out the existence of this fact, the vendor was not permitted to do so. To permit the vendor in either case to compete with the vendee within said territory would be in derogation of his or her grant. In the former case the vendor was to quit his practice at a certain day named in the agreement, with no covenant that he would not resume it; and, as we have said, the court there construed the language to mean that the vendor would relinquish his practice to the vendee, and would not compete with him within the limits or range of country over which his practice extended. In this case the vendee was to take full charge of the business on May 1, 1911, at which time, of course, the vendor was to relinquish the same and quit the practice of her profession or calling. The fact that she was to quit her business and cease to conduct it on May 1, 1911, is shown by the provision contained in the contract that after such time the vendee was to treat her customers, who had paid in advance, for the period for which they had so paid, extending beyond May 1, 1911. Moreover, she was to render services thereafter to the vendee. The facts of this case do not materially differ from the facts of the former case. We therefore think the vendor should be held to the same restrictions, and not be permitted to compete with the vendee within the limits of the territory over which her practice had extended. If she were to withhold and retain the consideration for which she had disposed of her practice and good will to the vendee, and at the same time resume her practice and compete therein with such vendee, it would not only be in derogation of her grant, but it would be a fraud upon the vendee. It is contended, however, by the appellant that, should we be disposed to follow the line of decisions distinguishing cases of the sale of the good will of professions from those in the sale of the good will of commercial enterprises, we could not do so in this case, because the business of a chiropodist cannot be regarded as a profession. For the purpose of this decision, it is not necessary for us to determine whether chiropody is a profession. If it be not a profession, it is, as practiced by the appellant in this case, a calling having those features and characteristics which, in the application of the law, distinguish the sale of practice and good will of one engaged in a profession from the sale of the good will of a trade or business of a commercial character, as heretofore explained. The reason assigned in the authorities cited why the principle of law therein laid down should not apply to the sale of good will of a profession applies with equal force to the sale of the practice and good will of the appellant in this case, whether her call ing be considered a profession or not. The court below, in the prayer of the bill, is asked to restrain the defendant from directly or indirectly engaging in the business, etc., in the city of Baltimore. In the bill it is not alleged that her practice extended over the city of Baltimore; it may or may not have been so extensive. The restrictions to be imposed upon the vendor should extend only to the limits of the territory or locality over which her practice had extended. In any event, however, the demurrer to the bill was properly overruled; for the bill alleges that she has solicited, or caused to be solicited, the patronage of certain of the plaintiff's customers, and had also attempted to deprive her of the telephone, to which she was entitled, by a cancellation of the contract with the company therefor, and asks that the defendant, her agents and servants, be enjoined and restrained from impairing the good will of the business of the complainant, and from soliciting or alluring customers from said business, and from interfering with the use of the telephone in the plaintiff's place of business, or with the contract for the rental thereof. The law is well established that, even though she were permitted to resume her business, she would not be permitted to destroy the value of the good will sold to the vendee by alluring and dissuading, either in person or by her servants and agents, her former customers from dealing with the purchaser of the good will, and soliciting them to trade with her, or by attempting to deprive her of the telephone, the number of which was well known to the customers; and, as the bill alleges, a large part of the business depended upon appointments made Cas. 575; Labouchere v. Dawson, L. R. 13 Eq. through it. Notes to Foss v. Roby, 11 Ann. 322, 25 L. T. (N. S.) 894, 20 W. R. 309, 41 L. made to destroy the value of the good will J. Ch. 427. And in her attempt or efforts so so sold by her to the vendee, she should have been enjoined. [3] The demurrer in this case is a general demurrer to the whole bill, and, as the plaintiff is entitled, as we have said, to at least a part of the relief for which she has prayed, even though she may not be entitled to the whole relief, the demurrer was properly overruled. Miller's Equity Procedure, 173; Miller v. Baltimore County Marble Co., 52 Md. 646, and authorities there cited. It follows that the order will be affirmed and cause remanded. The lower court can grant leave to the defendant to file an answer within such time as it may fix. Order affirmed, and cause remanded for further proceedings, the appellant to pay the costs in this court, and the costs below to abide the final result. (85 Conn. 512) VINCENT v. S. ALEXANDER SONS CO. (Supreme Court of Errors of Connecticut. July 19, 1912.) 1. CORPORATIONS (§ 521*)-CONTRACT OF EM PLOYMENT-ACTION-INSTRUCTIONS. In an action upon the common counts for wages and for money expended at the request of a corporation, where the defendant claimed that it did not employ the plaintiff to perform the services or expend the money, but that plaintiff was employed by two stockholders to sell their individual stock, an instruction that, unless the services were performed and the payments made at the request of defendant, it would not be liable, and that the sale of the stock of individual stockholders would not ren der the corporation liable, gave the defendant the benefit of the issue. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2094-2098; Dec. Dig. 8 521.*] 2. APPEAL AND ERROR (§ 193*)-REVIEWPLEADINGS-OBJECTIONS. Where a complaint which, with the bill of particulars, stated a good cause of action was not demurred to, and no motion in arrest after verdict for plaintiff was made, defendant could not complain that the pleadings were insufficient to sustain a recovery. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. § 193.*] 3. APPEAL AND ERROR (§ 719*) — ASSIGN MENTS OF ERROR-NECESSITY. Error, if any, in the charge, not pointed out by assignment, is not reviewable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2968-2982, 3490; Dec. Dig. § 719.*] 4. CORPORATIONS (§ 432*) OFFICERS AND AGENTS-POWER AS TO EMPLOYÉS. The president of a corporation, in charge of its business, will be presumed to have implied authority to engage necessary employés. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 17261735, 1737, 1743, 1762; Dec. Dig. § 432.*] 5. APPEAL AND ERROR (§ 960*)-DISCRETION OF LOWER COURT-BILL OF PARTIculars. Whether the more specific statements called for by the defendant's motion for a bill of particulars should be ordered was a matter within the trial court's discretion, on the exercise of which error cannot be predicated. Appeal from City Court of Meriden; Frank S. Fay, Judge. Action by John E. C. Vincent against the S. Alexander Sons Company. Judgment for plaintiff, and defendant appeals. No error. C. J. Danaher, of Meriden, for appellant. P. T. O'Brien, of Meriden, for appellee. THAYER, J. [1] The plaintiff claimed to recover from the defendant, a corporation engaged in the clothing business, for three weeks' services rendered to the defendant and for $92 for money paid, at their request, to one Cushing. The main controversy between the parties was whether the services were rendered and the payments made, as stated in the bill of particulars, for the defendant; or were made for two of its stockholders, Sidney A. and Gabriel W. Alexander. The defendant claimed that it did not employ the plaintiff to perform the services, nor to pay Cushing the money paid to him, but that the plaintiff and Cushing were employed by the two stockholders named to sell stock belonging to them individually, and that any liability for the services and payments sued for was upon those stockholders. The court in effect instructed the jury that, unless the services were performed and the payments made at the request of the defendant, it would not be liable, and that the sale of the stock of the individual stockholders would not be a proper charge against the corporation. This gave the defendant the benefit of its claim in this respect. [2, 3] The seventh, eighth, ninth, and eleventh assignments of error are that the court erred in permitting a recovery upon the pleadings, in permitting a recovery for advances made for the individual members of the corporation, in permitting a recovery upon the ground of agency, and in permitting a recovery for advances made to Cushing; no services by him being alleged or proven, other than sales of stock for individual members of the corporation. None of these are proper assignments of error, unless it be the seventh, and there is no foundation for that. The complaint, with the bill of particulars, 6. CORPORATIONS (§ 513*)-ACTION FOR COM-states a good cause of action. It was not EMPLOYMENT demurred to, and no motion in arrest of Practice Book 1908, p. 244, § 144, express-judgment after verdict was made. If the ly excepts corporations from the requirement court erroneously permitted the things stated that an act or promise by a principal, if pro- in the other assignments of error, it must ceeding from an agent known to the pleader, shall be so stated. have been through errors in the charge, and advantage of any error so committed should have been pointed out by an assignment, alleging error in the charge. No complaint is made of the charge in the assignments of [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832, 3833, 3834; Dec. Dig. § 960.*] PLEADING PENSATION [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 2017-2027, 2031-2034, 2036-2045; Dec. Dig. § 513.*] 7. TRIAL (8 60*)-RECEPTION OF EVIDENCEORDER. In an action against a corporation on the common counts for wages and for money expended, it was permissible for the court to receive testimony of what the defendant's officers and stockholders presumed to do as its agents before their agency was established. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 141-145; Dec. Dig. § 60.*] error. [4] The tenth assignment complains of the court's refusal to charge in effect that authority to employ the plaintiff could only be conferred by a vote of the directors, expressly authorizing it. The two Alexanders constituted a majority of the directors, and Sid ney A. Alexander was the president of the consequence. The Court: Allow it." The corporation, in charge of its business. The defendant argues that the motion was displaintiff claimed that he was employed by allowed. It is fair to assume from the lanthe corporation to serve it through its presi- guage used that the jury understood that the dent, Sidney A. Alexander, at first by a writ- motion was granted. We so understand ten contract for six months, and, at the ex- from it. However that may be, the motion piration of that term, orally to continue his correctly describes the evidence as of no conservices. This was a small corporation, con- sequence. The defendant, under the circumsisting of three stockholders, all of whom stances of the case, cannot have been harmwere directors (the third stockholder being ed by its admission. an attorney at law), conducting a clothing There is no error. The other Judges conbusiness. The president of such a corpora-curred. tion, in charge of its business, is presumed to have authority to employ the necessary help and do all those things ordinarily done by the agents and managers of such a business. 4 Thompson, Corporations, §§ 4617, 4621; 3 Cook, Corporations, § 716; Ceeder v.1. Loud & Sons Lumber Co., 86 Mich. 541, 544, 49 N. W. 575, 24 Am. St. Rep. 134. The authority may be given by vote of the board of directors; but it may arise from his having assumed and exercised the power under circumstances from which his agency will be implied. It was not error for the court to refuse the instruction requested. [5] Whether the more specific statement called for by the defendants' motion should be ordered was a matter within the court's discretion, and error cannot be predicated upon the court's exercise of that discretion. [6] The remaining exceptions relate to rulings upon questions of evidence. The defendant objected to the plaintiff's evidence tending to show that he and Cushing were employed by the defendant through the agency of Sidney A. Alexander, upon the ground that it was not alleged in the complaint that the employment was through an agent. The admission of this evidence is claimed to be in violation of section 144 of the rules under the Practice Act. Practice Book, p. 244. The rule referred to provides that "an act or promise by a principal (other than a corporation) if proceeding from an agent known to the pleader should be so stated." Corporations always act through agents. They are excepted from the rule requiring that the fact that a contract was made through an agent be stated. [7] The other objections to the testimony of the plaintiff and Cushing related rather to the order than to the relevancy of the testimony. The agency of Alexander to act for the defendant was a fact to be established, in order to make their action binding upon the defendant. But it was permissible, if the court saw fit, to receive testimony of what they presumed to do as such agents before the agency was fully established. (85 Conn. 689) GELFORD v. CITY OF HARTFORD. SENTED FOR REVIEW-PLEADING. A cause of action, not included in the complaint, cannot be relied on upon appeal. Error, Cent. Dig. §§ 1070-1078; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 172.1 2. MUNICIPAL CORPORATIONS (§ 827*) STREETS SEWERS-LIABILITY. Though a municipality by its charter assumed the contractual duty to maintain its sewers, it is liable for an injury received by a traveler only where it has not used reasonable care. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1772-1776; Dec. Dig. § 827.*] 3. APPEAL AND ERROR (8 842*)-INJURIES TO PERSONS ON STREETS-ACTIONS-QUESTIONS OF FACT. Whether a municipal corporation exercisa street is a question of fact; and the trial ed reasonable care in permitting the opening of court's determination on that issue is one of fact, so that, where the evidence is not before the appellate court, and the subsidiary facts termination that reasonable care was exercisfound below are not inconsistent with the deed, the judgment must be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. §. 842.*] Appeal from Superior Court, Hartford County; Gardiner Greene, Judge. Action by Minnie Gelford against the City of Hartford for injuries received from a defect in a sidewalk. From a judgment for defendant, plaintiff appeals. Affirmed. December 24, 1910, between 7 and 8 o'clock in the evening, the plaintiff, while walking upon a flagstone sidewalk of one of the defendant's public streets, stepped into a hole or depression in the line of the walk, and received the injuries which are the subject of her suit. The defendant, acting pursuant to charter authority, has adopted an ordinance, one section of which provides that no person Reher's testimony was clearly irrelevant shall make a connection with a public sewand inadmissible. It was received at first as er, or lay a drain to be so connected, except "introductory." The record shows that later he be licensed by the board of street comthe defendant's counsel made the following missioners as a drain layer. Another section motion: "I move that testimony be stricken of the ordinance forbids any licensed drain out, being irrelevant and immaterial, of no layer making any opening in any public street of the city until he shall have ob- | dence that it had existed any length of time tained from the city engineer a permit so to before the accident. It had no actual notice do. The following section provides that the of its existence until after the plaintiff was city engineer, or his authorized agents, shall hurt. locate and supervise the construction of all sewers and drains from their connection with the main sewer, or curb line, to the plumbing in the structure to be drained. December 19, 1910, a licensed drain layer, well known to the officials of the street department, and known to them to be a careful and competent person for the work in which he was engaged, applied for and received a permit to lay a drain from a new house adjacent to the place of accident to the sewer in the street. The execution of this work involved the removal of a stone in the walk and the digging of a ditch or trench across the line of the walk at that The defendant used reasonable care in the premises to keep the street and walk in a suitable condition for public travel, and did not fail to use such care in respect to either the supervision of the street as the work of laying the drain was in progress, or the inspection of the place in view of a possible subsidence of the fill of the trench, or in not providing barriers or warning lights or signs. Joseph P. Tuttle, of Hartford, for appellant. William Waldo Hyde and Alvan Waldo Hyde, both of Hartford, for appellee. PRENTICE, J. (after stating the facts as above). [1, 2] The plaintiff, in her compoint. December 21st, the work being then plaint, sets up as the defendant's only dein progress, an inspector under the city en- lict its negligent failure to keep the sidegineer inspected it, in so far as the connec-walk of one of its highways in a reasonably tion with the sewer was concerned. On the 23d a section foreman of the street department visited and examined the work. At this time the drain had been laid, and the trench was being filled. The work of refilling was completed the same day, and the dirt was well and carefully filled in up to the level of the sidewalk. The flagstone was not replaced. When the drain layer left that afternoon there was no hole, or other dangerous place there, and no need of a barrier or lights for the protection of users of the walk. No barrier or light was placed there. The hole or depression into which the plaintiff stepped on the evening of the next day was located in the line of the trench. The drain layer did not make it, and there was no direct evidence as to when or how it was made. A light rain began to fall about 2 o'clock on the morning of the 24th and continued with occasional heavy showers until 4 o'clock in the afternoon; the total rainfall being .03 of an inch. Certain witnesses testified that the depression looked as though it had been occasioned by the rain causing the earth to settle. The trench was refilled in a proper manner, and made safe for travelers over the walk, before the accident to the plaintiff occurred. It was impracticable to refill it in such a manner that there would not be some settlement of earth. This would be true at whatever season of the year it should be dug and refilled. Rain might increase the tendency to settle, but the extent of such settlement, if any should occur, or the time when it would occur, could not be estimated by the officials of the city; nor could they assume that a settlement was likely to immediately occur, notwithstanding the fact that it was December, and that there was a rainfall on December 24th. The defendant had no actual notice of the depression into which safe condition for public travel. It is claimed before us that upon the facts shown she was entitled to recover, not only by reason of such a failure, but upon the ground of a violation by the defendant of a duty, not governmental, but resting upon a contractual obligation, in connection with the construction and maintenance of sewers, assumed by it by virtue of the acceptance of its charter. A sufficient answer to this claim is to be found in the fact that the complaint contains no suggestion of such a cause of action. Beyond this, if the city had assumed the contractual duty contended for, nothing of importance to the present case would, under the facts here, be added to the situation presented. The rule of duty and measure of liability in such case are no different from those which the statute attaches to the performance of the governmental duty of caring for highways, to wit, that of using reasonable care. Jones v. New Haven, 34 Conn. 1, 14; Dyer v. Danbury, 85 Conn. 128, 131, 81 Atl. 958. If, in the present case, there was a lack of such care, contributing to the plaintiff's injuries, it found its expression in an unsafe highway. It was as a traveler thereon that she was injured, and her injuries were occasioned by the condition of the highway, and by nothing else. If this condition was one which resulted from the defendant's negligence, and thus justified any action at all, it was one which would justify an action under the statute. General Statutes, § 2020. We may therefore confine ourselves to a consideration of the question of the defendant's liability as for a defective highway. [3] It is apparent from a reading of the record that the court below applied the true rule of duty, with its incidents of supervision and inspection. In measuring the defendant's conduct in the premises by the standard thus rightfully set up, the court conclusion that reasonable care was exercis- | death of plaintiff's decedent, alleged to have ed was one of fact. Farrell v. Waterbury been caused by defendant's negligence. From Horse R. Co., 60 Conn. 239, 250, 21 Atl. 675, the denial of a motion by defendant to set 22 Atl. 544. The evidence upon which this aside a verdict for plaintiff for $3,000, deconclusion was reached is not before us; the fendant appeals. Affirmed. subordinate facts found by the court are. An examination of them fails to disclose that they are inconsistent with the ultimate conclusion reached, that the defendant was free from negligence. There is no error. The other Judges concurred. (85 Conn. 607) ALLEN v. J. W. BISHOP CO. (Supreme Court of Errors of Connecticut. July 19, 1912.) 1. MASTER AND SERVANT (§ 278*) - ACTIONS FOR INJURIES-EVIDENCE-SUFFICIENCY. Where the evidence tended to prove that a deceased employé and another employé of defendant were directed by defendant's superintendent to move a concrete pier 7% feet high and from 18 to 30 inches square, supporting a roof of a building, by rolling it on an iron pipe while in an upright position by means of a jackscrew, that the coemployé turned the screw, while deceased endeavored to hold the jackscrew in position by means of a joist, one end of which was against the jackscrew and the other against a solid wall, that the pier in some manner tipped backward and injured deceased, causing his death, and that the superintendent did not supervise the work, cause it to be done by experienced or competent persons, or provide any colaborer, except the one, the jury might have found that the method adopted for moving the pier was crude and danger-inviting, that the appliances and instrumentalities provided were not sufficient nor reasonably safe, that there was no competent person to direct the work, that fit and competent colaborers were not provided, and that defendant's failure in some of these respects was the proximate cause of the injury, and hence that defendant was negligent, under Gen. St. 1902, § 4702, requiring employers to exercise reasonable care to provide employés with a reasonably safe place in which to work, reasonably safe appliances and instrumentalities, and fit and competent persons as colaborers, and to exercise reasonable care in the appointment of a vice principal. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954-972, 977; Dec. Dig. $278.*] 2. MASTER AND SERVANT (§ 234*)-LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCE. Where the moving of a concrete pier, in which a deceased employé was engaged, involved an extraordinary risk, and the employé knew that there was danger from the pier toppling, but did not comprehend and appreciate the risk of moving the pier with the appliances and instrumentalities provided and in the manner directed, and was not instructed or warned by the employer, he was not chargeable with contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. § 234.*] Charles F. Thayer and Charles V. James, both of Norwich, for appellant. William H. Shields and Donald G. Perkins, both of Norwich, for appellee. HOLCOMB, J. The plaintiff offered evidence to prove the following facts: The defendant corporation had constructed for the Pomonah Company at Taftville, in Norwich, a weave shed, the roof of which was supported by concrete piers extending above the surface of the earth floor 7 feet 6 inches; each pier being 18 inches square at the top and 30 inches square at the surface of the ground. It was decided to extend the length of this weave shed, which made it necessary to construct new piers, or to move the old ones. The latter course was adopted, and new foundations for the piers were con- . structed 3 feet 8 inches from the old piers, which were cut in two at the earth or floor surface by means of wedges inserted in holes drilled in the piers. The superintendent of the defendant corporation placed in charge of this work directed Joseph Beaudry, the plaintiff's intestate, and another laborer named Raphael Dyron to move these severed piers from their original to the new foundations, and provided the following appliances to be used therefor: A section of iron pipe, about an inch in diameter, was inserted under the forward edge of the pier, which pipe was intended to roll along two strips of board laid parallel to each other upon the earth floor between the old and new foundations. In the rear of the pier, a wooden joist 6 inches square and about 12 feet long was placed in a horizontal position about 2 feet above the earth floor, one end of this joist being placed against a solid wall in the rear, and between the other end and the pier was placed a jackscrew, one end of which was placed against the end of this joist, and the other end was laid against the rear face of the pier which was to be moved, the alignment of the joist and jackscrew to be maintained by one of these men with his hands by standing astride the joist facing the pier. The propelling force was to be applied by the other man turning the screw in the jack, which screw was capable of an extension of about 9 inches, and this, if the moving force operated as intended, would force the pier forward about 9 inches before a readjustment of the joist and jackscrew would be required. Beaudry was Appeal from Superior Court, New London straddling the joist endeavoring to maintain County; Ralph Wheeler, Judge. Action by Frank H. Allen, administrator, against the J. W. Bishop Company to recover damages for injuries resulting in the the alignment of joist and jackscrew, and Dyron, with an iron bar, was turning the screw in the jack, thus forcing the pier forward, when, at some point in the operation, |