31, 1909, had ordered the defendants to make in connection with the picking and marketing of a cranberry crop that was the subject of litigation. This order of August 31, 1909, which was made upon petition, affidavits, and the argument of counsel, "ordered that said defendant J. Clarence Hinchman be required to keep a strict account of the berries picked from the bog mentioned and described in the bill of complaint, and of all expenses in connection with the picking, storing, cleaning, packing, shipping and marketing said berries, and submit or file said account as the court may hereafter direct." garde v. Union Bag & Paper Co., 90 App. [ with its clerk a certain account that the Div. 577, 86 N. Y. Supp. 72 (1904), affirmed said court, by its previous order of August 181 N. Y. 519, 73 N. E. 1119; Braunberg v. Solomon, 102 App. Div. 330, 92 N. Y. Supp. 506 (decided in 1905); Mahoney v. Bay State Pink Granite Co., 184 Mass. 287, 68 N. E. 234 (1903); Geeoneck v. Dean Steam Pump Co., 165 Mass. 202, 43 N. E. 85; Brady v. Norcross, 174 Mass. 442, 54 N. E. 874; Reynolds v. Barnard, 168 Mass. 226, 46 N. E. 703. In this case it was expressly held that it was a question for the jury whether the principal duty of the foreman in charge of the work was not that of superintendence, "notwithstanding the fact that he was engaged in laying slate on the roof when the accident happened, and although he testified as a witness for the defendant that he worked with his hands nine-tenths of the time." Eaves v. Atlantic Novelty Mfg. Co., 176 Mass. 369, 57 N. E. 669; Knight v. Overman Wheel Co., 174 Mass. 455, 54 N. E. 890. From this order, no appeal having been taken, the matter therein expressly reserved for a future direction, viz., whether the account should be submitted, or whether it should be filed, was subsequently disposed of by the order now before us, which directs that the account be filed. From this order, the defendants have appealed. We think that it was within the province of the jury in the case in hand to find, under the statute, that Whitehead was superintendent at the time of the accident, and that his principal duty was that of superintendence; that his act of sending down the loaded car, which caused the deceased to be thrown from the empty car while he was stepping from it, was a negligent act imputable to the defendant company. The judgment below, which was for the question reserved in the order of August 31, plaintiff, should be affirmed. (79 N. J. E. 596) BRADDOCK v. HINCHMAN et al. (Syllabus by the Court.) Assuming, as we must, that the order of August 31, 1909, from which no appeal has been taken, was properly made, the appellants have not even remotely suggested how they are injured by an order that the account, the propriety of which is not challenged, be filed with the clerk in chancery, rather than "submitted," which was the 1909, and the only matter dealt with in the order brought here by this appeal. The appeal is totally devoid of merits, as also is the contention that the order should be reversed because of a change in the entitling of the cause at an earlier stage of the litigation in the court below. The order is affirmed, with costs. (82 N. J. L. 645) MASON v. HAURAND. March 4, 1912.) Where a decretal order that disposes of the merits of a question expressly reserves for further consideration and subsequent decision (Court of Errors and Appeals of New Jersey. a single point of practice which is disposed of later by a separate order, an appeal from such last-mentioned order does not bring under review the propriety of the main order from which no appeal was taken. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3478, 3480, 3481, 3484, 3530-3540; Dec. Dig. § 874.*] Appeal from Court of Chancery. Rachael E. Hinchman and others. From an French & Richards, for appellants. Gaskill & Gaskill, for respondent. GARRISON, J. The defendants, in the court of chancery, have appealed from an order of that court, directing them to file (Syllabus by the Court.) 1. LANDLORD AND TENANT (§ 216*)-HOLDING OVER-ACTION. value of demised premises for holding over aftThe statutory action for double the annual er determination of the term and notice to quit from the landlord or owner (3 C. S. p. 3076, § 27) is a penal action, and a plaintiff therein must bring his case strictly within the terms of the statute. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 861-865; Dec. Dig. § 216.*] 2. LANDLORD AND TENANT (§ 216*)—NOTICE TO QUIT-SUFFICIENCY. A notice demanding possession of the premises, or, in the event of its being found that claimant is not entitled to the possession of the premises as set forth, demanding possession of a specified undivided interest in said premises, being in the alternative, is not suf ficient to support an action under section 27 of | tice that we demand of you possession of the the Landlord and Tenant Act. premises, No. 115 East Front street, in the [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 861-865; Dec. Dig. city of Plainfield, and state of New Jersey, § 216.*] 3. FORMER DECISION APpproved. Mason v. Haurand, 79 N. J. Law, 375, 75 Atl. 452, in this respect approved. Pitney, Ch., and Kalisch and Vroom, JJ., dissenting. Error to Supreme Court. Action by Josephine A. Mason against Henry Haurand. Judgment of nonsuit for fendant, and plaintiff brings error. Af firmed. See, also, 79 N. J. Law, 375, 75 Atl. 452. Melosh & Morten, for plaintiff in error. Francis J. Blatz, for defendant in error. PARKER, J. This writ of error is in effect, though not in form, a review of the decision of the Supreme Court in Mason v. Haurand, 79 N. J. Law, 375, 75 Atl. 452, which, although decided on rule to show cause, dealt with the very question of law now presented, viz., whether there was error in nonsuiting the plaintiff. The Supreme Court held that the nonsuit was proper, and its decision, being upon a motion for new trial, was not reviewable. But the plaintiff began a new action, and at the trial submitted her case by consent upon the printed book of testimony and other evidence produced at the original trial, and some additional testimony not affecting the main question; and the trial judge very properly directing a nonsuit in view of the Supreme Court decision, the matter comes before us on a writ of error from this ruling. or so much thereof as is now occupied by Carrie L. Schorb." seven. The controversy between these parties has been so thoroughly threshed out already that a further repetition of the facts seems hardly called for. Those relating to the creation of the original tenancy of the defendant and the subsequent devolution of the title to the reversion are fully stated in Schorb v. Haurand, 76 N. J. Law, 768, 71 Atl. 242, and Haurand v. Schorb, 77 N. J. Law, 365, 72 Atl. 107. Haurand's term expired in 1902; but he held over paying rent to John M. Schorb, the life tenant, at whose death on December 31, 1906, the tenancy, presumably one from year to year, terminated by the extinction of the life estate. Schorb v. Haurand, 76 N. J. Law, 768, 71 Atl. 242. Carrie L. Schorb, Minnie Schorb, and Josephine Mason, the present plaintiff in error, then succeeded to the reversion as tenants in common for life, under the will of the original lessor. Minnie Schorb does not appear in any of the litigation thus far before the Supreme Court or this court, though her interest under the will is undisputed. Carrie Schorb and Josephine Mason about June 4, 1907, caused to be served on Haurand the notice dealt with in two of the former decisions but not heretofore given in full. It is as follows: "To Henry Haurand: Take noFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes [1] Upon this notice they based a suit of unlawful detainer in the district court, claiming a two-thirds interest, and recovered judgment therein which was set aside in certiorari on the ground that the notice was in the alternative and would not support a demand for two-thirds until it had been adjudicated that claimants were not entitled to the whole interest; and on the further ground that the judgment was broader than the complaint. 77 N. J. Law, 365, 72 Atl. 107. Mrs. Carrie Schorb also sued in ejectment for her undivided one-third and recovered a judg ment which was affirmed in this court (Schorb v. Haurand, 76 N. J. Law, 768, 71 Atl. 242), and which was put in evidence in the present case. Mrs. Mason, defeated in the unlawful detainer proceedings, then brought the suit in which the opinion in 79 N. J. Law, 375, 75 Atl. 452, was delivered, and of which the present suit is a duplicate. There are four counts in the declaration. The first two are for double rent under section 27 of the Landlord and Tenant Act for holding over after termination of the term this, a suit by one of these two claiming and notice demanding possession. The third double the annual rental value of the whole is for use and occupation. The fourth is on property. It has been held in a suit under an account stated. As noted in the Supreme 11 Geo. II, c. 19, § 18, which is now section Court opinion, no pretense of a claim is made 28 of our Landlord and Tenant Act, prescribunder the fourth count. Under the counting the penalty of double rental value for for use and occupation this court concurs in holding over after the tenant himself gives what was said by the Supreme Court (79 N. notice, that the notice must be direct and J. Law, 377, 378, 75 Atl. 452) that the posi-positive and should not depend on a contintion taken by plaintiff in repudiating the gency. Farrance v. Elkington, 2 Camp. 501. relation of landlord and tenant by the notice A fortiori should such a rule apply when necessarily negatived any claim for use and the notice is given by the landlord or reveroccupation, which must be predicated on that sioner. Under such a notice as the present relation. In fact, that part of the former one, if held adequate, the tenant by surren decision is not now questioned. The sole dering all might surrender more than he was point now made is that the Supreme Court legally bound to do, and by surrendering erred in holding that the notice was insuffi- only two-thirds might subject himself to cient to support an action under the statute. penalty of double value notwithstanding his To support this, plaintiff in error now at- supposed compliance. We concur therefore tacks a passage in the opinion in 79 N. J. in the view of the Supreme Court in the Law, 377, 75 Atl. 452, which intimates that former case that the notice was insufficient the demandants in the notice were not en- to support the action. titled to possession of the whole premises The declaration seems also to be faulty but only of two-thirds, as incorrect, and urg-in claiming double value of the whole ines that in ejectment they would be entitled stead of double value of plaintiff's moiety. as against a stranger to recover the entire The rule as laid down in the cyclopedias and possession. This may be so under section text-books seems to be that, unless there has 24 of the Ejectment Act (2 C. S. p. 2058; been a joint demise, tenants in common Bouvier v. Baltimore & N. Y. Railway Co., cannot sue jointly; but each may and ap67 N. J. Law, 281, 296, 51 Atl. 781, 60 L. R. A.parently should bring a separate action for 750), although apart from this the rule seems to vary in different jurisdictions (10 Enc. Law [2d Ed.] 512; 15 Cyc. 180, 181). But a determination of this point is not essential to a decision of this case, for we may assume that plaintiff could have recovered in ejectment possession of the whole premises as against defendant-a rather violent assumption, in view of the judgment for possession of one-third in favor of Carrie Schorb which plaintiff put in evidence. A recovery in ejectment, however, is a very different thing from a suit for double the rental value of the premises, which is an action resting on a penal statute. 18 Enc. Law (2d Ed.) 409; 24 Cyc. 1193; Wood, L. & T. § 622. Its penal character is indicated not merely by the recovery of double the rental value, but by the provisions that the defendant shall be obliged to give special bail, and that he shall have no relief in equity. Hence the plaintiff's case must be clearly within its terms. [2] The ordinary notice to quit is sufficient to support an action for unlawful detainer (Townley v. Rutan, 21 N. J. Law, 674), and the statute of unlawful detainer is almost identical in its language with that now under consideration (C. S. 2599, § 5), so that such a notice would seem sufficient to support this action also. But we have here in combination a notice by two parties ascertained by the evidence to be owners of the reversion in only two undivided thirds, claiming the whole or two-thirds of the premises as the rights of the claimants may be determined in the future, and, based on double the value of his moiety. 24 Cyc. 1195, note 69; 18 Enc. Law (2d Ed.) 410, note 11; Wood, Landlord & Tenant, § 527. Granted the sufficiency of the notice, Mrs. Mason properly brought her separate action; but improperly laid claim to double the whole yearly value. It may be that the court might have controlled this in the trial; but on the face of the pleadings she as one plaintiff laid claim to all that she and another had jointly claimed in the notice. Whether this would justify a nonsuit need not be considered, for the nonsuit was properly rested on the insufficiency of the notice. The judgment will be affirmed. PITNEY, Ch., and KALISCH and VROOM, JJ., dissenting. (82 N. J. L. 654) AMERICAN SILK DYEING & FINISHING CO. v. FULLER'S EXPRESS CO. (Court of Errors and Appeals of New Jersey. March 4, 1912.) (Syllabus by the Court.) 1. CARRIERS (§ 158*)-CARRIAGE OF GOODSLIMITATION OF LIABILITY-VALIDITY. contract for exemption from liability for losses While a common carrier cannot lawfully arising from its negligence, it may stipulate with the shipper as to the value of the property, and contract that its liability shall be limited to the amount so stipulated. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-7032, 708-710, 718, 7182; Dec. Dig. § 158.*] 2. CARRIERS (§ 155*)-CARRIAGE OF GOODS-accept, as the agreed value of the goods SHIPPING RECEIPT. lost, $50. Where a shipping receipt that contains such a limitation of the carrier's liability is prepared and tendered by the shipper and accepted by the carrier, the shipper is bound thereby. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 677, 679, 682-685, 691-696; Dec. Dig. 155.*] Error to Supreme Court. Affirmed. Arthur W. Clem Griggs & Hard [1] It is settled in this state that, while a common carrier cannot lawfully contract for exemption from liability for losses arising from its negligence, it may stipulate with the shipper as to the value of the property intrusted to it, and may contract that its liability shall be limited to such stipulated amount. Atkinson v. N. Y. Transfer Co., 76 N. J. Law, 608, 71 Atl. 278, following in this respect the Supreme Court of the United States, in which it was said: "It is just to hold the shipper to his agreement, fairly Action by the American Silk Dyeing & Finishing Company against the Fuller's Express Company. Judgment for defendant, and plaintiff brings error. D. Frederick Burnett and made, as to value, even where the loss or ent, for plaintiff in error. injury has occurred through the negligence ing, for defendant in error. of the carrier. The effect of the agreement BERGEN, J. The defendant corporation is to cheapen freight and secure the carwas, at the time of the happening of the riage if there be no loss; and the effect of events upon which plaintiff bases its action, disregarding the agreement, after loss, is to engaged in the business of transporting mer-expose the carrier to a greater risk than chandise for hire. Its method of business the party intended he should assume." Hart was to receive goods in its wagons in Pater- v. Pennsylvania R. R. Co., 112 U. S. 340, 5 son and deliver them to a railroad company in that city, consigned to defendant in Jersey City, at which point they were taken by defendant and delivered by its wagons in New York City, either to the original consignee, or to another common carrier, if the ultimate destination of the goods required it, limiting its charges to Jersey City or to the point of delivery by its wagons. In the present case, it accepted from the plain-particular waybill or receipt and tendered it tiff "one (1) case of silk, 692, marked 'Marshall Field & Co., Chicago, Ill.,'" and delivered it to the Erie Railroad Company to be carried to Jersey City. It was placed by that company in a car, duly sealed, which was broken, and the goods stolen at some point between Paterson and Jersey City, and for this loss the plaintiff brings its action to recover the full value of the silk. Sup. Ct. 155, 28 L. Ed. 717. And such is the great weight of authority. 5 Am. & Eng. Ency. 328; 6 Cyc. 402. It remains therefore only to be considered whether, in this case, any such contract was made. [2] The facts bearing on this point are that the plaintiff had in its possession a book of receipts or waybills commonly used by the defendant, and that it prepared this for signature to the defendant, by whom it was signed. Under similar circumstances, this court, in Perrin v. U. S. Express Co., 78 N. J. Law, 515, 74 Atl. 462, 28 L. R. A. (N. S.) 645, said: "The plaintiffs had knowledge of the entire contents of the receipt; for they had, by their agents in charge of shipping the goods, prepared it and tendered it to the defendant, contrary to the general course The trial court, holding that by the con- of such transactions, where customarily the tract of shipment the plaintiff was limited in receipt is filled out by the carrier and tenits right of recovery to $50, so instructed dered to the shipper. Although it was writthe jury, and this direction is the basis of ten upon blanks furnished by the carrier, plaintiff's writ of error. It is admitted by yet these blanks had been in the possession a stipulation, signed by both parties, that of the shippers, and had been uniformly used the reasonable value of the goods lost is and filled out by them in their usual course $1,839.75; that the defendant is an express of shipping goods for more than a year precompany, organized under the laws of the vious to the transaction in question, and state of New Jersey, with its principal office were tendered to them by the defendant, and in the city of Paterson, and is a general so had been adopted by the plaintiffs as emforwarder of freight, packages, money, and bodying their own contract. * Here, valuables; that the receipt given by defend- then, we have essentially a case of the shipant to plaintiff contained, among others, the per limiting the liability of a carrier, not following words "and it is hereby expressly the usual one where the carrier has sought agreed, and is a part of the consideration to do so." Applying this rule to this case, of this contract, that the Fuller's Express there can be no doubt that this plaintiff tenare not to be liable for any loss or damage dered such a contract with full knowledge except as forwarder only, nor for any loss of its contents; and that it was accepted. or damage of any box, package or thing for It thus appears that this court has already over $50, unless the just and true value decided that a carrier and shipper may lawthereof is herein stated." As no value was fully contract as to a stipulated amount of stated, the contract, if legal, is an agree- liability; and that the shipper will be chargment, entered into by both parties, that in ed with notice of the contents of the concase of loss the one will pay and the other tract, if he himself prepares it and tenders For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes it to the carrier. Such being the status of the present case, the instructions given by the trial judge were not erroneous, and the judgment below should be affirmed. by the express written declaration of the legatee. It is most important to bear in mind this rule as to the extent to which the evidence must go, unless we are to open the door for an invasion of the provisions which the Legislature has adopted by the statute of wills and the statute of frauds. [2] Is the proof then clear and satisfactory? The evi The conclusion which we have reached renders it unnecessary to consider whether or not this shipment was interstate commerce; for, the defendant having been held liable as the initial carrier, the only ques-dence is summarized in the opinion of the tion presented is the extent of its liability. The judgment below should be affirmed. (79 N. J. E. 599) AUMACK et al. v. JACKSON et al. (Court of Errors and Appeals of New Jersey. March 4, 1912.) (Syllabus by the Court.) 1. TRUSTS (8_44*)-EXPRESS TRUSTS-SUFFICIENCY OF EVIDENCE. In order to establish a parol trust against a legatee, which equity will enforce on account of the legatee's fraud, the evidence must be clear and satisfactory. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*] 2. TRUSTS (§ 44*)-EXPRESS TRUSTS-SUFFICIENCY OF EVIDENCE. learned Vice Chancellor and we need not repeat it. Much of his opinion, and much of the brief of the respondents, is taken up with a discussion of the conduct of the defendant W. Scott Jackson in procuring the execution of a will by Louise C. Aumack, the alleged fraud doer. This evidence is irrelevant. If, as the Vice Chancellor thought, Mr. Jackson procured this will from his sister by the exercise of undue influence, the only persons wronged by his conduct were the next of kin of Louise C. Aumack. The complainants were not thereby injured, since, if she had executed no will, but had died intestate, they would have been excluded from the enjoyment of the property as effectually as they are by her will. If the theory of the complainants is correct, her duty was to execute a will contemporaneously with that of her husband, or, at any rate, immediately after his death, and her failure to do so for more than two years was a fraud with which Jackson was not connected. The only difference between the case that would have been preoth-sented, if she had executed no will, and the present case, is that in that event her next of kin would have been defendants and not her executor and legatees. The case must therefore be decided without regard to any opinion that may be entertained as to the validity of the will of Louise C. Aumack. It turns entirely upon the question whether she induced her husband to leave his property to her upon her promise to devise and bequeath it to his next of kin, and upon her The evidence in this case falls short of that standard. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*] Kalisch, Bogert, Vredenburgh, and White, JJ., dissenting. Appeal from Court of Chancery. Bill in equity by Luella Aumack and ers against W. Scott Jackson, executor, and others. From a decree for plaintiffs (78 N. J. Eq. 189, 78 Atl. 749), defendants appeal. Reversed and remanded, with directions to dismiss bill. W. H. Corbin and Foster M. Voorhees (I. W. Carmichael, on the brief), for appellants. Edmund Wilson, Atty. Gen., and Aaron E. Johnston, for appellees. SWAYZE, J. The object of this bill is to failure to perform that promise. She was enforce a parol trust. not present when her husband executed his will. He told the scrivener at the time that he had never made a will because he did not know how to leave his property, and that he guessed he would leave it all to his wife, and she could do what she pleased with it; that she helped to earn it. This statement of the intent of the testator, contemporaneous with the actual execution of his will and made in the absence of his wife, is corroborated by the testimony of neighbors and acquaintances with whom he talked, and the statement that his wife helped to earn the property is corroborated by the facts. To meet this, the complainants produced evidence of statements by Selah Aumack indicating affection for some of his relatives, particularly nieces who lived near him, and statements by Louise C. Aumack after his death. His statements however, are of the general character that might be expected, and did not indicate [3] The theory of the complainants is that Louise C. Aumack, wife of Selah S. Aumack, induced her husband to devise and bequeath all his property to her upon her promise to distribute it, after her death, among his next of kin, the complainants in the cause. The law is settled by the decision of this court in Williams v. Vreeland, 32 N. J. Eq. 734. Equity will enforce a parol promise made by a legatee to a testator to hold the legacy for the benefit of a third person where the conduct of the legatee amounts to a fraud. This case therefore involves a decision upon the facts only. [1] The rule of evidence was thus stated by Mr. Justice Van Syckel: "Courts of equity act in these cases with the utmost caution, and they will not interfere, unless the promise and the intended fraud on the beneficiary are established by clear and satisfactory proof." In that case it was proved |