It

sea avenue, south of Pacific, two blocks away; another on Montpelier avenue, with the location not given. The others are too far away to be of possible concern to complainant. may be that the two buildings referred to as a block from complainant's property are sufficiently near to have imposed upon complainant, or upon such person as may have been the owner of complainant's lot when these buildings were erected, the duty of appeal to this court for protection; but I think not. Their erection contrary to the terms of the covenants could have affected complainant's property but slightly, if at all. I cannot believe that, to escape the burden of the charge of abandonment of a restrictive covenant of this nature, it becomes the duty of a party who it entitled to enforce the covenant to interfere in any case where he has not at least a substantial interest to protect for himself.

The covenant forbidding more than one building to be erected upon each lot for dwelling house purposes is, in my judgment, broken by the erection of what is commonly known as a "double house"; that is, two houses under one roof. Such a structure is as much two buildings for dwelling house purposes as though separate roofs existed. The two dwellings may pass to separate owners, and the dividing wall become a party wall. Defendant's affidavits disclose ten such buildings on the tract. Most of these are on Atlantic avenue. One is on Chelsea avenue, not quite a block from complainant's property; and another on Artic avenue, nearly two blocks away. These, in my judgment, afford no evidence of complainant's abandonment of the covenants.

The claim that complainant has violated the covenants now sought to be enforced is based upon the fact that his porch extends beyond the 20-foot restriction line. As already stated, I do not deem that a violation of the covenants, in view of the fact that the covenants do not appear to have been regarded as applying to open porches.

I will advise a decree enjoining defendant from building the main body of his house nearer to either Artic or Chelsea avenues than 20 feet, and from erecting what has been referred to as a double dwelling house.

PURNELL v. PURNELL. (Court of Errors and Appeals of New Jersey. June 15, 1908.)

1. HUSBAND AND WIFE-PERSONAL RIGHTS AND DUTIES.

A wife cannot dictate to her husband their mode of living, or determine where they shall live, and compel him to come to her, but it is her duty to go to him.

the burden, when sued by the husband for divorce, to show that she changed her attitude, and notified the husband of her willingness to return, and the burden does not shift by merely showing that, without notification to the husband, she drove in a carriage with her child to his residence, and had an interview with him, and then rode back; the carriage remaining waiting for her during the call.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 361.]

3. SAME EVIDENCE.

In a suit by a husband for divorce on the ground of desertion, evidence held to justify a finding that the wife, after willfully and obstinately remaining away from the home provided for by the husband, did not make a bona fide effort to return to the home, and thereby defeat the suit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 446-449.]

4. SAME.

Where a husband has, by his conduct toward his wife, contributed in any degree to her original desertion, he must make such advances or concessions to the wife as may be reasonable to induce her to return to him; but, where it is manifest from the circumstances under which the desertion took place, or from the wife's temper and disposition, that an honest effort on the husband's part to terminate the separation will be unavailing, or, if successful in bringing the desertion to an end, would be so only temporarily, the duty of making advances or concessions does not exist.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 114.]

5. SAME-EVIDENCE-SUFFICIENCY.

In a suit by a husband for divorce on the ground of desertion, evidence examined, and held not to require the husband to make concessions with a view of terminating the separation, caused by the wife willfully and obstinately remaining away from the home which he had provided, authorizing a decree of divorce.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 446-448.]

Appeal from Court of Chancery.

From a

Petition for divorce by John W. Purnell against Maud Dickerson Purnell. decree granting a divorce, defendant appeals. Affirmed.

The following is the opinion of Stevenson, V. C., of the court below:

"In this case, as I indicated at the close of the argument, the testimony satisfies my mind that in the summer of 1902, this man and wife were living in a state of separation, wholly on account of the fault of the wife. She had, as I think the testimony clearly showed, willfully and obstinately remained away from the home which her husband provided for her. It was a good home, the providing of which was a full discharge of his duty to her. It was the home where he had lived, and where his work lay. The young wife preferred to live in New York. She declined to go down to this place, Pine Brook I think it was called, and share the life that her husband there lived. These are colored

2. DIVORCE-DESERTION-BURDEN OF PROOF.

A wife who refused to live in the home provided for by the husband, and who remained away, though the home was a proper one, has

was well educated. He is a teacher. He was earning a good, fair living, and he had a nice little home in this country place, and my mind rested very firmly upon the conclusion

that this wife was guilty of gross misconduct -an entirely inexcusable violation of her duty to her husband-in remaining away from him. She undertook to dictate their mode of life, to say where they should live, and to compel him to come to her, when it was her duty to go to him. The testimony indicates that it would have been difficult for him to live elsewhere. There might be great risk in his going elsewhere. The absence of the wife without justification naturally had brought about an estrangement between them. Their relations were not friendly, and this unfriendly state of mind, as I have said, was wholly due, in my judgment, to the misconduct of the wife. What they were quarreling about is indicated beyond any doubt by this brief note, produced here by the wife in the handwriting of the husband, which she received by mail July 15, 1902, to 'Maud Purnell-I am willing to support you only at the home I have provided. J. W. Purnell.' It does not indicate a very affectionate feeling in this husband towards his wife, but the wife was to blame for that. This note unmistakably shows what the position of this man was. 'You come to me, and live in the home that I have provided, and I will receive you. I will not support you elsewhere.' The note strongly indicates that she was seeking to compel her husband to support her where she wanted to live, apart from him. Now then, that being the situation of affairs, we have to deal with the single interview that is proved to have taken place between this couple after this note was written.

"In October, 1902, about three months after the note was written, the husband was maintaining this little home, a furnished house, entirely comfortable, and the wife appeared on the scene, without giving him any warning. She says she came to stay. She brought with her a suit case and a valise, and she brought with her the infant child of the couple. She came with her mother. She drove some 10 or 12 miles, and suddenly appeared at the house, and then the wife went in, was followed by her mother; and the driver, the witness William Oby, was near enough to hear what was first said, or what was said at the early part of the interview. Now the wife desires the court to believe that she went there in good faith, accepting the reasonable demand of the husband, indicated by this letter, that she should return to him; that she proffered herself ready to return, and the husband repelled her, and practically told her that he did not care where she went. The wife's mother is not produced, because she is dead. The husband gives an entirely different account of this interview. He says that the wife appeared suddenly with the child, and demanded that he should make arrangements for the support of the child. It is conceded that the wife went back to the carriage, got in, and the husband gave the driver $5, with which to pay the fare which was due from these pas

sengers, and the balance was to be given to the wife, and the driver says that he did give the balance to the wife later.

"Now, if the wife's story is true, no doubt the husband's action for divorce entirely fails. If the wife's story is true of what occurred in October, although she had been entirely to blame up to that time, although she was obstinately refusing, without any justification whatever,, to accept the home which her husband provided, yet if in October she went there, and tendered herself ready and willing to accept his proposal and live with him, that is the end of this man's case. After a very careful consideration of the testimony, however, I am satisfied that the wife's story is entirely false; that the husband's story is substantially true that the wife went to this place in October, not to make a bona fide effort to have a reconciliation and to accept the home which her husband had provided, but that she went there to demand that the husband should do something for her and her child. Now, in the first place, all the probabilities favor that view. I now treat the story of the wife and the story of the husband as flatly contradictory on this crucial point, and we have to discover where the truth lies. In my judgment the true conclusion from the evidence is that the husband is telling the truth. The wife being in the wrong, it seems to me that the burden of proof is upon her to show that she changed her attitude, and notified her husband of her willingness to return. I do not think that she shifts the burden by merely showing that, without any notification to her husband, she drove in a carriage, with her child and a suit case and a bag, to his residence and had an interview with him, and then drove back in the carriage, which remained waiting for her during the call. The important question is what took place between this couple upon this occasion. story that the wife tells seems to be a somewhat unnatural one. This note of July 15, 1902, shows precisely what the position of the husband was 'I am willing to support you,' he says-'I am willing to support you -but,' he adds, 'only at the home I have provided,' and that was within his right. This woman had this letter in her possession. Why should she secretly, without notice to the husband, pack her things in a valise, and the child's clothing in a suit case, and drive with her mother 10 miles, and drop in upon the husband at this time? She had this note in her possession, and knew perfectly well what his position was; that he was ready to take her back and keep her in this home which he had provided. She undertakes to make us believe that she went back secretly, without giving her husband notice, for fear that he would avoid her. In my judgment that is highly improbable. The wife produced here, as a witness to corroborate her, another colored man, the hack driver, apparently an

The

intelligent young man, who is friendly to her beyond all doubt. He knew her and was a playmate of hers at school, when they were children. He says that he did not know the husband. He drove this woman and her mother these 10 miles for the accomplishment of this purpose, whatever it was, and he stopped very near the door, and he heard, as he tells us, what occurred at the early part of the conversation between the wife and the husband, when she went in the door. While I cannot now from memory repeat what was said then, and I have no notes of the testimony, the substance of it is this: That he heard the wife make the bold demand: 'What are you going to do for me or for the child?' That exactly agrees with the husband's testimony that this woman came there, dropped upon him, not in order to accept his offer and live with him, but to demand what he would do about this child, which she was very anxious to have cared for. There are other circumstances in the case which corroborate the story of the husband, which I shall not detail.

"I kept this case under advisement in order to consider whether the husband was guilty of a violation of duty in not subsequently, after this interview, inviting his wife to return. It was upon that point alone that I kept the case for consideration, and now, having considered it, I am thoroughly satisfied that the husband was relieved of any duty to again invite his wife. The rule in this class of cases is laid down in the case of Hall v. Hall, 60 N. J. Eq. 469, 46 Atl. 866, by the Court of Errors and Appeals. I read from the opinion of Mr. Justice Gummere, on page 470 of 60 N. J. Eq., and page 866 of 46 Atl.: "That a desertion, in order to be obstinate, must be persisted in against the willingness of the injured party to have it concluded is declared by our cases; and ordinarily, when the husband has by his conduct towards his wife contributed in any degree to her original desertion, the law requires that he should evidence that willingness by making advances or concessions to his wife as might be reasonable to induce her to return to him.' It will be observed that the Chief Justice here is dealing with the case where the husband was in part responsible for the separation, whereas the case before this court now is one where the conclusion of fact is reached beyond doubt that the husband was not responsible, in any degree whatever, for the separation. Chief Justice Gummere proceeds: 'But the law does not impose this duty upon the husband, in every case, rigidly and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife's desertion. Where it is manifest from the circumstances under which the de

sertion took place, or from her temper and disposition, or from any other fact in the case, that honest effort on the husband's part to terminate the separation would be unavailing, or if successful in bringing the desertion to an end, would be so only temporarily, the duty of making it does not exist'-citing cases. That is the rule which I think disposes of the present case. In my judgment, under the circumstances, this husband had no reason to suppose that any bona fide invitation on his part to the wife would bring her back. She had persistently, during a long period of time, obstinately maintained the position that she would not come to him. She wanted him to provide for her somewhere else. She had his letter, which was a standing invitation to return. "The conclusion is that a decree for divorce will be advised."

Pierre F. Cook, for appellant. Wilson, for respondent.

Edmund

PER CURIAM. The decree under review herein should be affirmed, for the reasons expressed by Vice Chancellor Stevenson.

(76 N. J. L. 580)

BERNADSKY v. ERIE R. CO. (Court of Errors and Appeals of New Jersey. June 15, 1908.)

1. MASTER AND SERVANT-INJURIES TO THIRD PERSONS-TESTIMONY OF SERVANT-ADMIS

SIBILITY.

In an action against a railroad company and its servant for an assault committed by such servant, his testimony is admissible on the question of the company's liability.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1270, 1271.] 2. DAMAGES-MENTAL SUFFERING.

In an action for personal injuries from an assault committed by defendant, mental suffering resulting from the injuries is a proper element of damage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 100.]

3. EVIDENCE-OPINION EVIDENCE-DANGER OF HYDROPHOBIA.

In an action for personal injuries from an assault, and from the bites of a dog, expert testimony showing the possibility of hydrophobia was improperly admitted, where about two years had elapsed since the bite, and there were no symptoms of hydrophobia, and the dog did not have the disease.

4. APPEAL AND ERROR-HARMLESS ERRORADMISSION OF TESTIMONY-CURE BY INSTRUCTION.

In an action for personal injuries from an assault and the bites of a dog, the erroneous admission of expert testimony as to the possibility of hydrophobia was rendered harmless by an instruction that such testimony should not be considered in determining the damages. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4178-4184.]

Error to Supreme Court.

Action by John Bernadsky against the Erie Railroad Company. Judgment for plainAffirmed. tiff, and defendant brings error.

The per curiam opinion of the Supreme Court is as follows:

"The plaintiff brought suit to recover damages for personal injuries sustained by him on November 6, 1902, and resulting from an assault committed on him by the defendant Burns, while the latter was in the employ of the defendant the Erie Railroad Company. The plaintiff was about seven years of age at the time of the alleged assault. At the trial of the cause the jury rendered a verdict in favor of the plaintiff, and judgment was entered thereon.

"The defendant the Erie Railroad Company sues out this writ of error, and assigns, first, that there was no evidence upon which the verdict against it could be sustained. The case made by the plaintiff was that, while he was in the yards of the defendant company at Weehawken, he was attacked and beaten with a stick by Burns, and was bitten by a dog belonging to Burns, which the latter 'sicked' upon him. The contention on the part of the defendant railroad company is that there was nothing in the proofs to show that, in committing the alleged assault, Burns was acting within the scope of his employment, as its servant. We think the jury could properly find, from the testimony of the plaintiff, and of the defendant Burns, that the plaintiff was a trespasser in the company's yard; that Burns, in the discharge of his duty as watchman, undertook to drive him off; that in doing so he committed the assault referred to; and that this abuse of the plaintiff was unnecessary and excessive. It is contended, on behalf of the defendant in error, that the testimony of Burns could not be considered by the jury in determining the question of the liability of the railroad company. No reason is given by counsel in support of this contention, and it seems to us to be without merit.

"It is also assigned for error that the court improperly permitted the jury, in determining the compensation to which the plaintiff was entitled (in case a verdict should be found in his favor), to consider the mental suffering subsequently undergone by the plaintiff as a result of the attack upon him. There was no error in this judicial action. In the case of Consolidated Traction Co. v. Lambertson, 60 N. J. Law, 457, 38 Atl. 684, it is declared by the Court of Errors and Appeals that in actions for personal injuries the mental suffering resulting from the injuries is a proper element of damages to be taken into consideration by the jury.

"The only other assignment of error argued before us is directed at the admission of expert testimony showing the possibility of hydrophobia resulting from the bites of the dog. We concur in the view of counsel that this testimony was improperly admitted; but the error was rendered harmless by the instruction of the judge to the jury, which was as follows: 'With respect to the danger of hydrophobia occurring, the case is barren of anything from which you would be entitled to assess any damages on that item. The

boy has not had hydrophobia. The dog did not have hydrophobia, either at the time of biting him, or afterwards, and the dog is dead. So far as the dog is concerned, the hydrophobia question is settled. So far as the boy is concerned, it is two years since the bite was inflicted, or nearly two years, and nothing has transpired, and you cannot imagine damages in favor of anybody. So your estimation of damages would be properly restricted to those points that I have adverted to as being proper to consider under the circumstances.'

"Finding no harmful error, the judgment under review must be affirmed."

Collins & Corbin, for plaintiff in error. Weller & Lichtenstein, for defendant in er

ror.

PER CURIAM. The judgment of the Supreme Court should be affirmed, for the reasons expressed in the opinion delivered in that court.

(76 N, J. L. 502)

COLLOTY v. SCHUMAN. (Court of Errors and Appeals of New Jersey. June 15, 1908.)

1. WORK AND LABOR-SERVICES OF Broker. In an action for services as a real estate agent in procuring defendant a tenant for her hotel, plaintiff was not required to prove a special contract of employment, but could recover on proof of rendition of the services at defendant's request under circumstances negativing the idea that they were gratuitous, from which the law would imply a promise to pay their reasonable value.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Work and Labor, § 3.] 2. CONTRACTS

CON

ACTION PLEADING TRACT, EXPRESS OR IMPLIED. Where plaintiff's state of demand in an action for services was silent as to whether the contract sued on was express or implied, plaintiff was entitled to recover on proof of either an express or implied contract to pay for his services.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1740-1748.]

3. BROKERS - ACTION FOR COMPENSATION QUESTION FOR JURY.

Where, in an action for services of a real estate agent in procuring defendant a tenant for her hotel, plaintiff claimed that his services were reasonably worth 5 per cent. of the rent for the term, evidence that defendant paid plaintiff 5 per cent. of an installment of rent was sufficient to require submission to the jury of the question whether the sum so paid was in full compensation for plaintiff's services, or a recognition that plaintiff was entitled to 5 per cent. of all the rents collected.

Error to Supreme Court.

Action by Eugene M. Colloty against Kate Schuman. Judgment for plaintiff was affirmed by the Supreme Court (66 Atl. 933), and defendant brings error. Affirmed.

Clarence L. Cole, for plaintiff in error. H. Chandler, for defendant in error.

Eli

GUMMERE, C. J. This action was originally brought in the district court of Atlan

tic City to recover the sum of $107.50, which, according to the averment of the state of demand, was due to the plaintiff, Colloty, from the defendant, Schuman, upon a contract, by the terms of which the latter "undertook and promised to pay said plaintiff for procuring a tenant for the Hotel Wellington" in Atlantic City. The proofs submitted at the trial on behalf of the plaintiff (who was a real estate agent) were to the effect that the defendant called upon him with her son and requested him to try and rent the hotel for her; that she was the owner of the hotel property; that he subsequently secured a tenant for it at an annual rent of $3,000, and that the tenant was put in possession by the defendant; that the defendant's son agreed with him that he should receive a commission of $150 for his services, being 5 per cent. of the annual rent; that he collected $850 on account of the rent, and turned it over to the defendant, and that she then paid him 5 per cent. of that amount, viz., $42.50. It was further proved that afterwards the defendant's son collected $1,400 more on account of the rent, and that no commission on that amount was paid to the plaintiff, and that he received no further payment from the defendant for his services in procuring her a tenant. There was a verdict and judgment in favor of the plaintiff. On appeal to the Supreme Court, many exceptions taken at the trial were argued, but were all considered to be without merit, and the judgment of the district court was affirmed. The present writ of error brings up the judgment of affirm

ance.

The only assignment of error argued before us, and the only one, therefore, which requires consideration at our hands, is directed at the adjudication of the Supreme Court that it was not error in the district court to refuse to nonsuit the plaintiff, or to direct a verdict for the defendant. The argument in support of this assignment is that the plaintiff's right to recover depended upon the existence of an express agreement made by the defendant, either personally or through a regularly authorized agent, to pay the plaintiff $150 for his services, that the only proof of such a contract was the agreement between the plaintiff and the defendant's son, and that there was no evidence of any authority on the part of the son to bind his mother by such an agreement. But this argument rests upon the fallacy that the plaintiff cannot recover except upon proof of an express contract. His right of recovery is not so limited. Proof of services rendered by him at the request of the defendant, under circumstances which negative the idea that they were gratuitous, entitles him to compensation for those services from the defendant, notwithstanding the absence of an express promise by her to pay for them. A promise to pay what they are reasonably worth is implied from her request to him to

render them. This is elementary. It is contended that the plaintiff below was not entitled to recover on a quantum meruit, however, for the reason that the state of demand counts solely upon an express contract. But this is not the case. The pleading is silent upon the question whether the contract sued upon is an express or an implied one. The refusal to nonsuit the plaintiff, and the overruling of the motion to direct a verdict in favor of the defendant, were therefore, each of them, proper, if there was any evidence to show that the plaintiff had not been paid what his services were reasonably worth. Such evidence, we think, is to be found in the fact that the defendant paid the plaintiff 5 per cent. on the installment of rent actually collected by him. It was for the jury to say whether, under all the circumstances proved in the case, this was a full compensation for his services, or whether it was a recognition on the defendant's part that he was entitled to receive as compensation for his services 5 per cent. of all rents actually collected. The judgment under review will be affirmed.

(74 N. J. E. 521)

EDISON et al. v. MILLS-EDISONIA. (Court of Chancery of New Jersey. June 1, 1908.)

1. CORPORATIONS-CORPORATE NAME-RIGHT TO USE INJUNCTION-BILL.

Where, in a suit by Edison and corporations manufacturing and selling, by his authority, phonographs and kinetoscopes invented by him, seeking to restrain the use of the word "Edisonia" in the name of defendant corporation, engaged in conducting musical, phonographic, and moving picture exhibitions, the bill alleged that because of said inventions by Edison, and that his name was universally associated with them in the public mind, and the fact that the Edison phonograph was manufactured and sold by complainant phonograph company, and because the kinetoscope was manufactured and sold by complainant Edison Manufacturing Company, and because of the use of "said" kinetoscope and phonographs by defendant, the public was led to believe that the arcades maintained by defendant were conducted by complainants, and that they were interested or in some way connected therewith, it would be presumed that the instruments exhibited in defendants' arcades were Edison machines.

2. PATENTS-RIGHT TO USE PATENTED ARTICLES-DESCRIPTION BY NAME OF PATENTEE,

Where defendant corporation became the owner, or legally possessed, of patented Edison phonographs and kinetoscopes, it was entitled to use such machines for public entertainment, and to advertise that the machines used were in fact Edison machines, both under the rule authorizing a statement of the truth in the conduct of a business, and the law with reference to the use of patented articles.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, §§ 305, 329.]

3. TRADE-MARKS AND TRADE-NAMES-RIGHT TO USE NAME DESCRIPTION BY TRADENAME OR NAME OF PATENTED ARTICLE.

The right to describe an article by the trade-mark or patented name passes by implication of law to the person who purchases the article from the inventor or his assignee while