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Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
1. In early programming languages, conserving machine resources was not an issue.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 435
2. In assembly language, the programmer need not manage the details of the movement of data items within memory.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 437
3. The programmer’s task is to devise the appropriate step-by-step sequence of “imperative commands” that, when carried
out by the computer, accomplish the desired task.
a. True
b. False
ANSWER: True
POINTS: 1
REFERENCES: 439
4. Even though a high-level programming language allows the programmer to think of memory locations in abstract rather
than physical terms, the programmer is still directing, via program instructions, every change in the value of a memory
location.
a. True
b. False
ANSWER: True
POINTS: 1
REFERENCES: 439
5. Machine language can use the notation --, //, or # to denote a program comment.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 440
6. In a high-level language, the programmer’s only responsibilities for managing data items are to declare (or in the case
of Python, create) all constants and variables the program will use.
a. True
b. False
ANSWER: True
POINTS: 1
Cengage Learning Testing, Powered by Cognero Page 1
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
REFERENCES: 454
7. The availability of the appropriate compiler guarantees that a program developed on one type of machine can be
compiled on a different type of machine.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 455
8. The problem identification document commits the final and complete problem specification to paper and guides the
software developers in all subsequent decisions.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 468
9. If anything is changed on an already-tested module, update testing is done to be sure that this change hasn’t introduced
a new error into code that was previously correct.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 471
10. Program maintenance, the process of adapting an existing software product, may consume as much as 85% of the total
software development life cycle budget.
a. True
b. False
ANSWER: False
POINTS: 1
REFERENCES: 472
11. A program written in a(n) procedural language consists of sequences of statements that manipulate data items.
_________________________
ANSWER: True
POINTS: 1
REFERENCES: 439
12. Each low-level language supports if statements and while loops. _________________________
ANSWER: False - high-level, high level
POINTS: 1
REFERENCES: 444-446
Cengage Learning Testing, Powered by Cognero Page 2
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
13. Maintenance should be viewed as a separate step in the software development life cycle.
_________________________
ANSWER: False - should not, shouldn’t
POINTS: 1
REFERENCES: 472
14. The program implementation phase is the time to plan how it is to be done. _________________________
ANSWER: False - design
POINTS: 1
REFERENCES: 468
15. A modern programming EXE provides a text editor, a file manager, a compiler, a linker and loader, and tools for
debugging, all within this one piece of software. _________________________
ANSWER: False - IDE
POINTS: 1
REFERENCES: 472
16. Each assembly language statement corresponds to, at most, one ____________________ language statement.
ANSWER: machine
POINTS: 1
REFERENCES: 436
17. Individual assembly language statements, though easier to read, can be no more powerful than the underlying
____________________.
ANSWER: instruction set
POINTS: 1
REFERENCES: 436
18. When we moved from machine language to assembly language, we needed a piece of system software—a(n)
____________________—to translate assembly language instructions into machine language.
ANSWER: assembler
POINTS: 1
REFERENCES: 437
19. The ____________________ computer architecture is characterized by sequential fetch-decode-execute cycles.
ANSWER: Von Neumann
POINTS: 1
REFERENCES: 439
20. Newer languages such as Java and C# were developed specifically to run on a variety of hardware platforms without
the need for a separate ____________________ for each type of machine.
ANSWER: compiler
POINTS: 1
REFERENCES: 462
Cengage Learning Testing, Powered by Cognero Page 3
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
21. Assembly language programs are ____ specific.
a. language b. compiler
c. architecture d. machine
ANSWER: d
POINTS: 1
REFERENCES: 436
22. In assembly language, the programmer must take a microscopic view of a task, breaking it down into tiny subtasks at
the level of what is going on in individual ____.
a. memory locations b. programs
c. subtasks d. tasks
ANSWER: a
POINTS: 1
REFERENCES: 437
23. ____ were created to overcome the deficiencies of assembly language.
a. Compilers b. Low-level programming languages
c. High-level programming languages d. Linkers
ANSWER: c
POINTS: 1
REFERENCES: 437
24. Machine language is also known as ____ code.
a. object b. source
c. link d. reloadable
ANSWER: a
POINTS: 1
REFERENCES: 437-438
25. The software translator used to convert our high-level language instructions into machine language instructions is
called a(n) ____.
a. linker b. editor
c. loader d. compiler
ANSWER: d
POINTS: 1
REFERENCES: 438
26. High-level language instructions are known as ____ code.
a. object b. link
c. source d. reloadable
ANSWER: c
POINTS: 1
REFERENCES: 438
Cengage Learning Testing, Powered by Cognero Page 4
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
27. The object code for a task that needs to be performed often can be stored in a(n) ____.
a. code template b. code library
c. code container d. object library
ANSWER: b
POINTS: 1
REFERENCES: 438
28. Procedural languages are also called ____ languages.
a. immediate b. translated
c. interpreted d. imperative
ANSWER: d
POINTS: 1
REFERENCES: 439
29. ____ are instructions in the programming language.
a. Immediate commands b. Imperative commands
c. Intrinsic commands d. Internal commands
ANSWER: b
POINTS: 1
REFERENCES: 439
30. A ____ stores and fetches values to and from memory cells.
a. random access memory b. read-only memory
c. flash memory d. memory cache encoder
ANSWER: a
POINTS: 1
REFERENCES: 439
31. ____ is the rules for exactly how statements must be written in a programming language.
a. Order b. Precedence
c. Syntax d. Context
ANSWER: c
POINTS: 1
REFERENCES: 440
32. Ada, Java, C++ and C# require a ____ to terminate an executable program statement.
a. semicolon b. period
c. blank space d. comma
ANSWER: a
POINTS: 1
REFERENCES: 440
33. The ____ evaluates a proposed project and compares the costs and benefits of various solutions.
a. design study b. feasibility study
Cengage Learning Testing, Powered by Cognero Page 5
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
c. specification study d. work breakdown study
ANSWER: b
POINTS: 1
REFERENCES: 465
34. A ____ involves developing a clear, concise, and unambiguous statement of the exact problem the software is to solve.
a. problem statement b. design statement
c. program overview d. problem specification
ANSWER: d
POINTS: 1
REFERENCES: 468
35. ____ is the process of translating the detailed designs into computer code.
a. Translating b. Interpreting
c. Coding d. Configuring
ANSWER: c
POINTS: 1
REFERENCES: 469
36. ____ takes place on each module (subtask code) as it is completed.
a. Regression testing b. System testing
c. Unit testing d. Integration testing
ANSWER: c
POINTS: 1
REFERENCES: 471
37. ____ a program means running it on many data sets to be sure its performance falls within required limits.
a. Debugging b. Benchmarking
c. Configuring d. Coding
ANSWER: b
POINTS: 1
REFERENCES: 471
38. ____ includes online tutorials or help systems that the user can bring up while the program is running, and (less often)
written user’s manuals.
a. Technical documentation b. Rough documentation
c. First-level documentation d. User documentation
ANSWER: d
POINTS: 1
REFERENCES: 472
39. Most programming languages are now presented within an ____.
a. Integrated Development Environment
b. Integrated Deployment Environment
Cengage Learning Testing, Powered by Cognero Page 6
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
c. Implementation Development Environment
d. Interactive Development Environment
ANSWER: a
POINTS: 1
REFERENCES: 472-473
40. ____ allows miscommunications between the user and the programmer to be identified and corrected early in the
development process.
a. Rapid deployment b. Rapid configuration
c. Rapid prototyping d. Rapid interfacing
ANSWER: c
POINTS: 1
REFERENCES: 473
41. With regard to imperative languages, what is the programmer's task?
ANSWER: The programmer's task is to devise the appropriate step-by-step sequence of “imperative commands”—
instructions in the programming language—that, when carried out by the computer, accomplish the
desired task.
POINTS: 1
REFERENCES: 439
TOPICS: Critical Thinking
42. What is the purpose of the feasibility study?
ANSWER: The purpose is to make all project stakeholders aware of the costs, risks, and benefits of various
development paths as a guide to deciding on the approach to use.
POINTS: 1
REFERENCES: 467
TOPICS: Critical Thinking
43. Define coding.
ANSWER: Coding is the process of translating the detailed designs into computer code.
POINTS: 1
REFERENCES: 469
TOPICS: Critical Thinking
44. Briefly present the function of the following components of an IDE: text editor, file system, language translator, and
debugger.
ANSWER: Use a text editor to create a program; use a file system to store the program; use a language translator to
translate the program to machine language; and if the program does not work correctly, use a debugger
to help locate the errors.
POINTS: 1
REFERENCES: 472-473
TOPICS: Critical Thinking
45. What is pair programming?
Cengage Learning Testing, Powered by Cognero Page 7
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
ANSWER: Pair programming involves two programmers (students) at a single workstation, with one writing code
and the other actively observing. The observer watches each line of code for possible errors, but also is
thinking about the overall approach, what programs may lie ahead, possibly spotting improvements that
could be made. The roles of the two individuals are switched frequently.
POINTS: 1
REFERENCES: 474
TOPICS: Critical Thinking
46. List four disadvantages of assembly language.
ANSWER: • The programmer must “manually” manage the movement of data items between and among memory
locations and registers (although such data items can be assigned mnemonic names).
• The programmer must take a microscopic view of a task, breaking it down into tiny subtasks at the
level of what is going on in individual memory locations.
• An assembly language program is machine specific.
• Statements are not natural-language-like (although operations are given mnemonic code words as an
improvement over a string of bits).
POINTS: 1
REFERENCES: 437
TOPICS: Critical Thinking
47. List four expectations of a program written in a high-level language.
ANSWER: • The programmer need not manage the details of the movement of data items within memory or pay any
attention to exactly where those items are stored.
• The programmer can take a macroscopic view of tasks, thinking at a higher level of problem solving
(add B and C, and call the result A). The “primitive operations” used as building blocks in algorithm
construction can be larger.
• Programs are portable rather than machine specific.
• Programming statements are closer to natural language and use standard mathematical notation.
POINTS: 1
REFERENCES: 437
TOPICS: Critical Thinking
48. Explain the following statement at length: Programs written in a high-level language will be portable rather than
machine specific.
ANSWER: Program developers use a variety of approaches to make their programs portable to different platforms.
For programs written in most high-level languages, the program developer runs through the complete
translation process to produce an executable module, and it is the executable module that is sold to the
user, who runs it on his or her own machine. The program developer doesn’t usually give the user the
source code to the program, for a multitude of reasons. First, the program developer does not want to
give away the secrets of how the program works by revealing the code to someone who could make a
tiny modification and then sell this “new” program. Second, the program developer wants to prevent the
user from being able to change the code, rendering a perfectly good program useless, and then
complaining that the software is defective. And finally, if the program developer distributes the source
code, then all users must have their own translators to get the executable module needed to run on their
own machines.
The developer can compile the program on any kind of machine as long as there is a compiler on that
machine for the language in which the program is written. However, there must be a compiler for each
Cengage Learning Testing, Powered by Cognero Page 8
Name: Class: Date:
Chapter 09: Introduction to High-Level Language Programming
(high-level language, machine-type) pair. If the program is written in C++, for example, and the program
developer wants to sell his or her program to be used on a variety of computers, he or she needs to
compile the same program on a PC using a C++ compiler for the PC, on a Mac using a C++ compiler for
the Mac, and so on, to produce all the various object code versions. The program itself is independent of
the details of each particular computer’s machine language because each compiler takes care of the
translation. This is the “portability” we seek from high-level language programs.
POINTS: 1
REFERENCES: 455
TOPICS: Critical Thinking
49. Discuss documentation at length, including definitions of all the different types.
ANSWER: Program documentation is all of the written material that makes a program understandable. This includes
internal documentation, which is part of the program code itself. Good internal documentation consists
of choosing meaningful names for program identifiers, using plenty of comments to explain the code,
and separating the program into short modules, each of which does one specific subtask. External
documentation consists of any materials assembled to clarify the program’s design and implementation.
Although we have put this step rather late in the software development process, note that each preceding
step produces some form of documentation. Program documentation goes on throughout the software
development life cycle. The final, finished program documentation is written in two forms. Technical
documentation enables programmers who later have to modify the program to understand the code. Such
information as structure charts or class diagrams, descriptions of algorithms, and program listings fall in
this category. User documentation helps users run the program. Such documentation includes online
tutorials, answers to frequently-asked questions (FAQs), help systems that the user can bring up while
the program is running, and (less often) written user’s manuals.
POINTS: 1
REFERENCES: 471-472
TOPICS: Critical Thinking
50. What question should a feasibility study address, and what are some of the possible answers?
ANSWER: What are the relative costs and benefits of the following choices?
• Buying a new computer system and writing or buying software
• Writing new software for an existing computer system
• Purchasing the needed resources from a “cloud computing” provider
• Outsourcing the work to a contractor
• Revising the current manual process for solving this problem
• Cutting back the scope of the project to better align it with existing resources
• Cancelling the project entirely and doing without the information that would be generated
POINTS: 1
REFERENCES: 467
TOPICS: Critical Thinking
Cengage Learning Testing, Powered by Cognero Page 9
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The Project Gutenberg eBook of The New
Jersey Law Journal, Volume XLV, No. 3, March
1922
This ebook is for the use of anyone anywhere in the United States
and most other parts of the world at no cost and with almost no
restrictions whatsoever. You may copy it, give it away or re-use it
under the terms of the Project Gutenberg License included with this
ebook or online at www.gutenberg.org. If you are not located in the
United States, you will have to check the laws of the country where
you are located before using this eBook.
Title: The New Jersey Law Journal, Volume XLV, No. 3, March 1922
Author: Various
Editor: A. Van Doren Honeyman
Release date: September 15, 2019 [eBook #60300]
Most recently updated: October 17, 2024
Language: English
Credits: Produced by The Online Distributed Proofreading Team at
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*** START OF THE PROJECT GUTENBERG EBOOK THE NEW JERSEY
LAW JOURNAL, VOLUME XLV, NO. 3, MARCH 1922 ***
THE
New Jersey Law Journal
PUBLISHED MONTHLY
VOLUME XLV FEBRUARY, 1922 No. 2
EDITORIAL NOTES.
Happily it is not such a frequent occurrence as may be supposed
that the Judges of our Court of Errors and Appeals split apart so
curiously as they did in determining that the Van Ness Enforcement
Act should be declared unconstitutional. The result only shows that,
like the doctors, Judges cannot all think alike. On the subject of
whether whiskey is useful as a medicine or not our New Jersey
doctors, on a canvass, split, 520 to 308, or 490 to 319, according as
one interprets the replies. In the Nation at large it ran 51 per cent.
to 49 per cent., a closer margin. But only half of those who were
interrogated by the Journal of the American Medical Association
responded; what the rest thought we do not know. So on the legal
questions involved in the Van Ness Act, counting those Judges who
approved the Act as constitutional in the Supreme Court, the
difference between a yea and nay vote appears to have been only
one. On the subject of whether the Act could be sustained because
it took away from defendants the right of trial by jury, which was the
great burden in objections made by defendants themselves, the
Court held what this Journal has held, that the Legislature had the
power to direct that trials might be by magistrates without a jury. It
had done so over and over again in other matters and could do so in
liquor legislation as well. On other points there were various
differences of opinion. However, since the Act as a whole is declared
unconstitutional, on the ground that it does not conform to the
Federal Act, which declares that the illegal possession, sale, etc., of
liquors constitute a crime, instead of disorderliness, the Legislature
has passed new statutes which alter the basis of a conviction from a
disorderly proceeding to a criminal proceeding. There is no hope in
this for bootleggers, except as it permits them to escape by jury
disagreements or not guilty verdicts. If no law were enacted the
Federal Courts would be filled with cases, and the results there
would give no hope to criminals. Generally speaking, the upsetting
of the Van Ness Act is unfortunate, because jury trials are expensive
as well as uncertain; trials before Judges as magistrates are more
certain and far less expensive. In the end, however, bootleggers will
not win in the game.
On the question of the legality of picketing by strikes the
Court of Errors and Appeals of this State also held quite divergent
views, but sustained the Keuffel & Esser injunction granted by Vice-
Chancellor Buchanan against the International Association of
Machinists. The majority decision of the Court was rendered on Jan.
26th, in an opinion by Mr. Justice Swayze. His finding was sustained
by 9 affirmative and 5 negative votes. Besides Justice Swayze, the
members of the Court voting to affirm were Justices Parker, Bergen,
Kalisch and Katzenbach, and Judges White, Williams, Gardner and
Ackerson. Voting to reverse were Chief Justice Gummere, Justices
Trenchard, Minturn and Black and Judge Van Buskirk. The object
of the appeal avowedly is, said Justice Swayze, to secure a
decision as to the legality of picketing when unaccompanied with
violence, molestation of others, annoying language or conduct—in
short, what is sometimes called peaceful picketing. Parading in the
neighborhood of complainants with placards indicating that a strike
is in progress is similar in its legal character to picketing. He then
pointed out that the Court is bound in a measure by the recent
decision of the Supreme Court of the United States in the case of the
American Steel Foundries v. The Tri-City Central Trades Council, in
which Chief Justice Taft wrote an opinion upon the rights of strikers,
both at common law and as governed by the Clayton act. Taking the
Federal decision as a foundation, Justice Swayze said it held the
employer had the right to the access of his employés to his place of
business and of egress therefrom, without intimidation or
obstruction; and the employés, recent or expectant, had the right to
use peaceable and lawful means to induce present employés and
would-be employés to join their ranks. He remarked that the legality
of any particular conduct depends on the facts of the particular case
and that picketing may or may not be lawful, as it has or has not an
immediate tendency to intimidate the other party to the controversy.
Remarking that picketing is illegal if it has an immediate tendency to
obstruct free passage such as the streets afford, consistent with the
rights of others to enjoy the same privilege, Justice Swayze
continued:
Thus men may accost one another with a view of influencing
action, but may not resort to persistence, importunity, following and
dogging. The number of pickets may of itself make the picketing
unlawful, since it may amount to intimidation. Everyone knows that
threats of bodily harm may be made by a mere show of force,
without violence of language or breach of the peace, and that mere
numbers may intimidate. The real question is, Does the conduct
under existing facts amount to intimidation? Twenty-five or fifty
pickets may, when a single picket probably would not. If information
alone were wanted in the pending case, all the information
necessary for the defendants to enable them to prosecute their
efforts to convert the complainants employés would have been
obtained by a few men. The use of twenty-five or fifty or two
hundred, as in fact used, was clearly unnecessary, and could not
have been intended for any lawful purpose. In view of the testimony
as to what actually went on, the Vice-Chancellor properly held that
the conduct of the defendants was an illegal interference with the
complainants property rights.
The opinion noted above is, in the whole, a lengthy one. Judge
White concurred in it in a separate opinion. Justice Minturn filed a
strong dissenting view, taking the ground that the Courts
conclusion served to mark another step in the cycle of judicial
legislation, which, beginning with an appropriate effort to curb
agitation of a forcible character, has concluded with an edict which
will be construed to put an end to peaceable and constitutional
economic agitation. Nothing further, he said, would seem to
be necessary to complete the chaplet of judicial legislation, unless it
be the invocation of the provisions of the statute of laborers (Edward
III.), under the provisions of which the laborer was effectually
conscripted to the service of the master, and to that end was
hounded as a helot, and labeled with the brand of Cain. In every
other walk of life the peaceful activities condemned by these
adjudications are quiescently tolerated, if not approving
recognized.
The cash bonus asked—not asked but demanded in formal
resolutions—by various of the associations of the American Legion
throughout the country, and which has given the present Congress
and the President more concern than almost any domestic subject,
has not struck a responsive chord in the popular ear except from the
soldiers—a minority of them, as we believe—who want it. Every
business man knows it is not the time to pension well soldiers of the
late war further than the States are doing it. We have always
doubted that the best officers and soldiers of the country were
behind the movement. It is to belittle their patriotism to believe that
they desire to foist billions of taxes, direct or indirect, upon their
country at the present moment.
When Senator Edge told an assembly at Atlantic City recently that
the Senate of the United States, of which he is a member, failed
alarmingly in performing its proper duties in a speedy and efficient
manner, he only stated what public opinion has long held. The mere
fact, to which he did not allude however, that a few men can talk
any good project before that body to death, the Senate rules
permitting unlimited debate, has served again and again to prove
the truth of his statements. The House of Representatives, with its
too-many members, is far more reflective of public sentiment than
the Senate, and actually does its work more expeditiously when a
majority of members desire quick action. A reform in the Senate is of
such importance that too much public attention to its improper
methods of carrying on public business cannot be given. The press
of the country should be a unit in demanding a change in methods
and results. The New York Times thinks the trouble is largely
due to the fact that there is a dearth of strong men in the Senate;
that there is no great inducement for a strong man to go to the
Senate as a new member, because he is practically frozen out of
any good committee assignment for a long period of time. It says of
a new member:
What will happen to him when he takes his seat in the Senate?
He will get only insignificant committee appointments. He will be
expected to be silent for at least six months. If he undertakes, as a
new Senator, to impress upon the Senate any positive convictions of
his own, he will be hazed like a college freshman in the effort to
teach him his place. If there is in the Senate a career open to
talent, it is open only after long waiting. In short, the Senate that
now professes an anxiety for the accession of strong men itself puts
formidable obstacles in the way of a strong man. Its rules, as
Senator Wadsworth has just been lamenting, make it almost
impossible to transact business. Its time is mostly taken up by
querulous and ineffective members. Its committees are manned by
the rule of seniority, which too often spells senility. Indeed, about
the only way in which the Senate as it is at present can be said to be
a nursery of political strength is in accordance with the maxim,
Suffer and be strong. A Senator who can survive for a few years the
suffering, mental and moral, which he has to undergo in the Senate,
may emerge into power and influence. But upon the strong man just
arrived the Senate always puts a damper.
Lots of truth in this. Nevertheless, present Senate rules combined
with too much politics and too little statesmanship and business
activity are responsible for a deterioration of the public esteem for
our highest governing body.
Dean Stone of the Columbia University Law School of New York
City in a report to the President of that Institution made recently
sounds a proper warning as to the quality and numbers of young
men crowding into the Bars of many of the States. Among other
things he said:
It may well be doubted whether there is any profession which
makes greater demands than the law on the capacity of its members
for sustained intellectual efforts, their powers of discrimination and
their ability to master detail. Yet, as I have often had occasion to
point out in these reports, increasing numbers of men of mediocre
ability and inadequate preliminary education are being attracted to
the law by the ever-increasing facilities for law study. What, under
the conditions of law study and admission to the Bar of a generation
ago, was a task of magnitude testing the patience, stability,
character and intellectual power of the prospective lawyer to the
utmost may now be performed with relative ease. This is partly
attributable to the multiplication of opportunities for law and study
nicely adapted to the peculiar type of Bar examination prevailing in
most of our States, and partly because Law Schools and Bar
examinations too often place the interests of the individual law
student and sometimes their own interests ahead of the interests of
the profession. It is the duty of Law Schools to dissuade the man of
ordinary ability and meagre education from beginning law study,
and, if he will not be dissuaded, to apply to him standards of
proficiency and attainment worthy of the profession to whose
membership he aspires.
The Washington Conference is over and the results are more than
gratifying. Only the blindest obtuseness on the part of the United
States Senate has prevented early ratification of the various treaties
made by it. The great point gained by this Conference is that it
brought Great Britain, France, Japan, China and five other powers
face to face in friendliest attitude, and this is what should happen
again when occasion calls for it. Every country represented is happy
over the result, and to say that America should be is a truism. It
marked another great event in world history.
Some day perhaps, every moving-picture theatre will have this
description of the art it employs on its front curtain, for is it not the
lucid description recently published in a magazine devoted to the
sublime art of motion-picture writing? And it will be good for
school boys and girls to interpret: The photodramatist enters the
great cosmic drama in keeping with the Infinite Plan; he will be, in
the expanse of days to come, a master of new values in art, science,
philosophy, religion. From the fastnesses of the invisible world of
Thought, fulgurous forces of the very essence of Beauty are
sweeping into his consciousness, attracted by the human desire for
more complete expression.
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 Dodds 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
Dodds 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 Dodds 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 womans 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
Penningtons office and said: Good morning, Governor. Confound
these young fellows! They get all my books away from me. Now
there is Elmers 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 Elmers 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. Choates
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. Websters 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. Choates 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. Days 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. Websters 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 womans 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 visitors 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 Masters report denying The First Peoples Trust
petition for certain property held by the Receiver.
Mr. Harry Green for Exceptants, The First Peoples Trust.
Mr. Barney Larkey for the Receiver.
RELLSTAB, District Judge: The First Peoples Trust excepts to
the Masters 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 bankrupts 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 Peoples
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 bankrupts 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
Peoples 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 sellers property and
interest in the conditional sale agreement and the automobile
mentioned therein, without right of redemption. By this assignment
The Peoples 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
Peoples 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 Peoples 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 Masters 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 bankrupts 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 latters assignment of the conditional sale
agreement, gave it not property or right in the truck as against its
assignee, The First Peoples Trust. Whatever rights such possession
gave it as against the buyer, they were subordinate to the
assignees right of possession on the buyers 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 Masters findings are disapproved, and an order will be
made giving The First Peoples 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 plaintiffs 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 plaintiffs 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 Engineers 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.
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