author: Parker, J.

text:
    Emily E. Burlingham, petitioner-appellant, v. Edward J. Burlingham, defendant-respondent.
    [Submitted December, 1921.
    Decided March 6th, 1922.]
    On a petition for divorce brought by a wife on the ground of constructive desertion, the evidence considered and the facts found, held to show no constructive desertion by the husband, but that the separation was voluntary on the part of the wife.

      On appeal iroan a decree dismissing petition for divorce advised by Vice-Chancellor Stevenson.

      Mr. Charles E. Hendrickson, for the appellant.

      Mr. Robert Carey, for the respondent.
   The opinion of the court was delivered by

Parker, J.

This is a wife’s suit for divorce on the ground of constructive desertion. The husband is a priest of the Protestant Episcopal Church, having a parish in another state, not far from New York City, and is about sixteen years older than his wife. The pair were married in October of 1906 and have one child, a daughter, bom two years later, and who, at the time of the litigation, was living exclusively with her father.

There was a separation in 1912 when the petitioner went to Europe. She returned later, but in 1914 cohabitation ceased a;t her instance, and she took an apartment in New York City. In 1915 she went to live in Hunterdon county, in this state, and in March, 1918, a little more than two years later, filed the petition in this cause. Practically all the evidence in a large book consists of testimony and documentary evidence presented by her; she even called her husband as a witness. The testimony on behalf of defendant is confined to a very few pages, and relates merely to his continued residence at the rectory in his parish, and to certain attention that his wife had received there from a married man, who may be called “P.” At the close of the case the learned vice-chancellor heard a summing up by the complainant’s counsel, but declined to hear counsel for the defendant, saying that no case had been made out. The husband had filed a cross-petition for actual desertion, but withdrew it early in the hearing, so that the decree, while reciting this fact, merely dismisses the main petition.

We have no difficulty whatever in reaching the conclusion that the disposition made of the ease by the court below was entirely proper. That the petitioner physically left her husband and that he did not leave her is clear and is conceded. Hence, she must show that she left because he forced her away by a course of conduct which consisted either of cruel and inhuman treatment in a physical sense, or something that was tantamount to it under the theory of our decisions, and on account of which she could successfully have sustained a suit for limited divorce for cruelty. Hall v. Hall, 60 N. J. Eq. 469; Lister v. Lister, 65 N. J. Eq. 109; affirmed, 66 N. J. Eq. 434. But a careful examination of the evidence in this case fails to show such ill-treatment of either class. She says he is a cad, a liar and a hypocrite, and she hates him; all of which, as the vice-chancellor remarked, may be entirely true, and yet would not be cause for her leaving him so as to raise a case of 'constructive desertion.- He was a parson on a salary of $1,500, with the use of a rectory, and she had an independent income of $5,000 a year or more, which would naturally render her somewhat independent and may, in some measure, account for her mental attitude. She was plainly fond of attention from men, impatient of the restraint in- such matters that a clergjunan’s wife should exercise, and openly resented reproof for indiscretion in that regard. Very likely it is true, as she claims, that the reproof was lacking in tact and unnecessarily repeated and dwelt upon; but if marriages are to be dissolved for want of tact, and even for nagging, the institution of marriage would not last very, long. He may even have been, as she says, too fond of her money, and may have liked that better than herself, and may have given her cause to realize it. It is hot necessary to make any finding in this respect, for, assuming that this was so, it does not amount to cruelty, or even an element of' cruelty, nor does it justify, or tend to justify, her leaving him. There is an utter absence of any testimony of physical violence. He never struck her, and it is not claimed that he ever did; and in all the letters between the parties that were put in evidence there is not one unkind word except in a letter written by her where, after he had sent her some flowers to her abode-in -New Jerse3r, she wrote back that she had burned the flowers and box in the furnace. And even this did not evoke an intemperate reply.

That she was indiscreet with at least two men is plain. One of them was “P,” already mentioned. There was another man who may be called “S,” and, as respects this man, her indiscretion is conspicuous, as she admits it in her own testimony. He was not a parishioner, but was a young man brought into an entertainment at the parish house to do sleight-of-hand tricks and similar things to amuse the audience. The petitioner was evidently interested in him and asked her husband about him, and he said she had better avoid him, “as he drank and was fast with women.” Thereupon, she seems to have undertaken to reform him and help him, as she phrased it, by meeting him clandestinely at a restaurant in New York, generally reputed to be frequented by all sorts of people, and drinking cocktails there with him. Information of this reached the parishioners, or some of them, as did information of the attentions of “P,” and she even became a subject of gossip among the servants in her own house, through whom the report reached her husband that petitioner’s underwear.showed signs of improper conduct with a man, presumably, “S.” She undertook to discharge the servants and they refused to go, and this led to a scene in which they accused her to her husband’s face, and this and the husband’s course of conduct thereafter are the points most strenuously insisted on as constituting cruelty on his part. He was evidently suspicious after this, and, undoubtedly, continued to hint his suspicions to her. It may have been, and probably was, a mistake to do so; but no rule can very well be laid down for the guidance of a husband whose wife has confessedly been guilty of indiscretions more or less grave, who .has disobej'ed him by associating with a man she was told to be careful to avoid, and who has confessedly deceived her husband by taking meals and drinking cocktails surreptitiously with such a man at a place of somewhat questionable repute in a great city. All this, combined with a circumstantial accusation by the servants in his own household, may well lead a man to entertain persistent suspicion and to continue to voice that suspicion. Very possibly it would have been more tactful, and might have saved the situation, if he had pursued a somewhat different course of conduct; but to say tliat by doing what he did he was guilty of cruelty which justified her in leaving him and charging him with constructive desertion is preposterous.

But even if it he conceded that he treated her with such injustice as to justify her in leaving him, there still remains the undeniable fact that he made repeated and apparently sincere efforts to induce her to return. She did not return; and the manifest reason why she did not do so, as'it seems to us, is that she hated him and hated the place where he was living and was determined not to go back to him. Under such circumstances, she cannot for a moment justly charge him with having deserted her. The separation was of her own making, and, consequently, gives no legal support to her petition.

The decree of the court of chancery is affirmed.

For affirmance — The Chiee-Justice, Swayze, Trenciiard, Parker, Bergen, Mintuen, Kaliscii, Black, Katzenbach, White, ITeppeniieimer, Williams, Gardner, Ackerson — 14.

For reversal — None.


source: Caselaw Access Project

author: Iyatzenbacii, J.

license: Public Domain

text:
    George Whitson and Grace Whitson, his wife, complainants-respondents, v. Hattie H. Adams, defendant-appellant.
    f Argued November 21st, 1921.
    Decided March 6th, 1922.]
    1. Where a lease for a term of years gives an option to the lessees to purchase the property in the event of the death of the lessor during the term, the lessees have a reasonable time within which to exercise the option of purchase. Any time before the expiration of the lease is a reasonable time within which to exercise the option.

      2. Where in a lease the recital of the parties is so worded as to make it ambiguous as to whether the owner of the premises or her daughter and agent was intended to be lessor, it will be presumed that the lease was intended to be made between the parties capable of making it, and the lease will be under such circumstances so construed as to make the owner the lessor.
    On appeal from a decree of the court of chancery.

      Messrs. Babcock & Champion and Messrs. Bourgeois & Cowlomb, for the appellant.

      Messrs. B-olie, Sooy .& Gill, for the respondents.
   The opinion of the court was delivered by

Iyatzenbacii, J.

Laura B. Myers, a widow, owned a property in Atlantic City, known as No. 1 South Sovereign avenue. On September 25th, 1916, a lease of this property was made for a period of five years, from November 3d, 1916, to George Whitson and Grace Whitson, his wife. The lease reads that it is

“between Hattie H. Adams, of the city of Atlantic City, in the county of Atlantic and State of New Jersey, daughter and agent for Laura B. Myers, party of the first part; and George Whitson and Grace Whitson, his wife, of the aforesaid city, county and state, parties of the second part.”

Mrs. Adams was the only child of Mrs. Myers, and if Mrs. Myers died intestate would, of course, be her heir-at-law. The lease was under seal and signed “Hattie H. Adams.” The lease contained the following provision:

“It is further understood and agreed that in the event of the death of the said Laura B. Myers, mother of Hattie H. Adams, above mentioned, at any time during the continuance of this lease, the said party of the second part has the privilege and the first option to purchase said property for the sum of twelve thousand dollars; the sum of six thousand dollars to be paid in cash, and the balance, the sum of six thousand dollars, to be secured by a purchase-money mortgage for said sum, with interest thereon at the rate of six per cent, per annum, payable semiannually, together with thirty-five hundred dollars fire insurance to accompany said mortgage.”

In May, 1919, Mrs. Myers died intestate. Mrs. Adams survived her. The lessees had entered upon the property under the lease; paid the rent to Mrs. Myers, or the agent designated by her, and had made improvements upon the property. On November 5th, 1920, the lessees notified Mrs. Adams of their intention to exercise the option of purchase of the property given in the lease, and on the following day tendered to Mrs. Adams $6,000 in cash, a mortgage for $6,000 and fire insurance policies for $3,500 upon the property to accompany the mortgage. Mrs. Adams refused the tender. Mr. and Mrs. Whitson thereupon filed a bill in the court of chancery against Mrs. Adams for the specific performance of the option to purchase given in the lease. After a hearing specific performance was decreed. From this decree Mrs. Adams has appealed.

The defences interposed by Mrs. Adams were — first, that the agreement was not her personal and individual contract, and that there was no contract signed by the principal or her authorized agent, as required by the statute of frauds; second, that the terms and conditions of the mortgage to be given by the complainants were not- sufficiently definite to warrant a decree of specific performance, and third, that the description of the property to be conveyed was too incomplete and uncertain to be the subject-matter of a decree for specific performance. At the hearing it was also urged that the complainants had not exercised their option of purchase within a reasonable time.

The second defence relating to the terms of the mortgage was eliminated 'by the offer of the complainants to pay the entire consideration in cash. The third defence was also removed from the case as the decree is for the conveyance of the land without the furniture which was leased with the property by the indenture of September 25th, 1916. With reference to the time within which the option to purchase could be exercised by the complainants, we think the construction placed upon the instrument by the learned vice-chancellor, namely, that the option gave to the complainants a reasonable time within which to exercise it, and that at any time before the expiration of the lease was a reasonable time, was correct. This leaves, then, for consideration only the question as to whether or not Mrs. Adams is bound by the terms of the agreement. The vice-chancellor in his conclusions treats the lease as an agreement by Mrs. Adams by which she gives to the complainants an option to purchase the property from her in the event of her mother, Mrs. Myers, dying during the term of the lease intestate, and holds that the agreement was one that was obligatory upon Mrs. Adams and which she should be directed specifically to perforin.

We are of the opinion that the decree below should be affirmed. We, however, construe the lease and option as not one given by Mrs. - Adams but by Mrs. Myers, acting through her daughter, Mrs. Adams, as her agent. When the lease was made, Mrs. Myers was the owner of the property and the only one who- could lease it or give an option for its purchase. Mrs. Adams had no title to the property. Even though her mother’s death, intestate, during the term of the lease may have been anticipated 'by her, she could give no option to the complainants to purchase the property. No one is heir of a living person. It would be contrary to public policy to permit the enforcement of a contract for the sale of real estate made by one as the contemplated heir of the owner. It is true that the clause describing the parties to the lease, and hereinbefore quoted is somewhat ambiguous, as a cursory reading of it makes it doubtful as to whether Mrs. Adams or- Mrs. :Myers is intended as the party of the first part. But, as Mrs. Myers was the owner of the property and the only one who could lease it or give an option of purchase, it is to be presumed that the instrument was made between the parties capable of making it, rather than made by Mrs. Adams, who could neither at the time of the execution of the indenture lease the property or option it for purchase. The instrument is signed by Mrs. Adams, but as she is described therein as the "daughter and agent of Laura B. Myers,” her signature is in effect that of her principal. This was Mrs. Adams’ understanding of the capacity in which she- signed the lease, as she says in her testimony, “I wasn’t the owner when I made the contract, merely an agent.”

Tn holding, as we do, that the lease is the lease of Mrs. Myers and -was executed by Mrs. Adams as the agent of her mother, it follows that the option to purchase therein contained is not within the statute of frauds, as contended by the appellant. The statute of frauds requires that some memorandum or note thereof be in writing, signed by the party to be charged therewith, or by some other person thereunto by him or her lawfully authorized. Mrs. Adams was lawfully authorized, according to her own testimony, to sign the lease containing the option. The authority of the agent does not havei to be in writing under this section of the statute. Milne v. Kleb, 44 N. J. Eq. 378.

Mrs. Adams, after admitting she was acting as the agent of her mother1 in the execution of the lease, is in no position now either to deny her agency or set up> that the contract is within the statute of frauds because not executed by the party to be bound thereby. She is the heir-at-law of the one for whom she admits she was acting. Contracts for the sale of land are enforceable against beirs-aLlaw and devisees. It is certainly not inequitable to decree specific performance against one who is the heir of the party making the contract and who was the one who as agent executed the contract for the ancestor and must certainly have been familiar with its terms.

The decree below is affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, ELatzenbach, White, Heppeni-ieimer, Williams, Gardner, Van Buskirk —14.

For reversal — None.


author: Per Curiam. Mtnturn, Jh Swayze, J.

text:
    Public Service Railaway Company v. William J. Banker, Jr. Public Service Railway Company v. Isadore Barnett. Public Service Railway Company v. William D. Reinhardt.
    [Decided December 5th, 1921.]
    On appeals from decrees of the court of chancery advised bir Vice-Chancellor Griffin, whose opinions are reported in 92 N. J. Eq. MS, 372.

      Mr. Frank Bergen and Mr. Robert Ti. McCarter, for the appellant.

      Mr. Merritt Lane and Mr. George F. ■Seymour, Jr., for the respondent.
   Per Curiam.

The court being equally divided upon the question whether there shall be an affirmance or a reversal, the decrees appealed from will be affirmed.

For affirmance — Swayze, Trencitakd, Parker, Kalisch, Black, White, Ackebson — 7.

Fo reversal — Ti-ie Ci-iiee-Justice, Bergen, Minturn, Katzenbacii, Heppentieimer, Williams, Gardner — 7.

In these cases the following opinions were filed:

Mtnturn, Jh

I dissent from the views of the learned vice-chancellor in the court below for the following reasons:

The bill was filled by a legally constituted street railway company, operating under a legislative franchise, as a common carrier of passengers, on the streets of Newark, Elizabeth and Perth Amboy, to enjoin the defendants from illegally interfering with its charter rights. It charges that the defendants have not procured the prescribed municipal consent to operate jitney buses upon the streets of such cities, and that they are operating such buses and collecting fares for the transportation of passengers in competition with the complainant, and that such operation is therefore unlawful in character, a nuisance, and “a detriment to the complainant’s business; diminishes its revenues, and is a hindrance to the performance and discharge of its public obligations and is otherwise contrary to equity and good conscience.” The bill was met with a motion to strike out, equivalent to a demurrer,, under the older practice, upon various grounds of equitable informality, but also upon the substantial ground that the complainant was endeavoring to perpetrate an exclusive right in the streets, tantamount to a monopoly, and that “if in fact defendant is operating without complying with said law, no right of complainant, remediable in equity is offended thereby.” Testimony was taken pro and con upon the allegations of the bill, and the averments in the notice to strike out, but when the hearing was had the learned vice-chancellor, basing his determination upon Camden Horse Railroad Co. v. Citizens Coach Co., 31 N. J. Eq. 525; Elizabethtown Gas Light Co. v. Green, 46 N. J. Eq. 118, and Jersey City Gas Light Co. v. Dwight, 29 N. J. Eq. 242, held that the complainant “has no standing in this court to ask for injunctive relief.”

The practical result of this determination is to reduce the argument to the single inquiiy whether the complainant, as the owner of a street franchise, possesses a legal status, sufficiently comprehensive to protect its property from illegal invasion. From this aspect of the question our deteihnination must prove as important in its results to the legally authorized jitneur as it can to this complainant, for, in both instances, the question involved is one of wrong doing against a legally authorized concern, doing business under a legislative grant.

In discussing the question, therefore, it is obvious that we are not concerned with the relative rights of a legally authorized company or jitneur,.engaged in a competitive business, but solely within the fundamental inquiry whether the legal status of the complainant presents a basis for an appeal to a court of equity, to protect its property rights against one occupying no higher legal status than that of a tort-feasor or a trespasser.

The answer to this inquiry is necessarily involved in the inquiry as to the nature of the right which the complainant is seeking to enforce. Is it a property right ? If it is, the rule in this branch of jurisprudence is settled beyond the pale of reasonable forensic controversy that as against a usurpation of the right or a trespass upon it, the complainant is warranted in appealing for that injunctive protection, which equity alone in such an exigency can confer.

In 12 R. C. L. 175, we find it stated that “in character and nature, a franchise is essentially in all respects property, and is governed by the same 3-rdes as to its enjojnnent and protection, and is regarded by the law precisely as other property.” City Tax Appeal Cases, 3 How. (U. S.) 133; Telephone Cases. 230 U. S. 58. Mr. Justice Lurton, in the latter case, observed: “That an ordinance granting the right to place poles and wires upon the streets- of a city is the granting of' a property right, has been too many times decided by this court to- neéd more' than a reference to some of the later cases. As a property right it was assignable, taxable and alienable. Generally, it is an asset of great value to such utility companies and a principal basis for credit.”

In Boise Artesian Co. v. Boise City, 230 U. S. 84, the same learned justice, discussing the nature of a grant for the construction of a water distributing system in the public streets, again observed: “The right which is acquired under an ordinance granting to a water company the right to lajr "its pipes in the streets is a substantial property right. It has all the attributes of property. It is assignable and will pass under a mortgage sale of the property and franchises of the company which owned it.”

In Piscataqua Bridge Co. v. New Hampshire Bridge Co., 7 N. H. 68, it was declared that “the grantees of such a public franchise are entitled to be protected in the enjoyment of the property acquired under it to as great an extent as thejr are protected in the enjoyment of any other species of property.”

In Newark v. State Board of Taxation, 67 N. J. Law 246, this court, speaking by the present chief-justice, declared that “a franchise to maintain and operate a street railway over public highways and collect tolls from persons traveling upon it, is property, and is taxable as such,” following State Board of Assessors v. Central Railroad, 48 N. J. Law 146.

In Raritan and Delaware Bay Railroad Co. v. Delaware and Raritan Canal Co., 18 N. J. Eq. 546, this court-, in 1867, by Chief-Justice Beaslejq with his usual lucidity, declared that “a franchise to build a railroad for public use and to take tolls is property, the title to which is held from the sovereign, and like eveiy other thing susceptible of private ownership-, it must of necessity be under the protection of the laws. Unless it can be shown that this species of right is altogether anomalous in its character, and is under the control of exceptional rules, a wrongful invasion of such right cannot but be followed by a legal vindication.”

Conceding, as we must, under this wealth of legal authority, that the status of this complainant is that of a property owner, exercising its right of operation under the sanction of a sovereign grant for public purposes, the question presents itself whether the portals of equity are open to it for the purpose of protecting the grant against the invasion, not of a legally authorized competition but of a conceded trespasser and tort-feasor.

In Willard Eq. Jur. 405, the rule is declared that

“Courts of equity by injunction interfere to protect individuals in the enjoyment of a franchise created by statute; and it may be added that an injunction will be granted to'prevent. the franchise of a corporation from being destroyed, as well as to restrain a party from violating it by attempting to participate in its exclusive privileges.” Citing Osborn v. United States Bank, 9 Wheat. 738.

Iii .the case of Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101, Chancellor Ivent enjoined a turnpike or free road company, operating without authority of law, from further interference with the legally constituted turnpike company, declaring “that the rules of the common law relating to ferries, fairs, markets and toll bridges were applicable to any similar privileges created by statute.”

TTpon another occasion the same learned authority declared “all grants or franchises ought to be SO' construed as to give them due effect by excluding all contiguous competition which would be injurious and operate fraudulently upon the grant.” 12 R. C. L. 197.

In the Delaware Bay, &c., Railroad Case, supra, Chief-Justice Beasley declared such an, illegal invasion of a public grant to'be “a fraud upon such grant and a plain public nuisance.” He determined the question involved here by this practical and comprehensive inquiry and answer: “Has a railroad company any redress against a competition unwarranted by law, and which materially affects the value of the privileges with which it is legally vested? I am at a loss to perceive upon,what premise or by w'hat course of reasoning other than an affirmative answer to this question could be justified.” That determination during the interim of half a century remained unchallenged and unquestioned, and has received the approval of some of the most distinguished chancery judges of our time.

In Camden Horse Railroad Co. v. Citizens Coach Co., 31 N. J. Eq. 531, Chancellor Runyon declared “that the complainant is entitled in equity to protection in the exercise of its franchises, not only against unlawful competition, but against unlawful obstruction cannot be doubted.”

In Elizabethtown Gas Light Co. v. Green, 46 N. J. Eq. 123, Vice-Chancellor Aan Fleet declared: “It is also established that a court of equity has power to protect a corporation holding an exclusive franchise from irreparable injury arising from the usurpation of a like franchise, whether the usurpation be com■mitted by natural or artificial persons.”

The Fame learned vice-chancellor in Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 250, characterized the illegal acts involved here as a “fraud and an unwarrantable usurpation of power/’ and thus presenting an obvious basis for equity intervention.

It is argued, however, that to be recognized as a suitor in good standing in a court of equity, the complainant, unlike other suitors, must present what is termed an absolute or exclusive right to operate its franchise upon the public highway. Manifestly, it might be answered, that as a recognized legal corporate entity, possessing at least relative rights with the rest of the business community, it must occupy a status equal with other owners of propert}q who frequently seek and obtain upon the filing of the bill the injunctive process of equity to prevent unlawful interference with the legitimate prosecution of their business. But, obviously, that contention! may be waived and the objection may be answered by the assertion that the right of the complainant in this case to conduct its business as a street! railway, is an exclusive franchise as against every one excepting the state; and it assuredly must possess, all the attributes of such a franchise as against a tort-feasor, which is the only inquiry presented by this record.

It is not contended that as against the state under its reserved power other forms and methods of transportation may not be inaugurated and utilized as progress and public necessity may require. Charles River Bridge v. Warren River Bridge, 11 Pet. 420.

But such a contention cannot be invoked by a mere trespasser, whose hands are soiled with usurpation, and who in defiance of the provisions of the law recognizing and regulating his business, raises this question against a legitimate state agency.

This complainant as an agent of the state is in possession of and operating a public franchise. “What is a franchise?” inquires Mr. Justice Bradley in California v. C. P. R. R., 127 U. S. 1, referring toi a public franchise to operate a railroad. He defines it thus: “Under tire English law Blackstone defines it as a royal privilege or grant of the king’s prerogative, subsisting in tire hands of the subject. Generalized and divested of the special form which it assumes under a monarchical government, based on feudal traditions, a franchise is a right, privilege or power of public concern which ought not to be exercised by private individuals, at their mere will and pleasure, but should be reserved for public control and administration, either by the government directly or by public agents acting under such conditions and regulations as the government may impose in the public interest and for the public security.” See, also C. P. R. R. v. California, 162 U. S. 91.

Such a concession is a grant pro- tanto of the powers of sovereigntjr, which cannot be usurped by another without legislative authority, and to that extent every concession of a public nature by the sovereign power becomes jus publicum, and is absolute and'exclusive in character. Driscoll v. N. W. Ry. Co., 65 Conn. 220; Twelfth Street Co. v. Philadelphia Railway Co., 142 Pa. St. 580; 18 Cyc. 1463.

“Of course,” said the learned editor in 12 R. C. L. 196, “the grant with exclusive privileges of a right appertaining to the government is a very different thing from a grant with exclusive privileges of a right to pursue one of tire ordinary trades or callings of life which is a right appertaining solely to the individual. It is the duty of the government to provide suitable roads, bridges, ferries and other utilities for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may stipulate for such exclusive privileges connected with the franchise as it may deem proper without encroaching upon the freedom or. the just rights of others.” New Orleans Gas Co. v. Louisiana Co., 115 U. S. 650; Indianapolis Street Railway Co. v. Citizens Railroad Co., 127 Ind. 369; Montgomery Gas Co. v. Montgomery, 87 Ala. 245.

In consonance with this general doctrine, it was declared by the superior court of California that “franchises are necessarily exclusive in their character; otherwise their value would be liable to be destroyed or seriously impaired. And even though the grant does not declare tire privilege to be exclusive, yet that is necessarily implied from its nature.” California State Tel. Co. v. Alta Co., 22 Cal. 398.

It is not disputed that in the absence of the exercise of legislation providing for a license, and. cognate regulations, as conditions precedent to transacting business, any person may engage in the business of transportation, and assume the duties of a common carrier upon the highways, subject to local regulation. Cranford El. Co. v. Knox Co. Power Co., 110 Me. 285; 33 A. & E. Ann. Cas. 933; Magee v. Overshiner, 150 Ind. 127.

That question, however, is not involved here, since the state having entered the arena oí licensing and regulation, has prescribed the conditions under which the business may be carried on, as to the complainant by the provisions of its respective subsidiary charters, and as to the defendants by the provisions of the so-called Jitney act.

Manifestly, therefore, the complainant occupies a legal status which entitles it, as anjr other suitor, to present its grievances to a court of law or of equity and obtain a, hearing.

The result is that the decree appealed! from will be reversed, to the end that the court of chancery may hear and determine the case upon its merits.

I am requested to state that the chief-justice, Mr. Justices Bergen, Katzenbach and Judges Heppenheimer, Williams and Gardner concur in these views.

Swayze, J.

I favor affirmance in this case because I think we are controlled by the opinion in Elizabethtown Gas Light Co. v. Green, 46 N. J. Eq. 118. This opinion was affirmed and has been acted upon by the courts ever since 1889. One of- the fundamental propositions, to be found on page 129 of the report, is, that until it is made clearly to appear that the condition in question was imposed in favor of the complainant, or for its benefit, so that it has a clear right to demand its observance, the complainant’s position with respect to the condition is that simply of a stranger, and hence, it stands without the least pretence of right to complain of its breach. “It is only the parties to a grant made subject to conditions or those in whose behalf or for whose benefit these conditions'are imposed that have a right to ask that they shall be performed or to seek protection against their breach or redress for their violation.”

In that case, although it was conceded that the'acts of the defendants were without legal authority, and although they were obviously to the injury of the complainant in the exercise of its franchise rights, nevertheless, relief was denied because the complainant was not mentioned in the charter of the' competing company, and the charter contained no word or sentence which by the most lax construction would support even a conjecture that the condition under consideration was imposed for the benefit or protection of the complainant. The purpose of the condition in question in that case, said the court, was to protect such persons as should become creditors of the Metropolitan company. This view was approved by this court. Elizabethtown Gas Light Co. v. Green, 49 N. J. Eq. 3298.

Unless we can find in the case now under consideration something to indicate that the requirement of bonds from the jitney companies was meant for the benefit of the complainant, relief cannot be granted. So far from finding that it was the legisla-, ture’s intention to give the complainant any additional rights, it is quite clear that the legislature, both in 1916 and in 1930 (P. L. 1916 p. 283; P. L. 1920 p. 182), when it required the jitney companies to give bonds, meant to retain the control and enforcement of the matter within the miinicipality for the. benefit of the general public having the right to use the streets and subjected to the danger arising from the running of the jitneys therein. We ought not to resort to what is at least a doubtful, even if permissible, construction, to increase the corporate powers of the complainants, especially'since the act of 1916 was passed in full knowledge of the decision in Elizabethtown Gas Light Co. v. Green, supra, and such a liberal construction of corporate powers is against the well-settled rule.

The case is very different from the Camden Coach Co. Case, Where there was a direct interference with the rails and tracks of the street railway company.

Mir. Justices Trenchard, Parker, 'Ealisch and Black and Judges White and Ackerson concur in this view.


author: Per Curiam.

text:
    Mary Parnes, executrix, &c., appellant, v. Gnome Manufacturing Company, respondent.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, Who filed the following opinion:
    “Complainants in tin's action.seek the rescission of a contract for the purchase of stock, the repayment of $2,500 paid to defendant, under this contract, by the decedent in February, 1920, and they also' ask to have defendant enjoined from prosecuting any suit to recover the balance of $3,500 alleged to be due on the price of the shares of stock purchased under this contract.
    “The grounds on which relief is sought are — that officers of defendant bjr misrepresentations relating to its ownership of patents on a toy aeroplane and a dolks head ; the amount of its unfilled orders; that the patentee of the aeroplane was then in its employ at a small salary; that Albert F. Bender, a lawyer of Elizabeth, was a stockholder and officer of the company; that no royalties were due or payable on the manufacture of the aeroplane, and that the company would issue twenty shares of fully paid common stock as a bonus; upon the decedent subscribing for sixty shares of its preferred stock; and, also, that these officers of defendant by the fraudulent concealment from decedent of certain facts, within their knowledge, respecting the number of shares of preferred and common stock then outstanding; the amount of its gross sales up1 to December 31st, 1919, and the fact that the cost of producing its- products up' to that date exceeded the amount of sales by about one-third; that'its liabilities exceeded its assets; that the original subscribers to its capital stock had not paid their subscriptions; that the corporation was in fact insolvent, and was a losing and unprofitable venture; induced Samuel Parnés, the decedent, to purchase the. shares of stock mentioned. ■ All of these misrepresentations and concealments are denied by the officers of the defendant and by its witnesses.
    “In support of these allegations reliance is placed by complainants upon certain features of the 'bill and answer, upon interrogatories and the answers thereto; and on the books of the defendant and principally upon the testimony of Julius A. Parnés, a son of the decedent, and one of the complainants.
    “From the record it appeal's that Samuel Pames, a resident for years in Elizabeth, and a successful business man, bought this stock on February 17th, 1920, and died eighteen days later, on March 7th, and that he was ill for some days before his death.
    “That he knew that a Mr. Conrad and the Balinski brothel’s, friends of about twenty years’ standing, were interested in the company as stockholders, but not in its management; that he spoke to all of them several times about the business of the company before purchasing the stock, and asked the amount of their investriient in it, and expressed his desire to own as much stock in it as Joseph Balinski, the largest stock owner, who had invested $6,000 in the company’s stock; Mr. Parnés also expressed his desire to these parties to inspect the factory and to obtain a position in the eompaiy for his son, and also desired to enlarge the scope of the company’s operations, according to ideas which he had obtained in Europe; and he further expressed his willingness to build a larger factory and rent it to the company. Some dajrs preceding February 17th, accompanied by his son, Mr. Pames inspected the factoiy, and it is on this occasion that it is testified to by his son that the misrepresentations were made by Mr. Cannon, the president and secretary of the eompairy, and it appears from the testimony of Mr. Cannon, and from that of Conrad and the Balinski brothers, the only others present during this inspection and conference, which lasted about an hour and a half, that Mr. Pames and his son were taken over the factory and shown the work that was being done; that they were made fully acquainted with the affairs and operations of the company, and of its financial conditions, and of its need of -money, that all of the hooks of the company "were opened to his inspection and that he paid little attention to them, but that they were examined by his son; that decedent asked a number of questions about orders on hand; the business and financial conditions of the company; about the stock outstanding and about the number of shares each person held; and stated that he wanted to own at least as many shares as the largest stockholder had. These witnesses agree that Mr. Cannon and the others present fully informed Mr. Parnés and his son of everything relating to- the company’s affairs, including the amount of money it had in bank; and that it had debts to pay; that it could not go on with majiufacturing for lack of money; .that the company desired to sell more stock to obtain money to go ahead with other patents; and that Cannon then gave Mr. Parnés a pencil memorandum of facts relating to the company’s affairs; and that questions were asked’ b3r Mr. Parnés and his son and answered by one or more of the others present.
    “They further agree in their testimony that nothing was said or clone to induce Mr. Parnés to become a stockholder; that he apparently was anxious to get his son in the business; and upon the understanding that the company would employ his son at $30 a week, Mr. Parnés announced he would pay $6,000 for sixty shares of the preferred stock, with a bonus of twenty shares of common stock, and that he then announced his willingness to .take an active part-in the business and give the company the benefit of his experience in the real estate and 'building business and offered to help out in the development of the aeroplanes, having patented one himself; and that he then also- offered the use of his automobile to help the company in its business.
    “From the testimony of Mr. Bender, the attorney of the company, it appears the same parties met at his office a few days later, in February, 1930; at this meeting, when the stock' certificates were ready for delivery, Mr. Pames was asked for a check for $6,000, and stated it was not convenient for him to pay the entire amount at that time, hut that he could pay $2,000: Mr. Cannon then informed him that this amount wo-uld not meet the bills the company owed, as they needed at least $2,500 for that purpose; which amount Parnés then paid and Bender wrote a receipt showing the details of the transaction and gave the original to Mr. Parnés and kept a copy for his files. Mr. Parnés then made inquiry about the control of the company and a new agreement pooling the stock of all parties was then signed by all of the stockholders [except one], including Mr. Pames.
    “As stated, practically all of these facts are disputed by Mr. Pames’ son, although he admits being present with his father and inspecting the factory, but he does not recall seeing Mr. Cannon give his father the pencil memorandum containing' the ■list of stockholders and a. statement of the company’s financial condition. His father transferred to him ten shares of the preferred stock and he at once entered the employ of the company and remained with it for about three months; and his salary was unpaid for about six weeks, although other employes were regularly paid. Shortly after entering upon his work he claims he discovered from his own observation and from remarks of Mr. Cannon that many of the statements which he states were made to his father to induce him to buy stock were false, and that material facts relating to the company’s affairs and to its financial condition had been concealed from him and his father by Mr. Cannon and the others present at their conference; he admits that during his employment he had free access to all books nncl papers of the companjr and reported his discoveries almost daily to his father; and that no action was taken by Mr. Pames, after his son informed him he had been defrauded, to rescind the contract; it also appears that young Mr. Parnés did not complain to Mr. Cannon, nor to any one else connected with the company 'before or after 'his father’s death that he had discovered that his father had been induced to purchase the stock through misrepresentation respecting it, or through the concealment of the real condition of the company’s affairs. On the contrary, he continued on very friendly terms with'Mr. Cannon, and on July 13th, 1920, some weeks after leaving the company’s employ, he wrote Mr. Cannon that he was now working in New York, and added:

      “ ‘Let me at this time express my sincerest thanks to you for your part in getting me this position; I shall try my hardest to do you justice. If there is ever an occasion where I can show my appreciation of your kind interest, won’t you please call on me, as I assure you it will he a pleasure?’
    “It seems incredible- that this young man about twenty-two years old should write this letter months after he had discovered, as he now claims, that Mr. Cannon and others had defrauded his father out of $2,500; and at a time when he knew the}r were attempting to collect from his father’s estate $3,500, additional as part of the proceeds of their fraud. It also requires something more than this young man’s uncorroborated statement to justify one in believing his assertion that within three days after - this fraud was perpetrated, and while $3,500 was still unpaid for the stock, Mr. Cannon- was so indifferent to the consequences that he gave him free access to. all the books and affairs, of the company ; and, in effect; informed 'him or allowed him to learn that all of the statements which Cannon had made to his father and himself to induce the purchase of the stock were false and fraudulent.
    “Complainant’s proofs are far from establishing that any of the misrepresentations and concealments complained of were ever made or occurred; and such proofs as they offer are completely -overcome by the evidence on the part of the defendant. It is contended, however, that the stock certificates, themselves are indicative of the fraud, because there is printed thereon the statement that the capital stock is full paid' and non-assessable, when in fact it is not. Aside from the statement of Mr. Bender that this caption was a mistake due to his own act, as attorney for the company, in ordering a standard form of certificate from the stationer, it significantly appears by the proofs that Mr. Parnés never saw a Stock certificate of tire company bearing this caption until after he had agreed to buy the stock and gave his check for $2,500 on account of the purchase price; and this caption, therefore, could not, and did not, induce him to make the purchase of the stock. It also appears that Mr. Parnés was informed by Mr. Bender at or before the time- he made the payment of $2,500, that the common stock which he received as a bonus was more of a liability than an asset, and that some day he might be called upon to pay for it, and Parnés stated that he understood that to be the fact.
    “It is further contended that at the time'of this transaction, and, also, as a result of it, defendant had violated section 18 of the Corporation act by having issued and outstanding its preferred stock to an amount which exceeded two-thirds of its common stock paid for in cash or property.
    “This allegation, like tire others, is not supported 'by the proof, which shows one hundred and eight shares of preferred stock issued and outstanding and two hundred and twenty-nine shares of common issued, of which one hundred and twenty-seven shares had been issued for property purchased [patents or patent rights], and if the sixty shares of preferred included here be added to the foregoing, tire proportion between the common and the preferred would still be within the statute.
    “I will therefore advise that the bill be dismissed.”

      Messrs. Kanter é Kanter, for the appellant.

      Messrs. Gilhooly & Bender, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — The Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Katzenrach, Williams, Gardner, Aokerson, Van Buskirk — 13.

For reversal — None.


text:
    Robert H. McCarter Potter, respondent, v. John Lumsden, appellant.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “Complainant was the owner of land in Andover, in this .state, upon which a brick dwelling, tenant-houses and several bams are erected, the whole being known ag the ‘Pequest Stud Farm,’ which complainant had operated for several years for breeding horses. Defendant was seeking to purchase a stud farm and complainant opened negotiations with him for the sale of the land and premises in question. After several meetings between them, complainant agreed to sell and defendant agreed to buy the real property and certain work horses, farm implements, machinery and equipment for $40,000, of which defendant paid $10,000 on account and took the following receipt from complainant :
    ‘In consideration of ten thousand dollars ($10,000) to me in hand paid this day and for a further consideration of thirty thousand ($30,000 00/100) to be paid upon the surrender of a deed, I agree to sell and transfer .to John Lumsden of Ottawa, Can., the tract of land known as the ‘Pequest, Stud,’ same being situated in the township of Andover, on the road from Newton to Hackettstown between the settlement known as Brighton and the village of Andover, in the State of New Jersey, said tract containing 450 acres, more or less, together with all personal property on said tract with the exception of contents of brick house, tractor and plow and harrow, brood mares, stallions, foals, yearlings & 2 year olds & ‘bow bells,’ one mule & milk bottles.
    “ ‘Dated N. Y., April 26th, 1918.
    “ ‘R. H. McCarter Potter.’
    “On or about May 1st, 1918, defendant, with complainant's consent, entered into possession of the real and personal‘property ancl lias held possession ever since. Complainant sought to have defendant accept a deed for the property and pay the balance of the purchase price, but defendant refused and complainant has filed his bill praying that defendant be compelled to- perform his contract by accepting a deed for the farm and paying complainant $30,000 with, interest from May 1st, 1918. Defendant urges in defence of the suit that complainant has not good title to a tract of seven and eighty-six hundredths acres which forms a necessary part of the farm; that he agreed to buy the farm for $40,000 upon complainant’s representation that it contained four hundred and fifty acres, when in fact it contains less acreage, and that complainant made defendant no tender of a proper deed before filing his bill of complaint.
    ""Dealing with the first objection raised-by defendant, it is conceded that complainant has no record title to the seven-and-eighty-six-hundredths-acre tract. He depends upon open, notorious and exclusive possession of that tract in himself and his predecessors in possession for more than fifty-five years, and he contends that by recorded deeds to himself and his predecessors, it was intended to- convey the tract in question, but that by mistake the wrong description was inserted in the deed. It was proved that -Jonathan D. Calvin, who was seized of the tract, conveyed it to Samuel Hibbler by deed dated June 23d, 1838, recorded July 10'th, 1838, and that the same grantor conveyed to the same grantee by deed dated April 20th, 1839, recorded July 8th, 1839, another tract of seven and twenty hundredths acres in the same township; that Samuel Hibbler, being then the owner of the two- tracts, by deed dated April 1st, 1865, recorded May 2d, 1865, conveyed to his son James E. Hibbler, describing in the deed the seven-and-twenty-hundredths-acre tract; that the seven-an-d-twenty-hundredths-aere tract was thereafter conveyed by James E. Hibbler, by deed dated April 1st, 1887, recorded April 5th, 1887, to his brother Thomas Hibbler, and by Thomas Hibbler, 'by deed dated March 28th, 1894, recorded the same day, toi John Emmans, and by John Emmans, by deed dated March 31st, 1902, recorded April 21st, 1902, to complainant. Complainant argues that in the deed from Samuel Hibbler to James E. Hibbler the seven-and-twenty-hundredths-acre tract was described b3r mistake instead of the seven-and-eighty-six-acfe tract, and that this mistake was followed in the subsequent deeds down to and including the deed to complainant, and in support of his argument, and also in support of complainant’s claim to adverse possession by himself and the preceding grantors, it was proved that actual possession of the seven-and-twenti'-hundredths-aere tract remained in Samuel Hibbler from the time of his conveyance from Jonathan D. Calvin down to his death intestate, February, 1868, and that after his death that tract was included in and sold with other lands which comprised his farm and the proceeds of sale distributed among his heirs-at-law, and the seven-andi-eighty-sixhundredths-aere tract, also conveyed by Calvin to Samuel Hibbler, was never conveyed by the latter or his heirs-at-law; that James R. Hibbler, to whom Samuel Hibbler conveyed the seven- and-twemfy-hundredths-acre tract in 1865, took possession of the seven-and-eighty-six-hundredtbs-acre tract, cultivated it, set out fruit trees and erected a house and barn thereon and occupied that tract until he conve3red to Thomas Hibbler, in 1887, and that Thomas Hibbler, John Enrmans and complainant, under their respective deeds, which described -the seven-andtwendy-hundredths-acre tract, went into possession of the seven- and-eight3r-six-hundredths-acre tract and continued in open, visible, notorious and exclusive possession, undisturbed and uninterrupted, such adverse .possession being continuous from 1865, the possession of complainant having been since 1902.
    “While complainant’s argument that the deeds recited intended to describe the seven-and-eighty-six-hundredths-acre tract instead of the seven-a,nd-twenty-huncli*edths-acre tract, has a reasonable foundation, I cannot determine in this suit that such mistake actually occurred, and I shall consider only the question of adverse possession. No evidence was offered on the part of the defendant to controvert, or even to cast doubt upon the accuracy or reliability of the evidence to show possession by complainant and his predecessors who claimed to own the seven-and-eighty-six-hundredths-acre tract since 1865, and I must therefore find that under Comp. Stat. p. 31-69 §§ T6-, 17, the right of any person claiming title adverse to complainant is barred, but, before holding that complainant’s proof in this suit of title by adverse possession is a sufficient answer to defendant’s refusal to take title, I should consider the principle laid down by this court that when the validity or marketability of title depends upon facts outside the public records, a vendee should not be forced to take the title unless the necessary proofs are available to him when he may have future need of them. A doubt as to validity of title which can avail to defeat the vendor’s claim to specific performance must be reasonable, and, so far as it depends on contingent events and uncertain facts, their occurrence or existence must be fairly probable. There is clear and uncontroverted evidence in this case of more than fifty-five years of actual possession by complainant and those through whom he claims ownership’, and I can see no reasonable apprehension that proof of possession and occupancy, similar to that presented in this case, will not be available to defendant as it was to complainant. Defendant -may not be able to produce the same witnesses, but the statutes limiting actions for the possession of lands will continue to run, and the facts to show adverse possession for the necessary period will always be at hand. Day v. Kingslani, 07 N. J. Eq. 134, and Barger v. Gtery, '&4 N. J. Eq. 263, are cases similar to the instant case and in which this court decreed specific performance. I am, therefore, of the opinion that under the proofs before me, the defendant’s refusal to perform his contract on the ground that complainant’s title to the seven-and-eighty-six-hundredths-acre tract is not good and marketable, is not well founded.
    “The second reason urged by defendant, why he should not be required to perform his contract is, that in the negotiations leading up to the sale, complainant represented'to him that the farm contained four hundred and fifty acres, whereas by survey its acreage is found to be less, and defendant further rages that if he should be" decreed to specifically perform, he should be allowed an abatement on the purchase price for the difference between the four hundred and fifty acres and the number of acres actually in the farm. Defendant’s brief states that there are '’about four hundred and twenty-seven acres,’ while in complainant’s brief the acreage is stated as four hundred and twenty-nine ancl thirteen hundredths acres. The actual number of acres is not definitely stated in the testimony, but a survey offered in evidence shows the number of acres in the several tracts, which constitute the farm, the totál of which I make to be four hundred ancl thirty-one and seventy hundredths, or eighteen and thirty hundredths less than defendant insists he should have.
    “The rule is that where a vendor fraudulently represents the number of acres to be greater than the actual number and thereby induces the vendee to agree to pay more for the tract than he otherwise would, the vendee may refuse to perform the contract, or where there is no proof of fraud, but the difference between the actual and the estimated or represented quantity of land is so great así to clearly warrant the conclusion that a mistake has been made by the parties-and that the vendee would not have contracted to pay so large a purchase price had he known the true facts, abatement of the purchase price will be made. Molicie v. Dayton, 34 N. J. Eq. 245; Frenche v. Chancellor, 51 N'. J. Eq.-62¡4; Strains' v. Norris; 7i8 N. J. Eq. 483;' Eostetier v. Merridc, 112 Atl. Rep. 487.

    “Complainant desired to sell his property, and learning that defendant was looking for a stud farm, called on defendant and offered to sell, stating to defendant that his farm contained in the neighborhood of four hundred ’and fifty acres and that he wanted $100 an acre for it. The following clay complainant took defendant to see the property, and they spent at least five hours walking over and examining it. The-farm was enclosed by line fences on all sides, save where it is 'bounded by the Pequest creek, and I believe complainant’s testimony that he pointed out the fences to defendant and showed him the location of the creek. Defendant was favorably impressed- with the farm because of its location and the fact that it was being utilized for and was adapted to the purpose he had in mind. He had been in the lumber business twenty-five years ancl had'had a large experience in buying timber land. The parties thereafter had several interviews on the subject of the sale. Complainant insists that a price per acre was not mentioned after their first meeting, while defendant says that- after seeing the farm he made complainant an offer of $80 per acre, which complainant declined. At some meeting after the visit to the farm, defendant expressed a desire to purchase certain equipment and personal property thereon and complainant finally agreed to sell the farm and personal property for the lump> sum of $40,000, making no statement as to the number of acres and specifying no' price per acre., Defendant did not then accept the offer, but a few days later sent for complainant and stated that he had decided to buy at complainant’s price and paid him $10,000 on account. Complainant then composed, wrote out and signed the receipt hereinabove set out and gave it to defendant, who read it and kept it. It will be observed that the receipt states that the farm contains £450 acres more or less.’
    “Defendant does not claim that complainant fraudulently misrepresented the acreage or intended to mislead him in that respect. He claims to have relied on a definite statement made bAr complainant that there were four hundred and fifty acres in the farm. The use of the words ‘more or less’ in the receipt confirms complainant’s testimony that at his first meeting with defendant he stated he owned fin the neighborhood of 450 acres,’ and indicated that he was not certain as to: the exact number of acres but proposed to convey all he owned and the question, therefore, is: IVas defendant willing to pay $40,000 for .the land and premises as he saw it [including the personal property], understanding that he was to get about four hundred and fifty acres, perhaps less or perhaps more, and is the actual difference so considerable that a portion of the purchase price should be abated to defendant?
    “I do not think defendant was influenced in the purchase by complainant’s statement at their first meeting as to the area of the farm, whether complainant said it contained £450 acres’ or fin the neighborhood of 450 acres,’ nor do I think that the purchase price as finally fixed was based upon a price per acre. Before agreeing to purchase, defendant had inspected the farm. Because of his experience in buying timber land he was able to estimate its area, and finding that the whole plant was suitable for his purposes, agreed to buy. After seeing the farm, the purchase of the personal property was discussed and the value of such personal property must have been considered by defendant when he agreed on the purchase price. He does not say that had he known the farm contained less than four hundred and fifty acres he would not have bought it, or that he would not have offered so much as $40,000, and. I conclude that the quantity of land was not of the essence of the contract, but that the defendant agreed to buy the property, real and personal, as an entirety without regard to the exact number of acres of land, unless the variance betwéen what he thought was there and the actual contents should prove to be considerable. I cannot say that the difference is so great that it should not 'be included within the terms ‘more or less/ According to my computation, the difference is four per cent., and according to defendant’s brief, it is a little more than five per cent. In Melicle v. Dayton, supra, a difference of four and one-half per cent, in the acreage was 'held insufficient to entitle a purchaser to an abatement in the purchase price. I think the difference here is insufficient to justify a deduction from the purchase price. Moreover, there is no evidence before me as to the value of the land which could be used as a. basis for computing an abatement. Complainant’s offer, which defendant accepted, was a lump sum of $40,000 for land, buildings and personal property, and it would be inequitable to allow an abatement at a rate per acre ascertained by dividing four hundred and fifty into $40,000.
    “Defendant’s final defence is that complainant made no tender of a proper deed prior to filing his bill of complaint on September 13th, 1918. A deed was tendered by complainant in June, 1918, which purported to convejr the whole farm, but through a mistake of which neither party was then aware, did not contain a correct description of the seven-and-eightv-sixhunclredths-aere tract. Defendant refused to accept it, but not because the description was incorrect or for the reason that there was a shortage in the acreage. His refusal was on the ground that the receipt did not specify a time for the pa3cment of the balance of the purchase price and that complainant had agreed with him to wait until November 1st, 1918, for such balance. After this tender and refusal, defendant learned of the questionable title to the seven-and-eighty-six-hundredths-acre tract and he filed 'his answer herein November 2d. 1918, wherein lie set up that because of the defect in title and the shortage in acreage he would not perform his contract. This was the first notice to complainant that his title was questioned and that the description in the deed he had tendered defendant was defective. He thereupon notified defendant’s solicitor in this cause that he was ready to deliver a deed containing a correct description, and upon being informed by such solicitor that defendant would not accept it and pay the balance of the purchase price, he filed a supplemental bill. Beading defendant’s answer in this suit, it is apparent that had complainant before filing his bill tendered defendant a deed containing a proper description, defendant would have refused to accept it, and it is also apparent that a formal tender of such a deed by complainant before filing his supplemental bill would have been futile. What complainant did before filing his supplemental bill to evidence his willingness to perform his part of the contract was sufficient, and an empty show of formal tender and demand was unnecessary under the circumstances.
    “Defendant has set up in his answer several offsets against the purchase price, concerning which I shall say without discussing them, that they should be determined in an action at law before a jury and that they will not be allowed defendant in this suit.
    “I shall advise a decree directing defendant to accept a deed from complainant which shall contain a correct description of the farm to be conveyed, together with a bill of sale of the personal property, and further directing defendant to pay complainant $30,000, with interest, from November 1st, 1918. I allow interest from that day because there is a dispute between the parties as to the date upon which defendant agreed to take title, and on this point I accept defendant’s version of the agreement.”

      Mr. Thomas M. Kays, for the respondent.

      Mr. ’William A. Dolan, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chief-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Gardner, Ackerson, Van Buskirk — 13.

For reversal — None.


text:
    Joseph W. Sutton, appellant, v. Township of Maurice River, Cumberland County, respondent.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    “I am convinced that defendant’s motion to strike out the amended bill must prevail.
    “In Jersey City v. Lembech, SI N. J. Eq. 266, our court of last resort has definitely determined that the court of chancery cannot set aside or control the proceedings of a municipal body in matters of taxation on the mere ground that such proceedings were irregular or unlawful; that if the acts of such bodies are not extra vires they do not fall under equitable control except from the presence of special equities.
    “In Goodwin v. Millville, 76 N. J. Eq. >270, the bill disclosed that an assessment for sewer improvements had been set aside by the supreme court on certiorari at the instance of one of the adjacent owners on' the ground that the assessment had been made on principles contrary to the statutory requirements. for such assessments. After the statutory period for the other adjacent owners to sue out similar writs had expired the muñidpality proceeded to enforce the void assessment against the remaining adjacent property owners. At the instance of one of the adjacent owners an injunction was issued by this court restraining the city from enforcing the assessment until a re-assessment should have been made pursuant to the decision of the supreme court. On appeal it was held that in the absence of some peculiar ground of equity jurisdiction certiorari was the exclusive remedy of either an adjacent owner or a taxpayer, and that remedy having been lost by laches of complainant no relief could be granted.
    “I find no such special equities in the present amended bill. It is urged that the original jurisdiction of equity to remove clouds on titles should sustain the jurisdiction.' But the cloud here-sought to be removed involves an adjudication upon the regularity of the tax proceedings and the tax deed issued thereunder. Cahill v. Town of Harrison, 87 N. J. Eq. 524, is cited. All the New Jersey cases there collected (at p. 526) will be found to be eases in which the proceedings were ultra vires the powers of the several municipalities. The decisions of courts of equity of other states and of our federal supreme court, to the effect that the quia timet bx-aneh o-f equity jurisdictioxx to remove or px'event clouds on titles included the removal or prevention of clouds occasioned by taxes or improvement assessxnents which are void for mere irregularities, are in conflict with the rules now firmly established in this state; it was measurably upon such authorities that the bill in the Goockvin Case was enteita-ined in the lower coux-t. The claim that the ceihetery was not assessed and is- exempt fx-om taxation encounters the same objections; furthermore, if the cemetery was not assessed and is not included in the description contaixxed in the tax deed — the two descriptions appear to be substantially the same — there obviously can be xxo recovery in the pending ejectment suit which the bill seeks to exxjoin. Nor am I able to- conclude that the amended bill discloses an equitable estoppel arising from the conduct of the tax officials adequate to- justify the interposition of this court. Indeed, in view of the decision in the Goockvin Case, it seems impossible to' conclude that in this class of cases any laches which bars the legal remedy for any cause of complaint other than ultra vires which could be made a ground of relief by the appropriate legal remedy should not also be operative as a bar to equitable relief, even though such equitable relief might otherwise be appropriately granted.
    “I am impelled to advise an order dismissing the amended bill.”

      21 r. Herbert O. Bartlett, for the appellant.

      21 r. Louis II. Miller, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by AGce-Chancellor Learning

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Mintdrn, Kalisch, Black, Katzenbacit, AYjlltams, Gardner, Ackerson, Van Buskirk — 13.

For reversal — None.


text:
    Alice N. Van Arsdale et al., appellants, v. Ida Gorenflo et al., respondents.
    [Decided February 2d, 1922.]
    On appeal from a decree of the court of chancery advised by A^ice-Chancellor Fielder, who filed the following opinion :

      “The bill is filed to foreclose a mortgage dated Majr 4th, 1914, given by Ida Gorenflo to complainant Alice M. Van Arsdale, covering several tracts of land situate in Newark and East Orange. The mortgage was given to secure the payment of a bond bearing even date with the mortgage made by Ida Gorenflo and another to said complainant, conditioned for the payment of the principal sum of $7,457.40, as follows: $250 on November 26th, 1914-, and the like sum of $250 every six months thereafter until the due date of the bond, and the balance of the principal sum on.November 26th, 1916, with interest, payable semi-annually. The bond contains the usual clause that in case of default in payment of interest, or installments of principal, for thirty days after the date whereon the same were made payable, tire whole principal sum with interest should, at the option of the obligee, become due and payable immediately. It also contains a provision that the obligors, their heirs and assigns^ may pay off the whole or any part of the principal before maturity, in sums not less than $300 in any one payment, and that lots of a. specified area will be released from the mortgage given to secure the bond at a specified rate per front foot. The mortgage contains a provision that it is given with the express understanding and agreement that lots of a specified area will be released from the lien thereof at a specified rate per front foot, the area and the rate being the same as mentioned in the bond. It also contains the usual defeasance clause and recites the interest and installment of principal default- clause contained in the bond.
    “Through mesne conveyances the defendant Tinfowiteli, by deed dated December 10th, 1915, recorded December 13th, 1915, became the owner of one of the lots, subject to the lien of the complainant’s mortgage. His deed recites that it is made subject to the payment of $320, being part of complainant’s mortgage, which sum he assumed and agreed to pay. That is, the amount which, by the term’s of the bond and mortgage, he would be required to pay complainant for a release. Tinfowiteli erected a building on Ins lot, and by mortgage dated February 14th, 1919, recorded March 17th, 1919, he mortgaged the premises to the defendant Traders Building and Loan Association; and by mortgage dated April 3d, -1919, recorded April l-4th, 1919, he gave another mortgage covering the premises to the defendant Albert Wolf Lumber Company.
    “The $350 installments of principal which complainant’s bond required to be paid semi-annually werea not paid, but the complainant did not exercise the option given her by the bond to declare the whole principal sum due upon default in payment for thirty dajrs. The whole principal sum fell due November 36th, 1916, but was not paid. " Some time after the last-mentioned date, Tinfowitch tendered complainant the proper amount specified in the bond and mortgage for a release of his lot and demanded a release, which tender and demand were refused, the reason assigned by complainant ’being that Tinfowitch was not entitled to receive a release after the maturity of the bond, and complainant thereafter, on November 10th, 1919, filed this bill to foreclose her mortgage, making Tinfowitch and his wife, the Traders Building and Loan Association and the Albert Wolf Lumber Company, with others, defendants. -Tinfowitch filed an answer denying complainant’s right to foreclose as against him and a counter-claim in which he prays That he may have such relief against complainant as shall be necessary to place him in full and proper possession unencumbered as regards the mortgage in foreclosure’ of the premises owned by him. Although this prayer does not ask definitely that the complainant be decreed to execute and deliver to him a release covering his property upon payment of the amount specified in the bond and mortgage, the. cause was tried and argued upon the theory that he seeks such relief and his counter-claim may be amended accordingly. The answer of the Traders Building and Loan Association alleges that it is entitled to have tire lot in question released from complainant’s mortgage, and the defendant Albert Wolf Lumber Company has not answered, but has filed a -notice that it desires its encumbrance reported on under the rule of this court.
    “Complainant insists that the provision contained in the bond to the effect that permission to pay off -the whole or any part of the principal money before maturity in sums not less than $300, applies to the clause which follows, which specifically refers to the releases, and she maintains that because.of that provision Tinfowitch’s right to a release expired when complainant’s debt matured, but I do not think so. As I read the provision in the bond, there were two options given the mortgagor, her heirs and assigns — first, the right to make payments on account of principal, which was expressly limited to before maturity, and second, the right to exact releases which was not limited as to time. The mortgage contains no reference to the right to make payments on account of principal, and the release clause therein contained is definite and specific, without limit as to time and contains no reference which would charge a purchaser from the mortgagor with notice and put him upon inquiry as to the terms of the bond in that respect.
    “Complainant further maintains that Tinfowitch is not entitled to a release because he took title to his lot after the condition of the bond and mortgage had been broken — that is, after three defaults had occurred in the payment of semi-annual installments of principal and in two payments of interest. These defaults, continued for thirty days, gave complainant the option to declare the whole principal sum due and to demand immediate payment thereof with all arrearages of interest, but she did not exercise her option, and until sire did exercise it, or until the due date of the bond arrived, her debt had not matured. In fact, she continued to give releases upon the terms specified in the bond and mortgage, not only after default in payment of interest and installments of principal had occurred, hut after the due date of her bond.
    “Complainant also maintains that in any event her liability to deliver releases extended to demand therefor made before the due date of the bond. It is my eondusion that under the release clause contained in the mortgage, the privilege given to the mortgagor and her assigns to receive releases for lots of a certain size, at a specified rate per front foot, is not limited as to the time within which it should be exercised by one who purchased from tire mortgagor before the principal fell due, and that Tinfowitch, being such a purchaser and having demanded a release before the bill in this cause was filed, accompanying his demand by tender of a proper sum of money, was entitled to receive a release, although his demand was made after the maturity of tire debt. Hall v. Home Building Co., SQ N. J. Eq. 304; American Net,

      Sc., Co. v. Giihens, -57 N. J. Eq. 589; Vminor Investment Co. v. Record, Sc., Co., 79 N. J. Eq. 108; Sawings Investment, Sc., Go. v. United, Sc., Go., 81 N. J. Eq. jp&, J75.

    “Tinfowitch should have completed his tender after this suit was commenced by paying into court the amount he claims complainant should have accepted when he filed his answer. He may now pay into court $320, which, I believe, is the amount specified in the bond and mortgage for a release of the premises in question, with interest on that sum to be computed from the date to which interest was last paid complainant, to tire time of payment into court. Or, if complainant will waive payment into court and will execute and deliver a release to Tinfowitch, such payment may be made direct to complainant. In any event, complainant will be decreed to' deliver a release to Tinfowitch.
    “I think Tinfowitch is in a measure responsible for this litigation, because he neglected for so long a time after becoming the owner of his lot to demand a release, and, therefore, I shall not allow him costs as against complainant. The interest which the Traders Building and Loan Association has in the lot is derived through Tinfowitch, and it will receive the relief it seeks through the release complainant is to deliver to Tinfowitch. No costs will be allowed as between this defendant and complainant.
    “Tinfowitch filed a counter-claim against the Traders Building and Loan Association seeking relief which, in my judgment, cannot be granted in this suit. The counter-claim will be dismissed, but without costs.”

      Messrs. Parker, Emery S Van Riper, for1 the appellants.

      Mr. James B. Furber, Mr. Samuel Herman and Mr. Casimiro Seoppettone.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — Tiie Ci-iiee-Justice, Swayze, Trenohard, Parker, Bergen, Kalisch, Black, Katzenbact-i, Wi-iite, Williams, Gardner, Ackerson, Yak Buskirii — 13.

For reversal — None.


text:
    Moe Frank, appellant, v. Louis Frank, respondent.
    [Decided February 2d, 1922.]
    On appeal from a decree of the court of chancery advised by Yic-e-Chancellor Griffin, who filed the following opinion:
    “The purpose of this suit is to declare the existence of a partnership between two brothers, Moe and Louis Frank, masons and plasterers, and for an accounting, and to have it declared that certain lands, in the city of Bayonne, mentioned in the bill, standing in the name of Louis, are partnership property, or that a resulting trust exists therein in favor of Moe.
    “In 1910 Moe was nineteen years of age, -and, as I recall it, Louis was not quite twenty-one. They were engaged in the plastering business. Moe says that he did the plastering work, and Louis was the master, without a Union card, while he, Moe, had one; that Louis, in order to work, was required to have a Union card. This statement is somewhat negatived from the fact that Louis, in 1914, did work as a journeyman, and had permits, which cost $5 apiece to work for a period. However, Moe says he received no wages; that all he received was a couple of dollars a week, and, occasionally, his clothes, and the money was turned in to his mother for the support of tire family, consisting of the lather and mother and eleven children, only two of whom were working, namely, Moe and Louis.' It appears that the father worked very little. Moe also says that the surplus, over and above the sum turned in to the mother, was to- be put in bank in the joint account. The fact is that no moneys in the nature of wages were paid by Louis to Moe from 1910 until around 1914, when Moe became engaged in marriage, and he was then paid his regular weekly wages, out of which he paid his board to his mother. From 1910 to 1914 or 1915 Moe worked for others than his brother, and the brother himself engaged as a journeyman on his own account. The building business was not very active and employment was not readily obtainable.
    “The only circumstance, to my mind, which tends to support the theory of Moe as to the partnership- is the fact that he was not paid regular wages, such as an employer would pay a journeyman. But it must be borne in mind that Moe was a younger brother [Louis being about a year and a half to two years his senior], and that it was a family agreement wherein Louis says he turned in -to his mother Moe’s money, after paying him two or three dollars lor spending money and buying him clothes. While, as a matter of fact, Louis does not really know how much he turned in, I take it that, in all probability, he turned in a sum equivalent, or almost equivalent, to Moe’s earnings; and, in addition to this, turned in a very large portion of his profits and earnings, without undertaking to keep- an account of the sums so turned in on the account of.either. That there could not have been much saved'is apparent from the fact that there were thirteen mouth's to feed but ó’f the' earnings of these two sons, and work was not at all tintes'plentiful.
    “In 1910 or 1911 the two-lots mentioned in the bill were bought for $1,550. These- were bought"by Louis and one Koenigsberg, who say's that he understood- that Louis had bought one-half for himself and Moe, and that he, Koenigsberg, bought the other half for himself and his brother, who was his- partner, and that for convenience the property was taken in the joint names of himself and Louis, because Moe was then under twenty-one years of age. The purchase price was paid by giving a mortgage for $1,000 and cash $275 paid by Louis, and $275 in cash and notes paid by Kcenigsberg. Subsequently, in 1911, or about a j'ear after the purchase, Louis wanted to build, and his co-owner did not care to do so, and Louis bought his interest out by giving him the sum he had paid, plus $75 as profit. This purchase price was paid partly in cash and the balance in notes payable $25 a month.
    “The building was undertaken, which, according to the figures, cost about $9,000, or thereabouts. When completed, a seven-thousand-dollar first mortgage was put upon it and a fifteen-hundred-dollar second mortgage, which two mortgages practically represented the entire cost of the two buildings, which were two six-family houses. Moe worked on this propert]r, but was not directly paid wages, his earnings being turned in to-his mother, as above stated, for the support of the family.
    “There was also work done on a building of a carpenter or plumber by both Moe and Louis, the proceeds of which were credited on a bill against Louis, and the balance paid to the carpenter or the plumber. Thus, Moe, to the extent of what became due to him on this outside work, contribuí ed towards the cost of Louis’ building.
    “There is some evidence that Louis had made statements that Moe was a partner, and that he would give Moe his share when the buildings were sold. This testimony, after a lapse of several years, is rather vague, and hardly rises to the dignity of proof, when it is considered that Louis entered into- possession of the property, handled it as his own, ran all the risks, made all the mortgages, raised all the money to carry the property, during a portion of which time it was not a .paying proposition; that he continued to be the owner, without apparently any demand or claim being asserted against him until this bill was filed, or shortly before, and that even, after Louis was inducted into the army and gave a power of attorney to another brother to collect the rents, Moe, with knowledge of this fact, did not assert his rights as a partner, or claim that he was entitled to take charge of the premises. All these things indicate, to a great extent, that Moe did not understand that he was a partner, or that he had any interest in the premises, and probably would not now assert it were it not for the fact that in June of 1919 he and Louis became estranged and have not spoken since.
    “The conclusion I have reached is that the proof offered is insufficient to establish either the existence of a partnership between the brothers or a resulting trust in favor of the complainant in the premises in question.
    “I will advise a decree dismissing the bill.”

      Mr. Aaron A. Melniher, fox the appellant.

      Messrs. Derribe & Derribe, for the respondent.
   Per Curiam.

The decree appealed from will he affirmed, for the reasons stated in the opinion filed in the court 'below by Vice-Chancellor Griffin.

For affirmance — The Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbaci-i, White, Williams, Gardner, Ackerson, Van Busktrk — 14.

For reversal — None.


text:
    George Ketcham et al., respondents, v. Hyppolite A. DeRaismes et al., appellants.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:

      “Complainants seek an accounting of money received by defendants for the conveyance of lands to the city of Newark, in which the complainants had some title or interest. •
    “On the hearing it was established that in April, 1915, the defendant Hyppolite A. DeRaismes called on complainants and informed them that the}- were the owners of, or entitled to some interest in, a small tract of meadow land, of little value, of which their ancestor, Jonathan David Ketcham, had died seized in 1865; that they then signed a paper, which proved to be the agreement and power of attorney hereafter referred to; that they did not know that this paper was made to the defendant Raoul H. DeRaismes, the son of Hyppolite; that they had never heard of him, and that they thought they were dealing with Hyppolite.
    “When this paper was signed, complainants understood it authorized Hyppolite A. DeRaismes to look up their interests in the meadow land and that whatever was realized therefrom he was to receive, according to the testimony of some of complainants, one-half of the proceeds.
    “On March 6th, 1918, DeRaismes had complainants execute two deeds for the' property to his son Alfred DeRaismes, and these deeds were acknowledged before DeRaismes as a commissioner. Some of the complainants did not know that they were executing deeds for the property, and thought they were signing a power of attorney to DeRaismes; and it appears that none of them knew that the deeds were made to Alfred DeRaismes, and none of them were informed by DeRaismes of the propose for which the papers were executed. On April 20th, 1920. De-Raismes, through his son Alfred, contracted with the city of Newark to convey this Ketcham property of three and fifty-four hundredths acres, and other tracts, totaling forty-seven acres, for $1,500 an acre.
    “It further appears that some years before DeRaismes approached complainants on the subject, the Ketcham tract had been sold for unpaid taxes to a land company, and that the city, under an agreement with the land company, made in 1917, redeemed the tax ■ certificate on this tract by the payment of
      $393.01, which was deducted from the price of $5,310 paid by tlie city to Alfred DeRaismes for this property, leaving the net amount realized by Hyppolite DeRaismes from the sale $4,-916.99. Of this sum DeRaismes divided $1,693.33 among complainants and he retained the balance as his compensation, under the agreement hereafter referred to.
    “DeRaismes admits that complainants never met his sons; that the agreement and power of attorney and the deeds were made to them, for his benefit, and it appears that he never informed complainants that he 'had sold, or contemplated selling, the property to the city, nor did he ever tell any of complainants the amount he realized from this sale.
    “Hyppolite DeRaismes, who is the active and actual defendant, claims complainants are not entitled to an accounting, and that they have received all they are entitled to, under .the terms of their contract with his son Raoul, in which he claims they agreed to accept from him
    “ ‘the one-third part of any share [of theirs] of any and all net recoveries, net settlements and net collections he may make or effect, or which may be made or effected by any action at law or in equity in said matter or matters
    and, because by the contract, in consideration of one dollar, they did thereby
    “ ‘assign, convey and set over to said Raoul H. BeRaismes the equal two-thirds part of all and every such net recoveries, net settlements and net collections which may be made by him amicably or by or through any litigation.’
    “This contract was admittedly prepared by, or under the direction of, Hyppolite A. DeRaismes, and its 'objects and purposes are disclosed by the foregoing provisions and -by the recitals which he embodied in the agreement. The first recital refers to the death of Jonathan Ketcham; the second, to the relationship to him of complainants; the third is as follows:
    “ ‘And whereas, Raoul H. BeRaismes of, &c., is of the opinion that there possibly may be some small interest belonging to us in some matters in. which said Jonathan Keteham once had some rights or interest, but which can be ascertained and determined only by extended examination, proof and possible litigation; now, we * * * do hereby authorize the said Raoul H. DeRaismes to make any and all examinations, proofs and settlements of our rights, title and interest he may deem necessary, and to conduct any litigation he may deem proper, and to do so in our names or otherwise, but always at the expense and cost of the said Raoul H. DeRaismes, said costs and expenses, however, to be made first chargeable to and paid from any recovery, settlement and collection when made;’
    then follow the provisions, above quoted, for the division among the parties of -an}' net amount recovered, settled for or collected.
    “Upon the admission, of this contract in .evidence, and on the conclusion, of the testimony of Mr. IVolber, the city attorney, by which it appeared, as well as from the testimony of DeRaismes, himself, that with respect to this property there had been no litigation and no recovery, collection or .settlement .of any kind, and that all DeRaismes had done was to effect a sale of this property to the city after a number of calls on, and conferences with, officials of the city, in which the price to be paid for the sale-of this and the other properties, mentioned w^s discussed, I then announced that the contract bjr its .terms, did not apply .to the compensation DeRaismes was .entitled to receive for effecting, a mere sale ef the. property, to the city, as-by no.stretch of language could the word “fell’ be regarded as a synonym for Tee.overjq settlement or collection,’, as used in-this.contract, .'.
    “On. the conclusion of .the case, at.the.request, of counsel for defendants, I refrained from announcing any decision, .in order to enable them .to file .a brief that would establish. defendants’ contention, that under.the terms of this, contract he was entitled to retain as his compensation two-thirds of -the .amount realized from the sale of the property.-
    “I.have considered the brief .and supplemental brief..which counsel filed with me and have also studied the contract, with the result that I am ■ confirmed in the conclusion .tentatively, announced. . ... -;
    .“DeRaismes, in his anxiety..to conceal frnm complainants the real value of their .property, .and his intention-to sell the same to the city, created imaginary doubts and defects of tbeir title and interest, and vaguely referred to net recoveries, net settlements and net collections, and to litigation at law or in equity to give the impression that to obtain anything for them he would have to use much time and expend great effort, and, possibly, incur costs and expense, which he would be obliged to pay, and for the reimbursement of which he would have to look to the amount he recovered or collected. All of this was done to give a fictitious value to his services, so that his exaction of two-thirds of the amount he recovered, settled for or collected would not seem exorbitant. In the form of agreement which he had complainants execute, to effectuate his purpose, he deliberately omitted therefrom any authority for him to effect an ordinary sale of the property and also any provision for his compensation in effecting such sale.
    “In this comment I am not unmindful of the provision in the power of attorney that he [Raoul] is authorized to bargain and sell; the agreement does not state what, but, presumably, this property; and the further provision that he is authorized to make and deliver deeds and conveyances for all the right, title and interest of complainants, but such authority is expressly limited and could only be exercised by the terms of the contract and power of attorney, Tor the further and better carrying out of this'agreement, * * * and as shall be necessary to aid in bringing about any recovery, sale, collection or settlement.’ De-Raismes, apparently, considered his power of sale limited to these objects, becauses he did not attempt to convey the property to the city, nor even to contract to convey it, in the exercise of this power. He had complainants convey the property to' his son Alfred, who, when thus vested with the title, contracted to sell, and later conveyed the property to' the city.
    “Defendants’ answers charge that complainants fraudulently concealed from them the fact that the children of Mary Higgins, deceased, had an undivided one-eighteenth interest in the property which was not conveyed to the city, and they ask that two of the complainants, Mrs. Kearney and Jonathan Keteham, be decreed to pay to them a sum proportionate to such interest, so that they may pay the same to the city.

      “No proof was offered to establish this interest of the Higgins children, although it is not denied by complainants; and the only evidence to support the charge of concealing this interest is the testimony of DeRaismes, wlm states Mrs, Kearney told him these children had no interest in the property; Mrs. Kearney denies this and states she told him of the children’s interest. Whether she did or not-is not material, 'because, presumably, the city paid for only such interests in the property as Alfred De-Raismes was able to convey to it; and if any one has been injured by the suppression of information about the Higgins interest, it has not been the defendants.
    “I will advise a decree for an accounting, as prayed for, in which the defendants are to be credited with all monej's paid to, and distributed b}', them among complainants out of the purchase-money received by them for the priopeiiy.”

      Mr. John Francis Cahill and Messrs. Church, Harrison & Roach, for the respondents.

      Mr. William P. Hurley, for the appellants.
   Per Curiam.

The decree appealed from null be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For ajfimnance — The Chief-Justice, Swayzb, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbacit, Williams, Gardner, Ackekson, Van Buskirk — 13.

For reversal — None.


text:
    Henry Siebold et al., respondents, v. Ernest Zieboldt et al., appellants.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery, advised'by Vice-Chancellor Griffin, whose opinion is reported in ¡98 N. J. Eg. 327. . . ■ ■'

      Mr. John J. Fallon, for the respondents.

      Mr. William B. Stiies, for. the appellants.
   Per Curiam.

The decree appealed from will he affirmed, for- the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin. - ■ ■•• •

For .affirmance — Ti-ie Ci-iief-Just-IGE, Swayze, TrencHard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbagh, Williams, Gardner, Ackerson, Van Buskirk — 13.

For reversal — None.


author: Pee-Curiam.

text:
    Francis Luczak and Helena, his wife, respondents, v. John Mariove and Ilone, his wife, appellants.
    [Decided February 2d, 1922.]
    On-appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 9® N. J. Eq. 877.

      Mr. John Q. Frey, for the respondents.

      Mr. Otto A. Stiefel, for the appellants.
   Pee-Curiam.

■' The decree appealed- from will be-affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — The Chief-Justice, Trenchard, Parker, Bergen, Minturn, Kalisch, ‘Black, Katzenbach, White, Williams, Gardner, Van Buskirk — 12.

For reversal — None.


text:
    The Swedesboro National Bank v. John C. Richman et al.
    [Decided February 9th, 1922.]
    On appeal from chancery advised by Vice-Chancellor Backes, whose opinion is reported in 92 N. J. Eq. 8f\6.

      Mr. Jomes Mercer Davis, for tire complainant.

      Mr. Joseph J. Swnmerill, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed, by Vice-Chancellor Backes in the court below.

For affirmance — The Ci-iief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Katzbnbach, Williams, Gardner, Ackersoií, Van Buskirk — 13.

For reversal — None.


text:
    Elizabeth Street, respondent, v. Joseph Harris, appellant.
    [Decided February 2d, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Qriffin, whose opinion is reported in 98 N. J. Bq. 88.

      Messrs. Collins & Corbin, for the respondent.

      Mr. George G. Tennant, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the 'reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen; Minturn, Kalisch, Black, Katzbnbach, White, Williams, Gardner, Van Buskirk — 13.

For reversal — None.