Scott v. Hull , 8 Conn. 296 ( 1830 )

Hosmer, Ch. J.

The plaintiff’s action is covenant on an indenture, stipulating to support him and his wife, during their natural lives; and the parties joined issue on the defendant’s plea of performance. The plaintiff was permitted to go forward in the proof and argument; and to this an objection is made.

In covenant, there is no general issue; and the defendant, by his plea of performance, assumed the burden of proof, and equally as on a plea of full payment, his was the right of opening and closing the argument. 1 Chitt. Plead. 482. 2 Chitt. Plead. 481, 627.

But the error of the court is no ground for a new trial. The permitting the wrong party to have the first and last word implies no injustice in the verdict of the jury; and to grant a new trial for a reason so insufficient, would be the exercise of a very unsound discretion. See Comstock v. Hadlyme Ecclesiastical Society, ante 254.

The construction of the covenant that the defendant was alone obliged to support the plaintiff and wife at his dwelling-house, was, undoubtedly, correct, and in conformity with the determination of this Court, in Brown v. Brown, 4 Conn. Rep. 269. and Johnson v. Johnson, 4 Conn. Rep. 407. Indeed, the various stipulations of the covenant indicate this intention ; and the meaning of the parties is more obvious and unquestionable, than it was in either of the preceding cases.

There exists no objection against the charge, by reason of the omission to instruct the jury, that in estimating the quality of the clothing to be furnished, regard was to be had to the amount of the consideration received. The covenant, for its construction, depends on the express agreement of the parties, and not on the consideration of the contract; and an explicit rule was given on the subject. The defendant was to keep the plaintiff and wife in as good clothing as they had at the execution of the covenant.

That the defendant obliged himself, if the plaintiff, when absent from the defendant’s dwelling-house, should be taken sick and be incapable of returning, to supply him with medical aid and attendance, is unquestionable. The words of the contract, unrestrained as they are by the subject matter or any stipulation whatever, reach to this extent; and the opposing supposition is equally adverse to reason and common humanity. On this ground, then, there exists no objection to the judge’s charge.

The omission to supply the plaintiff and wife with a conveyance to and from a place of public worship, rests on no foundation. How fit and reasonable soever this may have been, it is a conclusive reply to such a claim, that the defendant entered into no covenant on this subject.

There exists no doubt that the determinations of the judge on the circuit, were entirely correct; and for this reason, I would not advise a new trial.

The other Judges were of the same opinion.

New trial not to be granted.