ple time and opportunity to do so. The plaintiff Dexter swore that Sampson, cashier, promised him again and again that he would transfer the stock, but this is denied by Sampson and others; and it does not seem reasonable, for, if it was to be transferred anyway, there was no reason for delay, and Dexter was advised there was a hitch, and knew he was not getting the transfer made, when, if he was entitled to it at all, he was entitled to it on Friday, on his first call. I am not satisfied from the evidence that any such promise was made.

Stress is laid by the plaintiffs' counsel upon a rescript rendered by the full court in an equity suit brought by this defendant against these plaintiffs and others upon a motion to dissolve a preliminary injunction against prosecuting this very case at bar, that had been granted. That rescript said merely, as I understand it, that the court, upon the evidence before it, would dissolve the injunction; the effect of it being to allow this case at bar to be tried on full evidence,--much more evidence, indeed, than was before the court upon the hearing of the motion.

I do not think the trover counts can be sustained, for, if the plaintiffs are not entitled to judgment upon the certificate as it was before it was amended, altered, or changed, it suffered no damage by such amendment, and the evidence satisfied me that the transfer on which that certificate was given was made as collateral security. It is a sufficient fact, shown by the plaintiff Dexter's evidence, that when he failed to get the 63 shares transferred by the National Eagle Bank he demanded from the Fifth National Bank the money he had paid it for that stock, and in my opinion it is to that source that the plaintiffs must look for such remedy as they have for the money paid out by them.

The finding and decision of the court is that the defendant is not guilty in manner and form as the plaintiffs have declared against it, and that the defendant is entitled to judgment against the plaintiffs for its costs.

(7 N. J. L. 76)

FIELDERS v. NORTH JERSEY ST. RY.CO. (Supreme Court of New Jersey. Nov. 11, 1901.) STREET RAILROADS-PAVING BETWEEN RAILS

-POLICE REGULATION-NEGLIGENCE.

1. A city ordinance, passed under due legislative authority to regulate street railways. that requires operating companies to repave and keep in repair, to the satisfaction of the proper city authorities, in any paved street of the city in which their tracks are or shall be laid, a space between lines one foot outside of their outer rails, under penalty that, on default after notice, the city may repair at the company's cost, is a valid police regulation, creating a duty towards the traveling public, and is evidential in an action for negligence brought against such a company by a passenger who is injured through a defect in that

part of the street pavement while passing from car to sidewalk.

2. In such a case the ordained duty is absolute, and not dependent on notice. It is immaterial whether the defective pavement was laid under the ordinance, or previously laid and fallen into disrepair.

3. In an action for negligence, tried with a jury, there was evidence as follows: The plaintiff, a passenger on the defendant's street railway, alighted, at the only place afforded for that purpose, from a car which was stopped for her at a cross walk. By direction of the conductor, she passed behind the car towards her destination, pointed out by the conductor, on the opposite side of the street. In so doing she was injured through a defect in pavement adjoining the cross walk, at a place where it was the duty of the defendant to keep the pavement in repair. The defect had existed for upwards of two months. She did not see, and had no warning of, the danger. Held, that it would not have been lawful for the trial judge to have held either that no negligence chargeable to the defendant had been proved, or that negligence of the plaintiff indisputably contributed to her injury. The case, in both aspects, was for the jury. (Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Louise E. Fielders against the North Jersey Street Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

The plaintiff recovered a judgment on a verdict in an action for negligence. The defendant has brought a writ of error, the assignments under which present only exceptions sealed at the trial. The evidence on the part of the plaintiff was as follows: In 1894 the board of street and water commissioners of the city of Newark, among other things, ordained that, in any paved street in that city in which railway tracks were or should be laid, the operating company should repave such street between lines one foot outside its outer rails,-said pavement to be laid under the direction and to the satisfaction of such board,-and should keep the pavement so laid in good and complete repair, to such satisfaction, in default whereof the board, on 10 days' notice, might make needed repairs at the company's cost. At the time of the passage of this ordinance Mulberry street, in Newark, was paved. On April 12, 1899, the defendant was operating a railway on that street. In the forenoon of the day last named, the plaintiff, a nonresident, was a passenger in the defendant's car running south along Mulberry street. She told the conductor that she wished to go to Oak street, which begins on the East side of Mulberry street, and runs in an easterly direction; and the car was stopped for her to get off, with its rear platform extending over a cross walk leading to Oak street. The only opportunity to leave the car was from the rear platform, and towards the west. The conductor directed the plaintiff to pass behind the car easterly to Oak street, which he pointed out to her. In attempting to do so, she stepped into a hole in the pavement directly behind the car, and in its shadow.

She did not see, and was not warned of, the danger. She fell heavily, thus sustaining the injury for which she brought suit. The hole was between the rails of the track on which the car had been running, and along the north side of the cross walk at which it stopped. It was caused by the removal upwards of two months before of some of the stone blocks with which the street had been paved. The only variant evidence adduced in defense was testimony to the effect that although there was a depression about five inches deep, caused by a sinking in of the pavement, no blocks were gone, and that the depression was about a foot from the Cross walk.

Argued November term, 1901, before DEPUE, C. J., and DIXON, GARRISON, and COLLINS, JJ.

George T. Werts, for plaintiff in error. Frederick E. Hodge and Samuel Kalisch, for defendant in error.

COLLINS, J. (after stating the facts). Exceptions were sealed to refusals to nonsuit and to direct a verdict, but they are not cognizable, as the bills of exceptions do not state the grounds of the motions. The points discussed by the trial judge in refusing the motion to nonsuit are, however, presented by exceptions to refusal to charge certain requests, compliance with which would have compelled a verdict for the defendant. Those requests postulate that no negligence chargeable to the defendant had been proved, and that it conclusively appeared that the plaintiff, by negligence, contributed to her injury. In both aspects the case was one for the jury. As to the defendant, negligence was fairly inferable from a management of affairs that permitted the plaintiff, without warning, to alight from and pass behind the car when so overhanging the cross walk as to make her encounter a dangerous defect long existent in the pavement. When to this was added the ordained duty of the defendant to have kept the pavement in repair, negligence was hardly disputable. As to the plaintiff's conduct, on the other hand, there was abundant room to dispute a lack of such care as the circumstances required.

Some of the requests refused assume that a passenger alighting from a street car should be held to take the risks of defects in the highway. That depends upon circumstances, a most important one in this case being that the defect was a result of the carrier's breach of duty. Where a duty is imposed by law to keep a highway in good condition, an action lies for injury sustained by reason of the neglect of that duty. Elliott, Roads & S. (2d Ed.) § 782. In this state public corporations, but those only, are excepted from this liability. A recent illustration of the principle will be found in the decision of this court in Sonn v. Railroad Co., 49 Atl. 458, where a railroad company charged with the

duty to keep its rails at a grade crossing sufficiently bridged for the convenient passage of carriages, horses, and cattle was held liable to a bicyclist thrown from her wheel by reason of a gap in the bridging. It was further held that proof of the defect was prima facie proof of neglect.

The subject mainly discussed by the experienced counsel for the plaintiff in error was the relevancy and effect of the city ordinance above mentioned. Exceptions were sealed to its admission in evidence, and to refusal to charge divers requests as to its legal effect in the case. It was clearly evidential. It was a general ordinance affecting all street railways, and was passed under due legislative authority for their regulation. P. L. 1857, p. 116; P. L. 1891, p. 249, § 12; In re Haynes, 54 N. J. Law, 6, 22 Atl. 923. The burden laid upon the operating companies was one fairly within proper police regulation, and could constitutionally be laid as a condition of the exercise of a franchise in a pub lic street, whether under an irrepealable contract or otherwise. North Hudson Co. Ry. Co. v. Mayor, etc., of City of Hoboken, 41 N. J. Law, 71; Consolidated Traction Co. v. City of Elizabeth, 58 N. J. Law, 619, 34 Atl. 146, 32 L. R. A. 170; Morris & E. R. Co. v. City of Orange, 63 N. J. Law, 252, 43 Atl. 730, 47 Atl. 363; Booth, St. Ry. Law, §§ 220-224, 240-242; Elliott, Roads & S. (2d Ed.) §§ 742, 743, 772.

It was assumed by the requests refused, and is contended in this court, that the ordinance was a matter of contract between the city and the operating company, in which the plaintiff had no privity; but such is not its legal status. It is, as stated, a police regulation, in which the traveling public are concerned. The board of street and water commissioners, in ordaining its provisions, exercised a delegated legislative authority, and the burden imposed was absolute. That the fulfillment of the requirement to repair was to be measured by the satisfaction of the board is immaterial, as is also the provision for the city's making repairs at the company's cost on default after notice. The failure of the board to act would not be proof that it was satisfied with the condition of the pavement, nor does the provision for notice imply that no repair need be made except upon notice. These provisions are regulative only, and afford the necessary sanction to give effect to the ordinance.

It is urged that, under a fair construction of the ordinance, repavement is not arbitrarily demandable, but can be exacted only on reasonable need, and that, as there was no proof in the case that the company had ever repaved Mulberry street, the ordinance was not applicable, for the reason that it is only a pavement laid by the company that must be kept in repair. This argument is but specious. If the defective space had not been repaved, it surely needed repaving. If it had been, it needed repair. It is of no im

Del.)

1. Where in an action on a corporation's note no corporate seal appeared on the copy of the note annexed to the affidavit of demand, the note will be deemed insufficient, as not showing any corporate obligation.

2. An affidavit of demand by the treasurer of a corporation is insufficient which contains no averment in the body of the same that affiant is such officer.

Action by the St. Joseph's Polish Catholic Beneficial Society of the City of Wilmington, a corporation, against St. Hedwig's Church of Wilmington, on a note. Judgment denied. The plaintiff filed an affidavit of demand, the body of which was as follows: "State of Delaware, Newcastle County-ss.: Before me, George H. Hollis, a notary public for the state of Delaware, personally comes John Maliszefski, treasurer of the said society, the plaintiff above named, who, being by me duly sworn according to law, deposes and says that annexed hereto is an exact copy of a promissory note sued upon in this action; that the sum demanded by the said defendant, which is due and unpaid, is thirteen hundred and thirty dollars ($1,330.00). John Maliszefski, Treasurer of Saint Joseph's Beneficial Society, the Plaintiff Above Named.

"And said deponent further says that he verily believes that the same is justly and truly due from the said defendant to the said plaintiff.

"Sworn and subscribed before me this sixteenth day of May, A. D. 1901. In witness whereof, I hereunto set my hand and seal the day and year last aforesaid. Geo. H. Hollis, Notary Public. [Notary's seal.]"

The note attached to the affidavit of demand was in the following form:

"St. Paul's Church, Fourth and Jackson Streets. Wilmington, Delaware, Feb. 12, 1900. One year after date, the corporation of St. Hedwig's Church promises to pay to St. Joseph's Beneficial Society seventeen hundred dollars ($1,700.00). Rev. John S. Gulcz, Treasurer. Jan Maliszewski, Trustee. Pioter Chelmienievicz, Trustee.

"Approved by J. J. Monaghan, Bishop of Wilmington. [Thirty-four cents in documentary stamps.]"

Said copy showed the following indorsements on the back thereof:

"17th of May, 1900, taken from the note two hundred doll. ($200). Rev. John S.

535

Gulcz. Theodore Sikorski, Pres. Jan Grabkowski, Sekatair. Jan Maliszewski, Treasurer.

"4th Oct., 1900, taken from the note Feb. 12th, 1900, $170.00. Theodore Sikorski. Jan. Grabkowski."

Mr. Cochran, for defendant, moved that judgment be refused, notwithstanding the affidavit of demand, because of the insufficiency of the affidavit, upon three material grounds, viz.: (1) That the signature of the affiant appeared above, instead of below, a very material clause in the affidavit, to the effect that he verily believes that the same is justly and truly due from the said defendant to the said plaintiff; (2) that there was no corporate seal appearing on the copy of the note annexed to the affidavit; (3) that the alleged treasurer of the corporation was averred nowhere in the body of the affidavit as such treasurer.

JJ.

Argued before SPRUANCE and GRUBB,

Samuel S. Adams, Jr., for plaintiff. Edwin R. Cochran, Jr., for defendant.

SPRUANCE, J. On the last two grounds we hold that the affidavit is insufficient. Judge GRUBB'S view is that it is enough that the affiant has not sworn that he is the treasurer of the corporation. I would put it as well on the ground of the defect in the note itself. The note does not show upon its face any obligation of the corporation defendant to the plaintiff.

We refuse judgment notwithstanding the affidavit of demand.

(3 Pen. 157) GUARANTEE FRIENDLY FUND OF TEMPERANCE MUT. BEN. ASS'N OF PENNSYLVANIA v. HENDERSON. (Superior Court of Delaware. Newcastle. March 13, 1901.)

JUSTICE OF PEACE-JURISDICTION-APPEALSUFFICIENCY OF RECORD.

A statement in a record on appeal from a justice that the cause was an "action of assumpsit on covenant" is not a sufficient statement of the cause of action to show that it was within the jurisdiction of a justice of the peace.

Certiorari to justice of the peace.

Action by Ida Henderson against the Guarantee Friendly Fund of the Temperance Mutual Benefit Association of Pennsylvania. From a judgment in favor of the plaintiff, the defendant brings certiorari. Reversed.

The following exceptions to the record were filed in behalf of the defendant below: First, that the record does not state or show the cause of action upon which the suit was brought; second, that the record does not show that the cause of action was within the jurisdiction of a justice of the peace; third, the only cause of action set forth in the record is in these words, to wit, "Action

of assumpsit on covenant," which is not a sufficient statement of the cause of action.

Mr. Pennington, for plaintiff below, contended that this was a case of indebitatus assumpsit, the action being based upon an insurance policy,-a contract under seal,and that the word "covenant" was used in its technical sense; that it signified a contract, express or implied; and that therefore the justice had jurisdiction.

Argued before LORE, C. J., and PENNEWILL and BOYCE, JJ.

Harry Emmons, for appellant. Robert Pennington, for respondent.

LORE, C. J. One of the exceptions in this case is that the cause of action set out by the justice of the peace does not show that it was within the jurisdiction of the justice; the only statement being, "Action of assumpsit on covenant." While in the case of Colesberry v. Stoops, 1 Har. 448, the court held that covenant would lie before a justice of the peace in some cases, yet in that case a distinct cause of action was set out, showing that it was within the jurisdiction of the justice of the peace. In the case now before the court, however, there is nothing but the word "covenant," and we think it is not a sufficient statement to show that it was within the jurisdiction of the justice. "Covenant" is a general term, and the record must set out specifically what the cause of action is, so as to bring it within the jurisdiction of a justice of the peace, as was done in the case cited above from 1 Har.

For that reason, let the judgment below be reversed.

(3 Pen. 152)

LOVE v. BARNESVILLE MFG. CO. (Superior Court of Delaware. Newcastle. March 11, 1901.)

VENDOR AND PURCHASER CONTRACTS BREACH- ACT OF GOD DAMAGES PURCHASE BY SAMPLE-IMPLIED WARRANTY. 1. Where six witnesses have testified to a fact from actual observation, an expert will not be permitted to testify to the same thing; the rules of practice permitting only six witnesses to the same fact.

2. In an action for breach of contract of the sale of goods by sample, the plaintiff must show either that the goods were not delivered, or that they were not according to sample.

3. A vendor is not liable for failure to deliver goods, where such failure is caused by the act of God, in the absence of an undertaking to the contrary.

4. A purchaser of goods cannot recover for a nondelivery of the same, where he refused, without just cause, to receive any more of the goods, or to pay for those delivered.

5. The measure of damages for the failure to deliver goods is the difference between the contract and the market price at the time of delivery under the contract.

6. A purchaser of goods by sample may take such possession of the goods as to enable him to ascertain by examination that they are according to the sample.

7. A buyer of goods by sample may reject such as are not according to the sample, and may either return them or notify the seller of

nonacceptance, and that they are held subject to his order.

8. A sale of goods by sample carries an implied warranty that the goods, when delivered, will be according to sample.

9. An unqualified acceptance of payments after the time stated in the contract is a waiver as to time.

10. On the nondelivery of goods by the vendor, the buyer has a reasonable time in which to purchase goods to replace those not delivered.

Action by Henry M. Love against the Barnesville Manufacturing Company, a corporation. Verdict for plaintiff.

Action of assumpsit on a contract for the delivery of 150,000 pounds of "11's, carded peeler yarn, on cones." Plaintiff claimed, including interest, $6,728.52 as damages for the nondelivery of 137,039 pounds of the yarn according to sample, under the terms of said contract. See further facts in the charge of the court.

At the trial, Mr. Ponder, for plaintiff, having proved by six operatives in the plaintiff's mill the poor quality of the yarn sent by defendant under the contract, produced as an expert on the subject of cotton yarns Thomas Ravy, and propounded to him the following question: "Will you look at these yarns which I hand you, and tell me whether, in your opinion, they are good carded peeler yarns?"

Objected to by counsel for defendant on the ground that the same matter had already been testified to by six witnesses, which was the limit allowed under the practice of the court. Defendant's counsel admitted that six lay witnesses had testified upon the point inquired about, but contended that the court had never ruled that an expert could not be examined generally upon the same subject-matter after six witnesses had testified to the fact from actual observation; that it was a totally different

line.

LORE, C. J. You have proved by six witnesses the actual condition of that yarn, and have elected the kind of witnesses you wished to prove it by. We hold that you cannot now produce one or more experts, and prove by them the condition of the same yarn.

Argued before LORE, C. J., and PENNEWILL and BOYCE, JJ.

James W. Ponder, for plaintiff. Levi C. Bird and Andrew E. Sanborn, for defendant.

LORE, C. J. (charging jury). The plaintiff, Henry M. Love, claims that by contract made October 4, 1899, he bought by sample from the Barnesville Manufacturing Company, the defendant, 150,000 pounds of 11's, carded peeler yarns, on cones, at the price of 14 cents per pound, to be delivered f. o. b. at Wilmington, Del., at the rate of 5,000 pounds per week, commencing January 1, 1900; that the defendant failed to deliver

according to sample, under the terms of the contract, about 137,039 pounds of the yarn; that he (the plaintiff) was thereby compelled to go into the market and buy that quantity of yarn, at prices ranging from 18 to 19 cents per pound, to take the place of the yarn which was not so delivered; that he paid therefor $6,595.81 in excess of the contract price. This sum, with average interest thereon, he claims to be due him from the defendant by way of damages. The defendant claims that the contract was annulled by agreement of the parties made December 22, 1899, and another contract substituted therefor, for the delivery of 3,000 pounds per week for 14 weeks, commencing January 1, 1900; that in April, 1900, the defendant was prevented from complying further with the then existing contract by the refusal of the plaintiff to receive any more yarn from it, and to pay for the yarn already delivered. I need not go further into the details of the case and circumstances, as you will remember the facts shown by the evidence, and are to be governed solely by such recollection in making up your verdict. It is our province to state the law upon the points raised, by which you are to be controlled in reaching your verdict.

To recover at all, the plaintiff must show a breach of the contract on the part of the defendant, showing either that the goods were not delivered, or that they were not according to sample. The defendant would not be liable for damages caused solely by the act of God, such as an epidemic of sickness in the defendant's factory, in the absence of its undertaking so to do. If the goods delivered were of the kind and quality specified, and were delivered at the times named in the contract, and the plaintiff refused to receive any more, or to pay for those delivered, without just cause, no recovery may be had.

Upon the measure of damages, 2 Greenl. Ev. 261, says: "Upon a contract to deliver goods, the general rule of damages for nondelivery is the market value of the goods at the time and place of the promised delivery, if no money has yet been paid by the vendee." This court, in Wright v. Richards' Adm'r, uses this language: "The measure of damages for nondelivery of goods is the difference between the contract price and the price at the time in the market." 1 Har. 324. In Alderdice v. Truss, 2 Houst. 268, the contract was made March 7, 1859; the demand and refusal, on March 12th. The court held that the measure of damages for the nondelivery of the corn purchased was the difference between the value of the corn on the said 7th and 12th of March. See, also, White v. Thompkins, 52 Pa. 367. In Leonard v. Forge Co., tried at the November term, 1899, of this court, and not reported, this court held "the measure of plaintiff's damages to be the market value of the iron at the time and place where it was sold and

delivered." We conclude the true measure of damages, therefore, to be the difference between the contract price and the price of the goods in the market at the time they are to be delivered under the contract.

When goods are sold by sample, the purchaser has a right to examine, inspect, and make a thorough test as they are delivered, and to take such possession thereof as may be necessary to ascertain whether they are according to contract. If goods sold are not according to sample, the buyer, at his option, may return the goods to the seller, or may notify the seller of nonacceptance, and that the goods are held subject to his order. Every sale of goods by sample carries with it an implied warranty that the goods, when delivered, shall be according to sample; that they are fit for the use for which they were sold. A buyer may accept such goods as are according to sample, and reject such as are not.

During the continuance of a contract, the unqualified acceptance by the seller of payments after the time stated in the contract is a waiver as to time.

When, by reason of the nondelivery of goods according to contract, the buyer is obliged to go into the open market and purchase goods to replace those not so delivered, such purchaser is entitled to a reasonable length of time to do so. Where the contract expresses the time, the question is one of construction, and therefore one of law for the court, and not for the jury; but the question of what is a reasonable time is often a question of fact for the jury, under all the circumstances of the case. Benj. Sales, §§ 1024, 1048. Under all the circumstances of this case, we think it is here a question for the jury.

The dispute in this case seems to be not so much as to what the law is, as to its application to the facts of this case. If you should find that the plaintiff kept his contract with the defendant, but, by reason of the default of the defendant, paid out a sum of money in excess of the contract price to replace goods which the defendant agreed and failed to furnish, the plaintiff would be entitled to recover such sum, with interest thereon by way of damages.

Governing yourselves by the law as the court has expressed it in this charge, you are to determine what, if any, damage the plaintiff is entitled to recover.

(Exception noted for defendant.) Verdict for plaintiff for $6,728.52.

(3 Pen. 165) HOME LOAN ASS'N v. FOARD et ux. (Superior Court of Delaware. Newcastle. March 15, 1901.)

OPENING JUDGMENT.

Where an alleged mortgagor requested an attorney to take charge of and defend any suit brought thereon, and paid no attention to a