text:
    W. H. LEAR, PLAINTIFF-RESPONDENT, v. SOL. A. ALTSCHULER, DEFENDANT-APPELLANT.
    Submitted March 13, 1924
    Decided July 9, 1924.
    Negotiable Instruments — Note—Held by Third Party Without Notice of Defect — Claim that Consideration for Note was Not as Agreed.
    Before Justices Kaliscjbc, Katzenbaoíí: and Lloyd.
    Por the defendant-appellant, Aaron A. Melniker.

    Por the plaintiff-respondent, Joseph 31. Goldweber.

   Per Curiam.

This is an appeal by the defendant below from a judgment of the District Court of the city of Bayonne.

On August 29th, 1921, the defendant, Sol. A. Altschuler, made a promissory note for the sum of $500, payable six months after date, to the order of the National Refrigerator and Table Company. This note was transferred on January 24th, 1922, to W. HI Dear, the plaintiff, by the National Refrigerator and Table Company, which was indebted to Lear in the sum of $1,300. The note was protested at maturity. The bookkeeper of W. H. Lear demanded payment of the National Refrigerator and Table Company, and was told to collect from the maker, the defendant. The note was then forwarded to an attorney in Bayonne, who instituted this suit. The defendant at the trial offered to prove that there was a failure of consideration for the note, in that the goods for which the note was given were not in accordance with the terms of the contract. This offer was overruled on the ground that the plaintiff was a bona firfo holder for value before maturity and without notice of any equities as between the maker and payee. The court directed the jury to find a verdict-for the plaintiff. This direction and the failure to admit the testimony referred to constitute the grounds of appeal. There is no principle of law better set-tied than the principle that a person wlm has transferred to him a promissory note for a valuable consideration, before maturity, and without notice of any equities existing between the original parties to a promissory note, is a bona fide holder for value, and takes the same free from equities between the original parties. The holder, under such circumstances, can collect the amount of the note from the maker, notwithstanding any claim that the maker of the note may have against the payee. The principal cases in this state on this subject are Hamilton v. Voight, 34 N. J. L. 187; Rice v. Barrington, 75 Id. 806, and Davis v. Clark, 85 Id. 696. Section 52 of the Negotiable Instrument act (3 Comp. Stat., p, 3741) states that a holder in due course is a holder who has taken the instrument under the following conditions: “1. That it is complete and regular upon its face; 2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; 3. That ho took it in good faith and for value; 4. That at the time it was negotiated to him he had no notice of any informity in the instrument or defect in the title of the person negotiating it.”

Section 57 of the same act (3 Comp. Stat., p. 3741) provides that a holder in due course holds in instrument free from any defect of title or prior parties, and free from defenses available to prior parties among themselves, amb may enforce payment of the instrument for the full amount thereof against all parties liable thereon.

The evidence in the present case offered by the plaintiff, in the proof of his case, showed that the plaintiff was a holder in due course. He, therefore, held the note free from defenses available to prior parties among themselves. The evidence the defendant below desired to offer was merely as to the failure of the consideration of the note. This the defendant was precluded from proving under the undisputed evidence of the plaintiff being a holder in clue course of the note upon which suit was brought. The District Court ruled properly in excluding the evidence and directing a verdict for the plaintiff.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARY CURTIL, PLAINTIFF, v. LOUIS BONHARD AND SAMUEL GINDIN, DEFENDANTS.
    Submitted March 13, 1924
    Decided May 28, 1924.
    Replevin — Judgment Against the Writl — Bond in the Case Subject of this Suit — Suit Not Defended at Trial — Alleged Failure to Recover Notice — Allegation of Discharge of Bond.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor tlie plaintiff, August G. Streitwolf.

    Eor the defendants, W. B. Grosson (Dommick M. AcoceUa, of counsel).
   Per Curiam.

This case is before us on a defendant’s rule to show cause why a verdict rendered should not be set aside and a new trial allowed.

The facts are briefly as follows: The plaintiff, Mary Cur-til, was the owner of a certain goods and chattels which were in the custody of Peter Squiendo'. On July 1st, 1919, Louis Bonhard instituted an antion of replevin in the Middlesex County Circuit Court against Squiendo. The sheriff of Middlesex county took the goods under a writ of replevin. Bonhard and one' Samuel Gindin, as surety, executed a bond fox $2,400 for the prosecution of the suit and the return of the goods and chattels, should a return be awarded. This action was tried on July 12th 1921. A verdict was rendered in favor of Mary Ourtil. The judgment rendered directed that Bonhard return the articles within ten days after the entry of judgment. This Bonhard did not do. On October 25th, .1922, the sheriff assigned the replevin bond to Mary Ourtil. She instituted this suit against Bonhard ■and Gindin. A judgment against Gindin was taken by default. Bonhard filed an answer. He did not, however, appear at the trial. A judgment of $1,224.18 was obtained against him by Mary Curtil. The attorney for the defendant Bonhard claims, that the plaintiff’s attorney agreed to notify him when the case came on for trial, and that he failed .to do so. There was no written agreement to this effect. The agreement is claimed to have been made in the county clerk’s office, in Now Brunswick, between Mr. Basik and Mr. Steitwolf, the plaintiff’s attorney. Mr. Basik was the representative of the defendants’ attorney. There is printed in the record what purports to be an affidavit of Mr. Basik, but it is not signed, and the jurat is not filled out. The attorney for the defendant Bonhard rests solely upon this alleged affidavit of Mr. Basik. No affidavits have been taken under the rule in behalf of Bonhard. No- opportunity has been given to the plaintiff or to her attorney to cross-examine Mr. Basik. The burden is upon the defendant Bonhard to establish the facts set forth in his petition. He has failed to do so under the rules and practice of this court. Supreme Court rule 122. We are therefore of the opinion that the rule to- show cause in this ease should be discharged. We have reached this conclusion the more easily, because from an examination of the record there appears to have been no meritorious defense interposed. The answer states that the judgment was not entered on July 12th, 1921, but on September 2d, 192-2, and the defendant Bonhard then tendered to> the plaintiff the goods in question. The record of the judgment it is stated shows that it was entered on July 12th, 1921. A tender made in September would be- too late.

The second defense is that Bonhard never received the goods enumerated in the- writ, but (ally a part of them. This states no defense, because the defendant cannot attack collaterally a sheriff’s- return, which states that he took and delivered all the goods to the defendant.

The third defense is that the replevin bond was formally discharged. The defendant relies upon a marginal note appearing opposite the record of the bonds in the county clerk’s office reading, “Canceled November 28th, 1919.” No one knows how this marginal note got there. This could constitute no defense to this suit, as it does not appear that there was- an order made canceling the bond.

The rule to show cause is discharged, with costs.


text:
    HARRY D. WETHLING, TRADING AS AGENT FOR BOTTLING DEPARTMENT OF ORANGE BREWERY, PLAINTIFF, v. MICHAEL WEINSTEIN, DEFENDANT.
    Decided July 31, 1924.
    Judgments! — Openingi—Defendant Drafted in Federal Service— No Notice of Trial Served — Alleged Purchase of Goods as Agent was Weil Known to Plaintiff.
    On defendant’s rule to show cause.
    Before Justices Kalisctt, Katzenbach and Lloyd.
    Eor the plaintiff, Arthur B. Seymour.

    Por the defendant, Ward Eremer.

   Per Curiam.

A judgment was entered in the Supreme Court on the 21st day of June, 1919, for the sum of $1,808 dallars damages and $50 costs in favor of the plaintiff and against the defendant. The action, in Avliich the judgment was entered, was to recover the price of a shipment of beer alleged to have been sold and made to the defendant. The judgment ivas taken by default at the Essex Circuit.

It appears that the defendant A?as sued, by the plaintiff' early in the year 1918. In May, 19.18, he was drafted into the service of the United States army, and an affidavit of merits was filed for the defendant by Mr. Poland, who was acting as defendant’s attorney. While the defendant was at Camp Dix, where he ivas stationed for nine weeks, he Avas served with an order to appear at Long Branch before a Supreme Court commissioner for examination which he did and gave testimony. Eroni that time on the defendant says he heard no more of the progress of the case against him. At the expiration of the nine weeks at Camp Dix the defendant was sent with the army to Prance, whence he returned to New Jersey after an absence of six months.

The defendant testified under the rule that he never received any notice of the trial, which appears took place at Newark, in the Essex Circuit, at the April term, 1919. It appears, however, that a notice of trial was issued in the case by the plaintiff’s attorne}', which notice was served upon Mr. Poland as defendant’s attorney, and who refused to acknowledge service of the notice. Mr. Poland testified that he advised the plaintiff’s attorney that he was unable to locate defendant, and suggested that the plaintiff’s attorney should get in communication personally with the defendant and make personal service of the notice of trial upon him. This testimony does not appear to have been denied. There is also testimony tending to show that the defendant has a meritorious defense.

The defendant’s contention is that the beer, tlie price of which he was sued for by the plaintiff, was bought by him as agent for Michael Weinstein, Incorporated, a corporation. That this fact was well known to the plaintiff.

We have reached the, conclusion that the judgment should be opened for the purpose of permitting the defendant to present his defense, and that, in the meanwhile, the judgment shall be: preserved as a lien against the defendant’s property until the final determination of the case.

Costs to abide the event of the action.


text:
    SADIE STACK AND LOUIS STACK, PLAINTIFFS, v. DAVID GELTZEILER AND ALEXANDER LEBOWITZ, DEFENDANTS.
    Submitted June 6, 1924
    Decided August 2, 1924.
    Negligence — Motor Vehicle Collision — Injury to Invited Passen- ' ger — Nominal Damages Verdict Set Aside — Awards to Husband Also Inadequate.
    On plaintiffs’ rule to show cause why a verdict in their favor should not be set aside.
    Before Justices Tren chard, Mtnttjrn and Lloyd.
    For the plaintiffs, Milton M. Unger.

    For the defendant David Geltzeiler, Samuel D. Williams.

    For the defendant Alexander Lebowitz,. William B. Harley and William H. D. Cox.

   Per Curiam.

This is the plaintiffs’ rule to show cause why a verdict for six cents in favor of the plaintiff Sadie Stack and against the defendant David Geltzeiler, and for $117 in favor of the plaintiff Louis Stack and against the defendant David Geltzeiler, and a verdict in favor of the defendant Alexander Lebowitz and against the plaintiffs, should not be set aside and a new trial granted.

The defendant Geltzeiler invited the plaintiff Sadie Stack, with others, to ride with him in his automobile from Newark to Lakewood, New Jersey. This invitation Mrs. Stack accepted, and at Linden, on the way to Lakewood, the car of Geltzeiler, and the car of the other defendant Lebowitz, met in accident, the result of which was to injure Mrs. Stack.

We are clearly of the opinion that the verdict in favor of Mrs. Stack for six cents is inadequate and contrary to the evidence. She was very considerably injured. The testimony, without any substantial contradiction, disclosed that her body was bruised, her knees and back and hands cut and sprained, and her eyes were filled with glass. She was in bed two weeks attended by a physician. Here hand was disabled and she was unable to go out for months.

.Also, the verdict in favor of the husband for $117 appears to he inadequate, in view of the great weight of the testimony, in that it failed to compensate him at all for loss of service and companionship of his wife, his,recovery being-limited to actual expenditures.

In view of the fact that this verdict, notably the limited recovery of the wife, can be accounted for only upon the theory of mistake or prejudice, we feel constrained to set aside the verdict in its entirety and to grant a new trial to both plaintiffs and against both defendants, since there was abundant evidence from which an impartial jury might find hath defendants liable.

The rule to show cause will be made absolute.


author: Foster, V. C.

text:
    John Martin Lotz, complainant, v. Addie J. Rippe, individually and as executrix, &c., of Annie E. Rippe, deceased, et al., defendants.
    [Submitted July 18th, 1924.
    Decided July 26th, 1924.]
    Specific Performance — Contract for Transfer of Real Estate upon Death of Transferee — Irrevocable Bequest in Will— Subsequent Will Making Other Disposition — Justice and Equity of Former Contract — Counter-claim of Defendant for Services to Testator — Decree for Compainant.
    On bill, &c.

      Messrs. -John 8. Applegate & Son, for the complainant.

      Messrs. Reilly, Quinn <C Parsons, for the defendants.
   Foster, V. C.

This is an action to compel the specific performance of a written contract for the sale of real estate in Monmouth county, made by complainant with the decedent, Annie E. Rippe, on June 19th, 19.19. The defendants are the daughters of Mrs. Rippe, and Addie J. Rippe is the executrix of her will.

They resist complainants claim on the ground that he obtained the contract through fraud and the exercise of undue influence, and that there is no consideration for the contract. The defendant Addie J. Rippe, individually, by her counter-claim, seeks alternative relief and compensation for work and services performed for, and rendered by her to decedent, under an agreement alleged to have been made between her and her mother in May, 1916. Complainant, by his replication, disputes this contract, denies liability thereunder, and pleads the statute oí limitations as a bar to its enforcement.

From a mass of contradictor)’ evidence the following facts are clearly established: Complainant, who is an unmarried man, about forty-nine years of age, is the nephew of Mrs. Rippe: for years he worked for her and her husband on their farm for $10 a month and his hoard. After Mr. Rippe’s death, in 1900, and after the farm had been sold and the premises in question, which consists of about two acres of land and an ordinary house of eleven rooms, in West Long Branch, had been purchased by Mrs. Rippe, in 1907, complainant continued to live with her until her death, in November, 1923. He worked as a carpenter, and paid her $5 weekly for his hoard, and did chores about the place without pay. When Mrs. Rippe bought the property, in 1907, she placed a mortgage for $3,000 on it, and this mortgage, now reduced to $2,500 by payments made by complainant, is still a lien upon the property.

This property was the only estate Mrs. Rippe had, and her sole source of income was from the sale of vegetables raised on the place, largely through complainant’s work, and from a lew permanent and summer boarders, who paid about $10 per week.

Defendants claim the mother’s income in summer from these sources averaged about $200 weekly, having as many as twenty boarders at a time.

I am unable to believe this, as the house contains only seven bedrooms, and five of these were permanently occupied by members of the household, including complainant, who was the only one of the five to pay any board. The permanent use of these bedrooms left only two bedrooms and the living rooms for the accommodation of summer boarders.

Whatever Mrs. Rippe’s income was, it was not sufficient to enable her to maintain her household and to regularly pay the fixed carrying charges of the property’.

This condition was known to the members of the household and the matter was occasionally discussed. About May, 1919, Mrs. Rippe was not in good health and was worrying over this situation, and complainant then proposed to her “that if she would make the place over to him for the amount of the mortgage he would keep a roof over her head.” She asked for time to think the matter over, and about a month later she asked him to go with her to her lawyer’s office.

Complainant states that the day before he made this oiler to her he made the same suggestion to her daughter, the defendant Addie, who replied “that it was a wonder someone hadn’t done or thought of that before.” This is denied by Addie, who states sire never heard of the matter until about three months before her mother died.

On June 19th, 1919, complainant accompanied Mrs. Eippe to the office of her attorney, John S. Applegate, Jr., in Eed Bank (the Applegate estate is the owner of the mortgage upon the property), and thereafter a-conference with Mr. Applegate, in which the reasons for and the details of the arrangement were discussed, the agreement in question was drawn and executed by complainant and Mrs. Eippe, and at the same time Mr. Applegate prepared and she executed her will.

By the terms of the agreement, which was duly recorded the day after its execution, among deeds in the county cleik’s office, the parties, in consideration of $1 paid to each other, agreed, that complainant should take possession of and work the property in question, that he was to receive the income and profits therefrom and pay the mortgage, together with the interest thereon, as well as all' taxes and other liens and assessments, then due and as they thereafter accrued; that Mrs. Eippe reserved to herself the use of the dwelling-house upon the property, and acknowledged that she had that day, in consideration of the agreement, executed her will, devising the property to complainant, and she agreed that this will should remain irrevocable. She further agreed not to convey or undertake to convey to anyone but complainant.

The agreement further provides that if complainant died unmarried, during the lifetime of Mrs. Eippe, the agreement should be null and void, and all rights of complainant thereunder should revert to Mrs. Eippe. If complainant died during her lifetime, leaving a widow or children, then Mrs. Rippe agreed to pay to his widow and children such sum as he may have paid on account of the principal of the mortgage, and a reasonable sum, to he determined, representing the then value of such building improvements as he may have placed upon the premises.

By her will, Mrs. Rippe devised the property to complainant, subject to a charge thereon of $1,000, to be paid by him to her two daughters, and the residue of her estate she gave to her daughters. Complainant was appointed executor of the will, with power of sale.

Complainant entered into possession of the property, except the dwelling-house, and he continued to board with Mrs. Rippe, paying her $5 weekly.

Complainant, in carrying out the terms of the agreement, paid $4-75 on account of the principal of the $3,000 mortgage; lie has also paid the interest thereon regularly since the execution of the agreement to March 20th, 1924, and he also paid the taxes as they became due to June 1st, 1924.

He put a new roof on the dwelling-house at a cost of $200, repaired the chimneys, put in new ceilings, papered the rooms and made other repairs to the dwelling-house, and he also built a greenhouse and hot beds on the property, costing about $1,000. His total outlay for these repairs, improvements and carrying charges is about $2,500, and the property is still subject to a lien of the mortgage for the balance of $2,500.

On September 7tli, 1923, Mrs. Rippe, without informing complainant, executed another will, in which she bequeathed and devised her entire estate to her two daughters, and made her daughter Addie her executrix, and expressly revoked all former wills she had made.

On November 27th, 1923, Mrs. Rippe, who was then about seventy years old, died without having disclosed to complainant that she had made this will, or that she desired to he relieved from the performance of the agreement she had made with him.

This last will was duly admitted to probate without notice to complainant, and Addie has qualified and is acting as executrix thereunder.

In support of their contention that the agreement and the first will were the product of complainant’s fraud and undue influence, defendants have shown that complainant on occasions swore at Mrs. Eippe, using the word “damn;” that at times he spoke to her in a loud and angry tone and that this conduct annoyed her and made her nervous.

Complainant admits that he may have used the word “damn” at times, but states he never swore at Mrs. Eippe, and never frightened her, or intentionally made her nervous.

Complainant denies persuading or influencing Mrs. Eippe to make the agreement, and he states he made the agreement primarily to preserve • the home for her, and in this he is corroborated by the testimony of disinterested witnesses, who state Mrs. Eippe told them she had sold the property to complainant for the mortgage; that she had to sell it to someone, and she would rather have complainant have it than anyone else, because he had been so good to her, and that she felt she could -not keep the property, as the girls had taken $1,500 of her money and left her penniless.

Complainant is further corroborated by the testimony of Mr. Applegate, who was not only the attorney, but a friend of Mrs. Rippe’s for years, and who advised her about the nature and effect of the transaction she was making with complainant.

The agreement itself is the best evidence of the absence of fraud or undue influence on the part of complainant. By its terms the advantages are all given to Mrs. Eippe, she retains title to the property, she retains the use of the dwelling-house, she is relieved from all expenses of upkeep and from all carrying charges, and had complainant predeceased her, unmarried, she would have had the benefit of his labor and efforts in improving the property and also of all of the expenditures and disbursements he had made in improving and carrying it, and if he survived 'her, he could not have the property until he had paid $500 to each of her daughters.

Complainant acted in good faith and performed every agreement he made with Mrs. Eippe, hut she did not treat him in the same way, for unknown to him, and influenced by Addie, she secretly made a new will, in violation of her agreement, and with knowledge oil her part and on the part of her daughters, that complainant, acting under the agreement and the old will, had expended largo sums of money upon the property, -and with this knowledge she further violated her agreement by devising the property to her daughters, entirely ignoring all rights of complainant therein.

Addie is responsible for the execution of this later will; she knew of the agreement; she knew what complainant had done and had expended upon the property, and while her mother was ill, ..and three months before she died, she prevailed upon her to violate her solemn contract and to repudiate all claims complainant had upon her and upon the property.

This conduct upon her part is further evidenced by the nature of her counter-claim and hv the proofs she has offered to establish it.

She admittedly did much work in the household and had the responsibility of its management, she collected money at times from the boarders and claims to have turned it over to her mother, or to have bought supplies with it; she élaims that at her mother’s request, in 1916, she abandoned the idea of marriage, because her mother told her if she would remain and take care of her she would be well taken care of and would be repaid for everything, and she admits that when the last will was made, her mother told her that she wanted her and her sister to have everything. Her claim is for $8,000, which is about $2,000 more than the property is worth.

My conclusion is that complainant lias established his right to have the agreement specifically ])erformed, and that the defendant has failed to establish the agreement for compensation alleged in her counter-claim.

A decree will be advised accordingly.


text:
    William M. Schroeder, as guardian, &c., of Alice Gertrude Schroeder, a minor, complainant, v. Eugenia Stoky, defendant.
    [Submitted July 21st, 1924.
    Decided July 30th, 1924.]
    Gifts Alleged Consideration for Services and Kindness — 'Question of Ownership and of Intent of Original Owner Who had Held Property in a Trust of Her Own Creation for Her Child— Gift Not Proven.
    On bill, &c.

      Mr. Frederic M. Woolley and Mr. William, E. Sandmeyer, for the complainant.

      Mr. Waller Taylor, for the defendant.
   Foster, V. C.

Complainant seeks to recover from defendant the proceeds, or the value of two Liberty loan notes, amounting to $500,_ which complainant claims his deceased wife, the mother of the minor, held as trustee for the child.

Defendant resists this claim, on the ground that Mrs. Sehroeder, the mother, made a gift of the two notes to her to compensate her for her services and kindness, and also to reimburse her for expenses incurred and disbursements made on Mrs. Schroeder’s account.

Complainant and his wife were married about fifteen years ago, and they had one child, the minor, who is now about seven years old.

Mrs. Sehroeder bought the notes in question with her own funds in 1919, and she had them registered in the treasury department, as “Eva May Sehroeder, trustee for Alice Gertrude Sehroeder,” and at the time of the purchase she showed them to her husband and stated she was laying by something for her daughter’s future. Thereafter, Mrs. Schroeder purchased other bonds and opened a savings hank account in favor of her daughter, under the like title of “Eva May Schroeder, trustee for Alice Gertrude Schroeder,” and, except the two notes in question, all of these “trustee” accounts were kept intact and now form the estate of the minor, amounting to $3,000 or $4,000, which is in charge of complainant as her guardian.

In 1919 Mrs. Schroeder contracted tuberculosis, from whit'll she died, on January 11th, 1923. During her illness, or the greater part of it, defendant, who was her sister, was quite devoted in her attentions; she made frequent calls upon her, bringing her articles of food and such few articles of clothing as she required. Defendant resided at Belmar, only a few miles from the sanatorium at Manasquan and the one at Allenwood, to which Mrs. Schroeder had gone for treatment. During this period there was a slight, but not serious, estrangement between Dr. and Mrs. Schroeder.

On January 1st, 1923, Dr. Schroeder told his wife that the notes in question had been called by the government for redemption, and advised her to send them on for payment in order to avoid the loss of interest. At this time Mrs. Schroeder was very ill, hut on January 3d she endorsed the notes as required for their redemption and turned them over to defendant, who caused the amount due thereon to he collected through the Seacoast Trust Company, and had the proceeds credited to her personal account on January 12th, the day following Mrs. Schrooder’s death. Mrs. Stoky now stales that she did this because her sister had made a gift of the two notes to her to pay her for her services and kindness, and to reimburse her for her expenditures she had made in tra\eling to see, her sister and for other purposes, and she estimates these items amounted to about $200 or $300.

Aside from her husband’s testimony, defendant is without corroboration on any feature of her case. And it is significant that Mrs. Schroeder did not tell her husband nor anyone else of this alleged gift, and that defendant never mentioned it to complainant when she met him at the sanatorium on January 6th, 1917, nor at the funeral, nor even later, when she turned over to him in his capacity of administrator and guardian all the effects and property of her sister’s which was in her care, and he only learned that defendant had the proceeds of the notes, after discovering their loss, by investigation, and through the assistance of the officers of the trust- company and of the treasury department.

The proof is neither sufficiently clear nor convincing to establish a gift of the notes, or of their proceeds, of their redemption to the defendant, and I will advise a decree for complainant.


text:
    Abram Kaplan, complainant, v. Morris Bernstein, defendant.
    [Submitted July 25th, 1924.
    Decided July 30th, 1924.]
    Specific Performance — Defense of Unmarketable Title — Alleged Defective Description in Deed — Defect Curable by Reference to Earlier Deeds and Maps Which Were Referred to.
    On motion to dismiss bill.

      Messrs. Corn & fUIverman, for the complainant.

      Mr. Frederick W. Schlossiew, for the defendant.
   Foster, V. C.

Complainant’s bill seeks a decree to compel defendant to specifically perform a written contract to purchase certain lands on Mapes avenue, in the city of Newark.

The defects in the hill pointed out by defendant as showing the title to the premises to be unmarketable are: (1) That the description in the deed under which complainant ac_ qnired title describes the property as being located on the southerly side of Maple avenue, when in fact it is located on the southerly side of Mapes avenue; and (2) that in the description of the property contained in this deed to complainant the second course is omitted.

Title to the premises in question is derived from Weequahic Park Land and Improvement Company, who developed the tract on which the lot in question is located, and tiled a map of the same about 1904.

This company conveyed the premises in question and other property by reference to this map to Joseph and Blanche Conlombe.

The Coulombes conveyed the lot in question to one C. A. Widmer, by deed dated April 2d, 1910, by reference to the map aforesaid. In this conveyance the error in the name of the street, and the omission of the second course in the description, first occur.

Widmer, in 1910, sold to one Tuttle, by the same description, and subject to a mortgage in which the property is correctly described. In 1911 Tuttle sold to one Ondrak by the same description, and subject to the same mortgage, and in December, 1923, Ondrak sold to complainant by the same description, by recitals or reference to some of the preceding “conveyances.

It is admitted that, the mortgage to which some of the above-mentioned conveyances were subject, and which was canceled of record in 1917, contains a complete and correct description of the premises in question.

In all of the conveyances reference is made to the map of the Weequahic Park Land and Improvement Company, which is on record in the office of the register of the comity.

Erom these references to the map, to the mortgages and to prior deeds, the incomplete description in complainant’s deed can he completed, and the quantity and location of the land agreed to he conveyed can be readily ascertained.

The reference to the map, it is conceded, cures the mistake in the name of the street, and it appears that the omitted course in the description can be ascertained and supplied from the map, the mortgage and the prior conveyances mentioned and referred to in the deed to complainant.

The sole purpose of a description of land contained in a conveyance is to identify the subject-matter of the grant. This may be done in words at length, or by reference to some other deed or record containing such a description, and when the deed in this manner refers to another deed, it has the effect 'of incorporating the latter deed in the description, so that what is therein described will pass. Mitchell v. D’Olier, 68 N. J. Law 375; 8 R. C. L. 1078, 1079; see 134, 135.

As the omissions mentioned do not affect the validity of complainant’s title, the motion to dismiss the bill will be denied.


text:
    Emma M. Blatt, petitioner, v. Frederick Blatt, defendant.
    [Submitted July 28th, 1924.
    Decided July 31st, 1924.]
    Divorce — Desertion by Husband — Adverse Report of Special Master Excepted to — Conduct of Husband Led to Ejection From Wife’s Abode — -No Evidence of Effort of Husband Toward Reconciliation Afterward — Exceptions Sustained.
    On exceptions to master’s report.

      Messrs. Howe & Davis, for the petitioner.
   Foster, V. C.

This is ail uncontested divorce case, and exceptions have been filed to the adverse report of the special master. The charge against the defendant was that he deserted petitioner on June 21st, 1921. It appears that the master found the jurisdictional facts of the marriage of the parties oil December 25th, 1882, and of their residence in this state, duly established.

The master bases his adverse report on the grounds that the testimony does not show the desertion to have been either willful or obstinate, but that the proofs do show that the separation between the parlies was a voluntary one. 1 find that the master has correctly recited and reported the testimony of the witnesses, hut I am unable to agree with his conclusion.

He states that the parties had quarreled twice before their final separation, about the 20th or 21st of June, 1921; that these quarrels were years apart, and that on these occasions the petitioner had gone to the defendant and prevailed upon him to effect a reconciliation, and that they thereafter lived together until they finally separated as stated.

Petitioner was in the hotel business in East Orange and the defendant was employed by her at a regular salary. lie apparently thought that he was a partner in the business. About the date of the separation the parties had some trouble over the manner in which the defendant had treated some of the guests in the hotel. Defendant became very angry, threatened to leave petitioner, and that thereupon she told him that “he could do as he chose about it, that it was up to him to stay or leave, as lie wished.” Defendant left and, subsequently, started suit against the petitioner in this court for the purpose of establishing his right as a partner in her business, and in this effort he was unsuccessful. This litigation terminated by a decree which was filed on March 9th, 1922. Pending this litigation defendant made no effort to be reeonciled to the petitioner or to return and live with her, except on one occasion, when he called at the hotel, forcing his way into the house, admission to which had apparently been denied him. The petitioner then states that “I asked him to leave quietly and in a peaceful manner, and that if he didn’t do so I would be forced to ’phone the police.” That the defendant attempted to prevent her from telephoning for the police; that he seized her, threw her across the hall and tore off the telephone receiver, but that she did succeed in sending her communication,, and an officer came to the hotel and arrested the defendant. She preferred 'the charge of assault and battery against him, but did not press the charge on the advice of her counsel, because the magistrate had placed her husband on parole in the custody of his counsel, conditioned on his removing his effects from the premises and staying away from his wife, and all she wished was to be left alone so that she could properly carry on her business.

The separation between the parties thereafter continued and resulted in the filing of the petition in this cause. The master concluded that because -the petitioner had made no effort to induce her husband to return to live with her, that therefore his separation from her was not obstinate and against her will, but was one with which she was entirely satisfied. The master does not state, however, that the defendant made no effort, from the time he left petitioner in June, 1921, to be reconciled to her, or to have her resume her relations as a wife to him. It is true that when he left she told him he could do as he pleased. That statement ivas made admittedly at a time when she ivas angry with him because of his discourteous treatement- of the patrons of her hotel, which she feared might result in injury to her business. Instead of waiting until his wife had gotten over her anger and had probably felt differently toward him, and then making any effort for a reconciliation, he instituted suit against her and asserted a claim of a partnership with her and of an interest in her business, property and income. This claim, of course, she contested, and did so sucessfully, and he must have known that his claim was without foundntion, in view of the fact that he had been her salaried employe for years; and while this suit was pending, and the only time he returned to their home, he again made such a disturbance and so grossly assaulted her that she was compelled to have him arrested. The view might be taken that he could not thereafter call on her without violating the terms of the parole which the police magistrate had imposed upon him, but such condition would not prevent him from writing her or communicating with her through mutual friends for the purpose of establishing the resumption of the relation as man and wife, and this he never did.

Under all the circumstances, I find no obligation resting upon the petitioner to make overtures to have the defendant return and live with her as her husband. As I have stated, she has done so on two occasions prior to 1931. Thereafter, when he falsely asserted an interest in her business, assaulted her and treated the guests of her house in such a manner that it was likely to cause her serious loss and injury, there was certainly no duty resting upon her to make overtures to have, him return, nor can her failure so to do be said to amount to an acquiescence in the separation, or a willingness to have the defendant live apart from her, particularly where defendant made no overtures himself to put an end to the separation.

On the entire case my conclusion is that the petitioner by her proofs has fully and clearly established the charge of desertion contained in the petition, and that the exceptions should be sustained, and that a decree should be granted the petitioner.


author: Buchanan, V. C.

text:
    Edmund A. Hayes, complainant, v. Anna Thomas et al., defendants.
    [Decided August 7th, 1924.]
    Conveyances — Bill to Quiet Title — Complainant in Possession— Defendants' Claim of Undivided One-half Interest — Administrator’s Deed — Possible Equities.
    On final hearing.

      Mr. Irving Iloagland, for the complainant.

      'Mr. Ephraim Cutter, for the defendants.
   Buchanan, V. C.

Complainant’s bill is to quiet title. Defendants’ answer disputes complainant’s right to maintain the bill, by .denying that complainant is in possession of the lands in question. The lands in question are building lots, and it appear^ from the evidence that subsequent to the deed to complainant, he has in fact been in actual possession by his agents or licensees, who have stored and maintained lumber thereon. This possession lias been peaceable, and all the other statutory jurisdictional requisites are admitted.

My determination on the preliminar]' question is therefore that complainant is entitled to maintain his bill.

Defendants lay claim by their answer to ownership of an undivided one-half share of the lands, and have also filed counter-claim for partition of the tract between themselves and complainant.

Complainant claims title to sole ownership of the lands in question (the lands remaining of the original tract after mesne conveyances of parts thereof), by deed of January 19 th, 1922, from the executors and trustees under the will of Marianna W. Manning, deceased, which deed conveyed to complainant all the right, title and interest in and to- these lands of which the said Marianna Manning died seized.

The main issue is as to the extent of Marianna Manning’s ownership at the time of her death. Admittedly she was, and complainant now is, seized of at least an undivided one-half. Admittedly if she was seized of the whole, complainant is now sole legal owner of the whole, and defendants have no legal title to any part. The determination of this issue rests upon the effect of four deeds, to wit:

1. William 11. Quackenboss, administrator of Laura N. Ford, deceased, to Anua Thomas, dated September 19th, 1910; recorded Ocloher 17th, 1910.

2. Anna Thomas et ux. to Marianna W. Manning, dated September 19th, 1910; recorded January 18th, 1.911.

8. William 11. Quackenboss, administrator of Laura N. Ford, deceased, to Anna Thomas, dated September .19tli, 1910; recorded February 8th, 1911.

4. Anna'Thomas et ux. to Marianna W. Manning, dated April 27th, 1912; recorded April 29th, 1912.

Prior to these deeds, admittedly Laura N. Ford and defendant Anna Thomas were each seized of an undivided half. Each of the four deeds expresses conveyance of an undivided half.

The first of these deeds recited a sale by the administrator under an order of the Middlesex orphans court, and a subsequent order of that court confirming the sale and directing the execution of the deed. Under the provisions of P. L. 1910 ch. 73; 4 Comp. Stat. p. 4688 § 39, there should have been “endorsed on or added to” this deed of conveyance a certificate to the effect “that the deed contains a recital setting forth the names of all the complainants or plaintiffs and defendants named in the decree, execution or order” by virtue of which the sale was made. Such certificate was omitted from this deed, and complainant contends that the deed was therefore ineffective to convey. With this contention J am unable to agree.

The statute referred to does not expressly or by implication make a deed invalid for want of the certificate. To warrant any such construction of the statute, the legislative intent should be quite clearly implied. The mere fact that no other penalty — -no penalty whatever — is provided for noncompliance, is certainly insufficient to justify such an addition by implication.

Section 83 of the Orphans Court act empowers the orphans court to order the administrator to sell lands. Section So of that act empowers that court to confirm the sale and to direct the administrator to execute a good and sufficient conveyance of the lands so sold. Section 94 provides, inter alia, that any deed or conveyance made in pursuance of the order of confirmation shall be good and valid, and that such deed shall vest in the purchaser the estate of the intestate. These are the statutory provisions which determine whether or not title passed under the deed in question.

It may be noted that section 94 of the Orphans Court act also directs that certain recitals be made in such administrator’s deed, but also provides that omission of these recitals shall not invalidate the deed. The provisions as to recitals are merely directory; they relate to the form of the deed, but do not affect its substance. Stryker v. Vanderbilt, 27 N. J. Law 68. Moreover, in refutation of the contention that the omission of the statutory certificate renders the deed invalid, reference may be made to the opinion of Chief-Justice Beasley, speaking for the court of errors and appeals, in Meyer v. Patterson, 28 N. J. Eq. 239, which holds that a sheriff has no authority to appoint by parol a special deputy to make a sale, and that a sale so made is invalid where immediately and directly attacked, but proceeds with the positive statement that “the sale would have transferred good title if not attacked directly and immediately in this way;” the title could not be collaterally attacked.

Whether or not title passed under the deed now in question depends therefore', under section 94 of the Orphans Court act above mentioned, upon whether or not it was made “in pursuance of the order of the court confirming such sale.” No evidence of such order oí confirmation, was produced at the hearing. The deed recites such order of confirmation, but there is, at least, doubt that such recital is prima facie evidence of the fact, Baeder v. Jennings, 40 Fed. Rep. 199. However, counsel states that such order of confirmation was duly made, and leave may be given, under the rules, to supply this record evidence, which may be done by a certified copy of the order, under section 93 of the Orphans Court act.

Assuming, then, that the evidence of the order of confirmation is duly supplied, the deed which we have been considering passed a legal title in an undivided half of the premises, to Anna Thomas, which added to the undivided half she already owned, gave her the whole.

Deed No. 2, from Anna. Thomas and her husband to Marianna W. Maiming, then vested in the latter an undivided half, leaving the other half in Anna Thomas.

Deed No, 3, between the same parties as deed No. 1, purports to convey an undivided half. It contains a recital, as follows: “This conveyance being made in order to comply with the law (N. J. P. L. 1910 ch. 73 p. 109), and in lieu of the former conveyance bearing even date herewith, and recorded in book 463 of deeds, at page 37, &c., in the Middle-sex county clerk’s office, and which said conveyance omitted the certificate required by said act and supplied hereon.”

The legal effect of this deed as a conveyance of any title to the premises, was, of course, nil, in view of the fact that» deed No. 1 had operated already to pass title to all of the intestate’s estate. It left the title to the property precisely as it was after the execution of deed No, 2.

Deed No, 4 is between the same parties as deed No, 2, and purports to convey an undivided half. It contains this recital: “The undivided one-half of said lands, hereby conveyed, is the same conveyed to the said Anna. Thomas by William H. Quaekenboss, administrator of Laura Ford, deceased, by deed dated September 19th, 1910, and recorded in said [Middlesex county] clerk’s, office, February 9th, 1911, in book 468 of deeds, at page 190” — to wit, deed No. 3.

It seems clear, therefore, that deed No. 4 conveyed nothing, since it purported to convey what deed No. 3 conveyed, and deed No. 3 conveyed nothing.

Legally, then, after these four deeds, the title was vested one-half in Mrs. Thomas and one-half in Marianna W. Manning. ' Concededly there was no change thereafter up to the time of Marianna W. Manning’s death, in so far as the premises now in question are concerned (which are only a part of the tract thus owned by Mrs. Thomas and Miss Manning as tenants in common, they having sold off some lots prior to Miss Manning’s death).

Under legal principles, therefore, Mrs. Thomas has good title to an undivided half of the present tract. Are there any equities estopping her from asserting the same as against complainant ?

I am unable to discover airy. The burden of proof would, of course, be on complainant to establish them.

Complainant testifies that at 'the time he took his deed he had no idea that Mrs. Thomas had, or claimed, any interest in the lots; that although he had been told by his grantors' (the executors and trustees under Miss Manning’s will) that there was some uncertainty as to her title, so- that they would give deed only for “all her right, title and interest,” he be-, lieved the uncertainty arose at a point much earlier in the chain of title; that his conclusion as to' the four deeds, which we have heretofore particularly considered, was that the title to the whole was thereby vested in Miss' Manning, and that any other result therefrom never even occurred to him.

- I believe this testimony, although I confess that the evidence of these four deeds would have suggested to my mind the probability, or, at least, the possibility, that the intent of the parties thereto was that Mrs. Thomas and Miss Manning should each own a one-half interest. It is, of course, dear that they regarded (as did complainant) deed No. .1 as void, and it might well he held that their acts, showing that they had such belief, gave rise to complainant’s belief were a representation to him that deed No. 1 was void. Such a representation would seem to be -as to a conclusion of law. but assuming that it was a representation of fact, and assuming that Mrs. Thomas’ acts in connection with these four deeds constituted negligence which would suffice to raise an equitable estoppel against her in favor of complainant, if the other necessary elements of such estoppel were present; the difficulty is that the other necessary elements are not present.

Complainant does not testify, nor is it even argued in his behalf, that he would not have purchased Miss Manning’s interest at the price he paid, if he had known that it was only an undivided half share. The evidence is rather' to the contrary, for he testified that he bought it by way of speculation, because he thought he could make some money out of it at the price; he paid only $300 for Miss Manning’s interest, and the uncontradicted testimony is that the tract as a whole (twenty lots) were worth $200 each at the time cf complainant’s purchase and at the present time. Even if this testimony were discounted seventy-five per cent., it is evident that complainant has not been damaged by his purchase.

Moreover, there was evidence of record, of which complainant is chargeable with notice, that Mrs.- Thomas claimed a one-half interest in these lands after the four deeds mentioned, for she and Miss Manning together sold off twenty-two lots of the original forty-two and executed general warranty deeds therefor, which were of record at the time of complainant’» purchase. 1 think complainant would be bound by constructive notice of these deeds, under the recording acts, since they operated to reduce the area of the lands as conveyed to Miss Manning; but he testifies that he had the title searched before be bought, and his agent who made the search must necessarily have had actual knowledge of these deeds in order to determine how much land would be conveyed to complainant on his purchase, and complainant is, of course, bound by such knowledge or notice of his agent.

It results that (upon the supplying of the record evidence of the order confirming sale hereinbefore mentioned) there must be a decree on the complainant’s bill establishing the title in him and in Miss Thomas as tenants in common of the premises in undivided one-half shares.

It likewise results that defendant is entitled to decree for partition on her counter-claim. The evidence shows the property’ susceptible of actual partition, and decree will be made accordingly.

Each party being successful in -part, no costs will be awarded either.


author: Buchakan, V. C.

text:
    Harry Vine et al., complainants, v. Robert W. Kennedy Company et al., defendants.
    [Decided August 7th, 1924.]
    Contracts — Building—iMechanics' Liens — Contractor’s Liability to Finish Work Without Reference to Owner’s Defaults— Amounts Due Stop-notice Claimants — Priorities of Stop-notice Claimants.

      Mr. Martin P. Devlin, for the complainants.

      Messrs. Geraghiy & Weelans, for the defendant Sweeny.

      Mr. 'James J. McGoogan, for the defendants Watson & Company et al. .

      Mr. Linton Satterihwaite, for the defendants Tattersall Company et al.

      Mr. WiÜimn Cooper, for the defendant Independent Brick Company.

      Messrs. Josephson & Josephson, for the defendants Max Williams et al.

      21r. Philip 21. Chamberlain, for the defendant William Cooper.
   Buchakan, V. C.

Complainants, owners of a recently erected pair of houses, being sued, by several stopmotice claimants and by the contractor Sweeny, filed bill in the nature of interpleader, tendering payment into court of the sum of $1,284 (which they admitted to be clue from them to the contractor) and such additional sum, if any, as might be determined to be due from them to the contractor. After the proofs at the hearing they admit liability of $1,424.

The first issue (there being no contest as to complainants’ right to relief) is as to the amount for which complainants are liable. The contract (which, with the specifications, was duly filed under the Mechanics’ Lien act) binds Sweeny to erect the two houses for complainants, for which they were to pay him $12,600 in four installments, as follows: (1) $2,000 -when first floor joists are on; (2) $3,000 when tile roof is on; (3) $3,000 when plastering is done; (4) $4,600 when buildings are completed.

There is a further clause that “If the owners do not have the $3,000 for third payment, the said Frank L. Sweeny will have to furnish the same by getting someone to take a ($7,600) mortgage on property unless owners can get same.”

The contract, which is on a printed form, contains no other unusual provisions. No architect rvas named therein (nor intended so to lie), so that the printed provisions as to the architect are surplusage. The contract was made April 21st, 1922, and specified October 1st, 1922, as the date when the house should be completed.

The first and second payments were made: the third payment was not made. It is not seriously disputed that it became due and payable, though there is a conflict as to just when it became due. There is no doubt in my mind but that it was due on October 1st, at least. On October 7th the contractor abandoned the job, as he himself admits (although he, of course, claims he was justified in so doing). Complainants, oil October 19th, proceeded to have the houses completed by others, and paid therefor (omitting payments for some minor alterations and extras) $6,226. Deducting this from $7,650 (the $7,600 unpaid under the contract, plus $50, which they say they agreed to pay Sweeny for drawing the plans), leaves the $1,424, which they admit to be due.

It is, of course, undisputed that, unless'Sweeny had legal justification for abandoning the contract, complainants were entitled to have it completed by others, and (as against Sweeny, at least) to deduct the reasonable cost thereof from the unpaid balance of the contract price. Herein lies the crux of the case.

There was considerable argument as to the clause about raising the $7,600 on mortgage, but I am unable to see that •this is of any great materiality. Whether or not it ever was Sweeny’s duty to procure a mortgage for complainants, the proofs show that he did procure two parties able and willing to make the mortgage loan — first, the Hanover Trust Compaiw, and secondly, after being1 told by complainant they preferred a private individual as mortgagee, a client of Dickinson & Company. Complainants, after finding that they would be required to pay the usual broker’s commission to Dickinson & Company, went back to the TIanover 'Trust Company. Sweeny performed all that the contract required him to do in this behalf.

The important question is whether or not Sweeny was legalty justified in abandoning the job on .October 7th.

The evidence is conflicting as to the occurrences that took place at that time. The contract required the owners to make a payment of $3,000 when the plastering was done. I am satisfied from the entire evidence that on October 1st (and probably for a little while before that) the progress of construction had substantially reached that point.

A few square feet of one wall in the bathroom in each house remained unplastered, but it appears that this was customary, and was done so as to permit certain work to be done by the plumbers. The “dashing’’ of a cellar wall had not been done, nor certain outside stucco work, but these were not part oí what is meant by builders as “plastering.” Moreover, a little of the trim had been put on in one house, and most of it in the other, so that in this respect it had progressed beyond the plastering. Complainants, who were foreigners and unfamiliar with building, evidently had too literal an idea of the meaning of “when the plastering is done,” and thought that Sweeny was not entitled to the $3,000 as long as the unplastered holes in the bathroom wall remained and the dashing and stucco was not completed, and from this arose some argument between them and Sweeny as to his being entitled to the $3,000.

It further appears by Sweeney’s own admission that for some time prior to October 7th he had been proceeding very slowly with the work. He says this was because the owners had been dilatory in making the prior pajonent (which was not contradicted). On October otli, Philip Vine, as attorney for the owners, wrote Sweeny a letter that “unless you resume active work” on the buildings and “complete same very soon” (the contract date for completion was October 1st), the owners would have the work completed by another contractor and charge loss or damage to Sweeny. Sweeny admits getting this letter on October Gth.

This was the situation on October 7th, On that day Sweeny says he asked Vine (one of the owners) “what he was going to do about some money; I thought it was time to come through. They said they were not going to pay any until I was done. * *. * When they told me they were not going to paj' me any money I quit.” After that date lie did no more work. And. at another point in the hearing, Sweeny said, “Mr. Vine told me he wasn’t going to pay me no money till the job was complete,” and that was the reason Sweeny didn’t get lien releases for the intending mortgagee. Chris Wagner, a workman then and now in Sweeny’s employ, also testified that Vine asked him (Wagner) “a week or so before we quit” why Sweeny didn’t go ahead with the job, and said “he would pay him the money when he gets the work done, what was coming to him,” that he would pay him when “the whole job was completed.”

On the other hand, Berkowitz, one of the owners, says “I asked Sweeny what’s the matter. He said he wanted the other $3,000. We said we would give it to you near time it is due. He said, To hell with the houses” he was mad at that time; that is the way he went out.” Vine, the other owner, says that a day or two before Sweeny quit he had a conversation with him, Sweeny asking for the $3,000 payment, and he (Vine) saying that it wasn’t due yet, and that Sweeny had agreed to get the money (evidently referring to the clause as to procuring a mortgagee), and further reminding Sweeny that in the negotiations for the contract they had told him that they had only $5,000, and hence he would have to wait for the. balance of the contract price until the job was completed, which resulted in the insertion of the clause for the third payment of $3,000 and the clause that Sweeny should procure the mortgagee. Sweeny replied, “If I don’t get any money I’m going to quit.” A day or two later (Vine testifies) he said to Sweeney that he would give him enough money for men and materials for the few days until Sweeny could furnish lien releases to the intending mortgagee, so that Sweeny could proceed with the work; that Sweeny replied he didn’t need it, “but when I went he said T want $3,000; that was the last thing. I seen I couldn’t, do nothing with him.”

I am satisfied that the owners did not tell Sweeny that they would not pay him the $3,000 or would not make any further payment until the houses were completely finished. .It is unlikely that they would tell him such a thing in the face of the explicit contract provision, and in. view of the fact that they were then engaged in obtaining the mortgage loan so1 that they could pay the $3,000. I have no doubt (particularly after having seen Vine and Berkowitz and heard them speak — they speak English fairly well — but, naturally, quite differently from persons American born) that they told him they wouldn’t pay him until the plastering was completed (they believing that it was not yet completed), and Sweeny mistakenly understood them as refusing to pay till the whole construction job was completed. Whether the fault -for this misunderstanding rests on the owners or on Sweeny I cannot say — the evidence is insufficient to disclose this. But Sweeny is, as to this phase of the case, in the position of a party plaintiff, seeking to recover a contract payment, and the burden of proof is upon him to establish his right to it, to establish that his failure to perform himself was due to the fault of the other party. The stop-notice claimants also stand in Sweeny’s shoes. Sweeny (and these claimants) have failed to establish that Sweeny was legally justified in abandoning the contract on October 7th.

The law in this state was settled by the court of errors and appeals in Blackburn v. Reilly, 47 N. J. Law 290 (at p. 308), that in ordinary continuing or installment contracts “defaults by one party in making payments or deliveries will not release the other party from his duty to- make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract or a design no longer to he bound by its terms,” and the opinion goes on to point out that the party complaining of a breach may sue for damages for such breach.

That case was a case of contract for sale, with installment deliveries and payments. So, also, was Empire Rubber Manufacturing Co. v. Morris, 77 N. J. Law (at p. 501), where the same principles were reiterated by the same court; but I can see no distinction, between such contracts and the one now sub judice which would prevent the applicability of these principles in the present case. In this building contract the promises of the owners to make the installment payments are entirely independent of the promise of the contractor to perform and complete the work. It was open to Sweeny to sue the owners for the $3,000 payment, but their breach in that behalf did not evince an intention to abandon the contract and no longer to he hound by its terms, and hence did not justify refusal of further performance on his part.

In Potts v. Point Pleasant Land Co., 49 N. J. Law 412, the rule was by the Supreme Court deemed applicable to a somewhat similar contract, where one party agreed to grade certain lands and the other party was to make monthly payments. The court pointed out that the covenants were independent of each other, and hence that a failure to make payment, although it was evidential in arriving at a determination as to whether the owner had evinced an intention to abandon the contract, was not in itself an abandonment.

Moreover, it seems to me that the express terms of the present contract lead to the conclusion that the parties did not. intend that a breach by the owners in an installment payment should justify cessation of work by the contractor. For bjr the “fourth” paragraph thereof it is specifically provided that “should the contractor, at any time during the progress of said work refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have power to provide materials and workmen, after three days’ notice in writing being given,' to finish the said works, and the expense shall be deducted from the amount of the contract.”

This clause malees no exception or excuse in favor of the contractor for default by the owner in payment of a matured installment.

Not only did Sweeny quit the job on October 7th, and fail to supply a. sufficiency of workmen and materials in response to the notice of October 5th received by him on October 6th; there was a further conversation and arrangement between him and Vine, the attorney for the owners. Sweeny fixes this as on October 13th; Vine says it was a few days earlier. Taking Sweeny’s own testimony, he (Sweeny) made no mentiofa to Vine of the latter’s letter of October 5th; no denial of its accusations. He says Vine told him that the Hanover Trust Company (the intending mortgagee) had “the papers,” and that Harry Heher (the trust company’s attorney) had the searches, and that the. money (the mortgage loan) would be coming in inside of a week. ami asked him if he wouldn’t go back and resume work. “I said ijf what he told me was true, I would go back to work on the following Tuesday” (which would have been October 17th). lie did did not go back to work on that day. The reason he gives is that he went to the Hanover Trust Company on October 14-th, “and there was no papers there.” ’This, of course, is merely hearsay testimony from Sweeny; he produced no competent evidence to' show that “no papers” were at the Hanover Trust Company. The evidence is to the contrary, from the testimony of Mr. Vine (the attorney) and Mr. Dugan, the vice-president of the Hanover Trust Company.

My conclusion is therefore that complainants were justified in proceeding to have the work completed by others, which action they took on October 19th, by engaging Mr. Teitz to do the job, and are entitled to charge against Sweeny the fair and reasonable cost of such completion.

The actual cost of that completion was $6,220, and I am satisfied from the evidence that this was not other than a fair and reasonable price. The arrangement between complainants and Teitz was on a cost plus ten per cent, profit basis, and it was argued that this was not a proper or reasonable arrangement; that complainants should have asked for bids at a contract price. The arrangement made was not unfair or unreasonable, if Teitz was honest and capable, and be impresses me as such. Moreover, complainants testified that they had asked for and obtained bids for a contract price, but thought they were too high, and hence adopted the other course.

Another question is raised by the stop-notice claimants. As has been said, on or prior to October 1st, Sweeny became entitled to a payment of $3,000 from complainants, and could have sued complainants for that sum ancl recovered. Of course, as against Sweeny, complainants are entitled to1 set-off the cost of completion against this $3,000 (as well as against the final $1,600 installment, which had not accrued, due to Sweeny). But are they entitled so to do-, as against the stop-notice claimants? If they are, then the fund available for distribution to the stop-notice claimants is only $1,424 (as hereinbefore set forth); if they are not, then the fund is $3,000.

(It should be added here that in arriving at the balance of $1,424, supra, determination was necessarily made of another disputed question of fact, namely, the amount agreed 'to be paid by complainants to Sweeny for drawing the plans. They said $50; Sweeny said $320. The burden of proof being upon Sweeny, the issue was resolved against him.)

That the stop-notice claimants' (whose combined claims exceed $3,000) are entitled to the $3,000, instead of only $1,424, as contended by complainants, seems to me definitely determined by Stone Post Co. v. Corcoran, 80 N. J. Law 549; approved and followed unanimously by the court of errors and appeals in Moorestown Supply Co. v. Burns, 91 N. J. Law 609. Sweeny is, of course, liable to complainants for the excess of $1,576.

AYe come now to the question of priorities among the stop-notice claimants. The notice of the Williams Metal Ceiling Company was the first one served. This claim must be rejected. the stop-notice claims $300 as the amount due. That this was in fact time, the evidence is insufficient to substantiate. Sweeny denies it, and the burden of proof is, of course, upon the claimant.

The next notice served was that'of William Cooper, whose claim is $200. The only argument made against this claim is that there was no evidence presented of a demand and refusal preceding the service of the stop-notice. The $200 was the balance of a total contract price of $300, of which $100 had been paid. Cooper testified that when the $100 was paid the whole $300 was due; that Sweeny said he was pinched and promised to pay the other $200 when he got the $3,000 payments from complainants. I think that this is sufficient evidence of a demand and refusal under the authorities, and this claim will be allowed.

The next claims are: Watson & Company', $1,192.59; Kennedy Company, $954.87; Henry R. Fell Company, $327, and Independent B'rick Company, $573. There is no dispute either as to the validity or order of priority of these claims, and, inasmuch as they exceed the $3,000 fund, there is no necessity to consider further claims.

Costs should he allowed, out of the fund, to the successful claimants only. Costs will he allowed to complainants against the defendant Sweeny, as well as decree for the $1,576 excess above mentioned.


text:
    Gilbert Combs Company, complainant, v. Samuel Kutliroff and Louis Kutliroff, defendants.
    [Submitted July 28th, 1924.
    Decided July 30th, 1924.]
    Conveyances — Alleged In Fraud of Creditors — Bill to Set Aside— Proof of Fraud Absent.
    On bill, &c.

      Mr.. Hoisted- II. Wainright, for the complainant.

      Mr. Max Feingold, for the defendants.
   Foster, V. C.

Complainant, a judgment creditor of the defendant Samuel Kutliroff, seeks to have set aside, as in fraud of creditors, two deeds made by Samuel Kutliroff to his brother, the other defendant, Louis Kutliroff.

The first deed, dated December 20th, 1921, but acknowledged and recorded on December 29th, 1921, conveys an undivided one-half interest in a certain farm property in Millstone township, in Monmouth county. The second deed, dated December 1st, 1922,- and recorded the following day, conveyed the remaining undivided half interest in the farm from Samuel to Louis. At the time' of these conveyances, Samuel was indebted to complainant for building material, &c., in the sum of $.2,281.56; payments were made on account of this indebtedness, which reduced it to $1,511, for which amount complainant obtained judgment against Samuel in March, 1923, about fifteen months after the date and recording of the first deed, and about four months after the recording of the second.

Defendants lia\e shown that the. consideration for those conveyances paid by Louis was the cancellation of a $1,700 mortgage, the assumption, or acceptance of the conveyance subject to a federal land bank mortgage for $1,600 and $1,000 in checks which were duly paid to Samuel, and cash for $204.

There is no proof in the case contiadieting this evidence, except the fact that each deed contains a canceled revenue stamp for fifty cents only. The attorneys who drew the deeds are unable to recall why stamps of this denomination were used.

In the absence of any proof showing fraud, or that these conveyances, or either of them, were made for the purpose of defrauding Samuel’s creditors, and particularly the complainant, the hill must be dismissed.


author: Buchanan, Vice-Ordinary.

text:
    In the matter of the estate of Charles M. Freeman, deceased.
    [Decided August 16th, 1924.]
    Wills — Probate—>Lack of Capacity — Undue Influence.
    On appeal of Harry Hohring. On final hearing.

      Mr. Theodore Strong and Mr. William H. K. Davey, for the appellant.

      Mr. Thomas Brown, for the respondent Mary E. Wilkins" Freeman.

      Messrs. Russell B. & A. Dudley Wataon, for the respondent Sally Freeman.
   Buchanan, Vice-Ordinary.

This is an appeal from, a decree of the Middlesex conntv orphans court, denying probate to a paper-writing (dated July 12th, 1923) offered for probate as the last will and testament of Charles Manning Freeman, deceased, that court having reached the conclusion from a careful consideration of the very voluminous testimony and other evidence that the testator lacked testamentary capacity at the time of the execution of the document sub judice.

The facts and the reasons resulting in this conclusion are set forth at length in the opinion filed by Judge Kirkpatrick, and, inasmuch as the conclusion of this court, after reviewing the evidence and proceedings, coincides with that of the orphans court, so far as concerns the point mentioned, thevr need not here be reiterated.

I do not, however, desire to be understood as concurring in the conclusion of the court below that the proponent sustained the burden of proving absence of undue, influence.

The case is one in which the costs of appellant and respondents should be paid from the estate.


text:
    POWER AND CHEMICAL EQUIPMENT COMPANY, A CORPORATION, PLAINTIFF-APPELLEE. v. GUSTAV GRODENSKY, DEFENDANT-APPELLANT.
    Argued February 19, 1924
    Decided July 15, 1924.
    Contracts' — Allege Breach — Time of Payment of Purchase Price Under Contract in Dispute — Finding of Facts by Trial Court —Grounds for Appeal Ail Relate to Such Findings Not to Points of Law or of Evidence.
    Before Justices Kalis cn, Katzenbach and Lloyd.
    For the defendant-appellant, Karkus & Karkus (Jacob 8. Karkus, of counsel).
    For the plaintiff-appellee, David T. Wilentz.

   Per Curiam.

The defendant below appeals from a judgment of $400 rendered by the Perth Amboy District Court. The action was instituted to recover damages for the breach of a contract for the-sale of a boiler. The state of the case settled by the parties, through their respective attornej'S, shows that on August 21st, 1923, one Edward D. Grasso called at the place- of business of the defendant and claimed to have purchased a certain boiler, owned by defendant, for $200; that it was agreed that the plaintiff was to send the defendant a check therefor not later than August 23d, 1923, and that the defendant was to retain possession of the boiler until paid for. The check was sent within the time agreed upon and was returned by the defendant, who had sold, on August 22d, 1923, the boiler to the Kimberly Phonograph Company for $325. The plaintiff subsequently bought the same boiler from the Kimberly company for $600. The defendant testified that the boiler was to be paid for on the afternoon of the day of purchase, August 21st, 1923. This testimony presented a disputed question of fact. The District Court found that the defendant did sell the boiler to the plaintiff for $200; that the check was sent, and that no stipulation was made to the effect that in the event of the failure of the plaintiff to pay for the boiler on the afternoon of August 21st, 1921, the contract should not be binding. The court also found as a fact that the mrket value of the boiler on the day of purchase was $000. The state of the case reveals but one exception, which was entered to the admission of a receipt for the purchase of the boiler given by the Kimberly company to the plaintiff. This is not one of the ten specifications of the determinations of the District Court with which the appellant is dissatisfied. Of the ten grounds of appeal there is not one which is based upon any exception to the findings of tire District Court or to the rulings of the District Court upon points of law or upon the admission or rejection ^of evidence. They all deal with the findings of fact made by the District Court. It is well settled that, upon an appeal from a judgment of the District Court, this court will not review the findings of fact made by the District Court, beyond ascertaining whether or not there was evidence to support such findings. Resky v. Meyer, 119 Atl. Rep. 97; Loveland v. McKeever Bros., 90 N. J. L. 704. The appeal is confined to questions of law. Pratt v. Union National Bank, 81 Id. 588.

The first point argued by the appellant is to the effect that there was no mutuality in the contract, _and that there was a mistaken identity of tire party contracting with the defendant. The question as to whether or not there was mutuality in the contract was not raised in the court below. There is therefore no ruling of the District Court upon this question which can be considered in this court. On the question of tire so-called mistaken identity of the plaintiff, the contention is that Grasso did not inform tire- defendant that he was acting for the plaintiff, the Power and Chemical Equipment Company. The District Court, in effect, found as a fact that Grasso was acting as the agent of the plaintiff. There was evidence which justified this finding. .Grasso so testified. This finding of fact will therefore not be disturbed, as there was evidence to support it.

The second point argued upon the appellant’s brief is that negotiations only were had between the parties. This is, in effect, an attempt to revise a finding of fact made by the lower court, as the court found that the plaintiff and defendant had (altered into an agreement for the purchase of the boiler. Under the evidence this finding will not be disturbed.

The third and' last contention briefed is that the court found the market value of the boiler without evidence. There was evidence of market value. The boiler had been sold twice, as appeared by the state of the case, subsequent to the purchase by the plaintiff. The amounts it brought at these sales was some evidence of value. It was sufficient evidence upon which to base the finding of value made by the District Court. We find this contention of the appellant without merit.

The judgment of the District Court, is affirmed, with costs.


text:
    MINNIE LAWRENCE, PLAINTIFF, v. JAMES FALLS, TRADING, ETC., DEFENDANT.
    Submitted June 6, 1924
    Decided August 2, 1924.
    Negligence — Motor Vehicle Injury to Pedestrian — Only Plaintiff and Defendant as Witnesses — Statement of Plaintiff Probable — Award Not Excessive.
    On defendant's rule to show cause why plaintiff’s verdict should not be set aside.
    Before Justices Trenchard, Mixture and Lloyd.
    For the rule, John L. Griggs and Charlas fí. 8taller.

      Contra, Mendelsohn & Mendelsohn.'

   Per Curiam.

This is defendant’s rule to show 'cause why a verdict obtained by the plaintiff should not be set aside.

The first point is that the verdict was contrary to the weight of'the evidence.

It appears that the plaintiff, a single woman, at seven p. m., January 24th, 1923, a cold, drizzling and freezing night, alighted from a Newark bound' jitney bus in Clifton at the southwesterly comer of Valley road and Eenner avenue. Valley road runs north and south and is about forty-three feet wide; Eenner avenue runs east and west. It appeared from plaintiff’s testimony that, after having observed that no' vehicles or persons' were on the road other than defendant’s automobile truck, which appeared to be about a block and a half away, she crossed from the westerly to the easterly side of Valley road on the crosswalk, and had already placed her left foot on the curb when defendant’s automobile truck, which was being driven along the Valley road, suddenly, without warning, swerved to the point where plaintiff was stepping on the curb and continued around the corner into Eenner avenue, and in so doing hit and injured the plaintiff. The scene of the accident was lighted by an arc light.

There were no witnesses to• the accident except the plaintiff and the defendant’s driver.

We think it was open to the jury to find reasonably the foregoing state of facts.

The plaintiff’s testimony tends to show 'that she made observations both before starting across and while midway of the road, and her testimony indicates that she had a right to suppose that, if defendant’s car was driven with due care, it would not endanger her at all. Certainly, it cannot be said that plaintiff was guilty of contributory negligence as a matter of law. The testimony tends to show that had defendant’s truck continued straight on down Valley road he would not have struck her; had he not pulled close to the curb he would not have struck her; had he not swerved around the curb into Fenner avenue he would not have struck her. It seems to indicate either that the driver did not look, or, looking, could not see where he was going and what was on file highway. The probabilities are that he tried to look but could not see, because his windshield was covered with sleet. If that is so^ it furnishes a ground for liability. It was, at least, open to the jury to find negligence in going on in such a situation of affairs at this crosswalk.

We are asked to disregard plaintiff’s testimony and accept that of the driver of the defendant. But that we cannot do. His testimony was very improbable. The jury had a right to disbelieve it entirely. His testimony was to the effect that Miss Lawrence, the plaintiff, ran into the rear of his machine, and, colliding with it, was hurt. Our reading of the testimony inclines us to accept her version of the accident as the correct version. But, in any event, it cannot be said that the verdict was against the weight of the evidence.

The only other point is that the damages were excessive. Plaintiff’s verdict was for $3,500. We do not think it was excessive. She was injured in the nose and mouth, four or five teeth ivere loosened, her right shoulder was out of joint, she had contusions of the neck and head, her eleventh and twelfth ribs were broken, her right kidney injured and she suffered from shock. She was a practical nurse earning $40 weekly. She lost sixty weeks. She paid out $569 for doctors and nurses. It, therefore, seems to us that this verdict is not excessive.

The rule to show cause will be discharged, with costs.


text:
    CHARLES A. DEREMER, PLAINTIFF, v. PATRICK J. MACKIN, DEFENDANT.
    Decided July 24, 1924.
    On defendant’s rule to show cause.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the rule, Gross cG Gross.

      Conira, William C. Gebhardt & Son.

   Per Curiam.

The facts are the same as in No. 436 of the February term, 1924. The cases were tried together. In this case the judgment entered by default was $7,453.88 in favor of the plaintiff and against the defendant.

For the reasons stated in No. 436, Scherrer v. Mackin, the judgment entered in this case is vacated.and set aside and a new trial ordered, and upon the same terms.


text:
    MAX KAPNER. PLAINTIFF-APPELLEE, v. ANNA GOLLENDER AND MOSES GOLLENDER, DEFENDANTS-APPELLANTS.
    Decided August 8, 1924.
    Sale of Land — Agent’s Commissions — Alleged Errors of Trial Court — Record Must Show Question to Have Been Raised at Trial — Reasons Relied Upon for Reversal, Therefore, Cannot be Considered.
    On appeal from the First District Court of Newark. '
    Before Justices Kalisch, Katzenbach and Lloyd.

      For the appellants, Abraham Alb own.

    For the appellee, Philip J. Schotland.

   Per Curiam.

The state of the ease, which is before us on appeal by the defendants below from a judgment rendered against them in favor of the plaintiff: in the court below, was settled by the trial judge, and is as follows:

“Plaintiff sues to recover commissions for the sale of real estate to defendants to be paid upon the delivery of the deed. Plaintiff had procured a purchaser who signed an agreement to purchase the property of the defendants, by which agreement the vendors agreed with the vendee to do certain repairs. The vendors never did do the repairs as agreed, and the vendee would not take title because of the default of the vendor. Judgment was given for the plaintiff for $230, the amount of his commissions.”

It is apparent that the state of the case discloses no question raised in the trial court as to the legal propriety of any of its rulings.

It has been repeatedly held, in order that alleged error of law may be reviewed, there must be something in the state of the case to show that the question was raised in the trial court. Oliphant v. Brearley, 54 N. J. L. 521; Williams v. Connolly Contracting Co., 74 id. 105.

The reasons relied on by the counsel of appellants and argued in the brief for a reversal of the judgment cannot therefore be considered.

"Where a judgment cannot be reversed upon the grounds specified it is affirmed. Champlin v. Barthold, 82 N. J. L. 13.

Judgment is affirmed, with costs.


text:
    ANTONIO MERANDINO, PLAINTIFF-APPELLEE, v. STEFANO SANTANIELLO, DEFENDANT-APPELLANT.
    Decided August 8, 1924.
    Contracts — Loan of Money — Allegation that Borrower was Acting as Agent for One for Whose Benefit the Loan was Made —Evidence to Support Plaintiff’s Claim.
    On appeal from the Second Judicial District Court of Monmouth county.
    Before Justices Kalis oh, Katzenbach and Lloyd.
    For the appellant, John C. Giordano.

    For the appellee, Harry B. Cooper.

   Per Curiam.

This is an appeal from a judgment rendered in the Second Judicial District Court of Monmouth county, the court, sitting without a jury, in favor of the plaintiff and against the defendant, for the sum of $325, in an action brought by the former against the latter to recover the stated sum which the plaintiff alleged he had loaned to the defendant, to aid him in paying a fine which had been imposed upon Patsy Bampino', his son-in-law, who was in the custody of the sheriff of Monmouth county.

The defense interposed to the plaintiff’s claim, by the defendant, was that in borrowing the money of the plaintiff he was acting as the agent of Patsy Bampino, which fact he made known to the plaintiff at the time the latter made the loan.

According to the state of the case agreed upon between the counsel of the respective parties, there was testimony tending to establish that the defendant borrowed the sum of money sued for of the plaintiff, and agreed to repay the same to him.

The fact that the plaintiff was aware for whom and for what purpose the defendant borrowed the money is of no importance.

The plaintiff testified that he loaned the money to the defendant upon his promise to repay. The defendant’s testimony was- to the effect that he was sent by Patsy Rampino to get the money from the plaintiff for him, Rampino, and that he assumed no personal responsibility for the repayment.

As there was testimony which would support a finding that the defendant borrowed the money and agreed to repay the sum so borrowed to the plaintiff, we cannot properly disturb the court’s finding.

Judgment is affirmed.


text:
    ETHEL C. BUGLASS, PLAINTIFF-RESPONDENT, v. HERBERT F. WEBER, DEFENDANT-APPELLANT.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Contracts — Agreement to Share in Cost of Municipal Improvement Under Specified Pending Ordinance — Ordinance Not Passed but Subsequently Improvements Were Made Under Another Authority — Liabilities of Contracting Party.
    Before Justices Trexohard, Mistturn and Lloyd.
    For the appellant, Mack ay <6 Mackay.

    For the respondent, Maley & Maley.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff in the Third District Court of Bergen county. The action was to recover half of a municipal assessment on property in the borough of Leonia, upon an agreement reading as follows:

“The party of the first part hereby agrees to pay fifty per cent. (50%) of any assessment for the regulating anrl grading of Hillside avenue and Overlook terrace, an ordinance for which is now before the council of Leonia, New Jersey, within ninety (90) days after bill is rendered therefor.”

The plaintiff had purchased the property at the southwest corner of Hillside court and Overlook terrace, in the borough of Leonia, and, as part of the agreement of purchase, the vendor agreed to certain undertakings respecting the buildings on the ground, and made the agreement above recited. The then pending ordinance was never passed, but two years later another ordinance was passed and assessments made thereunder. Construing the agreement as contemplating the payment of an assessment for improvements whenever made, the plaintiff, on receiving the bill, paid one-sixth of the assessment made under' the later ordinance, and brought suit for one-half of the whole assessment upon the undertaking of the defendant.

Construing the agreement as presenting a latent ambiguity, the trial court received evidence of the intention of the parties, and upon the conclusion of the case, submitted the construction of the agreement in writing as qualified and explained by parole testimony to the jury. Whereupon the jury found for the plaintiff, and, on their finding, judgment was entered. We cannot assent to the view taken by the trial court. If ambiguity existed at all, it is upon the face of the agreement and not in its application to any extraneous facts. Any uncertainty of meaning, if there be such, appears in the language of the agreement itself. Being a latent ambiguity, if any, the agreement was for the court's interpretation, and could not be supplemented by evidence of the intention of the parties, nor submitted to the jury. It is true that in cases both within the state and in other states of the union, thq courts will look into the facts and circumstances surrounding the making of an 'agreement as they may exist to clarify the meaning that may be otherwise obscure (Fletcher v. Interstate Chemical Co., 95 N. J. L. 543); but it will never permit the agreement itself to be altered or changed by the conversations of the parties. In the ease before us we think that the agreement is neither ambiguous nor uncertain, but in meaning quite clear. The plaintiff was purchasing a property upon a street on which the improvements had not been made. The seller, as is not unusual, with a desire of effecting a sale, was proposing to pay a portion of those improvements, and in order to identify the character of the improvements and the conditions upon which they would be shared by the seller, stipulated that he would pay for one-half of the assessments within ninety days after the bill be rendered therefor, upon the making of the improvements in accordance with the terms of the pending ordinance. We think the agreement leaves no doubt upon this point. The ordinance and its terms were before the parties; they knew under them the character of the improvements, the materials of which they should be made, and the probable cost. This might, and probably would, vary in a subsequent ordinance and at a subsequent time. We cannot think that the parties contemplated an indefinite promise in the future to share any class of improvements, and at any cost that might accrue in course of time. There is another difficulty in the way of the conclusion reached by the court below. By the terms of this agreement, leaving out the ordinance, if the judgment is to be sustained, it creates an indefinite obligation on the seller to pay, and there is nothing in the agreement to prevent this payment from being repeated as often as improvements might be required. Its language is to pay any assessment, and, leaving out the reference to the ordinance, would read as follows: “The party of the first part agrees to pay fifty per cent, of any assessment within ninety days after bill is rendered therefor.” Such, of course, was not the intention of the parties.

Inasmuch as the ordinance was never passed, no assessment was ever made under it, and the plaintiff was not entitled to recover upon an assessment made under wliat may have been an entirely different ordinance passed two years later. Thus, viewing the fundamental question in the case, it is unnecessary to pass upon another point raised to the effect that the action was premature for any but a small part of the assessment then due.

The judgment will be reversed.


text:
    CATHERINE FALLON, PLAINTIFF-APPELLEE, v. TILLIE V. REYNOLDS, DEFENDANT-APPELLANT. CATHERINE FALLON AND PATRICK FALLON, PLAINTIFFS-APPELLEES, v. TILLIE V. REYNOLDS, DEFENDANT-APPELLANT.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Sale of Land — Installment Payment — Breach of Vendor — Improvements by Vendee Before Breach . Without Order of Vendor — Liability of Vendor — 'Agreement of Vendor to Reimburse.
    On appeal from the Orange District Court.
    Before Justices Minuten, Tbenohaed and Lloyd.
    For the appellant, Palmer & Cooper.

    For the respondent, William Tyaclce.

   Per Curiam.

These two cases were argued together and will be so dealt with here. On the 27th day of May, 1922, Tillie B. Reynolds, and Patrick Fallon and Catherine Fallon, entered into articles of agreement, whereby Mrs. Reynolds agreed to convey to the Fallons, for the consideration therein named, the premises No. 258 Watchung avenue, in the town of West Orange. The agreement called for the payment of $350 as the first installment due upon the consideration of $5,200. After the execution of the agreement and the payment of the $350, the Rations proceeded to have some painting done upon the buildings at an expense of $328. The agreement oE sale was neier carried out by the parties. Thereupon, two suits were instituted by Catherine Fallon, to which later the name of Patrick Fallon was added as a party plaintiff. Both actions proceeded upon the theory that the vendor had defaulted in performance of the agreement, and the deposit money was sought to be recovered by reason of such default, and a specific promise by the appellant to return it and the painting bill on an express promise. The cases were heard by the District Court judge and a verdict rendered for the,plaintiffs, in one ease for the sum of $350 and the other in the sum of $328. From these judgments appeals are taken to this court.

When the plaintiffs rested, the defendant moved for a non-suit on the painting claim for $328 on the ground (J) that the plaintiffs had not actually paid out any money on the painting, and (2) on the ground that it was an act solely for her benefit and not for that of the defendant. The judge refused to grant the motion, and an exception was noted to the defendant. At the conclusion of the cases the defendant moved for a verdict in her favor in the painting claim on the ground that the evidence showed the painting to have been done without the knowledge or consent of the defendant, and without her authority. In the suit involving the return of the purchase-money on the ground that Patrick Fallon had not been joined. At this point the court suggested that Patrick Fallon’s name he added by wav of an amendment, and this was done. To the ruling of the court permitting the amendment, an exception was allowed, but no exception was taken to tile refusal of the court to render the verdict as requested.

There wras evidence in the case which would justify a finding that the defendant, the vendor, had failed to carry out her agreement, and the trial judge so found. Upon this finding the defendant became liable for the return of the purchase-money already paid and for the damages which her breach of contract legally engendered. It is claimed by the plaintiff that the painting bill can be comprised within such damages. It appears from the proofs in the case that the painting was without the knowledge or authority of the defendant, ánd was a purely voluntary act on the part of the plaintiffs in order that they might satisfy the building association which was proposing to make a loan to enable them to carry out their purchase bargain. The damages naturally expected to follow from a breach of contract of this sort are the moneys paid, plus the expenses incurred in effecting the title, and any value in the property beyond that which the purchaser has agreed to pay. , Brown v. Honniss, 70 N. J. L. 260. As the painting item cannot be classified as within any of these consequences of the breach, it would seem to follow that the judgment of the court below in the case based upon the painting obligation cannot be sustained on this ground.

After the painting had been completed, however, there is proof in the case that the defendant was apprised of the fact, and that she promised to “refund the deposit money and pay all expenses.” The only claim to which the expression “pay all expenses” could reasonably refer was the painting item. There was no proof of any other demand except the $350 deposited on the making, of the agreement. As trier of the facts we cannot say that the judge erred in deeming this to be a promise to pay the painting bill. While the painting of the house was a voluntary act on the part of the plaintiff, and no liability must attach by reason of that fact, even though the defendant benefited thereby, it was competent for the defendant to obligate herself to repay it. She was a defaulting vendor, and a promise to pay for painting and materials on her house could be predicated on a release of the vendee’s rights. There is ample proof that this was the case. • The plaintiff’s story was that if plaintiff would sign a paper requesting defendant to take the property back, the defendant would return the deposit and pay all expenses! There was therefore a sufficient consideration for the ¡promise.

The result we reach is to affirm the judgment in each case.