author: Pitney, V. C.

text:
    Christian Feigenspan, a corporation, v. Joseph Nizolek.
    [A'fgued May 31st, 1906.
    Decided July 10th, 1906.]
    1. Evidence held to show that, when defendant signed it, he fully understood the nature and effect of an agreement to sell complainant’s beer exclusively for five years.
    2. Though an agreement that defendant should sell complainant’s beer exclusively for five years did not specifically bind complainant to furnish it at any time, where complainant tendered itself ready to furnish it to him on the usual terms, defendant could not purchase of other brewers so long as the complainant continued to furnish beer to him at reasonable rates and of good quality.
    3. As a general rule, where a chancery court has concurrent jurisdiction with the law courts of a cause brought in equity, the defendant should take his objections to the jurisdiction on the ground that complainant has an adequate remedy in law early in the action, either by demurrer or by answer, or it will be waived.
    4. Where complainant loaned a specified sum of money, large in comparison with the value of the land mortgaged as security, and incurred trouble and risk in the transaction to obtain from defendant an agreement to sell complainant’s beer exclusively for five years, there was sufficient consideration to support the agreement.
    5. Where, on August 16th, complainant loaned defendant $4,800 for one year on a real estate mortgage, in consideration of defendant’s agreement to sell complainant’s beer exclusively for five years, a voluntary discharge of the debt on December 26th did not deprive complainant of the right to enforce the agreement.
    6. In considering what is an adequate remedy at law, the courts will take into consideration, not only the question of the multiplicity of suits, but also the pecuniary responsibility of the defendant.
    7. Complainant had no adequate remedy at law, where defendant broke an agreement to sell complainant’s beer exclusively for five years, because of the difficulty of ascertaining and proving in an action of law the amount of beer defendant had sold in violation of the agreement, the difficulty' of showing the profits complainant would have made, the necessity of a multiplicity of suits, and the uncertainty of the pecuniary responsibility of defendant.
    answer and proofs.
    Tlie object of the bill is to enforce a written contract by enjoining the breach of a negative covenant therein. The contract is as follows:
    “Know all men by these presents, that I, Joseph Nizolek, of the city of Elizabeth, county of Union and State of New Jersey, in consideration of the sum of one dollar and other valuable considerations, do hereby agree to purchase from Christian Feigenspan, a corporation, all ales, lager beer and porter as sold in my saloon at number seventy-three Florida •St., in the city of Elizabeth, New Jersey, for the period of five years.
    “And I further agree that I will not sell or offer for sale any ale,-lager beer or porter in my saloon at number seventy-three Florida St., in thedty of Elizabeth, New Jersey, except that manufactured by the said Christian Feigenspan, for the same period as above mentioned; and it is further understood that this agreement is to bind the successor or successors of the said party of the first part in the purchase of the property or said saloon business: and the said party of the first part agrees not to dispose of said saloon business unless his purchaser shall sign the above stipulation relative to the sale of the beers, ales and porter of the said party of the second part exclusively.

      “In witness whereof, X have hereto set my hand and seal this sixteenth of August, nineteen hundred and five.
    “Joseph Nizolek. |l. s.2
    “Signed, sealed and delivered in the presence of
    “Abram H. Oornish.”
    The allegation of the bill is that the contract was part of an arrangement by which the complainant loaned to the defendant the sum of $4,800 to enable him, the defendant, to purchase the premises mentioned in the contract and took as security therefor the bond and mortgage of the defendant at one year with interest. It farther alleges that the complainant is a brewer and was ready and willing at all times to deliver beer to the defendant, and the defendant commenced and continued to purchase beer from it for a period of about three weeks, and then declined to purchase any more from complainant, but continued the business and purchased his beer from another brewer. —
    illTpon filing the bill, November 27th, 1905, with affidavits annexed, an order to show cause, returnable on December 5th, was made, without interim restraint. On that day the defendant filed his answer with several affidavits annexed, in which he admits the loan of the money for the purposes mentioned; and that he was at that time requested to sign such an agreement as that set out in the bill and positively declined to sign it; and that if his actual signature was annexed to the agreement it was procured by fraud and made upon some subsequent occasion; and he says that he declined to sell the complainant’s beer because he could sell the beer of other brewers to a greater advantage and with better profit.
    • The answer further sets forth that at the same date the defendant executed a chattel mortgage to the complainant with a note- payable on demand. It sets out the chattel mortgage as an annex to the answer, and it appears to contain an agreement on defendant’s part to do certain things, among others that he will not sell any beer except that manufactured by the complainant.
    On the filing of this answer and the affidavits annexed the complainant asked leave to file rebutting affidavits, and the hearing was for that purpose adjourned to the 19th of December.

      On that day, beside the reading of the affidavits, 'the vice-chancellor, by the consent of the counsel for the defendant, compared the signature to the alleged agreement with the- admitted signatures of the defendant to the bond and mortgage covering the house and lot and the chattel mortgage and promissory note, and expressed his belief upon that comparison in connection with the several affidavits, that the signature was genuine, and thereupon an order for an injunction and interim restraint was made.
    Subsequently the defendant, or some one in his behalf, tendered to the complainant the sum of $4,800 with interest in payment of the promissory note secured by the chattel mortgage, and the complainant accepted such payment and delivered up the chattel mortgage and note and released the real estate from the lien of the mortgage upon it.
    The defendant then set up such payment in an amendment to his answer, and by a cross-bill prayed that the contract might be • declared no longer binding upon him.
    The complainant by replication admits the payment of the money on the 26th of December, 1906, after the filing of the defendant’s original answer and after the issuing of the order for interim restraint, and denies the allegation that the amount of the mortgage was ever tendered to complainant prior to that .time. The cause was brought to final hearing May 31st, 1906.

      Mr. Herbert Boggs, for the complainant.

      Mr. James Q. Connolly and Mr. Alfred A. Stein, for the defendant.^
   Pitney, V. C.

I The only questions of fact and of law raised by the pleadings are—first, whether the agreement set out in the bill was entered into by the defendant intelligently, and second, whether, if it were so entered into, in view of the fact that the defendant, or some one in his behalf, has discharged the pecuniary obligations to the complainant incurred at the same time the contract was entered into, it is still binding on the defendant.

The question of the jurisdiction of this court to enforce by injunction the negative covenant contained in the agreement was not raised either by the pleadings or on the order to show cause, and was raised for the first time at the hearing.

The question of fact was determined by me on the spot at the hearing in favor of the complainant, for reasons stated orally, substantially as follows:

Prior to about the 1st of August, 1905, one Frederick Schwitzgabel was the owner of a house and premises at No. 73 Florida street, Elizabeth, N. J., and there conducted a beer saloon, and was a customer of the complainant, and was indebted to it for a balance on current account, for which complainant held, as usual in such eases, a chattel mortgage.

Early in August, 1905, the defendant, Nizolek, negotiated with Schwitzgabel to purchase the premises and saloon, and they seem to have agreed upon the price. But the defendant had not sufficient ready money or capital to complete the purchase, whereupon, naturally enough, resort was had to the complainant.

It was not the business of the complainant to loan money on bond and mortgage except in aid of the extension and mainte-. nance of its business as a brewer.

A visit to complainant’s place of business brought the defendant and Schwitzgabel in contact with the complainant’s agents, Messrs. Stengel, one of whom is the president of the complainant corporation and the other a sub-officer, and with Mr. Southerland, who is, or was at the time, the general bookkeeper of complainant, and had charge of the department which made loans to customers. The defendant spoke English with difficulty, if at all, but probably, as appeared at the hearing, understood it a little better than he could speak it. He was accompanied upon his visits to complainant’s office by Schwitzgabel, who did understand English. At that interview the amount complainant would loan was - fixed at $-1,800, which amount was accepted by Schwitzgabel, but the parties were given clearly and distinctly to-understand that the loan would be made only upon condition that the defendant would enter into a covenant to purchase his beer of complainant and no one else for a period of five years. The evidence was entirely satisfactory to me on that point.

Directions were then given by complainant .to a title guarantee company, whose representative in Elizabeth was Mr. A. H. Cornish, a Counsellor-at-law, to examine the title and superintend the transaction on behalf of the complainant.

He examined the title and the parties met at his office in-Elizabeth on the 16th of August, 1905, to complete the transaction. There were present Schwitzgabel and his wife, the defendant and his wife, and defendant’s counsel, Mr. Louis Graaf. No one represented the complainant except Mr. Cornish.' While there assembled a messenger arrived from complainant’s office bringing the draft for $4,800, a chattel- mortgage and -promissory note, the contract in question, and a letter of instructions in these words:

“Fidelity Trust Go., Elizabeth, B. J.:
“Gentlemen—Enclosed please find our check for $4,800, which is to be loaned to Joseph Nizolek, at six per cent., to be -secured by first mortgage on property No. 73 Florida St., Elizabeth, N. J. We are to receive as collateral security a chattel mortgage for the same amount; also, note, form of which we enclose. In addition to this Nizolek is to enter into an agreement by which he agrees to use our lager beer, ales and porter, exclusively for a period of five years, and to further agree that he will not dispose of his business unless his successor is accepted by us.as a customer and -will enter into the same agreement. He is to sign a power of attorney on the license, and insurance is to be taken out to protect our loan.
“The costs of search and drawing papers in this matter is to be paid by the mortgagor.
“If the property is free from all liens, you may close the transaction as above.
“Kindly inform Joseph Nizolek that he must pay $5 per week from now' on, on account of license.
“Please withhold the sum of $1,300 on account of the indebtedness due us from Mr. Schwitzgabel, which account we shall adjust with him later.
“Yours truly,
“CHRISTIAN FEIGENSPAN,
“A Corporation.
“Per N. Southerland.”

The papers to be executed were as follows: A deed from Schwitzgabel and his wife to the defendant; a bond and mortgage from the defendant and his wife to the complainant; a bond and second mortgage from the defendant and his wife to Seliwitzgabel; the chattel mortgage and promissory note and the contract. These, excepting the contract, were all executed by Seliwitzgabel and wife and by the defendant and his wife where her signature was necessary, in the presence of and witnessed by and properly acknowledged before Mr. Graaf, the defendant’s counsel.

The evidence as to the execution of the contract in question is conflicting. That it was laid upon the table with the other papers seems to be admitted. That the date had been left blank by complainant’s officer who prepared it is admitted, and there seems to be no doubt that the blank was filled in by Mr. Graaf.

Mr. Cornish, whose manner on the stand was such as to command my confidence in his intention to tell the truth, swears that he saw the defendant sign it, and that he witnessed it at the time, and that he sent it promptly, with such of the other papers as did not need to be recorded, to the title guarantee company, and it found its way immediately to the possession of the complainant.

The money was, in substance, paid at once, and Mr. Cornish swears that while he does not recollect the precise details he is quite‘sure that he never would have parted with the money or closed the transaction unless the contract had been then and there executed, and in this he is sustained by the letter of instructions.

The evidence of the defendant’s witnesses, Mr. and Mrs. Schwitzgabel, the defendant and his wife, and Mr. Graaf, is to the following effect:

That in the course of the actual execution of the papers Mr. Graaf took the contract in question and explained it to the defendant and advised him not to sign it, and that the defendant then and there refused to sign it, and did not sign it, to the knowledge and belief of either of the witnesses, at that time.

The defendant himself admits his signature to the instrument to be genuine, but claims and asserts that he did not sign it at the time of the execution of the other papers, but must have signed it a few days later on a visit which he made to the complainant at its office in Newark.

This explanation, if it might be supposed to be true, does not account for the signature of Mr. Cornish as a witness, as defendant does not testify that Cornish was present at the actual execution.

But the whole story of a subsequent execution' is denied in the most positive manner by the executive officers of the complainant and is completely refuted by all the circumstances as well as the evidence of Mr. Cornish and the executive officers of the complainant. Its object is manifest, namely, to show that the execution of the paper was not a part of the original transaction, and hence that it had no sort of consideration in equity.

Eeturning to what oécurred at the moment of the execution of the papers, Mr. Cornish, as before remarked, does not pretend to recollect the details with minuteness, but swears that his recollection is that Mr. Graaf did advise his client, the defendant, to execute the contract.

I conclude then, that there can be no reasonable doubt that the contract was executed at the time that the other papers were executed and before the payment of the money.

There is as little doubt that defendant executed it knowingly and was fully aware of the effects and consequences of the act. In his affidavit annexed to the answer, which affidavit was put in evidence by the complainant, I find the following:

“That a paper was handed him for his signature, and which had been previously read by Graff, and which Mr. Graff explained to him to be an agreement, which, if signed, would oblige him to sell the beers, ales and manufactured products of Christian Feigenspan, a corporation, for a specified period of five years, regardless of whether he was then indebted or obligated to said corporation, and whether he repaid the said loan of forty-eight hundred dollars within five years or not; this deponent then and there refused to sign any such agreement, because it was beyond the understanding he had had with the company, and this deponent further says that he did not sign any such agreement as set forth in the bill of complaint in this cause, and that while deponent and the other persons herein mentioned were still in the office of the Fidelity Trust Company, Abram H. Cornish went to the telephone and called up the office of the Christian Feigenspan brewery, in order to receive further instructions because of the refusal of this deponent to sign said agreement, and that subsequently, when said Cornish returned from the telephone, the transaction was closed without said agreement having been signed.
“This dep'onent further says that it was because of his inability to read and write the English language that he took the precaution to have Louis Graff read all papers to which his signature was requested.”

Tlie evidence oí Grail is very positive to the same effect:

“Q. Was there any other paper submitted that was not signed?
“A. There was.
<-Q. What paper was it?
“A. That was an agreement whereby Nizolek was to bind himself to sell the products of the Feigenspan company for the term of five years.
“Q. Did you read that?
‘•A. I did.
“Q. After you read that, did you or not explain it to-the—I show you - the agreement which was submitted on that occasion and ask you if you recognize it as the paper?
“A. Yes.
“Q. Now, did you read that on that occasion and explain its contents to the defendant?
“A. I did.”
Mrs. Schwitzgabebs evidence was to the same effect. She says:
“Q. You say there was some one paper that Mrs. Graff told Nizolek not to sign?
“A. Just one paper, yes.
“Q. Do you know what the paper was, or what it was about?
■ “A. Well, he read it to Nizolek and told him it was for five years to bind him to sell, the beer, and not to sign it for five years, and he throwed it aside.
‘‘Q. Did he read the paper to Nizolek?
“A. Graff read it; yes.”
“A. He said: ‘Don’t sign this paper; it will bind you for five years to' sell the beer ; don’t sign it.’ That is what I heard.”

And Mrs. Nizolek says:

“Q. Did he show them one paper that they must not sign?
“A. He did.
“Q. Did you understand him?
“A.- Mr. Graff told them that this was a contract to sell for five years beer of Feigenspan’s.
“Q. And what did your husband do in consequence?
“A. My husband said he wouldn’t sign that paper.
“Q. Did he sign it?
“A. No, ho did not.
“Q. Did you understand Mr. Graff when he spoke to your husband about that?
“A. I did.”
"(?• Then, when did you first learn what the paper was about, from anything that Mr. Graff said, or from what your husband told you after-wards ?
“A. I knowed just the very first time when Mr. Graff spoke about it.
‘■Q. Did Mr. Graff say what the paper was—explain?
“A. He did.
“Q. What did he say?
“A. That the contract was to take beer for five years.”

I conclude then that the defendant fully understood the nature and effect of the agreement when he signed it.

The validity of the contract having been thus established, the question remains what remedy, if any, the complainant is entitled to thereon in this court.

By its bill the complainant asks that the defendant be restrained from purchasing his beer from any other brewer, and tenders itself ready and willing to furnish beer on the usual terms. There is no undertaking in words in the contract on complainant’s part to furnish beer at any time, but I find no difficulty in protecting the defendant by a decree which shall provide that the restraint shall continue only so long as the complainant shall continue to furnish beer to defendant at reasonable rates and of good quality, and leaving to the defendant the liberty to apply to be relieved of the restraint if complainant shall fail in that behalf.

The defence set up for the first time at the hearing, and after the issue raised by the answer had been inquired into and practically decided against the defendant, is that this court should not take jurisdiction of this cause, but leave complainant to his remedy at law.

If the court actually has jurisdiction, concurrent with the law courts, of such causes, the general rule is that the defendant should take his objection to the jurisdiction on the ground here taken early in the action, either by demurrer or setting it up specifically in his answer.

This he has not done, but defendant put himself distinctly and entirely on the ground that he had not executed the covenant in question.

In several instances, notably Cutting v. Dana, 25 N. J. Eq. (10 C. E. Gr.) 265 (at p. 273), the court has held that having so experimented and been beaten on the merits defendant ought not to be permitted to raise the question of jurisdiction as he did.

But I am not disposed to enforce that rule against the defendant in this instance.1 .

The covenant here in question is not an uncommon one. Such covenants have been used in England for more than half a century and are in common use in this country, and the question of their enforcement in this court is an important one, and should be considered on its intrinsic merits. ■

I 'will inquire,' first, has the covenant a proper consideration ?

■ It was, as we have seen, a part of the whole transaction, which is similar to many others entered into between parties situate as are these here.

The defendant being desirous of entering into the business of keeping a- liquor and beer saloon, and to commence that business under favorable circumstances, attempted to buy out Mr. Schwitzgabel, who was the owner of an old-established house and saloon in Elizabeth, and was willing to sell it. But defendant had not the requisite capital, and appealed to the complainant to assist him, under the circumstances which I have previously stated. The complainant advanced the money, and, as a part of the transaction, exacted from the defendant the covenant in question. It is fairly inferable from all the circumstances, and in fact the evidence shows, that the amount of money advanced was large in comparison with the value of the premises, much larger than an ordinary person willing to invest on bond and mortgage would have been willing to advance. The complainant then incurred both trouble and risk in the transaction and was willing to do it for the sake of advancing its business interests. It is a well-known fact that all the great successful breweries of the country are obliged to enter into such transactions in order to maintain their business. Hence it seems to me that the covenant had, in its inception, a consideration, which, for purposes of enforcement in a court of equity, must be considered as valuable. It is under seal and admits a consideration.

But in answer to this the defendant proves that after suit brought and after the interim restraint was granted he procured another brewing company to pay oil the complainant in full, thereby relieving the complainant of all further risk. Apparently the complainant was obliged to accept the payment because -it had taken a promissory not payable on demand.

Of course we all know that upon such payment the party advancing the money assumed, by defendant’s consent, the same attitude toward Mm that the complainant had held. That the money was advanced by another brewing company was taken as a fact at the hearing, and so the cause developed into a contest between two brewing companies as to which should control defendant’s trade.

At first I was inclined to think that this satisfaction of complainant’s debt ought to be considered and given prevailing weight in determining the enforceable qualities of the covenant. But further reflection and argument of counsel lead me to the conclusion that such a result is not justified.

The question is what was the original enforceable character of this covenant, and if it was an enforceable covenant at the time it was made I am unable to perceive how that quality was lost by the voluntary payment of the debt. The covenant itself does not provide for any such contingency. It might have done so. Defendant’s counsel might have exacted such a condition.

The original bond and mortgage on the land was given for one year. The accompanying chattel mortgage and promissory note, given as collateral, expressly provide that it should become due if the defendant should buy beer from any one besides the complainant.

But the defendant says that the complainant did not, in express terms, agree to wait upon him for the five years for the payment of the money mentioned in the covenant.

The only importance of that circumstance seems to me to be this: That if the complainant should at any time before the expiration of the five years, enforce the mortgage for any reason except the non-payment of the interest, that act would be of itself a discharge of the defendant from the obligation of Ms covenant. For it seems to be well settled by the authorities in cases of this character that the defendant’s obligation is based upon the assumption that the complainant will continue to supply the material which he desires to sell and will forbear to collect the money which it has loaned.

I think then that nothing that has been proven by the defendant shows any defence to the action.

There was no attempt to prove that the beer furnished was of a poor quality or the price an unusual one. In fact, as before observed, defendant knew what sort of beer he would get from complainant, for his predecessor in title had been selling Feigenspaffis beer and the saloon was a Feigenspan saloon]

The more serious defence set up in argument by the defendant is that this is in effect a bill for the specific performance of a contract, and that the court will not enforce it but leave the complainant to his remedy at law.

The practice of enforcing negative covenants by this court is well established, and is a part of the growth of equity jurisprudence to meet and keep up with the growth and development of business methods.

The policy of the law is that business men should keep their contracts, and not turn the contractee over to the uncertain remedy of an action at law for damages for non-performance. It is, in my judgment, one of the most important functions of courts of equity to prevent injuries which'result in damages, in all instances where it is practicable to do so, and the tendency is toward extending the protecting power of the court to cases not formerly thought to be sufficient to invoke its action.

For myself I think this tendency is wholesome.

Negative covenants of the particular kind here in question have been enforced more than once.

In Calt v. Tourle (1869), Vice-Chancellor Stuart dealt with such a case, as reported in 38 L. J. Gh. JfOl.

The headnote states the case thus:

“On the occasion of a conveyance by the plaintiff (who was a brewer) of land to trustees in fee of a building society, of which the defendant (a-lso a brewer) was a member, the trustees (the purchasers) covenanted with the plaintiff that ‘he, his heirs and assigns, should have the exclusive right of supplying all ale, beer and porter which might be consumed in every house or other building which might be erected on the said piece of land, and which should be opened or used as an inn, public house or beer shop.’ The defendant, with notice of the covenant, oxiened a public house on the land and supplied it with ale, &c., of his own brewing. The plaintiff then filed a bill against the defendant alone for an injunction to restrain the breach of the covenant. The defendant demurred. Held, that the covenant was not invalid, on the ground either of uncertainty, want of mutuality, or as being in restraint of trade, and the demurrer was overruled, with costs.”

The learned vice-chancellor used the following language:

“The next important objection to this covenant was that there is no mutuality in it. In a covenant of this kind mutuality is not necessary at all. The books abound with cases in which covenants are entered into with brewers by the lessees of public houses that they will consume no other beer upon the premises than the beer supplied by those brewers. In none of those cases is there ever a covenant on the part’ of the brewer to supply beer; nor has it, in any of those cases, been ever held that the want of a corresponding covenant on the part of the lessor or owner of the house to supply the beer vitiates the covenant by the occupier that he will exclusively use certain beer to be consumed upon the property. Therefore, upon the ground of mutuality, viz., that there is no covenant on the part of the plaintiff that he shall supply the beer, there seems to me to be no objection whatever to this covenant.

“The last objection was that the covenant is bad' in law, because it is a covenant in restraint of trade. The cases in which courts of law and equity have held that covenants in restraint of trade are bad, are cases in which those covenants have so extensive an operation as to cause public detriment. No such objection has ever been raised, in any of the cases in the books that I have referred to, to the covenants entered into with the owners of public houses, by lessees, to have their beer exclusively sup.plied by those persons. Nor could any such objection be raised in those cases, because the public are not affected to that degree which is requisite for the application of the principle making contracts clearly in restraint of trade to be bad. This covenant is a covenant between one individual and another with reference to the beer to be consumed in one particular house. Covenants of this kind are not confined to the consumption of beer—for instance, they may be covenants that all corn shall be ground at a particular mill. All those covenants are in restraint of trade, but are not such an extensive and general restraint of a public right as to be obnoxious to that principle of law which declares that covenants too general in restraint of trade áre injurious to the public, and therefore to be considered bad.”

An appeal was taken to the court of appeals, as reported in L. B. '4 Gh. App. 651f (1869). The question was elaborately argued and the action was sustained by both the lord-justices.

It will be observed that in that case there was no express negative covenant.

In the course of his judgment Lord-Justice Selwin remarked: “And then, with respect to this particular covenant, it seems to me that the court cannot but take judicial notice of its being extremely common. Every court of justice has had occasion to consider these brewers5 covenants, and must be taken to be cognizant of the distinction between what are called free public houses and brewers5 public houses which are subject to this very covenant. We should be introducing very great uncertainty and confusion into a very large and important trade if we were now to suggest any doubt as to the validity of a covenant so extremely common as this is.55

Naturally, in the course of the argument, the great case of Lumley v. Wagner, 1 DeG., M. & G. 604 was mentioned and discussed, and numerous others in the same line.

Gatt v. Towle has never been overruled or doubted, but was followed ten years later by Justice Ery (afterwards Lord-Justice Fry, and author of Fry on Specific Performance) in Luker v. Dennis, L. R. 7 Ch. Div. 227 (1878). That also was a suit by a firm of brewers against, a publican to restrain him from purchasing the beer sold by him at his public house in violation of a covenant by which the complainant alleges he was bound. In that,, case, as in Gait v. Towle, there was no negative covenant. ^

/There the question was raised and discussed as to what the effect would be of the complainant’s failing to furnish good wholesome beer. On that subject Justice Fry said: “It is, in my opinion, a covenant conditional on a supply being made by the plaintiffs of good marketable beer. Various expressions are used in the cases which have been referred to, but I think they all really amount to the same thing. In one case the term 'good and wholesome beer5 is used, in another 'good and marketable beer.5 I see no objections to any of these expressions.”

Another case in which Catt v. Tourle was cited before Justice Ery is Donnell v. Bennett, L. R. 22 Ch. Div. 835 (1883). There a manufacturer of fertilizer, the plaintiff, made a contract with one Cormaek, a fish-curer and smoker, by which it was agreed that Cormaek should sell and the plaintiff buy all the refuse fish not used by Cormaek at a specified price per ton for two years, and Cormaek agreed that he would not sell any such parts to any other manufacturer whatever. In breach of that agreement Cormaek entered into a contract to deliver fish parts to the defendant Bennett. The suit was to restrain Cormaek from’selling and Bennett from buying. The question was raised whether, as that was a case which it was assumed was one which involved a continuous contract which the court would not enforce by specific performance, it would enforce the negative covenant. Mr. Justice Ery, after hearing the arguments and going over the authorities, says: “That is the way in which the direct authorities stand in cases in which there is a negative clause, and they appear' to me to show that in cases of this description where a negative clause is found, the court has enforced it without regard to the question whether specific performance could be granted of the entire contract.”

This is in exact accord with the decision of Chancellor Zabriskie in Manhattan Manufacturing Co. v. Stockyard Company, 23 N. J. Eq. (8 C. E. Gr.) 161.

Beturning to the English cases we have the very recent one of Metropolitan Electric Supply Co. v. Ginder, L. R. 2 Ch. 799 (1901).

There the defendant, an owner of a hotel in High Holborn, London, applied to the complainant for a supply of electricity and entered into an agreement as follows:

“The consumer agrees to take the whole of the electric energy required for the premises mentioned below from the company for a period of not less than five years.” Shortly afterwards defendant ordered the complainant to disconnect their apparatus and made an arrangement to get a supply of electricity from a rival company. An action was brought for. an injunction and was dealt with on final hearing. It will be perceived that there was no express negative covenant. The learned judge (Buckley), after stating the case, goes on to show in what cases an affirmative covenant may amount to a negative covenant, and held that the effect of the covenant in that case was the same as if it were in words of a negative covenant, and granted the injunction prayed by the plaintiff.

I have cited these few from many English authorities because they are specially in point in the present case. It is worthy of remark that while in Catt v. Tourle and Luker v. Dennis the covenant sued on was found in a conveyance or demise of land, in the other cases, which followed those, that element does not appear, and none of the decisions rest in any degree upon that circumstance.

Of course, the great case which has set the pace for later decisions is Lumley v. Wagner, supra, decided by Lord St. Leonards in 1852 against the argument of the most able barrister of the day, Sir Richard Bethel, afterwards Lord Westbury. Mr. Per-'kin’s edition (Boston) of that report, printed in 1871, shows a great number of cases in which it has been followed.

Coming to our own state we have the case previously cited of Manhattan Manufacturing Co. v. Stockyard Company, supra. Tn that case there was a contract between the complainant and the predecessor in title of the defendant, by which the complainant had the exclusive right of taking all the blood of animals slaughtered in an abattoir, and also the animal matter and ammonia from the rendering tanks. This contract was broken bjr the defendant. A bill was filed for an injunction and the injunction was granted. The headnote states that such injunction is not mandatory. It does not require the delivery of the blood, but restrains the defendant from permitting any other but the complainant from taking it. Chancellor Zabriskie holds the remedy at law inadequate, using this language: “Eor this injury there is a remedy at law, but it is not an adequate remedy. The value of the blood is no measure of the injury, and it is hardly possible to compute the damages which the injury may occasion. And redress at law could only be obtained by a continued series of suits through the twenty or forty years of the complainant’s term. It is a case peculiarly proper for the preventive remedy by injunction.”

lie refers to Shreve v. Black, 4 N. J. Eq. (3 Gr. Ch.) 177. A reference to that case and to Chancellor Green’s note to West v. Walker, 3 N. J. Eq. (2 Gr. Ch.) 279, will show, what is now perfectly well settled, that in considering the question of what is an adequate remedy at law the courts will take into consideration not only the question of multiplicity of suits, but -also the pecuniary responsibility of the defendant.

It is all very well to say you can sue and recover your damages. But can you collect the damages after you have recovered them ? And this is one of the important elements in support of the doctrine that it is better to prevent an injury than to give damages for its infliction.

In the same direction is a ease in this court similar to Metropolitan Electric Supply Co. v. Grinder, supra—Western Union Telegraph Co. v. Rogers, 42 N. J. Eq. (15 Stew.) 311. The case is valuable on account of its citation of authorities on p.314]

Coming to the present case we have these elements bearing on the question of an adequate remedy at law:

First, the difficulty of ascertaining and proving in an action at law the amount of beer which the defendant has sold.

Second, the profit which the complainant would have made on an equal amount of beer. On this item the difficulty rests in distributing the items of cost, consisting of the interest of the costs of the plant, the wear and tear of it, the cost of administration, the actual cost of material and manufacture.

In the third place is the consideration of the multiplicity of suits necessary and proper to give the complainant proper satisfaction.

In the fourth place is the uncertainty of the pecuniary responsibility of the defendant. The proofs show, incidentally, that it is slight.

All these combine to render it well-nigh axiomatic that in such cases the'remedy at law can, with rare exceptions, never be said to be adequate, and support the general proposition which I have previously advanced, that the policy of the law-should be to prevent a man from breaking his contracts rather than to leave the injured party to his damages at law. ~ ' ' ---------------

fjíhe subject of the effect of the necessity of the complainant bringing a series of suits at law to complete his remedy at law is dealt with by Professor Pomeroy (Pom. Eq. Jur. § &4-S), as follows:

“The multiplicity of suits to be avoided, which are generally actions at law, shows that the legal remedies are inadequate, and cannot meet the ends of justice, and therefore a court of equity interferes, and although the primary rights and interests of the parties are legal in their nature, it takes cognizance of them, and awards some specific equitable remedy, which gives, perhaps in one proceeding, more substantial relief than could be obtained in numerous actions at law. This is the true theory of the doctrine in its application to the two jurisdictions.”

And in classifying the cases he states the present case under class one in section 245, as follows:

“1. Where, from the nature of the wrong, and from the. settled rules of the legal procedure, 1he same injured party, in order to obtain all the relief to which he is justly entitled, is obliged to bring a number of actions against the same wrong-doer, all growing out of the one wrongful act and involving similar questions of fact and of law. To this class of cases belong cases of nuisance, waste, continued trespass, and the like.”

And in section 250 he says:

“It follows as a necessary consequence—and this point is one of great importance to an accurate conception of the whole doctrine—that the existing legal relief to which the plaintiff who invokes the aid of equity is already entitled need not be of the same kind as that which he demands and obtains from a court of equity. On the contrary, it may be, and often is, an entirely different species of remedy.”

This doctrine was applied by Chancellor Runyon in Shimer v. Morris Canal and Banking Co., 27 N. J. Eq. (12 C. E. Gr.) 365.

That was a bill for the specific performance of an agreement between the complainant and the defendant as to the mutual continuous use of the waters of a creek. It charged the defendant with the violation of that contract, prayed an injunction to restrain the defendant from continuing to violate the agreement, and that the defendant might be decreed to perform the agreement specifically.

The learned chancellor says (p. 865)-: .“It is clear that the complainants have not an adequate remedy at law. The injury complained of is, in its nature, a continuing one. The remedy at law must, therefore, be by successive suits, if the defendants persist in inflicting the injury. It is, therefore, in this respect wholly inadequate for the protection of the complainants’ rights, and it obviously will not answer the purposes of justice.”

It is true that the case just cited, and most of the cases in this country which the court has seen fit to relieve against the necessity of bringing a multitude of suits, have related to interests in real estate, but the principle is the same.

The object of the contract here in question, and others like it, is to support and maintain a going business, and naturally and necessarily mere damages for detracting from a part of that business can hardly be said to be an adequate compensation for the injury.

The necessity and propriety of bringing a multitude of actions in the present case 'seems to me to be too plain for argument. The injury is a continuing one and liable to be such for a period of five years. To say; that the complainant must not only accomplish the very difficult if not hopeless task of keeping account and preserving the proof of the amount of beer sold by the defendant for all that period, or even for one year or two years, and then sue to recover its damages, seems to me to be a mockery. The continuing character of this injury seems to me to be of itself, according to well-settled principles, a sufficient ground for the interference of the court.

But the defendant relies on the very recent case of Sperry & Hutchinson Co. v. Vine, decided by the court of errors and appeals and reported in 66 N. J. JSq. (&1 Dick.) $89. The opinion of the court below in that case has not been published, so far as I have been able to ascertain, but the bill was dismissed on the construction of the contract and the conduct of the complainant.

The opinion on appeal does not state how long the contract had to run (I am informed it was for one year), but the substance of the contract was that the defendant agreed to buy trading stamps of the complainant and not to use any other trading stamps, and the bill was filed to restrain them from so doing. The learned judge who spolce for the court held that it was not necessary to consider the ground upon which the decree of dismissal was put in the court below, but says: “The injury to the complainant is the loss of a market for their stamps and consequent loss of profit. There cm be no difficulty in ascertaining how many of the complainant’s green trading stamps would have been required if their place had. not been supplied with their competitor’s red star stamps, and the complainant’s profit thereon must be a matter of calculation. Assuming that the complainant has a legal right the remedy at law is adequate.”

I. am not aware that the nature of the trading-stamp trade, with what may be termed its true inwardness, is a matter of common knowledge. I confess my ignorance of it, and hence am not able to reason from that case to the present case. But from what little knowledge T do have of that modern retail mercantile device I should be ready to agree with the result arrived at on the ground that the device is a sort of fraud on the public, and contracts of the character there set out should not be enforced on grounds of public policy. Be that as it may, I might have been able to have measured the full force of the decision if it had been explained in the opinion how the complainant would have had no difficulty in ascertaining how many of complainant’s green stamps would have been recquired.

If the contract was for one year that featoe alone distinguishes it from the present case, and presumably the defendants were abundantly able to respond in damages.

As the case is reported I do have difficulty in apptying it to this, and cannot consider it as governing it, especially in view of the more recent ease of Meyers v. Steel Machine Co., 67 N. J. Ecq. (1 Robb.) 300; affirmed, on the opinion below, in 68 N. J. Eq. (2 Robb.) 795. That was a contract by which the defendant agreed to sell to the complainant all of certain machines which the defendant should manufacture, provided the complainant should purchase all the defendant should make. The third headnote is this:

“When a contract requires the' defendant to do for the' complainants, exclusively, some act calling for the exercise of skill or artistic capacity, equity will enforce the negative side of the agreement and will restrain the defendant from giving his services to any other than the complainants for whom he agreed to work, but it will not make a mandatory decree to compel the defendant to exercise his skill in specifically performing the contract.”

The bill was filed to restrain the defendant from selling the machines to any other person. The cases wherein courts of equity will enforce negative covenants was discussed by Vice-Chancellor Grey in his opinion (p. 31-1), and treated in a satisfactory manner, and the result is a good illustration of the present limits of the rule governing courts of equity in such cases.

In 'the same direction is the very recent opinion- of Vice-Chancellor Bergen in Taylor Iron and Steel Co. v. Nichols, 70 N. J. Eq. (4 Robb.) 541.

Reference is made by defendant’s counsel in his argument to what was said by me in O’Brien v. Paterson Brewing and Malting Co., 69 N. J. Eq. (3 Robb.) 117, but the circumstances of that case and the present are quite different and the language used does not cover the present caseT]

The defendant herein, in his written argument, expressly disavows any contention that the contract is open to the criticism of being in restraint of trade. -------------------------

He does make the point that the contract is not enforceable by reason of its lack of certainty. That point is covered incidentally by the several authorities which I have cited. The business of supplying malt liquors to a beer saloon is a familiar one and its course well known, and the contract must be construed accordingly. The rule is well settled that in contracts of this character the brewer, by implication, agrees to supply in the ordinary course of trade beer of a good quality at reasonable prices and on the usual terms as to delivery, payment, discounts and the like. The present case presents no disagreement between the immediate parties to the suit on any of these points, but, as before remarked, it has developed into a bare contest between two rival brewers which shall supply the defendant’s beer saloon. I thought, and still think, that the complainant..was .entitled4o=j relief and advised accordingly. ,

ADDENDUM.

Since preparing the foregoing my attention lias been called to the case of Mausert v. Feigenspan, 68 N. J. Eq. (2 Robb.) 671. It appears by the fourth section of Vice-Chancellor Emery’s opinion, found on p. 675, that he there granted an injunction similar to that which I have advised in this case. And as I infer that the appeal was from all parts of the decree, I think that the unanimous affirmance of that decree is not without significance.


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    The Mayor and Council of the Borough of Metuchen v. The Pennsylvania Railroad Company et al.
    [Submitted June 7th, 1906.
    Decided July 18th, 1906.]
    1. P. L. 1903 p. 660 § 89 provides that when any railroad company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located to proceed by suit in equity to compel specific performance of the duties imposed by law on such company, and the court shall prescribe the crossing to be constructed or the repairs to be made. —Held, that such section was not unconstitutional because it authorized the court to give a municipality a compulsory remedy by a suit in equity for specific performance, as distinguished from the legislature’s power to authorize a preventive remedy.
    2. A railroad charter (P. L. 1838 p. 10^ § 80), requiring the corporation to construct and keep in repair good and sufficient bridges or passages over or under the railroad where any public or other road shall cross the same, was a contract between the corporation and the state in the sense that it could not be altered or the franchise withdrawn, in the absence of. a power of reservation in the charter, the acceptance of which imposed on the railroad company a contractual- obligation to perform the duties imposed thereby.

      3. P. L. .1868 p. 1087 § 1 authorized certain railroad companies to shorten and straighten their railroad lines, to cause the same to pass above or below any public highway or street crossing the same, and if necessary to change the location or grade so as to make the crossing more convenient, provided that the location or grade of no street or highway should be changed without the concurrence of the common council of any city or borough or a majority of the surveyors of the highways of any township in which the change might be made.—Meld, that the township committee of a township had neither express nor implied authority under such act to grant any dispensation to one of the railroad companies mentioned therein with reference to the changing of the grade of a highway crossed by the railroad.
    4. P. L. 1868 p. 1037, authorizing a change of location or grade of a highway at a railroad crossing, provided that the location or grade of no street or highway should be changed without the concurrence of a majority of the surveyors of the highways of the township in which the change was to be made, did not confer any authority on such surveyors to vacate in the interest of the railroad company any part of a street or reduce the width thereof.
    5. Where a railroad company prepared a plan for the alteration of a highway under an overhead crossing, narrowed the roadway by the construction of abutments located in the highway, and failed to properly provide for the draining thereof, the railroad company was bound to make such alterations therein as to displace the abutments from within the lines of the highway, and to properly drain the eul-de-sae formed under the bridge. •
    6. P. L. 1908 p. 660 § 29 provides that when any railroad company shall not properly maintain the bridges or other crossings or highways, the governing body of the township containing the crossings may proceed by a suit in equity to compel specific performance of the railroad’s duties with reference thereto.—Meld, that a suit in equity to compel the alteration of a railroad crossing was maintainable under such section, regardless of the remedies by mandamus, ejectment or indictment.
    7. Where a railroad charter (P. L. 1882 p. 101/. § 20) required the company to construct and keep in repair good and sufficient bridges or passages over or under the railroad where any public or other road should cross the same, the railroad company was not bound to maintain the highway under its overhead crossing in a proper state of repair.
    On final hearing on bill, answer and proofs.

      Mr.. Charles L. Gorlin and Mr. George L. Silzer, for the complainant.

      Mr. Alan E. Strong, for the defendants.
   Pitney, Y. C.

This suit is brought by the borough of Metuchen against the Pennsylvania Railroad Company, as lessee, and the United Railroad Companies of New Jersey, as lessor, of a section of the great through railroad route between New York and Philadelphia.

Its object is to compel the defendants to correct and remedy certain alleged defects in a crossing of the railway over Main street in the borough.

The complainant invokes this action by this court under the twenty-ninth section of the revision of 1903 of the act concerning railroads, session laws of 1903. P. L. 1903 p. 660.

That section, then first .enacted, provides that

“When any company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located * * * to proceed by a suit in equity to compel the specific performance of the duties imposed by law upon such company with respect to the construction, maintenance and repair of such bridges and crossings, and the court shall prescribe the crossing to be constructed or the repairs to be made.”

The twenty-sixth, twenty-seventh and twenty-eighth sections contain provisions regulating the crossings in both country and urban districts.

The defendants are operating their road under the original charter of the New Jersey Railroad and Transportation Company (P. L. 1832 p. 101¡.) which, by section 20, requires that company to “construct and keep,in repair good and sufficient bridges or passages over or under the said railroad where any public or other road shall cross the same.”

The standing of the municipality in this court in cases of this sort was thoroughly established in the case of Inhabitants of Greenwich v. Easton and Amboy Railroad Co., 24 N. J. Eq. (9 C. E. Gr.) 217, affirmed on appeal in 25 N. J. Eq. (10 C. E. Gr.) 565, which has been followed in many instances.

However, most, if not all, of these cases were instances of preventive remedy in which the court was asked to prevent the creation of an obstruction or purpresire upon a public highway.

The power of the court to compel, by mandatory proceedings, the railroad corporation to do its duty in this respect rests, so far as I am aware, wholly upon the statute of 1903.

The particular defects which the bill seeks to remedy are threefold.

First. That the bridge by which the railway tracks now cross the street encroach upon the street by its abutments and reduce its lawful width of sixty-six feet to about forty-four feet. At the same time those abutments, which are over eighty feet in length, are not parallel to the side lines of the street, but are laid at right angles to the course of the railway, which cuts the centre line of the street at a slighty acute angle, and the allegation is that the narrowing and distortion of the street seriously impedes public travel.

Second. That the railroad company, in order to accommodate its grade line to that of the roadway, depressed the roadway several feet, making a cul-de-sac immediately under the bridge with a rising grade in the street in each direction therefrom, the result of which was and is that the surface water falling on the street collects immediately under the bridge and there forms pools of water immediately after a rain.

In addition to the water that thus reaches this cul-de-sac a large contribution comes from the railway tracks to the east of the bridge, there being a rising grade from the bridge in that direction for a distance of eighteen hundred feet.

A few hundred feet to the east of the bridge there is a natural divide in the surface of the earth, the’ water on the westerly side draining towards the bridge and thence to the Earitan river above tidewater at Bound Brook, and on the easterly side toward the Bahway river.

The exigencies of the railroad company have extended this natural divide a considerable distance to the east, so far as its track is concerned, so that a considerably greater area of surface of the railway tracks than is natural is drained toward the railroad bridge and dropped by a steep declivity of ten or twelve feet into the cul-de-sac under the bridge, there uniting with the surface water coming from the street on each side of the railway.

At the time of the building of this bridge, which was in 1889, the railroad company attempted to provide for this surfacé water by a tile drain two 'leet in diameter, leading from the cul-de-sac lengthwise under its tracks and emerging fourteen hundred feet away on the north side of their track, from which the water found its way into-a rivulet emptying into the Raritan river at Bound Brook.

This drain or conduit seems to have served its purpose reasonably well up to within a few years, but has now become entirely insufficient.

I do not recollect that any expert opinion was offered in explanation of this recent inefficiency, but I think it can be easily explained from common knowledge. The surface water which reached this cul-de-sac, both that from the highway and that from the railroad tracks, carried with it a great deal of earth, which, on the occasion of each heavy rain, settled in this cul-desac and covered the roadway and sidewalks and had, of course, to be carted out. But a considerable portion of it found its way in the shape of very muddy water into the tile drain which had a declivity of only four and one-quarter inches in one hundred feet.

This gradient of four and one-quarter inches to the hundred feet was given by one of the engineers of the defendants and would indicate a fall of about five feet in the whole length of fourteen hundred feet. Another engineer of the defendants stated the difference of elevation of the roadway under the bridge and the outlet of the drain to be seven feet, making a fall of six inches to the one hundred feet, and showing an apparent discrepancy of the two engineers of about two feet.

As a juryman, I should say that this declivity was not sufficient to produce a rapidity of flow sufficient to produce the scouring capacity sufficient in its turn to carry all the sediment out of the tile or drain. The result is, probably, that the original carrying capacity of the drain has been seriously reduced by the subsidence and lodgment of heavy particles of earth and sand along its course.

However, be that as it may, the result oE the present situation is that in times of heavy rains the roadway under the railroad is rendered nearly or quite’impassable.

The third complaint of the municipality is that the railroad company is bound by the terms of its charter to keep that part of the street immediately under the bridge in repair, relieving the municipality of its duty in that behalf.

The railroad company admits its liability in law as to the first two items of the charges of the complainant but denies it as to the third.

Without at this moment stopping to .determine the question of construction of the clause in the old charter thus raised I will proceed to consider the other defences set up by the defendant which go to the whole of the complainant’s case.

And first it contends that the section of the act upon which complainant relies is unconstitutional—or, in other words, that the legislature had no power to confer on this court the right and power to give to a municipality compulsory remedy by way of compelling specific performance by a railroad company of its duties in this behalf, as contradistinguished from its power to give it a preventive remedy, such as was given in Inhabitants of the Township of Greenwich v. Easton and Amboy Railroad Co., supra.

With regard to this defence, I think it has already been disposed of by the court of errors and ’appeals'. In the case of Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 601, the question was elaborately discussed by Yice-Chancellor Grey, commencing at p. 610, and his opinion upholding the power was adopted by the court of errors and appeals in affirming his decree. 63 N. J. Eq. (18 Dick.) 799.

The same doctrine was reaffirmed in the Perth Amboy case. Eckert v. Perth Amboy and Woodbridge Railroad Co., 65 N. J. Eq. (20 Dick.) 777.

The court was, in both these cases, dealing with a proceeding under the thirty-sixth section of the revision of the General Kailroad law (P. L. 1903 p. 661), which provides for compulsory proceedings to establish gates or bars across the railway. But I am unable to distinguish between the authority given, by that section (36) and that given by section 29, under which these proceedings are had. The principle established by Yice-Chancellor Grey’s reasoning and adopted by the court of errors and appeals includes the present case. And it seems to me a fortiori, for section 29 merely provides for the compelling of the specific performance of a duty resting upon the railway by virtue of its original contract with the state, while section 36, as it seems to me, goes farther and compels the railroad, without regard to their original contract, to adopt and establish means to provide simply against the danger of injury arising from the inadvertence of persons crossing the railroad by a highway at a grade crossing.

I have spoken of the charter of the New Jersey Railroad and Transportation Company as a contract between it and the state. It certainly is a contract on behalf of the state in the sense that it cannot be altered or the franchise withdrawn unless the power to do so is reserved in the charter, and I think it may be properly said that the acceptance of it by the railroad company amounts to a contractual obligation on its part to perform the duties imposed upon it thereby. Thus it seems to me that the jurisdiction given to this court by section 29, supra, is cognate to the familiar jurisdiction of this court to compel the specific performance of contracts.

The next defence set up by the defendant is that the present arrangement of the crossing was adopted by and with the consent and acquiescence of the then municipal authorities,' the township committee of the township of Raritan (the borough of Metuchen had not been organized at that time) and by the consent of the surveyors of the highway of that township.

The legislative authority invoked by the defendants for this is found in the session laws of 1868 (at p. 1087), being “An act relative to the Delaware and Raritan Canal Company, the Camden and Amboy Railroad and Transportation Company, and the New Jersey Railroad and Transportation Company.”

The first section authorizes the companies to shorten and straighten any part of their railroad lines and to cause the same to pass above or below any public highway or street crossing the same, and if necessary to change the locatioh or grade of such highway or street so as to make the crossing more convenient

“provided that the location or grade of no street or highway shall be changed without the concurrence of the common council of any city or borough, or a majority of the surveyors of the highways of any township in which such change may be made.”

It wiE be seen that the then governing body, namely, the township committee of the township, is not mentioned, and no authority is given even by implication to that committee to give any dispensation whatever to the railroad company. The whole jurisdiction in that respect here in question is vested in the two surveyors of the highways of the township. The defendants at the hearing attempted to prove that they had such a document executed by the then two surveyors of the highways of the township of Earitan which permitted this change to be made precisely in the way it was made. At the hearing what purported to be a copy of such a document was produced purporting to be signed by two men, Messrs. Tappen and Stell, both still living, but the original was not produced nor was any proof given of its actual existence. At the close of the evidence leave was given to counsel for the defendants to supply the proof of the existence of the original document, but no such proof-was ever produced, and counsel for the defendants afterwards stated to me personally that they had been unable to produce it, and no reliance was placed upon it in the written argument of that counsel.

But it is to be observed that the proviso above quoted contains no authority on the part of the surveyors of the highway to vacate, either in whole or in part, or to reduce the width of any street or road.

Whatever municipal authority was shown to exist for the present arrangement is found in an entry on the minutes of the township committee of Earitan township, as follows:

“Metuchen, New Jersey, May 18th, 3889.
“The town committee met at the clerk’s office for the purpose of notifying the Pennsylvania Railroad Company to change width of sidewalks and extend width of roadway south of the traeh on Main street. Resolved, That the Pennsylvania Railroad Company be authorized to make the sidewalk six feet wide instead of ten, and to add to the roadway eight feet taken from the sidewalks, making the roadway twenty-five feet wide instead of seventeen.”
“Metuchen, N. J., May IStk, 1889.
“Mr. B. F. Brooks, Engineer, Maintenance of Way, Pennsylvania Railroad Company:
“Dear Sir—In accordance with the resolution passed this day by the township committee of Raritan township, you are authorized by them to make the sidewalk six feet wide instead of ten, throwing the other eight feet into the roadway, and we will release you from all responsibility that will arise hereafter.
“Joseph L. I-Iahn, Chairman.
“L. H. Tappen.
“John Robinson, Town Clerk.
“Approved by the committee, June 1st, 1889.
“John Robinson, Town Clerk.”

This entry shows plainly on its lace that it referred wholly to the width of the road to the south of and outside of the bridge in question.

In order to accommodate the grade of the highway to the grade of the railroad the defendants made a deep cut in the highway on the south side of the bridge, with sloping banks, thereby narrowing the usable width of the road which previously, according to the evidence, had been opened and used on both sides of the railway substantially to its lawful width of sixty-six feet. And to the roadway in these cuts the resolution refers.

But granting that the resolution recognizes the narrowing of the street under the railway, and granting, what is alleged by the defendants, but not proven, that such narrowing was done with the acquiescence and tacit consent, not only of the township committee but of the inhabitants of the vicinity, there yet remains two complete answers to the defence so far as defendants rely thereon.

First, that the township committee had no authority in law to vacate any part of the public highway or to authorize any occupation thereof or obstruction to be placed thereon by the railroad. City of Hoboken v. Hoboken Land and Improvement Co., 36 N. J. Law (7 Vr.) 540. And the case is clearly not within the doctrine of the case of Easton and McMahon v. New York and Long Branch Railroad Co., 24 N. J. Eg. (9 C. E. Gr.) 49.

In the second place it is quite clear that the bridge and its width and location, and the change in the grade of the street, were wholly the device and plan of the defendants, who are responsible therefor, and however ample it may have been to accommodate the travel as it existed at the date of its construction, the evidence satisfies me that it is not sufficient for that purpose at the present time, and hence the case is brought within the rule which was established by the supreme court in Central Railroad of New Jersey v. State, 32 N. J. Law (3 Vr.) 220. There the chief-justice, speaking for the supreme court, was déaling with the clause in the charter of the Central Eailroad of New Jersey, corresponding with and substantially similar to that which imposes the duty on the defendant railroad to maim tain passages over or under its railroad, above cited. He uses this language:

“This provision, it will be perceived, imposes a duty on the company in.favor .of the public. It is to be taken most strongly against the corporation, but it is to receive a reasonable construction. It is a continuing duty to which the company is made subject, which, in its performance, must be measured by circumstances. Thus a bridge or a passageway, which at one time would be adequate to the public accommodation, might, at a subsequent period, from an increase of business or population, be totally inadequate, and consequently a provision which at one juncture would be a discharge of the duty, would, at another, amount to its infraction. Suppose a public street in a town to have been originally laid by the company over the surface of their track, and that by reason of the growth of their business at that locality their trains should pass in such quick succession as to render such street almost impassable, under these circumstances could it be pretended that the company could discharge themselves from the obligation which the section in question imposes, except by passing the street thus obstructed under their road, so as to restore it to public use. The duty prescribed is to keep at all times and under all circumstances the public highways, at the point where .they cross the railroad, in a condition fit for safe and convenient use.”

That principle has been restated in so many instances by the judges of this state as to have become thoroughly imbedded in our laws. See the opinion of Chancellor McGill in Township of Raritan v. Port Reading Railroad Co., 49 N. J. Eq. (4 Dick.) 14, and Reed v. Camden, 53 N. J. Law (24 Vr.) 322 (at p. 826), and later on in Palmyra v. Pennsylvania Railroad Co., supra, and the additional cases there cited.

If, then, the passageway under the railroad provided by the defendant in 1889 has become insufficient, it is the defendants’ duty, under the language of their charter, to cause that passageway to be enlarged.

It was not contended that the clause in question found in defendants’ charter, or any other clause or legislative grant, authorized the defendants to put the abutments or supports of their bridge within the lines of the street, except that they have the right to plant posts for support to their structure on the edge of the sidewalks, giving an increased width to the outside of the sidewalks from their own right of way. This right is given by a proviso in section 27 of the revision of the act concerning railroads. P. L. 1908 pp. 659, 660.

I find, therefore, that the defendants have no excuse, either at law or in equity, as to the first two charges against them, namely, the placing of the abutments to their bridge within the lines of the street, and the failure to properly drain the cul-de-sac which they have formed therein.

But, say the defendants, this court ought not to exercise jurisdiction, because there is an ample remedy at law, either by mandamus, ejectment or indictment.

The remedy by mandamus was so thoroughly dealt with by Vice-Chancellor Grey, in his opinion in the Palmyra Case, supra, commencing at the bottom of p. 615, 62 N. J. Eq. (1.7 Dick.), that I will only refer to it. The learned vice-chancellor was indeed dealing there with the constitutional question, but what he says applies with equal force to the present situation and shows the inadequacy of such a proceeding. It lacks the pliability and adaptability to special circumstances which the remedy in this court affords. It is true that there is a remedy at law by mandamus to compel a railroad company or a canal company to build a bridge across such railroad or canal. It was so decided in this state by the supreme court in the Trenton Water Power Co. Case, 20 N. J. Law (Spenc.) 659, and Mr. High, in his work on Extraordinary Legal Remedies (at §§ 819, 820), dilates upon tlie subject, and comes to the same conclusion. But I have found no authority which goes to the length that the remedy by mandamus is efficient to adjudge a structure already existing as inefficient or to be a public nuisance and to order its removal and the substitution therefor of a proper structure, or to define what a proper structure should be.

Moreover, it seems to me that the statute above cited, giving this court jurisdiction, gives the remedy in this court a sort of preference over other known remedies, and declares in advance that this court shall and may assume and exercise jurisdiction without stopping to carefully examine and strike a balance between the adequacy of the remedy at law whether by mandamus, ejectment or indictment, and that in this court. It may be admitted that each of these remedies are open to the complainant.

The remedy by ejectment was recently maintained by Justice Pitney sitting in the Passaic circuit court.

But the question arises, what would the complainant do with a judgment in its favor giving it possession of the ground within the limits of the highway occupied by the abutments of the defendants’ bridge, and how would that judgment be used to widen the road except by destroying the bridge and interrupting travel over a great public highway ?

Then with regard to the remedy by indictment. The same criticism arises. Suppose the indictment found and conviction under it and an order to abate the nuisance. What would the sheriff do?

But, after all, to speak with perfect frankness, the sentiment of the bench and bar as to the adequacy of indictment in cases like the present has changed and advanced within late years. As early as the case of Hoboken Land and Improvement Co. v. Hoboken, 36 N. J. Law (7 Vr.) 540 (1873), Justice Depue, speaking for the court of errors and appeals, says: “Where the public easement is such that possession, exclusive of any interference by the owner of the fee, is essential for its improvement, regulation and enjoyment, the only appropriate action to obtain the possession is ejectment. To deny this form of relief and remit the public to a remedy by an indictment for a nuisance would result in subjecting public rights to the varying moods of grand juries.”

The learned judge was there dealing with the choice.between ejectment and indictment, that is, between a civil remedy and a criminal remedy, and his reasoning applies here, and is supported by the Trenton Water• Power Case, supra.

And Vice-Chancellor Emery, in Grey v. Greenville and Hudson Railroad Co., 59 N. J. Eq. (14 Dick.) 372 (at the bottom of p. 387), says: “The uncertainty of protecting public rights in highways by indictments against nuisances was one reason for the establishment of the doctrine that these public rights should also be protected by ejectment and by injunction pursued by the municipal bodies vested with the control of the highways.” And he then quotes the language of Justice Depue which I have just quoted.

In support of his position in this behalf, counsel for defendants cites a long line of cases culminating in that o£ Inhabitants of the Township of Raritan v. Port Reading Railroad Co., 50 N. J. Eq. (4 Dick.) 11 (1891), decided by Chancellor McGill.

That case is also relied upon by the complainant in support of its position on the lack of right of the railroad company to narrow the highway, and is precisely in point on that subject.

But while deciding, as he did, that the duty of the railroad company was to place the supports of its bridge entirely outside the line of the highway (in that case fifty feet wide), he declined to grant an injunction on the ground that its proposed structure, which was to be supported by abutments only twenty-five feet wide, was entirely ample for all present and immediately prospective travel over the highway, and he remarked that under the doctrine of the Central Railroad Case, above cited (32 N. J. Law (8 Vr.) 220), it would be the duty of the railroad company to widen the passageway whenever the public travel required it, and after asserting the power of the township to maintain its suit for preventive remedy in this court, he refused to grant the injunction on the ground “that the travel over the highway is merely nominal, and that the roadway in use consisted of a single wagon track, and that the highway on each side of the wagon track where the abutments are being .erected is under brush and weeds, so that for all practical purposes the twenty-five-foot space between the abutments will be ample for the public accommodations at present and, perhaps, fox years to come.” He then remarked that the remedy by indictment was sufficient to abate the nuisance and restore to the public the use of the entire highway. The latter remark was entirely unnecessary for his decision, and it is entirely clear that it was based upon the facts in the ease which showed that no practical inconvenience would arise to the public from the contemplated encroachment. And it is equally clear that had the circumstances justified it he would have granted the injunction.

I am therefore of the opinion that the complainant is entitled to relief as to the first two charges above mentioned, namely, the location of the abutments of the bridge-within the limits of the road and the insufficient drainage of the cul-de-sac which defendant has created in the grade of the highway.

I stop here to say that the railway company, at the hearing, presented a plan which it had devised to remedy this collection of water by entirely diverting, all the surface water which comes down to the bridge from the long strip of railway to the east thereof. It may be that if it succeeds in such diversion the present long drain will be sufficient to carry away the water which accumulates there from the surface of the highway.

1 come now to the third duty which the complainant asserts rests upon the defendants and which they have not performed, and that is the maintaining in good order the highway under the bridge.

The language of the obligation is this: “To construct and keep in repair good and sufficient bridges or passages over or under the said railroad where any public or other road shall cross the same.”

I am unable to follow the very ingenious argument of the counsel for the complainant in support of his construction of that clause of the act. I think that the words “construct and keep in repair” applies wholly to the word “bridges.” It may be said that the railroad will, in self-protection, so to speak, keep a bridge like this, which conveys the railroad over the highway, in good repair. But that consideration does not apply to the ease where the bridge is erected to carry the highway over the railroad. The words “keep and repair” were intended to apply to the latter class of bridges and do not, in my judgment, apply to the word “passages” under the railroad. This, I think, is the reasonable construction. The object of the legislature was to prevent the railroad company from imposing upon the public any increased burden by reason of the railway crossing. Hence, where there is a crossing at grade, it is the duty of the railroad to keep in repair with proper planking, &c., so much of the highway as is immediately affected by the presence of its ties and rails. In the present case the burden of the public is not increased by the crossing except so far as the road is rendered more liable to fall into disrepair by the change in its grade and the accumulation of water in the culr-de-sac. But in these cases it must be borne in mind that the general traveling public over the railroad are to be considered, and that it has always been considered to be proper in adopting plans of crossings to avoid crossings at grade, and to that end that the wagonway should be somewhat depressed where necessary. But I do not see upon what principle under the statute the depression in this case can be held to impose on the railroad company the expense of keeping that part of the road in repair.

No evidence was adduced at the hearing, nor any suggestions made at the argument, as to what remedy the'court should adopt with regard to the narrowing of the highway both immediately under the bridge and on each side thereof, and I have not given the subject consideration. With regard to the drainage of the cul-de-sac I am inclined to think the defendants’ plans presented at the hearing should be subjected to the actual test. But upon these matters I express no definite opinion. They are proper subjects for consideration and further evidence on the subject will be provided for by the decree which I shall advise upon notice to the solicitors.