Where there is no present intention that the title shall immediately pass from a vendor and become irrevocably vested in the vendee, or where the intention is that it shall not so pass until the death of the vendor, the transaction is testamentary in its nature and is controlled by the statute of wills; and if the owner of land is to be permitted to make a deed to another and deliver it to such other under an under; standing that the title is not to become vested in the vendee until the death of the vendor, it is a will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 206, 207; Dec. Dig. 87.] 3. ESCROWS

1-DEEDS-DELIVERY IN ES

CROW-EFFECT. A deed may be delivered in escrow, conditioned for a second or subsequent delivery at the death of the vendor; but, in order that that may be effected, the delivery in escrow must be absolute and of such a nature that the title of the property presently passes from the vendor, though he retain control of the possession. [Ed. Note. For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. 1.]

Appeal from Court of Chancery. Bill by Maggie Watson and others against David Magill. Decree for plaintiffs, and defendant appeals. Affirmed.

The following is the oral opinion of Vice Chancellor Leaming:

I cannot think that it will be advantageous to take this case under advisement. I feel so fully convinced at this time touching the law and the fact that to further consider the testimony or the law would be of little, if any, advantage. [1, 2] I am unable to believe that it was ever the intention of either Robert or David that the title to this property should presently and immediately and irrevocably pass from Robert to David. They may have had a notion at one time to arrange matters so that at the death of Robert the title would go to David; but whatever they may have intended or contemplated at any time to that end, I am convinced they did not accomplish; and I think it entirely clear that they at no time intended or believed that they had passed the title of that property irrevocably from Robert to David, in such manner that it could not be reclaimed if Robert wanted it. It seems to me that all the testimony in the case tends to that conclusion, and that there is very little testimony in the case that does not more or less substantiate that idea.

After this deed was made Robert continued to treat this place as his own, and David continued to treat the place as though it were Robert's. There was absolutely no change in the attitude of the parties towards the property, notwithstanding the execution of the deed. Between the execution of the deed and Robert's death, Robert appears not only to have continued to occupy and to farm and to improve the property, but he also made his will, in which he devised the property in a manner that utterly ignored this conveyance. To that latter circumstance I attribute little force, because he could not in that manner destroy a title that he had once created; but it indicates at least that he himself did not understand that he had irrevocably disposed of the title to this property. At his death David had apparently forgotten, absolutely forgotten, the circumstance of this deed. Not only had he failed during all that time to seriously regard himself as the owner of the property, but he had forgotten the transaction in such manner that it was not until long after the death of Robert, and long after he had

It seems to me in view of these conditions that it would be impossible to properly arrive at the conclusion that either Robert or David at any time regarded the title of this property as having passed out of Robert and as having become vested in David. If the transaction occurred as was testified to by one witness, who was present at the time of the execution of the deed, it would indicate that the deed was not intended to be a bona fide deed when it was executed. If the testimony of the lady who was present at the delivery of the deed is to be believed, it seems to me the case would fall directly under the decision of our Court of Errors in Schlicher v. Keeler, as reported in 67 N. J. Eq. at page 635, 61 Atl. 434. As I understand the Court of Errors in that case, it is there determined that where there is no present intention that the title shall immediately pass from vendor and become irrevocably vested in the vendee, or when the intention is that it shall not so pass until the death of the vendor, that the transaction is testamentary in its nature, and is controlled by our statute of wills; that if the owner of land is to be permitted to make a deed to another, and deliver it to that party under an arrangement or understanding that the title is not to become vested in the vendee until the death of the vendor, it is a will. That is exactly what a will is, and if the transaction was as stated by the lady who was present at the moment of delivery, it seems to me that was the transaction. Her language was that "these" she referred to them in the plural-"they belong to you when I am gone," or she may have referred to the properties in the use of the word "they"; but her exact language was, "They belong to you when I am gone." That is essentially the situation in the case to which I have referred in the Court of Appeals, and that I think was probably the real nature of this transaction. It was probably intended by these parties at that moment-they both of them seem to have departed from that purpose subsequently-but at that moment it may have been intended between these parties, and probably was, that this title should become controlled by this instrument in such a way that the property would remain the property of Robert until he died, and that then it would be the property of David, and do away with the necessity of a will. But even that does not seem to have been treated as a finality between them, because they both disregarded that plan and neither of them in the future seemed to have treated it as a finality.

[3] A deed can undoubtedly be delivered in esorow. A deed can be delivered in escrow, and the escrow can provide for the second or subsequent delivery at the death of the vendor; but in order that that may be effective, the delivery in escrow must be absolute. It must be of such nature that the title of the property passes from the vendor, of such a nature that the vendor loses dominion and control over the title of the property; not over the possession, he may retain possession, but over the title. In that manner the deed may remain in escrow until his death, and then the second delivery by the escrow holder follows of necessity. That was the situation in this case referred to by Judge Starr. Rowley v. Bowyer, 75 N. J. Eq. 80, 71 Atl. 398. That situation, however, is essentially different from the situation where the delivery of the deed is to the vendee with an obvious understanding between the parties that the deed shall not be presently effective as a conveyance, but

shall only be operative to vest title at the death of the vendor.

I attribute no force to this unexecuted deed which was found among the papers. I think that shows on its face what it was intended for. Shortly before this mortgage was made by Robert to Mrs. Sickler, I think it was, David conveyed his then interest in the property to Robert. The Sickler mortgage recites that conveyance and gives its date as the 14th of January, 1905. The unexecuted deed was apparently a deed which, for some reason, was not used. That bears date the 12th, I think it is, of January, 1905, but it is identical with the deed which was in fact used, in its general nature. I will advise a decree setting aside this con

veyance.

Lewis Starr, of Camden, for appellant. Bergen & Richman, of Camden, for appellees.

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Leaming.

GUMMERE, C. J., and GARRISON, PARKER, MINTURN, VREDENBURGH, HEPPENHEIMER, and TAYLOR, JJ., dissent.

(88 N. J. Law, 452)

HUFF v. WALLACE.

1916.)

1. TRADE-MARKS AND TRADE-NAMES 30RIGHTS AND NAME "Provender AND STABLING."

The duty of an innkeeper to provide "provender and stabling" for the animals of his guests does not extend to providing a garage for their automobiles, so that he cannot claim ownership of the trade-name of an attached garage merely because he is an innkeeper.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 33, 34; Dec. Dig.30.]

2. TRADE-MARKS AND TRADE-NAMES 35OWNERSHIP-LEASE.

GEN, JJ.

George A. Angle, of Belvidere, for appellant. Harlan Besson, of Hoboken, for respondent.

SWAYZE, J. Two causes of action are set forth in the complaint: (1) Libel; (2) conversion. The libel alleged consisted in letters written to the freight agents and express agents of the various railroads at Blairstown, forbidding them to deliver express or freight addressed "Blairstown Gar

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 39, 40; Dec. Dig. 35.]

3. TRADE-MARKS AND TRADE-NAMES OWNERSHIP-QUESTIONS OF FACT.

30

Ownership of a trade-name of a garage attached to an hotel must be determined as a matter of fact from all the circumstances and cannot be based as a matter of law upon the mere fact that one claimant was a licensed tavern keeper of the hotel to which the garage was attached.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 33, 34; Dec.

Dig. 30.] 4. TRIAL ERROR.

296(1)-INSTRUCTIONS-CURE OF

parties have been using the name Blairstown Garage for fraudulent commercial purposes." The conversion alleged was of certain automobile supplies which seem to have been addressed to Blairstown Garage, and to have been taken by defendant, although claimed by the plaintiff. The foundation of the litigation is conflicting claims to the trade-name "Blairstown Garage." The facts are as follows:

Prior to April 1, 1912, one Stout had been conducting a tavern known as the "Blairstown House." In connection therewith, he had a garage, which seems to have been no more than an adjunct to the tavern. April 1, 1912, he rented this garage to the

On

the county clerk a certificate that he intended to carry on business under the name of "Blairstown Garage." When his tenancy expired, he took with him the sign and moved to another part of the town where he has since conducted business under that tradename. Stout rented the garage to Huff from April 1, 1914, and Huff has there conducted business under the same name as the defendant.

[1-3] It is rather difficult to say what precise question was submitted to the jury. It is enough to say in this respect that the charge is based on a fundamental misconception of the rights of the parties. The judge charged that the name Blairstown Garage belonged to the hotel; to the place and not to the person. He drew this conclusion from what he conceived to be the legal duty of a licensed tavern keeper to provide a garage for automobiles, either in lieu of, or in addition to, the statutory obligation to provide stabling and provender. Holding this view, he charged that the plaintiff as Stout's lessee had a right to the enjoyment of the name "Blairstown Garage" without being interfered with by the defendant. If we could bring ourselves to the view that "stabling and provender," which of course originally meant stabling and provender for horses or cattle, has now come to mean a garage for automobiles, including, we suppose, a supply of gasoline and repairs, we should still be unable to see how Stout could claim any right by reason of the statute, since, confessedly, from April 1, 1912, he failed to perform this supposed duty of a tavern keeper, and rented out the garage to the defendant for two years, and to the plaintiff since. Clearly, whatever right there may be to the use of the name "Blairstown Garage" must be determined as a matter of fact from all the circumstances, and cannot be based as a matter of law upon the mere fact that Stout was a licensed tavern keeper. Apparently if he ever had an exclusive right to the name, he had abandoned it when he rented the garage and allowed the defendant to set up a sign and conduct business under the name.

[4] The judge repeated his error when he charged that, whatever right the hotel keeper had in the hotel, he had the same right in the garage, as a part of the hotel. It is true that he afterward charged that, if the plaintiff or Stout had acquired the name and was known to the public as Blairstown Garage, then the plaintiff, as Stout's lessee, should have the right to have the name protected. This, however, did not correct the previous error, since it still left it open for the jury to find that Stout had acquired the right to the name as matter of law from the mere fact that he had the tavern license. That

defendant had no right to use the name "under the law as I charge you," and that the plaintiff had, on account of being the lessee of the proprietor of the hotel, "using this part as a garage, then you must give him some damages."

[5] We think this error is fatal if the question is properly raised. The exceptions no doubt suffice. The difficulty is with the grounds of appeal. The sixth ground sets forth a large part of the charge, more than two printed pages. This fails to specify as the law requires the specific legal error. Oliver v. Phelps, 21 N. J. Law, 597, 609. The case was not one for a nonsuit or direction of a verdict, since the jury might have inferred malice on the part of the defendant in writing the letters charging fraudulent commercial purposes, and might have inferred that the chattels alleged to have been converted were in fact the property of the plaintiff, regardless of whether he owned the trade name of Blairstown garage.

[6] We have come with some hesitation to the view that the eighth ground of appeal presents the question. It reads as follows:

"The verdict of the jury, under the charge of issue raised by the pleadings." the court, was based on facts not involved in the

We think this is equivalent to an averment that a false issue was left to the jury. We reversed, but without costs. The record must agree that such is the case. The judgment is

be remitted for a new trial.

(88 N. J. Law, 443) PARKER v. HICKSON. (Supreme Court of New Jersey. March 9, 1916.)

1. LIMITATION OF ACTIONS TION OF PERIOD.

46(9)-INITIA

The cause of action of the buyer of realty against the vendor for breach of the latter's. guaranty to hold himself "responsible for any structural defect that may be manifested within a reasonable time after the signing of this agreement" was not barred until six years after the defect became manifested, not six years from the date of the contract, the cause of action accruing when the defect was manifested, since the contract contemplated that at a future period something might make itself manifest that it was against such future event that the vendor was not so at the time of the agreement, and warranted.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 248; Dec. Dig. 46(9).]

2. APPEAL AND ERROR 927(2)—PRESUMPTION AGAINST PLAINTIFF.

there is no presumption against the plaintiff as On motion for nonsuit on the pleadings, to matters of fact not touched on therein.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 3748; Dec. Dig. 927(2).]

3. VENDOR AND PURCHASER 352-REMEDIES OF BUYER-WARRANTY AGAINST DEFECTS QUESTION FOR JURY.

manifest was reasonable, was a question for the jury or the court sitting as such.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. 352.]

(88 N. J. Law, 515)

DOOLITTLE v. HUNDERTMARK. (Supreme Court of New Jersey. March 6, 1916.)

1. SALES 85(1) TRACT-CONDITIONS.

CONSTRUCTION OF CON

Where a party, who furnished post cards for advertising purposes, contracted with a florist to deliver 500 cards per month for a year, agreeing "not to send these cards to any one else

Edwin C. Caffrey, of Newark, for appellant. Howe & Davis, of Orange, for appellee.

GARRISON, J. The plaintiff sued in the district court for damages for a breach of a guaranty and was nonsuited on his state of demand on the ground that his action, having been brought more than six years from the date of the contract sued upon, was barred by the statute of limitations. The precise question is: When does the statute of limitations begin to run on a contract made by the vendor of real estate to hold himself "responsible for any structural defect that may be manifested within a reasonable time after the signing of this agreement"?

Counsel for both parties are agreed that the statute begins to run immediately upon the accrual of the action. But as to the time when the action accrues they disagree. Counsel for the plaintiff contends that the action accrues when the defect "is manifested." Counsel for the defendant and appellee insists that the action accrues as soon as a defect exists, without regard to its manifes

tation.

[1-3] We think that the contention of the plaintiff is the correct one. The language of the contract takes it out of that class of cases in which the statute runs from the date of the contract, the cause of action having then accrued, although not manifest to the senses or known to exist. Here the contract contemplated that at a period future to its date something might make itself manifest that was not so at the time of the signing of the agreement, and it was against this future something that the guarantor expressly warranted. This completely negatives the notion that the parties were dealing only with existing unmanifested defects. Some of the defects enumerated in the state of de mand were or may have been of this nature; e. g., the spreading of the trimmer beam, the falling of the floor of the hearth, and the settling of the bathroom. At what period after the signing of the contract these defects became manifest is not in the case, since the nonsuit was on the pleadings and there is no presumption against the plaintiff. This is a matter of fact that calls for testimony, and whether such time was a reasonable time presents a question for a jury or for the court sitting as such. It was error to nonsuit on the pleadings.

The judgment is reversed.

signed in this city," and substantially similar cards were furnished another florist within the

city, although the design and letterpress were not identical, there was a breach of contract. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 236, 238; Dec. Dig. 85(1).] 2. APPEAL AND ERROR 1010(1, 2)-REVIEW -FINDING OF DISTRICT Court.

The finding of a district court on a material question of fact will not be reversed if there is any evidence to support it, but will be where there is no evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. 1010(1, 2).]

Appeal from District Court of Paterson. Suit by Rollin E. Doolittle, trading as the Art League, against William L. Hundertmark. From a judgment for plaintiff, defendant appeals. Reversed, and case remanded for new trial.

Argued November term, 1915, before PARKER, MINTURN, and KALISCH, JJ. Louis A. Cowley, of Passaic, for appellant. Horton & Tilt, of Paterson, for appellee.

PARKER, J. The suit was brought upon a written contract to take and pay for 500 advertising post cards per month for a year, said postal cards to be of a special design and description. The contract was dated August 10, 1914, and defendant apparently received cards for September, October, November, and December of that year. In January he rescinded the contract and refused to take any more cards, but plaintiff shipped them for January, February, March, and April. The defendant's refusal to take any more cards, or pay for those that had been received, was based upon the following clause in the contract:

"The Art League agrees not to send these cards served for the undersigned in this city; also to any one else in above line of business, reNutley and Rutherford during such time, and this being a part of the consideration."

It was proved, and the trial judge found as a fact, that the plaintiffs supplied a florist in Passaic with postal cards during the period, so that if the latter were within the contract clause, "these cards," which are the same as "your post cards," the plaintiff violated the contract, and defendant was entitled to rescind.

[1] The trial court found that the cards sent to the Passaic party were not like the cards sent to the appellant, and the question of similarity seems to have been determined purely by inspection. If this is supportable as a finding of fact, it is not reversible. The