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(69 N. J. L 44) MAYOR, ETC., OF BOROUGH OF CARLSTADT v. CITY TRUST & SURETY

CO. OF PHILADELPHIA. (Supreme Court of New Jersey. Feb. 24,

1903.) STREET RAILROADS-CONSTRUCTION BOND

ACTION FOR BREACH. 1. An ordinance of the borough provided that a traction company, in exercising the granted right to lay its rails in the public streets, should complete the work within a specified time. Thereupou a bond was given by the traction company, with the defendant as surety, conditioned to perform this obligation.

In a suit upon the bond, the condition being regarded as reasonable, the failure of the traction company to comply with it constituted a breach of the bond, and will support a recovery. (Syllabus by the Court.)

Action by the mayor and council of the borough of Carlstadt against the City Trust & Surety Company of Philadelphia. Demurrer to narr. Overruled.

Argued February terin, 1903, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

Shafer & Conkling, for plaintiff. Copeland, Luce & Kipp, for defendant.

involved some change in the grade and paring of the connecting streets.

The ground is taken by the defendant tbat, in conferring upon the borough the power to give or withhold the consent necessary to the grant of a franchise of this nature, the Legislature did not intend to invest it with the right to sell the privilege to the company, or to exact money for the improvement of its streets; that its exercise was intended to be governed exclusively with reference to the advantage or disadvantage of such a railway to the public, and cannot be made the subject of a bargain. Without assenting to this proposition, it is sufficient to say that the decision of the case turns upon a much narrower question, and one in regard to which we think no doubt can be well entertained. One of the requirements of the ordinance, and one of the express conditions of the bond, on which breach is assigned in the declaration, is that the traction company agreed to construct and complete its tracks within a specified time, and that it failed so to do within the prescribed time. It is the right and the duty of the governing body of such a municipal corporation to provide that companies, in exercising their right to lay rails upon the public streets, shall perform the work with such reasonable dispatch that travel shall not thereby be impeded or rendered less safe for an unreasonable length of time. This provision of the ordinance was a reasonable exercise of the corporate power, and the failure of the traction company to comply with it constituted a breach of the bond.

One sufficient breach being assigned, the demurrer must be overruled, with costs. It is not necessary to express an opinion with respect to the other breaches assigned.

VAN SYCKEL, J. The plaintiff is a municipal corporation of this state, duly organized as such, with power to grant or refuse to an applying company the right to construct and operate a street railway, by means of electricity as a motive power, through the public streets of its territory, and also the general power to regulate the use of its streets. On the 13th of August, 1896, the Union Traction Company applied for such grant, and, by an ordinance then passed, was given the right applied for. In consideration of the grant, it was required by said ordinance, and the said traction company undertook, to pay the plaintiff the sum of $250 in .case it failed to construct and complete its tracks within the borough in a specified time, and also to pay for macadamizing Division avenue between Monroe and Hackensack streets, for one-half the cost of grading and macadamizing a part of Hoboken avenue be. tween Monroe and Hackensack streets, and the entire cost of regrading, macadamizing, curbing, guttering, and flagging Hackensack street in case the mayor and council deemed it necessary to change the grade of that street. The traction company entered into a bond in the penal sum of $1,000, with the defendant company as surety, to comply with these conditions. Suit is brought upon this bond, and breaches are assigned. The defendant has demurred to the declaration.

Hoboken street is not one of the streets designated for the laying of tracks, but Hackensack street is; and the ordinance, which is made part of the declaration, shows that changes of grade were to be made on that street, and it appears that such y change was in fact made. Such change necessarily

(68 N. J. L. 627) WILSON y. BORDEN. (Court of Errors and Appeals of New Jersey.

March 2, 1903.) BUILDING CONTRACT-BREACH-DAMAGES

EVIDENCE. 1. When, under a building coutract, the contractor has been preveuted from completing his work by the fault of the owner, the legal measure of damages is generally, for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and, in respect to the work not done, such profits as he would have realized by doing it.

2. Evidence as to the cost of the entire work is necessary in order to ascertain what proportion of the whole work contracted for has been done.

3. The defendant will be entitled to show that the coutractor has not done his work in compliance with the contract, and to claim such rebate as will satisfy the loss to him by reason of such noncompliance.

4. The contract provided “that if the architect shall certify that the refusal, neglector failure of the contractor to comply with the

[ 1. See Damages, vol. 15, Cent. Dig. $$ 332, 333

contract is sufficient ground for such action, the ed every resource in our efforts to have him owner may terminate the employment of the

hurry the work. contractor." The architect occupied a judicial position as to the parties, and was bound to

“We await your instructions in the matter. act impartially upon his own judgment, aud to

"Yours truly, Cavere & Hastings." express in some appropriate language, in writ After receiving this letter the defendant, ing, his opinion that there was sufficient ground

on the 7th of September, 1901, caused the noto take the work out of the contractor's hands. 5. A private letter writteu by the architect to

tice referred to in the letter of the architects the owner, and not communicated to the con to be served on the plaintiff; having first tractor, will not justify a rescission by the changed its date to September 7, 1901. The owner.

said notice was as follows: (Syllabus by the Court.)

"Wayman Wilson, Esq.-Sir: In accordError to Circuit Court, Monmouth County. ance with the terms of section 13 of my conAction by Wayman Wilson against Matthew tract with you for work on the house formerC. D. Borden. Judgment for plaintiff, and ly owned by Max Bleiman of Oceanic, N. J., defendant brings error. Reversed.

I hereby give you notice that your failure to

proceed with the work compels me to avail John S. Applegate & Son, for plaintiff in

myself of my privilege under said contract to error. James S. Degnan, for defendant in

have the work finished by some other person. error.

Oceanic, 7th Sept. 1901.

"M. C. D. Borden." VAN SYCKEL, J. This is a suit on a An implication may be drawn from the letbuilding contract, by contractor against own ter of the architects that in their judgment er, to recover for work done under the con the owner had a right to rescind, but the tract, dated April 23, 1901. The plaintiff al contractor should not be deprived of his conleged that the owner unlawfully rescinded tract by implication when there is an exthe contract, and he was permitted by the press provision in the contract that the architrial court to recover the cost of the work he tect must certify that there is sufficient had done, and materials furnished.

ground for rescission. It is not necessary The first question in the case is whether the that the word "certify" shall be used, or that owner was justified in putting an end to the any formal language shall be employed by contract.

the architects, but they must express in some Section 13 of the contract provides "that if appropriate language, in writing, their opinthe architect shall certify that the refusal, ion that there is sufficient ground for the neglect or failure of the contractor to com owner to take the work out of the contractor's ply with the contract is sufficient ground for hands. There is an absence of such lansuch action, the owner may terminate the guage. The architects occupied a judicial employment of the contractor.” On the 27th position as to these parties. They had no of August, 1901, the architects sent to Bor- | right to favor either, but were under a duty den a letter, of which the following is a copy: to act impartially between them. Their state

"August 27, 1901. Dear Mr. Borden: Wement in the letter of August 27th that they have your favor of the 26th inst, in relation were willing to take any action which the to the progress of work on the Bleiman Cot owner might suggest, and that they would tage.

forward the notice to rescind, if the owner "We feel as you do about this matter, that so desired, does not show a correct judicial the present progress is absolutely unsatisfac- disposition; and from it the inference may tory, and that under existing conditions it is be drawn that the architects had not fully utterly impossible to prophesy the date of made up their minds whether they should completion. We have urged the contractor certify, but would be governed by the wish on every possible occasion and have instruct of the owner. That was not a compliance ed him in many ways that with an ordinary with the requirement to certify their own contractor would be quite unnecessary, but judgment as arbiters between the parties. he exhibits so little capacity for carrying on Besides the infirmity in this respect, the the work that we are quite discouraged about letter written by the architects to Borden, it, and we are therefore very willing to take the owner, even if in form a certificate, could any action in the matter wbich you may sug not justify the termination of the contract, gest.

because it was a private letter written to the “The present stage of the work is perhaps owner, and not served upon, nor its contents the most unsatisfactory of all, as the plaster communicated to, the contractor, whose rights ing work which is now being carried on pre under the contract were to be affected. All vents the progress of the woodwork on the the information the contractor had was that interior, and this of course cannot be avoided. the owner wished to rescind the contract.

"If you deem it advisable, we will forward The trial judge therefore properly instructto the contractor the formal notice to discon ed the jury. that the contract was not law. tinue work which you have already sent to fully rescinded by the owner. us for the purpose. We have no means of The jury was thereupon directed to find a inducing the contractor to put more energy verdict for the plaintiff for the sum of $3,into the work, nor can we supply his defi 266.79, with interest from September 11, ciency in this particular. We have exhaust- i 1901-the amount testified to by the plain

tiff as the cost of the work done and ma ted on behalf of the plaintiffs in error, that terials furnished by him. In this instruction it is presented by a member of the bar who to the jury an erroneous rule for computing has not as yet been licensed to practice as a the amount due to the plaintiff was adopted. counselor at law. This court will not receive In Kehoe v. Rutherford, 56 N. J. Law, 23, such a brief. The cause stands, therefore, as 27 Atl. 912, Mr. Justice Dixon formulated the if, notwithstanding the stipulation to submit correct rule as follows: "When the plaintiff it upon briefs under the rule, the plaintiff in has been prevented from completing his error had entirely failed to comply with that work by the fault of the owner, the legal stipulation. measure of damages is generally, for the The defendant in error is entitled to prowork done, such a proportion of the entire ceed as if no brief had been filed by his price as the fair cost of that work bears to adversary. the fair cost of the whole work; and, in respect to the work not done, such profits as he would have realized by doing it." If the

JEFFRAY V. TOWAR et al. plaintiff had completed one-quarter of the whole work contracted for, he would have (Court of Chancery of New Jersey. Feb. 13, been entitled to one-quarter of the contract

1903.) price; if he had completed one-half, to one TRUST FUND-PROFITS BY TRUSTEES. half of the contract price. To ascertain 1. T'he beneficiary of a trust fund is entitled what portion of the work the plaintiff had

to all profits made thereon by the trustee in

violation of his trust. done, it was necessary to ascertain what the cost of entire work would have been. The Memorandum on settlement of decree. plaintiff had proved the cost of the work For former opinion, see 53 Atl. 182. done, and the defendant offered to prove

Lindabury, Depue & Foulks, for complainwhat it would cost to finish the contract

ant. Hartshorne, Insley & Leake, for defendwork. This offer was erroneously overruled. ants. If the plaintiff bad done work which cost one-half of the cost of the entire work, he EMERY, V. C. Counsel have presented would have been entitled to one-half of the arguments and briefs upon the questions recontract price for that work. It is proper, surved, and, upon further consideration, I however, to observe, that the defendant reach the following conclusions upon these would have a right to set up and show that questions: the plaintiff bad not done his work in com 1. In determining the principal of the trust pliance with the contract, and to claim such fund or property in Towar's hands, the acrebate as would satisfy the loss by reason of counts submitted by Towar to Dwight, trusnoncompliance.

tee, in his lifetime, and accepted by Dwight The judgment below should be reversed, as the statement of the trustee account, must and a venire de novo awarded.

he taken as settling the amount of this principal for the purposes of this suit. As be. tween Dwight, the trustee, and Jeffray, the

whole of this amount due on the trustee ac. LEAVER V. KILMER et al.

count is plainly to be treated as part of the

trust fund, for the reasons stated in my opin(oupreme Court of New Jersey. Feb. 25, 1903.)

ion. It is, as there found, composed entirely

of trust property, which is traced, or of ad. APPEAL-BRIEFS.

ditional deposits to the credit of the trustee 1. A brief presented on appeal by one who has not been licensed to practice as a counselor

account made by the trustee to replace trust at law will not be received.

funds for which he was liable. As between

Dwight, trustee, and Towar, these statements Error to Circuit Court, Monmouth County.

of the trustee account, submitted and accepted, Action by John F. Leaver against Nelson H.

plainly fix the balances due. While Towar's Kilmer and others. Judgment for plaintiff,

liability to pay any portion of the account to and defendants bring error. Defendants'

Jeffray (Dwigbt's cestui que trust) depends brief excluded.

upon Jeffray's establishing that the whole acArgued November term, 1902,

before

count was a trust fund, and that Towar had GUMMERE, O. J., and VAN SYCKEL,

notice of this, the amount recoverable, if these FORT, and PITNEY, JJ.

points are established as I have found them Wesley B. Stout, for plaintiffs in error. S. to be, is the whole amount admitted to be A. Pattersou, for defendant in error.

due by the banker on the trustee account.

Jeff ray, as to the amount due, claims under PER CURIAM. On the call of the list at Dwight, and is entitled to recover all that the opening of the term, it was announced Dwight could recover on the face of the trusthat this cause would be submitted upon tec account, subject, however, only to such setbriefs. Pursuant to this announcement, off or defenses in favor of his own separate copies of the printed case and briefs were filed account as Dwight could lawfully impress with the sergeant at arms. It appears, how upon the trustee account; and the circumever, upon an inspection of the brief submit stances that the balance due ou the trustee

54 A.-52

account up to its last statement (January 1, of the trust estate in his hands, as shown 1898) is, to some extent, the result of a pre by his account to complainant, together with rious compounding of interest, cannot entitle interest thereon from the date of the last Towar now to readjust the entire trustee ac payment of interest, and deducting the paycount from the beginning, in order to eliminate ments of $5,000 principal. Any amounts this feature of the accounts. The supposed realized from the Connecticut lands are to equity upon which such claim for readjust be credited upon this balance, and also any ment is based is that compounding of in- payments made under this decree by defendterest was allowed on the trustee account be. ant Towar; and, if the latter payments be cause it was charged in the additional ac made, then, after the payment or satisfaccount, and it was intended that one should tion of the entire amount due from the trusoffset the other. The answer to this claim is tee's estate, defendant Towar may apply to twofold: (1) As between Jeffray, the ben have the decree against the Dwight estate eficiary, and Dwight, the balance on the trus- assigned to him, to the extent of his pay. tee account represents the trust fund, and the ments. profits thereon arising from the deposit of trust funds with the banker. As against the trustee, the beneficiary is clearly entitled to

(69 N. J. L. 109) the whole of any profit. This is a settled BOWMAN v. BOARD OF CHOSEN FREErole in regard to profits made by trustees, and HOLDERS OF ESSEX COUNTY. is made in order to penalize the use of trust

(Supreme Court of New Jersey. Feb. 24, funds; and the same principle should prevent

1903.) the remission, for the benefit of the banker,

COUNTY ROAD BOARDS-CONSTITUTIONAL of any portion of the profits or interest on

LAW. the trustee account which the banker bas 1. Upon the views announced in Road Comalready credited to the trustee, with notice

mission v. Haring, 26 Atl. 915, 55 N. J. Law,

327, the act of April 24, 1894 (Gen. St. p. that the fund is a trust fund. (2) Dwight is 2864), by which the functions of county road still liable on bis separate account for the boards were transferred to the boards of chosen compound interest included therein, and the freeholders, is valid, notwithstanding the fact readjustment would inure solely to the ben

that the functions of the road board in Essex

county differed from those permitted to road efit of the banker on the trustee accounts.

boards in other counties. The amount due upon the account, there (Syllabus by the Court.) fore, will be fixed according to the last state

Certiora ri by Samuel H. Bowman against ment as $19.926.63 due January 1, 1898. 2. Simple interest at 6 per cent. from that

the board of chosen freeholders of Essex

county to review an assessment for the wid. date is to be allowed. Complainant is seek

ening of Bloomfield avenue. Affirmed. ing decree for the payment of the balance

Argued November term, 1902, before due on the banker's account held in trust

HENDRICKSON and DIXON, JJ. for him, and his recovery is to be limited to the amount due on the account, as stated Robert H. McCarter, for prosecutor. Joand agreed on between the banker and his seph A. Munn, for defendant. trustee, with such interest thereon as is due for the retention of the money due him, not DIXON, J. The proceedings subjected to the interest due as between persons continu review by this certiorari were taken by the ing to deal as banker and customer, nor as board of chosen freeholders of Essex couninterest due from the trustee of an express ty in widening a public road, pursuant to the trust, liable for profits. The interest is to provisions of the local statutes establishing be settled as on the ordinary basis of an ac and controlling the Essex public road board. tion for money due.

The legality of the proceedings depends on 3. Defendant Towar is chargeable with the act of April 24, 1894 (Gen. St. p. 2864), the interest received upon the two Colorado passed to transfer the powers, duties, rights, Coal & Iron Company bonds, so far as re and authorities of all county public road ceived, and not already charged in his ac boards to the boards of chosen freeholders count, and must deliver these bonds to in the respective counties. As the functions complainant. If the amount received is not of the Essex county road board were differagreed upon, I will hear evidence, or refer ent from those permitted to road boards in to a master.

other counties, it is insisted by the prose4. Defendant Towar is also to deliver to cutor that an enactment to transfer those complainant the Wisconsin Central Railroad functions to another county board must necbond received in exchange for the Chippewa essarily be local and special, whether emFalls & Western Railway Company bond, braced in a statute general in form or not, and account for the interest received there and therefore must be prohibited by our Conon since October 22, 1895, the date of the stitution. An examination of this claim on last credit of interest. This may be settled principle in this court seems to be precluded without an accounting.

by the opinion of the Court of Errors in 5. As against defendant Dwight's adminis Road Commission v. Haring, 55 N. J. Law, trator, complainant is entitled to a decree 327, 26 Atl. 915, where Mr. Justice Van for the entire amount of the principal fund Syckel, speaking for that court, declared that

EDGMENT

the act of February 10, 1881 (Gen. St. p. quired, which shall be granted only on notice. 2862), which transferred the functions of Held, that the consent of abutters was only every county road board to a committee of

required to be once given and filed before the

municipal authorities mentioned in the first the board of chosen freeholders, rested on a section grant permission, and the act did not substantial basis of classification, and was require the filing of the same cousents as a not prohibited by the organic law. That

condition to the railroad's obtaining the addi

tional consent of the board of chosen freedeclaration must be equally applicable to

holders of the county under such proviso. an act transferring the same powers and du 6. Under a statute providing that before the ties from a committee of the board to the beginning or construction of any extension to whole board.

a street railway the corporation shall file in

the office of the Secretary of State a descripThe proceedings are affirmed, with costs. tion of the route of such exteusion, showing

the termini, with a map exhibiting the same,

with the courses and distances thereof, the (64 N. J. E. 588)

fact that the map of an extension marked a

distance running 1,462 feet more or less, while MEROER COUNTY TRACTION CO. V. the description filed omitted the words "more UNITED NEW JERSEY R. &

or less," was immaterial, since such words CANAL CO.

might be rejected as surplusage.

7. A decree in a proceeding by certiorari to (Court of Chancery of. New Jersey. April 16, deterinine the validity of av ordinance granting 1903.)

a street railway company the right to lay its

road on the highway within a township, deSTREET RAILROADS - ESTABLISHMENT - MU. termining that such ordinance was valid, did

NICIPAL CONSENT-CONSENT OF ABUTTING
OWNERS

not estop the contestant in a subsequent new - EXECUTION - SEAL - ACKNOWL

proceeding to contest the validity of the ordiSTATUTES REPEAL CONSTRUCTION-EXTENSIONS-MAPS DESCRIP

nance for reasons not advanced or considered TION-VARIANCE-JUDGMENTS-ESTOPPEL. in the prior suit.

1. P. L. 1896, p. 329, provides that no street Petition by the Mercer County Traction railroads shall be constructed except on consent

Company against the United New Jersey of the governing body of the municipality ou the written consent of one-half of the abutting

Railroad & Canal Company for the determiowuers filed with the clerk of such governing nation of a method by which the petitioner body. Held that, since the filing of the req

may have a crossing over defendant's railuisite consent by the property owners was a condition precedent to the passage of an ordi.

road. Petition denied. nance granting authority to construct a rail.

John H. Backes, for complainant. Alan H. road, it would be presumed, in the absence of a contrary, showing, in a subsequent proceed- Strong, for defendant. ing, that the township committee before authorizing such construction determined that the REED, V. C. This is a petition filed by consent of such owuers had been filed. 2. Under P. L. 1896, p. 329, declaring that

the Mercer County Traction Company for no ordinance for the construction of a street

the purpose of having this court fix a method railway shall be passed until consent in writ. by which its road shall cross the road of ing of abutting owners, executed and acknowl.

the Pennsylvania Railroad Company at edged as are deeds, entitled to be recorded, bas been filed with the clerk of the governing body

Yardville. The present road was organized of the municipality, consents filed, but not seal. as an extension of another road, also known ed, were insufficient to confer jurisdiction on a as the Mercer County Traction Company, township committee to authorize the construc- running from Allentown to Yardville. The tion of a road. 3. Where consents of abutting property own

present road starts from the terminus of the ers to the coustruction of a street railway were former road, and runs 1,462 feet northerly. sealed, an acknowledgment thereto that the The United New Jersey Railroad & Canal grantors signed and delivered the same as their voluntary act and deed was not objectionable

Company, lessors, and the Pennsylvania for failure to recite that the grantors sealed the

Railroad Company, lessees, of the road to be same, the sealing being implied from the ac crossed, challenge the power of this court knowledgment that the instrument was the

to act upon the petition. The objection to signer's deed. 4. P. L. 1894, p. 374, providing that uo street

the jurisdiction of the court is put upon the railway shall be constructed upon any street

ground that the conditions essential to equip or highway in a muuicipality, except on con the petitioners with a legal existence have sent of its governing body and ou consent of a

not been performed. certain proportion of the owners of abutting property on streets to be used, was superseded

The incorporation of the petitioners seems by P. L, 1896, p. 329, covering the same sub to have been under section 6 of the act of ject.

1893 (P. L. P. 306), which provides for the 5. P. L. 1896, p. 329, provides that no street railway shall be constructed in any city, town,

extension of an existing railway. The first township, village, or borough except on con

objection is that the railroad of which the sent of the governing body of such muuicipals petitioners pretend to be an extension, nameity, etc., and that such consent shall not be

iy, the road of the original Mercer County granted except on filing with the clerk of such governing body of the consent of a certain pro

Traction Company itself, had no legal existportion of abutting owners. Section 2 author ence. The evidence offered by the petitionizes the change of motive power, and is fol ers in respect to the organization of that lowed by a proviso that if any board, body, or

road is a certificate of incorporation dated public authority other thau the governing body of such municipality, etc., shall have control

January 19. 1899, recorded in the office of of the streets or highways over which the pro the clerk of Mercer county July 31, 1899, and posed road is to be constructed, the consent of such board 'or public authority shall also be re [ 7. See Judgment, vol. 30, Cent. Dig. $1263.

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