Action by Abraham L. Graham, as administrator, against the Consolidated Traction Company, for the wrongful death of plaintiff's intestate. There was a verdict in plaintiff's favor, and defendant obtained a rule to show cause why a new trial should not be granted. Rule made absolute.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

George J. McEwan, for plaintiff. A. Q. Garretson, for defendant.

MAGIE, C. J. There are two grounds upon which this rule to show cause must be made absolute. The action is by the administrator of a deceased person to recover for himself, as the sole next of kin, damages for the death of the deceased, under the provisions of the "Act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default," approved March 3, 1848 (1 Gen. St. p. 1188). To succeed in such an action, the plaintiff must establish, by a preponderance of proof, that the death was caused by the wrongful act, neglect, or default of a person or corporation who would have been liable to an action for damages if death had not ensued. The deceased was the son of plaintiff, and a boy of 4 years and 4 months of age. He was struck and killed, in a public street of Jersey City, by a trolley car belonging to defendant, and run by a motorman in its employ.

An examination of the state of the case clearly shows that the trial judge was right in announcing to the jury that the plaintiff rested his right to recover upon the negligence of the .motorman in one of three respects, namely, maintaining an excessive rate of speed in the locality where the injury occurred, or not keeping a proper lookout for persons crossing in front of his car, or not giving warning to such persons by ringing the gong of the car.

With respect to the first of these claims, the evidence is somewhat contradictory, but that which attributes to the car a high rate of speed is vague and uncertain. The contrary evidence is so supported by indubitable proof that the car was stopped within a few feet that the negligence of the motorman in this respect is not made out by a preponderance of evidence. A verdict on the ground that the motorman was negligent in the speed maintained is plainly against the great weight of evidence.

With respect to the second claim, namely, that the motorman failed to keep a proper lookout to observe persons crossing the street over the track of his moving car, an examination of the evidence leads to a like conclusion. The fault of the motorman in this regard was claimed to be established by the occurrence. The details of the occurrence are left in dispute by the evidence. There was much contradictory evidence as to the manner

in which the boy came to his death, but the great, indeed, I may say, the overwhelming, weight of evidence was that he was playing with other boys on the sidewalk; that there was nothing in his conduct to indicate that he intended to go upon the street and cross in front of the car; that suddenly, when the car was very near to them, two boys started into the street, and attempted to cross over the car track; that one of the boys, who was in advance, just managed to get over safely; that the second boy was the deceased, who was struck by the fender; that another boy ran out, as he says, to catch the deceased, and take him from the place of danger, but failed to do so, and ran himself into the side of the car, and was knocked down. Upon the weight of this evidence, there is no justifiable inference that the motorman failed to keep a proper lookout. The deceased crossed, not at a crossing, but in or near the middle of a block. His act was sudden, and the motorman had no reasonable ground to expect him to attempt to cross. A verdict, if found on that ground, is opposed to the weight of evidence.

As to the remaining claim of negligence, on the ground that the motorman gave no warning of the approach of the car, the verdict is equally unsupportable on the evidence. There is no statutory duty imposed upon street-railway companies in respect to giving audible signals of the approach of their cars, such as is imposed by law upon railroad companies. The duty of street-railway companies in that regard arises out of their use of public highways in which the public have a right of passage. Since they are permitted to use cars running upon rails, from which they cannot deviate, and since this construction forbids their turning out to make way for the passage of other vehicles or passengers, a duty to give reasonable warning of the moving car may arise. Such a duty may reasonably require audible signals, but the circumstances disclosed by the evidence do not justify the inference that such duty arose in this case. The clear evidence is that the boys, in their play on the sidewalk, gave no indication that they intended to cross the track. No signal nor warning as to them would have been appropriate or required. When they rushed from the sidewalk, and ran directly in front of the car, the motorman made every effort to arrest the motion of the car. The car was visible and visibly moving. The signal by the gong would have been of no avail. From the evidence, an inference of failure of duty in this respect could not reasonably be drawn.

The verdict in this case must also be set aside because it awards an excessive amount of damages. The rule for admeasuring damages in actions like that now under consideration is not open to doubt in this court. The statute which permits such action has been uniformly construed to limit the damages to compensation for the deprivation of a reasonable expectation of pecuniary advantage from the

continuance of the life of the deceased person. Such was the construction given to the statute by Chief Justice Beasley in Paulmier v. Railroad Co., 34 N. J. Law, 151. That construction was again approved in this court in Demarest v. Little, 47 N. J. Law, 28. It has been applied in the trial of such cases by every judge of this court. In my judgment, no other construction of the act is possible. But, if possible, this court would be obliged to adopt the construction which has for so long a time been recognized and applied by it. This case presents an unusual feature. It was first tried in September, 1896, and the trial resulted in a verdict for plaintiff for $5,000. Upon a rule to show cause, this court found the verdict excessive, and set it aside for that reason. The case was again tried in October, 1897, and again resulted in a verdict in favor of plaintiff, and awarding $5,000 damages. Upon a second rule to show cause, the second verdict was set aside by this court on the ground that the damages awarded were excessive. The third trial resulted in a like verdict, which is now before us for consideration. It is strenuously urged in support of this verdict that, in general, courts will not disturb a second verdict if in substantial accord with the previous verdict which had been set aside, and that a fortiori a third verdict in identical terms ought not to be disturbed by the court. This argument is applicable, and would prevail, in many cases. It cannot be applicable to cases where the verdict plainly indicates that it is the result of ignorance, prejudice, passion, or corruption, or is irreconcilable with the evidence.

In the trial now under review, the trial judge correctly instructed the jury in respect to the rule for admeasuring damages in the

Notwithstanding his explicit instructions, the jury awarded the sum of $5,000, and, if such award exceeds the amount which the rule would alone justify, it clearly indicates that the jury refused to take the instructions of the court, and that their verdict must have proceeded upon some other ground than that presented by the evidence. It is true that the amount of damages in such cases must be estimated on probabilities, and, as was said by Chief Justice Beasley, to a large extent upon conjectures and uncertainties. It results that there may be great differences in the result reached by different persons upon the same facts, but, while this requires the court to be extremely cautious in exercising its power to review the verdict of the jury on the ground of the excess of damages, it will not excuse us for withholding our hands, and permitting an unjust verdict to stand, when no possible inference in its favor can be drawn from the evidence. The argument addressed to us in this respect would require us to permit a verdict for $100,000 to stand as well as one for $5,000. cannot be the rule of duty in this court. If, on the evidence, a verdict of a jury discloses injustice, whether from ignorance or malice

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or corruption, this court cannot permit it to be enforced. The damages properly to be awarded in the case were such as would compensate the father for the reasonable expectation of pecuniary benefit from the deceased during the period of his minority, when he owed service to his father, and thereafter, when he would become emancipated by being of full age. To fix the precise amount that would thus compensate the father may be difficult, perhaps impossible; but it is not impossible to determine that $5,000 far exceeds any reasonable probability of pecuniary benefit from the continued life of the deceased. Looking at the liability of the father for the support, maintenance, and education of the child during minority, and considering what pecuniary benefit the father would receive from the son's earnings during or after minority, in the most favorable aspect, it is plain that the award far exceeds any possible amount of such pecuniary benfit. On this ground, also, the verdict must be set aside, and a new trial granted.

ROSENBAUM v. UNITED STATES CREDIT-SYSTEM CO.

(Supreme Court of New Jersey. Nov. 13, 1899.) LAWS OF FOREIGN STATE-MISTAKE OF FACTILLEGAL CONTRACTS-IGNORANCE OF LAW.

1. The Massachusetts supreme court having held that credit-system insurance in that state is unlawful, and within the prohibition of the statute law of the state, that must be accepted by the courts of this state as the correct exposition of the law.

2. The laws of another state are facts to be proven, and a mistake in regard to such laws is a mistake of fact.

3. The general rule is that if a party enter into an absolute contract, without any qualification or exception, he must abide by it, and perform it or pay the damages.

4. Where a contract is made to do an act in another state, which is illegal and punishable there, no action will lie by either party for a breach of such contract, both parties having entered into it in ignorance of the law of such state.

5. If the plaintiff did not know of the existence of the Massachusetts law, and the defendant company did have knowledge of it, at the time the contract was executed, the plaintiff may recover such damages as he has sustained by the fraud of the defendant in inducing him to enter into the contract.

(Syllabus by the Court.)

Action by Martin Rosenbaum against the United States Credit-System Company. Heard on rule to show cause. Rule made absolute. Argued June term, 1899, before VAN SYCKEL and LIPPINCOTT, JJ.

R. Wayne Parker, for plaintiff. Howard W. Hayes, for defendant.

VAN SYCKEL, J. This is a suit for wages by Rosenbaum against the above-named defendant, founded upon an agreement in writing by which the defendant company appointed the plaintiff as its agent for the term of five years from December 1, 1892, for the purpose of procuring credit insurance in the state

of Massachusetts. The company agreed to pay Rosenbaum, as compensation for his services as such agent, a certain specified sum on the amount of such insurance procured by him; and Rosenbaum, on his part, agreed to procure a certain amount of business for the company. The declaration alleges that the company ceased to employ the plaintiff before the expiration of the term for which he was engaged, and claims damages for breach of the agreement.

The first question to be considered arises under the second plea, that the contract is void because the plaintiff agreed not to engage in credit insurance for three years after he left the service of the company; such an agreement being unlawful and in restraint of trade. Even admitting the contract in this respect to be illegal, it does not avoid the entire contract. The exclusive clause may be rejected, under the authority of Fishell v. Gray, 60 N. J. Law, 5, 37 Atl. 606.

The third plea alleges that when the contract was made, and during the stipulated term, there was a law in the state of Massachusetts forbidding such credit-insurance companies as the defendant from transacting business in said state through an agent or otherwise, and that any person who should act as such agent should be punished by a fine not less than $100 nor more than $500 for each offense. To this plea the plaintiff filed two replications, upon which issue was taken: First, that the plaintiff did not know of the existence of the law in Massachusetts forbidding the agency when he entered into the contract; second, that the plaintiff did not know of the existence of the Massachusetts law, but that the defendant company did know that there was such a law, when the contract was made. The Massachusetts court has held that credit insurance in that state is unlawful, and within the prohibition of the act which is pleaded. Claflin v. Credit-System Co., 165 Mass. 501, 43 N. E. 293. That must be accepted by the courts of this state as the correct exposition of the Massachusetts statute. Watson v. Lane, 52 N. J. Law, 550, 20 Atl. 894, 10 L. R. A. 784; Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104. The plaintiff claims that he was ignorant of the existence of the Massachusetts law, and therefore that the contract is valid and binding upon the defendant company. is well settled that the laws of another state or country are facts to be proven, and that a mistake in regard to such law is a mistake of fact. Haven v. Foster, 9 Pick. 112; Norton v. Marden, 15 Me. 45; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287.

It

As the case stands, two questions are involved for consideration: First. If both parties were ignorant of the Massachusetts law, and the contract was executed under a mutual mistake of fact, can the plaintiff enforce it? Second. Can the plaintiff maintain an action for damages, if he was ignorant of the existence of the law, and the defendant company

knew of its existence, at the time the contract was signed?

It is undoubtedly the general rule that if a party enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay the damages. In Trustees v. Bennett, 27 N. J. Law, 519, Mr. Justice Whelpley says: "No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. He that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies in his contract." In Atkinson v. Ritchie, 10 East, 530, Lord Ellenborough, C. J., said: "The rule laid down in the case of Paradine v. Jane, Alleyn, 27, has been often recognized in courts of law as a sound one; i. e. that, when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." In Beebe v. Johnson, 19 Wend. 500, this doctrine was carried to its extreme limit. There it was held that where the defendant had covenanted that he would perfect in England a patent right granted in this country, so as to insure to the plaintiff the exclusive right of vending the patented article in the provinces of Canada, he was not excused from performance, although it appeared that the power of granting exclusive privileges of this kind appertained, not to the mother country, but to the provinces, and were never granted except to subjects of Great Britain and residents of the provinces, and could not be granted to either the plaintiff or the defendant, as both were citizens of this country. This was not an agreement to do an unlawful act or to carry on a business unlawful in another country, but an agreement to secure in a lawful manner a patent in England. A patent secured in violation of the law of England would have been of no validity. It was an absolute agreement to do something which could not be accomplished, and it was the folly of the party to make it. The case under consideration differs from the entire class of cases of which those above referred to are examples. It introduces an element which distinguishes it, and subjects it to another well-settled rule, which is stated by Chief Justice Marshall in Armstrong v. Toler, 11 Wheat. 272, 6 L. Ed. 468, as follows: "Questions upon illegal contracts have arisen very often, both in England and in this country; and no principle is better settled than that no action can be maintained on a contract the consideration of which is either wicked in itself, or prohibited by law." In Waugh v. Morris, L. R. 8 Q. B. 202, the declaration of the court is that, "where a contract is to do a thing which cannot be performed without a violation of the

law, it is void, whether the parties knew the law or not." Spence v. Chodwick, 10 Adol. & E. (N. S.) 517, does not support the contrary view. Wightman, J., there said that it did not appear that the goods were taken to Cadiz by the desire of the defendant; that the object was to convey the goods to London, and Cadiz was mentioned merely in describing the route of the ship. We are therefore of the opinion that it was correctly ruled in Rosenbaum v. Credit-System Co., 60 N. J. Law, 294, 37 Atl. 595, that no action can be maintained for failure to employ the plaintiff to do an act for which he was punishable by the Massachusetts law. Rosenbaum's compensation was to be a percentage upon the amount of business he transacted. He could not be compelled to do acts forbidden by law, nor can he require the company to pay him for services which he cannot render because the law forbids under a penalty.

But assuming that the plaintiff did not know of the existence of the Massachusetts law, and that the defendant company did have knowledge of it, when the contract was entered into, a different question is presented. In that case it was clearly a fraudulent act on the part of the defendant company to engage the defendant in a five-years contract, from which the company knew he could derive no advantage; and the fraud was more pronounced, in the fact that the plaintiff, in ignorance of the situation, was induced to enter into a contract to engage for a long period in the transaction of a business which would subject him to heavy penalties. For damages flowing from the alleged fraud, if proven, the plaintiff may maintain his suit.

No question is made as to the form of the pleadings, the parties having agreed that the proceedings may be molded to try the real issue between the parties. The rule to show cause should be made absolute.

to the amount thereof, on the said lot of land and building, over and above any mechanic's lien for any work or materials furnished by M. & G. for the erection of such building. M. & G. also agreed that they would indemnify and save P. harmless from any liens by any contractors, as against the amount of the mortgage. In the introductory part of this agreement it was stated as a recital that: "Whereas, the said parties of the first part are now engaged in erecting, under filed contracts, a building for one Joseph Edward Rogers on Madison street, Rutherford, New Jersey, whereon the said party of the second part is about to loan the sum of $2,500, secured by bond and mortgage thereon, which sum is to be used as a building fund for the payment of said contractors." Held, that this recital in this agreement did not constitute a covenant or promise on the part of P. to pay M. & G. the whole or any part of said sum of $2,500 for labor, work, and materials furnished for use in the erection of such building, and that no action could be maintained by M. & G. against P. upon such recital; and hell, further, that the agreement, in its other parts, did not show any intention that this recital should have the operation of a covenant or promise to pay the plaintiffs.

(Syllabus by the Court.)

Action by George Monks and William Gilles against the Provident Institution for Savings in Jersey City. Demurrer to declaration sustained.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

Addison Ely, for plaintiffs. Charles H. Hartshorne, for defendant.

LIPPINCOTT, J. The declaration, containing one count, avers that the plaintiffs were engaged in erecting a building, under a filed contract with one Joseph Edward Rogers, on Madison street, Rutherford, N. J., whereon the said party was about to obtain a loan of $2,500, to be secured by bond and mortgage, which sum was to be used as a building fund for the payment of plaintiffs, as contractors, and that thereupon the plaintiffs covenanted with the defendant that the said mortgage should be and remain a first lien upon the

SAVINGS IN JERSEY CITY.

(Supreme Court of New Jersey. Nov. 13, 1899.) COVENANT IN DEED-INTENT OF PARTIESACTION FOR BREACH.

1. A recital in a deed will constitute a covenant or agreement between the parties, upon which an action will lie, but it must have been the intention of the parties thereto that it should have such effect. A recital does not necessarily imply a covenant, and whether it does so or not in each case depends on what is to be collected of the intention of the parties from the whole instrument. If the recital in a deed is solely relied upon as constituting a covenant or promise, then there must be in the recital all the elements and certainty requisite to a contract between the parties.

2. M. & G., contractors, were erecting a building for R.; and after the erection had been commenced, and while it was in progress, P. agreed with R. to make a loan to him, to be secured by a mortgage from R. to P. on the lot and the building so erected thereon. M. & G., parties of the first part, agreed in writing, under their seals, with P., party of the second part, that the mortgage should be a paramount lien,

any claim or demand that the plaintiffs might have or thereafter acquire against said lot or building by virtue of the mechanic's lien law of this state, and that the plaintiffs thereby covenanted and agreed with the defendant that they would indemnify and save it harmless from the force and operation of any mechanic's lien, by whomsoever filed or claimed, or to be filed or claimed, against the said lot or building. The further averment is that the plaintiffs have performed this agreement on their part, and, as a breach, that the defendant did not and would not perform its agreement to hold the said sum of $2,500 as a building fund as aforesaid, and did not pay the same to the said contractors, contrary to the force, form, and effect of said agreement, and therefore the said defendant became liable to pay the plaintiffs their claim for the erection of the building. According to the bill of particulars annexed to the declaration,

The agree

the sum of $625 remains due and unpaid by the said Rogers for the work, labor, and services and materials on the said building, with interest thereon. By another averment the agreement is made a part of the declaration, and a copy is thereto annexed. ment was made on September 20, 1897, between plaintiffs and defendant, and recites that whereas, the plaintiffs are engaged in erecting, under filed contracts, a building on Madison street, Rutherford, N. J., for said Rogers, and that the defendant is about to loan the said Rogers the sum of $2,500, to be secured by bond and mortgage thereon, "which sum is to be used as a building fund for the payment of said contractors." The averment further proceeds, that, in consideration of the premises, the plaintiffs covenant and agree to and with the defendant that the said mortgage shall be the first lien on the premises, paramount to any claim of the plaintiffs against said building or lot of land under the mechanic's lien law of this state, which they then had or might thereafter acquire, and that the plaintiff would indemnify and save harmless the defendant, in favor of said mortgage, from the force and operation of any mechanic's lien, by whomsoever filed. This agreement is signed and sealed by the plaintiffs to this action. It was delivered to, and is held by, the defendant.

It will be seen that according to the terms of this agreement, as they stand, there is no express agreement on the part of the defendant to pay to the plaintiffs any sum of money whatever because of the waiver of the right to file a mechanic's lien against the said lot and building. The agreement itself is only one by which the plaintiffs agree to make paramount the mortgage given by defendant to secure a loan to Rogers of the $2,500 by mortgage over and above all liens. The right to file liens subject to said mortgage is expressly reserved, and the only claim of liability, if any, which is made, or can be made, arises out of the recital in this agreement that the sum of $2,500 "is to be used as a building loan fund for the payment of said contractors." Words of recital in a deed will constitute an agreement between parties, upon which an action of covenant will lie, but it must appear to have been the intention of the parties that it should have such effect. A recital does not necessarily imply a covenant, and whether it is so or not depends in each case upon what is to be collected as the intention of the parties from the whole instrument. 1 Add. Cont. (8th Ed.; Abb. & W. 1888) 187. In order to ascertain the intention, reference must be had to the terms of the contract, and the subject-matter thereof, and the situation of the parties as therein stated. A recital is but introductory, and will not be drawn down into the agreement, when it appears from the other portions of the contract that such was not the intention of the parties. 1 Chit. Cont. (11th Ed.) 125. The recitals may be used to discover the intention of the parties

to the agreement. Id. 120, 121. All the cases and text writers cited by the plaintiffs in the argument refer only to the effect of recitals in deeds and agreements upon the construction of contracts, and only state the general rule that an agreement must be interpreted from all its parts taken together,-"Ex antecedentibus et consequentibus."

Barton v. Fitzgerald, 15 East, 542; 2 Rolle, Abr. 409; Pars. Cont. (7th Ed.) 631-641; McClelland v. Railroad Co., 110 N. Y. 469, 18 N. E. 237, 1 L. R. A. 299; Brockway v. Pelter, 79 Mich. 620, 45 N. W. 61, 7 L. R. A. 740,— are all cases and authorities which hold that parties making an agreement are estopped from denying the facts stated in the recitals thereto, so far as they affect liability under the contract, or that parties are affected with notice of the recitals where they refer to other instruments containing certain conditions and limitations which are to be embodied in the agreement. They are exemplifications only of the well-established principle that parties to a deed or contract are estopped from contradicting or disputing these recitals, and they must be taken as true so far as they may aid and assist in the interpretation of the contracts, or in establishing liability thereunder, and that a contract must be interpreted by reference to all its parts. The case of Farrall v. Hilditch, 5 C. B. (N. S.) 840, much relied on by the plaintiffs, is a case where a recital was held to be a covenant. The deed was one conveying property to secure a debt of the grantor, and it recited that the grantee had sued the grantor for the debt, and that the deed was made to secure it, and that the grantee should take judgment in the action, "but that no execution should issue therein until the present security be realized." After judgment was taken, execution was issued, and an action was brought on this recital, as for a breach of covenant. The action was sustained because the court decided that the recital expressed the whole transaction, but in deciding the case the court also said that it "ought to be cautious in spelling a covenant out of a recital of a deed, because that is not a part of the deed in which covenants are usually expressed. The proper office of a recital, said Lord Mansfield, like that of a preamble of an act of parliament, is to serve as a key to what comes afterwards." It will be seen that in this recital the whole agreement was expressed. In Young v. Smith, L. R. 1 Eq. 180, the action or proceeding arose out of a marriage settlement made between intended husband and wife and a trustee. It recited that, "if any property should devolve to the wife during coverture, such property and effects should be settled on the same or like trusts." The covenant of settlement in the deed was by the husband alone. The wife, after her father's death, claimed payment to her of a share in his estate which he left her by will. The trustee under the marriage settlement claimed it should go according to this recital. The court (Romilly, M. R.) grant