author: Andrew J. Whinery, Surrogate.

text:
    Essex County Surrogate's Court.
    IN THE MATTER OF HARRY VAN PELT, PRESUMED TO BE DEAD.
    Decided May 5, 1931.

      For the petitioner, Charles Beclcer.

    For the Prudential Insurance Company, Thomas Ingham.

   Hannah Van Pelt, the mother of Harry Van Pelt, filed a petition with the surrogate seeking a decree that he be declared to be dead. It is alleged that he was a resident of Newark, Essex county, New Jersey; that he disappeared from that city more than seven years ago and that he left no real or personal property, other than two life insurance policies in the Prudential Insurance Company.

A copy of the rule to show cause having been served on the Prudential Insurance Company, a representative of its legal department appeared at the hearing and brought with him two witnesses relative to the alleged disappearance.

Hannah Van Pelt testified that she last saw her son when he came to Newark from Perth Amboy; that she later learned that he was in the army and was stationed in Texas in 1916 or 1917. Her daughter, Mrs. Cerbus, says that her brother left Newark; that he was in the army; that in 1916 he wrote asking for money but that her letter containing some money for him came back undelivered; that she later had a letter from a sergeant telling her that her brother had deserted the army; that in 1919 she received a letter from her brother, saying that he had joined the Canadian army; that she heard that his enlistment there was under a fictitious name; that although she has tried to locate her brother since that time, she has been unsuccessful. When Van Pelt worked in Newark before joining the United States army, he was employed in the Salvage Corps of that city. One of his associates and friends on the corps was James Thomas Keegan. Keegan testified that after Van Pelt left Newark, he did not hear from him until the period of the world war, when he received a letter from him, written in France, saying that he was a member of the Canadian expeditionary force. He said ho was then known under the name of Langford. In 1921 or 1922 he received another letter from Van Pelt, written in Canada, saying that he had been wounded in the war, that he was married and had two children and was then living in Canada. While Keegan was positive as to the fact of this letter and its contents, he had destroyed or lost it and the letter was not produced in court.

The evidence shows that Van Pelt’s family home was in Perth Amboy; that he came to Newark and worked there for a period of six months; that he then enlisted in the United States army and later was a deserter from it; that he joined, the Canadian forces and fought in Prance with them and that he returned to Canada where he married and had two children.

Under the statute, the surrogate of Essex county only has jurisdiction to declare a person dead, if that person was a resident of that county when he disappeared. See In re Curran, 94 N. J. Eq. 723; 120 Atl. Rep. 786. Under the facts of this case, it is found that Van Pelt did not disappear from Essex county. He communicated with his family and friends after he left Newark. His sister learned from him in 1919 that he was in the Canadian forces. His friend, Keegan, heard from him after the war and Van Pelt wrote of his marriage and having a family in Canada.

The surrogate of Essex county has no jurisdiction in the case, it not appearing that Van Pelt was a resident of that county when he disappeared.

The petitioner also seeks to invoke section 31 of the Orphans Court act relative to the case of a non-resident who has disappeared for more than seven years from his last known abode and who owns property located in New Jersey. There may be considerable doubt as to whether a policy of insurance, payable upon death, constitutes “property” under this section, but it is not necessary to decide that question here. The petitioner seeks to have the surrogate sign a decree that Van Pelt is declared to be dead. Section 31 of the Orphans Court act does not confer that power upon the surrogate and he can act only in accordance with the power stipulated therein.

Andrew J. Whinery, Surrogate.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    EVA EISENBERGER, EXECUTRIX, ETC., RESPONDENT, v. NORTH AMERICAN ACCIDENT INSURANCE COMPANY, APPELLANT.
    Submitted January 29, 1932
    Decided March 14, 1933.
    Before Justices Paeicee and Case.
    For the appellant, Philip J. Schotland.

    For the respondent, Joseph T. Lieblich.

   Per Curiam.

The suit is on a policy of accident insurance. The original policy bore date October 4th, 1927, to run until October 4th, 1928. By the tenth “general provision” it was provided that “this policy with the consent of the company may be renewed for the same premium and for the period of time provided herein, by payment in advance of the premium herein mentioned * * *.” The third “standard provision” reads: “If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of a premium by the company or by any of its duly authorized agents shall reinstate the policy, but only to cover loss resulting from accidental injury thereafter sustained.”

The policy term expired on October 4th, 1928. Ho new premium was then paid. But on October 22d the insured paid a new premium, and the agent issued a receipt on the company’s blank, “continuing in force Policy Ho. 5,233,458 to the 22d day of October, 1929, at twelve o’clock noon subject to all the conditions and agreements in the original policy.” The receipt is dated October 22d, 1928.

This suit is founded on an accident which occurred on October 12th, 1929, and the defense made was in substance that the payment of October 22d, 1928, related back to October 4th, so that the policy year had expired on October 4th, 1929, and there was no insurance in force on the 12th. But we think this point is without substance. No such contract is evidenced by the receipt, which expressly extends the policy term to October 22d. The stub sent to the company gives its date, October 22d, 1928, as its “due date,” and while not so explicit as the receipt, put the company on notice of a premium for a year, accepted as due on October 22d and not on October 4th. If the “provisions” of the original policy be read into the receipt, so far as consistent therewith, we find that clause 3, above quoted, relating to reinstatement, deprives the insured of protection for any period anterior to the payment of premium. Very likely the agent should have used another form of receipt appropriate to the reinstatement of a lapsed policy, but this he did not do. His authority to issue the receipt now in question was challenged at the trial, but is conceded here, and hence we are dealing only with construction of the language used, which, it is true, “continues in force” the policy, but to October 22d, 1929, or a year from the date of the receipt, with no coverage of the period from the 4th to the 22d of October, 1928.

It is suggested that the insured desired what is called a “renewal” instead of a new policy, in order to have the benefit of certain accumulations provided in the policy; and hence the “renewal” should run from the expiration date. But the word “renewal” does not necessarily connote a continued series of two or more. It seems to have no strictly legal meaning. 54 C. J. 379. Moreover, the suit was only for the face of the policy, and while plaintiff at the trial asked a judgment including accumulations, this was denied as not in the record. Consequently that element is out of the case.

The court appears to have directed a verdict for the face of the policy with interest. This, as the case was presented, was correct. The judgment will be affirmed.


text:
    MICHAEL GIANFRANCISCO, PETITIONER, DEFENDANT IN CERTIORARI, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A NEW JERSEY CORPORATION, RESPONDENT, PROSECUTOR IN CERTIORARI.
    Submitted October 14, 1932
    Decided January 17, 1933.
    Before Justices Parker, Lloyd and Heiier.
    Por the prosecutor, Elmer W. Romine.

    Por the petitioner-defendant, Frank B. Bozza.

   Per Curiam.

Por the purpose of our present decision it is necessary to consider only the fourth and fifth reasons filed by the prosecutor in certiorari, which are as follows:

“4. Because the determination and judgment of the workmen’s compensation bureau did not state upon what evidence the finding was predicated.

“5. Because the finding of facts and judgment of the workmen’s compensation bureau does not state in detail the character and extent of the injury or disability which the petitioner had or suffered, but merely states the deputy commissioner’s conclusions so much so that the judgment is not supported by a specific finding of fact.”

The “determination of facts and rule for judgment” in this case, after stating the usual particulars essential to jurisdiction, finds merely that on June 18th, 1929, petitioner met with an accident arising out of and during the course of employment, that the employer had notice of the accident; the amount of wages that petitioner was then earning; that petitioner suffered temporary disability for a little over seventy-eight weeks, for which compensation had been paid; that petitioner suffered a permanent disability amounting to twenty per cent, of total disability, or one hundred weeks at $18.67 per week; that part of this had already been paid; that petitioner had incurred certain expenses for expert witnesses, attorney’s fees, &c. This determination is not such as to enable us intelligently to review the award. The case comes before us on a writ of certiorari directly to the bureau out of this court pursuant to chapter 388 of the laws of 1931 (Pamph. L., p. 1217, since repealed, see Pamph. L. 1932, p. 38), and apart from the point presently to be noticed, the review is merely on questions of fact. We have therefore nothing to assist us in the way of specific findings by the deputy commissioner in determining whether or not the petitioner was injured to the extent stated in the determination, and what is more important, no specific findings of fact on which we may ourselves determine whether, if those facts were properly found, the award was a legally proper one.

. The method of trial in review of these compensation claims has several times been changed by legislation. At the outset there was no compensation bureau and the claims for workmen’s compensation were tried in the first instance by the Court of Common Pleas, subject to the right of this court to review questions of law (and at that time of law only) by certiorari. At a later date, by the statute of 1918 (Pamph. L., p. 429), the workmen’s compensation bureau was created and endowed with the same jurisdiction that the Court of Common Pleas had had (section 10) and by section 19 an appeal to the Court of Common Pleas was provided, which was to be a trial de novo, so that the evidence was taken all over again in that court. In 1921 the provision for a trial de novo was eliminated and it was provided that the hearing of the appeal in the Court of Common Pleas should be based on a certified transcript of the testimony taken before the deputy commissioner. Pamph. L., ch. 229 p. 734. Finally in 1931 the legislature enacted that the only review of the finding of the workmen’s compensation bureau should be by way of certiorari issued out of this court, under which, as we understand if, this court, either by reason of the general language of the Certiorari act or the language of the Compensation act, or both, is to review questions of fact as well as of law.

Under section 20 of the original act of 1911 (Pamph. L., p. 143) it was provided that the determination by the Common Pleas should be in writing and should contain a statement of facts as determined by the judge. In proceedings to review certain determinations it was definitely held that this statement of facts should be specific as to the nature and extent of the injury, so that the reviewing court may be enabled to judge of the propriety of the award as supported by the facts found. Long v. Bergen County Common Pleas, 84 N. J. L. 117; 86 Atl. Rep. 529; New York Shipbuilding Co. v. Buchanan, 84 N. J. L. 543; 87 Atl. Rep. 86; Diskon v. Bubb, 88 N. J. L. 513; 96 Atl. Rep. 660; Dunnewald v. Henry Steers, Inc., 89 N. J. L. 601, 603; 99 Atl. Rep. 345, in the Court of Erors and Appeals. So far as appears by the cases that have come before us in the last few years, the practice of making a specific finding of facts with regard to the nature and extent of the injury, except in cases of death, has to our recollection been consistently followed even though it may be that the clause quoted from the act of 1911 may not have been in the later legislation changing the tribunals and the appeal. However, it is to be noted that by section 10 of the act of 1918 it is enacted that ‘The procedure for the determination of claims by said bureau, except as herein otherwise provided, shall be conducted in the manner provided by the act to which this is a supplement, and its supplements and amendments;” and this general provision seems to be adequate as continuing the previous practice of filing a specific determination of facts. This section 10 was amended by the act of 1921, supra, but not in any particular material to the present case.

The line of cases, of which Long v. Bergen Common Pleas was the first, has remained as authority on this point without modification or adverse comment so far as we are aware. They are cited in the brief for the prosecutor in making the point now under discussion and we do not observe any reply in the brief for the defendant.

The practical importance of the rule is illustrated by the case now before us. The evidence consists of the testimony of the petitioner himself, necessarily interested in the award, and the testimony of several experts on his side, and several on the other, who disagree on several fundamental points, it being claimed for the present prosecutor that the petitioner was suffering rather from a hysterical imaginary disability than a real physical one, and that what he really needs is to go to work and forget about his former injury. In consideration of this conflict of testimony, we are in no way aided by any findings of the deputy commissioner; and we deem it essential that to enable this court to do justice in the premises; it should have the specific findings of the commissioner before it and not be relegated, in the first instance, to a reading of all the testimony, important and unimportant, which would result merely in this court, in effect, making its own finding in the first instance unaided by any views of the deputy commissioner, except his general finding that there should be an award and that the disability amounted to a certain percentage.

It might be further noted in connection with this matter that the commissioner himself required several months ■ to reach any decision at all and this possibly may have been due to the fact that he was himself in some doubt.

We conclude that the matter is not before us in such shape as to enable us to reach a definite determination whether the finding below should be in the last event affirmed or set aside. We are clear, however, that the award now before us should be set aside and the record remitted to the bureau to the end that the commissioner make the specific finding which we think is required of him. Such will be the order.

We are not unmindful of the fact that in the case of Dreyfus v. Lutz Co., 6 N. J. Mis. R. 608; 142 Atl. Rep. 433; affirmed by the Court of Errors and Appeals in 106 N. J. L. 566; 146 Atl. Rep. 913, it was held that the determination of the Court of Common Pleas under the act of 1918 on appeal need not be specific. That, however, was because the jurisdiction of the Court of Common Pleas at that time was appellate and not original as at first. The present case is not a review of the Court of Common Pleas after an appeal to that court, but a direct review of the court of first instance, so that in our estimation the decision just cited is not in point.


text:
    BLANCHE PETERSON, RESPONDENT, v. MORRIS KADISH, APPELLANT.
    Submitted January 29, 1932
    Decided March 14, 1933.
    Before Justices Parker and Case.
    Eor the appellant, Harry E. Walhurg and William H. D. Cox.

    Eor the respondent, William•, Herda Smith.

   Per Curiam.

This is a suit for personal injuries by tenant against landlord. The plaintiff was injured while in the act of entering the apartment of the janitor for the purpose of making a complaint with regard to a leaky water faucet in her bathroom. Plaintiff knocked on the door, was told by his wife “to come in,” opened the door and was in the act of stepping down two steps from the main floor to the floor of the janitor’s rooms when the steps tilted or slipped, whereby the plaintiff was thrown down and sustained physical injuries for which she sued.

The evidence seems to have been fairly clear with regard to the broken condition of the steps and also with regard to the fact that this condition had been reported to the landlord some time previously, so that there was reasonable opportunity to make repairs, if the landlord owed that duty to the plaintiff.

The grounds of appeal were three in number. The third related to an instruction to charge, but that is not argued and has therefore not been considered.

The first ground alleges error in refusing to nonsuit, and the second ground alleges error in refusing to direct, both motions, being based on the grounds that there was no negligence on the part of the defendant, and that the plaintiff was not invited to be where she was, but was a mere licensee.

Our examination of the case satisfies us that there was a jury question, in both aspects, as presented on the motions to nonsuit and to direct. There seems to be no doubt that the plaintiff was a tenant in the building. Now, with regard to the invitation, the ease made out by the plaintiff and which it was open to the jury to believe, was that when she took possession of her apartment she found that the telephone and buzzer communications with the janitor’s rooms were out of order; and that she complained of this to the landlord and he told her that they had not been in order for some time and that if she had any trouble she would have to go and see the janitor. The landlord denied telling her to go and see the janitor, but this was a disputed question of fact. Consequently, when the hot water leak in the bathroom developed the plaintiff went down to the janitor’s apartment and as has been said, she knocked on the door and was told to come in.

The claim now is that she was not invited into that apartment by any act of the landlord; but from the facts as the jury were entitled to find them and as recounted above, we think it was clearly a jury question with regard to her being legally invited to go to the janitor’s rooms, and incidentally enter them if bidden to do so for the purpose of making the complaint. There seems to be a suggestion in the brief that the landlord had no control over the janitor’s rooms; but the janitor was obviously the agent of the landlord although, perhaps, in one sense a tenant.

That the question of negligence was one for the jury would seem to appear clearly from what has been said above with regard to the condition of the steps and the knowledge of the landlord of that condition.

We conclude that the judgment should affirmed.


text:
    NATIONAL SURETY COMPANY, RESPONDENT, v. THE BOARD OF EDUCATION OF CLIFTON, IN THE COUNTY OF PASSAIC, APPELLANT.
    Argued May 7, 1930
    Decided March 28, 1933.
    Before Gummeke, Chiee Justice, and Justices Tkehciiakd and Lloyd.
    Por the appellant, Albert Comstock and William, B. 6 owrley.

    Por the respondent, Frederic M. P. Pearse.

   Per Curiam.

The plaintiff below was the surety on a contract of Fallacé Brothers for the erection of a school house in Clifton. Before the contract was completed the contractor became involved financially and failed. The surety, under and in accordance with its bond, took up the work and finished the job, also taking from the contractor an assignment of the contract. When completed there remained a small balance due under the contract and a dispute arose respecting a claim of the surety for excavating solid rock. Paragraph 12 of the contract provided that if solid rock should be encountered the same should be removed from the premises at unit prices for blasting to be submitted in the estimate. The unit price for such blasting was specified in the estimate to be $4 per cubic yard in addition to the general contract price.

The parties were unable to agree and arbitrators were selected to. determine whether certain excavation had been of the character specified in this paragraph. These arbitrators were selected in pursuance of provisions of the contract which directed that should any dispute arise respecting the true value of extra work or work omitted, the same should be valued by two competent persons, one employed by the owner and the other by the contractor and that these two should have the power to name an umpire and that the decision should be binding upon all parties. The persons thus chosen selected an umpire. This umpire never acted but the persons mutually selected, coming to agreement, reported in favor of the plaintiff.

The award not being paid, suit was brought for the amount of the award together with the small balance still claimed to be due under the general contract. On the trial of the case the award was offered in evidence and on this phase of the case, a verdict directed for the plaintiff. From the judgment rendered the present appeal is taken.

Several grounds of appeal are presented in the record. Of these but two are argued in the appellant’s brief and in accordance with the established rule those not argued are deemed to have been abandoned.

The grounds argued are that the arbitrators were not sworn and that no notice was given of their meeting and that in consequence the report was improperly received in evidence.

Eeliance is placed by the appellant on the provisions of section 6 of the Arbitration act (1 Comp. Stat., p. 106), which provides that “in eases of arbitration, every arbitrator shall, before he proceeds to the business submitted to him, take oath or affirmation of the like nature with that herein-before prescribed to be taken by referees and to be administered in like manner.”

Assuming, though not deciding, that if this were a statutory arbitration the arbitrators would be required to take the oath prescribed and possibly also to give notice of hearings to the parties in interest, we think the present was not such an arbitration. It was the submission of the determination of a single fact to experts mutually chosen for the purpose. It was not the outgrowth of litigation, it was not made a rule of court to determine the issues between the parties, and was not for the determination generally of the issues between the parties. It was in our opinion such a reference as is illustrated in the cases of American Central Insurance Co. v. Landau, 62 N. J. Eq. 93; 49 Atl. Rep. 738; Stout v. Phoenix Assurance Co., 65 N. J. Eq. 566; 56 Atl. Rep. 591.

Such being the case the persons selected were not required to be sworn or to accord formal hearings and the learned trial judge properly received the report of the arbitrators in evidence and gave it conclusive force in the trial of the cause.

The judgment is affirmed.


text:
    HARRY K. USLAN, PLAINTIFF-RESPONDENT, v. JAMES BOWEN, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 25, 1933.

      Before Justices Teenci-iaed, Case and Beogan.
    For the plaintiff-respondent, Irving Charles Picker (Maurice C. Bñdgier, of counsel).
    For the defendant-appellant, Edward P. Stout.

   Per Curiam.

The action was brought to recover the balance claimed to be due from the defendant for plastering work done by the plaintiff on the defendant’s premises. The state of case shows in part that the plaintiff was sworn and testified that he entered into an oral agreement with the defendant to do the work for the sum of $587.50; that plaintiff performed the work properly, had received $275 on account and that there was a balance due him of $312.50. That evidence supports the finding of the judge, sitting without ,a jury, that “the work was properly done, in a good and workmanlike manner, and that the plaintiff was entitled to the balance of the contract price amounting to $312.50.” Upon that finding judgment was given to the plaintiff.

It is well settled that upon appeal from the District Court that tribunal’s judgment should be sustained if there be any evidence to support it; and there was such evidence in this case. Breithart v. Lurich, 98 N. J. L. 556; 120 Atl. Reg. 11.

Appellant’s first specification is that the court bases its judgment on immaterial and irrelevant testimony; a proposition that we think is contradicted by the foregoing citation from the record.

The second specification is that the court based its judgment on an erroneous theory of law; a proposition for which we find no support.

The third specification is that the plaintiff failed to sustain the burden of proof as to the contract price; but the burden of proof is not for us to consider on an appeal.

The final specification is that the evidence and findings of fact by the court do not support the judgment; a statement which likewise is shown by the record to be incorrect.

Judgment below will be affirmed, with costs.


text:
    CHRISTINE F. RICHTER, PLAINTIFF-RESPONDENT, v. L. BAMBERGER & COMPANY, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the plaintiff-respondent, Thomas B. Kaveny (Charles H. Hanks, Jr., of counsel).
    For the defendant-appellant, Joseph C. Paul.

   Per Curiam.

Plaintiff was a customer in the store of L. Bamberger & Company, Newark, and was using one of the store escalators when a woman ahead of her was thrown by the heel of her shoe being caught in the escalator. This mishap caused other users of the escalator to fall back and thus one of these persons stepped on the plaintiff’s instep, producing injuries that form the basis of the present action. Defendant’s brief alleges four errors: (1) refusal of nonsuit, (2) absence of proof of negligence, (3) refusal to direct verdict for the defendant, and (4) rendering judgment for plaintiff. All of these grounds fall if there is proof that the plaintiff’s injuries were due to defendant’s negligence.

The District Court judge, sitting without a jury, made a finding of facts which may in part be paraphrased as follows: The escalator was old and the cleats upon which users of the contrivance were obliged to stand had become considerably worn with the result that the spaces between the cleats were unduly widened. This condition permitted the heel of the woman’s shoe to slip into the intercleat space, causing the woman to be thrown and her neighbors on the escalator to fall back. One of the last named persons was thus caused to step on plaintiff’s instep. Defendant was negligent in the inspection and repair of the escalator. This negligence was immediately reflected in the condition of the apparatus and was the proximate cause of the woman’s fall and of the plaintiff’s injuries.

Has that finding support in the facts proved or in the inferences legitimately to be inferred therefrom? We think so.

The witness Johnston, speaking of the woman who was thrown, said: “Her two shoes were stuck down between the two grooves in the escalator where the escalator had worn down. * * * The woman couldn’t step off the escalator * * *. The escalator kept going * * *. She kept falling back on top of us * * *. She had to leave her shoes in the escalator. * * * Nobody was guarding the escalator, top or bottom.” Plaintiff testified that the escalator was worn. Defendant’s chief engineer testified that the escalator had cleats that were about three-quarters of an inch wide and spaced at three-quarters of an inch; that when defendant noticed that the spaces were beginning to increase the cleats were removed and new treads were put on; and that the day after the accident, witness, making an inspection, thought it well to remove and replace six or eight of the cleats; and that such wear takes time to develop and would not occur from a few days’ use.

The duty of the appellant toward the respondent to exercise reasonable care to keep the floor and such other parts of its store as it invited the respondent to use in such condition of repair that it would be reasonably safe for her, in the exercise of reasonable care on her part, to be upon and about such premises is too well established to require citation of authority. We think that the case comes within the rule stated in Stark v. The Great Atlantic, &c., Tea Co., 102 N. J. L. 694; 133 Atl. Rep. 172, and that the facts present a question for jury determination as to whether or not the condition of the escalator flooring that caused the accident had existed for such period of time as to give the appellant reasonable time and opportunity to inspect and repair if necessary. Also we think that there was a fact question as to the sufficiency of the emergency control by which the machinery of the escalator, with its mechanically moving parts, might be quickly stopped on the occurrence of a mishap.

The judgment below will be affirmed.


author: Per Cijriam.

text:
    MAX EICHELBAUM, PLAINTIFF-RESPONDENT, v. MORRIS STULBACH, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Trenciiard, Case and Brogan.
    Dor the plaintiff-respondent, Benjamin H. Stadtmauer.

    Dor the defendant-appellant, Irving L. Werksman.

   Per Cijriam.

The action is for personal injuries received by the plaintiff while passing over the sidewalk in front of defendant’s premises. The judge, sitting without a jury, gave judgment to the plaintiff. Defendant appeals and presents four points which may be adequately comprehended in the refusal of the trial court to nonsuit and to direct a verdict in favor of the defendant.

Plaintiff, while passing along the sidewalk in front of the premises owned by the defendant, was thrown by the sudden opening, from beneath, of one of the double iron cellar doors that, when closed, had been flush with the sidewalk. The building was occupied exclusively by tenants, and the mishap was caused by the son of a tenant making exit from the cellar where he had been of right and for the tenant’s purposes.

Plaintiff relies upon the proposition that the door was not locked and that as it was in process of being opened there were no signals or guards to protect the public. It is in these respects that negligence is charged against the defendant.

That the accident happened from the act of the tenant’s grown son is not in dispute. So far as the present suit is concerned the act was in effect that of the tenant himself. Indeed the testimony of the plaintiff, introduced as an answer to an interrogatory, is that the cause of the plaintiff’s accident was that “plaintiff was thrown to the pavement by a tenant who opened the said cellar doors and (as?) the said plaintiff was passing the same.”

It appears, we think, from our cases as recently reviewed by the Court of Errors and Appeals in Arnold v. Dlugo et al., 110 N. J. L. 89; 164 Atl. Rep. 320, that mere ownership of premises does not visit liability upon an owner for the negligent act of a tenant in raising, without warning, cellar doors of mechanically correct construction, being a part of the sidewalk, while a pedestrian is standing thereon or passing thereover. There is no proof that the doors were not of correct and standard construction or that they were in defective condition. The doors could not, of course, remain locked while someone was in the act of opening them. We find no proof of actionable negligence. There was error in the refusal of the defendant’s motions for nonsuit and direction.

The judgment below will be reversed, costs to abide the event.


text:
    Essex County Surrogate's Court.
    IN RE ESTATE OF MARY E. COLLINS, DECEASED.
    Decided December 2, 1932.
    For Mercie E. Hatch, Alexander T. Schenclc.

    For the estate of Mary E. Collins, Stanley L. Gedney.

   Mary E. Collins died January 16th, 1930. On the petition of Savings, Investment and Trust Company of East Orange, reciting that she died a resident of Essex county, it was appointed administrator of her estate of May 21st, 1930, by the surrogate of Essex county. It has administered the estate and filed its final account, which, however, has not yet been approved by the Orphans Court. It then, on April 14th, 1932, filed a petition to the Orphans Court for a decree of distribution, alleging therein that doubt had arisen as to whether the decedent, at the time of her death, was domiciled in New Jersey or in New York. If her domicile was in New York, distribution under the law of that state would be different from distribution under the law of this state. On June 29th, 1932, Ina P. Hatch, as administratrix of the estate of Mercie E. Hatch, deceased, who was one of next of kin of Mary E. Collins, filed a petition with the surrogate of Essex county in which the alleged facts relating to Mary E. Collins and her estate were set forth and a prayer made that the general letters of administration on her estate be opened and set aside, and that special letters of administration upon her estate as a non-resident be issued to the Savings, Investment and Trust Company, to the end that distribution might be made in accordance with the laws of New York. A rule to show cause was thereupon made by the surrogate and a copy thereof served upon all of the known persons who might benefit from her estate, either under the laws of New Jersey or of New York. On the return date of this rule, August 9th, 1932, a hearing on the petition and rule was held by the surrogate. Under Pamph. L. 1917, ch. 133, the surrogate is given authority for good cause to open, vacate and set aside any decree made in his court.

Caleb and Margaret Collins, his wife, resided at Woodmere, Long Island, New York State, for almost forty years. The decedent, Mary E. Collins, was their only daughter. Throughout her infancy and during her majority and until her death she was mentally incompetent. In 1924, her mother, Margaret Collins, died at Woodmere. Soon thereafter, her father, Caleb Collins, placed the daughter, who was then an adult,with the Misses Kenton of Kearny, New Jersey, as a boarder and under their care. He paid her board and furnished other necessities of life for her until his death. The decedent remained with the Kentons until her death, except for a short time when she was in an institution. Caleb Collins died July 30th, 1925. His will, dated July 23d, 1925, recites that he was resident in Woodmere; the probate proceedings were in Hassau county, Long Island. It is thus established that Caleb and Margaret Collins, were domiciled in Woodmere, Long Island.

During the minority of Mary E. Collins her domicile was in Woodmere, Long Island, because of her father’s domicile there. Blumenthal v. Tennenholz, 31 N. J. Eq. 194; Hess v. Kimble, 79 Id. 454; 81 Atl. Rep. 363; Rinaldi v. Rinaldi, 94 N. J. Eq. 14. See, also, 9 R. C. L. 547. A domicile, once existing, continues until another is acquired. Cadwalader v. Howell, 18 N. J. L. 138; Clark v. Likens, 26 Id. 207; Watkinson v. Watkinson, 68 N. J. Eq. 632; 60 Atl. Rep. 931; Guggenheim v. Long Branch, 80 N. J. L. 246; 76 Atl. Rep. 338; affirmed, 83 N. J. L. 628; 84 Atl. Rep. 21. To acquire a new domicile, both residence in the new locality and intention to remain there are indispensable. Harral v. Harral, 39 N. J. Eq. 279; Rinaldi v. Rinaldi, supra; 118 Atl. Rep. 685; Smith v. Starkey Farms, 8 N. J. Mis. R. 259; 149 Atl. Rep. 759. The decedent, Mary E. Collins, was mentally incompetent as a minor and continued in that condition as an adult until her death. An incompetent person is generally assumed in law not capable of forming an “intention” to change domicile. In re Child, 16 N. J. Eq. 498; Virginia v. Kernochan, 129 Va. 405; 106 S. E. Rep. 367. In a note in 30 A. L. R. 607, are collected cases holding that the domicile of one, who after attaining majority, becomes mentally incompetent, remains the domicile which he had when he became insane. The decedent in this case was incompetent as a minor and continued so until her death. Her domicile was that of her father during her minority. It would then naturally follow that her domicile remained that of her father after she became of age and that such domicile continued until her death. 19 Corp. Jur. 412, 417. This conclusion is supported by the English case of Sharpe v. Crispin (1869), (L. R.) 1 Prob. & Div. 611; 38 L. J. Prob. (N. S.) 17, in which it was held that where a person is of unsound mind throughout his majority, the same reasoning which attaches the domicile of the son to that of the father while a minor, continues to bring about the same result after the son attains majority. It is therefore held in this instant case that Mary E. Collins was at the time of her death, domiciled Woodmere, Long Island, in New York state.

General letters of administration were granted by the surrogate of Essex county, in which county she died, upon representations that she was a resident of that county. In view of the evidence now adduced, general letters of administration were improvidently issued. The administrator should have been appointed under special ancillary letters of administration, sometimes designated as auxiliary letters of administration, in order to administer the assets in this state of a non-resident. Orphans Court act, paragraph 29. The order granting general letters of administration heretofore issued to Savings, Investment and Trust Company will be opened and set aside, and an order granting ancillary (or auxiliary) letters of administration will thereupon be entered issuing said letters to the Savings, Investment and Trust Company to the end that the assets of the decedent in New Jersey may be administered in New Jersey according to the statute and distribution thereafter made in accordance with the laws of New York, in which decedent was domiciled at the time of her death. In re Dellinger, 94 N. J. Eq. 409, 419, 420; 120 Atl. Rep. 27.

Andrew J. Whinery, Surrogate.


text:
    THOMAS J. JOYCE, PLAINTIFF, v. MILTON P. BAUMAN, DEFENDANT.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Teenciiabd and Case.
    For the prosecutor of the rule, Harry A. Stiles.

    For the plaintiff-respondent, Harry W. Doremus.

   Per Curiam.

Judgment was entered by default in the Supreme Court on June 10th, 1931, in an action by Thomas J. Joyce against Milton P. Bauman for rent from October 1st, 1930, to May 31st, 1931. The defendant prosecutes a rule to show cause why the judgment should not be opened and the defendant be permitted to enter a defense. The summons by which the rent action was instituted was tested and actually issued March 3d, 1931, one month before the accrual of the April rent and two months before the accrual of the May rent, assuming that the rental for three months did become due as alleged in the complaint.

Plaintiff alleges that the summons was served by being left with a colored maid at the usual place of abode of the defendant. Defendant denies the sufficiency of the writ and also the legality of the service. It appears, without reasonable dispute in the proofs, that the defendant had no knowledge that the action had been instituted until during or about the month of November, 1931, when he found the summons and complaint in a desk where the illiterate maid, under the impression that the papers had no value, had placed them. It also fairly appears that the defendant has a sufficiently meritorious defense to a substantial part of the action to justify the presentation of the same to a jury.

The inclusion in the complaint of a right of action arising subsequent to the issue of the summons was, we think, clearly irregular. Also, the absence of the defendant, his wife and children from the residence over a period of seven months, the house being left unoccupied except by a maid as caretaker, was such as to raise a serious doubt whether the premises, during that interval — and it was during that period that the attempted service was had — constituted the defendant’s usual place of abode. The defendant has now appeared and submits to the jurisdiction of the court.

Our conclusion is that the rule should be made absolute to the extent that the judgment be opened, the defendant permitted to answer and the cause proceed regularly therefrom, costs to abide the event.


text:
    EM-ESS AUTO SERVICE, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. THOMAS MURRAY, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 25, 1933.

      Before Justices Tkenchabd, Case and Beogan.
    For the plaintiff-respondent, David E. Feldman.

    For the defendant-appellant, Collins ■& Corbin (Edward A. Marhley, of counsel).
   Per Curiam.

This is an appeal by the defendant from a judgment against him entered on a jury verdict in the District Court of the Second Judicial District of the county of Hudson.

The case arises out of an automobile collision wherein plaintiff’s taxicab collided with the defendant’s automobile at the intersection of Ferry and Jefferson streets, Newark. Defendant was driving northerly on Jefferson street. Plaintiff’s taxicab was moving westerly on Ferry street. The collision was between the front of plaintiff’s taxicab and the rear right portion of defendant’s car. The judge, at the end of defendant’s proofs, announced that a verdict would be directed in favor of the plaintiff and against the defendant and pro-ceded to charge the jury on the question of damages.

The appellant sets up, first, that the trial court erred in directing a verdict and, second, that the court erred in refusing to permit counsel for the defendant to sum up to the jury relative to the question of damages.

As to the first point, however clear the proof of the defendant’s negligence may have been, we find that there was proof of contributory negligence by the plaintiff’s driver sufficient to take the case to the jury on that question. The testimony of Policeman Dale was that after the accident the cars were about in the center of the street on the west-bound track; the defendant’s car was on the right in the direction it was going, the front being past the west-bound tracks with rear wheels in the center of the westbound track; the front of the plaintiff’s car was up against defendant’s car — from the right door to the back over the rear wheel of defendant’s car. This testimony places the cars, after the accident, in a position consistent with the proposition that defendant’s car had been moving lawfully along the right or westerly side of Jefferson street, was the first to reach the point of intersection and that plaintiff’s car ran into the rear portion of defendant’s car. Plaintiff’s driver testified that before he reached the street intersection he saw defendant’s car, seventy-five feet from the intersection, approaching at a speed of thirty-five miles per hour. Whether the plaintiff’s driver, knowing of the approach of the defendant’s car, was contributorily negligent in his movements from thence forward was, we think, for the jury to determine; and if the question was for the jury then the latter might, of course, have found affirmatively thereon that thus barred the plaintiff’s recovery.

We think that the second point is not well taken, for .the reason that there was no refusal. The defendant did not ask the privilege of summing up on the question of damages. At the close of the testimony the court announced that a verdict would be directed in favor of the plaintiff and proceeded, without objection from the defendant, to charge the jury. At the end of the charge defendant’s attorney said, “I except to the direction of the verdict and also to the fact that I was not allowed to sum up to the jury relative to the damages.” Defendant was tardy in suggesting the question of argument. At any rate, there was no “refusal,” and it is to that that the point goes.

The judgment below will be reversed for the reason first given and a venire de novo awarded, costs to abide the event.


text:
    NATALE OLIVERI, AN INDIVIDUAL, TRADING AS YOOHOO BEVERAGE COMPANY, PLAINTIFF-RESPONDENT, v. JOHN, GARRET, NICHOLAS, HERMAN, SAMUEL AND BARNEY VANDERMAY, TRADING AS LITTLE FALLS LAUNDRY COMPANY, DEFENDANTS-APPELLANTS, AND DIRK KRUYFF AND RUSSELL BANTA, DEFENDANTS.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Tbenchabd, Case and Bbogan.
    For the plaintiff-respondent, Harry L. Schoen.

      For the defendants-appellants, Evans, Smith & Evans.

   Per Curiam.

The action was brought by Natale Oliveri to recover for damage done to his truck as the result of a collision between that truck, a car belonging to the defendant Dirk Kruyff and another car owned by the VanderMays (defendants-appellants), trading as Little Falls Laundry Company, and alleged to have been driven by one Bussell Banta. At the conclusion of the plaintiff’s ease Banta sought and was granted a nonsuit upon the ground that there was no proof showing him to be the driver of the YanderMay truck. At the same time the YanderMays moved for and were denied a judgment of nonsuit.

The only specification of error set up by the appellants is as follows:

“At the close of the plaintiff's case the attorney for the appellants, who was also attorney for the co-defendant Russell Banta, moved for a nonsuit as to the appellants and the co-defendant Russell Banta. The court granted the nonsuit with respect to the defendant Russell Banta, but refused to grant a nonsuit with respect to the appellants. The court erred in this determination and the appellants are dissatisfied with the same in point of law, by reason of the fact that it was alleged in the state of demand filed by the respondent and admitted in the counter-claim of the appellants that the appellants were the owners of the motor vehicle and that the co-defendant Russell Banta was their agent in the operation of the same at the time of the accident, and that, therefore, the court, in granting the nonsuit in behalf of the co-defendant Russell Banta, should also have granted a nonsuit in favor of the appellants."

In support of that contention the appellants cite numerous cases which, however, are all 'quite beside the point. These cases center upon the proposition that where the basis of an action is the alleged negligence of the driver, the court may not find the driver not to have been negligent and at the same time find the owner negligent, in other words may not acquit the servant and bring a verdict against the master. That rule has no application to the case at bar. The court did not here find that appellants' driver was not negligent. The finding was that Banta was not shown to have been the driver of appellants’ truck; and the proofs as disclosed by the printed state of case sustain that finding.

The appeal having been made to hang upon the disposition of the case against Banta, it follows that the judgment below will be affirmed, with costs.


text:
    HARRY RICH, PLAINTIFF-RESPONDENT, v. INTER-CITY TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Teenchaed and Case.
    Por the plaintiff-respondent, Dominick Marconi.

    Por the defendant-appellant, William V. Rosenkrans.

   Per Curiam.

This action arises out o£ a collision between plaintiff’s automobile and defendant’s bus at a street intersection in the borough of Rutherford. The judge, sitting without a jury, rendered judgment for the plaintiff.

Of the several points sought to be made by the defendant on its appeal we find substance in none except the second, which is that the court erred in reaching a conclusion based on a factual finding not supported by the evidence. The questioned part of the court’s finding is as follows:

“I don’t think the bus driver could see the light at any point after he had passed the point on a line with the bench, unless he stooped low, because the court is familiar with the construction of the bus and knows the sun visor that they have on, and at this particular location, where the bus is coming down hill, I don’t think that he could see that light at any time after he passed Raymond avenue, unless he stooped low to look up. The court will therefore find in favor of the plaintiff for $500.”

The assumed knowledge upon which, the court relied in thus discarding the relevant and material testimony of the bus driver was not obtained from the evidence. Plaintiff’s contention on the point is that the defendant becomes “frivolous when it argues that the judge cannot use, in arriving at his decision, knowledge general to persons in the locality where the collision occurred and where the trial was had, because the judge should have first been sworn as a witness to be allowed to use such knowledge.” We think that the defendant’s argument is not frivolous. It is not apparent that the knowledge was general to persons in the locality or elsewhere. It would indeed be difficult for a party litigant to prepare or to conduct his case if the issue could be disposed of an adverse factual conceptions resting silently in the court’s mind and arising entirely outside the walls of the court room. Against such a situation the party, because ignorant of its existence, is powerless to combat. The common law oath to a juror “well and truly to try the issue between the parties and a true verdict to give according to the evidence" (see 3 Blacks. Com. 365) is closely followed in the present statutory oath to a District Court juror that he “will well and truly try the matter in difference * * * and a true verdict give according to the evidence” (An act concerning District Courts— Revision of 1898 — section 157, Pamph. L. 1898, p. 615).

The judge was sitting without a jury, but we know of no latitude that permitted him to reach a judgment except according to the evidence. Courts may take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence, and jurors may exercise their knowledge of human nature in determining the truthfulness or untruthfulness of a witness; but the present instance is not one of such.

Even where a view of premises, under legislative or judicial authority, has been had by a jury the Court of Errors and Appeals has held that the appeal should be decided upon what appears in the record (Garland v. Furst Store, 93 N. J. L. 127, 137; 107 Atl. Rep. 38), and that the mental impressions received by a jury under such circumstances are not to be taken as evidence adduced in court. Slate Highway Commission v. Lincoln Terminal Corp. (Court of Errors and Appeals), 110 N. J. L. 190; 164 Atl. Rep. 476.

The pivotal fact question in the instant case was what colors were shown by the traffic light as the vehicles of the respective parties entered upon the street intersection. The defendant’s driver had testified that as he entered upon the intersection the light from his direction was green. We think that the court erred in basing its disbelief of that testimony upon the physical arrangement of the sun visor on the defendant’s bus in relation to the grade of the highway and the position of the light — conditions that were not disclosed by the evidence and concerning which the court assumed to have knowledge from sources foreign to the ease.

The judgment below will be reversed and a venire de novo will issue, costs to abide the event.


text:
    FRANK LEES, PLAINTIFF-RESPONDENT, v. ROCCO MACCHIA AND ANTHONY ROGAC, DEFENDANTS-APPELLANTS.
    Submitted October 14, 1932
    Decided March 25, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the plaintiff-respondent, Theodore Charney.

    For the defendants-appellants, Collins <& Corbin {Edward A. Markley, of counsel).
   Per Curiam.

The action was to recover for property damage sustained by the plaintiff as the result of an automobile accident wherein plaintiff’s ear, parked at the roadside, was damaged as a result of a collision between the car owned by the defendant Macchia and driven by the defendant Eogac and another car owned and driven by persons neither of whom were brought into the action as parties. The defense was that the accident was caused solely through the negligence of the driver of the third car.

The progress of the trial and the injection of error is disclosed by the agreed state of ease, which reads in part:

“The parties to the suit and witnesses were sworn in the same time and in behalf of the plaintiff-respondent, Prank Lees, Thomas Dean, the driver of the other car involved, testified to facts tending to place the blame of the accident upon the defendants-appellants. Officer Simpson, who arrived sometime after the accident, and a brother-in-law of Dean testified also as to the positions of the cars tending to place the blame upon the driver of the defendant-appellant’s car. Plaintiff then rested and the defendants-appellants through their attorneys then started the direct examination of Officer Eugene Wild who was present at the scene of the accident. In the middle of Officer Wild’s direct testimony, the judge interrupted stating that he had made up his mind about the case, that he regarded both the defendants-appellants and the driver of Dean’s car of being guilty of contributory negligence and refused to hear the balance of Officer Wild’s testimony or permit the driver of defendant-appellant’s car or the owner of the car, Eocco Macchia, who arrived shortly thereafter at the scene of the accident, to testify.”

The court’s disposition of the matter in refusing an opportunity to the defendants to prove their case was so clearly error that we think little comment further than the above quoting of the record is necessary. Objection was made and exception taken to the court’s refusal to receive the testimony. The United States constitution in section 1 of the fourteenth amendment provides that no state shall deprive any person of life, liberty or property without due process of law, and it was held in Hovey v. Elliott, 167 U. S. 409; 42 Law Ed. 215, that due process of law signifies a right to be heard on one’s defense. See also section 1 of the fifth amendment. Our state constitution, article 1, section 1, gives similar protection in providing that amongst the natural and unalienable rights of the people are those of possessing and protecting property; and property is indeed poorly protected if it may be taken at the instance of another without the right of defense.

We have received no brief on behalf of the respondent, perhaps because there is nothing to be said in support of the procedure.

The judgment below will be reversed to the end that a venire de novo issue, costs to abide the event.


author: Ackerson, C. C. J.

text:
    LOUISA STABEL AND HENRIETTA HETTERICH, PLAINTIFFS, v. CHARLES C. GERTEL, DEFENDANT.
    Decided March 27, 1933.
    For the plaintiffs, Benjamin J. Darling.

    For the defendant, Gross & Gross.

   Ackerson, C. C. J.

This is an action in ejectment and the answer thereto is a general denial.

The matter now comes before me for decision, without a jury, upon an agreed state of facts. Turning to this agreement I find that Edward Schoch died testate on May 19th, 1916, seized of the premises in question in this action. His only heirs-at-law were his three daughters, Louisa Stabel, Henrietta Hetterich (who are the plaintiffs herein) and Margaret Gertel, wife of Charles C. Gertel, the defendant. His will was probated by the surrogate of Hudson county on J une 10th, 1916, and by the third item thereof he devised the premises in question to his daughter, Margaret Gertel, in fee-simple. She was married to the defendant, Charles C. Gertel, on October 23, 1903, this being the first marriage of either party. Ho children were born of the marriage, and on March 11th, 1932, the said Margaret Gertel died intestate, survived by her two sisters, who are the plaintiffs herein, and her husband, the defendant. Since March 11th, 1932, the defendant has. been in possession of said premises, has occupied a part hereof, has collected the rents, issues and profits therefrom, which he retains, and he refuses to surrender possession to the plaintiffs.

The question to be decided is whether the two plaintiffs as the surviving sisters of said Margaret Gertel are.entitled to the possession of the premises in question, or whether her husband, the defendant, is entitled thereto.

At the time of his marriage, October 23d, 1903, the defendant was entitled to a prospective right of curtesy in the lands his wife then owned or which she might thereafter acquire, such prospective right to become inchoate upon the birth of issue of the marriage and consummate upon his surviving her. Curtesy consummate was then the right to hold said lands for his life in case he survived his wife. Reese v. Stires, 87 N. J. Eq. 32; 103 Atl. Rep. 679; Bucci v. Papovich, 93 N. J. Eq. 121; 115 Atl. Rep. 95; affirmed, 93 N. J. Eq. 511; 116 Atl. Rep. 923. In the event of his wife’s death without having had issue, the defendant could take nothing, and said lands would descend to his wife’s sisters. 2 Comp. Slat. 1910, p. 1918, § 2.

Since the defendant’s wife died without having had issue born of her marriage to the defendant, it is apparent, that unless legislation passed subsequent to said marriage conferred some estate upon the defendant as the surviving spouse, he had no interest in the premises in question at the time of his wife’s death.

Without detailing all of such subsequent legislation, it is sufficient to say that two statutes dealing with the subject of the interest of a surviving husband in the lands of his deceased wife have emerged therefrom, which were in force at the time of the death of the defendant’s wife. The first of these was intended to create an estate by descent in certain cases, while the second pertains to rights arising purely out of the marital relation by way of curtesy.

The first of these two acts was passed in 1926, and is entitled “A supplement to an act entitled 'An act directing the descent of real estate,’ &c. Pamph. L. 1926, p. 77. This act provides inter alia, as follows:

“Hereafter, when any married person shall die seized of any lands, tenements or hereditaments, in his or her right in fee-simple without devising the same in due form of law and without leaving lawful issue but leaving a husband or wife, him or her surviving, then and in that case the said person so surviving whether it be husband or wife, shall take an entire estate in fee-simple in the deceased’s lands, tenements or hereditaments; provided, however, this act shall only apply to property of which husband or wife may die seized of, which had been purchased by husband or wife during coverture.”

The second act was passed in 1927, to take effect January 1st, 1929, and is entitled “An act relative to curtesy.” It provides that the husband of a woman who dies intestate, or otherwise, shall be endowed for life of one-half of the lands whereof his wife “was seized of an estate of inheritance, at any time during the coverture,” whether lawful issue be born alive or not. Pamph. L. 1927, p. 128.

That this latter act was not intended to repeal the former, but that both were intended to stand together, was definitely expressed by the legislature in a supplement to Pamph. L. 1927, p. 128, which supplement was approved March 28th, 1927, to take effect January 1st, 1929 (Pamph. L. 1927, p. 474), wherein it is provided that nothing contained in Pamph. L. 1927, p. 128 (the “Curtesy act”), “shall be construed to in any way affect or impair the provisions” of Pamph. L. 1926, p. 77, which is the act amending the “Descent act,” as aforesaid. Nor is this last mentioned act in any way affected by Pamph.. L. 1928, p. 380, which merely amends the “Curtesy act” (Pamph. L. 1927, p. 128) by substituting the clause “whether issue be born or not” for the clause “whether lawful issue be born alive or not” as appearing in the original act.

It is apparent, therefore, that the legislature intended, by the foregoing statutes, to provide two different methods by which a husband might acquire an estate in the- lands of his wife, one by descent as the heir of his wife under certain specified circumstances, the other by curtesy, arising simply from the marital relationship alone.

There is no incongruity in saying that a husband may take lands as the heir of his wife, for he takes simply by descent that of which his wife was seized at the time of her death, and which must go to some heirs, in the absence of any testamentary disposition. The legislature certainly has the power to make a surviving husband, as well as a child, an heir. May v. Fletcher, 40 Ind. 575, 581. And that is what Pamph. L. 1926, p. 77, really does for not only is it specifically designated as a supplement to “An act directing the descent of real estate,” but the act itself, in addition to other restrictions, operates only on land of which the deceased spouse “shall die seized * * * without devising the same,” &c.

The “Curtesy act” (Pamph. L. 1927, p. 128, as amended by Pamph. L. 1928, p. 380) removes the common law requirement of issue being born alive of the marriage before curtesy could become inchoate or consummate, and puts curtesy on exactly the same footing as dower (Pamph. L. 1927, p. 124), as a present, fixed and vested valuable-interest of a husband in his wife’s estate of inheritance in land of which she is seized, defeasible upon predeceasing her. Walker v. Bennett, 107 N. J. Eq. 151; 152 Atl. Rep. 9. It therefore materially effects the right of curtesy, and gives a husband a present interest to a degree he did not before possess, and imposes an additional burden upon the wife’s land not previously existing, by removing one of the conditions theretofore essential to curtesy becoming consummate.

It is now settled in this state that legislation which affects, enlarges or diminishes the right of dower or curtesy, can only operate on land acquired after its passage, since to make it applicable to lands previously acquired would be contrary to constitutional inhibition. Walker v. Bennett, supra; In re Alexander, 53 N. J. Eq. 96; 30 Atl. Rep. 817;, Gerhardt v. Sullivan, 107 N. J. Eq. 374; 152 Atl. Rep. 663; Riley v. Riley, 107 N. J. Eq. 372. It follows, therefore, that the “Curtesy act” of 1927, cannot confer any interest upon the defendant because the land in question was acquired by defendant’s wife prior to its passage.

The defendant, however, does not claim an interest under the “Curtesy act” of 1927, but insists that he is entitled to an estate in fee-simple in the premises in question by virtue of the above-quoted supplement to the “Descent act.” Pamph. L. 1926, p. 77.

The plaintiffs argue that this act does not apply for two reasons. First, it is claimed that it cannot be held to give any estate in lands acquired by the wife prior to the passage of such legislation under the rule just noticed in considering the applicability of the “Curtesy act” of 1927. The difficulty with this contention is that Pamph. L. 1926, p. 77, is an act pertaining to descent, and in effect makes the husband an heir of his wife under certain circumstances, and unlike the “Curtesy act” of 1927, only applies to land of which the wife dies seized without issue and without devising the same, and does not create a present vested interest prior to the wife’s death as in the case of curtesy. The power of the legislature over dower and curtesy rights is different than its power over the descent of real estate. As was said in the case of Gerhardt v. Sullivan, supra:

“It is not sound reasoning to liken this power” (over dower) “to that exercised by the legislature over the law of descent and of wills. These laws confer privileges of devolution or of transfer of property at death which the legislature, in its wisdom, may change or altogether abolish. They do not affect rights safeguarded by the fundamental law and immune to legislative action.”

It is true that the case of McGoldrick v. Grebenstein, 108 N. J. Eq. 335; 154 Atl. Rep. 844, seems to give countenance to the plaintiffs’ contention that Pamph. L. 1926, p. 77, does not apply to land acquired by a wife prior to its passage, but the distinction between legislation pertaining to curtesy and that pertaining to descent, hereinabove noticed, seems not to have been considered by the court, and the rule applicable to' dower and curtesy was applied indiscriminately to all legislation pertaining to a husband’s interest in his wife’s real estate. In Weyer v. Weyer, 106 N. J. Eq. 112, 117; 150 Atl. Rep. 232, it was held that the last mentioned statute was retroactive so as to include land purchased before the act took effect, and with this conclusion I am in complete accord.

The second reason assigned by plaintiffs against the applicability of Pamph. L. 1926, p. 77, to the lands in question is that they are not such as Trad been purchased” by defendant’s wife during coverture as required by the act, because she acquired title thereto by devise from her father. In other words, plaintiff’s contention is that the word “purchased” is not to be given its technical legal meaning, but its common meaning of acquired for a consideration. With this contention I do not agree.

In construing this word as it appears in the statute in question, Vice-Chancellor Berry in the course of his opinion in Malague v. Marion, 107 N. J. Eq. 333; 152 Atl. Rep. 637, said:

“Title to real estate is, of course, acquired either by descent or by purchase. Title by descent is that title which one acquires by law as heir to the deceased owner. Title acquired in any other way must be by purchase.”

The same Vice-Chancellor, in considering the same statute in Borquist v. Ferris, 112 N. J. Eq. 324, 327; 162 Atl. Rep. 38, said:

“The weight of authority inclines toward the acceptance of the technical meaning of the word in legislative enactments.” * * * “It is urged by the defendant that the legislative design was to protect husbands and wives who had contributed effort or money, or both, in the acquisition of real estate; and for that reason the statute applies only to the property actually acquired during the marriage, the reasonable assumption being that it was acquired by their common effort. It is entirely possible that such a construction would be equitable and convenient; but it is too speculative and conjectural.” For the reasons already stated, I have reached the conclusion that the defendant is entitled to an estate in fee-simple in the lands in question by virtue of Pamph. L. 1926, p. 77.

The court, therefore, finds that the defendant is entitled to the possession of the whole of the premises described in the complaint as against the plaintiffs.


text:
    REBECKA FAST, PLAINTIFF-RESPONDENT, v. MAX PECAN, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 27, 1933.
    Before Bbogan, Chibe Justice, and Justices Teehciiaed and Case.
    For the appellant, Maurice J. McKeown.

    For the respondent, no argument submitted.
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury which was directed by the trial judge. On this appeal no argument was submitted by the respondent.

The suit was brought to recover for damages arising from the negligence of Max Pecan and Edward Melbourne in the operation and control of their respective automobiles whereby the plaintiff’s automobile was injured.

It appears that after the jury was empanelled and sworn, the plaintiff submitted to a voluntary nonsuit as to defendant Edward Melbourne, and the case then proceeded against defendant Pecan alone and resulted, as we have stated, in a verdict being directed for the plaintiff.

The appellant’s first point is that the defendant-appellant, should have been permitted to introduce testimony that the plaintiff had, for a consideration, executed a covenant not to-sue the co-defendant, Edward Melbourne, and testimony as to the amount of such consideration, “for the purpose of mitigating damages as to the defendant, Max Pecan, in the event that the jury decided that the damages sustained by the plaintiff were the proximate result of the negligence of the defendant, Max Pecan, in the control and operation of his automobile.”

We find no fault with the ruling. 'Certainly if the jury found the damages sustained were the proximate result of the negligence of Pecan, he was not entitled to contribution from another. It may be of interest to note that in Public Service v. Matteucci, 105 N. J. L. 114; 143 Atl. Rep. 221, it was held that whenever the damages are the product of the contributory misfeasance of more than one person, while an. action will lie against each of the wrong-doers or against both, neither one can claim contribution from the other so as-to distribute the loss equally among themselves, the reason being that the law will not undertake to adjust the burdens-of misconduct.

But we believe that the trial judge improperly directed a verdict for the plaintiff, as the appellant contends. The judge-admittedly did so upon tile strength of the testimony of the defendant when called by the plaintiff, and upon that alone.

The state of the case, as settled by the trial judge, disclosed that the defendant’s testimony was that he was driving his automobile northerly on Hunterdon street; that, as he approached the intersection of South Orange avenue, he slowed down, shifted into second gear, and as he shifted into second gear he observed to his right a trolley car proceeding westerly on South Orange avenue at a moderate rate of speed; that he then proceeded across the intersection at about ten or twelve miles an hour and when he got in front of the trolley car, which was then fifteen feet away, he observed for the first time a taxicab right alongside of the trolley car; that he continued on, and, when the front of his car had already crossed the northerly crosswalk of Hunterdon street, he was struck in the right rear wheel by the front of the taxicab which was driven by Melbourne; that the result of the collision was that defendant’s automobile was thrown across to the westerly side of Hunterdon street and struck the automobile in which the plaintiff was riding and which was proceeding in a southerly direction along Hunterdon street towards South Orange avenue. Incidentally it should be noted that other testimony was to the effect that when defendant entered •upon the intersection the trolley car was one hundred feet away from Hunterdon street, going at a moderate rate of speed.

We consider that the testimony presented a question for the jury, and not for the court, as to the defendant’s negligence.

The judgment will be reversed, and a venire de novo awarded, costs to abide the event.


text:
    CLAIRE RUBIN, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. THOMAS C. RUBIN, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. IRENE SAPERSTEIN, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. GUS HOLDER, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. MAX HOLDER, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. FAY RAPPAPORT, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT. NATHAN RAPPAPORT, PLAINTIFF-RESPONDENT, v. DOMINICK SENNA, DEFENDANT-APPELLANT.
    Decided October 14, 1932
    Decided March 25, 1933.
    Before Justices Trenci-iard, Case and Brogan.
    Bor the plaintiff s-respondents, Michael G. Alenich.

    Bor the defendant-appellant, Samuel H. Nelson.

   Per Curiam.

Seven eases are involved in this appeal, all of them arising out of the same automobile collision and being against the same defendant. There is a single set of facts settled by stipulation of the parties. Judgments were rendered by the judge, sitting without a jury, in varying amounts in favor of the several plaintiffs and against the single defendant.

The appeals are by the defendant who presents two contentions : first, that the plaintiffs should have been nonsuited because they failed to show any acts of negligence on the part of the defendant, and, second, that a judgment should have been entered in favor of the defendant as a matter of law because the plaintiffs offered no testimony rebutting the defendant’s explanations. In essence there is but one question: Do the proofs furnish support for the factual finding of the court below ?

An automobile driven by plaintiff Max Holder and containing as passengers three of the remaining plaintiffs having been driven easterly along Clinton avenue in the city of Newark came to a stop along the curb. Defendant’s taxicab rammed that car from the rear. The injuries and damages ensued from that collision. The controversy was one of fact as to whether the circumstances under which plaintiffs’ car was driven to the curb and stopped were such as to evince negligence on the part of the driver of that ear and an absence of negligence on the part of the driver of the taxicab. The trial judge found a set of facts, of which the following are some:

1. The automobile of the plaintiff Holder was at a standstill for at least five seconds before the accident occurred.

3. The operation of the taxicab by the defendant’s agent was negligent and careless.

4. Defendant’s taxicab was being operated at an excessive rate of speed in view of the conditions of the road and the state of the weather.

6. The plaintiffs were free of any contributory negligence. There is evidence that the pavement was wet and the weather rainy; that plaintiffs’ car having been driven carefully and at a speed of from eight to ten miles an hour was gradually turned toward the curb, stopping within a few inches therefrom; that the car had been standing still from five to ten seconds when defendant’s taxicab crashed into the rear of plaintiffs’ car with such force that the latter was hurled forward a distance of twenty to twenty-five feet.

The testimony given by the defendant’s driver was at variance with the foregoing but served only to raise a fact issue which, by the court’s finding, was resolved against the defendant. The force of the impact by which plaintiffs’ car was forced forward was one of the elements in which the finding of the court below has support. We find no error.

Let the judgment below be affirmed, with costs.


text:
    MODERN SECURITY COMPANY OF PHILADELPHIA, PLAINTIFF, v. ARSENIO DE VITO AND FILOMENA DE VITO, DEFENDANTS.
    Argued October 14, 1932
    Decided March 27, 1933.
    Before Justices Tbenchaed and Case.
    Por the defendants-appellants, Peier Hofstra.

    Por the plaintiff-respondent, Herman J. Harris.

   Per Curiam.

This is an application by the defendants to set aside a judgment entered by the plaintiff against the defendants by confession on a bond and warrant of attorney, on September 24th, 1931, for the sum of $295 as damages and $10 as costs.

The facts are these:

On September 12th, 1929, the defendants, being desirous of equipping their property at Haledon, New Jersey, with a steam heating system, entered into a contract with Modern Home Heating Company of New Jersey for the installation of such system, for the sum of $720 payable in twenty-four monthly installments, twenty-three of which were to be in the sum of $25 each and the twenty-fourth installment was to be in the sum of $145. The first installment was to be payable on December 15th, 1929. At the time of the execution of this contract the defendants executed a bond and warrant of attorney for the confession of judgment, upon which the present judgment was entered, and which permitted the entry of judgment upon default of the undertaking in the contract. After the heating company had done the work, and being desirous of raising money, they offered to sell the contract to Modern Security Company, the plaintiff herein, which is in the finance business. Before purchasing the contract the plaintiff inquired from the defendants whether the contract price and payments as agreed upon were correct, and also whether the work had been completed to their satisfaction, and in effect was informed that it was all so. Thereupon the heating company for a valuable consideration assigned the-contract and bond and warrant of attorney to the plaintiff. On September 24th, 1931, after default occurred, under the terms of the contract, and had existed for a period of five-months, the plaintiff caused judgment to be entered on the bond and warrant of attorney for the balance due on the contract. On January 4th, 1932, the defendants made application to the late Mr. Justice Daly to open the judgment. Before such application was determined Mr. Justice Daly died, and the matter was submitted to Mr. Justice Brogan who denied the application to reopen the judgment.

He did so upon the authority of Modern Security Co. v. Lockett, 143 Atl. Rep. 511.

The matter was then brought to our attention and the propriety of Mr. Justice Brogan’s action has been argued and considered.

We think that such action was entirely right and therefore the application addressed to us is denied, with costs.


text:
    THE STATE, EX REL. MICHAEL A. SANGARESE, RELATOR, v. ALBERT H. HOLLAND, JUDGE OF THE COURT OF COMMON PLEAS, AND E. BERTRAM MOTT, CLERK OF THE COUNTY OF MORRIS, RESPONDENTS.
    Argued October 14, 1932
    Decided March 27, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the relator, Minium <& Weinberger.

    For the respondents, Orville V. Meslar.

   Per Curiam.

This is a motion of the respondents to dismiss an alternative writ of mandamus because of failure to prosecute the same. The situation is this:

Michael A. Sangarese, the relator, who was elected a justice of the peace in Morris county, undertook to qualify by the presentation of two bonds. He holds an alternative writ commanding the judge of the Court of Common Pleas of the county of Morris to approve “one of the bonds” which relator filed for approval, or show cause to the contrary. The judge and the clerk made a return in which, among other things, it is set forth that not one but two bonds were presented by the relator at the same time for approval; that neither bond had any justification of the alleged sureties as to residence or freehold qualifications, and further that no bond was properly submitted to respondents by relator at any time before May 1st, 1931, in accordance with the statutory requirements.

Ho further pleading was filed by the relator. He did, however, give notice of trial of issues of fact at the Morris Circuit. Meanwhile, the time for pleading having expired, the respondents gave this notice to dismiss the writ.

The statute (Comp. Stat., p. 3214) requires that when the return is made, the person prosecuting the writ may demur or plead to the return or traverse any material fact contained therein, and the person making such return shall reply, take issue or demur. The statute has not been followed by the relator. We, however, decline to dismiss the writ at this time. He may have permission, following promptly the filing of this opinion, to act pursuant to the statute, and to pay respondents’ costs on this motion, and in default thereof the writ will be dismissed.


text:
    Hudson County Circuit Court.
    DANIEL A. FERENCZI, PLAINTIFF, v. THE NATIONAL SULPHUR COMPANY, ALSO KNOWN AS NATIONAL SULPHUR COMPANY, INCORPORATED, A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT.
    Decided January 9, 1933.
    For the plaintiff, Turteltaub & Turteltaub.

    For the defendants, Wurts <& Plympton.

   Ackerson, C. C. J.

The amended complaint alleges that plaintiff and defendant entered into a certain agreement on January 18th, 1932, as evidenced by an exchange of letters (three in number), which are incorporated in the pleading by reference, from which the defendant agreed to hire the trucking service of the plaintiff, and the plaintiff agreed to furnish such service to certain specified points at agreed rates for a period of one year, for the transportation of all of the material of the defendant to the said points of destination for said period. It is further alleged that the plaintiff, pursuant to said alleged agreement, proceeded with the handling of all of the defendant’s trucking to said points of destination in accordance with the terms of said agreement until August 29th, 1932, on which date the defendant, without just cause, refused to give the plaintiff any further work. The amended complaint then alleges an offer of performance by plaintiff, and claims damages for the breach of said agreement.

Defendant now moves to strike out the amended complaint as not disclosing a cause of action because the alleged agreement is unilateral and lacks mutuality and hence is not enforceable.

The first of the three letters upon which the alleged agreement is based was written by the plaintiff to the defendant on January 8th, 1932, and is as follows:

"In answer to your request for trucking rates from your plant at Bayonne, N. J., to the following points of destination, they are:

(Here follows a schedule of rates.)

Bates on other points not mentioned above will be given upon request.

Thanking you for your inquiry, I remain,

Yours very truly,

D. A. Feeeeczi.”

On January 18th, 1932, defendant answered as follows:

"We acknowledge receipt of your letter of the 8th inst., quoting cartage rates on contract to handle our cartage to different points.

We will accept your bid with the understanding that it is good for one year and that you will have ample equipment ready at all times to handle our business.

We would thank you to confirm this letter, and have you start working on Wednesday, January 20th, 1932.”

To which plaintiff replied on January 23d, 1932:

"I am in receipt of your letter of January 18th, acknowledging my letter of January 8th, quoting you my trucking rates from your plant at Bayonne to different points of destination.

It pleases me very much to know that you have accepted my rates for a contract that will run for a period of one year, at which time it may bo renewed.

I will at all times have ample equipment to handle your business and will serve you to the best of my ability, which I know will be most satisfactory to you.”

The real ground of this motion is that there was no promise on the part of the defendant to ship its goods in whole or in part by the plaintiff’s trucks.

The cardinal rule for the construction of written contracts is to ascertain and give effect to the mutual intention of the parties. So, to ascertain the intention of the parties, if more than one construction of the language used is possible, the circumstances surrounding the transaction may be considered as well as the written document. Basic Iron Ore Co. v. Dahlke, 103 N. J. L. 635, 638. In the case at bar the complaint alleges in effect that the contract was in operation for more than seven months, during which time plaintiff handled all of defendant’s trucking business to said points of destination in accordance with the terms of said agreement.

In passing upon the validity of contracts of this character the general rule is that it will be presumed that the parties thereto intended to make a binding and enforceable obligation. Baker v. Murray, 137 Okla. 288; 74 A. L. R. (Anno.) 477. As between two equally reasonable constructions, we should adopt the one which makes the contract valid, as against that reaching a contrary result. Pittsburgh Plate Glass Co. v. V. H. Neuer Glass Co., 253 Fed. Rep. 161.

Contracts to furnish such material as one may need or require in his business for a specified time, are, by the weight of authority, held mutual and binding on the parties, where the nature of the purchaser’s business is such as to make the quantity of the article he will need subject to a reasonably accurate estimate. The basis of the rule is that the purchaser’s obligation to buy to the extent of his requirements or needs supplies mutuality. Pittsburgh Plate Glass Co. v. V. H. Neuer Glass Co., supra; Lima Locomotive, &c., Co. v. National, &c., Co., 155 Fed. Rep. 77; 11 L. R. A. (N. S.) 713; 43 L. R. A. 730; Loudenback Fert. Co. v. Tenn, &c., Co., 121 Fed. Rep. 298; 61 L. R. A. 402; Inman v. Dudley, &c., Co., 146 Fed. Rep. 449; 74 A. L. R. (Anno.) 477; Atlantic Pebble Co. v. Lehigh Valley Railroad Co., 89 N. J. Eq. 336; 98 Atl. Rep. 410; East v. Cayuga Lake Ice Line, 21 N. Y. Supp. 887; Wells v. Alexander et al., 130 N. Y. 642; Ehrenworth v. Stuhmer, 229 N. Y. 210; Schlegel Manufacturing Co. v. Peter Cooper Glue Factory, 179 N. Y. Supp. 271; Reeves v. Fulton Market, 173 N. Y. Supp. 568.

The doctrine of a purely executory contract, where the reciprocal promises depend upon each other for support, is, of course, elementary. The difficulty is to determine what are and what are not such promises.

In the case of Atlantic Pebble Co. v. Lehigh Valley Railroad Co., supra, the court after citing two cases as illustrative of what promises are reciprocal and what are not proceeded as follows:

“Numerous other cases, illustrative both of promises not sufficient to constitute a valid consideration and promises which are sufficient, are cited in Williston on Sales, 798.

“The distinguishing principle may possibly be stated to be that where the promise has for its subject-matter something which by the terms of the contract is left to depend for its very existence upon the future election of the promisor, it will not form a valid consideration for an executory contract, but where such subject-matter, in the normal and bona fide course of event as contemplated by both parties, is not thus left dependent, it will form such valid consideration, although there may be left elements of quantity, requirement, selection, &c., agreed to be left to the future discretion of the promisor.”

In the case of Reeves v. Fulton Market, supra, the court very clearly points out the distinction above referred to in the following language:

“An agreement to furnish such goods as shall be needed by the established business of the acceptor during a limited time, is binding, and may be enforced, because it contains the implied agreement that the acceptor will purchase from the offerer all the articles that its business shall require during the period in question. * * * An accepted offer to sell goods at specified prices during a limited time in such amounts and quantities as the acceptor may want or desire in his business, without any statement of the amount or quantity, is held to be without consideration and void, because the acceptor is not bound to want, desire or take any of the articles contemplated.”

In the case sub judice the defendant is a manufacturer and was obligated to engage trucking facilities for the delivery of its merchandise such as the contract in question provides for, and the obligation of arranging for such trucking facilities lo the extent of its needs, supplies the mutuality in the agreement. The defendant had an established business, and its trucking requirements could be approximately estimated. It was sufficient consideration for such a contract, that the duty existed of giving to the plaintiff such trucking business as the needs of the defendant’s enterprise required.

So far as a promise on the part of the defendant to ship all of its goods by the plaintiff’s trucks to the designated points is concerned, it seems clear that such was the intention of the parties.

In the case of Ehrenworth v. Stuhmer, supra, the court said : “It is contended that there was no express promise to purchase any particular amount of the black bread, but this promise, even if it be not expressed, is implied. The plaintiff impliedly, if not expressly agreed to buy all the black bread which he can use on his route.”

In the case of Mills-Morris Co. v. Champion Spark Plug Co., 71 Fed. Rep. (2d ed.) 38; 74 A. L. R. (Anno.) 478, the court said:

“While the seller did not agree in express terms to sell to the buyer yet the obligation was clearly implied in its undertaking, and the requirements that is expected of the buyer, * * *. The buyer had an established trade, and there was implied, in the language referred to, an obligation to buy from defendant all the plugs that plaintiff should actually, in good faith, and in the normal course of its business, require in supplying its business.”

In the case at bar, there is no question but that the parties intended that the plaintiff was to take care of all of the trucking needs of the defendant for a period of one year to certain points of destination, and that the defendant promised to give all of its trucking work during the said period to the plaintiff. The only part of the agreement which is not definite is the quantity of the defendant’s requirements in the normal operation of its business; and since it is evident that the parties contemplated a binding contract and it was not left to the whim or wish of the defendant as to the quantity, but was left to its actual business requirements, this contract must be considered as valid and binding upon both parties in view of the authority herein above cited.

The defendant’s motion to strike out the plaintiff’s complaint will, therefore, be denied, and an order may be presented in accordance with the conclusion thus reached.


author: Backes, V. C.

text:
    Arthur Gorman Gallagher, complainant, v. Commercial Credit Corporation and Grove Motors, Incorporated, defendants.
    [Decided April 11th, 1933.]

      Messrs. McCarthy ■& McTague, for the complainant.

      Mr. Clarence A. Ward, for the defendants.
   Backes, V. C.

Gallagher bought a car from Grove Motors, Incorporated, on condition to pay for it in twelve monthly installments of $180 each. Grove Motors, Incorporated, sold the contract and the accompanying note to Commercial Credit Corporation, a finance company. Gallagher defaulted in the eleventh and twelfth payments. To raise money for that and other needs, Gallagher gave Grove Motors, Incorporated, a bill of sale for his car and immediately bought it back on a conditional sale to pay $900 in installments for which he gave his note. Grove Motors, Incorporated, sold the note and conditional bill of sale to Commercial Credit Corporation, receiving its check for $778, the difference being the discount, expenses, &c. Bor the arrears on the first bill of sale, $360, the Grove Motors, Incorporated, gave its check. The bank in which Grove Motors, Incorporated, deposited the $778 check and upon which it drew its $360 check failed; Grove Motors, Incorporated, couldn’t pay. Gallagher got nothing out of the $778 except a repair bill for $102.40 he owed Grove Motors, Incorporated, for which he got credit. After the $360 check was dishonored, Commercial Credit Corporation seized the car for default in the last two installments of the first conditional sale. Gallagher paid the $360 and got his car. Later the car was again taken for default in the second contract. He then filed this bill to compel the Commercial Credit Corporation to return the $900 note and the second conditional bill of sale and to surrender the car, charging failure of consideration. The master to whom the matter was referred found in favor of Gallagher, holding that Grove Motors, Incorporated, was the agent of Commercial Credit Corporation in receiving the $778 check and as it failed to pay Gallagher there was a total failure of consideration and that Gallagher was entitled to the note, the bill of sale and the car. The master erred. The scheme of raising money to pay off the old debt and have some in pocket, by negotiating a new loan from Commercial Credit Corporation was suggested by Grove Motors, Incorporated, to the willing Gallagher, and Grove Motors, Incorporated, was not financially disinterested, for it saw in the loan a chance to collect its own $102.40 repair bill. Grove Motors, Incorporated, prepared and Gallagher signed the two bills of sale and the note and delivered them to Grove Motors, Incorporated, to be negotiated with Commercial Credit Corporation. Grove Motors, Incorporated, and Commercial Credit Corporation have nothing in common. They dealt at arms’ length as borrower and lender; Grove Motors, Incorporated, being surety for the loan. The master hung his decision of agency on this single incident: To bind Grove Motors, Incorporated, as surety, it signed a common form of “Packard Eepurchase Agreement” to repurchase all cars repossessed by the Commercial Credit Corporation upon default of installment payments on notes discounted for it by the credit corporation at the price of unpaid installments. The provision that influenced the master reads: “It is agreed that you will set up for us (Grove Motors, Incorporated) a reserve of ten dollars ($10) for each car financed. As of January 31st and July 31st you will pay us from said reserve such amount thereof as in excess of two per cent. (2%) of the balance outstanding on notes purchased from us hereunder.” The reserve was set up. Its effect is to rebate and credit to dealers-borrowers $10 of the discount charged when notes are purchased. It is not compensation — pay—as the master supposed, and affords no inference of agency. The lender and borrower were principals as were Grove Motors, Incorporated, and Gallagher. Gallagher trusted Grove Motors, Incorporated. He gave to it the credentials upon which to borrow from Commercial Credit Corporation. It borrowed on Gallagher’s securities and Gallagher must look to it for the proceeds. He is creditor to Grove Motors, Incorporated, and debtor to Commercial Credit Company.

The exception is sustained and the bill will be dismissed.


author: Leaking, V. C.

text:
    Haddonfield Safe Deposit and Trust Company, complainant, v. Clarence U. Liggit, defendant.
    [Decided July 26th, 1929.]

      Mr. D. Trueman Stackhouse, for the complainant.

      Mr. George B. Evans, for the defendant.
   Leaking, V. C.

I entertain the view that restraint must be retained pending final hearing. To remove that restraint would be wholly destructive of the corpus of the property on which the lien of the mortgage is claimed by complainant.

The sole question for solution is whether plants growing in pots and in the soil of the elevated trays referred to in the affidavits are included in the lien of complainant’s mortgage. I presently think it reasonably clear that they are. In reading the entire description contained in the mortgage following the metes and bounds description of the land, it seems impossible to view that part following the declaration of lien on after-acquired property and the added declaration of “it being the intention hereof that said real estate, buildings and other property and appurtenances shall be and are hereby conveyed as an active, going and operating plant for the carrying on of the greenhouse and nursery business,” as segregated from that defined intent, and intended.to relate only to products of the company then existing. With the specific after-acquired property provision embracing appurtenances and followed by the general intent, so expressed, the language following that expressed intent can easily be understood as also intended to refer to after-acquired products in use as a part of the business operations of the nursery.

'But aside from that question of construction of the language so used, I am presently impressed that growing plants, whether in pots or in the trays referred to in the affidavits on file, cannot, as against the mortgagee in this mortgage, be seized by a creditor of the mortgagor as personal property. As a greenhouse and nursery, expressly contemplated and authorized by the terms of the mortgage to be operated as such, the contemplated operation necessarily embraces these usual methods of growing plants under cover, and such plants, so grown, should thus be regarded the same as plants or other crops grown in the open to be subsequently harvested for sale. The circumstance that such plants are not to bo attached to the soil in the same manner as ordinary crops is necessarily contemplated in the greenhouse operation statement of the parties; they are ordinary greenhouse crops raised in soil for subsequent harvest; products which only can be raised in soil. Until severance a mortgage on the real estate contemplating the propagation of such crops by the mortgagor should, I think, be treated the same, as to its lien, as a mortgage on other growing crops to be raised by the mortgagor. The rule as to such crops, as stated in 1 Jones Mori., § 434, is as follows: “Trees and shrubs planted in a nursery garden, for the temporary purpose of cultivatioti and growth until they are fit for market, and then to be taken up and sold, pass by a mortgage of the land, so that neither the mortgagor nor his assignee or creditors can remove them as personal property.” This rule appears to be supported by the weight of authority and is in harmony with the general rule in this state as to growing crops. See Ahern v. Littl 90 N. J. Eq. 72; 41 C. J. 484, § 403.