author: Katzeotach, J.

text:
    George H. Engelhard, receiver of Schroeder & Rogers, complainant-appellant, v. George J. Schroeder, May D. Schroeder and Morris Rogers, defendants-respondents.
    [Submitted November 25th, 1920.
    Decided February 28th, 1921.]
    1. Grounds of objection to a decree not presented in the court below, or set forth in the petition of appeal, need not be considered by a court of review.
    2. An assignment after the dissolution of a firm by one partner without the consent of the other partner of specific accounts due the firm to a creditor of the firm is valid.
    3. In equity the running- of the statute of limitations against the obligations of a partnership is suspended pending proceedings by a receiver of the partnership for settlement of the partnership affairs.

      On appeal from a decree of the court of chancery.

      Messrs. Oouli & Smith, for the appellant.

      Messrs. Ziegner & Lane and Messrs. McCarter & English, for the respondents.
   The opinion of the court was delivered by

Katzeotach, J.

This is an appeal from a decree in chancery. George F. Sehroeder and Morris Rogers were partners in a business conducted in the city of New York. The partnership agreement expired on December 1st, 1917. May D. Sehroeder, the wife of George J. Sehroeder, had advanced to the partnership’ and to a preceding partnership, in which Sehroeder and Rogers were members, upwards of $8,000. On January 5th, 1918, Sehroeder assigned to his wife accounts due the firm to the amount of $20,000 as security for the firm’s indebtedness to her. On January 19th, 1918, Rogers instituted in the supreme court of .New York an action against Sehroeder for the dissolution and liquidation of the firm. In this suit a receiver was appointed. The New York receiver, for the reason that Mr. and Mrs. Sehroeder resided in New Jersey, filed in the court of chancery of this state a bill making-May D. Sehroeder, Sehroeder and his former partner, Rogers, parties defendant. The purpose of the bill was to set aside the assignment of the firm’s accounts to Mrs.• Sehroeder. The bill alleged that the assignment was void; that the advances of Mrs. Sehroeder were not to the firm but to her husband; that the assignment was made to hinder creditors, especially one Pirosnick, to whom the firm was largely indebted ; that by reason of the conflicting claims of Mrs. Sehroeder and the complainant, the firm’s debtors were refusing to make payments of their accounts.

Mrs. Sehroeder filed an answer to the bill denying its allegations, and also filed a eounter-elaim against the complainant, alleged the collection by him of accounts due her and praying that he account to her for these collections. Sehroeder filed an answer denying the allegations of the bill. Rogers, by answer, admitted the matters set forth in the bill and joined in its prayers. A New Jersey receiver was then appointed, who proceeded to collect the accounts previously assigned to Mrs. Schroeder. After hearing testimony the vice-chancellor held that Mrs. Schroeder had advanced the moneys to the firm and not to her husband, reserved the question as to the validity of the assignment for further consideration, and made a reference to a special master to ascertain the amount due Mrs. Schroeder. The special master reported that there was due to Mrs. Schroeder the sum of $9,327.18 (intending to report as the correct amount $8,-327.18), of which $1,800 should not be paid until Mrs. Schroeder had discharged the liability of the firm upon a note for this amount. To this report exceptions were taken by the complainant. These exceptions were heard by an advisory master (the former vice-chancellor) and tentatively overruled. At this time the advisory master did not decide the question as to the validity of the assignment by Schroeder to his wife. Subsequently, the advisory master permitted additional testimony to be taken on the question of the validity of the assignment and then in final conclusion overruled all of the exceptions to the master’s report which he had previously tentatively overruled and confirmed the findings of the master. The advisory master had further found that Pirosniclc, under his agreement with Schroeder and Rogers, was a partner, and that the assignment of January 5th, 1918, of the firm’s accounts to Mrs. Schroeder was valid. The advisory master also held that if the moneys collected from the accounts by the New Jersey receiver were insufficient to pay Mrs. Schroeder that the deficiency should be paid her by the complainant from the moneys he had obtained from the accounts. Fiom the final decree embodying these findings the complainant has appealed.

The first ground of appeal is, that the court of chancery could not make a decree affecting the question of the title to the partnership property or determine the amount due Mrs. Schroeder, as Pirosniclc was not a party to the suit.

We think there is no merit in this contention. It is not raised by Pirosniclc, but by the complainant, who took no exception to the master’s finding. The complainant could have made Pirosnick a partj' if he had so desired. He did not do so. He cannot reverse a decree for an omission for which he is responsible. If Pirosnick had been made a party it would have in no way changed the result as to the right of Mrs. Sehroeder as a creditor. Pirosnick took part in the proceedings, testified before the special master and court, and his personal counsel was present at the proceedings. He could have been admitted as a party upon his application. Moreover, this is not a ground for reversal set forth in the petition of appeal, and was not raised in the court below. It need not be considered here. Boice v. Conover, 63 N. J. Eq. 273.

The second ground of appeal is, that-the assignment to Mrs. Sehroeder of the accounts is void. The assignment was made in New York State and is governed by the law of that state. The-appellant argues his appeal on this point upon the theory that the assignment to Mrs. Sehroeder was an assignment of all the firm’s assets, and could not legalty be made by one partner. That the assignment is one of all the firm’s assets is not the fact. The bill of complaint filed by the appellant admits there were assets of the firm other than the accounts which were assigned to Mrs. Sehroeder. The authorities cited by the counsel for the appellant, to the effect that one partner cannot make a general assignment of all the firm’s assets for the benefit of creditors are, therefore, not applicable. The following New York cases uphold the right of one partner after dissolution of the partnership to assign to a creditor firm assets without the consent of the other partner: Mobbett v. White, 12 N. Y. 442; Bennet v. Buchan, 61 N. Y. 222; Lofters v. Benjamin, 122 N. Y. Supp. 275; Loeschigk v. Hatfield, 51 N. Y. 660; Bulger v. Rosa, 119 N. Y. 459.

The law of New Jersey is to the same effect. Davis v. Megroz, 55 N. J. Law 427; Nathan v. Bacon, 75 N. J. Eq. 401. In our opinion the assignment of the accounts to Mrs. Sehroeder was valid.

The third ground of appeal relates to the allowance to Mrs. Sehroeder of a sum of $1,800 represented by a promissory note for that amount made by the former firm upon which she was an endorser and held by one Monis, upon the condition that the note be paid by Mrs. Schroeder. The contention is now made that since the litigation over the partnership affairs began the note has been barred by the statute of limitations. The note was dated September 5th, 1913, and the final decree in this suit made August 13th, 1920. The appellant insists that this item for this reason should be eliminated. This contention is inequitable. The holder of the note appeared in the proceedings, produced the note, evidence regarding it was taken before the special master and court, and the special master reported on it, and his report was confirmed by the advisory master. The holder of the note had every reason to believe that the proceedings were to result in payment of the obligation he held, and paiunent would have been made had it not been for the action of the complainant in instituting the present proceeding. In Kirkpatrick v. McElroy, 41 N. J. Eq. 539, this court, speaking through Mr. Justice Depue (afterwards chief-justice), with reference to the running of the statute of limitations, said:

“The suit being brought for the enforcement of a legal right, with respect to which the statute of limitations would be a bar in a court of law, the statute will be available in bar of relief in a court of equity (McClane v. Shepherd, 6 C. E. Gr. 76; Knox v. Gye, L. R., 5 H. L. 656, 674), unless the running of the statute was suspended by the proceeding in the court of chancery for the settlement of the partnership' affairs. As a general rule, the mere appointment of a receiver to take charge of property in dispute will not suspend the operation of the statute (Anon., & Atk. 15) nor will it interrupt the possession of a stranger so as to prevent the statute conferring title on him, or suspend the running of the statute against a stranger. Harrisson v. Duignan, 2 Dru. & War. 295; Kerr Rec. 172. But where the receiver is appointed to take charge of an estate for the purpose of administering it, as, for instance, the settlement of the affairs of a partnership and the payment of firm debts, the suit being substantially for the benefit of all the creditors, in analogy with an ordinary creditors’ bill, the appointment of a receiver with such powers will suspend the running of the statute (Sterndale v. Hankinson, 1 Sim. 393, 398; Wrixon v. Vize, 3 Dru. & War. 104); and. the lapse of time before proceeding against the receiver in the court by which he was appointed will be regarded only on the question whether the creditor has been guilty of laches in delaying the prosecution of his demand.”

We are of the opinion that under’ the circumstances of the present case the note is not barred by the statute of limitations.

The fourth ground of appeal is, that Mrs. Schroeder did not advance to the partnership of Schroeder & Rogers all of tire moneys found by the decree to be due her, but some of the moneys were advanced to a former partnership' composed of Schroeder, Rogers and one Abramowitz. The contention is made that the assets of the firm of Schroeder & Rogers cannot be used to pay the debts of the former partnership, of which Abramowitz was a member. This objection to the decree below urged in the brief filed by the appellants is not made a ground of appeal, and appears not to have been brought to the attention of the court below. It, therefore, requires no consideration here. Boice v. Conover, 63 N. J. Eq. 273; Cumberland Lumber Co. v. Clinton Manufacturing Co., 57 N. J. Eq. 627; Insurance Co. v. Semple, 38 N. J. Eq. 575.

The fifth ground of appeal is, that the court erred in directing the complainant to pay to the receiver appointed by the court of chancery the amount collected by him from the accounts assigned to Mrs. Schroeder. We see no error in the decree in this respect. The New York receiver admitted he had collected a number of the accounts included in the Schroeder assignments. He voluntarily came into this jurisdiction and submitted to the court the question of the validity of the assignments and the amount due Mrs. Schroeder. The court was perfectly within its rights to embody in its decree the payment to Mrs. Schroeder of the amount collected by the complainant from the accounts which at the request of the receiver the court had determined belonged to Mrs. Schroeder. Mrs. Schroeder was put to the expense of this litigation by the action of the complainant, a.nd it was proper for the court to afford her the protection it could from further litigation by disposing of all the questions relating to the accounts and the disposition of the moneys derived therefrom.

This disposes of the questions raised in the petition of appeal The decree will be affirmed, with costs.

For affirmance—Trenohard, Parker, Bergen, Ivaltsch, Black, Katzenbach, White, Gardner, Ackbrson—9.

For reversal—The Chief-Justice, Swayzb, Minturn, HepPENHEIMER, WILLIAMS-5.


source: Caselaw Access Project

author: Katzenbach, J.

license: Public Domain

text:
    Anna Pinkinson, complainant-respondent, v. Jacob Pinkinson, defendant-appellant.
    [Submitted November 25th, 1920.
    Decided February 28th, 1921.]
    1. A wife must show in a suit for alimony under the statute, first, that her husband has abandoned her, or separated himself from her without justification, and second, that he has refused or neglected to maintain and provide for her.
    2. In a suit for alimony under the statute, the court will consider in the disposition of the cause the evidence of the parties as to a cessation of marital relations, although the evidence is uncorroborated.
    On appeal from the court of chancery advised bjr Vice-Chancellor Fielder, and reported in 91 N. J. Eq. 281.

      Mr. Joseph- Xraemer, for the appellant.

      Mr. Frank E. Bradner, for the respondent.
   The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from a decree of the court of chancery for the payment to the complainant-respondent of alimony, under the statute, by the defendant-appellant. The complainant and defendant were married in June, 1909. One child, a girl of eight years of age, is the issue of the marriage. The serenity of their married life was brief. Within two years differences arose, due, principally, to the presence in the home of the defendant’s mother, who assumed the entire domestic management of the household. The presence of the mother-in-law and her domination of the household were the principal elements in causing two separations, which were both terminated at the complainant’s request. The last truce was made about May 1st, 1918. The old differences after this reunion were not buried, and the disturbing element, the mother-in-law, still remained a member of the household and in control of the husband’s purse. The complainant procured employment as a saleswoman in a department store. She claims this was necessary to obtain money for her clothing and food. The allowance made to her by the defendant during this period1 was $2 a week. 'At this time the defendant was in receipt of a weekly salary of $75. About June 1st, 1919, the complainant left the home of the defendant, assigning, as the immediate cause, a ten days’ unexplained' absence of her husband and the refusal of her husband’s mother to provide her with food. About a year prior to the actual separation, according to the defendant’s testimony, marital intercourse had ceased. The defendant returned at the time his wife was leaving with the child, but made no overtures for them to remain.

For a wife tó prevail in a1 suit for alimony, it is necessary for her to show, first, that her husband has abandoned her, or separated himself from her without justification, and second, that he has refused or neglected to maintain and provide for her. Anshutz v. Anshutz, 16 N. J. Eq. 162; Weigand v. Weigand, 41 N. J. Eq. 202.

In the present case the evidence is" amply sufficient to find, as the vice-chancellor hearing the cause did, that the defendant had neglected suitabty to maintain and provide for his wife. She was not receiving in his home proper food. The defendant was giving his wife $2 per week, although in receipt of a weekly salary of $75. A wife whose husband is possessed of this income should not be obliged to work as a saleswoman, or be obliged to purchase from her earnings the necessaries of life. The more difficult question in the case is whether the defendant has abandoned or separated himself from his wife within the meaning of the statute so as to entitle her to a decree for alimony. The complainant left her husband. It is the duty of the wife to live with her husband at his home and to give him her services and society. From these obligations she is only relieved if she can show that the conduct of her husband has been such “as will reasonably convince the court that her life or health was in danger or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions.” Taylor v. Taylor, 73 N. J. Eq. 748.

The testimony of the conrplainant and the defendaait is considerably at variance. The defendant admits that about two years after their marriage he found that they were not happily married. He testified at the hearing that he would neither provide a home for his wife or live with her. These admissions, taken in connection with his admission that a year prior to the separation he had ceased to have intercourse with her1, and the evidence of the relations existing in the household, to which reference has been made, justified, we think, the complainant in separating fronr her husband and constitute an abandonment of the complainant by the defendant, within the meaning of the statute.

The evidence of the cessation of marital relations rests upon the uncorroborated testimony of the parties. In a recent case, decided in this court, Stieglitz v. Stieglitz, at the June term, 1920, and reported in 92 N. J. Eq. 292, this court held that a divorce on 'the ground of desertion would not be granted upon the uncorroborated admission or testimony of a party to -the suit that no sexual intercourse had been had, where the parties bad remained under the same roof and slept in the same bed during the period of the alleged constructive desertion.

In the present case there is no corroboration of the testimony of the parties that prior to the separation they had ceased intercourse. We do not, however, feel that in taking into consideration this evidence we are running counter to the opinion of this court in Stieglitz v. Stieglitz. In that case the parties sought a dissolution of the marriage relation. The dissolution of the marriage relation is a proceeding which the law does not favor. The present proceeding is not one seeking a dissolution of the marriage relation, but one to uphold an obligation implied by the relation. The cessation of intercourse is but one element or factor to be taken into consideration in reaching a conclusion upon the question involved. We are, therefore, of the opinion that it is proper under such circumstances to consider the testimony of the parties on this subject, although uncorroborated.

The decree is affirmed.

For affirmance—The Chibe-Justice, Swayze, Trenoitard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbaci-i, Wi-iite, I-Ibppenheimbr, Williams, Gardner—13.

For reversal—None.


author: White, J.

text:
    James Williams, petitioner-appellant, v. Amanda Williams, defendant-respondent.
    [Submitted March term, 1921.
    Decided June term, 1921.]
    Witnesses should not be permitted to reiterate their testimony under the guise of rebuttal; consequently, in a divorce case, the petitioner’s failure to recall in rebuttal his witness who testified in chief, in order that she might, by repeating her testimony, rebut defendant’s contradiction of it, is not a corroboration of such contradiction.
    On appeal from the court of chancery.

      Mr. George A. Douglass, for the appellant.

      Mr. Edward B. Groll, for the respondent.
   The opinion of the court was delivered by

White, J.

This is a. petition by the husband for divorce on the ground of the adultery of his wife. He is a hotel cook employed (since leaving Asbury Park) in a hotel in Summit, whence he came once each week to his home, in Newark, where he had his family, consisting of his wife (the defendant) and two children, aged four and five'years respectively.

After coming from Asbury Park, where petitioner and his family lived nearly four years, they occupied rooms on the third floor of 78 East Kinney street, Newark, about three months, during which time the corespondent, David Aildn, with Ms wife, lived on a lower floor of the same house. In June, 1917, petitioner and his family moved to 194 Sherman avenue, Newark, where their flat consisted of a front room, two bedrooms and a kitchen. Petitioner was away at his employment at Summit during the week, and in a short time the corespondent, Aildn, left his wife and came, first, for his board, and afterward for his lodgings, also, to petitioner’s flat where defendant says she took him as a boarder. There was evidence by at least one disinterested witness that defendant introduced Aildn as her brother, which he was not. There was also evidence by disinterested witnesses that defendant and Aildn were affectionate towards each other and acted like lovers during the absence of petitioner.

On a night in February, 1918, petitioner, according to his testimony, came home on Tuesday night about ten-thirty, instead of on Saturday, as he usually did. He knocked at the door ten minutes before his wife let him in, and then she tried to prevent his going beyond the bedroom where the two children were sleeping. He pushed into the other bedroom, however, which had one double bed in it, the condition of which indicated that two people had recently occupied it, and on into the adjoining front room where he found “David Aikin sitting in a chair with no socks on and his pants over his pajamas, with his head hung down; he never raised his head to say a word’” Petitioner says he then called across the hall to their landlady, who came over, and petitioner said to her, in the presence of Aikin and of his wife, “it is a shame that David Aikin broke up his home and come and broke up> mine.” That neither Aikin nor defendant made any reply. The landlady testified that she was sitting with her daughter in her kitchen about ten-thirty at night when petitioner came across the hall and called her to their kitchen; that she found defendant in a very angry mood and greatly excited, walking in and out dressed in a kimono over her nightgown with no stockings on; that petitioner then said, in the presence of all three of them, “Here is a man that has broken up his own home and now he comes here and breaks up mine,” and that Aikin “did not say a word; he sat with his pants over his pajamas and no top shirt on and in his bare feet, and he sat this way [illustrating;] with his head down and his anus folded and he never said a word;” that then defendant said to petitioner’, “If you don’t like Mr. Aikin here, don’t bother me; I don’t want you here, get out; I don’t want you here, you have no right here, and especially at this hour of the night.” The petitioner’s testimony was corroborated in other important particulars by two other disinterested witnesses. There was also much other testimon}’’ tending to indicate improper relations between the defendant and the corespondent.

Defendant denied the adultery, although her testimony admits most of the important episodes testified to by petitioner and his witnesses, and attempts to explain away their apparent significance. But in all important respects she is uncorroborated in her denial. She said, however, that it was she and not the petitioner who called in the landlady on the night when petitioner unexpectedly came home, as above described; and the learned vice-chancellor thought the fact that the landlady was not recalled in rebuttal to contradict this statement indicated that it was true, and that it therefore being the wife who called in the third party, she would hardly have done so had she been guilt}'. The opinion (which was delivered orally immediately upon the closing of the case) indicates that this incident of the failure to recall the landlady was the deciding factor in the mind of the vice-chancellor. We think that in this he was led into error by overlooking the fact that the landlady had already testified in petitioner’s case in chief to all that she could have said in this respect had she been recalled, viz., that it was the petitioner and not the defendant who called her in on the night in question. Under these circumstances she could not properly have been recalled in rebuttal simply to repeat what she had already said. That would have been to contradict a contradiction by a mere repetition of the original testimony, “Witnesses should not be permitted to reiterate their testimony under the guise of rebuttal.” 38 Cyc. 1344, citing People v. Van Ewan, 111 Cal. 144.

With this mistaken element eliminated the defendant’s case seems to us to stand upon her bare unsupported denial of the criminal act. and such a denial is not, in our judgment, under all the circumstances here involved, sufficient to overcome the case made out by the petitioner and several disinterested corroborating witnesses, which, standing alone, we think entitled him to a decree in his favor. Being satisfied, therefore, that there was evidence of the essential elements, and a clear weight of the evidence establishing the commission of the'offence, the decree is reversed and the cause remitted to the court of chancery in order that a decree may be entered granting the divorce prayed for.

Eor affirmance—The Ci-iiee-Justice, Swayze, Trencitard, Parker. Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer,, Williams—12.

For reversal—None.


author: Per Curiam.

text:
    Solomon Doctorman et al., appellants, v. Walter L. Schroeder et al., respondents.
    [Decided June 20th, 1921.]
    On appeal from a decree of .the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    “I think it would be conceded by any one that the aim of a court of equity appropriately would be always to relieve a purchaser, who had failed to comply strictly with the terms of a contract, from the forfeiture of his right to purchase a property, if it should be in- the power of the court to do so. Thai, is especially so in a case of this nature where the failure consisted of a -neglect to make a tender of purchase-money at the hour named in the contract, and where the purchaser was prepared to pay the money approximately a. half-hour after the expiration of the time limit agreed upon. If there can be said to be lodged in a court of equity power to relieve the complainant in this case from that default, obviously, it should be clone: such a default could only be a source of substantial damage to an owner in case a new purchaser on more favorable terms could be found during the period 'of default, or new conditions had led the owner to wish to be relieved of the duty of sale.
    “The single question, then, which is presented for consideration, to my mind, is whether this court has the power, after parties have deliberately and solemnly contracted to the time when a payment should fall due under a contract,■ and equally deliberately and solemnly agreed upon the consequences that should flow from a failure to pay at the time, to say that different consequences shall flow from such a default, even though the default is only a matter of minutes. Obviously, if the default has been waived a different situation exists, but, in the absence of a waiver, it seems to me a court of equity is powerless to come to the relief of a purchaser of property who has failed to pay at the time specified in the agreement, when the agreement distinctly and clearly provides that that time is essential and that the purchaser’s rights as purchaser shall cease and become void unless payment is made at the time stipulated.
    "In this case the contract for the sale of this land 'provided for the second payment, a payment of $1,500, on the 19th of December, 1919, $500 having been prior to that time paid down by the purchaser. On that day Mrs. Doctorman, the purchaser, was unable to raise the $1,500 which she. was required to pay by the terms of the contract. In that contract the parties had specifically stipulated that unless that specific $1,500 should be paid on that day, then all moneys paid on account ‘shall be forfeited and this agreement shall, be null and void, otherwise to remain in full force and effect.’ And in a subsequent part of the agreement it is again, in another form, stipulated to the same effect by a clause stating that time shall be considered the essence of the contract. I am mistaken. That clause appeal’s in the forepart of the clause I was first reading from.
    "Clearly, there is nothing unlawful in a purchaser agreeing that she shall lose her right to buy a property if she fails to pay on a given day. I am not now discussing, and shall not discuss, because it is not involved in this case the question of the rights of the purchaser under such circumstances, in the event of a default to recover back the money already paid, but so far as the agreement relates to the loss of the right of the purchaser to buy the property in the event of failure to pay an installment at a time agreed upon, it seems to me there can be no doubt of the rights of the parties to so contract and of either party to stand upon his rights under such a contract; and when that time has arrived and the payment has not been made, it is the privilege of the owner of the property to either accept the pa3rment at a later day or to treat the contract as null and void. I cannot see that there is the slightest doubt about that.
    "In this case, the purchaser, the complainant in this suit, being unable to pay on the 19th of December the entire $1,500, induced the owner' of the property to accept $500 and extend the time for the payment of the remaining $1,000 of that installment, and the parties entered into a supplemental agreement to that effect, and in that agreement, in language which is probably as apt and as powerful and explicit as can be drawn, it is stipulated that the $500 is received—referring now to the language of the agreement—
    “ ‘Upon condition that the further sum of $1,000 cash is to be paid by said Fannie Doctorman, the purchaser, to the said owners not later than the hour of two-thirty p. M., on Saturday, December 20th, 1919, at the rooms S0-S2 Eeal Estate and Law Building, Atlantic Oity,. N. J.,’
    and at the end of that agreement there is added this further clause: Tt is further distinctly understood and agreed that time shall be the essence of this receipt.’ The agreement is written in the general form of a receipt, although it contains these stipulations. The concluding part of what I was reading is as follows:
    “ ‘The. said sum of $500 is received with the further understanding that the said Walter L. Sehroeder and Anna M. Sehroeder do not in any way waive their rights or interest in said agreement, and if the said balance of $1,000 is not paid as herein mentioned, then all moneys paid upon account of said agreement and this sum of $500 shall be forfeited by said Fannie Doctorman, and said agreement of sale shall immediately become null and void.’
    “Now, there it is stipulated, in language as plain as the' English can be written, that the extension of time is conditional and that the rights of the purchaser of that property shall be-null and void unless the $1,000, which should have been paid on the 19th is paid on the 20th, not later than the hour of two-thirty in the afternoon of that clay.
    “All 1 have said touching such an agreement, when I was commenting upon the original agreement, is equally applicable to the supplemental agreement. There is nothing unlawful or illegal in such an extension, in such an agreement, in such covenants, or in such stipulations. If the parties see fit to provide that default of payment by a certain hour of a given day shall terminate the rights of the purchaser, I know no reason why they cannot agree to it. I can see no possible legal objection to it. It is in their power, as all of the authorities hold, to make time the essence of the contract. The parties have clearly done so in this supplemental agreement in every way that can be done.
    “It transpired that the purchaser defaulted at two-thirty on the afternoon of the day named in the supplemental contract, the hour when payment should have been made under the terms of the supplemental contract. Now, what was the effect of that default: I do not recall of ever having seen any case which has discussed the subject of a stipulated hour for payment with the consequences stipulated for failure to pay upon that hour or minute, but the principle must be the same as a stipulation to pay on a given day. The time limit is fixed and the contract between these parties is that the payment must not be made later than that hour, whereas in fact the purchaser undertook to make the payment later than the time stated. That attempt, it seems to me, was entirety ineffectual, unless, of course, there was some waiver upon the part of the owner of the property.
    “It is contended here, however, that there was such a waiver. I have listened with g'reat interest to Mr. Coulomb’s argument, to the effect that the circumstances that the owners of the property remained at the place appointed for some half-hour after the hour designated in the contract amounted to a waiver, because it indicated a condition of mind upon their part showing their intention to permit the purchaser to perform should she come in during the period that they determined to wait. I may almost say that I regret that I am unable to reach the conclusion that counsel urges; but I see no element in that situation that contains the necessary requisites of a waiver.
    “When the time expired within which payment should be made the rights of the owners were to accept payment at a later hour or refuse to accept payment at a later hour, according as they might choose, no matter what their motives and purposes were. It may be that had the purchaser arrived five minutes after the appointed time that they would have been inclined to have accepted payment. Who knows? It may, be that ten minutes after they would not have done so. But whether they would or whether they would not their rights, if they- have any rights in the matter, were to accept payment or to refuse to accept it. The latter they did. Approximately, a half an hour after the tune, probably about forty minutes after, an effort was made upon the part of the purchaser to induce them to take the money and they refused to do so. Now, how is it material wliat their reasons were? I think I know what the reasons were. There are no two witnesses who have testified to the same things; a large number of people were present at that time and every one of them has narrated what transpired in more or less modified form, hut I think I know the truth.

      “I am very well convinced that the facts are that the owners of the property before the hour named for the payment on the 20th had become more or less dissatisfied with the purchaser, they had become pretty well convinced that the purchaser was not responsible. Her failure the day before to meet her engagement looked to them as though she was not responsible, and altogether they were not pleased with the person whom their agent had found as purchaser for this property and with whom they had entered into this contract. That, of course, was no ground for .them repudiating the contract, and they went to the appointed place with the intention of performing, providing the payment was made as it should have been made. After the appointed hour they waited, perhaps under some persuasion upon the part of Mr. Campbell; perhaps because they were not entirely apprised of what their rights might be and were a little fearful to go off and ignore the possibility of the purchaser appearing later, so they waited; they waited for nearly half an hour, when a statement was made by the agent that if the purchaser-did. not appear there would not be any harm done, because he knew another man who would take the property. That is what probably happened. And it was then that the owners saw a chance to get rid of the proposed purchaser that they were dissatisfied with and they grasped at that opportunity. Accordingly, a little later, perhaps about three o’clock, when the purchaser came in and went into the other room and returned after a short period with a proposal to pay the money, the owners had determined to avail themselves of the opportunity which they had to get rid of the purchaser, because she was behind in the time of performance. And there was then probably said all that some of the witnesses have referred to. Some of the witnesses have quoted .'what was said with reference to the reason why the owners would not accept the money. The real reason, however, to my mind, was that they saw the opportunity—the owners saw the opportunity—to get rid of a purchaser they did not like and they availed themselves of it.
    “Now, I hold that it was their right to avail themselves of such an opportunity. They lawfully did it.
    “So far as the defendant Ridgway is concerned, 1 am unable to see how his rights can rise any higher than the rights of the Scliroeder?, a? owners. Mr. Ridgway, at least, knew all about the. prior contracts and the rights of the purchaser under the contract. Knowing that, if he saw fit to rely upon the statement of any one other than complainants, to the effect that complainants had forfeited their rights under that contract, he did so at his peril. He surely had notice that put him upon inquiry as to whether Mrs. Doetorman had any claim of right under her contracts; and failing to make that inquiry he purchased, to my mind, subject to whatever rights it should be determined Mrs. Doetorman had against the Schroeders.
    “I, therefore, base my decision in the case entirely upon the theory that when the hour for performance arrived and complainant failed to perform her rights under the contract ceased at the option of the owner.
    “I will advise a decree dismissing the bill.”

      Mr. Ilarry Cassman, for the appellants.

      Mr. Clarence L. Cole and Mr. Theodore W. 8chimpf, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Ci-iiee-Justice, Swayze, Parker, Bergen, Minturn, Kalisoi-i, Black, Iyatzenbaci-i, White, Heppeni-ieimer, Williams, Gardner—12.

For reversal—None.


text:
    Edward F. Duncan, respondent, v. Mary Murphy et al., appellants.
    [Decided June 20th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    “This suit involves the construction of the second clause of the will of Louisa Bominuller, which clause reads as follows •
    “ ‘Item: All of my estate of whatsoever kind and nature and wheresoever situate, I give, devise and bequeath to my friend, Edward F. Duncan, for his use, comfort and maintenance during the term of his natural life; and after his death I give, devise and bequeath my said estate or the residue thereof to my two daughters, Mary Murphy and Annie Hall, in equal shares, to them, their heirs and assigns forever.’
    “The contention of complainant is that Edward F. Duncan is by this clause of the will given not only a life estate in the real and personal property of testatrix but also the right to sell part or all of the real and personal property and to use the proceeds of sale for his own benefit when such sale should he found necessary to provide for his own support.
    “The personal property consists of a few household furnishings of no substantial value. The real estate is of small value and produces a gross rental of approximately $20 per month.

      “It will be observed that the devise and bequest is expressly for life. In consequence the decisions relating to devises and bequests, in language indeterminate as to the quantity of the estate, are without application. It is not hero claimed that the devisee enjoys a fee.
    “The claim is that the gift over of the ‘residue’ taken in connection with the other language used discloses an intent upon the part of testatrix to empower the devisee to convert so much of the real estate and personal property into cash by its sale as may be found necessary to provide suitable support for the devisee.
    “The various decisions relating to the force to be given to language which may imply a right to sell and appropriate the proceeds of sale in a gift which is expressly for life and which is followed by a gift over of the residue will be found to be almost uniformly resolved on the special circumstances of each case. Where the gift has been of personal property only, the word ‘residue,’ or ‘remainder,’ contained in the gift over, has been deemed to refer only to possible loss from use or from shrinkage of investments, and, in consequence, importing no right of the life tenant to sell; where the gift has been wholly of real estate there appears to have been no escape from the conclusion that the ‘residue,’ referred to in the gift over, related to land not disposed of by the devisee, and, in consequence, imported a right upon the part of the life tenant to sell. Bryan v. Bryan, 67 N. J. Bq. J+5, was of that nature. But where the gift has included both real and personal property greater difficulties have been presented which have been as a rule resolved on some special feature of the case, the tendency apparently being to regard the words ‘residue,’ or ‘what remains,’ contained in the gift over, as referring to loss or shrinkage of the personalty arising from use or depreciation of investments, in the absence of anything' indicating to the contrary in any part of the will. Richards v. Knighi, <0Jf N. J. Eq. 196, was of that class, although in that case the words ‘what shall remain,’ as there used in one clause of the will, was deemed to refer to the personalty by appropriate grammatical construction.
    “In the present case the gift to the first taker is of both real and personal property; it is expressly fox life; the gift over is of the ‘residue thereof,’ and no specific gift is made of any part of the property which would create a ‘residue thereof.’ Testator thus clearly anticipated some diminution of the amount of the property during the period of the life tenancy, and that diminution could only be at the hands of the life tenant. Did testatrix refer to the ordinary diminution of the personalty by its use by the life tenant—there was no personalty that could suggest shrinkage of investments, since it consisted wholly of household equipments—or did she intend that the legatee and devisee should enjoy the right to appropriate such part of the gift as should be found necessary for his maintenance? I think the language of the will considered' as a whole fully discloses the latter intent. The gift is of the entire estate of testatrix and is defined by testatrix to be for ‘his use, comfort and maintenance during tire term of his natural life.’ The gift over of the residue, read in connection with the expressed purpose of testatrix that the gift to the life tenant should be for his maintenance, appears to me to impel the conclusion that testatrix intended that the life tenant should be privileged to have the propel^ so given applied to his use to whatever extent might be found necessary for his maintenance. Indeed, the gift included so insignificant an amount of personalty that any suggestion that the word ‘residue’ may have referred to its depreciation from irse seems wholly inappropriate.
    “The evidence at the hearing adequately disclosed that the life tenant at this time is too feeble to work and is in positive need and that a sale of the entire propei^ is necessa^ for his maintenance. In these circumstances he should be privileged to sell the real and personal estate, to the end that the proceeds of sale may be applied to his support.
    “In Schubert v. Wood, Jdxecutor (unreported), b3r opinion filed December 27th, 1918, I had occasion to point out the rights of the respective parties in interest in similar circumstances. I there said:
    “ ‘But such power of disposition does, not, in itself, destroy the estate over. In such circumstances the estate over is a vested remainder, so far as the quality of the estate is concerned, to the same extent as though no power of disposal had been conferred upon the life tenant; the power of disposal is operative on the possibility of enjoyment in possession by the remainder-man, and in no way upon the enjoyment in right. For the quality of a veste'cl estate in remainder see Voorhees v. Singer, 7S N. J. Eq. 58® 7-

      “I will advise a decree in conformity with the views herein expressed.”
    .1 It. Austin H. SicacMamer, for the respondent.

      Messrs. Avis & Avis, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—Ti-ie Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbaci-i, White, Heppenheimer, Williams, Gardner—11.

For reversal—Swayze, Bergen—2.


text:
    Robert L. Flemming, appellant, v. Carmine Iuliano et al., respondents.
    [Decided June 20th, 1921.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:

      “The bill of complaint is filed to foreclose a mortgage dated July 15th, 1916, given to James McElroy and Maud McElroy, his wife, covering lands in this state. The bill alleges that James McElroy died intestate December 8th, 1917; that no letters of administration were granted on his estate, and that on November 28th, 1919, his wife, said Maud McElroy, assigned the mortgage to complainant. There is no allegation that prior to the time of such assignment she had acquired any interest in the mortgage in addition to her original interest, and there is no allegation that complainant holds the mortgage under any claim or title other than said assignment to him. The defendants to the suit are the present owners of the land and a subsequent mortgagee and they now move to strike out and dismiss the bill of complaint on the ground that the legal representatives of James McElroy, .deceased, have an interest in the mortgage and are therefore necessary parties to this suit.
    “This objection to the bill of complaint is well taken. On the' facts set out in the bill, McElroy and his wife held the mortgage as tenants in common and not as joint tenants, and upon his death one-half interest therein became vested in his legal representatives (Aubry v. Schneider, ■69 N. J. Eq. 639) ; and if they have not assigned such interest, they are necessary parties to this suit. I shall, however, not strike out or dismiss the bill, but I shall permit complainant to amend, either by setting up any further facts upon which he bases his claim to sole ownership of the mortgage, or if he has no such legal claim, by adding the legal representatives of James McElroy as parties to this suit.
    “Defendants mar'' have costs on their motion.”

      Mr. Joseph Anderson, Sr., for the appellant.

      Mr. Albert J. Grosso, for the respondents.
   Per Curiam.

The order annealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For ajfLrnicmoe—The Chibe-Justice, Swayze, Trenci-iard, Parker, Minturn, Kalisoh, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner—12.

For reversal—Bergen—1.


text:
    George H. Grundy v. Ida May Grundy.
    [Decided June 20th, 1921.]
    On appeal from a decree of the court of chancery.

      Mr. Walter L. McDermott and Benjamin LLeyman, for the appellant.

      Mr. Merritt Lane and Mr. Marie Townsend, Jr., for the respondent.
   Per Curiam.

This is a suit for divorce brought by a husband against his wife. The hearing before the court of chancery resulted in a finding that the charges of adultery alleged to have been committed by the defendant on August 24th, 1919, with one Jacob Levine, and the further charge of a like offence committed by her on September 15th, 1919, with one John F. Evans, were each of them sufficiently proved, and a decree in favor of the husband was entered accordingly.

A careful examination of the proofs submitted leads us to the conclusion that this decree cannot be supported. There was no direct evidence of an adulterous act committed by the defendant with either of the alleged corespondents. We find nothing in the proofs which justifies the conclusion that prior to the commission of the alleged acts of infidelity the defendant had any affection for either one of these corespondents, or that her earlier association with either the one or the other was suggestive of impropriety. In this situation of the proofs the most that can be said of her conduct upon the two occasions which are made the basis of the charges against her, is that it was indiscreet and ill-advised. But, as was said by Chancellor Green, in the frequently-quoted case of Berckmans v. Berckmans, 16 N. J. Eq. 122, 140: “Mere imprudence, indiscretion or folly is not conclusive evidence of guilt. The mind of the court must be satisfied that there was an intimacy between the parties entirely inconsistent with the duty which a virtuous wife owes to herself and to her husband. The facts proven must be such as cannot be reconciled with the probability of the innocence of the parties. In order to prove adultery by circumstantial evidence, two points are to be established—the opportunity for the crime and the will to commit it. Unless both are established the court will not infer guilt.” In the present ease, although the opportunity was shown to exist, there is, 0,s we think, an entire failure of proof that the will to commit the adulterous acts existed.

We conclude that for the reason indicated the decree under review should be reversed.

For affirmance—Kaltsci-i—1.

For reversal—The Chibe-Justice, Swayze, Trench ard, Parker, Bergen, Minturn, Black, Katzenbach, White, Heppeni-ieimer—10.


text:
    Matilda T. Landis, executor, &c., appellant, v. Cumberland Trust Company of Bridgeton, trustee, &c., et al., respondents.
    [Decided June 20th, 1921.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinar}r Learning, who filed the following opinion:
    “The principal controversjr herein is whether the provisions .of the first paragraph of the will of Charles K. Landis, deceased, touching services rendered by his sister, entitles her to receive interest on $500 from the termination of each year of service rendered by her.
    “The will was drawn in 1898; the paragraph of the will here in question reads as follows:
    “ T hereby order that all my just debts be paid, and that among these debts be reckoned five hundred dollars per annum to my sister, Matilda T. Landis, from the year 1875, for taking care of my children, myself and aged parents as housekeeper, and also the sum of eighteen hundred dollars with six per cent, interest for Pennsylvania railroad stock which she loaned me in time of much distress, in 1877, which I sold’and have not paid her for.’
    “This provision of the will is clearly no more than a statement by testator of certain obligations to his sister, which he desires to recognize, and a, direction that in the settlement of his estate the obligations so recognized by him shall be classified as debts.
    “One obligation testator specifically describes as interest bearing at six per cent, per annum from its inception; touching the other no reference is made to interest. If interest is to be added on $500 from the end of each year of service it must be on the theory of a contract, express or implied, to pay for each year’s service at the end of each year; in that event interest would be added as damages for breach of the contract to ¡Day for the service at the end of each of the several annual periods of service. But no contract for payment for the services rendered is referred to by testator, and no- evidence of any contract, either express or implied, for payment for the services rendered, exists unless it is to be inferred from the terms of the will above quoted.
    “I think it clear that the direction of testator that the rate of compensation stated by him be 'allowed to his sister as a debt against his estate for the services she had rendered him as housekeeper during the period specified affords no justification for the inference that the services were in fact rendered under contract or in expectation of monetary payment, and were not in fact rendered by the sister as a voluntary service of affection. Much less is the inference justified that there existed any express or implied contract of payment of $500 per year at the end of each year. Testator states no more than that he desires $500 per annum from the year 1875 allowed as a debt against his estate for the services of his sister referred to. To enlarge the amount of the debt to be allowed against the estate by adding interest from the end of each year’s service is to assume the existence of contractual relations between testator and his sister which testator has not defined and which no evidence has established. I am fully convinced that the language adopted by testator .in defining the amount of the obligation which he wished reckoned as a debt against his estate must be understood ■as referring to the aggregate amount ascertained by the rate of $500 per year for the aggregate period of service.
    “Since the service continued until the death of testator a claim should have been allowed in favor of the sister as a debt of the estate due at that time for the amount .ascertained .as above stated.- The status of that debt would then necessarily be the same as any other debt against the estate of like class due at that time. It is not a legacy, since it is expressly directed by testator that it is to be reckoned as one of the debts of his estate. As a debt of the estate due at the death of testator it will draw interest from that date on the aggregate amount ascertained in the maimer already stated. With the amount of his debt ascertained in this manner the amount of the surcharge is a mere matter of mathematical calculation. If the principal has been reduced from time to time by partial payments, interest, of course, ceased on the amounts so- paid from the times of such payments.
    “The charge for commissions is clearly without legal support. These include $1,200 withdrawn by executrix on December 18th, 1909, and $344.25 withdrawn on June 30th, 1906.
    “It is also clear that the orphans court properly reserved to exceptants the right to renew certain objections at a proper time.
    “The decree of the orphans court appealed from is accordingly confirmed in all things except as to the surcharge for services as housekeeper. Tha.t surcharge, ascertained as herein directed, may not be the exact amount contained in the decree. To ascertain that surcharge with exactness the orphans court should now calculate the amount due for interest in the manner hereinabove stated and deduct that amount from the amount which appears in the accounts of the executor as having been withdrawn as interest. The excess of withdrawal will, of course, bear interest' against executrix from its date of withdrawal. If the accounts on file, which were not made a part of the record on appeal, do not disclose the dates when the principal was withdrawn by the executrix, the orphans court may proceed to ascertain such dates in aid of the calculation of interest due on the debt.
    “With these instructions the record will be remitted to the orphans court. Since the decree of the orphans court is substantially accurate, and appellant fails in her grounds of appeal, respondents will be entitled to costs.”

      Mr. Herbert C. Bmálett and Mr. Charles K. Lamáis, Jr., for the appellant.

      Mr. James S. Ware, Mr. Lever eit Newcomb and Mr. William J. Kraft, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Learning.

For affirmance—Ti-ie Chibe-Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Black, Katzenbact-i, White, Heppeni-ieimer, Williams, Gardner—-12.

For reversal—None.


text:
    Randolph Perkins and Anna V. R. Green, complainants-respondents, v. Sarah L. Robertson, Maud I. Wagner and Deal Beach Realty Company, a corporation, defendants-appellants.
    [Submitted March term, 1921.
    Decided June term, 1921.]
    On appeal from the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 92 N. J. Eq. 526.

      Mr. Robert II. MeO'ca-ter and Mr. William M. Rysclylc, for the appellants.

      Messrs. Ileyman & Ileyman, for the respondents.
   Per Curiam.

Vice-Chancellor Griffin, by an opinion filed in the court of chancery, rendered a decision of the principal contention in this case in favor of the respondents upon three grounds, viz.-—• first, that the contract alleged by the defendants was not proved, and second, if proved it was without consideration, and third, if proved performance was prevented by the subsequent acts of the defendants themselves. We agree that the decree should be affirmed, for the reasons stated by the learned vice-chancellor under tire first and third grounds above enumerated. Upon the question whether if a contract had been proved it would have been supported by a valid consideration we expiress no opinion. The decree is affirmed, with costs.

For affirmance—Ti-ie Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbach, I-Ieprenheimer, Williams, Gardner—12.

For reversal—None.


text:
    John V. Rice, Jr., appellant, v. Charles Mitsch et al., respondents.
    [Decided June 20th, 1921.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following opinion:
    “Complainant by his bill alleges himself to be the equitable owner of certain real and personal property recently conveyed to defendant Swift by defendant Mitsch—the legal title to the same being in the latter at and prior to such conveyance, and held by him as security for the repayment by complainant of such balance (if any) as remained unpaid, of the moneys .advanced by Mitsch at complainant’s request, in acquiring the title to the property in question. He asks an accounting to. determine what balance, if any, is due from himself to Mitsch, and a decree, for the reconveyance of the property to himself upon his payment of that balance. Defendant Swift is alleged to have bought from Mitsch with notice of complainant’s equitable interest. Restraint against conveyance by Swift is also-prayed, and an order for such restraint pendente lite was granted on a preliminary application.
    “It appears by the proofs that in 1915 the executors of one-Nathan Ha-ines held judgments against Rice, Mitsch and others, on which Rice was the debtor actually liable as amongst the several judgment debtors, and also- held a certain real estate mortgage and two chattel mortgages as collateral for the payment of the judgment debts. The judgments aggregated $8,-242.37; Mitsch, however, being judgment debtor only as to-about $4,000 thereof. The real estate mortgage held as collateral was for $3,000, covering property of the value of about $12,000, then owned bjr one Cromwell, but occupied by .Rice under a contract of purchase from Cromwell. Rice still owed a balance of $2,000 of the purchase price. The mortgage had originally been made by Cromwell to third parties and had been purchased by Rice, and later assigned by him to the judgment creditor as collateral.
    “As to the chattel mortgages the evidence is not as clear as it might be, but, apparently they had been made by Rice to Haines as security for moneys borrowed to purchase certain'machines, and the indebtedness 'which they were originally given to secure had been reduced to the $8,242.37 before mentioned. They covered machines installed in a factory erected on tire premises comprised in the real estate mortgage. In 1915, and for some-years prior thereto, these machines [and, possibly, the factory building] were owned by a corporation called the Rice Gas Engine Company, in which Mitsch and Rice were both interested.
    “About February, 1915, the Haines executors took steps to collect the money due them on' the judgments, and Mitsch, at the solicitation of .Rice, borrowed money from the bank and paid the amount due on the judgments, taking assignments of the judgments and of the collateral. It was also arranged at the same time that Mitsch should pay Cromwell the $2,000 balance of unpaid purchase price. This was in fact earned out, although, because of various delays, he did not get the deed until toward the close of the year.
    “In the latter part of the year 1915, also by arrangement between Eice and Mitsch, Mitsch had the judgments and the real estate mortgage canceled of record, and held a foreclosure sale of the machinery covered by the chattel mortgages, becoming, himself, the purchaser of these machines for the price of $8,000, as shown by the bill of sale from the bailiff. Then a lease was made of the machines and the factory, and that portion of the lands on which the factory stood, to one of the war-time ammunition companies, for a rent of some $600 a month, received by Mitsch. Eice continued in possession of the remainder of tire lands, including the dwelling-house thereon, paying no rent therefor. Mitsch, out of the rents received by him, paid substantial amounts monthly to Eice, and used the balance for the taxes, insurance and other expenses of the property, and for the reduction of the indebtedness incurred by him in obtaining the moneys to purchase the judgments, collateral and real estate, as previously mentioned, and also for the reduction of certain other indebtedness incurred by him on Bice’s account prior to 1915.
    “The contention of the complainant, Eice, is that the arrangement between himself and Mitsch was that Mitsch should hold the title to the lands and machinery simply as security for the reimbursement of the moneys paid out in the acquisition and maintenance of such lands and machinery and should convey all of the property in question to Bice as soon as the reimbursement should be completed. He also contends that this reimbursement has in fact already been had by Mitsch out of the rents received.
    .“Mitsch’s contention is that he was to procure out of the property in question repayment not only of the amounts stated by Eice, but also of some $12,000 of other indebtedness from. Eice to himself [this $12,000 debt, Eice claims, was extinguished by an executory agreement dated September 23d, 1913, performance of which, however, admittedly, had not been made by Eice prior to the commencement of this suit; and had been refused by Mitscli when tendered after the filing of the bill herein], and that a sale of the property was to be negotiated by Rice within three years, and the proceeds of such sale over and above the amount necessary to pay the indebtedness were to be divided equally between himself and Rice; that the sale, not having been made within the three years, he, Mitsch, now has absolute title to the property.
    ‘T think that a closer examination of the nature of the actual transactions of 1915, as disclosed by the admitted or uncontroverted facts and circumstances, will be of value in arriving at a determination of the matters at issue.
    “As to the real estate, worth from $12,000 to $15,000, Cromwell held the legal title, subject to the $3,000 mortgage, and had also a vendor’s lien for the unpaid $2,000 of the purchase price. The Haines executors had title to the $3,000 mortgage, but only as collateral security for the judgment debts. Rice had the equity in the mortgage [subject to the payment of the judgment debts], and had the equity in the premises [subject to the mortgage and subject to the vendor’s lien]. His interest in the real estate, therefore, was of the approximate value of $7,000 as long as the assignment of the mortgage remained outstanding.
    “As to the machinery and other chattels, legal title was in the Rice Gas Engine Company, subject to the chattel mortgages held by the Haines executors. The indebtedness secured by the chattel mortgages had been reduced to the $8,300 of the jrtdgment debts. The value of the chattels covered by the mortgage, Rice sa3rs, was over $50,000. Assuming that, as between Rice and the gas engine company, the latter was obliged to pay the $8,300 judgments held by Haines against Rice, the company owned an equity in tire chattels of over $40,000; Rice’s only interest in these chattels, if and after the $8,300 should be paid to Haines, being as the owner of three shares of stock in the company [out of an outstanding issue of somewhere between seven thousand and ten thousand shares].
    “Assuming that there-was no agreement for Mitsch to hold any of the property as security for other than the amounts then presently advanced, then when Mitsch paid the $8,300 and took tlie assignment from the Haines executors, he merely stepped into their shoes. If the Rice Gas Engine Company [which we have assumed to be the party ultimately liable for the $8,300] paid Mitsch the $8,300, Mitsch would have had to cancel the chattel mortgages, and Rice would have-been entitled to receive back his $3,000 mortgage against the real estate. But as to the agreement which Mitsch says was made by Rice, that Mitsch should also hold this collateral as security for the prior indebtedness of $12,000 of Rice to him, it is, of course, obvious that Rice had no power or authority to make such a disposition of the property of the Rice Gas Engine Company. It would have been invalid, as ultra vires, if made by that company itself, giving accommodation security for Rice’s personal debt.
    “Mitsch proceeded to foreclose the chattel mortgages by sale. Rice testifies that before the sale he ‘requested Mitsch,’ and ‘arranged with Mitsch,’ to purchase the mortgaged chattels for him, Rice, at the sale, and Mitsch ‘consented to do so.’ He also testifies that he, Rice, arranged with the ammunition company [the then lessee and operator of the mortgaged chattels] not to bid at the sale, and also arranged with one Bartlett, the secretary and treasurer of the Rice Gas Engine Company, of which Rice himself was president, that that company, the owner of the $-10,000 equity in the chattels, should not bid.
    “It is apparently upon this last-mentioned promise or ‘consent’ of Mitsch to purchase the machinery for Rice that Rice bases his claim to equitable ownership- of the machinery and his prayer for a conveyance thereof. [Doubtless, Rice did not mean by this testimony that Mitsch did not have the right to hold the machinery as security for the $8,300, or the $10,000; it is one of many instances of loose or wild statements which makes his testimony unreliable.] Where, however, is there any consideration to support such a promise by Mitsch and make it enforceable? There is no evidence of any consideration whatever. Rice put up no money or other thing of value; Mitsch purchased with $8,000 of the $8,300 owed him by the gas engine company as the balance of mortgage debt. Rice did not give Mitsch the right to purchase—Mitsch had that already. The only thing that appears as even colorable consideration is the act of Rice in keeping bidders away from the sale SO' that Mitsch could buy cheaply. But such action on Rice’s part, if it was a part of a 'contract’ between himself and Mitsch, is illegal and invalid as any consideration to support Mitseh’s alleged promise—it was a barefaced fraud on- the gas engine company, of which Rice was president and director.
    “I am entirely satisfied from the testimony that that is precisely what the scheme was on Rice’s part—to have Mitsch foreclose and sell the machinery; have him buy it in at a nominal ■figure and hold it for the benefit of Rice, or Rice and Mitsch— thus personally acquiring at the expense of the gas engine company the value of that company’s equity in the machines; and that is precisely the scheme that was earned out. I am by no means sure that Mitsch knew or understood the real nature of the transaction. Mitsch is a man of little education and of no high order of intelligence—he had faith in Rice, and Rice’s promises, and Rice’s knowledge of financial matters, and relied upon Rice to get back the monejrs he had advanced for so many years. However, Mitsch’s guilt is but of little moment—it is the hands of complainant that are under scrutiny. It need scarcely be said that the aid of equity will not be extended to obtain for complainant the fruits or any part thereof of any such fraudulent project. That a denial of relief to Rice in this behalf leaves Mitsch in possession of the property may be regrettable from a broad viewpoint, if Mitsch is guilty together with Rice, but it would not help the gas engine company to take from Mitsch to give to Rice. On the other hand, a denial of relief to Rice is not a refusal of aid to the gas engine company, which is not a party to this suit.
    “Complainant’s counsel urges that Rice has offered to consent that the property be decreed to be reconveyed to the gas engine company. I do not recall any such offer. "What Rice did say was, T am going to turn that [the machinery] over to them [the company] except the house I reside in; it has been my intention all along.’ But if there was, or is, any such consent, the difficulty is that the Rice Gas Engine Company is not a party. 'Mitsch has given no such consent, and the rights and liabilities as between Mitsch and the gas engine company have not been in issue and cannot be determined in this suit. '
    “As to the real estate the circumstances were somewhat different, but the result it seems to me must needs be the same. The evidence, to my mind, is overwhelming that Rice had the conveyance made by Cromwell to Mitsch in order to hinder, delay or defraud his, Rice’s, creditors. There was no other reason why the title should have been put in Mitsch’s name. Mitsch put up- $8,300 for the judgments and collateral and had agreed to put up the $2,000 for the acquiring of the real estate. He had ample security for the $8,300, the chattel mortgages on property worth much more than $8,300 [according to Rico, worth $50,000] ; the $3,000 real estate mortgage, the judgments against Rice and the other judgment debtors. The $3,000 mortgage on the real estate would in itself have been ample security for the $2,000 he was putting up-, or Rice could have given him a separate $2,0t)0 purchase-money mortgage. Rice says he didn’t think of doing this, but that is not credible. It is not in accordance with what the evidence shows to have been his nature and habit, which was to get rather than to give without necessity; and from his long experience in financial dealings and devices it is impossible to believe him when he says he did not think of giving a $2,000 mortgage instead of a deed. Rice also-says it was because The ammunition company wanted it that way.’ This, again, I cannot believe. It could not concern the ammunition company whether the title were in Rice or Mitsch, as long as they had both been properly bound to the lease. The attorney who acted for the ammunition- company was not called to testify nor his absence explained. Mr. Swaim, the attorney who acted for Rice and Mitsch, says that the ammunition company wanted title to the machinery to be in Mitsch, but makes no such statement as to the real estate. He does say that Mitsch insisted [in .conversations between Swaim, Rice and Mitsch] on having a conveyance of the title instead of a mortgage because Mr. Bartlett and Mr. Butts were about to bring suits for large amounts against Mr. Rice, and Mr. Mitsch felt that the money he was about to put up would not be secured in the shape of a mortgage. [This, it will be noted, contradicts Rice’s statement that die never thought about giving Mitseh a mortgage.’] Of course, a deed as security was of no greater value than the mortgage would have been, and it by no means follows that Mitseh really believed it would be. It would be very improbable that Rice and Mitseh would disclose to a reputable attorney a scheme to defraud creditors, even if Mitseh was not a guilty' party to such a scheme. Rice might well have told Mitseh that he would be more secure with a deed. Mitseh says that he was to get absolute title to the property; that Rice was trying to see that he, Mitseh, was paid for his previous loans no matter what happened to the other creditors.
    “However, we are not so much coiicerned with Mitseh’s testimony ; of course, if it be true, and- Rice turned over to him the equity in payment for previous debts, then Rice is not entitled to get it back. But Rice, the complainant, is the one asking for relief in this court. By his own admissions on the -witness-stand he owed some accounts [including a board bill of over $700 and a hotel bill, in Trenton, of over $100]; there were numerous judgments against him, and creditors were pressing him, and there were these imminent suits against him by Butts and Bartlett for large amounts. With all this in mind, coupled with Rice’s contradictory explanations above mentioned, it is impossible to believe otherwise than that his idea and endeavor in having Mitseh take title [if he were not making payment to Mitseh] was to keep the property away from the reach of his creditors. It is, therefore, the typical case of a suitor coming into a court of equity with unclean hands, and he will not be heard.
    “Not being entitled to relief against Mitseh, he is, of course, not entitled as against Swift, and a decree will be advised dismissing the bill.”

      Mr. Linton Satterthiumle, for the appellant.

      Mr. Harold B. Wells and V. Claude Palmer, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.

For affirmance—The Chibe-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, ELalisoii, Black, Katzenbaoi-t, White, Heppeni-ieimer, Williams, Gardner—13.

For reversal—None.


text:
    John A. Reinhard, Jr., petitioner-appellant, v. Laura E. Reinhard, respondent.
    [Submitted March 21st, 1921.
    Decided June 20th, 1921.]
    The facts proven in this case held to entitle petitioner to an absolute divorce.
    On appeal from a decree of the court of chancery dismissing a petition for divorce on the ground of adultery.

      Mr. Hanry TJnger, for the petitioner-appellant.

      Mr. Herbert Parvin, for the respondent.
   Per Curiam.

No question of law is involved in this case; the only controversy is as to the credibility and sufficiency of the evidence on behalf of the petitioner as showing facts entitling him to a divorce on the ground of- adultery, over the denial of respondent and evidence in her behalf.

The vice-chancellor to whom the cause was referred for trial held that the petitioner had not sustained the burden of proof; but we find ourselves constrained to take the other view.

Discussion of the details of the evidence would serve no good purpose. It is sufficient for present needs to say that we find entirety satisfactory evidence of desire and opportunity from which, under settled rules, infidelity will be inferred; opportunity, in the undenied facts that the defendant assisted the paramour in hiring lodging near her place of abode where she and he could conveniently meet; that she was introduced to the landlady as his wife and that the landlady paid no attention to her coming and going in consequence; desire, in the evidence of the petitioner, corroborated by his friend, as to what they saw through the window of the bungalow. This evidence the trial court rejected partly on account of what was considered its inherent improbability, partly because of some confusion in .the testimony about weather conditions which, when resolved against the petitioner, brought in the testimony of respondent’s witnesses that she was in their company at the time alleged. We are unable, however, to disregard the force of the detailed statements of those two eye-witnesses, substantially unshaken on cross-examination, especially in view of the acknowledged intimac.y of defendant with the wife of the paramour, admittedly a common prostitute. The discrepancy, if there bo one, about the weather conditions, is one of the details about which witnesses constantly differ in their testimony and is of no controlling force.

The answer alleged condonation, but any attempt at proof in that regard related to an earlier period and other accusations which we need not notice here.

We conclude that adultery was sufficiently proved and that petitioner is entitled to a divorce. Let the decree be reversed and the cause remanded to the court of chancery for proceedings in conformity with this opinion.

For affirmance—Bergen, Minturn, Black, Katzenbaci-i

For reversal—The Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Kalisch, White, Hepbenhbimer, Williams, Gardner—9.


author: Per Curiam. Gardner, J.

text:
    Donald J. Sargent v. Frances L. Sargent.
    [Decided June 20th, 1921.]
    On. appeal from a decree of the court of chancery.

      Mr. Merritt Lam, for the appellant.

      Mr. Alexander Simpson, for the respondent.
   Per Curiam.

Donald J. Sargent, the present appellant, filed his petition in the court of chancery charging his wife with having committed adultery on several occasions in September, 1918, and on later dates, up to July, 1919; with one Charles Simmons, a chauffeur in his employ. He also charged his wife with acts of infidelity committed with another man, whose identity is concealed under the pseudonym of “Mr. X.” At the hearing the appellant abandoned the charge of meretricious relations existing between his wife and the latter person, and confined himself to an attempt to prove illicit intercourse with, the man Simmons. The advisory master before whom the case was heard, after a consideration of the very voluminous testimonj'' submitted, reached the conclusión that the appellant had failed to prove the charges against his wife by evidence sufficiently convincing to justify the granting of a decree in his favor. Our examination of the proofs sent up with the appeal satisfies us that he was justified in this view. The wife was surrounded by servants in the employ of the husband, some of whom at least were active in his behalf for the purpose of discovering actions on her part suggestive of illicit relations existing between her and Simmons. So-called detectives were employed for the same purpose by him, and some of them also were installed in the home in which both of the parties lived. Notwithstanding this constant spying on her-, no direct evidence of adultery was discovered and only two occasions were testified to in which the facts are claimed to indicate infidelity on her part. But, in our opinion, the most that can be said with relation to her conduct on these two occasions-, looked at in the aspect most unfavorable to her, is that it was injudicious and indiscreet. It was not inconsistent with the probability of innocence on her part.

The decree under review will he affirmed.

Gardner, J.

I vote to affirm the decree below on the ground that the specific charges of adultery were not proven.

For affirmance-—The Chiee-Justice, Swayze, Bergen, Minturn, Black, Katzenbaci-i, White, I-Ieppeni-ibimer, Gardner—9.

For reversal—Parker, Kalisci-i, Williams'—3.


text:
    Carl Schefrin, respondent, v. Philip Wilensky et al., appellants.
    [Decided June 20th, 1921.]
    On appeal from a decree of tlie court of chancery.

      Messrs. Weinberger <£• Weinberger, for the respondent.

      Mr. George G. Tennant and Messrs. Sullivan & Sullivan, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis, whose opinion is reported in 92 N. J. Eq. 109.

For affirmance—The Ci-iie,e-Justice, Swayzb, Trenoi-iard, Bergen, Minturn, Tyalisch, Black, PIeppeniieimer, Williams, Gardner—10.

For reversal—Parker, Katzenbacii, White—3.


author: Per Curtam.

text:
    Edward J. Turner, trustee, &c., et al., v. Ridge Heights Land Company et al.
    [Decided June 20th, 1921.]
    On appeal from a decree in chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 92 N. J. Eq. 64.

      Mr. Luther Shafer and Mr. Merritt Lane, for the appellants.

      Mr. Edward P. Johnson, Jr., and Mr. Walter Carroll Low (of the New York bar), for the respondents.
   Per Curtam.

The complainants filed their bill to foreclose a mortgage made by the Ridge Heights Land Company to Andrew H. Brinkerhoif, trustee, and afterwards assigned by him to Turner, one of the complainants, as trustee for the Rutherford Natioual Bank. The bill was. dismissed upon the ground that the mortgage had been given as collateral security for the payment of a promissory note of the land company, which was made by it for the accommodation of a corporation- known as the Addison-Ely Company; and that this note had been paid and satisfied before the filing of the bill. The material facts in the case are accurately set out in the opinion of the learned vice-chancellor and fully support the conclusions reached by him, for the reasons stated in that opinion, to which we have nothing to add.

The latter part of this opinion, however, is devoted to a consideration of what would have been the status of complainants’ mortgage, in case it had been adjudged an existing encumbrance upon the mortgaged premises, with relation to the liens of certain junior encumbrancers who had been made parties to the bill. Holding, as we do, that- the lien of the complainants’ mortgage was discharged by the payment of the note which it was given to secure, this question has become purely academic, and, consequently, has not received consideration by us.

The decree under review will be affirmed.

For affirmance—The Chief-Justice, Swatze, Trenciiaed, Parker, Bergen, Minturn, Iyalisci-i, Black, Katzenbach, Wi-iite, I-Ieppeniieimer, Williams—12.

For ■ reversal—N one.


author: Walker, Chancellor.

text:
    John H. Stewart, petitioner, v. May H. Stewart, defendant.
    [Decided July 20th, 1921.]
    :l. While a divorce will not be granted upon the uncorroborated testimony or admission of a party to a suit, yet the admission in a plea of guilty to a charge of adultery in a criminal court is made under the sanction of the law and the protection of the judge and cannot be presumed to be procured by the husband’s coercion or to have been made through collusion with the other spouse, and, therefore, it is substantive evidence in a divorce suit against the party who made it.
    2. A plea of guilty of adultery amounts to a conviction of the defendant making it, as conviction means the confession of the accused in open court or the verdict returned by a jury, which ascertains and publishes the fact of guilt; a judgment denotes the action of the court in which the plea is made or verdict rendered.
    3. A plea of guilty to a charge of adultery in a criminal court is. in a suit for divorce based upon the same adultery, substantive evidence against the party pleading it and is sufficient to prove the charge and support a decree of divorce.
    4. A mistake in the opinion in State v. Henson, 66 N. J. Law (at p. 609), pointed out.
    On final hearing ex parte on master’s report in divorce.

      Mr. J. Vincent Barniit, for the petitioner.
   Walker, Chancellor.

This is a suit for divorce for adultery, the proof of which resides in the plea of guilty to a charge of that offence made in the Passaic county quarter sessions. The defendant, on being arrested. made application to be tried before the court of special sessions, waiving indictment and trial by jury. The prosecutor preferred an allegation of the state against the defendant charging her with adultery, to which., on being arraigned, she pleaded guilty and was sentenced to a term in the women’s reformatory. These facts were properly proved by the production of the record, and the question is, Is the plea, of guilty of adultery substantive evidence against the party pleading it in a suit for divorce based on that same adultery, and is it sufficient to support a decree? I make no doubt that it is.

In State v. Henson, 66 N. J. Law 601, Mr. Justice Van Syekel, speaking for the court of errors a.nd appeals, in treating of the effect of a plea of non vult, observed (at p. 609) that the only difference between that plea and the one of guilty was in the force each had upon a collateral proceeding, citing Peacock v. Hudson Sessions. 46 N. J. Law 112. And in that ease Mr. Justice Reed, speaking for the supreme court (at p. 113), observed that the implied confession in a plea of non vuli is only for the purpose of the prosecution in the course of which it is entered, while the plea of guilty in that form may be used against the defendant in a civil suit, citing 1 Bish. Cr. Pro. § 802; 1 Whart. Cr. L. § 533. Mr. Justice Van Syckel, in the Henson Case (at p. 608), also says:

“A judgment founded on a plea of guiltjq or of nolo contendere, is in like manner conclusive in a subsequent criminal prosecution, but in civil suits it is not such an admission of guilt as to be evidence against the party pleading it. 2 Whart. Ev. § 783.”

The above quotation, in the Henson Case, from 2 Whart. Ev. § 783, is not literal and contains a mistake. The learned judge, who wrote the opinion in the Henson O'ase, in an evident endeavor to condense the text from Wharton, malees that learned author say that either a plea .of guilty or of non vult is not such an admission of guilt as to be evidence in a civil suit against the party pleading it. The full text from Wharton shows the reverse of this. What the learned author in fact says there is this:

“A judgment founded on a plea of guilty, or of nolo contendere, it has been held, is in like manner conclusive in a subsequent criminal prosecution. In civil suit, however, nolo contendere is not such an admission of guilt as to be evidence against the party pleading it. But a plea of guilty may, in a civil suit involving the same subject-matter, be used as an admission. 'Thus, the plaintiff, in an action for assault, may show by the record a conviction of the defendant for the same assault, he having pleaded guilty.”

Wrhile it appears that there is a contradiction in terms in the court’s opinion in the Henson Case, first, an assertion that there is a difference between the plea of guilty and that of non vult in a collateral proceeding, citing Peacock v. Hudson Sessions; which distinctly holds that non mitt is only for the purpose of the case in which it is entered, while the plea of guilty may be used against the defendant in a civil suit, and second, that the plea of guilty as well as that of non vult is not evidence in a civil suit against the defendant, yet an examination of the authority relied on for the seemingly contradictory view secondly expressed in the Henson Case (Whart. Ev.), and, lastly, above pointed out, quite conclusively shows that the learned opinion writer and the court never intended to state that a plea of guilty could not be used against the pleader in a collateral proceeding, and that that apparently expressed view was a mistake probably resulting from failure to correct the draft of the opinion before it was filed.

Hpon this question I am-clearly of opinion that the plea of guilty of a charge of adultery by a defendant in a criminal court is substantive evidence by wa.y of an admission by that defendant.

While it is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony or admission of a party to the suit (Garrett v. Garrett, 86 N. J. Eq. 293; Foster v. Foster, March term, 1921, Court of Errors and Appeals), yet the admission in a plea of guilty made on arraignment for adultery in a criminal court is made under the sanction of the law and the protection of the judge. It cannot be presumed to he procured! by the husband’s coercion, as in Summerbell v. Summerbell, 37 N. J. Eq. 603, nor can it be presumed to have been made through collusion with the other spouse; and this is the more apparent when'we know that bjr interposing such a plea the defendant at once puts himself in the situation of being- liable to a sentence of fine or imprisonment, or both. And, in the ca-se before me, the woman was actually sentenced and served a term of imprisonment.

Collusion in the law of divorce includes any agreement between the parties as a result of which m> defence shall be made to the dissolution of the marriage tie which would not otherwise be dissolved. Sheehan v. Sheehan, 77 N. J. Eq. 411. I conclude, therefore, that the admission of adultery in the plea of guilty in the criminal court was not the result of coercion or collusion and it is not an admission or confession having no evidential effect, but, on the contrary, is one which is substantially evidential against the defendant who made it.

The plea of guilty made by the defendant amounts to a conviction of the defendant of the adultery charged. Conviction means the confession of the accused in open court or1 the verdict returned by the jury, which ascertains and. publishes the fact of guilt. The judgment or sentence denotes the action of the court in which the plea is made or verdict rendered, declaring the consequences to the convict of the fact ascertained. State v. Henson, supra (at p. 607).

The judgment in the case of the state against the defendant for adultery would be res judiada against the defendant in this cause were the petitioner a party or privy to that case, but he, of course, was not and could not have 'been. Nor does the doctrine of estoppel by judgment apply; for, while the record of a judgment, as such, may be impeached by no one, whether party to the proceeding in which it was rendered or not, yet, as to the truth of the matter adjudged, it is binding only upon the parties to the record or those in privity with them.

This was an ex parte case, the defendant having defaulted in pleading, and there is therefore no denial of the adultery charged against the defendant, and her plea of guilty to that offence in the criminal court sufficiently proves the adultery laid against her in the petition for divorce; and her husband will therefore be awarded a decree nisi.