22 on the map, did not contain any express | joined in by her while she was a married worestriction or covenant, on the part of the man and while holding an estate in entirety grantors, that the adjoining lots should be with her husband; and that, in the absence sold as abutting lots, as shown on the map. of any deed or conveyance imposing the equiIt did, however, contain express restrictions table burden or restrictions on her remaining as to the character and use of the building lands, she is not, as the owner of the entire to be erected by complainant upon the lot estate after her husband's death, bound by conveyed, its distance from the curb line, its such plan made during the coverture and durcost, and also contained a covenant on being the continuance of the estate by the enhalf of the husband (in which the wife did not join) that no stable should be erected or placed on the lands lying south of and adjoining the lots conveyed (being the abutting lots) within 40 feet of the dwelling house to be erected on the premises conveyed. The wife herself made no express covenant by the deed in relation to the adjoining lots. Complainant's predecessor in title, as her bill states, refused to accept this deed, because she desired further and more explicit assurances that the building plan or scheme would be carried on in respect to the lot con'veyed being an abutting lot, and thereupon Mr. Sanford wrote the following letter: "In regard to the sale of lot 22 on map of my property (being complainant's lot) in answer to your request of me to my intentions in regard to my other property lying between the lot conveyed by me to you and Clinton avenue (the abutting lots), state that my intention is to sell all my property under restrictions, and the lots lying between your lot and Clinton avenue, in two lots or plots only, and if a stable be allowed on either of said lots that the same be placed on the dividing or central line of the lots and at least 40 feet from any dwelling house erected by you." tirety. [1] The Married Women's Act (Compiled Stats. p. 3226, § 5), makes the contracts of a married woman enforceable in equity as if she were a feme sole, but the subsequent section of the same act (Id. p. 3237, § 14) qualifies the effect of this section by providing that it shall not enable a married woman to execute any conveyance of her real estate or any instrument incumbering the same, without her husband's joining therein, as heretofore. The husband, in the deed conveying complainant's lot, entered into an express covenant restricting the character and use of the adjoining lots, but in this covenant the wife did not join, nor did the covenant entered into by the husband expressly restrict the sale as an adjoining lot, or the erection of any building other than a stable within 40 feet of the dwelling house to be erected on the purchaser's lot. The husband did, however, by his letter set out in the bill, impliedly, if not expressly, agree that the lots in question should be abutting lots, and procured the sale and the acceptance of the deed for the purpose of erecting a dwelling house, on the faith of this assurance. It is not claimed that the wife's estate after her husband's death is bound by this letter as a contract on her part, and, under the decisions, it could not be incumbered by the husband's sole agreement. Washburn v. Burns, 34 N. J. Law, 18; Servis v. Dorn, 76 N. J. Eq. 241, 76 Atl. 246 (Walker, V. C., 1909); 2 Kent's Comm. 133. It is claimed, however, that she is bound in equity to observe these restrictions by reason of the general building plan This letter was not signed by Mrs. Sanford, who has survived her husband, and is now the sole owner of the unsold portions of the tract. Since her husband's death, she has, as the bill alleges, repudiated any obligation to observe the assurances of the letter in reference to the method of sale of the lots, and has (among other acts) offered the rear portion of the lots abutting on complainant's lot for sale as a single lot fronting on the same street with complainant, and as an adjoining lot. If this change should be carried out and a dwelling be erected adjoining com-imposed and adopted by both of them in conplainant's lot, it would deprive complainant of certain advantages of light, air, and access which she claims the right to enjoy as the owner of a residence on abutting lots. The bill is filed to establish and enforce the restriction claimed to have been imposed by the owners on the sale of these Clinton avenue lots by the general building plan, as declared and announced by the husband and made in connection with the sale by reference to the map, and to require these adjoining lots to be sold as abutting lots. A motion to strike out the bill for what of equity is made, and the reason mainly relied on at the argument is that no contract or agreement, in reference to the sale of the lots as abutting lots, enforceable against Mrs. Sanford, appears in the bill. It is laimed that the alleged building plan set out in the bill appears to have been made or nection with the map referred to in the deed, which showed the lots as abutting lots and the representations relative thereto at the time of the purchase. [2] Restrictions under a general plan adopted by the owner for the purpose of selling lots may in equity be imposed upon lands of the owner, extending beyond the express restrictions contained in the deeds to a purchaser, and on the doctrine of implied covenants. Lennig v. Ocean City Association, 41 N. J. Eq. 606, 608, 7 Atl. 491, 56 Am. Rep. 16 (Errs. & App.); Herold v. Columbia Investment Co., 72 N. J. Eq. 857, 860, 67 Atl. 607, 14 L. R. A. (N. S.) 1067, 129 Am. St. Rep. 718, 16 Ann. Cas. 580 (Errs. & App. 1907); Tallmadge v. East River Bank, 26 N. Y. 105 (1862). In this case (heard as on demurrer) the imposition of the restriction on the sale of the corner lots by the general plan, in conpection with the map, and the special representations at the time of the sale must be taken as admitted. But as it sufficiently appears by the bill that these restrictions on the adjoining lots, now solely owned by the defendant, were not imposed by a conveyance or instrument in which her husband joined, and which was acknowledged by the wife as a deed, the question is whether the wife's contracts, representations, or acts of other kinds imposing such restrictions are not within the exception of the fourteenth section. [3] In my judgment they are not, for the reason that this provision of the fourteenth section was, I think, one which related only to the character of conveyances and instruments which were intended to be the means employed for conveying or incumbering the legal or equitable title of a married woman in the lands, and to prescribe the formalities for such conveyance or instrument, if made. It was not intended, in my judgment, to restrict the power of the wife, under the fifth section, to enter into such obligations and contracts, express or implied, as would be enforced by a court of equity, independent of their being created by a conveyance or other instrument. which would have been binding on her as a feme sole, and which may be enforced without requiring any conveyance or other instrument. The motion to strike out must be denied, and the bill should be answered. (83 N. J. Eq. 472) HARRIS et al. v. PEARSALL. (Court of Chancery of New Jersey. Aug. 31, 1914.) 1. MORTGAGES (§ 318*) -RELEASE-CovenantS -ENFORCEMENT. Where a mortgage provided that any per son acquiring 2,500 square feet of land covered might at any time tender the money and have the benefit of the clause for release of such porcovenant on the part of the mortgagee to retion, such provision constituted a continuing lease to any purchaser of 2,500 square feet or more the amount so purchased on tendering the proportionate part of the mortgage debt. Cent. Dig. 88 956-961; Dec. Dig. § 318.*] [Ed. Note. For other cases, see Mortgages, 2. SPECIFIC PERFORMANCE (§ 134*)-COSTS. Where suit was instituted to compel specific performance of a mortgagee's covenant to release parts of the property on tender of a proportionate amount of the mortgage debt, the formance and not a bill to redeem, and defendbill would be regarded as a suit for specific perant having answered denying complainant's right to a release, and been cast, costs would not be awarded to either party. [4] Had the defendant, as a feme sole, imposed the plan and entered into the restric-formance, Cent. Dig. § 441; Dec. Dig. § 134.*] [Ed. Note.-For other cases, see Specific Pertions alleged in the bill, there would be no question of the right of a court of equity Bill by Walter J. Harris and another to enforce the restrictions by injunction, in- against Leigh M. Pearsall, for specific perdependent of any conveyance or other instru-formance. Decree for complainants. T. A. Spraggins, of Jersey City, for complainants. Lloyd Thompson, of Westfield, for defendant. STEVENSON, V. C. (orally). I shall dispose of this case without regard to technicalities. There are a number of technical questions which arise in the case. We have two parties suing as complainants, whose interests are entirely distinct. No objection has been made to the bill on the ground of multifariousness or misjoinder, and this is the sort of a case which very conveniently can be brought in that way, although an accurate analysis of the case would disclose two separate causes of action, which do not corelate. There is no difficulty in making a decree which covers the cases of both of these parties complainant as to their respective lots. ment creating them, and in my judgment the constructing of the two sections together, as applied to the facts in the present case, is that the wife's contracts or obligations, which relate to lands which she owns or in which she has an interest, are enforceable in equity to the same extent as if she were a feme sole, with the qualification that if, as against a feme sole, the creation or enforcement of such contracts requires a conveyance or other instrument, then, in the case of a married woman, this conveyance or instru'ment must be executed with her husband as neretofore, otherwise it cannot be created or enforced. But where a feme sole in equity, without a conveyance or other instrument, would be required by injunction to specifically perform a contract, and this performance does not require the execution of a conveyance or other instrument, then a married woman in similar circumstances may be required to perform the contract. This construction prevents any decree for specific performance of a contract for conveyances of land by a married woman in which the hus band did not join, as was held by V. C. Stevens in Corby v. Drew, 55 N. J. Eq. 387, 391, 36 Atl. 827 (1897), but does not prevent the enforcement by this court by injunction of restrictions as to her lands under a building plan, made by her as a married woman, [1] I shall construe the bill, not as a bill to quiet title, but as a bill to redeem, or as a bill to compel the specific performance of the covenant contained in the mortgage, and my conclusion is that this clause in the mortgage is not limited at all to any period, is permanently attached to the mortgage, and follows it as long as the mortgage exists, and that any person who acquires 2,500 square feet of land covered by that mortgage may at any time before the mortgage comes due, or afterwards, come forward and tender the money and have the benefit of the clause for a release, contained in the mortgage. This is not a new question in my mind. I have had occasion to consider it heretofore, and while there is no reported case that I know of where the question has been discussed or decided in this state, without any authority to the contrary, I think it is the duty of the court to take the language of the covenant precisely as it reads. | rate of $1,500 per month on the first section, $600 per month on the second section, and $650 stipulated to be the true value of the use of the per month on the third section, which sum was land to the board of freeholders and the true damages it would sustain by such delay, which the board was authorized to retain out of any moneys due or to become due to the contractor. Held, that the damages provided for were liquidated damages, and not a penalty. [Ed. Note.-For other cases, see Damages. Cent. Dig. §§ 157-163; Dec. Dig. § 78.*] There is nothing in the mortgage which in- 2. CONTRACTS (§ 300*)-PERFORMANCE-DEdicates that that covenant was to be operaLAY-NOTICE. Where three contracts were entered into tive only while the mortgage remained out- between defendant board of freeholders of a standing and not due. The language is gen-county and a contractor for the construction of eral, and in my judgment creates an absolute, permanent right, and practically has the effect of distributing the mortgage through the tract, very much as if a separate mortgage was given on every 2,500 square feet. Of course that is not an accurate statement, because, under the terms of this covenant, a man might have 3,500 square feet, and, by tendering the right amount, would be entitled to his release. While the decree will give the complainants releases upon their payment of the amount, according to the scale fixed by the mortgage, it is very clear that they are not entitled to any costs. They have not proved that they made any tender. [2] If this is to be regarded as a bill to redeem, then, under the old English rule, costs have to be paid by the complainant, not by the defendant. But that rule grew out of a state of affairs which does not exist, in my judgment, in this country, and I do not think the American courts have enforced it; it has not been declared to be a rule of practice in New Jersey. Moreover, this bill is more in the nature of a bill for the specific performance of the covenant contained in the mortgage. In my judgment the complainant is not entitled to any costs, and, if the defendant had not come in with an answer denying the right of the complainant to a release, I think the decree should award costs to the defendant; but, inasmuch as the defendant filed an answer denying the right of the complainants to any release at all, the decree will not award the defendant any costs. There will be no costs allowed to either party. (83 N. J. Eq. 539) a viaduct, and each provided that the board or en, Consolidated actions by the McClintic Marshall Construction Company, William B. Waldo, and Edmund B. Vanderbilt and others against the Board of Chosen Freeholders of Hudson County and others. Judgment for defendants. Cortlandt and Wayne Parker, for complainant McClintic Marshall Const. Co. Randolph Perkins, of Jersey City, and Frank M. Patterson, of New York City, for complainant William B. Waldo and his trustee. Thomas G. Haight and James J. Murphy, both of Jersey City, for defendant Board of Chosen Freeholders of Hudson County. Joseph S. Parry, of Hoboken, for Edmund B. Vanderbilt and Henry H. Vanderbilt, executors of the estate of Jacob Vanderbilt, deceased. Joseph F. Autenrieth, of Jersey City, for Robert W. Hunt Co. Theodore Rurode, of Jersey City, for Mack Mfg. Co. Hudspeth, Rysdyk & Garrison, of Jersey City, for Citizens' Nat. Bank of Toranda and Mechanics' Bank of Groton. LEWIS, V. C. These actions have been consolidated. They were brought under the "act to secure the payment of laborers, mechanics, merchants, traders and persons em MCCLINTIC MARSHALL CONST. CO. ployed upon or furnishing materials toward BOARD OF CHOSEN FREEHOLDERS the performing of any work in public improvements in cities, towns, townships and other municipalities in this state," approved (Court of Chancery of New Jersey. Sept. 8, March 30, 1892, and by the decision in the 1914.) 1. DAMAGES (§ 78*) - BREACH OF CONSTRUCTION CONTRACT-DELAY-LIQUIDATED DAMAGES OR PENALTY. A contract for the construction of a steel and concrete viaduct provided that the contracttor should pay the board of freeholders of the county for delay in completing the work, if any, beyond the time fixed for completion at the Court of Errors and Appeals in this state in the case of "Delafield Construction Co. v. James R. Sayre, Jr., et al., 60 N. J. Law, 449, 38 Atl. 666," such actions must be brought in the Court of Chancery. By stipulation of counsel, the question of damages has been submitted to this court: For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep r Indexes 91 A.-56 counsel of the respective parties having reached an agreement among themselves in regard to the other questions involved in the suits. greater or less amounts or quantities than those mentioned and set forth in the engineer's estimate, then the said time will be increased or diminished as much as the engineer shall deem just and reasonable and fairly proportionate to the amount of said increase or diminution." The suits are brought for the purpose of obtaining money alleged to be due to the various complainants for work done and maIt appears that the contractor, which was terials furnished in the construction of a then the Owego Bridge Company, was ordermunicipal improvement, known as the "Four-ed to begin work on September 19, 1907, at teenth street viaduct." This structure was the intersection of the West Shore Railroad erected under three separate contracts, which and Fourteenth street, Hoboken. The comwere entered into between the Owego Bridge munication containing this order is dated Company, a corporation, and the board of September 5, 1907, and is signed by the enchosen freeholders of the county of Hudson, gineer. This communication was acknowlin June, 1907. For the purpose of erection, edged on September 6, 1907, by the Owego the viaduct was divided into three sections, Bridge Company. The place which was desand a separate contract was entered into for ignated to begin the work was on section 1. each section. The viaduct is built in the On September 27, 1907, the Owego Bridge shape of the letter "Y," the first section ex- Company wrote to the engineer, as follows: tending from Willow avenue, Hoboken, to the point where the two branches of the "Y" separate; the second section is the projection on the left; and the third section is the projection on the right. The contracts were subsequently assigned by the Owego Bridge Company to the Syracuse Bridge Company, one of the defendants in these actions, this being done with the consent of the board of freeholders, and the Syracuse Bridge Company took upon itself the fulfillment of all the duties and obligations contained in the original contract. The complainants and the other defendants are subcontractors. The McClintic Marshall Construction Company had the subcontract for the steel work; William B. Waldo had the subcontract for the concrete, paving, excavation, etc., and the other parties various other works. The first and second sections were completed on June 1, 1912, and the third section on November 7, 1912. The county seeks to deduct, from the moneys which would otherwise be due, damages for delay in completion, which is resisted by the other parties to the suit. Each of the contracts provides (paragraph D, p. 54, of printed book): "That the contractor shall commence work on such day and at such place or places as the board of chosen freeholders or the engineer may designate, and progress therewith so as to complete the work in accordance with this agreement, on or before the expiration of one year and six months after being directed to begin work," etc. The contract further provides (same section) as follows: "And in the computation of said time (expressed in days or parts of days) during which the work, or any part or section thereof, has been delayed in consequence of the condition of the weather, or by any act or omission of the parties of the first part (the board of freeholders), or strikes beyond the control of the party of the second part (the contractor) whereby the receipt of material is delayed (all of which shall be determined by the engineer, who shall certify the same in writing), and also the time during which the prosecution of the whole work is suspended by the engineer, shall be excluded. But if the performance of the "We find that the board of freeholders have of the Fourteenth street viaduct, in Hoboken, not secured any property whatever on the line so we can commence the substructure work to any advantage, being confined to the street entirely. This, as you know, is a great disadvantage to us, and will make us extra expense in doing this work. We, therefore, want to give you notice that all this will be taken into consideration as to the time that we commence the contract. We will want to be allowed all extra time that we lose in any delay caused by our not having the entire right of way and property so we can work to an advantage." On December 31st the engineer wrote: "Mr. A. H. Mallery, Owego Bridge Company: In reply to your question for the extension of 1, 2 and 3, and specifications for the Fourteenth time for the three contracts known as sections street, Hoboken, viaduct, I am advised by our counsellor, Mr. John Griffin, that this work is not officially commenced until all the land is secured on each of the sections. The land for the first section will be secured about the 15th of February, 1908, and the eighteen months specified in your contract should commence on that date, if the land is secured. At present writing we cannot even give an idea when all the land will be secured for the other sections. We will most likely secure the Holland_property next month, which will give you sufficient area to secure crushed stone for foundations and permit the erection of the steel work." The last piece of property on the right of way of section 1 was acquired on September 30, 1907, but the owner was not actually ejected from the property until November 1, 1908. The last piece was acquired on section 2 from the owner on June 25, 1909, and on the third section the last piece was acquired on July 3, 1908. Work was started on the first section in the latter part of October, 1907. The board of freeholders contend that the contractor was verbally notified to begin work on the second section on April 1, 1908, and it will be noticed that this alleged notification was before all the land on that section had been acquired. The board of freeholders also contend that work on the third section began in September, 1908. The contracts provide (clause E, p. 55, printed form): "That the contractor shall pay the board for delay in the completion of the said work, if any, beyond the time fixed for completion (unless or permissible under this contract) at the rate | erwards the engineer clearly countermanded of (different amounts as to each section, as that order, according to my view, by his letwill be hereinafter set forth) per month, which said sum it is hereby stipulated and agreed is ter to Mr. A. H. Mallery on December 31st, the true value of the use of said land to the supra, and thereafter my finding is that the board and the true damages it will sustain by contractor did not receive any sufficient nosuch delay, which said sum the said board is tice that would bind him to pay the liquiauthorized and empowered to retain out of any, dated damages, and the same is true as to moneys due or to grow due to the contractor." sections 2 and 3, so far as the lack of propOn the first section the damages were fixed er notice sufficient to bind the contractor to at the sum of $1,500 per month, on the secpay liquidated damages is concerned. ond section, $600 per month, and on the third section, $650 per month. Counsel for the various claimants have raised two questions regarding the right of the county to claim allowance for delays: First. That the moneys specified in the contracts to be paid by the contractor for delays are penalties and not liquidated damages. Second. That the county itself caused delay to the contractor in the prosecution of the work, and is therefore not entitled to avail itself of the right to claim the damages which the contract provides is payable to it for delays. Of course the county board will be held to a strict performance of the contracts; that is, it must perform all the conditions which are requisite for it to perform before the contractor can be held liable for liquidated damages. Outside of the question of liquidated damages, however, compensatory damages would be allowed if there were unreasonable delay in the prosecution of the work. In the case of Hoey v. Jarman, 39 N. J. Law, 526, I find the rule there stated to be that, where there is ambiguity. or obscurity which the other parts of the instrument do not explain, it is to be construed against the party giving the contract. As I have already found, I do not feel that liquidated damages should be allowed, and I do not think that there has been any sufficient evidence produced from which I could draw any conclusion with respect to the allowance of compensatory damages. The evidence convinces me that the entire course of conduct and dealings between the board and the contractor was such as to evince an acquiescence on the part of the board in the length of time actually taken to complete the work. (245 Pa. 453) NIRDLINGER v. AMERICAN DISTRICT TELEGRAPH CO. (Supreme Court of Pennsylvania. May 22, ACTION FOR LOSS FROM THEFT. In an action for the loss of goods by theft after an employé of the defendant company had negligently failed to reset the electric burglar alarm, installed by defendant on plaintiff's premises, evidence held sufficient to entitle plaintiff to go to the jury on the ques. tion of defendant's negligent failure of duty. [1] There is no doubt in my mind that the damages provided for in the contract are, under the cases in this state, liquidated dam-1. ages. See Monmouth Park Association v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Robinson v. Centenary Fund, 68 N. J. Law, 723, 54 Atl. 416; Moore v. Durnam, 63 N. J. Eq. 96, 51 Atl. 449; Brown v. Norcross, 59 N. J. Eq. 427, 45 Atl. 605; Gussow v. Beineson, 76 N. J. Law, 209, 68 Atl. 907; [Ed. Note. For other cases, see Negligence, Jersey City v. Flynn, 74 N. J. Eq. 104, 70 Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] Atl. 497, affirmed 76 N. J. Eq. 607, 76 Atl. 3; 2. NEGLIGENCE (§ 56*)-"PROXIMATE CAUSE." Tilton v. McLaughlan, 83 N. J. Law, 107, 84 Where an act of negligence is so linked to Atl. 1044; Van Buskirk v. Board of Educa-operating succession of events, in which the succeeding facts that all are one continuously tion, 78 N. J. Law, 650, 75 Atl. 909. first is so naturally linked to the last as to be its cause, "proximate cause" is established; but where the chain is so broken that the is not the proximate consequence of the prievents and facts become independent, the result mary cause." [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. § 56.* For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.] 3. NEGLIGENCE (§ 136*)—PROXIMATE Cause— QUESTION FOR COURT. [2] Under the evidence, however, I do not feel that liquidated damages could be allowed; that it would be inequitable. There were three contracts, and each one contained the clause that the board of chosen freeholders or the engineer were to designate the day and the place or places when and where the work was to commence. I shall find that the contractor was entitled to three distinct notices, one for each of the sections, clearly notifying him when the 18 months there was no conflict in the evidence whether Where, in an action for loss by theft, began to run against him in each case. I the negligence of defendant's employé in failthink he was clearly entitled to that, and, if ing to reset a burglar alarm, installed by dehe was left in doubt about such a vital mat-fendant on plaintiff's premises, and in deter, he should have the benefit of it. He was fendant's charge, was the proximate cause of the loss, the question of proximate cause was notified by the engineer (who had the neces- for the court and not for the jury. sary power under the contract to give such [Ed. Note. For other cases, see Negligence, notice) to commence work on section 1. Aft-Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |