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that by them, or by reason of them, the in defendant bargained for and agreed to purdorser intended to enter into a contract of chase from Phineas M. French (plaintiffs' suretyship. The certificate is a true statement testator), in his lifetime, a certain claim of of the attitude of the makers of the note to the said Phineas M. French against the Plainwards the payees, and, as to the loss of the field Poultry Farm Company, amounting to right to file a lien claim, the note was for a the sum of $845.11, with interest thereon bill of goods that had already been furnished from the 23d day of September 1899, and to to the makers, and was owed for by them. pay to the said Phineas M, French the No portion of it was due by the indorser. No amount of the said claim, on the consideraconsideration moved to her.

tion that he, the said Phineas M. French, The plaintiff being a married woman, no would put the claim in judgment, and make contract of suretyship would be binding upon an assignment of the said judgment, when her unless it appeared that she obtained some obtained, to him, the said defendant; and the thing of value for her own use or for the said Phineas M. French, at the special inuse, benefit, or advantage of her separate es stance and request of the said defendant, tate. Gen. St. p. 2017, § 26. While the judge then and there agreed to sell to the said debelow found as fact that some of the items fendant the said claim for the amount of the of the bill went into the indorser's building, said claim, and to put the said claim in judgyet she nowhere admitted this fact, and in ment, and to make an assignment of the said truth disputed it, so that the finding of this judgment, when obtained, to him, the said fact could not be evidence to prove that be defendant.” It is expressly alleged in the cause of it she agreed to become surety on the declaration that the entire agreement sued note.

upon was by parol, and not in writing. The judge also certifies that on the trial the Argued November term, 1902, before GUMplaintiffs never had any conversations with MERE, C. J., and VAN SYCKEL, FORT, the indorser in regard to signing the note and and PITNEY, JJ. the certificate. There is not sufficient evidence to prove that the indorser entered into

W. S. Angleman, for plaintiffs. Craig A.

Marsh, for defendant. any contract of suretyship.

The plaintiffs having contended that some of the items of the bill for which the note GUMMERE, C. J. The contract sued upon was given went into a house of the defend is for the purchase and sale of a chose in ant's, for which a lien could be bad, and that action, a debt due from the Plainfield Poulthereby a special consideration arose to her, try Farm Company to the plaintiffs' testashe should have been allowed to cross-exam tor; and the ground upon which the demurrer ine the plaintiff as a party as to the entries in is rested is that such an agreement is invalid bis book of original entry without any sub under the sixth section of the statute of pæna duces tecum for the purpose. This was frauds (2 Gen. St. p. 1603), which declares denied to the defendant. In this re was

that a contract for the sale of goods, wares, also error.

and merchandise for the price of $30 and upThe judgment below will be reversed, with wards shall be void unless in writing. The costs.

question whether an agreement to assign a debt due to the assignor, whether it be a

simple contract debt or a debt of record, is (69 N. J. L. 6)

a contract for the sale of goods, wares, and FRENCH et al. v. SCHOONMAKER.

merchandise, within the meaning of the statSupreme Court of New Jersey. Feb. 24, ute, was set at rest in this state by the deci. 1903.)

sion of the Court of Errors and Appeals in STATUTE OF FRAUDS-VERBAL CONTRACT FOR the case of Greenwood v. Law, 55 N. J. Law, SALE OF DEBT.

168, 26 Atl. 134, 19 L. R. A. 688. In that 1. A verbal contract, whereby defendant

case an agreement to sell and assign a bond agreed to purchase for $845 a claim, held by plaintiff's testator, against a third party, on

and mortgage was held to be such a contract, condition that testator would reduce the claim and the ground of that decision is thus stated to a judgment, to be assigned by him to de in the opinion: “The words 'goods, wares, fendant, is within the sixth section of the stat

and merchandise,' in the sixth section of the ute of frauds (2 Gen. St. p. 1603), which declares that a contract for the sale of goods,

statute, are equivalent to the term 'persona' wares, and merchandise for the price of $30 property,' and are intended to include what and upwards shall be void unless in writing. ever is not embraced by the words 'lands Action by Sarah J. French, executrix, and

tenements, and hereditaments' in the preced. Theodore F. French and another, executors,

ing section." The fact that, by the terms of against William H. Schoonmaker. On demur.

the agreement this chose in action, which rer to declaration. Judgment for demurrant.

was a simple contract debt when the agree

ment was made, was to be transformed into This action is brought to recover damages

a debt of record before being assigned, does. for the breach of a contract, which is thus

not change the transaction from a sale to a set out in the plaintiffs' declaration: “The

contract for the furnishing of work, labor,

and materials by plaintiffs' testator to the 91. See Frauds, Statute of, vol. 23, Cent. Dig. $ 144.

defendant. The thing contracted for the 54 A.-15

debt due from the Plainfield Poultry Farm Young & Arrowsmith, for plaintiff. VreCompany to plaintiffs' testator—was in exist denburgh, Wall & Van Winkle, for defendence when the contract was made. Assum ants. ing that this debt was "materials," and that the putting of it into judgment by the de PER CURIAM. This was an action of ceased was "work and labor" done on it by tort, and resulted in a verdict for the plainhim, this work and labor was done by him tiff. Defendants were building contractors, upon his own property, for his own ben engaged in constructing a building in Jersey efit, in order to make it salable. It did not City. The front of the building stood on transform the debt into a different entity. the building line of the street. A fence inIt merely made an alteration in its form. closed a part of the sidewalk about six feet The thing to be assigned remained after judg wide adjoining the building; thence the ment what it was before, viz., a debt due sidewalk extended about nine feet to the from the poultry company to the deceased. curb. Within the fence, leading toward the The mere alteration of the form in which building, was a derrick, which was fastened the debt existed did not operate to make the to the floor beams of an upper story by a contract an agreement for work, labor, and tie rope. From the head of the derrick a materials. Pawelski v. Hargreaves, 47 N. J. guy rope extended downward and outward Law, 334, 336, 54 Am. Rep. 162. And the to the street, being secured to a barrel or very wording of the contract shows that the barrels filled with sand that stood in the parties to it understood and intended that it roadway near the curb. Plaintiff was a boy was for the purchase and sale of a chose in seven years of age, and at the time of his action, and not one for work and labor to be injury was seated with a companion upon a done and performed and materials to be fur- pile of lumber at or near the edge of the nished by the plaintiffs' testator for the de sidewalk, eating candy. He was within two fendant. By that contract the defendant, on or three feet of the guy rope.

On October his part, “bargained for and agreed to pur 25, 1901, about 5:15 p. m., after the defendchase from the said Phineas M. French a ants' workmen had left the premises, a certain claim of the said Phineas M. French crowd of boys, variously estimated at from against the Plainfield Poultry Farm Com 10 to 20 in number, came there, and began pany," and the said Phineas M. French, on hanging on the guy rope and swinging the his part, “at the special instance and request derrick. They continued to do so until, eiof the said defendant, agreed to sell to the ther because of their weight or because of said defendant the said claim."

the cutting of the head rope by rubbing The contract sued upon being within the against a floor beam, the head rope parted, prohibition of the statute, the demurrant is the derrick swung over into the street, broke entitled to judgment.

down the fence, and struck the plaintiff, knocking him senseless, and fracturing his

nose. (69 N. J. L. 235)

We think there was no evidence entitling CONWAY V. VEZZETTI et al.

the jury to say that the defendants had been

wanting in due care in respect to making (Supreme Court of New Jersey. Feb. 24,

the derrick secure. We have not considered 1903.)

the question whether the defendants owed NEGLIGENCE-FAILURE TO SECURE DERRICK

any duty of care to the plaintiff under the -INJURY TO BOY. 1. A derrick, fastened by a head rope to the

circumstances, or whether, bad negligence floor beams of the upper story of a building on their part appeared, it could have been which defendants were constructing, stood deemed the proximate cause of the accident. within a fence inclosing part of the sidewalk The rule to show cause will be made abadjoining the building. From the head of the

solute. derrick a guy rope extended downward, and was secured to a barrel filled with sand standing in the roadway near the curb. While plaintiff, a boy seven years old, was seated at

(69 N. J. L. 131) or near the edge of the sidewalk, within two

COLE V. ATLANTIC CITY et al. or three feet of the guy rope, a crowd of boys came to the premises after the workmeu had

(Supreme Court of New Jersey. Feb. 24, left, and hung on the guy rope, swinging the

1903.) derrick. Either because of their weight or because of the cutting of the head rope by rub

CERTIORARI BY TAXPAYER-EMPLOYMENT BY

CITY. bing against a beam, it broke, and the derrick

1. Under the ordinances of Atlantic City, apswung over into the street, knocking down the fence, and injuring plaintiff. Held, that no

proved May 31, 1902, and July 15, 1902, the negligence on defendants' part was shown.

compensation of a couuselor employed to as

sist the city solicitor in pending or prospective Action by Walter Conway, an infant, who

litigation is to be paid by the city solicitor out

of his salary, and consequently å taxpayer is sues. etc., against Bernard Vezzetti and

not entitled to question by certiorari the validCharles Vezzetti. Verdict for plaintiff. On ity of a resolution of the council employing a rule to show cause. Rule made absolute.

counselor for that purpose. Argued November term, 1902, before GUM

(Syllabus by the Court.) MERE, C. J., and VAN SYCKEL. FORT, Certiorari by the state, on the prosecution and PITNEY, JJ.

of Clarence L. Cole, against Atlantic City

and Godfrey & Godfrey to review resolution pality. Afterwards he discovered that all necof the common council. Dismissed.

essary rights had not been acquiredo Feld. Argued November term, 1902, before

that prima facie he was entitled to mandamus

directing the municipality to acquire the omitHENDRICKSON and DIXON, JJ.

ted right. George A. Bourgeois, for prosecutor. D.

(Syllabus by the Court.) J. Pancoast, for defendants.

Application by the state, on the relation

of Natham Barnert, for writ of mandamus DIXON, J. The prosecutor, as a resident to the board of aldermen of the city of Paterand taxpayer in Atlantic City, seeks to set son and another. Writ awarded. aside a resolution of the city council passed Argued November term, 1902, before HENNovember 24, 1902, providing for the em DRICKSON and DIXON, JJ. ployment of the law firm of Godfrey & God

George S. Hilton, for relator. Michael frey to assist in certain litigation, pending

Dunn, for the city. Corbin & Corbin, for or prospective, in which the city is concern

the railroad company. ed.

On examining the situation, we think the prosecutor bas no such interest in the mat

DIXON, J. By an ordinance approved ter as would justify our interference at his

March 5, 1894, the authorities of Paterson instance. Under the act for the government

laid out Godwin street from Grabam avenue of cities, approved April 3, 1902 (P. L. p.

to East Eighteenth street, and directed that 284) adopted by Atlantic City May 6, 1902,

it should be opened as thus established. one of the municipal officers is a city solicitor

This street crossed the railroad of the New (section 31), and the council has power (sec York, Susquehanna & Western Railroad Comtion 14, par. 36) to prescribe by ordinance pany. Iu pursuance of the ordinance the his duties and compensation. In the exer

board of street openings of the city reported cise of this power, the council, by ordinance

awards for damages and assessments for approved May 31, 1902, ordained that the sal

benefits, with respect to all property affected ary of the city solicitor should be $4,000 per

except that of the railroad company. Among annum, and that, if it should be necessary

the property thus affected was land of the to secure the services of a counselor at law

relator, and upon an adjustment of his in the conduct of litigation wherein the city

awards and assessments he paid to the city might be engaged, his services should be a balance of $868, besides interest. Subpaid for by the city solicitor out of his sal

sequently, under a city ordinance, the street ary. After the adoption of this ordinance, was graded, curbed, and guttered, and the Mr. Wootton was appointed city solicitor.

assessment therefor on the relator's land Evidently, in this condition of the munici was paid by him. He then discovered that, pal laws, Messrs. Godfrey & Godfrey must

as no award had been made to the railroad look to the city solicitor for their compensa

company, the street had not lawfully been tion, under the resolution of November 14, opened across its property, and he soon 1902. The city treasury is not to be bur afterwards applied to the board of aldermen dened therefor.

to take the necessary steps to open the street In reaching this conclusion we have not

across the railroad. An ordinance for this overlooked the fact that by ordinance ap

purpose, presented to the board in August, proved July 15, 1902, fixing the salaries of

1900, was defeated. various city officers from July 8, 1902, the

These facts, we think, show prima facie a salary of the city solicitor is declared to be clear right in the relator to have the street $4,000 per annum, and no reference is made opened to the extent indicated by the orditherein to the requirement that he should

nance of March 5, 1894. So much seems necpay for legal assistance. We see no incon

essary to give him the benefit for which sistency in these ordinances, and regard the his land and money were taken. To enforce substance of the earlier ordinance as being

this right, he now asks for a writ of manstill in force.

damus. The objections urged against the The writ should be dismissed for want allowance of such a writ come from the of interest in the prosecutor, but without railroad company, and are: First, that the costs.

municipal proceedings for the opening of the

street are, as against the company, invalid; (69 N. J. L. 122)

and, second, that the question whether new

proceedings to open the street across the BARNERT v. BOARD OF ALDERMEN OF

railroad should be taken is one addressed to CITY OF PATERSON et al.

the discretion of the board of aldermen, and (Supreme Court of New Jersey. Feb. 24, hence the board cannot, in deciding it, be 1903.)

controlled by mandamus. MANDAMUS-OPENING STREET-ASSESSMENT.

The first objection is evidently not con1. By virtue of a municipal ordinance for clusive, for, if true, it can be obviated by new opening a street, the relator's land was taken, proceedings. and the residue of his land was assessed for

The second objection depends upon the benefits, and he paid the assessment under the belief that all rights necessary for opening the

truth of the first, and, if it be so supported, entire street had been acquired by the munici it is certainly formidable, but perhaps, un.

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der the peculiar circumstances of the case, resented to the plaintiffs that he was worth not fatal. Whether it should prevail is, we above the sum of $4,000 in real estate in the think, a matter deserving to be put in such state of New Jersey after all his debts and form as will permit of its decision in the liabilities were paid; that the plaintiffs, relycourt of last resort.

ing upon this representation of the defendant, To that end we award an alternative man assented to him as a surety upon the bond, damus.

and accepted a bond with the defendant as

a surety thereon; that in truth and in fact (69 N. J. L. 89)

the defendant was wholly insolvent and unNORTHWESTERN MUT. LIFE INS. CO.

able to pay his debts, and was not worth the

sum of $4,000, in real estate in the state of et al. v. BREAUTIGAM.

New Jersey, above his debts and liabilities; (Supreme Court of New Jersey. Feb. 24,

that his debts and liabilities exceeded in 1903.)

amount the value of any real estate that he DECEIT-DECLARATION.

owned, that any real estate then owned by 1. In an action for deceit it is proper to aver him was heavily incumbered by mortgages in the declaration the circumstances under

and taxes, and that there was no equity which the fraudulent representations made, and the manner in which the plaintiff

therein; and that the defendant knew that was prejudiced by relying thereon, so that it he was insolvent and unable to pay his debts, may appear judicially to the court that the

and that he was not worth in real estate in fraud and the damage sustained to each other

the state of New Jersey the sum of $4,000 the relation of cause and effect, (Syllabus by the Court.)

or any other sum above his debts and lia

bilities. The declaration then avers that aftAction by the Northwestern Mutual Life

erwards a final decree was made in the Court Insurance Company and others against Fred

of Chancery in the said cause between Stout erick C. Breautigam. Demurrer and declara

and others, complainants, and the plaintif : tion overruled.

as defendants, wherein it was decreed that Argued November term, 1902, before GUM

there was due upon the promissory note in MERE, C. J., and VAN SYCKEL, FORT, question the sum of $2,000, with interest, and and PITNEY, JJ.

also certain sums for costs; that the plainFrank E. Bradner, for plaintiffs. Edward tiffs have been unable to collect the amount H. Murphy, for defendant.

due upon that decree from the said Stout and

others, and that they, the said Stout and othPITNEY, J. In an action of tort, the dec ers, are wholly insolvent; that the plaintiffs, laration recites that one Stout and others had upon notice to the defendant, have applied applied to the Chancellor of this state for a to the Chancellor for relief against the de. writ of injunction to restrain the plaintiffs fendant as surety upon the bond, and that from prosecuting an action at law to recover the Chancellor has granted leave to the plainthe amount due upon a certain promissory tiffs to prosecute an action at law against the note made by said Stout and others and held defendant as a surety upon the bond. The by the plaintiffs; that said Stout and others concluding averment of the declaration is consented that, if an injunction were grant that, by reason of the premises, the plaintiffs ed, they would execute and deliver to the have wholly lost the amount due upon the plaintiff's a bond, with good sureties, condi promissory note, and have also lost the costs tioned that they should pay to the plaintiffs sustained by them as aforesaid. . any amount of money that might thereafter To this declaration a general demurrer is be found by the Court of Chancery to be due interposed, on the theory that, if the declarato the plaintiffs upon said promissory note, tion sets forth a cause of action, it is one that with the costs of the action at law and of the is founded upon contract only, and not upon suit in chancery; and that the plaintiffs tort. With this contention we do not agree. agreed to accept such bond, and consented to The declaration sufficiently shows that the the grant of injunction, and thereupon the plaintiffs consented to an injunction restrainsaid Stout and others obtained from the ing their action at law, in consideration of a Chancellor an order for an injunction, re bond executed by the defendant and others, straining the plaintiffs from prosecuting the conditioned that the obligors should pay the said action at law upon the said promissory amount ascertained by the Court of Channote, upon condition that the complainants cery to be due upon the claim that was the should first execute and deliver to the plain- subject matter of their action at law; 'that tiff's a bond in the penal sum of $4,000, con the plaintiffs accepted this bond on the taining a condition in the form above men strength of the defendant's representation tioned, to be executed by two sureties whose that he was worth above $4,000 in New Jersufficiency should be approved by one of the sey real estate after all his debts and lia. special masters of the Court of Chancery, bilities were paid; that this representation and which bond should be first accepted by was false, and known by the defendant to be the plaintiffs; and the declaration avers that so, and that in fact the defendant was wholthe defendant, in order to induce the plain-ly insolvent. Fraudulent misrepresentations, tiffs to accept a bond executed by him as one thus made and thus relied upon, furnish of the sureties, falsely and fraudulently rep ground for an action of deceit, provided it

appear that the plaintiff was damnified there It won't do, because of a general relation of by, and not otherwise.

intimacy between these parties, to say that In Byard v. Holmes, 34 N. J. Law, 296, it therefore upon one or more of these special was held that in an action of this character occasions they have been guilty of adultery. the plaintiff must show with reasonable cer If you have a general impression in your tainty in his declaration, not only what the mind that they were gu or if you have fraud was by which he has been injured, but an idea that the public in Washington think also its connection with the alleged damage, that they are guilty, because they are too so that it may appear judicially to the court intimate, that must not have anything to do that the fraud and the damage sustained to with your verdict, excepting so far as it each other the relation of cause and effect, goes to corroborate the particular proven or at least that the one might have resulted facts and circumstances clustering about this directly from the other.

particular occasion which has been selected In the present declaration the proceeding by the prosecutor for the time upon which at law and in chancery that led up to the he relies for the conviction.” The last clause giving of the bond, and the subsequent pro of this response to the request of the deceedings that fixed the liability the eon, and fendants' counsel to harge is clearly er. the fact of the insolvency of the obligors, are roneous. We know of no condition that can set forth for the purpose of showing the arise in the progress of a trial when it is causative relation borne by the defendant's proper for the court to state to the jury that fraudulent representations to the damage that they may consider facts not proven in the the plaintiffs have sustained.

case in reaching a verdict upon the question The plaintiffs are entitled to judgment on of the guilt of the defendant upon trial. the demurrer.

If the judge had charged the request as asked, by simply saying, “I charge that," there

would have been no error, and that was all (69 N. J. L. 63) STATE v. WHITEHEAD et al.

that was required or called for by the re

quest. It is impossible to believe that this (Supreme Court of New Jersey. Feb. 24,

statement by the court did not give the jury 1903.)

the impression that they had a right to conCRIMINAL LAW-INSTRUCTIONS.

sider the fact that the people about Wash1. In the trial of a criminal case, it is error ington had an impression that the defendfor the trial judge to say to the jury that they

ants were guilty of the offense charged, and may consider the fact that the public, in a cer

that under certain conditions they might contain locality, think the defendants guilty, as corroborative of the particular facts proven in

sider that fact as evidential against the dethe cause.

fendants in reaching their conclusion. We (Syllabus by the Court.)

know of no authority for such a statement, Error to court of quarter sessions, Middle

and judgment is reversed, and a new trial sex county.

granted. Vernon Whitehead and Georgianna Van Doren were convicted of crime, and bring

(69 N. J. L. 27) error. Reversed.

REED et al. v. HACKNEY et al.
Argued November term, 1902, before the
CHIEF JUSTICE, and VAN SYCKEL,

(Supreme Court of New Jersey. Feb. 2A,

1903.) FORT, and PITNEY, JJ.

ADVERSE POSSESSION-DOWER INTEREST. George S. Silzer, for plaintiff in error. 1. When a widow after the death of her husJohn S. Voorhees, for the State.

band remains in possession of lands of which he died seised, or to which she has not released

her right of dower, it is in law presumed to be FORT, J. The defendants in this case

her possession, in right of her dower, until were convicted of adultery at the Middlesex dower is assigned.

2. If the husband in his lifetime has couveyquarter sessions. There are several assignments of error re

ed the land by a deed, in which his wife did

not join, and she, after the first husband's lating to the admission of testimony and to death, marries the grantee, who lives with her the charge of the court. But one of these upon the premises, the possession is the posexceptions need be considered, as it is suffi

session of the wife until her dower is assigned,

and not the possession of the husband. cient to require a reversal.

3. Such possession by the grantee cannot be The defendants' counsel requested the court set up, by those claiming under him, as a posto charge the jury as follows: “I ask your

session which will draw to it the possession

of an adjoining tract, left in the possession of honor to direct the jury that they must only

the widow of the first husband (and over which consider the case upon the evidence and in her right of dower extends), in order to support the language in which your honor charged a a title to such adjoining tract by adverse posjury recently in another case;

that

session. it must not be upon suspicion and guess

(Syllabus by the Court.) work.” On this request, the judge charged Action by Leonard Reed and others against the Jury as follows: “There is no question John W. Hackney and others. Verdict for about that. The jury understand that we plaintiff. Rule to show cause discharged. are here to try the case upon the evidence. Argued November term, 1902, before the

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