author: Jayne, J. A. D.

text:
    MARTA MIRINDA, EXECUTRIX UNDER THE LAST WILL AND TESTAMENT OF ELINORE F. SPINNER, DECEASED, PLAINTIFF-RESPONDENT, v. FLORENCE BLAKE KING, DEFENDANT-APPELLANT, AND THE ATTORNEY GENERAL, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 3, 1951.

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

      Mr. Robert B. Meyner argued the cause for the defendant-appellant.

      Mr. Sylvester C. Smith, Jr., argued the cause for the plaintiff-respondent.

      Mr. John W. Griggs, Deputy Attorney General, argued the cause for the State.
   The opinion of the court was delivered by

Jayne, J. A. D.

The plaintiff, experiencing some significant incertitude concerning the proper performance of her fiduciary duty as executrix of the last will and testament of one Elinore E. Spinner, deceased, prosecuted this action in the Chancery Division of this court to obtain a judicial construction of certain provisions of the will together with conformable instructions.

The testamentary paragraphs of present pertinency read as follows:

“Fifth: I hereby give, devise and bequeath my real estate located at the Corner of Chambers and Bullman Streets, Phillipsburg, New Jersey, to Maria Mirinda for and during her natural life and after her death I direct the same shall become absolutely the property of Delaware Chapter No. 50, Order of the Eastern Star of the Town of Phillipsburg, State of New Jersey, as a place for the aged and blind, such home to be maintained by the said Eastern Star as a memorial to Henry Tillman Spinner and Jane Frome Spinner. This devise is to be free and clear of any encumbrance or lien of any kind which may be against the property at the time of my death and also to be free of any inheritance tax. I direct my executrix hereinafter named to pay out of my estate such amount as will entirely free the said property from any such encumbrance, lien or tax.
* s{i
“Fifteenth: All the rest, residue and remainder of my estate I give, devise and bequeath to Delaware Chapter No. 50, Order of the Eastern Star of the Town of Phillipsburg, State of New Jersey, to hold this fund intact so that the principal of the same, together with accumulated income, shall be available and used for the maintenance of the Henry Tillman Spinner and Jane Frome Spinner memorial, after the death of Maria Mirinda.”

The questions submitted to the court for determination are succinctly stated in the pretrial order. They are:

“(a) Whether the charitable trust set up under paragraphs Fifth and Fifteenth of the will of Elinore F. Spinner, deceased, fails and whether some other institution under the cy pres doctrine would be entitled to take over the property of the trust, or whether Florence Blake King, the only heir at law and next of kin entitled to the personalty under the laws of distribution or entitled to property under the statute of descent, if the will fails, shall take.
“(b) Whether Florence Blake King, before her marriage known as Florence Blake, is entitled to an accounting as against plaintiff, Maria Mirinda, executrix under the last will and testament of Elinore F. Spinner, deceased.”

It was resolved by the judge of the Chancery Division that the devise of the real estate to Delaware Chapter No. 50, Order of the Eastern Star, as a place for the aged and blind, and the residuary bequest for its maintenance created a valid subsisting charitable trust.

It had been stipulated that the Delaware Chapter No. 50, Order of Eastern Star, had declined to accept the trust and that the Warren Hospital had upon request refused to qualify as a substituted trustee. In consequence, the Chancery Division judge furthermore determined that “a trustee will be appointed to administer the trust with direction to dispose of the property. The distribution of the proceeds of the sale of said property and the fund constituting the residue of the estate will await submission to the Court of the names of qualified institutions whose object is the care of the aged and the blind.”

It has been said, “Charity is never lost; it may meet with ingratitude, or be of no service to those upon whom it was bestowed, yet it ever does a work of beauty and grace upon the heart of the giver.”

Obviously the present appeal is primarily critical of the determination that the testatrix intended to create a charitable trust, that in the circumstances the trust did not fail and that it is a valid subsisting charitable trust. The application of the cy pres doctrine and the contemplated exercise of the power which it confers are at present of secondary consideration.

The story of charitable trusts in the law, decisional and legislative, is lengthy and interesting. 3 Scott on Trusts, c. 11, § 348 et seq.; 2 Bogert, Trusts and Trustees, c. 17, § 321 et seq.; Lewin on Trusts (14th ed.), c. IX, p. 470; State ex rel. Linde v. Packard, 35 N. D. 298, 160 N. W. 150, L. R. A. 1917 B, 710. Research has eventually supplied reason to believe that charitable uses were recognized by the English law before the Norman Conquest, and that the Court of Chancery had sustained such trusts long before the enactment of the Statute of Charitable Uses by Parliament in 1601. 43 Eliz., c. 4. Vide, Vidal v. Girard’s Executors, 2 Howard 127, 11 L. Ed. 205 (U. S. 1844). The preamble, however, of that enactment, enumerating some 21 charitable objects, has undoubtedly been influential both in England and in the United States in determining whether a stated purpose is to be regarded in law as charitable.

Chancellor Zabriskie in Norris v. Thomsons Executors, 19 N. J. Eq. 307 (Ch. 1868), commented (at p. 311) : “On the equity of this statute and the rights established by it, that court took jurisdiction of all charities or subjects included within it. Many of them, as the maintaining of bridges, causeways, and houses of correction, were neither charitable nor religious objects, in the usual sense of these terms. Yet, in proceedings by bill and information instituted in that court, and not in any way under the provisions of the act, the Court of Chancery has always defined charitable and religious objects according to the enumeration in the preamble of that act; not limiting the objects by the terms of the act literally, but limiting them to matter of like nature.”

On appeal, the Court of Errors and Appeals, 20 N. J. Eq. 489 (1869), concluded that the common law, as interpreted in the decisions relating to the statute of 43 Elizabeth, c. 4, prevailed in this State with respect to the question of what constitutes the legal definition of a charitable trust. That statute, long obsolete, was repealed by the Mortmain and Charitable Uses Act of 1888, which nevertheless embodied the same list of objects deemed to be charitable, among which is the “relief of impotent, aged and poor people.”

And so it suffices initially in the present case to realize that the bestowal of aid upon the aged and the blind has been classified for at least 350 years as a charitable purpose. Indeed, the relief of the poor, the aged, and the disabled has been and is a prolific field of charity.

Perhaps it should incidentally be acknowledged that in view of the flow of subsequent decisions, the list of charitable objects contained in the ancient statute is not now to be regarded as exhaustive. The class embracing trusts for purposes beneficial to the community, to society, or lessening the burdens of government has especially increased with the progressive developments of our civilization. Vide, MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652 (E. & A. 1905), for a modern definition of charity in its legal sense, and Noice v. Schnells 101 N. J. Eq. 252 (E. & A. 1927), anent a gift for the development of the Palisades along the Hudson River.

The following procession of citations supplies references to cases which expose to view the expansive range within which charitable bequests have been sustained. Goodell v. Union Asso., &c., of Burlington County, 29 N. J. Eq. 32 (Ch. 1878); Trustees v. Wilkinson, 36 N. J. Eq. 141 (Ch. 1882); affirmed, 38 N. J. Eq. 514 (E. & A. 1884); George v. Braddock, 45 N. J. Eq. 757 (E. & A. 1889); Jones v. Watford, 62 N. J. Eq. 339 (Ch. 1901); modified, 64 N. J. Eq. 785 (E. & A. 1902); Hilliard v. Parker, 76 N. J. Eq. 447 (Ch. 1909); White v. City of Newark, 89 N. J. Eq. 5 (Ch. 1918); N. J. Title Guar. and Trust Co. v. Smith, 90 N. J. Eq. 386 (Ch. 1919); King v. Rockwell, 93 N. J. Eq. 46 (Ch. 1921); Bloomer v. Bloomer, 98 N. J. Eq. 576 (Ch. 1925); affirmed, 100 N. J. Eq. 361 (E. & A. 1926); Sheen v. Sheen, 126 N. J. Eq. 132 (Ch. 1939); Guaranty Trust Co. v. N. Y. Community Trust, 141 N. J. Eq. 238 (Ch. 1948); affirmed, 142 N. J. Eq. 726 (E. & A. 1948); Wendel v. Hazel Wood Cemetery, 3 N. J. Super. 457 (Ch. Div. 1949); affirmed, 7 N. J. Super. 117 (App. Div. 1950); Annotation, 115 A. L. R. 1132.

Charities are not now restricted to those permitted by the law of England in the Elizabethan era. Bianchi v. South Park Presbyterian Church, 123 N. J. L. 325 (E. & A. 1939). In defining charities the courts should be at liberty to judge in recognition of the standards of the time. Porter v. Baynard, 158 Fla. 294, 28 So. 2d 890, 170 A. L. R. 747. New explorations in science, new fields and opportunities for the promotion of human advantage, different economic and social needs of communities, states, and nations constantly enlarge the scope of charity. 10 Am. Jur. 622, "Charities ” § 52.

Indeed, Justice Swayne in Ould v. Washington Hospital, 95 U. S. 303, 24 L. Ed. 450 (1877), remarked: “A charitable use where neither law or public policy forbids may be applied to almost anything that tends to promote the well-doing and well-being of social man.”

The earliest case of a charitable gift appearing in our New Jersey Equity Reports seems to be Baldwin Ex’rs v. Baldwin, 7 N. J. Eq. 211 (Ch. 1848), in which the Chancellor upheld a devise in trust of three lots as the site of a building for a free school for the benefit of all poor children living between Perry Street and the river in Newark. In N. Y. Annual Conference M. M. A. S. v. Ex’rs Clarkson, 8 N. J. Eq. 541 (Ch. 1851), there was a testamentary bequest “for the support of old worn out preachers.”

We therefore do not meet with any hesitation in declaring in the abstract that a donation for the relief of the aged and the blind normally evinces a charitable intent and purpose within the import of the law. 2 Perry, Trusts (5th ed.) 314.

The real pressure of the argument on behalf of the appellant is applied in support of the contention that the gift is ineffectual and the trust inoperative in that (a) the will does not exhibit any genuine intent or purpose of the testatrix to accomplish an object of charity, and (b) the trust has failed by reason of the impracticability of its fulfillment.

In approaching the consideration of those features of the ease we must give a nod of recognition to the fixed policy of the law to uphold charitable bequests and trusts as valid whenever possible (Hesketh v. Murphy, 36 N. J. Eq. 304 (E. & A. 1882) ; Noice v. Schnell, supra; First Camden, &c., Trust Co. v. Collins, 110 N. J. Eq. 623, 632 (Ch. 1932); reversed on another point, 114 N. J. Eq. 59 (E. & A. 1933) ; Cinnaminson, &c., Ass’n. v. Fidelity-Phila., &c., Co., 141 N. J. Eq. 127 (Ch. 1948); Y.W.C.A. v. Murrelle, 141 N. J. Eq. 229 (Ch. 1948); Morristown Trust Co. v. Protestant Episcopal Church, 1 N. J. Super. 418 (Ch. Div. 1948) ; 10 Am. Jur., Charities, p. 593), and to the established presumption against partial intestacy. Danker v. Cooper, 114 N. J. Eq. 283 (Ch. 1933); Bankers Trust Co. of N. Y. v. Greims, 115 N. J. Eq. 102, 114 (Ch. 1934); affirmed, 117 N. J. Eq. 397 (E. & A. 1935); Guaranty Trust Co. v. Catholic, &c., N. Y., 141 N. J. Eq. 170 (Ch. 1948).

It is proposed that the testatrix was manifestly moiivated in her creation of the trust by a sentimentality of family pride and that her predominant purpose was to provide a memorial to Henry and Jane Spinner. Assuredly, altruism is a characteristic of charity, but in the conception of the law it is the purpose to which the subject matter of the gift is to he devoted and not the motives of the testator that determines whether the trust is charitable. Woodstown National Bank v. Snelbaker, 136 N. J. Eq. 62 (Ch. 1944); affirmed, 137 N. J. Eq. 256 (E. & A. 1945); In re Butler, 137 N. J. Eq. 48 (Prerog. 1945); affirmed, 137 N. J. Eq. 457 (E. & A. 1946); Wilber v. Asbury Park Nat'l. Bank, &c., Co., 142 N. J. Eq. 99 (Ch. 1948) ; affirmed, 2 N. J. 167 (1949).

An interesting illustration is found in Detwiller v. Hartman, 37 N. J. Eq. 347 (Ch. 1883), in which the testator had provided for a gift in perpetuity to establish and maintain a brass band bearing his name to march to the cemetery and there play a funeral march and other selections on the anniversaries of his death. Although it was not supposed that the decedent urould selfishly or otherwise enjoy the music, it was nevertheless resolved that the purpose to which the gift was intended to be devoted was not in the legal sense charitable. See, also, Morristown Trust Co. v. Morristown, 82 N. J. Eq. 521 (Ch. 1913).

A truly charitable trust, however, does not collapse because the donor created it as a memorial to himself. Martin v. Haycock, 140 N. J. Eq. 450 (Ch. 1947); 10 Am. Jur. 594, Charities, § 13.

An examination of the adjudications has induced Professor Bogert to say: “The question is not what the testator desired to accomplish by the trust, but what in the opinion of the court will be the result of the trust upon the community and society in general. The settlor may have founded the trust solely to satisfy his family pride, for self-glorification, in order to emulate and rival a neighbor’s bounty, to improve living conditions in his home city and thus strengthen his own business interests, or for other reasons unconnected with social advancement in the region in question. The court should not be interested in these incidental psychic or even material advantages to the settlor or his family. The court should, and generally does, direct its attention merely to the question whether the net result of the trust in operation will be to advance the religious, educational, eleemosynary, governmental, or other charitable interests of the community and thus to produce the social advantage required for the charitable trust.” 2 Bogert on Trusts 1110, § 364.

In the Restatement of the Law of Trusts, § 368, appears the comment, “(d) If the purposes to which the property is by the terms of the trust to be devoted, are charitable purposes, the motive of the settlor in creating the trust is immaterial.”

In undertaking to determine the character of the trust from an ascertainment of the reasonably probable intent and purpose of the testatrix, we cannot confine our reflections solely to the language of paragraphs “Fifth” and “Fifteenth” of the will, or to any other isolated testamentary expressions. In this, as in other analogous cases of construction and interpretation, we must survey the entire will and if, taken as a whole, the will exhibits intrinsically a general charitable intent and purpose, such a characteristic indicative of the propensities of the testatrix ought to be accorded some measure of significance. Wilber v. Asbury Park Nat’l. Bank, &c., Co., supra; First Camden, &c., Trust Co. v. Collins, supra; Fidelity Union Trust Co. v. Laise, 127 N. J. Eq. 287 (Ch. 1940).

In the will before us we observe in paragraphs “Ninth” to “Twelfth” inclusive bequests of $1,000 each to the First M. E. Church of Easton, Pennsylvania, St. Luke’s Episcopal Church of Phillipsburg, New Jersey, College Hill Presbyterian Church, and to the Children’s Home of Easton. We consequently perceive in the will, as did the trial judge, a rational basis for the inference that the testatrix in her contemplation of death not only had concern for the natural objects of her bounty, but beyond that a manifest desire to bestow charity.

But counsel for the appellant asserts that it is unreasonable to believe that the testatrix ever seriously envisioned the probability that a dwelling house of but five rooms could be usefully maintained as a home for the aged and blind. The answer is that although the designated means of administering the charity are imprudently, impracticably, or even foolishly selected, the bequest itself is not necessarily void as a charitable use. George v. Braddock,. supra; Christian v. Catholic Church, &c., 91 N. J. Eq. 374 (Ch. 1920); Wilber v. Owens, 2 N. J. 167, 176 (1949); 3 Scott on Trusts 2011, § 374.7. Nor does the monetary inadequacy of the bequest for the intended purpose inevitably destroy its validity as a charitable fund. Parker v. Fidelity Union Trust Co., 2 N. J. Super. 362 (Ch. 1944); Patton v. Pierce, 114 N. J. Eq. 548 (Ch. 1933); Shannon v. Eno, 120 Conn. 77, 179 A. 479 (1935). Moreover even where it is possible to carry out the particular purpose in the manner prescribed, the fulfillment of the specific intention will not be permitted to frustrate the general charitable intention of the settlor. Cf. St. James Church v. Wilson, 82 N. J. Eq. 546 (Ch. 1913); affirmed on this point sub nom. West v. St. James' Episcopal Church, 83 N. J. Eq. 324 (E. & A. 1914).

In the treatment of charitable trusts it would seem that a distinction has in some cases been drawn between those in which performance is impracticable and those in which it is impossible. That distinction cannot of itself be decisive of the destiny of the trust in all cases because it would ignore the question of the application of the doctrine of cy pres which is one of approximation; that is, where the settlor’s original specific purpose fails, his general charitable intent and purpose, if such is evinced, may be effectuated according to law in some other manner “as near as may be” in harmony with the settlor’s intentions. MacKenzie v. Trustees, &c., supra; Brown v. Condit, 70 N. J. Eq. 440 (Ch. 1905); 3 Scott on Trusts, § 399 et seq.; 2 Bogert, Trusts & Trustees, 1287, c. 22; 2 Story, Eq. Jur., § 1169.

It is perhaps true in most of such instances that the testator or testatrix has not contemplated the possible failure of his or her particular administrative method, and in the observance of the cy pres doctrine the courts do indulge in a reasonable conjecture of what the donor would have intended if he or she had envisioned the exigency. Obviously, some courts go much further than others in applying the doctrine.

It is, however, the rule that trustees of a charity may not make a cy pres application of the estate upon their own authority, even though it be desirable. MacKenzie v. Trustees, supra; Lakatong Lodge v. Franklin Bd. of Education, 84 N. J. Eq. 112 (Ch. 1915); 2 Bogert, Trusts & Trustees, 1305, § 435.

In fact, the court will not do so sua sponte where the donor has expressly prescribed the disposition to be made of his gift in the event that it cannot be or is not administered by the donee in accordance with the donor’s intentions, Guyer v. Trustees of Y. M. C. A. of Trenton, 142 N. J. Eq. 400 (Ch. 1948), or if in such event there is a gift over, Fidelity Union Trust Co. v. Laise, 127 N. J. Eq. 287 (Ch. 1940). It must also be remembered that in applying the doctrine of approximation, the American courts do not have the same freedom of action that was possessed by the English courts when acting in pursuance of the prerogative rather than the judicial right.

We regard the following quotations to be concisely expressive of the true rule applicable to the circumstances of the present case: “If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impractical or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” 2 Restatement, Trusts, 1208, § 399.

“But if the charitable purpose is limited to a particular object or to a particular institution, and there is no general charitable intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in some cases after it has taken effect, the doctrine of cy pres does not apply, and in the absence of any limitation over, or other provision, the legacy lapses.” 5 R. C. A., Charities, § 108; Raque v. City of Speyer, Germany, 97 N. J. Eq. 447 (Ch. 1925).

“A court of equity, under limitations which I need not discuss, will carry out the expressed general charitable purpose the donor by the use of means other than those specified by the donor when such specified means have become impracticable or impossible of use. But in all such cases there is a general or comprehensive charitable purpose expressly set forth in the will or inferable from its provisions, beyond which the court will not go in its substitution of a practicable for an impracticable means. The court is acting within the donor’s .charitable purpose, and not beyond it or alongside of it or next to it.” Brown v. Condit, supra.

The foregoing quotations only exemplify the fundamental rule of law that infuses the manifest intention of the donor with predominant substantiality.

It seems sufficient to comment only briefly on the subsidiary points of the argument for the appellant. It is emphasized that there are only six words in the entire will to portray an intention to create this alleged charitable trust, viz., “place for the aged and blind.” Brevity of expression is often as comprehensible as verbosity. To create a charitable trust it is not imperative to use an “artillery of words.” Lord Eldon in Morice v. Bishop of Durham, 10 Ves. 522, stated: “I agree there is no magic in words, and if the real meaning of these words * * * is charity or charitable purposes according to the technical sense in which these words are used in this court, all the consequences follow.” Here there is expressly set forth in the will the general and comprehensive charitable purpose to aid the aged and the blind. Contrast, Brezinski v. Breves, 109 N. J. Eq. 206 (E. & A. 1931).

Additionally, our attention is drawn to the circumstance that the trustee declined to serve. It is axiomatic that equity will never suffer a trust to fail for want of a trustee. Bruere v. Cook, 63 N. J. Eq. 624 (Ch. 1902); affirmed, 67 N. J. Eq. 724 (E. & A. 1903); Case v. Hasse, 83 N. J. Eq. 170 (Ch. 1914); N. J. Title Guar. and Trust Co. v. Smith, supra; Martin v. Haycock, supra; 3 Scott on Trusts 2072, § 397.1; 10 Am. Jur., Charities, 603, § 27; p. 611, § 38; p. 667, § 113.

It seems, too, that the successor trustee can properly exercise the powers conferred by the terms of the trust even though they involve the exercise of discretion, unless the testator manifested an intention that the powers should be exercised only by the trustee originally named by him. Levin v. Attorney General, 136 N. J. Eq. 568 (Ch. 1945); 3 Scott on Trusts, 2072, § 397.1.

In conclusion, we resolve that the testamentary trust was created by the testatrix for a charitable purpose, and we discover nothing in the will to indicate that the testatrix intended to terminate the trust if the agency designated by her to administer it declined to function or if the specific mode or means of its contemplated performance failed of attainment. The announced intention of the court to select an agency and other means cy pres to effectuate the identical general charitable object of the testatrix is justified.

Judgment affirmed.


source: Caselaw Access Project

author: Eastwood, J. A. D.

license: Public Domain

text:
    ANTHONY TORNAQUINDICI, ET AL., PLAINTIFFS-APPELLANTS, v. ANTHONY BOCCHICCHIO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 4, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Edward W. Eichmann argued the cause for the plaintiffs-appellants.

      Mr. Carl Kisselman argued the cause for the defendant-respondent (Mr. Alex P. Schuenemann, 3rd, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The appellants, Mary Yerdi, itardina Artolano, Rita Yerdi, Dolores Yerdi and Raphaele Yerdi, passengers in the automobile of plaintiff, Anthony Tornaquindici, appeal from the verdict of no cause of action returned against them in favor of the defendant, Anthony Bocehicchio, by a jury at the conclusion of the trial of their action before the Camden County Court, Law Division. It is unnecessary to recount the factual situation, except to say that the action is one grounded in negligence arising out of an intersectional collision. At the conclusion of the plaintiffs’ case and the entire case, the court, on motions of the respective parties, dismissed the actions oí the plaintiff-driver, Tornaquindici, against the defendant-driver, Bocchicchio, and the counterclaim of the defendant-driver, Bocchicchio, against the plaintiff-driver, Tornaquindici, on the ground that both were guilty of contributory negligence. The trial of the appellants’ suits against the defendant continued and was submitted to the jury for its determination.

In his charge, the trial judge informed the jury that he had granted motions of the respective operators of the automobiles involved in the accident, dismissing their actions against each other on the ground of their respective contributory negligence, “so that there remains for disposition now by your verdict, a claim of the passengers in the Tornaquindici car against Anthony Bocchicchio as the driver and operator of his wife’s car.” The court further instructed the jury that, as a matter of law, the appellants were not chargeable with contributory negligence; that “With respect to the conduct of the driver, Tornaquindici, if you find that he was guilty of negligence also, his negligence may not be considered as a bar to the recovery of the passengers in his car unless you determine that it was his negligence that was the proximate cause of the accident. The mere fact that he was guilty of some contributing negligence cannot bar their recovery. The basis upon which the plaintiffs may recover is upon the proof of negligence on the part of Bocchicchio, and that, that negligence W'as the proximate cause of their injuries.” Following the return of the verdict of no cause of action, the appellants made an application to the trial court for a new trial on the grounds that (1) the verdict was against the weight of the evidence; (2) the verdict wras the result of bias, passion, prejudice or mistake on part of the jury; and (3) the verdict was inconsistent with the finding of the jury that the defendant was negligent. The court denied the application for a new trial. Thereupon, the appellants appealed from the judgment. No appeal was taken by either Tornaquindici or Bocchicchio from the dismissal of their respective actions.

The only issue raised on this appeal is that the verdict and the consequent judgment is contrary to law, “since the court had instructed the jury that the plaintiff passengers were not contributorily negligent as a matter of law, and that the defendant Bocchicchio, was guilty of negligence as a matter of law.” The appellants made no requests for any specific instructions, nor did they interpose any objections or take any exceptions to the court’s charge. Their sole contention is that the jury’s verdict is contrary to the law as they perceive it to be, based upon the dismissal of the suits of the plaintiff-operator and the defendant-operator against each other, on the ground of their contributory negligence and the court’s charge to the jury that the appellants, under the evidence, were not chargeable with contributory negligence.

The maxim, “omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium,’’ is given its full and appropriate application by courts of review and all reasonable presumptions and intendments consistent with the record will be indulged in favor of the validity of the judgment or decision under review and of the regularity and legality of the proceedings below. Unless the record shows something to the contrary, it will be presumed that the lower court acted wholly within the law; that the judgment was entered upon proper grounds; that the trial court applied the law correctly and to establish the contrary, the appellant must show error. 3 Am. Juris, Appeal and Error, § 924, p. 490, and cases cited in the footnotes. The reviewing court will presume that instructions given by the trial court as to which no objections were taken, were correct and sufficient and fully and adequately presented the law and issues to the jury based upon the state of facts in the case and made relevant either by the pleadings or by the evidence. In the absence of anything to the contrary in the record, the court must assume that the principles of law covering the particular action were properly given to the jury in the instructions of the court and that the law covering the defense set up was correctly stated. In the absence of exceptions to instructions or requests for others, the court must assume that all issues supported by evidence were submitted to the jury under proper instructions. 3 Am. Juris., Appeal and Error, § 948, p. 510, citing Foster v. Congress Square Hotel Co., 128 Me. 50, 145 A. 400, 67 A. L. R. 239, 248 (Sup. Jud. Ct. 1929).

We have experienced difficulty in ascertaining the basis oí appellants’ appeal, particularly in view of the fact that the complaint and pretrial order sought recovery solely against the defendant, charging that his negligence was the proximate cause of their injuries, and the fact that the trial proceeded to a conclusion on that theory. As we view the appeal, the appellants’ contention seems to be that when the court dismissed the actions of the respective operators against each other on the ground that both were guilty of contributory negligence, and when the trial judge charged that the appellants, as a matter of law, were not contributorily negligent, therefore, the defendant’s contributory negligence having been determined as a matter of law by the court, the only question that remained for the jury to decide was the amount of the appellants’ damages. However, unfortunately for the appellants, the question now raised on this appeal by appellants was not raised at any time before the trial court. Consequently, under the decided cases, the appellate court will not consider alleged errors committed by the trial court unless appropriate objections were timely made. The appellants’ contention appears to be analogous to that made in the case of DeCicco v. Marlou Holding Co., 137 N. J. L. 186, 189 (E. & A. 1948), where the court stated:

“* * * Actually, however, the plaintiff’s contention is not that the court erred in what it said, but that error resulted from what the court omitted to say. * * *.
“Plaintiff’s attorney cites several eases to sustain the proposition that exceptions may be taken to what the trial court may omit to say in the charge even though no request to charge be made. Our review of these cases indicates that they do not sustain this proposition, nor do we believe that such a principle is legally sound. Errors on the part of the trial court cannot properly be considered and corrected on appeal unless they appear in the record, and with respect to the charge this is not accomplished unless exceptions are taken to what the trial court said or what such court refused to say when specifically requested to do so. * *

See also Mancino v. Sampaolo, 122 N. J. L. 321, 322 (Sup. Ct. 1939); Schwartz v. Rothman, 1 N. J. 206 (Sup. Ct. 1948), at pp. 210, 211. In several of the jurisdictions throughout the United States, it is held that the court’s instructions to the jury, made without objection or exceptions thereto, are the law of the case and the verdict of the jury returned in conformity therewith will not be disturbed unless there are errors plainly appearing in the record that may justify such action. As indicating the general acceptation of the prevailing rule, we quote from Mattfeld v. Nester, 226 Minn. 106 (Sup. Ct. 1948), 32 N. W. 2d 291, 3 A. L. R. 2d 909, at p. 927:

“No objections having been taken to these portions of the charge, they became the law of the case under the rule that instructions unobjected to at the trial or on motion for a new trial, whether correct or erroneous, become the law of the case both in the trial and in the appellate court. Novotny v. Bouley, 223 Minn. 592, 27 N. W. 2d 813; Katzmarek v. Weber Brokerage Co., 214 Minn. 580, 8 N. W. 2d 822; Fidelity & Casualty Co. of New York v. Minneapolis Brewing Co., 214 Minn. 436, 8 N. W. 2d 471; Anderson v. Hegna, 212 Minn. 147, 2 N. W. 2d 820; 6 Bunnell, Dig. & Supp., Sec. 9792.”

Other cases supporting this rule are Commonwealth of Massachusetts v. Donald S. Friede, 271 Mass. 318, 171 N. E. 472, 69 A. L. R. 640 (Mass. Sup. Jud. Ct. 1930), and National Surely Corporation v. City of Excelsior Springs, 123 F. 2d 573, 156 A. L. R. 422, 428 (U. S. C. C. A. 8th Cir. 1941). The courts of New Jersey have substantially enunciated this rule as will appear from the opinion of Chief Justice Gum-mere in the case of Fritz v. Sayre & Fisher Co., 77 N. J. L. 236 (Sup. Ct. 1909), at p. 237, where it is stated: “It is entirely settled that a verdict cannot be supported upon a theory of the law contrary to that on which the case was submitted to the jury. Hays v. Pennsylvania Railroad Co., 13 Vroom 446; Marts v. Cumberland Insurance Co., 15 Id. 478; Halsey v. Lehigh Valley Railroad Co., 16 Id. 26; Sensfelder v. Stokes, 40 Id. 86; Oakley v. Emmons, 44 Id. 206.” See also Lambert v. Trenton and Mercer Co. Traction Corp., 3 N. J. Misc. 237 (Sup. Ct. 1925, not officially reported); Cikatz v. Milwid, 5 N. J. Misc. 768 (Sup. Ct. 1927, not officially reported).

The appellants’ actual contention, as we see it, is reduced to the legal proposition that they were entitled to recover against the defendant alone notwithstanding the negligence of the driver oí the car in which they were riding. That this rule is firmly established in this State is manifest from the cases of DeCicco v. Marlou Holding Co., supra; Clark v. Public Service Electric Co., 86 N. J. L. 144 (E. & A. 1914); Kaufman v. Pennsylvania Railroad Co., 2 N. J. 318 (Sup. Ct. 1949). A reading of the charge indicates that the court did convey this rule of law to the jury when it stated that: y0U -gn(j ke (Tornaquindici) was guilty of negligence also, his negligence may not be considered as a bar to the recovery of the passengers in his car unless you determine that it was his negligence that was the proximate cause of the accident. The mere fact that he was guilty of some contributing negligence cannot bar their recovery.” (Parenthesis ours.) It may well be that, if the appellants were dissatisfied with the court’s charge as to this rule of law, by making a timely request, the court would have elaborated thereon. No such request was made, however, nor was any exception made to the charge as delivered. It appears to us that there was some inconsistency when the court informed the jury of the dismissal of the respective suits of the operators of the cars because lie had found each guilty of contributory negligence as a matter of law, and then submitting to the jury the question of whether plaintiffs had borne the burden of establishing defendant’s negligence as the proximate cause of their damages. However, as stated, the appellants made no request to charge that the court having determined the defendant’s negligence, the only question for the jury’s deliberation was the amount of appellants’ damages. From our review of the scanty record furnished us, there is no proof that there was any error committed at the trial and the jury’s verdict was obviously in conformity with the court’s charge. After all, it may well be that the issue of defendant’s negligence was, under the circumstance, properly submitted to the jury for its determination; that aside from the court’s determination of negligence as between the plaintiff and defendant drivers in their suits against each other, the issue of defendant’s negligence remained, under the circumstances, a factual issue, so far as the appellants’ damages are concerned. The obvious implication of the jury’s verdict is that they were not in accord with the court’s earlier finding of contributory negligence on the part of the defendant and their finding was that the defendant’s negligence was not the proximate cause of the plaintiffs’ injuries. It is conceded that the issue of fact as to whether defendant’s negligence or plaintiff, Tornaqúindici’s negligence, proximately caused their injuries, was the storm center of the trial of appellants’ case and this question was vigorously contested at the trial. We think that the appellants are bound by the verdict returned against them and that there is no error that justifies disturbing it.

We have examined the cases cited by the appellants in their brief and additional cases submitted at the oral argument. We find that on appeal the legal error complained of in the cited cases was grounded either on appropriate objections timely made at the trial or that the judgment was alleged to have been against the weight of the evidence. Accordingly, they have no applicability to the issue before us.

The judgment of the trial court is affirmed, with costs.


author: Bigelow, J. A. D.

text:
    MARY CAPONE, ADMINISTRATRIX, ETC., PLAINTIFF-RESPONDENT, v. HENRY K. NORTON, TRUSTEE, ETC., DEFENDANT-APPELLANT. PETER PANEPINTO, ADMINISTRATOR, ETC., PLAINTIFF-RESPONDENT, v. HENRY K. NORTON, TRUSTEE, ETC., DEFENDANT-APPELLANT. RIDGEWOOD CLEANERS, INC., PLAINTIFF-RESPONDENT, v. HENRY K. NORTON, TRUSTEE, ETC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided January 4, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Louis Santorf argued the cause for the respondents (Mr. John A. Masiello, attorney for Mary Capone; Mr. August A. Azzolino, of counsel, and Mr. Benjamin P. Galanti, attorney, for Peter Panepinto).

      Mr. Harry Nadell argued the cause for the respondent Bidgewood Cleaners, Inc. (Messrs. Cole, Morrill & Nadell, attorneys).

      Mr. Charles S. Barrett, Jr., argued the cause for the appellant (Messrs. Lum, Fairlie & Foster, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

In these cases, which spring from a fatal grade crossing accident, the principal question is whether the amount of damages fixed by the trial judge was excessive. Two other questions were also argued and these we will consider first.

One action was begun January 25, 1949, and the other the following day. Within ten days thereafter and before even filing an answer, the defendant served interrogatories (presumably by leave of court, for no objection was made), asking each administrator to “Eurnish the names and addresses of any and all witnesses to the said accident.” One administrator answered February 18. “I personally do not know the names and addresses of any witnesses to the said accident.” The other administrator answered March 7, 1949. “The only witness to the accident that deponent knows of is Louis Friedman, Esq., of 64 Hamilton Street, Paterson, N. J.”

A year later — at the end of February 1950 — the cases, consolidated, came to trial. The plaintiffs presented an eyewitness, Miss Elizabeth J. Barker, and the defendant promptly objected because her name had not been given in response to the interrogatories. Evtush v. Hudson Bus, etc., Co., 10 N. J. Super. 45 (App. Div. Nov. 1950). Not from cross-examination or otherwise did it appear that the plaintiffs, their attorneys, or anyone acting for them, had the name of the witness when the interrogatories were answered. The defendant-appellant argues that it was the plaintiffs’ duty, on learning of the existence of this witness, to furnish his name to defendant. Before September 15, 1948, when our present rules became effective, one party could not call upon another for the names of witnesses. Whatever duty in the premises lay upon the plaintiffs, was created by the rules. Rule 3 :33, by reference to Rule 3 :26-2, permits inquiry as to the “identity and location of persons having knowledge of relevant facts.” The answer to the query must be served within 15 days. Rule 3:33. It is entirely clear that no information obtained by a party after the time for answering has expired, need be given. The trial court correctly overruled defendant’s objection. We add that the defendant, if he had thought to do so when the day of trial approached, might have renewed his inquiry for the names of witnesses. Or he might have brought up the subject at pretrial conference.

Shortly after the trial, the defendant moved for a new trial on certain facts which defendant had just learned: During the trial, one of the jurors had divulged to his fellows that he had passed the scene of the accident only 15 minutes after the accident had occurred. The court properly denied the application for a new trial. There was no charge of misconduct by the j uror. When he walked or drove along Broadway in Paterson in June, 1948, he could not have foreseen his jury service a year and a half later. And the juror did not witness anything that might have thrown light on any issue. Indeed, nearly the only issue that went to the question of liability was whether the crossing gates were down or not, when the automobile carrying plaintiffs’ intestates was driven onto the crossing. The juryman arrived on the scene much too late to have any knowledge on that score.

We now come to the assessment of damages. The jury appraised the pecuniary injuries of the next of kin of Harry Capone at $28,200, and of the kin of Miss Panepinto at $42,000. On motion for a new trial, the court found these figures excessive but instead of ordering new trials, gave the plaintiffs an option of taking judgments for $24,000 and $34,000. The plaintiffs elected to enter judgments in the reduced amounts. A verdict of a jury in a tort action is never disturbed on the ground that it is excessive, except in an entirely clear case. Salvato v. N. J. Asphalt, etc., Co., 135 N. J. L. 185 (E. & A. 1947). It is still the general rule that a verdict will not be set aside as against the weight of evidence, unless the verdict appears to be the product of passion, prejudice or mistake. Stephens v. Public Service Coord. Transport, 5 N. J. Super. 128 (App. Div. 1949) ; Vadurro v. Yellow Cab Co., 8 N. J. Super. 208 (App. Div. 1950). The finding of a fact by the trial judge, when reviewed pursuant to Rules 1 :2 — 20 and 4:2-6, has not as great force as a jury’s verdict. The rules remind us that “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Beyond that, every intendment is in favor of the judgment under review, and we should not disturb the court’s finding of fact unless we are well satisfied that the finding is a mistaken one. McGowan v. Peter Doelger Brewing Co., 10 N. J. Super. 276 (App. Div. Nov. 1950). But respect for the trial court imposes no restraint on our power fully to analyze the proofs and thereby arrive at a eonelusion whether the finding is consistent with the evidence. Lehmann v. Lehmann, 7 N. J. Super. 232 (App. Div. 1950). In the instant case, the verdict of the jury has already been set aside as to the amount of damages and what we are reviewing is the finding of the judge. But since both judge and jury found that the pecuniary injuries to the next of kin equalled or exceeded the amounts stated in the judgments, the finding of the trial judge may be accorded even greater deference than ordinarily.

One of the decedents, Harry Capone, unmarried, 27 years old, lived with his father, age 70 or 71 at the time of trial, and his mother, age 66. He had also 11 brothers and sisters, but no attempt was made to show that any of them suffered a pecuniary injury from his death. Por the last two years of his life, he was a partner in a business known as the Ridge-wood Cleaners. His father was employed in a dye shop, and earned sometimes $54 a week. But other times he earned much less, working only two or three days a week. Mrs. Capone testified that her son paid $50 a month on a mortgage upon his parents’ home; that “He paid the gas; he paid the tax; he paid everything.” He kept the house in repair. And in addition, he handed over to his mother $25 a week. That is all the information we have as to the pecuniary loss sustained in his demise. There was a likelihood that had the son lived, he would marry within a few years and establish a home of his own. On the other hand was the probability that his father would be less able to work as time went on and, with his mother, would need more help. And the son’s capacity to help might increase.

The other decedent was Jean Panepinto, an unmarried woman, 27 years of age, who also lived with her parents. Her father was age 53 and her mother 50 at the time of trial. Her mother owned a little beauty shop that Jean ran, aided to some extent by a younger sister. Her father, who was the only witness on the subject of damages, testified that he himself “had been working right along;” but how much he earned he did not divulge. He sought, however, to convey the impression that he was in prosperous circumstances. He said that his deceased daughter paid her parents “sometimes $50, sometimes $65, sometimes $45” a week, depending on how the business was. “She would strike an average of $60.” How much of this represented a return on the mother’s investment, does not appear. Jean kept books of account in connection with the business, but the witness did not produce them and had not looked into them himself. Our only other information as to pecuniary loss is that Jean helped her mother do the housework. Since it is patent that the plaintiff — the father as administrator — could readily have presented more exact evidence as to pecuniary injury than he did, few inferences can be drawn in his favor.

We need hardly say that nothing can be included in the damages for the grief of the parents or loss of companionship; only the pecuniary injury can be considered. Cooper v. Shore Electric Co., 63 N. J. L. 558 (E. & A. 1899) ; McStay v. Przychocki, 10 N. J. Super. 455 (App. Div. Dec. 1950).

In each case we have made what we consider a liberal forecast of the average yearly value or amount of decedent’s services and payments to his or her parents. And from that we have deducted a reasonable sum as the cost of board and lodging and, in one case, a return to Mrs. Panepinto, as owner of the shop. Consider the balance as an annuity and calculate its present value. Mr. Panepinto, as administrator, has already been paid on account $3,000 by a joint tortfeasor and must give credit for that sum. In our opinion, the assessment of damages by the trial court, $24,000 in the one case, and $34,000 in the other, cannot be sustained on such an analysis or on any reasonable hypothesis suggested by counsel.

We are satisfied that the findings as to damages must be set aside. We make no assessment ourselves, since it seems better to have new trials on the amount of damages so that more evidence on the subject may be presented. Appellant argues that the amounts awarded by the jury were so grossly excessive as to indicate a partiality that vitiates the whole verdict, including the finding of liability. But we would say that the size of the verdict indicates a mistake as to the nature of the award, or else indignation aroused by what the jury considered was clear proof that the negligence of defendant’s servants had caused the. fatal accident. Considering the evidence relating to liability separately, it amply supports the jury’s finding on that issue.

' The judgment in favor of Ridgewood Cleaners, Inc., owner of the automobile that was demolished, will be affirmed with ■ costs. The Capone and Panepinto judgments will be reversed without costs to either party, and new trials directed on the issue of damages only.


author: Haneman, J. S. C.

text:
    ALBERT SACCO, PLAINTIFF, v. GEORGE SCHALLUS, Jr., BY HIS GUARDIAN AD LITEM, GEORGE SCHALLUS, Sr., DEFENDANT.
    Superior Court of New Jersey Chancery Division.
    Decided December 15, 1950.

      Mr. John B. Baratta, attorney for plaintiff.

      Mr. Edward V. Martino, attorney for defendant.
   Haneman, J. S. C.

This is a motion by the defendant to dismiss the action herein commenced because the complaint fails to state a claim against him upon which relief can be granted. The facts set forth in the complaint upon which relief is demanded are as follows:

In the latter part of December, 1948, the plaintiff and the defendant orally agreed to be partners in the business of buying and selling at retail groceries, meats, produce and provisions in a store to be erected on property the purchase of which the said parties then had in contemplation. Under the terms of the agreement the parties were obliged to contribute equal amounts of cash for the purchase of the real estate; the construction of a building to be erected thereon; the purchase of all necessary fixtures, equipment, merchandise and other requisites of said business. In addition, the said parties were to contribute services in connection with the construction of the building contemplated, for which they were to be compensated as follows — plaintiff at the rate of $2.50 per hour and defendant at the rate of 90c per hour, and their eventual respective capital interests in the partnership were to be predicated not only upon the actual cash contributed but upon the value of the services so rendered. The defendant was to keep a full, complete and accurate account of the business of the partnership. At the time the contract of partnership was entered into the defendant was 18 years of age and will not attain his majority until February 17, 1951. There is no allegation in the complaint that the defendant fraudulently misrepresented his age or that the plaintiff did not have knowledge at the time the agreement was entered into that the defendant was a minor. For all that ■ appears in the said complaint, the plaintiff knew at the time the contract was entered into that the defendant was a minor. The liquid assets are presently of the value of approximately $500 and the debts approximately $1,000. The business has been conducted for some time past at a loss.

Plaintiff demands a dissolution of the partnership; contribution from the defendant for the monies he allegedly agreed to contribute and has failed to contribute; an assumption of a share of the debts of the partnership; an ascertainment of the respective interests of the plaintiff and defendant in said partnership, and an accounting from the defendant.

The defendant has filed an answer and counterclaim in which he admits that there was an agreement of partnership entered into and that the parties were to contribute equally toward the purchase of real estate, construction of a building and the purchase of fixtures, equipment and merchandise. Defendant denies that he was to contribute additional capital, and that the furnishing of the actual labor for the construction of the building was to be paid for as plaintiff sets forth, but alleges that the plaintiff and defendant were to share the work on an equal basis and have an equal interest in the structure when completed. Defendant denies that he kept the books of the partnership.

By way of counterclaim, the defendant disavows the contract because of his infancy and seeks the recovery of the actual cash contributed by him to the partnership, and of the reasonable value of his services.

The gist of the defendant’s motion is that in view of the fact that the plaintiff admits defendant’s infancy, and in further view of the fact of defendant’s disavowal of the contract, plaintiff is barred from any relief.

Plaintiff’s argument in opposition thereto bases his right to relief upon the contention that the defendant, upon a disavowal of the contract, is required to put him in statu quo. Paraphrased, this can only mean that the infant cannot retain the benefits while disavowing the contract. By this argument, he contemplates that the defendant must make further contributions of cash allegedly not heretofore made in accordance with the terms of the contract, and that the defendant should share proportionately in the losses sustained in the operation of the business and have an interest in the assets of the business in such proportions as the court may find the agreement called for.

The question here involved, therefore, is whether the plaintiff is entitled, under the facts pleaded, to the relief demanded.

It must, at the outset, be conceded that generally all contracts of infants are voidable. La Rosa v. Nichols, 92 N. J. L. 375, 105 A. 201 (E. & A. 1918); Levine v. Mallon Oldsmobile Co., Inc., 127 N. J. L. 197, 21 A. 2d 852 (Sup. Ct. 1941); R. J. Goerke Co. v. Nicolson, 5 N. J. Super. 412, 69 A. 2d 326 (App. Div. 1949) ; Carter v. Jays Motors, Inc., 3 N. J. Super. 82, 65 A. 2d 628 (App. Div. 1949).

There is no requirement that a disavowal of a contract by an infant shall fill any prescribed form or ceremonial, and the filing of an answer by an infant disaffirming the contract is sufficient in and of itself to accomplish that result. Bankers Trust Co. v. Bank of Rockville, &c., 114 N. J. Eq. 391, 168 A. 733 (E. & A. 1933).

Generally, in connection with a purchase of a chattel, an infant may disaffirm or disavow his contract and recover back the money paid thereon, less proper offsets for diminution in the value of the chattel. As has sometimes also been stated, recovery by an infant cannot be had without a restoration to the other party of the consideration received, or an allowance from such recovery as compensation for the benefit conferred upon the infant seeking to void the contract. Levine v. Mallon Oldsmobile Co., Inc., supra; Reggiori v. Forbes, 128 N. J. L. 391, 26 A. 2d 145 (Sup. Ct. 1942) ; R. J. Goerke Co. v. Nicolson, supra.

An infant can, in a proper case, be estopped from a recovery. The infant will not be permitted to set up the privilege of his infancy arising because of his fraudulent conduct. La Rosa v. Nichols, supra; Reggiori v. Forbes, supra. There is present in the case sub judice, however, no allegation of any such conduct on the part of the infant as would serve to estop him from disavowing or disaffirming the contract.

It is to be noted that in all of the cases above cited where the infant wras estopped from taking advantage of a disavowal or disaffirmance of the contract, or where the infant was obliged to place the adult who wras a party to the contract in statu quo, the infant had entered into a contract of purchase. This is true with the exception of the case of Reggiori v. Forbes, supra, which is distinguishable from the case sub judice.

There is no reason that the principle of disavowal involved in a contract of partnership should not be identical with the principles applicable in the case of any other contract. 27 Am. Jur. 771; 31 C. J. 1084; 43 C. J. S. 199.

The difficulty of the determination of the problem with which we are now faced, however, is the question of the infant’s rights upon the disavowal of the partnership contract. There is no case in New Jersey in which this question has been determined. In foreign jurisdictions, however, there is no unanimity about an infant’s right to recover his initial contribution upon a disavowal of the partnership contract. The foreign jurisdictions exhibit two schools of thought: (1) that the infant may recover such contributions, less the amounts received by him, and (2) that he cannot recover such contributions unless he was induced to enter into the contract through the fraudulent representations of the adult.

Although all of the reported cases are in accord that a contract of partnership is voidable at the instance of the infant, there is no reported authority for the principle that an adult partner can recover against said infant upon such avoidance for the executory features of the contract, i. e., promises to make future contributions or assume future liabilities. 58 A. L. R. 1368; 31 C. J. 1085; 43 C. J. S. 199; 27 Am. Jur. 771, 788.

Plaintiff relies heavily upon the following language in Reggiori v. Forbes, supra:

“Williston on Contracts (Rev. Ed.) 705, sec. 238, says: ‘Though the weight of authority still permits an infant vendee to recover the price paid merely upon offering to return the property, if any, remaining in his hands, without accounting to the vendor for its depreciation or use, there is an increasing number of jurisdictions which allow the vendor to deduct for such depreciation and use. In view of the general education and early sophistication of youth, when minors commonly transact a considerable volume of business on their own behalf, the latter view which rests upon the equitable basis that, if the contract is fair and reasonable, then the minor should not be permitted to overreach any more than the adult seems clearly the better.’
“The adoption of such a rule would be in accord with the wise counsel of Lord Mansfield as quoted in Hall v. Butterfield, supra: ‘Great inconveniences must arise to others if infants were bound by no act. The law, therefore, at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts for their benefit. * * *. A third rule, dedueible from the nature of the privilege that is given as a shield and not a sword, is, that it never shall be turned into an offensive weapon of fraud or injustice.’ ”

The most that can be said lor the quoted language, as applicable to the present case, is that the defendant may be required to return the benefits received under the contract before he may be discharged from liability. The only benefit which the defendant here received were several payments of cash, which he has offered to credit upon any sum found due him.

The courts have been most zealous in protecting the estate of an infant. It would be entirely inconsistent to require a parent to be appointed a guardian, file bond before investing his minor child’s funds and then to so invest only in designated securities, and by the same token permit an adult to receive the money for investment from the infant himself without let, hindrance or liability. Now, can we say that an infant may do on his own behalf, without any supervision, what the parent could not do without obtaining prior judicial authority ?

To determine that the infant is to be held to his contract and required to place an adult in what it is here urged constitutes status quo would open the door to fraud and imposition upon the infant.

Courts have always been very vigilant to protect the infant from liabilities resulting from a “business” venture with an adult. As early as 1811, in Houston v. Cooper, 3 N. J. L. 431 (Sup. Ct. 1811), the court said as follows:

“That an infant undertakes to trade for himself does not cure the incapacity of his infancy. It is the real or supposed incapacity of mind in the infant, to make judicious contracts, that the law renders invalid his bargains, and the more contracts he makes the more danger of injury and ruin to himself, which the law is intended 1o guard against; * *

The defendant admittedly contributed upwards of $3,600 in cash as his capital contribution, and is now facéd with an investment in an allegedly insolvent business. The fact that the business venture was here unsuccessful is of no moment in connection with the determination of the applicable law, except that it demonstrates the dangers attendant upon any determination other than that an infant may disavow a partnership contract without being called upon either to make further contributions or to assume further liabilities.

It is of utmost importance that where an adult, knowing of the minority of an infant, enters into a business venture with him, that the infant be protected against imposition and from the errors of his own judgment arising because of his lack of experience. An adult so dealing with an infant must do so at his own risk. It is more important to protect the infant than to circumvent his disability by affirming his contract with the adult in the guise of placing the adult in statu quo. Therefore, in so far as the plaintiff here seeks the determination of his proportionate interest in the partnership and the recovery of both additional contributions toward the capital structure of the partnership and for the additional liability resulting from the operation of the partnership, plaintiff has no cause of action.

The plaintiff is, however, entitled to both a dissolution of the partnership and an accounting from defendant. It would be inequitable to permit the defendant to disavow the contract without accounting for his management of the business.

The motion will therefore be denied, in so far as the plaintiff’s demand for a dissolution and accounting of defendant’s operation of the partnership business are concerned, but will be granted in so far as the other relief which is demanded is concerned. .

Judgment will be entered accordingly. .


author: Hartshorne, J. C. C.

text:
    FIDELITY UNION TRUST COMPANY, AS TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF MICHAEL J. DOYLE, DECEASED, PLAINTIFF, v. THE CITY OF NEWARK, AND MEYER C. ELLENSTEIN, DIRECTOR OF REVENUE AND FINANCE AND RECEIVER OF RENTS OF THE CITY OF NEWARK, DEFENDANTS.
    Essex County Court Law Division
    Decided December 14, 1950.

      Messrs. Riker, Emery & Danzig (Mr. Charles W. Kappes, Jr., appearing), attorneys for plaintiffs.

      Mr. Charles Handler (Mr. Joseph A. Ward, of counsel), attorney for defendants.
   Hartshorne, J. C. C.

Plaintiff, the former owner of certain premises in the City of Newark, sold on tax sales to the City, sues the City for the amount of certain net rents collected from such properties by the City under the statute, during the period plaintiff still owned the property, and the City was the holder of the tax sale certificates thereon. Defendant claims these net rents, in the stipulated amount of $767.25. are to be applied by it to the payment of unpaid taxes on such property, imposed subsequent to the taxes for which the property was sold. Such is the issue in this cause, tried before the court without a jury on stipulated facts.

This issue obviously depends upon the interpretation of the tax sale statutes under which the City sold the property for taxes and went into possession as purchaser of the tax sale certificate to collect rents. “The interpretation of the (statutes in question) depends upon the nature of the subject-matter and the object which the Legislature sought to accomplish.” Newark v. Lodato, 139 N. J. Eq. 471 (Ch. 1947).

The underlying purpose of the statutes authorizing municipalities to sell lands for taxes is to, enable the municipality to obtain the payment of its taxes without going into the real estate business. The municipality is given a wide variety of statutory methods to hold, and to proceed with, tax sales. It may sell the property therein either to third parties or to itself. It may sell to itself by various methods. When it sells to itself, it may assign the tax sale certificate to a third party by several methods:

(1) It may sell such certificate without affecting “any municipal lien subsequent to the certificate of tax sale.” (R. 8. 54:5-114.1, as amended by P. L. 1941, c. 232, p. 651, § 1.)

(2) It may sell its tax sale certificate “including all subsequent municipal liens held by” it. (R. S. 54:5-114.2, as amended by P. L. 1943, c. 149, p. 425, § 1.) Under paragraph (b) of this latter statute, it may sell its tax sale certificate to a purchaser for a sum “less than the total amount due .on such certificate of tax sale, including all subsequent liens plus interest and costs.”

The properties in question here were apparently sold, according to the stipulated facts, under this last statutory provision, and bought by the purchaser for such a deficit purchase price. This statute further provides that the total amount required for redemption from such tax sale shall include not only the amount of the tax sale, but “all subsequent municipal liens with interest and costs,” save that this sale shall not cover “taxes for the current year” of the sale. (Ibid § 114.3.) The purchaser from the City of the tax sale certificate must further foreclose the property owner’s right of redemption within two years. Until he does so, he shall not be given possession of the tax sale certificate, which the City shall continue to hold. (Ibid., § 114.7.) Furthermore, if in such foreclosure proceedings a person in interest shall redeem “by paying the full amount found to be due by the court, the assignee (of the tax sale certificate) shall only be entitled to receive out of said (redemption) moneys the amount actually paid to the municipality for said assignment together with lawful interest thereon from the date of payment * * * the balance shall be paid to the municipality.” (Ibid., § 114.8.) In short, under the statute, even if the purchaser of the tax sale certificate — the assignee — purchases such certificate for an amount less than that due on the certificate, including all subsequent liens (as he did here), this deficit is still due the municipality. In other words, the municipality is still deemed to hold the property as security for the full payment by the property owner to it, of its taxes due.

This intent would seem in full accord with the statute, giving the municipality the right to collect rents and profits by taking possession of the property when it became the holder of a tax sale certificate. (B. 8. 54:5-53.1, as amended by P. L. 1943, c. 144, p. 393, § 1) and with the acts of the parties. This is made clear: (1) by the fact that these very assignments of the tax sale certificates (Stipulation, Schedule A) specifically reserved to the City of Newark, until the recording of the final foreclosure is decreed, or until redemption by the property owner, the right, as holder of the tax sale certificates, to collect and apply the rents under the statute for its protection and benefit; (2) the rent statute itself specifically provides that “Whenever a municipality has * * * become the purchaser of any lands at any tax sale * * * (it) shall be entitled to immediate possession of the property sold * * * and to all the rents and profits thereof while the holder thereof, until redemption * * (Ibid.) In this very case, the City of Newark remained the holder of the property and of the tax sale certificate until the final foreclosure decree, which occurred May 13, 1946. Under the statute, it, therefore, had the right to the rents and profits till such date. The net rents in dispute here were all collected before such date, according to the stipulated facts.

The statute further provides that “all rents and profits collected by such municipality shall be credited on the amount due upon said certificate of tax sale and for subsequent taxes * * *.” (Ibid.) Accordingly, upon final foreclosure, to which proceedings the property -owner is a party, the City must credit upon the amount due from the land the amount received on the sale of the above tax certificate. But if this, as is the case here, does not cover the amount due from the land, including “subsequent taxes,” the court decrees, as against the property owner, that the balance of the rents and profits is to be applied by the City to pay this tax deficit.

In short, the purpose of the above tax sale proceedings, whereby the municipality, the owner of the tax sale certificate, assigns same to a third party for a sum less than that due thereon, plus subsequent municipal liens, is not to make the municipality lose this deficit in taxes. Rather the intention is to enable the municipality to recover this deficit from the property, either directly from the property owner on his redemption of the property, or by using the rents and profits from such property for such purpose. There is no indication in this particular statute that the owner, who has failed to pay the taxes due on the property, can make the City return to him the rents and profits which the City has lawfully collected from the property to pay those very taxes.

Since the statute is to be interpreted in accordance with its intent, as seen above, and since the mere clerical failure of a municipal employee to apply these rent moneys promptly, as required by law, cannot estop the City from carrying out the law (J. S. Rippel & Co. v. Newark, 136 N. J. Eq. 467 (E. & A. 1945); State v. Giller, 5 N. J. Super. 130 (App. Div. 1949), judgment may be entered for the defendants-


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

text:
    BETSY RATERING AND HENRY RATERING, PLAINTIFFS-APPELLANTS, v. MATTIO MELE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 10, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Hyman W. Rosenthal argued the cause for the appellants (Messrs. Marcus & Levy and Harry Chashin, attorneys).

      Mr. Charles C. Stalter argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment of dismissal entered at the close of the plaintiffs’ case.

The defendant operated “Matty’s Alpine Inn” located at Haledon, New Jersey. The Inn consisted of a dining room seating approximately 100 people and a bar room seating 18 or 20 people. At the entrance there was a vestibule which contained four steps between its outer and inner doors. On October 23, 1948, there was a customary Saturday night dance at the Inn. At 11 p. m. the plaintiffs, Betsy Batering and her husband Henry Batering, in the company of Mr. and Mrs. Kuyper, entered the Inn. There was testimony by Mr. Batering that at that time the vestibule steps were littered with cigarette butts, matches, cellophane paper, and similar matter. Mrs. Kuyper testified that the steps were dirty and somebody had coughed up something which “was laying on the steps” and which she believed had been stepped on “because it was black.”

The plaintiffs and the Kuypers remained at the Inn until about 1:30 a. m. While leaving the premises Mrs. Batering, after having walked down two of the steps in the vestibule, fell and injured herself. She testified that “There was something was laying, something there that I slipped on it.” Her husband testified that at that time the conditions in the vestibule were worse, there being more cigarette butts, matches and paper around. Mrs. Kuyper testified that the steps were “still dirty” and that after her fall Mrs. Batering’s coat and dress were dirty and had to be sent to the cleaner. In a deposition the defendant stated he had swept the premises on Saturday morning, October 23, 1948, and thereafter on Sunday morning and that although he found the inside of the premises littered with papers and cigarette butts the entrance steps were “very clean.” The lower court concluded that there was nothing in the plaintiffs’ evidence from which it might be inferred that Mrs. Batering fell as a result of the defendant’s negligence and granted his motion for dismissal. See Rules 3 :41-2, 3 :50.

Although the defendant, as operator of the Inn, was not an insurer of the safety of his patrons, he was admittedly under obligation to provide them with a reasonably safe place, including proper means of egress, and to exercise “ordinary care in fulfilling the obligation to thus safeguard them.” Coyne v. Mutual-Grocery Co., Inc., 116 N. J. L. 36, 38 (Sup. Ct. 1935). Unlike Cleary v. Meyer Bros., 114 N. J. L. 120 (E. & A. 1935), where there was no testimony as to the cause of the fall, there was evidence in the instant matter from which the jury could infer that the steps were improperly littered with enumerated foreign substances and that Mrs. Eatering slipped on one of them and fell. Her .inability to state which of the foreign substances caused her fall would not appear to be significant. The remaining question is whether there was evidence to indicate that the improper condition of the steps had, in sufficient time, been brought to the attention of the defendant or had “existed for so long a time as to be, in the exercise of reasonable care, discoverable and remediable before the occurrence of the injury.” See Coyne v. Mutual Grocery Co., Inc., supra; Kalb v. Fisher, 5 N. J. Misc. 977 (Sup. Ct. 1927); affirmed, 105 N. J. L. 491 (E. & A. 1929). Cf. Cooper v. Reinhardt, 91 N. J. L. 402 (Sup. Ct. 1918); Restatement, Torts (1934), § 343, and New Jersey Annotations thereto.

The testimony on plaintiffs’ behalf indicated that the vestibule stairs had been dirtied and littered with foreign substances at and prior to 11 p. m. ; there was near capacity attendance with patrons going in and out through the vestibule which was the only entrance to the premises; the condition of the stairs had worsened b}’' 1:30 a. m. when the plaintiffs were leaving; the vestibule had not been looked at by the defendant during the interval between the entry and departure of the plaintiffs and the stars had not been swept or cleaned since that Saturday morning. Considering the established time lapse of at least two and a half hours in the light of all of the other pertinent circumstances, we have concluded that the plaintiffs’ evidence, together with the inferences which might justifiably be drawn therefrom in their favor (Dobrow v. Hertz, 125 N. J. L. 347, 348 (E. & A. 1940)), presented an issue for the jury’s consideration as to whether the improper condition of the stairs had existed for sufficient time to have been discoverable and remediable, in the exercise of reasonable care, before the injury occurred. While they undoubtedly rest upon the particular facts there presented, decisions in other jurisdictions may be noted in which lesser time has been held, under somewhat analogous circumstances, to raise a factual question for determination by the jury. See Langley v. F. W. Woolwortk Co., 47 R. I. 165, 131 A. 194 (1925) ; White v. Mugar, 280 Mass. 73, 181 N. E. 725 (1932) ; Moore v. American Stores, 169 Md. 541, 182 A. 436 (1936); Stanfill v. Trading Post Co., 106 S. W. 2d 952 (Mo. Ct. of App. 1937). Cf. Wheeler v. Deutch, 242 App. Div. 641, 272 N. Y. S. 161 (1934), with Bravado v. Murray, 257 App. Div. 271, 12 N. Y. S. 2d 893 (1939); affirmed, 283 N. Y. 619, 28 N.E. 2d 29 (1940).

The judgment below is reversed, costs to abide the event of new trial.


text:
    HAROLD GINDIN, PLAINTIFF-APPELLANT, v. HERMAN BARON AND B. & B. PROVISION CO., A CORPORATION OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 10, 1951.

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

      Mr. Lewis Winelsky argued the cause for the appellant.

      Mr. Emanuel M. Ehrenkranz argued the cause for the respondents.
   The opinion of the court was delivered by

Jayne, J. A. D.

In this civil action the plaintiff alleged that on March 14, 1949, in a store designated as No. 411 Clinton Avenue in the City of Newark, the defendant David Stein committed a willful and malicious assault and battery upon him. There were two other defendants, Herman Baron and the B. & B. Provision Company, a body corporate. A slight revision of the issues at the pretrial conference suggested that the defendant Baron was individually trading under the name of B. & B. Provision Company and that the corporation of that title was “dormant” and not engaged in the pursuit of its authorized business. The alleged liability of Baron individually and of the corporate defendant was based upon the doctrine of respondeat superior.

Upon motion on behalf of the defendants, the alleged causes of action against Baron and the corporation were dismissed by the court. The jury announced a verdict in favor of the plaintiff against the defendant Stein with an award of $8,000 compensatory and $2,000 punitive damages. Judgment for $10,000 was entered accordingly in favor of the plaintiff against the defendant Stein and in favor of the other defendants.

By this appeal, the plaintiff-appellant challenges the propriety of the ruling of the trial judge in dismissing the action against the defendants Baron and the corporation, B. & B. Provision Company.

It is, of course, elementary that in passing upon a motion to direct a verdict and its present equivalent, just as in passing upon a motion for a nonsuit or for an involuntary dismissal, the evidence will not be weighed. The party against whom the motion is made is entitled to have all the evidence in his favor and all the legitimate inferences to be drawn therefrom treated as true. When fair-minded men may honestly differ as to the conclusion to be reached from that evidence, controverted or uncontroverted, the case must be submitted to the jury. Dobrow v. Hertz, 125 N. J. L. 347 (E. & A. 1940).

We have therefore examined the transcript in quest of the evidence and its permissive inferences which are favorable to the alleged causes of action of the plaintiff against one or both of those defendants who were absolved by the court from liability.

We may immediately state that the evidence against the corporate defendant was indubitably insufficient and the dismissal of the action against it will be affirmed.

The evidence in support of the alleged cause of action against the defendant Baron is more substantial. It was productive of several reasonably acceptable inferences.

The plaintiff was in the employ of Hebrew Kosher Provision Co. The defendant Stein was in the employ of the defendant Baron, trading as B. & B. Provision Company. Their respective employers were business competitors. The plaintiff and Stein were each performing for their respective employers the duties of a route salesman.

About two weeks prior to the occasion of the assault, Stein while operating the truck of his employer drew it alongside of the truck being driven by the plaintiff and said to the plaintiff : “If you don’t stay away from my customers I am going to knock your block off.” A week later the plaintiff in returning from Jersey City observed that Stein persisted in “trailing him,” until the plaintiff stopped at a police station.

It might be logically inferred that the hostility between the two was not occasioned by any strictly personal animosity but rather by the competitive enterprises of their employers in which the plaintiff and Stein were respectively engaged.

On March 14, 1949, the plaintiff visited the store of Mr. and Mrs. Eisman on Clinton Avenue in Newark and was there waiting for the preparation of his order. Stein arrived in front of the store in a passenger automobile, in which the defendant Baron was an occupant. Stein immediately entered the store and proceeded at once to attack the plaintiff. He was subdued and a police officer forthwith directed both Stein and the plaintiff to enter the automobile. Upon entering the vehicle, Baron remarked to his employee, Stein: “It is a good thing you gave him a good beating, he won’t bother our customers the next time,” and to the plaintiff, “Now, you will stay away from my customers.”

We contemplate the inferences that might have been legitimately deduced from those circumstances.

We conceive that the jury might have reasonably inferred from the remark of the employer Baron, so impulsively and spontaneously made, (1) that he had previous knowledge that the plaintiff was or was thought to be interfering with his customers; (2) that the object of Stein’s coincidental arrival at the Clinton Avenue store in a passenger automobile accompanied by his employer was to subject the plaintiff to such physical punishment as to deter the plaintiff from thereafter approaching or soliciting Baron’s customers; (3) that Baron was aware that the assault was perpetrated in the protection, if not promotion, of his own business interests; and (4) that consequently he commended his employee for his accomplishment and ratified his act.

In Grossbart v. Samuel, 65 N. J. L. 543 (Sup. Ct. 1900), the employer was present at the assault and enthusiastically encouraged his employee with the exclamation: “Give it to him, give it to him, so he will keep his mouth shut.” Cf. Wendelken v. New York, S. & W. R. Co., 88 N. J. L. 270 (E. & A. 1913). Here the employer, Baron, remained nearby and immediately proclaimed his commendation and approbation. In legal contemplation in such cases previous intent may be inferred from ratification. Haines v. Schultz, 50 N. J. L. 481 (Sup. Ct. 1888); Restatement, Agency, § 218, p. 480.

The primordial rule relative to the legal responsibility of the master for the willful tortious acts of the servant of this nature enunciated by Lord Kenyon in McManus v. Crickett,

1 Hast. 106, made the master’s liability depend predominantly upon the moral quality of the act. That rule was abandoned both in England and in this country many years ago. The rule has been progressively enlarged until it may now be stated in accord with the prevailing authorities that the liability of the master for the willful and malicious tortious acts of the servant at present extends to every case where the act of the servant is committed with a view to the furtherance and discharge of his master’s business and within the scope and limits of his employment. Holler v. P. Sanford Ross, 68 N. J. L. 324 (E. & A. 1902); Moore v. Camden and Trenton Railway Co., 74 N. J. L. 498 (E. & A. 1907); Smith v. Bosco, 126 N. J. L. 452 (E. & A. 1941).

In many cases the courts have ascribed significance to the motive of the servant. In the present case the jury might with reason have inferred that the sole motive activating Stein to commit the assault was to serve the welfare of his employer’s business and his act in doing so was expressly ratified by his employer with the expectation of deriving from it an advantageous consequence in the pursuit of his business. 2 Am. Jur. 279, Agency, § 360.

Where the existence and scope of implied authority of an employee or the ratification of his act by the employer are disputed questions of fact, they are ordinarily issues for the determination of the jury, except where the employee’s departure from the master’s business is of a marked and decided character. Cleaves v. Yeskel, 102 N. J. L. 621 (E. & A. 1926) ; Smith v. Bosco, supra.

The judgment in favor of the corporate defendant, 13. & B. Provision Company, is affirmed. The judgment in favor of the defendant Baron is reversed and the cause of action against him returned to the Law Division for a trial de novo. Ferry v. Settle, 7 N. J. Super. 253 (App. Div. 1950).


author: Rogers, J. A. D.

text:
    JOHN P. CONDON, Jr., PLAINTIFF-APPELLANT, v. EDITH MORAN, EXECUTRIX AND TRUSTEE OF THE ESTATE OF JEAN F. CONDON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided January 10, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Frank F. Marano argued the cause for the plaintiff-appellant.

      Mr. Leslie S. Kohn argued the cause for the defendant-respondent (Mr. James W. Gillespie, attorney).
   The opinion of the court was delivered by

Rogers, J. A. D.

This action was instituted in the Superior Court, Chancery Division, to compel Jean E. Condon to account to plaintiff for her conduct of their partnership enterprise. Jean F. Condon died soon after the suit was commenced and the representative of her estate was substituted as defendant. By counterclaim, defendant sought recovery for the value of the partnership use of premises owned by the deceased partner, for advances to the partnership made by her for plaintiff’s benefit, for rent collected by plaintiff for his partner’s account, and for the reasonable value of board, rooms and garage furnished plaintiff by his partner.

The amounts of the gross income and the expenses of the business and the withdrawals made by each partner were stipulated at the hearing; and therefrom it appeared that the deceased partner had withdrawn substantially more than her share of the profit. The learned trial judge sustained the major portion of the counterclaim. The resulting judgment was entered for plaintiff and represented the excess of decedent’s liability to plaintiff upon the partnership accounting over the recovery from plaintiff upon the counterclaim. The appeal is from this judgment on the counterclaim exclusive of the sums awarded for plaintiff’s use and occupation of the apartment and the business premises after the termination of the partnership which were conceded.

Plaintiff’s suit was pleaded and tried upon the theory that by express contract, decedent furnished as her contribution to the operation of the partnership the use of the first floor and garage of her property as well as plaintiff’s board and room, and that plaintiff furnished his full time in the business. The pretrial order stated that the issue, under the complaint, was based upon this agreement between the parties. Plaintiff also pleaded this agreement as a defense to the counterclaim for rentals and board.

The only testimony offered by plaintiff was his own and his sister’s. The defendant submitted no witnesses. This evidence does not establish that any such agreement was made by defendant’s decedent with plaintiff to contribute to the operation of the partnership. The sister’s testimony did not establish what the partnership agreement was, and plaintiff was not permitted to testify over objections to any transactions with or statements by the decedent. B. 8. 2:97-2. In this posture of the evidence the trial judge properly held that plaintiff had not sustained the burden of proof of decedent’s alleged agreement.

Plaintiff further contends that the court erred in ruling that in the circumstances there was an implied promise by the partnership to pay rent to the deceased partner for the premises occupied by the business and by plaintiff to pay her for his board, room and garage rent. It is urged that such promises are not implied because though plaintiff gave his full time to the partnership decedent rendered but trifling service, and that the fact that the records showed no payment of rent or board to decedent implies such were her contributions to offset plaintiff’s full-time services. It is argued that otherwise the decedent obtained more from her equal interest in the partnership than plaintiff because he received no compensation for his services. But this overlooks the rule of law that a partner is bound to give his time to the management of the partnership and is entitled to no special compensation for such services unless there is an agreement therefor. A partner’s compensation for partnership service in the absence of agreement otherwise is his share of the profits. 40 Am. Jur., pp. 208, 213; 68 C. J. S., p. 531. Furthermore, on the merits of this point, there is evidence that decedent managed the partnership in plaintiff’s absence in the military service for almost the entire first year of the business, and that, thereafter, she kept the books, answered the telephone and cleaned the business premises so long as she was able. Probably the partner’s services were not of equal value but that has no material bearing upon whether there was an implied contract to pay decedent rent, board, etc., as claimed. 68 C. J. S., p. 532. Such inequality of service as there may have been was a matter for adjustment between the partners and the evidence is silent in this regard. The judge correctly found there was an implied contract for rent to be paid decedent by the partnership for the use of her premises, and likewise for rent to be paid by plaintiff for his use of the premises after dissolution of the partnership, and for his room and garage, and for his board. Chambers v. Ross, 25 N. J. L. 293 (Sup. Ct. 1855); Conover v. Conover, I N. J. Eq. 403 (Ch. 1831); 21 A. L. R. 50, note 4.

One of the counts in the counterclaim sought recovery of $240 rental collected by plaintiff for decedent. There was error in entering judgment for eounterelaimant for the whole of this item because plaintiff’s unrefuted testimony was that he deposited this rent in the partnership account. Thereby defendant’s decedent received the benefit of one-half of this sum. The award as to this item is modified accordingly, thus enlarging the judgment for plaintiff by $120. Except as so modified the judgment is affirmed but without costs to either party.


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

text:
    JOHN VOLKER, Jr., PLAINTIFF-APPELLANT, v. THE CONNECTICUT FIRE INSURANCE COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 17, 1951.

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

      Mr. Oscar F. Laurie argued the cause for plaintiff-appellant.

      Mr. Ralph Porzio argued the cause for defendant-respondent (Mr. Edward F. Broderick, attorney)
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The defendant’s motion for involuntary dismissal, made at the end of the plaintiff’s case, was granted in the Superior Court, Law Division, and the plaintiff appeals from the judgment entered thereon.

The plaintiff’s suit was on an insurance policy dated February 9, 1949, to recover for the loss of his yacht which exploded and sank while being operated on April 9, 1949. The insurance company set up as a separate defense the breach of the warranty contained in the policy, which reads: “Warranted by the Assured that the within named Yacht shall be laid up and out of commission from Nov. 1st, at noon, until May 1st, at noon.” In his amended reply the plaintiff alleged that the only warranties made by him were those contained in the application for insurance dated February 2, 1949, and demanded that the policy “be reformed to make it conform to the representations of facts made by the plaintiff,” and further alleged that the defendant had waived the warranty contained in the policy. The pretrial order permitted the plaintiff to further amend his reply to allege that “the warranty in the policy of insurance is not the warranty agreed to between the parties and that the warranty by the assured was different from that contained in the policy.” At the pretrial conference, the judge marked for identification the plaintiff’s written application to the defendant for insurance on the boat, made February 4, 1949, but dated February 2, 1949, and the defendant’s policy dated February 9, 1949, and in the order the parties agreed that both “may be received in evidence.” Apparently the defendant made no effort to elicit a clearer statement of the ground upon which the plaintiff sought reformation.

At the opening of the trial the plaintiff attempted to introduce evidence on the issue of reformation of the policy provision concerning the “lay-up and out of commission” period, but the defendant objected on the ground that there was no allegation of fraud, misrepresentation or mistake. The plaintiff made clear to the court that his reply was intended to claim the equitable relief of reformation on the ground of mistake. There was no suggestion that the defendant was surprised. The court below sustained defendant’s objection and refused to consider the plaintiff’s equitable claim, holding that no such claim was properly pleaded because of the failure of the pleadings to actually allege mistake as a ground for the relief. The trial then proceeded on the legal issues. At the end of the plaintiff’s case the court granted the defendant’s motion for involuntary dismissal on the ground that the “lay-up and out of commission” period of November 1st at noon to May 1st at noon, as set forth in the policy, controlled and under it the plaintiff failed to make out a prima jade case.

On the trial of the legal issues it appeared that on or about February 2, 1949, the plaintiff, who had purchased a yacht located at Forked River, New Jersey, consulted Fred W. Kemp, a general agent for the defendant insurance company, for the purpose of obtaining insurance on this yacht. Kemp, who had no experience in yacht insurance, called up the defendant’s New York office, in the presence of plaintiff, and “got all the details, the terms and limits” of the defendant’s policy. The plaintiff was required to answer certain questions, including the amount of insurance, the kind of boat, its length, value and contents, and the “lay-up and out of commission” period. This period was a six-month period during which the boat must be laid up and out of commission. The “lay-up and out of commission” period discussed was from October 1st to April 1st. Based upon the answers given to the questions over the telephone, the defendant agreed to insure the yacht as of February 2nd for a stated premium, and further gave the plaintiff permission to move the boat from Forked River to his mooring place in Manasquan during the lay-up period. Thereupon, the plaintiff paid the premium to Kemp.

On February 4th Kemp received an application form from the defendant and in the plaintiff’s presence he typed on this form the answers to the questions as given by the plaintiff, and pursuant to the instructions of the defendant dated the application February 2nd, which was the day the binder was put on the boat. The following questions and answers appear on this application form: “During what months is it laid up? Oct. to April. Where? Manasquan, N. J.” Kemp returned the completed application form to the New York office of the defendant. The defendant issued its policy dated Eebruary 9th and forwarded it to Kemp, who received it on either Eebruary 10th or Eebruary 11th.

The plaintiff moved the' boat from Eorked River to Manasquan, as permitted by the defendant. On April 9, 1949, the plaintiff operated the yacht from its mooring place in Manasquan to a dock about a half-mile away to “gas up” and as he was “pulling away” from this dock the yacht exploded, burned and sank. The parties stipulated that the yacht was totally destroyed and that the extent of the damage was the limit of the policy.

The plaintiff argues that the court below erred in refusing to consider the question of reformation of the policy on the ground of mistake.

If this issue of equitable relief by way of reformation was properly before the court, the issue should have been decided by the court alone, even though other issues were involved in the case which were triable as of right by a jury. Buie 3 :39-3. Subject to rules, the Law Division and the Chancery Division each exercise the powers and functions of the other division, when the ends of justice so require, and each division is required to 'grant both legal and equitable relief in any cause so as to completely determine all matters in controversy. Article VI, Section III, paragraph 4 of the Constitution. Cf. O’Neill v. Vreeland, 6 N. J. 158 (1951).

“The flexibility and seeming informality of pleadings under the new Rules should not deceive one into believing that the essentials of sound pleading at law or in equity have been abandoned. Quite the contrary; the objective of reaching an issue of law or of fact in two or at the most three simple pleadings has been attained, but not at the sacrifice . of stating the elements of a claim or of a defense.” Grobart v. Society for Establishing Useful Mfrs., 2 N. J. 136, 150 (1949). Compliance with the requirement that the elements of a claim or of a defense must be stated in the pleading is particularly important when an equitable claim or defense is to be pleaded in an action in the Law Division. Before proceeding with the trial, the court must be put on notice by the pleadings and pretrial order that an equitable claim or defense is involved, because in such case Buie 3:39-2 comes into play, under which the court alone is required to decide all issues of fact not triable by a jury and to determine the sequence in which the equitable and legal issues shall be tried.

While the essential elements of the plaintiff’s equitable claim for reformation should have been more clearly stated in the pleadings (cf. Civil Procedure Form No. 25 appended to our Buies), or at least in the pretrial order, we think the court was sufficiently apprised at the outset of the trial of the essential elements of the plaintiff’s equitable claim by the pleadings, pretrial order and the colloquy between court and counsel. Dnder the circumstances of this case, we conclude that the court below erred in refusing to consider the equitable issue.

The judgment is reversed and new trial granted in the Law Division. Cf. O’Neill v. Vreeland, above.