This action is brought to recover installments of $28 per week, alleged to be due under the terms of a written contract, and no other relief is asked. The contract is styled a partnership contract, but we think it is rather a contract by which the plaintiff was to furnish certain cows for the use of the defendant in the milk business for six years at the specific rate of $28 per week. It is not, however, under the pleadings and reasons of appeal, necessary to determine whether the contract is technically a partnership contract or not.
The reasons of appeal relate to claimed errors in the finding, to the rule adopted as to notice, and to the measure of damages. The claimed errors in the finding relate to some twenty-eight paragraphs of the draft-finding and the finding. The evidence certified to this court does not show any sufficient reason for disturbing the finding as corrected by the trial court; and, further, the errors relate substantially to subordinate matters immaterial to the disposition of the case, in view of the terms of the contract as we interpret them.
The decisive reasons of appeal turn upon the proposition that the defendant was under a duty to notify the plaintiff as the plaintiff's cows successively became incapacitated, and that, failing to do so, he is precluded from availing himself of the defense that the plaintiff did not perform his obligation as to replacement of cows. *Page 208
By the express terms of the contract, in the paragraph set out in the statement of facts, the duty of replacement is imposed as to the plaintiff's cows only. The expense of replacement is to be equally divided. The substituted cows are to be the plaintiff's. The contract is silent as to which of the parties shall purchase or take the initiative in purchasing, the contract providing only that the parties are to stand the expense equally; and further, the contract is entirely silent upon the question of notice of disability of cows. The contract is drawn, apparently, upon the theory of equality of information, as in a partnership. It appears, however, from the finding, that the cows had been furnished and the business was under way some time prior to the execution of the contract, that the plaintiff loaned the defendant money for the purchase of the farm on which the business was conducted, payable in weekly installments, all of which were paid by September, 1915, thus giving occasion for weekly communication between the parties, that defendant visited the plaintiff frequently for business reasons, and that the plaintiff frequently passed the farm where the cows were kept, and that the farm was readily accessible from the plaintiff's residence in New Haven.
The duty of notice, if it exists, must be found in the contract, or must arise as a matter of common fairness and equity from the circumstances of the case. No such duty exists under the terms of the contract, nor do the facts disclose any such duty. Under the contract it was as much the duty of the plaintiff as of the defendant, to keep informed as to the condition of the cows. Where the plaintiff is basing his right of action upon performance, he must meet the burden of proof of showing that he used care and was diligent in inquiry and inspection and in the performance of the obligation to do his part toward replacement or substitution, *Page 209 before he can successfully demand the payment of the $28 per week provided for in the contract. The action is specifically upon the contract, and the plaintiff cannot recover without showing affirmatively that he has done his duty with respect to the maintenance of the full quota of cows upon which his weekly income of $28 is based.
But the finding further shows that the plaintiff in fact had sufficient notice and knowledge to put him on inquiry and charge him with neglect if he failed to see to the replacement of disabled cows. The contract itself recognized the probable necessity of replacement. In two early cases he had specific notice to replace. About June, 1913, he had a general notice, and at that time, and in recognition of the serious burden of replacement, made an offer of $500 to buy off the obligation, thus recognizing most fully the burden and the duty.
The plaintiff claims that certain payments of $28 per week, made after November, 1915, and after the number of plaintiff's cows had been reduced to three, misled the plaintiff into supposing the number of cows was satisfactory. These, however, were delayed payments, and the trial court very properly held that whether these payments were made to cover arrearages or under a misconception by the defendant of his rights under the agreement, that should not preclude the defendant from asserting his rights based upon failure of the plaintiff to keep up his quota of cows. Moreover, the fact that by the contract the plaintiff was for six years to receive annually about ninety per cent of his investment, should have made the plaintiff alert to keep up his end of the agreement. But the finding shows that after he made his offer to buy off his obligation for replacements, in 1913, the plaintiff made no inquiries and lost all further interest in the *Page 210 business except to collect his $28 per week. We think that the plaintiff did not perform his contract, and that no conduct of the defendant is shown that estops him from making a defense in an action to recover full weekly payment based on the plaintiff's keeping up his quota of cows.
If this is so, the court would have been justified in rendering a judgment in favor of the defendant. The court did not do this, but rendered a judgment for three twenty-fifths of $28 per week, apparently upon the theory that the weekly payment was apportionable in the ratio of the number of cows actually on the farm to the whole number required by the contract, and to that extent recognized the justice of the counterclaim based on the plaintiff's failure to replace. It is not necessary to determine whether the payment was properly apportionable in an action on a contract of this kind, or whether that apportionment fairly met the defendant's counterclaim, nor is it necessary to discuss the plaintiff's claims of error as to the measure of damages. The defendant is not claiming error. If, as we hold, the plaintiff did not establish performance and so was not entitled to recover at all in an action based on the contract alone, he cannot complain because the court, in a very manifest attempt to do substantial justice, disregarded the form of the action and did apportion the payments. As to the plaintiff, the judgment was too favorable.
One other reason of appeal should perhaps be noticed, which is that the court failed and neglected to certify the evidence upon which it based certain paragraphs of the finding. The record shows that all of the evidence requested by either party was duly certified and made part of the record. The statute, § 5830, imposes upon the trial judge the duty of certifying, in addition to the evidence claimed by the parties, "any other *Page 211 evidence deemed by the judge to be material." InRowell v. Ross, 89 Conn. 201, 93 A. 236, the judge certified the evidence claimed, and said that that was "`not all the evidence upon the subjects . . . mentioned nor the most trustworthy part of such evidence," but did not certify such other evidence; and this was held to be error as not complying with the requirements of the statute. If no evidence other than that claimed by the parties is certified, and it does not affirmatively appear from the record that there was any other evidence which the judge deemed material, it will be presumed that the judge performed his duty and that there was no other evidence deemed by him material.
There is no duty of certification independently of the statute.
There is no error.
In this opinion the other judges concurred.