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agency may not be established by proof of ed, and that part payment of the commissions that kind.

had been made by check received from defend

ant, further held, tbat motions to nonsuit and But it is contended that it appeared by the

direct a verdict for defendant were properly proof that at the time when Joseph gave denied, his evidence of the fact of agency the de [Ed. Note.-For cases in point, see Cent. Dig. fendant was in court, seated a short distance vol. 8, Brokers, 88 128, 129.] from the witness, and could have heard and (Syllabus by the Court.) did not deny the statement, and hence the Certiorari to District Court of Atlantic evidence must be given such force as is usual City. ly given to statements made in the presence Certiorari by Kate Schuman against Eugene of a person which call for some denial, or

M. Colloty, to review a judgment of the disotherwise they may be taken as a tacit ad trict court of Atlantic City. Judgment afmission of their truth. Whether such force firmed. is to be given to statements so made is in Argued February term, 1907, before FORT, all cases subject to two conditions at least: PITNEY, and HENDRICKSON, JJ. First, whether the party heard the statement

Thompson & Cole, for plaintiff. El H. and comprehended it; and, second, whether

Chandler, for defendant. he was in such a situation as called upon him to make a reply or denial. Commonwealth v. HENDRICKSON, J. This writ brings up Kenney, 12 Metc. (Mass.) 235, 46 Am. Dec. for review a judgment of the district court 672; Donnelly v. State, 26 N. J. Law, 604,

of Atlantic City entered upon a verdict. The 632; Roesel v. State, 62 N. J. Law, 235, 41 suit was brought to recover commissions Atl. 408. In this case the statement as to claimed by Mr. Colloty, the plaintiff, to be the agency was made on the witness stand

due him as a real estate broker upon the in court, and, conceding that the defendant rental of the Hotel Wellington, owned by was within hearing distance and heard, still Mrs. Schuman, the defendant, and located in it is clear that she was not in a situation

that city. The alleged errors arise out of where she could make reply or denial. The the refusal of the trial judge to nonsuit and rule in such a case is stated by Chief Justice to direct a verdict for the defendant and upShaw in Commonwealth v. Kenney, supra, on the admission of evidence. In support of in this way: "If [the statement] be made in the first ground, is contended that there the course of any judicial hearing, he could was no legal evidence to support the plainnot interfere and deny the statement. It tiff's demand, which was based upon an alwould be to charge the witness with per leged contract or agreement between the parjury, and alike inconsistent with decorum ties for the payment of $150 for procuring a and the rules of law."

tenant for the premises named. The case The evidence admitted was illegal, and, as, showed that a parol agreement to pay the without it, the plaintiff failed to make out a commission named for the rental was made case, the judgment of the district court must between Edward Schuman, a son of the debe reversed, and a new trial granted.

fendant, and the plaintiff. The plaintiff's contention was and is that the son entered

into the agreement as agent for his mother, (76 N. J. L. 97)

who owned the property, and it follows that COLLOTY V. SCHUMAN.

the plaintiff's right to recover depends upon (Supreme Court of New Jersey. June 10, 1907.) | proof of such agency. The judge submitted 1. PRINCIPAL AND AGENT-PROOF OF AGENCY

this question to the jury, and it rendered a -ADMISSIBILITY-DECLARATIONS BY AGENT. verdict for the amount of the demand.

In a suit by a real estate broker for com In obedience to a rule of court, the judge missions on the rental of the defendant's hotel property, it appeared at the trial that the agree

bas certified that there was evidence to go to ment for the commissions was made by plaintiff the jury from which they could find liability, not with the defendant, who was owner of the and has certified therewith the evidence takproperty, but with her son; that plaintiff se

en at the trial. The case also shows that the cured a tenant and made a lease to her, which was signed not by the defendant, but by her

plaintiff, in support of his contention, offered as the lessor, without any reference to in evidence the lease he made of the premises the character in which he signed, whether as to a Mrs. Coleman, which was made in the agent or otherwise. In the effort to prove that

name of the son as lessor, and signed by him the agreement for commissions was made by the son as agent for his mother, he was called as

without any reference to the character in a witness by the plaintiff, and was permitted which he signed, whether as agent or otherto testify, over objection, that in signing the wise. Plaintiff then called as a witness the lease he represented his mother. Upon review, held the evidence was properly admitted.

son, who was permitted to testify over objec(Ed. Note.-For cases in point, see Cent. Dig.

tion that, in signing the lease, he was reprevol. 40, Principal and Agent, $ 40.)

senting Mrs. Schuman, the defendant. The 2. BROKERS-REAL ESTATE-ACTION FOR COM.

grounds of objection were that the evidence MISSION EVIDENCE-SUFFICIENCY.

was irrelevant, and that the agency could It further appearing by the evidence that not be proven by the agent himself. And it prior to the rental defendant and her son both at different times visited the office of plaintiff,

is the admission of this testimony which de and that the defendant gave instructions to the

fendant assigns as the second ground for replaintiff to rent the property upon which he act versal. We will deal with this ground for

son

error now before further discussing the other bonded indebtedness, it may, by a majority ground alleged. The evidence, if otherwise vote of its board of directors with the consent

of a majority of the stockholders holding 60 legal, was certainly relevant to the question

per cent. of the capital stock, increase the bondof agency. We think the evidence was also

ed indebtedness to an amount not exceeding twoadmissible upon well-settled rules. The prin thirds of the amount of the capital stock, mereciple involved must not be confused with

ly conferred additional powers on such corpothat which applies when the admissions or

rations as were not previously allowed to issue

bonds to the amount fixed by the act, and did declarations of an agent are offered in proof not restrict the privileges of those that already of his agency. The rule in support, of the possessed the power to create bonded indebtedadmission of the evidence objected to will be

ness to a greater amount than that named in the

act. found discussed in 2 Wharton L. of Ev. 949– 952, where the learned author says: “The Bill for an injunction by Charles T. Thatdistinction to be kept in mind is that, while cher against Oonsumers' Gas & Fuel Comparol evidence cannot be received to dis pany. Preliminary injunction denied. charge a party, it may be received when its

Defendant is a gas company of Atlantic effect is to show that another party, namely,

City, N. J., incorporated under the general the principal, is also bound.” See, also, Id.,

gas act of April 21, 1876 (P. L. 1876, p. 309; 920. And in Rice v. Gove, 22 Pick. (Mass.)

Gen. St. p. 1608), and is about to increase 158–160, 33 Am. Dec. 724, Justice Dewey,

its bonded indebtedness to an amount exspeaking of this principle as found in the

ceeding two-thirds of the amount of its capbooks and cases, says: “It seems to be broad

ital stock. Complainant is a stockholder, enough to support the position that, in an ac

and seeks to enjoin the proposed corporate tion against this principal, the authority of

action, upon the ground that the act of the agent to act may be proved by the agent

March 27, 1878 (P. L. 1878, p. 173; Gen. St. himself." See, also, 1 Am. & Eng. Ency. of

p. 1613, § 33), restricts the bonded indebted. L. (2d Ed.) 969. The evidence was properly

ness of gas companies to two-thirds of the admitted.

amount of their capital stock. The act of In addition to this proof, it also appeared

March 27, 1878, is as follows: that the plaintiff testified to his having received authority to let the premises from de

"An act to enable gaslight companies, incorfendant and her son; that they both came to

porated under the laws of this state, to his office at different times; that, when Mrs.

increase their bonded indebtedness. Schuman came, she instructed him to rent

“Approved March 27, 1878. the property; that he, in pursuance of those “Section 1. That whenever it may be necinstructions, rented the property at $3,000 essary for any gaslight company, incorporatper year; that of his commissions of $150 ed under the laws of this state, to increase there had been paid to him $42.50 in the their bonded indebtedness, for the purpose form of a check which he received by letter of increasing their business or for any other from Mrs. Schuman. The defendant produc purpose, then and in that case the said cored a letter from E. M. Colloty & Co. on cross poration, by a majority vote of its board of examination of plaintiff, and had him identi directors, after having obtained the consent fy it as written by his authority, which de of a majority of the stockholders representfendant offered in evidence. The letter read: ing at least sixty (60) per cent. of the cap “Mrs. Schuman. Dear Madam: Please mail ital stock, be and they are hereby authorized check of balance of commissions on rental of to increase said bonded indebtedness to any your property on South Virginia Avenue. amount not exceeding two-thirds of the We only ask commission on what rent you amount of the capital stock of said company, collect, which leaves a balance due of $82.50." the said increase as aforesaid to be governed It appears that no answer was made to the by the law and pursued under the mode diletter, and no denial of the facts therein stat rected by the act of incorporation of such ed was attempted at the trial. Mrs. Schu

gaslight company.man did not attend and testify. We think, under the circumstances, there

Thompson & Cole, for complainant. Bour. was no error in the refusal to nonsuit or to

geois & Sooy and C. L. Corbin, for defendant. direct a verdict for the defendant, and the result is that the judgment below must be LEAMING, V. C. (after stating the facts). affirmed, with costs.

The only question here involved is whether or not the act of March 27, 1878 (P. L. 1878, p.

173; Gen. St. p. 1613), above quoted, operates (72 N. J. Eq. 826)

to render it unlawful for a gas company THATCHER v. CONSUMERS' GAS & FUEL which is incorporated under what is known CO.

as the general gas company act (Gen. St. p. (Court of Chancery of New Jersey. May 1, 1608) to issue bonds to an amount in excess 1907.)

of two-thirds of the amount of its capital 1. Gas-OORPORATIONS-INCREASING BONDED stock. DEBT-STATUTES. Act March 27, 1878 (Gen. St. p. 1613, 8

A brief statement of the condition of the 33), providing that, whenever it may be neces

law at the time the act now in question was sary for any gaslight company to increase its enacted would seem to be essential to a per

*

fect understanding of the legislative purpose bonded indebtedness to a greater amount In its enactment.

than that named in the act. I think it clear, The general act for the formation of gas therefore, that the act can only be regarded companies was passed at the first session of as an act conferring additional powers on the Legislature after the constitutional amend such corporations as were previously restrictment became operative which prevented spe ed in the particulars referred to. cial legislation conferring corporate powers. A preliminary injunction will be denied. That act contains no provision touching the right of corporations organized under it to incur debts or to issue bonds or other

(72 N. J. Eq. 831) evidences of indebtedness. In the absence of CURTICE BROS. CO. V. CATTS et al. such provision, the right existed as an im (Court of Chancery of New Jersey. May 4, plied power. Lucas v. Pitney, 27 N. J. Law,

1907.) 221, 228; Fifth Ward Savings Bank v. First SPECIFIC PERFORMANCE-OONTRACT FOR SALE

OF PERSONALTY. Nat. Bank, 48 N. J. Law, 513, 523, 7 At). 318;

Where no adequate remedy at law exists, 4 Thompson on Corp. § 5697; 5 Id. 6050,

specific performance of a contract by defendants 6051. The right to execute a mortgage which will be decreed on their refusal to sell tomatoes should include corporate franchises in its grown on certain land as agreed where it lien could not exist as an implied power.

leaves the company helpless, except to whatever

extent an uncertain market may supply the That right existed in virtue of the general deficiency. corporation act which provided “that every (Ed. Note.-For_cases in point, see Cent. Dig. corporation, as such, shall be deemed to have vol. 44, Specific Performance, g 199.) power to mortgage any such real

Bill by the Curtice Bros. Company against or personal estate with their franchises."

James E. Catts and others. Decree advised In 1891, and again in 1897 and 1902, the Leg.

for complainant. islature passed supplements to the general gas act authorizing gas companies formed

Complainant is engaged in the business of under that act to execute mortgages on their

canning tomatoes, and seeks the specific per

formance of a contract wherein defendant real and personal property, including their franchises. P. L. 1891, p. 271; P. L. 1897,

agreed to sell to complainant the entire prop. 202; P. L. 1902, p. 277. These supple

duct of certain land planted with tomatoes. ments were, I think, wholly unnecessary.

Defendant contests the power of this court The act now in question was enacted two to grant equitable relief. years after the general gas act, but not as J. W. Acton, for complainant W. T. Hila supplement to it. At that time there exist-liard, for defendants. ed in this state a great number of gas como panies incorporated by special legislative LEAMING, V. C. The fundamental prinacts. An examination of these special acts ciples which guide a court of equity in dewill disclose that a great number of them creeing the specific performance of contracts contain provisions authorizing money to be are essentially the same whether the conborrowed, and bonds and other assurances to tracts relate to realty or to personalty. By be issued therefor to an amount not exceed reason of the fact that damages for the ing one-half of the amount of the capital breach of a contract for the sale of personalty stock. Others contain similar express powers are, in most cases, easily ascertainable and to the amount of two-thirds of the capital | recoverable at law, courts of equity in such stock; others contain provisions for borrow cases withhold equitable relief. Touching ing money and issuing securities without contracts for the sale of land, the reverse is any restriction as to amount; and others the case. But no inherent difference between contain no provisions touching the subject of real estate and personal property controls the indebtedness.

exercise of the jurisdiction. Where no ade . With this general view of the condition quate remedy at law exists, specific performof legislation at the time, the legislative pur ance of a contract touching the sale of perpose in the passage of the act in question sonal property will be decreed with the same seems apparent. The act is, by its title, an freedom as in the case of a contract for the enabling act. It is “to enable gaslight com sale of land. Prof. Pomeroy, in referring to panies, incorporated under the laws of this the distinction, says: "In applying these state, to increase their bonded indebtedness." | principles, taking into account the discretionThe provisions of the act enabling the in ary nature of the jurisdiction an agreement crease of bonded indebtedness necessarily as for the sale of land is prima facie presumed sume in the corporations to be affected by it to come within their operation, so as to be a pre-existing but restricted power to create subject to specific performance, but a contrary a bonded indebtedness. This clearly nega presumption exists in regard to agreements tives any possible legislative purpose to ap concerning chattels.” Pomeroy on Contracts, ply the operation of the act to corporations Specific Performance, & 11. already possessing the powers without re Judge Story urges that there is no reasonstriction, and therefore excludes from any able objection to allowing the party who is rational legislative intent such corporations injured by the breach of any contract for the as already possessed the power to create sale of chattels to have an election either to

take damages at law or to have a specific with their contracts leaves the factory help performance in equity. 2 Story's Eq. Juris. less, except to whatever extent an uncertain (13th Ed.) 8 717a. While it is probable that market may perchance supply the deficiency. the development of this branch of equitable The condition which arises from the breach remedies is decidedly toward the logical solu of the contracts is not merely a question of tion suggested by Judge Story, it is entirely the factory being compelled to pay a higher clear that his view cannot at this time be price for the product. Losses sustained in freely adopted without violence to what has that manner could, with some degree of aclong been regarded as accepted principles curacy, be estimated. The condition which controlling the discretion of a court of equity occasions the irreparable injury by reason of in this class of cases. The United States the breaches of the contracts is the inability Supreme Court has probably most nearly ap to procure at any price at the time needed proached the view suggested by Judge Story. and of the quality needed, the necessary toIn Mechanics' Bank of Alexandria v. Sexton, matoes to insure the successful operation of 1 Pet. (U. S.) 229, 305, 7 L. Ed. 152, Mr. Jus the plant. If it should be assumed as a tice Thompson, delivering the opinion of that fact that upon the breach of contracts of this court, says: “But, notwithstanding this dis nature other tomatoes of like quality and tinction between personal contracts for goods quantity could be procured in the open market and contracts for lands is to be found laid without serious interference with the eco down in the books, as a general rule; yet nomic arrangements of the plant, a court of there are many cases to be found where spe equity would hesitate to assume to interfere; cific performance of contracts, relating to but the very existence of such contracts propersonalty, have been enforced in chancery; claims their necessity to the economic manand courts will only view with greater niceity agement of the factory. The aspect of the contracts of this description than such as re situation bears no resemblance to that of an late to land." See, also, Barr v. Lapoley, 1 ordinary contract for the sale of merchanWheat. (U. S.) 151, 4 L. Ed. 58. In our own dise in the course of an ordinary business. state contracts for the sale of chattels have The business and its needs are extraordinary been frequently enforced and the inadequacy in that the maintenance of all of the condiof the remedy at law, based on the character tions prearranged to secure the pack are a istic features of the contract or peculiar situa necessity to insure the successful operation tion and needs of the parties, have been the of the plant. The breach of the contract by principal grounds of relief. Furman v. Clark, one planter differs but in degree from a 11 N. J. Eq. 306; Cutting v. Dana, 23 N. J. breach by all. Eq. 205, 271; Rothholz v. Schwartz, 46 N. J. The objection that to specifically perform Eq. 477, 481, 19 Atl. 312; Gannon v. Toole the contract personal services are required (N. J. Ch.) 32 Atl. 702; Hurd v. Groch (N. will not divest the court of its powers to pre J. Ch.) 51 Atl. 278, Duffy v. Kelly, 55 N. J. serve the benefits of the contract. DefendEq. 627, 629, 37 Atl. 597; Law v. Smith, 59 ant may be restrained from selling the crop Atl. 327, 68 N. J. Eq. 81.

to others, and, if necessary, a receiver can be I think it clear that the present case falls appointed to harvest the crop. well within the principles defined by the A decree may be advised pursuant to the cases already cited from our own state.

prayer of the bill. Complainants' factory has a capacity of By reason of the manner in which the facts about 1,000,000 cans of tomatoes. The sea on which this opinion is based were stipuson for packing lasts about six weeks. The lated, no costs will be taxed. preparations made for this six weeks of active work must be carried out in all features to enable the business to succeed. These

(76 N. J. L. 80) preparations are primarily based upon the CENTRAL R. CO. et al. v. BOROUGH OF capacity of the plant., Cans and other neces

ATLANTIC HIGHLANDS. sary equipments, including labor, must be

(Supreme Court of New Jersey. June 10, 1907.) provided and secured in advance with ref

TAXATION JURISDICTION OF BOROUGH. erence to the capacity of the plant during

A borough a boundary of which is highthe packing period. With this known capa

water mark of a bay has no power to tax land city and an estimated average yield of toma and piers thereon outside high-water mark. toes per acre the acreage of land necessary [Ed. Note.-For cases in point, see Cent. Dig. to supply the plant is calculated. To that vol. 45, Taxation, $$ 427, 431.) end, the contract now in question was made,

Certiorari by the Central Railroad Comwith other like contracts, covering a sufficient

pany and others against the borough of At. acreage to insure the essential pack. It

lantic Highlands to review an assessment for seems immaterial whether the entire acreage

taxes. Tax set aside. is contracted for to insure the full pack, or

Argued February term, 1907, before FORT, whether a more limited acreage is contracted

HENDRICKSON, and PITNEY, JJ. for and an estimated available open market depended upon for the balance of the pack. George Holmes and Wm. A. Barkalow, for In either case a refusal of the parties who prosecutors. Charles R. Snyder, for defendcontract to supply a given acreage to comply ant.

In this case the question of accretions and the extension of the shore on high-water line by alluvial deposits, or by filling in by the proprietors, is not before us, and hence does not have to be passed upon.

The tax must therefore be set aside.

(72 N J. Eq. 665) SCHMITT v. TRAPHAGEN. (Court of Chancery of New Jersey. May 9,

1907.) EQUITY_ISSUES SUBMITTED FOR TRIAL AT LAW-NEW TRIAL.

In a suit to quiet title, a motion for a new trial of an issue submitted for trial at law will be denied by the Court of Chancery without examining into the merits of the decision, since the conclusion of the court at law is appealable.

Bill to quiet title by Joseph Schmitt against Henry Traphagen. Heard on motion for new trial of an issue submitted to the court at law for trial. Denied.

Russ & Heppenheimer and M. T. Rosenberg, for complainant. Collins & Corbin and Augustus A. Rich, for defendant.

FORT, J. The borough of Atlantic Highlands was incorporated under the act of 1891 (P. L. 1891, p. 280). This act provided for a petition being presented to the court of common pleas containing a description of the proposed borough, and for an election by the people. The petition was required to recite the boundary lines of the proposed borough, and, if the election was favorable, the borough was established. Atlantic Highlands was incorporated under this act through a favorable vote of the people.

By the agreed facts in this case it is admit. ted that the boundaries as established in 1891, by petition as aforesaid, “at a stake standing at high-water mark on the shore of Sandy Hook Bay facing the easterly line of lands of the Atlantic Highlands Association at the point or place of the bluff known as Point Look Out, and running thence westerly along and following the line of the shore of the stream at present known as Wagner's creek.” Then the other courses and distances are recited, returning in a final course to the place of beginning. It is quite evident from this description that the northerly boundary line of the borough of Atlantic Highlands is to high-water mark of Sandy Hook Bay.

The writ in this case brings up an assessment for taxes by the borough against the prosecutors for the pier and land owned by the Navesink Railroad Company levied in 1905. It is admitted that the land taxed lies outside of high-water mark, running from high-water mark for a distance of about 1600 feet into the bay, and that the property consists of piers, etc., erected upon said land; the whole being taxed as real estate. We think this assessment must be set aside. The borough has no power to tax outside of its corporate limits. A municipality's right of taxation is limited to property within its territory. State v. Hull, 25 N. J. Law, 561; 1 Desty on Taxation, p. 483; Ft. Smith Bridge Co. v. Hawkins, 16 S. W. 565, 54 Ark. 509, 12 L. R. A. 487; Pacific Sheet Metal Works v. Roeder, 26 Wash. 183, 66 Pac. 428.

By the statute of 1891 the borough might be erected out of the township, and such was the case here. The township of which this borough previously formed a part was the township of Middletown, in the county of Monmouth. The boundary line of the county of Monmouth ran to a point outside of Sandy Hook to the center of Raritan Bay to the Middlesex county line, and is coextensive with the boundary line between the state of New Jersey and the state of New York at this point, and the boundary lines of Middletown township were coextensive at this line with those of the county of Monmouth. The land which is taken out of a township for the creation of a borough, of course, leaves in the township all not taken, and we think that the land here taxed by the defendant is only taxable by the township of Middletown.

GARRISON, V. C. This is a suit under the act to quiet title, and is a motion in such suit for a new trial of an issue directed by this court to be tried at law in accordance with the provisions of the statute.

It appears from the state of the case submitted to this court that at the trial in the Supreme Court the justice of the Supreme Court presiding thereat conceived that the sole question was one of law, and therefore directed a verdict in favor of Schmitt upon the issues tried before him. I have not myself examined the question which was passed upon at the trial in the Supreme Court, and, for the reason which I am about to state, the question, if it was one of legal title, was eminently one to be passed upon by the courts of law. It was conceived to be such a question by the eminent jurist presiding. Any independent investigation that I could make would result either in concurring in bis judgment, or in disagreeing with it, and, in the latter event, if I granted a new trial, the justice of the court sitting at such new trial would probably consider that he was bound by the same view of the law taken by the justice of the Supreme Court sitting at the first trial. It appears to me that the best solution of this question is to have an appeal taken as promptly as possible to the court of ultimate decision, and this can be as well done from the judgment directed by the justice of the Supreme Court as from any judgment upon the same question emanating from this court.

I have therefore determined to adopt the view of the law enunciated by Mr. Justice Dixon at the trial as my view, and to refuse a new trial.

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