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 perWe have no doubt that it is taned upon the wages due the inspectors, will missive. figure as one of the items." tamount to "shall," and that, as the act requires the bids to be presented "in such form and manner and under such regulations as the council shall prescribe," the adoption of a standard contract and specifications as a basis for bidding is not only proper but necessary, and the terms of the proposals must necessarily conform to those of the contract and specifications, and the only terms that could be varied by bidders under the evidence in this case were the of standard and number of percentage of standard working days.

There were a number of bidders, but we are concerned at present only with the two lowest in percentage. Roscitt bid 68 per cent., but stated no time of completion. Henry & Emmer, the original prosecutors, bid 69 per cent. and offered to complete in 200 working days. This was on June 6th. On June 15th Roscitt sent in a communication stating that his omission to state the number of working days was due to his being misled by the blank form, and stating 175 days as the time required for completion, and on the 20th the contract was awarded to him.

We conclude, therefore, that the bid of Roscitt was irregular, and the award of the contract to him was illegal and must be set

aside.

It is urged that the requirement of number of working days was an immaterial one and should not affect the validity of a bid; but we think differently. What the town wanted was the lowest total cost; and it is PUBLIC SERVICE RY. CO. v. BOARD OF plain from a reading of the clause quoted from the specifications that this is made up

of two elements, viz., percentage of engi

(82 N. J. L. 312)

PUBLIC UTILITY COM'RS et al.

(Supreme Court of New Jersey. Dec. 26, 1911.)
(Syllabus by the Court.)
CARRIERS ($ 12*). REGULATIONS STREET

RAILROADS TRANSFERS.

-

An ordinance granting to a company the right to construct and operate a street railprovides for a system of transferring passengers, way along the public streets of a city which "subject to any future regulations of the board," does not estop the municipality from subsequently requiring that a transfer ticket be given, upon request, to any passenger who has paid his fare, entitling him to a continuous ride, in either direction, on any railway intersecting or connecting with the line upon which such transfer is to be given.

neer's standard, and cost of inspection, and that a lower per cent. might well make a higher bid when combined with a larger number of working days. The engineer's figures constituting the base of the percentage calculation are not before us; but it is safe to say that Roscitt would not have taken the trouble to specify 25 days less than Henry & Emmer after the bids were opened, unless the difference in inspector's fees would more than offset the 1 per cent. margin in their favor. It is obvious to us that the requirement that the number of working days be stated was material. If so, and if the award of the contract was not discretionary, the award to Roscitt was irregular and must be set aside; for, if the requirement is complied with in one case and may be disregarded in another, the bidders are For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]

Certiorari prosecuted by the Public Service Railway Company against the Board of Public Utility Commissioners and another to review an order requiring the prosecutor to

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

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

right of the city to reduce the fare to be charged, which was fixed by the contract, and the court in its opinion limited the power 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 be run, the stopping of cars at street crossings, the sale of tickets, "and generally to details of the conduct or operations of the railway which experience might show to be necessary," and for, among other things, the accommodation of the public and the avoidance of injury to private property.

BERGEN, J. This writ is brought to review an order of the board of public utility commissioners, requiring the prosecutor to comply with an ordinance of the municipal authorities, and in particular to desist, within the city of Newark, "from refusing to give transfers upon any street railway line intersecting or connecting with the line upon which such transfer was originally given." The order then proceeds to enumerate certain connecting points at which a refusal to make transfers shall cease. From the findings of the commission and the language for a single fare of five cents. What the used in the order, it seems that transfers had been theretofore given, and the complaint is based upon the refusal to longer continue the giving of transfers at certain points.

The precise question argued was: Must a passenger wait for a particular car which will carry him to his destination without change; or can he take any of prosecutor's cars, with the right to a transfer, at any connecting or intersecting point, to another of prosecutor's cars which will carry him to the same point he would have reached by taking a car not requiring him to transfer? The first point made by the prosecutor is that the questions relating to transfers had been dealt with by previous ordinances which became contracts, not subject to future regulations relating to transfers, although such ordinances contain the condition, "subject, however, to any future regulations of the board."

I am of opinion that the requirement relating to transfers is a regulation which appertains to the sale of tickets and the operation of the railway, concerning its method of carrying passengers to their destination

prosecutor claims the right to do in such operation is to compel passengers to enter only such cars as would carry them to their destination without change, and this order requires it to so operate its railway as to allow passengers to take any car going in the required direction, with the privilege of transferring at intersecting points; and this is no invasion of any contract right, but a further regulation of the system of transfers. The objection that the stopping of the cars at intersecting points to permit these transfers results in unnecessary cost and waste of power is more fanciful than real, for in practice these cars usually stop at intersecting points.

The order under review does not violate any contract right of the prosecutor, because the giving of transfers and the efficiency to be given them was within the reservation, "subject to any future regulations of the board."

The order will be affirmed.

WILLIAMS v. YOUNG.

The first ordinance relating to transfers 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 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. railway companies, and also provided that the ordinances should not be construed to require transfers to be given to or from lines running in the same direction and substantially parallel.

If we assume that the ordinances are contracts between the city and the prosecutor, it is nevertheless subject to "any future regulations of the board," and the point is made by the prosecutor that such reservation is not broad enough to cover any change in the transfer requirements, and this contention is said to be supported by the case of Detroit v. Detroit Citizens' Railway Co., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592.

Nov. 21, 1910.)

1. LANDLORD AND TENANT (§ 95*)-TERM FOR YEARS TRANSFER OR TERMINATION OF LANDLORD'S ESTATE.

Where a lessor conveys land to an innocent purchaser for value without notice of a tenant's leasehold estate, the leasehold estate in the land is necessarily destroyed. and Tenant, Cent. Dig. §§ 300-304; Dec. Dig. [Ed. Note.-For other cases, see Landlord § 95.*]

2. LANDLORD AND TENANT (8 48*)-LANDLORD'S CONVEYANCE OF LEASEHOLD-RECOVERY OF RENT PAID.

a bona fide purchaser without notice, of lands Upon a landlord's wrongful conveyance to subject to a tenant's term for years, the tenant was entitled to recover in an action at law

WILLIAMS v. YOUNG

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.*]

Where a landlord extinguishes a tenant's term by a wrongful conveyance, the tenant has an action against him for damages to the value of the term, based upon the wrongful destruc-ed the land in question to an innocent pur

For other cases see same topic and section NUMBER in 1.c. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

"I will advise an order sustaining the demurrer."

PER CURIAM. The decree appealed from is affirmed for the reasons stated in the opinion of Vice Chancellor Leaming.

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 not claimed that defendant received any 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 by a conveyance of the reversion only. Nor does the bill suggest the existence of any present assets which are the fruits of the conveyance. The alternative prayer that defendant be required to furnish to complainant a similar leasehold estate in some other similar location cannot be entertained. Such a decree could not be enforced. By the averments of the bill it fully appears that the specific performance of the contract of lease is now impossible.

[8, 9] "I also incline to the view that the bill presents a stale claim. If the leasehold estate of complainant in the land was extinguished by the conveyance made by defendant to an innocent purchaser for value without notice, complainant's right of action against defendant arising from the wrongful act of extinguishment accrued at that time, or at the time that defendant's conduct rendered it impossible for him to perform his contractual obligations arising from the lease. The subsequent payments or tender of payments

(79 N. J. E. 142, 222)

TAYLOR PROVISION CO. v. EDWARDS. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.)

1. TRADE-MARKS AND TRADE-NAMES (§ 95*)— IMITATION-PRELIMINARY INJUNCTION.

Defendant having been restrained by preliminary injunction from selling his food product as "Rolled Pork," in imitation of plaintiff's product, plaintiff put out a new brand, under a label corresponding with that which he had been using, and labeled it "Trenton Pork Roll." Defendant, closely copying this label, put forth a brand labeled "Trenton Style Pork Roll." entitled to preliminary injunction as to this Held, on supplemental bill, that plaintiff was product.

[Ed. Note. For other cases, see Trade-Marks and Trade-Marks, Cent. Dig. § 108; Dec. Dig. $95.*]

2. TRADE-MARKS AND TRADE-NAMES (§ 81*)

IMITATION-INJUNCTION.

There is no arbitrary period during and over which a brand must be sold and advertised to entitle the complainant to an injunction against imitators, but the question of time is always one to be considered in connection with all the facts of a given case.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 91; Dec. Dig. § 81.*]

3. TRADE-MARKS AND TRADE-Names (§ 67*)— IMITATION INJUNCTION.

to defendant of the annual rentals called for by the lease could not be operative to charge the land with the burden of the term. Assuming complainant's right to elect to keep the contractual obligations of defendant arising under the lease alive by making or tendering the annual payments and constantly demanding of defendant an enjoyment of the term, it seems manifest that after the estate of complainant in the land became extinComplainant 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- of its brand from "prepared ham" to something else, under the federal pure food law, such effective for any purpose. The leasehoid es- change was equivalent to putting out a new 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

landlord and tenant existed in form only. The conception of the relation of landlord and tenant without a term or reversion is impossible. Defendant had broken all of his obligations arising from the lease and had rendered it impossible for him to discharge them. Under these conditions the right of action of complainant against defendant for such injuries as resulted from the wrongful destruction of the leasehold estate accrued, and relief should be sought with reference to the period when the conditions above stated arose. The theory of the bill is the recovery of the value of the lease as of the date of the 'wrongful usurpation and disposing of said Young (defendant) of her (com

[Ed. Note.-For other cases, see Trade-Marks

and Trade-Names, Cent. Dig. § 78; Dec. Dig. § 67.*1

Appeal from Court of Chancery.

Bill by the Taylor Provision Company against Andrew H. Edwards. cree for plaintiff, defendant appeals.

firmed.

Af

The following are the opinions of Walker, V. C., in the court below:

"On Application for Preliminary Injunction.

"My examination of this matter has led me to the conclusion that the complainant is entitled to a preliminary injunction according to the prayer of its supplemental bill.

[1, 2] "The defendant was restrained by

N. J.)

1121

[3] "The doctrine that a trader is to be protected from unfair competition is one which fully obtains in this state, and it is upon this principle, and not for the protection of a registered trade-mark, that the injunction will go in this case.

"Although the complainant may not have been in the market with its brand, labeled 'pork roll,' for a sufficient length of time, if at all, before the defendant marketed his product as 'rolled pork' to entitle it to enjoin the defendant for that reason, nevertheless the proofs show that the complainant had established a reputation for its 'prepared ham' for years before the defendant entered the trade; and therefore, when the complainant was obliged to change the name of its brand from 'prepared ham' to something else, under the federal pure food law, such change was equivalent to putting out a new brand, concerning which the trader is entitled to be protected from simulation by another dealer. another dealer. Florence Mfg. Co. v. J. C. Dowd & Co., supra, at page 75 of 178 Fed. "The complainant is entitled to costs."

PHILLIPSBURG HORSE CAR R. Co. v. STATE BOARD OF ASSESSORS 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 labeling of the packages containing the complainant's product. After the issuance of the injunction the complainant put a new brand on the market, and labeled it "Trenton Pork Roll.' The defendant, within two weeks after the complainant's new brand appeared, put out a new brand himself, which he labeled "Trenton Style Pork Roll.' He claims He claims not to have copied the complainant's label, but that he has closely copied it seems too plain for argument. He may have thought that by labeling his packages "Trenton Style Pork Roll' he had closely enough copied "Trenton Pork Roll' to deceive the public into the belief that his goods were those of the complainant, but by the use of the word 'style' had sufficiently departed from the complainant's label so as not to bring himself within the ban of the law. But in this he is, to say the least, mistaken. The adjudications are clearly against him. In many instances in which injunctions have gone to restrain unfair competition, the dissimilarity in names and style of advertising have been far greater than in the case at bar. The matter now under consideration is not one in which the complainant has put an entirely new article upon the market, with a distinctive label, but one in which he has simply put out a new brand under a label corresponding with that which he has used for years, with a proper and apt word to distinguish it from the older and original brand which the defendant has already been enjoined from imitating. There is no arbitrary period during and over which a brand must be sold and advertised to entitle the complainant to an injunction against imitators, but the question of time is always one to be considered in connection with all the facts of a given case; and in this case, as the label under consideration is only an appropriate label for a new brand of an old article, its piracy must be restrained.

"On Final Hearing on Pleadings and Proofs. "My examination of this case has led me to the conclusion that the complainant is entitled to a permanent injunction against the defendant in the combined form of the preliminary injunctions heretofore issued in this cause, one on the original bill, and the other on the supplemental bill.

"The following cases are particularly apposite, and, in my judgment, sustain the complainant's position: American, etc., Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Florence Mfg. Co. v. J. C. Dowd & Co., 178 Fed. 73, 101 C. C. A. 565; William Wrigley, Jr., & Co. v. Grove Company, U. S. Circuit Court, Southern District of New York, April

Linton Satterthwait, for appellant. Scott Scammell, for respondent.

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chan

cellor Walker.

1.

(82 N. J. L. 49) PHILLIPSBURG HORSE CAR R. CO. v. STATE BOARD OF ASSESSORS et al.

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

(Syllabus by the Court.)

TAXATION (§ 394*)-ASSESSMENTS-STATU-
TORY PROVISIONS.

Sections 4 and 5 of chapter 290 of the Laws of 1906 (P. L. pp. 645, 646) require the state board of assessors to levy an annual franchise tax upon such proportion of the annual gross receipts of a street railroad corporation as the length of its line in this state upon any street, highway, road, lane, or other public place bears to the length of its whole line.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. § 394.*]

2. COMMERCE (8 70*)-MEANS OF REGULATION -FRANCHISE TAX.

The annual franchise tax which sections 4 and 5 of chapter 290 of the Laws of 1906 (P. L. pp. 645, 646) require the state board of assessors to levy upon such proportion of the poration as the length of its line in this state annual gross receipts of a street railroad corupon any street, highway, road, lane, or other public place bears to the length of its whole line is not levied on the gross receipts of the corporation, nor on the business of the corporation, but is merely an excise tax on the franchises of the corporation, viz., the fran

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-71