text:
    Philip I. Marvel, respondent, v. Nettie Fralinger et al., appellants.
    [Argued July 7th and 8th, 1904.
    Decided October 6th, 1905.]
    1. Where a complainant, by his bill, prays for an answer without oath, and at the same time in the body of his bill addresses to the defendant certain interrogatories, which the defendant answers under oath, such answers have not the effect either of a sworn answer to the complainant’s bill or of answers to interrogatories annexed to the bill and propounded under the statute; at most, such answers, as to matters-of fact so sworn to, constitute an e® parte affidavit, which, if read without objection, may be treated as evidence in the cause.

      2. Upon a bill filed for the specific performance of a contract to convey land, a decree that the defendant convey, at a specified price, will be reversed if unsupported by competent proof of an agreement to that effect made by the defendant.
    On appeal from a decree of the court of chancery, entered upon the recommendation of Yice-Chancellor Reed, whose opinion is reported in 65 N. J. Eq. (20¡ Diclc.) 161.

    Four persons, to wit, the complainant, the defendant, John L. Young and Stewart R. McShea, were the owners, as tenants in common, in equal shares of a tract of land in Atlantic City, upon which there was a mortgage of $43,000. Kegotiations between the complainant and the other tenants in common for the purchase by him of their three-fourths interest resulted in a written agreement under which Young and McShea appear to have conveyed their interest to the complainant. The defendant having refused to convey her interest for the sum tendered to her by the complainant, the present suit for specific performance was instituted against her, in which the substantial dispute is whether the defendant had agreed to convey her one-third interest for one-third of the cash consideration mentioned in said agreement, less one-fourth of the said $43,000 mortgage.
    The decree of the court of chancery was to the effect that she had so agreed; from this decree the defendant has appealed.

      Mr. Edmund B. Learning, for the appellants.

      Mr. Clarence L. Cole, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

On Kovember 3d, 1899, Philip I. Marvel filed his original bill of complaint against Kettie Fralinger for the purpose of compelling her to make a conveyance to him in specific performance of a written agreement touching the sale of land set forth in a schedule attached to the complainant’s said bill. The agreement thus attached to the bill of complaint and sought to be enforced was made by John L. Young and wife, Stewart B. McShea and wife, and Nettie Fralinger and husband, parties of the first part, as vendors, to Philip I. Maawel, party of the second part, as vendee, and contained, in addition to a description of the land and a promise by the vendors to convey their interest therein, a statement of the consideration to be paid therefor by the vendee, which was stated as “the sum of $182,250, and the further consideration of the party of the second part assuming and agreeing to pay a mortgage of $43,000 on the premises.” This agreement was dated June 25th, 1899, and was signed by all the vendors. The bill of complaint alleged a tender by the complainant of the amount due to the defendant under the terms of this agreement and her refusal to convey.

On January 5th, 1900, the defendant answered, admitting the making of the said agreement as set forth in the bill of complaint, but denying that the complainant had tendered - the amount due to the defendant under the terms of the said agreement, in that the complainant, instead of tendering one-third of the cash consideration provided by the said agreement, had tendered to her such sum, less one-fourth of the $43,000 mortgage mentioned therein, whereas the defendant averred that the said agreement provided that the assumption of said mortgage should be in addition to- the said cash consideration, not that it should be deducted from it.

Two years and six months after the filing of this answer, to wit, on July 28th, 1902, the complainant exhibited an amended bill of complaint against the defendant to compel her to make a conveyance- to him in specific performance of two writings annexed to such amended bill, the first of which (called Exhibit A) was the agreement already described as attached to complainant's original bill, the second (called Exhibit B) being as follows:

“Exhibit B.
“Whereas, a certain agreement has been made for the sale of lands located in Atlantic City, New Jersey, between Massachusetts avenue and Connecticut avenue, adjoining the boardwalk, which bears date August 25th, 1899, between Stewart B. McShea and wife, John L. Young and wife, and Nettie Fralinger and husband, of the one part, and Philip I. Marvel, of the other part, as by reference to said agreement will more fully appear:
“And Whereas, the said agreement, as by the terms thereof, fixes the consideration to be paid for the interests of the parties of the first part in said land at the sum of one hundred and eighty-two thousand two hundred and fifty dollars;
“And Whereas, the parties of the first part to the said agreement have given a receipt to said Philip I. Marvel for the sum of thirty-two thousand two hundred and fifty dollars, which sum of money has not in fact been paid to the said parties of the second part, but was given in acknowledgment for the services rendered, according as agreed and as a benefit to said Marvel, whereas only ten thousand dollars was paid at the time of the signing of the second agreement;
“Now this agreement witnesseth, that the true consideration for the transfer of said property is the sum of one hundred and fifty thousand dollars, and not the said sum of one hundred and eighty-two thousand two hundred and fifty dollars, as stated in said agreement, and that upon the settlement, under the terms of said agreement, only the sum of one hundred and fifty thousand dollars, less the mortgage, is to be paid.
“In witness whereof, we have hereunto set our hands and seals this twenty-fifth day of August, a. d. eighteen hundred and ninety-nine.”
[l. s.]
[l. s.]
[l- s.]
[L. S.]
[L. S.]
[L. S.]
[L. S.]

To this amended bill the defendant answered that Exhibit B had never been signed by her and that there was no mistake in Exhibit A as to tire statement of the consideration therein contained. The defendant’s answer also set up as new matter a further -agreement, in writing, dated August 25th, 1899, and signed by all of the vendors, in which the consideration-was stated to be “the sum of $150,000 and the further consideration of the vendee assuming and agreeing to pay a mortgage of $43,000 on the premises,” which the answer averred was the original and only agreement between the parties until it was superseded by Exhibit A, which, though dated as of June 25th, 1899, was in fact not executed until September 16th of that year. Inasmuch as the agreement of June 25th, 1899 (Exhibit A) and the agreement of August 25th, 1899 (defendant’s exhibit), each called for the payment of the $43,000 mortgage, in addition to the cash consideration named in each agreement, while Exhibit B declared that said sum of $43,000 was to be deducted from the cash consideration agreed to by the parties, it is evident that the point at issue under the amended bill and. answer was whether, by any writing signed by the defendant, it was shown that she had agreed to make a conveyance upon the pajunent to her of one-third of the cash consideration named in the agreements, less one-fourth of the sum of $43,000.

The complainant contends that Exhibit B so modified the agreement contained in Exhibit A as to constitute such a promise. The defendant denies the validity of this contention, while also denying that Exhibit B was in fact ever signed by her.

In the opinion delivered in the court of chancery the attention of the learned vice-chancellor was mainly, if not wholly, directed to the issue of fact so raised by the defendant, viz., that she had not signed Exhibit B. The conclusion reached upon the testimony was that Exhibit B had been signed by the defendant, in which conclusion we concur. A question, that troubled the learned vice-chancellor, viz., whether the sworn answers of the defendant to certain interrogatories did not throw upon the complainant the burden of supporting his own testimony by special corroboration, is not, it seems to us, in the case. The complainant had prayed for an answer without oath, and in the body of his bill had addressed certain interrogatories to the defendant. These interrogatories, notwithstanding the prayer of the bill, were answered by the defendant under oath. This circumstance, however, could not impart to the answers so given the effect either of a sworn answer to the complainant’s bill or of answers to interrogatories that had been annexed to the bill of complaint and propounded under the statute; at most, such answers, as to the matters of fact so sworn to, constituted an ex parte affidavit, which, if read without objection, might be treated as evidence in the cause.

The fact that the defendant signed Exhibit B being established, a further question arises that does not appear to have received much consideration in the court below, viz., whether there is any competent proof of an agreement by the defendant to convey to the complainant one-third of the premises for one-third of the money consideration stated in Exhibit A, less one-fourth of tire $43,000 mortgage mentioned therein, which was the decree of the court below. It is said that Exhibit B, having been signed by the defendant, affords such proof. Exhibit B, it is true, in making certain statements touching tide meaning of Exhibit A, makes the statement that upon a settlement under its terms only the sum of $150,000, less the mortgage, is to be paid; but Exhibit A, it must be remembered, was an agreement by three persons to convey “an undivided three-fourths interest,” and hence could not be altered in airy material respect by the mere declaration of one of its signers. Moreover, Exhibit A, when tendered to the complainant, was, according to his own testimony, never accepted by him, and hence at the time Exhibit B was signed was non-existent as an agreement, and did not have such vitality imparted to it by the mere contradiction of its terms by one of its signers. Furthermore, Exhibit B shows on its face that it was intended to be the joint act of all the original signers of the agreement to which it referred, as obviously it must be if its terms were to be incorporated into such agreement, or if the terms of such agreement were to be incorporated into it. In fine, Exhibit A never was an agreement between the parties to it and did not become so by force of the signing of Exhibit B by the defendant; while Exhibit B, on the other hand, standing alone, was a mere declaration, and not an agreement at all; it.contained no promise to convey; it was without consideration, and it imported no mutality of obligation; at most, it was the mere statement by the defendant that an unaccepted agreement of herself and two others meant exactly the opposite of what its makers, by signing it, had said that it meant. Upon such proof a court of equity should not decree an enforced conveyance of land.

The result of these considerations is that the decree of the court below, by which the defendant was obliged to accept in payment for her land one-third of the money valuation placed upon it by the parties to its sale, less one-fourth of the sum of $43,000, must be reversed because unsupported by any competent, i. a., written, proof of any agreement to that effect made by the defendant or upon her behalf.

It'will not be amiss to add that this result is entirely due to the complainant's intentional obscuration of the real agreement between himself and the other owners of the land. This is made clear by his own testimony. From this source it appears that early in the transaction by which he was to acquire sole ownership of the land the complainant had sold to one Hum-burg one-half of the property, at the rate of $243,000 for the whole;1 that is to say, $200,000, which was the valuation of the entire tract by its four owners, plus $43,000, which was represented by a mortgage, which, as between the owners, was to be deducted from the $200,000, so- that three-fourths of this mortgage would be deducted from $150,000, which was three-fourths of the whole valuation, and not assumed in addition to it, as was made to appear by the written agreements upon which the complainant's bills were based. The persistent effort to keep up this latter fiction, in view of possible contingencies in the deal with Humburg, by swelling the apparent price paid by the complainant for the property to the extent of the $43,000 mortgage, while at the same time providing for a modus of settlement between the parties themselves upon the basis that the $43,000 mortgage was to be deducted from the consideration, resulted, not unnaturally, in the absence of any written evidence of the agreement, which the complainant now seeks to enforce.

Whether tire course pursued by the complainant with respect to the written agreements should not of itself have led the court of chancery to deny to him its ’ aid for their enforcement has been duly considered, but inasmuch as the result will be the same1 it has been deemed best to decide the cause upon' an issue presented by the pleadings of the parties, rather than upon a ground not so raised and upon which the complainant may urge that he has not been fully heard.

The decree of the court of chancery is reversed, and the complainant's bill directed to be dismissed.

. For affirmance — Pitney, Bogert, Vroom, Green — 4.

For reversal — Ti-ie Ci-iiee-Justice, Dixon, Garrison, Fort, Swayze, Vredenburgh — 6.


source: Caselaw Access Project

author: Fort, J.

license: Public Domain

text:
    Salina A. Charlton, appellant, v. Columbia Real Estate Company, respondent.
    [Argued March 16th, 1904.
    Decided March 6th, 1906.]
    A signed but undelivered lease may be given in evidence to prove an agreement upon the details of a lease, pursuant to one of the terms of a previously signed memorandum in writing of an oral agreement for a lease; and if said previous memorandum of agreement for a lease and the signed but undelivered lease, taken together, show a completed agreement upon the terms of a lease, the statute of frauds is satisfied, and specific performance may be decreed.
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 61¡. N. J. Eq. {19 Diclc.) 6S1.

      Mr. Allen B. Endicoll and Mr. Enoch A. TLigbee, for the appellant.

      Mr. George A. Bourgeois, for the respondent.
   The opinion of the court was delivered by

Fort, J.

The bill in this case is filed for the specific performance of an alleged agreement to make a lease. The written memoranda in evidence to prove the alleged agreement consisted of two writings, as follows:

“Agreement made this seventh day of May, between Columbia Real Estate Co., of the first part, and Mrs. Charlton, of Atlantic City, of the second part, witnesseth, that the party of the first part will make a lease for ten years of a certain building on their grounds in rear of stores, to contain about eighty feet in width by one hundred feet in depth, with a fourteen feet entrance from boardwalk, the consideration to be a rental of twelve hundred dollars per annum, payable yearly in advance, lease to date from June 15th, 1901. The party of the first part to be put to no expense whatever in this matter, and security to be given for the rent.
“Columbia Real Estate Co.,
“By H. J. Bergman, Agt.,
“Witnessed by “S. A. Charlton.
“Ida J. Atkinson.”
“Received, Atlantic City, May 7th, 1901, of Mrs. S. A. Charlton, one hundred dollars on acc. of agreement for lease to be made to Mrs. Charlton, for which details are to be settled on.
“Columbia Real Estate Co.,
“By H. J. Bergman, Agt.”

The vice-chancellor found that these two papers were signed and passed at the same time and relate to the same transaction, and must be deemed parts of one instrument. With this conclusion we agree.

These papers, standing alone, would not justify a decree for specific performance. By their terms it is stated that other details are to be settled between the parties. Unless it was shown, therefore, by other writing signed by the defendant that such details had been agreed upon, the bill must be dismissed.

There. was proof in the cause of negotiations between the parties looking to an agreement as to the details of the proposed lease under the terms of tire writings of May 7th, 1901, and a draft of a lease was offered in evidence, signed by the complainant, which it was alleged embraced all the details under the said writings of May 7th, 1901, as finally agreed upon in the negotiations between the parties. It was not disputed that a draft of lease containing all the details was prepared for the purpose of carrying out the agreement contained in the writings of May 7th, 1901. It was admitted that it was so prepared for the defendant by his attorney. A duplicate of this detailed lease was sent by the defendant to the complainant for her acceptance and signature.

That these details were accepted by the complainant is evidenced by her signature to the paper sent to her, as it appears in evidence. To establish that these details had also been agreed upon and accepted by the defendant, in compliance with the writings of May 7th, 1901, the complainant offered to prove-that the defendant had signed a duplicate of the paper in evidence signed by the complainant. •

To make this proof the complainant called for the production of said duplicate, as signed by the defendant, and upon this point the record is as follows :

“1-Ionry J. Bergman, sworn for complainant.
“Direct examination by Mr. I-Iigbee.
“Q. You are one of the officers of the Columbia Real Estate Company?
“A. Yes, sir.
“Q. You are the Mr. Bergman who had negotiations with Mrs. Charlton, the complainant, are yon not?
“A. I am.
“Q. Book at Exhibit 01 — did you ever see that before?
“A. I think I have.
“Q. When and where?
‘‘A. About the latter part of May, or the early part of June, at Mr. Bourgeois’ office.
“Q. You know whether or not there was a duplicate prepared of that?
“A. Yes, sir.
“Q. Who has the duplicate?
“A. I have it.
“Q. Where is it now?
“A. Mr. Bourgeois has it.
“Mr. Higbee — We ask for the production of the duplicate.
“Mr. Bourgeois — Here it is [producing it],
“Q. [Paper produced by Mr. Bourgeois being handed to counsel for complainant, he shows it to the witness and asks] — ‘Who is Orro 6. Leonard, who has signed his name as president?’
“[Objected to as irrelevant.]
“The Yice-Chancellor — What significance has this?
“Mr. Higbee — We want to show that this lease, in duplicate, was executed by the Columbia Keal Estate Company.
“The Yice-Chancellor — What difference does that make?
“Mr. Higbee — If the lease which was produced to us, having been prepared by their attorney, and which we signed, and also the duplicate, which they acknowledge to be a duplicate, is signed by the defendant himself, it certainly goes to show, it seems to me, that those were the terms agreed upon by the parties.
“The Yice-Chancellor — An undelivered though signed contract, remaining in the possession of the parties bound by it, has no legal efficacy. It is only when the party obligated has passed it over to the other party that it becomes of any binding effect. The paper marked Exhibit G 1 is in no way obligatory upon Mrs. Charlton, because it remained in her possession. The paper here produced on call by the attorney for the defendant is no obligation whatever upon the Columbia Keal Estate Company, because it remained in the hands of .the attorney for the Columbia Real Estate Company. The mere execution gave it no force or effect; it is its delivery that gives it force.”

Ill excluding this offer of proof, we think the learned vice-chancellor erred. The writing was admissible in evidence. This offer was not made to prove a- lease, but to prove by this writing, taken in connection with the writings of May 7th, 1901, that all the terms or details of the proposed lease had been fully agreed upon by writings signed by the party to be charged therewith.

It is clear, as the vice-chancellor held, that the duplicate signed by the defendant’s president could not become a lease until it was delivered, but it was none the less a memorandum in writing, signed by the defendant, showing the details of the proposed lease, as they had been agreed upon between the parties pursuant to the memoranda of May 7th, 1901.

Our statute reads as follows:

“That no action shall be brought * * * (4) upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.'” 2 Gen. Stat. p. 1603 § 5.

The signing by the complainant is immaterial; only the party to be charged therewith need sign. Reuss v. Picksley, L. R. 1 Exch. 342 (35 L. J. 218); 1 Benj. Sales p. 279 § 255; Laythoarp v. Bryant, 2 Bing. N. C. 744; Fry Spec. Perf. § 346; Seton v. Slade, 7 Ves. 265; Hatton v. Gray, 2 Ch. Cas. 164; Green v. Richards, 23 N. J. Eq. (8 C. E. Gr.) 32; Reynolds v. O’Neil, 26 N. J. Eq. (11 C. E. Gr.) 223; Hawralty v. Warren, 18 N. J. Eq. (3 C. E. Gr.) 124, 126; Brooks v. Wentz, 61 N. J. Eq. (16 Dick.) 474; Howland v. Bradley, 38 N. J. Eq. (11 Stew.) 288; Stoutenburgh v. Tompkins, 9 N. J. Eq. (1 Stock.) 332, 334.

Nor is it necessary that all the terms of the contract be agreed to at one time, nor written down at one time, nor on one piece of paper. If all the papers, taken together, contain the whole bargain, they form such a memorandum as will satisfy the statute. 1 Benj. Sales p. 236 § 220; Johnson v. Buck, 35 N. J. Law (6 Vr.) 338, 348; Peck v. Vandemark, 99 N. Y. 30; Ide v. Leiser, 24 Am. St. Rep. 17 ; Raubitschek v. Blank, 80 N. Y. 478; 29 Am. & Eng. Encycl. L. 852 (note 2 for cases).

Nor does it signify to whom the memorandum is addressed; it may be to a third person, and )ret be a good writing to satisfy the statute of frauds. Form is not important. Brown St. of Fr. § 354a; Bateman v. Phillips, 15 East 272; Lee v. Cherry, 4 Am. St. Rep. 800; Moss v. Atkinson, 44 Cal. 3; Hollis v. Burgess, 37 Kan. 487; Moore v. Mountcastle, 61 Mo. 424; Barnett v. McCree, 76 Hun 610; Singleton, v. Hill, 91 Wis. 51.

The reason for this is clear. The memorandum is only necessary to evidence the contract, not to constitute it. As Chief-Justice Tindal says, in Laythoarp v. Bryant, supra, “the contract is made before any signature thereof by the parties.”

The memorandum or note'is only to evidence what the contract was. To prevent perjury as to such contracts, the statute declares that evidence of what the contract was must be contained in some memorandum or note in writing, signed by tíre party to be charged therewith. When the memorandum exists, and is legally given in testimony, it becomes evidence of the contract claimed to have been made. The memorandum is not the contract, but only evidence of the contract.

We think that the complainant had the right to put in evidence the signed duplicate of the detailed proposal for a written lease which she contended had been prepared by the defendant and signed by it. It was evidence of an agreement upon the details mentioned in the writings of May 7th, 1901, and if such writings, when taken together, show a completed agreement for a lease, they satisfy the requirements of the statute of frauds.

This is not a question of the admission of a signed deed in evidence to prove an oral agreement to convey, where no previous written memorandum of any part of the oral agreement exists. Nor is it a question whether the delivery of an undelivered deed, duly signed and acknowledged, said to have been drawn to carry out an oral agreement to convey, will be decreed by the court. The question here is simply this: Will the court, in a suit for specific performance of an oral agreement to make a lease, admit in evidence all the paper writings signed by the parties to the negotiation, even though some of the papers be signed but undelivered instruments, in order to see, when all the papers are taken together, whether they contain the completed terms for a lease as agreed, so that a decree may be made?

We think this question must be answered in the affirmative. Judge Iiarlan, speaking for the supreme court of the United States, in a case where a memorandum of the agreement of sale was made in which details were left to be fixed, and a deed was executed and sent for examination, as the duplicate lease was in this ease, says: “Whatever may be said as to the effect of this deed in passing title, if it was delivered only for the purpose of examination, or if the previous memorandum of sale had been for any reason defective under the statute of frauds, its recitals; coming as they do from the vendor, are competent for tire purpose of showing the precise locality of the property which the memorandum of sale was intended to embrace.” Ryan v. United States, 136 U. S. 68, 84.

Whether, where no signed memorandum of the oral agreement has been made, a signed but undelivered instrument, said to have been drawn to carry out the oral agreement, will alone be resorted to to satisfy the statute, it is not necessary to decide in this case. The courts differ upon that proposition.

In 29 Am. & Eng. Encycl. L. (2d ed.) 855, til. "Verdal Agreements " notes 13 and 18, will be found a citation of all the authorities in the several states affirming or denying that an undelivered executed deed will satisfy the statute. They are so variant that I shall not attempt to reconcile them, and, indeed, it is not necessary to do so upon the only question necessary to be decided in this case.

If Brown v. Brown, decided by this court, can be taken as an authority for an undelivered executed instrument not being a sufficient memorandum to satisfy the statute, which is not decided, still that case is not in conflict with the view here expressed, as there was not there any written memorandum of the agreement to give the assignment there sought to be specifically enforced, unless it was permissible to gather it from the signed but undelivered assignment in evidence alone. Brown v. Brown, 33 N. J. Eq. (6 Stew.) 650.

There was error in the refusal to admit the offer of the signed duplicate of the undelivered lease in evidence, and for this there must be a reversal.

Upon all the other questions raised in the case we think the complainant had complied with the terms of the agreement on her part and that for none of these should specific performance of the agreement have been denied her.

I shall vote to reverse the decree and to remit the record to the court of chancery for further proceedings in accordance herewith.

For affirmance■ — The Chief-Justice, Pitney, Vredenburgi-i, Vrooai, Green — 5.

For reversal — Dixon, Garrison, Fort, Swayze, Bogert, Gray — 6.


text:
    Mary E. Schlicher, appellant, v. Henry H. Keeler et ux. et al., respondents.
    [Argued June 17th, 1904.
    Decided July 5th, 1905.]
    A valid delivery of a deed conveying land is not shown when it appears that it was the intention of the grantor that such delivery should relate to the date of his death.
    On appeal from a decree in chancery advised by Vice-Chancellor Eeed, whose opinion is reported in -61 N. J. Eq. (16 Dick.) 391.

      Mr. George O. Vanderbilt and Mr. Alan II. Strong, for the appellant.

      Mr. Robert S. Woodruff and Mr. Envin E. Marshall, for the respondents.
   The opinion of the court was delivered by

Fort, J.

Charles Keeler, in his lifetime, executed a deed on October 18th, 1900, conveying to Henry II. Keeler, one of his sons, a tract of land, constituting what he admits to be a valuable farm in the township of Ewing, in the county of Mercer. The deed was drawn by Richard C. Chamberlain, a lawyer, in Trenton. The description was furnished to Mr. Chamberlain some few months before the deed was executed. On the morning of the day of the execution of the deed, Mr. Chamberlain says, George W. Keeler, son of Charles Keeler, called upon him, at his office, and informed him that his father was greatly exercised over the fact that he had not executed the deed, and wanted to know if Mr. Chamberlain would come up to execute it. The deed was drawn on the 18th, from a description which Chamberlain says had been ready for a long time, except two courses, which had only lately been furnished by the surveyor. It does not appear in the proof, other than by inference, who furnished the description to Chamberlain, or who employed him to draw the deed.

After the deed was executed, it was taken by Chamberlain under the circumstances hereinafter stated.

On October 21st, 1900, three days after the deed was executed, Charles Keeler died, and on that day Chamberlain recorded the deed, as he says, of his own motion, without the direction of anyone.

On October 29th, 1900, for a consideration of $1, Henry II. Keeler conveyed a one-half interest in this farm to George W. Keeler, and this deed was recorded October 30th, 1900.

Charles Keeler died intestate. The deceased left seven children, five being the complainants and two the defendants' in this suit.

The bill was filed November 2d, 1900, and prayed for a decree that the deeds from Charles Keeler to Henry II. Keeler, and from Henry II. Keeler and wife to George W. Keeler, be declared fraudulent and null and void, and that the complainants be each decreed to be seized and possessed of an undivided one-seventh interest in the lands mentioned in said deeds; and that said Henry H. Keeler and wife, and George W. Keeler and wife, be required to deliver up the said deeds that the same may be canceled, or that they be required to reconvey to each of the complainants an undivided one-seventh interest in the lands in question.

At the time the deed to Henry was executed by Charles there were present, besides Mr. Chamberlain, George W. Keeler, one of .the defendants, to whom a half interest in the farm was .afterwards conveyed, and Louis Keeler, a brother of Charles. They have all testified, and are the only witnesses.

The decree of the court of chancery was that the bill be dismissed.

The proof in the cause is in a very narrow compass.

Mr. ■ Chamberlain testifies that the grantee was blank in the deed when he took it to the intestate’s house, and that, after reading it and receiving directions to insert the name of Henry H. Keeler, he went over to the window sill and wrote the name in, and that Mr. Keeler, who was sitting by the fireplace, walked across the room to the window and signed his name and acknowledged it, and then went back and sat in a chair by the fireplace. Then his testimony proceeds as follows:

"A. I handed him the deed and I told him I wanted him to make a delivery to me.
“Q. Just repeat the language you used to him — how did you address him?
“A. I handed the deed to him, and said, ‘Mr. Keeler, I want you to deliver this deed to me as the agent of Henry, the granteeand he had the deed and handed it to me, and he said, ‘You will hold it, or keep it until the last day?’ and I said, T will.’
“Q. You said to him, ‘Mr. Keeler, I want you to hand me this deed, to hold or keep it as the agent of Henry?’
“A. No, sir; T want you to deliver this deed to me as the agent of Henry, the grantee.’
“Q. That is all right; now, what did he say?
“A. He handed it to me; he handed me the deed, and he said, ‘Keep it until the last day.’
“Q. Did he say anything else?
“A. About that?
“Q. Yes.
“A. No, sir; I don’t think he did; X don’t remember anything else.
“Q. What did you say?
“A. I told Mm li« could rest assured of that, or something to that effect; he could rely on that; he need not think of that.”

George W. Keeler differs very little in his statement. This is what he says:

“Q. Then what happened?
“A. Then Mr. Chamberlain — he completed the writing to the paper, the acknowledgment, and my father seated himself again, and Mr. Chamberlain seated himself opposite him, and he filled up the paper and handed it to my father.”
“Q. Yes, go on.
“A. So my father, he then handed it back to Mr. Chamberlain, and he says, using his expression again, ‘You hold that until the wind leaves me;’ and Mr. Chamberlain says, ‘Mr. K'eeler, what do you mean by that?’ ‘Well,’ he-says, ‘I want you to take it home with you and hold it;’ Mr. Chamberlain says to my father, now, he says, ‘Mr. Iieeler, do you hand me this as the agent of Henry, to hold for Henry, and deliver it upon your death?’ and my father says, ‘Yes, sir;’ Mr. Chamberlain then placed the deed in his pocket and he comes to Trenton with it.”

Mr. Louis Keeler, the other witness on this subject, testified as follows:

“Q. Then what was said by either Mr. Chamberlain or Mr. ICeeler?
“A. Why, they walked back again to his seat, and then Mr. Chamberlain did some writing there — signed some name — and then he folded up the paper and gave it to Mr. Ixeeler, and told him to hand it back to him, to hold it for him — to hold it — and he said, ‘Yes;’ so Mr. Chamberlain handed him the paper and Mr. Iveeler handed it back to Mr. Chamberlain again.
“Q. Mr. ICeeler handed the paper back again?
“A. Yes, sir.
“Q. And what was said?
“A. He told him to hold it until later on.
“Q. What was the expression used?
“A. ‘Hold it to the last day,’ or something like that.
“Q. Some such expression as Mr. Chamberlain has testified to?
“A. Yes, sir; something like that.”

Mr. Chamberlain was recalled and an effort made to get him to change the substance of his testimony, but he adhered to it as above given.

This review of the testimony makes it clear that Charles Keeler did not intend to make a present delivery to Henry by handing the deed to Chamberlain. No evidence is given of a single statement by him that indicates such an intention on his part. He did not ask Mr. Chamberlain to take or carry the deed away. He made no voluntary request of him to taire the deed or make delivery of it. Every utterance of Charles Keeler was in response to some suggestion. Mr. Chamberlain says, after describing how the deed was signed, “I handed the deed to him and said, ‘I want you to deliver this deed to me as the agent of Henry, the grantee/ ” And he says that thereupon Mr. Keeler handed it to him and asked, “You will hold it or keep it until the last day ? and I said, T will/ ” In another place he states that Mr. Keeler said, when he handed him the deed, “Keep it until the last day.” And that he (Chamberlain) replied, “He could rest assured of that; he could rely on that; he need not think of that.”

Can there be doubt of the fact that these statements, coming from his legal adviser, satisfied him that he still held the title to the property? Upon the proof I am clear that Charles Keeler did not believe he was making a present delivery of the deed by thus leaving it in the hands of Chamberlain. It is inconceivable that he intended, by the mere handing of the deed to Chamberlain under the circumstances detailed, to presently vest the title in the land in Henry H. Keeler and divest himself thereof.

The proof establishes, to my satisfaction, that he did not make a delivery of the deed.

A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. To constitute a good delivery, it must appear from the circumstances of the transaction that it was the grantor’s intention to part with the deed, and thereby put the title in the grantee.. 1 Devl. Deeds § 262; Crawford v. Bertholf, 1 N. J. Eq. (Sax.) 458, 467; Folly v. Vantuyl, 9 N. J. Law (4 Halst.) 153, 159 (Chief-Justice Ewing); Farlee v. Farlee, 21 N. J. Law (1 Zab.) 285; Maynard v. Maynard 10 Mass. 456; Mills v. Gore, 20 Pick. 28; Stilwell v. Hubbard, 20 Wend. 44; Masterson v. Cheek, 23 Ill. 72, 76.

Praucl was not relied upon on the trial below, nor is it urged here; but the. circumstances surrounding the making of this deed, however, require us to give to the words employed by Charles Keeler, at the time the deed is alleged to have been delivered, every intendment against the claim that there was a present delivery.

It was suggested that this conveyance from Charles Keeler to his son Henry could be sustained as a grant to take effect after his death, but we are unable to see how this could be, except it be considered in the nature of a testamentary devise, and as it is not in the form required by our statute of wills for such a devise, to so hold, to use the language of Chief-Justice Gummere, “would be to practically repeal the statute of wills.” Stevenson v. Earl, 65 N. J. Eq. (20 Dick.) 721.

The decree will be reversed and the record remitted to the court of chancery, with directions to that court to enter a decree setting aside the conveyance of Charles Keeler to Henry H. Keeler, and of Henry H. Keeler and wife to- George W. Keeler, and declaring them to be null and void.

Sor affirmance — Ti-ie Chief-Justice, Pitney, Bogbrt — 3.

For reversal — Dixon, Garrison, Poet, Yredenbuegi-i, Yroom, Green — 6.


text:
    Michael Brady, respondent, v. Carteret Realty Company, appellant.
    [Argued July 1st, 1904.
    Decided April 8th, 1906.]
    1. At a judicial sale the rule of caveat emptor applies, and the purchaser buys only such estate or interest as the debtor has.
    ' 2. A sheriff's deed passes the same title which a deed of bargain and sale, executed by the judgment debtor, would pass.
    3. A person claiming to have an interest in land being sold at a judicial sale, whether such person be a judgment creditor or otherwise, may, at such sale, state facts as to the property about to be sold, when such facts relate to the title, possession or the alleged right of possession thereof. Such statements cannot be deemed inequitable, oppressive or a slander of the title, but a failure to so do will not work an estoppel of the assertion of any right or remedy which such judgment creditor or other person in interest may have in such land.
    4. But it ife inequitable for a judgment creditor, or other party in interest in the land sold, to not only state facts, but to express an opinion as to the title, which injures and prejudices the sale of the interest which the debtor has or which will pass under the conveyance by the sheriff or other officer.
    5. It is inequitable for a judgment creditor, while using the process of a court of law to collect its debt, to avail itself of the occasion of the sale to start a question of title,' to cheapen what it irroposes to sell, and a court of equity will enjoin it from pursuing the legal process until such question of title is settled.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 66 N. J. Eq. (SI Dick.) SJ^S.

      Messrs. Collins ■& Corbin, for the appellant.

      Messrs. Ephraim Cutter and Willard P. Voorhees, for the respondent.
   The opinion of ihe court was delivered by

Fort, J.

This is an appeal from an order of the court of chancery awarding an injunction, pendente Hie, in accordance with the prayer of the hill. The hill is filed under the statute to quiet titles. 3 Gen. Stat. p. 3486.

With the order awarding the injunction we agree, hut we think the reasons given therefor by the vice-chancellor are in some respects erroneous.

’The case was heard on the bill and affidavits, no answer or answering affidavits being filed.

The defendant purchased of the executor of Zabriskie a judgment against the complainant, which it was seeking; to enforce by execution, through a sale by the sheriff of Middlesex county, and at the same time giving out at such sale, or threatening to so do, that the judgment debtor had no interest in the land being sold.

On this point the allegation of the bill is:

“That at the time and place at which said sale was advertised, Edward S. Savage, an attorney-at-law of the state, who is a director of said Carteret Realty Company, and the attorney acting- for said company in selling said lands under said execution, although his name does not appear as attorney of record, stated to the sheriff and those present, in opposing an adjournment, that your orator had no title to said tract of land, and was not the owner thereof, and that an adjournment should not be granted because his interest in said tract by possession was not worth anything, and that the said Edward S. Savage has stated the same thing to other persons, and has stated it in a letter written to said sheriff, and lias also stated to your orator that he intends to give notice- of the same thing on the day of sale of said lands under said execution.”

The affidavit's to the said hill support this allegation, and, among other things, say that, at an interview with the complainant, Savage, the agent and attornoj^- of the defendant, said:

“That he intended, on the clay to which the sale of said tract had been adjourned, to again announce that deponent had no title whatever to said tract and did not own it, but was a mere tenant, and that the Carteret Realty Company was the true owner of said tract.”

And by another affidavit, it is further stated that

“deponent heard Kdward S. Savage state to the sheriff and those present in opposing the granting of an adjournment that said Brady had not title to the lands advertised for sale, and was not the owner thereof, and that the interest of said Brady in said lands was only by possession and was not worth anything, and that the Carteret Realty Company was the true owner of said lands.”

And it is further sworn that at an interview with said Savage, held after the adjournment of the sale, on the first advertised day, he said that

“he intended, on the day to which the sale of said tract had been adjourned, to again announce that deponent had no title whatever to said tract and did not own it, but,was a mere tenant, and to state that the Carteret Realty Company was the true owner thereof.”

Savage was a director of the defendant company and was acting for it.

Statements such as those in the bill and affidavits are more than a mere recital of an alleged claim, of the defendant; they amount to an expression of opinion as to the title of the judgment debtor, and an affirmance that he is without any legal right whatever.

At a judicial sale the rule of caveat empior applies, and the purchaser buys only such estate or interest as the debtor has. Boorum v. Tucker, 51 N. J. Eq. (6 Dick.) 135; S. C., 52 N. J. Eq. (7 Dick.) 587; Campbell v. Parker, 59 N. J. Eq. (14 Dick.) 342; Snell Eq. 389.

The vice-chancellor, in the opinion below, on this point, states the true legal rule, when he says: “The sheriffs deed passes the same title which a deed of bargain and sale executed by the judgment debtor would pass.” 3 Gen. Stat. p. 2080 § 7; Laws of 1799 p. 486 § 12 (Pat. L. p. 371); 1 Nevill p. 280 § 6; Hackensack Savings Bank v. Morse, 46 N. J. Eq. (1 Dick.) 161; 47 N. J. Eq. (2 Dick.). 279; Voorhis v. Westervelt, 43 N. J. Eq. (16 Stew.) 646; Den v. Winans, 14 N. J. Law (2 Gr.) 1.

It is undoubtedly within the right of’ a person claiming to have an interest in the land being sold at a judicial sale, whether such person be the judgment creditor or otherwise, to- state any facts as to the property aborzt to be sold, when such facts relate to the title, possession or the alleged right of possession thereof. Such statements can in no sense be deemed inequitable or oppressive, or as a slander of the title, 25 Am. & Eng. Encycl. L. 788.

But it is not essential to a preservation of the rights of a judgment creditor, or other person in interest in the lands of the judgment debtor being sold, that he shall state facts within his knowledge relative to the title or possession of such land at such judicial sale. His failure to do 'so will not work an estoppel of any rights or remedies which such judgment creditor or other person in interest has in such lands.

Judicial sales fire involuntary sales. The officer of the law is the agent of the debtor in effecting the same. Ho does not estop the judgment creditor by his conveyance. Den v. Winans, supra.

The equitable rule, so general and so salutary, which declares “that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent," as applied to the sale of lands, will be found in all the cases to have been so applied in cases of conveyances inter paries, and in no case to have been so extended as to embrace a judicial sale — a sale in inviium.

But we think that an entirely different rule applies from the one just stated, when a judgment creditor or other party in interest in the land sold not only stands by or states facts, but expressed an opinion as to the title which injures and prejudices the sale of the interest which the debtor has or which will pass under the conveyance by the sheriff or other officer. To state facts cannot injure; to express an opinion upon the facts, or without stating the facts, may 'be oppressive and prejudicial. It is certainly inequitable.

In the case sub judice, Mr. Savage did not content himself,' as the representative of the judgment creditor, with merely standing by or with a statement of the facts, but he said, in effect: “It is my opinion, now given for the benefit of all purchasers at this sale, that tire defendant has no title-. He is a mere squatter. A. purchaser will take nothing by the sale. The judgment debtor’s interest is not worth anything. The Carteret Eealty Company is the true owner.”

To permit a judgment creditor to so conduct a sale under his execution is to peimit him to defeat the right of the judgment debtor to sell, at a judicial sale, whatever will pass under the conveyance to the purchaser, and thereby secure thereat what an unalarmed purchaser may be willing to pay.

A judgment creditor will not be permitted to assume to sell real estate and declare, as a conclusion of law or as an expréssion of opinion upon facts, that nothing will pass by any conveyance which may be made by the sheriff to the purchaser at the sale. Whether anything passes by a sale and conveyance of real estate at a judicial sale is a matter in which only the debtor and purchaser are concerned, and they must be allowed to determine that question for themselves from the records or from facts otherwise stated or ascertained.

. The defendant, while using the process of a court of law to collect its debt, has availed itself of that occasion to start a question of title to cheapen what it proposes to sell; it, therefore, is inequitable that the legal process be pursued until such question be set at rest, the complainant having tendered by its bill a prompt opportunity to that end. • The defendant should bo restrained from making the saie until the case made by the complainant’s bill, as to the question of title, is determined.

For these reasons, the decree of the court of chancery should be affirmed.

For affirmance — Tiie Chief-Justice, Dixon, Garrison, Fort, Pitney, Swayze, Bogert, Yredenburgi-i, Yroom, Green, Gray — 11.

For reversal — None.


author: Swayze, J.

text:
    International Silver Company, complainant, v. William H. Rogers Corporation, defendant.
    [Argued July 1st and 5th, 1904.
    Decided March 6th, 1905.]
    1. A corporation, the name of which has been selected with the intent to profit by the trade reputation of another by means of the similarity of names, is not entitled to use its corporate name in a business in which the use thereof is likely to lead purchasers to buy its goods for the goods of those by whose reputation it seeks to profit.
    2. Where a trade name is unlawfully used for the purpose of profiting by the trade reputation of another, the injured party is entitled to relief although he may not have an exclusive right to the use of the name.
    3. The fact that a person has acquired some skill and experience in a business which he has conducted for the purpose and with the intent of profiting unlawfully by the trade reputation of another, does not, as against the injured party, entitle a corporation in which he is interested^ to adopt and use that name in the same business, even though it may be accompanied with additions sufficient to prevent a purchaser from mistaking the goods of one for the goods of the other.
    On cross appeals from a decree and order advised by Vice-Chancellor Stevens, whose opinions are reported in' 66 N. J. Eg. (21 Dick.) 119, 11,0.

      Mr. Edward Á. Day and Mr. Hiram R. Mills and Mr. John P. Bartlett (of the New York bar), for the complainant.

      Mr. Craig A. Marsh, for the defendant.
   The opinion of the court was delivered byr

Swayze, J.

From the decree awarding an injunction, both parties have appealed. From the order denying the complainant an accounting, the complainant has appealed.

We think the vice-chancellor was right in granting the injunction, and the defendant’s appeal from the decree fails; and that he was right in refusing the accounting, and the complainant’s appeal from the order fails. In these respects we have nothing to add to the accurate statement of the law by the vice-chancellor.

We think he erred in refusing to enjoin the defendant from using the word “Rogers” in any form, even as a part of the corporate defendant’s name, in connection with the manufacture and sale of silver-plated table ware, carried on by or on behalf of the corporate defendant.

The question involved is not the right of an individual to use his own name. That question sometimes presents difficulties which can only be met by permitting the use of the name in such a way that it shall not amount to misrepresentatioh as to the goods sold thereunder. The ease does not even involve the somewhat narrower question of the right of a corporation to adopt a name which, when applied to the goods sold thereunder, is calculated to deceive purchasers. The later authorities favor injunctions restraining the use of the corporate name without qualification. North Cheshire and Manchester Brewery Company, Limited, v. The Manchester Brewery Company, App. Cas. 83 (1899); affirming the decision of the court of appeal, 1 Ch. Cas. 539 (1898).

The present case presents the still narrower question of the right to adopt and use a corporate name calculated to deceive, with an intent to profit by the,trade reputation of others.

The defendant corporation did not adopt its name in order to secure the good will of a business which had been built up by William H. Rogers. The facts stated in the vice-chancellor’s opinion, and sustained by -the evidence, demonstrate, in our judgment, that William II. Rogers had engaged in the business of selling silver-plated ware, as far as he can be said to have engaged in that business at all, in view of his other vocations, solely with the object of profiting by the similarity of his name to the name of Rogers, so well known in the trade, to the good will of which the plaintiff had succeeded. William II. Rogers, under the facts of this case, had not acquired a trade reputation for silver-plated ware. lie had had no experience in the actual manufacture; his name was not a guarantee of the excellence of his wares; his experience was little more than that of a mere packer of goods made by others; most of the goods nominally made for him he had never seen or handled; he had had no more to do with the actual sales during the more active part of the business — that during which the Benedicts handled the goods in his name — than to receive a small profit over the manufacturer’s price, a profit which was manifestly paid to him by the Benedicts in order that they might use the name of Rogers, and thereby profit b)1" the trade reputation of the complainant. The name of the defendant could not, therefore, have been selected with a view to retain for the corporation the good will of William H. Rogers. It was selected, in our judgment, solely with the intention of deriving a profit by means of the Rogers name, from the reputation built up by many years of business activity by the predecessors of the complainant..

Such a case is not like that of a natural person using his own name. It is more nearly like the case of a natural person who voluntarily selects a name for his business which may enable him to profit by another’s trade reputation.

In our judgment, the law was accurately stated by Judge Wallace, in the R. W. Rogers Case, 70 Fed. Rep. 1017. In his language, “a body of associates who organize a corporation for manufacturing and selling a particular product are not lawfully entitled to employ as their corporate name in that business the name of one of their number when it appears that such name has been intentionally selected in order to. compete with an established concern of the same name, engaged in similar business, and divert the latter’s trade to themselves by confusing the identity of the products of both, and leading purchasers to buy those of one for those of the other. No person is permitted to use his own name in such a manner as to inflict an unnecessary injury upon another. The corporators chose the name unnecessarily, and having done so for the purpose of unfair competition, cannot be permitted to use it to the injury of the complainant.”

This rule is sustained by the later cases in the federal courts. Garrett v. T. H. Garrett & Co., 78 Fed. Rep. 472; Bissell Chilled Plow Works v. T. M. Bissell Plow Co., 121 Fed. Rep. 357; Wyckoff, Seamans & Benedict v. Howe Scale Co., 122 Fed. Rep. 348.

It was adopted in Connecticut in one of the early cases on this subject (Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manufacturing Co., 37 Conn. 278), and is now established in New York. De Long v. De Long Hook and Eye Co., 35 N. Y. Sup. 509; Charles S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; 39 N. E. Rep. 490.

The last-cited case must be regarded as overruling Scott Stamp and Coin Co., Ltd., v. J. W. Scott Co., Ltd., 15 N. Y. Sup. 325, and Employers’, &c., Co. v. Employers,’ &c., Co., 10 N. Y. Sup. 845, if they are inconsistent.

It is urged that the defendant in this case attempted to distinguish his goods from those of the complainant by various devices, particularly the representation of a red seal and by calling his goods the seal brand. These facts are thought to negative an intent to profit by the reputation of the complainant’s wares. In view of the fact that the goods of the complainant were sold under various brands — “Eagle,” “Anchor,” “Star,” “Scimitar” — we think the adoption of the seal was not well calculated to avoid the confusion incident to the use of the name of Eogers. If the defendant had honestly desired to- avoid that confusion, much more efficient means were available. The defendant was under no compulsion to use the name “Eogers” at all, and if that name had not been used confusion would have been impossible.

The decree advised by the vice-chancellor permitted the corporation to use the name “Eogers” “if the same be made distinctive whenever or wherever used by the prefix ‘W: Henry,’ and the addition of his title of office of president and the words ‘Plainfield, N. J.’ ” He based this result upon the fact that the predecessors of the complainant did business under several names of which .Eogers formed a part, and used various marks to distinguish their wares; upon the fact that one William A. Eogers competes in some degree with the complainant, and the further fact that W. II. Rogers has acquired some degree of skill and experience in the business, or in some of its branches.

The fact that the use of various names and marks by the complainant’s predecessors requires purchasers to discx*iminate in buying goods does not, in our judgment, lessen the right of the complainant to restrain the use of a corporate name calculated to deceive, selected with intent to create confusion. In all of the cases of this kind a nice discrimination would enable buyers to avoid the confusion, for it is seldom that names are selected which are identical. “Similarity, not identitjq” said Mr. Justice Bradley, “is the usual recourse where one party seeks to benefit himself by the good name of another.” Celluloid Manufacturing Co. v. Cellonite Manufacturing Co., 32 Fed. Rep. 94.

The ground upon which the court enjoins the use of the name is that it is likely to deceive, and a nice discrimination is not to be expected from the ordinary purchaser.

The fact’that AVilliam A. Rogers seems to have established a right to use the name does not enlarge the rights of the defendant. As was said by Judge Shipman, in Clark Thread Co. v. Armitage, 74 Fed. Rep. 936 (at p. 943) : “It does not follow, however, because the complainant is not exclusively entitled to use the words ‘Clark’s Spool Cotton,’ that therefore it cannot rightfully enjoin a person who is fraudulently making use of its label. The litigation in regard to dhe Rogers trade mark * * * showed that three distinct corporations were entitled to use the name “Rogers” upon their goods, but it never was supposed by a court that either injured owner had not a right to suppress the use of the trade name by a fraudulent competitor, or that it was an adequate defence that there were other owners whose use was not fraudulent.”

The vice-chancellor cited Baker v. Baker, 115 Fed. Rep. 297, as sustaining the defendant’s right to use William H. Rogers’ name, when properly distinguished, in view of the skill and experience he may have acquired in the business. To this there are two answers: (1) That skill and experience, such as it was, was acquired in his effort to' profit by the reputation of the complainant’s goods. As the vice-chancellor said: “The conclusion is inevitable that up to, or nearly up to, the time of the formation of the Eogers corporation, Eogers was using the name to gain for himself a profit which belonged to another. He was consciously seeking to pass off his goods as the goods of his competitor.” We cannot think that a man who acquires skill and experience under such circumstances is entitled to protection against those whom he has sought to injure. (2) The case differs from the Baker Case. There the defendant changed his business methods, adopted advertisements, packages and labels which met with the approval of the successors of Walter Baker & Company, and so differentiated the dress of his products as to minimize as far as possible the risk of confusion between them and those of the complainant. A part of the corporate name was the place of business, and every person who dealt with the defendant in that case was thereby notified that its business domicile was not the domicile of the complainant. After reciting these facts, the court, in that case, added: “If the name had been selected unnecessarily or for the purpose of illegitimate competition with the complainant, we should not hesitate to enjoin its use. But it was selected without any element of bad faith or unfair use.” In the present case the corporate name was selected unnecessarily, with the intent to make an unfair use of it.

The decree must therefore be reversed and the record remitted to the court of chancery in order that a decree may be made in accordance with this opinion. The complainants are entitled to costs in the court of chancery, to costs in this court on both appeals from the decree for injunction. The defendants are entitled to costs in this court of the appeal from the order denying án accounting.

On appeal of defendant from decree for injunction:

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Pitney, Swayze, Bogert, Yredenburgi-i, Yroom, Green, Gray — 11.

For reversal — Hone.

On appeal of complainant from decree for injunction:

For affirmance — Green—1.

For reversal — Ti-ie Chief-Justice, Dixon, Garrison, Port, Pitney, Swayze, Bogert, Vredenburgi-i, Vhooh, Gray — 10.

On appeal of complainant from order denying an accounting:

For affirmance — Ti-ie Ci-iiee-Justice, Dixon, Garrison, Port, Pitney, Swayze, Bogert, Vredenburgi-i, Vrooh, Green, Gray — 11.

For reversal — None.