author: Parker, J.

text:
    Amelia O'Keefe, complainant-respondent, v. John O’Keefe, defendant-appellant.
    [Submitted June 9th, 1924.
    Decided October 20th, 1924.]
    1. This court will ordinarily not interfere with the discretionary action of the court of chancery in so dealing with pleadings as to reach a definite issue free from vagueness or evasiveness.
    2. Under section 26 of the Evidence act (Gonvp. Stat. j>. £££!)) our courts are entitled to take judicial notice of officially reported decisions of the courts of other states construing the statutes of such states.
    On appeal from order of the court of chancery striking out certain parts of answer and counter-claim as insufficient.
    The parties are husband and wife. The bill alleges (1) that by a deed dated August 16th, 1920, and recorded, &c., complainant and defendant, her husband, became seized as tenants by the entirety of certain lands in the State of New York. -This is admitted by the answer. (2) That rents for 1921 amounted 'to $3,320 and for 1922 to $3,410, all of which defendant collected and appropriated to his own use. That defendant received and appropriated $465 of the 1923 rents (denied), and that complainant received $1,392.30 of such rents, most of which she necessarily paid out in repairs, &e. The answer to this paragraph was struck out “as insufficient.”
    3. The second branch of the complaint deals with real estate in New Jersey. It sets up that by deed dated in October, 1920, and recorded, &c., the parties became seized by the entirety of a two-family house in Jersey City, one floor of which they occupied till October 5th, 1923, when defendant abandoned complainant, who continues to live there. That the rents of the other floor have always been taken and appropriated by defendant. The answer admits all this. except the “abandonment” and appropriation of rents, which are denied.
    4. That complainant, as one of two tenants by the entirety, is entitled to one-half of the net rents of all the above property; (5) has asked defendant for an accounting which was refused; (6) alleges defendant owes her on this account upwards of $3,000. These three paragraphs by number are “denied.”
    The complaint contains the usual prayer for answer, accounting, payment, enforcement by. lien, and so on.
    The counter-claim is in eleven paragraphs of averment, of which the first seven only are here pertinent, and six paragraphs of prayer, numbers two, three and four of which are under review. The order directed that these seven paragraphs of averment and three of prayer be struck out. They are to this effect—(1) the purchase of the New York property; (2) payment for it by defendant out of his own funds exclusively except as to an assumed mortgage; (3) that he built eight dwellings on it and paid for them $13,500 of his own money; (4) at a total cost of $18,000, none of which was paid by complainant; (5) restates the deed of the Jersey City property; (6) alleges it was owned by defendant solely before marriage; (7) but that he wished to mortgage it, and complainant refused to' join in the mortgage unless be would put the title in their joint names; for which reason “and upon certain representations made by complainant to defendant” he did so. Paragraph 2 of the prayer -is that a lien be declared in favor of defendant for $14,500 upon the New York property; (3) that complainant be directed to convey her apparent title therein to defendant saving her inchoate right of dower; (4) a similar prayer for conveyance of the Jersey City property.
    These ten paragraphs of the counter-claim were struck out “because they disclose no cause of action.”
    Paragraph 2 of the answer was, as already stated, struck out “as insufficient.”
    The general denials in the answer of the allegations of paragraph 4 of the bill were stricken out as insufficient.

      Mr. Warren Dixon, for the appellant.

      Messrs. Melosh, Morten & Melosh, for the respondent.
   The opinion of the court was delivered by

Parker, J.

The controversy is purely one of equity pleadings, subject, especially, to the recent statutes relating to the court of chancery and rules of that court. P. L. 1915 p. 184; for the rules, see 100 Atl. Rep. 7.

The first point made on the appeal is that paragraph 2 of the answer was improperly stricken. It reads as follows: “Paragraph 2 is denied, except that defendant admits that the rents received from the eight bungalows in 1921 amounted to $3,320, and for 1922 to $3,410; and that complainant received the rents for 1923 amounting to $1,392.50.”

Rule 65 in chancery reads, in part, as follows: “The answer must specifically admit, or deny, or explain, the material facts as stated in the bill of complaint, unless the defendant has no knowledge or information sufficient to form a belief, and so states.”

We think the paragraph was evasive and properly struck out on that ground. The complaint specifically charged that he had received certain rents and appropriated them to his own use. The answer speaks of “rents received.” Received by whom? If by defendant, did he use them in whole or part to pay legitimate expenses of the property ? The general “denial” seems to leave the issues of fact somewhat in _ the air. A complainant making a specific charge is entitled to have it squarely met in the answer, and the court is entitled to a clear issue to try out. To that end it must, necessarily, in its discretion, mould pleadings so as to' clarify the issue. Inasmuch as the order appealed from reserved to' the defendant an opportunty to answer over, no' substanial right has been infringed. We see no error here to call for a reversal.

It is argued, under this point, that the bill fails to show that complainant is entitled to an accounting of the rents of the New York property, and this for the reason that it fails to aver any statute of New York on which such right is founded; and unless such statute be pleaded and proved, the common law is presumed to be in force. One answer to- this is that the right under New York law is asserted, at least, inferentially, in paragraph 4 of the bill. No specific reference to a “statute” is needed if the pleading states the law of the other state to be thus and so. Moreover, by section- 26 of the Evidence act (Comp. Stat. p. 2229), the court may take judicial notice of the reports of decisions in other states, as evidence of their common law and judicial construction of statutes. Applying this statute, we observe by the decision in Hiles v. Fisher, 144 N. Y. 306; 39 N. E. Rep. 337, that the law as to entireties in that state is substanially identical with our own; in fact, that our decision in Buttlar v. Rosenblath, 42 N. J. Eq. 651, was adopted by the highest court of New York as an exponent of the rights of parties under their law and statutes. It has been followed in this state by O’Connell v. O’Connell, 98 N. J. Eq. 603, in which the right of the wife to an accounting of rents is specifically declared. This seems also to dispose of the second point argued in the brief of appellant.

We are now brought to the part of the counter-claim already abstracted and held to disclose no cause of action. This ruling we consider was correct. On the face of the counterclaim not a fact is stated that is inconsistent with the general rule that when a husband puts real estate in his wife’s name or builds on her land, equity presumes that it was by way of settlement or gift. Hood v. Hood, 83 N. J. Eq. 695; Ringold v. Ringold (Chancery), 116 Atl. Rep. 690, and cases cited.

The order will be affirmed, with costs.

For affirmance — TkE Chief-Justice, Trek chard, Parker, Minturn, Kalis ch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—15.

For reversal—None.


source: Caselaw Access Project

author: Minturn, J.

license: Public Domain

text:
    Samuel Silverman, complainant-appellant, v. Rudolf Klussman et al., defendants-respondents.
    [Submitted May term, 1924.
    Decided October 20th, 1924.]
    1. In a suit to establish a resulting trust concerning real property standing in the name of an individual, the testimony of the vendor of the property is admissible to show from what source the purchase price of the -property came, and its rejection by the trial court is reversible error.
    2. A delay of eight years in bringing such a suit is not fatal where the parties are not surprised or prejudiced, and the status of the parties has not changed so as to involve a condition of injustice between the present litigating- parties.
    On appeal from the court of chancery.

      Mr.'Saul Hemser, for the complainant- appellant.

      Mr. Frank W. Hastings, for the defendants-respondents.
   The opinion of the court was delivered by

Minturn, J.

This is an appeal from a final decree of the court of chancery, dismissing the bill of complaint which was filed to establish a resulting trust in property, in behalf of the complainant, in the city of Jersey City, fronting on what is known as Yan Winkle avenue. The complainant alleges that on or about November 3d, 1915, he gave to Charles W. Ostrum, a lawyer in Jersey City, the money with which to purchase the property. The complainant, under the arrangement, was to obtain a half interest therein, and Ostrum was to obtain the other half. The title to the property, however, was acquired by the defendant Klussman. Ostrum disappeared in 1921, and his story of the transaction was therefore unobtainable. The vice-chancellor found that defendant Klussman took title to the property at the request of his sister, Mrs. Ostrum, the wife of her departed husband, and that she paid the purchase price, and that the defendant agreed to hold the title for her use and benefit. Neither Klussman, the defendant, nor Mrs. Ostrum was examined as witnesses. With this knowledge of the fact in his possession, the complainant waited eight years before making any effort to assert his alleged title, and that fact induced the learned vice-chancellor to hold that he was in laches, and not entitled to the relief sought by his bill.

Our difficulty in sustaining the decree arises out of the fact that the learned trial court, during the course of the trial, overruled testimony quite material to the issue involved. For instance, the property was purchased from Bridget and Michael Lyons, and the vice-chancellor refused to admit theii testimony as to who paid them the purchase price for the property. We think the complainant was entitled to have this testimony admitted, since it had an important bearing upon the case, for the purpose of elucidating from what source the purchase-money came. Other testimony of a like character would be quite potent in the proper disposition of the case.

We conclude, therefore, that the case should be sent back for a rehearing for the purpose indicated, since a trust of this character may be established by proof of circumstances tantamount to positive proof, tending to evince that the person to whom the legal title passed was, in fact, not the person who was entitled according to the real intent and design of the parties to become the real or beneficial owner, thereby imposing upon the actual vendee the status of a constructive trustee for such beneficial owner. Cutler v. Tuttle, 19 N. J. Eq. 549; Down v. Down, 80 N. J. Eq. 68.

We are not impressed with the defendants’ contention of laches. While it may be urged that it was not pleaded as a defense, it is quite manifest, on the other hand, that the parties were not surprised, and cannot be prejudiced by its introduction. Neither the parties to the transaction nor the status of the parties has been changed, since the deed was delivered, so as to evolve a condition of injustice between the present litigating parties, which consideration presents the basic theory undertying the doctrine of laches. Tooker v. Sugar Refining Co., 80 N. J. Eq. 306; Galliher v. Cadwell, 145 U. S. 368.

We conclude, therefore, that the decree should be reversed, to the end that the cause may be retried upon the lines herein indicated.

For affirmance—None.

For reversal—The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, MoGlennon, Kays—15.


author: Kalisch, J.

text:
    Walter Weber and Marie Weber, his wife, and Ethel May Weller, complainants-respondents, v. Charles M. Heath, Howard Heath and S. Roy Heath, executors and trustees under the will of Samuel Heath, deceased; Charles M. Heath and Sarah Heath, individually; Howard Heath and Elizabeth Heath, individually; S. Roy Heath and Janet Heath, individually; Howard Heath, administrator of Mary E. Heath, deceased, and the Samuel Heath Company, defendants-appellants, v. Nettie May Weller and George Weller, defendants-respondents.
    [Argued May term, 1924.
    Decided October 20th, 1924.]
    Where a testator provided in his will that the net income from his business be paid to his wife during her lifetime, the business being' carried on by his two sons, selected by him in his lifetime, through the medium of a corporation in which the testator held all the stock except two shares, a contract having been made by the corporation with the two sons to pay them a stipulated salary for five years from, the time of the organization of the corporation, it is not the duty of the two sons, who were trustees under their father’s will, to terminate at the expiration of the five-year term, their contracts for salary, it being the evident intention of the testator that his sons should continue to manage the business and personally conduct and carry on the same after the five-year term had expired.
    On appeal from a decree advised by Vice-Chancellor Buchanan.

      Mr. Linton Sallerlhwaite, for the appellants.

      Mr. William J. Baches, for the complainants-respondents.

      Messrs. Wicojf & Banning, for the defendants-respondents, Nettie M. Weller and George Wellér.
   The opinion of the court was delivered by

Kalisch, J.

This appeal challenges the legal propriety of the court of chancery to direct the master named therein “to take an account of all moneys taken and received by Howard Heath and S. Eoy Heath by way of salaries as officers of the Samuel Heath Company since the expiration of the five-year period mentioned in the agreements of January 7th, 1907, set forth in the bill of complaint.”

The prayer of the bill is for a discovery and accounting by the executors and trustees under the will of Samuel Heath, deceased.

The contention on behalf of the appellants is that the facts, as developed by the testimony, under legal and equitable rules, laid no proper basis for that part of the decree appealed from and as above indicated.

Samuel Heath died on December 15th, 1907, at an advanced age. In his lifetime he was the owner of a valuable lumber business in Trenton, which he had conducted successfully and profitably for a number of years. In his employ was his son Howard, who was its manager. Another son, Eoy, was employed elsewhere.

On January 5th, 1907, a corporation was organized by Samuel Heath and his two sons, Howard Heath and S. Eoy Heath, as incorporators. Samuel Heath transferred the lumber company’s assets of the appraised value of $54,000 to the newty-formed corporation, and as a consideration for such transfer he retained five hundred and forty shares of stocks out of a total of five hundred and forty-two issued, of the par value of $100 per share, and assigned the two remaining shares to his sons, Howard and Eoy Heath, giving each one share. Samuel Heath was made the president, Howard the general manager, and Eoy secretary and treasurer. A few days after the organization of the company, on January 10th, 1907, it entered into two separate contracts, in writing, one with Howard and the other with Eoy, by which the two latter were to devote all their entire time and attention to the business, and not engage in any other occupation, for which service they were to be compensated by an annual salary of fifty per cent, of the net profits of the business, to be paid to each, after first deducting five pér cent, dividend upon the capital stock of the company. ' These contracts were to run for a period of five years, and thereafter to continue from year to year until terminated by a three months’ notice in writing, given by either party to the other. Subsequent to the making of these contracts, on January 17th, 1907, Samuel Heath made a will, and died on December 15th, 1907. He appointed his three sons, Howard, Eoy and Charles M., executors and trustees under the will, and directed that the net income of his estate should be paid to his wife during her life. She died on the 20th day of June, 1920. From the time of the testator’s death until the institution of these proceedings in the court below, in the month of October, 1922, the business of the corporation was carried on prosperously by the testator’s two sons Howard and Eoy, who were selected by their father in 1907 to take charge of- and manage it.

The theory of the bill of complaint and the point stressed in support thereof in the briefs of counsel of respondents are that under the testator’s will it was the duty of Howard and Eoy Heath, as trustees, to terminate at the expiration of the five-year term, the contracts made by the company with them on January 7th, 1907, and that they were obligated to do this, as representatives of the estate to procure for it large profits earned bjr the companj^, and having failed in the performance of this duty, and continuing to take the profits, they were in the position of trustees making contracts with themselves as individuals for their individual benefit.

The untenability of this position in the light of the undisputed facts is transpicuous.

At the time the contracts were entered into the testator was in his eightieth year, and naturally was solicitous that the business which he established originally should be continued by his sons on a prosperous basis in order to lend stability to the value of his shares of stock and to make possible the yield and payment of a dividend of five per cent, on the capital stock, out of the salaries fixed for Howard and Boy Heath. That it was the intention of the testator that his two sons Howard and Eoy Heath should continue to control and manage the business and to personally conduct and carry on the same after the testator’s death in accordance with the terms of the contracts made by the company with them receives strong support from that portion of the testator’^ will, made seven days after the contracts were entered into, wherein he says:

“I direct my said trustees or the survivors or survivor of them to transfer, assign and set over to my sons, Howard Heath and S; Eoy Heath, if living, their said equal shares of my estate in the capital stock of the Samuel Heath Company, it being my intention and desire that their shares of my estate shall be transferred to them in such form as to permit them to carry on .the business formerly conducted by me.”

To carry out the respondents’ theory to a logical sequence, it became the duty of the trustees, after the five-year term of their contracts with the corporation had expired, to cease to function in the capacity in which each was employed and to have proceeded to substitute in their places disinterested persons, and because the trustees failed in so doing they violated their trust and should he made to account for ail salaries and moneys received by them as officers of the Samuel Heath Company since January 1st, 1912. But this seems to be inherently absurd. Such a course of business conduct might tend to interfere with the prosperity of the business, if not, entirely, to ruin it. It would seem that the business was much more likely to be prosperous and profitable after the expiration of the five years under the same management than if it had been turned over for that purpose to others who had no interest in the business except the money they could make out of it in the way of salary.

The facts fail to disclose any dereliction on part of the trustees in the performance of their - duties. That burden was imposed by law on the complainants. It nowhere' appears that the continued management of the business of the corporation by the trustees was detrimental to the interests of the cestui que trusts. Such pro-of is utterly lacking, and in .order to compel an accounting it was essential that it should have appeared that the action of the trustees in failing to terminate the contracts was.injurious to those interests, and would have warranted the orphans court in removing them from their trusteeship.

The decree is reversed in so far as it directs the master to take an account of all money taken and received by Howard Heath and S. Roy Heath by way of salaries as officers of the Samuel Heath Company since the expiration of the five-year period mentioned in the agreement of January 7th, 1907.

For affirmance—Lloyd—1.

For reversal—The Chief-Justice, Teen chard, Parker, Minturn, Kalisch, Black, Campbell, White, Van Bus-kirk, Clark, McGlennon, Kays—12.


author: Black, J.

text:
    Federal Beneficial Association, complainant-respondent, v. Eastern Land Company, defendant-appellant.
    [Submitted May term. 1924.
    Decided October 20th, 1924.]
    1. A bond and mortgage made, executed and delivered by one company to another for the purpose of creating a credit, so that the latter company could make a satisfactory report to the insurance department of the state, are under the facts of the case legal and valid obligations.
    2. The presumption is that the bond and mortgage have been executed by authority of the defendant company until the contrary is clearly shown. That has not been done in the record of this case.
    On appeal.

      Messrs. Cole & Cole, for the appellant.

      Mr. Oscar B. Redraw, for the respondent.
   The opinion of the court was delivered bjr

Black, J.

The bill of complaint in this case was filed to foreclose a mortgage. The mortgage was dated December 31st, 1921. It was made by the Eastern Land Company, the defendant, to the complainant, to secure an indebtedness of $4,000. The mortgage was properly executed and regular in form. The answer denied there was any indebtedness. The defendant further sets up in its answer that it received no consideration whatever for the bond and mortgage referred to in the bill of complaint. The learned vice-chancellor, who heard the case, found the bond and mortgage were legal and valid obligations. He advised a decree in favor of the complainant for $4,490 with lawful interest thereon, to be computed from the 15th day of January, 1924. The record discloses these facts.

Some of the individuals and officers in the two companies were the same. In December, 1921, the two companies seemed to have been owned or controlled by the Adams family. The proof offered by the defense was that there was no money transaction between the two companies at the time the bond and mortgage were given. The defendant company received nothing of value when it gave the mortgage. This is not conclusive. The testimony further .shows that, on December 6th, 1921, as appears by the minutes of the complainant, “that a first mortgage of $4,000, to be made by the Eastern Land Company, be accepted in part payment of the above amount,” i. e., $6,272, charged to J. W. Held, that the complainant had a credit of “$4,000 covered by Eastern Land Company mortgage.” The money of the bond and mortgage in question wras credited on the books of the complainant, $2,000 to the funeral benefit fund and $2,000 to the national council fund. The Eastern Land Company gave that mortgage in payment of part, of that money that was drawn out, i. e., of different accounts. Alfred Adams, Jr., president of the defendant company and treasurer of the complainant, testified that he executed the mortgage; the mortgage was loaned to the company, so that it could make a report to go to the insurance department “a better looking report to the insurance department; they were jumping him a little bit.” The receipt recites: “Received * * * bond and mortgage for $4,000 as security for money loaned by Eederal Beneficial Association to Emanuel Barrick. Eederal Beneficial Association, J. W. Held,. organizer.” Charles R. Adams, vice-president of the complainant, testified: “I borrowed $1,200 from Joe, but Joe borrowed it from the complainant. Q. The money went from the Eederal Beneficial Association, the complainant, to Mr. Held? A. Yes. Q. And then he turned it over to you ? A. Yes.” The acknowledgement to the mortgage was taken by the witness as a commissioner of deeds. The mortgage to be used to lessen the loans of the complainant. This is sufficient to indicate the nature of the transaction between the two' companies. It is further summarized at pages 43 and 44 of the record. We are satisfied from the record the mortgage was made, executed and delivered for the benefit of the complainant, and for that purpose the defendant loaned its credit to the extent of $4,000, witnessed by the bond and mortgage in suit. The answer admits the execution of the bond and mortgage. The argument now is as the mortgage was only loaned to the complainant company for the purpose of falsifying its books, in order to deceive the banking commissioner, it is without consideration, and, therefore, void. That is not good morals and ought not to be accepted or sanctioned as sound law. Even so, a valid mortgage may be given, and the debt need not have been one due from the mortgagor. One owning property, either personal of real, may pledge it for the payment of a debt of another person. There need not be proven, and there need not exist, any consideration between the mortgagor and the mortgagee. The consideration need not move to the mortgagor, and the debt to secure which the mortgage is given may be the debt of another person. Perkins v. Trinity Realty Co., 69 N. J. Eq. 725, 726; affirmed, 71 Ibid. 304; Krouse v. Palmer, 89 Ibid. 220. It was said by this court that the presumption that the instrument is what it purports to be must prevail in the absence of clear and convincing evidence to the contrary. Cake v. Shull, 45 N. J. Eq. 213; Childs v. South Jersey Amusement Co., 95 N. J. Eq. 207. That principle is applicable to the consideration of a mortgage. It seems hardly necessary to refer to the point now urged, that the defendant company had no authority to make the bond and mortgage. Its execution, as stated, is admitted in the answer. There is no evidence or proof in the record of a lack of authority. It is merely asserted in the brief, because the defendant is a corporation, its officers lacked authority to execute the mortgage. The presumption is that the bond and mortgage have been executed by authority of the defendant corporation, until the contrary is clearly shown. This has not been done in the record before us. Leggett v. New Jersey, &c., Banking Co., 1 N. J. Eq. 541; Manhattan, &c., Co. v. New Jersey, &c., Co., 23 N. J. Eq. 161; In re West Jersey Traction Co., 59 N. J. Eq. 63; Parker v. Washoe Manufacturing Co., 49 N. J. Law 465.

The decree of the court of chancery is affirmed.

For affirmance — The Chibe-Justice, Trenchard, Parker, Minturn, Black, Campbell, Lloyd, White, Gardner, Van Bus kirk, Clark, McGlennon, Kays—13.

For reversal—Kalisch, Katzenbach—2.


text:
    New Jersey Painting Company, complainant-respondent, v. Local No. 26, Brotherhood of Painters, Decorators and Paperhangers of America, et al., defendants-appellants.
    [Argued May 29th, 1924.
    Decided October 20th, 1924.]
    1. The statute (P. L. 1883 p. 86; 8 Comp. Stat. of N. J. p. 3051 § 128), which provides that it shall not be unlawful for any two or moTe persons to unite, &c., to persuade, &c., by peaceable means, &c., to enter into any combination for or against leaving or entering into the employment of any person or corporation applied. The Aiotum in the ease of Jonas Glass Co. v. Glass Bottle Blowers Asso.. 77 N. J. Eq. 219. disapproved
    2. A clause in the constitution of a labor union, which provides that “where there is a difference between the wage scale of two cities all members employed upon a job done in one of the two cities by an employer from the other shall receive the higher of the two wage scales” is not illegal, as creating an unfair discrimination or an unfair restraint of trade. It may be enforced by a voluntary combination of its members. The prime object of the clause or rule is to establish a standard of wages. The record in this case does not present a case for injunctive relief.
    3. The mere combination of action by workers is not the element which gives an illegal character to the act. It is the illegality of-the purpose to be accomplished, or the illegal means used separately or in furtherance of that purpose, which makes the act illegal. Workmen may combine to accomplish an economic advantage such as to establish a standard of wages throughout the United States.
    On bill for injunction.
    Jlir. Henry Carless (Mr. Morris Hillquit, of the New York bar), for the appellants.

      Mr. Merritt Lane; for the respondents.
   The opinion of the court was delivered by

Black, J.

The meritorious question involved in this case is a controversy between an employer and organized labor. The bill of complaint filed contains a. prayer for an injunction against the defendants from ordering, advising, encouraging, parr ticipating in, persuading, contributing money or advice to any strike or cessation of work of any of complainant’s employes. Also, from suggesting to any person or persons, including members of said union, that they should refrain from being employed by the complainant. The bill of complaint specifically charges that in the month of January, 1922, at a convention of the International Painters and Paperhangers, held at Dallas, Texas, the convention passed a rule that, where a contractor took work away from his home town, he should pay the rate of wages and observe the union conditions prevailing in his home town, if that rate of wages or working conditions were more favorable to the workman than the union scale prevailing in the district in which the work was to be done, otherwise he should pay the union scale and observe the union conditions prevailing in the place in which the work was to done.

It is further alleged that such a rule is illegal and violative of the constitutional right of employers of labor, -in that it creates an illegal and unjust discrimination. It has so, it is alleged, the effect of making it more expensive for the person not living in the particular district to do1 work therein.

It is further alleged that, in the early part of 1922, the complainant took a contract for the painting and interior decorating of the Shelbourne Hotel in Atlantic City, and for th* Bamburger Building in Newark, New Jersey. The union scale of wages in Atlantic City and Newark were the same, to wit, $8 a day for eight hours’ work, five and a half days a week. The jobs were commenced under these conditions.

It is further alleged that on Thursday, the 4th day of May, 1922, Herman Landow, business representative of District No. 10, Brotherhood of Painters, Decorators and Paperhangers of America, ordered the employes of the complainant to cease work upon the job at Bamberger’s Building in Newark, New Jersey, unless the New York-working rules of $9 a day for eight hours’ work, five days a week, were observed. The employes of complainant were ordered to strike, and did strike, although they had no reason what soever to cease their work, other than the orders given by the said business agent, Herman Landow. A similar allegation is made as to the job on the Shelbo-ume Hotel in Atlantic City, New Jersey.

It is further alleged that the Bamberger job was not complete, and would not be completed, unless the complainant is allowed to proceed with the work without paying the prevailing wage scale in New York City. The complainant will not be able to finish the work and its business will be irreparably injured.

The decree follows closely the prayer of the bill and grants the restraint prayed for, without specifically mentioning the Bamberger job. It restrains the defendants from doing any acts or things in an attempt to enforce the provisions of the rule of the said union referred to in the bill of complaint. The grounds upon which the decree was advised by the learned vice-chancellor are, that such discrimination in the scale of wages is an unfair restraint of trade, inimical to the public welfare and in violation of public policy; that the operation of such rules and regulations by the union is illegal and the strike is for an unlawful purpose. There is substantially no dispute about the facts. So,, the whole problem for solution may be stated in a single sentence. Is such a rule of the defendants legal; and, if so-, may it be enforced by penalties imposed upon its members for disobedience, which they submit to voluntarily, without violating the law? Thus, it will be seen, that the question involved is much narrower in its scope and quite clearly distinguished from any of the adjudged cases that we have examined or cited involving labor disputes. The record shows that William H. Bennett, the foreman of the complainant at the Bamberger job, testified he went to work around the 1st of May, "some days had four, some days six, some days eight, some days two men. When work was started we-were paying $9 per day, the Few York rate. The business agent came to me and told me he wanted fifty per cent, of the work;” two Few York and two Few Jersey men. “I was to pay the Jersey men $8 per day, which was the Jersey rate.” “This was around'May 4th.” “The men wouldn’t go to work for $8.” “Q. What did he say? A. Came on the job, and as soon as these men went to him and told him that the foreman wanted them to go to work for $8 he came down and knocked me and another man off. If you don’t [i. e., quit work] he puts a fine on you. After that I reported to the company [i. e., to Bobert E. Maekay] ; after that I paid the Few York rate, $9 per day, for six or seven weeks, I should judge; until I got caught up with the job. Then I stopped work.” “Q. Then what happened? “Then went back on the job again? A. Fo. They put an ad. in the paper. I went back on the job and opened it up. “Two young men walked up and they asked me if I was doing the hiring. I told them yes, there was a job there for them to go to- wo-rk for $8 [eight dollars] per day. They say that was 'all right, that was all the Jersey scale was. They were willing to go to- work for it.’” Then another business agent walked up, W. J. Wylie. “Wylie went and was talking to- them.” “Q. What happened ? A. The men came to me and said, 'we can’t go- to- work,’ and walked away.” Bobert E. Maekay, of Eobert E. Maekay, Inc., of Fo. 326 West Twenty-third street, Few York City, testified that he owned the stock of the complainant company “Q. Is there anyone else beneficially interested in the corporation except yourself? A. Fo-, sir.” “Q. When did you make up your mind not to comply any longer with the union conditions with respect to labor? .4. When they got me where my hair was short at the start, and I waited until their hair got short and stopped. When the wo-rk got up so I could shut it down I did.” Becord, page 69. “I then advertised for local help. I shut it do-wn for several days to-got rid of the old men, see. Then I advertised for new men, and, when they applied, as Mr. Bennett said, they were offered the eight-dollar rate and were willing to go- to work, but the delegate would not let them go to- work.”

The complainant was a subcontractor; under an agreement dated April 13th, 1922, with George A. Fuller Company, for all the painting and finishing work required to complete section A of the new addition to- the Bamberger Building in Newark, New Jersey.

The -amendment or rule to the general constitution, section 62, as passed at Dallas, Texas, referred to in the bill of complaint, out of which arose this controversy, is as follows:

'‘Where there is a difference between the wage scale of two cities all members employed upon a job done in one of the two cities by an employer from the other [whether sent from the city in which the employer’s place of business is situated or hired in the city where the work is done] shall receive the higher of the two- wage scales.”

This rule was supplemented by another rule, which is that, at least, fifty per cent, of the- employes should be from the locality in which the work is being done. Such are the essential or dominant facts, which are not controverted.

In 1883 the legislature of New Jersey passed an act which provides (1) “that it shall not be unlawful for any two or more persons to- unite, combine or bind themselves by oath, covenant, agreement, alliance or other-wise, to persuade, advise or encourage-, by peaceable means, any person or persons to enter into- any combination for or against leaving or entering into the employment of any person, persons or corporation.” P. L. 1883 p. 36; 3 Comp. Stat, of N. J. p. 3051 § 128.

This statute was referred to- by this court in the case of Jonas Glass Co. v. Glass Bottle Blowers' Asso., 77 N. J. Eq. 219, thus the act- 1883 is properly to be treated as merely rendering the combination no- longer indictable-; in effect, as repealing the rule laid down by the supreme court of this state in the ease of State v. Donaldson, 32 N. J. Law 151. This statement was unnecessary to- the decision of that case. It was mere dictum. The basis, if not an exact copy of that statement, was an oral deliverance by Vice-Chancellor Pitnejr, in the case of Frank & Dugan v. Herold, 63 N. J. Eq. 447. The statute is much broader in its scope than the above statement of dictum would seem to indicate.

This statute has been under consideration in the court of chancery in several cases; thus, by Yice-Chancellor Green in the case of Mayer v. Journeymen Stonecutters’ Asso., 47 N. J. Eq. 531, where the learned vice-chancellor said: “So long as they [i. e., the workers] confine themselves to peaceable means to effect these ends [i. e., the control of the work connected with their trade], they are within the letter and spirit of the law, and not subject to the interference of the courts.” Barr v. Fssex Trades Council, 53 N. J. Eq. 119. This ease was cited with approval by the supreme court of Missouri in Lohse Patent Door Co. v. Fuelle, 215 Mo. 457. This statute left still subject to the inhibition of law every other illegal combination, except these mentioned in the statute. So, in the case of Cumberland Glass Manufacturing Co. v. Glass Bottle Blowers’ Asso., 59 N. J. Eq. 53, Vice-Chancellor Eeed said: “By its terms [i. e., the statute] it is lawful for the workmen to combine to persuade, by peaceable means, any person or persons to enter into any combination for the leaving or entering into the employment of any person or persons or corporation. The words employed by the statute cover a combination for the purpose of persuading others to combine, for the purpose of entering or leaving an employment. According to the act, the means adopted must-be peaceable.” Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 762; Baldwin Lumber Co. v. Local No. 560, 91 N. J. Eq. 240.

Since the passage of the statute in New Jersey, in 1883, the rule of the common law, that combinations of two or more persons, which wrere held to be illegal, has been greatly modified in this country, in its application to labor unions and labor dispertes. The weight of authority by the more recent eases now seems to be that, an act lawful, if done by one, is not ueoessarilv rendered unlawful by the mere fact of. concerted action. To- render such concerted act unlawful, the object or the means used must be unlawful or exercised ÍQX the malicious purpose of .injuring another. Mere concert of action, in and of itself, not being sufficient to render the act illegal. American Federation of Labor v. Bucks Stove, &c., Co., 33 App. D. C. 83; 32 L. R. A. (N. S.) 748; 221 U. S. 418; 16 R. C. L. 430 §§ 13, 14; Meier v. Speer, 96 Ark. 618; 32 L. R. A. (N. S.) 792; 24 Cyc. 819.

Employes, 'said Chief-Justice McSherry, have a. perfect legal right to fixe a price upon their labor, and to refuse to work unless that price is obtained. They have that right both as-individuals and in combination. They may organize to improve their condition and to secure better wages. My Maryland Lodge v. Adt, 100 Md. 238, 349; National Protective Asso. v. Cummings, 170 N. Y. 315, 321; 58 L. R. A. 135; 16 R. C. L; 432 § 16.

Bo, it has been held, they may stop work,- unless nonmembers are discharged, and will not be enjoined from so doing, where they 'act for' the good of their organization and not from malice or a desire to injure others. National Protective Asso. v. Cummings, 170 N. Y. 315. Contra, in the supreme court of New Jersey before the statute of 1883. State v. Donaldson, 32 N. J. Law 151.

■ The-standard of reasonable conduct, under all the circumstances of the case, is made the- test in some cases. Huskie v. Griffin, 75 N. H. 345; 27 L. R. A. (N. S.) 966.

-• The mere combination of action is not the element which gives an illegal character to the act. It is the illegality of the purpose to be accomplished, or the illegal means used separately or in furtherance of the purpose, which makes the act illegal. Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 273; 18 L. R. A. (N. S.) 707; Vegelahn v. Guntner, 167 Mass. 92, 98; 16. L. R. A. (N. S.) note 85.

The rule. adopted and promúlgated • by the defendants is not aimed'at and- does not apply to the complainant solely. It does not • seek to establish arbitrary discriminations between one person or corporation and another. It applies to all employing- painters within -the whole territory of .the United States who undertake to do- work o-utside of their home districts. 'It applies to all alike, automatically, who com© within the prescribed rule. Co-operation in some form now seems to be an economic necessity in all business, trade and occupations throughout the United States, if not throughout the entire -world..

An accurate and lucid statement of the rule to be applied was made by Chief-Justice Taft, when sitting as a circuit judge, in the case of Toledo, &c., Railroad Co. v. Pennsylvania Co., 54 Fed. Rep. 746; 19 L. R. A. 387, 392: “Ordinarily, when such a. combination of persons does not use violence, actual or threatened, to accomplish their purpose, it is difficult to point out with clearness the illegal means or end which makes the combination-.au unlawful conspiracy; for it is generally lawful for the combiners to withdraw their intercourse and its benefits from any person and to announce their intention of doing so, and it is equally lawful for the others, of their own motion, to do> that, which the combiners seek to compel them to do.”

None of these cases, however, nor any of the cases which we have found and examined, decide the precise point involved in the record of this case. There is a wealth of learning- and many eases in the books on this general topic. Some of the more recent illustrative and important ones are the following: Saulsbury v. Coopers’ International Union, 147 Ky. 170; Karges Furniture Co. v. Amalgamated Woodworkers’ Local Union, 165 Ind. 421, 428; Gray v. Building Trades Council, 91 Minn. 171; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Minasian v. Osborne, 210 Mass. 250; Pickett v. Walsh, 192 Mass. 572; Bossert v. Dhuy, 221 N. Y. 342; State v. Stockford, 77 Conn. 227; Hitchman Coal, &c., Co. v. Mitchell, 245 U. S. 229; 12 Corp. Jur. 570; 16 R. C. L. 430 §§ 13, 14; 24 Cyc. 819c; Eddy Trade Com.

The above cases, and nearly all the eases in ihis country, quite uniformly hold, and the complainant seems to concede, that the union may arbitrarily fix a uniform scale of wage applicable to all its members and strike to enforce its demands, i. e., either to maintain or advance a scale of wages; and the strike will not be interfered with by the courts if it is lawfully carried on. Bossert v. Dhuy, supra. But the argument by the complainant, followed by the learned vice-chancellor in this, case, seems to be based upon the idea that the union cannot in good faith frame or adopt a rule providing for a sliding scale of wages to fit ostensibly the varying local economic conditions throughout the United States, which, in effect, does discriminate against some employers as a class in the matter of wages to be paid. It seems to be based upon the ground that such regulations create an unfair restraint of trade. The attack is aimed, not at the combination, but at its effect upon the employers. This is unsound, both legally and economically. In the last analysis the prime object of the rule attacked is to establish a standard of wages. It is hardly necessary to enter into any extended discussion pointing out that in law or by analogy article 4, section 2, and article 14, section 1 of the constitution of the United States are not applicable to private contracts. These sections are directed against state action only. United States v. Harris, 106 U. S. 643. Economically, the conclusion reached by the lower court confuses the possible or probable effect of the defendants’ action upon the employers with the defendants’ rights. The law gives the defendants a right to sell their labor to whom they please, when and under such conditions as they may fix, individually or in combination. They may make rules and regulations, passed in good faith, providing for what they deem to1 be an eco^nomie advantage to themselves. If, in the enforcement of such rules and regulations, they violate no law, but act solely for the declared purpose, the courts ought not and cannot legally enjoin them from such concerted action, simply because such action may affect some employers. How can it be said that such rules and regulations create an unfair restraint of trade? If the law gives the workers such rights, it must protect them in their enjoyment. They cannot be enjoined from their use or interfered with by the courts. Employers have no vested interest in the labor of workers. We think the defendants, by the terms of the statute of 1883, both its letter and spirit, are within its protection. They are also within the protection of the law as declared in the cases cited. The cases, in which concerted action on the part of a body of workers has been held unlawful, have invariably been such, in which either the object sought to be attained had little or no bearing on the,interest of the workers or in which the methods employed by them were in themselves unlawful.

We, therefore, conclude the record does not present a case for injunctive relief. The decree of the court of chancery is reversed and the bill of complaint should be dismissed.

For affirmance—Kalisch, Katzenbach, Lloyd, White, Gardner—5.

For reversal—The Chief-Justice, Tren chard, Parker, Minturn, Black, Campbell, Van Buskirk, Clark, Mc-Glennon, Kays—10.


author: Campbell, J.

text:
    Theodore Blank and Wife, complainants-appellants, v. Borough of Haddonfield, defendant-respondent.
    [Submitted June 19th, 1924.
    Decided October 20th, 1924.]
    The existence and extent of a dedication on a map from which lots are sold is a question of intent, consisting of mixed law and fact, and where a municipality attempted to accept such dedication by ordinance, but prior thereto 'had filled in across a lake shown on the map and installed a sewer thereon, such acts completely frustrated and made impossible of accomplishment the dedication of the lake shown on the map, and, therefore, such attempted dedication fails.
    On appeal from a decree in the court of chancery.

      Mr. Lewis Starr, for the appellants.

      Mr. Patrick H. Harding, for the respondent.
   The opinion of the court was delivered by

Campbell, J.

This is an appeal from a decree advised by Vice-Chancellor Ingersoll, dismissing a bill of complaint in an action to quiet title to lands of appellants.

In 1893 the Haddonfield Land Companybecame the owner of a tract of land known as tire Redmond Farm, and caused the same to be mapped, such map being entitled “plan of the property of West Haddonfield Heights Land Company, filed August 18th, 1893, by Jacob Sickler, Register.”

On such map appears a rectangular area extending from Mount Vernon avenue to Elm avenue, in which is outlined an area marked “Lake Haddon,” surrounding which are irregular passageways and illustrations intended to represent trees.

The property of appellant is fifty feet by one hundred and seventy-five feet, lying in the southeast corner of this Lake Haddon tract.

The contention is that the map' was prepared by a surveyor, and the marking thereon of the rectangular plot with “Lake Haddon” therein was made by him without the authority or knowledge of the owner, the West Haddonfield Land Company; that upon discovering this, in February, 1894, the land company determined to secure releases from all persons to whom it had sold lots, and to destroy all old maps and secure new ones.

Quit-claim deeds, or waivers, were obtained from all purchasers except two, and on December 30th, 1897, a new map was prepared and filed. This new map is quite similar to the old one except “Lake Haddon” is not shown thereon, and the rectangular area in which it was shown on the old map is plotted and divided into lots. Up until 1933 all the lands included in the rectangular tract and “Lake Haddon” were assessed for taxes by the borough.

The question of the existence and extent of dedication has always been treated as one of intent, consisting of mixed law and fact. Wood v. Hurd, 34 N. J. Law 87; Central Railroad Co. v. State, 32 N. J. Law 220.

It might well have been found that the facts did not indicate and establish an intent to dedicate, but we need not disturb this finding of fact in the court below.

We find that the decree below dismissing the bill of complaint must be reversed for another reason.

On January 25th, 1922, the borough of Haddonfield, by ordinance, attempted to accept the alleged dedication of the Lake Haddon tract.

Prior thereto the borough had filled in across the lake tract Estaugh avenue and had installed therein a sewer to connect with lots 503 and 504, north of said tract, and owned by the borough, and upon which was erected a sewage pumping station.

There can be no question but what if there was an intent on the part of the land company to dedicate, that intent was to dedicate a public lake.

That intent and purpose was completely frustrated and made impossible of accomplishment by the filing in of Estaugh avenue and the construction of the sewer across the lake tract prior to the attempted acceptance by the borough.

Therefore, that which was tendered as a dedication did not exist at the time of acceptance, namely, Lake Haddon. An abandonment occurs where the use for which the property is dedicated becomes impossible of execution, or where the object of the use for which the property is dedicated wholly fails. 18 Corp. Jur. 123 § 160, and cases thereunder cited.

The dedication, if one there was, therefore failed, and the decree below is reversed, with costs.

For affirmance—Hone.

For reversal—The Chief-Justice, Trekchard, Parker. Minturk, Kalis ch, Black, Katzekbach, Campbell, Lloyd, White, Gardner, Yak Buskirk, Clark, McGleknon, Kays—15.


text:
    Daniel Sutter, Jr., appellant, v. Security Trust Company, respondent.
    [Submitted March 24th, 1924.
    Decided October 27th, 1924.]
    1. A drawer of a cheek which has been certified at his request before delivery may recall the same and require the certifying bank to refuse payment to the payee named therein if such payee is not a dona fide holder for value, but has obtained the check by fraud, perpetrated by him upon the maker.
    2. Upon suit by the payee named in the check against the certifying bank, upon its refusal to puy, after notice from the drawer to stop payment for reasons showing the payee not to be .a dona fide holder thereof for value, the bank can urge and have the benefit of any defense that the drawer could have against such payee, establishing that such payee obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration.
    3. The right of the maker of a check, certified at his request before delivery, is the same against an indorsee holder, who is not a holder in due course, as is his right to stop payment against the payee who is not a dona fide holder for value.
    4. Such rule has no application to a certified check, held by a payee who is a dona fide holder for value, nor to a holder in due course, although certified at the request of the drawer before delivery, nor where the check, after delivery, is certified at the request of the payee or holder.
    On appeal from a decree in the court of chancery.

      Mr. William J. Kraft, for the appellant.

      Messrs. French & Richards, for the respondent.
   The opinion of the court was delivered hy

Campbell, J.

Appellant had a checking account with respondent, and on March 25th, 1922, having a balance therein to his credit of $1,034.41, drew a check thereon to the order of his wife for $1,000, and on the same date procured the certification thereof by respondent. On the afternoon of the same day appellant delivered the certified check to his wife in consideration of a certain agreement between them concerning a separation. In such agreement the wife agreed, amongst other things, not to remove certain furniture from appellant’s home. March 25th was Saturday, and that night, after delivery of the cheek, the wife, in violation of her agreement, removed the furniture. On Monday morning, March 27th, appellant acquainted the treasurer of respondent with the circumstances, and requested that payment be stopped upon the check, and claims to have had such treasurer’s promise so to do, although this is denied by that officer. Subsequently, on the same day, appellant, accompanied by his attorney, went to the banking house of respondent, there discussed the matter with its president and treasurer, and signed and delivered to the respondent a request, in writing, to stop payment on the check.

Appellant insists that on March 27th, subsequently to his signing the stop-payment request, his wife presented the check to respondent for payment, and payment was refused by it because payment had been stopped. Eespondent’s treasurer asserts that such presentation was made by appellant’s wife on March 27th, but before the giving of the stop-payment request, and that Mrs. Sutter was told that her husband had informed the treasurer that there was some trouble existing between himself and his wife respecting the check, and that payment of the check should he deferred for a few days, and that Mrs. Sutter was therefore requested to postpone presentation of the cheek until Mr. Sutter could be seen.

Whatever the truth concerning, the presentation of the check for payment by Mrs. Sutter may be, she did on the same dajr, March 27th, go to her brother in Philadelphia, endorse the check over to him, and he deposited it in his bank in that city.

On March 30th the check was presented to respondent for payment through the Federal Eeserve Bank of Philadelphia, and payment refused and check protested on the ground of “payment stopped.”

On March 31st the Union National Bank of Philadelphia, where the check had been deposited, inquired of respondent why it had refused to make payment, and it was advised that it was a deferred payment, and that it would be a matter of only a few days when it was expected the check would be paid.

Upon request, appellant called at respondent’s bank; Avas told that the check was in the hands of an innocent third person, for value> and that respondent proposed to pay the same, and that unless he indemnified respondent the check would be paid.

Appellant declined to indemnify respondent, and on April 6th the check Avas again presented for payment, and Avas paid.

Demand was then made by appellant upon respondent for the payment to him of his alleged balance of $1,034.41, without deduction, for the payment of the certified check of $1,000. Such demand was refused except as to the balance of $34.41.

Suit was then instituted by appellant against the respondent for $1,034.41, in the1 supreme court.

The respondent answered and the cause was, by order, removed to the court of chancery, where, after hearing, a decree denying relief AAras advised by Vice-Chancellor Learning. It is from such decree that the present appeal is taken.

A chock may be certified by the bank, upon Avhich it is drawn, at the request of the payee or holder, and, when such is the case, the situation is as we held in Times Square Auto Co. v. Rutherford National Bank, 77 N. J. Law 649, and the maker cannot, thereafter, legally require the certifying hank not to pay, and, in a suit by the holder against the bank for the amount of the check, the bank cannot have the benefit of any defenses Avhich the maker might have against such payee or holder, because the instrument, by such method of certification, has then been discharged to the same extent as if it had been paid by the certifying bank.

There is another method of certification such as was employed in the case now before us, and that is at the request of the drawer or maker of the check before it reaches the hands of the payee therein named. When such a certification takes place, and there is a delivery to the payee, under circumstances and conditions making him a bona fide holder, for value, without notice of defect therein, then, also, the instrument is thereafter beyond recall by the maker as against such a payee.

Upon this all the authorities are in agreement. 5 Cyc. 540 b; 7 Corp. Jur. 705 § 432, and cases thereunder cited; Dan. Neg. Ins. (6th ed.) § 1603, and cases cited; 20 L. R. A. (N. S.) notes 290.

When the certification is made at the request of the maker, the obligation of the certifying bank is to make payment to the payee named therein, if such payee is a bona fide holder for value, or to a holder in due course, and such is the contract which the bank, in certifying, undertakes to perform for the maker, and toward and in favor of such a payee, or a holder in due course.

“Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto * * Neg. Ins. Act, supra, § 16; 8 Corp. Jur. 203 § 333.

“There can be no valid delivery where it was obtained by fraud, duress or mistake.”. Neg. Ins. Act, supra, § 55; 8 Corp. Jur. 203, 204 § 334.

“There must also be a valid, valuable consideration.” 8 Corp. Jur. 210 § 342.

“'There must be a legal consideration. It is well established that a contract founded on an illegal consideration cannot be enforced, and bills and notes are not excepted from the operation of this rule, but, when founded on such considerations, these instruments, as between the immediate parties and their privies, are always void.” 8 Corp. Jur. 241 §§ 380, 384.

“A bill of exchange may be revoked by the drawer before its acceptance or transfer to a bona fide holder for value.” 8 Corp. Jur. 64 § 89.

“The provisions of the Negotiable Instruments act, fixing the ways in which a person originally liable may be discharged, does not imply that the ordinary defenses, which go to the original liability of the party, such as fraud, duress or illegality in respect to the consideration, may not be resorted to as before, since the term discharge implies an original obligation, whereas, if fraud, duress or illegality intervened at the inception of the instrument, the maker never was liable.” 8 Corp. Jur. 611 § 849.

We hold, therefore, that a drawer of a check, which has been certified at his request before delivery, may recall the same and require the certifying bank to refuse payment to the payee named therein if such payee is not a bona fide holder, for value, but has obtained the check by fraud perpetrated by him upon the maker. And further, that upon suit by the payee named in the check against the certifying bank, upon its refusal to pay, after notice from the drawer to stop payment, for reasons showing the payee not to be a bona fide holder thereof, for value, the bank can urge and have the benefit of any defense that the drawer could have against such payee, establishing that such payee obtained the instrument, or any signature thereto* by fraud, duress or force and fear, or other unlawful means, or for an illegal consideration ; and also1 that the right of the maker of a check, certified at his request before delivery, is the same against an endorsee holder, who is not a holder, in due course, as is his right to stop payment against the payee who is not a bona fide holder, for value. Such rule, however, has no application to a certified check held by a payee who is a bona fide holder, for value, nor to a holder in due course, although certified at the request of the drawer before delivery, nor where the check, after delivery, is certified at the request of the payee or holder.

In the case now before us it was insisted aiid-urged that Edwin R. Mack, the brother of Mrs. Sutter, the payee named in the check, and who was the holder thereof as the endorsee of the payee, was a holder in due course, and for that reason the respondent was justified -in paying the amount of the chock to him. That is so if he was a holder in due course as contemplated and provided by the Negotiable Instruments act, but, upon the facts, the court below found that he was not a holder in due course, and with that finding we agree. It becomes necessary, therefore, to consider whether the facts disclose such a situation, that the bank, by reason of its certification, would have been justified in making payment to Mrs. Sutter, the payee, upon proper presentation of the check by her, notwithstanding the service of the notice to stop payment by her husband, the maker, and a disclosure by him to the officers of the bank of the condition upon which the check was obtained by Mrs. Sutter.

The facts in the case cause us to reach the conclusion, as did the court below, that there is nothing to justify us in holding that Mrs. Sutter, the payee, procured the check by any fraud perpetrated by her upon her husband. For this reason we conclude that the bank would have been justified in making payment of the check to Mrs. Sutter, upon presentation thereof by her. If the bank was not justified in making payment to Mrs. Sutter, the payee named in the check, then it was not justified in making payment to Mr. Mack, the endorsee, who, we have found, under the facts here presented, was not a holder in due course, and the stop-payment notice of the maker, under such conditions, would operate in favor of the maker against him as such holder, and would place the bank in a position where it was not justified in making payment to such an endorsee holder.

As the bank was, under the facts presented, justified and legally called upon to make payment to Mrs. Sutter, upon presentation and demand, as against the notice of the maker of the check to stop payment, its obligation, under the facts, was likewise to make payment to the endorsee holder, Mr. Mack.

The decree below is affirmed, with costs.

For affirmance—The Chief-Justice. Trenchakd, Parker, Mintukn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—15.

For reversal—None.


author: Lloyd, J.

text:
    Joseph J. Claron, complainant-appellant, v. Fred Thommessen, defendant-respondent.
    [Decided October 20th, 1924.]
    1. One who, under a contract to sell lands, demands of the purchaser performance of the contract in advance of the day fixed in the agreement, taking no further steps looking to a performance, and while retaining the deposit money, is not entitled under a bill for relief to have the agreement expunged from the record and surrendered for cancellation.
    2. Where a purchaser sues to recover a deposit made under an agreement to purchase lands he thereby commits himself to a rescission of the contract, and cannot thereafter compel specific enforcement of the contract in equity.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll.

      Messrs. Bourgeois & Coulomb, for the appellant.

      Mr. John C. Reed and Mr. Robert U. McCarter, for the respondent.
   The opinion of the court was delivered by

Lloyd, J.

Joseph J. Ciaron, complainant in the court below, was the owner of property in Atlantic City known as the Albany Arms Hotel, and in September, 1921, entered into an agreement with Pred Thommessen, the defendant below, for the sale of the property at the price of $27,000, Ciaron giving to Thommessen a receipt as follows:

“Agreement—J. J. Otaron and Fred Thommessen.
“Sept. 4, 1921.
“Received'of Fred Thommessen one thousand ($1.000) to bind the bargain of the Albany Arms Hotel and 183 ft. on Albany avenue by 105 ft. depth.
“Place is to be turned over complete with the exception of personal belongings approximately $300 in value. Sales price twenty-seven thousand dollars ($27,000)—$10,000 cash, mortgage of $17,000 for three years. Commission .to Foss ($500). Agreement to be drawn in the South Jersey Title Co., Sept. 6, 11 p. m., and all adjustments to be made at date of settlement. Possession to be given the 17th or before.
“J. J. Claron.”

The agreement was never carried out by the parties. It was followed, however, by a sequence of events in which each party participated. It fairly appears from the evidence that the agreement was inadvertently dated September 4th; the real date was September 6th. There arose almost immediately some uncertainty between the parties as to whether the agreement would be carried out, clue, as claimed by Claron, to Thommessen’s inability to finance the sale; and, as claimed by Thommessen, to Claron’s refusal to deliver a quantity of intoxicants, which he insisted were part of the bargain.

September 16th, 1921, Claron served upon Thommessen this notice:

“Take notice that I insist upon youi- performing the terms of your agreement for the purchase of the Albany Arms and that if you intend to demand possession thereof on September 17, 1921, as per our agreement, settlement must be made not later than Friday, September 16, 1921, at 11 o’clock in the forenoon, at the South Jersey Title and Finance Company’s office.
“Dated September 15, 1921.
“J. J. Claron.”

Matters were then permitted to. remain in abeyance, and nothing was done by either party in furtherance of the agreement. On January .31st, 1922, Claron entered into a contract to sell a portion of the property to other persons. On February 14th, 1922, Thommessen caused the receipt given to him by Claron to be recorded in the clerk’s office of Atlantic county. On March 7th, 1922, Thommessen commenced an action in the supreme court to recover the $1,000 deposit money paid to Claron on the signing of the above receipt, alleging that a part of the consideration of the purchase price were the above-mentioned intoxicating liquors, and that these liquors Ciaron had refused to deliver. This action was subsequently'discontinued.

On the 18th of March, 1922, Ciaron filed a bill in the court of chancery under an act entitled “An act to compel the determination of claims to real estate in certain causes and to quiet title to the same,” to have the cloud upon his title, occasioned by. the filing of the receipt of September 6th, removed. This suit proceeded to' a final decree, and the bill was dismissed on the ground that the complainant was not within the purview of the act. This decree was affirmed by the court of errors and appeals. 122 Atl. Rep. 435. On April 6th, 1923, the present bill was filed under the general powers of the court of chancery to compel the cancellation of the receipt and its removal from the records of the clerk’s office in Atlantic county. To1 this bill an answer was filed denying the equities of the complainant’s bill, and by way of counter-claim praying a decree for specific performance of the contract and a conveyance of the lands to the defendant. On this state of facts a decree was entered in the court below denying the prayer of the complainant for relief and awarding to the defendant the specific performance of the contract as prayed for in his answer.

We agree with the conclusion of the vice-chancellor denying to the complainant, Ciaron, the right to have the receipt expunged from the records of the clerk’s office in Atlantic county and canceled. It will be observed that the receipt given at the inception of the negotiations called for possession to be given by Ciaron on the 17th day of September, 1921. It also called for an agreement to be drawn at the South Jersey Title Company on September 6th (7th) at eleven p. m. Even if this agreement be regarded as expressing all that the parties contemplated, the complainant’s notice of September 15th insisting that if the defendant intended to demand possession on September 17th, 1921, settlement must be made not later than Friday, September 16th, 19.2], at eleven o’clock in the forenoon, wras in anticipation of any time fixed in the agreement for settlement. Whether under that agreement the 17th of September be regarded as the contemplated time of settlement, or whether a reasonable time would be construed to result fro-m theagreement itself, it was not within the power of Ciaron to require settlement on the 16th of September as a condition of performance of the agreement on his own part. Under these conditions, and in the absence of any subsequent legal demand upon Thommessen for compliance with the agreement by Ciaron, the latter, still retaining the deposit money of $1,000, is not entitled to come into- a court of equity to be relieved of the agreement made by himself and with which he had, in effect, failed, if not refused, to comply by making conditions of performance outside of the agreement with which Thommessen was not obliged to conform.

With the decree awarding specific performance of the contract to' Thommessen we cannot agree. If Ciaron is precluded from relief, Thommessen is in no better plight. When on March 7th, 1922, following the long lapse of time in which he made no effort to complete the purchase, he instituted suit against Ciaron to¡ recover the deposit money of $1,000, he irrevocably committed himself in solemn form to a repudiation of all obligation under the agreement. Having taken this step in rescission of the contract, he will not now be permitted to seék its enforcement in a court of conscience.

The views above expressed make unnecessary a consideration of the sufficiencj'’ of the agreement under the statute of frauds, or whether the agreement represented the completed contract between the parties. On grounds apart from these, and for the reasons already stated, the decree dismissing the bill of Ciaron will be affirmed, and the decree in favor of the defendant, Thommessen, will he reversed.

Affirmed as to- Ciaron—The Chiee-Justice, Trehchard, Parker, Mihturh, Kalis ch, Black, Katzehbach, Camp- 1 bell, Lloyd, White, Yah Buskirk, Clark, MoGlbhhoh, Kays—14.

Reversed as io Thommessen—The Chiee-Justice, Tren■ohard, Parker. Hinturn, Kalis ch, Black, Kaxzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McGlennon, Kays—14.


text:
    Jacob S. Nelkin, complainant-respondent, v. Pinkas F. Silverman and Etta Silverman, defendants-appellants.
    [Decided October 20th, 1924.]
    A mortgage given to secure the mortgagee against loss by reason •of the making'of a promissory' note, which promissory note is transferred to a third person for value before maturity, may, upon the happening of the event for which such mortgage was given to indemnify, be legally assigned by the mortgagee to the holder of the note, mho, thereupon, may foreclose the -mortgage -by suit in his own name.
    On appeal from a decree of the court of chancery advised Í03' Vice-Chancellor Baches.

      Mr. Benjamin M. Weinberg, for the appellants.

      Mr. Abraham Eenig, for the respondent.
   The opinion of the court was delivered by

Lloyd, J.

In the year 1920 the Brown-Hunkele Corporation and Max Silverman entered into a joint enterprise for the purpose of dealing in machinery and appliances of the General Motors Corporation. On March 21st, 1922, much of this' merchandise having been disposed of, it was found that the Brown-Hunkele Corporation had to the credit of the enterprise the sum of $9,000. This sum was deemed by the parties to be a surplus which could be divided. This Silverman requested should be done. There was, however, hanging over at the time a threatened suit by the motors company against the Brown-Hunkele Corporation which might wipe out a portion or the whole of the surplus. At Silverman’s urging the Brown-Hunkele Corporation turned over to- him its note for $4,500 upon his agreement that he would secure the corporation from any and all liability bvr reason of the delivery of the said note. Thereupon the defendants in this action, Pinkus P. Silverman and Etta Silverman, who are the father and mother of Max Silverman, at the request of their son and in fullfillment of this 'agreement, executed and delivered to the Brown-Hunkele Corporation a mortgage in the sum of $4,500 containing the provision:

“That if the mortgagors shall pay to the mortgagee the sum of $4,500, represented by a promissory note of even date herewith, made by the party of the second part and given to Max Silverman, or any renewal or renewals of the same [this mortgage is given to secure the party of the second part from any and all liability by reason of the delivery of-the party of the second part to Max Silver-man. of a promissory note in which the sum of $4,500 is due in three months from the date hereof, or any renewal or renewals of said note, and in the event said note is paid when due, or paid at any renewal date, the within mortgage is to be immediately canceled. otherwise to- remain in full force and effect.]

Upon receipt of the note for $4,500 Silverman sold it to Welkin, the complainant in this action. At maturity the note was not paid and the threatened litigation of the General Motors Corporation eventuated in a recovery, wiping out the supposed surplus. Thereupon the Brown-Iiunkele Corporation, to whom the mortgage was given, assigned the mortgage to Welkin, who filed his hill in the court of chancery to foreclose the mortgage. A decree was entered in favor of the complainant, and from that decree this appeal is taken.

As stated by the appellant the whole question to be decided is whether the complainant is in a position to maintain his suit for the foreclosure of the mortgage given by the defendants to secure payment of the note. Much is made in the brief of a contention that the right of subrogation does not-pass to the holder of the note against the non-payment of which the maker was indemnified -through the giving of the mortgage. It seems to us that the law of subrogation has no application to the facts of the case. The rights of the parties rest in contract. Nelkin, the purchaser of the note, became, by assignment, the holder of the mortgage given to indemnify the Brown-Hunkele Corporation against loss. It will be noted that the fundamental purpose of the giving of the mortgage was to secure the Brown-ITunkele Corporation from loss by reason of its having, in effect, paid to Silverman the one-half part of the ostensible surplus. Concretely, the condition of liability of the defendants in the mortgage proviso, itself is that if the note be paid at maturity by the mortgagors then the mortgage was to be void. This proviso was further elucidated by the statement therein that the mortgage was given to secure Brown-Hunkele Corporation from any and all liability by reason of the delivery of the note. At the time the mortgage was assigned the note had fallen due, had been protested for non-payment and remained unpaid; the claim of the General Motors Company had been reduced to judgment in a sum in excess of the supposed surplus, and the liability of Brown-Hunkele Corporation on its note had become fixed, so that the obligation on the mortgage became absolute and determined. It was, therefore, the written obligation to the company upon which had become due the sum of $4,500 with interest and protest charges. Thus complete, it was assignable, and it was entirely within the power of Brown-Hunkele Corporation to transfer it to the plaintiff, who was then the holder of the note. In this situation it is unnecessary to consider the rights of the parties as they might have been under the law of subrogation if the plaintiff had held no better title to the mortgage. As the holder of the note by negotiation from Silverman, and of the mortgage by assignment from Brown-Hunkele Corporation (the contingency upon which the mortgage was given to protect against having occurred), Nelkin was entitled to enforce payment by suit upou the note, or by foreclosure of the mortgage. He elected to proceed upon the mortgage, and the conclusions of the court below thereon were right.

The decree will be affirmed, with costs.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McGlennon, Kays—14.

For reversal—Hone.


author: White, J.

text:
    Henry J. Trainer, Ferdinand Thommessen and Margaret Fleming, complainants-appellees, v. Emily Calef, defendant-appellant.
    [Argued May 22d, 1924.
    Decided October 20th, 1924.]
    1. Covenants restricting the lawful use of land by its owner arestrictly constrne.d.
    2. An exception limiting the scope or effect of a covenant restricting the lawful use of land by its owner receives a liberal construction.
    3. Where a covenant restricted the use of land to “a single dwelling-house to be devoted exclusively to private dwelling-house purposes. A brick or stone private garage excepted held, that this exception was broad enough to include a garage-room constructed of brick or stone as a part of, or as an addition to, the dwelling-house; but, held, further, that such garage-room must be constructed of brick or stone, although the dwelling-house is otherwise of frame construction.
    On appeal from the court of. chancery.

      ■ Messrs. Thompson & Hanstein, for the defendant-appellant.

      Mr. Clarence L. Cole (Messrs. Cole & vote, on the brief), for the complainants-appellees.
   The opinion of the court was delivered by

White, J.

This is an appeal from so much of a decree of the court of chance^, advised by Vice-Chancellor Ingersoll, as enjoins the use as a garage for the storage of appellant’s private automobile, of a frame addition to her frame dwelling-house, constructed for that purpose,-because a violation of a neighborhood scheme restrictive covenant appearing in her title, in the following language, namely:

“That no building or buildings shall be erected upon the above-described premises except a single dwelling-house to be devoted exclusively to private dwelling-house purposes. A brick or stone private garage excepted.”

Appellant contends that in modern ■times, since the almost universal use of the automobile, the practice of providing for the storage of one of them in a garage-room, forming a part of a person’s dwelling-house, has become so prevalent that it no longer constitutes a violation of a covenant against any use other than as a private dwelling; citing Bassett v. Pepe, 110 Atl. Rep. (Conn.) 56, and Beckwith v. Pirung, 134 App. Div. 608; 119 N. Y. Supp. 444, as authority for this proposition.

. If the covenant here involved had omitted the final clause, namely, the garage exception, we would be called upon to pass upon this contention, but the exception clause seems to us to raise quite a different question. If the appellant’s contention is correct, the inquiry at once arises, What was the purpose of the garage exception clause? She thinks its purpose was to provide for a separate brick or stone private garage building; but the language does not say “separate.” If a private garage, within its-proper definition or meaning (which the Century Dictionary gives as "a place for keeping under cover;” "a place for private storage of a motor car”), may properly be a room in or added to a dwelling-house quite as well as a separate building devoted exclusively 'to private garage purposes, as obviously it may, the absence of the word "separate” in this garage exception clause necessitates such a construction of the clause as will not confine its operation to a separate garage building, because restrictive covenants are to be construed strictly according to the fair meaning of the language actually used and not enlarged in their restrictive effect by reading in words not actually used. Fortesque v. Carroll, 76 N. J. Eq. 583. The language of the garage-excepting clause here involved, if standing alone, therefore, would include a room' for private automobile storage in or added to the dwelling-house. Does the context of' the entire covenant, including the exception, read together, alter this construction? We think it does hot. ' •

The restrictive part of the covenant is two-fold—first, it restricts the erection of any building except "a single dwelling-house,” • and then, secondly, it restricts the use of such single dwelling-house "exclusively to private dwelling-house purposes.” Then comes the private garage exception, and withorzt saying whether it is intended as an exception to the first or to the second part of the prohibition of the covenant, it says, in effect, as we think, that nothing herein contained shall prevent the owner from providing and using a "place” constructed of brick or stone "for keeping his private' automobile under cover” or in "storage” on the restricted premises. In the absence of the restriction, such a place might have been constructed as a part of the dwelling-house or it might have been constructed separate therefrom. In the presence of .the restrictive covenant, however, and without the exception, if constructed in a separate building it might very well have been thought by the parties that it would violate the first or "single dwelling-house” part of the restriction, and if constructed as a part of the dwelling-house it might equally well have been thought by them to violate the second or "exclusively for private dwelling-house purposes” part of the restriction, It is impossible to tell from the context, therefore, to which part of the restriction the parties intended the exception to apply. In fact it may well be that they intended it to apply to both parts, although we are here only interested in deciding whether it, in fact, applies to the second part.

Under these circumstances the policy 'of the' law again comes in and resolves the question of some doubt, as it certainly is, in favor of the construction most against or contrary to the restrictive effect of the covenant,' that is, it gives the more liberal construction to the exception which limits the-restrictive effect of the covenant. We think, therefore, that taking the whole covenant into consideration there was nothing therein Which prevents the appellant from constructing as an addition to her dwelling- a room.or.place built of brick or stone for the storage of her private automobile.

This brings us to the other question involved, which is, may-appellant, in constructing such a place as'ah addition to her .frame 'dwelling-house, disregard the' provision of the garage-exception clause which requires such place to be built of brick ox stone, and to construct it of f raime? Appellant claims that she may do this, because, as before stated, she thinks that in making this place or garage a part of her dwelling, which does not have to be, and, in fact, is not of brick or stone construction, she is not violating the “exclusively for dwelling-house purposes” part of 'the restriction, and, consequently, she does not need the aid' of the garage-exception-clause. The difficulty with this contention is that the exception clause is there, and, as was thought by the vice-chancellor, the effect of it is to materially modify what might well have been the -situation if it had been omitted. Whatever might have resulted if this garage-exception clause had been left out; it is quite clear that by including it, the parties intended that whatever private garage was constructed on the premises, wherever situate, whether a part of the dwelling-house or separate- from it, such a garage should, for fire protection purposes, be constructed of brick or stone.

We think, therefore, that in constructing the garage-room of frame, the appellant was violating an important element of the restrictive covenant involved, which element was one for the mutual protection of all of those interested in the neighborhood scheme, and which they were, consequently, mutually entitled to enforce against each'other. We think, therefore, that the injunction decree appealed from was properly entered and should be and is hereby affirmed. .

For affirmance—The Chief-Justice, Teenchakd, MinTUKisr, Black, Katzekbach, Campbell, Li-oyd, White, Gaedkee, Yak Buskiek, McGLEjsnsroisr—11.

For reversal—None.


author: Clark, J.

text:
    Ray Shore, complainant-respondent, v. Joseph B. Shore, defendant-appellant.
    [Decided October 20th, 1924.]
    1. Evidence on a bill for maintenance considered, and held that the efforts of a husband, who had left his wife suddenly and in the middle of the night, to have her rejoin him and resume their manned life were not sincere and did not affect her right to support although she was still living apart from him.
    2. Where the order obtained against a husband in the juvenile court requiring him to make payments to his wife is vacated by that court upon the husband’s filing a petition for divorce, the wife may enforce her own remedies against the husband or his property for maintenance under the Divorce and Maintenance act. P. L. 1902 p. 1/82.

    3. The public policy prescribing corroboration of the parties in actions for the dissolution of the marriage relation does not prevail in suits for maintenance, and a court of equity may make a decree in favor of the wife on such a suit although her testimony is uncorroborated. Pinhinson v. Pinhinson, 92 X. J. Eq. 669, followed.

      On appeal from the court of chancery.

      Mr. William Elmer Brown, Jr., for the complainant-respondent.

      Messrs. Cole. & Cole, for the defendant-appellant.
   The opinion of the court was delivered by

Clark, J.

The young people concerned in this appeal from the court of chancery were married September 14-th, 1919. Their marital happiness seems to have been of a decidedly ephemeral character. Early on the morning of October 30th, 1919, or about six weeks after their marriage, defendant left the room they occupied in Atlantic Citj', and they have not lived together since. The husband and wife give conflicting accounts of the circumstances surrounding this nocturnal flitting on the part of the former. Suffice it to say that the defendant’s story that he had selected the unconventional hour of two' a. M. to move into a new apartment seems hardly credible. Furthermore, his note of the next morning, demanding his clothes and guaranteeing their .production by economic threats, is not in harmony with the idea of a family moving.

From that time until the present, the history of the relations of these parties, with- one exception, is to be found largely in the court records of the state. We shall deal with the exception more fully hereafter. On March 26th, 1920, Mrs. Shore complained to the juvenile court of Atlantic county and charged that her husband was a disorderly person, because he had abandoned her and was refusing to support her. This proceeding was apparently—although, the record is silent on this point—had under section 17 of the Disorderly Persons act as amended (P. L. 1911 p.117), and the act conferring upon the juvenile court concurrent jurisdiction over such causes. P. L. 1912 p. 630, as amended, P. L. 1918 p. 214. At any rate, after a hearing at which he was examined, Shore was ordered to pay his wife $7.50 a week. Some time in August,' 1920, defendant filed a petition for divorce in the court of cháneery, to- which complainant in this action filed her answer and cross-petition. The' court of chancery ordered the payment of alimony pendente lite, and, in consequence of that order, the juvenile court vacated its former order for the payments under the authority of the Disorderly Persons act, supra. The1 petition and cross-petition in the-divorce action were heard by the learned vice-chancellor who sits below in this cause, and were dismissed for lack of corroborative proof. Three months after this dismissal the present bill for maintenance, under section 26 of the Divorce act (P. L. 1907 p. 482), was instituted, and was disposed of by the court of chancery in accordance with the contentions of the complainant.

The rose among the thorns of all this litigation was a note sent by the defendant to his wife on February 12th, 1920, approximately fourteen weeks after he had so unceremoniously left his bride. . -This note informed her that he had “fixed up some rooms and wanted her to come back.” It was typewritten down to and including the signature. It seems to have been neither preceded nor followed by any personal conversations or interviews nor even requests for such conversations or interviews on the part of the husband. The rock on ' which the matrimonial bark originally foundered appears to have been a decided difference of opinion as to the economic scale on which the future home was to be based. Mrs. Shore, true to the traditional, conception, preferred an apartment which her spouse considered beyond their means —this income was derived from his ownership- of a small drug store. The note made no allusion to the character of these proposed quarters, and was altogether anything brrt the burning words of a repentant and repining husband. That it did not, however, belie his real feelings, is apparent from his own testimony- in the juvenile court a month later, where he stated that his regard for his wife was that' of a “friend.” . .

. The learned vice-chancellor held that the defendant had abandoned his wife within the meaning of the statute, and in this conclusion we agree with him. The other element necessary before the wife could prevail in a suit for maintenance under the statute, namely, the failure to provide for her, being admitted, he properly decreed the payment of $10 per week. Weigand v. Weigand, 41 N. J. Eq. 202. The physical separation of the couple being also admitted, we need only concern ourselves, as did the court -below, with the mental element also essential, under the terms of the statute, to constitute an abandonment without justifiable cause. On this point we think the reasoning of the learned vice-chancellor is sound. The attempt of the defendant to place upon his wife the responsibility for the breaking up of their home was, in our view, specious. A husband who leaves the bedside of his recent bride stealthily and by night must do more than send her a formal invitation some months later to rejoin him in the rooms, which were the original casus belli. Parker v. Parker, 57 N. J. Eq. 577. Any other doctrine would, in our opinion, enable errant husbands too easily to escape their duty of support. We acknowledge the husband’s right, within reasonable limits, of course, to select the home and prescribe its incidents. Nevertheless, a disagreement, even on that vital issue in their wedded life, does not- entitle a husband to follow up an unreasoning departure with a cold-blooded request for his wife’s return, unaccompanied by the natural evidences of affection, which would convince her of the sincerity of his desire for the resumption of their married life.

We feel constrained to touch upon two other matters not dealt with in the opinion of the learned vice-chancellor, although they seem to have been argued to. some extent before him, and appear in the briefs of counsel presented to this court.

It is suggested that the proceedings in the juvenile court are a bar to the present action for maintenance, and the ease of Roarke, v. Roarke, 77 N. J. Eq. 181, is cited in support of this position. We think that the facts in the case at bar make the legal principles applicable quite distinguishable from those applied by the court of chancery in that case. We shall therefore venture to express no opinion upon the views therein expressed. It is fundamental that a judgment is necessary to support a plea of res judicata. 24 Am. & Eng. Encycl. L. 792. Equally, of course, such a judgment must be final, and so a judgment which has been vacated or set aside caimot operate as a bar. 24 Am. & Eng. Encycl. L. 813; Graefs v. Bernard, 162 Mass. 300. Since, in the instant case, the order of the juvenile court was vacated, we need be troubled no further on the score of res judicata;.

It is, of course, obvious that section 17 of the Disorderly Persons act and section 26 of the Chancery act give to an abandoned wife two forums, in each of which she may prosecute her remedy for support. The court of chancery in the case of Roarke v. Roarke, supra, found an election between these two where the injured wife was being paid under an order of a magistrate. That a person cannot pursue both of two inconsistent remedies is an established doctrine of the law. 7 Encycl. Pl. & Pr. 767. This is simple of statement but difficirlt of definition. The authorities are in considerable confusion as to just what remedies are inconsistent and require an election, and what other remedies are cumulative and can be pursued concurrently. 9 Rul. Oase L. 958. Fortunately, we do not feel that we need possibly add to the confusion by deciding that question as to the remedies employed in the case at bar. The reason underlying the doc trine of election of remedies is the desire of the courts to afford protection against the danger of vexation by litigation. United States v. Oregon Lumber Co., 260 U. S. 290. It is not fair to require a man to prepare his proofs success full v on one theory, only to be assailed later on another inconsistent theory. It is a different matter, however, when the moving party’s remedy has proved ineffective, not through the incidences of the proof, but because the opposing party has himself, through action extraneous thereto, brought about a different legal situation. Palmer v. Bizzell, 229 S. W. Rep. (Tex.) 971, Such, we think, was the action of the defendant in bringing the action for divorce, which resulted in the vacation-of the order of the juvenile court, and, therefore, made any election of no binding effect. Although counsel do not appear to have cited it, we are reinforced in this view by the opinion of Vice-Chancellor Emery in tlie case of Becker v. Becker, 90 Atl. Rep. 675, where he distinguished Roarlce v. Roarlce, supra, on a state of facts on all fours with those of the instant, case.

The well-settled rule that a divorce will not be granted upon the 'uncorroborated testimony of -the parties requires little-citation'of authority. McShane v. McShane, 45 N. J. Eq. 342. It might be observed, however, that where it is necessary to establish as part of the complainant’s proof a mental state in one or the other of the parties, as in the instant case, the courts'have been somewhat troubled by the strictness of the rule. This has led to their finding corroboration in the “circumstances of the case as shown by the expression -and conduct of the defendant, together with the letters of the parties.” Foote v. Foote, 71 N. J. Eq. 273. We are inclined to think that the attitude of defendant in this case, together with his letter, brings it within the rule above cited and furnishes sufficient corroboration. However that may be, inasmuch as defendant’s counsel-seeks to apply this rule to actions for maintenance under the statute and to defeat the complainant’s ease on that ground, we shall address ourselves to the point.

This question appears to have been resolved contrary to defendant’s contention by the ratio decidendi of a recent case in this, court. Pinkinson v. Pinkinson, 92 N. J. Eq. 669. It is therefore unnecessary to consider it at- length-in this opinion. We know that in the . later Roman and the civil law generally the process of'proof, rested fundamentally on a numerical system. Wigm. Ev. (2d ed.) 2033. The samé was true of 'the canon or ecclesiastical law. This system, in-attempting to measure the probative value of a wit-' nesses assertion, to a great extent overlooked the personal element behind the assertion. It never prevailed generally at common law, largely probably because the fact that the jurors were originally themselves witnesses, made impossible any numerical balance. Nevertheless, we can readily call to mind both certain kind of witnesses, i. e., accomplices, and certain kind? of issues that require corroboration, even in our system of law. Among the latter, actions for divorce have always been included. This has been the case in some jurisdictions by statute. In New Jersey, however, there is no statute to that effect, and the rule has been declared to rest in considerations of sound public policy. Rogers v. Rogers, 89 N. J. Eq. 1.

The public policy which has influenced the courts is, of course, their interest in preserving the married status, SO' important-to the state, from dissolution by means of collusive testimony. Thus, both because of the nature of the issue and the kind of witnesses adduced thereto, corroborative evidence is insisted upon in actions for the dissolution of the marriage relation. Mr. Justice Katzenbach, in Pinkinson v. Pinkinson, supra, points out that a 'bill for maintenance is intended to preserve, not dissolve, the marital status, in that it is aimed at enforcing the duty of support by a husband, one of the primary obligations flowing from the relationship, furthermore, since separation agreements are permissible, we can think of no reason why a husband should prefer to have his wife’s support ordered by a court as the result of collusive testimony. The judicial history of the rule requiring corroboration in divorce actions indicates that the courts adopted the theory prevalent in ihe ecclesiastical courts when they found it consonant with their conceptions of public policy. As we have seen that the policy applicable to bills for maintenance is a different one, it is not necessary to go into the question of whether the jurisdiction over such bills is purely derived from statute, or i? a continuation in the court of chancery of the jurisdiction of the ecclesiastical courts. See Lynde v. Lynde, 64 N. J. Eq. 736.

The decree is affirmed.

For . affirmance —■ The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, McGlennon, Kays—15.

For reversal—None.