tills where they were kept on hand by the plaintiff. The plaintiff was told by the railroad company that the defendant did not receive from the railroad the goods which were shipped; but the plaintiff received no notice from the defendant that it would not receive them after the first shipment was made until August 18th, when the contract was broken, and until that date the plaintiff believed that the defendant would perform its contract. The plaintiff claimed and was allowed to recover for all goods shipped prior to August 18th, and to recover damages for the defendant's breach of contract on that date.

[1] It appears from the record that the trial judge neglected to comply with the rule (Practice Book, p. 269, § 12) which requires the judge to whom a draft finding is presented with a request for a finding to mark "Proven" or "Not Proven" against each paragraph of the draft finding, and the defendant has moved in this court that the case be recommitted in order that the omission may be supplied. It appears in the finding that several of the paragraphs of the draft finding were found proven, and, from the request for a correction of the finding, it appears that the judge was asked to incorporate the remaining paragraphs of the draft finding in the finding. His refusal to do so, and his memorandum in denying the request, show that no good could come to the defendant from a recommittal of the case. The motion is denied.

make the monthly shipments required by it in the belief that the defendant would carry out its part of the contract. The court finds that after the original shipment was made the defendant did not communicate with the plaintiff until August, when it wrote to the plaintiff, and broke the contract. No request has been made to correct this part of the finding, and no evidence is made part of the record showing that the finding is not correct. It appears, therefore, that the title to all goods shipped prior to the breach in August passed to the defendant, and were properly chargeable to it.

[5] It is claimed that the court erred in its construction of the contract and in its finding of facts in reaching the amount of damages which it awarded the plaintiff for the defendant's breach of the contract. The defendant's theory upon the trial and in the requests for a finding was that under the contract the defendant, in addition to its standing orders, was bound to reorder every pattern which it sold so that (the evidence tending to show that its monthly sales would just equal the amount of the standing orders) the amount of patterns on hand at the end of the five-year contract by reason of these reorders would be large, and under the contract this large accumulation of patterns would be returned to the plaintiff at a great loss to it. The court did not take this view, and we are asked to correct the finding by adding thereto the several paragraphs of the draft finding which relate to this question. [2-4] By the contract it appears that the We have examined the contract and the eviplaintiff was bound to deliver the shipments dence of the witness Brown, which has been of goods f. o. b. to the designated railroad made a part of the record on appeal, and in New York. When it had done that as to find no reason to correct the finding as claimany shipment contracted for, it had, as to ed. The defendant was clearly wrong in its such shipment, performed its part of the con- construction of the contract when, in paratract, and the title to the goods passed to graph 7 of its draft finding, it requested the the defendant. The defendant's attempted court to find that all patterns sold by the derepudiation of the contract not having been fendant would have been replaced by reoracquiesced in, the contract continued in force, dering the patterns sold at least once a and both parties to it were legally bound to week. The contract required only that the perform their parts of it as was held upon defendant should keep up its assortment of the former trial. The defendant now makes sizes of patterns by reorders. It was not reno serious claim that it was not bound to quired to reorder, every time it sold a patpay for the original shipment of goods tern of a particular style and size, another amounting to $316.35. But it claims that its pattern of that style and size to replace it. neglect to take that shipment from the rail- So long as it had on hand patterns of that road after the attempted repudiation of the style and size its assortment of sizes was contract constituted a breach of the contract, kept up. It is to be presumed that in sendand that the plaintiff could not properly ing the original stock the sizes most called thereafter make the monthly shipments, but for, the ordinary sizes, would be sent in conwas put to its action for damages for breach siderable number, while of the extraordiof the contract. Probably the defendant's nary sizes, those for which there would be litconduct in neglecting to take the goods from tle call, but few in number of any one size the railroad, whereby it would be unable to would be sent. So, too, when the defendant display them in its store pursuant to its had notice, as it did six months in advance contract, and its neglect, 15 days later, when of the date of discard as the evidence of payment therefor became due, to pay for Brown shows, that certain patterns would them, was sufficient (Sales Act, § 45) to jus- be discarded, it would not be for the intertify the plaintiff in refusing to proceed fur-est of either party to the contract that patther with the contract. It did not refuse to terns of the style to be discarded should, dur

reordered except to fill the immediate demands of the defendant's business.

It appears from the contract that the eighth, ninth, and eleventh paragraphs of the draft finding were not correct statements of fact. Damaged patterns, as the contract shows, could not be returned. The plaintiffs, therefore, would receive a profit on these the same as if they had been sold by the defendant. As the defendant was not called upon to reorder all patterns sold, and as some damaged patterns were inevitable, there was nothing before the court to establish the fact claimed in the eleventh paragraph, namely: That at the end of each semiannual discount period the defendant would have on hand the original stock of $300 worth of patterns, plus the monthly shipment. The whole claim of

the defendant thus failed. There was evi

dence from the witness Brown tending to show what the plaintiff's loss from the breach of the contract was, and, from this evidence, the court apparently acted in estimating the damages resulting to the plaintiff from the

breach of contract.

There is no error. All concur.

(88 Conn. 125)

FEUDL v. CITY OF NEW BRITAIN. (Supreme Court of Errors of Connecticut.

March 19, 1914.)

Appeal from Superior Court, Hartford County; Edwin B. Gager, Judge.

Action by Rudolph Feudl against the City of New Britain. From a judgment on a verdict directed for defendant, plaintiff appeals. Reversed, and new trial ordered.

There was evidence from which the jury might have found the following facts: The city of New Britain has a double sewer system. The house sewage is conducted to a distant filtration plant, and the storm and surface sewage into neighboring water coursin the district near the plaintiff's land is The surface drainage from the streets collected by a system of sewers, and discharged through a culvert into the bed of a small natural water course at a point shortly above the plaintiff's land. There are direct

es.

connections into these sewers from the roofs

of private houses, and surface water from privately owned land also finds its way into them. All of the watershed so drained is but a large part of it formerly drained into naturally tributary to the stream in question; the stream at points below the plaintiff's land. The defendant's sewer system greatly accelerated the run off from the watershed; but the natural channel of the stream from the Belden street culvert for some distance below the plaintiff's land was when the defendant's drainage system was planned and executed-large enough to carry off all the 1. MUNICIPAL CORPORATIONS (§ 838*)-TORTS -PRIVATE NUISANCE-DISCHARGE OF SEW-water which the system could deliver to it in times of the heaviest recorded rainfall; and, Where the sewerage system of a city drain-so far as the plaintiff's land is concerned, it ed into a natural water course, and covered the proved sufficient for two years after the sysland of a lower riparian owner with foul and offensive deposits, the city was liable in dam-tem was fully completed in 1908. Since then ages for a nuisance, notwithstanding the acts the adjoining proprietors, including the plainof third parties in filling in the channel of the tiff, have filled in their land, and the channel stream below, which also contributed to the result. below the plaintiff's land has become obstructed and in places filled in, so that it now no longer exists as a well-defined channel. Beginning in 1910, the plaintiff's land has been flooded at times of heavy rainfall from 8 to 10 times in the course of the summer for

AGE.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1787; Dec. Dig. § 838.*]

2. MUNICIPAL CORPORATIONS (§ 837*)-TORTS SURFACE WATERS DRAINAGE OR DIS

CHARGE.

Where a city by its sewerage system intercepted water which would naturally have drained below plaintiff's land and discharged it into the stream above such land, it was liable for damages caused by an overflow on such land, though the natural channel was sufficient to accommodate all such drainage and was rendered insufficient by lower riparian owners filling in their land below.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1786; Dec. Dig. § 837.*]

3. MUNICIPAL CORPORATIONS (§ 733*)-TORTS -EXERCISE OF GOVERNMENTAL POWERS.

Where the charter of a city (14 Sp. Laws, p. 350) gave it the right to take by condemnation proceedings any such rights, etc., in lands and water courses as were necessary for the disposition of its sewage, the city could not defend an action by a lower riparian owner for flooding his land on the ground that it was acting with a governmental capacity. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549, 1561; Dec. Dig. § 733.*]

a distance of 30 to 40 feet back from the bank of the stream, and the soil has been washed away so as to uproot and carry off vegetables planted therein about 30 times since 1910. The plaintiff has not filled in or obstructed the channel except as the discharge from the defendant's culvert may have washed the defendant's filled land into it. Connected with the defendant's drainage system are 51 catch-basins designed to catch and retain the solid matter washed from the streets. The contents of these catch-basins are liable to ferment and putrefy, and are in part carried into sewer pipes at times of heavy rainfall, and discharged through the Belden street culvert into the stream above the plaintiff's land. From time to time after being flooded by the discharge from this culvert, the plaintiff's land has been covered with a foul-smelling and offensive deposit, and the plaintiff and his family subjected to

annoyance, discomfort, and unsanitary in- above the plaintiff's land. The defendant

fluences.

Bernard F. Gaffney and Joseph G. Woods, both of New Britain, for appellant. James E. Cooper, of New Britain, for appellee.

BEACH, J. (after stating the facts as above). The trial court directed a verdict for the defendant on the ground that the natural channel of the stream was fully adequate to carry off the drainage turned into it, that the subsequent filling in and consequent insufficiency of the channel was in no respect chargeable to the defendant city, and that the city was not liable for continuing to discharge its surface drainage into a water course which, without its fault, had become inadequate to carry it away in times of heavy rainfall.

[1] Independently of any other consideration, we think there must be a new trial, because the jury would have been justified in finding that the city was maintaining a nuisance by discharging offensive sewage on the plaintiff's land. It is immaterial that third parties also contributed to the result. Watson v. New Milford, 72 Conn. 562, 45 Atl. 167, 77 Am. St. Rep. 345; Morgan v. Danbury, 67 Conn. 484, 35 Atl. 499.

could not have been made liable in damages for this wrong until some injury resulted

therefrom; but, if and when the channel became inadequate, and the plaintiff's land was flooded, the defendant would then become liable for such portion, if any, of the total damage as the jury might reasonably find to have been caused by the wrongful act of the defendant in so casting surplus surface water into the stream above the plaintiff's land. Sellick v. Hall, 47 Conn. 273.

[3] It would also follow from such a finding that the defendant could not successfully claim to be immune from liability because engaged in the proper execution of a governmental duty, for the defendant in constructing and maintaining this double system of sewers was acting under the authority of its special charter, which gives it the right to take by condemnation proceedings "any rights or easements in lands, water courses, or ways," which may be necessary for the disposition of its sewage. 14 Special Acts, p. 350.

The defendant has not so taken the plaintiff's rights in this stream, and therefore the defendant could not successfully claim to be acting within the scope of its authority from the state, in case the jury had found that it was asserting a right or easement in this water course which was inconsistent with and adverse to the plaintiff's rights as a lower riparian owner.

We also think that there was evidence from which the jury could reasonably have found that some part of the filling in of the channel below the plaintiff's land was deposited from the washing away of the land above such filling, and that such washing and filling was in some part attributable to the introduction of the surplus surface water into the stream above the plaintiff's land, and the consequent acceleration of the flow of the stream at and near that point. There is error, and a new trial is ordered. All concur.

That condition, if the jury should find it to exist, may be remedied by more frequent cleaning of the defendant's catch-basins, and the more important question is whether defendant is as against this plaintiff, entitled, under the circumstances indicated by the testimony, to continue to discharge this surface drainage into the stream, notwithstanding that the channel is no longer capable of carrying it away in times of heavy rainfall. The pleadings and the briefs of the parties treat the plaintiff as a lower riparian owner on a natural stream, and we accordingly adopt that view, although there is evidence which might justify a different conclusion. [2] The defendant city claims the right as a riparian owner to drain its premises into the stream, and so accelerate its flow, without liability to lower owners for the consequences. This claim assumes that the defendant was making a lawful and reasonable use of the stream. But there was testimony from which the jury might have found that, 1. NEGLIGENCE (§ 108*)-COMPLAINT-SUFFIas to about one-half of the area drained, the city had intercepted surface drainage which would naturally have found its way into the stream below the plaintiff's land, and diverted it into the stream at a point above the plaintiff's land.

It would follow from such a finding that, notwithstanding the channel was large enough in its natural condition to carry away both the normal and the surplus surface water without flooding the plaintiff's land, the defendant would be exceeding its rights as a riparian owner by casting such surplus surface water into the stream at a point

(88 Conn. 151)

VALIN v. JEWELL et al. (Supreme Court of Errors of Connecticut. March 19, 1914.)

CIENCY.

To state an action for negligence, the complaint must show a primary right in the plaintiff invaded by defendant's wrong, or breach of some duty owed by him to the plaintiff.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 174, 175, 179, 180; Dec. Dig. § 108.*]

2. LANDLORD AND TENANT (§ 164*) — INJURY

---

TO TENANT-USE OF STREET-TRAVELER.

The lessor of a house, the porch roof of which was without any means of carrying off water, which in consequence fell upon the quired by ordinance, the tenant slipped and sussidewalk and froze, in removing which, as retained injury, was not liable to the tenant for breach of duty to him as a traveler on the ad

jacent highway, since the tenant was not such walk and accumulate there, and in cold a traveler.

an one. It remains, therefore, to inquire | tion just made. Beyond this it does not apwhat duty the defendant owed to the plain- pear that those conditions were satisfied in tiff which would be invaded by the conduct respect to any portion of the building. It recited, and what its source. does not appear that any portion of it was retained in the landlord's control for the use of the several tenants as a means of access to the portions of the premises leased to them respectively. We may surmise that such was the case, but the isolated allegation that the plaintiff was one of the tenants occupying the building furnishes the only foundation for such a surmise which well might be unfounded. For aught that appears, the plaintiff himself, by the terms of his tenancy, may have assumed the duty of caring for any common approach or passageway. Special conditions creating a liability on the part of the landlord, where prima facie that liability does not exist, must be averred. Shindelbeck v. Moon, 32 Ohio St.