It is further claimed that the court erred in fixing the time contemplated by the indemnity against liability contract for the filling of the orders as the time for calculating the difference between the market and the contract prices instead of the time fixed or contemplated by the orders themselves for performance. This would be true if the time fixed by the orders was of their essence, and if it expired before the time fixed or contemplated by the contract and there was a difference in market price between the two dates. But where, as here, this is not the situation, but, on the contrary, the time contemplated by the orders as the time within which they should be filled is substantially the same as the time fixed by the contract as the time within which defendant should fill the orders, and the market price was the same during a period embracing both dates, the point is without substance.

having failed to perform his contract so to [ refuse applications for delayed instead of do, and in fact, if the defendant, is also li- prompt justice based upon grounds of a techable for the performance, as in the partner-nical rather than of a substantial nature. ship debts case, he would doubtless be entitled to go into a court of equity and obtain a decree requiring the application of the money recovered from him to the extinguishment of the debts in question. Loosemore v. Radford, 9 M. &. W. 657. But the point is that the recovery is not upon the liability insured against, but upon the contract of insurance, and the fact remains that, no matter whether the liability is or is not for what we call a fixed or determined amount, it is in fact a liability of the plaintiff to a third party-that is, to one not a party to the litigation-that is used to measure the damages for the breach of the contract to indemnify against it. Clearly, therefore, the jury in a suit for breach of the latter contract must pass upon and determine the amount of the liability of the plaintiff to this third party, because such liability has not in fact been previously judicially determined. This being the case, we can see no legal reason why such a jury may not just as well hear evidence establishing liability for failure to fill orders to manufacture and supply underwear and determining the amount of such liability, as to hear evidence establishing liability and determining the amount thereof for the payment of partnership debts. As to the amount of the liability it would be determined in the one case by ascertaining the difference by which the market price of the underwear at the time of breach exceeded the contract price, and in the other case by ascertaining the result of possibly a long series of debits and credits going to make up each partnership debt. The principle is the same in both cases, and we see no more difficulty in its practical application to the one case than to the other.

We think therefore that the learned trial judge applied the correct measure of damages in the case sub judice. Plaintiff having stipulated in his contract that his obligations should be performed by the defendant who should indemnify the plaintiff against liability for nonperformance, and defendant having failed to perform, the plaintiff upon proof of his liability is entitled to recover the amount which he will have to pay in order to perform himself or to pay what the law substitutes for performance in case of a breach, viz., damages; and it would be a miscarriage of justice to require him to wait, possibly a period of six years, until suits were brought against him and judgments recovered, before he could be placed in a position to do justice to those who held his obligations. Tardy justice is too often injustice under the best of circumstances, and, unless absolutely necessary in order to avoid vio

Coming now to appellant's further complaints that evidence was improperly admitted tending to show that goods manufactured from raw material supplied by North under the first contract were sold to new customers instead of being used to fill the old orders as required by the contract, that defendant had suffered loss on the old orders it did fill, that North was finally put to the expense of replevying his raw material stock from defendant's factory, that defendant's overhead expense was so heavy that the old orders could only be filled at a loss, that the old orders actually filled only amounted to 2 per cent. of the whole, and that the court refused to charge defendant's third and fifth requests relating respectively to opportunity for inspection and to unlawful demand, we find it impossible to say that there is anything before us as to any of these complaints requiring a reversal of the judgment in the foregoing case or in the case which was tried with it, wherein the corporation was plaintiff and North was defendant, and in which the jury also found in favor of North. In the latter case it was claimed that North had failed to perform his part of the contract to sell to the corporation the raw material for the filling of the old orders, and had thereby, inter alia, prevented the corporation from making large profits out of those old orders. The two cases were tried together without any separation at all, and these alleged errors are assigned as reasons for reversal in each case. Under these circumstances, unless we are in a position to say that the evidence should not have been admitted, or the requests to charge refused in either case, we cannot reverse either case because thereof. We cannot so say in the first case, because

On appeal from the Supreme Court in which the following per curiam was filed: "This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury.

(108 A.) (the one in which the corporation was defendant) with a reservation only of exceptions "wherein the jury was permitted to consider evidence and find a verdict on the alleged liability of the plaintiff under existing contracts with customers, without plaintiff establishing that he suffered damages or loss thereon or paid damages on such liability," and the Supreme Court in disposing of this rule said, "All objections argued, not so reserved, we find upon examination to be without merit." Of course, this finally disposed of everything in the first case not within the reservation, and it seems to us that all of the matters above enumerated fall within this description, viz., were in the first

case and were not included in the reserva-
tion. They are therefore not before us.
The judgment is affirmed.
BERGEN, J., dissents.

JOSEPH W. NORTH & SON, Inc., v.
NORTH. (No. 55.)

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

Appeal from Supreme Court.

Action by Joseph W. North & Son, Incorporated, against Herbert S. North, individually and as executor of Joseph W. North, deceased. From a decree for defendant in the Supreme Court, plaintiff appeals. Affirmed.

"Plaintiff, Stevens, and the defendants entered into a contract December 1, 1915, whereby the plaintiff agreed to furnish to the defendants able an immediate construction of a practical general plans and information necessary to enworking plant and process for the manufacture of carbolic acid; and if the defendants should determine to go ahead with the erection and construction of the plant, the plaintiff would complete detailed plans and information, and would supervise the actual construction and erection of the plant. This suit was brought to recover compensation for such services.

"The contract is somewhat involved and requires careful reading before settling upon the merits of the controversy here.

"The only ground of appeal requiring consideration is that regarding the charge of the trial judge. We conclude that the judge in his charge properly construed the contract, bearing in mind that it must be construed as a whole, and not with reference to isolated paragraphs alone. So considered, it seems clear that the construction put upon it by the judge was proper.

"The judgment will be affirmed, with costs."

William V. Rosenkrans, of Paterson, for appellants.

Raymond, Clancy, Marsh & Ellis, of Newark, for respondent.

PER CURIAM. The judgment under review will be affirmed, for the reasons set Alfred F. Skinner and Carl A. Feick, both forth in the opinion of the Supreme Court. of Newark, for appellant.

(Syllabus by the Court.)

1. PUBLIC SERVICE COMMISSIONS 35-CERTIORARI TO SET ASIDE RATES.

Where a public utility company increases its rates to take effect on a fixed date, and the . board of public utility commissioners, on hearing, modifies the rates without suspending them by any order, an order affirming the modified rates to take effect at the date fixed by the company will not be set aside on certiorari.

2. CONSTITUTIONAL LAW 154(2) - ELECTRICITY 11-PRIVATE CONTRACTS AS TO RATES SUBORDINATE TO PUBLIC WELFARE.

Private contracts as to rates to be charged for furnishing electric power must yield to the public welfare, and the state may fix a just and reasonable rate without regard to that reserved

in the contract.

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

Separate writs of certiorari by the Edison [plication for a rehearing was made and Storage Battery Company, Crucible Steel granted; that the board approved the modiCompany of America, Snead & Company fied schedule of rates to apply to February Iron Works, Independent Lamp & Wire Company, and Bound-Brook Oil-Less Bearing Company, to review orders of the Board of Public Utility Commissioners and others, made in each case. Writs dismissed.

Argued June term, 1919, before TRENCHARD, BERGEN, and KALISCH, JJ.

McCarter & English, of Newark, for Edison Storage Battery Co.

Treacy & Milton, of Jersey City, for Cruci

ble Steel Co. of America.

sales and made its order to that effect. We are of the opinion that the written application for a rehearing was in substance a complaint against the rates recommended by the board, and adopted by the electric company, for, while the board indicated that it would approve, it had not made any order, and by its subsequent hearing treated the matter as one not finally determined, and that therefore the complainants had a standing which permitted them to object. We are also of opinion that the board had the right to order the modified rates to be effective as of the date

Clarence E. Case, of Somerville, for Snead & Co. Iron Works, Bound-Brook Oil-Less Bear-fixed by the company which were never susing Co., and Independent Lamp & Wire Co. L. Edward Herrman, of Jersey City, for Board of Utility Com'rs.

Frank Bergen, of Newark, for Public Serv

ice Electric Co.

pended by any order of the board. This result leaves but two questions to be considered: First, should the writs be dismissed, as urged by defendants, because no application for there allowance was made within 30 days from the date the order became effective? We are of opinion that this motion has no merit. The only order under review is that of July 16, 1918; in fact, there is no other order mentioned in the writs, and these were all allowed within 30 days after the date of the making of the order. Second, the prosecutors show that they have contracts with the electric company covering a period later than February, 1918, which fixes the rates during the terms of their respective contracts at a lower sum than that fixed by the order complained of, which they claim im

BERGEN, J. In each of the five cases above set out, a writ of certiorari was allowed to review an order of the board of public utility commissioners, dated July 16, 1918, granting to the Public Service Electric Company the right to increase its rate of charges for electric energy furnished by it to users of electric current for mechanical power to be applied to such energy supplied after February 1, 1918. The record shows that the electric company extensively published its intention to make an additional charge for all electricity served for power commenc-pairs the obligation of their contracts in vioing with sales during the month of February, 1918. Under the statute this became effective February 1, 1918, subject to the power of the board of public utility commissioners to determine whether the proposed change of rates is just and reasonable, but the board is

not compelled to act except on the written complaint of a properly interested person. O'Brien v. Board of Public Utility Commissioners, 105 Atl. 132.

lation of their constitutional rights. But this question has been determined contrary to the prosecutors' contention by the Supreme Court of the United States in Union Dry Goods Co. v. Georgia P. S. Corporation, 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309,

where the identical objection was raised. There the public service corporation, acting under the orders of a state commission haying power to regulate rates for the service of electricity, adopted rates fixed by the state commission which were higher than those contracted for by the respective parties. Whether the utility commissioners are required to determine private rights, arising on contracts, in fixing rates for the public good, and to discriminate between those of the public who have contracts and those who have not, and thus make a discrimination according to agreements between citizens, or whether their orders should be general as to all who are within the class affected, we are not required to pass on in this case, although inclined to the opinion that such orders should be general, leaving the contracting parties to settle their rights in an action, raising that question, in which they are parties, and not by certiorari.

[1, 2] After the rates were changed, the electric company presented to the board its petition for approval, which the board refused but gave leave to the company to file new tariffs providing for a war surcharge of 25 per cent., and a coal clause, to go into effect with the February sales, which the board said it would approve. This the company did, and the board filed its report approving the new tariffs. No order of suspension was made, but immediately after the report an application for a rehearing was made, and, after a lengthy discussion, the board adhered to its former finding, and made the order complained of. A short analysis of the proceeding is that the electric company gave notice of an increase of rates; that it applied to have the commission to approve the rates; that the board modified the rates, stating what it would approve; that a schedule of The record sustains the finding of the

(108 A.)

sonable, and we being of opinion that the order properly relates to the initial proceeding changing the rates, and that private contracts must give way to the public welfare when they conflict, if that question can be raised in these proceedings, the writs in all the cases will be dismissed, with costs.

(93 N. J. Law, 305)

and the carrying on of its business thereby prevented, to its great injury; and that the defendant knew that the water from the stream was being used by the city for the purpose of furnishing it to its inhabitants for domestic and other uses. There is no averment that either of the parties, or the city, are riparian owners other than that defendant carried on its business "at or near" the Rahway river; but assuming, as most beneficial to the pleader, that both defendant

EGYPTIAN LACQUER MFG. CO. v. CHEMI- and the city are riparian owners, it is clear

CAL CO. OF AMERICA.

(Supreme Court of New Jersey. Oct. 29, 1919.)

(Syllabus by the Court.)

WATERS AND WATER COURSES 209-SUFFI-
CIENCY OF COMPLAINT IN NONRIPARIAN OWN-
ER'S ACTION FOR POLLUTION OF STREAM.

that the plaintiff is not, and it is equally plain that the complaint avers no contractual relation between the plaintiff and the defendant, or between the defendant and the city, as to the supply of water. This presents the question whether, granting the right of the city to maintain an action against defendant because of the pollution, the plaintiff has such right, not being a riparian owner:

I think this case is governed by the principle laid down by the court of Errors and Appeals in Baum v. Somerville Water Co., 84 N. J. Law, 611, 87 Atl. 140, 46 L. R. A. (N. S.) 966, which was a suit by an owner of land, who was furnished water for fire purposes by the municipality, against the water company, and it was urged that the agreement of the water company to furnish water to the municipality, which the latter delivered to the plaintiff, imposed a duty on the com

In a suit against a riparian owner for injuries resulting from the alleged pollution of a flowing stream, the plaintiff set out in its complaint that an incorporated city had the legal right to take water from the stream and furnish it to its citizens; that plaintiff operated a manufacturing plant in the city requiring a large quantity of water which the city furnished; that defendant, a riparian owner above the intake of the city, emptied into the stream refuse from its factory, which corrupted the stream so that the water supplied by the city was filled with polluted matter inju-pany to furnish sufficient water, under proprious to the chemical products of the plaintiff, resulting in serious damage to it. Held, that the complaint did not set out a cause of action in favor of the plaintiff, a nonriparian owner, against the defendant for the alleged pollution.

er pressure, for use in extinguishing fires; but the appellate court held that in the absence of a contract with the plaintiff no such duty existed, and I fail to see any distinction between quantity and quality furnished, under similar conditions. We may assume in this case that a liability existed in favor of the city as a lower riparian owner for the pollution of the stream by a higher riparian

owner; but there the obligation ceased, for the right of action would not pass to a nonriparian owner merely because the latter had

John K. English, of Elizabeth, for the mo- contracted with the city for the furnishing tion.

Abe J. David, of Elizabeth, opposed.

of the water, for his right depends upon his contract with the city which might provide for the very character of water which was supplied. The liability of the defendant, if any, rests upon his violation of the legal right of a lower riparian owner, unless it had contracted with the plaintiff. There is nothing in this complaint which avers that there was any contract between the defendant and either the city or the plaintiff. This is not a case of an indictment for creating or main

BERGEN, J. This is a motion to strike out a complaint and takes the place of a demurrer. The complaint sets out that the city of Rahway is authorized by law to take such portion of the water of the Rahway river as may be required to furnish the inhabitants of the city with wholesome water for domestic and other uses; that plaintiff has a factory in the city for the manufacture of chem-taining a public nuisance, or for the violation ical products requiring a large quantity of water which was supplied to it by the city; that defendant, having a factory located at or near the river, emptied therein refuse from its factory above the intake of the city which so polluted the water furnished by the city that the plaintiff was injured in its use,

of any statute against the pollution of a running stream, but a suit for damages resulting from a special injury based upon the nonperformance of a duty which the plaintiff claims was due to it from the defendant, a claim which the pleading does not sustair by any legal averment. It does not aver the

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