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the money and have the benefit of the clause for a release, contained in the mortgage. This is not a new question in my mind. I have had occasion to consider it heretofore, and while there is no reported case that I know of where the question has been discussed or decided in this state, without any authority to the contrary, I think it is the duty of the court to take the language of the covenant precisely as it reads.

There is nothing in the mortgage which indicates that that covenant was to be operative only while the mortgage remained outstanding and not due. The language is general, and in my judgment creates an absolute, permanent right, and practically has the effect of distributing the mortgage through the tract, very much as if a separate mortgage was given on every 2,500 square feet. Of course that is not an accurate statement, because, under the terms of this covenant, a man might have 3,500 square feet, and, by tendering the right amount, would be entitled to his release.

While the decree will give the complainants releases upon their payment of the amount, according to the scale fixed by the mortgage, it is very clear that they are not entitled to any costs. They have not proved that they made any tender.

[2] If this is to be regarded as a bill to redeem, then, under the old English rule, costs have to be paid by the complainant, not by the defendant. But that rule grew out of a state of affairs which does not exist, in my judgment, in this country, and I do not think the American courts have enforced it; it has not been declared to be a rule of practice in New Jersey. Moreover, this bill is more in the nature of a bill for the specific performance of the covenant contained in the mortgage.

In my judgment the complainant is not entitled to any costs, and, if the defendant had not come in with an answer denying the right of the complainant to a release, I think the decree should award costs to the defendant; but, inasmuch as the defendant filed an answer denying the right of the complain

ants to any release at all, the decree will not award the defendant any costs. There will be no costs allowed to either party.

(83 N. J. Eq. 539)

( rate of $1,500 per month on the first section, $600 per month on the second section, and $650 stipulated to be the true value of the use of the per month on the third section, which sum was land to the board of freeholders and the true damages it would sustain by such delay, which the board was authorized to retain out of any Held, that the damages provided for were liquimoneys due or to become due to the contractor. dated damages, and not a penalty.

[Ed. Note.-For other cases, see Damages. Cent. Dig. §§ 157-163; Dec. Dig. § 78.*] 2. CONTRACTS (§ 300*)-PERFORMANCE-DELAY-NOTICE.

Where three contracts were entered into between defendant board of freeholders of a county and a contractor for the construction of a viaduct, and each provided that the board or its engineer should designate the day and place or places when and where the contractor should commence work, and that the contractor should complete the same within 18 months thereafter or be subject to specified deductions for delay as liquidated damages, the contractor was entitled to a notice from the board or its engineer, plainly stating when the contract term would begin to run against him as to each section of the work, and, no such notice having been given, he was under no liability for delay. Cent. Dig. §§ 1372-1381; Dec. Dig. § 300.*] [Ed. Note.-For other cases, see Contracts,

Consolidated actions by the McClintic Marshall Construction Company, William B. Waldo, and Edmund B. Vanderbilt and others against the Board of Chosen Freeholders of Hudson County and others. Judgment for defendants.

Cortlandt and Wayne Parker, for complainant McClintic Marshall Const. Co. Randolph Perkins, of Jersey City, and Frank M. Patterson, of New York City, for complainant william B. Waldo and his trustee. Thomas G. Haight and James J. Murphy, both of Jersey City, for defendant Board of Chosen Freeholders of Hudson County. Joseph S. Parry, of Hoboken, for Edmund B. Vanderbilt and Henry H. Vanderbilt, executors of the estate of Jacob Vanderbilt, deceased. Joseph F. Autenrieth, of Jersey City, for Robert W. Hunt Co. Theodore Rurode, of Jersey City, for Mack Mfg. Co. Hudspeth, Rysdyk & Garrison, of Jersey City, for Citizens' Nat. Bank of Toranda and Mechanics' Bank of

Groton.

LEWIS, V. C. These actions have been consolidated. They were brought under the "act to secure the payment of laborers, mechanics, merchants, traders and persons em

MCCLINTIC MARSHALL CONST. CO. Vployed upon or furnishing materials toward

BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY et al. WALDO v. SAME. VANDERBILT et al. v. SAME.

the performing of any work in public improvements in cities, towns, townships and other municipalities in this state," approved (Court of Chancery of New Jersey. Sept. 8, March 30, 1892, and by the decision in the

1914.)

Court of Errors and Appeals in this state in

1. DAMAGES (§ 78*) BREACH OF CONSTRUCTION CONTRACT-DELAY-LIQUIDATED DAM- the case of "Delafield Construction Co. v. AGES OR PENALTY.

12

A contract for the construction of a steel and concrete viaduct provided that the contracttor should pay the board of freeholders of the county for delay in completing the work, if any, beyond the time fixed for completion at the

James R. Sayre, Jr., et al., 60 N. J. Law, 449, 38 Atl. 666," such actions must be brought in the Court of Chancery.

By stipulation of counsel, the question of damages has been submitted to this court:

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep r Indexes 91 A.-56

counsel of the respective parties having reached an agreement among themselves in regard to the other questions involved in the

suits.

greater or less amounts or quantities than those mentioned and set forth in the engineer's estimate, then the said time will be increased or diminished as much as the engineer shall deem just and reasonable and fairly proportionate to the amount of said increase or diminution."

The suits are brought for the purpose of obtaining money alleged to be due to the various complainants for work done and maIt appears that the contractor, which was terials furnished in the construction of a then the Owego Bridge Company, was ordermunicipal improvement, known as the "Four-ed to begin work on September 19, 1907, at teenth street viaduct." This structure was the intersection of the West Shore Railroad erected under three separate contracts, which and Fourteenth street, Hoboken. The comwere entered into, between the Owego Bridge munication containing this order is dated Company, a corporation, and the board of September 5, 1907, and is signed by the enchosen freeholders of the county of Hudson, gineer. This communication was acknowlin June, 1907. For the purpose of erection, edged on September 6, 1907, by the Owego the viaduct was divided into three sections, Bridge Company. The place which was desand a separate contract was entered into for ignated to begin the work was on section 1. each section. The viaduct is built in the On September 27, 1907, the Owego Bridge shape of the letter "Y," the first section ex- Company wrote to the engineer, as follows: tending from Willow avenue, Hoboken, to the point where the two branches of the "Y" separate; the second section is the projection on the left; and the third section is the projection on the right. The contracts were projection on the right. The contracts were subsequently assigned by the Owego Bridge Company to the Syracuse Bridge Company, one of the defendants in these actions, this being done with the consent of the board of freeholders, and the Syracuse Bridge Company took upon itself the fulfillment of all the duties and obligations contained in the original contract. The complainants and the other defendants are subcontractors. The McClintic Marshall Construction Company had the subcontract for the steel work; William B. Waldo had the subcontract for the concrete, paving, excavation, etc., and the other parties various other works. The first and second sections were completed on June 1, 1912, and the third section on November 7, 1912.

The county seeks to deduct, from the moneys which would otherwise be due, damages for delay in completion, which is resisted by the other parties to the suit.

Each of the contracts provides (paragraph D, p. 54, of printed book):

"That the contractor shall commence work on such day and at such place or places as the board of chosen freeholders or the engineer may designate, and progress therewith so as to complete the work in accordance with this agreement, on or before the expiration of one year and six months after being directed to begin work," etc.

"We find that the board of freeholders have of the Fourteenth street viaduct, in Hoboken, not sccured any property whatever on the line so we can commence the substructure work to any advantage, being confined to the street entirely. This, as you know, is a great disadvantage to us, and will make us extra expense in doing this work. We, therefore, want to give you notice that all this will be taken into consideration as to the time that we commence the time that we lose in any delay caused by our contract. We will want to be allowed all extra not having the entire right of way and property so we can work to an advantage."

On December 31st the engineer wrote: "Mr. A. H. Mallery, Owego Bridge Company: In reply to your question for the extension of 1, 2 and 3, and specifications for the Fourteenth time for the three contracts known as sections street, Hoboken, viaduct, I am advised by our counsellor, Mr. John Griffin, that this work is not officially commenced until all the land is secured on each of the sections. The land for the first section will be secured about the 15th of February, 1908, and the eighteen months specified in your contract should commence on that date, if the land is secured. At present writing we cannot even give an idea when all the land will be secured for the other sections. We will most likely secure the Holland property next month, which will give you sufficient area to secure crushed stone for foundations and permit the erection of the steel work."

The last piece of property on the right of way of section 1 was acquired on September 30, 1907, but the owner was not actually ejected from the property until November 1, 1908. The last piece was acquired on section 2 from the owner on June 25, 1909, and on the third section the last piece was acquired on July 3, 1908. Work was started on the The contract further provides (same sec- first section in the latter part of October, tion) as follows:

"And in the computation of said time (expressed in days or parts of days) during which the work, or any part or section thereof, has been delayed in consequence of the condition of the weather, or by any act or omission of the parties of the first part (the board of freeholders), or strikes beyond the control of the party of the second part (the contractor) whereby the receipt of material is delayed (all of which shall be determined by the engineer, who shall certify the same in writing), and also the time during which the prosecution of the whole work is suspended by the engineer, shall be excluded. But if the performance of the contract shall require work or materials in

1907. The board of freeholders contend that the contractor was verbally notified to begin work on the second section on April 1, 1908, and it will be noticed that this alleged notification was before all the land on that section had been acquired. The board of freeholders also contend that work on the third section began in September, 1908.

The contracts provide (clause E, p. 55, printed form):

"That the contractor shall pay the board for delay in the completion of the said work, if any, beyond the time fixed for completion (unless the same be extended by a proper authority,

or permissible under this contract) at the rate | erwards the engineer clearly countermanded of (different amounts as to each section, as that order, according to my view, by his letwill be hereinafter set forth) per month, which said sum it is hereby stipulated and agreed is ter to Mr. A. H. Mallery on December 31st, the true value of the use of said land to the supra, and thereafter my finding is that the board and the true damages it will sustain by contractor did not receive any sufficient nosuch delay, which said sum the said board is tice that would bind him to pay the liquiauthorized and empowered to retain out of any, dated damages, and the same is true as to moneys due or to grow due to the contractor.' sections 2 and 3, so far as the lack of proper notice sufficient to bind the contractor to pay liquidated damages is concerned.

On the first section the damages were fixed On the first section the damages were fixed at the sum of $1,500 per month, on the second section, $600 per month, and on the third section, $650 per month.

Counsel for the various claimants have raised two questions regarding the right of the county to claim allowance for delays: First. That the moneys specified in the contracts to be paid by the contractor for delays are penalties and not liquidated damages. Second. That the county itself caused delay to the contractor in the prosecution of the work, and is therefore not entitled to avail itself of the right to claim the damages which the contract provides is payable to it for delays.

In the case of Hoey v. Jarman, 39 N. J. Law, 526, I find the rule there stated to be that, where there is ambiguity or obscurity which the other parts of the instrument do not explain, it is to be construed against the party giving the contract.

As I have already found, I do not feel that liquidated damages should be allowed, and I do not think that there has been any sufficient evidence produced from which I could draw any conclusion with respect to the allowance of compensatory damages. The evidence convinces me that the entire course of conduct and dealings between the board and the contractor was such as to evince an acquiescence on the part of the board in the length of time actually taken to complete the work.

Of course the county board will be held to a strict performance of the contracts; that is, it must perform all the conditions which are requisite for it to perform before the contractor can be held liable for liquidated damages. Outside of the question of liquidated damages, however, compensatory damages would be allowed if there were unreasonable NIRDLINGER v. AMERICAN DISTRICT delay in the prosecution of the work.

[1] There is no doubt in my mind that the damages provided for in the contract are,

TELEGRAPH CO.

(245 Pa. 453)

(Supreme Court of Pennsylvania. May 22, 1914.)

ACTION FOR LOSS FROM THEFT.

In an action for the loss of goods by theft after an employé of the defendant company had negligently failed to reset the electric burglar alarm, installed by defendant on plaintiff's premises, evidence held sufficient to entitle plaintiff to go to the jury on the ques tion of defendant's negligent failure of duty.

under the cases in this state, liquidated dam- 1. NEGLIGENCE (§ 136*)-PRIMA FACIE CASEages. See Monmouth Park Association v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Robinson v. Centenary Fund, 68 N. J. Law, 723, 54 Atl. 416; Moore v. Durnam, 63 N. J. Eq. 96, 51 Atl. 449; Brown v. Norcross, 59 N. J. Eq. 427, 45 Atl. 605; Gussow v. Beineson, 76 N. J. Law, 209, 68 Atl. 907; [Ed. Note.-For other cases, see Negligence, Jersey City v. Flynn, 74 N. J. Eq. 104, 70 Cent. Dig. §§ 277-353; Dec. Dig. § 136.*1 Atl. 497, affirmed 76 N. J. Eq. 607, 76 Atl. 3; 2. NEGLIGENCE (§ 56*)-"PROXIMATE CAUSE." Tilton v. McLaughlan, 83 N. J. Law, 107, 84 Where an act of negligence is so linked to Atl. 1044; Van Buskirk v. Board of Educa- succeeding facts that all are one continuously Atl. 1044; Van Buskirk v. Board of Educa-operating succession of events, in which the tion, 78 N. J. Law, 650, 75 Atl. 909. first is so naturally linked to the last as to be its cause, "proximate cause" is established; but where the chain is so broken that the events and facts become independent, the result is not the proximate consequence of the primary cause.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. § 56.*

For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.] 3. NEGLIGENCE (§ 136*)-PROXIMATE CAUSE— QUESTION FOR COURT.

[2] Under the evidence, however, I do not feel that liquidated damages could be allowed; that it would be inequitable. There were three contracts, and each one contained the clause that the board of chosen freeholders or the engineer were to designate the day and the place or places when and where the work was to commence. I shall find that the contractor was entitled to three distinct notices, one for each of the sections, clearly notifying him when the 18 months began to run against him in each case. I think he was clearly entitled to that, and, if he was left in doubt about such a vital matter, he should have the benefit of it. He was notified by the engineer (who had the necessary power under the contract to give such [Ed. Note. For other cases, see Negligence, notice) to commence work on section 1. Aft-Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

there was no conflict in the evidence whether Where, in an action for loss by theft, the negligence of defendant's employé in failing to reset a burglar alarm, installed by defendant on plaintiff's premises, and in defendant's charge, was the proximate cause of the loss, the question of proximate cause was for the court and not for the jury.

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

4. NEGLIGENCE ($ 62*)-PROXIMATE CAUSE. Where a company undertook to equip plaintiff's house with a burglar alarm, and to protect it from burglarious entry by the dispatch of guards thereto when warned by automatic signals, and where the house was burglarized while the burglar alarm was not set, due to the negligence of defendant's employé, the question whether the loss would not have occurred but for such negligence depended on several contingencies; and hence the proximate cause of the loss was not such negligence, but was the felonious entry of the building.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. § 62.*] 5. ACTION (27*)-NATURE AND FORM-ACTION ON CONTRACT-INCIDENTS.

Though an action may be in form as for a tort, yet if the subject of it be based on contract, the action will be attended by all

the incidents of an action ex contractu.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.*]

6. DAMAGES (§ 18*)-BREACH OF CONTRACT -PROXIMATE RESULT.

Where a company which has installed burglar alarms on plaintiff's premises breaches its contract to care for the premises in plaintiff's absence, it is liable for such damages as proximately result from such breach, though some damages result to the property during plaintiff's absence otherwise than proximately through such breach.

[Ed. Note. For other cases, other cases, see Damages, Cent. Dig. § 37; Dec. Dig. § 18.*] Appeal from Court of Common Pleas, Phil

adelphia County.

entrance was effected therein through a rais-
ed window, and various valuable articles,
amounting in the aggregate to a very consid-
erable sum, were stolen. The record shows
an express admission by the defendant that
on this particular occasion no agent was dis-
patched to the invaded premises, and no
alarm signal was received at defendant's
office. The negligence charged in the state-
ment of claim was failure on part of the de-
fendant to properly set and adjust, and keep
properly set and adjusted, the alarm system
which it had installed, and failure to prompt-
ly dispatch an officer for the protection of
the premises. The evidence submitted by
the plaintiff was to the effect that during
periods when the dwelling house was not oc-
cupied, it was his custom, if not a duty re-
quired of him, to leave the key of the house
with the defendant company, so that, if occa-
sion required, easy entrance could be ob-
tained; that during the morning of the day
preceding the burglary plaintiff, desiring to
get some articles from the house, requested
the agent of the company to open the house
for that purpose, and upon his withdrawal
therefrom to restore the electrical connection
which would be interrupted by the opening of
the house; that the agent accompanied plain-

tiff, to the house, opened it, and then with-
drew, requesting plaintiff to close the door
after he had obtained what he wanted
from the house, and promising to shortly
return and reset the alarm; that plaintiff
on withdrawing from the house carefully
he had been given entrance;
closed and secured the door through which

Action by Samuel F. Nirdlinger, for himself and for the use of the Frankfort Marine, Accident & Plate Glass Insurance Company of Frankfort-On-Main, Germany, against the American District Telegraph Company, a corporation. From judgment for plaintiff, de-ant's agent, if he returned at all to lock fendant appeals. Reversed.

See, also. 240 Pa. 571, 88 Atl. 6.
Argued before FELL, C. J., and BROWN,
MESTREZAT, POTTER, ELKIN, STEW-
ART, and MOSCHZISKER, JJ.

Horace Michener Schell and Frank R. Shattuck, both of Philadelphia, for appellant. Arthur S. Arnold, of Philadelphia, for appellee.

the house, neglected to reset the alarm be

fore finally leaving it. Plaintiff's effort was to show that the electrical apparatus had given no alarm when the burglarious entry was being made because of failure on part of defendant's agent to reset it. This became the main fact in dispute. It would serve no purpose to review the evidence on one side and the other touching this disputed point.

[1] It cannot be questioned that the eviSTEWART, J. The defendant engaged dence by plaintiff was quite sufficient to with the plaintiff for an annual money con- warrant an inference of negligence on part sideration to install and maintain in the lat- of the defendant, either in failing to have the ter's dwelling house, on North Broad street apparatus reset, or if it had been reset, in in the city of Philadelphia, an electrical sig- failing to send a representative to interrupt nal apparatus known as burglar alarm, so the burglary. The electrical apparatus was constructed that it would automatically trans- in the exclusive management of the defendInit to the defendant's office a notice by ant; all the elements of the occurrence, barsignal of any invasion or disturbance of door ring the burglary itself, were within its conor window in the house, and that upon re- trol, and the result was so far out of the ceipt of such signal the defendant would at usual course that no fair inference that it once dispatch an agent to the invaded prem- would have been produced by any other cause ises. So far as the evidence discloses this than defendant's negligence could arise. Zahwas the full extent of the defendant's under- niser v. Torpedo Co., 190 Pa. 350, 42 Atl. 707. taking. During the early morning of 26th It was for the defendant to overcome the October, 1910, while this relation between prima facie case so made out. The case as plaintiff and defendant continued, and the tried turned on this question of fact: Did plaintiff's house was unoccupied by plaintiff the defendant's agent on the afternoon of or members of his household, a burglarious 25th October, when he reclosed the house, re*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

mate cause, or was the negligence but a remote, as distinguished from the proximate, cause? Where the original cause, that is, the negligence, is by continuous operation so linked to each succeeding fact as that all may be said to be one continuous operating succession of events, in which the first becomes naturally linked to the last, and to be its

store the current? If he did, and for some unknown reason the apparatus failed to give an alarm when the house was broken into, however the defendant might otherwise be responsible, it could not be charged, because of this fact, without more, with negligence; if, however, he did not restore the current, it was negligent failure of duty for which the defendant would be responsible. The ques-cause, and thus within the probable foresight tion with suitable instructions as to the law was submitted to the jury, and the finding was for the plaintiff.

of him whose negligence is charged, then the proximate cause is established. Where, however, the chain is so broken that the events and facts become independent of each other, then the result cannot be said to be the natural and probable consequence of the primary cause. Penna. R. R. v. Hope, 80 Pa. 373, 21 Am. Rep. 100. Let us apply this test to the facts of the present case. The fact next preceding the fact of plaintiff's loss, and the one fact to which the loss must be referred as its nearest antecedent is the felonious entry of plaintiff's house. How was the defendant's negligence linked, as an operating cause, to this fact or event? Certain it is that it did not produce it. The law regards those consequences as remote, and therefore not actionable, which are produced by the intervention of human agency, or the voluntary act of a person over whom the defendant has no control, and his act no influence. Sedgwick on Damages, § 126. We find, then, a proximate cause of the loss here in the felonious entry of the dwelling, but back of that nothing, at least nothing that involves this defendant. It is argued, however, that defendant's negligence was the proximate cause of [3] This was a correct statement of the the loss because, except for it, the alarm sig[3] This was a correct statement of the nal would have announced to the defendant law; and we are now confronted by a find- the fact of the invasion, and the company ing by the jury that plaintiff's loss was the thereupon would have dispatched a reprenatural and probable consequence of defendant's failure to reset the electrical alarm. It sentative to the invaded premises, and thus is to be observed that on this particular question. Whether that would have been the reprevented the loss. But this is pure speculation of proximate cause there was no conflict of testimony whatever, and the fact of an intervening agency was manifest. A submission of the question, therefore, was unwarranted; it was clearly within the province and duty of the court to decide it. Now that it is raised on the appeal by the second assignment of error, it is properly for our consideration. Hoag v. Railroad Co., 85 Pa. 293,

[2] With defendant's negligence established, did a right of action for the tort result to the plaintiff? The instruction of the learned trial judge on this point was as follows:

"Even although you conclude that the alarm was not put on, unless you find that the failure to put it on was negligence, and you are convinced by the evidence that the failure to set the alarm was the proximate cause of the loss of the articles that it is claimed were stolen, your verdict must be for defendant. The proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new cause, produces the event. The consequence must be the natural and probable consequence, distinguished from the possible consequences. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. Unless the proximate cause of the robbery was the failure to set the alarm, your verdict must be for the defendant. If you are convinced that the robbery was the natural and probable consequence that would be expected to follow a failure to set the alarm, and that the alarm was not set, you will be justified in finding a verdict in favor of the plaintiff."

27 Am. Rep. 653.

sult had the apparatus been in working order sult had the apparatus been in working order can never be known. It would depend upon which would have been sufficient to disapcontingencies without number, any one of point it. Certainly there is nothing in the case from which a legal inference could be derived that the loss would have been averted

had the electrical alarm been in order. Adjudicated cases of this character are not frequent. But one more nearly parallel to this than any to which we have been referred is

[4] Briefly stated the question is: Was the plaintiff's loss or damage the natural or that of State v. Ward, 9 Heisk. (Tenn.) 100, citprobable result of defendant's negligence? That is to say, was it a consequence which ed by Mr. Sedgwick on his Treatise on Damfollowed directly from such negligence, and ages in support of his text. There the state which might or ought to have been foreseen had leased convicts to the defendant and by the defendant as likely to result from a agreed to keep a guard over them. It failed to failure on its part to reset the alarm ap-ment was burned by a fire set by one of the keep the guard. The defendant's establishparatus? Of course, the defendant was not an insurer against loss; nevertheless, if plaintiff's loss is traceable to its negligent breach of a duty that it owed to the plaintiff, it is liable. The question is, Can it be so traced to the negligence established in the case as the primary, efficient, and therefore proxi

convicts, and in an action by the state for the hire, the defendant set up his loss in recoupment. Nicholson, C. J., in the opinion says:

"Looking to the contract, then, for the measure of damages for its breach, it follows inevitably that the expense of such guards as are contracted furnish the true measure of damages.

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