bundles had been loaded in the car and prop- | within a reasonable period after the delivery, erly sealed, the plaintiff, under the terms of or the failure to deliver, so as to protect itthe bill of lading, assumed all the liability self from resulting loss, upon a subsequent for loss during transportation. The trial claim for damage. Manifestly the delivery court found that the defendant failed to de- of a notice of the loss, from which no other liver the goods at the Harrison station. The inference is reasonably derivable than that testimony was that, when the shipment was the loss has occurred, and giving the subreceived at the plaintiff's plant, it was check-stantial particulars as in the case sub judice, ed up by three of its employés, and the fact and which resulted in an investigation by of the absence of the fifth bundle was noted the carrier, is substantially a claim or a noby another employé upon the original deliv- tice of a claim within the reasonable conery receipt, and the receipt with that nota-struction of the bill of lading. The most retion was forwarded to defendant. There cent review of the subject is contained in St. Louis & I. Mt. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917. There the court points out the rationale for a reasonable interpretation of the word as follows: was, in addition, ample testimony furnished from which the trial court reasonably concluded that the fifth bundle was delivered to the plaintiff at Charleston, in West Virginia, but was not placed by defendant upon its ferry car at Harrison, to be run into the plaintiff's premises, upon the siding maintained for that purpose. [1] There was a diversity of testimony upon that question, but the trial court, possessing the opportunity of viewing the witnesses pro and con, and with the advantage of considering the credibility of their testimony, found that the five bundles were not placed upon the ferry car at the Harrison station, and that finding upon well-settled rules, we cannot disturb. It eliminates from our consideration the legal effect of the consign- | ment, under the terms of the bill of lading, as well as under the provisions of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379), which, under the conditions contended for by the defendant, it may be conceded, would relieve the defendant from responsibility, and impose the risk of transportation upon the plaintiff. [2] It is insisted, finally, that the claim of loss, required by the bill of lading, to be furnished by the plaintiff, within four months, to the defendant, after delivery, was never furnished. The testimony evinces that, in addition to the notation upon the receipt already referred to, there was a letter written by plaintiff to defendant on April 17, 1916, citing the facts, and informing defendant that the fifth bundle had not been delivered. The defendant, after investigation, notified plaintiff by letter, three days thereafter, that they had been unable to locate it. The stress of the reasoning upon this point is placed upon the word "claim," contained in the bill of lading, as follows: "Claims must be made in writing, to the carrier, at the point of delivery, or at the point of origin within four months after delivery," etc. We think the information conveyed by the plaintiff to the defendant was substantially a claim within the meaning of the language quoted. The liberality of interpretation placed upon that term by the federal Supreme Court, and the courts of sister states where the question has arisen, evinces that the fundamental reason for the requirement is to enable the carrier to trace the goods "Such notice puts in permanent form the evidence of an intention to claim damages, and will serve to call the attention of the carrier to the condition of the freight, and enable it to make such investigation as the facts of the case require, while there is opportunity so to do:" [3] In conformity with that general view, the rule is generally accepted to be that a stipulation requiring the giving of notice of a claim for damages must be given a reasonable construction, and a substantial compliance therewith on the part of the shipper is all that is required. See annotations to Hoye v. P. R. R., 191 N. Y. 101, 83 N. E. 586, 17 L. R. A. (N. S.) 641, 14 Ann. Cas. 417; 4 R. C. L. 796, and cases cited; 10 C. J. 336, and cases cited. The judgment will therefore be affirmed, with costs. (91 N. J. Law, 426) KREBS v. RUBSAM et al. (Supreme Court of New Jersey. June 5, 1918.) (Syllabus by the Court.) 1. LANDLORD AND TENANT 167(4)-INJURY TO TENANT-FAILURE TO KEEP HALL LIGHTS BURNING NEGLIGENCE. An action lies against the owner of a tenement house for failure to keep the hall lights 126 of the act (4 Comp. St. 1910, pp. 5323, burning until 10 p. m., as required by section 5341), when it appears that such failure was negligent, tested by the rules of common law. 2. LANDLORD AND TENANT 167(4) — FAILURE TO KEEP HALL LIGHTS BURNING-NEGLIGENCE. Where the lights have been properly lit, but extinguished before 10 p. m. by an independent agency for which the owner is not responsible, and an accident occurs in consequence, the question to be answered in determining negligence of the owner or his agent is whether the period of time between the extinguishing of the light and the injury was such that said owner or agent should in the exercise of reasonable care have 3. LANDLORD AND TENANT 169(11)—FAILdiscovered the situation and relit the light. URE TO KEEP HALL LIGHTS BURNING-QUESTION FOR JURY. Ordinarily, that question is for the jury; but when the facts are undisputed, and no other inference can be reasonably drawn than that of absence of negligence, a verdict for defendant is properly directed. Appeal from Circuit Court, Essex County. Action by Wilma Krebs, administratrix of Julius Krebs, deceased, against Edward F. Rubsam and others. Judgment for defendants upon a directed verdict, and plaintiff appeals. Affirmed. Argued February term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ. A. J. Rossbach, of Newark, for appellant. John A. Bernhard, of Newark, for respond ents. PARKER, J. This is a negligence case. The trial judge directed a verdict for the defendant, and this judicial action is the sole ground of appeal. light (on the third floor as Krebs was about to leave) the first floor light was lit, and when Krebs came from his kitchen to go down that went out. There was nothing in the defendant's case more favorable to the plaintiff. It appeared without contradiction that the light had been turned out by a young son of Rubsamn, who testified that he was at night school till 9:30, and reached home at 9:55, turning out the light as he went upstairs, and that his father had forbidden him to touch the lights, but on this night he thought his father was already home, and so he turned out the light as he went upstairs. Defendant Edward F. Rubsam testified that no one but himself had any authority to turn out the lights. Mrs. Scherer, the other defendant, also testified that she never gave any authority to the son, and that her brother, Edward Rubsam, had the entire active management of the house. There was no claim that either defendant, or Edward's wife, knew the light was out before the accident. It was therefore uncontradicted that the light was extinguished by the unauthorized act of a third person, and consequently for this direct act defendants were not responsible. [1, 2] Defendants were the owners and proprietors of a house in Newark occupied by three families, one on each floor, and coming within the statutory definition of a "tenement house." P. L. 1904, p. 96, § 2; C. S. 5323. It was their statutory duty as such owners to keep a proper light burning in the public hallways near the stairs, upon every floor, between sunset and 10 o'clock each evening. Section 126; Kargman v. Carlo, 85 N. J. Law, 632, 635, 90 Atl. 292. The complaint alleged [3] Any claim that they were negligent a negligent failure to perform this duty, must rest on the proposition that after the and that in consequence thereof deceased fell light was turned out, they should, in the while descending the stairs on a specified eve exercise of ordinary care, have discovered ning before 10 o'clock, and sustained injuries this and relit it, not merely before 10 o'clock, from which he died. There was a dispute but before Krebs went down stairs. Schnaton the evidence as to whether he died as a terer v. Bamberger, 81 N. J. Law, 558, 79 Atl. result of the fall, but this may, for present 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, purposes, be assumed to be a jury question. | 139. Ordinarily this is a jury question, but In cases of this class where the statute is pe- this case falls within the class of cases where nal in character, and the right of action is by reason of undisputed facts and an interval predicated on an alleged violation of the of time between the creation of the danger statutory duty, the action is governed by the and the accident, so short that men cannot ordinary rules of negligence cases except reasonably draw different inferences from the that the violation of the statute operates as testimony, negligence has been held as a court the basis of the defendant's liability, the de- question to be nonexistent. Timlan v. Dilfendant retaining all the defenses appropri- worth, 76 N. J. Law, 568, 71 Atl. 33; Schnatate to an action of negligence that are not terer v. Bamberger, 81 N. J. Law, 558, 79 Atl. affected by the statute. Evers v. Davis, 86 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, N. J. Law, 196, 204, 205, 90 Atl. 677. Thus 139. Assuming, therefore, that the absence of to recover in a private action for an omis- light caused the fall, and the fall caused the sion of the statutory duty, plaintiff must death, there was nothing to require the subshow that the omission was a negligent one mission to the jury of the question whether (Id.); and, indeed, this was the charge in the the defendants were negligent in not relightcomplaint. But in the case at bar there was, ing the light prior to Krebs' departure from in our opinion, no evidence to justify the the Ruder apartment. The trial court theresubmission of alleged negligence to the jury.fore properly directed the verdict, and the It appeared on the testimony that deceased judgment will be affirmed. started down stairs from the top floor, occupied by a friend of his named Ruder, just before 10 o'clock, and that as he was descending the stairs from the second to the ground floor the gaslight on the ground floor newel was out; but on the other hand it ap-1. peared by plaintiff's own witness, Ruder, that the light in question had been lit that evening until deceased actually started or was ready to start down the stairs. Ruder testified that when he turned up his own (92 N. J. Law, 165) CASTELBAUM v. WOLFSON. (Court of Errors and Appeals of New Jersey. If it was error to admit a transcript of the harmless, where it was averred in the complaint pleadings of another case in evidence, it was and admitted in the answer that a certain judgment was entered in such case. 2. CHATTEL MORTGAGES 226-ASSUMPTION | Shown by this transcript; but it was proved by the testimony of the plaintiff without objection, as was its payment in full by him. OF MORTGAGE-LIABILITY. Assumption, by grantee of business, of a chattel mortgage upon the property conveyed, is an agreement to assume and pay interest as well as principal notwithstanding that the amount of the principal alone is recited in the assumption clause. 3. EVIDENCE 384 WRITTEN CONTRACT. VARYING TERMS OF Where a written agreement is complete on its face, oral testimony will not be permitted, either to contradict it or to supply terms with respect to which the writing is silent. 4. APPEAL AND ERROR 362(1) MATTERS REVIEWABLE-RECORD. On appeal, a contention not supported by any ground of appeal will not be considered. White, J., dissenting. Appeal from Supreme Court. Suit by David Wolfson against Jacob Castelbaum. Judgment for plaintiff, and defendant appeals. Affirmed. Thomas Brown, of Perth Amboy, for appellant. Isidor Kalisch, of Newark, for ap pellee. GUMMERE, C. J. The material facts in the present case are thus stated in the brief of counsel for the appellant: "The suit is founded on an agreement wherein the respondent, the party of the first part, agreed with the appellant, the party of the second part, to convey a certain saloon business in the city of Perth Amboy, together with the stock of liquors and cigars. The sale was made subject to the following conditions: 'Subject to a mortgage of $950 (really $900) now held by the Peter Breidt Brewery, which the said party of the second part agrees to assume in addition to the consideration above named.' The respondent, who is the party of the first part to this agreement, was sued by the Peter Breidt Brewery, and was obliged to pay interest and costs on the chattel mortgage referred to in the foregoing provision of the agreement, and thereupon the respondent brought this action in the Supreme Court to recover from the appellant the moneys which he claimed to have paid, and the costs and expenses, above the principal sum of the chattel mortgage." The plaintiff had a verdict for the full amount of his claim, and judgment was entered thereon against the defendant. [2] It is next argued that by the provision of assumption the defendant only became bound to pay the principal of the mortgage, and not the interest accrued and to accrue thereon. But this is not the extent of his legal obligation. The assumption by the grantee of a mortgage existing upon the premises conveyed is an agreement to assume and pay that mortgage, both principal and interest, notwithstanding the fact that the amount of the principal is recited in the assumption clause. The cases so holding are numerous, and no authority to the contrary is referred to by counsel for the appellant. [3] It is further contended that the court erred in excluding a conversation between the parties, had at the time of the execution terest, if any, should be assumed and paid by of the agreement, as to what part of the inthe defendant. We think this testimony was properly excluded. The written contract is plain, and was an agreement on the part of the defendant to pay both the principal and the interest of the mortgage. Testimony offered for the purpose of proving a conversation had at the time of the execution and delivery of the agreement, which controverted the writing itself, is not admissible in the absence of fraud. No principle is more firmly imbedded in our law than that which declares that in the absence of fraud or illegality, where a written agreement is complete on its face, oral testimony will not be permitted either to contradict it, or to supply terms with respect to which the writing is silent. In such a case the writing must be accepted as a full expression of the agreement of the parties. We are asked to reverse the judgment under review upon the further ground that the trial court erred in refusing to nonsuit the plaintiff at the close of his case. This motion was based upon the theory that the proof showed there had been an accord and satis[1] The first ground of appeal is directed faction between the parties, the effect of at a ruling of the trial court admitting in evi- which was to release the defendant from any dence, and permitting to be read to the jury, further obligation with relation to the subjecta transcript of the pleadings in the suit of matter of the present suit. A recital of the the Peter Breidt Brewery against the plain- evidence upon which the defendant based his tiff; the contention being that the only prop- theory will serve no good purpose; it is sufer proof upon that point was a certified copy ficient to say that we have carefully examinof the judgment itself. It is not necessary ed it, and find nothing in it to support his for us to consider the soundness of the legal contention. The motion to nonsuit was propproposition thus submitted, for the recovery erly refused. of this judgment by the brewing company [4] The appellant further contends that against the plaintiff was not a matter in con- the judgment is erroneous in its amount, betroversy between the parties. It was averred cause the respondent was improperly perby the plaintiff in his complaint, and was admitted to recover not only the interest on the mitted by the defendant in his answer, and it Breidt Brewery Company mortgage, but also is probably for this reason that counsel for the costs which he incurred in the Breidt litithe appellant in his brief states the recovery gation. As this contention, however, is unof this judgment as a fact. It is, of course, supported by any ground of appeal, it has not true that the amount of the judgment is not received consideration at our hands. Other grounds of reversal are specified in the appellant's reasons for appeal; but, as they were none of them argued by counsel, we have treated them as having been abandoned. intestate as to the Insurance Times, and that St. George Kempson made a valid assignment of all his interest in the Insurance Times. We think the Court of Chancery reached a right conclusion, and the decree of the Court The judgment under review will be af- of Chancery should be affirmed. The reason firmed. WHITE, J., dissenting. (89 N. J. Eq. 205) KEMPSON v. KEMPSON et al. (No. 52.) (Court of Errors and Appeals of New Jersey. June 17, 1918.) (Syllabus by the Court.) CONSTRUCTION — PARTIAL on which this conclusion is based, in brief, is this: The will of Peter Tertius Kempson consists of six paragraphs or items, numbered first, second, third, sixth, seventh, and ninth; the first five being single paragraphs, making specific bequests. The ninth paragraph is composed of eight distinct sections, although not numbered. The first four refer to the disposition of the residuary estate by the following clause: "All the rest, residue and remainder of my estate, both real and personal, not herein before to hold the same, in trust," etc. disposed of, or hereinafter specified, to have and WILLS 865(1) INTESTACY. The will of Peter Tertius Kempson consists of six paragraphs or items, numbered first, second, third, sixth, seventh, and ninth. After dis- The last four relate specifically to the Inposing of the residuary estate, this clause ap-surance Times and the conduct of the busipears: "From all the provisions of the preceding clauses I except my interest in the Insur- ness connected therewith. Then follows this ance Times newspaper, its good will," etc. Held, clause: that Peter Tertius Kempson died intestate as to his interest in "the Insurance Times." Appeal from Court of Chancery. Suit by John Fraser Kempson against Grover C. Kempson and others. From a "From all the provisions of the preceding clauses, I except my interest in the Insurance Times newspaper, its good will, etc." From these clauses, read in connection with the entire will, we think the conclusion is irdecree for complainant (102 Atl. 673), defend-resistible that the testator's intention, as ants appeal. Affirmed. gathered from within the four corners of the will, to use a picturesque phrase in the law of wills, was to exclude the Insurance Times from the residuary clause; that Peter Tertius Kempson died intestate as to his interest in the Insurance Times. Failing to make subsequent provisions for its ultimate disposal, that the will must furnish the basis for construction is elemental. It can make no difference whether the testator through ignorance or inadvertence fails to dispose of all his estate. The courts cannot supply the omission. The province of the courts is to construe, not to make, wills. Tyndale v. McLaughlin, 84 N. J. Eq. 657, 95 Atl. 119. The decree of the Court of Chancery is affirmed. (89 N. J. Eq. 138) DOLAN v. UNIVERSAL FIRE BRICK CO. (No. 45/33.) BLACK, J. A bill in this case was filed in the Court of Chancery for the construction of certain items of the will of Peter Tertius Kempson, who died September 25, 1890. The property affected is the estate or interest in certain personal property, consisting of a newspaper called the Insurance Times. The contest is over the one-third interest in the Insurance Times. The appellant's brother St. George Kempson, a son and legatee under the will of Peter Tertius Kempson, on the 30th day of December, 1893, assigned his one-third interest in the Insurance Times to his stepmother, Julia H. Kempson, and James A. Van Cleve. He died August 12, 1907, leav- (Court of Chancery of New Jersey. June 12, ing a will in which he bequeathed his property to his wife and children. The question, therefore is whether the assignment made by St. George Kempson on the 30th day of December, 1893, is legal. That in turn depends upon the question whether Peter Tertius Kempson died intestate as to this item of the Insurance Times, because, if he did, then St. George Kempson had legal power to make the assignment of December 30, 1893. The assignees and their heirs, the respondents, have a legal title. The Court of Chancery held that Peter Tertius Kempson died 1918.) (Syllabus by the Court.) 1. CORPORATIONS 684 INSOLVENT FORAPPOINTMENT OF RE The court may, under the provisions of sections 65 and 66 of an act concerning corporareceiver of a foreign corporation found to be intions (2 Comp. St. 1910, p. 1640), appoint a solvent notwithstanding the fact that no receiver had been appointed in the jurisdiction of the domicile of the corporation and that there are no proceedings there pending against it, and the procedure is substantially the same as if the corporation were domestic. 2. CASE DISTINGUISHED. McDermott v. Woodhouse, 87 N.J.Eq.617, 101 Atl. 375, distinguished upon the grounds indicated in Atwater v. Baskerville, 104 Atl. 310. 647. Application by Patrick J. Dolan for the appointment of a receiver for the Universal Fire Brick Company. Application granted. Michael J. Tansey, of Newark, for complainant. Clifford L. Newman and Edgar M. Tilt, both of Paterson, for defendant. common pleas of Mercer county to Harry Cohen to keep an inn and tavern in the township of Ewing pursuant to an application therefor under the inn and tavern act of 1846 (C. S. p. 2890). We are of the opinion that the court was without authority to grant the license, and that it must be set aside. [1] On its face the application was sufficient and made out a prima facie case of authority in the court of common pleas to grant it. But that prima facie case was opLANE, V. C. [1, 2] This is an application to en to question before that court, and it was appoint a receiver of a foreign corporation un-challenged by the prosecutor of this writ upder the provisions of the sixty-fifth and sixtysixth sections of the Corporation Act, 2 Comp. Statutes of N. J. p. 1640. The jurisdiction of the court is questioned upon the authority of McDermott v. Woodhouse, 87 N. J. Eq. 617, 101 Atl. 375. I considered that case in Atwater v. Baskerville, 104 Atl. 310, 647, not yet officially reported, and came to the conclusion that it is not an authority for the proposition that this court may not under the sixty-fifth and sixty-sixth sections of the statute appoint a receiver of a foreign corporation. This court may, where a foreign corporation is shown to be insolvent, appoint a receiver notwithstanding the fact that no receiver has been appointed in the domicile of the corporation and there are no proceedings there pending against it, and the procedure is substantially the same as if the corporation had been domestic. (91 N. J. Law, 409) LANNING V. COHEN et al. on the ground, among others, stated in the remonstrance, that in fact the applicant "was not well provided with house room, stabling and provender." To authorize the court to grant the license, it was essential, among other things, that the applicant should be "well provided with house room, stabling and provender" (C. S. p. 2890, par. 2), and to be well provided with stabling and provender must have "stabling and provender of hay and grain for four horses more than his own stock." Paragraph 16. Accordingly, the court proceeded to inquire by evidence whether the facts existed without which its au thority to grant the license would fail, and concluded to grant the license. Of course, the jurisdiction of the court over such an investigation of facts is indisputable, and if its conclusions of fact thereon were legally warranted by the proofs adduced before it, those conclusions could not be reversed on certiorari. This being so, the sole province of the Supreme Court on these mat (Supreme Court of New Jersey. June 7, 1918.) ters of fact is to examine the evidence offered (Syllabus by the Court.) 1. INNKEEPERS 4-LICENSE-STABLING. 2. INNKEEPERS 4-LICENSE-REVOCATION. Certiorari to Court of Common Pleas, Mercer County. Certiorari by Wallace Lanning against Harry Cohen and others to review the granting of an innkeeper's license by the court of common pleas of Mercer county. Grant of license set aside. Argued February term, 1918, before SWAYZE, TRENCHARD, and MINTURN, JJ. Wicoff & Lanning, of Trenton, for prosecutor. John H. Kafes and John A. Montgomery, both of Trenton, for respondent Cohen. TRENCHARD, J. This writ brings up for review the grant of a license by the court of in the court of common pleas, and decide whether on that evidence the court could lawfully determine that it had authority to grant the license. Dufford v. Nolan, 46 N. J. Law, 87; Houman v. Schulster, 60 N. J. Law, 132, 36 Atl. 776. Upon a careful examination of the evidence in the present case we think it could not. [2] The house for which the applicant sought a license is in the township of Ewing, only 200 feet from the Trenton city line, in The whole lot on a manufacturing center. which it stands is only 32 by 86 feet. The building itself is 30 by 65 feet, leaving a back yard 21 by 32 feet. There is no stable or other accommodations for horses and wagons. On the first floor is the barroom, on the second floor are four bedrooms and a bath, on the third floor are two rooms, without beds, used as storerooms. The applicant, his wife, and two children, one ten years old and one five, live in the place. It is less than a mile from the center of Trenton, where are located all of Trenton's principal hotels, and is about 400 feet from the Johnson trolley line, running to the center of Trenton every 45 minutes, and about 1,400 feet from the Princeton avenue trolley, running to the center of Trenton on a 5 to 8 minute schedule. It is |