(85 N. J. L. 285) name and address, and told him to call for STICKEL ▾. UNITED STATES EXPRESS her trunk at Spitznagel's and deliver it to CO. her home. Nothing else then took place ex (Court of Errors and Appeals of New Jersey. cept presumably the assent of the agent. Nov. 17, 1913.) (Syllabus by the Court.) 1. PRINCIPAL AND AGENT (§ 101*)-AUTHORI TY OF AGENT-ACCEPTANCE OF RECEIPT- Plaintiff, on leaving a hotel, told the proprietor that the defendant's agent would call for her trunk, and asked him to deliver it to the agent and get a receipt. Plaintiff stopped at the express office and arranged with the agent to call for the trunk and to transport it to her home. The driver called for and received the trunk and gave a receipt containing a limited liability clause. Held, that the hotel proprietor had no authority from plaintiff to assent to such limited liability clause, but that his author: ity was restricted to delivering the trunk and obtaining a receipt therefor. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. 88 255, 256, 330, 346; Dec. Dig. 101.*] She left the trunk in her room, and was on her way home when she saw the agent. She further testified that she had told Spitznagel to let the expressman have the trunk and "to get a receipt for it." Spitznagel's testimony indicates that this instruction reached him through his wife, but the point is immaterial. He delivered the trunk to the expressman when the latter called, and, according to his testimony, Mrs. Spitznagel called out, "Don't forget to get a receipt." His testimony proceeded thus: "I said, 'All right;' so I asked the expressman to give me a receipt. He said, 'I haven't got no blank with me; it is out in the wagon;' and with that he turns around, picks up the trunk, and puts it in the wagon. I went out to the wagon and waited while he wrote out this receipt on Gummere, C. J., and Trenchard, J., dissent- top of the trunk. Q. Was that all that was ing. (Additional Syllabus by Editorial Staff.) 2. PRINCIPAL AND AGENT (§ 101*)-AUTHORITY OF AGENT "RECEIPT" The word "receipt," as in common use, means no more than a bare acknowledgment of having received something, and a hotel proprietor's authority from a guest to deliver a trunk to a carrier's agent and to "get a receipt for it" did not authorize him to make a special contract for its transportation. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 255, 256, 330, 346; Dec. Dig. § 101.* For other definitions, see Words and Phrases, vol. 7, pp. 5987-5990.] Appeal from Supreme Court. Action by Emma Stickel against the United States Express Company. From judgment of the Supreme Court, reversing judgment of the District Court for plaintiff, plaintiff appeals. Judgment of the Supreme Court reversed, and that of the District Court af firmed. Merritt Lane, of Jersey City, for appellant. McDermott & Enright, of Jersey City, for appellee. said? A. That was all. Q. Did you read the receipt? (Objected to. Objection sustained.)" [1] On this state of facts, which was undisputed, the Supreme Court held or assumed that Spitznagel was plaintiff's agent to ship the trunk, and under the rule declared in Russell v. Erie R. R. Co., 70 N. J. Law, 808, 59 Atl. 150, 67 L. R. A. 433, 1 Ann. Cas. 672, his authority, not being limited, extended to the making of a limited liability contract; that he received the receipt in silence and plaintiff, as his principal, was therefore bound by its terms. Atkinson v. New York Transfer Co., 76 N. J. Law, 608, 71 Atl. 278; Hill v. Adams Express Co., 82 N. J. Law, 373, 81 Atl. 859. We consider that the Supreme Court erred. not the agent of plaintiff for the purpose of Spitznagel, as the trial court intimated, was shipping the trunk. The order for shipment, as the trial court was entitled to find, had been given by plaintiff, and the shipment was complete except the actual delivery of the trunk to the carrier. Plaintiff had instructed defendant to call and get the trunk and transport it to Jersey City, imposing and assenting to no restrictions, but leaving it to the company to charge a reasonable rate based on its general liabilty as a common carrier, where no special contract has been the company undertook to carry the trunk on that basis. PARKER, J. This was an action in the district court to recover the value of plaintiff's trunk and contents, intrusted to defendant for carriage from Highlands, N. J., to Jersey City, and consequently an intrastate ship-made, and it was the natural inference that ment. The fundamental question for decision is whether plaintiff is bound by the limited liability clause printed on the margin of the express receipt. The trial court held that under the circumstances of the case she was not; the Supreme Court held the contrary and reversed the judgment of the district court. The appeal is from that reversal. Plaintiff had been boarding at the hotel of one Spitznagel at Highlands and, according to her testimony, went to the express office at the railroad station, gave the agent her [2] The rights and liabilities thus arising, Spitznagel had no authority to alter or vary. His authority was to deliver the trunk and to "get a receipt for it," not to make a special contract for its transportation. The word "receipt," as in common use, means no more than a bare acknowledgment of having received something. Erie R. R. v. Wanaque Lumber Co., 75 N. J. Law, 878, 69 Atl. 168. So, if it had appeared that Spitznagel ex pressly assented to the limited liability at grade; that it became the duty of the clause, the plaintiff was not bound by such assent, for it was beyond the scope of his agency. He had not even an apparent agency to ship, for the shipment had already been made by his principal. The case of Russell v. Erie R. R. Co., therefore, becomes authority for sustaining the plaintiff's claim for the value of the trunk and contents, irrespective of a limited liability clause. The judgment of the Supreme Court will be reversed, and that of the district court affirmed. railroad company by reason of the extraordinary danger, due to obstruction of view, to give reasonable notice and warning, not only by the ringing of the bell or blowing of the whistle as required by the statute, but also by other signals or extra precaution by means of a flagman or gates or otherwise; that the plaintiff, an infant, sustained injuries in a collision with defendant's engine while proceeding along said highway. The negligence averred is that defendant failed to sound a whistle or ring a bell as provided by the statute, and failed to give any warn GUMMERE, C. J., and TRENCHARD, J.,ing of the approach of said engine, and fail dissent. (85 N. J. L. 197) BLACK V. CENTRAL R. CO. ed to have at said crossing any flagman or other servant or any warning device of any nature or kind whatsoever, and failed and neglected in any manner to notify plaintiff of (Court of Errors and Appeals of New Jersey. the approach of said engine. Nov. 17, 1913.) (Syllabus by the Court.) 1. NEGLIGENCE (§ 32*)-IMPLIED INVITATIONPRIVATE WAY-USE AS STREET DUTY OF LANDOWNER. A landowner whose conduct is such as to induce members of the public to use a private way under the belief that it is a public street owes to them the same duty as if such way were in fact a public street. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 42-44; Dec. Dig. § 32.*] Gummere, C. J., and Swayze and Voorhees, JJ., dissenting. TION. (Additional Syllabus by Editorial Staff.) 2. NEGLIGENCE (§ 32*) "IMPLIED INVITA"Implied invitation" is part of the law of negligence by which an obligation to use reasonable care arises from the conduct of the parties. Ed. Note.-For other cases, see Negligence, Cent. Dig. 88 42-44; Dec. Dig. § 32.* For other definitions, see Words and Phrases, vol. 4, p. 3432.] 8. DEDICATION ( 1*)—NEGLIGENCE (8 32*) "IMPLIED INVITATION." The place of accident was within the terminal yard of the defendant at Communipaw, where the railroad property, extending on both sides of a roadway, is connected by crossover tracks at several points, at one of which crossings the collision took place. The crossing in question is between 500 and 1,000 feet westerly from the docks and ferry of the defendant and nearly half a mile distant from the entrance to the railroad property from the west. The roadway which connects with Johnson avenue, a street of Jersey City, and continues it through the railroad property has existed for very many years, and affords a way to the docks and ferries of the defendant. There was evidence of the constant use of such way by such of the public as had occasion to use it, and no proof that any one was prevented from using it. The railroad company originally built the road. About four or five years ago the road was paved with granite blocks by the railroad company at its own expense, and is maintained by the railroad company at its The distinction between the doctrine of "im- own expense. The road is lighted with elecplied invitation" and "dedication" is both clear tric lights paid for by the railroad company. and fundamental; dedication being the permanent devotion of private property to a use that The pavement is repaired from time to time concerns the public in its municipal character, by the railroad company at its own expense. whereas, the doctrine of implied invitation is a rule of negligence applicable to the owner of property as long as he holds it out as intended for use by the public in their capacity as individuals. [Ed. Note. For other cases, see Dedication, Cent. Dig. 88 8, 10-12; Dec. Dig. § 1;* Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.* For other definitions, see Words and Phrases, vol. 2, pp. 1908-1918; vol. 4, p. 3432; vol. 8, pp. 7629, 7630.] The road is also sprinkled and cleaned from time to time by the railroad company at its own expense, and for the past 25 years has been policed by the police of Jersey City. At the points where the railroad tracks cross this roadway watchmen are regularly stationed and maintained by the defendant. The plaintiff, a boy of 15, was employed by the United States Express Company under a contract similar to that passed upon in the Appeal from Circuit Court, Hudson County. Action by Charles Black against the Cen-case of Dodd v. Central R. R. Co., 80 N. J. tral Railroad Company. From judgment for defendant, plaintiff appeals. Reversed. Law, 56, 76 Atl. 544. On the evening of the accident, having finished work for the day, the plaintiff started to drive his team to the This was an action for damages for per- company's stable. The facts concerning the sonal injuries, in which a verdict for the accident, stated most favorably to the plaindefendant was directed at the trial. The tiff, as they must be where a verdict for tho declaration is that defendant operated a defendant has been directed, are that, as the railroad track over a certain public street or plaintiff drove his team along the roadway highway, commonly called Johnson avenue, known as Johnson avenue, he approached a railroad crossing, and when near to it stop ped his team, and listened for approaching trains, and, hearing nothing to indicate such approach, he started on, and crossed the first track, and had nearly cleared the second when his wagon was struck by a locomotive engine proceeding from behind some sheds on the north side of the track. This engine was running in a southerly direction, and no bell was rung or whistle sounded until immediately before the engine struck the wagon. There was no flagman at the crossing to warn the plaintiff. There was contradictory testimony as to all of these matters, and at the close of the case counsel for the defendant moved for the direction of a verdict on three grounds: First, that the plaintiff was a mere licensee upon the private property of the defendant, as to whom no ac tionable negligence had been shown; second, that there was no evidence that the place where the accident happened was a public highway; and, third, contributory negligence. The motion was granted, and the plaintiff took this appeal. Warren Dixon, of Jersey City, for appellant. McDermott & Enright, of Jersey City, for respondent. GARRISON, J. (after stating the facts). [1] The plaintiff was injured while driving along a way which, if not a street, had very much the appearance of one. It was a continuation of a city street. It was paved like a street. It was lighted and sprinkled like a street. It was patroled by the city police like other streets, and where it was crossed by railroad tracks flagmen were stationed as is customary at street crossings. All of these things, with the exception of the police patrol, were the acts of the defendant. If, therefore, the way in question presented the appearance of being a street, the defendant had created such appearance, and was therefore responsible for the consequences, one of which was that persons generally might use the way in the belief that it was what it appeared to be. As to such users the liability of the defendant, arising out of the appearance so created by it, would be the same as if such street actually was what it appeared to be, under the rule that "one who holds out a way as a public street is liable." 29 Cyc. p. 454. from express or inferred invitation, which is limited to those having business with the owner of lands or upon his premises. [2] The general doctrine of implied invitation is thus stated in one of our own cases (Furey v. New York Central & Hudson River R. R. Co., 67 N. J. Law, 270, 51 Atl. 505): "Implied invitation, therefore, is part of the law of negligence by which an obligation to use reasonable care arises from the conduct of the parties; its essence is that the defendant knew or ought to have known that something that he was doing or permitting to be done might give rise in an ordinarily discerning mind to a natural belief that he intended that to be done which his conduct had led the plaintiff to believe that he intended." Hence, in the present case, if the defendant ought to have known that by giving to its private way the appearance of a public street it might give rise to the natural belief that it intended the way to be so used by the public, the doctrine stated is applicable to such facts and inferences as a jury might have found from the testimony. This doctrine is aptly illustrated in a Massachusetts case (Holmes v. Drew, 151 Mass. 578, 25 N. E. 22), which was an action for personal injuries sustained by the plaintiff upon land belonging to the defendant not dedicated as a public sidewalk but made to resemble one. The facts were these: The defendant owned a lot fronting on a public street of Boston. The building on this lot, in common with those on adjoining lots, had been set back from the street line, and a brick sidewalk laid by such owners in the intervening space. In front of the defendant's building this sidewalk was nowhere less than eight feet wide, of which but eight inches were included within the limits of the street; the remainder being entirely upon the defendant's land. This entire sidewalk was so constructed by the defendant as apparently to constitute a public sidewalk, with nothing to indicate any difference or line of separation between what was public and what was private. The plaintiff was injured by loose bricks that had been permitted to remain in a condition dangerous to pedestrians on the part of the walk that was on the defendant's private property. Dealing with the question of the defendant's liability upon this state of facts, the Such liability is based, not upon the land- court said: "The jury might have inferred owner's dedication of the street and its ac- from the facts stated that the defendant laid ceptance by the public, but upon the appear-out and paved the sidewalk on her own land ances he has created, so that the question in order that it should be used by the public for the jury is not whether such acts of the owner were proof of an intention to dedicate a public street, but whether they had created an appearance calculated to induce the public to use the way in the belief that it was what it appeared to be. Although the fundamental principle that underlies this doctrine is that of estoppel, it is generally treated under the head of im as a sidewalk of the street, and allowed it to remain apparently the part of the street that was intended to be used by foot passengers. This would amount to an invitation to the public to enter upon and use as a public sidewalk the land so prepared." Referring to this case, Judge Knowlton (afterwards Chief Justice) said, in Plummer v. Dill, 156 Mass. 426, 31 N. E 128, 32 Am. St. Sweeny v. Old Colony & Newport R. R. Co., 10 Allen, 368 [87 Am. Dec. 644], and Holmes v. Drew, 151 Mass. 578 [25 N. E. 22], belong which stand on a ground peculiar to themselves. They are where the defendant by his conduct has induced the public to use a way Appeal from Supreme Court. Action by Julia K. Leonard against Morton Pennypacker and others. From judgment for plaintiff, defendants appeal. Affirmed. Thomas P. Fay, of Long Branch, for ap in the belief that it is a street or public way pellants. Wilbur A. Heisley, of Newark, for * * which all have a right to use, and where they suppose they will be safe. The liability in such a case should be coextensive with the inducement or implied invitation." This rule of the Massachusetts courts, which accords with the general doctrine laid down by this court, is illustrated by cases in other jurisdictions. 37 Am. Dig. Col. 392; Dec. Dig. & Suppl'ts, "Negligence," Key-Number 37. [3] The distinction between this doctrine and dedication is both clear and fundamental; dedication being the permanent devotion of private property to a use that concerns the public in its municipal character, whereas, the doctrine sub judice is a rule of negligence applicable to the owner of property only as long as he holds it out as intended for use by the public in their capacity as individuals. Upon the question whether the acts of the defendant in the present case were evidence of dedication, we express no opinion; but, upon the question whether the defendant by its conduct invited the plaintiff as one of the general public and within the meaning of the doctrine we are discussing to use the way in the belief that it was a street, the evidence presented a question for the jury under proper instructions, and it was error, therefore, to direct a verdict. To the case thus presented the rule of Dodd v. Central R. R. Co., 80 N. J. Law, 56, 76 Atl. 544, has no application. Under the doctrine of implied invitation, the negligence of the defendant, as also that of the plaintiff, were clearly for the jury. The judgment, therefore, is reversed, and a venire de novo awarded. appellee. MINTURN, J. The declaration in this case alleged a contract between plaintiff and defendants, the latter being owners and publishers of the Asbury Park Journal, the legal effect of which was that, in consideration of the payment to defendants of $750, they would supply their journal to the plaintiff, to the number of 150 copies, for one year. The breach alleged was the failure of the defendants to supply the papers. The defendants interposed the plea of general issue, and upon the trial it was disclosed that in August, 1910, the defendants offered a prize of an automobile to the baby receiving the highest number of votes in the annual baby parade at Asbury Park. They agreed that upon the payment of $5 the subscriber should receive a voting coupon for 500 votes, and an order for the Journal for one year. The plaintiff's husband obtained for her 150 annual subscriptions for the Journals, and paid $750 for the same to the bank at Asbury Park, which represented the defendants in the transaction, receiving in return this receipt: "When officially stamped paid at either the Asbury Park and Ocean Grove Bank or the Seacoast National Bank, this is a receipt for one year's subscription to the Asbury Park Journal, to be mailed daily for one year from Name, Buena Vista Hotel; Address, Belmar, N. J." This was supplemented by an order as follows: "Please send the Journal daily from Name, Buena Vista Hotel; Address, Belmar, N. J. Paid for by J. K. Leonard." At the same time there was delivered to plaintiff, through her husband, 150 voting coupons for to GUMMERE, C. J., and SWAYZE and use in the baby contest, and which plaintiff's VOORHEES, JJ., dissenting. (85 N. J. L. 333) LEONARD v. PENNYPACKER et al. (Court of Errors and Appeals of New Jersey. Dec. 8, 1913.) (Syllabus by the Court.) GAMING (850*)-VALIDITY OF CONTRACT QUESTION OF FACT. Whether a contract in writing, which provided for the delivery of newspapers for a certain period, at a certain price, which incidentally gave to the subscriber the right to vote for the most popular baby in an annual baby parade, was in fact a bona fide contract of subscription, for the newspaper, or was void as a gaming contract, presented a question of fact. Held, therefore that a nonsuit under such circumstances was properly refused. [Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 103-107; Dec. Dig. § 50.*] husband voted in favor of his child, who proved not to be the successful candidate. These facts were not substantially controverted, and the trial court left it to the jury to determine whether the contract for the delivery of the Journal was a bona fide subscription for the delivery of the newspaper, or, as the defendants contended, was an effort to evade what, in substance, was a gambling contract, and therefore void under the gaming act. There was testimony in the case, introduced in behalf of defendants, tending to show that what the plaintiff at heart desired in the transaction was the automobile, and not the newspapers, but the jury found in her favor, from which we must conclude that the contract sued upon was, as plaintiff alleges, the meritorious factor in the agreement, and that the prize involved in the baby contest was but an incident to the main contract. (82 N. J. Eq. 502) HOPPING et al. v. GREY et al. (Court of Chancery of New Jersey. Nov. 24, 1913.) 1. WILLS (§_866*) - CONSTRUCTION-ESTATE his estate to his daughter L. for life, the inTestator gave the income of one third of come of another third to his son F. for life, and the remaining third he devised absolutely to his daughter E. on her attaining the age of ing directed to lease or sell the property in the 24; the executors, also named as trustees, bemeantime as might be necessary and pay the income to the beneficiaries quarterly. Held that, testator not having devised the remainder of to such third did not pass to the executors or the estate devised to F. for life, the legal title trustees, but instead descended to testator's heirs at law, subject to be divested by the exercise of the power by the trustees. The defendants insist that a nonsuit should have been directed upon the ground that the contract was a lottery, and that the plaintiff is in pari delicto, and is particeps criminis, and cites as authority the cases State v. Shorts, 32 N. J. Law, 398, 90 Am. Dec. 668, and Wooden v. Shotwell, 23 N. J. Law, 465. We think these cases are clearly distinguishable from the case at bar. The case in Zabriskie above cited presented the question whether a drawing from a common pool of numbers representing lots of unequal value, but for which all the subscribers had paid equal sums, was within the terms of the lottery act, and Chief Justice Green in the Supreme Court quite reasonably concluded that it was essentially a lottery. In the case in Vroom gifts were distributed among the audience, at a traveling show. The exhibitor called at will the numbers to which he desired to assign prizes, and the fortunate possessors of the numbers were awarded prizes, if the exhibitor in other respects ap-after his life estate in an undivided third, the proved of them. These cases present apt illustrations of veritable games of chance, which incur the condemnation of our act against lotteries. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2200-2203; Dec. Dig. § 866.*] 2. EXECUTION (§ 45*)—MERGER-EFFECT. Where, under testator's will, his son took the right to receive the income of one-third of the estate during his life, also immediate legal title to an undivided one-ninth of the estate because of testator's failure to dispose of the remainder son's equitable life estate to the extent of onethird thereof merged in the remainder to the extent of one-ninth thereof immediately on testator's death, and hence such ninth was subject to execution by the son's creditors. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 141, 142; Dec. Dig. § 45.*] 3. TRUSTS (§ 138*) - TRUSTEES - TITLE PROPERTY-ADVERSE POSSESSION. TO A trustee may not assert a legal title by adverse possession against the cestui que trust; the trustee's title being that of the cestui que trust. [Ed. Note.-For other cases, see Trusts, Cent. The case of Dion v. St. John Baptist Soc., 82 Me. 319, 19 Atl. 825, exhibits features more akin to the case at bar than any to which we are referred; and the remarks of Peters, C. J., descriptive of the scheme there involved are equally applicable to the scheme presented by this case, and relieve it of those culpable characteristics which it is the pol-Dig. § 181; Dec. Dig. § 138.*1 icy of the law to suppress. But we are not obliged to differentiate this case from those adjudications where the manifest intent was Where devisees held property as tenants in to gamble in the interest of the parties to common, one of them could not claim adversely the illegal contract. The case was quite share of one of such cotenants purchased at an against one who claimed an interest in the properly left to the jury to determine whether execution sale, under the rule that one cotenthe contract for the delivery of the news-ant, in the absence of ouster, cannot assert tipapers was the essential consideration, and the superinducing cause of the contract, and they found that it was. The fact that plaintiff possessed also, under the same contract, a right to vote for a third party in a contest must, under the jury's finding, be assumed to be but an incidental and an extraneous factor in the case, and cannot be held to excuse the defendants for nonperformance of a specific agreement to deliver goods in futuro. We think that the trial court properly charged the jury upon the nature of the contract, under the provisions of the sales act, as a contract for the delivery of goods, not then in existence to be delivered. 4 C. S. p. 4648. We think the remaining objections urged by the defendants present questions of fact, which the jury doubtless considered in reaching their verdict. The judgment will be affirmed. 4. TENANCY IN COMMON (§ 15*)-ADVERSE POSSESSION. tle by adverse possession against another. Common, Cent. Dig. 88 42-52; Dec. Dig. § [Ed. Note. For other cases, see Tenancy in 15.*] Suit by Edith R. Hopping and others On exagainst George R. Grey and others. ceptions to master's report. Overruled. Charles D. Thompson, of Jersey City, and Edward Q. Keasbey, of Newark, for exceptants. Cecil H. MacMahon, of Newark, opposed. HOWELL, V. C. This suit is brought for the partition of lands of which George D. Randall died seised. The master to whom the cause was referred was directed to report upon the right, title, and interest of Frederick L. Randall, a son of the testator, and of William McMurtry and George M. Keasbey, who claim to have succeeded to the interest of the said Frederick in the real estate sought to be partitioned. The question |