author: Grey, V. 0.

text:
    Arthur C. Abele v. Mary A. Abele.
    [Filed December 9th, 1901.]
    1. A complainant had been a resident of the state for two years, and defendant, a non-resident, filed a cross-complaint seeking divorce on the ground of desertion. Complainant refused to move a hearing on his bill and it was dismissed.-—Held,, that defendant was not deprived of her right to relief on the cross-bill, one of the parties being a resident.
    2. On decree of divorce for a wife of middle age and in good health, and in great part supporting herself, in the absence of any reason showing why permanent alimony should -be allowed, an order for the same will not be made.
    3. In a decree of divorce at the suit of a wife, there may be an allowance for the maintenance of a minor child by the father.
    4. Where, on divorce at the suit of a wife, it appears that there is a minor daughter, and that the father has been content to live without any association with the child for six years, and the character of the wife is not attacked, the wife will be awarded the custody of the child, the father having the right of visitation.
    On. bill and answer. On cross-bill and answer and proofs.

      Mr. Frederick A. Rex, appeared for Arthur C. Abele, who is complainant in the original bill and defendant in the cross-bill.

      Mr. Henry F. Sioclcwell and Mr. Henry 8. Scovel, appeared for Mary A. Abele, defendant in the original bill and complainant in the cross-bill.
   Grey, V. 0.

The cause coming on to be heard, the complainant’s counsel refused to move the hearing on the original bill. The counsel fo,r defendant thereupon moved that the original bill be dismissed and that the hearing of the cross-bill proceed. Which motion was granted.

Testimony was then offered in support of the allegations of the cross-bill. The witnesses were cross-examined by the counsel for the husband, who is complainant in the original bill .and defendant in the cross-bill.

On the conclusion of the evidence the cause was argued by counsel for the parties and the vice-chancellor gave the following opinion:

The Vice-Chancellor—I do not care to hear counsel for the cross-bill in reply, because it seems to me the case made on the proofs justifies a decree for the wife.

The first suggestion made by the defendant in the cross-bill is that Mrs. Abele is a non-resident of this state and that the original bill having been dismissed, she is not justified in applying for affirmative action on her cross-bill under our statute.

If that were so, no cross-bill could be maintained against a complainant resident of this state who had invited a non-resident defendant into court. As he could dismiss his own bill at any time, or refuse to present it, as in this case, it would remain at his option whether or not any relief could be given to a defendant who has a good cause of action on the cross-bill. The resident complainant might experimentally come into court, presenting charges of most disgraceful conduct, as has been done in this case. Being met with denials and counter charges which he knew he could not meet, he could then refuse to proceed on his original bill and object to the defendant having any relief on the cross-bill, because she was not a resident of this state. The complainant in the original bill invited this defendant into court and charged her with the repeated perpetration of the crime of adultery. He invited her to make any defence which could be made to these charges. She was entitled to answer^ and to set up in her answer, any defence which might refute his accusations, and to make counter charges against him of any conduct which might entitle her to a divorce. Her right to insist upon a divorce by way of cross-bill because of his willful, continued and obstinate desertion, cannot be taken away by his attempt to prevent the disclosure of their true relation by abandoning his bill.

The statute is clear, jurisdiction attaches in all cases

“where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of two years, during which such desertion shall have continued.” Divorce act, section 39, Gen. Stat. p. ms.

The undisputed evidence shows that the original complainant, the husband, was a resident of this state at the time of the filing of his bill and at the time of the filing of the cross-bill; that he came to and obtained a bona fide residence in the city of Camden more than four years ago; that nearly three years ago he was elected a member of Camden city council, an office which he presently holds. The only remaining jurisdictional fact is whether, during the term of twd years preceding the filing of the bill and cross-bill, a statutory desertion has continued. This element I will discuss hereafter, but for the purpose of settling the jurisdictional question .1 may say now that I find as a fact that a statutory desertion during the period named has been proven. ■

The result is that jurisdiction in this eoxirt attached to hear and determine this cause. This is true whether the husband is classed in the category of complainant, which he was in the original bill, or as defendant, which he is in the cross-bill. The statute gives jurisdiction over him in either capacity. Jurisdiction over the subject-matter having been shown and having been established over the parties in the cause by the procedure, it cannot be defeated by the voluntary refusal of either party to appear. Each party is a complainant, either may proceed. The jurisdiction of the court in this cause is fully shown.

The remaining question is whether the defendant has, under the cross-bill, shown a willful, continued and obstinate desertion by the husband for the period of two years.

It is impossible to have heard the testimony in this cause without being satisfied that for more than five years there has been no affection between these parties. Their married life, when they lived together, was jotted with quarrels and abuse by the husband of the wife, both of word and actual physical violence. The particular incident of their separation, when the desertion began, was in the year 1895, when in a quarrel he pushed her down cellar, broke in a door and was so violent that he greatly frightened her, so that she called out of the front window and brought in the neighbors and also a policeman. The violence is proved only by the testimony of the wife, but the neighbors who came in on the outcry, saw the broken door, the confusion in the house and the terrified condition of the wife, and all tell the same story. When they appeared and the policeman was mentioned, Mr. Abele was there, and he evidently had such consciousness as to the occasion for the presence of a policeman, that he was unwilling to stay. He said to the neighbors, speaking of his wife: “You know I would not hurt her.55 But he had not enough faith in his own declaration to- remain until the policeman arrived, so he disappeared by going out the back way. He has never lived with his wife since.

He knew that if he did not do something to support her and her child he would be liable to be arrested. At various times he made contributions for that purpose, some voluntary, and some after legal steps against him were taken or threatened. None of these payments, as far as I can gather from the evidence, appears to have been made willingly. Nor do I think the testimony leaves any doubt that they were made under a sense of compulsion, and not because he desired to support his wife and child, or because he had a sense that the obligation of the marriage tie put that duty upon him. Support, even if bountiful, is not the only marital duty which a husband owes to a wife. Non-support is not desertion. Neither is support alone a full performance of the marriage obligation.

It is impossible to hear this testimony without being satisfied that Mr. Abele willfully and of his own mind, -without compulsion, left the company of his wife and broke up their connubial relation. All the testimony shows that he never came to live with her again and never desired to do so. The neighbors and Mrs. Abele’s mother, who lived with her every winter since, all prove this. The remittances of money which Mr. Abele made were not brought personally to the wife, but they were sent to her by check. In all his conduct Mr. Abele seems to have done everything to avoid personal association with his wife. His separation from her has been willful, and has continued for more than four years. It has also been obstinate with a determination to abandon her. The testimony shows that though often asked to return he has refused to come back and live with her. He even told her to get a divorce.

The only incident which suggests any break in the continuity and obstinacy of the desertion is the declaration from Mrs. Abele that Mr. Abele did once say to her that he would offer her a home. Immediately that the offer was made she inquired where, and he told her that it was in the house where, he lived, and that he had a housekeeper there. There was an immediate dispute, in which Mrs. Abele made known to Mr. Abele that she believed that his relations to his housekeeper were such that his wife should not be expected to come into his house while the housekeeper remained there. The evidence in this ease shows that Mr. Abele was not so well placed in life that he was justified in maintaining a housekeeper in the house where Ms wife was to reside. His wife had always been Ms housekeeper when they formerly resided together. The good faith of his offer may readily be tested by Ms conduct when it was brought to his knowledge that his wife believed that the housekeeper woman was in Mr. Abele’s house in a wrongful position. He did not offer to arrange with the wife about the matter or to explain that she was mistaken. He did not even consider his wife’s statement, but merely said, in effect, that if she came to his house for a home she must live in a place where, rightfully or wrongfully, she believed another woman was occupying the place of her husband’s mistress. Naturally Mrs. Abele said she would not go there. It is a fair inference to believe that the husband did not expect her to go to his house under such circumstances.

The invitation by the husband to a wife whom he has wronged to come to his house is not one which depends upon a form of words. In this case the evidence shows that the act of separation was Mr. Abele’s act. He abused his wife and left their home. He came into this state, established a separate home for himself, and took for his housekeeper a woman who his wife believed was his mistress. He then, after several years, and while legal proceedings were continually threatened to compel support, invited his wife to his new home where his housekeeper was, and where he told his wife she was, to stay. It is quite plain that when the wife indicated that she had doubts about this woman with whom her husband was living, if he had any sincere desire to have the wife come back, he would have proposed some explanation or some arrangement. But he did not propose any. He evidently did not care for her return. That is not the attitude which a husband should take who had abused his wife,-and so frightened her that she had to call in the neighbors, and whose bed and board he had for years forsaken.

The obstinacy of the desertion has not been overcome. The testimony justifies a decree for divorce, in favor of the wife, because of willful, continued and. obstinate desertion on the part of the husband, which appears to have existed for some five or six years preceding this suit.

There is another element. There is a child, Helen Abele, some ten or eleven years of age, who has been under the care of the mother since the desertion by the father. No provision has been made for the child’s support by the father, except the contribution of $o per week which he has made at various times, but with intermissions. The wife appears to be a woman of middle age and in good health. There is no affection between these parties. They have lived apart for years, the wife, in great part, supporting herself. She is quite young enough to expect to be married again, and no special reason is shown which calls for a decree alloydng permanent alimony.

The maintenance of the child of the marriage stands on a very different footing. That duty belongs to the father, and, under the twenty-third section of the Divorce act, should be enforced by the decree in this suit. There should be an allowance for the maintenance of the child by the father until the further order of the court. If counsel want to be heard as to amount I will hear them now.

Mr. Rex—Would your honor make a decree that the father should have the child and educate and support it ?

The Vice-Chancellor—I would not, because he has, for some six years or more, been satisfied to live without association with the child. Nothing in the evidence even suggests that he has any more affection for the child than for the wife. The character of the wife stands unimpugned. The child is a girl and has been in her mother’s charge ever since she was born. It is altogether fitting that the mother should have the custody and care of her. Of course, the father has a right of access and visitation. I will take care of that.

Mr. Rex—I suggest $3 per week for the child’s support.

Mr. Stockwell—I think she ought to have at least $5 per week.

Argument was then submitted by counsel on the point.

The Vice-Chancellor—It is quite evident that the mother has heretofore consented to the acceptance of $5 per week as a contribution from the husband for.the support of both herself and her child. The child, being eleven years of age, is approaching a period of time when she will need education, and probably be at greater expense for clothes. The father ought to be cordially willing to furnish to the child all that is necessary for her support and education, and he seems to be fairly able to do so. The amount here allowed is not final. Four dollars per week is presently no more than he ought to contribute to maintain his child. I will advise an order that he pay $4 per week until the further order of the court. The order should contain a clause that the father shall have the privilege of access and visitation to the child, on such terms as counsel may agree. If counsel are unable to agree, the court will formulate such an order.

Mr. Stockwell—-There should be some provision for counsel fee.

The Court—I will allow $15 additional fee, with the costs of the suit.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Horatio N. Burroughs et al., executors, &c., of Aaron T. Burroughs, v. William M. Jamieson, administrator of Thomas Downing.
    [Filed January 6th, 1902.]
    1. Two legacies, of $500 each, were given, one to Thomas the other to Sarah, payable after the death of the testator’s widow. In case Sarah predeceased the widow, her legacy was given to Thomas. This provision follows: “In case, however, both shall die before the decease of my wife, then it is my will that the said sum of $1,000 be taken as part of the residue of my estate and divided as hereinafter provided for.” Thomas survived the testator, but died before the widow. Sarah survived her.— Meld, the legacy given to Thomas vested in him at the testator’s death and could only be divested by the death of hoth Thomas ancl Sarah before the widow, taking both legacies, the whole $1,000, into the residue. The death of both did not happen, and, consequently, there was no divesting of Thomas’ legacy. His representatives are entitled to it.
    2. Where a gift by will is phrased in language which is clear and conclusive, expressing a single meaning, without ambiguity, and not impossible of fulfillment, a court will not, under profession of construction, vary the expressed intent of the testator by interpolating an additional condition.
    'On bill ancl answer.
    This bill is filed by the complainants as executors of the will of Aaron T. Burroughs, asking the instruction of this court as to the meaning of their testator’s will, affecting a bequest to Thomas Downing, contained in the nineteenth item. The bill sets out portions of the will whereby the testator disposes of nine money legacies to the nephews and nieces. Each legacy is given in terms which vest it in the legatee, but the enjojunent of it is postponed until the decease of the widow of the testator. One legacy to his nephew Horatio N. Burroughs of $6,000, directs that in case he shall predecease the widow, he may bequeath it by will, or if he die intestate, that it shall go to his heirs. All the other eight legacies to the nephews ancl nieces provide that if tlie legatee shall predecease the widow, leaving issue who shall survive the widow, the issue shall take; if the legatee predecease the widow leaving no issue who survive her, the legacy shall fall into the residue of the testator’s estate.
    The legacy in dispute is given in the nineteenth paragraph of the will in these words:

      “Nineteenth. I give and devise to Thomas Downing and to his sister, Sarah Elizabeth Downing, to each of them, the sum of five hundred dollars to be paid in one year after the decease of my wife with interest thereon from the date of her decease. In case Sarah E. Downing should die before the decease of my wife, then it is my will that the said Thomas Downing have that which is hereby given to the said Sarah E. Downing. In case, however, both shall die before the decease of my wife, then it is my will that the said sum of one thousand dollars be taken as part of the residue of my estate, and divided as hereinafter provided for.”
    The twentieth paragraph of the will is the residuary clause and is in these words:

      “Twentieth. All the rest, residue and remainder whatsoever and wheresoever the same may be, I give, devise and bequeath in equal shares to my nephews and nieces who are hereinbefore named as legatees. • In case, however, any of my said nieces or nephews shall die before the decease of my wife leaving lawful issue, then I give the share of the residue of my estate which would belong to such nephew or niece, if living, to such of his or her lawful issue as may be living at the time of my wife’s decease. In case, however, that at the time of the decease of my wife any of said nieces or nephews shall have died, and there be no lawful issue of such living at the time of the decease of my wife, then it is my will that the share of the residue of my estate which would belong to such niece or nephew, if living, shall be divided between such nieces and nephews as are living and the living issue of such as shall have died, said issue to receive the share which their parent would have been entitled to and the nephews and nieces receiving share and share alike, after giving said living issue the share which their parent or parents would have been entitled to, if living.”
    The bill shows that the testator died in August, 1881; that his will was probated in September of that year; that Sarah A. Burroughs, the widow of the testator, died in the year 1900, and that the legatee, Thomas Downing, predeceased the widow, dying in the year-; that the legatee, Sarah E. Downing, still survives; that letters of administration upon the estate of Thomas Downing have been issued to the defendant, William M. Jamieson, who claims from the complainants, as executors, the payment of the $500 legacy bequeathed to Thomas Downing.
    The executors allege that they are unable to determine whether this legacy has, under the terms of the will of their testator, Aaron T. Burroughs, become a part of the estate of Thomas Downing, ox whether the latter’s interest has, by reason of his predeceasing the widow, fallen into, and become part of, the residue of Aaron T. Burrough’s estate, but they assert that they are advised that the Thomas Downing -legacy has,'in fact and in law, become part of the residue of their testator’s estate.
    They pray an interpretation of Aaron T. Burrough’s will in the particulars named, and direction to whom to pay the Thomas Downing legacy.
    The defendant, the administrator of Thomas Downing, admits, in his answer, all the allegations of the bill, and insists that, by the true meaning of the will of Aaron T. Burroughs, the legacy to Thomas Downing was vested absolutely; that it was not divested by his predeceasing the widow of the testator, and that it is now payable to the defendant as the administrator of Thomas Downing.
    The cause was heard on bill and answer. At the hearing it appeared that the whole will of Aaron T. Burroughs should be before the court, and, by consent of both parties, the original was produced from the secretary of state’s office and accepted in evidence, without proof.

      Mr. Linton Batterthwait, for the complainants.

      Mr. William M. Jamieson, pro se.

   Grey, V. C.

An examination of the whole will of the testator, Aaron T. Burroughs, shows that after directing the pajunent of his debts he makes several special provisions for his widow, notably the use of the homestead, and its equipment and annuity of• $500, all during her natural life. He directs the sale of the residue of his real estate, and that the proceeds, after the payment of several minor gifts, shall be invested; that the income therefrom shall he used to pay the widow’s annuity, and that the residue shall be accountable for the payment of the legacies after her death and the purposes of the will. Then follow several money legacies to boards of missions and after them the several legacies to nephews and nieces set forth in the bill of complaint.

There is but a single question in dispute in this case; that is, did the legacy given to Thomas Downing divest because ho died before the death of the widow of the testator ?

The words of the nineteenth item giving the legacy are words of present gift. The time of-enjoyment only is postponed. Thomas survived the testator. The legacy vested in Thomas on the testator’s death. It then became an asset of Thomas Downing. The words giving this legacy are within the settled rule that where the words of gift are in prcesenli, and the time of enjoyment only is postponed, the legacy vests immediately upon the death of the testator. Gifford v. Thorn, 1 Stock. 705 (Court of Appeals).

It is admitted by the complainant’s counsel that the effect of the words of bequest to Thomas gave him a vested interest in his lcgacjr, but ho insists that, by the true 'Construction of the whole will, the legacy to Thomas was subject to be divested, not only in ease both Thomas and Sarah predeceased the wife of the testator, but in case Thomas only should so die.

Neither the nineteenth paragraph nor any other part of the will contains any provision defeating the gift to Thomas in case he alone predeceases the wife of the testator. He gave to Thomas and to Sarah—$500 to each—to be paid in one year after the decease of his wife. He had under consideration the possibility of the death of these legatees before the death of his wife, and he declared that in case that should happen, his will was that' if Sarah so died, Thomas should have Sarah’s share also, and that in case both should predecease his wife, then the whole $1,000 (both legacies) should fall into the residue.

Obviously the testator did not intend that Thomas’ legacy should fall into the residue in case he alone predeceased the widow. This is conclusively shown by the fact that he directs the falling into the residue to take place only in case both Thomas and Sarah should predecease the widow, and then that both their legacies, the whole $1,000, should fall in. As, in fact, Thomas only bas so died, and Sarah survived the widow, nothing in the will or in the subsequent event has divested Thomas’ legacy. On this point this case is controlled, if it needs a precedent, by the ease of Neilson v. Bishop, 18 Stew. Eq. 476, where a legacy was given to two, to revert in case of the death of both without issue. It was held there could be no reverter on the death of one only.

The complainants’ counsel insists that this constriiction is inconsistent with the general scheme of the will; that the whole will shows that the testator intended, after providing for his debts and an annuity for his wife, to have the rest of the estate accumulate, and the legacies to be paid to those who survived her, and that the legacies given to those who predeceased her should fall into the residue.

In my view the gift to Thomas is, on the point in question, too plainly expressed to be op.en to construction. The language used is clear and conclusive. It express a single meaning, without ambiguity. It was not impossible of fulfillment. Such a bequest needs no construction. The testator has himself plainly said what he intended. No court, under profession of the construction of his will, should defeat his expressed purpose by interpolating an additional or varying condition.

If speculation is to be indulged in to ascertain why the testator phrased the legacy in question as it appears in his will, a fair inference may be drawn which sustains the obvious meaning of the words used. The testator evidently intended to give Thomas more favorable consideration than Sarah, for he directs that if Sarah should predecease the widow, Thomas should take Sarah’s legacy, but does not reverse this and give Thomas’ legacy to Sarah in case Thomas should predecease the widow. As the will was originally drawn the limitation as between Sarah and Thomas was to the survivor of them, but the will was corrected in this particular at the time of its execution, as appears on inspection. It is not difficult to believe that, this matter being brought directly to the attention of the testator, he was willing to give special consideration to these two legacies by directing their divestiture only in case both legatees should predecease the widow. But no explanation is needful. He has plainly said what he intended, and it is in no way necessary that Ms will should state any reason why he had the intention so clearly expressed.

These two are not the only legacies which vary from the eight gifts to nephews and nieces, which aTe phrased, in almost uniform language, to fall into the residue in case the legatee predeceases the widow leaving no issue, and which the complainants assume constitute the scheme of the will. The legacy to Horatio N. Burroughs is also an exception, for in case he predeceased the widow, Ms legacy was made payable to his legatee, or if he died intestate, to his next of kin.

The complainants should pay the legacy to the defendant as the representative of the estate of Thomas Downing.


text:
    The Camden and Trenton Railway Company v. Henry C. Adams et al.
    [Filed January 18th, 1902.]
    1. An agreement contained a clause for the conveyance of a right of way through a lot of land on one side of a railroad, and for the purchase of a piece of land on the other, not defining what estate should be conveyed in the piece to be purchased.—Held, under the circumstances shown, an estate in fee should be conveyed.
    2. When the terms of a written agreement express a clear and definite meaning, which is neither absurd nor impossible, there is no such latent ambiguity as will render parol proof of the precedent negotiations of the parties admissible.
    3. The handing of a deed to an agent of the grantee, in order that he may submit it to his principal to see whether or not it conforms to the terms of an agreement which it is intended to fulfill, is not a delivery and acceptance of the deed.

      4. Where a contract for the sale of land is made by the husband only, a decree for specific performance compelling the wife to convey her inchoate dower in the land, will not be made.

      On bill for specific performance, answer and proofs.

      Mr. Clarence T. Atkinson and Mr. Samuel W. Beldon, for the. complainant.

      Mr. Charles K. Chambers, for the defendants.
   Grey, V. C.

(orally).

I do not care to hear counsel for complainant in reply. I have examined the agreement set forth in the bill to ascertain whether any meaning eonld be given to it different from that which appears to me to be obvious on its face, and whether there was even such doubt about it as ought to lead me to admit testimony explanatory' of it or require further study of the questions discussed. The case may be decided now with full justice to its merits. *

The bill is filed by the Camden and Trenton Railway Company against Henry C. Adams and wife, asking a decree that complainant may have the strip of land, described as containing seventy-one hundredths of an acre, conveyed to it because the complainant alleges the defendants are bound so to convey, by an agreement, a copy of which is annexed to the complainant’s bill, and the original of which has been produced and offered in evidence. The agreement is in the form of a receipt signed by the defendant, and is in the words and figures following:

“Nov. 19, 1900.
“Received of Vandergrift Construction Company the sum of fifty ($50.00) dollars on account of right of way for laying of pipe across land on -west side of R. R. at Edgewater Park. Also the purchase of a piece of property on the east side of said Penna. R. R. at Edgewater Park, containing about 8/10 of an acre, as shown,on plans prepared by Penna. R. R. Co., for the making of an undergrade crossing at this point. The balance to be due under this agreement is seven hundred and fifty ($750) dollars to be paid on proper execution of deeds to Camden & Trenton Railway Company, which shall be not later than Jan. 1st, 1901.
“(Signed) Henry C. Adams.”

All the dispute there is in this case attends the agreement and its performance with relation to the purchase of the piece of property on the east side of the Pennsylvania railroad at Edgewater Park. There appears to be no dispute between the parties as to the description of the property, nor as to its location. The pleadings and the proofs and contentions of the parties are directed to differences between them affecting only the character and extent of the estate in the laird- which, under the terms of this agreement, the vendor defendant agreed to pass. He himself admits that the price named has been paid him in full. He has executed and delivered a deed which describes the property with accuracy. The description ■ and location as set forth in this deed are not objected to by the complainant. The dispute between the parties is that the defendant insists that the contract of sale is an undertaking to convey only a limited use of the lands, and he contends that by his deed he has conveyed all the estate he is obliged to 'grant. On the other hand the complainant says it is entitled, under the agreement, to the conveyance of a fee-simple estate in the lands. .

The only points argued have been the questions whether the original receipt agreement obliges the defendant to convey a fee-simple estate in the second tract referred to, on the east side of the Pennsylvania railroad, and whether the complainant has ratified the defendant’s construction of the receipt agreement by the acceptance of the deed conveying only a use of the property for street purposes.

The dead from the defendant was made and delivered under these circumstances: Mr. Clark, acting for the vendee, went to the defendant’s house with the deed already drawn to convey an estate in fee-simple in the second lot. Mr. Adams, the defendant, accepted the deed as accurately expressing his agreement to convey in every particular except the estate in the lands. This clearly appears, for Mr. Adams subsequently executed the deed as drawn, changing only-the character of the estate conveyed. Mr. Clark had not made the bargain for the lot and did not know anything about its terms, except that the lot was to be conveyed for the price of $700. His call on Mr. Adams was in the evening. He presented the deed and left it over night with Mr. Adams for execution.

The testimony does not show that Mr. Adams then and there, in Mr. Clark’s presence, examined the deed and made any objeclion to it; and it is not clear that Mr. Adams then knew, while Mr. Clark was present, that the deed conveyed an estate in fee. That evening Mr. Adams -took the deed to a scrivener, and in the absence of Mr. Clark, or anybody else representing the Camden and Trenton compamq he caused to be inserted in the habendum et •tenedum clause the following words:

“Subject to the full right of the grantors, their heirs and assigns, and of the general public to use it, the said described strip of land, as a street and thoroughfare forever, and they, the said grantee, their successors and assigns to use the said land for no other purpose.”

Mr. Clark testifies that his attention was called to this change the next morning, and he immediately objected to it. He testifies that he told Mr. Adams that he did not know what the terms of that agreement were, but that he would take this deed under protest as to the change, and that it would have to be subject to the inspection of the grantee to see whether it was satisfactory and in accordance with Adams’ agreement. Mr. Adams does not expressly deny that there was such a difference between the parties, nor does he claim that the deed was then and there finally accepted. He qualifies Mr. Clark’s statement by minimizing its ■force. The testimony of Mr. Clark, taken with the fact that the deed, as originally drawn and presented to Mr. Adams in behalf of the company, was a conveyance in fee, satisfies me that Mr. Adams knew that Mr. Clark came expecting and intending to purchase an estate in fee. Mr. Adams knew this when he changed the deed. It is entirely reasonable that Mr. Clark (being unacquainted with the details of Mr. Adams’ agreement) should, under the circumstances, have insisted that before the deed, as ■changed by the latter, was accepted as fulfilling that agreement, it should be submitted to the Camden and Trenton Eailway Company, to see whether or not it conformed to its terms. That was a perfectly natural condition, one which Mr. Adams might, with ■entire proprietjq have assented to. In view of the affirmative testimony of Mr. Clark, I believe Mr. Adams did assent to it. The testimony, considered in all its aspects, strongly indicates that Mr. Clark never had any authority to accept, as a performance of the agreement, the changed deed which Mr. Adams éxecuted, and his conversation with Mr. Adams disclosed to him this want of authoritj''. The result is that although the deed, as changed, physically passed from Mr. Adams to Mr. Clark, it was neither tendered nor received with any intent that, by its passage from one to the other, a delivery of it should be accomplished.

Almost immediately after Mr. Clark received the changed deed he submitted it to Mr. Mitchell Perkins, the secretary of the grantee, the complainant conrpany. No action was taken by the company, in either acceptance or refusal of the deed, for several months. Mr.. Adams did not ask any action. He did not change his position in any way upon the assumption that the deed conveyed only the use of a way and not a fee. The grantee company used part of the land, but under either construction of the obligation of the contract it might have done this. Mr. Adams had the use of the purchase-money. The delay of two or three months in applying for the correction of the deed has not subjected Mr. Adams to any disadvantage. When it was applied for he refused it, in terms which showed that no matter how early the application might have been made he would have insisted on his-construction of the original agreement, that it obliged him to convey only a rise for a street.

The defendant sought, under the claim that the terms of the contract of November 19th, 1900, were confused and ambiguous, to offer testimony to show, by proof of preceding negotiations, that it was not intended or agreed between the parties that Mr. Adams should convey an estate in fee-simple in the premises in question. In short, he claimed the right to show, by parol, that the dealings between the parties contemplated the conveyance of an estate as is passed by the deed which he has delivered; that the limitations expressed in the habendum clause, by which the deed passes only-a right to use “as a street and thoroughfare forever,” were just what the complainant dealt for and agreed to purchase.

It is settled in this state that written agreements which express a definite contract cairnot, in the absence of fraud, mutual mistake or 'illegality, be varied by parol evidence touching the preceding negotiations of the parties. Naumberg v. Young, 15 Vr. 331; Van Horn v. Van Horn, 4 Dick. Ch. Rep. 328 (Court of Appeals); Morris v. Kettle, 28 Vr. 221. If the contract, as written, is so ambiguous that its expressions are susceptible of more than one meaning, evidence of the accompanying negotiations is admitted in order to point out which meaning was within the intent of the parties.

The defendant’s answer sets up neither fraud nor mistake in the agreement. On the contrary he insists that the agreement, as drawn, obligated him only to convey a right to use for a street, and this he contends he has done by his deed which, he says, the complainant has fully accepted as performance of his agreement.

This brings us back to an examination of the original contract, to see whether there is such ambiguity on its face that it may not be interpreted within its own expressions and outbounds. As stated the contract deals with two pieces of property. The first one is the right of way and the second one is the purchase of a piece of property. The words on which the defendant bases his claim are these:

“Also the purchase of a piece of property on the east side of said Penna. R. R. Co., at Edgewater Park, containing about 8/10 of an acre, as shown on plans prepared by Penna. R. R. Co. for the making of an undergrade crossing at this point.”

The draftsman was evidently not an artist in drawing instruments of this character, but it is equally evident that he knew the difference between the grant of a right of way and the purchase of a piece of land. The contract, as signed by ’Adams, shows that when it obligated him to convey a right of way, it described the property as a right of way, and it may be fairly said that when it dealt with the second piece and said nothing about a right of way, but. is expressed in language such as is ordinarily used in the buying of land outright, it did not mean he should convey only a right of way. The contract says that Mr. Adams received the money for “the purchase of the piece of property on the east side of the Pennsylvania railroad at Edgewater Park.” These words of themselves amounted, under the circumstances, to an undertaking to convey a fee-simple estate. See McCormick v. Stephany, 16 Dick. Ch. Rep. 208, and cases there cited. The words which follow were definitive, not of the estate to be conveyed, but of the contents of the property, the location of it and the place where more, accurate description could be found. The thing “shown on plans prepared by Penna. R. E. Co., for the making of an undergrade crossing at this point,” was the eight-tenths of an acre agreed to be conveyed and purchased. It would be an obvious distortion of the agreement to hold that these words, which describe the Pennsylvania railroad plans, applied to the estate which Adams agreed to convey. I' find nothing doubtful in them which would justify the receipt of explanatory testimony on the ground that they raise a latent ambiguity.

The result is that the defendant has not performed his agreement in accordance with the legal effect of its terms, and the dispute being solely as to whether or not he has passed such an estate as under the'agreement he is bound to convey, the complainant is entitled to have the relief which' is prayed for in its bill except in one particular.

I will hear counsel as to whether there can be, under this agreement’ (which is made only by the husband, Henry G. Adams), a decree that his wife shall convey her inchoate dower interest in the land.

[After hearing further argument.]

No ground upon which I can make a decree to compel this lady to make this deed has been shown. The matter is discussed in the recent case of McCormick v. Stephany, ubi supra, where the decisions ofi the point in this state are collected.

Counsel may submit a decree for the relief prayed for against Henry C. Adams only, and as the litigation has been along the whole line, with costs. I will refuse relief as against Mrs. Adams.


author: Stevenson, V. C.

text:
    Samuel R. Demarest, Jr., and Cornelius W. Berdan, executors of Jacob Terhune, deceased, v. Mary E. Terhune.
    [Filed November 25th, 1901.]
    1. A general demurrer for want of equity need not further specify the grounds thereof.—Held, that a demurrer for want of equity was sufficient to raise the question whether the transaction in question in this case showed a contract between the husband and wife enforceable in equity, or gave rise to a claim for equitable relief, as such a demurrer raises objections reasonably apparent from the face of the bill and the demurrer.
    2. The act of the husband in joining with the wife in the conveyance of her land was a sufficient consideration to support the noto given by her, even though Gen. Slat. p. 2019 § 82, giving married women living separate from their husbands full power to dispose of their property, applies to her, as this act in joining therein rendered the property more salablé.
    3. The bill states sufficient facts to show an equitable claim in favor of the husband against the separate estate of his wife, though the note is void at law, and the bill does not allege facts to show that the husband did not overcharge the wife for his consent to the conveyance.
    On demurrer to bill.

      Mr. Milión Demarest, for the complainants.

      Mr. James M. Van Valen and Mr. Michael Dunn, for the defendant.
   Stevenson, V. C.

The bill sets forth the following case:

The defendant, Mary E. Terhune, is the widow of the complainants’ testator, Jacob Terhune, deceased. The equitable fights for the enforcement of which this suit is brought arose from a business transaction, in the lifetime of the husband, directly between the husband and the wife. The parties resided for many years prior -to the year 1899 at East Hackensack, in Bergen county, in this state. The bill states that

“by reason of some difficulty in the marital relations of the said Jacob Terhune and Mary E. Terhune, they had for many years and up to the time of the decease of said Jacob Terhune lived continuously in a state of separation, residing in the same house, but did not cohabit together as man and wife.”

Each owned considerable property, both real and personal. Because of the relations existing between these parties, some time prior to 1891, they entered into an agreement with each other to the effect that in the event of either of them selling any real estate, such selling party should pay to the other for the necessary release of dower or curtesy, as the case might be, “whatever sum should be agreed upon between them.”

After this agreement had been made Mrs. TeN™116 sold a part of her real estate, and, before completing the sale, agreed to pay her husband $1,000 as the consideration of his joining in the deed and releasing his estate by the curtesy in the land conveyed. In discharge of this obligation the wife gave the husband a promissory note, as follows:

“East Hackensack, Sept. 10, 1891.
“One year after date I promise to pay Jacob Terhune, or his order, one thousand dollars with interest from date.
“$1000.
“Mary E. Terhune.” '

After receipt of this promissory note the husband joined in the execution of the deed.

The defendant paid the interest on her note to her husband annually up to September 10th, 1898. In the month of December, 1898, the defendant “left the home of her husband and moved to the village of Hackensack.” When making the last payment of interest on the note the defendant wrote to her husband the following letter:

“Hackensack, April 4, 1899.
“Jacob Terhune:
“Enclosed find check for interest for one year due Sept. .10, 1898. Kindly mail me a receipt.
“Respectfully,
“Mary E. Terhune.”

Some time after Mrs. Terhune had made the above-mentioned conveyance and note, but exactly when the bill does not allege, Mr. Terhune desired to sell a portion of his real estate, and thereupon, in accordance with the arrangement between them, the couple agreed that the wife should receive $1,000 for her release of dower. After this sum had been fixed Mr. Terhune proposed to his wife that, instead of paying her in cash, he should surrender to her the note for $1,000 which he held against her. Mrs. Terhune refused to accede to this proposition, and insisted upon receiving cash. Accordingly, not having the cash until he should receive it as the result of the transaction, Mr. Terhune executed to his wife his promissory note for $1,000, payable one day after date; and on the day following he paid the note in cash, and the same was thereupon surrendered and destroyed. Jacob Terhune died October 20th, 1899, and the complainants, his executors, have demanded payment of the note from the defendant. The defendant refuses to pay, taking the position that “she is not legally liable and cannot be held for such payment, because there was no consideration for the note between her and her said husband.”

The bill prays for a decree compelling the defendant to pay the complainants either the amount of .her note or the $1,000 which she received from her husband, and also prays for further and other relief, &e.

The only specification in the demurrer is the common form for want of equity, viz.:

“that the complainants have not in and by their said bill made or stated such case as entitles them in a court of equity to any relief against the defendant as to the matters in said bill or any of such matters.”

Prior to the argument of the demurrer the complainants moved to strike it out, on the ground that it failed to comply with rule 209 of this court, which requires-every demurrer to “distinctly specify the ground or grounds of demurrer.”

This preliminary objection is not well taken. It is well settled that a demurrer in the old form which specifies as its basis only want of equity is not in conflict with the above-mentioned rule. In other words, the statement in a demurrer that the bill does not set forth any case for equitable relief is a “specification” of a ground of demurrer within the meaning of the rule, but the question remains, what attack upon the bill will be permitted under such a specification ? Essex Paper Co. v. Greacen, 18 Stew. Eq. 504; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 385; Bishop v. Waldron, 13 Dick. Ch. Rep. 583.

The object of the rule is to give-reasonable notice to the complainant of the grounds, upon which the sufficiency of his bill is to be called in question, to the end that he may prepare to meet the attack which is made and that he may not waste his time in preparing, to meet attacks which are not made. It follows that under the old form of demurrer for “want of equity” the demurrant may raise all objections to the complainant’s case on the merits as presents in the bill of complaint, which are reasonably apparent upon a perusal of the bill and demurrer. No exact and rigid rule from the nature of the case can be laid down on this subject. It was not the intention, of the rule to compel the demurrant to submit to his adversary his brief or any particulars of his argument. The purpose was to notify the complainant only of the general subject-matter of the argument. If the bill and demurrer for want of equity do not give reasonable notice of any defect in or debatable question concerning the complainant’s case as exhibited in his bill, then the demurrer is frivolous but cannot bo stricken out for non-compliance with rule 209. It is like a demurrer for laches when no foundation for the charge of laches is contained in any allegation of the bill of complaint.

In this case the complainants were plainly notified by the demurrer that the question to be argued was whether the bill set forth a transaction between a husband and wife which was enforceable in equity as a contract or gave rise to any just claim on the part of the husband for equitable relief.

Turning now to the question whether the facts set forth in the bill give rise to an equitable cause of action upon the part of the husband against the wife, it is to be admitted at the outset that the defendant’s promissory note to her husband is void at law. This is not a case merely of incapacity of the husband and-wife to -sue each other in courts of law, but of their incapacity to make a contract which courts of law will recognize-as valid. These complainants, the executors of the husband, are-no more able to maintain an action at law on this contract, against the defendant than was her husband in his lifetime. National Bank of Rahway v. Brewster, 20 Vr. 231.

Some contracts between husband and wife, however, are enforceable in a court of equity, and the question in this case is-whether the bill of complaint exhibits a contract within that limited class. It is more strictly correct to say that the question is whether the bill of complaint exhibits a transaction including a contract between husband and wife out of which arose .an equitable claim of the husband against the separate estate of the wife. Contracts of married women,

“as recognized by equity are only contracts sitb modo; the indebtedness which they create is not a legal indebtedness, but only an equitable liability enforceable in a peculiar manner by'courts of equity.” 3 Pom. Eq. Jur. § 1121.

The married woman’s contract, while her common law disabilities remained, was, in fact, regarded in equity as creating not a personal liability, but a liability of her separate estate. The decree was against this separate estate and never was against, her personally. 3 Pom. Eq. Jur. § 1123; 15 Am. & Eng. Encycl. L. (2d ed.) 791 note 6.

While under the statutes of this state the common law disability of a married woman to contract generally has been largely removed, her contract with her husband remains to-day unaffected by this legislation. It is, at best, but a contract sub modo enforceable only in equity under equitable principles-against her separate property. Woodruff v. Clark, 13 Vr. 198; Healey v. Healey, 3 Dick. Ch. Rep. 239; Wood v. Chetwood, 17. Stew. Eq. 64; affirmed, 18 Stew. Eq. 369.

Counsel for the defendant argue that the bill of complaint does not show that there was any consideration for the wife’s-promise to pay her husband $1,000. It is urged that when the note was made in 1891 the defendant had full power to convey her real estate under the provisions of the act of 1880, entitled “An act for the better securing of the property of married women living in a state of separation from their husbands” (Gen. Stat. p. 2019 § 32); that the husband’s joining in the wife’s deed was therefore unnecessary; that the -true construction of the .above-cited act leads to the conclusion that the wife’s conveyance of real estate made within its provisions passes her title free even from the estate by the curtesy which the husband otherwise might have in case he survived 'her.

It is not claimed on behalf of the complainants that the real estate or interest therein which the wife undertook to sell was not of the kind or nature to which the act of 1880, or its amendment of-1888 (Gen. Stat. p. 2019 § 33), expressly applies; the whole .argument on both sides has proceeded upon the assumption that 'if the wife was within the operation of these statutes or either of them then the land was also. I shall therefore not pause to examine either the statutes or the allegations of the bill in regard to this matter.

Whether this statute merely enables the wife under certain circumstances to make a conveyance of her land which otherwise she could not do without the co-operation of her husband, or whether such conveyance extinguishes all possible interest of the husband in the land, or whether this statute passed in 1880 could affect the rights of Mr. Terhune in the real estate of his wife, •or whether there was a probability or possibility that in case Mr. Terhune survived his wife he would have an estate by the ■curtesy in lands of which she died seized, are all questions which relate to the sufficiency of the consideration, the amount of advantage of Mrs. Tcrhuno’s separate estate arising from her. husband’s joining in her deed as compared with $1,000 which she promised to pay. If all these questions are answered in favor •of the defendant, it still remains that under the circumstances set forth in this bill it was plainly necessary that Mr. Terhune should join in any conveyance of real estate which his wife might wish to make in order to make a title which any prudent person would be willing to take except at a price quite disadvantageous to her.

It is bjr no means clear that the defendant, at the time she made the conveyance in question, was within the operation of the act of 1880. It is true that the bill alleges that the defendant was then living “in a state of separation from her husband,”’ thus employing the very phraseology of the statute; but this statement is qualified by subsequent allegations showing that she was residing in the same house with her husband, and that her husband, presumably, was providing otherwise. for her support. The main purpose of the act of 1880 must have been to enable-married women separated from their husbands to sell their real estate, in order to procure the means of support which their husbands were not supplying. The defendant’s situation, at the-time she made the conveyance and note in question, does not seem to be within the spirit or the letter of this statute. If, however,, this conclusion is incorrect, the defendant still, practically, was-unable to make an advantageous sale of her real estate without having her husband join in the deed, because “the state of separation” necessary to make the statute applicable was not perceptible-to any ordinary observer-—to the class of persons who would be-possible purchasers. When a man and wife are living together in the same house—-the house of the husband—the common judgment would be that they are not “living in a state of separation” within the meaning of the act of 1880.

If the state of separation from her husband in which a wife-were living should be plain and notorious, the husband living in one county and the "wife in another, still the signature of the-husband to the wife’s deed would add value thereto, apart from any question in regard to his possible estate by the curtesy, because any title taken from a married woman, under the provisions of the act of 1880, would always have to be defended by proof- of facts which might be difficult to prove. In the present-case the defendant’s situation, at the time she made the conveyance in question, if, in fact, within the statute of 1880, would in all probability, after a very short time, be extremely difficult to bring within that act by evidence which could be obtained and produced in any court.

Whatever may be the construction of this statute, it is plain that Mr. Terhune’s signature added great value to his wife’s deed, and in all probability was necessar}1-, in order to enable her to-effect a sale which would not be a sacrifice. I think, therefore,, that it is plain that there was a substantial and valuable consideration for Mrs. Terhune’s note, in the shape of an advantage to her separate estate. Mr. Terhune certainly had a bona fide claim to control the disposition of his wife’s real estate, even if his actual rights in respect to that real estate were uncertain. His claim gave him, in fact, a very large control over the sale •of his wife’s property, as we have seen. He waived all his rights, whatever they might be, and, by joining in his wife’s deed, placed her in the same position, with reference to the sale of the property, as if all his contentions in respect thereto had been settled adversely to his interests by the court of last resort in this state •after an expensive litigation.

The argument that the defendant’s contract with her husband was without consideration, in my judgment, has no foundation.

But admitting a consideration for this contract, it is insisted that all contracts which a wife enters into directly with her hus'band are presumably void when set up in a court of equity against her; that the burden is upon the party setting up such a contract to allege and prove the special facts and circumstances which make it enforceable in equity.

In Ireland v. Ireland, 16 Stew. Eq. 315, Chancellor McGill made this deliverance: “When a husband comes into court and .asks for the enforcement of a contract which he has made directly with his wife, or when those who stand in his place so come, the burden is upon him or them to show the fairness of the contract and the equities which call for its enforcement. The wife is presumed to be sub poiestaie viri and the affirmative is with the husband, and those who represent him, to show that the contract was fair, open, reasonable and well understood.”

The above-quoted language, if taken without reference to the facts of the case in which it was employed and applied literally to the present case, might, with great force, be claimed to sustain the contention of the demurrant. It must be conceded that there is nothing to show that the amount which the wife agreed, by her promissory note, to pay to her husband as the price of his joining in her deed may not have been the greater part of the price which was paid to her by the purchase; in other words, there is nothing alleged in the bill directly to show that the wife’s ■contract was fair and unaffected by extortion. There are circumstances alleged in the bill which, perhaps, make such a supposition highly improbable. But if unfairness in the amount which the husband has attempted to exact from his wife for the advantage which he has conferred upon her separate estate makes her promise to pay that ainount absolutely void, and leaves him (the husband) without equitable relief in the premises, it would seem that the true rule would require that this bill, in order to present an equitable cause of action, should show how much of the price of the land which the wife sold she was obliged to agree to surrender to her husband by the contract in question.

I think, however, that Chancellor McGill’s statement of doctrine was intended by him to be confined to the class of contracts between husband and wife which are illustrated in the casé which was before him. In that case (Ireland v. Ireland) the wife filed her bill, after the decease of her husband, to have her dower assigned in the lands of which he died seized. The devisees of the husband, the defendants, undertook to interpose a plea which set up a contract between the husband and wife providing for their separation. The very nature of the contract exposed it to the disfavor of the court, as the chancellor intimates. But, by this contract, the wife, according to one construction, was made to bar her right of dower in her husband’s lands for a consideration which was manifestly 'inadequate, which, in fact, the chancellor declared he failed to perceive at all. In view of this aspect of the case the learned chancellor used the language above quoted. The contract of the wife was sought to be enforced against her absolutely and to the letter. She had either barred her right of dower by her contract or she had not. The whole ease depended upon the question whether her contract with her husband was enforceable in equity strictly according to its terms. When a contract of a wife with a husband is set up against her in a court of equity in such a manner and with such effect, the pleading which exhibits it to the court should manifestly show a contract presumptively enforceable according to its terms, and therefore should conform with the principle which the chancellor indicates.

But where the husband sues the wife in equity on her promissory note given for money borrowed, or goods sold and delivered by the husband to her, or for other contributions made by him to her separate estate at her request, the equitable action does not necessarily involve the enforcement of the contract according to its terms. It is a contract sub modo which is brought into court— a contract which may be largely or wholly enforced, absolutely or upon terms as the court may deem equitable. In fact, this class of actions in equity, brought by the husband against the wife, although they may present contracts of the most solemn nature, which, at law, would absolutely control the rights of the parties, are, in their essential nature, demands for compensation upon an equitable quantum meruit. It would seem that even though a court of equity might differ in its judgment as to the fairness of the amount which the wife has promised to pay the husband from the judgment of the husband at the time the contract was made, that would not constitute a reason for turning the husband altogether out of court and refusing him that'measure of compensation which the court might deem fair.

During.the period when, in this state, a married woman was generally incapacitated, under our law, to make contracts, but was permitted by statute to make contracts in certain cases, it was held to be necessary that the declaration in an action at law, founded on a contract of a married woman, must show the necessary facts which rendered her capable of making the contract. Lewis v. Perkins, 7 Vr. 133; Hinkson v. Williams, 12 Vr. 35.

But I think aro argument can be drawn from the rules of pleadioag established by these actions at law, which applies to the present case for the reason indicated above, that this present case is aaot necessarily aaa action to eaaforce a coaatraet, but rather aaa action to eaaforce an equitable bear upon property growing 'out of a transaction between husband arad wife of which the wife's contract was only a part. The husband's executors are suing aaot necessarily for the amount of the wife's promissory aaote, but father for such part thereof or for such sum of money as this court shall deem a fair aaad reasonable compeaasation to the husband for the rights which he suaxendered for the benefit of the wife's separate estate. If the bill of complaint in this case had set forth all the facts beariaag upon the fairness and reasonableness of the amount which Mr. Terhune exacted from liis wife, and this court from those facts should draw the inference that Mr. Terhune has exacted too large a sum, it would not follow that Mr. Terhune’s executors would not be permitted in this suit to have a lien established for the amount which the court deemed reasonable and fair.

The conclusion would seem to be that where there is a substantial advantage conferred by the husband upon the separate estate of his wife in reliance upon, her promises to pay him a sum of money, a bill in equity filed to enforce that promise, or to establish the husband’s equity growing out of the transaction of which the promise was a part, need not set forth the facts to show the court that the husband did not in any degree overcharge the wife for what he did for the benefit of her estate. The reason, in brief, is that even if the court finds that the husband did overcharge his wife, the correction can be made without defeating the husband’s claim to that amount of compensation which the court deems fair.

Apart from the question of the amount of the husband’s lien there does not seem to be any defect in the case for equitable relief which the bill sets forth. The particular transactiqn which resulted in the defendant’s giving to her husband her promissory note for $1,000 was only part of a general arrangement or regulation of their affairs which the husband and wife had adopted and which, under the circumstances, appears to have been reasonable and fair. Each had real estate which he or she might wish to convey. Each recognized the rights of the other in respect to any such conveyance. If either wished to convey, the other was to receive compensation for his or her co-operation, which was to be agreed upon. The wife, it seems, made the first conveyance and agreed to pay the husband $1,000 as the consideration of his joining in the deed. The turn of the husband to pay came next and then the wife not only demanded $1,000 from her husband, but was so far removed from any undue influence or coercion exercised by him upon her that she compelled him against his wish to pay the $1,000 in cash instead of her accepting the surrender of her note which he then was holding against her.

It is also a fact of great significance that the wife paid the annual interest on the whole note apparently without complaint for many years, and the last of these payments was made after the wife had left the home of her husband and moved to another place. The letter which accompanied the wife’s check for this last payment, dated April 4th, 1899, makes no suggestion that she was paying interest on a contract which was unfair, or which she had not understood, or that the amount upon which she paid interest was excessive. It may be added that the whole course of dealing between the husband and the wife, set forth in the bill of complaint, in which this promissory note was given by the wife to her husband, indicates strongly that the wife was at all times well able to take care of herself and protect her own interests.

I shall advise an order overruling the demurrer.


text:
    Fergus T. Kelaher v. Richard English and The Mayor and Aldermen of Jersey City.
    [Filed December 23d, 1901.]
    Equity will not take jurisdiction of a bill to enforce a lien for only $25 under Gen. Stat. p. 2078, though the chancery court is the only court having jurisdiction of proceedings under the act.
    On motion to strike out bill.

      Messrs. Fagen & Murphy, for the complainant.

      Messrs. Gorlin & Gorlin, for the defendants.
   Stevenson, V. C.

This bill is filed to enforce a lien for $25 upon a debt due from the defendant Jersey City to the defendant English, under the provisions of the

“Act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state,” approved March 30th, 1892. Gen. Stat. p. 2078.

The defendants move to strike out the bill, under rule 213, specifying two grounds of objection, only one of which was argued. This objection is that the suit, not being “founded on fraud or brought to establish a right of a permanent nature,” involves too trifling an amount to receive consideration from this court. Swedesborough Church v. Shrives, 1 C. E. Gr. 453; Allen v. Demarest, 14 Stew. Eq. 162; Brokaw v. Brokaw, 14 Stew. Eq. 215, 222; Frenche v. The Chancellor, 6 Dick. Ch. Rep. 624; Ocean City Railroad Co. v. Bray, 10 Dick. Ch. Rep. 101.

The court of errors and appeals having decided that suits to ascertain and enforce the lien given by the above-mentioned statute must be brought in the court of chancery (Delafield Construction Co. v. Sayre, 31 Vr. 449), it is insisted that this court is obliged to take jurisdiction of all claims which, without regard to their pecuniary amount, come within its provisions; that otherwise no lien for less than $50 could be established and enforced under the act in any court; that’the lien is given for the benefit of persons, including particularly laborers, to whom small amounts are often due, and that therefore the legislative intent must have been to provide a lien to aid such small recoveries.

I can see no indication in this act of any legislative intent to abolish the ancient rule above referred to, which protects this court, and, what is of more importance, protects defendants against “expensive and mischievous litigation about trifling matters which, in consequence of the insignificance of the amount involved, would do the parties themselves more harm than good.” Allan v. Demarest, supra. Whenever the jurisdiction of the court of chancery is extended to a new class of subjects by legislation, such extension, presumably, is made subject to the wise and necessary limitation contained in the above-mentioned rule. The machinery of the court of chancery is not adapted to the determination of controversies which involve merely a trifling sum of money—a sum less than $50. Conceding that the legislature, when dealing with the subjects at present within the jurisdiction of this court, or when enlarging the jurisdiction of the court to new classes of subjects by such statutes as the one above cited, may abolish, in part or in whole, this useful limitation, such intent must be expressed; such intent should not be -implied.

There are no special features of this particular lien law which indicate that it was not enacted with the above-mentioned protective limitation in view. The act does not impair any right or remedy which the laborer and materialman had before its pass-, age. The court of chancery gets no jurisdiction to make any decree unless a lien is established. A statute merely providing an additional remedy by the creation of a lien, enforceable only in a suit in the court of chancery, does not seem to be applicable to cases where the expenses of the chancery suit would necessarily be many times the proceeds of the lien. Of what possible advantage could it be to a laborer to permit the filing of a bill in the court of chancery to obtain a final decree for the sum of $2 or any such small sum? Iiis remedy is in the small cause court. If the legislature had intended to give the laborer or the mechanic a lien for his wages without regard to the amount, it would probably have provided for the enforcement of that lien through the cheaper and more convenient process of the courts sitting in each case where the subject-matter of the suit is located, and in an action in which, if no lien is established, a personal judgment for the debt can be rendered. The court of errors and appeals having ascertained (Delafield Construction Co. v. Sayre, supra) that the legislature did not mean to do this thing, the result is that a lien under the act can only be enforced in accordance with the general rules which regulate the exercise of the jurisdiction of the court of chancery.

I shall advise that the bill be dismissed.


author: Stevenson, Y. 0.

text:
    The Lakewood Gas Company v. George G. Smith.
    [Filed January 21st, 1902.]
    1. The president of a company was a rival claimant of certain unissued stock, and, taking advantage of his position, without being authorized, had the treasurer issue the stock to him. He had no reason to believe that the directors would authorize the issuance of the stock to him, and had notice that they would not award the stock to either claimant without arrangement for the company’s protection.—Held, sufficient to show that the issuance of the certificate was unauthorized and without force as a muniment of title.
    2. Where the president of a corporation, without authority, procures an issuance to himself of corporate stock of which he is a rival claimant, a contention that he should be compelled to surrender the certificate because he was depriving the company of its right to compel the claimants to interplead, is without merit, as his unauthorized act did not affect the company’s power to protect itself by an interpleader suit.
    On bill, answer and proofs..

      Mr. Charles D. Thompson', for the complainant.

      Mr. Frank P. McDermott, for the defendant.
   Stevenson, Y. 0.

The principal object of this suit is to compel the defendant, George G. Smith, to surrender to the complainant for cancellation a certificate representing eighty shares of the capital stock of the complainant of the par value of $8,000. The certificate bears date January 10th, 1901, and is in the usual form under the seal of the company, signed by the defendant, as president, and one Walter C. O’Leary, as treasurer, of the company.

The first matter to be determined is whether the issuing of this stock to the defendant was the act of the company or the unauthorized act of the defendant. The defendant procured the execution and delivery of the certificate to himself, taking advantage of his position as president of the company. Both himself and Mr. O’Leary, the treasurer, were anticipating the transfer of the control of the company to a party whom.the defendant could not influence and who would probably be unfriendly to his interests. There is no evidence whatever that the corporation had ever authorized these officers to exercise the power of the corporation with' reference to the issue of stock. Their duties, as president and treasurer, respectively, with reference to the execution and delivery of stock certificates, were purely clerical or ministerial. These particular eighty shares constituted the last unissued stock of the total authorized capital of $100,000. Practically the whole capital had been issued by the company to pay for the construction of its gas works under a written contract which provided that the stock should be issued to the- contractor “as the work progressed.” There is no evidence that any of this stock was ever issued excepting after the board of directors had satisfied themselves that the progress of the construction work warranted such issue. As will be seen in dealing with another branch of the case, there were two claimants for this last portion of the capital stock, these eighty shares, and the matter of its issue had been considered by the board of directors of the company. The defendant was one of these two claimants. lie had no reason to believe that a regular meeting of the board of directors would authorize the issue of this stock to him, but on the contrary had distinct notice that such a result was highly improbable ; that the board of directors would not award this stock to either of the two claimants without satisfactory arrangements being made for the protection of the company.

The circumstances under which this stock certificate was issued to the defendant, in my opinion, deprived it of its force as a muniment of title. The defendant must surrender the certificate unless he can show affirmatively that at the time it was issued he had a right to the shares of stock of the company which the certificate represented, and that the company therefore owed him the duty of giving him the usual written evidence of his ownership. Whether the defendant, on the 10th clay of January, 1901, was so entitled to receive eighty shares of stock, has been litigated in this case. The complainant insists that the defendant is obliged to surrender the certificate because of its unauthorized issue without regard to the question whether the defendant was entitled to the stock or not. This position seems to me to be untenable. If the defendant, in fact, owned the eighty shares of stock he had a right to receive the certificate, and his act in procuring the certificate to be issued to himself was merely an administrative act which the corporation was obliged to have performed on his behalf. There would be no advantage in compelling the surrender and cancellation of this particular certificate if the defendant would have the right to demand and receive another in its place.

The complainant, however, further insists that there is a special reason in this case why the defendant should be compelled to surrender the stock certificate which he obtained, and that is because it appears that the corporation was holding back the issue of this particular eighty shares of stock in order to secure the settlement of the demands of the two rival claimants. The defendant had notice of this situation, and by his act deprived the company of the advantage of its position, including particularly its right to compel the claimants to interplead. The argument proceeds upon the theory that without the certificate for the eighty shares of stock to present in court, the complainant is deprived of this equitable remedy. But I do not think that the unauthorized act of the defendant in issuing the stock to himself in the slightest degree affected the power of the corporation to protect itself by an interpleader suit. There might be many unauthorized certificates for the same stock outstanding in the hands of different claimants, and as many more claimants without certificates. I can perceive no reason in such a case why the corporation should not make all the claimants, both those holding certificates and those without certificates, defendants to á bill in the nature of a bill of interpleader, holding the certificates within the power of the court by a preliminary injunction such as was issued in this case. The certificate in this case, as in all cases, is a mere voucher, a mere receipt establishing when regularly issued, a prima facie title in the holder to the shares of stock named therein. It is the ownership of the stock which is to be decided in this suit and would be decided in such an interpleader suit as we have been considering; the possession of the stock certificate is a mere incident.

The complainant has not seen fit to make the other claimant to the eighty shares of stock in dispute a party to this suit as, in my judgment, it might have done by presenting this bill in a different form. ^

The defendant, in his answer, in effect admits frankly that he procured the certificate of stock to be issued to himself in order to protect his legal rights against any possible action which the company under its change of management might see fit to take. He bases his defence solely upon his right to ‘the stock in dispute.

The question to be determined is whether the defendant, on January 10th, 1901, was entitled to these particular eighty shares of stock of the complainant company and as the owner of such stock was entitled to receive a certificate representing the same. The affirmative, as I have stated, is with the defendant.

The complainant was organized, under the general act for the incorporation of gaslight companies, in April, 1899, its object being the construction and operation of gas works in the village of Lakewood. On May 18th, 1899, the complainant entered into a written contract with B. Yan Steenburgh, trustee, by the terms of which Mr. Yan Steenburgh was to erect certain gas works, described therein, and deliver the same to the complainant on May 1st, 1900, in complete working order and free from debt, except certain mortgage bonds. The price of this plant was to be paid largely in the first mortgage bonds and capital stock of the complainant, the bonds to be delivered on demand as soon as they could be issued and legally executed, and the stock, as above stated, to be delivered “as the work progressed.”

The evidence affecting the ownership of the eighty shares of stock in dispute commences in December, 1899, by which time a large part of the construction work had been done and the greater part of the stock had been issued to the contractor, Mr. Yan Steenburgh, in payment therefor. This evidence is, in some respects, meagre, and consists almost exclusively of records and documents. In addition to this documentary evidence we have the answer of the defendant, under oath. None of the persons who had knowledge, of the transaction under investigation was sworn as to any of those matters, except Mr. Yan Steenburgh, who was examined briefly on one comparatively unimportant matter. The parties to this suit evidently were satisfied with the case which is presented by the written evidence, which was put in substantially without objection. The various papers may therefore be taken as true, in the absence of evidence contradicting them and as speaking from their respective dates.

On December 18th, 1899, a meeting of the board of directors was held, at which the board declined to -issue further stock to Mr. Yan Steenburgh, but instructed its secretary to write to him that the board was

“willing to turn over all the stock to him upon his giving satisfactory security that the plant will be turned over free and clear and according to contract.”

At this meeting a statement was received from Mr. Yan Steenburgh, showing that he was indebted for material, &c., to the amount of $9,599.52.

At a later meeting, held December 21st, 1899, the directors appointed a committee

"to investigate the security offered by Mi-. Van Steenburgh for the completion of his contract and for the payment of all liabilities incurred against the plant by the contractor, and resolved that if such security should be satisfactory to the committee that the secretary be authorized to issue the balance of the stock of the company to Mr. Van Steenburgh.”

What security was referred to is, perhaps, not entirely clear. The original contract of May 18th, 1899, was accompanied by a covenant of two sureties for the performance of the contract by B. Van Steenburgh, trustee. It is probable, however, that the corporate action above mentioned related to security which Mr. Van Steenburgh was then offering. However this may be, it would seem that the security was not satisfactory to the committee, and the indications are that Mr. Van Steenburgh/s financial situation was such as to prevent him from carrying out his contract.

On January 11th, 1900, an assignment of the construction contract was executed by B. Yan Steenburgh, trustee, to Edwin R. Case, who is the other claimant of the eighty shares of stock, in the following words:

“In consideration of your assuming and complying with all the obligations contained in the within contract and the .payment of the bills amounting to about $9,900, as per memorandum attached hereto, I hereby assign to you all my interest in the within contract subject to the approval of the directors of the Gas Company.
•“B. Van Steenbtjesi-i, Trustee,
“N. Y. Jany. 11, 1900. “Witness J. H. DeRoe.”

The assignee, Mr. Case, had at this time secured the control of the board of directors of the company. For some reason he did not immediately apply to the directors for their approval of the ássignment which he had obtained, and the substitution of himself for B. Van Steenburgh, trustee, called for thereby. He appears to have been content to have Mr. Van Steenburgh remain apparently as the contractor while he (Case) backed him up with financial and other support.

The next meeting of the board of directors after the meeting of December 21st, 1899, was held on January 17th, 1900, at-which the committee previously appointed, reported in effect that they were endeavoring to procure a statement from the contractor showing the work done, &c. The record shows that Mr. Yan Steenburgh came into the meeting and thereupon a motion was made that the company issue two hundred and fifty shares of stock of which fifty were to be used to' pay for land “and the balance of two hundred shares to be delivered to Mr. Yan Steenburgh,” upon delivery to the president of the company of a

“certified check for $5,000 to the order of the gas company to be left with the company as security and a surety signed by Edwin R. Case that the contract of B. Van Steenbui’gh, Trustee, with the gas company will be completed and all matters carried out in accordance therewith.”

This motion was carried, no vote being recorded, but no record appearing of any opposition. The defendant, Mr. Smith, was present at this meeting and presumably presided as president of the company.

The answer of the defendant alleges that

“on the 18th day of January, 1900, the said Edwin R. Case executed a bond as surety for the said B. Van Steenburgh, Trustee, to the said complainant company whereon he became bound for the faithful performance of the said contract by the said B. Van Steenburgh, Trustee.”

It is fairly inferable from what appears in the later documentary history of the transaction under investigation that Mr. Case not only entered into this bond of suretyship, but also furnished the certified cheek for $5,000, which the resolution called for. Thus it appears that Mr. Case made himself absolutely liable to the corporation for the performance of this contract at a time when there was very little more stock and no bonds which could be earned under the contract. The inference is unavoidable that Mr. Case incurred this liability relying upon the assignment of the contract which he held from Mr. Van Steenburgh, and which, as against Mr. Van Steenburgh, was absolute.

On March 10th, 1900, the board of directors refused to comply with Mr. Van Steenburgh’s request, or a request made in his name, for the balance of unissued stock, and resolved that such stock should not be turned over until an expert had examined and reported on the plant and contract.

The first official notice to the company of the assignment to Mr. Case appears to have been on April 26th at a meeting of the board of directors. A resolution was then adopted that Mr. Case “be accepted and substituted in the place of B. Van Steenburgh,” &c., in the assignment of May 18th, 1899, upon certain specified conditions. Among these conditions were that the deposit of $5,000 in cash made by Case, and then in the hands of the company, as security for the'performance of the contract; should “remain in the hands of said gas company until the conditions of said contract are complied with fully by said Case;” that said Case should pay the interest on the bonds of the company which would be due May 1st, 1900, and that the said Case sign an agreement with the company to be substituted as principal in the contract, and to “accept all the terms thereof, and also procure from said B. Yan Steenburgh his written consent, in due form of law, to said substitution.” It was further resolved that upon the acceptance of the foregoing conditions by Mr. Case, that the time for “completion of said contract” be extended to May 15th, 1900.

Mr. Case complied with the conditions above mentioned and delivered to the company the written consent of Yan Steenburgh which was called for, and also a written instrument, signed by himself, whereby he agreed and consented to be substituted in the place of Yan Steenburgh “as principal in said contract to perform the conditions thereof,” and also agreed that his deposit of $5,000 in cash should remain in the hands of the company until the conditions of the contract should be fully complied with, and also agreed to pay the interest of the bonds which would be due on the 1st of the following May. .

Whatever day may be assigned to the completed transfer of the contract from Yan Steenburgh to Case, it is plain that Mr. Yan Steenburgh never earned the eighty shares of stock in dispute under the terms of the contract or otherwise. The stock, as we have seen, was to be paid over as the work progressed, and the last stock issued would naturally be in payment for tire last work done. From the records which have been offered in evidence it would appear that the assignee, Mr. Case, was obliged to do considerable work before it could be seriously claimed that there was a performance dr substituted performance of the contract or acceptance of the work which the contractor had done. Negotiations between Mr. Case and the company took place in regard to a defect in the tank and the control thereof, and the parties became somewhat airtagonistic. An offer of settlement was made by the company, rejected by Case and then withdrawn. On November 17th, 1900, the directors of the company resolved that Case had failed to complete his contract, and that the time for completion had passed, and that the company demand delivery of the plant from Case, and that proceedings be instituted to obtain possession of the plant if the same should not be delivered, and that the obtaining possession of the plant should not be a waiver of any claims against Case for his “not completing his contract according to the terms thereof.” While matters were in this situation a number of tlie directors retired and persons were elected in their place who apparently were favorable to Mr. Case’s claims. The result was a settlement of the matters in dispute between Mr. Case and the company. By the terms of this settlement the plant was accepted “as complete under the contract.” Mr. Case ■ was released from further liability, various matters, such as the moneys collected from consumers of gas, were adjusted, the $5,000 deposit was paid back to Mr. Case and a certificate for fifty-nine shares of capital stock was delivered to Mr. Case, leaving the eighty shares unissued.

It was also resolved at this meeting that the matter of -eighty shares of the capital stock of the company, which was the last installment payable under the contract, “be not acted upon before January 10th, 1901.”

The eighty shares of stock were "retained because of claim to the same which had been put forward by the defendant, Mr. Smith, based upon an equitable assignment thereof alleged by Mr. Smith to have been made to him by Mr. Van Steenburgh on November 27th, 1899. On that date Mr. Van Steenburgh bought certain bonds from Mr. Smith and gave a receipt therefor in which he agreed as the price of the bonds “to deliver to George G. Smith eighty shares of the Lakewood Gas Company stock within thirty days or sooner if possible.” At a later date, within about a month and probably on the next day, Mr. Van Steenburgh executed and delivered to Mr. Smith a written document as follows:

“Lakewood, N..X, Nov. 27th, 1899.
“Lakewood Gas Go.:
“Gentlemen—In accordance with agreement between Geo. G. Smith of Lakewood, N. X, and B. Van Steenburgh, Trustee, under date of Nov. 27th, 1899, in which I agreed to deliver to Geo. G. Smith within thirty-days from date thereof, eighty shares of stock of the Lakewood Gas Oo., in payment for five .bonds of five hundred dollars each of said Lakewood Gas Oo. this day delivered to me, I do hereby authorize the Lakewood Gas Oo. to deliver to Geo. G. Smith of Lakewood, N. X, a certificate for eigktj' shares of stock of the Lakewood Gas Co. of Lakewood, N. J.
“B. Van Steenburgh,
“Trustee.”

The answer of the defendant, which, according to the prayer of the bill, is under oath, alleges that at the meeting of the board of directors above mentioned, held on January 17th, 1900, the defendant

“notified the Board of Directors that he had paid full consideration for and was entitled to eighty shares of the capital stock of said company, to be issued under the said contract, made by said company, with the said B. Van Steenburgh, Trustee, and requested that the same be issued to him.”

Admitting that this allegation is evidence on the part of the defendant, it should be observed that the directors were not notified from whom or in what manner Mr. Smith had acquired his right to eighty shares of stock to be issued under the contract. Mr. Smith merely stated that he had paid someone for these shares, and, in his judgment, was entitled to them. It was at this same meeting of the board that the motion, above mentioned, was made providing for the issue of two hundred and fifty shares of stock to Mr. Yan Steenburgh, upon his giving to the-defendant, as president of the company, a certified check for $5,000 and an obligation of Mr. Case as security for the performance of the contract. That the position of the company was that no more stock was due, under the contract, to Mr. Yan Steenburgh seems to have been plain to the defendant at that time.

At a meeting of the board of directors held April 18th, 1900, a resolution was adopted

“that M. G. G. Smith, having asked for eighty shares of stock on order of B. Van Steenburgh, trustee, that said order be placed on file with the company.”

This seems to have been the first formal notification made by the defendant of his alleged equitable assignment.

The defendant, after he had made his bargain for the stock with Mr. Yan Steenburgh, on November 27th, 1899, and a little later procured the order or authorization permitting the company to issue eighty shares of stock to him, for some unexplained reason seems to have allowed all the stock which Mr. Yan Steenburgh could possibly have earned under his contract with the company to be issued and paid out in accordance with his (Mr. Yan Steenburglf’s) direction. Why the defendant permitted the two hundred and fifty shares of stock, the certificates for which he must have signed as president, which were ordered issued by the board in January, 1900, to slip through his fingers is not explained. It appears that later the original'terms of the construction contract were amended to correct an admitted mistake, and the directors, in accordance with a vote of the stockholders, issued one hundred shares of the capital stock. This was done in-, 1900, subsequent to the presentation of Mr. Smith’s so-called equitable assignment to the board of directors.

It is unnecessary to discuss the questions whether the order which Mr. Smith received from Mr. Van Steenburgh operated as an equitable assignment of any stock, excepting the particular eighty shares in litigation. Nor is it necessary to consider whether Mr. Smith, by any laches, lost his right, as against the company or as against Mr. Case, to demand and receive eighty shares of stock out of any stock which was issued prior to the time when all the capital stock had been issued, except these eighty shares.

In my judgment the defendant’s whole claim is disposed of by the proposition that these eighty shares of stock were never earned'by Mr. Van Steenburgh, and never, in case he had made no equitable assignment thereof, would have been due from the company to him.

Upon no possible construction of this order does it seem to me can it be considered as an assignment of the construction contract. It gave no right to Mr. Smith, with or without the approval of the directors of the company, to take Mr. Van Steenburgh’s place in the performance of the work contracted for. It was. never more than the ordinary order which a contractor frequently gives upon the party for whom he' is doing work for a payment of money which is due, or will become due, to the contractor in pursuance of his contract. Such orders have been held frequently to operate as equitable assignments upon funds which have not been earned, but which probably will be earned, and thus have a potential existence. There' is no difference between the stock which Mr. Van Steenburgh was earning under this contract and a money consideration which might be so earned. If the money or the stock is earned, the order may attach to it as an equitable assignment, the other necessary conditions occurring. But if no money or no stock is earned, the equitable assignment becomes wholly inoperative.

No case has been cited to sustain the extraordinary proposition that an order by a contractor for moneys which he expects to earn operates as an assignment of 'his contract, even though the party accepting the order assumes none of the obligations of the contract.

Assuming that the papers which the defendant received finally took effect as an equitable assignment of stock, they only could transfer stock which might become due from the company to the assignor, Mr. Van Steenburgh. The defendant in this case not only fails to show affirmatively, as he was bound to do, that the eighty shares of stock in dispute were earned by Mr. Van Steenburgh, or in some way became due from the company to him, but the proofs apparently establish the contrary, and show that these particular eighty shares were earned by Mr. Case, after the assignment of the contract to him and after he had expended considerable amounts of money in the completion of the contract work, and had, at length, negotiated a settlement between himself and the company.

The proofs, I think, also show that these eighty shares of stock were earned by Mr. Case, not under the original contract with Mr. Van Steenburgh, but under what was practically a new or substituted contract between himself and the gas company. Mr. Case was compelled to give new security and execute a new contract directly with the company, by which he obligated himself to finish the gas works within the further period of time which the company -allowed for that purpose.

I shall advise a decree that the certificate for the eighty shares of stock held by the defendant be surrendered to the complainant for cancellation.