text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALFRED A. KUSKE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 24, 1970

    Decided March 25, 1970.

      Before Judges Contokd, Collestek and Kolovsky.

      Mr. Kenneth 8. Javerbaum, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. N. Douglas Bussell, First Assistant Prosecutor, argued the cause for respondent (Mr. Joseph Tuso, Cumberland County Prosecutor, attorney).

      Mr. Alfred A. Kuske, defendant-appellant, filed a brief and rebuttal brief pro se.

   The opinion of the court was delivered by

Conford, P. J. A. D.

This is an appeal from a conviction of the defendant January 11, 1968 on two counts of an indictment charging, respectively, incest and sodomy with his 17-year-old daughter. These events are alleged to have occurred in July 1963.

The delay between the time of the commission of the alleged offenses and the trial is accounted for by these facts. Shortly after defendant’s arrest he waived indictment and trial and pleaded guilty to an accusation on these charges, beginning the service of a sentence thereon under the Sex Offender Act. But thereafter he was successful in this court in vacating the conviction on a post-conviction petition based upon alleged lack of understanding of the charge at the time of the plea and the failure of the sentencing judge to apprise defendant of his rights in the manner required by the rules of court.

We have presently not only to decide the appeal but also three motions which have been filed by defendant pro se. These are (1) for release on nominal bail; (2) to “settle the record,” based upon the contention that there are various omissions and alterations in the transcript of the trial, and (3) to remove assigned counsel and designate a substitute on the ground that Kenneth Javerbaum, who has been handling defendant’s appeal for the Public Defender’s Office, is not representing the defendant adequately.

Since we affirm the conviction, the motion for nominal bail is moot. The other motions will be dealt with after treating the merits of the appeal.

To understand the factual background of this case reference must be made to the history of defendant’s relationship with his family prior to the events of July 1963. Defendant was married and had four children, including the complaining witness. Shortly after moving from North Carolina to Denver, Colorado, in the early 1950’s, defendant was separated from his family. The complaining witness, Carolyn Kuske D-, was then six years of age. Defendant did not see any of the family again until the early summer of 1963, when the girl was 17. He visited her at that time in Denver, where she was living alone. She was then under the supervision of the juvenile court authorities of Colorado for some reason not reflected by this record. After the visit defendant arranged with the Colorado authorities to have the girl released in his custody. The plan was for her to stay with his widowed mother, who lived on a farm in Millville, N. J. On the same farm but in a separate nearby house lived defendant’s brother and sister-in-law and their young children.

Defendant came east before his daughter did and sent her a plane ticket. She was met by the defendant in Philadelphia July 15 or 17, 1963. He placed her in a hotel in Philadelphia for a few days and then brought her to his mother’s home in Millville, where they both stayed for several days.

Close attention must be paid to the testimony as to the dates of occurrence of the offenses charged because of the controversy over the validity of the amendment of the indictment, originally charging that the offenses occurred on the “24th day of July, 1963,” to read that they took place on “divers dates in the month of July, 1963.” Carolyn, who by the time of the trial was 23, married, with a child, and living in California, testified: “It was towards the end of July and we had sexual intercourse.” She did not indicate on direct examination that this act took place more than once. The intercourse was alleged to have occurred in her bedroom in the grandmother’s house when the grandmother was away. She also testified that on one specific occasion there was an act of sodomy between her and defendant. On both direct and cross-examination she was unable to specify the time of these occurrences other than that they transpired in the latter part of July. On at least two occasions during the further course of direct examination the questions of the prosecutor were framed in terms of “an act of intercourse.”

On cross-examination of Carolyn, however, it was brought out by defendant that sexual intercouse occurred twice in the grandmother’s house and once in a parked car in the nearby woods. The witness could not remember if the second act occurred on a different day from the first but stated that it was “probably” another day. The State adduced testimony by defendant’s sister-in-law and brother. They had taken the girl with them on a family vacation to Cape May, leaving July 28 and returning August 3. Mrs. Ann Kuske, the sister-in-law, testified that the girl told her during the vacation, somewhat hesitantly, that she had something to tell her which she was ashamed of, and that after they returned from the vacation, defendant having left the area to work on a ship, the girl told her what had happened.

Mrs. Kuske also testified that during the few days defendant and Carolyn were on the farm together defendant “acted towards her like a lover instead of a father” and that she “felt there was something wrong” between them even before Carolyn revealed the specifics. These observations were supported by testimony of defendant’s brother. The girl later showed the Knskes letters defendant had sent her after leaving the farm which tended to confirm what she had disclosed. (As to the letters, more infra). The Kuskes then brought the girl to the police with a complaint leading to' defendant’s arrest on these charges.

Defendant testified that he spent a few days in his mother’s house at the same time that his daughter was there, and that on July 21 he left Millville and went to New York to register for a seaman’s job at his union hall. He obtained a job on July 23 on a vessel moored at Port Elizabeth and stayed on that ship, which made a trip to Puerto Eico, until its return on August 2, 1963. He offered a union certificate in evidence certifying that the dates of the trip were July 23-August 2. A representative of the Sea-Land Company, owner of the ship, testified that the company’s records showed that defendant was hired July 23 and was actually on board ship at Port Elizabeth at least beginning 8 a.m. on July 24 and thereafter until the return of the vessel on August 2.

Defendant denied that he had ever committed any sex act at any time with his daughter. He testified that prior to his trial, and while confined in the Vroom Building of the State Hospital at Trenton in 19G7, he had been administered a series of electro-shock treatments which had badly interfered with his memory so that he could remember some things but not others.

I

The first ground of appeal is that the amendment of Ihe indictment, on motion of the State granted at the outset of the trial, is invalid in changing the specification of the dates of the offenses charged from July 24, 1963 to “divers dates in the month of July 1963.” Defendant contends that under State v. Grothmann, 13 N. J. 90 (1953), and State v. Sing Lee, 94 N. J. L. 266 (E. & A. 1920), the effect of this amendment was to charge him with multiple offenses in each category (incest and sodomy), whereas the grand jury had charged him with only one in each. Defendant argues he consequently was convicted of offenses never made the subject of an indictment by the grand jury.

In each of the cited cases there was an amendment, at the end of the trial, to change the allegation of a single occurrence on a day specified in the original indictment to a charge of multiple offenses on different dates, and testimony of the commission of the multiple offenses on the new dates specified in the amendment. In both instances the court held the amendments improper in that they subjected defendant to punishment for offenses not charged against him by the grand jury. The basic theory of these cases is that where the crime is not of a continuing nature (Grothmann involved inducing two female children to submit to the doing of an act which would tend to debauch their morals; Sing Lee involved carnal abuse), a charge of offenses occurring on different days is a charge of a separate crime for each occasion on which the act occurred. If the grand jury specifies an act on a particular day, only one offense is laid to the defendant. Where an amendment specifies different days, and proof is offered of the commission thereof on more than one of such different days, several offenses are charged. In other words, as stated in Grothmann:

But the effect of the amendments and the charge was to render the accused liable to conviction for an offense against each child not the subject of an indictment by a grand jury in accordance with [the State constitutional guarantee that no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury]. The amendments, made at the close of the State’s case on the Prosecutor’s motion, extended the time specification of the indictments to include in each at least two separate and distinct offenses committed, so the children testified, on days other than the day named in the indictment. [13 N. J., at 94]

There are two obvious differences between the present case and the situation in both Grothmann and Sing Lee. One is that the amendments in those cases were made at the end oí the trial rather than, as here, at the very beginning. The other is that the State here offered no proof in its own case that an act of either sexual intercourse or sodomy occurred more than once. (It will be recalled that evidence of more than one act of intercourse was brought out only by defendant on the cross-examination.)

The first-mentioned difference is not significant except to the extent that it might bear upon the defendant’s opportunity to prepare a full defense. Knowing of the amendment at the beginning rather than at the end of the trial obviously places defendant in a better position to meet anything new in the charge. But we think the second difference here from Grothmann and Sing Lee, mentioned above, precludes those authorities from conclusive effect in favor of defendant. As indicated by the Court of Errors and Appeals in State v. Naujoks, 95 N. J. L. 500 (1921), shortly after it decided Sing Lee, a mere change in the dates charged in a carnal abuse indictment will not automatically invalidate an amendment. The essential inquiry is whether the amendment purports to effect a correction in identifying the date (or dates) of the only offense (or offenses) intended to be charged by the grand jury, which is permissible, or whether the amendment purports to charge additional offenses besides that or those originally charged, which is not permissible (95 N. J. L., at 502). It was the nature of the trial proofs which showed what the true nature of the amendment was in each of the three cases cited. See e. g., 95 N. J. L., at 502.

Thus we regard it as conclusive that the State here at no time in the course of the case, from opening through summation, contended there was more than one act of intercourse or more than one act of sodomy committed by defendant in this State, and, as noted above, its proofs on direct examination of the complaining witness were specifically so confined. The State cannot be charged with expansion of the charges on the basis of proof developed by defendant on cross-examination that more than one act of incest occurred.

We accordingly conclude that defendant was not by virtue of the amendment convicted of any offense not charged to him by the grand jury. There was no prejudicial harm to defendant in that the jury may have determined his guilt on a finding that the acts charged occurred on a date or dates other than July 24 since it is well settled that where, as here, time is not of the essence of the offense, a variation in the proof from the date specified in the indictment will not vitiate the verdict. State v. Hubbs, 70 N. J. Super. 322 (App. Div. 1961).

II

Defendant argues that the trial court erred in refusing to grant the defense a continuance after the amendment of the indictment. The argument set forth is that the failure to adjourn the case after the amendment prejudiced the defendant in that he was not able properly tc prepare to defend against the possibility of proof of offenses during the month of July 1963 at times other than on July 24. He points out that he had an alibi defense prepared as to the specific date of July 24 (his presence on a ship at Port Elizabeth). The implication is that there was inadequate time to prepare to show where he was at all other times during the month of July.

The defense contention in this regard is not borne out by the record. Defendant was able at trial to say just where he was at all times during July 1963. In particular, the focus of the State’s proofs was on the period between July 15 or 17, when it is agreed that defendant met his daughter at the Philadelphia airport, and July 28, when it was testified to on behalf of the State that the girl was taken on vacation to Cape May by her aunt and uncle. Defendant’s own testimony and his corroborative proofs covered his whereabouts all during that period, and it is impossible to see how he was prejudiced by not being given a continuance to meet the amended indictment.

Ill

The defendant contends that there was error in that the State was permitted to introduce “inflammatory evidence” on cross-examination of the defendant. This point revolves around exhibits marked for identification S-l through S-5 inclusive. S-l to S-4 were letters that were written by the defendant to the complaining witness during the few weeks immediately after he left Millville and subsequent to the events which are the subject of this prosecution. S-5 is a telegram defendant sent to the girl at the high school she was attending at the time. All these documents were identified not only by the complaining witness but also, as to handwriting, by the defendant’s brother, Ewald Kuske. When defendant was confronted with them on cross-examination he did not deny that he wrote them. He simply stated he could not remember whether or not he had sent them, implying that his lack of recollection was due to the shock treatments which had previously been administered to him in the State Hospital.

The defendant’s essential point is that these letters and the telegram were never admitted in evidence and that it was therefore improper for the prosecutor to allude to them and to read excerpts from them during the cross-examination. If inadmissible, the letters were highly prejudicial; if admissible, highly probative of defendant’s guilt, as they contain material strongly corroborative of past improper sexual relations between the two and indicate plans for cohabitation in the future.

The difficulty which arose here was not the fault of the State, which offered the letters in evidence during the examination of the complaining witness, but rather that of the trial judge who reserved decision on admission at that time and continued to vacillate on the point during the remainder of the trial notwithstanding several additional efforts on the part of the State and the defense to obtain a ruling by the judge on admissibility — all in vain.

In the foregoing circumstances it seems to us that the question of fairness and justice to both sides must be resolved by determining whether these documents were actually admissible as a matter of law, and whether, if they were, defendant was in any way prejudiced by the absence of a ruling on the point throughout the trial. On the first question stated it is clear to us that the documents were competent as admissions or admissions against interest by the defendant. McCormick, Evidence § 113, pp. 234-235 (1954:); Evidence Ruie 63(10). The trial court should have admitted them when specifically offered on the State’s case. The objection by the defendant at that point was that a proper foundation had not been laid. We disagree. A proper foundation had been laid by the testimony of the complaining witness that she had received the letters signed by her father, as well as the telegram. Although she could not recognize his handwriting (apparently because she had never seen samples of his handwriting before) there is no real issue in this case that the defendant did not send these documents. As noted above, the handwriting was particularly identified by defendant’s brother.

Since the letters were admissible, the fact that they were “inflammatory” is inconsequential. The excerpts from the letters described as inflammatory are the very factors which establish the documents as competent admissions by the defendant. They were further properly useable on cross-examination (subject to establishment of authenticity) to attack the credibility of the defendant in his denial that the alleged criminal acts had ever taken place.

Nor can we discern prejudice to defendant from the failure of the court to rule on admissibility when it should have. There is no indication whatsoever that if the court had admitted these documents in evidence when offered, or at least after being authenticated by the defendant’s brother, defendant would have been able to counter their impact in any way by rebuttal or otherwise. His fixed position was simply that he could not remember whether or not he had sent them.

We find no prejudicial error in the use of the letters on cross-examination by the State.

IV

Defendant contends that various comments and trial tactics by the Prosecutor prevented a fair trial. There is no question about the fact, as the Prosecutor frankly admits in his answering brief, that he did “in the heat of battle” make improper comments during the trial. However, without condoning this at all, we are satisfied that there was no miscarriage of justice in this case as a result of the incidents complained of.

The first series of incidents involved came during the cross-examination of Officer Pangburn. The defense was given permission to examine the police report filed by this officer and the statement made by the complaining witness. Plainly improper comments were made by the Prosecutor during the interlude. However, we do not find them reversibly prejudicial, on the whole case.

Defendant succeeded in obtaining a ruling striking Pangburn’s remark that defendant appeared to be “remorseful” (when arrested). The trial judge could well have ruled the other way since evidence of conduct of an arrestee, as distinguished from words, does not constitute the basis for a claim of selfincrimination. As to this kind of description of a suspect, see 23 C. J. S. Criminal Law, § 871(2), p. 433; Commonwealth v. Smith, 350 Mass. 600, 215 N. E. 2d 897, 904 (S. Jud. Ct. 1966); State v. McGinnis, 158 Conn. 124, 256 A. 2d 241, 244 (Sup. Ct. 1969).

The defendant makes a special point as to a comment of the Prosecutor during the colloquy on the admissibility of exhibits S-l through S-5 discussed in the preceding point. The Prosecutor said, in relation to these exhibits, “and they also refer to certain other acts.” While it may have been technically improper for the Prosecutor to refer to the contents of any of these exhibits before a ruling by the court on their authenticity, nevertheless we cannot find any injustice to the defendant in the allusion “to certain other acts'5 since it is well established in consent-sex cases that acts of sexual relations between the parties prior to the act charged may be given in evidence as tending to sustain the principal charge by showing the relation and intimacy of the parties and corroborating the testimony of the complaining witness as to the particular act involved, and to show the guilty intent. 44 Am. Jur., Rape § 80, pp. 950—951; and see dictum to the same effect in State v. Di Giosia, 3 N. J. 413, 419-420 (1950).

V

The defendant argues that remarks by the trial judge to the jury when they returned during their deliberations to ask for a reading of certain dates involved in the case resulted in the jury precipitately coming to a conclusion on the case, as indicated by their return 20 minutes later with a guilty verdict on both counts. The defense contends that the matter of dates was important. This is so, but to a limited extent. The report of the chief of police indicated that the complaining witness had told the police that some of the occurrences took place early in July, which would tend to contradict her testimony that the acts in question took place during the latter part of July. But in view of the overwhelming corroboration of the complaining witness’s account of the crimes charged, the failure to furnish this information to the jury was not prejudicial, even though it was questionable for the judge not to honor the jury’s request in full. (Part of the information requested was supplied.)

We cannot approve of the tone of the judge’s admonition to the jury that it was their responsibility to remember the dates as to which they sought refreshment of recollections. A trial judge should always show patience and courtesy to a jury requesting further information whether he sees fit to grant the request or not. But we cannot agree with defendant that the nature of the judge’s reception of the jury’s request caused them to arrive at an unjust verdict or one not the result of mature deliberation. As already indicated, the guilt of the defendant was convincingly established by the evidence, and the verdict cannot realistically be appraised as anything but a product of the evidence laid before the jury. Cf. State v. Ripa, 45 N. J. 199, 205 (1965).

VI

Defendant’s pro se briefs, in addition to material we deem not meriting separate discussion in this opinion, charge error in the refusal of the trial court to grant the defense a one-week trial adjournment sought by counsel. This argument has two facets. The first is in relation to the effect of the refusal of adjournment on the ability of the defense to meet the changed specification of dates of offenses encompassed by the amendment of the indictment. This has already been discussed in part. The second is the contention that the defense was prevented from subpoenaing witnesses who would have buttressed the defendant’s contention that he could not have been in Millville on July 23, 24 and 25; 1963 because he had signed up for service on the Sea-Land vessel out of Port Elizabeth on July 23. However, the transcript does not indicate any contention by trial counsel, when he requested the adjournment, that he would be unable to supply any necessary witnesses for the establishment of this point if his request was not granted. His argument was only that he had been under the treatment of a physician and that he was not able to “spend the time in the preparation of this case on such short notice * *

The “appendix” to defendant’s pro se rebuttal brief sets forth a series of documents and letters not in the record to support his contention that he would have been able to offer a more conclusive case of absence from Millville on July 23, 24 and 25 if trial counsel had been given an adjournment. Our examination of these documents satisfies us that most of them are merely cumulative of what the defendant did introduce at the trial to show that he had signed up for the sea trip on July 23 and was on the vessel physically and continuously after 8 a.m. on July 24, 1963. As noted herein-above, defendant produced a representative of the Sea-Land Company who gave full information on this subject. Some of the other data furnished by defendant consisted of correspondence from one David Cohn in 1967 and 1968 indicating that he was also a member of the crew and remembers working with Kuske on the vessel on July 24, 1963. Cohn explicitly states in the correspondence that he cannot remember anything involving dates except as to July 24 and thereafter. Thus defendant’s argument that had the trial been adjourned he would have been able to produce Cohn as a corroborating witness fails to show material prejudice (assuming he could actually have produced Cohn as a witness at the trial) since the latter’s testimony would only have been cumulative.

Apart from the foregoing, there was no mistaken exercise of discretion on the part of the court in refusing an adjournment of the trial.

YII

Before the hearing of the appeal defendant made a pro se motion to “settle the record”, claiming errors in the trial transcript. This was after the Public Defender’s representative assigned to the case refused, after investigation, to make such a motion for lack of factual foundation therefor.

The appeal in this- case has been considered by the court on the basis of a typewritten transcript of the proceedings at trial certified in writing to be true and accurate by the certified shorthand reporter who served as reporter at the trial. Defendant’s motion asserts that certain statements, which he specified verbatim, were actually made in the course of their testimony by the complaining witness, the police chief, the witness E. M. Kuske, and himself, but are not shown in the certified transcript. As to most of these specifications, the official transcript shows subject matter substantially the same as what defendant asserts was omitted. There would therefore be no prejudice in respect thereof even if defendant’s allegations were true. However, the State has at our request filed an affidavit of the reporter with this court responding to the allegations of the motion. The reporter categorically denies defendant’s assertions as to the alleged omissions and states that upon comparison of his original notes with the certified transcript he finds the latter to be true and correct. We accept the reporter’s statement as against that of defendant as a matter of credibility. We have no hesitancy in deciding, under all the circumstances, that no formal hearing is warranted for determination of the facts controverted on the motion and that the motion should be denied.

Defendant has also, as noted above, filed a motion to remove Mr. Kenneth S. Javerbaum, Assistant Deputy Public Defender, as his attorney on this appeal, and to assign other counsel instead. This is based (1) on an assertion of “conflict of interest”, since defendant claims to have charged Mr. Javerbaum before the federal district court with “dereliction of duty to his client”; and (2) Mr. Javerbaum’s failure to move to “settle the record.”

What the dereliction alleged in the federal court consists of is here unspecified. Our observation is that Mr. Javerbaum has conducted defendant’s appeal ably and resourcefully, both as to brief and oral argument. Erom our discussion above of the motion to settle the record, it is clear that the Public Defender’s Office was well-advised not to prosecute it.

The motion to relieve and substitute assigned counsel is denied as without merit.

Judgment affirmed.


source: Caselaw Access Project

author: Yanoff, J. D. C.

license: Public Domain

text:
    ROBERTS, WALSH & COMPANY, PLAINTIFF, v. JACK TRUGMAN, CLARA LOEB AND WILLIAM LOEB, DEFENDANTS.
    District Court, Essex County
    Decided April 13, 1970.

      Mr. Charles B. Turner for plaintiff.

      Mr. Jack Trugman argued the cause pro se.

      Mr. Benjamin D. Braelow for defendant Clara Loeb.

      Mr. Paul B. Lawless for defendant William Loeb {Mr. Nathan A. Whitfield> attorney).
   Yanoff, J. D. C.

This is an action brought by a court reporter against an attorney and a husband and wife for the cost of depositions in the case of Loeb v. Loeb, Docket M-7097-63. The court reporter testified that he extended credit to the attorney, Jack Trugman alone, and therefore he is primarily liable. That the depositions were taken and the price reasonable are conceded. Trugman cross-claims aaginst both husband and wife, contending that the primary obligation for payment is upon his client, Mrs. Loeb, in that he was the known agent for a disclosed principal.

In the previous matrimonial litigation there was an order amending the judgment nisi, dated December 8, 1965, in which the attorney for Mrs. Loeb was awarded a counsel fee of $1,250 and Dr. Loeb directed to pay the costs of depositions at the time of the entry of final judgment. After succeeding in the divorce action the wife sought to dismiss her action, without success in the first instance. As the result of appellate rulings in Loeb v. Loeb, 91 N. J. Super. 333 (App. Div. 1966), aff’d 50 N. J. 343 (1967), a judgment of dismissal was entered as to the wife’s divorce action on December 6, 1968, which provided for “no costs.”

The husband contends, under Iovino v. Iovino, 58 N. J. Super. 138 (App. Div. 1959), that because the action was dismissed at the instance of the wife he is relieved of responsibility.

At trial the wife stated that she was not notified or consulted about the taking of the depositions. Trugman testified that she was consulted and agreed that depositions be taken, although he does not assert an express promise on the part of the wife to pay for them. He does claim that by reason of prior relationship in a suit for separate maintenance, it was clear to the wife that she would be expected to pay for the depositions.

The attorney relies upon Klein v. Boylan, 115 N. J. L. 295 (Sup. Ct. 1935), in which the client was held responsible to an engineer engaged by an attorney in aid of litigation. Accord, Klein v. Boylan, 14 N. J. Misc. 323, 184 A. 736 (Sup. Ct. 1936).

Plaintiff relies upon Baer v. Williams, 75 N. J. L. 30 (Sup. Ct. 1907), in which it was held error to reject evidence of a custom in the medical profession that where a physician calls in a physician, the consulting physician must look to the patient for payment. Plaintiff argues that the custom in court reporter-attorney dealings is that the attorney is responsible for payment.

From my observation of the parties, I am convinced that the testimony of defendant, Trugman, rather than that of Mrs. Loeb, on the question as to whether she was consulted about the taking of the depositions, must be accepted. I also accept his statement that the transcripts of the testimony were delivered to Mrs. Loeb for her perusal and do not give credence to her testimony to the contrary.

The attorney relies upon N. J. S. A. 25:1-5(b), urging that his promise, if any, is to answer for the debt of another, and it must therefore be evidenced by a written memorandum. However, if his promise was an original obligation, as plaintiff contends, the statute of frauds is not applicable. City Nat. Bank. & Trust Co. of Salem v. Hassler, 9 N. J. Super. 153 (App. Div. 1950).

Therefore, the basic question as to whether the attorney is responsible to a court reporter by reason of extension of credit to the attorney cannot be avoided. The competing lines of argument may be summarized as the agency approach, supported by a very respectable line of authority (see Annotation, 15 A. L. R. 3d 531), against the contention that extension of credit to the attorney in the light of a business practice that the attorney is responsible renders the attorney liable to the court reporter. To determine that the attorney, as agent, has power to bind the client is not to answer the problem fully. As the court observed in Looman Realty Corp. v. Broad Street Nat. Bank of Trenton, 32 N. J. 461 (1960):

The contractual status of an agent who signs a contract on behalf of a partly disclosed principal is not exactly clear. In the disclosed principal situation, where the principal’s identity is known to the other contracting party and where the agent expressly signs in a representative capacity, the principal, not the agent, is liable on the contract. Colloty v. Schuman, 73 N. J. L. 92 (Sup. Ct. 1905). Nevertheless, an agent acting for a disclosed principal may agree with the other contracting party that the agent also will be a party to the contract, [at 476]

One cannot ignore the fact that the third party and the agent may agree that the agent be bound, even though there is a disclosed principal.

The Klein cases, supra, are not contrary to this ruling. There the third party sued the client, apparently taking the position that the credit was extended to him and not to the attorney. Here I cannot avoid concluding that the credit was extended to the attorney, not the client. Mrs. Loeb, if known to plaintiff prior to the taking of the depositions, was at most only a name; Trugman was a member of the bar and therefore prima facie worthy of credit. Plaintiff came at his request, not his client’s. Trugman did not tell plaintiff to bill the client, and it was Trugman who was billed. In fact, plaintiff testified that he would not deal with non-lawyers.

Plaintiff’s position is reinforced by his uncontradicted testimony that it is the practice and custom in court reporter-attorney dealings that the attorney, not the client, be responsible for payment for depositions.

The Restatement, Contracts, § 247(c) at 349 (1932), states:

A usage is operative upon parties to a transaction where and only where
(c) The usage exists in such transactions and each party knows of the usage or it is generally known by persons under similar circumstances, unless either party knows or has reason to know that the other party has an intention inconsistent with the usage.

Baer v. Williams, supra, is only one of many cases in which trade practice and usage was incorporated into a contract. Rodman v. Weinberger, 81 N. J. L. 441 (E. & A. 1911); Calumet Const. Co. v. Board of Education, 78 N. J. L. 676 (E. & A. 1910); Wallace, Muller & Co. v. Leber, 65 N. J. L. 195 (E. & A. 1900); see Leitner v. Braen, 51 N. J. Super. 31 (App. Div. 1958); 5 Williston, Contracts (3d ed. 1961), § 657, at 87. Here it is incorporated with respect to the party obligated.

While it is true that “where custom is relied on to explain a contract, it must be specially pleaded,” Johnson v. Hoffman, 7 N. J. 123, 133 (1951), here it was admitted without objection and may therefore be considered. Leitner, supra.

It follows that plaintiff is entitled to judgment against Trugman in the sum of $570.40.

However, Mr. Trugman is entitled to judgment on his cross-claim against his client. An attorney may recover in quasi-contract for the reasonable value of his services. Sweeney v. Veneziano, 70 N. J. Super. 185 (App. Div. 1961). Clearly, this extends also to his disbursements. This is supported by the logic of the Klein cases, supra. That at one stage in the matrimonial litigation Dr. Loeb was directed to pay for the cost of the depositions is now immaterial since payment was not made. It was Mrs. Loeb who voluntarily'' dismissed her divorce action after judgment nisi, and it would be inequitable to permit her to relieve herself from liability to her attorney, who was thereby deprived of reimbursement.

The complaint and cross-claim as to Dr. Loeb will be dismissed without prejudice. While our courts have a strong policy in favor of disposing of all controversies among parties in a single action, N. J. Highway Authority v. Renner, 18 N. J. 485 (1955), this is a matter whieh particularly involves the matrimonial court. That court has dealt with it in the complex litigation between Mrs. and Dr. Loeb. To deal with this small, single problem outside of the tangle of litigation in which they have been involved might do violence to the entire pattern.


author: Jacobs, S. J. A. D.

text:
    SAMUEL TEMPLETON, PLAINTIFF-APPELLANT, v. BOROUGH OF GLEN ROCK, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided December 15, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. David Cohn argued the cause for the appellant (Mr. Max Rosenlloom, on the brief).

      Mr. George Winne argued the cause for the respondent (Messrs. Winne & Banta, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The plaintiff appeals from a summary judgment of dismissal entered in the Law Division in favor of the defendant, Borough of Glen Rock.

The plaintiff’s complaint, filed on April 14, 1950, and thereafter duly served, alleged that the Borough of Glen Rock, engaged in an undertaking for. profit and through the Glen Rock Independence Day Association, Inc., conducted a carnival and exhibit on July 4, 1949, for profit at the Glen Rock School. It further alleged that at that time the plaintiff, an invitee at the premises, was injured through the negligence of the Borough, the Association, and another named defendant, and sought damages. Cf. Leeds v. Atlantic City, 13 N. J. Misc. 868 (Cir. Ct. 1935); Kane v. Board of Education of Montclair, 20 N. J. Misc. 7 (Sup. Ct. 1941).

Before answer the Borough served notice of motion for summary judgment pursuant to Rule 3:56-3. The notice was accompanied by an affidavit of Mayor Frederick A. Demarest which siinplv denied that the Borough had engaged in an undertaking for profit or in the carnival and exhibit or that the Borough had received or was entitled to receive any moneys therefrom and stated that the minute book of the Borough did not contain any resolution or motion authorizing the holding of the carnival and exhibit and it was not engaged in the conduct thereof.

An affidavit by Mr. Albert Boustead submitted by the plaintiff in opposition to the motion set forth that he had been a resident of the Borough for the past eight years; during all of these years there had been annual carnivals and exhibits similar to the one conducted on July 4, 1949; he recalled that previous to each carnival and exhibit there had been notices in the local papers and handbills stating that the Borough was again sponsoring the 4th of July celebration and was again engaging the Association to conduct the carnival and exhibit on its behalf and inviting inhabitants of the Borough and their friends to the carnival and exhibit “to be sponsored, conducted, and supervised by the Borough through its arrangement and agreement with the” Association; at the carnival and exhibit an admission charge was imposed which was paid by him and the plaintiff and the moneys realized were, as far as he could ascertain, “turned over on a percentage basis under the Borough’s working agreement” with the Association. On the basis of the aforementioned affidavits the court on May 23, 1950, ordered that summary judgment be entered in favor of the Borough. Plaintiff’s appeal is from the ensuing judgment and the respondent has raised no question as to its appealability at this time. Cf. Rule 3 :54-2; Hogan v. Hodge, 6 N. J. Super. 55, 59 (App. Div. 1949).

The terms of our Rule 3 :56 — 3 were based upon Federal Rule 56(c) which permits the entry of summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Taub v. Taub, 9 N. J. Super. 219 (App. Div. 1950). The requirement in our rule that the absence of any disputed material facts must appear “palpably” conforms with earlier ’ state and actual federal practice. See Louis Kamm, Inc., v. Flink, 113 N. J. L. 582, 596 (E. & A. 1934); 2 Waltzinger, New Jersey Practice, p. 893 (1949); 48 Col. L. Rev. 780 (1948). In considering a motion for summary judgment the court is “quite critical of the papers presented by the moving party, but not of the opposing papers” (Hoffman v. Partridge, 172 F. 2d 275, 276 (D. C. Cir. 1949)), and will grant it only upon clear showing. Mitchell v. Wrightstown Community Apartments, Inc., 4 N. J. Super. 321, 326 (App. Div. 1949). This is particularly true where the crucial facts are within the sole knowledge of the moving party. Bozant v. Bank of New York, 156 F. 2d 787, 790 (2d Cir. 1946). Cf. Dalz v. Barry, 115 N. J. Eq. 84, 87 (E. & A. 1934).

Summary judgment is recognized as a wholesome device which may avoid needless delay and expense in awaiting and conducting trial; and the expeditious determination of a cause is admittedly an important goal of our.present rules of practice and judicial administration. Nonetheless when its attainment involves 'the deprivation of a full and fair trial on disputed facts, its price comes too high. See Doehler Metal Furniture Co. v. United States, 149 F. 2d 130, 135 (2d Cir. 1945); Transcontinental G. P. L. Corp. v. Borough of Milltown, 93 F. Supp. 283, 286 (D. N. J. 1950). In the Doehler case the court noted the time lost in the federal courts where summary judgments have been imp.rovidently entered and reversed on appeal; similar instances in our state courts are not at all rare. See, e. g., Mitchell v. Wrightstown Community Apartments, Inc., supra; Hodes v. Dunsky, 5 N. J. Super. 333 (App. Div. 1949); Lionshead Lake, Inc., v. Township of Wayne, 9 N. J. Super. 83 (App. Div. 1950). In appropriate circumstances premature summary determination might perhaps be avoided by more liberal use of the court’s comprehensive power to continue the motion, with conditions if necessary, where pretrial depositions and discovery may serve to remove doubts as to whether there are disputed questions of material facts. Cf. Rule 3:56—7; Goldboss v. Reimann, 44 F. Supp. 756 (D. N. Y. 1942).

In the instant matter we have concluded that the Law Division erred in granting the Borough’s application for summary judgment upon the meager showing made and without affording to the plaintiff reasonable opportunity for depositions and discovery. The facts pertaining to the Borough’s participation, if any, in the carnival and exhibit were within the knowledge of the Borough and not the plaintiff. Although the Mayor’s affidavit contained general denials it did not set forth how the carnival and exhibit were actually arranged and conducted. Similarly, there was no denial or explanation of the newspapers and handbills which allegedly stated that inhabitants of the Borough and their friends were invited to attend the carnival and exhibit to be sponsored, conducted and supervised by the Borough through its arrangement with the Association. We need not suggest that these statements or Mr. Boustead’s allegation that, as far he could ascertain, admission fees paid at the carnival were turned over on a percentage basis under the Borough’s working agreement with the Association, constituted any legal evidence. They evidently represented the limited sources of information available to the plaintiff upon which his complaint was based and it seems to us that, on the application for summary’ judgment and under the particular circumstances presented, they may be considered as having raised a factual doubt which the Borough neglected to meet and overcome. We consider the suggested improbability of the plaintiff’s allegation that the Borough conducted a carnival and exhibit for profit to be beyond the point (Jaeger v. Naef, 112 N. J. L. 417, 420 (Sup. Ct. 1934)), and since fhe matter has not been argued we do not pass on any issue relating to the Borough’s power to engage in such activity; we are satisfied that, on its motion for summary judgment based upon the palpable absence of genuine issue as to any material fact challenged, the Borough failed to make the required showing.

The summary judgment is reversed, costs to abide the event.


author: Proctor, J. A. D.

text:
    MATTIE BARWICK, PLAINTIFF-APPELLANT, v. GENDEL REALTY CO., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided December 27, 1950.

      Before Judges Freund, Proctor and Rogers.

      Miss Lillian Clawans argued the cause for the appellant.

      Mr. Sidney M. Schreiber argued the cause for the respondent (Messrs. McKeown, Schreiber & Lancaster, attorneys).
   The opinion of the court was delivered by

Proctor, J. A. D.

Plaintiff tenant appeals from a judgment of dismissal, granted on motion of defendant landlord at the termination of the plaintiff’s case, in an action for personal injuries sustained as a result of a breach of the landlord’s agreement to repair the premises.

On December 1, 1947, defendant, through Wilner, its authorized agent, advised plaintiff that it had acquired title to the premises, a multiple-family house, in which she was occupying an apartment with her father. Referring to a paper from the former owner, Wilner asked for Thomas Barwick, plaintiff’s husband, and 'was informed that he did not live in the apartment. Wilner then said, “I am the new landlord and we will get along just like you did with the other landlord, and anything to be fixed, we will take care of it.” Thereupon, plaintiff paid him the rent.

When Wilner collected the rent in Eebruary, plaintiff, remarking, “There must be a pipe busted,” told him that water was seeping through the ceiling above the kitchen stove, causing the plaster to become cracked. About two weeks later, after showing Wilner the condition, the plaintiff again complained that water was leaking through the ceiling and she had to use pans to catch it. When paying the rent in March, she once more complained to Wilner, stating that the condition of the' ceiling was becoming worse and that “it looked like it would come down and that something should be done about it.” Again, on April 2nd, she complained to Wilner. On each of the above occasions, he promised to remedy the condition. Plaintiff’s father also complained about the ceiling to Wilner' in Eebruary and March, but did not mention the condition when paying the rent to defendant’s lawyer at the latter’s office on April 2nd. On April 8th, the plaster fell and injured the plaintiff. Later, defendant repaired the ceiling.

The trial judge ruled that' defendant, on December 1, 1947, intended that the plaintiff was to be the tenant in place of her husband, the former tenant. However, the judge dismissed plaintiff’s action on the ground that any agreement to repair was waived by the payment of rent on April 2, 1948, because there was no proof that at the time the rent was paid the landlord agreed to make repairs; that “under the circumstances, there was a waiver of that promise and a new tenancy was created on April 2, 1948.”

The above ruling was predicated on the theory that the tenancy ended at the expiration of each month. This was error.

The tenancy created on December 1, 1947, being for an indefinite term at a monthly rent, was one from month to month. Maier v. Champion, 97 N. J. L. 493 (E. & A. 1922). Therefore, plaintiff’s continuing in possession and paying the rent was a continuation of the original letting and not a new tenancy. See Jador Service Co. v. Werbel, 140 N. J. Eq. 188 (E. & A. 1947); cf. P. L. 1941, c. 317, p. 856, § 1 (R. S. 46:8-10). See also Balsham v. Koffler, 8 N. J. Super. 48 (App. Div. 1950).

The duty to repair, incurred by defendant’s promise at the commencement of the tenancy, remained in force at the time of plaintiff’s injury, and plaintiff had done nothing to relinquish her right corresponding to that duty. There was no waiver of the promise to repair. Orlando v. Camden County, 132 N. J. L. 173 (Sup. Ct. 1944).

Harenburg v. August, 119 N. J. L. 83 (E. & A. 1937), and Stein v. Porter, 96 N. J. L. 30 (Sup. Ct. 1921), relied upon by defendant, are not in point. In the Harenburg case, the parties, with knowledge of the physical conditions, entered into a new lease at a reduced rental, without any complaint or agreement to alter the demised premises. In the Stein ease, the only point involved was the length of notice to vacate in a dispossess proceeding of a tenant from month to month.

Defendant contends that there was no consideration for its promises to repair, each such promise being in the category of a nudum pactum, because plaintiff was a month to month tenant and, therefore, an}^ promise after the letting by the defendant, in the absence of an agreement by the plaintiff to remain only on condition that the repairs be made, was without consideration. The point is without merit. The evidence shows that an agreement to make repairs was made at the inception of the tenancy created by the parties on December 1, 1947. This is the theory upon which the trial judge ruled. Under the terms of the tenancy, the defendant obligated itself to repair the premises. A tenant’s injury, resulting from a default in such undertaking, is actionable. Watkins v. Feinberg, 128 N. J. L. 79 (Sup. Ct. 1942); affirmed, 129 N. J. L. 386 (E. & A. 1943). Such default in essence is not contractual but tortious, i. e., the failure of a legal duty that is denominated negligence. Folley v. United B. & L. Ass’n., 117 N. J. L. 54 (Sup. Ct. 1936).

Defendant further contends that plaintiff was guilty of contributory negligence and that she assumed the risk. In view of the repeated complaints by the plaintiff of the condition of the ceiling and the express reaffirmations of the landlord that the repairs would be made and plaintiff’s reliance thereon, we find that it was for the trier of the facts to determine whether, under the circumstances, plaintiff was negligent and assumed the risk of danger. Watkins v. Feinberg, supra.

We find no merit in plaintiff’s contention that the court erred in refusing to admit in evidence the registration certificate filed by a former owner of the premises with the Office of Price Administration in relation to the occupancy of a former tenant.

Reversed and remanded, costs to abide the outcome.


text:
    FRED GILL, PLAINTIFF-RESPONDENT, v. JEROME J. KRASSNER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided December 15, 1950.

      Before Judges Freund, Proctor and Rogers.

      Mr. Edmund J. Canzona argued the cause for the respondent (Messrs. Parsons, Labrecque, Canzona & Combs, attorneys).

      Mr. Samuel A. Larner argued the cause for the appellant (Messrs. Budd & Larner, attorneys).
   The opinion of the court was delivered by

Proctor, J. A. D.

This is an appeal from a judgment in the Law Division of the Monmouth Cotmty Court upon a verdict in favor of the plaintiff.

Defendant contends that the trial court fell into error in submitting to the jury the question of defendant’s liability, and that the verdict was against the weight of the evidence.

The injury complained of was the result of a fall of the plaintiff, a customer, in defendant’s confectionery store. Plaintiff testified that he entered the store and walked in a normal manner down the aisle betiveen the stools at the soda counter and the tables, and fell because his left leg “skidded” as he was about to “reach” for the last stool. He then noticed a “skid” mark about 12 or 18 inches long and about an inch wide made by the heel of his shoe. He also noticed “soft wax plowed up on either side like you would scrape it with a putty knife or something;” further, that there were “various spots, especially along the counter and footrail of the soda bar where the wax was very heavy. You could scrape it off with your fingernail;” that the wax was about one-sixteenth of an inch thick and was of an amber color; that he picked up some of the substance.

An investigator for plaintiff testified that he later examined the floor at or near the spot where plaintiff fell, and that he rubbed his lieel on the floor, leaving a mark about three or four inches long and about a quarter of an inch wide. He further testified, “The other part of the floor appeared to have been waxed with a rotary machine and there was indications of that over the rest of the floor.” There was also testimony that no change had been made in the condition of the floor between the time of plaintiff’s fall and the witness’ inspection.

Three employees of defendant, one of whom was in charge of the store, testified to the effect that the floor was waxed by the Superior Floor Waxing Company and about 15 minutes after the floor was finished, the plaintiff entered. They further testified that the plaintiff came in walking “rapidly,” and proceeded to the far end of the soda counter, where he fell: that after plaintiff’s fall, they did not see any loose wax or “skid” marks on the floor. A customer testified substantially to the same effect.

The applicable rule is stated in Bosze v. Metropolitan Life Ins. Co., 1 N. J. 5 (Sup. Ct. 1948), as follows:

“* * * that jn or(j(;r that negligence may be inferred from the fact of oiling or vraxing a floor, it must appear that either in the nature or quantity of the substance used, or in the manner or time of its application, there ivas a departure from the normal or generally accepted standards so as to create a hazard of a tortious character for the users of the premises. Coyne v. Mutual Grocery Co., Inc., 116 N. J. L. 36 (Sup. Ct. 1935) ; Abt v. Leeds & Lippincott Co., 109 N. J. L. 311 (E. & A. 1932) ; Shipp v. Thirty Second St. Corp., 130 N. J. L. 518 (E. & A. 1943).”

The Appellate Division in Knapp v. Seton Inn., Inc., 5 N. J. Super. 226 (1949), in applying the above rule, held that evidence that there were “skid” marks on the floor after the fall and that the wax was soft and that there were ridges or indentations in the wax was sufficient to create a jury question, as to whether the defendant was negligent in the manner in which it applied the wax or in the nature or quantity which it used. The court said:

“Such evidence can justify a jury in finding that the defendant deviated from the normal standard of waxing a floor so as to create a hazard for the users * * *.”

See also Huddleson v. Lerman, 8 N. J. Super. 144 (App. Div. 1950); Berardo v. Ambrozy, 128 N. J. L. 295 (Sup. Ct. 1942) ; Burdge v. The Retail Department Stores, 129 N. J. L. 228 (Sup. Ct. 1942); affirmed, 130 N. J. D. 81 (E. & A. 1943) .

In passing upon the motion for dismissal, the trial court was, of course, required to view plaintiff’s evidence, together with ¿11 inferences which may be reasonably drawn therefrom, in the light most favorable to the plaintiff. Pirozzi v. Acme Holding Company of Paterson, 5 N. J. 178 (Sup. Ct. 1950).

In view of the testimony presented in plaintiff’s behalf, there was sufficient evidence for the jury to find, as it did, that the waxing had been done in an improper and negligent manner to bring the case within the application of Knapp v. Seton Inn, Inc., supra. The trial court did not err in denjdng defendant’s motion for a dismissal.

Defendant further contends that the waxing was done by an independent contractor and, in the absence of evidence of notice of the condition, defendant is not liable.

The plaintiff was lawfully on the premises as an invitee. Defendant owed him a duty not only to exercise ordinary care to render the premises reasonably safe for the purposes for which the invitee entered, but to abstain from any act which would make the invitee’s use of the premises dangerous. Finnegan v. The Goerke Co., 106 N. J. L. 59 (E. & A. 1929). That duty the defendant could not delegate, nor could he relieve himself thereof by engaging an independent contractor to discharge it for him. Under the circumstances, the defendant is liable for the delects in the ultimate result accomplished by his contractor, i. e., defendant’s duty to exercise due care in the maintenance of the store remains with him whether he chooses to discharge that duty himself, or by his employee, or by a third party who, as to defendant, may have the status of an independent contractor. Levine v. Bochiaro, 137 N. J. L. 215 (E. & A. 1948); Hussey v. Long Dock R. R. Co., 100 N. J. L. 380 (E. & A. 1924). Since the defendant, in legal effect, created the condition by his own act, the cases cited, such as Oelschlaeger v. Hahne & Co., 2 N. J. 490 (Sup. Ct. 1949), concerning notice, have no application.

The trial court did not err in submitting the case to the jury.

The remaining question presented is whether the verdict was against the weight of the evidence. There was a sharp conflict in the testimony. The verdict of the jury will not be set aside upon the ground that it is against the weight of the evidence unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion. Wadell v. Public Service Coordinated Transport, 3 N. J. Super. 132 (App. Div. 1949). We do not find such to be the case here.

The judgment under review is affirmed.


author: Jayne, J. A. D.

text:
    F. PAUL MARSCHALK, PLAINTIFF-APPELLANT, v. ANTHONY WEBER AND STELLA WEBER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950 —
    Decided December 20, 1950.

      Before Judges McGeehan, Jayne and Wm, J. Brennan, Jr.

      Mr. Charles C. Carroll argued the cause for appellant (Messrs. Carroll & Skeltini, attorneys).

      Mr. Hugh C. Spernow argued the cause for respondents (Messrs. Hunziker & Hunziker, attorneys).
   The opinion of the court was delivered by

Jayne, J. A. D.

The present appeal invites a consideration of a judgment of involuntary dismissal entered in this action in pursuance of the determination of the trial judge at the conclusion of the plaintiff’s case.

It is evident that on July 13, 1949, the defendants executed a memorandum in writing granting sole and exclusive authority, for a period of three days from that date, to the plaintiff, a duly licensed real estate broker, to procure a purchaser for them of two contiguous parcels of land consisting of approximately eight acres in the City of Clifton, with the two dwellings situate thereon, for the price of $57,500, or “for any other price or on any other terms to which the seller may consent in writing * *

The writing also contains the following notable and significant terms:

“The seller agrees to pay the agent a commission of 5 per cent of the gross sale price in case said property or any portion is sold or exchanged by the agent, the seller, or any other person during the term of this contract.”
‘‘The seller agrees to assist and cooperate in such sale.” “Commission or commissions shall be earned when the agreement of sale is executed by the buyer and seller, said commission shall not be payable until the deed is delivered and the purchase price is paid in full when the same shall be due and payable.
“The seller represents that he has the legal right to sell said property, and that he can and will execute a sufficient instrument of conveyance.”

It is elementary that in the consideration of a motion to nonsuit or its progeny, the motion to direct an involuntary dismissal of the action, all of the evidence which supports the alleged cause of action of the party against whom the motion is made must be accepted as true, and such party shall be accorded the evidential benefit of all the inferences that may logically and legitimately be deduced therefrom. Lipschitz v. New York & New Jersey Produce Corp., 111 N. J. L. 392 (E. & A. 1933); Scarano v. Lindale, 121 N. J. L. 549 (E. & A. 1939); Schwartz v. Rothman, 1 N. J. 206 (1948); Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc., 3 N. J. 149 (1949).

There was testimony from which the jury might have logically and legitimately inferred that on the evening of July 14, 1949, the plaintiff, through his salesman, submitted to the defendants a Iona fide offer from the Rusmont Corporation, a corporation of New Jersey, to purchase the property designated in the agency agreement for the specified price, provided the defendants would also convey to the purchaser another parcel of approximately one-half acre in the same vicinity for the purchase price of $1,500.

The defendants sought time to consider and on the following evening, July 15, 1949, they orally expressed their approval of the proposed terms of the offer. The following morning a check of the Rusmont Corporation in the sum of $1,000 was delivered to and received by the defendants.

Monday afternoon, July 18, 1949, at the offices of the attorney of the defendants, was designated by mutual consent as the time and place for the execution of the agreement of sale. At the appointed time the defendants’ attorney announced that the transaction would not be consummated and he returned the check. The defendants themselves explained to the broker, “We have changed our minds. Of course, we will take care of you. Do not worry about it. We have changed our minds about selling.”

It is immediately observed and indeed acknowledged that the written memorandum, in so far as it conferred exclusive authority upon the plaintiff to negotiate a sale of the particular real estate therein identified, was in conformity with the statute. R. S. 25 :l-9. The history of the statute is briefly told in Fontana v. Polish National Alliance, &c., 130 N. J. L. 503 (E. & A. 1943).

It is the settled rule that ordinarily a broker who is duly employed earns his commission when he procures for the owner a purchaser able and willing to comply with the terms specified in the authority thus conferred or with other or different terms which, however, are satisfactory to the owner. S. E. Crowley Co. v. Myers, 69 N. J. L. 245 (E. & A. 1903); Ganley v. Kalikman, 105 N. J. L. 311 (Sup. Ct. 1929); affirmed, 106 N. J. L. 237 (E. & A. 1930); Walsh v. Isgro, 121 N. J. L. 165 (E. & A. 1938); Houston v. Siebert, 129 N. J. L. 468, 472 (E. & A. 1943); Wegmann v. Melniczak, 133 N. J. L. 243 (Sup. Ct. 1945).

In response to a motion for the involuntary dismissal of the action, the learned trial judge stated:

“The question that I have decided here is that while there is a written contract authorizing the sale of two lots (the eight-acre tract) provided the broker acquires a purchaser for those lots, he did not provide a purchaser for those two lots. According to the undisputed evidence here in the case, the purchaser that he provided wanted to buy five lots.
“I have decided in this case that the plaintiff, having failed to provide a purchaser for the two lots as his w'ritten contract authorized him to do, he is not entitled to a commission.”

Obviously the plaintiff procured a prospective purchaser who submifted a counter-offer at variance with the terms of the authorization. Assuredly the sellers were at liberty to reject it without incurring any liability to the plaintiff, but the testimony disclosed that they announced their approval of and acquiescence in the counter-offer, and in furtherance of the bargain received and temporarily retained a nominal deposit from the proposed purchaser and participated in the selection of a time and place for the execution of a contract of sale.

The plaintiff frankly acknowledged in the prosecution of his action that he was not entitled by reason of the statute to any commission for the sale of the additional one-half acre for the separate and independent price of $1,500 because his authority to sell it was not recognized in any writing or memorandum expressive of the rate of commission and signed by the owners or their authorized agent.

The trial judge seems to have entertained the impression that a variation in the terms of the sale of the designated property from those specified in the memorandum of authority must also be in writing under the statute. Not so. It is sufficient if the authority to sell the property and the rate of commission on the dollar are in writing. Wegmann v. Melniczak, supra.

Chancellor Magie, delivering the opinion of the Court of Errors and Appeals in S. E. Crowley Co. v. Myers, supra, stated (at p. 248) : “The ground on which the motions to nonsuit and direct a verdict were rested was that the written agreement, properly construed, limited the liability of defendant to pay commissions, to a sale procured by the broker or real estate agent for cash only. The trial judge charged the jury that such was the true construction of the contract. He left it to the jury whether the provisions for a sale for cash had not been waived by the seller bjr his acceptance of a purchaser who paid in part in cash and in part by a conveyance to the seller of other real estate, accepted by the seller as equivalent, to make up $30,000 of the sale price of $70,000.

*******

“When the consideration is fixed by the owner in the authority given to the agent, at a certain price in dollars, the owner may reject a purchaser procured by the agent who offers to pay the price, not in dollars, but in other property. But if the owner, having the option to reject such an offer, accepts it and takes other property as equivalent for so much of the selling price fixed by his authority, I have no doubt that the agent becomes thereby entitled to his commissions.”

Moreover the defendants in their memorandum in the present ease empowered the plaintiff to induce a sale of the property “for $57,500 all cash, * * * or for any other price or on any other terms to which the seller may consent % i-i i's

It is therefore apparent that by the terms of the memorandum the plaintiff was authorized to solicit a purchaser who would agree to acquire the property on terms satisfactory to the owners. Cf. Ganley v. Kalikman, supra.

The words “any other terms” connote in an agreement of this nature “any other considerations” than those definitely specified.

Depending on the fertility of the imagination, one can envision the possibility of numerous counter-offers which are at variance with the so-called “listing price.” Por examples, the granting additionally by the seller of an easement for a driveway along his adjacent property, the privilege to use the seller’s nearby wharf, or the installation of some utility. The variation of the counter offer in view of the provisions of the present memorandum cannot by a reasonable construction be confined solely to variations in the monetary consideration.

And so we are unable to confer our approval of the abstract conclusion that a written authorization to sell a tract of eight acres, which memorandum is in all essential respects in conformity with the requirements of the statute, becomes legally ineffectual and unenforceable where the broker in the pursuit of that authority procures a counter-offer from a competent purchaser to acquire not only the eight-acre tract in accordance with the terms stated in the authorization, but also another tract of one-half acre at a separate price and the owner accepts the counter-offer. Compare, Haber v. Goldberg, 92 N. J. L. 367 (E. & A 1918).

It is important to observe that in the present case the plaintiff erected his alleged cause of action solely upon his written agreement with the defendants with respect to the sale of the tract of eight acres and not upon the oral agreement between the defendants and the prospective purchaser which embraced a sale of an additional one-half acre at a price distinct from that of the eight-acre tract designated in the written memorandum. But where, as here, the offer to purchase the eight acres was made contingent upon the further acquisition by the purchaser of the one-half acre, the service of the plaintiff pursuant to his written authorization was not performed until and unless the defendants acquiesced in the bargain.

We, however, decline to concur in the determination that as between the owner and the broker, inter sese, the variation in the form and substance of the consideration, in this case, must under the statute be evidenced in writing.

Suppose that these defendants had consummated the sale on the terms proposed by the counter-offer and had by means of the exertions of the plaintiff received the $57,500 cash for the eight-acre tract as contemplated by the memorandum of the plaintiff’s authorization and in addition $1,500 for the one-half acre, could the defendants in such circumstances utilize the statute of frauds as an asylum of escape from the fundamental principles of justice and turn their backs upon the broker ? We think not. The brokerage agreement in its essential elements remained unchanged. It was not rescinded or otherwise nullified. Moreover the agreement itself manifests the contemplation of a vicarious variation of the terms of sale.

But we must in the present case go beyond those observations and consult the express terms and provisions of the memorandum of July 13, 1949. A broker may by special agreement with his principal contractually make his right to compensation dependent on a stated condition or on a specified occurrence, or on a contingency beyond the control of his efforts and perhaps one likely to be governed or influenced by the acts of his principal. Hinds v. Henry, 36 N. J. L. 328 (Sup. Ct. 1873); Leschziner v. Bauman, 83 N. J. L. 743 (E. & A. 1912); Duffy & Thomas, Inc., v. Miller, 5 N. J. Misc. 77 (Sup. Ct. 1927).

The principle enunciated in Hinds v. Henry, supra, however, has never been permitted to enable a vendor unjustly to escape liability to the broker by means of the vendor’s own malfeasance or purely capricious refusal to perform his agreement. Actus legis nemini facit injuriam. Rauchwanger v. Katzin, 82 N. J. L. 339 (Sup. Ct. 1912); Lehrhoff v. Schwartsky, 2 N. J. Misc. 353 (Sup. Ct. 1924); Keifhaber v. Yannelli, 9 N. J. Super. 139 (App. Div. 1950); cf. Dermody v. New Jersey Realties, 101 N. J. L. 334 (E. & A. 1925), in which the vendor made use of the contract of sale.

In our analytical examination of the record of the case sub judice, our attention converges predominantly upon one of the provisions of the memorandum. Noticeably, the authorization of the plaintiff was to obtain a purchaser of the designated property at the price of $57,500 cash or "on any other terms to which the seller may consent in writingIt is this contractual provision that concerns us, not the requirements of the statute.

The consent of the defendants in writing to a sale "on any other terms” was a contractual component of the authorization by which the plaintiff was bound and upon which the defendants undoubtedly could have relied.

But in recognition of the state of the existing proof, it was within the province of the jury to infer that the defendants accepted the counter-offer and did not throughout the course of the transaction choose to avail themselves of the provision relating to their consent in writing.

Implicit in the explanation of the defendants of their refusal to consummate the sale is confirmation that they originally acquiesced in the bargain and then: “We have changed our minds. * * * We have just changed our minds about selling.”

A survey of the pleadings and of the pretrial order reveals that the pivotal controversial issue of fact in this action implicated, vel non, the consent of the defendants to accept the terms of the counter offer.

In our modern methods of review we are permitted to subordinate the formularies of artistic pleadings to the consideration of the evidence in its relation to the substantial rights of the parties. Patently, the question of the consent of - the defendants is caused by the evidence to envelop the issue of waiver and perhaps of estoppel.

The course of conduct pursued by the defendants in the accompanying and surrounding circumstances may not be entirely ignored. Primarily it must be realized that the plaintiff’s authorization was limited to a period of three days from July 13, 1949. On the evening of July 15, 1949, the defendants orally announced to the representative of the plaintiff their acceptance of the counter-offer. On the following morning the plaintiff procured and delivered to the defendants the deposit of the proposed purchaser in the form of a check bearing the following endorsement: “Deposit for property— c/a as Block 350 — lot No. 10 & No. 25 and Block 266 lots 10ÁA, 11AA & 21. As shown in plot map — City of Clifton, N. J. Price $59,000.” The defendants accepted the.check and retained it. The defendants thereupon assured the representative of the plaintiff that they would arrange an appointment with their attorney for the preparation and execution of the contract of sale. It may be inferred that they did so. Such was the situation created and maintained by the defendants until the period of the plaintiff’s authority expired.

Indeed, the defendants do hot in their brief submitted in this appeal invoke the provision concerning their consent in writing.

Independent of a requirement of the statute of frauds, a provision declaring that the acceptance “of other terms” shall be in writing is not in all circumstances conclusively operative. Its initial effectiveness may be subsequently waived and the intention to do so may be disclosed by the conduct of the parties.

While the judgment of dismissal resulted from a misapplication in our opinion of the statute of frauds, yet we have nevertheless examined the case comprehensively and resolve that the issues of the defendants’ consent to the acceptance of the counter-offer and of a waiver, if any, by the defendants of the provision requiring such consent to be in writing, were such as to have required the trial judge to deny the motion to dismiss and to call upon the defendants to proceed with their defense. Cf. Barres v. Notte, 7 N. J. Misc. 941 (Sup. Ct. 1929).

The judgment is therefore reversed and the record returned to the Law Division for a trial de novo.


author: Eastwood, J. A. D.

text:
    JANET B. MANDELBAUM BY MORRIS MANDELBAUM, HER GUARDIAN AD LITEM, PLAINTIFFS-RESPONDENTS, v. SEYMOUR WEISS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 27, 1950 —
    Decided December 20, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Victor H. Miles argued the cause for the plaintiffs-respondents.

      Mr. Milton Miller argued the cause for the defendant-appellant (Mr. Julius Cohn, on the brief).
   The opinion of the court was delivered by

Eastwood, J. A. D.

This is an appeal from a judgment of the Ocean County District Court entered in favor of the plaintiff and against the defendant in the sum of $357.40, and costs in a replevin action for the recovery of certain chattels alleged to have been the subject of conversion by the defendant.

Janet Mandelbaum and Seymour Weiss were engaged to be married and three parties were held in their honor in January, 1949. The articles that are the subject of this suit were received by the engaged couple at these engagement parties, with cards accompanying the gifts bearing an inscription indicating that the gifts were intended for “Janet and Seymour.”

The parties agree that the gifts were reposed in the custody of the prospective groom for safekeeping until their marriage took place. Several months thereafter the aura of betrothal bliss which had enveloped the parties had lifted and their engagement was broken. The evidence as to the exact date of the disengagement is somewhat inconclusive. However, it is apparent that the parting was by mutual consent and the prospective bride returned the engagement ring to her previously intended husband.

Mr. Weiss apparently did not reciprocate the plaintiffs gracious voluntary act of returning the ring by a similar gallant gesture of compliance with plaintiffs request for the possession of the gifts. Consequently, she instituted an action in replevin and seeking damages for their unlawful detention. Evidently, the parties were not inclined to consider their proposed marriage as a sacred status, but rather as a business or commercial transaction. The trial court determined that social custom, whenever practical, requires the delivery of engagement gifts to the intended bride and having found that the defendant had converted the gifts to his own use, directed the entry of the aforementioned judgment.

The defendant contends that the gifts in question are owned by the parties as tenants in common; that the plaintiff has failed to sustain the burden of proving a paramount right to possession and, therefore, an action of replevin will not lie.

The plaintiff contends that social custom in America recognizes a paramount right in the intended bride to the possession of engagement gifts. She alleges that engagement gifts are given upon a condition subsequent (the marriage of the engaged couple), and upon the breach of engagement the parties are divested of joint title in the gifts and title is transferred solely to the party whose future happiness originally induced the gift. It is on this theory that plaintiff contends the gifts, allegedly given by her relatives, should be returned to her.

It is true that much of our law finds its origin in custom. However, this court is aware of no social custom which compels the award of engagement gifts to the disappointed bride. Consequently, judicial notice cannot be accorded thereto.

As a general proposition, a tenancy in common exists whenever an estate in real or personal property is owned concurrently by two or more persons under a conveyance or circumstances which do not expressly or impliedly call for some other form of co-tenancy. The nature of the relationship of a tenancy in common is such that possession is per my and not per tout and each tenant owns his portion of the whole. In the instant case the engagement gifts were admittedly given to “Janet and Seymour” without any apparent reservation. Under such circumstances, we feel constrained to hold that a tenancy in common in the subject matter of the gifts was created. Kantor v. Kantor, 133 N. J. Eq. 491 (Ch. 1943); 62 C. J., Tenancy in Common, § 1, p. 408. To succeed in her replevin action, the burden was upon plaintiff to establish that she had an absolute ownership and right to the possession of the chattels. This she failed to do. Accordingly, the relief sought by plaintiff cannot be accomplished by an action in replevin. The judgment must be, therefore, reversed. This rule was established in the case of Hunt v. Chambers, 21 N. J. L. 620, 623 (E. & A. 1845), wherein the court stated:

“To maintain replevin, the plaintiff must have the right of exclusive possession to the goods in question. He must not only have property absolute or qualified, and the right of possession at the time of the commencement of the action, but he must have the exclusive right of possession. Hence, as clearly appears from the books, one joint-tenant or tenant in common cannot alone maintain replevin even against a stranger, much less can he maintain such action against a co-tenant. Shaw, C. J., Barnes v. Bartlett, 15 Pick. [71] 75; Wills. v. Noyes, 12 Ib. 326; McEldery [McElderry] v. Flannegan, 1 Harr. & Gill. 308.”

The rule was modified in Kleinfeld v. The General Auto Sales Co., 118 N. J. L. 67, 69 (E. & A. 1937), wherein Mr. Justice Perskie, speaking for the court, stated:

“We concur in so much of the quoted principle which holds that one of two joint owners or tenants in common cannot alone maintain replevin against the other. The reason is clear and persuasive; ‘the one has no more right to the exclusive use or possession of the chattels so held than the other.’ Chambers v. Hunt, supra (22 N. J. L. 552, at p. 556). But we decline to hold that the same principle of law applied ‘even against a stranger.’ The holding in Hunt v. Chambers, supra, does not support it; reason and justice do not justify it.”

The trial judge found that the plaintiff was the sole owner of the gifts and, therefore, under the authority of Sloin v. Lavine, 11 N. J. Misc. 899, 168 A. 849 (Sup. Ct. 1933), her action in replevin was the proper procedure. In view of our finding that the parties are co-tenants, a perusal of the Sloin case indicates that it is not applicable. The engagement between Mr. Sloin and Miss Lavine having been terminated, Sloin instituted a replevin suit for the return of the engagement ring and other gifts he had made to her. The action was instituted and decided on the theory of absolute ownership of the chattels and the question of title as co-tenants does not appear to have been raised or decided. The Kleinfeld case, supra, is dispositive of the issue presently before us.

The judgment of the Ocean County District Court is reversed, with costs.


author: Rogers, J, A, D.

text:
    JOSEPHINE MAGLO, PLAINTIFF-RESPONDENT, v. HOWARD S. WEAVER, DEFENDANT, AND THOMAS B. AKIN, Jr., TRADING AS COLONIAL CHEMICAL COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided December 20, 1950.

      Before Judges Freund, Proctor and Rogers.

      Mr. Paul T. Huckin argued the cause for the appellant (Messrs. Huckin & Huckin, attorneys).

      Mr. Robert Kronman argued the cause for the respondent.
   The opinion of the court was delivered by

Rogers, J, A, D.

Trial of this action, founded upon contract, resulted in a judgment being entered in the Superior Court, Law Division, against defendants, Howard S. Weaver and Thomas B. Akin, trading as Colonial Chemical Company. Shortly thereafter appellant Akin moved for relief from the judgment upon the ground that the court lacked personal jurisdiction over him for the reasons that (1) due service of process was not made upon him within this State and (2) the attorneys who appeared and pleaded for him in the suit, acted without his authority. The appeal is from the denial of that motion.

Process was served upon defendant Weaver, who appeared and participated in the trial; and who ■ also authorized his attorneys to appear for the partnership. The sheriff's return certifies service of the summons and complaint upon defendant-appellant by leaving a copy with a member of his household at his usual place of abode “182 East Linden Avenue, Englewood, F. J."

Yalid substituted or constructive service of process under R. S. 2:27-59 may he made only by strict and full compliance with the statutory directions. McArdle Real Estate Co. v. McGowan, 109 N. J. L. 595 (Sup. Ct. 1932); Ruhle v. Caffrey, 113 N. J. L. 240 (Sup. Ct. 1934); Kurilla v. Roth, 132 N. J. L. 213 (Sup. Ct. 1944).

The evidence clearly shows that appellant never resided at the Englewood address, where service of process was certified to have been made on April 21. 1948, until the following May 8th or 9th. Accordingly, appellant's usual place of abode within the purview of the statute was not 182 East Linden Avenue in Englewood, when substituted service of process was made, because he hád not yet taken up actual residence or living there. Kurilla v. Roth, supra.

Kespondent urges that the proof does not clearly countervail the testimony of the special deputy sheriff who certified to the service. The officer states he was informed on April 21, 1948, upon inquiry at the Linden Avenue address, that appellant resided there and that the person he served was a member of the household. Assuming that the deputy sheriff was so informed and that the service was then justifiably made, nevertheless the validity of the service depended upon appellant then actually residing at the address. It would serve no substantial purpose to detail the evidence upon this issue because it unequivocally shows the address was not appellant’s usual place of abode when service was made. Service of process upon appellant was invalid.

A further question presented is whether the appearance entered in the action for appellant by counsel retained by defendant Weaver, afforded personal jurisdiction over appellant. The evidence implies that the defendants were partners trading as Colonial Chemical Company. Appellant claims he was a special partner and that the relationship was dissolved in October, 1946.

The general rule is that though a partner has implied authority to defend an action against the partnership such does not extend to entering an appearance for a co-partner not served with process so as to render him liable to judgment personally. Phelps v. Brewer, 9 Cush. 390 (Mass. 1852) ; 47 C. J. 975; 40 Am. Jur. 434. This rule was followed in this State where a partnership was in dissolution. Davis v. Megroz, 55 N. J. L. 427 (Sup. Ct. 1893). We perceive the law in the Davis case, supra, applies with equal force to the instant suit regardless of the status of the partnership. A partner’s implied authority for binding a co-partner in this respect does not exist because fundamentally it involves the question of due process. The fact that the partnership may be in active operation or may be in the course of dissolution can have no bearing upon whether a partner has such implied power to bind a co-partner.

Counsel of record for defendants in this action states that he was engaged to defend the action solely by defendant Weaver, and that he was instructed by him to file an answer for and to represent Colonial Chemical Company. The attorney states he had never met appellant nor received any communication from him. Appellant denies that he ever authorized counsel to appear in the action for him in anywise. There is no controverting evidence. Nevertheless, respondent urges that appellant ratified and accepted his co-defendant’s employment of counsel. This contention is based upon appellant’s averments that he first learned of the suit on January 31, 1950, when he noticed a paper entitled in the cause in defendant Weaver’s office, at which time Weaver said he was taking care of the matter; and that next Weaver told him on March 22, 1950, that he had lost a case but that even then appellant didn’t know what case was referred to nor that judgment in the case went against him also. Eespondent also argues that these facts estop appellant from attacking the force of the judgment against him.

We think it clear that the facts show appellant did not ratify employment of counsel in his behalf in this suit and we think that under the circumstances within appellant’s knowledge he was not required to take any step in regard to the suit. As to appellant the proceeding was a nullity. He could not be estopped in respect of a matter with which he was in nowise connected.

The order denying appellant’s motion for relief from the judgment in this cause is reversed, and the mattér is remanded with direction to set aside service upon appellant, to expunge counsel’s appearance for appellant together with the answer and counterclaim filed in his behalf, and to vacate the judgment as to appellant.


author: Per Curiam.

text:
    HARRY KRASSAN, PLAINTIFF-RESPONDENT, v. EDWIN SWEETEN, DEFENDANT-APPELLANT, AND AMY SWEETEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided December 20, 1950.
    Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. John Henry Reiners, Jr., argued the cause for the appellant.

      Mr. Guy Lee, Jr., argued the cause for the plaintiff-respondent.

      Mr. Lynwood Lord filed a brief for the defendant-respondent.
   The opinion of the court was delivered

The plaintiff recovered a judgment in the Gloucester County District Court against the present appellant, Edwin Sweeten, for groceries sold and delivered to the latter’s wife.

Unlike the companion case of Smedley v. Sweeten, 11 N. J. Super. 39 (App. Div. 1950), we perceive here no occasion to consider the implied agency of a wife to pledge her husband’s credit in the purchase of necessaries.

The statement of the evidence submitted in pursuance of Bules 1:2-23 and 4:2-6 discloses that the plaintiff testified “that Mr. Sweeten had authorized him to deliver the groceries enumerated in the book account to Mrs. Sweeten and, that he would be responsible for the debt,” and that the plaintiff “denied that Mr. Sweeten had at any time directed him to discontinue the account.” We find no contradiction of that testimony in the record before us. Moreover we are informed in the statement of the evidence of an affidavit made by Mr. Sweeten in a matrimonial cause in which he deposed: “In addition to providing my wife with a home, she also has the privilege of going to Krassan’s store in Woodbury, where she may purchase unlimited amount of meats, vegetables and groceries for her demands and the bills for the purchase of the said commodities are paid by me.”

Wanamaker v. Ulizio, 102 N. J. L. 166 (E. & A. 1925), records a case in which the wife opened an account in her husband’s name, with his knowledge and consent.

In the present case the judgment eventuated from proof of the breach of an express contract.

The judgment is affirmed.


text:
    LAURIE SMEDLEY, PLAINTIFF-RESPONDENT, v. EDWIN SWEETEN, DEFENDANT-APPELLANT, AND AMY SWEETEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided December 20, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. John Henry Reiners, Jr., argued the cause for the appellant.

      Mr. Guy Lee, Jr., argued the cause for the plaintiff-respondent.

      Mr. Lynwood Lord filed a brief for the defendant-respondent.
   The opinion of the court was delivered by

Jayne, J. A. D.

The plaintiff, a merchant, prosecuted this action against the defendants, Edwin Sweeten and Amy Sweeten, husband and wife, to recover from them or one of them the reasonable value of certain alleged necessaries supplied by the plaintiff to Mrs. Sweeten. A judgment was rendered by the Gloucester County District Court Judge imposing the sole liability for the payment of the account upon the husband, Edwin Sweeten. The legal propriety of the judgment constitutes the subject matter of the present appeal.

There is no intimation in the certified statement of the evidence here submitted (Rules 1:2-23 and 4:2-6) that the husband personally purchased the articles or expressly authorized their sale to his wife on his credit.

It may be stated to be the broad general rule that the relation of principal and agent is not inherent in the marital relation. While marriage may be a relevant circumstance, it is the general principle that the wife is the agent of her husband only by virtue of his authority expressly conferred or reasonably to be implied from the circumstances. There are in the law instances of apparent or ostensible authority which more commonly have the characteristic features of estoppel and the somewhat unique exemplifications of an agency or kindred relationship rather artificially created by implication of law. Barber v. Hochstrasser, 136 N. J. L. 76 (Sup. Ct. 1947).

The civil and common law levied an obligation upon every husband to support his wife. Public policy and the general welfare required the imposition of that responsibility. Coincidental in the recognition and enforcement of that duty, the law originated that which Anson in his work on Contracts and Schouler in his treatise on Husband and Wife have regarded as an “agency from necessity.”

“Circumstances operating upon the conduct of the parties may create in certain cases agency from necessity. * * * A husband is bound to maintain his wife; if therefore he wrongfully leave her without means of subsistence she becomes ‘an agent of necessity to supply her wants upon his credit’ * * *. In all these eases the legal relations between principal and agent do not arise from agreement; they are imposed by law on the parties without their consent in order to promote general welfare.” Anson, Principles of the Law of Contracts (1919), § 444.

And so, where husband and wife are living together the law generates the presumption in favor of implied authority in the wife “to pledge her husband’s credit, for such articles as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the style in which the husband chooses to live.” Vusler v. Cox, 53 N. J. L. 516 (Sup. Ct. 1891); Wilson v. Herbert, 41 N. J. L. 454 (Sup. Ct. 1879).

Where the husband and wife are not cohabiting, the presumption of such implied authority does not exist and the creditor in order to establish the liability of the husband for the purchases of necessaries by the wife must affirmatively prove that the parties were then living in a state of separation by mutual consent, without any provision for the maintenance of the wife or means of her own for her support, or that the wife separated from her husband under the stress of his misconduct of such a character as in law is regarded as a justifiable cause. Vusler v. Cox, supra; Kelner v. Lee, 1 N. J. Super. 193 (App. Div. 1949); St. Mary’s Hospital v. Paxton, 10 N. J. Misc. 514 (Sup. Ct. 1932). In the one or the other set of such circumstances the law restores the presumption of the implied agency. Strawbridge & Clothier v. Sigle, 73 N. J. L. 419 (Sup. Ct. 1906).

An appreciation of how closely the wife’s implied authority is attached to the duty of the husband to support her is exemplified by the observations of Chief Justice Gummere imparted in the decision rendered in McCreery & Co. v. Martin, 84 N. J. L. 626 (E. & A. 1913) : “This duty which the law imposes upon the husband, and which he must discharge to the extent of his ability, is satisfied by a single performance. In other words, having once performed it, the law does not impose upon him the obligation of duplicating that performance. When he has supplied his wife with those necessaries which their station in life and his financial standing entitle her to have at his hands, or has furnished her with moneys sufficient to enable her to purchase them for herself, he is under no obligation to pay bills incurred by her for what would have been necessaries if he had not already supplied her therewith, but which are not, in fact, such, because of the precedent supply. The husband may permit such extravagance on the part of the wife if he sees fit; but having discharged the obligation which the law imposes upon him with relation to his wife’s necessaries, he is entitled to regulate her expenditures, for which he is to become responsible, by his own discretion and judgment.”

Perhaps in this discussion of the presumption of implied authority it ought to be noted that the presumption is not conclusive and it may be overcome by refutatory evidence. Saks & Co. v. Barrett, 109 N. J. L. 42 (E. & A. 1932); Gimbel Bros., Inc., v. Barrett, 109 N. J. L. 63 (E. & A 1932).

With this general background of the existing state of the law, we proceed to examine the statement of the evidence in the present case. We notice that neither defendant testified at the trial. The alleged cause of action was sought to be sustained solely by the testimony of the plaintiff, which is exhibited to us as follows:

“She testified that the items purchased which were the basis of the book account, were charged to Mr. Sweeten at the direction of Mrs. Sweeten; that Mr. Sweeten never authorized the opening of the account; that the charges were made against the account at the express direction of Mrs. Sweeten; that Mr. Sweeten made none of the purchases; that all of the items purchased were delivered to Mrs. Sweeten and were purchased by her; that some of the items purchased were for the use of Mr. Sweeten’s infant daughter, Shirley, but that she could not separate any of those items so that she did not know which items were for Mrs. Sweeten’s use or for the use of Shirley Sweeten, the daughter.”

It is at once noticeable that Mr. Sweeten “never authorized the opening of the account” and that all of the articles were pxtrchased by Mrs. Sweeten and delivered to her. In such circumstances it became incumbent upon the plaintiff to introduce evidence of facts from which the implication of an implied agency would legally arise.

There was no evidence from which it could be logically inferred that the husband, by any. conduct on his part, had induced the plaintiff to believe that the wife had such authority. The plaintiff seems merely to have assumed that the wife possessed the power to pledge her husband’s credit.

The ensuing quotation from the opinion of the Court of Errors and Appeals in McCreery & Co. v. Marlin, supra, is interesting and apt: “But there seems no ground for such assumption on the part of the tradesman who deals with the wife for the first time. He is supposed to know that the wife’s power to pledge her husband’s credit is not without limit; that she can only do so for the purpose of obtaining those necessaries which the law requires him to furnish her, and to the extent that they remain unfurnished; and he can readily ascertain by inquiry the fact of the wife’s authority to pledge her husband’s credit for the purchases which she desires to make. The suggestion that such action on the part of the tradesman might readily be considered offensive, not only by the wife who seeks to make the purchases, but by the husband whose credit she seeks to pledge, is fully answered b}r what was said by Lord Justice Bramwell, in Debenham v. Mellon, 5 Q. B. D. 394, 400 viz.: ‘If it be said that such a proceeding would offend the customer, I answer that that may be an excellent reason why the tradesman should not ask the question; but it is no reason for seeking to make the husband pay because the question is not asked.’ ”

Our attention, however, fastens upon a fundamental deficiency in the plaintiff’s proof. As we have explained, proof of the marital status is prima facie evidence of the husband’s obligation to support his wife, but the status of marriage does not of itself give rise to the presumption of the implied agency wiih which we are here concerned.

The husband’s liability to a third party for necessaries furnished to his wife may arise in two distinct classes of cases: where the wife lives with him or where she lives separate from him. In the class first mentioned, it is the cohabitation that supplies the rather broad presumption of the assent of the husband; in the second class, the presumption arises from the special circumstances to which we have previously referred. The fatal insufficiency of the plaintiff’s case is the absence of proof of either basis.

In the present case the liability of the husband, the appellant, was sought to be erected solely upon proof of the existence of the marital relationship between the defendants.

The denial of the motion of the defendant for a dismissal of the plaintiff’s action was manifestly erroneous and the judgment under review is accordingly reversed and the action remanded to the District Court for a trial de novo.