nothing passed to the grantee within the limits of the right of way. The same principle of construction which operates to extend the Hart deed to include the eastern half of the four-rod strip operates also to carry the boundary line of the Sanborn deed from the opposite direction up to the center line of that strip, and thus to embrace the western and remaining half of it. This construction of these two deeds establishes that the title to the eastern half of the land in controversy is now in the defendant; that the title to the western half is in some other party than the plaintiff; and that, as a necessary consequence, its action must fail for lack of title in itself shown. Action by Henry D. Miller, trustee, against the Bellamore Armored Car & Equipment Company. Judgment for plaintiff, and defendant appeals. Affirmed. James A. Marr, of Bridgeport, for appellant. Edward K. Nicholson, of Bridge port, for appellee. THAYER, J. [1] This action was brought to foreclose a mortgage purporting to have been given to Harry D. Miller,. trustee, by the Bridgeport Vehicle Company. The action is brought by Miller, as trustee under the will of one Strong, against the Bellamore Armored Car & Equipment Company, who have purchased the property and assumed the debts of the Vehicle Company. The superior court is advised that the deed to Carmi Hart, referred to in question The defendant attempted to counterclaim 2, and that from the plaintiff to George P. for a debt claimed to be due from Miller Sanborn, referred to in question 3, each con- personally to the Vehicle Company. Two of veyed to the respective grantees therein the the assigned errors relate to the court's refee simple of the land over which the rail-fusal to deduct the amount of these claims road company had its right of way up to from the amount due upon the mortgage. the center line thereof, and that the plaintiff The court's action in this respect is so clearis not entitled to the immediate possession of the land described in the complaint. They correct that we do not stop to discuss the other Judges concurred. (86 Conn. 548) MILLER v. BELLAMORE ARMORED CAR & EQUIPMENT CO. (Supreme Court of Errors of Connecticut. March 11, 1913.) question. The personal debt of Miller could not be allowed against the amount owed by the defendant to the trustee of the Strong estate. [2, 3] The mortgage sought to be foreclosed was signed and sealed in the name of the Vehicle Company by Miller, as agent, and the deed recites that he was thereto duly 1. SET-OFF AND COUNTERCLAIM_ (§ 46*)—Ac-authorized. The records of the Vehicle ComTION BY TRUSTEE-PERSONAL DEBTS. pany show that at a meeting of the stockIn an action by a trustee to foreclose a holders of the company more than a year mortgage, a personal debt of the trustee cannot be set up as a counterclaim. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 100, 103-106; Dec. Dig. § 46.*] * prior to the execution of the deed it was voted that Miller "be and he hereby is authorized to sign any agreement or mortgages in connection with the new building, said power to include the power to mortgage the plant and machinery"; but they do not Where the records of a corporation do not show that the board of directors of the comshow that the board of directors authorized a certain agent to execute a mortgage, other evi-pany ever authorized Miller to execute the dence was competent to show such fact as mortgage. against such corporation and its privies. 2. CORPORATIONS (§ 432*) — AUTHORITY OF AGENT-ACTS OF DIRECTORS-RECORDS. The loan secured by the mortgage was advanced for the new building. Testimony was received by the court tending to prove that Miller was authorized by a vote of the board of directors to execute [Ed. Note. For other cases, see Corporations, Cent. Dig. $$ 1717, 1718, 1724, 17261735, 1737, 1743, 1762; Dec. Dig. § 432.*] 3. CORPORATIONS (§ 432*)—MORTGAGES-EXECUTION BY AGENT-AUTHORITY EVIDENCE. the mortgage shortly before it was executed. In an action to foreclose a mortgage on property of a corporation, evidence held to warrant a finding that the agent executing the mortgage was authorized to do so. There was also testimony tending to show that there was no such vote. The records failing to show that such authorization was [Ed. Note. For other cases, see Corpora- given by the board of directors, it was comtions, Cent. Dig. §§ 1717, 1718, 1724, 1726- petent, as against the Vehicle Company and 1735, 1737, 1743, 1762; Dec. Dig. § 432.*] its privies, if they had in fact authorized 4. APPEAL AND ERROR (§ 1011*)-FINDINGS Miller to execute the mortgage, to prove it OF FACT BY TRIAL COURT-CONFLICTING by other evidence. Thompson, Corporations, EVIDENCE. Where there is a conflict in the evidence as to a fact, the Supreme Court cannot change the finding of the trial court thereon. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] Vol. 4, § 5016, vol. 5, § 6175; Hart v. Stone, 30 Conn. 94, 96; Clark v. Pratt, 47 Me. 55, 56; Murray v. Beal, 23 Utah, 548, 65 Pac. 726, 729. [4] From the evidence before the court it has found that the corporation, by Miller, Appeal from Superior Court, Fairfield Coun- its agent, executed and delivered the mortty; Lucien F. Burpee, Judge. gage in question. We cannot, as we are re *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 454) 8 76, and also for constitutional reasons. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 871-875; Dec. Dig. § 290;* Municipal Corporations, Cent. Dig. $8 1084-1093; Dec. Dig. § 455.*] quested to do, say that this finding is wrong, | Waterbury Charter 1895 (12 Sp. Laws, p. and change it to a finding that the directors did not authorize the deed, and that it was never properly executed. The court followed the positive testimony that there was a vote of authorization against that of some of the directors, who had no recollection of such vote. It was a question of fact dependent upon the weight to be given to testimony, where there was conflict in it, and it was for the trial court to determine. The defendant's case turned upon the question whether the mortgage was properly executed. There are numerous other questions raised and requests for changes in the finding; but, as they relate to the matters sought to be raised by the counterclaim, or similar questions sought to be raised by the answer, the changes, if made, would not affect the decision of the case. The court properly refused to make the changes requested. There is no error. The other Judges concurred. (86 Conn. 573) MANNERS v. CITY OF WATERBURY. (Supreme Court of Errors of Connecticut. March 11, 1913.) 4. MUNICIPAL CORPORATIONS (§§ 488, 489*)PUBLIC IMPROVEMENTS - ASSESSMENT BENEFITS-ASSESSMENT BY COURT ON AP PEAL. OF Where a property owner voluntarily appealed to the superior court from an assessment of benefits from a street opening, which termine whether his land was benefited and was void for lack of notice, the court could demake the assessment, since an opportunity to be heard, whether before the original assessing board or on appeal, is all that is required. Corporations, Cent. Dig. §§ 1147-1152; Dec. [Ed. Note.-For other cases, see Municipal Dig. 88 488, 489.*] Appeal from Superior Court, New Haven Action by Thomas R. Manners (Frances L. Waterbury in the nature of an appeal from an assessment of benefits from a street opening. From a judgment annulling the assessment, defendant appeals. New trial ordered. In 1907 the defendant, acting in the manner prescribed by its charter save in the two 1. MUNICIPAL CORPORATIONS (§ 294*)-PUB-respects hereinafter referred to, laid out and LIC IMPROVEMENTS-PRELIMINARY PROCEED- constructed a new street known as Clark INGS-PERSONS ENTITLED TO NOTICE. Under Waterbury Charter 1895 (12 Sp. Laws, p. 454) §§ 75, 76, providing that, when the board of aldermen shall decide to lay out a highway, it shall refer the matter to the department of public works to prepare a survey and lay out the work, after a public hearing and reasonable notice to all owners of land proposed to be taken, or of land affected, that the board may then accept, modify, or reject the report of the department, and, if it decides to proceed with the work, refer the matter to the bureau of assessment to ascertain the damages and benefits, an owner of land not taken or injuriously affected by a street opening, but whose land the bureau of assessments subsequently ascertained to be assessable for benefits, was not entitled to notice of the proceeding before the department of public works. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 776-788, 791; Dec. Dig. § 294.*] 2. CONSTITUTIONAL LAW (§ 290*)-DUE PROCESS OF LAW-PUBLIC IMPROVEMENTS-No street. The original plaintiff, Thomas R. Manners, subsequently deceased, owned certain land in the neighborhood of the street, but none of this land abutted upon it. The bureau of assessment assessed special benefits against said Manners in the amount of $1,385 on account of the improvement. Neither the department of public works nor the bureau of assessment gave to said Manners any notice of the pendency of the proceeding before it, and he was not present at any meeting of either board, was not heard by either concerning the matters pending before it, and had no opportunity to be so heard. Manners brought these proceedings in the nature of an appeal within the time prescribed for the taking of appeals from assessments of benefits. John P. Kellogg and Francis P. Guilfoile, both of Waterbury, for appellant. Charles G. Root, of Waterbury, for appellee. PRENTICE, C. J. (after stating the facts as above). The defendant city complains of the action of the superior court in declaring void an assessment of benefits made by its bureau of assessment for the layout of a new street, within its limits, and refusing to inquire into the propriety of such assess 3. CONSTITUTIONAL LAW (§ 290*)-MUNICI- firming, modifying, or annulling it, or by such other action as might seem to it just An assessment of benefits from a street and equitable. The court based its action opening against a landowner who was not given notice of the proceeding to assess the bene- upon two grounds, and they are urged before fits was void under the express provisions of us as furnishing sufficient reasons to support the judgment rendered. The first is the fail- | juriously affected, it is required to refer the ure of the department of public works to give the original plaintiff landowner, hereinafter referred to, for convenience sake, as the plaintiff, notice of the proceedings before it, and the second, the failure of the bureau of assessment to give him notice of the proceedings before it. [1] The charter of the city provides that whenever the board of aldermen shall have decided to take any land, or lay out any highway, it should refer its order to the department of public works "for the purpose of designating such land and laying out such public work." The prescribed duty of this department is to "prepare a survey, and layout of such land or public work." Special Laws of 1895 (12 Sp. Laws, p. 454) § 75. matter to the bureau of assessment, whose duty it then becomes to ascertain the damages and benefits. Until this stage is reached, the matter has been in no position to have the persons, who, as property owners, are to be made subject to the payment of benefits ascertained. To say that action by the department of public works at a prior and entirely independent stage of the proceedings will be rendered nugatory unless it shall have correctly forecast the views at which the bureau of assessment shall arrive, and notified all whom the bureau shall determine to be proper subjects for benefit assessments, is to make the course of proceeding prescribed by the Legislature a practically unworkable one. [2] The plaintiff, whose land touched the [3] The assessment of benefits made proposed new highway at no point, was not against the plaintiff by the bureau of asentitled to a notice of the proceedings before sessment was wholly ineffective and unenthis agency of the city in the matter of forceable by reason of the want of notice. survey and layout except as some statute or Without notice a valid assessment could the city charter may have prescribed it. He not be laid for constitutional reasons. Neihad no constitutional right to it. Goodrich v. | ther could one be laid by reason of the charter Detroit, 184 U. S. 432, 437, 22 Sup. Ct. 397, 46 provision which expressly makes reasonable L. Ed. 627; Water Commissioners v. John-notice a condition precedent to an assessment son, S6 Conn. 151, 163.1 The charter contain- of benefits. Special Laws 1895, p. 454, § 76. ed the only legislative provision of possible All this the defendant concedes. pertinence. It is there provided that the department of public works shall act in the making of a layout after a public hearing and reasonable notice to all owners of land proposed to be taken or land affected. Special Laws of 1895, p. 454, § 75. The premises of the plaintiff being some distance away from the proposed highway, no land of his would be taken or injured by its layout and construction, so that he might either claim compensation or be influenced to oppose the project as injuriously affecting his property. This is the condition which the charter contemplates as calling for a notice by the department of public works before a layout is determined upon. The word "affected" is not used here in that comprehensive sense which would make it include all property owners who might have the remote and in determinate interest arising from a possibility that they might thereafter be assessed for a special benefit accruing to their property by reason of the public work. Goodrich v. Detroit, 184 U. S. 432, 437, 22 Sup. Ct. 397, 46 L. Ed. 627; Shelton v. Derby, 27 Conn. 414, 421. The former of these two cases forcibly presents the practical reasons forbidding any other conclusion. They are well illustrated in the present case. [4] But it contends that the plaintiff by his seasonable appeal to the superior court, which is given full power to inquire into the situation, and do whatsoever equity may require for the protection of the plaintiff's rights, voluntarily placed himself in a position where the rights and equities of both parties may be protected after the fullest hearing, and had thus put the matter in a situation where the taint of want of notice has been removed and an adjudication can properly be had which will preserve to the plaintiff his constitutional and legislative guaranties and conform to all legal requirements. The plaintiff claims, and the trial court held, that the lack of notice of the proceedings before the bureau of assessment presented an insuperable obstacle in the way of the superior court taking cognizance of the matter and doing what it might deem just and equitable. The defendant asserts that the fact that the assessment made by the bureau was invalid furnished no reason why the court might not inquire whether or not any assessment ought to be made, and if so, in what amount, and enter a judgment upon its conclusion, if favorable to an assessment, which would establish one. The plaintiff's position makes notice by the bureau an esThe charter provides that the functions of sential of the court's jurisdiction; the dethe department of public works shall cease fendant's treats the lack of it as a defect with the making of the survey and layout. in the proceedings of the bureau which may This made, it reports back to the board of be waived or cured, in so far as future action aldermen. This board may accept, modify, is concerned, by voluntary presence in the or reject the report. When it shall have tak- superior court on appeal. The authorities en its action in this regard, and thus decided overwheimingly support the defendant's conto proceed with the work calling for the tak- tention. Some of them, to be sure, have reing of land or compensation for land in-lation to the constitutional requirement of 184 Atl. 736. the place claimed. Cent. Dig. 88 1295, 1297-1305; Dec. Dig. 3. CARRIERS (§ 317*)-EVIDENCE-SYSTEM OR On an issue that one of defendant's street cars did not stop at the point where plaintiff claimed it did, and where he attempted to board it, evidence that it was the uniform custom of defendant's operatives to stop their cars on the opposite side of the street was admissible. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. 317.*] 4. CARRIERS (8 317*) NESS. EVIDENCE REMOTE notice. But the principle certainly cannot | mony of the operatives that it did not stop at be different where the constitutional requirement is supplemented by a statutory one to the same effect. They hold that if a full opportunity to be heard is given before the assessment proceedings are ended, and whether before the original assessing board or body or on appeal, it is sufficient. An appeal is regarded as an entry of appearance, and waiver of notice so that the proceedings may then go forward legally, and a conclusion be reached which will bind the parties. King v. Portland City, 184 U. S. 69, 22 Sup. Ct. 290, 46 L. Ed. 431; Reclamation District v. Evans, 61 Cal. 104, 107; Atchison, T. & S. F. R. R. Co. v. Patch, 28 Kan. 470, 471; State v. Harland, 74 Wis. 11, 13, 41 N. W. 1060; Trester v. Mo. Pac. Ry. Co., 33 Neb. 171, 185, 49 N. W. 1110; Swinney v. Railroad Co., 59 Ind. 205, 219; 2 Elliott on Roads & Streets, § 699; 2 Page & Jones, on Taxation by Assessment, § 773. In Quinebaug Reservoir Co. v. Union, 73 Conn. 294, 299, 47 Atl. 328, an appeal from the doings of a board of relief, practically the same question was presented since the assessors had increased the plaintiff's assessment list without notice. We then held that the plaintiff, by the appeal which it took to the board of relief, waived the lack of notice, and justified further proceedings as prescribed by law for a determination of the amount for which it should be assessed. In the present case both parties were be fore the superior court, and that court was endowed with the amplest authority to do whatever might appear to it to be just and equitable. It should have proceeded to exercise its jurisdiction to determine whether or not the plaintiff was specially benefited and, if so, what assessment therefor should be made. Where defendant claimed that the car on which plaintiff claimed he was injured, as he attempted to board it, did not stop at the point where plaintiff claimed it did, evidence that one of defendant's cars had stopped at the same point a year after the accident was too remote in point of time. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1295, 1297-1305; Dec. Dig. 317.*] 5. CARRIERS (§ 328*)-STREET RAILROADS STOPPING PLACE-RIGHT TO BOARD Car. One proposing to take passage on a street car may board the car at such places as the company may have designated as stopping points, and also at such other points as the railway company may stop its cars on the streets. Cent. Dig. 88 1367-1369; Dec. Dig. § 328.*] A street railway company would only be liable for injury to a person boarding its car by the sudden starting of the car, when it knew at a place other than its regular stopping point, by signal or otherwise of the plaintiff's attempt to board, or ought to have known it from the circumstances of the case, as from the practice of the persons boarding the car when it stopped at that place. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. § 287.*] There is error, and a new trial is ordered. 7. CARRIERS (§ 287*)-STREET RAILROADS-INThe other Judges concurred. One's negligence, on a particular occasion, cannot be proved by showing negligence on another occasion, nor can his freedom from negligence on one occasion be shown by proof of his due care on other occasions. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 239-244; Dec. Dig. § 125.*] 2. CARRIERS (§ 317*)—INJURIES TO PASSENGER -EVIDENCE-RULES. On an issue as to whether defendant's car, on which plaintiff claimed to have been injured, stopped at a particular point where he claimed he attempted to board the same, evidence of defendant's rules, providing that the regular stopping place was on the opposite side of the street from that where plaintiff claimed the car stopped, was admissible in support of the testi JURIES TO PASSENGER-BOARDING CAR. It is the duty of a street railway company to use the highest degree of diligence in affording persons attempting to board its cars a reasonable opportunity to do so, whether the person is boarding the car at a regular stopping point or not, if the car has stopped in response to his signal. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. § 287.*] 8. CARRIERS (§ 287*)-STREET RAILROADS BOARDING MOVING CAR. A street railway company is not liable to a person injured while attempting to board a slowly moving car unless the operatives of the car had knowledge of such attempt and thereafter, through negligent operation, caused the did not materially contribute. injury, to which the passenger's own negligence Cent. Dig. §8 1154-1159, 1161-1166; Dec. Dig. [Ed. Note.-For other cases, see Carriers, § 287.*] 9. CARRIERS (§ 328*)-STREET RAILROADS— BOARDING CAR-RIGHTS OF PASSENGER. A person attempting to board a street car which has come to a stop on a public street, whether on signal or not, is entitled to rely on v. Norwich, 73 Conn. 199, 201, 47 Atl. 161; Gilmore v. Am. T. & S. Co., 79 Conn. 499, 504, 66 Atl. 4. These are instances where an act of negligence or the reverse was sought to be inferred from other acts of negligence [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1367-1369; Dec. Dig. § 328.*] 10. APPEAL AND ERROR (§ 216*)-REVIEW- or nonnegligence. The case at bar differs QUESTIONS NOT RAISED AT TRIAL. An appellant cannot object on appeal that the court failed to charge on a phase of the case not presented to the trial court. [Ed. Note.-For other cases, see Appeal and Error. Dec. Dig. § 216; Trial. Cent. Dig. §§ 627-629, 630-641, 660, 662-676.] Appeal from Superior Court, Hartford County; William H. Williams, Judge. Action by William J. Moffitt against the Connecticut Company. Judgment for defendant, and plaintiff appeals. Affirmed. P. F. McDonough, of New Britain, for appellant. J. F. Berry, of New Haven, for appellee. from these cases, and does not fall within the principle invoked. [2] This is an attempt to corroborate the testimony of the operators of the car that it did not stop at the time and place the plaintiff claimed it did by showing that this place, under the rules of the defendant, was not its regular stopping place, but that that was on the opposite side of the street. The specific question is whether the rules of the defendant railway as to where its cars must stop are admissible in support of the testicar did not stop at the point claimed, but mony of the operators of the car that the at the point named by the rules. der a certain rule which was equally obligatory upon a number of men and important in the prosecution of a quasi public business, as some evidence in support of his contention that he in fact acted under the rule. It would be thought to make more probable his claim. WHEELER, J. The plaintiff claimed he In the ordinary affairs of life in a consignaled the motorman of defendant's north-flict over a matter of fact between two perbound trolley car to stop the car; that the sons, men would regard the fact that one motorman was then looking in his direction, of the persons was in duty bound to act unand thereupon the car stopped about opposite the north corner of Main and East Main streets in New Britain; and, as he was attempting to board the car, it was started suddenly without giving him a reasonable opportunity to board it, causing him to be thrown upon the rear platform and to be injured. The defendant claimed the plaintiff never signaled said car; that it never stopped at the north corner; and that the accident never happened. Upon cross-examination of plaintiff's witnesses, the defendant attempted to show that the point where the plaintiff's witnesses testified the car stopped, viz., on said north corner, was not the regular stopping place for cars, but that the regular stopping place was on the south corner of said streets, at which point there were two white poles indicating the stopping point. The plaintiff objected to this evidence and assigns its admission as a principal ground of error. As here pressed, the objection is that proof of the place of stopping at other times is not admissible as tending to disprove the plaintiff's witnesses that the car did in fact stop at the north corner at the time in question; that negligence of a motorman existing at one time cannot be disproved by proof of careful conduct at other times. An evidential fact which men generally would act upon in the affairs of their life will logically aid in determining a legal issue, and ought to be held legally relevant and of probative value. And this is the test of legal admissibility. Locke v. Kraut, 85 Conn. 489, 83 Atl. 626. [3] If this offer be held in reality to be an attempt to prove the practice of the defendant in stopping its cars in accordance with its rule, it would still be admissible. We should then have a systematic and invariable regularity of conduct upon the part of a large body of operatives; and such a course of conduct would tend to prove the custom of the defendant to stop its cars at the particular point designated by the rules. systematic course of conduct on the part of a body of men operating a railway, acting for a common purpose resulting in a custom in not stopping at a given point, may likewise be shown, since a negative custom may be equally effective in supporting a fact as an affirmative one. Wigmore on Ev. §§ 92, 376, 379. This principle applies to acts negligently done or omitted, not to those willfully done. State v. Railroad, 52 N. H. 549. A The authorities are not uniform; but we think the strong tendency is toward the conclusion we have reached, admitting evidence of a like character, tending to establish a systematic course of conduct ripening into a fixed habit or a definite custom. [1] It is true that one's negligence on a particular occasion cannot be proved by showing his negligence on other occasions; nor can his freedom from negligence on one occasion be shown by proof of his due care on other occasions. Our reports furnish numerous illustrations of the application of this principle. Morris, Adm'r, v. East Haven, 41 Conn. 252, 254; State v. Goetz, 83 Conn. 437, 440, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; Budd, Adm'r v. Meriden El. R. The liberalization of courts in more reCo., 69 Conn. 272, 286, 37 Atl. 683; Tiesler cent times in the application of the rules •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 86 A.-2 |