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and actuated by a desire to injure the person who will suffer from the wrongful act (as is averred in the count under consideration), he cannot escape personal responsibility under cover of his agency.
This count is attacked also upon the ground that “it is inconsistent with itself, the averments contained therein being repugnant to each other.” The pith of this contention is that the averment that spruce trees are poisonous or noxious is false upon its face; that, not being either the one or the other, the further averment that the defendant knew that they had the characteristies specified and intended by planting them to take advantage of their poisonous or noxious qualities to injuriously affect the plaintiffs' land, is selfcondemnatory.
The answer to this contention is twofold-first, the fact that spruce trees are neither poisonous nor noxious is not so universally known that the court will take judicial notice of it. On the contrary, so far as there is any common knowledge upon the subject, we are inclined to think it is that coniferous trees (including spruce) have a poisonous or noxious affect upon all vegetable growth within the spread of their branches.
In the second place, trees which overhang the premises of another are a nuisance to the extent that their branches extend over such premises and the person over whose land they spread is entitled to his action for damages against the person who is responsible for iheir presence there. Wood Vuis., $ 11?; Cooley Torts (1st ed.) 567. And this is so without regard to the extent of the damage resulting therefrom, the insignificance of the injury going to the extent of the recovery and not to the right of action. Cooley Torts, supra. The right of action in the present case, therefore, depends upon the fact that the trees overhang the plaintiffs' premises, not upon the character of the trees, that being merely an element in determining the amount of the damage sustained by reason of the nuisance. Consequently, the description of the trees as “poisonous or noxious” is mere surplusage and affords no ground for a general demurrer.
The demurrer to the first count will be overruled.
The only ground of demurrer to the second and third counts, which we have found it necessary to consider, is that it does not appear therefrom “that there is any duty imposed upon the defendant to restrain and trim the branches of said trees in order to prevent them from encroaching upon the property of the plaintiffs." The gravamen of this count is that the defendant maintains these trees so close to the plaintiffs' property line as to overhang their land and injure it. Whether she maintains them as owner of the premises, as lessee thereof, or as a mere volunteer, is not stated, the averment being that the single act of maintenance renders her liable. It may fairly be presumed, therefore, in considering these counts, that the defendant maintained, and continues to maintain, these trees as a tenant in the occupation of the land upon which they are growing, and that they were there when she took her lease from its owner, for this satisfies the averment referred to. Matthews v. Bensel, 22 Vroom 30, 33. The question then arises, is a tenant, who is in possession of land upon which trees are growing that overhang adjacent premises to the nuisance of their owner, responsible to that owner merely because she maintains the demised land in the condition in which it came to her? A reference to the case of Meyer v. Ilarris, 32 Vroom 83, is a sufficient answer to the question. It is held in that case that “A tenant for years is not responsible in damages to a third person for maintaining and keeping in repair upon the demised premises a structure erected thereon by his landlord, prior to the commencement of his term, which operates to the nuisance of such third person."
The demurrer to the second and third counts must be sustained.
Is beth the plaintiffs and the demurrant have been partially successful, no costs will be awarded to either party.
Fitzgerald Spear Co. v. Kelly.
81 N. J. L.
FITZGERALD SPEAR COMPANY V, PETER J. KELLY.
Argued November 1, 1910—Decided March 23, 1911.
A contractor engaged in the building of a church rectory neglected to
pay for lumber obtained by him for use in the building. The materialman then refused to make further deliveries. The rector of the church thereupon promised to pay the materialman for ail lumber which he should thereafter furnish to the contractor, and which should be needed for the completion of the building. Held, that the rector's promise was an original undertaking to pay his own debt, and not a promise to pay the debt of the contractor, and, therefore, was not required to be in writing under the statute of frauds.
On error to the Warren Circuit Court.
Before GUMMERE, CHIEF JUSTICE, and Justices VINTURN and TRENCHARD.
For the plaintiff in error, Martin P. Deulin.
For the defendant in error, George H. Peirce.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The defendant, Kelly, was the rector of St. Rose's Roman Catholic Church at Oxford Furnace. A written agreement was made between the church and one Lennon for the building of a rectory for the use of the church corporation as a home for its rector. Lennon procured from the plaintiff a considerable quantity of lumber to be used in the erection of the building. Failing to pay for the same, the plaintiff refused to supply any more lumber to him until it had received something on account. Thereupon, according to the testimony offered on behalf of the plaintiff, the defendant, Kelly, promised to it to pay the entire lumber bill if it would furnish and deliver to the building the materials required for the completion of Lennon's contract. The plaintiff accepted this offer and delivered the material. The plaintiff had a verdict and judgment.
The principal question presented by this writ of error is whether the case is within the statute of frauds; that is, whether the promise sued on was a promise by Kelly to pay the debt of Lennon. If it was, admittedly the defendant cannot be held, for the promise was not in writing. In the leading case of Hetfield v. Dow, 3 Dutcher +10, it is said: "If A purchase goods to be delivered to B, or promises to pay for goods that may be purchased and received by B, it is an original contrací on the part of A, and the promise need not be in writing; it is an original engagement to pay his own debt, and not the debt of B.” In the present case, the recovery was had for materials delivered by the plaintiff to the rectory building after the promise made by Kelly. To the extent that the promise was to pay for these materials, it was an original engagement by Kelly to pay his own debt, and not the debt of Lennon. The recovery against him for this sum was therefore properly permitted.
The contention on the part of counsel for plaintiff in error that in making this promise Kelly was a mere agent of the church is, we think, without force. He made no attempt to bind the church. The obligation which he assumed was a personal one. The judgment under review will be affirmed.
HARRY V. TAYLOR v. MARY A. THORNTON.
Submitted December 1, 1910-Decided March 23, 1911.
1. A judgment entered upon the report of a referee is not open to
attack upon the ground that the oath taken by the referee did not conform to the requirement of the statute. A party desiring to take advantage of such a defect in the proceeding should do so
by applying to set aside the referee's report when it comes in. 2. A judgment so entered will not be reversed upon the ground that
the matter in controversy between the parties was not a proper subject of reference, when no objection, upon that ground, was raised at the time the reference was ordered, or during the proceedings before the referee.
Taylor v. Thornton.
On error to the Union Circuit Court.
Before GUMMERE, CHIEF JUSTICE, - and Justices TRENCHIARD and MINTURN.
For the plaintiff in error, John J. Stamler.
For the defendant in error, Paul Q. Oliver.
The opinion of the court was delivered by
GUJMERE, (IEF JUSTICE. This is an action upon a mechanics' lien. When the case came on for trial the Circuit Court directed a reference upon the ground that matters of account were involved. Frederick Staggart was appointed referee; the case was heard before him and he submitted bis findings. No exception to the referee's report was taken by cither party and a judgment was entered thereon in favor of Tavlor and against Thornton. The latter now attacks the validity of the judgment; and her first assignment is that the judgment should be reversed because the referee was not sworn according to the statute in such case made and provided. The statute requires that “In every case referred by rule of court each referee shall, before he proceeds to the business of the reference, take an oath or affirmation faithfully and fairly to hear and examine the cause in question, and make a just and true report according to the best of his skill and understanding." The oath of the referee in the present case appears in the record returned with the writ, and an examination of it discloses that it does not comply with the letter of the statutory requirement, the words “hear and" being omitted, bis affidavit being that he would "faithfully and fairly examine the cause in question,” &c. ('onceding that the oath taken by the referee varies substantially from the provision of the statute, the defendant, if she desired to take advantage of that fact, should liave applied to set aside the report for lack of jurisdiction of the referee. Runyon v. llodges, 17 l'room 339. This she did not do, but, on the contrary, as has been already stated, made no objec