v. Hof, 174 U. S. 1, 13, 19 Sup. Ct. 580, 43 L. Ed. 873." Howe v. Raymond, 74 Conn. 68, 71, 49 Atl. 854, 855. This judicial supervision involves the exercise of a legal discretion; and action by the court in its exercise will not be reviewed by this court, unless it clearly appears that the discretion has been abused. Burr v. Harty, 75 Conn. 127, 129, 52 Atl. 724; Loomis v. Perkins, 70 Conn. 444, 447, 39 Atl. 797; Chatfield v. Bunnell, 69 Conn. 511, 521, 37 Atl. 1074. [2] In determining whether there has been such an abuse, "great weight is due to the action of the trial court; and every reasonable presumption should be given in favor of its correctness." Fell v. Hancock Mutual Life Ins. Co., 76 Conn. 494, 496, 57 Atl. 175; McKone v. Schott, 82 Conn. 70, 71, 72 Atl. 570; Loomis v. Perkins, 70 Conn. 444, 446, WHEELER, J. (dissenting). The issues before the jury were whether the defendant had appropriated one large brook running through plaintiffs' milk and fruit farm, and had seriously polluted the waters of this brook for four years, and those of another large brook running through the farm for eight years, and what damages the plaintiffs had suffered in consequence. The trial judge set aside the verdict solely because excessive. It must be conceded upon the evidence that the jury might have found that the plaintiffs suffered substantial damage. The jury were instructed to find the actual damages, which they might measure by the injury to the rental value.. The damages, on the evidence, were dependent upon the loss in rental value. The plaintiff's offered evidence, which was uncontradicted, of the gross and net income from the farm, and some six, apparently disinterested, witnesses testified in behalf of the plaintiffs as to the value of the farm and its rental value before and after the acts complained of, and as to the diminution in value and rental value of the farm caused by these acts. The judgment of these witnesses rested upon adequate personal knowledge and apparent careful investigation, and was supported by good reason. It was neither unreasonable nor improbable in character. The witnesses were, so far as the record shows, entirely credible. In some instances they were men who now hold or had held public positions of prominence. On the part of the defendant, three witnesses testified as to the value of the farm from an examination made during the trial, but made no estimate of its value before the acts complained of; and only one of these testified as to the rental value of the farm. Between this conflict of evidence as to damage, the judge left its determination to the jury. If the jury credited the testimony of the plaintiffs' witnesses as to damages, they must have rendered as large a verdict as they did. On the verdict being reported, the trial judge did not return them to its further consideration. In setting aside the verdict, he My Steinert v. Whitcomb, 84 Conn. 262, 263, 79 The memorandum of the trial judge in setting aside the verdict indicates that the judge exercised his discretion under a misapprehension of the evidence. A long and expensive trial has come to naught. The state, as well as the litigant, is the loser. This result is to be deplored and should be avoided, unless the case be such that the trial judge, acting within his legal discretion, ought to set aside the verdict. In my opinion, there was manifest error in setting aside the verdict. did not set it aside conditionally. Plaintiff leased certain premises to defendand on June 16, 1911, plaintiff's agent wrote ant under a lease which expired May 1, 1912, defendants, stating that at a meeting of the executive committee of the trustees of plaintiff In this case the controverted issue of dam- corporation "it was voted to grant you, if you so desire, a lease of the premises now occuage rested upon the credit to be attached to pied by you for three years after the expiration variant testimony, in a case where the con- of your present lease. * ** If you desire clusion of the jury could not be held unrea- a five years lease they will be willing to grant sonable or partial-indeed, where the pre-conditions as present lease," to which defend* both under same two additional years ponderance of the evidence pointed to the correctness of their conclusion. "It is true that the jury is a tribunal which is regarded by the law as one especially fitted to decide controverted questions of fact upon evidence. The jury decides how much credibility is to be given to each witness, what weight justly belongs to the evidence, and, between the statements of hostile and contradictory witnesses, where the truth is; and if the verdict to which they have agreed is a conclusion to which 12 honest men, acting fairly and intelligently, might come, then their verdict is final and cannot be disturbed. In such a case, if the trial judge should set aside their verdict, he would be himself in error. He would pass the true bounds of his own function and invade the province of the jury. It is only when the verdict is manifestly and palpably against the evidence in the case so much as to indicate that the jury was swayed by passion, by ignorance, partiality or corruption-that it should be set aside on that ground and a new trial granted." Howe v. Raymond, 74 Conn. 68, 71, 49 Atl. 854, 855. ants replied, requesting plaintiff's agents to "please to have a new lease made as per your letter of June 16th for three years, and the two year renewal clause at the prices mentioned," and stating that defendants would be in on the same day to sign the lease. Held, that such equitable rights as defendants acquired under such instruments did not constitute "title" in defendants, as that word was used in Gen. St. 1902, § 1081, providing that in ac tions of summary process, if it be found that defendant is plaintiff's lessee and holds over defendant does not show a title in himself, after the termination of his lease, etc., and judgment should be rendered for plaintiff, so that defendants could not rely on such instru ments as a defense to summary proceedings. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 1272-1275, 1283; Dec. Dig. § 296.* For other definitions, see Words and Phrases, vol. 8, pp. 6979-6982.] 2. LANDLORD AND TENANT (§ 88*)—LEASE— OFFER AND ACCEPTANCE. tiff's agent offering to renew the lease, when The letter written to defendants by plaintaken with defendant's answer, did not constitute a lease, but merely an offer. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 279-281; Dec. Dig. § 88.*] 3. LANDLORD AND TENANT (§ 86*)—LEASE— ACCEPTANCE. Defendant's letter, in answer to the letter of plaintiff's lessee offering to extend the lease, did not constitute an acceptance of either of the propositions submitted in the offer. "On every appeal of this character, the controlling question is whether the conclusion is one which the jury might reasonably have reached-one to which 12 honest men, acting fairly and intelligently, might reasonably have come. If it is, the verdict should stand; if it is not, it should be set aside." [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. § 86.*] Error from City Court of Hartford; Her- Please to have the new lease made as per your bert S. Bullard, Judge. HALL, C. J. In using the words plaintiff and defendants in this opinion we refer to the parties to the action of summary process. The complaint in summary process alleges that on July 22, 1907, the plaintiff leased to the defendants' assignor the Farmington Avenue Hotel property in Hartford for the term of three years from May 1, 1909, for the annual rent of $1,600; that the lease expired May 1, 1912; that due notice to quit was given on April 23, 1912; and that the defendants continued to hold possession after the expiration of said lease, and of the time limited in the notice. The first defense of the answer, after admitting the allegations of the complaint, alleges, in substance, that, "after the giving of said lease, a new and separate right and title in and to the premises accrued to the defendants" by reason of the offer made by the plaintiff and accepted by the defendants, shown by the writings, Exhibits A and B, attached to the answer, and that under the title accruing by them the defendants entered into possession of the premises on May 1, 1912, and thereafter tendered the rent for each month as it fell due. The second defense further alleges that by Exhibits A and B the plaintiff on June 16, 1911, voted to lease the premises to the defendants for three years at $1,800 per annum, and to grant two additional years at $2,000 per annum, and submitted it to the defendants, and that on April 4, 1912, they accepted said lease. letter of June 16th for three years and the two-year renewal clause at the prices mentioned. Mr. Giering and myself will be in between the hours of 10 and 11 a. m. Saturday to sign same. Yours respectfully, Bentley & Giering, per T. S. Bentley." To this answer the plaintiff demurred, in substance, upon these three grounds: (1) That the writings Exhibits A and B did not create a title in the defendants or constitute a lease; (2) that Exhibit B did not contain an acceptance of the offer made by Exhibit A; and (3) that the alleged acceptance was not made within a reasonable time. The city court sustained the demurrer, and rendered judgment for the plaintiff, stating, in effect, in its memorandum of decision that it sustained the first two grounds of demurrer above stated, and overruled the third. There was no error in such decision. Section 1081 of the General Statutes provides that in actions of summary process, if it shall be found that the defendant is the lessee of the plaintiff, and holds over after the termination of his lease, and after the expiration of the time specified in the notice to quit, and the defendant does not show a title in himself, judgment shall be rendered for the plaintiff. [1] Such equitable rights, or interest in the premises, as the defendants in the summary process may have acquired, by reason of an agreement between them and the plaintiff in that action, that a further lease should be given them, did not constitute a title in the defendants within the meaning of that word in the statute cited. Even though the facts alleged in the answers show that a court of equity would have granted equitable relief upon the refusal of the plaintiff to give the defendants the lease which it is claimed was agreed should be given, such facts could not avail the defendants in the action of summary process. Actions of summary process can generally be tried only before a justice The following are the material parts of of the peace, either with or without a jury. Exhibits A and B: Exhibit A: "June 16, 1911. Messrs. Bentley & Giering, Proprietors Farmington Avenue Hotel, Hartford, Conn.-Gentlemen: At a meeting of the executive committee of the trustees of the Hartford Theological Seminary held today, it was voted to grant you, if you so desire a lease of the premises now occupied by you for three years after the expiration of your present lease at the annual rent of $1,800. If you desire a five years lease they would be willing to grant two additional years at $2,000 per annum, both under same conditions as present lease. Yours very truly, Security Company, by Atwood Collins, Pres't." Exhibit B: "April 4, 1912. Security Co., Hartford, Conn.-Gentlemen: Enclosed please find check for $134.17 which is the last pay It is not within the province of a justice court to apply equitable remedies. Ludington v. Merrill, 81 Conn. 400, 71 Atl. 504. The question of the right of the defendants to avail themselves of such facts as a defense in the trial of an action of summary process is fully discussed in the recent case of Platt et al. v. Cutler, 75 Conn. 183, 186, 52 Atl. 819. In that case, which was an appeal to this court from the decision in an action of summary process, there was a written lease for one year from January 1, 1901, containing a provision for a renewal for two additional years, if the lessee desired it, and had complied with the conditions of the first lease. The defendant notified the plaintiffs that he desired to renew the lease. The plaintiffs refused to give the renewal, upon the ground that the defendant had failed to what lengthy writing claimed to be the lease and gave the defendant notice to quit on or before January 18, 1902, and upon his refusal brought an action of summary process on the 21st of January, 1902. The trial court rendered judgment for the defendant upon the ground that the plaintiffs had waived the right to claim a forfeiture on account of any breach of the condition of the original lease, and that the lease (manifestly because of the renewal clause) had not terminated by lapse of time on the 18th of January, 1902. In holding that there was error in such judgment, this court said in the opinion by Chief Justice Torrance: "The lease was for the term of one year only, and the year had expired. The agreement for renewal conveyed no right nor interest in the prem-ny for the rent of the above described premises beyond the term. At most, it gave the defendant a right, if he complied with the conditions upon which the right was based, to obtain a lease for two years more, but he did not, in fact, obtain such lease. If we assume, for the purposes of argument, that he was entitled to such a lease, still his request for it was refused. The existence of the agreement on the part of the plaintiffs to give such a lease, the existence of a right on the part of the defendant to have such a lease, and his request for it, and the refusal of the plaintiffs to give it-these facts neither singly nor combined-gave the defendant any right or title in the premises beyond the year 1901, nor any right nor title to the premises in question that could avail him in this action. All these facts, if true, might entitle the defendant to a lease for two years more, but they did not constitute or operate as such a lease, and, unless they had this effect, they were of no avail in this case." In view of the law thus stated, we think it cannot be said in the present case that even a fully completed and valid agreement between the parties, under which the defendants became justly entitled to another lease for three years, or for five years, or for three years with a right of renewal for two additional years, would either constitute a new lease, or would give the defendants any "right" or "title" or "interest" in the premises after May. 1, 1912, which could avail them in the action of summary process. [2] In support of the claim that Exhibits A and B should, upon the alleged facts in the answers, be held to constitute a lease in themselves, the defendants cite the case of Johnson v. Phoenix Mut. Life Ins. Co., 46 Conn. 92. This was an action by the lessor against the lessee to recover rent claimed to be due under an alleged written lease for the term of 10 years. The facts were found by a committee and the judgment was for the plaintiff, and was sustained upon the appeal. In this court, as stated in the opinion, the case turned upon the question of whether the writing received in evidence was a lease or merely an agreement for a lease. ises for ten years from April 1, 1871." This |