text:
    KASSEL POULTRY COMPANY, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLANT, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLEE.
    Argued October 3, 1928
    Decided March 20, 1929.
    Before Justices Trenchard and Lloyd.
    For the appellant, Lichtenstein, Schwartz & Friedenberg {John II. Kelley and William, Boorstein, of counsel).
    For the appellee, Wall, Haight, Carey & Hartpence {William, II. Shaw, of counsel).
   Per Curiam.

The trial judge, who heard the case without a jury, settled the state of the case as follows:

“The plaintiff shipped from North Carolina two ears of lire poultry, consigned to itself at Jersey City. The bill of lading was offered in evidence and marked Exhibit P-1. The cars were loaded at various points in North Carolina, the last stop at which poultry was placed in the cars being Salisbury, North Carolina. The shipment was in charge of one Elmer E. Hiatt, an employe of the plaintiff, who accompanied the cars, and slept in the one of them which contained the turkeys, and fed, and watered and took care of the poultry. He alone had access to the cars, having put his own Yale padlocks upon the doors, and himself retaining the keys. When the cars left Salisbury, over the Southern railway, the car from which it was alleged turkeys were subsequently stolen, contained about six thousand five hundred pounds of live turkeys. At the Potomac yards in Virginia, the cars were transferred to the defendant carrier, by which they were transported to the Jersey City railroad yard at the foot of Henderson street and placed in a portion of the yard known as the Ball Grounds. The cars reached the ball ground and were placed late in the night of November 21st, or in the early morning of November 22d, 1926. The tracks in the ball ground upon which the two cars were placed contained in all about twenty poultry cars on two tracks. The defendant had four railway police officers who spent the entire night from eleven p., m. of November 21st, to seven a. m. of November 22d, in and about the twenty cars, watching these cars alone. They were known as the poultry detail. The portion of the yard used for the poultry cars were sufficiently lighted during the night so that the checkers could read delivery bills and the marks on crates. Hiatt testified that in the early morning of November 22d, he left the car in which he had been bunking, containing the live turkeys, with other poultry, locked the car after him, and went into the adjoining car where he also had poultry, to feed and care for the birds and prepare them for the market. Between five and six o’clock in the morning, on coming out of the car where he had been working, Hiatt said that he found the other car containing the live turkeys open, and two or three men coming out of the car with birds in bags on their backs. He stated that he hollered to the watchmen, but was told by the men who had come out of the car to shut up, or he would have his head knocked oft'. On examining the car from which the men had come, he found that sixty-five or seventy turkeys, weighing one thousand pounds, had been taken. He had heard no noise of the men, nor any commotion from the poultry while he was in that car, the door of which had been closed while he was caring for the poultry. The men on leaving the car containing the turkeys had left the door half open, on the side opposite from certain flat cars which had been placed upon an adjoining track, and which were used as an unloading platform. Each man was said to have a bag of turkeys which had been taken from those near -the door, and right at the side where they could be reached handily. The lock had not been broken, but had been opened. The witness stated he still had the lock, but it did not work as well now as it did before. He stated that he reported the robbery about eight o’clock when some of the railroad police came near the car. He claimed that he had seen no one to report to before, and feared to leave the cars lest they might again be robbed. Herman Kaufman, a salesman and weighmaster for the plaintiff, who unloaded and weighed out this car, stated that the turkeys taken from the car weighed about five thousand two hundred and thirty-one pounds, so that the shortage was over twelve hundred pounds, and that the prevailing market price that day for turkeys was forty-five cents per pound. On behalf of the defendant, one Andrew Perkins, sergeant of the railroad police, stated that he had talked with Hiatt at ten A. m. on November 22d, while he was unloading the car. Hiatt, he said, had called him over and stated that the car had been robbed, and that the lock was broken. The witness examined the lock and found it was not broken, and then Hiatt stated that someone had opened it with a key. On being asked by the witness why he had not reported the robbery which had taken place about five a. m., he said that he was too busy. The lock was in working order. Hiatt showed the witness the keys. The delivery receipt signed on the part of the plaintiff and delivered to the defendant was offered in evidence and marked Exhibit D-l. The witness William E. Dienst, the railroad police officer who was in charge of the four officers guarding the poultry, testified that he had heard no unusual noise or disturbance, nor did he see men running away with bags of live turkeys. The only men who were about, he testified, were the men accompanying the cars, and who were working in them. The plaintiff’s attorneys asked judgment against the defendant on the ground that it was liable as an insurer, regardless of the fact that the plaintiff’s employe placed his own locks upon the car doors and retained the keys in Ms own possession, and that the entering of the car, as testified by Hiatt, was not forcible, but through the use of a key, and that the defendant was liable for this loss, as it was not occasioned by act of God or the public enemy, or expressly excepted in the bill of lading. The court found from the evidence adduced, that the defendant had used a high degree of care in safeguarding the cars containing the poultry, and that because of the continued presence of the plaintiff’s employe Hiatt in and about the car, his placing of his own locks on the doors of the cars and retaining the keys in his own possession, the liability of the carrier was not that of an insurer, but must be predicated upon the absence of such proper precautions to safeguard the shipment as the conditions called for on the part of a common carrier. As no negligence had been shown, judgment was rendered in favor of the defendant, to which ruling the plaintiff prayed and was granted an exception.”

We are unable to agree with the conclusions of the learned trial judge.

The bill of lading provided .that “no carrier or party in possession of all or any of the property herein described shall he liable for any loss thereof *' * * caused by the act or default of the shipper or owner.”

In the absence (as here) of special contract to the contrary, a common carrier is liable for all losses of goods received for carriage, not caused by an act of God, or by public enemies, or by the act or default of the shipper, and the carrier cannot be exonerated from loss by showing that there was no negligence. Mershon v. Hobensack, 22 N. J. L. 372; affirmed, 23 Id. 580; 10 C. J. 107, 114.

The trial judge, as we have seen, gave judgment for the defendant because he found that “it had used a high degree of care,” and that “no negligence had been shown.”

But as we have pointed out, the fact that the defendant was not negligent was insufficient to relieve it from liability. The defendant was liable unless the loss was caused by the act of God, or by public enemies, or by the act or default of the shipper. There is, of course, no suggestion that the loss was caused by the act of God or by public enemies, and so, of course, as to that the judge made no finding, and neither did he make any finding with respect to whether or not the loss was caused by the act or default of the shipper. We therefore think that the judgment is without support. Upon the question whether or not the same or substantially similar testimony would support a finding that the loss was caused by the act or default of the shipper or his agent, we express no opinion.

Since the finding of facts made by the trial judge does not support the judgment rendered, the judgment will be reversed, but without costs, and the record remitted for a new trial.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    JAMES S. WHIGHAM, PLAINTIFF-APPELLEE, v. SEACOAST FINANCE CORPORATION, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices Tkenchakd, Kalibch and Lloyd.

      Eor the appellant, Allen Father (Percy H. Penn, of counsel).
    For the appellee, John Grammer (John A. Bernhard, of counsel).
   Pee Cueiam.

The plaintiff-appellee borrowed $100 from the defendant-appellant on September 15th, 1926. The latter demanded as security a 1923 model Maxwell touring automobile owned by the appellee, and assured him that the car would be placed in a reliable garage. The automobile was placed in a garage called the Elizabeth Locomobile Company, the agent of the appellant.

Thereafter the garage company became insolvent and a receiver was appointed. Subsequent to the appointment of a receiver the car was presented to the appellee (upon payment of his loan), after it had been allowed to stand in the open for some period of time. It was stripped of its curtains, accessories, battery and tires. The loan made to the appellee had been entirely repaid.

A judgment in the sum of $250 was rendered in favor of the appellee in this action for damages for this injury, upon a finding of fact by the trial judge that the appellant had not exercised that degree of care which a reasonable man would have exercised under similar circumstances.

On this appeal two grounds are set forth in the appellant’s brief upon which it is sought to secure a reversal of this judgment. The first rests upon an alleged erroneous reception of evidence as to the value of the automobile. The second is the alleged failure of the appellee to sustain the burden of proof at the trial as to the negligence of the defendant.

It does not appear from the state of the case that any objection or exception was taken in connection with the testimony of Mr. Case as to the value of the automobile. Moreover, the state of the case discloses that Mr. Case qualified as a mechanic of fifteen years experience, and the defendant admits that the witness testified to having had considerable experience with automobiles of the same make as the one under -consideration. Certainly enough is made to appear to establish the propriety of the court’s action recognizing competency -of this witness.

As to the burden of proof it is sufficient to say that the state -of the case discloses evidence from which the trial court could and did find negligence upon the part of the defendant, and that the judge was legally justified in disregarding the evidence which the defendant contends tended to show that the injury to the car was occasioned by theft.

■ The judgment will be affirmed, with costs.


author: Per, Curiam.

text:
    SOLOMON WEINSTEIN, PLAINTIFF, v. STAR INSURANCE COMPANY OF AMERICA, DEFENDANT.
    Argued October 3, 1928
    Decided March 20, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Arthur T. Vanderbilt.

    Contra, Joseph Silverstein.

   Per, Curiam.

This is the defendant’s rule to show cause why plaintiff’s verdict in a fire insurance case should not be set aside. The defendant has filed thirteen reasons, but four points only are argued.

The first is that the court erred in charging the jury that Michael Weinstein, the agent who issued the insurance policy, was the agent of the insurer. The court did so charge and we think rightly. The real complaint that the defendant now makes is that the court did not say that he was the agent of the company and not of the insured who happened to be the agent’s father. But the court was not requested to add this and there was no doubt that the company had issued authority to Weinstein to act as its agent. Testimony from which it might be inferred that the son was also the agent of the father, the insured, seems no moment on this question.

The second point is that the court instructed the jury that if the intent was to issue the policy to cover the premises in question, and that the description is sufficient by eliminating 903 Sixteenth avenue, then you may say that the policy was valid. For reasons which we will give hereafter, we think this instruction was not improper.

The third point is that the court overruled motions for non-suit and the direction of the verdict, and the last point is that the verdict was against the law and the weight of the evidence.

We think that these points also are not well taken for reasons we will now state:

The policy itself was a double one containing two insuring clauses, one of $3,000 on a three-story frame building occupied as a dwelling situated at 903 Sixteenth avenue, Belmar, and another of $1,000 on a one and one-half story, shingle roof, frame building, occupied as a barn, situated in the rear on 903 Sixteenth avenue, Belmar, and it is contended by the defendant that the property was mis-described as to location.

It seems that the property, which is located generally at the corner of Sixteenth avenue and H street in Belmar is owned by Weinstein, the insured. On the corner is a store building eighteen feet front on H street and extending forty feet in depth. The evidence tended to show that next to that building was a three-story frame building "(the part of which next to H street being originally designed for a store, but not used as such) and it was this three-story frame building, used as a dwelling, which plaintiff claims was one of the properties1 insured. Still farther back of that dwelling house was the' barn said to be covered by the $1,000 insurance. As we understand the location of the barn, while it is in the rear of the dwelling claimed to have been insured, from one direction, it is also in the roar of 903 Sixteenth avenue, and that number happens to be owned by a man named Clayton. Witnesses, however, testified that the entrance to both the barn and the insured dwelling was from Sixteenth avenue; that there was a driveway from Sixteenth avenue into both, and that access from II street to either would only be up a high set of stairs through the store, &e. It was incumbent on the defendant to show that the policy contained false descriptions, and in support of that it attempted to show that on the insurance company’s maps the Clayton property was located at No. 903, and it also showed that 903 was actually on the door of that building. But there was evidence tending to show that there had been no official numbering of the properties on Sixteenth avenue, and the testimony tends to show that many properties in Belmar are unnumbered. Erom the corner to the Clayton house is approximately one hundred and fifty feet. Under these circumstances the decision of the Supreme Court in the case of Martin v. Orient Insurance Co., 5 N. J. Mis. R. 64, which held that (quoting 26 C. J. 164, § 203) “if property is otherwise sufficiently identified, or casting out what is false in the description, there is still enough left to clearly point out the place where the’ property is, a mis-description as to location will not avoid the policy,” is binding on us here, and that there was evidence from which the jury could find, as they did, that the property here claimed to have been insured was the property of the plaintiff which was damaged by the fire, and that there was no such false description as would avoid the policy.

The rule to show cause will be discharged.


text:
    ALBERT J. LUEBBERS, PLAINTIFF-APPELLANT, v. CHARLES J. SCHAAL, DEFENDANT-RESPONDENT.
    Decided March 21, 1929.
    Before Justices Tkenchabd, Kalisch and Lloyd.
    For the appellant, Frederic W. Schlosstein.

    For the respondent,
   Pee Cueiam.

The plaintiff brought his action against the defendant for the sum of $500 for breach of a contract between them, of which the following is a copy:

“Newark, April 12th, 1926.

Deceived from Albert Luebbers deposit of $50 [fifty dollars] on property situated on Mount Pleasant avenue, West Orange, New Jersey, purchase price $2,000 [two thousand dollars], estate of Mr. and Mrs. C. A. Schaal.

Deposit to be returned in case fire insurance company decides to rebuild house on said property.

Balance due upon delivery of deed of said property.

Deceived deposit of $50.

Chas. J. Schaal,

Administrator of Estate.”

The trial judge gave a judgment for $50 in favor of the plaintiff and against the defendant.

From this judgment defendant has appealed to this court.

A state of the case was agreed upon between the attorneys of the respective parties and is printed in the record before us. There is no indication anywhere in the state of the case of any particular error relied on by appellant for a reversal of the judgment. There is no specification of causes for reversal.

The judgment is affirmed, with costs.


author: Peb Cubiah.

text:
    ANNA KATZ, PLAINTIFF-APPELLEE, v. JOSEPH TABOROWSKY, DEFENDANT-APPELLANT.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices Tbenchaed, Kalisch and Lloyd.
    For the appellant, Cohen & Klein.

    For the appellee, Henry K. Golenboclc.

   Peb Cubiah.

This is defendant’s appeal from a judgment of the Perth Amboy District Court entered upon the verdict of a jury for $135.

The plaintiff brought her action against the defendant for personal injuries alleged to have been sustained by reason of defendant’s negligence in the operation of his automobile whereby it hit the automobile in which plaintiff was riding. The accident occurred at the intersection of Park avenue and Barach street, in the city of Perth Amboy.

No contention is made in the defendant’s brief that he was not negligent, nor is there any contention that the plaintiff was guilty of contributory negligence. The sole contention is that “nowhere in the entire evidence in the case is there the slightest testimony of any physical injuries to the plaintiff of any sort, and there is ample evidence- that the plaintiff sustained merely a condition described as nervousness or nervous shock,” and hence it is argued that the plaintiff cannot legally recover.

We think the defendant’s contention is ill-founded in point of fact. The facts are not in dispute. They are that the “shock of the two cars coming together threw her [plaintiff] forward over the seat * * * towards the glass.” The plaintiff testified: “I felt like I fell and I got excited and I don’t know what happened. I don’t even know who took me home.” She was put to bed in an extremely nervous condition which the jury had a right to infer, and did infer, resulted from the injury received in the accident. Of course, under this testimony, she was not precluded from recovery. In Consolidated Traction Co. v. Lambertson, 60 N. J. L. 457, the Court of Errors and Appeals, speaking through Mr. Justice Dixon (at p. 458) said: “While there are decisions holding that mere fright cannot form the legal basis of an action for damages (Mitchell v. Rochester Railway Co. (N. Y.), 45 N. E. Rep. 354) it is a well-established rule that when an actionable wrong, consisting of or accompanied by personal injury, is committed, the jury, in fixing the damages, are entitled to consider the mental agitation and disorder of the plaintiff naturally and proximately resulting from the wrongful conduct of the defendant.”

The judgment will be affirmed, with costs.


author: Per Curiam.

text:
    MICHAEL GRAMS, PLAINTIFF, v. STERN BROTHERS, INCORPORATED, A CORPORATION, DEFENDANT.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, John W. Lyness and Edward A. MarTcley.

      Contra, Walter L. Glenney (Edwin F. Smith and Raymond Dawson, of counsel).
   Per Curiam.

This case was tried at the Middlesex Circuit, the jury returning a verdict against the defendant in favor of the plaintiff for $500.

The plaintiff obtained this rule to show cause why that verdict should not be set aside as inadequate, and the only question argued here is whether or not the verdict is inadequate.

The action was for personal injuries to the plaintiff alleged to have been caused by the negligence of a servant of the defendant in the operation of an automobile which struck the plaintiff. The accident occurred September 1st, 1927, while the plaintiff was attempting to cross Bound Brook road, in the borough of Middlesex in Middlesex county.

We have examined with care the testimony in relation to damages. It would serve no useful purpose to set it forth in detail. Our conclusion is that we cannot say that the verdict is so small as to justify us in saying that it is inadequate.

The rule to show cause will be discharged.


text:
    LOUIS F. BOTJER, PLAINTIFF, v. SHERMAN DENNIS ET AL., DEFENDANTS.
    Submitted October 13, 1928
    Decided March 20, 1929.
    Before Justices Teenchabd, Kalisch and Lloyd.
    Eor the rule, Wall, Haight, Carey & Hartpence and Slolces, McDermott & Hartshorne.

      Contra, William B. Stites.

   Pee Cueiam.

This is defendants’ rule to show cause why the venue should not be changed from the county of Hudson, where it laid in the complaint, to the county of Monmouth.

We have examined the depositions taken pursuant to the rule and laid before us. The result of our examination is that we are persuaded that the defendants are entitled to have the case tried in Monmouth county, and for that purpose to have the venue changed to that county.

Accordingly, it will be ordered that the venue be changed to the county of Monmouth.


text:
    MARY W. COTTRELL, PLAINTIFF, v. IRA BARTON CHAMPION, DEFENDANT.
    Argued. October 3, 1928
    Decided March 20, 1929.

      Before Justices Trestci-iard, EAliscii and Lloyd.
    For the rule, James Mercer Davis.

      Contra, George R. Greis.

   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict should not be set aside. The case was tried at the Cape May Circuit and the verdict was for $7,000.

The plaintiff, Mary W. Cottrell, was a passenger in a Ford sedan owned by her son and was being driven by her daughter Mary in a westerly direction on Ninth street in Ocean City. As the sedan was crossing Central avenue it was struck and overturned by a Pierce Arrow automobile owned and operated by the defendant, which was proceeding in a southerly direction on Central avenue, and at the time of the collision was attempting to make a left turn into Ninth street.

We think that there was evidence from which the jury could properly infer that the negligence of the defendant was the proximate cause of the accident, and might also lawfully conclude that the plaintiff’s driver was not negligent. We also think that the jury’s verdict, involving such findings, is not against the weight of the evidence.

Mary Cottrell, the driver of the Ford car, testified that upon reaching the intersection of Ninth street and Central avenue, she practically came to a stop, blew her horn and started across Central avenue, and when she started across the car of the defendant was on Central avenue “aside of the school house” and was approaching Ninth street at a speed of from forty to forty-five miles an hour, but she thought she could cross the intersection safely because the other car was “quite a distance up the block.” The school house is on Central avenue and is one hundred and sixty-two feet northerly from the curb line of Ninth street. She further testified that defendant made no effort to stop. While there was some testimony in contradiction of the foregoing testimony, it was open to the jury to find it to be true. Whether in the circumstances such conduct of the defendant was negligence, and whether it was contributory negligence upon the part of the driver of the Eord car to proceed in such circumstances, the Pierce Arrow car being upwards of one hundred and sixty-tw.o feet away, we think was at least a fair jury question, and we are not disposed to disturb the verdict.

Also, we think, upon a careful examination of the evidence relating to damages, that the verdict for $7,000 in favor of the plaintiff cannot be said to be excessive.

The rule to show cause will be discharged.


text:
    JOSEPH DE WITT, PLAINTIFF, v. PHILIP BROWN, DEFENDANT.
    Decided March 21, 1929.
    Before Justices Teenchabd, Kalisch and Lloyd.
    Eor the rule, Frank G. Turner.

    Contra, John J. Quinn and Theodore D. Parsons.

   Pee Cueiam.

There was a verdict, at the Monmouth Circuit, in favor of the plaintiff and against the defendant for the sum of $21,000. The two grounds relied upon in behalf of the defendant for a new trial are, first, that the verdict is contrary to the weight of the evidence; second, that the verdict is excessive. We think neither reason presented has any merit.

On July 2d, 1927, the plaintiff was on his way home from work, and parked his automobile on Conanche Drive, in Portau-Peck, on the left hand side of the road, for the purpose of repairing a flat tire. The plaintiff was in the employ of the Central Railroad Company, and it was about midnight when he was returning home from his work. Within five feet of where the car was parked there was an arc light, and the testimony in the case relating to that subject, permits no doubt that the car could readily be seen for a distance of two hundred feet by anyone driving along the road. The highway is fifty feet wide at that point. The defendant, at the time of the accident, was accompanied by a female companion, and returning to his hotel at Sea Bright.

The headlights of the parked car were burning, and the defendant admitted he saw the headlights of the plaintiff’s •car ahead of him, about two hundred feet away.

There was testimony to the effect that the defendant had been drinking, and there was a bottle of liquor found in his •car. A fair reading of the testimony makes it clear that if the defendant had been using the ordinary care of a prudent person, he could not have failed to see the car in ample time to have avoided the collision.

Nor do we think the verdict is excessive. The plaintiff’s •employment was that of a brakeman. He was about twenty-four years of age at the time of the accident. He earned between $230 and $260 a month. After the accident he was taken to the hospital. An examination of his injuries disclosed that he had a four-inch laceration on his scalp which was sutured; fractures of the first and fourth lumbar vertebrae and a piece of bone chipped off the skull. He was put in a plaster cast in which he remained for five weeks. The testimoney of the physicians make it clear, that his injuries are of a permanent character. He will never be the same man, as to physical condition, and his capacity for work that he was before he received his injuries.

His injuries are of such a character, according to the testimony that he will never be able to do any hard work, nor do any work that requires lifting, and he will be unable to perform the duties of a brakeman on a freight train.

We cannot say, from a fair reading of the history of the plaintiff’s injuries and the consequences which resulted therefrom, and will in the future follow, and the pecuniary loss he has sustained from his inability to do any work at all for a long period of time, and the expense he has incurred to pay doctors’ bills and for general treatment, that the verdict is excessive.

Eule is discharged, with costs.


text:
    JOSEPH KRIM, PLAINTIFF-APPELLANT, v. JOSEPH SACKS, DEFENDANT-APPELLEE.
    Decided March 21, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Sidney A. Bierman.

    For the appellee, Anthony Gasale.

   Per Curiam.

This is an appeal from a judgment of the First District Court of the city of Jersey City, in favor of the defendantappellee, and against the plaintiff-appellant. The case was tried before Judge Carrick, sitting without a jury.

The plaintiff below brought his action against the defendant below to recover the sum of $312.50, being a commission of five per cent, of the selling price of a confectionery store, which was agreed to be sold by the said plaintiff, for the said defendant.

From the state of the case it appears that the defendant, in writing, agreed to sell to Sam Feldman and Morris Feldman, a cigar, confectionery and stationery business, located at Kearny avenue, Jersey City, New Jersey, together with all stock and fixtures now in said store, &e. In the agreement the plaintiff undertook to secure a lease to the vendees for the store, and rooms for a period of not less than five years, for a monthly rental of $100 for the first year, and $5 increase per year, for the remaining four years, the whole rental not to exceed $120. The agreement contained a provision that if the seller failed to secure the lease in question, then he is to return to the vendees a deposit to be made by them, and the agreement was to be null and void.

The vendees deposited a check of $300, which cheek was to be held by the seller for a few days until it could be made good by the vendees. It further appeared that the seller was unable to procure the lease from the landlord for the vendees, and thereupon the vendees refused to honor the check given as deposit, and refused to take the store, after they learned from the seller that he could not get the lease, and thereupon the deal was declared off.

The plaintiff drew the agreement of sale which contained the clause that in event the seller could not secure the lease, he would return the deposit money, and that the agreement was to be null and void. The agreement made by the defendant with the seller was to pay the latter five per cent, of the selling price for procuring a purchaser, satisfactory to the seller’s terms, upon an actual sale taking place.

It is apparent from a reading of the state of the case agreed upon, that the plaintiff, though he procured a prospective purchaser, the prime factor, whether the prospective purchaser would become an actual purchaser, depended upon the ability of the prospective seller to obtain a lease, as provided for in the agreement, and if such a lease could not be procured, the agreement to sell was to be considered a nullity.

As it appears from the state of the case, that the plaintiff was conversant with the terms upon which the agreement was made between the prospective vendor and the prospective vendees, he must be held to have tacitly acquiesced in the arrangement that there was to be no sale unless the lease could be procured, and of course, if no sale was made, he was not entitled to any commission for having secured a purchaser.

The first specification of objection is, that the verdict of the trial court, in favor of the defendant below, is contrary to the weight of evidence. As this involves the review of the decision by the trial court, on factual questions, an appeal therefrom does not lie.

The second specification of objection relied upon is stated as follows: “The trial court refused to sustain the plaintiff-appellant’s objection to testimony, relating up to the signing of the contract which is immaterial and irrelevant.” This is rather an involved statement. The sense of it is not quite clear. The state of the case agreed upon does not disclose any objections to the testimonjr and the rulings of the court thereon, and therefore there is no basis laid for any judicial review.

The third specification of objection has been already dealt with.

The fourth specification of objection is, “that the uncontradicted testimony of all the parties to the action, and the witnesses, was that the deal fell through when the landlord refused to give the lease.” This being conceded on behalf of the appellant, is a confession that the procuring of the lease was one of the terms upon which the property was to be sold, and this clause having been written into the agreement by the plaintiff himself, the only legitimate conclusion to which this circumstance leads is, that there was no procurement of a purchaser by the appellant, and therefore there was no legal basis for the recovery of any commission by him.

Judgment is affirmed, with costs.


author: Backes, Y. C.

text:
    John R. Losee, complainant, v. Arthur J. Cale et al., defendants.
    [Decided March 28th, 1929.]

      Messrs. Lum, Tamblyn & Colyer, for the complainant.

      Messrs. Stein, McGlynn & Hannoch, for the defendants.
   Backes, Y. C.

The bill is to foreclose a mortgage given by Arthur J. Gale to James E. Nugent, now deceased, for $7,600. The complainant holds it for Nugent’s estate. The defense is want of consideration. Nugent conveyed the mortgaged premises to Cale January 4th, 1926, who on that day executed a mortgage to one Eisler for $35,000 and to Nugent the mortgage in suit; the latter recites that it was for purchase money. The $35,000 of the Eisler mortgage was used to pay off an outstanding mortgage and other charges, and the balance, $18,329, was paid to Nugent. Cale contends that at that time he owed Nugent no more than $11,000 plus; and this was more than satisfied by the $18,329, and that Nugent’s estate now owes him the difference, approximately $7,000, and, consequently, the mortgage in suit was given without consideration. He explains that he executed the mortgage under protest, claiming at the time to Nugent that he owed him nothing but that Nugent owed him $13,000, and that he signed upon Nugent’s promise to state the account between them on his return from a vacation. Nugent returned sick, fatally stricken, and died without rendering an account. Cale is supported in his explanation by Turton, the attorney for Eisler, who paid Nugent the $18,339, he saying that Nugent refused the deed to Cale unless he signed the mortgage; that he would not admit Cale’s claim, adding that he hadn’t the time to go over the account; that he did not know how it stood and that he would state it on his return. Shortly after Nugent telegraphed Cale from Hot Springs for a renewal note, indicating that he was to account, saying, “will adjust on my return.”

Nugent and Cale had had dealings since 1919. In that year Nugent agreed to sell-to Cale the mortgaged premises,

a factory for ..........................•. . . . $38,000.00

Subject to mortgage................. $15,500

There was to be a down payment of .... 500

Monthly installments of $500, ten installments a year, until there was paid, 13,000

•A mortgage was to be taken for ....... 10,000

$38,000.00

The conveyance was to be made and the mortgage given when the installments were paid. In 1933 Nugent conveyed to Cale and took his mortgage for $10,000. On the same day Cale gave Nugent another mortgage for $9,310. He says it was a substitute; that he had paid $780 in excess of the installments and that there has been a miscalculation. Nu-gent foreclosed the latter mortgage and purchased at the sheriff’s sale. He then conveyed to Cale and Cale gave the Eisler mortgage and the one now in dispute. Cale says Nugent foreclosed the mortgage to clear the title of later encumbrances, having agreed to purchase it at the sale and convey it to him, subject, of course, to Nugent’s debts. A typewritten statement prepared by Nugent after he returned from the vacation was found among his effects and if correct justifies the mortgage. Cole’s accountant, after exhaustive examination of all available data, could not adversely criticize it. It was offered as evidence by the defense. In this account Cale is charged with the $10,000 mortgage and $2,350 interest from its date; notes of $8,127.10 and cash advanced and paid to the use of Cale, a total of $26,000 plus, and he is credited with the $18,329 Nugent received from the Eisler mortgage and the $7,600 mortgage in suit, and some rent, a total of $26,000 plus, showing a balance due to Cale of $360.90. Cale disputes the correctness of the statement. He challenges the $10,000 mortgage and interest item, claiming that it represented the “notes of $8,127.10;” that they are duplicate charges. He says that when he executed the bond and mortgage for $9,210 he also gave Nugent a note for that sum, representing the same debt, and that later he borrowed $2,500, giving him his note; that Nugent had the notes discounted at his bank and as they matured were reduced and renewed and finally reduced, the $9,120 note to $5,000, or $6,000; the $2,500 note to $1,800, and that he, Cale, paid the several amounts by which they were reduced and the discounts. Nugent’s statement indicates that he, Nugent, paid some of them, and that he carried Cale’s notes, $8,127.10, as there mentioned is conceded, and we have but the word of Cale as to their origin. Nugent was a man of wealth, not in need of an accommodation note, and it is permissible suggestion that perhaps the note had its inception in the payment period of the installments of the 1919 sales agreement. Cale was in modest circumstances and certainly slow of pay, if the pace at which he reduced his notes is a criterion. Cale has neither record nor voucher to support his assertions, nor Nugent to deny him. His records, he says, were destroyed by fire. He put Nugent’s statement in evidence and at the trial repeatedly affirmed his confidence in Nugent’s integrity, as well he might. Then, why not in his “dying declaration.”

Cale’s later conduct is significant. When Nugent’s attorney called the mortgage in suit Cale responded that he was sorry he could not pay it and repeatedly asked for delay. Later, when another lawyer tried to collect he said he did not deny the obligation and offered to surrender his equity if he could get a lease. Fugent was then living. At the trial Cale admitted offering to .convey, adding, upon getting a five-year lease, rent free.

Assuming the oral testimony to be admissible to vary the obligation of the bond or to show the true consideration of the mortgage, the defendant has not furnished the quality of proof required to destroy his legally formal solemn undertaking. The bond and mortgage were not executed conditionally, to be effective upon a later showing that the debt existed, ’ which might cast the burden of proof on the complainant, but arose • upon a debt which the creditor main-, tained would be demonstrable by a statement of the mutual dealings. For does the fact that Fugent was lawyer and Cale sometimes his client shift the burden. The relation was that of creditor and debtor; the other, incidental and unrelated to the transaction.

The complainant is entitled to a decree.


text:
    AARON P. SUSSMAN, PLAINTIFF, v. YELLOW TAXICAB COMPANY, DEFENDANT.
    Argued October 3, 1928
    Decided March 28, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the plaintiff, Alfred Brenner.

    For the defendant, George F. Seymour, Jr.

   Per Curiam.

This is plaintiff’s rule to show cause on the ground of inadequacy of damages.

The plaintiff, a dentist in active practice, earning according to his testimony some $25,000 a year over expenses, was injured by having his hand jammed in-the door of a taxicab of the defendant company, necessitating the amputation of about half of the first finger with incidental injury to two other fingers, causing stiffness. The testimony showed with substantial clearness that the plaintiff’s right hand was permanently crippled.

The jury found a verdict in favor of the plaintiff for $3,000, and counsel for the defendant conceded on the argument that this verdict is inadequate, but claimed that it ought to stand because as they said the jury had serious doubt whether the plaintiff ought to recover anything under the circumstances, and that the verdict was the result of a compromise. It is well settled that a verdict under such circumstances cannot stand. The question then remains whether the new trial should be limited to damages only. The trial judge undertook to make, this limitation of the rule, but we do not feel controlled by such limitation in this court. Faggioni v. Weiss, 128 Atl. Rep. 540; 3 N. J. Mis. R. 371; De Peole v. Passaic City Steam Laundry, 137 Atl. Rep. 890; 5 N. J. Mis. R. 687; Infirri v. Staseak, 4 Id. 915; Wilentz v. Lonky, 6 Id. 711. We incline to the view that there should be a new trial at large. Such will be the order.


text:
    EMIL F. P. DOST AND EMMA DOST, PLAINTIFFS, v. ATLANTIC CITY RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Argued October 2, 1928
    Decided March 28, 1929.
    Before Gummeke, Chief Justice, and Justice Paekbk.
    Por the plaintiffs, Albert S. Woodruff.

    Por the defendant, French, Richards & Bradley.

   Pee Cueiam.

This is a railroad crossing' case in which there was a verdict and judgment for the plaintiffs.

The plaintiffs are husband and wife, and were in an automobile early in the morning proceeding to the place where the husband worked. The route lay across the railroad tracks of the defendant, and both husband and wife were entirely familiar with the crossing. They were equally familiar with the train schedule and knew that a train was due at that time. The automobile was struck by that particular train which was slowing up for the local station.

We need not consider the contradictory testimony bearing on the question whether either of the statutory signals was given, as we are clear that both plaintiffs were guilty of contributory negligence. The locality is perfectly level, the railroad track was on the grade of the surrounding land and the train, which was not moving fast, was in plain sight for fully a quarter of a mile. There was only one railroad track. It is claimed by the plaintiffs that they were prevented from seeing the train because of the intervention of a low bank of earth bordering the railroad track which was about three feet high and on which grew grass and weeds for perhaps one and one-half feet in addition. This bank directly adjoined the railroad track so that it is conceivable that one sitting in an automobile which is on the point of entering on the track may for a moment lose sight of an approaching train. But on the other hand, as demonstrated by the photographs, the train is plainly visible at any point up to say within ten feet or so of the track itself. In our estimation the failure of the plaintiffs or either of them to see this train under the circumstances, it being broad daylight and the weather being clear, speaks conclusively of contributory negligence, and this view we think is borne out by such eases as Fisher v. West Jersey Railroad, 2 N. J. Mis. R. 1161; Stryker v. Pennsylvania Railroad, 6 N. J. Adv. R. 567, and Dourte & Irelan v. Pennsylvania Railroad Co., 6 N. J. Mis. R. 659.

The rule to show cause will be made absolute.


text:
    EMANUEL KLINE, PLAINTIFF-RESPONDENT, v. CAMDEN FORGE COMPANY, DEFENDANT-APPELLANT.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chiee Justice, and Justice Parker.
    Eor the plaintiff, Charles W. Letzgus.

    Por the defendant, Howard L. Miller.

   Per Curiam.

The plaintiff recovered a judgment of $2,500 for personal injury and injury to his automobile, due to collision with a truck of the defendant company, driven by an employe named Elliott. It is urged for the rule that the verdict was against the weight of evidence and that the damages are excessive.

The plaintiff was driving north on Woodbury Pike toward Camden across the junction of the pike with the east and west road, where there was a traffic light. Just north of the crossing and between it and a bridge and on the west side of the pike was a gasoline station where the plaintiff turned in to get gas and oil. When he came out again with the object of crossing to the easterly side of the Woodbury Pike, and of turning again toward Camden, his car was run into by the defendant’s truck which was going south. There is the usual contradiction in the evidence with respect to the precise conditions at that time. The plaintiff claimed that the nearest southbound cars were one hundred and fifty feet away and that he had ample time to make the crossing in front of them, and that after he had crossed he saw defendant’s car coming from the bridge at high speed in a sort of zigzag course, and although he drew over to the extreme easterly side of the road he was unable to avoid it. In this he was corroborated to some extent by the gasoline man. On the other hand Elliott testified that he was proceeding at moderate speed and that the plaintiff suddenly shot out in front of him around another car which was on his right. Both Elliott and another witness named Johanson were somewhat shaken on cross-examination, but we need not go into the details. We consider that the verdict of the jury was justified by the evidence.

Nor do we consider that the verdict was so excessive as to require our interference. The plaintiff was badly shaken up and had a number of doctor bills to pay; his car was practically destroyed. There is a claim that a previous physical condition from which he had suffered and which was practically cured had been revived, and much of the dispute in the testimony relates to this point. On the whole, we do not consider that the verdict was so excessive as to require us to set it aside or indicate the acceptance of a reduced amount.


text:
    THOMAS HASSALL, PLAINTIFF-RESPONDENT, v. JOSEPH G. DENELSBECK, DEFENDANT-PROSECUTOR.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chiee Justice, and Justice Parker.
    Eor the plaintiff, William A. Moore.

    For the defendant, Harvey T. Satterthwaite.

   Per Curiam.

This is an action of deceit, the plaintiff claiming that the defendant fraudently induced him to buy and pay for certain stock in a small corporation by false representations touching the solvency and assets' of the company, and that thereafter the company became insolvent and was sold out by the receiver with no money remaining for division among the stockholders. The only reason argued is that the verdict was against the weight of evidence. We have examined the evidence with care and conclude that this ground is without substance. The question for the jury to determine was merely one of veracity as between the plaintiff and the defendant, and the jury resolved this question by determining it in favor of the plaintiff, and, as we think, with good reason.

The rule to show cause will therefore be discharged.


author: Pek Cukiam.

text:
    CHARLES KONTUR, PLAINTIFF, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummebe, Chief Justice, and Justice Pakicee.
    For the plaintiff, James B. Furber.

    For the defendant, Henry II. Fryling.

   Pek Cukiam.

The only reason argued in support of this rule is that the damages were excessive. The verdict was for $19,000.

The plaintiff was in the business as an automobile repairer and was called out with his wrecking car for another car that was stalled on the public road at night. The plaintiff ran his wrecking car ahead of the other, backed it up to the other car and was between the two ears engaged in coupling them in some way for the purpose of towing the injured car to the repair shop when suddenly the defendant’s truck operated by defendant’s servant ran into the rear of the disabled car and pushed it into the wrecking car, crushing the plaintiff between the two. Plaintiff was one hundred and eleven days in the hospital and went back again for one hundred and ninety-six days more; he was injured on the shoulder and both legs, especially the right leg, from which a large piece of flesh was gouged out, leaving an infection which ultimately required extensive skin grafting. He claimed that leg was almost useless and that it could not be used to any extent without breaking open the scar, and at the time of the trial there was a running sore on the leg. He seems to be out of business permanently, and his earnings have dropped from 'some $75 a week to $25 a week. The medical and hospital expenses aggregate nearly $2,000. We do not consider the verdict under the circumstances to have been excessive. The rule to show cause will be discharged.


text:
    LILLIAN CLARKSON AND RUTGERS CLARKSON, HER HUSBAND, PLAINTIFFS, v. LOUIS LEY, DEFENDANT.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the plaintiff, Ward & McGinnis.

    For the defendant, Collins & Corbin.

   Per Curiam.

This was a suit by husband and wife based on personal injuries to the wife. There was a verdict for the husband of $2,500, to which no objection was made. There was a verdict fn favor of the wife for $12,500 which is attacked as excescessive. The circumstances of the accident were that Mrs. Clarkson, a woman of fifty-eight or sixty years old, was crossing a street and was struck by the defendant’s automobile. She said she was tossed in the air and landed on her back. No limbs were broken but both pelvic bones were fractured and a small process was also broken. Her body was a mass of bruises, her head cut and naturally she sustained very extensive shock. She was in bed fourteen weeks, then on crutches, and at the trial testified that she had never recovered her former ability to do work.

If the testimony in relation to the accident is to be believed, and it is not seriously disputed, it is a marvel that the woman was not killed. The doctors seem to agree that she made what they call a good recovery, but that is not necessarily the same as if she had never been injured. It ■cannot be denied that she was very seriously injured, and in our estimation the verdict, while fairly large, should not be set aside as excessive.

The rule to show cause will therefore be discharged.


author: Pee Ctjeiam.

text:
    HENRY GOLDBERGER, PLAINTIFF, v. KALMAN POSNACK AND HARRY TURKISH, TRADING AS POSNACK & TURKISH, DEFENDANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummeke, Chief Justice, and Justice Paekeb.
    For the plaintiff, William Reger.

    For the defendants, Edward Griffin.

   Pee Ctjeiam.

The present case arises out of a rear end collision in the dark of a winter morning in the Greenville section of Jersey City. The Hudson County Boulevard at this point is in two sections, separated by an isle of safety. The plaintiff’s milk wagon, from which the morning deliveries were being made, was pulled in toward the easterly curb of the boulevard, facing in a general northerly direction. The disputed question of fact was whether the milk wagon was substantially parallel with the curb or was diagonally out across the roadway with the horse at the curb and the tail of the wagon in the road. The defendants’ truck, seven and one-half feet wide, came up the boulevard in a northerly direction, the truck driver did not see the wagon until too late to stop, and the result was a collision with the rear of the wagon which inflicted personal injury on the defendant who was on the street taking off milk bottles or something of the kind. The judge charged the jury with care and no complaint is made of the charge. The jury found for the defendant and the plaintiff alleges-as reasons that the verdict was contrary to the weight of ■evidence, contrary to law, and contrary to the charge of the ■court. It is not contrary to the charge nor is it contrary to-the law; the real question is whether it is contrary to the weight of evidence. Heading the testimony from the book, we are not in position to say that the jury was not fully entitled to find that the wagon was directed across the roadway, and that there was no light on it as claimed by the defendants’ driver. These highway cases are particularly for the disposition of a jury, and the testimony is open to-the conclusion both that the defendants’ driver was guilty of no lack of care and also that the plaintiff must be guilty of contributory negligence.

The rule to show cause will be discharged.


text:
    AVOCA SILK COMPANY, A BODY CORPORATE, PLAINTIFF-RESPONDENT, v. SAM NEWMAN, DEFENDANT-APPELLANT.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummeke, Chief Justice, and Justice Parker.
    For the plaintiff-respondent, Horton & Tilt.

    For the appellant, Abram I. Bluestein.

   Per Curiam.

The Circuit Court directed the entry of a summary judgment for the plaintiff. The suit was on a bank check made by the defendant to the order of the plaintiff, payment of which was stopped. It appears by the affidavit that the check was given in payment of services performed or to be performed in throwing silk for the defendant. The defendant filed a counter-claim in which he set up that he had shipped silk to be thrown and returned, that it was to be thrown in a good workmanlike and substantial manner so that it could be used for the purpose of manufacturing into cloth, but that the silk returned was not of the same quality as that forwarded, nor was it the same silk, nor was it thrown in a good workmanlike and substantial manner. Damages of $5,000 were claimed. •

The trial judge filed a memorandum in which he held that there was a contract that payment was to be made by defendant before delivery, which contract was breached.

He further held that a counter-claim cannot be set up as a defense to such breach, and that by agreeing to pay before delivery any right as a counter-claim to the amount due was necessarily waived.

We are unable-to take this view of the matter. The statute of counter-claim is very broad, and as now in force is section 12 of the Practice act of 1912, which provides that “subject to rules the defendant may counter-claim or set off any cause of action.” Eules 65, 66 and 67 contain no special matter necessary to note here and generally are in aid of a liberal construction of the statute. The statute further provides that where the counter-claim cannot be conveniently tried it may be struck out; and this was done in the case of Kelley v. Iron and Steel Co., 87 N. J. L. 567; but the present case is not within that decision or within that portion of the statute; for the present counter-claim went directly to the cause of action.

The judgment will be reversed with directions that the counter-claim be reinstated and the case tried on the merits.


author: Pee Cuejam.

text:
    MARY RUSH AND MARTIN RUSH, HER HUSBAND, RESPONDENTS, v. COMMERCIAL REALTY COMPANY, APPELLANT.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gtjmmebe, Chief Justice, and Justice Pabkee.
    For the appellant, Stein, McGlynn & Hannoch.

    For the respondents, William Herda Smith.

   Pee Cuejam.

The case for the plaintiffs was that they were tenants of the defendant, which controlled the house wherein they lived and also the adjoining house, and provided a detached privy for the use o£ both houses; that Mrs. Rush, having occasion to use this privy, went into it and fell through the floor, or through some sort of trap door therein, descended about nine feet into the accumulation at the bottom and had to be extricated by use of a ladder. The defendant denied that there was any pit at all, and claimed the floor was only about nine inches above solid ground. This, like several other features of the case, presented a disputed question of fact for the jury. The two grounds of appeal are that the trial court erred in refusing a nonsuit, and erred in refusing to direct a verdict for the defendant.

Taking the facts as the jury were entitled to find them, most favorably for the plaintiffs, the situation was that of a building under the control of the landlord for the use of tenants generally, and maintained by the landlord; a consequent duty of care in maintenance; a defective condition in the floor which the jury might say was due to negligent maintenance by the defendant, and an accident resulting therefrom. In such a situation it would seem that the argument for a nonsuit or for a direction must be restricted to the questions of contributory negligence and assumption of risk. In dealing with these, it should be observed that Mrs. Rush had no choice, when impelled by the calls of nature, but to use the facilities placed at her disposal by the landlord, to wit, a privy with a trap door in the floor, poorly maintained. We hardly think this was the assumption of a risk; she was not required to leave the premises and go elsewhere. Whether it was contributory negligence to step on a floor which she testified was in bad order, was a question for the jury to solve according to its finding of the conditions and her knowledge of them, or what she should have known of them; it does not seem to be a court question.

We conclude that there was no error in denying motions to take the case from the jury, and the "judgment will accordingly be affirmed.


text:
    MAX LANDOW, PLAINTIFF-RESPONDENT, v. LOUIS VILENSKY AND BESSIE VILENSKY, DEFENDANTS-APPELLANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before G-um mere, Chief Justice, and Justice Parker.
    Eor the appellant, John Bauffenbart.

    For the respondent, Morris Bloom.

   Per Curiam.

The trial judge directed a verdict for the plaintiff in this cause and then granted the defendants a rule to show cause reserving exceptions, which rule was duly argued and was afterward discharged. The case comes before us on an appeal from the judgment below. We fail to find any ruling of the trial court to which proper exception was taken, which is brought to us for review. There were several exceptions during the course of the trial but none of these is assigned for error in the grounds of appeal. These latter are four in number. The first is, “no sale was made nor was any service performed which entitled plaintiff to a recovery upon the contract sued on.” The second is, “the right of plaintiff to a recovery was contingent upon the occurrence of a day of final settlement under the contract, and no day of final settlement occurred and no final settlement was had.” The third is, “the contract is contrary to public policy and unenforceable.”

No one of these three grounds challenges any ruling of' the trial court; they merely state propositions of law, of' fact, or of mixed law and fact. It is, of course, settled that, reversal cannot be had upon grounds such as these.

The fourth ground is, that “the learned trial judge erroneously directed a verdict for the plaintiff.” Page v35. This, is a proper ground of appeal, but unfortunately it is not supported by any exception taken at the time, and the rule is likewise well settled that unless there is an exception there is nothing to review.

The judgment will be affirmed.


author: Pee Cuexam.

text:
    ANNA VALIANT, PLAINTIFF-APPELLEE, v. PLAZA REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND HELLER CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND BERNARD MILLER, DEFENDANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiff, Joseph C. Cassini.

    For the defendants, Saul & Joseph JE. Cohn.

   Pee Cuexam.

This is an appeal of the Plaza Realty Company from a judgment for damages entered on a verdict of a jury. The ease as originally made on the pleadings charged the appellant with negligence in the maintenance of a coal-hole in the sidewalk; but as the proofs came in, the court held that there was no evidence to charge the landowner on that point. There was a motion for nonsuit on the ground of variance which the judge refused, and allowed an amendment to charge the owner with defective original construction. There was evidence tending to support this charge because the testimony indicated that the coal-hole cover was new but would tilt and let the passerby down into the hole unless stepped on in the exact center.

Of the eleven grounds of appeal there is only one that properly raises a ruling for review; the others are all indefinite and therefore unavailable. The last ground, however, is that the trial court refused to nonsuit the plaintiff at the close of the plaintiff’s case. We conclude that the non-suit was properly denied. As the evidence stood it indicated an improper construction of the coal-hole and that the appellant was the abutting owner. This was enough to raise a prima facie case against the appellant, and inasmuch as the court in its discretion was entitled to allow the amendment so long as there was no injurious surprise, the evidence is within the pleadings as amended and consequently the judgment must be affirmed.


author: Donges, J.

text:
    Camden County Circuit Court.
    LOUIS B. LeDUC, PLAINTIFF, v. HAMPTON E. WILLIAMS, DEFENDANT.
    Submitted December 5, 1928
    Decided December 21, 1928.
    For the plaintiff, Balph W. Wescoil.

    For the defendant, Joseph B. Tyler.

   Donges, J.

This is a suit to recover for services rendered as attorney and counselor in several pieces of litigation.

Motion is made to strike the fourth affirmative defense, which challenges the right of plaintiff to maintain such action upon an implied contract to pay for services as an advocate and attorney. The language of the defense is as follows:

“Fourth defense. Plaintiff’s charges are for services as an advocate as well as an attorney and are inseparable and there can be no recovery therefor.”

1. By section 9 of the Practice act of 1903, it was provided that:

“No solicitor or attorney shall commence or maintain any action for the recovery of any fees, charges or disbursements, in equity or at law, against his client or his legal representative, until he shall have delivered to such client or his representative or left for him at his usual place of abode a copy of the tax bill of such fees, charges and disbursements.” Comp. 8tat., p. 4054.

By amendment {Pamph. L. 1911, p. 412) it is provided:

“Every solicitor, attorney and counselor may commence and maintain an action for the recovery of any reasonable fees, charges or disbursements, in equity or at law, against his client or his legal representative, provided he shall have first delivered to such client or his legal representative or left for him at his usual place of abode, a copy of his bill.of such, fees, charges and disbursements.” Cum. Supp. Comp. 8tat., p. 2193.

An attorney might, before the act of 1911, maintain an action for his services and disbursements. Van Atta v. McKinney’s Executors, 16 N. J. L. 235; Schomp v. Schenck, 40 Id. 195; Voorhees v. Barr, 59 Id. 124.

At common law an advocate was incapable of contracting for services, but our courts, in a number of cases, modified the rule by permitting a recovery in cases where the amount of the fee is agreed upon. Seeley v. Crane, 15 N. J. L. 35; Schomp v. Schenck, supra; Hopper v. Ludlum, 41 N. J. L. 182; Zabriskie v. Woodruff, 48 Id. 610; Voorhees v. Barr, supra; Strong et al. v. Mundy, 52 N. J. Eq. 833; Bentley v. Fidelity, &c., 75 N. J. L. 828.

In this state of the law, the legislature passed the act of 1911 above quoted. This amendment clearly extended the right to recover for services as counsel or advocate, provided a copy of the bill for fees and charges was served, and it provided that the recovery should be for “any reasonable fees, charges or disbursements.” In view of the right to recover on express contract theretofore, the obvious effect of the act in question was to give an advocate (a counselor) the same right of action to recover for services that an attorney had. This is a right to sue upon an implied contract for the reasonable value of the services rendered, after giving his client a copy of his bill of such fees, charges and disbursements. Any other construction of this act seems to me to be strained and artificial.

2. Defendant urges that, if the act in question is to be construed as giving counselors a right to recover for services as advocates, it violates the provision of the constitution requiring the object of the act to be expressed in the title (article 4, section 7, paragraph 4). It is asserted that the title does not express the object of the act.

The title of the act is “An act to amend an act entitled 'An act to regulate the practice of courts of law.’ ”

The history of this act is discussed by Mr. Justice Swayze in In re Hahn, 85 N. J. Eq. 510.

Prom earliest times matters relating to the suability of attorneys and to the conduct of counselors, solicitors and attorneys have been included in this act. Numerous eases arising under the first twelve sections of this act have been in our courts. Clock v. Donnelly, 94 N. J. L. 124.

In none that I have been able to find is there an intimation that the historic title is not broad enough to embrace the enactments. The language used in In re Hahn, supra, would seem to settle this question.

In this act, now known as “the Practice act,” we find a number of provisions not having to do with procedural steps or administration of litigation merely, but affecting substantive rights. Such a provision is found in section 28, giving a third person a right to sue on a contract for his benefit. This provision has been the subject of much litigation, both at law and in equity.

A reading of the “Practice act” and a study of its history demonstrates that it has acquired in common and legislative usage a meaning much broader than merely to indicate the form, manner and order in which proceedings in courts of law are to progress.

The title, therefore, being appropriate in the light of historic legislative usage to inform any person of the probable content thereof, and the legislation in question being within the general object of the act, the constitutional provision invoked is not violated. Eaton, &c., Co. v. Central Railroad Co., 52 N. J. L. 267; State v. Twining (Court of Errors and Appeals), 73 Id. 683; Gillard v. Manufacturers Insurance Co., 93 Id. 215.

I conclude, therefore, that the fourth affirmative defense must be stricken out.


text:
    Board of Public Utility Commissioners.
    IN THE MATTER OF THE COMPLAINT OF THE PUBLIC SERVICE CO-ORDINATED TRANSPORT v. GARFIELD-PASSAIC BUS COMPANY, IN RE UNLAWFUL OPERATION OF AUTO BUSES ON THE GARFIELD-PASSAIC ROUTE.
    For the Public Service Co-ordinated Transport, Charles S. Straw.

    For the Garfield-Passaic Bus Company, Feder & Binzler, by A. J. Elias and John Binzler.

   This is a complaint by the Public Service Co-ordinated Transport alleging unauthorized operation of auto buses by the Garfield-Passaic Bus Company on the Garfield-Passaic route.

This matter was heard by the board and counsel for the complainant, and the respondent stipulated as to the following facts: That the Garfield-Passaic Bus Company, the respondent, obtained permits from the municipalities of the city of Garfield and the city of Passaic.in 1920, the city of Clifton having granted the permits to the bus company on July 6th, 1920; that the consents were granted before the approval of the board of public utility commissioners was necessary, and that pursuant to the permits which were granted the buses ran on a special trip, with special signs on the bus, starting out empty without a load from the garage of the bus company in Garfield, and that it did travel over Ackerman avenue bridge referred to in the complaint of the public service, but in going over that bridge and on the ■entire route from the bus company’s garage to the Botany Mills, which was the destination of the special trip, the bus •operated empty without picking up and discharging passengers or intending to do so. At the Botany Mills the bus would then take on passagers on this special trip under "the permits and would then carry them over the route which is outlined in the answer filed by the respondent and leave "the passengers off at various places on the route, the last .stopping place on the route being Fourth street. After reaching Fourth street, the bus being empty, it would proceed back to the garage in Garfield, traveling over the Ackerman avenue bridge, but in doing so operating empty and without any intention on the part of the company or its drivers to take on passengers, so that the special journey or "trip it is alleged is lawful and not in violation of law.

The route as outlined in the answer filed by the GarfieldPassaic Bus Company is as follows: From the Botany Worsted Mills to Lake avenue, thence to Randolph avenue, thence to 'Clifton avenue, and thence to Fourth street, Clifton, and return.

On March 17th, 1921, the board of public utility commissioners was given jurisdiction over the operation of auto buses ■on routes which paralleled on the same streets, wholly or in part, the line of a street railway, municipal consents for the ■operation of which were approved or transferred bjr this board subsequent to March 17th, 1921. This act did not extend such jurisdiction to the operation of buses, permits for the ■operation of which were issued prior to this date, unless such permits were transferred to a new owner.

Subsequently, under date of March 24th, 1926, chapter 146, .an act to amend an act entitled “An act to amend an act ■entitled ‘An act concerning public utilities, to create a board of public utility commissioners and to prescribe its duties and powers,’ approved April 21st, 1911, passed April 6th, 1921,” was amended, which extended the jurisdiction of the board, but with certain limitations. Section 2 of this act •contains the following:

“2. Nothing in this act contained shall be construed to include any taxicab, hotel bus, or bus employed solely for transporting school children and teachers, or to require the approval of the board of public utility commissioners of any municipal consent, or the consent of any board of boulevard commissioners, for the operation of any auto bus heretofore granted and now in effect which before the passage of this act did not require such approval to be valid.”

As the municipal consents for the operation of the auto buses complained of were granted prior to 1921 and have continued in effect up until the present time, the board is of the opinion that it is not necessary for the respondent to obtain the approval of this board for this operation in view of the fact that the permits were issued in the year 1920. The board finds and determines, therefore, that this operation is lawful and therefore the complaint is dismissed.


author: Habey J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARGARET MOONEY, PETITIONER, v. TEXTILEATHER CORPORATION, RESPONDENT.
   The above matter coming on for hearing and having been submitted to me for decision, I hereby find and determine as-follows:

A formal petition in the above matter was filed on or about January 6th, 1928, against the above-named respondent under an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto. An answer was filed on February 8th, 1928, in which employment of the peititioner’s intestate was admitted, knowledge of petitioner’s dependents was denied, and in which the respondent disputed compensable liability, leaving petitioner to proof of claim as alleged in her petition. Said answer of the respondent likewise stated as follows:

“Since the American Mutual Liability Insurance Company covered said respondent under the Workmen’s Compensation act, commencing November 18th, 1927, and the Great American Indemnity Company of New York was the insurance carrier prior thereto, a motion will be made on trial to .join the Great American Indemnity Company of New York as a party in interest with, the American Mutual Liability Insurance ■Company to determine the ultimate liabilities of the respective insurance carriers, in the event this claim is found to be .a compensable death claim.”

The case regularly came on for hearing- on May 2d, 1928, which hearing was held in the presence of Potter & Berry, .attorneys for the petitioner and McCarter & English, attorneys for the respondent, on which day witnesses were produced who -were examined in the presence of said counsel. Inasmuch as the insurance carriers could not be parties of record, no motion to join the Great American Indemnity Company of Hew York .as a party in interest was made at the hearing. Proof was, however, submitted of the service of a notice of hearing upon ■the Great American Indemnity Company of Hew York, which •company had likewise been served with the petition but which had failed to answer the same and did not appear at the Rearing.

The testimony showed that the petitioner’s intestate, William J. Mooney, died on December 15th, 1927, leaving a wife, the petitioner Margaret Mooney, and seven children, six of .•said children being under sixteen years of age, the names and ■dates of birth of said children under sixteen years of age being as follows:

Prances Mooney, July 17th, 1912; William Mooney, January 5th, 1914; Richard Mooney, August 31st, 1916; Anna Mooney, January 5th, 1919; John Mooney, January 19th, 1922, and Rita Mooney, June 2d, 1925.

The deceased had been employed, for approximately the last ten years, with the Textileather Corporation, the respond•ent. The testimony likewise showed that his occupation, for the last six or seven years, had been as a finisher in that corporation, in which capacity he operated a machine which •coated material which passed through the machine on a roller with a composition having benzol as a constituent. The deceased’s employer testified that five hundred pounds of the beforementioned composition was used daily by the deceased, -and that said composition was twenty-five per cent, benzol; that the deceased worked in a room which was ventilated solely by windows which frequently, and particularly in the winter time, were closed. There was testimony showing that for the-last six years the deceased’s health has been continually growing worse, and that within the last two years marked changes in his general appearance and in the general state of his health were noticed. Particularly in this respect was there testimony of loss of color, loss of weight, loss of general animation and a tendency towards lethargy, with disorders of the stomach, nosebleeds, frequent headaches, dizziness and loss of appetite.

The deceased came home from work on December 3d, 1927, feeling quite ill. He was confined to his bed, and since m> improvement in his condition occurred, a doctor was called about the middle of the ensuing week. The deceased rapidly declined, failing to make any response whatever to treatment, and died on the following week. The doctor in attendance testified that his patient showed a marked anaemia; that he suffered from a marked pathologic condition of the jaw with bleeding of the gums and infection spreading over not only the gums but the roof of the mouth and the pharynx; that he was at the time of his death suffering from Yincent’s infection which was superinduced by his debilitated constitutional condition which, in turn, was caused by his exposure to benzol. Dr. Harrison S. Martland, the chief medical examiner of Essex county, who autopsied the deceased, testified that he found a marked anaemic condition in every way resembling conditions found in death resulting from exposure to benzol, and that the description of the symptoms, which the deceased described before his death and the result shown in the autopsy, gave a clear picture of death as a result of chronic benzol poisoning. The chief medical examiner further testified that from the description of the symptoms given by the witnesses who were closely connected with the deceased, in his opinion, all the elements necessary to cause the death of the deceased were present by the 1st of November, 1927; that the deceased was suffering from a chronic benzol poisoning which he carefully distinguished from acute benzol poisoning, the acute benzol poisoning having a different symptomatology, resulting in a sudden death from the drinking or rapid absorption of large quantities of benzol at one time; chronic benzol poisoning on the other hand, the chief medical examiner testified, being a condition resulting from continuous or repeated exposure to benzol fumes in concentrations too low to produce-marked narcotic effects, characterized by general systemic disturbances, evidenced by headache, dizziness, weakness, loss of appetite and loss of weight, pallor shown by examination due-to true anaemia, marked reduction in the white blood cells, bleeding from the nose and gums, the development of purplish spots caused by hemorrhages in the tissues, sore and spongy gums and burning eyes and throat, shortness of the breath and tightness of the chest, and sometimes rash and skin eruptions. All of these symptoms appeared in the deceased before his death, and as the testimony showed, were present with the-deceased for a period of at least two years prior to the time of his death. No evidence was submitted in contradiction of these facts.

The testimony, therefore, in the case showed clearly that within a year or two of the time the deceased was first exposed to benzol, which would be about six years prior to his death, that the deceased began to exhibit symptoms of having contracted benzol poisoning, which symptoms gradually increased,, and that as said, two years prior to his death, they became very noticeable, and that from that time on, the deceased declined rapidly, finally dying on December loth, 1927. Dr. McCartie, in addition to having treated Mr. Mooney, the deceased, during his last illness, testified that he was a friend of the family and had had the deceased under his observation for the last, six years prior to his death, and that the latter, during that time, had been gradually failing in health, had becomeanaemic, and in a run-down condition, &c., these things, taken with the other testimony in the case, being all evidential of chronic benzol poisoning.

Dr. Martland testified that the deceased died on December 15th, 1927, as a result of chronic benzol poisoning; that benzol had been undoubtedly affecting the deceased’s system from the time he had been first exposed to it, and that the onset of the disease or poisoning was long prior to November 1st, 1927-He further stated that the period from November 18th, 1927, to December 3d, 1927, -which is the date on which the deceased 'stopped work, had no material effect on his death.

The weekly wage of the deceased is not disputed, and was $31.50 per week. The proof of dependency is not contradicted and the dependents and their ages are as above stated.

It is, therefore, found and determined that petitioner’s intestate, William J. Mooney, was exposed to benzol out of and in the course of his employment with respondent for six years prior to his death, and died as a result thereof, said cause of death being a compensable occupational disease under the Workmen’s Compensation act hereinbefore referred to. It is further found and'determined that as a result of such exposure, said William J. Mooney contracted benzol poisoning prior to November 1st, 1927, and that prior to that date had the ultimate results of said poisoning in his system which brought about his death on December 15th, 1927. It is further found and determined that the period from November 18th, 1927, to December 3d, 1927, had nothing material to do with said death, and that the period of employment, with respondent, responsible for the death of said William J. Mooney, was that period prior to November 1st, 1927. It is further found that the disability of petitioner’s intestate commenced within five months of the determination of said exposure.

Medical expenses of the last illness were as follows: Dr. McCartie, $10; Dr. Snively, $31.

. Funeral expenses are allowed in the sum of $150, in accordance with the act; costs of birth certificates produced at the trial amounted-to $4.50; subpoena fees and expenses for serving same amounted to $23.50; petitioner’s share of stenographic service amounted to $5; compensation board has allowed petitioner’s counsel a counsel fee of $500 to be paid by respondent.

It is, therefore, ordered that judgment final be entered in favor of the petitioner, Margaret Mooney, for herself and six dependents, being children of petitioner and the deceased under sixteen years of age, as follows: Frances Mooney, WiL iam Mooney, Richard Mooney, Anna Mooney, John Mooney, Rita Mooney and against the respondent, Textileather Corporation, in the sum of $17 per week, the maximum allowed, for a period of two hundred forty-five and six-sevenths weeks, in all totaling $4,179.57, said period beginning on December 15th, 1927, and extending to August 30th, 1932; and that further judgment final be entered in favor of the petitioner, Margaret Mooney, for herself and dependents Richard Mooney, Anna Mooney, John Mooney and Rita Mooney, and against the respondent, Textileather Corporation, in the sum of $15.75 per week, or fifty per cent, of the deceased’s wages, for a period of fifty-four'and one-seventh weeks, said period beginning August 31st, 1932, and extending to September 13th, 1933, the sum total for this period being $852.75. It is further ordered that judgment final be entered in favor of the petitioner, Margaret Mooney, for the benefit of dependents, Anna Mooney, John Mooney and Rita Mooney and against the respondent, Textileather Corporation, in the sum of $14.1714 per week, or forty-five per cent, of the deceased’s wages, for a period of sixty-eight and two sevenths weeks, said period beginning September 14th, 1933, and extending to January 4th, 1935, the sum total during this period being $967.95. It is further ordered that judgment final be entered in favor of the petitioner, Margaret Mooney, for the benefit of dependents, John Mooney and Rita Mooney, and against the respondent, Textileather Corporation, in the sum of $12.60 per week, or forty per cent, of the deceased’s wages, for a period of one hundred fifty-eight and four-sevenths weeks, said period beginning January 5th, 1935, and extending to January 18th, 1938, the sum total during this period being $1,998. It is further ordered that judgment final be entered in favor of the petitioner, Margaret Mooney, for the benefit of the dependent, Rita Mooney, and against the respondent, Textileather Corporation, in the sum of $11.0214 per week, or thirty-five per cent, of the deceased’s wages, for a period of one hundred seventy-five and five-sevenths weeks, said period beginning January 19th, 1938, and extending to June 1st, 1941, the sum total during this period being $1,937.25, the sum total for all of the beforementioned periods being $9,935.52. And it is further ordered that judgment be entered in favor of the petitioner and against the respondent for costs as- follows:

Medical expenses during last illness, $41; funeral expenses, $150; costs of birth certificates produced at hearing, $4.50; subpoena fees and expenses of service, $23.50; stenographic service at trial, $5; counsel fee, $500; total, $724.

It is further ordered that expenses, counsel fee and weekly payments from December 15th, 1927, to the date of the signing of this order shall be due and owing upon the signing of this order, subsequent payments to be' made weekly as herein-before set forth.

Habey J. Goas, Deputy Commissioner.


author: Ingersoll, Y. C.

text:
    Stanley W. Zippler et al., complainants, v. Howard J. Westney, defendant.
    [Decided April 9th, 1929.]

      Mr. William Charlton, for the complainants.

      Mr. William Smothers, for the defendant-petitioner.
   Ingersoll, Y. C.

The time of appeal having expired, when this application for leave to file the bill was made, the petitioner was barred, unless his case can be brought within the exception of newly-discovered evidence, or of some special equity that would give the court the discretionary power to make the order. Watkinson v. Watkinson, 68 N. J. Eq. 632.

The petition alleges fraud in the following language:

“Petitioner herein did not make any defense or take any steps to defend said bill of complaint because the complainant Thomas B. Wootton told petitioner, defendant therein, on numerous occasions that further proceedings against the defendant on the bill of complaint would be dismissed and no further action taken against the defendant of the same, and for him to pay no attention to it, and it was because of said false and fraudulent representations of Thomas B. Wootton that the defendant did not make any defense to said bill of complaint or take any appeal from the same. Petitioner herein did not learn that complainants intended to take any further proceedings against him in the furtherance of said bill of complaint until he was served with an order to show cause on or about the third day of March, 1929;” and the affidavit is: “It is true, as hereinabove stated, that I did not make any defense to said bill of complaint because one of the complainants, Thomas B. WTotton, the person with whom I made the agreement of sale, advised me not to make any defense or to take any proceedings in said cause because the complainants were going to dismiss the proceedings begun thereunder and not proceed further against this defendant, and it was not until the third day of March, 1929, that I learned of the further proceedings against me.”

In opposition to the prayer of the petition, several witnesses have testified. This testimony raises substantial doubts in my mind.

Using the language of Vice-Chancellor Learning and following his procedure in Boyer v. Boyer, 77 N. J. Eq. 144:

“In this condition of the record, I feel it my duty to seek further evidence before proceeding further. I think the prayer of the present petition should be denied; but without prejudice to the- right of petitioner to file a petition to open the decree and to permit her to answer. That petition should be accompanied with specific affidavits setting forth in detail all evidence on which petitioner may reply. At the return of an order to show cause, counter affidavits may be read and an early final disposition of petitioner’s claim may, in that manner, be procured.”


text:
    RANDAL B. LEWIS, EXECUTOR, ETC., PLAINTIFF, v. FRED E. HARTMANN ET AL., DEFENDANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiff, Randal B. Lewis.

    For the defendants, Addison P. Rosenhrans.

   Per Curiam.

This is a suit on a promissory note found among the effects of plaintiff’s testator after his death. The plaintiff had a verdict for the amount of the note with interest, and this verdict is challenged on the sole ground that it is against the weight of evidence. The defense was, in substance, that the note was without consideration moving to the defendant and was given merely for the accommodation of Weber, the deceased, to the end that he might be able to discount it and raise money thereon.

The precise language of the .note is material, and the following is a copy thereof:

“$5,000 May 8th, 1926.

Six months after date I promise to pay to the order of George J. Weber, five thousand and 00/100 dollars at Progressive Sand and Gravel Co., East Fifth St., Fairlawn, N. J.

Yalue received with interest.

[Signed] Fred E. Hartmann.”

This note had the outside endorsement of one Herman T. Backhus, who was joined as a defendant in the suit, but as to whom there was a nonsuit, as it was admitted for the plaintiff that notice of non-payment could not be proved. The case made for the defendant Hartmann was that the note had been given by him for the accommodation of Weber, who wished to buy some stock on margin, and although in comfortable circumstances needed the money for that purpose.

In dealing with this defense it is well to consider the circumstances pointed out in the brief for the plaintiff, tending to show that the note is very unusual in form and characteristics for a note intended to be discounted. In the first place it is to run for six months, and it is common knowledge that banks do not usually discount for that period. In the second place it bears interest, which is also unusual for such a note, and in the third place, instead of being made payable at a bank it is made payable at the office of a private corporation in which, as will be seen, all the parties were interested.

As opposed to the defense of accommodation paper, it was shown without substantial dispute that late in April of 1926, and shortly before this note was made, Weber, Hartmann and Backhus were interested as stockholders in the Progressive Sand and Gravel Company; that Backhus had one hundred shares, Weber one hundred and thirty-eight and Hartmann fifty. It was proposed that all three should hold equally, and to that end Weber bought twelve more shares of treasury stock, making his holdings one hundred and fifty shares, and incidentally assisting the company which was short of money. Weber then transferred these twelve shares and thirty-eight shares of original holdings to Hartmann. The par value was $100, each making $5,000 par value. The note followed hard upon this transfer.

Defendant attempted to meet these facts by testimony of alleged statements made by Weber that he was making Hartmann a present of this $5,000 worth of stock in consideration of previous aid given him by Hartmann when he was in a tight place. All this was left to the jury under proper instructions to which no exception was taken, and the jury found a verdict for the plaintiff.

We think the jury were fully justified in refusing to believe that the note was made for the purpose of mere discount for the accommodation of Weber; and if the jury disbelieved that the defense collapses, for the presumption remains in full force that the note was given for some definite purpose, and the explanation about the deal in the sand company stock is entirely plausible.

The rule to show cause will therefore be discharged.


author: Pee Curiam.

text:
    ABRAHAM MENDELSON, RESPONDENT, v. ANNA MAE BAKER, APPELLANT.
    Submitted May 11, 1928
    Decided March 28, 1929.
    Before G-ummere, Chief Justice, and Justice Pabicee.
    For the appellant, 'Elmer W. Romine.

    For the respondent, Herman M. Cone.

   Pee Curiam.

This is a broker’s suit for commissions on sale of real estate. The trial court directed a verdict for the plaintiff.

The broker procured the signature of an intending purchaser to a written contract of sale, which contained a clause now common in that class of contracts, recognizing the plaintiff as broker in the transaction and agreeing to pay him a stated commission.

A number of grounds of appeal are assigned, but we see no merit in any of them except those directed to the exclusion of evidence tending to show that the plaintiff in order to induce the purchaser to sign, had knowingly and willfully misrepresented to him that the property could legitimately be used for the erection of an apartment house, whereas there were in fact certain restrictions prohibiting that use. Among the grounds are the eighth, ninth, tenth, eleventh and twelfth. It appears, or at all events defendant was prepared with evidence to show, and offered to show, the purchaser had refused to complete his purchase because of this alleged misrepresentation and of the restrictions, and that in consequence defendant had lost the sale. All the testimony on this line was uniformly excluded.

Following the general current of authority, our eases hold that the first duty of a broker is loyalty to the interests of his principal, and that his right to commissions depends on his having exercised that loyalty. As stated in the headnote to Carpenter v. Overland Tire Co., 102 N. J. L. 196 : “Loyalty by a sales agent to the interests of his principal is an essential requisite to the agent’s right to recover his commission from the principal; and where he has been a party to the sacrifice of such interests without the principal’s knowledge, he has forfeited his right to such commission.” The same idea permeates the equity case of Gordon v. Kaplan, 99 N. J. Eq. 390.

Testing the case by this principle, and assuming, as we must, that defendant could have proved that plaintiff, knowing the property was restricted against apartment house purposes, induced an intending purchaser to sign by representing, contrary to what defendant had told plaintiff, that no such restriction existed, and thereby induced defendant to' enter into'a contract which she believed was open and above board, we have a ease of a broker claiming commission for securing a contract which he knew or should know was unenforceable because of his own false representations on behalf of defendant and to her detriment.

Such a case would obviously call for application of the rule laid down in the Carpenter case, and if the facts were so found by the jury they would bar a recovery.

It was therefore competent and material for defendant to show that her broker had been false to her interests by a misrepresentation on her behalf to which she was no assenting party; and, hence, it was error to exclude evidence on that line. For this reason the judgment will be reversed.


text:
    DOLORES NERNEY AND JAMES L. NERNEY, HER HUSBAND, PLAINTIFFS, v. STANLEY-FABIAN CORPORATION, A CORPORATION, AND PARK LUMBER COMPANY, A CORPORATION, ET AL., DEFENDANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummebe, Chief Justice, and Justice Parker.

      Eor the plaintiffs, Coult & Satz.

    Eor the defendants, King & Vogt -and William P. Braun.

   Pee Cueiam.

Plaintiff claimed to have sustained injuries by slipping iuto a coal-hole on the sidewalk of Blackwell street, Dover, in front of the premises of the defendant Stanley-Eabian Corporation. The admitted facts are that there is a coal-hole there quite close to the building line, and that the coal wagon of the defendant Park Union Lumber Company was at the curb, and that a metal chute was arranged in position for the delivery of coal from the wagon into the hole. The plaintiff testified that no coal was being actually delivered; the defendants’ driver testified that he had been shoveling coal into the chute, but seeing the plaintiff coming had temporarily stopped. The exact condition seems unimportant. Several conditions that are important are as follows: It appears that the chute extended completely across the sidewalk to within perhaps two feet, of the building and protruded over the opening of the hole; that the iron lid of the hole had been tilted up and in that position lay over the end of the chute so as to cover up the hole as far as possible; that at the front of the building there was a low bench some twelve or fifteen inches wide close up to the front of the building and on which a number of newspapers were displayed for sale; that this left a narrow space of a very few inches between the front of the bench and the iron lid; the net result of all which was that practically anyone desiring to get past the chute would find himself compelled to step over the chute or over the lid. The plaintiff in her testimony says that she saw the chute and undertook to get around the end of if but that she did not see the hole nor the' iron cover, and that suddenty in some manner which she says she cannot explain, she found her left leg down the coal-hole, the cover reversed with three prongs sticking up in the air and the plaintiff’s weight resting on her right knee which had struck the pavement. The injuries to the plaintiff were described by the physicians but we need not stop to consider this phase of the testimony. One of the reasons assigned and particularly argued on behalf of the Stanley-Eabian Corporation (both defendants prosecute the rule) is that the verdict is against the weight of evidence and should be set aside for contributory negligence. We consider that this reason should prevail. We are not unmindful of the line of decisions holding that a person walking along the sidewalk of the public street is not bound as a matter of law to look out for obstructions in the nature of a nuisance; but in the present case that rule is inapplicable because the plaintiff herself saw that there was an unusual situation ahead, she saw-the coal wagon either discharging or about to discharge coal. She saw the chute leading from the coal wagon down over the sidewalk to within a foot or two of the building, and any reasoning being would necessarily realize that that coal was going somewhere and that there was only one place into which it could go, and that was a hole. Consequently, it would seem to have been incumbent on the plaintiff seeing the situation to use such care and circumspection as the obvious conditions required.

Whether the plaintiff should have been nonsuited for contributory negligence we do not decide; however, we are clear that a finding that she was entitled to recover and that the defendants had failed to bear the burden of proving contributory negligence was against the weight of the evidence, and as this result should inure to the benefit of both defendants if it inures to either, the verdict will be set aside and a new trial granted as to both.


text:
    IN THE MATTER OF THE APPLICATION OF TRAVERSE A. SPRAGGINS FOR REINSTATEMENT TO THE BAR, OR FOR PERMISSION TO TAKE THE BAR EXAMINATION.
    Argued October 2, 1928
    Decided March 28, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Por the petitioner, Eugene B. Hayne.

   Per Curiam.

The petitioner’s name was stricken from the roll of attorneys in March, 1915.

He now applies for reinstatement to the bar or for permission to take the examination for admission to the bar.

We have examined carefully the matters which have been laid before us, with the result that we conclude that such application must be denied, and it is denied accordingly.