traveling together to Paris. They continue
their acquaintance and familiarity in that
city. She becomes his 'artist's model.' His
automobile is at her command. They make
a five-day motor car trip to Southern France.
They remain in Biarratz together for two
months, and return together to Paris and
remain together there until her departure
for home in the latter part of July. During
all of this period she wrote some of the most
remarkable letters that were ever written
by a decent and innocent woman.
She pur-
poses a life of shame in order to get rid of
her husband and to avoid her married tie,
and she puts it on the ground that her in-
come is insufficient for her to live on, and
that she cannot live with her husband.
Under date of January 11, 1908, about 10
days after she had reached Paris, she writes
to her husband's mother: 'If I eat my lunch
and dinner here it costs me eight francs
extra. I can't always afford that, but I
am going into business as an artist's model.
I see your hands go up in holy horror. Mr.
Kip is going to paint me for the salon, and
a regular model gets ten francs a day, or
two dollars, but I will probably tire myself
out in half a day and only get one dollar;
however, that will help greatly.
If you
are shocked at my going to his apartment
to pose, just kindly remember that this is
the Latin quarter and one does what one
pleases without the least comment and that
if I can help myself in such a way I shali
not hesitate. He has an excellent couple, a
man and woman, always there. He is so
nice to me that I can scarcely believe he is
human; his automobile is always at my
disposal, and he has helped me tremendously
to get settled.
* Between you and

turn in September and her departure in De- | Italy. They find themselves staying tocember of 1907 they lunched together in gether at that port for a few days, and then New York once, at which time she visited him at his studio. It is important to note that Mrs. Moyer and Mr. Kip were domiciled in or near to the city of New York, and tliat, so far as appears in the case, neither of them ever had any business which would carry them to Boston or lead them to make that port a port of departure for Europe. Mrs. Moyer, however, had a brother who was in Boston in December, 1907. When she announced to her husband that she intended to go to Europe within a few days, she did not seek his aid in obtaining money for her expenses or accommodations on the steamship. She herself arranged in New York with the Cook Tourist Company to provide her with accommodations on a steamship sailing from Boston on December the 5th. She went to Boston a day or two before, met her brother, who accompanied her to the ship. When she got on board, she says she found Mr. Kip there; that they were greatly surprised at meeting each other in that casual and unexpected manner. This condition of surprise was likewise testified to by her brother, who was with her at the time. It was said on behalf of Mrs. Moyer that this was a mere coincidence, that there was no proof of prearrangement, nor any evidence that she and Mr. Kip had at any time previously agreed to meet on that particular vessel on that particular day. Granting the fact and giving that argument its full force, let us see what happened afterward. It turned out that their rooms on the vessel had been so selected as that they were exactly opposite each other on the same corridor, and that they were the last rooms on that corridor, and therefore could not be passed by other passengers in going to their various apartments. This may have been a I, I think they will feel a lot worse when coincidence, also, but it will strike one, II take still further steps. You may or may think, as a very singular fact that they not think I am right, mother dear, but to should be thus early in their voyage doubly surprised, first, in finding themselves upon the same ship together; and, second, in finding that they were accommodated with quarters which were in such close proximity. Mrs. Moyer evidently saw the danger of the situation, and she modestly requested Mr. Kip to change his room. This Mr. Kip absolutely refused to do. It does not seem to have occurred to her that she might have asked the authorities on the vessel to change her room; at any rate, they severally occupied the rooms to which they had been assigned during the voyage. These may all have been coincidences and be consistent with entire innocence, but they fit into a general scheme and plan of travel which throws the burden of proof upon Mrs. Moyer to clear herself of the suspicions which accompany these circumstances.

"The coincidences, however, continue. They

exist in this non-existant way and to be neither married or single does not appeal to my common sense, and I am almost decided to get a divorce and at least appear respectable in the eyes of the world. I can better my position in many ways if I am unincumbered, but I can only be open to more and more criticism and suspicion if I am married and still have no visible husband. It isn't as tho I were acting singly in this. I left home not because I wanted to but because it was mutually agreed that I could not live there, and I assure you if my husband cannot support me with money nor morally by giving me my child, I shall not consider myself bound to him in any way, and if he is a gentleman he will give me a divorce readily and in so doing protect his child. I did not mean to speak of this so soon, but some how it came out this morning. Every day I am more con

* ** *

1113

G. Young. He testified that he first saw
Mrs. Moyer on the ship on its sailing day
about half an hour before its departure, and
that she asked him if Mr. Kip was on board.
He says that he looked at his list and found
that Mr. Kip's room was directly opposite
Mrs. Moyer's, and he described minutely
relation of the rooms to each other; that
about an hour after the ship sailed he saw
Mr. Kip in Mrs. Moyer's room; and that
on the following morning after Mr. Kip had
taken his bath the witness saw him in Mrs.
Moyer's room dressed in his pajamas and
bathrobe, at which time Mrs. Moyer was
still in her berth. On a number of occasions
he saw Mr. Kip in Mrs. Moyer's room, and
occasionally he saw Mrs. Moyer in his room,
and he usually saw them together when be
had finished his work each night about 11
o'clock, and that on some occasions Kip
would stay in her room as long as an hour
in the morning; that he saw him go to
her room about half past 7 in the morning
every morning of the voyage, 13 mornings
as he counted them. These statements can-
not be denied by any one except Mrs. Moyer.
She does deny them, and her case depends
upon her ex parte testimony. An attempt
was made to impeach the statements of
this witness by Mrs. Moyer's counter state-
ment as to the Italian port at which they
debarked, she declaring that it was at Na-
ples, and the witness stating that it was at
Genoa. In the absence of other testimony,
I am inclined to believe the statement of
the steward, not only on account of his dis-
interestedness and of his clear statement
of the fact, but also on account of the prob-
abilities. At any rate, at whatever port they
did disembark, they left that port together
and went to Paris together therefrom.
this fact there can be no doubt.

she writes to her husband: 'I have found | apartments of Mrs. Moyer and Mr. Kip on that I cannot live on my income; if I had the Romanic was sworn as a witness to more I should not now ask you for what their acts on the vessel. His name is John it is my right to have; as long as I could support myself I asked for nothing. You know as well as I that I have left home not because I wanted to but because we cannot live together. You promised last spring to let me have Margaret in the fall. You broke that promise, and as a result I am alone, unprotected either morally or socially or financially, and Margaret is without her lawful heritage. If you will get your wits together you will know that this condition cannot go on much longer. I can't live with you or you can't live with me. I know of no way to earn my own living, and, furthermore, since I have been your wife my health has been so undermined as to make that an impossibility. Up to this time we have managed things in a fairly decent way. I implore you now as you love your daughter, your own good name and mine, to assist me in a divorce and to give me enough alimony to make it possible to live with the necessary comforts of life. I don't say this to threaten you, but only as an inevitable fact that if you neglect to help me in this request that you will regret it, for I shall be obliged to take steps that are considered disgraceful and for which you will be responsible. Up to this time you have laid all blame on my shoulders. I did not care I could take it without it hurting others. Now it is different, my actions now will forever reflect on my child, and those acts will be inevitable. I claim the right to map out my own life under the circumstances and although I shall go home to see my child I shall never stay in your house again and I consider all obligations to you as a wife are ended. A divorce in France is not the nasty thing it is in N. Y. I have obtained expert advice and know that it can be done easily and quietly but a cause must exist and at present there is none. This must be given your immediate attention for I have not the money to go along blindly as I must now until my health is again regained. * * I hope you will see this the way it is meant, i. e. in the light of self-protection. Certainly it must be plain to you that I need support to live and to be respectable I need my freedom. If you are coming over here it will be so much easier to handle.'

*

"All the above-recited facts are admitted by Mrs. Moyer. She denies the fact of adultery or wrongdoing of any character, and claims that this whole series of events is consistent with chastity and innocence. Her manner on the witness stand was itself a refutation of her denial and a confession of her guilt. She was impudent, flippant, and apparently regardless of the gravity of the situation and its effect on her future. "The room steward who had charge of the

Of

"The absence of her paramour from the witness stand must count against the truth of her statements and denials. The amended petition was filed November 12, 1908. I assume that Kip lives in New York. During the whole period of the pendency of this suit his deposition could have been placed on the files of the court. So far as appears, he was not further away than New York City, but no attempt was made on the part of Mrs. Moyer to procure his testimony or to get in any form the benefit of any denials that he might choose to make. It was held in Bibby v. Bibby, 33 N. J. Eq. 56, that the absence of the testimony of the paramour when it could have been produced was of much significance in reaching a conclusion as to the guilt of the defendant. In my opinion these facts and circumstances prove the charge of adultery with Kip made in the petition. They are susceptible of no other construction. No decent, self-respecting, in

to happen that did happen to Mrs. Moyer, PEOPLE'S BREWING CO. OF TRENTON v. and her conduct is therefore capable of but LEVIN et al. one construction.

N. J.)

PEOPLE'S BREWING CO. v. LEVIN

[1] "The principal defenses relied on were that the beer furnished by the complainant to the defendants under the contract, whereby they obligated themselves to purchase and sell the complainant's product exclusively for five years from the date of the agreementthat is, five years from December 17, 1906, at their place of business No. 167 South Broad street, Trenton, N. J.-was of poor and unmarketable quality and had deteriorated to such an extent as to be practically unfit for use. Upon the coming in of the defendant's affidavits on the return of the order to show cause, this exploitation being new matter, leave was given to the complainant, as is quite usual in such cases, to answer it.

"On the adjourned day complainant produced affidavits of more than 75 retail dealers in its beer, who testified that the product was good and wholesome, and also the affidavits of over 500 consumers of the beer, who deposed that it was pure, wholesome, palatable, and nourishing, and as good as any on the market. Besides this, the complainant's beer was submitted to chemical analysis, and the analyst has deposed that the results of the analysis indicate that the specimens submitted have been produced according to proper methods and have been properly fermented and treated, and that, generally speaking, the beer possessed a good composition and had evidently been produced from sound material. The complainant prevails by the clear weight of the evidence on the question of the quality of the beer; and this, quite aside from the chemical analysis.

1115

complainant's beer exclusively for a period of five years, a little more than two years of which has yet to run. Even if Vice Chancellor Pitney's remark in Feigenspan v. Nizolek, concerning the case of Sperry & Hutchinson v. Vine Bros., to the effect that, if the contract in the Sperry & Hutchinson Case was for one year, that feature alone would distinguish it from the Feigenspan Case, I do not understand him to decide that he would not have issued an injunction in the Feigenspan Case to protect the complainant in the fruits of the contract for its last year, if only one year, instead of nearly the five for which it was drawn, had then yet to run; but, whether so or not, it cannot, I think, be inferred from Feigenspan v. Nizolek that a contract of the kind under consideration, which had as much as two years to run, would not have been protected. While Vice Chancellor Pitney in the Feigenspan Case remarked that presumably the defendants in the Sperry & Hutchinson Case were able to respond in damages, he does not decide that, if the defendant in the Feigenspan Case was financially responsible, that fact alone would disentitle the complainant to an injunction. On the contrary, he holds that pecuniary responsibility is only one element to be considered upon the question of adequate remedy at law, and that the difficulty of ascertaining and proving the amount of the commodity sold and the profit at which it might be sold and the multiplicity of suits for damages are elements also to be taken into consideration in deciding this question. He remarks that to say that the complainant must not only accomplish the difficult task of keeping account and preserving the proof of the amount of beer sold by the defendant for the full period of five years, or even for one or two years, and then sue to recover its damages, seems to be a mockery; that the continuing character of the injury seems to be of itself, according to well-settled principles, a sufficient ground for the interference of the court. Here is a pointed intimation that the injunction would have been awarded in the Feigenspan Case if the contract would have expired in one year instead of five.

[3] "The contract here involved was found

[2] "The other point strenuously insisted upon by the defendants was that the complainant had an adequate remedy at law, and that therefore an injunction would not lie negatively to enforce the covenant made by the defendants with the complainant, and they relied upon the case of Sperry & Hutchinson Co. v. Vine Bros., 66 N. J. Eq. 339, 57 Atl. 1036. A perfect answer to this contention is found in the fact that this court decided the Feigenspan Case after the decision of the Sperry & Hutchinson Case by the Court of Errors and Appeals, not passing the latter sub silentio, but distinctly asserting that it could not be considered as governing the Feigenspan Case, which case was affirmed on ap-ed upon adequate consideration, and, having peal in Feigenspan v. Nizolek, 72 N. J. Eq. 949, 68 Atl. 1116. Therefore we have the Court of Errors and Appeals, which made the law in the Sperry & Hutchinson Case, affirming the Feigenspan Case, in which it was held in this court that the Sperry & Hutchinson Case did not apply. These decisions are entirely dispositive of the objection that there exists in the case at bar an adequate remedy at law, and I am not at liberty to disregard those decisions, but must apply them. "Although they assert the contrary, it clearly appears that the defendants fully understood the nature and effect of the agreement which they made to purchase and sell the

been kept by the complainant, the defendants will be obliged to keep it. It is contended on their behalf that they have dissolved partnership, and that the defendant Samuel Levin conducts the business concerning which the agreement was made, and that the defendant Harris Levin is disassociated from him in that business. The complainant disputes the bona fides of dissolution and claims that it was made with the covert purpose of relieving Harris, who appears to have property, from responsibility under the agreement. Deciding nothing with reference to this question, I hold that the injunction may properly go against both defendants, and thereby the

complainant will be protected in its enjoy-1 Certiorari, on the prosecution of Matilment of the fruits of the contract made by both of the defendants concerning the business at No. 167 South Broad street, Trenton, although only one of them may now be carrying on that business.

da Hornung and others against the Town of West New York and Joseph Roscitt, to review a resolution of the Municipal Board of such town. Award of contract set aside. Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Collins & Corbin, for prosecutors. Mark A. Sullivan, for defendant town of West New York. Pierre P. Garven, for defendant Ros

citt.

PARKER, J. Prosecutors attack the legality of a resolution of the municipal body of West New York, awarding to Joseph Roscitt the contract for a street improvement. The original prosecutors were competing bidders; but two taxpayers were admitted as additional prosecutors and have assumed the burden of the litigation. The grounds ar

[4] "Notwithstanding their agreement with the complainant, the defendants have entered into a contract to take the beer of another brewing company, to whom they have become heavily involved financially, and to whom they may have to respond, if they are obliged to keep faith with the complainant. would appear that they are between Scylla and Charybdis. They ask the court to save them from themselves. It cannot be done. [5] "This application has been sharply litigated, and the complainant is entitled to costs, which should not, however, include all of the affidavits taken by complainant in rebuttal of new matter, as many more affidavits were taken on that score than were nec-gued are two: That Roscitt, to whom the essary to countervail and outweigh the affidavits submitted by the defendants. I will hear counsel on the question of the extent to which the taxation should be allowed to go." Franklin W. Fort, for appellants. John H. Backes, for respondent.

PER CURIAM. The decree appealed from is affirmed for the reasons stated in the opin

ion of Vice Chancellor Walker.

(82 N. J. L. 266)

contract was awarded, was disqualified because he did not deposit with his bid a certified check as required by the conditions; and that he was further disqualified by failing to state in his bid the number of days that he would require to complete the work, which was also required by the conditions.

Although Roscitt did not deposit a certi[1] The first ground is not well taken. fied check as the term is generally understood, he did deposit a cashier's check upon a bank of unimpeached standing for solven

HORNUNG et al. v. TOWN OF WEST NEW Cy, to the order of the town, and with his

YORK et al.

(Supreme Court of New Jersey. Dec. 19, 1911.)

(Syllabus by the Court.)

1. MUNICIPAL CORPORATIONS (§ 333*)-CONTRACTS "CERTIFIED CHECK."

The requirement that bidders on a contract for public improvement shall submit certified checks to the order of the town treasurer with their bids is substantially fulfilled by the submission of a cashier's check on an accredited bank, to the order of the town, indorsed by the bidder.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 859; Dec. Dig. § 333.*

For other definitions, see Words and Phrases, vol. 2, p. 1034.]

2. MUNICIPAL CORPORATIONS (§ 332*)-CONTRACTS-REGULARITY OF BID.

An advertisement for bids under section 64 of the Town Act of 1895, p. 218, as amended in 1906 (P. L. p. 325), required bidders to bid a percentage of a standard price and also to state the number of working days required for completion, which with the allowance provided for inspector's wages would figure as an item in the bid. Held, that a statement of Held, that a statement of such number of working days was an essential element in the ascertainment of the lowest bid, and that its omission by a bidder rendered his bid irregular and the award of the contract to such bidder invalid.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 332.*]

own signature on the back. This made him an indorser. Negotiable Instruments Act (P. L. 1902, pp. 583, 594) §§ 63, 64. Consequently the town had the bank's own promise to pay, indorsed by Roscitt, and was at least in as advantageous a position to enforce compliance with the bid as if the check had been signed by Roscitt and certified by the bank at his request; both being then liable thereon. Times Square Automobile Co. v. Rutherford National Bank, 77 N. J. Law, 649, 650, 73 Atl. 479, 134 Am. St. Rep. 811. There was no substantial distinction between the cashier's check so indorsed, and a certified check, for the purpose of qualifying Roscitt as a bidder. The check was made to the order of the town, instead of the town treasurer, as required in the advertisement; but the requirement was manifestly for the benefit of the town, and the treasurer's authority to collect such a check is unquestionable. P. L. 1895, p. 230, § 29. [2] But we reach a different result on the second ground of attack. By section 64 of the town act of 1895 as amended (P. L. 1906, p. 325), the town must advertise for proposals for doing the work and furnishing the materials for a street improvement, which proposals shall be presented in such form and manner and under such regula