itors to bring their claims against the estate within a certain time. Section 70 (page 740) bars a claim not made within that time, and section 71 (page 740) provides that the executor may give written notice that the claim is disputed, when the creditor must commence suit thereon within three months from such notice, or the claim will be barred. Complainant's claim for money loaned her husband during his lifetime was disputed by the executor, and suit was not brought thereon within three months. Held, that the purpose of the statutes being to effect a speedy settlement of estates, section 71 applied, as a general rule, to suits in equity, as well as legal actions, and complainant's suit, having been brought in equity only because of the relationship when the debt was created, was barred by her failure to bring it within the required time.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 1758; Dec. Dig. 437.*]

2. WORDS AND PHRASES-“SUIT.”

The term "suit," though frequently used to include both actions at law and suits in equity, is more appropriately applied to the latter.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 7, pp. 6769-6778; vol. 8, p. 7809.]

Suit by Elizabeth Mathis against Charles R. Stevenson as executor of William Mathis, deceased. Decree for defendant.

The bill is filed by a widow against the executor of her deceased husband, to recover money alleged to have been loaned by her to her husband in his lifetime.

The plea asserts that complainant presented her said claim, in writing, to defendant, and that defendant gave notice, in writing, to complainant that her claim was disputed, and that this suit was not brought until after the expiration of three months from the time of the giving of such notice, and that the surrogate has, by final decree, ordered that all creditors of defendant's testator who have not brought in their claims shall be barred from any action therefor against defendant.

The plea has been set down for hearing to determine its sufficiency as a bar to recovery. Thompson & Cole, for complainant. French & Richards, for defendant.

LEAMING, V. C. (after stating the facts as above). It is contended, in behalf of complainant, that the provisions of our statute barring claims against executors do not contemplate claims of the nature of the present one, over which a court of law cannot take jurisdiction. I am unable to reach that conclusion. While a court of law will not entertain jurisdiction over an action by a wife against her husband, or of a widow against her deceased husband's executor, for a debt due from the husband to the wife, the jurisdiction of a court of equity to maintain such a suit has long been recognized; and I find nothing in either the terms or the policy of our statute barring claims against executors which indicates that the statute relates alone

to actions at law. Section 67, Orphans' Court Act (Act June 14, 1898 [P. L. 1898, p. 738]), requires "creditors of the decedent to bring in their debts, demands and claims against his estate" within the time therein specified. Section 70 provides for a final decree barring a creditor who has not brought in his claim within the time limited, and enacts that such creditor "shall, by such decree, be forever barred of his or her action therefor against such executor." Section 71 provides that when a claim is presented the executor may in writing give notice that the claim is disputed, and in such case "such creditor shall bring suit therefor in three months from the time of giving such notice; and in any suit not commenced within said time, said decree shall bar any recovery of the account or part so disputed, as if said debt or claim had not been presented within the time so limited by the court." It will be observed, by reference to the provisions of the statute above quoted, that the terms of the statute clearly include any debt of the deceased, without limitation as to the court where such debt must be recovered. The requirement that "suit" shall be commenced within three months from the time the claim is disputed contains no suggestion that an action at law is alone contemplated. The term "suit" though frequently used to include an action in a court of law, as well as a suit in a court of equity, is more appropriately applied alone to the latter. See Black's Law Dictionary, title "Suit." The well-recognized spirit and purpose of the provisions of the statute under consideration also indicate that the intention of its framers was to require a creditor to litigate a claim for the recovery of an alleged indebtedness of deceased, within the time specified, without limitation as to the court in which such claim of indebtedness should be appropriately asserted. It has been repeatedly held that the general purpose of the statute is to effect a speedy settlement of estates of deceased persons. Newbold v. Fennimore, 53 N. J. Law, 307, 309, 21 Atl. 939; Emson v. Allen, 62 N. J. Law, 491, 493, 41 Atl. 703; Simons v. Forster, 73 N. J. Law, 338, 341, 63 Atl. 858. With such general legislative purpose in view no reason suggests itself why the statutory requirement should not be held to include suits in equity as well as action at law.

I have not undertaken to inquire whether it may not be possible for some class of equitable claims to arise against the estate of a deceased person, the assertion of which may not fall within the provisions of the act. But where, as here, the claim is for the recovery of a debt arising from money loaned by a wife to her husband, and the assertion of the claim falls within the jurisdiction of the court of chancery only because the indebtedness arose at a time when the relationship

of husband and wife existed, I am entirely clear that both the terms and spirit of the act must be held to include such a claim. I will advise an order sustaining the plea.

(76 N. J. L. 735) KINNEY V. PHILADELPHIA WATCH CASE CO.

(Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. CONTRACTS_(§ 323*) — ACTIONS QUESTIONS FOR JURY-PERFORMANCE.

Whether a contract has been performed is a jury question, if there is evidence from which it might properly infer that the plaintiff had performed its agreement in substantial compliance with its terms.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1543-1548; Dec. Dig. § 323.*] 2. EVIDENCE (§ 546*)-APPEAL AND ERROR (§ 971*)-OPINION EVIDENCE-EXPERTS-QUALIFICATION-REVIEW-DISCRETION OF COURT. The qualification of an expert witness rests largely within the discretion of the trial court, and its finding will not be reviewed on writ of error, if there be legal evidence before the trial court to justify its finding.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 8 2363; Dec. Dig. $ 546;* Appeal and Error, Cent. Dig. § 3852; Dec. Dig. § 971.*]

B. CONTRACTS (§ 349*)-ACTIONS-EVIDENCEADMISSIBILITY.

The defendant introduced in evidence a letter, written by it to the plaintiff, complaining that a chimney erected by plaintiff for defendant was defective, and the plaintiff replied, by letter, that he was willing to repair any defects in the chimney which might be pointed out. To this no reply was made, nor opportunity afforded the plaintiff to make any repairs; but the defendant proceeded to demolish the chimney, although the contract between the parties required the plaintiff to repair, free of charge, during a period of five years, any defects. Held, that plaintiff's letter was not incompetent, immaterial. or irrelevant on the question of the substantial performance of its contract by the plaintiff.

[Ed. Note. For other cases, see Contracts, Dec. Dig. 349.*]

4. APPEAL AND ERROR (8 1047*) - HARMLESS ERROR-WITHDRAWAL OF EVIDENCE.

The plaintiff offered a letter, written by it, which was admitted in evidence over defendant's objection. At the close of the case plaintiff moved for permission to withdraw the letter which was granted. Held, that the defendant suffered no injury from this proceeding; for if the letter was properly admitted, and the defendant desired that it remain in evidence, it had the right to offer it on its own behalf, which it neglected to do.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1047.*]

Parker, Vredenburgh, Green, and Gray, JJ., dissenting.

(Syllabus by the Court.)

Error to Supreme Court.

Action by George H. Kinney against the Philadelphia Watch Case Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Gaskill & Gaskill, for plaintiff in error. Wilson, Carr & Stackhouse, for defendant in

error.

BERGEN, J. The Weber Steel Concrete Chimney Company contracted to build a factory chimney for the Philadelphia Watch Case Company, the agreed price being $4,500, of which $1,500 was paid during construction; and this suit was brought to recover the residue, payment having been refused because, as defendant claims, the work had not been performed in substantial compliance with the contract. The plaintiff sues as assignee of the Weber Company. At the close of the plaintiff's case defendant moved for a direction in its favor for $1,500, the amount paid on the contract price, upon the ground that the plaintiff had not shown that the contract had been performed or the chimney constructed in a "first-class and workmanlike manner," and also that the construction had not been approved and accepted by Dr. Drysdale, as defendant insists is required by the contract. This motion was refused, an exception taken, and error assigned thereon.

On the question of performance there was evidence from which a jury might properly infer that the work had been done in a firstclass and workmanlike manner, substantially as required by the contract, and therefore a question of fact for the determination of a jury was presented. On the other point, viz., that the character of the work was subject to the approval of Dr. Drysdale, it appears that the Weber Company submitted a proposal and specifications containing a statement of the materials to be used and the character of the proposed work. Below the signature of the Weber Company to the proposal and specifications there appears the following: "Subject to the approval and acceptance of Dr. W. A. Drysdale"-and at the beginning thereof: "Approved August 17, '06. W. A. Drysdale." It is admitted that Dr. Drysdale did approve the proposal and specifications, and the record shows that the approval bears the same date as that on. which the proposal was submitted. We are satisfied that the approval required related to the form, and not to the fulfillment, of the proposal and specifications. This view is supported by the fact that the approval as to form was obtained before the proposal was submitted, and also a part payment was made by the defendant without any approval of the work, as it is now contended by the defendant the contract required. In addition to this, the defendant, in a letter addressed to the Weber Company, dated December 8, 1906, said that, as a condition of acceptance, it "would require the chimney to be approved by an expert of our own selection," which would not be necessary if it had already contracted for the approval of Dr. Drysdale. The motion for direction was not renewed

after the entire case was closed, and defendant relies upon the alleged error in refusing to take the case from the jury when the plaintiff rested. We find no error in the refusal to which the exceptions on this point are directed.

The defendant also assigns error on exceptions relating to the admission of expert testimony. We have carefully examined the proofs relating to the qualifications of the expert witnesses, and are. of opinion that there was sufficient legal evidence to justify the finding of the trial court that the witnesses had the necessary experience to qualify them to give an expert opinion. The qualification of an expert is to be determined by the trial court as a question of fact, and its conclusion will not be disturbed on error, if there be legal evidence to support the finding that a witness has the necessary experience to qualify him to give opinion evidence. Mr. Justice Dixon, in speaking for this court in Convery v. Conger, 53 N. J. Law, 468-476, 22 Atl. 43, 549, regarding the exercise of such a discretion, quoted with approval from Bacon v. Williams, 13 Gray (Mass.) 525, that "this court would be slow to revise a ruling on such a question, unless the error was very plain and palpable."

Two letters were admitted in evidence over objection by the defendant-one dated February 7, 1907, which it is admitted was prior to, and the other April 26, 1907, after, the commencement of this suit. Both letters were written by the attorneys of the Weber Company to the defendant, but no objection to their admission was rested upon any lack of authority in the attorneys to act for the Weber Company in making the offer to repair, as expressed in the letters. The letter of February 7, 1907, has not been printed as a part of the case prepared by the plaintiff in error, and we have no knowledge of its contents beyond that disclosed by counsel when he offered it in evidence, which was that it contained an offer, on the part of the Weber Company, to repair any defects in the chimney which were pointed out, or to be pointed out, and a request that, if any existed, an opportunity be given to repair the same. The objection to its admission was that it was incompetent, immaterial, and irrelevant to the issue; but no objection was made that the contents of the letter was other than as stated, and if the defendant wished to rely upon any other matter it should have printed the exhibit as a part of the record. The case shows that the defendant had previously written to the Weber Company that the construction of the chimney was defective, and, if it should conclude to accept it, that it would not do so unless it was furnished with a bond to indemnify it against any loss it might sustain by reason of the chimney not being properly erected, and that it would in any event require the chimney to be approved by an ex

fact that the defendant had offered this letter in evidence, which contained a general complaint of the character of the work, we can see no reason why it was not competent for the plaintiff, in rebuttal, to show that it had notified the defendant that it would repair any defects that might be pointed out. Its contract required it to repair, free of charge, for a period of five years, any defective material or workmanship; and it was manifestly proper that it should have pointed out to it the defects complained of, and be afforded an opportunity to remedy them before the defendant was justified in tearing down and destroying the chimney, as it afterwards did.

In the letter of April 26, 1907, sent to defendant after suit was commenced, the Weber Company, after stating that, although its engineer had reported to it that the chimney conformed to the specifications, yet, as the defendant contended that the lower ring of the chimney was soft, and in consequence rendered unstable, offered to renew this section, and inquired whether the defendant was willing to permit the chimney company to replace the ring. After counsel had closed their argument to the jury the plaintiff asked permission to withdraw the letter, and to have the jury instructed that they should disregard it. This was permitted, and an exception taken to such ruling. If it be conIceded that the admission of the letter was an error, it worked no injury to the defendant; for the same offer to repair was contained in the letter of February 7, 1907, and in addition to the offer it contained a notice that if the property was destroyed, which defendant threatened, it would be held liable for the loss which the Weber Company might sustain thereby. It appeared that defendant had taken down the chimney, after suit was brought and before the trial, in disregard of the notice. In offering to withdraw the letter from the consideration of the jury, the plaintiff was endeavoring to cure any error arising from its admission, a proceeding to which the defendant objected, upon the ground that, the letter having been admitted and read to the jury, it was entitled to have it remain as an exhibit in the cause, although it was, as it claims, irrelevant and immaterial. It is a sufficient answer to this objection to say that, if the defendant was injured or prejudiced by the withdrawal of the letter, it was within its discretion to immediately offer it on its own behalf, and, if the offer had been refused, an exception to such ruling could have been taken. The defendant did not do this, but chose to stand on the alleged erroneous ruling of the court in permitting the plaintiff to withdraw the letter. We are of opinion that the record discloses no error on this branch of the case.

Error was also assigned on that part of the charge to the jury which instructed them

plaintiff a reasonable opportunity to repair any defects, and if such defects could have been remedied within a reasonable time, and without loss to the defendant, it had no right to demolish the chimney without affording | such opportunity. We find no error in this, for by the contract the Weber Company agreed to repair any defects, and certainly the defendant was bound to afford it an opportunity to do so within a reasonable time after they were discovered.

We have considered the other assignments of error presented for consideration, and do not find in any of them any legal justification for a reversal.

The judgment below is affirmed.

PARKER, VREDENBURGH, GREEN, and GRAY. JJ., dissent.

176 N. J. L. 795)

BROWN et al. v. NEW JERSEY SHORT LINE R. CO. (two cases).

(Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. EVIDENCE (8 546*) - OPINION EVIDENCE VALUE OF LAND.

Upon the trial of issues embracing the market value of land taken under condemnation proceedings for the use of a railroad, it is within the discretion of the trial court to admit in evidence opinions of witnesses as experts upon such value, if it appears from their preliminary examination before the court, they have acquired some special knowledge of that subject from sales of other land when made under conditions disclosed in the following opinion.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 2363; Dec. Dig. 546.*]

2. EMINENT DOMAIN (8 201*)-EVIDENCE (8 142*)-PROCEEDINGS TO CONDEMN-ADMISSIBILITY OF EVIDENCE.

The exclusion by the trial court of an offer in evidence of a map of the geological survey of New Jersey, where such offer is limited to the purpose of illustration only, does not constitute error; nor was it error for the court, acting within the range of its legal discretion in such matter, to reject offers to prove prices paid by the condemning company for other fands purchased by it (following Laing v. N. J. R. R. & C. Co., 54 N. J. Law, 576, 25 Atl. 409, 33 Am. St. Rep. 682).

[Ed. Note-For other cases, see Eminent Domain, Cent. Dig. § 5401%; Dec. Dig. 8 201 Ev idence, Cent. Dig. §§ 416-420; Dec. Dig. § 142.*] (Syllabus by the Court.)

tried below together, and argued by briefs before us, present the same questions for decision, and require but one opinion. The principal errors alleged by the railroad com. pany, the plaintiff in error, relate to the conduct of the trial in the admission of certain opinion evidence of witnesses, offered by the appealing landowners, to prove the market value of the strip of land sought to be condemned for the uses of the company. In the exercise of the discretion vested in the trial judge he allowed certain witnesses to express before the jury, after preliminary examination of their fitness therein, their expert opinions of the value of this land. The undoubted rule of law regulating this judicial discretion is that, while it is very broad, it is not unlimited-to adopt the language of the courts of review in the cases cited below-unless this action of the trial court in deciding this preliminary question is "clearly shown to be erroneous in matter of law," or, more precisely speaking, if there is "any legal evidence" to support such determination, it will not be deemed sufficient ground for reversal. State v. Arthur, 70 N. J. Law, 426, 57 Atl. 156; Riley v. Camden and Trenton Ry. Co., 70 N. J. Law, 289, 57 Atl. 445; Stephen's Dig. of L. of Ev. (1904) 277; New Jersey Zinc Co. v. Lehigh Zinc Co., 59 N. J. Law, 189, 35 Atl. 915.

In deciding this narrow question it will answer, I think, all present necessities to consider the voluminous testimony of these witnesses in bulk, and not in detail, and only so far as it bears upon their special experience and knowledge, acquired through previous sales and purchases of other similar lands in the vicinity of the land in question. Whether such other lands were sufficiently like the land taken, and such sales were sufficiently near in point of time and vicinage to qualify opinion evidence as to value, was, under the authorities, also very largely within the range of the discretion of the trial court. These hold that a wide discretion should be given the trial judge in determining whether the conditions are such as readily to admit of reasonable comparison between the land taken and the lands so sold. Laing v. United N. J. R. & C. Co., 54 N. J. Law, 576, 25 Atl. 409, 33 Am. St. Rep. 682; Shattuck v. Stoneham Branch Railroad, 6 Allen (Mass.) 115. Evidently, in view of these authorities, the most material circumstance forming this qualification of expert witnesses as to land values consists of the fact, either that they have themselves made sales or purchases of other similar lands in the neighborhood of the land in question within re cent periods, or that they had knowledge of such sales by others. How recent the occurrence of such sales, in point of time, and how near in location, and how nearly similar in comparison must, of course, vary with

the circumstances of each case, and it is therefore impossible to define a general rule applicable to all cases. Yet, there are cases which afford some definite guide as to such time, distance, and similarity. For instance, in Benham v. Dunbar, reported in 103 Mass. 365, upon a petition, under a statute, for a jury to assess the value of a lot of land to be taken for public uses on an island in Boston Harbor, it was held, upon error, by the Massachusetts Supreme Court, that the admission of evidence of the price of other similar lands sold at different times from eight years to one year before, and distant from a half of mile to six miles, was not erroneous after the introduction of testimony (without objection) tending to show such similarity. An examination of the evidence in the case at bar shows, beyond room for controversy, I think, some knowledge, on the part of all these witnesses, of sales of lots and portions of lands similar to and in the immediate neighborhood of the condemned land. Turning to the evidence in the record here to ascertain with more precision the application of these general terms to the case in hand, we find that it appeared that all of these sold lots and parcels of land were located within a radius of, at most, two miles (and nearly all of them within a much less distance) from the land in question, and that in point of time the sales testified to had all taken place within a period of at most three years from the date of the giving of the testimony, except that in the instance given by the real estate agent, Ashley, a period of five or six years had intervened. It is therefore apparent that some special experience in real estate values had been acquired by each of these persons sufficient, we think, to justify the judicial action below, the weight of the opinion testimony being left, of course, to the admeasurement of the jury.

The other assigned errors demand but brief comment. The admission in evidence of the answer of the respondent's witness Kelly was, if erroneous, rendered harmless by the action of the court in striking the answer from the record, before the close of the trial, upon the motion of the counsel of the plaintiff in error. The exclusion by the trial court of the offer in evidence by the plaintiff in error of the map of the geological survey of New Jersey is next assigned for error. But that offer was expressly confined by counsel, to use his words, "for the purpose of illustration." It was not introduced to contradict any facts previously put in evidence by the defendants in error, nor to meet nor controvert any issue presented for trial, and its materiality, if any, to the controversy is not manifest. In the brief of counsel it is said that it was admissible to show "town boundaries," and "the relative location of Port Reading, Cartaret." etc., but of these statutory boundaries and gen

bound to take judicial notice without evidence.

The seventeenth and eighteenth assignments of error challenge the court's refusal to permit one of the witnesses, called by the railroad company, to state the prices paid by him, the president of the company, in acquiring certain rights of way for the company in the neighborhood of the land in question. In the case of Laing v. United N. J. R. R. & C. Co., supra, it was held that testimony as to the price paid by the company to other owners for land and damages was inadmissible under the circumstances presented in that case, and it was there stated in the opinion of this court (page 579 of 54 N. J. Law, page 410 of 25 Atl. [33 Am. St. Rep. 682]) that testimony as to the price paid by the company to other owners of land is received only upon the idea that there is "substantial similarity" between the land in question and the other land previously ac quired by the company, and that "the prac tice does not extend, and the rule should not be applied, to cases where the conditions are so dissimilar as not easily to admit of reasonable comparison," and that "much must be left to the discretion of the trial judge in the determination of the preliminary question whether the conditions are fairly comparable." Upon examining the record before us as to the conditions appearing before the trial court when it excluded this testimony, we find that the prices sought to be put in evidence were paid by the railroad company for these rights of way as a whole, nothing being made to appear in the testimony showing what part of the total sum paid was applicable to the value of the land taken, nor what portion thereof was assignable to the satisfaction of the damages resulting to the vendor's adjoining land from such taking. There was thus an entire absence of proof as to this important condition. The trial judge could not form, from the prices referred to, any reasonable test or comparison by which the value of the land alone could be compared with, or measured by, the value of the rights of way previously purchased by the company. The discretion of the trial court in excluding the proffered evidence was, we think, properly exercised.

The last contention is that the court erred in refusing to permit the same witness to detail an alleged conversation between him and one of the owners of the land in controversy. The pertinency of such conversation is, in the brief of counsel for the plaintiff in error, attempted to be explained thus: "The testimony of the witness shows that the defendant's right of way across the plaintiff's land was located where it was located in consequence of a conversation with the said William M. Brown, one of the plaintiffs, and the inference may well be drawn that the conversation would show some admission as to the damage done by