ABATEMENT-See PARTIES, 3, 4, 5.
ACCOUNT-1. Where a receiver makes up an account under a special
direction which necessarily includes payments made by the insolvent
corporation before his appointment, and enters in his account entries
of payments appearing on the corporation's ledger for which he can
produce no vouchers, the fact that vouchers had been furnished
originally may be established by the testimony of one of the officers
of the company. JOHNSON v. JOHNSON RAILROAD SIGNAL CO............ 79
Where a contract is made between a patentee and a company
by which the company is to prosecute all claims for infringement on
the patent or for the royalties thereon, and out of the proceeds of any
suit for damages or royalty to pay costs and attorney's fees incurred
which were not taxable against the defendant, and pay the balance to
the patentee, the costs and attorney's fees of a suit begun in equity
for the infringement of the patent, which was decided adversely on
the ground that the article was manufactured by the defendant upon
a proper license by the patentee, may properly be deducted from the
amount realized in a subsequent action at law between the receiver
of the company and the same defendant to collect royalties. Id...... 79
Where a patentee of a railroad signal sold his patent to a com-.
pany, and was to receive a royalty on all signals sold by the company,
and he claimed under his contract the same royalty on signals subse-
quently manufactured by another company previously licensed by
him, which royalty was collected by his assignee, the amount which
he claims must bear its proportionate share of the expenses of col-
lection. Id........................
An attorney received a note secured by a void mortgage from
his client for services rendered in a suit, and receipted for it with the
condition that it should be in full payment when paid — Held, that his
lien on the judgment was not thereby lost. Id.
5. The fact that an executor is entitled to the estate of the testa-
tor for his life does not excuse failure to ascertain what the estate
amounts to through an accounting that will fix the charges against
him and allowances to him, and thus settle between all parties in in-
terest just what corpus the life tenant is to be responsible for MAX-
WELL v. MCCREERY.......
The treasurer of a company, who, with the company's consent,
deposits its funds in bank to his credit as treasurer, is entitled to al-
lowance for so much of the deposit as was lost by the failure of the
bank, in accounting with the company. LAUREL SPRINGS LAND CO.
v. FOUGERAY.........................
The treasurer of a company is not chargeable with interest on
the funds of the company in his hands, unless it be shown that he
used them for his own purposes, or that he used them or ought to
have used them in such a way as to earn interest Id
When, on appeal respecting an account, a charge complained of
by the appellant is struck out, credits which are so connected with
the charge as to require adjustment with it must likewise be consid-
ered, although they are not made the subject of direct appeal. Id... 318
A tenant in common, who collected rents of land of all the co-
tenants, and a widow owning a dower interest, should, in accounting
with the co-tenants for lands, be credited with one-third of the rents
which she paid to the widow. SWITZER v. SWITZER...........
See RENTS.
AGREEMENT-1. An abutting owner in a city, who is liable to pay
a part of the expense of improving the avenue on which his lot
fronts, is entitled to the beneficial performance of an agreement made
between the city and a contractor for the improvement of the avenue;
and where the city authorities accept an imperfect or fraudulent per-
formance of the contract such abutting owner has a standing in equity
to ask a restraint against the payment of the contract price by the
city until the contract be performed or the contractor be obliged to
recover the price at law. MCCARTAN v. TRENTON......
571
A slight variance in the performance from the precise terms of
the contract, which does not materially or injuriously change the
character of the improvement, but rather betters it without increased
cost, and which was made in good faith with the previous approval
of the proper authorities of the city, is not a ground upon which a
court of equity will restrain the payment of the contract price. Id... 571
See CONSIDERATION; HUSBAND AND WIFE, 6–10.
ALIMONY-1. On a bill for alimony, under section 20 of the Divorce
act, there must be both abandonment and refusal of support to justify
a decree. PARKER . PARKER.
Where the husband unjustly and untruthfully accused his wife
of unfaithfulness to him, and frequently told her that she might go
to her own home if she did not like his proceedings, and finally
struck her a blow in the face, in anger, and with such force as to in-
jure her eyesight, she was justified in separating from him, and this
was an abandonment by him under the statute. Id....................... 577
Where the husband has for years refused and failed to support
his wife and child, and they have lived apart from him, and he
definitely rejects, without cause, the wife's personal appeal to him for
a reunion, such a rejection is an abandonment by the husband of his
wife, within the meaning of the statute. Id.......
After suit brought because of such abandonment and refusal of
support, a formal invitation by the husband to the wife to return to
his house, unaccompanied by any evidence whatever of a purpose to
treat her with justice and consideration, and while he yet continues
to refuse even to speak to her, so that she fears to return to him, will
not relieve him from the consequence of his abandonment and refusal
to support her. Id...........
APPEAL-On appeal to this court, matters which do not appear to
have been adjudicated in the court below and which are not com-
plained of in the petition of appeal, will not be considered CUM-
BERLAND LUMBER Co. v. CLINTON HILL LUMBER MANUFACTURING
Co...........
AWARD AND ARBITRATION—1. Failure of the arbitrator to
view the premises cannot affect an award as to their value, in the ab-
sence of request to do so, he being familiar with them. HEWITT v.
LEHIGH AND HUDSON RIVER RAILROAD Co...............
The owner of land wanted by a railroad wrote the latter's repre-
sentative, "I am perfectly willing to take the judgment of any fair
man as to what damage this does to the property," and later, “There
is only one other way which I can suggest to avoid litigation, and
that is to ask Mr. H. to decide how much you are to pay, and for his
decision to be final" The reply was, "Your suggestion relative to
leaving the matter to decide to Mr. H. meets with my approval."
The representative also wrote to Mr. H., enclosing maps containing a
description of the land. The arbitrator agreed in writing to act.-
Held, that it was a complete submission in writing, and hence not
within the statute of frauds Id...........
Where defendant to a bill to enforce an award admitted the
agreement to submit to arbitration, the actual submission and the
award, and failed to set up the statute of frauds as a defence in his
answer, he cannot insist on it at the hearing. Id.......
Where the only question in a submission was the amount to be
paid for land already taken, and a conveyance of which could have
been compelled, it was not a case requiring the submission to be in
writing, and hence was not within the statute of frauds. Id.....
511
AWARD AND ARBITRATION—Continued
Where neither in the negotiations and correspondence leading
up to a submission, in the arbitration itself nor in the proceedings to
condemn involving the same subject-matter, was an equitable defence
interposed, it will be deemed waived in a suit to restrain the con-
demnation. Id...........
Where a party agrees to a second submission, and afterwards
repudiates the award therein, and begins condemnation proceedings,
he waives all rights under the first award. Id...............
A party to an arbitration cannot repudiate the award for causes
within his knowledge before it was made. Id............
In the absence of misconduct or want of good faith in an arbi-
trator, the fact that the award seems too high or too low is not ground
for judicial interference. Id.
BROKER-Where a broker, in assuming an agency for lending money
belonging to another, guarantees the loans as one of the considerations
of the employment, an exaction by the broker from a borrower of a
sum to guarantee the repayment to the lender is without consideration
as between the broker and the borrower, since the broker is bound to
guarantee the loans under its general contract with the lender.
HUGHSON v. NEWARK MORTGAGE LOAN CO
See PRINCIPAL AND AGENT; USURY, 2.
BUILDING AND LOAN ASSOCIATION-See MORTGAGE,
18, 19, 20.
CASES CRITICISED.
Ames v. Trenton Brewing Co., 11 Dick. Ch. Rep. 309.
Cumberland Lumber Co. v. Clinton Hill Lumber Manufacturing Co.
Daly v. New York and Greenwood Lake Railway Co., 10 Dick. Ch.
Affirmed, New York and Greenwood Lake Railway Co. v. Daly... 347
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