(80 N. J. L. 604) HILL v. ADAMS EXPRESS CO. (Supreme Court of New Jersey. Nov. 5, 1910.) (Syllabus by the Court.) CARRIERS ($ 153*)-ACCEPTANCE OF SHIPPING RECEIPT LIMITING LIABILITY, The delivery by an express company to a shipper, and his acceptance without dissent, of a shipping receipt containing a clause of limited liability based on value, will raise a presump tion that the shipper knew of and assented to the restriction, in which latter case he would be bound by it; but such presumption is not conclusive, and may be rebutted by evidence negativing such knowledge and assent. [Ed. Note. For other cases, see Carriers, Cent. Dig. 8 687-690; Dec. Dig. § 153.*1 Certiorari to District Court of Camden. Certiorari by Frank Hill, to the use of Mary A. Ferris, against the Adams Express Company, to review a judgment. Judgment affirmed. Argued June term, 1910, before PARKER and BERGEN, JJ. fore conclusive on us as to matters of fact, viz.: "(1) That the plaintiff, Frank Hill, did deliver a box to the Adams Express Company on March 25, 1904, for shipment to Mrs. Morey, Dundalk, Ireland, and prepaid the charges thereon. "(2) That the value of said box and contents was $300. "(3) That the box was lost by the fire in New York, on March 26, 1904, which destroyed the Adams Express Company building at 59 to 61 Broadway, New York City, and has never been delivered to consignee, nor has the defendant company paid for it. "(4) I find that neither the plaintiff, Frank Hill, Mary Ferris, nor any other person by their authority, gave the Adams Express Company any value on the box at the time of shipment or at any other time. "(5) That the receiving clerk, by his own testimony, did not ask the driver to place a value upon the box. "(6) That the plaintiff, Frank Hill, did not, nor did Mary Ferris, or any other person, Gaskill & Gaskill, for prosecutor. Joseph by their authority or in their behalf, know Beck Tyler, for defendant. PARKER, J. This is the third review of this case, and a repetition of the general matters of fact already recited in previous reports of it, which will be cited, is there fore unnecessary. The first time it went off in this court on questions of evidence. 74 N. J. Law, 338, 68 Atl. 94. After a second trial it was again brought to this court on certiorari, and the judgment of the district court affirmed, on the ground that the limited liability clause contained in defendant's receipt could not be enforced against Miss Ferris as the actual plaintiff in the suit, because no special authority of the driver of the local transfer company to bind her by assent to such limited liability clause had been shown, and such authority would not under the circumstances of this case be presumed. 77 N. J. Law, 19, 71 Atl. 683. But this judgment was reversed in the Court of Errors and Appeals (74 Atl. 674); that court holding that the defendant dealt with Hill, the nominal plaintiff, as the real shipper, and in the absence of proof that he or the driver was ignorant of the existence of the limited liability clause in the receipt, and in view of the presumption that they read the paper or were informed of its contents, which presumption was not rebutted by any evidence then in the case, the recovery should have been limited to the amount stipulated in the clause in question. of or assent to a limit of liability being placed on the shipment by the defendant. "(7) That the plaintiff, Frank Hill, did not, nor did Mary Ferris, or any other person in their behalf, as their agent, know that a limit of value would be placed upon the shipment by the defendant without being asked for. "(8) That the plaintiff, Frank Hill, did not, nor did Mary Ferris, or the driver, have common knowledge that the express companies placed a limited liability upon shipments without being asked for it. "(9) That the plaintiff, Frank Hill, did not, nor did Mary Ferris, or the driver, have any knowledge or intimation that a contract on limited liability was being made and by the acceptance of the express receipt. "(10) I further find that neither Frank Hill, nor Mary Ferris, nor any other person, by their authority and with their knowledge, furnished an invoice to the defendant company, nor did they authorize any one else to do so, nor did they have any knowledge that any one else had done so at the time the shipment was made." He accordingly held that defendant had not established a special contract to limit its common-law liability, and gave judgment for plaintiff based on the actual value of the property lost, and without regard to the limited liability clause contained in the express receipt. This judgment is now questioned on two principal grounds: The case accordingly went back for a third trial, which was had in the district court without a jury, and at its conclusion the trial judge announced the following findings, which on an examination of the case we find are supported by evidence, and are there-ited liability he did so agree. 1. That the employment of one Barnet as driver for plaintiff conferred on him presumptive authority to agree to a reduced valuation, and that by handing in an invoice and accepting in silence a receipt with lim •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 77. A.-68 But the court found that no invoice was | but the Court of Errors refused to go so far, handed in, so no authority can be predicated contenting itself with saying that a shipper on that claim. But the general presumption who, knowing that the carrier's rates are of authority remains. Russell v. Erie R. R., based on valuation, and that the receipt ten70 N. J. Law, 808, 59 Atl. 150, 67 L. R. A. dered contains a limited liability clause, ac433.. Assuming such authority, Barnet's ac- cepts such a receipt without dissent, will not ceptance of the receipt, irrespective of the be heard to claim, after taking advantage of invoice, brings us to the real question: the reduced rate, that the value is greater than that stipulated. 2. That the acceptance in silence of a shipping receipt from a carrier constitutes it a binding contract, whether the shipper or his agent reads it or not, and whether or not such shipper or agent was otherwise informed of its contents; or, to put it in another way, the question raised is whether the acceptance in silence of the receipt by the shipper raises a conclusive presumption that such shipper agrees to the terms of that receipt, so that his denial of assent and of knowledge becomes immaterial. The affirmative of this proposition is stoutly maintained by the counsel for prosecutor, and it must be conceded that there is a great weight of respectable authority outside of this state in favor of it. Many cases are collected in Hutchinson on Carriers (3d Ed.) 88 408, 409, and in 6 Cyc. 405, 406, where a different view is also recognized. We do not think it necessary, however, to go into an extended discussion of these decisions; for, while this point has as yet not been directly passed upon in this state by the court of last resort, the general trend of recent decisions in our courts seems adverse to prose cutor's position. In Paul v. Penna. R. R., 70 N. J. Law, 443, 446, 57 Atl. 139 (1904), this court avoided deciding even as to the validity of such a clause based on an agreed value. In Perrin v. U. S. Express Co., 74 Atl. 462, the circumstances were that plaintiffs drew their own receipts in a book of blanks furnished by defendant and kept by plaintiffs at their office; so their knowledge of and assent to the limited liability was presumed, in the absence of anything to indicate the contrary. In Florman v. Dodd & Childs Express Co., 74 Atl. 446, this court, speaking through Mr. Justice Reed, held that the acceptance of receipt by the shipper created a presumption of knowledge of its contents, which, if not rebutted, would be binding. The learned jus tice who delivered the opinion further remarked that the great weight of authority is to the effect that the presumption is conclusive, in the absence of fraud; but the decision of the case did not turn on any such proposition. And in Saunders v. Adams Express Co., in this court, on rule to show cause (76 N. J. Law, 228, 69 Atl. 206), it was held that, if the driver of the express wagon that called for the shipment in that case asked the shipper to place a value on it, the company could not be held beyond the limited value. The case went to the Court of Errors on exceptions reserved (74 Atl. 670); but, though the question of conclusive presumption arising from the receipt was exhaustively argued in that court, the decision turned on other grounds. More In Russell v. Erie R. R., 70 N. J. Law, 808, 59 Atl. 150, 67 L. R. A. 433, 1 Am. & Eng. Ann. Cases, 672, the Court of Errors conced-over, the Supreme Court decision seems to ed the lawfulness of such a contract, but the case turned on a demonstrated lack of authority in the shipper's agent to make any such agreement. In Hayes v. Adams Express Co., 73 N. J. Law, 105, 62 Atl. 284, affirmed in 74 N. J. Law, 537, 65 Atl. 1044 (1906), it was laid down in plain terms in this court, and apparently assented to by the Court of Errors and Appeals, "that in order to lessen the responsibility of a common carrier it must appear that the shipper assented to the restriction, and that mere notice to him of a customary practice on the part of the carrier to insist upon such restriction will not bind the shipper." 73 N. J. Law, at page 106, 62 Atl., at page 284; 74 N. J. Law, at page 540, 65 Atl. 1044. In Atkinson v. N. Y. Transfer Co., 76 N. J. Law, 608, 71 Atl. 278 (1908), the validity of a clause limiting liability to declared or stipulated value was expressly recognized, and counsel argued for the rule that the mere acceptance of a receipt with limited liability clause established a conclusive pre run counter to the doctrine announced by the Court of Errors in Hayes v. Express Co., supra. We have not been referred to, nor have we found, any reported decision in this state that rests on the proposition of conclusive presumption as a basis of decision. On the other hand, the opinions of the Court of Errors in Hayes v. Express Co. and Russell v. Erie Railroad Co., supra, seem to us to point just the other way. Not only this, but in the case now at bar the Court of Errors and Appeals relied merely on the absence of proof to rebut the presumption of knowledge and assent held by that court to have arisen from the acceptance of the receipt without dissent; and the case went back for a retrial with full liberty to plaintiff to meet that presumption by counter proof (which he has done), and without any intimation that such counter proof would be futile on account of the presumption being conclusive. The rule to be deduced from these various decisions is that, while the delivery by the out dissent, of an express receipt containing a limited liability clause based on valuation, raises a presumption of assent to its provisions, such presumption may be rebutted by proper evidence, and, if so rebutted, the limitation of liability does not attach. This disposes of the main question argued. Some rulings on evidence are questioned; but we find either that the point is not raised in the reasons filed, or that no substantial error was made. The point that Miss Ferris did not object to the receipt herself is satisfactorily disposed of by saying that when it reached her hands the box had been already burned up. The judgment will be affirmed. (80 N. J. L. 673) ZABRISKIE v. SULLIVAN. This suit was brought upon a written lease to recoyer rent for the months of November and December, 1909, at $70 per month. Judgment was rendered for the plaintiff. The lease was executed by Augustus Zabriskie, trustee, under the will of Margaret Ginocchio, whereby he leased to the defendant certain premises in Jersey City for "one year from November 1, 1907, at the yearly rent of $840, to be paid month (Supreme Court of New Jersey. Nov. 5, 1910.) ly in advance, i. e., $70 on the 1st of each (Syllabus by the Court.) 1. LANDLORD And Tenant (§§ 64, 63*)-LAND LORD'S TITLE-ESTOPPEL OF TENANT. The rule that a tenant will not be permitted to deny his landlord's title estops the tenant from showing that the lease is imperfectly executed, it extends to a tenant holding over, is applicable to every species of tenancy including that at sufferance, and may be invoked in an action of debt, assumpsit, covenant, or eject ment. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 8 178,.159; Dec. Dig. 88 64, 63.*] 2. LANDLORD And Tenant (§ 116*)-TENANCY FROM YEAR TO YEAR-NOTICE OF INTENT TO VACATE-COMMON-LAW RULE. At common law a tenant from year to year was charged with the reciprocal duty of giving his landlord a six months' notice of his intention to vacate, in order to rid himself of the obligations of a tenant. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 383; Dec. Dig. § 116.*] 3. LANDLORD and Tenant (§ 116*)—TENANCY FROM YEAR TO YEAR-NOTICE OF INTENT TO VACATE. The reciprocal nature of this duty has not been altered by statute and still prevails in this state as at common law. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 383; Dec. Dig. § 116.*] (Additional Syllabus by Editorial Staff.) 4. LANDLORD AND TENANT (§ 195*)-BREACH OF LEASE BY TENANT-DUTY OF LANDLORD TO REDUCE DAMAGES. Where a tenant vacates the premises before termination of his lease, the landlord owes the duty to rent them in diminution of the tenant's liability for damages. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 792, 793; Dec. Dig. 195.*] 5. APPEAL AND ERROR (§ 1010*)-FINDINGS OF FACT-CONCLUSIVENESS. Findings of fact of the district court will not be reviewed, where there is evidence to support them. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. § 3979; Dec. Dig. § 1010.*] month." There was a covenant on the part of the landlord for quiet enjoyment, and one on the part of the tenant to pay the rent as specified and to surrender the premises in good condition at the expiration of the term. The case shows that the defendant took possession at the commencement of the term and remained in possession until October 30, 1909, paying the rent reserved during the whole period. On September 30, 1909, the defendant notified the plaintiff of his intention to quit on October 31, 1909, which the landlord promptly informed him was an insufficient notice in point of time and that he would not be released from the tenancy. The first contention on the part of the appellant is that the plaintiff as trustee, under the provisions of the will creating him a trustee, and which gave him "full power to dispose of and sell all my real estate provided they (the executors) obtain the written consent of such of my children as may be living," was without authority to execute a lease to the defendant, except upon such consent, because, it is asserted, a lease is a dis position of real estate. Shimer v. Phillips · burg, 58 N. J. Law, 506, 33 Atl. 852. Assuming the fact of nonconsent, which does not affirmatively appear, and that an interpretation of the entire will would preestate in trust to pay the net income or Iclude the plaintiff, who took the residuary rent of the property to the children, from demising it without the children's consent, yet it is not perceived how the defendant, after entering into a formal lease with the plaintiff under which he has continued in possession, all the while paying the rent reserved, can deny his landlord's title. Howell v. Ashmore, 22 N. J. Law, 261. This rule also estops the tenant from showing that the lease is imperfectly executed, it extends to a tenant holding over, is applicable to every species of tenancy including that at sufferance, and may be invoked in an action of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes debt, assumpsit, covenant, or ejectment. See | protest and merely for the purpose of preTaylor, L. & T. (7th Ed.) § 705 et seq., where serving the property and attempting to rent the rule is stated and the cases are collected. But we are of opinion that the trustee not only had the power to rent the property, but that such was his duty, imposed by the will, in the administration of the trust. the same for the tenant's benefit. The reparation of the premises by the landlord was also for the benefit of the tenant, for it relieved him of his duty to repair and increased the likelihood of securing a tenant. The finding of the district court, under these circumstances, that there was no eviction, being one of fact, is not open for review here; there being ample foundation to support it. The judgment will be affirmed, with costs. (80 N. J. L. 661) PFEIFFER v. PETERS. (Syllabus by the Court.) 1. FRAUDS, STATUTE OF (§ 123*)—NOTICE TO TERMINATE TENANCY-LEASE VOID AS TO The next point urged for reversal is that the theory that a tenant is obliged to give notice of his intention to vacate has no support in the common law, and the statute does not require it. In the leading case in this court (Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214) Mr. Justice Reed says: "The habit of giving and requiring reasonable notice, in cases of tenancies, not for a single term, but for recurring periods, which reasonable notice, when the periods were (Supreme Court of New Jersey. Nov. 5, 1910.) from year to year, was, according to Lord Ellenborough, very early held to be six months, was probably by a custom equally as old, in tenancies for less periods, established as now stated by the books." The common-law rule undoubtedly was, as stated in that case, that, in tenancies from year to year, landlords were obliged to give, and might require, six months' notice in order to end them. The appellant, indeed, admits that at common law a tenant was charged with the reciprocal duty of giving his landlord a six months' notice of his intention to vacate, if he had been permitted to hold over, in order to rid himself of the obligations of a tenant, citing Doe v. Spence, 6 East, 120. The recip-ant and the subsequent payment of rent, unIn tenancies arising by entry of the tenrocal nature of this duty has not been alter-der a parol lease void as to its term by reason ed by statute and still prevails in this state of the statute of frauds, a month's notice by as at common law. It has been so declared the tenant to terminate the tenancy is insufin Hanks v. Workmaster, 75 N. J. Law, 73, 66 Atl. 1097; Mitchell, etc., v. Armour, 72 Atl. 96. A tenant, having entered upon premises under a parol lease void under the statute of frauds as to the term, and having paid rent durtenant from year to year, for the purpose of ing his occupancy, will be deemed to be a requiring him to give notice to his landlord of his intention to quit. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 387; Dec. Dig. § 123.*] 2. LANDLORD AND TENANT (§ 116*)-NOTICE TO TERMINATE TENANCY-LEASE VOID AS TO TERM UNDER STATUTE OF FRAUDS. ficient. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 387; Dec. Dig. § 116.*] Appeal from District Court of Hoboken. Action by Leonard Pfeiffer against Charles M. Peters. Judgment for defendant, and plaintiff appeals. Reversed and remitted for new trial. Argued June term, 1910, before SWAYZE and VOORHEES, JJ. John J. Fallon, for appellant. H. W. Lange, for respondent. But the appellant further contends that the common-law doctrine has not been recognized in this state because the statute (2 Gen. St. 1895, p. 1921, § 29) reducing the notice from six to three months applies only to the notice by the landlord, and is silent regarding that to be given by the tenant. We fail to see the force of this reasoning. This, however, makes against the tenant in the present case, for, as has been pointed out, at common law, a six months' notice was required on the part of the tenant, and, VOORHEES, J. This action was brought If the statute has not shortened it, then it to recover rent for the months of December, still remains six months. The fact remains 1908, and January, 1909. The proof was that that only a month's notice was given, and the defendant went into possession June 1, that was insufficient. The premises having 1907, and remained till December 1, 1908, been vacated by the tenant, it became the paying rent each month for the time of acduty of the landlord to rent them in diminutual occupancy, and gave a month's written tion of the damages of the tenant. This is notice to landlord that he would quit on De clearly so under the cases of Dolton v. Sick-cember 1, 1908. It was also in proof that el, 66 N. J. Law, 493, 49 Atl. 679, affirmed before entry the defendant had stipulated for 68 N. J. Law, 731, 54 Atl. 1124, and Meeker a long term of five or ten years at $60 per v. Spalsbury, 66 N. J. Law, 60, 48 Atl. 1026. month, but had entered without executing a The case shows that the tenant, upon lease, and that when the first month's rent sending the key to the landlord, was imme- was paid he said, "Here it is until we get diately notified that it was received under the lease." The written lease was never (80 N. J. L. 649) (Syllabus by the Court.) 1. HIGHWAYS (§ 147*) IMPROVEMENT-STATUTORY PROVISIONS. By the provisions of the act entitled "An act to provide for the permanent improvement of public roads in this state" (P. L. 1895, p. 437, § 17), there were two remedies given to the township for the enforcement of assessments for benefits, both of which could not be exercised, for they led to the same result. The choice between the two modes of procedure was placed in the discretion of the township committee. Until the proceedings of the township committee exhibited the course which "they may deem proper," no choice was made. [Ed. Note. For other cases, see Highways, Dec. Dig. § 147.*] 2. HIGHWAYS (§ 147*)—IMPROVEMENT-STATU TORY PROVISIONS. The determination of the collector cannot prepared. The court found as a fact that defendant had entered into possession under FAIRFIELD DAIRY CO. v. PEER, Township an agreement for a lease for five or ten years Collector. to be thereafter prepared by plaintiff and (Supreme Court of New Jersey. Nov. 5, 1910.) submitted to the defendant, and that, the plaintiff failing to prepare and submit such lease, the defendant had a right to vacate on one month's notice of his intention to quit, and therefore rendered judgment for the defendant. The reasons relied upon for reversal are that court found as matter of law that defendant had a right to vacate on one month's notice; and that defendant was not a yearly tenant or tenant from year to year. The agreement for a letting for a term in excess of three years, being by parol and not put in writing, by reason of the entry and occupation under it, created a tenancy, yet by section 1 of our statute of frauds (2 Gen. St. 1895, p. 1602) it had "the force and effect of a lease or estate at will only." It has now become settled that, though the statute creates an estate at will only, yet that estate, having come into existence, may and will be changed into a tenancy from year to year by the payment of rent. See Smith's Leading Cases Notes to Clayton v. Blakely; Doe v. Weller, 7 T. R. 478. Rent was paid by the tenant in the present case. It was said in Drake v. Newton, 23 N. J. Law, 111, that such a lease operates as a demise from year to year. Whether the latter status is evolved only after the payment of rent, or at once, upon entry, springs into being, it is not necessary here to discuss. The essential question now to be settled is what notice of intention on the part of the tenant to quit was necessary. In Den ex dem. McEowen v. Drake, 14 N. J. Law, 523, it was held that tenancies at will, so far at least as to entitle the tenant to a half year's notice to quit, are to be construed to be tenancies from year to year. Three months' notice to the tenant now by statute is sufficient. The like obligation, however, rests upon the tenant to give notice to his landlord of his intention to quit, as is borne by the landlord to notify his tenant to quit. Hanks v. Workmaster, 75 N. J. Law, 73, 66 Atl. 1097; Mitchell Fertilizer Co. v. Armour, 72 Atl. 96; Zabriskie, Trustee, v. Sullivan (June Term Sup. Ct. 1910) 77 Atl. 1075. be substituted for the discretion of the governing body in reference to the choice of remedies, and therefore the collector had no right to proceed to sell assessed property until authority had been conferred upon him for that purpose. [Ed. Note.-For other cases, see Highways, Dec. Dig. 147.*] 3. HIGHWAYS (§ 147*) — ASSESSMENTS-ENFORCEMENT-TERM FOR WHICH LAND MAY BE SOLD. The act of 1895 (P. L. 1895, p. 437, § 17) makes the term for which land may be sold for assessments such as purchasers would get at the time of its enactment for lands sold for unpaid taxes. Under such limitation, subsequently passed enactments will not be ingrafted upon the law. [Ed. Note.-For other cases, see Highways, Dec. Dig. § 147.*] 4. TAXATION (8 686*)-TAX SALE-VALIDITY. Where the recitals of a certificate of sale. made pursuant to section 52 of the general tax act of 1903 (P. L. 1903, p. 428), fail to show that there were no bidders for a shorter term than a fee, thereby a sale in fee is excluded. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 686.*] Certiorari by the Fairfield Dairy Company against Thomas Peer, Collector of the Township of Caldwell, to review a tax sale. Certificate of sale set aside. Argued June term, 1910, before GARRISON, SWAYZE, and VOORHEES, JJ. Riker & Riker, for prosecutor. J. Henry Harrison, for defendant. VOORHEES, J. This certiorari is sued out to test the legality of a certificate of sale dated February 4, 1909, made by the collector of taxes of the township of Caldwell in Essex county. The scope of this paper will be fully displayed by setting forth the recitals. The collector certifies "that at a public sale of real estate * 串 on the 26th day The defendant, having entered upon the premises under a parol lease void under the statute of frauds as to the term, and having paid rent during his occupancy, will be deemed to be a tenant from year to year for the purpose of requiring him to give notice to the landlord of his intention to quit. In such tenancies, a month's notice by the ten- of January. 1909, for the purpose of making ant to terminate the tenancy is insufficient. the amount due upon a certain assessment For that reason, the judgment will be re- for the improvement of Dutch Lane versed, and the case remitted to the district | pursuant to an act entitled 'An act for the court for a new trial. permanent improvement of public roads in For other cases see same topic and section NUMBER in Dec. Dig, & Am. Dig. Key No. Series & Rep'r Indexes |