and that unless they found she did hear it they are admissible to establish the character of should disregard such statements. the house, irrespective of whether the alleged keeper was present or not. Error to Court of Quarter Sessions, Essex County. Kate Morris was convicted of maintaining a house of ill fame, and brings error. firmed. The scope of the rule is more fully indicated in the earlier case of State v. Sweet, 81 N. J. Law, 250, 79 Atl. 1054, where it is statAf-ed that, although it is entirely settled that language used by the inmates of a house charged to be disorderly may be evidential respecting the character of the house, such defendant, must be of itself disorderly, or language, unless used in the hearing of the must be used in connection with acts which, Argued June term, 1919, before GUMMERE, C. J., and MINTURN and BLACK, JJ. Frank M. McDermit, of Newark, for plain tiff in error. J. Henry Harrison, Prosecutor of the Pleas, and John A. Bernhard, Asst. Prosecutor of the Pleas, both of Newark, for the State. GUMMERE, C. J. Plaintiff in error was indicted for the keeping of a disorderly house; the specific charge being that she maintained a house of ill fame at 371 Halsey street, in the city of Newark. At the trial the jury found her guilty of this offense, and the judgment entered upon that verdict has been removed here for review. together with the language, exhibit disorderly conduct. It may be conceded, for the purposes of the case, that the statements of the Webb woman and of Buzzene, so far as they related to their illicit intercourse, were so closely connected with the act itself (appara part thereof, and so within the rule of the ently interrupted, or just completed) as to be cases cited. But manifestly the woman's subsequent statement that she had had illicit relations with other men-necessarily earlier fendant the moneys she had received from in the day-and had divided with the dethem, was not admissible, under the doctrine of State v. Sweet and State v. Littman. It was not descriptive of the character of any present act which had come under the observation of the witness, nor was it explanatory of any such act. On the contrary, it referred to alleged antecedent acts of which the witness had no knowledge, and which, so far as he knew, might never have occurred. [1] It appears from the proofs in the case that on the 5th of October, 1918, the police of Newark raided the defendant's place, and arrested her and two other parties found there -a woman named Webb and a man named Buzzene. These two were taken into custody by Officer Gray, who testified that they came into the sitting room from an adjoining bedroom, and their apparel appeared to have been in such a condition as at least to justify a suspicion that they had just been engaged in sexual intercourse. At the time they came [2, 3] But, although this testimony did not into the sitting room the defendant was in come within the doctrine of these cases, it the hall, in charge of another officer, and as ought not for that reason to have been exGray testified, within about 10 feet of him- cluded. The statement, if true, demonstratself, the woman Webb, and Buzzene. Gray ed that the defendant was guilty of the asked Buzzene what he was doing there; the charge laid against her in the indictment. latter replied that he had gone there to have At the time it was made she was standing a good time, and that he had paid $3. He within 10 feet of Officer Gray and the Webb then questioned the woman, and she said that woman, apparently near enough to have she had had intercourse with Buzzene, and heard it. It is true that Officer Gray, in one that he gave her $3 for it; that she went part of his testimony, says that the defendfifty-fifty with the madam; and (in response ant did not hear the conversation; but it to further questioning) that she had had is plain that this was merely the expression about 10 men that day, and that she went of an opinion on his part. If the defendant, fifty-fifty with the madam of the house. All in fact, heard the conversation, and said of this testimony was objected to by counsel for the defendant upon the ground that the conversation did not take place in the presence of his client. The objection was overruled; the theory of the trial court being that it was immaterial whether the defendant was or was not present, for the reason that the conversation tended to establish the character of the house. This ruling was based upon the court's understanding of our decision in State v. Littman, 86 N. J. Law, 453, 92 Atl. 580, where we said that, on the trial of an indictment for keeping a disorderly house, acts of a disorderly character by persons in the house, and what was said nothing by way of denial or contradiction of the charge contained in it, that fact clearly was one for the jury to consider; and where the situation of the parties is such that the defendant might have heard the conversation, the question of whether she did, or whether she did not, must be settled by the jury under all the circumstances of the case. In State v. Rosa, 72 N. J. Law, 462, 62 Atl. 695, it was held by the Court of Errors and Appeals that in the trial of a criminal case a statement made by one person to another in the presence of the defendant relating to the offense with which the latter is charged, and which injuriously affected him, is competent (108 A.) or in his hearing; and when his position with relation to the speaker is such that he might have heard it, it is for the jury to determine from the facts in the case whether he did. [4] We conclude, therefore, that the testimony was properly admitted under the principle last stated. The proper method of safeguarding the interests of the defendant was for her counsel to have requested the court, to instruct the jury that they should determine from the facts proved whether or not the defendant heard the statement of the Webb woman, and that unless they found she did hear it they should disregard the testimony of Officer Gray, so far as it related thereto. assignor the ground floor of No. 198 Smith street, Perth Amboy to be occupied as a general drug store for the term of six years from the 1st day of August, 1915, and stipulated: "That should the party of the first part decide to place this property on the market for sale, then the said party of the second part shall be given thirty (30) days' notice in writing of such intention with the privilege of purchasing same within said thirty days." The realty company decided to sell, and to that end its board of directors formally resolved "that Jefferson Building be placed on the market for $32,000." Thereafter a real estate agent retained by it tried to negotiate a sale with the drug company but it was not ready to buy. The drug company had no knowledge of the resolution. Other assignments of error and grounds of reversal have been discussed in the brief of counsel for the defendant. We have examined them, and find them to be without merit. They are none of them of sufficient importance to justify discussion by us. The judgment under review will be af- sent a letter to the Drug Company saying: firmed. (91 N. J. Eq. 216) MCCLUNG DRUG CO. v. CITY REALTY & 1. VENDOR AND PURCHASER 232 (9)—No- NOTICE OF OPTION THEREIN. Purchasers of premises in the possession of a lessee having knowledge of the lease are chargeable with notice of an option of purchase therein. [1] On May 2, 1919, the realty company sold the property to the defendants Greenspan and Borak for $34,000, and 3 days later it "If you care to buy the Jefferson Building No. 198 Smith street, kindly advise us at once, as we have an offer." Within 30 days the Drug Company verbally notified the Realty Company that it exercised its option, and would give $34,000, which was ignored, and the property was conveyed to Greenspan and Borak. They had knowledge of the lease, but not of the option. They are, however, chargeable with notice of all the lease contains; and, further, as the drug company was in possession, reasonable inquiry would have brought forth the information. Hoy v. Bramhall, 19 N. J. Eq. 563, 97 Am. Dec. 687; Vredenburgh v. Burnet, 31 N. 2. SPECIFIC PERFORMANCE 30-OPTION NOT J. Eq. 229. FIXING PRICE UNENFORCEABLE. Option in lease to buy is unenforceable, price not being named, and no standard being established by which it may be determined with certainty; it merely providing that if lessor decides to place premises on the market lessee shall be notified and have the privilege of purchasing within 30 days. Suit by the McClung Drug Company against the City Realty & Investment Company and others. Bill dismissed. Wight, Wight & Golenbock, of Perth Amboy (Merrit Lane, of Newark, of counsel), for complainant. Thomas Brown and Leo Goldberger, both of Perth Amboy, for defendants. [2] The question for decision is, Is the option a complete contract and enforceable in view of the statute of frauds? It seems to me the answer must be in the negative, as there was no price stipulated, and no method provided for its ascertainment. It is familiar law that equity will not specifically enforce a contract for the sale of lands unless it is conclusive and certain as to parties, the subject-matter, the price, and the terms. Some of the cases in this state are McKibbin v. Brown, 14 N. J. Eq. 13; Welsh v. Bayaud, 21 N. J. Eq. 186; Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. 160; Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4, 1 L. R. A. 380; Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, 19 Atl. 881. It is not necessary BACKES, V. C. This bill is for the specific that the price be specified in figures or words performance of an option contained in a lease at length. It is sufficient if a standard is esto purchase land. The struggle for the prop- tablished by which the price may be detererty is due, chiefly, to its recent increase in mined with certainty; as, for instance, the value. The City Realty & Investment Com- "fair value" or "market value" (Van Doren pany leased to the McClung Drug Company's v. Robinson, 16 N. J. Eq. 256), or at a price For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes offered by another upon a certain event, and accepted (Race v. Groves, 43 N. J. Eq. 284, 7 Atl. 667; Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555), or the appraisal of arbitrators (Woodruff v. Woodruff, supra). Complainant's counsel rely, for authority, altogether upon the remark of Vice Chancellor Bird in Race v. Groves, and the opinion of the Supreme Court of Illinois in Hayes v. O'Brien. I think the options in those cases are easily distinguishable in principle in that each of them defined the price to be the amount of a future accepted offer from another. No provision of that kind is contained in the complainant's option. All the drug company got by it was the exclusive privilege, for 30 days, of buying if the realty company decided to sell. It is not implied that the realty company was to fix a price at which it would sell to the drug company, for it is common practice to put property on the market awaiting proposals. Nor can it be read into the option that upon the realty company's determination to sell, and a price being fixed, it was to be unalterable and final; nor that the price was to be the accepted offer of another; nor that it was to be the reasonable value, as the complainant's counsel contend. Any of these factors of definiteness, properly stipulated upon the contingency of an offer of sale, would have supplied the required certainty, according to the authorities. A simple illustration of the incompleteness of the contract is that the option would be spent by the giving of a notice that the property was for sale, without more, and the lapse of 30 days. the lessor should be compelled to sell. Considered therefore in the light of a contract to sell, as it is treated by the bill, it does not satisfy the statute of frauds, and, apart from the statute, it is not such a contract as equity Mass. 283; Grace v. Denison, 114 Mass. 16; can specifically enforce. Pray v. Clark, 113 Gelston v. Sigmund, 27 Md. 334; Abeel v. Radcliff, 13 Johns. [N. Y.] 297 [7 Am. Dec. 377]; Bromley v. Jefferies, 2 Vern. 415. "It may be said that the contract does mean that the lessor will deal with the lessee on the same terms as with any one else, or at least will not discriminate against him; that the lessor has now fixed his price by a sale; and that, as the purchaser had notice of the contract, the defendants have removed the difficulties in the way of specific performance by their own conduct. It might be that the remedy would do substantial justice as against the lessor, but, in order to do it, a term would have to be added which is not in the contract. The contract certainly does not contemplate a sale to somebody else as a mode of ascertaining the price at which the lessor will sell to the lessee. Bromley v. Jefferies, ubi supra. The statute of frauds remains unsatisfied notwithstanding what has happened. It is not the event, but the nature of the contract, which is to be considered, and that must be determined by looking at it as it stood at the time it was made. See Stapilton v. Stapilton, 1 Atk. 2, 10; Walton v. Coulson, 1 McLean, 120, 129 dolph, 6 Leigh [Va.] 175, 186 [29 Am. Dec. [Fed. Cas. No. 17,132]; Moore v. Fitz Ran 208]." The bill will be dismissed with costs. (91 N. J. Eq. 29) MULLER et al. v. WEISS et ux. * (No. 41/263.) It is not the privilege of the court to piece out the option into a complete contract by seizing upon the resolution to sell for $32,000, or the selling price to Greenspan and (Court of Chancery of New Jersey. Nov. 28, Borak of $34,000, as the sum for which the realty company were, or ought, to sell to the complainant. That would be a juridical in- 1. COVENANTS 73-ENFORCEMENT OF RE terpolation of an essential of the contract upon which the minds of the parties had not met, at least not at the time the option was granted; and it is of that period that it must speak. In Fogg v. Price, 145 Mass. 513, 14 N. E. 741, the Supreme Court of Massachusetts had before it an option substantially like the one in this suit. I quote at length from the opinion of Judge Holmes for the better expression of my views. He says: 1919.) STRICTIONS IN DEED BY OTHERS DESPITE RELEASE BY GRANTOR. A grantor's release of restrictive covenants does not preclude other parties, to whom he made deeds previously, or makes them subsequently, from enforcing their rights against any purchaser violating the restrictive covenants. 2. SPECIFIC PERFORMANCE 53-DENIAL TO SELLER OF LAND ON ACCOUNT OF MISREPRESENTATIONS AS TO AREA AND COST OF EXCAVATION. The seller of land to a buyer who intended "The covenant is, 'If the premises are for to erect an apartment house is not entitled to sale at any time, the lessee shall have the re-specific performance where he misrepresented fusal of them.' This is simply an agreement the dimensions of the lots and also the cost of to give the lessee the first chance to make a excavating the rock on the property. contract, an agreement to sell if the parties can agree, but not otherwise. It neither fixes the price nor provides any way in which it can be fixed. Suppose that the premises had been advertised for sale, and that the tenant had brought his bill at once, it is plain that the court could not have named any sum at which EVI 3. SPECIFIC PERFORMANCE 121(8) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (108 A.) property, the only restriction thereon he had restrictions as to the maintenance of a sabeen informed of was as to use for saloon pur- loon on the property, but also one which poses, while he intended to erect an apartment prevents the carrying on of manufacturing, house, also prohibited by restriction. and the one which raised the greatest ob4. SPECIFIC PERFORMANCE 53-DENIED FOR jection on the part of the defendant, which ATTEMPTED OVERREACHING BY CONCEALMENT prevented the building of an apartment house on the premises. OF RESTRICTIVE COVENANTS. It is apparent from the testimony that it was known that the defendants contemplated putting up an apartment house. Muller had exhibited to Weiss during their transac Where the buyer of lots, intending to erect an apartment house, was informed when he signed contract only of restriction against use for saloon purposes, and not of other restrictions, including one against erection of apart-tions a blueprint prepared when Muller exment house, and the sellers sought to take advantage of him, while the agent who negotiated the deal, anxious to secure commissions, and the agent's son, attorney for both parties, knew of the other restrictions, but did not inform the buyer when the contract was signed late at night, the sellers are not entitled to specific performance. Bill for specific performance by Conrad Muller and others against Nathan Weiss and wife. Hearing on the pleadings and proofs. Specific performance denied. pected to erect such a building; and Weiss proceeded, undoubtedly, with the negotiations with Muller in the belief that he could so use the property. The complainants show by their subsequent action that the understanding as to the restriction was as Mr. Weiss testifies; for their attorney went to Gerber, the grantor of the Mullers, to secure a deed from him releasing the restrictive covenants. [1] The effect of such a deed, however, would not be to preclude the parties to whom Weller & Lichtenstein, of Hoboken, for he made deeds previously or subsequently complainants. J. Philip Dippel, of Weehawken, and McDermott & Enright, of Jersey City, for de fendants. LEWIS, V. C. This bill is filed for spe cific performance of a contract dated December 23, 1915. By this contract Nathan Weiss and wife agreed to sell and convey to the complainants certain lands and tenements, described in the bill of complaint for the consideration of $45,000, subject to a mortgage of $25,000, and the complainants agreed to sell and convey to Weiss and wife the lands secondly described in the bill for the consideration of $15,000, subject to a mortgage of $2,500, and to pay the difference of $7,500 as follows: $1,000 in cash on the passing of title, and by giving back to Weiss and wife a mortgage for the sum of $6,500. On the date fixed for the passing of title the defendant refused to take title for the various alleged defects; the principal one being that there were restrictions on the land of complainant of which he was not advised. On this question there was considerable evidence taken before me. It appears from this that the contract was drawn late at night by Isador Haber, a member of the bar. Weiss asked, as he had done on two previous occasions, whether or not there were any restrictions on the land; and Conrad Muller, the complainant, said he had heard that the town authorities would not allow any saloon there. The contract was executed by both parties. The scrivener, Haber, made it read: "Subject to all restrictions of record." It is clear to my mind that the defendants were misled; for not only were there from enforcing their rights against any purchaser violating the restrictive covenants. De Gray v. Monmouth Beach Co., 50 N. J. Eq. 329, 24 Atl. 388; Henderson v. Champion, 83 N. J. Eq. 554, 91 Atl. 332; Wootton v. Seltzer, 83 N. J. Eq. 163, 90 Atl. 701. The statement of Muller as to the size of the lots also appears from the testimony to be material misrepresentation. He said the corner lot was 30 feet by 95 feet and the inside lot 25 feet by 100 feet. As a fact, the corner was 30.7 feet by 93.46 feet on the street lines; and the other three lots all less than 100 feet in depth, although the center line of number 55 is about 6 inches over 100 feet. This tract is not a large one, and the difference in area, as represented by the complainant, is substantial. In the building of a large apartment house on it as contemplated by Weiss its size was a matter of considerable financial interest. [2] There is also evidence as to a misstatement of Muller as to the cost of excavating the rock on the property. These misstatements are in themselves sufficient to warrant me in denying specific performance. In suits for specific performance anything said or done to mislead the purchaser compels the court to deny relief to the complainant. Bowker v. Cunningham, 78 N. J. Eq. 458, 79 Atl. 608; Pyatt v. Lyons, 51 N. J. Eq. 308, 27 Atl. 934; Brisbane v. Sullivan, 86 N. J. Eq. 411, 99 Atl. 197; Neptune Fisheries Co. v. Cape May Real Estate Co., 89 N. J. Eq. 552, 105 Atl. 212. [3, 4] There is, however, another phase of this case which must be adverted to now. The testimony of the scrivener as to the transaction, late at night, is rather astonishing, coming from a member of the bar. He For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes I cannot escape the conclusion that, when Weiss contracted to take the complainants' property, the only restriction he had been informed of was as to the nonuse of the property for saloon purposes. I am satisfied that he was misled. He is not a man of much information and experience, and he was without any one at hand to advise him when the contract was executed, and a mere perusal of the testimony of young Haber will satisfy any one that he made no attempt to give him any information regarding the restrictions contained in the same. says he was called in to draw the contract, I strictive covenants in their deed was due which was prepared at the Muller home. to unfamiliarity with the English language; His father, Hill Haber (a witness) a real yet in completing the transaction they had estate man, sent for him prior to the meet- the services of a lawyer whose father was ing at the Muller home. Hill Haber had interested in closing it with Weiss to secure talked with Weiss and suggested that they his commissions. ought to have the contract executed that night. Weiss told him that he ought to see his lawyer if that was the case, but he nevertheless went to the Muller home, and then young Haber was sent for. The elder Haber was interested in putting the transaction through. He wanted to close it to get his commissions. The parties present when the contract was signed therefore were the Mullers, Hill Haber, Isador Haber, his son, and Weiss. Isador Haber's evidence is that he was the attorney for both parties at the time the contract was made. He, however, on the witness stand says that the reason he did not tell Weiss about all the restrictions is that he did not observe the full page of typewritten restrictions in the deed from which he was copying the description. He says that he did not hear the conversation between Muller and Weiss when Weiss asked about the restrictions, because he was busy preparing the papers. Surely the defendant, under these circumstances, should not suffer NAUNCZIK v. MCALLISTER LIGHTERin consequence of young Haber's neglect to make known to him the entire typewritten page of restrictions. In response to a ques- (Court of Errors and Appeals of New Jersey. tion, under cross-examination, Haber said: Specific performance will not be decreed where it will work a hardship or an unfairness, but the court must be satisfied that the claim is fair, reasonable, just, and equal. Specific performance in this case must be denied. AGE LINE. Nov. 17, 1919.) (94 N. J. Law, 447) "I really believe I was derelict; I will ad- MASTER AND SERVANT 277-FINDING THAT mit that; but that is the situation. Possibly, if it had been in the afternoon, I would have taken more time, but it was about midnight." DECEASED SERVANT HAD NOT CONSENTED TO Evidence held to authorize jury to find that Pressing further, the cross-examiner asked deceased, employed and paid by defendant which |