Swan v. City of Bridgeport

• Decision Date: 05 January 1898
• Citation: 70 Conn. 143,39 A. 110
• Court: Connecticut Supreme Court
• Parties: SWAN et al. v. CITY OF BRIDGEPORT.

39 A. 110

70 Conn. 143

SWAN et al.

v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

Jan. 5, 1898.

Appeal from court of common pleas, Pairfield county; George P. Carroll, Judge.

Action by Swan & Bushnell against the city of Bridgeport to recover damages for the default of the sheriff of the defendant city. Facts found and judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings of the court. No error.

Section 21 of the charter of the city of

Bridgeport (10 Priv. Acts, p. 519) provides that: "The sheriffs of said city shall severally have, within the limits of the jurisdiction or the city court, the same power and authority, and be liable to the same suits or penalties for neglect of their official duty, to all intents and purposes, as sheriffs by law now have and are; and the said city shall be liable for the defaults of its sheriffs in their offices." The complaint describes the default of the city sheriff as follows: On said 17th day of September, 1894, the said Swan & Bushnell had a valid claim against one Edward Klaus, of Bridgeport, Conn., to the amount of $240, which said claim was of such a nature that the body of said Klaus was liable to be attached therefor, and have execution levied thereon to satisfy the same. On said day, Swan & Bushnell, through their attorney caused to be placed in the hands of said Dwight Thompson, a sheriff of said city of Bridgeport, a writ, legally issued and signed, commanding him, the said sheriff, to attach, to the amount of $400, the goods or estate of said Klaus, and, in want thereof, his body; and the sheriff, being unable to find any property of the said Klaus, did attach his body, to respond to the demand of said writ, and took said body into his possession. Immediately thereafter, while the body of said Klaus was still in his possession, he, the said sheriff, negligently and carelessly permitted him, the said Klaus, to escape from his custody; and the said Klaus, by means of said carelessness and negligence of the sheriff, was enabled to so escape, and did flee from said sheriff, out of his jurisdiction, and out of the state of Connecticut, where he has ever since remained. After said escape said sheriff made no further efforts to serve said process, and did not otherwise serve the same than as stated, and did not return said writ to the court to which it was returnable. The said Klaus owned no property of any kind that can be taken to satisfy this claim of said Swan & Bushnell, and by his said escape from said sheriff, and by said misconduct and negligence of said sheriff as aforesaid described, the said Swan & Bushnell have lost their said claim, and all chance to secure the same or to enforce payment thereof.

The following are the material averments of the complaint of the plaintiffs against Klaus, and under which Klaus' body was attached as above described: (1) On the 20th day of May, 1894, the defendant obtained a loan of the plaintiffs to the amount of $240, and gave them therefor a certain note of that date for said amount, signed by R. Klaus, Mary Klaus, Fred Hardy, and Marshall E. Gray, payable to the defendant's order, and indorsed by him. (2) Said names of the makers of said note were forged and counterfeited. (3) The defendant, at the time he obtained said loan upon said note, knew that the said names were forged and counterfeited, but represented that they were genuine, with intent to defraud the plaintiffs. (4) The plaintiffs believed that said names were genuine, and, relying upon said representation, they loaned the said defendant said money. (5) Said note is still unpaid, and in the possession of the plaintiffs, and the defendant is wholly irresponsible.

The following facts found by the trial court are more or less material to the questions involved in this appeal: During the time of the dealings that the plaintiffs had with Edward N. Klaus, referred to in the complaint, the latter was conducting a saloon business in Bridgeport. Apparently, he owned the saloon (that is, the stock in trade and fixtures), and he so told the plaintiffs when they first advanced him money. The plaintiffs believed that he owned the business which he was conducting, both in consequence of what he told them, and also in consequence of the way in which the business appeared to be carried on. as a matter of fact, during the latter part, at least, of the time Klaus conducted the saloon, a brewing company owned the saloon and its business, and paid Klaus a salary for his services. Either Klaus had bought the saloon, and had sold it to the brewing company, while still continuing in charge of the business, some time before he absconded, or else he never owned it. The interest of the brewing company in the saloon was not known to the plaintiffs until about the time Klaus absconded. On February 20, 1894, one Ernest Hockheimer, Jr., indorsed over to the plaintiffs a promissory note executed in his favor by Klaus. The plaintiffs paid Hockbeimer $60 for the note. Its face value was considerably more than what the plaintiffs paid for it. Whether the note was then not due, or was overdue, did not appear; nor did the nature of the indorsement appear,—whether in blank, or with a waiver of demand and notice, or otherwise. On February 21, 1894, the plaintiffs paid Klaus $98.45 for a note in favor of Klaus, apparently given by one Marshall E. Gray, and indorsed by Klaus. The amount of this note, and the time when it became due, did not appear in evidence; nor did it appear whether demand and notice were waived in the indorsement of the note. Gray was known to the plaintiffs as an owner of real estate and other property. At this time Klaus told the plaintiffs—and they believed him—that the note to Hockheimer represented a part of the purchase price of the saloon business which he said he had bought of Hockheimer, and that the Gray note represented goods that Gray had bought of Klaus. So far as Gray's signature to the note bearing his name was concerned, it was a forgery, and Gray did not owe Klaus anything. Klaus knew this note was forged. The plaintiffs bought and paid for the note in consequence of what Klaus said about his affairs, and because he said the note was given by Gray. On March 6, 1894, the plaintiffs, also because of their belief in Klaus' ability and business condition, as represented by him, loaned him $30. On May 20, 1894, the plaintiffs, who had been pressing Klaus for some time to pay the notes and the loan, told him that he must pay the moneys, all of which were then due them, or else he must do something to secure them. Klaus accordingly suggested that he get a note from his sister, Mary Klaus, who was known to the plaintiffs as owning property, and from Gray. The plaintiffs agreed to this proposition, and wrote out a joint and several note for $240, which was the correct total amount due them upon the two other notes and from the loan, as then ascertained and agreed by the plaintiffs and Klaus, payable on demand after May 20, 1894, to the order of Edward N. Klaus, at the office of the plaintiffs, for value received. The same day Klaus returned with the note apparently bearing the signatures of his sister, Mary, and of Gray, as makers, and of R. Klaus and of Fred Hardy, also apparently as makers, who, however, as he said, were witnesses. Klaus indorsed this note in blank, and waiving demand and notice. The plaintiffs accepted the note in satisfaction of their other claims, under an understanding that he was to pay $10 a month on it until paid. At the same time they gave up to Klaus the other two notes, in consequence of their belief in the genuineness of the new note then received by them, and given them by Klaus as a genuine note. Whether or not at that time Klaus had enough property to make it possible to collect the notes from him, did not appear. As a matter of fact, the signatures of Mary Klaus, Marshall E. Gray, and Fred Hardy on this note were forgeries, and Edward N. Klaus knew them to be forgeries. What the plaintiffs did in the way of advancing moneys to Klaus, giving up notes, extending his time for payment, and altering their position generally in their dealings with him up to this time, bad been done in consequence of his false and fraudulent representations as to his business affairs, and as to the names appearing on the notes. Two payments of $10 each were made on this last note. Early in September, 1894, the plaintiffs discovered that the names of the makers of this last note were forgeries. On September 17, 1894, the plaintiffs caused to be issued a writ, with its accompanying complaint, dated on that day, directed to the sheriff of the county of Fairfield, his deputy, or either sheriff of the city of...