ing back and forth to New York every day. On the 15th of February, the day when the contract was to be performed, the complainant went to the office of his counsel in Newark, Mr. Harris, and Mr. Stiger himself happened to be or went to the office of Mr. Cross, a real estate agent in Newark. The complainant, however, early in the morning, at 9 o'clock, went with his deed already executed, as he says (it has not been produced-it matters not), to the office of Mr. Stiger, in East Orange, and left word there that the transaction would be completed at the office of Mr. Harris in Newark. I presume, though it was not testified to, that he had received notice from Mr. Harris that there were taxes in arrear on this property, because Mr. Harris says he had made a search and found taxes with interest on February 15, 1905, of $435.54, in arrear, and water rent of $104.50, which must be paid. At any rate I suppose the complainant may have heard of that, because he stopped at Mr. Stiger's office that morning and said the affair would be closed at Newark. Mr. McKirgan was not called as a witness, but it is fair to infer that Mr. McKirgan so understood, although there is no direct proof of it, because the defendant called up Mr. Stiger on the phone from Mr. Stiger's office in East Orange, learning where he was, I suppose, from Mr. Stiger's clerkcalled him up and said that his lawyer, Mr. McKirgan, could not get there this morning, and therefore he wanted an adjournment for two days. Now there is not the least doubt about that fact. It is not disputed. The defendant admits that he did call up Mr. Stiger, and he does not dispute the accuracy of Mr. Stiger's statement of what occurred, and, more than that, he adds that that afternoon he got a letter from his counsel saying that he could not attend that morning, but asked for the postponement for two days. So there is no kind of doubt at all that the postponement was at the request of the defendant. That little postponement arising out of the inability of his counsel to attend to the transfer of the title on the day named in the contract may have worked a considerable of injury to the defendant, but the complainant is not to blame for that. Then, besides all that, Mr. Harris swears that he was called up on the phone by the defendant shortly after Mr. Stiger was, and was asked by him to put the transaction off for two days, as I recollect the evidence-I don't want to be too sure about it-because Mr. McKirgan could not attend. I believe that is Mr. Harris' evidence. Then the complainant was there ready with the money, the money he had to pay. He was there ready to execute the mortgage. He had the deed all ready to execute, but that is a matter of no consequence. He was there, ready and willing to convey, but the defendant was not. And it is perfectly well settled that in a court of equity the mere tender of money in greenbacks, or gold, or what not, or having the

deed already executed and acknowledged in such manner as to stand the test of close scrutiny, is not important when the other side is not ready. Now the defendant was not ready that day. He did attend at Mr. Stiger's office, but he was not ready, and he phoned to Newark for a postponement, and, while he says he does not recollect having phoned to anybody but Mr. Stiger, I am quite sure Mr. Harris did not manufacture what he said in his testimony, and the gentleman over the phone talking to him said he was the defendant, and the defendant was in Stiger's office where the phone came from, and the charitable view of it is-the endeavor of the court always is to reconcile evidencethat he had forgotten that he had also called up Mr. Harris.

But

Now up to that point the complainant is entirely right in court in every way. He was ready to perform his contract, convey his land, and accept the conveyance of the other, and the fact that it was not done that morning is altogether the fault of the defendant, a very small fault, a matter of no consequence, a day or two under those circumstances, and the complainant was perfectly willing to accord him two days. And the evidence of the defendant is that it was put off until half past 4 o'clock in the evening at Mr. Stiger's office at East Orange. here is where the trouble comes in-the matter set up by the answer-and which is evidently the trouble in the whole case, so far as the court can take notice of. The defendant, when he entered into this contract, knew that there were two mortgages on his property to be conveyed, not only the mortgage of $2,500, which was acknowledged to be known, on record and provided for in this contract, but another mortgage of $2,000 put on it the July previous to a Mr. Hoyt, not recorded, and he was obliged to take care of that mortgage, and the holder of it was a friend of his, and he thought that he could get that friend to cancel that mortgage and take another on the property the complainant agreed to convey, subject to the $2,500 already on it -on the property of the complainant to be conveyed to the defendant. At any rate defendant expected to make an arrangement with the holder of that mortgage, and he went to see him or the holder of the mortgage came to see him, having heard about it, and he found the holder of the mortgage would not take such a mortgage, hence all these tears. That was the real reason why the trade did not go through. And the holder of that mortgage hastened down to Newark on the 16th, between the 15th and 17th, the very next day, and put it on record at half past 9 o'clock in the morning. Now, unless defendant could dispose of that mortgage, the contract could not be completed. Some arrangements must be made. And that situation was made known the next day, Wednesday, or some time, 17th, Friday, some time was made known to complainant, and the

affair flattened out. Now this failure was the fault of the defendant, altogether the fault of the defendant. He made a contract to convey land which was not really in his power to convey on those terms.

But the complainant immediately set about trying to remedy it; and on the 20th of February, three days after the 17th, he writes to the defendant a letter: "I would thank you to make an engagement [and keep it], so that we can close this matter up according to contract, if possible, and, if not, as nearly to it as you can. I am willing to do whatever I can in a reasonable way to help you out of the position you have placed yourself in, provided you show a willingness to do your part; otherwise I shall have to insist upon your carrying out the letter of the agreement. Please, therefore, arrange with Mr. Stiger for a meeting to-morrow [Tuesday] afternoon at the office of Mr. Harris in Newark, and, if you desire, have your attorney accompany you. Three o'clock will suit me. Mr. Stiger is to call me up at noon about it, und I will keep any appointment he makes." A very fair and proper letter for one business man to write to another. He says: "You have got yourself in a scrape about this mortgage. I will see what I can do toward helping you out. Meet me. Let us consider and look at the thing in its worst aspect; see if some arrangement cannot be made by which you can perform your contract entered into with me." Then on the 4th of March he writes another letter: "Mr. McKirgan [that is the lawyer of the defendant] advises me that you will not carry out your contract with me because Mr. Hoyt refuses to cancel the second mortgage which he holds against your Oakwood property, and which you say he promised to do and take a second mortgage on other property instead, but which Mr. Hoyt tells me he never agreed to do, and would not do now anyhow, because of the way in which he considers you have treated him." Now I suppose, reading between the lines, that Mr. Hoyt thought that the defendant was going to switch this thing through and give him the go-by, and leave his mortgage out in the cold, without giving him any notice. Now that is what I suppose that means. No proof of it here except Mr. Hoyt says he heard of it, and called on the defendant himself. The defendant says he told Hoyt-I am not going into the evidence now, but the evidence in this letter, and from all the evidence-that Mr. Hoyt thought that, if he had not got his mortgage on just as he did, the property would have been conveyed away and his mortgage left out in the cold. "However," the letter continues, "be this as it may. I have made such arrangements that it is necessary for me to insist upon you carrying out your contract with me, and, in order to further your ability to do so on account of the present conditions, I am willing to take back a second mortgage on your farm at New Providence and on the

East Orange property which is to be deeded to you for the amount necessary to equalize the difference that would be coming to me on account of this additional mortgage against your property. I will wait until Tuesday for you to carry out your contract with me, subject to this change, and, if you do not do so at that time, I will feel compelled to bring suit for damages against you at once thereafter, as I will feel that you are inclined to make excuses to get out of the contract which you have made with me, and, by not fulfilling which, you will show yourself entirely regardless of the inconvenience and damage you will have put me to. Awaiting your immediate reply, I remain," etc.

Now there is an offer to indemnify him against the $2,500 mortgage, extra $2,500 mortgage on the defendant's property, which was to be left over by the contract, and to indemnify him against the $2,000 additional mortgage, by taking a back mortgage on his New Providence land. No explanation has been made, although this letter was admitted to have been received by the defendant, and, although it was read here in court, no explanation is made of his refusal to accept that way out of a scrape. It was, in fact, a transfer of the $2,500 or $2,000 onto the New Providence property. Now the reason for it which the court may guess at or infer, or read between the lines, is this: An attempt was made by the defendant to prove that this was a hard bargain; that the trade was unequal; that the complainant got the best of it. It is not set up in the answer that there was anything hard about it, or that there was any such great difference as would strike the court as rendering the contract unfair; but here were two men dealing in property, made a fair, open trade, both with their eyesopen, both entirely competent and able to take care of themselves, as I have so frequently remarked, and it turns out that, when this gentleman with the unrecorded mortgage comes along and is asked to transfer it over, he looks at the property that the complainant is going to convey to the defendant, and he says, "I won't take a second mortgage on that," and hints to the defendant that he has made a mistake, that he has made a bad bargain, and he gets sick of it, and wants to back out. Now the simple question is whether or not there is anything in this caseupon which the court can say, with anything like a regard to judicial fairness, that thereis anything in this contract or in the circumstances to enable the court to let up, so to speak, and relieve this defendant of his obligation. Why, I presume there never was a trade yet made that there was not a difference somewhere, or each one thought he was getting some advantage by the trade, and the party who wants the property that he has bargained for wants that property. The other fellow gets sick of it, and don't want the property he has bargained for, and he wants to back out. Now if the court went into

all those things in every case it would never arrive at a conclusion. The circumstances which induce the court to lay its hands on on account of hardship are not found in those lines at all. They are something quite different; and I have been looking at the authorities here cited by my friend, the defendant-Stoutenburg v. Tomkins, and other cases. They are different cases entirely, particularly Stoutenburg v. Tomkins, which goes about as far as any in laying down the rules, and with great accuracy, by Chancellor Williamson. Such a case as this has never been considered by the court as sufficient.

Where one party has made some false representations, or one party is deficient in ability to take care of himself and comes in, and there is proof that he is weak-minded, or easily misled, and all that sort of thing, why that is another thing; but there is nothing of that kind here. Therefore I find no defense at all for this gentleman. He has put himself in a scrape, where he is bound to convey this property free and clear of incumbrance, except $2,500. It is mortgaged for $4,500, and he is in the lurch $2,000. It is his duty, his contractional duty, to remove that mortgage. If he does not do it, this court has the power to give a decree against him for $2,000, or such sum of money as the master may find at a particular day when the decree is to be made will be necessary to lift it. It will be something less than that, I believe. So I think the complainant is entitled to a de

cree.

I took occasion during the argument to state why this court will entertain jurisdic tion of a bill for specific performance by vendor against vendee, but this is not vendor against vendee. It is vendee against vendor. But the remarks I made apply here. This is a contract that ought to be carried through in the presence of the court or one of its officers, a master of the court necessarily and properly. Then, if this had been an action at law to recover the difference in money here, if it had been a plain money case, why the party would have been entitled to recover the amount of purchase money that was to be paid, the vendor would be entitled to recover against vendee the purchase money the vendee agreed to pay, and, when that purchase money was paid and collected, then the vendee would be entitled to the conveyance; but here it is vendee against vendor, and it is not a case for damages at all, and it is not a case where the point made by the learned counsel, with confidence that the remedy is at law, applies in the least. To hold that the proper remedy here is at law is simply to hold that the Court of Chancery never will entertain a decree for specific performance by either vendee against vendor or vendor against vendee, and the only question as I see from the start is whether the fact that this gentleman finds himself in the predicament of having disenabled himself in conveying this property

by putting the mortgage on is an excuse. Now there are a line of cases on that subject, and I should have been very glad to have been furnished with them. But my recollection of them, general recollection from reading on that subject, is that there is no case that would cover this point, no case that would allow the defendant who deliberately, with his eyes open, agrees to make a conveyance of this kind to avoid being compelled to specifically perform it, if the complainant is willing to risk the cost, and all that part of a decree against him for the amount of the money which is necessary to relieve the title. But the whole hardship is taken away by the complainant's offer to take a mortgage, a counter mortgage, on other property which the defendant owns. I don't say that he is bound to do that in his decree. I don't know what the offer of the bill is, whether you offer to do it, whether you have examined the title, and all that sort of thing, to see if it is proper for you to do it. I will hear counsel on the terms of the decree, but the ultimate decree is that the defendant pay the money; that he discharge that mortgage and perform his contract.

My opinion is that the complainant is entitled to a decree for specific performance, and to costs and counsel fee.

(75 N. J. L. 824) SHULER v. NORTH JERSEY ST. RY. CO. (Court of Errors and Appeals of New Jersey. March 2, 1908.)

STREET RAILROADS-INJURY TO PEDESTRIAN—

CONTRIBUTORY NEGLIGENCE.

The plaintiff alighted from a street car, passed around the rear platform, and was struck by the corner of the fender of a car approaching at excessive speed on the other track just as he reached the nearest rail of that track. He looked for the approaching car just as he was struck. Held, that he was guilty of contributory negligence in failing to wait for the car from which he alighted to move on, so as to enable him to look with effect along the other track, and that the fact that the approaching car was running at an excessive speed did not relieve him of the charge of negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 204-209.]

Magie, Ch., and Pitney and Bogert, JJ., dissenting.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County. Action by George H. Shuler against the North Jersey Street Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. D. Edwards and Edwin F. Smith, for plaintiff in error. Black & Drayton, for defendant in error.

SWAYZE, J. This case was tried before the decision of this court in Eagen v. Jersey City, Hoboken & Paterson Street Railway Co. (N. J. Err. & App.) 67 Atl. 24, 11 L. R. A. (N. S.) 1058, and the trial judge pursued the

same course that had been pursued at the trial of that case. The only facts which distinguish the present case are that the speed of the car which struck the plaintiff was excessive, and that he had barely reached the nearest rail instead of the middle of the track.

The excessive speed of the car is persuasive of negligence on the part of the defendant; but we fail to see how it relieves the plaintiff of the charge of contributory negligence for not looking, or for not waiting until the obstruction to his vision by the car from which he had alighted was removed. The speed of the car in no way prevented him from seeing its approach, and the faster it was going the less excuse he had for advancing in a direction across its track. If it were going so fast that the motorman obviously did not intend to respect his right, he would have been guilty of negligence in attempting to cross. Earle v. Consolidated Traction Co., 64 N. J. Law, 573, 46 Atl. 613.

The fact that he had only reached the rail, and was struck merely by the corner of the fender, bears against the plaintiff. In the Eagen Case the jury might have found that the plaintiff had reached the middle of the track. If so, there was at least a chance for the inference that the motorman might have seen him in time to avoid the accident, if he had the car under proper control. In the present case, the position of the plaintiff was such that the motorman could not have seen him until the front platform of the approaching car was abreast of the rear platform of the car from which the plaintiff had just alighted.

We cannot distinguish the case in any feature helpful to the plaintiff from the Eagen Case, and think there should have been a nonsuit.

The judgment must therefore be reversed.

MAGIE, Ch., and PITNEY and BOGERT, JJ., dissent,

(74 N. J. E. 264)

HARNED v. ROWAND et al. (Court of Chancery of New Jersey. Feb. 18, 1908.)

RECEIVERS-APPOINTMENT-Grounds.

Where two lien claimants have the right to presently enforce their liens on perishable property, and the owner of the property does not deny the existence of the liens, and the only question is as to their priority, a court of equity has jurisdiction of a bill filed by one lienor, asking for an injunction and appointment of a receiver, the averments of the bill being denied by the other lienor, and will appoint a receiver to turn the property into cash, to be held by the court until the rights of the parties can be determined, as the case is an exception to the rule that equity will not give preliminary relief where the averments of the bill are denied. [Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Receivers, § 24.]

Suit by John F. Harned against Benjamin E. Rowand and another for an injunction

and the appointment of a receiver of mortgaged personal property. Relief granted.

John F. Harned, pro se. Scovel & Boyle, for defendant Braddock.

LEAMING, V. C. Complainant and defendant Braddock each hold liens on the perishable personal property set forth in the bill. The validity of complainant's lien is not disputed. The lien of defendant Braddock, as chattel mortgagee, is superior to the lien of complainant, if it is a valid lien for the full amount for which it is claimed. Complainant concedes that defendant Rowand, as owner of the chattels, had the right to make defendant Braddock a preferred creditor by executing to him the chattel mortgage in question, provided the right was honestly exercised; but complainant avers that the mortgage is fraudulent as to him and that the amount which the mortgage on its face professes to secure is not owing to the mortgagee, and also that the mortgagee's conduct has been such as to equitably deny to him the right to now claim the mortgage as a lien paramount to the lien of complainant. Defendant Rowand, owner of the chattels, makes no defense. Defendant Braddock, as mortgagee, denies the fraud, and avers that the full amount of his mortgage is due. The condition of the mortgage has been broken by the removal of the chattels to another county by the mortgagor, so that the mortgages may be treated as due.

While the denial of the averments of a bill will ordinarily operate to prevent preliminary relief, yet in the present case the whole controversy is one touching the priority of liens the existence of which are not disputed by the owner of the chattels. As against the owner both lien claimants appear to be entitled to presently enforce their liens. For complainant to enforce his lien by sale, the sale must be made either in defiance of the mortgage or subject to it. If sold subject to the mortgage, the sale would necessarily be in bulk, and to that extent to a disadvantage, and the purchaser would stand where the complainant now stands, with the same right that complainant now has to contest the validity of the mortgage. If sold in defiance of the mortgage, no purchaser could know whether he was purchasing a clear title; and it is also manifest that such a sale would be at once enjoined by this court, should the mortgagee apply for that purpose. The case is, therefore, one of that class where equity may appropriately intervene to convert the perishable property into cash, in order that the fund may remain intact for distribution according to the respective rights of the parties, as they shall be ascertained. The propriety of preliminary relief of this nature in cases of this class is discussed and sustained in Long Dock Co. v. Mallery, 12 N. J. Eq. 93, and in same case on review 12 N. J. Eq. 431. The interests

of all parties seem to be reasonably conserved by this course.

I will advise an order appointing a receiver to make sale of the property on which complainant has a lien, free from incumbrances, with direction to the receiver to pay the proceeds of the sale into court to await the final determination of the rights of the respective parties.

(73 N. J. E. 676)

SKED et al. v. PENNINGTON SPRING WATER CO.

(Court of Errors and Appeals of New Jersey. March 2, 1908.)

EASEMENTS-GRANT-CONSTRUCTION.

A grant of "the right to enter upon lands to dig and build a reservoir, the said reservoir not to occupy or cover more than one-half acre of ground," is not a grant of a right to occupy one-half acre of ground with reservoirs, but of the right to build a single reservoir, whose dimensions should not exceed such prescribed area. (Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Mary J. Sked and others against the Pennington Spring Water Company. Decree for complainants (65 Atl. 713), and defendant appeals. Affirmed.

J. Lefferts Conard, for appellant. Frederic R. Brace, Jr., and Frank S. Katzenbach, Jr., for respondents.

GARRISON, J. Philip S. Sked in his lifetime granted to the Pennington Spring Water Company "the right to enter upon his lands to dig and build a reservoir at what is known as the 'Middle Spring'; the said reservoir not to occupy or cover more than onehalf acre of ground." The spring company, upon receiving this grant, at once entered upon the lands of Sked, and dug and built a reservoir that did not occupy or cover more than one-half acre of ground. Ten years later the spring company, without any additional grant, commenced to bore another well on the lands of Sked, outside the ground covered by its reservoir, but so related to it that both the land occupied by the old reservoir and that on which the new well was being sunk could be brought within the area of half an acre. The right to sink the new well is claimed under the old grant.

Upon a bill filed by Mrs. Sked (Philip having died) the Court of Chancery by its decree perpetually enjoined the spring company from boring wells upon complainants' lands, upon the ground, as stated in the conclusions of the learned Vice Chancellor who heard the cause, that the terms of the grant, being originally indefinite and having been mutually fixed and made definite by a practical location by the parties, cannot now be altered or extended in invitum the grantor.

Our conclusion is that this decree should be affirmed; but we see no occasion for invoking the doctrine of practical location, inas

much as the grant itself is at once concrete and determinate. The grant was not of a right to occupy a half acre of land with reservoirs, but to build a single reservoir whose dimensions should not exceed a prescribed area. This prescription was a limitation upon the thing granted, and not an affirmative grant either in præsenti or in futuro. A reservoir of the prescribed character having been built, that part of the grant was fully enjoyed; and all that remained to the grantee was an implied right of entry for the maintenance of its said reservoir and an express right to maintain pipes to draw off the water contained in it. In the face of this plain import of its grant, the claim of right by the spring company is without foundation.

The objection that the case is not one for equitable relief is met by the consideration that the appellant is putting a permanent structure upon the complainants' land under a color of right that would apply equally to the entire area that could be covered by a half acre of land of any desired shape extended in any desired direction from the existing reservoir. The right thus set up by the appellant being based wholly upon the misconstruction of a grant, the meaning of which is entirely clear, a court of equity is justified in interfering by injunction to prevent a succession of vexatious suits productive of no definite results. Kerr on Inj. p. 200; 22 Cyc. p. 768; Shimer v. Morris Canal Co., 27 N. J. Eq. 364; West Un. Tel. Co. v. Rogers, 42 N. J. Eq. 311, 11 Atl. 13; Hodge v. Giese, 43 N. J. Eq. 342, 11 Atl. 484.

The decree of the Court of Chancery is affirmed.

MAYER v. KLOEPFER.

(Court of Errors and Appeals of New Jersey. March 4, 1908.)

ANIMALS

VICIOUS DOGS KNOWLEDGE OF OWNER-QUESTIONS FOR JURY.

In an action for injuries by the bite of a dog owned by defendant, proof that the dog had bitten two persons previously to its attack on plaintiff, and that such persons had communicated the fact to defendant, was evidence of the viciousness of the dog, and defendant's knowledge thereof, sufficient to entitle plaintiff to the submission to the jury of defendant's liability. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Animals, § 265.]

Error to Supreme Court.

Action by Charles Mayer against Louis Kloepfer. There was a judgment for defendant, and plaintiff brings error. Reversed, and venire de novo awarded.

J. A. Kiernan, for plaintiff in error. Samuel Schleimer, for defendant in error.

PER CURIAM. This was an action brought by Mayer for injuries inflicted upon him by the bite of a dog owned by Kloepfer. The proofs submitted on behalf of Mayer fairly supported his contention that he had