94 N. J. L. Englander v. Abrahamson-Kaplan Co. specially benefited whether in fact they are to be assessed or not. The question is one of definition only. We have no doubt that the proposed improvements are local improvements within the definition and that they must be authorized by ordinance. Until the municipality has the authority of an ordinance, it cannot make the improvement and it follows cannot condemn lands for the purpose. Wendel v. Board of Education of Hoboken, 76 N. J. L. 499, 501. This authority must appear in the petitions for appointment of commissioners. Ibid. The present petition fails to show authority. There is a mere incidental reference to an ordinance for a boardwalk, but whether such an ordinance has ever been adopted or whether it is only proposed does not appear. We must take the returns as complete. Wilkinson et al. v. Inhabitants of Trenton, 36 Id. 499. The necessary result is that the proceedings be set aside. The prosecutor is entitled to costs. MORRIS ENGLANDER, RESPONDENT, v. ABRAHAMSONKAPLAN COMPANY, APPELLANT. Submitted December 4, 1919-Decided February 13, 1920 Where a contract of employment is entire, but the performance is several, the employe may recover for work done and performed where the contract did not provide for payment of a lump sum at its expiration, but, on the contrary, provided for payment by the piece. On appeal from the District Court of Hoboken. Before Justices PARKER and SWAYZE. For the respondent, Samuel L. Hirschberg. For the appellant, Collins & Corbin. Englander v. Abrahamson-Kaplan Co. 94 N. J. L. The opinion of the court was delivered by SWAYZE, J. The plaintiff was employed by the defendants, who were manufacturers of ladies' suits, as a presser. He was paid by the piece-that is, each garment was represented by a ticket which the plaintiff detached and returned to the defendant, and thereupon was paid for his work, at so much a garment. There had been trouble from strikes in the trade, and to protect the defendants against future strikes the plaintiff agreed to do the pressing until the end of the season, about October 15th, and as security deposited with the defendant a Liberty bond for $50. Notwithstanding this, the plaintiff struck in August but was persuaded to continue work until the ensuing Saturday night upon a promise that he should be paid for the work done. He was not paid and brought this suit to recover compensation and also to recover the value of the bond, alleging a violation of the conditions on which it was deposited. The trial judge found in favor of the defendant as to the bond and of the plaintiff as to the compensation. The defendant appeals. It is a little difficult to determine exactly what the trial judge found and what the defendant complains of. The judge. expressly says that he does not decide that the contract was originally an entire contract, but that whatever was the intent of the parties originally, "a new agreement was entered into, or at least acquiesced in, and acted upon by both parties when the plaintiff said he was going to leave on Tuesday and they agreed to pay him for whatever work he did if he stayed until Saturday." The argument on the part of the appellant is directed to the point that there was no consideration for the new contract, since the plaintiff only agreed to do what he was already bound to do. Conceding this, the question remains whether there was legal error. The fact that the reasoning of the judge may have been faulty does not necessarily vitiate the result he reached. It is undisputed that the work was to be paid for by the piece from time to time as it was done. It is not suggested that the amount claimed was not due on the Saturday in Au 94 N. J. L. Englander v. Abrahamson-Kaplan Co. gust when the plaintiff demanded it. By the contract itself failure to pay by the defendant was a default on its part. For that default an action would normally lie at once. It is, however, suggested that because the contract was an entire contract and could not be fully performed before the middle of October, an action could not be maintained for money earned in August. The defendant's error, we think, is in failing to note that "although the agreement is entire the performance is several" (Badger v. Titcomb, 15 Pick. 409); or, as the same court elsewhere stated, is "divisible in its operation." Denny v. Williams, 5 Allen 1, 4; Barrie v. Earle, 8 N. E. Rep. 639. A leading English case where a distinction is drawn between a case like the present and a case where a lump sum is to be paid for the completed work is Appleby v. Myers, L. R., 2 C. P. 651; 36 L. J. C. P. 531. The question has been before this court (Skillman Hardware Co. v. Davis, 53 N. J. L. 144), and a result reached adverse to the present defendant's contention. We think legal principles require us to sustain the plaintiff's right of action upon the defendant's default. The defendant is protected by his right to sue for damages for breach of the contract to serve the whole term or to recoup in the present action. This he might have done by reason of the anticipatory breach by plaintiff (although this action was brought in August) but for the fact that the defendant with knowledge that the plaintiff did not mean to perform on his part, nevertheless assented to the breach, in order to have pressing work done at once, instead of treating the anticipatory breach as putting an end to the contract. Under the circumstances we need not consider whether the parties meant that the security of the $50 bond should be the defendant's only remedy for plaintiff's breach. The case bears some analogy also to short deliveries in case of a contract of sale of goods under section 44 of the Sales of Goods act. Will. Sales, § 466. Section 76 of the statute defines "divisible contract to sell." It is, we think, of some consequence that contracts to sell and contracts for work and labor should be governed by the same legal principles. It is at any rate important to adhere to the rule holding defendants to responsibility for the value of the labor of others where they have accepted the benefit with knowledge that an entire contract had not been fully performed (Bozarth v. Dudley, 44 N. J. L. 304), or would not be. Let the judgment be affirmed, with costs, and judgment entered in this court. WILLIAM J. CAVENY, ADMINISTRATOR OF MICHAEL J. CAVENY, RESPONDENT, v. JULIA HEALEY, APPELLANT. Submitted December 4, 1919-Decided February 13, 1920. The payment by a life insurance company of the amount of a policy to any one of certain classes of persons under the "facility of payment" clause, does not effect a change of the original contract by which the company agrees to pay the executors or administraitors of the insured. While the company, by such payment, discharges its liability, the person beneficially interested may recover from the person who has received the money. On appeal from the First District Court of Jersey City. Before Justices SWAYZE and PARKER. For the respondent, Frank G. Turner. For the appellant, Randolph Perkins. The opinion of the court was delivered by SWAYZE, J. The Prudential Insurance Company issued two policies of life insurance on the life of Michael Caveny. By one they insured his life and agreed to pay the stipulated benefit subject to certain conditions; one of which was that the amount should be paid to his executors, administrators or assigns unless settlement were made under what is called the facility of payment clause. That clause permitted the company to make payment to any one of certain classes of persons or to any other person appearing to the company to be equitably entitled by reason of having incurred expense on behalf of the insured for his burial or for any other purpose, and further provided that the production by the company of a receipt signed by any of said persons, or other sufficient proof of such payment, should be conclusive evidence that the benefits have been paid to the person entitled thereto and that all claims under the policy have been fully satisfied. The other policy issued nine years later is of like purport except that it insures and endows the insured. There is no question that the company has discharged itself from all liability by making payment to the defendant Julia Healey under the facility of payment clause, and no judgment was rendered against the company. The trial judge rendered judgment against Julia Healey and in favor of the plaintiff who had taken out letters of administration on the estate of Michael J. Caveny, the insured, about three months after payment by the company to Healey. The question now presented is whether the payment by the company effected a change of the original contract by which the company agreed to pay the executors or administrators of the insured. Such was not the view of this court as to the facility of payment clause in the original case. Metropolitan Life Ins. Co. v. Schaffer, 50 N. J. L. 72. We there held that the facility of payment clause operated as an appointment. both by the assured and the beneficiary of persons, any of whom are authorized to receive payment of the sum agreed to be paid. We did not there decide that such payment to one appointed to receive it changed the beneficial interest in the fund from the assured or the beneficiary or both to their appointee who was only to receive the money. To have so held would have put it in the power of the debtor, the insurance company, by its mere act, perhaps at its mere whim, to determine who should be beneficially entitled and would be inconsistent with the manifest intent to make a contract enforcible against the company. This intent appears in the |