that the decree appealed from might have been a little clearer in its phraseology, but that is a verbal matter only, and will occasion no practical difficulty in the conduct of the executors and trustees. The decree appealed from will therefore be affirmed.

Decrec affirmed, costs to be paid by the trustees out of the estate in their hands.

(93 N. J. Law, 189)

MCAULIFFE v. METROPOLITAN LIFE
INS. CO. (No. 86.)

pute that before the date of each policy the insured had had chronic bronchitis.

3. Each policy contained a clause making it void if the insured before its date had been attended by a physician for any serious disease or complaint, and it appeared without dispute that deceased before such date had been attended by a physician for chronic bronchitis.

Usually in this class of cases the question is whether the insured has been guilty of fraud, or has made some false representation as an inducement to the issue of the policy. Such was the situation in Guarraia v. Insurance Co., 90 N. J. Law, 682, 101 Atl. 298,

Court of Errors and Appeals of New Jersey. relied on by respondent. But in the case at

June 20, 1919.)

(Syllabus by the Court.)

bar the determinative factor by the language of the policies is the existence of a physical condition in the insured, without any referPOLI-ence either to his knowledge of it or his statements on the subject. If at the date of any policy he was not in sound health, the policy

INSURANCE 668(7)-ACTION ON LIFE
CY HEALTH OF INSURED QUESTION FOR
JURY.
In an action on a life insurance policy, testi-

never became a contract; if before the date of either policy he had had chronic bronchitis, or had been treated by a physician for any serious disease or complaint, the contract, if it came into being, was voided.

mony of the widow of deceased that her husband "was not sick" before date of the policy, "never had any trouble for five years, as far as she knew, except to get a cold," held insufficient to raise a jury question in contradiction to testimony of the attending physician that he had The evidence of the attending physician of at such time treated deceased for chronic bron-deceased, confirming his statements in the chitis and that he was afflicted by that disease. written proofs of death was that he had White, J., dissenting. treated the man for chronic bronchitis and asthma as early as November, 1915, and in January and March, 1916, and March, 1917. The policies were dated respectively November 20, 1916, March 12, 1917, and March 26,

Appeal from Supreme Court.

1917.

There was no contradiction of this testi

Action by Mary McAuliffe, administratrix of Patrick McAuliffe, deceased, against the Metropolitan Life Insurance Company. Judgment in district court for plaintiff, and from a judgment of affirmance by the Su-mony. The plaintiff, widow of deceased, testified that her husband "died from a cold, as preme Court, defendant appeals. Judgments far as I know"; that he "was not sick"; nevreversed, that a venire de novo issue. er had any trouble, as far as she knew, for ap-five years, except to get a cold. Such testimony has no evidential value, justifying its

Randolph Perkins, of Jersey City, for pellant.

Thomas R. Armstrong, of Jersey City, for submission to the jury on the question whethrespondent.

PARKER, J. The Supreme Court affirmed the judgment of a district court in a suit on three policies of insurance upon the life of Patrick McAuliffe, deceased, and the propriety of this affirmance is the question before us. We conclude that it was erroneous, upon two grounds.

1. The policies, all alike, contained a clause that "no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health"; and it appeared without dispute that on the respective dates of the policies the insured was not in sound health.

2. Each policy contained a clause making it void if the insured before its date "has had any pulmonary disease, or chronic bronchitis, and it appeared without dis

er deceased had chronic bronchitis or was in sound health. He could well have been in unsound health, and have had chronic bronchitis, without being characterized as "sick." A reading of her testimony makes it plain that by "sick" she meant sick in bed, or at least unable to work.

This testimony is of much the same character as that which we declared to be without value in Howe v. Erie Railroad Co., 78 N. J. Law, 683, 685, 686, 76 Atl. 979. It constituted no substantial contradiction of the physician's testimony, and in consequence the court should have directed a verdict as requested, on the grounds specified above.

Let the judgment of the Supreme Court and that of the district court be reversed, that a venire de novo issue.

WHITE, J., dissenting.

(93 N. J. Law, 240)

(107 A.)

BOARD OF EDUCATION OF ROXBURY
TP. IN MORRIS COUNTY v. KERR.

ings of fact are supported by the testimony. A short narrative of the facts, as found by the trial court, will clearly show the situa

(Court of Errors and Appeals of New Jersey. tion between the parties and the reasons for

June 20, 1919.)

the judgment entered by the trial court, against the appellant. The contract was datCONTRACTS 261(5) - PREVENTION OF PER- ed March 2, 1916. The consideration was FORMANCE-RIGHT TO RESCIND. $3,600. It provided for the installation of a complete system of steam heating and ventilating apparatus, in the high school building to be erected at Succasunna, in Morris county, by September 1, 1916; "provided the general construction of the building has been completed in time for proper installation, and completion of heating and ventilating work on the date aforesaid."

Where defendant was to install a complete system of heating and ventilating in a school building which plaintiff was to erect by a certain date, "providing the general construction of the building has been completed in time for proper installation on the date aforesaid," but plaintiff did not get the building ready for installation until about a year after said date, defendant had the right to treat the contract as abandoned and rescind it.

*

*

*

Appeal from Supreme Court.

Action by the Board of Education of the Township of Roxbury in the county of Morris against James T. Kerr, trading as J. T. Kerr & Co. From an adverse judgment, plaintiff appeals. Affirmed.

King & Vogt, of Morristown, for appellant. Benjamin W. Ellicott, of Dover, for respondent.

On the same day, the appellant entered into a contract with Gardner & Co. for the erection and completion by September 1, 1916, of the school house, in which this heating and ventilating system was to be installed by the respondent.

In December the respondent inspected the building and found that it was not sufficiently progressed for him to commence his work. No foundation had been constructed on which to place the boiler. He wrote a letter to the architect, in which he said:

"What are you going to do about this, and then when are you going to get this building in shape to proceed? An early reply will oblige." No reply was received to this letter.

On July 3, 1917, respondent wrote a letter to the appellant offering to go on with the work for cost, plus 10 per cent. On July 31, 1917, a three days' notice to proceed with the work was served on the respondent, as called for under the terms of the contract. On August 2, the respondent replied:

"Inasmuch as you have failed to put the building in such condition that I could complete the contract within the time and at the price agreed upon, I of necessity abrogated it long since, thus leaving it to you to pursue such course as you may desire."

PER CURIAM. The suit in this case was instituted by the appellant to recover damages for the breach of a written contract, against the respondent, the contractor, for a failure to install a steam heating and ventilating apparatus, in a school building about to be constructed. The respondent filed a counterclaim, demanding $500 profits on the work, on account of the appellant's failure to complete its part of the work within the time in said contract specified. The case was tried by Judge Willard W. Cutler without a jury, resulting in a judgment for the appellant on the respondent's counterclaim, on the ground that, as the respondent did not perform his part of the contract, he could not recover profits thereon. There is no appeal from this determination of the trial court. On August 24th the appellant passed a resOn the appellant's claim, there was a judg-olution terminating the contract of the rement in favor of the respondent, on the spondent. Afterwards, a new contract was ground that it allowed itself to be placed in made for $2,120.20 in advance of the respondsuch a position that it prevented the respondent's contract to do the same work. That ent from fulfilling his contract by September 1, 1916, and did not perform its part of the contract, by having the building ready for the work of the respondent, within a reasonable time after that date. The respondent had a right to rescind the contract and to treat it as abandoned by the appellant. We concur with this view of the case and the result reached by the trial court. The find

amount is the sum for which this suit was instituted. The suit was commenced on February 4, 1918, resulting, as stated above, in a judgment for the respondent. We think the judgment of the trial court was justified by the facts and the law.

Finding no error in the record, the judgment of the Supreme Court is affirmed, with costs.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Court of Chancery of New Jersey. May 28, course of cruel and abusive treatment to

If a party files a petition for divorce for de-filing of the petition in this cause (the first sertion, and afterwards files a petition for di

(Additional Syllabus by Editorial Staff.) 3. DIVORCE 48-CONDONATION. Condonation is a privilege of the injured. that in answer the defendant had set up the party, and not of the injuring party.

(107 A.)

by to avoid prejudice to the second suit by [that the first suit pending between the parthe pendency of the first one.

ties in the case sub judice ought to be no bar to the prosecution of the second suit; but Vice Chancellor Grey, in the case of Johnson v. Johnson, appears to have decided otherwise. There the petitioner brought suit for divorce against his wife for desertion, and it appeared that each party had previously sued the other for dissolution of the marriage tie, the petitioner for adultery against the defendant, which petition was dismiss

[1] Counsel for the defendant resists the motion upon the ground that there could be no desertion by the defendant of the petitioner during the period in which a suit for divorce was pending against him instituted by the petitioner, and relies upon Weigel v. Weigel, 63 N. J. Eq. 677, 52 Atl. 1123, affirmed on opinion below, 65 N. J. Eq. 398, 54 Atl. 1125; Johnson v. Johnson, 65 N. J. Eq. 606, 56 Atl. 708; and Von Bernuth v Von Ber-ed, and the defendant for desertion against nuth, 76 N. J. Eq. 494, 74 Atl. 700, 139 Am. St. Rep. 784.

the petitioner, which also was dismissed; but both of these cases were pending during In Weigel v. Weigel the defendant pleaded a portion of the time that the petitioner in that part of the time during which she was the then instant case urged before the court alleged to have deserted her husband was was the period of desertion for which he was occupied by the pendency of her suit against entitled to a divorce and Vice Chancellor him for divorce for constructive desertion, Grey observed, at page 608 of 65 N. J. (56 and that, as she could not have cohabited | Atl. 708), that no portion of the time during with him pending that suit without condon- which either of the previous suits between ing the offense, she alleged that the time the parties were pending could be computed occupied by her suit should not be counted as in making up the term of the two years part of the desertion. In that case her con- during which the desertion of the defendant tention was decided adversely to her, but must have been willful, continued, and obupon another ground, namely, that her stinate to entitle him to a decree. suit was not brought in good faith, but was a fraud on the court, on the law, and on the defendant; that, how ever, is immaterial to the present inquiry. It will nevertheless be observed that in the Weigel Case the contention that the time occupied by the prior divorce case between the same parties could not be computed as any part of the period of desertion alleged by the petitioner in the then instant case was made by the defendant, who was the petitioner in the former suit, and who alleged that she could not have cohabited with her husband during the pendency of her own suit against him without condoning the alleged offense. And that is quite different from one married party filing a petition for divorce against the other spouse for .desertion, and subsequently filing another suit for the same cause of action while the former one is still pending, because the party in the first suit could answer denying guilt, and that matter of defense could be pleaded In Marsh v. Marsh, 14 N. J. Eq. 315, 82 in the second suit as well as in the first Am. Dec. 251, Chancellor Green held that one. In other words, a defendant charged it is legally improper for the parties with a matrimonial offense can hardly say to cohabit together during the pendenthat he or she cannot safely cohabit with the cy of a suit by the husband against other one, when, in fact, the other party is the wife for divorce on the ground of not charged by the defendant with any dere- adultery. And there, as in the Johnson liction which would entitle the defendant to Case, the rule was applied to one who was a divorce. defendant in the two suits, the then instant one being for desertion, and the prior one, which was defeated, for adultery.

[3] In still other words, a defendant who is complained against and asserts his innocence has nothing to condone; condonation being a privilege of the injured party, not of the injurer. And if the defendant were guilty he would not be prejudiced by the former suit in which he was also a defendant.

In Von Bernuth v. Von Bernuth the original suit was brought by the wife, and in it the husband filed an answer in bar, and also pleaded a cause of action for divorce against her by way of cross-petition. This was as though he had brought an independent suit against her, and it was so treated by the Vice Chancellor, who observed that some portion of the time relied upon by the husband for his cause of action was occupied and taken up by the original suit of the wife; and he held that, if the rule of Weigel v. Weigel and Johnson v. Johnson were applied, the cross-petition would have been prematurely filed, but that, as the petition of the wife was filed and prosecuted in bad faith, the case came within the exception in the Weigel Case, and the wife in the case before him (Von Bernuth) was not allowed to set up the pendency of her suit in bar of her husband's right, and he was granted a decree.

In Chipchase v. Chipchase, 48 N. J. Eq. 549, 22 Atl. 588, it was held that a wife who is prosecuting an action against her husband for divorce for alleged adultery cannot maintain that the separation pending such In the domain of reason it may well be suit is obstinate on the part of the husband.

This is a definite decision to the effect that habitation with him, but on or about Octothe party defendant is entitled to the benefit ber 23, 1916, he came home in an intoxicated of the doctrine that his separation from his | condition and severely beat her, whereupon wife pending a suit by her against him is not obstinate.