93 N. J. L. Maitland v. Police Commr's City of Garfield.

"The widow or children of any member of such police force who shall have lost his life in the performance of his duty. shall, so long as such widow remains unmarried or so long as such children or any of them remain under the age of sixteen years, receive a pension equal to one-half of the amount of the salary of such member of said police force at the time of his death; provided, however, that if such police officer leaves a widow and children, said pension shall be paid to the widow so long as she remains unmarried, and in case such member of said police force shall leave children and no widow, then such pension shall be paid to such of said children who have not attained the age of sixteen years, in equal shares."

John Maitland, whose widow is the plaintiff-respondent, was a member of the police force of the city of Garfield for several years. On October 22d, 1917, he was not feeling well when he went on duty. His wife testified that the last night he went to work was foggy, damp and blustery. He came home at four o'clock in the morning sick, having taken a chill on his beat. Dr. Reed, the physician who attended him, said he had a bad cold-a grippe condition; and after twenty-four hours it developed into pneumonia, and he died.

The legislature passed a supplement to the above-mentioned act in 1916 (Pamph. L., p. 298), but the supplement. does not apply in the case at bar, and therefore will not be considered.

There was an earlier police pension act which provided for a pension to the widow of an officer who had lost his life in the performance of duty. This act was passed on May 2d, 1885. It was supplemented by an act of April 3d, 1902. By Pamph. L. 1907, p. 402, an explanatory act, it was recited that doubts had arisen as to the true meaning of the words "who shall have lost his life in the performance of duty," in the earlier act, and it was enacted that those words in the act should be interpreted to mean, and be construed to apply to, the case of any officer or man who died or should die, as the direct result of any injury received, or sickness or illness contracted, or incurred, while in the performance of actual duty, or the attempted performance of actual duty.

Newton v. Globe Indemnity Co.

93 N. J. L.

This is the only rational meaning to apply to the same language in the act of 1911, under which this suit was brought; and the legislature's interpretation of its own language should be adopted.

As there was evidence tending to show that the deceased contracted a cold, resulting in pneumonia and death, while in the attempted, if not actual, performance of his duty, the court rightly refused to nonsuit or direct a verdict for defendant. Nor was there any error in the part of the charge excepted to, which was, that if the jury were satisfied that the disease which resulted in Maitland's death was contracted by him while he was in the performance of his duty, then his widow was entitled to recover.

The judgment under review should be affirmed.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 14.

For reversal-None.

MAHLON W. NEWTON. RESPONDENT, V. GLOBE IN

DEMNITY COMPANY, APPELLANT.

Submitted March 24, 1919-Decided June 20, 1919.

B. R. entered into a contract with the freeholders of Atlantic to build a road. It was finished and accepted, subject to B. R.'s obligation to maintain and repair it for one year thereafter, to secure which the freeholders, under the terms of the agreement, retained five per cent. of the contract price, which amounted to $9.830.14. Afterwards the contract and the retained percentage were assigned by B. R. to J. B. R., and by him to M. W. N., the plaintiff. J. B. R., as principal, and the defendant, G. I. C., as surety, entered into a bond to the plaintiff, M. W. N., in the penal sum of $10.000, with condition that if the principal,

93 N. J. L.

Newton v. Globe Indemnity Co.

J. B. R., should repair all defects in the roadway arising from defective workmanship or material, ordinary wear and tear excepted, and should indemnify and save harmless the obligee, M. W. N., from and against all loss which he might be put to by reason of the failure of the principal to cause said repairs to be made, then, &c. Plaintiff, M. W. N., received from the freeholders $8,330.14, who retained the balance of $1,500 out of the retained percentage to make good defects in the roadway, which had not been repaired. There was evidence that the repairs had not been made and that it would cost $1,500 to make them. Held, that in these circumstances the plaintiff, M. W. N., had been "put to loss" in the sum of $1,500; and that, therefore, there had been a breach of the bond, and that plaintiff was entitled to recover.

On appeal from the Supreme Court. Case tried at Cir

cuit.

For the appellant, Lum, Tamblyn & Colyer.

For the respondent, Joseph J. Summerill and Endicott & Endicott.

The opinion of the court was delivered by

WALKER, CHANCELLOR. This was a suit on a bond of indemnity for $10,000, and a verdict passed for plaintiff. Judgment thereon, and defendant appealed.

Bryant Reilly, on January 10th, 1910, entered into a contract with the board of chosen freeholders of the county of Atlantic to build a road. It was finished, and was accepted by the county and state authorities, subject, however, to Reilly's obligation to maintain and repair the road for one year thereafter, to secure which the freeholders of Atlantic, under the terms of the contract, retained five per cent. of the contract price, which amounted to $9,830.14. Afterwards, the contract and retained percentage were assigned by Bryant Reilly to James B. Reilly and by him to the plaintiff, Mahlon W. Newton.

On March 20th, 1914, James B. Reilly, as principal, and the Globe Indemnity Company, defendant, as surety, executed a bond to the plaintiff, Mahlon W. Newton, in the penal sum

Newton v. Globe Indemnity Co.

93 N. J. L.

of $10,000, with condition "that if the aforesaid principal shall repair all defects in said roadway arising from defective workmanship or material, ordinary wear and tear excepted, from the date hereof unto July 31st, 1914, the date upon which the maintenance period of said work expires, and shall indemnify and save harmless the said obligee from and against all loss, cost and expense which the said obligee may be put to by reason of the failure of the principal to cause said repairs to be made during the said term, then this obligation shall be null and void; otherwise to be and remain in full force and effect."

On January 18th, 1916, the plaintiff, Mahlon W. Newton, received from the freeholders of Atlantic $8,330.14, under an agreement which provided that the county should retain the balance of $1,500 out of the $9,830.14, the retained percentage, to make good the defects in the roadway, which had not been repaired.

The plaintiff contended that James B. Reilly, needing money to enable him to perform the contract, got plaintiff to endorse his note for $10,000, and that, to indemnify him from loss on it, the bond was given. Newton, the plaintiff, was obliged to pay and take up the note. The witness Miss Feyl, a clerk in James B. Reilly's office, testified that the bond and assignment were taken to secure the note. And plaintiff testified to the same thing. Objections were made to this testimony on the ground that the bond spoke for itself and its terms could not be varied. This appears to be true, and we think the objections should have been sustained; but, in our opinion, the testimony was harmless. It is perfectly obvious that the bond was given to secure the making of repairs to the road by James B. Reilly, the principal, and to indemnify and save the plaintiff, Newton, harmless from all loss which he might be put to if default should be made in the condition. It was quite immaterial that the principal and obligee had entered into other undertakings for and on account of the matter. The trial judge distinctly charged the jury that the suit was on the bond and not on the note, and that recovery could only be had for a breach of the bond

93 N. J. L.

Newton v. Globe Indemnity Co.

if that were proved. The testimony about the note was irrelevant and incompetent, but harmless. It had no bearing on the gravamen of the complaint, which was as to the breach of the bond. And harmless errors are not ground for reversal.

The question, therefore, is, Was there any evidence tending to prove a breach of the bond, or should the motion to direct a verdict for defendant have been granted?

The condition of the bond was, as seen, that if James B. Reilly should repair all defects in the roadway arising from defective workmanship or material, ordinary wear and tear excepted, from the date thereof, March 20th, 1914, to July 31st, 1914, and indemnify and save harmless the plaintiff, Newton, from and against all loss, &c., which he might "be put to by reason of the failure of the principal to cause the repairs to be made during the term thereof, then," &c. Now, it must be perfectly obvious that if the plaintiff, Newton, were put to loss by the failure of James B. Reilly to make the repairs, then there was a breach of the condition of the bond. In the bond itself the contract between Bryant Reilly and the freeholders, which was assigned to James B. Reilly, was referred to and made a part of that instrument. That contract required Bryant Reilly to maintain and repair the road for one year after its acceptance, admittedly, to July 31st, 1914. This obligation fell upon James B. Reilly, and there was abundant evidence to the effect that neither he nor Bryant Reilly discharged that obligation. It is also apparent that the plaintiff, Newton, was entitled to every dollar of the retained percentage of the contract price if Reilly performed by maintaining and repairing the road, and, if he did not so perform, then Newton was entitled to all, less such an amount as was required to maintain and repair the road, as James B. Reilly should have maintained and repaired it under the contract. And every dollar that Newton failed to receive by reason of this default, was loss to which he was put, to use the words of the bond, "by reason of the failure of the principal to cause said repairs to be made during the said term."