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agency may not be established by proof of that kind.

But it is contended that it appeared by the proof that at the time when Joseph gave his evidence of the fact of agency the defendant was in court, seated a short distance from the witness, and could have heard and did not deny the statement, and hence the evidence must be given such force as is usually given to statements made in the presence of a person which call for some denial, or otherwise they may be taken as a tacit admission of their truth. Whether such force is to be given to statements so made is in all cases subject to two conditions at least: First, whether the party heard the statement and comprehended it; and, second, whether he was in such a situation as called upon him to make a reply or denial. Commonwealth v. Kenney, 12 Metc. (Mass.) 235, 46 Am. Dec. 672; Donnelly v. State, 26 N. J. Law, 604, 632; Roesel v. State, 62 N. J. Law, 235, 41 Atl. 408. In this case the statement as to the agency was made on the witness stand in court, and, conceding that the defendant was within hearing distance and heard, still it is clear that she was not in a situation where she could make reply or denial. The rule in such a case is stated by Chief Justice Shaw in Commonwealth v. Kenney, supra, in this way: "If [the statement] be made in the course of any judicial hearing, he could not interfere and deny the statement. It would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law."

The evidence admitted was illegal, and, as, without it, the plaintiff failed to make out a case, the judgment of the district court must be reversed, and a new trial granted.

(75 N. J. L. 97)

COLLOTY v. SCHUMAN. (Supreme Court of New Jersey. June 10, 1907.) 1. PRINCIPAL AND AGENT-PROOF OF AGENCY -ADMISSIBILITY-DECLARATIONS BY AGENT.

In a suit by a real estate broker for commissions on the rental of the defendant's hotel property, it appeared at the trial that the agreement for the commissions was made by plaintiff not with the defendant, who was owner of the property, but with her son; that plaintiff secured a tenant and made a lease to her, which was signed not by the defendant, but by her son as the lessor, without any reference to the character in which he signed, whether as agent or otherwise. In the effort to prove that the agreement for commissions was made by the son as agent for his mother, he was called as a witness by the plaintiff, and was permitted to testify, over objection, that in signing the lease he represented his mother. Upon review, held the evidence was properly admitted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 40.] 2. BROKERS-REAL ESTATE-ACTION FOR COM

MISSION-EVIDENCE-SUFFICIENCY.

It further appearing by the evidence that prior to the rental defendant and her son both at different times visited the office of plaintiff, and that the defendant gave instructions to the plaintiff to rent the property upon which he act

ed, and that part payment of the commissions had been made by check received from defendant, further held, that motions to nonsuit and direct a verdict for defendant were properly denied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 128, 129.]

(Syllabus by the Court.)

Certiorari to District Court of Atlantic

City.

Certiorari by Kate Schuman against Eugene M. Colloty, to review a judgment of the district court of Atlantic City. Judgment affirmed.

Argued February term, 1907, before FORT, PITNEY, and HENDRICKSON, JJ.

Thompson & Cole, for plaintiff. Eli H. Chandler, for defendant.

HENDRICKSON, J. This writ brings up for review a judgment of the district court of Atlantic City entered upon a verdict. The suit was brought to recover commissions claimed by Mr. Colloty, the plaintiff, to be due him as a real estate broker upon the rental of the Hotel Wellington, owned by Mrs. Schuman, the defendant, and located in that city. The alleged errors arise out of the refusal of the trial judge to nonsuit and to direct a verdict for the defendant and upon the admission of evidence. In support of the first ground, it is contended that there was no legal evidence to support the plaintiff's demand, which was based upon an alleged contract or agreement between the parties for the payment of $150 for procuring a tenant for the premises named. The case showed that a parol agreement to pay the commission named for the rental was made between Edward Schuman, a son of the defendant, and the plaintiff. The plaintiff's contention was and is that the son entered into the agreement as agent for his mother, who owned the property, and it follows that the plaintiff's right to recover depends upon proof of such agency. The judge submitted this question to the jury, and it rendered a verdict for the amount of the demand.

In obedience to a rule of court, the judge has certified that there was evidence to go to the jury from which they could find liability, and has certified therewith the evidence taken at the trial. The case also shows that the plaintiff, in support of his contention, offered in evidence the lease he made of the premises to a Mrs. Coleman, which was made in the name of the son as lessor, and signed by him without any reference to the character in which he signed, whether as agent or otherwise. Plaintiff then called as a witness the son, who was permitted to testify over objection that, in signing the lease, he was representing Mrs. Schuman, the defendant. The grounds of objection were that the evidence was irrelevant, and that the agency could not be proven by the agent himself. And it is the admission of this testimony which defendant assigns as the second ground for reversal. We will deal with this ground for

error now before further discussing the other ground alleged. The evidence, if otherwise legal, was certainly relevant to the question of agency. We think the evidence was also admissible upon well-settled rules. The principle involved must not be confused with that which applies when the admissions or declarations of an agent are offered in proof of his agency. The rule in support, of the admission of the evidence objected to will be found discussed in 2 Wharton L. of Ev. 949952, where the learned author says: "The distinction to be kept in mind is that, while parol evidence cannot be received to discharge a party, it may be received when its effect is to show that another party, namely, the principal, is also bound." See, also, Id., 920. And in Rice v. Gove, 22 Pick. (Mass.) 158-160, 33 Am. Dec. 724, Justice Dewey, speaking of this principle as found in the books and cases, says: "It seems to be broad enough to support the position that, in an action against this principal, the authority of the agent to act may be proved by the agent himself." See, also, 1 Am. & Eng. Ency. of L. (2d Ed.) 969. The evidence was properly admitted.

In addition to this proof, it also appeared that the plaintiff testified to his having received authority to let the premises from defendant and her son; that they both came to his office at different times; that, when Mrs. Schuman came, she instructed him to rent the property; that he, in pursuance of those instructions, rented the property at $3,000 per year; that of his commissions of $150 there had been paid to him $42.50 in the form of a check which he received by letter from Mrs. Schuman. The defendant produced a letter from E. M. Colloty & Co. on crossexamination of plaintiff, and had him identify it as written by his authority, which defendant offered in evidence. The letter read: "Mrs. Schuman. Dear Madam: Please mail check of balance of commissions on rental of your property on South Virginia Avenue. We only ask commission on what rent you collect, which leaves a balance due of $82.50." It appears that no answer was made to the letter, and no denial of the facts therein stated was attempted at the trial. Mrs. Schuman did not attend and testify.

We think, under the circumstances, there was no error in the refusal to nonsuit or to . direct a verdict for the defendant, and the result is that the judgment below must be affirmed, with costs.

(72 N. J. Eq. 825)

bonded indebtedness, it may, by a majority vote of its board of directors with the consent of a majority of the stockholders holding 60 per cent. of the capital stock, increase the bonded indebtedness to an amount not exceeding twothirds of the amount of the capital stock, merely conferred additional powers on such corporations as were not previously allowed to issue bonds to the amount fixed by the act, and did not restrict the privileges of those that already possessed the power to create bonded indebtedness to a greater amount than that named in the act.

Bill for an injunction by Charles T. Thatcher against Consumers' Gas & Fuel Company. Preliminary injunction denied.

Defendant is a gas company of Atlantic City, N. J., incorporated under the general gas act of April 21, 1876 (P. L. 1876, p. 309; Gen. St. p. 1608), and is about to increase its bonded indebtedness to an amount exceeding two-thirds of the amount of its capital stock. Complainant is a stockholder, and seeks to enjoin the proposed corporate action, upon the ground that the act of March 27, 1878 (P. L. 1878, p. 173; Gen. St. p. 1613, § 33), restricts the bonded indebtedness of gas companies to two-thirds of the amount of their capital stock. The act of March 27, 1878, is as follows:

"An act to enable gaslight companies, incorporated under the laws of this state, to increase their bonded indebtedness. "Approved March 27, 1878.

"Section 1. That whenever it may be necessary for any gaslight company, incorporated under the laws of this state, to increase their bonded indebtedness, for the purpose of increasing their business or for any other purpose, then and in that case the said corporation, by a majority vote of its board of directors, after having obtained the consent of a majority of the stockholders representing at least sixty (60) per cent. of the capital stock, be and they are hereby authorized to increase said bonded indebtedness to any amount not exceeding two-thirds of the amount of the capital stock of said company, the said increase as aforesaid to be governed by the law and pursued under the mode directed by the act of incorporation of such gaslight company."

Thompson & Cole, for complainant. Bourgeois & Sooy and C. L. Corbin, for defendant.

LEAMING, V. C. (after stating the facts). The only question here involved is whether or not the act of March 27, 1878 (P. L. 1878, p. 173; Gen. St. p. 1613), above quoted, operates to render it unlawful for a gas company which is incorporated under what is known as the general gas company act (Gen. St. p. May 1, 1608) to issue bonds to an amount in excess of two-thirds of the amount of its capital stock.

THATCHER v. CONSUMERS' GAS & FUEL CO.

(Court of Chancery of New Jersey.

1907.)

1. GAS-CORPORATIONS-INCREASING BONDED

DEBT-STATUTES.

Act March 27, 1878 (Gen. St. p. 1613, § 33), providing that, whenever it may be necessary for any gaslight company to increase its

A brief statement of the condition of the law at the time the act now in question was enacted would seem to be essential to a per

fect understanding of the legislative purpose in its enactment.

The general act for the formation of gas companies was passed at the first session of the Legislature after the constitutional amendment became operative which prevented special legislation conferring corporate powers. That act contains no provision touching the right of corporations organized under it to incur debts or to issue bonds or other evidences of indebtedness. In the absence of such provision, the right existed as an implied power. Lucas v. Pitney, 27 N. J. Law, 221, 228; Fifth Ward Savings Bank v. First Nat. Bank, 48 N. J. Law, 513, 523, 7 Atl. 318; 4 Thompson on Corp. § 5697; 5 Id. 6050, 6051. The right to execute a mortgage which should include corporate franchises in its lien could not exist as an implied power. That right existed in virtue of the general corporation act which provided "that every corporation, as such, shall be deemed to have power to mortgage any such real or personal estate with their franchises." In 1891, and again in 1897 and 1902, the Legislature passed supplements to the general gas act authorizing gas companies formed under that act to execute mortgages on their real and personal property, including their franchises. P. L. 1891, p. 271; P. L. 1897, p. 202; P. L. 1902, p. 277. These supplements were, I think, wholly unnecessary.

* * *

The act now in question was enacted two years after the general gas act, but not as a supplement to it. At that time there existed in this state a great number of gas companies incorporated by special legislative acts. An examination of these special acts will disclose that a great number of them contain provisions authorizing money to be borrowed, and bonds and other assurances to be issued therefor to an amount not exceeding one-half of the amount of the capital stock. Others contain similar express powers to the amount of two-thirds of the capital stock; others contain provisions for borrowing money and issuing securities without any restriction as to amount; and others contain no provisions touching the subject of indebtedness.

With this general view of the condition of legislation at the time, the legislative purpose in the passage of the act in question seems apparent. The act is, by its title, an enabling act. It is "to enable gaslight companies, incorporated under the laws of this state, to increase their bonded indebtedness." The provisions of the act enabling the increase of bonded indebtedness necessarily assume in the corporations to be affected by it a pre-existing but restricted power to create a bonded indebtedness. This clearly negatives any possible legislative purpose to apply the operation of the act to corporations already possessing the powers without restriction, and therefore excludes from any rational legislative intent such corporations as already possessed the power to create

bonded indebtedness to a greater amount than that named in the act. I think it clear, therefore, that the act can only be regarded as an act conferring additional powers on such corporations as were previously restricted in the particulars referred to.

A preliminary injunction will be denied.

(72 N. J. Eq. 831)

CURTICE BROS. CO. v. CATTS et al. (Court of Chancery of New Jersey. May 4, 1907.) SPECIFIC PERFORMANCE-CONTRACT FOR SALE OF PERSONALTY.

Where no adequate remedy at law exists, specific performance of a contract by defendants will be decreed on their refusal to sell tomatoes grown on certain land as agreed where it leaves the company helpless, except to whatever extent an uncertain market may supply the deficiency.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 199.]

Bill by the Curtice Bros. Company against James E. Catts and others. Decree advised for complainant.

Complainant is engaged in the business of canning tomatoes, and seeks the specific performance of a contract wherein defendant agreed to sell to complainant the entire product of certain land planted with tomatoes. Defendant contests the power of this court to grant equitable relief.

J. W. Acton, for complainant. W. T. Hilliard, for defendants.

LEAMING, V. C. The fundamental principles which guide a court of equity in decreeing the specific performance of contracts are essentially the same whether the contracts relate to realty or to personalty. By reason of the fact that damages for the breach of a contract for the sale of personalty are, in most cases, easily ascertainable and recoverable at law, courts of equity in such cases withhold equitable relief. Touching contracts for the sale of land, the reverse is the case. But no inherent difference between real estate and personal property controls the exercise of the jurisdiction. Where no adequate remedy at law exists, specific performance of a contract touching the sale of personal property will be decreed with the same freedom as in the case of a contract for the sale of land. Prof. Pomeroy, in referring to the distinction, says: "In applying these principles, taking into account the discretionary nature of the jurisdiction an agreement for the sale of land is prima facie presumed to come within their operation, so as to be subject to specific performance, but a contrary presumption exists in regard to agreements concerning chattels." Pomeroy on Contracts, Specific Performance, § 11.

Judge Story urges that there is no reasonable objection to allowing the party who is injured by the breach of any contract for the sale of chattels to have an election either to

less, except to whatever extent an uncertain market may perchance supply the deficiency. The condition which arises from the breach of the contracts is not merely a question of the factory being compelled to pay a higher price for the product. Losses sustained in that manner could, with some degree of accuracy, be estimated. The condition which occasions the irreparable injury by reason of the breaches of the contracts is the inability to procure at any price at the time needed and of the quality needed, the necessary tomatoes to insure the successful operation of the plant. If it should be assumed as a fact that upon the breach of contracts of this nature other tomatoes of like quality and quantity could be procured in the open market without serious interference with the economic arrangements of the plant, a court of equity would hesitate to assume to interfere; but the very existence of such contracts proclaims their necessity to the economic management of the factory. The aspect of the situation bears no resemblance to that of an ordinary contract for the sale of merchandise in the course of an ordinary business. The business and its needs are extraordinary in that the maintenance of all of the conditions prearranged to secure the pack are a necessity to insure the successful operation of the plant. The breach of the contract by one planter differs but in degree from a breach by all.

take damages at law or to have a specific | with their contracts leaves the factory helpperformance in equity. 2 Story's Eq. Juris. (13th Ed.) § 717a. While it is probable that the development of this branch of equitable remedies is decidedly toward the logical solution suggested by Judge Story, it is entirely clear that his view cannot at this time be freely adopted without violence to what has long been regarded as accepted principles controlling the discretion of a court of equity in this class of cases. The United States Supreme Court has probably most nearly approached the view suggested by Judge Story. In Mechanics' Bank of Alexandria v. Sexton, 1 Pet. (U. S.) 229, 305, 7 L. Ed. 152, Mr. Justice Thompson, delivering the opinion of that court, says: "But, notwithstanding this distinction between personal contracts for goods and contracts for lands is to be found laid down in the books, as a general rule; yet there are many cases to be found where specific performance of contracts, relating to personalty, have been enforced in chancery; and courts will only view with greater niceity contracts of this description than such as relate to land." See, also, Barr v. Lapoley, 1 Wheat. (U. S.) 151, 4 L. Ed. 58. In our own state contracts for the sale of chattels have been frequently enforced and the inadequacy of the remedy at law, based on the characteristic features of the contract or peculiar situation and needs of the parties, have been the principal grounds of relief. Furman v. Clark, 11 N. J. Eq. 306; Cutting v. Dana, 25 N. J. Eq. 265, 271; Rothholz v. Schwartz, 46 N. J. Eq. 477, 481, 19 Atl. 312; Gannon v. Toole (N. J. Ch.) 32 Atl. 702; Hurd v. Groch (N. J. Ch.) 51 Atl. 278, Duffy v. Kelly, 55 N. J. Eq. 627, 629, 37 Atl. 597; Law v. Smith, 59 Atl. 327, 68 N. J. Eq. 81.

I think it clear that the present case falls well within the principles defined by the cases already cited from our own state. Complainants' factory has a capacity of about 1,000,000 cans of tomatoes. The season for packing lasts about six weeks. The preparations made for this six weeks of active work must be carried out in all features to enable the business to succeed. These preparations are primarily based upon the capacity of the plant., Cans and other necessary equipments, including labor, must be provided and secured in advance with reference to the capacity of the plant during the packing period. With this known capacity and an estimated average yield of tomatoes per acre the acreage of land necessary to supply the plant is calculated. To that end, the contract now in question was made, with other like contracts, covering a sufficient acreage to insure the essential pack. It seems immaterial whether the entire acreage is contracted for to insure the full pack, or whether a more limited acreage is contracted for and an estimated available open market depended upon for the balance of the pack. In either case a refusal of the parties who contract to supply a given acreage to comply

The objection that to specifically perform the contract personal services are required will not divest the court of its powers to preserve the benefits of the contract. Defendant may be restrained from selling the crop to others, and, if necessary, a receiver can be appointed to harvest the crop.

A decree may be advised pursuant to the prayer of the bill.

By reason of the manner in which the facts on which this opinion is based were stipulated, no costs will be taxed.

(75 N. J. L. 80) CENTRAL R. CO. et al. v. BOROUGH OF ATLANTIC HIGHLANDS. (Supreme Court of New Jersey. June 10, 1907.) TAXATION-JURISDICTION OF BOROUGH.

A borough a boundary of which is highwater mark of a bay has no power to tax land and piers thereon outside high-water mark.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 427, 431.]

Certiorari by the Central Railroad Company and others against the borough of Atlantic Highlands to review an assessment for taxes. Tax set aside.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

George Holmes and Wm. A. Barkalow, for prosecutors. Charles R. Snyder, for defend

ant.

FORT, J. The borough of Atlantic Highlands was incorporated under the act of 1891 (P. L. 1891, p. 280). This act provided for a petition being presented to the court of common pleas containing a description of the proposed borough, and for an election by the people. The petition was required to recite the boundary lines of the proposed borough, and, if the election was favorable, the borough was established. Atlantic Highlands was incorporated under this act through a favorable vote of the people.

By the agreed facts in this case it is admitted that the boundaries as established in 1891, by petition as aforesaid, "at a stake standing at high-water mark on the shore of Sandy Hook Bay facing the easterly line of lands of the Atlantic Highlands Association at the point or place of the bluff known as Point Look Out, and running thence westerly along and following the line of the shore of the stream at present known as Wagner's creek." Then the other courses and distances are recited, returning in a final course to the place of beginning. It is quite evident from this description that the northerly boundary line of the borough of Atlantic Highlands is to high-water mark of Sandy Hook Bay.

The writ in this case brings up an assessment for taxes by the borough against the prosecutors for the pier and land owned by the Navesink Railroad Company levied in 1905. It is admitted that the land taxed lies outside of high-water mark, running from high-water mark for a distance of about 1600 feet into the bay, and that the property consists of piers, etc., erected upon said land; the whole being taxed as real estate. We think this assessment must be set aside. The borough has no power to tax outside of its corporate limits. A municipality's right of taxation is limited to property within its territory. State v. Hull, 25 N. J. Law, 561; 1 Desty on Taxation, p. 488; Ft. Smith Bridge Co. v. Hawkins, 16 S. W. 565, 54 Ark. 509, 12 L. R. A. 487; Pacific Sheet Metal Works v. Roeder, 26 Wash. 183, 66 Pac. 428.

By the statute of 1891 the borough might be erected out of the township, and such was the case here. The township of which this borough previously formed a part was the township of Middletown, in the county of Monmouth. The boundary line of the county of Monmouth ran to a point outside of Sandy Hook to the center of Raritan Bay to the Middlesex county line, and is coextensive with the boundary line between the state of New Jersey and the state of New York at this point, and the boundary lines of Middletown township were coextensive at this line with those of the county of Monmouth. The land which is taken out of a township for the creation of a borough, of course, leaves in the township all not taken, and we think that the land here taxed by the defendant is only taxable by the township of Middletown.

In this case the question of accretions and the extension of the shore on high-water line by alluvial deposits, or by filling in by the proprietors, is not before us, and hence does not have to be passed upon.

The tax must therefore be set aside.

(72 N J. Eq. 665)

SCHMITT v. TRAPHAGEN. (Court of Chancery of New Jersey. May 9, 1907.)

EQUITY-ISSUES SUBMITTED FOR TRIAL AT LAW-NEW TRIAL.

In a suit to quiet title, a motion for a new trial of an issue submitted for trial at law will be denied by the Court of Chancery without examining into the merits of the decision, since the conclusion of the court at law is appealable.

Bill to quiet title by Joseph Schmitt against Henry Traphagen. Heard on motion for new trial of an issue submitted to the court at law for trial. Denied.

Russ & Heppenheimer and M. T. Rosenberg, for complainant. Collins & Corbin and Augustus A. Rich, for defendant.

GARRISON, V. C. This is a suit under the act to quiet title, and is a motion in such suit for a new trial of an issue directed by this court to be tried at law in accordance with the provisions of the statute.

It appears from the state of the case submitted to this court that at the trial in the Supreme Court the justice of the Supreme Court presiding thereat conceived that the sole question was one of law, and therefore directed a verdict in favor of Schmitt upon the issues tried before him. I have not myself examined the question which was passed upon at the trial in the Supreme Court, and, for the reason which I am about to state, the question, if it was one of legal title, was eminently one to be passed upon by the courts of law. It was conceived to be such a question by the eminent jurist presiding. Any independent investigation that I could make would result either in concurring in his judgment, or in disagreeing with it, and, in the latter event, if I granted a new trial, the justice of the court sitting at such new trial would probably consider that he was bound by the same view of the law taken by the justice of the Supreme Court sitting at the first trial. It appears to me that the best solution of this question is to have an appeal taken as promptly as possible to the court of ultimate decision, and this can be as well done from the judgment directed by the justice of the Supreme Court as from any judgment upon the same question emanating from this court.

I have therefore determined to adopt the view of the law enunciated by Mr. Justice Dixon at the trial as my view, and to refuse a new trial.

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