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be operated, the company will not be heard, ceiving that, and then capitalize that in a fixed to complain that a person passing over the sum, and let that be your verdict.” railroad tracks at the crossing was not en In this instruction the judge told the jury titled to assume that the gates were in good that their verdict should be the capital sum and proper order and would be duly and which "would represent the money which his properly operated, especially as there was mother had a reasonable expectation of reno notice present bearing an inscription that ceiving from him during the term of her the gates were out of order. This act may natural life, and it would seem from the evibe said to be equally as strong for the plain- dence in this case that she did not get over tiff as the prior one, because it provides that six dollars per week.” in the situation in which this plaintiff's intes Defendant's counsel argues that this comes tate found himself the action is not barred under the ban of this court's decision in because of his failure “to stop, look and lis- Hackney v. Del. & Atl. Tel. Co., 69 N. J. ten before passing over such crossing," while Law, 335, at page 337, 55 Atl. 252, where the former provides that whether he "was or Justice Fort said, speaking of the verdict was not guilty of contributory negligence shall in that case: be a question to be determined by the jury." "That was giving to the widow and next of We also think that the facts of the case the jury might find the intestate, had he lived,

kin as a present value the whole amount which under consideration are clearly distinguish- would have given to the widow and next of kin, able from those present in Lindsay v. Penn- in installments, at future periods, during the sylvania R. R. Co., 78 N. J. Law, 704, 75 Ati. whole of his life. Such an instruction does not 912. In that case the deceased was partially next of kin will come into the present posses

take into account the fact that the widow and deaf, and therefore it was his duty in ap- sion of the fund with the future income thereproaching a railroad track, before entering of. What the plaintiff is entitled to recover is thereon, to rely especially upon his sense of a 'capital fund' (so to speak) which shall rep

resent the present value of all the pecuniary sight. It appeared that he was familiar with loss which will fall upon the widow and next the crossing and of the movement of the of kin by the premature taking off of the intrain, and that while in a place of safety, testate." four feet from the first rail of the track, he If any vice inheres in the first sentence of had an unobstructed view in the direction in the portion of the charge excepted to, it which the train came that struck him. But may be said to be cured by the second senin the case under consideration the view of tence which was: the deceased was obstructed by a line of "You have to say how many weeks you think freight cars which stood within five feet of she had a reasonable expectation of receiving

, a fixed sum, the crossing, and it was only when he passed and 'let that be your verdict.” the line of the obstructing freight cars that

This was equivalent to saying that the jury he was enabled to see the approaching train. should say how many weeks they thought the Although there was a space of eight feet and mother had a reasonable expectation of rethree inches between the extreme end of the ceiving from decedent $6 or less—the jury rails of the tracks, that is, from the track fixing the number of weeks and the sum upon which the freight cars stood and the per week—and that the sum so ascertained track upon which the train approached, we should be capitalized. think that the circumstance that he was on

True, the trial judge did not define the a railroad track, a place of danger, without word "capitalize” as applied to the measure warning by the railroad company, a jury of damages with which he was dealing. question was presented, whether the deceas- Counsel for the defendant give the definition ed, in proceeding onward, acted, under all of "capitalize” from the Standard Dictionary, the circumstances, with that degree of care including: “(2) to convert (a periodical payand prudence which an ordinarily prudent ment) into a sum in hand.” person would have exercised under like cir

If the jury understood the meaning of the cumstances.

word "capitalize" as thus defined, and they [5] Aside from the question of contribu-are presumed to have so understood it, then tory negligence, the defendant-respondent they were given a technically correct, though urges sustaining of the Supreme Court's de- not luminous, instruction. cision because of alleged error in the trial The defendant did not prefer any requests judge's charge with respect to the measure to charge as to the law of damages, and reof damages. That portion of the charge ex- lies solely upon the exception to the charge cepted to on the question of damages is as as delivered. We think the instruction is not follows:

reversible error. "You have to say in your best judgment, if [6] Defendant also urges that the Supreme you come to the question of damages, what cap- Court's judgment should be sustained beital sum-which is your verdict-whatever it may be, would represent the money which his cause there was error in the trial court's mother had a reasonable expectation of receiv- overruling an inquiry as to the earnings of ing from him during the term of her natural the plaintiff's second husband, claiming that life, and it would seem from the evidence in that would tend to show that plaintiff's pethis case that she did not get over $6 per week. You have to say how many weeks you cuniary loss would not be as great as if her think she had a reasonable expectation of re- deceased son were her sole support. The

cers.

question which was asked and overruled was, nature of the case will permit, although the this: "Q. 'He (referring to plaintiff's hus- mortgage would be valid against creditors who

became such after it was recorded. band) makes good wages, doesn't he?'

[Ed. Note.-For other cases, see Chattel MortIf the question had been directed to show-gages, Cent. Dig. &434-437; Dec. Dig. § 192.*] ing how much the plaintiff's second husband contributed toward her support, it doubtless 4. CHATTEL MORTGAGES (§ 192*)—RECORDING

-TIME-STATUTORY REQUIREMENTS. would have been error to overrule it; but

The fact that the delay was occasioned by the overruling of the introductory question the unexpected absence of the attorney from could not in and of itself have been harmful his office on other legal matters does not ren

der the mortgage valid, since a reasonable exto the defendant.

planation for the delay does not satisfy any The other alleged errors we think unsub- statutory requirement for immediate record. stantial. The judgment of the Supreme (.Ed. Note. For other cases, see Chattel MortCourt should be reversed, to the end that the gages, Cent. Dig. $8 434–437; Dec. Dig. $ judgment of the circuit court shall stand.

192.*)
5. CHATTEL MORTGAGES (8 192*)-RECORDING

-TIME-STATUTORY REQUIREMENTS. (83 N. J. Eq. 459)

Even if it be held that the contract did not BOLLSCHWEILER v.

V. PACKER HOUSE become effective until its execution was apHOTEL CO. et al. (No. 37–191.)

proved by the attorney, the delay of one day in

recording the mortgage after the return of the (Court of Chancery of New Jersey. Oct. 1, attorney was, under the circumstances, a failure .1914.)

to comply with the statutory requirement for 1. CORPORATIONS (88 464, 467*)—PROMISSORY immediate record. NOTE-ACCOMMODATION PAPER-ULTRA VIRES [Ed. Note.-For other cases, see Chattel ACTS.

Mortgages, Cent. Dig. $8 434-437; Dec. Dig. 8 Where a corporation acquires the business 192.*] and capital stock of another corporation and | 6. CHATTEL MORTGAGES ($ 90*)-RECORDINGgives its note in exchange for notes of the for

AFFIDAVIT. mer corporation, secured by stock in the new

If the contract was so essential to the corporation, for which the holder exchanged the mortgage that the latter did not become effective stock of the old corporation, which he had held until the execution of the former, the affidavit as collateral for former notes, the note so given for the recording of the mortgage, which menis neither accommodation paper nor ultra vires tioned the other consideration, but made no notwithstanding an agreement between the hold- mention of the contract, was 'defective under er of the note and certain officers of the new 1 Comp. St. 1910, p. 463, § 4, requiring such corporation that when the note is paid the affidavit to set out the consideration of the stuck should become the property of those ofti- mortgage and as nearly as possible the amount

due and to become due thereon. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1820, 1821, 1828, 1831; Dec. Dig. Mortgages, Cent. Dig. 88 168–173; Dec. Dig.

[Ed. Note.-For other cases, see

see Chattel $$ 464, 467.*]

§ 90.*] 2. CORPORATIONS (8 377*) PURCHASE OF STOCK IN OTIIER CORPORATION-CONSTRUC

Suit by Albert Bollschweiler against the TION OF STATUTES ADOPTED AT SAME SES- Packer House Hotel Company and others for SION. The provision of P. L. 1913, p. 32, except-vent corporation.

the appointment of a receiver for an insoling from a prohibition of purchases of corpo

vent corporation. Appeal from the deterrate stock by another corporation purchases mination of the receiver allowing and disalauthorized by the Corporation Act, applies to lowing certain claims against the corporathe purchase by a corporation of stock necessary tion. Determination of receiver sustained for its business, authorized by act of the same date (P. L. 1913, p. 28) which amended section in part and in part overruled. 49 of the Corporation Act (P. L. 1896, p. 293).

Joseph E. Stricker, of Perth Amboy, for [Ed. Note. - For other cases, see Corporations, receiver. John A. Coan, of South Amboy, Cent. Dig. $$ 1531–1534; Dec. Dig. § 377.*]

and James S. Wight, of Perth Amboy, for ex3. CHATTEL MORTGAGES ($ 192*)-RECORDING -TIME-STATUTORY REQUIREMENTS.

ceptant Peterson. T. H. Brown, of Jersey Where a chattel mortgage was given to se- City, for exceptant Taylor. cure the payment of notes executed and delivered on the same day as the mortgage, and also the payment of other sums which might become EMERY, V. C. I will state briefly the due under the terms of an agreement between conclusions reached on the hearing of the the parties, which agreement was drawn at the time of the execution of a chattel mortgage, but appeals on the claims of Mallon and Taylor. sent to the other parties thereto to be signed [1, 2] 1. The claim of William P. Mallon by them, and was returned two days later to as allowed by the receiver must stand. The the attorney who had drawn the papers, at which time the certificate of the authority of the notes of the insolvent corporation on which notary who took the acknowledgment was also it is based are not, as claimed by the exceptreceived, the failure to record the mortgage un- ants, accommodation paper. They were givtil the fifth day after its execution, whether it en partly in consideration of the surrender be regarded as delivered on the date of its execution or as delivered in escrow then to become by Mallon of notes of equal amount of the effective upon the execution of the contract, ren- Packer House Company, which latter comdered it invalid against those who became cred- pany at the same time conveyed to the initors prior to the recording thereof, under i solvent corporation all its assets by bill of Comp. St. 1910, p. 463, § 4, requiring the immediate recording of a mortgage, which is con- sale. The fact that it was also part of the strred to require recording as quickly as the consideration that the stock of the Packer

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

House Company held by Mallon was to be lon's hands either accommodation or ultra transferred to the purchasing company and Vires paper. made in part the basis for issuing its own 2. The claim of John S. Taylor is also stock to equal amount, and that this new founded in part upon notes of the new comstock of the purchasing company was to be pany given to him upon the surrender of delivered to Mallon as security for the notes notes of the old company upon the transfer of the purchasing company, does not make of its assets to the new company, and in the paper accommodation paper. This pur- part ($400) for notes of that amount given chase of the stock of the vendor company, to Mallon and transferred to him. The reunder the act of February 19, 1913 (P. L. ceiver has allowed only the latter amount 1913, c. 15, p. 28), amending the forty-ninth disallowing the balance of his claim. For section of the corporation act, may be held the reasons stated in reference to the Malto be not full-paid stock under the first pro- lon claim, Taylor's claim should be allowed viso of that section; but that question is not to the full extent of the notes of the old now an issue. That act amends the section company surrendered to the new company of the corporation act which made the judg- on the transfer. ment of the directors as to value conclusive As Mr. Taylor, however, was the principal as to the value of the stock purchased, in the stockholder of the old company and on the absence of fraud. The subsequent act of the transfer to the new company was one of the same year (chapter 18, p. 32), prohibiting three persons to whom the entire stock of purchases of stock, expressly excepts pur- the new company ($19,000) was issued as chases authorized by the corporation act. fully paid stock for the purposes of the transThis will include supplements thereto then in fer, a question may hereafter arise whether force, and include chapter 15 of the same the stock thus issued to Taylor is full-paid date, authorizing purchases of stock neces- stock, and whether as holder of unpaid stock sary for its business.

he is liable to assessment for payment of The transaction as disclosed by the evi- the debts of the insolvent company, and dence was substantially the taking over by whether any amount for which he is so liabill of sale and delivery of possession of the ble should not be set off against his claim. entire assets and property of the Packer On this proceeding the only question is the House Company, and, in connection with it, validity and amount of the claim. its entire capital stock, by the new company [3] 3. Claim of John N. Peterson: The which was organized for the purpose of tak- amount and validity of this claim as a claim ing it over and continuing the business, and against the company for $6,478.25 is not disas part of the consideration gave its notes puted, but it is secured by a chattel mortto a creditor of the vendor company, who gage, and its preference as against Mallon was entitled to follow and hold its assets and Taylor, who became creditors on March for payment. He surrendered to the new 1, 1913, and before it was recorded on March company the notes evidencing his claims as 6, 1913, and who seem to be the only credicreditor of the old company on receiving tors of this kind, is disputed. As against from the new company its notes for the same creditors who became such subsequent to the amount. Its notes in his hands are there recording, the mortgage is preferred. Roe fore not accommodation. The circumstance v. Meding, 53 N. J. Eq. 350, 369, 30 Atl. 587, that, when these notes of the new company 33 Atl. 394 (Err. & App. 1895). The statute were given for the debts of the old company, (1 Comp. St. p. 463, par. 4) requiring "immedistock in the new company was given to Malate delivery” of the mortgaged chattels, or lon as collateral to an amount equal to the the "recording” as directed by the act as stock of the old company, and which he also construed in Roe v. Meding, supra, 53 N. J. held as collateral and surrendered, and the Eq. 368, 30 Atl. 587, 33 Atl. 394, means further circumstance that by the provision “immediate possession" or "immediate reof an agreement signed by Mallon, the new cording.” There was a further declaration company and Brevoul, one of its officers, it (Van Syckel, J., 53 N. J. Eq. 359, 33 Atl. 395) was agreed that on the payment of these that "immediate” means “as soon as may be notes of Mallon by the company the stock of by reasonable dispatch under the circumthe new company held as collateral should stances of the case”; and in subsequent be the joint property of Bollschweiler and cases, both in the Supreme Court and in this Brevoul, may, either on the evidence at the court, this construction of the meaning of hearing or when the question comes to issue, the term "immediate” as given in Roe v. raise the question as to whether this stock Meding was adopted. Hardcastle v. Stiles, in the hands of Brevoul and Bollschweiler is 69 N. J. Law, 551, 55 Atl. 104 (1903), affirmed, fully paid. But Mallon received the stock for reasons stated, 70 N. J. Law, 828, 59 of the new company only as collateral, and, Atl. 1117; Brockhurst v. Cox, 71 N. J. Eq. in view of the whole evidence given on the 703, 64 Atl. 182 (Garrison, V. C., 1906), afappeal as to the circumstances under which firmed on appeal 72 N. J. Eq. 950, 73 Atl. the notes were given, this agreement does 1117; Gulden v. Lucas, 81 N. J. Eq. 106, 85 not, as against him, have the effect insisted Atl. 902, 903 (Garrison, V. C., 1913). on so strenuously by complainant's counsel, The chattel mortgage in question given by of making the new company's notes in Mal- | the Packer House Hotel Company to Pabst

Brewing Company and John N. Peterson was, Mr. Gilbert, the attorney of the brewing comdated March 1, 1913, and conveyed all the pany, who acted for them in arranging the chattels then in the hotel known as the contract. The papers were left with him Packer House in Perth Amboy, or to be at his office in New York upon their execuafterwards added to or substituted for these tion on Saturday, March 1, 1913. After the chattels. These were the chattels which had execution of the mortgage and contracts, Mr. been purchased by bill of sale from the Gilbert, being satisfied that the brewing comPacker House Company, executed and deliv- pany would approve, delivered checks for ered on the same day to the Packer House the money to be advanced by the brewing Hotel Company, in connection with the de- company on account of the purchase price on livery of the notes on this purchase, above the transfer from the old company to the referred to, which also took place on the new company, and this transfer was comsame day, but was a separate and independ- pleted independently and subsequently on ent transaction. Pabst Brewing Company the same day. The execution of the mortand Peterson supplied the money which was gage took place on Saturday after the clospaid on the purchase, and this chattel mort- ing of the public offices, and Mr. Gilbert, gage was given in part to secure them for before whom as notary public the affidavit the money advanced in cash, which was paid as to the consideration of the chattel mortover that day to the vendors, who at the gage had been taken, gave directions for prosame time received the new company's notes curing this certificate on the Monday followin substitution for the old company's notes ing, and also on Saturday mailed to the as above stated. Mallon and Taylor do not Pabst Brewing Company in New York the appear to have had any knowledge of the contracts for their execution and return to proposed mortgage given to secure the money him in New York. On Sunday Mr. Gilbert advanced to make the cash payments to them was called to Albany to attend to a case in on the transfer. On the day of executing the Court of Appeals of New York, and at the mortgage, an affidavit as to its considera- the time expected to return on Monday. On tion was taken by Peterson, in which this con- Monday, March 3d, the brewing company, by sideration is stated to have been “$4,000 there- its letter of that date, returned two signed of money actually loaned by the mortgagees copies of the contract to Mr. Gilbert's office. in order to enable the mortgagor to pay part Whether this letter was received on March of the purchase price of the property herein 3d or March 4th does not appear. On March described. The remaining $4,000 to secure 3d the certificate of the county clerk to Mr. the mortgagee, Peterson, for his indorsement Gilbert's notarial authority was also reof a note made by the Packer House Hotel ceived at his office. Mr. Gilbert was unexCompany and discounted with the First Na- pectedly detained at Albany and did not tional Bank of Perth Amboy, N. J., in order return to his office until Wednesday, March to raise additional funds to meet the balance 5th. He does not seem to have given, either of the purchase price for the property herein before leaving for Albany or while there, described,” and “that there is actually due any directions as to the forwarding of the on the mortgage $4,000, and in the event of chattel mortgage for record after procuring the failure of the mortgagor to pay the note the clerk's certificate, and the return of the indorsed by Peterson, then the additional contracts executed. The transaction had sum of $4,000 will be due, making in all the been under his exclusive charge and the sum of $8,000.” There was no reference in chattel mortgage with the contract remained the affidavit to any other consideration of in his office until his return on March 5th, the mortgage. The mortgage itself, however, and on that day he sent the chattel mortis by its term conditioned not only for the gage by mail to the county clerk of Middlepayment of the sum of $8,000, on demand sex county, where it was received and rewith interest, but is also upon condition corded on March 6th, at 8 a. m. that the mortgagor "pay all other sums Five days thus elapsed between the execuwhich may be due or become due by it to tion and the recording of the mortgage, and the parties of the second part, or either of treating the direction of the statute as to them, for merchandise sold to it by either “immediate recording” to mean as declared of them, and shall also fully comply with by V. Ch. Pitney in Roe v. Meding, 53 N. J. the terms of an agreement between the par- Eq. 358, 359, 368, 30 Atl. 587, 590, "as quickties, bearing even date herewith, for the ly as the circumstances of the case and the sale of Pabst beer and other merchandise character of the chattels will permit," or as exclusively.” This agreement is only refer- declared by the Appellate Court in the same red to, but is not set out, in the mortgage, case to be, "as soon as may be by reasonable and the affidavit does not refer to it as dispatch under the circumstances of the constituting part of the consideration. It case," the question of fact to be decided is appears by the evidence that such an agree whether, applying this test, the chattel mortment to be executed in triplicate was drawn gage, under the circumstances of the case, , at the time of the execution of the mortgage, was "immediately recorded” as required by signed by the mortgagor and Peterson, and the statute. On the part of the mortgagee, was to be signed by the Brewing Company. it is claimed that the original delivery of the The mortgage and contracts were left with mortgage on Saturday, March 1st, to Mr. Gi!

bert, was in escrow only; that the mortgage, not, in my judgment, as against these credas appears by the terms of it, was to secure | itors, make the recording or sending for recnot only the payment of money, but the per- ord after this delay, either an "immediate formance of a written agreement therein re recording" as the express terms of the statferred to; that this agreement did not be- ute require, or a recording "as soon as may come effective until the agreement itself was be” or “with reasonable dispatch," as consigned by Pabst Brewing Company and not strued by the courts. until after its execution had been approved In the cases referred to by counsel, as personally by Mr. Gilbert, in whose hands adopting by construction the qualification the chatteł mortgage had been left in es- “unless the delay is explained,” it appears crow; that, as he had no opportunity to give that prima facie the delay in recording was his approval until his return on March 4th, such as to preclude its being considered as the question as to delay is reduced to the an “immediate recording,” and the fact that delay of a single day in sending the mort- no explanation was given was referred to, gage by mail from New York.

not by way of importing a qualifying clause [4] And it is further insisted that the un- into the statute, but by way of confirming expected delay in not sending the mortgage the conclusion justified by the facts which on Monday, March 3d, has been reasonably did appear. This seems to be the express explained, and that under the decisions such declaration in these cases relied on. Dunreasonable explanation of the delay in re- ham v. Cramer, 63 N. J. Eq. 151, 158, 51 Atl. cording satisfies the statute. In my judg-1011 (Grey, V. C., 1902); Brockhurst v. Cox, ment, the contention that delay "reasonably 71 N. J. Eq. 703, 706, 64 Atl. 182 (Garrison, explained" satisfies the statute cannot be v. C., 1906). allowed. The statute itself requires "imme Treating the case as one where the delivdiate” recording, and, as construed by the ery of the mortgage was suspended until the courts, recording “as soon as may be with execution of the contract by the brewing reasonable dispatch under the circumstances company, this took place on March 3d, on of the case.” This is a different statutory which day also the clerk's certificate was rule from "immediately recording, unless the procured. The agreements were to be exdelay be explained." The delay may be ex- ecuted in triplicate. On Saturday Mr. Gilplained, and this explanation may be en- bert mailed all three copies (executed by the tirely satisfactory, as it is in this case, so hotel company and Peterson) to the brewing far as the parties to the mortgage and their company, who were to execute all three, and, attorney, to whom it was delivered for rec- as appears by the brewing company's letter ord, are concerned. But that is an entirely to Mr. Gilbert of March 3d, to return only different question, I take it, from whether, two of them to him. The brewing company as between the creditors of the mortgagor apparently retained the third copy, and on and the mortgagee, the mortgage was, under the mailing of the two signed copies to Mr. the circumstances of the case, recorded ei- Gilbert, for delivery to the other parties, the ther as quickly as the circumstances permit- contract was complete. The retention of the ted, or with reasonable dispatch. Circum

Circum- chattel mortgage from record or the failure stances of the case which, among others, to send it for record either by mail or meshave a bearing on the question of "reason- senger on the morning of the 4th was due to able dispatch," are these: The mortgaged the retention of all the papers in Mr. Gilchattels, owned by a New Jersey corporation bert's office, pending his return, and his apand located in New Jersey, were conveyed parent failure or omission to give any directo the mortgagor on March 1st by bill of tions in relation to the matter during his sale delivered in New York City, at the office unexpected absence. He intended and exof a New York attorney, and the notes rep- pected, as he says, to be at his office on Monresenting part of the purchase money, or day, and had he been there the mortgage arising out of the purchase, were then de- would undoubtedly have been sent or mail. livered to the creditors, who became cred-ed on the 3d or the morning of the 4th. Deitors of the mortgagor on that date, and lay beyond this time, under all the circumwithout, so far as it appears, any knowledge stances proved in this case, seems to me to as to a proposed mortgage to be given on have been a failure to record the mortgage the property sold, to secure the payment of either was soon as may be” or with "reasonportion of the purchase money paid on the able dispatch.” The fact that our courts altransfer to the person or persons who had low "reasonable dispatch” under the circumadvanced it for the mortgagee. The chattel stances to be treated as "immediate recordmortgage was executed and acknowledged ing" under the words of the statute, and on March 1st, but in New York and before have thus by construction extended its terms an officer of that state, which required a de- to a reasonable limit, requires, I think, that lay of at least a day for procuring an official in the application of the statute, under this certificate to the acknowledgment. The ad-construction, we should continue to keep in ditional delay in recording or sending for mind that the language to be construed is record arose by reason of the New York at still the direction for "immediate recording," torney's engagements in the courts of New not these words as qualified by an express York. While this explains the delay, it does statutory direction for "reasonable dispatch,”

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