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do the act in question.” It will be noticed stated that “an act done by the servant while that the act must be done by the one for the engaged in the work of his master may be enother. That was not so in the case at bar, tirely disconnected therefrom, done not as a and so there was no evidence upon which to i means or for the purpose of performing that find the existence of the relation if the work, but solely for the accomplishment of daughter was not doing an act for her fa- the independent

purpose of the ther. She was not even driving other mem- servant. Such an act is not as a matter of bers of the family. She was using the ma- fact the act of the master in any sense, and chine as a means of recreation and pleasure should not be deemed to be so as a matter of for herself and her own friends, and it would law. As to it, the relation of master and seem impossible to draw the conclusion that servant does not exist between the parties, she could be regarded as the agent or serv- and for the injury resulting to a third person ant of her father upon that occasion.

from it the servant alone should be held reBut there is still another ground. Assum- sponsible.” In that case the defendant's son ing that the relation of master and servant had been intrusted with a garden hose with existed generally between the father and which to sprinkle his father's lawn, and daughter, yet it does not appear in this case while so engaged deliberately turned the wathat on the occasion in question she was act- ter upon a horse, frightening him, causing ing as such servant within the scope of her the injury complained of and for which the employment. That the master is responsible father had been sued. The court then said: for the negligence of his servant when acting “The fact that he (the son] used the tool supwithin the scope of his employment is ele- plied to him for the doing of his father's mentary law, but that he is not responsible work for the accomplishment of his own if the negligence was committed by the sery- mischievous purpose did not make it an act ant when engaged in some private matter of within the scope of his employment, and did his own is equally elementary. These two not render the defendant liable for the inpropositions are well stated in two New York jury resulting therefrom.” While in that

King v. N. Y. C. & H. R. R. R., 66 case the act was malicious, yet an act not N. Y. 181, 23 Am. Rep. 37, where the court malicious is within the enunciated principle, spoke as follows: "Where one person has if such act is not expressly or by necessary sustained injury from the negligence of an- implication within the scope of duty, and other, he must in general proceed against him with regard to which it cannot be said that by whose negligence the injury was occasion- the servant was engaged in the performance ed. If, however, the negligence which caus- of the act for the other. The act must be ed the injury was that of a servant while done for the purpose of executing the masengaged in his master's business, the person ter's orders and doing his work and while acsustaining the injury may disregard the im- tually engaged in serving the master, and mediate author of the mischief, and hold the it is not enough to say that the injuries commaster responsible for the damages sustain- plained of would not have been committed ed.” In Wyllie v. Palmer, 137 N. Y. 248, without the facilities afforded by the serp33 N. E. 381, 19 L. R. A. 285, the court ant's relations to his master. Garretzen v. said: "The doctrine of respondeat superior Duenckel, 50 Mo. 104, 11 Am. Rep. 405; Howe applies only when the relation of master and V. Newmarch, 12 Allen (Mass.) 49.

For a servant is shown to exist between the wrong- clear exposition of this principle, see Morier doer and the person sought to be charged v. St. Paul, etc., Ry. Co., 31 Minn, 351, 17 for the result of such neglect or wrong at N. W. 952, 47 Am. Rep. 793. The following the time and in respect to the very transac- are some recent authorities on this subject tion out of which the injury arose.” In Hol- with special relation to automobiles: Stewler v. Ross, 68 N. J. Law, 324, 53 Atl. 472, 59 art v. Baruch, 103 App. Div. 577, 93 N. Y. L. R, A, 943, 96 Am. St. Rep. 546, Mr. Jus- Supp. 577; Clark V. Buckmobile Co., 107 tice Fort, speaking for this court, says: “The App. Div. 120, 94 N. Y. Supp. 771; Reynolds servant of the master cannot bind the mas- v. Buck, 127 Iowa, 601, 103 N. W. 946; Quigter to respond in damages to the plaintiff un- ley v. Thompson, 211 Pa. 107, 60 Atl. 506 ; less it be shown that the act which the sery- Patterson v. Kates (C. C.) 152 Fed. 481; Slaant did which caused the injury was an act ter v. Advance Thresher Co., 97 Miun. 305, which was expressly or by necessary implica- 107 N. W. 133; Evans v. Dyke Auto Supply tion within the line of his duty under his Co., 121 Mo. App. 266, 101 S. W. 1132; Lotz employment.” We have seen that there was v. Hanlon, 217 Pa. 339, 66 Atl. 525, 10 L, R. no express authority for the daughter to take A. (N. S.) 202, 118 Am, St. Rep. 922; Lewis the vehicle on the occasion of the accident, V. Amorous, 3 Ga. App. 50, 59 S. E. 338; Jones nor can we perceive that, by necessary im- V. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. plication, her use of it for her own purposes A. (N. S.) 216. was within the line of her duty under her Undoubtedly liability might be visited assumed implied employment. In Evers v. upon the father, but upon quite different Krouse, 70 N. J. Law, 653, 58 Atl, 181, 66 L. grounds. If the machine had been bought R. A. 592, the case last cited received again for his children's use, and it was in its na.

then under the theory illustrated in Van Winkle v. Am. Steam Boiler Co., 52 N. J. Law, 240, 19 Atl. 472, it might well be that liability would arise by reason of the father's intrusting a dangerous machine or agency to the hands of an inexperienced or incompetent person. Such a liability does not rest upon the negligence of the servant, but upon the father's negligence in permitting his child to use a dangerous machine. In the one the gist of the action is the negligence of the servant imputed to the master; in the other, the negligence of the father. This distinction is thus stated in 29 Cyc. 1665: "The mere relation of parent and child imposed upon the parent no liability for the torts of the child committed without his knowledge or authori. ty expressed or implied ; and, although when a parent authorized his child to act as his agent or servant in any matter he is liable for the torts of the child committed in the course of the employment, this liability does not grow out of the relation of parent and child, but is based upon the relation of principal and agent or master and servant, and is governed by the principles applicable to such relations. So also, while the parent may be liable for an injury which may be caused directly by the child, where, by his negligence, he made it possible for the child to cause the injury complained of, and probable that the child would do so, this liability is based upon the rules of negligence rather than the relation of parent and child." We are not at liberty to consider this possible liability, for there could not be any finding of fact against the defendant to this effect; it ap pearing from the bills of exception that the trial judge excluded from the consideration of the jury that question of fact by his instruction that, unless there was agency, there was no liability. Fielders v. North Jersey St. Ry., 68 N. J. Law, 343, 53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552. It was therefore error to refuse to direct a verdict for the defendant.

Error has also been assigned upon exception taken to the charge. The defendant requested the court to charge:' "If at the time of the accident Miss Thomsen was using the machine for her own pleasure, and without reference to the defendant's business, then there must be a verdict for the defendant.” This the court refused, and instead charged: “When you come to consider the defendant's business,

it is the business for which he bought this machine; that is, the business of the defendant.

It was the particular business for which he bought this machine. Was this servant engaged in operating that machine for the purpose for which her father bought it? Was she operating it for her own pleasure in the way that she has testified to? If she took that machine out at that time in pursuance of a general authority of her father to take it when

ever she pleased for the pleasure of the family and for her own pleasure, for the purpose for which the master bought it, for the purpose for which her father owned it, for the purpose for which he expected her to operate it, then she was the vant of the father. Under those circumstances, that was the business for which the father bought the machine. If she did not have this general authority from her father, if she took this machine out for her own recreation, amusement, and pleasure, contrary to the authority of her father, and this accident occurred, while she may be liable, the father is not. I charge the sixth request to charge with the qualification which I have stated to the jury.” This makes the defendant's liability to depend upon the object for which he purchased the machine, which was for the pleasure of the family, in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. This is contrary to the doctrine of Evers v. Krouse, supra. It would subject a parent to liability if he bought for his son a baseball or for his daughter a golf club, and by permitting them to be used by his children for their appropriate purposes injury occurred. It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child. This proposition ignores an essential element in the creation of that status as to third persons, that such use must be in furtherance of and not apart from the master's service and control, and fails to distinguish

en a mere permission to use and a use subject to the control of the master and connected with his affairs. The reason for liability is founded upon the idea of control which a master has over his servant. The court, although attempting to rest the liability upon the relation of master and seryant, yet actually tested the liability by the fact that she was intrusted with the operation of the machine for her own pleasure, if purchased for that object, whereby she ipso

to became a servant. So that the charge thus in fact left the legal relationship of master and servant out of account and raised it in name only because the daughter was allowed to drive the machine. In this there was also error.

The judgment must be reversed and a venire de novo awarded.


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to build a central heating plant, from which heat is to be distributed through pipes to a group of schoolhouses situated in the vicinity of, but not adjoining said central plant.

(Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. Å 188; Dec. Dig. § 79.*] 2. SCHOOLS AND SCHOOL DISTRICTS (8 80*)BOARD OF EDUCATION-POWERS.

The school act requires that there shall be advertisements for proposals for the building, enlargement, or repair of schoolhouses, and that no bid shall be accepted which does not conform to the specifications therefor. Held that, after the reception of bids, it was not within the power of the board of education to modify the specifications by omissions and changes, and award a contract to a former bidder, although the lowest, to execute the work according to the revised specifications, although at a price less than the original bid.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 192; Dec. Dig. $ 80.*]

(Syllabus by the Court.)

Certiorari on the prosecution of Peter Scola against the Board of Education of the Town of Montclair and Norman S. Kellogg, to review a resolution. Resolution set aside.

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

MacLear & Fort, for prosecutor. Guild, Lum & Tamblyn, for defendant N. S. Kellogg. Edwin R. Goodell, for defendant Board of Education of Town of Montclair.

REED, J. This writ brings up a resolution authorizing a contract to be entered into, between the board of education of the town of Montclair and N. S. Kellogg, for the construction of a central heating plant for five school buildings in the town of Montclair. The resolution was adopted July 7, 1908, at a regular meeting of the board of education, and it provides substantially that, upon the full compliance of N. S. Kellogg with certain stipulations and specifications as to contract, and upon notice from the proper town officials that funds are available for the erection and completion of said buildings, the president and secretary of the board of education are authorized to execute contract for said building with N. S. Kellogg. One of the reasons urged against the validity of this resolution attacks the power of the board of education to enter into any contract to construct the heating plant proposed to be erected. It is not questioned that the board of education possessed the power to erect, enlarge, repair, or furnish a schoolhouse or schoolhouses. Sections 52, 53, 72, 76, Public School Act, approved October 19, 190,id (P. L. 1903, pp. 21, 26, 28). The provisions of these sections, all contained in article. VI of the act of 1903, were accepted by the voters of Montclair under the provisions contained in section 243 of said act.

The point made is that the proposed structure is a heating plant, and not a school

building. The facts are that there are four school buildings existing, and another in the course of erection. There is a grammar school building, a primary school building and a manual training school building, upon the lot on which the central heating plant is to be placed. The high school building is about 200 feet away on an adjoining lot. The Hillside grammar school building, now being erected, is about the same distance from the first three mentioned buildings, and near to the high school. This cluster of five buildings constitute a group called “The Central Schools.” The buildings are of various ages, from 15 to 50 years. The central heating plant will be approximately 60 feet from the primary school building, ad 200 feet from the high school and the Hillside grammar school buildings. The central heating plant is designed to furnish heat to all these five school buildings, and to these buildings only. It seems manifest that the board had the ability to enter into a contract for heating one or all of these five schools, because artificial heat is essential to the use of the buildings designed for school purposes. Therefore, had the board contracted for stoves for each room in each schoolhouse, or for single heaters to heat all the rooms in each house, such a contract would be clearly within the statutory authority conferred. The stoves would have been a part of the furnishing of the buildings, and the heaters would have been a part of the buildings themselves. Now if directly adjoining each house a room had been devoted to the generation of heated air, from which heated air was conveyed by pipes into the various rooms, there would still be no doubt that this was a part of the school building. But the insistence is that the present proposed building will be detached from any present or proposed school building, and therefore can be no part of the school buildings.

The only case in this state which I recall as possessing any pertinence to the ques tion thus presented is that of Chamberlain v. Cranbury, 57 N. J. Law, 605, 31 Atl. 1033, on error 58 N. J. Law, 347, 33 Atl. 923. That case arose under the old school law as amended in 1894. P. L. 1894, p. 506. Section 19 of that act provided that the majority of legal voters of a school district could authorize the board of education of the district to issue bonds for the following purposes: (a) The purchase of land for school purposes; (b) the building of a schoolhouse or schoolhouses; (c) making additions, alterations, repairs, or improvements in or upon schoolhouses already erected, and the lands upon which they are located. Tbe question was discussed whether under this statute the voter could empower the board of education to issue bonds, not only for the purchase of a lot and the building of a schoolhouse, but also for fencing, grading,

water supply, and furniture for the school- ported to the board of education a tabuhouse. The Supreme Court held that the lated statement of the bids, with the remark grading, fencing, digging of a well, or pro- that he had “had Mr. Kellogg in, and that viding other means for supplying the school Kellogg would deduct from the amount of with water, and the equipping of the school- his bid $1,440 for omitting the Smith system, house with school furniture, were all a legiti- and would deduct other specified sums for the mate part of the construction of the school- changing or omitting of certain work requirhouse, and the proper equipment of school ed in the specifications. By these changes property. On error, the court of last resort and omissions, Kellogg's revised bid was reobserved: “We are inclined to so regard the duced to $23,763.37. The resolution brought fencing, grading, and water supply; so also up authorized the president and secretary any furniture which may be constructed with. of the board of education to accept the conand permanently fixed to, the building, such tract with Mr. Kellogg upon the revised as slates or blackboards built into the wall. basis. The reason assigned for this revision But we cannot so regard the ordinary mov- of the specifications and this reduction of able furniture of a school which is not fixed the amount to be paid Kellogg was that the to the building.” The court, it seems, im

estimate of the amount of money necessary ported the doctrine of fixtures into the ques- to be appropriated to the construction of the tion whether furniture was a part of the plant was insufficient to complete the general .schoolhouse. If that test is applied in this

work, as well as the particular work, upon case, we think the central heating plant is which Kellogg and the others bid, and so to be regarded as a part of the school build- the changes and reduction of price were to ings. It is to be applied to the use to which bring the cost of the work within the estithe schoolhouses are devoted. There is in- mated appropriation. These reasons were tention that it shall be so applied, and there no doubt conceived in good faith. The ques. is annexation to the houses by pipes which tion, however, propounded is whether the will convey the hot air from the plant itself

resolution to award the contract to Kellogg to the separate buildings. Atlantic Safe De- was in conformity with the statutory scheme posit & Trust Co. v. Atlantic City Laundry of competitive bidding. It is manifest that Co., 64 N. J. Eq. 140-146, 53 Atl. 212. Nor there was no competitive bidding upon the does the fact that the heating plant is built work as revised. Even if the accepted pro. as a single structure, and not in connection posal had been for less work than included with the schoolhouse now in course of erec- in the specifications, or in other words, if tion, matter, for the power to improve, re- the change was not in adding to, but only pair, or furnish school buildings is as plen- in discarding certain items which had been ary as the power to erect them. So we think a part of the plan upon which the bidders there is no defect of power to issue bonds had figured, it would nevertheless be a fact upon this ground of objection.

that the bidders had not bid upon the reThere is however, a ground upon which the

vised plan. What estimates each bidder resolution must be set aside. Section 52, would place upon the various items of work School Act 1903, printed in the fore part of which went to make up the entire estimate P. L. 1903, pp. 5–21 enacts that: “No con- does not appear.

So whether the amount tract shall be entered into for the building which each person would have bid, if the of a new schoolhouse or for the enlarging specifications had included only the work or repairing of a schoolhouse already erected which Kellogg subsequently agreed to do, except after advertisements made under such whether it would have been more or less than regulations as the board may prescribe.” Kellogg's price, is a matter for conjecture. There is a proviso which does not affect the But there are not merely omissions, but present case. Section 53 provides that: “No changes, in the plans as revised; changes in bill for building or repairing schoolhouses or the Acme system, and changes in the pipe for supplies shall be accepted which does not coverings. This fact only accentuates the conform to the specifications furnished there- difference between the specifications as bid for, and all contracts shall be awarded to the upon, and the specifications upon the basis lowest responsible bidder." These statutory of which the contract was directed to be acprovisions, as already observed, were accept-cepted. It is because the legislative purpose ed by the voters of Montclair in accordance to require competitive bidding will be foiled with section 243 of the above statute. In if municipal bodies can enter into a contract the present instance the advertisement for upon a basis other than that advertised that proposals directed the bidders to state the it has been held that a contract must corsum for which each would supply material respond with the specifications upon which for and erect the central heating plant, stat- bids were invited. In State, Skirm, v. City ing the amount to be deducted from the bid of Trenton (N. J. Sup.) 29 Atl. 158, it was in case a specific change should be made in said: “The contract set out in the return is the material to be used in each of three par- also improper in allowing six months for ticulars. Bids were received from eight bid- the doing of the work, while the proposal for ders, the lowest of whom was N. S. Kellogg, bids stated that the work should be com

Alonze Church (Munn & Church, of counsel), for complainant. A. F. Skinner (Pitney, Hardin & Skinner, of counsel), for defendant Charlotte Tewksbury. W. T. Carter, Jr., for infant defendants..

between the advertised proposals and the contract in this particular is enjoined by the statute, and is necessary to secure impartiality toward the bidders.” So in Shaw v. City of Trenton, 49 N. J. Law, 339, 12 Atl. 902, Mr. Justice Magie observed: "In my judgment, a contract awarded with a warranty of 9 years was not the contract for which proposals were asked, and therefore the competition required by section 107 of the charter (P. L. 1874, p. 385) was not afforded.” Although this case was reversed by the Court of Errors for another reason, the view expressed in the Supreme Court was concurred in. Van Reipen v. Jersey City, 58 N. J. Law, 262, 270, 33 Atl. 740. In this last case it was held that, bids having been invited upon the condition that the contractor should provide reservoir capable to store a water supply for 100 days, delivery at the rate of 50,000,000 gallons per diem, the contract was not lawfully awarded to one of the bidders, for the reason that it offered to provide a storage capacity sufficient for 250 days. Indeed this rule that a contract must conform to the specifications is one so essential to the preservation of the policy to be carried out by competitive bidding that it has been recognized whenever the matter has been brought under judicial notice. 20 Cyc. of Law, p. 1169, and cases cited.

The resolution should be set aside.


(75 N. J. E. 4)

OTT v. TEWKSBURY et al. (Court of Chancery of New Jersey. Oct. 31,


Testator in general terms gave half his estate to his widow for life, and at her death to his issue surviving her; and besides the genera) rule of construction in such a case, without more, that the personal property is to be converted and invested by the executors, and the income only paid to the life tenant, other clauses expressly authorizing the executors to sell any or all of the personal property and invest the proceeds, and to sell the real estate, and expressly directing that the management of real estate in which 0. was interested with testator should continue with him, indicated that the whole estate should be converted by the executors and invested by them; they paying the income to the widow. Held, that a contrary intention, that she should have possession of the principal, overcoming this, was not shown by the provision expressing the desire of testator that his widow should out of his personal estate make such gifts to certain friends (preferably money to two of them) as they should desire and the executors should approve.

[Ed. Note.-For other cases, see Life Istates, Cent. Dig. $ 30; Dec. Dig. $ 7;* Wills, Cent. Dig. 8 1748.]

EMERY, V. C. One question was reserved on the hearing of this case, which is a bill filed by an executor for the construction of a will and directions as to payment of a legacy to the tenant for life. The testator, George E. Tewksbury, a resident of this state, died possessed of considerable personal property and also of real estate situate mainly out of this state. By his will, after first directing payment of his just debts and funeral expenses, he gave, devised, and bequeathed to his wife, "one-half of all my estate, both real and personal, during her natural life, and at her death to my lawful issue her surviving.” One child is living, the infant defendant of whom the wife has been appointed guardian. The remaining half of his estate, both real and personal, was devised and bequeathed to his lawful issue him surviving. After these two general bequests and devises by the second and third items of his will, disposing of all his estate, real and personal, after payment of debts and funeral expenses, the testator makes devises and bequests which, being subsequent, qualify or affect the previous gifts. By the fourth item he directs that a house and lot in New Hampshire, in which his mother was livingand which (as appears by the evidence in the cause) testator claimed to be his property, be sold and the proceeds divided, one half to his wife, and the other half to the defendants, his sister and brother, equally. This property has been sold and the one-half of the proceeds to which the wife is thus entitled absolutely is in the executor's hands for payment to Irer, subject to his accounting, and payment of this one-half should be made to the widow as directed on the hearing. The fifth clause directs that the sale and management of the real estate in which testator was jointly interested with his partner, Simon S. Ott, of Topeka, Kan., shall be left entirely to his discretion.

The sixth and seventh clauses are as follows:

"Sixth. I desire that my wife shall out of my personal estate make such gifts to my friends Howard W. Hayes, my long and faithful partner Simon S. Ott, my uncle Col. A. S. Johnson and his wife, L. A. Johnson, (which I suggest in their case shall be money) as they may desire and my executors may approve,

"Seventh. I authorize my executors to sell and dispose of any or all of my personal property at public or private sale at their discretion and to invest the proceeds thereof whenever in their judgment such course shall

Suit by Simon Ott, sole surviving executor of George Tewksbury, deceased, against Charlotte Tewksbury and others for construction of a will, Heard on bill, answers, replication, and proofs. Will construed.

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