400, are applicable here. The complainant in the case now before me was advanced in years, in a feeble condition of health, nearly blind, unable to read the disputed instrument, which was prepared beforehand under the direction of the defendant, the son who expected to benefit by its execution. The complainant was obviously so unacquainted with business methods that he was unable to understand the meaning and effect of the bill of sale without careful and extended explanation. The instrument was kept by defendant in his own possession, without reading or explanation to the complainant, until the defendant was ready to have it executed. The complainant had never theretofore seen the paper; he had no opportunity to consult counsel or have the advice of any disinterested, intelligent business man. It disposes of property which produced to the complainant from $800 to $1,000 annually.

The defendant and Edmund Stites, Jr., insist that the complainant comprehended the fact that by the bill of sale he was presently giving away his one-third interest in the oyster business, upon an understanding that the defendant should allow his father to have the profits of his share (less $400 annually) as long as he lived, and that the complainant did this in order to put the defendant into the firm so that he and Edmund Stites, Jr., might control it, and thus induce Edmund Stites, Jr., not to leave the firm and set up business for himself in opposition to his father.

There is some testimony which indicates that one of the motives which led the old man to the making of the bill of sale was the assurance that it would pacify the disputes which had arisen between his two sons, Edmund Stites, Jr., and Howard. But proof of the existence of the old man's desire for peace in the family does not show that he intended by the bill of sale. presently to give away his share of the business to obtain that peace, nor does it show that when he made that instrument he understood that he was making an absolute, presently operating gift of his share in the business to the defendant.

The complainant and Howard Stites both declare that the old man was assured by Edmund and Walden that the instrument did not take effect until after his death. Mrs. Howard

Their

Stites heard some such assurance given to the old man. statements appear to me to be much more credible and consistent with the whole transaction.

The instrument itself purports to be an absolute bill of sale presently passing title to the complainant's share of the oyster business and its equipment to the defendant. It mentions no other consideration than the nominal sum of one dollar. The consideration declared by the defendant to have been a part of the bargain, i. e., a reservation to the complainant of the profits on the share conveyed to the defendant, less $400 annually, was not a valuable one. The complainant already owned all those profits.

The defendant's further contention is that the transaction was an effort by the old man to bring his sons, Edmund and Howard, into peaceful relations, a sort of harmonious family adjustment; Edmund was to abandon his purpose to start business in opposition to his father; Waldie was to give up his plan to join him; Howard was to be outvoted in the firm, and the complainant was constrained to pay for this peace by presently giving his share of the business to Waldie for nothing. Not a word of this was expressed in the written bargain. The opinion of the courts of New Jersey upon transfers of property obtained by children from a parent who is aged, infirm and dependent upon them, by threats to subject him to loss and embarrassment if he does not give his property to suit them, may be seen in the Sickles Will Case, 63 N. J. Eq. (18 Dick.) 233; 64 N. J. Eq. (19 Dick.) 791, where threats to abandon an old bed-ridden father were held to invalidate a will obtained by such methods, to be made in favor of the son and his wife, who lived with the father and made the threats.

Taking the narrative of the transaction as given by Walden and Edmund Stites, Jr., to be true, it yet remains that they obtained from the complainant this conveyance of all his share in the business without paying or agreeing to pay him any valuable consideration therefor, and upon an assurance that after the conveyance he should continue to have the income from his share during his life. It is perfectly apparent that the complainant in this transaction depended upon the defendant, who

was not only his son, but also his trusted employe. His age, his infirmities, his ignorance of such business and his reliance on the defendant made him peculiarly liable to be misled. The bill of sale, as prepared under the defendant's direction, is amply efficient to pass to the defendant the complainant's title, but makes no mention of any reservation to him of the onethird of the profits of the business during his life. All the benefits of the expressed bargain are with the defendant; none of the admitted reservations saving anything for the complainant appear in the written contract. This phase of the case is within the principles discussed and applied by Vice-Chancellor Van Fleet in Mulock v. Mulock, 31 N. J. Eq. (4 Stew.) 601. In that case three separate deeds of gift were obtained by a son to be made by his old mother to him, two of them under a belief on her part that they were releases. The defendant son testified that the mother said "she would give him the properties, but would keep the rents," and that he said, "Very well." The two deeds were, in fact, absolute conveyances of large values, reserving nothing.

The vice-chancellor held that it was the duty of the son in such a case to see that the instruments to be executed by his mother were sufficient, legally, to carry her whole scheme into effect, and also to see that she fully understood their nature, effect and consequences, and that a failure in any one of these important duties was a fraud, which must set the whole contract aside.

On appeal, 32 N. J. Eq. (5 Stew.) 360, the court of errors and appeals declared that the validity of the two deeds could not be maintained, but reversed the decree so far as it set aside the third deed, because, in the view of the court of errors and appeals, the evidence showed that deed to have been intelligently and freely made by the complainant. The principles of law declared by the vice-chancellor were not in any way disapproved. The same views have been declared in various other cases of like character, to the effect that where one who occupies the position of a caretaker obtains the person who depends upon him to convey his property to the caretaker in consideration of his agreement to render future services of support, it is

Sperry & Hutchinson Co. v. Hertzberg.

69 Eq.

the duty of the caretaker to see that the consideration which is to proceed to the dependent party is expressed with the same certainty and facility of proof as that which passes to the caretaker. Mott v. Mott, 49 N. J. Eq. (4 Dick.) 209; Hammell v. Hyatt, 59 N. J. Eq. (14 Dick.) 187; Collins v. Toppin, 65 N. J. Eq. (20 Dick.) 439.

The complainant in this cause, because of his physical infirmities, his ignorance of business methods, and the contrivance of the defendant, which required him instantly and finally to act in making the bill of sale, was in a condition of entire dependence upon his sons, particularly the defendant, whom he utterly trusted. The defendant's interests were, as is stated above, perfectly cared for by the bill of sale, but the complainant's were not only not protected, but the instrument was so drawn that they were apparently excluded.

The bill of sale should be declared a nullity, in accordance with the views above expressed.

THE SPERRY & HUTCHINSON COMPANY

V.

HERMAN HERTZBERG.

[Filed March 4th, 1905.]

1. Trading stamps are choses in action, practically negotiable orders for merchandise, transferable by all the means by which such property may be transferred. When they are issued without limitation on the power of the holders (who have acquired them as premiums from merchants with cash purchases) to transfer them, the company issuing them has no power, by a subsequent change of its plans and contracts with its customers, to limit the transferable quality of those previously issued, which have passed to dealers and traders in the regular way.

2. Where a company has issued trading stamps, made assignable without limitation, it cannot, in the absence of special legislation, prevent the use by a merchant of such stamps as may have been given by its cus

3 Robbins.

Sperry & Hutchinson Co. v. Hertzberg.

tomers to dealers and traders with them in pursuance of the contract of the company with its customers, even though such merchant be not a customer of the company, and even though such use be injurious to the business of the trading stamp company. Courts will not create novel rules of law for the protection of novel schemes of transacting business. Men must make their novel business schemes fit existing laws. It is for the legislature, and not the courts, to create new laws to protect new schemes of business.

3. The primary right claimed by the complainant, if it exists, is strictly legal, as distinguished from equitable, in its nature, and hence, being doubtful and unsettled, cannot be protected by an injunction from the court of chancery. If the rule against the use of an injunction in this class of cases at the present time has any exceptions, there are no facts on which to found such an exception in this case.

On motion for a preliminary injunction. On bill, affidavits and answering affidavits.

Mr. Addison P. Rosenkrans and Mr. W. Benton Crisp (of New York), for the motion.

Mr. David H. Bilder and Mr. William B. Gourley, contra.

STEVENSON, V. C.

The complainant is a New Jersey corporation engaged in the trading-stamp business in the city of Paterson as well as in other cities and towns throughout the country.

The defendant, the proprietor of a department store in the city of Paterson, is charged with various invasions of the rights of the complainant in respect of its trading stamps and tradingstamp business.

* * *

The order, which was made ex parte on April 22d, 1904, upon the filing of the bill, restrains the defendant from using in his business "or giving to persons who may trade or deal with him, any of the complainant's trading stamps except such trading stamps as said defendant may lawfully obtain from the complainant, or use in his business with its consent, and except such trading stamps as may have been given by the customers of the complainant to dealers and traders with them in pursuance of the contract of complainant with such customers."