(93 N. J. Law, 466)

(108 A.)

IARUSSI v. EAGLE BREWING CO. OF

NEWARK, N. J. (No. 45.)

"The court found that the 'writing was an assignment of the lease, although it was not worded strictly as an assignment should be.' "There was no warrant for such a finding un

(Court of Errors and Appeals of New Jersey. der the competent evidence in the case. There Nov. 17, 1919.)

LANDLORD AND TENANT

was an utter absence of competent proof that the defendant company had accepted the as231(6)—EVIDENCE signment. The farthest extent to which the

NOT SHOWING COMPLETE ASSIGNMENT OF
LEASE.

In an action to recover rent from a brewing company as assignee of a lease, evidence held insufficient to show that the company had accepted any assignment to it, showing only that its agent told the lessee that the company wanted the lease assigned as security.

Appeal from Supreme Court.

Action by Pasquale Iarussi against the Eagle Brewing Company of Newark, N. J. From judgment for plaintiff, defendant appealed to the Supreme Court, which reversed and ordered new trial, and plaintiff appeals. Judgment of the Supreme Court affirmed.

testimony in the case goes is that an agent of the brewing company told Di Rollo that the defendant company wanted the lease assigned to it as security. But this is far from constituting the transaction and assignment of the lease, and an acceptance thereof by the defendant company, and an assumption by it of the obligations of the tenant to his landlord. "The judgment is reversed, and a new trial ordered."

J. Victor D'Aloia, of Newark, for appellant. Lintott, Kahrs & Young, of Newark, for respondent.

PER CURIAM. The judgment under review will be affirmed for the reasons set

On appeal from the Supreme Court in forth in the opinion of the Supreme Court. which the following per curiam was filed:

"The plaintiff's action against the defendant in the court below was based upon a written lease made by the plaintiff to one Pasquale Di Rollo, on April 14, 1915, for a term of five years, at a monthly rent of $37. The plaintiff succeeded in obtaining judgment for his claim upon the theory that the lessee, with the consent of the plaintiff, lessor, had assigned his in

terest in the lease to the defendant. From that judgment the defendant appeals to this court.

"The lease contained the usual covenants found in leases, and this provision:

"And it is further agreed between both par"And it is further agreed between both parties hereto that the party of the second part shall have the right to assign this lease to the Eagle Brewing Company, of Newark, N. J.' This clause was apparently put in the lease as an exception to the general provision of the lease that the party of the second part will not relet, etc., nor assign the lease, etc., without the written consent of the lessor. The lease had attached to it a sheet of paper which contained the following: 'I hereby consent to the within lease being assigned by the within named party of the second part, to the Eagle Brewing Company of Newark, N. J. Witnesseth: "[Signed] Pasquale Iarussi. "Pasquale Di Rollo.' "The real question presented is whether there was an assignment of the tenant's interest in the lease to the defendant company and accepted by it.

"The transaction relating to the making of the lease and the assignment thereof took place on April 14, 1915, and it appears that Di Rollo remained in possession of the leased premises from that time on and paid rent to the plaintiff up to November, 1917, and continued to live in the rear room of the same until March,

1918. There was no proof that the defendant had ever paid any rent for the premises to plaintiff, or had ever taken possession of the same or exercised any control over the same.

1.

(93 N. J. Law, 277) HIRSCH v. VERSCHUUR,

(Supreme Court of New Jersey. Sept. 29,

SALES

TO RESCIND.

1919.)

121-EVIDENCE OF ELECTION NOT

That the purchaser of a coat brings an action for breach of warranty or fraud in the sale, makes two payments on account, one two weeks and one a month after receiving the coat, and after wearing it, is cogent evidence of an election to keep the coat and to rely on the election to keep the coat and to rely on the action for damages for breach.

2. SALES 124-RETURN OF GOODS IN SAME

CONDITION ESSENTIAL TO RESCISSION.

where he has failed to return or offered to reA buyer of goods cannot rescind the sale, turn them in substantially as good condition as they were at time of purchase, in view of 4 Comp. St. 1910, p. 4664, § 69.

Appeal from District Court of Plainfield. Action by Syman Hirsch against Mrs. D. Verschuur. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Argued June term, 1919, before SWAYZE and PARKER, JJ.

W. S. Angleman, of Plainfield, for appellant.

Isaac P. Runyon, of Plainfield, for respondent.

SWAYZE, J. [1] We cannot attribute as much force as the plaintiff to the fact that the suit was originally brought for breach of warranty or fraud in the sale of the coat. That was cogent evidence of an election to keep the coat and rely on the action for dam

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ages for breach. So, also, was the evidence | ceedings upon which it was based, is limited to of two payments on account, one two weeks three years from the date of sale. and one a month after receiving the coat, Black, J., dissenting. and after wearing it. But we think the trial judge might properly find, as he did, "that defendant immediately upon discovering the fraud took the coat back and rescinded or offered to rescind by returning the coat, which was refused by the plaintiff." The question is whether this finding justifies the conclusion of law that there was a

terioration or injury to the goods may be due (Court of Errors and Appeals of New Jersey.

to the seller's breach of warranty, in which case the buyer may still rescind, but here,

too, there is in the present case an entire MARRIAGE failure of proof.

Since the finding of fact does not suffice to support the conclusion of law, the judgment must be reversed, but without costs, and the record remitted for a new trial.

Petition for annulment of a marriage by Hearsey Girvan against Georgina Griffin, In view of the Certiorari Act of 1903, § 14, alias Georgina Williams. Decree for defenda review of the sale for unpaid taxes, and pro-ant, and petitioner appeals. Affirmed.

(108 A.)

Samuel W. Boardman, Jr., of Newark, for gether. The petitioner has never contributed appellant.

BLACK, J. The petition in this case was filed in the Court of Chancery to have the marriage of the petitioner on August 16, 1917, declared null and void, on the ground that the pretended marriage was not a real marriage, having been made in jest, as a vacation frolic and without willingness or consent to anything more than the formal cere

mony.

anything towards the defendant's support, and she has never made any claim for support. The defendant did not appear at the trial to give testimony, nor was she represented. The witness to the ceremony, Ethel May Scholl, and the Rev. Walter Earle Ledden, the minister who performed the ceremony, detailed the circumstances attending the marriage ceremony. On this testimony, the learned Vice Chancellor who reviewed the case concurred with the master that the

proof shows that the parties were not married in jest. There is nothing in the surrounding circumstances to indicate jest. All there is of testimony is petitioner's statement, which amounts to nothing more than his present opinion as to the effect of what was done. There is nothing at all to indicate that the defendant regarded the ceremo

cur.

The case was heard in the first instance by a special master. He reported to the Chancellor that the petitioner was not entitled to the relief prayed for and recommended that the petition be dismissed. The master's report was reviewed by one of the Vice Chancellors. He approved the report and concurred with the master. The proof shows that the parties were not married in jest. Any as a joke, or that it was so regarded by short résumé of the testimony produced be- those who participated in it; the one witfore the master will show that the decree of ness present who was produced and gave evthe Court of Chancery should be affirmed. idence and the clergyman who performed the At the hearing the petitioner was sworn, al- ceremony did not think they were participatso Ethel May Scholl, a chum of the defend- ing in a joke. With this conclusion of the ant, one of the witnesses at the marriage master and learned Vice Chancellor we conceremony, Rev. Walter Earle Ledden, the See McClurg v. Terry, 21 N. J. Eq. 225. The Chancellor has recently held, in the clergyman who performed the ceremony, and Sarah E. Hindley, a witness to the marriage case of Bolmer v. Edsall, 106 Atl. 646, that license, with whom the defendant was board-corroboration is required in suits for nullity ing during the summer at Belmar. Two wit- of marriage, as well as in those for divorce nesses to the marriage ceremony, Mr. Chapin from the bonds of matrimony. In this case and Mr. Shattuch, were not produced as wit- there was no corroboration of the petitionnesses. The testimony of the other three er's testimony that the marriage ceremony witnesses produced at the hearing relate to was performed in jest. collateral facts only. The petitioner and the defendant knew each other since November, 1914. The defendant was staying at Belmar, N. J. The petitioner went there on Saturday, August 11, 1917. He sent the defendant a special delivery letter stating that he was coming. As soon as he arrived at Belmar he

The decree of the Court of Chancery is affirmed.

(93 N. J. Law, 461) FORTUNATO v. CICALESE et al. (No. 41.) (Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.)

CONCLUSIVE WHERE THERE IS SOME EVIDENCE
TO SUPPORT IT.

Where there was evidence of a waiver and

the trial judge charged that jury must find for tificate was waived, complaint that plaintiff faildefendants, unless production of architect's cered to produce architect's certificate is without merit.

2. CONTRACTS232(4)—WAIVER OF REQUIREMENT OF WRITTEN ORDER FOR EXTRA work.

went to her boarding house just to let her know that he had arrived. On Monday aft- 1. APPEAL AND ERROR 1001(1)-VERDICT ernoon, the 13th of August, the petitioner made plans to go home. They had lunch, and the petitioner said to the defendant, "I have to go back to work," and she said, "Why don't you take a vacation?" I said: "I can't take a vacation. The only way I could get a vacation is to take a fireman's job or get married." She said, "Why don't you get married?" And I said: "Who? Why don't you and I get married?" She said that is the way it first started. That night they took out a license to marry. On the following Thursday evening, August 16th, at 8:30, the marriage ceremony was performed by Rev. Walter Earle Ledden, a minister of the Methodist Episcopal Church at Belmar, N. J., in the presence of three witnesses brought by the parties to witness the ceremony. The petitioner and defendant have never had marital intercourse.

The complaint that the trial court allowed testimony as to extra work without a written order, contrary to the contract requirements, is without merit, where the judge properly charged that the question was, Did the contractor and the owners agree that extra work should be done, and did the owners agree to pay for it? 3. CONTRACTS 232(7)—REASONABLE COM

PENSATION FOR EXTRA WORK.

If there was an express contract to pay for They have never lived to- the extra work, but the amount was not fixed, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plaintiff contractor was entitled to a reasonable

sum.

4. TRIAL 253(7)—DIRECTION OF VERDICT IGNORING EVIDENCE.

(N. J.

(93 N. J. Law, 436)

SMITH V. BRUNSWICK LAUNDRY CO. (No. 86.)

Defendants' requested charge that, "If the (Court of Errors and Appeals of New Jersey.

plaintiff left the work incomplete and the omissions and departures cannot be remedied without disturbing the rest of the building, they must find a verdict for the defendants" could not properly be given, where it was open to the jury to find that plaintiff was entitled to be paid for the extra work.

Appeal from Supreme Court.

Suit by Gaetano Fortunato against Antonetta Cicalese and others. Judgment for plaintiff was affirmed by the Supreme Court, and defendants appeal. Affirmed.

On appeal from the Supreme Court, in which the following per curiam was filed: "This is a suit on a building contract. The plaintiff had judgment below. We consider only such grounds as present legal errors.

[1] "1. The appellants' complaint that the plaintiff failed to produce the architect's certificate for the final payment is without merit. The trial judge charged that they must find for the defendants unless the production of the certificate was waived. There was evidence of a waiver.

[2, 3] "2. The complaint that the court allowed testimony as to extra work without a written order, contrary to the requirements of the contract, is without merit. The judge properly charged that the question was: Did the contractor and the owners agree together that a certain bit of extra work should be done, and did the owners agree to pay for it? Headley v. Cavileer, 82 N. J. Law, 735, 82 Atl. 912. If there was an express contract to pay for the extra work, but the amount was not fixed, the plaintiff was entitled, as the judge charged, to a reasonable sum.

"3. There seems to have been no objection to the alleged explanation by the plaintiff's attorney why the height of the store ceiling was 9 feet instead of 10% feet. What he said does not appear. Apparently it was only by way of giving his explanation of the proved facts. It was permissible for the jury to find that the fault was that of the defendant.

If

[4] "4. The defendant requested a charge that, 'If the plaintiff left the work incomplete, and the omissions and departures cannot be remedied without disturbing the rest of the building, they must find a verdict for the defendants.' But this could not properly be charged. there were no other reason, it would be enough to say that it was open to the jury to find that the plaintiff was entitled to be paid for the extra work, and a verdict could not be directed. "The judgment is affirmed, with costs." Gaetano M. Belfatto, of Newark, for appellants.

Joseph J. Pallitta, of Newark, for respond

ent.

Nov. 17, 1919.)

(Syllabus by the Court.)

1. APPEAL AND ERROR 987(1)-APPELLATE DETERMINATION AS TO WEIGHT OF EVIDENCE AND EXCESSIVE VERDICT.

The Court of Errors and Appeals has no power to review or determine the weight of evidence, or consider whether the amount of the verdict is excessive. 2. APPEAL AND ERROR

261-TRIAL

131

(1)-CORRECT PRACTICE UPON IMPROPER REMARKS OF COUNSEL FOR PLAINTIFF.

Where the remarks of counsel for plaintiff in addressing the jury are improper, the cormonish counsel against making such remarks, rect practice is to ask the trial court to ador request the trial court to charge the jury to disregard them. A refusal of the court to interpose, where otherwise the right of the party would be prejudiced and an exception to the trial judge's refusal, lays the basis for a valid assignment of error, requiring a reversal of the judgment, where there is legal error. Blackman v. West Jersey, etc., R. R. Co., 68 N. J. Law, 1, 52 Atl. 370, and See v. Public Service Ry. Co., 82 N. J. Law, 144, 81 Atl. 745, approved and followed on this point.

3. APPEAL AND ERROR 969, 973-TRIAL
146, 159 REFUSAL TO WITHDRAW JUROR
OR GRANT NONSUIT FOR MISCONDUCT
COUNSEL.

OF

A refusal by the trial court to withdraw a juror or grant a nonsuit for improper remarks by counsel is discretionary on the part of the trial judge and cannot be reviewed on appeal.

Appeal from Circuit Court, Hudson County.

Action by Charles E. Smith, administrator, etc., against the Brunswick Laundry Company. Verdict for plaintiff, and defendant appeals. Affirmed.

William Hauser, of Bloomfield, for appel

lant.

Alex. Simpson, of Jersey City, for respondent.

BLACK, J. The defendant was sued in the Hudson circuit court to recover damages under the death act, for causing the death of Ethel Smith, a minor 32 years old, on the afternoon of September 23, 1918, on Romain avenue, in Jersey City. The trial resulted in a verdict for the plaintiff, child met her death by a backing of an automobile truck or closed electric delivery wagon upon her, owned by the defendant, and operated at the time by its servant.

The

PER CURIAM. The judgment under re- [1-3] There are four grounds of appeal, view will be affirmed, for the reasons set viz., the verdict is contrary to the evidence, forth in the opinion of the Supreme Court. it is contrary to the charge of the court, and

(91 N. J. Eq. 63)

LA COMBE v. HEADLEY et al.

(Court of Errors and Appeals of New Jersey. Nov. 17, 1919.)

232(8)-PUR

1. VENDOR AND PURCHASER
CHASER CHARGED WITH NOTICE OF RIGHTS OF
PERSON IN POSSESSION.

Though tax deed given complainant at a tax sale under Tax Adjustment Act 1898 was unrecorded when defendant purchased lots from grantee of heirs of prior owner, defendant was not a bona fide purchaser within Act Concerntained rights of complainant, whose occupancy dis-ing Conveyances, § 54; she not having ascerwas continuous, open, and notorious.

2. VENDOR AND PURCHASER 232(1)—DUTY

TO ASCERTAIN RIGHT OF PERSON IN POSSES-
SION.

which is in the possession of a person other
It is the duty of intending purchaser of land
than intending grantor to inquire of the occu-
pant and ascertain the rights under which he
holds; and, if he does not make such inquiry,
he is chargeable with notice of such facts as
inquiry would reveal.

Appeal from Court of Chancery.

Bill to quiet title by Auguste La Combe against Hilda H. Headley and another. Decree advised for complainant (104 Atl. 711), and defendants appeal. Affirmed.

(108 A.) the damages are excessive. These are not proper grounds of appeal. They are matters pertinent for a rule to show cause on an application for a new trial. This court has no power to review or determine the weight of evidence (Savino v. Goldberg, 92 N. J. Law, 617, 106 Atl. 815), or consider whether the amount of the verdict is excessive (Flanigan v. Guggenheim Smelting Co., 63 N. J. Law, 647, 44 Atl. 762). The only other ground of appeal is the jury was prejudiced against the defendant by the remarks of counsel for the plaintiff in his summing up to the jury. Turning to the record, it discloses that objectionable remarks were made by the plaintiff's counsel concerning the defendants' counsel's failure to produce a picture or photograph of the automobile truck or closed electric delivery wagon which was the cause of the child's death. The photograph, it was remarked, would show the size and kind of car and how high it was from the ground. "Mr. Hauser: Now, if your honor please, I wish to ask for a nonsuit and the withdrawal of a juror." The trial court refused it. The first was not error, and the latter was discretionary with the trial judge. This refusal by the trial judge, which was discretionary, is not a ground for reversal. The correct practice in such a situation is pointed out by Chief Justice Gummere in the case of Blackman v. West Jersey, etc., R. R. Co., 68 N. J. Law. 1, 4, 52 Atl. 370, in which he quotes at length from the case of Williams v. Brooklyn Elevated R. R. Co., 126 N. Y. 96, 26 N. E. 1048, from the New York Court of Appeals. The practice, there stated and commended, was restated with approval by Mr. Justice Kalisch in the case of See v. Public Service Ry. Co., 82 N. J. Law, 146, 81 Atl. 745. There it is stated counsel should have made a request to the court, either to admonish plaintiff's counsel, or to charge the jury to disregard the objectionable remarks. A failure so to do, by the trial court, and exception thereto, would lay the basis for a valid assignment of error. It is the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, is ground for legal error. There was, however, no refusal of the court to interpose in this case. The trial court did in fact, after refusing the above motion, admonish the plaintiff's counsel. This point was discussed in the case of State v. Terry, 91 N. J. Law, 543, 103 Atl. 238. See, also, Hahn v. Delaware, etc., R. R. Co., 105 Atl. 459, June term, 1919.

We may add, however, that while the remarks of counsel objected to were improper, they were not such as should cause a rever sal of the judgment.

The judgment will therefore be affirmed.

Harold W. Headley, of Newark, for appellants.

W. Eugene Turton, of Newark, for respondent.

GUMMERE, C. J. This was a bill to quiet title. In February, 1909, the complainant purchased two lots of land located in the town of Irvington, adjacent to one another and abutting upon property already owned by him, at a sale made by the town authorities under the Tax Adjustment Act of 1898 (Comp. Stat. p. 5251). These lots at the time of the tax sale were owned by the heirs at law of one Alfred Tichenor. The sale purported to convey the fee, and a deed for the premises was executed in due course by the tax collector of the town, and delivered to the complainant. This was not recorded.

In May, 1914, one William F. Headley purchased from the heirs of Alfred Tichenor all their right, title, and interest in and to the lands in question. This deed was duly recorded. In October of the same year Headley and his wife conveyed the premises to Hilda H. Headley, the defendant, and that deed was also recorded.

Hilda Headley claims to be a bona fide purchaser for value without notice of any right of the complainant in the premises, and asserts that the deed from the tax collector to the complainant is void as against her under the provisions of section 54 of the Act Concerning Conveyances (Comp. Stat. p. 1553).

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes