(107 A.) LEWIS, V. C. The motion to strike out the bill of complaint should prevail. The facts which are agreed upon are as follows: The bill of complaint was filed by the executor of Helena Metz for instructions as to its duty with respect to two bank deposits, one with the complainant, and one with the First National Bank of Westwood, N. J., standing in the joint names of Helena Metz and her daughter, the defendant, Louisa Archibald. The account with the New Jersey Title Guarantee & Trust Company, which dated from March 31, 1916, contains the following provision: "This account, and all money to be credited to it, belonged to us as joint tenants, and will be the absolute property of the survivor of us, either and the survivor to draw." The other account with the First National Bank of Westwood, N. J., was opened March 4, 1918, in the name of Helena Metz and Louisa Archibald; they having signed a writing and delivered the writing to the said bank, in which, among other things, was the following provision: "This account and all money to be credited to it belongs to us as joint tenants, and will be the absolute property of the survivor of us, either and the survivor to draw." Neither of the parties drew any funds while both were alive. [1] These facts set forth in the bill lead me to the conclusion that the accounts are in joint tenancy, and as such the survivor is entitled to the money deposited. [2] The requisites of an estate in joint tenancy are present-the unities of interest, title, time, and possession, and the estate, of course, was created by the act of the parties. [3] It is well settled that a joint tenancy may be created in personal property with the same incidents of joint control and survivorship as in real property. Savings & Building Association v. Margaret Stuart McKenzie, 87 N. J. Eq. 375, 100 Atl. 931. An examination of this case leads one unhesitatingly to view the transactions beTrust Company, the First National Bank of tween the New Jersey Title Guarantee & Westwood, N. J., Helena Metz, and Louisa Archibald, as having created a joint tenancy in the moneys deposited in these accounts. In the case of Morristown Trust Co. v. Capstick, 106 Atl. 391 (just reported), Vice Chancellor Stevens indicates a concurrence in the views taken in the case under conAn order may be accordingly entered. sideration. COOPER v. AIELLO. (Supreme Court of New Jersey. Juy 11, 1919.) 1. FRAUDS, Statute of ~58(2)—INTEREST IN LAND-AGREEMENT FOR LEASE. An oral agreement to make a lease for one year with an option for renewal for two years more was a contract concerning an interest in lands for which a memorandum in writing was required by 2 Comp. St. 1910, p. 2612, § 5. 2. FRAUDS, STATUTE OF 58(1) — LEASE — AGREEMENT FOR LEASE. The Statute of Frauds (2 Comp. St. 1910, p. 2610) § 1, relating to leases, does not apply to an oral agreement to enter into a written lease. 3. LANDLORD AND TENANT 22(5)—AGREE MENT FOR LEASE ACTION FOR BREACH- The measure of damages for breach of an agreement to enter into a written lease is not the amount of rent which would be paid under the lease, but the difference between that could be rented to another, and to entitle the amount and the amount for which the premises landlord to any damages he must show at least ordinary diligence to let the premises to some one else. Argued February term, 1919, before BERGEN, KALISCH, and BLACK, JJ. Paul M. Fischer, of Montclair, for appel lant. Walter G. Brandley, of Caldwell, for appellee. The words used by the New Jersey Title Guarantee & Trust Company and the First National Bank of Westwood in these contracts of account are most appropriate for the creation of an interest of joint tenancy, and they meet the rule that joint tenancy in personal estates must be sustained by the same requirements and fulfill the same conditions as joint tenancy in realty. Staples v. upon between the attorneys of the respective Maurice, 2 Eng. Reprints, 395. litigants, inter alia, recites the following KALISCH, J. The state of the case agreed A case which controls is East Rutherford | facts: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The action was to recover damages for the [tiff's action for a breach of the verbal agreebreach by the defendant of a verbal agreement ment to make a lease and to give defendant alleged to have been made between the plain- an option of two years more is not maintiff and the defendant, to make a written lease tainable, for the reason that the agreement for one year with an option of two years' additional term on premises owned by the plain- to make a lease for one year and to give an option for two years more was a contract retiff in the borough of Caldwell." lating to and concerning an interest in lands, tenements, and hereditaments, and in order to be an enforceable agreement the statute of frauds requires that there should be some memorandum or note thereof in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. 2 Comp. Stats. p. 2612, § 5. [2] It is important to bear in mind that the plaintiff's action cannot, properly, be based upon any lease to recover rent due, but must rest, solely, for support upon the verbal agreement made with the defendant that he would enter into a written lease with her, and which verbal agreement she claims he breached and for which breach she seeks damages. It is therefore plain that section 1 of the statute of frauds, 2 Comp. Stats. p. 2610, which relates to leases, etc., is not applicable to the situation here. That the verbal agreement to make a written lease with the plaintiff was made by the defendant on October 1, 1917, and that the plaintiff agreed to make and to pay for certain repairs and decorations as part of the terms of the letting; the term to be for one year from November 1, 1917, for the rental of $420, with the option to renew for two years' additional at $450 and $480, respectively. That at the time of making the verbal agreement the defendant paid $20 as a deposit on account of such rental, the plaintiff agreeing to prepare and execute a written lease with the defendant later. That a few days prior to November 1, 1917, duplicate drafts of a lease unsigned by the plaintiff were sent to the defendant, who informed the plaintiff that he would not accept the premises nor sign the lease. The agreed state of the case further recites that "the court found a complete verbal contract as alleged by the plaintiff to make a lease between the plaintiff and defendant as of October 1, 1917, and assessed damages for the loss of rent for 12 months at $35 per month," and, after deducting $20 which the defendant paid to the plaintiff on deposit at the time the verbal agreement was made and $50 for the caption, "Agreement for Lease" the text "rent received from new tenant," gave judg-reads: ment for the plaintiff against the defendant for $350. The plaintiff's action was commenced on October 5, 1918, and was based squarely on a breach of the defendant to enter into a lease for the premises pursuant to the verbal agreement. At the time when the action was brought, a year's rent would have accrued under a lease made in pursuance of the verbal arrangement. The court appears to have accepted the amount of rent fixed by the parties to the verbal agreement as the legal standard by which the plaintiff's damages should be assessed for the defendant's breach. This was erroneous. Before entering into a discussion of the question whether the trial judge applied the proper rule relating to damages recoverable in a case where there has been a breach of an agreement by a defendant to enter into a lease, there is in our judgment a fundamental question which underlies the entire proceedings, and should be first disposed of, and that question is: Was the verbal agreement, entered into by the litigants, to make a lease a valid contract? [1] We think that under the doctrine declared in Charlton v. Real Estate Co., 67 N. J. Eq. 629, 60 Atl. 192, 69 L. R. A. 394, 110 Am. St. Rep. 495, 3 Ann. Cas. 402, the plain [3] Assuming that the verbal agreement for a lease between the parties is a valid one, the next question to be considered is whether the trial judge in allowing the plaintiff to recover the rent reserved as damages applied the proper legal rule. In 16 Ruling Case Law, p. 553, § 24, under "There is a marked distinction as regards both the rights and liabilities of the parties between a lease and a mere agreement for a lease. Thus where the proposed lessee refuses to take a lease in pursuance of his agreement to do so, an action will not lie against him to recover the rent which he was to pay. The reason for this rule is that an agreement for a lease, vests no estate in the proposed lessee and consequently the stipulated return cannot be recovered as rent." As to the measure of damages to be applied where there has been a breach of an agreement for a lease by the prospective lessee, the rule is stated in 34 Cyc. p. 900, as follows: "The measure of damages sustained by the owner in an action on a breach of agreement for a lease is the difference between the contract price of the premises as agreed upon and the amount plaintiff was able to realize upon the property after the breach of the agreement." A very instructive review of the cases on this topic is to be found in Oldfield v. Ange les Brewing & Malting Co., 62 Wash. 265, 113 Pac. 632, 35 L. R. A. (N. S.) 426, at the bottom of page 429, where the court, in commenting on the decisions in other jurisdictions, dealing with the precise question raised here concludes: (107 A.) "Other similar cases might be cited, but the [ may understand such opinion or belief to be above are sufficient to indicate what, to our based upon something which the prosecutor mind, is the better rule. When therefore appellant refused to take possession of the building erected by respondent under their contract, a cause of action immediately arose, and the measure of damages was not the rent reserved in the contract, as held by the trial court, but the difference between that sum and the rental value of the premises for the five years fixed in the agreement." knows outside the evidence, yet, when the pros- 724(2)-ARGUMENT OF COUNSEL-DENUNCIATION OF DEFENDANT. Where the evidence in a criminal case shows 5. CRIMINAL LAW 1129(3)—APPEAL AND ERROR-SPECIFICATION OF ERROR. In the present case, it appears that, several days before the time fixed by the par- that the defendant committed the assault and ties to enter into a written lease, the plain-respond to his improper demands for money, a battery upon a woman because of her refusal to tiff was notified of the defendant's refusal, statement by the prosecutor of the pleas, in his and hence it became incumbent upon the summing up to the jury, that the defendant was plaintiff to exercise at least ordinary dili- a "crook," will not lead to a reversal. gence to let the premises to some one else. There is an utter absence in the record of any proof that the plaintiff made any effort whatever to obtain a tenant for the premises. of review only under section 136 of our Crimi When a defendant elects to proceed by way It does appear, inferentially, from the cir-nal Procedure Act (2 Comp. St. 1910, p. 1863), cumstances that the trial judge deducted an he must specify the causes in the record relied item of $50 for rent from the damages assessed against the defendant, which sum, according to the plaintiff's state of demand, was rent for the months of September and October, 1918, ten months after defendant's breach, paid by a tenant of the premises. We prefer, however, to reverse this judgment upon the fundamental ground that the plaintiff's action is not maintainable because it is founded on a verbal agreement which is unenforceable, as being against the statute of frauds. upon for reversal with sufficient precision to apprise the court, and counsel for the state, of the injury of which he complains, and the court will consider only those so specified. Error to Court of Quarter Sessions, Cape May County. Donald R. McCormack was convicted of assault and battery, and he brings error. Affirmed. Argued June term, 1919, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ. C. L. Goldenburg, of Atlantic City, and John R. K. Scott, of Philadelphia, Pa., for plaintiff in error. Eugene C. Cole, Prosecutor of the Pleas, of Ocean View, and James M. E. Hildreth, of Cape May, for the State. TRENCHARD, J. This writ of error brings up for review (pursuant to section 136 of our Criminal Procedure Act [2 Comp. St. 1910, p. 1863]) the judgment upon a conviction of Donald R. McCormack, alias John Hogan, alias William Hart, for assault and battery upon one Hilda A. Voigt at Sea Isle City on September 11, 1917. We are of the opinion that none of the causes assigned justify a reversal. It is first contended that the trial judge erred in permitting the state to examine Hilda A. Voigt, the complaining witness, as fol lows: "Q. Well, on this occasion of which you speak did he make any demand for money? A. Yes, sir. "Q. What amount did he demand of you? A. Five thousand dollars. While it is error for the prosecutor of the pleas, in his summing up to the jury, to declare his individual opinion or belief that the defend-"Q. And what did you say to him when he deant is guilty, in such a manner that the jury manded? A. I said I had no more money." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] We think that was proper. The record [ant committed the assault and battery upon shows that the "occasion" referred to was the complaining witness because of her refus the time of the assault. What was said al to respond to his improper demands for by the defendant at the time of the assault money. In view of this, we think the proseor immediately prior thereto, was a part of cutor was within his privilege in making the the res gestæ and admissible in evidence. statement objected to. State v. Lang, 75 N. J. Law, 1, 66 Atl. 942, affirmed 75 N. J. Law, 502, 68 Atl. 210. It is next contended that the re-examination of the same witness by the state was improper; but we think not, in the circumstances. [5] The last cause for reversal assigned is that "There were other manifest errors in the record and proceedings in said cause to the manifest wrong and injury of the defendant." [2] Counsel for the defendant on cross-examination elicited from this witness that some weeks prior to the assault, and while she and the defendant were living as man and wife in Sea Isle City, defendant demanded But that is not a sufficient specification. and obtained from her large sums of money. When, as here, a defendant elects to proceed Defendant's counsel then sought to show that by way of review only under section 136 of our Criminal Procedure Act (C. S. p. 1863), her real motive for having the defendant arrested was that he had not returned to her he must specify the causes in the record resuch moneys, and repeatedly put such ques-lied upon for reversal with sufficient precitions to her. He also elicited from her that sion to apprise the court, and counsel for the she had obtained some moneys from the de- state, of the injuries of which he complains, fendant. In this situation it was competent and the court will consider only those so for the state on re-examination to inquire, specified. State v. Herron, 77 N. J. Law, "How much money had Mr. McCormack got-523, 71 Atl. 274. ten from you prior to demanding the $5,000?" The judgment will be affirmed. and to elicit from her that it amounted to over $30,000, since that tended to rebut and explain and avoid the effect of the new matter brought out on cross-examination. COCHRAN et al. v. BURNS. (No. 46/499.) (Court of Chancery of New Jersey. July 11, 1919.) It is next contended that the judgment should be reversed because the prosecutor of the pleas in his summing up to the jury said: "Would I, district attorney, having delved in 1. REFORMATION OF INSTRUMENTS this case for months, urge this prosecution if I did not believe what the prosecutrix said was true?" [3] We think this was improper. It is always error for the prosecutor of the pleas in his summing up to the jury to declare his individual opinion or belief that the defendant is guilty, in such a manner that the jury may understand such opinion or belief to be based on something which the prosecutor knows outside the evidence. But, in the present case, when the defendant's counsel objected and asked that the remarks be withdrawn, the prosecutor at once said: "I withdraw the remarks and ask that they be disregarded." Nothing more was said upon that topic. Apparently the incident was thus closed to the satisfaction of all concerned by the prompt and frank withdrawal of the improper remark. At least, no request was made to the court in respect thereof. In these circumstances, we think that the defendant was not prejudiced, and a reversal would not be justified on account thereof. Hahn v. Delaware, L. & W. R. Co., 105 Atl. 459. [4] It is next argued that there should be a reversal because the prosecutor of the pleas in his summing up to the jury characterized the defendant as a "crook." We think not. The evidence tended to show that the defend 16 MISTAKE OF DRAFTSMAN-CONFORMITY TO PREVIOUS AGREEMENT. Where an instrument professes, or is intended, to carry into execution a previous parol or written agreement, but by mistake of the draftsman, either as to fact or law, violates the manifest intention of the parties, equity will correct the mistake so as to produce a conformity thereto. 2. REFORMATION OF INSTRUMENTS 13(2)— OMISSION OF RESERVATION-MISTAKE. Where agreement was to convey land subject to rights of tenants occupying premises under a lease, and through mutual mistake reser vation was omitted from deed, deed will be reformed so as to include reservation. 3. REFORMATION OF INSTRUMENTS PLEADING-SUFFICIENCY OF BILL. 36(1) Although bill for reformation of deed is not in the accurate and technical form which is de sirable, it is sufficient if the question of whether there was a material mistake in the deed is substantially presented so that it cannot be misapprehended. Bill by Underwood Cochran and another against John G. Burns. On motion to strike out bill. Motion denied. Bourgeois & Coulomb, of Atlantic City, for the motion. Schimpf, Hanstein & Butler, of Atlantic City, opposed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (107 A.) LEAMING, V. C. Complainants' amended | entitled to have the deed contain a reservabill is for reformation of a deed of convey- tion of that nature. ance of real estate made by complainants to defendant. Defendant now moves to strike out the amended bill on the ground "that there are no facts set forth as alleged in said bill which would entitle the complainants to the relief prayed for therein." [1] The general rule touching reformation of written instruments, as early stated in our federal Supreme Court, cannot be questioned: "Where an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agree ment, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement." Hunt v. Rhodes, 1 Pet. 1, 13 (7 L. Ed. 27). [3] It is an approved practice in suits for reformation of instruments to set forth in full in the bill the terms of the contract, if in writing, and also the terms of the instrument which has been executed in fulfillment of the contract, and to also specifically set forth the words sought to be added or expunged. See article on Reformation, etc., in 18 Enc. Pl. & Pr. 744 et seq. But I am unable to find this practice defined as a neces sity. I think the sound rule is that stated in Tucker v. Madden, 44 Me. 206: Although a bill for the reformation of a deed "is not in the accurate and technical form which is desirable," it is sufficient if "the question whether there was a material mistake in the deed is substantially presented, so that it cannot be misapprehended." I will advise an order denying defendant's motion. Railroads. The rule, as there stated, is given express approval in Ex'rs Wintermute v. Ex'rs Sny- KOWALSKI v. McADOO, Director General of der, 3 N. J. Eq. 489, 500, and is in substance approved by our Court of Errors and Appeals in Freichnecht v. Meyer, 39 N. J. Eq. 551, 560. If complainants' bill clearly sets forth a situation of that nature it must be sustained. The bill states as a fact that the premises conveyed to defendant were subject to lease, and were occupied by tenants, all of which defendant knew, and that it was the intention of complainants and defendant that the conveyance should be made subject to the leasehold and the interests of tenants, and to that end they placed in the written agreement of sale a provision that "all adjustments such as water, sewer, interest, rents, taxes, etc., on both properties to be adjusted as of day of settlement," that a conveyance was subsequently made by complainants to defendant in pursuance of the agreement, but the deed of conveyance so made was a general warranty deed, and did not mention leasehold interests of tenants; that complainants' deed was made and executed without excepting the leasehold interest of tenants through mutual inadvertence and mistake. The prayer is that the deed be reformed fo conform to the intention of the parties, as contained in the agreement of sale, and for general relief. (Supreme Court of New Jersey. July 11, 1919.) 1. RAILROADS 5%, New, vol. 6A Key-No. Under General Order No. 27, and Supplement No. 4, of Director General of Railroads, providing that a ratable amount of certain wage increases should be paid employés who "for any reason" had been dismissed but not to those who had quit “voluntarily," an employé arrested for larceny from railroad did not leave "voluntarily" and is entitled to increased compensation for time he worked. ¦ 648-CONCLUSIVENESS-CON VICTION OF CRIME. In action to recover wages, an admission that plaintiff had been convicted of petty larceny is not evidence that he actually committed the larceny, and its only effect is to affect plaintiff's credibility as a witness. Appeal from District Court of Jersey City. Action by Anthony Kowalski against [2] In my judgment these averments clear- William G. McAdoo, Director General of Railly express the essential facts on which refor- roads. Judgment for plaintiff, and defendant mation may be decreed. If, in fact, the appeals. Affirmed. agreement was to convey subject to the rights of the occupying tenants, and the conveyance which was made failed to express that reservation, and the omission of that reservation from the deed of conveyance occurred through mutual inadvertence and mistake of the parties, complainants are clearly pellee. Argued June term, 1919, before BERGEN, KALISCH, and BLACK, JJ. Vredenburgh, Wall & Carey, of Jersey City, for appellant. I. F. Goldenhorn, of Jersey City, for ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |