93 N. J. L.

Lindabury v. Township of Clinton.

whom two hundred and thirty-six voted in favor of the bonds for streets and two hundred and thirty-seven in favor of the sewers. Notices of the election upon the issue of bonds for streets and the construction of sewers were given, except that they failed to designate the place in the borough where the election was to be held. The court pointed out that as the election was held on the day fixed by law for the annual borough election (the second Tuesday in March) the voters must be presumed to know that the election was to be held on that date. In discussing the point that the vote for the bonds and the sewers was on a separate ballot instead of on the official ballot, the court said (on p. 91):

"The will of the voters, if there has been a full and fair expression of opinion, cannot be thwarted by the error of those who attended to printing the ballots. In this case a clear majority of all who voted for borough officers voted also in favor of the bonds and the sewers. That fact demonstrates that there was a full and fair expression of opinion in favor of both propositions."

In Winters v. Warmolts, 70 N. J. L. 615, the city clerk, in publishing the notice of an annual election for aldermen in the city of Paterson, failed to make any mention at all of one of the offices (that is, for the so-called "short term") that was to be filled. Notwithstanding this failure to advertise, as required by section 7 of the General Election law, the court sustained the election on the ground that it appeared from the pleadings that there was a "full and fair election," saying that "its results, therefore, cannot be ignored by reason of the failure of the clerk to give the statutory notice" (p. 618).

In Brown v. Street Lighting District, 70 N. J. L. 762, the township clerk failed to put up notices of the election, the time, place and purpose of which were fired by the statute under which the vote was to be taken. The statute required that notice be set up at least ten days before the election, but the clerk put up the notices only three days before the election. Two hundred and ten votes were cast, of which one hundred and fifty were in favor of an appropriation for a certain amount and sixty in favor of a certain smaller amount.

Lindabury v. Township of Clinton.

93 N. J. L.

The argument against the validity of the election was based solely on the failure to set up the notice ten days in advance. It appeared that there was a very full vote at the election. The Court of Errors and Appeals affirmed the judgment of the Supreme Court sustaining the election. Speaking for the court, Mr. Justice Pitney said (at p. 765):

"The rule to be derived from a review of the authorities is that where the time, place and purpose of an election are fixed by public law, all voters must take notice thereof, and such an election, if held, is not invalid because no special notice was given nor proclamation made; certainly not if it appear that there has been a fair expression of the will of the voters. Special notice, where prescribed by statute, is intended for the purpose of greater publicity; but the right to hold the election comes from the statute and not from the official notice. * * The question here is whether, in face of the fact that the will of the people has been fairly expressed, the election must be held void by reason of the mere failure to give in due season the statutory notice. In our view, in this as in all cases of stated public elections, the requirement of notice is directory, intended to insure that knowledge of the approaching event shall be brought home to all the voters, but not essential to the validity of the election."

*

So, in this present case, even if the General Election law requires notice of the local option referendum at a general election to be published, the failure to do so does not invalidate the result of the election when it appears that there has been a full and fair expression of the popular will, and I think that fact appears from the number of voters who voted upon the question presented. As pointed out in the Brown case, the purpose of a published notice is to insure that knowledge of the event be brought home to the voters. In the present case, not only was such knowledge brought home to them (as shown by the number of votes that were cast on the question), but it also appears that the sample ballots mailed to all the voters contained the question, and hence all voters. who took the trouble to examine their sample ballots had

actual knowledge of the fact that there was to be such a referendum at the general election.

The principle of the Brown case has been followed in Attorney-General v. Belleville, 81 N. J. L. 200 (where an election was sustained in the face of serious error in the form of the ballot on the question relating to the incorporation of the town, when it appeared that there was a full and fair expression of the voters), and in d'Espard v. Essex Fells, 84 Id. 181, where the ballot which called for an expression of the voters as to the issue of bonds for certain public purposes was a separate ballot, notwithstanding that the General Election law required that such question be printed at the foot of the general election ballot; and where the notice required. by the statute for the holding of a special election on the question was not given, and the statutory notice required for the holding of a general election was given.

Secondly, it is contended that the result is controlled by the fact that only a plurality of the votes cast at the election. was in favor of prohibition. But that is not so. Section 16 of the act expressly provides that the result of any election thereunder shall be determined by a majority "of the votes cast on the question submitted."

I have thus dealt with the only questions argued. I have not considered and do not decide any other question. The election under review will be affirmed.

JOHN A. PHILBRICK, RESPONDENT, v. FLOYD W. MUNDY, APPELLANT.

Argued November 7, 1918-Decided March 24, 1919.

1. Interest is not allowed on unliquidated damages.

2. Where on appeal from the Circuit Court a judgment is wrong in respect to the inclusion of interest, and is right in all other respects, the judgment will be affirmed if the plaintiff will waive the interest; otherwise, it will be reversed and a new trial awarded as to damages alone.

Philbrick v. Mundy.,

93 N. J. L.

On appeal from the Essex County Circuit Court.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the appellant, Wolber & Blake.

For the respondent, Press & Press.

The opinion of the court was delivered by

TRENCHARD, J. This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff in an action to recover damages for injury to the plaintiff's automobile sustained in a collision with the defendant's automobile.

The only ground of appeal argued is that "the court erred in charging the jury to allow interest on an unliquidated claim for damages."

We are of the opinion that the point is well taken.

At the trial it appeared that the reasonable value of the repairs to the automobile necessitated by the accident was $879.19. The learned trial judge instructed the jury that if they found for the plaintiff it should be for that amount with interest from the date of the accident. Accordingly, the jury added interest on $879.19 and rendered a verdict for $1,002.43.

We think that was wrong. Interest is not allowed on unliquidated damages. Speer v. Van Orden, 3 N. J. L. 232, *653. The reason is that the person liable does not know what sum he owes and therefore cannot be in default for not paying. That principle is applicable to an action of tort, such as the present, where the damages are an uncertain quantity, depending on no fixed standard, and cannot be made certain except by verdict.

The judgment is therefore wrong in respect to the inclusion of interest, and is right in all other respects.

93 N. J. L.

Smith, Kline & French Co. v. Freeman.

If the plaintiff will waive the interest, the judgment will be affirmed, without costs on this appeal; otherwise, it will be reversed and a new trial awarded as to damages alone. Supreme Court rules 132 and 147.

SMITH, KLINE & FRENCH COMPANY, PLAINTIFF, V. GEORGE T. FREEMAN, DEFENDANT.

Submitted December 5, 1918-Decided March 3, 1919.

1. When a promissory note complete and regular upon its face was taken by the plaintiff, before maturity, in good faith and for value, and without notice of any infirmity in the note or defect in the title of the person negotiating it, the plaintiff is a holder in due course.

2. When a promissory note has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.

3. A verdict which is contrary to the law of the case as declared in the charge of the court will be set aside on a rule to show

cause.

On plaintiff's rule to show cause why verdict should not be set aside.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the rule, Nathaniel C. Toms.

Contra, King & Vogt.

The opinion of the court was delivered by

TRENCHARD, J. The plaintiff sued upon a promissory note made by the defendant to the Guarantee Food Company, and by the latter transferred by endorsement to the plaintiff.