It In Rolls v. Miller, 27 Ch. D. 71, the covenant was that lessees should not carry on "any trade or business of any description whatsoever." The defendants used the premises as a "Home for Working Girls." was a charity. On appeal, Cotton, L. J., said: "It is not essential that there should be payment in order to constitute a business. It might well be that the defendants if they liked to do this in a house which they occupied might do so, but where they do so in a house in which they pay a superintendent in order to receive the girls, these girls are really lodgers. * * Although the lodging is given gratuitously, what is being done must be considered as carrying on the business of a lodging house." In Semple v. Schwarz, 130 Mo. App. 65, 69, 109 S. W. 633, 634, the covenant was: "Nor. shall said lot or any part thereof ever be used or occupied for trade or business of any kind whatever." The court said: "The covenantor, evidently from the very language used, intended to exclude from the lot all and every kind of business and every occupation or calling which can, within the broadest definition of the term, be classed as business. Any other construction * would do violence to its language and tend to defeat its evident purpose." * The courts of New York have given the word "business" in similar covenants the Rowland v. Miller, 139 same construction. N. Y. 93, 34 N. E. 765, 22 L. R. A. 182; Barrow v. Richard, 8 Paige (N. Y.) 351, 35 Am. Dec. 713; Shryock & R. v. Latimer, 57 Tex. 674; Haskell v. Wright, 23 N. J. Eq. 389. These are not cases of nonprofit activities, but they show the construction given the word "business" in similar covenants. In Evans v. Foss, 194 Mass. 513, 80 N. E. 587, 9 L. R. A. (N. S.) 1039, 11 Ann. Cas. 171, the court say of a similar covenant: "The purpose of the restriction was to exclude business of any kind that might prove offensive or injurious to the character of adjoining lots or of the immediate neighborhood." That was the purpose of the covenant before us. It is one not opposed to public policy and should be enforced. Devlin on Deeds, § 991b. There is error. tate with which to purchase an interest in a business. sons, Cent. Dig. 88 110-114; Dec. Dig. § 65.*] [Ed. Note. For other cases, see Insane Per2. INSANE PERSONS (8 72*)-CONTRACTS.. An incompetent under a conservator is legally incapable of making a contract. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. § 125; Dec. Dig. § 72.*] 3. INSANE PERSONS (§ 65*)-CONSERVATORBORROWING MONEY. One loaning money to the conservator of an incompetent with which to buy an interest in a business, knowing the relations of the parties, is chargeable with knowledge that the conservator has no power to bind his ward's estate for the money; so that, the ward or his estate having received no benefit therefrom, it cannot be held therefor, but the conservator alone is liable. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 110-114; Dec. Dig. § 65.*] 4. INSANE PERSONS (§ 98*)-FINAL ACCOUNT OF CONSERVATOR. ed without authority by a conservator of an As tending to show that money, borrowincompetent on the security of an assignment of an interest in the ward's estate, did not go into the ward's estate, so as to make it inthe final account of the conservator, accepted equitable to compel surrender of the security, and allowed by the probate court, and making no reference to the money borrowed, is competent. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 122; Dec. Dig. § 98.*] Appeal from Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge. Action by Ward Church, conservator, against Charles Rosenstein, to compel surrender for cancellation of four pretended assignments, made by plaintiff's predecessor as conservator, of moneys belonging to the incompetent. After demurrer to part of the answer had been sustained, there was judg ment for plaintiff, from which defendant appeals, alleging error in the sustaining of the demurrer, in rulings in admissions of evidence, and on claims of law made at the trial. Affirmed. Charles S. Hamilton, for appellant. Ward Church and Harrison Hewitt, for appellee. THAYER, J. The plaintiff's predecessor, Chipman, as conservator of one Minor, obtained from the defendant $537.50 and executed and delivered to him four assignments purporting to convey to him sums aggregating $600, part of a larger amount of moneys belonging to and standing in the name of Minor in two savings banks in New Haven. Two of the assignments were of money deposited in the National Savings Bank, the other two of money deposited in the New Haven Savings Bank. The deposit books at the time were in a safety deposit vault the key of which was in the possession of Minor's brother, who was then in South Under the statute fixing his duties, the America. conservator of an incompetent has no The money, under the rules of thority, without order of the probate court, to the savings bank, could not be withdrawn borrow money on the credit of his ward's es-except upon presentation of the deposit CHURCH v. ROSENSTEIN. (Supreme Court of Errors of Connecticut. March 7, 1912.) 1. INSANE PERSONS (8 65*)-CONSERVATORBORROWING MONEY. au books. At the date of the last two assign- | fore, in holding the ward's estate to repay ments, a paper was drawn up and signed it. The defendant contracted with Chipman by Minor and delivered to the defendant, in personally and must look to him for repaywhich he stated that he was willing to in- ment. vest $600 for a one-fourth interest in the [4] The plaintiff introduced in evidence Chipman Studio and was willing to have the final account of Chipman as conservator Rosenstein, the defendant, advance him that accepted and allowed by the probate court. sum for that business, and further stating The account made no reference to the money that he agreed to pay back that amount borrowed of the defendant or to the assignwhen the key of the safety deposit vault ments. The defendant objected to it as irshould be returned, and that he had assign- relevant, immaterial, and incompetent. It ed to the defendant $600 in the savings was competent for the plaintiff to show that bank. The Chipman Studio, in which the the court had not approved the transaction incompetent thus stated his willingness to between the parties. Where a guardian or become a part owner, was a photographic other trustee improperly uses or reinvests business belonging to his then conservator, the funds of his ward, the latter is entitled Chipman, and the latter in obtaining the to any benefit derived from the transaction. money from the defendant told him he want- The evidence, while not conclusive upon the ed it to pay some bills of the incompetent | defendant, was competent for the purpose and to purchase an interest in this photo- of showing that the borrowed money had not graphic business. The court in its finding gone into the ward's estate and been turned speaks of this transaction as a loan; the over to the plaintiff as a part of that estate 'defendant in his pleadings describes it as a with the approval of the probate court. loan; and it is manifest from the statement Had it been, it would be inequitable for him which the defendant accepted from Minor to retain it and also to retain the assigned at the time the transaction was closed, and deposits. from the circumstances attending the advancement of the money, that it was a loan and was so understood by all the parties. The assignments were given merely as security. It was not expected that the money would be drawn by the defendant, but was known that it could not be drawn by him because the books were not assigned or delivered to him. His assignments did not cover the entire deposit in either bank. When the deposit books were returned to Minor or his conservator, they were to pay back the money borrowed. [1, 2] Chipman's duties as conservator are fixed by statute. Apart from the impropriety of attempting to sell an interest in his own business to himself as conservator, he had no authority under the statute, and without the order of the court of probate, to borrow money on the credit of his ward's estate with which to purchase an interest in a photograph business. The statute neither expressly nor impliedly gives him such power. And the incompetent under a conservator is legally incapable of making a contract. Brown v. Eggleston, 53 Conn. 110, 119, 2 Atl. 321. [3] The defendant knew the relations of the parties and is chargeable with knowledge that a conservator had no power to bind the incompetent's estate for the money borrowed. It does not help him if in fact he did not know that the conservator had no such power and therefore acted, as the court has found that he did, in good faith in advancing the money. It appears that the ward and his estate received no benefit from the money loaned; that the interest in the photograph business was not transferred There would be no equity, there The same question raised upon the trial was presented on the demurrer and was properly decided in the same way. There is no error. The other Judges concurred. SMITH V. DAVID B. CROCKETT CO. (Supreme Court of Errors of Connecticut. March 7, 1912.) 1. CONTRACTS (§ 113*)-ILLEGAL CONSIDERATION - PUBLIC POLICY-INDUCING BREACH OF TRUST. A contract, providing that an employer would reimburse a salesman for all sums paid as bonuses or bribes to purchasing agents to secure contracts of sale, is illegal as opposed to public policy. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 521-541; Dec. Dig. § 113.*] 2. CONTRACTS (§ 138*)-LEGALITY OF OBJECT to him. man, there was no explanation of a provision | doned, and that there remains due the plainfor the reimbursement of sums to be paid by the salesman as "bonuses," evidence was admissible under a proper plea to explain that the payments were to be made as bribes to purchasing agents. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2105, 2106; Dec. Dig. § 456.* For other definitions, see Words and Phrases, vol. 1, p. 836.] 5. EVIDENCE (§ 448*) - CONSTRUCTION -INTENTION OF PARTIES-AMBIGUOUS TERMSEVIDENCE. An explanation of doubtful or ambiguous terms of an instrument may not be made by testimony of either party as to what their intention was or what his intention was in using the words, but may be made only by proof of facts and circumstances not inconsistent with the writing tending to prove the sense in which its words or terms were used. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2066-2082, 2084; Dec. Dig. § 448.*] Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge. Action by George Frank Smith against the David B. Crockett Company. From a judg ment for plaintiff, defendant appeals. ror, and new trial ordered. Er. tiff under the contract for salary and expenses the sum of $2,500, for which a bill of particulars was filed by the plaintiff showing the amount of his salary during said period to be $7,000; the amount of his expenses incurred to be $4,200, and the amount paid to him to be $8,650. In its second defense the defendant alleges, in substance, that the agreement under which the plaintiff sues provides that, in order to make sales of the goods in question, the plaintiff was permitted to pay a bonus of not more than 25 cents per gallon to persons who were to be unknown to the defendant, and that it was so made for unlawful objects, and that it is void as being contrary to public policy. The defendant attached to his answer statement showing that, in rendering the services and incurring the expenses for which this suit is brought, the plaintiff paid bonuses to persons unknown to the defendant, and which have been repaid to the plaintiff, to the amount of $547.95. The court found that the defendant had paid to the plaintiff the $7,000 salary, the $547.95 bonuses, and that there was due the plaintiff $1,750 under a James A. Marr, for appellant. William B. the provision of the contract giving him $100 Stoddard, for appellee. HALL, C. J. Paragraph 1 of the complaint alleges that on the 6th of April, 1906, the plaintiff and the defendant entered into the following written agreement: "April 6, 1906. Agreement made this day between the David B. Crockett Company of Bridgeport, party of the first part, and Mr. G. F. Smith of Milford, Conn., party of the second part. The party of the first part agrees to pay the party of the second part the sum of two thousand dollars ($2,000) per annum, and if the sales of the said party of the second part reach the sum of thirteen thousand dollars ($13,000) between the first day of May, 1906, and the first day of May, 1907, they agree to pay the further sum of five hundred dollars ($500), and if the sales reach twenty thousand dollars ($20,000) the sum of one thousand dollars ($1,000) will be paid in addition to the $2,000. The party of the second part agrees on his part to use his best endeavors to sell the goods manufactured by the party of the first part to railroads, steam, trolley, etc.; the party of the first part agrees also on the first of every month to pay the party of the second part one hundred dollars ($100) for expenses during the month following, also to allow the party of the second part to pay to persons unknown to the party of the first part a bonus amounting to not more than twenty-five cents (25 cts.) per gallon." Paragraph 2 and 3 allege that the plaintiff continued in the employ of the defendant under said contract performing his duties until October 1, 1909, when by mutual agreement, said contract was aban a month for expenses, which sum with interest made up the judgment in favor of the plaintiff of $1,927.33. During the trial, the defendant, in support of its claim that said agreement for the payment of bonuses was illegal, asked of the plaintiff as a witness various questions to show what was done in the payment of bonuses, and whether they were paid to the agents who purchased goods, and for the purpose of influencing such agents to purchase such goods for their principals. These questions were excluded by the trial court, apparently upon the grounds that the provision concerning the payment of bonuses, even though invalid, is separable from the other provisions of the agreement, and is not the provision of the contract sued upon or sought to be enforced by the plaintiff. That such was the view of the trial court is indicated by its statement in excluding the offered evidence that, if the plaintiff were seeking to recover the $500 bonus which he had paid out, he would be "standing on quite a different basis." We are of opinion that by the present action the plaintiff is in effect asking the court to enforce the objectionable provision While of the contract concerning bonuses. the finding shows that the plaintiff has been repaid the large sum, which in accordance with the items of the contract he paid as bonuses, he has not been fully paid, as the contract provided he should be, for his services in procuring such sales, and he is by this action asking for the payment of the remainder of the compensation which under the contract he was to receive for his serv ices and expenses in making sales by the method provided by the contract. The duty of the plaintiff under the contract and the real and only purpose for which he was employed, and for which he was to be paid, was to make sales of the goods manufactured by the defendant. What these goods were the contract does not indicate, any further than that they were goods to be sold by the gallon. The finding, however, states that they were varnishes. The plaintiff was to sell these goods to "railroads, steam, trolley," etc. The contract provided that in order to make such sales the plaintiff might pay bonuses to parties unknown to the defendant. It also contemplated the plaintiff would devote his time, wholly or in part, to the making of such sales, and would incur other expenses than the payment of the bonuses. For all such services and expenses, if the sales made between May, 1906, and May, 1907, did not reach $13,000, the plaintiff was to receive $2,000 per annum, the further sum of $100 per month, and apparently such sum as he should pay in bonuses to unknown parties not exceeding 25 cents per gallon. [1] In accomplishing the sales which he has made, it appears that the plaintiff has paid between $500 and $600 as bonuses, in accordance with the provisions of the contract. If these bonuses were intended to be paid and were paid as bribes to purchasing agents of the railroads to induce such agents to purchase the defendant's varnishes for their principals, or to afford such agents the opportunity of graft, which is the receiving of personal gain without rendering compensatory services, by persons holding positions of trust and confidence, and is but a form of bribery (State v. Sheridan, 14 Idaho, 222, 93 Pac. 656, 15 L. R. A. [N. S.] 497; Dixon v. Chappell, 133 Ky. 663, 118 S. W. 929; Quinn v. Pub. Co., 55 Wash. 69, 104 Pac. 181, 133 Am. St. Rep. 1016, 19 Ann. Cas. 1077), if such, we repeat, were the purposes of these bonuses, this provision of the contract was intended to induce persons to violate the confidence reposed in them by their employers and principals. Such an agreement is opposed to honesty in business. It is contrary to public policy. It is illegal, and the time spent and the expense incurred by the plaintiff in so accomplishing or attempting to so accomplish sales were as much a part of the illegal transaction as was the actual payment of the bonus itself. If such was the real character of this provision, the plaintiff could neither recover for services rendered nor for expenses incurred, nor for bonuses paid in making the sales. [2] The law will not compensate the plaintiff for such act, or for any act or service or expense whatever rendered or incurred in the accomplishment or attempt to accomplish sales by such methods. The promise to pay for such services would be based upon an il sideration of which is illegal is void, and so is every engagement which has such illegal contract as its basis, or which may properly be considered part and parcel of such contract. Sturges v. Bush, 5 Day, 452, 460. "Contracts which are opposed to open, upright, and fair dealing are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by another is of this character." Rice v. Wood, 113 Mass. 135, 18 Am. Rep. 459. "Courts not only redress fraud but seek to prevent it by removing temptation." McDonald v. Haughton, 70 N. C. 399. "The law avoids contracts and promises made with a view to place one under wrong influences; those which offer him a temptation to do that which may affect injuriously the rights and interests of third persons." Bollman v. Loomis, 41 Conn. 581, 584. Neither courts of law nor equity are open to enforce such contracts. If both parties are in pari delicto, the courts will leave them where they find them. [3] This rule, however, permits either party to plead and prove by proper evidence the illegal character of the contract. Funk v. Gallivan, 49 Conn. 124, 128, 44 Am. Rep. 210. We come then to the questions of whether the defendant should have been permitted to prove facts showing that, by the language used, the parties contemplated that the bonuses should be paid for corrupt and unlawful purposes. [4] An argeement to pay a bonus is not necessarily a corrupt and unlawful agreement. Generally a bonus is a sum given or paid beyond what is legally required to be paid to the recipient. The words "payment of a bonus" may also be used in the sense of payment of a bribe (Century Dictionary); of the payment of a sum to weaken or destroy the fidelity of a trusted agent. The defendant had pleaded that the provision for the payment of bonuses to unknown persons was for unlawful purposes and was void, as contrary to public policy. If, when read in connection with the entire writing, the provision in question was "ambiguous or of doubtful import," the plaintiff was entitled under his answer to present evidence showing in what sense the parties used the word "bonus" (Adams v. Turner, 73 Conn. 38, 45, 46 Atl. 247; Parker v. Selden, 69 Conn. 552, 38 Atl. 212; In re Curtis-Castle Arbitration, 64 Conn. 501, 514, 30 Atl. 769, 42 Am. St. Rep. 200), and that they were used with the intention of providing for the payment of bonuses for unlawful and corrupt purposes. [5] This rule does not permit either party to a contract to testify on direct examination what the intention of the parties was, or what his intention was, in using the words or terms of doubtful import, but only to firmed. sistent with the writing itself, tending to | fore a justice of the peace. From a judgprove in what sense the parties used such ment for defendants, plaintiff appeals. Afwords or terms. Brown v. Slater, 16 Conn. 192, 196, 41 Am. Dec. 136; Fairfield v. Lawson, 50 Conn. 501, 510, 47 Am. Rep. 669. Such was the apparent purpose of the questions asked the plaintiff which were cluded. ex We think the defendant was entitled to prove to whom, and under what circumstances, and for what purposes, the bonuses were in fact paid by the plaintiff, and that the court erred in excluding the questions asked of the plaintiff for that purpose, and in holding that the provision respecting the payment of bonuses was separable from those regarding the payment of the $2,000 a year, and the $100 a month. There is error, and a new trial is ordered. The other Judges concurred. TOWN OF WOLCOTT v. STICKLES et al. (Supreme Court of Errors of Connecticut. March 7, 1912.) 1. CRIMINAL LAW (§ 90*)-JUSTICES OF THE PEACE-JURISDICTION. Under Gen. St. 1902, §§ 1211, 1434, 1446, punishing the larceny of poultry by fine not more than $100 or imprisonment for not more than 2 years, or both, and giving a justice of the peace jurisdiction of all offenses committed in the town in which he holds court which are punishable by a fine of not more than $7 or by imprisonment of not more than 30 days, or both, etc., a justice of the peace has no final jurisdiction in prosecutions under section 1211. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 129-136; Dec. Dig. § 90.*] 2. BAIL (§ 55*)-CRIMINAL PROSECUTIONSREQUISITES OF BOND. Under Gen. St. 1902, § 1443, providing that on the adjournment of a hearing of any criminal cause by a justice of the peace the recognizance shall be taken to the state, if the cause is not within the final jurisdiction of the justice, a recognizance taken in the name of the town, where the justice has no final jurisdiction, is void. [Ed. Note. For other cases, see Bail, Cent. Dig. $8 213-224, 228-238, 246-253; Dec. Dig. § 55.*] 3. LARCENY (§ 30*)-COMPLAINT REQUISITES -"CHICKENS"-"POULTRY." A complaint, alleging that accused stole chickens of a specified value, charges the larceny of "poultry," punishable by Gen. St. 1902, § 1211; the word "chickens" meaning poultry, and the word "poultry" including domestic fowls, generally or collectively, reared for the table or for their eggs or feathers. Charles G. Root, for appellant. Robert A. Lowe and Theodore E. Rogers, for appellee Lecoursierre. RORABACK, J. This is an action on a recognizance given in a criminal proceeding before a justice of the peace. On April 5, 1911, the defendant Stickles was arrested and brought before a justice of the peace in the town of Wolcott to answer to a charge of stealing six chickens, valued at $6. The justice adjourned the hearing to April 6, 1911, and the defendant Stickles, as principal, and the defendant Lecoursierre, as surety, entered into a recognizance to the plaintiff town in the sum of $400 for the appearance of Stickles upon, adjournment day. Stickles failed to appear, and this action was brought to recover the amount of the recognizance. The defendant demurred to the complaint because: "(1) The recognizance upon which the plaintiff bases its cause of action is void. (2) A justice of the peace has not final jurisdiction of the crime alleged in the complaint. (3) The recognizance upon which the cause of action is based should have been taken to the state, instead of the town of Wolcott." The demurrer was sustained, and this action of the court is assigned as the sole reason of the appeal. The complaint upon which Stickles was arraigned before the justice of the peace was not made a part of the proceedings in the case now before this court. We have no means of ascertaining a description of the offense stated in the criminal case, except from the allegations of the complaint in the present action, which states that, "on April 5, 1911, the defendant Howard Stickles was the accused in a criminal cause legally pending before said justice of the peace; said Stickles being charged with the theft in said town of Wolcott of six chickens of the value of six dollars ($6)." [1] General Statutes, § 1211, provides that "every person who shall steal poultry shall be fined not more than one hundred dollars or imprisoned not more than two years, or both." "No justice of the peace, borough, town, police, or city court, shall have final jurisdiction of any prosecution for crime the punishment for which may be imprisonment in the state prison." General Statutes, § 1446. An offense whose maximum punishment exceeds that which the justice can lawfully impose is not within his final jurisdiction. State v. Campano, 76 Conn. 549, 551. Appeal from District Court of Waterbury; 57 Atl. 164. Section 1434 of the General Charles E. Meigs, Deputy Judge. Statutes reads as follows: "Every justice Action by the Town of Wolcott against of the peace, in any court holden by him in Howard Stickles and another on the recog- the county for which he is appointed, shall nizance given in a criminal proceeding be-have jurisdiction of all offenses committed [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 64-75; Dec. Dig. § 30.* For other definitions, see Words and Phrases, vol. 6, p. 5476.] |