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N. J.)

PUBLIC SERVICE RY. CO. V. BOARD OF PUBLIC UTILITY COM'RS

1117

tions as the council may prescribe, and "up- not on the same footing. Case v. Trenton, on the coming in of such proposals the 47 N. J. Law, 696, 74 Atl. 672. council may enter into contract with the But it is further urged that the town was lowest responsible bidders on the terms of not required, under the terms of section 64 their proposals.” The council is authorized as amended, to award the contract to the to reject all the bids and readvertise, but lowest responsible bidder, or upon the terms no such action was taken. What happened and conditions prescribed for bidders. The was this: Bids were advertised for, to be argument seems to be that, because the submitted on blank forms furnished by the council may enter into contract, with the town, and based on plans and specifications lowest responsible bidders "on the terms of filed in the office of the town clerk. The bids their proposals," it is authorized to accept were to be in the form of a percentage of a a proposal varying materially as to perstandard of cost stated in the specifications. formance of the work provided the amount In the advertisement it is stated that bid of the bid be satisfactory. But we can ders will also state the number of working draw no such meaning from this language. days they will require to complete the work, The effect of so doing would be to enable and the specifications contain this clause: each bidder to draw his own contract and "In submitting their bids or estimates, bid-specifications and make competitive bidding ders will bid a percentage of the above a farce. It is not seriously claimed that an standard of prices, and will also state the absolute discretion to award contracts is number of working days they will require vested in the council, or that the word to complete the work, which statement, bas-“may” is not imperative rather than pered upon the wages due the inspectors, will missive. We have no doubt that it is tanfigure as one of the items."

tamount to "shall," and that, as the act reThere were a number of bidders, but we quires the bids to be presented "in such are concerned at present only with the two form and manner and under such regulalowest in percentage. Roscitt bid 68

tions as the council shall prescribe,” the

per cent., but stated no time of completion. adoption of a standard contract and speciHenry & Emmer, the original prosecutors, fications as a basis for bidding is not only bid 69 per cent, and offered to complete in proper but necessary, and the terms of the 200 working days. This was on June 6th. proposals must necessarily conform to those On June 15th Roscitt sent in a communi- of the contract and specifications, and the cation stating that his omission to state only terms that could be varied by bidders the number of working days was due to his under the evidence in this case were the

of being misled by the blank form, and stating percentage of standard and number 175 days as the time required for comple- working days. tion, and on the 20th the contract was

We conclude, therefore, that the bid of awarded to him.

Roscitt was irregular, and the award of the It is urged that the requirement of num contract to him was illegal and must be set

aside. ber of working days was an immaterial one and should not affect the validity of a bid; but we think differently. What the town

(82 N. J. L. 312) wanted was the lowest total cost; and it is PUBLIC SERVICE RY. CO. v. BOARD OF plain from a reading of the clause quoted

PUBLIC UTILITY COM'RS et al. from the specifications that this is made up (Supreme Court of New Jersey. Dec. 26, 1911.) of two elements, viz., percentage of engi- | (Supreme Court of New Jersey. Dec. 26, 1911.) neer's standard, and cost of inspection, and

(Syllabus by the Court.) that a lower per cent. might well make a CARRIERS

12*) — REGULATIONS — STREET higher bid when combined with a larger RAILROADS-TRANSFERS. number of working days. The engineer's

An ordinance granting to a company the figures constituting the base of the percent- right to construct and operate a street railage calculation are not before us; but it is way along the public streets of a city which

provides for a system of transferring passengers, safe to say that Roscitt would not have tak- 'subject to any future regulations of the board," en the trouble to specify 25 days less than does not estop. the municipality from subseHenry & Emmer after the bids were opened, given, upon request, to any passenger who has

quently requiring that a transfer ticket be unless the difference in inspector's fees paid his fare, entitling him to a continuous would more than offset the 1 per cent. mar-ride, in either direction, on any railway intergin in their favor. It is obvious to us that secting or connecting with the line upon which

such transfer is to be given. the requirement that the number of working

TEd. Note.-For other cases, see Carriers, days be stated was material. If so, and if Cent. Dig. $$ 7-20; Dec. Dig. 12.*] the award of the contract was not discretionary, the award to Roscitt was irregular Certiorari prosecuted by the Public Servand must be set aside; for, if the require- ice Railway Company against the Board of ment is complied with in one case and may Public Utility Commissioners and another to be disregarded in another, the bidders are review an order requiring the prosecutor to

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

transfer passengers to intersecting or con- In this case the question at issue was the necting points. Order affirmed.

right of the city to reduce the fare to be Argued November term, 1911, before GAR-charged, which was fixed by the contract, RISON, PARKER, and BERGEN, JJ.

and the court in its opinion limited the pow

er to make further rules or regulations to Frank Bergen, for prosecutor. Joseph G. matters incident to the construction and opWolber and Frank H. Sommer, for defend-eration of the road, the repair of pavements, ants.

the removal or limitation of the number of

tracks, the frequency with which cars should BERGEN, J. This writ is brought to re- be run, the stopping of cars at street crossview an order of the board of public utility ings, the sale of tickets, "and generally to commissioners, requiring the prosecutor to details of the conduct or operations of the comply with an ordinance of the municipal railway which experience might show to be authorities, and in particular to desist, with- necessary," and for, among other things, in the city of Newark, "from refusing to the accommodation of the public and the give transfers upon any street railway line avoidance of injury to private property. intersecting or connecting with the line upon I am of opinion that the requirement rewhich such transfer was originally given." lating to transfers is a regulation which apThe order then proceeds to enumerate cer- pertains to the sale of tickets and the operatain connecting points at which a refusal tion of the railway, concerning its method to make transfers shall cease. From the of carrying passengers to their destination findings of the commission and the language for a single fare of five cents. What the used in the order, it seems that transfers prosecutor claims the right to do in such had been theretofore given, and the com- operation is to compel passengers to enter plaint is based upon the refusal to longer only such cars as would carry them to their continue the giving of transfers at certain destination without change, and this order points.

requires it to so operate its railway as to The precise question argued was: Must allow passengers to take any car going in a passenger wait for a particular car which the required direction, with the privilege of will carry him to his destination without transferring at intersecting points; and this change; or can he take any of prosecutor's is no invasion of any contract right, but cars, with the right to a transfer, at any a further regulation of the system of transconnecting or intersecting point, to another fers. The objection that the stopping of the of prosecutor's cars which will carry him to cars at intersecting points to permit these the same point he would have reached by transfers results in unnecessary cost and taking a car not requiring him to transfer? waste of power is more fanciful than real,

The first point made by the prosecutor is for in practice these cars usually stop at inthat the questions relating to transfers had tersecting points. been dealt with by previous ordinances The order under review does not violate which became contracts, not subject to fu- any contract right of the prosecutor, because ture regulations relating to transfers, al- the giving of transfers and the efficiency to though such ordinances contain the condi- be given them was within the reservation, tion, “subject, however, to any future regu- 'subject to any future regulations of the lations of the board."

board." The first ordinance relating to transfers The order will be affirmed was adopted December 29, 1892, which required the predecessors of the prosecutor to establish and maintain a system of transfers for a continuous ride, within the city

WILLIAMS v. YOUNG. limits, for a single fare, and to give and receive like transfers from the lines of other (Court of Errors and Appeals of New Jersey.

Nov. 21, 1910.) railway companies, and also provided that the ordinances should not be construed to 1. LANDLORD AND TENANT ($ 95*)-TERM FOR require transfers to be given to or from

YEARS – TRANSFER OB TERMINATION OF

LANDLORD'S ESTATE. lines running in the same direction and sub

Where a lessor conveys land to an innostantially parallel.

cent purchaser for value without notice of a If we assume that the ordinances are con- tenant's leasehold estate, the 'leasehold estate tracts between the city and the prosecutor, in the land is necessarily destroyed. it is nevertheless subject to "any future and Tenant, Cent. Dig. $8 300-304; Dec. Dig.

[Ed. Note.-For other cases, see Landlord regulations of the board,” and the point is $ 95.*] made by the prosecutor that such reserva- 2. LANDLORD AND TENANT (8 48*) - LANDtion is not broad enough to cover any change LORD'S CONVEYANCE OF LEASEHOLD-RECOVin the transfer requirements, and this con EBY OF RENT PAID.

Upon a landlord's wrongful conveyance to tention is said to be supported by the case

a bona fide purchaser without notice, of lands of Detroit v. Detroit Citizens' Railway Co., subject to a tenant's term for years, the ten184 U. S. 368, 22 Şup. Çt. 410, 46 L. Ed. 592. 'ant was entitled to recover in an action at law

N. J.)

WILLIAMS v. YOUNG

1119

based upon the landlord's implied contract to ant's right of action against the landlord for pay over the amount received for the term. the wrongful extinguishment of his term is to

[Ed. Note.- For other cases, see Landlord be regarded as accruing at the time of the conand Tenant, Cent. Dig. § 116; Dec. Dig. & veyance in determining the question of laches. 48.*]

[Ed. Note.-For other cases, see Landlord 3. LANDLORD AND TENANT ($ 48*)-TERM FOR and Tenant, Dec. Dig. $ 48.*]

YEARS – TERMINATION – BBEACH OF COVE-
NANT.

Appeal from Court of Chancery. Where a landlord extinguishes his tenant's Bill by Mary Williams against John L. term by a wrongful conveyance of the premises, Young, her lessor, to recover the value of a the tenant can maintain an action against him term wrongfully conveyed by him. Demurfor breach of the engagements in the lease.

AP. [Ed. Note.-For_other cases, see Landlord rer sustained, and plaintiff appeals. and Tenant, Cent. Dig. 88 114-116; Dec. Dig. & firmed. 48.*]

The following is the opinion of Vice Chan. 4. LANDLORD AND TENANT (§ 48*)-TERM FOR cellor Leaming: YEARS-LANDLORD'S CONVEYANCE OF TERM. Where a landlord extinguishes a tenant's

“I am unable to conclude that a court of term by a wrongful conveyance, the tenant has equity can properly entertain this bill. an action against him for damages to the value [1-7] “When defendant wrongfully conveyof the term, based upon the wrongful destruc-ed the land in question to an innocent pur. tion of his term.

[Ed. Note. For other cases, see Landlord chaser for value without notice of complainand Tenant, Cent. Dig. 88 114-116; Dec. Dig. ant's leasehold estate, the leasehold estate in § 48.*]

the land was necessarily destroyed. The ab5. Trusts (f. 105*)–CONSTRUCTIVE TRUSTS-solute and unrestricted title of such purLESSOR'S WRONGFUL CONVEYANCE OF TERM. chaser rendered the further existence of a

Where a lessor extinguishes his tenant's leasehold estate impossible. The conveyterm by a wrongful conveyance of the premises ance to the innocent purchaser was, in effect, and receives as consideration for the conveyance any property or money which can be so a conveyance of the term and the reversion. identified, à court of equity will entertain a bill Complainant thereby became entitled to reto impress a trust upon such property by de- cover from defendant in an action at law, claring the lessor a trustee ex maleficio of the property so held by him.

based upon the implied contract of defendant [Ed. Note.-For other cases, see Trusts, to pay to complainant the money had and Cent. Dig. 8 156; Dec. Dig. & 105.*]

received for his use, such amount as was received by defendant for the term.

Or com6. EQUITY (8 15*)-JURISDICTION — INJURIES TO PROPERTY RIGHTS.

plainant could have maintained against deWhere a landlord extinguishes his tenant's fendant an action for breach of the engageterm by a wrongful conveyance of the premises ments in the lease, or for damages based upand receives specific property or profits therefrom, a court of equity may enforce an account- on the tort consisting of the wrongful deing, but, in the absence of specific profits or struction of complainant's term, and thus assets to be sequestered, will not assume juris- recovered the value of the term. Had de diction to ascertain the quantum of damages fendant received as consideration for the suffered by the tenant.

[Ed. Note.-For other cases, see Equity, conveyance of the term any property or mon. Cent. Dig. $$ 27–36; Dec. Dig. § 15.*]

ey which could be so identified, a court of

. 7. SPECIFIC PERFORMANCE (13*)-DEFENSES equity would have entertained a bill to im-PERFORMANCE IMPOSSIBLE.

press a trust upon such property by declar. Where it appears from the averments of a ing defendant a trustee ex maleficio of the bill against a landlord who has wrongfully con property so held by him. But, in the abveyed and extinguished his tenant's term that sence of specific property to be sequestered, I specific performance of the contract of lease is sence of specific property to be sequestered, I then impossible, the bill will not be entertained. am unable to discern the propriety of a court

[Ed. Note.-For other cases, see Specific Per- of equity assuming jurisdiction for the pur. formance, Cent. Dig. 88 30-32; Dec. Dig. 8 pose of merely ascertaining the quantum of 13.*]

damages suffered by complainant by reason 8. LANDLORD AND TENANT ($ 95*)-LESSOR's of the wrongful conduct of defendant. See

CONVEYANCE OF TERM-EFFECT OF LESSEE'S 3 Pomeroy's Equity Jurisprudence, $ 1051. I SUBSEQUENT PAYMENTS.

Payments made by the lessee of a term am aware of no infirmity in the rule of proafter its extinguishment by the lessor's wrong-cedure of the courts of law for the accomful conveyance are ineffectual to charge the plishment of that purpose. The theory of land with the burden of the term, or for any the bill appears to be that the equitable docpurpose. [Ed. Note.-For other cases, see Landlord trustee includes the obligation on his part to

trine that defendant may be charged as a and Tenant, Dec. Dig. $ 95.*] 9. LANDLORD AND TENANT (8 48*)-LESSOR'S Where a defendant in possession of property

render an accounting in a court of equity. WRONGFUL CONVEYANCE OF TERM-ACTION -LACHES.

as an equitable trustee derives profits from Where a landlord wrongfully conveyed its commercial operation, a court of equity land in which a tenant has a term to a bona might appropriately enforce an accounting fide purchaser for value and without notice of the term, thereby extinguishing the term and touching such profits; but the averments of the relation of landlord and tenant, the ten-1 the present bill disclose that the leasehold

•For other cases see samo topic and section NUMBER iņ 1.c. Dig. & Am. Dig. Key No. Series & Rep'r Indoxes

estate of complainant was in effect destroyed plainant's) property rights. The lease was by a conveyance from defendant to innocent not under seal. purchasers for value without notice. It is "I will advise an order sustaining the denot claimed that defendant received any murrer.” profits from the enjoyment or operation of

John J. Crandall and Herbert A. Drake, complainant's leasehold estate, other than for appellant. Clarence L. Cole, for respondsuch amount of money as he may have re

ent. ceived by the absolute conveyance in excess of the amount that could have been obtained

PER CURIAM. The decree appealed from by a conveyance of the reversion only. Nor is affirmed for the reasons stated in the opindoes the bill suggest the existence of any presion of Vice Chancellor Leaming. ent assets which are the fruits of the conveyance. The alternative prayer that defendant be required to furnish to complain

(79 N. J. E. 142, 222) ant a similar leasehold estate in some other similar location cannot be entertained. Such TAYLOR PROVISION CO. V. EDWARDS. a decree could not be enforced. By the aver-(Court of Errors and Appeals of New Jersey. ments of the bill it fully appears that the

Nov. 20, 1911.) specific performance of the contract of lease 1. TRADE-MARKS AND TRADE-NAMES (8 95*)

IMITATION-PRELIMINARY INJUNCTION. is now impossible.

Defendant having been restrained by pre[8, 9] "I also incline to the view that the liminary injunction from selling his food product bill presents a stale claim. If the leasehold as “Rolled Pork,” in imitation of plaintiff's estate of complainant in the land was extin- product, plaintiff put out a new brand, under

a label corresponding with that which he had guished by the conveyance made by defend- been using, and labeled it "Trenton Pork Roll." ant to an innocent purchaser for value with. Defendant, closely copying this label, put forth out notice, complainant's right of action a brand labeled "Trenton Style Pork Roll." against defendant arising from the wrongful entitled to preliminary injunction as to this

Held, on supplemental bill, that plaintiff was act of extinguishment accrued at that time, or product. at the time that defendant's conduct rendered [Ed. Note. For other cases, see Trade-Marks it impossible for him to perform his contrac- and Trade-Marks, Cent. Dig. '$ 108; Dec. Dig. tual obligations arising from the lease. The

§ 95.*] subsequent payments or tender of payments 2. TRADE-MARKS AND TRADE-NAMES (8 81*)to defendant of the annual rentals called for

IMITATION-INJUNCTION.

There is no arbitrary period during and by the lease could not be operative to charge over which a brand must be sold and advertised the land with the burden of the term. AS- to entitle the complainant to an injunction suming complainant's right to elect to keep against imitators, but the question of time is

always one to be considered in connection with the contractual obligations of defendant aris- all the facts of a given case. ing under the lease alive by making or ten [Ed. Note. For other cases, see Trade Marks dering the annual payments and constantly and Trade-Names, Cent. Dig. 891; Dec. Dig. demanding of defendant an enjoyment of the $ 81.*] term, it seems manifest that after the estate 3. TRADE-MARKS AND TRADE-NAMES ($ 67*)— of complainant in the land became extin

IMITATION-INJUNCTION.

Complainant had established a reputation guished as an estate, and after it became for its "prepared ham” for years before the deadmittedly impossible for defendant to dis- fendant entered the trade; and therefore, when' charge the contractual obligations of the the complainant was obliged to change the name lease, future payments and demands were in- else, under the federal pure food law, such

of its brand from "prepared ham" to something effective for any purpose. The leasehoid es-change was equivalent to putting out a tate of complainant in the land was destroy- brand, concerning which he was entitled to be ed and could not be restored. As between protected from simulation. complainant and defendant the relation of

[Ed. Note.-For other cases, see Trade Marks landlord and tenant existed in form only. I and Trade-Names

, Cent. Dig. $ 78; Dec. Dig. 8

*] The conception of the relation of landlord and tenant without a term or reversion is

Appeal from Court of Chancery. impossible. Defendant had broken all of his

Bill by the Taylor Provision Company obligations arising from the lease and had against Andrew H. Edwards. From a de

Afrendered it impossible for him to discharge cree for plaintiff, defendant appeals. them. Under these conditions the right of

firmed. action of complainant against defendant for The following are the opinions of Walker, such injuries as resulted from the wrongful v. C., in the court below: destruction of the leasehold estate accrued, and relief should be sought with reference "On Application for Preliminary Injunction. to the period when the conditions above stat "My examination of this matter has led ed arose. The theory of the bill is the re- me to the conclusion that the complainant is covery of the value of the lease as of the entitled to a preliminars injunction accorddate of the 'wrongful usurpation and dispos- ing to the prayer of its supplemental bill. ing of said Young (defendant) of her (com [1, 2] “The defendant was restrained by

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PHILLIPSBURG HORSE CAR R. CO. v. STATE BOARD OF ASSESSORS

1121

preliminary injunction issued on the original | 22, 1910, affirmed, with modification; s. C., U. bill, and was ordered to desist from selling s. Circuit Court of Appeals,. Second Circuit, and advertising his food product as 'Rolled 183 Fed. 99, 105 C. C. A. 391. Pork,' in a style and manner similar to the [3] "The doctrine that a trader is to be labeling of the packages containing the com- protected from unfair competition is one plainant's product. After the issuance of the which fully obtains in this state, and it is injunction the complainant put a new brand upon this principle, and not for the protecon the market, and labeled it "Trenton Pork tion of a registered trade-mark, that the inRoll.' The defendant, within two weeks junction will go in this case. after the complainant's new brand appeared, “Although the complainant may not have put out a new brand himself, which he label- been in the market with its brand, labeled ed 'Trenton Style Pork Roll.' He claims 'pork roll,' for a sufficient length of time, if not to have copied the complainant's label, at all, before the defendant marketed his but that he has closely copied it seems too product as 'rolled pork' to entitle it to enplain for argument. He may have thought join the defendant for that reason, neverthethat by labeling his packages "Trenton Style less the proofs show that the complainant Pork Roll' he had closely enough copied had established a reputation for its ‘prepar"Trenton Pork Roll' to deceive the public ed ham' for years before the defendant eninto the belief that his goods were those of tered the trade; and therefore, when the the complainant, but by the use of the word complainant was obliged to change the name 'style' had sufficiently departed from the of its brand from 'prepared ham' to somecomplainant's label so as not to bring him- thing else, under the federal pure food law, self within the ban of the law. But in this such change was equivalent to putting out a he is, to say the least, mistaken. The adju- new brand, concerning which the trader is dications are clearly against him. In many entitled to be protected from simulation by instances in which injunctions have gone to another dealer. Florence Mfg. Co. v. J. C. restrain unfair competition, the dissimilari- Dowd & Co., supra, at page 75 of 178 Fed. ty in names and style of advertising have "The complainant is entitled to costs." been far greater than in the case at bar. The matter now under consideration is not one Scammell, for respondent.

Linton Satterthwait, for appellant. Scott

. in which the complainant has put an entirely new article upon the market, with a distinctive label, but one in which he has sim- will be affirmed for the reasons stated in the

PER CURIAM. The decree appealed from ply put out a new brand under a label cor- opinion filed in the court below by Vice Chanresponding with that which he has used for

cellor Walker. years, with a proper and apt word to distinguish it from the older and original brand which the defendant has already been enjoin

(82 N. J. L. 49) ed from imitating. There is no arbitrary pe PHILLIPSBURG HORSE CAR R. CO. v. riod during and over which a brand must be STATE BOARD OF ASSESSORS sold and advertised to entitle the complainant

et al. to an injunction against imitators, but the

(Supreme Court of New Jersey. Dec. 19, question of time is always one to be consider

1911.) ed in connection with all the facts of a given case; and in this case, as the label under con

(Syllabus by the Court.) sideration is only an appropriate label for a 1. TAXATION ($ 394*)-ASSESSMENTS-STATUnew brand of an old article, its piracy must

TORY PROVISIONS.

Sections 4 and 5 of chapter 290 of the be restrained.

Laws of 1906 (P. L. pp. 645, 646) require the

state board of assessors to levy an annual fran“On Final Hearing on Pleadings and Proofs. chise tax upon such proportion of the annual “My examination of this case has led me gross receipts of a street railroad corporation

as the length of its line in this state upon any to the conclusion that the complainant is en- street, highway, road, lane, or other public titled to a permanent injunction against the place bears to the length of its whole line. defendant in the combined form of the pre [Ed. Note.-For other cases, see Taxation, liminary injunctions heretofore issued in this Dec. Dig. $ 394.*] cause, one on the original bill, and the other 2. COMMERCE ($_70*)–MEANS OF REGULATION on the supplemental bill.

-FRANCIJISE Tax.

The annual franchise tax which sections “The following cases are particularly ap- 4 and 5 of chapter 290 of the Laws of 1906 posite, and, in my judgment, sustain the com- (P. L. pp. 645, 646) require the state board of plainant's position: American, etc., Watch assessors to levy upon such proportion of the Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. poration as the length of its line in this state

annual gross receipts of a street railroad corE. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; upon any street, highway, road, lane, or other Florence Mfg. Co. v. J. C. Dowd & Co., 178 public place bears to the length of its whole Fed. 73, 101 C. C. A. 565; William Wrigley, line is not levied on the gross receipts of the

corporation, nor on the business of the corJr., & Co. v. Grove Company, U. S. Circuit poration, but is merely an excise tax on the Court, Southern District of New York, April franchises of the corporation, viz., the fran*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Lig. Key No. Series & Rep'r Indexes

81 A.-71

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