Hurd v. Hotchkiss

AínDítBWS, C. J. This action was brought.originally by John Hurd and the St. Regis River Lumber Company, jointly. Before answering, the defendants moved the court “ to drop the plaintiff John Hurd from the proceedings, because of misjoinder and because it appears he has no interest to be affected by this suit.” The court granted the motion. We incline to think this was error. Plaintiffs may ordinarily bring actions jointly or severally, as they consider their *479 rights to require; just as plaintiffs may claim the relief to which they conceive themselves to be entitled. If it turn out in the progress of the trial that the plaintiffs are not properly named, then the court mates such order as the circumstances require, or renders judgment against them all, or for only such of them as may have established a right to recover. This is authorized to be done by §§ 888 and 1108 of the General Statutes. These sections furnish the only authority of which we are aware, for a court to make an order that one or more of the persons joined as plaintiffs in a complaint shall be forbidden to prosecute; and seem to proceed on the theory that changes as to plaintiffs are to be made at their own request or by their consent. Chester v. Leonard, 68 Conn. 495; Pom. Rem. § 209. It seems to us that these sections do not authorize the court to strike from a complaint the name of a plaintiff, at the motion of the defendants and against the will of the plaintiffs themselves. Now that the whole case has been tried and all the facts are shown, it appears that this error is a harmless one. Upon these facts the joining of John Hurd as a plaintiff could make no difference in the result of the case. The widow of Charles B. Hotchkiss, and his son Charles L. Hotchkiss, were both witnesses on the trial; and each was asked to testify to statements made by Charles B. in his lifetime in respect to his conveying the land here in question. The court permitted the question and the'plaintiff objected. We think the evidence was admissible under § 1094 of the General Statutes; John Hurd was a witness and was asked this question: “ State whether or not at that first meeting of 'the board of directors (i. e. directors of the St. Regis River Lumber Company), they didn’t authorize you to manage the affairs of the company, make contracts to bind it, and generally to conduct its business? ” This question was objected to and ruled out. This ruling was correct. The question in form required the witness to declare whether or not the directors of the St. Regis River Lumber Company had done a certain act. The act of the directors of a corporation can be shown only by their *480 recorded vote. Savings Bank v. Davis, 8 Conn.191. If there had ever been a vote of those directors authorizing Mr. Hurd to manage its affairs, then the vote should have been produced. If such a vote had once existed and had been lost, then its terms might perhaps have been proved by oral testimony. But the question asked was not adapted for any such purpose. The statute of limitations is a bar to the recovery of all money damages. The time limited for the presentation of claims against the estate of Charles B. Hotchkiss expired September 1st, 1887, and this claim was not presented. That was ten years and more before this action was brought. Every complaint asking for specific performance of a contract to convey real estate is addressed to the discretion of the court, and will not be granted unless the contract is made according to the requirements of law, and is fair, equitable, reasonable, certain, mutual, on good consideration, consistent with policy and free from fraud, surprise or mistake. Bxjtlek,, J., in Patterson v. Bloomer, 35 Conn. 57, 63. See also Quinn v. Roath, 37 Conn. 16, Platt v. Stonington Savings Bank, 46 id. 476, Miles v. Dover F. I Co., 125 N. Y. 294, Colson v. Thompson, 2 Wheat. 336, King v. Hamilton, 4 Pet. 311, and Scott v. Alvarez, L. R. (1895) 2 Ch. 603. In the present case the court refused to decree the specific performance, holding that upon a fair preponderance of the evidence submitted in the case and the law applicable thereto, the plaintiff was not entitled to the relief sought. We fully approve of this decision. It is at least uncertain whether the contract ever required the conveyance the plaintiff claims. The deed made by the parties on the same day that the contract was made, and which was apparently intended to be a full compliance with the contract, did not convey the land now claimed. The parties were then all present, the matter was then fresh in their minds, they knew what the contract required. The omission at that time of the land now demanded, is in the nature of an admission that the contract did not require it to be conveyed. It was contemporaneous usage and is entitled to the highest weight in the construction of the contract. Broom’s Legal Maxims, 682; West *481 Hartford v. Board of Water Com’rs, 68 Conn. 823, 334; Cohens v. Virginia, 6 Wheat. 264, 418. Ten years and more elapsed before any claim was made by any one that this land was intended to be included in that contract. After an acquiescence for so long a time the inference becomes practically irresistible that it never was so intended. Derby v. Ailing, 40 Conn. 410, 436; Given v. Wright, 117 U. S. 648. This long delay is not explained. Meantime Mr. Hotchkiss died and his estate has been settled. No claim was made upon it within the time limited. It would be clearly unjust at this time to allow this claim. The judgment from which this appeal is taken is without error; more than that, it is the only judgment which could have been rendered in justice to the facts appearing in the record. There is no error. In this opinion the other judges concurred.