a substitute for a writ of error is plain, and obligation by the other, but it is the manifest that when so used it is improvident if al- intention of the parties, to be inferred from lowed before final judgment is well settled the nature of the contract, that the other perby our cases. The Supreme Court, in Hinch-form a correlative duty, without which performance cannot be accomplished, such corman v. Cook, 20 N. J. Law, 271, said: relative duty will be implied, and its willful or "A writ of error, or a certiorari substituted careless omission will justify the abandonment by statute for that writ, cannot go for a part of the contract by the obligor. only of the record, nor before final judgment." | 3. Appeal and error

In Hoxsey v. Woodruff, 39 N. J. Law, 72, the Supreme Court stated the rule to be: "It is not a proper use of the writ to intercept and remove, for review, the steps in a procedure, preliminary to a decision or final resolution therein, except when the court issuing the writ can continue the proceedings to completion."

On review of the judgment based on that rule Mr. Justice Dixon, speaking for the Court of Errors and Appeals, said:

Its

"But this rule is not of universal force. operation is properly confined to those cases where the office of the writ is in the nature of that of a writ of error, and when, therefore, its allowance is governed by similar principles." Hoxsey v. City of Paterson, 39 N. J. Law, 489.

This rule was followed in Mowery v. Camden, 49 N. J. Law, 106, 6 Atl. 438, the opinion being read for the Supreme Court by the same justice. The court of quarter sessions is a court of record, and its judgments subject to review by writ of error, and to allow its proceedings to final judgment in a criminal case to be intercepted by a writ of certiorari, where the Supreme Court cannot continue the proceedings to completion, is not supported by our cases on the subject.

722(1)-Numerous

reasons for reversal should not be filed.

A vast number of reasons for reversal, most of them without legal merit, should not be filed, as they tend to confuse the real issue, and do not aid the court, but cast on it a useless burden.

Appeal from Circuit Court, Atlantic County. Action by the City of Atlantic City against the Farmers Supply & Products Company and others. From the judgment, both parties appeal. Affirmed.

Frank M. Sooy and Joseph B. Perskie, both of Atlantic City, for appellant.

Thompson & Hanstein, of Atlantic City, for respondents.

BERGEN, J. [3] In this case 122 reasons as grounds for reversal have been filed by the plaintiff, as appellant, which have been argued generally without reference to the record showing exceptions. We deem it our duty to deprecate the display on the record in this cause of so many reasons for reversal, a vast majority of which have no legal merit, and are dealt with in plaintiff's brief by reference to a combination of numbers without pointing out where the testimony to which they refer appears in the record, thus casting on the court an unnecessary burden. Such a brief does not aid the court, but, on the contrary, makes it difficult to ascertain the real objections argued. Very few cases require such prolixity, and certainly this case does not. Trenton Banking Co. v. Rittenhouse, 115 Atl. 443, June Term, 1921. This ATLANTIC CITY v. FARMERS' SUPPLY & action was brought by the city of Atlantic

The writ will be dismissed and the record remitted to the quarter sessions for further proceedings as indicated in this opinion.

(96 N. J. Law, 504)

PRODUCTS CO. et al.

City against the defendant as a contractor

(Court of Errors and Appeals of New Jersey. for the removal of garbage; the basis of the Nov. 14, 1921.)

(Syllabus by the Court.)

action being that the defendant refused performance without legal justification. The defendant also filed a counterclaim setting up that a part of the consideration for the conperformance by one contracting party justi-tract was the profit which the defendant fies the other in abandoning contract.

1. Contracts

303(4)-Interference

with

would make from the treatment of the garA party contracting with another party to bage so as to produce a by-product, and that, perform a work has the right to proceed free because of the condition of the garbage, from the hindrance of the other party, and, if the latter prevents the doing of the work to which contained refuse matter expressly exsuch an extent as to render the performance empted by the contract, its treatment for the difficult, and largely diminish the profit, or in-purpose intended was prevented to the great crease the cost, the contractor may lawfully damage of the defendant. The trial court abandon the performance.

admitted evidence in the support of this de

2. Contracts 303 (4)-When correlative du-fense, but in charging the jury it eliminated ty will be implied on part of contracting party stated.

Where a contract imposes an obligation on one party to perform an act with no express

all the evidence regarding the counterclaim, and expressly instructed the jury that it must confine itself to the issue whether the defendant had the right to abandon the con

(115 A.)

tract, and that they were to disregard all the the court and consider evidence which it had evidence relating to the counterclaim, the expressly directed them not to, and which effect of which amounted to a direction by their verdict they did not. It cannot be against the defendant on its counterclaim. said that this course of conduct was an error The jury found generally in favor of the de- which requires a reversal of this judgment; fendant, and the plaintiff has appealed. The otherwise all evidence, once admitted in a defendant also appeals from the action of cause, but afterwards stricken out by the the court in eliminating its counterclaim. The difficulty with the defendant's appeal is that no exception was taken to the action of the court in thus eliminating the counterclaim. A careful examination of the record fails to disclose any exception taken by the defendant, and it is not pointed out where any such exception could be found by the defendant in its brief; therefore, so far as the defendant's appeal is concerned, the judgment will be affirmed.

Turning to the appeal of the plaintiff, we find that the contract provides for the collection and disposition of all the garbage and dead animals in Atlantic City for the period of five years from September 1, 1916; that the term "garbage" is defined to mean:

"All refuse of animal and vegetable matter which has been used as food for man and all refuse, animal and vegetable matter, which was intended to be so used, and also food condemned by the health department, offered to the contractor, but shall not include, and the contractor shall not be required to remove oyster and clam shells, waste paper, rubbish, cans or similar refuse. The term 'dead animals' means all dead animals or parts thereof not intended to be used as food for man."

The record shows that the garbage offered for removal contained about 35 per cent. of the matters excluded by the contract; that complaint was made by the contractor to the city of this condition, and the city undertook for a limited period to prevent its residents from combining with the garbage as defined by the contract oyster shells, rubbish, and other materials which were expressly excluded, but for some reason soon abandoned that effort; that the contractor, not being offered by the city the character of garbage it was bound to collect and dispose of, refused further collection and abandoned the contract, and thereupon the city brought this suit to recover damages for the nonperformance of

the contract.

According to the plaintiff's brief, the first reason for reversal is the admission of the evidence of the witness McKeever, the result of which, according to the plaintiff's brief, was to give the jury a basis upon which to estimate the damages the defendant had sustained by the reason of the citizens mixing the garbage with foreign substances, which it is claimed should have been excluded at the beginning of the case. This evidence all related to the defendant's counterclaim, which the court expressly directed the jury it should disregard, but the argument of the appellant is based upon the supposition that the jury would disregard the instruction of

court because upon reflection it was not deemed competent, would result in an incurable error, although beneficial to the party complaining, and who sought its exclusion.

[1] The next point made is that it was improper to admit evidence of the various complaints to the plaintiff made by the defendant because of the intermingling of garbage with rubbish. There was no error in the admission of this testimony, because by the terms of the contract defendant was entitled to have all garbage offered free from rubbish which the contract expressly excluded, and, although the contract did not expressly require the city to offer the garbage in the condition contracted for, the law will imply a covenant that the city will perform a correlative duty, if it is the manifest intention of the parties, and cannot by its own act prevent the contractor from performing the contract according to its terms. It is quite obvious from the terms of this contract that it was the intention of the parties that the city should co-operate to the extent of offering the character of garbage contracted to be collected, and the contract did not require the contractor to go to the expense of separating the garbage, and if the city did not do its duty, but by its conduct did, willfully or carelessly, create a condition which imposed an additional burden on the contractor, it had a right to complain to the city in order that it might remedy this illegal condition. As was said by the Supreme Court of the United States in Anvil Min. Co. v. Humble et al., 153 U. S. 540, 14 Sup. Ct. 876. 38 L. Ed. 814:

*

* hindrance of

"Generally speaking, it is true that when a contract is not performed the party who is guilty of the first breach is the one upon whom rests all the liability for the nonperformance. A party who engages to do work has a right the other party, and, if such party interferes, to proceed free from any hinders and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first may treat the contract as broken, and is not bound to proceed under the added burdens and increased expense."

[2] It was therefore competent for the defendant to show that before it abandoned the contract notice of the condition was given to the city with the request that a remedy be provided. Where a contract obliges one party to perform it, and its performance, within the intention of the parties, requires the performance of a correlative obligation by the other party, such obligation will he implied.

As stated in Lewis v. Atlas Mutual Life In- doning its contract, and that depended upon surance Co., 61 Mo. 538: questions of fact, the principal one being whether the city by its acts, willful or care

contract to be so impregnated with forbidden matter as to prevent the defendant from performing its contract without at least a large additional expense, and that was a question for the jury.

"It very frequently happens that contracts on their face and by their express terms ap-less, permitted the garbage offered under the pear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied. As, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or things necessary for the completion of the contract will be necessarily implied."

This statement of the legal rule was ap proved in Hinds v. Hinchman-Renton Fireproofing Co., 165 Fed. 339, 91 C. C. A. 325. The next point made is that certain photographs and letters were admitted in evidence, but, as some of these relate to the counterclaim, they were all eliminated by the instruction given by the court. As to the others, they showed the condition in which the garbage was placed ready to be collected as intermingled with shells, tin cans, and other rubbish. They were competent to show

that condition.

The next point made is that the trial court instructed the jury that it was practically impossible to separate the rubbish from the garbage, and that the plaintiff could not recover. What the court did say was that it had been testified that it was practically impossible to separate the rubbish from the garbage, and in considering that matter the jury were also justified in considering the fact that the contract made by the city was for the benefit of the residents. "Now did these for whom the contract was made, by their acts, render the contract impossible to perform?" If it was a fact that the city or those for whose benefit the contract was made did by their act render the contract impossible to perform, then the contractor had a right to refuse to continue the collection of the garbage, but it was also charged in this connection that, if the jury should find from the testimony that, although there was some intermingling, it was not of such a general or continuous happening that the garbage which was not mixed could have been collected, it would have been the duty of the contractor to collect such garbage as was not intermingled, permitting the rest to remain. This was not error, because one party cannot by its acts prevent the contractor from performing its contract and then hold him responsible.

The next point to be considered is the refusal to direct a verdict for the plaintiff. The question to be determined was whether the contractor was legally justified in aban- |

We have examined, as well as the shape of the record will permit, the residue of the numerous reasons given for reversal, and find them without merit.

The judgment will be affirmed, with costs.

TRENCHARD, J.

The plaintiff in error was convicted upon an indictment for perjury, and that conviction was affirmed in the Supreme Court.

The only matter argued in the Supreme Court, and the only matter argued here, related to the admission in evidence of the testimony of three witnesses produced by the state, each of whom had been indicted for perjury, and had been arraigned and pleaded guilty, prior to the trial of the indictment in question.

No objection was made to the testimony of these witnesses until after it appeared by the cross-examination in each instance that they had been convicted of perjury, and then counsel moved to strike it out upon the ground that it was incompetent in view of section 18 of the Crimes Act (2 C. S. p. 1748). The Supreme Court considered that the

N. J.) INTERNATIONAL MOTOR CO. v. MAYOR, ETC., CITY OF PLAINFIELD

(115 A.)

391

motion to strike out the testimony was prop-lation between counsel of certain occurrences erly denied for two reasons, the first of which at the trial, but the testimony is not printed, was that the motion came too late. But we and there is not even a bill of exceptions in prefer to express no opinion as to that ground. the old form. Counsel state that this course We prefer to rest our decision upon the sec- was pursued in order to avoid the great exond reason given in the Supreme Court, which pense of printing about 1,000 pages of testiwas the broad ground that the testimony was mony, but, in the absence of a bill of excepcompetent. tions or a certification of the entire proceedings at the trial, our uniform practice has been to affirm the judgment because there is nothing to review. Synnott v. Shaw, 77 N. J. Law, 803, 74 Atl. 526.

As we have indicated, the argument of the plaintiff in error is that a witness is incompetent when it appears in the case that he had been convicted of perjury, and that the effect of that conviction was to render him incapable thereafter of giving testimony in any court of this state, this being the provision of section 18 of the Crimes Act of 1898 (P. L. p. 798). But we are of the opinion that this provision was abrogated by the first section of our Act Concerning Evidence, as revised in the year 1900 (C. S. p. 2217) which provides that:

"No person offered as a witness in any action or proceeding of a civil or criminal nature shall be excluded by reason of his having been convicted of crime, but such conviction may be shown on the cross-examination of the witness, or, by the production of the record thereof, for the purpose of affecting his credit."

But, if the alleged error assigned is to be considered, the judgment was properly affirmed in the Supreme Court on the ground taken in that court that any incompetency of the witnesses known to the defendant should have been urged when they were called to the book, and not deferred until their examination in chief was concluded. Berryman v. Berryman, 21 N. J. Eq. 371; Howell v. Ashmore, 22 N. J. Law, at page 267; Wigm. Ev. §§ 486, 586; Greenleaf on Evidence, § 421.

Mr. Justice KALISCH authorizes me to

Either one of these grounds was determinative of the writ of error, and I see no good reason for resorting to the obiter dictum in State v. Henson, 66 N. J. Law, 601, 50 Atl. Such is the logic and effect of our decision 468, 616, the result of which is to wipe off in State v. Henson, 66 N. J. Law, 601, 50 Atl. the statute book one of the penalties for per468, 616. Therein the effect of the use of the jury prescribed by the Crimes Act, by treatword "crime" in the first section of the Acting a provision in the Evidence Act as pro Concerning Evidence (Revision of 1874; Gen. tanto a repealer. Stat. p. 1397) was considered, in full view of the fact, which was expressly recognized, that prior to such revision the statute law provided that no person convicted of perjury should be admitted as a witness. It is to be noted that the language of the first section of the Revision of 1874 p. 267 is identical with that of section 1 of our Evidence Act (Revision of 1900; C. S. p. 2217) now under consideration. In that case Mr. Justice Van Syckel, speaking for this court said:

"The first section of the present act [Rev. 1874] is an independent act, and must be construed according to the language employed by the Legislature to express its purpose in enacting it. The language is that no person shall be excluded by reason of his having been convicted of crime, but such conviction may be shown to affect his credit. The word 'crime,' being used without qualification, must be held to be used in its general sense to include any crime. It is not a word of doubtful meaning."

It is also to be noted that our construction of the statute is in harmony with that of the Supreme Court in State v. Magyar, 114 Atl. 252.

The judgment below will be affirmed.

PARKER, J. (concurring). My vote for affirmance of this conviction is based, first, on the absence of any exception challenging a ruling of the trial court. There is a stipu

say that he concurs in these views.

(96 N. J. Law, 364)

INTERNATIONAL MOTOR CO. v. MAYOR
AND COMMON COUNCIL OF CITY
OF PLAINFIELD et al.

(Supreme Court of New Jersey. Nov. 1, 1921.)

(Syllabus by the Court.)

1. Municipal corporations 238-City not required to consider a proposal to furnish a truck not in accordance with the notice published for bids.

A notice inviting bids for the furnishing of a truck to be used in the fire department of a city specified a two-wheel, front-drive, aerial truck of no less than 100 horse power. A bidder proposed to furnish a machine of an entirely different character as a substitute for that described in the notice to bidders, at a lower price than the bidders according to the specifications published. Held, that the city was not required to consider such proposal.

Charles A. Reed, of Plainfield, for City of directing the clerk to advertise for bids was Plainfield.