the obligation and said that it would be repaid. We find no testimony in contradiction of this, and plainly should not disturb any finding made by the jury that there was such a loan and that it had not been repaid.

So far as relates to the money had and received by the deceased for the use of the plaintiff, the item is not questioned and, in fact, is conceded by counsel supporting the rule. It is not covered by any of the reasons filed.

As to whether the jury allowed an excessive amount for services rendered by the plaintiff to deceased, we think that if they were properly entitled to consider that question, the verdict is a moderate one. Taking the loan at $100 and the rents collected at $185 as conceded by defendant, the allowance for work and labor, without considering the question of interest, would be $655. The jury were entitled to find that the plaintiff had worked for the defendant over a period of five or six years, not giving to his service all of her time, perhaps, but plainly enough amply to justify the award made by the jury in that regard of $10 a month or less. The deceased was an old man, apparently on bad terms with his family, and living alone, and the plaintiff seems to have done all the necessary work about his establishment.

The really important question in the case is whether this claim for services is defeated because the deceased left her a mortgage of $300 as a legacy. It is not pretended that the services were voluntarily rendered as by a member of the household and without any promise to pay for them; on the contrary, all the evidence on the subject points to admissions made by the deceased more than once in the presence of outside witnesses that plaintiff was entitled to be paid for the services that she was rendering, and that she would be paid for them some time. If so, she had a claim clearly enforceable at law after his death unless it was satisfied by the legacy in question.

The rule is, of course, well settled that where the services are rendered on the mere expectation of a legacy and no legacy is left, there can be no recovery. Grandin v. Reading, 10 V. J. Eq. 370; Stone v. Todd, 49 N. J. L. 274, 280. On

the other hand, it is equally well settled that where services are rendered under a specific agreement to compensate for them by a legacy and no testamentary provision is made, an action will lie upon a quantum meruit. Stone v. Todd, supra; Cullen v. Woolverton, 65 Id. 279; Gay v. Mooney, 67 Id. 27; affirmed, Id. 687. The present case presents the intermediate situation of services rendered, as the jury was entitled to find, under a definite promise to pay for them by a legacy, and a legacy actually left by testator which, in the view of the plaintiff and apparently of the jury, was insufficient as compensation. Decisions embodying this feature are rare. In New York the rule laid down by the Court of Appeals seems to be that if the legacy be inadequate as payment for the fair value of the services rendered, the claimant may either refuse it and sue for the full value of such services, or may accept it in part payment and bring suit for the balance. Reynolds v. Robinson, 64 N. Y. 589; S. C., 82 Id. 103. On the other hand, the Supreme Court of Errors of Connecticut has intimated that when the claimant has agreed to accept payment for his services by a legacy not defined as to amount or character of property to be bequeathed, it was tantamount to an agreement leaving the amount of compensation to be determined by the deceased, and that if that amount afterwards appears to be insufficient, nevertheless the claimant has no right to complain. Lee's Appeal, 53 Conn. 363.

We find ourselves unable to assent to the rule as laid down by the New York court on the one hand, and are loath to adopt the apparent severity of the Connecticut rule on the other. Indeed, it is both difficult and dangerous to lay down a hard and fast rule to meet all cases of this character; for much depends upon the ascertainment of the exact agreement between the parties.

In the case at bar the jury were entitled to find upon the testimony that the plaintiff, having worked for the deceased a certain length of time without being paid, raised the question of payment and was told then, and as we understand the testimony, thereafter also, that she was going to be paid for all the work she did for him, that she would not lose anything

by staying with him. Disregarding the testimony of one witness that the deceased said that everything would belong to her when he died, it is nevertheless legitimate to read out of the conversations of the parties that plaintiff agreed to stay and work for him in consideration of his agreement that at his death she should be paid for her work. This can mean nothing more nor less than that she would receive reasonable compensation for her work under his will, and the inference cannot fairly be drawn that she left it for him to decide what the reasonable compensation for that work should be. On the contrary, it was open to the jury to say from the testimony that she did not assent to his judgment in the matter; because the evidence shows that she was present at the time his wil! was drawn and heard him dictate the provision about leaving the $300 mortgage to her, and that she asked whether that was all she was going to get, and in the language of the witness "she was not satisfied with it."/ We think the correct rule to be that where services are rendered under an express agreement to pay for them generally by a legacy without any agreement as to the amount or character of the legacy, except that it is to pay for the services, an agreement is implied that the legacy shall be sufficient to compensate for the reasonable value of the services, and the legatee may at his election accept the legacy, in which case he is estopped from alleging its insufficiency and barred of any further action; or may refuse the legacy and sue for the value of the services as on a quantum meruit. In the case at bar, as the trial judge stated to the jury, it was not contended that the plaintiff accepted the $300 legacy; and not having accepted it, she was entitled under the agreement, as evidently found by the jury, to enforce a claim for the reasonable value of the services rendered by her.

These considerations result in a discharge of the rule to show cause.

92 N. J. L. E. L. Downs Co. v. Owen Magnetic Car Co.

E. L. DOWNS CO., RESPONDENT, v. OWEN MAGNETIC CAR COMPANY OF NEW JERSEY, APPELLANT.

Argued February 19, 1918-Decided July 26, 1918.

Where the record brought up for review of a case tried in the District Court by a judge sitting without a jury simply presents a judgment based upon conclusions of the court, without any objections or exceptions entered or taken by counsel during the course of the trial or any request to find certain facts or conclusions of law, to the refusal of which objection might have been taken, the judgment will be affirmed.

On appeal from the First District Court of Newark.

Before Justices SWAYZE, TRENCHARD and MINTURN.

For the respondent, Henry H. Freyling.

For the appellant, William Huck, Jr.

The opinion of the court was delivered by

MINTURN, J. The case is before us upon an agreed state of facts by the attorneys, which shows that it was tried before the District Court without a jury, and that judgment was rendered for the plaintiff against the defendant. The court when rendering judgment filed a written statement of his conclusions. To this no objection was made or exception taken as far as the record shows; nor does the state of the case exhibit any objection or exception entered or taken by counsel during the course of the trial, or to the court's conclusions upon law or fact. Nor is there in the record any request to find certain facts or conclusions of law, to the refusal of which objection might have been taken and entered upon the record. The case simply presents a judgment based upon conclusions of the court and nothing more.

This situation clearly brings the case within the ruling enunciated in Blanchard Brothers v. Beveridge, 86 N. J. L. 561, and followed in Edwards Co. v. Excelsior Drum Works, 88 Id. 189, and Ruggles v. Ocean Accident Co., 89 Id. 180.

Hyatt Roller Bearing Co. v. P. R. R. Co.

92 N. J. L.

Chapter 62 of the laws of 1916 can have no bearing upon this situation for the obvious reason that that act contemplates that objection of some character shall appear upon the record; the evident purpose of the act being to relieve counsel only of the necessity of specifically submitting to the court the ground of objection. Here there was neither objection nor a semblance of objection.

The judgment will therefore be affirmed, with costs.

HYATT ROLLER BEARING COMPANY, RESPONDENT, v. THE PENNSYLVANIA RAILROAD COMPANY, APPELLANT.

Submitted March 21, 1918-Decided July 21, 1918.

A provision in a bill of lading, requiring the giving of notice of a claim for damages against a carrier, must be given a reasonable construction, and a substantial compliance therewith on the part of the shipper is all that is required.

On appeal from the First District Court of Jersey City. Before Justices SWAYZE, TRENCHARD and MINTURN. For the respondent, Day, Day, Smith & Slingerland.

For the appellant, Vredenburgh, Wall & Carey.

The opinion of the court was delivered by

MINTURN, J. The case was tried before the court without a jury, and the following facts were expressly or incidentally found as the basis for the judgment rendered in favor of the plaintiff. Five bundles of steel were consigned to plaintiff at its works at Harrison, in this state, on February 24th, 1916, by the Becker Steel Company of America, at Charleston, West