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Crossman v. Baldwin.

wages up to the day of his leaving was subject to a recoupment for the damages done to the mill owner, to the full extent occasioned by such hindrance to the operations of the mill.

This right of recoupment is attached to the contract and goes with it into whosesoever hands the right may come to sue on the contract. Such would have been the case if the plaintiff was a bonâ fide assignee of the claim in controversy

We think there is manifest error in the judgment complained of, and hence it is unnecessary to consider the other questions raised in the case.

In this opinion the other judges concurred.

| 49 490 76 461

WILLIAM H. CROSSMAN vs. HANNAH M. BALDWIN.

The defendant contracted to purchase of the plaintiff all the furniture in

a certain hotel used by him in the business of inn-keeping. Held that a piano that had been kept by the plaintiff in the parlor of the hotel for

the use of its guests came within the contract. And held that the plaintiff upon the trial might properly introduce the

testimony of hotel keepers, that a piano was in their opinion a proper article of hotel furniture.

COVENANT BROKEN; brought to the Superior Court in Litchfield County, and tried to the court before Hitchcock, J. Judgment for the defendant, and motion by the plaintiff for a new trial. The case is fully stated in the opinion.

H. B. Graves, in support of the motion.

C. B. Andrews, contra.

CARPENTER, J. The defendant contracted with the plaintiff in writing, under seal, for the purchase of all the furniture in the Mansion House, a hotel in the village of

Crossman v. Baldwin.

Litchfield, “used by said Crossman in the business of innkeeping." A piano valued at $200 she refused to receive and pay for. In an action of covenant broken the sole question was whether the piano was furniture within the meaning of the contract. Judgment was rendered for the defendant and the plaintiff moved for a new trial.

The motion shows that the plaintiff "offered evidence of witnesses and claimed therefrom that said piano was and had been kept by him in said Mansion House, in the parlor and sitting-room thereof, for the use of the guests of said hotel, both transient and permanent, as a part of the furniture used by him in the business of inn-keeping at said hotel.” It also states that “the court, upon all the evidence in the case, decided that the piano in question, used as the evidence showed it to have been, was not an article of furniture within the terms of said agreement."

It does not appear that the defendant offered any evidence on that.point or claimed that the piano was used otherwise than as the plaintiff claimed.

As we interpret the motion the court did not pass upon a question of fact merely, but decided as matter of law that the piano, used as the plaintiff's evidence showed it to have been, was not furniture. In this we think the court erred. That a piano used as this was is furniture used in inn-keeping we can entertain no doubt.

The definition of furniture given by Bouvier in his Law Dictionary is as follows:-“ Personal chattels in the use of a family. By the term household furniture in a will, all personal chattels will pass which may contribute to the use or convenience of the householder, or the ornament of the house, as plate, linen, china, both useful and ornamental, and pictures.” Webster defines it as “ that which furnishes, or with which anything is furnished or supplied ; fitting out; supply of necessary, convenient, or ornamental articles, for any business or residence; also, a supply of intellectual stores or equipments.” That these definitions are comprehensive enough to include this piano admits of no question.

Catlin v. Haddox.

The plaintiff also offered the evidence of several hotel keepers to prove that in their opinion a piano was a proper and necessary article of furniture to be kept in a hotel for the use of its guests. The defendant objected and the court excluded it.

We think the testimony was admissible. It was an offer to show by men familiar with the business its needs, and it tended to prove that it is customary for hotel keepers to keep pianos to be used in connection with their business, for the convenience and pleasure of their guests, and that they are proper articles of hotel furniture.

A new trial is advised.

In this opinion the other judges concurred.

ARTHUR D. CATLIN, ADMINISTRATOR, vs. VIRGINIA E.

HADDOX.

The contract of an infant for the payment of money, not for necessaries,

can not, as a general rule, be ratified by a mere acknowledgment of indebtedness after he becomes of age. There must be an express promise

to pay.

The exception to the rule is, where the infant received the consideration

for which his promise was given, and after he becomes of age, still has it in his possession or under his control. In such a case it will be inferred from his mere acknowledgment of indebtedness that he intended

to make himself liable. In a suit on a note given by an infant, brought after he has become of age,

it will not be presumed that the note was given for necessaries, nor that the consideration remains under his control. The whole burden of

proof is on the plaintiff. Where all the evidence that a note given by an infant a few days before he

became of age had been ratified after he did so, was one indorsement of a year's interest paid, without date, and another of a payment on the principal about four years after the date of the note, both in the handwriting of the payee, and found upon the note after his death, it was held not sufficient to prove even an acknowledgment of indebtedness.

ASSUMPSIT on a note given by the defendant when a

Catlin v. Haddox.

minor ; brought to the Superior Court in Litchfield County, The following facts were found by the court.

The plaintiff sues as administrator of Christopher P. Wheeler, who resided at Goshen in Litchfield County. After Wheeler's death the note in suit was found by the plaintiff in a box containing notes, government bonds and other valuable papers belonging to bim, which he had kept in the vault of a bank in Litchfield. The note was as follows, with the following endorsements upon it in the handwriting of Wheeler:

“ NEW YORK, 16th Oct., 1848. “On demand, for value received, I promise to pay C. P. Wheeler two hundred and eighty dollars with interest.

VIRGINIA E. CHAPIN.”

“ Interest paid on within note for one year.' " Paid on the within note fifty dollars, August 21, 1852."

The note was executed by the defendant, her name having then been Virginia E. Chapin, while a minor, and ten days before she became of age. Wheeler was her uncle by marriage.

The defendant was born at Goshen, October 26th, 1827; removed to Alabama in the fall of 1848; was married in the city of New York in September, 1851, to Edmund H. Arnold ; returned with her husband to the state of Alabama in 1857; was in Connecticut in 1853, 1856 and 1858; Arnold died in 1861, and she was married again in 1866, to her present husband, and has ever since been and is now living with him in Alabama. She has not resided in this state since the fall of 1848, and has been in the state since that period only temporarily.

Upon these facts the case was reserved for the advice of this court.

H. B. Graves, for the plaintiff.

1. The note is not barred by the statute of limitations, as the defendant has lived out of the state ever since it was

Catlin v. Haddox.

given. Nor is the acknowledgment of the debt which we claim to have been made affected by her marriage. The payment of interest was before her marriage, and although she was married when the payment on the principal was made, yet it being her own note it was within her power to make the payment, which was presumably from her own money, and when made it should have the same effect as if she had been sole at the time.

2. The indorsements by Wheeler of the payment of interest and of the payment on the principal, must be regarded as sufficient proof that such payments were in fact made. The indorsements are in his handwriting, as they of course would be. They became, under our statute with regard to memoranda left by deceased persons, admissible as evidence of what they state; and in the absence of all proof to the contrary must be taken as sufficient proof of the fact of such payments. The indorsement of the interest is not dated, but it being for a year's interest, the payment must clearly have been made after the defendant became of age, as the note had then run but ten days.

3. The acknowledgment of indebtedness thus made is a ratification of the debt, which makes the defendant now liable. Stokes y.

Stokes v. Brown, 4 Chandl., 39; Little v. Duncan, 9 Rich. Law, 55. All the authorities are agreed that a mere acknowledgment of indebtedness is enough where the infant retains the consideration and has it in possession on coming of age; which must have been the case here, as she attained her majority immediately after receiving the consideration. And a payment of money is not a mere acknowledgment of an indebtedness, but an expression of an intent to pay.

4. Under Gen. Statutes, p. 417, sec. 9, the action can be maintained against the defendant without joining her husband.

C. B. Andrews, for the defendant.

1. The indorsements on the note, made by Wheeler himself, who had an interest in making them, do not prove that

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