rights," then why does the statute use the words "damage to the person or reputation"? For under such a construction the words "injury to the person" must include injury to reputation as well as to all other personal rights, and the use of the word "reputation" in the statute would be superfluous. And applying that rule of construction which gives effect to every word of a statute when possible, it follows that the words "injury to the person" are not the equivalent of the words "injury to personal rights." Similar views are expressed in Wagner v. Lathers, 26 Wis. 436, and in Lellis v. Lambert, supra.

We think it is apparent that this statute was not designed to create new causes of action, but to give to the wife, when living separate, the right to sue alone in the same actions in which, prior to the act, it was necessary that the husband should join. The result would seem to follow that, if the wife had no action at common law for the alienation of her husband's affection, she cannot derive such a right from the statute in question. In some jurisdictions the denial of this right of action to the wife has been characterized by the judges as an unjust discrimination against her. In other jurisdictions this class of actions has been regarded as of doubtful expediency. But we think these and similar considerations are for the Legislature rather than the courts, and that it is our duty, if possible, to declare the law as it is, and not as we may think it should be. For the reasons stated, we think the present action cannot be sustained. Therefore the other grounds of the demurrer need not be considered.

The demurrer is sustained, with costs.

(64 N. J. E. 614)

WISNER v. OSBORNE et al. (Court of Chancery of New Jersey. May 16, 1903.)

INFANCY-WAGES OF SON-RIGHTS OF CREDITORS OF FATHER.

1. An insolvent debtor permitted his infant son who lived with him to contract for wages to be paid to the son. Held, that the stock of a corporation into which the wages were afterwards converted, and which stood in the name of the son, was not subject to the claims of his father's creditors.

(Syllabus by the Court.)

Bill by Ferdinand H. Wisner against J. K. Osborne and others. Decree for defendants. J. A. Beecher and Mr. Thompson, for complainant. John R. Hardin, for defendants.

STEVENS, V. C. This case is in its essential features like Taylor v. Wands, 55 N. J. Eq. 495, 37 Atl. 315, 62 Am. St. Rep. 818. There John Taylor, as here J. K. Osborne, having failed in business and being heavily indebted, undertook to form a corporation, putting in, as capital, money derived from the surrender of an insurance policy issued

There, as here, money put in

for the benefit of the wife. the stock representing the was, most of it, issued to the wife. There, as here, the debtor took one share of stock to qualify him to become a director and president, and there, as here, the stock, chiefly through the debtor's skill and experience, increased greatly in value and the company earned and paid large dividends. It was there held by the Court of Errors that the wife and her transferees were not only entitled to retain the stock as against her husband's creditors, but were also entitled to the company's earnings, although, as Mr. Justice Magie said in that case, the corporation owed its success to the husband's business ability and exertions.

I cannot find anything in the proofs to differentiate that case from this. The evidence is voluminous, and some of it vague and conflicting, but the material facts are few in number and not controverted. Much of the evidence relates to a period when the company's affairs became prosperous, and has little, if any, bearing upon the merits, being admitted only because it was claimed that it would throw a reflex light upon the period of organization in 1892. It does not seem to me to illumine that period at all, or to cast any doubt upon the real character and the good faith of the original transaction, if we view it in the light of the law as authoritatively laid down in Taylor v. Wands. For three years the company had a precarious existence, having few assets, loaded down with debts and subject to chattel-mortgage sales. Had this suit been brought during that period, there would have been absolutely nothing on which to found a decree that the stock or the property was really the husband's and subject to his debts. The mere fact that this company, after that time, became prosperous, and that its prosperity was due in large measure to the efforts of the husband, in his character of officer and manager, cannot convert that into his property which before belonged to his wife. Section 9 of the bill of complaint charges that the stock of the company belongs to Joseph K. Osborne, but that 50 shares stand in the name of his son Edgar; and section 15 charges that the stock is in equity subject to the lien of the judgment. In support of this vague allegation, the plaintiff relies upon the following facts: Edgar came of age on June 29, 1894. Both before and after that time he lived with his father. At the age of 17, he went to work in a printing office in New York. He received first $5 a week, and afterwards $10. A part of his earnings he, with his father's consent, invested in stock of the Eighth Ward Building & Loan Association. The investment was made in his own name. When the J. K. Osborne Manufacturing Company was organized he sold this stock, and gave the proceeds ($400) to its treasurer. For this he received on October 29, 1892, three shares of the J. K. Os

borne Company. About the same time he went into that company's employ, receiving, first, $5 a week, then $10, and afterwards more. On April 27, 1895, the company was indebted to him for salary the sum of about $800. On that day an agreement in writing was entered into between himself, his father and mother, and one Wolfe for an apportionment of 175 shares of unissued stock, by the terms of which he was to receive and did in fact receive 32 shares. This was received by him apparently in satisfaction of the moneys owing to him at the time by the company. The stock-certificate book and the minutes show that the stock was issued to the stockholders in a very irregular way, but, so far as Edgar's liability to the complainant is concerned, these irregularities are not very material. The issue to Edgar of three shares is thus shown to have been made at a time when he was a minor, and the $800 for which the 32 shares were issued represented wages or salary due in part before and in part after he came of age. The contention is that the money which Edgar put in and the wages due for his labor before his majority belonged to his father, and that consequently the stock given for them is, in law, stock held by him in trust for his father and subject to the claims of his father's creditors.

I will assume that the before-mentioned allegations of the bill are sufficiently specific to permit of this contention being urged. On that assumption, I do not think that the claim can be maintained. The question is, can a father who is indebted permit his minor son, as against his creditors, to receive and invest his earnings and hold them as his own? According to the Roman law, children of any age, begotten in lawful wedlock, were under their father's power. As regarded the person this power, until after the time of Augustus, extended to their life and liberty; as regarded property, in the words of the Institutes, lib. 2, tit. 9, "Anciently whatever came to children, male or female, was acquired for the parents without any distinction, if we except the 'peculium castrense,' and this so absolutely that what was acquired by one child the parent might have given to another or to a stranger, or sold it or applied it in what manner he thought proper." In the time of Justinian, however, the father was only permitted to take the usufruct of what the son had acquired by any other means than his father's fortune. The father might indeed have emancipated the son, but emancipation, at any age, depended almost entirely upon the father's will. In striking contrast with the civil law is the common law. That law gives the infant's property to the infant. It does not even give the father the usufruct or enjoyment of it during the limited period of the son's minority. Says Blackstone (volume 1, p. 453): "A father has no other power over his son's estate than as his trustee or guar

dian; for though he may receive the profits (of land held by socage tenure) during the child's minority, yet he must account for them when he comes of age." As to personalty, says Judge Vredenburg, in Graham v. Houghtalin, 30 N. J. Law, 557, when a child in the lifetime of its father becomes vested with it, "no one is strictly entitled to take it as guardian until a guardian has been duly appointed by some public authority." Under paragraph 38 of the orphans' court act (Gen. St. p. 2363), first enacted in 1843 (P. L. p. 84), the father may be appointed guardian of the estate real and personal of his minor children. The law is that the minor's property, however acquired, is his own, and that even the father, if he be trusted with its administration, must account to the infant for it when he comes of age.

This is the status of the minor's property. Now, as to his earnings. Says Blackstone (volume 1, p. 453): "He [the father] may inIdeed have the benefit of his children's labor while they live with him and are maintained by him, but this is no more than he is entitled to from his apprentices or servants." But it has been held that if the contract, made with his father's consent, be to pay the child, then the child is entitled to his earnings, and may enforce his right to them by suit. Snediker v. Everingham, 27 N. J. Law, 143. They belong to him just as any other property belongs to him. It is obvious that the contract may assume several phases. The father may (1) contract with the employer for his son's service, and may expressly stipulate that the wages shall be paid to him (the father); or (2) he may stipulate generally for such service without saying to whom the wages shall be paid, and in either case he alone will be entitled to sue for them; or, (3) as was done in Snediker v. Everingham, 27 N. J. Law, 143, he may stipulate that the wages shall be paid to the son, in which case the son may sue for them; or (4) the son, with the father's consent, may make the bargain for wages payable to himself (the son), in which case also the son may sue for them, and the father's consent may be expressly given or it may be implied from circumstances. Stall v. Fulton, 30 N. J. Law, 430. It has always been the law that an infant's contract, beneficial to himself, is not necessarily void, but, in general, voidable at the option of the infant when he arrives at full age. It is often capable of being enforced by the infant against the other party to it. The law is thus stated in Bacon's abridgment (title "Infancy and Age," vol. 5, p. 134): "It is laid down as a general rule that infancy is a personal privilege, of which no one can take advantage but the infant himself, and that therefore, though the contract of the infant be voidable, yet that it shall bind the person of full age. For being an indulgence which the law allows infants to protect and secure them from the frau and imposition of others, it can only be in

tended for their benefit, and is not to be extended to persons of years of discretion, who are presumed to act with sufficient caution and security. And were it otherwise, this privilege, instead of being an advantage to the infant, might in many cases turn greatly to his detriment." It has been held that where a contract for service, made by an infant, is shown to be beneficial to him, it may be binding upon him. Leslie v. Fitzpatrick, 3 Q. B. Div. 229. Tested by these well-established rules, it is entirely clear that the creditors of J. K. Osborne cannot assert with success that the stock held by Edgar belongs to his father. The fair implication from the evidence is that the agreement with the printer was made for Edgar's benefit, and that the wages were to be paid and were actually paid to him. His ownership of the money thus received is further evidenced by his investment of it, in his own name, without objection on the part of his father, in a building association, and by his subsequent payment of it to the J. K. Osborne Company. So, too, as far as appears, the contract of the J. K. Osborne Company was to pay, not his father, but Edgar; and his father's assent to the arrangement appears not only from the fact that he was the company's manager, but also from the fact that he joined in the agreement of April 27, 1895, which gave the stock to Edgar. Up to the moment when Edgar took the stock the wages, therefore, were his own, and if his, then the stock into which they were converted was his also.

But it is said that while a father may give to his son his son's earnings when solvent, he may not do it when insolvent. This proposition is fallacious in that it implies that all the son's earnings, past and future, under all circumstances, belong absolutely to the father, who, it is said, has no more right to make a gift of them than he has to make a gift of any other of his property. This might be true of a case in which the father has bargained for payment to himself, if wages might be claimed in a creditors' bill-a claim, under the law of New Jersey, of more than doubtful validity, in view of the provisions of our execution and chancery acts (Gen. St. p. 1423, § 40; Gen. St. p. 390, § 91), which exempt from seizure what is due for the labor or personal services of the debtor or any member of his family, and of what is said in Whitney v. Robbins, 17 N. J. Eq. 363, viz., that the court of chancery has no original jurisdiction to collect the choses in action of a debtor and apply them to the payment of his debts. If a son's wages are not subject to the claims of creditors, either at common law or by statute, their transfer to the son cannot be fraudulent. But however this may be, the proposition above contended for could not be true of a case in which the bargain, made with the father's consent, was that the wages should be paid to the son. In such a case they would belong to the son ab initio. might, as I have shown, enforce payment of

He

them by action. The contention would then go to this extent: That when a father is indebted, he is under a disability that will prevent him from allowing his son to make a bargain for wages; he must compel his son to labor for the benefit of his father's creditors. No such doctrine is to be found in our law. Atwood v. Holcomb, 39 Conn. 275, 12 Am. Rep. 386. There are two cases in our court of last resort which are very much in point. The first is Peterson and Wife v. Mulford, 36 N. J. Law, 481. In that case it was decided that a husband might permit his wife to labor for herself and to appropriate to her own use the avails of her labor, and that such permission is good against the creditors of the husband if such proceeds have not actually been reduced into his possession. In this case the wife had saved $200 out of her earnings. She took the money and with it and with a note which she gave procured an assignment to herself of a mortgage upon property of her husband at a time when he was heavily indebted. She did it at his suggestion and with his consent, and it was held that the transaction was valid as against her husband's creditors. This was a stronger case than that of an infant, for at common law the husband's control over his wife's earnings was absolute. At the time of the decision the statute had not, as it now has, given to the married woman her own earnings. The court nevertheless said: "Though the earnings of a wife are not within the provisions of the married woman's act, yet, in a series of decisions in this state arising out of the spirit of that act and in accordance with its provisions, it has been held that the earnings of a married woman, working on her own account by her husband's permission, or earned in working for herself without his permission, if given to her by him, are her separate property and within the provisions of that act, and that a husband is not bound to compel his wife to labor for his creditors or to appropriate her earnings for them, and that such permission and gift are valid as against his creditors." A still more direct authority is that of Costello v. The Prospect Brewing Co., 52 N. J. Eq. 557, 30 Atl. 682. The syllabus of that case is as follows: "A wife to whom her husband had made a voluntary conveyance of an equity of redemption of real estate paid with her husband's consent out of her own and her children's earnings a portion of the mortgage debt. On a bill filed by her husband's precedent creditors to set aside the conveyance to the wife as fraudulent, held that the decree should preserve the right of the wife to a lien for the amount which she had so paid." Judge Reed, delivering the opinion of the court, said: "The right of a father to forego his claim to the earnings of his children is equally clear. He may sell or give to the infant his time, or authorize him to make contracts in his own name and receive pay therefor, and in such case the minor may sue for and recover his

wages. There is no rule of law which requires the husband to compel the wife, or the parent to compel the children, to work for his creditors."

In the case in hand it is, as I have said, a fair inference from the evidence that the contract for wages was made with the father's consent, and that it contemplated payment to the son. The wages, therefore, belonged to the son, and not to the father. They were as much his property as anything that came to him by gift or bequest. When he received them he could invest them as he pleased.

(69 N. J. L. 579)

S. B. ELLIS CO. v. EYTH. (Supreme Court of New Jersey. June 8, 1903.) PLEADING-STATE OF DEMAND-WAIVER OF OBJECTIONS-APPEAL FROM DISTRICT COURT.

1. A failure to object to a formal and amendable defect in the state of demand before the district court is a waiver of the objection.

2. This court will not reverse a finding of fact by the district court which is supported by evidence.

(Syllabus by the Court.)

Appeal from District Court of Jersey City. Action by the S. B. Ellis Company against George C. Eyth. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued February term, 1903, before DIXON, GARRISON, and SWAYZE, JJ.

Potts, Midlige & Higgins, for appellant. Carrick & Wortendyke, for appellee.

SWAYZE, J. Two reasons are relied on for the reversal of the judgment rendered in favor of the plaintiff below:

1. The state of demand was defective, in that claim was made, among other items, for a "balance" of $58.60, without setting out the specific items of the account from which the balance arose. No objection was made at the trial to the state of demand. It is not now suggested that the balance as claimed is not due the plaintiff. The objection is purely formal, and, if it had been made at the trial, the state of demand might have been amended. The objection now comes too late. Steward v. Sears, 36 N. J. Law, 173 -a case in which no state of demand was filed. In Butts v. French, 42 N. J. Law, 397, there was a fatal variance between the state of demand and the proofs. This objection was duly made before the justice, so that the plaintiff had opportunity to amend. This he failed to do. On the trial of the appeal before the common pleas, the same variance appeared as before the justice, and the plaintiff, under the statute, was then precluded from making an amendment. If the defendant had renewed the motion to nonsuit made before the justice, the plaintiff's case would have failed. No such motion made by the defendant, and this court held

1. See Pleading, vol. 39, Cent. Dig. 1360.

was

that he was precluded from raising the question here. The rule was applied in a case of summary proceedings between landlord and tenant in McQuade v. Emmons, 38 N. J. Law, 397, and in a case under the forcible entry and detainer act (Gen. St. p. 1596) in O'Hagan v. Crossman, 50 N. J. Law, 516, 14 Atl. 752.

2. The state of demand, in addition to the item already mentioned, contained items under four different dates. The amount of each of these items was paid on the delivery of the goods. The defendant urges that these payments should be appropriated to these four items. The plaintiff has applied them generally on account, and thereby reduced the balance claimed upon the earlier portion of the account to $58.60, as above stated. No doubt, if nothing more had appeared than the fact of the payment of the exact amount due for each lot of goods, upon their delivery, the necessary inference would have been that the payments were to be appropriated to those particular items. There was evidence, however, that the payments were made generally on the account. This was disputed, but, the trial court having found against the defendant on evidence upon which its finding may be supported, we will not review that finding. The principle has recently been restated, and the earlier cases collected, in McAdam v. Block, 63 N. J. Law, 508, 44 Atl. 208.

It is argued that the plaintiff should not be heard to say that the payments were appropriated to the earlier items of the account, because evidence of the previous indebtedness could not legally be given under the state of demand. This argument obviously rests upon the insufficiency of the demand for the balance due upon the earlier portion of the account. If the objection had been raised at the trial, an amendment could have been made setting out the earlier items both of debit and credit, and this argument would have then been without force. It is too late to urge it now.

The judgment is affirmed, with costs.

(69 N. J. L. 582) AMERICAN SODA FOUNTAIN CO. v. VAUGHN.

(Supreme Court of New Jersey. June 8, 1903.) CONDITIONAL SALE-DELIVERY-LOSS BY

FIRE-RECOVERY OF PRICE.

1. In a contract of sale, where the title remains in the vendor until the purchase price is paid, and notes are given for unpaid installments of the purchase price, if it appears upon a construction of the contract that the consideration for the notes was the delivery of the goods, with the right to acquire title by payment, it is no defense to an action upon the notes that the subject of the sale was destroy. ed by fire before the title passed. (Syllabus by the Court.)

Certiorari to District Court of Paterson. Action by the American Soda Fountain Company against Charles B. Vaughn. Judg.

ment for defendant, and plaintiff brings certiorari. Reversed.

Argued February term, 1903, before DIXON, GARRISON, and SWAYZE, JJ.

Wilcox, Blauvelt & Tuttle, for prosecutor. C. Frank Kireker, for defendant.

SWAYZE, J. This is an action upon one of a series of promissory notes given by the defendant for the purchase price of soda water apparatus bought of the plaintiff. The note refers to a contract between the parties dated September 6, 1900, and by its terms provides that the title to the apparatus shall not pass until all the notes are paid. The contract of September 6, 1900, is in the form of an order for the apparatus, by which the defendant agrees, upon receipt of the bill of lading or tender of the goods, to honor sight draft or other demand for $57, and to pay the balance as follows: $170 on April 1, 1901; $35 per month for six months, and $15 per month for six months, in each year until paid. This order also contains an agreement on the part of the defendant to insure the apparatus; making the loss, if any, payable to the plaintiff as 'ts interest may appear, and to keep the same insured until the payments are made. It contains, also, the following clause: "The delivery of said apparatus to be conditional upon compliance with the above terms and conditions, and said apparatus to remain the property of American Soda Fountain Company until paid for." The apparatus was destroyed by fire February 9, 1902. The note in suit matured October 1, 1902. The defense interposed was a total failure of consideration for the note, and the district court of Paterson, upon this issue, found in favor of the defendant.

The question to be determined is, what was the consideration of the note? If the passing of the title to the apparatus was the consideration, the defense must prevail. If the delivery of the apparatus, with the right to acquire title, was the consideration, the plaintiff must prevail. We think the consideration for the note was the delivery of the apparatus, with the right to acquire title.

The note itself states the consideration to be certain soda water apparatus "which I have received of said American Soda Fountain Company.". The order of September 6, 1900, as above stated, provides for partial payment upon the receipt of the bill of lading or tender of the goods, and a payment of a considerable sum on April 1, 1901, and the payment of monthly installments thereafter. Delivery of the apparatus is conditioned upon compliance. The consideration for these payments, and for the monthly installments as they fell due, must necessarily be the same as the consideration for the notes not yet matured. It can hardly be contended that the consideration for the payments already made, and for the notes

which matured prior to the fire, which we may assume are paid, has failed. It must have failed if the consideration was the passing of the title. The language of the note and order also indicate that the obligation of the defendant was absolute immediately upon the delivery of the goods, and was not conditioned in any way upon the passing of the title. The title was retained by the plaintiff merely as security for the unpaid purchase money. Nothing remained to be done by the plaintiff to perfect the title of the defendant. That title would have become perfect immediately upon payment. As was said by the late Chief Justice Depue in Marvin Safe Company v. Norton, 48 N. J. Law, 410, 7 Atl. 418, 57 Am. Rep. 566: "When the terms of sale are agreed upon, and the vendor has done everything that he has to do with the goods, the contract of sale becomes absolute. Delivery of the safe to the carrier, in pursuance of the contract, was delivery to Swartz and was the execution of the contract of sale. His title, such as it was, under the terms of the contract, was thereupon complete." This conclusion seems to be the necessary result, also, of the reasoning in the case of Campbell Printing Press & Manufacturing Company v. Rockaway Publishing Company, 56 N. J. Law, 676, 29 Atl. 681, 44 Am. St. Rep. 410. In this case judgment had been recovered upon notes given for installments of the purchase price of a printing press. Subsequently the vendor brought suit in replevin for the press. The trial court held that the institution of the suit by the vendor upon the notes for the purchase price was an election of its remedy, and a waiver of its right to retake the property. The Court of Errors reversed the judgment, and held that the vendor had a right to enforce the payment of the notes without surrendering its right to claim the press under the title reserved by the contract of sale. The exact question presented in the present case has been considered in other states, and, although there is conflict in the authorities, the weight of authority is in favor of the plaintiff. Burnley v. Tufts, 66 Miss. 49, 5 South. 627, 14 Am. St. Rep. 540; Tufts v. Griffin, 107 N. C. 47, 12 S. E. 68, 10 L. R. A. 526, 22 Am. St. Rep. 863; Osborn V. South Shore Lumber Co., 91 Wis. 526, 65 N. W. 184. A similar question was considered by the Supreme Court of Massachusetts in White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537. Mr. Justice Holmes, in the opinion of the court, uses the following language: "If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby bind himself to pay the whole sum." Each case must be determined by the terms of the contract involved. For instance, in the case of Arthur v. Blackman (C. C.) 63 Fed. 537, a different result was reached.