text:
    Carl Schefrin v. Philip Wilensky and William Liss.
    [Decided November 15th, 1920.]
    Where a contract for sale of land was not signed by the wives of the owners of the land, on bill for specific performance the complainant is entitled to a decree with a bond of indemnity against the inchoate dower of the wives, or he may retain sufficient of the purchase-money to indemnify him against the dower right, the amount to be retained to be determined by the mortality tables, where the court is satisfied that the refusal to sign is not the voluntary independent acts of the wives.
    On bill, answer and proofs.

      Messrs. Weinberger & Weinberger, for the complainant.

      Mr. Adrian D. Sullivan and Mr. George G.,Tennant, for the defendants.
   Lewis, Y. C.

The bill in this case' was filed for specific performance of a contract for the sale of real estate. It bears date the 12th of August, 1919, and was not signed by the wives of the defendants. The purchase price was $10,000, and the property covered by the contract is 155 Autumn street, Passaic, New Jersey. At the time of the execution of the contract $200 was deposited and the purchasers were to assume a mortgage for $6,500, covering the premises, and were to pay $3,300 in cash, on the passing of title on September 10th, 1919. The contract further provided that the complainant had the right to enter upon the land and premises on the 1st day of September, 1919, and to take the rents, issues and profits to himself from and after'the 1st of September, 1919.

There was considerable testimony taken as to the entry on the property by the complainant under the terms of the contract and on other points, but it seems needless to review it entirely now, as the real question at issue was whether the defendants had any justifiable ground for refusing to carry out the contract.

After consideration of tire evidence I have reached the conclusion that a decree for specific performance should be allowed.

The testimony satisfies me that the defendants were extensively engaged in real estate operations. They were partners in business and maj^ be called real estate operators. The complainant says that a day or two after the contract was signed, Liss, one of the defendants, called upon him and said that he wanted to sell the property for a higher price. Liss says that the object of his call upon the complainant was to offer to return the deposit because his wife would not join in the conveyance. His statement is not convincing in view of the other evidence offered. My view of the matter is. that he called on the complainant because upon reflection, and consideration he wanted to procure more money for the real estate than was agreed upon in the contract. Wilensky saj^s that when he signed the contract for the property he wanted to sell it, but that the wife of his partner, Liss, would not agree to the sale. This defendant testifies that in the last two years, he has built twenty houses in Passaic City and yet that he was not familiar with prices. The testimony of Max Slaff, who has resided in Passaic City for many years and is an expert on real estate values, is that almost immediately after the sale was consummated, the property could have been sold at a large advance owing to the rising market. This witness is disinterested and has merely stated a fact of common knowledge. At the time of the making of the contract,'and for a considerable period thereafter, there was an unusual activity in real estate, numerous sales and exchanges taking place continually and the selling price of property advanced over night owing to housing conditions. I think this is the reason the defendants failed to complete their contract with the complainant; they wanted more money than the price agreed upon. It is to be noted that neither Mrs. Liss nor Mrs. Wilensky, the wives of the' defendants, testified in this cause. Their absence is -unexplained and their silence is somewhat illuminating. It seems clear that the husband brought about the wife’s refusal to convey.

There is testimonjr to the effect that Wilensky asked Slaff, the real estate expert above referred to, to see if he could not get the complainant to make some sort of a settlement. Slaff asked him what sort of a settlement he wanted, and Wilensky replied: “I suppose that Mr. Liss wants a little more money, and it would not hurt.Mr. Schefrin to give him more money because the house is worth more.”

It appears to be a dear attempt on the part of the defendants to avoid the contract by the flimsy excuse that Liss’ wife did not want to sell and wanted the property for her own use. This statement is negatived by the acts of the husbands in executing the contract for sale. They knew perfectly well the views of their wives regarding this subject at the time. The contract is dear in its terms and reasonable in its provisions. There is no proof whatsoever offered that it was unfairly procured. It was entered into after open negotiations by the respective parties to it. The defendants took the complainant to their attorney and prepared the contract. The conduct of the defendants is unreasonable and unfair, and this court should lend its aid to' the complainant to secure his rights. To do otherwise would be to permit the. defendants to practice a fraud upon the complainant.

It is settled that the complainant would be. entitled to a decree for conveyance without abatement or indemnity where the wife refused to sign a deed without inducement by the husband. Bateman v. Riley, 72 N. J. Eq. 316.

In Farrell v. Bork, 76 N. J. Eq. 615; 79 Atl. Rep. 897, the court of errors and appeals, affirming a decree of this court, advised specific performance by a husband with indemnity where the wife refused to join in a conveyance just to spite the complainant.

A case much in point is that of Stein v. Francis, 91 N. J. Eq. 205. In this case the complainant instituted proceedings to enforce specific performance of a contract. The vendee was the complainant and the wife of the vendor did not sign the contract. No decree was asked against the wife, but a decree compelling the husband to convey the fee, subject to the wife’s inchoate right of dower with either abatement of the purchase price or indemnity against future assertion of a claim of dower of tire wife.

I shall follow the practice adopted by Vice-Chancellor Learning in that case. I, therefore, advise a decree directing the defendants to perform their contract in accordance with its terms and direct a conveyance by them to the complainant. If the wives refuse to join in the conveyance it will be subject to their inchoate right-of dower, and in that event the defendants shall deliver to the complainant a bond of indemnity as security, approved by a special master to be named. If the defendants faiL to provide an indemnity, the complainant may retain in his hands out of the purchase price the amount to be ascertained at the time the decree is signed in accordance with our mortality tables, upon the basis of the right of dower being consummate at that time. • .

This decree is not oppression. The policy of the law is to permit a woman to be her own free agent in the disposition of her dower interest in property (Young v. Paul, 10 N. J. Eq. 401, 418; McCormick v. Stephany, 61 N. J. Eq. 208, 224; Ferrell v. Bork, supra), but when the court is satisfied, as in this case, that the refusal of the wife is not her own act, but is brought about by the connivance of her husband, then a decree with indemnity should be allowed.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Mildred Tompkins, petitioner, v. Howard Tompkins, defendant.
    [Decided August 15th, 1920.]
    1. If a wife be a virgin and apt after three years’ cohabitation, the husband will be presumed to be impotent, and the burden will be upon him to overcome the presumption by proof that he is not at fault, in an action by the wife to annul the marriage, such rule being the essence of the “doctrine of triennial cohabitation.”
    2. In the present cause—SelU, that such presumption is not overcome although physicians testified that the husband appeared to be normal and the husband testified that he simply forbore sexual intercourse because it was painful to the wife.
    3. A three years’ cohabitation is not essential to show a husband’s impotency, where it may be proved before, although a three years’ trial is required to raise the presumption of impotency.
    On bill, &c.

      Messrs. Riker & Riker (Mr. Theodore McO. Marsh), for the petitioner.

      Mr. William, L. Brunyate, for the defendant.
   Backes, Y. C.

This petition is for annulment of marriage on the ground of incurable impotency. The couple, young persons, have cohabited for five 3^ears and the wife is still a virgin. She is physically and mentally normal and capable of copulating. Her virginity and aptness ate established beyond question by three physicians who examined her recently. She testified that her husband never tried to function; that he made no effort at penetration, and that the extent of his performance was to lie upon her, with parts limp between her thighs, and agitate. He vigorously protested his virility1-, but admitted the non-consummation of the marriage, and also that he sought gratification in external attrition, as his wife, described, because, as he says, his efforts at sexual intercourse were painful and distressing to her. He submitted to an examination by one of his wife’s physicians, who testified that he was structurally a male, normal in the parts and to all appearances capable of coition. In build, carriage, voice and deportment, as I observed him in court, he appeared to be up to the standard.

If there is genital impairment it is latent and scientifically undiscoverable; or the lapse may be due to a. psychosis, well recognized by the medical science, and discussed in some of the divorce 'cases in England—a mental condition rendering him physically impotent as to his wife, though potent as to all other women. Were it necessary for the judgment to pronounce the cause of impotencjr, I would not be unwilling to ascribe the impasse between this couple to this peculiar phenomenon. In N-r v. M-e, 2 Rob. Ecc. 625, Dr. Lushington annulled a marriage on the report of inspectors that the husband was impotent as regards his wife, and held, in effect, that the law was not concerned further than this, observing that impotency quoad lime was as prejudicial to the wife as universal impotency.

In approaching.a decision of the issue raised by the pleadings —the impotency of the husband, which is bitterly controverted by sharply conflicting and recriminating testimony—I shall apply the rule of the English courts taken from the civil law as modified by Justinian, called the Doctrine of Triennial Cohabitation. The essence of that doctrine is, that if the wife be a virgin and apt after three years’ cohabitation, the husband will be presumed to be impotent, and the burden will be upon him to overcome the presumption by proof that he is not at fault. It is applied as a hard and. fast rule in England. Lewis v. Hayward, 35 L. J. (N. S.) Prob., M. & D. 105; G— v. M—, 10 App. Cas. 171; C- v. C— 29 L. J. (N. 8.) 81; S— v. A—, 3 Prob. & Div, 72; F— v. P—, 75 L. T. 192; Marshall v. Hamilton, 3 Swab. & T. 517; G— v. G—, L. R. 2 Prob. & Div. 287; F— v. F—, 34 L. J. (N. S.) Prob. & M. 66; Welde v. Welde, 2 Lee Ecc. 580; Countess of Essex Cases, 2 How. St. Tr. 786; Spar row v. Harrison, 3 Curt. Ecc. 16; Anonymous, 2 Rob. Ecc. 625; S— v. E—, 3 Swab. & T. 240; G— v. S—, 1 Spinks’ Ecc. 389; A— v. B—, 1 Spinks’ Ecc. 12.

Mr. Bishop’ devotes a subchapter to the rule. 2 Bish. M., D. & S. 496

' I do not find countenance given to the doctrine in any of the reported cases in this country, but I can conceive no good reason why it should not be introduced into our jurisprudence as a rule of law in the decision of these vexed questions of fact, to which, usually, the parties alone bear witness, each blaming the other. The doctrine is logical and sound in principle and helpful and convenient in the p>roper administration of justice. It appeals to one’s sense of justice, for it would seem but fair that after three years’ probation a husband ought to he made to account for his dereliction, to his disappointed and complaining spouse. The period is none too drort. Whatever may have been the cause in the past for not giving expression to the rule (perhaps, it was due to an early impression- of the bench and bar) that the court of chancery was without inherent jurisdiction to annul a marriage for impotency. notwithstanding the obviousness of the fraud, because its English prototype had not exercised it—a view voiced in Anonymous, 24 N. J. Eq. 19. In later cases there have been annulments for various kinds of fraud, some less serious in their consequences than impotency. Carris v. Carris, 24 N. J. Eq. 516; Crane v. Crane, 62 N. J. Eq. 21; Davis v. Davis, 90 N. J. Eq. 158; Bohner v. Edsall, 90 N. J. Eq. 299; Ysern v. Horter, 91 N. J. Eq. 189. There is no valid reason for not adopting it as a part of our common law, since the legislature has added to the domestic relation jurisdiction of the court of chancery incurable impotency as a cause for annulment. While novel, and an innovation in our practice, there is no reason why the rule should not have a place in our judicial system, there to subserwe the administration of the law as it has for ages under a system which we inherited.

The burden, then, being shifted to the husband to excuse or justify the plight of his wife, the question comes to one of belief in his story of forbearance for five years, ryider most trying circumstances, simply because sexual intercourse was painful and distressing to her I have misgivings. Such solicitude of a groom is noble, of a husband, heroic.. Few have the fortitude to resist the temptations of the honeymoon. But human endurance has its limitations. When nature demands its due youth is prodigal in the payment. Men are still cavemen in the pleasures of the bed. The sex may be more' temperate, but none the less passionate, and heedless of the penalty. They do not shirk the initiation nor shrink from the-consequences. The husband’s plea' does not inspire confidence. Common experience discredits it. And if, in fact, he had the physical power, and refrained from sexual intercourse during the five years he occupied the same bed with his wife, purely out of sympatl^ for her feelings, lie deserves to be doubted for not having asserted his rights, even though she balked.

The presumption of impotency has not been overcome and a decree of nullity will be advised.

Note.—Mr. Biddle says:

“The rule as to a three years’ cohabitation being required before suit brought was retained in England down to recent times in case of frigidity but it has now been laid aside, the court requiring only a sufficient cohabitation to establish the fact.” Bid. N. J. Div. Pr. (2d ed.) 56.

This observation is inaccurate and confusing. The rule is intact in its entirety, and its requirement of a three years’ trial to raise the presumption of impotency has not been dispensed with, and a cohabitation of less duration has not been accepted in lieu “to establish the fact” of impotency. Mr. Biddle would have been moré nearly .correct had he said, that since the change in the law of evidence admitting the testimony of the wife the courts have been able to find impotency as a fact, and that, therefore, the rule was inapplicable in most eases where theretofore it had to be resorted to for want of actual proof. In this sense only has the rule been laid aside; not really laid aside but kept within its legal sphere of operation. A three years’ trial was never essential where the husband’s incapacity could be proved before. This was pointed out by Wilde, J., in F. v. G., 4 Swab. & T. 86 (at p. 94), where he said of the rule: “This rule only applies when the impotence is left to be presumed from continued non-consummation, for, where the impotence is clearly proved aliunde, the court has never resorted to it.” And as was held in G. v. M., supra: “Every case need not be fortified with the presumption; for, although no presumption can be raised from the absence of consummation within a less period than three years, yet positive evidence may be given from which the same inference of inability may be drawn.”

The principle of presumption has not been departed from, and where there is no consummation after three- years’ probation the application of the rule is imperative. This was declared to be the settled law in Lewis v. Hayward (1866), supra. In that case the couple cohabited fourteen years without result. Each was apparently physically capable and laid the deficiency against the other. The divorce court refused a decree because the wife’s proof failed to show that the husband was responsible. The house of lords held the rule of presumption to be in full vigor and reversed. In G. v. M. (1885), supra, a Scotch case, that august tribunal again referred to the rule with approval, but pointed out that three years’ cohabitation was not sine qua non to a decree of annulment nor a bar to the establishment of impotency by competent evidence short of a three years’ cohabitation.

There are but two nullity cases for the husband’s impotency reported in the English' divorce reports from that case to date and they do not involve the rule. In B. v. B. (1901), Prob. 39, the husband refused to occupy the bed with his wife, and declined to submit himself to a physical examination. The court held it was entitled to draw the inference that there was an impediment on the authority of F. v. P., supra. In G. v. G. (1912), Prob. 173, the petition was by the husband for his wife’s frigidity. She denied and cross-petitioned for his impotency. The court was satisfied from the proofs that the marriage had not been and could not be consummated and pronounced judgment on the petition of both, as Bargrave Deane, J., said, “Without putting the slur of impotency on either.” The other cases of nullity reported (W. v. W. (1905), Prob. 231; W. v. W. (1912), Prob. 78, and Napier v. Napier (1915) Prob. 184) were for the wife’s frigidity, and naturally the rule was not involved. The court inferred incapacity as a fact upon proof of the wife’s refusal of access and her refusal to submit to inspection, and, in one instance, upon her admission that she was “no good.” In Dickinson v. Dickinson (1913), Prob. 198, Evans, Pr., declined to infer incapacity in the wife based upon her refusal of intercourse, but he granted a decree based on the refusal. The court of appeal, in Napier v. Napier, supra, disapproved the doctrine on the ground that a refusal to consummate was not a cause within the Divorce act.


text:
    Halsey M. Barrett, surviving executor of and trustee under the last will and testament of Abram Speer, deceased, v. Rachel Ann Egbertson et al.
    [Submitted May 27th, 1920.
    Decided August 15th, 1920.]

      1. The words “next or nearest of -kin” in' a testamentary gift of the remainder to the person or persons living at the death of the life beneficiary, who shall then be “my next or nearest of kin on my father’s side,” mean the class nearest in blood.
    2. Were the words “next or nearest of kin” in a testamentary gift to such kin, used with the meaning of next of kin in the statute of distributions, it would not, where testator’s nearest blood relatives were second cousins, avail cousins further removed, under the statute: P. L. 1918 p. 179.

    On bill, &c.

      Messrs. Barrett & Barrett, for the complainant.

      Mr. William K. Flanagan, for the defendants (first cousins once removed).

      Messrs. Smith, Mob on & Herr-, Mr. James L. Ga/rrabrant, Messrs. Reecl & Reynolds, Mr. Richard F. Colfax, Messrs. Lehlbach & Van Duyne and Mr. Harry N. Reeves, for the defendants (cousins further removed).
   Backes, Y. C.

Abram Speer died September 19th, 1903, testate, leaving his estate in trust for his widow for life, and then provided in his will—

'‘3.—On the death of my said wife, I direct my surviving executor and trustee, to pay over, distribute or convey all the remainder of my estate, to such person or persons then living, as shall at that time, that is, at the time of the death of my said wife, be my next or nearest of kin on my father’s side; and if there shall be mo're than one of such next of kin then living, then the remainder of my estate shall be divided, distributed or conveyed to them in equal shares.”

The widow died August 20th, 1918. At that time the testator’s nearest of kin on his father’s side were children of deceased first cousins-. More remotely connected- were grandchildren and great grandchildren of other deceased first cousins. The first named claim the estate to the exclusion of the kin further removed, and the surviving executor and trustee under the will, being uncertain as to among whom to make the distribution, asks the advice of the court.

The principal question argued was the meaning to be given to the words “next or nearest of kin.” The grandchildren and great grandchildren of deceased’s first cousins contend that “next or nearest of kin” is to be construed as meaning those who take under the statute of distribution and not the class nearest in blood.

The rule they invoke is, that if a testator employs terms of technical significance they will be construed as having been used in a technical sense, if the will is otherwise silent as to the intent. This wholly artificial and arbitrary rule rests upon the notion that the testator knew their technical meaning, and used them accordingly, albeit, he was as ignorant of it as at birth. The rule is invoked for convenience, and of necessity, and only when the subject falls inevitably within the scope of its operation, which is at all times narrow.

The eases cited in the briefs (Welsh v. Crater, 32 N. J. Eq. 177; Fisk v. Fisk, 60 N. J. Eq. 195; Trenton Trust Company v. Donnelly, 65 N. J. Eq. 119; Meeker v. Forbes, 84 N. J. Eq. 271; Albright v. Van Voorhis, 104 Atl. Rep. 27; Leavitt v, Dunn (an insurance policy), 56 N. J. Law 309) are not illustrative of the rule. They hold, as it is uniformly held, that when a testator or settlor limits his personal estate to his heirs-at-law, the persons who take under the statutes of distribution are denominated. In the last-cited case Mr. Justice Dixon pointed out the reason: “In the opinions delivered in these cases, the phrase

‘next of kin’ is frequently used by the judges as their synonym for the word ‘heirs’ in the disposition of personal property, but what they mean by the phrase is not merely the nearest kinsmen, but the distributees under the statute, including both the widow and those who, by the statute, ma3r represent deceased kinsmen. This appears from the language of the learned chancellor in the earliest and the latest of .these decisions, that ‘the next of kin are entitled to claim under such description [heirs] as the persons appointed by law to succeed to the personal property/ thus basing their title not on kinship. but on the statute.”

A gift to “next of kin,” simpliciter, has not received judicial consideration by the courts of this state. In England, after a long struggle, it was finally decided in favor of the civil law acceptation, its against the definition of the statute of distribution, that “next of kin” means the class, nearest in blood. Elmsley v. Young, 2 Myl. & K. 780; Withy v. Mangles, 10 Cl. & F. 215. In this country, Massachusetts, in Swasey v. Jaques, 144 Mass. 135; Fargo v. Miller, 150 Mass. 225; Keniston v. Mayhew, 169 Mass. 166; Leonard v. Haworth, 171 Mass. 496; North Carolina, in Jones v. Oliver, 38 N. C. 369; Simmons v. Gooding, 40 N. C. 382; Harrison v. Ward, 58 N. C. 236; Redmond v. Burrough, 63 N. C. 242; Michigan, in Clark v. Mack, 161 Mich. 545; 126 N. W. Rep. 632; Missouri, in Smith v. Egan, 258 Mo. 569; 167 S. W. Rep. 971; New Hampshire, in Galloway v. Babb, 77 N. H. 259; Maryland, in Graham v. Whitridge, 99 Md. 248, 289, follow the English rule of construction. In New York, in an able opinion by Sutherland, J., in the supreme court (Slosson v. Lynch, 43 Barb. 147), the English doctrine and authorities are vigorously criticised and rejected in favor of the view that “next of kin” has acquired a fixed legal meaning, born of the statute, and when used without more, means “next of kin” as therein defined. The case has been cited with approval by the court of appeals. Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 N. Y. 36; Tillman v. Davis, 95 N. Y. 17; New York Life Insurance Co. v. Hoyt, 161 N. Y. 1.

Were I called upon, in the case at hand, for an opinion upon this sharp point, I would be troubled to accept the New York doctrine, for the primary conception of “next of kin” is the class nearest of blood, and such is the language of the statute, “to the next of ldn in equal degree,” following the rule of the civil law, which it modifies by letting into the distribution a remoter degree, not, however, advancing that degree. And to impute to a testator an intention to import into the class of nearest in blood others who are not, without something in the will indicating that intent, would be to write, not to construe, the will. Duffy v. Hargan, 62 N. J. Eq. 97. A bequest to “my next of kin, according to the laws of New Jersey,” is an illustration of such intention. The North Carolina and Michigan cases argue along this line with impressionable force.

The que=tion, however, is not present for decision. The bequest, it will be observed, is to the next or nearest of kin of the testator on his father’s side. It is more restricted in its operation. than the statute, which includes as. well the next of kin on the mother’s side, and therefore does not carry the idea, that the next of kin in the sense of the statute were intended, the foundation of the rule of construction adopted by the New York courts. To state it in another way, it will not be presumed that the words “next of kin” were used in the technical sense of the statute unless tire context permits full play to the statutory method of distribution.

Then, again, the testator did not express his intention in the language of the statute. He gave the remainder of his estate to his “next or nearest of kin on my father’s side.” He evidently used “next or nearest” in the popular sense and synonymously; “next,” to denote those nearest in place, nearest in degree, rank or relation, and, as if to emphasize his meaning, he added the definitive “nearest,” as used in common parlance. If he had meant next of kin ad infirnkm, in degree, as distinguished from those nearest in degree, why subjoin “nearest?” In construing the will, effect must be given to every word of intendment and in giving “nearest” signification, I cannot find in the expression “next or nearest of kin” any other meaning than the class nearest in blood to the testator at the death of his widow. That he meant the nearest kinsmen finds support in the geneological situation at the time the will was executed. The testator was childless., and he himself was an only child. He had first cousins living, and cousins once, twice and thrice removed, galore. In these circumstances, the direction that “if there shall be more than one of such next of kin then living” (at his wife’s death), the estate should be divided among them in equal shares, takes on significance.

The bequest, it will be noted, is. not to the next or nearest of kin in equal shares; but “if” there should be more than one survivor of them, then they should take in equal shares. A supererogation, it is true, but commonly used by a. draughtsman of wills, as, for instance, in bequests to the children of a testator we usually add “in equal shares” or “share and share alike,” and the like. Now, who is it likely had he in mind as the nearest and next of kin in this contingency ? Surely, he must have realized that a host of descendants, of collaterals would survive his widow, and could he have reasonably apprehended that this ever-increasing group might possibly be reduced to a. single person? Can it be doubted that it was his intention that his cousins, some of whom, or all, in the natural course of events, might die before his. wife, who, if she predeceased them, should all take alike, or the survivors in equal shares, and if one only, that he should take all, and that if they were extinct at that time, the next generation as a class should take ? I entertain but a single thought. In Brandon v. Brandon, on a settlement in remainder to the “nearest and next of kin” of the settlor, the fund was awarded to a brother, excluding children of deceased sisters., the master of the rolls saying “that the words of the settlement are too explicit and definite to require or admit for their construction reference to the statute.”

In Locke v. Locke, 45 N. J. Eq. 97, Vice-Chancellor Bird held a bequest to “nearest relation” to mean brothers to tire exclusion of nephews and nieces. “Nearest of kin” was held in Keniston v. Mayhew, supra, to mean nearest blood relations.

Now, if we look to the statute of distribution for guidance as to the meaning of “next or nearest of kin,” assuming the terms were used syno-mmously and in a technical sense, and that the rule of construction of the courts of New York is sound, we, nevertheless, reach the conclusion that the class nearest in blood, computed according to the civil law, take.

The statute of distribution, in respect of collaterals, lets, in children of deceased brothers and sisters. Beyond that there is no representation. The rule of the civil law that the class nearest of kin by blood takes, is the law of this -state a.t'this time. It was the law prior to 1899, when the statute read, in substance, as in ancient da)^ thus:

“II.—In case there be no children, nor any legal representative of them, then one moiety of the said estate shall be allotted to the widow of the said intestate, and the residue of the said estate shall be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who represent them; provided, that no representation shall be admitted among collaterals after brothers’ and sisters’ children.
III.—And in case there be no widow, then all the said estate to be distributed equally to and among the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid; and in no other manner whatsoever.” ' Rev. of 1898, P. L. p. 715.

In Davis v. Vanderveer’s Administrator, 23 N. J. Eq. 558, the court of appeals, in construing the proviso, denied representation, among collaterals beyond brothers’ and sisters’ children, and held that cousins took, to the exclusion .of cousins once removed.

In 1899 (P. L. 1899 p. 204) the legislature excised the proviso as to collateral representation, and in Fisk v. Fisk, supra, and Smith v. McDonald, 71 N. J. Eq. 261, it was held that under the statute, as amended, the remoter degrees of kindred were admitted into the distribution per stirpes.

In 1918 (P. L. 1918 p. 179) the proviso was restored. The statute now reads:

“III. If there be no husband or widow, as the case ma3r be, then all of the said estate to be distributed equally to and among the children ; and in case there be no child, nor any legal representative of any child, then equally among the parents and brothers and sisters, and the repre? sentatives of deceased brothers and sisters; provided, that no representation shall be admitted among collaterals after deceased brothers’ and sisters’ children.
“IV. If there be no husband or widow, child or any legal representative of any child, nor a parent, brother or sister, nor the representative of a deceased brother or sister, then all of the estate to be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives as aforesaid."

The proviso, it will be observed, was not as awkwardly placed as in .the prior statute, and its. application is more clearly apparent. “As aforesaid,” at the conclusion of section IV., relates to the proviso in section III. Davis v. Vanderveer, supra; Smith v. McDonald, supra.

The act of 1918 was in effect when the life tenant died, and the will directs that the next or nearest of kin or kindred of the testator arc to be ascertained as of that event. Theob. Wills 342, after stating the general doctrine to the effect that words of futurity alone will not alter the ordinary rule that makes the death of the testator the time for the ascertainment of the beneficiaries, says:

“But if the gift is, after the decease of the tenant for life, to such persons as shall then be my next of kin, the word ‘then’ must refer to the death of the tenant for life (Long v. Blackall, 3 Ves. 486; Wharton v. Barker, 4 K. & J. 483; see Clowes v. Hilliard, 4 Ch. Div. 413; In re Morley’s Trusts, 25 W. R. 825; Valentine v. Fitzsimons (1894), 1 I. R. 93); and in such a case the class is to be ascertained as if the testator had lived up to and died at the time referred to. Sturge v. Great Western Railway Co., 19 Ch. Div. 444.”

In Fisk v. Fisk, supra, the testator died in 1872, when the statute provided against representation beyond brothers’ and sisteis’ children. The bequest was “to such persons as would then [at the death of the wife] be my heirs-at-law.” The widow died in 1899, after tine amendment to the statute of that year, 'omitting the proviso. Vice-Chancellor Reecl held that the dis^tribution was to be made among the next of kin according to the statute as it stood at the wife’s death.

The complainant will be advised to pay the estate to the cousins once removed per capita.


author: Backes, V. C.

text:
    Speedograph Corporation v. Frank Maier.
    [Decided August 15th, 1920.]
    1. Tn the absence of fraud, extrinsic evidence that a written contract does not mean what is plainly written as understood at the time, is not admissible either at law or equity.
    2. A corporation which contracted to pay a trustee of one of its organizers a cash sum, in addition to corporate stock for the transfer of property which he held in trust for the organizer, cannot procure restraint of an action at law by the trustee to recover the cash payment because of the trustee’s agreement with the organizer that he would apply it to the payment of stock subscriptions.
    3. A corporation is not liable oñ a promise made by one of its organizers to pay for services rendered in connection with property turned over to the corporation.
    On bill, &e.

      Mr. Milton M. TJnger, for the complainant.

      Messrs. Fleming .& Hanclford, for the defendant.
   Backes, V. C.

This bill is to restrain an action at law. The defendant held in trust for one Smith certain personal property supposedly of great value. At the request of Smith he conveyed it to the complainant corporation for $1,214,000 of its capital stock and $1,000 in cash. The corporation was formed by_Smith and one Walbridge, with an authorized capital -stock of $1,215,000, and commenced business with $1,000 subscribed by dummy organizers. Smith and Walbridge now held all the capital stock issued for property purchased (?) and also those issued to the dummy subscribers. Smith contributed the property plus his experience, and Walbridge, for his share of the stock, financed the company to a considerable sum; and it is now operating ■with more or less success. In- promoting the scheme Smith had the defendant write a formal proposal to the corporation that he would sell the property for the consideration already mentioned, and the corporation, with like formality, accepted. The defendant thereupon transferred the property and directed the company to issue the stock to Smith and Walbridge; nothing was said about the $1,000. The defendant brought suit at law to recover it. He and Smith are now at loggerheads. To a plea that there was no intention that the promise to pay the $1,000 was to be fulfilled and that it was mere make-believe, the law court turned a deaf ear, and struck it out. Then the complainant came here- complaining and setting up the defence the law court would not listen to and charging that the enforcement of the promise would be a fraud upon the company. The case was tried wholly upon the theory that the defendant ivas prosecuting the suit at law' fraudulently to- force the corporation to compensate him for his services to- Smith, and to recoup his loss in a corporation that he and Smith were interested in, and whose property was the property conveyed by the defendant to the complainant. That undoubtedly was his purpose, but I cannot view the suit in that light, whatever the personal motives of the defendant may be. The written proposal by the defendant to the complainant, to- sell the property for the capital stock of the complainant corporation- and $1,000 in cash, and the acceptance thereof, were drawn by the counsel of the complainant, and embody the real understanding of the contracting parties. The counsel, who was a witness, explained that the $1,000 cash item was intended to take care of, that is, to pay, the subscriptions of the dummy organizers, and, as I recall his statement, to clear the treasury of all its stock. That may well be, but in the absence of fraud, extrinsic evidence that a written contract does not mean what is plainly written, as understood at the time, is not admissible either at law or in equity. Naumberg v. Young, 44 N. J. Law 331, 339; Ramsey v. Perth Amboy Shipbuilding, 72 N. J. Eq. 165. As between the defendant and Smith, the defendant undoubtedly could be called upon by Smith to apply the money to the payment of the dummy subscriptions, but that equity does not relieve the company from its obligation. The whole scheme appears to be, and I have no doubt was, a fraud upon the statute (a question that is not now before me), but that there was fraud on the part of the defendant in procuring the promise of the company or that there is fraud in his effort at law to recover, is not shown. The promise of the company to pay the $1,000 has not been kept, and the company cannot escape liability, except by bringing Smith into the reckoning. The defendant stands in the relation of trustee to Smith, and to him he holds the duty of collecting the price. Smith has not released him. Smith is not the company—Walbridge owns half the stock. If they should have a falling out, Smith might call upon the defendant to malee good. Who can tell? Smith is not a party to the suit. The bill will be dismissed.

The defendant filed a counter-claim to make him whole for his services to Smith and for his loss of stock in the corporation, whose property Smith absorbed, and which the defendant, at Smith’s request, turned over to the complainant. Smith’s promise is not the obligation of the company. It has not assumed it; on the contrary, it expressly repudiates it. The counter-claim also will be dismissed.


text:
    James R. Nugent v. Stuart Lindsley et al.
    [Decided August 15th, 1920.]
    1. Equity has no jurisdiction over a bill to remove a cloud from a title where neither party was in actual possession of the land, and each claimed constructive possession by virtue of his paper title. The question to be determined is the ownership of the legal title which is a purely legal question, and must be tried at law.
    2. A bill to quiet title will not be dismissed merely because the controverted question is the ownership of the legal title. The complainant will be given an opportunity to establish his legal title by an action at law. 1
    On bill, &c.

      Mr. James B. Nugent, pro se.

      Mr. Herbert Boggs, for the defendants.
   Backes, V. C.

This motion is to dismiss the bill for want of jurisdiction. It is made as on final hearing iix advance of the trial. The answer challenges the jurisdiction.

The bill is ostensibly, to remove a, cloud—a mortgage—from the title to lands. The land is part of the Great Meadows in Newark. In 1804 the title and possession were in Methuselah and Nehemiah Baldwin. Nugent, the complainant, claims under an apparently perfect chain of title from the heirs of Methuselah and Nehemiah. In'1820 Nehemiah Baldwin mortgaged the whole estate to Nathaniel Camp to secure $175, although, according to' the record, he owned only a half interest. Camp, by deed made in 1822, convej^ed the land to' Samuel Pennington. PenningtoiTs heirs-at-law, in 1918, conveyed to the defendant Lindsley. The bill charges that the mortgage has been satisfied, and seeks cancellation. It further charges that the conveyances from Camp to- Pennington and from Pennington’s heirs to- Lindsley, although in form deeds, were but assignments of the mortgage, and prays that they may be so decreed. The answer avers that after Nehe-miah Baldwin mortgaged to Camp, he conveyed the premises by a deed which is not recorded; that Camp conveyed a fee to Pennington 'which the latter’s heirs conveyed to the defendant Lindsley. It is further set up that Camp and Pennington were- in peaceable possession for more than twenty years, and by reason of the mortgage, Camp and Pennington, and the defendant Lindsley,- acquired and possessed, and the defendant now possesses, an estate in fee-simple.

The complainant, Nugent, and the defendant Lindsley, each claim to be the possessor of the- legal title. Neither is in actual possession. Each claims constructive possession by virtue of his paper title. Plainly, then, the question to- be determined—. the ownership of the legal title-—is purely a legal one- and must be tried at law. Sheppard v. Nixon, 43 N. J. Eq. 627.

The bill is not, however, to be dismissed for that reason. It will be dismissed- unless the complainant begins a suit in ejectment within thirty days, and prosecutes it diligently. Essex Co. National Bank v. Harrison, 57 N. J. Eq. 91. If the complainant succeeds in establishing his title and right to possession, the mortgage and the deeds will -still be a cloud upon his title and he will be then entitled to have them obliterated.

Note.—In that event air administrator- ad pros. of Camp-ought to be made a party defendant; or if the deeds are then to be declared assignments of the mortgage an administrator acl pros, of Pennington should be joined. '


author: Baokes, Y. C.

text:
    George Wilson et al., trading as United Tin Trading Co., v. Marion E. Sandall.
    [Decided August 26th, 1920.]
    Where there was sharp conflict in the testimony of the parties and in the expert testimony, the finding of the master who had first-hand opportunity to value and weigh the testimony will not be disturbed unless he erred in a matter of law or, plainly, as to the facts.
    On exceptions to master’s report.

      Mr. Lewis Fisher, for the exceptant.

      Mr. Norman Grey, for the respondent.
   Baokes, Y. C.

The master’s findings are sustained by the evidence. There was sharp conflict in the testimony om the question of percentage the defendant was entitled to for compensation—so-called expert testimony. The master had first-hand opportunity to value- and -weigh it, and as well that of defendant, which was not at all times attuned to- frankness. The master’s resolve in favor of the complainants’ contention is not to be- disturbed unless he erred in matter of law or, plainly, as to the facts. Iszard v. Bodine, 9 N. J. Eq. 309; Haulenbeck v. Cronkright, 23 N. J. Eq. 407; Eckerson v. McCulloh, 1 Atl. Rep. 700; Blauvelt v. Ackerman, 23 N. J. Eq. 495; Warner v. Hill, 74 Atl. Rep. 973; Bagley & Sewall Co. v. Traders Paper Board Co., 86 Atl. Rep. 1029.

As I find no- error the exceptions will be overruled, with costs.


text:
    Lehigh Structural Steel Company and Donnell-Zane Company, Inc., v. Atlantic Smelting and Refining Works et al.
    [Submitted May 24th, 1920.
    Decided August 15th, 1920.]
    1. The provisions of a contract between an association representing nearly all the building contractors of New York City and Long Island and an association representing the labor unions of these communities, binding the contractors to employ only union men in their enterprises therein, and having for its object the closed shop and the monopolization of the labor market by the unions, violates public policy as to monopolies.
    2. A sympathetic strike, merely to force the employer in other territory to comply with the invalid provisions of such a contract, is without just cause or excuse, and is unlawful.
    3. The owner of a building and its architect became parties to a conspiracy to prevent, by means of a sympathetic strike to compel a closed shop at another place, the performance by complainants of their' contract to erect the structural steel of the building, where after the strike was called without their knowledge, they, to prevent a general strike, ordered complainant off the job because they were going to complete it with nonunion labor. ,
    4. A building contractor will be allowed an injunction to prevent a breach of contract, rendering performance of the work impossible, by unlawful means and to serve unlawful ends, to the injury of the contractor’s business, .the remedy at law being inadequate, and the damages being incapable of ascertainment at law.
    5. An injunction to restrain interference with the complainant’s performance of a building contract by unlawful means and for an unlawful purpose will not be denied because specific performance of the contract may be an incidental result, though because of lack of mutuality of remedy suit for specific performance would no.t lie.
    6. Section 98 of the Corporation act does not reach a contract made out of this state.
    7. A contract entered into outside of this state by foreign corporations and to become binding only when accepted by one of them at its home office, does not come within the interdiction of section 98 of the Corporation act because signed by one of the parties to it within this state.

      8. The right of a foreign corporation which has not complied with the provisions of section 9S of the Corporation act, to maintain an action in this state on a contract made out of this state, is unaffected by the reciprocity provision of section 101 of the Corporation act where the law of the other state, though more exacting and imposing a mere drastic penalty, penalizes only for contracts made in that state.
    On bill, &e.

      Mr. Merritt Lcme, for the .complainants.

      Mr. William Harris and Mr. J acola Sijf, for the defendant At-1 lantic Smelting and Refining Works.

      Mr. John A. Matthews, for the defendants Tierney and Local No. 11, International Brotherhood of Bridge and Iron Workers of America.
   Baokes, Y. C.

This bill is to restrain a conspiracy to prevent the performance of a building contract by means of a strike to compel a closed shop.

The Lehigh Structural Steel Company contracted to fabricate and deliver to' the Atlantic Smelting and Refining Works, f. o. b. Allentown, Pa., the structural steel for a building at Brills, Newark, and also to' erect it. The Lehigh company sublet the erection to Donnell-Zane Company. The steel had been delivered and paid for, and Donnell-Zane had nearly completed the work when its employes, erectors, struck by order of Timothy Tierney, the business agent of Local No. 11, International Brotherhood of Bridge and Iron Workers of America, of which local, of Newark, they were members. ■ Donnell-Zane then declared its intention of employing other available labor which, of course, was non-union, and was notified by William E. Lehman, the architect of the building, and the sole representative and major-domo of the Atlantic company, that it would not be permitted to finish the job with other than union workmen, his stated reason being that there would be a general strike of the allied trades on the works if it were done otherwise. That that would have fallowed is common experience and was admitted by Tierney; and that the strike was called, and the general strike would have been brought into play to force the Atlantic company to breach its contract with the Lehigh company if Donnell-Zane persisted in defying organized labor, as hereinafter related, is manifest, and is not controverted. Lehman offered to mediate, but Donnell-Zane, knowing that a settlement meant a compliance with the demands of the unions and a complete surrender to them, would have none of it, and went ahead with non-union labor until stopped by an order of this court on a bill filed by the Atlantic company, alleging that it had been agreed that the work was to be done by union men only. Upon the return of the order to show cause, the restraint was dissolved and the bill dismissed on the ground that the allegation was not sustained by the proofs, and because an agreement to restrict the labor to union men, in the circumstances, would not be enforceable, as being in restraint of trade and against public policy. An effort was then made to settle the matter on a money basis, but this coming to naught, Lehman, for the Atlantic company, served the following notice:

“To the Lehigh Struotwal Steel Company:
“Gentlemen—You are hereby notified to cease any further work under contract made between the undersigned and the Lehigh Structural Steel Company for the erection of all structural steel for the refining plant being built for the undersigned on Doremus avenue, Newark, New Jersey. This notice is given to you because you insist upon using nonunion labor to complete the said work. The contract herein referred to is the one referred to as ‘Our Contract No. 723’ in your letter of November 15th, 1919, addressed to the undersigned wherein you' agree to do said work for the sum of $2,970.
“ATLANTIC SMELTING AND REFINING WORKS, INC..
“By Morris Birenbaum, Treas.”

The complainants thereupon filed this bill reciting the foregoing facts, and further setting up that the strike was ordered to force them, against their will, to conduct their business on the closed shop plan, viz., to employ none but union men. Tierney and Local No. 11 admit and avow this to be their object, and plead in justification that the Building Trades Employers’ Association of the city of New York (an association of nearly all the building contractors of New York), of which the Iron League is a member, and of which league the complainants are members, entered into a contract with the New York Building Trades Council of Greater New York and Long Island (an association of all the trades unions of those localities) on November 20th last, to become effective January 1st, 1920, and to continue one year, whereby the employers’ association bound its members to employ only union men in their various building enterprises in Greater New York and Long Island, and certain named additional territory; that the complainants refused to submit to this, and in a given instance, on a building in Forty-fourth street, New York, Donnell-Zane used non-union labor, for ’which violation the building is now under strike; that the present strike was ordered by Robert P. Brindell, president of the Building Trades Council, and put into execution by Tierney of Local No. 11, for the purpose of compelling Donnell-Zane to comply with the contract. The complainants admit the making of the contract and their refusal to abide its terms, because, as they claim, it was ultra vires the employers’ association to bind the Iron League and its members, restricting them in the selection of their workmen to members of organized labor, because it was in contravention of public policy, and, therefore, unlawful. At the trial the complainants attempted to show further, that the contract of the employers'’ association with the building trades council was not binding upon the individual members of the Iron League until they gave bonds, which they had not done. The conclusion I have reached, presently to be stated, makes it unnecessary to pass upon that issue.

The strike is purely sympathetic. Tierney and the men who obeyed his order had no grievance. He supplied them to Donnell-Zane, and wages, hours, and conditions, were satisfactory and according to the union regulations. Local No. 11 was not a party to the New York contract, nor a beneficiar}1’, except in the sense that all locals are benefited by the achievements of the various units of the federation. The men were not under contract, and individually had the right to quit work as it pleased them, and as members of the federation it ■was their privilege to use the strike in sympathy with the endeavors of their New York brethren, and to advance the common cause of organized labor, provided the motive—that is, the object sought to- be attained-—was not an unlawful one. But the privilege to strike is not license to strike. Those availing themselves of the privilege must respond in damages for the injury inflicted unless they can- show just cause or excuse. The burden is on them. The lawfulness of the motive for the sympathetic strike must, then, be sought in the New York situation. Tierney and Local No. 11, in their answer, defend the closed shop in New York on the ground that the contract between the employers5 association and the building trades council was “a legitimate, legal, honest contract entered into- in due and legal manner, for the economic betterment of labor union members and for the more constánt and thorough understanding between capital in this line of business.55 These generalities are meaningless. If it is meant that the contract was to secure to the unions a legitimate benefit and advantage in the field of labor, the proofs are painfully absent. I have looked into the contract and find nothing to explain the provisions therein for the closed shop except this dubious foreword: “In order to secure continuity of employment and uninterrupted production, it is hereby agreed between the Building Trades Employers5 Association of the city of New York and the Building Trades Council of the State of New York representing and having authority to act for;55 then follows the names of thirty-three locals of the various trades unions in the building line in New York and Long Island over which the building trades council has jurisdiction, the hours of work per week, a scale of wages and the closed shop clause. It coñcludes- with a paragraph that the agreement applied to all work performed within the geographical limits of Greater New York and Long Island, and in such additional territory as is included in the provisions; of the existing trade agreements between the several trade associations of employers and the unions- of their trades. The closed shop- clause is negative in phraseology, but when read in the light of the laws of the union, its. dominating character is revealed. The caption “To secure continuity of employment and uninterrupted production,55' as explained bv counsel for the union, means simply this: Before-the contract was made the various locals in the Metropolitan district struck for one reason or another ad1 libitum, thus involving the. other trades, sympathetically or of necessity, and putting them out of work. To overcome this evil and disastrous consequences to the members of the unions, the organization concluded to minimize their loss of time and wage by synchronizing their strikes. This was a perfectly proper self-serving purpose, but I fail to see how the closed shop' provision of the contract which, in effect, precluded non-union men from securing work in their crafts in Greater New York and Long Island,- serves to promote that object. “The continuity of employment” could as readily have been accomplished by binding the parties to a performance for the time stipulated. The,closed shop feature obviously bears no relation whatever to the other and legitimate purposes of the contract, and it is plain 'that the primary and ultimate thing organized labor sought was* the monopolization of labor in all lines of the building trade within the territory to which the contract a]Dplies. As to this there- is no question, for the counsel of the union frankly admits the indictment, and asserts that the movement to bring about the closed shop, not only in New York but elsewhere throughout the nation, ia within the law.

The principle of the closed shop'—i. e., the monopolization of the labor market, has found no judicial sponsor. In whatever form organized labor has asserted it, whether to- the injury of employer, or to labor, or to- labor unions outside of the fold, the judiciary, of the country has responded, uniformly, that it is inimical to the freedom of individual pursuit guaranteed by the fundamental law of the land, and contravenes public policy. On the other hand, public policy favors free competition, and the courts have been keen to recognize the right of organized labor to compete for work and wage and economic and social betterment, and to use its weapon—the strike—to- realize its lawful aspirations, but none has gone to the length of sanctioning a strike for a closed shop, which has for its object the exclusion from work of workmen who are not members of the organization. There is a wealth of literature and authority upon the subject in England and in this country. Walker v. Cronin, 107 Mass. 555; Reynolds v. Davis, 198 Mass. 294, Snow Iron Works v. Chadwick, 227 Mass. 382; Erdman v. Mitchell, 207 Pa. 79; O’Brien v. People, 216 Ill. 354; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424; Quinn v. Leathem (1901), A. C. 495. The cases are cited in these authorities and in those- hereafter referred to.

In Folsom v. Lewis, 208 Mass. 336, an injunction was granted restraining a strike called to force the signing of a closed shop agreement. The court said: "The master was, undoubtedly, right in finding that the purpose of the defendants and the real object of the strike were not so much to obtain certain slight advantages referred to in the proposed agreement, as to compel the employers, by inflicting this injury upon them, to submit to an attempt to obtain for the union a complete monopoly of the labor market in this kind of business, by forcing- all laborers who wished to work to join the union, and by forcing all employers to agree not to employ laborers, except upon such terms' as they could make with the combination tligt should control all labor in this business. This has been held to go- beyond the limit of justifiable competition. Conduct directly affecting an employer to his detriment, by interference with his business, is not justifiable in law, unless it is of a kind and for a purpose that has a direct relation to benefits that the laborers are trying to obtain. Strengthening the forces of a labor union, to put it in a better condition to enforce its claims in controversies that may after-wards arise with employers, is not enough to justify an attack upon the business of an employer by inducing his employes to strike.” In Connors v. Connolly, 86 Conn. 641, the hat manufacturers of Danbury, in settlement of a strike, entered into an agreement with the unions to employ union men only. The plaintiff lost his membership in the union and was discharged by his employer as a result of a threat by the union leaders to call a strike if this were not done, according to the terms of the agreement. In a suit for damages against the union leaders, the contract.was relied upon in justification. In dealing with this feature of the defence, Chief-Justice Prentice said that all the authorities were, as far as he had observed, in complete accord in holding “that, where the agreement is one which takes in an entire industry of anj' considerable proportions in a community, so that it operates generally in that community to prevent or to seriously deter craftsmen from working at their' craft, or workingmen obtaining employment under favorable conditions without joining a union, it is contrary to public policy.” He further* said that “the reasons for this conclusion are as evident as they axe convincing. 'There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor/ 'The common law has long recognized, as a part of the boasted liberty of the citizen, the right of every man to freely engage in such lawful business or occupation as he himself may choose, free from hindrance or obstruction by his fellowmen, saving such as may result from the exercise of equal or superior, rights on their part/ Monopolies of things of common use and need, whether created by governmental grant or bjr the acts of private persons or corporations, are odious, and their existence is contrary to public policy. They were condemned by the common law of England, and, although changing in their more common source, have remained under a like condemnation in that country and in this to this day. They are especially intolerable where they concern the basic resource of individual existence, to wit, the capacity to labor. The whole theory of a free government is opposed to them. Their beneficiaries may enjoy the favors; they bestow, and feel injured when deprived of them. But the interest of the public outweighs, that of individuals, and the public at large can see nothing but danger in the monopoly of anything of which there is a common need, or which is a. common resource of life.”

In Curran v. Galen, 152 N. Y. 33, the local organization of the Knights of Labor had a contract with the brewers of Rochester that no employe should work longer than four weeks without joining the union, and if he failed in this, he was to be discharged. The plaintiff, an employe of one of the brewers, refused to join, and his discharge followed the demand made by the defendants (union leaders) of the employer to comply with the agreement. The contract was set up, in justification and was overruled. The court, in a per curiam opinion, said: “Public policy and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper, or to restrict that freedom, and through contracts or arrangements with employers, to coerce other workingmen to become members of the organization and to come under its rules and. conditions, under the penalty of the loss of their position and of deprivation of employment, then that purpose seems clearly unlawful, and militates against the spirit of our government and the nature of our institutions. The effectuation of such a purpose would conflict with that principle of public policy which prohibits monopolies and exclusive privileges. It would tend to deprive the public of the services of men in useful employments and capacities.”

In Berry v. Donovan, 188 Mass. 353, it was claimed by the unions that the closed shop- was justifiable in law, on the theory of competition between organized labor and so-called capital for as large a share as possible of the income from their combined efforts in the industrial field. In disposing of this contention, Chief-Justice Knowlton said: “The gain which a labor union may expect to derive from inducing others to join it, is not an improvement to be obtained directly in the conditions under which the men are working, but only added strength for such contests with employers as may arise in the future. An object of this kind is too remote to be considered a -benefit in business, such as to justify the infliction of intentional injury upon a third person for the purpose of obtaining it. If such an object was treated as legitimate, and allowed to be pursued to its complete accomplishment, every employe would be forced into membership in a union, and the unions, by a combination of those in different trades and occupations, would have complete and absolute control of all the industries, of the country. Employers would be forced to yield to all their demands or give up business. The attainment of such an object in the struggle with employers would not be competition but monopoly. A monopoly, controlling anything which the world must have, is fatal to prosperity and progress. In matters of this kind the law does not tolerate monopolies. The attempt to force all laborers- to combine in unions is against the policy of the law, because it aims at monopoly.”

Vice-Chancellor Foster, recently, in Baldwin Lumber Co. v. Local Number 560, International Brotherhood of Teamsters, &c., 91 N. J. Eq. 240, held that coercion, by means of a strike, to compel a closed shop' in the employment of teamsters in the lumber trade, in a territory as large as Hudson county, was unlawful, as against public policy. The soundness of his conclusions is evidently convincing to organized labor, for it has denied itself an appeal.

Curran v. Galen stands as the law of New York on the question of the closed shop to obtain a monopoly of the labor market, although its wide sweep was criticised in the later ease of National Protective Association v. Cummings, 170 N. Y. 315. See Jacobs v. Cohen, 183 N. Y. 207; McCord v. Thompson-Starrett Co., 113 N. Y. Supp. 385; Auburn Draying Co. v. Wardell, 165 N. Y. Supp. 469; affirmed, 227 N. Y. 1.

In the cases relied upon by the defence, the policy of the law towards the principle of the closed shop, announced by the foregoing authorities, is not in the last qualified. Upon an examination of these cases it will be found that the unions convinced the court that their motives were intrinsically self-protective, in a lawful way, and not monopolistic of purpose.

National Protective Association v. Cummings, supra, was a struggle between rival unions. The majority of the court were of the opinion that the motive of the defendant union was the securing of work for its own members, and though the means resorted to were calculated to intimidate the employers of the plaintiffs, they were justified on the ground of lawful competition, and that-tire injury to the plaintiffs in thus preventing them from working, or getting work, was incidental; whereas the minority opinion held to the view that the defendant’s purpose was, through coercing the employer of the plaintiffs by threats of a strike, to drive the plaintiffs’ union out of business and altogether eliminate them as competitors.—a purpose which was as obvious as it was unlawful. The court simply split on the question of fact as to what the true motive was. Apparently, there was no division of minds as to the law upon either hypothesis. The principle underlying this decision has been variously applied by the New York courts. Park & Sons Co. v. National Druggists Association, 175 N. Y. 1; Wunch v. Shankland, 69 N. Y. Supp. 349; 179 N. Y. 545; Kissam v. United States Printing Association, 199 N. Y. 76; Bossert v. Dhuy, 221 N. Y. 342; Gill Engraving Co. v. Doerr; 214 Fed. Rep. 111. In Erdman v. Mitchell, supra, there was a similar rivalry between two unions and an injunction issued. The court adopted the view that the coercive measures of the defendants’ union were intended to eliminate the plaintiffs’ union as a contender for work.

Jacobs v. Cohen, supra, was a suit on a note given as security . and to be applied as liquidated damages for breach of a contract which required the defendant to employ in his shop workmen affiliated with a union composed of his employes only—a shop organization. A demurrer to an answer setting up that the contract was in restraint of trade and void on the ground of public policy was sustained. Judge Gray, who wrote the opinion in Curran v. Galen, 'distinguishes the two cases thus: “It would seem as though an employer should be, unquestionably, free to enter into such a contract with his workmen for the conduct of the business without it being deemed obnoxious upon any ground of public policy. If it might, operate to prevent some persons from being employed by the firm, or, possibly, from remaining in the firm’s employment, that is but an incidental feature. Its restrictions were not of an oppressive nature, operating- generally in the community to prevent such craftsmen from obtaining employment and from earning their livelihood. * * Their (workmen) combination is lawful, when it does not extend so far as to inflict injury upon others, or to oppress and crush them by excluding them from all employment, unless gained through joining labor organizations or trade unions. This we have decided, and this the law of the state sanctions.” Citing Curran v. Galen.

In National Fireproofing Co. v. Mason Builders’ Association, 169 Fed. Rep. 259, the mason builders’ association and the bricklayers’ unions of New York City entered into a working agreement providing, 'inter alia, that the builders must include in their contracts the fireproofing, and that the installation must not be sublet, and that the union men on the outside walls must be given the work of installing, under’ a penalty of strike for a breach. The complainant’s business was that of manufacturing and installing fireproofing, and, as it was not a builder, it was shut out of installing its wares. The bill was filed to declare the agreement void on the ground that it unlawfully interfered with the complainant’s business and property. The bill was dismissed, the court holding that the contract merely favored the members of the unions, who did the more disagreeable outside work, by giving them the pleasanter inside jobs, and that as the object of the combination was to advance the interest of the members of the unions, and not to harm others, though harmful to the complainant’s business, it had no ground for complaint.

In White Mountain Freezer Co. v. Murphy, 101 Atl. Rep. 357, the moulders’ union struck for a closed sirope and the bill sought a restraint. The supreme court was asked to rule on certain questions, as matters of law, in advance of the trial. The court refused to rule that a strike for a closed shop constituted a conspiracy, as a matter of law, but held that it established a prima facie case of unlawful interference, which may be justified, and that justification was a question of fact, to be determined as a question of law, only, if upon the evidence reasonable men could come to but one conclusion. It also found itself unable to rule that competition was a justification (citing Pickett v. Walsh, 192 Mass. 572), since there was no evidence of competition before the court to sustain the claim.

National Fireproofing Association v. Mason, it is argued, is dispositive of the complainants’ right to relief, if it is true, as is claimed, that they are not parties to the New York agreement. The difference between the two cases is obvious. In the cited case the plaintiff suffered injury in consequence of a lawful contract entered into between the unions and the builders to secure to the unions certain work in competition with the plaintiff, while here the complainants are victims of a strike, because they refuse to be parties to, or comply with the terms of, an unlawful contract which excludes the employment of non-union men, for which there has not been shown' legal cause oi* excuse. White Mountain Freezer Co. v. Murphy, supra, clearly indicates the point of .cleavage that pñma, facie a strike for a closed shop is unlawful, but may be justified by showing., that it was inaugurated to advance the material interests of the unions.

The conclusion upon the case as presented is, that the New York contract violates public policy, and that the sympathetic strike is without just cause or excuse and is unlawful.

Lehman and the Atlantic company say they were not parties to the sympathetic strike, and, consequently, not parties to the conspiracy of the unions. _ That they were, it seems to me, admits of no doubt. They were, and are, fixed in mind not to allow the work to be done by non-unionists, and to this end brought suit to restrain the complainants, and when they failed, ordered the complainants off the job for no other reason than that they were going to complete it with the labor of the unanointed. Their excuse is that they feared the wrath of organized labor and were acting in self-defence. In other words, they breached their contract to avert a general strike of the trades unions on the work. That that is not a legal excuse for breaching the contract needs no argument. And that it furnishes a legal excuse for joining the oppressors of the complainants is even less defensible. Their protection lies in the law, not in the graces of those who transgress the law. Their further contention that they were moved to their course by causes wholly independent of the motives of the unions, that they were prompted solely by a desire to escape a labor squabble, and to have their building completed expeditiously, is irreconcilable with their activities and the means they used to accomplish the unlawful aim of the unions, in common with the unions, to make the sympathetic strike effective, viz., by preventing the complainants from employing non-union men. Their motive may not have been co-extensive with that of the unions; they may have been wholly indifferent as to the success of the ultimate object of the sympathetic strike, but a common ground upon which they met the unions, a common motive that actuated them, and made them co-conspirators, was the enforcement of the closed shop at Brills.

Lehman and the Atlantic company ask upon what theory they can be deemed co-conspirators, inasmuch as the proofs show the strike was called by the unions without their knowledge and without consultation or intimation. The answer is, they joined the conspiracy later on, after the strike, when, out of fear of a general strike, they broke their contract to help it along. This was decided in Aberthaw Construction Co. v. Comeron, 194 Mass. 208—a case strikingly similar to the one at hand. There the Christian” Science Church contracted with the Aberthaw company for the construction of an edifice in Boston. The labor unions insisted that the contractor discharge a non-union man. The contractor refused and the unions threatened a strike, whereupon the church ordered the contractor off the job. The bill for an injunction to restrain interference with the performance of the contract set up' that the purpose of the union was to force the contractor to employ union men exclusively, and that the church, bowing to the will of the union, breached the contract. A demurrer to the bill assigned n.s causes that the plaintiff had an adequate remedy at law, that it was unjust and inequitable that the contractor and the union should be allowed to fight out their differences on the church premises, and that there was nothing alleged in the bill entitling the plaintiff to a remedy in equity. The demurrer was overruled, and on a reference to a master he found, inter alia, as follows: “T also find that the Christian Science Board of Directors, one of tire defendants, broke the contract existing between said board and the plaintiff, induced thereto solely through fear of ‘trouble,’ the meaning of which word as used in this case I have already defined. T rule, as a matter of law, that in such action said board acted without any legal justification. Against the objection and exception of all the defendants I find as an inference of fact, from the facts already found, that the Christian Science Board of Directors, together with the defendants’ district council and Cameron, conspired together to compel the plaintiff to employ only union carpenters on said job. And I likewise further find that in pursuance of such conspiracy that they caused a breach of the existing contract of employment between the plaintiff and the defendant board without any just cause or lawful provocation.” On exceptions, the supreme court sustained the findings of conspiracy and held that the church became a conspirator within the meaning of the law, when it breached its contract. The court said: “The plans of the other defendants [the unions and its business agent, Cameron] were well on foot when this defendant [the church], who had been informed of their object intervened, and sought by its representations to persuade the plaintiff to avoid all future difficulty, by discharging an employe who had not become obnoxious to the corporation, except by reason of its pecuniary interest that there should be no unreasonable delay in the completion of its church. * * * It is plain that the interview [between representatives of the church and the unions] with the accompanying proposals [that the contractor discharge the nonunion workman] was advisory only and not intended to reenforce or aid in the coercive measures adopted by the unions and their representatives, or to form a part of the 'measures of active interference which the other defendants were taking to enforce their demand. The ruling that the proposals made at this conference did not make them co-conspirators by participation, therefore, must be sustained. In the general scheme of the conspiracy, the breaking of the contract which subsequently followed was an important element, and when taken in connection with the action of the other bodies [the unions], of which the board had knowledge, the concluding finding that the defendants against whom the bill is prosecuted, ‘conspired together to compel the -plaintiff to employ only union carpenters,’ and ‘that in pursuance of such conspiracy they caused a breach of the existing contract of employment between the plaintiff and the defendant board without any just cause or lawful provocation,’ was well warranted.”

The Atlantic company next tabes the stand that the remedy of the complainant Lehigh company is at law for damages, citing McGann v. LeBrecque, 91 N. J. Eq. 307.

The general rule is that compensation in damages is the relief for breach of a contract, and that the remedy is at law and that the measure of damages is the immediate loss, tlié incidental losses., which are often the heavier, being regarded as, too remote to bring into the calculation. Where, however, as here, the complainants are not suing for a breach-, but to prevent a, breach of a contract by unlawful means, and to serve unlawful ends, to the injury of the complainants’ business, the remedy at law is inadequate. The damages for such an injury are incapable of ascertainment at law, and justice demands that the injury be prevented bjr injunction. The many instances in which equity has intervened by injunction to restrain injury by strikes testify to the jurisdiction. As to the irreparableness of the injury to the complainants’ business by breach of the contract due to the strike, the findings of the master in the Aberthaw Case may be profitably quoted: “Any failure of a contractor to fully perform a contract, regardless of the reason or the party in fault, impairs his reputation for efficiency, and, consequently, is a damage to his good-will. Let the fact of a breach become rumored about and it must need be explained. But friendly explanations cannot run co-extensive with rumor spread by thoughtless friends or competitive foes. And then, again, explanations do not always explain. This is especially so in the event of a breach growing out of a labor trouble. If a contractor gets a reputation, however slight and wheresoever the fault, of being unable to get along with his laborers, he is avoided by contractors in other lines of work and by those who contract with the contractors. A labor trouble looked upon merely from a money standpoint, involves financial loss in many directions, and its ramification for evil in other ways when set in motion no man can fully tell, beforehand or thereafter. I, therefore, find in this case that a breach of- the contract between the plaintiff and the defendant board, without fault on the part of the plaintiff, unless enjoined, would have worked hurt and damage to the good-will of its business, unsusceptible of even approximate computation in money.”

Mr. Justice Swayze, in the McGann Case, did not intend to question the jurisdiction of equity where the remedy at law is inadequate, but to instruct that in the class of cases he was dealing with the jury and not the chancellor held the yard-stick of the measure of damages, and that the remedy was at law though the injury be irreparable in money.

The Atlantic company further contends that this suit is for the specific performance of a building contract, and that as equity would not entertain jurisdiction to compel the Lehigh company to perform its contract (Atlantic & S. Ry. Co. v. Board of Chosen Freeholders of Atlantic County, 84 N. J. Eq. 618), it will not, at the instance of the complainants, compel the defendant to do so. That there must he mutuality of remedy in specific performance is an established rule of equity, but the rule lacks application. As has already been said, the present bill is not to specifically enforce the contract, though that may be the incidental result of the injunction, but the relief sought is to restrain the defendants from interfering with the complainants’ business —the performance of the Brills contract—by unlawful means and for an unlawful purpose.

Technical objection is raised to complainants’ right to maintain this suit because they are foreign corporations, and did not obtain certificates from the secretary of state authorizing them to do business in this state before the bill was filed as provided by section 97 of our Corporation act. Comp. Stat. p. 1657. The Lehigh company is a corporation of Delaware, and Donnell-Zane is a corporation of the State of New York, and neither obtained the required certificate until after.the suit was brought. But that omission does not bar them from suing in this state, if the suit be on a contract, unless the contract was made in this state. Section 98 provides the penalty. It reads that

“until such corporation so transacting business in this state shall have obtained said certificate of the secretary of state, it shall not maintain any action in this state upon any contract made in this state."

It has been repeatedly held that the statute does not reach contracts made outside the state. Faxon Co. v. Lovett Co., 60 N. J. Law 128; D. & II. Canal Co. v. Mahlenbrock, 63 N. J. Law 281; Owen & Co. v. Storms & Co., 78 N. J. Law 154; Slaytor-Jennings Co. v. Specialty Box Co., 69 N. J. Law 214; McMillan Co. v. Stewart, 69 N. J. Law 212; Falaenau v. Reliance Steel Co., 74 N. J. Eq. 325.

The contract in this.case was made at Allentown, Pennsylvania, the principal office of the Lehigh company. Before it was finally reduced to writing and executed there was letter communication of proposals and acceptances for the material and work between the Lehigh companjg at Allentown, and Lehman, the architect, at Newark; and there were also personal negotiations between representatives of the Lehigh company ancl Lehman, at Newark. When all arrangements had been made, the Lehigh company forwarded the draft of contract in duplicate for the signature of the Atlantic company, a New York corporation, with headquarters in Brooklyn. Instead of being executed at its customary place of business, the treasurer of the company signed it at Newark while on a visit there, and it was from there mailed to Allentown, where it was executed by the Lehigh company. The contract bears the caption over the signatures of the contracting parties “Accepted at Allentown,” meaning, as the parties undoubtedly understood, that it was to become binding only when returned and accepted by the Lehigh company at its office in Allentown1. A contract entered into outside this state by foreign corporations does not come within the interdiction of the statute because it was signed by one of the parties to it within this state.

It is not to be inferred from what has been said that the present suit would not have been entertained if the contract had in fact been made in this state, for it is questionable whether this suit is an “action” upon a contract. Falaenau v. Reliance Steel Co., supra. And whether “maintain,” as used in the statute means commence, and that an action upon a contract-would be defeated unless a foreign corporation had its eei*tificate before suit is begun, is also open to debate. There are authorities holding that the certificate is timely if taken out pending the action. Thomp. Corp. § 6720. The points have been argued in the briefs but they are not ripe for decision.

The reciprocity provision of section 101 of the Corporation act, imposing upon foreign corporations taking out certificates to do business in this state, “the same taxes, fines, penalties, licenses, fees, obligations and requirements of whatever kind” as are imposed by the laws of the state of the foreign corporations upon corporations of this state, if they are greater than those of this state, adds nothing, in the present instance, to the penalty imposed by section 98. The Delaware statute prohibits foreign corporations from doing business in the state “through or by branch offices, agents or representatives located in this state” until certified under penalty of a misdemeanor, &c. Rev. Code p. 1007 § 2101a. The privilege is more liberal than ours, in that all contracts are not forbidden, although the penalty is more severe. In New York the penalty for doing business without a certificate is that the offending corporation shall not “maintain any action in this state upon any contract made by it in this state unless befóte the making of such contract it shall have procured such certifícate.” P. L. 1917 ch. 594. The requirements are more exacting and the penalty more drastic, but the act, like ours, penalizes only for contracts made in the state.

There -will be an injunction restraining the strike and the breach of the contract. The form of the injunction will be settled on notice.