Manhattan Manufacturing Co. v. N. J. Stock Yard Co.

purpose of the manufacture. These were completed by January 9th, 1871. In the meantime arrangements had been made by the complainant with the stock company and its employees for coagulating the blood on the premises, and for preventing nuisances arising from slaughtering in the abattoir. Part of this coagulated blood had, with complainant's acquiescence, been delivered to John J. Craven, one of the defendants, for making experiments or manufacturing it.

In April, 1871, the stock yard company leased its abattoir to Henry R. Payson and David H. Sherman, two of the defendants, who have since carried on the business under the name of D. H. Sherman & Co. The defendant, Isaac Freese, who was in the employ of the stock yard company as superintendent, and continued in the employ of D. H. Sherman & Co. in the like capacity, entered into partnership with the defendent, Craven, who was also in the employ of the stock yard company at the making of its lease to the complainant, and with the defendant, Sherman, under the name of "The Bergen Manufacturing Company," for the purpose of manufacturing albumen and fertilizers.

After January 9th, 1871, the complainant demanded all the blood of the animals slaughtered at the abattoir, but Craven made an arrangement with certain butchers who slaughtered there, for saving and taking the blood of the animals slaughtered by them, and this was permitted by Sherman & Co., and Freese, their superintendent; and a large part of the blood is thus taken and delivered to Sherman, Freese, and Craven, and is lost to the complainant.

By the record of the lease to the complainant, Sherman, Craven, and Freese had constructive notice of its contents, and also it is clear that they, as well as Payson, had actual notice. They do not deny this, but take the ground that the blood, like all other parts of the animal slaughtered, belongs to the butcher, and that they or the stock yard company, can no more control or deliver it than they could control the flesh or hides. That the butchers having discovered that the blood has

Manhattan Manufacturing Co. v. N. J. Stock Yard Co.

a merchantable value, have a right to dispose of it for their own benefit; and that when they had determined to sell it, and not to abandon it, Craven was under no obligation not to buy it, and his firm might receive it through him without breach of faith.

This defence, at first sight, is seemingly good; but it wholly rests upon the correctness of the premises, to wit, that the stock yard company had not the right or power to control the disposition of the blood. It is not claimed that it had, before the complainant's lease, granted to any one the privilege of slaughtering there. If it had, for a term unexpired, it would have lost the control. Before that, they had permitted butchers to slaughter there without any provision about disposing of the blood or offal. It may, by custom, have been the effect of such contract, that the butcher might leave the blood and offal to be removed by the company. If left, the company was liable for any nuisance occasioned by it. It cannot be doubted that the company could have required, as a condition, that the butchers should remove the blood and offal. It had the right to prevent any one from using the abattoir who would not comply. Before the lease to the complainant, this condition would have been deemed a burden on the butchers, and might have injured the business of the company. It was in difficulty by reason of the nuisance caused by leaving these matters, and the injunction growing out of it. It was relieved by this lease. The consideration was the exclusive right to take the blood and offal which was secured by covenant to the complainant. After that, the company had the same right to demand of every one using? the abattoir that he should leave these matters for the complainant, as it had to require him to remove them. This could have been annexed as a condition to every permission to use the abattoir, as well as the condition to pay for the use. And this, by its covenant, the company was bound to do./D H. Sherman & Co., as the lessees, are bound by the same, Covenant./And Freese, Craven, and Sherman having notice of this obligation before they commenced their business, are

Manhattan Manufacturing Co. v. N. J. Stock Yard Co.

bound to refrain from 'interfering with these rights of the complainant, and from taking the blood and other matters which it is entitled to take. Tulk v. Moxhay, 2 Phil. 774; De Mattos v. Gibson, 4 De G. & Jones 276.

The facts that Freese and Craven transferred to the complainant their claim to a patent for making albumen from blood, and took part in the arrangements for the lease by the company in whose employ they were, and that Craven interfered by these negotiations with the butchers after he was repulsed in his attempt to get into the employ of the complainant, do not give greater validity to the complainant's right; they may show bad faith and vindictiveness, and that they are not entitled to any favorable consideration beyond their legal rights.

The injunction applied for is not a mandatory injunction ; it is not to require the delivery of the blood, but to restrain Craven from taking it, and the other defendants from suffering or permitting any other person than the complainant to take it.

For this injury there is a remedy at law, but it is not an adequate remedy. The value of the blood is no measure of the injury, and it is hardly possible to compute the damages which the injury may occasion. And redress at law could only be obtained by a continued series of suits through the twenty or forty years of the complainant's term. It is a case peculiarly proper for the preventive remedy by injunction. Shreve v. Black, 3 Green's Ch. 177.

The defendants, in their answers, deny that the seal of the stock yard company was affixed to the lease by authority of the directors. The bill alleges that the stock yard company made and executed the lease under its corporate scal, and sets out a lease with the seal affixed, and signed by the president. The answer of the company is not verified by any one who has knowledge of the facts. The present secretary swears that he believes the facts to be true. Any deed of a corporation, under its corporate seal and signed by the proper

Stearns v. Stearns.

officer, is presumed to have been executed by authority of the corporation, until the contrary is clearly shown. Leggett v. N.J. Man. & Bank'g Co., Saxt. 541. There is no proof here to overcome this presumption.

The injunction must issue as prayed for.

STEARNS vs. STEARNS.

1. A sworn answer, directly responsive to the charge on which the equity of the bill depends, and of a fact within the personal knowledge of the defendant, must prevail against the uncorroborated testimony of the complainant.

2. A recital in a deed of a consideration, and that it was paid, does not estop the grantor from showing that some other or additional consideration was agreed to be paid; but such recital, under seal, in a solemn instrument, cannot be overcome except by clear, strong evidence against it.

This cause came on for final hearing on bill, answer, and proofs.

Mr. T. Runyon and Mr. Stone, for complainant.

Mr. R. S. Green and Mr. C. Parker, for defendants.

THE CHANCELLOR.

The suit is to compel the defendants to pay and secure an annuity of $1500, yearly. The complainant alleges that the defendants agreed to pay and secure to her this annuity as the consideration of her joining with her husband, Eckley N. Stearns, since deceased, in conveying to them the one-half of the real estate of his deceased brother, Josiah O. Stearns, in Hudson county, in this state, and in the state of Pennsylvania, which descended to Eckley N. Stearns, and the defendant, Amos C. Stearns, as heirs-at-law of their brother Josiah. This agreement is alleged to have been made by the defend

Stearns v. Stearns.

ants with Eckley N. Stearns before the execution and delivery of the conveyance.

The defendants answer under oath, as required by the bill, and in their answer fully deny the making of any such contract as charged in the bill. This answer is directly responsive to the charge on which the equity depends, and is of a fact within the personal knowledge of the defendants.

This responsive answer must be overcome by proof of more than one witness, or by the evidence of one witness, corroborated by other proof of like value. There is no direct proof whatever to overcome or contradict it; there is no witness who claims to have been present at the making of any such contract. The only proof is the evidence of Mr. E. G. Brown, who had a conversation with one of the defendants, in which he stated that such agreement had been made. But even this witness states that the conversation might have been about an annuity to be secured by complainant's husband by will. There is nothing whatever in the case to strengthen or support this evidence, and the rule of equity, as to the effect of the answer, must prevail.

In this case both deeds state the consideration, and that it was paid; and although this does not estop the grantors from showing that some other or additional consideration was agreed to be paid, such recital, under seal, in a solemn instrument, cannot be overcome except by clear, strong evidence against it. In this case the evidence is very conflicting, and the witnesses for the defendants are most in number, and without the rule as to the effect of the answer, it would be hardly sufficient to overcome the recital in the deed.

The bill must be dismissed, but without costs, as it was filed under circumstances to show not only that it was in good faith but warranted by circumstances, and that the complainant in the transaction has been, without compensation, deprived of real rights.