author: Kays, J.

text:
    In the matter of the probate of the alleged will of Theodore Gaddis, deceased.
    [Submitted May term, 1924.
    Decided October 20th, 1924.]
    1. Where the relations existing between a testator and his beneficiary were meretricious, no presumption of undue influence is raised from this fact alone.
    2. The existence of such meretricious relations does not shift the burden upon the beneficiary to take the stand in her own behalf for the purpose of disproving undue influence on her part.
    3. The mere fact that the chief beneficiary was a mistress of the testator and ¡possessed considerable influence over him does not raise the presumption that she exercised such influence in the making of his will.
    On appeal from a decree of the prerogative court advised by Yice-Orclinary Foster.

      Jlr. Abner Kalisch and Messrs. Kalisch & Kalisch, for the proponent-appellant.

      Messrs. Heine, Bradner & Laird and Mr. M. Casewell Heine, for the caveators-respondents.
   The opinion of the court was delivered by

Kays, J.

This is an appeal from a decree of the prerogative court refusing the probate of a paper-writing purporting to be the last wiE and testament of Theodore Gaddis, who died February 8th, 1922.

The deceased by his said will left all his property to a friend, Alice Cox, and named her sole executrix. Certain of the nephews and nieces of the decedent filed caveats against the probating of the will,'and the orphans court of Essex county, with Judge Flannagan sitting, after taking considerable testimony, refused the probating of the same on the ground that the will was the result of undue influence exercised by Miss Cos, the beneficiary and' executrix. ■ Upon appeal to the prerogative court, Vice-Chancellor Foster, sitting as vice-ordinary, affirmed the decree of the orphans court. ' • ■

The testimony discloses the following facts in the case:

Theodore Gaddis, who at one time was a prosperous business man, had business reverses, and failed about the latter part of 1918. After his failure Mr. -Gaddis'' and his wife lived with Mrs. and Mr. Eppele. Mrs. Eppele was a niece of Mr. Gaddis. Prior to Mr. Gaddis5 failure he had'in his employ a young woman by the name, of Alice Cox, and after the death of Mrs. Gaddis, which occurred in the May following his failure, he left the home of his niece, Mrs. Eppele, and went to live at the home of Miss Co-x, in Newark, New Jersey. It seems to be conceded by counsel for Miss 'Cox that the relations of the testator and Miss Cox were meretricious, and that such relations had existed between them ■prior to the death of Mrs; Gaddis. It appears that Miss Cox took care of Mr. Gaddis at her home and also attended him at the hospital during his last sickness. It may be said from the testimony" that Miss Cox possessed considerable- influence over Mr. Gaddis during the time which" such meretricious relations relations continued and existed. There is nothing to show that Mr. Gaddis did not go to live at her home except by his own choice.

We are of the opinion that there is nothing disclosed by the testimony which will justify the conclusion that Miss Cox exerted unduly her influence over Mr. Gaddis in the making of this will. We cannot reach the conclusion that Miss Cox, rather than Mr. G-addis, occupied the dominant position, which would shift the burden upon her to prove the absence of such undue influence. It may be that, her failure to be sworn was induced by the fact that she did not wish to disclose her intimate relations with Mr. Gaddis. However, such proof was not necessary unless the evidence disclosed that she. influenced the testator directly in procuring a will in her favor. This court held in the Middleton Case, 68 N. J. Eq. 793, 'affirming a decision of Vice-Ordinary Bergen, the mere fact that a testator made his mistress the chief beneficiary of his will, raises no' presumption that she had secured an influence over him which she would, naturally, improperly exert to advance her own interest. The testimony of Mr. Werner, the attorney who’ drew the will in this case, discloses that he was alone in the room at the hospital with the testator when Mr. Gaddis told him how he wished to dispose' of - his property, and that he thereupon drew the will without leaving the- room. The evidence of the doctor who attended Mr. Gaddis: discloses that he was of sound.mind.

It seems to• us that the will was a natural one, which would follow as a result of the relations existing between the testator and beneficiary. ■ The-testator realized the obligations which he owed to Miss Cox resulting from the intimate relations which existed between them, and for the care which she had and was giving him. The mere possession of influence by Miss Cox, and the opportunity and motive to exert it upon the testator, does not. establish the existence of such undue influence in the making of the will by Mr. Gaddis. There is no1 evidence 'which shows that the testator was dominated and coerced by Miss Cox in disposing of his property. The fact that the relations between the testator and Miss Cox-existed in violation of law, or that such relations were immoral, is not sirfficient ground for invalidating the will.

It seems to us, therefore, that the burden was not shifted upon Miss Cox to disprove undue influence on her part; nor does it seem that her influence, whether powerful or slight, was exercised to destroy the free agency of the testator; nor that Miss Cox, rather than Mr. Gaddis, occupied the dominant position.

The probate of the will, therefore, was improperly denied.

The decree of the prerogative court will be reversed, with costs.

For affirmance—Pabkeb, Katzenbach, Lloyd, White —4.

For reversal—The Ohiee-Justice, Tbenchard, Mintubn, Kalisch, Black, Campbell, Gardner, Van Bus-kirk, Clark, McGlennon, Kays—11.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marya Traska, appellant, v. Mary Piekielko et al., respondents.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 9C N. J. Eg. 20h-

      Mr. Samuel II. Nelson and Mr. Louis A. Fast, for the appellant.

      Mr. John D. Fischbeck and Mr. John Q. Frey, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

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

For reversal—None.


text:
    Harry H. Tantum, respondent, v. Anna Keller, appellant.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 95 N. J. Fq. J/.66.

      Mr. Gassel R. Ruhlman, for the respondent.

      Mr. James J. McGoogan, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion hied in the court below by Vice-Chancellor Buchanan.

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

For reversal—None.


text:
    Alice R. Taft, as executrix, &c., respondent, v. Mary Bely et al., appellants.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 96 N. J. Eq. im.

      Messrs. Benny & Gruden, for the respondent.

      Mr. Aaron A. Melnik er, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — Kalisch, Katzehbach, Campbell, White, Vah Buskirk, Clark, McGlekkoh—7.

For reversal—The Chief-Justice, Trestchard, Parker. Mikturk, Black, Llotd, Eats—7.


text:
    Kalman Tabatsko, petitioner-respondent, v. Anna Tabatsko, defendant-appellant.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who delivered the following opinion orally:
    “I think there should be a decree in favor of the petitioner, and that defendant’s cross-petition should be dismissed. It appears from the evidence that prior to October 26th, 1920, there had been no serious differences between the parties, at least their troubles had not been such that the wife would have been justified, at that time, in leaving her husband’s home. On the 26th or 27th of October, 1920, she took her child and some wearing apparel and told her husband she was going to visit her parents. She says that on other occasions when she. visited her parents just prior to that time he had not objected to her going, but had complained when she returned that she stayed too long, and that on this occasion he did not object to her going, and she went with the intention of making a longer stay than usual because her parents were moving from Astoria to New York, and she desired to assist them in moving. She says she knew she was going to stay a couple of days, and the fact is she remained a week, or nearly a week, and she had not informed her husband that she was going to be gone for that length of time. When she returned after this absence, the length of which was unexpected on his part, he was annoyed, and he had some justification in being annoyed at her prolonged absence and a quarrel, or argument, may have arisen. She says he called her vile names on Monday night after her return; this he denies. She says they did speak for three days. During that three-day period nothing- could have happened to add to what had occurred between them before that time which would justify her in separating from her husband, and yet she says on the day she left, which must have been some time early in November, 1920, she left with the intention of not coming back, although she says she was willing to return. Very shortly after she left she consulted a lawyer. Now, if it had been her intention merely to scare her husband into believing that she was going to leave him, if he had done things wrong and did not show contrition for what he had done, she would not have immediately consulted a lawyer about legal proceedings. On the lawyer’s advice, a week later she returned with an expressman, her intention being to take her belongings and make her separation complete. She said her husband opened the door, did not object to her taking her things, accompanied her to the door when she left and 'to-ld her to get the hell out of here. The petitioner denies that he used any such expression to her. On the contrary, he says he urged her to stay; that he told her she should stay, and that she better think well over what she was doing. In this he is corroborated by the testimony of Mr. G-oerlieh, who was present at the time. Mr. Goerlich says that he spoke to the defendant something to the same effect, and she told him she did not want to hear anything about it—that she was going. On this occasion she tore a photograph of herself from a picture frame, taking the photograph out of the frame for the purpose of destroying her picture. That act was indicative of her frame of mind, of her temper and of her intention, and shows that she was through with her husband, and was going to have nothing more to do with him. A week or so afterward he went to see her father at his place of business. He certainly went there for some purpose that had to do with his wife’s separation from him. He did not go there to say nothing to his wife’s father. He certainly did not go there to have the father complain to him, as the father says he did, about his treatment of his wife. The fair inference from the fact that he went there at all is that he went to say something about his wife and her return. I think his statement that he asked his father-in-law where his wife was, and said he wanted her back, and that the father-in-law would not speak to him is true, and is corroborated by the fact that the father-in-law says that when he came out after his mid-day meal from his work he found the petitioner waiting for him. The father-in-law says, towards the close of his testimony, that he stood and talked to the petitioner a few minutes, and having to go back to work he turned around and went in. If the father-in-law wanted to discuss with the petitioner the welfare of the petitioner’s wife, it seems to me that the father-in-law would have stopped more than a few minutes when he found the petitioner waiting to talk with him. I think that the testimony of the petitioner as to what occurred on that occasion is true, and demonstrates his desire to have his wife return to live with him.
    “The subsequent acts of the wife show that it was not her intention to become reconciled with her husband, and that she was not willing to return to him, but that she purposed to rely upon what she conceived to be, or what was advised were, her legal rights, because she commenced two or three different proceedings against her husband. Her desire was to compel her husband, by law, to support her while she remained separated from him, when she now says it was then her wish to return to her husband. She has not shown that she made such wish known to her husband, and her suits for support indicate a contrary frame of mind, and were likety to bring about further estrangement rather than a reconciliation. I think the attitude of the defendant towards the petitioner, subsequent to her leaving the home in which she and the petitioner resided, corroborates the petitioner’s testimony. I will advise a decree in favor of the petitioner and dismissing the cross-petition.”

      Mr. Thomas B. Armstrong, for the appellant.

      Mr. Edward A. Kenney, for the respondent.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Pielder in the court of chancery.

For affirmance — The Chiee-Justice, Teen chard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskiek, Clark, McGlennon, Kays—15.

For reversal—None.


text:
    Lillian M. Summers, appellant, v. Theodore Morley et al., respondents.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 95 N. J..Fcq. 505.

      Mr. Frederick T. Hey, for the appellant.

      Mr. Iloivard F. Kirk, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

For affirmance — The Chiee - Justice, Trenci-iard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—15.

For reversal—None.


text:
    Simon W. Straus, trustee, complainant, v. William B. Loudenslager et al., defendants.
    [Decided June 27th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinions:
    FIRST OPINION.
    “I think it entirely clear that under the averments of complainant’s bill he is entitled to be relieved from the enforcement of the decree heretofore entered against his mortgagor until he shall have had his day in court.
    “It is an established equitable doctrine that ‘a. suit in chancery, .duly prosecuted in good faith, and followed by a decree, is constructive notice to every person who acquires from a defendant pendente lite, an interest in the subject-matter of the litigation, of the legal and equitable rights of the complainant as charged in the bill and established by the decree.’ This rule has been modified by the Lis Pendens act to the extent that constructive notice is imputed only from the time a lis pendens shall have been filed. Haughwoul & Pomeroy v. Murphy, 22 N. J. Eq. 531.

    “But one who has acquired from a, defendant an interest in the subject-matter of the litigation prior to' the litigation, or prior to the time a lis pendens is filed, is not charged with constructive notice and cannot be bound by the decree on any theory of constructive notice. Slack v. John, 63 N. J. Eq. 126.

    “Nor is one who has acquired an interest from a defendant prior to the time referred to regarded as a privy in the sense that privies are bound. In order that such privy shall exist the succession must have occurred after that time. 24 Am. &

      Eng. Encycl. L. [2d ed.] 747. ‘While a mortgagee is privy in estate with a mortgagor as. to actions begun before the mortgage was given [in this state as to. actions begun and lis pendens filed before the mortgage was given], he is not bound by judgments or decrees against the mortgagor in suits begun by third parties subsequent to the execution of the mortgage, unless he or some one authorized to represent him, like the trustee of a mortgage bondholder, is made a party to the litigation, although it would be otherwise if the mortgage were executed pending the suit or after the decree. Keokuk and Western Railroad Co. v. Missouri, 152 U. S. 301, 314.

    “There can be no doubt that a mortgagee whose mortgage has been executed prior to litigation touching the mortgaged premises enjoys such an interest in the property covered by his mortgage as entitles him to be heard touching any matter that may adversely affect the value of his security. 24 Am. & Eng. Encycl. L. (2d ed.) 750. A decree for the enforcement of a restrictive building covenant is obviously of that nature, since it prevents the use of the land for purposes entirely lawful, but for the existence of the restrictive covenant, and thus establishes rights in others in the nature of easements affecting the land.
    “It necessarily follows that the respective covenants here in question cannot be now enforced to the detriment of complainant herein until complainant shall have been heard touching their validity and binding force', unless complainant has in some way denied to himself the right to be heard. If complainant is in no way hound by the decree because not made a party to the litigation, obviously, the decree is a nullity as to him.
    “It has been broadly held in some jurisdictions that any person who is directly interested in a suit and has knowledge of its pendency, and who refuses or peglects to appear and avail himself of his rights, is concluded by the judgment rendered therein. In Den v. Fen, 3 N. J. Law 478, a mortgagee applied and was admitted to defend in an action of ejectment against his mortgagor unless, plaintiff should discharge the mortgage. Whether failure of a mortgagee to intervene and defend, after actual notice, would be operative as a bar to a bill of this nature, need not be1 here considered, since the bill does not disclose such notice. It has also1 been held in equity that one may be bound by a. judgment who has in fact or effect defended, though not a party to the record. Lyon v. Stanford, 42 N. J. Eq. 411- It would also seem that under general equitable doctrines a mortgagee who' has stood by with notice of the suit, and, in effect, speculated on its result before asserting rights, or who has controlled or even contributed to the defense, would properly and justly be denied protection against the decree. But since these facts are not disclosed by the bill, further consideration of their effect need not be here indulged.
    “I will deny the motion of defendant to strike out the bill.”
    SECOND OPINION.
    “The present record, unlike the record heretofore before the court, discloses with clearness and in detail that the removal of the bay windows, not only will be a source of great cost to the owners and loss to the revenue-producing capabilities of the hotel, the latter a matter of direct concern to the bondholders, but also discloses with entire clearness that the removal of the bay windows will not be of the slightest degree of benefit to anyone, and, on the contrary, will be of real detriment to> everyone having any interest in that locality, since it will seriously injure the appearance of the present building by substituting an expanse of flat wall for its present more attractive appearance. The only justification that is now urged by the original complainant for the present enforcement of this devastating decree is a claim to the effect that any failure on his part to continue his efforts to cause the removal of the bay windows may militate against future efforts to enforce the covenants against other possible violations. ,
    “It is also now made apparent that the encroachment to the bay windows over the line which separates the two tracts was purely a blunder or mistake upon the part of someone, whereas at the time the enforcement decree was entered there was strong ground for belief that the encroachment was a deliberate attempt to resist and defy the decree as originally entered. I fully believe the statement now made by Mr. Straus to the effect that he did not know, and does not believe that anyone connected with his organization knew, that the bay windows projected over the line until after the hotel building was under roof; at that time all of the bay windows appear to have been completed except the bricking in or encasing of one window on the fourteenth floor.
    “Had the present record, been before the court at the time the enforcement decree was signed, I think it more than doubtful whether that decree would have been ordered entered.
    “It must be here assumed that the projecting bay windows violate the covenant, which provides that 'private dwellings only shall be built on’ the Hemsley tract, since the bay windows project from and form a. part of the hotel building, although the hotel is wholly built on another tract, except as to the bay windows, which are admittedly suspended above the Hemsley tract. But when the spirit of that covenant is contemplated as one to protect the Hemsley tract from having any buildings erected upon that tract other than private residences, its violation by these overhanging bay windows extending from a hotel erected on another tract seems too inconsequential under the evidence now before the court to justify the hardships that will flow from the enforced removal of the bay windows after their completion, especially when considered in connection with the facts now disclosed, that the encroachment of the bay windows was through a mistake, and that their presence is harmful to no one in the slightest degree. See Hemsley v. Marlborough House Co., 68 N. J. Eq. 596, 601; Sanford v. Kerr, 80 N. N. J. Eq. 240, 248. As to the covenant protecting three feet adjacent to the rear dividing line, the present record discloses so many instances of its non-observance that the right to its enforcement as a part of the original scheme, and especially as to. a completed structure of this nature, may well be said to he not wholly free from doubt. The testimony discloses that there are no buildings at this time on any lots of the EOemsley tract west of Stenton avenue between the bulkhead line of Pacific avenue, but all lots, west of Stenton avenue, between Pacific and Atlantic avenues—eight in number—have been built upon; of these eight buildings five encroach upon the restricted area contrary to the provisions of that covenant. It will be observed that this covenant permits bay windows to extend two feet over the three .feet restricted area. The bay windows here complained of appear to be two feet and ten inches in depth.
    “I am convinced that the execution of the decree known as the enforcement decree, for the removal of the bay windows, should be denied at this time upon the broad ground that it would be inequitable to do so in view of the facts disclosed by the present record, which did not adequately appear at time the enforcement decree was. ordered entered. Upon that ground I think it my duty to advise a decree for relief from the enforcement decree pursuant to the prayer of the present bill.”

      JJr. Norman Grey, for the complainant.

      Messrs. Bourgeois .& Coulomb, for the defendants.
   Per Curiam.

The decree appealed from will he affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Trehohaed, Mjnturh, Kalisch, Black, Katzehbach, Campbell, Lloyd, White, Van Buskirk, McGlenhoh, Kays—12.

For reversal—None.


text:
    The New Jersey Poultry Producers' Association (Cooperative), complainant-appellant, v. Hans Tradelius, impleaded, &c., defendant-respondent.
    [Submitted May term, 1924.
    Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, who. filed the following opinion:
    “The complainant is a corporation of this state, formed under the provisions of fAn act to provide for the formation and regulation of co-operative agricultural, dairy or horticultural associations,' chapter 154, laws of 1920, page 300.
    “The defendant Hans Tradelius was one of the incorporators of the association, and was elected a director thereof, and remained and acted as. such for a considerable period.
    “The bill was discontinued in so far as the defendant Pred Gillis is concerned.
    “Prior to the incorporation of the association, several pub - lie meetings of these interested were held in Vineland and its vicinity, at some of which the defendant was present.
    “One man, at least, who was active in the organization of the association, and at these meetings., was a paid organizer.
    “Prior to the incorporation a form of “membership agreement was prepared, one of which was signed by Tradelius on the 15th day of June> 1921.

      “Inter alia that agreement provided:
    “‘10 (a) Every member shall pay an entrance or organization fee of ten dollars.
    “ TO (b) Every producer shall pay into the working fund of the association ten dollars ($10) for every hundred hens owned by him, based on the capacity in his poultry plant at the time of signature hereto. The producer may pay cash and receive a discount of seven per cent, therefor; or he may pay the same in four equal installments, evidenced by four negotiable promissory notes, bearing interest after maturity only, due three (3), six (6), nine (9) and twelve (12) months after date. The association is authorized to deduct from the proceeds due to the producer one-twelfth (1/12) of the said sum each month after July 1st, 1921, and to apply such deductions toward the payment of each note 'when due.
    “ ‘The said working fund, created by this and other deductions, shall be construed as an advance made by the producers to the association, which association shall have the right to use for its proper purposes and to apply on any of its indebtedness, and the net balance of such fund, with all accumulations, shall be distributable to the producers, proportionately, on the -basis of its cash value, after July 1st, 1924, on such terms and conditions as the association may deem fair and proper.
    “ ‘Each producer shall -be credited with his proportionate share therein and shall receive six per cent, interest upon such share, payable annually. A withdrawing producer shall not receive any interest after notice of -withdrawal but -his share in the fund shall be distributed to him within sixty days after notice of withdrawal, in cash, or at the option of the association, in notes, payable without interest not more than two years thereafter.
    “ ‘The association shall confine itself to the problems and marketing of eg-g-s only, and for its members only. It shall have suitable articles of incorporation and by-laws stating the purposes and powers of the association ; the rights and duties of members ; manner of forfeiture of membership; value of property interest on withdrawal, and any other necessary pertinent and important points of organization, as determined by the organization committee.
    “ ‘The association shall be organized -by an organization committee, consisting of a chairman, two vice-chairmen, a secretary, treasurer, and forty-two additional members; elect new members in place of any who mlay resign or be unable to act; appoint an executive committee of five to conduct its detailed affairs; open headquarters; incur necessary obligations and make necessary expenditures, . and take such steps as it may deem advisable to secure subscriber® for this agreement and members of the association. The secretary-treasurer shall be adequately bonded.
    “ ‘If the signature of the owners of 150,000 ¡hens shall be secured by.the said date [July 1st, 1921], this agreement shall be binding upon all oil the subscribers in all of its terms, and there shall be no right of withdrawal whatsover.
    “ ‘The subscriber agrees (1) to execute, when requested by the association, a marketing agreement in terms substantially the same as those set forth in the agreement -herewith embodied, or (2) at the option of the board of directors, to be bound by the terms of the following marketing agreement.
    “ ‘For -such purpose, signature to this association contract shall be deemed to all effects the same as signature to the said marketing agreement, and as acceptance of the exercise of such option by the board of directors. Notice thereof shall be mailed to each subscriber at his address noted below.
    “ ‘The producer is a member of the association and is helping- to carry out the express aims of the association for co-operative marketing, for minimizing speculation and waste and stabilizing egg markets in the interest of the producer and the public, through this and similar obligations undertaken by the other producers.
    “ ‘The association agrees to market and the producer agrees to consign and deliver to or upon the order of the association, daily or semiweekly, to such point as may be designated by the association, all the eggs produced for hi-mi in New Jersey, during the years 1921, 1922 or 1923, and until .July 1st, 1924, that he intends to sell or market, or consign or deliver, directly or indirectly, for sale or marketing, or consignment, to any person, firm of corporation whatsoever. The producer shall have the right to use or sell eggs for hatching or for immediate neighborhood consumption.
    “ ‘The association shall market only the eggs of its -members and nothing else, and it shall handle all such eggs from its members only upon the basis set forth herein.
    “ ‘The producer hereby -constitutes and designates the association his lawful and duly appointed agent coupling such agency with a direct financial interest as the common agent of producers signing similar agreements, to sell all of such eggs for the producer and as his exclusive agent; and, as such agent, the association shall .have full power and authority in its own name or in the name of the producer, as it may elect, to transact such business -and take such action as it may deem necessary, incidental or convenient for the -accomplishment of any of the purposes herein set forth This agency shall be irrevocable during the term hereof.
    “ ‘The producer expressly warrants that he has not heretofore contracted to sell, market, -con-sign or deliver any of his said eggs to any person, firm or corporation, except as noted at the end of this agreement. Any eggs covered by such existing contract shall be excluded from the terms hereof for the -period and to the extent noted.
    “ ‘The association shall pool or mingle the eggs of the producer with eggs of a like grade and quality delivered in the same week by other producers. The association shall grade and classify the eggs and its grading shall be -conclusive.
    “ ‘The association shall be the sole judge of the standard, quality and grade of the eggs, and shall adopt such method of standardization as will be the most advantageous in general.
    “ ‘The association may make rules and regulations, and provide inspectors to standardize the quality, method and manner of handling, packing and shipping of eggs for any purpose, and the producer agrees to observe and perform any such rules and regulations prescribed by the association.
    “ ‘Any deduction or allowance or loss or expense that the association, in its discretion, may make or suffer or incur on account of eggs of inferior quality or standard or undesirable conditions as determined by the association, shall be charged against the producer and bo deducted from his net returns hereunder.
    “ ‘The producer expressly agrees that all eggs delivered hereunder shall be free from damage of any kind, and in good marketable and merchantable condition, and shall be delivered to the association as, when and where it shall direct.
    “ ‘The association agrees to resell such eggs, together with eggs of like grade and quality delivered by other producers under similar contracts at the best prices obtainable by it under market conditions, and to pay over the net amount received therefrom [less freight, insurance and interest! as payment in full to the producers named in contracts similar hereto, according to the egg® delivered by each of fhem, after deducting therefrom, within the discretion of the association, the costs of maintaining the association, and of handling, grading and marketing such eggs, and of reserves for credits and other commercial purpose. Said costs and reserves must not exceed two cents per dozen on all eggs handled by the association. Any surplus from such deductions must be prorated among the producers delivering eggs in that year on the basis of deliveries.
    “ ‘In addition to the said deduction, the producer agrees that the association shall deduct from his proportionate .net returns hereunder one-half cent [%c.l per dozen of eggs, to be placed in the working fund. The producer shall receive credit for such deductions, but shall not be entitled to withdraw any portion thereof unless and until the association so directs at the expiration of this agreement. The said working fund shall stand as an asset of the association, and shall be responsible for any indebtedness thereof; apd the interest of the producer therein shall be a proportionate property interest, after payment of any and all indebtedness of the association, distributable only after July 1st, 1924, and upon such universal terms as the association may adjudge proper, prorated on the basis of the then actual value thereof.
    “ ‘The producer agrees that the association may handle, in its discretion, some of the eggs in one way and some in another; may sell some upon delivery, may store or process all or any portion thereof; but the net proceeds of all eggs of like quality and grade, less charges, costs and advances, shall ¡be divided ratably among the producers in proportion to'their deliveries to each pool.
    “ ‘The amount to be paid to the producer weekly shall be based on the proportional yalue in eggs delivered by him to the association, out of the total receipts of m'oneys from the sale or other disposition of the eggs and loan value of unsold eggs, according to quality and grade, less the deductions hereinabove mentioned, all as determined by the association.
    ‘The association shall, in its discretion, store or warehouse eggs to be held for the season of minimum production or for a better market or otherwise. Any eggs so stored or warehoused shall be deemed to have been stored at the current loan value on the dates of storage as conclusively determined by the association, and shall be distributed as part of the weekly receipts as above provided.

      “ ‘Any net profits, after paying all warehousing charges, interest, taxes, insurance and other ¡costs, resulting from the ultimate resale of such eggs by the association, shall be divided proportionately, on the basis of the value of the respective deliveries, among the producers delivering egg® to the association during the period in which such eggs are stored, all as determined conclusively by the association.
    “ ‘Any losses, after paying all warehousing charges, interest, taxes, insurance and other costs, resulting from the ultimate resale of such eggs by the association shall be chargeable against and be paid by the producers proportionately on the value of the respective deliveries of the producers delivering eggs to the association during the period in which such eggs are stored, all a® determined conclusively by the association.
    “ ‘The association may. in its discretion, sell or consign any of the eggs to hotels, restaurants, retail stores or other large users of eggs, and the costs of any such -business, as determined conclusively by the association, shall be charged against the proceeds therefrom in addition to the deductions provided in paragraph 7 hereof, before the receipts are mingled with the total weekly receipts for distribution among the producers hereunder.
    “ ‘The producer agrees that the association may handle and market the eggs, some in one way and some in another, all in its sole and exclusive discretion.
    “ ‘The producer agrees to supply or provide his own crates or cases and fillers, as approved ;by the association.
    “ ‘The producer further agrees that the association shall have the power, without limitations, to borrow money in its name and on its own account on the eggs delivered to it, or on any accounts for the sale thereof, or any drafts, bills of lading, exchange, notes, acceptances, orders, or any commercial paper delivered therefor, and to exercise all rights of ownership without limitations, and to pledge, in its own account, drafts, bills of lading, bills of exchange, notes, acceptances, orders or other commercial paper as collateral therefor. The association may prorate the money so received to the producers, or, in its absolute» discretion, use the same for any legal purpose or activity of the association, or distribute the same equitably among the producers on the basis of deliveries.
    “ ‘The association majr establish selling offices, warehouses, plants, marketing, statistical or other agencies in any place.
    “ ‘The producer shall have the right to stopi producing eggs and to grow anything else at any -time at his free discretion; but if he produces any eggs, or acquires or owns any interest in any eggs, during the term hereof, they shall - all -be included under the terms of this agreement, and must be sold only to the association.
    “ ‘This agreement shall be binding upon the producer during the term hereof as long as he is a poultry producer or possesses any legal interest in poultry or poultry products, and he shall be obligated by all the terms hereof for any eggs produced- or acquired by or for him.

      ‘This agreement is one of a series generally similar in terms comprising 'with all such agreements, signed by individual producers, or otherwise, one single contract between the association and the said producers annually and individually obligated under all the terms thereof. The association shall be deemed to be acting in its own name for all such producers in any action or legal proceedings on or arising out of this contract.
    “ ‘The producer agrees that in the event of a breach by 'him of aiiy material ¡provision hereof, particularly as to delivery or marketing of any eggs other than to or through the association, the asspciation shall, upon proper action instituted by it, be entitled to an injunction to prevent fiirther breach hereof and a decree for specific performance hereof, according to the terms of this agreement; and the association and the producer expressly agree that this agreement is not a contract for personal service or demanding exceptional capacity and talents, and that this is a contract for the purchase and sale of personal property under special conditions and circumstances, and that the association limits its purchases of eggs to producers co-opierating with it under this form of contract, and cannot go out into the open markets and buy eggs to replace any which the producer may fail to deliver, and that this contract will be the proper subject for the remedy of specific performance in the event of a breach thereof.
    “ 'It is expressly agreed that this instrument is one of a series substantially identical in terms. All such instruments shall be deemed one contract for the purpose of binding the subscribers to the same extent as if all of the subscribers had signed one such contract.’
    “The certificate oí incorporation is elated August 9th, 1921, acknowledged the same day and recorded in the clerk’s office of Mercer county, and filed in the office of the secretary of state on August 12th, 1921.
    “The defendant Tradelius, as one- of the incorporators, signed and acknowledged the certificate, and his name and post-office address is included in the list of subscribers to said certificate.
    “Among the provisions in said certificate are:
    “ ‘II. The class of services to be performed by the association shall ico-mipriee all and any services, of any kind whatsoever, connected with the preservation, drying, canning, storing, handling, utilization, marketing and sale of eggs, poultry, and egg and poultry products produced by the members of such association.
    “ ‘III. The territory in which the association’s operations are to be conducted is the State of New Jersey, the several states and territories of the United States of America, the colonial possessions or territorial acquisitions of the United States of America, and such foreign countries as shall from time to time be found convenient for the purposes of the association’s business.’

      “In clause VII Hans Tradelius is named as a director for the first year.
    ‘VIII. The date of the commencement of its business or fiscal year is the S)th day of August, for the year 1921, and thereafter, .the 1st day of January in each year.
    “ TX. The following provisions are hereby adopted governing the regulation and conduct of the association’s affairs, namely—
    “‘‘(a) The limit of amount of indebtedness or obligation of the association for which the individual members or directors shall individually, jointly or severally'be liable, is the sum of $10 for each such member and director, provided, however, that such limitation shall not apply to debts due to laborers, servants and employes of the association.
    “‘(h) The board of directors of the. association shall, when so provided by the by-law®, have power to appoint an executive committee of such number of its members as the by-laws shall from time to time prescribe, which executive committee shall have and exercise all the powers of the board of directors which may be lawfully delegated in the management of the business and affairs of the association, subject to the by-laws, and shall have power to authorize the seal of the association to be affixed to all papers which may require it.’
    “On August 12th, in pursuance of waiver and consent, all of the incorporators and members were present at a meeting held for organization, and unanimously consented to adopt and approve the by-laws, and a form of standard marketing agreement contained therein was adopted to he effective until July 1st, 1924, and also adopted the following resolutions :
    “ ‘Resolved. That the members of the New Jersey Poultry Producers’ Association I Co-operativeJ, do hereby approve, ratify and confirm the selection of the directors named in the certificate of incorporation of the association, as and for the board of directors of the association for the ensuing year.’
    “The following preamble and resolutions were unanimously adopted:
    “ ‘Whereas. The members and incorporators of this association are desirous of assenting to the acceptance of said membership agreement a® the obligation of this association, and of admitting the signatories to said membership agreement into full membership and participation in the affairs of the association ;

      Therefore, he it resolved, Tlia't the board of directors of this association, as constituted by the certificate of incorporation thereof, be and the same is hereby authorized and directed to adopt the form of membership agreement prepared by tile organization committee of this association, so far as the same is not inconsistent with law .and with the by-laws of this association; as the obligation and contract of this association; to elect all signatories to said membership agreement to membership in the association in the manner prescribed by the by-laws thereof; to cause each such member to receive credit in full, on the books of the association for such sums as such member shall have paid to the organization committee, as though such sums had been paid by such member to the association; to alceept the balance of funds in the hands of the organization committee as the funds of the association, and1 to cause all items of disbursements made by tlie organization committee out of the funds received by it, to be charged to the organization expenses of this association.’
    “At one-thirty o’clock in the afternoon of said August 12th, 1921, pursuant to waiver and notice signed by each of the members of the board [all of whom were present in person], the directors met and elected officers. The board also ratified, approved and accepted the report of the organization committee.
    “The following resolution was unanimously adopted:
    “ ‘Resolved, That the form of membership agreement prepared by the organization committee of this association, be and the sáme is hereby adopted as the obligation and contract of this association so far as the same is not inconsistent with the law of New Jersey, the certificate of incorporation of the association and the by-laws of the association, and the terms thereof shall be binding upon the association as a contractual obligation to and with each signatory thereof; and
    “ ‘Further resolved. That each of the following signatories to such membership agreement be and the same is hereby elected a member of the association, namely :’
    riiere follows a long list of names and addresses, included in which is Tradelius H. Vineland, N. J.]
    “ ‘Fwth-er resolved, That the treasurer of the association be and lie hereby is authorized and directed to give credit to each of the members of the association, on the books of the company, for the full sum paid by such member to the organization committee, both by way of entrance fee and by way of initial payment to the ‘working-fund, notwithstanding the fact that the organization purposes and to charge all expenditures made by the organization committee, prior to the organization of this association, to organization expense.’

      “The standard marketing agreement appearing in the by-laws of the association was adopted as the form to be used until July 1st, 1924.
    “On August 19th, 1921, a meeting of the board of directors, Tradelius being present, the, following was adopted:
    “ ‘Market provisions of the New Jersey Poultry Producers’ Association [Go-operative].’
    “The following provisions of marketing the eggs was unanimously adopted by the board of directors:
    “ ‘First. W. H. Mapes Company offer a portion of their quarters at 137 Reade street, rent free, as the association New York headquarters.
    “ ‘Second. All eggs marketed by the association shall be distributed through the New Jersey Poultry Producers’ Association [Co-operative], offices on 137 Reade street, New York City, of which the W. H. Mapes Company are selling agents.
    “ ‘Tim'd. The term wholesale to mean eggs sold to other wholesalers, jobbers or retailers that apply to the distributing agency, bargain and pay for same as all other eggs are sold at wholesale.
    “ ‘Fourth. Any eggs sold in less than five cage lots will be termed retail.
    “ ‘Filth. Any eggs sold by the W. H. Mapes Company to retailers through their salesmen, and delivered by their trucks in the same manner as their regular jobbing business is conducted, .shall be returned for the average price obtained at wholesale for the balance of the same shipment.

      “ ‘Sixth. H. Mapes Companj' to return to the association, weekly, the exact amount obtained for all the eggs sold at Wholesale [less the following deductions].
    “ ‘A. The salary, of approximately $30 per week, of one employe or representative of the association whose duty shall be to assist in the unloading, marketing and loading after sale, keeping records of sale, accounts, &c., in the interests of the association.
    “ ‘B. If, after the expiration of three months, the executive committee of the association makes a permanent agreement with the W. H. Mapes Company for the distribution of their eggs at a fixed brokerage, commission price or otherwise, that .brokerage commission or price shall be retroactive and include the eggs handled during the previous three months.
    “ ‘Seventh. The W. H. Mapes Company to give a satisfactory bond of $25,000 to guarantee all payments to the association.

      “Eighth. In the event of the association establishing a grading station at the New York headquarters, we will furnish quarters for said grading and any expense for operating said department to be borne by the association, said association employe to manage and keep records of any expense that shall be borne by the association.

      “Ninth. That the W. H. Mapes Company shall handle or sell no other eggs that would interfere with the interests of the association eggs. This to be determined by the 'W. I-I. Mapes Company and the association manager.
    “ ‘This agreement to the effective on the date of first shipment of eggs by the association.’
    “At a meeting of the directors held November 8th, 1921 [Tradelius being present], the following- report of committee was presented, and the following motion unanimously adopted:
    “ ‘Mr. Ells reported for the subcommittee of the executive committee to make arranugemients with Mr. Mapes for the sale of association eggs. He said that Mr. Mapes had offered to handle the association eggs on a basis of 3 per cent., or 1% cents a dozen for all eggs sold in New York City, and 1 cent a dozen for all those sold outside of Newi York. Mir. Mapes stated that so far as he was concerned he felt that they could make better arrangements at any time during the year they should be flee to accept, and that so far as he was concerned lie would be willing to handle the eggs without a contract. Motion was made that the association accept Mr. Mapes’ offer of 1% cents :pier dozen for those outside of New York. Motion lost.
    “ ‘Motion was made that the association offer Mr. Mapes 1% cents per dozen for all eggs sold in New York, and % cent for all sales on the outside. Carried unanimously. President Whetsel and Mr. Ells were requested to inform Mr. Mapes of the association’s action, and obtained his answer. President Whetsel reported as follows: Mr. Mapes had offered the services of the W. PI. Mapes Company to handle all eggs sold by the association whether they came to New York or were sold outside of New York for the first eight calendar months of the year at 1 cent per dozen; for the last four calendar months of the year the rate shall be 1% cents for all eggs sold in New York and 1 cent a dozen for those sold outside of New York.
    “Moved and seconded that the offer of Mr. Mapes, as reported by President Whetsel, should be accepted. Carried unanimously. The secretary was requested to draw up an agreement with Mr. Mapes.’
    “At a special meeting held on April 8th, 1922, an election was held for the purpose of electing seven members of the board of directors to- fill vacancies caused by the resignation of the following directors from district No. 1: James Whetsel, Elmere Wene, B. S. Ells, John H. Weed, H. Tradelius, Fred G-illis, A. E. Spear.

      “One of the most important arguments used in the securing of the membership agreement was that the corporation could for the members save the expense of a broker or middle man. The agreement provided that the association must not deduct more than, two cents per dozen for expenses of operating the association, any amount remaining nnused of that sum to he returned to the producer. An additional one-half cent per dozen could be deducted for the working fund, but producers to he given credit therefor. It was provided further in said agreement that the association may, in its clisoration, sell to hotels, &c.
    “The minutes of the board of directors of February 14th, 1922, are very illuminating as to complaints of members:
    “ ‘We, the members of the New Jersey Poultry Producers’ Association of the third district, feeling that the association is not accomplishing the aims for which it was organized, offer the following criticisms and recommendations to the board of directors of the association, feeling that these criticisms and recommendations will he received in the same spirit in which they are offered
    “ ‘Briticisms—We believe the payment to Mr. Mapes of from $15,000 to $25,000 per year to sell our eggs to the same trade we formerly sold to direct before the association was formed is an unnecessary expenditure.
    “ ‘Wie do not believe Mr. Mapes should receive a commission for all eggs sold, regardless of whether eggs are sold by him or by the association direct.
    “ ‘We believe that the salary of $4,800 per year paid to our general manager is exorbitant when considering his present duties.
    “ ‘We feel that the total expenses to the association of from $20,000 to $30,000 per year for salaries and commissions, plus expenses for candling, grading and packing the egg's, &e.. is greater than necessary.
    “ ‘We feel that no financial benefits come to the individual members of the association through the expenditure of this large sum of money.
    “ ‘We feel that the eggs are not being graded uniformly, which causes direct loss to the individual members, and makes it impossible to make a reputation for the association’s eggs.
    “ ‘We feel that directors did not have the authority to order that candling be discontinued, as this is contrary to our by-laws. Paragraph No. 5, marketing agreement, specifically states: “The association shall pool the eggs of the producer with eggs of like grade and quality.” Htow is the quality of an egg determined except by candling?

      “ ‘And we further feel that the association as now conducted offers no inducements, from a financial standpoint, for poultrymen to become members of the association and to the members already in the association to continue to sell their eggs through it.
    “ ‘Recommendations—We recommend that all eggs be carefully candled and correctly graded, and graded, if possible, by mechanical moans to insure uniform grading at all packing houses.
    “ ‘We recommend that all eggs be stamped with our trade-mark to identify them to consumers, as this will enable the association to create a real reputation for its product.
    “ ‘We recommend that the association hire a competent sales manager, who shall be solely in the employ of the association. One who has the ability and knowledge to sell to retail dealers. His salary to be, in part, on a commission basis in order to give ¡him an incentive to sell our eggs at the best price obtainable under existing marketing conditions. It might also be possible for the sales manager to have supervision over packing houses and the Trenton office.
    “ ‘We recommend that a sales office in Hew York City be opened by a sales manager for the distribution of our eggs to the retail trade.
    “We recommend that in seasons of over-production the association’s eggs be stored in bonded cold storage warehouses in order to stabilize the market.
    “We recommend that the total selling and grading costs be not over two cents per dozen, and we further recommend that an additional one cent per dozen be deducted. This money to be used solely for “direct to consumer” advertising, in order to stimulate the sale of the association’s eggs. This would make a total of three ceiits per dozen deducted for selling, grading, packing and advertising costs, but does not include cost of cases and transportation.’
    “It is proven and not disputed that Tradelius did not comply with the terms of the agreement signed by him, but from December 13th, 1921, did dispose of his. output of eggs to others than the complainant company.
    “The complainant prayed for a, preliminary injunction against the defendant, which was denied.
    “Tradelius’ successor as director was elected on April 8th, 1922, although his resignation was tenderá some tima prior thereto, and the last meeting of the directors at which he was present appears to he November 8th, 1921.
    “The relief now prayed for is a decree for discovery and an accounting for the liquidated damages provided for in subdivision (c) of paragraph 18 of the agreement, which is as follows:

      “ ‘Inasmuch as it is now and ever will be impracticable and extremely difficult to determine the actual damage resulting to the association should the producer fail to deliver to the association all of the eggs herein agreed to be delivered, the producer hereby agrees to pay to the association seven cents for each dozen eggs sold, consigned, delivered or marketed by or for him in violation of this agreement, as liquidated damages for the breach of this contract in that regard, all parties agreeing that this contract is one of a series dependent for its true value upon the adherence of each and all of the contracting parties to each and all of the said contracts.’
    “The answer filed sets np the following defenses:
    “1. That the contract, which the complainant is seeking the specific performance of, was procured by misrepresentations and fraud.
    “2. That complainant made breaches.
    “3. That the contract is in restraint of trade.
    “4. That the contract is hard and oppressive and destitute of all equity.
    “5. That the contract lacks the mutuality of obligation as well as the mutuality of remedy, and is therefore unenforceable.
    “If the second point is found in favor of the defendant, it is unnecessary to consider any of the other points, raised.
    “An examination of the evidence is necessary to determine the question.
    “Did the complainant make such breach of ihe contract-on its part as to release the defendant from the obligation of it r
    “The evidence is convincing that the company did retain mote than two cents per dozen for expenses of operating the association.
    “Sales were made through a sales agent or broker at great expense.
    “The complainant contends that it is and was authorized to do so, and to pay for same, by subdivision (c) of section 8 of tlie marketing agreement-.
    “It is evident that this clause does not empower the sale to a broker, or the employment of a broker or middleman .[as such agent was called]. The association recognized this .statement, as since this suit was instituted this clause has been amended to include ‘dealers/
    “The explanation of this section is—-that hotels, restaurants and large users of eggs might be induced to- pay a premium for a higher class of goods than is usually found on the market, and that any additional expense in making such sales would bo more than offset by the premiums received.
    “With this explanation in mind, a sale to a broker at regular rates certainty could not be included in the terms of this section, even if its language was not clear, as it is.
    “This association was to grade and classify the eggs This was not properly done. It was admitted that grading was too severe in 1921.' It ceased candling the eggs, and sometimes candled only samples.
    “It was also conclusively shown that the defendant received for his eggs an amount very much less than he would have received had he made sales in the general market.
    “An examination of the returns made by the association to Tradelius shows payments by it in some instances of as high as seventeen cents per dozen less than the market quotations.
    “Financially, the association was in a precarious condition, and it was conducted in an unbusinesslike manner. Bach monthly report of the financial condition, made from October, 1921, to May, 1922, showed checks drawn in excess -of cash balances of from $870.77 to $11,136.63..
    “The report for September 10th, 1921, to. November 30th, 1921, showed a net loss in the Yineland district of $4,347.75, and a total net loss of the association of $4,996.83.
    “The report of the advisory committee of the Toms Bive-r Local, No. 3, made at the request of the president of the association at a meeting of the board of directors held February 14th, 1922, while not evidential of the facts contained therein, is very illuminating as to the condition and conduct of the business of the association as recited above.
    “It will also be noticed that organization expenses were $8,574.92, as per the report in the minutes of the executive committee meeting of December 16th, 1921. While as per the same report, the amount paid in for membership fees amounted to $4,440.
    “Without now further restating the testimony, I am satisfied that the complainant is not now in a position to obtain equitable relief against the defendant, unless he [the defendant] is estopped from setting up a claim that the contract has been rescinded or waived by his acquiescence or laches.
    “While it is true that Tradelius was a director of the association and participated in manjr of the meetings of the directors, particularly in the contract with Mapes, concerning which he cannot be heard to complain, I am convinced that otherwise he is not barred from setting up the defenses claimed by him, and that the bill must be dismissed.”

      Mr. Loiús II. Miller and Mr. George L. Record, for the appellant.

      Mr. Thomas G. Tuso and Mr. John W. Wescoti, for the respondent.
   Per Curiam.

The facts in this case, which arc voluminous, are quite fully and accurately set out in the conclusion filed by the learned vice-chancellor, who heard the case. Our examination of the record and a consideration of the facts lead us to the same conclusion as that of the vice-chancellor, viz., the complainant’s bill of complaint should be dismissed. The decree of the court of chancery is therefore affirmed and the bill of complaint dismissed.

For affirmance—The Chief-Justice, Tgbnchard, Parker, Minturn, Kaltsch, Black, Katzenbach, Campbell, Lloyd, White Gardner, Yah Buskiric, Clark, McGlemnon, Kays—15.

For reversal—None.


text:
    Anson B. Moran, appellant. v. United States Cast Iron Pipe and Foundry Company, respondent.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 95 N. J. Eq. S89.

      Messrs. Pitney, Hardin & Slcinner, for the appellant.

      'Messrs. Lindabury, Eepue & Paulks, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

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

For reversal—None.


text:
    Margaret Moran, guardian, &c., appellant-respondent, v. Mamie Kelley, administratrix, &c., appellant-respondent.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis-, whose opinion is reported in 05-N. J. Eg. 880.

      Messrs. Drewen & Perkins, for the appellant.

      Mr. John Wahl Queen, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons-stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance — The Chiee-Justice, Trenchard,. Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd; White, Gardner, Van Buskirk, Clark,. McGlbnnon, Kays—15.

For reversal—None.


text:
    Sadie O’R. McKenna, appellant, v. Harrington Company, respondent.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Pield.er, whoi filed the following opinion:
    “Without attempting to discuss the evidence presented by the respective parties to establish whether complainant’s place of residence was in this state, at Long Branch, or out of the state, at New York City, I shall say that I find she was a resident of Long Branch before, during and after the month of July, 1918. Comp. Slal. p. 5137 ¶ 59, under which defendant attempted to make legal service on complainant of notice to redeem, for the purpose of cutting off her equity of redemption in the premises sold to defendant under tax sale, provides that the notice shall be served personally upon persons interested who reside in the taxing district, and, personally, or by mailing to their post-office address, upon those who reside out of the district. Because complainant resided in the taxing district, it was necessary for defendant to make service on complainant personally, either within or without the taxing district, and the ques tion for determination is: Was such personal service made?
    “The court of errors and appeals in Wilson v. Trenton, 53 N. J. Law 61/.5, said, concerning personal service, as distinguished from official or judicial service; such as service of a summons in an action at law and from substituted or constructive service, such as publication or posting, that personal service need not be made by an official, or in a particular mode; if the required notice be conveyed to the person to be affected thereby, it is sufficient, and that evideuce of actual delivery to the party in person is conclusive proof of service.
    “The complainant, in Juty, 1918, had a home in New York City, which she occupied during the greater’ part of the year. The uncontradicted proof on the part of the defendant is that on July 19th, 1918, a notice to redeem in due form, enclosed in an envelope, properly addressed to complainant at her New York City home, was registered by defendant’s secretary at the Jersey City post office, for which registered letter such secretary received a receipt from the Jersey City postal authorities, bearing a registered letter number. Complainant, on her direct examination, made positive denial that she had received such notice to redeem by registered letter or otherwise. She admitted often receiving registered letters, and could recall no such letter she had not opened. On cross-examination she was show?: a registry receipt in the usual form taken by the postal authorities upon delivery of a registered letter to the addressee, bearing a New York City postmark, dated July 20th, 1918, which receipt bears the same registry number as the registry receipt delivered to defendant by the Jersey City post office, and shows the defendant to be the sender of the letter receipted for, and which receipt is signed “S. McKenna,” and complainant identified such signature as her own handwriting. Upon being questioned by her counsel on redirect examination as to whether, having admitted her signature on the registry receipt, she had received a notice to redeem from defendant by mail, she replied, ‘Well, I do not remember having received any. I could not really tell yon. I do not remember receiving anything.’ Upon this evidence it seems clear that defendant’s notice to redeem was delivered to* complainant in person on or about July 20th, 1918, and upon the authority of Wilson v. Trenton, such service was personal service within the meaning of the statute. Because of her failure to redeem within the time limited by the statute, her equity of redemption in the premises in question was effectually cut off, and she is not entitled to the relief prayed for in her bill of complaint.”

      Messrs. Drewen & Perkins, for the appellant.

      Mr. Harry B. Brockhursl, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons •stated in the opinion filed in the court below by Vice-Chan•cellor Fielder.

For affirmance—The Chiee-Justice, Trenchard, Parker, Minturn, Kalisoh, Black, Katzenbaoh, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kay'S—15.

For reversal—Hone.


text:
    Irving Iron Works, complainant-respondent, v. Kerlow Steel Flooring Company, Herbert H. Bunker and Walter H. Lown, defendants-appellants.
    [Submitted June 9th, 1924.
    Decided October 20th, 1924.]
    1. Equity has jurisdiction to give relief as against a trustee ex maleficie although the granting of a patent be incidentally involved.
    2. Where the subject of the' patent was complainant’s invention, patented in fraud of complainant, equity may direct an accounting.
    3. Certain injunctive features of the decree below, relating to enticement and employment by defendant of complainant’s servants, modified.
    On appeal from' a decree advised by Vice-Chancellor Foster, of which the following is a copy:

      “This cause having come on for final hearing, and the court having considered the proofs and the arguments of counsel, and being satisfied that the defendants and each of them have conspired through illegal and improper means to injure the complainant and its business, and that they have, by the use of confidential information gained by some of them and their employes and agents, while in the employ of the complainant, engaged in a course of illegal and unfair competition - as against the complainant, and that the type of grating manufactured by the defendant Kerlow Steel Elooring Company (such grating being of the design designated by the complainant in its business as type M) is the invention and property of the complainant, and the court being satisfied that the complainant is entitled to the relief prayed for in its bill of complaint, and counsel having been heard further as to the terms of this decree.
    “It is accordingly, on this 16th day of April, 1924, on motion of Haines & Chanalis, solicitors of the complainant, ordered, adjudged and decreed that the defendants and each of them, and their and each of their agents and employes, be and they are enjoined and restrained from disclosing, publishing or making use of any lists or confidential information of the complainant, obtained by them or any of them while in the employ of the complainant, or from the records, the agents or former employes of the complainant company, and from soliciting for business, either directly or indirectly, from any customer or prospective customer on the lists of records of the complainant company on the 15th day of November, 1921.
    “And it is further ordered, adjudged and decreed, that the defendants and each of them, and their and each of their agents and employes, be and they are enjoined and restrained from doing business with any customer or prospective customer on the lists or records of the complainant company on the 15th day of November, 1921, unless such business comes to said defendants as a result of a 'request for bids for the doing of the same, made by said customers or prospective customers, without previous solicitation on the part of said defendants.

      "And it is further ordered, adjudged and decreed that the defendants be and they are enjoined and restrained from employing, or continuing to employ in their service, either directly or indirectly, any agent or employe other than said Bunker and Lown, who left the employ of the complainant and entered into the employ of the said Kerlow Steel Flooring Company, and they are further enjoined and restrained from enticing or endeavoring to entice any present employe or agent of the complainant to leave its employ.
    "And it is further ordered that the said defendants and each of them, and their and each of their agents and employes, be and they are enjoined and restrained from the further manufacture or sale of the type of grating manufactured by them and hereinabove referred to, provided, however, that the said defendants may, in lieu of desisting from the further manufacture and sale of said type of grating, continue, until the further order of this court, to manufacture and sell the same upon condition, however, that the said defendants shall keep full and complete records of all profits made by them, or any of them, from such manufacture and sale, to the end that they may account to the complainant for the same, as and when this court may direct.
    "And said defendants furthermore render to the complainant full and complete reports as to the amount of grating so sold, to whom sold and at what prices, the expenses incident to the manufacture and sale thereof, and the profits realized therefrom, such reports to be rendered at the expiration of each two months after the date of this decree.
    "And it is further ordered, adjudged and decreed that the defendants and each of them do account to the complainant for all profits made by them or any one of them up to the date of this decree, though the use by said defendants of the said type M grating, as well as for all profits made by the defendants, pr any of them, for any former customer or for any prospective customer of the complainant as of the 15th day of November, 1921, and that it be referred to Charles M. Myers, Esq., to state and audit the amount of such profits and report thereon to this court.

      “And it is further ordered, adjudged and decreed that the defendants, their agents and employes, and each of them, are enjoined and restrained from making any representations as to the business of the complainant company, or its product, tending to depreciate the same.
    ' “And it is further ordered that the defendant do pay to the complainant, its costs of this suit to be taxed, including therein the sum of $500 expended by the complainant for its share Of the cost of the transcript of the testimony taken in the cause, as well as a counsel fee‘of $5,000 to the counsel of the complainant, said items to be included in the taxed bill of costs and collected with the other items thereof, according to law and the practice of this court.
    “And it is further ordered that all further equities be reserved until the coming in of said master’s report.
    “And it is further ordered that the parties to this cause shall have leave to apply to this court, after due notice, for such modification as they may be advised, of that portion of the restraint contained in this decree as relates to the further manufacture and sale by the defendants of the type of grating manufactured by them, in the event of a decision and judgment being entered in the proceedings now pending between said parties with respect to the patent rights relating to said type of grating. And for such other relief as the circumstances of the parties may require.”

      Hr. John Milton, for the appellants.

      Mr. Michael N. Glutnalis and Mr. Arthu-r F. Fgnen, for the respondent.
   Per Curiam.

In the general finding of facts by the learned vice chancellor we fully concur. Indeed, the correctness of that finding is not definitely drawn into question on this appeal, except in one particular, viz., the finding “as a fact that the type ‘M’ grating was designed for and is the property of the complainant.” (We quote the language of the brief.) As. to this, our examination, of the case satisfies us that the court below property found that the design in question was originally conceived and executed for the complainant corporation by its own agents, was its private property and retained as such, came to the knowledge of defendants Bunker and Lown through their confidential relations with complainant, and was filched by them for the purposes of competitive exploitation. The vice-chancellor property held that this was a proper subject of injunctive relief.

It is argued, however, that the defendants, before bill filed, had applied for a patent on this design, and that pending the litigation this patent had been granted; and that these facts turn the controversy into a patent litigation, cognizable only in the federal courts. Uo such issue appears" to have been raised on the pleadings, and we agree with the vice-chancellor in holding it irrelevant to the theory of the bill. That theory we understand to be, in substance, that the defendants, through their confidential relations with complainant, secured a design, its private property withheld presently from the public, and have undertaken to patent it as their own; that in so doing they are trustees ex maleficio, and, as such, accountable for illicit profits, and to be restrained by injunction from further use of complainant’s property. Uo patent rights as such are here involved. What is involved is a trust arising by operation of law.

We think, however, that the appellants are right in claiming that the injunction is in some respects broader than' is warranted. Eor example, it forbids “doing business with any customer or prospective customer,” &c./ of complainant. This is doubtless intended to be confined to business connected with the subject-matter of the suit, but is broad enough to include any business of whatever nature. A suitable modification should be made.

Tlie restraint on employing or continuing to employ any agent or emploj'e who left the employ of complainant, we'think cannot be supported in its full scope. There seems" to be nothing illegal or inequitable in giving employment to any former employe of complainant who left its service voluntarily and not as a result of enticement by the defendants. And even as to those that were enticed, and were at the time of the decree in the employ' of the defendant company, it is difficult to see how complainant will be benefited by a requirement that they be discharged, especially as they are not parties to the suit. We think this part of the injunction should be restricted to an inhibition on enticing any present emplojre of complainant; as to the others, the complainant may be left to its remedy at law.

An attack is also made on the clauses requiring an accounting of profits and reports from time to time of the business done by defendants. The argument seems to be that this is the rule of patent cases instead of that applicable in an ordinary equit}- suit. We do not understand that there is any distinction;, on the contra^, we take it that the general equitable rule is to require the wrong-doer to account for and pay over the profits of his wrong-doing.

With the minor modifications indicated above, the decree will be affirmed, with costs.

For affirmance — The Chief-Justice, Trek chard, Parker, Mikturk, Kalis ch, Black, Katzekbach, Campbell, Lloyd, White, Gardker, Yak Buskiek, Clark, McGlenkok, Kays—15.

For reversal—None.


text:
    Edward B. Hollinshead, appellant, v. Atlantic City Railroad Company, respondent.
    [Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:

      “I am satisfied that this suit-is controlled by the same principles as Coombs v. Atlantic City Railroad Co., in which latter case I have recently filed an opinion to the effect that this court, should not grant relief based on the legal rights in land which are claimed by the bill until such rights shall have been established at law. I am unable to discern that the contract between the predecessor in title of complainant herein and defendant's predecessor in title touching the lane, railway station and siding, or the circumstance that complainant herein owns land on either side of and adjacent to the railroad right of way, in any way removes the fundamental objection that the purely legal rights in land asserted by complainant herein are doubtful and unsettled in this state, and that the injury threatened is not irreparable in its nature.
    “I will advise an order sustaining the motion against the bill.”

      Messrs. Bleakly, Siockwell & Burling, for the appellant.

      Messrs. French & Richards, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in' the court below by Vice-Chancellor Learning.

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

For reversal—None.


text:
    J. Howard Coombs, appellant, v. Atlantic City Railroad Company, respondent.
    [Decided October 20th, 1924.]
    On appeal from a decree or order of the court of chancery advised by Vice-Chancellor Learning, who filed the following . opinion:
    “Defendant moved to strike out complainant’s amended bill on the ground that its averments are inadequate to support the equitable relief sought.
    “June 28th, 1923, the board of public utility commissioners adjudged the Oakland avenue grade crossing, in the borough of Oakland, over the right of way of tire Atlantic City Railroad Company, dangerous to public' safety, and ordered that company to relocate that crossing as an under-grade crossing at Clinton avenue in 'that borough, and ordered the Oakland avenue crossing vacated upon the completion of the crossing at Clinton avenue, in accordance with plans adopted by the board. The bill seeks to enjoin the railway company from closing Oakland avenue.
    “No crossing at this time exists at Clinton1 avenue. When that crossing shall have been completed, pursuant to the order of the hoard of public utility commissioners, should Oakland avenue be then closed to- travel, the property owners on Oakland avenue near and southwesterly of the crossing, in seeking to reach points northeasterly of the railroad, will be obliged to cross the railroad at Clinton avenue, a point some one thousand one hundred feet northwesterly of Oakland avenue.
    “Complainant owns property on Oakland avenue about seventy feet southwesterly of the crossing. Oakland avenue is a public street of the borough.
    “Wo claim is made of want of power of the- board of public utility comniissioners to vacate and close- Oakland avenue at the crossing as against public rights. ' The ground for relief is that complainant, as owner of land on Oakland avenue near the crossing, has special and private rights which the order unlawfully invades.
    “It must be said to- be settled in this state- tlia,t the legislature enjo-ys the power to vacate a public street without compensation to owners of land on the street either near or even abutting the part of the street vacated, and that this power is unrestrained by our constitution; that the right to use a public street is in each citizen the same, and is exclusively a public right under control of the representative^ of the public and subject to- alteration or abolition, when, in the judgment of those to whom the public interests are confided, those interests demand such action; that property owners along the vacated street become entitled to'compensation for losses suffered only when the legislature 'so provides. Newark v. Hatt, 79 N. J. Law 548; Kean v. Elizabeth, 54 N. J. Law 462.

    “It follows that complainant can be awarded no relief ba-sed solely upon the fact that he owns land fronting on the public street referred to- near the part vacated.
    “But the amended hill goes further. It avers that before Oakland avenue became a public highway there existed over the same route ‘an alley, lane or private right of way7 which extended from White Horse pike, a public highway, to and into lands of complainant’s predecessor in title, and was used by complainant’s predecessor in title as a means of travel between his said land and White Horse pike. This alley, lane or private right of way is alleged to have been so used for fifty years prior to the acquisition in the year 1877 by defendant’s predecessor in title of its railway right of way which crosses at right angles. It is further averred that defendant’s predecessor in title recognized the said alley, lane or private right of way and planked the crossing to facilitate travel, and that thereafter its use continued uninterruptedly by complainant’s predecessor in title and by the public generally, and said route is now a public highway.
    “The theory of the amended bill is that complainant still enjoys a private right in the nature of an easement over the route which is now a public highway and known as Oakland avenue, and that the vacation of Oakland avenue as a public highway at the point where it crosses the railroad, is not operative to impair complainant’s private easement.
    “It will be observed that the amended bill invokes the jurisdiction of this court over the invasion of a mere private legal right in land. That this court may, by injunction, protect such right, is well settled; but it is equally well settled that primary jurisdiction over controverted legal titles to land is to be found in the courts of law, and when substantial doubts arise touching a complainant’s legal title, whether that doubt arises on the face of a bill before answer filed or at final hearing, a court of equity should not assume to adjudicate that title. The exceptions to this rule, which are to be found in cases in which a recognized primary equity jurisdiction exists, are not here involved.
    “The present inquiry is whether the material facts set forth in the amended bill, which facts this motion tentatively admits to be true, disclose with adequate certainty that comr plainant will enjoy a private right of way across the land occupied by defendant’s railroad after the lawful vacation of the public highway across that land shall have become effective.

      “The bill avers that a ‘lane, • alley or private right of way’ existed from the farm of complainant’s predecessor in title to White Horse pike for .fifty years before defendant’s predecessor in title acquired its railway right of way, and that, eventually, this land, alley or private right of way became a public way, and that complainant and his predecessors in title have used it during all of that period for travel to and from that farm. Little in,ore than this is disclosed touching the way; whether the way originated by express grant or by an implied grant from user is not disclosed. Eor is it disclosed whether the user by complainant of the ‘lane, alley or private right of way’ prior to its becoming a public way was adverse or merely permissive. If adverse user is relied upon to establish complainant’s private rights that user must have been continued, uuinterrupted and under claim of right adverse to the owner of the soil, all for the statutory' period. Eor does it appear that the way was a way' of necessity. The averments of the amended hill measurably indicate that the ‘alley', lane or private right of way’ referred to was a mere lane on the land of another which com plainant’s predecessor in title was permitted by the owner of the fee to use as a convenient' or the only direct route between his farm and the White Horse pike.
    “But assuming that the amended bill adequately discloses that up to the time the route in question became a public highway' there existed over that route an easement of way 'appurtenant to the land now owned by' complainant, the purely legal inquiry' then arises whether that private easement can be said to have thereafter existed as a private way in and over the public highway, and will survive the vacation of the public highway.
    “Touching this inquiry' it will be found that the decisions of our sister states are in conflict^ while in this state the law in that respect must be said to be unsettled. In Dodge v. Pennsylvania Railway Co., 43 N. J. Eq. 351, a case in which the easement which was claimed arose from conveyances on proposed streets, it is said (at p. 358) of the- reported case: ‘The precise question, then, which this case presents, is this: Is it settled, as a matter of law in this state, that if any part of a public street is at any time subsequent to the date of a conveyance of land abutting on it, abandoned or surrendered, that the grantee named in such conveyance takes, by implied grant or covenant, a private way over that part of the street in which the public-right has been extinguished? I know of no case, decided by a superior court in this state, which so1 declares the law. None was cited on the argument of this motion. The question is one on which the courts of our sister states are at variance. The opinion in Booraem v. North Hudson Railway Co., 13 Stew. 557, says: “There is some controversy whether the private right of way in grantees, holding by such conveyances, is merged in the public right when the dedication is consummated by public acceptance, or whether it is merely suspended thereby, and will revive if the public right is afterward abandoned.” There are several adjudications made by courts, distinguished for the ability and learning of their judges-, which hold that, when the public right attaches, the preceding private right is thereby extinguished, and that, if the public right is subsequently surrendered, the adjacent owner takes the land to the middle of the street, discharged of all right of way. Citing cases. The adjudications standing in conflict with this view are, perhaps, more numerous than those supporting it, but which of the two conflicting doctrines is most consistent with right reason and sound public policy this court has no authority to decide. The question, like all other questions of-legal title, falls within the exclusive jurisdiction of another tribunal.’
    “It may be that a private wa.y over the land of another, founded in grant, would not become wholly merged or extinguished by the lawful creation of a public highway over the same route; but until the appropriate tribunals of this state have so determined tins court cannot properly so decide as the basis of relief of the nature here sought. The threatened closing of Oakland avenue will in no sense occasion an irreparable injury to. complainant. Under the order of the commissioners, Oakland avenue cannot be closed until Clinton avenue shall have been opened. Should Oakland avenue be then closed to travel by defendant, complainant may use the longer route and establish at law the right for which he now contends, after which this court- can afford the protection he now seeks.
    “Defendant’s motion will be allowed.”

      Mr. Lewis Starr, for the appellant.

      Messrs. French & Richards, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

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

For reversal—None.


text:
    Martha Harlow, complainant-respondent, v. Alfred A. K. Harlow, defendant-appellant.
    [Submitted June 9th, 1924.
    Decided October 20th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church.

      Mr. Merriit Lane and Messrs. Gifford '& Miller, for the appellant.

      Mr. Charles J ones, for the respondent.
   Per Curiam.

This is an appeal from a decree of the court of chancery in a suit by the wife against the husband for maintenance, based upon the constructive desertion of the wife by the" husband. The court below found that the husband, without any justifiable cause, abandoned the wife and separated himself from her (in that the husband, by his conduct, compelled his wife to leave him) and neglected and refused to maintain and provide for her support and maintenance, and decreed the relief prayed for.

We think that was right.

The parties were married in 1907. The wife had been married before, and by the first husband had a son, Eobert, who lived with the parties. They were unhappy in their married life and quarreled frequently, and the proofs disclose that the husband treated his wife cruelly. There is much persuasive evidence of violent physical abuse by the husband of the wife. We think there can be no doubt that she was justified in leaving him the first time, which was on May 1st, 1921. About 'three weeks after the separation, through the good offices of their minister and on the husband’s promise to do better, the wife returned and lived with him until December'24th, 1921. She then left him again, and we think the proof is conclusive that she was justified in thus leaving him because of his unkind and abusive treatment of her, inclusive of physical violence towards her. This is shown not only by her testimony and that of her witnesses, but also, as we think, by the admissions' of the defendant.

We have read carefully the letters thereafter written by the defendant, asking his wife to return. But upon such reading, considering all the circumstances, we do not think there is anything in them which put the wife in the wrong in refusing to return to him again. It is probably quite true that the wife was of a very nervous type and at-times exhibited hot'temper, but that was not remarkable in the circumstances disclosed by the record. It is also probably true that her son, Robert, was the cause of much of the irritation between them, but our conclusion is that the conduct of the husband in the way of unkindness and abuse fully justified the wife in leaving him as she did, and refusing to return to him.

The decree below will be affirmed, with costs.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Busicirk, Clark, McGlennon, Kays—15.

For reversal—-Hone.