text:
    Harriet Ella Kremelberg et al., appellants, v. Edith K. Thompson et al., respondents.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court o£ chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    This is a bill for an accounting. The complainants are the children of John D. Kremelberg, late of the city of Baltimore. The defendant is the daughter and sole heir-at-law of J. George Kremelberg, deceased, a brother of J ohn. The effort is to charge George’s estate with a sum amounting to several hundred thousand dollars, on the theory that he failed to account for property derived from his brother, which, it is said, he held in trust for complainants. The property, in respect of which this trust is alleged to have arisen, was, if I understand complainants’ position aright, John D. Kremelberg’s share of the good-will of a commission business carried on by him in New York and Baltimore, which after his death came into the hands of George, and thereafter, it is said, produced large profits. The defendant denies the existence of any trust unperformed.
    The facts are these: J ohn D. Kremelberg was at the time of his death, in May, 1882, a commission merchant, engaged in the business of exporting tobacco.' The Baltimore firm was known as J. D. Kremelberg & Company. Of this, John D. was almost sole owner, his son Frederick having a small but unknown and negligible interest that had been given to him by his father. The New York firm was known as Kremelberg & Company. It consisted of John D. Kremelberg, whose interest was twenty per cent., of J. George Kremelbergj whose interest was forty per cent., and of Adolph Engler, whose interest was also forty per cent. The. business had no fixed capital, but John had allowed a part of his profits to remain undrawn, and this constituted the capital for both firms. Other than this, they had no capital and no property. At the time of John’s death, the business appears to have been fairly profitable, and John was reputed to be wealthy. His estate, however, realized only $136,-000, of which $50,000 came from the sale of the house in which he lived.
    His will, made eight years before he died, contained the following clauses:
    “I give, devise and bequeath to my brother, George, and my son J. Frederic, in equal proportions, all my interest in the following business houses, namely, Kremelberg & Go., New York, J. D. Kremelberg & Co., Baltimore; Kremelberg, Schaefer & Co., New Orleans [this last named firm had ceased to exist at his death], and in the assets and property of every kind of said houses or firms. * * * It is my will and I hereby direct that all my just debts and funeral expenses and the entire interest to which my wife may be entitled in my estate real and personal, shall be paid out of the proceeds of the rest and residue of my estate above mentioned, so that my interest in the business houses and frms above mentioned and devised to my brother'George and my son J. Frederick shall remain wholly undisturbed and be in no way interfered with.”
    He appointed his brother George, his son Frederick and his friend Samuel IT. Tagart his executors. Of these only Tagart qualified. He was a prominent Baltimore lawyer and a personal friend of the family.
    None of the persons, who took an active part in the settlement of John’s estate, except John’s daughter Ella, are alive. His two sons died a few years after their father. The complainants base their case upon documents, of whose contents, it is said, complainants were until recently ignorant, and these I will take up in the order of their dates.
    The first is the notice sent out by the surviving partners:
    “Baltimore, May 81, 1882—Sir, It is our painful duty to inform you of the death of our highly esteemed senior partner, Mr. J. D. Kremelberg, on the 24th instant at Philadelphia, where he had gone for medical advice.
    “The business in Baltimore, New York and Louisville will be continued as heretofore.
    “Yours very respectfully,
    “J. Fred Kremelberg
    “George Kremelberg-
    “Ad. Engler

    New York.
    “Julius Wills, Louisville.”

      Tlie inventory of testator’s tangible property, made in July, 1882, does not appraise or even refer to testator’s interest'in tlie two firms. Tlie paper next in order of date is a deed from Frederick Kremelberg to his Uncle George, dated on December 4th, 1882, by which, in terms that are absolute and unconditional, he transfers to him all his “estate, right, title, interest, claim and demand whatsoever in and to all the property devised and bequeathed * * * by the aforesaid item of said last will and testament”—that is, the item- giving John’s interest in the business houses above mentioned. Contemporaneously, George executed a trust deed as follows:
    “Know all men by these presents that whereas by deed of even date herewith, perfected before the execution hereof, John Frederick Kremelberg, conveyed and assigned to me all the interest bequeathed to him in and by the will of his father, the late John D. Kremelberg, in and- to the business houses Kremelberg & Co., New York; J. D. Kremelberg & Co., Baltimore; Kremelberg, Shaefer & Co., New Orleans; and in the assets and property of every kind of said houses and firms;
    • “Now I hereby declare that the said assignment and conveyance to me was made and that I now hold the said property in trust for the. said John Frederick Kremelberg, Elizabeth Virginia Kremelberg, Har-' riet Ella Kremelberg, John Diedricli Kremelberg, Anna Marie Kremelberg, and Mary Augusta Kremelberg, in equal proportions share and share alike.”
    The only explanation offered as to why-this trust deed was made was Frederick’s dissipated habits. It'is one of the two" deeds on which this action is based.
    The other trust deed bears date on May 4th, 1883, and reads as follows:
    “Know all men by these presents that whereas John D. Kremelberg, late' of the City of Baltimore, deceased, in and by his last will and testament dated the 18th of September, 1874, among other things, devised and bequeathed as follows, ‘I give, devise and bequeath to my brother George and my son J. Frederick, in equal proportions all my interest in the following business houses, namely Kremelberg & Co., New York, J. D. Kremelberg & Co., Baltimore; Kremelberg, Schaefer & Co., New Orleans and in the assets and property of every kind of said houses or firms;’ Now for divers good causes and valuable consideration me thereunto moving, I do hereby declare that I hold and possess the one half part of the property devised and bequeathed to me in and by the aforesaid clause or item of said will in trust for John Frederick Kremelberg, Elizabeth Virginia Kremelberg, Harriet Ella Kremelberg, John Diedrich Kremelberg, Anna Maria Kremelberg and Mary Augusta Kremelberg, in equal proportions, share and share alike and agree with them to grant and assign the same to them whenever requested so to do, I paying to Messrs. Branker and Charles Martin each fifteen per cent, of the profits of said half part of the property devised and bequeathed to me as aforesaid and holding the other twenty per cent. • thereof to my own use.”
    The first question is, What dicl the property so bequeathed and'held in trust consist'of? What the parties thought at the time it consisted of is not doubtful. On the day before the second deed was executed, Mr. Tagart swore to his first account, and in that account he charged himself with ’the following-items: “Deceased interest in firm of Kremelberg & Co., $19,-577.91; deceased interest in firm of J. D. Kremelberg & Co., $31,980.74.” The firm’s books show, and it is conceded, that these figures represent the precise amount of the accumulated earnings left by John in the two firms named, for usé as capital.
    If these earnings constituted the whole of John’s interest in the two firms, the complainants have no case, for the-money has been fully accounted for. • The insistment is that Mr. Tagart’s account is wrong, in that he failed to charge himself with the value of the good-will and that George has, by the two deeds above set out, declared a trust in respect to it as well as of the money, and is now chargeable, not’ with its market value at the time of John’s death, but with the earnings of both firms, made after their execution, as far as those earnings are attributable to John’s interest. I have already said that-this was made up of the entire interest in the Baltimore concern, and of a one-fifth or, it is said, a greater interest in the New York concern. These earnings cover a period of thirty years, and amount, it is asserted, to over $580,000. The rather startling claim is made that they belong- to the defendants, less an allowance for management.
    The question that arises on this contention is, Was there a good-will that was valuable ?
    John Kremelberg died at the age of fifty-five. lie appears to have begun business as a commission merchant in New York in 1863. When he began in Baltimore does not appear, nor does it .appear what profits he made between 1863 and Í882. All that is fairly inferable from the testimony is that he lived well and was reputed wealthy.
    The good-will of an established business like Wanamaker’s or Altman’s is, no doubt, very valuable and may long survive its creator. -The good-will of the business-of a successful professional man, practicing alone, if good-will it may be called, dies with him. He is employed because of his personal ability and reputation.
    The good-will of the 'business of a commission merchant, originating with himself and carried on without fixed capital for fifteen or twenty years, would seem rather to resemble that of a doctor or lawyer than that of a retail merchant. John Kremelberg’s business transactions were with European correspondents, and he was, we may conjecture, trusted and employed by them because he was found to be a man of integrity and business capacity and because, as is testified to by Mr. Stellman, “lie had relations abroad which enabled him to obtain money to- almost any extent.”
    The case, of the two firms is somewhat dissimilar and will be considered separately.
    First, as to the New York firm: The partners, in 1882, were John D. Kremelberg, George Kremelberg and Adolph Engler. John lived in Baltimore; George and Adolph Engler in or near. New York. On January 1st, 1884, Engler owed the firm $4,-013.83; George, $8,894.66. The New York firm owed the Baltimore firm $26,523.91. There was, as far as appear0, no other assets and no other debts, except the debt, if so it may be called, which the New York firm owed John D. Kremelberg’s estate and which amounted to $31,980.74. This sum represented, probably, John’s share of accumulated profits and, as l have said, constituted the firm’s only capital. Now, .it is at once apparent that had the executor of John’s estate demanded payment, the New York firm would have been hopelessly insolvent. Its assets were less than $13,000 and its liabilities $57,000. I say this on the assumption—the only one that can be made—that the situation on January 1st, 1884, did not differ materially from the situation at the time of John’s death in May, .1882.

      The question is, What was the good-will- of a firm thus circumstanced worth? Would anyone have given anything for the mere name, J. D. Kremelberg & Company? Piad it been sold, George Kremelberg and Adolph Engler would have had the right to continue the business of commission merchants under an appropriate name. Would the European buyers have been likely to have thereafter dealt with the stranger who acquired the name rather than with George Kremelberg and Engler, whom they had long known and trusted and of whose business ability they had had satisfactory proof? Tagart; the executor, evidently thought the name of no pecuniary value. I say this because, as a lawyer of long experience, the friend, as well as the legal adviser of John, and the friend of his children, as well as the temporary custodian of their property, he could not have been ignorant of that species of property called good-will, and he must have desired to obtain for them all that the estate was capable of yielding, and yet, in his account, lie did not attribute any value to it.
    It seems to me that the evidence fails to show that the goodwill of the-New York concern had any substantial value.
    •Then we come to the Baltimore firm: This was composed of John D. Kremelberg and his son Frederick, a young man of dissipated habits, whom he had admitted as a partner with so small an interest that no witness is able to say what it was. The firm was for all practical purposes John D. Kremelberg. At an earlier date, he had dealt in cotton, petroleum, lard and other products, as well as tobacco, but prior to and after his death, he and his successors appear to have confined themselves chiefly to tobacco. The business required but few persons to conduct it— a manager under John and a few clerks. It .had been successful because of John’s ability and effort, coupled with his personal connections. If it retained its old clientele it was, no doubt, because George, the partner in the'New York concern, with which it was intimately affiliated, was able, in a measure, to supply the place of his brother and continue the business without apparent change.
    In the ease of Mullin v. Mullin, 96 Atl. Rep. 997, Mr. Justice Swayze, speaking of the good-will of an undertaker’s business, . uses this language: “The business of the decedent as distinguished from the tangible assets of the estate consisted only of such good-will as might attach to the name, ‘Estate of Peter M. .Mullim’ We think it doubtful whether in a business of that character consisting of personal services and evidently dependent largely, if not entirely, upon the personal characteristics of the individual, there could be any good-will even as late as four or five years after a man’s death.” If these remarks were true of Midlin’s undertaking business, as the case shows it to have been conducted, a fortiori are they true of 'this commission business. If the new firm succeeded, continuous success was due, not to the name, but to the satisfactory way in which the tobacco was being bought for and shipped to European correspondents.
    Mr. Tagart, at least, did not attribute any money value to the name, for he only charges himself “with deceased’s interest in' firm of Kremelberg & Company $19,577.91,” a sum which, as I have said, represented the precise amount of accumulated profits left with the firm at John’s death.
    But whether the name had a money value or not, is quite immaterial, for it conclusively appears that the interests of the children were safeguarded and that they got all the benefit from it that they were entitled to.
    At the time of John’s death the capital consisted of the $19,-577.91 just mentioned and of $32,000 which belonged to four of the children—$8,000 to each. There were two gentlemen who were chiefly concerned in its conduct under John, viz., Branchor and Martin. John’s will, as I have said, gave all his interest to his son Frederick and his brother George. Frederick conveyed his share to George, who thus became the sole owner. As far as appears, he was not under the slightest obligation to give his own half to anyone; that he was under an obligation to declare a trust of Frederick’s share appears only from the fact-that he did so on the day on which Frederick conveyed to him. There was considerable argument on what was meant by the words of bequest “interest in the business houses.” . I have no doubt whatever that they included the accumulated profits; that Tagart thought so appears from the fact that he charged himself with them. It is hardly open to doubt that George intended to declare a trust in respect of what had been bequeathed, and of that only. Before he declared the trust of May 4th, 1883, Messrs. Brancker and Martin had come into the business as partners. The agreement was that the $19,577.91 and the $33,000 should remain as capital; that the children of .John should receive fifty per cent, of the profits; that Brancker and Martin should each receive fifteen per cent., and that he (George) should receive the remaining twenty per cent. Miss Ella Kremelberg, the second daughter of John, who became guardian of her younger sisters, and who acted, as far as necessary, for the family, so-states. This is her testimony:
    “Q. Was it your understanding that the members of your family become partners in the firm of Kremelberg & Co.?
    “A. Yes.”
    Then after testifying that the agreement was that the children were to have one-half of the profits, plus six per cent, on the capital invested, she is asked:
    “Q. At the time when you made the arrangement in 1883, do you recall as to what was to happen to the remaining fifty per cent, of the profits? Who was to get those?
    “A. The other partners.
    “Q. Who were those partners who were to get them?
    “A. Mr. Martin, Mr. Engler and George. .
    “Q. Who else?
    “A. I imagine Mr. Brancker.
    “Q. Then the arrangement at that time was that the children of John D. were to have fifty per cent, of the profits and that the three partners, J. George Kremelberg, Mr. Brancker and Mr. Martin, were to get the other fifty per cent.'of the profits of the business?
    “A. Yes.
    “Q. Did you know in what proportion they were to get them?
    “A. I do not remember at the time. I have heard it now.
    “Q. Wasn’t this the proposition; that your Uncle George was to get twenty per cent, and each of the other gentlemen were to get fifteen?'
    “A. I expect that it was.”
    Now, this was the arrangement made contemporaneously, or almost contemporaneously, with the execution of the trust deeds. Ella says, “Mr. Martin and Uncle George arranged it and they told us.” It continued to be the arrangement from 1883 until 1895, when the children withdrew a part of their capital and made a new arrangement.
    Complainants, disregarding the rest of the arrangement, put themselves on-the trust deeds alone, but it is evident that these trust deeds were but. a part of the entire transaction. They 'do not in the least conflict with it. In the deed of May 4th, 1883,. George agrees to hold the one-half part of the property bequeathed to him in trust for the children: .
    “I paying to Messrs. Branker and Charles Martin each fifteen per cent, of the profits of said half part of the property devised and bequeathed to me as aforesaid and holding the other twenty per cent, thereof to my own use.”
    This harmonizes exactly with the arrangement testified to- by Ella. As to Frederick’s half, George had, in the December previous, agreed to hold that for the children in equal proportions. If it can be supposed that George then had in view the future conduct of the business, the deed itself makes no reference ‘to it. Perhaps the details had not 'then been worked out. • It is in nowise inconsistent with the arrangement actually made,- viz., that in the case of this share, too, as in the case of the other, Martin and Brancker were each to have fifteen per cent.' and George twenty. • •
    It could hardly have been imagined that Martin andBranCker would come into the business as principals without - suitable compensation.
    There is another consideration which seems to have been overlooked in complainants’ argument. There is nothing whatever to indicate that the gifts to Frederick and George were not gifts out and out. If John had intended a trust there was nothing to have prevented him from declaring it. He did not, and Frederick and George took absolutely. They generously surrendered to John’s children a valuable interest worth over $50,000. In doing so they had the right to impose terms and conditions.
    One of the underlying falacies of complainants’ position consists in the assumption that the profits of the business made through thirty years were the fruit of the name and not of the .efforts and ability of those who carried it on. In a case circumstanced as this is, the name would at best serve only as an introduction, if introduction were necessary, to the one who had acquired it. Thereafter success, as I have said, would depend upon the business ability of its purchaser. ..
    I have found that the trust deeds were put part's of one arrangement; but, if we consider them alone, the result would not be greatly different. George did not thereby undertake to continue the business and give John’s children the profits. Nothing of this sort can be found in these papers. All that he rmdertook- to do was to hold the interest bequeathed—that is, the capital and good-will as they stood at John’s death, for the benefit of the children:. He would have performed Iris whole duty had he called in or realized on the capital, including the good-will, if salable, and paid it over. Had he done so, it is absurd to suppose that the children would have received as much as they did receive. These" children are now claiming, not only what George obtained for them, but on the basis of his gift, raise up a claim to that which he did not give. They affirm the arrangement as far as it has benefited them; they repudiate it as far as'it has not given them all. They base their repudiation bn the impossible-notion that the profits have, for thirty years past, come- solely from the good-will, a good-will which, if it hád any value at all, had only an insignificant one and has long since" ceased to exist. In any' case the court would, after a lapse of thirty years, be reluctant to disturb a completed arrangement. Here there is nothing at all to provoke action.
    I have not thought it necessary to mention or consider the changes in the partnership agreement. The first arrangement lasted for' twelve years. Whatever changes took place afterwards were made after all the children had come of age and with their knowledge and consent.
    ■ The bill is devoid of all equity and should be dismissed.

      Mr. Ghaancey G. Parker, for the appellants.
    : -Mr. Francis Laferiy, for the respondents.
   Per Curiam.

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

For affirmance—Garrison, Swayze, Trenchard, Bergen, Black, White,. Heppeniieimer, Williams, Taylor, Gardner—10. -

For reversal—Minturn, Kalisci-i—2.


source: Caselaw Access Project

author: Per, Curiam.

license: Public Domain

text:
    Ignatz Pusakowski, appellant, v. Woodward Lumber and Supply Company, respondent.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, who filed the following opinion:
    It seems to me that the order to show cause and the ad interim restraint in this cause- should be set aside. I am not at all satisfied that the entire questions involved in the case and now presented by the bill were not settled by the order made by Vice-Chancellor Stevenson, and, further, -that the decision of Judge Tennant on the application made in the law court to have the judgment satisfied was not conclusive; but, aside from this, it does not appear from the proofs before me that the complainant is entitled to relief in this court. Pusakowski does not allege that he had an equitable defence of which he could not avail himself at law. By his bill it appears that all the stock notices were served on him prior to November 24th, 1908, the date on which original process was issued by the Woodward company in the district court. He submitted himself to the jurisdiction of tire law court, defending- the action therein. He was fully cognizant of the fact that parties had made claims against any moneys he had belonging to Budolph growing out of this transaction. I cannot agree with your contention that the defendant waived any right by accepting out of the moneys in the court of chancery pajunent on account of its judgment. It was the Woodward company’s material that helped to produce the fund, and it is entitled to have so much of it as it had a lien upon, applied upon account of the amount due on its judgment. It was for the benefit of Pusakowski that the defendant be permitted to accept part of the fund in payment of its judgment. If it had not done so, then the money paid to the Woodward company would have been ordered paid to the other claimants.
    There does not appear to be force in the suggestion that, because the defendant set up in its statement filed in the bill of interpleader the notice served by it as a ground for claiming part of the fund, it thereby waived its right to proceed with its execution for the balance thereof.
    The answer, somewhat conclusive, to this claim is, that the defendant not only set up the notice it served to entitle it to part of said fund, 'but also set up its judgment.
    The Woodward company, in the statement filed by it in the eighth paragraph, claims to be entitled- to part of this by reason of the service of the notice, &c.; and in the ninth paragraph claims to be entitled to said'fund by reason of its judgment.
    The Woodward company did not voluntarily go into the court of chancery. It was proceeding upon its judgment by issuing execution thereon, and levying on the property of the complainant, when it was restrained by this court until the rights and priorities of the parties to the fund in the court were determined.
    . Hpon this determination it appeared that the balance of the fund, after the pajnnent of the laborers (Vice-Chancellor Stevenson having adjudged that the laborers under the amendment oi the Lien act had a prior lien upon the said fund from the Woodward company), went to the Woodward company.
    An order was then made by the vice-chancellor dissolving the injunction restraining the defendant from proceeding on its execution..
    This gives a clear indication of what his views were about the situation.
    Further, it appears to me. that the contention of the defendant’s solicitor that the injunction could not issue until the complainant had given satisfactory security to pay the judgment must be upheld.
    The statutory provision regarding this is as follows:
    “No injunction shall issue to stay proceedings at law in any personal action, after verdict or judgment, on the application of fhe defendant in the said proceedings at law, unless a sum of money equal to the amount due at the time of such deposit upon said verdict or judgment, with costs, shall be first deposited with the clerk of .the court by the applicant for said injunction; and, on notice, said applicant shall give equal security by bond, as the chancellor shall deem good, to the party or parties at law against whom such judgment is prayed, in double the amount then due on said verdict and judgment of the cause at law, with the condition to abide such order and decree as the chancellor shall make in the premises; or if the bill be dismissed, to pay the amount of such verdict and judgment, with costs, with interest thereon.”
    Tn the case of Morris Canal and Banicing Go. v. Bartlett, Ayres & McFarland, 3 N. J. Bq. 9, which was a bill for inter-pleader and for injunction, it was held that the statute applies as 'well to a bill of interpleader where an injunction is prayed for as to other cases.

      Messrs. Hershenstein c(? Finnerty, for the appellant.

      Messrs. Benny <£• Cruden, 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 Lewis.'

For affirmance—Garrison, Swayzb, Bergen, Minturn, ICalisci-i, Black, Wi-iite, I-Ieppeni-ibimer, Williams, Taylor, Gardner—11. '

For reversal—None.


author: Per Curiam.

text:
    Georgina W. Thomas, appellant, v. William J. Thomas, respondent.
    [Submitted March 23d, 1917.
    Decided June 18th, 1917.]
    On appeal from a decree of the court of chancery advised by Advisory Master Roe, who filed the following opinion:
    The petitioner prays for divorce from bed and board on the-ground of extreme cruelty.
    The parties were married November 29th, 1904-, and lived together as husband and wife until August 26th, 1915, at which time the' petitioner left the house of the defendant. Two children were born of the marriage, one on August 28th, 1905, and the second child in June, 1911.
    At the time of the marriage, the defendant had two boys by a former marriage, aged nine and thirteen years, respectively, and who lived in the family.
    The trouble between the parties was' occasioned by these children. The petitioner, it is clear, disliked these children, and did nothing to win their confidence; she gave them no care nor attempted to exercise control over them. . This is plainly indicated by petitioner’s statements of the filthy condition of the room in which these children slept, their careless habits and their long absences from their home.

      The first serious trouble between the parties occurred in 1906. Petitioner saj's her husband became angry because of the boys. Exactly why, she does not say, but says these boys stayed away some days—and that her husband catching hold of her, throwing her down said, “This is iny boys’ home, if you do not like, it get out.” Tins statement would indicate that the defendant was angered because the petitioner had driven his two young boys from the home.
    In 1908, the petitioner complains that her husband refused to furnish her medical attendance, and that she was forced to go south with her mother for her health. The husband denies that he ever failed to provide such medical attendance when necessary. The fact that the petitioner did come back in 1909 and continued to live with her husband, and the further fact appearing that no trouble existed between the two until the summer of 1911, after .a second child was born, is sufficient to eliminate all consideration of all prior acts to this date.
    On May loth, 1911, Leonard, the oldest stepson, was arrested and the defendant accused the petitioner of causing this arrest.
    The facts and circumstances of this arrest do not appear, but upon this occasion, the defendant became very angry and called his wife vile names, striking her, and said he never would cohabit with her again.
    That from that date until August 26th, 1915, they occupied different rooms and never lived together as man and wife: '
    The defendant says he attempted to reconcile' his wife but she refused—this is not denied.
    In October, 1912, she interfered with her husband in correcting their child, and she says he struck her then.
    From then until March, 1915, there is no evidence showing the manner the parties lived together, except the general statement of the wife that defendant did not give her the money she required. On this last date, she says her husband threatened to throw her over the banisters, upon her demand of him for more money, and that in May, defendant became angry because she had taken some sugar that belonged to him and struck her, but nothing else is detailed.

      The petitioner left her husband’s house in August, 1915. No facts are given upon which the court can determine the cause of her leaving at that time.
    The defendant practically admits these facts, but says he gave her all his wages until about six months before she left when she refused to cook or provide anything for him and from that time forward he gave her the amount she says.
    The defendant’s conduct, whatever may have been the provocation, in striking his wife or in calling her names, which he admits, is reprehensible, and does not entitle him to any consideration. He has been guilty of using vile language and actual violence towards the wife he had promised to protect. His conduct is not excused by the fact that he was angry or that the conduct of his wife provoked him to these extremes.
    On the other hand, the petitioner herself is not guiltless. In a measure she provoked these outbursts on the part of her husband. She, undoubtedly, had formed a- dislike for her stepchildren, and her description of the manner in which these children lived, or tried to live at that house, indicates that she did not do her duty as a wife. They were her husband’s children, and it was her duty, as the wife of the defendant, to have exercised a care over them, and she appears never to have exercised any care. On the other hand, she has neglected them, whether from her own dislike of them or to tantalize her husband, does not appear, but the ■ fact does appear that in this respect she made her husband angry and continued to make him angry and to call down upon herself the treatment of which she complains.
    They lived together for eleven years and these outbursts extended over that period at recurrent intervals. At the time she left there was nothing that had taken place that would lead her to .any apprehension with regard to her safety - or health. She had deserted her husband for some period before she left his house.
    “Extreme cruelty,” as defined by the courts of New Jerse}7, is ' laid down in Close v. Close, 25 N. J. Eq. 526, and that is:
    _ “Where the husband has been guilty of or there is reasonable ground to apprehend that he will be guilty of any actual violence that will endanger the safety or health of the wife, or where he has inflicted upon her any physical injury, accompanied by such persistent exhibition of ill-feeling and opprobrious epithets as will endanger her health, or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, the decree of separation should be pronounced.”
    This doctrine is approved in Taylor v. Taylor, 73 N. J. Eq. 74-5, wherein it says that where there is no physical violence towards her, that slje must prove that the conduct is such as to place her life or health in danger and to render her life one of extreme discomfort and wretchedness such as to incapacitate her in the discharge of her duties.
    In the latter case, the husband used profane language and was indifferent to his wife, but the court held that this was not sufficient.
    In the same court, in Smith v. Smith, 40 N. J. Eq. 566, it was held that a charge of incest made by the husband against his wife, and persisted in without cause, attended by slight acts of violence, suspicious conduct, and a reasonable apprehension of bodily harm, is a good ground for separation.
    Our courts have never held that coarse and profane language, actual violence, or lack of proper food and medicine, are of themselves sufficient grounds for divorce from bed and board. They go a step farther and say that if any of these acts of the husband will endanger the safety or health of the wife or that there is reasonable ground to apprehend that they will render her life one of such wretchedness as to incapacitate her towards the discharge of her duties. In that case only will a decree be granted.
    In the present case, none of these acts of personal violence, running over a period of ten years, axe of such chaxacter as to endanger petitioner’s safety or health—they were outbursts of anger and'of no serious character. The same may be said of the use of the vile 'language—it only occurred at these angry moments. The refusal of more money for petitioner than she thought necessary does not bring this case within the doctrine of “extreme cruelty.”
    But, in the present case, it is clear that the petitioner brought-about this very state of affairs. There are mutual obligations' which the husband as well as the wife must perforin. If the wife, knowing the disposition of her husband, persists in a course of conduct that brings on a state of facts of which she complains, shé is not entitled to relief. Duvale v. Duvale, 34 Atl. Rep. 888; affirmed, 65 N. J. Eq. 771.
    She had it in her power to stop the acts of which she complained. If she had treated thosé children by his former marriage with kindness; if she had cared for those children, as it was her duty to do, instead of refusing to care for them or look after them, it is evident-that this conduct of her husband toward her would not have occurred. If she had performed her wifely duties, looked after her husband and his children, provided them food, it is evident they would not have occurred later, but she persisted in her refusal to do this, and this fact alone shows that she disregarded the treatment of her husband of which she complains.
    The petitioner -is not entitled to the decree prayed for, but the case is one of such character that either of the parties should not be precluded from using the facts proved in this case in seeking other relief.
    I advise a decree dismissing the petition without prejudice.

      Mr, John U. Sheridan, for the appellant.

      Mr. William 0. Gudlipp, for the-respondent.
   Per Curiam.

From the testimony taken before the advisory master we reach the same conclusion that he did, viz., that the petition of the appellant should be dismissed. The decree of the court of chancery is affirmed.

For 'affirmance—Garrison, Swayze, Trenctiard, Parker, Bergen, Minturn, Kalisci-i, Black, White, IIeppenheimer, Williams, Taylor, Gardner—13. ■

For reversal—None.


text:
    Walter E. Slattery, appellant, v. Ida F. Slattery, respondent.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery advised by Advisory Master McDermott, who filed the following opinion:
    The petitioner and defendant were married April 24th, 1902, in the city of New York, and appear to have lived happily until the summer of 1907. They have one child, who was born in July, 1905.
    In the year 1907, the defendant spent a large part of the summer at Earmingdale, in Monmouth county, boarding at the home of the mother of Edward Hobcroft, who is named as co-respondent. The petitioner remained in the city during the greater part of the week, but visited his wife and child over the week ends and spent his vacation of two or three weeks with them. At this time the petitioner became convinced that Hob-croft and the defendant were too friendly. Their friendly relations continued after their return to New York in the fall of 1907, and in the early part of 1908 the petitioner requested Hob-croft to keep away from the defendant. He continued to visit her, and in the summer of 1908, when she was in a hospital, in New York, called on her, held her hand and kissed her on coming into her room and leaving it. While the defendant was in the hospital the petitioner took their child and established • a homo for himself, away from his wife. After leaving the hospital she brought a proceeding in New York to obtain possession of the child and was unsuccessful. Since then they have lived apart.
    The petitioner, after voting in Brooklyn on election day, 1913, removed to Jersey City, where he claims to have resided ever since. The child lives in the home of his brother at Richmond Hill, New York.
    The petition, which was filed November 15th, 1915, charges defendant with desertion from Juty, 1908, and adultery with Edward Hobcroft. The answer denies both charges and -by way of cross-petition alleges desertion on the part of the husband, extending from the month of July, 1908.
    The petition and cross-petition, so far as they seek a divorce’ on the ground of desertion, must be dismissed, as the desertion complained of commenced and continued for more than two 'years before the petitioner became a resident of this state, so that he did not have the necessary residence in this state when the cause of action arose to give the court jurisdiction. The defendant has never resided here. Flynn v. Flynn (Cowl of Errors and Appeals), 92 All. Rep. 645.

    The charge of adultery has been vigorously pressed by petitioner and his counsel and an able argument in support thereof presented orally and by brief. I am, however, unable to reach the conclusion that adultery has been proved. The defendant and Edward Hobcroft have been friends since they were children and his attentions to her have been marked, and their conduct is open to severe criticism. They have, in the presence of the petitioner or his friends, and without any apparent concealment, kissed each other; in the hospital, where he went as a visitor, he sat and held her hand; in many ways they gave evidence of a deep interest in each other. Although requested by petitioner to keep away from his wife, Hobcroft refused to do so, and has continued to live near her, and for a long time in the same apartment, occupied by her, her mother and other relatives. '
    The feeling of the wife towards her husband is bitter in the extreme, due to the fact that while she was confined in the hospital he took away their child and afterward defeated her application for custody in the supreme court of New York She is unwilling to return to him and is not ready to agree to give up association with Hobcroft, even though it may affect her right to the custody of her child or the opportunity to visit it. While her conduct in this and other respects is reprehensible there is no evidence of lewdness on her part, or of any indecent language or action, and she is not shown to be depraved. As a witness she was unusually frank and admitted without hesitation substantially all the acts charged against her claimed to indicate affection for or interest in Hoberoft.
    I will advise a decree dismissing the petition and cross-petition.

      Messrs. Ziegener & Lane, for the appellant.

      Mr. Wendell J. Wright, 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 Advisory Master McDermott.

For affirmance—Garrison, Swayze, Trbnohard, Bergen, Minturn, Ivaltscii, Black, Taylor—8.

For reversal—Parker, White, Heppenheimer, Williams, Gardner—5.


text:
    Vineland Trust Company, complainant-respondent, v. Katharine Westendorf et al., defendants-appellants.
    [Decided March 12th, 1917.]
    On appeal from a decree of the court of chancery reported in S<6 N. J. Fq. 8h$.

      Mr. Ilenry S. Alvord, for the appellant.

      Mr. Levereit Newcomb and Mr. Robert II. Southard, 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 Backes. • '

For affirmance—Ti-ie Ci-iiee-Justice, Garrison, Swayze, Trenciiard, Bergen, Minturn, Kalisoii, Black, I-Ieppeniieimer, Taylor, Gardner—11.

For reversal—None. -


text:
    Emil Pozzi, respondent, v. Emma Pozzi, appellant.
    [Decided July 13th, 1917.]
    On appeal from "a decree of the court of chancery advised by Vice-Chancellor Griffin, who filed the following opinion:
    The petitioner seeks a divorce from his wife on the ground of desertion.
    Prior to the marriage petitioner boarded in the family of defendant’s mother. The family consisted of the mother, her daughters and a son. Petitioner occupied the back parlor, and defendant a room on the floor above.
    On September 28th, 1912, the marriage was solemnized by Pastor Laufer of the First Presbyterian Church of West Hobo-ken. This change in status does not appear to have changed their mode of living; he continued to occupy the back parlor and she the room above.
    The petitioner offered to pay the mother for his wife’s board, $-1 a week, being the amount he was paying for his own. This the mother refused, with a clear indication that she did not want her daughter to have anything to do- with him.
    About three weeks after the marriage Lily Wells, a sister of the defendant, seized the petitioner by the coat and pushed him out, telling him to stay out. This is corroborated by Joseph Galli, and was denied by Lillian only on cross-examination.
    On October 28th, 1912, the petitioner had Recorder Yollmer, of West Hoboken, summon the defendant and her mother to appear before him. The recorder heard their statements and gave them sound advice, questioned the petitioner as to the causes of her refusal to live with her husband, and she told him she had "particular reasons of her own why she would not live with her husband,” but refused to disclose them.
    Thus failing to secure her return, he visited Pastor Laufer on October 29th, 1912, to enlist his good offices. The pastor visited the home of the defendant the next day, but did not see her. He next called on Recorder Yollmer to get the facts and advise with him. They concluded, as he puts it, that it would be "best to let matters run their course.” In the meantime the petitioner called on him several times.
    In the spring of 1913, the defendant called to see the pastor and asked him if he could get the petitioner to see her. He asked her if they had ever lived together, and she said no; and also if they lived together as man and wife, and she said no. He asked her if the petitioner had been willing, or expressed a desire to provide a home, and whether he had rented rooms; she admitted that he had. He never brought them together in his presence.
    The petitioner rented rooms, and offered to rent rooms several times, and asked the defendant to rent rooms; and in one instance where he rented rooms in agreement with the defendant, he scrubbed the floors, gave her money to buy furniture, and she bought it, and after it was installed refused to take up housekeeping there, compelling him to give up the rooms and place the furniture in storage.
    Defendant visited the petitioner at various places where he resided, and upon being asked to come to. him she was in the habit of saying, “You malee me sick talking about living together,” and frequently said, “Why-don’t you say that you won’t live with me?”
    After their marriage the petitioner says that neither occupied the same room, nor had they sexual intercourse. This is denied by the defendant, who ■ offered her sister Lillian to prove their occupancy of the petitioner’s room (the back parlor) after the marriage; but defendant and petitioner are not in accord as to the time. The defendant, prior to her marriage, did not occupy the same room with Lillian, but shared it with another sister who was not called to testify.-
    Although there were other sisters, a brother and her mother comprising the family, who could testify as to the room the parties occupied, and also the conditions in the household, and his removal, none except Lillian was called to support the defendant’s statements.
    The evidence clearly demonstrates that down to the filing of the petition in this cause the petitioner was anxious and willing to live with his wife; whereas, it is perfectly clear, that the defendant had no intention of assuming marital relations with the petitioner.
    It is difficult to perceive wherein the petitioner did not do everything that could be reasonably expected from a just man bent upon procuring his wife’s return.
    A decree will be advised for the petitioner.

      Mr. Isidor II. Brand, for the respondent.

      Mr. James G. Agnew, 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 Yice-Chancellor Griffin.

For affirmance—Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Heppeniieimer, Williams, Taylor, Gardner—13.

For reversal—None.


text:
    Public Service Railway Company, respondent, v. James S. Frazer et al., appellants.
    [Argued March 9th, 1917.
    Decided June 18th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, who filed the following opinion:
    In this case I will announce orally the conclusions I have reached, leaving written conclusions or opinion to be' filed hereafter, if necessary.
    It is important, in the public interest, that the question of a preliminary injunction should be disposed of at once. There are one or two preliminary questions. One of them relates to the nature of the jurisdiction of the court of equity in cases of this kind. I think it rests on two familiar rules applying to that court. One is the ground of irreparable injury, and the other is the ground of the control of the management of a common easement. The injury is of a character' that is usually classed with these so-called irreparable injuries. This is a technical legal phrase, meaning, as Judge Dixon defined it in J-Iart v. Leonard, N.'J. Fq. Jld, 4®0, an injury for which the damages that may be recovered according to legal rules do not afford adequate compensation. Any considerable interference to public travel comes within the class which are called irreparable injuries. I had occasion to consider the equitable jurisdiction in this class of cases in the late case of Public Service Railway v. Westfield, which was considered in the court of errors and appeals also. SB N. J. Eq. 68; oh appeal, Ibid. 662. It was not suggested at the argument by counsel on either side, but it occurred to me that this is also one of those cases where there is a common easement connected with the service of the public in streets, and there is also a dispute in relation to the use of the street in the respective rights of the parties. In such cases there is a right to control by the court of equity of the use which shall be made in common. The Public Service Eailway Company claim- a permanent or continuous right to the use of a portion of the surface of the public street for the purpose of public travel. The sewage commission and the contractors under them claim the right to the temporary disturbance of the surface of the street, including the removal of the railway tracks, for the purpose of exercising the right to construct a sewer. Questions arise here in relation to the extent of both rights, and it is a case where not only on the ground of control of a common easement, but also on the additional ground that this is the one court which by reason of its flexible procedure will be able to control and preserve the substantial rights of the parties pendente lile and pending the final disposition of the question of their rights. It cannot be done in any other way. So that I think it is one: of those cases that comes clearly within the equitable jurisdiction, and this is apparently the view of all counsel, for, on both sides, by the record, the bill and answers, the question of legal rights has been submitted to the court of equity without objection on either side. Both sides have by the bill and answers submitted the question of their legal rights in the street, so that on the record there is no difficulty iu considering these legal rights, so far, at least, as is necessary in order to dispose of this preliminary application.
    This is an application for a preliminary injunction, and the general scope of that remedy is, that it goes so far, and no farther, than is necessary to preserve, as far as practicable, the rights of both parties pending the final determination, and subject to the final decision and decree. The bill is based on the complainant’s right to maintain and operate a street railway in Hamburg Place at the point in question, but it is not claimed that the right is absolute against all interference whatever, against other uses of the street that may be directed, either by the state immediately through legislative act or by delegation of its powers to a public body. Complainant’s rights and franchises in the street are subject to the right of the state, either directly or by its agents, for that purpose, to interfere with and interrupt the travel over the complainant’s railway so far as is necessary to promote other public service, such as sewers, for, which the use and control of the street may be necessary. The right to lay sewers and drains and to lay gas and water pipes in a highway are privileges annexed as incidents by usage or custom to the right of the public in a highway. ■ State v. Lávemele (Supreme Court, 1870), S3 N. J. Law 201, Beasley, Ch. J., p. 206; Stoudinger v. Oity of Newarlc, 28 N. J. Eq. 187, 191; affirmed on appeal, Ibid. (1877) M6. The’general principle of the right to interfere with the surface of the street, where necessary for the construction of a sewer, is not disputed.
    The questions in this case which are disputed by the parties are—(1) what is the meaning of the word “necessary?” and (2) who is to be the judge, finally, of what is necessary and to establish the limits of interference ?
    The state in this case has expressly given to the sewage commission powers of such interference. I refer to the statute now, for the reason that its terms were not specially referred to on the argument, and apparently the statute itself does not give an absolute right to interference, but gives a right with an express qualification. I refer to page 164 of the laws of 1900, chapter 102. Section 7 of this original act gives express power “to construct the sewer under, over or across any street * * * in such manner, however, as not to unnecessarily obstruct or impede travel or navigation.” That is the language of the grant. That is the same language used in the act of 1907, section 5, except that by some apparent clerical error the language in the latter act is “in such manner as not necessairily to impede.” There may possibly be a mistake in the section as published in the pamphlet laws. But I take it that the two acts together givte the power to interfere, but with the limitation that the interference with travel must not be unnecessary. The commissioners must, in the first instance, construe that limitation, and it appears by their answer, and also by their affidavits, that on this question of interference with travel they have, in directing the construction of their sewer, considered that question as having a bearing on the method or manner of construction at different points. And in reference to what must be considered by the commission upon this question of obstructing and impeding travel, my view now is that that would include travel on the public streets by means of the street railway as well as other kinds of travel. In the first place, the only reason the street railway has any right on the public streets is because it is a part of the public travel, and this is the basis on which they get the right to occupy the streets without payment of compensation to owners of land. The street has been dedicated to public travel,-and travel by street railway is a method of public travel. And in the second place, in-a good many of the streets the travel by the street car constitutes the bulk of public travel. Só, that the commissioners would be obliged to consider that method of travel in connection with other travel on the streets wKen they come to decide upon the method of constructing their sewers. It appears by the affidavit of their engineer, Mr. Brown, that this has been their practice, and that in certain parts of the city of Newark, considering the question of obstruction of travel, they have required tunnel construction, so that the construction would interfere little, if at all, with travel. For this particular location now in question they have considered the question of public travel and the obstruction of it, and in determining the question of what interference was necessary at this location for the purpose of carrying out the work which they were incorporated to do—that is, the construction of the sewer, they have determined that the constructilon shall be by the open-cut method. One of the main reasons, if not the main reason, in connection with the establishment of that method, was the addition to the expense which would be required by.reason of the tunnel construction. In view of the entire situation they have determined that interference to a certain extent, and by the open-cut construction is necessary, and they claim that they have the right to take into account the expense of the other method of construction in connection with the amount of travel that is disturbed, in determining the necessary interference with public travel for the purpose of carrying'- out the -main work • directed by the statute, the construction of a sewer under certain limitations as'to cost.
    The first point in dispute, on the record here between the complainant and the commission, or the contractors claiming under the commission, is whether a necessary interference with travel does not mean necessary in the sense that it cannot be done otherwise, as an engineering or physical fact. My present view is that the words “necessary interference” mean “reasonably necessary,” in view of the whole duties imposed on the commissioners by the act and of the whole scope of the act, and that they are therefore entitled to interfere to the extent that-would be reasonably necessary, taking the matter of expense as one to be considered. The extent to which the commission have interfered, according to their claim made on the r.ecord at the hearing, is this—I call attention to it here especially because the contractors on their part insist that the interference is greater than the commission now say the interference is—-the commission by their answer say that, claiming only the right to interfere so far as is reasonably necessary, in order to carry out the act, they have determined upon the open-cut method construction, but in order not to unnecessarily interfere with' travel by the open-cut construction, they have provided by their contract for such construction for the continuance of the service of public travel during the removal of the tracks by the open-cut method. They say by their answer that this is what they intend to do, and that they have done so by the contract. This answer of the sewage commission is important in two aspects—first, as showing the judgment of the'commission as to the extent of interference that is reasonably necessary—that is, not an absolute discontinuance of travel at the point where the open-cut section is provided, but an interference which, while it will remove those tracks during the construction, will also provide for the continuance' of travel during the time of construction. Now, the complainant has the right, so far as the commission is concerned, to accept that judgment of the commission as intending to provide for a continuance of travel during the construction. If it should turn out eventually by the final decision on the contract that the contract has not, as between the contractors and the commission, provided for this, that would not, according to my present view, affect the right of the complainants to claim that the interference should be on that basis—that is, providing for the temporary accommodation. The commission insist that by the proper construction of their, contract such maintenance is provided for, and they refer to the clauses in the contract in which in general terms it is provided that the public service shall be maintained: Article 4, section 2, and also section 18, “wherever it is necessary to interfere with any existing structures (in the public streets) of whatever kind, the contractors shall maintain their respective service.” The commission say “we have acted and our action is put in the formal shape of a contract, and we have there provided, and we intended to provide, for the continuance’of the service.” If this contention or admission of the commission were all there were in the case relating to the question of the amount of interference provided for, then, inasmuch as the contractors claim under the commission, and have no rights that are superior to the rights of the commission, the only question to be disposed of would be, whether the complainant’s rights against the interference are as extensive as - claimed in their bill. The claim apparently made by the bill is, that the interference must be “necessary,” in the sense or meaning that the sewer could not from an engineering or physical point of view, be constructed without interference, and that the matter of expense,, or at least such expense as would be incurred, is not an element in determining the necessity. My present view is that complainant’s rights are not so extensive as claimed in tire bill, and that their rights are only such as are consistent with an interference “reasonably necessary,” and that I could not give any preliminary injunction based on their having, a clear right to a broader kind of service and freedom from interruption. It -is possible that on final hearing that broad claim may be determined to be their right, but my present view is that it is not their right, and certainly this right is not so clear that an interlocutory injunction should go.
    But this complication arises in reference to the admission or contention of the sewage commission as to their decision or determination upon this point of the provision they have made for maintaining the service of travel during construction. The commission do this work not directly but by contract. They do not act by ordinance, as does a common council; ■ their final action is the contract evidencing their determination, and from my reading of the statute, I take it that is the only method provided for their action—they have made a contract and thus have acted. The contractors now insist, by their answer and on the hearing, that by the proper construction of the contract the contractor is not required to maintain the provision for service of travel on complainant’s railway pending the construction. The general expressions in the contract in which the phrase is used, the “contractors shall maintain the public service and shall not interfere with any existing structures,” and which are relied on by the commission and complainant, do not,’ as contractors insist, by the proper legal rules applicable tc the construction of contracts, extend so far as to include street railway service as a branch of the public service referred to. And their insistence upon that claim is, that this phrase is used in connection with other specified public service, such as gas, water and light, and therefore by the rules of construction applied to contracts, the provision for maintenance must be limited to the services specified and those structures of the character specially mentioned. That is the contractors’ claim in reference to the contract. It at once introduces in this'case a complication which is perhaps an- additional reason for the final control of the whole question by a court of equity, because the complainant whose rights are interfered with being here and presenting this bill, its legal rights may he protected either to the particular extent it claims or to a narrower extent. The court on final hearing may give 'them just the right they are entitled to, and no more and no less. On the other hand, the'commission who are here pro-, fessing to have acted for the purpose of securing the rights, of the complainant, and all the rights the, commission consider conqolainant to be entitled to, presents its contract as the measure of the duty it intended to perform and as a performance of its full duty. If their whole duty has not been performed by the contract, an’d on the final hearing in this case it should be determined that the contract did not provide for the whole of their duty, then, so far as the complainant is concerned, the final question will be, is not the commission bound to do that, so far as the complainant is concerned, by protecting it against such interference as was not reasonably necessary ? And if. on the final hearing the claim of the contractors should be sustained, that this action of the commission, which is the only action by which they are bound, does not provide for the maintenance of travel, then the question would arise, is not the complainant, as against the commission, and also as against the contractors claiming under it, entitled to a decree that such protection should be afforded? And,-as between the commission and the contractors, if the commission in making the contract with its contractors to .take possession of the streets and to do this work, has made no provision for the maintaining of the public service—if that should be decided finally to be the construction of the contract—then, as between them and the contractors, the equities might be decided as upon an obligation on the part of the commission to furnish to the contractors the means for carrying out its contract and performing its duty. So, on the final decree of this case, if the contractors’ claim as to the construction of the contract should be finally decided in their favor, it would settle the equities as between the commission and the contractors in reference to imposing any additional duty on them in reference to the construction of the sewer and the interference with complainant’s travel. This is for the reason that, according to my present view, the complainant is entitled to be protected against any interference not reasonably necessary, and such protection would include provision for temporary accommodation of travel.
    That being the situation as to the issues involved for the final determination, the question is as to the order which should be made on' interlocutory injunction to preserve the rights of all parties, so that on the adjustment by final decree they may be protected. And I think 'it is clear that on reading the affidavits, the question upon which the complainant and the contractors have finally split, is as to the expense: Who is obliged to pay the expense of this alteration, if made? The final disposition of that question should be left for the final decree in the cause on disposing of all equities. But it is a case where the continuance of the public service of both kinds cannot be left for the argument on final decision, and therefore the question is, on the record as it now appears, on this application for temporary injunction, who should, in the first instance, incur that expense? On the whole status of the case, as it appears on the records and affidavits now, my view is that the contractors should, in the first instance, incur this expense and provide for the protection of travel, by way of maintaining a temporary accommodation, and that their right to be reimbursed such expense, either from the complainants, if they are not entitled to be protected at all, as the contractors claim, or by claim against the commission for imposing oh them in the construction of the sewer a work that was not included in the contract, would be settled by final decree at the hearing. The right to reimbursement from either one or the other, if their claim is finally established that it is not included in the contract, would be then decided. This can be worked out, as I think, by an injunction under the bill, and I give counsel the suggestion for the order for injunction.
    The bill and the answer show that the contractors propose to tear up this track and remove it if the complainants did not remove it within a certain time fixed. That removal contemplated onty the absolute discontinuance of travel. There was no suggestion in their letter about removing the track in connection with or for the purpose of providing any other track at that locality during the interruption. Their whole offer and their claim—as the claim is put here very fairly—is:
    “We claim the obligation on the part of the railway company to remove their tracks at their own expense, and to discontinue all service at that location while we are building the sewer and to put back the tracks at their own expense when we are through.”

      That is the claim as made, not only in the letter, but also in the answer and on the argument. And then the threat follows:
    “If you don’t remove on that basis, then we will remove the tracks, allow travel so far as we are concerned to be discontinued until the sewer is finished and leave you' to put the tracks back.”
    I think the contractors should be enjoined from tearing up the tracks, as threatened in the letter—that is, in connection with the claim that they have the absolute right to tear them up and leave-travel interrupted, but that the injunction should not operate to prevent them from interfering or taking up the tracks in connection with and for the purpose of carrying out the provisions for a temporary accommodation while the tracks are taken up. For instance, suppose the offer had been in this case, “we now call on you to remove the tracks and offer to pay the expense, and also the-expense of providing temporary accommodation, and if you do not within a reasonable time undertake to remove the tracks and provide temporary accommodation, we shall have to do it at our own expense.” That is a different kind of an offer to tear up the tracks from the other, and it is an offer which would protect all the rights the complainant has, according to my present view. The o'ffer on the part of the contractors, either to do the necessary work themselves or have the complainants do it at their expense, take up the tracks, and then replace the tracks, offering to pay the expense, if accepted, would allow this construction to be carried on, and in order to preserve the contractors’ right at the final hearing, the order should contain the further provision that any such offer made, and any action or payments made in carrying out such offer, should not prejudice the complainant’s right on final hearing to claim from either of the parties reimbursement of the whole or any part of the money expended. The order may be required to be worked out with some care, but I think counsel can get my view of the scope of it.
    . The provision for a temporary side track is a method which all parties agree on, I think, as one method of temporary accommodation of travel. Mr. Brown in his affidavit says there juay be others, but before signing the order, I would reserve the right to the parties to be heard, if they do not agree on the terms of the offer. This may be settled finally by the court, 'if the parties do not agree.

      Mr. J. Edward Ashmead, for the appellants.

      Mr. Frank Bergen,'for the respondent, Public Service Railway Company.

      Mr. Adrian Biker, for the Passaic Valley Sewerage Commissioners. '
   Per Curiam.

The decree' is affirmed, with costs. We agree with the vice-chancellor’s construction of the jiowers vested in the Passaic Valley Sewerage Commissioners and his definition of the word “necessary.” We express no opinion on ihe question whether the covenants in the contract between the sewerage commissioners and the contractors can avail the complainant.

For affirmance—Garrison, ' Swayze, Tkenchard, Bergen, Minturn, Kalisoi-i, Black, White, I-Ieppenhbimer, Williams, Taylor, Gardner—12.

For reversal—None.


text:
    Gardner Valve Manufacturing Company, appellant, v. John L. Halyburton, respondent.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following- opinion:

      This is' a bill to' compel specific performance of a contract to assign patents for straight way valves. The defendant, Halyburton, invented them in 1902. From that time on, he made efforts to interest capitalists ^n their manufacture but without success. In the fall of 1906 he was introduced to Elsworth P. Baylor, a coal dealer and merchant in Hampton, or Junction, as it was then called, a small .town on the New Jersey Central railroad about fifty miles from New York. Baylor was eager to have a factory built there and lent a ready ear to Iialyburton’s proposal that a company should be organized with a view to there carrying on the business. It was thought that if $100,-000 could be raised by a sale of preferred stock that would suffice to^erect, the building and commence operations.
    In-October, 1906, a company was incorporated with an authorized capital of $300,000, divided into twelve thousand shares, of which four thousand were to be preferred stock and eight thousand common. The plan, for it hardly rose to the- dignity of an agreement, was for Bajdoiyto procure subscriptions to the amount of $20,000, and for Halyburton to procure them to the amount of $80,000. Halyburton was to transfer to the company his patent, when issued, and receive therefor the common stock ($200,000). The original subscribers to the organization stock were Halyburton, Baylor and a figure head, Burrell. These were also the first directors. Although they made considerable effort, neither Baylor nor Halyburton was able to procure any subscriptions. This is not surprising, for the patents had not as yet been issued and no practical demonstration of'the merits of the invention had been made. Baylor, however, had so much confidence in the ultimate success of the enterprise, -that by Jammy, 1909, he had advanced to the company to pay current expenses $3,200. Nearly all this money was received by Hatyburton for salaiy, to enable him to maintain himself while engaged in bringing his invention to the notice of the public. He had no money of his own.
    Up to the fall of 1908 nothing had been accomplished, and Baylor, evidently, had become anxious to get security for what he had put in. . At a meeting held on January 30th, 1909, the board of -directors, then consisting of Baylor, Haljburton and Transue, authorized an issue to him of one hundred and twenty-eight shares of the preferred stock, for the money he had advanced. At the same meeting there was taken the action on which this suit is based. I quote from the minutes:
    “The Secretary then presented the following communication received from John Halyburton: ‘To the Board of Directors of the Gardner Valve Manufacturing Co., Gentlemen, I have pending applications for letters patent of the United States upon a new and novel invention for straight way valves.
    “ T hereby agree that if you will issue to me 7,996 shares of your common capital stock, I will sell and assign to you such applications and the letters patent when granted and also all improvements I may hereafter make thereon.
    “ ‘Very truly yours,
    “ ‘Jan. S0th/09. John L. Halyburton.’
    “On motion of Frank Transue [who had been substituted in the board for Burrell] the proposition of John L. Halyburton was accepted and the secretary directed to notify him that when the actual assignments covering all patents issued and applied for at the date of this meeting were made to the corporation, there would be issued to him or such person as he might nominate common capital stock of this company amounting to 7,996 .shares.”
    Hpon the strength of this action Baylor advanced to the company $2,000, in addition to the $3,200 already advanced. This went partly to Halyburton as salary and partly to pay for a catalogue and some valves then being made under Halyburton’s direction by others. Halyburton, at, or shortly after this time, secured from Transue, who had become president, and from one or two other acquaintances about $3,000 more. No stock was issued to these gentlemen and they now disclaim any interest in the company by reason of what they contributed. The only person other than Baylor who seems to make any claim is the witness Lepper, an engineer, who at the beginning gave a little money and did some drafting.
    The minute book does not record any meeting- after that held in January, 1909, until July 29th, 1914, when il was resolved by Baylor and Flynn (who had taken Transue’s place) that there be issued seven thousand nine hundred and ninety-six shares of the common stock to Halyburton, the same to be delivered upon his executing an assignment of his letters patent. What interest Flynn had in the company (if any) does not appear. Evidently, the action was taken with a view to the commencement of a suit for the benefit of Baylor and Lepper. The company, as far as appears, owed no debts. The only assets were the patents, if their transfer could be compelled. In case of dissolution'Baylor as a holder of preferred stock would, under the certificate of incorporation, be entitled to a preference in the distribution.
    Halyburton had moved his family to Hampton, in .1909, and remained there until 'the spring of 1911. Having, during that interval, failed to secure the needed capital, he began to make efforts to start the manufacture elsewhere. At the beginning these efforts were known to and acquiesced in by Baylor. On December 12th, 1912, without informing Baylor, Halyburton made an agreement with the defendant the American Car and Foundry Company by which he gave it “the exclusive right to manufacture, use and sell, and to be caused to be manufactured, used and sold, articles and devices embodying his inventions.” The company, on its part, agreed to equip at its Berwick, Pennsylvania, plant a department for the manufacture of valves, and to take Halyburton into its employ for five years. It has spent nearly $100,000 in carrying out this agreement. Its vice-president, Mr. Dickerman, says that he thinks the valve a good one. He testifies further that they have attempted to market it in a small way with unsatisfactory results; that they have scrapped valve parts that had cost them, ten or twelve thousand dollars; that they have made very material improvements, and that they have now reached a point where they .are about ready to put it on the market.
    Such in brief is the situation. The question is whether the complainant is entitled to a specific performance of Halyburton’s accepted proposal. This is resisted, first, on the ground that the court will not enforce performance of a contract which violates the policy of the statute (section '49 of Corporation act) authorizing stock to be issued for property purchased, to the amount of the value thereof. Second, on the ground of laches.
    In reply to the first objection complainant contends that the patents were worth $200,000, and that, if not, the defence is not specifically set up in the answer. If the contract be illegal the court cannot give it effect. If it be “one, the enforcement of which would violate public policy,” said Mr. Justice Dixon in Minzesheimer v. Doolittle, -60 N. J. Eq. S97, “the court will not, for any delinquency of defendant (in the matter of pleading), lend its assistance to such violation.”
    It is perfectly plain, on the evidence, that this contract .does violate the policy of the Corporation act. There is no proof worthy of the name that the invention in its then stage of development was worth $200,000.- Lepper, indeed, testifies that it was worth, in his opinion, $300,000, but the very ground on which, he bases it shows it to be worthless. Asked how he arrived at the amount, he says, “Because it would easily make that much money.'5 Now, if anything is clear, it is that it would not easily do so. Halyburton says that he made the invention as early as 1902. For the four years before the company was organized) he had been trying to interest capital on its behalf and had failed. The company was formed in 1906, and for two years thereafter, devoting all his time and energies to its perfection and to an endeavor, with Baylor’s assistance, to procure subscriptions to the capital stock, he accomplished nothing. The first patent did not issue till October, 1908, and the second until. October, 1910. The resolution accepting- Halyburton’s proposal was passed in January, 1909, and over two more years were consumed in a further endeavor to put a few valves, made by outsiders, on the 'market, and to induce others to take up their manufacture, but without success. Finally, Halyburton made his agreement with the car company, and even then the invention had not reached a stage of development in which it became practically remunerative. The ear company, after creating at great expense a department for the manufacture, was obliged to scrap valve parts that had cost ten or twelve thousand dollars. Mr. Dickerman says that with the very-material improvements that they have made, he expects to be able to market the valves, but has not as yet done so. . Halyburton assigned his patent rights in consideration of a five years’ employment, first, at a salary of $250 per month, and then on a commission equal to one and one-half per cent, of the net selling price of all articles embodying his invention.
    This statement shows how impossible it would have been, on an honest valuation, to declare that in 1909, in its then condition, the invention was worth $200,000. In fact, no declaration or valuation of any sort was made or attempted. The directors did not go through the formality of resolving that it was worth that or any other sum; and that they did not intend to give Halyburton stock to that amount is apparent from the understanding of all concerned that upon its issuance he would return half of it to the company’s treasury. If this court should enforce the contract, it would do so against the statute and the course of decisions. Volney v. Nixon, 68 N. J. Eq. 606; Eastern National Bantc v. American Bride Co., 70 N. J. Eq. 782; Ecuwdoriatn Association v. Ecuador Company, 71 N. J. Eq. 767.-But even if the contract was legally enforceable, there have been such laches' as would prevent its enforcement. According to its terms it was enforceable immediately. Defendants argue that it was conditioned upon the raising of $100,000 cash capital. I doubt if the evidence sustains this contention. I am strongly inclined to think that,.as Transue suggests in his letter of October 25th, 1909, and as Baylor testifies, the real reason why the resolution was passed was that Baylor wanted security for his past advances and for the money he was about to advance and that Halyburton was willing to give it. The proposal having been made and accepted, Baylor thought himself safe. He did not want a formal transfer and a formal issue of stock because, as he said in one of his letters, that would have imposed upon the company the necessity of paying a larger franchise tax. After the year 1910, both Halyburton and Baylor appear to have given up all hope of raising the necessary capital. At that time the three directors were Baylor, the treasurer; Transue, the president, and Halyburton. Baylor and Transue knew that Halyburton had begun to make an effort to establish a plant elsewhere. Transue knew, before he broke with Bajdor, that Halyburton was negotiating with the car company. Baylor did not know this, but he had every reason to believe that he was still trying to put his patent to account. Under these circumstances, it would seem that it was the duty of complainant, if it wished to insist upon its rights, to have taken some action. It (and Baylor, Halyburton and Transue were the company) must have supposed that Halyburton was likely to do that which would trencli upon those rights and that others might innocently .be drawn into expending money because of Halyburton’s apparent ownership. The mental attitude of these two gentlemen-. is no doubt correctly depicted in the letters written by Transue to Baylor at that time. In that of October 25th, 1909, he says:
    “I don’t see what canse you have for worriment as you are better protected than any other person, in case there was a failure and in the event of success you will get more out of it than any one else. * * ■* I have nothing to show for the amount of money I have in it but 1 feel absolutely safe. We have our remedy, if anything goes wrong, and Halyburton has everything to lose. The patent rights, in my estimation, are very valuable and would if offered for sale, bring a great deal more than what you and X have already put in the Company.”
    In another letter written, subsequently, lie says:
    “We are preferred stockholders [in point of fact no stock appears to have been issued to Transue] and as such come in ahead of him [Halyburton]. The agreement that he made to assign those patent lights will hold him as he gets common stock for it and would therefore, in ease of a failure or receivership, come in after us. * * * ,1 am only saying this in the event anything should happen and you are forced to do something. I thinh the best thing for us is to say nothing about' it' to any outsider and let the matter drift along until such time ás he finds out that he can’t raise the funds, and asks for help.” .. , 1
    'It is quite probable that 'the matter would have “drifted” until1 now had it not been for the agreement made with the 'car company. This company, unquestionably, acted in good faith and without actual knowledge of the accepted proposal. It searched the record of assignments of patents and found nothing; and it spent large sums of money in making the invention practicable. The bill was filed in September, 1914, nearly six years after the right to demand the transfer had accrued. Baylor says that after Halyburton left Hampton he did not know where he was. He made some effort to locate him. It is not pretended that iialyburton was in hiding and Transue knew'where he could be found. I have no doubt, under the evidence, that a painstaking effort on Baylor’s part would have been attended with success. ■ Without reference to the question whether the inspection of the Gardner Yalve Company’s catalogue, stating on its cover that it was the manufacturer (not the assignee or sole licensee) of Halyburton valves, affected the car company with constructive notice of the existence of the contract, it seems to me that the fact that the complainant waited so long (whether because Baylor did not want to pay a larger franchise tax or for other reasons), and the further fact that the car company has in good faith spent so much money on' the faith of Halyburton’s representation, that all previous negotiations with others had fallen through and that he was free to negotiate would make it highly ■inequitable now to enforce a sjiecific performance.
    The amended bill prays in the alternative that in case a specific performance be refused Halyburton may be decreed to refund the money advanced to him. The company paid Halyburton an agreed salary. It is not pretended that he was remiss in his endeavor to promote the company’s success. . He performed the service for which the money was paid. On what principle, then, can he be decreed to return it? He treated Baylor shabbily in not at least tendering himself ready, at some future time, if he could, to repay the whole or a part of the money which -he had received .from him and which had enabled him to live. But the venture was a speculative one. It was so regarded by the four other gentlemen who also gave their money. There was no agreement to return it in case of failure, and, consequently, no legal ground upon which a money decree can be based.

      'Mr. Linton Saiberbhwaite and Messrs. McCairier & English, for the appellant.

      Messrs. Collins & Corbin, for the respondents.
   Per Curiam.

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

For affirmance—Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, ICalisci-i, Black, Hedreni-ieimer, Williams, Taylor, Gardner—‘12.

For reversal—None.


text:
    Jane Shaw Hepburn, respondent, v. United Water, Gas and Electric Company et al., appellants.
    [Submitted March Term, 1917.
    Decided June 18th, 1917.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Learning, who filed the following opinion:
    I am unable to entertain a doubt touching the disposition that should be made of this case.
    The primary question is whether or not -this stock was trans- • ferred by Mr. Shaw to Mrs. Hepburn in good faith and for valuable consideration at the time claimed. I would have been better satisfied in this case if Mr. Shaw had been present and testified touching these various transactions, but it is impossible to give substantial weight to an adverse inference by reason of his absence. If this stock was in fact transferred in good faith by Mr. Shaw to his daughter for valuable consideration, as is claimed, he could not at this time in any way derogate the title of his daughter, but his testimony would, be enlightening and of great value, whether his attitude may at this time be friendly to her or hostile.
    There can be no doubt, I think, in the mind of anyone that Mr. Shaw was indebted t'o his daughter. No one could well question the fact that he owed her $35,000, even had he testified to the contrary, in view of the circumstance that upon his own books there is an account in recognition of that indebtedness. So, we can proceed, in any event, upon the assumption and with the fixed belief that he was honestly indebted to his daughter in an amount far in excess of the value of these certificates which are here in question. It matters not that Mr. Shaw had originally laid the foundation for or contributed to the fortune which she had, if he in fact subsequently borrowed from her. The fact that he borrowed $35,000 from his daughter is not only declared against him by his books, but is fully' established by the testimony of the witnesses familiar with the transaction. It follows that, owing her this money, it was his privilege, under the law of this state, to prefer her as a creditor, however much he may have been involved in his financial matters; even though he was at the time insolvent it was his privilege to pay to his daughter a debt which he honestly owed her, if he saw fit to do so, and in that manner constitute her a preferred creditor. He had like power, if he saw fit, to give her this stock by way of security for the money which he owed her.
    It seemed to me at one time, in listening .to the testimony, that the transfer of this stock from Mr. Shaw to his daughter might have been, in legal contemplation, by way of suretyship, rather than as a.n absolute transfer for payment, as there appears to have been no definite amount of credit agreed upon; but I am not at all sure that that is so.
    Mr. Hepburn has testified positively and unequivocally that the assignment of this stock was signed by Mr. Shaw in his presence and witnessed by him in .May, 1915, and that the stock certificates, so transferred, were at the same time delivered to him by Mr. Shaw for Mrs. Hepburn on account of the then ex-, isting indebtedness of Mr. Shaw to Mrs. Hepburn. If we are to doubt that this stock was transferred in that manner and at that time, as testified to by Mr. Hepburn, and for the purposes which he has testified, we are obliged to convict him in our minds of willful and deliberate perjury. So, too, if we are to entertain a doubt that in January preceding Mr. Shaw promised to do what Mr. Hepburn says he did in May, we are likewise to convict Mrs. Hepburn of deliberate perjury, for she has said positively and unequivocally that in January her father promised to turn this stock over to her.
    It is, undoubtedly, true that in the subsequent negotiations of Mr. Hepburn, ’ touching the sale of this stock, he dealt with it in a manner that in some respects indicated that it really belonged to his father-in-law; but we must weigh those transactions in the light of the negotiations that were then pending. It is not reasonable, under the circumstances then existing, 'to suppose that Mr. Hepburn would have found it necessary at every or.even any stage of the proceedings he was conducting to be careful to declare that this stock was the property of his wife or that it had been transferred to her, although not in her name, upon the books of the stock company. Had he observed special care to make altogether unnecessary declarations of that kind it would have created more suspicion in my mind and would have been the source of more patent suggestion of some understanding of an improper nature between him and his father-in-law, with a view of avoiding creditors of his father-in-law, than the transactions which did transpire suggest. A" careless attitude not infrequently suggests innocence of purpose. He knew, as has been shown, that- at that time his father-in-law was pecuniarily embarrassed. The circumstance that he did not carefully guard against any conduct or statement indicating- that this stock still belonged to his father-in-law indicates quite as fully his condition of mental security in his own then unchallenged position as a man who knew that the stock had been delivered to him for his wife in payment of a debt as it indicates that the transaction may not have been of that nature.
    In a great number of suits of various kinds that have been tried before me where conveyances or transfers have been made and an attack upon their bona fides has been pending under a claim that they were only simulated, I have almost uniformly observed that the careful and studied conduct of a fraudulent grantor or grantee to avoid doing anything or saying anything that could by any possibility be urged as an indication of the want of bona fides in the transfer is one of the most powerful badges of fraud that exists. It more frequently occurs that the failure to protect oneself and to guard against a future claim of want of bona fides is evidence of good faith.
    Now, without going into the details of the testimony of the case or discussing in detail its different aspects, I can say nothing that is really more forceful than to merely state that I fully believe that Mr. and Mrs. Hepburn have told the truth upon the witness-stand. I believe that this money was due to her; that in Januarjg or thereabouts, her father promised to turn this, stock over to her in payment of the debt, or as a security or for her protection, and that later, in May, he did turn it over for that purpose, in the manner testified to by Mr. Hepburn. I cannot believe that either of those two witnesses have testified falsety, and if that is true, a,s I believe it is, there remains no doubt touching the disposition that a court is bound to make of this case. The stock then became the property of Mrs. Hepburn, and nothing that transpired after that, either by the conduct of Mr. Shaw or by that of his creditors, could in any way miJitate against her title. As owner of the stock she became entitled, and- is now entitled, to have it transferred upon the books of the company that issued it, and a decree will be advised directing the officers of that company to transfer upon its books in the usual and customary manner these certificates of stock so that they may be placed in the name of Mrs. Hepburn. . If counsel will prepare a decree of that nature and submit it to the adversary, to see whether there is any objection to its form, I will advise it.

      Messrs. Grey & Archer, for the appellant Pennsjdvania Company for Insurance on Lives, &c.

      Messrs. Bleakly Slockivell (Mr. G. J. Hepburn, of Philadelphia, on the brief), for the respondent.

      Mr. Lewis Starr, for other defendants-respondents.
   Per Curiam.

The decree is affirmed, for the reasons stated by Vice-Chancellor Learning.

For affirmance—Garrison, Swayze, Teenci-iard, Parker, Bergen, Minturn,’Kalisci-i, Brack, AVhite, Heppeni-ieimer, Williams, Taylor, Gardner—13.

For reversal—None.