Lorch v. Page

• Decision Date: 23 December 1921
• Citation: 115 A. 681,97 Conn. 66
• Court: Connecticut Supreme Court
• Parties: LORCH et al. v. PAGE.

115 A. 681

97 Conn. 66

LORCH et al. v. PAGE.

Supreme Court of Errors of Connecticut.

December 23, 1921

Error From Court of Common Pleas, Litchfield County; James P Woodruff, Judge.

Action by Charles W. Page against Harold J. Lorch and others. Judgment for plaintiff before a justice was reversed on error to court of common pleas, and plaintiff appeals. No error.

Complaint in summary process brought before a justice of the peace alleged that the lessor Page, plaintiff gave due notice to the lessees Lorch, defendants, in the manner prescribed by statute, to quit possession of the premises on or before July 1, 1920. Defendants Lorch denied this allegation, and further pleaded, in effect, that no notice was left with them other than a document which, by the sheriff's return thereon, purported to be " a true and attested copy of the original notice," but was not a duplicate of the original notice.

The parties went to trial without demurring or joining issue upon this special defense. On the trial as appears in the bill of exceptions, Page offered in evidence the original copy of a notice to quit, viz.:

" To Harold J. Lorch and Mary E. Lorch, each of the town of Kent; I hereby give you notice that you are to quit possession of the land, buildings and premises now occupied by you and owned by me (which land, buildings and premises are located at South Kent, town of Kent, county of Litchfield and state of Connecticut) on or before the first day of July 1920.

" Dated at New Milford, Conn., this 18th day of June 1920. Charles W. Page,

" By John S. Addis, His Attorney."

Upon this notice was indorsed:

" State of Connecticut, County of Litchfield-ss.:

" Kent, June 19, 1920.

" Then and there I left at the usual place of abode of Harold J. Lorch and Mary E. Lorch a true and attested copy of the original notice to quit possession.

" Attest: Frank J. Horsford,

" Deputy Sheriff."

The defendants Lorch objected because the sheriff's return showed that they received only a copy of the original notice to quit, whereas the statute required that duplicate copies must be made, one of which must be served upon the defendants. The court overruled the objection, and admitted the notice over the defendants' objections. No other proof of service of the notice to quit was offered.

A writ of error was taken from the judgment of the justice of the peace in favor of plaintiff Page to the court of common pleas, where the court held that the justice erred in admitting the notice and in rendering judgment for Page upon the ground that the notice to quit served upon Lorch was not a duplicate copy of the notice to quit required by the statute. From this judgment Page, defendant in error and appellant, appealed.

John S. Addis, of New Milford, and Leonard J. Nickerson, of Cornwall, for plaintiffs in error.

Robert J. Woodruff, of New Haven, for defendant in error.

WHEELER, C.J.

The trial court sustained the plaintiffs in error Lorch in their claim that the notice to quit served upon them was not a legal notice, in that it was not a duplicate copy, but was merely a true and attested copy of the original notice. No other proof of service of the notice to quit was made than the officer's return. In the statute as first enacted (Public Acts 1806, p. 729), it was provided that a duplicate copy of the notice should be delivered to the lessee, or left at his place of residence, in the presence of at least one credible witness.

In the Revision of 1875, p. 491, the words " by a proper officer or indifferent person" were substituted for " in the presence of at least one credible witness," so that this portion of the statute has since read:

" Duplicate copies of such notice shall be made, one of which shall be delivered to the lessee, or left at his place of residence, by a proper officer or indifferent person."

And since this revision the service of the notice to quit has been by an officer or an indifferent person. Conforming to service in civil actions, the return of the officer or indifferent person made upon the duplicate copy not served upon the lessee has been accepted as prima facie proof of the fact of service.

The sole question raised upon the appeal is whether a true and attested copy of the original notice is the duplicate copy of the notice to quit which the statute requires to be served in order to constitute a legal notice. Under our law this statutory remedy is to be construed strictly. Colt v. Eves, 12 Conn. 259; White v. Bailey, 14 Conn. 271.

" Duplicate" as applied to any form of written instrument has a determined and unvarying meaning. Burrill's definition has been frequently approved and quoted by the courts of this country.

" That which is double, or twice made; an original instrument repeated. A document which is the same as another, in all essential particulars. *** Sometimes defined to be the copy of a thing; but, though generally a copy, a duplicate differs from a mere copy, in having all the validity of an original." 1 Burrill's Law Dictionary (Ed. 1859) p. 526.

Bouvier's Law Dictionary (Rawle's 3d Ed.) p. 958, defines it as:

" The double of anything. A document which is essentially the same as some other instrument. A duplicate writing has but one effect. Each duplicate is complete evidence of the intention of the parties."

The War Revenue Act of 1898 (30 Stat. 448) required a stamp to be affixed to each bill of lading and to each duplicate thereof, and the Circuit Court of Appeals thus construed the word " duplicate" in this act:

" We cannot help thinking that in the business world there is a plain distinction recognized between a duplicate and a copy, and that the former is understood to be one of two instruments, each of which is original, and intended to have the force of an obligation irrespective of the other, and that a copy is understood to be a transcript of an original; having the form, but not the essence, of an obligation."

See Wright v. Mich. Cent. R. Co., 130 F. 843, 846, 65 C.C.A. 327, 330. The court cites as its authority Burrill's definition, and that in 10 Am. & Eng. Ency. of Law (2d Ed.) 318, where " duplicate" is defined as:

" A document which is the same in all respects as some other instrument, from which it is indistinguishable in its essence and operation."

The laws of a fraternal order provided that, when a beneficial certificate is lost or destroyed, the member insured is entitled to a duplicate certificate. In determining that the new certificate issued was not a duplicate certificate the court said:

" A duplicate has been judicially defined to be an original instrument reproduced, not a new agreement, but merely written evidence of the lost instrument to take its place. It must be the same in all other respects as some other instrument from which it is distinguishable." A. O. U. W. v. McFadden, 213 Mo. 269, 287, 111 S.W. 1172.

the statute of Michigan required an assignment for the benefit of creditors or a duplicate to be filed with the county clerk. The court held:

" A filing of a copy of the assignment, instead of an original or a duplicate, was not a compliance with the statute. A copy is a transcript of an original writing *** and may be made by anybody. A copy cannot be given in evidence unless proof is made that the original is lost, or is in the power of the opposite party. While a duplicate is the double of anything, *** it is either one of the two originals, both of which are executed by the same party or parties, and may be offered in evidence." McCuaig v. City Savings Bank, 111 Mich. 356, 358, 69 N.W. 500.

In Grant v. Griffith, 39 A.D. 107, 56 N.Y.Supp. 791, the court, construing the word " duplicate" in an act providing that the contract for the sale of certain articles shall be in duplicate, held an execution in duplicate means that there must be two originals of the same tenor, so that a copy will not be a duplicate. State ex rel. Graef v. Forest County, 74 Wis. 610, 43 N.W. 551; State ex rel. Fenelon v. Graffam, 74 Wis. 643, 43 N.W. 727; Dakota Loan & Trust Co. v. Codington County, 9 S. D. 159, 68 N.W. 314, 316; Maston v. Glen Lumber Co. et al. (Okl.) 163 P. 128; Reeves & Co. v. Martin, 20 Okl. 558, 94 P. 1058; Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S.W. 608, 27 Am.St.Rep. 861; 10 R. C. L. § 352, p. 1149.

Webster (1890 Ed.) defines " duplicate" as a law term to be:

" An original instrument repeated; a document which is the same as another in all essential particulars, and differing from a mere copy in having all the validity of an original."

The Century Dictionary and New Standard Dictionary similarly define this word.

Our research has failed to find an authority which defines " duplicate," or construes its use in a statute, as varying from that given by these authorities. It has sufficiently appeared that a copy can never be a duplicate copy. Nor can a " true copy" or a " certified copy" be a duplicate copy.

The act relating to the deportation of Chinese laborers authorized the procurement of a duplicate certificate of residence. The court held that " duplicate" was not synonymous with " true copy." Dillard v. U. S., 141 F. 303, 308, 72 C.C.A. 451. the statute of Indiana required a duplicate of a certificate of incorporation to be filed; the court held that the statute was not complied with by filing a certified copy; that the term " certified copy" is not synonymous with " duplicate." A " duplicate," it held, " must be executed by the same parties *** with the same formalities *** as an original." Nelson v. Blakey, 54 Ind. 29, 36.

These authorities...