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his close relations with Edmund, would also have left the business and gone with Edmund. The defendant, further answering, alleges that in July, 1903, Edmund proposed that, owing to the differences between himself and Howard, the partnership should be dissolved, and that the complainant and Howard should continue business together, and Edmund should go into business by himself; or that they should agree upon the value of their respective interests, and that either one or the other should buy or sell; that the complainant and Howard objected to this because it was too late in the season, and Edmund thereupon agreed to continue the business until the summer of 1904, but insisted that Howard and complainant should agree in writing that at that time they would either buy or sell, which agreement was made and signed by the parties; that, at the usual settlement in the summer of 1904, Edmund insisted upon the agreement for the dissolution of the partnership being carried into effect, and that the complainant stated to Edmund that they would prefer to accept the first proposition, which was to dissolve the partnership, and complainant and Howard keeping the business themselves, and said Edmund to go into business by himself, and this agreement was agreed to by all three members of the firm. The defend

ant further alleges that, after this arrangement to dissolve, the complainant and Howard came to defendant, Walden Stites, and invited him to unite in a copartnership with them to continue the business; that the complainant stated to defendant that he was to have his (the complainant's) interest in the business, and, when this defendant inquired what he would have to show for the same, the complainant replied that he had made a will wherein he bequeathed to defendant his interest in the business, exclusive of oyster boats and oyster grounds; that defendant was not satisfied with this arrangement, and insisted that before he would go into the business the interest of complainant should actually be transferred to him, so that he would have complete possession and control of the same; that shortly afterwards complainant told defendant to see Edmund and ascertain whether he would remain in the partnership if the complainant would transfer to the defendant his interest therein; that the defendant did so, and Edmund took the proposition under consideration, and conIcluded that, if the complainant would so transfer his interest so that defendant would be in full control thereof, he, Edmund, would not withdraw from the business, but would continue in association therewith; the defendant is upon friendly terms with Edmund and Howard also, and is the only person connected with the business whom Edmund can leave in charge thereof during his absence, and that the sole inducement for Edmund to continue in business was the transfer of the complainant's interest to the pos60 A.-48

session and control of defendant, which would give to Edmund the assurance of a fair control of the business by removing therefrom the complainant, who was under Howard's domination; that Howard expressed his satisfaction with this arrangement, and promised to see his father and ascertain whether it was satisfactory to him; that Howard afterwards reported to defendant that it was satisfactory, and arrangements were made between Howard and defendant to meet at the complainant's residence at Newport and execute the necessary papers; that defendant had the bill of sale drawn for the interest of the complainant in the oyster shipping business, whereby, in consideration of the sum of $1, the complainant sold and conveyed to complainant his onethird interest in the shipping business, his one-third interest in the scows and boats, and one-half the float frontage used in connection therewith at Bivalve aforesaid. This bill of sale the defendant took with him on July 11, 1904, first to the residence of the complainant, where he found Edmund Stites Jr., and both Edmund and the complainant came with the defendant to the house of Howard. Upon their arrival there, defendant produced the bill of sale, which was examined and read by Howard, who expressed himself as satisfied therewith, and was then read to the complainant by Edmund Stites, Jr., in the presence of Howard and of the defendant, and the complainant said that he was satisfied with it, and then executed it and delivered it to defendant. The defendant insists by his answer that the true consideration of the bill of sale was to induce the defendant to continue his connection with the business, and to obtain the valuable services of Edmund for the benefit of the business, through the influence and persuasions of defendant, and to avoid the loss to complainant and Howard which would result from the dissolution and withdrawal of Edmund and defendant therefrom, which the defendant insists would, if it had happened, have occasioned a loss in profits to complainant and Howard of at least $500 per annum to each, and that it was to save themselves from this loss, and retain the valuable services of Edmund and this defendant in the business that the proposition to transfer the complainant's interest was made to defendant by the complainant and Howard. The defendant further alleges that there was a further consideration that the defendant should pay the complainant during the term of his natural life one-third of the net profits arising from the business, after deducting therefrom $400 per annum for the defendant's living expenses. Upon the execution and delivery of the bill of sale to him, the defendant entered upon the performance of his duties as a partner until the month of September, 1904, without dissatisfaction in any respect either to the complainant or Howard Stites, and the first intimation the

defendant had of any dissatisfaction with the transaction was in September, 1904, when the complainant, with his attorney, J. Ogden Burt, visited the defendant. The defendant denies that the circumstances connected with the execution of the bill of sale happened as stated in the bill of complaint; denies that he importuned or tried to persuade the complainant to execute the bill of sale; denies that either Edmund or the defendant stated to the complainant that it would not take effect until after the complainant's death, and that there was any assurance given to complainant by anybody at the time of the execution of the bill of sale that he should retain the ownership or control of his interest during the term of his natural life; denies that no consideration was paid to complainant on the execution of the bill of sale, or that it was the intent of the complainant to make a gift of his interest which should take effect only after complainant's death, and insists that the transfer of complainant's interest was upon a full, fair, valuable, and sufficient consideration; denies that the complainant had no knowledge of the bill of sale until it was produced to him by the defendant, and insists that Howard Stites had stated to complainant that such a bill of sale was to be submitted to him for execution; admits that in September, 1904, Mr. Burt, the attorney, and the complainant interviewed the defendant and demanded a return of the bill of sale, and that the defendant refused to return it, and insisted that it was a valid transfer of complainant's interest. He admits that the complainant and Burt requested a copy, and avers that as soon as he had an opportunity to do so he made a copy of it and sent it to Mr. Burt. He denies all misrepresentation in obtaining the bill of sale, and that it was executed by complainant in the belief that it was not to take effect until after complainant's death; and denies that the claim of defendant under the bill of sale is a fraud on the complainant or an abuse of any confidence reposed in defendant, and, further, that there was any mistake in executing the bill of sale, and that the complainant has any right, legal or equitable, to have it canceled. Issue was joined on these pleadings, and the causes came on for hearing.

J. Ogden Burt and W. H. Bacon for complainant. Wm. A. Logue and Warren Dixon, for defendant.

GREY, V. C. (after stating the facts). The proofs in this case show, without substantial dispute, that the complainant, Capt. Edmund Stites, established many years ago an oyster shipping business at Bivalve, in Cumberland county. He took two of his sons, Edmund Stites, Jr., and Howard Stites, into his business as equal partners with himself, without their paying him anything therefor. In July, 1904, the complainant was 82 years

of age, in feeble health, nearly blind, could not read a page of writing, could scarcely sign his name, and, as he appeared on the witness stand, was incapable of comprehending the meaning of the usual and ordinary words of a conveyance, and still less their operative force and effect, unless aided by patient and careful explanation. His business capacity is perhaps appreciatively, if not respectfully, expressed by the defendant in his answer, when he described his father as so lacking in business experience and capacity that he never bestowed on the partnership business any more time and attention than would be required of an ordinary hand on the wharf. The defendant, Walden Stites, had for years intimately known his father's incapacities, both mental and physical, and, because of his father's physical infirmities and lack of business knowledge, had been employed and paid by his father to perform, in his stead, his duty to the firm. He testified on the stand, relative to the conduct of the business of a proposed new partnership, that "Pop is too old." It is also plainly to be seen that the defendant had secured the entire confidence of his father, who relied upon his good faith without hesitation or doubt. As the business was conducted prior to the making of the disputed bill of sale on July 11, 1904, the partners were the father, Capt. Edmund Stites, and the two sons Edmund Stites, Jr., and Howard Stites. The defendant, Walden Stites, had no interest in the firm; he was merely an employé. His own testimony defines his anxiety to become the owner of a present interest in the firm, when he narrates that on July 8, 1904, he told his father that, when he dropped off, "the rest of the heirs would come in and do me out. I would not have anything to show." "Oh!" said the father, "that can't happen; they couldn't take it away from you after I am gone. I have willed it to you.”

This was the situation of the parties to each other just before the bill of sale of July 11, 1904, was procured by the defendant from his father. The incidents of that day are narrated by the defendant himself in his testimony, as follows: The defendant had the paper drawn by a justice of the peace, and had an appointment with Howard Stites that on the afternoon of July 11, 1904, he should come to Howard's house, which was next door to their father's house. At this time the defendant testifies he had not spoken to his father about the bill of sale. The defendant took it with him to Howard's house, but did not show it to him, and waited there about half an hour until Edmund Stites, Jr., arrived and went into the father's house. The defendant then went over to the father's house, and said, "Let's go and settle this up.” The three of them, the father, Edmund, Jr.. and the defendant, then went over to Howard's house together, into the dining room. The defendant produced from his pocket a bill of sale upon some one's request, and

started to read it. The father said, "Let Eddie read it." Edmund Stites, Jr., then read it carefully, as it was written. After that the defendant asked the father if that

was satisfactory. He said it was. It was then passed to Howard, who read it, and said, "It suits me." It was then executed, and Howard returned it to the defendant, who put it in his pocket. After he had put it in his pocket he said, "Now, Eddie, understand that you pay Pop the one-third of the profits the same as you always did; I can work the same as I always did, for Pop is to get the profits, not me. Is it all right?" Eddie says, "It is."

This is the defendant's own account of the obtaining of the bill of sale in dispute. An examination of its contents will show that it is an absolute transfer to the defendant, for the nominal sum of $1, of all the interest of Capt. Edmund Stites in his oyster business and its equipment, which, it is proven, produced to him an annual value of from $800 to $1,000. Nothing in the instrument reserves to him the one-third profits of the business the same as he had always had.

This bill of sale, it is undisputed, was drawn at the dictation of the defendant, by a person selected by him, apparently in the absence of the complainant, and without consultation with him. It was not shown to or read or explained to him, or seen by him, until the moment when he was induced by the defendant to execute it. He had not the protection of the advice of counsel upon it, nor even the aid of a disinterested, intelligent business man. The defendant was, of course, intensely interested that his father should presently give him his third of the oyster business. Edmund Stites, Jr., was also desirous of getting the old man out of the firm. Howard Stites, whose capacity the defendant in his answer rates as that of an ordinary laborer, is stated by the defendant in his answer to have joined with the other sons to take from the old man his interest in the business.

In September, 1904, the father demanded from the defendant the return of the bill of sale. The defendant refused him. He then brought a lawyer, Mr. Burt, who told the defendant that he wanted to see the paper, because his father wanted to be told exactly what kind of a paper he had executed. The defendant did not show it, but said it was all right; that it was just what it undertook to be, and he meant to keep it. Mr. Burt then asked for a copy, and the defendant said he would send him a copy the next day. This he did not do, but a few days later he called at Mr. Burt's office with an incomplete paper, which was a suggestion of a copy, saying he was not going to make a copy, it was to much work. Another demand to see the original, or for a copy, was made on the defendant, and a day or two after he sent what purported to be a copy. The account given by the complainant and by Howard

Stites and his wife touching statements made to the father to induce him to sign the paper vary considerably from that given by the defendant and Edmund Stites, Jr. Capt. Stites, the complainant, as he appeared on the witness stand, is obviously a very old man, nearly blind, illiterate, and ignorant of business methods. He testifies that he was told that the paper did not take effect till after his death, and he would not have signed it otherwise. Howard Stites testifies that, on the occasion when the paper was executed, it was read to his father by Edmund Stites, Jr., at the defendant's request, and that his father, before he signed it, was told by the defendant that it did not take effect until after the father's death. Mrs. Howard Stites testifies that in passing in and out of the room she heard the part of the conversation in which this assurance was given by the defendant. The defendant's counsel, in crossexamining Howard Stites, asked him if he did not have an appointment with his father to come to his house for the purpose of signing this paper. Howard Stites said he had not; that it was the defendant, and not he, who went in for his father and brought him into Howard's house to execute the paper.

There was also an effort to put in evidence, as admissions binding upon the complainant, statements made by Howard Stites (touching the subject of the bill of sale), out of the complainant's presence, upon the ground that the complainant and Howard were partners, and that this gave Howard a right to speak to bind his father. This proposition was overruled. The authority of a partner in speaking to bind his partner is limited to words spoken in the conduct of the partnership business. The making and obtaining this bill of sale from Capt. Stites was not the conduct of partnership business. It dealt, it is true, with Capt. Stites' share of that business, but the firm as such was in no sense a party in the transaction.

Upon the evidence in the whole case, I am satisfied that that the complainant was led to give the bill of sale to his son, the defendant, under the belief that it would not operate to take away his share of the business until after his death. The principles stated in the per curiam opinion of the Court of Appeals in the case of Thorp v. Smith, 65 N. J. Eq. 401, 54 Atl. 412, are applicable here. The complainant in the case now before me was advanced in years, in a feeble condition of health, nearly blind, unable to read the disputed instrument, which was prepared beforehand under the direction of the defendant, the son who expected to benefit by its execution. The complainant was obviously so unacquainted with business methods that he was unable to understand the meaning and effect of the bill of sale without careful and extended explanation. The instrument was kept by defendant in his own possession, without reading or explanation to the complainant, until the defendant was ready to

have it executed. The complainant had never theretofore seen the paper; he had no opportunity to consult counsel, or have the advice of any disinterested, intelligent business man. It disposes of property which produced to the complainant from $800 to $1,000 annually.

The defendant and Edmund Stites, Jr., insist that the complainant comprehended the fact that by the bill of sale he was presently giving away his one-third interest in the oyster business, upon an understanding that the defendant should allow his father to have the profits of his share (less $400 annually) as long as he lived; and that the complainant | did this in order to put the defendant into the firm, so that he and Edmund Stites, Jr., might control it, and thus induce Edmund Stites, Jr., not to leave the firm and set up business for himself in opposition to his father.

There is some testimony which indicates that one of the motives which led the old man to the making of the bill of sale was the assurance that it would pacify the disputes which had arisen between his two sons Edmund Stites, Jr., and Howard. But proof of the existence of the old man's desire for peace in the family does not show that he intended by the bill of sale presently to give away his share of the business to obtain that peace, nor does it show that when he made that instrument he understood that he was making an obsolute, presently operating gift of his share in the business to the defendant. The complainant and Howard Stites both declare that the old man was assured by Edmund and Walden that the instrument did not take effect until after his death. Mrs. Howard Stites heard some such assurance given to the old man. Their statements appear to me to be much more credible, and consistent with the whole transaction. The instrument itself purports to be an absolute bill of sale, presently passing title to the complainant's share of the oyster business and its equipment to the defendant. It mentions no other consideration than the nominal sum of $1. The consideration declared by the defendant to have been a part of the bargain, i. e., a reservation to the complainant of the profits on the share conveyed to the defendant, less $400 annually, was not a valuable one. The complainant already owned all those profits.

The defendant's further contention is that the transaction was an effort by the old man to bring his sons Edmund and Howard into peaceful relations-a sort of harmonious family adjustment. Edmund was to abandon his purpose to start business in opposition to his father, Waldie was to give up his plan to join him, Howard was to be outvoted in the firm, and the complainant was constrained to pay for this peace by presently giving his share of the business to Waldie for nothing. Not a word of this was expressed in the written bargain. The opinion

of the courts of New Jersey upon transfers
of property obtained by children from a par-
ent who is aged, infirm, and dependent upon
them, by threats to subject him to loss and
embarrassment if he does not give his prop-
erty to suit them, may be seen in the Sickels'
Will Case, 63 N. J. Eq. 233, 50 Atl. 577, in
Court of Errors and Appeals, 64 N. J. Eq.
791, 53 Atl. 1125, where threats to abandon
an old bedridden father were held to invali-
date a will, obtained by such methods, to be
made in favor of the son and his wife, who
lived with the father, and made the threats.

Taking the narrative of the transaction as
given by Walden and Edmund Stites, Jr., to
be true, it yet remains that they obtained
from the complainant this conveyance of all
his share in the business without paying or
agreeing to pay him any valuable considera-
tion therefor, and upon an assurance that
after the conveyance he should continue to
have the income from his share during his
life. It is perfectly apparent that the com-
plainant in this transaction depended upon
the defendant, who was not only his son, but
also his trusted employé. His age, his in-
firmities, his ignorance of such business, and
his reliance on the defendant, made him pe-
culiarly liable to be misled. The bill of sale,
as prepared under the defendant's direction,
is amply efficient to pass to the defendant
the complainant's title, but makes no men-
tion of any reservation to him of the one-
third of the profits of the business during his
life. All the benefits of the expressed bar-
gain are with the defendant; none of the
admitted reservations saving anything for
the complainant appear in the written con-
tract. This phase of the case is within the
principles discussed and applied by Vice
Chancellor Van Fleet in Mulock v. Mulock,
31 N. J. Eq. 601. In that case three separate
deeds of gift, were obtained by a son to be
made by his old mother to him, two of them
under a belief on her part that they were
releases. The defendant son testified that
the mother said "she would give him the
properties, but would keep the rents, and that
he said, 'Very well.'" The two deeds were
in fact absolute conveyances of large values,
reserving nothing. The vice chancellor held
that it was the duty of the son in such a
case to see that the instruments to be exe-
cuted by his mother were sufficient, legally,
to carry her whole scheme into effect, and
also to see that she fully understood their
nature, effect, and consequences; and that a
failure in any one of these important duties
was a fraud, which must set the whole con-
tract aside. On appeal, 32 N. J. Eq. 361, the
Court of Appeals declared that the validity
of the two deeds could not be maintained,
but reversed the decrees so far as it set
aside the third deed, because, in the view of
the Court of Appeals, the evidence showed
that deed to have been intelligently and free-
ly made by the complainant. The principles
of law declared by the vice chancellor were

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not in any way disapproved. The same views have been declared in various other cases of like character, to the effect that, where one who occupies the position of a caretaker obtains the person who depends upon him to convey his property to the caretaker in consideration of his agreement to render future services or support, it is the duty of the caretaker to see that the consideration which is to proceed to the dependent party is expressed with the same certainty and facility of proof as that which passes to the caretaker. Mott v. Mott, 49 N. J. Eq. 209, 22 Atl. 997; Hammell v. Hyatt, 59 N. J. Eq. 187, 44 Atl. 953; Collins v. Toppin (N. J. Ch.) 55 Atl. 139.

execution on January 23, 1905; that Mary A. Tice made proper claim of ownership in the property levied upon by delivery of such claim to the constable on January 23, 1905, and the issue raised by said claim was tried on February 2, 1905. The contention is that a previous notice had been served upon the constable by mail on January 17, 1905, making a similar claim of property to that of the notice of January 23d. That proceedings were taken under the first notice and dismissed on the objection of the prosecutor, because the notice of January 17th was not delivered to the constable in person, appears by the return to the writ. I see no reason for setting aside these proceedings for this cause. When the claim of property was tried in this case, the sale under the execution had not occurred. It had been delayed after the notice of January 23d, and within 10 days thereafter the case was tried and determined.

The complainant in this cause, because of his physical infirmities, his ignorance of business methods, and the contrivance of the de-t fendant, which required him instantly and finally to act in making the bill of sale, was in a condition of entire dependence upon his sons, particularly the defendant, whom he utterly trusted. The defendant's interests were, as is stated above, perfectly cared for by the bill of sale, but the complainant's were not only not protected, but the instrument was so drawn that they were apparently excluded.

The bill of sale should be declared a nullity in accordance with the views above expressed.

GOLTRA v. TICE.

(Supreme Court of New Jersey. April 26,

1905.)

EXECUTION-CLAIM OF PROPERTY-DESCRIPTION
-NOTICE TO CONSTABLE-PROCEED-
INGS DISMISSAL.

1. Where a claim to property levied on was tried under a notice personally delivered to the constable making the levy before any sales of the property had occurred, the fact that former proceedings taken under a prior notice had been dismissed on the prosecutor's objection that the notice had not been personally delivered to the constable was no ground for setting aside proceedings under the second notice.

2. Where a constable levied on property by naming several articles of the same kind as so many of that kind, a claimant of such articles was entitled to claim three of them described in the same way without particularizing them, and prove the three so claimed.

Certiorari by John Q. P. Goltra against George W. Tice to review a judgment rendered by a justice of the peace. Affirmed.

Paul Q. Oliver, for prosecutor. Frederick S. Taggart, for defendant.

FORT, J. An examination of the return to the writ in this case shows that all the proceedings brought up for review were regular. The justice in this case had jurisdiction under section 62 of the small cause act (P. L. 1903, p. 270). The proof is that a notice of claim of property was delivered to the constable making the levy under the

An examination of the case also shows that there were no errors injurious to the prosecutor in the rulings of the justice upon the evidence objected to. Nor do I think there was any such indefiniteness in the description of the property claimed as to justify the setting aside of the proceedings. The prosecutor could not be misled. He had levied upon the property by naming several articles of the same kind as so many of that kind. For the claimant to claim three of these described in this way, without particularizing them, was not objectionable. She could, as she did, prove the three she claimed, and the justice's finding on the evidence is sufficiently specific to show the offi. cer holding the execution what articles are found to be the property of the claimant. Great nicety in cases of this kind, which are for the protection of persons owning property, should not be required to support a judgment in a justice's court, where it is clear the court had jurisdiction, and the parties had their day in court, and the issue was fully and fairly tried.

The proceedings of the small cause court are affirmed with costs.

(69 N. J. E. 429)

WEST JERSEY & S. R. CO. v. SMITH et al. (Court of Chancery of New Jersey. April 23, 1905.)

INJUNCTION-RESTRAINING EXECUTION SALE

FRAUD.

1. In the absence of fraud, gross injustice, irremediable injury, or other ground of equitable jurisdiction, a court of chancery will not restrain a threatened sale under execution against one person of property claimed by another, though the latter has a bill to quiet title pending.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Execution, §§ 507-510.]

2. Where real estate claimed by plaintiff is threatened with a sale under execution against another, the fact that the execution creditor

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