118 among, the aI;ld some small isolated fraction of the entire mental process by which as a trier of the facts he reached a oonclusion::touching the weight of conflicting evidence.
FARRl!JL tI. NA'tIONA;L SHOE & (Circu:/.t CCYUtrt, D. Oonnecucut.
BANK. July 18,1800.)
1.
DEOEIT--:MISTAU 011' LAW.
Plaint,ilf,bein'g a,bout to,' enter into ,a contract With, a, cOTporation for loanll and advance's to it to a large amount, provided its debts llad been accurately stated, for the purpose of verifying said statement, asked the defendant bank how much the cOTporation owed it. Defendant told him a certain amount, which did not include notes given to it by a third person for money actually loaned for the benefit of and received by said corporation, liability for which was denied by said corporation, and not understood, at the time, by' the officer who gave the reply. The bank acted in gOOd faith. Plaintiff, relying upon the correctness of the answer. entered into the contract. The bank afterwards claimed that the corporation was liable upon 'said notes, sued it thereonjthe corporation went into inSOlvency, and great lOBS was suffered by plaintiff. n an action of deceit, held, that defen,dant 'was not liable, its representation having been made' in good faith, the mistake which caused the misrepresentation being a mistake of 'law upon a state of factI which were imperfectly understood. JUDGMENT-PRIVIES'-:AsSIGNMENT II'OR BENEFIT 011' CBEDITORS.
9.
Though. 'under the insolvent laws of Connecticut, the trustees of an insolvent estate are'the representatives, 6f the creditors for the appropriation of t11e perty of the insolvent towards the payment of their debts, they are not their privies in law so that a creditor is bound by all the findings of the court in a suit between. the trustees and another creditor as to the validity of the latter's claim against the estate.
At Law. J. P. Kellogg, S. W. Kellogg, and Ohas. R. Ingerso71, for plaintiff. Geo. O. Lay, H. O. Robinson, J. Halsey, and John W. WebBter, for defendant. SHIPMAN, J. This is an action at law, which was tried by the court, the parties having filed a written stipulation waiving a trial by jury, as will more fully appear by the stipulation which is a part of the record. Upon the trial by the court the following facts were proved, and are found to be true: In the year 1853, or 1854, a joint-stock corporation, under the name of Brown & Bros"was formed under the laws of this state for t.he manufacture of brass and copper goods in the town of Waterbury, which business was continuously prosecuted until the insolvency' of said corporation in 1885. The corporation had for many years a store and branch dffice in New York city, of which William H. Brown had charge from about 1868 till 1884, and for a period of more than nine years before 1884 he acted as the New York agent and representative of the corporation, and during tbat time had exclusive charge of the loans and discounts' obtained for it. or for its use, in New York. From 1875 till 1880, he was secretary of the corporation, and from 1880 to 1884 he was its president. In 1875 he opened two accounts with the defendant, onei.nthe name of "William H. Brown, Agent/' and
1'94
vol. 48.
th'e'otherin the nsme of "Brown&; Bros., WiPiam H. Brown, Sooretary.. of these accounts related solely to the business of the cor, poration. The "agent" account was the 011e used .in the conduct of the New York business, and the other was used in connection with the business at Waterbury. Said Brown was in the habit of obtaining loans from said bank for the use of said corporation, upon accommodation paper made in the name of Brown & Bros., and secured by deposits of On June 26, 1880, he gave such warehouse storage a note for $15,000, the proceeds of which were credited to the "agent" account. When it was renewed"he wailted to change the collateral, and offered, instead of the warehouse receipts, to give 600 shares of the Norwalk IJOck Company stock, which he owned individually. The propositiol1was accepted,bllt the bank desired the form of the note to be changed so that said Brown should be the maker, because he was the owner of the collateral. This was done, and the new note was signed by William H. Brown, and was made payable to the order of the cashier of the bank. The note was also indorsed as follows: "WM. H. BROWN, Agt." Subsequently other notes for $2,400 and $12,500 similar form, were payable to the order of the cashier, were were signed by Brown individually, and were sechred by stocks which he owned individually, and continuously thereafter, down to and at the time of the failure hereinafter mentioned, the renewals of said three notes, drawn and indorsed i,n the same fOrm, and secured in the same way, amounting to $29,900, were due to and were owned by said bank. The second and third notes, and the renewals· thereof, were each indorsed as follows: "Pay Nat. Shoe & Leather Bank. WM. H: BROWN, Agt." Said three loans were ohtained from said bank for the bene£it of said corpqration; and, when made, were understqod by said bank tobe made to said pprporation,and by tpe Cl1ange in of the notes said bank did not intend to affect the liability of said corporation thereon. The proceeds of said three notes were used by said Brown for the benept :ofsaid corporation. At th,e time of the hereafter mentioned; said bank also owned the notes of said. corporation, .signed ",BROWN & BROS.," to the amount of $17,300, which had been theretofore discounted by said bank for the benefit of said corporation. In the spring of 1884 said cOI'portl,tion became finanpially embarrassed, and on, May 5, 1884" said Brown resigned all official connection with. it, and the company substaJltially suspended business. Meetings of the stockholders were held,and efforts were made to secure some one to take the management of the company, and raise 01' provide money to carry on its business.. A committee of the stockholders applied to the plaintiff,' Franklin Farrel, who was a man of Jecognized ·financial credit and large means, to take the management of said compa-ny under his exclusive control, giving it the aid of :his resources, credit, and business ability. The negotiations resulted in. a contract between. the stockholders of said company and said Farrell,whereby stock of said corporation of the par value of $100,000 was transferred to him in consideration of his written agreem.ent, the important part of which is as follows:
FARREL tl. NATIONAL SHOE &: LEATHER BANK.
125
"I further agree, for the consideration aforesaid, to loan and advance to company, at6 per interest, such sum or sums of money as may be necessary to provide for the payment of the present eXisting indebtedness of said company, except s'uch indebtednesS as may be assumed by me or otherwise provided for in such manner as may be convenient for me, but in such way as shall relieve said company from claims thereon; and also to loan and advance lIuch other sums of money as may be necessary to place said company upon a,safe and reliable basis for the continuance of its business, and to provide supplies, and means for carrying on the same, and to mllke necessary repairs and improvements in the mills and machinery of sllid company, and to provide for the continuance of its business, which sums of money so loaned and' advanced to said company shall not be withdrawn or repaid to him until tbe eXisting indebtedness now being against said company shall be paid or provided for, or assumed by said Farrel; and said company relieved from liability thereon; but the interest on all sums so loaned or ad vanced by said Fllrrel shall be payable to him annually." . During the progress of the negotiations with Mr. Farrel, statements of the assets and a list of the liabilities of the company were made out at the meetings of the stockholders. The debt to the Shoe & Leather Bank was put in these lists at $17,300. The real estate and machinery were put in at $550,000 in these statements. With this valuation the statements showed an excess of about $223,000 of assets over liabilities, inclusive of the capital stock. The statements were shown Mr. Farrel. Before completing the arrangement, Mr. Farrel undertook to ascertain for himself the actual amount of the assets and liabilities, and through his agent. verified the accuracy of such inventory I by actual count and weighing t,he manufactured stock on hand, except the stock of German Ililver goods, of which there was a considerable quantity, with which his agent '1Vas not familiar, and he took the statement of the officers or clerks of the company as to the value of that part of the assets. For the purpose of ascertaining the amount of the liabilities, and whether an sion could be obtained thereon with his indorsement, Mr. Farrel visited the held the bulk of the obligations of Brown & ;Bros. He went to the Shoe & Leather Bank, and asked 'Mr. Crane, the presiof the bank, what the. amount of the indebtedness of Brown & was to the bank, and whether the bank would extend them for one year upon his indorsement. Mr. Crane asked the discount clerk for the exact amount of Brown & Bros.' notes, and gave the amount of the notes to Mr.. Farrel as $17,300, and agreed to give the extension requested. Mr. visited all the other banks holding Brown & Bros.' paper, Farrel and found that the indebtedness of the company to those banks corresponded in amount with the list of the indebtedness given him by the company, and that he could procure a like extension from all the other banks. After he had ascertained these facts he decided to take the management of the company. and secure or indorse jts liabilities, and to enter into the agreement hereinbefore mentioned. At the time of sajd Farrel'sinterview with the president of the Shoe & Leather Bank, said hlOk, in addition to the notes 0,1' Brown & Bros. for $17,300, which were held the three notes hereinbefore mentioned, secured by 696 shareI'!. of Norwalk Lock Company stock, and 613 .shares of Brown & -
of salq. saId ,1'tQ be fully ,by the Wi)liam. a.Brown, apd. did not :consider ,them to be obligationaof Bl'own &; Bros. ,and ,the liability of said corporation on said riotesiididnot become apparent ito him until It WllS upontM'Juftderstanding and belief by :Mr. Farrel not exceed ;theamount that the against not exceed the amount that.had been so represented to hitnrand that the defendant's claim against the company did not exceed the atnouDt' of $17,300, that Farrel wusinduced to and did enter into the arraqgement with said: cotnpany,' and' make said' contract. The amount bf'the indebtedness wasil. material .<:Iuestionwithsaid Farrel in deciding and. afterwl;lr4sniaking the contract with the stockholders, and he ''Would not have made said contract if he had kriownor been informed that bank held another claim against the company by reason of the notes given by William H. Brown for that amount. The bank had full knowledge that said Farrel was inquiring into the amount of'theindebtedness for the purposeof deciding whether he would take the :rpanagement of the company, and that he decided to do so with the beliefand' 'understanding that the claims of the bank against ihe company did not exceed $17,300. Mr. Crane acted in good faith in his statement to :Mr. Farrel. In carrying out the contract the bank transfimed to its proportion of the stock of Brown '&: Bros. held by it. 'president, and M!lllmed control and management of the corporatioDjAugust 25. 1884, and indorsed the $17,300 notes held by the bl1nk. 'The first extension was for one year; $15,000 of the same for fourtnonths. the balance being paid. .At the end was that time,'when said Farrel sought a further extension, he was for the first time informed that a c1aitn,was made by the bank that the company was'liable for said notes of $29,900. All the notes of$17,300 against the cotnpany,andalso the notes for $29,900; had been protested, and were overdue, and lying in the bank paper, at the time of :Mr. Farrel's first interview with the bank officers in August, 1884. It was for the interest of the 'bank that said Farrel should take the management of the company, and indQrse or secure the $17,300 held by the bank as protested paper of the company, as the debts of the company were in excess of their assets aside, from their real estate and machinery, and nothing cQuldhll.\re been realized from the equity in said mortgaged property. After asep.rriing control of the corporation, Farrel, in addition: to indorsing the tidtes!;)f defendant bank, as above stated, indorsed th!l. notes of the company :held by all the other banks. He also 'b.orrowed $35,000 upon a note 61'the company. secured by his indorsett,ent and colll1teral stocks of his own, which was presented to the commissioners, and allowed by therfi, but Farrel has paid the same in full. This money was used in paying current bills and starting work in the factory. . He has also paid a large amount of other indebtedness of the . company, 11M is' held as indorser upon the remaining bank notes of the 'i4t I
...
or
FARREL ",. NATIllNAL SHOJi;' &I .
BANK:.
127
companYi&O tbat what he has paid and what. he is lia1?le to pay will to $223,803.93,upqn of 45 per cent. only have beeuorwillpe paid. The business cOQ.tinued under the management of Mr. Farrel for about a year alld four months, when it was found that the 'cowpany was insolvent, and that the capital stock. could not be. made of any Mr. Farrel undertook: to settle up the business by paying the claimsl;lgainRt the company in full, whether secure4 .or not, and disposing of the property :t9 the. best advllntage. At this time.thepaIlk made the first claim to :him that the company was liable three notes of $29,900, and soon after brought suit thereon against the Inconseqtience of that claim and stiit the company made in insolvency, under' the. statutes of Connecticut, for the joint equal benefit of its creditors; There ,h.fl.dbeen large losses in the business after Farrel assumed the management, and there had been little or no profits. A considerable pQrtion .of thillloss is accounted for by the disposition of the silver goods .liL1l<lPPlliness at a sum more than $30,000 less than they were inventoried (o;r, and a fall in the iprice of copper. The losses to the companywere by the fault,neglect, or mismiJ.nagement of Farrel orhis:agep.tg. COlllmillsioners.were appointed by the proper probate coprt an.d allQW or disallow .claims against the estate. of said The q,efen.dant presented its claim upon said .three notes fo).' and upon the money represented thereby, which had been loaneq to Brown & Bros" which claim was disallowed. . The defendant frop! said disaHowance to the superior court for New Haven.county, which court made a ,full finding of facts in the case, reversed the doings. or the commissioners,. and allowed the Upon appeal, the supreme court of errors .decided that there was no error in judgment of: the superior court) upon the ground that William H. Brown ha4 to bindtlle.coJ:poration by procuring loans on its that the entire proceeds of the loanl:! went to pay the debts of the corporation,and that ignorance by the bank of such agency, if ignoranceexisted, was rttpereupon became the duty of the probate to divide the fund from the sale of the assets of saidil'lsQlv:ent its creditors. The plaintiff and the t-rqste,esof the insolvent estate' br,oughttheir petition to that court, setting up,at length the facts which ho,r.e been heretofore stated, and claiming"an equita,ble estoppel, which would prevent the bank from receiving any dividend upon its claim Of$29,900 until Farrel.had received upon his claim for moneys.advanced to and liabilities assumed for Brown & Bros. the full dividend that he woqld have received if the bank's claim for had, not been presented." The court of probate dis 1pissed the petition. Upon appeal of the petitioners to the superior court the facts 'Yere foundin full 'by ,the court, an,d the questions of law arising thereon .. ,(or the advice ofthe supreme court ,of errors, which court a4visedthat the decree ()f. the court should be ,reversed, and th"tcourt should he directed to, pass a decree dividing the fund iJ.\ ,its eqng()lin i1.Qcorq.ance prayer of petition. This. ao-
FEDERAL REl'O'RTER t
vol. 43.
eordirigly Said Farrel's claims were $223,803.13. Said bank's cIilim W811 $29;900. The dividends then declared 'were 35 per cent., andthe'bank's share thereof was$fO;465. Of this sum said Farrel receiVed' $7,385.53, and the bank received $3,079.47. Thereafter the law, to recover ttie'amount which the plaintiff lost in cortsequetice'of the defendant's untrue answer to his question, was The plaintiff, to sustain the averments of his complaint, intrQdu'ded the finding of facts by the superior court in the case of the ap- . peal or the trustees of the estate of Brown & Bros. and FraIl.klin Farrel against the defendant, which was admitted, a.nd the facts hereinbefore found W'regardto the transactions subsequent to the resignation of William H. Brown are stated in the language of said finding. The plaintiff also offered the finding of facts by the superior court in the case of the appeal of the present defendant' against the trustees oisaid, insolvent estate frOm 'the' doings of the commissioners in the disallowance of said claim fdf$29,900. The admission of this evideneewas objected to by the defendant. This record Was offered upon the ground thaHhe trus· tees'rep'res'ented in all their 'acts the creditors of the estate of the insolvent and that'Mr. Farrel, as one of said creditors, was there· 10re a pri:vy in law with 'the trustees. Although it is true that, under the principles of the insolvent laws of Connecticut, the ti'ustees of an insolvEm,teistate become the1representatives' of the creditors for the appropriation of the property of the insolvent towards the payment of their <1ebt.g, ,and can avoid conveyances which are fraudulent and void as against attachiJ;igcreditors,'} do not think that there is such a mutual or successive relationship to the same rights of property between each creditor and the trustees as to inake them privies in law, and to compel any creditor, as to rights 1:>r liabilities between himself and another creditor growing out o£or incidental to their respective claims against the insolvent, to be bound by all thidindings of a court in a suit between the trustees and such other creditor, wherein the validity of the latter's daim against the estate was the'6nly matter properly in issue. I do not, therefore, admit the finding of faCts in the defendant's appeal upon the Farrel is a privYiJi 1aw with the trustees, but the finding stdar forth as it relates to th'ebrigin and history of said three nofes,of theliability ofsaid corporatioriJthereon, the knowledge of the bank that the avails were for the, ,benefit "of the corporation, and to tbe intent of the bank in regard to said liability, is admissible, and was admitted,oecause the action was by the Dank to enfoi-ce said liability, and the statements in regard to the origin of the claims, the use of the avails of the notes by the corporation, and the knowledge and intent of the bank in regard to the liability of the corporation were the bank's case, and are deliberate declarations or admissions on its part of the truth ofthese facts, which.are also important in this case. 1 Greeril.Ev. § 527aj Steph. Dig. Ev. 100. The facts hereinbefdre stated, which took place up to ahd including the resignation of said W. H. Brown, were admitted. Said two recol'ds were the only testimony which was offered by either party in'regard to the alleged fraud by the bank. Theplaintift"s direct loss in i
FARREL fl. NATIONAL SHOE
&;
LEATHER BANE:.
consequence of entering into said contract, which he not have entered into if the bank had answered his question correctly, was and is $115,706.63, without interest. Upon the foregoing facts, the principal question is as to the liability of the defendant for the direct and injurious consequences which resulted to the plaintiff from the untrue, and in that sense, false, representation which was made by its president to the plaintiff concerning a material fact, the knowledge of which especially belonged to the bank. The oral argument was directed more particularly to the question whether the finding that Mr. Crane acted in good faith in making the representation was a finding which determined the result in favor of the defendant. The plaintiff contended that the facts hrought the case within the principle announced in some of the modern cases, especially by the courts of Massachusetts, which is in favor of holding the person who makes positive material misrepresentations, not as to matters of opinion, and not by way of commendation of the seller's wares,but as of his own knowledge, profe.ssing to have knowledge that the representations are true, liable for the damages which are directly caused to a person to whom the representations are made, and who relies, to his harm, upon his confidence in their truth. Mere belief in the existence of a thing" will not warrant or excuse a statement of actual knowledge," in the view of the courts of Massachusetts. Furnace Co. v. Moffatt, 147 Mass. 404, 18 N. E. Rep. 168. The defendant insisted that the case was an ordinary action of deceit in which proof of fraud is requisite, and that to constitute fraud the false representation must be made either knowingly, or withwhether it is true or out belief in its truth, or recklessly, i. e., false; and that a false statement, honestly believed, though on insufficient grounds, falls short of, and is a different thing from, fraud. In support of this position much reliance was placed upon the recent case of Derry v. Peek, L. R. 14 A pp. Cas. 337, overruling the judgment of the court of appeals, reported in 59 Law T. (N. S.) 78. The real difference between the courts is in regard to the latitude which shall be given to the word "recklessly," the house of lords, in Derry v. Peek, holding that the person who makes the misrepresentation must be actually reckless or careless whether he tells the truth or not, whHethe tendency of other jUdges is to hold that when a persoll has no reasonable cause to believe a thing to be true, and makes positive statements upon very insufficient cause, he is reckless. There is, however, a class of caseS which comes under, the general head of cases of deceit, in which, as it is generally held, the deceive may not be a controlling circumstance. This classis intent described by Lord HERSCHELL, who gave the leading opinion in Derryv. Peek, supra, as follows: "There is another class of actions which I must refer to also for the purpose of putting it aside. I mfan those rases where a person within whose special province it lay to know a particular fact has given an erroneous swer to an inquiry made with regard to it by a person desirous of ascertaining' the fact for the purpose of determining his course accordingly, and baS been held bound t() make good the assurance he has given. Burrowes v. Lock, 10 v.43F.no.2-9
180: 'VI)S. 47()a, tJ1Ry bf) an example where a trustee had been asked by an notice of any prior intended lender upon the security ofa trust fund incumbrance upon the fund had been given to hiIn. 'In cases like this it has been said that the circumstance that answer washonespy made in the beliefthat it was true affords no defense to the actionL Lord SELBORNE pointed outj !inBrownlie v. Oampbell, L. R. '5 App. Cas. 925, that these cases were in an altogether different category from lUltions to recover damages for false repsuch as we are now dealiJ;lg with." BUm v. Oroucher, 1 De Gex, F., &,r. Bower v.Fe'(l.n, 90 Pa. St. 859. ' This <lase is, in many 'of its leaqing features, very similar to those which are stated in the paragraph which I have quoted, and, if the facta are within .the principle of those caSeS, the defendant is liable, notwith. stand,ing his good faith. In thilJ case, for the purpose of determining his .course, Farrel was desirous of ascertaining from the bank a fact which it might be expected Ito know. knew that Farrel's inquiry Was for the purpose of deciding he would enter into the obligationswhioh were specified in the proposed contract with the stockhold. e;rsot" Brown&: Bros. If the ,three notes for $29,900 had been of the same cbaracter as the notes for. $17 ,300,-that is, if the liability of Brown &: Bros. had ,been known and manifest thereon,-Mr. ,Crane's forgetfulness of their existence, or opinion that they were fully secured, and his consequent good faith in answering Ji'liu:re!'s inquiry, would have been immaterial. The liability of Brown &: Bros. was not one which was manifest upon the notes, but was a legal question, dependent upon the existence of a state of facts outside 'the notes, and this liability was not thenappa,rent to Crane. The notes: were made by Brown individually to theord¢r of the the bank. They were th,en indorsed: ·'WH. H.BROWNi Agent," ll:nd from the instruments themselves and alone, the name of the corporation nowhere appearing upon the paper, it could not v. Moeb8, 127 be clearly ascertained who was, in law, the indorser. U. S. 597, 8 Sup. Ct Rep.:1319j.J{itchcock v. Buchanan, 105 U. S. 416. The liability of the corporation was nO,t placed l,y the supreme court of errors upon the notes, ,but upon the fact that the loan was actually for the benefit of the corporation which ,used the money. The court say:, "Had the .claim been 80 restricted, ... "','" question whether Brown &;8ros. could held liable or guaranturs,] there wOI,\ld ,be ,0bvioUB in the way of sustaJning the judgment of the superior ,court, for' one must be a, pni'ty to a note to be made liable as maker or indorser, and the face of thehotes in question does not indicate that and, if the indorsement, · WlIl. H. they had any ,relation to Brown & BROWN, Agent,' could be regarded as the indorsement of Brown & Bros., it wouk! still be a mere contingent liability, Without any foundation being laid to make liability absolu,te." l'1atip'(lal Shoe & Leather Bank' 8 Appeal.. 55 Conn. 490, 12 Atl.Rep. 646. ' , , When the form of the notes was changed, the bank intended that the corporation ,should 'be still 'liable, but it was plain that this liability was by the directors;:nnd apparently 'Crane' believed or had become Ii$tisfied 'that their opinion was well; folinded. The fhiding iethat, at the time interview with Fll-rrel, "Crane did not consider them [the UQtes] to Brown & Bros. I and the liability.of said cor-:-
r
BEN-NING . V. WESTERN UNION· TErl. CO.
131
·poration on said notes did not become apparent to him until afterwards." The corporation also did not consider itself to be liable thereon, aud contested its liability through three courts, and it was not until an exblustive examination of fhe facts tha:t its liability became apparent. The existence of the facts upon which thevaIidity of the claim depended subsequently became clear, and the disastrous attempt was made to enforce this liability by suit, but when the conversation ·took place Crane thought that hemustrely upon Brown and his collaterals. The mistake or enor which caused the misrepresentation was a mistake of law upon a state of facts which, when known, are apt to be puzzling. He did not forget, and did not conceal; but he was mistaken in his legal conclusions. If the misrepresentation had. been, in terms, that of a conclusion of law as to the legal consequences of facts truly stated, the bank would have been undoubtedly not liable, (Eaglesfield v. Marquis oj Londonderry, 4 Ch. Div. 693j) a.nd it is true that Crane/did not tell Farrel the history of the $29,900 note, but, simply stated the· result, viz., that the bank's claims against Brown & Bros. were-$17 ,300. The misrepresentation was not, therefore, a mere misrepresentation of law, because he did not tell Farrel his opinion or conclusion upon facts which were also communicated. But the finding leadS to the conclusiCib that these facts did not become clear and the consequent liability did not become apparent to him till afterwards, and in that respect the case is peculiar. A misrepresentation was made, resulting from imperfectly understood and blurred facts, and a consequent erroneous conclusion of law, and it is, in my view, unjust to hold that the person who honestly comes to such an erroneous conclusion must be visited with the unfortunate pecuniary consequences of his error. It was a mistake by reason of which Farrel has suffered terribly, and one which might have been avoided had Crane been more talkative, and told Farrel of all the bank's transactions with Brown, but yet a mistake which ought not to be visited upon the bank in this suit. The conclusion is that, upon the facts as found, the defendant is not lia,;. ble in this suit.
HENNING
v.
WESTERN UNION
TEL. Co.
(Oircw£tCourt, D. South Carolina. May 18, 1890.) TELEGRAPH COHPANIBS-NIlGLIGIlNOE-EvIDENOE.
In an action llgainsta telegraph company for an accident caused by a hanging wire, one witness testified that six or eight days before the accident four or five men cut .down a telegraph pole near the place where the accident occurred, and left the wire hanging. There was no comp'etent evidence that these men were in defenda.nt's service. Another witness testIfied that two men employed by defendant cut down a pole in the same neighborhood 15 days before the accident, but left no wires hanging. There was no proof that the witnesses referred to the same transaction. He14, that the evidence did not connect defendant with the accideIj.t so as to justify a verdict for plaintiff.
At Law. On motion for new trial. Buist &; Buist and John Wingate, for plaintiff. Barker, _ FitzsimDnB, for defendant. &;