A break in the drain or sewer, its contents | smaller portion was from its income. should be discharged at a place of danger, considerable portion of the money referred no legal liability would rest upon those who to was undoubtedly expended in improving had discharged waste fluids into the drain. the residence property of Dr. Elmer, which Certainly no liability would result unless was at the time occupied by him and his those who discharged into the drain had wife. knowledge of the condition which produced Since Adoue v. Spencer, 62 N. J. Eq. 782, the injury. Whether the defendant had 49 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. knowledge of the discharge of the hot water 484, the law must be regarded as settled in at the place mentioned is not stated. Wheth- this state to the effect that, where the priner if the defendant had such knowledge, a cause of action would be exhibited, or whether, if it appeared that the pouring of the hot water in the conduit was an unlicensed act, this was the proximate cause of the injury charged, are questions which need not be considered. We are of the opinion that the declaration is defective in failing to charge that the use of the city pipe was an unlicensed and illegal act, and that, in the absence of such an averment, there is nothing in the facts pleaded which exhibits any cause of action against the defendant. cipal of a wife's separate estate comes to the possession of the husband and is used by him, the presumption of law is against a gift, although the opposite presumption may exist as to income from the wife's separate estate. See, also, Brady v. Brady (N. J. Ch.) 58 Atl. 931; Small v. Pryor, 69 N. J. Eq. 606, 61 Atl. 564; Mayer v. Kane, 69 N. J. Eq. 733, 738, 61 Atl. 374. These presumptions, however, can only be controlling in the absence of satisfactory evidence of a contrary purpose. Evidence inconsistent with the idea of a loan existed in Black v. Black, 30 N. J. Eq. 215. In the present case the evi The judgment of the Supreme Court is af- dence is wholly inconsistent with the idea of firmed. The CHANCELLOR, and SWAYZE, PARKER, BERGEN, and BOGERT, JJ., dissent. ELMER v. TRENTON TRUST & SAFE DE- (Court of Chancery of New Jersey. Nov. 6, 1. HUSBAND AND WIFE ($ 494*)-GIFT BY WIFE TO HUSBAND-PRESUMPTIONS. Where the principal of a wife's separate estate comes to the possession of her husband, and is used by him, the presumption of law is against a gift. [Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 494.*] 2. HUSBAND AND WIFE (§ 494*)-GIFT BY WIFE TO HUSBAND-EVIDENCE. Evidence held to show that money coming to the possession of a husband from his wife's separate estate was not a gift. [Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 494.*] Bill by Emma Burke Elmer against the Trenton Trust & Safe Deposit Company, administrator. Heard on pleadings and proofs. Decree for complainant. Thompson & Cole, for complainant. Vroom, Dickinson & Scammell, for defendant. a gift of either the principal or income. During the period of the advances in question the husband repeatedly signed statements showing the amount of money he was receiving from his wife, and in his bank book most of the deposits made by him of money received from his wife were marked by him in pencil with her initials. These acts on his part cannot be reconciled with the idea that any of the moneys so received by him were gifts to him. I will advise a decree for complainant for the aggregate of the amounts above stated. TRENTON ST. RY. CO. v. LAWLOR. (Court of Errors and Appeals of New Jersey. Dec. 23, 1908.) Dissenting opinion. For majority opinion, see 71 Atl. 234. SWAYZE, J. (dissenting). I agree with the court that the decree in this case should be reversed, but in my judgment the opinion does not go far enough in directing a modification. I think the failure of the complainant to tender itself ready to fulfill the contract made by its attorneys, by which the defendant was to receive $1,850, is fatal to its claim for relief. The defendant never LEAMING, V. C. The evidence establish- contracted that the case should be settled es the fact that Dr. Elmer received from his for $1,800 only. If, however, this difficulty wife, and deposited in his own bank account, could be overcome by imposing terms upon money to the amount of $8,862.21. His wife the plaintiff that it should ratify the contract also paid for him to Collins $1,198.41 and to made by the attorneys, I think the decree Katzenbach & Co. $549.30. All of the money to be made should be the same as was made referred to was the separate estate of Mrs. in Headley v. Leavitt, 68 N. J. Eq. 591, 60 Elmer. Most of the money so paid was from Atl. 963, and that the appellant should be the principal of Mrs. Elmer's estate; a restrained unless he will consent that the appellee may set up the alleged contract as a | nated as the "boss," to the fact that the madefense by way of accord and satisfaction, chine was out of order, and Kennedy releaving it to the jury to determine whether there was such a contract, and depriving the appellant only of the right to object that the accord was not followed by a satisfaction. PANKOW v. SWIFT & CO. plied that he would fix it at night, and it would be all right. The next morning the plaintiff went to the office and asked Kennedy if the machine had been put in order, and he said: "It is all fixed. You can go to work." Upon this assurance, the plaintiff went to work with Kennedy at his side, for 20 minutes, and continued to operate the (Court of Errors and Appeals of New Jersey. machine without mishap until about 8:30 Dec. 1, 1909.) 1. MASTER AND SERVANT (§ 288*)-INJURY TO SERVANT DEFECTIVE APPLIANCES ASSUMPTION OF RISK. Where the plaintiff, finding a machine at which he was employed imperfectly working, complained to one in authority, who the jury under the testimony might infer was the master's representative, and such person in authority promised to have the machine repaired over night, and on the following morning, in reply to the plaintiff's inquiry, said the machine was repaired and directed him to go to work, which, for over an hour, the plaintiff did, and worked at the machine, and while so working was injured by the machine tearing loose from the floor to which it seemed to be secured, held, that these facts required the submission to the jury of the question whether the risk was obvious, and whether the plaintiff assumed it. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] 2. MASTER AND SERVANT (§§ 287, 288*)-INJURY TO EMPLOYÉ QUESTION FOR JURY. The testimony in this case was sufficient to warrant its submission to the jury both upon the question of the employé's authority to represent the master, and upon the question of the obviousness of the risk and the assumption thereof by the plaintiff. Held, under the circumstances, a nonsuit was error. o'clock, when, in the plaintiff's language, "the wheel flew off, and the band fell off, and the screws got loose from the floor, and the machine started violently to shake as though the whole business was coming down, and at that time my arm was caught," and the injuries for which recovery is sought in this suit resulted. The nonsuit was granted upon the ground that Kennedy in giving the order to repair did not represent the master, and that, if he did represent it, the danger was an obvious one which plaintiff assumed as a factor in his employment. The effect of the case of Spencer v. Haines, 74 N. J. Law, 15, 64 Atl. 970, in the Supreme Court, upon which the learned trial judge relied as a basis for the nonsuit, was misconceived, because, to us it affords the ratio decidendi for a denial of the motion. In that case the learned Chief Justice gives as one of the grounds upon which the case would have been submitted to the jury, had the testimony warranted it, the fact that the defendant's liability could be predicated upon facts and circumstances from which the conferring of such authority might fairly be inferred, and concludes the opinion with the statement that, "in the absence of proof of any fact from which authority either real or apparent on the part of the engineer to bind the defendant by making the promise to repair could fairly be inferred," it was error to leave the question to the jury. But the differentiating feature of the case at bar William C. Gebhardt and Herbert Clark is that there is testimony going to show KenGilson, for plaintiff in error. Bedle & Kel-nedy's authority to represent the master, logg, for defendant in error. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. §§ 287, 288.*] (Syllabus by the Court.) Error to Circuit Court, Hudson County. Action by John Pankow against Swift & Co. Judgment for defendant, and plaintiff brings error. Reversed. from which the jury might fairly infer that such authority in fact existed. He had enMINTURN, J. The plaintiff in error was tire charge of this department of defendant's nonsuited at the Hudson circuit upon the business, hired and discharged employés, and following state of facts: He was employed supervised the work. Upon this floor he had by the defendant to fill a lard and fat ma- his "office," and there heard complaints and chine, which was operated in defendant's sent for mechanics to make repairs to the factory for the purpose of cutting and grind- machinery, and when he sent for them the ing lard. The lard was placed in a funnel- machine hands who made repairs came in shaped device at the top of the machine, response. In Spencer v. Haines there was and was led down to the bottom of the fun- no "proof of any acts done or words spoken nel, where a revolving shaft cut the lard by the defendant which would tend to create and carried it out into a vat. On the day in the mind of Spencer a belief that a prombefore the accident occurred, the machine ise to repair made by the engineer would be indicated a disarrangement by the looseness equivalent to a promise made by himself." of the cogs, which caused it to act in an ir- In the present case there was proof that regular manner. The plaintiff called the at- complaints made to Kennedy had the desired tention of Mr. Kennedy, who was in charge effect of bringing about repairs, and this of that room, and who was generally desig- fact would justify, and, in the absence of evidence to the contrary, require, an inference that Kennedy was authorized to act for the defendant in this respect. In the case of Cicalese v. Lehigh Valley R. R., 75 N. J. Law, 897, 69 Atl. 166, also referred to at the trial, the only evidence as to the authority of the foreman was that he was foreman or boss of the gang of workmen. It is, however, unnecessary to pursue this subject further, since the promise to repair was to repair at night, and the accident did not happen until the next morning, when the plaintiff was no longer justified in relying upon the promise to negative the inference which would otherwise be drawn, that he had assumed the risk. Andrecsik v. New Jersey Tube Co., 73 N. J. Law, 664, 63 Atl. 719, 4 L. R. A. (N. S.) 913. the extraordinary scrutiny to which this one has been subjected cannot, with any show of reason, be said to have been discoverable by the exercise of ordinary care." What happened in that case was that a trip hammer, that should have remained suspended above a die until released by pressure upon a treadle, descended without apparent cause; but, inasmuch as the trip hammer was intended to descend under proper circumstances, the mere fact that it descended was not in itself enough to justify an inference of negligence. The present case is very different. If the jury accepted the plaintiff's account of this accident, they could hardly escape an inference of negligence. Machines. that are properly secured do not behave in that way. The case resembles rather Kalker v. Hedden, 72 N. J. Law, 239, 61 Atl. 395. The account given of this accident by the plaintiff is said to be improbable; but that was a question for the jury to determine. The nonsuit was erroneous, and the judgment should be reversed, and a venire de novo issued. The question presented by this case therefore is whether, when the plaintiff resumed work in the morning, the want of repairs was obvious? The court, in the Andrecsik Case, held that. if the defendant failed to repair within the definite time fixed by the promise, the plaintiff would be deemed to have again assumed the risk, provided the want of repair was apparent to him. Judge Dill, speaking for this court, repeatedly used language to that effect. He speaks of the case as one where "the master has obviously defaulted in the performance of such promise," and says, "the servant must be held, where there is a manifest breach of the agreement to repair, to have reassumed the risk at the expiration of the time fixed for the performance of the master's promise.' This carefully guarded language is in har-2. CARRIERS (8 64*)-CONTRACT OF SHIPMENT mony with the language quoted in the opinion from Labatt on Master and Servant that, as soon as the period contemplated for the removal of the dangerous conditions terminates, the servant's position is precisely what it would have been if no promise had been given; that is to say, he reassumes the risk. The author, of course, means that the servant reassumes the obvious risk, since otherwise his position would not be precisely the same as if no promise had been made. There is nothing in this case to show that the risk was obvious when the plaintiff went to work in the morning. He was entitled to assume that the promise had been performed as the duty of the defendant required; and he had, in addition, the assurance of Kennedy that he could go to work, that everything was all right. In the absence of facts charging him with knowledge to the contrary, he had the right to rely on this assumption and this assurance. The question whether there was evidence from which negligence of the defendant can be inferred was also argued, and Bien v. Unger, 64 N. J. Law, 596, 46 Atl. 593, was relied on. The decisive point in that case was there stated by Justice Garrison; "An occurrence that remains unaccounted for after SAUNDERS v. ADAMS EXPRESS CO. (Court of Errors and Appeals of New Jersey. Nov. 30, 1909.) 1. CARRIERS (§ 62*)-CONTRACT. A common carrier may contract to carry goods to a point beyond its own line. Cent. Dig. § 197; Dec. Dig. § 62.*] [Ed. Note.-For other cases, see Carriers, -PERFORMANCE-"AGENCY"-"OFFICE." Where a common carrier contracts generally to carry goods, but provides that, if it has not an agency at the point of destination, it shall carry to its agency nearest or most convenient thereto, and there notify the consignee or deliver the property to some other carrier, it is not sufficient to bring the case within this provision of the contract to prove that the carrier had no office at the point of destination. [Ed. Note.-For other cases, see Carriers, Dec. Dig. § 64.* For other definitions, see Words and Phrases, vol. 1, pp. 261-262; vol. 6, pp. 4921-4931; vol. 8, p. 7736.] (Syllabus by the Court.) goods beyond its own lines. Ogdensburgh & Lake Champlain Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Ohio & Miss. Railroad Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; Northern Pacific Railroad Co. v. American Trading Co., 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269; Hill Manufacturing Co. v. Boston & Lowell R. R. Corp., 104 Mass. 122, 6 Am. Rep. 202; Darling v. Boston & Worcester R. R. Corp., 11 Allen (Mass.) 295; Root v. Railroad Co., 45 N. Y. 524. Numerous other cases are collected in 6 Cyc. 481, and 6 A. & E. Enc. 631. These were all railroad cases where it was at one time open to debate whether such a contract was not ultra vires. The case is stronger in favor of the right of an express company to contract for delivery beyond its own lines, since, unlike railroad companies, an express company is not confined to terminals, but offers as one of its advantages, perhaps its chief advantage, over other carriers, the ability to deliver at the residence or business place of the consignee. Fargo Express Company at Jersey City, and however, is unimportant. It is well settled that company continued the transportation that a carrier may contract to transport and delivered the machine to the plaintiff's representative at Clifton. When the box was opened, the machine was found to be injured. At the time plaintiff delivered the machine in Washington to the defendant's driver, he received from the latter a receipt, which contained the following conditions: "In consideration of the rate charged for carrying said property, which is regulated by the value thereof, and is based upon a valuation of not exceeding fifty dollars, unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein. (2) If the express company has not an agency at the point of destination, it shall carry the property to its agency nearest or most convenient thereto, and there notify the consignee, or deliver the property to some other carrier to continue the transportation. The Adams Express Company shall not be liable for loss or damage occurring after such delivery, nor for detention after having tendered the property to a connecting carrier." The driver at the time of shipment asked the plaintiff the value of the article, and either a value of $50 or no value was declared. The plaintiff did not read the receipt given to him, although it was legible and intelligible. The injury to the machine more probably occurred while being delivered at the plaintiff's house by the agent of the Wells Fargo Company than while in the charge of the Adams Company. The judge on these facts found generally for the defendant. Preston Stevenson, for plaintiff in error. Robert H. McCarter and Conover English, for defendant in error. SWAYZE, J. (after stating the facts as above). The question presented in this case is much narrower than the important legal questions which were so fully and ably argued by counsel. We assume for the purpose of this decision that the whole contract was set forth in the receipt, and that the plaintiff assented to its terms, and we lay no stress upon what seems to have been the finding of the court that the contract in fact was for through transportation from Washington to Clifton. If we look at the receipt alone, it is clear that the express company agreed to carry the box to its destination, unless it had no agency at that point. That is a necessary inference from the provision authorizing it to carry the box to some other point than the point of destination when it had no agency there. It is a case where the exception proves the rule. The court did not find whether in fact the lines of the Adams Since it was permissible for the defendant to contract for through transportation, the question to be determined is whether the contract in this case had that effect. It certainly had unless the defendant had no agency at the point of destination. In this respect the findings of fact are silent. The finding that it had no office at Clifton is very far from a finding that it had no agency at the point of destination, and this for two reasons: (1) An office and an agency are not necessarily the same thing; (2) Clifton was not the point of destination. (a) The words "office" and "agency" may by a derivative meaning of the latter word, sometimes be almost equivalent in signification, but they are primarily different. It must often happen and may be the fact in this very case that express companies have no office in villages which can readily be reached from a central office in another town, but no one would suggest that in such a case this clause in the contract exempts the company from making deliveries by the ordinary and accustomed agency of a delivery wagon. Moreover, to come within the provision of the contract, there must be no agency at the point of destination. The point of destination of goods shipped by express is ordinarily as in this case not a mere common terminal point, like a depot in the case of a railroad or a wharf in the case of a steamboat. It is often, perhaps usually, the place of business or residence of the consignee. Such was the understanding in the present case. Delivery at the plaintiff's residence was actually made as if in fulfillment of the contract. Either we must give the words "point of destination" a meaning different from that upon which the parties have acted, (b) fails to give a description of the properties of Error to Supreme Court. Certiorari by Andrew J. Case against the Inhabitants of Trenton and others. Judg. ment (68 Atl. 57) for defendants, and plaintiff brings error. Reversed. McCarter & English, for plaintiff in error. Benjamin Godshalk, for defendant in error McGovern. Charles E. Bird, for defendant in error City of Trenton. ing different from "office," for it would be ab- 1 2. MUNICIPAL CORPORATIONS (§ 332*)-CONsurd to construe this contract as if it conTRACTS-PROPOSALS OF BIDDER. templated the possibility of the defendant having an office at the residence or business place of each of its consignees. No such difficulty occurs if we read the word "agency" as used in its primary sense of the instrumentality by which the work is done, or in the sense of the person or agent by whom it is done. If we adopt this sense, we are not obliged to construe the contract as meaning that the carrier will be exempt from carrying the parcel through to its ultimate destination in case it has no agency permanently located at that particular point. The meaning is that it is exempt if it has no agency by which it can ordinarily in the usual course of its business reach the ultimate destination. Necessarily, in all cases where a carrier undertakes to carry goods beyond its own lines, it must employ an agency or agencies for that purpose, and the authorities above cited sustain the proposition that for that purpose one carrier may be the agent of another. The findings leave us in ignorance as to the exact relations which subsisted between the Adams Express Company and the Wells Fargo Company. They may have been partners, each being the general agent of the other. They may have been in the position of principal and agent, or employer and employé, or they may have been only in the position of connecting carriers. The silence of the findings upon this subject is no doubt due to the lack of evidence, which makes it impossible to determine the precise fact. If the relations between the companies had appeared at the trial and had been undisputed, it would have been then for the court to determine whether or not the defendant had an agency at the point of destination within the meaning of the contract. If it had not, the further question would arise whether the delivery to the Wells Fargo Company at Jersey City was a delivery at the agency nearest or most convenient to the point of destination in accordance with the language of the contract. The finding for the defendant was not justified by the evidence, and the judgment must be reversed, and there must be a venire de novo. CASE v. INHABITANTS OF TRENTON et al. REED, J. The charter of the city of Trenton (P. L. 1874, p. 385) declares that all contracts for doing work and furnishing materials for any improvement exceeding in amount $200 shall at all times be given to the lowest bidder or bidders, who shall give satisfactory proof of his or their ability to furnish the requisite material and to perform the work properly, and offer sufficient security for the faithful performance of the contract, in regard to time, quality of materials, and work to be done. On August 27, 1906, the city clerk was instructed to advertise for proposals for the paving of Monmouth street and Chestnut avenue, in the city of Trenton. In response to such advertisement two bids were received on September 4, 1906; one from the Barber Asphalt Paving Company, and the other from W. F. McGovern. These bids were referred to the city engineer and street committee. Notice was sent to the asphalt company on September 17th that a meeting of the street committee would be held on the evening of September 18th. A Mr. Brackett appeared for the asphalt company before the committee at that time, and made a statement respecting the ability of the company to carry out the contract, for which a bid had been presented. On the same evening the committee reported in favor of accepting the bid of Mr. McGovern, and this report was adopted by the common council, which body awarded the contract to Mr. McGovern, although his bid was somewhat higher than (Court of Errors and Appeals of New Jersey. that of the Barber Asphalt Company. The June 14, 1909.) 1. MUNICIPAL CORPORATIONS (§ 238*)-PUBLIC CONTRACTS-COMPETITIVE BIDDING. Where a statute requires competitive bidding in awarding a contract for public work, each bidder should be compelled to conform to every substantial condition imposed upon other bidders in presenting his proposals, so that all bidders shall be put upon the same footing. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 238.*] prosecutor sued out a writ of certiorari to bring up this action of the common council. and in the Supreme Court alleged, as reasons for the vacation of such action, first, that the contract should have been awarded to the Barber Asphalt Paving Company, as the lowest bidder; and, second, that it should not have been awarded to W. F. McGovern, be cause of his failure to conform to the condi |