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tions as the council may prescribe, and “upon the coming in of such proposals the Council may enter into COntract With the lowest responsible bidders on the terms of their proposals.” The council is authorized to reject all the bids and readvertise, but no such action Was taken. What happened was this: Bids were advertised for, to be Submitted on blank forms furnished by the town, and based on plans and Specifications filed in the office of the town clerk. The bids Were to be in the form of a percentage of a standard of cost stated in the specifications. In the advertisement it is stated that bidders Will also State the number of Working days they Will require to Complete the WOrk, and the specifications contain this clause: “In submitting their bids or estimates, bidders Will bid a percentage Of the above standard of prices, and will also state the number of working days they will require to complete the Work, Which Statement, based upon the wages due the inspectors, Will figure as one of the items.” 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 a Warded to him. 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 plain from a reading of the clause quoted from the Specifications that this is made up of two elements, viz., percentage of engineer'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 m0re 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
PUBLIC SERVICE RY. CO. V. BOARD OF PUBLIC UTILITY COM’RS
not on the same footing. Case V. Trenton, 47 N. J. Law, 696, 74 Atl. 672.
But it is further urged that the town Was not required, under the terms of section 64 as amended, to award the contract to the lowest responsible bidder, or upon the terms and conditions prescribed for bidders. The argument seems to be that, because the council may enter into contract, with the lowest responsible bidders “on the terms of their proposals,” it is authorized to accept a proposal Varying materially as to performance of the Work provided the amount Of the bid be Satisfactory. But We Can draw no such meaning from this language. The effect of So doing Would be to enable each bidder to draw his OWn Contract and specifications and make competitive bidding a farce. It is not seriously claimed that an absolute discretion to aWard COntractS is vested in the council, or that the word “may” is not imperative rather than permissive. We have no doubt that it is tantamount 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 percentage of standard and number of Working dayS.
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.
*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
necting points. Order affirmed. Argued November term, 1911, before GAR
RISON, PARKER, and BERGEN, J.J.
Frank Bergen, for prosecutor. Joseph G. Wolber and Frank H. Sommer, for defendantS.
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 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.” 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 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.
In this case the question at issue was the 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 matters incident to the construction and Operation of the road, the repair of pavements, 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.
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 for a Single fare Of five CentS. What the 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 m0re fanciful than real, for in practice these CarS usually Stop at intersecting points.
The Order under TeView 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.
(Court of Errors and Appeals of New Jersey. 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. [Ed. Note.—For other cases, see Landlord # £nant Cent. Dig. §§ 300–304; Dec. Dig. 0. 2. LANDLORD AND TENANT (§ 48*) – LANDLoRD's CoNVEYANCE OF LEASEIIoLD-RECOVERY OF RENT PAID. Upon a landlord's wrongful conveyance to a bona fide purchaser without notice, of lands subject to a tenant's term for years, the tenant was entitled to recover in an action at law
WILLIAMS V. YOUNG
ant's right of action against the landlord for the wrongful extinguishment of his term is to be regarded as accruing at the time of the conveyance in determining the question of laches.
[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 48.*]
Appeal from Court of Chancery.
Bill by Mary Williams against John L. Young, her lessor, to recover the value of a term Wrongfully conveyed by him. Demurrer Sustained, and plaintiff appeals. Affirmed.
The following is the opinion of Vice Chancellor Leaming:
“I am unable to conclude that a court of equity can properly entertain this bill.
[1-7]. “When defendant Wrongfully conveyed the land in question to an innocent purchaser for value without notice of complainant's leasehold estate, the leasehold estate in the land WaS necessarily destroyed. The absolute and unrestricted title of such purchaser rendered the further existence of a leasehold estate impoSSible. The Conveyance to the innocent purchaser was, in effect, a conveyance of the term and the reversion. Complainant thereby became entitled to reCOVer from defendant in an action at law, based upon the implied contract of defendant to pay to complainant the money had and received for his uSe, Such amount aS WaS received by defendant for the term. Or complainant could have maintained against defendant an action for breach Of the engagements in the lease, or for damages based upon the tort consisting of the Wrongful destruction of complainant's term, and thus TeCOWered the Value Of the term. Had defendant received as consideration for the conveyance of the term any property Or money Which could be SO identified, a Court of equity would have entertained a bill to impress a trust upon Such property by declaring defendant a trustee ex maleficio of the property so held by him. But, in the absence of specific property to be sequestered, I am unable to discern the propriety Of a Court Of equity aSSuming jurisdiction for the purpose of merely ascertaining the quantum of damageS Suffered by complainant by reason Of the Wrongful Conduct of defendant. See 3 Pomeroy’s Equity Jurisprudence, § 1051. I am aware of no infirmity in the rule of proCedure Of the COurtS Of law for the acCOmplishment of that purpose. The theory of the bill appears to be that the equitable doctrine that defendant may be charged as a trustee includes the obligation on his part to render an accounting in a court of equity. Where a defendant in possession of property as an equitable trustee derives profits from its commercial operation, a court of equity might appropriately enforce an accounting touching Such profits; but the averments of the present bill disclose that the leasehold estate of complainant was in effect destroyed by a conveyance from defendant to innocent purchasers for Value without notice. It is Inot claimed that defendant received any profits from the enjoyment or operation of complainant's leasehold estate, other than Such amount of money as he may have received 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 COn Veyance 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 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 extinguished as an estate, and after it became admittedly impossible for defendant to disCharge the Contractual ObligationS Of the lease, future payments and demands were ineffective for any purpose. The leasehold estate of complainant in the land was destroyed and could not be restored. AS between 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
*For other cases see same topic and section NUMBER in L -c. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
plainant's) property rights. The lease was not under seal. “I Will advise an order sustaining the demurrer.”
John J. Crandall and Herbert A. Drake, for appellant. Clarence L. Cole, for respondent.
PER, CURIAM. The decree appealed from is affirmed for the reasons stated in the opinion of Vice Chancellor Leaming.
(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.” Held, on supplemental bill, that plaintiff was entitled to preliminary injunction as to this 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 ##"Name". Cent. Dig. § 91; Dec. Dig.
3. TRADE-MARKS AND TRADE-NAMEs (§ 67*)IMITATION-INJUNCTION. 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 he was entitled to be protected from simulation.
[Ed. Note.—For other cases, see Trade-Marks # #". Cent. Dig. $ 78; Dec. Dig. §
Appeal from Court of Chancery.
Bill by the Taylor Provision Company against Andrew H. Edwards. From a decree for plaintiff, defendant appeals. Affirmed.
The following are the opinions of Walker, W. 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 preliminary injunction issued On the Original bill, and was ordered to desist from selling and advertising his food product as ‘Rolled 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 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 dissilmilarity 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.
N.J.) PHILLIPSBURG HORSE CAR. R. CO. v. STATE BOARD OF ASSESSORS 1121
“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. W. Grove Company, U. S. Circuit Court, Southern District of New York, April
22, 1910, affirmed, with modification; S. C., U. S. Circuit Court of Appeals, Second Circuit, 183 Fed. 99, 105 C. C. A. 391. . “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 in. junction 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. Florence Mfg. Co. v. J. C. Dowd & Co., Supra, at page 75 of 178 Fed. “The complainant is entitled to costs.” Linton Satterthwait, for appellant. Scott Scammell, for respondent.
2. CoMMERCE ($ 70*)—MEANs of REGULATION —FRANCIIISE 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 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 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