SOME REMINISCENCES, MOSTLY LEGAL.

BY HON. FREDERIC ADAMS, LOS ANGELES, CALIFORNIA.

V. Some New Jersey Courts and Lawyers

In the early autumn of 1862, nearly sixty years ago, I became a law student in the office of Amzi Dodd, in Newark. Mr. Dodd was then at the best of his mental and physical strength. In his office I came to know, admire and revere him, and there was begun a cordial friendship between us which continued unbroken until he passed away in extreme old age. I think that there was not in New Jersey a sounder legal head than his, nor a better balanced and more sagacious legal judgment. Nor was this all. He was profoundly ethical, not obtrusively but sensitively. There was a voice within to which he always listened, and he rested firmly on the fundamental morals which are part of the religion of every good man and underlie the Law itself. Nor was this all, for to the innermost recesses of his nature he was devoutly, rationally and serenely Christian.

Mr. Dodd was a Princeton graduate and a contemporary of three remarkable Rutgers men, Cortlandt Parker, Frederick T. Frelinghuysen and Joseph P. Bradley, any one of whom would have conferred distinction on any Bar in the country. Mr. Dodd, though a good and persuasive speaker, had not the oratorical charm of Mr. Frelinghuysen, nor the forensic power of Mr. Parker. He and Mr. Bradley had a good deal in common. Both were scholarly, excellent mathematicians, and had the judicial stamp.

In my first year with Mr. Dodd I had an interesting experience. His cousin, Chief Justice Edward W. Whelpley, came to Newark to hold the Essex Circuit, pursuant, I suppose, to some arrangement with Judge Daniel Haines. He was in the office almost every day, and I lost no opportunity to attend Court and hear him try cases. He was an impressive figure, a big man with a heavy voice and a commanding manner. I have sometimes wondered since whether he was really as powerful a Judge as he then seemed to me to be, or whether perhaps his dominating personality threw a kind of spell over me. I remember that his charge would often efface the impressions made by the arguments of counsel. He seemed to be in exuberant health and spirits, and to have before him the prospect of many years of usefulness and distinction. He died on February 22, 1864, and was succeeded by Mercer Beasley, who held office for thirty-three years, and wrote his name high on the scroll of New Jersey worthies. I wonder how many of the Essex Bar now remember seeing Chief Justice Whelpley at the Essex Circuit. He held the Union Circuit also, and, I have heard, used to get his dinner in New York on the ground that there was nothing fit to eat in Union county. He was probably unfortunate in his choice of a restaurant, or perhaps his requirements were unusual, for he is said to have spoken unfavorably of our national bird, the turkey, because a turkey is “too much for one and not enough for two.”

Judge Haines left the Bench at the expiration of his term on November 15, 1866, and was succeeded by David A. Depue, who held office as Judge and Chief Justice and was a strong pillar of society, until November 16, 1901.

A Persian proverb says that a Stone fit for the wall is never left in the road, and so, as it was according to the evident fitness of things that Mr. Dodd should become a Judge, that event came to pass when Chancellor Zabriskie, in 1871, appointed him the first Vice-Chancellor. In 1875 he resigned his office, and in 1881 was reappointed by Chancellor Runyon. He became also a specially appointed Judge of the Court of Errors and Appeals, thus strengthening its equity side. In a Court many of whose most important issues are in equity, and one of whose members is the Chancellor, who is precluded from sitting in equity cases, it is always well that some of the Judges should have, or have had, the valuable experience of sitting alone in equity, and dealing at first hand with the rules of equity practice and procedure. This has been the case with Justice Bergen and Mr. Dodd. No other instances occur to me.

The highwater mark of Vice Chancellor Dodd’s judicial duty was reached in the memorable case of Pennsylvania R. R. Co. v. National Railway Co., 23 Equity 441, decided at the February term, 1873. This was before the General Railroad Law, and there was a strong movement, backed by much public opinion, and attended by some public excitement and high feeling, to break the monopoly of the Pennsylvania Railroad Company by uniting interests and connecting existing roads, so as to secure an independent through line between New York and Philadelphia. The purpose was meritorious, for the State needed another through line. The case which Vice-Chancellor Dodd decided was in form an application to enjoin the National Railway Company from proceeding with the construction of its road in New Jersey with intent to use it as part of a through line from New York to Philadelphia. The argument which, with the reading of proofs, took two weeks, was upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill. Attorney-General Stockton, Mr. Theodore Cuyler and others were counsel for the complainant, and Mr. Cortlandt Parker and others represented the defendants. I went to Trenton to hear the opinion. The reading of it took about an hour. The gist of the opinion, which was for the complainant, was this,—not that several links might not form a chain, but that the defendants’ so-called links formed no chain because the legislative acts which created them indicated no intent that they should connect. The opinion shows Vice-Chancellor Dodd’s strong judicial qualities; admirable language and style, clear statement, controversial force, persuasive reasoning and exposition, all, in their combination, leading up to a high level of jurisprudence. I know of nothing in the New Jersey books more skillful or nobly ethical than portions of this opinion. Vice-Chancellor Dodd would not have esteemed it praise to be told that the case was a test of his nerve, for, though his feelings were easily wounded, he was far above being moved by clamor, either before or after a decision. I will not dwell on Vice-Chancellor Dodd’s other opinions. They are numerous and may be consulted in the volumes in which they are printed, beginning with 22nd Equity.

A strong magnet was drawing Vice-Chancellor Dodd away from the law to a pursuit attractive to one of his mathematical bent: I mean the intellectual side of the science and art of life insurance, and it finally captured him. Perhaps some readers of the New Jersey Law Journal have been favored, as I have been, by polite letters from one or more insurance companies, offering options between two or three propositions about equally unintelligible, and have, perhaps improvidently, solved the problem by selecting the one which seemed to promise most immediate cash. To such persons, if any there be, I respectfully commend the perusal of a valued and interesting book of about four hundred pages which lies before me, entitled “Reports to the Board of Directors of the Mutual Benefit Life Insurance Company, made by Amzi Dodd as Mathematician or President, from October, 1877, to January 21, 1901.” I can say like Hamlet, “I am ill at these numbers,” if I may be pardoned for perverting the meaning of the Prince of Denmark, but I have sufficient comprehension to see that the same man wrote the opinions and the reports, and that they are characterized by the same high mental and moral qualities.

Mr. Dodd was fond of Governor William Pennington and liked to talk about him. They became acquainted when they met in a cow case at Orange. An old woman’s cow was run down and killed by a Morris & Essex train and young Dodd sued the railroad. It had not then been judicially determined in New Jersey whether a cow or the locomotive had the superior right of way. The case was tried before a Justice of the Peace with a jury. Dodd was very much on his good behavior and treated the Governor with extreme courtesy. He had the crowd with him and triumphantly won the verdict. The next day Governor Pennington called on him, or sent for him, complimented him on his management of the case, and spoke of his own friendship with Amzi Dodd, an uncle of young Amzi, who was a capable Newark lawyer, a careless, unsystematic man of whom I heard Mr. Cortlandt Parker tell that he carried his papers in his hat, and was said sometimes to lose both hat and papers together.

One day, Amzi Dodd, the uncle, came into Governor Pennington’s office and said: “Good morning, Governor. Confound these young fellows! They get all my books away from me. Now there is ‘Elmer’s Forms.’ I own a copy of it, and it has my name in it, but it is gone. It is a very useful book. I need it every day. Governor, have you a copy that you can let me have?”

Governor Pennington, who was a courtly gentleman of the old school and something of a wag, answered very gravely:

“Mr. Dodd, I agree with you about ‘Elmer’s Forms.’ It is an excellent office book. I consult it every day and should be sorry to be without it, but you know, Mr. Dodd, that I am always ready to oblige you, and I will cheerfully let you have it if you will promise in writing to return it when I need it.” “Certainly,” said Mr. Dodd, and dashed off a serio-comic agreement to return the book when called for. He folded the document and handed it to the Governor, and the Governor handed him his own missing book.

I told this to my old Yale friend, William Pennington of Paterson, a nephew of the Governor, who chuckled and said, “I can see him doing it.”

Governor Pennington used often to associate young Dodd with him in the trial of causes. He had been Governor under the old Constitution and ex-officio Chancellor, but was not scholarly and relied very much on his knowledge of the world, tact, and strong common sense. Mr. Dodd once told me that while the Governor knew very little law, he was a most dangerous antagonist before a jury. If he had the close he was almost sure to get the jury with him, and if you had the close he would sit in front of the jury and smile your speech away.

Mr. Dodd is my authority for this story: Ex-Governor Daniel Haines, the Justice of the Supreme Court who held the Essex Circuit, was a man of strict views, and Mr. Cortlandt Parker, the Prosecutor of the Pleas, was discharging his important duties with a force and efficiency worthy of national issues and a wider stage, and so, what with the austerity of the Judge and the zeal of the Prosecutor, the way of the transgressor was growing hard, and it was getting to be common talk among the rounders and hangers-on at the courthouse that if a man was indicted he might as well plead guilty at once and save the county the expense of a trial. Some malefactor, with more money or spirit than the others, paid Governor Pennington a good fee and instructed him to fight. The Governor had been informed of the current gossip, and thought he would see what he could make out of it. So he told the jury in his most impressive manner, that a man is taken to be innocent until he is proved to be guilty; that this is the palladium of our liberties; and that he feared that this precious, fundamental right was not sufficiently borne in mind, even in the courthouse of the county of Essex, and that it was too much assumed that conviction ought to follow indictment. At this point Judge Haines, with a flushed face and his eyes shining brightly through his gold-rimmed spectacles, interrupted the Governor, and said that he had heard the remarks of the distinguished counsel with much surprise and regret; that they conveyed an imputation upon the Court itself—an intimation that he was derelict in his duty toward an important class of suitors, the defendants in criminal cases, and that he desired to know and now asked counsel to state from what persons he heard these strictures upon the Court. Governor Pennington, with his usual urbanity, bowed and said: “It is mainly from the criminals themselves.” This answer occasioned such a sudden revulsion of thought and feeling as to discompose the Judge and convulse the Bar.

It is now just seventy years since Mr. Dodd went to Trenton to hear and see Daniel Webster and Rufus Choate in the case of Charles Goodyear against Horace H. Day, pending in the Circuit Court of the United States before Judge Grier of the Supreme Court, and a District Judge. There is probably now no living member of the Bench or Bar of New Jersey who attended that trial even as a spectator. As to this case I quote briefly from Mr. Choate’s “Commemorative Discourse” on Webster, delivered at Dartmouth College on July 27, 1852:

“The professional life of Mr. Webster began in the spring of 1805. It may not be said to have ended until he died; but I do not know that it happened to him to appear in Court, for the trial of a cause, after his argument of the Goodyear patent for improvements in the preparation of India-rubber, in Trenton, in March, 1852. There I saw him and last heard him. The thirty-four years which had elapsed since, a member of this College, at home for health, I first saw and heard him in the Supreme Court of Massachusetts, in the county of Essex, defending Jackman, accused of the robbery of Goodrich, had in almost all things changed him. The raven hair, the vigorous, full frame and firm tread, the eminent but severe beauty of the countenance, not yet sealed with the middle age of man, the exuberant demonstration of all sorts of power, which so marked him at first—for these, as once they were, I explored in vain. Yet how far higher was the interest that attended him now: his sixty-nine years robed, as it were, with honor and with love, with associations of great service done to the State, and of great fame gathered and safe; and then the perfect mastery of the cause in its legal and scientific principles, and in all its facts; the admirable clearness and order in which his propositions were advanced successively; the power, the occasional high ethical tone, the appropriate eloquence, by which they were made probable and persuasive to the judicial reason—these announced the leader of the American bar, with every faculty and every accomplishment, by which he had won that proud title, wholly unimpaired; the eye not dim nor the natural force abated.”

Mr. Webster represented Goodyear, Mr. Choate represented Day. The injunction which Goodyear applied for was granted. Day surrendered his license, transferred his factory and machinery to a representative of Goodyear, and agreed to retire from the business for the sum of $350,000, and counsel fees amounting to $21,000 additional, which amounts were paid. Mr. Webster’s retainer was $15,000.

Mr. Dodd liked to talk about this case. Mr. Webster and Mr. Choate each spoke for two days, or parts of two days. Chancellor Green is said to have called Mr. Choate’s argument the finest that he ever heard in Court. Lawyers came from all over the State to attend the trial. Mr. Dodd said that at times Mr. Choate would seem “to go up like a balloon.” One who has heard or even read Choate knows how at times he would seem to lift himself and his audience on the rushing wings of his magical oratory.

One of the junior counsel for Day had made some impression by dwelling on the hardships of operatives if the injunction should be granted. The day was getting late and Judge Grier suggested to Mr. Webster, who was to speak next, that the Court adjourn until the next day. Mr. Webster assented, but said: “There is one thing that I wish to say now. If Mr. Day’s operatives are likely to be distressed, it will be because of his own default, of his own breach of faith, of his own repudiation of his own solemn contract, under his own hand and seal,” and, as he said it, his voice deepened and his eyes flashed, and the courtroom rang as with a peal of mellow thunder. Mr. Dodd came out of Court with ex-Chancellor Halsted who said: “Well, Amzi, the old lion has given his first growl.”

The case is reported in 10 Federal Cases, page 638, Case No. 5569.

In a footnote is this extract from Mr. Webster’s argument. It is interesting, for it shows him at his very best and is not generally known. His biographer, Mr. G. T. Curtis, speaks of this argument as one of the most remarkable and interesting of his forensic efforts.

“I believe,” said Mr. Webster, “that the man who sits at this table, Charles Goodyear, is to go down to posterity in the history of the Arts in this country, in that great class of inventors at the head of which stands Robert Fulton, in which class stand the names of Whitney and of Morse, and in which class will stand ‘non post long intervallo’ the humble name of Charles Goodyear. Notwithstanding all the difficulties he encountered he went on. If there was reproach he bore it. If poverty, he suffered under it; but he went on, and these people followed him from step to step, from 1834 to 1839, or until a later period when his invention was completed, and then they opened their eyes with astonishment. They then saw that what they had been treating with ridicule was sublime; that what they had made the subject of reproach was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, which had brought out a wonder as much to their astonishment as if another sun had arisen in the hemisphere above. He says of his cell in the debtors’ jail that ‘it is as good a lodging as he may expect this side the grave’; he hopes his friends will come and see him on the subject of India rubber manufacture; and then he speaks of his family and of his wife. He had but two objects, his family and his discovery. In all his distress and in all his trials his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his solace. May it please your honors, there is nothing upon the earth that can compare with the faithful attachment of a wife; no creature who, for the object of her love, is so indomitable, so persevering, so ready to suffer and to die. Under the most depressing circumstances woman’s weakness becomes mighty power; her timidity becomes fearless courage; all her shrinking and sinking passes away, and her spirit acquires the firmness of marble—adamantine firmness, when circumstances drive her to put forth all her energies under the inspiration of her affections. Mr. Goodyear survived all this, and I am sure he would go through the same suffering ten times again for the same consolation. He carried on his experiments perseveringly, and with success, and obtained a patent in 1844 for his great invention.”

There is a spirited report of the same case in 2 Wallace Jr., where, at pages 294 and 295, are some turns of thought and expression very characteristic of Mr. Webster.

A few months later, on October 24, 1852, Daniel Webster died at Marshfield.

Years after the Trenton trial Mr. Dodd was in Boston, and was inclined to call on Mr. Choate, at his office, but at the very door his diffidence made him withdraw. He should have gone on. An opportunity was lost. It was said of Mr. Choate that he treated every man with the courtesy due to a woman, and every woman as though she were a queen. He bore interruptions cheerfully, almost gladly. Mr. Choate would have been found working at a standing desk covered with his hieroglyphic notes, undecipherable except by himself; he would have cordially owned his visitor’s fraternal claim to his attention; and he would have kindled to the depths of his nature at the memory of his last encounter with his mighty friend.

That the sale of whisky is prohibited by law is held in Ellis v. Com. 186 Ky. 494, 217 S. W. 368, not to deprive it of its character as goods, wares, and merchandise, and a thing of value, within the meaning of a statute providing for punishment of one breaking into a storehouse and taking therefrom goods, wares, and merchandise or other thing of value.

IN RE B. & B. MOTOR SALES CORPORATION.

(U. S. Dist. Court, Dist. of New Jersey, Jan. 18, 1922).

Bankruptcy—Sale of Auto Truck—Conditional Agreement and Its Transfer—Right to Possession of Property—Uniform Conditional Sales Act

In the matter of B. & B. Motor Sales Corporation, bankrupt. On exceptions to Master’s report denying The First People’s Trust petition for certain property held by the Receiver.

Mr. Harry Green for Exceptants, The First People’s Trust.

Mr. Barney Larkey for the Receiver.

RELLSTAB, District Judge: The First People’s Trust excepts to the Master’s findings that it is not entitled to Apex truck No. 5365, found in the possession of the B. & B. Motor Sales Corporation (hereinafter called the bankrupt,) at the time the receiver took charge of the bankrupt’s estate.

The facts are: The bankrupt carried on the business of buying and selling auto trucks. On July 12, 1920, it agreed in writing with Robert Jones to sell him the truck in question for $1,955, payable in monthly installments. In this writing (called a “conditional sale agreement”), signed by both parties, it was declared, inter alia, that the bankrupt had that day delivered the truck to the buyer; that the title to the truck was not to pass to the buyer, but was to “remain vested in and be the property of the seller or assigns until the purchase price has been fully paid;” that if Jones failed to pay any of the installments when due the bankrupt might without demand, notice, or process, take possession of the truck, whereupon Jones’ right therein should terminate absolutely, and all payments made thereon be restrained by the bankrupt as liquidated damages and rent. At the same time, Jones executed two notes to the bankrupt, one for the sum of $1,427.15 (in the conditional sale agreement recited to be the balance to be paid on the truck), payable in twelve monthly installments, wherein it was declared that “upon default in the payment of any installment when due, the whole amount remaining unpaid shall immediately become due;” the other note represented the remainder (or some part of it) of the purchase price.

Both the conditional sale agreement and the $1,427.15 note subsequently were transferred by the bankrupt to the First People’s Trust. The transfer of the agreement is dated July 12, 1920, and recites that it is simultaneous with the purchase of the note; in terms it sells, assigns and transfers the bankrupt’s right, title and interest in the automobile in question and also in the conditional sale agreement, and asserts that the automobile was sold and not consigned to the buyer. The transfer of the note bears no date, is in the form of an endorsement, guarantees payment of the note, principal and interest, waives demand and protest, and is signed by the bankrupt by its President and Secretary, and by the same persons individually.

Jones had possession of the truck for several months, and, after making some of the stipulated payments, defaulted in further payments on both notes. The bankrupt repossessed itself of the truck, and was in possession thereof at the time the receiver took charge. Neither the conditional sale agreement nor the assignment was recorded. No rights or interests of any purchaser or creditor of Jones, the buyer, are involved in these proceedings, the controversy being exclusively between the assignee of the conditional sale agreement and the creditors of the bankrupt (seller).

The Master held that the assignment of the conditional sale agreement “was to act as a mortgage for the payment of the notes;” and that, as neither the conditional sale agreement nor the assignment had “been recorded in accordance with the laws of the State of New Jersey and ... the B. & B. Motor Sales Corporation had repossessed the truck and had it in its possession at the time of the appointment of the receiver,” the receiver, and not the First People’s Trust, was entitled to it.

First, as to the conditional sale agreement. The New Jersey Uniform Conditional Sales Act, approved April 15, 1919, effective from July 4, 1919 (N. J. P. L., p. 461), in section 1, defines a seller as “the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person.” In section 4 it declares that: “Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.”

The exceptions here referred to are contained in section 5, which declares that:

“Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.”

From this recital it will be seen that as no purchaser from or creditor of Jones is questioning the validity of such reservation, as between the bankrupt and Jones, the reservation to the bankrupt of title and property in the truck, was valid, notwithstanding the failure to record the agreement.

Second, as to the assignment of the conditional sale agreement: The New Jersey Chattel Mortgage Act (Revision of 1892; 1 Comp. Stat. N. J., p. 463) in section 4, declares:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed in the succeeding section of this Act.”

To constitute a mortgage the right of redemption must exist, and where such right is established the form of the conveyance is not controlling. Wilmerding, Heguet & Co. v. Mitchell, 42 N. J. L. (12 Vr.) 476; Hastings v. Fithian (E. & A.), 71 N. J. L. (42 Vr.) 311. An assignment of a chose in action, even if it be a security for the payment of a debt, is not a chattel mortgage within the meaning of the New Jersey Chattel Mortgage Act. Bleakley v. Nelson, 56 N. J. E. (11 Dick. Ch.) 674. This Act applies only “when the goods mortgaged are capable of such open and visible possession that their holding by a mortgagor, who had given a secret mortgage, might tempt someone to deal with him as the absolute owner.” Cumberland National Bank v. Baker, 57 N. J. E. (12 Dick. Ch.) 231, 242.

The assignment now under consideration was not given as a security. It was an absolute transfer of the seller’s property and interest in the conditional sale agreement and the automobile mentioned therein, without right of redemption. By this assignment The People’s Trust became the “legal successor in interest” referred to in section one of the Uniform Conditional Sales Act, supra; and the reservation of property contained in the conditional sale agreement was transferred to it by the assignment. The assigned agreement recited that the automobile had been delivered to the buyer, and the assignment expressly recited that it had been sold to Jones (the buyer); and the assignor at the time of the assignment was not in a position to retain the automobile, or to deliver it to the assignee. What the assignor could deliver to The People’s Trust was the conditional sale agreement, and that was done. Had the transfer been to secure a debt, the delivery of the conditional sale agreement would savor more of a pledge than a chattel mortgage, but, as the assignment was absolute and not conditional, it was neither.

Such a transaction is not contemplated by the Chattel Mortgage Act, which covers transactions where the title, but not possession, is transferred; but by the Uniform Conditional Sales Act, supra, which operates upon transactions where the possession, but not the title, is transferred. The right of The People’s Trust to the automobile is fixed by the assigned conditional sale agreement, and is superior to the rights of the bankrupt or its creditors—here represented by the receiver.

As opposed to this view, and in support of the Master’s finding, the case of David Straus Co. v. Commercial Delivery Co. (N. J. Ct. Ch.), 113 Atl. 604, affirmed by the Court of Errors and Appeals, 112 Atl. 417, is cited by the receiver. That case, made up of facts which existed before the Uniform Conditional Sales Act went into effect, presents many features similar to the instant case. However, the differences, and not the similarities, are controlling. The pertinent facts were: Coincident with the agreement (called a lease) relating to the delivery and use of the automobile truck, the lessee (driver) entered into a service contract with the lessor (Commercial Delivery Company). In that contract the driver agreed to work the truck under the direction of the lessor for two years, and in no other way than as directed by it, and to deliver to the lessor the entire gross monthly earnings. The contract also provided that out of these moneys the latter was to retain a certain percentage for its services, pay the wages of the drivers, storage charges, repairs, etc., and credit the balance to the driver; and that the truck should at all times be stored in a garage furnished by the lessor. The lessor assigned to the Morris Plan Company all its right, title and interest in the lease and the property therein described, and agreed, “in the event of any resale, release, or repossession of said property,” to pay to the assignee any deficiency between the net proceeds of such resale and the amount necessary to pay the unpaid installments. At the time of this assignment the assignee took a note made jointly by the assignor and the driver for the sum advanced by the assignee as consideration for the assignment. Subsequently an equity receiver in insolvency proceedings was appointed for the lessor, and the receiver found it in possession of the truck. The Morris Plan Company petitioned that the truck be delivered to it as the legal owner thereof. The Vice-Chancellor held that the assignor was a debtor of the assignee; that the assignment was not an absolute sale of the truck, but collateral security for the payment of the debt; that while the lease apparently gave the right of possession to the driver (lessee), the actual possession, by reason of the service contract, was always in the lessor; that the assignment of the lease was in legal effect a chattel mortgage; and that not having been recorded it was void as against the receiver and creditors of the assignor. As already stated this finding was affirmed by the Court of Errors and Appeals.

In the cited case, as noted, it was held that the possession, as well as the title, of the truck was in the lessor at the time of the assignment of the lease or sale agreement; and that the assignment was not an absolute sale of the agreement, but a security for the payment of the advances made by the assignee for which payment the assignor was jointly liable with the driver. In the instant case, the actual, as well as the right of possession of the truck, was not in the bankrupt, but in a third person—the buyer—and the assignment was an absolute transfer of the bankrupt’s property in the conditional sale agreement, without right of redemption. These differences are essential, and distinguish the cases.

The fact that the truck was taken from the buyer by the bankrupt subsequent to the latter’s assignment of the conditional sale agreement, gave it not property or right in the truck as against its assignee, The First People’s Trust. Whatever rights such possession gave it as against the buyer, they were subordinate to the assignee’s right of possession on the buyer’s default in the terms of the conditional sale agreement then held by the assignee. Such default having taken place, the assignee is entitled to the possession of the truck.

The Master’s findings are disapproved, and an order will be made giving The First People’s Trust the possession of the truck in question.

OSBORNE & MARSELLIS CO. v. ESSEX CO.

(Essex Co. Circuit Court, Feb. 3, 1922).

Compensation for Road Labor Performed Under County Contract—Ultra Vires Resolution

Case of The Osborne & Marsellis Company against County of Essex.

Messrs. Edwin B. and Philip Goodell for Plaintiff.

Mr. Arthur T. Vanderbilt for Defendant.

DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company against the County of Essex to recover compensation for labor performed and materials furnished in the improvement of a part of Franklin avenue, a county road in the county of Essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the Supreme Court, and the decision of that Court was affirmed by the Court of Errors and Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426.

The case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this Court for decision, without trial by jury, and that “No appeal will be taken from the judgment entered on his findings.”

From the agreed statement of fact it appears that there was no irregularity on the part of Osborne & Marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the Board awarding the contract. It also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, “except such work as was necessary to leave the unfinished road in condition as required by law.”

The grounds upon which the contract was set aside appear fully in the case of Chamber of Commerce v. County of Essex, 114 Atl. 426.

Two defenses to the plaintiff’s claim are urged: First, that the contract was not signed by the director of the Board of Freeholders; and, second, that the resolution constituted an ultra vires act of the Board of Freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires.

1. The resolution of the Board of Freeholders relating to the awarding of the contract, which included other contracts, is as follows: “Resolved that the contracts ... be and the same are hereby awarded;” and that “the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution,” the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. The contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. Therefore, I hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract.

2. The subject of the contract is one which was entirely within the powers of the Board, and hence it cannot be said that the action of the Board in awarding the contract to the plaintiff was ultra vires in that respect. After the adoption of the resolution awarding the contract, and after the approval of the plaintiff’s bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. Grade stakes were furnished by the County Engineer’s department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public.

This situation, it seems to me, brings this case within the decision of the Supreme Court in Wentink v. Freeholders of Passaic, 37 Vroom, p. 65, in which it appeared that a contract to do the mason work of a bridge was let to Wentink, which contract the Court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. Wentink expended $600 in attempting to secure materials and in the execution of the contract. The Court held, that even though the county had derived no benefit from such expenditure, Wentink might recover the amount expended. The Court said: “There was no lack of power to make the contract with the plaintiff. The fatal defect was in an irregular exercise of such power. It would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. All that he need look to is the power to make the ostensible contract.”

On the question of damages the Court said: “In the case in hand the performance of the contract was not prevented by the fault of the defendant, but by vis major. The making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder,” and that, “As to the measure of the quantum meruit for the work done the contract rate should govern.”

It is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. Since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the Court will be in favor of the plaintiff and against the defendant for that sum.