(81 Conn. 395) MORSE v. CONSOLIDATED RY. CO. (Supreme Court of Errors of Connecticut. Dec. her signature, accepted and acted upon it and the plaintiff both accepted the order for without a witness. If the bank was not sat- the purposes for which it was given, and upisfied with its execution, it should have been on one occasion have recognized its validity. returned, with notice of its defective charac- The order was a sufficient instrument to ter. This regulation for withdrawing de- transfer title to the donee of the money, and, posits was for the protection of the bank | being accompanied by a delivery and acceptand its depositors. Mrs. Isbell would not ance, constituted a valid transfer of the have been permitted to have taken advan- funds as a gift to the plaintiff. tage of this informality, and her legal rep- There is no error. The other Judges conresentative is now precluded from asserting curred. or proving that the transfer was invalid because the order was imperfectly executed. The bank, having prepared the order and accepted it after it was signed, waived the requirement as to its being witnessed. A bylaw of the Connecticut Savings Bank which was a part of the contract with their depositors provided "that, when the deposits are withdrawn, the pass book shall be presented; and no payment shall be made except to depositors or upon their written order accompanied in all cases by the pass book." Mrs. Isbell, wishing to transfer her money on deposit, could not present her bank book as the regulation of the bank required (and as she had agreed to do) but did as the bank directed by signing the order which the bank had prepared to make the transfer effectual. The bank before payment to the plaintiff might have required additional evidence as to the loss of the book and a bond with satisfactory securities to keep the institution harmless from all consequences of such payment. The bank has not claimed any protection because of the existence of this bylaw, and Mrs. Isbell's administrator should not be allowed to question it. This by-law was intended for the protection of the bank and depositors against fraud and forgery, and cannot affect this inquiry as to who now owns this fund. 18, 1908.) 1. STREET RAILROADS (§ 93*)-OPERATION-IN JURIES TO PERSONS-DUTY OF MOTORMAN. A motorman in the operation of his car should conduct himself as a reasonably prudent man would under the circumstances to prevent injury to a person on the track. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 195; Dec. Dig. § 93.*] 2. STREET RAILROADS (§ 112*)-OPERATION— ACTIONS FOR INJURIES-RIGHT OF ACTIONNEGLIGENCE. guilty of contributory negligence, in an action Even if a four year old child could not be against a street railroad for her death by being struck by a car, plaintiff was not excused from showing her conduct and situation when she was injured as bearing upon the company's negli gence. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 112.*] 3. STREET RAILROADS (§ 112*)-OPERATIONACTION FOR INJURIES-PROOF-CAUSE OF INJURY. causing the death of an intestate, plaintiff must In an action against a street railroad for show not only defendant's negligence, but that it was the proximate cause of the accident. [Ed. Note.-For other cases, see Street Rail roads, Cent. Dig. § 228; Dec. Dig. § 112.*] That a street car was running at an excessive speed at the time of the accident did not of itself show that that was the cause of the accident. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 114.*] 5. STREET RAILROADS (§ 114*)-OPERATIONACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE. intestate by being struck by a street car could The proximate cause of injury to plaintiff's be proved by circumstantial evidence, and need not be established beyond a reasonable doubt, but it must be established by facts affording a logical basis for an inference as to the cause, and could not be left to speculation. Section 631 of the General Statutes of 1902 authorizes the assignee an equitable and bona fide owner of any chose in action not negotiable to sue thereon in his own name. There may be a valid gift of the money on deposit in a savings bank in the donor's name, although the donor retains possession of the book. Buckingham's Appeal, 60 Conn. 143, 22 Atl. 509: Kerrigan v. Rautigan, 43 Conn. 17; Minor v. Rogers, 40 Conn. 512, 16. Am. Rep. 69; Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Taylor v. Henry, 48 Md. 550, 30 Am. Rep. 486; Stone v. Bishop, 4 Cliff. 593, Fed. Cas. No. 13.482. This order was given upon a sufficient consideration to support an assignment or transfer of property. A good consideration is 6. STREET RAILROADS (§ 114*)-PERSONAL INthat of blood or natural affection and a gift JURIES-ACTIONS-DIRECTION OF VERDICT. made for such a consideration ought to pre-testate by being struck by a street car, where In an action for the death of plaintiff's invall unless it be found to interfere with the intestate's conduct and situation at the time of rights of creditors and purchasers. The or- the accident was not shown, so that the cause of der was intended by the donor to operate as the accident and the company's negligence was a donation and transfer of the money derected for the company. posited in the bank which was there subject to the disposition of the donor. The bank [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 114.*] wholly speculative, a verdict was properly di [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 114.*] 7. EVIDENCE (§ 244*) - ADMISSIONS ADMIS- The declarations being no part of the transaction out of which the action arose, and being a mere narrative of a past event, were inadmissible as hearsay. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 365; Dec. Dig. § 123.*] walk in front of the store, facing toward the street as if about to step down into the traveled path. The width of the street was not proven; but, as shown by photographs which were in evidence, it was wide enough for the double tracks of the defendant's railway and a traveled path for vehicles upon each side of the tracks. The street was straight for several hundred feet easterly of the place of the accident, and was not much traveled. A few minutes after the intestate was observed on the sidewalk in front of the store one of the defendant's cars came along, bound west upon the northerly or west-bound track. The attention of one of the witnesses was attracted to it by the loud sounding of the gong. Appeal from Superior Court, New Haven She also heard the car stop with a jolt. AftCounty; Joel H. Reed, Judge. Action by Caleb A. Morse, administrator, against the Consolidated Railway Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed. Charles S. Hamilton and Caleb A. Morse, for appellant. Harry G. Day and Thomas M. Steele, for appellee. THAYER, J. The plaintiff seeks to recover damages for injuries received by his intestate in being struck and dragged along the highway by one of the defendant's cars. He alleges that the injuries were caused by the negligence of the defendant, in that its motorman in charge of the car ran it at an excessively high rate of speed, and did not have it under control, and failed to give the intestate any warning of any kind of the approach of the car, and also failed to stop it or get it under control after he discovered her peril. The parties were at issue to the jury upon a denial of these allegations. The plaintiff introduced his evidence and rested his case, and thereupon the defendant, without introducing any evidence, rested its case, and requested the court to instruct the jury to return a verdict for the defendant. The court complied with this request, and its action in so doing presents the chief question raised by the plaintiff's appeal. She er the car was stopped, it was backed a trifle As respected the intestate, it was the duty of the defendant's motorman in the operation of its car to conduct himself as a reasonably prudent man would do under the circumstances existing at the time. To determine whether he did so the jury must have those circumstances before them in the evidence. They could not properly be allowed to guess or surmise how the accident happened. Whether the motorman was guilty of negligence toward the girl depends upon their situation at the time relative to each other. The evidence entirely fails to show what this was. The girl may have been proceeding di It is not claimed that the court erred in directing the verdict, provided there was no evidence in the case from which the jury could reasonably find a verdict for the plaintiff. The claim is that there was such evi-rectly across the car tracks. She may have dence. Viewing the plaintiff's evidence from the aspect most favorable to him, the following are the only facts essential to the issues which are directly established by it: The intestate was a deaf and dumb girl four years and one month of age. On the morning of her injury her mother had given her a pencil and piece of paper, and left her upon the veranda of their home to amuse herself. Shortly thereafter, the girl was at a store upon the southerly side of the street and diagonally across from her home. A few minutes later, she was observed upon the side been at play upon them, or, having crossed them in safety, she may have turned suddenly, and darted upon the track immediately in front of the car to secure the paper or pencil or some other object dropped by her. If we assume that, as claimed by the plaintiff, a child of her age cannot be charged with contributory negligence, this did not excuse the plaintiff from showing what her conduct and situation was at and just previous to her being struck as bearing upon the question of the motorman's negligence. It is claimed that the jury would have been warranted in pay a note, and for that purpose indorses a renewal note for the same debt or a part thereof, protected by the mortgage securing his first inand is compelled to pay the renewal note, he is [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 890-896; Dec. Dig. § 306.*] 3. MORTGAGES (§ 306*) PAYMENT CONSTITUTES-RENEWAL NOTE. WHAT The indorser of a renewal note, secured by mortgage, was absent when it became due, and the mortgagor, the payee bank, and another, arranged to have such other temporarily advance the money to take up the note for the indorser's protection, it being understood that the indorser should retain his mortgage security, and that the bank would discount the mortgagor's note for $500 of the debt, if it was again indorsed by the indorser, all of which was done, and the mortgagor returned the money temporarily advanced to take up the note. Held, that the transaction was not a payment of the note taken up. and the indorsement of the $500 note was merely a renewal of the original note, so that it was secured by the mortgage. finding that the child was struck at the place Evidence offered by the plaintiff to prove declarations of the motorman as to how the accident happened, made two or three minutes after the child had been taken from under the car, and before the car had left the place, was properly excluded. The motorman was not the defendant's agent for the purpose of making admissions. The statement called for was in no way a part of the transaction out of which the claimed cause of action arose, but would have been a mere narration of a past event. As such it was hearsay and inadmissible. McCarrick v. Kealy, 70 Conn. 642, 645, 40 Atl. 603. There is no error. curred. (81 Conn. 351) [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 890-893; Dec. Dig. § 306.*] 4. APPEAL AND ERROR (§ 1008*)—FINDINGS— CONCLUSIVENESS. Payment of a mortgage debt is a question of fact, and the trial court's finding thereon is conclusive unless an error of law was committed in reaching it. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3969; Dec. Dig. § 1008.*] 5. APPEAL AND ERROR ($ 171*)-PRESENTATION OF GROUNDS-QUESTIONS NOT RAISED BELOW. The claims of law should be construed with reference to the matters in fact being litigated. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1053; Dec. Dig. § 171.*] 6. MORTGAGES (§ 274*)-TRANSFER OF EQUITY OF REDEMPTION-RIGHT OF PURCHASER TO CONTEST MORTGAGE-AMOUNT DUE. at a sale was allowed to show on foreclosure Where the purchaser of mortgaged property the amount due on the mortgage debt at that time, he cannot complain that he was not allowed to contest the amount due. Dec. Dig. § 274.*] 7. MORTGAGES (§ 274*)-TRANSFER OF EQUITY While the purchaser of the equity of redemption could rely upon the mortgage as a general description and limitation of the lien, he could not rely upon the mortgagor's statements, The other Judges con- made without the mortgagee's assent, as to the amount due, or assume that the conditions of the mortgage had been performed. GREIST v. GOWDY. (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. MORTGAGES (§ 305*)—PAYMENT-CHANGE IN FORM OF INDEBTEDNESS. No change in the form of the indebtedness will discharge the mortgage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 889-894, 898; Dec. Dig. § 305.*1 2. MORTGAGES (§ 306*)-PAYMENT AND CHANGE IN TIME OF PAYMENT-RENEWAL NOTE. No change in the mode or time of payment will discharge the mortgage, and hence, if an indorser secured by mortgage is compelled to [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 274.*] 8. APPEAL AND ERROR (§ 241*)-EXCEPTIONS TO FINDINGS-FAILURE TO EXCEPT. Assignments of error in finding facts cannot be considered on appeal as brought up under Gen. St. 1902, §§ 795, 796, where the motion below to correct the findings did not have annexed written exceptions to findings or refusal to find, as required by the statute. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 241.*] 9. APPEAL AND ERROR (§ 564*)-PROCEEDINGS BELOW. Under Gen. St. 1902, § 797, permitting the evidence and rulings to be filed and certified within one week after the filing of the finding and the claims for correction therein set forth was absent, and the Greist Manufacturing in the assignments of error on appeal, and au- Company, at the request of the laundry comthorizing the extension of the time of filing, the trial court's order of certification will be 'con-pany, and under an agreement made between strued as an extension of time, and the motion the said Greist Company, the laundry comto correct the evidence and rulings under the pany, and the bank, agreed temporarily, for statute will be considered, though they were in- said laundry company and the plaintiff, to corporated more than a week after the findings were filed; no proceedings to correct having advance the money to meet the payment of the indorsed note for $1,000, and thereby to protect the plaintiff's indorsement thereon until such time as the plaintiff would return, been taken under sections 795 and 796. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 564.*] Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge. Action by P. Raymond Greist against William H. Gowdy. From a judgment for plaintiff, defendant appeals. Affirmed. the Greist Company taking as temporary security for said advancement the personal note It was further agreed by all the parties above of Martley, treasurer of the laundry company. mentioned that the bank would discount the laundry company's note for $500, if the plainOn August 24, 1906, the Congress Laundry tiff would indorse the same as heretofore; Company mortgaged land to the plaintiff to the said note being a continuation of the secure a demand note to the plaintiff for original $1,500 note successively renewed, as $1,000, and also to secure the plaintiff's in- theretofore stated. The plaintiff returned on dorsement upon a four months' note for March 13, 1907, and as agreed, indorsed said $1,500 payable at a bank. The mortgage was laundry company note of $500 in order to obduly recorded. The condition properly de- tain the balance of the said $1,500 note given scribed the notes, contained certain agree- originally by the laundry company. Said ments of the mortgagee, one of which was note at its maturity was paid by the plainto apply the proceeds of sales of stock to the tiff, after it had been protested by said bank. payment of the indorsed note, unless such From money received from the sale of its payment was waived by the mortgagee in own stock the laundry company returned to writing, and then provided "that the said the Greist Company the $1,000 so advanced grantor in the event of its not paying said by it, and thereupon said Greist Company renote so indorsed, is justly indebted to the turned to said Martley said temporary note said grantee in the further sum of fifteen of $1,000. The advancement of said $1,000 hundred dollars ($1,500) with interest; the by the said Greist Company and the return total amount of twenty-five hundred dollars of said sum to said Greist Company by the ($2,500) being payable within twenty (20) laundry company, was without any intention months from the 4th day of September, 1906, to pay, cancel, or release said original inin payments of five hundred dollars ($500) | dorsed mortgage note of $1,500, successively every four months from date. Now, there- renewed as heretofore stated, and in fact no fore, if said promises and agreements are release, receipt, or quitclaim deed was given by well and truly kept according to agreement the plaintiff or by said Greist Company to and said money is paid according to the terms said laundry company, nor was it the intenabove set forth, then this deed shall be void, tion of any of the parties that said advanceotherwise to remain in full force and effect." ment was a payment or liquidation of the The defendant became the owner of the mort- liability under the original indorsed $1,500 gaged property, subject to incumbrances, by mortgage note. But it was the intention of purchase from the receiver of the laundry all the parties that the plaintiff should retain company, July 1, 1907. Upon the trial no his mortgage security to protect him on acquestion was made as to the note for $1,000, count of his indorsement of the last-mentionbut the parties were at issue upon the ques-ed note. The court held that the indorsed tion whether, as against this defendant, the note for $500 was included within the mortmortgage could be enforced as to a note of the laundry company for $500, dated March 13, 1907, indorsed by the plaintiff and claimed by him to be a renewal of so much of the original note of $1,500; the other $1,000 of said $1,500 note having been paid by the laundry company. Concerning said indorsed note, the trial court has found in substance, that when it first came due it was renewed with plaintiff's indorsement, and that when the first renewed note came due the company paid $500 on account, and the indorsed renewal was for $1,000 coming due March 4, 1907. When said note of $1,000 became due, the laundry company was unable to meet its liability thereon. At this time the plaintiff gage security, and rendered judgment accordingly. From this judgment the defendant appeals, assigning several reasons which, so far as the court overruled them, amount on the merits to the single reason that the court erred in holding that the renewal note of $500 was covered by said mortgage. Minor reasons are that the defendant could contest the amount due on the mortgage, that the defendant might rely upon the mortgage and the books of the mortgagor for the ascertainment of the amount due, and that the court erred in finding facts without evidence. Richard H. Tyner, for appellant. William F. Alcorn and Harry W. Asher, for appellee. indorsed note for $1,000, and the indorsing of a new note for the balance of $500, and this $500 was the unpaid balance of the original indorsed note of $1,500. Howe v. Lewis, 14 Pick. (Mass.) 329. GAGER, Superior Judge (after stating the | charge of the plaintiff's liability thereon, or facts as above). The condition in the mort- a release of his security. Payment or nongage described an indorsed note for $1,500. payment is a question of. fact, and the conIf the indorsed note of March 13, 1907, for clusion of the trial court is final, unless in $500 represented in fact a part of the orig- reaching it the court below committed some inal indorsed note of $1,500, then this note error of law prejudicial to the plaintiff, and for $500 is secured by the mortgage. It is which entitles him to a new trial. Carroll familiar law that no change in the form of v. Weaver, 65 Conn. 76, 31 Atl. 489. We perthe indebtedness or on the mode or time of ceive no such error. The transaction, in subpayment will discharge the mortgage. Bol-stance, was the deposit of the amount of the les v. Chauncey, 8 Conn. 391; 1 Jones, Mort- debt with the agreement that it should not gages, § 924. This principle also extends to operate as payment, and it finally resulted renewal indorsements. If an indorser by in the making of a partial payment upon the reason of his indorsement is compelled to pay | the note, and under this necessity indorses a renewal note for the same debt, or a part thereof, and is, by reason of his renewal indorsement, obliged to pay the renewal note, this is a damage necessarily resulting from the first indorsement against which he is entitled to indemnity under the condition of the mortgage. Pond v. Clarke, 14 Conn., 335, overruling upon this point Peters v. Goodrich, 3 Conn. 146; Smith v. Prime, 14 Conn. 472; Boswell v. Goodwin, 31 Conn. 74, 81 Am. Dec. 169; 1 Jones, Mortgages, § 934. This proposition is not formally disputed by the defendant, though the point is made in his second reason of appeal. The defendant does, however, insist that the $500 note is not in fact a renewal of any obligation in-law are to be construed with reference to the curred under the first indorsement, because when the renewal of the $1,000 indorsed note became due, March 4, 1907, it was paid by the laundry company, and that the $500 note of March 13th was for a new loan, and therefore not secured by the mortgage. This question of payment is one of fact and the finding is conclusive against the defendant's claim. In his brief the defendant claims that, even if the note for $500 should be held secured by the mortgage, the judgment is erroneous, because by the terms of the condition the debt was payable in installments, and only $1,000 was due at the time the foreclosure was brought. This claim was not made before the trial court. The finding shows that no contest was made over the note of $1,000 for borrowed money. The sole question before the court was whether the mortgage secured the note for $500, and the claims of matters in fact being litigated. Had this claim been made, it would, perhaps, have necessitated a second foreclosure suit, and we may assume that the defendant confined himself before the trial court to the vital question in the case, in order to avoid needless litigation and costs. Had the claim been made, the answer would have been that It appears that when the renewal note for the mortgagee did not devote the proceeds of $1,000 came due, the plaintiff indorser was the sale of stock to the payment of the note absent. The note was payable at a bank, and for $1,500, as required by the express terms the laundry company effected an arrange of the condition. Another reason of appeal is ment with the bank and with the Greist that the defendant could contest the amount Company, a corporation of which the plaintiff due the plaintiff on the mortgage. The dewas president and manager, by which this fendant purchased the interest of the laundry corporation, for the protection of the plain-company at a receiver's sale. He was pertiff until he should return, temporarily admitted to show, and did show, the amount acvanced the money necessary to take up the tually due on the mortgage at the date of his note, upon the agreement that the plaintiff purchase, and has no reason to complain on should retain his mortgage security, that the this account. It is also claimed that the purarrangement was temporary, and not a pay-chaser had the right to rely upon the statement, and that when the plaintiff returned, ments in the mortgage, and on the books of the bank would discount the laundry com- the mortgagor, as showing the amount due. pany's note for $500 of this $1,000, if plain- This claim was properly overruled. It is tiff would again indorse, thus continuing the true that he could rely upon the mortgage as plaintiff's original liability to the extent of a general description and limitation of the $500. The Greist Company took the personal lien, but it is too plain for argument that he security of the treasurer of the laundry com- could not, as against the mortgagee, rely uppany, and later the laundry company return- on the mortgagor's statements, made withed to the Greist Company the money ad- out the assent of the mortgagee, as to the vanced by it. The whole arrangement was amount due, nor could he assume that the for the purpose of tiding over the situation contract contained in the condition had been caused by the plaintiff's absence until his re-performed by the mortgagor. The remaining turn, and upon the specific agreement of all parties that, as between the plaintiff and the laundry company, the transaction was not in reasons of appeal are based on alleged errors in finding facts. These reasons are not properly before this court under sections 795 and |