sents is in writing, and consists of the agreement between him and the defendant dated April 1, 1889. That instrument, after defining in limited terms his power as "general state agent" of the defendant in New Jersey, proceeds as follows: "Fifth. The authority of said agent shall extend no further than is above stated. He shall not make, alter, nor discharge any contract." This lack of power is made distinctly apparent in the policy itself, which says: "No agent of the association bad authority to make, alter, or discharge contracts, and no alterations of the terms of this contract shall be valid unless such alterations shall be in writing, and signed by the president or vice president and one other officer of the association." The conclusion seems inevitable that Diefendorf could not bind the defendant to any stipulations other than those set forth in the policy. Catoir v. Insurance & Trust Co., 33 N. J. Law, 487. Consequently this policy never became a valid contract.

2. The plaintiff seeks to maintain her suit upon a contract preliminary to the issuance of the policy. The pertinent facts are these: On December 14, 1889, James McClave made application in writing to the defendant to become one of its members, and to have issued to him a certificate or policy of insurance on his life in the sum of $5,000, payable on his death to the plaintiff. The application contained this clause: "The applicant further agrees that under no circumstances shall the certificate or policy bereby applied for be in force until the actual payment to and acceptance of the first annual dues by the association, and actual delivery of the certificate or policy to the applicant, with receipt for the payment of the first annual dues, signed by the president, secretary, or treasurer of the association, during the lifetime and good health of the applicant." On presenting this application, James McClave paid the defendant $20 as an admission fee, (not annual dues,) and the defendant gave to him a writing, of which the following is a copy: "Mutual Reserve Fund Life Association. "Amt. received. $----,

"Amt. applied for. $5,000. "Potter Building, 38 Park Row, New York. "Received from James McClave, of Newark N. J., twenty dollars for the admission fee upon an application to the Mutual Reserve Fund Life Association, for a policy of insurance for five thousand dollars, subject to its provisions and the constitution or by-laws, rules, and regulations of the association. The above payment is on account of the admission fee, $20. Dated at Newark, Dec. 14, 1889.

"It is hereby expressly understood and agreed that, if the application be not approved and accepted by the officers at the home office of the association in the city of New York, it shall be held that no benefits have ever been created or acquired under this receipt, and the amount paid hereon will be refunded by me on return of this receipt. J. B. Faitoute. Agt." On the side of the receipt is the followIng:

"Notice to Applicant. Should a policy

of insurance not be received by you within twenty days, or your money not be returned to you upon presentation of this receipt, you are requested to notify the home office, stating the amount paid, when and to whom paid.

"On January 9, 1890, the application was approved and accepted by the officers at the home office of the association, and McClave was then alive and in good health. The plaintiff insists that under the lan. gauge of the receipt of December 14, 1889, it must be inferred that some benefits were created and acquired on January 9, 1890, by the approval and acceptance of the application as above stated, and that these benefits are such as will support the action. The contention that certain benefits thus arose is at least plausible, and perhaps is sound. But the nature of those benefits must be ascertained from the prior negotiations of the parties. Looking at them, it will be seen that the benefits to accrue could only be a right tɔ a contract of insurance according to the terms of the application and receipt. No other terms had then been agreed upon by the parties. Those terms, as we have noticed, required the actual payment of the first annual dues by the applicant, and the delivery of the policy by the associa. tion, during the good health of the applicant. These obligations were concurrent, and therefore subject to the common rule of law that neither could legally demand performance by the other without himself offering to perform. Hence the benefit accruing to the applicant on approval of his application was a right to tender his annual dues while he was in good health, and demand a policy. Had he made such a tender, he would have been entitled to a policy, and that might have been deemed equivalent to a contract of insurance, upon which, after loss, a recovery might be had at law. Tayloe v. Insurance Co., 9 How. 390, 405. But no such tender was made, and consequently no right of action came into being. The Essex circuit court is advised that neither upon the policy nor upon the receipt is the plaintiff entitled to recover.

Feb. 24,

HAZELTINE v. WILSON. (Supreme Court of New Jersey. 1893.)

LIABILITY OF AGENTS-STATUTE OF FRAUDS.

1. Whether an agent making a contract for the benefit of another is liable upon a parol promise to be responsible depends upon the fact whether the credit is given to him or the principal. Both cannot be held as original debtors.

2. If an agent purchases goods for a principal, whom he discloses, with a promise that he will be responsible, he thereby simply becomes responsible for the default of his principal. His promise is collateral, and cannot be enforced, unless in writing.

3. But if the vendor asks the agent to whom he must look for payment, and the agent replies that the vendor must look to him, the agent becomes the original debtor; and, the credit being given to him, his promise is not within the statute of frauds.

4. In this case, although the service was rendered by the plaintiff at the request of the defendant, for the accommodation of a third

person, the agreement of the defendant that the plaintiff should look to the defendant for compensation for. the services to be rendered was an original, and not a collateral, promise. (Syllabus by the Court.)

Certiorari to court of common pleas, Mercer county; Woodruff, Yard, and Wright, Judges.

Certiorari by Addison H. Hazeltine against Samuel K. Wilson to review an action by plaintiff against defendant in the district court, in which judgment of nonsuit was affirmed on appeal to the Mercer pleas. Judgment of nonsuit set aside.

Argued November term, 1892, before VAN SYCKEL and MAGIE, JJ.

John H. Backes, for plaintiff. Howell & Bro., for defendant.

VAN SYCKEL, J. This action was instituted in the district court of the city of Trenton to recover for services rendered, and money expended. The plaintiff was nonsuited in the district court, and that judgment was affirmed on appeal to the Mercer pleas. The case is in this court, on certiorari, for review.

The facts of the case, as shown by the uncontroverted testimony, are as follows: Samuel K. Wilson the defendant, applied to one Bailey in the city of Trenton, for one Peter Keenan, for a loan of $8,500 to Keenan, to be secured by a mortgage on Keenan's real estate. Bailey made a written application to the Mutual Life Insurance Company of New York for the loan, to which he signed the name of Keenan as applicant. After the lapse of a few days, Wilson called again on Bailey, and inquired of him how he was getting along with the loan to Keenan. Bailey informed him that the loan had been granted, and Wilson then asked what the cost would be. Bailey told him he would charge 1 per cent. commission, and whatever the charge would be for the preparation of the papers and the examination of the title. Wilson asked him to ascertain what that would be, and, as Wilson was about to leave, Bailey said, "Mr. Wilson, to whom shall I look for the expenses?" Wilson replied, "I am getting this money as an accommodation for Peter Keenan, but I will be responsible." Through Bailey, the matter was referred to Hazeltine, the plaintiff, to make the searches and prepare the papers. Hazeltine advised Bailey what the expenses would be, and Bailey informed Wilson. Wilson told Bailey that it was too much; that Keenan could not stand it,-but told him to go on, and have the papers prepared, and get the loan through. Thereupon Bailey directed Hazeltine to render the services for which this suit was brought. Bailey further testified "that Wilson represented Keenan all the way through." The plaintiff made the searches, and prepared the necessary papers; and, on their presentation for execution, Wilson informed Bailey that he would not take the loan, nor pay the plaintiff for the searches and papers. In defense to the suit brought by Hazeltine against Wilson to recover this claim, Wilson set up that his promise to be re

sponsible was a collateral parol engagement, within the statute of frauds; and the courts below, having taken that view of the law, nonsuited the plaintiff.

The law upon this subject is exhaustively discussed by Chief Justice Green aud Mr. Justice Whelpley in Hetfield v. Dow, 27 N. J. Law, 440. In that case the lumber was purchased by Dow for the benefit of one Gibson. The rule laid down by the court in that case was that, if the credit was given to Dow in consequence of any promise made by bim, then he was liable as the original debtor; but, if the sale was made on the credit of Gibson, then he was the original debtor, and the liability of Dow was collateral, and could not be enforced, unless it was in writing. All the judges agreed that both Dow and Gibson could not be original debtors. This case, therefore, will be solved by determining to whom, according to the admitted facts, credit was given. Wilson applied to Bailey for the loan to Keenan, but he did not say that he would take it. The contract was not closed. He wanted to know the cost. Bailey was not authorized to proceed with it, either on Wilson's credit, or on that of Keenan; and at this juncture Bailey asked Wilson to whom he should look for the expenses. By this inquiry he plainly told Wilson that he wanted to know to whom he was to give credit. If, in reply, Wilson had said, "I am the agent for Keenan, and am authorized by him to procure the loan, but I will be responsible," then the undertaking of Wilson would have been collateral. It would have been a promise to answer for the default of Keenan. It would be like the case of an agent purchasing for the benefit and on behalf of a principal, whom he discloses, with a promise by the agent that he will be responsible. The responsibility thus assumed is simply an agreement that the principal will pay,and that the agent will be responsible for the failure of his principal to do so. His promise is collateral, the principal being the debtor. The vendor can in such case recover from the prin cipal, and, if so, no action can lie against the agent, according to Hetfield v. Dow. But in reply to this question, asking to whom the credit was to be given, Wilson said, "I am getting this money as an accommodation for Peter Keenan, but I will be responsible. This was, in effect, an agreement that Bailey was to look to Wilson; that the credit was to be given to Wilson, who wished to accommodate Keenan by getting a loan for him. It must be observed that up to this point Wilson had not decided to take the loan. He had agreed that Bailey should look to him for the expenses, but, before he decided to conclude the arrangement, he wished to know what the cost would be. He has not stated to Bailey, nor does it appear that he was authorized by Keenan to state, that he would take the loan on the terms of paying such expenses. The matter, thus far, was unconcluded. When, subsequently, Bailey told Wilson what the expenses would be, Wilson said "that Keenan could not stand it, but that Bailey should go on, and get the loan through.' The reasonable inference to be drawn from

"

perceived, the city will be bound absolutely to pay a nightly sum for a period of five years. Now, the common council has power, under section 40, subd. 19, of the charter of 1872, (P. L. 687,) to provide street lamps for and to light the streets, either by gas or other material, and, in section 45 of the same act, the right to establish lamp districts. The ordinance to direct assessments for the year 1892 is put in evidence, and in it is an item of $20,000 for lighting streets and public highways. The amount which would be due under the contract which would result from an acceptance of this ordinance would exceed $50,000. The amount of debt which would be thus incurred by the city would be largely in excess of this appropriation, as this appropriation is for one year only, and the liability under the contract extends over a period of five years. The facts thus apparent bring the case within the control of the rule laid down in the case of Waterworks Co. v. Read, 50 N. J. Law, 666, 15 Atl. Rep. 10. This ordinance, to quote the language of Mr. Justice Dixon in the last-mentioned case, fixed a limit of expenditure within which the obligation incurred cannot possibly be confined. Under the statute of 1876, (Revision, p. 1294,) as interpreted in Halsted v. State, 41 N. J. Law, 552, and in Waterworks Co. v. Read, supra, that part of the ordinance which extends the contract over the last four years is void. What effect does this result have upon the remaining part of the ordinance? The answer to this question depends upon the severability of the void part from the rest of the ordinance. It is obvious that the common council regarded the whole ordinance us inseparably connected. This appears from the last section, which provides that it shall not be binding, nor shall any poles be erected, until its terms shall be accepted. As the void part is thus the essential_part of the ordinance, the whole falls. Davis v. Town of Harrison, 46 N. J. Law, 79, and cases cited on page 86.

1. MacDonald was appointed clerk in the city treasurer's office of the city of Newark by the committee on finance of the common coun cil under authority (conferred by supplement to the charter) to employ such clerical help and assistance in that office as might be necessary to secure a prompt and efficient performance of the duties imposed on the treasurer. His employment was for no specific time. Held, that he held a public position under the government of the city, the term of which was not fixed by law, within the provisions of the "Act in regard to honorably discharged Union soldiers and sailors holding public office or posi tion," approved April 9, 1889.

2. Morris was appointed clerk in the city clerk's office by the same committee, but the charter gave the committee no power to employ clerical help and assistance for that officer. He was not appointed by the common council, and there was no sufficient evidence that his

invalid appointment had been ratified. Held, that he did not hold a public office or position under the government of the city, within the provisions of the act above mentioned. (Syllabus by the Court.)

Certiorari by Frank N. MacDonald against the city of Newark to test a resolution of the common council removing prosecutor from his office of clerk of the city treasurer's office. William W. Morris against same, to test a resolution of the common council removing prosecutor from his office of assistant to the city treasurer. In the MacDonald Case the proceedings are vacated. In the Morris Case the writ is dismissed.

Argued November term, 1892, before VAN SYCKEL and MAGIE, JJ.

Coult & Howell, for prosecutor. Guild, for city of Newark.

W. B.

MAGIE, J. MacDonald, the prosecutor, was on March 19, 1891, elected clerk in the city treasurer's office" of the city of Newark by the committee on finance of the common council. This action of the committee on finance was taken under the authority of section 17 of a supplement to the charter of Newark, approved March 7, 1873, (Laws 1873, p. 322,) which empowers that committee from time to time to "employ such clerical help and assistance in the offices of the comptroller, city treasurer, auditor of accounts, and city surveyor as may be necessary to secure a prompt and efficient performance of the duties imposed upon said officers." It was, however, expressly declared that the common council should at all times, whenever they chose to exercise the same, have control over such appointments. The certiorari in this case has brought before us a resolution of the common council of February 17, 1892, declaring that the term of office or employment of all city officers, clerks, and other employes whose appointment or employment was vested in the council should terminate March 15, 1892, and also the action of the committee on finance of June 21, 1892, appointing anoth. er person "assistant to the city treasurer" in place of prosecutor. Prosecutor was an honorably discharged Union soldier, who served in the war of the Rebellion, and he contends that he has been removed from his position without a hearing, and for no good cause, contrary to the provisions of the "Act in regard to honorably discharged Union soldiers and sailors holding public office or position, approved April 9, 1889. (Laws 1889, p. 231.) By the terms of that act, such an honorably discharged soldier holding a public office or position under the government of any city, whose term of office is not fixed by law, and who receives a salary from the city, may not be removed from such office or position except for good cause shown after hearing. It is conceded that no hearing was accorded to prosecutor, and no cause was assigned for his removal. The contention on the part of the city is that he did not hold a public office or position within the meaning of the act relied on by him. He was not a "subordinate officer" appointed by the cominon