author: Ackerson, S. C. C.

text:
    PARK GASOLINE COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. EDWARD L. CRUSIUS AND AMOS E. MAXWELL, DEFENDANTS.
    Decided January 18, 1932.
    Tor the plaintiff, Burke, Sheridan & Hourigan.

    Tor the defendant Crusius, Quinn, Parsons & Doremus.

   Ackerson, S. C. C.

This action is brought to recover upon a promissory note for $786.35 made by defendant Edward L. Crusius, to the order of the defendant Amos E. Maxwell, dated July 8th, 1931, payable one month after date at Fifth and Ocean avenues, Asbury Park, ETew Jersey, and endorsed by the said Amos E. Maxwell over to the plaintiff, Park Gasoline Company.

The complaint alleges the foregoing facts concerning said note and further states that the transfer thereof to the plaintiff was before maturity; that it is the present holder thereof; that it was presented at the time and place at which it was payable and payment was refused, whereupon it was protested for non-payment and notice of dishonor given to all parties concerned and that said note remains wholly unpaid, and that there is due thereon the sum of $786.35; protest fees, and interest.

To this complaint the defendant, Edward L. Crusius, alone has filed an answer consisting of a general denial and three separate defenses.

The plaintiff now moves to strike out this answer on the following grounds, viz., that the answer proper is sham; that the first separate defense is sham, and that the second and third defenses are sham and/or frivolous.

Taking up the separate defenses first we find that the first one of these alleges that there was no consideration for the note. It appears from the affidavit submitted by plaintiff in support of this motion that the original note of which the one in suit is a renewal was given to secure part of the purchase price of a gasoline station sold by plaintiff to the defendant, Amos E. Maxwell, and that this renewal note was. given to secure an extension of time in which to pay such part of the purchase price aforesaid, and if true this would he a sufficient consideration.

The defendant has failed to offer any competent proof of a lack of consideration. In his affidavit, referring to the note of which the one being sued upon is a renewal, the defendant said: “About three or four days prior to July 8th, 1931, Corcoran” (president of plaintiff corporation) ■“and Maxwell called at my place of business * * * and .asked about a note which Corcoran claimed to hold. I told him, in Maxwell's presence, that there was a failure of consideration in the note, inasmuch as Maxwell had not delivered the machines for which the note was given in payment.” It will.be noticed that this is merely a statement of what the .affiant alleges he told the president of the plaintiff corporation. It is not a direct statement by the affiant that there was a failure of consideration or no consideration for the note. In any event it will be noted that this quoted conversation took place before the note now being sued on was given, and the affidavit goes on as follows: “At that time Corcoran informed me that he, had placed this note” (the original) “with his bank for collection, but that he would call them and tell them not to send it. At the same time we ■arranged for Maxwell to make up the deficiency in the consideration of said note and Maxwell and Corcoran, for the Park Gasoline Company, agreed that said note could be renewed from month to month for a period of one year.” So it appears that it was agreed that the alleged deficiency in the consideration was to be made up and there is absolutely nothing in the affidavit to show that the consideration was not thereafter made up as agreed. The affidavit fails to support the defense of “no consideration,” and so far as partial failure ■of consideration is concerned, it not only is not pleaded, which is a requisite of proper pleading (13 C. J. 742, § 889), but it is not supported by competent proof, and there is nothing whatever to show or even suggest that any possible ■deficiency in the consideration was not made up before the note in suit was given.

The first separate defense is, therefore, sham and will be stricken out.

The second separate defense alleges that—

“Said note was fraudulently procured from defendant, Edward L. Crusius, under false pretenses by one Amos E. Maxwell, who represented to defendant Edward L. Crusius, that said note could be renewed without reduction from month to month for a period of one year, and the plaintiff, Park Gasoline Companjq knew of said agreement before maturity when said note, as alleged, was endorsed to it; but is now conspiring with the said Amos E. Maxwell to enforce payment thereof, although it had full knowledge of the agreement between said Maxwell and the defendant Edward L. Crusius.”1

Presumably this statement is intended to raise the defense that the note in question was procured by a fraudulent misrepresentation of an intention that said note could be renewed in full. The only affidavit submitted by the defendant, however, entirely fails to substantiate this defense, even if sufficiently pleaded.

The only reference whatever in this affidavit to the subject of the renewal of the note is found in the following statement: “At that time” (referring to a time prior to the due date of the original note on July 8th, 1931), “Corcoran informed me” (the defendant Crusius) “that he had placed this note with his bank for collection, but that he would call them and tell them not to send it. At the same time we arranged for Maxwell to make up the deficiency in the consideration of said note and Maxwell and Corcoran, for the Park Gasoline Company, agreed that said note could be renewed from month to month for a period of one year. Whether or not he was successful in' recalling this note, I do1 not know.” There is nothing in this language, however, to indicate a present fraudulent intent on the part of said Maxwell with respect to the promise that the note could be renewed. The foregoing statement in the affidavit merely sets forth an ordinary agreement, which later was apparently broken, although the affidavit fails to state that fact. To spell fraud from such a meagre statement would be far beyond the realm of a reasonable inference. This defense isr therefore, sham.

Even if not sham, this defense as pleaded would be insufficient in law. In order to constitute fraud there must be a misrepresentation of an existing fact and not a mere promise. It is, of course, true that a representation of an intention as existing may, if false, avoid a contract induced thereby, because a misrepresentation as to the state of a man’s mind is a misstatement of fact.

Nevertheless it is firmly settled that there is a distinction between cases where the representation of an intention is in fact a mere promise collateral to the contract and where it amounts to an affirmation of a present state of mind. In the former case there is no fraud because there is no misrepresentation of an existing fact. Roberts v. James, 83 N. J. L. 492 (at p. 498); Stramke v. George A. Raker & Co., 156 Atl. Rep. 640.

I think that the alleged representation “that said note could be renewed without reduction from month to month for a period of one year” constituted a mere promise collateral to the note in question, and not an affirmation of a present state of mind It therefore follows that this second separate defense is insufficient in law to constitute a defense of fraud.

Furthermore, it is to be noted that the plaintiff is not the payee of the note in question but an endorsee, hence it must be alleged and proven, either that he took the note after maturity, or else with knowledge of the alleged false pretenses, but there is no such allegation in this pleading. It is alleged that the plaintiff had full knowledge of the agreement respecting renewals of the note, but there is no allegation that the plaintiff had any knowledge of any fraudulent intent on the part of the said Amos E. Maxwell who alone is charged with having “fraudulently procured” said note from the defendant.

It has been held, however, that a pleading cannot be discarded as being both sham and frivolous, and so it may be sufficient for present purposes to hold that this defense is frivolous and should be stricken out for that reason.

The third separate defense reads as follows:

“The said Amos E. Maxwell delivered to the defendant Edward L. Crusius a written agreement that said note would not under any circumstances be endorsed until another note in a like amount was delivered over to the defendant Edward L. Crusius. Plaintiff had knowledge of this written agreement before maturity of said note and, contrary to the terms thereof, is fraudulently conspiring with the said Amos E. Maxwell to illegally enforce payment thereof. Said note has not been delivered to the defendant Edward L. Crusius in accordance with said agreement, of which the plaintiff had knowledge, and plaintiff. likewise has knowledge that said note has not been delivered to defendant Edward L. Crusius.”

In the first place this alleged defense is deficient in a very-important particular. It fails to allege that the plaintiff at the very time it acquired said note had knowledge of the alleged written agreement restricting delivery thereof or if it had not, that it acquired said note after maturity, and hence was not a holder in due course. The only allegation upon the subject of notice in this pleading is the statement that “plaintiff had knowledge of this written agreement before maturity of said note.” This is not sufficient, because if it acquired such knowledge after obtaining the note for value but before maturity, it would not disturb the plaintiff’s status as a holder in due course and subject it to the defense otherwise available between the original parties.

Furthermore the defendant’s affidavit is absolutely silent iipon the subject of plaintiff’s knowledge of the alleged written agreement making the delivery of the note in question dependent upon a condition precedent. On the other hand plaintiff’s affidavit explicitly denies any such knowledge.

The third separate defense is, therefore, sham and will be stricken out for that reason.

Turning now to the general denial set forth in the answer proper, we find that the only disputed question of fact, aside from the amount due on the note which depends on the determination of the questions herein considered, is whether the note was actually presented for payment at the time and place at which it was payable. In the view I take of the matter, however, this question is immaterial, for the reason that the defendant Crusius is the maker of the note and on its face is the one primarily liable thereon. In the case of Adams v. Hackensack Imp. Com., 44 N. J. L. 638, 646, it was held that “the contract of the maker, acceptor or obligor” (of commercial paper) “is to pay the holder of the paper, and the place for payment is designated simply for the convenience of both parties. The only effect of the payor having the money at the bank where the paper is payable is that it will enable him to plead a tender in exoneration of interest and costs of suit, provided he makes his tender good by payment of the principal into court.” The principle of this case was embodied in section 70 of the “Negotiable Instruments act” (3 Comp. 8tat., p. 3743, § 70), which provides as follows:

“Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity; such ability and willingness are equivalent to a tender of payment upon his part; but except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and endorser.”

Section 192 of the act provides that:

“The person ‘primarily’ liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same; all other parties are ‘secondarily’ liable.” Section 60 of the same act in defining the liability of the maker of a negotiable instrument makes no reference to the necessity for presentment in order to fix liability. The section provides as follows:

“The maker of a negotiable instrument by making it engages that he will pay it according to its tenor,” &e.

Section 66, however, in fixing the liability of a general endorser of negotiable paper expressly makes due presentment for payment a pre-requisite to liability, for it provides, inter alia, that a general endorser “engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor.”

Furthermore section 29 of the same act provides that—• “An accommodation party is one who has signed the instrument as maker, drawer, acceptor or endorser, without receiving value therefor, and for the purpose of lending his name to some other person; such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only one accommodation party.”

And so it has been uniformly held that under these provisions of the act the relation that had existed previously between an accommodation maker and a holder for value who-knew him to be such has been changed, and that now an accommodation maker is primarily and absolutely liable to the holder for value, notwithstsanding such holder at the time of taking the instrument knew him to be an accommodation party. Clifford v. West Hartford Creamery Co., 153 Atl. Rep. 205, 213.

It is apparent, therefore, that failure to present the note in question for payment at the time and place provided for in the note would not be a defense to this action on the part of this defendant as the maker thereof. Nor can he save himself from interest and costs of suit upon the theory that he was able and willing to pay at maturity at the place provided, thereby effecting a tender, because he has failed to plead such ability and willingness, or a tender, which is a pre-requisite. Adams v. Hackensack Imp. Com., supra. In fact defendant’s affidavit does not allege such ability and willingness to pay the note, but on the contrary demonstrates the defendant’s unwillingness to do so at maturity.

The denial of due presentment of the note contained in the answer may not be sham as claimed by the plaintiff, but it attempts to raise an issue upon an immaterial matter, and may, therefore, be disregarded or considered as frivolous so far as the defendant Crusius is concerned, and the court is, therefore, privileged to strike it- out for that reason of its own motion. Mt. Pleasant Cemetery Co. v. Erie Railroad Co., 74 N. J. L. 100. The balance of the general denial contained in the answer proper is sham.

The motion to strike out the answer and separate defenses will, therefore, be granted for the reasons hereinbefore stated, and an order may be presented in accordance with the conclusion thus reached.


source: Caselaw Access Project

author: Otaphant, C. C. J.

license: Public Domain

text:
    JOHN E. HUTH, ASSIGNEE OF E. A. BROMUND COMPANY, A CORPORATION, PLAINTIFF, v. JEAN JORDEAU, INCORPORATED, A CORPORATION, DEFENDANT.
    Decided January 20, 1932.
    For the plaintiff, Tumulty & Tumulty.

    For the defendant, Lionel P. Kristeller.

   Otaphant, C. C. J.

This case was heard by the court sitting without a jury. On October 6th, 1930, plaintiff and defendant entered into a contract whereby plaintiff agreed to •sell to defendant approximately fifteen thousand (15,000) pounds of beeswax, to be taken as required throughout one year from date. The price was to be thirty-six cents per pound (subject to proportionate reduction if the market price should decline). A total of twenty-seven thousand (27,000) pounds was ordered and delivered. The market price of beeswax at the date of the signing of the contract was forty-eight cents per pound. The price declined during the life of the contract, but never below the figure of thirty-six cents. On December 15th, 1930, the price had gone to forty-one cents and on March 2d, 1931, to thirty-nine cents, but the defendant continued to pay the price of thirty-six cents. Orders under date of May 25th, 1931, were delivered and billed for. The goods purchased on that date at thirty-six cents a pound amounted to twenty-seven hundred dollars ($2,700). The defendant then claimed that the contract provided that the price should always be three-fourths of the market price, made deductions accordingly for all goods bought under it and offered payment of $1,446.75 in settlement of the account. This was refused, plaintiff contending the price was to be thirty-six cents per pound unless the market price declined under that figure. The whole course of dealings between the parties bears out the plaintiff’s contention. Practically all orders given by defendant specified a thirty-six cent price, all bills were made out at that figure and paid for by defendant except the last order of May 25th. It seems to be a belated discovery by defendant that it was entitled to a deduction or rebate. Its excuse for not taking it on each bill was that they thought they would do so at the end of the contract. Business men do not deal in that manner. They take what they believe is due them at the time it is due. As before stated, I am satisfied from the whole course of dealing between the parties that the construction of the price clause of the contract is that the price of the beeswax be thirty-six cents per pound unless the market price declined below that figure. As that contingency never happened, the plaintiff is entitled to a verdict in the sum of $2,781.

Judgment for that amount will be awarded.


author: Per Curiam.

text:
    GEORGE McCLELLAND, PLAINTIFF, v. COLT'S PATENT FIRE ARMS MANUFACTURING COMPANY, A CORPORATION, AND ALBERT FOSTER, DEFENDANTS.
    Argued January 20, 1932
    Decided January 21, 1932.
    Before Justices Campbell, Lloyd and Bodine.

      For the plaintiff, Chandless, Weller £ Selser (Ralph W. Chandless, of counsel).
    For the defendants, Pitney, Hardin £ Skinner.

   Per Curiam.

The plaintiff sued to recover damages for the permanent loss of the sight of his right eye said to be the proximate result of the negligence of one of the defendant’s salesmen in demonstrating a new type of rapid fire rifle. The summons and complaint were served in this state upon Albert Foster, individually, and as the Yew York manager of the Colt’s Patent Fire Arms Manufacturing Company, a corporation. The present application is to vacate the service upon the corporate defendant.

It appears from the depositions that the defendant is not a Yew Jersey corporation and has never been registered to transact business in this state. It further appears that the company is organized under the laws of Connecticut, where its factory and plant are located. It maintains no plants in Yew Jersey, carries no bank accounts, and sells and delivers no goods here. All of its business is carried on through jobbers who make their purchases at the home office. Occasionally salesmen come into this state to solicit orders and to display and demonstrate their merchandise. All orders taken are subject to acceptance or rejection at the main office, where all collections are made.

Chief Justice Beasley said in Camden Rolling Mill Co. v. The Swede Iron Co., 32 N. J. L. 17: “Upon general principles, and in the absence of statutory innovations, it is to be regarded as settled, in this state at least, that if a foreign corporation, at the time of commencement of suit, does not do business, and has not any office or place of business in this state, the contract sued on, not having been entered into in this state, such corporation, except by its own consent, cannot be brought within the jurisdiction of this or any court of this state. Under such circumstances, the officers or agents of such foreign corporation, when they come into this jurisdiction, do not bring with them their officials character or functions, and are not to be esteemed, out of the sovereignty by the laws of which the corporate body exists, the representatives for the purposé of responding to suits of law of such corporate body.” And then he goes on to examine Pamph* L. 1865, p. 467, which provides the manner in which process may be served upon foreign corporations and says: “The statute does not give any new right of suit; nor does it purport to take away any of the privileges of foreign corporations. It simply appoints a method of bringing corporations invested with a foreign character into the courts of this state, when such courts have jurisdiction over them. We think that the act in question has no scope beyond this.”

The statute above referred to by the Chief Justice is still embodied in our Corporation act as section 88 {Pamph. L. 1896, p. 305).

In fact, it is conceded by the complainant that if the action had been in contract process was not well served in this case, since the defendant was not doing business in this state under the above rule which has been accepted and followed in Carroll v. New York, New Haven and Hartford Railroad Co., 65 N. J. L. 124; Low v. Davey, 83 Id. 540; Wood & Selick v. American Grocery Co., 96 Id. 218; Jager v. Breslow, 9 N. J. Mis. R. 1069.

But it is suggested that since the action is to recover damages for an injury due to a tort another rule applies, but no-authorities are cited. The general rule is stated in 14A Corp. Jur. 1368, as follows: “A foreign corporation cannot be sued in personam, otherwise than by consent, where it is not present or is not found or, as commonly expressed, is not doing business in the state.”

“The process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. Notice sent outside the state to a non-resident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff, 95 U. S. 714. * * *. The mere transaction of business in a state by non-resident natural persons does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 Id. 289. The power of a state to exclude foreign corporations, although not absolute but qualified, is the ground on which such an implication is supported as to them. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 Id. 93, 96.” Hess v. Pawloski, 274 Id. 352, 355.

Since the defendant corporation was not doing any business in this state, nor did it expressly or by implication consent to the jurisdiction, the service of process must bo set aside.


author: Ackerson, S. C. 0.

text:
    EDWARD O’TOOLE, PLAINTIFF, v. ROBERT O’TOOLE AND SALLY E. O’TOOLE, DEFENDANTS.
    Decided January 23, 1932.
    For the plaintiff, Bernard M. Degheri.

    For the defendants, Richard Doherty.

   Ackerson, S. C. 0.

This action is brought by Edward O’Toole, as the alleged holder, through endorsement of a promissory note for $3,000, against the defendants as the joint makers thereof, which note was given to the payee, The Eobert O’Toole' Company, Incorporated, by the defendant Eobert O’Toole as his contribution to the capital of a partnership formed by himself and the said The Eobert O’Toole Company, Incorporated, pursuant to a written agreement attached to and made a part of the complaint herein.

The defendants have filed a joint answer admitting that the note has not been paid, but denying that the same was endorsed over to the plaintiff and that he is the holder thereof, and setting up three “separate defenses.” Appended to the answer is a notice, pursuant to rule 40 of this court, that defendants reserve the right, at the trial or prior thereto, to apply to the court for an order: (1) Dismissing the action on the ground that it is not properly cognizable by a court of law; (2) transferring the issue to the Court of Chancery.

The matter now comes before me upon a motion to strike out this answer and the separate defenses upon several grounds, some of which will now be considered.

The only reason advanced for striking out the answer proper, as distinguished from the separate defenses, is that it is sham. The only material issues raised thereby are whether the payee of the note endorsed the same to the plaintiff, and whether it is now the property of the plaintiff.

This is the second time that this case has been before me upon motion, and no affidavits have been submitted this time by either side, so'far as I can find, except certain depositions heretofore taken before a Supreme Court commissioner upon a rule to show cause why a default judgment against the defendants should not be opened, which depositions are offered by consent of counsel in lieu of the usual affidavits. There is nothing in them, however, to either affirm or deny endorsement to or ownership by the plaintiff, and we are left entirely to conjecture. These are essential elements of the plaintiff’s complaint, and rule 81 of this court requires the plaintiff’s cause of action to be verified by affidavit upon a motion to strike the answer thereto as sham. If this had been done, the defendants’ failure to offer affirmative proof upon the subject would have entitled the plaintiff to have this part of the answer stricken out for the reason claimed. Schiff v. Alexander, 130 Atl. Rep. 133. Under the circumstances, however, this cannot be done.

Passing for the moment the “first separate defense,” let ns take up the “second separate defense.” We find that it charges in substance that The Edward O’Toole Company, Incorporated, sometime after the making and delivery of the note in question, did “wrongfully, forcibly and in violation of the terms and provisions” of the partnership agreement, “remove, exclude and continue to exclude the defendant Eobert O’Toole from the partnership business, depriving him of all benefits and profits therefrom, and thereby causing a partial failure of the consideration for the making of the note, of all of which the plaintiff had notice before he became the holder of said note.”

One of the reasons advanced for striking out this defense is that it is frivolous, and discloses no defense to this action, and it is argued that the facts and circumstances set forth in said defense constitute no failure of the true consideration for said note.

The partnership agreement provided, inter alia, that the partners, The Edward O’Toole Company, Incorporated, and the defendant Eobert O’Toole, were each to contribute $3,000, “in either cash or kind as capital to open, operate and maintain” the business. Ho definite term for the duration of the partnership was stated, but it was stipulated that “this contract can be terminated on the loth day of July in any year, providing, the parties to it give each other notice that they intend to so terminate this agreement. Hotice in writing must be given by either party to the other of intention to terminate his agreement of limited partnership sixty days before July loth in any year.”

The note in suit was the contribution of the defendant Eobert O’Toole to the partnership business in an attempted performance of his promises under the partnership agreement, and the consideration for it was undoubtedly the reciprocal promises of the other partner.

I think this defense as pleaded does not set forth an instance of total or partial failure of consideration for the note. The theory of this defense is that, although the defendant Eobert O’Toole gave a note payable in three months, as his contribution to the capital of the firm, instead of “cash or kind,” that if, before the note became due, the other partner brought about a breach of the agreement that the partnership was to continue until terminated by written notice, that this would be in a legal sense a failure or partial failure of consideration, and for that reason a defense or partial defense to this action.

It is elementary that a promise may be a sufficient consideration for a promise. And it is the promise, and not the performance thereof, that constitutes the consideration, except where by the terms or necessary intendment of the agreement between the parties, performance on one side is made a condition precedent to performance on the other. U. & G. Rubber Manufacturing Co. v. Conrad, 80 N. J. L. 286, 293; 13 C. J. 327.

But in the case sub judiee it will be observed that the contributions of the partners were to be made to “open,” as well as to “operate and maintain” the business, hence they were to be made at the very inception of the business while the provisions permitting the defendant, Robert O’Toole, to participate in the business and share in the profits and have the partnership continue until terminated by written notice as in said agreement provided, were to be performed thereafter as the business progressed. And it is well settled that where there are mutual promises, and the time for performance by one party may arrive before the time for performance by the other, the latter. promise is an independent obligation and not a condition precedent to the former, and its nonperformance does not constitute a bar to an action upon the former promise, but merely gives rise to an independent cause of action for breach of contract. Kinney v. Federal Laundry Co., 75 N. J. L. 497; U. & G. Rubber Manufactur-Co. v. Conrad, supra; Pinto v. Pulidora, 162 N. Y. Supp. 736.

It seems to me, therefore, that after making its contribution to capital, the further promises of The Edward O’Toole Company, Incorporated, hereinbefore mentioned, were at most independent undertakings, the non-performance of which would not constitute a failure or partial failure of the consideration for the note in question, and would not constitute a bar or partial bar to plaintiff’s action thereon. Such non-performance or interference with said defendant’s rights would undoubtedly give rise to a cause of action, which under the liberality allowed by section 12 of the “Practice act of 1912” (Pctmph. L. 1912, p. 379) might be set up as a counterclaim, but that is not the form in which the subject is here presented. Said defendant might also institute a separate suit against the wrong-doer as upon an independent cause of action but with that we are not now concerned.

The second separate defense must therefore be stricken out as not disclosing any defense to the action.

The “first separate defense,” is in substance a reiteration of the “second defense,” except that the plaintiff, as a third party individually, instead of the co-partner, The Edward O’Toole Company, Incorporated, payee of the note, is charged with having “wrongfully, forcibly and in violation of all the terms and provisions” of the partnership agreement, removed and excluded the defendant Eobert O’Toole from the partnership business, depriving him of all benefits and profits therefrom, and thereby causing a partial failure of conisderation for the note. The theory of this defense is the same as the one just considered—a failure or partial failure of consideration. One of the reasons urged for striking out this defense is that the facts and circumstances set forth in said defense constitute no failure of the true consideration for the said note nor any defense to the action.

What has already been said respecting the “second separate defense,” is equally applicable here in so far as the defense of partial failure of consideration is concerned.

If we exclude from this alleged defense, the theory of a failure of consideration upon which it is based, and rest it only upon the alleged wrongful interference of the plaintiff, a third party, with the performance of the partnership agreement, causing a breach therof to defendant’s damage, we are asserting a tort, which, of course, is not a matter of defense, and at most only could be set us as an independent cause of action, possibly, by way of counter-claim, under section 12 of the Practice act of 1912, supra.

The “first separate defense” does not, therefore, set forth a proper defense to this action and will be stricken out.

The “third separate defense” alleges that there was no consideration whatever for the making of said note by the defendant Sally E. O’Toole, which fact was at all times from the signing thereof known to the plaintiff, who was not a holder in due course. It is claimed that this alleged defense is sham. Also that it discloses no ground of defense to said action.

In the depositions of Sally E. O’Toole and Robert O’Toole, offered with this motion, they both admit that she signed the note only at the request and for the accommodation of her husband,- Robert O’Toole, alone. Furthermore sections 24 and 59 of the “Negotiable Instruments act” (3 Comp. Stat., pp. 3738, 3741), provides that: “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party for value,” and “every holder is deemed prima facie to be a holder in due cause.” There has been no proof whatever offered to offset these presumptions and they must stand.

It appears beyond dispute that the consideration for the note in question was the promises on the part of the payee to the defendant, Robert O’Toole, as set forth in the partnership agreement between them and, although the defendant Sally E. O’Toole may have become a joint maker for the accommodation of her husband, nevertheless, it is settled that a signature for accommodation is supported by a consideration moving to the accommodated party. A party to a note who has received no value himself may, nevertheless, become liable to a holder for value. This principle is applicable alike to the maker and endorser of a note by way of accommodation. Crothers v. National Bank of Chesapeake City (Md.), 149 Atl. Rep. 270; Palhemus v. Prudential Realty Co., 74 N. J. L 570, 576; 3 Comp. Stat., p. 3738, § 29.

It is apparent, therefore, that this alleged defense is sham and should be stricken out

What has already been said seems to dispose of the questions directly raised by the plaintiff’s motion but at the argument of this motion it was agreed that the questions of law reserved in the notice appended to the defendants’ answer should be disposed of at this time. These questions are whether the plaintiff’s complaint should be dismissed on the ground that the cause of action is not properly cognizable by a court of law, because partnership accounts are involved which can only be determined in a court of equity, or whether the cause should be transferred by this court to the Court of Chancery for the same reason.

There are two reasons why partners cannot ordinarily sue one another in a court of law; one a technical reason which forbids a party from being both plaintiff and defendant in the same suit, where that situation arises, and the other a substantial one, that until all the partnership matters are ascertained and adjusted, it is impossible to know whether a particular partner is a debtor or a creditor of the firm.

With the first of these reasons we are not now directly concerned, because whether we consider the note in question as made payable to the partnership or to one of the partners individually, nevertheless, the note has been endorsed over to a third party, and that party is now the plaintiff in this action against one of the partners. It seems settled that the technical objection against a party being both plaintiff and defendant in the same suit, is overcome by an assignment or endorsement of the claim or instrument to a third party who may sue thereon. 47 C. J. 950.

In any event it would appear that the note in question was made to a single partner and not to the firm. The partnership agreement, a copy of which is attached to defendants’ answer, expressly provides that the business to be estsablished shall be “known as the Chicago establishment of The Edward O’Toole Company, Incorporated,” and that “the parity of the second part” (Robert O’Toole) “agrees to surrender all his interest, claims, profits and rights in the Chicago establishment of The Edward O’Toole Company, Incorporated, if guilty of any fraudulent or negligent acts,” &c., and said party also agrees to let the other partner “direct the policies and business of the Chicago establishment of The Edward O’Toole Company, Incorporated.’’ It would appear, therefore, that the partnership was not to be designated by the corporate partner’s name, but was to be known by the separate title of “The Chicago Establishment of the Edward O’Toole Company, Incorporated.” The note was made payable to “The Edward O’Toole Company, Incorporated,” and not to “The Chicago Establishment of the Edward O’Toole Company, Incorporated.” Hence, even if this action had been brought by the payee of the note as the party plaintiff, the technical objection to a party being both a plaintiff and defendant in the same suit would not be involved, and therefore, it would not be involved where the real plaintiff holds the note by endorsement from such payee.

With respect to the second reason why actions involving partnerships are sometimes the subject of exclusive equitable jurisdiction as above stated, it is, of course, generally true that while partnership accounts remain unsettled, and no balance has been struck, though the partnership has been dissolved, no action at law can be maintained by one partner against another, except an action of account, nor will an action at law lie for money had and received by the firm or lent to the firm of which the plaintiff was a member, for such advance only forms an item in the partnership account, and relief must be looked for in equity. Davis v. Minch, 80 N. J. L. 214; Gulick v. Gulick, 14 Id. 578.

But it is equally true that the foregoing rule does not apply to covenants or agreements for contributions to the capital of a partnership. And so where in organizing a partnership, one partner gives his note for his share of the capital, he may be sued thereon in assumpsit in a court of law. The agreement to advance capital constitutes an independent undertaking distinct from the ordinary partnership business. It is not a partnership transaction involving the running accounts of the business, but rather an independent covenant which is enforceable whatever the condition of the partnership accounts may be. Townsend v. Goewer, 19 Wend. (N. Y.) 424; Mason v. Green, 21 N. J. L. 562; Williams v. Henshaw, 11 Pick. 79 (at p. 83); Houghton v. Grimes, 135 Atl. Rep. 15; Roache v. Pendergast (1810—Md.), 3 Harr. & J. 33; Cinnamond v. Greenlee, 10 Mo. 578; Whetherbee v. Potter, 99 Mass. 354; Halleck v. Streeter, 52 Neb. 827; 73 N. W. Rep. 219; Ridgway v. Kleinert (1858—Pa.), 15 Leg. Int. 1175; Venning v. Leckie, 13 East 7; Gale v. Leckie, 2 Stark. 107; 21 A. L. R. 27; 30 Cyc. 466; 47 C. J. 806 et seq.

In Cinnamond v. Greenlee, supra, the court said: “Such a transaction” (agreement to advance capital) “does not enter into and form a part of the partnership business so as to require the interposition of a court of equity to adjust and settle the rights of several partners.”

In the course of the opinion in Townsend v. Goewer, supra, the court quotes from Venning v. Leckie, supra, as follows: “There are many deeds of co-partnership in which the partners covenant each to advance a certain sum at first, and can it be said that no action would lie by one to enforce that covenant against another, because there are accounts between them afterwards, which require unraveling in a court of equity? * * * The respective sums were to be paid by each before there could be any account of profit or loss between them as partners upon the goods.” This quotation is also used in Houghton v. Grimes, supra.

The case of Venning v. Leckie, supra, is cited with approval in Williams v. Henshaw, supra, where the Supreme Judicial Court of Massachusetts says: “So, if one partner covenants or agrees to advance a certain portion of the capital or to perform any other specific acts, an action will lie for a violation of these express contracts, even during the continuance of the partnership.”

It seems apparent, therefore, that the plaintiff, who claims to hold the note in suit by endorsement from the payee, whether an individual partner or a firm, is entitled to sue thereon in this court of law, and that the defendant is not entitled to an order dismissing the action on the ground that it is only cognizable in equity, or transferring it to the Court of Chancery for final disposition.

It follows from what has already been said that an order must be made striking out the first, second and third separate defenses of 'the answer for the reasons already stated, but refusing to strike out the denial of endorsement to and ownership by the plaintiff of the note in question as contained in the answer proper, unless the attorneys on each side will stipulate for the record that the note was actually endorsed over to the plaintiff and was at the institution of this action, and now is his property (which I strongly suspect to be the actual fact), in which event the order will be to strike out the entire answer. The order will also deny defendants’ aforesaid application to dismiss the action or transfer it to the Court of Chancery, and no costs will be allowed upon this motion.

In the meantime the case will be placed on the commercial calendar for the month of February, 1932, without further notice.


author: Smith, C. C. J.

text:
    SALVATORE SAPIENZA, PLAINTIFF, v. JULIUS DOBRSKY ET AL., DEFENDANTS.
    Decied January 25, 1932.
    For the defendants, Biro ■& Btrell {B. Bayard Btrell, of counsel).
    For the plaintiff, Milton M. Unger (Leonard J. Bmmergliclc, of counsel).
   Smith, C. C. J.

This action was brought by the plaintiff to recover damages for personal injuries against the defendants Edward EL Marck, who was the driver of the car involved in the accident, and against Julius Dobrsky and Louis Dobrsky, partners, trading as the Elarrison Auto Eepair Company, as the owners of the car involved in the accident, it being claimed that the car was engaged in their business and operated by their servant at the time of the accident. The jury returned a verdict against all the defendants, and motion is now made on behalf of the Dobrsky brothers to set aside this verdict on the ground that it is against the weight of the evidence in that the evidence shows that they had disposed of the car to the defendant Marck, and that he was not engaged in their business at the time of the accident.

The ear in question bore the dealer’s license plates of the Dobrsky brothers, and it appears that it was originally owned by them, they having bought it in June, 1929, and the accident having happened on August 17th, 1929. The testimony bearing on the question of ownership and the relationship of the driver to the owner was given by the three defendants, Marck and the two Dobrsky brothers.

There was evidence to show that Marck worked for the partners, but it was claimed that he was an independent contractor. .It appeared that he would spend considerable time working on cars in the place of business of the other defendants. There was also evidence to show that the car was garaged for a time, at least, at the Dobrsky garage; and it also appeared that the defendant Marck drove from the garage of the defendants Dobrsky the night before the accident and that he was on his way to their garage in the morning at the time of the accident with the intention of doing work at their place. There was also evidence to show that after the time that it was claimed that Marck had bought the car he did the repair work upon it at the Dobrsky place of business. There was also evidence to show that the business the Dobrsky brothers were engaged in was that of reconditioning damaged and second-hand ears, including the bodies.

There was no explanation of why they should sell to Marck this car which they had purchasesd in a damaged condition and let him recondition it at their garage instead of employing him to do the reconditioning work. There was evidence given by Julius Dobrsky that the books of the Dobrsky brothers would show the sale, and these books were not produced, although it is not claimed that they were missing.

There was also the testimony of Officer Shell which shows that Marck, in making a report of the accident, stated to him that the car was owned by the Harrison Auto Eepair Company. •

The veracity of the three defendants was directly put at issue on material points; March’s was put directly at issue on the question of the accident, and the veracity of the three defendants was put at issue on the question of the uses of the license plates. Marck claimed that he had the car at home and used it from time to time, and that no other license plates were on it; both of the Dobrsky brothers testified that there was only one occasion when the plates were lent, and that that was on the day before the accident, and that they were lent for the purpose of permitting Marck to demonstrate the car to someone. It also appeared that the car stood out either in the yard or in front of the Dobrsky brothers garage. We also have the fact that the Dobrsky brothers, by their original answer, admitted that they were the owners of the car.

It was for the jury to say how much credence it would put in their testimony. They had the right to reject it in whole or in part and to hold that the presumption arising from the fact that the license plates were those of the defendants Dobrsky brothers, indicated that the car was their car and that it was being operated on their business.

The cases which hold that where the veracity of the defendant is put at issue it is open for the jury to find in favor of the legal presumption from the license plates, are as follows: Crowell v. Padolsky, 98 N. J. L. 552 (at p. 553); Tischler v. Steinholz, 99 Id. 149 (at p. 153); Nichols v. Grunstein, 105 Id. 363 (at pp. 365, 366); Hart v. Brusnaham, 5 N. J. Mis. R. 469 (at p. 470), and Gustin v. Callandriello, 7 Id. 114 (at p. 115).

It appears to me that it was clearly a jury question, as to whether or not this car was owned by the defendants Dobrsky brothers and being operated by them in their business at the time of the accident, and the jury having held in favor of the plaintiff, I do not feel that its finding is contrary to the weight of the evidence.

The motion for a new trial will therefore be denied.


author: Olipiiant, S. C. C.

text:
    VALERIO TARANGIOLI, PLAINTIFF, v. HERMAN E. RAPHAEL, DEFENDANT.
    Decided January 25, 1932.
    Before Oliphant, Circuit Court judge, sitting as Supreme Court commissioner.
    Tor the plaintiff, Charles A. Malloy.

    Tor the defendant, Perlman & Lerner.

   Olipiiant, S. C. C.

This matter is before me, sitting as a Supreme Court commissioner, on a motion to strike out the complaint.

It is an action in replevin. Plaintiff is a chattel mortgagee under a chattel mortgage given by Joseph Paternoster. The defendant, Eaphael, is a constable of Mercer county. On June 19th, 1931, he levied upon the goods being replevied, by virtue of a writ of execution issued out of the District Court of the city of Trenton, in a suit in which Morris Solomon recovered a judgment of five hundred dollars ($500) and costs against the said Paternoster. By'consent of counsel, Morris Solomon is to be treated as if he is a party defendant to this action.

The proofs as they appear by the affidavits presented show that Morris Solomon became a creditor of Joseph Paternoster upon a promissory note dated November 2d, 1928, and due December 2d, 1928; that the note was not paid and suit was commenced thereon in June, 1931, and judgment entered under which the writ of execution before mentioned issued; that on March 26th, 1931, the date of the execution of the mortgage to the plaintiff, Paternoster was married; that on that date and ever since he has been the head of a family residing in Trenton; that the goods mortgaged consisted only of household goods and furniture; that on that date and ever since the household goods and furniture have been and are in the use and possession of Paternoster’s family, at his residence; that the mortgage was not given to the plaintiff to secure the purchase money or any part thereof for such goods, and that the mortgage was never signed, sealed, executed or acknowledged by Paternoster’s wife. It appears further, that when these goods were mortgaged to the plaintiff no delivery was made to him and there was no change of possession.

One of the grounds upon which the motion is based is that the mortgage is void under section 10 of the Chattel Mortgage act. 1 Comp. Siat. 1910, p. 469. That section reads as follows : “Every chattel mortgage, bill of conditional sale, conveyance or other instrument, in writing, of the nature of a chattel mortgage hereafter made upon, or for any household goods and furniture in the use and possession of any family not given to secure the purchase-money for such goods and furniture thus in use and possession, shall be absolutely void, and of no effect or validity, unless such mortgage, bill of conditional sale, conveyance or instrument, in writing, intended to affect such household goods and furniture, shall be first duly signed, sealed, executed and acknowledged, according to law, by the husband and. wife of the family, and be recorded as herein provided in the county where such household goods and furniture may be situate at the time of the execution thereof.” All the elements of avoidance named in the section affirmatively appear but counsel for the plaintiff contends that the language “shall be absolutely void and of no effect or validity” simply renders the mortgage voidable at the option of the injured party, rather than a legal nullity. I cannot agree with this position. It is true that the word “void” has been often construed as meaning voidable, but such a construction cannot be placed on the word as used in our Chattel Mortgage act. The language is “absolutely void and of no effect or validity.” It is a rule of construction of statutes that words be given their ordinary meaning, as they are commonly used and understood. Lake v. Ocean City et al., 62 N. J. L. 160; McLorian v. Overseers, 42 Id. 616. If the words as used in the statute mean anything, it is that such a mortgage is of no effect whatever, a nullity. “Where an act is plain and unambiguous in its terms, the rule is fundamental that there is no room for judicial construction, since the language is presumed to evince the legislative intent.” Trenton Savings Fund Society v. Wythman, 104 N. J. Eq. 271.- Furthermore, the words “of no effect” it has been held, are equivalent to “void” and not “voidable.” Mr. Justice Parker in his opinion in Jersey City v. Davis, 80 N. J. L. 609, said, “the phrase ‘of no effect’ is symonymous with ‘void’ and not with ‘voidable.’ ”

A judgment creditor of the mortgagor would stand in as favorable a position as an innocent purchaser of value from the mortgagor and as was said in the case of Kennedy Furniture Co. v. Griffin, 194 Ill. App. 530: “A chattel mortgage, not executed as provided by statute, confers no right on the mortgagee to take the mortgaged property from the possession of a bona fide purchaser for value, claiming under a transfer from the mortgagor.”

I am satisfied, therefore, that the complaint fails to set forth a good cause of action and that the motion to strike should prevail. Such will be the order.


author: Pee Cueiam.

text:
    EDWARD THOMPSON COMPANY, A CORPORATION, PLAINTIFF-APPELLEE, v. ELWOOD C. WEEKS, DEFENDANT-APPELLANT.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    For the plaintiff-appellee, Robertson Robertson.

    For the defendant-appellant, John W. Parsons (Elwood G. Weeks, of counsel, pro se).

   Pee Cueiam.

This is an appeal from a judgment in the Atlantic City-District Court in favor of the plaintiff and against the defendant for $273 and costs. The suit was brought to recover the balance due plaintiff upon a sale of a set of books known as Ruling Case Law sold by it to the defendant.

The defendant presented no testimony at the trial. The plaintiff proved by an employe, who testified he had charge of the collection of plaintiff’s accounts and knew of his own knowledge the entire transaction between plaintiff and defendant ; that. there was a balance due from defendant to plaintiff amounting to $240; that the original debt had been $320 which was reduced by payments from time to time totaling $80. This witness further testified that on the day prior to the trial he had seen the books in question in the defendant’s office; that he, at that time, had a conversation with defendant in which defendant said he wished to settle the account by returning the books and paying plaintiff $75 to be released from further obligation.

The defendant was present at the opening of the session of the court when it was announced this action would be heard during the day—an action he knew was one wherein he was charged with failure to pay a debt therein fully specified; nevertheless, he did not stay to question, to qualify or to deny. He left the trial of his case to his attorney who informed the court “that he had no defense in the case, but that he simply wanted strict proof of plaintiffs ease.” And, now, the defendant argues that the proofs were insufficient to justify the judgment, that a nonsuit should have been granted, and that it was error to permit plaintiffs witness to testify that there was a debt due from defendant to plaintiff.

We find no merit whatever in appellant’s contentions. The judgment is affirmed.


text:
    JOHN KALOGERAKAS, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT AND JOHN ANDREWS (FIRST NAME FICTITIOUS AND UNKNOWN), DEFENDANTS.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Dojstges.
    Por the rule, Henry H. Fryling (William F. Vosseller, of counsel).

      Contra, Aaron L. Simon.

   Pee Cueiam.

This matter is before the court upon a rule to show cause why a verdict at the Passaic Circuit in favor of plaintiff against Public Service Co-ordinated Transport should not be set aside because it is excessive. The case was previously-tried, resulting in a verdict of $4,000 for the plaintiff which this court ordered reduced to $2,500 or a new trial as to damages only. 8 N. J. Mis. R. 462. The plaintiff elected to take a new trial and upon this trial the jury returned a verdict for $11,105.

The evidence showed that plaintiff sustained injuries consisting of three broken ribs, a thickening of the tissue over the left cheek bone, or an inflammatory condition of the bone and the covering of the bone, bruises to the arm, back, legs and foot, an adhesion of the pleura at the point of the chest injury and some dislocation of the cartilage of the nose. The adhesion of the pleura caused coughing and some raising of blood. The testimony to support causal connection between the pleuritic condition and the accident was weak and unconvincing; and the claim of dislocated cartilage of the nose was not made at the first trial and was a matter of surprise when presented at this trial. However, the extent of the injuries shown on the second trial was somewhat greater than on the first.

Plaintiff lost ten weeks from his employment at which his wages were $30 per week. He testified that he was transferred to lighter work after the accident but there was no evidence of decreased earnings. The medical expenses totaled $477. There was evidence that an operation to the nose would cost $150, if performed, and that an operation to the cheek would cost $50, if performed. These operations may be necessary or, at least, desirable.

The verdict for $11,105 is grossly excessive. If the plaintiff will remit the excess over $3,500 the rule will be discharged, otherwise the rule will be made absolute, and a new trial will be granted on the question of damages only.


author: Pee Curiam.

text:
    MARY A. MacDONALD, AN INFANT, BY HUGH MacDONALD, HER NEXT FRIEND, PLAINTIFF-APPELLEE; HUGH MacDONALD and HELEN W. MacDONALD, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT; JOHN J. SMITH, DEFENDANT.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    For the plaintiff-appellee, Francis A. Gordon.

    For the defendant-appellant, Henry H. Fryling (Harold F. Dorgevalj of counsel).
   Pee Curiam.

This is an appeal from a judgment of the Union County Court of Common Pleas. The suit was brought to recover damages arising from an automobile accident. Mary A. MacDonald was injured while standing on the sidewalk at the intersection of two streets, as a result of a collision between a bus owned by Public Service Co-ordinated Transport and an automobile owned and driven by John J. Smith. She was. between seventeen years and eighteen years of age at the time of the occurrence. The first count of the complaint was on behalf of Mary A. MacDonald, an infant, by Hugh MacDonald, her next friend, for her injuries. The second count was on behalf of Hugh MacDonald, the father of Mary A. MacDonald, for expenses incurred by him as a result of the injuries received by his said daughter. The third count was in behalf of Hugh MacDonald and Helen W. MacDonald, his wife, for the loss of services of their daughter by reason of the injuries received by her.

The testimony showed that Mary A. MacDonald was a student nurse and that for that reason neither the several doctors who attended her nor the hospital at which she received medical attention made any charge therefor. There was no testimony that her father expended any money or incurred any indebtedness as a result of her injuries. Her salary was paid her during the time her injuries incapacitated' her from the performance of her duties as a student nurse. Neither Hugh MacDonald nor Helen W. MacDonald testified at the trial. Thus, there was no evidence at the trial in support of the second and third counts of the complaint. Notwithstanding this situation, there was no motion for a discontinuance, nonsuit or directed verdict as to these counts, either by plaintiffs or defendants. Any one reading the testimony would conclude that there was presented to the court and jury nothing except tlie claim of Mary A. MacDonald for her injuries inflicted upon her through the collision of the cars and the damages resulting personally to her therefrom. The trial judge absolutely limited his charge to the jury to the sole issue whether the defendants or either of them were liable for the injuries sustained by Mary A. MacDonald and her individual damages therefor. Nowhere in the charge is there any mention of damages to be awarded to the father for expenses or to the mother and father for loss of services. The appellant took no exception to this phase of the charge. It made no request to charge on the subject of damages. The verdict of the jury as taken by the clerk of the court was, "for plaintiff against Public Service in the amount of $2,000, and no cause of action against defendant John J. Smith.” A rule for judgment was entered upon this verdict, "in favor of plaintiff Hugh MacDonald as next friend of Mary A. MacDonald, and against the defendant Public Service Co-ordinated Transport, in the sum of $2,000 and plaintiffs’ costs to be taxed.”

Public Service Co-ordinated Transport appeals and urges that the verdict and judgment entered thereon are illegal and contrary to law, and cites cases to support its contention that the judgment against it should be reversed and a new trial granted. But the cases cited bear no such factual resemblance that the determination of this case may be reasoned therefrom because in each of the cases cited the jury returned a verdict for two or more plaintiffs and assessed the damages in a single or lump sum despite the fact that each plaintiff had presented a distinct, separate claim to the jury. This is a case, however, where the single, definite and exclusive claim of but one plaintiff was presented to and determined by the jury.

Of course, the verdict of the jury was crude in form. It can, however, be moulded to proper form as a verdict (upon the only count in the complaint submitted to the jury, under the evidence and charge of the court) in favor of the plaintiff Mary A. MacDonald, an infant, by Hugh MacDonald, her next friend. The rule for judgment is not in proper form since an action must be brought and carried on in the name of the infant by her next friend, but the summons and complaint show the action was so brought and the defect in the rule for judgment is amendable.

Let the verdict of the jury be moulded to proper form as aforesaid and the rule for judgment be amended to comply therewith.

The judgment as amended will be affirmed.


author: Lawrence, C. C. J.

text:
    MICHAEL SCHERALDI AND WILLIAM SCHMIDT, PLAINTIFFS, v. JAMES F. DOWLEN, DEFENDANT.
    Decided January 25, 1932.
    Before Lawrence, C. C. J.
    For the rule, Charles Stoclcdell Gray (Mr. Morris, of counsel).

      Contra, Bilder & Bilder (Mr. Daniel G. Masen, of counsel).
   Lawrence, C. C. J.

Plaintiffs have a verdict against the defendant in an automobile accident ease tried before me and a jury at the Monmouth Circuit. Defendant took out the present rule and argues for a new trial on the ground that the award of $1,000 to Seheraldi, covering the breaking of his car in the accident, certain alleged disbursements and loss of earnings, and a bump or bruise on his forehead, is excessive, and inconsistent with that of $350 to the other plaintiff—Schmidt—who received an injury to his right hand, involving cuts and a broken knuckle. It is not suggested, however, that the latter should be disturbed, the criticism being directed entirely to the former. hTo rule was applied for as to an inadequacy in the verdict in favor of Schmidt and that question is consequently not before me.

Considering the evidence submitted at the trial, the conclusion is that the Seheraldi award is excessive and should be reduced to $750. If he will consent to accept that sum, the rule to show cause will be discharged, otherwise it will be made absolute as to damages only.


author: Oliphant, S. C. C.

text:
    JOHN FRASCELLA, PLAINTIFF, v. HERMAN E. RAPHAEL, DEFENDANT.
    Decided January 26, 1932.
    For the plaintiff, Charles A. Malloy.

    For the defendant, Perlman •& Lerner.

    Before Olipbajstt, Circuit Court judge, sitting as Supreme 'Court commissioner.
   Oliphant, S. C. C.

For the reasons set forth in the memorandum in the case of Tarangioli v. Raphael, 10 N. J. Mis. R. 171, filed of even date herewith, the motion to strike out the complaint will be granted. An order in conformity therewith may be presented.


author: Pee Cubiam.

text:
    PAUL ZRINY, PLAINTIFF-APPELLEE, v. HARTFORD FIRE INSURANCE COMPANY, A CORPORATION, AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, A CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.

      Por the plaintiff-appellee, Frank P. Zimmer (Gongleton, Stallman & Hoover, of counsel).
    Por the defendants-appellants, Reginald V. Spell ((?. Earl Brugler, of counsel; Victor 0. Hansen, on the brief).
   Pee Cubiam.

This is an appeal from a judgment of the District Court, of the Pirst Judicial District of Hudson county in favor of the plaintiff and against the defendant, Hartford Pire Insurance Company.

The amended state of demand contains two counts. Under the first count damages in the amount of $6.50 are claimed against the defendant Hartford Pire Insurance Company, for the amount of the premium .alleged to have been paid upon a policy of insurance upon an automobile against loss through fire, alleged to have been unlawfully canceled, and under the-second count damages in the amount of $65.70 are claimed against the defendant Hartford Accident and Indemnity Company, for the amount of the premium alleged to have-been paid upon a policy of insurance upon an automobile-against loss through personal injuries and property damage,, alleged to have been unlawfully canceled. Judgment was; rendered by the court, sitting without a jury, in favor of the-plaintiff and against the defendant Hartford Pire Insurance-Company, in the sum of $52.76. Ho question is raised as; to the discrepancy between the state of demand and the-judgment.

Both policies were offered and received in evidence without objection. They are not made part of the state of case but. it is stipulated therein by counsel that the premiums thereon-totaled $72.20, that neither contained any provision as to the-manner or method of paying the premiums and that each-contained a provision that in the event of cancellation thereof by the company, the insured would be entitled to a refund of the excess of the premium paid, if paid, above the customary short rate premium for the expired term.

The sole witness in behalf of the plaintiff was his wife,. Anna Zriny, who testified that a man named Beshlian interviewed her urging her to take insurance on her husband’s car in the “Hartford company,” that she agreed that the insurance would be taken, and that subsesquently he brought the policies in question to her and received in cash from her the premiums due. There was no question raised as to the certainty that the premiums were paid by the plaintiff to Beshlian.

The sole witness in behalf of the defendants was their assistant cashier who testified only that the unearned premiums on both policies totaled $52.76. It was admitted that the premiums upon the policies were never received by the company. Beshlian was not called as a witness nor his absence accounted for. The defendants made no attempt to show, nor do they even now contend, that Beshlian had no authority from them to solicit this insurance and deliver these policies; the sole defense is that the premiums were not paid to the companies. But the trial judge was justified in concluding that the defendant companies had enabled Beshlian in this ease to have all the appearance of an agent of the defendant companies to deliver the policies and receive and receipt for the premiums due thereon. He had possession of policies admittedly those of the defendant companies insuring the plaintiff; and the companies make no claim that these policies did not properly come into the possession of Beshlian to deliver to the plaintiff; nor do they dispute that the plaintiff, through his wife, paid the admittedly correct premiums thereon to Beshlian and received the policies.

The trial court’s denial of the motion for nonsuit was proper. The state of case shows no motion for a directed verdict. We find no merit in defendant’s specifications of error.

The judgment will be affirmed.


author: Pee Ctjeiam.

text:
    JOSEPH ZULJEVIC, PLAINTIFF, v. ROBERT McINTYRE AND ERNEST GANDLY, DEFENDANTS.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    For the rule, Coult, Sate & Tomlinson (Gerald T. Foley, of counsel).

      Contra, William F. Burke.

   Pee Ctjeiam.

The plaintiff brought his action to recover damages for personal injuries and damages to an automobile owned and driven by him, sustained in a collision with a bus owned by defendant McIntyre and driven by defendant G-andly. The case was tried at the Hudson Circuit and the jury returned a verdict against both defendants and assessed the damages at $3,000 for the personal injuries and $500 for the property damage. The defendants obtained a rule to show cause why the verdict should not be set aside and a new trial granted and urge as the sole ground therefor that the verdict is excessive. However, defendants’ brief concedes that the assessment of $500 for the property damage is not excessive.

The sole testimony as to plaintiff’s personal injuries and the loss of earnings resulting therefrom was that given by the plaintiff himself. He claimed to have been treated by five doctors of his injuries, but not one of the doctors was called to testify. .There is no evidence of any expenditures for medical treatment.

Plaintiff testified that he sustained, in the accident, cuts and bruises and that he was rendered weak and nervous as a result thereof. He also testified that he was unable to do the same work after the accident which he did before the accident. He was the captain of a schooner and a part owner therein. He testified that he was actually laid up as a result of the accident for fourteen days thereafter, that ho then made a trip with his ship lasting twenty-seven days after which he was unable, because of his injuries, to make a trip for two or three months. He testified that he averaged $75 to $90 a week while actually engaged in making a trip with his boat. The sole testimony as to plaintiff’s loss of earnings was that given by him and he did not produce his books of account although he testified he kept records of some nature. The testimony of physical injuries, pain and suffering, and of the loss of earnings because of the same, is too meagre to justify the amount of the verdict.

The verdict for $3,000 for the personal injuries is excessive. If plaintiff will accept a reduction of the verdict for personal injuries to $1,200 the rule will be discharged, otherwise it will be made absolute.


author: Per Curiam:.

text:
    CHARLES M. WELLBROCK, RECEIVER, PLAINTIFF-APPELLEE, v. JAMES DUFFY, DEFENDANT-APPELLANT.
    Submitted January term, 1931
    Decided January 28, 1932.

      Before Justices Case, Daly aud Donges.
    For the plaintiff-appellee, M. Lester Lynch (William R. Gannon, of counsel).
    For the defendant-appellant, John D. Graven.

   Per Curiam:.

This is an appeal from a judgment of the First District Court of Jersey City in favor of the plaintiff-appellee and against the defendant-appellant for $255. The defendant, in the court below, moved to strike out the state of demand whereupon the parties to the suit, through their respective attorneys, entered into a written stipulation as to the facts involved in the ease and stipulated orally that if the court below decided said motion in favor of the plaintiff, it should be dispositive of the whole case and judgment should be entered in favor of the plaintiff and against the defendant.

The facts were that defendant was in possession of certain premises under a written lease commencing January 1st, 1927, for a period of five years. This lease provided for a monthly rental of $75 for the first two years of the term and $85 a month for the last three years thereof. The lease further provided that the lessee should deposit $255 as security for the performance of the lease “which security is to be applied on account as rent for the last three months of the term hereinabove demised, provided no default has been made in the within lease.” The defendant made the required deposit.

The holder of a second mortgage on the leased premises instituted to foreclose his mortgage, and, on December 2d, 1929, Wellbrock, the plaintiff, was appointed as receiver to manage the property, with power to sue for and collect the rents of the mortgaged premises. On August 12th, 1930, a deed was executed and delivered by the sheriff under the foreclosure proceedings. The defendant refused to pay the receiver the rents for May, June and July, 1930.

The defendant argues that the lease was terminated by the foreclosure of the mortgage and that the last three months ■of the term were the three months just prior to the giving of the sheriff’s deed. His contention is that he .should be credited with the $255 deposit made to his lessor against the rental for these three months, and, therefore, he owed no rent for May, June and July, 1930. The argument and the contention are not sound.

By the terms of the lease, the deposit was to be applied to the “last three months of the term demised.” This would be the months of October, November and December, 1931. The receiver was entitled to collect the rents until the purchaser under the sheriff’s sale became entitled to possession, and ■could sue for and recover judgment for unpaid rentals accruing before that time. The beginning of the ownership under the sheriff’s sale terminated defendant’s obligation to pay rent to the lessor, or the receiver in his stead, but did not fix the time for computing the “last three months of the term.” ’That period was fixed by the lease.

The judgment of the court below will be affirmed.


text:
    PETER VIVIANO, BY HIS NEXT FRIEND, GAETANO VIVIANO, AND GAETANO VIVIANO, INDIVIDUALLY, PLANTIFFS, v. THE SERVICE BOTTLING WORKS, INCORPORATED, A CORPORATION, DEFENDANT.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.

      For the rule, Alexander M. Macleod (Minium & TVem-. berger, of counsel).
    Contra, Ward •& McGinnis and Milton T. Richmond.

   Pee Cueiam.

Plaintiffs recovered judgments against the defendant upon verdicts rendered at a trial in the Passaic Circuit at which the defendant was not present or represented by counsel; and this is an application under defendant’s rule to show cause to set aside the judgments.

The action was brought on December 23d, 1929, to recover damages arising out of an automobile accident which occurred on August 19th, 1929. The defendant was insured by a policy of the Mayflower Fidelity and Casualty Insurance Company of Newark, and after the summons was served it was sent to that company, in accordance with the requirements of the policy, and an answer was filed in behalf of the defendant by Samuel M. Hollander, general attorney for the insurance company. Subsequently, the insurance company wa.s adjudged bankrupt and receivers were appointed by the Hnited States District Court in February, 1930. The attorney, who had filed the answer, forwarded the papers in the case to the attorneys for the receivers and also, on October 17th, 1930, notified the defendant by mail to secure other counsel and enclosed a substitution of attorney. Another attorney connected with the insurance company had written the defendant, immediately after the appointment of the receivers, advising it to secure other counsel. The attorney for the plaintiffs also, on August 15th, 1930, communicated with the defendant and advised it that its insurance carrier was in the hands of receivers.

The first and only request to the defendant to secure other counsel made to it by its attorney of record (the attorney provided under the terms of the policy to defend the interests of the insured and the insurance company) was the letter of October 17th, 1930, which was received by defendant October 20th, 1930. The officers of the corporation were foreigners of slight education to whom a substitution of attorney most probably was meaningless. They delivered it to one Brumberg, the insurance broker, who had written the policy of casualty insurance in behalf of the defendant. The broker returned the substitution of attorney with a letter to defendant’s attorney of record and it was by him delivered to the attorneys for the receivers. Neither this letter nor the substitution of attorney is shown in thé state of the case.

The case was reached for trial on October 24th, 1930. No one appeared for the defendant and the plaintiffs secured judgments totaling $8,500—$7,500 to Peter Viviano, the infant plaintiff, for personal injuries, and $1,000 to his father, Gaetano Viviano, the other plaintiff; and these amounts in face of the fact that it is not denied by the attorney of the plaintiffs that he had endeavored to settle both claims for $2,700.

The defendant shows it has a defense to the action on the merits of the case. It is quite evident that due to lack of knowledge of our language and law upon the part of the officers of defendant corporation; their reliance that Brumberg, the insurance broker would effectively take care of their interests, and the confusion flowing from the receivership and change of attorneys, defendant’s rights were neglected through no fault with which it should be conclusively charged, and that defendant was taken by surprise by the judgments entered against it.

Execution was issued upon said judgments and a levy made thereunder upon certain trucks owned by defendant, which levy was contipued under the terms of the rule to show cause.

The judgments should be set aside and a new trial be granted upon terms that the lien of the judgments continue under said levy as security towards the payment of any judgments which may be secured by the plaintiffs as the result of the new trial; that the defendant appear and defend upon twenty days’ notice of the time fixed by the court for the new trial, irrespective of the place on the court calendar which the action might otherwise have; and that defendant pay to plaintiff’s attorney the costs upon this action up to the present time, and upon this rule, as the same shall be taxed by the-clerk, within ten days after the service of notice of the time-fixed by the court for the new trial.

Under the terms stated, the rule will be made absolute.


text:
    PASSAIC NATIONAL BANK AND TRUST COMPANY, PLAINTIFF-APPELLEE, v. KARL KNAPP, DEFENDANT-APPEL-LANT, AND FRANK M. GRISWOLD AND IRA MASTENBROOK, DEFENDANTS.
    Argued January 21, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    For the defendant-appellant, Karl Knapp, Spindel & Bert.

    For the plaintiff-appellee, Feder & Rinzler.

   Pee Ctjeiam.

Action was brought in the Passaic District Court to recover upon a promissory note, of which the defendant Griswold was maker, payee and endorser, and defendants Mastenbroob and Knapp were endorsers. Defendant Griswold was not served with summons and judgment was entered against defendants Knapp and Mastenbrook. An appeal was taken by the defendant Knapp and the judgment was reversed as to Knapp (Passaic National Bank, &c., v. Griswold, 8 N. J. Mis. R. 262; 149 Atl. Rep. 629), wherein the court said: “It appears that the notice was not sent to the post office nearest to the endorser’s residence or to the post office wherein he was accustomed to receive his letters, or whore he conducted his business, nor to the place where he was sojourning, as required under section 108 of the Negotiable Instruments law. Nor does it appear that the notary exercised any diligence whatever in attempting to learn the endorser’s address. He made no inquiry of the maker, the officials of the bank, or any one else whether connected with the transaction or not, so that notice of dishonor could not be dispensed with under section 112 of the Negotiable Instruments act.” The case was thereupon remitted to,the Passaic District Court. The remittitur, in part, reads as follows: “It is thereupon ordered that the judgment of the said District Court be in all tilings reversed in so far as the same pertains to defendant-appellant, Karl Knapp, set aside and for nothing holden, costs of appeal to this court to be taxed, and the records and proceedings be remitted to the said Passaic District Court to be proceeded with in accordance with this judgment, and the practice of said court.”

The plaintiff then moved the case for trial against defendant Knapp in the Passaic District Court without issuing a new summons. The defendant entered a special appearance, and argued that the court was without jurisdiction again to try the case because of the opinion in this court and the remittitur. The court denied the motion to dismiss and again proceeded to trial, resulting again in a judgment against the defendant Knapp.

The plaintiff proved the note, also that it was due and unpaid, had been presented for payment and protested for non-payment; that notice of dishonor had been mailed to defendant Knapp at Passaic, New Jersey, in an envelope with proper postage thereon, and with the return address of the plaintiff, which letter had never been returned to the sender. The note was due August 13th, 1929, and notice of dishonor was mailed about eleven a. m. on August 14th, 1929. The plaintiff’s credit manager, note teller and the secretary of the notary public, who protested the note, testified, but none of these had any knowledge of defendant Knapp’s residence, place of business, the post office where he received his mail or where he was sojourning. No inquiry of any kind was shown to have been made to discover where notice of protest could reach Knapp, outside of an inquiry made by the secretary to Perne Pitman, the note teller, and his response was to mail the notice to Knapp in Passaic. Pitman had no knowledge of the residence or place of business of Knapp. While he testified that he knew that Knapp had been in business in Passaic, under the trade name of Passaic Cut Stone Company, ten or twelve years previous, he knew nothing about Knapp’s personal or business address since that time; and he admitted that, as far as he knew, Knapp had done no business with the bank during his, Pit-man’s, connection with the bank—eleven j^ears. “Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it cannot be given to or does not reach the parties sought to be charged.” Paragraph 112, Negotiable Instruments act. But, as said in the previous opinion in this court, and as it must be said upon the basis of the evidence presented at the second trial, it does not “appear that the notary exercised any diligence whatever in attempting to learn the endorser’s address.”

The maker Griswold testified for the plaintiff and it appeared from his testimony that he knew Knapp’s address; which was Clifton, New Jersey. No inquiry was made of him by the notary. No city directory or telephone directory was inspected which would have disclosed the address. Gris-wold testified Knapp had a telephone. Griswold and his wife testified for the plaintiff, and they said Griswold sent a telegram to Knapp the same day he received the notice of dishonor from the plaintiff which they testified was the day after the note was due. Grisswold could not tell what was stated in the telegram. Mrs. Griswold also said that she visited Knapp one to four days after the telegram was sent and Knapp showed her the telegram. Of what avail this to the plaintiff? Paragraph 90 of the Negotiable Instruments act provides, with respect to notice of dishonor: “The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up would have a right to reimbursement from the party to whom the notice is given.” Griswold was not the holder. He had no authority to give notice on behalf of the plaintiff holder. He was the maker of the note and the person primarily obligated to pay the note. Knapp was an endorser. Gris-wold, the maker, upon taking the note up would have no right of reimbursement from Knapp, the endorser to whom the notice was alleged to have been given by the telegram.

The defendant denied receiving the telegram. He also denied receiving notice of protest. He further testified he had lived in Clifton for seven years, that his place of business was in Clifton and had been for ten years, and that he received his mail through the Clifton post office. The address of Knapp did not appear on the note although the address of Griswold did appear.

No error is found in the court below having retained jurisdiction of the case, after the previous opinion herein and remittitur, without new process. While the Supreme Court reversed the judgment in favor of the plaintiff, there was no direction of a verdict in favor of the defendant.

There must be a reversal of the judgment against the defendant Knapp because there is no proof in the case that notice of dishonor was sent either (1) to the post office nearest Knapp’s place of residence or the post office where he was accustomed to receive his letters, or (2) to his place of business, or (3) to a place where has was sojourning. Nothing appears in the case to show notice of dishonor was dispensed with by reason of the provisions of paragraph 112 of the statute previously quoted.

The judgment will be reversed.


text:
    BENJAMIN KAHN, PLAINTIFF-APPELLEE, v. NICHOLAS D. AGGELAKOS, DEFENDANT-APPELLANT.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    For the plaintiff-appellee, Jacob Lubetlcin.

    For the defendant-appellant, George A. Henderson.

   Per Curiam.

This is an appeal from a judgment of the First District Court of the city of Newark in favor of the plaintiff and against the defendant for $500.

The suit was for damages sustained by the plaintiff as a result of being bitten by a police dog owned by the defendant. The plaintiff was a tenant in an apartment house owned by a corporation of which the defendant was an officer. As the plaintiff went through a hall in this apartment house, he was bitten by the dog. While there was no evidence that the dog had previously bitten anyone, there was evidence that the dog, while muzzled, had upon three previous occasions jumped upon other persons, one of whom the dog knocked to the ground.

There was evidence to charge the defendant with knowledge of these previous attacks by the dog, and the defendant was.personally present when one of these attacks was made. It was the practice of the owner to have the dog chained and muzzled and always to have the dog in the custody of some person if the dog were not chained.

The defendant-appellant urges as reasons for reversal that the court below should have granted his motions for a non-suit and a directed verdict on the grounds that there was no proof of knowledge on the part of the defendant of any vicious propensities on the part of the dog. But there was evidence of such knowledge. Hot of the dog previously having bitten anyone, it is true, but “where the proof to establish vieiousness and scienter consists of instances tending, more or less, clearly to indicate such a disposition and such knowledge, a jury question at once arises whether under the adduced proof the animal has displayed vicious propensities to the knowledge of the owner sufficient to rebut the presumption raised by the law in favor of domestic animals, and sufficient to charge the owner with scienter Emmons v. Stevane, 77 N, J. L. 570. There was such proof in this case and the motions for nonsuit and directed verdict were properly denied; and there was sufficient evidence to justify the jury in finding that the owner of the dog had knowledge that the dog had a vicious propensity to bite.

A number of objections to the court’s charge were presented. Considering these in connection with the court’s charge as a whole, there was no harmful error in anything the court said.

The judgment will be affirmed.


text:
    JOHN O’DONNELL, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF DANIEL J. O’DONNELL, DECEASED, PLAINTIFF, v. LAGGREN BROTHERS COMPANY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, AND PATRICK CONTEY, DEFENDANTS.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    Por the rule, Kellogg & Chance.

    Contra, Edward Griffin.

   Per Curiam.

This case has been twice tried. At the first trial, the jury returned a verdict of no cause of action as to the defendant Patrick Contey and a verdict for $.6,500 against the other defendant, Laggren Brothers Company, Incorporated. A new trial was awarded by this court because the verdict against defendant Laggren Brothers Company, Incorporated, was against the weight of the evidence in the case. 6 N. J. Mis. R. 1052.

Upon the retrial of the case, a jury again rendered a verdict against the defendant, Laggren Brothers Company, Incorporated, this time for $10,000, and the defendant obtained this rule and argues that the verdict should be set aside, because (1) the damages are excessive; (2) the trial judge erred in denying defendant’s motion for a directed verdict, and (3) the verdict is contrary to the weight of the evidence.

The plaintiff brought his action as administrator ad prosequendum, for the death of his minor son, Danied J. O’Donnell, a boy of almost fourteen years of age. Deceased was riding a bicycle on August 3d, 1926, in the city of Bayonne. -He proceeded westerly on Forty-fourth street to Broadway. The evidence showed Forty-fourth street to be thirty-three feet wide. When deceased reached Broadway, he slackened his speed to permit the truck of the defendant Contey to pass. The Contey truck was proceeding southerly on Broadway. There was no evidence as to the width of Broadway except that it was wider than Forty-fourth street—a witness who owned and conducted a store on Broadway testified it was “a little wider than Forty-fourth street.” The deceased drove his bicycle around the rear of the Contey truck and proceeded southerly on Broadway riding between the Contey truck and the westerly curb line of Broadway about two or three feet away from the truck at a point about midway between the front and rear thereof. When deceased on his bicycle reached a point, identified as from two to three stores south of Forty-fourth street—between fifty and seventy-five feet—his bicycle came in contact with the truck of Laggren Brothers Company, Incorporated, and deceased fell from his bicycle and was run over by the rear wheel of the Contey truck and thus killed. The Contey truck was described as a large truck, while the truck of Laggren Brothers Company, Incorporated, was a small one.

Plaintiff produced two witnesses, Della Jeffers and Jeannette Jeffers. Della Jeffers testified that the Laggren truck was parked on the westerly side of Broadway facing north, with its left side towards the west curb of Broadway; that when the Contey truck passed the southerly cross-walk of the intersection oE Broadway and Forty-fourth street—three stores away from where the Laggren truck was parked—it, the Laggren truck, began to turn and that it made “a big turn around” to go south on Broadway, and completed this turn between the west curb line and the Contey truck, which was then about in the middle of Broadway, and that the left rear wheel of the Laggren truck as the turn was completed struck the rear wheel of the bicycle and deceased was thrown under the right rear wheel of the Contey truck. The other witness produced by the plaintiff, Jeannette Jeffers, a daughter of Della Jeffers, who was fourteen years of age at the time of the accident, gave testimony substantially the same as that of her mother—with one material' difference hereafter referred to. It is upon the strength of this testimony that the plaintiff attempts to justify the verdict of the jury; and, yet, when this testimony is analyzed the conclusion is unavoidable that there is thus asserted a happening which was not physically possible. It cannot reasonably be inferred from the testimony in this ease that there was more than twenty-five feet between the curb and the large truck within which the turn of the small truck allegedly was made. The Contey truck was going at least ten miles an hour, and at ten miles an hour it would move the distance between the small truck and where it, the Contey truck, was at the time the small truck began to make the turn, about seventy-five feet, in five seconds. To believe Mrs. Jeffers’ testimony, you are required to believe (1) that the small truck, which was at least twelve feet long, made a complete turn (without any backing) within a width of twenty-five feet, and (2) made such complete turn in five seconds time. It is contended that the facts testified to by the plaintiff’s witnesses in relation to the direction and movement of the small truck, were in substance the same at the first trial as were testified to by them at the second trial. It is not surprising then that the Supreme Court in its opinion in disposing of the first rule to show cause asserted: “The whole story, however, that this truck had been parked facing in the wrong direction on the street, or that it made any movement, is so at variance ■ with the great preponderance of the evidence in the case that a new trial must be awarded.”

While Mrs. Jeffers testified that the left rear wheel of the small truck struck the rear wheel of the bicycle as the small truck completed its turn, and her daughter also testified that the left rear wheel of the small truck struck the. rear wheel of the bicycle, yet, her daughter seriously differs with the mother, in that she asserted that the boy had ridden southward between the two trucks for a distance of about fifteen or twenty feet before the accident actually happened. If this story be true, obviously no negligence was exhibited by the driver of the Laggren truck.

The defendant’s witnesses absolutely contradicted the testimony of the plaintiff’s witnesses upon which the plaintiff predicates his charge of negligence upon the part of the driver of the defendant’s car. All of the defendant’s witnesses testified that the Laggren vehicle was facing south on Broadway with its right side toward the west curb of Broadway and was at a standstill at or near the curb at the time of the accident and immediately prior thereto.

The verdict rendered in this case shows such a disregard for the great preponderance of the evidence that such verdict must be set aside.

The rule will be made absolute.


text:
    YETTA BITTERMAN AND ELIZER BITTERMAN, HER HUSBAND, PLAINTIFFS, v. FRANK MARINO, DEFENDANT.
    Submitted January term, 1931
    Decided January 28, 1932.
    Before Justices Case, Daly and Donges.
    Dor the rule, Aaron L. Simon.

    Contra, Charles W. Weeks.

   Pee Cubiam.

Samuel Bitterman rented an automobile from the Montauk U-Drive, Incorporated, and invited the plaintiffs, Yetta Bitterman, his mother, and Elizer Bitterman, his father, to take a ride therein to visit a sister of Yetta Bitterman at Jamaica, Long Island. While on their way through Union City, Hudson county, the automobile, driven by Samuel Bitterman, in which plaintiffs were riding, collided with an automobile owned and driven by the defendant. Plaintiffs brought suit against the defendant for the damages sustained by them as a result of the collision.

Samuel Bitterman was called as a witness for the plaintiffs. Upon cross-examination, he was asked if he had made a statement, after the accident, to some one at the place of business of the Montauk U-Drive, Incorporated. The witness denied that he had, whereupon he was shown a written statement and requested to identify his signature thereto. He replied that he thought it was his signature but that he was not sure. The statement was not written by Samuel Bitterman, except as to the signature. Thereupon, the statement was marked for identification. Upon further cross-examination, the witness admitted that he had verbally given some of the information contained in the statement to some one at the Montauk U-Drive, Incorporated, but positively denied having made those assertions in the statement, which, if true, would indicate negligence upon his part in the operation of the automobile. (The statement also contained an assertion that the witness had been fined $10 for reckless driving.) The defendant did not call as a witness the person who had actually written the statement nor was anyone else called to prove that Bitterman had made the statements therein contained which he swore he had not made. Defendant offered the statement in evidence just prior to closing his case and it was admitted in evidence over the objection of plaintiffs’ counsel.

The jury returned a verdict of no cause for action against the plaintiffs. Plaintiffs obtained this rule to show cause why a new trial should not be had and alleged as a reason therefor, among others, that the trial court erred in admitting into evidence the foregoing statement over the objection of plaintiffs’ counsel.

With this we agree. In the case of Altieri v. Public Service Railway Co., 103 N. J. L. 351; 135 Atl. Rep. 786, the trial court excluded a written statement alleged to have been made by a witness and offered for the purpose of disproving testimony given by him. Chief Justice Gummere, speaking for the Court of Errors and Appeals, said: “The statement was signed but not written by him, and contained matters contradictory, to some extent, of the testimony theretofore given by him. Before the paper was offered his attention was called to these contradictory statements, and he denied having made any of them. Ho attempt was made to challenge the truthfulness of his denial. Heither the person who wrote out the alleged statement nor anyone else was called for that purpose. In this situation, we are of the opinion that the exclusion of the paper was proper. If the defendant had desired to impeach the testimony of the witness while on the stand, it should have called the party who wrote the statement, or someone else having knowledge of the facts, to testify that it contained a true account of what the witness had then said. In the absence of such proof, the statement was not evidential for the purpose of impeaching the credit of the witness.”

The statement in the present case should have been excluded. Its consideration by the jury could not have failed to have had an effect prejudicial to plaintiffs’ case and was such harmful error that there should be a reversal.

As a new trial must be granted for the reason given, the court makes no reference to the other grounds relied upon by the plaintiffs, which, as they may be varied on a new trial, cannot, with any effectiveness, be made the subject of present decision.

Let the rule be made absolute.