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such an interpretation as will carry out the | instance for the enforcement of this rule of intention of the parties to the deed. Seery construction, and the word "business" were

v. Waterbury, 82 Conn. 567, 569, 74 Atl. 908, 25 L. R. A. (N. S.) 681, 18 Ann. Cas. 73. In order to ascertain and carry out this intention, courts have adopted certain rules of construction. Language is to be taken in its ordinary and natural meaning in connection with the situation and surrounding circumstances. If the language is capable of two or more meanings, and doubt remains after all legitimate aids have been used, the grant should be taken most strongly in favor of the grantee and against the grantor. Sweeney v. Landers, Frary & Clark, 80 Conn. 575, 580, 69 Atl. 566. If a particular enumeration is followed by general descriptive words, and no contrary intent appears, the latter will be limited in their scope to matters and things of the same general kind or character. These rules were adopted to aid in carrying out the intention of the parties; they cannot be invoked to defeat it. We think the intention appears as a matter of fact without the aid of these rules, and that properly applied the rules of construction support this intention.

to include only the kinds of business particularly named or described, it could not properly be confined to gainful pursuits, since one of the enumerated classes is a public museum. A "museum" is "a repository or a collection of natural, scientific, or literary curiosities or objects of interest, or of works of art." Webster. In the Bibliography of Museums we find a classification which appears to have always obtained in this country; the public and the private museum, the public conducted through philanthropic motives, the private sometimes through philanthropy, more often for individual or institutional gratification or benefit, and infrequently for commercial motives. In early days our principal cities had each a public museum founded and supported by private generosity. The earliest collection is said to have been that formed at Norwalk, Conn., prior to the Revolution, which President Adams visited; his interest culminating in the founding of the American Academy of Arts and Sciences. Later other museums were founded and maintained by private or governmental bounty and open to the public. So that in 1834 we had in this country both public and private museums. A similar distinction exist

braries. Neither the public museum nor library was operated for a profit. What was true here was true throughout the civilized world. There were in New York City, in 1834, at least two places of amusement for the exhibition of waxworks, curiosities, and animals. These were commercial enterprises of a private character. They were called "museums," as, Scudder's Museum. In the sense of the definition they were not museums. Neither then nor at any time before or since have museums of this kind been designated as public museums. They had none of the characteristics of the public museum, nor, indeed, of the many private museums not conducted for gain. So that this covenant specifically restricts a use by a business activity of a philanthropic character, and if the word "business" is governed in its meaning, as the opinion holds, by the enumerated occupation, public museum, it must include those businesses which are not conducted for gain.

Another rule of universal applicability and primary importance is that where the parties have for many years placed a practical construction upon the meaning of a restric-ed between the public and the private litive covenant, open to two constructions, this will, in the absence of strong proof of a contrary intention, go far to establish this as the construction intended by the parties. Watson v. New Milford, 72 Conn. 565, 45 Atl. 167, 77 Am. St. Rep. 345. The opinion rests its conclusion mainly upon the rule of construction referred to, that the use of the word "business" in association with trade and in connection with other enumerated occupations makes it clear that the use of the word "business" includes all gainful occupations, the obnoxious features of which are within this restrictive covenant. This is a misconception of the rule. Applied in its broadest sense, it would limit the word "business" to kinds of business of the same general kind or character as trade and the particularly enumerated occupations. It would not extend its use beyond their scope. "Trade" in its ordinary sense means buying and selling. These enumerated occupations include such as are dangerous, apt to become nuisances, productive of noise, offensive to the moral sense of a large class of people, and such as gather large numbers of people. Neither of these classes, except the public museum, would include that vast number of occupations in which men gain their livelihood which are neither trade nor the occupations specified.

Because these occupations are gainful, it does not follow that the word "business" includes merely gainful occupations; on the contrary, this rule would limit business to occupations of the kind and character speci

The parties intended to make of the tract included in the trust deed a residential section of the better class. For this purpose the large square was laid out, a place of beauty, recreation, and health for the benefit of those living around it, adding appreciably to the value of each adjoining lot. It is our duty to so construe the covenant against business that this intention may be fulfilled. In its more limited sense, the word "business" is used to denote occupations carried on for pecuniary reward. In its more general or common use, it denotes not only all

duties in which men engage. Rolls v. Miller, 27 Ch. Div. 71, 88; Bennett v. Hebbard et al., 74 N. H. 411, 68 Atl. 537; Semple v. Schwarz, 130 Mo. App. 65, 69, 109 S. W. 633. We think the enumeration of certain occupations, and then adding the generalization "or any trade or business," was plainly intended to cover every form of human activity. Business is not used in the sense of trade, nor intended to be confined to the classes enumerated. It has an individual meaning and existence. And this the opinion concedes when it extends its meaning beyond trade and the scope of the enumerated occupations to every form of gainful activity. And the authorities give to the word when used in such a covenant this individual meaning. Which meaning of the word "business" will best promote the purposes of this deed preserving the residential character of this square and keeping out activities dangerous or offensive to the neighboring inhabitants? The narrow view, confining it to trade and to occupations of the enumerated character, or to gainful occupations, thus opening the square to hundreds of activities which may prove dangerous or offensive to the neighboring inhabitants, although belonging to no gainful pursuit, by bringing crowds within the square, to disturb its peace, overrun its park, diminish the value of the lots and residences, and thus negate the purposes of the trust deed; or the broader view of business, which would keep out every form of activity, dangerous or offensive to the neighboring inhabitants, exercising a reasonable judgment? There can be but one answer. The plain intent of the deed should not be defeated through the use of rules of construction.

We have seen that the practical construction of the parties is all but controlling in cases of ambiguity. From the date of execution of the trust deed to this action, 76 years, all of the owners of these lots fronting on the square have construed the word "business" in this broader sense, and no business of any kind, unless we should except that of a doctor, has ever invaded this square. In 1893, through condemnation proceedings, four of the lots on the south side of the square were taken for a high school by the city of New Haven, and the defendants' grantors and all other owners of lots affected by the trust deed were parties to the condemnation proceedings and were awarded damages for the loss of their easements. As the school was not carried on for a profit, damages must have been awarded upon the theory that the restriction against business included activities not gainful. This accorded with the practical construction always placed on this covenant. Under the construction of the court, it must follow that the city was under no liability to pay these damages, and that the lot owners had no legal or moral right to receive them. The work conducted by the defendant must be done by its paid

officers or employés. As to these, this is the business of helping conduct a home for orphans and old men. If they are engaged in a business, why is not the joint result of their efforts a business? Those who own this institution do not live in it; those who live in it are either paid employés or lodgers paying a part of the cost of their maintenance. The institution is a "charity"; it is also a "business" in the broad sense of the term.

Suppose the construction of the court stands. Then a private school for 20 is within the restriction because conducted for a profit, while a public school of 2,000 is not because not conducted for a profit. Then a private sanitarium for 20 is within the restriction, while a public asylum for the insane with 2,000 patients is not. But we need not multiply examples to demonstrate that so narrow a construction of the word "business" would defeat the very purposes of the trust deed and convert the square into a noisy neighborhood, and fill its streets and park with a multitude and perhaps with many undesirable persons. It has, we believe, been all but uniformly held that the term "business" in such a covenant was not restricted to its associated term "trade" nor confined to the named occupations connected with it, nor confined exclusively to occupations pursued for gain. This was the law of England before this trust deed was executed, and we think the covenant in question was taken from those in use in New York, and they in turn substantially from England. Presumably its use in this country by expert conveyances was with full knowledge of the construction placed upon the covenant by the English courts. At the foundation of all these decisions is the controlling issue: Shall the contracts of men, made within the law, be upheld and their intention as manifested by their contracts be fulfilled?

In Doe, Lessee, v. Keeling, 1 Maule & S. 100, the covenant was against "any trade or business whatsoever." Lord Ellenborough, C. J., said: "The intention of the covenant was that the house should not be converted to any purpose which might be likely to annoy the neighborhood, and by that means to depreciate its value at any future period."

In Bramwell v. Lacy, 10 Ch. Div. 691, the restriction was against carrying on "any trade, business or dealing whatsoever which may be or grow to the annoyance, damage, injury, prejudice, or inconvenience of the neighboring premises." The defendants operated a hospital for poor persons. It was a charity, though about half of its patients paid a small charge. The Master of the Rolls, Jessel, said: "The first question is: Is this a 'business' or 'in the nature of a business'? I have no doubt it is. The question whether it is a business carried on for the purpose of profit or not, is not, in my opinion, material."

*

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 same construction. Rowland v. Miller, 139 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.

(85 Conn. 279)

tate with which to purchase an interest in a business.

sons, Cent. Dig. §§ 110-114; Dec. Dig. § 65.*] [Ed. Note. For other cases, see Insane Per2. INSANE PERSONS (§ 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*)-Conservator—

BORROWING 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. 88 110-114; 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, borrow-
incompetent 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 in-
the 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 com-
petent.
sons, Cent. Dig. § 122; Dec. Dig. § 98.*]
[Ed. Note. For other cases, see Insane Per-

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 judgment for plaintiff, from which defendant appeals, alleging error in the sustaining of the demurrer, in rulings in admissions of evi

dence, 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. The money, under the rules of conservator of an incompetent has no authority, 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 (§ 65*)-ConservatoRBORROWING MONEY.

It

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 assign. when the key of the safety deposit vault ments. The defendant objected to it as ir should be returned, and that he had assign- relevant, immaterial, and incompetent. 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 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 to him. There would be no equity, there

deposits.

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.

(85 Conn. 282)

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 -BRIBERY.

Where a contract with a salesman con

tains an illegal provision contemplating bribery of purchasing agents, the salesman can recover neither in law nor equity for services thereunder or expenses incurred in accordance with its terms.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 303, 408; Dec. Dig. § 138.*] 3. EVIDENCE (§ 437*)-LEGALITY OF OBJECT

-PLEADING.

Either party to a contract may plead and prove, in an action thereon, its illegal character.

Cent. Dig. §§ 2025-2029; Dec. Dig. § 437.*]
[Ed. Note. For other cases, see Evidence,
4. EVIDENCE (8 456*)-PAROL EVIDENCE-

ILLEGALITY OF CONTRACT-"BONUS."

Though an agreement to pay a "bonus" does not necessarily mean the payment of a paid beyond what is legally required, the word bribe, but generally means a sum given or may also be used to designate bribery; that where, in a contract for services as sales

So

For ether cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

man, there was no explanation of a provision for 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-IN

TENTION 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. Er. ror, and new trial ordered.

doned, and that there remains due the plaintiff 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

a

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 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 of the contract concerning bonuses. While 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

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