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S. M. Roberts, for complainant. H. M. Cooper, for defendants.

George Holmes, for prosecutor. William C. Gebhardt, for defendants.

LEAMING, V. C. To the bill filed by complainant, defendants have filed a plea in bar, setting forth that a former bill of like effect was heretofore filed by complainant against defendants, and after hearing dismissed by decree of court. To that plea complainant filed a replication. At the hearing the evidence offered established the truth of the facts pleaded. Complainant now contends that the matter pleaded by defendants is insufficient in law to operate as a bar to the maintenance of the present bill.

It is well settled that this question cannot be raised in this manner. To contest the sufficiency of a plea the cause must be set down for hearing on bill and plea. This operates as a demúrrer to the plea. But, when complainant files a replication to the plea, he admits its legal sufficiency, and at the hearing the only question which can be considered by the court is its truth. At the hearing the court cannot inquire into the materiality of the facts set up in the plea. If their truth is established, the bill must be dismissed. If the facts set up in the plea are not established, the complainant is entitled to a decree in accordance with this bill. These principles are well settled and uni. formly recognized. Flagg v. Bonnel, 10 N. J. Eq. 82; Hunt v, West Jersey Traction Co., 62 N. J. Eq. 225, 49. Atl. 434. The result is that this court has no discretion whatever in this matter. The truth of the matters set up in the plea having been fully established at the hearing, the bill must be dismissed.

At the hearing the court called the attention of counsel of complainant to the cases above cited. and thereupon a motion was made for leave to withdraw the replication; but that motion has since been withdrawn and complainant's counsel has elected to stand upon the issues as framed.

A decree must be advised dismissing the bill.

FORT, J. The defendant imposed a tax upon 100,000 tons of coal belonging to the complainant and stored within the defendant's territorial boundaries. But a single question is raised upon this writ. The contention of the prosecutor is that the coal taxed by the defendant was in transit, and hence is not taxable.

Whether the coal is or is not in transit is a question of fact. A careful examination of the facts in this case leads us to the conclusion that the coal taxed by the defendant cannot be deemed to be coal in interstate commerce, as the prosecutor contends. The case before us is within the principle declared by the Supreme Court of the United States in American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538. The coal here taxed was brought from Pennslyvania to Junction in this state, where, under the proof, it was to remain indefinitely. When shipped from Pennsylvania there was no point which was then definitely known to which it was to be transshipped, nor was the purchaser known. When it left the mines the intent was to stack it in what are called trimmers. The proof is that it might remain so stacked for a year or more. When the coal reached Junction it had reached the destination intended when it was shipped from the mines, and the place where it was to be held in storage at the risk of the prosecutor, to be sold and delivered as contracts for that purpose were completely consummated. The cases applicable to the question here, as decided in this state, are all cited by Mr. Justice Van Syckel in John Hancock Ice Co. v. Rose, 67 N. J. Law, 86, 50 Atl. 364. The case before us is distinguishable from all the New Jersey cases which hold property in transit to be nontaxable. Nor can this tax be held to amount to a regulation of commerce within the opinion of Chief Justice Beasley in Erie R. R. Co. v. State, 31 N. J. Law, 531, 86 Am. Dec. 226. We find, under the proof, that the coal taxed was not in transit.

The tax brought up is affirmed.

(75 N. J. L. 68) LEHIGH & WILKESBARRE COAL CO. V.

BOROUGH OF JUNCTION et al. (Supreme Court of New Jersey. June 10, 1907.) COMMERCE–INTERSTATE COMMERCE-TAXATION.

Coal, shipped from the state of Pennsylvania and stored in this state to await orders for sale, and then to be transshipped to customers purchasing, after such storage, is not in interstate commerce, and is taxable at the place of storage here.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Commerce, 88 124-136.]

(Syllabus by the Court.)

Certiorari by the Lehigh & Wilkesbarre Coal Company against the borough of Junction and others, to review an assessment for taxes. Tax affirmed.

Argued November term, 1906, before FORT, PITNEY, and REED, JJ.

SWEETEN V. MAYOR, etc., OF CITY OF

MILLVILLE. (Supreme Court of New Jersey. June 10, 1907.) MUNICIPAL CORPORATIONS-CONTRACTS –CON

STRUCTION-MODIFICATION BY SUBSEQUENT AGREEMENT.

Plaintiff contracted to construct a sewer system for a city to be ready for acceptance on a certain date. By the contract the streets were to be left in the same condition as when found. Plaintiff also agreed by section 23 of the contract to indemnify the city for all suits brought for damage due to the improper conduct of the work or his negligence, and, in case such claims should be made, the city could re

tain as much of the money due on the contract as it considered necessary for protection until the claim was settled. Later a new agreement was entered into between the parties, stating that in consideration of the payment of a certain sum by plaintiff the city released him from all claims for failing to complete the work in the time allowed, and for failing to restore the street surfaces according to the terms of the contract, and that plaintiff, in consideration of the payment of a certain sum, released the city from all claims, excepting for sums retained by the city under section 23 of the original contract. The agreement also stated that it should not be considered as annulling or modifying the provisions of the original agree ment, but a mutual release for the particulars specified. Held, that section 23 of the original contract was left unmodified, and hence, where à suit was begun by a gas company for damages resulting from work done under the contract by reason of plaintiff's negligence, and remained unsettled, the city could retain as much of the money due plaintiff as it deemed necessary to save it harmless from the suit until the same was settled,

Action by Frank B. Sweeten, trading as Sweeten & Son, against the mayor and common council of the city of Millville. Demurrer to defendant's plea overruled.

Argued February term, 1907, before the OHIEF JUSTICE, and GARRETSON and REED, JJ.

French & Richards, for plaintiff. Louis H. Miller, for defendant.

REED, J. The declaration sets out that Sweeten contracted by an agreement entered into on July 17, 1903, to construct a sewer system for the city of Millville, to be ready for acceptance on May 1, 1904. By the contract it was provided that the streets should be left in the same condition as when found.

It appears from a recital in the declaration that the contract contained a section, No. 26, which read as follows: "The contractor hereby agrees to keep such work as may be done by him under this contract and specifications in complete repair for twelve months after its final acceptance, and authorizes the said city to retain three per cent. of the gross amount of this contract for the same period to insure such repairs; such three per cent. to come out of the amount retained hereinafter referred to. The compensation for any such repairs must be included in the reg. ular prices bid for the system, and, in case of failure on the part of the contractor to perform this portion of the contract, such repairs will be made by the said city and the expenses thereof deducted from the percent. age retained.” It also contained another section, No. 23, which read as follows: "The contractor hereby agrees to keep sufficient guards by day and by night to prevent accident by travel, and to indemnify and save harmless the said party of the first part from all suits, injuries or damages received or sustained by any person or persons or properties, by or from said party of the second part, bis servants, agents, employés or workmen during the prosecution of the work, or

by or in consequence of any improper materials in its construction, or by or on account of any act of negligence or omission whatsoever of said party of the second part, or any of his servants, employés, workmen or agents; and in case of suit or suits, claim or claims therefor being made, so much of the money due or to become due to the said party of the second part, under and by virtue of this contract as shall be considered necessary by said city, may be retained by the city and withheld from the said party of the second part until all such suits or claims shall bave been settled and evidence of such settlement furnished the city to its satisfaction, and the said party of the first part shall not in any way be liable therefor."

The declaration then states that on January 19, 1905, the plaintiff had performed his part of the contract. It sets out that on that date there was a suit pending against the contractor and also the city of Millville, which suit was brought by the Millville Gas Company to recover damages resulting from the negligence of the defendants in laying sewer pipes under the said contract. It sets out that the verdict against the defendant, Sweeten, in said suit was paid before judg. ment, and evidence of such settlement by the said plaintiff was furnished to the de fendant to its satisfaction on September 11, 1905. It sets out that a new agreement be tween Sweeten and the city of Millville was entered into on May 5, 1905, a copy of which is referred to as annexed to the declaration. This new agreement recites that whereas, the contractor had failed to complete his work by May 1, 1904, from which failure the city had suffered great injury, to an amount agreed upon by the parties to be $2,600; and whereas, the contractor had neglected to restore the street sur faces to the condition as when found; and that it was agreed that it would cost the city $800 to restore them; and whereas, the parties had agreed that upon payment by the contractor of the said sums together amounting to $3,400, the city should release the contractor from all damages for such failures, and whereas, said work had been accepted by the city; and whereas, there was unpaid to the contractor $14,857 on his entire con. tract price and the city had retained $2,902.57 as provided for in section 26 of the original contract, and $800 for damages claimed in the action brought by the Millville Gas Company, and $3,400 retained for the contractor's defaults; and whereas, the balance was $6,755.36 which the city paid over to the contractor: The agreement witnesses that in consideration of the payment of said $3,400 the city has released the contractor from all claims for failing to com plete the work and for failing to restore th street surfaces according to the terms of th original contract. It witnesses that the cor tractor, in consideration of the payment o $6,755.36, releases the city from all actior

due or to become due under the contract as shall be considered necessary by the city may be withheld from the contractor until all such suits shall bave been settled, and evidence of such settlement furnished the city to its satisfaction.

The mention in the contract of May 5th of the purposes for which the $1,800 was retained and the purposes for which the $2,902.57 was retained was merely descriptive for the purpose of identifying the amounts which were to be afterward accounted for. Those moneys, by the terms of the May 5th contract, were to be dealt with according to the true intent of the original agreement. Whenever the purpose for which either of these sums were originally retained was accomplished, they so far became due to the contractor. The provisions of section 23 thereupon empowered the city to retain all or part of them to await a settlement of any suit brought against the city for the negli. gence of the contractor. The retention was within the very words of the twenty-third section, which expressly provided for the withholding of any money to become due to answer for claims and suits for the time mentioned.

We think the plea is good and the de. murrer should be overruled,

and claims, excepting for the $1,800 and the $2,902.57 retained by the city under section 23 and section 26 of the original contract, which sum should be held by the city and finally disposed of according to the true intent, meaning, and effect of the said sections. It also witnesseth that this agreement should not be considered as annulling or modifying the provisions of the original agreement, but should be considered a mutual release for the particulars set out and specified. The declaration also states that the plaintiff has kept all work done under the contract in complete repair for 12 months after its final acceptance by the city. These are the statements in substance of the declaration. To this declaration a plea was interposed. The plea sets up that on October 25, 1905, before the settlement of the suit in the declaration mentioned, the Millville Gas Company commenced another action against Sweeten and the city of Millville to recover $5,000 for damages on account of certain injuries sustained by the said gas company from work done under the contract mentioned by reason of negligence on the part of Sweeten and his servants, and that this action is still pending. The plea states that the sums mentioned in the declaration are retained until such suit is settled. To this plea the plaintiff has filed a demurrer.

It is to be observed that the plaintiff's case is that the sum of $2,902.57 was retained as a guaranty of the contractor's covenant to keep his work in complete repair for 12 months after its final acceptance; that its acceptance was admitted in the new contract of May 5, 1905; that the work had been kept in repair for the requisite period, and that the contractor, when this action was brought in August, 1906, was entitled to receive this money. The plaintiff's case is that the sum of $1,800 was retained as guaranty that the city would not suffer by reason of the particular action brought by the Millville Gas Company, and that the claim for which this particular action was brought was settled, and so the plaintiff is entitled to receive this money. By the terms of the agreement of May 5, 1905, it was provided, as already appears, that it should not modify the provisions of the original agreement, but should be construed as a mutual release for the particular purpose specified therein. Those purposes were to liquidate the amount of damages to the city for defaults by the contractor in respect of the two particulars, namely, bis failure to complete the work in time, and his failure to restore the street surfaces to their former condition.

The provisions of sections 23 and 26 of the original contract were left unmodified. Now, section 23 provides that the contractor shall save the city harmless from all suits against the city on account of any act or omission or negligence by the contractor or his servants, and it further provides that, in case of such suit or suits, so much of the moneys

(75 N. J. L. 256) HIRSHBERG, HOLLANDER & CO. V. JOHN

F. ROBINSON & SON. (Supreme Court of New Jersey. June 10, 1907.) EVIDENCE-HEARSAY EVIDENCE.

Hearsay evidenoe is incompetent to establish any specific fact, which is, in its nature, susceptible of being proved by witnesses who speak from their own knowledge. (Syllabus by the Court.) Appeal from District Court of Camden.

Action by Hirshberg, Hollander & Co. against John F. Robinson & Son. Judgment for defendants, and plaintiffs appeal. Re versed.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Wilson, Carr & Stackhouse, for appellants. Thomas P. Curley, for appellees.

TRENCHARD, J. This is an appeal from a judgment of the district court of the city of Camden. The action was brought to recover the amount due upon the sale of certain paint by the plaintiffs to the defendants. The judgment was for the defendants. By the state of the case it appears that there was evidence tending to show that paint was delivered by the plaintiffs to the defendants as directed by the latter to the Hotel Elberon, at Atlantic City, N. J., and was intended for use upon that building which was then in course of erection, and which building the defendants had contracted to paint; that the defendants had not paid for the paint because they contended that they had rescinded

the order. It appears that the defendants conceived that they were entitled to rescind the order for the paint because of an allegod misstatement made by William Rich, the plaintiffs' salesman, that Dr. Ludy, the owner of the building, had sent him to defendants and wanted him to have the order for the paint.

If the defendants bad a right of rescission at all, it necessarily rested upon the falsity of the statement, the falsity of which must have been established by legal evidence. The only proof attempted to be offered by the defendant as to the falsity of such statement was the testimony of John F. Robinson, As it appears in the state of the case, it was as follows: "That Dr. Ludy (not in the presence or hearing of Mr. Rich or the plaintiffs) informed him (Robinson) that he had not sent Rich to Robinson to get the order." Objection was made by the plaintiffs to this testimony, on the ground that it was hearsay, and that the plaintiffs could not be bound by the statements of third persons made in the absence of the plaintiffs or their agent. The testimony was admitted, and exception there. to duly taken. It is familiar law, requiring no citation of authority to support it, that hearsay evidence is incompetent to establish any specific fact, which is, in its nature, susceptible of being proved by witnesses who speak from their own knowledge. Tested by this rule, the evidence of the witness wis incompetent. If the statement of the salesman was false, there were two persons competent to testify to that fact, viz., Dr. Ludy and the salesman, neither of whom testified to the falsity of the statement.

The result is that the judgment below should be reversed, and a venire de novo awarded.

partner and manager of the business pur. chased to make a full and complete disclosure of the condition of the business in every way essential to an adequate knowledge on the part of complainants as to what they were selling; and the burden is upon the defendant to establish the fact that he performed bis full duty in that respect. It is impossible to draw any conclusion from the affidavits filed other than that defendant performed his full duty. Complainants fix the date of dissolution as March 15, 1907. Defendant fixes the date as March 8, 1907. It is mani. fest that on either of these dates the prospect of effecting a sale of the land in question was so remote that neither complainants nor defendant, with all the facts touching the transaction before them, could properly have regarded the negotiation as an asset of value or worthy of consideration. Up to March 20th the negotiations were in effect abandoned, according to the testimony of Mr. Meyer. If Mr. Meyer's testimony is to be credited, it is manifest that at the date of the dissolution neither he nor defendant could have entertained any expectation that negotiations would ever be renewed touching the sale of the lands in question. I think it is entirely clear that it was only the subsequent reduction in price by the owners of the land which suggested the resumption of the negotiations of sale. If defendant, at the time of dissolution, stated (as it is claimed by complainants) that no business or deal was pending, I entertain the view that such statement was fully justified so far as the transaction in question is concerned. As a blocked or abandoned negotiation, it could scarcely have been properly considered as pending or worthy of serious consideration. Had the increased offer for the land or the reduction in the price for the sale of the land been made prior to the dissolution, a different aspect might be given to the situation.

I am convinced that, under the evidence before me, a preliminary writ would be without sufficient justification.

The order to show cause will be discharged.

(73 N. J. Eq. 243) GILBERT & O'CALLIGHAN V. ANDERSON. (Court of Chancery of New Jersey. May 31,

1907.) PARTNERSHIP PURCHASE OF BUSINESS BY ONE PARTNER-DUTY OF PURCHASER.

Where one partner, who was the manager of the business, purchased the interest of the other partners, it was his duty to make full disclosure of the condition of the business in every way essential to an adequate knowledge on the part of the other partners as to what they were selling.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, f 142.]

Bill for injunction by Gilbert & O'Callighan against J. Lukens Anderson on return of order to show cause. Order discharged.

J. D. McMullin, for complainant. H. C. Kramer, for defendant.

(75 N. J. L. 201) STATE V. SHARP. (Supreme Court of New Jersey. June 10, 1907.) , 1. INDICTMENT - DEMURRER OVERBULINGJUDGMENT.

Upon overruling a demurrer to an indict. ment for a misdemeanor, the court may enter judgment at once, or, in its discretion, permit the demurrer to be withdrawn and a plea inter. posed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, 88 498, 499.) 2. FORNICATION-INDICTMENT.

An indictment charging that the defendant did commit fornication with Sarah A. C. is good without stating that Sarah was an unmarried

woman,

LEAMING, V. C. Complainants and defendant bore to each other a trust relationship as partners, and, when defendant purchased the interest of complainants in the partnership business, it was his duty as a

[Ed. Note.- For cases in point, see Cent. Dig vol. 23, Fornication, $ 3.]

(Syllabus by the Court.)

Error to Court of Quarter Sessions, At with whom defendant 18 charged with comlantic County.

mitting fornication and with having carnal Charles Sharp was convicted of crime, and knowledge of was an unmarried female. brings error. Affirmed.

When a statute creates a misdemeanor by Argued February term, 1907, before GUM defining the elements which make up the MERE, C. J., and GARRETSON and REED, offense, the rule is that the statutory lanJJ.

guage shall be used in the indictment. Thus

in Massachusetts the statutory provision is J. J. Crandall, for plaintiff in error. J. E.

that, if a man commits fornication with a P. Abbott, for the State.

single woman, each of them shall be punish

ed; and the Massachusetts court held that REED, J. The defendant, Charles Sharp, the statutory language or its equivalent must was indicted by the Atlantic county grand be used in an indictment for fornication, and jury for that in said county he did commit therefore it must appear that the parties fornication with Sarah Augusta Cavileer, were not married. Commonwealth v. Murand then and there carnally knew the said phy, 2 Allen (Mass.) 163. Our statute, howSarah Augusta Cavileer. To this indictment ever, does not attempt to define what shall the defendant, after pleading not guilty, be fornication. The statutory language is: withdrew his plea and interposed a demurrer “Any person who shall commit fornication to the indictment. The trial court overruled shall be guilty of a misdemeanor." P. L. the demurrer, and called upon the defendant 1898, p. 807, § 48. The word "fornication" is to again plead. This the defendant refused a word of long-settled meaning, and implies to do. The court then caused a jury to be an act with an unmarried woman; so, where impaneled to try whether the defendant the statute simply makes fornication a misstood mute obstinately and on purpose; and demeanor, the use of the word “fornication" the jury returned a verdict that the defend as descriptive of the act would seem to be ant stood mute obstinately. It was then sufficient. Mr. Bishop says that in an inordered that a plea of not guilty be en dictment no greater certainty is necessary tered for the defendant, and thereupon a than will show a prima facie case, and the jury was called to try the issue formed by prosecutor, it is believed, is not required to the said plea of not guilty, which jury re prove that the party was not married, and turned a verdict of guilty. The court pro therefore, in the absence of particular statunounced judgment that the defendant be tory words, the prosecutor could not be callfined and imprisoned. This judgment is ed upon to allege that the parties were not brought up by this writ. Upon the overrul married. A marriage would seem in its naing of the demurrer, the defendant was not ture to be a matter of defense, while it is a entitled of right to a trial. The court could matter lying peculiarly within the knowledge at once have pronounced judgment. This of the defendant. Bish. St. Cr. 8 693. In course of practice is entirely settled at com this state it has been ruled that the state is mon law. Archbold's Cr. Pr. & Ev. 116; 2 not bound to prove that the woman with Hawkins, P. C. c. 31, § 7; Reg. v. Gibson, 8 whom the commission of the act is charged East, 107-111; Rex V. Taylor, 5 D. & Ry. was unmarried; that being the presumption. 422; Rex v. Birmingham & Gloucester Ry., Gaunt v. State, 50 N. J. Law, 490, 14 Atl. 600. 3 W. B. 223. Everywhere in this country if The state being not required to prove the there is a demurrer to an indictment for a singleness of the woman, it follows in the misdemeanor and it is overruled, the judg language of Mr. Bishop that the state, in the ment, unless the demurrer is permitted to be absence of statutory language, is not called withdrawn, is final against the defendant. upon to allege it. This view is supported 1 Bish. Cr. Pro. & Pr. $ 784.

by the very satisfactory opinion delivered by The demurrer was not withdrawn in this the Supreme Court of Indiana in the case of case. The defendant had the right to either State v. Stephens, 63 Ind. 542. stand upon it or to waive it by asking leave It also assigned for error that it should to withdraw it so that he could plead to the have been alleged that the birth of a bastard indictment. He chose to do the former. followed the act of copulation. For this The two subsequent trials, however, did the position the case of Smith v. Minor, 1 N. J. defendant no injury, for the judgment en Law, 19, is cited. That case merely holds tered is supported by the record, and the that at the time of the decision (1790) fornicaoverruled demurrer unwithdrawn. Indeed, tion was not a crime in this state, either át the plaintiff in error assigns no error attack common law or under any statute. In con. ing the judgment on the ground that the struing the statute then in existence, the trials were irregular. His refusal to plead court held that it required not only fornicawas obviously designed to preserve his strict tion, but something more, namely, the birth rights as a demurrant, and so his assign of issue to constitute a statutory crime. But ment of error was logically based upon the Judge Patterson's Crimes Act of 1796 made issue raised by the demurrer, namely, wheth fornication itself criminal, and since then it er the indictment was legally sufficient. has never been questioned, until now, that

The first point of attack upon the indict the offense made a crime was not completed ment is that it fails to state that the woman by intercourse of the kind with an unmarried

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