(115 A.)

Application by executors of the estate of Scotto C. Nash under decree in suit by Henry W. Doremus and others against the City of Paterson, to fix percentage of rental loss and for arrested development in the matter of the estate of said decedent. Application denied.

Garret Van Cleve, of Paterson, for executor.

Francis Scott, of Paterson, for city of Paterson.

We find no evidence of dependency in the rec-! ord, within the rulings of our courts. Jackson v. Erie R. R. Co., 86 N. J. Law, 550, 91 Atl. 1035; Havey v. Erie R. R. Co., 88 N. J. Law, 684, 96 Atl. 995; Miller v. Public Service Ry. Co., 84 N. J. Law, 174, 85 Atl. 1030; Muzik v. Erie R. R. Co., 85 N. J. Law, 129, 131, 89 Atl. 248, affirmed 86 N. J. Law, 695, 92 Atl. 1087; Conners v. Public Service Elec. Co., 89 N. J. Law, 99, 97 Atl. 792; Reardon v. Philadelphia, etc., R. R. Co., 85 N. J. Law, 90, 88 Atl. 970. The testimony shows the deceased daughter, Amy Sindle, was 17 years old. She was killed on September 6, 1918, in the defendant's factory by a flare-up of powder. She had been LEWIS, V. C. This is an application under so employed for a few days only, from August a decree of this court to fix the percentage of 27 to September 6, 1918, for which she had not rental loss and for arrested development in been paid at the time of her death. At one the matter of the estate of Scotto C. Nash. time the daughter gave the mother $11 earned The case of Doremus against the city of Patfrom previous work. This is the only money erson was heard by the late Vice Chancellor the daughter ever gave her mother. The moth- Stevens, and in the decree advised by him er testified: 'A. We got a player piano, and my daughter went to work to pay for that, and he made provision for these payments at we got it just a day before she died; that stated times to the riparian owners as long cost $550; then she went to work to pay for as the pollution should exist. The amount the piano-help pay for it." As we read the involved as far as the Nash claim is concerntestimony in the record, Mrs. Sindle, the peti-ed is in the neighborhood of $1,476. The final tioner, was dependent upon her husband and opinion in this lengthy litigation was filed her son, and not upon her deceased daughter. by Vice Chancellor Stevens in 1913, and was "The judgment based upon the award is affirmed by the Court of Errors and Appeals.

therefore reversed."

Albert Comstock, of Paterson, for appel

lant.

Collins & Corbin, George S. Hobart, and Ralph E. Cooper, all of Jersey City, for respondent.

PER CURIAM. The judgment under review herein should be affirmed for the reasons expressed in the opinion of the Supreme Court.

TRENCHARD, PARKER, MINTURN, ACKERSON, and VAN BUSKIRK, JJ., dis

sent.

(93 N. J. Eq. 49)

DOREMUS et al. v. CITY OF PATERSON. (No. 24/813.)

The case had been before him on several previous occasions. 63 N. J. Eq. 606, 52 Atl. 1107; 65 N. J. Eq. 711, 55 Atl. 304; 69 N. J. Eq. 775, 61 Atl. 396; 70 N. J. Eq. 296, 62 Atl. 3; 73 N. J. Eq. 476, 69 Atl. 225. His views at this time were based upon the promise of the defendant that the pollution of the Passaic river would cease in the year 1916. In consequence of this promise, no injunctive order was issued against the defendant. The pollution still continues owing, it is asserted to the noncompletion of the trunk sewer. Since 1916, and every two years thereafter, the defendant has adjusted its damages with the various riparian owners, and on application before me by the solicitors representing all the riparian owners except the Nash estate, a decree consented to by the solicitor of the city was entered.

Application was then made to take testimony under the decree to ascertain whether there had been any change in conditions as

(Court of Chancery of New Jersey. July 29, to the Nash estate since the making of the

1921.)

Navigable waters 40—Decree fixing damages to riparian landowner during continuance of pollution of water will not be disturbed unless conditions change.

An application by a riparian owner for an order fixing damages for decrease in rental value and arrested development on account of pollution of a stream on the claim that conditions had changed since a decree was entered refusing an injunction and providing for payments to riparian owners at stated times, while the pollution continued, must be denied where there is no showing of change in conditions since the decree.

last decree by Vice Chancellor Stevens. It was urged, on behalf of the defendant, that the matter could be taken up under the decree in this informal way. I am rather of the opinion that to deal with this subject, which is of such importance, that the better procedure would be by a supplemental bill. However, upon the consent of both parties, a hearing took place at which several witnesses

were sworn. From a consideration of the

testimony of these witnesses it does not appear that there has been any material change in the conditions since the taking of the testimony before the late Vice Chancellor Stevens, certainly not since the making of the last

(115 A.) Sullivan & Daley and Ira W. Thayer, all [3] There is no dispute as to the facts that of Berlin, for plaintiff. the defendant got precisely what it bargained Drew, Shurtleff, Morris & Oakes and Irv-for, that when the contract was executed ing A. Hinckley, all of Lancaster, for defendant.

PEASLEE, J. [1] The motion to dismiss the action because the plaintiff, being a foreign corporation, had not complied with Laws 1913, c. 187 (Ensign v. Christiansen, 79 N. H. 353, 109 Atl. 857), when its cause of action accrued, is based upon the assumption that its refusal to pay an installment when it became due was a breach of the entire contract. The required appointment of the Secretary of State as attorney for the service of process had been made before the installment now sued for became due under the terms of the contract; and unless the failure to pay the earlier installment was a breach of the entire contract, the present cause of action had not accrued when the statute was complied with. This question is involved in the prior decision in the case. 79 N. H. 295, 108 Atl. 291. If the position now taken by the defendant were sound, all the plaintiff's rights under the contract should have been considered and adjusted in the earlier litigation. But it was there held that

"The jury were properly instructed that if they found for the plaintiff they should return a verdict for $25,000, as stipulated in the contract." 79 N. H. 297, 108 Atl. 292.

The alleged breach by a notification to the plaintiff that the defendant abandoned the contract is not involved upon this issue, for the notification was subsequent to the defendant's compliance with the statute. The motion to dismiss the action should be denied. The question whether, if the breach sued for had occurred before compliance with the statute, the plaintiff could maintain a suit after a subsequent compliance, is one upon which no opinion is expressed.

The effect upon the issue of damages of the defendant's notice of its abandonment of its rights under the contract remains to be considered. The defendant's claim is that this act so far abrogated the contract that the plaintiff could not thereafter recover the agreed price, but only damage equal to the difference between that price and the value of the uncut timber.

nothing remained to be done by the plaintiff, and that the plaintiff has not since done any act to interfere with the defendant's full enjoyment of whatever it acquired by the contract. Under these circumstances, it was the right of the plaintiff to stand upon the contract and sue for and recover the price agreed to be paid. Bates Street Shirt Co. v. Place, 76 N. H. 448, 452, 84 Atl. 47.

[4] The failure of the purchaser under such a contract to exercise the license granted, and cut all the timber, does not give him a right to recover back part of the purchase price. Lamprey v. Eastman, 68 N. H. 198, 34 Atl. 741. His bargain was for the right to cut all the timber he chose to cut. His decision to refrain from cutting it all can no more defeat the vendor's right to recover the full price than it could give the vendee a right to recover back part of the price. The rights of the respective parties do not depend upon which brings the suit. If the purchaser could compel the seller to retake the privilege granted by the license, and account for it at its market value, in case he sued upon the promise to pay, no reason appears why the purchaser could not assert the same right in his suit to recover back a part of a prepayment. It is not the form of the action, but the substance of the right, which controls. The purchaser either has or has not the right to return what he bought to the vendor and claim credit for it. If he had the right it would not be defeated by the fact that he gave money for it instead of a promise to pay. If, in this case, the practical effect of what the promisor did was to leave the title to the trees in the promisee, it was equally so in the earlier case.

Lamprey v. Eastman, supra, is conclusive against the right here asserted. That decision rests upon the proposition that there had been full performance by the seller. The fact that the purchaser paid in advance is not relied upon to support the result. The answer to the promisors' claims in both cases is that they received "all they bargained and paid for." In this case, as in that, it was "their own fault that they did not take the remaining timber." 68 N. H. 199, 34 Atl. 741, 742. [2] The contract between the parties, not The authorities relied upon by the defendbeing under seal, did not operate to transfer ant as establishing a different rule of damtitle to the standing trees. Kingsley v. Hol-ages (Griswold v. Sabin, 51 N. H. 167, 12 Am. brook, 45 N. H. 313, 86 Am. Dec. 173. The statute then in force (R. S. c. 130, § 3) has since been re-enacted (P. S. c. 137, § 3), and its meaning is not now open for consideration, so far as this question is concerned. The contract was a mere license to enter and cut timber. Lamprey v. Eastman, 68 N. H. 198, 34 Atl. 741, and cases cited. But the answer to the query whether the contract conveyed

Rep. 76; Hurd v. Dunsmore, 63 N. H. 171; Davis v. New England Cotton Yarn Co., 77 N. H. 403, 92 Atl. 732; Haines v. Tucker, 50 N. H. 307) are not in point. Each of these cases relates to an executory contract, which was terminated by the defendant's acts before the plaintiff had completed his part of the bargain, or by a refusal to participate in some concurrent act which was to complete

A Massachusetts case is also relied upon in [6] The argument that this conclusion perGriswold v. Sabin, supra. Old Colony Rail-mits the plaintiff to keep its timber and also road v. Evans, 6 Gray, 25, 66 Am. Dec. 394. recover the price of it from the defendant However the rule in that jurisdiction may be rests upon the fallacy that the defendant as to a refusal to accept and pay for a deed, bought the timber. What it bought was of the later cases make it plain that the law of the same nature as an option. The contract that commonwealth permits a recovery as gave the promisor the right to thereafter acclaimed by the plaintiff in this case. White quire a title by cutting the timber. The purv. Solomon, 164 Mass. 516, 42 N. E. 104, 30 chise price was to be paid for that right, and L. R. A. 537; International Text Book Com- whether the right was or was not subsequentpany v. Martin, 221 Mass. 1, 108 N. E. 469; ly exercised has no bearing upon the promMassachusetts Biographical Society v. Rus- isee's right to enforce payment. sell, 229 Mass. 524, 118 N. E. 662.

Hurd v. Dunsmore, 63 N. H. 171, was another suit upon a bond, the breach relied up-formance, and that, if the plaintiff could be on being (apparently) the refusal to accept the deed and pay the purchase price. The case is similar to Griswold v. Sabin, supra. The opinion merely states the general rule, and adds nothing to the discussion.

(115 A.)

cree for a deed of so much timber as the de- |priate equitable relief for the defendant fendant should take within the five years would have been an injunction against such would confer upon the defendant no rights action. Stratton v. Stratton, 58 N. H. 473, 42 which are not available to it under the pres-Am. Rep. 604. That is, nonaction by the sellent contract. The only weakness in the de-er would be ordered to prevent a breach of fendant's rights, as the contract stands, is the contract. If this is to be treated as a that in the peculiar situation the plaintiff limited form of specific performance (Lumley might by its termination of the license put v. Wagner, 1 De G. M. & G. 604), it does not an end to the defendant's right to cut. But necessarily show that the contract is executhere is no suggestion that the plaintiff ei- tory within the rule as to return of property. ther has taken or will take such action. Unless the applicant for a decree for specific performance shows that his remedy at law is inadequate, he is not entitled to the relief sought.

"This is the ground of this branch of equity jurisprudence." Eckstein v. Downing, 64 N. H. 248, 260, 9 Atl. 626, 629 (10 Am. St. Rep. 404).

[8] But if it be assumed that the situation and conduct of the plaintiff here were such that a decree for specific performance could have been ordered, the attitude and conduct of the defendant deprived it of any such right. What was the situation when the defendant attempted to repudiate the contract, in December, 1918? It was and had been claiming that the contract was invalid because executed without authority, and that it was voidable for fraud, and it was resisting the payment of an overdue installment. 79 N. H. 295, 108 Atl. 291. One in such a situation has no right to specific performance. Having elected to attempt to rescind the contract, it could not thereafter be heard in equity to ask for such relief. Eastman v. Plumer, 46 N. H. 464.

The defendant's sole ground for asking for a deed would be that, if the plaintiff took certain action, the defendant's rights would be interfered with. So long as the plaintiff did nothing, the defendant had a perfect right to take the timber and complete the contract. The fact that the plaintiff might, by violation of its promise, defeat the defendant's right, might be thought to come short of showing Any right to specific performance was gone that action by the plaintiff, to cut off its pow- at the time the defendant sought to repudier to do repudiatory acts it did not intend to ate the contract, and no repudiatory right do, was necessary to complete the perform- could then be based thereon. It was then, if ance of a contract which was fully perform- not before, bound by the contract as it was able without any further action on the plain-originally executed. tiff's part.

feasible or not, has never been denied or interfered with in any way. It elected to purchase this right only, and is not in a position to claim rights it might have had if it had made a different contract. The conclusion stated in the opinion in the suit for the earlier installment is equally applicable to the present situation.

The fundamental difficulty with the deAn unrecorded deed is full performance of fendant's positions throughout the case is a seller's contract for land; and the fact that that it bought merely a license to enter and he might give an innocent purchaser a sub-cut timber, and that such right, whether desequent deed which could defeat the first conveyance by priority of record would not show that the seller had not fully performed his contract. The mere fact that the seller still has certain obligations does not prove that the contract is still executory upon his part. It depends upon the nature of the obligations. "A contract executed, as well as one which is executory, contains obligations binding upon "The plaintiff having fully performed its conthe parties. A grant, in its own nature, tractual duties, the defendant's liability for amounts to an extinguishment of the right of the amount of the installment, withthe grantor, and implies a contract not to re-out regard to the amount of timber it has cut, assert that right." Fletcher v. Peck, 6 Cranch, is clearly established by the unequivocal terms 87, 137, 3 L. Ed. 162. of the contract." 79 N. H. 295, 298, 108 Atl. 291, 292.

If there had been in this case a revocation of the license, or a threat thereof, the appro

Case discharged.