acted on, by use of the privileges it contains. | street railway tracks thereon, or to consent The paving involved was not done in strict to the use of electricity as a motive power. accordance with the provisions of the ordinance; hence the agreement of November 15, 1915, was entered into to meet this situation. When the paving was completed, the Public Service Railway Company paved the portion east of Centre street in Merchantville, but contests its obligation to pay for that portion west of Centre street. The agreement, executed November 15, 1915, provides that, whereas, there had been certain controversies between the borough and the company as to the latter's paving obligations, to facilitate the improvement, both borough and company agreed that, so far as the paving is concerned from Centre street eastward, there is no dispute as to the obligation of the company to repave under the ordinance of December 18, 1900, such paving is to be considered to be done at the expense of the borough. As to the portion west of Centre street, a like stipulation is made, with the reservation that the company denies its obligation under the ordinance. Then follows this language: "When such paving, done in the manner aforesaid, is completed, it shall be deemed to have been done in accordance with the requirements named in section 6 of the aforesaid ordi nance." The portions of the street not falling to the company were then paved, partly at the expense of the borough, of the state, and of the county. The part falling to the company was paved by the borough; the bill for the amount expended under the ordinance by the borough, for repaving between and along the tracks, was forwarded to the company. The trial court further found the agreement of November 15, 1915, was the result of long negotiations between the borough and the company. Payment was actually made for a portion; the dispute of liability for the present paving rested wholly on other grounds. The agreement was actually carried out as contemplated by the parties. These were the facts before the trial court. [5] The appellant now argues that the judgment should be reversed, and insists, first, that, the Camden Horse Railroad Company, by its charter, had full right to lay an additional track and to extend its tracks to the east line of the borough, subject only to the right of the turnpike company to object. This is not so, because the company's charter was subject to alteration by the Legislature. P. L. 1866, p. 640, par. 13. It was altered by the two acts of the Legislature. P. L. 1896, p. 329 (4 Comp. Sts. p. 5040, par. 147); P. L. 1896, p. 357 (4 Comp. Sts. p. 504, par. 150). See also P. L. 1893, p. 144 (4 Comp. Sts. p. 5017, par. 86). [6] Second. The borough of Merchantville had no jurisdiction over the turnpike com This cannot be so. If the matter was doubtful before 1896, the two statutes of that year, referred to under the first point, make this legislation applicable to"any street, avenue, highway or other public place in any city, town, township, village or borough of this state." [2] Third. The new work could not be done without the consent of the turnpike company. This was never given. This is a matter of fact so treated by the trial judge. The turnpike company stood by and saw the work done without objection. This raises a presumption of consent, if consent was need ed. The defendant company is estopped from raising any such matter of defense. [3,7] The insistence next is: The second track west of Centre street was laid under the charter grant. This is not so in fact. It was laid under the authority of the ordinance. The act (P. L. 1893, p. 144) prohibited the laying of any tracks without municipal consent, and to that extent altered the charter. Moreover, the company could not ask for permission to extend its line and double-track it throughout the borough, and having received permission to do that thing, as a unit, carrying out part, but not all of the scheme. The company having accepted the ordinance in its entirety, it must accept the burdens. It cannot accept the benefits and reject the burdens. Borough, etc., of Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84. [8] The next point is: The act of 1893 (P. L. 1893, p. 144 [4 Comp. Sts. p. 5017]), was repealed by a later act of that year-March 16, 1893 (P. L. 1893, p. 342)—which provided that the function of the borough should be limited to a designation of the location of the track or tracks of such street railway company, upon the roadbed of such turnpike company, when the railroad was built on a turnpike. If this be true, then the later act was in turn repealed pro tanto by the acts of 1896, referred to under point 1. [9] Again, it is urged: The borough of Merchantville never had jurisdiction over the turnpike prior to its conveyance to the county on November 7, 1913. The borough was expressly prohibited by law from exercising any jurisdiction or control over the roadway of the turnpike. This is not so. The act (P. L. 1905, p. 325) authorizing the purchase of turnpikes by boards of freeholders and vesting exclusive control over them by the latter did not take from the borough the power to consent to or refuse the building or extending a street railroad over the portion of a highway within its limits. It may be that the paving of Maple avenue by the borough was ultra vires; but that is no bar to the right of the borough to enforce (113 A.) tion it assumed when it accepted the ordi- by the Supreme Court, and defendant apnance. Borough, etc., of Rutherford v. Hud-peals. Appeal dismissed. son River Traction Co., 73 N. J. Law, 227, 63 Atl. 84. [4] Again it is said: The proper method of providing for the paving should have been by ordinance, instead of by resolution. But, assuming this to be true, the defendant company cannot raise that question collaterally. Moreover, it cannot stand by and see the work done under the resolution, and then raise the question of the propriety of the procedure. [10] Finally, it is said: The pavement was not laid "under the direction and at the expense of said borough," and therefore it is not within the contract contained in the ordinance of December 18, 1900. The complete answer to this is: By the stipulation in the agreement of November 15, 1915, it was agreed that: Elmer W. Romine, of Morristown, for appellant. Charles A. Rathbun, of Morristown, for respondent. PER CURIAM. This was an action on contract in the first judicial district court of the county of Morris. The plaintiff had judgment, and an appeal was taken to the Supreme Court where it was affirmed, whereupon the defendant appealed to this court. The plaintiff-respondent contends before us that none of the 10 grounds of appeal filed in this court conform to proper procedure, and moves us to hold the defendant-appellant to a compliance with the method of appellate procedure laid down by this court, citing State v. Verona, 93 N. J. Law, 389, 108 Atl. 250; Thompson v. East Orange, 109 Atl. 340; State v. Metzler, 110 Atl. 922. "Such paving is to be considered as done under the direction and at the expense of the [1, 2] There is no ground of appeal in this borough from curb to curb, notwithstanding the Court, stating that the Supreme Court erred above recited facts, * * in any legal ac- in giving judgment for the plaintiff-respondtion which may be taken by the borough to en-ent, instead of for the defendant-appellant, force payment." There is no need of extending this discussion further. There is no legal merit in any of the other points raised or argued. Our conclusion therefore is, finding no error in the record, the judgment of the Supreme Court is affirmed, with costs. (95 N. J. Law, 540) DIAMOND MILLS PAPER CO. v. LEONARD HYGIENE ICE CO. (No. 38.) the only proper assignment under the cases cited. Besides, several of the grounds of court below, which is also bad. McCarty v. appeal go to the finding or opinion of the West Hoboken, 93 N. J. Law, 247, 107 Atl. 265; Birtwistle v. Public Service Ry. Co., No. 57, 112 Atl. 193, March term, 1920. As there is no ground of appeal in the record before us which raises in this court alleged error in the court below, the present appeal will be dismissed. (92 N. J. Law, 445) (Court of Errors and Appeals of New Jersey. OKIN et al. v. BROAD & MARKET NAT. Feb. 28, 1921.) (Syllabus by the Court.) BANK et al. (No. 57.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) 1. Appeal and error 719(11), 722(1)—Ap- Where no ground of appeal in a record before the Court of Errors and Appeals raises in that court any alleged error in the court below, the appeal will be dismissed. (Additional Syllabus by Editorial Staff.) 2. Appeal and error 854(1)-Grounds of appeal, complaining of finding and opinion of Supreme Court, are bad. On an appeal from the Supreme Court, grounds of appeal, going to the finding or opinion of the court below, are bad. Appeal from Supreme Court. Action by the Diamond Mills Paper Company against the Leonard Hygiene Ice Company. A judgment for plaintiff was affirmed (Syllabus by the Court.) 95—Party seeking relief must himself be ready to pay amount admitted, or such as court finds to be due. A borrower, filing a bill in chancery to be relieved from a usurious charge or contract, must tender himself ready and willing to pay the amount he admits to be due, or, if not, to pay such amount as the court shall find to be due. 3. Usury 95-When debtor sues for relief before maturity he must do equity. Where complainants had the privilege of paying a debt before maturity, and filed a bill in equity prior to maturity to be relieved of usury, they were under the same obligation to do equity by tendering the amount admitted to be due, or which the court might find to be due, as if they had waited until maturity. Appeal from Court of Chancery. Suit by Joseph Okin and others against the Broad & Market National Bank and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed. Aaron Marder, of Newark, for appellants. spondents. WHITE, J. The respondent bank, the holder, as collateral to secure a loan made by it to the complainant Okin of a duly executed and recorded assignment of a $15, 000 interest in a second mortgage for $59,000, which Okin owned on a theater in the city of Newark, purchased said mortgage at a private sale thereof made under a power to make sale in case of default in a previous assignment of the same mortgage as collateral security for another debt of Okin's for sence of this contract, and that upon default by them, the parties of the second part, the party of the first part [respondent] shall hold said mortgage absolutely free and discharged of any right in or claim against the same by reason of this agreement. "And the parties of the second part further of redemption in said mortgage, except such as covenant and agree that they have no equity is provided for in this agreement." Complainants thereupon paid the $3,000 consideration above mentioned to the respondents, and the agreement has since been carried out according to its terms, except that the respondent bank took promissory notes from complainants, and had them reg ularly renewed each six months since the agreement was signed for the original debts of $19,000 and $15,000 respectively. Rethe transaction appear on its books as a live spondent says this was done simply to make asset to please the Banking Department, but complainants claim that it evidences what they testified was the fact, namely, that in reality the agreement in writing was but a cover to hide the usurious nature of the real transaction, which was, as previously agreed would take over the Shiman assignment and between them, that the respondent bank debt of $19,000, and should extend the time of payment of both this and the $15,000 debt, which it already held until May of 1920, for which it was to receive the usurious consid terest on the debts in the meantime. Shortly prior to the due date of the mortgage complainants notified the respondent bank to require payment of the principal of the mortgage. Instead of doing this, the respondent bank, as complainants claim, extended the time of payment of said mortgage for an additional year, without consulting complainants about so doing; and thereupon, on September 15, 1919, complainants filed this bill, in which they pray, among certain other incidental reliefs, that the respondents be directed to foreclose the mortgage and account for the proceeds, and that the court decree that the amount which respondents are entitled to receive in full settlement is the sum of $31,000; that is, the bare principal of the debts without interest, and less the $3,000 alleged usurious payment heretofore received. $19,000, due one Shiman, which latter sum was the amount paid by the respondent for the mortgage at said private sale. Respond-eration of $3,000 in addition to lawful inent thereupon, upon the same day, namely, October 30, 1916, entered into an agreement in writing, duly acknowledged and recorded, with the complainants, whereby, in consideration of $3,000 then paid, respondent agreed to sell said mortgage to complainants for the sum of $34,000, to be paid on or before May 29, 1920 (which date was about one year after the due date of the mortgage), the interest on the mortgage in the meantime to be collected by respondent and applied: First to the interest on said sum of $34,000; second to taxes, etc.; third to repayment of attorney's fees, etc.; should respondents foreclose the mortgage; and, fourth any surplus of interest to be paid to complainants. The agreement further provided that should the mortgage be paid off or realized upon in foreclosure proceedings in the meantime, the principal should be applied in the same manner; and, further, should respondent foreclose and buy in the property, it agreed to convey the same to the complainants in consideration of receiving a purchase-money mortgage for $34,000, drawn to fall due on the said 29th day of May, 1920. The agreement further provided: "The parties of the second part [complainants] further convenant and agree that should they fail to perform this agreement in every particular on or before the 29th day of May, 1920, that they shall have no right, to or claim against said mortgage, time being of the es [1, 2] The difficulty with the first of these two prayers is that the respondent did not undertake in the agreement to foreclose the mortgage at maturity, or at any other time, but only to assign the mortgage on or before the specified date, and, this agreement being recorded, any extension of the mortgage without complainants' knowledge would, of course, be subject to their rights under the agreement; and the trouble with the second of said two prayers is that it appears in the case that the complainants have not made (113 A.) TRENCHARD, J. The plaintiff below brought this action to recover damages claimed to have resulted from the defendant's failure to deliver 200 pieces of silk sold to the plaintiff. any tender of the amount which according] Hudson & Joelson and Walter R. Hudson, to their own contention the respondents are all of Paterson, for respondent. entitled to receive before parting with what complainants say is simply security, nor do complainants in their bill filed in this case tender themselves ready to pay said amount or to pay such amount as the court shall find to be the proper amount. Miller v. Ford, 1 N. J. Eq. 359; Ware v. Thompson's Adm'rs, 13 N. J. Eq. 66; Giveans v. McMurtry, 16 N. J. Eq. 473; Vandeveer v. Holcomb, 17 N. J. Eq. 547. [3] But it is urged that such a tender was not required in this case because the bill was filed September 15, 1919, and under the agreement complainants did not have to make any payment until May 29, 1920. Complainants, however, had the privilege of paying at any time before the latter date, and as they saw fit to ask the aid of equity at the earlier date they were under the same obligation to do equity then as if they had waited until later. We think, therefore, that for the reasons above stated the Vice Chancellor was right in dismissing the bill, and the decree is hereby affirmed, with costs. (95 N. J. Law, 443) KESSLER v. FUCHS. (No. 45.) The jury, at the Passaic circuit, rendered a verdict for the defendant, and the plaintiff appeals from the consequent judgment. We are of the opinion that the judgment should not be disturbed. At the trial the plaintiff admitted that he received from the defendant, and had paid for, 94 of the 200 pieces mentioned, and the defendant admitted that he had not delivered the remaining 106 pieces. The defense was that the defendant was not required to deliver the 106 pieces because the contract therefor was rescinded or canceled by mutual consent. [1] The plaintiff (appellant) first contends on this appeal that, in view of the statute of frauds, this written agreement for the sale of goods could not be rescinded or canceled by word of mouth. But that is not so. As a matter of fact the original agreement seems to have been partly written and partly oral, but that is not important. The rule is that a parol executory contract for the sale of goods may be discharged by an express agree (Court of Errors and Appeals of New Jersey.ment that it shall no longer bind either parFeb. 28, 1921.) (Syllabus by the Court.) 1. Frauds, statute of 140-Parol executory contract of sale may be discharged by express agreement, whether original contract within statute or not. A parol executory contract for the sale of goods may be discharged by an express agreement, either in writing or by word of mouth, that it shall no longer bind either party, and this is so whether or not the original contract is one required by the statute of frauds to be in writing. 2. Principal and agent 103(14)-Vendee cannot deny agent's authority to rescind sale of goods where principal asserts such authority. The general rule is that, if the principal asserts the authority of the agent to rescind a sale of goods, third parties will not be heard to deny it. Accordingly, where the agent agrees with the vendee to a rescission of the sale, and the agent's principal asserts the authority of the agent to so rescind, the vendee will not be heard to deny the agent's authority. Appeal from Supreme Court. Action by Harry Kessler against David Fuchs. Judgment for defendant, and plain tiff appeals. Affirmed. ty, and this may be done by writing or by word of mouth, and this is so whether or not the original contract is one required by the statute of frauds to be in writing. See cases collected in 25 R. C. L. p. 712. But the appellant further contends that, even so, there was no legal evidence of such rescission or cancellation by mutual consent, and he insists that the judge erred in not so directing the jury. The solution of the comprehensive question thus raised will dispose of every remaining question argued on this appeal, though variously stated. Now the record discloses that the sales agent of the defendant testified that, after the 94 pieces of silk (not now in question) had been delivered, he and the plaintiff, at the instance of the latter, agreed to the cancellation of the order for the remaining goods now in question. But that is not all. Another witness for the defendant testified that later the plaintiff admitted that the contract had been so canceled. True, the plaintiff at the trial denied that there had been a cancellation of the contract, but, as this case is presented to us, it is not our function to determine the truth of this matter. Nor is the reason which actuated the plaintiff in suggesting or acquiescing in a rescission of Arthur H. Bissell, of Montclair, for appel- the contract of any importance. We are not lant. concerned with whether it was because he was not fully satisfied with the goods previously delivered, or because of the falling market as the defendant insists. The important and controlling factor is that the evidence referred to raised a question with respect to rescission which the judge was required to submit to the jury. In this same connection the appellant argues that there was no legal rescission of the contract because, as he contends, the defendant's sales agent had no authority to rescind it. [2] But that argument cannot avail the appellant. We have not stopped to examine the record for evidence of express authority of the sales agent to rescind the contract of sale, nor for acts and conduct of the defendant the equivalent to a grant of express authority. It is sufficient in the instant case to say that the general rule is that, if the principle asserts the authority of the agent to rescind a sale of goods, third parties will not be heard to deny it. Accordingly where, as here, the agent agrees with the vendee to a rescission of the sale, and the agent's principal asserts the authority of the agent to so rescind, the vendee will not be heard to deny the agent's authority. Sturtevant V. Orser, 24 N. Y. 538, 82 Am. Dec. 321. rule 102, for failure of plaintiff in error to furnish any brief, the judgment should have recited the default of plaintiff in error as the reason for the affirmance, and not that the cause was duly submitted and considered by the court, etc. Error to Supreme Court. Stanislaus Belkota was convicted of assault and battery, with intent to carnally abuse, and his conviction was affirmed by the Supreme Court, and he brings error. Affirmed. Frank M. McDermit, of Newark, for plaintiff in error. J. Henry Harrison, Prosecutor of the Pleas, of Newark, for the State. WALKER, C. The plaintiff in error was convicted in the Essex quarter sessions of assault and battery, with intent to carnally abuse Mary Tylecki. A writ of error to the Supreme Court was sued out, and in that tribunal a per curiam was filed, which reads as follows: "The writ in this cause brings up a conviction had on an indictment charging the defendant with assault and carnal abuse. The case was regularly placed upon the list at The judgment will be affirmed, with costs. the present term, and on the first call it was (95 N. J. Law, 416) STATE v. BELKOTA. (No. 29.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) (Syllabus by the Court.) 1. Criminal law 1179-Questions not considered in Court of Errors and Appeals, when appeal abandoned in Supreme Court. Where a party removes a judgment against him in a trial court into the Supreme Court for review, and there abandons the appeal, for which reason the judgment is affirmed in that tribunal, and he then removes the Supreme Court's judgment into this court for review, he will not be heard here, because not entitled to raise questions in this court that he did not present and argue in the Supreme Court. 2. Criminal law 1129(2)-On error to Supreme Court errors should be assigned on judgment of that court. On error from this court to the Supreme Court the appealing party is not entitled to be heard where he does not assign error on the judgment of the Supreme Court, but only alleges error on the record made in the trial court. (Additional Syllabus by Editorial Staff.) 3. Criminal law 1191 - Proper recitals of judgment of affirmance for want of brief stated. Where a judgment of conviction was affirmed by the Supreme Court, under Supreme Court agreed by counsel that it should be submitted on briefs. Counsel for the plaintiff in error, notwithstanding this agreement, has failed to furnish the court with any brief on behalf of his client. In this situation of the case the state is entitled to judgment in its favor. Supreme Court rule No. 102. It will be so or dered." [3] So much of the rule mentioned (102) as is applicable provides that if the party noticing the cause shall not bring on the argument the opposite party shall be entitled to a dismissal or a judgment in his favor, unless the court shall otherwise order. The court in this case chose to affirm the judgment of the quarter sessions, and judgment of affirmance was accordingly entered in the Supreme Court. That judgment, drawn and entered by counsel, contains an inadvertent misrecital, for it states that, the cause having been duly submitted and the court having considered the matter and finding no error in the record, the judgment is affirmed, etc. It should have recited the default of the plaintiff in error as the reason for the affirm ance. [1] Upon the judgment of affirmance in the Supreme Court, the defendant in error sued out a writ of error to this court, and again it was agreed that the cause should be submitted on briefs, and briefs by both sides were submitted. Notwithstanding the course taken by counsel, there is nothing before this court entitling the plaintiff in error to have the case considered here. It has been repeatedly decided that a ques |