author: Backes, V. C.

text:
    American Builders Corporation v. Thomas E. Galligan et al.
    [Decided June 1st, 1921.]
    An item leaving the testator’s residuary estate to his brothers and sisters for their lives as joint tenants, and after the decease of the last survivor of his brothers and sisters and mother giving “what remains to such persons as would by law inherit the same,” held to give the remainder not to the testator’s heirs at the time of his death, but-to those who would have been his heirs-at-law had he died at the time 'of the death of the last surviving life tenant.
    On Unal hearing on. agreed state of facts.

      Messrs. Edwin B. .& Philip Goodell, for the complainant.

      Mr. Walter G. Brandley, for the defendants.
   Backes, V. C.

This bill is to compel the defendants to pay for a building lot in accordance with their contract of purchase, they having refused. They set up' that the title is not marketable. The lot is a subdivision of a farm in the borough of West Caldwell, Essex county, of which Owen M. Beach died seized in 1888, and which he devised by an item in his will that reads as follows:

“Item-, I give and devise unto my brothers E. W. Beach, Cyrus C. Beach, Joseph E. Beach and my loving sisters Jennie E. Beach and Ella E. Beach all my remaining real and personal estate wheresoever and whatever the same may be during their natural lives as joint tenants not tenants in common with the privilege of dividing the farm at any time they all can agree into separate plots, but as each one decease that share to lapse and become a part of the estate and divide among the survivors (and each one receive a proper burial) and after the decease of the last survivor of my brothers and sister & mother I give what remains to such persons as would by law inherit the same to them and their heirs and assigns forever to be divided in a peaceable manner and all those heirs who resort to law for division be excluded and have no part or share in nw estate.”

The brothers and sisters, and the children of a deceased brother, survived the testator, and, being advised that they were “such persons as would bj^ law inherit the same” and therefore the devisees in remainder, they (except Joseph E.) conveyed to Joseph E. Beach, who conveyed to- the complainant.

The point is, Whom did the testator mean by “to such persons as would by law inherit the same;” his heirs-at-law at his death or those- living at the death of the last life tenant? There is litde difficulty, it seems to me, in seeing his hopes and aims. I have no doubt he intended that his mother and brothers and sisters were to enjoy the farm, j’ointly, for life, and when the last of them had passed away it was to go to his then heirs-at-law; that is to say, those who would have been his heirs-at-law had he died at the time of the death of the last surviving tenant. That is the natural deduction. He could not have reasonably meant that those for whom he had expressly provided for life were to be the remaindermen as well. If he had meant that he would have given them the estate outright in the first instance.

A devise over after an estate for life “to such persons as would by law inherit.” imports heirs living at the death of the life tenant. In Briden v. Hewlett, 2 Myl. & K. 90, the gift was to trustees to pay the interest to the testator’s mother for life, until power in her to appoint by will, and in case she died without appointing, “tiren to such person or persons as would be entitled to tire same bjr virtue of the statute of distributions.” The master of the rolls, Sir John Leach, was of the opinion that the word “would” imported that the testator intended his next of kin at his mother’s- death and not at his own death. In Butler v. Bushnell, 3 Myl. & K. 232, the gift was to the testator’s daughter for life and after her death to her children, and in case she died without children, then over to those who should happen to be the testator’s next of kin. In construing the will the master of rolls said: “Where a testator gives property to a person for life with remainder to his children, and if he should die without children, then over to his next of kin, it is not a probable- intention that he should mean to include, as one of his next of kin, the person upon whose death without issue he has expressly directed that the property should go over. In looking toi the cases, it appears to me that the court always considers whether the words of limitation are words of present intention, so that they are intended to take effect as soon as the testator’s next .of kin, living at his death, are ascertained; or whether they import a future period, and are referable to the event upon which the gift over is to take effect. The words 'such persons as shall happen to be my next of kin,’ or 'such persons as shall or should be my next of kin,’ indicate an intention to confine the gift to such persons as shall answer the description of testator’s next of kin at the death of the tenant for life.” Vice-Chancellor Shadwell, in Urquhart v. Urquhart, 13 Sim. (at p. 627), observed that "the cases of Briden v. Hewlett and Butler v. Bushnell [also] were, as I think, rightly decided, because the futurity or contingency of character in the persons designated by the general words was sufficiently pointed out by the expression 'would be’-in the one case and 'should happen to be’ in the other.”

In Tuttle v. Woolworth, 62 N. J. Eq. 582, relied upon by the complainant to carry its case, the ’gift was to the testator’s daughter Hattie for life, and if she died without issue surviving it was to revert to his estate and be distributed among his heirs-at-law — next of kin. The testator left a son and two daughters, one of them being Hattie. Hattie died without issue. She was counted as an heir-at-law within the meaning of the will, and her representatives participated pro tanto in the distribution of the gift, because, as Vice-Chancellor Emery explains, the words "heirs-at-law” or “next of kin” are technical legal words and imply a reference to the time of the testator’s death, and that their legal and fixed meaning controls unless the will indicates that some other time is meant. That decision is obviously inapplicable to the present circumstances, as here, the testator, although a lawyer, did not use words of a purely technical signification.

My conclusion is that the complainant has not a merchantable title and that its bill must be dismissed.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Joseph Rosenberg v. Rebecca Silverman et al.
    [Decided June 1st, 1921.]
    Where a grandmother was a tenant in common with her minor grandchildren of real property, and the grandmother, and1 the grandfather, as guardian of the grandchildren, contracted to sell the property, but the court of chancery refused to permit the sale of the grandchildren’s interest, the contract would not be specifically enforced as to the grandmother’s interest, in view of a provision in the contract for sale that “should the court of chancery refuse to permit the sale of the infants’ interest * * * then the party of the first part are to return the deposit.”
    On bill, &C.

      Messrs. Kessler & Kessler, for the complainant.

      Mr. Philip J. Sclwtlandj for the defendants.
   Backes, Y. C.

This bill is for the specific performance of a contract. Mrs. Silverman and her daughter Mrs. Abelson were owners, as tenants in common, of the house and lot involved in this suit. Mrs. Abelson died leaving three minor children. On November 20th, 1918, Mrs. Silverman and Philip, her husband, and Philip Silver-man, as guardian of the three children, entered into an agreement, in uniting, with the complainant to- sell to him the property for $5,900. The guardian had no- power, in virtue of his office, to bind' his wards, and for authority he applied to and obtained from this court permission to sell to the complainant, or any other person, their moiety for not less than $5,500. (The stating of the price was clearly an inadvertence.) On the hearing the bill was dismissed because the guardian’s power was limited by the chancellor’s grant, and subject to his confirmation, which, under the circumstances, would not be given,'but I intimated that, perhaps, one might be maintained against Mrs. Silverman for her half interest, and upon motion the complainant was granted leave to amend the bill, calling upon her to perform! Upon further consideration, I am of the opinion that the amended bill cannot be maintained. The agreement of Mrs. Silverman, and Philip, the guardian, was that they would convey the property as a whole, not each their portion, and, as the agreement states, "should court of chancery refuse to permit sale of the infants’ interest in the property, or should the title be not perfected before February 1st, 1919, then party of the first part are to return the deposit to party of the second part, together with search fees.”

Mrs; Silverman was not to convey unless her grandchildren were also to convey. The contracts of Mrs. Silverman and the guardian were not independent, but interdependent, and the understanding clearly was that if tire contingency above quoted came to pass, the contract was to be absolutely at an end. And the reason for this provision is quite natural in the circumstances. The grandparents were as solicitous of the interest of their grandchildren in the property as they were of their own, if not more so, and the better way of protecting the infants’ share was to retain the property as a whole or to sell it as a whole. To require Mrs. Silverman to sell her share would deprive the infants of this safeguard and subject their undivided half to the accidental price of a partition sale. To foreclose that possibility they inserted in the contract the provision above quoted.

The terms of the payment also bear out the view that the property as a whole was to be conveyed, and upon failure of title the contract was to be at an end. The doctrine of Keator v. Brown, 57 N. J. Eq. 600, cited by the complainant, is inapplicable.

The amended bill will be dismissed.


author: Bacices, V. C.

text:
    Florence Jemima Bravo, petitioner, v. Manuel Albert Bravo, defendant.
    [Decided July 21st, 1921.]
    1. Condonation of adultery is always conditional that the pardoned party shall in the future treat the other with conjugal kindness, and shall not only refrain from a repetition of the offence forgiven, but shall also refrain from committing any other offence which falls within the cognizance of a matrimonial court.
    2. A wife’s condonation of her husband’s adultery did not preclude her from obtaining a divorce on the ground of adultery when her condonation was followed by extreme cruelty, desertion and association with other women justifying the wife in revoking the condonation.
    On. exceptions to master’s report.

      Messrs:. Fleming & I-Iwndford, for the exceptions.
   Bacices, V. C.

The petition charges adultery. The master to whom it was referred found the charge to he true, but also: found that the offence had been condoned, and, therefore, advised against a divorce, to which exceptions were taken.

The testimony satisfactorily establishes both findings, but the master disregarded the fact that the forgiveness had been forfeited by the husband’s later conduct. The offence took place in 1914, while the parties were living in Brooklyn, and it occurred in their home. They continued to live together in New York, and then for five years, until August 24th last, in Bayonne, when the defendant deserted the petitioner. It is abundantly established by the proofs that after the petitioner forgave the defendant. and during their cohabitation thereafter, he treated her harshly, sometimes brutally, and rarely gave her adequate support; he continued to consort with other women — strangers to his wife — and habitually boasted to her and others of his conquests; and it is a fair inference that he again lapsed into sin, perhaps, many times. He deserted her upon a number of occasions, and for protracted periods, finally in August last.

Condonation is always conditional, the condition being that the pardoned party shall in the future treat the other with conjugal kindness. And by this is meant that he. shall not only refrain from a repetition of the offence forgiven, but shall also refrain from committing any other offence which falls within the cognizance of a matrimonial court. Warner v. Warner, 31 N. J. Eq. 225; Leech v. Leech, 82 N. J. Eq. 472. The condition of the pardon was broken by the defendant’s extreme cruelty, his desertions, and his concupiscence, coupled with his promiscuous association with women, and the wife was justified in, revoking the condonation. She is entitled to a divorce.

The exceptions to the master’s report will be sustained.


text:
    Joseph S. Shoyer et al. v. Max Mermelstein.
    [Decided July 21st, 1921.]
    1. Covenants restricting the purchasers of lots in a given area to the erection of one-family' houses constitute a neighborhood or community scheme, the regulations -of which a lot owner must observe! if he had notice thereof at the time he purchased his lot, or if he was put on his guard and reasonable inquiry would have led to such knowledge.
    2. Where all the houses in a given area were one-family houses, a purchaser of a lot in such area, under a deed restricting him to the erection of a two-family house which should have the appearance of a one-family house, was charged with notice of a community .scheme included in the deeds to others in the community, hut not in the deed to him. and may be enjoined from- erecting a two-family house, although he had inquired of

      Ms grantor and consulted the city authorities as to- whether he might build such a house, and although houses in the plot north of such restricted area and adjoining the north line -of his lot were all two-family houses, tinder such circumstances, it is the duty of the purchaser of the lot to inform himself by inquiry in the immediate vicinity, as he had knowledge from his own deed, that there were structural restrictions on the land.
    On final hearing.

      Messrs. Qonglelon, Stallman & Hoover, for the complainants.

      Messrs. Stein, Stein.& Ilannoch, for the defendant.
   Backes, Y. C.

The bill is to restrain the defendant from building a two-family house on his lot in a community devoted to residences for one f amity only, in violation of covenants in the deeds from the common grantor to the owners of homes and other lots in the community. The land is in the Clinton Hill section of Newark, and was plotted and laid out in streets and building lots by Joseph P. Sanford and Margaret J. Sanford, his wife, owners by the entirety, and is the northerly section of the plot of building lots described in Sanford v. Keer, 80 N. J. Eq. 240. After the death of her husband Mrs. Sanford rearranged and replotted the lots in the area north of Madison avenue and sold the same upon the representation that the lots lying between Madison avenue and a line three hundred and. fifty feet north of the avenue would be restricted to one-family houses, and incorporated in all her deeds (except in the deed to tire -defendant for his lot, and one to another person who has^ however, built a one-family house) a restriction

“that the said party of the second part [grantee], his'heirs and assigns, shall and will not at any time hereafter prior to the first day of July, 1955, erect, or suffer or permit to bo erected, any dwelling-house upon said premises hereby conveyed to cost less than the sum of $4,500, * * * that said ckoelling-house shall only he used as a private house and for one family only and for no other purpose or use whatsoever.”

There are other restrictions that are not involved in this litigation. There are thirty-eight lots in the restricted district, on which twenty-five one-family houses have been erected. Some of the houses occupy two lots. Eleven lots are still vacant. Some of them have been sold, by Mrs. Sanford, subject to- the one-family-house restriction. The rest of the Sanford plot lying south of Madison avenue, and which was developed earlier, is likewise restricted to. one-family houses. In February of the present year Mrs. Sanford sold and conveyed to the defendant a lot on South Eleventh street, in the restricted area, with a restriction to the effect that! the dwelling to be erected thereon should not be arranged for, contain or be occupied by more than two families, and that the said dwelling is to- be so constructed as to appear from the outside as a one-family house. The defendant commenced the erection of a two-family house, but upon the filing of the bill suspended operations. The bill is filed by seven lot owners who, or whose lessors, built one-family houses on their lots.

The restriction sought to be vindicated, it will be observed, is upon the use and occupation of tire house and not upon the character of the structure, but as tire exterior of a two-family house differs widely in appearance from that of a one-family house— and I understand the defendant desires to erect the ordinary two-family house on his lot, and this in violation of his own covenant — defendant’s counsel has asked me to pass upon the enforceability of the covenant as though it restricted tire structure to a one-family house.

That the restrictive covenants exacted by tire Sanfords from the purchasers of their lots constituted a neighborhood or community scheme was found as a fact by this court and was approved by the court of errors, and appeals in Sanford v. Kern; supra. The situation remains unchanged, aard that question must be regarded as settled. The duty of lot owners to observe the regulations of a neighborhood scheme is also well settled in this state. DeGray v. Monmouth Beach Club House, 50 N. J. Eq. 329; Sanford v. Keer, supra.

The only question to be decided is, Had the defendaart notice of the scheme at the time he purchased his lot ? If he had, he is, in conscience, bound to respect it. Brewer v. Marshall, 19 N. J. Eq. 537. It is agreed by counsel that he had not actual notice of the restrictions, but this does not relieve him. If he was put upon his guard, and reasonable inquiry would have led to knowledge, he is as firmly, bound as if he had read every one of the deeds. Was he forewarned ? It seems to me that the uniformity of the houses — one one-family house to a, lot — (one-family and two-family houses have distinctive external characteristics; a. two-family house extends deeper into the lot than a one-family house, as each apartment occupies a floor) would at once attract the attention of a would-be purchaser and provoke inquiry. That alone was, in my judgment, enough to- put the defendant to inquiry. Bridgewater v. Ocean City Association 88 N. J. Eq. 351; Winslow v. Newcomb, 87 N. J. Eq. 480. He was no stranger to community developments and their ideals. He knew there were structural restrictions on the plot,, for his own deed held him down to a two-family house, which was to- have the appearance on the outside of a one-family house. Why the camouflage? This, to my mind, brought home to him directly the exclusive 'character of the place, and inculpates him in Mrs. Sanford’s unworthy effort to violate and repudiate her obligation to her prior grantees. The defendant says he inquired of Mrs. Sanford— the most likely person to deceive him — and he consulted city authorities, who told him they had no objection to two-family houses, and there he stopped. Had he done what a reasonable man would have done in the circumstances — asked for information at any of the houses in the locality of his lot — he would have known the truth — the truth, as I think, he all the while knew.

The defendant points to the fact that the houses on the plot north of the line three hundred and fifty feet northerly and parallel with Madison avenue are all two-family houses, and that as his lot adjoins the line on the south, he was lulled into a feeling of security that he could build a two-family house, as Mrs. Sanford had represented to him he could. The defendant’s proposed two-family house would be the first invasion of the restricted area. The northerly boundary of the tract above the line is irregular.' It runs from zero on some streets to five building lots on others. The line which marks the boundary between the one and two-family houses runs across the tract at the zero point. On all sides of the Sanford [tract above the line there are all sorts of tenements. These facts, to which the defendant calls particular attention as having disconcerted, him, or reassured him of Mrs. Sanford’s representations, as you like, only strengthen my conviction that when he -bought he knew, or should have known, there was a proscription of two-family houses. He obsei’ved the distinctive character of the houses below the line and their difference from those above. If he did not, in fact, know the reason for the glaring and arbitrary line of demarkation, it was his duty to have informed himself, and this he could have accomplished with little exertion by inquiry in the immediate vicinity.

1 conclude that the defendant was charged with notice of the community scheme, and that he is bound to observe its ordinances. I will advise an injunction- restraining him from erecting a two-family house.

Costs to the complainants.


text:
    Cyrus Currier & Sons, a corporation, v. International Molders’ Union of North America, Local No. 40, et al.
    [Decided July 21st, 1921.]
    1. Where a defendant local union was an unincorporated organization, the unlawful acts of its financial secretary in persuading complainant’s employes to enter the union and thereby break their contract of employment, and in using violence and intimidation in so- doing, are chargeable to the union, and it may be enjoined by this court.
    2. Where the complainant, in the exercise of its legal right, made a condition of employment that its employes should not join a labor union, and upon their joining discharged them, the soliciting of employes by persuasion, and in some cases by force and violence, to- join a labor union with the intent to have them break their contract of employment, will be enjoined.

      3. An employer lias a legal right to hire men unaffiliated with a labor union, and to make continuance of unaffiliation a condition of employment.
    On final hearing.

      Messrs. Pitney, Ha/rdm & Skinner (Mr. Alfred F. Skinner), for the complainant.

      Mr. John A. Matthews•, for the defendants.
   Backes, Y. C.

The bill is to restrain the International Holders’ Union, Local No. 40, its officers and agents> from picketing the complainant’s foundry and interfering with its employes, and from soliciting them to join the union in violation of their agreement of service. The complainant employs in the neighborhood of one hundred men, of whom twenty-five, or thereabouts, are ooremakers and molders. In March, 1917, the union called a strike of core-makers and molders employed in the various foundries in Newark, including the plant of the complainant, which was carried on by the usual method of picketing and oppression until halted by the injunction of this court. Thereafter,- the complainant adopted a policy of excluding all union men from its service, and-made it a -condition of hire that its employes should not belong to or join labor unions while in its employ, and this policy it has followed ever since. In 1920 the union, Local No. 40, resumed picketing the complainant’s plant, not in numbers as large as three years before, nor with the same degree of violent coercion and intimidation, nor for all the purposes for which the strike had been called. The object of the present picketing is to persuade the complainant’s coremakers and molders to join the union in breach of the conditions of their employment, the ultimate object, obviously, being to unionize the complainant’s shop, as part of the broader scheme of unionizing all foundries in Newark. The pickets stationed themselves daily near the complainant’s plant and intercepted its employes, soliciting them to membership in their local, accompanying their solicitations with threats of violence, and sometimes with actual violence against the reluctant and unwilling, and with such marked success that the coremakers and molders were reduced to five, thereby greatly hampering the complainant in carrying on its works. The defendants knew the condition of employment and that the complainant was conducting an “employer’s closed shop,” the antithesis of a “union closed shop,” i. e., one where unions, having the upper hand, tolerate no labor except that by union hands. The efforts of the defendants were not confined to soliciting members for their union, which, when accomplished, they knew would result in the members’ discharge from complainant’s employ', but their further effort was to foist upon the complainant these newly-made members, enjoining them to secrecy, with the aim to eventually unionize the complainant’s shop.

The activities of the defendant union in and about the c-<.impla inant’s works were carried on by one Stevenson, its financial secretary, with whom was associated members of other locals of the Molders’ Union. As to’ Stevenson’s guilt of intimidation, violence and seduction of the oomplainant’s employes, I have no doubt, notwithstanding his denial. He professes to have acted as an individual unionist: and not as a representative of his local; but this is idle evasion. The defendant local is an unincorporated organization of men — a copartnership — bound together for the attainment of worthy objects, mutually beneficial, sometimes, unfortunately, sought to be obtained by unworthy means, and in the prosecution of their common object, the action of any one member is binding upon all; and so the conduct of Stevenson in behalf of the organization, and his methods, though obnoxious in the eyes of the law, are chargeable to the defendant local, and, indeed, as I read tbe answer of the defendants, the local, while specifically denying the representative capacity of Stevenson, does not shirk or seek to evade responsibility for his activities in its behalf. The joint answer of the union and its officers specifically denies the charges of intimidation and violence, but, collectively, they admit, with argumentative modification, the charges of picketing and the solicitation of the complainant’s employes to membership in the organization and implicitly adopt all of Stevenson’s efforts, charged and proved, lawful and unlawful, as their community efforts. Stevenson embodied the union.

The case as made manifestly calls for the intervention of the court, to the extent, at least, of the mandate in Jonas Glass Co. v. Glass Bottle Blowers’ Association, 72 N. J. Eq. 653; affirmed, 77 N. J. Eq. 219.

The complainant asks more: That the defendants be restrained from soliciting the complainant’s employes to join the union with intent to have them breach their contract of service. Joining the union meant, the loss of the servant. I am of the opinion that it is also entitled to this relief. It is the complainant’s legal right to hire men unaffiliated with labor unions, and to make continuance of unaffiliation a condition of the employment. That is as assured, to the employer as is the right of the unions to make it a condition of membership that their members shall not work in shops where non-union men are employed. And it is the master’s legal right to have his servants abide with him, free from interference -of the union, as it is the right of the union to prosper unmolested by the employer. The right of each to lawfully prosecute his affairs is equally within the protection of the law, and if in their competition for labor harm falls to one from the lawful promotion of the other’s business, the injury is an inevitable incident, legitimately inflicted and excusable. , So- long as each keeps advancing his interest without purposely intending to harm the other, there is no room for complaint or cause for action, but; when either converges the line of advance in assault upon the other, then the law, through its courts, calls a halt by injunction In -other words, in their progress they must not step- on the other’s toes with intent to injure. Labor has not as yet appealed to the courts, but if the present “employer’s closed shop’’ movement has for its ultimate object the overthrow and destruction- of organized labor — an ulterior and unlawful object — and, by means as unworthy as those here reprehended, capital is certainly extending the invitation. The emplo3rer’s complaint has been heard and vindicated by o-ur highest tribunal. An issue in- most respects like the one here presented was before the supreme court of the United States in Hitchman Coal and Coke Co. v. Mitchell, 245 U. S. 229. The opinion of the court, delivered by Mr. Justice Pitnejf, is as instractive as it is compelling, and I quote from it liberally. The learned, justice says (at p. 251) :

“This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment as the workingman is free to- join the union, and that this is a part of the constitutional rights of personal liberty' and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power. Adair v. United States, 208 U. S. 161, 174, Coppage v. Kansas, 236 U. S. 1, 14. In the present case, needless to say, there is no act of legislation to which defendants may resort for justification.

“Plaintiff, having in the exercise of its undoubted rights established a working agreement between it and its employes, with the free assent of the latter, is entitled to be protected in the enjoyment of the resulting status, as in any other legal right. That the employment was -at will/ and terminable by either party at any time, is of no consequence. In Truax v. Raich, 239 U. S. 33, 38, this court ruled upon the precise question as follows: Tt is said that the bill does not show an employment for a term, and that under an employment at will the complainant! could be discharged at any time, for any reason or for no reason, tire motive of tire employer being immaterial. The conclusion, however, that is sought to be drawn is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employe has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion, and, by the weight of authority, the unjustified interference of third persons is actionable, although the employment is at will/ (Citing many cases.)

“Defendants set up, by way of justification or excuse, the right of workingmen to form unions, and to enlarge their membership b3r inviting other workingmen- to join.. The right is freely conceded, provided the objects of the union be proper and legitimate, which we assume to be true, in a general sense, with respect to the union here in question. Gompers v. Bucks Stove and Range Co., 221 U. S. 418, 439. The cardinal error of defendants' position lies in- the assumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas, in truth, like other rights that exist in civilized societjq it must always be exercised with reasonable regard for the conflicting rights of others. Brennan v. United Hatters, 73 N. J. Law 729, 749. The familiar maxim, Sic uiere tuo ut alienum non Icedas; literally translated! ‘So use your own property as not to injure that of another person/ but by more proper interpretation, ‘so as not to injure the rights of another’ (Broom Leg. Max. (8th ed.) 289), applies to conflicting rights of every description. For example, where two or more persons are entitled to use the same road or passage, each one in using it is under a duty to exercise care not to> interfere with its use by the others, or to damage them while they are using it. And a most familiar application is the action for enticing an employe, in which it never was a justification that defendant wished to retain for himself the services of the employe. 1 Black. Com. 429; 3 Id. 142.

“Now, assuming defendants were exercising, through Hughes, the right to invite men to join their union, still they had plain notice that plaintiff’s mine was run ‘non-union/ that none of the men had a right to remain at work there after joining the union, and that the observance of this agreement was of great importance and value both to plaintiff and to its men who had voluntarily made the agreement and desired to continue working under iff Yet defendants, far from exercising any care to refrain from unnecessarily injuring plaintiff, deliberately and advisedly selected that method of enlarging their membership which would inflict the greatest injury upon plaintiff and its loyal employes. Every Hitcbman miner who joined Hughes’ ‘secret order/ and permitted his name to be entered upon Hughes’ list, was guilty ■of a breach of his contract of employment and acted a lie whenever thereafter he entered plaintiff’s mine to work. Hughes not only connived at this, but must be deemed to have caused and procured it, for it was the main feature of defendants’ plan, the sine qua non of their programme. Evidently, it was deemed to be necessary, in order to ‘organize the panhandle by a strike movement/ that at the Hitchman, for example, man after man should be persuaded to join the union, and having done so to remain at work keeping the employer in ignorance of tlieir number and identity, until so many had joined'that by stopping work in a body they could coerce the employer and the remaining miners to ‘organize the mine’ — that is, to make an agreement that none but members of the union should be employed; that terms of employment should be determined by negotiation not with the employes but with union officers — perhaps, residents of other states and employes of competing ¡mines'* — and that all questions in controversy between the mine operator, and tire miners should likewise be settled with outsiders.”

• Substituting Stevenson for Hughes, the opinion reads as if written for this case.

I will advise a decree.


author: Backus, V. C.

text:
    Dymtro Semenowich et al. v. Mauk Melnyk et al.
    [Decided July 21st, 1921.]
    Where the grantee of land made a declaration of trust, setting out that he held title only as security for a loan advanced to the grantor, .and later in a suit by the grantor’s creditor to declare the deed fraudulent, asked for nothing more than the money advanced by him on the land, he is bound by a decree for this amount, and, there being no fraud, cannot later claim surplus money produced by a sale of the land over the grantor’s debts, on the theory that the grantor made the conveyance in fraud of his creditors, and that equity will not heip him regain it.
    On bill, &C.

      Messrs. Biker & Biker (Mr. Theodore McG. Marsh), for the' petition.
    - Messrs. Levy & Fenster and Mr. William Greenfield, for the respondent.
   Backus, V. C.

The bill in this case was filed by-judgment creditors of the defendant Melnyk to set aside a conveyance of land made by him to the defendant Novak, alleging that it was made to cheat and defraud them. Novak answered denying fraud, setting up that the deed was in the nature of a mortgage and cross-billed, praying that it be declared a mortgage. On the hearing it was held that the deed was given as security, and valid as a mortgage, but void as to the complainants’ judgments. A decree was accordingly entered upholding the deed to the extent of Novak’s advances, but, subject to his lien, iti was set aside as against the complainants’ judgments, and the property was ordered to- be sold to satisfy Novak’s lien, and the complainants’ judgments and a ft. fa. is now in the hands of the sheriff. Novak has petitioned the court to determine who- will be entitled to the possible surplus. He wants to know how to- bid. I do> not pause to consider whether he is entitled to the court’s judgment m limine under the act of 1915 (P. L. 184 ¶ 7), or upon the authority of Point Breeze Ferry Co. v. Bragaw, 47 N. J. Eq. 298, or State Mutual Building and Loan Association v. O’Callahan, 65 N. J. Eq. 738, cited by him. I think he is not, but, as the matter is pressing and no objection is raised, I will pass upon the question.

Novak claims to be entitled to the surplus, and he rests his claim on the ground that the deed to him was executed by Melnyk with intent to cheat and defraud creditors; that, although voidable as to creditors, it was good inter pandes, and that equity will not aid the wrong-doer. Geroso v. DeMaio, 75 N. J. Eq. 410. The claim is based- upon the recitals in. the final decree, rather than upon tire facts disclosed at the hearing which led to that instrument. The decree does recite that “the deed of said Myak Melnyk and Olena Melnyk, his. wife-, to said Michael Novak was made, and executed by them with intent to cheat and defraud-the complainants, but was taken by the defendant Michael Novak to secure to him the sum of $3,400 then advanced by him.” This is an inadvertence. Actual intent to cheat and defraud was not shown at the trial, as I recall the testimony, and, surely, the cause was not presented nor decided upon that theory. At the time Melnjrk made the deed to Novak he was in financial troubles, and appealed to him for assistance, which was promised and given. With the making of the deed, Novak executed a declaration of trust in which the negotiation between the two is set out in detail, and the declaration was later recorded in the office of the register of deeds of Essex county. In his pleading, and at the trial, Novak asserted his rights under the deed as declared in his contemporaneous declaration, and asked for nothing more than the lien vouched to him by these documents. The final decree fixes the extent of his lien and interest in the property at $5,250. He is bound by that sum. As the debts of the complainants were in existence at the time the deed to Novak was made, it was set aside as to them as 'a voluntary conveyance. Had it been held that the transaction was corrupt, a moral fraud, as Novak now asserts it was, and) to which he must needs have been privy, the deed would have been set aside in favor of the complainants, not only as to Melnyk but also as to Novak. Horton v. Bamford, 79 N. J. Eq. 356. Novak’s priority as a lien holder was sustained because of the absence of fraud in fact, although as to Melnyk the deed was fraudulent in law as against his existing creditors. Comp. Stat. p. 2617 11. Melnyk’s claim to the surplus arises out of the declaration of trust,' and not out of any supposed resulting trust tainted with fraud. The rule that a eonve3ranee made with intent to defraud creditors is good as between the parties cannot be applied in the circumstances. The test here is, Could Melnyk recover his title on an original bill against Novak under the terms of the declaration of trust, and the defence set up by Novak, as he has here set up' — that he took and held the property as security? I have no doubt he could. Novak’s estate in the property is limited b3r his money decree. He can have no more, nor can he, in conscience, ask more. Whatever remains, after he and the complainant creditors are satisfied, reverts to Melnyk.

If Novak still relies upon the recital in the final decree as res adjudicada, the recital will be corrected on application.


text:
    Joseph W. North & Son, Inc., v. Herbert S. North et al.
    [Decided June 1st, 1921.].
    1. A corporation, on purchasing a business, agreed to fill the orders of the seller’s customers and to save him harmless from liability to them. On it's failure to fill the orders, the seller recovered judgment requiring the .payment of an amount of money to indemnify him from liability therefor. Subsequently, a customer recovered a judgment against the purchaser on an unfilled order, and the purchaser sued to require the appropriation of enough from the amount recovered by the seller to satisfy such- customer’s judgment, — Held, that such judgment was prima facie evidence against the- seller of the purchaser’s liability, and if the seller had notice of the suit anil an opportunity to defend, it was conclusive against him. ■ •
    2. A corporation which, on purchasing a business, agreed to fill the seller's orders and to hold him harmless from liability to his customers, and on failing to fill such orders, paid to the seller the amount of a judgment recovered by him as indemnity, may call on the seller to appropriate from the amount thereof sufficient money to satisfy 'a judgment thereafter recovered by a customer against it, and need not wait until it has suffered harm by paying the-debt,-the position of the parties being analogous to that of principal and surety.
    3. In such case, the purchaser, on recovery of a judgment against him by 'a customer, may call on the seller to appropriate sufficient money from the indemnity judgment to satisfy thei customer’s judgment, although the purchaser’s original liability was unliquidated, the effect of the judgment being to liquidate the liability.
    4. Though the 'judgment in favor of the seller was considerably less than the total amount owed by him, he riiay be compelled to apply the amount of such judgment in discharge of the purchaser’s liability on the judgment recovered against him by a customer, their liability being identical, and the effect of applying the 'amount of his verdict towards the satisfaction of the customer’s judgment against the purchaser being to release both purchaser and seller to that extent, leaving each still liable for the balance. .
    On final hearing.

      Mr. Ale J. David, for the complainant.

      Messrs. Lum, Tamblyn & C'olyer (Mr. Ralph Lum), for the defendant.
   Backes, Y. C.

The complainant has supplemented its bill, as suggested in the conclusions filed May 9th, 1920 (North v. North, 91 N. J. Eq. 390), and now sets up that -on February 24th, 1921, the Plant company recovered a judgment against it for $300 damages, for failure to fill one of the orders mentioned in the “Schedule,” and that payment is demanded; and it prays that sufficient money be appropriated -out of the fund of $20,000 in, the Elizabeth Trust Company to extinguish the liability. (Since the filing of the supplemental bill the fund has been paid over to the defendant— he being financially responsible — and the prayer is regarded as calling upon him to relieve the complainant of the judgment.) The answer admits, sub silentio, the allegation, but denies the right- of the complainant to- relief. The cause came on for hearing on bill and answer. I have already held that the complainant is entitled to recover upon establishing its liability. This has now been done by the judgment. The judgment is prima fade evidence against the' defendant, and if he had notice- of the suit, and an opportunity to- defend (which is n-ot pleaded, but counsel states he had), it is conclusive against him. 32 Cyc. 270. The present position of the parties is' analogous to that of principal and surety. The defendant has now become the principal and the complainant the surety. A surety may call upon his principal to save him harmless; he need not wait until he has suffered harm by paying the debt. Irick v. Black, 17 N. J. Eq. 189; Holcombe v. Fetter, 70 N. J. Eq. 300; Chancellor v. Towell, 80 N. J. Eq. 228.

The defendant’s counsel draws a distinction between the right to equitable relief where the liability is a fixed sum, as in Loosmore v. Radford, 9 M. & W. 657 (cited in Sparkman v. Gove, 44 N. J. Law 252, and in North v. North, 93 N. J. Law 438; affirmed, Id. 476), and where, as in the present ease, the liability is unliquidated. The difference, if any, lies in the character of the proof and not in the applicability of the principle. The distinction vanishes with the coming -of the judgment. The liability is then liquidated. This distinction was adverted to- in nay former conclusions (110 Atl. Rep. 581), where it was said that “to invoke that equity (the one now sought) the complainant must point out: with certainty and definiteness the double liability, as to amount and person, and establish it by satisfactory proof.” The liability reduced to judgment is one form of proof; proof of payment of the exact damage is another.

The defendant also sets up' in his answer and contends that he suffered damage to the amount of $60,000 because of the complainant’s failure to save him harmless from liability, and that, although he was limited by the ad damnum of his complaint, in his suit at law, to a maximum recovery of $20,000, which he recovered (93 N. J. Law 438), his damage of $60,000 was in fact mitigated, in some degree, at least, by the testimony of the complainant that it had novated much of the defendant’s liability ■ and had caused other of it to be canceled. This testimony, he alleges, was untrue, and he avers that he is still liable to his former customers in sums, in the aggregate, greatly in excess of the amount of his judgment, and that, therefore, it would be inequitable to compel him to apply the amount of his judgment, or any part of it, in discharge of the complainant’s liability. I confess I am unable to follow the argument. Whenever and however the defendant discharges the complainant’s liability he discharges his own. Their liability is identical. And, so, whether the defendant be compelled to apply his $20,000 verdict towards the satisfaction of one or the other of his customer-creditors’ claims, it releases both only to that extent, leaving each still liable for the balance. The defendant’s dilemma is that he has not enough money-verdict to go around. This unfortunate situation was brought about by the rule of the law court. The jury was not privileged to award the defendant as much as he now asserts is necessary to relieve him of the liability against which the complainant had promised to protect him, because in his pleadings he had limited the amount of his damage, which was unliquidated, to $20,000. Excelsior Electric Co. v. Sweet, 59 N. J. Law 441. Withdrawal of a juror, by permission of the court, and an amendment to an otherwise formal part of the pleading, and a new trial, or submitting to a nonsuit and a suit de novo, were the only ways open to a verdict equal to the damage. Then, had the verdict been the amount of the defendant’s liability to his customers, he would not be in his present .predicament to stretch a $20,000 verdict to pay a $60,000 liability.

This situation may arise hereafter — it is not now before me. A customer-creditor may sue the complainant only, foregoing his right of action against the defendant. If, perchance, the customer should be one whose claim the complainant set up in the action at law as having been settled or taken over by it, the defendant could, probably, raise an estoppel and defeat the complainant’s bill for protection pro tanto.

The complainant is entitled to a cl e'er ee for the amount of tbe Plaut judgment.


author: Griffin, V. C.

text:
    F. R. Patch Manufacturing Company v. William A. Gahagan Company, a corporation, Edward T. Gahagan and Walter J. Gorman.
    [Submitted February 28th, 1921.
    Decided March 2d, 1921.]
    1. The acknowledgment of a lien on property sold under execution by the purchaser and the officer conducting the sale, made it unnecessary for the person holding the lien to bid at the sale to protect his interest.
    2. A purchaser at an executor’s sale and others, acknowledging the lien of a third person at the sale, were estopped from claiming that the title derived from the sale was not subject to the lien, an instrument in the nature of a chattel mortgage, because it was not recorded as required by statute.
    On bill, &c.

      Mr. Leon Abbett, for the complainant.

      Mr. Robert Carey, for the defendants.
   Griffin, V. C.

The bill in this cause was filed, among other things, to foreclose an instrument in the nature of a chattel mortgage or conditional bill of sale, dated January 23d, 1917, whereby the complainant furnished and delivered to the Gahagan company one earberundum coping machine, to be paid for as follows:

‘$650.00 cash, against B/L, balance to be in the form of 13 notes for $100 each, for 1, 2, 3, 4, 5, 6, 7, S, 9, 10, 11, 12 and- 13 months, respectively, notes to be dated 30 days after date of shipment and bearing interest at G%.”

Tn said instrument is the following clause:

■‘It is further agreed that the machinery and all property herein specified shall be and remain our property as security for deferred payments and subject to our control until fully paid for in cash.”

While the instrument has some earmarks of a conditional sale, the attributes of a mortgage are more prominent.

This instrument was not recorded.

A decree pro confesso has been entered against the Gahagan company.

The Gahagan company was indebted to Edward in upwards of $900, part of which was contained in a note of the company for $400, dated July 19th, 1917. Edward entered judgment upon this note in the (first) district court of Jersey City against the company for $465 damages and costs.

Execution issued on said judgment, and the constable levied on the machine in question, and other property, and sold'the same to Edward on his bid of $200.

Shortly thereafter Edward sold to the defendant Gorman for $940, being substantially the amount due to him from the Gahagan company.

The defendants Edward and Gorman now claim that the title which Edward derived from the sale is not subject to the instrument sought to be foreclosed because it was not recorded as required by the statute.

It appeal's that at the time the machine was delivered Edward was vice-president of the Gahagan company and signed the thirteen notes given under the agreement:; he assisted the constable in making the levy, furnished the list of goods upon which to levjr, and, in fact, gave to- the constable all the information upon which he acted.

The levy as to the machine plainly stated that it was made subject to the mortgage of the complainant. The notice of sale likewise informed prospective bidders that this machine would be sold subject to said mortgage.

At the sale the constable announced that the machine would be sold subject to the mortgage of the Patch Manufacturing Company (this fact is alleged in the bill, paragraph 9, and is not denied in the answers), and the evidence shows that both Edward and Gorman were at the sale..

The constable delivered a bill of sale to Edward with a schedule of the property sold thereto annexed, in which appears the following: “Carberundum machine with wheels [subject to mortgage of Patch Manufacturing Co.] ;” and in the bill of sale from Edward to Gorman the same language is used with reference to this machine.

The defendants, in support: of^their claim, assert that judicial sales stand on a different footing from the ordinary ones between man and man; in this, that while in such ordinary sales the vendor may validate a void or voidable lien so that his grantee may not impugn it, this principle does not apply to sales by officers under judicial process; citing Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548 (553, 554) To this latter principle there are exceptions. Warwick v. Dawes, 26 N. J. Eq. 548 (555, 556), to prevent fraud and inequity.

Here Edward furnished all the information to the constable upon which he levied and conducted the sale; he heard the announcement that the sale would be made subject to complainant’s mortgage without protest, with the result that persons who otherwise might have bid may have refrained from doing so because of the prior lien of upwards of $1,000. The acknowledgment of the complainant’s lien made it unnecessary for it to-bid to protect its interest. He accepted a bill of sale in strict compliance with the terms of bidding. If he should now prevail he would obtain the property for about- $1,000 less than it might otherwise have sold for; with, the result that the complainant’s lien will be lost and the Gahagan company continue liable on its notes aggregating $1,000 and interest. To countenance such a contention would be giving aid' in support of fraud, a thing that can hardly be expiected from a court of equity.

The conclusion I have reached is that the defendants Edward and Gorman are estopped from setting up this defence. The decree should be for the complainant. Warwick v. Dawes, supra; Hackensack Water Co. v. DeKay, supra (at p. 556); Lee v. Stiger, 30 N. J. Eq. 610; Camden Safe Deposit Co. v. Citizens Ice Co., 71 N. J. Eq. 221 (223); Peoples Building and Loan Association v. Vaniewsky, 85 N. J. Eq. 651 (556).

The Galiagan company made the down payment of $650, and' paid three notes thereafter. If counsel cannot agree on the amount due, it will be referred to a master.


author: Griffin, Y. C.

text:
    Bertha Tehsman v. Reinhold Tehsman.
    [Submitted December 14th, 1920.
    Decided March 10th, 1920.]
    1. In a suit by a wife against her husband from whom she had obtained a.divorce in New York for extreme cruelty — Held, that as to accrued installments of alimony the New York decree was entitled to • full faith and credit, but not as to future installments, since the New York courts have power to annul, alter or modify installments not yet accrued, but have no such power as to past-due installments.
    2. Since the New York decree established all the facts which, if presented in the New Jersey court, would result in holding the defendant guilty of constructive desertion, the complainant would be allowed, under the twenty-sixth section of the Divorce act, a sum for separate maintenance from the defendant who had contributed nothing to her support.
    On bill, &C.

      Mr. G. Earl Brugler, for the complainant.

      Mr. J. Emil Walsclieid, for the defendant.
   Griffin, Y. C.

The above cause seems in every respect quite like the case of Freund v. Freund, 71 N. J. Eq. 524; affirmed, 72 N. J. Eq. 943. The parties were married in New York on February 17th, 1914. The wife obtained a divorce from bed and board in the supreme court of New York, in the county of Kings, on June 19th, 1916, on the ground of extreme cruelty, such as would justify a decree for constructive desertion in New Jersey; and, consequently, if she left him under such circumstances, the husband would be guilty of an abandonment, and if he failed to support her, she would be entitled to separate maintenance under the twentjr-sixth section of our act. This decree is offered in evidence, and is conclusive proof of the issues litigated, and which, if proven here, would justify a divorce for constructive desertion. Freund v. Freund, supra.

In the Freund Case the bill was filed to recover past-due alimony, as well as 'to have a sum allowed for maintenance under the twenty-sixth section. Vice-Chancellor Emery, on the authority of Lynde v. Lynde, 181 U. S. 183, held that the decree for alimony in New York was subject to modification and alteration, and was, therefore, not a final decree to which full faith and credit should be given under the federal constitution; but entertained the bill, under the twenty-sixth section of the Divorce act, for future maintenance, and made the allowance accordingly.

In Sistare v. Sistare, 218 U. S. 1; 30 S. C. Rep. 682, the whole matter was reviewed and the law settled. The case dealt with an attempt to enforce a decree of the supreme court of New York for past-due alimony in the supreme court of errors of Connecticut. The case did not deal with questions as to alimony not accrued. The Connecticut court held, in effect, that the decree of the New York court was not final and not entitled to full faith and credit under the federal constitution. The pith of the decision of the Sistare Case, reversing the Connecticut court, is that, under the statutes of'New York then existing, a decree of alimony was a final decree, and, as each installment matured, it automatically became a debt of record to which full faith and credit should be given in a suit thereon in a sister state, because, as to such accrued installments, there was no power in the courts of New York to annul, alter or modify. (See, also, Bolton v. Bolton, 86 N. J. Lew 69; Idem. 662.) But it appears by the laws of New York that, as to installments not yet accrued, there is this power to annul, alter or modify, and, therefore, before it becomes due, it is not a filnal decree; thus the Freund Case stands as the law as to future maintenance. The evidence is quite clear that the decree of the court of New York establishes all the facts which, if presented to the court here, would result in holding the defendant guilty of constructive desertion; and he is therefore guilty of abandonment under the twenty-sixth section. It is also clear that he has contributed nothing to her support, and, therefore, the abandonment, and the failure to support concurring, the complainant is entitled to a decree, and I will so advise.


text:
    Commonwealth Trust Company v. Charles Grobel, administrator of the estate of Robert Grobel, Sr., deceased, and Sophie Grobel.
    [Submitted February 28th, 1921.
    Decided March 2d, 1921.]
    Where a husband and wife made a deposit in a bank, signing a memorandum that they were to hold “as joint tenants, and not as tenants in common,” and there was an entry in the bank book that they were to “hold as joint tenants and not as tenants in common, the survivor to take,” a contract was created between the two depositors and the bank which gave the survivor the right to1 take.

      On bill, &c.

      Mr. John W. Ochford, for diaries Grobel, administrator.

      Mr. Louis G. Hansen, for Sophie Grobel.
   Griffin, Y. C.

This is a bill of interpleader. The only question to be determined is whether a bank account in the Commonwealth Trust Company, standing in the name of husband and wife, passed to the wife upon the death of her husband. The deceased and his wife worked together. He was a business man, and his wife, in addition to her household duties, assisted him more or less in his business, and it seems that the moneys deposited in this account were derived wholly from this business. The account was opened on September 13th, 1918, by the deposit: of $500. The trust company handed to Mrs. Grobel the deposit book, No. 11146. In this book, under the names of the parties, there was imprinted, with a. rubber stamp, in plain view, the words “as joint tenant's and not as tenants in common, the survivor to take.” At the time of the original deposit the parties also signed and. delivered to the trust company a memorandum in the following words: “This account is opened by us and intended to create a joint: estate to us as joint tenants and not as tenants in common.”

Grobel, Sr., died intestate. Letters were granted to Sophie Grobel, his wife, and Charles Grobel, a son by a former marriage. At the time of intestate’s death there was on deposit the sum of $2;112, with interest. The intestate’s estate, and the widow of the intestate, both set up claims to the fund.

The conclusion I have reached is, that when the parties signed the memorandum stating that they were to hold “as joint tenants and not as tenants in common,” as well as the entry in the bank book that they were “to hold as joint tenants and not as tenants in common, the survivor to take,” a contract was created between the two depositors and the bank which gave the survivor the right to take.

This case is clearly controlled by the New Jersey Title Guarantee and Trust Co. v. Archibald, 90 N. J. Eq. 384; affirmed, 91 N. J. Eq. 82.

I will advise a decree that the fund, on the death of Mr. Grobel, passed to his wife, Sophie, as survivor.


author: Geieein, Y. C.

text:
    Delaware, Lackawanna and Western Railroad Company v. Samuel Smyth and Adams Express Company.
    [Submitted July 27th, 1921.
    Decided July 27th, 1921.]
    1. A contract in which an express company employe assumed the risk of accident caused by or resulting from negligence of the express company, or persons operating a railroad, vessel or vehicle, is rendered invalid by P. L. 1913 p. 302 as against the public policy of the state.
    2. An express company" is not a carrier within the provisions of the Federal Employers’ Liability act (V. S. Oomp. Stat. §§ 8657, 8665), section 8661 governing the liability of common carriers to their employes and forbidding contracts releasing liability for injury.
    On issue in cause transferred.

      Mr. Frederick B. Scott and Mr. G. W. Smyth (of the New York bar), for the complainant.

      Mr. Alexander Simpson and Mr. Thomas F. Tumulty, for the defendant Smyth.

      Mr. William K. Flanagan, for the defendant Adams Express Company.
   Geieein, Y. C.

Samuel Smyth, a defendant in this suit (who will hereinafter be referred to as the defendant), commenced his suit in the supreme court of this state against the complainant to recover damages for personal injuries alleged to have been sustained on the 23d dajr of August, 1917, by reason of the negligence of the complainant in operating its cars. He was an- employe of the Adams Express Company, and at the time of the accident was engaged as a stacker in a. car of complainant, and was lawfully there.

The complainant, by its amended answer in the suit at law set up that Smyth was a. servant of the Adams Express Company, and -upon entering its employ signed an agreement to execute a release of claims of the character set out in the declaration, and prayed that the case he transferred to equity, to the end that the defendant might he decreed to specifically perform his contract to deliver the release; and the cause was so transferred.

After the record at law was filed in this court, the Adams Express Company was brought in as a party defendant, an issue was framed by filing pleadings according to the practice in equity, ánd proofs were taken.

The facts appearing are that1 the defendant, on the 6th day of June, 1917, signed aar application for employment with the Adams Express Company, and signed an agreement captioned “Accident Belease.” At the time this agreement was signed there existed an agreement between the complainaait- and the express company, called an “Express Transportation Contract,” in which the express company bound itself to indemnify complainant.

It is unnecessary to recite these agreements in full, because thej1, are substantially the same as those referred to in the opinion of Mr. Justice Swayze, in the supreme court, in the case of Dodd v. Central Railroad of New Jersey, 80 N. J. Law 56, excepting this — that, in the “accident release” in the present case, the defendant assumed the risk of accidents and injuries resulting by or from the gross or other negligence of any corporation or person engaged in any manner in operating any railroad, vessel or vehicle, &e.; and in the event of the defendant recovering from any of the carriers with whom the express company had contracted, for injury, &c., due to the ganes negligence of the carrier, &c., by means whereof the express company under its agreement should he compelled to pay such negligent carrier, the defendant bound himself and his legal representatives to repay such sum, with interest, &c., to, the express company.

In Dodd v. Central Railroad of New Jersey, supra (at p. 59), Mr. Justice Swayze, speaking for the supreme court, said, referring to the question of public policy: “This question is to be solved in view of the existing state of the law’ without regard to the changes which perhaps now are generally considered desirable changes introduced by statutes in other jurisdictions. We have no statute forbidding a. contract by which the employe agrees to exempt his employer from liability;” and, finding that the contract was not, in law, against public policy, reversed the judgment of the district court, which was in favor of the plaintiff. This case was unanimously affirmed by the court of errors and appeals (82 N. J. Law 524, November 20th, 1911).

Since the'above decision, on April 1st. 1913 (P. L. 1913 ch. 174 p. 302; first Supp. Comp. Stat. 1915 p. 1651), and prior to the date of the agreement in question, a statute was passed providing, in paragraph 23 of section 3, as amended (at. p. 312), as follows:

“No agreement, composition or release of damages made before the happening of any accident, except the agreement defined in section 2 of this act, shall be valid or shall bar a claim for damages for the injury resulting therefrom, and any such agreement, other than that defined in section 2 herein, is declared to be against the public policy of this state. The receipt of benefits from any association, society or fund to which the employe shall have been a contributor sha.ll not bar the recovery of damages by action at law or the recovery of compensation under section 2 hereof.”

The foregoing paragraph is- general in its terms, and renders invalid all such agreements or releases as that contained under the caption “Accident Belease.”

It is unlike the federal statute entitled “An act relating to the liability of common carriers to- their employes in certain cases” (U. S. Comp. Stat. §§ 8655, 8657); section 8661 (being section 5 of the act), which applies only to contracts between the carrier and its employe; and an express company, not being a carrier within the meaning of the act, the statute is inapplicable. Wells Fargo & Co. v. Taylor, decided December 6th, 1920; 254 U. S. 175; 41 Sup. Ct. Rep. 93 (97), citing with approval, Higgins v. Erie Railroad Co., 89 N. J. Law 629; Chicago and Alton Railroad Co. v. Wagner, 289 U. S. 452; 36 Sup. Ct. Rep. 135.

The case, therefore, is a common, law action to recover damages against an alleged tort-feasor, which is not governed by the federal statute — in this, that the defendant was not an employe of the complainant, a carrier, and was an employe of the Adams Express Company, which is not a carrier. Chicago and Alton Railroad Co. v. Wagner, supra.

There is nothing alleged in the pleadings, nor that appears in the case, so far as I am able to perceive, that raises any federal question which makes our laws inapplicable; and, as under such laws said agreement is declared.to be against the public policy of this state, complainant is not entitled to relief herein.

I will advise a decree that the bill be dismissed.

Certain other questions have been raised, such as the effect of accepting benefits under our Workmen’s Compensation act, from the express company. Jacowicz v. Delaware, Lackawanna and Western Railroad Co., 87 N. J. Law 273. Such questions may.be fully presented on the trial at law.

As the transfer to this court was made, and the pleadings moulded into a suit for specific performance in aid of a suit at law, and as the only equitable question presented has been decided against the complainant, an order will be made re-transferring the case to the supreme court, pursuant to the statute.


text:
    Elizabeth Street v. Joseph J. Harris.
    [Submitted May 5th, 1921.
    Decided May 24th. 1921.]
    1. In a contract for the sale of a building “subject to a first mortgage now encumbering the property held by the C. B. & L. Association in the sum of $36,000,” the minds of the parties never met when the mortgage referred to was an installment mortgage, secured by one' hundred and eighty shares of building and loan association .stock, pledged as collateral, upon which installments amounting to $1,800 had been paid, specific performance could not be decreed since the court could, not direct the purchasers to pay $1,800 and take an assignment of such shares.
    2. Where an action was brought for specific performance of a contract to purchase a building on a certain theory and construction of the contract, and the defendant counter-claimed on a different construction and prayed for specific performance, and the court determined that the bill and counter-claim should both be dismissed, an application by the defendant for a decree under the complainant’s theory of the contract should not be granted, the defendant’s conduct being otherwise inequitable.
    On bill and counter-claim, each party seeking specific performance of a contract for the sale of lands.

      Messrs. Collins & Corbin and Mr. Darnel- A. Newton, for the complainant.

      Mr. George G. Tennant, for the defendant.
   Griffin, V. C.

In this case the complainant contracted to sell to the defendant and the defendant agreed to purchase a plot of land known as No. 2957 Boulevard (Jersey City), with the building thereon named “The Elizabethian,” for the sum of $63,250, payment to be made and secured as follows:

On the execution of the agreement................ $2,000.00
Cash on delivery of the deed...................... 8,250.00
“Subject to first mortgage now encumbering the property held by the Colonial Building and Loan Association in the sum of.......................... 36,000.00”
Subject to a second mortgage in the sum of........ 4,400.00
By the execution of a third bond and mortgage covering the property, &c........................... 12,600.00
$63,250.00

The difference between the parties arose on the clause above quoted touching the $36,000 mortgage.

It seems that the mortgage is an installment mortgage, and by its provisions there were one hundred and eighty shares of the building loan pledged as collateral, and upon which the loan was predicated; and the mortgage was subject to discharge by efflux of time when the one hundred and eighty shares attained the value of $200 each, thus equaling the amount due on the bond.

The scheme of the building loan is as follows: When the shares of stock reach the value of $200, non-borrowing members become entitled to receive $200 in cash per share; and borrowing members, whose stock is pledged as collateral for mortgage loans, are entitled to have their mortgages discharged.

At the time fixed for the closing of the title about eighteen hundred dollars had been paid on the stock; and this sum, for the purpose of calculating the interest, as well as all subsequent payments on account of the stock, by the plan, are deductible from the $36,000, and interest is payable on the balance thus ascertained. Otherwise, as I read the bond and mortgage, the debt remains $36,000.

One thing apparently not foreseen by the parties, and upon-which their minds did not turn, was the adjustment to be made of the moneys paid in on account of the shares of stock, as ■well as the assignment thereof to the purchasei1, subject to the collateral pledge.

Bearing in mind that the contract provides that the conveyance shall be subject to the building loan mortgage "now encumbering the property,” and did not provide for the placing of a new mortgage for that amount upon it, and, turning to the condition of this bond and mortgage, which provides that the mortgage shall be paid "by the payment of one dollar per month” per share on this very stock standing in the name -of the complainant and pledged as collateral, it is quite unlikely that Mr. Harris intended to continue paying on stock standing in the name of Mrs. Street, and not in his own, until the mortgage was canceled or the shares matured. And it is also quite unlikely that Mrs. Street contemplated that her $1,800 were to remain invested in this fashion until the shares matured or the mortgage was canceled. Mr. Harris knew of the methods of building loans in the furnishing of what are termed "straight mortgages” and “installment mortgages.” lie has an installment mortgage covering his own home. He would have the court believe that he did not know that this mortgage was an installment mortgage, although the strong trend of the evidence is that he knew all about it. His contract, however, entitled him to have a $36,000 mortgage, without requiring him to purchase these shares pledged as collateral; and, therefore, as to him, to direct that he pay $1,800 and take an assignment of these shares, would he making a new contract-for him. And, as to Mrs. Street, it is quite plain that she did not comprehend the real situation as to tlie status of her stock on the sale; and, therefore, no provision was made in tlie contract with respect to this vital question.

The parties had conferences with the idea of settling, but seem to have been unable to agree. Mrs. Street' was willing to let the $1,800 he added to her third' mortgage; but Mr. Harris seemed to think that a much larger first mortgage would make the property more readily salable; and he declined to accede to‘this proposition.

I do not deem it necessary to go further into this matter, beyond pointing out that the minds of the parties did not meet on this contract, and, therefore, a court of equity should not enforce it. Braentigan v. Edwards 38 N. J. Eq. 542. I will advise a decree that tlie bill be dismissed.

This same reasoning also leads to a dismissal of the counterclaim of the defendant, and I will so advise.

After counsel received tlie memorandum of the court deciding the cause, 'defendant's counsel applied 'for a decree that the premises be conveyed to him on complainant’s version of the contract. ' '

MEMORANDUM ON FOREGOING APPLICATION.

The' application of the defendant 'for leave to take the property after 'tlie court lias decided tiré case, but before decree signed, I think presents a. situation somewhat analogous to the rule in equity that after the court has announced its decision complainant cannot dismiss'his bill,' although no decree had been'entered or signed. McCurdy v. Mather (Conn.), Kirby 273, cited by Vice-Chancellor Pitney in McCarren v. Coogan, 50 N. J. Eq. 263 (272), and, at law, that a plaintiff cannot, against'the will of the defendant, submit to a voluntary nonsuit after the jury has retired. Bauman v. Whiteley, 57 N. J. Law 487; Dobkin v. Ditmers, 76 N. J. Law 235; Wolf v. Fulton Railway Co., 83 N. J. Law 344; Malone v. Erie Railroad Co., 90 N. J. Law 350.

In this case the complainant, before filing the bill, not only offered to perform according to her conception of the contract, but to allow defendant some $600 to cover his expenses in procuring a loan of $36,000, to conform to his version of the contract, and also offered, as a second proposition, to add the $1,800 paid into the building loan to her third mortgage and assign the certificate of stock and pass-book to him. This he refused.

He at filrst agreed to take the $600 proposition, but, later, claiming that he, was also entitled to $500 more for loss of time, complainant declined to accede to his demand, and filed her bill. He answered, and by way of counter-claim insisted that the contract should be performed to the letter according to his version.

The substance of his final demand before suit brought was that, bjr reason of there being a building loan mortgage upon which $1,800 had been paid on the stock assigned, she should either retain the stock, treating the mortgage as $36,000, or, if he took the stock and included its value in her third mortgage, she should allow him $1,100 abatement of the purchase-money, because he desired that a first mortgage should be on the premises for $36,000.

An ordinary fair-minded business man would have accepted complainant’s offer to add the $1,800 to her third mortgage, but this he declined to accede to, and the cotirt, being unable to make a contract for them, announced in a memorandum to counsel that both bill and counter-claim should be dismissed. Now, having gambled on the decision of the court, and lost, he expresses his willingness to accept a deed on the complainant’s version of the contract, and asks that the court so decree.

His whole course of conduct has been inequitable. In his counter-claim he does not offer to' take the property with an abatement of the purchase price; thus he held himself plainly in a position to withdraw if the property deteriorated in value; and, now, that it may have appreciated during the considerable lapse of time since the bill was filed, he, after the court had decided the case, says, “Give me the property on the basis of complainant’s version of the contract.”

Apart from the fact that the court should not now listen to his .plaint for want of equity in his course of conduct prior to the decision of the cause, to hear him now would encourage trifling with the court, which should not be tolerated.

T will, accordingly, advise a decree in accordance with the views expressed in the previous memorandum.


author: Foster., V. C.

text:
    Benjamin A. Porter v. Violet A. Williams et al.
    [Decided July 22d, 1921.]
    A contract of a wife as trustee for a child to convey to a third person land previously held by the husband and wife as tenants by the entirety, and which had been purchased by the wife as such trustee at a sale held to satisfy a judgment against the husband, following the husband’s .abandonment of his wife and child, which contract was executed by the wife as such trustee, pending her divorce suit, contained a provision for the payment of a certain amount as liquidated damages on failure to perform by either of the parties, held an alternative contract, under evidence that the parties so intended in view of the uncertainty as to whether the wife could convey a good title.
    On bill, &c.

      Mr. W. Howard Demand, for the complainant.

      Mr. Abner Kalisch and Mr. Harry Kalisch, for the defendants.
   Foster., V. C.

The original bill in this canse sought the specific performance of a contract dated June 28th, 1919, made between complainant and the defendant Violet A. Williams (who was then the wife of Joseph Butterworth), for the sale of property in Bloomfield, in Essex county. Because of changes in the title, a supplemental bill was filed foy the specific performance of the contract, and also for a partition of the property.

On the hearing the contest was, by consent of the parties, limited to the question of specific performance.

The facts established are, that in January, 1913, title to the premises in question was vested in Joseph Butterworth and his wife, as tenants by the entirety; in October, 1916, Butterworth abandoned his wife and eighteen-months-old child. Butter-worth’s interest in the property was sold to satisfy a judgment, by the sheriff, to Mrs. Butterworth, as trustee, on July 15 th, 1917; and Mrs. Butterworth states she took title thereto as trustee for her child.

Some time in 1919 Mrs. Butterworth began proceedings in this court for a divorce on the ground of desertion; and while this suit was pending, in June, 1919, she, individually, and as trustee, entered into the contract in question (in which Butterworth did not join), by which she agreed to convey the premises to complainant on April 1st, 1920; possession was to be given on July 1st, 1919, and by an addendum to the existing lease for the property between the parties, then made, the rent accruing under this lease was released in consideration of the contract, and the term of the occupancy was extended until November 1st, 1920, under the terms of the contract. Complainant had been in possession under this lease from May, 1919.

The contract contains a provision for the payment of $960 as liquidated damages for failure of either party to perform any or all of its stipulations.

At the execution of the contract $600 was paid on account of the purchase price, and it was agreed that complainant, from August, 1919, to January, 1920, should make payment at the rate of $60 per month, or a total of $360, so that by the latter date Mrs. Butterworth would, and did, receive $960, the amount fixed as liquidated damages. These payments' were made her, and also additional payments of $60 per month, from February to July, 1920, aggregating $360. She claims these additional monthly payments were made to her as rent, and complainant claims they were made on account of the purchase price.

About August 3d, 1920, Mrs. Butterworth obtained her final decree of divorce, and shortly thereafter married her present husband, John Williams. On August 18th, 1920, the contract was recorded. On September 20th, 1920, the original bill in this cause was filed against Mr. and Mrs. Williams. On October 8th, 1920, Mrs. Williams, individually and as trustee, and her present husband, conveyed the premises to the defendants LeBoy Zubler and Augusta H. Zubler, her brother 'and mother, for an actual consideration of $10,500; included therein was $960 to settle the liquidated damages mentioned in the contract with complainant. Thereupon complainant, about October 22d, 1920, obtained from Joseph Butterworth a conveyance of his undivided interest in the property; and basing his claim upon this conveyance, on October 27th, 1920, he filed his supplemental bill, adding the Zublers as parties and asking for specific performance and partition; and on the same date filed notice of lis pendens.

At the hearing and on their briefs counsel have raised and discussed a number of interesting questions, including the effectiveness -of the sheriff’s sale of Butterworth’s interest as a tenant by the entirety; the authority, or rather the absence of authority, in Mrs. Butterworth-Williams, as trustee, to convey to complainant the interest of her infant child in the property; the effect of complainant’s refusal to accept title unless Butterworth joined in the conveyance; the question of notice of the contract to the defendant Zubler; because this action was not commenced within the period of limitation fixed by section 116 of the Conveyance act; because the notice prescribed by that section was not duly filed; and, lastly, the effect of the provision of the contract relating to liquidated damages.

From my consideration of the established and disputed facts, and the impression made upon me by the parties and their witnesses át the hearing, I have concluded to dispose of the controversy without particular consideration of all of the questions thus raised.

Admittedly, Mrs. Birtterworth-Williams bought her husband’s interest in the property at sheriff’s sale, as trustee; she states she constituted herself trustee for her daughter, now about six years old; it does not appear whether she used funds belonging to the infant with which to make this purchase; but it does affirmatively appear that without any authority, and apparently without due consideration for the infant’s interest, or, as is now claimed, for a consideration wholly inadequate, she obligated herself, as trustee, to convey the infant’s interests in this property. If she were such a trustee as she claims, she could not legally do what she attempted by this contract, and complainant was apparently aware of this fact; and under the proofs there is considerable force in the contention now made, that the interests of the infant were not safeguarded therein and would be seriously affected by a decree for specific performance.

This latter contention is particularly pertinent, because it does not appear that the amount of liquidated damages fixed by the contract will not adequately compensate complainant for any loss he has or may suffer if he does not obtain title to the property.

While the later cases in this court have not adopted the view expressed by Chancellor Halsted in the case of St. Mary’s Church v. Stockton, 8 N. J. Eq. 520, that the mere presence of the liquidated damages clause in the contract, made the contract an alternative one, which the parties could at their option' perform, or pay damages for its non-performance; these' eases do hold that the terms of the contract, the subject-matter and the circumstances are to determine if the contract is or is not an alternative one. See Crane v. Peer, 43 N. J. Eq. 553; Brown v. Norcross, 59 N. J. Eq. 427; Avon Land Co. v. Thompson, 60 N. J. Eq. 207; American Ice Co. v. Lynch, 74 N. J. Eq. 298.

From the proofs I think it is' apparent that the parties intended, when the contract ivas executed, that it should be an alternative one, because it was then known to; complainant that Mrs. Butterwoi'th had 'purchased, as “trustee,” her husband’s interest in the property; that two months before, as owner, she had leased the property to him; that because of her pending suit for divorce, the date for passing title was fixed for nearly a year after the date of the contract, in order that she might obtain her final decree; when this was delayed, complainant, in January, 1920, and on later occasions, demanded that she should have her husband join in the.execution of the deed, and when this was refused, offered to obtain her husband’s signature to the deed if she would waive her claim for alimony; and when this, also, was refused, he announced he would not accept title from her alone. Mrs.. Butterwortli accepted his statement as a fact and thereafter treated him as a, tenant, and served notice upon him to quit the premises, and, as a result! of this notice, they have had considerable litigation.

Complainant insists that Mrs. Butterwortli, as trustee, has not a valid title to- her husband’s interest in the property, and claims to be the owner of this interest, and, as such, asks for the partition of the property. His position in his suit for specific performance is wholly inconsistent with his demand for partition; in one part of his case he insists Mrs. Williams has a complete and valid title to the property, which she in violation of her contract refuses to convey to him, and in the other branch of the ca.sc he insists she owns only an undivided interest in the property.-

Since the execution o£ the contract complainant has in no material way changed his position with respect to the property; he has made but few and inconsequential repairs to it, and some slight additions to. the shrubberjq and he has had continued occupancy of the property since July, 1920, without the payment of rent, while defendants have paid the taxes and the interest on the-mortgages thereon.

The amount of $960 settled and agreed on as liquidated damages has special significance - on the question of an alternative contract, in view of the fact that the payments, made by complainant di d not equal, and were not expected to equal, that sum until January, 19'20, the time when complainant refused to accept the deed unless Butterwortli joined in its execution. Under his lease complainant was paying $61 monthly; under his con’tract Ms monthly payment was reduced to $60, and his term which, under the lease, expired on May 1st, 1920, was extended under the contract until November 1st, 1920, although the date for passing title under the contract was April 1st, 1920.

From all the evidence it is reasonable to infer that the provision for liquidated damages was inserted in the contract, because of uncertainty over the outcome of Mrs. Butterwortlfs divorce proceedings, and over the date when she might obtain a final decree of divorce. The odd and unusual amount settled upon as liquidated damages, the fact, which cannot be regarded as a mere coincidence, that the pajunents made by complainant would not, and did not, equal this sum until about the time he refused to accept title from her, justify the conclusion that the liquidated damages clause was made part of the contract, with the view and expectation that if Mrs. Butterworth could not perform the contract by giving complainant the title to the property he expected by April 1st, 1920, the date fixed in the contract, and which, proved to be filve months before she obtained her final decree of divorce, then the parties had the privilege of settling their respective claims for damages and rent under the liquidated damages clause of the contract.

Because of this alternative character of the contract and the undetermined rights of the infant in the property; and, also, because it does not affirmatively appear that complainant was ever ready and willing to perform the contract, or to take title to the property, except upon tire condition, not part of the contract, that Mr. Butterworth should join- in the conveyance, my conclusion is, that on this branch of the case complainant should be left to his remedy at law and a decree will be advised accordingly.