text:
    Consolidated Railway Electric Lighting and Equipment Company v. United States Light and Heating Company et al.
    [Decided August 1st, 1910.]
    1. Upon a bill for reforming and enforcing the specific performance of an agreement for the assignment of patents comprising existing and future inventions, filed by the assignee of the original purchaser against one of the original vendors, and also the assignee of this vendor or assignor, which was demurred to generally for want of equity, and specially because the contract as sought to be reformed should not be enforced because it is void as against public policy and inequitable as being too general and unrestricted, the question in a court of equity comes finally to the issue, whether on the entire facts admitted or proved, the contract for the assignment of future inventions goes no further than a restraint fairly and reasonably necessary for the protection of the assignee, under all the circumstances of the case.
    2. Where the bill, as in this case, shows the payment to the original vendors of the sum of $1,995,000 for the inventions existing and future, the receipt of this sum as the consideration being admitted by the demurrer, it cannot as a matter of law, and in the absence of any qualifying facts, be said that an agreement for the transfer of future inventions of the same character, based on the immediate payment to an inventor of such an enormous consideration, is, on the face of it, illegal.
    On demurrer to amended bill. '

      Messrs. Collms & Corbin and Mr. Charles Creen Smith (of the How York bar), for the demurrants.

      Messrs. Lindaburij, Depue cC Faulks, for the complainants.
   Emery, V. C.

The general object of this bill is the specific performance of an agreement for the assignment of patents or inventions, and it is filed bjr the assignee of the original purchaser against one of the original vendors, and also the assignee of this vendor or assignor. The agreement in writing (a copy of which is annexed to the amended bill) is dated July 31st, 189-1, and by it Morris Moskowitz, Leon D. Adler and Abraham S. Adler, as the owners of certain inventions and improvements, for some of which patents had been allowed, after reciting that the National Electric Car Lighting Company had purchased from them all the right they had to these inventions and improvements, patents on which they have applied for, or might thereafter apply for, and had paid to them the sum of $1,995,000, assigned to the National, &c., company in consideration of the payment of this sum, all their title and interest in the said inventions and improvements, as well as to “all improvements and inventions' made or to be > made by them or either of them.” This agreement or assignment is general and covers all inventions of whatever character. On the hearing upon the original.bill, it was held unenforceable in equity according to its terms, on the ground that such general agreement was void, but on the evidence produced as to the circumstances of making the agreement, leave was given to apply to amend the bill for the purpose of reforming the contract so as to limit the improvements and inventions to improvements, and inventions for the special subjects of electric car lighting purposes, made bjr the grantors, or either of them, and letters patent issued thereon. The bill thus amended alleges (paragraph 4) that Moskowitz and the Adlers proposed (among other things) to assign to the National company, in consideration of the sum of $1,995,000, all “the right to all further improvements and inventions for electric car lighting purposes made or to be made by them, or either of them;” that this proposal was accepted by the National company, and that in pursuance thereof, the contract in question was drawn, but that by inadvertence, accident and mistake the contract as written did not conform to the proposal and acceptance, in that there was omitted the qualifying or limiting clause before the habendum, “for electric ear . lighting purposes and the letters patent issued or to be issued thereon,” and the contract as actually made was, with respect to future improvements, broader than the parties agreed to or had intended. It further appears by the amended bill that the payment by the National cómpany of the consideration mentioned in the assignment (the sum of $1,995,000) was made and received by the grantors; that the written contract was recorded, and that, subsequently, Moskowitz, in recognition of the obligations of the agreement, assigned sixteen inventions for electric ear lighting purposes, and the applications therefor, in which letters patent were subsequently obtained, of various dates between July 9th, 1895, and October 24th, 1899, and in accordance with these assignments the letters patent were issued to the National company; that on October 14th, 1899, the National company assigned to another company, the Electric Axle Light and Power Company, its title to these letters patent and its whole right, title and interest

“in and to any and all improvements and inventions for electric car lighting purposes to which it was or might be entitled under contract with any of its employes or otherwise,”

and that after this assignment, of which Moskowitz and .the Adlers had notice,- and in recognition of his obligations under the contract of July 31st, 1894, Moskowitz, on March 18th, 1900, assigned to the Electric Axle company three other letters patent for electric car lighting purposes, and on December 20th, 1899, Moskowitz and the Adlers, together with another person, assigned to the Electric Axle company another patent of like character; that on August 29th, 1904, the Electric Axle company assigned to the complainant, the Consolidated Eailway Electric Lighting and Equipment Company,

“its entire right, title and interest to applications and letters patent to which it was then or might thereafter be entitled under the contract of July 31st, 1894, and the assignment of October- 14th, 1899.”

The bill then charges that, after the agreement of July 31st, 1894, the defendant Moskowitz made certain improvements and inventions for electric car lighting purposes, and also certain improvements in the inventions transferred under the contract of July 31st, 1894, and filed applications for patents, on which t-welve letters patent were subsequently issued between September 10th, 1901, and August 23d, 1904. Eour of the letters patent were issued directly to tlie defendant company, the United States Light and Heating Company, upon assignments made pending applications for patents, and the remaining eight, for which letters patent were issued to one James H. Young, as trustee, were subsequently assigned by Young as trustee to the defendant company. Young is alleged to have received letters patent and to have made the assignment as trustee for Moskowitz.

The bill further alleges that Young had notice of the agreement of July 31st, 1894, of Moskowitz with the National corn-pan y, and acquired the inventions and improvements and applications from Moskowitz without paying value therefor, and that the defendant companjr when it acquired title from Moskowitz and Young, trustee, also had notice of the agreement, and that it acquired this title without paying value therefor and with full notice and knowledge of the right of the National company and its assigns to the said inventions and improvements as set forth in the bill.

The demurrer filed to the amended bill by the United States company and Moskowitz, besides the general allegations of want of equity, specially sets up that the contract as sought to be reformed should not be enforced because it is void as against public policy and inequitable as being too general and unrestricted.

On the original hearing I held that a general assignment or agreement to assign all improvements or inventions to be made, without restriction as to time or character, was not only against public policy, but was not recognized by the patent laws of the United States, which wrnre the only basis of any assignable right. U. S. Rev. Stat. § 4898; Walk. Pat. (4th ed.) § 274, and cases cited. Defendants claim that the agreement, although limited to future inventions for electric car lighting purposes, is equally void as against public policy, and is on the face of it unenforceable in equity as coming within the class of contracts described by Mr. Justice Bradley, in Aspinwall Manufacturing Co. v. Gill (1887), 32 Fed. Rep. 697, as naked assignments or agreements to assign in gross a man’s future labors, as an author or inventor, .in other words, a mortgage on a man’s brain to bind all its future products. Such a contract, he said, does not address itself favorably to the consideration of the court. In this case an assignment of letters patent for a machine, “together with all improvements I may hereafter make,” for the sum of $12,000, was sustained as an equitable assignment of an improved machine subsequently patented to another, and the contract (at p. 701) was said to be one which the vendor had the right to malee and was willing to make and by which he was bound.

In Printing, &c., Co. v. Sampson (1875), 19 L. R. Eg. Cas. 462, the purchasers of a patent, who were about to form a company for the purpose of using a patented invention, paid the vendors a large sum in shares for assignments of the patents and all future patents which the vendors might acquire “with respect to the inventions or any of them or any of a like nature.” This contract -was sustained, and in answer to the objection that such an agreement to assign future patents was against public policy, as tending to discourage inventions, Sir George Jessel said, substantially: “In such cases, there must be first considered the right to freedom of contract on the part of the assignor, and this right, as a matter of the highest public policy, is not lightly to be interfered with.” Next, it cannot be assumed that a contract for the product of future labors of a man’s brain, as author or inventor, is necessarily against public polic}1, and, on the contrary, many examples may be given of cases entirely repugnant to this argument, and on which the argument on public policy as to the voluntary restraint is the other way. So far from necessarily discouraging future inventions or mental labor (which is the basis of the argument on public policy), such contracts may fairly be said often to encourage the author or inventor to such work and enable him to invent or produce. It cannot therefore be safe to hold, as was argued in the case, that the agreement was of itself against public policy and void. And in other decisions, contracts for the assignment of future inventions, relating to a particular subject, have been sustained and enforced. Reece Folding Co. v. Fenwick (1905), 140 Fed. Rep. 287; Bates Machine Co. v. Bates, 192 Ill. 138; Birkery Manufacturing Co. v. Jones, 71 Conn. 113; 40 Atl. Rep. 917.

My present view is that the question in a court of equity comes fmalty to tlie issue, whether on the entire facts admitted or proved, the contract for the assignment of future inventions goes no further than a restraint fairly and reasonably necessary for the protection of the assignee, under all the circumstances of the case. And if no further facts appear on the hearing to change the aspect of the case as it appears in the bill, I conclude that there is no bar to its enforcement, on the ground that on the face of the bill the contract was necessarily a contract against public policy, and that its enforcement against an assignee, even when voluntary and with notice, is inequitable.

The bill itself shows the payment to the grantors of the sum of $1,995,000 for the inventions existing and future. The receipt of this sum as the consideration being admitted by the demurrer, it cannot, as matter of law and in the absence of any qualifying facts, be said that an agreement for the transfer of future inventions of the same character, based on the immediate payment to an inventor of such an enormous consideration, is, on the face of it, illegal. Under the circumstances as disclosed, it cannot be held to be beyond the power of the vendors, or to have been as to them, illegal or inequitable. Defendant must answer the ease stated by the bill, and the demurrer to the amended bill will be overruled.

Before entering an order overruling the demurrer, the stipulation of counsel as to the amendment of the bill and demurrer should be carried out.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    River Realty Company v. Rosa Blumenheim et al.
    [Decided August 1st, 1910.]
    A bill filed under the General Tax law (P. L. 1908; p. 482 § 59) to foreclose the equity of redemption must allege that some certain amount is due, otherwise it is demurrable.
    On demurrer to bill.

      Mr. Porter and Mr. Ernest F. Keer, for the demurrants.

      Mr. PummeriH, fox the complainant.
   Emery, V. C.

A bill to foreclose the right of redemption on a sale for taxes sets out the sale for taxes of $60.28 due and unpaid at the time of the sale, October 19th, 1906, and the purchase by complainant for $72.2-0 with a delivery of a certificate of sale. The bill is filed under the act of 1903 (P. L. 1908 p. 433 § 59) to foreclose the equity of redemption.

The bill fails to allege that any sum is due at the time of filing the bill, and this omission is relied on as one cause of demurrer.

The objection is well founded. Every bill must disclose with sufficient certainty the right of complainant on which the decree is prayed.

Defendant is called into court to be foreclosed on failure to pay a debt charged on his land and the existence and amount of the debt which he is asked to pay is a part of the complainant’s case for equitable jurisdiction, which should be stated in the bill as the foundation of complainant’s right to the decree for payment which is prayed. Proof of the amount claimed to be due may undoubtedly be made prima facie by the mere production of the certificate of sale, and the burden of proving tender or payment is on the defendant. But this matter of proof required does not affect the necessity of expressly alleging in the bill as the basis of complainant’s right to a decree, that a certain debt is due, secured on defendants’ lands, for the failure to pay, which debt within the time fixed by the court complainant prays foreclosure of the right to redeem.

In all forms of bills to foreclose mortgages, this allegation as to the amount due appears, and the allegation is not, 1 think, superfluous. Proof of the amount due is made prima facie by the production of the bond and mortgage, but the statement as to the terms of these in the foreclosure bill does not seem' to have been considered as of itself a sufficient statement that the amount thus appearing to be due is in fact due on filing the bill. That the facts on which is based complainant’s right or title to the equitable relief sought, must he stated with certainty and clearness, is one of the fundamental rules of equity pleading. St. Bq. PI. § 2J¡.1. ' The form of bill in this case was taken from Mr. Black’s book on Taxation, recognized as a very careful statement of the laws and decisions on taxation, and for that reason I have considered at some length the question of the correctness of the form in this particular, which probably was not specially called to the author’s attention.


text:
    Pomeroy Ink Company v. Eltwood Pomeroy.
    [Decided August 1st, 1910.]
    1. The complainant purchased from the receiver of an insolvent corporation its assets, comprising its name and good will as a going concern, including certain secret formulas and formula notes (commonly known as trade secrets), relating to the manufacture or composition of inks, mucilage and sealing wax, discovered by the defendant while an officer and manager of the insolvent company during the time it was in operation, and by him communicated to that company, and who moreover was afterwards employed by the receiver as general manager in continuing its business until a sale could be made as a going concern, and as such manager, and under the receiver’s directions, showed the formulas and formula notes to prospective purchasers as assets of the company, and was employed by the complainant after the purchase. Upon a bill to enjoin the proposed sale of such formulas and formula notes by the defendant, who claimed that, as inventor or discoverer, he still had the right to sell them or disclose them to others, and that .complainant’s rights thereto were not exclusive — Held, after examination of the evidence that as between the defendant and the company, which was wound up as an insolvent corporation, it was intended that they should be its exclusive property, and that they passed to the receiver and to the purchaser of the assets from the receiver, as part of the property assets of the insolvent company and that defendant’s attempt to deprive the 'complainant of the substantial benefit of its purchase by said proposed sale by him would be enjoined.
    2. The form of the injunction issued in Morison v. Moat (Vice-Chancellor Turner, 1851) 9 Hare 21/lj affirmed on appeal, Ibid. 267, approved and followed.
    Heard on bill, answer, replication and proofs.

      Mr. Frank Benjamin, for the complainant.

      Mr. Eltwood Pomeroy, pro se.

   Emery, V. C.

The Ponieren1' Brothers Company was a corporation of this state, engaged in the manufacture and sale of inks, mucilage and sealing wax, and from about 1896 until the companj'' was decreed to be insolvent, in March, 1908, Eltwood Pomeroy was its president and the general manager in charge of its business. As such he supervised and had charge during these years of the experiments for manufacture — the preparation of its formulas for the composition of its products and the custody of its formulas and formula notes. These formulas and notes represented and were the result of continual investigation and experiments, and included the modification of formulas and processes found necessary from time to time to meet business conditions,, and they show continual changes and modifications. These formulas and formula notes, with their changes and modifications, containing substantially the information,as to the company’s process of manufacture, were kept secret. They were largely, if not altogether, the result of Eltwood Pomeroy’s experiments and investigations.

Upon the company being declared insolvent, the formulas and formula notes were turned over to the receiver as part of the assets of the company, being valued in the inventory at $2,000. Eltwood Pomeroy was employed by the receiver as general manager in continuing the business until a sale could be made as a going concern, and as such manager, and under directions of the receiver, he showed the formulas and formula notes to Thomas Cooper and David Young, Jr., prospective purchasers, as assets of the companj'-. Cooper believing them to be assets of the company, and a valuable part thereof, as representing the secret processes of the company’s manufacture, subsequently purchased the assets of the Pomeroy Brothers Company, including its name and good will from the receiver. After this purchase he conveyed these assets so purchased to the Pomeroy Ink Company, the present complainant, and the formulas and formula notes were delivered as part of the assets. The complainant also, upon its commencing business, employed Eltwood Pomeroy, and he had charge (among other things) of its advertising circulars. In one of these a pamphlet called “Inklings,” published in July, 1908, under Eltwood Pomeroy’s supervision, occur these statements :

“Recently tlie Pomeroy Ink Company was incorporated; this month the stock, plant, formulas, good will, patents, trade-mark, business of Pomeroy Brothers Company was purchased by the new company. As far as quality of goods is concerned you will get identically the same from the new as from the old company, except as we may improve them in the future and we expect to never cease improving.”

This pamphlet contained also a personal note to stationers, signed by Eltwood Pomeroy, bespeaking for the new company a continuance of the orders previously given to him and the old company, and the pamphlet, after commenting on the increased cost of manufacture, states that “on many articles we have so improved the processes of manufacture that we will give you the benefit of that ec-onomy, but advance some, we must.”

Eltwood Pomeroy had copies of these formulas and formula notes, and after leaving the employ of the complainant companjr, offered for sale to dealers complete sets of the formulas, stating in his circulars or letters offering them for sale, that he was the main owner’ of Pomeroy Brothers Company, and had sole charge of its chemical research, and that under his supervision, its formulas had been completely revised and wonderfully improved. The offer to sell included full directions, exact names of colors and raw materials and where to buy them. He also states that the Pomeroy Brothers Company, being now out of existence, he is not under any obligation as to his knowledge.

The present bill is filed to enjoin such sale, and is based on the claim that the formulas and formula notes are the property, and the exclusive property of the complainant. Defendant’s right to sell the formulas is based on the claim that as the inventor or discoverer of the formulas, he still has the right to them, to sell them or disclose their.secret to others, and that the complainant’s right to the formulas is not exclusive. The argument forcibly presented by the defendant on his .own behalf is, that the formulas not being trade secrets confided to him by an employer, his own rights to them as the product of his own industry and ability have not been transferred to the employer by any contract, and therefore still remain in him, subject only to a rig]it of Pomeroy Brothers Company to also use the formulas as part of its processes of manufacture during its existence, which right, being personal only, ceased on its insolvency and did not pass to the receiver or his grantees.

The nature of the right of an inventor or discoverer to a process of manufacture or a composition of matter which has been invented or discovered, is well settled. Such invention or discovery does not of itself confer upon the discoverer an exclusive property right good against all the world, as does the ownership of tangible chattels, and such exclusive right good against the world can only be acquired under patent or similar laws, which limit tiie time and prescribe the conditions of acquiring such exclusive right. But even if exclusive property rights to any discover}' or invention are not thus secured under patent laws, the discoverer or inventor still has a kind of property right in his invention or discovery, which he may transfer either absolutely or to a limited extent. Such transfer will pass to the vendee the title to the discovery, either absolute or limited, against the discoverer, but as against others than the vendor or transferrer, the title, not being protected by exclusive patent laws, depends upon the right of the inventor or discoverer, or his grantee, to prevent the use of the invention or secret process by the person claiming to use them, and .this right of prevention is based on special equities or rights against such person which disentitle him to tire use. If knowledge of the process or invention has come to such claimant fairly and honestly and under circumstances which give the inventor no personal claim against him, the use will not be enjoined.' In most cases this equity against the use is based on the confidential communication of* the invention or process by an employer, being the inventor or owner of the process or invention, to employes, and in this case the employe, or his grantee, will be enjoined from using or communicating the process or invention of his employer. A few leading cases, some in our own courts, suffice to illustrate these well-settled general principles.,. Morison v. Moat (Vice-Chancellor Turner, 1851), 9 Hare 241; affirmed on appeal, Ibid. 257; Peabody v. Norfolk (1868), 98 Mass. 452; Chadwick v. Covell (1890), 151 Mass. 190; Stone v. Grasselli Chemical Co. (Court of Errors and Appeals, 1903), 65 N. J. Eq. (20 Dick.) 756; Vulcan Detinning Co. v. American Can Co. (Court of Errors and Appeals, 1906), 72 N. J. Eq. (2 Buch.) 387.

^The present ease is not one where complainant’s right to the rise., of the formulas and' formula notes as against the defendant, depends upon the principle of confidential communication, for as to this feature of the case, the defendant, while an officer and manager of the company, was himself the inventor or discoverer of the process and communicated it to the company. But the vital question in the case is whether the defendant, the discoverer or inventor of the processes disclosed by the formulas', transferred to the Pomeroy Brothers Company the exclusive right to the formulas and formula notes, as their property. If so, such transfer is binding on him- and passed with the assets of the company to the complainant. Ho written or express transfer was made or is claimed, but there is no reason why the transfer of such rights may not be based on an implied as well as on an express contract. -¡ In Silver Spring, &c., Co. v. Wollworth (Rhode Island, 1890), 19 Atl. Rep. 528, it was determined that, under all the facts in the ease, a contract by the discoverer (an employe) for transfer of the right to the employer was implied, and would be enforced; and in Baldwin v. Von Micheroux (Supreme Court, 1893), 25 N. Y. Supp. 857, it was also held that, under the facts proved, the employers were the owners of the secret processes for flavoring extracts compounded by the employe, although no express contract was proved, and the employe was enjoined from using them. The evidence of an implied contract giving the employer the exclusive right as against the discoverer should, of course, be clear and satisfactory, as otherwise the inventor would be deprived of a benefit of his discovery, to which he would be reasonably entitled, on leaving the employment, but if the facts of the case lead clearly to the conclusion that from the acts and conduct- of both parties it was intended that the process or formulas discovered during the employment should belong to the company alone, the contract should be enforced.

Considering all the proofs relating-to the discovery and use of these formulas and formula notes, I reach the conclusion upon the evidence, that, as between Eltwood Pomeroy and Pomeroy Brothers Company, it was intended that they should be the exclusive property of the company. They were in their nature processes or compositions which could not be protected to any extent by patents, for the combinations patented while suggesting valuable processes might easily be avoided or rendered difficult to enforce by changes in proportions or ingredients, and as appears by the evidence, the formulas from time to time were subject to continual modifications to meet business .conditions or for special requirements: The only practical method of securing to the company the benefit of the formulas was by secrecy and the method adopted by the company under Eltwood Pomeroy’s management for the protection and use of the formulas clearly shows that this was the basis for building up the business of the company, at whose expense the experiments were made.

Eltwood Pomeroy was (as he says in his circular letter) the main owner of the company, as well as its president and general manage]', and this circumstance must also have weight in deciding this issue of an implied contract, that so far as he was concerned, the formulas and notes were assets and the exclusive property of the company. This situation probably explains the absence of a formal express contract, which, in the ordinary course of business, would probably have been made.. And his admissions since the failure of the company by the inclusion of the formulas among the assets at a valuation which depended wholly on the exclusive use, by his representations of their value to intending purchasers, and especially his statements to the trade in July, 1908, that the formulas, good will and business of the Pomeroy Brothers Company had been purchased by the complainant, are also facts pointing to the conclusion that from the time of his assuming the management of the original company until he left the service of its successor, he supposed that the formulas belonged to the company as its property and not to himself. His subsequent attempt to deprive the complainant of the substantial benefit of its purchase should not be permitted to succeed. The disclosure of the processes with the directions for their use, proposed bjr the defendant, would probably result in the destruction or serioús impairment of the business which complainant has purchased, relying on the secrecy of the formulas. If the formulas and notes and the Pomeroy Brothers Company’s secret process of manufacture, as shown by these, belonged to this company as their property, they passed to the receiver and to the purchasers of the assets from the receiver, as part of the property assets of the insolvent company.

ÍAt the hearing the question was also raised by the defendant as to the form of injunction, in case it should be held that complainant was entitled to an injunction. The preliminary injunction restrained the defendant from selling or disposing of any of the formulas or formula notes sold by the receiver and from revealing the contents of the formulas and formula notes to any other person or corporation, either by disposing of them or in any other manner. It was objected that this was too general and that the injunction should describe or define specially each formula whose sale was enjoined. The general form is, however, the one sanctioned by high authority and was adopted in Morison v. Moat, supra, the first leading case on this subject, and has been followed in other eases.

To insert the formula in the injunction would destroy its secrecy.j

I will advise decree for permanent injunction in tjie form of preliminary injunction.


text:
    Mary J. Tygar v. Samuel A. Cook et ux.
    [Decided October 14th, 1910.]
    1. In a suit by a grantor to set aside a deed reserving a life estate, ’ evidence held not to show that the grantee, taking also a lease of the premises, was to support the grantor and pay the interest on the mortgage on the premises if the lease was terminated by the grantor, and the failure to insert such an agreement in the deed or to make a breach thereof a matter of defeasance did not justify a cancellation of the deed.
    2. The grantor in a deed reserving a life estate leased the land to the grantee for a year. It was understood that, the lease would be renewed from year to year if the grantor desired. One of the objects of leasing to the grantee was to secure to the grantor support for life as a member of the grantee’s family, and the right of the grantor to a renewal of the lease with the covenant of support from year to year for her life and at her sole option was an essential part of the agreement, which should have been inserted in the deed, and, under the agreement as inserted in the deed, the grantee could abandon the lease at the end of the year.— Held, that the failure to insert the agreement in the deed was a fatal defect, entitling the grantor to its cancellation.
    3. The court on canceling a deed of land at the suit of the grantor will relieve the grantee from liability on mortgages executed after the execution of the deed pursuant to an agreement between the parties, and will impose other equitable terms.
    Heard on bill, answer, replication and proofs in open court.

      Mr. Charlton A. Raed, for the complainant.

      Mr. JUugenc V. Cooper, for the defendants.
   Emery, V. C.

The main object of the bill in this case is to set aside a deed made by the complainant, Mrs. Tygar, to the defendant Samuel A. Cook, on August 16th, 1906, for lands on Lake Hopatcong, Morris county. This deed for the expressed consideration of "the sum of one dollar and other valuable considerations” conveyed to defendant in fee two lots, reserving, however, to the grantor the full and absolute control of the premises and the rents and profits during her life. The defendant was the son of a cousin of the complainant, but the conveyance of the reversion was not, and was not intended purely as a gift, but was made under the following circumstances: Complainant was the owner of a tract of land on the lake, containing five lots, and on which she had carried on the business of a summer hotel or boarding house, known as the Van Orden Cottage. Several buildings had been erected on the tract, including the main building or boarding house, which had been destroyed by fire a year or more before the deed was made. After the fire, complainant, who was an elderly woman, nearly seventy years of age, desired to rebuild and restore the house in order to have the business continued. She did not desire herself to carry on the business, but did wish to continue to live on the premises, being, as her letters to defendant and others show, much attached to the place and unwilling to sell it and go to live elsewhere. A year or more previous to the deed to defendant she had made an arrangement with another person to take the place and rebuild or aid her in rebuilding the house, she living with them, but this arrangement was not satisfactory and came to an end in the latter part of the year 1905. In the early part of 1906, complainant, in letters to the defendant, suggested his taking the place. One letter, dated April 28th, 1906, asks defendant’s assistance in procuring a loan for her from a building and loan association to rebuild, suggests that if complainant cannot get along, perhaps defendant might like to come and live at the place if he could make it pay, and requests defendant and his wife (who lived in Dover) to come up to see her as she would like to have a talk with them. In another letter, of May 10th, 1906, she requests Cook to get for her from Mr. Neighbour, a lawyer of Dover, her will and a deed, and in this letter says she hopes to rent the place soon, so that she will have less work. Complainant about this time consulted personally with defendant in reference to a lawyer to draft another will, and Mr. Eugene Cooper, of Dover, was recommended by defendant for the purpose, and defendant, at complainant’s request, spoke to Mr. Cooper and received information as to his charges for the service, which was communicated to complainant in a letter dated June 25th, 1906. By appointment with complainant, defendant took Mr. Cooper to complainant’s residence at the lake and left him in consultation with complainant. The result of this interview was not that of drafting another will, but that a proposition was discussed between complainant and Mr. Cooper, as her counsel, apparently,, for the defendant to aid complainant in rebuilding the cottage and then with his wife to take the place permanently and carry on the boarding house business, the complainant living with him as a member of his family during her life. For the purpose of carrying out this general plan, the complainant was to convey to defendant the boarding house lots, reserving a life right, and both were to join in procuring a loan on the premises for rebuilding, and also pajdng some small debts of complainant. This proposition substantially was made to tire defendant after the interview between complainant and Mr. Cooper, but defendant declined to give an answer until after consultation with his wife, and it was not until after an interview between defendant and his wife with the complainant at her residence that the proposal was accepted. This interview was on the Sunday following July 26th, 1906, the date of defendant’s letter, which still held off decision, and made an appointment for a full talk with complainant. As the result of this interview on Sunday, defendant decided to accept the proposal. Mr. Cooper was not present at this interview. The drawing of the necessary papers was left to Mr. Cooper, and so far as appears he had the sole responsibility of protecting the interests of both parties. He now appears as the defendant’s solicitor, and still continuing as his solicitor, is called as his witness against complainant. Mrs. Ty-gar, having had difficulty in getting possession of the premises from the parties with whom she had previously made an arrangement for rebuilding and leasing, was, as Mr. Cooper says, insistent that she should be protected in the future, and he therefore adopted the plan of executing two papers, one the deed conveying the lands, reserving the life right, and the other, an agreement defining the other terms of the bargain, which in-eluded a lease for a year only. This second paper, executed at the same time, recites the execution of the deed and then states its object, as follows:

“And whereas the object of said conveyance is that said Cook would lease the premises of said Tygar and occupy the same with his family and manage the same, and the said Tygar would live with him and his family and all work for the interest of each other and live together as one family, but fearing their intentions may not prove as hoped they bind themselves as follows, to wit,” &c.

Then follow the covenants by which Cook agrees to give Mrs. Tygar a suitable burial at her death, to join with his wife and Mrs. Tygar in erecting the building on the premises for a dwelling and boarding house, and to mortgage the premises to obtain the money for building, and also $458.53 to pay a note of Mrs. Tygar’s. The deed covered only two of the five lots included in the lease, and it wras agreed that if Cook built on the lands not covered by the deed, he should, at the death of Mrs. Tygar, have the right to remove the buildings within five months thereafter. The agreement then provides that in consideration of these and subsequent covenants, Mrs. Tygar leased the five lots for one year from March 1st, 1907, Cook

“to board, lodge, support and maintain and also care for in sickness the said Mary J. Tygar as one of his family, and pay her doctor bills and also to pay her the sum of $15 per month for her own use from March 1st, 1907, during the term hereof.”

The lessee was also to pay the taxes against the property for 1907 and during the term, .and the interest on encumbrances or liens and premiums on fire insurance policies and to keep the braiding insured, and in consideration of the premises agrees “to comply with and perform all the conditions and obligations resting on him as above mentioned for and during the term aforesaid.” No other papers or documents were executed between the parties. The defendant, in the fall of 1906, gave up the business he was engaged in, removed to the premises with his family, aided and supervised the construction of the building and joined with complainant in the execution of mortgages to the amount of $5,383 to raise the necessary funds for rebuilding and paying complainant’s debts. In the spring and summer of 1907 the defendant carried on the boarding house business, complainant living with them.

Disputes arose, principal]}1- between complainant and Mrs. Cook, or her servants, and complainant conceiving that she was not fairly treated or properly cared for, dispossessed defendant by proceedings under the lease, taken before a justice of the peace after the parties had failed to agree on the terms of a new lease from March 1st, 1908. Complainant secured possession in May, 1908, and in October, 1908, fded this bill to set aside the deed. The allegations of the bill upon which the right or claim to set aside the deed is based, are substantially the following: That it was at Cook’s suggestion and tender of assistance and rebuilding that-the negotiations'were commenced; that Cook procured Mr. Cooper as the attorney, and that Cooper suggested Cook as. a proper person to superintend rebuilding the house and conducting the boarding house business and maintaining complainant; that thereupon negotiations with Cook were begun, as the result of which it was agreed that complainant was to convey to Cook the lands and premises, reserving a life right; that Cook and his wife with complainant were to execute the mortgages to raise money for the rebuilding which Cook was to superintend, and that a lease for one year was to be made. These provisions were those actually carried out, but it is alleged in the bill that the agreement between them also was that Cook would furnish a home with comfortable support and maintenance during her life, and that in case Cook failed to keep his agreement, or in case complainant became dissatisfied with Cook’s conduct, complainant should have the right to have the lands reconveved to her by Cook, and all his rights in the lands should cease if any of the terms of the agreement were not performed by Cook, or in case complainant became dissatisfied. These two provisions were not in fact included in either of the two papers signed, and as to this, the allegation of the bill is, that at the time of their execution, Cooper informed her that she was amply protected in her rights as agreed on between Cook and herself, and there were no further terms reduced to writing. As breaches of those agreements complainant alleges that Cook failed to give her a home, that it was impossible for her to live with his family, that he failed to provide proper food, or a comfortable room, and that she was made sick by the abuse of Cook and his family and servants. He has also since Ms removal from the premises failed to pay interest on the mortgages or to provide for her support and maintenance. Complainant says that at the time of the execution of the deed, she believed that the agreement for the defeasance thereof made between her and Cook had been incorporated in the deed, but that she is now advised that this was not the case, but that by the deed Cook will on her death become the absolute owner of the premises in fee-simple, although he has failed to comply with his agreement; that these lands are practically her only means of support, and that she is unable to use them for her support while Cook’s conveyance remains unrevoked. The defendants deny that there were any provisions or conditions agreed on between the parties other than those contained in the deed and agreement executed, or that Cook was to maintain complainant or keep down the interest and taxes if he was not in possession, and further, that the provisions of the deed and lease were fully explained to complainant who understood and was satisfied with them.

So far as relates to the specific charge in the bill, that at the time of the execution of the papers, complainant believed that a provision for defeasance of all Cook’s rights under the deed contained in the papers, the evidence fails to support the charge. Complainant herself is her only witness on this point, and by her own evidence it appears that at the time of the preparation of the deed and agreement she insisted to Cooper (not in Cook’s presence) that the agreement for support and for surrendering Cook’s right should be put in the deed, but that Mr. Cooper said that complainant had full control, and if the Cooks did not treat her right thejr would have to surrender all up, not merely surrender possession. For defendant, Cook and Cooper are sworn, and their evidence is, that it was agreed that the lease should be for a year in order that Mrs. Tyga.r might terminate it if she chose, and that there was no agreement for her support by Cook, or paj'ment of interest or taxes, if Cook did not remain in possession, neither was there any agreement that on terminating the lease, Cook’s rights under the deed were to cease or that he was to reconvey. Cooper also swears that the contingency of complainant’s support, in case of termination of the lease, was talked over between the complainant and himself, and the complainant said that if the house were rebuilt, she could support herself from the rents, and that it was not understood that Cook' was to support her if he did not remain in the house.

After giving due consideration to the fact that the unprofessional and equivocal position of -Mr. Cooper in acting as the solicitor for the defendant whose principal witness he is, seriously affects the credibility of his evidence, I reach the conclusion that the weight of evidence is against complainant’s claim that Cook was to support her and keep down the interest, if his lease was terminated by complainant, and that the complainant’s case on the pleadings and proofs, so far as it depends on the failure to insert such agreement or to make a breach thereof as matter of defeasance of the conveyance, has not been made out. But it was claimed at the hearing that on the proofs complainant was entitled to a rescission of the deed under the bill, upon the ground that the evidence showed that complainant’s interest had not been protected by the insertion in the deed and agreement of other terms that were agreed on between the parties and were necessary for her protection, and that under the papers as drawn and executed, the interests of complainant were disregarded and benefits or rights given to which Cook was not entitled and which were inequitable. The important particular of the agreement finally reached by the parties, which was not put in the deed or agreement as drawn and which would seem to have been necessary for the grantor’s protection in making an absolute conveyance of the reversion, was that the arrangement for leasing from year to year and for defendant’s supporting complainant as a member of his family during the lease, was to be renewed from year to year as long as complainant chose, and was at her option only. •

The recital in the agreement shows clearly that one of the objects of leasing to defendant was to secure complainant’s support for her life, as a member of defendant’s family, and the evidence of Cooper shows that the yearly lease was adopted with the understanding that it was expected to be renewed from year to year, if complainant desired.

There was no agreement or understanding whatever that the lease from year to year, instead of for Mrs. Tygar’s life, was for defendant’s benefit, or that he, after having received the conveyance of the reversion, had the option to abandon the premises and complainant’s support witlj it, at the end of any year. The right to a renewal of the lease with the covenant for support from year to year during her life and at her sole option, -were, as I conclude from the proofs (the recital in the agreement as well as the oral proofs), essential parts of the agreement between the parties which complainant was entitled to have inserted. No such provisions for renewal were inserted either in the deed or the agreement, and the lease as actually drawn gave to Cook as well as Mrs. Tygar the right to abandon the lease at the end of the year and without assigning any cause or reason whatever. That Cook having received the reversion in fee under an agreement .contemplating complainant’s support and maintenance as a member of his family during her life as long as she lived in the leased premises with him, should also have the option of leaving the premises at the end of the year’s lease, would seem to be an unconscionable advantage, and one which should not have been secured to him by the papers executed for the purpose of carrying out the understanding and intention of the parties. Iiis agreement for complainant’s support is, under the lease as executed, limited to the term of the lease. If these provisions relating to complainant’s support should have been contained in the deed or agreement executed, in order that one of the substantial considerations for conveying the reversion should be secured to complainant, then the failure to insert them was a fatal defect and entitled the complainant to relief.

In White v. White (Vice-Chancellor Pitney, 1900), 60 N. J. Eq. (15 Dick.) 104, 115, one of the reasons for setting aside a conveyance made by a father to his son, was that the agreement that the father was to retain the use of the property.during his life was not inserted in the deed. And the fact that the father was allowed to remain in the property did not remedy the fatal defect of the omission in the deed. Nor in this case does the fact that complainant dispossessed defendant cure the defect of omission from the deed or lease itself, for the material question on this point is whether the deed and agreement, as executed, express the full understanding of the parties as to the complainant’s right to support for life; and the fact that the defendant, under the papers as executed, was not obliged to renew the lease except upon terms he agreed upon, gave him g position of substantial advantage, as to continuing complainant’s support for life, which he was not entitled to under the agreement upon which the conveyance was made. The parties did in fact disagree on the terms of the new lease, an'd, under the papers as executed, the complainant’s right to support then ceased.

I conclude that complainant’s rights in reference to support during her life were not protected as they should have been by proper insertions in the deed or agreement, and that the papers were executed by her, under the mistaken assurance that her rights as agreed on were protected. The bill alleges that at the time of the execution of the agreement and deed, she was informed by Cooper that she was amply protected in her rights as agreed on between her and Cook, and the answer admits that “Cooper did explain to her and the said Cook that she was amply protected as agreed upon by her and the said Cook, and as expressed in the said terms and conditions of the said agreement of lease and deed.” Her right to support during her life on the premises, by renewing the lease from year to year, if she chose, was a substantial part of the consideration agreed on for the conveyance of the reversion, and under the authority of White v. White, supra, the omission to insert it entitles complainant to a rescission of the deed and a reconveyance.

This must,.’however, be upon the terms that the complainant relieves the defendant from all liability upon the mortgages, and on settling decree, I will hear counsel as to whether any other equitable terms should be imposed.

The bill set: tip a further claim for accounting, but at the hearing this appeared to be without any foundation for decree.


author: Stevens, Y. C.

text:
    Isaac Gans v. Ethel Gans.
    [Decided May 23d, 1910.]
    1. A default decree of divorce rendered- on service by publication and notice acted on by defendant, a non-resident, who employed an attorney to act, is voidable where the attorney neglected to protect defendant’s interests by failing to answer until after the rendition of the decree.
    2. Where a wife learning'that her husband-has obtained a default decree' of divorce -on the -failure of her attorney to defend, first treated with her husband for a money settlement on the basis of the decree, and subsequently affirmed it by a religious act taken at the instance of her family, ■and finally acted'upon it by invoking the law to punish her husband for having cohabited with her out of lawful wedlock, she could not attack the decree and proceed to set the same aside.
    3. A default decree of divorce in favor of a husband rendered on service by publication and notice will not be set aside -on the ground of public policy merely because the successful party suppressed a written stipulation executed by the parties at the time the wife left. the. husband, where he almost immediately afterwards repudiated it, and. where for some years the wife, with knowledge of the existence of the decree, took no steps to set it'aside, until after sh'e had in various ways acted on it as valid. ■ ■-..-•■

      Mr. Eugene M. Gregory, fox the petitionex.

      Mr. Isaac F. Gold'enhorn, for the defendant.
   Stevens, Y. C.

A decree of divorce in favor of complainant against defendant, Ethel Gans, on the ground of desertion, was made On November 13th, 1902. This decree was entirely regular. Complainant was then a bona ficle resident of this state. Defendant, prior to the commencement of the suit, had been living with her parents in Boston, and jurisdiction was acquired by publication and notice. It is admitted that the notice was not only received, but acted upon. Instructions to defend were sent to a lawyer in Jersey City, who, as the evidence now stands, appears to have neglected his client’s interests. He mailed an answer to the clerk, he thinks in time, but the record shows that it was not filed until March, 1903; that is, three months after the final decree was rendered. No satisfactory explanation of the apparent neglect is given.

In the spring of 1903 the parties appear to have made up their differences. They lived together as man and wife from that time until September, 1907. The complainant says that before they caine together he tqld his wife that he had'obtained, a divorce, and that •he, would_ marry her Again “if she would act right for the period of six months,” or,• as he otherwise expresses fiy “after he had tried her for six monthg,” but that she did not so act. He did, in fact, live with her' for four yea'rs, and during this period they took and gave deeds as man and wife. The wife testifies, on the contrary, that they occasionally cohabited while his suit was progressing; that he did'not tell'her that it was going' Oh, and that she did not positively know that the divorce had been obtained until December, 19Q7, when on an application by.her to the police corift for support thé decree1 was produced. She admits that she had heart]' from a lawyer in Elizabeth, in 19Ó3,' that he had obtained-such a decree,-but she says that on calling her husband’s attention to the matter, he denied its truth. On this question of notice there is considerable evidence on both sides. Whichever way its-weight inclines, it is certain that the wife had definite knowledge of the decree as early as December, 1-907. This application was not made until February 15th, 1910. That is over seven years after the decree was made, and over two years after the wife admits that she was fully informed of it.

The affidavits on both sides show that after the second separation, and after the wife’s failure to obtain relief in the police court, negotiations were begun for a money settlement. The wife says .in her affidavit that she ffiias been either negotiating with her husband for a settlement or planning as best she could proceedings of. some sort against him.” She says further,

“the settlement therein mentioned (she is referring to a letter of one Goldstein) and the $1,000 deal, referred not only to the transfer by her of real estate standing in the name of herself and husband jointly, and to a paymént of money to her in return for a release of rights she would have as his wife in her husband’s real estate, but rights to support as his wife.”

During the course of these negotiations the parties went before a rabbi in Boston, where her parents resided, and obtained what is styled a “Jewish divorce.” The wife says that she consented to this to please her family. The husband says he obtained it at her request, that she might be free to marry again. This so-called divorce was accorded on July 15th, 1908. ' It. is in Hebrew, and among other things, as translated, .it declares that complainant “brought believed witnesses, and he himself signed in his own hand that he had already been long divorced according to law.”

Then follows this somewhat remarkable sequence. In August or September, 1908 — that is, only a month or two after the Jewish divorce was obtained — the. wife went to the prosecuting authorities of Hudson county and applied for a warrant for her husband’s arrest on the criminal charge of living with her. A warrant issued, but her husband could not be found. It is difficult to assign any other motive for this extraordinary conduct on her part than, that, other expedients failing, she was willing, at any cost of self-respect, to compel Gans to.pay her money— money to which she was not, in her then situation, legally entitled.

It appears to me that however willingly the court would, in the beginning, have opened the decree and given the wife an opportunity to be heard, the case as now presented has little to commend it to one’s sympathy, and the power of this court should not be strained to advance it.

The wife, as I have said, had full knowledge of the decree in December, 1907. Having such knowledge, it was her duty to act promptly. Decrees of this sort are voidable and not void. Bish. Mar. & D. § 758e. She was not at liberty to taire first one position and then another, as she might think the one or the other would best-advance her pecuniary interests. It is clear that she has no regard for her husband. In her affidavits she takes pains to blacken his character. So Ear from avoiding the decree when she got definite notice oí it, she-first treated with her husband for a money settlement on the basis of its being in force. Then she affirmed it by a solemn religious act, taken at the instance of her own family; and finally she acted upon it, when she invoked the laws of this state to punish her husband for having cohabited with her out of lawful wedlock. So far as she is concerned, she is not in a position to be.heard.

But it is said that the public welfare is involved, and that without reference to the merits or demerits of the parties, the decree should, on grounds of public policy, be opened, because of the deceit practiced upon the court. It has been well said: “Where is litigation to end, if a. judgment obtained in an action fought 'out adversely between two litigants sui juris and at arm’s length could be set aside by a fresh action on the ground that perjury has been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents * * * had been given ?” Flower v. Lloyd, 10 Ch. Div. 333. The lord justice is speaking of a litigated action, but the principle applies to the case in hand. The alleged deceit is said to have been perpetrated by the suppression, by complainant, of a written agreement to separate, executed at the time the wife left her husband. He says it never took effect. I doubt if he is entitled to the fullest credence, but there is this.significant fact in connection with'what he says on this question. In the agreement it is stipulated that “said Ethel Gans hereby agree to apply for divorce as soon as the law may permit;” and yet we find that within a very short time after the wife went to her parents’ home in Boston and commenced suit in the Massachusetts courts, her husband defended and won on the merits. If the agreement became operative in the first instance, it was thus" almost immediately repudiated. I do not find anything in the case that, on grounds of public policy, requires the court to disturb this decree entered so long ago. It seems to me that to the situation here presented, the remarks of Chancellor Runyon, in Nichols v. Nichols, 25 N. J. Eq. (10 C. E. Gr.) 60, are quite applicable: “The object of this bill,” he says, “is obviously merely alimony. Public policy does not require the intervention of this court between these parties. It rather forbids.”


author: Stevens, V. C.

text:
    William H. Dixon v. Josephine T. Dixon.
    [Decided June 17th, 1910.]
    Where, after the obtaining by a husband of a decree relating to the custody of his children and providing for visits to the husband and wife respectively, the wife obtained in another state a decree of divorce in an action which the husband though notified did not contest, giving her the custody of such children, and both the wife and children are residents of such other state, an order will not be granted by the courts of this state making more precise the original order as to the custody; but the application should he made to the courts of such other state.

      Mr. Richard V. Lmdahury, for the petitioner.

      Mr. Gilbert Collins and Mr. Symonds (of Maine), for the defendant.
   Stevens, V. C.

This is an application to modify an order heretofore made in the case, by making it more precise. The order directs that the two children of petitioner and defendant, whose custody was given to the mother, be sent with their nurse to visit their father- two months in each year; one month during the summer or early autumn at his country home in Pittsfield, Massachusetts, and one month during the winter at his home in Yew York City. The petition alleges that the order has been disobeyed, and it prays that it may more definitely specify when the children shall be sent to visit their father. Under ordinary circumstances, the parties failing to agree upon the times, the order would be made as a matter of course. The motion is resisted, not on the ground that the parties cannot agree on the- time, but on the ground that the order has been superseded altogether by a decree of divorce made by the supreme court of Maine in favor of the wife against the husband, in which decree there is a provision that

“tlie care, custody and support of the children be given to the libellant; either party hereto to have the right to apply to this (the Maine Supreme) court for a modification of so much of this decree as relates to said minor children.”

I have already considered the various phases of this case in three opinions — Dixon v. Dixon, 71 N. J. Eq. (1 Buch.) 281; 72 N. J. Eq. (2 Buch.) 588; Dixon v. Dixon, 76 N. J. Eq. (6 Buch.) 364. In the last, I came to the conclusion that the decree of this court was, notwithstanding the interlocutory order made with respect to the custody of the children, by a' justice of the supreme court of Maine, still hi force, and, under the federal constitution, entitled to full faith and credit. The Maine decree, in so far as it has affected the status of the parties as man and wife, must be regarded by the courts of this state as valid, whatever view the courts of New York, where the defendant has his domicile, m&y, under their law, take of it; but in so far as it is inconsistent with the prior adjudication of this court giving to the father a limited right to his children’s society, it is open to the objection that was successfully made to the interlocutory order. It is not pretended that in the progress of the divorce proceedings such an issue was presented and passed upon as could alone have superseded the prior adjudication of this court.

There is, liowever, a sufficient reason why the present application should he denied. It is that both the mother and the children are now resident in Maine and obedience to any order which this court might make cannot be enforced. In Hope v. Hope, 4 DeG. M. & G. 347, the controversy was over children of a father who was an English subject, and of a mother who, with her children, was actually resident in Eranee. In the course of his opinion, Lord Cranworth says: “Assuming then that neither the circumstances of the infant having been born abroad nor being still abroad affects the jurisdiction, the question remains whether I ought in the present instance to exercise the jurisdiction. There might be cases in which it might be improper that I should attempt to exercise it, as for example, where both the parents should be abroad and there should be no property here, though as I have before observed, I would not, even in such a case, say that I had no jurisdiction if a bill were filed.” This is the very situation presented by the case in hand, except that here the father is not now, and never has been, a citizen of this state, and does not, therefore, stand in the more favorable position of the supposed English father, seeking redress in an English court. The chancellor continues: "I should, in all probability, not make an order, because the parties would not be within my control and they might disobejn I should feel that I was doing no good, but incurring a sort of scandal, as every court does, if it attempts to make an order which it has no power of enforcing.”

The question, as shown by the paragraph quoted, is not one of jurisdiction but of expediency. Viewing it in this light, I cannot fail to see that the court is not in a position to control either father, mother or children. There is no probability that any order which this court might now make, would, at present, be respected by the mother. If I am right in the views that I have expressed on two former occasions, the orders already made are, by the federal constitution, entitled to full faith and credit and can be enforced anywhere within the United States. If they have not been enforced by the Maine tribunals, it is, as I must assume, because they have not been, by an issue properly framed, brought to its attention. Their enforcement has not been sought. The husband, though he had actual notice of the Maine proceeding and of its scope, did not see fit to appear and contest either the wife’s right to a divorce or the wife’s claim to have the sole custody of the children.

Whether had the wife presented a proper issue as to their custody, the decision on that issue would, in the absence of the husband, have been binding upon him in New York, I do not know. Undoubtedly, it would have been binding here, for in this state we recognize, to a limited extent, the right to give extraterritorial notice. The only reason why the Maine proceeding, in so far as it relates to the infants, does not bind here, is that no proper issue was made as to whether there had been such a change in fine sit-nation as it existed on July 24th, 1907 (the time when the last order was made by this court), as between parent and child — not as between husband and wife — as would justify the Maine court in totally depriving the father of his children’s society. Not having been made, the husband has still the’right which the orders of this court gave him. The Maine decree is no bar.

Shall, then, the petitioner- — a citizen of New York — coiné here for relief or go to Maine for relief ? - If he comes here, no substantial relief can be accorded to him. If lie goes to Maine, where his children are, the Maine courts are able to give him, and no doubt will give him, such relief as he is, under existing circumstances, entitled to.

I was at first inclined to think that there could be no objection to making the order asked for. Subsequent consideration has led me to think that to do so would answer no useful purpose. Why seek to limit the Maine tribunal in a particular that had better be left open to the exercise of its discretion? That that tribunal is as capable of doing complete justice to the parties as this court is, goes without saying.

The situation is this: A citizen of New York has obtained a decree as binding in Maine as here. He can only get effective relief upon it in Maine. He will, if he really desires the only thing which this court would be disposed to aid him in obtaining, viz., the society of his children', go to the Maine courts to make his right effective.

Those courts have the right, if the situation has undergone a change since July, 1907, to modify the order of this court, both as respects time and other circumstances.

To attempt to bind them in advance as to the matter of time— a matter peculiarly subject to variation — would be inexpedient and probably futile.

I think the petition should be dismissed, but without costs.


text:
    William J. Henderson et al. v. Frank E. Henderson.
    [Decided July 22d, 1910.]
    1. For some purposes a will speaks from testator’s death, and all property falling fairly within it will pass whether acquired before or after its execution.
    2. “Relations,” as testamentary beneficiaries are relatives, entitled under the statute of distributions, and persons who have married them.
    3. A will reciting that there “are” no debts owing by any relative, did not release a debt to testatrix from her son incurred after the will was executed.

      Mr. Richard Boardman, for the complainants.

      Mr. Francis V. Dobbins, for the defendant.
   Stevens, V. C.

Ettie Henderson died leaving a will by which she disposed of her entire estate, real and personal. After making specific bequests and devises, chiefly to her children and grandchildren, and after nominating Henry Y. Condict and her two sons, William and Francis, executors, she provided as follows:

“In the event of the inability of Mr. H. V. Condict to serve as my executor, I appoint Mr. Walter Condict to serve in his place, and be it understood that no debts are owing by any relative.”

The will charges that after the making of this will her son Frank, the defendant, became indebted to her in the sum of $3,000.

The will was made on December 13th, 1906. The testatrix died in October, 1909. The question is whether the debt contracted by Francis is released by the effect of the words “no debts are owing by any relative.”

The defendant’s contention is that a will speaks as of the time immediately .preceding testator’s death; that, consequently, Mrs. Henderson must be regarded as having, at that time, declared that no debts were owing by any relative, and that 'the effect of this declaration was to discharge all her relatives, and, consequently, her son, from the payment of all or any debts owing by them that would otherwise have been due her estate.

It is no doubt true that a will is for some purposes regarded as speaking from the death. All property fairly falling within the descriptive words will pass whether acquired before or after the making of the will. It is said, that the rule that it so speaks, applies to the effect and operation of the will; to the ascertainment of the property passing by it, but that it does not apply to its construction. Gray v. Hattersley, 50 N. J. Eq. (5 Dick.) 213. It has, aeeordingfy, been held that if the gift be to “my beloved wife,” the bequest is to the wife living when the will was made, not to the second wife living at testator’s decease; that if the bequest be to the parish in which testator is living, it goes to the parish in which testator lived at the time he made his will, and not to the parish into which he has removed and may have been living at the time of his death. Garret v. Niblock, 1 Russ. & M. 629. The rule as to the ademption of specific bequests is another illustration. 1 Jarm. Wills *280. In Smallman v. Goolden, 1 Cox 329, testator gave to his son “all sum and sums of money due to me from him on bond or bonds or any other security,” and Sir Lloyd Kenyon held that he must suppose testator meant to measure the bounty according to the situation at the time of making the will and could not have in contemplation any future sums of money which the son might owe him. He therefore held that the subsequent bond was not included in the bequest. It is true that this case was criticised by Chancellor "Walworth in Van Vechten v. Van Vechten, 8 Paige 104, 116, where the language was, however, more comprehensive, but it seems to have been thought an authority under the old law in Everett v. Everett, 7 Ch. Div. 428, a case coming up under the statute of wills of 1 Victoria which compelled a more rigid construction. In this case, a testator, after reciting that his son was now indebted to him in. various sums of money in respect of advances and that he was desirous that his son should be released and that the securities should be given up, bequeathed to him all the aforesaid moneys and released.him from all claims in respect of said moneys, “and all other moneys due from him.” On these latter words the court of appeals, having regard to the before-mentioned statute, reversed the vice-chancellor and held that it would not be giving effect to testator’s language if it were read as including only debts existing at the date of the will.

In Douglas v. Douglas, Kay 400, Lord Ilatherly, in another case under the same statute, said that a gift of all my stock would pass all stock to which the testator was entitled at his death, but that a gift of all my stock which I have purchased would be confined to stock actually purchased at the date of the will. The will there provided:

“I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland and which money has according to the laws of Scotland, been charged thereon;”

and the decision was, that the exoneration only applied to moneys so charged at the date of the will and not to moneys afterward laid out and charged, and not even to moneys then laid out but afterwards charged. The statute under which this was decided' (1 Viet. ch. 26 § 2Jf) enacted that

‘'every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and, take effect immediately before the death of the testator unless a contrary intention shall appear by the will.”

It has been regarded as imposing a more rigid rule of construction, in respect of personalty bequeathed, than had theretofore prevailed. In re Ord, 12 Ch. Div. 22; In re Portal, 27 Ch. Div. 600. It has not been copied into the legislation of this state; section 24 of the Wills act merely providing that real estate acquired by testator after the making of his will shall pass,' &c., unless a contrary intention be manifest on its face.

In view of the above authorities, it may not be altogether free from doubt whether had testatrix said in so many words that she released all debts that “are” owing to her by any relative, such release would have extended to debts incurred after the will was executed. But testatrix has made no bequest of debts. On the contrary, she has said that no debts were owing. How could she be regarded as intending to release or exonerate that whose existence she expressly denied ? It cannot be argued that the words are not to be taken literally, for the reason that so taken they would not state the fact;, for there is no allegation of any such debts. Taking the words as we find them, they do no more than state that which in the absence of proof to the contrary I must assume was true at the time she was penning her will, and untrue immediately before her death.

Whom she meant by the term “relative” it is hard to say. Where a gift is made to “relations,” courts, from the necessity of the case, give the word an artificial meaning in order to give it any effect at all. They confine it to relatives entitled under the statute of distributions and to persons who have married relatives so entitled. 2 Wms. Ex. *1003. Do the words themselves indicate (for there is no other indication) that when testatrix said on December 13th, 1906, “be it understood that no debts are owing by any relative” what she meant was “I release all debts that may be owing to me at the time of my death by persons entitled under the statute of distributions and by those who have married such persons?” So to hold would indeed be carrying construction to a fantastic limit. The assumptions would be — first, that when she said no debts are owing she meant not then owing but owing when she died; second, that although she said no debts are owing, what she meant was, that if debts should be owing at her death she released them; third, that debts owing by relatives not entitled under the statute of distributions she did not release; or, if this be regarded as too strained, that she released every debtor who might establish relationship to the twentieth or thirtieth degree of consanguinity. I am unwilling to draw from language so simple and so intelligible a series of implications so purely conjectural. Looking at the whole clause, it would seem as if it might have occurred to testatrix at the time she was providing for a substituted executor that it might avoid trouble and inquiry on his part if she should let him know that, at that time, her relatives owed her nothing.


text:
    New York and New Jersey Lubricant Company v. O. W. Young, a corporation, &c.
    [Decided August 8th, 1910.]
    1. The adjective “nonfluid” and the noun “oil,” when used in their proper sense, cannot be exclusively appropriated as a trade-mark since they are merely descriptive.
    2. Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, as to the place where manufactured, or as to the material composing it, or any other material false representation, deprives a person of equitable relief when such trade-mark is infringed, although the act of the infringer was without justification, and although the false article was as good as the true one.
    3. The general rule that one cannot invoke the aid of equity when his trade-mark is infringed, if such trade-mark is intended to defraud the public, is of universal application, and cannot be confined to particular classes of cases.
    4. Where a party sold what was in fact a grease under the trade-mark of “nonfluid oil,” it was a material misrepresentation to the public, such as would prevent equitable relief in case of an infringement of such trademark.
    5. Regardless of whether certain advertisements were only' occasionally put forth misrepresenting to the public that certain grease was “nonfluid oil,” they were sufficient to show an intent to mislead the public by adopting such trade-mark.
    6. Though in a suit for infringement of a trade-mark complainant was denied relief because its trade-mark was a fraud on. the public, yet where respondent was guilty of a similar fraud costs were denied to it.

      Mr. Edward M. Colie, for the complainant.

      Mr. Chandler W. Biker, for the defendant.
   Stevens, V. C.

This is a hill to enjoin the defendant corporation from selling or offering for sale, their lubricating compositions or greases under the name of “Nonfluid oil.”

The bill charges that immediately after its incorporation, in 1896, the complainant began the business of manufacturing and selling lubricants, and that for the purpose of identifying certain lubricating compositions, originated and manufactured by it from similar wares sold by others, on or about March 29th, 1900, it adopted and made use of, and since then has continued to make use of, a certain distinguishing mark or trade name, to wit, the words “Nonfluid oil,” and that it has affixed the same as a label upon its boxes, packages and cans ever since the date named. The evidence sustains this allegation.

The answer denies that the defendant has counterfeited, copied or colorably imitated any trade-mark or name of complainant, .in violation of complainant’s rights, or that in the manner, of placing its name and the name of its goods upon its boxes, it has counterfeited, copied or imitated the manner of placing the name of the complainant upon complainant’s goods or boxes. The evidence does not sustain this averment. In the case of some, at least, of defendant’s cans and packages there is undoubtedly a design to imitate the make-up of complainant’s cans and packages. The principle controversy, however, hinges upon the use by defendant of the words “Nonfluid oil.” As to this, defendant says that the name was employed as a descriptive designation of the goods which it manufactured and sold; that the words composing it are words in general use in the English language, having a definite and well established meaning, and that as such they may be used by anyone who manufactures and sells goods of which the words are properly descriptive. This insistment would, no doubt, be sound if the lubricant that both parties make be, in fact, an oil. The undisputed evidence, however, shows that neither parly manufactures an oil, properly so called. What they do put out is a grease. The two substances are so dissimilar that complainant founds his case upon the admitted difference. Were it not for the dissimilarity, it is conceded that complainant would have no exclusive right, for the reason that neither the descriptive adjective “nonfluid,” nor the noun “oil,” are capable of exclusive appropriation by any single manufacturer, if used in their proper sense.

The complainant in his bill charges that the term “Uonfluid oil” is an arbitrary, fanciful and distinguishing name or trademark, applied by it to lubricating compositions for the first time. It does not tell us, however, wherein it is arbitrary or fanciful. It does not allege that its “lubricating compositions” are really greases and not oils, and that, as applied to these compositions, the name is arbitrary and fanciful and therefore capable of appropriation by the first user. In order to make out its case it had to show this by proof. Standing by themselves, the words do not appear to be either arbitrary or fanciful. They apply to a well-known article of commerce, some of whose varieties are, at ordinary temperatures, solid. Uonfluid, as applied to them, is purely descriptive. On its appearing that complainant’s lubricants were greases, defendant took the ground that the term in its application to such greases was a falsehood calculated to deceive the public, upon which complainant could base no right, even as against defendant, guilty of the same falsehood.

This brings us to the point of the case. Can the complainant have an injunction to protect its use of a label that tells this untruth ?

The law has been settled by courts of the highest authority. In Worden v. California Fig Syrup Co., 187 U. S. 516, the supreme court of the United States, speaking by Mr. Justice Shiras, thus stated it: “When the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in his advertisements and business, be himself guilty of any false or misleading representation; that if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses his right to claim the assistance of a court oi equity; that where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct assertion -which is false, no property can be claimed on it, or, in other words, the right to the exclusive use of it cannot be maintained.”

In Prince Manufacturing Co. v. Prince’s Metallic Paint Co., 135 N. Y. 24, Mr. Justice Andrews said: “Any material misrepresentation in a label or trade-mark as to the person by wdiom the article is manufactured, as to the place where manufactured, or as to the materials composing it, or any other material false representation deprives a party of the right to relief in equity. The courts do not, in such eases, take into consideration the attitude of the defendant, although the defendant’s conduct is without justification. This, in the view of a court of equity, affords no reason for interference. * * * And although the false article is as good as the true one, the privilege of deceiving the public oven for their own benefit is not a legitimate subject of commerce.”

And Lord Westbury, in Leather Cloth Co. v. American Leather Cloth Co., 4 De G. J. & S. 137, said: “When the owrner of a trade-mark applies for an injunction to restrain defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not, in his trade-mark or in the business connected with it, be himself guilty of any false or misleading representation; for if he makes any material false statement in connection with the property he seeks to protect, he loses and very justly, his right to claim the assistance of a court of equity.” The statement of the law, by Lord Westbury, -was approved on appeal by the house of lords. 11 H. L. Cas. 523.

I have cited these passages for the purpose of showing that the rule as laid down b3r courts of the highest authority is of universal application. It is not, either in terms or because of its declared reason, confined to particular classes of cases. The classification suggested by counsel finds no support in the above utterances or in any case to which he has referred me.

There is no such limitation as counsel suggests, to be found in the language of our owm decisions, so far as they have dealt with the subject. In Johnson & Johnson v. Seabury & Johnson, 71 N. J. Eq. (1 Buch.) 750, Mr. Justice Swayze thus expresses himself: “There is no question about the principle that a false representation in a trade-mark will prevent equitable relief for its protection. The cases cited by defendant are, with one exception, cases where the false representation was contained in the trade-mark itself. In such a case it is quite impossible to determine to what extent good will, for which protection is sought, has been created by the false assertion and to afford protection to a trade-mark containing a false representation would perpetuate the falsehood by the decree of the court.” To the same effect is Bear Lithia Springs Co. v. Great Bear Spring Co., 71 N. J. Eq. (1 Buch.) 596. It is manifest that a limitation such as counsel contends for ought not to exist. . The court should be free to deny its aid to every attempt to mislead the public, as to the real character of the thing to be sold.

Counsel, arguing further, deduces the following proposition from the decided ‘cases: “Where an article is marketed under a title which is unusual, self-contradictory, incongruous or for any reason such that the public would not normally take the title in its literal sense, no fraud on the public is committed.” This statement would have, perhaps, to be qualified by what Lord Westbury said in the case above cited: “I cannot receive it as a rule that a plaintiff is not answerable for a falsehood because it may be so gross or palpable as that no one is likely to be deceived by it. If there be a willful false statement, I shall not stop to inquire whether it be too gross to mislead.”

And it would moreover be subject to the proviso that what was “unusual, contradictory and incongruous,” was not also deceptive in a material particular.

The trade names, cited by counsel, that have been upheld, have not in themselves been calculated to mislead. Yo sensible person would imagine that “grape nuts,” as applied to a cereal (Postum Cereal Co. v. American, &c., 109 Fed. Rep. 898), “swan down,” as applied to a complexion powder (Tetlow v. Tappan, 85 Fed. Rep. 774), “tuberose,” as applied to tobacco (Lorillard v. Pepper, 86 Fed. Rep. 956), “cough cherries,” as applied to a confection (Stoughton v. Woodard, 39 Fed. Rep. 902), “elastic,” as applied to wooden book cases (Globe Wernicke Co. v. Brown, 121 Fed. Rep. 185), were anything but fancy names. In Societe Anonyme v. Western Distillery Co., 43 Fed. Rep. 416, the decision was expressly based upon the ground that a label which contained the Latin and French words there passed upon were susceptible of a sensible meaning consistent with the truth and so of the other cases cited by counsel.

On the other hand, Ginter v. Kinney Tobacco Co., 12 Fed. Rep. 782, is a good illustration of the rule in its application to the case in hand. Complainant sought protection for his “straight cut” cigarette. It appeared that the words “straight cut” had a perfectly definite meaning in the trade. They meant that the plant had been so cut and treated as to preserve the fibres long, even, straight and parallel. The defendant was, like the plaintiff, selling a cigarette under the name “straight cut.” In -point of fact neither was using “straight cut” tobacco. Mr. Justice Wallace said: “Complainant now insists that the term was selected and has been used bjr his predecessors and himself as an arbitrary designation of the particular article and that neither his cigarette nor the defendant’s are made of straight cut tobacco. All this, if true, does not help the complainant’s case, but furnishes an additional reason why he should be denied the assistance of a court of equity. Not only has he emploj'ed a name to which he could not acquire an exclusive use, but he has used it in a manner calculated to mislead the public, although perhaps not intentionally on his part.”

Counsel says that the term “Nonfluid oil” is incongruous bizarre, novel, and, in its popular acceptation, a contradiction in terms. Being such, he argues that it can be exclusively appropriated. But in view of the admitted fact that some oils are solid, it does not, on its face, appear to deserve-the epithets applied to it. It would have been novel when solid oils were first discovered, but it is not so now. Taking nothing but the words, the label informs the intending purchaser that what he is buying is an oil and that that oil is solid. Some of complainant’s lubricants are solid and some of them are liquid. If they are liquid, and the purchaser is informed that they are, either by something on the label or in some other way, it is possible to maintain that the words, so applied, are non-descriptive, and therefore fanciful and capable of appropriation, just as, for example, “liquid ice” might be, or as “hole proof,” as applied to stockings, has been adjudged to be. 172 Fed. Rep. 860.

But the material misrepresentation in this case is, under the evidence,, to be found in the word “oil.” Complainant’s product in its liquid form greatly resembles oil and would, by the majority of persons, be mistaken for oil, if complainant so described it. hTow complainant knew that it -was a grease and that it would be so mistaken, and it knew, too, that at the time it adopted it, its competitors were calling their very similar product “grease.” What was its object in misdescribing it, if not deception? By the name alone, complainant was representing to the public that it was furnishing a superior article, an oil for automobile and other lubrication, while its competitors were only able to sell a grease. But it did not stop at the name. It advertised the product, and this is what some of the advertisements say:

“Nonfluid oils are not greases as some have supposed. They are fine mineral oils, so treated as to become partially solidified.”
“Nonfluid oils represent a distinct advance over fluid oils and greases for automobile lubrication. Being nonfluid they do not spatter and drip to waste like fluid oils. * * * Being oils they do not have to be soft-
ened by frictional heat, &c. Caution. Inspired by our success others are offering tallow greases in imitation of nonfluid oils under similar names.”
“We presume it is on this account that certain grease makers, for example, one in Newark, New Jersey, and another in Baltimore, Maryland, have taken advantage of a technical loophole in the trade-mark law to offer for sale ordinary greases which they boldly label ‘Nonfluid oil.’ ”

It is said in. extenuation of the false assertions contained in these extracts that they were only occasionally put forth. Are they any the less material misrepresentations on that account, or do they indicate any the less clearly the purpose of adopting the label?

It would seem plain, therefore, that complainant should be denied relief. Inasmuch as defendant has been guilty of a similar misrepresentation, the Leather Cloth Company Case, supra, is a precedent for- denying it costs.