W.

of said property, and to return to him the memorandum; and said deputy sheriff then agreed to get a truck and remove said property, and return said memorandum, but afterwards declined so to do. And said officer was never authorized by the defendant to deliver said memorandum to the plaintiff, and the defendant never delivered the same, otherwise than as above set forth." In the reply these two paragraphs were denied. The court found the issues for the plaintiff, and in its finding sets forth, among others, the following facts: Hayes & Rourke were indebted to the plaintiff as alleged in the complaint. E. Beach, a deputy sheriff, attached three furnaces in the possession of Hayes & Rourke on consignment, upon the writ described in the complaint. He placed a keeper in charge of them, and left them on the premises of Hayes & Rourke. At the request of Hayes & Rourke, the sheriff, with them, called upon the defendant; and he was asked if he "would go on a receipt" until the counsel for Hayes & Rourke, who was then out of town, should return, when "they would either furnish another bondsman, or return the receipt, and the officer take the furnaces." The defendant agreed to this, and then signed the writing sued upon, which reads as follows: "New Haven, Connecticut, September 7th, 1898. I hereby agree to warrant the payment of any judgment that may be recovered in the suit of William J. Atwater vs. Hayes and Rourke, before Justice George E. Hall, returnable September 20th. William H. H. Hewitt." After signing this paper, and before handing it to the sheriff, Hewitt said to him, in substance: "You are to keep this paper, and return it when counsel for Hayes & Rourke gets back. If he makes a satisfactory arrangement, well and good; and, if not, you are to take the furnaces and return the paper." The three furnaces remained in statu quo until, and long after, counsel for Hayes & Rourke returned. As soon as he returned, the defendant informed the sheriff that the furnaces were at Hayes & Rourke's, and requested the return of the paper signed by him. The sheriff did not do so, having before that time handed it over to the attorney for the plaintiff in this suit. Subsequently the plaintiff, in his suit against Hayes & Rourke, obtained judgment against them, had execution thereon issued, and demand made, without result, substantially as alleged in the complaint. Upon the trial below, the defendant offered testimony tending to show that the three furnaces aforesaid, until and long after the return of the counsel of Hayes & Rourke, had remained in statu quo. To this evidence the plaintiff objected on the ground that it was immaterial and irrelevant. The court admitted it, and the plaintiff excepted. The defendant also offered evidence of the conversation that took place between the parties who were present when the contract sued upon was signed by the defendant and de

and conditions upon which it was made, signed, and delivered. The plaintiff objected to this "on the ground that all prior conversations were merged in the written memorandum, and that the conversation asked for might tend to vary the terms of said written. memorandum." The court admitted the evidence, to show the circumstances under whichit was claimed the contract was signed and delivered, and the plaintiff excepted. The assignments of error on this appeal relate to the aforesaid rulings of the court upon evidence, and to its action in overruling certain claims of law made by the plaintiff, and in rendering judgment for the defendant upon the facts found.

Richard H. Tyner, for appellant. Henry G. Newton, for appellee.

TORRANCE, J. (after stating the facts). The plaintiff claims that the contract sued upon was, in legal effect, made solely with him, and not with the deputy sheriff; that it was, in legal effect, delivered to him when it was delivered to the deputy sheriff; and that if it was unconditionally delivered, as alleged. in the complaint, the plaintiff is entitled to sue upon it, as the only party interested. Assuming, for the sake of the argument merely, that this claim is true, one of the important questions in the case is whether the writing sued upon was ever delivered to the plaintiff as a present, operative, binding contract. The delivery was expressly denied in the answer, and was thus one of the issues in the case, and in the judgment of the court the issues are expressly found for the defendant. This alone would support the judgment rendered, unless there is something in the special finding which contradicts this general finding in the judgment. Independently of this general finding, however, we think the judgment rendered is supported by the facts found. The answer alleged, as an affirmative defense, that the writing was placed in the hands of the deputy sheriff in escrow, upon this agreement, in substance: If, upon the return of counsel for Hayes & Rourke, a satisfactory bond or receipt was not furnished, or if the property re leased was not then in statu quo, the deputy sheriff should deliver the writing to the plaintiff; but if such bond or receipt was furnished, or said property then was in statu quo, then the writing was to be returned to the defendant. It is further set up, in substance, that the property released remained in statu quo as agreed, and that the officer, with knowledge of that fact, declined to attach it. We think that the fair import of this part of the answer is that the writing was not to be delivered to the plaintiff as a present, operative instrument, except upon certain events or conditions, which never happened nor existed. We also think that this defense is not only supported by the general finding in the judgment, but also by the special finding. The writing given by the defendant is not what is

known as an "officer's receipt," at all. There is nothing on its face, or in the circumstances under which it was given, to show that it was necessarily to take effect at once in the hands of the sheriff. He was fully protected by its delivery in escrow. He might then safely release the attachment, because, although he had no receipt for the property, he had a paper which at a certain time would become operative as security in place of a receipt, unless a satisfactory receipt were then given, or, if that were not given, unless he had full opportunity again to attach the property and place himself in the position he occupied at first. The trial court has found what the parties said and did when this writing was signed and handed over to the sheriff, and from the special facts thus found has drawn the conclusion that the writing was delivered in escrow, as set up in the answer. We think the special facts found, read in the light of the circumstances found under which the writing was given, justify this conclusion. In this view of the case, the evidence objected to by the plaintiff, going to show that the released property remained in statu quo, was clearly admissible, as tending to prove that one of the conditions upon which the writing was to be delivered to the plaintiff never existed. So, too, the other evidence objected to was clearly admissible to show a conditional delivery; this being a case where the rule invoked by the plaintiff in his objection had no application. McFarland v. Sikes, 54 Conn. 250, 7 Atl. 408; Trumbull v. O'Hara, 71 Conn. 172, 41 Atl. 546; Lumber Co. v. Doyle, 72 Conn. 43 Atl. 483. There is no error. The other judges concurred.

WHITE SEWING-MACH. CO. v. FEELEY. (Supreme Court of Errors of Connecticut. Aug. 1, 1899.)

BONDS-ACTIONS-PLEADING-DEFENSES

CONDITIONS PRECEDENT.

In an action against a surety on a bond given to protect plaintiff in carrying on a business with the principal, a plea that the bond was canceled, and surrendered to defendant, but was subsequently redelivered to plaintiff on an oral agreement that the principal continue the same business with plaintiff, and that the condition was not complied with, states a subsequent, and not a precedent, condition, contradictory of, and no defense to, the bond.

Hamersley and Torrance, JJ., dissenting. Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by the White Sewing-Machine Company against James Feeley to recover the amount of a bond executed by defendant. There was a judgment for defendant, and plaintiff appeals. Reversed.

Fred W. Tracy, for appellant. John J. Phelan and Mr. Stiles, Jr., for appellee.

ANDREWS, C. J. This action was brought on a bond executed jointly and severally by the defendant and one Charles Shepard. The The

bond was for the penal sum of $500. It appears that the plaintiff had been accustomed to send goods of its manufacture to Charles Shepard on credit. Shepard on credit. Shepard sold the goods, and, as it was convenient for him, sent to the plaintiff cash, notes, or other bills receivable in payment; and an account was kept. The plaintiff charged to Mr. Shepard the goods sent to him, and credited him with the payments he made. The condition of the bond was that the obligors should "well and truly pay or cause to be paid any and every indebtedness or liability now existing, or which may hereafter in any manner exist or be incurred, on the part of the said Charles Shepard to the plaintiff or its assigns," and mentioned substantially all the forms in which a liability could exist or be incurred. The complaint alleged the execution and delivery of the bond, and attached it as an exhibit thereto; that Shepard had incurred indebtedness to the plaintiff to the amount of $1,335.75, as set forth in a bill of particulars, and that neither said Shepard nor the defendant had paid the same. The plaintiff claimed $650 damages. The answer was in two defenses. The first admitted the execution and delivery of the bond, and averred that all the indebtedness that Shepard had incurred to the plaintiff had been paid and discharged. The second defense, as amended, was this: "(2) On the day of November, 1893, said bond was canceled, and said bond was by the plaintiff surrendered and delivered to the defendant in full discharge of all obligations thereunder. (3) After the surrender to the defendant of said bond as stated in the preceding paragraph, the defendant redelivered said bond to the plaintiff upon the express condition, orally agreed to between them, that the principal therein, said Charles Shepard, should be continued in the same business relation to the plaintiff as theretofore, to wit, should conduct an agency for the plaintiff by purchasing of it such sewing machines as he might be able to again sell to customers within a certain territory. (4) In fact, said Shepard was not thereafter continued in that business relation, but new and different business relations were established between the plaintiff and Shepard, in that thereafter the plaintiff did not sell machines to said Shepard at all, but, instead of so doing, consigned said machines to him as their agent, retaining the title in said machines until the same were delivered to customers. (5) The defendant, upon learning of such changed business relationship, notified the plaintiff that he would not be holden therefor." The plaintiff denied this defense. The court found the issue for the defendant, and for the defendant to recover his costs, and the plaintiff appealed.

There is quite an extended finding of facts, only a very brief mention of which is now necessary. It is found that the bond was executed and delivered at its date; that the plaintiff and Shepard carried on business ac

cording to the existing arrangement until the 23d day of November, 1892; that on that day there was a meeting between Shepard, the defendant, and one Tupper, who represented the plaintiff; and certain negotiations, transfers, and agreements were then made, from which the court finds that the defendant was released from all obligations under said bond. The court also finds that on the same day, at the same meeting, and before these parties had separated, other agreements were entered into, by which the defendant agreed that the obligations of the bond should again become binding upon him, and the parties be reinstated in their former relations, upon certain conditions,-being the conditions that are set forth in the defendant's second defense. The court finds that these conditions have not been complied with. The finding also shows that the bond was in fact never surrendered; it has at all times been in the possession of the plaintiff; and that Mr. Shepard and the plaintiff have ever since that day continued to carry on business, but, as the defendant claims, and as the court finds, not as a purchaser, but as a consignee, of its goods. This case turns on a single point: Are the conditions set forth in the defendant's second defense conditions precedent, so that the bond did not again become binding on the defendant until they were performed, or are they provisions of a different character? The parties have argued the case before us, and the trial court seems to have treated it as though it was a case of conditional delivery of the bond; as if the bond was redelivered to the plaintiff upon the oral condition that it should not become again operative unless the conditions set forth should be complied with. No rule of law can be better established than that oral testimony cannot be received to vary or add to a writing; nor can any oral agreement on the same matter, made prior to or contemporaneously with a with a written one, however clearly proved, be allowed to change or modify the written one. Shore v. Wilson, 9 Clark & F. 525. There may be a separate oral agreement, constituting a condition precedent to the attaching of any obligation under a written contract. Such an oral agreement may be proved, because its existence does not vary or contradict the terms of the writing. But under the claim to show a condition of this kind it is sometimes sought to change the writing itself. It seems to us that the terms of the second defense, while in the form of condition precedent, are, in effect, not conditions precedent, but conditions subsequent. The bond was given to protect the plaintiff in the carrying on of a business with Mr. Shepard, and the terms of the bond provide with some care how that business shall be carried on. The second defense sets up in the form of conditions things that cannot be determined before the purposes for which the bond was given began, but only after those purposes have been completed, or, at the least, have been pursued for a time.

Whether or not Mr. Shepard had been "continued" in a business in a certain way cannot be determined before the business is begun, but only after the business has been going on for some time. The provisions of the second defense do not express a condition precedent, but condition subsequent. They do not express anything that is to be done before the business begins, but stipulate how it shall be carried on after it has been begun; and in this respect they set up something that is variant from the terms of the bond. In finding these proved, and in sustaining this defense, the court established an oral contract contradictory to the written one. This was error. Such a contract was legally immaterial, and, even if proved, was no defense to the bond. Beard v. Boylan, 59 Conn. 181, 22 Atl. 152; Allen v. Rundle, 50 Conn. 10; Burnes v. Scott, 117 U. S. 582, 6 Sup. Ct. 865; Lumber Co. v. Doyle, 71 Conn. 742, 43 Atl. 483. The so-called "condition" upon which the bond was said to be redelivered, being one that the law will not allow, the redelivery was absolute, and the court should have so held. There is error, and a new trial is granted.

BALDWIN and HALL, JJ., concurred.

HAMERSLEY, J. (dissenting). I agree with the majority of the court that the verbal agreement alleged in the second defense, standing by itself, may be construed as expressing a condition subsequent; but, in the light of the facts proved, it is susceptible of a different construction. The agreement, as proved, and found by the trial court, clearly expresses a condition precedent. The finding is this: Tupper, on behalf of the plaintiff, agreed with Feeley to release and discharge him from the obligations of his bond in consideration of his transfer to the plaintiff by bill of sale and delivery of certain property valued at $1,700. The property was so transferred and delivered. The agreement on the part of Feeley was executed, and the bond in the possession of the plaintiff became inoperative. Subsequently Feeley verbally agreed with Tupper to permit the bond to stand if the plaintiff would let Shepard go on in business as before, and would transfer to Shepard the property Feeley had transferred to the plaintiff. The plaintiff did not transfer the property to Shepard as agreed. I think it clear that the condition to transfer the property to Shepard was a condition precedent, and that the promise of Feeley to let the bond stand could not become operative until that condition was performed. Upon the facts as found the judgment of the court is correct.

The real difficulty lies in the claim that the promise to transfer the property to Shepard is not specifically alleged in the second defense in connection with the promise to let Shepard go on in business as before, and therefore the fact is outside the issue, and

cannot be relied upon in support of the judgment. An apparent difference may fairly be claimed between the fact alleged and the fact proved. If this variance is such that the fact proved is so wholly independent of the fact alleged that it cannot be treated as in any way contained in the pleading, nor as evidential of any allegation in the pleading, then the case comes within the rule stated in Greenthal v. Lincoln, 67 Conn. 372, 379, 35 Atl. 266, and the fact found cannot be used to support the judgment. But if the fact found is substantially related to the fact alleged, or is evidential of such fact, and serves merely to enlarge, explain, or prove what has been stated, although defectively, then the failure to demur and to object to evidence of this fact brings the case within the rule referred to in Plumb v. Curtis, 66 Conn. 154, 165, 33 Atl. 998, and the fact found may be used in support of the judgment. I think the variance claimed is of the latter nature. The allegation is that the bond was redelivered upon the express condition, orally agreed, that Shepard should be continued in the same business relation to the plaintiff as theretofore. The proof is that the former business relation involved the ownership by Shepard of some $1,700 worth of property, most of which had been sold by the plaintiff to him, and had been transferred by him to Feeley as security for the bond, and transferred by Feeley, with the consent of Shepard, to the plaintiff, in satisfaction of the bond, and the oral agreement as proved directly stipulates for the transfer of this property by the plaintiff to Shepard, in order to place him in the same business relation as before. The redelivered bond could not take effect until this transfer should be made. I think this proof is in support and explanation of the allegation made, viz. that the bond was redelivered upon an oral agreement that it should not become operative until Shepard was put in his former business relation to the plaintiff. If the statement of this defense was defective, the plaintiff should have demurred. Not having demurred, he should have objected to the evidence, if he intended to rely on the claim of variance. In the absence of demurrer or objection, the trial court properly found that the bond was redelivered upon a condition precedent, substantially as alleged. This fact supports the judgment rendered. I think there is no error in the judgment of the court of common pleas.

TORRANCE, J., concurred.

TESSMER V. NEW YORK, N. H. & H. R.

CO.

(Supreme Court of Errors of Connecticut. Aug. 1, 1899.)

RAILROADS-ACCIDENT AT CROSSING-SIGNALS FROM TRAIN-ENGINEER'S DUTY UNDER STATUTE.

Under Gen. St. § 3554, requiring a locomotive engineer to sound the bell or whistle when with

in 80 rods of a crossing, and to keep the bell or whistle occasionally sounding until he passes the crossing, his failure to keep the whistle "constantly" sounding between the whistle post and the crossing does not, under ordinary circumstances, constitute negligence on the part of the company employing him, although the crossing is dangerous by reason of fences and buildings obstructing the view and hearing of persons crossing it.

Hamersley, J., dissenting.

Appeal from superior court, New Haven county; Samuel O. Prentice, Judge.

Action by August Tessmer, administrator, against the New York, New Haven & Hartford Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Harry G. Day and Benjamin I. Spock, for appellant. Charles S. Hamilton and Oswin H. D. Fowler, for appellee.

TORRANCE, J. The material facts found may be summarized as follows: The Ward street crossing, where the accident occurred, is in a populous part of the borough, and is quite largely used for public travel in teams and on foot. It crosses the railroad, at right angles thereto, over two main tracks, and two side tracks easterly of the main tracks. On the west side of the main tracks are two side tracks, reaching from the Quinnipiac crossing next north of Ward street to within a short distance north of Ward street. At the northwest corner of the Ward street crossing and the defendant's location, and close to the westernmost of the two last-mentioned side tracks, is a large building used as a feed store. By reason of fences and buildings in the neighborhood of the crossing, a person approaching it from the west is, for several hundred feet, and until he passes the corner of the feed store, and is within 30 feet of the west main track, unable to see any portion of the main tracks north of the crossing, or to hear the approach of a train from the north, or the sound of its bell, or even its whistle at the Ward street crossing whistling post, unless the wind is favorable. At the time of the accident a box freight car, as was frequently the case, stood in front of the feed store, not many feet from the end of the west siding. This car shut off all sight of the tracks north of the crossing to one approaching the crossing from the west until he had arrived within 20 feet of the west main track, where about 200 feet of the main tracks north of the crossing could be seen. Warning signs, as required by law, were maintained at the crossing, but no gates, nor electric signals, nor flagman, nor other special safeguards, were there at this time, nor have any such special safeguards been ordered by the railroad commissioners to be kept there. The crossing was "otherwise in good structural condition." These facts made the crossing a dangerous one, and were well known to the defendant and to its officers and servants on the train at the time of the accident. The train was a south-bound fast express, not stopping at Wallingford, and passing through the

borough at the rate of about 50 miles an hour. The locomotive whistle was sounded and its bell rung for the Ward street crossing, as required by the statute. At the time of the accident it was light, the weather was clear, and a light wind was blowing from the south. Upon the facts found the trial court reached the conclusion that the negligence of the defendant directly caused the death of the plaintiff's intestate. This negligence is specifically found to consist in its failure, under the circumstances disclosed by the finding, to keep the whistle "constantly" sounding between the whistling post and the crossing.

That this failure is the only act of negligence found, and the only one upon which the judgment is based, is quite apparent from the finding. Negligence in respect to all other matters is negatived by the finding. The train was running at a lawful and customary rate of speed, the crossing signals were given, and warning signs were up at the crossing, as required by statute, and the crossing "structurally" was in good condition. It is expressly found that the defendant was not negligent in failing to keep at the crossing certain special statutory safeguards, and upon the facts found no other conclusion upon this point was permissible. Dyson v. Railroad Co., 57 Conn. 9, 23, 17 Atl. 137. After the engineer saw the team, he did all that lay in his power by way of warning or otherwise to avoid the collision, or to mitigate its effects. In short, it is found that the only thing, at this time and place, constituting negligence on the part of the defendant, was the failure of the engineer to keep the whistle sounding from the whistling post to the crossing. The plain inference from the finding is that, if this had been done, all the other facts found remaining the same, the conclusion reached by the trial court as to the negligence of the defendant would have been the other way. In reaching its conclusion the court held, as matter of law, that a specific duty rested upon the defendant to keep the whistle sounding from the post to the crossing; and one of the important questions in the case is whether any such duty rested upon the defendant. If it did, the conclusion in question is right, for it is clear that the defendant performed no such duty. If no such duty rested on it, the conclusion is wrong, for it rests wholly upon the failure to perform this specific duty. We are of opinion that no such duty rested upon the defendant. The negligence for which the defendant was held responsible by the trial court was the negligence of its servant, the engineer, in failing to give the crossing signals as required by law. If he was not negligent in that behalf, it follows that the defendant was not negligent. The question, then, is whether the law imposed upon the engineer the duty to keep the whistle sounding in the manner required by the trial court. The law imposes upon the engineer of a train about to pass over a public grade crossing the duty to give certain warning signals, and a

negligent failure on his part to perform that duty may subject him to grievous liability, both civil and criminal. He has to perform this duty under circumstances which leave but little time for thought and reflection. For these reasons the law, as far as is possible, should make his duty plain and clear, to the end that he may know precisely what is required of him. The permanent conditions which detract from the effectiveness of the signals given will vary with the location and surroundings of the crossing, and the temporary conditions, atmospheric or otherwise, having the same effect, will greatly vary from time to time; but the duty of the engineer ought not to vary to suit these varying conditions. Bailey v. Railroad Co., 56 Conn. 444, 460, 16 Atl. 234. The duty of the engineer, with respect to the giving of grade-crossing signals, can only be made plain and clear by statute, and accordingly the legislature has by statute defined what he shall do in that behalf, and the manner of doing it. The statute (Gen. St. § 3553) provides, in effect, that the engine shall have attached to it a bell of a prescribed weight, and a suitable steam whistle. both to be in good working order. It further provides (section 3554), in effect, that the engineer shall commence sounding the bell or steam whistle when the engine shall be approaching and within 80 rods of any public crossing, and shall keep the bell or whistle occasionally sounding until the engine has passed the crossing. It further provides (section 3557), in effect, that before the engineer is permitted to drive any engine upon a railroad he shall be furnished with a printed copy of the sections which define his duty as to grade-crossing signals, and that he shall make oath that he will faithfully comply with their provisions. The practical construction put upon section 3554 has been the common-sense one that the whistle shall be sounded at the 80-rod point, and the bell shall be rung thereafter until the engine passes the crossing. Bates v. Railroad Co., 60 Conn. 259, 266, 22 Atl. 538. We think section 3554, as thus construed, prescribes and defines the entire duty of the engineer with respect to the signals to be given by him, under all ordinary circumstances, when his engine is approaching and is about to pass over a public grade crossing. There may be, in some cases of this kind, special facts and circumstances, which, if known to the engineer, would require him to do more than comply with the provisions of section 3554; but these cases will be exceptional and rare, and they are such as cannot, from their very nature, be provided for by statute. Some of these exceptional cases where more than literal compliance with the statute might be required of the engineer are suggested in the opinion in the case of Dyson v. Railroad Co., 57 Conn. 9, 22, 17 Atl. 137, and others readily suggest themselves. Outside of such exceptional cases, however, the engineer who complies with the statute performs his entire duty with regard