text:
    Edward Busch v. Aaron and William Gross et al.
    [Submitted September 11th, 1906.
    Decided September 13th, 1906.]
    1. A hotel proprietor may acquire a right to the exclusive use of the name of a place in conjunction with the word “Inn” for the name of his hotel.
    2. Complainant commenced the business of keeping a licensed hotel in 1903 in a rented dwelling, which subsequently became well and favorably known as “The Metuchen Inn,” the word “Metuchen” being the name of the borough in which the hotel was located. No sign containing the words “Metuchen Inn” was ever placed on the building during complainant’s occupancy, but soon after he .removed to another house he used such sign. Two months after he was so. established, defendants started to operate a hotel in the Old place, and placed new signs bearing the same name on the old place, which had become well and favorably known because of the excellence of complainant’s art as a hotel proprietor.—Meld, that defendants’ use of the name was a deception of the public, and that complainant was entitled to an injunction restraining such use.
    On motion for injunction on return of order to show cause.

      Mr. George 8. Bilzer, for the complainant.

      Mr. James W. Beelcman, for the defendants.
   Pitney, V. C.

The complainant, Busch, claims the exclusive right to use the words “Metuchen Inn55 as a sign or designation of a hotel in the borough of Metuchen, in Middlesex county, and seeks to enjoin the defendants Gross and their tenant, the defendant Herson, from using that designation.

The facts are these:

Complainant, in the.spring of 1903, commenced the business of keeping a licensed hotel in a dwelling never before used for that purpose, known as tbe Robbins homestead, in said borough, of which he was a tenant for a term expiring May 1st, 1906.

He continued that business, and was successful therein.

During his tenancy and occupation the property was bought by the defendants Gross, and on the expiration of his term he left those premises and immediately established himself in the same business in a house on Perth Amboy avenue, in the said borough, and placed a sign over or in front of his building with the words “The Metuchen Inn” upon it, and at the time of the filing of the bill and the making of the motion he was continuing the business there under the name of the “Metuchen Inn.”

It does not appear that any sign bearing the name “Metuchen Inn” was ever placed over or near the house occupied by complainant up to May 1st, 1906. If it was so placed, it was removed by the complainant. Two months later, and after complainant had so located himself in his new premises and put out his sign “Metuchen Inn,” the defendants, having obtained a license to keep an inn or tavern in the premises recently vacated by the complainant, placed a sign in front of the house with the words “Metuchen Inn” upon it, and also placed a similar one at the entrance from the street into the yard. Of this action complainant complains, and asks that the defendants be restrained from using that name.

The solution of the question is not easy. The general rule is that the name of a place cannot be appropriated exclusively by any individual for trade purposes. But this rule has its exceptions. A leading exception is the famous Glenfield starch case. Wotherspoon v. Currie, L. R. 5 E. & I. App. Cas. 518 (1872). There a party had carried on the manufacture of starch at a very small unincorporated hamlet called Glenfield, near Paisley, in Scotland, and built up a trade in starch, which he called the Glenfield starch.

The factory rvas afterwards removed from Glenfield to another location near Paisley, called Maxwelltown.

Another party obtained a local situation in Glenfield, and commenced the manufacture of starch there, which he named Glen-field starch, and put it on the market as such. The new •manufacturer was enjoined by Vice-Chancellor Malins. On appeal to the intermediate court of appeals, the vice-chancellor’s order was reversed by Lord-Justice James. The cause was brought to final hearing-before the vice-chancellor, when he remained of the same opinion, but dismissed the bill in obedience to the decree of the appellate court. The cause was carried to the house of lords, and the claim of the plaintiff was sustained by the unanimous opinion of Lord-Chancellor Hatherly, Lord Chelmsford and Lord Westburjg three strong judges.

In the case of Newman v. Alvord, 49 Barb. 588, and on appeal, 51 N. Y. 18-9, the same principle was applied to the name of a cement manufactured at Akron, a village in the State of New York. The value of the'se cases as precedents does not seem to me to be affected by the apparently contrary view in Glendon Iron Co. v. Uhler, 75 Pa. St. 467; 15 Am. Rep. 599. (Other cases of the use of names of ¡olaces are Lee v. Haley, L. R. 15 Ch. App. 161 ; Seixo v. Provezende, L. R. 1 Ch. App. 192; McAndrew v. Bassett, 4 De G., J. & S. 380; Hine v. Lart, 10 Jur. 106.)

It is to be observed, however, that these were mainly cases of trade marks proper,% and the learning and rules of law governing trade marks must be applied with caution to cases like that now under consideration.

However, that a hotel proprietor may acquire a right in the name of his hotel I deem to be entirely settled by precedent and to be indisputable in reason. The case of Howard v. Henriques, 3 Sandf. 725, decided by the superior court of New York City in 1850, is a valuable authority on this subject. The case was heard before Chief-Justice Oakley and Justices Duer, Mason and Campbell, who agreed with Justice (previously vice-chancellor) Sandford, who heard the case in the first instance, all strong j udges. The court in that instance sustained the exclusive right of the complainant to the use of the name “Irving” for his hotel. In delivering his opinion Justice Campbell uses this language: “If one man has, by close attention to the comfort of his guests, and by superior energj1, made his hotel desirable for the traveler, and caused its name to become popular throughout the land, another man ought not to be permitted to assume the same name in the same town, and thus deprive him who first appropriated the name of some portion of the fruits of that good will which honestly belongs to him alone.”

And Vice-Chancellor Van Fleet adopts the same language in his opinion in Wilcoxen v. McCray, 38 N. J. Eq. (11 Stew.) 467 (at the bottom of p. 468). There, 38 N. J. Eq. (11 Stew.), a person situate somewhat as are the defendants here sought to enjoin a person, the defendant therein, situate somewhat as the complainant is here, from using a name, “Norwood,” for a boarding-house, which that defendant had previously applied to the house occupied by the complainant therein, and the vice-chancellor refused relief to the complainant, remarking: “The defendant, and not the complainant, is the person who first appropriated the name in question. If, in the estimation of any part of the public, the name represents anybody’s skill and attention, it is the defendant’s, and not the complainant’s. If the name is the distinctive badge of anybody’s business or business reputation, it is that of the defendant, and not that of the complainant.”

So here the abstract justice of the case is with the complainant, who gave the defendants’ house all the reputation it ever had. -But the great and only difficulty in the case is in the name which he has assumed. In the case in 3 Sanclf., s-npra, it was the “Irving Hotel.” In the case of Wilcoxen v. McCrea, supra, it was the “Norwood,” or “'Norwood Hall.” Those were names not connected with any place or locality. Here the complainant says in his bill that shortly after opening his hotel in 1903, he adopted the name of “'Metuchen Inn,” and opened said premises under said name, and that 'he was granted an inn and tavern license for said premises under said name, and that he expended a large sum of money in developing the business of the “Metuchen Inn,” and that, by the exercise of his skill as a cook, he attracted to himself by the name of the “Metuchen Inn” a large business at said place, and that all of the time, up to the 1st of May, his business was there conducted under the name of the “Metuchen Inn.” In his affidavit he says, speaking of the Bobbins homestead, that he chose "for the name of his hotel’1 the name of the “Metuchen Inn,” under and by which name the same has been conducted by him since its adoption. Taking all the evidence together, I conclude that the name “Metuchen Inn” was given to the place as well as to the business, and the question is, in part at least, whether the complainant can rightfully complain that the defendants use for their hotel the name which the complainant himself has given it.

Take the case of the “Irving” house. If Mr. Howard, the successful suitor in that ease, had left the “Irving” house and had established another hotel of the same name in another part of the city, could he successfully complain that his successor in the occupation of the original “Irving” house continued the use of the name? Or could Mrs. McCrea, who rented the “Norwood Hall” to Mr. Wilcoxen, successfully complain if he continued to call it “Norwood Hall?” And granting that the two questions just asked must be answered in the affirmative, the question still remains, Can the complainant here, who has named the former hotel with the name of the borough in which it is located, successfully claim that the defendants herein shall not continue to call their place by the name which the complainant gave it ?

But before answering'this question, let us see what the complainant asks by way of relief.

He asks two things: First. That the defendants shall be restrained from using the name “Metuchen Inn” in their business, and second, from displaying the same as a sign on their premises.

Now, I have found that, so far as appears, no sign was ever placed, containing the words “Metuchen Inn,” over the Robbins homestead during the complainant's occupancy thereof, and that he first used that sign on his new place, and that two months after he had so established it in his new place, the defendants placed entirely new signs bearing that name on the old place. Here, then, was the first use by the complainant in connection with his present location of the sign containing the words “Metuchen Inn.”

Under these circumstances, taking all the other matters into consideration, I have come to the conclusion that the defendants ought not to be permitted to continue the use of those signs. That use amounts, under the circumstances, to a statement to the public that the hotel is kept by the complainant, and tends to mislead the public.

I will advise an order that the defendants be restrained from continuing to maintain on or over their premises any sign or signs containing the words “Metuchen Inn.”


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Edmund C. Tooker v. Harold C. Tooker et al., infants by their guardian ad litem.

    [Submitted September 19th, 1906.
    Decided October 4th, 1906.]
    Testator’s will set apart a sum to be invested and the income paid to his parents during their lives. A subsequent clause directed that all the residue be invested for his wife for her life. Provision was then made for legacies to be paid on her death, “the balance of my estate to be invested for the benefit of my father and mother, but, in case they have both died, then all to go to my brother, and at his death what remains to his children—my intention being that after the death of my wife, and my father and mother, that my brother should receive all that remains, and after him his children.”—Held, that the phrase “what remains” did not show an unlimited power of disposition given to the brother, creating an absolute estate inconsistent with the gift to his children, but the children were entitled to receive, on the death of their father, all that he received.
    On final hearing on bill, answer and proofs.

      Mr. Halsey M. Barrett and Mr. Edwin B. Goodell, for the complainant.

      Mr. Harry N. Beeves, for the defendants.
   Pitney, V. C.

The suit is brought by Edmund C. Tooker against his three infant children to obtain a decree against them declaring the complainant to be the absolute owner in fee of a considerable fund consisting of personal securities in his hands as surviving executor of and trustee under the last will of Frank H. Tooker, deceased, who was his brother.

The rights of the parties depend upon the true construction of the will of the testator.

The cause has been well argued on each side, the complainant having very properly caused his children to be well and faithfully represented by counsel.

The deceased by his will, which was written wholly by himself, in its second item sets apart a sum of $10,000 to be invested and the interest applied to the support and maintenance of his father and mother during their lives.

By the third item he gave his watch and chain to his nephew, Harold, one of the defendants herein, and his diamond studs to his niece Mildred, also one of the defendants, and to each of them $500.

By the fourth item he gave all his household furniture to his wife, Catherine, “for her sole use and disposal.”

Then by the fifth item he directed that all the rest and residue of his estate should be invested for the sole use of his wife during her life, in lieu of dower, the same to include, after their death, the fund previously set aside for the benefit of his father and mother.

It is quite evident that he expected his wife to survive his parents, and he proceeds in the sixth item to direct that on the death of his wife (which occurred before that of his father) $1,000 should be paid to a church in Connecticut and a like amount to a church in Montclair, N. J. •

Then comes the clause upon the true construction of which the rights of the parties herein depend, thus—■

“the balance of nay estate to be invested for the benefit of nay father and mother, or either of them, but in case they have both died, then all to go to my brother, Edmund C. Tooker, and at his death, what remains, to his children equally, my intention being that, after the death of my wife, Catherine A. Tooker, and my father and mother, that my brother should receive all that remains, and after him his children.”

The claim of the complainant is that under this language the father took an absolute estate, and hence that the bequest over is void.

Now, it is the duty as well as the pleasure of a court, when called upon to effectuate the intent of a testator, to give effect, if possible, to every part of the testator’s will.

His desire in this case, that the children of his brother, Edmund, should have his estate at the death of their father is just as clear, on the face of the will, as is his. desire that the father should have ,it. Hence, in my judgment, nothing short of a clear and imperative necessity should prevent the court from giving effect to that desire.

The obstacle which the complainant puts in the way of the accomplishment of this desired result is that an unlimited power of disposition is given to the brother by the will, and that power being coupled with an indefinite gift of the legacy to him creates an absolute estate, which absolute estate is entirely inconsistent with the gift to his children. This inconsistency is based on the old principle that a fee cannot be limited after a fee.

Now, I repeat, that before we come to the unwelcome conclusion that we cannot carry out this part of the will of the testator, we should feel very sure that the important element of an unlimited power of disposition lias been intentionally given by the testator in apt words to the complainant, his brother.

In such a case it seems to me that to be in doubt is to be resolved, since, in the absence of a gift of such a power of disposition, the intention of the testator to limit the estate of his brother, the complainant, to a life estate is perfectly clear. ’ Quite as clear, in my judgment, as if he had said, in so many words, that his brother was to enjoy the estate for life only.

The particular language in the will relied upon by the complainant for that purpose is comprised in the two magic words, “what remains;” thus “then all to go to my brother, Edmund C. Tooker, and at his death what remains to his children equally.” The. argument is that these two words, “what remains,” necessarily imply an unlimited power of disposition.

It must be conceded that there are authorities which go to that length, and I will take occasion to examine them farther on, but, of course, we must take the whole will together, and that part upon which complainant relies is immediately followed by a clause of the'same sentence in which the testator makes his own explanation of what precedes it, and states what his intention is, as follows:

“my intention being that, after the death of my wife, Catherine A. Tooker, and my father and mother, that my brother should receive all that remains, and after him his children.’.’

Now, it seems to me, there can be no difficulty about the construction of this member of the sentence. He had given certain legacies to be paid after the death of his wife, which he supposed would take place after the death of his parents, hence he used the words “what remains.” His brother is to receive all that remains after the death of his wife, his-father and his mother, and after his brother his children. That means, of course, that his children should receive on the death of their father all that their father received.

Now, this is not an instance of two different dispositions of property found in different parts of a will and giving rise to the question which shall prevail, and calling for the application of the rule that the last expressed wish of the testator should prevail, the learning of which is spread through numerous decided cases cited in the books. But it is a gloss or interpretation put by the testator himself in his oto language and found in the final clause of disposition in his will. He seems to have thought there might be some misapprehension in what he had already written arising out of the somewhat confused way in which he had dealt with the probability of his wife surviving both his father and his mother and in the use of the words “what remains,” and so he deliberately construed his own will in the language last above quoted, and says, in effect, that he did not mean the words “what remains” to refer to the death of his brother, but to the death of his wife.

I might rest the conclusion at which I have arrived on' that explanatory member of the sentence alone. Brrt respect for the very able argument addressed to me by counsel for complainant induces me to say something as to the proper effect of the words relied upon.

Undoubtedly in construing a will we must strive'to give every word effect, and it is in obedience to this canon that the courts have been led in a very few instances to the conclusion that a testator by the use of the words “what remains,” or their equivalent, must have contemplated that his estate would be diminished in the hands of the tenant for life, or his trustee for the time being, and from that notion the courts have concluded that the testator must have intended to give the tenant for life a power of general disposition over the principal of the estate.

Now, it seems to me that such a construction is somewhat strained, for it leaves out of view the common knowledge that all personal estates, while being held in trust, áre liable to diminution in quantity, not only by the actual cost of their conservation (Pitney v. Everson, 42 N. J. Eq. (15 Stew.) 363), but by what may be termed ordinary wear and tear and loss by accident and depreciation in the value of investments. So that few trustees of personalty are able, after .a moderately long trusteeship, to turn over the estate quite as large as they received it.

In the present case the brother became, in the ordinary course of events, the sole trustee of the fund, and this condition of affairs was plainly contemplated by the testator, and we may well suppose that his brother, while so acting in behalf of himself and his children, might be under the usual disabilities of trustees in respect to maintaining the integrity of the estate, and, naturally, the testator would feel that he ought not to be held to an overstrict account by his children in that behalf.

This consideration, it seems to me, of itself might be quite sufficient to account for the use of the words in question without imputing to the testator the least intention that his brother should have a complete power of disposition.

Turning now to the adjudged cases in England, we filnd them all, previous to 1849, collected with great industry and commented upon by counsel in the case of Constable v. Bull; before Vice-Chancellor ICnight-Bruce, the best report of which is found in 13 Jur. 619. It is also reported in 3 De G. •& S. l/dl, and 18 L. J. Eq. 30A There testator gave all his property of every kind to his wife for her sole and separate nse and benefit, and then in the next separated sentence he directed that “at the decease of my said wife whatever remains of my said estate and effects shall go to and be equally divided, share and share alike, between” several persons, naming them. She died testate of a will and possessed of considerable of the personal estate which she received from her husband. The question was between her executor and the persons named as beneficiaries at her death. The arguments are given in the Jurist at length and all the authorities up to that date were dealt with. The vice-chancellor refused to construe those words “what remains of” as being sufficient. to give the wife a power of disposition. He saj^s: “There are several theories which might be attributed to these words, either of which would be inconsistent with construing them so as to give the widow the power to spend or give away or dispose of the property in question.”

There was an inquiry instituted after that decision as to who were entitled under what may be termed the residuary clause .of the testator’s will. The cause came on for hearing upon the report of the master on that inquiry, and the whole question was reopened and argued before Yice-Chancellor Sir James Parker, 22 L..J. Oh. 182, and he adhered to the ruling of Yice-Chancellor Knight-Bruce.

.This case was followed by Yice-Chancellor Sir Charles Hall in Bibbens v. Potter, 10 Ch. Div. 733 (1879). There was there a gift by the testatrix to her sister for her own use and benefit absolutely, and then followed, by codicil, a provision that “after the death of my sister I give, devise and bequeath all property of mine which may then be remaining” to her brother and another, and it was held, on the authority of Constable v. Bull, supra, and In re Adams’ Trust, 11 Jur. (N. S.) 961, that the gift over was good notwithstanding the words “which may then be remaining.”

In re Adams’ Trust came before Lord-Justices Knight-Bruce and Turner, on appeal from the master of the rolls, Lord Romilly, and is in the same line as Constable v. Bull.

Some of the cases supporting the result in Constable v. Bull are cited at length by me in Bryan v. Bryan, 61 N. J. Eq. (16 Dick.) 45 (at pp. 53, 54) . One of them (not cited by me) reported in a note to 1 Bumf. & 2?. 487, is Hands v. Hands, decided by the master of the rolls, June, 1782. There the testator gave all his property, consisting of personalty, to his wife, and then declared his will to be that his wife should at her decease give unto and amongst his relations what should remain of what he had thereby given and bequeathed unto her, except £400, which she should be at liberty to dispose of as she should think fit. The master of the rolls held that she took a life estate merely, and on a bill filed by the next of kin against her he directed that she should give security, &c., providing for the protection of the next of kin.

I find in the later English decisions no dispositipn to disturb the principle of the judgment in Constable v. Bull and Bibbens v. Potter.

I will now notice the line of cases which are relied upon to establish a contrary result.

What seems to be considered as a leading case is Attorney-General v. Hall, Fitz G. 314, July 5th, 1731, before the lord-chancellor (Hardwicke), the master of the rolls and Chief-Baron Reynolds. The clause of the will there considered is as follows:

“Item. I give and bequeath all my real and personal estate unto my son, Francis Hall, and to the heirs of his body, to his and their use, to be paid unto him in three years after my death, and during that time I make Sir Isaac Newton executor of this my will, and after the said three years expired, I do appoint that my said son Francis shall be executor, and if my said son Francis shall die, leaving no heirs of his body living, then I give and bequeath so much of my said real estate and personal estate as my said son shall be possessed of at his death to the Goldsmith’s Company of London,”

in trust for several charitable uses mentioned in his will; “but my will is that the company shall not give my said son any disturbance during his life.” The testator dies, and after three years Francis Flail takes upon him the execution of the will, and in some time after suffers a common recovery of the real estate. Afterwards he makes his will, and the defendant, his then wife, executrix thereof, and then dies without issue. The arguments of counsel are given at great length, but the opinion of the court (at p. 821) is as follows: “The court was unanimous that the limitation over was void, as the absolute ownership had been given to F. H., ior it is to him and the heirs of his body, and the company are to have no more than he shall have left unspent, and therefore he had a power to dispose of 'the whole, which power was noc expressly given to him, but it resulted from his interest. The words that give an estate tail in the land must transfer the entire property of the personal estate, and then nothing remains to be given over. The bill was dismissed.”

Here it is manifest, from this very incomplete report of the opinion—and Mr. Fitz-Gibbons was not distinguished for accuracy or reliability as a reporter (see The Reporters, by John William Wallace, p. S68-)—that the judges, though they may have relied upon the words “as my son shall be possessed of at his death,” yet'they also relied upon the absolute character of the transfer of the personal property to him without any trustee to preserve it. And then there is the declaration that the devisee in remainder “shall not give my said son any disturbance during his lifetime,” which tends to support the idea of a power of disposition.

That case was cited and dealt with in Constable v. Bull.

In this country we find the subject first arising in Ide v. Ide, 5 Mass. 500 (1809), in which only real estate was involved.

There the devise was to “Peleg Ide and to his heirs and assigns forever.” This was in itself a gift in fee-simple. But in the latter part of the will is found these further words: “And further, it is my will that if my son Peleg shall die and leave no lawful heirs, what estate he shall leme to be equally divided between,” &c.

It will be perceived that the first gift to Peleg was in nowise general or indefinite in its character, but was a gift in fee-simple, and this distinguishes the case from the rule laid down by Justice Depue, in Downey v. Borden, 36 N. J. Law (7 Vr.) 460 (at p. 466), in these words: “As a rule of construction, the principle is entirely settled that where lands are devised in the first instance indeterminate as to the quantity of the estate,” &c.

It is further to be observed that the devise over is not of the estate devised to Peleg, but of what estate he shall leave. This was an attempt by the testator to devise land which, peradventure, Peleg himself might have acquired in his lifetime. And it is further to be observed that the suit was not against Peleg’s devisees or heirs-at-law, but against persons to whom Peleg had convej-ed the premises in fee-simple. Chief-Justice Parsons (at p. 504) treats the limitation over as if it was of the estate devised to Peleg, and he cites Attorney-General v. Hall, and held that Peleg took a fee-simple.

I am unable to construe that case as governing the present, even if we did not here have the explanatory clause to which I have referred.

The next ease to which I refer is Jackson v. Bull, 10 Johns. 19 (1813). In that case the devise was, as in Ide v. Ide, supra, to his “son Moses and to his heirs and assigns forever,” and by a subsequent clause, “in case my son Moses should die without lawful issue, the said property he dies possessed of I will to my son Young.”

It is here to be observed_ that the devise over is quite similar to that in Ide v. Ide, and the court held that Moses took a fee-simple, and relied on the case of Attorney-General v. Hall, supra.

Coming now to our own state, we have the ease of Naundorf v. Schumann, 41 N. J. Eq. (14 Stew.) 14. There the will of Adam Rienaker was brought before Chancellor Runyon, in which the devise was as follows:

“My will and desire is that all my property, both real and personal, shall be for the sole use and benefit of my wife Julianna after my decease, and in the event of her death, then what shall remain to be disposed of in the manner following,”

giving his executors power to convey and to divide the proceeds among seven persons named. The executors therein named were, during Mrs. Rienaker’s life, discharged and the complainant became administrator de bonis non cum testamento annexo.

After Mrs. Rienaker’s death he filed his bill making only the residuary devisees parties, and asking for construction.

Chancellor Runyon held that the language used gave to the widow the use only of the property during her lifetime, and attributed the use of the qualifying words “what shall remain” to tho fact that some of the personal property was of a consumable character.

But unfortunately the widow in that case had joined with the executors and one or two of the persons named in remainder in a deed of conve3rance of a piece of real estate to a Mrs. Rosenfels, who had paid for the property purchased, and expended money in building a house thereon, of which she was in peaceable possession. The effect of the decision of the chancellor was to destroy her title, and she thereupon filed a bill to quiet her title, which case came on for hearing before Chancellor McGill (Rosenfels v. Schumann, 45 N. J. Eq. (18 Stew.) 383), who came to the conclusion, under all the circumstances, ihat the use of the words “what shall remain” implied a power of disposition and gave the widow a fee-simple, and enabled her to pass the title to Mrs. Rosenfels. We have here, then, two constructions, put upon the same will by two successive chancellors, which are diametrically opposed to each other, and I feel constrained to say that, considering the great hardship of Mrs. Rosenfels’ case, and the pressure it must have brought upon the learned Chancellor McGill, I think that the construction given by Chancellor Runyon is the true one.

One other case in New Jersey deserves mention. Wilson v. Wilson, 46 N. J. Eq. (1 Dick.) 321. There the testator gave .to his “daughter Helena all his estate, both real and personal, to her, her heirs and assigns forever.” In a subsequent sentence he says:

“In case my said daughter Helena should die without leaving any heir or heirs, then it is my will that after her decease I devise the remainder and residue of my estate, whatever it may he, at the decease of my daughter,”

over to Elmira Norton.

The bill, as here, was filed by the devisee, the daughter, against her children, to determine the present title, and Chancellor McGill, after dealing with the argument of the counsel for the complainant based on the words “whatever it may be at the decease of my daughter,” says: “If the conclusion thus contended for be sound, and there be a devise in fee to Helena, with power of disposition, the intention of the testator that she shall have an absolutely unrestricted property becomes clear, and the limitation over would be held to be inconsistent with that estate and void [citing Bosenfels v. Schumann]. The power of disposition. or absolute dominion, however, must be given either by express words or by necessary implication. The will must be construed, if possible, so that all parts of it may stand,, hence if the expression depended upon be susceptible of a fair interpretation that will permit the limitation over io stand, that interpretation should be given to< it. * * * By the use of the words ‘whatever it may be at the decease of my daughter/ the testator may have had in mind changes wrought by investment, for it is as likely that he contemplated a change in the character or nature of the residue as he did a change in its amount. If he contemplated a change in amount, the change may have been increase as well as decrease, and if decrease, the apprehended cause of decrease may have been that which would have possibly been brought about by accident. * * * Nothing unequivocally points to a power of disposition, and I am therefore not justified in saying that it exists. My conclusion upon the whole will is that the daughter took the farm in fee, subject to the executory devise in favor of Blmira Norton.”

I think this reasoning is sound and just, and decides the present case.

The present case is clearly distinguishable from that line of cases which follow Downey v. Borden, 36 N. J. Law (7 Vr.) 460, and are commented upon and followed in Tuerk v. Schueler, 71 N. J. Law (42 Vr.) 331, where an express power of disposition is given, and the courts have felt constrained to refuse to give effect to the testator’s will in a devise over because it was inconsistent with the previous gift in fee.

There is another remark which I feel constrained to make. Shortly after the death of the husband, his widow, Catherine, and his father, Niles H. Tooker, and the complainant applied to the chancellor, in a petition signed by each of them and verified by the complainant herein, for an order of sale for the mansion house and grounds of which the testator died seized, in which petition they state the persons who are entitled to prospective estates therein, among whom are named two of the defendants herein and snch of the children of the complainant as may be thereafter born. That,petition was referred to Master Byington, who reported, inter alia, that the complainant herein “has a prospective estate for life in the premises, contingent upon his surviving both Catherine A. and Niles H. Tooker, and that the children of the complainant then living, and such as may thereafter be born, or their descendants, will become the owners in fee-simple of said land upon the termination of all of said life estates.” That report was confirmed add the property was sold, and the proceeds of the sale, amounting to some $15,000 or $16,000, are, in pursuance of the statute authorizing the sale, held under the control of this court.

It seems to me that that proceeding and the conclusion arrived at by the learned master, and acquiesced in by all the parties, including the complainant, should not be lightly disregarded.

I will advise a decree dismissing the bill, with costs, and, as very properly suggested by the counsel for complainant, a counsel fee to counsel of defendants.


author: Emery, Y. C.

text:
    Mary Freund v. Michael Freund.
    [Decided May 15th, 1906.]
    1. P. L. 190% p. 508 § $0 provides that, in case a husband, without any justifiable cause, shall abandon his wife, and refuse or neglect to maintain her, the court of chancery may decree such suitable maintenance as the nature of the case requires.—Held, that where a husband finally separated himself from his wife, and neglected to cafe for and support her, his act constituted an abandonment within such act, though the wife in the meantime recovered a decree for separation and separate maintenance against him in another state.

      2. A decree for future maintenance of a wife subject to subsequent modification is not a final judgment within the full faith and credit clause of the federal constitution.
    3. In a suit by a wife to recover maintenance against her husband, as authorized by P. L.1902 p. 60S § 20, she cannot recover as additional relief an amount due for maintenance under a foreign judgment.
    4. Where, in a suit by an abandoned wife for separate maintenance, as provided by P. L. 1902 p. 508 § 20, she pleaded a foreign decree granting her a separation from her husband and a weekly allowance for support, and it appeared that the court rendering such decree had jurisdiction of the parties and subject-matter, such decree was conclusive evidence of the husband’s abandonment from the date therein fixed, and was sufficient to establish the abandonment alleged.
    Heard on bill, answer, replication and proofs.

      Mr. Moses J. De Witt and Mr. Edgar A. Martin (of tbe New York bar), for the complainant.

      Mr. Thomas 8. Anderson, for the defendant.
   Emery, Y. C.

The bill is filed by complainant, a resident of New York, against her husband, who resides in this state, for maintenance and support. The bill sets up an abandonment by the husband in New York (where they both resided) previous to February, 1884, when she brought suit against him in the city court of Brooklyn, and that on February 28th, 1884, by the judgment of that court, they were separated from bed and board, and it was adjudged that the husband pay to her $5 per week during her natural life for her support and that of their infant son, then eleven years of age. The husband appeared and defended in the New York suit, and after the judgment paid the alimony adjudged, until December, 1889, when he left the State of New York, and has since paid nothing for her support, nor has he communicated with her. From that time his place of residence was unknown to complainant, until May, 1904, when she discovered that he was living in Newark, New Jersey, and, as she charges, in adultery with another woman, who passed as his wife, and with whom he is still alleged to be living. On these facts the bill prays the relief of support and maintenance prescribed by the twentieth section of our Divorce act (P. L. 1902 p. 508), and also a decree for the amount due under the New York judgment. On a demurrer to the bill it was claimed that no relief under our statute could be given, for the reason that the judgment in New York decreed a separation from the wife, which the defendant was from that time obliged to continue, and he did not therefore “without any justifiable cause abandon his wife or separate himself from her, and refuse or neglect to maintain. and provide for her,” within the meaning of our statute. Vice-Chancellor Stevens overruled the demurrer on this point, on the ground that “abandonment” under the statute meant “a forsaking entirely” of, or “removing entirely” from, the wife, and such “abandonment” occurred when the husband failed to perform the duties of a husband still incumbent on him under the judgment, viz., td support her and to be true to her. He also said that a suit in this state could be sustained to enforce the payment of the amount due under the New York judgment. He cites on this point Bullock v. Bullock, 52 N. J. Eq. (7 Dick.) 571 (Court of Errors and Appeals, 1894), and Bullock v. Bullock, 57 N. J. Law (28 Vr.) 508 (Supreme Court, 1895), as authorities for suits at law on judgments for alimony where the divorce was absolute. The marital relation still existing, he held that the suit must be in equity. The objection taken on demurrer, that there was no “abandonment” under our statute, is renewed on final.hearing, but must be overruled for the reason given by Vice-Chancellor Stevens. A further objection, not considered on the demurrer or in the Bullock cases, is now raised to a recovery of the amount alleged to be due on the decree. It appears by the record of the judgment, now offered in evidence, that it was expressly provided in the judgment that should any event occur materially changing the condition of the parties, or either of them, application might be made for such modification as might be just. This clause of the judgment was not set out in the bill, and on the demurrer its effect was not considered, and it is now claimed that the amount of alimony for the future being thus subject to modification, the amount fixed by the decree or order is not a final judgment as to the amount, nor recoverable as such. Bullock v. Bullock, supra, 57 N. J. Law (28 Vr.) 508, was heard on a demurrer to a declaration based on a judgment of the New York supreme court for future alimony at $100 a month, upon which judgment $1,600 was alleged to be due, and an allegation was made in the declaration that the defendant had promised to pay the amount due. It did not appear that the judgment, either by express terms or by the law of the State of New York, was subject to modification, and the effect of such power of modification upon the finality of the judgment was not considered. The only point' debated was whether an action at law could be maintained on a decree in equity, and the question was held to be settled affirmatively by the previous decision in Bullock v. Bullock, 57 N. J. Eq. (7 Dick.) 561. In this case, on demurrer to a bill to establish the same judgment for alimony as a lien on lands in New Jersey, this relief was refused, and the retention of the bill for the payment of the alimony was also refused upon the ground stated by Mr. Justice Magie (at p. 567), that “if by the direction to pay alimony .an indebtedness arises from time to time, as such payments become due, an action at law will lie thereon, and the decree will furnish conclusive evidence of such indebtedness.” The question of the finality of a decree for the payment of money which was subject to modification by the court which made it was not touched, nor could it have been raised, because the judgment in the Bulloch Case was for an absolute divorce, and at the time this decree was made in 1892 and until the act of 1900 (P. L. 1900 ch. 742) no power existed in the courts of New York to modify the alimony-decreed to the wife on an absolute divorce, unless it was reserved on the final decree. Livingston v. Livingston, 173 N. Y. 377, 380 (1903). If, however, the power to modify was reserved in the decree, the court under this reservation could modify the decree for future alimony on an absolute divorce in case-of change of circumstances. Galusha v. Galusha, 138 N. Y. 272, 284 (1893). And at the time of the complainant’s decree in the present case (February, 1884), the court, independent of its reservation in the decree, had no statutory power, after the entry of a final decree in an action for limited divorce, to modify the allowance then given for her support by the final decree. Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463 (October, 1884)- This power of modification in actions for separation was first given by the Code Civ. Pro. § 1771, as amended by P. L. 1895 oh. 891 (Tonjes v. Tonjes, 43 N. Y. Supp. 941), and as to absolute decrees by P. L. 1900 ch. 742, amending section 1759 of the code.

The decree for future alimony being thus subject to future modification, it was not a final judgment within the full faith and credit clause of the federal constitution. Lynde v. Lynde, 181 U. S. 188 (1900). This case decides that where, either by the' decree itself or the statute, a provision for future alimony is subject to the discretion of the court, and the decree or its amount may be modified by the court, it is not, as to the amount of alimony, a final judgment for a fixed sum, such as comes within the'protection of the full faith and credit clause of the federal constitution and statutes. This decision controls the earlier decision in Barber v. Barber, 21 How. 582 (585), relied on by the complainant on this point, and overrules it if it be inconsistent. In the New York court of appeals the court, in deciding the Lynde Case, 162 N. Y. 418, distinguished the Barker Case for the reason that the answer admitted the finality of the decree for alimony as to the amount alleged to be due thereon, and the United States supreme eoui’t, in affirming the decision of the New York court of appeals in the Lynde Case, xnade no comment on the Barber Case.

Whether, independent of the full faith and credit clause, and as a matter of comity, decrees of this character, subject to future modification, will be enforced by actions at law or in equity so long as they remain unrevoked or unaltered, has not been expressly decided in this state. In the courts of some states they have been enforced, but many of the decisions are rested on the full faith and credit clause, and being rendered before decision in the Lynde Case, these decisions are to this extent overruled by that case. The authorities are collected in 1 Whart. Confl. L. (8d ed.) p. 525 § 289c. In a later case, Wagner v. Wagner (R. I.), 57 Atl. Rep. 1058 (1904), recovery of the future alimony on such decree, so long as it was unrevoked, was allowed on the basis of comity. These provisions are provisions for maintenance and are not usually considered as property or property rights, and in the absence of special circumstances more than one year’s arrears will not' be enforced by the court which made the decree. Kerr v. Kerr (1897), 2 Q. B. 439, cited in Lynde v. Lynde, 64 N. J. Eq. (19 Dick.) 736, 757 (Gourt of Errors and Appeals, 1902). In view of this practice it is evident that the questions of the right of action in another court upon such decrees, and the nature of the defences to such action, and the extent of recovery, are matters for such consideration that a decision should not be made upon them in the present case unless necessary. I will not now pass on the question, for the reason that, in my judgment, the present bill must be treated purely as a bill for alimony under our statute, and the decree must be confined to this relief. The bill in this aspect is a bill to enforce a purely statutory right against the defendant, now a resident of this state, and the complainant cannot, in my judgment, have any additional relief to which she may be entitled by reason of the amount due on the New York judgment, or any other property right or claim. Eor relief on such independent claim she must be remitted to her separate and independent action, and the prayer for this relief will therefore be denied, but without prejudice.

Treating the bill as a bill purely for alimony under the statute, the New York decree set out in the bill is evidence of the wife’s right thereto, as was said by Mr. Justice Dixon in a similar ease, Van Orden v. Van Orden, 58 N. J. Eq. (13 Dick.) 545 (Gourt of Errors and Appeals, 1899), and the first question is how far it is conclusive on this point.

This judgment was rendered by a court having jurisdiction in a cause in which the defendant appeared and defended, denying the abandonment, and I think the judgment is conclusive evidence of the abandonment by the husband at the time therein fixed (December, 1881), and sufficiently proves a case of abandonment then commencing. If the former judgment for abandonment had been recovered in this state it would have been conclusive evidence of the abandonment and of the time of its occurrence in a subsequent suit for desertion. Smith v. Smith, 55 N. J. Eq. (10 Dick.) 222, 225 (Vice-Ohancellor Pitney, 1897). And under the federal constitution and laws, the judgment in New York having been rendered by a court having jurisdiction of the parties and the subject-matter, and after a trial on the merits, is conclusive upon the issues determined as the foundation for the judgment of divorce or separation. Bullock v. Bullock, 52 N. J. Eq. (7 Dick.) 561, 567, 575 (Court of Errors and Appeals, 1894) Bullock v. Bullock, 57 N. J. Law (28 Vr.) 508 (Supreme Court, 1895). The same effect is given to such decrees for future alimony in the State of New York. Lynde v. Lynde, 162 N. Y. 405, 418 (1900). Independent of the full faith and credit clause the general principle recognized by all courts is, that in a subsequent action between the same parties as plaintiff and defendant, involving the same issues as those of a former action, the judgment in the former suit, whether in a domestic or foreign court, is an estoppel as to the issues actually litigated and determined in the ffrst section. Cromwell v. County of Sac, 94 U. S. 351, 353 (1876); 2 Black Judy. § 610; Lazier v. Westcott, 26 N. Y. 146, 151 (1862).

The present action of complainant is brought for support under our statute, alleging abandonment continuing from before the commencement of the New York suit (1884) up to the filing of the present bill. The judgment in the New York suit is conclusive evidence of the abandonment from 1881 to the time of the judgment, and complainant by setting out this judgment in her bill and claiming the benefit of it will be entitled to the estoppel so far as it is such. If she had not claimed this benefit in the bill, but had only offered it in evidence as proof, it might perhaps have been claimed that the benefit of an estoppel was waived, and the judgment would have been only prima facie evidence, subject to be contradicted. The continuance of the abandonment since the decree, by defendant’s failure to pay the alimony directed, his removal from the jurisdiction of the New York court,-and the concealment of his residence from complainant since 1889 and until 1904, is proved by complainant and her son and is not denied by the defendant, who offers no evidence on his own behalf on this point. The complainant has also in this suit, by her own evidence, proved the original abandonment as found by the judgment in the New York suit, and even if the New York judgment should not be held to be conclusive proof on this point, it is certainly corroborative evidence, and in connection with her own evidence and that of her son, as to the circumstances of the discontinuance of the alimony, is sufficient to make out under our statute a case for relief existing at the time of the filing of the bill. As to the amount of alimony, I fix this at $5 per week, to run from the date of filing the bill, as there has been no alimony pendente lite. Alimony from the date of filing bill is within the discretion of the court. Burr v. Burr, 7 Hill 207 (Court of Errors, 1843); Forrest v. Forrest, 25 N. Y. 501, 514 (1862); Burrows v. Purple, 107 Mass. 428, 435 (1871). And this practice has been approved in our courts. Glasser v. Glasser, 28 N. J. Eq. (1 Stew.) 22 (Chancellor Bun-yon, 1877).

I will advise a decree for the payment of the amount thus due at the date of the decree, and for the payment of $5 per week thereafter. Costs and counsel fee, which I will fix at the time of settling the decree, will also be given.


author: Embry, V. C.

text:
    Isaiah Smith v. Gottfried C. Krueger. Gottfried C. Krueger v. Isaiah Smith and John L. Armitage.
    [Decided May 31st, 1906.]
    1. On a bill for the cancellation of a mortgage on the ground that it was given for corporate stock which the mortgagor was induced to purchase by false representations of the mortgagee, evidence held insufficient to show that the alleged representations were made, or, if made, induced the purchase.

      2. On a bill for the cancellation of a mortgage on the ground that it was given for corporate stock which the mortgagor was induced, to purchase by fraudulent representations made pursuant to a conspiracy between the mortgagee and another, evidence held insufficient to establish a conspiracy.
    3. Where a mining corporation transferred stock in consideration of a mortgage by the buyer to a third person, to whom the corporation was indirectly indebted for the mine, the consideration for the mortgage was its acceptance by the corporation as payment for the stock, and the fact that the mino was worthless did not constitute a failure of consideration for the mortgage.
    4. Where, in foreclosure, defendant, by separate suit, prayed cancellation for fraudulent misrepresentations concerning the value of the stock for which the mortgage was given, and sought money damages against a third'person joined as defendant on allegations that he conspired with the mortgagee in making the false representations, it was proper for the court of equity, in the exercise of its concurrent jurisdiction, to retain and dispose of the question of the liability of the third person for damages.
    5. A bill in such case cannot be maintained as to the claim for damages after the expiration of the time limited by law for the commencement of an action at law for the fraud.
    Heard on bill, answer and cross-bill, replication and proofs.

      Mr. Jamas M. Trimble and Mr. John B. Hardin, for complainant Smith and defendant Armitage.

      Mr. Joseph A. Beecher, for Krueger.
   Embry, V. C.

These two causes now heard together are—first, a suit by Isaiah Smith against Gottfried 0. Krueger, and second, a suit on a bill filed by Krueger against Smith and John L. Armitage as co-defendants.

By stipulation, filed at the hearing of these two causes, the evidence taken in a previous cause brought by Krueger against Armitage alone, is to be read and considered, so far as applicable, as if taken at this hearing. Smith’s bill is filed to foreclose a mortgage on lands in Middlesex county, bearing date January 6th, 1894-, given by Krueger to Smith to secure the payment of $4,000 in one year, with interest payable semi-annually, on which the principal, with interest from August 6th, 1894, is due. Krueger’s defence to the foreclosure suit is that the mortgage was obtained by false representations made by Smith to him for the purpose of securing it, and also that it was obtained by a fraudulent combination or conspiracy between Smith and Armitage. A cross-bill for cancellation of the mortgage is annexed to the answer. Krueger’s bill subsequently filed against Smith and also against Armitage (who' was not a party to Smith’s foreclosure suit) sets up substantially the same allegations of false representations against both Smith and Armitage, and claims that by reason thereof the mortgage should be declared void, and also that both Smith and Armitage are liable to repay to him the additional amount, $8,500, which he (Krueger) invested in the purchase of the stock of a mining company, by reason of their false representations in regard to the mine of the company, and their conspiracy to sell the stock to him by such representation. Krueger’s former suit was brought against Armitage alone to recover from him the entire amount so invested, $12,500, which included the amount of the mortgage to Smith. This bill was dismissed without prejudice to an action at law for the reasons given by me in Krueger v. Armitage, 58 N. J. Eq. (13 Dick.) 357 (1899).

The mortgage now in question, although given by Krueger directly to Smith, was given in carrying out a contract made by Krueger, not with Smith, but either with Armitage or a mining company, called the International Asbestos Company, for the purchase of five hundred shares of the stock of that company. The mortgage to Smith was accepted by the company as payment of so much cash to it by Krueger, on account of shares of its stock issued to Krueger. The company owed Armitage on a contract with him for the transfer of his stock to the company, to carry out its contract for stock with Krueger, and Armitage on his part owed Smith, under circumstances to be hereafter stated, for the purchase price of the mine, which had been conveyed by Smith to Armitage and by Armitage to the company. The mortgage made directly by Krueger to Smith was accepted by the company as Krueger’s payment for $4,000 on account of the stock to be issued to him, and this amount was charged by the company to Armitage as a payment on account of stock transferred by Armitage to the company for the purpose of issuing to Krueger, and Smith, on receiving the mortgage from Armitage, gave credit to Armitage for the amount. The false representations made are claimed to have been made in connection with Krueger’s purchase of the stock. This purchase was negotiated between Armitage and Krueger, and Smith had no connection with this contract. As to Smith, Krueger’s claim is based on the allegations— first, that before the delivery of the mortgage Smith made to Krueger false representations as to the mine, which induced him to give the mortgage, and second, that the stock of the company for which the mortgage was given as a part payment, and which was part of the stock purchased by Krueger, was really Smith’s stock, and that the sale of the stock to Krueger was in pursuance of a fraudulent combination or conspiracy between Smith and Armitage to defraud Krueger. On the second ground Krueger, by his cross-bill, claims not only the cancellation of the mortgage, but a decree against both Smith and Armitage for the entire amount invested by him, about $12,500. The facts relating to the purchase of the stock and the giving of the mortgage may be summarized as follows: 1. (After a statement and examination of the evidence the opinion proceeds.)

Hpon the whole evidence I conclude that Krueger has failed to show satisfactorily either that Smith made to him the representations claimed, or that such representations, if made as claimed by Krueger, induced the purchase of the stock. The conclusion which I reach is that Krueger, before any conversation with Smith, had completed the agreement for purchase of the five hundred shares of stock with Armitage, and had, together with the other directors, considered and acted on the matter of the correctness of Woltereck’s report, and that Smith’s general statement, if made under the circumstances stated by Krueger, cannot be considered as inducing Krueger’s contract of purchase or the execution of the mortgage carrying out this purchase.

As to the second claim on which the defence to the mortgage of Smith and the bill against him is based, viz., that the mortgage was given for the purchase of Smith’s stock, and was procured by a fraudulent combination and conspiracy between Smith and Armitage, the evidence fails to establish either of these facts. Smith had no interest in the stock purchased by Krueger, nor did he have any stock in the asbestos company until April, 1894, when he received shares which he was entitled to receive from Armitage under the option. The evidence does not establish Smith’s responsibility for, or connection with, any statements made by Armitage to Krueger for the purpose of effecting the sale of the stock, and although Smith knew of Armitage’s efforts to sell the stock to Krueger, it does not appear that he knew what representations were made by Armitage to Krueger. In making the sale of the stock Armitage was not acting as the agent of Smith, but on his own behalf, or that of the asbestos company. Smith, therefore, cannot be held responsible for any misstatements which may have been made by Armitage. At the hearing it was also claimed that the mine, to Smith’s knowledge, was worthless, and that the whole consideration for the mortgage therefore failed. The proof does not, however, sustain this claim as to the mine, and inasmuch as the consideration of the mortgage, so far as Krueger was -concerned, was its acceptance by the company as a cash payment on his obligation to pay for his stock, from which obligation he has been to that extent relieved, the consideration of the mortgage has not failed.

Defendant Armitage, in addition to a general denial of the charges and allegations against him made in,the cross-bill, sets up two special defences in his answer. First, that he has no interest in the bond and mortgage given to Smith, as was charged in the cross-bill, and that, independent of such interest, Krueger is not entitled to any relief in this court against him by way of damages. As to any such relief the benefit of a demurrer was claimed. The general rule is that jurisdiction in equity in cases of fraud is concurrent with that of the courts of law, and the question of its exercise depends on the whole aspect of the case on the pleadings and proofs. The concurrent jurisdiction is asserted, and the exclusive jurisdiction of courts of law for recovery of damages caused by fraud is denied in Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 264 (Qourt of Errors and Appeals, 1901). In this case the equitable jurisdiction was exercised solely for the recovery of money obtained by fraud. One reason for exercising the jurisdiction was stated to be that the exercise of the jurisdiction had not been objected to in limine as in Krueger v. Armitage, and as has been done in the present case. But in the present case the trial, in this court, of the question of fraud was necessary, because it was set up as a defence to the mortgage and as a reason for the equitable remedy of cancellation sought by the cross-bill in the mortgage suit. The claim for damages, in addition, was based on the same alleged fraud. This issue of fraud on the part of Armitage in the sale being properly here, the court, in exercising its concurrent jurisdiction, should dispose of the issue • of fraud and of damages resulting from it in a single action and for all purposes.

The second special defence set up by Armitage is the statute of limitations, and, in my judgment, this must be allowed. The first bill against Armitage was dismissed on October 5th, 1899, expressly without prejudice to an action at law. No appeal was taken from this decree and no action at law was brought. The last payment made by Krueger for the stock was on March 8th, 1894, and the right of action at law expired on March 8th, 1900. The bill to foreclose his mortgage was filed by Smith on February 20th, 1895, and Krueger’s answer and cross-bill against Smith alone, for cancellation of the mortgage, was filed April 4th, 1895. Proceedings in this suit were delayed pending the hearing and decision of the suit of Krueger v. Armitage, in which, as above stated, Krueger claimed against Armitage for the whole amount invested, including the $4,000 mortgage given to Smith. On November 29th, 1901, the present bill against Smith and Armitage was filed. So far as relates to Smith, the equitable remedy for a cancellation of the mortgage is not affected by the statute of limitations, but so far as relates to the recovery of damages in addition, either against him or Armitage, the statute is a bar. The settled rule is that where the jurisdiction in equity is concurrent with that at law, the suit, if barred at law, is barred in equity. Conover v. Conover, 1 N. J. Eq. (Sax.) 403 (1831); Marsh v. Oliver, 14 N. J. Eq. (1 McCart.) 259 (Chancellor Green, 1862), cited by me in Condit v. Bigalow, 64 N. J. Eq. (19 Dick.) 514 (1903). If the time of the discovery of the alleged fraud be, in equity, the time when the statute begins to run, then the suit was barred in six years after August, 1894.

The bill by Krueger must therefore be dismissed as against both defendants. Smith is entitled to, a decree for the amount due on his mortgage and to a dismissal of the cross-bill filed against him.


author: Emery, V. C.

text:
    Kate Fox v. John Lynch.
    [Decided July 28th, 1906.]
    1. A covenant in a lease not to claim a rebate for alterations to fixtures on the premises does not relate to the tenant’s right to removal of trade fixtures put in by him.
    2. Covenants restricting the tenant’s ordinary right to remove trade fixtures are always strictly construed.
    3. Under a covenant to deliver up the premises at the end of the term in good repair, a tenant can remove old fixtures and replace them again at the end of the term with repairs necessary to make their condition as good as when received or when taken out.
    4. Under a covenant in a lease for the delivery of the premises at the expiration of the term in as good repair as when received by the tenant, reasonable wear and tear thereof excepted, a tenant is not obliged to replace fixtures becoming useless from ordinary wear and tear.
    5. Where a lease of a saloon stipulated that the lessee was to make no alterations without the written consent of the lessor, and would surrender the possession at the expiration of the term in as good a state “as the same are now or may be put into by the lessor, reasonable wear and tear thereof,” &c., “excepted,” the lessor had no claim to any fixtures except those leased, with alterations or repairs 'made by the lessee, and the threatened removal during the term of fixtures substituted by the lessee for old fixtures, which he claimed had become worn out, did not justify an injunction, the remedy at law either for waste or for breach of covenant being adequate.
    Oil application for preliminary injunction. Heard on bill, answer and affidavits.

      Mr. Homer and Mr. Lloyd, for the complainant.

      Messrs. Grey & Archer, for the defendant.
   Emery, V. C.

This is an application for a preliminary injunction on a bill filed to enjoin the removal of fixtures. Complainant leased to defendant premises in Camden for the purposes of a saloon, in which there were at the time bar fixtures and fittings. These fixtures had been in use for some time, and the lease contained a clause that the lessee “will claim no rebate of any nature for any repairs or alterations he may make to the fixtures that are now on the premises.” The lease contained also an agreement by the lessee

“not to use the premises for any other purposes than a beer saloon, nor make or suffer to be made any alterations therein, without the written consent of the said party of the first part,”

and the usual clause to yield up and surrender possession of the premises, with the appurtenances, at the expiration of the term, “in as good state and condition as the same now are or may be put into by the lessor, reasonable wear and tear thereof and accidents happening by,fire or other casualties excepted.”

The lease was for five years from October 1st, 1901, and the tenant is still in possession. Within a few months after defendant took possession he removed the bar fixtures and fittings and replaced them by others. In 1903 defendant removed this second set and replaced them with larger and more expensive fixtures. Defendant claims that the fixtures on the premises at the time of the lease were old and worn and became useless, and that by an express agreement made between himself and the husband of the complainant, as her agent, the old fixtures were removed, and all of them were disposed of by the agent, some of them being taken to his own premises. The husband denies any such agreement, but admits knowing of defendant’s intention to remove the old fixtures, and that a small portion of them (but not all that defendant claims) came to his possession. Complainant’s solicitor denies the husband’s authority to make any agreement for the wife in relation to the fixtures, and the husband says he had none. All of the- fixtures put in by defendant, as well as those on the premises at the time of the lease, were readily detachable, without injury to the building, and were undoubtedly of the kind classed as trade fixtures, ordinarily removable, as between landlord and tenant, unless the lease controls this right. Defendant proposes to remove the fixtures put in by him to other premises which he owns and is fitting up for a saloon. Complainant claims that under the lease these fixtures put in by the tenant are not removable—first, because the fixtures are put in by way of substitution for the fixtures on the premises, and their removal would constitute waste, and second, because the removal would be a violation of the express covenant to yield up the premises in as good condition as they were when leased. The covenant not to claim a rebate for alterations to the fixtures on the premises is also relied on, but this covenant does not relate to the tenant’s right to removal of trade fixtures put in by him. Covenants restricting or. claimed to restrict the tenant’s ordinary right to remove trade fixtures are always strictly construed, and cannot be extended by implication. Dnder the covenant to deliver up the premises at the end of the term in good repair, the tenant has the whole time until the end of the term to put the premises in as good repair as they were at the commencement of the term, and the covenant is not a continuing covenant to repair and keep in repair at all times during the lease. Reed v. Snowhill, 51 N. J. Law (22 Vr.) 162, 164 (Court of Errors and Appeals, 1888). Dnder a covenant of this kind defendant had the right to remove the old fixtures and replace them again at the end of the term, with the repairs or alterations necessary to make their condition as good as when received or when taken out. Andrews v. D. B. Co., 132 N. Y. 348, 351. There is no obligation on the part of the tenant to retain specially for the landlord this third set of fixtures, and his substitution of a fourth set during the term would be no violation of complainant’s rights under the lease. As I now look at the case, the complainant’s rights, under the mere covenants of the lease, do not extend further than to require at the end of the term a set of fixtures as good as those delivered and the substituted fixtures are not made ipso fado her fixtures. Eor a violation of a contract of this character the remedy at law is adequate, and so far as the case depends upon the enforcement by injunction of the specific performance of any contract relating to the removal of fixtures this test of the adequacy of the legal remedy should be applied to the case. 1 High Inj. (4th ed.) § 433. So far as the case depends upon the right to enjoin waste, or threatened waste, the remedy at law is not only adequate, but, in the present case, it is really the most equitable remedy. For complainant under the lease had no legal or equitable claim to any fixtures, except the fixtures she leased, with the alterations or repairs made to those fixtures by the defendant during the lease. Defendant was under no obligation to keep the premises and fixtures in repair from damages caused by their ordinary use, wear and tear, as the tenant was in Ashby v. Ashby, 59 N. J. Eq. (14 Dick.) 536 (Vice-Ghmcellor Grey, 1900). And if the fixtures from ordinary wear and tear, and after the alterations or repairs made by defendant, became useless, defendant was not, I think, obliged, under the lease, to replace them. If he replaced by his own fixtures those which had in fact become useless and worn out by ordinary use and wear, the new fixtures can become the landlord’s only by the application in his favor of very strict rules of law relating to substitution of fixtures. The present claim to retain all the more expensive fixtures put in by defendant, merely because the old fixtures were taken out without her consent, and because the new fixtures are for the present being used in their place, even if well founded, is one based on strict legal right as to the result of substitution, and on a legal right which has not yet been declared in this state. The enforcement, as well as the settlement of such right, if it exist, should in this case be left to the courts of law. The removal of the fixtures would not work any such waste or destruction of the premises as to justify an injunction for this reason, and the case is one where the remedy at law, either for damages for waste, or for breach of the covenant to deliver at the end of the term, would best work out the equities as well as the legal rights of the parties.

The application will therefore be denied.


text:
    Herman & Grace, a corporation, v. Board of Chosen Freeholders of the County of Essex et al.
    [Decided September 21st, 1906.]
    1. The act of March 30th, 1892 (P. L. 1892 p. 869j 2 Gen. Btat. p. 2078), provides that any person who, pursuant to the terms of a contract for any public improvement in any city, town, township or other “municipality” within the state, authorized by law to contract for such improvement, shall perform labor or furnish materials for the completion of such contract, shall have a lien on the moneys due under the contract.—Held, that where a county let a contract for the construction of a county courthouse, the county was'a “municipality” within such act.
    2. The act of March 22d, 1900 (P. L. 1900 p. 190), creates a county building commission to control, on behalf of the county, the purchase of ' land, the1 erection of buildings and payment for the same, together with the bonding of the county for the purpose of raising the entire funds for payment.—Held, that such commission, in the letting of a contract for the building of a court-house for the county, acted as agent for the county, and that its contract was the contract of the county.
    3. The act of March 30th, 1892 (P. L. 1892 p. 869; 2 Gen. Btat. p. 2078 §1), expressly provides that the lien given on moneys due on a contract for a municipal improvement shall exist in favor of subcontractors and their assigns or legal representatives. Subsequent sections, relating to the time of attachment of the lien or the procedure for recovery, re-' ferred to the liability of the “contractor” for the claim preferred, and section 14 (P. L. 1892 p. 873 ; 2 Gen. Btat. p. 2079) defines “contractor” as meaning the person with whom the contract of the municipality is made.—Held, that such subsequent sections did not so modify section 1 as to deprive a subcontractor of his right to a lien thereunder.
    4. A 'defendant in equity cannot demur merely because other parties are improperly joined, such objection being available only to the defendants improperly made parties.
    5. Where, in a suit to enforce a subcontractor’s liens on the proceeds of a contract for a municipal improvement, a bank claimed a portion of the fund under an assignment as collateral for the payment of a debt in excess of that due complainant, the bank was a necessary party to the suit, whether complainant’s claim was prior or subsequent to that of the bank.
    On demurrer to bill.

      Messrs. Guild & Marlin, Mr. Willard P. Voorhees and Mr. Ghauncey G. Parher, for the demurrants.

      Mr. John B. Ilardin, for the complainant.
   Emery, Y. C.

The Essex county building commission, appointed under the provisions of an act entitled “An act to facilitate the acquirement of lands and the erection of buildings for county purposes,” approved March 33d, 1900 (P. L. 1900 p. 190), erected a county court-house by written contract with the Y. J. Hedden & Sons’ Company, dated October 16th, 1903, and supplementary contracts, dated May 8th, 1903, and November 30th, 1903, copies of which contracts are annexed to the bill. The Hedden company contracts cover the entire construction, and this company, on December 30th, 1903, by written contract of that date, subcontracted with the firm of John F. Sayward & Company for the heating and plumbing work. On March 10th, 1903, Say-ward & Company subcontracted with complainant for a portion of their work, and complainant under this contract, up to September 14th, 1905, furnished work and materials for the construction of the court-house, for which a balance of $6,938 was then and is still due. On November 33d, 1905, Sayward & Company suspended work under their contract with the Hedden company, by reason of insolvency, and have since been declared bankrupts.

The Hedden company has not yet completed its contract and (as the bill alleges) large sums of money are still due to it under the contract. The bill is filed to enforce a lien on the money due or to grow due under this contract and claimed under the act of March 30th, 1893 (P. L. 1892 p. 869j 2 Gen. 8lal. 2078), relating to liens on funds in the control of municipalities. The board of chosen freeholders of the county of Essex, the Essex county building commission, and the three members thereof as individuals, are made defendants to the suit, as well as the Hedden company, Sayward & Company and several defendants claiming title under Sayward Company by assignment and otherwise, and also other lien claimants who have filed claims. The demurrers to the bill filed by the Hedden company and the Metropolitan bank, assignees of Sayward & Company, raise specifically the following points:

First. That the Essex county building commission, with whom the contracts set out in the bill were made, is not a “municipality” within the meaning of the act of March 30th, 1892.

Second. That the contracts were not contracts for a public ’ improvement under that act.

Third. Improper joinder as parties defendant of the board of chosen freeholders, the building commission and the individual members thereof. Under a general allegation of want of equity taken on all demurrers, it was objected at the hearing that the lien given by the act of 1892 was given only to the original contractor, and did not extend to a subcontractor. This point was fully argued at the hearing and by the briefs, and will be disposed of.

The first and second objections cover the same point, and the material one, viz., whether, as to either the original or subcontractor, the contract in this case was a contract made with a “municipality,” within the meaning of the act of 1892. It is contended by the demurrants that neither the building commission, with whom the formal contract was made, nor the board of chosen freeholders, nor the county is such “municipality.” The solution of this question depends upon the construction of this act of 1892 in connection with the act of March 22d, 1900, and the supplement thereto of February 26th, 1903. P. L. 199S-p. 19. The act of 1892 is entitled

“An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performance of any work in public improvements in cities, towns, townships and other municipalities in this state,”

and by section 1 it is provided:

“That any person or persons who shall hereafter, as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of any contract for any public improvement made between any person or persons and any city, town, township or other municipality in this state authorized by law to make contracts for the making of any public improvement, perform any labor or furnish any material toward the performance or completion of any such contract made with said city, town, township or other municipality, on complying with the second section of this act, shall have a lien for the value of such labor or materials, or either, upon tho moneys in the control of the said city, town, township or other municipality, due or to grow due under said contract with said city," town, township or other municipality, to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due or to grow due under said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city, town, township or other municipality is made, or the subcontractor of said person or persons, their assigns or legal representatives; pro-aided, that no city, town, township or other municipality shall be required to pay a greater amount than the contract price or value of the work and materials furnished when no specific contract is made in the performance of said work by the contractor.”

Under the title of this act a public improvement in a county, such as a county court-house, would clearly come within the words “in other municipalities in this state,” and under the first section a contract for the erection of a county court-house, if made .with any county in this state, would be included within the description “other municipality.” The erection of county buildings, such as court-houses, jails and other public buildings, are authorized, if not absolutely required by law, in every county, and a construction of this act, relating mainly to public buildings and the payment for them, which would exclude counties, while necessarily including every other territorial division and including them for the reason that a county is not or may not be, for some other purposes, technically or strictly called a “municipality,” seems to me unreasonable, and should not be adopted, especially as such exclusion might invalidate the act by making it special and unconstitutional.

The real question on this branch of the case, as it seems to me, is whether the contract for this improvement, although in form a contract with the commission, was in legal effect a contract with the county. If so, it was a contract with a municipality under the act of 1892. The answer to this question depends upon the construction of the act of 1900, and the relations of the commission and the county under that act. This act is entitled “An act to facilitate the acquirement of lands and the erection of buildings for county purposes.” Previous to its passage the board of chosen freeholders in any county had the power to acquire such land and erect such buildings through the ordinary machinery of the organization of these bodies (which were in some counties very large), and to provide for the expense by taxation or issuing bonds to limited amounts. “Chosen Freeholders,” Gen. 8tat. p. 410 ¶ -4; p. U30 126 &e. The act of 1900 accomplishes two general objects—first, the selection of a small body as a building commission who are to control, on behalf of the county, the purchase of the lands and the erection of the buildings and the payments for the same, and second, the bonding of the county for the purpose of raising the entire funds for payment.

The building commission, consisting of three persons (the director of the board and two other residents of the county selected by the director), are (section 2) authorized to purchase necessary land and to erect the county buildings, taking title and proceedings for condemnation where necessary in the name of the board of chosen freeholders.

By section 3, all money required for the payment of the costs-of lands and buildings and other necessary expenses

•“shall be paid, on the order of the said commission, by the county collector, out of any funds which shall be raised in the manner hereinafter authorized.”

This method of providing the county collector with funds to be disbursed on the order of the commission (being their only method of discharging the contract made by them for the cost) is fixed by section 4, which provides that

“it shall be lawful for the board of chosen freeholders of such county to issue and sell the bonds of such county corporation for the purpose of raising- money to pay the cost of lands and buildings and furnishing- the same to the provisions of the act,”

and to an aggregate amount not exceeding a specified per cent, (five-tenths of one per cent.) of the ratables of the county. By a supplement of February 26th, 1903 (P. L. 1903 p. 19), an issue “of the bonds of such county corporation” to a further aggregate amount of three-tenths of one per cent, was authorized.

The act of 1900 merely authorizes the building 'Commission to erect the buildings, making no express provision as to the form of the contract, • whether it shall be in writing or otherwise, or in whose name, whether in that of the board of chosen freeholders or of the commission. But, in my judgment, such omission is immaterial, because the whole scope of the act is to make the commission and its members the agents of the county, designated under legislative authority, for erecting buildings on lands of the county, which are to be paid for only out of moneys raised by sale of bonds of the county. These bonds are the bonds “of the county corporation,” i. e., of “the board of chosen freeholders of the county,” the formal title of a “county corporation” known to our laws since the act of 1798. Pat. L. 266.

This designation in the act of 1900 of the board of chosen freeholders as the “county corporation” follows the form of expression of many of the acts providing for the organization of the board of freeholders in designating the board as the “corporation of the county,” and.it has been held that the county in its corporate capacity and as a municipality is designated by this name. State v. Crowley, 39 N. J. Law (10 Vr.) 264, 270 (Supreme Court, 1877). In this case, money in the control of the board of chosen freeholders, as trustees for the county, was held to be “money of the county” under a criminal statute.

The commission are not responsible, either as a body or individually, for the payment of the money, and the county is so responsible for the discharge and payment of their contracts, under the acts, in whatever form they may have been made. If the contracts are made in the name of the commission and not of the board of freeholders, the payment could probably be enforced only by mandamus, but such limitation or restriction of the procedure for effecting the discharge of the obligation for payment by the commission to the contractor does not prevent the contract for the erection of the buildings from being substantially a contract with the county, which under the law is ultimately bound to- discharge the obligation for the pajmient. The "obligation of a contract” in a constitutional sense is said to be "the means provided by law by which it can be enforced, by which the parties can be obliged to perform it” (Mr. Justice Field in Louisiana v. New Orleans (1880), 102 U. S. 203, 206), and to consist in the authority or power which the law gives to enforce its performance, or to give a remedy for its non-performance. Mill. Const. U. 8. 51/.0.

For the purposes of the act of 1892, the general object of which is to control, in the hands of municipalities as the owners of public buildings, the payment of moneys due from the owners for their erection, this contract between the original contractor and the building commission for the erection of a court-house on lands of the county, to be paid for only by its money, must be held to be a contract with the county, and the county must be considered a "municipality” within the act.

Second. As to the right of the subcontractor to a lien, the first section of the act of 1892 expressly provides that the lien shall exist

“in. favor of every person who shall be employed or furnish material to the person or persons with whom the contract with said city * * * is made or the subcontractor of such person or persons, their assigns or legal representatives.”

Subsequent sections of the act relating to the time of attachment of the lien (section 5), or to the procedure for recovery (section 8), refer to the liability of the contractor for the claim preferred, and section 14 defines “contractor” as meaning the person with whom the contract with the municipality is made. These expressions have been relied on as restricting or overruling the provision of the first section expressly giving liens to those who supplied the subcontractor, but Vice-Chancellor Grey, in a well-considered opinion, where the point was expressly involved and decided—Garrison v. Borio, 61 N. J. Eq. (16 Dick.) 236, 242, &c. (1900)—held that the language of these subsequent sections did not qualify or nullify the express provisions of the first section, but was entirely consistent therewith. Thus construed, the act provided that the right of the claimant to recover on a claim against a subcontractor, for which a lien was given by the statute, was, as to the amount preferred by lien, limited to and controlled by the liability of the contractor to the subcontractor, for the materials or labor furnished to the subcontractor (and for which a lien was claimed) at the time of filing the notice of lien required by the statute. This construction harmonizes all clauses of the statute, and, as the vice-chancellor points out, follows the construction given in New York to the same statute.

The only reason for referring at length to this decision is the contention that doubt has been thrown upon this conclusion by an expression in a later opinion of the court of errors and appeals in Hall Company v. Jersey City, 64 N. J. Eq. (19 Dick.) 766, 768 (1902). In this opinion a question was suggested as to the meaning of the word “subcontractor” in the first section, and it was said that it seemed plain from the provisions of the act as a whole that the lien was given only for work or materials furnished to the original contractor. But in that case the materials were in fact furnished bjr the lien claimant to the contractor, so that the point now raised was not involved or decided, and the court of errors and appeals itself refers to the expression on the subject in the court below as a dictum to which they did not give approval by their opinion.. Neither does the point now raised seem to have been argued in the court of errors and appeals. And as Vice-Chancellor Grey’s full discussion and the New York decisions on the very point do not seem to have been called at all to the attention of the court, it may be taken for granted, I think, that the dictum in Hall Company v. Jersey City should not be considered as intended to overrule these decisions. Vice-Chancellor Grey in a later decision—Wilson v. Dietrich, 59 Atl. Rep. 251 (1904)—follows his earlier decision as still controlling. I consider it not only as controlling me as authority but also as founded on sound reason, and shall add to ■it only the suggestion that the proceeding in equity under the act of 1892 does not permit any personal judgment against the contractor (Delafield Construction Co. v. Sayre, 60 N. J. Law (31 Vr.) 451 (Court of Errors and Appeals); Norton v. Sinkhorn, 61 N. J. Eq. (16 Dick.) 508 (Vice-Chancellor Grey, 1901), and that this circumstance tends to support the conclusion that a personal liability or obligation of the contractor to tbe claimant for tbe amount preferred by statute is not a test of the right to any lien on the fund.

Third. The objection of misjoinder of other persons as parties defendant is not well founded. In equity a defendant cannot demur merely because other parties are improperly joined, and such objection can be made by only the defendants improperly made parties. Miller v. Jamison, 24 N. J. Eq. (9 C. E. Gr.) 41, 44 (Chancellor Zabrishie, 1873); Olds v. Regan, 32 Atl. Rep. 827 (Vice-Chancellor Emery, 1895); 2 Dan. Ch. Pr. (6th ed.) *337 note S. As to defendants improperly joined, the bill will be dismissed, either on their demurrer or at the hearing, and the misjoinder has no other effect. Seymour v. Freer, 8 Wall. 202, 218 (1868).

The demurrer of the Metropolitan Bank also specifies, as an additional cause, that the assignments to it by Sayward & Company appear by the bill to have been made before the notice of complainant’s claim or lien was filed, but as these assignments were also alleged to have been made as collateral security for the payment of $5,500, and more than this sum is alleged to be due under the contract for the materials furnished by the complainant, the bank is a necessary party to this suit for an accounting and lien, whether the complainant’s claim is prior or subsequent to that of the bank.

An order overruling the demurrers will be advised.