text:
    Samuel E. Young v. Bettie Young.
    [Decided November 20th, 1922.]
    1. A husband is not entitled to a divorce on the ground of adultery committed by his wife after she has become entitled to a divorce from him on the ground of his desertion.
    2. In a divorce action recrimination is generally considered as a defence which must be pleaded to be considered by the court, but such rule does not apply where the petitioner in putting in his case shows his own guilt, in which event the court may deny the relief prayed for although recrimination is not pleaded.
    3. A husband’s desertion may be willful, continued and obstinate for a period of more than two years, notwithstanding the fact that he contributed to the wife’s support after deserting her, and she accepted such contributions.
    On appeal from a decree in chancery.

      Mr. Patrick H. Harding, for the appellant.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

Samuel E. Young, the appellant, filed his petition in the court of chancery, praying a divorce from his wife, the defendant, upon the ground that “during the years 1919 and 1920, and up to and including the 24th day of August, 1920, she committed adultery with one Curtis Allen at Detroit, in the State of Michigan.” No defence was interposed by the wife and the case was heard ex parte upon the petition and proofs. The evidence disclosed that the petitioner and his wife were married in April, 1910, and that they lived together thereafter in' apparent harmony until October, 1917. The petitioner testified that in that month

“I left my wife for the reason that she was not doing right by me. We had a quarrel over the fact that I was taken ill from eating meat which she cooked. I have not lived with my wife any time since October, 1917, and have had no sexual relations with her since that time.”

He further testified that, although he had left his wife and had never returned to her, he continued to support her until March, 1920.

To sustain the charge of adultery laid against the wife in the petition, testimony was taken which justified the conclusion that she was living with the co-respondent, Allen, as his wife, in the city of Detroit, as early as August, 1920, and that she continued to live with him thereafter until August, 1921. No attempt was made to support -the averment that she had committed adultery at any time during the year 1919.

It is evident from the testimony of the petitioner himself that in October, 1917, he deserted his wife without justifiable cause; for it never has been suggested, so far as I know, that dissatisfaction upon the part of the husband with his wife’s cooking justifies him in permanently deserting her,, even if on one occasion he is made ill from eating food she has prepared. His own testimony also shows not only that he deserted his wife without justifiable -cause, but that the desertion was willful, continued and obstinate for a period of more than two years before the commission of the matrimonial offence by the wife which was charged and proved against her. The question presented for solution, therefore, is whether a husband, whose wife is entitled to an absolute divorce from him, can succeed, in obtaining a divorce from her for a matrimonial offence committed by her after her right to a divorce from him has matured and become fixed.

It was held by the court of chancery, in the case of Rapp v. Rapp, 67 N. J. Eq. 236, that desertion by a husband which has existed during the period fixed by the statute as ground for an absolute divorce is a bar to a divorce against rhe wife for subsequent adultery; and the authorities cited in the opinion fully support the proposition laid down.

As a general rule, however, it is considered that recrimination is a defence which must be pleaded in order to justify the court in considering it; and that, in the absence of an answer setting it up, the court will not permit the defendant to prove it in bar of the petitioner’s action. Jones v. Jones, 18 N. J. Eq. 33. But this rule is not universal in its application. One of the exceptions to it is that the relief prayed for by the petitioner will not be granted, notwithstanding that recrimination is not set úp as a defence, if he, iii putting in his case, shows his own guilt. Jones v. Jones, supra; Rapp v. Rapp, supra. And for this' reason a divorce was refused in the latter case. The ground for this exception generally given is that when the complainant himself shows that he is in pari delicto and does not come into court with clean hands, a court of justice will not grant him the relief to which he would otherwise be entitled. The eases cited by Vice-Chancellor Eeed in the Rapp Case entirely justify the rule there laid down; and it seems to us to be sound in reason as well.

It is suggested that the fact of the husband’s contributing to the wife’s support after he had left her, and for more than two years thereafter, and the wife’s acceptance of such support, negative the idea that his desertion was willful, continued and obstinate within the meaning of the statute. But our cases are to the contrary. It was held by this court in Power v. Power, 66 N. J. Eq. 320, that a husband may be guilty of the matrimonial offence of desertion, notwithstanding the fact of such contribution after separating himself from his wife without lawful excuse. And this doctrine was reaffirmed by us in the late case of Whittle, Trustee, v. Schlemm, 94 N. J. Law 112, in an opinion delivered by the present chancellor.

The refusal by the advisory master to advise a decree in favor of the petitioner in the present case was based upon the doctrine herein exploited, and, for the reasons given, the decree appealed from should be affirmed.

For affirmance — The Chiee-Justice, Swayze, Trench ard, Parker, Bergen, Minturn, Kalis ch, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskirk—13.

For reversal—Black—1.


source: Caselaw Access Project

author: Swayze, J.

license: Public Domain

text:
    Henry J. Hunt, appellant, v. Edward I. Ludwig et al., respondents.
    [Decided November 20th, 1922.]
    1. Compliance with the requirement of the Chattel Mortgage act that a chattel mortgage shall be accompanied by an affidavit stating the consideration of the mortgage, and as nearly as possible the amount due and to grow’due thereon, is essential to the validity of the mortgage, and an affidavit which overstates the real consideration is not a compliance with the act, even though the error is unintentional and results from a mistake of a clerk.
    2. Where in a suit to foreclose a chattel mortgage, a receiver appointed on behalf of the complainant sold the chattels, and the mortgage was afterwards adjudged invalid, it was error to dismiss the bill and in the same decree order a’ disposal of the proceeds of the sale, as the decree depended upon the validity of the foreclosure proceedings. Such -error is however only an inadvertence and may be corrected.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, and reported in 98 N. J. Eq. 814-

      Messrs. Lehlbach & Van Duyne, for the appellant.

      Mr. Herman Krohn, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

This is a bill to foreclose a chattel mortgage.. The defendants are mortgagors and judgment creditors. The chattel mortgage was dated January 8th, 1921; one of the judgments was recovered in November, 1911, and the others January 24th and August 8th, 1921. The question is the validity of the chattel mortgage as against the judgment creditors. The mortgagee’s affidavit states that the consideration was $3,580. It is conceded that, this was untrue, and it is said to be a mistake of the clerk who included the amount of another mortgage of $500. The act requires that the chattel mortgage have annexed thereto an affidavit or affirmation made and subscribed by the holder of the mortgage, his agent or attorney, stating the consideration of the mortgage and as nearly as possible the amount due and to grow due thereon. Most of the cases have involved defects in stating the consideration. This case is unusual, in that, the affidavit contains an untrue statement of the consideration. We do not see how that fact can be overlooked. The case is much stronger than the case of Bollschweiler v. Packer House Hotel, 83 N. J. Eq. 459; affirmed, 84 N. J. Eq. 502. Clearly, an affidavit which overstates the real consideration cannot be treated as stating the consideration and as nearly as possible the amount, due and to grow due thereon, nor do we see on what legal basis the affiant can be excused because he has trusted to someone else to ascertain the amount due. He himself is responsible for the statement he swears to. He might better state no consideration at all than to state it ■untruly. We are not called on to deal with his moral guilt, but with his failure to comply with the statutory requirement.

There is however an error in the decree. The bill prays foreclosure and a- counter-claim was filed. A receiver appointed by the court in behalf of the complainant sold the chattels and the court now undertakes by this decree to dispose of the proceeds of sale. It depends, therefore, for its action upon the validity of the foreclosure proceedings. They are the very basis on which the decision of the court rests, and there cannot, therefore, be a dismissal of the bill. This, however, is only an inadvertence and may be corrected. Receiver of the Graham Button Co. v. Spielmann, 50 N. J. Eq. 120.

For affirmance — The Chibe-Justice, Swayze, Trenchard, Parkee, Minturn, Black, Katzenbach—7.

For reversal—Bergen, White, Williams, Ackerson, Van Buskirk—5.


author: Trenchard, J.

text:
    Josie G. Cavileer, complainant-respondent, v. Walter K. Cavileer, defendant-appellant.
    [Submitted July 10th, 1922.
    Decided November 20th, 1922.]
    1. The conditions (other than adultery) which will justify a husband in separating himself from, his wife, and refusing her support and maintenance, are those which our Divorce act (Oomp. Stat. p. 2021) has provided as a sufficient cause for the court to grant to the husband a divorce from bed and board, namely, extreme cruelty upon the part of the wife. And when a husband separates himself from his wife, and she claims suitable support and maintenance under section 26 of the Divorce act, he must justify that separation by proof of extreme cruelty upon the part of his. wife to the same extent as he would be compelled to prove if he were suing for a divorce from bed and board on the ground of extreme cruelty.

      2. “Extreme cruelty,” as used in our Divorce act (Comp. Btat. p. 2021), is such cruel conduct as endangers the safety of the person or the health of the aggrieved party, either actually inflicted or reasonably apprehended.
    3. A single act of personal violence upon the part of a wife against her husband is not extreme cruelty justifying abandonment of, and refusal to support, the wife, where the injury was slight, and the act was committed under circumstances which do not furnish any reasonable apprehension that the continuance of cohabitation would be attended with further personal injury.
    4. Physical injury inflicted upon the 'husband by the brother of his wife, not countenanced by her, is not extreme cruelty justifying the husband in separating from his wife and refusing her support and maintenance, especially where the circumstances do not show any reasonable apprehension that the continuance of cohabitation with the wife would result in further injury.
    5. In a proceeding by the wife for support and maintenance under the statute, the court may look at the attitude and conduct of the husband towards the wife since the commencement of the suit, for the purpose of giving character to the act of the husband in separating himself from his wife.
    On appeal from a decree of the court of chancery advised by Yiee-Chancellor Learning.

      Messrs. Bourgeois & Coulomb, for the appellant.

      Messrs. Cole & Gole, for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

Josie G-. Cavileer filed the bill in this case against her husband, Walter K. Cavileer, to obtain suitable support and maintenance under the statute:

The chancellor made a decree in her favor and the husband appealed.

We are of the opinion that the decree should not be disturbed.

Section 26 of our Divorce act (Comp. Stat. p. 2038) declares that

“In case a husband, without any justifiable cause, shall abandon his wife or separate himself from her, and refuse or neglect to maintain and provide for her, it shall be lawful for the court of chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and her children, or any of them, by that marriage, or to be made out of his property, and for-such time as the nature of the case and the circumstances of the pai’ties render suitable and proper in the opinion of the court.”

In the instant case it appeared that the husband separated himself from his wife and refused or neglected to maintain and provide for her; and the only question argued on this appeal is whether the husband’s conduct, in that respect, was “without any justifiable cause.”

The husband contends that his abandonment and refusal to support his wife was justified by an assault made upon him by her and her brother.

The statute in question was construed in Taylor v. Taylor, 73 N. J. Eq. 745 (in this court), it being held that a wife, to justify her desertion of the husband, so as to bring her within the statute (adultery not being alleged), must prove such extreme cruelty on the part of the husband as would entitle her to a divorce from bed and board on the ground of extreme cruelty, were she suing therefor, and that a failure to so justify her desertion precluded recovery of separate maintenance under the statute. And, conversely, it was held in Bradbury v. Bradbury (Court of Chancery), 74 Atl. Rep. 150, that the conduct of the wife, which would render abandonment of her husband justifiable under the statute, must be such a matrimonial offence on her part as would entitle the husband to a divorce. In White v. White, 87 N. J. Eq. 354 (in this court), it was said that “a justifiable cause, which will relieve the husband from his legal obligation to maintain and provide for his wife, is a cause which he has not helped to create,” such as adultery of the wife, “free from legal guilt or connivance on his part.” And in Whittle v. Schlemm, 94 N. J. Law 112, the chancellor, speaking for this court, remarked that “it may well be that the adultery of the wife is a good defence in a proceeding brought under this section.” But that question was not there involved and was not decided. There, the question was as to the right of a wife, while living separate from her husband, to secure funds provided for her support in a separation agreement, which right it was held persists even after the commission of an act of adultery by her, unless there is an express stipulation and limitation in the agreement that payment shall cease in the event that she becomes unchaste.

We deem the true rule to be that the conditions (other than adultery) which will justify the husband in separating himself from his wife, and refusing her support and maintenance, are those which our Divorce act has provided as a sufficient cause for the court to grant to the husband a divorce from bed and board, namely, extreme cruelty upon the part of the wife. This is necessarily so, for a husband cannot be justified in abandoning his wife and neglecting to support her for causes which will not justify the court in granting him a divorce. It follows, therefore, that when the husband, as in this ease, separates himself from his wife, and she claims suitable support and maintenance under the statute, he must justify that separation by proof of extreme cruelty upon the part of his wife to the same extent as he would be compelled to prove if he were suing for a divorce from bed and board on the ground of extreme cruelty.'

“Extreme cruelty,” as used in our Divorce act, is such cruel conduct as endangers the safety of the person or the health of the aggrieved party, either actually inflicted or reasonably apprehended. Smith v. Smith, 40 N. J. Eq. 566; Taylor v. Taylor, 73 N. J. Eq. 745.

We now proceed to examine the evidence respecting the facts and circumstances culminating in the assault which the defendant contends amounted to extreme cruelty, justifying his desertion of his wife.

Mr., and Mrs. Cavileer were married in 1906, and lived happily together for many years. He was in the real estate and insurance business, and she assisted him therein and loaned him her own money from time to time. In 1919 friction arose between them because he had used her funds for investment or speculation in the stock market and refused, upon her request, to make to her a satisfactory statement of their financial affairs. She thereupon refused to join in conveyances of real estate, standing in his name, and this led to further discord. This continued into- the summer of 1920, when the parties were living in a house owned by the husband, in Atlantic City. In this posture of affairs, and on August 18th, 1920, Mr. Cavileer came home, about midnight, more or less intoxicated. He had been drinking whiskey freely during the afternoon and evening. He brought with him a man friend, an entire stranger to his wife. He also brought wih him a quart of whiskey. The wife heard them in the hall. He and his friend retired to his bedroom, taking the whiskey with them, and there they partook of some of it. The wife was displeased, and indeed bitterly resented such conduct. When Mr. Cavileer and his friend came downstairs in the morning Mr. Cavileer brough with him the bottle of whiskey, partly concealed “between his vest and shirt.” When Mrs. Cavileer saw this she tried strenuously to take the bottle from him, for the avowed purpose of preventing him from “taking the liquor out with him.” He resisted and she pushed him over on the couch and held him, at the same time reaching for the bottle. In that situation Mr. Cavileer called upon his friend to help him, and his friend took hold of Mrs. O'avileer’s wrists. She then called to her brother (a guest in the house, who was upstairs) to come and .help her. Her brother rushed downstairs and struck Mr. Cavileer with his fist, the “friend” meanwhile having retreated to the porch.

Thus far there is no substantial dispute in the evidence. Mr. Cavileer. says that while his wife had him down on the couch, trying to get the bottle, she scratched or hit his face. Even so, that single act of personal violence is not extreme cruelty, justifying abandonment of, and refusal to support, the wife, where, as here, the injury was slight and the act was committed under circumstances which do not furnish any reasonable apprehension that the continuance of cohabitation -would be attended with further personal injury. Cook v. Cook, 11 N. J. Eq. 195. In this connection it is to be observed that the act of the wife, of which the husband complains, may well be regarded as provoked by the inconsiderate conduct of the husband.

But the defendant further contends that the assault committed upon him by his wife’s brother justified him in leaving her without support and maintenance.

We think not. No doubt abuse by relatives of the other spouse, countenanced by such other spouse, may be, under some circumstances, extreme cruelty constituting ground for divorce (or separation). But that is not this case. It is true, as we have pointed out, that when Mrs. Cavileer called for help, her brother rushed downstairs and struck her husband with his fist. But the evidence, while conflicting, we think shows that this blow was not countenanced by Mrs. Cavileer. It shows to our satisfaction that she immediately told her brother to stop, saying that she called him to “protect her from the man on the porch,” not from her husband. It seems to show also that a few minutes later, when further trouble occurred at the garage, between her husband and his friend on the one hand, and her brother on the other hand, she stopped her brother from hitting her husband. Certainly she- did not countenance any assault upon her husband.

It may be that the conduct of the brother was more severe than the circumstances warranted. But physical injury inflicted upon the husband by the brother of the wife, not countenanced by her, is not extreme cruelty, justifying the ¡husband in separating himself from Ms wife, and refusing her support and maintenance, especially where, as here, the circumstances do not show any reasonable apprehension that the continuance of cohabitation with his wife would result in further injury. In this connection it is to be noted that prior to this trouble the brother was a welcome guest in the house, and he and the husband had been on friendly terms. Soon after the trouble the brother departed for his home in Pittsburg.

In such a proceeding as the present one it is always proper for the court to look at the attitude and conduct of the husband towards his wife since the commencement of the suit, for the purpose of giving character to the act of the husband in separating himself from his wife. Cook v. Cook, 11 N. J. Eq. 195. These and other circumstances in evidence indicate that the husband separated himself from her, not because he apprehended any personal injury from a continuance of cohabitation, but rather because he desired to free himself from her with or without legal cause. Prior to the trouble in August, 1920, he had notified tradesmen not to trust her. After the altercation he straightway established a residence in Philadelphia, apparently for the purpose of obtaining a divorce there. He never made any overtures for a reconciliation. When his wife approached him, as he admits, in a “very nice” way, for the purpose of reconciliation, he refused to speak with her. At the trial in the court below, while she expressed herself as willing to live with' him, he expressed himself as unwilling to return unless he could be assured that she would treat him “right,” and declined to accept her assurance on that point.

The decree below will be affirmed, with costs.

For affirmance—The Chief-Justice, Swayze, Teen-chard, Parkee, Bergen, Minturn, Kalis ch, Black, Katzenbach, White, Williams, Gardner, Ackerson, Yan Buskirk—14.

For reversal—Hone.


text:
    Wilhelmina Neubeck, complainant-appellant, v. William H. Neubeck, defendant-respondent.
    [Argued June 22d, 1922.
    Decided November 20th, 1922.]
    1. Where the title to lands rests in a husband and wife as tenants by the entirety, the wife holds in her possession during their joint lives one-half of the estate in common with her husband, and, as between themselves, the respective rights of the parties are those of tenants in common.
    2. Where the husband and wife own property as tenants by the entirety, the wife, even though she has deserted her husband without justifiable cause and is living in adultery, is entitled to- an accounting of the rents collected by her husband from the common property.
    8. Where the title to real estate rests in a husband and wife as tenants by the entirety, the wife is entitled to an accounting of the rents collected by her husband from the common property, even though the property was paid for by her husband out' of his own funds and her interest therein was a gift from her husband.
    4. The maxim, “He who comes into equity must come with clean hands,” does not repel all sinners from courts of equity, nor does it apply to every unconscientious act or inequitable conduct upon the part of the complainants. The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the complaining party states as his ground or cause of action j but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought.
    5. Where the wife left her husband and withdrew from the family domicile without justifiable cause, and is living in adultery, the husband is not required (there being no divorce) to' account to her for the rental value of the dwelling-house which was occupied as the family residence at the time of such desertion, and which is still occupied by the husband as his residence, even though the title thereto rests in the husband and wife as tenants by the entirety.
    6. The case of Black v. Black, 30 N. J. Eq. 215, explained and overruled in part, and the reported reversal thereof in 31 N. J. Eq. 798, explained.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan.

      Mr. Martin P. Devlin (Mr. John H. Kafes and Mr.¡ Charles J. Falcey on the brief), for the appellant.

      Mr. Edgar W. Hunt (Messrs. Iiabzenbach & Hunt on the brief), for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

On October 10th, 1919, Wilhelmina Ueubeck left her husband, William H. Eeubeck, and withdrew from the family domicile. On October 14th, 1920, she filed the bill in this case. By it she prays a decree directing her husband to account for the rents, issues and profits of six parcels of improved real estate in the city of Trenton (which were acquired after their marriage and the title to which stands in their joint names) and for the appointment of a receiver to collect the rents due and to become due.

Upon the hearing in the court of chancery the bill was dismissed, and the wife appeals.

We are of the opinion that the dismissal of the bill cannot be sustained.

It appeared that the accounting was sought not only with respect to the dwelling, formerly the family domicile, and still the domicile of the husband, but also with respect to five other properties which are in the possession of tenants and the rents of which are collected by the husband.

The learned vice-chancellor held that inasmuch as the complainant, as he found, had deserted her husband without justification, and was actually living in adultery at Pittsburgh with another man (which finding we think was justified), she was not entitled to come into a court of equity, in view of the doctrine of unclean hands.

But we think that doctrine has not the scope thus given it, for reasons which we will hereinafter state.

We think this case, in its legal aspects, is quite like, and is ruled by, O’Connell v. O’Connell, 117 Atl. Rep. 634 (decided in this court after the decision of the present case in the court below). We there declared that where, as here, the title to lands rests in a husband and wife as tenants by the entirety, the wife holds in her possession during their joint lives one-half of the estate in common with her husband, and that the respective rights of the parties as between themselves were those of tenants in common. We further held that where a husband and wife thus owned property as tenants in common the wife was entitled to an accounting of the rents collected by her husband from the common property, even though she had deserted her husband without justifiable cause, and had refused to return at the solicitation of her husband.

We think it follows therefrom that where (as here) the husband and wife own property as tenants by the entirety, the wife, even though she has deserted her husband without justifiable cause and is living in adultery, is entitled to an accounting of the rents and profits collected by her husband from the common property.

In the O’Connell Case we pointed out that the principle upon which the rule rests is that a tenant in common, in leasing the common property and in collecting the rents from the lessees, acts not only in his own right, but as the representative of his co-tenants, and that, consequently, to the extent that the moneys so collected represent the rental value of'the interest of his co-tenant, it is held in trust by him for their use.

It is suggested that the instant case differs from the O’Connell Case, for the reason that all of the purchase-money for the property was paid by the husband out of his earnings. But that, if true, is immaterial. Assuming that it was a gift by the husband 'to the wife, her title is as valid as if her interest was purchased out of her own funds. If the gift was conditional upon the wife being true to her marriage vows it may be that the court of chancery would set it aside uponi a proper case being made; but that is not this case. So long as the title stands she is entitled to have her rights enforced against her co-tenant.

The theory adopted by the vice-chancellor that the door of the court of chancery was closed to the wife under the doctrine of unclean hands is in effect disposed of by the O'Connell Case. The fact that the doctrine was not specifically mentioned therein makes no difference. The desertion by the wife was an outstanding fact upon which the decision turned. However, we now state the reasons why the doctrine has not the sweep accorded it by the vice-chancellor.

While the maxim “He who comes into equity must come with clean hands” has a very- wide application, it has also its limitations. It does not repel all sinners from courts of equity, nor does it apply to every unconscientious act or inequitable, conduct on the part of the complainants. The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the' complaining party states as his ground or cause of action; but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought. Pendleton v. Gondolf, 85 N. J. Eq. 308, and cases collected in 21 C. J. 182 and 10 R. C. L. 391. A recent illustration of the proper application of the doctrine is to be found in Prindiville v. Johnson & Higgins, 93 N. J. Eq. 425.

The vice-chancellor relied on Black v. Black, 30 N. J. Eq. 215, in the court of chancery. There the wife claimed rights in real and personal property standing in the name of the husband. 'The court of chancery' denied the wife equitable relief for the moneys she had expended upon her husband’s property because of her matrimonial misconduct, but granted her a money decree on three notes made to her by her husband for money lent. The report of a reversal in 31 N. J. Eq. 798, is somewhat misleading, as an inspection of the files discloses. The wife took no appeal. The husband appealed from the money decree and this court reversed as to two of the notes and affirmed the decree as to the other note, thereby granting the wife relief as to that right regardless of her misconduct. But the action of the court of chancery in the Black Case in applying the doctrine of unclean hands against the wife as to her claim against her husband’s property did not reach this court at all, so that decision has the force of a chancery decision only. While the case has been cited frequently on othey points, the doctrine of unclean hands as there applied against the wife has never been approved by this court. Certainly the doctrine has no application to the present case because there is no connection between the lawful acquisition of the property rights of the wife and her subsequent misconduct. The original acquisition by the wife of an interest by the entirety, and her later lapse from virtue, are two entirely separate matters, and, as we have pointed out, the unclean hands’ doctrine is applicable only to cases where the particular claim, is tied up to inequitable conduct as an element of its creation. That must be so. We have held that the wife does not forfeit her right to separate maintenance under an agreement, by later adultery, unless there be an express stipulation in the agreement that payment shall cease if the wife becomes unchaste. Whittle v. Schlemm, 94 N. J. Law 112. Why, then, say that her property lawfully and innocently acquired while living in chastity becomes in effect her husband’s if she sin? But the respondent argues that we are here concerned only with the wife’s standing in a court of equity, and not with her right or title in the property. Not so. On tiie contrary, as was pointed out in Lister v. Lister, 35 N. J. Eq. 49; affirmed, 3 N. J. Eq. 331, her right to the aid of equity depends entirely on the nature of her title, irrespective of the fact of her subsequent adultery.

Our conclusion therefore is that, since the wife is entitled to an accounting for the rents collected by her husband for the leased property, the bill was improperly dismissed.

But one of the properties in respect to which the wife asks an accounting was, at the time of the desertion by the wife, occupied as the family residence, and still is occupied by the husband and their infant son as their residence. As to that the wife, as matters now stand, is not entitled to an accounting.

In the O’Connell Case, supra, we held that the husband was not required to account for the rental value of the portion of the premises which he occupied as a residence, where the wife deserted her home without just cause, and had refused to return at the solicitation of her husband. We there pointed out that in order to render one co-tenant liable to another for the use and occupation of the jointly-owned premises there must be something more than a mere occupation thereof by the former and a forbearance to occupy by the latter. To hold him responsible to his co-tenant for the value of the use and occupation it must not only appear that the latter is out of possession, but that she is actually excluded from the enjoyment of her right of possession by her fellow-tenant.

In the present cast, as ’ we have seen, the -wife left her husband and withdrew from the family domicile voluntarily and without justifiable cause, and is living in. adultery, and we think that the husband is not required (there being no divorce) to account for the rental value of the dwelling-house which was occupied as the family residence at the time of such desertion, and which is still occupied as a residence by the husband and his infant son.

Neither party has asked for a divorce, and therefore we are not now concerned with the effect of an absolute divorce on the rights of the parties; but that subject has been considered in Buttlar v. Buttlar, 67 N. J. Eq. 136; affirmed, 67 N. J. Eq. 729, and in Sbarbaro v. Sbarbaro, 88 N. J. Eq. 101.

We have thus disposed of the right to an accounting. Wé express no opinion as to the necessity of the appointment of a receiver, since that question was not considered by the vice-chancellor, and has not been discussed at all by the otherwise thorough argument of counsel. That matter may be left for the determination of the court below as the situation develops.

The decree will be reversed, with costs, and the record remitted to the court of chancery for further proceedings therein in accordance with the view herein expressed.

For affirmance—None.

For reversal—The Chief-Justice, Swayze, Trenchaed, Parker, Bergen, Minturn, Black, White, Williams, Aokerson, Van Buskirk—11.


author: Kalisch, J.

text:
    Knickerbocker Hotel and Realty Company, complainant-respondent, v. Joseph F. Clabby, defendant-appellant.
    [Submitted June term, 1922.
    Decided November 20th, 1922.]
    A decree in equity dismissing a bill for the specific performance of a contract which provided that the decree should not in any way be operative or used as a bar to any suit at law that in the future might be brought by the complainant—Eeld, valid under the authority of such court to dismiss a bill for specific performance without prejudice to the petitioner’s right to sue at law on the contract.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. Thompson ,& Hmstein, for the appellant.

      Mr. Clarence L. Cole, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The vice-chancellor, after a final hearing, dismissed complainant’s bill of complaint, which was for specific performance of a contract for the sale of certain lands in Atlantic City, in which the appellant was vendor.

The respondent, the defendant below, bases his appeal upon the ground that he is aggrieved by an erroneous direction, in the decree dismissing the bill, as follows:

“And it is further ordered, adjudged and decreed that this decree shall not in any way be operative or used as a bar to any suit at law that in the future may be brought by the complainant.”

The power of the court to make such a direction in the decree is impugned by appellant’s counsel. They contend that the court is without power to make any such order and in support of their contention argue that the issue raised by the bill and answer was tried out on its merits by the court which had jurisdiction of the matter, and, therefore, its decree dismissing the bill was conclusive on the rights of the parties to the litigation and cannot be again litigated in any future action between the same parties.

While it is true, generally speaking, that a decree duly signed and enrolled may be pleaded in bar to any new bill for the same matter, no case can be found in the books which deny the power of the court of chancery to dismiss a bill without prejudice to the complainant to file a new bill or bring an action at law.

In 2 Dan. Ch. Pl. & Pr. (6th Am. ed.) 995, the learned author says:

“It is to be observed that although a decree of a dismissal of a bill for the specific performance of an agreement, or for the interference of the court in aid of legal rights, does not carry with it an implied injunction against a subsequent proceeding at law, it is the practice of the court to insert in the decree of dismissal of such a bill that it should be without prejudice to a subsequent proceeding at law; but whether it is introduced or not, the plaintiff, -after a bill of specific performance has been dismissed at the hearing, is still considered by the court of equity as at liberty to bring his action at law upon the contract, unless the court think proper specifically to restrain him by injunction from so doing.”

An examination of the English chancery cases fully support the learned author’s text.

In Woollam v. Hearn, 7 Ves. 211b, 222, in a suit for specific performance, after a hearing on the merits, the bill was dismissed without costs and without prejudice to the filing of another bill.

In Lindsay v. Lynch, 2 Sch. &. Lef. 12, also a case for specific performance, Lord-'Chancellor Eedjesdale decreed: “Let the plaintiff's bill be dismissed without prejudice to any bill which the plaintiff may hereafter be advised to file for obtaining a lease for his own life of the premises' in the pleadings mentioned."

Stevens v. Guppy, 3 Russ. 171, another case for specific performance, in dismissing the bill, Lord-Chancellor Lyndhurst (at pp. 185, 186) said: “Lord Eldon, when the case was before him, stated that if he dismissed the bill, he should think it proper to add, as a qualification to the decree, that the dismissal should be without prejudice to any suit or proceeding, which Stevens might think fit to institute, for the purpose, of recovering compensation for any injury or loss which he might have sustained by the acts of the defendant. This has been done in several cases and an instance of it occurs in Lindsay v. Lynch. I shall take that course and shall modify the. decree by a similar qualification."

Erom the cases cited it appears that this has been the accepted general practice in England for more than a century, and still persists. It is not to be marveled at that the practice referred to has become firmly imbedded in equity jurisprudence, for it is most salutary in its operation, in that it prevents obstructions to the attainment of justice.

Turning to the reported decisions of the equity courts of this' state, while an examination of them fails to disclose any case in which the power of the court to make such a qualification in the decree, as was made in the present ease, was ever drawn into question, the absence of any such reported case is potential as favoring the view that the English equity practice was acquiesced in and followed.

But we find numerous decisions in our equity reports which, impliedly, fully recognize the power of a court of equity to dismiss a- bill of complaint with a qualification as was made by the learned vice-chancellor in the case sub judie e.

In Stoutenburgh v. Tompkins, 9 N. J. Eq. 332, a case where a bill for specific performance was dismissed because the contract sought to be enforced was considered an unconscionable one, the learned chancellor (at p. 335) cites with approval what was said by Mr. Justice Thompson in King v. Hamilton, 4 Pet. 311, and which is as follows: “A court will not decree specific performance, where it would be inequitable, under all the circumstances of the case. The power of a court of chancery to enforce a specific execution of a contract is a very valuable and important one; but it is to be exercised under the sound discretion of the court, with an eye to the substantial justice of the case. When a contract is hard and destitute of all equity, the court will leave parties to their remedy at law.” And so it was held in Brewer v. Wilson, 17 N. J. Eq. 180, that equity will not decree specific performance of a contract where it is reasonably doubtful whether the contract- was finally concluded, but will leave the parties- to their remedy at law. This court, in Crane v. De Camp, 21 N. J. Eq. 414 (at p. 418), enunciates the general rule thus: “There is no rule in equity more clearly established than that upon an application for a specific performance of a contract, the court must be satisfied that the claim is fair, reasonable and just, and the contract equal in all its parts. If these points are not established by the complainant he will be left to his remedy at law.” To the same effect is Worth v. Watts, 76 N. J. Eq. 299, Mr. Justice Parker speaking for this court (on p. 304).

Manifestly, the equitable rule under discussion would be of no practical or beneficial value unless it could be put into effective operation. The court was clothed with the power to dismiss the bill and to leave the parties to their remedy at law. This power the court exercised in the present case. The fact that the order of the decree, substantially, states at length the legal effect that the' order dismissing the bill shall have, does not afford any ground for a successful attack upon the validity of the order.

The form of the order is of no material consequence so long as it does not encroach upon any legal or equitable right, and we think it does not, and, moreover, it finds support in what' was said by Lord-Chancellor Lyndhurst in Stevens v. Guppy, supra.

The order contained in the decree is affirmed, with costs, to the respondent on this appeal.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskirk—14.

For reversal—Kone.


author: Black, J.

text:
    Theodore Barthen and Meyer & Brown, Inc., a creditor, complainants-appellants, v. Lodi Corporations and James A. Van Valen, receiver, defendants-respondents.
    [Argued July 3d, 1922.
    Decided November 20th, 1922.]
    1. A decree of insolvency against a corporation and the appointment of a statutory receiver with power to continue the business does not work a rescission of its contracts. It does not, ipso faeto, constitute an anticipatory breach of its contracts. The corporation continues to exist until its dissolution is effected either by surrender or judicial decision.

      2. There is no fixed and inflexible rule by which to ascertain the time when a breach of an executory contract occurs for the sale of goods by a corporation, which has been adjudged insolvent, and a statutory receiver appointed with power to continue the business. Each case must be determined largely upon the facts presented, depending upon the attitude of the receiver.
    3. The evidence in this case justifies the application of the rule, that the measure of damages for the breach of an executory contract for the sale of goods, by an insolvent corporation in the hands of a receiver, is the difference between the contract and market price of the goods, at the time and place of delivery, as fixed by the contract. If Comp. Stat. p. 1/662 ¶ 61/ {2) (3).
    On appeal, &c.

      Messrs. Meyer .<& Brown, Inc., Messrs. Stein, Stein & Ilannoch, for the appellants.

      Messrs. Morrison, Lloyd & Morrisson, for the respondents.
   The opinion of the court was delivered by

Black, J.

The precise and only question involved on this appeal is to ascertain the amount of damages for the breach of an executory contract by a corporation, after it has been found insolvent and a statutory receiver has been appointed. The appellant contends there is no fixed and inflexible rule to be applied by which to ascertain the time of the breach of such contract, but each case must be decided upon its own facts, as to whether the receiver wishes to accept the benefits of the contract or to cancel it, and so acts. ITo case has been cited, and our own research has revealed no case in our courts deciding the precise point under discussion.

The court of chancery allowed damages as of October 4th, 1920, the date on which the receiver was appointed, amounting to $5,040, adding thereto the amount of damages fixed by the receiver, occurring prior to his appointment, amounting to $1,568, a total of $6,608. The appellant now claims that an additional allowance of $1,120 should be made, making a total damage of $7,728. The result thus reached is ascertained by applying the well-established rule, that the measure of damages for the breach of a contract for the sale of goods, such as is involved in this case, is the difference between the contract and market price of the goods (rubber) at the time and place of delivery as fixed by the contract. This equals $7,728 and not $6,608. The learned vice-chancellor who advised a decree in the case based his conclusions upon the facts—first, the appointment of a receiver and notice of such appointment to the creditor. This may be conceded; second, the creditor had been informed by the receiver that he did not intend to carry out the contract beyond the amount allowed on the claim. This latter finding of fact, it is contended, on this appeal is not warranted by the evidence in the record. Our reading of the record justifies this contention. Some of the essential facts are:

The receiver was appointed by the court of chancery on the return day of the rule, October 4th, 1920. The corporation was not restrained from exercising its franchises. The receiver was authorized and empowered to conduct and to continue the business and fulfill the contracts for two weeks from that date. On October 18th, 1920, the receiver was made permanent. On the same day the receiver was authorized, empowered and directed to continue the operation of the plant until November 1st, 1920, and so on, by the further order of the court until November 29th, on which date the receiver was authorized to sell the assets pursuant to a plan of reorganization. The assets were then sold and delivered to the purchaser.

The contract between the parties out of which this controversy arose was dated about June 4th, 1919. It provided for the delivery by the appellant of sixty tons of rubber, in equal monthly quantities of five tons each, through the year 1920, at thirty-two cents per pound; “each month’s arrival and on delivery of five tons to stand as a separate contract.”

On September 24th, 1920, the company neglected and refused to accept the September delivery; the appellant resold the rubber for eighteen cents. It was this difference for which the receiver allowed $1,568.

During the receiver’s possession and operation correspondence ensued between the parties, which is a part of the stipulation of facts to be used on the appeal; but we are unable to find in the correspondence or in the record any express statement by the receiver to the effect, that he. did. not consider himself obligated by the contract, or that he released the appellant from its obligation to deliver. This left the appellant in the position of compelling it to hold itself in readiness to perform, should it be requested so to do, by the receiver. As late as November 26th, 1920, the receiver, through his attorney, refused to take a delivery of the November installment and in a letter said, “I will write you later as to the December installment.” So, we think the correspondence between the parties does not justify the finding of fact by the learned vice-chancellor.

From this statement of facts, the measure of damages is to be ascertained by the application of the well-established rule, which is the difference between the contract and market price of the goods at the time and place of delivery, as fixed by the contract. This amount is $7,728. This leads to a reversal of the decree.

The result flows from a consideration and application of the following settled legal principles: Upon the appointment of a receiver- he takes the property of the corporation, including its franchises, in the same condition and subject to all the duties, obligations and liabilities that rested upon the corporation itself. New Jersey Southern Railroad Co. v. Railroad Commissioners, 41 N. J. Law 235, 249. He holds the title to the property for the common benefit of all interested therein.

Placing the property of a corporation in charge of a receiver does not, ipso facto, work its dissolution, nor does it extinguish its corporate life. The appointment of a receiver is a mere mode of procedure for the administration of justice. Ibid. The corporation continues to exist until its dissolution is effected, either by surrender or judicial decision. Kirkpatrick v. State Board of Assessors, 57 N. J. Law 53; Rosenbaum v. United States Credit System. Co., 61 N. J. Law 548; Spader v. Mural Decoration, &c., Co., 47 N. J. Eq. 18.

A decree of insolvency against a corporation does not work a rescission or termination of its contracts. Bolles v. Crescent Drug, &c., Co., 53 N. J. Eq. 614.

It does not, ipso facto, constitute an anticipatory breach of its contracts.

The measure of damages, the statute provides for, the Sales act (4 Comp. Stat. p. 4662 § 64; P. L. 1907 p. 311). (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract. (3) When there is an available market for the goods in question the' measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. See King v. Ruckman, 24 N. J. Eq. 298; affirmed, 24 N. J. Eq. 556; 24 R. C. L. 116 386. The decree of the court of chancery is reversed, to the end that the record may be'remitted to that court with instructions to enter a decree in accordance with the foregoing opinion. .

For affirmance—Hone.

For reversal—The Chief-Justice, Swatze:, Trencitard, Bergen, Minturn, KalisCh, Black, Katzenbach, Gardner, Ackerson, Van Buskirk—11.


author: Ackerson, J.

text:
    Otto Le Roy Fitzsimons, petitioner-respondent, v. Marguerite B. Fitzsimons, defendant-respondent. Otto Le Roy Fitzsimons, petitioner-respondent, v. Marguerite B. Fitzsimons, defendant-appellant.
    No. 41.
    No. 65.
    [Submitted July 3d, 1922.
    Decided November 20th, 1922.]
    On petition for absolute divorce brought by a husband on the ground of adultery and answer by the wife denying the adultery, alleging condonation, and setting up a cross-petition for divorce a mensa et tlioro on the ground of extreme cruelty, the evidence considered and the facts found—Held, to show adultery on the part of the wife but not to show extreme cruelty on the part of the husband.
    On appeal from a decree of the court of. chancery dismissing petition for divorce and also appeal from the same decree dismissing cross-petition.

      Messrs. Cole & Cole and Mr. Clarence L. Cole, for the appellant-respondent, Otto Le Boy Fitzsimons.

      Messrs. Moore & Butler and Mr. Robert H. McCarter, for the respondent-appellant, Marguerite B. Fitzsimons.
   The opinion of the court was delivered by

Ackerson, J.

This is a suit for divorce. The husband filed a petition praying for a divorce on the ground of adultery, and the wife filed an answer denying the adultery, setting up condo-nation and a cross-petition for divorce a mensa et fkorn because of the extreme cruelty of the husband. The learned vice-chancellor, after hearing the testimony, dismissed the husband’s petition and also dismissed the wife’s cross-petition. Both parties have appealed.

The husband’s case rests upon two charges of adultery, one in August, 1920, with a man whom we shall refer to as “G,” and the other in April, 1921, with a man whom we shall call “K,” at the Normandie hotel in Philadelphia.

'The proofs show a remarkable intimacy between the defendant and “G,” a married man, living apart from his wife, while defendant was visiting at a country place called Monroe. She herself admitted on the witness-stand that she allowed him to love her and kiss her and be very affectionate towards her; that she frequently telephoned to him and that they frequently went riding alone together, and that after her return to her home at Atlantic City she corresponded with him and received many letters from him, addressed to and received by her at an address other than where she resided with her husband, two of which letters were found by her husband under her pillow and were of an extremely affectionate character, referred to previous clandestine meetings with “G” and advised that his letters be destroyed, and otherwise indicated that illicit relations existed between “G” and the defendant. Her explanation of her intimacy with “G” is that she was a friend of his wife’s and that he and his wife had become estranged and were not living together, and defendant thought that by being kind to him she could bring them together again. She admits, however, that she never saw “G’s” wife during this period and never spoke to her about the subject. Just how she expected to effect a reconciliation by winning the affection of the husband does not appear, and it seems to us that such conduct is hardly consonant with her protestations of innocent intentions.

Shortly after her visit to Monroe the defendant’s physician discovered that she had a venereal disease. She admits it, but says that she contracted it by wearing undergarments belonging to her sister, who, she says, contracted the disease in the early part of the same year. This sister, however, was not produced as a witness, nor was her deposition taken, although it was admitted that she was living in Baltimore, and her absence was not otherwise explained, nor is any other evidence produced in support of the defendant’s claim.

Coming now to the second charge of adultery, we find the uncontroverted facts to be, that without the knowledge of her husband the defendant and her sister left Atlantic City on the afternoon of April 22d, 1921, with two young men, whom defendant had known for only a few weeks, traveled with them to Philadelphia by automobile, had dinner, with liquor, at a restaurant, where all four stayed until nearly midnight, when they went from this restaurant to the Hotel Normandie, where the two 'men and the two women were registered by the men, as husbands and wives, and two rooms were assigned to them upon that theory by the hotel clerk (the defendant and her escort being registered as “Mr. and Mrs. K.”); that the suit cases of the men (the women had none) were placed in the separate rooms and that they all stayed all night at this hotel and had breakfast together the next morning in a private room, after which they all left the hotel together.

It would seem to require unbounded faith and considerable ingenuity to evolve from the' foregoing facts a situation which would be consistent with the defendant’s innocence of the charge laid against her; but she says in explanation of her conduct on this occasion that she took this trip to Philadelphia solely for the purpose of preventing her sister from becoming intoxicated, a social error which sometimes got the better of her, intending to bring her back to their home in Atlantic City by train the same evening; that on their arrival at Philadelphia, at about six o’clock in the evening, they proceeded first to the Normandie hotel to see a lady friend of the defendant’s; but finding that she did not reside there the defendant and her sister went alone to the home of a married woman friend of theirs to fix themselves up after the automobile ride, and where they remained for about two hours, away from the two men; but later joined them for dinner at a restaurant, where the sister and the two men had liquor to drink and all became intoxicated except the defendant, and where they all remained until midnight; and that after they went to the hotel she got her sister, who was still intoxicated, into a room by herself, and the defendant sat up in an adjoining sitting-room alone all night and never went near her sister again until morning; that Mr. “K” slept in the other bedroom and she does not know where the other man slept,, and that she did not know that she had been registered as “El’s” wife until the next morning. Neither of the men were produced before the vice-chancellor; but their depositions were taken in Philadelphia and read at the hearing, in which they both claimed to be intoxicated when they went to the Normandie hotel with the two women, and “K” claiming to have been so intoxicated that he does not remember anything which happened at the hotel the night ■ in question, and the other man does not remember whether he registered or not. On the whole, the statements of these men do not impress us as bearing the ear-marks of truth. If the defendant’s intentions were innocent it is hard to understand why she and her sister did not take a train back to Atlantic City during the two hours they were at their friend’s home, apart from the two men, or perhaps later in the evening, as it was admitted that there were several trains leaving for Atlantic City during the course of the evening; or why the two women did not spend the night at their friend’s home, where they were earlier in the evening; or why they did not insist that the men go to another hotel for the night. • We cannot give credence to defendant’s version of the Philadelphia trip. The proofs certainly show a desire on the part of the defendant to commit adultery, and abundant opportunity to gratify it, coupled with evidence tending to show the actual commission of the offence. Story v. Story, 91 N. J. Eq. 515. We find ourselves irresistibly led to the conclusion of defendant’s infidelity. Nor has she substantiated her defence of condonation. It is sufficient on this point to remark that she herself admits that she did not cohabit with her husband after February, 1921, and the Hotel Normandie incident did not occur until April 22d, 1921.

It is possible that we might not reach the conclusion which we have as to the unfaithfulness of the wife if there was only one suspicious circumstance against her; but when there are several, each pointing strongly to infidelity, it extends beyond the realm of coincidence.

We have carefully considered the evidence produced on the part of the wife in support of her cross-petition for divorce a mensa et thoro on the ground of extreme cruelty, and we do not think there was sufficient evidence of such charges to justify her cross-petition, and have concluded that the learned vice-chancellor properly dismissed it.

These views lead to a reversal of the decree against the husband and the granting of the prayer of his petition, and to an affirmance of the decree against the wife upon her cross-petition.

No. 41. Appeal of husband—

For affirmance—None.

For reversal—The Chief-Justice, Swayze, Trenohard, Bergen, Minturn, Kalisch, Black, Katzenbach, Gardner, Ackerson, Van Buskirk—11.

No. 65. Appeal of wife—

For affirmance — The Chief-Justice, Swayze, Trenchaed, Bergen, Minturn, Kalisch, Black, Katzenbach, Gardner, Ackerson, Yan Buskirk—11.

For reversal—None.


author: Per Curiam.

text:
    Farmers' Loan and Trust Company, appellant, v. Erskine Hewitt et al., respondents.
    [Decided November 20th, 1922.]

      Mr. Merritt Lane, for the appellant.

      Messrs. McCarter ,<& English, for the respondents.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Backer, whose opinion is reported in 94 N. J. Eq. 65.

   Per Curiam.

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

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Ackerson—10.

For reversal—Parker, White, Van Buskirk—3.


text:
    In the matter of the probate of the last will and testament of William B. Wetmore, deceased.
    [Decided November 20th, 1922.]
    On appeal from the prerogative court.

      Mr. Harry Cassman and Messrs. Bourgeois & Coulomb, for the appellants.

      Mr. Clarence L. Cole, for the respondent.
   Per Curiam.

This is an appeal from a decree of the prerogative court, advised by Learning, vice-ordinary, affirming an order of the orphans court of Atlantic countjr admitting to probate the will of William B. Wetmore, deceased. The contention of the caveators, who are the appellants here, was and is that this will is the product of undue influence exerted upon the testator by one Morris Coblins, who is the principal beneficiary under the will. We are told by counsel for the appellants that at the time the will was made the relationship between Coblins and the testator was so confidential in character as to place upon the former the burden of proving affirmatively the non-existence of undue influence on his part as the producing cause of the will, and the argument is that, this burden existing, Coblins failed upon the hearing in the orphans court to discharge 'himself of that burden.

Our examination of the testimony returned with the appeal leads us to the conclusion that no such confidential relationship as is asserted existed between the testator and his beneficiary ; and, further, that the proofs fail to substantiate the charge that the will was the product of undue influence exerted by Coblins upon the testator.

The decree under review will be affirmed.

For affirmmce— The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.

For reversal—None.


text:
    E. William Myers, complainant-respondent, v. J. Wiss & Sons Company, a corporation, defendant-appellant.
    [Decided October 6th, 1922.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Fielder, who delivered the following opinion 'orally:
    “The question I am called upon to decide is: What was the contract between the complainant and defendant? My conclusion is that the contract must be gathered from the letter of December 27th, 1919, which, if clear and explicit in its terms, will be the only guide in determining the contract and no extrinsic evidence would be considered to vary the terms of that contract. If the terms of the letter of December 27th, 1919, are ambiguous or indefinite in any particular as to the issue now before the court, then parol evidence and evidence that can be gathered from the written communications passing from one party to the other, prior to the date of the letter in question, will be considered, and that, in my judgment, eliminates consideration of the letter of February 6th, 1920, written by Mr. Gairoard on behalf of the Wiss company to the complainant, for it seems to me, as I have heretofore stated, that what Mr. Gairoard said by his letter in the latter part of February, 1920, as to what he understood the contract to be, would not make the contract different from what it purports to he, and since he had the right to terminate Mr. Myers’ employment with the company, if Mr. Myers did not agree with him as to the terms of the contract, and he did not exercise that option, Mr. Myers’ continuing in the employ of the company would be a continuance under the terms of the contract as it really existed and as I must determine it to he. Of course, it is to be noted that there was no notice from Mr. Myers to the company that he did not accept the terms of the letter of February, 1920, until at or about the time he resigned, unless the statement he made to Mr. Brooks about the second of March, 1920, on his return from his trip south, when it appears to me from the evidence he first saw the letter1 of February, 1920, can be considered notice, and if I were called upon to rule .upon the question I would say that Mr. Brooks’ connection with the company has been proven to be such that what Mr. Myers said to him on that occasion would be notice to the company, for Mr. Brook’s connection with the sales department appears to have been such that he would be required to communicate that notice to Mr. Gairoard, his superior. But I must determine the issue, I think, by the letter of December, 1919, explained by any evidence as to its ambiguity. The question at issue now is whether the complainant, according to the terms of his employment, is entitled to receive a commission at the agreed rate on sales made by him prior to the date of his resignation, which took effect in April, 1920, where orders from his territory were accepted by the defendant, but not filled until after the date the resignation took effect. Of course, if the contract says that he was not entitled to any, compensation by way of commissions on shipments made after'his employment terminated, that would settle the whole matter. Of the letters offered in evidence on the point at issue, the only letter I find that hears on the subject is the letter of November 20th, 1916, which letter I will assume, from the testimony in the case, reached Mr. Myers in the due course of business on or about its date. That letter was written three years before the contract which is now the subjeeDmatter of dispute was entered into, and it says: ‘In view of the inability of some salesmen to follow instructions and to prevent too great a congestion in our office, we have decided that after January 1st, 1917, we will credit our salesmen only with the amount of goods when shipped/ which I understand to mean: We will credit our salesmen, when shipped, with the amount of orders that we accept and they will not be entitled to such credit until the goods are shipped; that is, they will not be entitled to receive their commission on the sale price of the goods until the goods are shipped. That is the only communication I see in the case that bears on the question written prior to the date this contract was entered into. The letter of December 27th, 1919, which upon being accepted by Mr. Myers, makes the contract, starts out with this statement: ‘Owing to the peculiar condition of business we find it necessary to make a change in your commissions for goods shipped to customers.’ That change, from the evidence, appears to have been in the rate of commission, and not in any other other condition pertaining to the employment as it existed prior to the entering into of this contract. The letter then proceeds to provide for a flat yearly salary and traveling expenses, and then, on any excess of sales over $14,000, percentage bonus to be paid. There is no statement whatever in the letter, as I read it, as to when the payment of the bonus is to be made. I do not read the letter to say that it should be made when the orders are accepted, or when the goods are shipped; but taking into consideration the previous arrangement between the parties under which monthly settlements were made between them, it would seem to me quite clear that payment of the commission or bonus was not to be made until the goods were actually shipped out of the factory to the customer; but I do not understand that to. mean that there was not a credit payable at some time to the salesman on orders accepted by defendant. Payment was merely postponed to the date when the salesman would be entitled to receive the amount of that credit by a check or by cash. It would seem to be unfair to a salesman who had worked his territory and was subject to dismissal or could terminate his employment at any time, under the terms of his contract, to say that upon dismissal or other termination of his employment he would lose the benefit of all orders he had solicited and were accepted by his principal, merely because his employment had terminated before the orders were actually filled. The principal would have the benefit of all profits on such sales, while the salesman would lose his commission. My interpretation of the contract is that upon all orders taken by Mr. Myers and upon orders that came by mail, or that came within the terms of the contract, from the territory over which he had control, he would be entitled to receive commissions at tire rate fixed by the contract, notwithstanding the fact_that the orders were not filled until after the 15th of April, when his resignation went into effect.
    “I understand that it will be necessary to take an account of the amount of business doné within Myers’ territory, and of orders filled and the goods shipped after April 15th, 1920, in order that a sum may be ascertained on which the commissions will apply and I will send the accounting to a special master.”
    Messrs. Reed & Reynolds and Mr. Alfred F. Skmner, for1 the defendant-appellant.

      Mr. W. 'Howard Femarest, for the complainant-respondent.
   Per Curiam.

The order will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Fielder.

For affirmance — The Chibe-Justice, Swatzb, Trenchard, Bergen, Minturn, Kalisci-i, Black, Katzenbacii, Heppent-ieimbr, Williams, Aokerson, Van Buskirk—12.

For reversal—Parker, White, Gardner—3.


text:
    Alice Powers and Mary Hoskin, complainants-appellants, v. Agnes Finnerty, defendant-respondent.
    [Decided October 6th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who delivered the following opinion orally:
    “Where a relation of trust and confidence exists between donor and donee, in case of a gift inter vivos, the burden of proof is on the donee to establish by evidence satisfactory to the court that there was no deception practiced as against the donor; that the transaction was fair and open and that the donor fully understood the .effect of what he was doing when making the gift. So, in this case, where the conveyance is made by the father, who is aged and suffering from the infirmaties of age rather than from chronic disease, to a daughter with whom he lived, the burden of proof is on the daughter to show that the conveyance was not the product of deception or undue influence. There is another rule which applies to cases of this nature, known as the rule of ‘independent advice.’ As I understand the decisions of this state, if the conveyance had been of all the father’s estate to his daughter, so that the father was stripped of all of his property and was left to the mercy of others for support, the rule of independent advice would be invoked to the exclusion of any other rule, and had there been no independent advice the conveyance would be set aside without regard to the question of undue influence ;• but where the conveyance is not one that strips the donor of all his property, but is a conveyance of only part of this estate, and, in proportion to his whole estate, a small part, the rule of independent advice is not applied, at least with the same strictness as it is in other eases, and I do not think it applies to this1 case. I think the daughter in this case has sustained the burden of proof that the rule laid down by this court cast upon her. I think it is’ apparent from the testimony that Patrick Finnerty, although eighty-three years of age and suffering from the ills which a man of that age is liable to suffer, still had mental capacity and ability to transact the ordinary affairs of business with regard to his own property and to deal with a transfer of property to his daughter. I think the testimony shows a desire to give this property to his daughter uninfluenced by any suggestion or wish on her part; for there is no testimony whatever to indicate that the suggestion with regard to the transfer came from her, or in fact to show that she knew anything about the transfer until after the father had decided to make it, and then she had but a short conversation with her father on the subject. When a conveyance is made to a person who is not accustomed to buying or selling real estate, recollection as to the details of a transaction such as this must necessarily be vague in the mind of an inexperienced person. I must therefore make allowance for Miss Finnerty’s failure to recall all that was said by her father to her, or to Judge Mylod in her presence, concerning the transfer of the property, and while, as has been said by counsel for the complainants, testimony of an attorney who has put through the transaction is perhaps unconsciously affected by the part he played and-the interest he might have in sustaining the transaction; still, his testimony is not to be wholly disregarded and it must-be taken in connection with all the other circumstances of the case and weighed as testimony of a party in interest would be weighed.
    “I think there is no evidence to show undue influence on the part of Miss Finnerty in connection with this transfer, and I think the explanation that is made of the reason for the transfer and the circumstances under which it was made, negotiations between Mr. Finnerty and the man who proposed to buy the property from him, or from Miss Finnerty after it was transferred to her, show that Finnerty was of mental capacity sufficient to deal with this property and to treat with one who desired to purchase it and to discuss-with him intelligently the terms and conditions of sale.
    “There has been no question raised as to the delivery of the deed. I do not think there is room for argument as to the delivery of the deed. It was executed by the donor and whether Judge Mylod held the deed up to Miss Einnerty, as he testified he did, and said: ‘Here is your deed; the property is now yours; the deed should be recorded/ something was said about the recording of the deed in connection with the execution of it and the fact that it is a deed which conveys the fee and that it was directed to be recorded at once, either by the donor or by the donee, shows an intention to make immediate delivery of it.
    “There was some question in my mind on the testimony of Miss Einnerty as to whether the intent of this deed was to make a conveyance which should have the effect of a will; that is, to take effect after the death of the donor; but taking into consideration all the circumstances and the testimony of Judge Mylod, I have reached the conclusion that it was not a conveyance to take effect after.death; that it was by its terms and on its face an absolute conveyance and without reservation, and as the direction was to record it immediately, and I have found that there was immediate delivery, there would, on the face of the transaction, be an immediate transfer of title with which possession would go. The fact that the deed was dated November 17th and that the donor received the rents for the months of November, December and January and paid the taxes and some insurance and water rent, would not, under the circumstances, be sufficient to convince me that there was no intention to make immediate delivery because the daughter says she was willing to permit her father, in his old age, to receive the rent and have it for her and his support while the property was hers; so that I find that this was a deed to take effect immediately and passed title upon its delivery. I shall dismiss the complainant’s bill.”

      Mr. Thomas Brunetto, for the complainants-appellants.

      Mr. Charles Jones, for the defendant-respondent.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Fielder in the court of chancery.

For affirmance — The Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskirk—14.

For reversal—None.


text:
    Sadie Freeman et al., appellants, v. Leo Feder et al., executors, &c., respondents.
    [Argued June 21st, 1922.
    Decided November 21st, 1922.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Backes, whose opinion is reported in 93 N. J. Eq. 414.

      Mr. William B. Courley, for the respondent Rebecca Rhode.

      Mr. Francis Scott, for Leo and George Feder.

      Mr. Louis G. Morton and Mr. Robert II. McCarter, for the appellants.
   Per Curiam.

The contest in this case is over the prohate of the last will and testament of .Charles Peder. The contest was made on the ground of undue influence. The will was admitted to probate hy the orphans court of Passaic county.

On an appeal to the prerogative court the decree of the orphans court of Passaic county was affirmed and the appeal dismissed. We have examined the voluminous record with the result that we have reached the same conclusions as the orphans court of Passaic county and the prerogative court. The questions involved are largely questions of fact.

The decree of the prerogative court affirming the decree • of the orphans court of'Passaic county should he affirmed and the same is hereby affirmed.

For affirmance—Swayze, Trenchard, Minturn, Black, Katzenbach, Williams, Gardner'—7.

For reversal-— The Chiee-Justice, Parker, Bergen, Heppenheimer, Ackerson, Van Buskirk—6.