author: Garrison, Y. C.

text:
    Nils Benson v. Charles Reinshagen et ux.
    [Decided March 23d, 1909.]
    1. Receipts, written by the mortgagor and signed by the mortgagee, acknowledging payments on the mortgage debt, must be taken most strongly against the mortgagor in determining whether they were for payments on the principal or interest.
    2. A debtor may direct the application of payments, and if the creditor receives the money he is bound to apply it as directed, though he does not assent to such application.
    3. Where the debtor fails to direct the application of payments, the creditor may appropriate them as he desires.
    4. The court can only apply the money where the debtor and creditor fail to direct its application to a particular indebtedness.
    5. Where the creditor is entitled to appropriate payments on the indebtedness, on the debtor’s failure to do so he may make the appropriation at any time before a controversy arises between them as to its appropriation.
    6. In a suit to foreclose a mortgage for default in payment of interest alleged to have accrued April 1st, it was unnecessary to amend the complaint so as to allege a default on July 1st, when it in fact occurred.

      Mr. William B. Machay, for the complainant.

      Mr. Charles B. Bradley- (of Collins & Corbin), for the defendants.
   Garrison, Y. C.

This-is an action to foreclose a mortgage which originally was $1,000, and was made on the 1st of April, 1907, with a proviso that the interest was to be paid quarterly together with $75 of principal.

There is no provision. that the mortgage may be foreclosed upon non-payment of the installments of principal; there is such a provision with respect to the non-pajunent of the installments of interest.

The allegation of the bill filed August 8th, 1908, is that the installment of interest due April 1st, 1908, was not paid, -and for that default the whole principal is declared due and the bill filed.

The testimony is uncontradicted that an installment of $75, being up to July 1st, 1907, was paid; another installment, being up to October 1st, 1907, was paid; that interest in the sum of $15, being up to July 1st, 1907, was paid; and interest in the sum of $13.87, in full up to October 1st, 1907, was paid. From this point on the disagreement between the parties ensues.

It is uncontradicted that thereafter there were three payments made of $25 each, on April 18th, June 15th and July 4th, 1908. The complainant testified that upon each of the occasions when these sums were paid him it was stated that they were on account of principal. The male defendant testifies that when the April payment was made he stated that he wanted to pay the interest up and would figure what that was and pay it to the mortgagee, and that the mortgagee said he wanted $25 and just to pay it to him, and he paid it to him, the defendant having the idea that he was paying the interest. His wife says that conversation took place in June on the occasion of the second payment, and not in April at the time of the first payment. According to her testimony the mortgagee did not understand about the matter at all. Her husband, however, stated that he did want to pay the interest. I am inclined to think that some conversation took place between these parties at that time concerning how much was due for principal and how much was due for interest, and that no clear understanding was had by either of them as to what this payment was to cover. I think, probably, the male defendant, the mortgagor, had the idea that it would pay tlie interest, and that anything over would go on account of principal, but I doubt very much whether he stated it in.such a way as to have the complainant understand it, and I do not believe that the complainant did so understand it.

Thereafter, as I have stated, two. other payments were made, one in June and one in July, and each for $25, and the receipts in each instance are practically the same. They were written by the male defendant and signed by the complainant. In eacli instance they recite the receipt of $25 as “payment on house.”

Since these receipts were written by the mortgagor, they, of course, must be taken most strongly against him, and it is quite significant that not one word appears in any of these receipts about interest, although in the earlier receipt of July 5th, 1907, where interest was paid, it is specifically mentioned, and it is also significant that the June, 1908, receipt, which is recited to be “payment on house,” was paid at a time when, according to the defendant, there was no interest due, but he used the same language, namely'', “payment on house,” that he used in the receipt of April 18th, .1908, which he says was practically wholly for interest and not any part of it “payment on the house” or payment on the principal of the mortgage.

The law undoubtedly is that the debtor may direct the application. 2 Am. & Eng. Encycl. L. (2d ed.) 435; and if the creditor receives the money, even though he does not assent to such application, he is bound to make it if he receives the money under such direction. Idem 448.

('living the defendants the fullest benefit of their testimony, this would result in requiring the complainant here to give the defendants credit on account of interest for the $25 paid on the' 18th of April, 1908. At that time, as I carry the figures, the situation was as follows: The principal sum had been reduced $150, leaving still due $850. At the time of this April payment there were two back installments of interest, each of which amounted to $12.75. Without figuring interest on the first one of these, there was due on account of interest on the 1st of April, 1908, these two installments amounting to $25.50. Since he paid $25 which is to be credited to interest, he owed still fifty cents for interest and $150, being two installments of $75 each, on account of principal. On the 15th of June he makes a payment of $25. Since, leaving out the fifty cents of unpaid interest, no interest was due at that time, this would be necessarily credited to principal, there being installments of principal due.

The next payment is on the 4th of July, 1908. At that time the defendants owed fifty cents still on interest due April 1st, 1908, the quarterly interest on the unpaid principal due July 1st, 1908, and three installments of $75 each on account of principal, less the credit of $25 paid June 15th, 1908, making $200 in all of principal.

The male defendant’s own testimony is that at the time of the July payment nothing whatever was said by him as to how this should be credited, and there is no testimony by any witness on behalf of the defendants of any direction or suggestion on behalf of the defendants as to how this payment made on July 4th, 1908, should be credited. The receipt given at that time is,, as has been stated, “payment on house.”

The complainant testifies squarely and unequivocally that it was stated to be for principal; that is, on account of the unpaid installments of principal.

The complainant undoubtedly did appropriate this payment on account of principal.

In his bill filed August 8th, 1908, he specifies the first default in interest as occurring on April 1st, 1908; but at the time of filing the bill another default had occurred more than thirty days previously, namely, upon the interest due July 1st, 1908.

With respect to the April period I have, as above stated, given the defendants the fullest benefit of their testimony and have held that that should be credited as interest, so that there was no default at- that time. But there was a default of the interest due July 1st, 1908, the payment made on July 4th, 1908, as above stated, not having been appropriated in any manner by the debtor and having been appropriated by the creditor to the unpaid installments of principal.

Since the debtor entirely failed to give any direction or suggestion as to the appropriation of this payment it was within the right of the creditor to appropriate. 2 Am. & Eng. Encycl. L. (2d ed.) 437, and the following New Jersey cases dealing with the principle involved: White v. Trumbull (New Jersey Supreme Court, 1836), 15 N. J. Law (3 Gr.) 314, 318; Terhune v. Colton (Court of Errors and Appeals, 1857), 12 N. J. Eq. (1 Beas.) 312; Edwards v. Derrickson (Supreme Court, 1859), 28 N. J. Law (4 Dutch.) 39 (at p. 67); Oliver v. Phelps (Supreme Court, 1843), 20 N. J. Law (Spenc.) 180 (at p. 197); Turner v. Hill (Vice-Chancellor Grey, 1897), 56 N. J. Eq. (11 Dick.) 293.

The defendants suggested that this was a case in which the court should appropriate the payments, but the rule is that the court will only make the application where neither party has appropriated it. Terhune v. Colton, supra (at p. 320); 2 Am. & Eng. Encycl. L. (2d ed,) 447.

Since I find that the debtor did not appropriate this July payment, nor give any suggestion nor direction with respect to it, the law permitted the creditor to make the appropriation. Before any controversy arose between the parties he did make such appropriation, and determined to appropriate it to the unpaid installment of principal. This was his right, and he made his appropriation within time, the rule being, as stated in Terhune v. Colton, supra, that the creditor may make such appropriation at any time prior to a controversy arising. 2 Am. & Eng. Encycl. L. (2d ed.) 446.

The result is that the defence fails -and the complainant is entitled to a decree.

If technical precision is better obtained by so doing, the complainant may now amend his bill by specifically setting up a default with respect to the payment of interest due July 1st, 1908. The presence or absence of such a charge, however, does not, in my view, affect the substantial merits in the least.


source: Caselaw Access Project

license: Public Domain

text:
    Bayerischen National Verband Von Nord Amerika v. Anna Knaus et al.
    [Decided April 14th, 1909.]
    Where a policy of life insurance is payable to a person named and designated as wife of insured, and on his death two women claim to be the person so named and designated, the insurance company is entitled to maintain a bill of interpleader.
    Bill of interpleader. Heard on bill, answer of one defendant, and proofs in open court.
    This is a bill filed by a beneficial society to cause two claimants of a fund it holds to- interplead.
    The bill sets up that by its certificate, No. 7717, issued to Joseph Knaus, it was obligated, upon his death, to pay the sum of $400 to his wife, Anna Knaus. It charges his death, and that a woman living in America and named Anna Knaus has demanded the money of them, as has also a woman living in Germanjr, and that the latter’s name is also Anna Knaus.
    Each claims to be the legal wife of the member, and to be entitled to the money.
    Anna Knaus of America has brought a suit in. the Hoboken district court for the money, and it is sought by the bill to enjoin this suit.
    The Anna Knaus of America filed an answer denying the right of the complainant to cause the defendants to interplead.
    The Anna Knaus of Germany did not file any answer, her solicitor acting under rule 221.
    The facts will sufficiently appear in the opinion.

      Mr. Frederick Diefmbach, for the complainant.

      Messrs. Weller & Lichtenstein, for Anna Knaus of America.

      Mr. John D. Pierson, for Anna Knaus of Germany.
   Garrison, Y. C.

Tlie sole question to be determined at this time is whether the complainant has made out a case entitling it to a decree of interpleader.

The pleadings and proofs before the court show that on the 12th day of July, 1904, the complainant issued a certificate as follows: .

“Death certificate No. 7717 issued by the Bavarian National Union of North America for compatriot Joseph Knaus of Bavarian Section 1, in Jersey City, N. J.
“This Certificate attests, that compatriot Joseph Knaus is a member of said Union and member of Hudson County Section 1, in Jersey City, State of New Jersey, and is fully entitled to the privileges of membership of the .Bavarian National Union of North America and shares in the fund for mutual aid in said Bavarian National Union according to. the following terms: , •
“In case of his wife’s demise said member receives the sum of Two hundred fifty dollars ($250) and in case of the said member’s demise, his wife or children, or that person or persons or body to whom the death-money has been assigned during the said member’s lifetime by him shall be paid the sum of Four hundred dollars ($400.)
“According to direction by above mentioned member now this latter sum of four hundred dollars ($400.) shall be .paid to his wife Mrs. AnnaKnaus after his death within the lawful time.
“This certificate stipulates, or has full validity only, if compatriot Joseph Knaus remains a member and fulfills all obligations, laws and regulations of the Bavarian National Union of North America at all times.
“In Witness Whereof the Bavarian National Union of North America ordains the signatures of the Grand-President and Grand-Secretary, provided with the National Union’s Seal.
“Buffalo, N. Y. on the 12th. day of the month of July in the year 1904.”

The Joseph Knaus named therein is dead. The complainant admits its liability to pay, under the certificate, to whomsoever is legally entitled thereto.

Joseph Knaus wrote letters to a woman in Germany, whom he called Mrs. Anna Knaus, and to whom he referred as his wife, and in these letters refers to their children.

Joseph Knaus also, coming to America and leaving the woman in Germany, took up with another woman here, and lived with her, calling her his wife, and she also is known as Mrs. Anna Knaus.

The death certificate recites that they are to pay the money "to his wife, Mrs. Anna Knaus.”

The American Mrs. Anna Knaus has brought suit. The German Mrs. Anna Knaus has lodged a claim and authorized certain relatives in America to act as her attorneys in fact to collect the same.

The contention of the American Mrs. Anna Knaus is that she clearly is entitled to the money, and, therefore, the complainant has not the right to cause her and the other defendant to interplead. She bases her claim upon what appears in the application for membership, which she says, if read in connection with the certificate, would indicate clearly that she was the person entitled and the person to whom, under the authority of Prudential Insurance Company v. Morris, 70 Atl. Rep. 924, the money must be paid.

The application is pot mentioned in the certificate, and there would seem to be a grave question as to whether it is any part of the contract. Under the by-laws there may be a grave question as to whether whichever one of these parties is not his wife could take the money as if she were his wife.

In my view, there is no doubt that under the authorities in this state and the proper principle to be applied, the complainant is entitled to cause the defendants to interplead. In the case of Pennsylvania Railroad Co. v. Earl's Executors, 63 N. J. Eq. (18 Dick.) 634, a very similar contention was presented to the court. Tn that case the widow of a member of a beneficial order claimed that by the perfectly plain terms of the contract she was entitled to the money, and that the stakeholder, therefore, was not entitled to file a bill of interpleader. Although the vice-chancellor was inclined to agree with her contention that she showed the better right to the money, he held that the complainant had an equity not to be sued twice when it had but one liability and had no duty to decide between the respective contentions of the claimants upon the fund, but was entitled to protection from both.

This holding was in consonance with the previous decisions in this state. Packard v. Stevens, 58 N. J. Eq. (13 Dick.) 489; Pennsylvania Railroad Co. v. Wolfe, 52 Atl. Rep. 247; Wakeman v. Kingsland, 46 N. J. Eq. (1 Dick.) 116; Supreme Council of Chosen Friends v. Bennett, 47 N. J. Eq. (2 Dick.) 42; Ireland v. Kelly, 60 N. J. Eq. (15 Dick.) 312; Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. (20 Dick.) 60.

The wisdom of the rule is curiously exemplified by the very case from which I have cited it.- In that case (Pennsylvania Railroad Co. v. Earl’s Executors, supra) the vice-chancellor was clearly of the opinion that the widow had the better claim, and, in the suit itself over the fund after the interpleader, so decided.

Upon appeal, however, to the court of errors and appeals his decision in that respect was reversed, and it was held that she had.no interest in the fund whatever. Stevenson v. Earl, 65 N. J. Eq. (20 Dick.) 721.

If, in the case at bar, the court should determine that an inter-pleader does not lie, the complainant must solve many debatable questions, and all of them at its own peril. I do not think that this burden should be cast upon a stakeholder who is willing to bring the money into court, who is not a wrong-doer as to any of the defendants, and who seeks protection against conflicting-claims, each of which has some debatable basis. '

I will advise a decree of interpleader, and will order that the defendants frame an issue between themselves and bring on the hearing as to their rights in the fund.


text:
    The Chelsea Land and Improvement Company v. John S. Westcott.
    [Decided April 21st, 1909.]
    A covenant in a deed of riparian lands, providing for a line for solid filling and beyond that an exterior line for piers, and stipulating that the land beyond the solid filling line shall not be used for any purpose except the erection of a pier or piers thereon under which the tide may ebb and flow, is not violated by the erection of a boat house on the piers resting 'on the land, since, so long as the land between the line of the solid filling and the exterior pier line has nothing erected on it except piers, the covenant is not violated. The word “pier” generically means a support, and in its precise use the absence or presence of water surrounding it is immaterial, though its customary use is with respect to projections into water.
    On demurrer to bill.

      Mr. Robert 71. Ingersoll, for the demurrant.

      Mr. Ulysses G. Biyron, for the complainant.
   Garrison, Y. C.

The bill charges that the state granted to the Chelsea Land and Improvement Company certain riparian lands at Atlantic-City, New Jersey, and in the instrument transferring the title provided with respect to the lands under water lying between the exterior line for solid filling and the exterior line for piers as fixed by the commissioners that “said land * * * is not to be used for any purpose whatsoever except the erection of a pier or piers thereon, under which the tide may ebb and flow, and no solid fillings shall be placed thereon.”

The Chelsea Land and Improvement Company deeded a portion of the riparian lands derived from the state to the defendant, John S. Westcott, and in the deed from the land company to Westcott inserted the provision above quoted in haec verba.

John S. Westcott has planned to erect a boat house upon the pier or piers, which latter rest upon the land in question.

The contention of the complainant is that such an act upon the part of Westcott is a violation of the covenant or restricti.on.

T think it perfectly clear that the intention in fixing a line for solid filling, and, bejrond that, an exterior line for piers, was to limit the distance into the water that solid structures interfering with navigation might go, beyond which only such structures in the water should be permitted as would not prevent navigation.

The generic meaning of the word “pier” is a support, and in its precise use the absence or presence of water surrounding it is immaterial. A “pier” might rest upon solid ground, utterly without reference to the presence or absence of water. Its more customary use, however, is with respect to projections into water.

It will be observed that the language is “pier or piers,” and this connotes the presence of one or more of these supporting columns. What is supported on the columns does not change the name or character of the substructure. So long as the land between the line of solid filling and the exterior pier line has nothing erected on it excepting piers, I do not think that the covenant has been violated.

The demurrer will be sustained, with costs.


author: Garrison, V. C.

text:
    Sarah E. Carpenter v. Sara R. Shanley.
    [Decided April 20th, 1909.]
    Under the conditions of a master’s sale that the property was sold free of encumbrance, the purchaser did not take the property free from an improvement assessment, confirmed after the confirmation of the sale, but before delivery of the deed, and cannot have the amount of an assessment which became a lien before delivery of the deed paid out of the purchase price, and so get a title free of encumbrance.
    On petition of L. Theodore Everett.

      Mr. J. Merritt Lane, for the petitioner.

      Messrs. Melosli £ Morten, for the complainant.
   Garrison, V. C.

This is a petition on behalf of the purchaser at a master’s sale, praying that the master be directed to pay out of the purchase-money the sum of $350, which is the amount of an assessment for an improvement to the property, which assessment was confirmed against the property on the 9th day of February, 1909.

The property was sold by the master on the 30th day of De-' cember, 1908, and the conditions of sale provide that it was sold free and clear of encumbrance. Both parties admit without argument that whatever the law might otherwise be, the conditions of sale control the question involved in this case. The order confirming the sale was filed on the fth of January, 1909. The time fixed by the conditions of sale for the delivery of the deed was February 1st, 1909, but because the master did not, for some reason, receive the order confirming sale, it was adjourned to the 19th day of Februaiw, 1909.

As before stated, the assessment was confirmed on the 9th of February, 1909. Both parties concede that the assessment became a lien and encumbrance from the date of its confirmation. Cadmus v. Fagan (Court of Errors and Appeals, 1885), 47 N. J. Law (18 Vr.) 549.

The petitioner’s contention is that since this assessment became a lien before the deed was delivered to him he is entitled, under the conditions of sale, to have the amount of the assessment paid out of the purchase price so that he will, at the time of the delivery of the deed, get a title free and clear of encumbrance. I think that the authorities in this state settle the point against the contention of the petitioner. It has been held by the court of errors and appeals that “the date of the delivery of the sheriff’s deed is a circumstance of no importance. A purchaser at a sheriff’s sale acquires by the act of purchase a right to a convejumce of the premises in pursuance of the sale. The delivery by the sheriff of a deed is a mere ministerial act which’ the officer is required to perform to consummate the sale and vest in the purchaser a title in compliance with the law under which Ihe sale was made. Walker v. Hill’s Executors, 22 N. J. Eq. (7 C. E. Gr.) 513, 530. The sheriff’s deed, when delivered, has relation back to the time of the sale of which it is the consummation. Jacobus v. Mutual Benefit Life Insurance Co., 27 N. J. Eq. (12 C. E. Gr.) 604, 608; Morse v. Hackensack Savings Bank (Court of Errors and Appeals, 1890), 47 N. J. Eq. (2 Dick.) 279 (at p. 281); see, also, Wimpfheimer v. Prudential Insurance Company of America (Vice-Chancellor Emery, 1898), 56 N. J. Eq. (11 Dick.) 585 (at p. 591).

If a confirmation by the court is to be considered as a necessary step in completing the sale, that act took place in the suit at bar before the assessment became a lien upon the premises. It seems entirely clear, therefore, that the sale was completed and was free of encumbrance at the time of its completion, and that the encumbrance in question arose thereafter.

The petition must be dismissed, with costs.


text:
    Alexander M. Taylor v. The Public Service Corporation of New Jersey and The Paterson and Passaic Gas and Electric Company.
    [Decided April 26th, 1909.]
    1. Under act May 22d, 1894 (P. L. 1894 P■ -477), authorizing cities to erect poles in the streets for public lighting' without the consent of abutting landowners or previous designation of the streets, a landowner cannot restrain the placing of poles and wires in front of his premises for transmission of electricity for public lighting.
    2. A landowner may restrain the maintenance of poles and wires in front of his premises for transmission of electricity for private lighting, where the previous designation of the streets by the city has not been made, and the consent of the abutting landowner has not been obtained, as required by act May 10th, 1884 (P. L. 1884 P• 331), acts 1893 (P. L. 189S p. 41%), and acts 1896 (P. L. 1896 p. 3%%).

    3. Acts May 18th, 1898 (P. L. 1898 p. 458), curing defects in proceedings by municipalities purporting to authorize electric lighting companies to construct and maintain lines for furnishing light, was intended to cure irregularities and invalidities of municipal action, and did not affect the right of a landowner, whose consent was not obtained to the construction of a line in front of his premises as required by law, to maintain an action to restrain the maintenance of such line.
    4. Equity has jurisdiction to restrain an electric lighting company from misusing the wires on poles in • front of complainant’s premises, restricting their use to public lighting if the company has not the right to use them for private lighting.
    Heard on bill, answer, replication and proofs in open court.
    This is a bill filed by the complainant, who is the owner of real estate in the city of Passaic, to restrain the defendants from stringing and rising certain wires, to convey electricity, on poles in front of the complainant’s property.
    The issues and facts will be fully stated hereafter.

      Mr. George P. Bust and Mr. Arthur S. Corbin, Cor the complainant.

      Mr. L. D. Howard Gilmour, for the defendants.
   Garrison, V. C.

The complainant is the owner of a tract of land fronting for about two hundred and forty feet on Central avenue in the city of Passaic, having acquired title thereto in April of 1899. Upon his land is erected a row of three-story brick stores and dwellings, the dwelling portions of which are' occupied by some thirty families.

The Public Service Corporation is the lessee of the Paterson and Passaic Gas and Electric Company, which was formed by the consolidation of the Passaic Lighting Company and several other companies. The Passaic Lighting Company, in turn, was formed by the consolidation of the Passaic Gas Light. Company and the Passaic Electric Light, Heat and Power Company. This last-named corporation, on the 7th of November, 1887, addressed to the common council of the city of Passaic a petition as follows

“Passaic, N. J., November 7th, 1887.
“To the Honorable the Common Council of the City of Passaie, N. J.
“Gentlemen—The undersigned, representing the Passaie Electric-Light, I-Ieat and Power Company, respectfully inform your Honorable-Body that the said company is prepared to establish in this City a plant for the purpose of furnishing light, heat and power for commercial, domestic and municipal purposes in the most economical and best approved methods. The said Company respectfully request from your Honorable Body the privilege of placing their lines through, over or under the streets, alleys and highways of the City of Passaic. All poles- will be set subject to the approval of the Street Committee or Street Superintendent, and also subject to the consent' of property holders in the-vicinity of whose property the poles are to be placed. Said poles will be-painted slate color, or any other desired tint.
“Soliciting a favorable consideration, your petitioners will ever pray.
“C. A. Stbllins,
“General Manager of the P. E. L. H. & P. Co."

On the 5th of December, 1887, this petition was returned to-the petitioner because the company had not been incorporated. It was incorporated on the 18th of January, 1888, under the General Corporation act. .On January 6th, 1888 (no explanation being made concerning these dates), the above petition was returned to council by Stelling, general manager, who informed tlie city council that the company was now incorporated. This petition was on that day, January 6th, 1888, received and referred to the street committee, who later submitted a report the material parts of which are as follows:

“Your Committee on Streets recommend tliat the petition of the Passaic Electric Light, Heat and Power Company be granted, provided further, that they will do and perform all things required of them in the erection, construction and maintaining of their said plant that may be required by the City of Passaic, or any privilege that said City may demand in regard to tlie use of their poles by said City under a forfeiture of said privilege.”

This report was, on the same day, acted upon, and the recommendations therein contained adopted.

Since whatever rights the defendants have arise out of these proceedings, and it is immaterial in which company they are vested (since no point is made respecting that), I shall hereafter refer to the owner of the right, or the claimant of the right, as the defendant.

In 1895 the defendant entered into an agreement with the. city of Passaic to furnish electric lights, arc and incandescent, for lighting the streets of the said city for a term of five years.

In 1897 the defendant erected, in front of the premises described in the bill of complaint, three poles, thirty feet high and forty inches in circumference, one at the corner of Jackson street and Central avenue, one at the corner of Van Burén street and Central avenue, and a third about half-way between said streets, and on these poles strung wires for the purpose of supplying electricity for the street lights and also for lights in private houses.

At this time the property in question was not owned by the complainant, but by his predecessor in title.

These said poles have lately been removed and the wires formerly thereon placed upon an additional cross-arm on the larger poles which have been erected in their places. These last-named poles have been put, approximately, in the places of the old poles, and are fifty-three feet high and sixty inches in circumference.

In addition to the wires which had been carried on the old poles it is the intention of the defendants to place upon these poles wires for the transmission of alternating current electric power of a voltage of over sixty-five hundred volts. This power is to be manufactured in the city of Paterson and transmitted therefrom to the company’s power-house in the city of Passaic, through Central avenue, past the property of the complainant before mentioned. Said electric current is then to be distributed from said power-house throughout the city of Passaic and the various surrounding communities for public and private consumption.

The defendants have not any grant or consent from the complainant for the erection of any poles in front of his premises. No grant or consent in writing by any predecessor in title of these premises is produced or proven by the defendants.

The wires in use in front of the complainant’s property carry a current of about twelve hundred volts, which is the amount needed by the company to supply their customers, municipal and individual.

The complainant contends that the carrying of sixty-six hundred volts by the high-tension system sought to be placed upon these ¡Doles will create a dangerous situation, and much proof was offered upon this point. Since I do not put my decision upon any question of the existence of a nuisance, or of a servitude imposed in addition to what the owner consented should be imposed, I do not find it necessary to pass upon the weight of the evidence or the issues presented thereby.

The complainant’s position further is that the defendants, not having secured from the owner of the property at the time of the erection of the poles or at any time thereafter any consent in writing (or otherwise, so far as appears) to the erection and maintenance of these poles, they may be only erected and maintained for the purpose of carrying out the contract to light the streets; that the defendants are acting without warrant in using these poles to carry wires to supply private customers, and that there is no warrant or right for the placing upon these poles of the wires of the high-tension system to carry the sixty-six hundred volts from Paterson to Passaic and thence to the outlying communities.

The complainant, however, does not insist upon exercising liis right to prevent the use of these poles or wires for private lighting, i. e., wires such as were used before the projection of the high-tension system, and which carried about twelve hundred volts. He does, however, insist upon his right that these poles shall not be used for the high-tension system.

At the time of the erection of these poles in 1897 the law was as follows: Public lighting was regulated by the act of May 22d, 1894 (P. L. 1894 p. 477), and a municipality might, under that act, without the consent of the abutting landowners or previous designation of streets, use the streets and erect poles or cause poles to be erected for public lighting. The acts of 1884 (P. L. 1884 p. 331); 1893 (P. L. 1893 p. 412), and 1896 (P. L. 1896 p. 322), applied to private lighting companies which desired to use streets for private lighting, and required the consent of the abutting landowners and the designation of streets by the city before poles could be erected. Meyers v. Electric Company (Court of Errors and Appeals, 1899), 63 N. J. Law (34 Vr.) 573.

If, therefore, the defendants, by virtue of their contract and. the proceedings of the municipality, had a right, as against the munieipalitly, to erect these poles for the purposes of public lighting, the complainant, or any landowner similarly situated, could not prevent the placing of the poles, or their being used, for the purposes of public lighting. But if the company was in this position and used the poles for stringing wires for private lighting, the landowner, with respect to whose land no consent in writing had been given, had the right, by ejectment, or by resort to equity, to restrain such misuse. French v. Robb (Court of Errors and Appeals, 1901), 67 N. J. Law (38 Vr.) 260; Andreas v. The Gas and Electric Company of Bergen County (Vice-Chancellor Pitney, 1900), 61 N. J. Eg. (16 Dick.) 69.

I do not understand that, the defendants seriously, if at all, deny the application and effect of the above authorities, and, in passing, it should be pointed out, I think, that the defendants are peculiarly situated in this case because of the form of their alleged municipal consent. It will be observed that in the petition presented by the company it is recited that

“all poles will be set subject to the approval of the Street Committee or Street Superintendent, and also subject to the consent of property holders in the vicinity of whose property the poles are to be placed.”

The testimony is silent as to the method of the adoption by the council of the consent. The recommendation of the committee providing that the petition should be granted upon certain conditions is merely recited to have been “received and adopted.” It may well be, therefore, that this company, by the municipal procedure in question, has only acquired the right, even as against the municipality, to set poles solely at places where they have obtained the consent of the abutting property owners, in accordance with their own expressed intention. However this may be, it is entirely clear that in 1897, when these poles were erected, there was not the slightest right, as against the land described in the bill, to use the poles erected in front thereof to carry wires for private lighting.

The defendant, however, contends that this situation is cured and the maintenance of the poles, as against the complainant, legalized by the act approved May 18th, 1898 (P. L. 1898 p. 458), the material parts of which are as follows: “All proceedings heretofore had or taken by the several municipalities of this state, purporting to authorize the construction of pole lines, to be used by electric light companies for the purposes of their business and under which pole lines have been constructed, and all contracts entered into by the several municipalities with electric light companies, in the carrying out of which pole lines have been erected by such companies, shall be taken to be legal and binding, and to have authorized the erection of such pole lines and to authorize their maintenance for public and commercial use, and the electric light companies which shall have so constructed pole lines, and placed thereon wires for the purpose of furnishing electric light in the streets of any municipality, shall be deemed to have and possess in such streets all legal authority necessary to be secured from such municipality in order in such streets to lawfully construct, reconstruct and maintain such pole lines and wires, with proper appliances for the sup- ] lying of light for public or commercial use.”

The act of 1894 (P. L. 1894 P. 477) provided that the governing body might, by ordinance or resolution, provide for the lighting of streets, and, as we have seen, it was under this act that the company’s right to maintain poles in the streets without the consent of the abutting landowners was vindicated. Meyers v. Electric Company, supra; French v. Robb, supra.

It does not appear, as I have just pointed out, in the ease at bar that the municipal proceeding was either by ordinance or resolution—apparently it was by motion only that the alleged consent of the municipality was given. In this very case, therefore, there was a condition which probably existed in many other instances in which proper proceedings to grant “the legal authority necessary to be secured from the municipality” had not been had.

In my view, the act in question was intended to cure such irregularities or invalidities of municipal action, and had no reference to and did not affect those eases in which the consent of abutting property owners was required. It seems to me that if it had been the intention to deal with the rights of private individuals rather than the rights of the public represented by the municipality, there would have been some reference at least to such private rights. I do not see why there would not have been a direct reference and direct legislation with respect thereto. If the act had intended to legalize, as against abutting property owners, poles to be used for private lighting and which had been erected on their property without their consent, it would have said so. It does nothing of the sort. It legalizes poles erected under contracts with municipalities and by reason of proceedings in municipalities in so far as the legality of such municipal proceedings are concerned. It, therefore, serves to save to this defendant the right, as against the city of Passaic, to maintain these poles in the-streets for public lighting, notwithstanding the irregularity or invalidity of the action of the city in not acting by ordinance or resolution. It does not, in my view, affect at all the rights of a non-assenting abutting property owner with respect to the poles placed opposite his property, and leaves him, as be was before, entitled to object to their use for any purpose other than public lighting.

It is argued by the complainant that even if the act of 1898 had attempted to deprive the abutting property owner of his right in cases where he had not consented to the use, such attempt would be futile because unconstitutional, and authorities are cited for this position, among them Andreas v. The Gas and Electric Company of Bergen County, supra. To this the response of the defendant is that the dedication of the street to public purposes deprives the landowner of the right to object to erections placed therein by municipal consent, provided such erections are used for public purposes and are proper for such use in streets.

I do not pass upon this question because of my finding above stated, that the act of 1898 was not intended and does npt properly express any intention to legislate at all with respect to the rights of private landowners, but merely seeks to make effective, as against the municipality or anyone objecting on behalf of irregular proceedings of the municipality, whatever was done to vest the legal rights necessary to be secured from the municipality to maintain poles then erected. If this were not so, the unanimous decision of’ the court of errors and appeals in the case of French v. Robb, supra, would not have been what it was. In that case the municipal proceedings were taken on the 30th of November, 1897, and the pole was renewed in 1899, so that it undoubtedly was originally erected before the act of 1898; and if the effect of the act of 1898, above stated, was to legalize the poles erected theretofore, as against a non-assenting abutting landowner, the plaintiff in that case would not have succeeded in his ejectment against the right of the company to use the pole for private lighting as the court of errors and appeals decided that he should succeed.

While the court does not refer to the act of 1898, it is quite obvious that if it had considered that act as applicable it would have referred to it. By silence it is decided that the act of 1898 did not legalize the erection of the pole as against the private landowner, excepting for municipal purposes, and that as to its use for private lighting, he had the right to bring ejectment and to restrain such misuse by action, in equity.

The defendants in this suit did not by demurrer raise any question of the propriety of equity taking jurisdiction, and besides the direct statement of the court of errors and appeals in French v. Robb, supra, it seems clear on reason and authority that this court has jurisdiction to restrain the misuse of the pole by the defendants. French v. Robb, supra; Andreas v. The Gas and Electric Company of Bergen County, supra.

The injunction will, therefore, go to prevent such misuse, and will prevent the using of any-wires on the poles in front of the complainant’s property for the high-tension system projected by the defendants.


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    The City of Passaic v. The Public Service Corporation of New Jersey and The Paterson and Passaic Gas and Electric Company.
    1. Act May 18th, 1898 (P. L. 1898 p. 458), curing defects and irregularities in proceedings by municipalities to authorize electric lighting companies to construct and maintain in its streets lines for furnishing-light, rendered valid a previous grant of such authority by a city, in form of a motion, instead of by ordinance or resolution.
    2. A city is not entitled to restrain an electric lighting company from maintaining and using its line of poles and wires on the ground of a forfeiture of its privilege, without first giving the company notice of a claim of such forfeiture, and an opportunity to be heard.
    3. If a city has power, by regulation, to prohibit electric light wires carrying more current than a stated amount, and to prohibit the erection of poles over a certain size,, such right can be exercised only by general ordinance.
    4. The right of action, if any, against an electric lighting company for abuse of its charter powers in transmitting electricity from the city, where its plant and franchise is situated, to outlying communities is in the state, and not the city.
    Heard on bill, answer, replication and proofs in open court.

      Mr. George P. Rust, for the complainant.

      Mr. L. D. Howard GUmowr, for the defendants.
   Garrison, Y. C.

This case was, by consent, tried and submitted with the case of Taylor v. The Public Service Corporation of New Jersey and The Paterson and Passaic Gas and Electric Company, immediately preceding this.

The bill charges that the defendants have lately erected on the easterly side of Central avenue the large poles mentioned in the preceding opinion, which poles are unsightly and dangerous; that the purpose of the poles is to carry wires upon which an electric current is to be transmitted from the city of Paterson to the city of Passaic, and thence through Central avenue to Monroe street, to Hamilton avenue, and thence to the power house of the defendants, located at the intersection of Passaic street and Columbia street in the city of Passaic; that the said current is to have a voltage of sixty-five hundred volts; that on all of the said streets just named the defendants have erected, or contemplate erecting, similar poles for the purpose of distributing therefrom electricity to the citizens and residents of the city of Passaic and of the various surrounding communities; that no authority or permission has been given to the defendants by the city for the erection of said large poles and the stringing thereon of said electric wires for the transmission of the aforesaid high voltage current, a'nd that the acts of the defendants in this respect are without grant or consent and are entirely illegal; that for the purpose of supplying electricity for the public and private lighting of the city of Passaic a current not exceeding twelve hundred volts is all that is required, and that the carrying of upwards of sixty-five hundred volts is unnecessary and extremely dangerous to life and property. The prayer is that the defendants may be restrained from further proceeding with the construction of said poles and wires for the transmission of the high-tension system and from the use of said poles for any purpose, and that the court will compel the wires, which have already been strung as aforesaid, and the large poles which have already been erected as aforesaid, to be taken down and removed.

By permission of the court the defendants filed a demurrer and answer.

They demur upon the ground that there is no- equity in the-bill; that the complainant has an adequate remedy at law, and that it appears by the bill that the court of equity has no jurisdiction over the alleged cause of action.

They answer by admitting the facts as set up in the bill, and claim that by the action of the municipal authorities on the 6th of January, 1888, which is set out in full in the opinion in the case of Taylor v. The Public Service Corporation of New Jersey and The Paterson and Passaic Gas and Electric Co., supra, they obtained full power and authority to do that which they are doing.

No evidence was introduced as to conditions at any other place than on Central avenue in front of the premises of Taylor, asset forth in the opinion in Taylor’s Case, and what I have to say is entirely confined to what was proven with respect to that portion of the street or streets.

I do not know whether I correctly apprehend the exact attitude-which the city takes in this matter, as little'attention was paid in the argument or in the briefs to the city’s case, the entire-stress being placed upon the rights of Taylor. It would seem to me, however, that the utmost claims which the city could put forth would be either (a) that the defendants have no right, because of the lack of valid municipal action, to place any poles-in the street at the place in question; or (&) that there was a condition contained in the privilege granted the defendant companies by the city that the said companies must “do and perform-all things required of them in the erection, construction and maintaining of their said plant that may be required by the city of Passaic—under a forfeiture of said privileges,” and that this-work is either “erecting, constructing or maintaining the plant,” and may by the city be required to be done differently under penalty of forfeiture; or (c) that the city, in the exercise of the police power and the power to regulate the use of its streets, may prevent wires carrying electricity of a higher voltage than a. fixed amount, beyond which no user of the streets for such purposes may go; or (d), finally, that the maintenance of these poles and wires is a nuisance.

I will take these up in their order, and suggest briefly the law relating thereto. It seems perfectly clear that if this work is mere replacement of poles legally erected under valid authority, no attack can be made excepting such as would have applied to the poles originally placed.

(a) As has been indicated in the opinion in the Taylor Case, the proofs do not show a granting by ordinance or'resolution of the municipal body of the rights claimed by the defendants. The procedure is set forth in full in the above case, and it would appear therefrom that the privilege, as it was called, was granted upon motion. I incline to the opinion that the act of May 18th, 1898 (P. L. 1898 p. 458), was intended to meet just such cases, and to legalize, as against the municipality, the poles then erected under what otherwise would be invalid municipal action. Therefore, the first ground of complaint is without merit, because of the curative legislation just referred to. As will he seen by reference to the opinion in the. Taylor Case, these poles were originally erected in 1897, and therefore come within the language of the act of 1898.

(b) The second suggested ground is that by reason of the condition contained in the grant of the privilege, the municipality may require the company to erect, construct and maintain its plant in a certain way, upon pain of forfeiture. Granting that this is so, it would appear that this bill is premature, because before the city could act upon the situation as if the privilege were forfeited, it must first take proper procedure to forfeit it. If the claim of the city is that the defendants have done that which causes a forfeiture of their privilege, either by erecting poies of an undue size, or projecting the use of a current of - an undue amount, or otherwise constructing or maintaining their plant in a manner violative of the privilege, they must give the defendants notice and an opportunity to be heard, and take action cpitasi-judicial in character declaring the forfeiture. Nothing of this sort has been done, and, in default of it, I do not think the city has any right to invoke the aid of the court to take its place in determining whether a breach has taken place which should result in forfeiture, and thereupon to declare a forfeiture, and deal with the defendants as if they were without the -protection of the municipal consent or privilege aforesaid.

(c) The third suggested ground of complaint is that the city has the right and power to regulate the use of the streets and the maintenance therein of wires carrying electric current, and, in the course of such regulation, might prohibit wires carrying more current than an ascertained and stated amount, or prohibit the erection of poles over a certain size. I do not decide, because I do not have to, whether the city has this power; but assuming that it has, I am quite clear that it must exercise it by some general ordinance defining the offence or regulating the matter. Until this is done, I do not think the city has any right to proceed in individual cases, because, until there is a law, there is no offence.

(d) As the last suggested ground, I am not prepared upon the pleadings and proofs in this case, to hold that these poles and wires constitute a nuisance which should be restrained in equity. As to the poles, as I have before stated, I hold that the act of 1898 legalizes their existence as against the municipality, and 1 do not find that the mere size of the poles constitutes a nuisance. As to the high-tension system, the proofs do not make it at all clear that there is any such danger therefrom as to constitute its presence in the street a common nuisance.

Finally, if it be contended, as there is some suggestion, that because it is intended to carry this power from Paterson to Passaic and thence to outlying communities, there is some abuse of the charter powers of the company, this, of course, can only be taken advantage of by the state and not by the complainant herein. There is, of'course, a remedy at law in the complainant, if his ease were well founded; but I am not inclined to refuse relief here because thereof, as it may well be that such remedy would not be adequate if the complainant were entitled, with respect to the wires to carry the high-tension system, to relief at this time.

The result is that the bill in this case must be dismissed, and I will so advise.


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    Fritts et al. v. Delaware, Lackawanna and Western Railroad Company.
    [Decided February 5th, 1909.]
    1. A railroad company will not be enjoined from withdrawing from a railroad station the personal attendance of an agent, though the railroad! contracted with an individual that .one be kept, but the individual will be remitted to his suit for damages, as public policy requires that railroads be free to serve the public without being hampered by private-contract.
    2. Any right which the public have to compel a railroad to maintain, a station at a certain point is a legal one, enforceable by mandamus, and not by injunction to prevent the discontinuance.
    3. Since by act May 15th, 1907 (P. L. 1901 p. 1/1¡8), a railroad commission was formed giving it control over railroads generally, any question as-to the right to prevent a railroad from discontinuing a railroad station should in the first instance be submitted to the commission.
    Heard on bill, answer and agreed state of facts.

      Mr. Oscar Jeffrey, for the complainants.

      Mr. Max M. Stallman, for the defendant.
   Garrison, V. C.

This is a bill hied by the complainants to secure an injunctions against the defendant, preventing the latter from discontinuing a railroad station at Broadway, Warren county, in this state.

The proofs show that the defendant company had established' a station at the place above named and maintained a man in. charge thereof. On a certain date they announced that they were going to- abandon the station. It turns out from the proofs-that they did not mean that they were not going to stop any trains at that place thereafter, but that they were going to withdraw from it any personal attendance , of an agent.

No charter or' statutory provision requiring the establishment or maintenance of this station was shown to exist. In its general features the case was so nearly similar to that of Jacquelin v. Erie Railroad Co. (Vice-Chancellor Garrison, 1905), 69 N. J. Eq. (3 Robb.) 432, that its decision would be controlled by that case. The only distinguishing feature was that one of the complainants claimed that by a deed, in which he was a grantor and the railroad company a grantee, there was a provision requiring the railroad company to maintain a station on the land granted. I shall not analyze the proofs to determine a disputed question of fact as to whether the station is in any sense of the word on the granted land. I am inclined to the opinion that it is not. I think that the facts show that it is on an adjacent tract, and that the granted tract was used as a means of approach. • Even if the station building itself had been on the granted tract, I am still of the opinion expressed by me in the Jacquelin Case, above cited, that if a private individual has acquired by contract a right to compel a railroad company to maintain a station at a certain point, such right will not be enforced by injunction restraining the discontinuance of the station, but the party will be remitted to a suit for damages, and that this principle will be applied because public policy requires that the railroads be free to properly serve the public, which they could not do if the courts enforced private contracts concerning the number of trains and places of stopping, which would hamper them in the proper running of their roads.

So far, then, as the right which any complainant here may claim to have by reason of private contract, I refuse relief upon the principle just stated.

So far as the right is public, I refuse relief for the reasons stated in the Jacquelin Case.

Furthermore, since the erection of the railroad commission by the act of 1907 (P. L. 1907 p. 448), I incline to the opinion that all such matters should, in the first instance at least, be submitted to the commissioners for their action—not determining (as, of course, I should not before the point is raised) whether the court has, otherwise, jurisdiction. Certainly, where the state has erected a commission for the express purpose of dealing with just such questions, citizens should be referred, in the first instance at least, to that commission. Whether they have other rights which the courts will enforce, I do not decide, because I am not called upon now to decide that.

1 will advise -a decree dismissing the bill, without costs to either party. The latter qualification is put in by consent of the defendant, who said that it would not insist upon its right to costs.


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    Aaron Harris v. Montague P. Barrett et al.
    [Decided April 14th, 1909.]
    1. One seeking to foreclose a bond and mortgage made to another has the burden of proving that he is the owner of the bond and mortgage.
    2. The court is not bound to accept everything as true a witness may say, and evidence, to be believed, must not only proceed from a credible witness, but it must he credible in itself.
    3. In a suit to foreclose a bond and mortgage, evidence held not to show that complainant is the assignee or rightful owner of the bond and mortgage, defeating a recovery.
    Heard on bill, answer, replication and proofs in open court.
    This is a bill to foreclose a mortgage, and the facts will be stated in the opinion.

      Mr. Samuel G. Cowart (with whom was Mr. Meyers of the New York bar), for the complainant.

      Mr. Benjamin P. Morris (with whom was Mr. Jacobson of the New York bar), for the defendants.
   Garrison, Y. C.

Henry J. Barrett owned a property at Long Branch, New Jersey. On the 31st of January, 1887,-Louise Barrett, his wife, joined in a mortgage to Philip Levy for $2,800, payable in three years, at five per cent, interest. This bond and mortgage were produced in court and claimed to be -owned by Aaron Harris. Harris is a nephew of Barrett. Barrett and his wife did not live happily together and frequently separated from each other for short periods of time.

After one such separation, and' as an element in the reconciliation, Barrett, in June of 1890, conveys this Long Branch property, through a trustee, to his wife.

On the 18th day of October, 1901, Mrs. Barrett secured a decree of divorce from her husband in the supreme court of New York. Alimony at the rate of. $12 per week was ordered paid. He defaulted in his payments, and in 1903 or 1904, was committed to jail in contempt proceedings.

Upon the complainant, of course, rests the burden of proving that he is the owner of the bond and mortgage which he seeks to foreclose. He and Barrett each testify that the mortgage was obtained from the mortgagee, Levy, some time in the year 1888, about eighteen months after its date and about eighteen months before it was due. •

There-is, of course, a very apparent motive or reason for'fixing some perio’d before 1890 as the time when Harris became possessed of the mortgage, because in 1890 the title became vested in Mrs. Barrett, and Barrett could not, of course, as against her, renegotiate the mortgage if it should be held that he had paid it off, and he certainly would not dare suggest that he had paid the mortgage off after that period, because his testimony is that he was constantly at odds with his wife and would not likely pay $2,800 solely for her advantage.

However this may be, they, as a matter of fact, each fix the period when Harris'became possessed of the bond and mortgage as some time between May and July of 1888. They do not agree as to the time, and the testimony of each varies at different times as to the date. They testify that at the time Harris got from a man named Cohen $2,800, in currency and brought it to Barrefct, who took it to Levy and obtained the bond and mortgage, and gave them to Harris, who gave them to Cohen, who held them for twelve or thirteen years and then gave them to Harris.

Excepting the bond and mortgage there is no writing of any kind, sort or description to cast any light upon any portion of the transaction. There is no assignment, no receipts, no letters, no checks, and the entire case depends upon the testimony of witnesses.

The determination of the case, therefore, will depend upon what the court finds to be true from the testimony of these witnesses; and, with respect to whether this mortgage was paid or was purchased, the determination will depend largely, if not wholly, upon the view taken by the court of the testimony of Harris and of Barrett, when tested by itself and by such other slight facts as it was possible to prove in contradiction or opposition thereof.

At the time when they allege that the mortgage was obtained from Levy it had at least half of its life to run; that is, it was not due for about a year and a half. The mortgage drew five per cent., and Harris testifies that the land was worth more than the amount of the mortgage. At that time Barrett was a well-to-do business man. He is shown to have owned the property subject to 'the mortgage, the house in which he and his family lived in New York, three large tenement house properties on the* Bowery in New York, and to have had considerable money besides. Harris was a clothes cutter, working for small wages,, and having absolutely no means whatever.

Both Harris and Barrett allege that Barrett was very much perturbed because this mortgage would be due in a year and a half and he feared that the mortgagee would press him for the money, and that the anticipation of this situation wrought him up to such an extent that he went around a year and a half before the mortgage was due searching for someone to take it up, and being willing, if they would do so, to agree to pay them six per cent, interest instead of five per cent., upon the chance that the person who would take up the mortgage would not press him so vigorously as he feared the mortgagee would. In this state of mind he turns to this impecunious nephew. Harris avers that he thereupon went to an uncle of his wife, named. Cohen, and represented to him that there was this good mortgage for $2,800 at five per cent., which would be raised to six per cent., and that his uncle said that if the property was good he would advance the money, and immediately did so, without making any investigation or inspection or seeking any legal assistance. According to Harris, he obtained the money from his uncle immediately after mentioning the matter to him, and ■there is not the slightest pretense that the uncle employed anybody to see that the mortgage was good, or that the property was worth the money, or, in fact, hesitated long enough to have even considered these matters himself.

Harris thereupon immediately brings the $2,800 thus obtained to Barrett. Harris’ testimony makes it utterly impossible to determine what the relation between Cohen and him was with respect to this money. He refers at times to it as a loan; he says he borrowed the money; again, he speaks of it as money given to him by his uncle; sometimes he says: “He gave me the money,” but does not specify whether that merely refers to the act of handing it over, or whether he means to imply that it was a gift.

His testimony is no more satisfactory with respect to the relationship which he and Cohen held with respect to the bond and mortgage. As to them, he says that he took them immediately upon obtaining them from Barrett, and gave them to Cohen, and that Cohen put them in a trunk and kept them there for twelve or thirteen years. He gives various reasons for his conduct in this respect. At times he said that it was to show his uncle that he was honest; that it was as security for the money; that he took it to his uncle because he had put the money in them and he wanted his uncle to have the papers, and that he took them to Cohen for safekeeping.

After thirteen or fourteen years, for no reason which is given or suggested, Cohen handed the papers back to Harris.

Harris and Barrett aver that from 1888 to 1904, Barrett paid to Harris six per cent, interest on $2,800, in semi-annual payments. When examined separately, Barrett ■ testified that he always obtained written receipts from Harris for each payment of interest made him during all these years. And Harris testified that he never gave written receipts at any time to Barrett. It is quite obvious that this is not a matter about which there could be any honest difference of opinion, or honest failure to remember. It involves thirty-two separate incidents; that is, thirty-two semi-annual occasions upon which a receipt either was or was not given, and, with respect to each one of these thirty-two occasions, Barrett says he obtained a written receipt (all of which he claims to have lost), and Harris avers (without having heard of Barrett’s statement) that he never gave any receipts.

Clearly one of the parties is guilty of false swearing in this important particular, and, in my view, both of them are so guilty with respect to the very matters at issue. I am not able to believe ('and my disbelief is strengthened by the appearance and manner of the witnesses on the stand) that this poorly-paid young clothes cutter obtained $2,800 in currency from his wife’s uncle in 1888, and invested it, without investigation, legal assistance or written papers, in this bond and mortgage, and held them for eighteen or nineteen years without any effort to collect the same—particularly in view of the fact that the only person outside of himself who, as he claims, had any reason to consider was Barrett, and Barrett, after 1890, had no title to this property, and the title was in his wife, with whom he was at odds and from whom, in 1901, he was divorced.

Further, I am utterly unable to believe that Barrett, from 1888 to 1904, continued to pay six per cent, interest to Harris upon this bond and mortgage upon property to which he lost title in 1890, such payments, if made, being wholly in favor of his wife, with whom he was on the outs, and from whom he was divorced, as I have before stated, in 1901.

When we consider that in 1903 or 1904 he was committed to jail for failure to pay the alimony due his wife, and yet claims that during the very period in which he incurred this penalty he was paying interest on this bond and mortgage solely to favor his wife, his story, to my mind, lacks all credibility.

The wife, one of the defendants in this suit, was necessarily limited in her ability to directly meet the testimonjr of Harris and Barrett. She and her sister do testify to conversations in 1888 concerning the payment by Barrett of this mortgage. They swear that at the time’ he was. in possession of considerable money and was talking of how he should invest it, and that his wife's father suggested that he pay off this mortgage, and Barrett told them afterwards that he had done so; and, also, when angry at his wife, referred with bitterness to the fact that he had paid it off. His wife says that this statement was made after he had conveyed the property to her and had quarreled with her and was angry that he had paid off a mortgage, which, if he had not done so, would rest upon property now owned by her, and he would be benefited by having the money instead of having benefited her by its payment.

There is also, some slight evidence of a loan by Barrett to Harris some years after the mortgage was alleged to belong to Harris; and there is uncontradicted evidence that several fires have occurred upon the premises, and that the insurance has been collected by Mrs. Barrett, Harris not having paid any attention to- whether there was insurance on the property or not, and during all of the eighteen or nineteen years that he claims to have owned the mortgage not having paid the slightest attention to the property on which the mortgage was claimed to be a lien.

Harris, who is never shown to have had a dollar in his life, waives all this aside with the statement that $2,800 did not seem much to him, and that accounts for the light way in which he treated this matter. This really is characteristic of his entire testimony, and is a cogent reason, in my mind, for disbelieving him and his entire story. Bluntly stated, I do. not believe his testimony or Barrett's testimony.' I do believe that Barrett paid‘this mortgage off, with his own money, and for some reason, or no reason, did not attend to its cancellation at that time, and that years afterwards, and after he had conveyed the property to his wife and had quarreled with her and desired to injure her, lie handed this bond and mortgage over to his nephew in order that the latter might foreclose the same and either obtain the money out of the land the husband had conveyed to the wife, or take the land away from her by a sale.

As a trier of fact, I have reached the unshaken conclusion that Harris is not a bona, fide holder of this bond and mortgage; that he did not procure the same by assignment from Levy; that he did nob procure the same by the advancement of any money thereon, and that he has no right to hold the same as a valid subsisting lien as against Mrs. Barrett, the owner of the land.

The sole question that I paused to consider after the trial, and upon which I have taken the briefs of counsel, is whether, in view of the fact that Harris and Barrett each swore to, that which would lead to a contrary decision, I was bound to take their testimony upon points which the defendant was not able to contradict. 1 have reached the conclusion that I am not so bound. Without attempting to formulate a doctrine, I find that a trier of facts must be left free to believe or not to- believe testimony which is subject to question.

“The court is not bound to accept everything as true a witness may say. Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself— such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience.” Daggers v. Van Dyck (Vice-Chancellor Van Fleet, 1883), 37 N. J. Eq. (10 Stew.) 132. And see to like effect Elwood v. Western Union Telegraph Co., 45 N. Y. 549 Kearney v. Mayor, &c., 92 N. Y. 617.

When I weigh and test the evidence of these two witnesses, Harris and Barrett, I am utterly unable to believe that either of these two men, situated as they were, could or would have behaved as they testify they did. There is really nothing credible in their testimony about any one important circumstance concerning which they testify. There is nothing credible in Barrett’s suggested reason for desiring to obtain an assignee of the mortgage at the time that he says he sought one, and there is nothing credible in his statement as to the. circumstances under which he got the money from Harris. Harris’s testimony with respect to the important facts is equally incredible. That a poorly-paid, impecunious young man should obtain for the asking $2,800 from an uncle of his wife, and should hand it over to Ms own uncle for a mortgage about which he knew nothing, and should not obtain any writing from the owner of the mortgage to show that he relinquished his ownership or transferred it, and should not have consulted any business man or lawyer concerning the matter, and should have parted with the possession of what he claims was his for twelve or thirteen years, and during eighteen or nineteen years have paid no attention whatever to the real estate upon which the alleged mortgage rested, and should, if he did get interest, not give receipts, and not have any checks, assignments, receipts or other writings of any description concerning the matter, present points of improbability so strong that I was not, at the time of hearing his story, and am not now, after reading it over, able to believe any of it.

And when the motive of these two men at the time that this foreclosure was begun is suggested, I think their whole conduct seems clear.

The opportunity arose when Barrett discovered, after many years, as I believe, that he still had this old bond and mortgage,, which he had paid off either in 1888 or at some later period. He was divorced from Ms wife and had gone to jail at her procurement because he did not pay her alimony. And here was a ■chance to make her suffer either the payment of this money or the loss of the property. There was practically no one so usable in this emergency as this nephew, and to him he gives the bond and mortgage, and through him he seeks to carry out this ■scheme.

I do not find that it is proven that Harris’is the assignee or rightful -owner of this-bond and mortgage, and therefore find that the complainant may not succeed, and will decree accordingly.


author: Leaking, Y. C.

text:
    Lionel C. Simpson Plumbing and Heating Company v. Edward Geschke.
    [Submitted February 5th, 1909.
    Decided February 21st, 1909.]
    1. A letter written by complainant to defendant, containing- a memorandum of an oral contract between the parties, which was not adopted by the parties as their contract, will not be reformed by correcting an error therein made in dictating the letter to a stenographer, and-its use as evidence restrained in an action on the contract until reformed.
    2. A written instrument cannot take the place of and supersede a parol contract, until the writing has been mutually adopted by the parties as an instrument embodying the terms of the agreement.
    On bill for injunction. On motion to dismiss.
    The bill avers that complainant agreed to supply the labor and material for certain plumbing in nine houses for defendant at the price of $265 per house, and entered upon the work pursuant to the agreement; that thereafter defendant 'asked complainant to furnish him with a written memorandum of the contract price for the purpose of enabling defendant to fie it with his papers; that complainant accordingly supplied the memorandum in the form of a letter and through error in dictation to a stenographer stated $165 per house as the price for the work, which amount is less than the actual cost of the work.; that the error was not discovered by complainant until after the work was completed and settled for bjr defendant at the lower rate; that failing thereafter to induce defendant to pay the correct amount complainant brought suit at law for the balance due; that the suit at law is being defended and defendant proposes tó use the letter referred to by way of defence to the pending legal action. The bill seeks a reformation of the letter and an injunction against its use in its present form as a defence to the action at law.
    Defendant moves against the bill for want of equity.

      Mr. Ralph W. M. Donges, for the motion.

      Mr. Howard L. Miller, opposed.
   Leaking, Y. C.

It seems clear that under the averments of the bill no relief can now be granted of the nature sought.

The contract between the parties, under which the work was performed, was a parol contract. The letter, reformation of which is sought, formed no part of any contract between the parties, but was a letter written by complainant, at the request of defendant, after the contract between the parties was complete and work under the contract was in progress, to enable defendant to file, it among his papers as a written memorandum of the contract already entered into. The bill does not aver that the letter in question was ever adopted by defendant, through mistake or otherwise, as the contract between the parties. Before a letter or other written instrument can be properly treated as a contract between the parties which will be effective to take the place of and supersede a parol contract, it should at least appear that the writing has been mutually adopted by the parties as an instrument embodying the terms of the agreement. The letter, according to the averments of the bill, is but an erroneous expression pf complainant’s recollection of the terms of the parol agreement. Under the facts stated in the bill the letter can only be utilized by defendant in the law court as evidence tending to corroborate defendant’s claim of the terms of the parol contract. Under such circumstances I am unable to discern any disability of the law court which will prevent as full and adequate an inquiry into the facts to ascertain the exact terms of the parol agreement as can be afforded in this court.

If, on the other hand, the bill averred that the letter in question was a written instrument which had been mutually determined upon or adopted by the respective parties as embodying the substance of their agreement, and that through mutual mistake or through mistake upon the part of complainant and fraud or inequitable conduct upon the part of defendant the written instrument erroneously stated the terms of the agreement actually made, the intervention of this eonrt for reformation of the instrument would seem appropriate.

I am obliged to advise an order allowing the motion of defendant.


author: Leaking, V. 0.

text:
    Annie A. Redrow v. J. Katherine Sparks et al.
    [Argued March 22d, 1909.
    Decided March 22d, 1909.]
    1. If a paragraph of an answer praying' the benefit of a demurrer is immaterial to the case, it will be deemed impertinent and may be stricken out on motion.
    2. A paragraph in an answer to a cross-bill cannot be treated as a demurrer to the sufficiency of the cross-bill, where it fails to comply with P. L. 1902 p. 518 § 22, requiring- demurrers in chancery to have annexed thereto an affidavit that it is not interposed for delay, and a certificate that the demurrer is well founded.
    3. When a bill is insufficient on its face to support equitable jurisdiction or relief, it should be demurred to, though defendant may answer; but, if on final hearing the bill is found insufficient, costs may be denied him through his failure to demur, and in that manner avoid the necessity of a hearing.
    4. Equity can enforce a legal right the existence of which is clear and not in substantial dispute, but not where it appears that the legal right is not clear either through substantial dispute touching the facts on which it is based, or uncertainty touching the legal rules under which the right is claimed.
    5. Prayer, in an answer, for the benefit of a demurrer for the want of equity jurisdiction, is proper where the answer and final hearing is necessary to accurately determine the question of jurisdiction.
    6. Defendant cannot answer and demur to the same part of a bill.
    7. On bill to foreclose a purchase-money mortgage made by defendant, equity has jurisdiction of a cross-bill to rescind the contract of purchase, for complainant’s fraud in inducing it.
    8. Complainant sues to foreclose a purchase-money mortgage. Defendants filed a cross-bill to rescind the contract of purchase for complainant’s fraud in misrepresenting that she had a marketable title. Complainant answered the cross-bill, denied fraud, and prayed the benefit of a demurrer because of an adequate remedy at law.—Held, that the answer was proper pleading, since, on cross-complainant’s failure to establish the fraud, equity jurisdiction would fail because of a remedy at law on the covenants in the deed.
    On. motion to strike ont part of answer.
    The bill is filed to foreclose a purchase-money mortgage made-by defendants to complainant. Defendants have filed a cross-bill in which they state that the premises in question were conveyed to them by complainant, and that the purchase-money mortgage was executed by them to complainant as stated in the bill, but aver that complainant was at the date of the conveyance without a marketable title to the land so conveyed, and also that a mortgage existed against the land at the date of the conveyance-to defendants; and that complainant, well knowing the existence of the mortgage and defective title, fraudulently represented to defendants that her title was perfect and marketable and unencumbered with a purpose to induce defendants to take title without an examination of the records, and that by reason of such fraudulent representations defendants accepted the conveyance- and executed the purchase-money mortgage in question and the-bond which the mortgage secures, and paid to complainant the balance of the purchase price by conveying to complainant a certain other tract of land. The cross-bill prays that the bond and mortgage so executed to secure the payment of a part of the purchase price may be canceled, and that the tract of land which was conveyed to complainant in payment of the remaining part of the-purchase price may be roconveyed to defendants, and that defendants may be permitted to reeonvey the mortgaged premises to complainant. Complainant’s answer to the cross-bill denies the misrepresentations and fraud set forth in the cross-bill, and denies any knowledge of the prior mortgage or defects in title. The answer to the cross-bill also contains a paragraph asserting, that all matters in the cross-bill mentioned and- complained >>1 are matters which may be tried and determined at law, and with respect to which the cross-complainant is not entitled to Vny re: lief in this court, and prays the benefit of that defence to the.- same extent as though the cross-bill had been demurred to.

      Cross-complainant now moves to strike out that paragraph of the answer to the cross-bill which prays the benefit of a demurrer.

      Mr. Joseph J. Summerill, for the motion.

      Mr. G. Dore Cogswell, opposed.
   Leaking, V. 0.

If the paragraph of the answer praying for the benefit of a demurrer, against which the present motion is directed, cannot be regarded as material to the case under any possible circumstance or contingency, it will be deemed impertinent and may be stricken out. Story Eq. Pl. § 863. It is manifest that the paragraph in question cannot be treated as a demurrer which is filed to test the sufficiency of the 'cross-bill, for it fails to comply with the provisions of our statute touching demurrers. P. L. 1902 p. 518 § 22. There are, however, instances in which advantages have been extended to or denied defendants by reason of the existence or non-existence,of a paragraph in the answer praying for the benefit of a demurrer; and such examination of the authorities as I have been able to make leads me to the conclusion that such a paragraph may or may not be regarded as material by reason of special circumstances which may or may not enter into individual cases. When a bill is insufficient on its face to support equitable jurisdiction or relief it should be demurred to. Defendant may in such case answer, but if on final hearing the bill is found insufficient, costs may be denied to defendant by reason.of his failure to demur, and in that manner avoid the necessitjr of a hearing. Dan. Ch. Pl. & Pr. 542. Cases may arise, however, in which the jurisdiction of a court of equity can only be accurately measured by the ascertainment of matters which may be appropriately contained in an answer. Thus, a court of xequity has jurisdiction to enforce a legal right, the existence of which is clear and not in substantial dispute; but the jurisdiction iails when it is made to appear that the legal right is not clea\r, either by reason of substantial dispute touching the facts on which it is based or uncertainty touching the legal rules on which'the right is claimed. In cases of that class an answer and \ \ final hearing may be necessary to accurately determine the question of jurisdiction. The propriety of a prayer in an answer, in a case of that nature, for the benefit of a demurrer for want of equitable jurisdiction is manifest, and has been recognized by our court of errors and appeals in Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507, 513, and in Outcalt v. Helme Company, 42 N. J. Eq. (15 Stew.) 665, 667. In the former case, the bill was retained while legal title could be established at law, because no denial of jurisdiction was asserted by the answer; in the latter case, the bill was not retained because defendant had asserted, by his answer, the want of jurisdiction. In Dan. Ch. Pl. & Pr. 715, the following statement is made:

“■Where the same benefit has been claimed, by answer, that the defendant would have been entitled to if he had demurred to the bill, or pleaded the matter alleged in his answer in bar, it is only at the hearing of the cause that any such benefit can be insisted upon; and then the defendant will, in general, be entitled to the same advantages of this mode of defence that he would have had if he had adopted the more concise mode of defence, by demurring or pleading.”

The special circumstances giving the privilege of this mode of defence in lieu of a plea are referred to by the author above quoted (at p. 714); no reasons are given in support of the practice in lion of a demurrer. But Wray v. Hutchinson, 2 My. & K. 235, and Milligan v. Mitchell, 1 My. & C. 446, cited in support of the text above quoted, disclose the special circumstances under which the practice was approved. In the former case, the amended bill was demurrable, but contained scandalous matter which defendant desired to answer; defendant accordingly answered and prayed the benefit of a demurrer. On dismissal of the bill costs to defendant were resisted because defendant had answered and had not regularly demurred. By reason of these peculiar circumstances of the case, costs were allowed to defendant. Milligan v. Mitchell was decided on authority of Wray v. Hutchinson. The other cases in this state which have been brought to ray attention touching this subject are Gifford v. Thorn, 7 N. J. Eq. (3 Halst.) 90, 97; Reed v. Cumberland Insurance Co, 36 N. J. Eq. (9 Stew.) 146, 152; Bennett v. Bennett, 63 N. J. Eq. (18 Dick.) 306; Veghte v. Raritan Water Power Co., 19 N. J. Eq. (4 C. E. Gr.) 143, 145. In the latter ease, Chancellor Zabriskie, after defining the well established rule of equity pleading to the effect that a defendant cannot answer and demur to the same part of a bill, and that the answer overrules a demurrer, says: “This rule would be nugatory if the answer could in all cases state the objection, and pray the same' advantage as if taken by demurrer. The whole bill, or any part of it, could in this way be demurred to in an answer.”

I am convinced that the practice which is challenged by the present motion cannot be properly sustained unless some special circumstances of the case are found to justify it. In the present case, the cross-bill is clearly self-sufficient. It seeks the rescission of a contract made by the parties and the restoration to them of their original properties. The ground of the relief sought is that cross-complainant was fraudulently induced to enter into the contract. This court has jurisdiction to entertain such a bill and to' administer complete relief if the fraud is established, even though a remedy at law may exist. Hubbard v. International Mercantile Co., 68 N. J. Eq. (2 Robb.) 434; Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 264, 269; 1 Story Eq. Jur. § 208. But the answer to the cross-bill denies the misrepresentations and asserts that no prior encumbrance or defect of title was known to complainant. If cross-complainant should fail at the hearing to‘ establish the fraud alleged, equity jurisdiction would be lost in a case of this nature, because of the remedy at law on the covenants in the deed of conveyance. As the objection to jurisdiction on the ground of an adequate remedy at law is an objection which should be in some form asserted by a defendant (Gifford v. Thorn, supra), I think that the peculiar circumstances of this case referred to fully warrant the practice which the pleader has adopted of inserting in the answer in connection with the denial1 of fraud the prayer for the benefit of a demurrer by reason of an adequate remedy at law.

I will advise an order denying the motion to strike out.


author: Beaming, Y. C.

text:
    Harry M. Nathan et al. v. Wilbert M. Bacon et al.
    [Submitted February 26th, 1909.
    Decided March 4th, 1909.]
    1. On a bill for closing the affairs of a partnership admittedly dissolved, a receiver will be appointed only when it appears necessary to protect the interests of the parties.
    2. At the dissolution of a partnership, the powers of the partners over the assets continue only so far as is necessary to wind up the firm affairs.
    3. Where some of the members of a partnership upon dissolution hold possession of all the assets, and conduct the business under claim of sole ownership, and not for the purpose of winding up the firm affairs, unwarrantably assuming power under the partnership agreement to have the assets appraised and extinguish the other members’ interest in the assets by tendering them one-third of the amount of the appraisement, the other members of the firm are entitled to a receiver to wind up the affairs.
    On bill for receiver of a partnership and an accounting.
    The bill is filed by two of the four partners who comprise a commercial copartnership with its place of business at Bridgeton, New Jersey, and seeks the appointment of a receiver to wind up the business and also an accounting by the two defendant partners, who are in possession of the assets of the business. The controversy between the parties arises from the fact that defendants claim that the partnership terminated February 1st, 1909, under the terms of the partnership agreement, whereas complainants claim that the partnership agreement contemplates the continuance of the partnership until September 26th, 1910. The bill sets forth that the partnership was originally formed February 1st, 1904, pursuant to a written partnership agreement, a copy of which is attached to the bill. By the terms of that agreement the partnership was to continue for a period of five years from that date. The bill further avers that on September 26th, 1905, a new written partnership agreement was made wherein it was provided that an additional line of merchandise should be added to the business and that the partnership should continue for five years from that date. A copy of that agreement is also annexed to the bill. Defendants claim that the provision in the later agreement for the partnership to continue five years from its date was intended to refer lo a period of five years from the date of the first agreement. The two agreements are practically identical except as to the added scope of the business to be engaged in as contained in the later agreement. By the terms of the partnership agreement defendants were to be the active partners and were to have the entire management and control of the business and were to draw from the profits of the business a weekly stipend for their services. Complainants had no duties to perform except to contribute a specified amount to the capital. The respective partners have fully complied with all of the terms of the agreement up to February 1st, 1909. Complainants’ interests in the partnership are one-sixth each and defendants’ interests are one-third each. The agreement contains no provision touching the manner in which the partnership business shall be closed out at the expiration of the term. On December 11th, 1908, defendants, by letter, notified complainants that as the partnership would expire February 1st, 1909, and be then, dissolved, they would begin preparation for dissolution by reduction of stock and collection of debts, and beginning January 20th, 1909, they would take account of stock and otherwise prepare for a full and complete severance of partnership relation, and invited complainants to co-operate. On January 23d, 1909, defendants by another letter notified complainants that stocktaking had commenced pursuant to the former notice and would be resumed January 26th, 1909, and that unless complainants appeared, three disinterested appraisers would be appointed by defendants to take stock, commencing January 27th, 1909. Complainants protested against the proposed course of defendants and demanded a continuation of the partnership pursuant to the terms of the partnership agreement until September 26th, 1910, which date complainants claim to be the date for the termination of the partnership. Defendants, however, completed the inventory of assets as proposed and forwarded a copy to complainants and a certified check for complainants’ interest as ascertained by the appraisement, and notified complainants that they would no longer be recognized as having any interest in the partnership. The check was returned by complainants with a notice that they protested against the action of defendants and insisted upon a fulfillment of the partnership agreement until the end of the term. Since February 1st, 1909, defendants have been conducting the business as their own under claim of sole ownership by reason of the tender of the certified check referred to-
    The bill asserts that by reason of the foregoing facts'the co-partnership is dissolved and that complainants are entitled to an accounting of the assets and profits that have accrued and which would hereafter have accrued during the balance of the term, and seeks the appointment of a receiver to close out the business, and the issuance of an injunction against further acts-of defendants.
    The cause has been heard at the return of an order to show cause on bill, answer and cross-bill and affidavits.

      l\Ir. William T. Boyle, for the complainants.

      Mr. Walter 11. Bacon, for the defendants.
   Beaming, Y. C.

Tire only question for determination at this time is whether a receiver should be appointed to take possession of the assets of the business. Should a receiver be appointed the injunction which complainants seek would appropriately accompany the order appointing the receiver.

The partnership in question is now at an end so far as the future prosecution of the partnership business as such is concerned. This is admitted by both complainants and defendants. Defendants assert that it is at an end by the expiration of the term agreed upon for its continuance; complainants assert that it has been dissolved by reason of defendants-’ conduct. It has been held in some states that on a bill for closing the affairs of a partnership, when it is admitted that the firm has been dissolved, the appointment of a receiver follows as a matter of course; but in this state that rule has not been adopted. It has here been repeatedly held that in such case a receiver will be appointed only when it appears necessary to protect the interests of the parties. Renton v. Chaplain, 9 N. J. Eq. (1 Stock.) 62; Birdsell v. Colie, 10 N. J. Eq. (2 Stock.) 63; Cox v. Peters, 13 N. J. Eq. (2 Beas.) 41; Randall v. Morrell, 17 N. J. Eq. (2 C. E. Gr.) 343; Warwick v. Stockton, 55 N. J. Eq. (10 Dick.) 61, 67. I am convinced, however, that in this caso the' appointment of a receiver is necessary to properly protect the interests of the parties. At dissolution the powers of the partners over the partnership assets continue only so far as is necessary for the purpose of winding up the affairs of the-partnership. Defendants are now in possession of all of the assets and are conducting the business under claim of sole-ownership and not for the purpose of winding up the partnership affairs. They are proceeding upon the assumption that it was their right, at the end of what they conceived to be the partnership term, to have the assets appraised and to extinguish the interest of complainants by tendering'to complainants one-third of the amount of the appraisement. They thus assumed the power to compel complainants to sell to them for that amount. There is nothing in the partnership agreement or in the nature of the partnership which confers upon defendants any such privilege. In this unfortunate situation I can see no way to fully protect the interest of the parties without the-appointment of a receiver to wind up the affairs of the business..

I will advise an order for the appointment of a receiver and for the issuance of- an appropriate injunction to secure to the receiver complete control of the assets.