agree for myself and my personal representa- [accord and satisfaction; but the converse of tives to carry this note for you so long as interest thereon shall be paid as and when due, and so long as you shall continue to hold and own approximately a one-third interest in the proposed option on the New York & New Jersey Rapid Transit Company Syndicate property, and the extension or extensions thereof as at present proposed in case such extensions be arranged.

this proposition is not true. Lord Chancellor Selborne, in Scarf v. Jardine, L. R. 7 App. Cas. 351, says, "Novation," a term borrowed from the Roman law, means this, "that, there being a contract in existence some new contract is substituted for it, either between the same or different parties; the consideration mutually being the discharge of the old contract." Morecraft v. Allen, 78 N. J. Law, 729, 75 Atl. 920.

[4] Now in the case, sub judice, the appellant claims, because he had on several occasions told the plaintiff that he was prepared to deliver to him a single note for the various

This letter is dated January 17, 1911. Five days later the plaintiff wrote appellant as follows: "It was always my intention to hold your notes until you had worked out of your financial troubles. This is shown by my conduct in the past, and my intention | separate notes, and received the replies that has in no way altered. I suggest that you substitute a single note for the several notes which you now have. I agree for myself and personal representatives to carry this note for you during the life of the proposed option on the New York & New Jersey Rapid Transit Company Syndicate property, and the extension thereof as at present proposed, in case such an extension be arranged, unless the option be sooner exercised, in which event the first proceeds of your share in the option are to be applied to the payment of the note."

the notes were in a safety deposit box in the city of Paterson, and that he (the plaintiff) would get them for him, that this was tantamount to an execution of the terms of the agreement, and equivalent to an accord and satisfaction or a novation. But, for the reasons already stated, this is not so. The appellant, in fact, never made a tender of any note to the plaintiff. It was the duty of the appellant, if he desired the extension of time, to seek the plaintiff and offer the single note in substitution, and this he never did. The appellant never substituted a single note, [1, 2] To the proposed arrangements, the and, though it appears he offered to do it appellant acceded. It is important in this whenever the plaintiff produced the old connection to note that the agreement is, notes, this constituted no bar to the action. in effect, neither a novation nor an accord For the legal rule is well settled that, if an and satisfaction. It is wholly executory in agreement intended as a novation is concharacter. It clearly contemplates some- ditional, the novation can only take effect thing to be done by the defendant for the by the performance of the condition before In the extinguishment of the old debt, and that the debt is extinct. 29 Cyc. 1134. was to give the plaintiff a single note in present case, in order for the defendant besubstitution of the old note, and this the low to have succeeded in his defense, it was plaintiff never did. It was not an accord incumbent upon him to establish that a new and satisfaction for, though there was proof note was substituted for the old indebtedof an accord, there was no proof of a satis-ness, and that it was accepted by the plainfaction. A defense of accord and satisfac- tiff in extinguishment of the old debt. Havtion will be of no avail in an action at law, ing failed to do this, the defense was propwhere it appears to have been only partly erly overruled, and the verdict properly diexecuted. Oliver v. Phelps, 20 N. J. Law, rected. 180; Line et al. v. Nelson et al., 38 N. J. Law, 358; Stone v. Todd, 49 N. J. Law, 274, 8 Atl. 300; Headley v. Leavitt, 65 N. J. Eq. 748, 55 Atl. 731. To satisfy the requirement of the law, the accord must be executed. A mere executory agreement is not sufficient. Band- (Court of Errors and Appeals of New Jersey.

man v. Finn, 185 N. Y. 508, 78 N. E. 175, 12 L. R. A. (N. S.) 1134, and note.

[3] What has been said regarding the defense of accord and satisfaction is equally applicable to that of novation, which is a species of accord and satisfaction. The principal distinguishing feature between them is that a novation implies the extinguishment of an existing debt or obligation by the parties thereto, and its transition into a new existence between the same or different parties; whereas, an accord and satisfaction relates solely to the extinguishment of the debt or obligation.

Judgment will be affirmed.

DAVIS v. CLARK.

March 16, 1914.)

(85 N. J. L. 696)

BILLS AND NOTES (§ 346*)—BONA FIDE PUR

CHASER.

(3

Under Negotiable Instruments Act Comp. St. 1910, p. 3741), §§ 56, 57, declaring that to constitute notice of an infirmity, the person to whom an instrument is negotiated must have actual knowledge, or knowledge of such facts that his taking the instrument amounts to bad faith, and that a holder in due course takes the instrument free from defenses available against prior holders, a holder for value before maturity of a note procured by the payee's fraud cannot be defeated because there were circumstances sufficient to put him on inquiry, but not to make his taking of the note

fraudulent.

[Ed. Note. For other cases, see Bills and Every novation embraces, necessarily, an Notes, Cent. Dig. § 869; Dec. Dig. § 346.*]

Error to Supreme Court.

April, 1911, which representations he declares Action by William G. Davis against Sam- were false. But, even if this be conceded, uel Clark. There was a judgment for plain- there was no perceptible connection between tiff, and defendant brings error. Affirmed. the appellant's selling out his 250 shares to Jerome T. Congleton and Frank E. Brad-Rotter in April, 1911, and his repurchasing

ner, both of Newark, for plaintiff in error. Lintott, Kahrs & Young and John R. Hardin, all of Newark, for defendant in error.

KALISCH, J. The judgment challenged by the appellant was given on a verdict directed against him for plaintiff in the court below. The action was based on a promissory note for $10,000, under date of December 20, 1911, made by Samuel Clark, the appellant, to the order of William Rotter, and indorsed by the latter to William G. Davis, the respondent, who gave $9,100 value for it. The sole inquiry raised by the appeal is: Were there facts bearing on any question that would defeat the respondent's right to recover? The facts developed on the trial showed that the appellant bought 250 shares of stock, in the People's Talking Machine Company, having a par value of $25,000, for $5,000. Rotter, the payee of the note mentioned, and one Meiselbach, were stockholders in the company. Rotter was an inventor, and Meiselbach a practical manufacturer, and both were relied on by the other stockholders in the company to manage and carry on the business. In the month of April, 1911, at a meeting of stockholders, Rotter stated in the presence of all the stockholders, including the respondent, who was also a stockholder, that he (Rotter) had a position offered him by a rival company at a much larger salary than he was receiving, and that he had accepted it, and therefore was going to leave, whereupon Meiselbach stated that, if Rotter left, he would leave. The stockholders endeavored to induce Rotter to remain, and he then suggested that he would buy their stock, and it was finally agreed to sell him their stock for 40 cents on the dollar. The appellant received $10,000 from Rotter for his 250 shares, claiming that he was induced to sell through the representations made by Rotter and Meiselbach. Later, in December, 1911, Rotter sold back to the appellant 100 shares of the stock for $10,000, for which appellant paid with the note in controversy. On the 18th day of January, 1912, respondent purchased the note of Rotter, giving him therefor $4,000 in cash, capital stock of the People's Talking Machine Company having a par value of $5,000, respondent's note for $900, and $100 were allowed for discounting the note. The $900 note was not paid, and the plaintiff was permitted to recover the amount the note actually cost him, which was $9,100.

He

100 shares of him in December, 1911. The Rotter sold back to him 100 shares of this further claim of the appellant is that, when stock, he then represented that one Whitehead had invested $10,000 in the company, and that he was about to become its president, and that the company was in good shape, which representations he says were untrue. But the appellant manifestly did not rely on the representations made. himself says that the fraud of which he complains is the fraud practiced upon him in April, by which he was induced to sell out his stock; but this, of course, had nothing to do with the repurchase of it eight months later. And it further appears that, about ten days after the respondent acquired the note, the appellant called upon him and made a proposal to pay $7,500 in cash when the note came due and to renew it for $2,500, which proposal the appellant says the respondent agreed to. In the meantime, however, appellant says that Rotter confessed to him the deceit practiced upon appellant in April, 1911, through which he was induced to sell out his stock to Rotter, and because of that deceit, and that only, he told respondent that he would refuse to pay the note.

Even if it were assumed that the note in controversy is tainted with fraud by reason of the representations made by Rotter to the appellant when he sold to him the 100 shares of stock, and for that reason a jury question was raised as between the original parties to the note, that does not militate against respondent being a bona fide holder in due course. There was no testimony at the trial that tended to show that respondent had any knowledge of any of the facts of the transaction in December between appellant and Rotter at the time he purchased the note from Rotter. But, even if it had appeared that there were suspicious circumstances that would put a man on inquiry at the time respondent bought the note, it would not preclude his right to recover. The latest pronouncement of the legal rule governing this topic was made in Rice v. Barrington, 75 N. J. Law, 806, 70 Atl. 169, decided by this court after the enactment of sections 56 and 57 of the Negotiable Instruments Act (3 Comp. St. 1910, p. 3741), dealing with the subject as to what shall constitute notice of infirmity or defect in title and as to the rights of a holder in due course of a negotiable instrument under that act, where Mr. Justice Garrison, speaking for the court (75 The appellant claimed as a defense against N. J. Law, 807, 70 Atl. 170), said: "Bad the payment of the note that he was induc-faith-i, e., fraud; not merely suspicious to sell out his 250 shares to Rotter in con- circumstances-must be brought home to a ce of what Rotter and Meiselbach rep-holder for value whose rights accrued before

a negotiable note upon the ground of fraud | a verdict in favor of the plaintiff was renin its inception or between the parties to it." dered, which was set aside by the Supreme As the defense failed to adduce any testi-Court on rule to show cause, on the ground mony tending to establish that the alleged that the weight of evidence showed that the fraud charged against Rotter was brought home to the respondent, who was a holder for value whose rights accrued before maturity, no jury question was presented, and therefore the court very properly directed a verdict for the plaintiff.

Judgment will be affirmed.

(85 N. J. L. 586)

DICKINSON V. ERIE R. CO. (No. 47.) (Court of Errors and Appeals of New Jersey. March 16, 1914.)

(Syllabus by the Court.)

1. TRIAL (8 168*)-DIRECTION OF VERDICT GROUNDS.

plaintiff was guilty of contributory negligence. Per curiam filed November 21, 1912. The third trial resulted in a direction of a verdict in favor of the defendant, on the ground that the evidence was substantially the same as the testimony on the second trial. This appeal was taken from the judgment entered on that verdict.

In directing a verdict for the defendant on the trial now under review, Adams, J., speaking of the testimony in the case, said: "It seems to me to be substantially the very same testimony as it was before, and I cannot conceive that there would be the slightest probability that the Supreme Court, if it were called on to review this case again, A trial judge is only justified in granting would not find that it was substantially and a nonsuit or directing a verdict upon a court essentially identical with the case on the question arising from the admitted or uncontroverted facts of a case, and the weight of last trial. Taking that view of the case, I conflicting testimony must always be submitted take it to be my duty to grant this motion and to a jury for their consideration and determina-direct a verdict for the defendant." The [Ed. Note.-For other cases, see Trial, Cent. learned trial judge, in directing a verdict for Dig. §§ 341, 376-380; Dec. Dig. § 168.*] the defendant, proceeded upon the assump

tion.

2. TRIAL (§ 168*)-DIRECTION OF VERDICT-tion that the Supreme Court on rule to show GROUNDS.

Because the Supreme Court has granted a new trial where a verdict was rendered against the weight of the evidence, the direction of a verdict at the second trial on the same or similar evidence, where a substantial conflict of testimony is present, will not be justified. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 341, 376-380; Dec. Dig. § 168.*] 3. APPEAL AND ERROR (§ 1006*) — VERDICT EVIDENCE.

cause would have granted a new trial if the verdict had again passed for the plaintiff.

[3] But by the rule laid down in Brown v. Paterson Paper Co., 69 N. J. Law (40 Vroom) 474, 55 Atl. 87, a second concurring verdict, upon the same state of facts, or slightly varying evidence, would cause the court to hesitate before granting a third trial. The circuit judge was not, however, confronted A second concurring verdict upon the same with the proposition of granting a rule to state of facts or slightly varying evidence will show cause why a verdict should not be set cause the court to hesitate before granting aaside and a new trial granted. What he was third trial.

[Ed. Note. For other cases, see Trial, Cent.

Dig. §§ 342, 343; Dec. Dig. § 143.*]

Appeal from Supreme Court.

Action by Joel Dickinson against the Erie Railroad Company. From judgment for defendant on directed verdict, plaintiff appeals. Reversed, and venire de novo awarded.

Herbert Clark Gilson, of Jersey City, for appellant. Cortlandt & Wayne Parker, of Newark, for appellee.

asked to do, and what he did, was to take away from the jury a jury question; and

that was error.

[1] A trial judge is only Justified in granting a nonsuit or directing a verdict upon a court question arising from the admitted or of conflicting testimony should always be uncontroverted facts of a case. The weight

submitted to a jury for their consideration and determination. Fulton v. Grieb Rubber Co., 72 N. J. Law (43 Vroom) 35, 60 Atl. 37.

As was said by this court in Uvalde Asphalt Paving Co. v. Central Union S. Co., 84 N. J. Law, 297, at page 301, 86 Atl. 425, at page 426: "To warrant a nonsuit at the trial or the direction of a verdict, something more than the mere weight of the evidence must be involved. A verdict that is against the WALKER, Ch. The plaintiff sued to re-weight of evidence is sufficiently controlled by cover damages on account of personal inju- the subsequent power of the court over its ries and loss of his automobile while attempt- own verdicts; if concurring verdicts on the ing to avoid a collision with defendant's train at Howells, N. Y., on July 31, 1909. The first trial resulted in a nonsuit, which was reversed by this court. Dickinson v. Erie Railroad Co., 81 N. J. Law, 464, 81 Atl. 104, 37 L. R. A. (N. S.) 150. At the second trial

same evidence will not be permitted to stand, it is because something more is involved."

[2] It has been held in this state that because the Supreme Court has granted a new trial where a verdict was rendered against the weight of the evidence, the direction of a

•For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes

1

verdict at a second trial on the same or simi- | population shall be the basis of classification. lar evidence, where a substantial conflict of If so, no city of proper size should be extestimony was present, would not be justified. cluded from the benefit or burden of the act. Horandt v. Central R. R. Co., 81 N. J. Law By legislating for all towns in the same act, (52 Vroom) 488, 83 Atl. 511. the Legislature has declared that towns of more than 12,000 population are entitled to the benefit and subject to the burden of the act; for there are in the state several towns with a greater population. This amounts to a legislative declaration that a population of 12,000 is not too large to come under this

[4] Conflicting testimony is always for the jury. See Fulton v. Grieb Rubber Co., supra; Spargo v. Central R. Co., 84 N. J. Law, 251, 86 Atl. 385; Nixon v. Nixon, 87 Atl. 454; Napodensky v. West Jersey & S. R. Co., 88 Atl. 1033.

The judgment under review should be re- act. This declaration, however, is inconsistversed, and a venire de novo awarded.

(85 N. J. L. 625)

SAWYER v. TOWN OF KEARNY. (No. 77.)
(Court of Errors and Appeals of New Jersey.
March 16, 1914.)

STATUTES (893*)-MUNICIPAL CORPORATIONS
-CLASSIFICATION-VALIDITY.

2 Comp. St. 1910, p. 2465, § 531, regulating the pay of patrolmen in cities other than first and second class, and in all towns and townships, is invalid, as a classification of municipalities not only according to their character as cities, towns, and townships, but also according to population, and thereby giving to towns the benefits and burdens of the act, though they have more than 12,000 population, while cities of the second class of the same population are excluded.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 102; Dec. Dig. § 93.*]

Appeal from Circuit Court, Hudson County. Action by Jeremiah Sawyer against the Town of Kearny. From a judgment for plaintiff, defendant appeals. Reversed, and record remitted.

Herbert Boggs and Edward Kenny, both of Newark, for appellant. William D. Edwards, of Jersey City, for respondent.

ent with the other provision that excludes second-class cities, many of which are substantially of the same population as the larger towns. In short the Legislature, having adopted population as the basis of the classification, immediately departed therefrom. The double basis of classification is incongruous, and not founded in reason.

The judgment must be reversed, and the record remitted. Unless the plaintiff's claim has some other basis than the statute, the necessary result will be that the circuit court must render judgment for the defendant.

(82 N. J. Eq. 625) FROST v. BLACKWELL et al. (Court of Errors and Appeals of New Jersey. March 16, 1914.)

(Syllabus by the Court.) WILLS (§ 714*)—CONSTRUCTION-DIRECTION TO PAY DEBT.

The language of the will in question in this cause interpreted to indicate the intended payment of a debt or obligation, and not the gift of a legacy.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 1698-1703; Dec. Dig. § 714.*]

Appeal from Court of Chancery.

Bill by Francis W. Frost, substituted trustee and administrator with the will annexed of Sophia H. B. Blackwell, deceased, against William T. Blackwell and others, for construction of will and codicils, and for directions in relation to performance of trust. From decree of Court of Chancery (88 Atl. 176), Alice B. Frost and others appeal. Reversed.

The bill is filed by the substituted trustee and administrator with the will annexed of Sophia H. B. Blackwell, deceased, for a construction of her will and codicils, and for directions in relation to the performance of the trust.

SWAYZE, J. The learned trial judge necessarily and properly followed the ruling of the Supreme Court in Longstreet v. Asbury Park, 90 Atl. 669, and gave judgment for the plaintiff. This appeal, in effect, brings before us the propriety of that ruling. The only point we think it necessary to consider is the constitutionality of the act of 1909, on which the plaintiff's claim rests. C. S. 2465, pl. 531. The act applies to all cities other than first and second class cities, and to all towns and townships. It is therefore not a general act applicable to all municipalities having a police force, and the question is whether the municipalities selected form a proper class for legislation of this kind. It So much of the will as is material to the is well settled that municipalities may be controversy is as follows: classified, according to their common-law character, as cities, towns, and townships. is equally well settled that they may in a case like this be classified according to population. The question now presented is whether the two methods may be combined. In this act the Legislature has separated cities according to population, and has thereby declared that

It

"Sixth. I also give and bequeath to my nephews, Birney Blackwell and Frank E. Blackwell, Jr., all the surplus, which may remain from the sale of property deeded by me to Helen B. Howard or Rodman after the payment of the debt due by me to my husband, William T. Blackwell; which said property is situated in Bay City, Michigan,