Henry W. Foster was convicted of unlaw-business on August 9th; the difference confully overdrawing his account, and brings sisting of charges on August 4th and August error. Reversed, and record remitted for 8th. If we assume in favor of the state that new trial. the credit of the note on July 17th was ilArgued February term, 1916, before GUM- legal under the Trust Companies Act, that MERE, C. J., and SWAYZE and BER- accomplished illegality, does not tend to GEN, JJ. prove an overdraft in August. On the con Jerome T. Congleton, of Newark, for plain-trary, the very fact, if it were a fact, that tiff in error. Frederick F. Guild and Wilbur A. Mott, both of Newark, for the State. SWAYZE, J. The defendant was indicted under section 171 of the Crimes Act (C. S. p. 1796) for overdrawing his account in the Roseville Trust Company. His defense was that he had left with Smith, the secretary and treasurer of the trust company, to be sold to country banks, three notes of the Alpha Alcohol Utensil Company; that he understood from Smith that the notes had been sold and that he was entitled to credit for the proceeds. If such had been the fact, the defendant would have had a considerable balance to his credit. In truth, Smith had caused credit to be given the defendant for the proceeds of one of the notes in a form that indicated on the books that it had been discounted by the trust company, and had directed the bookkeeper to leave a line in the ledger for another credit. The second credit was not, in fact, made. After the failure of the bank Smith handed back to the defendant two of the three notes. The note which had been discounted was paid, apparently by the maker, and the defendant made good his overdraft. [1] We think there are two errors that re quire a reversal of the conviction. Smith testified that the note for which Foster received credit was purchased by the trust company at a time when Foster was a director. He was then asked: "Was that note submitted to the board of directors before it was purchased?" This was objected to on the ground that Foster was not on trial for any such offense. The reference was obviously to the crime defined in section 15 of the Trust Companies Act (C. S. p. 5661). The state undertook to justify the question on the ground that the evidence would tend to show the defendant's knowledge of the state of his account. The argument was that, if Foster was in such a financial condition that he found it necessary to do an illegal act in order to get credit, he must have known that his account was overdrawn. The note was credited to the account July 17th. The indictment does not charge any then existing overdraft. The two overdrafts charged in the indictment are both averred to have been made on August 9th; in fact, the check which constituted the overdraft was charged to the account on that day. The only difference between the two counts is that one charges the overdraft to have been the amount of the check; the other charges it to it was an accomplished illegality, would demonstrate that there was no overdraft for two weeks thereafter. Foster would properly think that he might draw on the proceeds of the note. Whatever might be said of the alleged illegal discount as tending to prove a then existing overdraft, it had no tendency to prove future overdrafts, and none other are charged in the indictment. To infer an overdraft in August from evidence from which an overdraft in July might possibly be inferred would not be permissible. We have assumed in favor of the state that the transaction of July 17th was illegal as to Foster. The evidence does not warrant any such conclusion. Both Smith and Foster, who alone knew the facts, testified that the notes were turned over to be discounted at some other institution. If Foster ever knew that the note had been purchased by the Roseville Trust Company, it was not until August 1st. Section 15 of the Trust Companies Act requires that the act shall be done knowingly to constitute the crime. Smith, of course, had knowledge, but, in the absence of proof of knowledge by Foster of what Smith had done, Foster was guilty of nothing illegal. Under these circumstances the evidence allowed over objection that the note was not submitted to the board of directors was most prejudicial to the defendant. The court admitted it on the theory that Foster's knowl edge of the alleged illegality tended to prove that he knew his account was overdrawn, and the jury could not have avoided the inference that Foster was so desperate that, in order to escape the consequence of overdrawing, he would participate in a criminal discount by the trust company. How prejudicial the evidence was is shown by the charge of the judge. He referred at some length to the fifteenth section of the Trust Companies Act, and said that the office of director was not one thrust upon the incumbent, but was assumed and held voluntarily by him. "He must, therefore, be expected to assume, with the office, the full measure of responsibility incidental to it." This portion of the charge was not germane to the case unless the judge meant to give the jury the impression that the defendant might be convicted for a violation of the Trust Companies Act. It was error because no such violation was charged in the indictment. [2] There is another error. Smith, when recalled by the state, testified, in answer to questions by the court, that only one of the notes appeared in the account; that he did not see the other two until handed back to In case the option was not exercised by Jeffcott and all its terms complied with, the note was to be paid at maturity. If Jeff cott purchased the premises, the $1,000 paid, represented by the cash and the note, was to be counsel for defendant on cross-examination asked Smith if he did not after the bank closed return the two notes to Foster and express sorrow that he had involved the latter; that he had not had the notes discounted (taking them out of his wallet and hand-credited on the purchase price. On August ing them to Foster). This was excluded because the court said the conversation be tween Foster and the witness could not bind the state. That, however, was not the question. The state had been allowed to put in Smith's evidence tending, as it thought, to show guilty knowledge on the part of Foster. It was vital to the defendant to show that he had no such knowledge, and any testimony that would show that he was relying on Smith's statement on July 17th that Smith had disposed of the note, and that it was all right to draw on the account, was competent. When Smith denied any recollection of the conversation, it was proper by way of stimulating his memory or discrediting him to show what he said at a later time. For these errors, the judgment must be reversed, and the record remitted for a new trial. (89 N. J. Law, 34) PERLEE v. JEFFCOTT. 20, 1914, the barn, which added substantially to the value of the premises, was struck by lightning, and, with other outbuildings, was totally destroyed. There is a suggestion in the case that the option was extended for two days from September 1, 1914, but no proof that this extension was by mutual agreement, or that it was anything more than the voluntary act of Perlee. On September 2d Jeffcott demanded the return of the cash and the note. On September 3d Perlee by written notice offered to extend the option to September 10th and to reduce the purchase price by $2,000 on account of the loss by fire. The defendant had insured the house and premises for $5,000 about two months after the date of the option. This suit was brought on the note in January, 1915, and Jeffcott counterclaimed the cash he had paid. The trial judge gave judgment for the plaintiff for the amount of the note, and also on the counterclaim. Argued November term, 1915, before GUM (Supreme Court of New Jersey. June 6, 1916.) MERE, C. J., and SWAYZE and BERGEN, (Syllabus by the Court.) JJ. Hugh K. Gaston, of Somerville, for appel- 1. CONTRACTS 309(2)—PERFORMANCE-EX- lant. CUSE FOR NONPERFORMANCE. When the performance of a contract depends on the continued existence of a given person or thing, a condition is implied that impossibility of performance arising from the perishing of the person or thing shall excuse the performance. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1444-1446; Dec. Dig. 309(2). 2. VENDOR AND PURCHASER 109 PERFORMANCE-EXCUSE FOR NONPERFORMANCE. The owner of a farm gave an option to buy for one year. Five hundred dollars was paid the owner in cash, and a note was given him payable in a year for the same amount. Prior to the expiration of the year the barn, which added substantially to the value of the premises, was struck by lightning and destroyed. The prospective vendee reclaimed the cash paid and failed to pay the note. Held, that the cash could not be reclaimed, and recovery could not be had on the note. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 193-195; Dec. Dig. 109.] Appeal from Circuit Court, Somerset County. Action by John H. Perlee against Robert C. Jeffcott. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. On August 30, 1913, Perlee, by writing under his hand and seal, in consideration of $500 cash and a promissory note for $500 payable September 1, 1914, gave and granted to Jeffcott an option to purchase a farm. respondent. SWAYZE, J. (after stating the facts as above). [1, 2] The only ground upon which the cash paid by Jeffcott may be reclaimed is that there was a total failure of considera tion. The consideration in a legal sense was Perlee's promise to keep the offer to sell open for a year. It was the promise, not the performance. The offer itself was a continuing offer, open to Jeffcott's acceptance at any time, and Perlee's promise was partially performed. Jeffcott has had the benefit of the option, and Perlee has suffered the detriment of being unable to sell or mortgage or lease his property for nearly the whole year. What has happened has been, not a total failure of consideration, but an inability to perform, due, not to any fault of either party, but to an act of God. The contract was for the conveyance of a specific thing-the farm and premises upon which Jeffcott resided. Both parties undoubtedly contemplated the conveyance of the buildings as an essential part of the premises. The destruction of the barn made this impossible. Such a contract is to be construed as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. Taylor v. Caldwell, 3 B. & S. 826, 834. In that case Blackburn, J., said: "The principle seems to us to be that in contracts in which the performance depends on the continued existence of a given person or thing a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance." Taylor v. Caldwell is the leading case. It has been approved by our Court of Errors and Appeals in Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, at 252, 45 Atl. 692, 49 L. R. A. 572, 81 Am. St. Rep. 467, and was there recognized as an exception to the rule. It has been followed and applied under varying states of fact in several cases growing out of contracts made in view of the proposed coronation of Edward VII, which was postponed on account of his illness. Elliott v. Crutchley, [1903] 2 K. B. 476, affirmed [1904] 1 K. B. 565; Herne Bay Steamboat Co. v. Hutton, [1903] 2 K. B. 683; Krell v. Henry, [1903] 2 K. B. 740; Civil Service Co-operative Society v. General We think therefore that the trial judge was right in giving judgment for the plain tiff on Jeffcott's counterclaim to recover the cash paid. the others. In such case the contract as changed has not been awarded to the lowest bidder in any legal sense, and an ordinance which undertakes to make the purchase for such purpose is ultra vires. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 673; Dec. Dig. 241.] Certiorari prosecuted by William Riddle against the City of Atlantic City to review two ordinances passed by the board of commissioners of the city. Ordinances set aside. Argued February term, 1916, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ. Lewis Starr, of Camden, for prosecutor. Harry Wootton and Clarence L. Cole, both of Atlantic City, for respondent. lowed in this case brings under review two BERGEN, J. The writ of certiorari alordinances passed by the commissioners of of certain buildings and equipment "being Atlantic City, one providing for the purchase used for municipal storage purposes, purposes incident to the disposal of waste materials in said city, and other like public purposes," at The same reasoning leads us to think he was wrong in giving judgment against the de-a cost not to exceed $40,000, and the other fendant for the amount of the note. This note was not due when the performance of the contract became impossible by reason of the fire. Both parties were excused from further performance. Jeffcott was excused from payment of the note as Perlee was excused from his promise to keep the option open for the whole year. The option providon account of the purchase price of the farm, Since the farm could no longer be conveyed in the condition contemplated by the parties, the contract in this respect could not be carried out. There should have been judgment for the defendant in the claim on the note. The judgment must be reversed, but with ed that the note when paid should be credited out costs, and the record remitted for a new trial. (89 N. J. Law, 122) RIDDLE v. ATLANTIC CITY. (Supreme Court of New Jersey. June 6, 1916.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 873, 910 CONTRACTS-ISSUANCE OF BONDS. - A city incorporated under P. L. 1902, p. 284, has no power, after it has made a contract for the removal and disposal of garbage, to purchase a plant in aid of the contractor, or to issue bonds to raise the money to pay therefor. providing for the issuing of bonds of the city of Atlantic City in an amount not exceeding $40,000 for the purpose of obtaining money for the payment of the property directed to be purchased by the first ordinance. The ordinance directing the purchase was approved January 6, 1916, and that authorizing the issuing of the bonds on January 27, 1916., The prosecutor claims that the city has no legal authority to make the purchase provided for by the first ordinance, and, as a necessary sequence, that the issue of bonds for the purpose of raising money to pay the cost of such purchase was unauthorized. [1, 2] The pertinent facts necessary to be follows: In 1911 a contract was made by the considered in disposition of this cause are as Atlantic Product Company with the city of Atlantic City by the terms of which the company agreed to collect and dispose of the garbage of the city for a term which expires August 31, 1916. In carrying out its contract the company cremated the garbage at its plant located on land leased from the city at Clam creek within the city limits. In 1915 some of the citizens of Atlantic City, conceiving that the disposal works as located were detrimental to the city, principally because of the escape of noxious odors, organized a corporation called the Farmers' Supply & Product Company for the purpose of obtaining a contract with the city for the disposal of garbage at some point beyond the city limSuch a contract must be let to the lowest its, intending to erect a disposal plant at responsible bidder, and, where the invitation to Crab Island, about 18 miles from the city, bidders does not provide for it, a subsequent ar- and when bids were called for by the city rangement under which the city is to purchase a for a contract for the collection and disposal plant and machinery and turn over the machinery, without the cost, to the successful bidder, is of garbage after August 31, 1916, the new giving an unfair advantage to one bidder over company, being the lowest bidder, was award [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1845-1850, 1897, 1898, 1900; Dec. Dig. 873, 910.] 2. MUNICIPAL CORPORATIONS 241-CON TRACTS COMPETITIVE BIDDING. and its value, based upon the rental, which was $200 a year, would hardly justify the expenditure of $40,000, the interest upon which would greatly exceed the income which the city was to receive. Stripped of all subtlety the plain effect of the proposed purchase by the city was to furnish the Farmers' Supply & Product Company with sufficient capital to buy the capital stock of the olā company. It was sought by the form of the ordinance to conceal this purpose, but a court cannot shut its eyes and refuse to see the real purpose which this record discloses. Under the charter of Atlantic City (P. L. 1902, p. 284) by subdivision 19 of section 14, the city is authorized to adopt ordinances, among other things, "to provide for the collection and disposition of offal, garbage, wastes, and all refuse matter which may become dangerous to the public health and to establish and empower the local board of health established, or to be established, in such city, to make collection and disposition thereof or to provide therefor, and in case such board is given such power and authority, it is hereby authorized to accept the same, and given power to collect and dispose of all such refuse matter." This act must be construed in connection with another (P. L.1902, p. 200), which authorizes the making of contracts to remove garbage for a term not exceeding five years. Townsend v. Atlantic City, 72 N. J. Law, 474, 65 Atl. 509. But neither statute authorizes the use of the credit of the city for the benefit of a private corporation, nor does either in express terms authorize the issuing of bonds for the purchase of lands for the purpose of cremating garbage; such ed the contract, which was duly executed | no reason why the city should purchase this November 19, 1915, in terms requiring the plant for the benefit of the new company, disposal works to be located outside of the city, the term being five years from September 1, 1916. The proceedings up to this point are not assailed because under this contract the city was not required to provide any part of the plant, and therefore no bond issue was necessary, but the dispute arises over what subsequently occurred. It appears from this record that the promoters of the new company, being to some extent persons interested in certain of the larger hotels of Atlantic City, desiring the removal of the disposal station to Crab Island before the opening of the summer season of 1916, in order to abate the alleged nuisance during that period, undertook to acquire the plant of the Atlantic Product Company, so that the disposal works might be removed to Crab Island as early in the season as possible, and to take over the remainder of the term contracted for by the Atlantic Product Company, and in order to accomplish this the new company decided to buy the stock of the old company, or at least to have it in the hands of its friends, and a contract was made between the stockholders of the Atlantic Product Company, and a representative of the new company, which provided for the purchase of this stock for $40,000, and thereafter and on the 8th of December, 1915, the Farmers' Supply & Product Company submitted to the city a proposition in which it was represented that it had procured an option for the purchase from the Atlantic Product Company of their garbage plant in the city, at the price of $40,000, and offering to sell the plant consisting of buildings and machinery to the city for the sum of $40,000, retaining without rent so much of the machinery and appliances as it wish-purpose not being within the authority found ed in the execution of its contract for five years, or of any renewal thereof, and it was the acceptance of this proposition which the ordinance of purchase manifested. in section 104 of the act of 1902 "for the removal and disposition of the sewage thereof." Nor do we think the act of 1895 (P. L. p. 101) authorizes the present issue of bonds. It does not require a great amount of The first section of that act provides that acumen to see that the purpose of this pro-when it shall be necessary to cremate garbage ceeding was to furnish to the new company it shall be lawful for the common council or the capital required to purchase the stock of other governing body to purchase, in the the old company. The city owned the land, name of the city, all necessary lands and the buildings and machinery belonged to the real estate, and to erect thereon a building old company, and there is nothing in this or buildings and equip the same with all neccase which shows that the new company was essary appliances. This section applies only simply purchasing the buildings and machin- when the city is itself carrying on the busiery for $40,000. All that appears is that they ness. Section 3 provides that where it is were to pay not exceeding $40,000 for the more advantageous for the city to have the capital stock of the old company. What the garbage cremated by persons other than the city was purchasing was a building on its city, "and at a crematory not owned by the own land and some machinery, a part of municipal corporation," it shall be lawful which the new company, according to its to provide for such cremation by contract proposition, expected to retain and remove to and to raise annually the sum needed to deCrab Island for the purpose of executing its fray expense. This does not authorize the contract, not only during the summer of purchase of a plant nor the issue of bonds 1916, until the old contract expired, but dur- to pay therefor. The second section of the ing the continuance of its own contract for act of 1895 provides for the issue of bonds five years, and all renewals thereof. The where the city is itself cremating, but we land and the buildings had been leased to can find no authority in the statute which 4. tract at a price agreed upon for the removal | instantly killed, compensation may be awarded and disposal of its garbage, to purchase prop- beginning with the time of his death. erty in aid of the contractor and lease it to [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 386(1).] him for a nominal sum. The bid was made WORK. without reference to any such concession, and MASTER AND SERVANT 412 MAN'S COMPENSATION-REVIEW OF AWARD. it would be manifestly unfair to all other bidThe mere fact that a judgment awarding ders, for, if this be permissible, the city compensation required it to be paid weekly on could, after it had made its contract, with-each Saturday does not require modification or reversal of the judgment; but, if inconvenience out reference to any such condition, purchase or trouble results, application to the trial court Crab Island and then lease it to a favorite is the proper method for relief. contractor for a nominal sum. The act of 1902 (P. L. p. 200) requires that such contracts shall only be made with the lowest responsible bidder, and if, after the bid is awarded to the lowest responsible bidder, the city can subsequently expend $40,000 for the benefit of such bidder, without affording all other bidders a like opportunity, then the person to whom the contract is awarded is not the lowest bidder in a legal sense. We think these ordinances are ultra vires, and ought to be set aside, for two reasons: First, because the purchase was a mere subterfuge to furnish capital to the Farmers' Supply & Product Company; and, second, because to permit them to stand would be giving the supposed lowest bidder an advantage not accorded to other bidders, and amounts, in substance, to the making of another contract, not advertised as required by law, because the effect is to increase the price paid beyond that which was bid and upon which the contract was based. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 412.] 5. MASTER AND SERVANT 400 WORKMAN'S COMPENSATION-WHO MAY SUE-AD MINISTRATOR. Workmen's Compensation Act, § 19, providing that, where no executor or administrator is qualified, the judge shall direct payment to such person as would be appointed administrator of the deceased's estate, contemplates that the administrator may sue for compensation if he has qualified. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 400.] 6. MASTER AND SERVANT 388 WORK Workmen's Compensation Act, as amended by Laws 1913, p. 302, providing certain percentage of compensation for each dependent partion on the basis of dependency, and not minorent, or sister, or children, provides compensaity of persons within the classes named. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.] 7. MASTER AND SERVANT 388 WORKMAN'S COMPENSATION-DEPENDENTS. The provision of Workmen's Compensation Act, as amended by Laws of 1913, p. 302, relat The ordinance will be set aside, with costs. ing to distribution of compensation to orphans 2. MASTER AND SERVANT 386(1) WORKMAN'S COMPENSATION ACTS - COMPUTATION OF COMPENSATION. Workmen's Compensation Act (P. L. 1911, p. 134), providing that the weekly wages shall be taken to be six times the average daily earnings for a working day of ordinary length, excluding overtime, does not apply when the serv ant receives a fixed wage per day, but only when his wage is fixed by his output. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 386(1).] and other children, applies only to children of the deceased workman, and not to his brothers or sisters. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.] 8. MASTER AND SERVANT 388-WORKMAN'S COMPENSATION-DEPENDENT.' Where deceased, though of age, turned over his wages to his father, and deceased's sister received substantial benefit therefrom, an award of compensation to her, whether she was adult or minor, was justified. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388. For other definitions, see Words and Phrases, 388-WORKMAN'S Actual dependency of an adult sister of deceased workman is a question of fact, depending on whether she was wholly or in substantial degree supported by deceased. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.] 10. MASTER AND SERVANT 388 WORKMAN'S COMPENSATION-DEPENDENTS. Although deceased's father and sister worked and contributed earnings to the general family support, where deceased's earnings were also used therefor, the amount exceeding the cost of his board, lodging, and other expenses, it was a legitimate inference that the family received substantial support from deceased, so as to justify an award of compensation. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 388.] Certiorari to Court of Common Pleas, Hudson County. |