Argued November term, 1908, before GAR-delivery, to warrant the presumption that a RISON, PARKER, and VOORHEES, JJ.

there is nothing upon which to rest a presumption that they were not damaged when delivered by the shipper. There is no reason why goods may not be shipped although damaged, and without proof to the contrary the presumption that they were, when shipped, in the condition found at their destination, is at least as strong as that they were not. The condition in which they were delivered for shipment is within the knowledge of the shipper, and, proof of it readily obtainable, which would not be the situation if the damage happened while passing from one to another of intermediary carriers, and because of the difficulty of showing by which of them the damage was done, the rule was adopted that goods delivered to one carrier in good order are presumed to have come to each successive carrier in like con

condition when delivered in Ohio for trans-
portation. The defendant moved for a non-
suit, upon the ground that the declaration
charged that the goods were shipped over
the defendant's road from Cincinnati, and
there was no proof that they came into the
hands of the defendant company, or were
delivered to it in good condition. The
freight receipt was made out by the duly au-
thorized agent of the defendant company,
and its truth is not disputed. If the receipt
for freight does not warrant the inference
that the "Union Line" was managed and
controlled by the defendant from Brighton,
Ohio, then there was no proof that the goods
were originally received by the defendant
as the initial carrier; but it is admitted that
during some part of the route the goods
came into the hands of the defendant, and
that it was the last of the connecting car-dition.
riers. We do not think the receipt is evi-
dence that the defendant was the initial car-
rier, for it states that the original point of
shipment was Brighton, and that it was
shipped from Dayton, Ohio, over "C. H. D.," |
which the case shows stands for the Chica-
go, Hamilton & Dayton Railroad, by the
Union Line. The utmost that can be infer-
red from the receipt is that the defendant re-
ceived the freight from another carrier at
Dayton, Ohio, which had brought it from
Brighton.

The rule undoubtedly is that the last of a line of connecting carriers is presumed, in the absence of proof to the contrary, to have received freight in the same condition in which it was delivered to the initial carrier, and if it appears to have been shipped in good order, and is in a damaged condition when the last carrier offers to deliver it, a presumption arises that the injury resulted from the negligence of the last carrier; but if there be no proof that the freight was in any other condition when it was delivered to either of the preceding carriers than as found in the hands of the last carrier, the presumption of negligence on the part of the final carrier does not arise. In the present case there was no waybill or receipt for delivery by the shipper showing the condition of the goods when delivered to the initial carrier, as is usually the case. If there had been, and it stated that the freight was received in good order, it, if offered as evidence, would have been prima facie proof of its contents, and, until rebutted, which it may be (Ellis v. Williard, 9 N. Y. [5 Seld.] 529), the presumption would be that the goods were delivered by the shipper to the initial carrier in good order, and that they were in that condition when delivered to the successive carriers; but a presumption must rest upon some proven or admitted fact or facts, and without it appears that the goods were not in a damaged condition when the shipper delivered them to the first carrier,

As there was no proof in this case that the goods were, when shipped, otherwise than as they were at the end of the journey, there can be no presumption that the last carrier received them in any other or different condition, and for this reason the judgment should be reversed.

(77 N. J. L. 404)

SHIELDS v. STERRAT. (Supreme Court of New Jersey. Feb. 23, 1909.) BROKERS (§ 43*)-COMPENSATION-RIGHT TO.

The plaintiff, a real estate agent, without a written agreement that the seller would pay commissions if the agent procured a purchaser for real estate, called the attention of a person who subsequently purchased to the property and induced him to consider the matter, and he purchased the property from the vendor without further action on the part of the agent who rendered no further service in the matter. After he had seen the purchaser and called his attention to the property, the agent obtained from the vendor a written promise to pay commissions if he brought about a sale. Held that, as no service was rendered by the agent after the written agreement was executed, the written contract was nothing more than a subsequent promise to pay for services already rendered, and, having no consideration to support it, falls within the rule laid down in Stout v. Humphrey, 69 N. J. Law, 436, 55 Atl. 281.

[Ed. Note.-For other cases, see Brokers, Dec. Dig. § 43.*]

(Syllabus by the Court.)

Appeal from District Court of Newark. Action by Frank L. Shields against Joseph Sterrat. Judgment for plaintiff, and defendant appeals. Reversed.

Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ.

Joseph A. Connolly, for appellant. Frank A. Boettner, for appellee.

BERGEN, J. This action is based upon a written contract dated May 25, 1908, which reads as follows: "I, Joseph Sterrat, of the township of Nutley, N. J., agree to give to

F. L. Shields the sum of four hundred dollars, ($400.) provided the sale of a ten (10) acre farm located west and north of the Atwater Realty Company, is made by J. E. Finger or F. L. Shields, at agreed price of fifty-four hundred dollars ($5400.) Joseph Sterrat." It appears from the state of the case sent up by the trial court that on May 24th, which was Sunday, the plaintiff was authorized orally by the defendant to secure a purchaser for the lands described in the contract, and that on the same day he called

upon the president of the realty company, and offered the land to him; that the president of the proposed purchaser promised to consider the matter and let the plaintiff know whether or not the company would buy by the following Tuesday; that on Monday, May 25th, the plaintiff telephoned to the defendant that he desired a written contract; that this contract was written and signed by the defendant and mailed to the plaintiff May 26th; that without further communication with the plaintiff Mr. Atwater, the president of the realty company, went to the defendant on May 26, 1908, and purchased the property. There was a motion for a nonsuit and also for a finding in favor of the defendant. Both motions were refused, and there was a judgment for the plaintiff, which the defendant seeks to reverse by this appeal.

whether the subsequent promise to pay is in writing or oral, if there was no consideration for the agreement. It therefore follows that the plaintiff was not entitled to recover, and that the nonsuit should have been allowed. For this reason, the judgment below is reversed.

(77 N. J. L. 344) PINE v. SUPREME CIRCLE BROTHERHOOD OF THE UNION.

-

Ac

(Supreme Court of New Jersey. Feb. 23, 1909.)
INSURANCE (8 815*) BENEFIT SOCIETY-
TION TO RECOVER BENEFITS-DECLARATION.
A count of plaintiff's declaration sets out
that one Pine was a beneficial member of the de-
fendant society, and as such was a member of
the death benefit fund of the society; that the
plaintiff is the sole beneficiary of Pine; that
Pine is dead; and that the plaintiff as sole ben-
eficiary is entitled to the death benefit fund.
Held, that the count is bad on demurrer in
failing to state what class of persons is legally
entitled to the death benefits of deceased mem
bers, and that the plaintiff comes within that
class, and is the sole member of the class, and
therefore the sole beneficiary.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 815.*]

(Syllabus by the Court.)

Action by Amy H. Pine against the Supreme Circle Brotherhood of the Union. Demurrer to declaration sustained.

Argued November term, 1908, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ.

Higbee & Coulomb, for plaintiff. John F. Harned, for defendant.

TRENCHARD, J. This is a demurrer to a declaration. As amended by consent at the argument, it applies only to the first count.

Two reasons were urged by the appellant, the defendant below, upon the argument of this appeal: First, that the judge upon the trial admitted the contract in evidence, although the execution thereof by the defendant was not proven. It is sufficient to say on this point that there was no subscribing witness, and, the paper being shown to Mr. Sterrat, he admitted that he wrote and signed the contract, and then mailed it to the plain- That count, which was also by consent tiff. The second objection urged is that amended at the argument, sets out that one there should have been a nonsuit because John F. D. Pine in the year 1895 was a benethe contract was made after the services had ficial member of the defendant society, and been rendered. It appears that at the time as such was a member of the death benefit the plaintiff called upon Mr. Atwater there fund of the society; that Pine, being such was no written contract or agreement be- a member, disappeared at Cardiff in the tween the plaintiff and the defendant for kingdom of England on the 25th day of Sepcompensation or commissions upon the sale tember, 1895, and has never been heard of of this real estate, and that the agreement since that time by the plaintiff or any one was made by the purchaser with the owner else; that Pine has remained beyond the sea without again seeing the plaintiff, so that and has absented himself from this state and whatever the plaintiff did towards bringing from the place of his last residence for more about this sale was done on Sunday, and than seven years successively; that the plainbefore there was any written contract for tiff for and in behalf of Pine since the year commissions as required by law, and if the 1895 has kept and performed all the terms, plaintiff is entitled to recover anything it is conditions, and acts which he would have because on the 24th day of May, before the kept, maintained, and performed; that she is contract upon which he relies had been ex- the sole beneficiary of Pine; that Pine, by ecuted, he had called the attention of a pur- reason of his absence from the state for more chaser to the property, who did afterwards than seven years, and not being heard of durpurchase it, so that this contract was a sub-ing that time, is presumed to be, and is, dead; sequent promise to pay for services already and that, being dead, the plaintiff as sole rendered, and falls within the ruling in beneficiary is entitled to a death benefit fund Stout v. Humphrey, 69 N. J. Law, 436, amounting to $500. 55 Atl. 281. It can make no difference

The only ground of demurrer necessary to

N. J.)

BLANCHARD v. NEWARK JOINT DISTRICT COUNCIL U. B. OF C. & J. 1131

The first reason rests upon the fact that the act of 1908 is entitled "A supplement to an act, entitled 'An act to provide for the purchase of voting machines, and to regulate the use of the same at elections, approved April 28, 1905." The point insisted upon is that the act is not a supplement, but either an amendment or a repealer of the act of April 28, 1905 (P. L. p. 386). We see no force in this argument. By the act of 1905 the Secretary of State was empowered to determine in what election districts voting machines should be used. The effect of the act of 1908 is to give the voters of any election district the right to review his action. It is a supplement or addition to the scheme of the original act, and the title, as a whole, evinces an intent to legislate upon the use of voting machines.

consider is the third, which is that the, tion precincts or districts within a municicount "does not show any duty or obligation | pality. by the defendant to the plaintiff." We think the count fails to disclose a cause of action. The statement that the plaintiff is the sole beneficiary of the deceased member is a mere conclusion. A statute of this state (P. L 1898, p. 425, § 9) provides that it shall be lawful for such benevolent associations to contract with their members to pay death benefits according to the rules or by-laws adopted by such associations, and to agree to pay the same to the husband, wife, father, mother, son, daughter, brother, sister, or legal representative of such member after his or her death. The declaration, therefore, should state what class of persons is legally entitled to the death benefits of a deceased member either by virtue of the laws of this state or the rules and by-laws of the organization or by both, and should also show that the plaintiff comes within that class, and is the sole member of that class, and therefore the sole beneficiary. This the count of the declaration does not do, and for that reason is bad on demurrer.

The objection that the act is a private, local, or special act is equally futile. The constitutional prohibition appealed to seems to be the one directed against private, local, or special acts affecting the internal affairs of

The defendant is entitled to judgment on municipalities. The method of conducting the demurrer.

(77 N. J. L. 288)

BAYONNE (17 cases).

elections is a matter of general state concern, and it has always been a matter of

MARA et al. v. MAYOR, ETC., OF CITY OF state regulation. We see no reason to hold, nor are we pointed to any authority which (Supreme Court of New Jersey. Feb. 23, 1909.) requires us to decide, that an act regulatSTATUTES (§§ 94, 120*)_SUPPLEMENTAL ACT-ing the machinery of elections has to do with TITLE-SPECIAL OR LOCAL ACTS REGULA- the internal affairs of a municipality. Moreover, the act is neither private, local, nor special. It provides a general scheme by which any district in which the Secretary of

TION OF MUNICIPAL AFFAIRS.

The act of April 10, 1908 (P. L. p. 266), is constitutional.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. 103, 125, 126, 168-172; Dec. Dig. State has placed a voting machine may de§§ 94, 120.*]

(Syllabus by the Court.)

Mandamus by Hugh H. Mara and by 16 others against the Mayor and Board of Councilmen of the City of Bayonne. Peremptory writs granted.

Argued November term, 1908, before GUMMERE, C. J., and SWAYZE and TRENCH

ARD, JJ.

Daniel J. Murray and Thomas F. Noonan, for relators. Elmer W. Demarest, for de

fendants.

SWAYZE, J. In this case an alternative writ of mandamus issued to compel the defendants to order a special election to determine upon the retention or rejection of voting machines pursuant to the act of April 10, 1908 (P. L. p. 266). The defendants, by their return, seek to justify their refusal to order the special election upon the ground that the statute is illegal, void, and in violation of the Constitution for two reasons: (1) Because the title of the act does not express its purpose and object; (2) because the act is of a private, special, and local character, and purports to apply only to elec

termine for itself whether it will retain the same or not. It applies to every district in the state which is similarly situated; that is, to every district in which a voting machine has been placed. So far from tending to produce diversity its tendency would be to produce uniformity by bringing the method of voting in districts where a voting machine had been placed into harmony with the method of voting in other districts.

The return fails to present any reason why a mandamus should not issue. Let a peremptory writ be issued in this case, and in the 16 other cases that are in the same situation.

(77 N. J. L. 389) BLANCHARD v. NEWARK JOINT DISTRICT COUNCIL OF UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA et al.

(Supreme Court of New Jersey. Feb. 23, 1909.) TRADE UNIONS (§ 4*)-RIGHTS AND LIABILITIES OF MEMBERS-INTER SE.

Plaintiff was a member of a trade union, from which he was suspended and a fine imposed of $100 by a local council of the organization. He refused to pay the fine, and the de

fendants, members of the local council, there- | fore might discharge him without cause. upon induced his employers to discharge him, This does not meet the point, which is that to recover damages for which plaintiff brought suit against them. During the pendency of this plaintiff was deprived of employment because suit plaintiff appealed from the order suspending of unlawful threats made to Hedden & Sons, and fining him to the national association of which influenced them to discharge him, and the order, by which tribunal the order was re- that this would not have happened except for voked and plaintiff restored to his membership. Held, that the taking of the appeal from the defendants' conduct. order did not amount to a waiver by the plaintiff of his right to damages resulting from the illegal acts of the defendants in procuring his discharge from employment.

Second. That defendants did not request the discharge of plaintiff. On this point it is sufficient to say that what they did amounted to such a request, and was accompanied with a threat if not complied with.

Third. That the court was without jurisdiction to retain the case when motion for taken an appeal from the order of suspension nonsuit was made, because the plaintiff had and the imposition of the fine, from which it is argued he had submitted to the jurisdiction of the order. Taking an appeal from an order relating to the discipline of such an association does not amount to a waiver of damages resulting from the illegal act of the Newton defendants in procuring the discharge of the plaintiff in order to enforce the act appealed from.