author: Backes, V. C.

text:
    John H. Winslow v. Leverett Newcomb.
    [Submitted March 13th, 1917.
    Decided March 27th, 1917.]
    1. Covenants for a general community improvement scheme of building restrictions create an equitable servitude enforceable by owners against grantees who took with notice.
    2. In a bill for mandatory injunction to remove buildings erected in violation of such restriction—Held, that defendant had knowledge of and was bound by such restriction, although not incorporated in his deed.

      3. Proceedings to protect sucb restrictions must in equity be taken before there is a serious expenditure of money, and where complainant daily observed a construction of a building contrary to such restriction begun in September, a bill filed in January is too late.

      4. That a number of dwellings out of about two thousand violate such restrictions, that does not evince an abandonment relieving grantee's from observance of the restrictions.
    5. Where community building restrictions contemplate open porches nearer than twenty feet to street line, overhanging open porches and bay windows extending closer than twenty feet to the street cannot be regarded as infringements.
    On pleadings and proofs.

      Mr.. S. Webster Hurd and Mr. John Boyd Avis, for the complainant.

      Mr. Lewis Starr, for the defendant.
   Backes, V. C.

This bill prays for a mandatory injimction to remove buildings erected in violation of a building restriction. In the early sixties, Charles K. Landis, the owner of the “Great Vineland Tract,” in Cumberland county, laid out what is now the borough of Vineland, plotted the same into streets and building lots,- and adopted a uniform and general building scheme requiring, inter alia, all houses to be set back twenty feet from the street line. The lots were conveyed by deeds of general warranty, in which no mention or reference was made to the restriction. Landis had his own peculiar methods. When he sold lots on the installment plan, he entered into what he termed a “Bond of Agreement,” with the purchasers, wherein for the stated consideration price, and the purchaser “complying with the covenants hereinafter stipulated,” he agreed to sell the described lot, and the purchaser on his part agreed to plant shade trees, erect on the lot a habitation within one year, fence the lot (if at all) with a certain kind, and whitewash or paint it, and keep the sidewalk clear of underbrush and rubbish, “houses to be at least twenty feet from the side of the road,” the side of the road to be plowed and seeded within two years. Contemporaneously, with the delivery of the deed, upon fulfilling the terms of the bond of agreement, or when a sale was not upon deferred payments, Landis exacted a written contract from the grantees, wherein the latter stipulated that the property had been purchased with the understanding, as part of the consideration of 'said purchase, that' they would observe the general improvement scheme, each item of which was repeated substantially in the language of the bond of agreement. The papers are crude and inartificial, but, nevertheless, record unmistakably the community scheme. The documents were kept by Landis and those wh.o succeeded liim-until the enterprise came to an end, when they were lodged in the archives of the Vineland Historical Society—some one thousand five hundred in all. The borough now contains, approximately, two thousand buildings, chiefly residential, and all except five or six are erected in conformity with the regulation. In two or three instances the invasions were accidental. Compliance with the tree planting and other requirements has added much to the tone of the town Landis avenue is the main thoroughfare, part of which is devoted to business. The defendant, Newcomb, owns the piece of land at the southwest corner of Landis avenue and Seventh street, on which is, and for years has been, erected a store building, set back from the streets the required distance. The complainant, Winslow, owns the lot facing on Seventh street, immediately adjoining the defendant’s in the rear, on which his-home is built, and which, like all others on that street, sets back twenty feet. Adjoining his store building, and between it and Seventh street, the defendant, at a cost of $1,500, has erected a one-story glass enclosed building, twelve feet wide, by thirty-eight feet in depth, with a second-story extension in the roar, of the same width and sixteen feet in length, enclosed and windowed, reaching almost the height of the adjacent building. This structure shelters an outside stairway leading to the second floor of the store building, the upper portion of which is used as a landing for the stairway and the lower portion usable for a fruit stand, or like occupation. Eliminating the second-story extension, it is somewhat similar to a stand erected on the opposite corner and one at the corner of Sixth and Landis, the difference being that this'one has a concrete foundation and is more substantial and of a permanent character. On the rear portion of his lot, eleven feet from the complainant’s dwelling and within fifteen feet of the street line, the.defendant put up an unsightly one-story enclosed shed, twelve feet wide by twenty-six feet iu length, completely shutting off the complainant’s view to the northward. The restricted area includes the twenty feet from the side of Seventh street, as well as that given space on-Landis avenue. Chelsea Land and Improvement Co. v. Adams, 71 N. J. Eq. 771; Henderson v. Champion, 83 N. J. Eq. 554. Both structures are, undoubtedly, infractions of the common scheme and of the covenant entered into by the defendant’s predecessor in title, Mrs. Gifford, the original grantee of Landis. Samuel Gifford purchased lots 11 and 12 of block 26 of the easterly district of the town plot of Vineland (defendant’s lots), November 3d, 1863, for $200, payable in installments, and executed a “Bond of Agreement” on that day. On May 21st, 1864, Landis conveyed the lots to Hannah M. Gifford, who on that day executed the agreement demanded by him of all purchasers, as already related. It is observed that neither Samuel nor Hannah M. Gifford personally executed the agreements. They were signed “per C. Chester Gifford,” the husband of Hannah.. What relation Samuel bore to either does not appear, but I assume- that the purchase was made in his name for Hannah, her husband acting as agent in the transaction, and that she took the title subject to the burdens entailed by the agreements.

. The- covenants, in so far as they concern the location of buildings as a part- of the community scheme, created an implied equitable servitude on her lots in favor of the other lot owners, binding upon her grantees, direct and remote, who took with notice and enforceable upon the principle of preventing one having knowledge of the just rights of another from defeating such rights. Brewer v. Marshall, 19 N. J. Eq. 537. As part of a general improvement scheme, such agreements have been repeatedly enforced in this court at tire instance of other lot owners. DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, and the line of authorities citing this case in Shepard’s Annotations.

The agreement is not a whit less enforceable because the restriction was not incorporated in the deed. The practical utility of embodying it in the eonvej'ance naturally Commends itself, but it is not essential if notice is otherwise brought home to the parties sought to be bound.- Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Wootton & Dynes v. Seltzer, 83 N. J. Eq. 163; affirmed, 84 N. J. Eq. 207. Nor, as was suggested, rather than argued, was the “Bond'of Agreement” necessarily merged in the deed. 13 Cyc. 617. But'that point need not be decided, because the restriction was reiterated in the agreement made contemporaneously with the deed.

The question to be determined then is: Did the defendant purchase with notice, actual or of such circumstances which upon reasonable inquiry would have informed him of the situation? He denied having any knowledge or information whatever of the agreements and, admitting that he made no .inquiry, explained that he assumed that section 17 of the act establishing the township of Landis (P. L. 186k p. 180), which provides, among other things, that it shall be within the power of the township committee to make it unlawful “to build any house, barn or other out house nearer than twenty feet of the side of any street or avenue in the town plot of Vineland as recorded in the clerk’s office at Bridgeton,” was responsible for the rigid adherence to the twenty-foot line by the inhabitants of the borough. His positive denial is not at all satisfactory,; nor does his explanation appeal to me as sincere. Nearly fifty years ago, when the town was in its infancy, the defendant moved to Vine-land, studied law in the office of Mr. Landis’ counsel, was admitted to the bar in 1870, and has practiced his profession there ever since. During that time Mr. Landis, in developing. his enterprise, gave great prominence and notoriety to the restrictions, in pamphlet form and local newspapers. It is remarkable, if true, that of the sixteen and more exhibits distributed far and wide by the thousands, shown to the defendant at the hearing, he never, as he said, saw any. It is also inconceivable that he did not gain a knowledge of the agreements while in the office of his preceptor, or that they did not come to his notice at some and ofttimes while he was engaged in active practice and in intimate and close association with the lot holders of this small and slow-growing community. The defendant is now advanced in 3rears, and it is possible that he has forgotten, but this impairment of memory, if that is the case, did not relieve him from making inquiiy, and inquiry of almost any of his fellow-citizens, especially of the older and prominent men of the town who, in their earlier da3^s aided Landis in his promotion, would have readily led to the source of knowledge. The uniformity of the house lines was sufficiently attractive to stimulate a failing memory and to put the defendant on his guard, and he must be held charged with notice of that which reasonable inquiry would have furnished. An examination of the official records of title in the clerk’s office, was not a conclusive investigation under the circumstances. Nor can it be contended with any degree of plausibility that the defendant was misled into a conviction of security and confidence, and was thus absolved from further inquiry, by the legislative act above referred to. That statute simpty gave the township, out of which the borough of Vineland was later formed, power to regulate, which power was never exercised by the borough; and this to the knowledge of the defendant. The burden of proof that he was a bona fi\de purchaser for value, without notice, and that the mesne holders of the title occupied a like position, is upon the defendant, and this burden he has not sustained. Murray v. Ballou, 1 Johns. Ch. 566; Jones v. Thomas, 3 P. Wms. 244; 24 Eng. Reprint 1046; Atlantic City v. New Auditorium Pier Co., 67 N. J. Eq. 610.

While I hold that the terms of the agreements were obligatory upon the defendant, it does not follow that they are to be enforced against him. The work on the concrete foundation of the fruit-stand building was begun.in September of 1915, and the superstructure in the early part of November, and completed on the 8th day of January following. The bill in this case was filed January 12th, 1916. During that time the complainant daily observed the progress of the building without interference, and it is now too late to hear his complaint. The rule applied in equity is that to protect restrictive building covenants, legal proceedings must be taken before there has been a serious expenditure of money. Smith v. Spencer, 81 N. J. Eq. 389. The shed was commenced the day before the bill was filed, and its completion hastened. The complainant acted with promptness, and as to it he is entitled to relief.

Quite a number of dwellings have overhanging open porches, and some have bay windows extending into the prohibited area, which, it is contended, are in violation of the building regulation and relieve the defendant from an observance of the restriction. The few bay windows do not evince an abandonment (Righter v. Winters, 68 N. J. Eq. 252; Morrow v. Hasselman, 69 N. J. Eq. 612), and as, in the formulation of the building scheme, open porches were doubtlessly contemplated, and, inasmuch as the restriction has been thus, almost universally, interpreted and acted upon, they cannot be regarded as infringements. Ocean City Land Co. v. Weber, 83 N. J. Eq. 476; affirmed, 84 N. J. Eq. 505.

The complainant is entitled to a mandatory injunction in accordance with these views, with costs.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Charles H. Holcombe, receiver of the New Jersey Steel Company, v. James McE. Ames et al.
    [Submitted March 17th, 1917.
    Decided March 28th, 1917.]
    Joint liability imposed by law on directors who authorized and approved payment of dividends when there was no surplus or net profits, they being joint tort-feasors, and the relief to which complainant is entitled being a money decree against all of them, there is no separable -controversy as to non-resident directors so as to authorize removal of a cause under the United States statute.
    On petition for removal of cause.

      Mr. Scott Scammell, for the complainant.

      Mr. J. FitMan Taiem, for the defendants.
   Backes, Y. C.

The receiver of the New Jersey Steel Company filed his bill against the former directors of the company, eleven in number, setting up that during their administration they authorized and approved payments of dividends to the holders of the preferred stock of the defunct company,- aggregating $75,250, at times when there was no surplus or net profit arising from the conduct of the business of the company, in willful and negligent violation of the provisions of section 30 of “An act concerning corporations (Revision of 1896),” Comp. Stat. p. 1592, 'as amended by chapter 143 of the laws of 1904. P. L. 1904 p. 275. The prayer is that the directors “be decreed jointly and sevérally to pay the full amount of the said dividends.” The section of the act referred to prohibits directors of a corporation from paying dividends except from the surplus or from the net profits arising from the business of the corporation, and imposes a joint and several liability upon them for any willful or negligent violation, which in case of insolvency is enforceable by the receiver to the full amount of any loss sustained, by the corporation by reason of such division. Two of the director-defendants are residents of this state; the others reside elsewhere, one of whom is George D. Boughton, who has filed his petition, together with the usual bond, setting up the diverse citizenship of the complainant and nine of the defendants; that he is a citizen of -the State of Pennsylvania; and that the suit presents a separable controversy as to him. The petition prays for an order removing the cause into the federal court for this district, pursuant to section 1010 of the revised statutes of the Hnited States, as amended January 20th, 1914. 1 U. S. Comp. Stat. 1916 p. 841. The complainant disputes the separability of the action. The question here presented was disposed of adversely to the contention of the applicant, by this court, hi the case of National Docks Co. v. Pennsylvania Railroad Co., 52 N. J. Eq. 58; affirmed, 52 N. J. Eq. 590, in which Vice-Chancellor Van Fleet held upon authorities cited that the complainant has a right to have the question decided by this court, and that the state court is not required to let go its jurisdiction until a case is made which, upon its face, shows that the defendant asking for removal can remove the suit as a matter of right; that to justify the removal of a suit, bn the ground of a separate controversjr between citizens of different states, there must be a controversy which is wholly between the plaintiff and the defendant seeking to remove, and which is capable of being finally determined between them, and complete relief afforded as to the separate cause of action, without. the presence of others originally made parties to the suit; and that in deciding whether or not a separable controversy exists between the plaintiff and the defendant claiming the right to. remove, the cause of action alleged in the plaintiff’s pleading must be accepted as the only criterion of the decision, and if i,t is there alleged that the cause of action is joint, and if it appears that some of the defendants are citizens of the same state with the plaintiff, it must be held that the suit is not removable. That case is controlling.

.• The statute imposes a joint, liability upon all of the directors and, according^, the bill'charges them jointly as tort-feasors. As the relief to which the complainant is entitled is a money decree against all of the directors, which relief obviously, could not;be afforded in a prosecution against the applicant alone, it is-manifest that the controversy is not separable. The motion to remove is denied, with costs.


text:
    Samuel Polkowitz v. James J. Nash et al.
    [Submitted March 27th, 1917.
    Decided March 30th, 1917.]
    1. The characterization of a person as trustee for another in the premises of a deed of gift impresses such equitable estate upon the title and was notice thereof.
    2. A deed executed by such trustee was abortive and is a cloud upon the title which may be set aside upon equitable terms at the instance of the cestui que trust.

    3. The cestui que trust may elect to surrender his estate and affirm the deed upon payment of fair compensation.
    Oil bill, &C.

      Mr. John P. Kirkpatrick, for the complainant.

      Mr. Martin B. Stutsman, for the defendants.
   Backes, V. C.

This is a bill to quiet title, and the controversy is before the court on this state of facts. -Daniel Hallaban intending to make a gift to his grandson, James Nash, Jr., on April 22d, 1902, conveyed the land in dispute, situate on New Brunswick avenue, Perth Amboy, to James J. Nash, “Trustee for James Nash, Jr.,” so styled in- the premises of the deed. The grant was to James J. Nash, his heirs and assigns; habendum to him, his heirs and assigns, to the proper use, benefit and behoof of him, his heirs and assigns. On June 26th, 1905, James J. Nash, as trustee for Janies Nash, Jr., conveyed the property to the complainant and others for the consideration of $4,500. The “others” later conveyed it to the complainant. Believing that lie had an indefeasible estate, the complainant expended $16,000 and upwards in erecting a store-building on the land. On seeking a mortgage loan thereon from a trust company, his title was questioned. He thereupon tiled this bill. James Nash, Jr., at the time of the gift from his grandfather, was a minor of tender years and knew nothing of it until after service of process in this suit. He has in no manner acquiesced in or confirmed the conveyance made by his father since arriving of age. The consideration price paid by the complainant has been squandered by the father, who is now insolvent. In his counterclaim, Nash, Jr., prays that the complainant’s conveyances be set aside, and that the title to the premises be declared in him, or, in the alternative, that the value of his interest be ascertained and the complainant ordered to pay the same to him. James J. Nash held the legal estate in fee, upon a simple and naked trust to convey it to Nash, Jr., or to such others as he should direct. Brown ads. Combs, 29 N. J. Law 37; Cooper v. Cooper, 36 N. J. Eq. 121. The characterization of the grantee as “trustee for James Nash, Jr.,” in the premises of the deed of gift, impressed the equitable estate upon the title and was notice thereof, which the complainant cannot escape. Gaston v. American Exchange National Bank, 29 N. J. Eq. 98; Aller v. Crouter, 64 N. J. Eq. 381. The effort of the trustee to convey the land to the complainant was abortive, and the deed, as a cloud on the title, may be set aside upon equitable terms at the instance of the cestui que trust. He has, however, elected, and in this the complainant has acquiesced, to surrender his estate, upon the payment of fair compensation. The property has a frontage of fifty-two and seventy-six hundredths feet, and from the evidence produced before me, I am of the opinion that the fair market value, at this time, is $100 a front foot.

A 'decree may be entered quieting the complainant’s title, and sustaining the deed, made by the trustee, as a conveyance in fee of the legal and equitable estate, presently confirmed as such by the cestui que trust. And let it be further decreed that the complainant pay to the defendant, James Nash, Jr., the sum of $5,276, to be imposed as a lien upon the land and to be executed by a sale thereof, unless it is paid within thirty days. No costs.


author: Baokes, V. C.

text:
    Edward P. Lupfer & Frederick N. Remick, partners, &c., v. The Board of Chosen Freeholders of the County of Atlantic et al.
    [Submitted April 10th, 1917.
    Decided April 21st, 1917.]
    1. A provision in specifications for building a bridge which characterized as liquidated damages cheeks deposited by the bidders, is in the nature of a penalty, to be strictly construed, and works a forfeiture only if the contract is lawfully ¿warded and wrongfully declined.
    2. A proposal not in harmony with the plans and specifications cannot be accepted.
    3. In an action by successful bidders to recover a deposit, complainants are not estopped from setting' up the invalidity of the award.
    4. Where the award was unlawful because the proposal varied from the specifications, there could be no forfeiture of- the deposit.
    5. In such case there was no implied agreement to .modify the proposal to comply with the specifications.
    6. A successful bidder cannot arbitrarily withdraw his bid at any time before acceptance. Such bid is in the nature of an option giving the municipality a vested right of contract
    7. Where no time was specified for acceptance of bids, after an unreasonable delay in executing the contract, the successful bidder may withdraw his bid.
    8. Such delay does not amount to an extension of time for executing such contract, where it appears that the successful bidders persistently endeavored to secure a contract corresponding to their proposal.
    . 9. Where for about three months the counties refused to comply with the demands of the bidders to execute such a contract, during which time the price of labor and materials greatly increased, the bidders are entitled to relief on equitable principles.
    On bill, &c.

      Mr. Auguste Boche, Jr., for tlie complainants.

      Mr. Enoch A. Higbee and Mr. James Mercer Davis, for the defendants.
   Baokes, V. C.

The counties of Atlantic and Burlington advertised for proposals for the building of a highway bridge spanning Mullica river on the Ocean boulevard, joining the. two counties. The complainants’'proposal was accompanied by a certified check for $5,000 as a good faith that they would sign the contract upon the acceptance of their bid. Their bid was the lowest, and upon an alleged award of the contract, and a default by the complainants, the counties declared the check forfeited. This suit is to invalidate the forfeiture and to recover the money.

The proposed bridge was to be of the modern steel structure type, of four fixed spans with a bascule span in the centre, electrically operated, to permit navigation, supported by steel enclosed concrete piers resting upon wooden piles sunk into the bed of the river. The plans furnished by the counties illustrate the stationary portion of the bridge only and indicate that the piers supporting the bascule span, of oblong shape, were to be set in the stream transversely and seventy-four feet apart from centre to centre, which distance was to be the length of the bascule span. Concerning the bascule span, the specification'provided that—

“Each bidder will submit detailed plan and specifications of one, or more, kind of two-leaf, deck, bascule span and the owners of the Rail, Seherzer and Strauss patents (Seherzer Rolling Lift Bridge Company, Chicago, 111.) have been fuzmished plans and specifications from which they may prepare plans and specifications for the use of bidders, and bidders may secure from these owners full information regarding the plans and specifications.”

Bidders were not limited to the Rail, Seherzer & Strauss patents, and some of them submitted'plans of other makes with their proposals which met all requirements. The complainants and other -bidders obtained from the Seherzer company plans of its patented device, showing the piers upon which the bascule span rested, reversed, set lengthwise with the stream and nearer to each other by four and one-half feet from 'centre to centre, and calling for a span only sixty-nine and one-half feet long. The distance between the exterior of the piers remained the same. Evidently they were intended to be stationed so as to require a minimum of span, consistent with federal navigation regulations. The complainants based their estimate and submitted their bid both as to length of span and position of piers according to the plans furnished them by the Scherzer company, anticipating a modification of the counties’ plans by lengthening the four fixed spans proportionately four and one-half feet, to accommodate the stationary portion of the bridge to the bascule span, as designed by the owners of the patent; and by a notation upon the plans of the bascule span submitted with their proposal, the complainants notified the counties of the discrepancies in the two sets of plans and announced their attitude and ■their expectations.

Whether the predicament thus created by the plans of the Scherzer company failing to> accord with those of the counties, is chargeable to the counties, because of their adoption in the specifications, or to a misconception of the complainants as to which set of plans obtained, is of no moment. Nor is it of any consequence, in determining the right to the deposit, whether the complainants subsequently, in the course of negotiations, tacitly agreed to a modification of their proposal providing for a bascule span of the required length, as the defendants contend. The decision turns upon other considerations. The provision in the specifications and proposals relating to the deposit, which is therein characterized as liquidated damages in case of default, is in the nature of a penalty, to be construed strictly and to be interpreted as working a forfeiture only if the contract was lawfully awarded and wrongfully declined. Fairbanks, Morse & Co. v. City of North Bend, 68 Neb. 560; Perine Cont., &c., Co. v. Pasadena, 116 Cal. 6. The construction of the bridge was authorized by chapter 46 of the laws of 1914, page 67, and under the statute the contract was to be awarded to the lowest responsible bidder upon competitive bidding after public advertising. P. L. 19í2 p. 598. This limitation upon the exercise of tlie power restricted the counties to an award of the contract to the bidder who qualified, not only by being the lowest .as well as responsible, but also who, by his bid, proposed to do the work in the manner prescribed by the call. As to all other bids not in compliance with the terms upon which they were received, their duty, and the only course open to them, was to reject. Scola v. Board of Education, 77 N. J. Law 73; Shaw v. Trenton, 49 N. J. Law 339; Van Reipen v. Jersey City, 58 N. J. Law 262. That the complainants’ proposition to build the bridge did not meet, and was altogether out of harmony with, the plans and specifications upon which bids were invited, must be conceded, and that the variance was of a nature not to admit of an award, cannot be seriously controverted. The specifications comprehend a completed bridge ready for travel, and this obviously could not have been achieved by a contract combining the defendants’ plans and specifications with the complainants’ proposition; if it be assumed that the complainants bid, -as to. the stationary portion of the bridge, according to the counties’ plans. Their bid, based upon their own conception of the bridge, was, of course, gratuitous.

Furthermore, it is to be noted that the points of difference between the Scherzer company’s plans and specifications as prepared and submitted, and those called for, are not only as to length of bascule span and position of piers, but the additional weight of the leaves made necessary a general reapportionment of dimensions and of materials and a readjustment of appliances to insure a perfect balance. Of these details, plans, and specifications were to be furnished, as evidenced by the official specifications for the bridge, which required that the bascule design was to include full power equipment, adequate to operate both leaves, and also signals, brakes and all modem safety devices, and that “all of these items must be accurately and fully described by specifications and shown by plans to be submitted by the bidders,” including a description of bearings, machinery parts and power equipment. This- requirement could not be .dispensed with. In Case v. Trenton, 76 N. J. Law 696, the lowest bidder to whom the contract was awarded failed to give a description of the properties of asphalt to be used in the paving of a street and the proportions of the several ingredients of the wearing surface of the street pavement, &c., as demanded by the specification. The court of errors and appeals rejected the bid and set aside the award, holding that “these omissions seem to be more than mere irregularities which the municipal authorities might waive. In consideration of the present situation, we are not to confine our view to this case and consider whether the contract with Mr. McGovern is a reasonable one, or as advantageous to the city as any contract which, it will be likely to secure. We must consider the public policy which underlies the requirements of competitive bidding-. The purpose of the statute requiring competitive bidding is that each bidder, actual or possible, shall be put upon the same footing. The municipal authorities should not be permitted to waive any substantial variance between the conditions under which bids are invited and the proposals submitted. If one bidder is relieved from conforming to the conditions which imposes some duty upon him, or lays the ground for holding him to a strict performance of his contract, that bidder is not contracting in fair competition with those bidders who propose to be bound by all the conditions. Thisjis the policy which prevents the modification of specifications after bids have been presented, and the awarding of the contract to one of the bidders based upon such revised specifications.”

The complainants arc not estopped from setting up the invalidity of the award (Fairbanks, Morse & Co. v. North Bend), and, as the award of the contract was unlawful, there could be no forfeiture.

This result renders it unnecessary to decide whether the complainants implicitly agreed to modify their proposal relative to the bascule span; but, as counsel laid considerable stress upon this question, a brief discussion may serve to reconcile their widely-divergent views.

It was nearly a month after the bids were received that the county engineer of .Atlantic county discovered the conflict in the plans and advised the complainants that the discrepancy in the dimensions must be made up so as to correspond with the plans on file. Shortly afterwards a controversy arose over the character of coffer-dams to be used in setting the piers; the complainants claiming that steel shells, which were to permanently enclose the piers, could be efficiently utilized, while the engineer contended that the specifications comprehended coffer-dams independent of the shells. The use. of the shells would have saved some $15,000, and from later developments it seems that they would have answered the purpose. The engineer declined to recede from his position, and the complainants adhered tenaciously to their interpretation of the specifications. During the entire period of negotiation, some eighty-two days in all, the complainants repeatedly urged .the execution of the contract, which had been delayed through no fault of theirs, all the time, apparently, studiously ignoring the engineer’s suggestion to modify their plans and specifications. Silence often spells assent, but nowhere here do I find any intimation that the complainants were willing to entertain a contract modified, unless the counties would concede the use of the shells as coffer-dams, and in fact no legitimate inference can be drawn other than that the complainants were willing to bargain only if this concession were made. From this position they did not swerve, and the most that can be said is that the implied promise was upon condition which was not performed.

Forfeiture is also resisted on the ground that the complainants lawfully withdrew their bid before the award was made, and also that they justifiably withdrew, before the award became effective, because of undue delay in awarding the contract. June 9th, 1915, at Atlantic City, was fixed as the .time and place for receiving the bids. At a meeting of the board of freeholders of Atlantic, county, held on that day, a resolution was passed awarding the contract to the complainants, “provided, however, that before such award shall be binding it must be concurred in by the board of chosen freeholders of the county of Burlington.” On July 7th following, the board of freeholders of Burlington county resolved to award the contract to the complainants,

“subject to the sale oí the bonds hereinafter provided for, and subject to the ratification and approval of said contract and of the terms of this resolution by the board of chosen freeholders of the county of Atlantic.”

A bond issue of $40,000, to defray • one-half. the cost of the bridge, was authorized to be issued, in form as attached to the resolution, and to be sold at public auction. On July 14th the Atlantic county board passed a further resolution reciting the foregoing facts and in which it resolved to accept the terms as set forth in the resolution of the Burlington county freeholders, and authorized the proper officers of the board to enter into 'a contract with the complainants, subject to approval by the solicitor of the board. The Burlington county bonds were advertised to be sold on September ,1st, and, presumably, were sold on that day. Prospective bidders—bondbrokers—questioned the legality of the quoceediiigs, and a correctional and confirmatory resolution was passed by the Atlantic county board on August 11th. In the meanwhile the price of materials and the wage of labor rose by leaps and bounds, as is well known, owing to the wár, and the more favorable period for the doing of the work, within the two hundred working days allowed by the specifications, was rapidly passing, when, on August 30th, one day before the award automaticalty went into effect, the complainants, after almost constantly importuning the counties to accelerate the execution of the contract, withdrew their bid, assigning as reasons the non-conformity of their bid with the defendants’ requirements, unreasonable delay in awarding the contract, thereby imposing -the burdens of increased cost of materials and labor and of the doing of the work during an unfavorable season at an increased cost, and also because the defendants’ engineers declined to concede the correctness of the complainants’ construction of the specifications concerning the coffer-dams.

I cannot agree with the proposition advanced by the complainants’ counsel that a successful bidder for public improvements may arbitrarily withdraw his bid at any time before its acceptance and escape with his guarantee against a default; a view which finds expression in a dictum in the opinion of the ’United States circuit court for the northern district of New 'York, in Moffett Co. v. Rochester, 82 Fed. Rep. 255. A competitive bid submitted under statutory privilege and regulation is in the nature of an option to the municipalit}7, based upon a valuable consideration, to which the principles of law governing options, generally, are applicable. The consideration passing is the privilege of bidding and the legal assurance to the successful bidder of an award as against all competitors. Such an option-pending action consistent with its terms, expressed or implied, is a vested right of contract, of which the. municipality cannot be deprived, except, perhaps, by its consent, and is remediable at law by an action for damages, or enforceable in equity by specific performance, if feasible, or may be summarily dealt with by forfeiture of the penalty prescribed. To sanction any other rule would open the door to fraud, and render wholly abortive the legislative scheme for public competitive bidding..

It seems to me, however, that the complainants were justified in withdrawing their bid, because of the failure to promptly and decisively accept it. In other words, the option io the counties expired by its own limitation. Here there was no specified time for acceptance, and in the absence of a fixed period it is to be presumed that a reasonable time, under the circumstances, was agreed upon, and in my opinion the maximum of this time was reached when the two boards passed judgment upon the bids and awarded -the contract, provisionally, on July 7th. This formal action is cogent proof of ’ample opportunity for'examining the bids, investigating the fitness of bidders, and discharging all other essentials, preparatory to the boards’ exercise of their quasi-judicial function, and circumscribed the time tacitly agreed upon for the making of the award. While much could be said in criticism of the delay up to that time, further postponement of finality of action was without legal excuse, and the complainants were thence at liberty to withdraw their bid, and any concessions thereafter made by them were matters of grace, subject .to such conditions as they deemed fit to impose. It is to be admitted that the vicissitudes of trade are the risks of the bidder, but this hazard has its limitations and in reason could not be prolonged by-an award which might or might not have eventuated in a binding contract; depending altogether upon whether one of the counties could raise funds by a sale of its bonds. Bidders did not bargain upon this contingency. It was not a condition precedent to their right to enter into the contract that the counties should be first in funds, as was the case in Hurley v. Trenton, 66 N. J. Law 538; 67 N. J. Law 350.

The defendants attempt to meet this right to withdraw by asserting that the complainants’ delay in withdrawing amounted to a consent to an extension of the time for the execution of the contract until ’the bonds vrere sold, September 1st. As all'eacly observed, tlie complainants persisted in their endeavors to secure the contract, but, as we have seen, they, from a very early period in the proceedings, were insistent upon a contract embodying their construction of the specifications regarding’ the coffer-dams. This attitude is prominently reflected in the correspondence between the parties, and, in the absence of a willingness on the part of the counties to treat with them on this score, it is difficult to see how the complainants’ conduct can be construed into a waiver, especially when it is apparent that they entertained no notion to do so, except upon the terms they laid down.

I’Ve have been considering the right of the complainants, to a return of their deposit, from a ptirely legal standpoint. But it is manifest, taking into consideration all of the elements and circumstances surrounding the transaction, that they are entitled to relief strictly upon equitable principles. To force from them a penalty for the failure to execute a contract which they agreed to undertake in June, the performance of "which was suspended for nearly three months by the defendants, and which could then have been carried out only 'fit a greatly advanced oirtlav, would work an oppressive and unconscionable hardship. And, as against the right, to equitable relief, the complainants’ perseverance to obtain the contract does not militate, because, as before stated, their efforts were bent solely upon securing'a contract based upon a favorable construction of the specifications regarding the coffer-dams, which would possibly have resulted in a saving sufficient to offset the increased burdens. In fact, the complainants abandoned the undertaking only after a soaring of prices, during a long period of inaction on the part of the defendants, which forecast a heavy loss, and then only after the counties refused to yield their construction, whereby the losses might have been retrieved.

That a court of equity has jurisdiction to relieve from the enforcement of a forfeiture on legal or equitable grounds is undoubted. Barlow v. Jones, 87 Atl. Rep. 649.

The complainants are entitled to a decree for $5,000, with interest from November 10th, 1915, the date when the forfeiture was enforced and the check cashed, and also costs of suit.


text:
    Edward J. VanMarter v. First National Bank of Princeton, New Jersey, et al.
    [Submitted April 10th, 1917.
    Decided May 4th, 1917.]
    1. Columns encroaching on the public street twenty-two inches constitute a public nuisance.
    2. In cases of public nuisance, a court of equity will not interfere at the instance of a private individual unless his private rights are so violated that he is subjected to substantial, serious and irreparable damages. He must suffer more than the public at large.
    3. Under the facts in this- case it does not appear that the complainant suffered such injury as would entitle him to injunctive relief.
    On bill, &c.

      Mr. Lintón, SattertJmáite, for the complainant.

      Messrs. Edward L. Katzenbach and Fredericlc W. Gnichtel, for the defendants.
   Backes, Y. C.

. This is a bill to restrain a public nuisance causing a private injury.

The complainant owns a store building on the northerly side of Nassau street, Princeton, in which he conducts business. The defendant’s land adjoins on the east, and extends to the corner of Witherspoon street a distance of forty-nine and fifty-two hundredths feet. • Sixteen years ago the defendant erected a five-story banking-ho'use on the northwesterly corner of the streets, fronting on Nassau street twenty-six and eighty-five hundredths feet; and in the summer of 1916 built an addition covering the remaining frontage, which, as to architecture and alignment; conforms to the original structure. The face of the first-story borders on the street line of Nassau'street, while the upper floors project twenty inches; the overhang being supported by seven pilasters extending beyond the building line and into the pavement twenty-two inches. Four pillars support the old building and three the new. The complainant objects to the latter, and seeks their removal, because, as he claims, they interfere with his prospect and conversely "with the visibility of his show window. The bill was filed during the course of construction, and prays that the offending operations be enjoined, but there was no move for a preliminary injunction. It will now be treated as one for mandatory relief.'

The testimony locates the northerly line of Nassau street on the block in which the lands of the complainant and defendant are situate, with a degree of certainty as to leave little doubt of the defendant’s encroachment upon the public highway to the depth of twenty-two inches. The street line is established, it seems to me, by the defendant’s own definition of its title, the description of which begins at the corner of Nassau street and runs along Witherspoon street seventy-four and seventy-five hundredths feet to a brick building. This entire space is occupied by the banking-house proper, while the columns stand beyond the lot line, and doubtlessly constitute a public nuisance.

The circumstance under which a private suitor may intervene to abate a public nuisance is declared in a long line of cases in this state. “It is well settled that the remedy by indictment is so efficacious that in cases of public nuisances courts of equity will interfere, at the instance of a private individual, only when his private rights are so violated by such a nuisance that he is subjected to substantial, serious- and irreparable damage. He must suffer some private, direct and material damage, beyond that which is suffered by the public at large, and which, but for the interference of equit}', will be an irreparable injury to him. * * * Mere diminution of the value of his property, without irreparable mischief, will not furnish a foundation for equitable relief.” Van Wagenen v. Cooney, 45 N. J. Eq. 24; Anthony Shoe Co. v. West Jersey Railroad Co., 57 N. J. Eq. 607; Humphreys v. Eastlack, 63 N. J. Eq. 136.

The evidence does not show that the complainant’s injury is of such a nature as brings his case within the rule. The complainant’s only grievance is that the view of his show window is obstructed, whereby the- availability of his property for store purposes is lessened and its value consequently diminished. The projection of the upper floors of the bank building is not objectionable, so he affirms; perhaps because of the protrusion' of structural bay windows of his° own building, extending from the first floor to the eaves. The complainant’s building is on the main street of the borough, and in a section altogether devoted to business purposes, so it cannot be said that the store feature suffers in character or repute by reason of the pillars. The column nearest the store and of which he especially complains is within a few inches of an ehtrancé leading to the second-story of his building. The show window is between the hallway-and the store door, with a blank side next to the hallway. Thé line of vision to the centre of the Nassau street pavement eastwardly at Witherspoon, over fifty feet away, is unimpaired, and from this distance the store front is in plain view. The manner in which the complainant’s window is constructed renders it impossible to see- the inside from a point distant, where the outside is plainly visible; and even if the window were more favorably arranged, it -would be difficult to perceive how the pillars could, in the least, obscure a display of merchandise. The argument-of the supreme court of New York, in a similar case, illustrates: “It is true that to a person approaching the plaintiff’s store on the sidewalk from the north the line of vision will not strike his show windows quite so soon as if the. base and pedestal of the southerly column were not there. That a proper display by a merchant of his wares tends to attract buyers is self-evident, but it is not apparent that this slight obstruction of the view of the window at all shuts out the view of the goods inside. Ordinarily the most favorable point from which to see through a window is a convenient distance from and at right angles'to the glass, but as the angle is lessened the ability to* see through is likewise diminished. The law of the reflection of light from polished surfaces is well known. The reflected'ray lies in the plane of incidence, and the angle of reflection is equal to the angle of incidence.” Sautter v. Utica City National Bank, 90 N. Y. Supp. 838.

There is not a particle of evidence showing an actual diminution in value of the complainant’s property, nor is there any indicating that he has even been put to inconvenience bjr the wrongful placement of the pilasters.

The complainant may be able to sustain ah action at law for damages occasioned by the unlawful projection of the bank building as an entirety, beyond the building line; and he might have been successful on this- score in restraining the encroachment had he not himself been an offender and had prompt action been taken; but, considering the case in its present aspect and the theory upon which it was tried, it is apparent that the complainant has not shown that he has suffered any sensible or appreciable injury—a burden which he was bound to discharge to the point of demonstration—and obviously none of a nature serious and irreparable.

The case of Ackerman v. True, 175 N. Y. 353, relied upon by the complainant, is in complete harmony with the principle that a court of equity will abate a public nuisance at the suit of a person to whom it lias worked a special -injuryIn that case, the trial court found, as a fact, that the value of the com- * plainant’s property was diminished to the amount of $15,000 by the defendant’s adjacent wall encroaching upon the highway, but refused to abate the nuisance. The court of appeals reversed the decree below and granted injunctive relief, on the ground that the magnitude of the findings evinced-special and substantial damages.

The bill will be dismissed, with costs.


author: Backus, V. C.

text:
    Samuel A. Clark et al. v. Maria S. Clark, individually and as executrix, &c., et al.
    [Submitted April 24th, 1917.
    Decided May 11th, 1917.]
    Commissions are denied to an agent who kept no accurate records of his agency business, permitted trust funds to remain idle, mingled the trust funds with his own, and on an accounting was found unable to •account for a large balance due from him, and in such a case the full legal rate of interest will be charged from the date of each conversion, and compounded as a punishment.
    Oil bill, &C.

      Mr. Kidney IF. Eldridge, for the complainants.

      Mr. Foster M. Yoorhees, for the defendants.
   Backus, V. C.

This bill is for an account and was referred to a master, whose report has been excepted to in the particulars- hereafter mentioned.

Amos Clark died October 30th, 1912, at the age of eighty-two, in Boston, where, in the latter years of his life, he made his home. He had large real estate holdings in Elizabeth and Union county, and some in Tarrytown, New York. His son, William A. Clark, had the sole and exclusive management and control of his property, attending to the collection of rents, and negotiating • sales of the realty, and handled his financial affairs.generally. William A. Clark died -a year after his father, and this bill was filed against his executors by his father’s executors, for an accounting. The master was directed to take an accounting for the period of six years next preceding the death of Amos Clark, and he has reported that during this time William A. Clark received $229,503.63 and disbursed $173,-261.5-1,. leaving- unaccounted for and due to tbe complainants $56,242.09, besides interest. A stipulation was entered into ■ by counsel attesting- the correctness of these charges and discharges, reserving the items to which the present exceptions are directed, and some others which the master has allowed and to which no exceptions have been taken.

The first and second exceptions are to two items of charges of $1,000 respectively. These sums were part consideration price of the sales of two tracts of land: one to William C. Hau-' gaard, the other to -the Murray Hill Heights Company. " The single ground of objection is that the moneys were not traced into the hands of the agent and therefore the proofs fall short of the legal requirement. No such duty is imposed upon the complainants. The transfers-and amounts are admitted, and as the son negotiated the sales exclusively, which is also conceded, the inference is inevitable that he collected the-proceeds. Moreover, the evidence satisfactorily establishes the charges and sustains the master’s findings.

.The third exception relates to a charge of $4,556.21 the proceeds of a bond and mortgage made to Amos Clark by Dorothy Miller. That William A. Clark cashed this mortgage is not disputed. . The contention is that it was his property by gift from his father. The mortgage was assigned by. Anios Clark to William A. Clark on March 28th, 1910, and by the latter hypothecated with-the Plainfield Trust Company for a personal loan-of $3,500, three days later, and afterwards assigned to the Fidelity Trust Company. One thousand dollars was paid on account of the loan out of trust funds, and the balance liquidated by the -assignee; the surplus being deposited by William A. Clark in his trust account. Letters by Amos Clark to his son, and found in the latter’s possession, written at the time the mortgage was assigned, concerning the purpose of the assignment, and others of much later dates, inquiring as to the interest and the disposition, if any, made of the mortgage, and the application by William A., -Clark of part of the proceeds to the credit of the trust estate, evinces beyond peradventure that the assignment from the father to the son was made for convenience of sale or collection, or was procured by tlic latter to serve the ulterior purpose to which it was put. Eor the purpose of illuminating the transaction, the letters, although unanswered, were competent. State v. MacFarland, 83 N. J. L. 474.

There is another reason for sustaining the charge. There is no proof to establish the alleged gift. The written assignment alone—and this is all the defendants rely upon—is not sufficient. The rule is that “In all transactions between persons occupying relations, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed and who has acquired an advantage, to show affirmatively, not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.” Hall v. Otterson, 52 N. J. Eq. 522; Parker v. Parker, 45 N. J. Eq. 224; Corrigan v. Pironi, 48 N. J. Eq. 607; Coffey v. Sullivan, 63 N. J. Eq. 296.

The fourth exception is to a charge of $17,500, the proceeds of the sale to Thomas A. Sperry of a tract of land of thirty-six and. fifty-four hundredths acres, and of “the grist mill lot and the lot of forty-five hundredths acres” adjacent. The tract of thirty-six and fift3r-four hundredths acres was conveyed by Amos Clark to his son on May 29th, 1907, for a consideration of one dollar. The title to the grist mill lot and the one adjoining was also at one time in Amos Claik. The history of these lands is fully set forth in the evidence and the master’s report, and it is only necessary to remark that it satisfactorily appears that they at all times belonged to Amos Clark, and that in his dealings with them William A. Clark recognized and acknowledged the beneficial ownership of his father.

The grist mill lot and the fort3r-five hundredths acre lot formed an inconsequential part of the sale to Sperry, and was not adverted to in the argument, except to reflect William A. Clark’s ownership of the larger tract conveyed to him by his father. It is not pretended that any consideration was paid for this latter conveyance, but the contention is that as the deed is absolute on its face and declares tlie uses to be for the grantee, proof of a resulting trust is inadmissible and, therefore, and because there was none of an express trust within the statute of frauds, the defendants cannot be called upon to account. This would ordinarily be so. Fretz v. Roth, 68 N. J. Eq. 516. But, where 'a fiduciary relation of trust and confidence exists, the rules of evidence which exclude oral testimony to vary a written document, are superseded by the equitable rule above quoted from the Otterson- Case, to the effect that a conveyance of land will not be upheld as a gift unless it üs shown affirmatively that it was so intended and understood. There is no such evidence.

Fifth exception: The master allowed $15,000 commissions for services, at the rate of $2,500 a year, to which both complainants and defendants except, the former contending that none should have been allowed, or at the most $2,000 j5er annum, while the defendants claim that the services were reasonably worth $5,000 a year.

There is no evidence of an express contract to remunerate. The declaration of William A. Clark that his father was paying him $2,000 a year, is not competent to prove an agreement, although it might be considered in limiting the amount of compensation.

The character of the services and the circumstances under which they were rendered, were such as to imply a promise to pay for them. Although they were performed by the son for the father, they were not rendered as members of the same household in the usual family relationship, and no countervailing presumption arises that they were discharged gratuitously. Disbrow v. Durand, 54 N. J. Law 343.

Compensation, however, is allowed only when the servant has faithfully performed his duty. Here, the son was guilty of most flagrant abuses of his trust. He kept no accounts; mingled the funds with his‘own; from time to time appropriated them to his own use and finished with a defalcation of ove? $71,000. This deficiency covers a period of six years only, and- how much more of the estate was absorbed before and from the time the trust began, can only be conjectured. I am unable to comprehend upon wliat-theory, with principle and authority against it, the master arrived at his conclusion. It was suggested that Amos Clark was habitually careless in the matter of accounts, and'especially so with reference to his son’s, and that this ruling passion influenced the latter and was in a large measure responsible for his failure to keep a faithful record of his stewardship. Indeed, I observe that the master indulges in some palliative sentiments along this line, but I fail to discover any heritable quality in the parental trait. The chaotic and deplorable condition in which the accounts were found, and which required the services of two experts to extricate and bring to an intelligent understanding, was undoubtedly clue to an indifference to duty, but the toleration of the father was not a license to plunder. The relation was most intimately confidential, intensified by a father’s high esteem and great natural love and aifection, and thus, aged and helpless, he entrusted all of his material interests to his son, relying implicitly upon his fidelity'-, in unbounded'assurance that all was well’husbanded and conserved. And this confidence was repaid by despoiling .the estate of nearly one-third of its assets, at the rate approximately of $1,000 a month, and during a period when the father’s allowance for the support of his family, consisting of himself, wife and niece, was reduced to $200 a month, presumablj' by arrangement, in the belief that that was all that the estate could afford, and when the son knew that his father was frequently distressed for want of money. Compensation, under such circumstances, would reward faithlessness and duplicity and is unthinkable. For offences, venial in comparison, commissions have been uniformly denied, as for failure tb keep accurate records or to render an account; permitting trust funds to lie idle or remain unsecured, or without distinct and separate investment; for mingling them with one’s own funds, &c. The cases are collected in In re Walsh’s Estate, 80 N. J. Eq. 565. ■ The rule has also been applied where the compensation was fixed by agreement. Ridgeway v. Ludlam, 7 N. J. Eq. 123; see, also, Wright v. Smith, 23 N. J. Eq. 106.

Sixth exception: The master reported that the interest upon the amount of the defalcation be computed at the rate of four per cent, from the death of Amos Clark. There is no room for compassion' in this case. The master should have calculated interest at the legal rate. Exact justice demands that interest be reckoned from the date of each conversion, and compounded as a punishment. Frey v. Frey, 17 N. J. Eq. 71. As the exception challenges only the rate, the report will be modified to that extent. . ’

The defendants’ exceptions will be overruled, and the complainants’ exceptions sustained, with’ costs. The master’s report will be confirmed, except as .to the compensation and interest, and as to these it will be corrected, and a decree advised accordingly.


author: Foster, Y. C.

text:
    The Job Haines Home for Aged People v. Clarence A. Keene et al.
    [Submitted June 2d, 1917.
    Decided June 15th, 1917.]
    A person accepting-a benefit under a will is required under the doctrine of election to perform all the requirements of the will, nor can he take a beneficial interest under the will and set up any right or claim of his own to defeat its full operation, after a lapse of time so great that it is impossible to restore the parties to their original position.
    On’bill, &C.

      Mr. Charles G. Titsioorth, for the complainant.

      Mr. Albert W. Harris, for the defendants.
   Foster, Y. C.

This is an action to quiet complainant’s title to certain property in the city of Newark used as a home for aged people.

The premises in question were part of the real estate devised by the last will of Joseph Crane, which was probated October, 1832, to his son and four daughters. Phoebe Keene, one of the daughters, thus acquired an undivided one-fifth interest in the property, and by a. deed dated October 15th, 1832, the other devisees conveyed their undivided four-fifths interest to said Phoebe Keene and Alfred Keene, her husband.

By his will, Alfred Keene, who died in 1880, bequeathed to his wife, Phoebe, certain personal property, and also gave her the use of the premises in question for life, and on her death he devised the same to his son Joseph Edward Keene. In addition to Joseph, Alfred Keene left him surviving two other' sons— Thomas Austin Keene and Howard DeWitt Keene; and the defendants are heirs-at-law of Thomas -and Howard.

Alfred Keene made the devise to his son Joseph on the death of’his widow of specific property, viz., “the house and premises where I now reside,”' which are the premises in question, and this devise was made to Joseph and accepted by him, as stated in Alfred’s will, “in full satisfaction of all claims' against me or against my estate for any services rendered to me in my lifetime or for any other indebtedness of any kind whatsoever.”

Thomas was given and discharged from the amount of his indebtedness to his father; and to Howard was given a bond and mortgage for $1,800, with the accumulated interest thereon; and Alfred also bequeathed and devised to each of his sons an equal one-third interest in the residiré of his estate.

By his will Alfred Keene sought to make a balanced disposition of his estate’ among his widow and their children, and the widow and children accepted without objection the provisions which he had made .for them.

After the death of her husband, Phoebe Keene continued to live on the property with her son Joseph for "the rest of her life. Thomas had his home in Brooklyn, New York, where he died in 1889, and Howard’s home was in Yonkers, New York, where he died in 1899. Neither of them, or any of their children, ever lived on the premises in suit after the death of Alfred in 1880. Joseph, however, continued to live on the property from the time of his father’s death until he died on November 22d, 1912.

Joseph left a last will and testament which has been duly probated, by which he gave certain legacies to the .defendants the children of his brothers Thomas and Howard, amounting to about $1,500, and which they have accepted, and he devised the premises in question and the residue of his real and personal property to complainant, for the purpose of establishing and maintaining a home for aged people.

Complainant has been in possession of the premises since Hay, 1911, and has been conducting the same as an auxiliary home for aged people in accordance with the direction of Joseph’s will.

Joseph’s title to the premises under the devise from his father was never questioned by his mother, Phoebe Keene, or by his brothers, Thomas and Howard.

Defendants, however, as the respective heirs-at-law of Thomas and Howard, now claim to own an undivided two-thirds interest in the property 'by reason of the facts above set forth.

Their contention is that under the will of their great grandfather, Joseph Crane, their grandmother, Phoebe Keene, became seized of an undivided one-fifth interest in the property absolutely; that the deed of October 15th, 1832, from Joseph Crane’s four other children and devisees to Phoebe Keene and Alfred Keene, her husband, conveyed. their four-fifths interest in the property to Phoebe and Alfred as tenants by the entirety; and that upon the death of Alfred the fee to the entire property became vested in Phoebe by-the joining of her title to the undivided one-fifth interest with her title to the remaining four-fifths interest which she acquired as the surviving tenant by the entirety. They further contend that the fee to the property being thus vested in Phoebe, the will of her husband, Alfred, by which he gave her, as his widow, a life interest in the property, and on her death devised the same to Joseph was ineffective to accomplish its purpose, as the property belonged absolutely to Phoebe; and on her death intestate the property descended to her three sons—Joseph, Thomas and Howard—and that the only interest in the property which Joseph could, and in effect did, devise to complainant was his undivided interest in the property, and that these defendants as the heirs of Thomas and Howard, both of whom died intestate, inherited the remaining two-thirds interests on the death of their respective parents.

Complainant’s answer to the contentions of defendants is that Phoebe Keene, and all claiming under her, or under her sons Thomas and Howard, are estopped from asserting title to the property; or to the disposition made of it by the will of Alfred and also by the will of Joseph, because Phoebe Keene and her sons Thomas and Howard elected to take and accept the provisions made for them in the will of Alfred in place of their interest in tire premises in question; and, further, because the defendants elected to accept the provisions made for them by the will of their Hnele Joseph, in lieu of any interest they may have been entitled to in the property.

Complainant also asserts title to the property which it claims to have acquired by the continued adverse possession thereof of Joseph and complainant since the death of Alfred Keene in 1880.

Complainant further insists that under a provision of J oseph’s will which reads: “If any contest the provisions of this will they are to lose all benefits therein,” defendants having elected to receive and accept the benefits given them under his will are estopped by this provision from contesting the devise therein made to complainant.

The questions to be determined'under the issues thus presented are:

Whether Phoebe Keene and her sons Thomas and Howard were put to their election by the disposition made of her property by the will of her husband, and if they were, if they exercised their election by accepting the benefits given them by his will.

If Phoebe, Thomas and Howard were not obliged to elect, and did not elect, under the will of Alfred Keene, were defendants as the heirs of Thomas and Howard put to their election by the devise of the property to complainant under the will of Joseph, and if so, did they exercise their election by accepting the benefits given them by his will ?

If an election in either case was not necessary, or if it were not exercised, has complainant through its own and Joseph’s possession acquired adverse title,, under- color of title to tlie property ?

What effect, if any, has tlie provision of Joseph’s will against a contest upon the controversy?

The general doctrine of the law relating to election is stated by Mr. Justice Depue in delivering the! opinion of the court of errors and appeals in Pratt v. Douglas, 38 N. J. Eq. 516 (at p. 536), as follows:

“Where the testator has only a partial interest in the property he disposes of by will, courts will incline, as far as-possible, in favor of a construction which will apply the language of the will only to the interest or estate which the testator is able to dispose of in his own right, and it requires an unequivocal expression or indication of interest to dispose of the entire property in order to raise a necessity for an election. 1 Pom. Eq. Jur. ¶¶ 488-493.” And lie adds that in Adsit v. Adsit, 2 Johns. Ch. 448, Chancellor Kent, from, a review of the cases, deduces a rule that has met with uniform approval—that to enable the court to deduce an intention that a testamentary gift to the widow should be in lieu of dower, “the claim of dower must be| inconsistent with the will and repugnant to its dispositions, or some of them; it must, in fact, disturb or disappoint the will.”

In Stevenson v. Brown, 4 N. J. Eq. 503, certain lands were devised for life to testator’s widow, and it was held that “the widow was at liberty to take her dower in' the lands, or to accept the devise. If she elected to take the devise she must take it cum onere. There is no rule distinguishing between the widow and other devisees,” as “the settled principle in equity is, that he who accepts a benefit under a will must conform to all its provisions and renounce every right inconsistent with them.”

In the case before us, we find Alfred Keene by his will devis- • ing to his son the particular property where he lived and to which he had no title, at the time of his death, and which upon his death became tlie absolute property of his widow, and giving ■ •her a life interest therein, together with certain personal property which she accepted. There is no express statement in his will that the provisions made for his widow are given her in lieu of her ownership of the property, and an intention on his part that such should be their effect can only be deduced by clear and manifest implications from his will, founded upon the fact that her claim of title to the property would be inconsistent with the will and so repugnant to its dispositions as to disturb and defeat them. Pratt v. Douglass, supra.

An intent/-of the husband to dispose of his wife’s share of property and thus put her to an election will never be inferred when the words of the gift may have their fair and natural -import by applying them only to the property which he has the power to dispose of by will. 1 Pom. Eq. Jur. § 550.

. In determining the necessity for an election there is a distinction between a gift in general words of description, such as “all my lands” or “all my estate,” and the like, and a gift of specific property. “In cases of the first class, an obligation to elect does not arise, for the testator’s language can have full effect when applied only to his share or interest and he is presumed to have intended to give only the property he had to dispose of.”

“In cases of the second class it cannot be said that upon every specific devise or bequest a duty to elect arises. A case for an election by the co-owner of the property so given, who is a beneficiary under the testator’s will, will be presented only where the testator’s gift of it t<5 another is so expressed by words of description as to import air intent to give to the latter the whole of the common property in its entirety.” Pratt v. Douglass (at p. 538).

The will of Alfred Keene in the devise to Joseph used the specific words of description, “the house and premises where I now reside,” and it is clear from this that he intended this property upon the death' of his widow should be Joseph’s absolutely; furthermore, the will states that this gift to Joseph was in satisfaction of testator’s indebtedness to him;' and the remainder of testator’s estate excepting an undivided one-third interest in the residue was given to his widow and two other sons. And it would seem under the principle relating to a specific devise stated above, that the specific gift of the homestead to Joseph put the widow to her election. She could not assert her title to it and accept the personal property bequeathed to her without defeating and disappointing the will; nor could her sons Thomas and Howard do so on her death, as they had accepted the provisions made for them under their father’s will.

On the distribution of Alfred’s estate, and the payment to the widow and to Thomas and Howard of the gifts made to them, there was nothing but Joseph’s undivided one-third interest in the residue out of which testator’s indebtedness to him could be paid.

This clearly was not testator’s intention. His scheme of distribution contemplated suitable provision for his widow and children and the settlement of the indebtedness owing by him to Joseph. His widow and his sons Thomas and Howard could not take the provisions made for them and then claim title to the property devised to Joseph without disturbing and disappointing testator’s other dispositions of his property and defeating his attempt to settle the indebtedness owing by him to Joseph by the devise of his home.

It is well settled that a person accepting a benefit under a will is required, on the doctrine of election, to perform all the requirements of the will. “He cannot disappoint a will under which he takes a benefit.” Bird v. Hawkins, 58 N. J. Eq. 229 (at p. 246).

And the rule is equally well settled that a man shall hot take any beneficial interest under a will, and at the same time set up any right or claim of his own, if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will. Van Duyne v. Van Duyne, 15 N. J. Eq. 503.

Mrs.o Keene and her sons Thomas and Howard in accepting the benefits provided for them under Alfred’s will, were required on-the doctrine of election to relinquish such of their rights as were inconsistent with the provisions of his will “in order that no disposition of the testator therein may be defeated.” Pratt v. Douglas, supra.

The fact that Mrs. Keene accepted the provisions made for her by the will, and that after the death of her husband she con-tinned for a few years, and until her death, to reside on the property with Joseph in the enjoyment of the life estate therein given her by the will; and that Thomas and Howard removed from the state and established homes elsewhere, and allowed Joseph to assert and to exercise sole ownership of the property, without claiming, at any time, their right to any interest therein, justifies the conclusion that they consented to and acquiesced in the disposition of the property made by their father’s will and elected to take the benefits given them by his will, rather than assert their right to an interest in the property.

And the, same comment can be made and the same conclusion reached on the conduct'of. the defendants in accepting the provisions made for them by the will of their Uncle Joseph.

Since the death of Alfred, in 1880, all parties, including the defendants, having any right to assert an interest in the premises in question remained silent until after Joseph’s death. • They permitted him to lose the opportunity of having the indebtedness owing him by his father paid out of his father’s estate; they allowed him for thirty years to bear the expense oí maintaining and improving the property, and the defendants accepted the benefits amounting to about $4,500, which Joseph gave them1 by his' will, under the belief that he owned the premises in question; and they now seek to keep the benefits his will gave them and to defeat and disappoint the will in other respects.

It is not claimed that defendants or their parents or grandmother acted or made their election in ignorance of their right to the property, or under a mistake of the real nature and extent of their respective rights therein. If their election had been made under such circumstances it would not be binding, and could be revoked, unless rights of third parties have intervened, which would be interfered .with by the revocation.

In Young v. Young, 51 N. J. Eq. 500, Vice-Chancellor Pitney stated that—

"The authorities seem to concur in holding that in order to make the enforcement of one demand, which is inconsistent with another, a final and binding election to take that and not the other, the party must either be shown to have acted advisedly, with proper knowledge of all the circumstances, and with a consciousness of the effect of the act relied upon, or the party adversely interested must have so changed his position in reliance upon such action that it would he inequitable to permit the party who has the choice to recede from his former action.”

Chancellor Green, in English v. English, 3 N. J. Eq. 509, uses this language:

“What acts of acceptance or acquiescence are sufficient to constitute an election cannot be designated with sufficient precision to justify a general rulé. Each case, as it occurs, must be governed by its own peculiar circumstances. The general questions are, whether' the parties acting or acquiescing were cognizant of their rights; whether they intended to make, an election; whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed, or whether these inquiries are precluded by lapse of time.”

These statements of the law are particularly applicable to the situation under consideration. Lapse of time and the death of Mrs. Keene and her three sons render it impossible to restore the parties to their original position. In reliance upon the election of his mother and brothers, Joseph made no effort to collect the indebtedness owing him from his father's estate; and relying on their apparent election he permitted them to divide the greater part of the estate among themselves; during the thirty or more years of his occupancy of the premises, with their consent or acquiescence he treated the property as his own and paid the taxes, made improvements thereon, and generally acted as, and 'publicly claimed to be, the owner of the property, and it would now be impossible to have an accounting of his expenditures in order to reimburse his estate. He, furthermore, in connection with the devise of this property to complainant, made substantial gifts to the defendants which they accepted and do not offer to return; and if they were able and willing to make return of the legacies he gave them, it cannot be said that the amount thereof, with interest, would be sufficient to reimburse his estate for all that was due him.

The doctrine of election is one resulting in compensation, and not in forfeiture (Young v. Young, supra), and if it were possible for defendants to properly, reimburse and compensate the estate of Joseph for all that was due him, a different construction might Joe put upon their conduct and upon the acts and conduct of Mrs. Keene and her sons. But as such compensation cannot be made, principally because the amount required cannot be ascertained with any degree of accuracy, I deem it equitable under all the circumstances that defendants should not be permitted to recede from the former action of themselves and of those under whom they claim; and to hold that Mrs. Keene and her sons exercised their election under the will of Alfred Keene, and that defendants also exercised their election under the will of their Uncle Joseph. • This conclusion makes it unnecessary to pass upon the other questions raised on the argument.

A decree for complainant will therefore be advised, with costs.,


author: Lane, V. C.

text:
    Public Service Railway Company v. Board of Chosen Freeholders of the County of Hudson.
    [Decided March 19th, 1917.]
    1. In a suit by a street railway to restrain a county .from constructing any new bridge which would not be of sufficient strength to accommodate complainant’s traffic, the burden is on the county claiming contribution to show the excess amount required to be expended to accommodate complainant’s traffic.
    2. If estimates had been procured showing the cost of the two kinds of bridges, the difference between them would, in the absence of fraud or bad faith, be the amount to be so contributed, and the burden of proof would have been to a certain extent shifted.
    3. The street railway is responsible only for the excess amount fairly expended by the county, caused by its use of the bridge, and not for unnecessary concrete overties or a greater amount of metal made necessary by their use, or for expensive construction due to expected increase in general traffic.

      4. In this suit the acceptance of the statement of the county’s expert that a bridge to accommodate ordinary traffic could be built for $3,000 or $4,000 less than the bridge that was built to accommodate street railway traffic, as proof of the proper amount of contribution, was error.
    On bill, &e.

      Mr. Frank Bergen, for tlie complainant.

      Mr. James J. Murphy, for the defendants.
   Lane, V. C.

The bill was filed on May 26th, 1908, to secure an injunction restraining defendant from interfering with the use of a bridge over the Morris canal on Avenue C, a public highway between the cities of Jersey City and Bayonne and to restrain it from constructing any new bridge which would not be of sufficient strength to accommodate the trolley service maintained by the complainant. The original contention of complainant was that the bridge was part of the highway and that the freeholders were under a duty of maintaining that portion of the highway, as every other portion, in such manner as to accommodate all lawful traffic and that under certain statutes complainant’s trolley service was within the term lawful traffic, for which defendant must provide. The case was originally referred to Vice-Chancellor Emery who, on November 10th, 1910, determined that, by force of statutes referred to, there was imposed upon the complainant a duty, so far as this particular bridge was concerned, of contributing to the cost of the new bridge which had been constructed. The measure of the contribution was in the language of the vice-chancellor the “increased expense due to the necessity of providing for the increase in weight and capacity of the cars.” The matter was referred to a master to determine the amount of contribution. No decree of any nature was made. Due to the illness of the special master ihe cause after testimony had been-taken was referred to another master. The matter comes before me on a motion to confirm this master’s report, he having found that the amount of contribution was the sum of $3,000 with interest from’June 3d, 1909. Confirmation is resisted by complainant. Tlie motion should have been for a final decree. No formal exceptions were filed to the master’s report. If it were necessary that they should be to raise the issue I should treat them as having been filed. I shall treat this motion as for a final decree in the cause, based upon all the testimony taken. While in the state of this record 1 am not bound by the opinion of Vice-Chancellor Emery, yet, by acquiescence, it has become the law of the case, and I shall consider merely the amount that the complainant should contribute toward the expense of the construction of this bridge under the rules determined by him. I have considered the opinion, the testimony, the report of the master, and the instructive briefs of counsel, and I have come to the conclusion that the master applied'an erroneous theory in dealing with the facts. The .question before him was how much money did the county fairly expend-in addition to what it would have otherwise expended, for the purpose of accommodating the trolley traffic. The master seems to .consider that complainant was obliged to pay such an amount as the county expended upon the bridge over and above the amount for which a bridge might have been constructed at the time to accommodate ordinary traffic. Obviously, this is an entirely different proposition. Plans' and specifications for the bridge were procured and adopted and the bridge was constructed without consultation' with complainant. It is demonstrated that the engineer for the county was inefficient. Complainant is not responsible for acts or mistakes of the defendant or of its engineer, nor for extravagance, if there was such. The burden is on the county to show the amount that it has expended for the purpose of accommodating this traffic. It is fairly on the county. It had sole control of the construction of the bridge. If it had been desired the amount might have been 'fixed with approximate certainty. The county, in 1908, when the bridge was commenced, might have had prepared plans and specifications for such a bridge as would have been built if it was not essential to provide for trolley traffic, and such a bridge as in fact was built, and to have estimates and bids thereon. If this course had been pursued the amount of contribution would be the difference between the two, in the absence of proof of fraud or bad faith. The burden, to a certain extent at least, would hare been shifted: It appears that the engineer selected plans of the American Bridge Company for a bridge of railroad construction—that is, construction designed for accommodation of steam locomotives.. The American Bridge Company have plans for bridges of highway construction, designed one class to accommodate trolley traffic, and another not. Railroad construction is much more expensive than highway construction. It appears without dispute that highway construction could have been used in this instance and a bridge so constructed would have accommodated the trolley traffic. I do not intimate that the'use by the county of railroad construction was extravagant or unjustified, but I do find that, under the 'testimony, and by that 1 am bound, ■ such railroad construction was not rendered necessary by reason of the trolley traffic. If railroad construction is a proper construction for this avenue, and the witnesses have testified it is, it is because the general traffic and its expected increase make it advisable and in the end economical. Complainant is not responsible for the increase .of expense due to expected increase of general traffic. All that complainant is responsible for is the amount fairly expended by the county caused by its use of the bridge. Four experts of reputation testified that the increased weight of metal necessarily placed in the bridge to accommodate it for trolley traffic is eight thousand six hundred and forty pounds, and the increase in cost $302.40, arrived at by multiplying eight thousand six hundred and forty pounds by three and a half cents a pound. The bridge was con■structed by the American Bridge Company for so much a pound of metal—the prevailing practice. This increase of metal was necessary to strengthen the four girders upon which rested the four trolley tracks. The trolley tracks rest directly upon the girders so that the weight is taken by them. The evidence is clear that the vibration caused by the trolley cars as the result of impact is not distributed, at least to any appreciable degree, to any other portion of the bridge, and that the trolley cars might run over the four girders, if-they were properly stayed, if the remainder of the bridge were non-existent. The only evidence produced by the defendant which can be depended Upon is üiat of an expert wbo testified, generalty, that the cost of the bridge was increased some $3,000 by reason of the fact that it had to be adapted for trolley service. lie produced a plan of a bridge which could have been constructed for some $4,000 less than the present bridge, which bridge he testified would accommodate all of the general traffic aside from the trolley cars. This bridge is designed according to highway construction specifications. It has, I think, five girders instead of twelve and is of a considerably lighter construction. To meet this complainant’s expert testified that taking the plan of defendant’s expert the bridge could be made to accommodate trolley traffic at an increased expense of $418.95. To this testimony there‘was no reply. If a bridge could have been constructed according to the plans and specifications designed for highway construction, which could be made to accommodate trolley traffic for a slightly increased expense, it was the duty of the county, as to the complainant, assuming no other circumstances present, to construct such a bridge. Complainant is not responsible for the fact that it did not. There is no evidence whatever that trolley traffic alone requires the railroad construction used. As indicating wha.t causes the difference between the two methods of construction, it is only necessary to say that in figuring the weight, stress and strain, a bridge must bear, so far as ordinary highway travel is concerned, there is figured an impact of twenty-five per cent, upon the live load, whereas in railroad construction, by reason of the impact of heavy locomotives with their unbalanced wheels, there is figured an impact of eighty-one per cent, of live load. This latter percentage does not apply to trolley cars, the wheels of which are of the same weight in all parts and which travel at a comparatively, low rate of speed. The testimony of all the experts.is to the effect that the impact caused by a locomotive running under a speed of fifteen miles an hour is hardly perceptible. If .that be true, how much less is the impact of a trolley ear which very seldom travels over the rate of fifteen, miles an hour, with its balanced wheels. The engineer erred when he figured on a bridge to bear a weight increased by an impact of eighty-one per cent, of live load; that he did so figure is clearly shown by the plans and specifications which call for a bridge to bear a live load of sixteen tons with an impact of eiglity-one per cent. The engineer again erred when he figured sixteen tons as live load; he should have figured, according to the weight of the testimony, twenty-four tons live load with impact twenty-five per cent. The result was that he really got a bridge which may be eminently fit and proper for the locality, but by reason of its form of construction, at a cost much greater than if some other plan had been adopted. It is said that by reason of the use of the bridge by the trolley cars some six inches of concrete over the entire bridge was necessary, moré than otherwise would be, this, because of the ties upon which the rails rest increasing the depth of the floor some six inches. The cost of this figured up amounts lo the sum of $202. I do not think complainant is responsible. The testimony without contradiction is to the effect that complainant did not want ties; they were put in without consultation with it. The experts agree that it is better construction to lay the rails directly upon the girders, for one reason that there is nothing to rot, whereas, if wooden ties are used, in case of deterioration, the entire concrete base and cover must be taken out. The fact is that a great deal more concrete was rendered necessary because no reinforcement was used. This not only increased the amount of concrete but also the dead load of the bridge and made necessary a greater amount of metal. For this complainant is not responsible. The experts agree, and the court will almost take judicial knowledge of the fact that good practice require that reinforcement should be used in a case like this. An attempt was made by the county through the testimony of its engineer to show that the bridge was constructed wider because of its use by complainant. The testimony demonstrated that the engineer did not know his own bridge. The proof is clear that the bridge is precisely the same width as was the old bridge.

I think I have said enough to indicate my reasons for concluding that the master erred. He seems to have taken the statement of the expert of the county that a bridge could be built to accommodate ordinary traffic for three or four thousand dollars less than the bridge that was built as proof of the amount that tbe complainant should contribute, and in this I think he erred. There was no attempt to prove the kind of bridge or the cost of it that the county would have built if there was no trolley service to be provided- for. All of the evidence is before me and there will be no re-reference.

I will advise a final decree upon the testimony before me. I cannot find that the county has proven by evidence worthy of serious consideration that the county was fairly obliged to expend'more than the sum of $302.40 for this bridge, by reason of the fact that it was.obliged to accommodate complainant’s trolley cars.

Settle the decree on notice.