author: Emery, V. C.

text:
    Jacob S. Rogers et al. v. The Rogers Locomotive Company et al.
    [Filed July 19th, 1901.
    1. Where in a petition to set aside the confirmation of a receiver’s sale on the ground of an increased bid made at the time of confirmation, on the alleged request of the receivers, there was no allegation that the purchasers were connected with the representation of the receivers, such representation could not avail the subsequent bidders to the detriment of the purchasers.

      2. The fact that a bidder, after the confirmation of a receiver’s sale, makes a different and better offer, on an application to set aside the confirmation, a few months later, than at the confirmation, will not affect the purchasers.
    3. Certain privileges were offered by the receivers in their offer of sale, and a contract of sale, subject to confirmation, was made, wherein the purchasers made the granting of these privileges a condition of their bid, and agreed to open and operate the plant as located as soon as possible. At the time of the confirmation another bid of an increased amount was made by parties who would not undertake to run the works where located. —Held, that the contract of sale was properly confirmed, the purchasers being entitled to the special benefit of their contract.
    4. Where after the confirmation of the receiver’s sale the purchasers took possession and commenced operations on a scale so extensive that the sale could not be set aside without loss to the purchasers, and there was no appeal and there is delay in making the application to set aside the sale, the sale will not be set aside for an increased bid at the time of confirmation.
    5. Where the principal stockholder of a corporation whose plant was sold by receivers after consultation with him did not appeal from the order of confirmation, but accepted a lease for a part of the property conveyed, from the purchasers, and did not himself complain of the action of his counsel in failing to make his wishes known at the confirmation, the affidavit of such principal stockholder, objecting to the sale, made in support of an application by another stockholder to have the confirmation set aside, not sufficient to set aside order.
    On petition of George H. Longbottom to set aside order confirming sale, &c.
    Heard on petition and affidavits, and answers and affidavits.
    Tbis is an application by a stockholder of a corporation to set aside an order of the court confirming a written agreement for sale of the plant and other property of the corporation made between the receivers of the corporation and Smith & Halloran, as purchasers, for the sum of $602,000, to be paid or secured as provided by the contract. The contract made on May 1st, 1901, was, by its terms, subject to confirmation and approval by the court. At the time and place fixed by the court for the hearing on the confirmation May 14th, 1901, counsel representing the International Power Company, in open court, made a bid of $655,000 for the property proposed to be sold, offering to deposit with the court $50,000 or $100,000 for the faithful performance of their offer, and to put in a bid on that day before the court. Mr. Longbottom, a stockholder of the company, holding seventeen shares, and who was at this time in the employ of the power company, applied, through the counsel of the power company, who also represented him, to have the action on the contract made by the receivers postponed for the purpose of inquiring into the offer of the power company. After hearing the receivers and such stockholders as desired to be heard upon the question of approval of the contract notwithstanding this offer, the court directed the sale to be confirmed. The order confirming the sale was made on May 14th, 1901. On June 20th, 1901, application ivas made by the power company on notice to the purchasers and receivers for leave to file a petition in the cause to have the order confirming the sale set aside and the receivers directed to accept their bid. This application was denied on June 24th, 1901, for reasons given in a memorandum sent to counsel. Before the decision upon this application, and on June 22d, at two o’clock in the afternoon, the present petition in the cause to set aside the order was filed by Longbottom, upon which an order to show cause was granted, returnable on June 29th. On the same day of filing this petition and before the filing, according to the statements of counsel, an appeal from the order confirming the sale had been signed by or on behalf of Longbottom and mailed to the clerk for filing, and notice of the appeal was served upon the solicitor of the purchasers on June 22d, 1901. Upon the return of the rule, application was made by the purchasers to dismiss the petition because of the pendency of the appeal, and the petitioner' thereupon withdrew the appeal by leave of the court, and over the objection of the counsel for the purchasers, and the application on the present petition was then brought on for hearing.
    The substantial ground upon which the petition to set aside the order confirming the sale is based, is that the receivers, or one of them, susbsequent to the execution of the contract of May 1st, invited or induced the presentation of a higher bid from the representatives of the power company and assured them that a bid of $650,000, if made by them at the time and place fixed for the hearing on the confirmation, would be accepted, unless a higher bid was then made, and that this bid of the power company at the time of the hearing was made pursuant to this suggestion, that the receivers failed to inform the court that this bid was made under these circumstances, and of their promise to accept the bid.
    It is also alleged that Jacob S. Bogers, the holder of a majority of the stock, who was present in court, desired the power company’s bid to be accepted, and requested his counsel, who was also counsel for the receivers, to so state, but that this statement was not made. It is claimed that the confirmation of the contract of sale by the court was made without its being fully informed of the circumstances of the power company’s bid, or of the attitude of Mr. Bogers toward the same, and of his opposition to the acceptance of Smith & Halloran’s bid. It is further alleged that the sale to Smith & Halloran, on the terms of their bid, is inadequate, and, in view of the higher offer of the power company, should not be accepted, the offer being now made to pay the entire amount of the bid in cash, if necessary. Petitioner further alleges that the plant has depreciated; that it is not an adequate security for the bonds proposed to be issued, $500,000 proposed to be issued; that the purchasers have paid only $25,000 of the $102,000 cash payment, provided by the ■contract, and that the contract of sale has not yet been executed, although the purchasers have, since the confirmation of the ■contract of sale, and pursuant to its terms, been put into possession of the works and are now operating the plant, under contracts for work which are charged to have been made before the confirmation and to have been provisional in their character.
    The answers of the receivers substantially deny that, after the execution of the contract with Smith & Halloran, they, or either of them, encouraged or invited a further or higher bid from the power company, or their representatives, or-informed them that a bid of $650,000 would be accepted if presented by May 14th, and allege that the only statement made by them, or their counsel, to the power company, or their representatives, after the execution of the Smith & Halloran contract, was that, if any bid was subsequently received by them, it would be their duty to submit it to the court, at the time of presenting the contract for confirmation, and they deny that the power company’s bid was made in pursuance of any promise or suggestion from them that it would be accepted. As to the petitioner’s objection to the confirmation, the receivers allege that, before the execution of the Smith & Halloran contract, he entered into the employ of the power company, and has since continued in its service; that he is, or was, the owner of only nineteen shares of the stock, and that his opposition to the confirmation and his present application is made in the interest of the power company. As to the status of Mr. Eogers, the owner of the majority of the stock (fifteen thousand one hundred and two of the twenty-seven thousand and five hundred shares), toward the Smith & Halloran contract, the receivers • say that the contract was made only after consultation with him and on his express approval of all the terms of the written contract, which he had in his possession for a day before the execution and in which terms were added on his suggestion; that on receiving his approval, and not until then, the receivers signed the contract. They deny that the court, at the time of the sale, was not informed that Eogers desired the highest bid to be accepted, and further say that immediately .after the confirmation he was informed by them of the decision of the court and of all the proceedings.
    They deny the depreciation of the plant, or that it is an insufficient security for the $500,000 bonds, and say that although the title has not yet passed to the purchasers, yet this has been delayed by reason of the character of the numerous papers and .attendant contracts required by the contract of sale; that the purchasers have paid or deposited, in the manner required by the contract, the whole $102,000 required for the cash payments, .and that the receivers entertain no doubt whatever as to the .ability and intention of the purchasers to carry out the contract.
    In reference to the good faith on their part in executing the contract with Smith & Halloran and recommending it for approval, notwithstanding the offer of the power company, the' receivers, in their answers and affidavits, set out the negotiations and interviews between themselves and the representatives of the power company, previous to the execution of the Smith & Halloran contract, and submit that they then believed, and were justified in believing, that the power company did not intend to purchase or bid for the property on any basis at all acceptable, and that it was their duty to accept Smith & Ilalloran’s bid and execute the contract in order to prevent great loss.
    The answer of Smith & Halloran, the purchasers, sets up that the grounds now alleged by the petitioner for setting aside the order are the same grounds which were urged at the hearing on the application, and that the petition is an application for a rehearing of the matter already decided. They further allege that immediately on the confirmation of the sale, and in pursuance of its terms, they took possession of the locomotive works sold, and put them into operation, and now employ about eight hundred hands, and that the Rogers Locomotive Works, a company controlled by them, and the company which was to be organized pursuant to the contract for the purpose of carrying on the factory and taking the title, has no other means or plant to carry out the obligations it has incurred in relying on the confirmation of the sale, and could not now be disturbed in its possession, without irreparable damage and injury to it and to the purchasers.
    The laches of the petitioner, who has seen and known of their possession and operation of the plant, is set up as a bar to relief, and it is further claimed that the rights of the purchasers and of the Rogers Locomotive Works to the property are now vested and cannot be disturbed, so long as they perform the obligations of the contract of sale, and these they allege they have performed.
    The pending appeal of petitioner from the order confirming the sale is also set up as a bar to the jurisdiction to open, amend or modify the order.
    The affidavits filed with their answer disclose the entire negotiations between the purchasers and the receivers leading up to the final definite contract of sale. The contract, by its terms, provided “that the parties should not be bound by the agreement until it shall have been confirmed and approved by the court of chancery of New Jersey,” which confirmation and approval the receivers covenanted that they would, with all reasonable diligence, endeavor to obtain. Upon the execution of the contract, the Rogers Locomotive Works (organized pursuant to the agreement) entered into contracts for the manufacture of thirty locomotives for $460,000, conditioned on the approval of the agreement; another for ten locomotives for over $130,000 was made since the approval; in addition, they have have submitted bids for $400,000, which will be binding upon acceptance; have made yearly contracts with managers and agents for $12,000, and have now a weekly payroll of $7,000 a week, which, within a week or two, through contracts taken and work laid out, will amount to about $10,000 a week. The purchasers have also procured subscriptions for $250,000 of the capital stock of the Eogers Locomotive Works, which, by the agreement, is to be paid in as working capital before the title is passed to the company; they have paid in, as required by the contract, the $102,000 in cash, and, as they allege, have performed, and are ready to perform, all the obligations on their part contained in the contract. Their affidavits also show that, since the approval of the contract, Jacob S. Eogers has expressed his approval of the contract and sale, and has accepted a lease for a room for his own use in the office building of the old company, which he desired and was promised to him at the time of the execution of the contract, and he held this lease at the time of this application.

      Mr. Robert H. McCarter and Mr. L’Amoreaux (of the New York bar), and Mr. Guile (of the Boston bar), for the petitioner.

      Mr. John W. Chiggs, for Smith & Halloran, purchasers.

      Messrs. Pennington & Beam, for the receivers.

      Messrs. McGee & Bedle, for the stockholder, contra.

   Emery, V. C.

(after statement of the issues).

There is no claim in this petition, or in any of the affidavits, that the purchasers, Smith & Halloran, were in any way responsible for or connected with any representation made by the receivers or their counsel to the representatives of the power company, after the execution of their contract with the receivers on May 1st, 1901, or with any mistake or misapprehension on the part of the power company, as to the time when they could put in a bid. Manifestly, therefore, after the execution of their contract they could not be divested of any rights under the contract, by reason of any transactions between the receivers and the power company, to which they were strangers, and which were in derogation of their rights, if any, under the contract.

The only basis of airy claim to deprive them of the benefit of their contract, even if its approval were now the sole question before the court, must therefore be placed solely on the fact that subsequent to their contract, and before its confirmation, a higher bid than theirs was made for the property. On this question as to the effect a higher bid will or should have upon the confirmation by the court of a contract for sale, made at either public or private sale, and which must be confirmed, the rule in this state is, as I understand it, settled beyond dispute. As to public sales, the rule that a sale fairly made will not be disapproved merely because of an increased bid has long been applied. In Morrisse v. Inglis, 1 Dick. Ch. Rep. 306 (Errors and Appeals, 1889), over ten per cent, advance was offered; in Bethlehem Iron Co. v. Philadelphia and Seashore Railroad Co., 4 Dick. Ch. Rep. 356 (Chancellor McGill, 1892), twenty-one per cent, advance; and in Bliss v. New York Life Insurance Co., 6 Dick. Ch. Rep. 630 (Errors and Appeals), $1,000 in advance was offered. In each case the sale was confirmed notwithstanding the increased bid following the principle laid down in the first case, Morrissee v. Ingles, that the settled policy of. our law has been to encourage bidding and purchases at public sales, and that purchasers making Iona fide bids are to be protected in the advantages of a fair purchase (at pp. 808, 809). I do not understand that in the later decision, Rowan v. Congdon, 8 Dick. Ch. Rep. 385 (1895), relied on by the petitioner’s counsel, the court of errors at all qualified or overruled the rule of these previous cases. No such qualification was declared, and Rowan v. Congdon was in part based on proof of a misapprehension existing at the time of the sale, by reason of which a purchaser, who was willing to give one hundred and fifty per cent, advance at that time, was not then procured.

It is also the law of this court that for the same reason and upon the same principles, the rule is to be applied to private sales made by guardians and others under authority of the court of chancery. Leary's Case, 5 Dick. Ch. Rep. 383. The general settled rule, therefore, is that where the sale is made for a fair price and in good faith, and there is no irregularity, fraud, mistake or legal surprise, with which the purchaser is or ought to be chargeable, the subsequent offer by another bidder of a higher price is not of itself sufficient reason for refusing confirmation of a sale or of reopening the confirmation. Nearly all public and private sales by officers of the court now require confirmation, and to allow such sales to be opened by the mere increase of the bid at the time fixed for confirmation, would practically result in the subversion of the entire system of sale by officers, either public or private, and would make their first contract of sale merely the starting point for bids on the property, instead of a tona fide, genuine sale.

In the present case the increase offered was $53,000 in cash payment (less than temper cent.), the other terms of the contract not being proposed to be changed. The fact that the power company is now'said to be ready to pay the entire amount in cash cannot be considered as affecting the purchasers’ right, either under the contract or the confirmation. No such offer was made by it on May 14th, 1901, and at that time no objection was made by any stockholder to the amount to be secured by mortgage. So far as the rights of the purchasers to the protection of the order confirming the sale can be affected by any offer of another bidder, it must be an offer previous to, or at the time of, confirmation. For, manifestly, a different or more advantageous offer, made more than a month after the confirmation, and made after the opening and operation of the plant purchased, and after the purchasers’ rights under the contract have, by its terms, become vested, is practically an offer to buy the purchasers’ property, with the value, if any, since given to it by their purchase, and to buy it for the benefit of the new bidder and the stockholders.

There were special reasons in this case why the mere increase of the bid, by less than ten per cent., should not have deprived the purchasers of the benefit of the contract. It appears by the record in the case, the bill filed by Jacob S. Rogers and others, the answer filed by the petitioner, Longbottom, and others, by the circular letter of the receivers inviting bids, by the negotiations for sale and the contract finally made, that the resumption of the business formerly carried on by the company on an extensive scale, and its continued operation in the city of Paterson, was desired by all these parties and by the city of Paterson and by transportation companies interested in the continuance of the business. The receivers, availing themselves of this condition of affairs, were enabled to offer to purchasers certain privileges or advantages from the city and these companies connected with the operation of the plant. These privileges tended to attract purchasers, and were substantial benefits secured to the stockholders in the disposition of the property. Smith & Halloran, the purchasers in this case, made the granting of these privileges a condition of their bid, and, on their part, in consideration of making these conditions and for the purpose of enabling the receivers, or anyone else who should be delegated,- to undertake the work of obtaining them from the parties interested, agreed, as appears by their written proposals, that the new company tó be organized by them would, as quickly as possible, open and operate the works and keep them located in the city of Paterson. The contract finally made contained provisions for the conveyance or assurance of these privileges or rights on behalf of the city and the companies, and contained, also, a provision (sixth) that the new company should, as promptly as may be, open and operate the plant in the city of Paterson.

The final deposit of the amount of the cash payment ($102,000) was, by the contract (article 3), to be deposited by the purchasers when the receivers had obtained, among other things, the conveyances and assurances of the privileges and rights from these outside parties. The whole sum has, as appears by the answers and affidavits, been deposited as required by the contract, and, as I understand the contract and the affidavits of the purchasers and the receivers, the only thing remaining to be executed under the contract, before the conveyance is made to the new company, is the payment of $250,000 in cash, as its working capital, which is, by the contract, to be actually paid in before the transfer of title to the new company. This capital is subscribed, and the purchasers say they are able to complete the contract, and the receivers say the purchasers will be able to complete it. Whether the power company, on its part, would have been willing originally and before the Smith & Halloran contract to continue the operation of the plant in Paterson, is open to some question, in view of the affidavit of Mr. Pennington, counsel for the receivers, that, in his conversation with a representative of the power company, after the execution of the Smith & Halloran contract, he (Mr. Pennington) stated to him that it would be impossible to obtain the privileges from the city of Paterson for the power company, inasmuch as the representative of this company had stated that, in case that company became the purchaser, it would not undertake to run the works permanently in Paterson, or, at least, that part of Paterson.

The case shows, I think, that the stockholders in this case, by reason of these special privileges from outside parties, secured by or with the assistance of the receivers, on the faith of the special assurances of Smith & Halloran, by their letter and contract, have obtained, by the negotiation of this special and complicated contract, an advantage which the stockholders could not otherwise have secured, and have obtained a price which, as appears by the affidavits, is about fifty thousand dollars less than the price fixed by Rogers himself for a sale, before it went into the hands of the receivers, and is more than three times as large as the proposition or suggestion previously submitted verbally to the receivers by the power company, which proposition was not, apparently, based on the continuance of the operation of the plant. In view of these special circumstances relating to the negotiation and completion of the contract, the purchasers had an additional claim to the benefit of their contract, and neither they nor the receivers should be deprived of it by the mere increase of the bid made by the power company at the time of the presentment of the contract for confirmation. Hpon the case as now presented, and treating it in the most favorable light for petitioner, viz., as if the sole question were whether the contract should be approved, notwithstanding the offer made in open court by the power company, I conclude that the contract was one which should have been approved, and that, from that point of view, the application to set aside the order confirming the sale should be denied.

But the petitioner and the purchasers do not now stand in the same position as at the time of the order confirming the sale. Neither the petitioner nor any other stockholder has appealed from the order. In the meantime the purchasers have taken possession of the plant, pursuant to the express provision of the contract, and have commenced its operation by the new company, on a scale so extensive that the sale could not be set aside without an apparently enormous loss and injury to them and to the new company, to say nothing of the interference with the rights which may have since been secured by the new company from the city of Paterson and the transportation companies on the faith of the confirmation of the contract of sale and in order to carry out its provisions. The change in the situation of the purchasers and of the receivers since the confirmation, and the delay of the petitioner in making his application to set aside the order, are sufficient reasons for refusing to disturb the order.

It is principally because of the purchasers’ rights under the contract and its confirmation, and because they are not in any way connected with airy of the circumstances relied on in the petition as a reason for reopening the sale that I decline to disturb it, but it is only just and proper to, add that, in my judgment, the case shows that the receivers are not chargeable with any improper or inequitable dealing toward the power company in reference to the presentation of its bid, after the execution of the Smith & Halloran contract. Under the entire facts and circumstances of the case, as now disclosed, they were, in my opinion, justified at the time of making the contract, in believing that the power company did not intend to make a bid to them for the property and the charge that the subsequent increased bid of the power company was induced by them, on the assurance that it would be accepted if made, is not substantiated. As to the claim that the position of Mr. Rogers, the principal stockholder, was not fairly represented to the court by his counsel, who was also counsel for the receivers, this, even if true, is manifestly a matter which could not affect the purchasers and which could not in any event, and if Rogers himself now complained of it, operate farther than to induce the court now to consider whether his objection to the sale at the time would have been sufficient reason to refuse to affirm the contract. As I consider on the whole case that the contract was one which should have been approved and as it now appears (1) that the contract was made after consultation with Mr. Rogers, and with his express approval; (2) that he has not appealed from the order nor applied to set it aside, and (3) that'he has encouraged the purchasers in the carrying out of the contract since its execution, and has accepted a lease from the new company for a portion of the property to be conveyed to it under the contract, and (4) that he does not on his own behalf make any complaint of the action of his counsel, his present objection to the sale, presented by way of affidavit to the petition of Longbottom, cannot be considered as presenting any basis for action of the court to revoke the order.

The application to set aside the order confirming the sale must therefore be denied, and the contract, as confirmed, must stand, to be enforced both by the receivers and the purchasers.


source: Caselaw Access Project

author: Embry, V. C.

license: Public Domain

text:
    Robert W. Lyle v. J. Edward Addicks.
    [Filed August 23d, 1901.]
    Complainant and defendant, by agreement in writing, agreed, inter alia, (1) that defendant, on the conveyance to a company which he was to organize, of the assets of an insolvent corporation, which defendant had offered to purchase, would give complainant three notes of the new company, payable one, two and three years from date, to be endorsed by A, B and defendant in the order named; and (2) that he would execute a general release to complainant of all claims and demands. Complainant, on his part, in consideration of the fulfillment of defendant’s agreement, agreed (1) to give a release to defendant from all claims against the company or defendant, except on the notes; (2) to purchase and assign to defendant, claims of two other named creditors against the insolvent corporation; (3) to assign all complainant’s shares (three hundred and ninety-six) in the insolvent corporation, and (4) to give his services in bringing about reorganization. Complainant did give these services. Defendant refused to perform the agreement.-—Held, (1) defendant’s claim that the agent who executed the agreement on his behalf had no authority to do so, not sustained upon the evidence; (2) equitable jurisdiction exists for the specific performance of the defendant’s contract to purchase the shares and claims and also of the agreement for general release, and inasmuch as the consideration for the defendant’s contract is entire and must' be wholly performed on the part of the complainant, jurisdiction to do full and complete 'justice, on the whole contract, exists, and damages for the refusal to give the notes may be given in connection with decree for specific performance.
    Heard on bill, answer, replication and proofs.

      Mr. Otto Grouse, for tbe complainant.

      Mr. Sherrerd Depue, for the defendant.
   Embry, V. C.

This is a bill for the specific performance of a written contract alleged to have been made by the defendant for the purchase of debts or claims held by complainant and others against an insolvent corporation, the purchase of shares of stock of this corporation and for the execution of a general release of claims held by defendant against complainant.

The affairs of the insolvent corporation, the Staten Island Terra Cotta Company, were in the course of settlement in insolvency proceedings pending in this court, the defendant being one of the two receivers. The defendant was also the holder of the majority of the stock and of the mortgage bonds of the company and was its largest creditor, his claims amounting to nearly ninety per cent, of the whole indebtedness.

Complainant, who had been connected with defendant in the management of the company previous to the insolvency, held three hundred and ninety-six shares of the stock and had proved a claim against the company for over $30,000. Defendant desired to bring about a settlement of the company’s affairs by means of a purchase of its assets by himself and their subsequent transfer to a company to be organized by himself or under his control, and defendant proposed to submit to the court an offer for such purchase. Defendant desired complainant’s services in bringing about this reorganization, and the agreement in question purported to be made for the purpose of securing these services of complainant and for the settling of all demands of either party against the other by general releases to be executed and delivered upon both sides. The agreement, dated June 14th, 1897, after reciting this desire of the defendant, as the majority stockholder and bondholder of the company and its largest creditor, to effect this reorganization, and his intention to make the offer to the court and his desire to have complainant’s assistance in the reorganization, provides on defendant’s part (1) that he will make the offer within twenty days; (2) that if the offer is accepted he will cause a corporation to be formed forthwith, to which the property and assets in the hands .of the receivers will be transferred; (3) that on the consummation of the purchase and transfer, defendant will cause three notes of the new company to be given, payable to complainant’s order for $5,000 each, dated on the day of the transfer and payable, respectively, one, two and three years from the date of the transfer, and endorsed by John Y. Bacot, Geo. L. Eecord and defendant, in the order named, with interest from date; and (4) that at the time of giving the notes defendant will execute a proper instrument releasing complainant from any and all claims or demands which he may have against him.

Following this recital and the defendant’s agreements, the complainant on his part, “in consideration of the premises and upon the fulfillment of the promises and agreements made by the party of the first part,” agreed (1) to execute and deliver to the defendant a release from all claims (except on the notes of the new company) which complainant may have against the said company or defendant; (2) to purchase and assign to the defendant the claims of William Lyle and of Frederick Haffe against the Terra Cotta Lumber Company; (3) to sell, assign and transfer to defendant all his stock of the company, amounting to about three hundred and ninety-six shares; and (4) to give his services in bringing about a reorganization. The agreement, which was under seal, was signed by the complainant, and upon defendant’s part, in his name, by Asa W. Dickinson, as his attorney in fact. The answer denies the authority of Mr. Dickinson to sign the agreement, and the first question to be decided is one of fact, whether the defendant authorized Mr. Dickinson to sign it as his attorney.

Without going into details, I will merely state that my conclusion, reached upon the oral examination before me and confirmed upon reading over and again considering the evidence bearing upon the issue, is that the complainant has satisfactorily made out, by the clear weight of evidence, that the agreement was signed by Mr. Dickinson as defendant’s attorney and by virtue of express previous authority given to him by defendant. The authority was given by a letter signed by defendant, which was, according to the evidence of three credible witnesses, produced at the time of the execution of the agreement, and from the terms of which it was substantially drawn, except in the respect that the provision for “interest from date” on the notes was not contained in the letter. As to this, the understanding between the parties was that the letter did not contain express authority to add the interest clause, and that if the defendant repudiated this part of the agreement, complainant would not insist upon it. Defendant, according to his own statement, was, within a week, informed by Mr. Dickinson of the execution of the agreement, and while he now says that he then told Mr. Dickinson, that he (Dickinson) had no authority to sign an agreement for a general release, he did not then, or at any time previous to the hearing in this cause, specially object to the provision relating to interest, nor is any objection on that account made in the answer in the cause. Defendant’s objections made, as he says, within a week to Mr. Dickinson, appear to have been confined to his authority to execute an agreement for a general release. There does not appear to have been any direction by defendant to Mr. Dickinson to notify complainant of any objection, and no objection to the release was communicated or made, either by defendant or Mr. Dickinson, to the complainant or anyone on his behalf. In the meantime defendant made his offer for purchase on the terms stipulated. A hearing of the creditors upon the proposal took place in July, 1897, and complainant, on his own behalf, and by his influence with other creditors, gave his services to securing the acceptance of the ■offer. The court, upon the hearing, accepted defendant’s offer to purchase the assets, and on September 23d, 1897, a transfer of the assets purchased by defendant of the receivers was made to the Staten Island Clay Company, the company which had been organized by defendant for the purpose. Complainant, after this transfer, tendered himself ready to carry out the .agreement on his part by the execution of the general release to defendant, and the transfer of the claim and stocks, and still tenders these. Defendant refused to carry out the agreement .and 'sets up in his answer Dickinson’s want of authority to sign the agreement, or to sign a general release.

As above stated, my conclusion upon the evidence is, that, with the exception of the clause relating to interest, Mr. Dickinson had previous express written authority from defendant to •execute the agreement, and both, as to this special clause, as to interest, as well as to the entire agreement, as signed, my •conclusion is that defendant’s failure, upon his being informed within a few days by Mr. Dickinson of the execution of the Agreement, to notify defendant of his repudiation, either of the entire agreement or of the interest clause, and his keeping silent upon this objection to the agreement on the score of want of authority, while action on his offer was pending, and while complainant was, to his knowledge, acting on the belief of the validity of the agreement, amounted to a sufficient subsequent ratification of the authority to sign the agreement. Defendant having obtained the benefit of the complainant’s services, in relation to the acceptance of the offer, rendered under a belief that the agreement was executed with authority, is now estopped from repudiating it. It does not appear in the case that any services, other than those relating to the acceptance of. defendant’s offer, were contemplated.

Assuming that the agreement, as signed, is held to be the agreement of defendant, other defences to the bill for specific performance of the contracts are relied on. First, it is urged that inasmuch as the notes to be given were those of a third person not party to the contract, and inasmuch as they were also to be endorsed by third persons, not parties, the defendant has no control over the giving of these notes and the contract cannot be specifically enforced. If the contract to be performed related solely to the notes this objection might have some weight and the remedy at law might be adequate. But the contract covered also the execution of a general release, the purchase of debts and of shares of stock, as to which complainant’s only adequate relief is in equity. The jurisdiction of the court in this case is based on two circumstances—first, that the complainant is, under the principles settled by our decisions, entitled to specific performance of the contract for release and for the purchase of the debts and stock (Cutting v. Dana, 10 C. E. Gr. 265, 270, Chancellor Runyon, 1874); and second, that the contract is one entire contract in which the acts to be performed by complainant, as the foundation for his claim to the release and to the notes, and also as a consideration for the sale of the debts and stock must, by the terms of the contract, all be performed by complainant before or at the time when the release, as well as the notes, - are to be delivered. As a condition precedent to, or concurrent with, the delivery of defendant’s release and of the notes to him, complainant must, on his part, deliver his release to the defendant, and his assignment of the debts and claims. Complainant cannot be required to tender these for the release alone or until the notes as well as the release are given, and the complainant, upon this tender of the release and assignments, on his part, is therefore entitled to a settlement of his entire rights under the contract. Such settlement of the rights, where the contract and the consideration are entire, must necessarily be made in one action and by one court, either in a court of law by damages for the breach of the entire contract, or in a court of equity by specific performance of those parts of the contract, to the performance of which complainant is entitled, and which defendant can perform, with compensation in damages, for the breach of that portion'of the contract which cannot be performed. The compensation, in damages, for a breach of a portion of the contract, together with specific performance of the other portions of the contract, is necessary, because the consideration for all portions of the contract on defendant’s part is entire on the part of the complainant, and specific performance of any portion of the contract cannot equitably be decreed unless complainant on his part performs all. This court, therefore, having a clear jurisdiction for the purpose of specific performance of the contract for release and for the purchase of the claims and stock, must retain the suit for all purposes, for the purpose of doing complete justice, and will .to this end assess the damages to be paid by way of compensation for so much of the contract as defendant may not be able to perform. The equitable jurisdiction, based on the necessity of doing full and complete justice in a single suit, is thoroughly established and scarcely requires a reference to authorities. Pom. Spec. Perf. ¶¶ 436, 474; Story Eq. Jur. ¶¶ 794, 796, 798; Dunn v. Hastings, 9 Dick. Ch. Rep. 503. The situation would be different if the only part of the contract to be performed was that relating to the delivery of the notes, and it was known to complainant, before the bringing of the suit, that the defendant could not perform this contract. See cases cited in Borden v. Curtis, 3 Dick. Ch. Rep. 120 et seq. In reference, therefore, to the part of the contracts relating to-giving of the notes, complainant would, if the time of pa3unent limited had not expired, have been entitled to a decree that the-notes be given within a time to be fixed, or, on failure to do-so, that the defendant pay to the complainant the face value of the notes, with interest. At the time of filing the bill, the time for pa3fment of the first note had not expired, but at the time when the cause was submitted, the time fixed for the payment of the second note had passed and the time for payment of all the notes has now expired. The complainant is therefore entitled, in my judgment, to damages for the non-performance of this part of the contract, in connection with a decree for specific performance of the portion of the contract relating to-the release and the purchase of the claims and stock. Defendant insists that no decree to perform this contract as to the notes- or for damages for its non-performance should be made, as the company had no authority to give a note for this purpose. But. inasmuch as the payment of the complainant by notes of the' new company was arranged by the defendant as part of the consideration or expense to himself of the purchase of the assets to be conveyed to the new company, provisions for the repa3nnent of this part of the expense to the defendant by the new Compaq was entirely within the power of the, latter in settling the consideration for the purchase. Defendant thus had it in his power to make the notes valid beyond question, as against the new company; even if his failure to make such a provision would render the notes now illegal (as to which I express no opinion), this failure of the defendant cannot operate to relieve him of the obligation of the contract.

It is also insisted that the defendant cannot procure, and could not at the time of the bill have procured, the endorsement of Bacot and Record. But it appears, from the evidence, that at the time of the agreement defendant had arranged with them for their endorsements, and having by his contract with complainant stipulated unconditionally for their endorsement, he cannot now be relieved from the obligation of the contract. The last defence to be noticed is that of the alleged inequity in requiring a general release, it being insisted that defendant had claims against complainant amounting to over $125,000. But it also appears that these claims were disputed, that the $125,000 claim was upon notes on which defendant was an endorser prior to complainant, and therefore, prima facie, at least first liable, and that defendant had been advised that he could not recover upon the claim. Inasmuch as defendant, upon his side, also stipulated for and will receive a general release, and as the agreement seems to have been based on the idea of an entire and complete settlement to date between the parties, and a concert of action for the future, in relation to the adjustment of the affairs of the insolvent corporation, out of which all the existing disputes between the parties had arisen, it cannot be said that the agreement for a general release is unconscionable or unreasonable, even if the question of reasonableness was an open one and at issue in the cause. For as bearing upon the defendant’s present right to raise this question, it should be observed that the contract is under seal, and thus imports a sufficient consideration, and that the evidence shows that the provision for general release was expressly stipulated for.

I will advise a decree for the delivery of the release and the payment of the amount of the notes, upon complainant’s tendering on his part a release and the assignments of the claims and stock.


author: Heed, V. C.

text:
    The Trenton Trust and Safe Deposit Company, trustee, v. Achsah Sibbits et al.
    [Filed June 3d, 1901.]
    1. “Bequest to the children of my sister Diademma Doughty, share and share alike.” One child died before the testator, leaving two children.— Held, that the gift was to a class, and went to those members who survived the testator.
    2. The purpose of section 34 of the act concerning wills is to prevent a l'apse. There was no lapse by reason of the death of a child of the sister before the death of the testator, for the gift, by legal inference, was to those children only who survived the testator.

      Mr. James Buchanan, for the complainant.

      Mr. John T. Bird, for Achsab Sibbits et al., defendants.

      Mr. Carroll Boltins, for Mary S. Hankins and Lillian P. Cook, defendants.
   Heed, V. C.

The single question left open for decision is whether section 34 of the act concerning wills is operative in cases of a gift to a class of persons. The question arises under the will of John Barnett, deceased. In item 8 he provides

“the remainder of the income of my estate, during the life of my wife, I give and bequeath as follows: one-third part thereof to my sister Achsah Sibbits, and in case of her death before the decease of my wife, the money to go to her children; one-third part thereof to the children of my deceased sister Diademma Doughty; and one-third part thereof to the children of my deceased sister Mary Ann Ulerick.”

Item 9 provides

“upon the death of my said wife, then I direct my said stores and dwelling-house to be sold, and the proceeds thereof, together with all other property belonging to my estate not herein disposed of, I give and bequeath as follows:
“1. $1,000 thereof to each child of my deceased sister, Mary Ann Ulerick, who shall be living at the date of distribution.
“2. One-half of the income of the remainder to my sister Achsah Sibbits, during her life, and at her decease the principal to go to her children share and share alike. And in case of the death of any child, leaving issue living at the time of distribution, such issue to take the parent’s share.
“3. The balance to go to the children of my deceased sister Diademma Doughty, share and share alike.”

The testator died June 6th, 1897. Mary Ann Hoffman, one of the children of testator’s sister Diademma Doughty, died in the month of March, 1896, leaving surviving her as children Lillian P. Cook and Mary S. Hankins.

The question presented is, -whether Lillian P. Cook and Mary S. Hankins take the share of testator’s estate which Mary Ann Hoffman would have taken had she survived the testator.

Without statutory intervention or express testamentary direction, it is entirely settled that, upon the death of a legatee before the testator, the share which would have gone to such legatee if he had survived the testator falls into the residue.

In the case of a gift to a class, where, upon the death of one or more of the members- of the class before the testator, the remaining members will take the entire gift equally, no lapse-occurs unless all the members of the class predecease the testator.

That the bequest to the children of Diademma Doughty was-a gift to a class is entirely clear. Gordon v. Jackson, 13 Dick. Ch. Rep. 166.

Nor will the direction that the gift shall go to the children, share and share alike, destroy the class.

/The gift is to such of the children as are alive at the death’ of the testator, no other date for ascertaining the members of the class having been fixed by the testator. It is therefore those who survive the testator who are to take, share and share alike.

“Thus [says Ml'. Jarman], if property be given simply to tlie children, or to the brothers and sisters of ‘A,’ equally to be divided between them, the entire subject of gift will vest in any one child, brother or sister, or in any larger number of these objects surviving the testator, without regard to previous deaths.” 1 Jarm. Wills § 311.

The right of the surviving members of the class is to take-the gift; or, more accurately, the object.of the gift is the surviving children as a class, without regard to those who had died before the testator. Gifts of this kind are removed from the operation of the ordinary rule embracing lapsed legacies and devises.

Unless this gift, therefore, to the children of the sister of the testator, who form a class, is within the operation of the thirty-' fourth section of the act concerning wills, the surviving children of the deceased sister will take the entire gift to the class, share and share alike.

The original act for the prevention of lapses was passed in 1824. P. L. of 1824 p. 174. It is in these words:

“Whensoever any estate of any kind shall .or may be devised or bequeathed by the testatment and last will of any testator or testatrix to any person being a child or other descendant of such testator or testatrix, and such devisee or legatee shall, during the life of such testator or testatrix die testate or intestate, leaving a child or children, or one or more descendants of a child or children who shall survive such testator or testatrix, in that case such devise or legacy to such person so stated as above mentioned and dying in the lifetime of the testator or testatrix shall not lapse, but the estate so devised or bequeathed shall vest in such child or children, descendant or descendants of such legatee or devisee, in the .same manner as if such legatee or devisee had survived the testator or testatrix and had died intestate, but this provision shall not apply where the testator or testatrix shall by the said will or codicil thereto, or other instrument, have otherwise directed in regard to the children or descendants of the said devisee or legatee dying as aforesaid.”

This act was amended in 1887, so that its provisions were extended to a devise or bequest of a brother or sister, or any descendant of a brother or sister, of a testator or testatrix. Gen. Stat. p. 3763 § 34.

There is to be found a statute in England and several statutes in other states designed to effect a purpose entirely like or somewhat similar to the New Jersey statute. In respect to the effect of these statutes upon gifts to classes, there is considerable contrariety of view.

The statute of Ehode Island declares '

“that where any child, grandchild or relation, having a devise or bequest of real or personal estate, shall die before the testator, leaving lineal descendants, such descendant shall take the estate, real or personal, in the same way and manner such devisee would have taken had he survived the testator.”

The supreme court of Rhode Island, in Moore v. Diamond, 5 R. I. 128, held “that in the case of a devise to a class, one member of which died before the testator, the statute vested his interest in his lineal descendants in the same manner as if he had survived the testator and then died.”

The Massachusetts statute provides

“that when a devise of real or personal estate is made to any child or other relation of a testator, and the devisee shall die before the testator, leaving issue surviving the testator, such issue shall take the estate so devised in the same manner as the devisee would have done if he had survived the testator.”

In Moore v. Weaver, 16 Gray 305, the supreme court of Massachusetts adopted the construction which had been given to the same devise by the Rhode Island court, in Moore v. Diamond, supra. This construction was reaffirmed, without discussion, In re Stockbridge, 145 Mass. 517.

The Michigan statute is like that of Massachusetts, and has received a similar construction. Strong v. Smith, 84 Mich. 567.

The Maine statute provides

“that when a relative of a testator, having a devise of real or personal property, dies before the testator, leaving lineal descendants, they take such estate as would have been taken by such deceased relative if he had survived.”

The supreme court of Maine, in Moses v. Allen, 81 Me. 268, seems to have held that the lineal descendant of a member of a class, who died even before the execution of the will, took.

The Missouri statute provides

“that when an estate shall be devised to any child, grandchild or other relative of a testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have taken in case he had survived the testator.”

It was held, in the case of Jamison's Executors v. Hay, 46 Mo. 546, that the statute contemplated that if a part of the members of a class were dead and part living, the children of those dead shall take the place of the deceased parent.

The statute of Ohio provides

“that where the devisee shall be dead at the time of the making of the will or shall die thereafter leaving issue surviving him, such issue shall take the estate devised in the same manner as the devisee would have done if he had survived the testator,” &c.

Similar construction was given to the statute in Woolley v. Paxson, 46 Ohio St. 307.

It is to be observed of the statutes thus far construed that neither expressly nor by implication is their purpose stated to be the prevention of a lapse. In respect to those statutes in which such purpose appears, the weight of authority is that they are inoperative where the bequest or devise is to a class, except in the event of the death-of all the members of the class; in which event only can there be a lapse. There is one case holding otherwise (Yeates v. Gill, 9 B. Mon. 203), decided in 1848, construing the then recent Kentucky statute of 1839.

It is to be observed that the legislature of Kentucky has since passed a statute extending the operation of the act expressly to gifts and devises to a class.

The English act passed in 1837 (1 Vict. c. 26) provides

“that where any person being a child or other issue of a testator, to whom any real or personal estate shall be devised or bequeathed, or any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect, as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.”

This act, although passed thirteen years later than the New Jersey statute, contains the essential features of our statute, and is identical in phraseology, so far as it bears upon the point in question.

In Olney v. Bates, 3 Drew. 319, there was a gift to a class. The question was whether the children of Mrs. Foster, a member of the class who died before the testator, took. Vice-Chancellor Kindersley said: “The effect of the devise is to- go to the children living at testator’s death, and therefore there was no gift to Mrs. Foster, and the statute only applies to' the representatives of the, children or 'issue to whom something is given. Further, it apqoears to me that the intention of the legislature was to provide •against a lapse, merely not to alter the construction which is to be put on any will. When you arrive at the conclusion that there would have been a lapse, then the statutes applies—not otherwise.”

In Brown v. Hammond, Johns. Ch. 210, the same question arose before Vice-Chancellor Wood, who, alluding to the case of Olney v. Bates and the decision of Vice-Chancellor Kindersley in that case, said: “The main question, whether the thirty-third section of the old Wills act applies to a gift to testator’s children as a class, arose there, as it does here. The vice-chancellor held that it does not, and I concur with him in. that view of the act.” He further said: 1 “The rule of construction, to which I have already referred, was perfectly well established in all the courts when the act was passed. According to that rule, under a gift to children as a class, the share to which a child, surviving a testator, would have been entitled does not lapse in consequence of his death in testator’s lifetime. Had the legislature intended to suspend that rule, so as to bring all such cases within the operation of the thirty-third section, it would have expressed that intention.” The same vice-chancellor, in the case of Stewart v. Jones, reaffirmed the same rule, and on appeal his decision was affirmed by Lord Chelmsford. Stewart v. Jones, 3 De G. & J. 532.

In re Potter's Trust, L. R. 8 Eq. 52, there was a gift to a class, in equal shares, as tenants in common, and not as joint tenants, with a substitutionary clause in case of the death of any member of the class. Vice-Chancellor Mallon said: “If the testator had stopped at the words ‘tenants in common,’ the gift could only have operated as to the children who survived the testator. No one of the class who died in the lifetime of testator could have been the object of his bounty.” He held that while the children of a deceased member of the class took its parent’s share, they did so by force of the substitutionary clause.

Since the enactment of the statute of 1837 devises and gifts to children of the testator as a class have been repeatedly construed as unaffected by the provisions of the act. Shaw v. McMahon, 4 Dru. & War. 431 (1843); In re Stansfield, L. R. 15 Ch. Div. 84; In re Jeaffreson’s Trusts, 2 Eq. Cas. 276.

The statute of Georgia also provides “that a legacy shall not lapse.” 2 Code 1895 § 3330. In Tolbert v. Burns, 82 Ga. 213, it was held that this section was not applicable to a devise to nephews and nieces as a class.

In Pennsylvania the act of 1844 (P. L. of 1844 p. 565) is in language substantially like ours, providing that the legacy, under the conditions named, shall be deemed not to pass or become void.

It was held, in Gross’ Estate, 10 Barr 860, that this act did not prevent a vested legacy from lapsing by death, where the gift was to a class, and therefore the legacy would not vest at all until the death of the testator. This is the law of Pennsylvania in respect to gifts to collaterals. A distinction was drawn between gifts to lineals and gifts to collaterals in the case of Bradley’s Estate, 166 Pa. St. 300.

In New York the question now mooted seems to remain undecided. In Van Beuren v. Dash, 30 N. Y. 393, the question arose whether the words “other descendant of the testator” in the New York statute designed to prevent lapses, embraced collateral relatives of the testator.

It was held that they did not. Chief-Justice Denio observed: “This is a statute in derogation of the common law, and its •operation ought not to b'e enlarged beyond the fair natural meaning of the language.”

The cases above cited present fully, I think, a history of the judicial construction of similar statutes-in other jurisdictions.

In respect to our statute, it seems strange that the act which provides for representation in case of the death of a lineal legatee or devisee dying before the testator—which act has been the law of this state for three-quarters of a century—should not have been judicially construed in respect to the point now mooted. It is observable, however, that similar acts elsewhere stood for a long period before an occasion arose for their exposition, and some have never been the subject of judicial remark. This has, I think, been the result of the infrequency of gifts to classes of lineals.

/The natural force of the language employed in the act is that the provision is intended to be operative in case of a gift or devise to the persons mentioned, when formerly, on the occurrence of the death of a legatee or devisee, it lapsed. The legal significance of the word “lapse,” as predicated of devises and legacies, was entirely settled when this statute was passed.

It was as well settled that there could be no lapse in the case of a gift or devise to a class if any member of the class was alive at the date when the membership were determinable.

Reading the statute in the light of the established legal rules, it is manifest that its force must be confined to such legacies or gifts as would otherwise fail to reach their object by reason of the death of the legatee.

A gift to a class does not fail to reach its object by the death of less than all the members of the class, for the gift is to those living at the time fixed by law or designated by the testator.

No doubt the desire to preserve to the children of the deceased child their parent’s share is calculated to induce a more liberal construction of the statute than that indicated.

Certainty and safety in statutory construction, in my judgment, require that the force of the statutory provision shall be restricted to the prevention of lapses. The construction given to the similar statute by the English courts seems to me to be natural and logical. An extension of the operation of the act so as to include gifts to classes would be legislation, and not construction.

Those children of Diademma Doughty who survived the testator take the entire gift to her children.


author: Reed, Y. C.

text:
    Atlantic City v. Atlantic City Steel Pier Company.
    [Filed July 10th, 1901.]
    Upon the facts shown in this case—Held, that the easement deed made to complainant of the rights in question was not an escrow, but was absolutely delivered, and defendant was estopped from denying its efficiency.

      Messrs. Godfrey & Godfrey, for the complainant.

      Mr. Allen B. Endicott, for the defendant.
   Reed, Y. C.

This suit is brought to restrain the defendant from selling commodities on its pier and from charging a fee for witnessing-musical and other entertainments upon the pier other than a fee charged for entrance to the pier.

The city rests its case upon an easement deed made to it by the predecessor in title of the defendant.

In 1889 (P. L. of 1889 p. 206) an act was passed empowering cities located on or near the ocean embracing within their limits or jurisdiction any beach or ocean front, to lay out and open streets and driveways and to construct public walks along and upon the beach or ocean front and to grade and otherwise improve the same and to regulate the use thereof.

By a supplement to this act (P. L. of 1890 p. 159) it was provided that any walk constructed upon any such street so laid out should be elevated above the surface of the ground and be constructed on piling or other supports placed in the street; and when such elevated walk should be constructed, the city could permit approaches to be made to connect with it from contiguous property on the landward side or side most remote from the ocean. By this act the city was authorized to accept any dedication of lands or rights which might be made for the purpose of enabling such city to open and lay out such street or for the purpose of constructing any such walk, or for the purpose •of making any improvement in or to the same.

By another supplement (P. L. of 1896 p. 18) the common •council of any such city was authorized to relocate, in whole or in part, any public walk or walks which may have been, or may thereafter be, constructed or built.

George W. Jackson, by two deeds from John E. Starr, one made on September 4th, 1884, and the other February 5th, 1894, got a-title to a strip of land one hundred and fifty feet in width ■on the west side of Yirginia avenue, running from a point distant •one thousand two hundred and fifty feet from the centre line of Pacific avenue to the high-water line of the Atlantic ocean.

On April 30th, 1896, George W. Jackson, with many other beach owners, entered into an agreement with Atlantic City. By this agreement they dedicated to Atlantic City a right of way ■over their respective lands sixty feet in width. In the agreement the grantors covenanted as follows:

“We will not put or erect, or allow to be placed or erected, on the land hereby granted, or on the ocean side thereof, any .building or structure except as by ordinance provided, and covenant that the above covenant shall run with the land; provided, that the grantors shall not be prohibited from building a pier in front of their property, and connecting the same to the new boardwalk about to be erected; and upen the further condition that the said pier shall be at least one thousand feet in length, extending into the ocean beyond the present sixty-foot strip, and constructed of iron or steel, and shall not permit the sale of any commodities upon the same, and be confined to the charging only an entrance fee.”

The sixty-foot strip so dedicated by Jackson ran over this one hundred and fifty-foot lot conveyed to him by Mr. Starr. It was located above high-water mark. On October 7th, 1897, Jackson procured from the State of New Jersey the right to the land under water in front of his riparian property. On October 20th, 1897, Jackson conveyed the land which he had bought from Starr to the Atlantic City Steel Pier Company, and on January 4th, 1898, conveyed to the same company his riparian title.

The Atlantic City Steel Pier Company subsequently built a pier upon this property and attached the same to the boardwalk. To this pier the company has been accustomed to charge an entrance fee of ten cents. In addition it has charged for entrance to an enclosed hall upon the oceanward end of the pier where Innes’ band played, an additional fee of ten, twenty-five- or fifty cents. Additional fees were charged for reserved seats in another building where cake-walks and similar entertainments were held. It is insisted that these charges, other than the entrance fee, were made in violation of the covenants already displayed.

The main question is whether, assuming that the agreement is valid, the defendant has violated its terms by its charge of an entrance fee into the band-hall, and by its charge for reserved seats in certain portions of the amusement hall where the cakewalks occurred.

I am constrained to the conclusion that these charges are in violation of the terms of the agreement.

Eeading the entire clause, not merely that part directed against, the sale of commodities, but including the limitation in respect to what should be charged, the natural construction’ of the agreement seems to me to be that any additional charge for admission to any part of the pier, after the payment of the entrance fee,, conflicts with the restriction which the grantors imposed upon themselves, namely, that they should be confined to charging-only an entrance fee.

It seems too obvious for discussion, that the fees charged after the visitor has entered upon the pier are not entrance fees. If not, then the purpose of the agreement, as well as its literal words, forbid this collection.

It is said on the part of the defendant that the covenant contained in the proviso is an enabling and not a restrictive-covenant. It is, however, perceived that the agreement itself contains a clear restriction against placing any obstruction upon the ocean side of the boardwalk. The proviso merely modifies the restriction by relieving the grantor from it, so far as to-permit the building of a pier, of a certain length upon which .certain things shall be done. The restriction is operative, except in so far as the proviso relieves it of its operative force. The grantor, therefore, must show that its structure, in form and in use, comes within the exceptive words of the proviso.

It is again insisted by the counsel for defendant that the agreement is unenforceable, because it is ultra vires. This insistence is grounded upon the terms of the supplement of 1890, by which the city is authorized to accept any dedication for the purpose of enabling the city to open and lay out a street and build and improve a boardwalk. It is argued that while a dedication of the land upon which a boardwalk is to be built is within the power so granted to the city, an agreement in respect to other lands is entirely aside from the provisions of the act. The language of the act is broad. It does not confine the city to the acceptance of land upon which the walk is to be constructed. It may accept any land or rights for the purpose of making any improvement in or to the street or walk. But assume that the act is as narrow as the defendant insists, it cannot be successfully contended that Atlantic City, as trustee for the public, would not have the right to accept a dedication of lands for a publid purpose without express legislative authority. Such a grant is effectual even without trustees. All the land oceanward of the boardwalk could have been dedicated by its owners as a park or boulevard, or public bathing ground, or for any other purpose. Now the agreement, as I construe it, contains a grant to the public of a right in the nature of an easement. It, indirectly by a negative covenant, grants a right of light, air and view over and across the ocean-ward land from the boardwalk. This right is limited by a reservation to the donors of the privilege of ]olacing thereon a certain kind of structure. And the uses to which those structures shall be confined is defined, for the purpose of regulating the kind of structure and the number of structures which could be, and would likely be, erected. The owners have themselves limited the uses to which such structures may be put. Such a restricted grant, in my judgment, the city may accept, and, as the representative and trustee of the public, may invoke the judicial arm of the government to protect.

It is again urged that the defendant took title from Jackson without notice of the restriction which Jackson had put upon the property by his dedication deed.

If the agreement, as recorded, was not constructive notice, it appears that Jackson himself was one of the organizers and principal stockholder, a director and treasurer, of the defendant company. It is absurd, under these conditions, to say that the defendant had not notice of the restriction; and it is upon the ground of notice that equity enforced these restrictive covenants against the grantee of the covenantor.

It is argued that the covenant imposed a burden upon Jackson’s land which is illegal, and which, if legal, does not burden the land in the hands of Jackson’s grantee.

The ease of Brewer v. Marshall, 3 C. E. Gr. 337; S. C. on appeal, 4 C. E. Gr. 537, is invoked in support of this proposition.

In that case one who sold one piece of land bargained with his vendee that he, the grantor, would not sell any marl from his adjoining property. This covenant was held illegal because in restraint of trade; and it was held that even if legal and binding personally upon the grantor, one that would not run with the land into the hands of a purchaser, although such purchaser took title with notice of the covenant.

The covenant in the present case is, as already remarked, practically to secure an easement, and easements may be imposed upon the land by its owner and the burden of such imposition will run with the land.

Then, again, this covenant is one of many similar covenants entered into by a body of covenantors as part of a common scheme for the mutual advantage of each and all such covenantors. This feature, in my judgment, brings it within the exceptional class of cases discussed by Chief-Justice Beasley in Brewer v. Marshall.

It is again insisted that the restriction does not affect that part of the pier which is erected upon the land included in the riparian grant. In support of this contention, testimony was introcluced to show that Jackson, when he took the riparian title, did so as trustee for the pier company, and conveyed the same to the said pier company on January 4th, 1898, without consideration.

I do not perceive how this fact, even if the deed should be so reformed as to make Jackson a grantee in trust, would change the liabilities of the defendant.

The riparian license was but an incident of the ownership of the ripa. The covenant itself exhibited plainly that the acquisition of the state’s license to wharf out beyond high-water mark was within the contemplation of the parties.at the time of its execution. No pier one thousand feet in length from the boardwalk could be erected unless by the state’s permission.

But again, the covenant not merely prohibits the placing of buildings upon the remaining land of the grantor, oceanward of the boardwalk, but provides that he will not erect, or allow to be erected, any building on the land granted or on the ocean side thereof—that is, anywhere oceanward, of the sixty-foot strip. When the license was obtained by the owner of the ripa—and it was obtainable only because he was such owner—the right was taken, in my judgment, subject to these restrictions.

But suppose that the right acquired from the state was free from the operation of the. covenant ? Jackson admittedly owned land between the boardwalk and ordinary high-water mark. Upon that land a portion of the pier connected with the boardwalk is built. He had no right to build that portion of the pier unless it was part of a structure one thousand feet long, upon which no commodities should be sold and to which an entrance fee only should lie charged. Therefore, the existence of that part of the pier standing upon land above ordinary high-water mark is a violation of the covenant, because the grantor has not conformed to the requirements of the proviso.

The point is also taken by the defendant that there is incorporated in the dedication deeds a covenant or condition for the benefit of the dedicators, which is ultra vires and so beyond the power of the city to execute. The first of these is as follows:

“Whenever, because of the formation of land by accretion, the high-water- line shall not be less than three hundred feet oceanward from the present location, the city council shall, upon the written request of the grantors owning not less than three contiguous squares of land, who shall have the right of way-for such purpose, cause the same to be moved ocean-ward said three hundred feet or any less distance that such owners and city council may agree upon.”

The act of 1896, page 18, section 2, invests the common council with power to relocate, in whole or in part, a public walk or walks which may have been constructed and built or may hereafter be constructed and built,' &c.

Section 3 provides for the reconveyance of any land theretofore dedicated, upon the owners dedicating a new right of way. Aside from the fact that there has been no breach of this covenant, it appears that by the legislation of 1896, plenary power is conferred upon the city council to make the required change of location in accordance with the covenant.

There is also a covenant in the deed of dedication that the city council shall not grant a right of way to any railway company or street railway company over and along the same. What the word “same” refers to is indefinite, but presumably it refers to the right of way. This covenant is also said to be a nullity, but •it seems to be a limitation of the dedicatory purpose entirely legitimate.

Again, the defence is interposed that it was represented to Mr. Jackson as an inducement for his execution of the dedicatory deed, that the deeds from all the other owners along the walk were to be obtained and that unless they were obtained, this deed would be a nullity.

Jackson says that some two weeks previous to his signing the deed, Judge Endicott and Judge Thompson came to see him and read over the easement deed. He says that he then refused to sign the same unless a clause was inserted permitting him to build a pier. Two or - three weeks afterwards, he says, Judge Endicott came again and had the article about the pier inserted in the deed, and then he, Jackson, signed it. At that time, he says, Judge Endicott said to him, “we are getting everyone to sign this easement deed.” That he, Jackson, replied, “If you don’t get everyone to sign the easement deeds then I won’t sign,” and Judge Endicott replied, “If we don’t get everyone to sign it, then it would not be worth anything.”

Now it appears, as a fact, that two or three out of the numerous beach owners have failed to make similar deeds. The defence, it is perceived, rests not upon any condition inserted in the deed, but upon a verbal statement alleged to have been made previous to their execution.

There is no insistence that any representation was fraudulently made as an inducement and there is nothing in the pleadings or testimony to support such a defence. The defence raised, if it has any substance, must stand upon the notion that the delivery of the deed to Judge Endicott was in escrow. Now, if Judge Endicott was the agent of the grantee, the deed was absolutely delivered.

Again, the conversation between Judge Endicott and Mr. Jackson, as detailed, seems to raise merely an expectation or promise that something in the future would be done. This is not a delivery in escrow. Ordinary v. Thatcher, 12 Vr. 403. That words of the kind stated were employed is, I think, entirely probable. I have no doubt there was a general understanding that the scheme required deeds from all the beach owners along the right of way. The ground-work of the scheme was a common surrender by such owners of a certain degree of control over their own property in consideration of the benefit that would accrue to them from similar conduct on the part of the other owners. If the complainant had attempted to hold the defendant to its covenant, while all or most of the beach owners refused to make similar deeds, it would have presented a case of hardship in the highest degree inequitable. But in this instance the scheme is substantially executed. Out of the very numerous beach owners, as already remarked, two or three only have not yet made their deeds. These owners, so far as appears, are not in the vicinity of the land of the defendant. The defendant has been silent while all the improvements have been made. It knew that the city was building upon the land in question by reason of the license which they had given in the deed. Under any aspect in which the facts can be viewed, it is now too late for the defendant to say that there was no delivery of its deed of dedication to the city.

I will advise a decree for the complainant.


text:
    Atlantic City v. Young & McShea Amusement Company.
   All the points raised by the defendant in this case were considered in the case of Atlantic City v. Atlantic City Steel Pier Company, both cases being tried together by consent.

I will advise a decree for the complainant.


author: Reed, V. C.

text:
    The Centaur Company v. C. W. Link et al.
    [Filed July 15th, 1901.]
    1. A defendant will be enjoined from using a label on bottles of a proprietary medicine put upon the market by it (though the patent has expired), which is so similar to another label on bottles of the same medi-cine longer on the market as to deceive purchasers.
    2. The label must indicate plainly that the thing which it designates is ■manufactured by someone other than the original manufacturer.
    This bill is filed to enjoin the defendant from manufacturing '“Castoria” and selling it wrapped in bottles labeled so similar do those of the complainant’s as to injure the complainant and ■deceive the public.

      Mr. John W. Wescoti, and Mr. Edmund Wetmore (of the New York bar), for the complainant.

      Mr. Rudolph Robe, for Charles W. Link et al.

      Mr. Walter II. Bacon, for the Cumberland Glass Manufacturing Company.
   Reed, V. C.

Eor thirty-five years the complainant has manufactured a remedy known as “Castoria.” It has spent more than one hundred thousand dollars a year in advertising the remedy under the name of “Castoria.” Castoria was made, or purported to be made, from a formula of Dr. Pitcher and was known as “Pitcher’s Castoria.” Dr. Pitcher had patened the formula for its composition. The patent has expired.

The complainant owned the patent and manufactured Castoria under its protection. Since the expiration of the patent, the defendant the C. W. Link Drug Company has put upon the market a remedy under the name of “Castoria,” in wrapped bottles in appearance and size bearing a resemblance to the wrapped bottles. used by the complainant before and since the expiration of the patent.

It is to enjoin this conduct of the Link company that this bill is filed.

It was ruled in the case of Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169, that when the monopoly upon a patented device expired, and its use became public property, then the use of any name which had been employed to designate the device also became public property. The-reasons for the adoption of this rule are stated in the opinion in that case and need not here be restated. It is sufficient to say that this doctrine is entirely established.

After an exhaustive examination of the authorities, Mr. Justice White, in the Singer Case, states the English, French and American doctrine in the following language: “Where, during the life of a monopoly created by a patent, a name, whether it be arbitrary or be that of the inventor, has become, by his consent, either express or tacit, the identifying and generic name of the thing patented, this name passes to the public with the cessation of the monopoly which the patent created.”

It was therefore held that the word “Singer,” under which name the Singer company had manufactured and designated the sewing machine manufactured by them under the protection of several patents, upon the expiration of the patents, became public property. Following this case it was held, in the ease of Centaur Co. v. Heinsfurter, 84 Fed. Rep. 955, that, after the expiration of the patent granted to Dr. Pitcher, the right to manufacture and sell his medicine under the name of “Castoria” became public.

The right of anyone, other than the owner and manufacturer under the patent, to use the name of “Castoria” is not, however, unfettered.

It must be used so as to indicate that the thing which it designates is manufactured by someone other than the original manufacturer.

Mr. Justice White states this restriction in his opinion in the Singer Case.

He says: “Where another avails himself of this dedication to make the machine and use the generic dedication, he can do so in all forms, with the fullest liberty, by affixing such name to the machines, by referring to it in advertisements, and by other means, subject, however, to the condition that the name must be so used as not to deprive others of their rights or to deceive the public, and therefore that the name must be accompanied with such indications that the thing manufactured is the work of the one making it as will unmistakably inform the public of that fact.”

The question is, whether the defendant, in selling its goods under the name of “Castoria,” has conformed to the condition mentioned.

After the expiration of the patents taken out by Dr. Pitcher, a swarm of manufacturers put upon the market goods under the name of “Castoria.” The lavish advertisements of the remedy under that name, coupled, possibly, with its remedial merits, opened an extensive market for its sale. Eor years it had been bought simply as “Castoria.” It was made by one firm, and that name upon the bottle was a guaranty to purchasers that 'they were getting a well-known remedy made by this one firm, namely, the Centaur Manufacturing Company.

A purchaser, seeing the name of “Castoria” printed in letters of the same size and color, upon a bottle of the same size and form, with a similar wrapper, would not critically examine nor be impressed with a slight difference in other respects.

The compound of the Link drug company is put up in two-ounce paneled bottles, so nearly similar in size and appearance with those of complainant’s as to present no substantial difference. The word “Castoria” is printed in similar and conspicuous type, the only difference being in the first and last letters—a difference not calculated to attract attention—and in the fact that the name upon complainant’s bottle is slightly curved, and in the defendant’s bottle straight—this also being a difference which would not arouse the attention of an unsuspecting purchaser. Upon both is the formula of Dr. Pitcher. Over the complainant’s formula are the words “Receipt of old Dr. Pitcher,” in small type, and. over the formula of the Link drug company bottles “Formula of old Dr. Pitcher,” in large letters. The remainder of the printed matter differs in form and somewhat in substance, and upon defendant’s label is the picture of a beehive, with the word “trade” upon one side of it and “mark” upon the other. On the bottom of the complainant’s label is the name of “Charles Ii. Fletcher,” in small letters. Upon the label of the Link company, in large letters, are the words “C. W. Link Drug Co.” The label of the. complainant is made of slightly-tinted white paper, and that of the Link drug company of white paper; but, unless placed- together, the difference in color is not perceptible.

There are several reported cases in which this complainant has secured an injunction against manufacturers of a remedy put upon the market under the -name of “Castoria.”

In Centaur Co. v. Neathery, 91 Fed. Rep. 891, the defendant used bottles and labels which .only differed from those of the complainant in the name of the manufacturer. The circuit court of appeals for the Fifth district reversed the order of the circuit court refusing an injunction, and remanded the case, with instruction to grant a preliminary injunction restraining the defendant from selling any preparation in or under any package or label containing any word or combination of words calculated to create confusion in the mind of the public with the labels and designs used by the complainant.

A similar result was reached by the same court in the case of Centaur Co. v. Hughes Brothers Manufacturing Co., 91 Fed. Rep. 901, in which case the labels employed by the defendant and complainant differed more than in the preceding case, bnt were generally similar.

In Centaur Co, v. Killenberger, 87 Fed. Rep. 725, Judge Kirkpatrick, of the New Jersey district court, enjoined a defendant from using a label because it had a tendency to deceive, and was designed to deceive. In delivering judgment, the court remarked: “While it is true that, upon actual comparison of the wrappers side by side, substantial differences will be found, and that no one with knowledge would, after such examination, be deceived, still it will be perceived at once, upon a mere inspection of the packages, that' they are so much alike in general comparison- that the one is apt to be mistaken for the other, and that a close inspection is necessary to distinguish them.” This conclusion of Judge Kirkpatrick was approved in the case of Centaur Co. v. Neathery, supra.

An injunction was also decreed by Judge Baker, sitting in the circuit court for the district of Indiana, in the case of Centaur Manufacturing Co. v. Robinson, 91 Fed. Rep. 889.

In speaking of the duty of a manufacturer who puts upon the market a well-known remedy, the court remarked: “Where an article that costs but a few cents is offered upon the market,' it is a matter of common knowledge that an intended: purchaser pays little or no attention to it. He sees the name “Castoria,” and whether it is the Castoria of the complainant or that of- the defendant is a question which does not, by reason of the small value of the purchase, engage his attention. Unless there is some such marked dissimilarity as that, being acquainted with the complainant’s form of putting up its Castoria, it would at once arouse his suspicion, the intended purchaser would be read-, ily deceived into making a purchase of .an article that he really did not intend to buy.”

In the present case, notwithstanding the difference in the printed matter on the labels, I am unable to resist the conclusion that the size and shape of the bottles and the color and form of the label were selected by the defendant for the purpose of leading some purchasers to take its compound under the supposition that they were getting what they had always got, namely, the medicine made by the complainant.

A purchaser whose attention had been called to the fact that there was a number of preparations being sold under the name of “Castoria,” and that “Fletcher” was the old one, would probably not be deceived by the general appearance of the Link company’s bottle and wrapper. A purchaser, however, who was not aware of the fact that preparations of other manufacturers were upon the market, under the same name, the general appearance of the bottle and wrapper was undoubtedly calculated to mislead to the belief that he was getting the old Castoria.

I am convinced that few persons, however long they may have used a proprietary medicine, have examined the bottles so carefully as to be able to recall'much of the printed matters upon them. Their familiarity with the bottles and wrappers is limited to their size and general appearance, and, possibly, to the words most strikingly displayed.

The use of bottles of the same size and shape and of labels of the same form and color, and of the word “Castoria” printed in letters substantially the same in size and shape, was calculated to mislead a purchaser into the belief that he was getting the Castoria which had, year after year, been in the market in similar packages. Every one of the numerous packages of other manufacturers, put in evidence by the defendant, show a persistent adoption of the size of the bottle and the label of the complainant. All these manufacturers knew, just as the defendant knew, that if the remedy was put up in round bottles, or in bottles distinctively larger or smaller, or if the bottles were so differently wrapped as to at once arrest the attention of the casual purchaser, the sale of the remedy in such packages would at once become substantially reduced. The differences introduced by the defendant were such as it was thought would be sufficient to evade an injunction, while not sufficient to arrest the attention of the majority of the purchasers.

In my judgment it was the duty of the defendant to make it clear to the purchaser that the remedy manufactured by it was not the remedy manufactured by the complainant under the name i of “Castoria.” This it did not do. There should be an injunction against it.

In addition to the injunction asked for against the manufacturer and vendors there is also asked a writ against the Cumberland Glass Manufacturing Company for making the bottles for the vendors of the remedy.

I do not think, under the evidence, an injunction should go against this company.


text:
    Charles Kloman v. Lurenah C. Kloman.
    [Filed July 13th, 1901.]
    1. A divorce will not be granted on the uncorroborated confessions of adultery by the defendant, though such confessions are non-collusive.
    2. The statements of the alleged paramour are not evidence.
    On bill for divorce.

      Messrs. McEwan & McEwan, for the complainant, ex parte.

   Reed, Y. C.

The charge is adultery committed by the defendant with one TJmberto Yerdesi, an Italian, in the city of Rome and in the city of Milan, Italy.

The proof is confined to confessions made by the defendant and by Yerdesi.

The statements of the latter are not evidence. Berckmans v. Berckmans, 1 C. E. Gr. 122; Graham v. Graham, 5 Dick. Ch. Rep. 701.

The confessions of the wife were contained in letters written to her friend, Hiss Ruth Ray, which letters were taken by the complainant from the desk of Miss Ray without, as complainant says, the knowledge of Miss Ray. It is said that the defendant also confessed in letters to her husband in reply to his letter, written to her after the Ray letters had come into his possession. Miss Ray also says that defendant verbally confessed to her that she loved and had been intimate with Verdesi in his rooms in Rome. This confession was made while the defendant was in this country, to which she had returned in July, 1899. Defendant had been abroad with her daughter, who was put to school there. In the latter part of August, of this year, she again went abroad —complainant says against his wishes.

Two letters, one undated and the other dated September 25th, 1899, were written by the defendant to Miss Ray soon after her return to Europe. They contain a confession of adultery with Yerdesi.

The two letters to her husband, by their reference to the letters to Miss Ray, admit the truth of the statements made by her in the last-mentioned letters.

The confessions are presented in a very convincing shape.

The question is whether, upon them alone, a decree can be advised for the complainant.

In Clutch v. Clutch, Sax. 474 Chancellor Vroom refused to make a decree upon proof of the admission of the defendant that he had contracted the venereal disease. The learned and accurate chancellor remarked that confessions are never held sufficient without strong corroborating circumstances.

In Miller v. Miller, 1 Gr. Ch. 139, the defending wife had admitted her adultery. Chancellor Pennington thought that the confession was made through fear of her husband. He remarked of these admissions, “they are competent when connected with other proof.”

In Jones v. Jones, 2 C. E. Gr. 351, Chief-Justice Beasley, sitting as master while advising a decree for the complainant, said: “The approved rule of law appears to be that a divorce will not be granted when the admissions of the criminal party constitute the entire basis upon which to rest the conclusion of guilt. Such evidence, it is said, may convince to a moral certainty but does not fill the measure of legal proof.” The evidence in that case, aside from the defendant’s admissions, was that he visited houses of ill-fame on occasions, and under circumstances, entirely irreconcilable with any but a vicious purpose.

In Derby v. Derby, 6 C. E. Gr. 36, Chancellor Zabriskie said: “It is not usual to grant a divorce on a charge of adultery sustained by the confession of the defendant alone,” citing in support of this statement Miller v. Miller, supra. The words “not usual” would imply that there might be exceptional instances where a divorce could be granted solely upon the admission of the defendant. The case of Miller v. Miller, however, refutes this notion. In that case the rule announced by Chancellor Kent in Betts v. Betts, 1 Johns. Ch. 198, was adopted. This rule was that the party’s confession may aid other proof, but the decree must not rest alone nor, perhaps essentially, on such confession.

The question now mooted seems never to have been passed upon by the court of appeals, for in Summerbell v. Summerbell, 10 Stew. Eq. 603, the confession itself was discarded,, or regarded as so weakened by the circumstances as to render it unreliable as evidence.

That there must be evidence in aid of the confession is a rule entirely settled. But the character of such evidence is said, by Mr. Bishop, to be not settled in England nor in this country.

He says there is a contrariet}^ of view as to whether such evidence must be in proof of the act charged, or need only be evidence showing freedom of the confessing party from coercive influences or collusive intentions.

Mr. Bishop says that the latter is implied in some of the English cases and is so adjudged in some of the American cases. 2 Bish. Mar. & D. §§ 244, 245.

The analysis of the leading cases in England upon this branch of evidence in divorce cases, contained in the opinion of the learned master in the case of Summerbell v. Summerbell, supra, seems to exhibit the weakness of the implication stated by Mr. Bishop. He shows that in Williams v. Williams, 1 Hagg. Cons. 299; Mortimer v. Mortimer, 2 Hagg. Cons. 310; Harris v. Harris, 2 Hagg. Cons. 148; Burgess v. Burgess, 2 Hagg. Cons. 223; Noverre v. Noverre, 1 Rob. 428; Owen v. Owen, 4 Hagg. Cons. 261; Grant v. Grant, 2 Curteis 16; Tucker v. Tucker, 11 Jur. 893; Deane v. Deane, 12 Jur. 63; Shuldham’s Divorce, 12 Cl. & F. 363, there were facts which tended to prove the truth of the act charged.

In Shuldham’s Divorce, supra, a letter from a wife to a husband confessing adultery was held not to be sufficient evidence of adultery.

The master summed up his examination of the case by saying: “It is clear, therefore, that up to the time of the institution of the matrimonial court no divorce was in fact granted in England solely upon the unsupported confession of the criminated party, adjudged by the court to have been made without collusion.”

He also remarked that the only case in this country in which a divorce has been granted solely on a non-collusive confession is Billings v. Billings, 11 Pick. 461.

Whatever may have been the views taken elsewhere there can be no doubt of the sentiment which has always obtained in this court. Mr. Bishop, in his note to the section in which he states that, with us, it has been adjudged that evidence of the non-collusive character of a confession will entitle it to a credit sufficient to support a decree, puts the case of Clutch v. Clutch, Sax. 474, in opposition to this doctrine. The language employed in Betts v. Betts, supra, adopted in Miller v. Miller, supra, and in Jones v. Jones, supra, taken in connection with the facts in these cases, leaves no room for doubt that the meaning was that the corroborating evidence must be in respect of the act charged.

As the present case rests solely upon the admissions of the defendant the bill must be dismissed, unless corroborating facts can be supplied.