(70 N. J. L. 608) LEIMBACH v. REGNER. (Supreme Court of New Jersey. Feb. 23, 1904.) VENDOR AND PURCHASER-PAROL SALE-REAL ESTATE BROKER. 1. An agreement to pay a percentage upon the price fixed upon by the defendant and such purchaser as the plaintiff might obtain for certain real estate of the defendant is within the tenth section of the statute of frauds, and can be recovered upon only if in writing, signed by the owner or his agent. 2. The plaintiff cannot recover on a quantum meruit in such case when it appears that the transaction out of which the claim to compensation arises is a contract for the sale or exchange of real estate. (Syllabus by the Court.) Appeal from District Court of Newark. Action by Leonard Leimbach against Hans Regner. Judgment for defendant, and plaintiff appeals. Affirmed. Argued November term, 1903, before GARRISON and GARRETSON, JJ. is no written contract a subsequent express promise to pay is without consideration, and void, under the statute of frauds. The judgment below will be affirmed. (70 N. J. L. 596) NATIONAL LEAD CO. v. DICKINSON, Secretary of State. (Supreme Court of New Jersey. Feb. 23, 1904.) CORPORATIONS-EXTENSION OF EXISTENCE FEES. 1. Under section 114, p. 315, of the corporation act of 1896, a corporation extending its corporate existence is required to pay the same fees as fixed for the original certificate of incorporation, and is not relieved of this obligation by extending its corporation existence under the form of "an amended certificate of organization." (Syllabus by the Court.) Application by the state, on the relation of the National Lead Company, for writ of mandamus to Samuel D. Dickinson, Secre Algernon T. Sweeney, for appellant. tary of State. Application denied. Leonard Kalisch, for appellee. GARRETSON, J. This is an appeal from a judgment of nonsuit entered in a district court. The contract sued upon was a verbal agreement by the defendant to pay the plaintiff 22 per cent. upon the price agreed upon by the defendant and such prospective purchaser as the plaintiff might obtain for certain real estate described. The plaintiff did procure a purchaser, who bought the premises for $4,000, and the plaintiff sues for $100. This agreement was clearly within the tenth section of the statute of frauds, providing that "no broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the same, or exchange any real estate unless the authority for selling or exchanging such land is in writing signed by the owner or his authorized agent and the rate of commission on the dollar shall have been stated in such authority." Gen. St. p. 1604, § 10. The plaintiff, however, claims to recover on a quantum meruit. This is a mere attempt in this case to evade the statute. The state of the case, as settled by the judge, is that no item of work done and service rendered was supplied on a specific order of the defendant, yet the defendant knew that the plaintiff was endeavoring to carry out the contract alleged. This subject received very full consideration in the Court of Errors and Appeals in the case of Stout v. Humphrey, 55 Atl. 281, where the court held that the statute is aimed at any person who acts as broker or real estate agent in the very transaction out of which the claim to compensation arises; and in the absence of a written contract for the sale or exchange of real estate there is an absence of right to compensation for services, and when there 1. See Brokers, vol. 8, Cent. Dig. 44; Frauds, Statute of, vol. 23, Cent. Dig. § 131, Argued November term, 1903, before GARRISON and GARRETSON, JJ. James B. Vredenburgh and Albert C. Wall, for relator. The Attorney General, for defendant. GARRETSON, J. The relator asks for a writ of mandamus upon the Secretary of State, requiring him to file a certificate changing the period of existence of the relator from 50 years to perpetual, upon paying a fee of $20. The relator filed its original certificate of organization December 8, 1891, and that certificate contained this clause: "The period at which the company shall commence is the seventh day of December, A. D. eighteen hundred and ninety-one, and the period at which it shall terminate is the sixth day of December, A. D. nineteen hundred and fortyone." On June 3, 1903, the relator presented for filing a "certificate of amendment of original certificate of incorporation," one of the sections of which was: "Seventh. That paragraph twelve of said certificate of incorporation be omitted, and that there be substituted in its place the following words: 'VI. The duration of the corporation shall be perpetual." Upon tendering this certificate of amendment to the Secretary of State and tendering a fee of $20, he refused to file it, except on receipt of a fee of $6,000. This refusal was based on the ground that the certificate was one extending the corporate existence of the company, and therefore it was required that a fee of $6,000, being 20 cents for each $1,000 of its capital stock of $30,000,000. Section 27, p. 285, of the corporation act of 1896, provides that every corporation organized under it may extend its corporate existence by following a certain procedure, and filing a certificate thereof in the office of the Secretary of State. Section 114, p. 315, of the same act provides, on filing any certificate or other paper relative to corporations in the office of the Secretary of State, the following fees and taxes shall be paid to the Secretary of State for the use of the state: "Extension or renewal of corporate existence of any corporation the same as required for the original certificate of. organization by this act." This clause immediately follows in the same section that fixes the fees for the filing of original certificates of incorporation. The next clause in the same section is "dissolution of corporation change of name, change of nature of business, amended certificates on organization (other than those authorizing increase of capital stock) decrease of capital stock, increase or decrease of par value or number of shares twenty dollars." The claim of the relator is that, as this is an "amended certificate of organization," the only fee required is $20, but, when the act expressly provides that on filing "any certificate or other paper" for the extension or renewal of corporate existence the same fee shall be paid as required for the original certificate of organization, it cannot be that by calling the paper to be filed an "amended certificate of organization" the payment of the fee expressly authorized can be avoided. The application for mandamus is denied. (70 N. J. L. 442) PAUL v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Feb. 23, 1904.) CARRIERS FREIGHT LIMITING LIABILITY— NEGLIGENCE-LIVE STOCK-DAMAGES. 1. A common carrier cannot by a special contract secure exemption from liability for losses occasioned by its negligence. 2. Nor can a common carrier limit the amount of its liability for losses caused by its negligence. 3. Whether a contract between a common carrier and a shipper of goods by which a valuation is fixed upon the goods, and the liability limited to that amount, is valid, is not decided. 4. Where, by contract for the carrying of live stock, the shipper agrees to take care of, feed, and water the stock, whether delayed in transit or otherwise, there can be no recovery of damages arising from the failure to care for, feed, and water. 5. Lewis v. Pennsylvania R. R. Co. (N. J. Sup.) 56 Atl. 128, approved. (Syllabus by the Court.) Error to Circuit Court, Hudson County. Action by Joseph Paul against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed. Argued November term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and SWAYZE, JJ. James B. Vredenburgh, for plaintiff in er to Canfield & Co., Harrison, N. J. The contract was made between the plaintiff and the Philadelphia, Wilmington & Baltimore Railroad Company, and was what is called the "uniform live stock contract." It is the same form of contract which was considered by this court in Lewis v. Pennsylvania Railroad Co. (N. J. Sup.) 56 Atl. 128. The contract provided that the live stock had been received by the carrier for itself and on behalf of connecting carriers, upon certain terms and conditions, among which were the following: "That the said shipper is at his own sole risk and expense to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same." "The said carrier, or any connecting carrier, shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes, to wit: * * * for delay caused by stress of weather, by obstruction of track, or for any causes beyond their control. In the event of any unusual delay or detention of said live stock caused by the negligence of the said carrier or its employees or its connecting carriers or their employees or otherwise, the said shipper agrees to accept as full compensation for the loss or damage sustained thereby the amount actually expended by said shipper in the purchase of food and water for said stock while so detained." The stock were loaded upon the cars at Aberdeen about 2 p. m., July 24th, and the plaintiff placed his drover, Paine, in charge of the stock. Paine remained on the train during the transit over the Philadelphia, Wilmington & Baltimore Railroad and over the railroad of the defendant company until 8 a. m. on July 25th. The train had then reached Waverly, a few miles from Harrison. At this point Paine abandoned the stock without notice to the defendant, and knowing that there was a block of cattle cars ahead of his train. Among the stock were fresh milch cows, which should have been milked in the morning of the 25th. They did not reach their destination until 11:30 p. m. of that day, and were then in bad condition because of the failure to milk, feed, and water them at the proper time. During the day of the 25th the plaintiff telephoned to the freight station of the railroad company to ascertain about the delay in delivering the stock, and the person in charge of the office reported that he did not know anything about them. Paine, the drover, about half past 3 or 4 o'oclock in the afternoon, went to the general office of the railroad company, and was informed that they did not know anything about the car, but that a car of that description had been sent to South Broad street, Newark. There was a motion to nonsuit and also to direct a verdict, which the trial judge refused, and exceptions were duly in the courts of the different states, and sealed. The judge charged the jury as follows: "There are certain elements of damagesuch as regards the water and the feeding of the cattle-and I have to charge you on that point that under the terms of the contract, there having been a man in charge to water | and feed, and also to take proper care of the stock, if a reasonable opportunity was afforded to perform those functions, then the railroad company would not be liable for any damage resulting from a lack of water, feed, or care; but if the situation was such that the man in charge thought, or that it would be plain to the man in charge, that he would not be able to water, feed, and take care of the stock, then the liability would exist, not withstanding the clause of the contract in question." The judge also charged that, “if | it was obvious that Paine's staying by the cattle could do no good, and if he was placed in a position where, in the judgment of a reasonably prudent man, it was necessary that something should be done to try to get these cattle through, then he was justified in leaving them." Exception was taken to these portions of the charge. The exception pointed out that there was no proof that Paine, the drover, sought any opportunity to care for the stock. Paine, in his testimony upon this subject, says that he "left the train at Waverly, and went over to the stockyard, and informed them that the car was coming, and that there was a block ahead at the time, cattle cars." He also said that that was his usual practice. It is clear that Paine abandoned the stock for the reason that he expected a delivery at the stockyards before the necessity for further care arose. The greater part of the damages claimed by the plaintiff arose from the fact that the cows were finally delivered with spoiled bags, owing to the failure to milk them in the morning. We reaffirm what we said in Lewis v. Pennsylvania R. R. Co., that a contract between a carrier and a shipper that the shipper shall take care of, feed, and water the stock, whether delayed in transit or otherwise, is valid, and that the carrier is not liable for injury arising from failure to take care of, feed, and water the stock. It was not necessary to decide in the Lewis Case whether the carrier could contract for exemption from liability for injuries due to the carrier's negligence. This question has never been actually presented for decision in this state, although there was an intimation in Ashmore v. Pennsylvania Steam Towing Transportation Co., 28 N. J. Law, 180, that such a contract could not be sustained. Since that case was decided the question has been passed upon by the Supreme Court of the United States in the leading case of the New York Central Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, and the doctrine of that case has been very generally adopted seems to us sound upon principle. There is a greater diversity of opinion among the authorities as to the right of the carrier to contract for a limitation of the amount of damages recoverable where the loss is occasioned by negligence. The great weight of authority, and, as we think, correct principle, are against the right of the carrier to limit the amount of recovery. The authorities are collected in Judge McClain's article in 6 Cyclopedia of Law and Procedure, 398, 399; Ball v. Wabash, St. Louis & Pacific Railway, 83 Mo. 574. It is unnecessary now to express any opinion upon the right of the shipper and carrier to agree upon a value for the goods carried and to limit the right of recovery to the value agreed upon. Upon these principles, if there was evidence of negligence, the trial judge was right in refusing to nonsuit, and to direct a verdict for the defendant. The only evidence of negligence is the long delay from early in the morning until nearly midnight in transporting the stock over the few miles between Waverly and Harrison. It is said on behalf of the defendant that the plaintiff's case showed that this delay was due to obstruction of the track, and that this was one of the excepted causes of delay for which the defendant was not liable under the contract. All that the evidence showed was the existence of the obstruction at the time the drover left the train in the early morning. We think that the delay in this case was so great as to require the finding of negligence on the part of the defendant unless explained. No explanation was attempted. The court was therefore right in refusing to nonsuit or to direct a verdict. There was error, however, in the rule adopted with reference to the measure of damages. The Lewis Case holds that the carrier is not liable for injury to live stock transported under a contract like that involved in the present case, where the injury arises from failure to care for, feed, and water the stock. The court in the present case limited the exemption to a case where the carrier afforded a reasonable opportunity to perform these functions, and left it to the jury to say whether Paine was justified in leaving the train at Waverly. This charge introduces an element into the contract which was not inserted by the parties, and was unwarranted. It is unnecessary in the present case to express any opinion as to the rights and liabilities of the parties in a case in which the shipper requests an opportunty to care for the stock, and that request is denied. This case presents merely the question of the abandonment of the stock by the drover in charge. The damages should have been limited to the cost of caring for the stock from the morning of the 25th, when they should have arrived, until the next market day, on the following Monday, and to the difference in value between such stock in good condition on Friday morning and stock of the same character in good condition on the following Monday. The plaintiff cannot be allowed to recover for any damage that may have been due to the failure to care for, feed, and water the stock, for these damages were the result of the default of his own drover. For this reason the judgment must be reversed, and there must be a venire de novo. (70 N. J. L. 488) CIGAR MAKERS' INTERNATIONAL UNION OF AMERICA v. GOLD BERG. (Supreme Court of New Jersey. Feb. 23, 1904.) TRADE LABELS-COUNTERFEITING-CONSTITUTIONAL LAW. 1. The act relating to the sale of articles of merchandise with a counterfeit label thereon, approved March 15, 1898 (P. L. 1898, p. 83), is not unconstitutional. 2. Knowledge of the fact that the label is a counterfeit is not made of the essence of the offense, and need not be shown to entitle one suing under the act to recover the penalty imposed. (Syllabus by the Court.) Appeal from District Court of Newark. Action by the Cigar Makers' International Union of America against William H. Goldberg. Judgment for plaintiff. Defendant appeals. Affirmed. Argued November term, 1903, before PITNEY and FORT, JJ. Henry Hahn, for appellant. Joseph A. Beecher, for appellee. FORT, J. This is an action for a penalty under sections 6 and 10 of the act entitled "An act to provide for the registration of labels, trademarks, terms and designs, and protect and secure the rights, property and interests therein of the persons, associations, organizations and corporations, adopting and filing the same," approved March 15, 1898 (P. L. 1898, p. 83). The defendant is a dealer in cigars, and on March 7, 1903, he sold four boxes of cigars upon which were affixed counterfeit labels. The appellant admits the sale, but alleges two grounds for the reversal of the judgment for the penalty entered against him: First, that the act is unconstitutional; second, that the trial judge overruled testimony to show that he had no knowledge that the labels were counterfeit. As to the first ground, neither upon the oral argument nor in the brief is it shown to the court in what respect this act is in conflict with either the national or state Constitution, and we are unable to discern any in our reading of said instruments. As to the second ground, section 6 of the act (P. L. 1898, p. 86) makes it "unlawful and a violation of this act for any other person" than the owner "to sell, offer to sell, or dispose of or have in possession, with intent that the same shall be sold or disposed of, any goods, wares or merchandise, or product of labor contained in any box, case, can or package to which or on which any such counterfeit or imitation is attached, affixed," etc. This section makes the sale of a box of cigars with such a counterfeit label attached unlawful. The knowledge of the seller is immaterial. Intent, where a sale is actually made, is not made of the essence of the offense. The statute in no way limits liability to "willfully and knowingly selling," as appears to be the case in other states, where the courts have held knowledge in the defendant must be shown. Other statutes authorizing suits of this character have received the same construction in this court as here given. Waterbury v. Newton, 50 N. J. Law, 534, 14 Atl. 604. The judgment of the district court is affirmed, with costs. (70 N. J. L 499) BAKMAN et al. v. HACKENSACK IMP. COMMISSION. (Supreme Court of New Jersey. Feb. 23, 1904.) MUNICIPAL IMPROVEMENTS-REPEAL OF STATUTE-LEVY OF ASSESSMENTS. 1. The power to levy assessments for the benefits for sewer improvements in the village of Hackensack, in the township of New Barbadoes, in the county of Bergen, conferred upon the commissioners of the Hackensack Improvement Commission by the act approved April 1, 1868 (P. L. 564), was repealed by the act approved March 12, 1878 (P. L. 70), and by this latter act was vested in commissioners appointed by the circuit court. 2. The general township act, revision of March 24, 1899 (P. L. 412), does not repeal the act of April 1, 1868 (P. L. 564), creating the Hackensack Improvement Commission. (Syllabus by the Court.) Certiorari by the state, on the relation of Mary G. Bakman and others, against the Hackensack Improvement Commission. Rule to show cause discharged, and writ denied. Argued November term, 1903, before GARRETSON, PITNEY, and FORT, JJ. Peter W. Stagg, for the rule. L. A. Campbell and Demarest & Debaum, opposed. FORT, J. The Hackensack Improvement Commission was created under "An act to incorporate the Hackensack Improvement Commission," approved April 1, 1868 (P. L. 1868, p. 564). They are by this act given certain powers previously existing by statute in the inhabitants of the village of Hackensack (P. L. 1868, p. 565, § 5), and by section 13 of the act of 1868 it was provided that "this act shall take effect immediately and shall be in force in that part of the county of Bergen now known as the village of Hackensack, and included within the following boundaries," describing them (P. L. 1868, p. 568, § 13). Under section 8 of the act of 1868 the commission were given power to construct a sewer in any street of the village "upon the consent in writing of persons owning land upon the street, or upon the part of the street, through which the said sewer is proposed to be built, representing a majority of linear feet thereon." And upon such consent the commission are required "to ascertain, as near as may be, the cost of constructing said sewer, and shall assess the cost thereof in such proportions as they shall deem just, upon the lands lying upon such street or part of street, which, in their judgment, will be benefited thereby." By section 9 it is provided as follows: "That after the said consent for building a sewer has been obtained and the assessment therefor made, the said commissioners shall give notice of and hold a meeting to hear objections to the building of such sewer and complaints against such assessment; and such commissioners may alter such assessments or any of them; or, in their discretion, may alter or abandon the building of the same." All the proceedings provided for by the provisions of the act of 1868, including the consent of the landowners, the notice of the hearing, and the hearing upon the question of building the sewer, were complied with by the commission in this case, but they did not make an assessment of the cost of the sewer, as near as may be, as provided for by the eighth section of the act. If this assessment of the cost was the duty of the commissioners, then their proceedings are illegal; otherwise not. Hackensack is within the township of New Barbadoes in Bergen county, and was also a village prior to the creation of the commission provided by the act of 1868, supra, and we think it still remains so. In 1878 the Legislature passed an act entitled "An act to provide for the assessment and payment of the cost and expenses incurred in constructing sewers, and making other improvements in townships and villages," approved March 12, 1878 (P. L. 1878, p. 70). By section 2 of this act it is provided that hereafter in all cases in which an assessment for the costs, damages, and expenses which may be incurred by any board of commissioners for the construction of a sewer shall be necessary "the board shall cause public notice thereof, and apply to the circuit court for the appointment of three * commissioners to make an assessment of such costs, damages and expenses." The method for the procedure of said commissioners when so appointed is pointed out by the statute, and covers their report to the court and its confirmation. Section 18 of the act reads as follows: "This act shall refer to all boards of commissioners qualified by any local or special laws to make assessments for public improvements of the character mentioned in this act by whatever name or style such commissioners may be designated or known in and by the act authorizing them to make such improvements, and all special acts under which any local improvements of the character mentioned in this act have been or shall be made, so far as such special acts are inconsistent with the provisions of this act, and all other acts in ** consistent with this act, be and the same are hereby repealed." We think the provisions for the assessment by the commissioners of the Hackensack Improvement Commission contained in the act of April 1, 1868, of the cost and expenses of laying sewers was repealed by the act approved March 12, 1878, and that such assessments could only thereafter be laid by commissioners appointed by the circuit court. Nor is there anying in the other suggestion of the prosecutor that the Hackensack Improvement Commission act of 1868 was repealed by the general township act, revision of 1899 (P. L. 1899, p. 412). The rule to show cause will be discharged, and the writ is denied. (70 N. J. L. 368) STATE v. LEE et al. (Supreme Court of New Jersey. Feb. 23, 1904.) OYSTERS-UNLAWFUL DREDGING-EVIDENCE INSTRUCTIONS. 1. On trial of an indictment for the unlawful dredging of oysters under section 22 of the act approved March 22, 1901 (P. L. 1901, p. 317), it is not necessary for the state to prove that the oyster bed in question had been marked, buoyed, or staked by or under the supervision of the state oyster commission. 2. When a defendant is on trial for doing certain physical acts with a certain purpose, and the acts charged point indubitably to that purpose, it is not reversible error for the trial judge, in charging the jury, to refer to proof of the acts as sufficient proof of guilt, without expressly referring to the purpose, there being no request or suggestion on behalf of the defendant that the purpose should be more particularly mentioned. (Syllabus by the Court.) Error to Court of Quarter Sessions, Cumberland County. Uriah S. Lee and others were convicted of illegally dredging oysters, and bring error. Affirmed. Argued November term, 1903, before GUMMERE, C. J., and HENDRICKSON, SWAYZE, and DIXON, JJ. James Buchanan, for plaintiffs in error. 1. Hampton Fithian and Walter H. Bacon, for the State. DIXON, J. The defendants were indicted under the twenty-second section of an act approved March 22, 1901 (P. L. p. 317), for casting their oyster dredges upon an oyster bed, "duly marked, buoyed and staked up" within the waters of Delaware Bay and Maurice River Cove below the "Southwest Line," belonging to and in possession of Edward Allen under a lease from the state oyster commission, without the permission of said lessee. On trial in the Cumberland sessions they were convicted on the first count of the indictment, and found not guilty on the second count, which charged larceny of the oysters. The acquittal under the second count dispenses with further remark as |