legal, and praying appropriate relief. The defendant demurred to the complaint, because "the said bridge property is real estate, and is subject to taxation under section 2331 of the General Statutes of Connecticut of 1902." The only reason of appeal assigned is the alleged error of the trial court in sustaining the demurrer for the reason stated.

M. Eugene Culver, for appellant. Daniel J. Douahoe, for appellee.

HAMERSLEY, J. (after stating the facts). There is no provision in the General Statutes of 1902 for the listing, assessing, and taxing of property owned by a stock corporation, except the special provisions contained (1) in section 2328, which provides for the listing, assessing, and taxing of all property owned by corporations whose stock is not liable to taxation in the same manner as the property of individuals; (2) in section 2331, which provides for the taxation of the corporations named therein, including bridge companies; (3) in sections 2422-2465, which provide for certain special taxes on the corporations therein named. The property of the plaintiff listed by the assessors of the defendant town is therefore illegally listed and assessed, unless authorized by the provisions of section 2331. That section includes by reference section 2332, and, reduced to its essential provisions as affecting the property of the plaintiff, may be stated thus: The secretary of every bridge company whose stock is not exempt from taxation shall annually in October file with the tax commissioner a statement showing the number of its shares and the market value thereof on October 1st. During the months of October, November, and December of each year the Board of Equalization shall determine the market value of the shares of each of said corporations as of the 1st day of October, and on the 31st day of December notify the tax commissioner and each of said corporations of the taxable value of the shares thus determined. On the last day of the following February each of said corporations shall collect from its stockholders and pay to the State Treasurer a tax of 1 per cent. on the market value of each share of its stock as thus determined, less the amount of taxes paid by such corporation upon its real estate in Connecticut during the preceding year, all of which real estate shall be assessed and taxed in the town in which it is located. The property of the plaintiff which the Middletown assessors listed and assessed is its "bridge property," and is defined by the assessors as including. the bridge structure built by the plaintiff across the Connecticut river, in pursuance of its charter, as and for a highway connecting the towns of Middletown and Portland, which bridge structure consists of the abutments, spans, and all other parts of the

structure which are not movable. It is admitted that the plaintiff does not own the real estate at the bottom of the river on which the piers supporting its bridge rest, and that the plaintiff does not own any land situated in Middletown except two pieces of land standing in the name of a trustee, and which have been duly listed and assessed and the tax thereon paid.

The contention of the defendant is not only that the words "real estate" may be used, to indicate a piece of land on which a bridge is built, as including both the earth and the structure attached to it, but that the Legislature, by the language used in section 2331, intended to say, and has said, that a bridge highway built and maintained as such by a bridge company chartered for that purpose, subject to the control of state commissioners appointed to see that the bridge structure and every part of it is maintained in safe condition for public use, is not included in the property of the corporation which it was the main purpose of that section to value and tax in the peculiar manner therein prescribed, but that such property is real estate which shall be listed, assessed, and taxed, in the town where it is situated, as the property of the corporation. This contention is plainly untenable. "Bridge companies" is used in the statute to indicate a corporation chartered to build and maintain a bridge highway similar in character to the turnpike highways maintained by turnpike companies chartered for that purpose. The property in such a highway, whether laid upon the surface of the ground or carried upon piers across a navigable river, has never been included under our laws taxing real estate, and is not included in the language of section 2331, which provides that the real estate in Connecticut owned by a bridge company shall be assessed and taxed in the town within which it is located. The real estate described in section 2331 is that and no other described in sections 2328 and 2329, which provide for the taxation of certain corporations upon their whole property in the same manner as individuals are taxed upon their property. This real estate is that described in section 2322 as real estate liable to taxation. That section makes no provision for the listing and valuation of bridge property, as defined by the assessors, as real estate liable to taxation in the hands of individual owners; and section 2331 does not authorize the taxation of any real estate owned by a bridge company, except that which, as the property of individuals, can be listed, valued, and assessed in the manner prescribed by section 2322 for real estate liable to taxation. The construction contended for by the defendant would defeat the main purpose of the section in making the special provision for the taxation of bridge companies, and would include under the definition of "real estate" liable to taxation, to be found in section 2322, turnpike, bridge,

and railroad highways, the railroad structure laid in streets in furtherance of their use as public highways, as well as the poles and other machinery used in the telephone and telegraph business that may be attached to or rest upon the soil. An examination of changes in the detail of provisions for taxing bridge companies and similar corporations only serves to confirm what is apparent upon reading the chapter concerning assessment of taxes as it stands in the Revision of 1902, namely, section 2331 provides for taxing a bridge company upon its property in the bridge highway it has built, and maintains in pursuance of its charter, in the manner therein prescribed, viz., through a valuation of its capital stock and the payment to the State Treasurer of a tax of 1 per cent. on that valuation, and does not authorize the listing, valuation, and taxation of this property in providing that all the real estate owned by the corporation, and liable to taxation in the same manner as that owned by individuals, shall be placed in the list of the corporation and valued, assessed, and taxed in the town in which such real estate is located. The defendant's demurrer is plainly insufficient, and should have been overruled by the trial court.

There is error in the judgment of the superior court. The other Judges concurred.

(77 Conn. 291)

MOORE v. GIDDINGS. (Supreme Court of Errors of Connecticut. Nov. 11, 1904.)

VARIANCE BETWEEN COMPLAINT AND JUDG

MENT.

1. Where the complaint is for false representations and deceit in the sale of a parcel of land as containing a certain number of acres, when, in fact, it contained much less, it is error for the court, after finding the facts, to render judgment as for breach of warranty.

Appeal from Court of Common Pleas, Litchfield County; Gideon H. Welch, Judge.

Action for fraud in the sale of land by Burton E. Moore against Lucy Giddings. From a judgment for plaintiff, defendant appeals. Reversed.

Richard T. Higgins, for appellant. Samuel A. Herman and Thomas F. Ryan, for appellee.

PRENTICE, J. The defendant, an aged woman residing in Winchester, was in 1898 the owner of a farm, unincumbered and without buildings, situated in Hartland. The plaintiff, a real estate agent, desiring the farm, applied to her for its purchase. An agreement for the sale was then entered into, and a conveyance afterwards made. The consideration paid was the plaintiff's note for $300, secured by a mortgage back. The complaint alleges that the plaintiff was induced to make the purchase and accept the conveyance by the defendant's false and fraud

ulent representations, upon which he relied, that the place contained 350 acres, more or less, or substantially 350 acres, whereas in fact it contained only 132 acres. These al legations the court found true, save an immaterial difference in the matter of actual acreage, and rendered judgment for the plaintiff to recover $480. It is not claimed that the plaintiff failed to receive the precise land for which he negotiated. The litigation arises solely out of the claimed fraudulent misrepresentations concerning the measurement of that which was negotiated for and conveyed. The deed correctly bounds the land, and adds the words, "containing 350 acres, more or less." The deed as originally prepared described the land as containing 300 acres, more or less. The plaintiff refused to accept it in that form, and at his request it was changed before delivery to read as now appears. The court was unable to find whether this change was made after execution or before, and also whether or not it was made with the defendant's knowledge.

The court, having found the facts, drew therefrom the following conclusions: (1) That the deed, in connection with the repre sentations and statements, constituted a warranty that the farm contained the stated acreage; (2) that the representations and statements were falsely and fraudulently made, with intent to defraud the plaintiff; and (3) that there was substantially the deficiency in acreage complained of; and rendered its judgment. The first of the defendant's claims of law was "that the deed signed and executed by the defendant, and subsequently changed and altered in her absence and without her knowledge and consent, was not the deed of the defendant, and was not such a deed as would entitle the plaintiff to claim damages for a breach of the covenants of warranty therein contained." This claim the court specifically overruled, for the reason that it contained an incorrect recital of the facts. The defendant's other claims of law were overruled generally.

It is reasonably clear from these facts and others disclosed by the finding that the court regarded the complaint as one for a breach of warranty, and the right of action established one of that character. In this the court was in error. The complaint is one for false representations and deceit, and the cause of action sought to be proven, and in fact proven, in so far as any was proven, was of that nature. This plaintiff's counsel not only concedes, but, in his effort to justify the judgment, emphasizes. He says that the action is one of fraud, and that the fraud alleged was found and judgment therefor, and for nothing else, rendered. In aid of his contention he points out that the court has found the misrepresentations, that they were made fraudulently and with the intent of inducing the plaintiff to purchase, that the latter believed and relied upon them, and that, being induced thereby, he purchased. This is quite

true, but it does not appear that the court found these facts in their relation to actionable fraud and with the essential elements of such fraud in mind. It appears that the court examined the evidence and stated its finding with respect to the bearing of the facts upon an action for a breach of warranty, and not with respect to their bearing upon an action of fraud. It cannot, therefore, be safely assumed that the examination was made and the conclusions reached and stated with a due regard for such a feature of actionable fraud, for instance, as the plaintiff's right to rely upon the representations under all the circumstances attending the situation. It is one thing to say that reliance was placed upon them, and quite another that such reliance was justified by the situation. In the present case reliance is found. Justification for the reliance, however, is not found, and any attempt to import the finding of such a fact into the language used would be unwarranted in view of the purpose for which it was used. Implications quite outside the scope of the court's field of inquiry and its purpose in expression would quite likely work injustice. It is unnecessary to pursue these considerations further than we have to show that harm would quite probably be done the defendant if the judgment rendered was to be supported upon the ground contended for by the plaintiff.

The other assignments of error need not be considered, as the questions involved may not again arise.

There is error, and a new trial is granted.

(77 Conn. 295)

CHASE v. WATERBURY SAV. BANK. (Supreme Court of Errors of Connecticut. Nov. 11, 1904.)

BAVINGS BANK-RULES OF BANK-ASSENT BY DEPOSITOR-REPAYMENT OF DEPOSITS-PAYMENT TO WRONG PERSON-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE OF DEPOSITOR-APPEAL-ASSIGNMENT OF ERRORS-SUFFICIENCY.

1. Under Gen. St. 1902, § 802, providing that the court on appeal shall not be bound to consider errors unless they are specifically stated in the reasons of appeal, an assignment that the court erred in charging the jury as certified to in the printed record, without pointing out the particular errors in a charge covering 12 pages of the printed record, raises no questions which the court is bound to review.

2. A depositor in a savings bank, who accepted from the bank and used a deposit book containing printed regulations relating to the liability of the bank for the payment of the deposit to others than the depositor, assented to the regulations, which became binding on both the bank and the depositor.

3. A savings bank agreeing that deposits and dividends withdrawn shall be paid only to the depositor, or his order or legal representatives, and then only on the depositor's book being presented, is, in the absence of any modifying agreement, liable for a payment made on a forged order of one who had fraudulently obtained possession of the deposit book, though the payment was made in good faith, and in the exercise of rdinary care, and in accordance with the general practice among savings banks.

4. A savings bank agreed with its depositors that deposits withdrawn should be paid only to the depositor or to his order, and then only on the depositor's books being presented, but that it would not be responsible to any depositor for any fraud practiced on it or by presenting a depositor's book and drawing money without the knowledge or consent of the owner. Held, that the bank was not relieved of its duty of exercising ordinary care in preventing payment of a deposit to a wrong person, though he presented a depositor's book, but the agreement furnished a complete defense for payments made in the exercise of ordinary care to a wrong person.

5. A savings bank negligently paying a deposit on forged orders to one who had fraudulently obtained the deposit book from the owner is not relieved from liability by showing that the owner was negligent.

6. On the issue as to whether a savings bank was negligent in paying a deposit to a wrong person, evidence held to warrant the jury in finding negligence on the part of the bank, making it liable to the depositor for the money paid. Appeal from Superior Court, Litchfield County; Alberto T. Roraback, Judge.

Action by Mary A. Chase against the Waterbury Savings Bank to recover savings deposits paid by the bank on forged orders. From a judgment for plaintiff, defendant appeals. Affirmed.

Nathaniel R. Bronson, for appellant. Frank W. Etheridge, for appellee.

HALL, J. From April 1, 1887, to September 26, 1900, the plaintiff made in person 25 deposits in the defendant's savings bank, which, with dividends added at the rate declared by the bank, amounted at the time of the trial, in March, 1904, to $3,230. The plaintiff has neither herself withdrawn any part of said sum, nor has she given any order for any payment to others. Upon four occasions between December 31, 1901, and March 3, 1902, the plaintiff's daughter Mrs. Keith, who, with her husband, lived with the plaintiff, obtained money from the bank, amounting in all to $500, by presenting the plaintiff's bankbook, of which she had fraudulently obtained the possession, and by presenting with the bankbook forged orders purporting to have been signed by the plaintiff, directing payment to be made to Mrs. Keith of the sums named in the orders. Early in April, 1902, Mrs. Keith confessed to her mother that she had drawn money upon the bankbook, but claimed that she could obtain no more without an order from the plaintiff, and offered to write to the bank and secure a reply which would satisfy the plaintiff, and a few days later read to her mother what purported to be a letter from the bank to the effect that no further money could be drawn on the plaintiff's account without an order from the plaintiff, and that it would be all right. Thereafter the plaintiff kept her bankbook locked up in a more secure place, but did not then notify the bank that her daughter had thus wrongfully obtained possession of the bankbook and drawn the money. On the 16th of April, 1902, Mrs. Keith presented at the bank to Mr. Merriman, the

defendant's bookkeeper, a forged letter of that date, purporting to have been signed by the plaintiff, addressed to the treasurer of the bank, representing that the plaintiff had accidentally destroyed her bankbook, and requesting that a new one be issued in its place, and further stating that the plaintiff was an invalid, and had sent her daughter Mrs. Keith to get the new book, and had inclosed an order for money. Mr. Merriman informed Mrs. Keith that a new book could not be issued until a bond had been given to the bank, and prepared and gave to Mrs. Keith a form of a bond, with instructions to have it executed by the plaintiff and some responsible person as surety. On the following day Mrs. Keith presented the bond to Mr. Merriman at the bank, with the plaintiff's name as principal, and the name of another person as surety signed thereto. Both signatures were forgeries. In the absence of the treasurer of the bank, and without inquiring as to the responsibility or existence of the person whose name appeared as surety on the bond, and without submitting the matter to the "board of direction," or to "a committee appointed for that purpose," Mr. Merriman issued and delivered to Mrs. Keith a new book, in the name of the plaintiff, with the balance due upon the first book transferred thereto, and at the same time paid to Mrs. Keith $300 upon a forged order presented by her, dated April 16, 1902, purporting to have been signed by the plaintiff, and directing said sum to be paid to Mrs. Keith upon the amount due upon the first book. Six payments, amounting to $1,700, were made by the bank to Mrs. Keith upon presentation of said second book with forged orders of the plaintiff; the last payment having been made on the 27th of October, 1902. The plaintiff had no knowledge of the existence of said second book, nor of the payment of any of the money drawn by her daughter thereon, until informed of these facts by the bank on the 1st of November, 1902, when she immediately obtained from her daughter the second book, and $20 of the money which she had fraudulently drawn. Said second book was issued, and all the payments upon both bank books were made, by the bank in good faith, and upon the belief that the letter and orders purporting to have been signed by the plaintiff were genuine; and the plaintiff gave no notice to the defendant that Mrs. Keith had fraudulently obtained possession of the first book, and that said letter and orders were forgeries, until November 1, 1902.

The following statement was printed in the plaintiff's bankbook:

"Take Care of This Book. If you lose it or mislay it give immediate notice to the Bank, as if it gets into improper hands you may be defrauded."

Among the by-laws printed in plaintiff's book were these:

"Art. 13. Dividends and money withdrawn

shall be paid only to the depositor, or to the depositor's order, or legal representative: but neither the principal nor interest of any deposit shall be paid to any person, unless the depositor's book of entries made by an officer of the corporation or of the direction shall be presented that such payments may be entered therein, or unless the depositor shall prove to the satisfaction of the board of direction, or a committee appointed for that purpose, that such book has been lost or destroyed, in which case the depositor or his legal representative shall lodge with the treasurer a written discharge."

"Art, 15. This bank will not be responsible to any depositor, or to his heirs or assigns, for any fraud that may be practiced upon any of the officers of this institution by forged signatures, or by presenting a depositor's book, and drawing money without the knowledge or consent of the owner. And all entries of money paid, made in the depositor's book by an officer of the Institution, shall be deemed good and valid evidence of money paid, and shall exonerate this bank from any liability on account of any fraud practiced in drawing the money of any depositor."

The above facts appear to have been proved at the trial beyond controversy.

Whether the officers of the bank exercised reasonable care in issuing the second book, and in making the payments to Mrs. Keith upon the first and second book upon the forged orders, and whether the plaintiff was negligent in failing to keep her first bankbook in a safe place, and in not notifying the bank that her daughter had fraudulently drawn money on the first book when she learned of it, in April, 1902, were among the disputed questions of fact at the trial.

The only properly assigned reasons of appeal are the denial of the defendant's motion for a new trial upon the ground that the verdict was against the evidence, and the failure of the trial judge to charge the jury in accordance with the specific requests set forth in the appeal. The last reason of appeal, that "the court erred in charging the jury as certified to in the printed record," is not a proper assignment of error. It fails to point out the particular errors complained of in a charge covering 12 pages of the printed record, and therefore raises no question which this court is bound to review. Section 802, Gen. St. 1902; Hayden v. Fair Haven & W. R. Co., 76 Conn. 355-365, 56 Atl. 613; Simmonds v. Holmes, 61 Conn. 1-9, 23 Atl. 702, 15 L. R. A. 253.

The substance of the several requests contained in the appeal may be fairly stated as these four requests to charge: First, that article 15 of the by-laws was sufficient authority to the bank for the payments made to Mrs. Keith; second, that her failure to notify the bank that Mrs. Keith had fraudulently drawn money on her deposit book when she first learned of that fact prevented the plaintiff from recovering the sums paid

by the bank to Mrs. Keith; third, that, if Mrs. Keith obtained possession of the deposit book through the carelessness of the plaintiff in her manner of keeping it, the plaintiff could not recover the money paid by the bank to Mrs. Keith by reason of her possession of the book; fourth, that the jury would not be justified in finding negligence on the part of the bank from the mere fact that signatures of depositors were not kept for the purpose of comparison, and that the fact that Mrs. Keith was a daughter of the plaintiff might be considered as partially excusing the officers of the bank for not having exercised greater caution.

By accepting from the bank and using, as she did, the deposit book, in which articles 13 and 15 of the by-laws were printed, the plaintiff assented to these regulations, and they became a part of the contract of deposit for the protection of the bank and the depositor, and binding alike upon both. Eaves v. People's Savings Bank, 27 Conn. 229-231, 71 Am. Dec. 59; Doulan v. Provident Institution, 127 Mass. 183, 34 Am. Rep. 358; Appleby v. Erie Co. Savings Bank, 62 N. Y. 12. By the language of article 13, in the absence of any modifying agreement the bank was authorized to pay deposits and dividends only to the depositor or his attorney, or in case of his death to his legal representative; and the bank could not avoid liability for a payment made upon a forged order to one who had fraudulently obtained possession of the deposit book, even by showing that such payment was made in good faith, and in the exercise of ordinary care, and in accordance with the general practice among savings banks. Eaves v. People's Savings Bank, supra. It was evidently for the purpose of relieving the bank from so great a liability that the provisions of article 13 were modified by those of article 15. It was undoubtedly learned from experience that the depositors of a savings bank were so numerous that they could not all be personally known to its officers, that many of them were unaccustomed to writing, that they frequently kept their bankbooks where they were accessible to others, and that therefore in some instances competent officers, in the exercise of proper care and caution, would fail to detect forgeries and prevent imposition by persons presenting deposit books. It was clearly to protect itself against losses from such impositions, and not from losses which it was its duty to prevent, and which by the exercise of ordinary care it could prevent, that article 15 was adopted. By its provisions the bank was not relieved from its duty to exercise ordinary care to prevent payment to the wrong person, even though such person presented a deposit book, and in accepting this regulation the depositor agreed to bear the loss of a payment to the wrong person presenting the deposit book only to the extent that the bank acted reasonably. Ferguson v. Harlem Savings Bank (Sup.) 86

N. Y. Supp. 825; Kummell v. Germania Savings Bank, 127 N. Y. 488, 28 N. E. 398, 13 L. R. A. 786; Sullivan v. Lewiston Savings Inst., 56 Me. 507, 96 Am. Dec. 500; Ladd v. Augusta Savings Bank, 96 Me. 510, 52 Atl. 1012, 58 L. R. A. 288; Gifford v. Rutland Savings Bank, 63 Vt. 108, 21 Atl. 340, 11 L. R. A. 794, 25 Am. St. Rep. 744; Brown v. Merrimac River Savings Bank, 67 N. H. 549, 39 Atl. 336, 68 Am. St. Rep. 700; Wegner v. Bank, 76 Wis. 242, 44 N. W. 1096. The by-law in question was therefore not a sufficient authority to the bank for payments negligently made to Mrs. Keith, and the court did not err in not charging the jury in accordance with the first request.

Nor did the trial court err in not charging in accordance with the second and third requests. Article 15 furnished a complete defense against liability for payments to Mrs. Keith made by the bank in the exercise of reasonable care. The second and third requests must therefore rest upon the claim that, under the doctrine of contributory negligence or of estoppel, the defendant would not be liable even for payments negligently made, if it also appeared that the plaintiff was negligent in not notifying the bank of the fraudulent acts of Mrs. Keith, or in not taking proper care of her bankbook. If the question whether the plaintiff was negligent in these matters were a material one in this case, it may well be doubted whether the jury would have been justified in finding, upon the facts, that the exercise of reasonable care by the plaintiff to prevent the bank from being imposed upon required her to give notice in April, 1902, of her daughter's fraudulent acts, or to keep her bankbook more securely than she did before she learned that her daughter had wrongfully obtained possession of it and drawn money upon it. The plaintiff knew that, by the by-laws of the bank, "neither the principal nor interest of any deposit" would be paid to any person "unless the depositor's book" should be presented. Upon learning of her daughter's acts she at once put the book where her daughter could not get possession of it. Can it be said that ordinary care required the plaintiff to anticipate that her daughter, without having possession of the deposit book, might continue to draw her money, by procuring, as she did, by fraud and forgery, a new book to be issued? As to the plaintiff's alleged carelessness in leaving her bankbook where Mrs. Keith could obtain possession of it, it appears that she kept it locked with other valuable papers in a bookcase drawer in the hallway on the second floor of her dwelling, with the key in her own sleeping room. Can depositors in savings banks be reasonably required, under ordinary circumstances, to take greater precautions in keeping their bankbooks? And especially could the plaintiff be reasonably expected to take greater precautions to prevent her own daughter from obtaining possession of the