ing of tickets. The evidence is that up to Certain employés connected with the machine shop were assigned to the duty of cleaning the heads when necessary and of taking them down and repairing them. These men were ordinary mechanics employed at ordinary mechanics' wages. There was no definite contract entered into between the company and any of its employés which would forbid the disclosure of the alleged secret, nor is there sufficient evidence to permit me to find that any of the employés were definitely instructed that they were not to disclose any information they might acquire. The defendant Titus was employed by the concern some 23 years ago as an apprentice. He left in March, 1913. For some years prior to his leaving he had worked on the barrel head, had taken it apart and reassembled it. While he testifies that he was never instructed that the device was of secret construction, and I find no evidence upon which I can base a conclusion that he was, yet he and the other mechanics unquestionably knew that the complainant did not desire that the details of the construction should be disclosed. It chose to rest upon its ability to hold its employés in its employ, or upon the chance that none of its employés would have the necessary mechanical ability to reproduce the machine even if they were permitted to examine the interior construction. the barrel numbering device was referred to; for immediately after this employment with the concern on March 10, 1913, he started to build such a machine. Manshel denies that at the time he knew that the device was considered by the Globe Company as its exclusive property, or that he knew that Titus was under obligation not to use, in the interest of the Sun Ticket Company, the information which he had acquired at the Globe Company's plant. Titus denies that he considered that he was under any obligation to refrain from using information that he had acquired at the plant of the Globe Company. In view of the action of the officers of the complainant, which will be hereafter adverted to, it seems to me that, while Titus and Manshel knew that the Globe Company was adverse to this barrel numbering head being used by a competitor, yet they considered that they were under no legal or moral obligation, the one not to impart, and the other not to use, information acquired by Titus while in the employ of complainant. It is significant that when Titus went to Manshel he received no compensation for the information that he had obtained at the plant of the Globe Company. On the contrary, he was paid a dollar less a week wages. If he thought that he had a tremendous secret to disclose it would seem as if he would have bargained for more than mechanic's wages. The machine built under the supervision of Titus was completed in October, 1913. While it is somewhat different in its construction and operation than the device used by complainant, the basic idea is the same. It is an improvement upon the device of complainant, but not so different in construction and operation as to make it a new device. It is conceded by Titus that, if he had not had the information acquired at the Globe Company's plant, he would never have thought of what he calls his own device. In this respect this case is within Stone v. Grasselli Chemical Co., 65 N. J. Eq. 756, 55 Atl. 736, 63 L. R. A. 344, 103 Am. St. Rep. 794. [1, 2] We come now to the action, or lack of action by complainant, after Titus left, upon which I think the case depends. Titus made no secret of his intention to leave and become connected with the Sun Ticket Company. The officers of the complainant knew that Titus had the information necessary for him to have to reproduce the barrel numIn the year 1913 there was considerable bering head. In 1914 the Sun Ticket Comdissension in the plant of the complainant. pany began printing coupon theater tickets, The morale of its officers seems to have bro- and it was apparent to the officers of the ken down. Employés were leaving right and complainant that they had been printed upleft. There was in existence in Providence, on a device which performed the same funcR. I., a concern known as the Sun Ticket tion as the barrel numbering head of comCompany, of which one Manshel was president and general manager. On February 22, It is perfectly apparent from an inspection 1913, Titus applied to Manshel for a position of the various strips of tickets that have with that concern. He represented to Man- been put in evidence here that it is not difficult to determine whether the strips have been printed upon a flat press or upon some shel that he had had 17 years' experience with the Globe Ticket Company, and I am plainant. different times rather than by one impres-cerned may be summed up in this that he sion. The irregularities which appear upon practically said to Manshel, “You got this inthe tickets printed upon the flat press or formation, you are using it; I cannot stop band machine as described by Mr. Keen, if you, but you are a crook for doing it." Aftthere are any, are regular, whereas the ir- er consideration, the offer of the Sun Ticket regularities which appear upon the tickets Company to sell out was declined. While made by the barrel head device are irregu- there is no evidence that at the board of lar. It is perfectly clear to me that the directors' meeting there was discussed the complainant well knew in 1914 that Titus fact that the Sun Ticket Company was using had made use of the information which he this barrel head device, there is evidence had acquired at the complainant's plant, and that almost everything else was discussed. that the Sun Ticket Company was using that There is evidence that the possession by the information. In 1914 competition on the Sun Ticket Company of the alleged secret part of the Sun Ticket Company increased. was of the utmost importance, and was Herring admits that the Sun Ticket Com- thought one of the important factors to be pany could not have produced the article it considered in the sale, and it is hard to esdid without using a device performing the cape the conclusion that there was discussame functions as the barrel numbering sion with respect to this matter. During head. The complainant knew that another 1915 and 1916 competition between the Sun of its employés possessing information with Ticket Company and the complainant became respect to this device was associated with more bitter. In February, 1917, the Interthe Sun Ticket Company. In February and national Ticket Company was formed. That March, 1915, there was brought to the atten- concern was a consolidation of the Sun Ticktion of the complainant letters written by et Company, the Rockwell Machine ComTitus to a concern in Chicago offering to pany, and the Manshel Machine Company. build for that concern an apparatus which The assets of the three concerns were conwould contain this barrel numbering head. veyed to the International Company, and the Competition had steadily increased. In stock of the International Company issued in June, 1915, Manshel visited the vice presi- payment therefor. So far as the Rockwell dent and general manager of the complain- Machine Company stockholders are concernant with the idea of offering to complainant ed there is no evidence whatever that any the plant of the Sun Ticket Company for of them had anything to do with Manshel, sale. In that conversation Pope, vice presi- or with the Sun Ticket Company, or with Tident and general manager of complainant, tus, or had any knowledge that the Sun charged Manshel with being a business crook, Ticket Company was using or might be with having enticed away employés of com- charged with using the secret device of the plainant. Titus must have been referred to Globe Company. There can be no doubt but specifically for Keen, the secretary, was sent that the ability of the Sun Ticket Company for to attend the conference to verify a state to number tickets by this barrel numbering ment made by Pope to Manshel that Titus device entered materially into the price fixhad offered to sell to the Chicago concern ed upon the assets of the Sun Ticket Comthe barrel numbering head device. pany. It seems to me that the intervention There is no doubt I think but that at this of the International Ticket Company created conversation the facts that Titus had given a complete change of conditions. The Interto the Sun Ticket Company information national Ticket Company used the barrel which he had acquired at the Globe Ticket numbering head device, and complainant perCompany plant, and that the Sun Ticket mitted it to. Nothing whatever was done Company was using this information and by complainant until August, 1917. It then was numbering tickets with the barrel num- sent an operative to the plant of the Interbering head device, were referred to. Man- national Ticket Company, who obtained emshel denied none of the statements of Pope. ployment and made photographs of the deIndeed, I think it clear that his possession of vice used by the International Company. this information was used by him as a rea- Her report came in in a few weeks, but it son why the complainant should purchase was not until the 26th day of December, the plant of the Sun Ticket Company. It is 1917, that the bill in, the present case was not asserted that at the conference any of- filed. From June, 1915, to August, 1917, no ficial of the complainant made any claim of additional information came to complainant exclusive right to the device. The most that indicating that the Sun Ticket Company or Pope claimed was that Manshel had not act the International Ticket Company was using ed in accordance with good business ethics. this device. Whatever information comManshel unquestionably left the conference plainant had it had by June, 1915. Indeed, with the idea that Pope considered that he during the year 1914 it had information up(Manshel) had acted in a way that was un- on which it might have acted. It certainly fair so far as business ethics were concern- had in 1915. I do not believe that the comed, but certainly with no idea that Pope or plainant had any intention of endeavoring to the complainant considered that Titus had prevent either the Sun Ticket Company or violated any legal right of complainant. In- the International Ticket Company from us keen in 1917 that it began to look around 2 Atl. 379; Stone v. Grasselli Chemical Co., for some possible means of preventing it. 65 N. J. Eq. 756, 55 Atl. 736, 63 L. R. A. 344, I think both upon the ground of acquies- 103 Am. St. Rep. 794; Fleckenstein Bros. v. cence and laches the bill should be dismissed. Fleckenstein, 66 N. J. Eq. 252, 57 Atl. 1025; It is true that the defenses of laches and ac- Vulcan Detinning Company v. American Can quiescence, while cognate, are not corela- Co., 70 N. J. Eq. 588, 62 Atl. 881; 72 N. J. tive. Mere delay may constitute laches which Eq. 387, 67 Atl. 339, 12 L. R. A. (N. S.) 102; will prevent relief, if conditions have chang- Pomeroy Ink Co. v. Pomeroy, 77 N. J. Eq. ed. Acquiescence implies assent. And it is 293, 78 Atl. 698; Taylor Iron and Steel Co. true that action, or lack of action, occurring v. Nichols, 70 N. J. Eq. 541, 61 Atl. 946. during the commission of a wrong may constitute acquiescence or estoppel which would not have the same effect if occurring after the performance of the wrong. De Bussche v. Alt, 8 Chan. Div. 286, 314. In this case, however, the wrong was a continuing wrong. Complainant is entitled to the benefit of its secret device so long only as it preserves its secrecy. I will advise a decree dismissing the bill with costs. Let decree be settled on two days' notice. (92 N. J. Law, 99) PAULSEN v. KLINGE. (Supreme Court of New Jersey. June 17, 1918.) 1. MUNICIPAL CORPORATIONS 705(2) STREETS-RIGHT OF WAY. Right of automobile driver who has right of way is not exclusive, but at all times relative, and subject to fundamental common-law doctrine that he must use his right so as not to in2. MUNICIPAL CORPORATIONS_705(2) STREETS-RIGHT TRAFFIC ACT. jure another. It will have the aid and assistance of the court under certain circumstances in preserving secrecy. Consent to a disclosure or the use by another bars relief. Delay in applying for relief with knowledge of the circumstances may be considered as an element of evidence in determining whether or not there has been acquiescence. The distinction behicle tween laches and conduct evidence which may show acquiescence or election is clearly made in the case of Faulkner v. Wassmer, 77 N. J. Eq. 537, 77 Atl. 341, 30 L. R. A. (N. S.) 872, citing Dennis v. Woglom, 44 N. J. Eq. 513, 14 Atl. 913, 6 Am. St. Rep. 899, and Clampitt v. Doyle, 73 N. J. Eq. 678, 70 Atl. 129. OF WAY-INTERSECTION By the Traffic Act, providing driver of ve approaching intersection of streets shall grant right of way to vehicle approaching from right, Legislature did not confer monopoly of way ad libitum on person so approaching, regardless of existing conditions and distance from intersecting street. *mm 705(2) STREETS INTERSECTION-DUTY OF DRIVER WITH RIGHT OF WAY. 3. MUNICIPAL CORPORATIONS - Where automobile driver, having right of way at crossing under the Traffic Act, saw approaching on intersecting street, at least a block away, another driver, who held out hand as statutory indication of intention to turn, first driver was under duty to observe conditions, and drive accordingly. 4. MUNICIPAL CORPORATIONS 705(2) STREETS-INTERSECTION-RIGHT OF WAY. Considering all of the testimony, I find complainant acquiesced in the continued use of this alleged secret device by the Sun Ticket Company and the International Ticket Company. With respect to laches the rule is well settled that, while under ordinary circumstances a court of equity follows the statute of limitations, yet when extraordinary circumstances intervene the court will disregard the statute and determine the case upon equitable principles. In this case, with knowledge, as I have found, of facts sufficient to charge it with knowledge that Titus was disclosing the alleged secret, and that the Sun Ticket Company was using it, and with knowledge imputed to it of the fact that under the law it was necessary, to protect its right, to preserve the secrecy of the alleged device, complainant failed to act until December, 1917. In the meantime the building up Robert W. Thompson, of Morsemere, for of a prosperous business by the Sun Ticket appellant. James C. Agnew, of Town of UnCompany had been permitted, and the Inter-ion, for appellee. national Ticket Company had intervened and purchased the assets of the Sun Ticket Company, into the value of which undoubtedly entered the right of the Sun Ticket Company to use this device. Under the circumstances, I think the doctrine of laches applies. Upon the main issue I have considered the cases of Salomon v. Hertz, 40 N. J. Eq. 400, The Traffic Act, providing driver of vehicle approaching intersection shall grant right of way to vehicle approaching from right, merely adds factor to common-law rules, whereby negligence may be measured between conflicting claimants exercising common right. Appeal from District Court, Bergen County. Action by Neillsimine Paulsen against Gustave A. Klinge, Jr. From judgment for plaintiff, defendant appeals. Affirmed. Argued November Term, 1917, before SWAYZE, TRENCHARD, and MINTURN, JJ. MINTURN, J. The case was tried before the court without a jury, and the court found the facts in favor of the plaintiff. The action was for damages caused by a collision between plaintiff's and defendant's automobile, on Main street in Ft. Lee, at the intersection of Anderson avenue. The plaintiff's version of the accident was that desiring to applicable to negligence have not been abolturn into Anderson avenue, she put out her ished by the enactment. Its existence but hand in that direction and blew her horn; adds an additional factor to be considered in defendant was approaching in the opposite given situations by which negligence may be direction about a block distant, at a speed measured and determined between conflictof 25 to 35 miles an hour. Plaintiff's caring claimants exercising a common right. was followed by others immediately behind. The situation contemplated by the Legisla Defendant failed to reduce his speed as he approached, although he knew the intersection to be dangerous, and the collision inevitably resulted. We think there was evidence in the case sufficient to warrant the trial court in finding that the plaintiff was not guilty of contributory negligence, and that defendant was guilty of negligence. Chapter 156 of the Laws of 1915, known as the Traffic Act, was invoked by defendant for the purpose of conceding to him a right of way under the circumstances. The section is as follows: "On all public roads, streets, highways or turnpikes, the following rules and regulations shall be in force: "1. Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right." ture must be present in fact in order to invoke the legislative regulation as an exclusive element to be considered in weighing the comparative tort-feasance of the parties; and in any event, as the Court of Errors and Appeals has determined at the present term in the case of Winch v. Johnson, 104 Atl. 81 (not yet officially reported), not unlike the case at bar in material particulars, the negligence of the defendant is to be determined upon all the facts and circumstances of the situation, and therefore the conceded violation of the statutory regulation, by a defendant, does not per se warrant the trial court in directing a verdict for the plaintiff. We We have examined the testimony as to the damage suffered by the plaintiff, in view of the defendant's contention that some of it was too remote and was not the proximate and natural result of the accident. think there was sufficient testimony in the case to warrant the trial court in finding that it was neither too remote nor so disconnected from the injurious result of the collision as to render it an improper element of damage. The judgment will be affirmed, with costs. (89 N. J. Eq. 189) FEICK V. HILL BREAD CO. (No. 38.) (Court of Errors and Appeals of New Jersey. June 17, 1918.) ABILITIES OF INDORSEE. [1-3] If we assume that the defendant had the right of way, the conditions must be such as to justify him in the absolute exercise of the right. In any event his right up on the highway is not exclusive, but at all times relative and still subject to the fundamental common-law doctrine, "Sic utere tuo ut alienum non lædas." Nor was his right of way exclusive because he was on the right side of the road, as required by the traffic statute. The Legislature did not contemplate by this enactment to confer a monopoly of way ad libitum upon a person in the posture of the defendant, regardless of existing conditions and the distance he was from the intersecting street into which others were 1. BILLS AND NOTES proceeding. The plaintiff complied with the provisions of the same act when approaching the intersection while the defendant was at least a block away. She held out her hand as the statutory indication of her intention to turn into the intersecting street. It was the duty of the defendant at that time to observe the conditions and guide his machine accordingly. 2 R. C. L. 1184, and cases cited. The legislative act was not intended to provide an exclusively hard and fast rule, applicable to all hazards and in all situations, regardless of actual conditions, and thus liberate from responsibility one who by fortuitously adhering to the regulation may be otherwise reckless and indifferent to the situation of others lawfully exercising equal rights upon the highway, but who may be subject to untoward and unlooked for situations beyond their control. [4] Such a construction would tend to encourage rather than diminish and obviate the dangerous situations this legislation was conceived to remedy. The common-law rules 306-RIGHTS AND LI The indorser on a note is entitled to be reimbursed for what he has been required to pay in discharge of the note, in the absence of any equities. 2. BILLS AND NOTES 518(1) — PAYMENT — EVIDENCE. Evidence held to show that money given to an indorser of a note was consideration for a new note, and was not given to pay the first note. Appeal from Court of Chancery. Bill by Bertha E. Feick, executrix of Charles A. Feick, against the Hill Bread Company. From a decree (99 Atl. 851) in favor of plaintiff, defendant appeals. Affirmed. Frank E. Bradner, of Newark, for appellant. Waldron M. Ward and Pitney, Hardin & Skinner, all of Newark, for appellee. SWAYZE, J. [1, 2] Such difficulty, if any, as there may be in this case, disappears when the facts are clearly apprehended. The situation is this: Feick's estate has been decreed to be insolvent. Among the claims filed with the executrix, which, by the adjudication of | been to make payment; and although his the orphans' court, are to be held and deemed as justly due (3 C. S. 1910, p. 3850, pl. 104), are a claim by the Union National Bank and a claim by the Hill Bread Company. The claim of the bank includes a claim for the amount due on notes of the Hill Bread Company, indorsed by Feick, amounting to $10,500. The rest of the bank's claim is not material to the present controversy. The claim of the Bread Company includes a claim on a note of $10,000 made by Feick, which is subject to a set-off of $2,500 due from the Bread Company to Feick, leaving $7,500 due, besides some interest. The rest of the Bread Company's claim is not material to the present controversy. On the face of the papers, the Bread Company is primarily liable on the notes held by the bank; (3) The defendant filed a sworn claim with Feick's estate is liable to the Bread Company the executrix on the note. This could not be for the balance due on the $10,000 note after rightfully done if the $10,000 had been in crediting the $2,500 set off. The orphans' fact payment of the other notes. This claim court decreed a dividend of 45 per cent. on is now in the form of an adjudication of each claim. The executrix paid the dividend the orphans' court, final so far as the settleto the bank, but refused to pay the dividendment of the estate is concerned; and the deto the Bread Company, on the ground that she was entitled to be reimbursed for what she had paid the bank in discharge of the Bread Company's primary liability. In this she was clearly right, unless the equitable situation is not that shown on the face of the papers. The defendant undertook to prove this proposition. The claim is that the Bread Company paid Feick $10,000 in cash on account of its notes; that in equity he was bound to apply the money to that purpose; that his failure to do so altered the equitable situation as between themselves, and made Feick in equity the primary debtor. Since the $10,000 cash was the only consideration for Feick's note to the Bread Company, that note would not be enforceable as between them, if in fact the $10,000 was not a loan to Feick but was payment of the Bread Company's own obligation. The same money could not do double duty as payment of a debt and as the consideration of a new note. The disputed fact therefore is whether the money was a payment or a loan. On the evidence the Vice Chancellor could not help finding that it was a loan. failure to return the notes which had been made by the Bread Company to his order is susceptible of the explanation that they were then held under discount by the bank, it would nevertheless have been just as easy to have given a receipt and agreement to return the notes as to give the new note. (2) Both Feick and the president of the Bread Company continued for some time, and until Feick's death, to treat both the set of notes indorsed by Feick and the note of which he was maker as outstanding obligations. Interest was paid and notes given in renewal. There is no adequate explanation, hardly what can be called an attempt at explanation of conduct so unusual, if the defendant's view of the transaction be accepted. (1) It was so treated by the parties at the time. We cannot conceive that Feick would have given a note rather than a receipt if the intent of the Bread Company had in fact 104 A.-7 fendant claims its dividend thereon. It is said that the president of the Bread Company had no authority to file the claim with the executrix. We need not consider this question. It is enough to say that the defendant's case rests on his testimony, and, in considering its value, his own affidavit to the claim is weighty evidence against the construction he seeks to give the transaction by his testimony at the hearing. It was incumbent on the defendant to prove an equitable situation different from what was shown on the face of the papers. It has failed to do so. The complainant is therefore entitled to set off, against the dividend she owes the defendant, the amount she has already paid the bank as a dividend on what the defendant was primarily obligated to pay. defendant's dividend was less than that which the complainant paid the bank. The same reasoning requires that the balance be charged upon any future dividends to which the defendant may be entitled; and it was of course proper to provide that she might apply on the foot of the decree for an execution to secure any balance that might still remain unpaid. The The Vice Chancellor advised such a decree. It is affirmed, with costs. |