author: Stevens, V. C.

text:
    Lister Agricultural Chemical Works v. Esther G. Selby.
    [Filed November 19th, 1904.]
    1. A lease to a manufacturing corporation gave the privilege of purchasing the land leased, at the expiration of the term. The president was authorized to obtain a correction in the description of the premises. He did, in fact, obtain a new lease thereof, at the same rent for the same term, but the lease omitted the option given to purchase. — Held, (1) that the subsequent user of the property by the company and the payment of rent did not show notice to the directors of the contents of the second lease or acquiescence in its provisions; (2) that even if ratification by acquiescence were to be presumed, the acceptance of the second lease was not a surrender in law of the first lease, or of the term of years thereby created.
    2. The lease gave to the lessee the privilege of purchasing at a fair valuation by appraisement. — Held, that there was sufficient certainty as to price to warrant a decree for specific performance.

      On bill for specific performance.

      Mr. Charles L. Corbin, for the complainant.

      Mr. Richard V. Lindabury and Mr. Robert H McCarter, for the defendant.
   Stevens, V. C.

This is a suit to enforce the specific performance of a contract. In March, 1893, Edwin Lister executed a ten years’ lease to the defendant company of a plot of land adjoining the company’s works in Newark. The lease contains the following clause:

“The party of the first part [Lister] * * * does grant, demise and to farm let unto the said party of the second part the property or grounds now occupied by the buildings of the said party of the second part, and used for the manufacture of fertilizer, glue, &e., * * with privilege of purchase at the expiration of the lease at a fair valuation by appraisement,” &c.

On February 1st, 1899, William R. Weeks, as executor of Edwin Lister, executed another lease of the same land for the residue of the term granted by the prior lease. The reason for executing it does not appear on the face of the paper, except by inference. Iar the oral evidence it is vaguely stated that it was executed because the first lease was “imperfectly drawn.”

The defendant’s contention is that the company accepted the second lease and that this acceptance was a surrender, in law, of 'the first lease and of all its provisions. This the complainant denies. Comparing the two leases, we find that the term mentioned in the second lease expired on the same day (March 1st, 1903) that the term created by the first lease expired, and that their covenants are identical. There are three differences — -first, the second lease describes the premises more precisely; second, it contains a restriction upon the use of the land not found in the first lease; and third, it omits the clause giving the option to purchase.

I am of opinion that the company did not accept the second lease at the time it was made, and that it has not ratified it by subsequent acquiescence. It appears that shortly after Edwin Lister’s death his executor, William E. Weeks, a lawyer by profession, became president of the defendant company. The second lease was prepared by him. He executed it on behalf of the lessor, as executor, and on behalf of the lessee, as president of the company. It is attested by Edward Lancaster, the secretary of the company, who retained it after execution. The first lease was not canceled or given up, but remained, as before, in the custody of that officer. The first lease was specially authorized by a resolution of the board of directors, passed March 8th, 1893, which provided that the company would lease the land, with the privilege of purchase. No resolution authorizes the making of the second lease, and the minutes do not show that it was ever under discussion. Of the five directors, two are dead. Kehoe, one of the three survivors, swears that the talcing of a second lease was not discussed or considered by the board. Eobert Lister, another survivor, says that it was talked over; that he heard the directors say that the lease ought to be changed; that Weeks was president, and that they left it to him. He cannot recall any particular meeting at which this was said, nor does he remember what the change was to be. Lancaster, the secretary, has a vague recollection that the matter was discussed at some time prior to the making of the new lease, but he says that he may be mistaken. He thinks that Mr. Weeks’ idea was that the first lease was “imperfectly drawn,” and that because of the supposed imperfection the directors may have acquiesced in the making of a new one. The one person who could have given definite information on the subject, Mr. Weeks, the third surviving director, though present in court, was not called.

The utmost I am at liberty to conclude from the evidence is that in consequence of some supposed defect in the first lease the directors acquiesced in the suggestion of their president, a lawyer, that it should be corrected. The evidence does not show that this acquiescence was embodied in a resolution, recorded or unrecorded, or in any other formal corporate action taken before or after the paper was signed. The by-laws were not offered in evidence, and so I must assume that if produced they would not show any authority in the president to surrender the term and to release the option to purchase. There is no evidence tending to show that the board, or any of its directors, with the exception of Mr. Iiehoe, knew what the provisions of the new lease were, and Mr. Kehoe appears to have found fault when Mr. Weeks brought it to his attention.

It is undoubtedly true that a board of directors to whom the president of a company communicates his action in making a contract for and in the name of a corporation — action which it is within the power of the board to authorize, but which it has not in fact authorized — must disaffirm that action within a reasonable time. If the board does not disaffirm, it will 1)8 presumed to ratify. Indianapolis Rolling Mill v. St. Louis Railroad Co., 120 U. S. 256. But knowledge must precede acquiescence. It must, in the words of Chief-Justice Morton, in Murray v. Nelson Lumber Co., 143 Mass. 250, be shown “that the directors, or at least a majority of them, knew of the contract and its terms, and that with such knowledge they acquiesced in and adopted it.”

Authority, whether given in express terms or by acquiescence, to make a correction in the first lease, so as to make it express more accurately the intention of the board, as evidenced by their resolution of March 8th, 1893, is quite a different thing from authority to vary from that resolution in a material and, as the board may well have thought, highly important particular. The subsequent user of the property, and the payment of the rent, gave no notice of what Weeks had done, for these remained the same and were just as referable to the old lease as to the new. Bi-Spool Company v. Acme Company, 153 Mass. 404.

If I had come to the conclusion that the new lease was ratified by acquiescence, I should still have thought that there was no surrender of the old lease; that the new lease operated to confirm and not to destroy it. It is well settled that “if a lessee for life or years take a new lease of him in reversion of the same thing in particular contained in the former lease for life or years, this is a surrender, in law, of tire first lease.” Shep. Touch, ch. 17 p. *301; Tayl. L. & T. § 512. The instances given in Sheppard are a new lease, taken for a longer or a shorter term, or a new lease for the same term, taken on condition. The reason, obviously, is that the two terms cannot both subsist, in their integrity, at the same time. The lessor cannot effectively give again that which he has already given. And if both subsisted, double rent would be payable, which would obviously be contrary to the intention of the parties. Consequently, when the lessee accepts a new lease giving him a longer or a shorter term, or a defeasible term, in place of an absolute one, the law, in order to effectuate the paramount intent of the parties, says that the acceptance of the new lease by the lessee shall be, of itself and without further writing, a surrender of the old. Surrender “by act and operation of law” is expressly excepted from that provision of the statute of frauds which declares that no lease shall be surrendered unless it be by deed or note in writing. This reasoning loses much of its force when applied to grants of terms which are identical. Is it not more reasonable, in cases of this kind, in the absence of evidence to the contrary, to infer a confirmation of the term first demised than a surrender of it? Why should a lessee be deemed, by legal construction merely, to surrender a term, in order instantly to take it back at the same rent, where he still retains possession of the document which confers it? In so far as tire contract provisions of the second paper respecting collateral' matters — incidents of the term — are inconsistent with those of the first paper, they will, of course, on familiar principles, be held to abrogate them. Turning to the older digests, we find that this idea runs through the cases. In Viner’s Abridgment, under the title “Surrender in Law,” the author first states what shall be deemed surrender, and then what shall not be. Under the latter head are found the following cases: “If the lessee of a house accept a grant of the custody of the same house, no surrender is presumed.” “If the king grants an office by patent, acceptance of a new patent of the same office is no surrender of the first.” “If a lessor leases de novo to his lessee and another, it will be a surrender only for a moiety.” The later authorities are to the same effect. In Biddulph v. Poole, 11 Ad. & E. (N. S.) 713, Justice Erie, after stating that the doctrine of surrender was introduced for the purpose of giving effect to the intention — that it is presumed for the purpose of making a grant operative which would otherwise be without effect — in speaking of a lease which, not being a due execution of a power, had, nevertheless, been given expressly in consideration of the yielding up' of two prior leases, said: “The lease, therefore, was unnecessary. It did not substantially alter the lessee’s interest in the premises and was intended to confirm his interest under the subsisting leases. Now, it is not possible to conceive a more perverted application of the doctrine of'giving effect to the intention of the parties than to .hold that an instrument intended solely to confirm leases should be effective solely to destroy them.”

In Van Renssellar's Heirs v. Penniman, 6 Wend. 569, a second lease for the same term, at the same- rent, had been accepted by the lessee. The first lease was terminable on three lives and gave to the tenant a right to compensation for improvements. The second lease was terminable on one of those lives only; that life having expired, one of the questions was whether the right to compensation for improvements, as it has been given by the first lease, remained. Chief-Justice Savage said: “Under these circumstances, and no surrender having in fact been made of the first lease or of tire bond accompanying it, but both being retained bjr- the lessee, I cannot believe that a surrender was intended. The authorities say that the surrender, in cases of second leases is presumed from the intention of the parties. In this case, every circumstance, except the fact of receiving the second lease, altogether rebuts the idea of an intention to surrender the right to compensation for improvements. If no surrender was intended or made, then tire question arises whether both leases are in force, and whether rent is due on each. The only satisfactory answer which I can give is that the second lease was intended as a confirmation of the first.” See, also, Flagg v. Dow, 99 Mass. 18.

The cases cited by the defendant are not authorities to the contrary. In Lyon v. Reed, 13 Mees. & W. 284, the court was dealing with quite a different question, viz., the effect of a demise by the reversioner to a stranger, with the consent of a lessee in possession. Such a demise, Baron Parke held, would not amount to a surrender by operation of law. In Enyeart v. Davis, 17 Neb. 228; 22 N. W. Rep. 449, the question here discussed was not considered. The new term appears.to have expired on a different day and to have been given as the result of a settlement in which, as the evidence showed, it was intended to cancel the prior lease in toto. Hoag v. Carpenter, 18 Ill. App. 555, is quite irrelevant.

Coming to the ease in hand it would seem, from an inspection of the two instruments and aside from the oral evidence on the subject, that the second was given to correct a description of the land demised by the first. The first lease was not, in point of fact, given up, and manual delivery is regarded as material on the point of surrender. Thus Baron Parke, in Lyon v. Reed, supra (on page 304 of the report), speaking of the ordinary case of different terms, says: “No surrender by deed is necessary where, as is commonly the ease, the former lessee takes the new lease, and all which is ordinarily done to warrant the statement of the surrender of the old lease as a part of the consideration for granting the new one is that the old lease itself — the parchment on which it is engrossed — is delivered up.” In Egremont, Earl of, v. Courtenay, 11 Ad. & E. (N. S.) 702, 711, Justice Coleridge referred to delivery up as evidence of intention, and Chief-Justice Savage, in the case already quoted, referred to nondelivery of the lease then before him as evidence negativing the presumption of surrender. The omission of the clause giving the-option to purchase proves nothing. It does not concern the term one way or the other, and the restriction upon the user would be equally'effective whether, the term created by the first lease did or did not subsist.

If the leases be regarded merely as contracts and not as instruments conferring estates, the result is the same. The rule is thus stated in Clark Con. § 229:

“Where it is claimed that a contract has been discharged by a new contract, or by the introduction of new terms, the intention to discharge must distinctly appear to give rise to such an implication from the inconsistency of the new terms with the old ones.”

The argument was that the covenant to surrender up the premises at the expiration of the term contained in the second lease was inconsistent with the option to purchase found in the first lease. But precisely the same covenant is found in both leases, and it can therefore be no more inconsistent with the terms of the one than of the other. It is obvious that in both the covenant has reference merely to the term; that it is quite independent of the option to purchase.

Defendant’s next contention is that there is not sufficient certainty as to price to warrant a decree of specific performance. The clause which gives the option is “with privilege of purchase at the expiration of the lease at a fair valuation by appraisement.” It is argued that the court will not decree the performance of the contract until the price is determined. The cases relied upon prove the contrary. Thus, in Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. (12 Stew.) 160; affirmed, 40 N. J. Eq. (13 Stew.) 287, Vice-Chancellor Van Fleet said: “Where the parties have agreed that the land shall be conveyed, not upon a price to be agreed upon themselves, but at a fair price or at a fair valuation, there the parties having fixed a standard or measure of value without having designated any particular method for ascertaining the price, the court may, without making a contract, ascertain the price according to the standard fixed by the contract and enforce the contract.” In the prior case of Van Doren v. Robinson, 16 N. J. Eq. (1 C. E. Gr.) 256, the covenant was that P. W. “will reconvey * * * for a fair price,” and Chancellor Green said: “In this case the mode in which the price shall be fixed is not designated in the contract. It is required simply that it be a fair price. To ascertain that value by any mode of investigation will conflict neither with the letter nor with the spirit of the contract. I think, therefore, the contract is such as will justify a decree for specific performance.” See Jackson v. Jackson, 19 Eng. L. & Eq. 546; Fry Spec. Perf. § 219. These remarks apply to the present case. The property is to be taken at a fair valuation — that is, at its fair market price. This price is, as it necessarily must be, unless the parties agree upon it, to be ascertained by judicial methods. It is argued that the language employed shows that it was the intention of the parties to appoint their own appraisers. It shows the reverse. Appraisement by the court or its officers is as consistent with the words and spirit of the contract as any other. To interpolate, “by appraisers to be appointed by the parties,” would be to vary the terms of the contract and to vary them, not for the purpose of giving effect to the contract, but of defeating it.

No question is raised, either in the briefs or in the answer, as to the definiteness of the description contained in the lease of 1893. The eastern boundary of the land is not given, but it is described as being “the property or grounds now occupied by the buildings of the said party of the second part and used for manufacture of fertilizer, glue,” &e. The evidence shows that the property so occupied and used is that which complainant held possession of under a prior lease of May 8th, 1889, which describes the lands with reasonable certainty. Brooks v. Wentz, 61 N. J. Eq. (16 Dick.) 474. The bill gives a particular description of the land and the answer admits what the evidence shows to have been the fact, that the complainant was in possession of the land so described on March 8th, 1893.

The complainant is entitled to a reference to a master to have its fair value ascertained.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    The Camden and Trenton Railway Company v. The United States Cast Iron Pipe and Foundry Company.
    [Filed November 19th, 1904.]
    1. The use of the public highways-by street railway cars running on tracks there laid is a modification ,of .the public use to which those highways were originally devoted.

      2. The street railway companies enjoy the right to run their cars upon the public highways in common with other persons whose vehicles may be crossing over or passing on those highways.
    3. Everyone using such an easement, in common with others, is bound so to regulate his own use of the common right that he does not unreasonably interfere with other persons in their enjoyment of it.
    4. Express statutory limitation of the speed at which street railway cars may be driven along public highways, is not necessary to cast upon railway companies in using the public highways the obligation so to restrain the speed of their cars that other vehicles may reasonably enjoy the common use of the way.
    5. Where a street railway company using a public street can, by reasonably slowing the speed of its own cars, remove the probability of collision with other vehicles crossing or traveling the street, it has no equity to require other users of the way to provide expensive special devices to insure to the street railway company the opportunity to drive its cars in the public street safely at unlimited speed.
    6. When the circumstances which attend upon the enjoyment of a common easement of way at grade, by two or more users at the same place, show that the interference of one user with another will only be occasional and insignificant, this court will not compel the introduction by the later user of special devices to prevent collisions.
    On bill, answer and proofs.
    The complainant in this bill was originally incorporated by the name of the Monmonth Traction Company under the statute known as the Trolley act, approved March 14th, 1893.
    In October, 1899, the name of the complainant was, by certificate filed in the secretary of state’s office, changed from the Monmouth Traction Company to the Camden and Trenton Railway Company.
    The complainant company has constructed its electric railway from Camden to Trenton. A portion, by virtue of an ordinance of the city of Burlington, has been located and laid longitudinally along Pearl street in that city. The complainant company is now engaged in operating a street railway by the motive power of electricity for the carriage of passengers to and fro along the whole of its route, of which its tracks lying in Pearl street, as above stated, form a part.

      The defendant, the United States Cast Iron Pipe and Foundry Company, is a manufacturing corporation and owns tlie property lying on each side of Pearl street. It is presently conducting there the business of making cast-iron pipes. The nature of tire business requires the defendant company to have the use of steam railroad tracks across Pearl street and, therefore, across the tracks of the complainant company at that point, for the carriage of raw material and manufactured stock to and from the various departments of its business, and also to and from the Pennsylvania railroad, with which the railroad tracks lying in the defendant company’s premises connect and gauge. The cars used in the conduct of the defendant company’s business carry freight only. Their movement is accomplished by means of a steam locomotive furnished by the Pennsylvania Railroad Company, which has an engineer and fireman, conductor and brakeman on the train. <
    The defendant, the city of Burlington, has the regulation and control of the public highways of that city, one of which, Pearl street, is by all parties admitted to be.
    The complainant company with its electric railway tracks, the defendant foundry company with its steam railroad crossings, and the city of Burlington with its public highway, Pearl street, each has a right to the use of the same place, i. e., the location where the tracks of tire electric railway and those of the steam railroad will cross each other in Pearl street — the public highway.
    The bill of complaint is filed by the electric railway company to obtain a decree which shall adjust the manner in which the parties'shall respectively use and enjoy their several privileges at the points where each has a right of passage.
    The following diagram will indicate the lay of the land at the places in Pearl street, in the city of Burlington, touching which this controversy has arisen.

      Before the complainant company had filed its route, the defendant company had built, and had in use, a railroad crossing from one portion of its works to another. The location of this crossing is indicated on the diagram by the letter A. The complainant company has constructed its railway across the defendant company’s tracks at the point A without any dispute, and this crossing is not involved in the present controversy.
    In April, 1904, the defendant company obtained leave, by ordinance from the city of Burlington, to construct and operate three additional, separate single-track railways crossing Pearl street, one at a point twelve hundred feet east of Thompson street, marked G on the diagram; one at a point fifteen feet eastwardly from Thompson, marked B on the diagram; one at a point three hundred feet eastwardly from ITulme street, marked Z on the diagram.
    None of these three proposed crossings has yet been constructed. That one, at the point marked Z, the defendant company has, on this hearing, declared it has no intention to build presently, though it may construct it in the remote future. The other two at points B and G, the defendant company is presently about to build across Pearl street and the tracks of the complainant company.
    The ordinance of the city of Burlington, which grants leave to the defendant company to lay its three tracks across Pearl street, contains the following provision for the prevention of collision or other accident at the crossings in Pearl street:
    “Section 4. Be it further ordained and enacted that in the use and operation of the said railroads, where the same shall cross said streets, it shall be the duty of the said foundry company to cause proper notice of the approach of the cars on said railroads to be given by flagmen or others of the train crews, so that persons passing through and along the said streets shall be warned of the approach of such cars, and the said foundry company, as a condition upon this grant, as assented to by the acceptance of this ordinance, hereby covenants and agrees to indemnify and save harmless the said city of and from all damage to persons and property which may arise because of the grant herein given.”
    The complainant’s bill shows that all of the defendant company’s proposed railway crossings in Pearl street are at grade, that either steam or electricity is authorized to be used in the operation of the defendant’s crossings, and that the only provision made by the ordinance for securing the safety of the public in operating the crossings is that the defendant company shall cause notice of approaching cars on its railroad, to be given by a flagman, so that persons passing in the street shall be warned of the approach of the defendant company’s cars.
    The complainant alleges that it has an easement, entitling it to the use of its railway tracks on Pearl street, which is prior and superior to that granted to the defendant company by the ordinance of April 13th, 1904, and that, if a protective device be found necessary because of the defendant’s crossings, it should be erected and maintained at the expense of the defendant company.
    The complainant further alleges that in the conduct of the business of carrying passengers upon its railway it runs fift}rtwo ears daily over tire places where the defendant proposes to build its steam railway tracks across complainant’s line; that the running of the cars of the defendant company across the passenger railway tracks of the complainant will greatly endanger the safety of persons traveling in the complainant company’s cars or traveling in other vehicles along Pearl street, unless some such device as a derailing switch be constructed at the points of crossing, so as to prevent any collision between passenger cars running along the complainant’s electric railway and the freight cars of the defendant company crossing the complainant company’s tracks.
    The complainant alleges that it has requested the defendant to adopt some safe method of crossing at the crossings in question, and that the defendant has refused.
    The complainant prays that the defendant company may be restrained from constructing the crossings above named unless it provides the same with some suitable device for the protection of the public traveling along Pearl street at the points of intersection of the defendant company’s steam railway tracks with the complainant company’s electric railway tracks.
    The defendant company admits bjr its answer that it is about to construct at grade the crossing of the complainant company’s tracks at the point twelve hundred feet east of Thompson street (marked 0 on the diagram), and also the other crossing at the point fifteen feet eastwardly of the east side of Thompson street (marked D on the diagram). It denies that' the complainant company has acquired any right in Pearl street superior to the right of the defendant in the street, and that if any safety device is necessary for the protection of the traveling public it should be installed or maintained at the crossing of the defendant, and insists that the defendant company’s right in the street is superior to any right of the complainant therein, and that, if any safety device shall be installed, tire expense of erecting and maintaining the same should be borne by the complainant.
    The defendant denies that the complainant company passes, or has ever passed, over the locus in quo cars to the number of fifty-two daily; and that the operation of the railroad cars on the defendant’s siding across the defendant’s street railway tracks will endanger the safety of the traveling public, unless some derailing device be installed at the crossings in question. It also denies that any such device is necessary and insists that it would be a hardship to the defendant to deprive it of the economical and beneficial use of its property if it should be compelled to construct and maintain a derailing switch or device at the points of crossing, or to contribute to the expense of the construction or maintenance thereof.
    It denies that it has been requested by the complainant company to adopt a method of crossing which would prevent collisions. It denies that the provisions of the city ordinance, authorizing the defendant to cross P.earl street, are in any way inadequate, either for the protection of the public using the complainant’s cars or the public using the highway at Pearl street at the points where the defendant’s railroad tracks cross that street.
    The defendant alleges that it is an incorporated company under the laws of the State of New Jersey since the year 1899, engaged in the business of manufacturing cast-iron products, and has a plant on Pearl street, in the city of Burlington, consisting of two hundred' and fifty acres or more of land extending on both sides of that street for more than a mile; that it is the owner in fee of all that portion of Pearl street on which are the sites of the proposed crossings; that they are distant at least eighteen hundred feet from the property of any other person, and that the only buildings on that portion of Pearl street are those connected with the defendant company’s plant.
    The, defendant further alleges that more than ten years ago the McNeal Company (a precedent owner of the defendant company’s plant) constructed a railway crossing at Pearl street (at the point marked A. on diagram), and that the defendant company has continuously ever since used that crossing in the conduct of its business; that its cars, in passing across. Pearl street, are always drawn by a locomotive engine and at a speed never exceeding live miles an hour; that in operating the crossing a member of the switching crew, or one of the defendant’s employes crosses the highway ahead of the cars for the purpose of making certain that the highway is unobstructed and that the cars may be sent across it with entire safety; that the average number of the defendant company’s cars crossing on the single track (at the point marked A on diagram) has been about eight a day, and as both going and coming cars have to pass on the single track, the company’s business is seriously delayed and incommoded; that this inconvenience can only be overcome by tire construction and use of additional crossings; that for the sole purpose of accommodating the cars leaving its plant, it has arranged for the construction of the two additional sidings, one at a point twelve hundred feet eastwardly from Thompson street, at an angle of seventy degrees, and the other at a point fifteen feet eastwardly of the east side of Thompson street, at an angle of ninety degrees; that, by the construction of said new crossings, the number of cars to be hauled across the highway will be decreased, obstruction to travel on the highway will be lessened and the necessity of sending cars across the crossing after dark will be entirely obviated. The defendant further states that it does not expect to construct the third of the sidings described in said ordinance at the present time, and that the city’s consent to the laying of that siding was obtained solely with a view of construction at some distant date.

      The defendant further contends that the view along Pearl street is so uninterrupted that the cars about to cross may be so readily seen that the occurrence of a collision is extremely improbable; that it is not intended to have the cars cross at a speed exceeding five miles an hour, and always under control and preceded by a member of the train’s crew or one of the defendant’s employes on foot. The defendant insists that, under the circumstances narrated in its answer, it is entirely unnecessary that any derailing device should be installed or-maintained at the crossings in question.
    Issue was joined and the cause came to hearing on these pleadings.

      Mr. Linton Satterthwait, for the complainant.

      Mr. Howard Flanders, for the city of Burlington.

      Mr. John G. Horner and Mr. Frederick J. Faulks, for the United States Cast Iron Pipe and Foundry Company.
   Grey, V. C.

The complainant is a trolley company, which owns and operates an electric railway for the carriage of passengers from Camden to Trenton.

A portion of its route runs on a single track, longitudinally, through Pearl street, in the city of Burlington. The defendant, the United States Cast Iron Pipe and Foundry Company, owns both sides and the bed of that street, and maintains a’large pipe-making plant there, and has for some years connected the business carried on upon one side of that street with that done on the other by a steam railroad, which also connects with the tracks operated by the Pennsylvania Railroad Company running through Broad street, in Burlington.

The defendant company has obtained leave from the city of Burlington to build three additional tracks across Pearl street, for the conduct of its business, to be used solely for the passage of freight cars moved by steam engines. Two of these crossings, at the points marked B and G on the diagram, it proposes to build at once, and the other, crossing Pearl street at a point located three hundred feet east from the east side of Hulme street, the defendant company does not intend to build at this time.

In the ordinance of the city of Burlington authorizing the defendant’s crossings there are provisions that the speed of the defendant’s freight cars moving across Pearl street shall not exceed five miles an hour, and that its flagman'shall give notice of its approaching trains.

The complainant does not challenge the defendant’s proposed crossings because of their location or construction. What it objects to is the use which the defendant company proposes to make of these crossings by passing its freight cars over them. This proposed use at .the points B and 0, the complainant insists, will be an intrusion by the defendant upon the complainant’s right to run its railway tracks in Pearl street at any speed which it may choose. The complainant further contends that the provisions of the city ordinance that the defendant company shall limit the speed of its freight cars in crossing the complainant’s tracks to five miles an hour, and give notice by flagmen, &c., is insufficient as a protection against the possibility of collisions between the complainant’s railway cars, moving at the speed at which they are entitled to travel, and the defendant’s freight cars crossing the electric railway tracks. The complainant therefore insists that tire right asserted by the defendant company to cross the electric railway tracks at grade, in the mode proposed, conflicts with the complainant company’s right to drive its cars along Pearl street at unlimited speed, and entitles the complainant to the intervention of this court to compel the defendant company to put in some sufficient derailing device at the proposed crossings, to protect against this alleged danger.

The proofs show that the complainant company runs over fifty cars a day along Pearl street, and that it intends to increase probably to double that number. That the defendant company now uses its present one-track crossing, at the point A, eight to twelve times a day for the passage of cars drawn by a locomotive, and less frequently for the passage of hand cars pushed by the men. When the proposed new sidings are put in, most of the drilling of cars will be done inside the defendant company’s gates, without crossing the street, which will decrease the number of movements across the complainant company’s tracks very materially, so that at the outside they will not probably exceed four or five in the course of a day. Other changes in the defendant company’s work, attendant upon the construction of the new crossings, will also tend to lessen the number of movements across the complainant’s railway tracks on Pearl street and to clear the view of the points of proposed intersection.

The evidence shows that there is very little public highway travel along that part of Pearl street in which these proposed crossings by the defendant company will be located. So little, indeed, that the passage of ordinary vehicles across the points B and G, where the defendant company’s proposed crossings will intersect the complainant company’s railway, does not enter into consideration in ascertaining whether special protective devices should be there used.

The trend of the railway company’s complaint is that the construction of the defendant’s two crossings at the points B and G, unless some derailing device be there adopted, will compel the railway company, for safety’s sake, to check the speed of its cars in order to prevent collisions with the defendant company’s freight ears crossing its tracks.

The complainant’s argument is that under the law it is entitled to drive its cars along Pearl street, in the city of Burlington, at unlimited speed; that the intersections of its railway by the crossing tracks of any other railroad at grade must, per se, constitute a danger and be an interference with its chartered rights; that these circumstances entitle it to the intervention of this court to compel the defendant company to put in some protective device at the proposed crossings which will minimize the danger from collision of moving cars at those points.

The proofs in this case show that the proposed crossings B and G are so located that the employes of either company can readily see the movements of the cars of the ether as the proposed crossings are approached.

The crossing at the point A on the diagram has been used by the defendant company for years before the complainant built its electric railway. The complainant company makes no proposition to arrange for the installment of any protective device for that crossing. It may therefore be assumed that it expects to avoid possible dangers at the present crossing A, by instructions to its own employes to drive their cars at a slower rate of speed when approaching that point.

The crossing B, where the complainant insists a protective device should be installed, is distant only three hundred feet from the present crossing at the 'point A. The two crossings A and B lie so near each other, and are in their surrounding conditions so nearly identical, that any checking of speed by the complainant’s motormen at the crossing A may easily be continued until the crossing B is passed.

It may be true, as stated by the complainant’s counsel, that no limitation of the speed at which its electric cars may travel in the streets of a city, is imposed by the statute under which the complainant company is incorporated, or by the ordinances of the city of Burlington, but, in my view, that does not justify the continuous running of electric ears in public highways at a rate of speed which endangers every other use of such thoroughfares.

All the cases which have dealt with the status of street horse railroads and their successors, the electric railways, using public highways longitudinally, have been based on the theory that these uses of the highway are within those for which the land was originally taken by the public for a highway (Hinchman v. Paterson Railroad Co., 17 N. J. Eq. (2 C. E. Gr.) 75; Halsey v. Rapid Transit Co., N. J. Eq. (2 Dick.) 380); that the movement of street railway cars on their tracks in the highway, “is only a modification of the public use to which the highway was originally devoted.” Citizens’ Coach Co. v. Camden Horse Railroad Co., 33 N. J. Eq. (6 Stew.) 267. In that case it was expressly held, by the court of errors and appeals, that the legislative grant to a street railway company of the right to lay rails in a public street at the level of the highway, carried with it, in the nature of a condition imposed on the company, a permission to other vehicles to use the railway tracks as a place of passage to and fro, but not for the purpose of competing with the street railway company in carrying passengers for hire.

The effect of these and similar decisions is to declare that the movement of street railway cars along the public -highways is a use which the street railway companies enjoy in common with other vehicles traveling on these highways. Everyone enjoying such a common easement is bound so to regulate his own use of the common right that he does not unreasonably interfere with other persons in their enjoyment of it.

Express statutory limitation of the -speed at Avhich street railway cars may be driven along the public highways is therefore not necessary' in order to cast upon street railway companies the obligation so to restrain the speed of their cars that other vehicles may reasonably enjoy the use of the public way.

The rules regulating the speed at which steam railroad companies may drive their trains have no application to street railways. Each steam railway has the sole and exclusive enjoyment of its way, and its crossings of public ways are controlled by express legislative enactments. Pennsylvania Railroad Co. v. Matthews, 36 N. J. Law (7 Vr.) 531; New York, &c., Railroad Co. v. Leaman, 54 N. J. Law (25 Vr.) 202 (Court of Errors and Appeals).

It cannot, in my view, be maintained that every other user of the public highways must provide the electric railways with a clear passage to run their ears therein at unlimited speed. Where an electric railway company using a public street can by a reasonable slowing of the speed of its cars remove the probability of collision, it has no equity to require other users of the way to provide expensive and special devices to insure it the opportunity to drive its cars in the public streets at unlimited speed.

Each of these cases of claimed conflicting easements of way at grade at the same place must, of course, be decided upon the conditions existing at the locus in quo the dispute arises.

In the present case nothing appears which indicates that it is an unreasonable interference with the complainant’s right, to deal with these two crossings at the points A and B as subject to the same dangers, and capable being protected by the same precautions, which it is entirely within the complainant’s power to provide, namely, a checking of the speed of its cars as they approach- those crossings. As the remedy for the apprehended danger plainly lies within the complainant’s own control, there is no occasion for the intervention of this court respecting the crossing B.

The same principles apply to the objections made by the complainant to the proposed crossing at the point G, although the conditions there are somewhat variant.

Both tírese proposed crossings by the defendant company of the complainant company’s tracks lie within the limits of the public street of the city of Burlington which the complainant company is using longitudinally for its railway.

The crossing at the point marked G on the diagram, is about twelve hundred feet eastwardly from the crossing at the point marked B. All the disputed crossings lie- within a distance of a little more than a quarter of a mile.

A proper checking by the complainant company of tire speed of its cars while they are passing over this quarter of a mile- will afford all the protection needed to prevent collisions at the proposed crossings.

All the defendant company’s movements of its freight cars over both the proposed crossings, will be at points previously known to tire complainant’s employes. The defendant’s crossing cars may be readily seen by the complainant’s mo tormén as they approach the intersecting points.

The proof is that the present single crossing at the point marked' A, is now used by the defendant company about twelve times per day, a little more than once every working hour. The uncontradicted evidence also shows that by tire improved and additional facilities for the arrangement and conduct of the defendant company’s business, which will be afforded by the proposed crossings at the points B and O, the number of movements of the defendant’s cars across the complainant company’s tracks will be reduced to four or five in the course of a day— an average of about one cross -movement every two hours of a working day.

The circumstances show conditions which, indicate that the construction and use of the new crossings B and 0, instead of increasing the dangers to the complainant’s cars in passage along Pearl street, will actually lessen the present interference with their travel in that highway.

In order to justify the interposition of this court the complainant must show that the proposed acts of the defendant company will in their final result impose upon the complainant company an additional and unreasonable burden of care at the crossing points. The evidence goes to show the contrary of this proposition.

' A decree will be advised that the complainant’s bill be dismissed, with costs.


text:
    Mary C. Hartman v. Frank A. Powell.
    [Filed January 14th, 1905.]
    When a party, in derogation of the statute of frauds, claims an interest in lands by virtue of a parol permission, relying on which he has placed an improvement on the land, and seeks to restrain the owner from asserting his rights in the land in question, the evidence offered in support of the party’s claim must be demonstrative of his right. In this case — Held, the evidence presented in support of the complainant’s claim is insufficient.
    Ou bill, answer and proofs.
    The complainant is the owner of a house and lot on the north side of Stevens street, known as No. 579 Stevens street, in the city of Camden.
    The defendant is the owner of the adjoining house, on the same street, known as No. 577 Stevens street.

      The complainant alleges that, desiring to construct a new porch in front of her' dwelling, she had a conference with the defendant, who, she learned, also intended to make alterations to his porch; that the defendant gave her permission to- construct a foundation for a porch column for the space of six and one-half inches on his property and to construct thereon a column for her porch; that, in pursuance of said permission, and in exactly the location pointed out by the defendant, she constructed 'and located the foundation and column for her porch.
    The complainant alleges that her pier and porch column were so erected about the 12th of May, 1903; and that the defendant never objected to the plan of the column, nor to the location of the column and the foundation under the same— six and one-half inches on the defendant’s property — until about the 2d- of April, 1904, when he told the complainant that he had changed his mind on the subject and desired the complainant to remove the column and foundation which she had constructed on his property with his permission.
    The complainant further alleges that, having been put to great expense in the premises, and being required to go to still further expense if she should arrange for a new porch, she declined to accede to the complainant’s request. That he thereupon threatens, as he is arranging to build his own porch, that he will tear down the column and foundation under the same, which the complainant built to the distance of six and one-half inches on his (the defendant’s) property.
    This tearing down, the complainant insists, will cause an irreparable injury to her in the enjoyment of her premises, and she prays that the defendant may discover whether he did not consent to the placing of said column and foundation on his property in the location where it now is, and that he may be restrained from revoking his license and permission to the complainant to erect that column and foundation in its present location.
    The defendant answers the bill of complaint, denying that he gave any such permission or license as is set up in. complainant’s bill; and that he ever gave the complainant permission to use any portion of bis (defendant's) lands for a pier, and alleging, touching the matter in question, that the first intimation he had that the complainant was about to use any portion of his land was when her contractor, John J. Welsh, had the pier about half built; that the defendant then asked Welsh what he meant by using his land; that Welsh said that he would construct the pier so that the joint owners of 577 and 579 Stevens street could both use it, and that he would erect on the pier a column ten inches in diameter for the joint use of both properties; that the defendant assented to this and allowed the pier, partly erected on his land, to be completed. The defendant insists that the complainant and her contractor did not carry out the above stated agreement, but placed on the pier a column only eight inches in diameter, which the defendant cannot use.
    The defendant further says that lately, to carry out his own plans, he began the erection of a new porch on his property and informed the complainant that he would move the pier and column in question from his land to the complainant’s land without any cost to her and without impairing the substantiality, usefulness or symmetry of her porch; but the complainant refused to allow the defendant to move the said pier and column or. in anywise to use his own lands on which the pier is erected.
    Issue was joined on these pleadings and the cause .was heard on its merits.

      Mr. William T. Boyle and Mr. Henry S. Scovel, for the complainant.

      Mr. William J. Kraft and Mr. Howard Carrow, for the defendant.
   Grey, V. C.

There can be no question, I think, that the right to erect and maintain a pier and column for her own benefit upon the property of the defendant, which the complainant asserts in this suit, is such an interest in lands as the statute of fraiids requires to be in writing. Slie claims a riglit permanently to occupy and use the defendant’s lands and to exclude him from any enjoyment or use of the same. The terms of that statute declare that the force and effect of a parol agreement, creating an interest in lands, shall be to pass an estate at will only, whether it be asserted in law or in equity. Courts of equity have, however, in certain special cases, given relief against the operation of that statute, usually for the enforcement of the declared purpose of that act, as a statute to prevent frauds. Bills filed by a party who has performed his side of a parol bargain for the conveyance of lands to compel the other party specifically to perform the parol agreement, and other cases, where the enforcement of the statute will itself operate as a fraud, are within this class.

In this state the court of errors and appeals has, with respect to this section of the statute of frauds, declared that in all cases in which any court has validated parol contracts passing an interest in land, the contract itself has been required to be proved to the point of demonstration. Lawrence v. Springer, 49 N. J. Eq. (4 Dick.) 297; Barbour v. Barbour, 51 N. J. Eq. (6 Dick.) 267.

It is proper, therefore, in this suit, in which the complainant’s asserted right is in direct contravention of the statute of frauds, to inquire whether tire complainant presents such a case as under these decisions amounts to a 'demonstration of her equity.

It should be noticed that the complainant, when stating in her bill of complaint, the permission, which she says she obtained from the defendant, to locate her pier and porch in part on the defendant’s property, does not allege that there was any contract- whereby it was agreed that she should erect the pier and column in part on the defendant’s property in order that he (if he should subsequently build a porch) might connect with it and so use it as a post of his own porch.

As the complainant in her pleading narrates the transaction, what she obtained from the defendant was a simple permission to use his land in the manner indicated, without airy agreement that any corresponding benefit should come to the defendant because thereof.

The complainant was herself called as a witness on the trial of the cause. Nothing in her testimony shows anything in the nature of any contract, either in writing or by parol, whereby it was agreed that she should erect the pier and column (now in dispute) on part of the defendant’s property, and that he in consideration thereof might have the use of the column when he improved his own property.

The defendant gives a very different account of the matter. He testifies that the pier was located on his land without any permission whatever; that he afterwards assented to this upon an agreement that the column to be erected on the pier located on this property should be of certain dimensions, and that he should have the benefit of the use. of it when he improved his own property. He insists that the complainant broke this contract by constructing on tire pier a column which was so much less in diameter than that which had been agreed upon that it was and is useless to him in the improvement which he is about to make on his own premises. ■

The ^testimony of the defendant is that Mr. Welsh, the complainant’s builder, with the complainant’s approval, located the pier for a distance of six and one-half or more inches on the defendant’s land, without any permission from the defendant and without his knowledge; that when the defendant first saw it there the pier was actually erected about half way up. The testimony of Mr. Welsh, though he was called as a witness for the complainant, goes to corroborate this statement of the defendant that the intrusion upon his property preceded his permission to locate the pier there, and that his assent was after-wards given upon the condition which he claims.

This aspect of the transaction is directly contradictory of the complainant’s cláim, negatives her assertion of permission before entry on the defendant’s property, and introduces tire element of an agreement for a consideration which should proceed to the defendant for the use of his land. It is much more probable that such a transaction would hare resulted in such an agreement than that the defendant would, without any benefit reserved to himself, have agreed to permit the complainant to exclusively occupy his land, which he shortly expected to use for the improvement of his own front.

The other testimony in the case tends rather to confirm than to refute the defendant’s claim.

There is some attempt to deny that the defendant imposed as a condition of his assent a requirement that the column to be placed on the pier should be of certain dimensions, but I think the weight of the testimony indicates that he did in truth impose such a condition. The complainant’s counsel insists that even if the defendant did not give permission for the location of the pier on his land previously to its erection, yet he after-wards assented to that location, and that his objection to the dimensions of the column placed by the complainant on the pier can be of no avail to the defendant because he “stood by” and saw that column erected without protest.

I am not satisfied by the evidence that the defendant did not protest against the construction of the smaller column. I think it is shown that the complainant agreed through her builder, Mr. Welsh (to whom the permission was given), to construct the column of a certain size, and to permit tire defendant to use it when he should make his own improvement. It was her duty to comply with that agreement.

The defendant cannot, on the evidence in this case, Ire placed in the position of one who “stands by.” This is not a case where the complainant acted in ignorance of the defendant’s title, or in any way directly or indirectly at his invitation. The complainant, by locating the pier on the defendant’s property without obtaining his previous permission, committed a voluntary and intentional trespass upon the defendant’s property. She was^forgiven on certain terms. These she did not perform, and she cannot assert that the failure of the defendant (if he did fail, though I find he did not) to protest against her omission to perform these conditions was a “standing by” which precludes him from enforcing his legal rights.

There is in this case no element of mistake on the part of complainant in locating her pier on the defendant’s land. That was done knowingly and intentionally by the complainant and her employe. Neither is there in this case, as it is presented by the complainant, any element of contract whereby any beneficial consideration should proceed to the defendant for the use of his land. It is the defendant who successfully sets up such a contract and shows the breach of it. The weight and credibility of the testimony inclines me, as above indicated, to accept the defendant’s statement of the transaction involved, rather than the complainant’s.

The complainant invites my attention to the cases of Morton v. Morton, 47 N. J. Eq. (2 Dick.) 163, and Van Horn v. Clark, 56 N. J. Eq. (11 Dick.) 476, insisting that those cases maintain the complainant’s claim that this court will protect a possession taken in another’s lands where a parol permission there to locate an improvement has been given by the owner and the money of the licensee has been expended on the faith of the parol permission.

It will be found, upon examination, that in those cases there was presented that degree of certainty of proof which was declared by the court of errors and appeals, in Lawrence v. Springer, ubi supra, to be necessary to be shown in order to relieve against the operation of the statute of frauds. The court, in both those cases, was of the opinion that the agreement sought'to be enforced was established by the evidence.

In the present case the tendency of the proofs is to refute the complainant’s claim. It is -an instance illustrating the wisdom of the statute in requiring such creations of interest in land to be in writing, and not an exhibition of a situation wherein the enforcement of the terms of the statute will operate as a fraud upon the complainant, for whatever view may be taken of the contradictory evidence touching the parol permission sought to be validated by the bill of complaint, there can, I think, be ho question that the standard of proof required by the court of errors and appeals cases above cited, in order to avoid the prohibition of the statute of frauds, has not been satisfied.

The evidence in support of the complainant’s claim cannot be said to be of a demonstrative character.

The bill of complaint should be dismissed, with costs.


author: Stevenson, V. C.

text:
    Lavina Lozier v. Gabriel Hill and Cornelius B. Harvey, executors of Catherine A. Talmage, deceased, et al.
    [Filed October 31st, 1904.]
    1. A contract to devise land is within the statute of frauds.
    • 2. The statute of frauds is available as a defence to a suit for specific performance of a contract to devise, under an answer denying any promise to make the devise.
    3. The conveyance of land for its full value is not part performance of the parol agreement of the grantee to devise it to the grantor, so as to take it out of the statute of frauds. '
    4. Parol evidence is not admissible to show that an absolute conveyance of land was made on an oral agreement of the grantee to devise it to the grantor.
    5. Complainant, having conveyed land to her brother on his oral agreement to devise it to her, did not assert her claim or make it known until ten years after his death, and after the death of his wife, to whom he devised the land. — Held, that she is estopped by her laches and acquiescence from enforcing the agreement against the devise of her brother’s wife.
    On bill, answer and proofs.
    The bill is filed to specifically enforce a parol contract to devise a parcel of land situate in the village of Closter, Bergen count]’-, New Jersey. The complainant, on February 21st, 1875, conveyed by an ordinary warranty deed the land in question to her brother, John B. Kip, now deceased. The deed recites a consideration of $1,450, but the proofs seem to show that the actual consideration, so far as the same was money, was only $1,000, which was duly paid. The complainant claims that at the time of the conveyance, and as an inducement to her to make it, her brother, Mr. Kip, promised that he would erect a house on the lot and then devise the whole to her upon his decease, and that relying on this promise she made the conveyanee and accepted the $1,000, although at the time she deemed the lot to be worth about $500 more. The complainant also appears to have desired to retain the lot for her own use.
    Mr. E-ip, soon after purchasing the lot, erected a house upon it at a cost of nearly $4,000, which he occupied as a residence. His family consisted of himself and his wife, alone, his only child having died some time before the date of the conveyance to him and of his alleged promise.
    In 1882, Mr. Kip, who had some time before lost his wife, and whose relations with his sister (the complainant) had ceased to be cordial, married a widow, Mrs. Catherine A. Demarest, and continued occupying the said residence with this wife until his death, in 1891. Mr. Kip’s will, which was executed in 1888, after making! a gift to his brother, Isaac, apparently of comparatively little importance, left substantially his entire estate absolutely to his widow, who was also made the sole executrix.
    In 1897 Mr. Kip’s widow and devisee married a clergyman and became Mrs. Talmage. In 1901 Mrs. Talmage died, leaving a will which she had executed in 1891, a few months after Mr. Kip’s death. The evidence indicated that upon Mr. Kip’s death there was dissatisfaction among his nearest relatives, who were his brothers, and the complainant, his sister, with the provisions of his will, and there was even talk of contesting the same on the ground that at the time, of its execution he (Mr. Kip) was of unsound mind. Mrs. Kip declared to these disappointed relatives, however, that she had promised her husband not to leave to her relatives the property which he devised and bequeathed to her, but to “keep it altogether and make it all right in the end.” There was evidence that the Kip relatives, or some of them, at least, postponed their expectations until the death of Mrs. Talmage. No evidence was offered to show that -Mrs. Talmage ever was informed of the promise alleged to have been made by Mr. Kip to the complainant in 1875. The will of Mrs. Talmage gave legacies to four brothers of Mr. Kip, but gave nothing to the complainant or to her children. Mrs. Talmage died January 19th, 1901. The bill of complaint in this cause was filed March 11th, 1901.

      Mr. David D. Ackerman, for the complainant.

      Mr. Robert L. Lawrence and Mr. Cornelius B. Harvey, for the defendants.
   Stevenson, V. C.

Without undertaking to discuss in detail all of the questions raised in this case, I shall endeavor to state the main points, the consideration of which has led me to the conclusion that the complainant’s bill should be dismissed.

1. The proof of a legal contract, as distinguished from a mere declaration of a testamentary intention, is unsatisfactory. Leaving out of view, for the present, the mere form of the contract ancl the absence of any written evidence of it, the fact that a verbal contract was made as alleged in the bill of complaint certainly ought to be established with, reasonable certainty.

The talk between the brother and sister, which is alleged to have constituted a legal contract, apparently contained, also, other very different elements involving a benefaction. Mr. Kip paid at least two-thirds the full value of the lot, according to the complainant’s estimate. The house which he contemplated erecting was to be a home for himself. The house, in fact, cost nearly $4,000. Mr. Kip would hardly have regarded his statements as constituting only a legal contract when he was proposing to acquire merely a life estate in the land at a price which the evidence shows beyond all question was a very large price for such life estate, then to increase the value of the property fourfold by the addition of buildings, and, lastly, give the whole at his death to his sister, the complainant.

The witnesses to the conversation, or series of conversations, alleged to have resulted in the oral contract, give their testi,mony from memory twenty-seven years after such conversations occurred.

The only witnesses to the contract are the complainant and her two daughters. One of these daughters was thirteen years of age and the other fourteen and a half years of age when they heard the conversations which they now narrate. Their recollection seems to have been refreshed after Mr. Kip’s death, in 1891, which was sixteen years after the conversations occurred, by talking over with their mother “the wrong that had been done” to her by her brother, Mr. Kip, when he failed to make a devise to her in his will in accordance with his alleged promise.

When the conveyance was made to Mr. Kip, in 1875, he was in extremely feeble health, and the expectation of all parties concerned seemed to be that he would only live a short time. This fact makes it probable that Mr. Kip would entertain and express testamentary intentions in regard, to his sister, the complainant.

That Mr. Kip in good faith contemplated devising to his sister the land in question, and so stated, may be fully conceded without finding that he ever made or intended to make a contract which bound him to do that thing, and consequently stripped him of all control over the disposition of the land which he bought and paid for, and the dwelling-house which he erected thereon.

In my. opinion the testimony fairly shows that Mr. Kip paid a full price' — all that the land was worth in 1875 — but also indicates that the complainant, Mrs. Lozier, desired to keep' the lot, not so much for the purpose of obtaining more mopey for it, as for actual use as a site for a new residence which she expected to build. The situation was one where the whole contract between the'brother and sister might have been embraced in the sale of the lot for the sum of $1,000, while both parties ma]’- have recognized that the sister was doing the brother a favor in gratifying his wish to have this particular piece of ground for a home for the few remaining years that he expected to live. Mr. Kip might well have recognized the kindness of his sister in selling the lot even for full value, and might have expressed an. intention to recognize the favor which he had received by a vastly greater favor which he proposed to confer by his will. There is a great deal about this testimony, and particularly the statements of the complainant herself, which suggests that her real grievance was not that her brother broke a binding contract which, be bad made with her, but that she had not received any portion of his estate, either under his will or under the will of his widow, who survived him.

The conversation which related to the purchase of the lot for $1,000 bears every appearance of being a business transaction; the conversation in which it is alleged Mr. Kip agreed to devise the lot back to■ his sister, with a dwelling-house erected upon it, lacks many of the marks of a strict business transaction. While the parties contemplated that Mr. Kip would not live very long, tire time of performance was wholly indefinite. Mr. Kip was obliged to build a house upon the lot which would go to his sister at his death, but what the character or value of the house was to be was in no way defined. It is evident that Mr. Kip might have carried out the alleged contract to the very letter in various ways, involving a difference in the value of the pecuniary result to his sister extending over a range of many thousands of dollars.

This is a case where the parties who were talking were very liable to mingle talk about business with talk about courtesies and favors. After many years it may be difficult for witnesses suffering from disappointed expectations to make accurate distinctions between these two very different kinds of talk. There were some significant indications in the testimony of the complainant and her witnesses that the alleged contract was quite distinct from the conveyance, and was not a mere matter of negotiation and agreement. The complainant herself, on cross-examination, testified in regard to her assent to the final proposition as follows:

“We talked it over some time. Brother Isaac [a brother who was present during the conversation] persuaded me to let him have it, as he was ill and needed a home, and we ought to humor him and let him have it: so I did so.”

The husband of the complainant, who attended to the business of drawing the deed, testified, on his direct examination on behalf of the complainant, to a conversation with Mr. Kip, in the course of the business, as follows:

“He [Mr. Kip] said he had offered my wife a thousand dollars, and he also said that he had told her that he would make it to her in his will when he died. He gave as an explanation that his health was poor and that there would be enough for his widow, if he left one, and that she had no idea of living in Closter anj'how after he was gone; that she would probably go back to her father, and as he was well to dO' there would probably be enough to take care of her, and therefore he wanted to do something for Larina, and he told her he would leave the place to her when he died.”

Two witnesses for the complainant testified that Mr. Kip stated to them that he had bought the lot and paid $1,000 for it.

This testimony of witnesses for the complainant seems hardly to support the theory that the'proposed devise of the lot was a matter of definite contract obligation.

It may also be observed that within about four years after the alleged contract was made and the lot was conveyed to Mr. Kip the brother and sister became somewhat estranged, and their relations were not cordial during the period of about twelve years that ensued until the time of Mr. Kip’s death. If, as the complainant represents in her bill, the bargain was not reduced to writing because of her confidential relations with her brother, it would have been natural, when those friendly relations were disturbed, for her to inquire as to her rights under the alleged verbal contract, and to ask her brother, as an honest man, to put in writing for her protection the bargain which he had made.'

2. The alleged contract of Mr. Kip to devise the land in question to the complainant is within the statute of frauds. Browne Fraud. § 263; Johnson v. Hubbell, 10 N. J. Eq. (2 Stock.) 332; Gould v. Mansfield, 103 Mass. 408; Harder v. Harder, 2 Sandf. Ch. 17.

The answer does not set up the statute of frauds as a defence, but it denies that Mr. Kip ever made any) promise to devise the land to the complainant. Upon such an answer the defendant has the full benefit of the statute of frauds as a defence. Van Duyne v. Vreeland, 12 N. J. Eq. (1 Beas.) 142; Walker v. Hills Executors, 21 N. J. Eq. (6 C. E. Gr.) 191, 202, 203; S. C., 22 N. J. Eq. (7 C. E. Gr.) 513, 519 (Court of Errors and Appeals); McKee v. Griggs, 51 N. J. Eq. (6 Dick.) 178, 184; Wakeman v. Dod, 27 N. J. Eq. (12 C. E. Gr.) 564, 565; Busick v. Van Ness, N. J. Eq. (17 Stew.) 82, 84. Whether a different rule would be applicable if the answer had merely denied the oral promise, without setting up the statute, need not be considered.

No facts are proved which exempt the alleged oral contract from the operation of the statute of frauds.

There was no fraud in the transaction.' No fraud will be effectuated-in case the promise to devise was made and the complainant fails to get the land by devise or by the decree of this court. In such case- the complainant will not be defrauded, but will merely suffer from the non-performance of a promise which is not legally enforceable.

The only suggestion of fraud about the transaction in question is connected with the personal relations between the complainant and Mr. ICip, which it is alleged were relations of trust and confidence, of which he (Mr. Kip) took advantage. I think, however, that the evidence entirely fails to show that the transaction between these two people was in any way affected by any relations of confidence beyond those which generally exist between a brother and sister.

The bill, it is true, alleges that it was “the usual custom and practice” between this brother and sister

“in all their business transactions and dealings with each other * * because of their perfect faith, confidence and trust in one another, neither to give nor take any memorandum thereof, and accordingly * * * no written memorandum of the terms of the said agreement was made.”

The testimony to support this allegation seems to come from the complainant alone and is extremely meager. The complainant testified generally — “We never did anything without his advice ; we were like one family.” The following leading question was then put: “In your business transactions together, did you in any of those transactions reduce them to writing between yourselves?” and thereupon the complainant answered, “No, sir.” The further question was then put: “How were you in the habit of carrying out your little agreements together ?” to which the complainant answered, “We had perfect confidence in one another, and therefore We didn’t need any paper.”

Not the slightest effort was made to prove a single business transaction that ever took place between the brother and sister excepting the one under investigation in this cause. Nor was any evidence presented oí any business affair of the complainant in which she sought or obtained her brother’s advice.

The abuse of relations of trust and confidence often has the effect to alter or even dissolve the most solemn written contracts. Such conduct has been classified among frauds. The party who alleges that such a tort has been committed and thereupon asks to have a written contract set aside is bound to prove his charge, and at the very foundation of the charge lies the fact of the existence of the relations of trust and confidence which are alleged to have been abused. The disclosure which is made in the testimony in this cause of the relations of this brother and sister to each other before this contract was made, at the time it was made aid during the years that followed until the brother’s death, does not, in my judgment, indicate that when they bargained from day to day and finally concluded the conveyance of the lot in question, there were any relations of trust and confidence between them which the brother abused or had the power to abuse. The complainant was of mature age and had a husband who was an active business man to advise her, and who did in fact take part in this negotiation. Mr. Kip had formerly been engaged in business in New York City or Jersey City, and only for a few years had resided in Closter. The friendly association of the brother and sister seems to have covered a period of from four to six- years before the conveyance, and about four years thereafter. Then there was a permanent rupture.

The account given by all the witnesses, including the, complainant, indicates very strongly that the complainant, in making the particular bargain under investigation, was absolutely free from any influence from her brother, and asserted her views, which were' hostile to 'his wishes, with independence and energy. She denied his repeated requests that she sell him the lot for the amount which he offered ($1,000), and it appears from the complainant’s testimony, as well as from that of her daughters, that her brother practically accepted such denial as a finality. Mr. Kip then made his new offer, which included the devise of the lot back to his sister after the house should be erected upon it. The complainant most distinctly testifies that this new offer was the inducement which persuaded her to make the conveyance to Mr. Kip. Assuming that the oral contract was made, the situation presented, in my opinion, is the ordinary one where a party competent to contract has voluntarily, with full knowledge of all the facts, and with the aid of independent advice, made a contract which is not enforceable on account of the provisions of the statute of frauds.. If the mere relation of brother and sister, with the ordinary incidents of friendship which usually accompany that relation, are sufficient in this case to convert an absolute deed practically into a conveyance of a mere life estate, and bind the grantee, who has paid full value, to add several thousand dollars in value to the property before it is to revert to the grantor, then it seems to' me a long step is taken towards removing all contracts between brothers and sisters, or other near relatives, or even intimate friends, from the protection of the statute of frauds.

The only performance of the contract on the part of the complainant consisted in her conveying the land for the sum of $1,000, which she received. She stands in no' better position than if she had paid $500 in cash as the consideration of a promise made by her brother to her to erect a house on a lot belonging to him, and then to devise the house and lot to her at his death.

Payment in whole or in part of the consideration does not exclude the operation of the statute. Browne Fraud. § 461 et seq.; Pom. Spec. Perf. § 106; Brown v. Brown, 33 N. J. Eq. (6 Stew.) 650, 660; Lippincott v. Bridgewater, 55 N. J. Eq. (10 Dick.) 208, 210; Cochrane v. McEntee, 51 Atl. Rep. 279.

The conveyance of the lot to Mr. Kip was not an act which in the slightest degree suggests the alleged parol contract to devise it back to the complainant. On the contrai7, this conveyance is a distinct transaction which seems to be a natural and proper one for the parties to make, and does not call for the alleged parol contract, or.collateral contract, for its explanation. The alleged parol contract in fact contradicts the complete written contract which the parties made.

If the land had been conveyed for no consideration, or for a plainly inadequate consideration, then the alleged parol contract would have explained a transaction which otherwise would appear to have been an extraordinary one, involving an unreasonable and improvident gift.

There is not a single act shown to have been performed by either party to the alleged parol contract which is not referable to the written contract, or which can be attributed to the parol contract -except by calling in parol evidence to contradict the written contract. Of course, I leave out of view the claim that the land was sold for an inadequate price, because I have found that such claim is entirely unsupported by the proofs. The further claim that the land was sold for a less price than complainant would have been willing to accept is of no importance, because the complainant’s state of mind on that subject is evinced by parol evidence only.

Professor Pomeroy, in dealing with the essential character of such acts in part performance of a parol contract as remove it from the operation of the statute of frauds, and the proper mode of proof of such acts, states the law as follows:

“A plaintiff cannot, in the face of the statute, prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or on his behalf which point unmistakably to a contract between himself and the defendant which cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance cannot of themselves indicate all the terms of the agreement sought to be enforced, they must be consistent with it, and in conformity with its provisions when these shall have been shown by the subsequent parol evidence. It follows, from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner thap as having been done in pursuance of such a contract, do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties. It is for this reason, among others, that payment of the pur-chase price, in whole or in part, is not of itself a sufficient performance to obviate the statute, because the'.mere payment of money by one man to another does not, in the ordinary course of human conduct, indicate the existence of a contract between them; the fact of such payment is reasonably explicable in many other ways than as having been done in pursuance of a contract.” Pom. Spec. Perf. § 108.

If the conveyance by the complainant to Mr. Kip was such part performance as takes the alleged verbal promise out of the operation of the statute, I see no reason why any one of ten thousand grantors of land may not get his land back by a lease, a conveyance in fee or a decree by simply proving by parol that he sold his land at a smaller price than he otherwise would have accepted upon the verbal.promise of the grantee to lease, convey or devise it back. That all conveyances of land after the decease of the grantee are subject to such a possible defeasance, is certainly a very startling -suggestion.

The conclusion on this branch of the case is that the statute of frauds is a complete defence to the whole case made out by the complainant, assuming that the parties intended to make, and did make, so far as possible by mere words, the contract set forth in the bill of complaint.

3. Precisely the same result is reached if we exclude the statute of frauds from consideration and apply' the well-settled rules which protect written contracts from impeachment by parol testimony. The effect of giving force to this alleged oral contract would be to alter radically a most solemn contract in writing— a conveyance of land under seal — and to convert wbat on its face is an absolute conveyance of tire whole legal and equitable estate into a conveyance of a 'life estate only, leaving an equitable estate in reversion vested in the grantor.

As has already been pointed out in discussing the relation of the statute of frauds to the ease, no actual or constructive fraud or other sufficient reason has been shown which would justify any court in dealing in such a violent manner with this plain written contract. No exception on behalf of the complainant is established which takes her case out of the operation of the wholesome general rule excluding parol testimony when offered to alter the meaning of a complete, intelligible, written contract.

In connection with this point it is well to consider the appalling results which-might follow if this grantor, who made this conveyance of land in fee, after sleeping on her rights upon a plea of poverty or mistake of law until her grantee and her grantee’s devisee have both died, should be allowed by parol testimony to inject into the written contract a contemporaneous oral agreement, and thereby establish in herself a full reversionary ownership.

4. The laches and acquiescence of tire complainant, in which there is also an element of estoppel, in my opinion, are fatal to her claim to the equitable relief of specific performance.

Assuming that there was an enforceable contract, the contract was broken in 1891, when Mr. Kip died without devising the house and lot to the complainant. The complainant then became the equitable owner of the land, while the legal title passed under Mr. Kip’s wall to his widow, who afterwards remarried and became Mrs. Talmage. The complainant not only made no effort to enforce her rights, but gave Mrs. Talmage no notice of their existence. There is no evidence that Mrs. Talmage ever in any way received the slightest notice of the alleged promise which Mr.- Kip had made in 1875, or the claims of the complainant based thereon. The evidence indicates strongly that the complainant intentionally concealed her claim from Mrs. Talmage and resolved to keep it concealed permanently during Mrs. Talmage’s lifetime, -with the hope or expectation, not that in some mysterious way Mrs. Talmage would discover the complainant’s alleged equitable or moral claim in respect of this particular piece of land, and upon her 'death devise the land to her or to her children, but that she or her children would come in for a share of the voluntary distribution of the Kip estate which Mrs. Talmage declared her purpose to make at her death among the members of the Kip family. The evidence indicates that tire complainant may have justly supposed that the announcement of her claim to Mrs. Talmage would mar this expectation. .

The complainant’s concealment of her claim, in fact, lasted for ten years. Mrs. Talmage died in 1901. Mr. Kip’s brother Isaac, who was present when the conversation took place in 1875, in which the promise is alleged to have been made, died in 1892. Mrs. Talmage, although probably not able to give any important testimony herself in defence of her estate, may havé had information, derived from 'her deceased husband or otherwise, which would aid such defence, but which now is unavailable. The fair presumption in this case is that the delay of the complainant in asserting her claim was continued until by a change of conditions the defence against it may have become more difficult.

But the conduct of the complainant amounts to more than mere laches. She stood by in silence for ten years, knowing that Mrs. Talmage thought that she was the equitable as well as the legal owner of the property in question, and also knowing that it was Mrs. Talmage’s purpose to discharge certain moral or social obligations- of her deceased husband by a disposition of some part at least of what had been his estate by her will. The complainant in effect acquiesced in such disposition of this property as Mrs. Talmage in the exercise of her discretion might see fit to make.

There are quite distinct indications that the complainant perceived that it would not be to her advantage to assert even the strong moral claim which she thought she had to this particular part of the Kip estate if she was to stand as a candidate for a benefaction out of the Kip estate through Mrs. Talmage’s voluntary action. It was possible that Mrs. T’almage might have devised to the complainant some other house and lot. If so, the complainant’s position in this suit would have been exceedingly inequitable. The same result, practically, would have followed if Mrs. Talmage had given the complainant a substantial legacy. In fact, Mrs. Talmage, by her will, distributed portions of the Kip estate among Mr. Kip’s relatives, but gave the complainant nothing. Considering strictly what Mrs. Talmage did, and disregarding what she might have done, it certainly is beyond dispute that she disposed by her will of this particular piece of property in ignorance of the complainant’s claim, while the complainant stood by in silence and allowed her so to dispose of it. It is at this point that the element of estoppel comes in. The silence of the complainant misled Mrs. Talmage. Mrs. Talmage was injured because she disposed of the Kip estate by her will under the false supposition, if the complainant’s contention is correct, that this particular piece of land, worth about $4,000 or $5,000, was a part of that estate. The residuary legatee is injured to precisely that extent. What is left for this beneficiary, if anything, does not appear.

If Mrs. Talmage had been notified of even the moral claim of the complainant she might have made any one of a number of appropriate provisions for the removal or satisfaction of such claim. Her benefaction to' the residuary legatee, which is greatly impaired, if not defeated, might have been protected by a different adjustment of her other legacies.

Without undertaking to pass upon the effect of the complainant’s conduct upon any legal rights which she may have, I think that such conduct constitutes a bar to the equitable remedy of specific performance. 2 Pom. Eq. § 817; Pom. Spec. Perf. § 408.

The excuses'which have been offered for the conduct of the complainant in sleeping on her alleged rights and concealing her claim may be briefly disposed of. The excuse of poverty is not proved. The indications from the evidence are that no such excuse in fact existed. It may be observed that within two months after Mrs. Talmage’s death this present suit was commenced. But the most fatal default which the complainant made during Mrs. Talmage’s lifetime did not consist in her failure to commence an expensive suit in equity for the enforcement of her rights, but in her failure to notify Mrs. Talmage of the existence of those rights, or rather of the existence of the promise of Mr. Kip, out of which the whole moral as well as equitable claim of the complainant had arisen.

The poverty of the complainant, if such condition in fact existed, did not prevent her from notifying Mrs. Talmage of her strong moral claim. Poverty would only add force to her appeal.

The excuse that the complainant supposed during Mrs. Talmage’s lifetime that her case could not be prosecuted successfully in any court owing to the lack of written evidence, which supposition we now assume to have been unwarranted, is manifestly inadequate. Whatever views the complainant entertained on this subject, and it does not appear that she ever made the slightest effort to obtain the opinion of counsel in regard to it, such views did not prevent her from giving notice of her claim.

The last excuse which need be noticed is that Mrs. Lozier waited in the expectation that Mrs. Talmage would by her will devise the house and lot in discharge of Mr. Kip’s obligation.

Without discussing at length the legal sufficiency of such an excuse, it is sufficient to point out that Mrs. Lozier had no reason to suppose that Mrs. Talmage knew of the obligation above mentioned, and therefore had no right to expect that she would undertake by her will to acknowledge and discharge it. The theory that the declaration made by Mrs. Talmage immediately upon the reading of Mr. Kip’s will included the satisfaction of any such claim as that of the complainant is entirely untenable. Mrs. Talmage’s statement was, in effect, that she had promised Mr. Kip not to leave to her relatives the property which he had devised and bequeathed to her, but “to keep it all together and make it all right in the end.” The things which Mrs. Talmage declared her purpose to “make all right” related plainly to the natural expectations of Mr. Kip’s immediate relatives, which had ipet with disappointment in his will. Mrs. Talmage, in fact, as we have seen, undertook to make many of these things right by the legacies to Mr. Kip’s brothers contained in her will.- The wrong to Mrs. Lozier was done in 1891, when Mr. Kip died. That wrong was not merely a disappointment of an expectation arising from the fact that Mrs. Lozier regarded herself as one of the natural objects of her brother’s bounty, but a violation of a property right which, in the complainant’s mind, whatever view she may have entertained as to her ability to obtain redress by legal proceedings, must have been sharply distinguished from a mere disappointment in respect of a legacy. The declaration of testamentary intention made by Mrs. Talmage could only be made to apply to the complainant’s claim by showing that Mrs. Talmage had.notice of that claim. The mere declaration itself does not suggest that Mrs. Talmage had notice of this claim, so as to make any notice of it from the complainant unnecessary.

When Mrs. Talmage (at that time Mrs. Kip) took possession of the house and lot as her absolute property under her husband’s will, the complainant was nearly ñfty years old, while she (Mrs. Talmage) was sixteen years younger, and in good health. When asked what she expected would be the result in case she died before Mrs. Talmage, an event which certainly would be in accordance with existing probabilities, she could only reply that she expected that Mrs. Talmage would leave the house and lot to her (the complainant’s) children. And jet the complainant did not consider it worth while either to notify Mrs. Talmage of Mr. Kip’s promise, or even to ascertain that she already knew of that promise. Mrs. Talmage was married to Mr. Kip in 1882,. a considerable time after the relations between the complainant and Mr. Kip had become in a measure unfriendly. The only possible support for a supposition in the mind of the complainant that Mrs. Talmage had learned of this ancient verbal promise made by Mr. Kip to his sister in 1875, so far as is disclosed by any evidence in this ease, must be found in a mere surmise that Mr. Kip may have voluntarily informed his wife in regard to the matter. The complainant was not warranted in entertaining such a supposition, the correctness of which she could have tested at any time.