The and device to evade the license law. defendant claimed that he purchased the liquor in large quantities for the club, and disposed of it from time to time to such members as desired to be served with it. Every element of a sale was present in the transaction described by the testimony. From the location and character of the building, the surroundings and fittings of the room in which the business was conducted, its membership, its dues and the payment of them, and the general management and conduct of the business, it is manifest that the trial judge did not err in denying the motion for a new trial. Edward K. Nicholson, for appellant. John J. Cullinan, for appellee. ROBINSON, J. (after stating the facts as above). In this case the defendant sets up but one reason of appeal, and this is based upon his exception to the finding of the trial judge in that the finding omits paragraphs 6 and 7 of the defendant's draft of proposed finding. These paragraphs so omitted are as follows: "6. On or about the 3d day of June, 1898, the defendant paid into the said copartnership the further sum of $1,900. 7. In settlement of a claim against the said defendant the defendant later paid out about There is no error. In this opinion the oth- the sum of $800 from the funds of said coer Judges concurred. DUNDON v. DUNDON. partnership, leaving a net amount of $1,100 paid in by him on or about said June 3, 1898." The defendant moved the trial judge to correct his finding by adding thereto the paragraphs just quoted. This motion the (Supreme Court of Errors of Connecticut. July judge denied, and in denying it said that 12, 1910.) APPEAL AND ERROR (§ 1023*)-REVIEW-REFUSAL TO FIND. A trial court's refusal to find a fact will not be disturbed on appeal, though defendant's testimony, on which the finding was requested, was apparently not directly contradicted; determination of the witness' credibility being the trial court's exclusive province. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4019; Dec. Dig. § 1023.*] Appeal from Superior Court, Fairfield County; George W. Wheeler, Judge. Action by Thomas Dundon against Richard Dundon. From a judgment for plaintiff, defendant appeals. Affirmed. This was an action between partners brought by the plaintiff to obtain a settlement of partnership matters, claiming an accounting, payment of the amount found due him, and the appointment of a receiver. The court found the issues for the plaintiff, and found that the defendant had not accounted to the plaintiff for certain property aggregating $5,979.08, and rendered judgment for the plaintiff to recover of the defendant said amount and his costs. upon the evidence he was unwilling to find in accordance with the defendant's claim, and that it appears to be the most probable that this entire transaction was the partnership's, and not the defendant's. The defendant comes to this court for the correction of claimed errors in such action. It is very clear that these paragraphs contain statements of pure fact. The defendant testified to these facts apparently without direct contradiction. The trial judge heard his statements, but did not accept them as the truth, and he refused to find in accord ance with those statements. It was the exclusive province of the trial court to determine whether this witness was worthy of credence or not, and the court determined this adversely to the witness. The court declined to believe his statements touching this matter, and in effect said so. In doing this the court disregarded no rule of law. The defendant is not entitled to the correction asked for. There is no error in the refusal of the court to correct the finding. The other Judges concurred. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (80 N. J.. L. 143) MARTEN v. BROWN. ground that said walls and partitions are irregular and crooked, and that to perform (Supreme Court of New Jersey. July 21, 1910.) said work and complete said work on account (Syllabus by the Court.) 1. CONTRACTS (§ 56*)-CONSIDERATION. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 344; Dec. Dig. § 56.*] of the above defects, will cost $350, above the contract price, I herewith, in considera tion of his performing said work at once and not subcontracting the same, I herewith agree to pay the said sum of $350 extra. [Signed] Thomas H. Brown." Accordingly the plaintiff completed the carpenter work, and the defendant paid all of the original contract price and $25 on account of the extra compensation, but refused to pay the reThe Supreme Court will not review deci-mainder. Thereupon this suit was brought sions of the district court upon questions of to recover the sum of $325, the balance alfact. It will only look to see if there is any leged to be due. The trial judge, sitting legal evidence upon which the judgment may without a jury, rendered judgment for the plaintiff for $325. 2. APPEAL AND ERROR (§ 1008*) - REVIEW QUESTIONS OF FACT. rest. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3955; Dec. Dig. § 1008.*] Appeal from District Court of Jersey City. Action by Rudolph Marten against Thomas H. Brown. Judgment for plaintiff, and defendant appeals. Affirmed. Argued February term, 1910, before TRENCHARD and MINTURN, JJ. Norman L. Rowe and Randolph Perkins, for appellant. Benjamin J. Darling and Charles E. S. Simpson, for appellee. TRENCHARD, J. This is an appeal from a judgment of the second district court of Jersey City in favor of the plaintiff in a suit for the balance of the contract price of carpenter work. The defendant first argues that the motion to find for the defendant should have been granted, because there was no evidence of a consideration for the agreement to pay the extra compensation. We think there is no merit in the contention. Of course the rule is that doing, or promising to do, what one is already legally bound to do is no consideration. Hasbrouck v. Winkler, 48 N. J. Law, 431, 6 Atl. 22; Watts v. Frenche, 19 N. J. Eq. 407. But that rule has no application to this case. The rule is grounded upon the reason that the promisor gets no more in return for his promise than the promisee was already bound to give, and therefore, receives no consideration. Conover v. Stillwell, 34 N. J. Law, 54. But the doing or undertaking of anything beyond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. Pollock on Contracts, p. 177; 9 Cyc. 352, and cases there cited. In the case at bar it was open to the trial judge to find from the evidence that plaintiff was not bound by his original contract, or otherwise, to do the extra work rendered necessary by the "irregular and crooked" walls and partitions. The extra work required was a benefit to the defendant and a detriment to the plaintiff, and hence was a consideration for the promise to pay therefor. Conover v. Stillwell, 34 N. J. Law, 54; Hasbrouch v. Winkler, 48 N. J. Law, 431, 6 Atl. 22. The evidence at the trial tended to show the facts following: The defendant, as owner, was engaged in the construction of some houses in Jersey City. He let contracts to various materialmen and laborers. Among others, he let a contract for the carpenter work to the plaintiff and a contract for the mason work to another contractor. The specifications under which the contracts were awarded provided that the work was to be done in a good and workmanlike manner. Upon that basis the plaintiff proposed to do the carpenter work for $2,100 and was awarded the contract. During the progress of the work, and after about $1,500 had been paid plaintiff on account thereof, the plaintiff found that the walls and partitions built by the mason were not erected in a workmanlike manner, but were "irregular and crooked," and because of such defective mason work the cost of the plaintiff's carpenter work would be far greater than contemplated on the basis that the mason's work was to be properly done. In this situation the plaintiff refused to finish the work unless promised extra compensation. The result was that the defendant, a lawyer by profession, wrote and signed the following paper writing: "Whereas, Rudolph Marten has refused to complete his carpenter labor contract at Nos. 64, 66, 68 Tuers avenue, on the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 76 A.-64 The defendant now contends that there was no evidence that the walls and partitions were to be erected in a workmanlike manner. It is a sufficient answer thereto to say that counsel who tried the case in the court below then expressly admitted that the specifications provided that the work was to be performed in a workmanlike manner. There being evidence upon which the judgment may rest, this court will not review the decision upon questions of fact. Aschenberg v. Mundy, 76 N. J. Law, 352, 69 Atl. 954. The principle last stated is also fatal to the next reason assigned for reversal, which is that the "said contract was procured through fraud and misrepresentation, and is therefore null and void." We have examined the other reasons, but find none justifying reversal. be set aside for the reason, among others, that "the mayor and council of the city of Bayonne have never endeavored to agree with the authorities of the mayor and aldermen of Jersey City on a price for the lands The judgment of the court below will be sought to be condemned by the petition on affirmed. (80 N. J. L. 131) MAYOR, ETC., OF JERSEY CITY et al. v. MAYOR, ETC., OF CITY OF BAYONNE. which said order is based." The defendant asserts, and the prosecutors deny, that authority for the present condemnation proceeding is to be found in the act of April 1, 1895 (P. L. p. 769; Gen. St. p. 1388), and also in (Supreme Court of New Jersey. July 21, 1910.) the act of March 17, 1891 (P. L. p. 172; Gen. (Syllabus by the Court.) 1. EMINENT DOMAIN (§ 170*)—EFFORT TO PURCHASE-NECESSITY. On certiorari an order appointing commissioners for the condemnation of land, under the act of April 1, 1895 (P. L. p. 769; Gen. St. p. 1388), or the act of March 17, 1891 (P. L. p. 172; Gen. St. p. 1383), if it appears that a bona fide reasonable effort to purchase has not been unsuccessfully made by the petitioning party, although the owner was accessible and competent to sell, will be set aside. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 462, 466; Dec. Dig. § 170.*] 2. EMINENT DOMAIN (§ 170*)-EFFORT TO PURCHASE SUFFICIENCY. In view of the act of March 28, 1891 (P. L. p. 249; Gen. St. p. 465), conferring upon the board of street and water commissioners exclusive control over lands of Jersey City used for public streets or like public purposes, a mere unsuccessful effort to agree with the mayor of the city as to the purchase price of the right to lay and maintain water mains in such lands is not such an effort to agree with the owner as is made a condition precedent to the appointment of commissioners to condemn, under the act of April 1, 1895 (P. L. p. 769: Gen. St. p. 1388), or the act of March 17, 1891 (P. L. p. 172; Gen. St. p. 1383). [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 464; Dec. Dig. § 170.*] Certiorari by the mayor and aldermen of Jersey City and others, against the mayor and council of the City of Bayonne, to review an appointment of commissioners to condemn land. Order set aside. Argued February term, 1910, before TRENCHARD and MINTURN, JJ. James J. Murphy, Harry Lane, George Holmes, and Warren Dixon, for prosecutors. McCarter & English, for defendant. TRENCHARD, J. This certiorari brings under review an order made by a justice of the Supreme Court, on the application of the mayor and council of the city of Bayonne, appointing commissioners in a condemnation proceeding to appraise "land and property required, namely, the right to lay and maintain a thirty-inch steel or cast iron water main, for the purpose of conveying therethrough water over certain strips of land" owned by the mayor and aldermen of Jersey City and used for public streets or other like public purposes. St. 1383). Assuming, but not deciding that, by the statutes referred to, the city of Bayonne has authority to condemn lauds in question, still we are of the opinion that the present order appointing commissioners must be set aside for the reason we will now state. A failure to agree with the owner as to the purchase price after a bona fide reasonable effort is made by the statutes relied upon a condition precedent to the application for appointment of commissioners to condemn in all cases where the owner of the land is accessible and competent to sell. Chambers v. Carteret & Sewaren R. Co., 54 N. J. Law, 85, 22 Atl. 995; Vail v. Morris & Essex R. Co., 21 N. J. Law, 189; State, Wilkinson, v. Trenton, 36 N. J. Law, 499; State, Boice, v. Plainfield, 41 N. J. Law, 138. By the act of March 28, 1891 (P. L. p. 249; Gen. St. p. 465) all power and authority over lands of Jersey City used for public streets or other like public purposes, and all matters and things in any wise appertaining to the use or occupation thereof, or any part of the same, is lodged solely in the board of street and water commissioners of that city, Ito the exclusion of the board of aldermen where such power formerly resided. United Electric Co. v. Mayor, etc., of City of Newark, 77 N. J. Law, 104, 71 Atl. 237. It was therefore essential for the defendant to endeavor to agree with the board of street and water commissioners on a purchase price of the lands and rights sought to be condemned. This it appears it did not do. The defendant chose rather to apply to the mayor. The fact that the mayor announced his opposition to the proposal and refused to treat is immaterial. The mayor had no authority in the premises, and neither the board of street and water commissioners, nor the city, was bound by his action. most, he could but veto a grant made by the board, and the act of 1891 confers upon the board power to override the veto by passing the ordinance or resolution conferring such a grant over his veto. At Since the order under review must be set aside for the reason indicated, it is unnecessary to consider the several other reasons argued. The order in question will be set aside, The prosecutors insist that the order must with costs. (79 N. J. L. 593) SMALLBEIN v. ERIE R. CO. (Court of Errors and Appeals of New Jersey. July 1, 1910.) (Syllabus by the Court.) 1. RAILROADS (§ 33*)-FOREIGN CORPORATIONS -SERVICE OF PROCESS. Under section 46 of the district court act (P. L. 1898, p. 568) as amended by P. L. 1908. p. 181, process may be served on a foreign corporation by leaving a copy of the summons at the office, depot, or usual place of business of such corporation in the county, with the person in charge of such office or depot. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 71; Dec. Dig. § 33;* Corporations, Cent. Dig. §§ 2603-2627.] (Additional Syllabus by Editorial Staff.) 2. RAILROADS (§ 33*)-FOReign CorporATIONS -SERVICE OF PROCESS. Where service of summons on a foreign railroad corporation is had by leaving the summons at a depot of such corporation in the county, it is not necessary that the summons be left with some officer, director, agent, clerk, or engineer. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 71; Dec. Dig. 33; Corporations, Cent. Dig. §§ 2603-2627.] Error to Supreme Court. Action by George A. Smallbein against the Erie Railroad Company. From a judgment affirming an order denying a motion to set aside service of summons, defendant brings error. Affirmed. Collins & Corbin, for plaintiff in error. Adolf L. Engelke, for defendant in error. VROOM, J. The writ of error in this case was sued out to review a judgment of the Supreme Court which affirmed an order of the district court of the First judicial district of Bergen county, denying a motion of the plaintiff in error to set aside the service of a summons issued out of said district court. The suit below was to recover damages for injuries to the horse and wagon of the defendant in error, on account of the same being struck by a train of the railroad company at a grade crossing in the city of Englewood, Bergen county. The manner of the service of the summons issued from the district court appears from the return of the constable, which is as follows: "I served the within summons January 3, 1909, on Erie Railroad Company, the defendant, by leaving a copy thereof at the office and depot of the said Erie Railroad Company in Englewood, Bergen county, with one Charles W. Willis, the person in charge thereof, and by reading the same to him, and delivering to him said copy thereof." On the return of the summons a motion was made on behalf of the railroad company to set aside the service of the same. The motion was continued to a later date, with leave to either party to take depositions to be read at the hearing of the said motion. The district court, on the hearing, held that the service of the summons as returned thereon was good. A writ of certiorari was allowed to review the order of the district court, and, after the argument before Mr. Justice Parker, the order of the district court was affirmed. The railroad company is a foreign corporation, doing business and operating in the state of New Jersey, and the only question here involved is the construction of the forty-sixth section of the district court act (P. L. 1898, p. 568), as amended by P. L. 1908, p. 181. This section relates to the manner of the service upon a foreign corporation, and is as follows: "If the defendant be a foreign corporation, the summons shall be served upon any officer, director, agent or clerk, or engineer of such corporation, either personally or by leaving a copy thereof at his dwelling house or usual place of abode, in such county, or by leaving a copy at the office, depot or usual place of business of such foreign corporation in such county, at least five days before the return." This section provides for three modes of service: First, upon any officer, director, agent or clerk, or engineer of said corporation, personally; second, by leaving a copy thereof at his dwelling house or usual place of abode in such county; third, by leaving a copy at the office, depot, or usual place of business of such foreign corporation, in such county, at least five days be fore its return. The return of the writ in this case shows that the third mode of service provided by section 46 was adopted in this case. It is made clear by the depositions that the summons was left at the office and depot of the company in Englewood, and handed to Charles W. Willis, in charge of the office. Willis had charge of the office of the Erie Railroad Company at Englewood, attended to the tickets at the office, received checks, indorsed and deposited them. He opened communications and reported them, if necessary, to higher officers of the company. He sent the summons in this case to the general counsel of the company. He made reports to the company and paid out the funds of the railroad company to the help under his charge. The question whether Willis was made an agent of the railroad company upon whom personal service could be made under the first or second provisions of modes of service under section 46 need not be considered. I think the service in this case was in compliance with the third mode provided in the forty-sixth section of the statute. The fact that the railroad company had more offices, depots, and usual places of business in Bergen county than at Englewood will not militate against the fact that for the purpose of the service of process any office of a defendant foreign corporation in the county is the office for the service of process. It was urged, and properly, that a state might discriminate against a corporation a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes creature of another state. Therefore, when | ty; for it cannot be said that either party coua foreign corporation comes into New Jersey, templated a lawful delivery. it is liable to be served with process in such modes as the Legislature prescribes, if such mode be reasonably calculated to bring home notice of the suit to the defendant corporation. [Ed. Note. For other cases, see Escrows, Cent. Dig. § 11; Dec. Dig. § 9.*] Error to Circuit Court, Passaic County. Action by the Manchester Building & Loan Association against George W. Allee and another. Judgment for plaintiff, and defendants bring error. Reversed and new trial ordered. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. David H. Bilder, for plaintiffs in error. Michael Dunn and J. W. De Yoe, for de fendant in error. I agree entirely with the contention of the defendant in error that the third mode of service under section 46 does not require that the summons be left with some officer, director, agent, clerk, or engineer, the persons named in the earlier part of the section as those upon whom personal service could be made, but that it is simply a method pointed out for obtaining jurisdiction by leaving the summons at the office or depot of the corporation, and no question arises as to the official character borne by the person with whom the process is left. The reasonable construction of this provision of the section must be that foreign corporations, knowing that process might be served upon them, would instruct the person or agent in charge of such office or depot what to do in the event of such service being made in accordance with the statute. If service so made is reasonably calculated to bring home notice of the suit to the defendant corporation, the object of the stated to one year in the state prison, and thereute is attained. This accords with the grounds of decision in Hygea Brewing Co. v. Erie R. R. Co., 76 N. J. Law, 261, 69 Atl. 981. I am of opinion that the service in this case was within the reasonable construction of the act. BERGEN, J. The defendant Allee, as secretary of the plaintiff association, embezzled $14,000, and being threatened with prosecution, undertook to make restitution. He paid $9,000 in cash, gave a bond with the defendant Katz as surety for $3,000, and another bond for $2,000 with James A. Graham as surety. These bonds were delivered to the association by Wood McKee, Esq., acting as the attorney of Allee: Allee was indicted and convicted of embezzlement, and sentenc after this suit was brought to enforce the payment of the bond for $3,000. The defense which Katz sets up is that he signed the bond upon the understanding that it was to be retained by McKee, and not delivered to the association, should Allee be imprisoned The judgment of the Supreme Court should as a consequence of the criminal proceedings be affirmed. (80 N. J. L. 185) then pending against him, and should not have been delivered to the plaintiff because the condition of its delivery had not been fulfilled. This suit was tried and the plain MANCHESTER BLDG. & LOAN ASS'N v. tiff had a verdict upon which the judgment ALLEE et al. (Supreme Court of New Jersey. July 11, 1910.) (Syllabus by the Court.) 1. ESCROWS ( 9*)-DELIVERY-PERFORMANCE OF CONDITIONS. now under review was entered. The first point raised by the plaintiffs in error is that the trial court refused to nonsuit because no proof was made that the plaintiff had possession of the bond. Aside from the question whether an inference of Where a bond for the payment of money possession could not be drawn from the prois placed in escrow to be delivered by the de-duction in court by plaintiff's counsel of the positary to the obligee upon the performance of a condition, the depositary is a special agent, and cannot make good a delivery to the obligee until the condition is performed, although the obligee may have no knowledge of the condition imposed. [Ed. Note.-For other cases, see Escrows, Cent. Dig. § 11; Dec. Dig. § 9.*] 2. ESCROWS (§ 9*)- DELIVERY - UNLAWFUL CONDITION. bond, the case subsequently disclosed that the bond had been delivered to plaintiff, although, it is claimed, improperly; there fore there was no error in the refusal to nonsuit upon this ground. The second point urged is based upon the refusal of the court to admit testimony tending to show that the bond was not lawfully The fact that such condition is contra bon- delivered to the plaintiff. On this point it os mores does not deprive the obligor of the is contended that the bond was executed and defense that the bond was delivered to the obligee without the performance of the condi- put in the hands of McKee, the attorney of tion upon which it was put in escrow. It is defendant Allee, to be held in escrow and the performance of the condition, and not the only delivered if Allee was not sentenced second delivery, that gives legal existence to to imprisonment; and the claim of the dethe obligation and if it only acquires vitality fendants is that there was error in overrulupon the performance by the obligee of a condition inimical to public policy, even performing evidence which, if admitted, would have ance of such condition would not give it vitali- shown that there was an agreement between |