(107 A.) ing his initials after such signature," wrote | passed for plaintiff. Judgment thereon, and the letters "O. K." In many other instances defendant appealed. there was an entire absence of the "O. K." and the initials. Bryant Reilly, on January 10, 1910, entered into a contract with the board of The judgment under review will be af- chosen freeholders of the county of Atlantic firmed. (93 N. J. Law, 152) NEWTON v. GLOBE INDEMNITY CO. (No. 8.) to build a road. It was finished, and was accepted by the county and state authorities, subject, however, to Reilly's obligation to maintain and repair the road for one year thereafter, to secure which the freeholders of Atlantic, under the terms of the contract, retained 5 per cent. of the contract price, which (Court of Errors and Appeals of New Jersey. amounted to $9,830.14. Afterwards the con June 20, 1919.) (Syllabus by the Court.) INDEMNITY 11 LIABILITY ON BOND "PUT TO Loss." B. R. entered into a contract with the freeholders of Atlantic to build a road. It was finished and accepted, subject to B. R.'s obligation to maintain and repair it for one year thereafter, to secure which the freeholders, under the terms of the agreement, retained 5 per cent. of the contract price, which amounted to $9,830.14. Afterwards the contract and the retained percentage were assigned by B. R. to J. B. R., and by him to M. W. N., the plaintiff. J. B. R., as principal, and the defendant, G. I. C., as surety, entered into a bond to the plaintiff, M. W. N., in the penal sum of $10,000, with condition that if the principal, J. B. R., should repair all defects in the roadway arising from defective workmanship or material, ordinary wear and tear excepted, and should indemnify and save harmless the obligee, M. W. N., from and against all loss which he might be put to by reason of the failure of the principal to cause said repairs to be made, then, etc. Plaintiff, M. W. N., received from the freeholders $8,330.14, who retained the balance of $1,500, out of the retained percentage, to make good defects in the roadway, which had not been repaired. There was evidence that the repairs had not been made and that it would cost $1,500 to make them. Held, that in these circumstances the plaintiff, M. W. N., had been "put to loss" in the sum of $1,500, and that, therefore, there had been a breach of the bond, and that plaintiff was entitled to recover. tract and retained percentage were assigned by Bryant Reilly to James B. Reilly, and by him to the plaintiff, Mahlon W. Newton. On March 20, 1914, James B. Reilly, as principal, and the Globe Indemnity Company, defendant, as surety, executed a bond to the plaintiff, Mahlon W. Newton, in the penal sum of $10,000, with condition: all defects in said roadway arising from defec"That if the aforesaid principal shall repair tive workmanship or material, ordinary wear and tear excepted, from the date hereof until July 31, 1914, the date upon which the maintenance period of said work expires, and shall indemnify and save harmless the said obligee from and against all loss, cost and expense which the said obligee may be put to by reason of the failure of the principal to cause said repairs to be made during the said term, then this obligation shall be null and void; otherwise, to be and remain in full force and effect." On January 18, 1916, the plaintiff, Mahon W. Newton, received from the freeholders of Atlantic $8,330.14, under an agreement which provided that the county should retain the balance of $1,500 out of the $9,830.14, the retained percentage, to make good the defects in the roadway, which had not been repaired. Bergen, Taylor, and Gardner, JJ., dissenting. James B. Appeal from Supreme Court. Action by Mahlon W. Newton against the Globe Indemnity Company. Judgment in the Supreme Court for plaintiff, and defendant appeals. Affirmed. Lum, Tamblyn & Colyer, of Newark, for appellant. Joseph J. Summerill, Jr., of Camden, and Endicott & Endicott, of Atlantic City, for respondent. WALKER, C. This was a suit on a bond of indemnity for $10,000, and a verdict The plaintiff contended that James B. Reilly, needing money to enable him to perform the contract, got plaintiff to indorse his note for $10,000, and that, to indemnify him from loss on it, the bond was given. Newton, the plaintiff, was obliged to pay and take up the note. The witness Miss Feyl, a clerk in Reilly's office, testified that the bond and assignment were taken to secure the note, and plaintiff testified to the same thing. Objections were made to this testimony on the ground that the bond spoke for itself and its terms could not be varied. This appears to be true, and we think the objections should have been sustained; but, in our opinion, the testimony was harmless. It is perfectly obvious that the bond was given to secure the making of repairs to the road by James B. Reilly, the principal, and to indemnify and save the plaintiff, Newton, harmless from all loss which he might be put to if default should be made in the condition. It was quite immaterial that the principal and obligee had entered into other un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 107 A.-18 "Q. You have said that you made an estimate of how much it would take to make those repairs? A. I did. "Q. Will you now tell us what that estimate was? * * A. $1,500." If a contractor and builder qualifies himself as an expert, he may give testimony as to the cost of repairing a building. Higgins v. L. A. Gas & Elec. Co., 159 Cal. 651, 115 Pac. 313, 34 L. R. A. (N. S.) 717. See, also, Frick v. Kansas City, 117 Mo. App. 488, 93 S. W. 351. Obviously, a county engineer, who qualifies as an expert civil engineer, may give testimony as to the estimated cost of repairing a road. It is true that Mr. Nelson, on cross-examination, gave testimony contradictory to what he had said about the period concerning the repairs, but that only discredited his former testimony and left it open to the jury to find the fact. It does not permit us to say as matter of law that the latter statement must be taken in exclusion of the former, and that, therefore, there is no evidence of want of repairs during the period covered by the bond and no evidence of the amount necessarily required to make them. dertakings for and on account of the matter. The trial judge distinctly charged the jury that the suit was on the bond, and not on the note, and that recovery could only be had for a breach of the bond, if that were proved. The testimony about the note was irrelevant and incompetent, but harmless. It had no bearing on the gravamen of the complaint, which was as to the breach of the bond; and harmless errors are not ground for reversal. The question, therefore, is: Was there any evidence tending to prove a breach of the bond, or should the motion to direct a verdict for defendant have been granted? The condition of the bond was, as seen, that if James B. Reilly should repair all defects in the roadway arising from defective workmanship or material, ordinary wear and tear excepted, from the date thereof, March 20, 1914, to July 31, 1914, and indemnify and save harmless the plaintiff, Newton, from and against all loss, etc., which he might "be put to by reason of the failure of the principal to cause the repairs to be made during the term thereof, then," etc. Now, it must be perfectly obvious that if the plaintiff, Newton, were put to loss by the failure of James B. Reilly to make the repairs, then there was a breach of the condition of the bond. In the bond itself the contract between Bryant Reilley and the freeholders, which was assigned to James B. Reilly, was referred to and made a part of that instrument. That contract required Bryant Reilly to maintain and repair the road for one year after its acceptance, admittedly to July 31, 1914. This obligation fell upon James B. Reilly, and there was abun-record of a judgment in the case of United dant evidence to the effect that neither he nor Bryant Reilly discharged that obligation. It is also apparent that the plaintiff, Newton, was entitled to every dollar of the retained percentage of the contract price if Reilly performed by maintaining and repairing the road, and if he did not so perform then Newton was entitled to all, less such an amount as was required to maintain and repair the road as James B. Reilly should have maintained and repaired it under the contract; and every dollar that Newton failed to receive by reason of this default was loss to which he was put, to use the words of the bond, "by reason of the failure of the principal to cause said repairs to be made during the said term." Alexander H. Nelson, a civil engineer, whose competence as an expert engineer was admitted, testified that he was county engineer of Atlantic county, and was examined inter alia as follows: "Q. Now, did James B. Reilly between the 20th day of March, 1914, and the 31st day of July, 1914, repair all defects in the said roadway arising from defective workmanship or material, ordinary wear and tear excepted? A. He did This case is not like that of Jeffers v. Johnson, 21 N. J. Law, 73, where the covenant to indemnify and save harmless was from all damages, etc., which the obligee might or should be put to, or in any wise be called upon to pay, for and on account of being surety for the postmaster of Salem. On the trial the plaintiffs, obligees, proved the States v. Elwell, the postmaster. But the court charged the jury that, in order to recover on this covenant of indemnity, the plaintiffs must show that they had paid the debt, and this was upheld. There the obligees were not put to loss, unless and until they made a loss by paying their principal's debt. Here the plaintiff, Newton, has been put to loss, because $1,500 of the money he was entitled to receive on the contract between Reilly and the freeholders was retained and kept from him by the freeholders by reason of Reilly's very default against which the bond was given as security. Nor is this case like that of Miller v. Fries, 66 N. J. Law, 377, 49 Atl. 674, where the condition of the bond was to save and keep harmless the obligee from all debts and liabilities existing, etc. The only fact assigned and proved as a breach was that one of the debts had passed into judgment. But the court held that such a covenant was not the equivalent of one to pay debts, and that, consequently no damages could lawfully be awarded on such an allegation of breach. There was no proof of loss against which the bond was given as security. Here, as (107 A.) obligee, did not have to pay anybody any(93 N. J. Law, 4) thing in order to recover on the bond. He LESKO v. LIONDALE BLEACH DYE & was damnified if Reilly did not repair the PRINT WORKS. - 1. MASTER AND SERVANT 366-INJURIES Where a minor under 16 years of age was employed to operate a laundry machine in vioL. 1914, p. 525, § 4, the common-law liability lation of Factory Act, § 7, as amended by P. of employer was not affected by the Workmen's Compensation Act, for that act applies only where the contract of hiring is a valid one. MASTER AND SERVANT 95—INJURIES TO 2. SERVANT-ESTOPPEL OF INFANT SERVANT. road, and he (Newton) was put to loss if he (Supreme Court of New Jersey. June 17, 1919.) did not. Reilly did not repair, and Newton was put to a loss of $1,500 because of Reilly's default. This is directly within the covenant. This case was submitted on briefs, and, while there are several exceptions relating to the charge, one only is argued by the defendant appellant to be erroneous. It is that the judge told the jury that the defendant company was not represented at the settlement between the plaintiff and Reilly and the county; that defendant would not, therefore, necessarily be bound by the arbitrary deduction of money from Reilly or his assignee, unless based on an honest understanding of what sum was actually necessary to do the work on the road that Reilly was required to do under the bond. This we think was error, because the defendant, not being a party to the agreement, was not bound by anything they did; but as there was competent evidence to justify the verdict, namely, that the repairs had not been made and that it would cost $1,500 to make As Factory Act, § 7, as amended by P. L. them, this phase of the charge was harmless, 1914, p. 525, § 4, forbids the employment of and therefore not ground of reversal. minors under 16 years to operate laundry maThe motion to direct was rightly over-chines, a minor so employed cannot be held to ruled; the admission of illegal testimony, and the erroneous charge, were harmless. The judgment should therefore be affirmed. TAYLOR and GARDNER, JJ., dissent. A minor by misrepresenting his age when employed to operate a laundry machine in violation of Factory Act, § 7, as amended by P. L. 1914, p. 525, § 4, forbidding employment of minors under 16 for such work, is not estopped from asserting that the employment was unlawful. UN 3. MASTER And Servant 204(2)—INJURIES TO SERVANT ASSUMPTION OF RISK LAWFUL EMPLOYMENT. assume the ordinary risks of the employment, the Legislature having declared minors under 16 too young to appreciate such risks. Action by Meri Lesko, guardian of Andrew Kline, against the Liondale Bleach Dye & Print Works. On defendant's rule to show cause after verdict for plaintiff. Rule discharged. Argued November term, 1918, before GUM- King & Vogt, of Morristown, for the rule. BERGEN, J. (dissenting). My vote to reverse is based upon my conclusion that there was no sufficient proof, which the jury ought to consider, to show the damages which the plaintiff suffered. The only proof is that the county engineer estimated that $1,500 would cover the cost of the repairs required, and this amount was agreed upon by the plaintiff and the county. The defendant is not bound GUMMERE, C. J. The defendant comby the agreement between the plaintiff and pany operates a large laundering plant at the county, based upon an estimate of the Rockaway in this state. Some time in 1916, county engineer. There should have been Andrew Kline, the ward of the plaintiff, proof of the extent and character of the was employed by the company, and in June necessary repairs, and the question of cost of that year was put to work upon a washing determined by the jury, who are not bound or laundering machine. His specific work by the conclusion of the two interested par- was to keep the edge of the goods which were ties in which the defendant did not partici- run through the machine from curling or pate. Parties claiming the breach of a bond getting folded, as it passed over the rollers. cannot fix the damages. The obligor is to His hand apparently became entangled in the pay only when the extent of the repairs in- machinery, was drawn in between two of the demnified against are proven, which was not rollers, and crushed. At the time of the acthe case here. The plaintiff was making a cident, Kline was under 16 years of age; but settlement with the county for his neglect this fact was not known to the defendant. On to repair, and allowed $1,500 as the esti- the contrary, Kline himself, at the time of mated cost, and the liability of the obligor his employment, represented to the comcannot be fixed by the agreement of the par-pany's superintendent that he was then over ties who are antagonistic to the obligor. 16 years old. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This sult is based upon the common-law | truthfulness of the statement made with reliability of an employer to compensate an lation to his age. employé for injuries received in his employment by reason of the negligence of the master. The trial resulted in a verdict for the plaintiff. It is enough to say, in disposing of this contention, that since the argument of this case the court of Errors and Appeals in Feir v. Weil, 106 Atl. 402, in an opinion promulgated in March of this year, expressly declared that the doctrine of estoppel in pais has no application where the employment of the infant is in violation of the provisions of the Factory Act. In that case, as in the present one, the employé falsely represented his age, and the master hired him believing the truth of the representation. [1] The first ground upon which we are asked to make this rule absolute is that since the enactment of chapter 95 of the Laws of 1911, commonly known as the Workmen's Compensation Act, that statute provides the only means by which an injured employé can recover compensation from his employer for injuries received in the course of, and arising out of, his employment, and [3] Another ground upon which we are abrogates the common-law liability of the asked to set aside the present verdict is that master for such injuries. But this statu- the injury which befell the plaintiff was tory provision with relation to the recovery | an ordinary risk assumed by him in the norof compensation only applies where the con- mal operation of the machine; but this contract of hiring is a valid one, and not where tention is unsound. As was pointed out in such a contract is prohibited by the statute the Hetzel Case, the primary purpose of the law of the state; and this is the situation now provision of the Factory Act, which has alpresented. By an amendment passed in 1914 ready been cited, is to protect all children (P. L. p. 525) to the Factory Act of 1904, who are too young to appreciate the dangers 7 (P. L. p. 152), it is declared (section 4) arising out of work in places or upon machines thatsuch as those described by the Legislature; and it cannot be said, in view of this legislative purpose, that a child who is too young to appreciate the dangers arising out of his work, and incident thereto, assumes the risk of such dangers. No risks are assumed exIcept those which are or ought to be obvious to the party incurring them. As was said in Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 88, when the Legislature has distinctly established an age limit under which children shall not be employed, it, in effect, has declared that a child under that age limit does not have the mature judgment, ex "No minor under the age of sixteen shall be employed, permitted or suffered to work at any of the following occupations or in any of the following positions: adjusting any belt to any machinery; operating or assisting in operating any laundering machinery," etc. In the case of Hetzel, Jr., v. Wasson Piston Ring Co., 89 N. J. Law, p. 201, 98 Atl. 306, L. R. A. 1917D, 75, it was declared by the Court of Errors and Appeals that, where an infant was put to work by his employer in direct contravention of the provisions of the Factory Act, the common-law liability of the employer to compensate his employé for in-perience and discretion necessary to engage juries caused by the negligence of the former was not affected by the provisions of the Workmen's Compensation Act. [2] But it is argued that the doctrine of the Hetzel Case has no application where the employer is induced to hire the employé by reason of a false representation made by the latter as to his age, the representation being that he is not within the age limit specified in the statute. The argument rests upon the theory that, the false representation having been the inducing cause of the employment, the infant employé is estopped from taking advantage of the statute; or, stated in another way, will not be permitted to deny the safely in work prohibited by the statute; and, consequently, a boy employed in violation of the legislative mandate is not chargeable with contributory negligence, or with having assumed the risks arising out of that employment. Lastly, it is contended that the verdict is excessive. It is enough to say, in disposing of this phase of the case, that the evidence on this point does not justify us in saying that the award of damages is clearly greater than the compensation which the plaintiff is entitled to recover for the injuries received. The rule to show cause will be discharged. (93 N. J. Law, 184) (107 A.) ment for plaintiff, and defendant appeals. LEVENSON WRECKING CO. v. GATTI- Affirmed. McDermott & Enright and James D. Car (Court of Errors and Appeals of New Jersey. penter, Jr., all of Jersey City, for appellant. June 20, 1919.) Weller & Lichtenstein, of Hoboken, for respondent. TRENCHARD, J. This is an appeal from a judgment entered on a verdict for the plaintiff in an action by the Levenson Wrecking Company, a corporation, against the Gatti-McQuade Company, another corpora tion, for rent reserved under a parol lease alleged to have been made in June, 1914, for a term of one year beginning August 1, 1914. [1] We are of the opinion that the judgment must be affirmed. At the trial it appeared and was undisputed that the parties entered into a written lease for one year from August 1, 1912, and on that date the defendant took possession of the premises. It was also admitted that thereafter the defend ant entered into an oral renewal of the lease with the plaintiff for another year, ending July 31, 1914. The plaintiff claimed that in June, 1914, the parol agreement sued upon was made between the parties for another year, to commence August 1, 1914. That the defendant denied. According to the plaintiff's evidence, the defendant vacated the premises on August 4, 1914; according to the defendant's evidence, it vacated on July 31, 1914. It appeared, however, and was undisputed, that the defendant's possession of the premises was undisturbed, and that it vacated the premises without the consent of the plaintiff, and refused to pay rent from and after August 1, 1914. The rule that one who goes into possession as a tenant of another is estopped to deny the title of the landlord at the time the lease was made, so long as the tenant is undisturbed in his possession of the demised premises, applies We think that the trial judge properly subequally to a case where the tenant was in pos-mitted to the jury the question of fact whethsession under a prior lease at the time of maker or not a renewal lease for one year from ing the renewal lease sued upon, as well as where he takes possession under and by vir- August 1, 1914, had been made. tue of the latter. 5. LANDLORD AND TENANT 63(4)—DENIAL OF LANDLORD'S TITLE-ESTOPPEL. A tenant, who enters into a renewal of the lease under which he was in possession, is estopped from denying his landlord's title at the time the renewal lease was made, even though the tenant vacates the premises on the last day of the old term, when he does so without the consent of the landlord, and without any interference with his possession. 6. APPEAL AND ERROR 1056(3) TION OF EVIDENCE-REVIEW. The evidence upon that point was conflicting, and the rule is that where the existence and not the validity or construction of a parol lease or the terms thereof is the point in issue, and the evidence is conflicting, it is for the jury to determine whether or not the lease did in fact exist. [2] In this connection the defendant argues that the judgment should be reversed, because the complaint averred that the lease was for a term beginning July 1, 1914, while the plaintiff's evidence showed, and the jury REJEC- found, a letting for a term beginning August 1, 1914. This discrepancy was noticed at the trial just as the judge was about to submit the case to the jury, and was said to have resulted from a typographical error. The case having been fully tried upon the theory that the lease, if made at all, began August 1, 1914, it was submitted to the jury upon that Appeal from Circuit Court, Hudson County. theory, without objection upon the part of Action by the Levenson Wrecking Company the defendant. We therefore incline to think against the Gatti-McQuade Company. Judg- that what thus occurred was tantamount te The rejection of evidence admissible for a purpose other than that for which it is offered will not justify a reversal, when the evidence, if received, could reasonably have but slight ef fect. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |