(118 Me. 339) LOOK v. WATSON. The plaintiff has now amended his writ by striking out the names of R. A. Watson and George Watson and proceeds against (Supreme Judicial Court of Maine. Nov. 22, C. A. Watson alone. Upon a careful consid 1919.) eration of the evidence now presented we 1. PARTNERSHIP 35-ESTOPPEL BY HOLD- have no reason to change our former conING OUT AS PARTNER. Where C. permitted one to deal with "C. & Sons" without informing him that "C. & Sons" was a corporation, and not a partnership, as the name implied, C. is personally liable. 2. FOOD 26-MISBRANDING OF APPLES. clusion. The liability of C. A. Watson is again abundantly shown. [1] But defendant's counsel strenuously insists that the contract to buy apples was made by the plaintiff during the last of October or the 1st of November, 1917; that the apples were bought before the plaintiff ever saw C. A. Watson; that at the only interview between the plaintiff and C. A. Watson the purchase of the apples was not considered, only the shipping of apples already purchased; consequently, counsel says, the plaintiff could not have given credit to C. A. Wat In action for price of apples and for work performed by plaintiff in buying apples for defendant, defendant, claiming a deduction upon ground that the apples were misbranded in violation of Rev. St. c. 36, § 29, has burden of proving that apples were misbranded. 3. FOOD 26-GRADING OF APPLES. Where apples shipped from Maine to Chica-son. This might be material if the name of go were graded according to the Maine standard under Rev. St. c. 36, § 27, buyer who has not specified any quality had no cause of complaint, even if the Maine standard was below the local standard in Chicago. C. A. Watson had not appeared in the business name and style of C. A. Watson & Sons, which now appears to be the name and of an Illinois corporation. Smith v. Hill et al., 45 Vt. 91, 12 Am. Rep. 189. The impor 4. FOOD 26-SUFFICIENCY OF EVIDENCE TO tant facts are that the defendant loaned his SHOW MISBRANDING. In action for price of apples, evidence held insufficient to show that apples were misbranded under Rev. St. c. 36, § 29. name for use in the corporate name of a corporation for which he worked, and which, in some degree at least, he represented. The latter name, C. A. Watson & Sons, "signifies to the ordinary mind, not a corporation, but Report from Supreme Judicial Court, a partnership of which C. A. Watson is a Franklin County. member." The plaintiff dealt with C. A. Action by John H. Look against C. A. Wat- Watson & Sons through their agent. son. Judgment for plaintiff. He bought the apples for C. A. Watson & Sons. He knew C. A. Watson & Sons only as indi Argued before CORNISH, C. J., and HAN-cated by the name. He relied upon that SON, PHILBROOK, DUNN, and DEASY, name, not as the name of a corporation, but, as it appeared, as the name of a partnership; Frank W. Butler, of Farmington, for plain- and neither the agent, J. P. Barrett, if, in JJ. tiff. fact, he knew to the contrary, nor the deElmer E. Richards and S. P. Mills, both of fendant himself, informed him otherwise. Farmington, for defendant. The defendant must be held liable to the [2] The number of barrels stated in the writ, and the price charged therefor, is conceded to be correct. The item of $108.75 for work at Dixfield is not disputed; but defendant claims that the apples did not an MORRILL, J. When this cause was before us on a former occasion (117 Me. 476, 104 Atl. 850), we held that the liability of C. A. Watson was established, applying to this case the principle that "a defendant who holds himself out as a partner is liable to a plaintiff who, believing in and relying upon such partnership, enters into a contract in-swer the description marked upon the barrels, volving the giving of credit to it." This principle, we said, "applies although the defendant is not a partner and notwithstanding that such supposed partnership is in fact, but without the plaintiff's knowledge, a corporation." The exceptions were sustained, however, because the verdict was directed against C. A. Watson, R. A. Watson, and George Watson, and, whatever might be the status of R. A. Watson, the evidence showed that George Watson was not a partner, and failed to show that he held himself out as such. and that they were misbranded in violation of R. S. c. 36, § 29, and he claims a deduction of $237.25. Here the burden is upon the defendant. Lyons v. Jordan, 117 Me. 117, 102 Atl. 976. [3, 4] In the car in question were 182 barrels of apples. The plaintiff says, "They were very nice quality; as good a car as I shipped during the year." The quality of the apples to be furnished by the plaintiff does not appear; hence the only requirement was that they should be merchantable and correctly graded, and the barrels marked as re (108 A.) quired by law. It appears from the testi- | the facts proved by her the responsibility of mony of both Mr. Look and J. P. Barrett, the defendant to answer for such damages the agent of C. A. Watson & Sons, that the consignees had not found fault with previous shipments; Mr. Barrett says, however, that "they said that the Maine standard was below what they expected." The defendant personally directed that the car lot in question should be shipped. When the apples arrived in Chicago eight of the barrels were examined, and those marked No. 1 were graded fair No. 2, and those marked No. 2 were graded fair No. 3. It does not appear that this grading was or was not according to the Maine standard, which calls for fancy, No. 1 or class 1, No. 2 or class 2, and unclassified. R. S. c. 36, § 27. If the apples, when packed, were graded according to the Maine standard, the defendant has no cause of complaint, even if that standard might be below the local standard in the Chicago market. We think that defendant has not sustained the burden of showing that the barrels were misbranded. is shown. At the trial of the case the pre- Viewed in the light most favorable to the plaintiff, the situation disclosed by the evidence was as follows: The city of New Brunswick was in possession of a tract of land adjacent to the Reilly home, which was used by it as a dumping ground for garbage, and had been so used for many years. On January 12, 1914, among other refuse a great number of dry Christmas trees were hauled in the city dump wagons to this ground, and there unloaded, and set fire to by certain city employés. At this time a high wind was blowing, and the sparks blew across the dumping ground and upon the Reilly home, Judgment for the plaintiff for $763.95, with setting fire to it, and partially destroying it. interest from date of writ.. (92 N. J. Law, 547) REILLY v. MAYOR AND COMMON COUN- [1, 2] The common-law rule, with relation to the liability of the occupant of property for a fire communicated from his premises to that of his neighbor, is that he is not to be held responsible therefor, unless he negligently kindles, or negligently guards, the fire upon his own premises. And this rule prevails in our own state. Read v. Pennsylvania R. Co., 44 N. J. Law, 280, 282. (Court of Errors and Appeals of New Jersey. This being so, the liability of the municipaliMarch 3, 1919.) ty must be predicated upon the negligence of its employés either in the kindling or the guarding of the fire in question, and the legal obligation of the municipality to answer for such negligence. The propriety of the judicial action complained of, therefore, must depend upon whether the doctrine of respond745-CITY eat superior applies in a case like that now In the absence of negligence in kindling or guarding a fire, one is not liable at common law for damages done thereby when communicated to adjoining property. 2. MUNICIPAL CORPORATIONS NOT LIABLE FOR NEGLIGENT ACTS OF EM- Though city's employés were negligent in kindling or guarding fire on city dumping ground and sparks set fire to house of plaintiff's intestate, the city is not liable; the doctrine of respondeat superior not applying to municipalities. Appeal from Supreme Court. Action by Elizabeth Reilly, administratrix, against the Mayor and Common Council of the City of New Brunswick. Judgment for defendants, and plaintiff appeals. Affirmed. Edmund A. Hayes and John P. Kirkpatrick, both of New Brunswick, for appellant. GUMMERE, C. J. The plaintiff sued to recover damages for the partial destruction of her intestate's residence (during his lifetime) by a fire, her claim being that under before us; for, if it does apply, then certainly the proof in the case entitled the plaintiff to go to the jury on the question of the existence, or nonexistence, of negligence on the part of the city's employés, and whether it was the natural and proximate cause of the burning of her decedent's home. This question received careful consideration at the hands of this court in the case of City of Paterson v. Erie R. Co., 78 N. J. Law, 592, 75 Atl. 922, 30 L. R. A. (N. S.) 209, and the matter was thus dealt with by us: "Municipal corporations are engaged in the performance of public services in which they have no particular interest, and from which they derive no special benefit in their corporate capacity. The persons employed by them in the rendering of such service act as public servants charged with a public duty. They are mere agencies, or instrumentalities, by which such duties are performed, and the doctrine of respondeat superior does not apply to such employment." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The concrete principle established by this and like decisions is that "Negligence in the performance of public duties by municipal agents, or instrumentalities intrusted therewith, is not chargeable against the municipality." The application of this principle led us to hold that the city of Paterson was entitled to recover from the Erie Railroad Company for an injury done to one of the city's fire engines in a collision between it and a railroad train of the defendant, which occurred through the joint negligence of the persons operating the train, and the driver of the engine. The same principle was applied by us in the earlier case of Condict v. Jersey City, 46 N. J. Law, 157. In that case the suit was brought to recover damages for the death of the plaintiff's intestate, caused by the negligence of an employé of the city whose business it was to haul ashes from in front of the residences of the inhabitants of the municipality to the city's dumping ground, and there empty his cart. The death of the decedent was caused by the negligence of this employé in emptying the cart. We said in that case: "In the execution of the duties of a municipal government the services of inferior officers having only ministerial duties to perform, and of workmen and other employés, are required for the transaction of its business; and * with respect to such officers and employés the doctrine of respondeat superior does not apply." (92 N. J. Law, 307) STATE V. COLGAN. (Supreme Court of New Jersey, Feb. 18, 1919.) 1. INDICTMENT AND INFORMATION 52(2)— CONVICTION BASED ON INSUFFICIENT COMPLAINT WILL BE SET ASIDE. Where it satisfactorily appears that the name of the clerk of the trial court, subscribed to the jurat to the complaint, was not signed by him, but by his assistant in his absence, and that the clerk himself was not present when the complaint was signed, conviction will be set aside; the proceedings being without legal foundation. 2. DISORDERLY CONDUCT 1-A SALOON IS NOT A "PUBLIC PLACE" WITHIN STATUTE. A saloon is not a "public place" within Disorderly Persons Act, § 3, as amended by Laws 1912, P. L. 161, relating to loitering or assembling in public places, and there using indecent or offensive language. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Place.] Thomas J. Colgan was convicted of being a disorderly person, and brings certiorari. Conviction set aside. Before PARKER and MINTURN, JJ. Herbert Clark Gilson, of Jersey City, for prosecutor. Charles M. Egan, of Jersey City, for respondent. PARKER, J. Prosecutor was convicted of being a disorderly person within the intent and meaning of sections 1 and 3 of the Disorderly Persons Act of 1898. Comp. Stat. p. 1926. Section 1 need not be quoted here; it suffices to say that there was nothing either alleged in the complaint or appearing on the evidence at the trial to bring prosecutor within that section. Section 3 is that relating to loitering or assembling in public places, and there using indecent or offensive language. As formerly in force, it is quoted in Cowell v. State, 63 N. J. Law, 523, 43 Atl. 436. The section was amended in 1912. Pamph. L. p. 161. By the charter of New Brunswick it is made the duty of the street commissioner to cause the streets to be properly cleaned, and to be kept clean and in good repair. He is put in charge of the collection of all ashes, garbage, refuse, and other material, and is authorized to employ, by and under the direction of common council, the necessary force of workmen or laborers to properly collect and dispose of all such ashes, garbage, refuse, and other material. The dumping ground is, of course, necessary for the proper performance of the duty thus imposed, and the destruction by fire or otherwise of material that may be thus disposed of is reasonably necessary in order to prevent the dumping ground from becoming [1] First. It satisfactorily appears that overcrowded and thus useless for the purpose the name of the clerk of the trial court, subto which it is devoted. Plainly, therefore, scribed to the jurat to the complaint, was not the employés of the city whose negligence is signed by him, but by his assistant in his said to have been responsible for the injury absence, and that the clerk himself was not to the Reilly home were engaged in the present when the complaint was signed, and transaction of public business of the munici- did not take the affidavit. Consequently, pality, and, consequently, the defendant is not so far as appears, the proceeding was withlegally responsible for the careless perform-out legal foundation. When a complaint is ance of their duty. We conclude, on examination of the case and briefs, that the conviction must be set aside on two grounds: made it should be on oath or affirmation. The judgment under review will be af- Preusser v. Cass, 54 N. J. Law, 532, 24 Atl firmed. 480. Second. The complaint as drawn charged 14. JUDGMENT the uttering of loud and offensive and indecent language at two specified street corners. It was "amended" at the trial so as to allege, and evidence taken to prove, that the language charged was uttered not on street corners, but in two saloons. ACTUALLY NOT COUNTED ON RES In order to raise estoppel by judgment, it is not necessary that the pleadings in first suit should have counted on the precise false representations set up as the cause of action in second, it being enough if the matter was triable in the first suit, and was actually litigated and adjudicated. 5. JUDGMENT 714(2)—TEST OF IDENTIFICATION OF CAUSE OF ACTION. A test of the identification of the cause of action is, would the evidence adequate to recovery in the second have been sufficient to support the first? 6. INJUNCTION 26(5)-RESTRAINING SUCCESSIVE ACTION AT LAW ON PLEA OF RES JUDICATA, [2] It is plain that a saloon is not a street or a street corner. Prosecutor claims that it is not a public place within the intendment of the statute, and we think the point well taken. It was so held by Judge (afterwards Justice) Fort, in State v. Lynch, 23 N. J. L. J. 45, and his reading of the act is supported by the later amendment of 1912, supra, which adds railroad trains, trolley cars, and other public conveyances to the places where the utterance of such language subjects the offender to the penalties of the act. The amendment dealt also with the loitering feature discussed in Cowell v. State, supra, but that is not material in this case. What is material is that a saloon is not a public place within the meaning of the stat-7. JUDGMENT 713(1) — CONCLUSIVENESS IN ute, and hence the utterance of loud or offensive language therein will not bring the speaker within the denunciation of the act. While res adjudicata by a decree in equity is pleadable in an action at law, the party holding the decree is not driven to that defense, but may proceed in equity to restrain the action at law. SUIT TO RESCIND SALE OF LAND. A decree denying relief to a vendor who filed bill to rescind, because the purchaser had parted with the land to a bona fide purchaser, and also because there was no fraud, is res adjudicata on the issue of fraud as well as the issue of bona fide purchaser, there being no want of jurisdiction to determine the issue of fraud, though for the other reason belief could not be given, jurisdiction and exercise of jurisdiction being distinguishable. Suit by George W. Sarson against Carmelia Maccia. Decree for complainant. Joseph M. Roseberry, of Belvidere, for complainant. Charles C. Giffoniello, of Newark, for defendant. BACKES, V. C. [1] The complainant seeks to restrain the defendant from prosecuting her action in the Supreme Court to recover damages for an alleged deceit, on the ground that the cause of action has been determined by this court on its merits, adversely to the defendant, and is res adjudicata. The defendant sold to the complainant her property in Newark, and took in payment $1,100 in cash, a promissory note of one Park for $800, and a certain mortgage of $1,500. 2. CANCELLATION OF INSTRUMENTS 4-RE- The mortgage was a second mortgage, and LIEF FROM FALSE REPRESENTATIONS HONEST- Equity in certain cases grants relief if the representation be false in fact, even though not consciously made to defraud. 3. FRAUD 4, 13(2)-ACTION FOR DECEIT; KNOWLEDGE AND FRAUDULENT INTENT. To sustain action for deceit, the representation must be shown to have been not only false in fact, but known to be false and made with fraudulent intent. was barred and wiped out by a foreclosure sale under the first mortgage shortly after the deal was consummated. The defendant in her suit at law alleges that the mortgage was worthless, and that the complainant, knowing it to be so, with intent to cheat and defraud her, falsely represented it to be "a gilt-edged security" for $1,500, and that by reason of such false representation she was induced to part with her property. In a former suit in this court for a re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes And in conclusion he said: "The suit must fail for three reasons: First, for the reason that there is no proof that at the time when Mr. Sarson handed over these two securities he knew they were worthless; second, for the reason that Mr. Benker is not shown to have been other than a bona fide purchaser for value, without notice; and, third, for the reason that whatever action the parties might have maintained in February or March they lost by not beginning proceedings until the following August." The first of these reasons necessarily implies the decision, in the light of what had already been said, that Mr. Sarson did not misrepresent the second mortgage; for, had misrepresentation been established, his knowledge of its untruth would have been immaterial in equity. scission of the contract and restoration of her, the time when he turned them over he knew property, the defendant by her bill alleged, them to be worthless. On the contrary, the after stating events leading up to it, that the evidence seems to be that he supposed them to complainant represented to her that the sec- be good. I cannot believe that any man in his ond mortgage was second only to a first mort- senses would knowingly buy at their face value, gage of $5,000, held by a building and loan securities when he knew them to be bad. So it seems to me that the very foundation of the association, and the installments and inter-case fails on this vital question." est thereon were paid up to date; that the promissory note was good, and the maker was the owner of several pieces of real estate in Essex and Union counties, and was financially able to pay it; that in truth the installments and interest on the first mortgage were then greatly in arrears, and the mortgage was under foreclosure; that the maker of the note was an absconder and heavily indebted; that the note and second mortgage were worthless; and that the complainant, well knowing that the representations made by him were false and fraudulent, did by his deceit, connivance, and fraud, induce the defendant to part with her property without his paying her a fair, bona fide, and valid consideration. Issue was taken on the charges of fraudulent representations, and the cause came before Vice Chancellor Stevens for trial. He dismissed the bill after a hearing, reciting in the decree of dismissal that no misrepresentations had been made nor fraud practiced upon the defendant by the complainant. While the bill did not specifically set up the cause of action now alleged in the suit at law, viz. that the complainant, with intent to cheat and defraud the defendant, falsely represented the second mortgage to be a gilt-edged security for $1,500, it is clear that it was one of the issues tried, and was treated by the Vice Chancellor as raised by the pleadings, and that the decree of dismissal turned upon its decision. Counsel has furnished a transcript of only a portion of the testimony and the Vice Chancellor's oral conclusions; but from the little before me, and the opinion, it is plainly to be seen that the transaction in all its details was laid before the court; that the question of fraudulent representation was uppermost; and that the case was decided upon its merits. In the opinion, after reciting the history of the negotiations for the properties, the Vice the nature of the relief. In the former, had Chancellor said: "The charge of the bill is that the fifteen hundred dollar mortgage and the Park note were worthless to the knowledge of Mr. Sarson, and that he fraudulently transferred what he knew to be worthless securities, representing that they were good. That is the allegation of the bill, and the whole case, as I understand it, turns upon the proof of that allegation." After a discussion of the testimony bearing upon this point, he continued: [2] Equity grants relief if the representation be false in fact, even though not consciously made to defraud. Du Bois v. Nugent, 69 N. J. Eq. 145, 60 Atl. 339. To sustain an action for deceit, the representation must be shown to have been not only false in fact, but known to be false, and made with fraudulent intent. Cowley v. Smith, 46 N. J. Law, 380, 50 Am. Rep. 432. The second disposed of the charge that Benker, to whom Sarson had conveyed the property acquired from the defendant, took with notice of the alleged fraud, adversely to the defendant. And the third held the defendant to be in laches. The record of the case exhibits beyond question all the essential elements of a plea of res adjudicata-the identity of the parties, the cause of action, and the subject-matter. The only difference between the suit in equity, decided, and the action at law, pending, is the forum, the form of the remedy, and the defendant been successful, the recovery [3] Nor, in order to raise the estoppel, is it necessary that the pleadings in the first suit should have counted upon the precise false representations set up as the cause for action in the second. It is enough if the matter was triable in the first suit, and that it was actually litigated and adjudicated. Here the same misrepresentation forms the basis of each suit, and the primary inquiry, vital “As I said before, the whole case turns upon the question whether or not Mr. Sarson, at the time when he handed over these securities, represented, either by word of mouth or otherwise, they were good, when he knew them to be to a recovery in either, is, was the mortgage |