points of difference between the Scherzer | discrepancy in the dimensions must be made Company's plans and specifications as pre- to correspond to those on file. Shortly afterpared and submitted, and those called for, wards a controversy arose over the character are not only as to length of bascule span and of cofferdams to be used in setting the piers; position of piers, but the additional weight the complainants claiming that steel shells, of the leaves made necessary a general re- which were to permanently inclose the piers, apportionment of dimensions and of materi- could be efficiently utilized, while the engials and a readjustment of appliances to in- neer contended that the specifications compresure a perfect balance. Of these details, hended cofferdams independent of the shells. plans and specifications were to be furnish- The use of the shells would have saved some ed, as evidenced by the official specifications $15,000, and from later developments it seems for the bridge, which required that the bas- that they would have answered the purpose. cule design was to include full power equip- The engineer declined to recede from his poment, adequate to operate both leaves, and sition, and the complainants adhered tenaalso signals, brakes, and all modern safety ciously to their interpretation of the specifidevices, and that "all of these items must be cations. During the entire period of negotiaaccurately and fully described by specifica- tion, some 82 days in all, the complainants tions and shown by plans to be submitted by repeatedly urged the execution of the conthe bidders," including a description of bear- tract, which had been delayed through no ings, machinery parts, and power equipment. fault of theirs, all the time, apparently, stuThis requirement could not be dispensed diously ignoring the engineer's suggestion to with. In Case v. Trenton, 76 N. J. Law, modify their plans and specifications. 696, 74 Atl. 672, the lowest bidder, to whom lence often spells assent, but nowhere here the contract was awarded, failed to give a do I find any intimation that the complaindescription of the properties of asphalt to be ants were willing to entertain a contract modused in the paving of a street and the pro- ified, unless the counties would concede the portions of the several ingredients of the use of the shells as cofferdams, and in fact no wearing surface of the street pavement, legitimate inference can be drawn, other than etc., as demanded by the specification. The that the complainants were willing to bargain Court of Appeals rejected the bid and set only if this concession were made. From this aside the award, holding that: position they did not swerve, and the most that can be said is that the implied promise was upon condition which was not performed. "These omissions seem to be more than mere irregularities which the municipal authorities might waive. In consideration of the present situation, we are not to confine our view to this case, and consider whether the contract with Mr. McGovern is a reasonable one, or as advantageous to the city as any contract which it will be likely to secure. We must consider the public policy which underlies the requirements of competitive bidding. The purpose of the statute requiring competitive bidding is that each bidder, actual or possible, shall be put upon the same footing. The municipal authorities should not be permitted to waive any substantial variance between the conditions under which bids are invited and the proposals submitted. If one bidder is relieved from conforming to the condition which imposes some duty upon him, or lays the ground for holding him to a strict performance of his contract, that bidder is not contracting in fair competition with those bidders who propose to be bound by all the conditions. This is the policy which prevents the modification of specifications after bids have been presented, and the awarding of the contract to one of the bidders based upon such revised specifications." [3,4] The complainants are not estopped from setting up the invalidity of the award (Fairbanks, Morse & Co. v. North Bend), and, as the award of the contract was unlawful, there could be no forfeiture. This result renders it unnecessary to decide whether the complainants implicitly agreed to modify their proposal relative to the bascule span; but, as counsel laid considerable stress upon this question, a brief discussion may serve to reconcile their wide ly divergent views. [5] It was nearly a month after the bids were received that the county engineer of Atlantic county discovered the conflict in the plans and advised the complainants that the Si Forfeiture is also resisted on the ground that the complainants lawfully withdrew their bid before the award was made, and also that they justifiably withdrew, before the award became effective, because of undue delay in awarding the contract. June 9, 1915, at Atlantic City, was fixed as the time and place for receiving the bids. At a meeting of the board of freeholders of Atlantic county, held on that day, a resolution was passed awarding the contract to the complainants, "provided, however, that before such award shall be binding it must be concurred in by the board of chosen freeholders of the county of Burlington." On July 7th following, the board of freeholders of Burlington county resolved to award the contract to the complainants, "subject to the sale of the bonds hereinafter provided for, and subject to the ratification and approval of said contract and of the terms of this resolution by the board of chosen freeholders of the county of Atlantic." A bond issue of $40,000, to defray one-half the cost of the bridge, was authorized to be issued in form as attached to the resolution and to be sold at public auction. On July 14th the Atlantic county board passed a further resolution reciting the foregoing facts, and in which it resolved to accept the terms as set forth in the resolution of the Burlington county freeholders, and authorized the proper officers of the board to enter into a contract with the complainants, subject to approval by the solicitor of the board. The Burlington county bonds were advertised to formal action is cogent proof of ample opportunity for examining the bids, investigating the fitness of bidders, and discharging all other essentials, preparatory to the boards' exercise of their quasi judicial function, and circumscribed the time tacitly agreed upon for the making of the award. While much could be said in criticism of the delay up to that time, further postponement of finality of action was without legal excuse, and the complainants were thence at liberty to withdraw their bid, and any concessions thereafter made by them were matters of grace, subject to such conditions as they deemed fit to impose. It is to be admitted that the vicissitudes of trade are the risks of the bidder, but this hazard has its limitations and in reason could not be prolonged by an award which might or might not have eventuated in a binding contract, depending altogether upon whether one of the counties could raise funds by a sale of its bonds. Bidders did not bargain upon this contin be sold on September 1st, and presumably | time was reached when the two boards were sold on that day. Prospective bidders passed judgment upon the bids and awarded -bondbrokers-questioned the legality of the the contract, provisionally, on July 7th. This proceedings, and a correctional and confirmatory resolution was passed by the Atlantic county board on August 11th. In the meanwhile the price of materials and the wage of labor rose by leaps and bounds, as is well known, owing to the war, and the more favorable period for the doing of the work, within the 200 working days allowed by the specifications, was rapidly passing, when on August 30th, one day before the award auto matically went into effect, the complainants, after almost constantly importuning the counties to accelerate the execution of the contract, withdrew their bid, assigning as reason the nonconformity of their bid with the defendants' requirements, unreasonable delay in awarding the contract, thereby imposing the burdens of increased cost of materials and labor and of the doing of the work during an unfavorable season at an increased cost, and also because the defendants' engineers declined to concede the correctness of the complainants' construction of the specifications concerning the cofferdams. [6] I cannot agree with the proposition ad-gency. It was not a condition precedent to vanced by the complainants' counsel that a successful bidder for public improvements may arbitrarily withdraw his bid at any time before its acceptance and escape with his guaranty against a default; a view which finds expression in a dictum in the opinion [8] The defendants attempt to meet this of the United States Circuit Court for the right to withdraw by asserting that the comNorthern District of New York, in Moffett Co. plainants' delay in withdrawing amounted to v. Rochester, 82 Fed. 255. A competitive bid a consent to an extension of the time for the submitted under statutory privilege and reg- execution of the contract until the bonds ulation is in the nature of an option to the were sold, September 1st. As already obmunicipality, based upon a valuable consid-served, the complainants persisted in their eration, to which the principles of law gov- endeavors to secure the contract; but, as we erning options, generally, are applicable. The consideration passing is the privilege of lidding and the legal assurance to the successful bidder of an award as against all competitors. Such an option pending action consistent with its terms, expressed or implied, is a vested right of contract, of which the municipality cannot be deprived, except perhaps by its consent, and is remediable at law by an action for damages, or enforceable in equity by specific performance, if feasible, or may be summarily dealt with by forfeiture of the penalty prescribed. To sanction any other rule would open the door to fraud, and render wholly abortive the legislative scheme for public competitive bidding. their right to enter into the contract that the counties should be first in funds, as was the case in Hurley v. Trenton, 66 N. J. Law, 538, 49 Atl. 518, and 67 N. J. Law, 350, 51 Atl. 1109. have seen, they, from a very early period in the proceedings, were insistent upon a contract embodying their construction of the specifications regarding the cofferdams. This attitude is prominently reflected in the correspondence between the parties, and in the absence of a willingness on the part of the counties to treat with them on this score it is difficult to see how the complainants' conduct can be construed into a waiver, especially when it is apparent that they entertained no notion to do so, except upon the terms they laid down. [9] We have been considering the right of the complainants to a return of their de posit from a purely legal standpoint. But it [7] It seems to me, however, that the com- is manifest, taking into consideration all of plainants were justified in withdrawing their the elements and circumstances surrounding bid, because of the failure to promptly and the transaction, that they are entitled to redecisively accept it. In other words, the op- lief strictly upon equitable principles. To tion to the counties expired by its own limi- force from them a penalty for the failure to tation. Here there was no specified time for execute a contract which they agreed to acceptance, and in the absence of a fixed peri- undertake in June, the performance of which od it is to be presumed that a reasonable was suspended for nearly three months by time, under the circumstances, was agreed the defendants, and which could then have outlay, would work an oppressive and unconscionable hardship; and, as against the right to equitable relief, the complainants' perseverance to obtain the contract does not militate, because, as before stated, their efforts were bent solely upon securing a contract based upon a favorable construction of the specifications regarding the cofferdams, which would possibly have resulted in a saving sufficient to offset the increased burdens. In fact, the complainants abandoned the undertaking only after a soaring of prices, during a long period of inaction on the part of the defendants, which forecast a heavy loss, and then only after the counties refused to yield their construction, whereby the losses might have been retrieved. [10] That a court of equity has jurisdiction to relieve from the enforcement of a forfeiture on legal or equitable grounds is undoubted. Barlow v. Jones, 87 Atl. 649. The complainants are entitled to a decree for $5,000, with interest from November 10, 1915, the date when the forfeiture was enforced and the check cashed, and also costs of suit. (87 N. J. Eq. 375) EAST RUTHERFORD SAVINGS, LOAN & 1. HUSBAND AND WIFE 492 (8)-GIFTS EVIDENCE-MATERIALITY. In suit by a savings, loan, and building association against a widow and her deceased husband's executor to determine title to shares of stock in the association, evidence that the widow once went out of the room where she and her husband and the witness were engaged in conversation about building and loan shares, and almost immediately returned, and put some thing in the witness' hand, and closed it over, and asked how she felt having $26,000 in her hand, was admissible to show that the widow had the certificates for the shares in her possession. having such an interest as permitted him to hold and manage the joint property, and delivery to him alone being a delivery to himself and wife. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 251, 257.] 4. GIFTS 17-DELIVERY-JOINT TENANTS AND TENANTS IN COMMON. Delivery of a gift to one of two joint tenants is a delivery to both, which is also true of tenants in common, where the possession of one is the possession of all, the rule with respect to realty, and, other things being equal, also with respect to personalty. [Ed. Note. For other cases, see Gifts, Cent. Dig. 88 28- 42.] 5. WITNESSES COMPETENCY TRANSACTIONS WITH DECEDENT-EVIDENCE -STATUTE. 144(8) In suit between a savings, loan, and building association and a widow and her deceased husband's executor to determine title to shares of stock in the association, the fourth section of the Evidence Act precluded the widow from book came to her from her husband. stating that possession of the shares and pass [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 635.] 6. HUSBAND AND WIFE 49% (5)—GIFTS— VALIDITY ATTEMPTED TESTAMENTARY DISPOSITION. A husband's gift to his wife of a share in shares in a building and loan association, by surrendering old certificates and an old passbook for installment shares, and having new ones issued in the joint names of himself and his wife, with provision for survivorship, was not void as an attempted testamentary disposition of the property, since, if a vested interest is created by testator in his lifetime, such vested interest is valid, notwithstanding the will and all the requirements of law touching the testamentary disposition of the property. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 252.] Appeal from Court of Chancery. Action between the East Rutherford Sav ings, Loan & Building Association and Margaret Stewart McKenzie and others. From a decree for the named defendant, both parties appeal. Affirmed. The following is the opinior of Howell, [Ed. Note.-For other cases, see Husband and V. C.: Wife, Cent. Dig. § 254.] 2. GIFTS 4-DELIVERY. To complete a gift inter vivos, there must be a donative intention, a delivery of the gift, or what amounts to a delivery, and the donor must rid himself of all control over the subject-mat ter. [Ed. Note. For other cases, see Gifts, Cent. Dig. §§ 3, 17.] 3. HUSBAND AND WIFE 49% (3)-GIFTSCORPORATE STOCK-INTENTION AND DELIV ERY. Where the president of a building and loan association, a man of large business affairs, caused old certificates of stock in the association and an old passbook for installment shares to be surrendered, and new ones issued in the joint names of himself and his wife, with provision for survivorship, himself taking possession of the shares and book, there was a complete gift of a share in the property to the wife, and title vested in husband and wife as joint tenants when he surrendered the old certificates, and on his death the wife became entitled to the property by right of survivorship; the husband This suit was brought by the East Ruther ford Savings, Loan & Building Association against Margaret Stewart McKenzie, the widow, and Henry M. Ladd, the executor of the will, of William McKenzie, deceased, for the purpose of determining the title to some shares of stock of the complainant corporation which were claimed by both the widow and the ex ecutor. What is claimed to be the evidence of the ownership of the shares is on deposit with the clerk of this court, and consists of certificates of shares of stock and a passbook in which the account between the corporation and the shareholder was kept. A decree of interpleader has passed, and the contending parties have filed their claims; and the cause now comes on for hearing and a settlement of the title to the shares in question. The facts are these: On May 12, 1913, and for a long time prior thereto, William McKenzie, the decedent, owned 200 shares of full-paid stock of the complainant corporation, the par value thereof being $100 per share, and Mrs. McKenzie owned 60 shares thereof, for which certificates had been issued to them respectively by the corporation, and the shares stood in their names respectively on its books. At the same time Mr. McKenzie was the owner of 500 shares of the same stock which were not fully paid up. These shares were represented by a passbook numbered 156, in which was kept an account of all the deposits and withdrawals and exhibiting the balance to the credit of the shares on the company's books. There had been paid on account of these shares something over $48,000. In addition thereto Mrs. McKenzie owned 100 shares of the stock of the corporation which were redeemed by the corporation during the lifetime of Mr. McKenzie, so that this block of stock is not in controversy. Since the beginning of the suit the 60 shares of full-paid stock owned by Mrs. McKenzie have been surrendered and released to her by the executor, so that there remains in controversy 200 shares of the full-paid stock and 500 shares of the installment stock, having an aggregate value of about $75,000. On the date last mentioned, May 12, 1913, Mr. and Mrs. McKenzie severally surrendered to the corporation all the said certificates and the passbook No. 156, and at the same time made application for new certificates and a new passbook by signing their names to cards prepared by the corporation for the purpose. The cards so deposited with the passbook No. 156 read as follows: "Date, May 12, 1913. Book No. 156. I hereby make application for 500 installment shares in the East Rutherford Savings, Loan & Building Association, and agree to abide by its constitution, copy of which I have received. Signature, Wm. McKenzie. Residence, Carlton Hill, N. J. Married. Wife's name, Margaret Stewart McKenzie." The form of application for the other block of the shares was in the same form; the only changes being made necessary by the slightly varying subject-matter. On the reverse side of each of the said cards was indorsed a statement of which the following is a copy: "The shares in our joint names are payable to either or both and to the survivor on the death of the other. Wm. McKenzie. Margaret Stewart McKenzie." At the time the new certificates for the shares were issued Mr. McKenzie gave directions that they should be issued as follows: The new certificates to Mrs. McKenzie were issued to "Margaret Stewart and/or William McKenzie." And the certificates which were issued to take the place of the ones that had been surrendered by Mr. McKenzie were issued to "William and/or Margaret Stewart McKenzie." The proper entries were made on the books of the corporation to effectuate the purposes of the surrender of the old evidences of ownership and the issue of the new ones. All this took place on May 12, 1913, and when the transaction was finished Mr. McKenzie went from the office of the complainant corporation having in his possession all the certificates and the passbook, representing 200 shares of the full-paid stock and 500 shares of the installment stock of the said corporation. We now lose sight of the certificates and passbook in question until June 2, 1913. In the year 1907, long prior to any controversy over this property, Mr. and Mrs. McKenzie rented a safe deposit box at the store of Tiffany & Co., in New York, in the names of both. A year or so later the lock on the original box became out of order and another box numbered 630 was substituted. There was delivered at that time to Mrs. McKenzie two large keys for the outside door of the safe deposit box and two small keys for the interior tin box. It appears by the records of Tiffany & Co. that no one ever claimed or had access to this box (to either the original or the substituted box) except Mrs. McKenzie. She kept in it her individual personal property, and, as I understand the evidence, only her property was ever placed in that box. She continuued to rent the box in question from that time until after the beginning of this suit, and she says that, the certificates for the 200 shares having come into her possession, she deposited them in the Tiffany box on June 2, 1913, and that they remained there until they were taken out by her to be deposited with the clerk of this court under an order made in this cause for that purpose. This is the complete history of the custody of the shares so far as is disclosed by the evidence, with the single exception that according to the evidence of Miss Guy, on June 1, 1913, Mrs. McKenzie went out of the room where she and Mr. McKenzie and Miss Guy were engaged in conversation about building and loan shares and almost immediately returned and put something in Miss Guy's hand and closed it over and said "How do you feel having $26,000 in your hand?" There was considerable discussion over the admissibility of this evidence, but it was finally admitted, and while there is no direct evidence that it was the certificates for the shares that was put in Miss Guy's hands, still it is stated by Mrs. McKenzie that what she had in her hand was the shares, whence comes the argument that on that day she had the certificates for the shares in her possession. The evidence was clearly admissible. [1] The history of the passbook which represented the 500 shares of installment stock is somewhat different. Mrs. McKenzie says that that passbook came into her possession and that she kept it from May 12, 1913, down until within a few days of Mr. McKenzie's death in a drawer in a chiffonier in her bedroom under lock and key, and that a few days before Mr. McKenzie's death the drawer containing the passbook was surreptitiously opened and the passbook removed therefrom, together with the larke key fitting into the lock of the outer door of the Tiffany safe deposit box. When she discovered it she instituted a search, and found the small key to the inside box on the floor of the room in which the chiffonier was; the large key and the passbook were found in Mr. MeKenzie's safe at the mill when the safe was opened after his death. Mrs. McKenzie insists that the surrender of the old certificates and passbook to the complainant corporation, and the issue of the new certificate and the new passbook in the joint names of the husband and wife with the formula contained on the reverse side of the application cards, amounts to and is a consummated gift, and a settlement of the property on her to the extent of a joint ownership with the right of survivorship, and that upon the death of her husband she takes as survivor. [2, 3] The law governing the case has been illustrated by so many cases in this state and is so well understood that it is unnecessary to cite authorities. There must be a donative intention, a delivery of the gift, or what amounts to a delivery, and the donor must rid himself of all control over the subject-matter. There can hardly be any doubt but that Mr. McKenzie intended to place the property in the joint names of himself and his wife. He was a man of large business affairs, and was at the time conducting successfully a large business in this state. He was president of the building and loan association with whose shares he was dealing. He was evidently a man of strong will, large experience, and he undoubtedly knew what he was doing when he caused the old certificates and the old passbook to be surrendered and new ones issued in the joint names of himself and his wife. So far as appears, he intended this to be a permanent disposition of the property, because nowhere in the evidence is there any intimation that it was done for a temporary purpose. On the contrary, according to the testimony of Mrs. Butland, he seems to have transferred the property to his wife permanently. I think there likewise was a delivery of the subject-matter of the gift within the requirements of the law on the subject. I find no authorities defining what is requisite for a delivery in the case of shares issued to joint tenants. Neither has the diligence of counsel been otherwise rewarded, and I suppose, therefore, we are remitted to the rule that the delivery must be such as the subject matter of the gift is most capable of. [4] A delivery to one of two joint tenants must in the nature of things be a delivery to both. This would undoubtedly be true of tenants in common where it is the undoubted rule that the possession of one is the possession of all. That is undoubtedly the rule with respect to real estate (Foulke v. Bond, 12 Vr. 527), and, other things being equal, the same rule would apply to personal property. According to the testimony of Mrs. McKenzie, the certificates of stock and the book came into her possession some time between May 12 and June 1, 1913. [5] The fourth section of the Evidence Act precluded her from stating that possession came to her from her husband, and therefore we must say that it does not appear how the property got into her possession. I do not think that the court can assume that it came into her possession unlawfully; it would preferably infer that the husband intended to make a settlement upon her, and that she came into possession of the property in pursuance of that arrangement and in a lawful manner. It was supposed by counsel for the executor at the argument that the certificates and the passbook did not come into Mrs. McKenzie's possession until a few days prior to his death, when she sent the witness Widows to the mill for money and for the brown envelope, which she says contained only Mr. McKenzie's will. But this supposition on the part of the executor is a mere supposition; there are no facts whatever to support it, nor any set of circumstances from which corroboration can be obtained. I am therefore constrained to reject the argument so made upon the ground that it appears to me to have no foundation in fact. that there had been no actual physical delivery of the evidences of the property to Mrs. McKenzie, Mr. McKenzie as joint tenant with the right of survivorship had such an interest in his right of survivorship as permitted him to hold and manage the joint property to the best advantage of all concerned. I am therefore of opinion that by virtue of the transaction above recited the title to the said shares and passbook, and the fund represented by them vested in Mr. and Mrs. McKenzie as joint tenants on May 12, 1913, and that upon the death of Mr. McKenzie Mrs. McKenzie became entitled to the property by the right of survivorship, and I will advise a decree to that effect. The decree will be made without costs. Lindabury, Depue & Faulks, of Newark, for appellant. Collins & Corbin, of Jersey City, for appellees. (Supreme Judicial Court of Maine. June 6, CRIMINAL LAW 1001-Suspension of SEN- Under Rey. St. 1916, c. 137, § 12, authorizing courts to suspend sentences and place offenders on probation, and providing that if the defendant violates the terms of his probation the court The two objections to Mrs. McKenzie's claim may decree the probation ended, and either imurged by the executor are: (1) That the trans- pose the sentence if the cause has been continuaction amounted to a testamentary dispositioned for sentence, or, in other cases, order the reof the property and was void because it was not spondent to forthwith comply with the original made in accordance with the requirements of sentence, where the court ended probation in a the statute of wills; and (2) that, if the act case where sentence had already been imposed, which was performed by Mr. McKenzie was in- it should have committed defendant at once untended as a gift inter vivos, it failed because he der the sentence, and had no authority to direct retained the actual physical possession of the that mittimus should not issue until the expiraevidences of the subject-matter of the gift, to tion of another sentence, which defendant was then serving. wit, the certificate and the passbook. [Ed. Note.-For other cases, Law, Cent. Dig. §§ 2554-2559.] see Criminal Exceptions from Superior Court, Kennebec County, at Law. Edward Jenness was convicted of the unlawful possession of intoxicating liquors. On exceptions to the court's order revoking a suspension of sentence and directing mittimus to issue at the expiration of another sentence. Exceptions sustained. Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. [6] I think the first objection is without substantial foundation. The argument against the executor's position is this. The testamentary disposition of property is one which is intended to take effect at or after the death of the testator. If a vested interest is created in his lifetime, that vested interest is valid, notwithstanding the will and all the requirements of law touching the testamentary disposition of property. The only valid objection to gifts or attempted gifts upon the ground of lack of testamentary form lies in the fact that the interest dealt with is an interest which does not vest until after the death of the testator. Here, if any interest passed to Mrs. McKenzie by virtue of the transaction appearing in the evidence, it passed on May 12, 1913, nearly a year before the death of Mr. Mc Kenzie, and not until that event did her full right accrue. It is the ordinary case of the present vesting of an interest to be enjoyed at some time in the future. The second objection, viz. the lack of delivery, has already been dealt with; SAVAGE, C. J. At the January term, but there remains to be added a word on the 1917, of the superior court for Kennebec point of the donor's renunciation of all control county, the respondent was tried and convictover the property. It is undoubtedly true that the changing of the title to the shares from in- ed for maintaining a common nuisance, and dividual ownership to joint ownership effected was sentenced to pay a fine, and in default of no change whatever in the manner in which the payment to suffer imprisonment for the term parties to the transaction dealt with the shares. Mr. McKenzie remained president of the buildof 10 months. His exceptions taken in the ing and loan association, and to all outward apcourse of the trial were afterwards overpearances there was no change. Even supposing ruled for want of prosecution, and in March, Burleigh Martin and Benedict F. Maher, both of Augusta, for respondent. |