text:
    CHARLES PATTON, PLAINTIFF-RESPONDENT, v. THE TEXAS COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951
    Decided April 4, 1951.

      Before Judges Mo Gee han, Jayne and Wii. J. Brennan, Jr.

      Mr. Samuel A. Lamer argued the cause for plaintiff-respondent (Messrs. Budd <& Lamer, attorneys).

      Mr. Joseph Goull argued the cause, for defendant-appellant {Messrs. Gault cfi Salz, attorneys).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Plaintiff was the guest on Christmas night, 1948, in the home of his daughter and son-in-law, a single-family dwelling at 156 Morris Street, Morristown, leased by them from the defendant. As plaintiff was leaving he was hurt when in descending the concrete steps leading to the sidewalk he put his left foot down on. the sixth step from the ground and his foot “gave” and he fell. He brought this action against the defendant landlord in the Law Division. Defendant’s motion for judgment at the close of plaintiff’s proofs was denied and the defendant offered no testimony. The jury returned a verdict in favor of the plaintiff. The defendant landlord appeals from the judgment entered thereon and challenges the denial of its motion for judgment.

The concrete steps were erected in 1938 by defendant’s immediate predecessor in title. The construction was faulty in that the width of the treads of the several steps was less than that called for by standard practice. In the ease of the sixth step the condition was worsened and the tread further narrowed where plaintiff put his foot down because the edge of the tread at that point had crumbled and broken off after the tenants took possession.

The house was one of seven houses purchased by defendant to be torn down and to be replaced with a gasoline service station ; it actually was razed before the trial. The letting was in June 1944, under an oral month to month tenancy. The house was in a state of disrepair at the time—“poor,” “it wasn’t to remain there and so it wasn’t repaired too much.” Defendant refused the tenant’s request before the mishap to repair the sixth step. “They told me that the Texas Company would not spend any more money on the place since they were going to tear it down.”

The trial court erred in denying defendant’s motion for judgment. The plaintiff’s proofs were viewed below as presenting a jury question whether the landlord retained control of the concrete steps at the time of the letting so as to be liable for failing to repair a defect of which it had knowledge or for maintaining a nuisance. Monohan v. Baime, 125 N. J. L. 280 (E. & A. 1940); Dubonowski v. Howard Savings Institution, 124 N. J. L. 368 (E. & A. 1939); Taylor v. Majestic B. & L. Association, 14 N. J. Misc. 699 (Sup. Ct. 1936). The proofs, however, show clearly that the step structure was part of the premises demised. The determinative facts are revealed in the parties’ own statements of the extent of the leasehold. The arrangement, as deposed by plaintiff’s daughter, was that there was leased to her and her husband “the property owned by the Texas Company lenown as 156 Morris Street, Morristown, New Jersey,” “the premises” at that address. A letter dated July 3, 1944, from defendant to the tenant husband acknowledged a like understanding, namely, that the demise was “of the premises ,” “We welcome you as a tenant at the subject address,” “Real Estate: Morristown, N. J., 156 Morris Street.”

The parties plainly contemplated the letting of the entire property, that is, the lot and house, which included the front stops. The house was leased for occupancy as a single-family dwelling. “The property,” “'the premises,” “the subject address” all referred to “156 Morris Street” and were precisely descriptive of the entire premises in accord with common understanding when single-family houses are let. There is no uncertainty such as may appear upon the letting in such terms of a part only of a multi-family dwelling, in which case evidence of repairs by the lessor is admissible to show that the landlord retained control of an approach or stairway giving access to the apartment or flat which was let. Dubonowski v. Howard Savings Institution, supra; Taylor v. Majestic B. & L. Association, supra; but see Schwartz v. Federal Deposit Insurance Corp., 127 N. J. L. 556 (E. & A. 1941).

Part of the evidence deemed by the trial judge to create a fact question as respects retained control by the lessor of the step structure was that after the letting the landlord' made repairs both within and outside the house and on one .occasion to the exterior of the sidewalls of the concrete step structure. There is no contention that the lessor contracted to make the repairs. They were made upon the request of the tenants, but the landlord acknowledged no obligation to make repairs and in fact made only such as it saw fit to make and refused to make others, as in the case of the refusal of the request to repair the sixth step. Defendant was “privileged” to enter the premises to make repairs, but the proofs negative any notion of a duty by contract in that regard or that the landlord could enter as a matter of right. In that circumstance its failure to make repairs to the sixth step cannot be deemed an act of negligence contributing to plaintiff’s injuries and a proximate cause thereof. Handlon v. Copestone Temple Assn., 106 N. J. L. 363 (E. & A. 1939); Connors v. Newton, 77 N. J. L. 135 (Sup. Ct. 1908). The entire property having been demised and the concrete step structure being part of the premises let, proof of the repairs had no significance in the circumstances. See Spinelli v. Golda, 6 N. J. 68 (1950); cf. White v. Ellison Realty Corp., 5 N. J. 228 (1950).

Nor do we perceive any room for an inference that less than the whole property was let in the proofs that defendant after the letting exchanged letters with its real estate manager in which appear “It does have to be kept reasonably safe to live in, however, and that is all we are attempting to do,” and “we must maintain the property so that it is in a safe condition and that there is no possibility of a liability suit.” Those statements in no wise import a demise of less than the whole premises; rather they buttress the proofs evincing the parties’ understanding—“It” plainly refers to the house, “the property” to the premises generally. Whether the statements alone or in light of the other proofs imply an undertaking on the part of the landlord at the time of the letting to make repairs is a question not before us inasmuch as the case was not pleaded nor tried below nor was this appeal argued on the basis of the existence of an agreement -to repair, either as .a ground for the landlord’s alleged liability or as bearing on the issue of retained control.

As the defect was not latent, the landlord is not liable in the circumstances of this case to the tenants’ invitee for injuries suffered on the premises by reason of the defect. Plaintiffs brief argues that the landlord is liable for maintaining a nuisance, the sub-standard tread, which existed on the premises prior to the lease. The landowner’s immunity is no different whether the condition is deemed a nuisance or not. The established general rule in this State is that upon the letting of a house and lot there is no implied warranty or condition that the premises are fit and suitable for the use to which the lessee proposes to devote them and the landlord is therefore under no liability for injuries sustained by the tenant or the tenant’s invitee by reason of the ruinous condition of the demised premises unless there has been fraudulent concealment of a latent defect. LaFreda v. Woodward, 125 N. J. L. 489 (E. & A. 1940); Connors v. Newton, supra; and see the helpful and frequently cited article by Laurence H. Eldredge, 84 University of Pennsylvania Law Review 467 (reprinted in Eldredge, Modern Tort Problems, pp. 113 et seq.) ; Note, 62 Harvard Law Review 669 (1949). The case is not within the recognized exception that a landlord is liable to a person injured by reason of a condition on lands leased for a so-called “public” or “semi-public” purpose and who comes on the land for the particular purpose for which the lands are leased and not as a social visitor or other business visitor of the tenant. Martin v. Asbury Park, 111 N. J. L. 364 (E. & A. 1933); Johnson v. Zemel, 109 N. J. L. 197 (Sup. Ct. 1932); Smith v. Delaware River Amusement Co., 76 N. J. L. 461 (Sup. Ct. 1908); Eckman v. Atlantic, Lodge, 68 N. J. L. 10 (Sup. Ct. 1902); cf. LaFreda v. Woodward, supra; Trondle v. Ward, 129 N. J. L. 179 (E. & A. 1942); Restatement on Torts (1938), sec. 359.

We may add that, even if the plaintiff had tried the case on the theory that his proofs evidenced a breach by the landlord of an agreement to make repairs, it is not yet clear in this State that a landlord who breaches such agreement with his tenant may on that ground be held liable to the tenants’ invitee whose status is that of a third person not in privity of contract or leasehold estate with the landlord. White v. Ellison Realty Corp., supra; Clyne v. Helmes, 61 N. J. L. 358 (Sup. Ct. 1898).

Reversed.


source: Caselaw Access Project

author: Pnorroii, J. S. 0.

license: Public Domain

text:
    IN THE MATTER OF THE PROBATE OF THE ALLEGED LAST WILL AND TESTAMENT OF RAYMOND L. FISHER, DECEASED. RAYMOND L. FISHER, Jr., AND WILLIAM H. FISHER, EXECUTORS NAMED IN THE ALLEGED LAST WILL AND TESTAMENT OF RAYMOND L. FISHER, DECEASED, APPELLANTS, v. FLORA N. FISHER, CAVEATRIX, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950
    Decided April 10, 1951.

      Before Judges Freuud, Proctor and Rogers.

      Mr. Lewis 8. Beers argued the cause for the appellants (Mr. Clarence W. Beers, attorney).

      Mr. John H. Pursel, attorney for and of counsel with eaveatrix-respondent.
   The opinion of the court was delivered by

Pnorroii, J. S. 0.

The decedent, Baymond L. Eisher, Sr., was born in 1890 in Phillipsburg, Warren County, New Jersey and lived there until about 1923, when he moved to Quakertown, Pennsylvania, where he remained until 1933. Beturning then to New Jersey, he purchased and occupied a house in Bloomsbury, Hunterdon County. In September 1948, while living at the Bloomsbury home, he purchased two lots at Park-side, Warren County, adjacent to Phillipsburg, for the purpose of erecting a bungalow thereon at some future time. In July 1949 he married the caveatrix and they continued to reside in the Bloomsbury homo until October 28, 1949, when he sold the house and most of the household goods. With the Bloomsbury house sold, the decedent and his wife looked for a place to live in Phillipsburg but were unsuccessful. They engaged a room in Easton, Pennsylvania, but due to its inadequacy were compelled to move within two days and thereafter rented one room in the home of a friend, Leo Weaver, at 1837 Washington Boulevard, Easton, Pennsylvania. The decedent and Ms wife ate their meals at various restaurants. They continued their search for suitable accommodations in Easton, its suburbs, and in Phillipsburg, but could find nothing satisfactory. Mrs. Eisher, the caveatrix, testified that they never intended the Weaver home to be anything more than a temporary residence.

While living in Easton, the decedent continued the rental of a post office box in Bloomsbury, where he received Ms mail until the time of his death. Ho had renewed the quarterly rental of the box on January 1, 1950. His automobile, which he took with him to Easton, carried New Jersey plates, and he had a New Jersey driver’s license. On February 18, 1950, he renewed his New Jersey automobile registration as well as Ms New Jersey driver’s license for 1950 through the motor vehicle agency at Phillipsburg, New Jersey, and gave as his address 53 Lehigh Avenue, Bloomsbury, Hunterdon County, New Jersey, the home which he had previously sold. While living with Mr. Weaver in Easton, he made application to join a local Bepublican Club as an associate member. It appears that an associate member was entitled only to the social facilities of the club as distinguished from an active membership which was open to registered voters only. Decedent never became an associate member because the application was incomplete and was never acted upon.

While living at the Weaver home, Mr and Mrs. Fisher discussed the construction of a bungalow on the lots at Parkside with a building contractor, but sometime in February 1950 the decedent determined that the construction would be too costly, and he abandoned any further plans. In December 1949 decedent’s mother had died and her home at 272 Mercer Street, Phillipsburg, was being offered for sale by the estate, of which he and his sister were executors. About March 3, 1950, he orally agreed with his sister that he would buy the home for $5,000 and asked her to make an appointment with the attorney for the estate to prepare the necessary, papers. However, the appointment was not kept because the decedent fell ill and died on March 15, 1950.

Decedent’s widow on March 27, 1950, filed a caveat with the Warren County surrogate against admitting any purported will of Raymond L. Fisher, Sr., to probate. Thereafter, the executors named in the will of decedent filed a complaint in the Warren County Court demanding judgment admitting the will to probate. The Warren County Court entered judgment denying probate of the will, stating that the court was "of the opinion that the said Raymond L. Fisher, Sr., at the time of his death, was not domiciled in Warren County, New Jersey, as asserted by the plaintiffs, nor in the Commonwealth of Pennsylvania, as claimed by caveatrix, but that his legal domicile was and continued in the County of Hunterdon, New Jersey.” The judgment also allowed counsel fees to the attorneys for the respective parties to be paid from the estate of decedent.

The plaintiffs appeal upon the ground that the decedent at the time of his death was domiciled in Warren County. The caveatrix cross-appeals and contends that decedent at the time of his death was domiciled in Easton, Pennsylvania.

It is conceded that from 1933 to October, 1919, decedent was domiciled in Bloomsbury, Hunterdon County, New Jersey.

It is well settled that a domicile once established continues until a new domicile is acquired. In re Dorrance, 115 N. J. Eq. 268, 274 (Prerog. 1934); affirmed, 13 N. J. Misc. 168 (Sup. Ct. 1935); affirmed, 116 N. J. L. 362 (E. & A. 1936); Walkinson v. Walkinson, 68 N. J. Eq. 632, 638 (E. & A. 1905); Cadwalader v. Howell, 18 N. J. L. 138, 144 (Sup. Ct. 1840) ; Clark v. Likens, 26 N. J. L. 207, 209 (Sup. Ct. 1857) ; Guggenheim v. Long Branch, 80 N. J. L. 246, 249 (Sup. Ct. 1910). It is also settled that to effect a change in domicile “* * * the residence at the place chosen for the domicile must be actual; to the factum of residence there must be added the animus manendi; * * Harral v. Harral, 39 N. J. Eq. 279, 285 (E. & A. 1884). In other words, in order to acquire a new domicile there must be a union of residence and intention. Residence without intention, or intention without residence, does not effect a change of domicile. See also Rinaldi v. Rinaldi, 94 N. J. Eq. 14, 20 (Ch. 1922); In re Gilbert, 18 N. J. Misc. 540, 548 (Essex Cty. Surr. Ct. 1940).

Applying the foregoing principles to the present case it is clear that decedent’s domicile in Bloomsbury, Hunterdon County, New Jersey, continued until his death on March 15, 1950. After the establishment of his domicile in Bloomsbury a new domicile was not actually acquired animo et facto. In re Dorrance, supra; Watkinson v. Watkinson, supra. When the decedent lived in Easton, Pennsylvania, his intent was not to reside there permanently or indefinitely. Though it appears that he intended to establish' a permanent home in Phillips-burg, Warren County, New Jersey, this intent was never carried out to the point of actual residence.

Plaintiffs argue that, since Warren County was the domicile of decedent’s origin and Hunterdon County his domicile of choice, the domicile of origin reverted the moment the domicile of choice was abandoned. This is the English rule in regard to a change of domicile from one country to another. Udny v. Udny, L. R. 1 Sc. App. 441, 450, 457 (1869). It also appears in several of our cases as dicta which may be epitomized in the following statement in Givernaud v. Variel, 86 N. J. Eq. 80, 86 (Ch. 1916); affirmed, sub nom. Plahn v. Variel, 87 N. J. Eq. 654 (E. & A. 1917) :

“Every man, woman and child has a domicile of origin. He may, however, choose another domicile for himself, but if he abandons his domicile of choice without adopting another domicile in the manner prescribed by lawi then his domicile of origin becomes his domicile.”

Dean Alfred C. Clapp, author of a recognized treatise on probate matters in this State, when Deputy Surrogate of Essex County, criticized the above rule in his opinion in In re Gilbert, supra, at 551, as follows:

“But this rule is most unnatural in America and has nothing in public policy here to recommend it. The weight of authority in this country is contrary, and in accord with the holding here. That the Court of Errors has noted this trend of the law may be taken from its reference in Watkinson v. Watkinson, 68 N. J. Eq. 632 (at p. 638) ; 60 A. 931, to 10 Am. & Eng. Encycl. L. 15. Restatement, Conflict of Laws, § 23, comment (5) ; 1 Beale, Conflict of Laws, § 23.3.”

The rule mentioned in the Givernaud case, if applied as plaintiffs contend, would reach the following result: A, originally from England, is domiciled in Hunterdon County. He abandons his Hunterdon County home to move to Warren County. If he dies on the journey, he dies domiciled in England. Such a holding would be contrary to the well established rule reiterated in In re Dorrance, supra, that there can be no loss of domicile until the acquirement of a new one. See also Desmare v. United States, 93 U. S. 605, 23 L. Ed. 959 (1876); In re Jones’ Estate, 192 Iowa 78, 182 N. W. 227, 16 A. L. R. 1286 (Iowa Sup. Ct. 1921); Note, 40 L. R. A. (N. S.) 986 (1912). In the Restatement, Conflict of Laws, § 23 (b), it is stated:

“If a domicil of choice is abandoned without acquiring a new domicil of choice, the domicil of origin is not be revived but the last domicil of choice continues to be the domicil.”

Moreover, the rule of the revival of the domicile of origin does not apply when the domicile of origin and the domicile of choice, as in the present case, are both within the same state. First National Bank of New Haven v. Balcom, 35 Conn. 351 (1868) ; Succession of Steers, 47 La. Ann. 1551, 18 So. 503 (La. Sup. Ct. 1895). See also Story, Conflict of Laws, p. 40, note a, (8th ed. 1883); Dicey, Conflict of Laws, Domicile, p. 83, (6th ed. 1949); 1 Beale, Conflict of Laws, Domicile § 9.6 (1935). The argument is no stronger merely because the domicile the decedent intended to establish happened to correspond with his domicile of origin. See Hyder v. Hyder, 16 Tenn. App. 64, 66 S. W. 2d 235 (Tenn. Ct. App. 1932).

Where the question of domicile is between counties within the State, the laws of succession and administration of the estate are the same. However, the statutory jurisdiction of the county court cannot be enlarged by that court nor by this court. The statute, R. S. 3 :2-23, expressly limits the jurisdiction of the court to cases where the decedent resided in the county at the time of his death. Eesidence and domicile in this section are synonymous. Chadwick’s Case, 80 N. J. Eq. 471 (E. & A. 1912); In re Simpson’s Will, 136 N. J. Eq. 597 (Prerog. 1945). See also Stout v. Leonard, 37 N. J. L. 492, 495 (E. & A. 1874). Rule 3:100-1, which provides that venue in an .action for the probate of a will shall be laid in the county “where the decedent had his domicile at his death,” is not applicable to county courts. Rule 5 :3-1. The intent and meaning of Rule 3 :100-1, which is applicable to the Superior Court, and of the statute, R. S. 3 :2-23, which is applicable to the county courts, are each to the same effect, and by Rule 5 :4, governing practice in the surrogate’s court, the form of complaint for the probate of a will there is the same as in the Superior Court. Rule 3:88-l(e) provides that the complaint shall state whether or not a caveat has been filed with the court or the surrogate of the county “where the decedent was domiciled at his death.”

We conclude that, as the decedent was not domiciled in Warren County at the time of his death, the Warren County Court was without jurisdiction to entertain probate of his will.

The court below allowed counsel fees to be paid out of the estate. As the court was without jurisdiction over the estate, we cannot sustain these allowances. In re Paullin, 92 N. J. Eq. 419 (E. & A. 1921). The judgment below is affirmed insofar as it determines that the Warren County Court was without jurisdiction to probate the will and is reversed insofar as it allows counsel fees. No costs. ’


author: McGeehan, S. J. A. D.

text:
    EDWARD L. NEYLON, PETITIONER-RESPONDENT, v. FORD MOTOR COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951
    Decided April 12, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Verting C. Enteman argued the cause for respondent-appellant {Messrs. McCarter, English & Stuier, attorneys).

      Mr. 8am Weiss argued the cause for petitioner-respondent {Mr. Lewis 8. Jacobson, attorney).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The employer appeals from a judgment entered in the Middlesex County Court sustaining an award for the petitioner made by the Division of Workmen’s Compensation.

The petitioner, employed as a utility man or ear loader, suffered an injury to his back while unloading a freight car. Seat frames weighing between 10 and 30 pounds were piled 25 high in the car. The weight of the frames forced them down and the frames had prongs on them which had to be pulled to remove them. He climbed to the top of the car to hand the frames down to his fellow workers. While pulling a frame, he felt “something go” in his back and “a terrific pain.” He stopped work immediately, notified his foreman and then went to the hospital, where he received treatment for his injured back. His injury was diagnosed as a left sacroiliac sprain. A coworker testified that petitioner stopped while in the act of pulling out a frame, complaining that he hurt his back; and that he came down from the car slowly and apparently in pain. The petitioner never had any trouble with his back before this incident.

The petitioner testified that, at the time of this incident, he was doing the same type of work and doing it in the same way as he had been doing it for the preceding six months, and that the only thing unusual about the incident was that he got a pain in his back as he pulled the frame.

Both in the County Court and in this court, the employer disavowed any desire to question the award on the ground of failure of proof that the back injury suffered by the petitioner was caused by the physical exertion. The sole contention is that the failure to prove an unusual exertion or unusual strain precludes an award. To support its contention, the employer argues that Lohndorf v. Peper Bros. Paint Co., 134 N. J. L. 156 (Sup. Ct. 1946), affirmed 135 N. J. L. 353 (E. & A. 1947) and the later cases, citing among others Grassgreen v. Ridgeley Sportswear Mfg. Co., 2 N. J. Super. 62 (App. Div. 1949), cert. denied 1 N. J. 603 (1949) and Seiken v. Todd Dry Dock, Inc., 2 N. J. 469 (1949) established the rule that in physical exertion cases there can be no award for injury resulting from strain or exertion incident to the employment, without proof that the strain or exertion was unusual, and that these cases completely overruled any statement to the contrary in the earlier cases such as Hentz v. Janssen Dairy Corp., 122 N. J. L. 494 (E. & A. 1939); Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (E. & A. 1939); Ciocca v. National Sugar Refining Co. of N. J., 124 N. J. L. 329 (E. & A. 1940); Molnar v. American Smelting & Refining Co., 128 N. J. L. 11 (E. & A. 1942); and Cavanaugh v. Murphy Varnish Co., 130 N. J. L. 107 (Sup. Ct. 1943), affirmed 131 N. J. L. 163 (E. & A. 1944). The Lohndorf case and the cases following it, cited by the employer, are all heart disease cases and they do not have the broad sweep claimed. As was pointed out in Mills v. Monte Christi Corp., 10 N. J. Super. 162 (App. Div. 1950), cert. denied 6 N. J. 315 (1951), these cases establish the requirement of proof of unusual strain or exertion in heart disease eases, grounded upon the j ndicially declared presumption that death from heart disease is ordinarily the result of natural physiological causes rather than trauma or particular effort; but this requirement has not been extended to other injuries, such as that suffered by this petitioner, resulting from a strain or exertion incident to the employment. Cf. Fox v. Plainfield, 10 N. J. Super. 464 (App. Div. 1950).

Under the liberal construction given to our Workmen’s Compensation Act, the particular incident involved in this ease, being an unlooked for mishap or untoward event which was not expected or designed, was an accident (Mixon v. Kalman, 133 N. J. L. 113 (E. & A. 1945)) and an award should not be denied merely because the strain or exertion causing the injury was not an unusual one. Mills v. Monte Christi Corp., above.

Affirmed.


author: Eastwood, J. A. D.

text:
    ROSALIE T. DALE, PLAINTIFF-APPELLANT, v. JOHN E. DALE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 18, 1951.

      Before Judges Eastwood, Bigelow and Freuud.

      Mr. Vincent P. Torppey argued the cause for the plaintiffappeJlant.

      Mr. Richard J. Filzmaurice argued the cause for the defendant-respondent.
   The opinion of the court was delivered by

Eastwood, J. A. D.

In a decree nisi dated December 9, 1946. the plaintiff-appellant, Kosalie T. Dale, was granted a divorce from the defendant-respondent, John E. Dale, on the ground of extreme cruelty. By the decree, Mrs. Dale was awarded alimony of $500 per month. In the latter part of 1948 the defendant applied for a reduction thereof. After extensive hearings, the application was denied and defendant continued the monthly payments of $500. During March, 1950, the defendant filed a petition, again seeking a modification of the alimony order, whereupon the plaintiff applied for an increase thereof. Leslie IT. Cohen, Esquire, appointed as master to take the testimony, reported to the advisory master that he found that the defendant’s income had been reduced and recommended a reduction in the monthly alimony payments from $500 to $420. This report, following the hearing of exceptions thereto, was approved and adopted by the advisory master. The reduced amount was incorporated in an order dated November 9, 1950, from which order plaintiff appeals.

The plaintiff contends that (1) the advisory master erred in finding the defendant had suffered such a change of circumstances as to warrant a reduction in the alimony payments, and (2) that the master also erred in finding that the plaintiff was not entitled to increased payments.

R. S. 2:50-37 provides that an order for the payment of alimony or support “may be revised and altered by the court from time to time as circumstances may require.” Our courts have held that where a husband seeks relief under this provision he has the burden of establishing, by satisfactory proof, the “changed circumstances which would justify the reduction sought.” Ramhorst v. Ramhorst, 138 N. J. Eq. 523, 525 (E. & A. 1946); Boorstein v. Boorstein, 14.2 N. J. Eq. 135, 136 (E. & A. 1948); Storch v. Storch, 7 N. J. Super. 97 (App. Div. 1950). The plaintiff contends that the proofs establish such a change in her financial status, justifying the allowance of an additional amount of alimony, whereas the defendant argues that the facts before the advisory master clearly prove his reduced income and support the modification ordered.

It will be readily seen that the issue is solely factual. Plaintiff urges this court to exercise its authority under Bules 1:2-20 and 4:2-6, and make new findings of fact. “The Rules remind us that ‘due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses/ Beyond that, every intendment is in favor of the judgment under review, and we should not disturb the court’s finding of fact unless we are well satisfied that, the finding is a mistaken one. McGowan v. Peter Doelger Brewing Co., 10 N. J. Super. 276 (App. Div. Nov. 1950).” Capone v. Norton, 11 N. J. Super. 189 (App. Div. 1951), at p. 193. We have reviewed the record and conclude that there is no necessity to exercise our authority under Buies 1:2-20 and 4:2-6. There was conflicting testimony with respect to the issues. In marital eases, great weight is given to the findings of the master and credibility is a question preeminently for his determination, and we are, therefore, reluctant to disturb the findings of fact by the trial court. Grossman v. Grossman, 142 N. J. Eq. 714 (E. & A. 1948); Capozzoli v. Capozzoli, 1 N. J. 540 (1949). The opportunity is always available to the parties to apply for and obtain a modification of the alimony order, if and when they are able to establish such a change in their financial status as may warrant that action. Meanwhile, we find nothing in the record that justifies disturbing or setting aside the order under review.

The judgment is affirmed, without costs.


author: Hanemajt, J. S. C.

text:
    BOOST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. RANDLE B. FAUNCE, E. LESTER STOCKTON, Sr., RANDLE N. FAUNCE, E. LESTER STOCKTON, Jr., AND DRINK ATOAST, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 29, 1951.

      Mr. W. Louis Bossle, for plaintiff.

      Mr. Charles A. Cohen fox the defendants (Messrs. Worth <& Worth, attorneys).
   Hanemajt, J. S. C.

Plaintiff herein seeks to obtain an injunction against the defendants in the following respeets: (1) from manufacturing, advertising or selling a certain soft drink known as “Atoast”; (2) from using the name “Atoast”; (3) from using the bottle allegedly imitative of that of a soft drink manufactured and sold by the plaintiff; (4) from using the label allegedly imitative of that used by plaintiff; (5) from using the color of the syrup allegedly imitative of that used by plaintiff; (6) in general, from falsely representing their product as that of plaintiff’s and for discovery of profits and recovery of damages resulting from the foregoing.

The facts as set forth in the complaint are as follows: The plaintiff was incorporated on May 15, 1915 and from that time has been manufacturing and selling a certain soft drink or syrup known as “Tak-Aboost.” This product was manufactured in accordance with an allegedly secret formula originated and perfected by one Benjamin R. Eaunce, who sold said formula to the plaintiff and who, until his death on April 27, 1949, was plaintiff’s president. The said Benjamin R. Eaunce allegedly informed his sons, the defendants Randle B. Eaunce and E. Lester Stockton, Sr., who were then plaintiff’s employees, of said secret formula. Shortly after the death of the said Benjamin R. Eaunce the said Randle B. Faunce and E. Lester Stockton, Sr., who were stockholders in plaintiff’s corporation, had a falling out and disagreement with B. Paul Eaunce, also a son of Benjamin R. Eaunce and Maude E. Eaunce, widow of Benjamin R. Faunce. Thereafter, on or about January 3, 1950 the defendants disassociated themselves from the plaintiff and incorporated “Drink Atoast,” a corporation of the State of New Jersey, and commenced the manufacture of a soft drink or syrup which was sold in competition to that manufactured by the plaintiff, and known as “Atoast.”

Although the cause was tried upon the theory that the plaintiff manufactured its product under a secret formula which became known to Randle B. Faunee and E. Lester Stockton, Sr., while they were employees of the plaintiff, the complaint alleges as follows:

“20. The defendants’ product is not identical with plaintiff’s; and, while it is otherwise imitative of plaintiff’s product, defendants’ product does not have the same taste.”

Plaintiff’s alleged basis for relief is, as expressed in its brief, a breach of trust on the part of defendants. Plaintiff contends that the defendants having acquired knowledge of a secret formula by reason of their confidential relationship, cannot utilize that secret or any variation of it to manufacture a product for the trade, in competition with plaintiff. Plaintiff seeks as well to restrain the defendants from alleged unfair trade practices, but also relies upon them as augmenting such breach of trust.

In order for plaintiff to succeed on its primary complaint in the restraint sought against defendants from the manufacture of the soft drink in which they are now engaged, it is elemental that there must be in existence a secret now being used by plaintiff, and which, or some variation of which, is being used by the defendants. After this has been established, plaintiff must bear the burden of proving that the defendants obtained the information or knowledge required to compound the soft drink, which they are manufacturing, in such a manner as would make them guilty of a breach of trust or confidential relationship by its use. Stone v. Grasselli Chemical Co., 65 N. J. Eq. 756 (E. & A. 1903); Vulcan Detinning Co. v. American Can Co., 72 N. J. Eq. 387 (E. & A. 1906); Maas & Waldstein Co. v. Walker, 100 N. J. Eq. 224 (Ch. 1926).

Restatement of the Law, Torts, sec. 757, p. 6, defines a trade secret as follows:

“Some factors to be considered in determining whether given information is one’s trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.”

Also, Restatement of the Law, Torts, sec. 757, p. 5, as follows:

“b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business (see see. 759) in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount or other terms of a secret bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operation of the business. Generally, it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.
“Secrecy. The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret. * * *”

The defendants do not dispute the proposition as advanced by plaintiff, i. e., that one who learns a trade secret by reason of a confidential relationship with the proprietor thereof may not divulge it or use it for his own benefit.

Plaintiff admits that if it were not for the breach of confidence the defendants would have the right to manufacture not only a product similar to plaintiff’s, but even plaintiff’s identical product.

The initial inquiry is, therefore, whether a trade secret or secret formula in fact exists.

The secret may consist of any one or all of the following—• the ingredients, the proportions of ingredients, or method of combining or mixing the ingredients. Plaintiff relies upon the entire formula containing all three elements.

The sole witness for plaintiff who testified as to the formula now used by it was Benjamin Paul Faunce, the next to the last witness to testify. His stepmother, who was the last witness, added very little to the case. Then, for the first time, did it become apparent that Handle ft. Faunce, the originator of the alleged secret formula, had reduced the same to writing. When confronted with this evidence, Benjamin Paul Faunce was forced to produce the formula, which was in the custody of the stepmother. This is the alleged formula upon which plaintiff relies. He admitted that the instructions contained in this paper were insufficient to manufacture Tak-Aboost. In addition, lie admitted that the formula was changed from th(' time it was originally written and that actually he himself: liad to experiment with the ingredients until he came up with the result he now uses. In reference to his father’s formula, the witness said:

(Page 201)
“Q. From time to time through the years has there been any change in the formula? A. Yes, quite a few.
Q. Do you recall some of the changes? A. Yes, I know that around ten years ago there was more citric acid added and in that way you could cut down a little on the oil of lemon.”
(Page 209)
A. I knew the ingredients.
The Court: The proportions?
The Witness: Not exactly, they were varied a lot, they were changed from time to time, my father did that, he was known for that.
Q. Well, how do you know they wore changed if you didn’t know the first proportion, the first set of proportions? A. I would know them and he would decide to change something, add a little more, or take a little out.”
(Page 236)
“By The Court:
Q. Bet me ask you something. This formula you gave in answer to Mr. Bossle’s questions isn’t the percentage or proportion of ingredients your father gave you, is it? A. No.
Q. That is something you have developed since the first of the year yourself,' is that so? A. Not exactly, Judge, he changed things around a lot.
Q. Do you mean there was never any final formula, he never told you "what the final formula was? A. No, he changed it.
Q. Did he ever have any final formula? A. Not that X know of.”

Tiie written formula P-H-3 was alleged to be the secret and yet it was admitted that Tak-Aboost could not be compounded therefrom.

I am satisfied that there never was a permanent formula for Tak-Aboost. I am convinced that Benjamin R. Paunce, during his lifetime, changed the formula at irregular periods and that Benjamin Paul Paunce, since January 1950, has experimented and has developed his own formula. There never was any set, fixed formula. I find that the formula now used by the plaintiff is neither the formula which was being used at the time of the death of Benjamin R. Paunce, nor that any final formula existed at the time of his death.

An analysis of the ingredients of the two alleged formulae demonstrate that the ingredients were (1) different in some particulars and (2) where identical, were used in different proportions.

The testimony of Randle B. Paunce as to the ingredients of Tak-Aboost at the time he disassociated himself from plaintiff, and the testimony of Benjamin Paul Paunce as to the ingredients at the time of trial, demonstrates the following comparison with the Atoast formula:

Ingredients:

Sugar

Caramel

Water

Caffeine Citric Acid Tartaric Acid Phosphoric Acid Mace Extract Oil of Lemon-cut Oil of Lemon 5X Oil of Lime

Tah-Aboost 110 gals, per Handle 600 lbs.

To color To make 110 gals.

8 oz.

3 lbs. 12 oz. 22 oz.

10 oz.

15 oz.

28 drams

None

None

Tah-Aboost 103 gals, per Paul 500 lbs.

1% gal.

To make 103 gals.

7 oz.

4 lbs. 5 oz.

17 oz.

8% oz.

%oz.

24 oz. (145 drams None None

Atoast 100 gals.

600 lbs.

8 to 16 qts. To make 100 gals.

15 oz.

4 lbs. 8 oz. 10 oz.

5 oz.

None

l.llti drams 1 dram 4 drams

Approximately 99% of the syrup from which soft drinks are made is composed of sugar (including caramel) and water. Since this is so, the secret must-lie in the 1%; balance.

In compliance with the federal pure food laws, the label affixed to the bottles containing plaintiffs product recites the following:

“A beverage syrup prepared with sugar, water, caffeine, phosphoric acid, fruit acid and other flavoring material colored with caramel.”

The only ingredients in either of the formulae which are not disclosed by this statement are citric acid, tartaric acid, oil of lemon (all common to both formulae), mace extract (present in plaintiff’s formula) and oil of lemon 5X and oil of lime (both present in defendants’ formula). All of these are flavors and are commonly used in soft drinks, with perhaps the exception of mace, which is present only in plaintiff’s syrup and of which defendants cannot be accused of illegal use. The proportions used in both formulae of these syrups are entirely different. Although the two resulting soft drinks may have a somewhat similar taste (although this is doubtful, from the testimony), the predominant flavor of each is lemon. Any member of the public, with access to recognized texis, could develop a drink resembling that of plaintiff’s. Since the testimony satisfies me that there never existed a fixed, final formula by which plaintiff’s drink was manufactured, the question arises—are the defendants, because of having had some connection with the plaintiff, forever barred from manufacturing a soft drink which has a flavor resembling that of plaintiff’s drink, although the ingredients and proportions thereof are different in the two drinks, and the ingredients are those of popular knowledge? The effect of what plaintiff sa\-s is that once having worked for it, defendants cannot ever make anyr soft drink having a lemon flavor.

The ingredients used by defendants wore those of common knowledge to any one in the soft drink industry. The plaintiff failed lo prove that the method of combining the ingredients was of a secret nature. In addition, the ingredients themselves used in the two formulae were different.

In view of the foregoing, plaintiff’s suit for an injunction against manufacture will be denied.

We come, therefore, to the question of unfair competition, the basis of which, as stated by plaintiff, is expressed in National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369 (Ch. 1914), as follows:

“The law relating to fraudulent or unfair competition between traders is so firmly established and has been so lucidly illustrated and defined by the courts of England and of this country, that extended citation of authorities will be profitless. The underlying principle that no man has a right to palm off his wares as those of another, thereby cheating the purchasing public and filching the business of a rival, is so essentially an element of natural justice and so solidly imbedded in our jurisprudence, that all that is necessary to quieten a court of equity, is to show that in the particular instance the offence has been committed. The cases cited by counsel in their briefs exemplify the illimitable conditions and circumstances under which this simple doctrine requiring men to be honest towards each other may be invoked.” * * *
“Generally, as to size and shape and capacity (and the fifteen cartons of the complainant differ in these respects), it may be said that the defendant’s cartons are exact and substantial counterparts of the complainant’s. The red-end seal on both ends of the infringing cartons, and the superimposed wax-paper interior, are also uniform points of likeness.”
# sfc $ $ $ $
“The facts in the case sub judiee, in my judgment, abundantly establish that the defendant’s cartons and carton wrappers, its seal, trade mark and trade name, associated as they are, tend towards deceiving and are likely to deceive the purchasing public into the belief that the defendants crackers and biscuits are those of the complainant.”

See also A. Hollander & Son, Inc., v. Jos. Hollander, Inc., 117 N. J. Eq. 306 (Ch. 1934), affirmed 118 N. J. Eq. 262 (E. & A. 1935).

I cannot find from the evidence that the public has been misled by having defendants’ article palmed off on it as plaintiff’s. The name is sufficiently dissimilar to make purchasers aware of the difference. The bottle is a common stock bottle in ordinary use by a great many sellers of fluids. The color is not especially distinctive.

There is no reason why defendants should not solicit plaintiff’s trade. The mere one-time employment of defendants by plaintiff, in and of itself, is not suffieent ground to prevent such course of action.

I find as well that plaintiff has not borne the burden of proving false representations by defendants’ agents to its one-time customers.

The complaint will be dismissed.


author: Gkimsiiaw. J. S. C.

text:
    JOHN W. CLERKE, PLAINTIFF, v. LAWRENCE J. BECK, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 10, 1951.

      il/fissrs. Toner, Speakman <& Crowley, attorneys for plaintiff.

      Miss Beatrice, R. Farvin, attorney for defendant.
   Gkimsiiaw. J. S. C.

The plaintiff, John W. Clerke, is the inventor of a threadless pipe coupling of considerable value. On September 10, 1947, he made application for a patent which was granted during the pendency of the litigation. Both parties claim title to the patent and an adjudication of their respective rights is sought.

The pretrial order limited the issues as follows:

“a. The extent of the interests of the plaintiff and the defendant in the invention and its 'profits;
“b. The damages suffered by eiiher party as a result of the assertions of the respective claims of interest of the adverse party;
“c. Whether the plaintiff took the items of machinery and chattels as set forth in the counterclaim, or any of them; and
“d. As to those items or chattels and machinery which the plaintiff has in his possession, in whom is the title or the right to possession.”

No serious attempt was made by either party to offer proof of damage. And. with the exception of a Logan lathe, to which reference, will hereafter he made, the chattels mentioned in issues (c) and (d) have been surrendered to the defendant or are no longer in dispute, so that there remains for determination the extent of the interest of the respective parties in the invention in suit.

Generally speaking, an invention and the resultant patent is the property of the one who conceives and perfects it. And the law will protect the inventor’s rights, unless by contract, express or implied, he has bargained away those rights.

The mere fact that an invention was conceived and developed while the inventor was employed by another does not give to the employer any right in or title to the invention. To establish a claim in the absence of an express contract, the employer must show that the inventor was engaged specifically to exercise his inventive faculties for the employer’s benefit. Or he must establish the fact that the invention was conceived and developed during working hours with the aid of fellow employees and with the use of the employer’s machinery and materials. In the first case, the invention belongs to the employer. In the second instance, the employer has shop rights, i. e., an irrevocable but non-exclusive right to use the invention. Solomons v. United States, 137 U. S. 342 (1890); United States v. Dubilier Condenser Corp., 289 U. S. 178 (1933); Marcalus Manufacturing Co. v. Sullivan, 142 N. J. Eq. 434 (Ch. 1948); International Pulverizing Corp. v. Kidwell, 7 N. J. Super. 345 (Ch. Div. 1950).

The trial of this case took 34 trial days. The record is voluminous and is supplemented by 239 exhibits. It is difficult, therefore, to keep the statement of facts wdthin reasonable bounds.

The plaintiff, John W. Clerke, may be described as a mechanical genius. His formal education was somewhat meager but his practical experience, especially in the automobile and airplane industries, has been wide. Over the course of the years Clerke has been a prolific inventor, having about 100 inventions to his credit.

The defendant Beck is a consulting mechanical engineer. After graduating from college he spent some years in the employ of a utility company in the South. Since then he has been a consulting engineer in Yew York, save for a short period when he was employed by the Yew York Park Department.

The two men met in 1939. Clerke at that time was employed by an airplane manufacturer on Long Island, and Beck was engaged in some capacity with the Kincaid Company in Yew York. During the course of the next two years the acquaintanceship ripened. Beck became a fairly frequent visitor at the Clerke home. Clerke had a shop in the basement of his home, where he worked on his various devices. Here they discussed their mutual interests. Beck described a flame-thrower and muffler of his design, and Clerke told Beck of a welding helmet and various other projects which he had conceived.

In 1941 their paths separated. Clerke went to Baltimore to work in an airplane factory, and Beck became engaged in the production of flame-throwers for the Army, at the plant of the Beattie Manufacturing Company in Little Falls, Yew Jersey.

The position of Beck in the flame-thrower program was the subject of conflicting testimony. The contract under which the venture was operated was between the Beattie Manufacturing Company on the one hand and a corporation known as Beck Chemical Equipment Corporation on the other. Mr. Brennan, of the Beattie Company, testified that Beck was at the Beattie plant as the representative of the Beck Corporation. Beck, on the other hand, insisted that the venture with Beattie was his private operation and that the Beck Chemical Equipment Corporation was simply his alter ego, used by him for his own convenience. Beck’s version of the situation, however, would seem to be incorrect. He and his associates in the Beck Chemical Equipment Corporation became embroiled in litigation in the State of Yew York, which resulted in a determination by the Yew York Court of Appeals that Beck’s interest in the corporation was only a one-half interest. Pines v. Beck, 300 N. Y. 181.

In any event, when next Beck and Clerke met, in 1943, Beck was devoting his time to the production of flame-throwers at the Beattie plant at Little Falls. Clerke, having returned from'Baltimore, was working for the Glidden Buick Company in New York, in its production and engineering department. Several meetings between the two men were held during the fall and winter of 1943. The testimony as to what transpired was conflicting. Clerke testified that Beck evinced considerable interest in a welding helmet of novel design, which Clerke had invented, and suggested a joint enterprise for its production. Beck, on the other hand, stated that Olerke turned over to him the welding helmet, saying that he, Clerke, had no money to expend on its development. Clerke said further, according to Beck’s story, that if Beck made a success of the helmet Clerke would be satisfied with whatever Beck gave him in return.

It might be observed, parenthetically, that the motif of trust by Clerke in the generosity of Beck runs through Beck’s entire testimony. It creates a picture of childlike credulity which Clerke’s appearance on the stand did not support.

Although some drawings of the helmet were given to Beck by Clerke, no commitments were made by either of them until May of 1944. Then, continuing Clerke’s recital of events, Beck invited him to visit the flame-thrower operation at the Beattie plant and to discuss matters of mutual interest. The invitation was accepted and on May 14, 1944, Clerke and his wife went to Little Palls.

After an inspection of the flame-thrower operations, Beck entertained the Clerkes at dinner. He then proposed that Clerke should join him in the manufacture of the welding helmet as a joint venture. Clerke was to contribute the helmet and supervise its manufacture. Beck would supply the capital and provide facilities for manufacture. Manufacturing space, he said, was available at the Beattie plant.

Clerke pointed out that he was receiving $8,800 from the Glidden Company and needed the income for the support of his family. Beck then said he would arrange for Clerke to receive $6,000 and would make up the difference in some other way, possibly by means of an expense account. Just how that was to be done was not settled. Ultimately Clerke received $7,000 a year while he was at the Beattie plant.

Beck said, also, that he had some manufacturing problems connected with the flame-thrower program, in the solution of which he would like Clerke’s help. To this Clerke agreed.

Gierke joined Beck at the Beattie plant on May 29, 1944. It immediately became apparent that Beck had done nothing to prepare for the development and production of the welding helmet. Neither materials nor space for manufacture were available. To all intents and purposes Clerke became an employee of the flame-thrower venture. His entire time was spent working on that program and his salary was paid by the Beattie Manufacturing Company. Such work as he did on the helmet was done in a shop which he had in the basement of his home.

The war contracts terminated about September 1, 1945, and work on the flame-throwers ceased. Clerke then expected Beck to go forward with the helmet project. Space for manufacturing was still available at the Beattie plant. A model of the helmet had been perfected by Clerke late in 1944. Apparently everything was in readiness. But the capital to finance the venture was not forthcoming. And aside from desultory work on the helmet and various other small articles, nothing was done. Clerke exhibited the helmet to several interested concerns, but no helmets were available for sale.

At the end of 1946, the harmonious relations between Beck and the Beattie Manufacturing Company came to an end. Beck was required to vacate the space in the Beattie plañí which he had been occupying Clerke’s salary was stopped. The two men had a conference. Clerke suggested that he should get a job. Beck demurred. While he was unable to pay Clerke the salary he had been receiving at the Beattie plant, Beck said he would pay Clerke $100 per week as an advance on the helmet project. They would locate a factory and start work on the helmet in earnest.

A factory in East Hanover was finally leased in the summer of 1947 and the Bock equipment was moved into it. Power was not available for some months and no manufacturing could be done. Clerke, during this period, worked on drawings for improvements to the helmet and on various'items devised by Beck. At the same time he was continually urging Beck to obtain the capital necessary for their venture.

On November 11,1947, still according to Clerke, Beck came to him and admitted defeat. He said that he had been unable to arouse any interest in the welding helmet. He remarked, however, that if he had for development some simple product which could be sold in hardware stores, prospects might be brighter. At this juncture Clerke produced the coupling in suit.

Clerke had invented the pipe coupling in June of 1945 and had reduced it to practice during that year. In January of 1946 he had consulted his patent attorney, Ridsdale Ellis, with the idea of having him determine the patentability of the device. Ellis had a search made and, after further study, decided that the coupling was patentable. Then, since Clerke was short of funds, Ellis suggested that Clerke should explore the market. This was done and the patent application was filed on September 10, 1947. It was this invention, the subject of this litigation, which Clerke showed to Beck in November, 1947.

Clerke told Beck that he was willing to add the coupling to the joint venture but with certain modifications of the original agreement. If Beck manufactured the fitting with capital he had provided, they would share profits equally. But Clerke intended to retain ownership of the patent and of the right to license its use by others. To this Beck agreed.

From money obtained by Beck from a loan on his machinery, patterns and castings of the coupling were made. These Beck showed to various people but failed to arouse any interest. In the spring of 1948, Clerke suggested that contact be made with the Peter A. Frasse Company, a very large distributor of plumbing fixtures! Clerke had already discussed the fitting with them in the latter part of 1946. An appointment was made with Mr. Lennon, one of the executives of the Frasse firm, and Clerke and Beck went to New York to interview him. Mr. Lennon said the Frasse Company would be interested in the fitting, particularly if it could be made in stainless steel, and suggested that models be made in that metal.

Clerke and Beck contacted the Cooper Alloy Foundry Company, which concern manufactured fittings distributed by Frasse. The Cooper Company made some models of the fitting. The two then returned to New York and again met with Lennon and some of his associates. A survey of the field had been made by a Mr. Robbins, an employee of Frasse, and had resulted very favorably. There was considerable interest indicated by retailers and Frasse was prepared to market the fitting when produced. At Clerke’s suggestion a letter was addressed to Beck, in which the interest of the Frasse Company in the fitting was expressed, and in which they also indicated their willingness to market the product.

During the summer and early fall of 1948, Beck continued his efforts to raise money but was unsuccessful. Finally Mr. Lennon suggested a meeting with the representatives of the Cooper Alloy Foundry Company. The meeting was arranged for October 1, 1948.

Clerke testified that several days prior to the meeting he and Beck reviewed the situation. Clerke reminded Beck that any interest Beck might have in the fitting was contingent upon his ability to finance its manufacture. And Clerke pointed out that if, as appeared likely, the Cooper Company should propose that they finance as well as manufacture the pipe coupling, then Beck would have no part in the enterprise.

The meeting of October 3, 1948, was attended by Mr. Cooper and other representatives of the Foundry Company; Lennon and other officers of the Frasse Company; Clerke and Beck. There was a discussion of the pipe fitting, during which Cooper and Clerke did most of the talking. Cooper expressed a desire to manufacture the coupling in stainless steel, under a license from Clerke, with Frasse having an exclusive right of distribution. Beck, who had remained silent during the discussion, then expressed his willingness to provide the necessary financial aid. The offer was rejected by Cooper, who said his com■pany would assume that responsibility. It was then arranged that the attorneys for Clerke and the Cooper Company should draw a suitable contract.

Following the meeting, Clerke and Beck again conferred. Clerke told Beck that, in view of the developments, Beck would have no further interest in the fitting. Beck disagreed, and suggested a conference with Ellis. The meeting was held. Ellis told Beck that Clerke owned the invention. B.eck declared that he was entitled to a 50 per cent share in the venture. Clerke disagreed, and the meeting ended.

On October 11, 1948, Beck, with’his attorney, again met with Ellis, Clerke not being present. Beck at that time offered to purchase the invention but the offer was not accepted.

The proposed contract between Cooper and Clerke was not signed because of claims made by Beck to Cooper and Frasse. Later, however, and just before the trial, Cooper reopened negotiations and an agreement was executed with Clerke, under the terms of which the profits from the sale of the coupling were to be held in escrow pending the outcome of the litigation.

As might be expected, the stories told by Beck and Clerke, while following the same general outline, differed radically in important particulars. Beck denied that there was any understanding in 1947 with reference to the coupling in suit. He based his claim of title to the patent entirely upon the agreement of May, 1944. He testified that primarily he engaged Clerke as an assistant on the flame-thrower project. He told Clerke that during the slack periods which occurred from time to time, Clerke would be expected to work on a post-war development program which Beck had in mind. In this connection it was to be understood, according to Beck, that any invention conceived by Clerke and sponsored by Beck was to be the property of Beck. And any inventions conceived by Clerke which resulted from ideas and directions given by Beck, were also to belong to Beck. Of course, the patents which might result were to be assigned to Beck.

In return, Olerke was to receive a salary of $7,500 and such further sums as Beck saw fit to give him. The amount of such additional payments was to be a matter for Beck’s determination. But, as he so modestly put it, Beck would deal liberally with Olerke.

Just why Olerke, in addition to accepting a reduction in salary, should make such a complete surrender of all his rights merely for the privilege of working for Beck, is not satisfactorily explained. Beck’s statement that Olerke sought him out is discredited by the testimony of Diehl, a disinterested witness who stated that Beck told him that he, Beck, had been trying for some time, without success, to get Olerke to come lo Little Palls. And the suggestion that Olerke was having difficulty with fellow employees at the Glidden Company was negated by the production of a testimonial of affection given Olerke upon his retirement from the Glidden employ.

Beck said that the pipe coupling belonged to him because the idea was his and was given to Olerke to develop. There is no credible evidence in the record which supports this claim. And Beck’s uncorroborated statement I am unwilling to accept.

The evidence is overwhelming that no work on the pipe coupling was done at the Beattie plant. Nor, for that matter, was it worked on at East Hanover for more than a year after it was invented. And I am satisfied that for the greater part of that time Beck was not aware of its existence.

There was some work done on couplings in connection with the flame-thrower program. However, they were of a common type readily obtainable on the market. And they had no similarity to the coupling in suit, a fact, apparently, which Beck was unable to appreciate.

I am completely unable to believe Beck’s version of his understanding with Clerke. Eor one reason, the terms he outlined axe so incredible that only the most compelling need would explain a man’s willingness to give his assent to such an arrangement. And such a need is not shown.

Beck's conduct during the period covered by the various conferences and negotiations and described by a number of witnesses, is entirely inconsistent with the idea of ownership of the patent by him. At no time prior to the litigation did he claim more than an equal right with Clerke to share in the profits of the invention. All the negotiations were carried on by Clerke, who made all arrangements. And Beck, who was always present, never once claimed that the device belonged to him. Even Cone, the Morristown lawyer to whom Beck went for financial aid, and who testified for Beck, said that Clerke was the one who suggested the share of the enterprise which the proposed backer might expect.

Oddly enough, the story of Beck’s business activities, as told at the trial, follows a pattern which lends support to Clerke’s version of the contract. The agreement between Beck and his associates in the Beck Chemical Equipment Corporation provided that he should furnish the invention and they the finances, with a mutual sharing of the profits. To the same effect was the .contract between the Beck Chemical Equipment Corporation and the Beattie Manufacturing Company. And even Diehl, who had a muffler which he sought to develop, testified that he had a similar arrangement with Beck.

The terms of any agreement under which an inventor surrenders his rights in an invention and the resulting patent must be clearly and convincingly proven. And the burden of establishing such an agreement is on the one who asserts it. Eustis Manufacturing Co. v. Eustis, 51 N. J. Eq. 565 (Ch. 1893). In my opinion this burden the defendant Beck has failed to sustain. Even if we disregard the evidence of the other witnesses, Beck’s demeanor on the stand, his contradictory testimony, and his refusal to answer directly any questions, furnish eloquent support for his adversary. In fact, I was unable to believe him.

Prior to the hearing there was no allegation of the existence of any shop rights in favor of Beck. During the course of the trial an abortive' attempt was made to show that Clerke used materials and tools of the flame-thrower venture in perfecting the pipe coupling. The testimony was not convincing. But assuming for the moment, that the necessary elements to establish shop rights were proven, it is difficult to understand how they could inure to the benefit of the defendant Beck. If Clerke was employed by anyone, he was employed by the joint venture and the parties to that venture were the Beattie Manufacturing Company and the Beck Chemical Equipment Corporation.

The same may be said about the Logan lathe, title to which is in dispute. It was bought from a sub-contractor of the llame-thrower venture, paid for by check of the Beattie Company and shipped to Clerke’s home. Clerke testified that he was informed that the cost of the lathe had been charged against his so-called drawing account.

Beck saw the lathe in Clerke’s home. He knew that Clerke had presented it to his son as a gift, but Beck never protested. He never included the lathe in the various lists of his equipment prepared in connection with his financial operations. Nor did he ever claim ownership until the litigation started. It may be that Clerke’s title to the lathe is defective but it is hard to see how Beck can question that title.

There will be a judgment declaring the plaintiff Clerke to be the owner of the invention in suit and the patent thereon, together with all rights therein, as against the defendant Beck. And as against the defendant Beck, Gierke will be declared to be the owner of the Logan lathe.


author: Doxhes, J. S. C.

text:
    VINCENT PANARO, PLAINTIFF, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EWING AND WILLIAM L. NASON, CLERK OF THE TOWNSHIP OF EWING, IN THE COUNTY OF MERCER AND STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 3, 1951.

      Mr. Vincent Panaro, pro se.

      Mr. George H. Bohlinger, Jr., attorney for defendants.
   Doxhes, J. S. C.

Defendants in this case move for a judgment on the pleadings pursuant to Buie 3 :12-3.

Plaintiff has instituted suit to compel the defendants to increase the number of members of its governing body from three to five members, on the ground that such increase has been required since the 1940 census. There is no dispute as to any of the material facts. The Township of Ewing in Mercer County has had more than 4,500 residents since the 1930 census. Plaintiff, therefore, alleges that since that time the township should have had five members of the township committee instead of three.

The statutes upon which plaintiff relies are as follows:

R. S. 40:146-1 which provides that the township committee shall consist of three members except where otherwise provided by law; and
R. S. 40:146-2 which provides that in every township having a population of more than 4,500, the township committee shall consist of five members.

The word population, of course, means the population as shown on the latest federal census, effective within this State, and is synonymous with “inhabitants.” See R. S. 1 :1-2.

If the aforementioned statutes were the only ones dealing with the present subject matter, it would be obvious that the plaintiff would be entitled to the relief he now seeks. However, in 1931, by L. 1931, c. 271 now incorporated in the Revised Statutes as R. S. 40:11-17, the Legislature passed the following act:

“The promulgation or taking effect of the federal census for the year one thousand nine hundred and thirty, or the passage of an act for the reclassification of counties of this state, shall not operate to increase or decrease the salary or compensation of any officer or employee of any.county or municipality. All such officers and employees shall continue to receive salary or compensation at the rate received by them on April twenty-seventh, one thousand nine hundred and thirty one.
The promulgation or taking effect of said census shall not operate to fill, in the several counties and municipalities, any additional offices or employments, or grant any pension or increase any pension paid on the date above mentioned.”

In 1940, Chapter 181 (N. J. S. A. 40 :11-17.1) was passed which had the same effect with respect to the 1940 census.

The acts are sometimes referred to as the “Freeze Acts.” The acts provide in clear and unmistakable language that the federal census shall not operate to fill any offices in any county or municipality. These acts have been construed with respect to the first provision of the statutes dealing with salary of officers, by our former Court of Errors and Appeals. The court- held that the term “officer” includes “elective officer” within the intendment of these acts. See Crater v. County of Somerset, 123 N. J. L. 407 (E. & A. 1939); Sutphen v. County of Somerset, 123 N. J. L. 414 (E. & A. 1939); Vail v. County of Somerset, 123 N. J. L. 415 (E. & A. 1939). It is quite clear that the term “offices” in the second paragraph is given the same interpretation as the term “officers” in the first paragraph, and, therefore, includes elective offices such as those under consideration.

It is true, of course, that the legislative intention to alter the essence of a prior act must be expressed in language admitting of no reasonable doubt of the purpose. See Crater v. County of Somerset, supra, and the cases cited therein at page 414. However, the legislative intent is clearly manifested in R. S. 40 :11-17 and N. J. S. A. 40 :11-17.1.

It; might be pointed out that R. S. 40:11-17 and N. J. S. A. 40 :11-17.1 were amended in 1947 and 1948 to exclude certain officers from the operation of the acts. However, these amendments do not affect the offices and officers under consideration.

It is agreed that the 1950 census is not operative, so that the 1940 census is the only one under consideration.

Accordingly, the complaint will be struck and final judgment entered for defendants.


author: Davidson, J. S. 0.

text:
    SUN OIL COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. CITY OF CLIFTON, A MUNICIPAL CORPORATION OF NEW JERSEY, WALTER E. ALBRECHT, BUILDING INSPECTOR OF THE CITY OF CLIPTON, AND WILLIAM A. MILLER, CITY CLERK OF THE CITY OF CLIFTON, DEPENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 2, 1951.

      11 [essrs. Gollesler and Johnson, attorneys for plaintiff.

      Mr. John G. Dluhy, attorney for defendants.
   Davidson, J. S. 0.

This is an action in lieu of prerogative writ, plaintiff seeking to set aside a resolution of the governing body of the City of Clifton which denied it a zoning variance recommended by the board of adjustment. As collateral relief, it seeks the issuance of a building permit for a gasoline station and renewal permits for the maintenance and operation of gasoline pumps.

There is no substantial dispute of fact. Briefly, plaintiff, on November 20, 1946, entered into an agreement to purchase property at the northwest corner of Clifton and Getty Avenues, Clifton, zoned as Business “B”, which contract set forth plaintiff’s intention to use said premises as a gasoline service and filling station and was expressly conditioned upon plaintiff’s ability to secure all necessary permits and licenses to erect, install, maintain and operate said station. Pursuant to the provisions of an ordinance (No. 2040), which prohibited motor vehicle service stations in business districts without permission from the municipal council, plaintiff, on February 5, 1947, made such application to said council; the same ordinance required approval by the chiefs of the fire and police •departments, which certificates plaintiff obtained.

On February 11, 1947, the ordinance (No. 2040) was invalidated by the Court of Errors and Appeals, so there was no zoning prohibition in force and no reason for plaintiff to do more than submit its application for a building permit direct to the building inspector, accompanied by the necessary tank .and pump permits.

On February 18, 1947, the municipal council, after public hearing, adopted a resolution approving plaintiff’s application “for permission to install three 2,000 gallon tanks and four pumps, for a drive-in gasoline station on the premises known as the northwest corner of Clifton and Getty Avenues, Clifton, New Jersey (Business Zone)” (such permission being required under licensing ordinance No. 151), and on February 19, 1947, plaintiff was issued three permits for the installation of public gasoline tanks and four permits for the operation and maintenance of gasoline pumps, paying the fees therefor, all of which were annually renewed until April 1, 1950, when the clerk refused further renewals pending termination of litigation-.

On February 26, 1947, plaintiff received permission to break the curb in front of the premises and on the same day applied to the building inspector for a building permit, submitting plot and building plans, but the building plan was rejected for the reason that it did not comply with the provisions of the building code, in that the proposed walls were but eight inches in thickness, whereas the code required 12-inch walls. The inspector testified, that in view of the council approval, he would have issued the permit as a matter of course if the building plan had conformed to the code and no federal restrictions were effective. The inspector issued a certificate approving the plot plan with regard to curb cuts, driveways, building location and tanks, but expressly set. forth that “no actual building permit will be issued until plans have been examined by me and are made to coincide in every respect to our building laws and ordinances and a Civilian Production Authority permit is submitted for said building.”

Construing this qualified certificate of plot plan approval as a building permit, plaintiff took title to the premises on March 10, 1947, and the following month cut curbs and installed tanks. Up to this point, there was no valid zoning prohibition against gasoline stations in business zones, but on March 6, 1947, the municipal council amended the zoning ordinance and prohibited motor vehicle service stations in said zones—it follows that no building permit for such use could thereafter issue without the grant of a variance by the governing body after appeal to. the board of adjustment under the ordinance.

A municipal ordinance (No. 2390) was passed October 21, 1917, prohibiting the grant of permits for a gas tank or pump unless there has been a full compliance with all ordinances, and a new zoning ordinance covering the entire municipality, which also prohibited gasoline service stations in business zones, was passed on January 3, 1950.

Plaintiff never sought permission for construction from the Civilian Production Authority and, although the federal regulations restricting civilian construction expired on June 1, 1947, except for the renewal of its pump permits, took no further action until April, 1949, when it again applied for a building permit and presented plans. The application was refused because the building plans did not comply with the building code. Corrections and suggested changes were made in the plans and the application was again submitted to the building inspector on August 12, 1949, when a permit was denied by reason of zone variance.

On February 23, 1950, plaintiff applied to the zoning board of adjustment which, after public hearing, recommended to the governing body that plaintiff’s request for a variance to permit the erection of a gasoline service station be granted, but the municipal council, by resolution adopted July 6, 1950, denied the variance.

Plaintiff contends that denial of the variance by the municipal council after recommendation thereof by the board of adjustment was arbitrary, unreasonable and capricious. This contention is primarily based upon its construction of the building inspector’s certificate of qualified approval (of the plot plan only) as a formal building permit, although it also contemplates the original approval of the council for the issuance of tank and pump permits, its expenditures relying upon the building inspector’s qualified certificate, including fees for renewal pump permits, and the grant of a variance to Atlantic Refining Company in December, 1950, under substantially similar circumstances.

This is not a situation where one in possession of a building permit is unable to proceed without approval of a governmental agency or until such agency’s restrictions have been removed—the fact is that plaintiff never had a building permit at any time, nor was it ever entitled to receive one, and the qualified certificate of approval of the plot plan issued by the building inspector cannot be construed as such, for there was no compliance with the building code until April 12, 1949, the use of the property as a gas station having been prohibited by ordinance since May 6, 1947. Plaintiff voluntarily chose, upon its own responsibility, to construe and rely upon the approval of the plot plan as a building permit and made expenditures, including pump permit renewal fees. The grant of the variance to Atlantic Refining Company does not sustain plaintiff’s contention—’the respective properties are not comparable, for the conditions are dissimilar; they are situated on entirely different streets and are more than a half-mile apart.

The approval of the council on February 18, 1947, granting permission for the installation of tanks and pumps on plaintiff’s property was, in my opinion, effective only as to the issuance of tank and pump permits under the licensing ordinance —motor vehicle service stations in business zones were not then prohibited by ordinance and the council could not usurp the office of the building inspector.

R. S. 40:55-39 (d), as amended, empowers the board of adjustment to “recommend in particular eases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted ' against such structure or use. "Whereupon the governing body * * * may, by resolution, approve or disapprove such recommendation.” The only statutory restriction upon the governing body is also contained in the foregoing sub-section and provides that “no relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantiallv impair the intent, and purpose of the zone plan and zoning ordinance.”

The resolution of the board of adjustment is merely recommendatory and the courts will not interfere in the absence of fraud or abuse of discretion. Pennington Courts, Inc. v. Board of Adjustment of the City of Passaic, 7 N. J. Misc. 1037 (Sup. Ct. 1939) ; Aschenbach v. Plainfield, 121 N. J. L. 598 (Sup. Ct. 1939); Schaible v. Board of Adjustment of Millburn Twp., 134 N. J. L. 473 (Sup. Ct. 1946).

The statute provides for an independent determination by the. governing body. It does not follow that once the board of adjustment has recommended, the governing body must, pro forma, approve. Verniero v. Board of Commissioners of the City of Passaic, 134 N. J. L. 71 (Sup. Ct. 1946).

Plaintiff, not having a building permit, was bound by the subsequent enactment of the zoning ordinance which controlled its property use. Sun Oil Company v. Bradley Beach, 136 N. J. L. 307 (Sup. Ct. 1947); Socony-Vacuum Oil Co., Inc. v. Mt. Holly Twp., 135 N. J. L. 112 (Sup. Ct. 1947); Eastern Boulevard Corp. v. Willaredt, 123 N. J. L. 269 (E. & A. 1939).

Apparently plaintiff received no notice of the council meeting at which the variance was denied, but no provision of the statute which requires such notice or public hearing has been indicated and the record being barren of what then transpired, there is no basis for a substitution of the court’s judgment for that of the governing body.

It seems unnecessary to consider defendants’ contentions that plaintiff was guilty of laches by reason of protracted delay in the submission of building plans which conformed to the code, and having accepted prior denials, had waived any rights which might have existed prior to its final application to the building inspector on August 12, 1949.

Judgment, accordingly, will be for the defendants.


author: Dokxhjs, J. S. 0.

text:
    JOSEPH CLIFFORD, ADMINISTRATOR AD PROS. OF THE ESTATE OF JANE VALERIE CLIFFORD, DECEASED, PLAINTIFFS, v. SADIE McCLOSKEY AND HARRY McCLOSKEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 3, 1951.

      Mr. James M. Davis, Jr., attorney for plaintiffs.

      Mr. TIarold T. Parker for defendants (Messrs. Parker, McOay *& Griscuolo, attorneys).
   Dokxhjs, J. S. 0.

This matter is before this court on defendants’ motion for a new trial as to damages only on the ground that the verdict rendered wa,s excessive.

The case involved the death of a six-year-old girl who was killed when run over by defendants’ bus. At the conclusion of the testimony, the case was submitted to the jury which returned a verdict in favor of plaintiff in the sum of $5,000. The testimony showed that the girl left surviving her a mother, father, sister and a brother who was born subsequent to the girl’s death.

Defendants, in their brief, cite a number of eases in which verdicts were rendered in the ease of a minor, not a prodigy. The accepted damages in these cases appear to be somewhat lower than the verdict in the instant case, although not markedly lower. A thorough examination of these cases discloses that these cases wore decided in the years when the purchasing power of the dollar was greater than it is today.

In more recent cases such as McStay v. Przychocki, 9 N. J. Super. 365 (Law Div. 1950), affirmed 10 N. J. Super. 455 (App. Div. 1950), our courts have made allowance for the fluctuation in the value of the dollar, with the changing economic trends in recent years. It may well be that the jury considered the deflated value of the dollar. Judicial notice thereof may be properly taken and the jury, in the exercise of its judgment, could have properly considered it in assessing the damages against defendant. In these days of the high cost of living and consequent decrease in the purchasing power of the dollar, one cannot well overlook or ignore the effect of such economic conditions when called upon to determine, as the jury did here, the amount of damages. Nusser v. United Parcel Service of New York, 3 N. J. Super. 64 (App. Div. 1949).

In estimating the amount of injury to the next of kin, the jury should, and doubtless did, consider the various probabilities, which in the course of years, might determine the pecuniary advantages which would accrue to the next of kin, if this young girl had not been killed: the normal life expectancy of the decedent, her physical, mental and moral characteristics, her likely earnings and many more prospective advantages.

Under the circumstances of the present case, although the verdict may be high, it is not so excessive as to justify the implication that it was the result of mistake, partiality, passion or prejudice, and, therefore, I do not feel that I can substitute my judgment for that of the jury.

The motion is denied.


author: William J. Bbenitan', Je., J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES R. LAMOREAUX, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1951
    Decided April 18, 1951.

      .Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Walter S. Keown argued the cause for appellant.

      Mr. Benjamin Asbell argued the cause for respondent (Mr. Mitchell E. Cohen, attorney).
   The opinion of the court was delivered by

William J. Bbenitan', Je., J. A. D.

The defendant, Lamoreaux, a house builder, seeks by this appeal to reverse his conviction in the Camden County Court upon an indictment charging him with having obtained $1,100 from one Sabo by false pretenses, contrary to R. S. 2:134^1.

Two of the rulings of the trial court present errors which make it plain that the judgment cannot stand.

In the first place, the State’s proofs were insufficient to negative any of the pretenses charged in the indictment, and the trial court, upon Lamoreaux’s request at the close of the State’s case, ought to have granted his motion for a judgment of acquittal.

The indictment charged that Lamoreaux knowingly and designedly did falsely pretend to Sabo on different days between Fovember 26, 1949 and January 28, 1950, that he would immediately commence construction of a house for Sabo on a certain lot and that he had sufficient finances, materials and labor available to do so.

False pretense has been familiar since 30 Geo. II, c. 24 from which our statute was largely drawn. The statute makes indictable certain frauds upon individuals which were not indictable by the common law. A false pretense under the statute is such a designed misrepresentation of an existing fact or condition as induces the party to whom it is made to part with his property. It must not be promissory in character but must be a representation of something which at the time is untrue. State v. Tomlin, 29 N. J. L. 13 (Sup. Ct. 1860); 2 Wharton, Crim. Law (12th ed. 1932), p. 1699. Tho statute has a broad reach, but it is intended to punish a crime and is not to be used as a means of enforcing civil liability. Its range is not so wide as to embrace every representation which has heretofore been understood as only creating civil liability. Cf. Robinson v. State, 53 N. J. L. 41 (Sup. Ct. 1890). A misstatement of the state of one’s mind is a misstatement of fact upon which an action in fraud and deceit may be predicated (Roberts v. James, 83 N. J. L. 492 (E. & A. 1912)), but by virtually unanimous authority it is not a false pretense exposing one to criminal prosecution under 30 Geo. II, c. 24, and its American counterparts. See English and American cases collected in Wharton, supra, p. 1732. The alleged wilfully false representation charged to Lamoreaux in this indictment, that he “would immediately commence construction,” therefore does not charge a crime.

The allegation that he knowingly misrepresented that he had sufficient finances, materials and labor to build the house does, however, charge designed misrepresentation of existing facts or conditions and allege the crime of false pretense under the statute.

The State was not bound to prove that each of the pretended facts as to finances, materials and labor was untrue. If a single false pretense coming within the statute is proved and appears to have been operative in inducing the defrauded party to part with his money, it is immaterial that other false pretenses laid in the indictment are not proved. State v. Haines, 92 N. J. L. 642 (E. & A. 1918); Cunningham, v. State, 61 N. J. L. 666 (E. & A. 1898); State v. Appleby, 63 N. J. L. 526 (Sup. Ct. 1899). The critical inquiry, then, is whether the State’s proofs sustained the State’s burden to show ihat Lamoreaux in fact lacked finances, materials or labor at the times he represented he had them.

The negative may be proved circumstantially and inferentially, but the evidence must point to a strong probability of the falsity of the pretense. Wharton, supra, p. 1724. Hero the only evidence on the part of the State to negative the pretenses charged was the testimony of Sabo and his wife that after they paid Lamoreaux in reliance upon his representations, he did not build the house. That Lamoreaux did not begin the work is plainly not of itself evidence which points to a strong probability that he had no finances or materials or labor at the times he is charged with falsely pretending that he had. See State v. Riley, 65 N. J. L. 624 (E. & A. 1901); cf. State v. Bennett, 5 N. J. Misc. 318 (Sup. Ct. 1927), affirmed 104 N. J. L. 186 (E. & A. 1927).

Secondly, in the absence of sufficient evidence to sustain the burden of proving the negative, it was error to admit the testimony of other persons that Lamoreaux prior to his transactions with Sabo obtained money from such other persons upon representations identical in character with those made by him to Sabo and that he failed in each case to build the house he promised. That Testimony was offered by the State solely for the purpose of showing criminal intent. Proof of other acts from which the intent may be gathered is competent if part of a system with the act on trial, but is incompetent where, as here, the act is not conceded and there is insufficient evidence from which the jury may find the act to have been done. State v. Rogers, 8 N. J. Super. 64 (App. Div. 1950). The State had the burden first to prove every element necessary to constitute the crime laid in the indictment, and the evidence offered as relevant to the question of intent was not competent until the State had made out a prima facie case of guilt of the crime charged. MacEwen v. State, 71 A. 2d 464 (Ct. Appeals, Md., 1950).

There are other points in appellant’s brief which direct our attention to what appear to be fatal errors, particularly those bearing on the restrictions imposed upon counsel’s cross-examination of the State’s witnesses, but it is not deemed necessary to discuss them.

Reversed.