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by the defendants, however, entirely destroy..y of travelers upon the highway, to do someed the probative force of her negative state thing more to warn them of the approach of ment. The credibility of the witnesses who trains than to blow a whistle, or to ring a proved that the bell was rung was not im bell; and it is argued that the plaintiff was peached by any direct evidence; nor does entitled to have that question submitted to the case disclose any reason for rejecting the jury, and to a verdict in her favor in their testimony. In the case of Culhane v. case they should so find the fact. No such New York Central, etc., R. R. Co., 60 N. Y. issue, however, was raised by the pleadings, 133, 137, it is said that “as against positive and a verdict upon any such theory could atfirmative evidence by credible witnesses to not therefore have been supported. the ringing of the bell, or the sounding of a The judgment under review must be afwhistle, there must be something more than firmed. the testimony of one or more that they did not hear it to authorize the submission of the

(74 N. J. La 640) question to the jury. It must appear that

WILSON V. HENDEE. they were looking, watching, or listening for

(Court of Errors and Appeals of New Jersey. it; that their attention was directed to the

March 12, 1907.) fact, so that the evidence will tend to some 1. BILLS AND NOTES—INDORSEMENT BEFORE extent to prove the negative. A mere 'I did DELIVERY-EFFECT-STATUTORY PROVISION. not hear' is entitled to no weight in the

Section 63 of the negotiable instruments act

(P. L. 1902, p. 594) abrogates the rule declared presence of affirmative evidence that the

in Chaddock v. Vanness, 35 N. J. Law, 517, 10 signal was given, and does not create a con Am. Rep. 256, that the signature of a third flict of evidence justifying a submission of party upon the back of a negotiable instrument the question to the jury as one of fact.”

prior to its delivery to the payee creates per

se no implied or commercial contract whatever. Hubbard v. Boston & Albany R. R. Co., 159

(Ed. Note.-For cases in point, see Cent. Dig. Mass. 320, 34 N. E. 459, Keiser v. Lebigh vol. 7, Bills and Notes, 88 542-561.] Valley R. R. Co., 212 Penn, 409, 61 Atl. 903,

2. SAME. 108 Am, St. Rep. 872, and Eissing v. Erie R. Section 64 of the negotiable instruments act R. Co. (N. J. Sup.) 63 Atl. 856 (the latter a de (P. L. 1902, p. 594) deals only with the liability cision of our Supreme Court) are to the

of an irregular indorser to the payee and sub

sequent parties, and does not define the rights same effect. We think this principle is sound and liabilities of several such indorsers as bewhen applied to the testimony of one who, tween themselves. by reason of his surroundings, would be un 3. SAME-EVIDENCE-PAROL. likely to notice the giving of the signal un

Under section 68 of the negotiable instru

ments act (P. L. 1902, p. 596) parol evidence is less bis attention was directed to the passing | admissible as between several' indorsers to show of the train. In the present case the fact that they agreed to become liable otherwise that Mrs. Wilmerton lived in close proximity

than in the order in which they indorsed. to the railroad, and that the passage of

(Ed. Note. For cases in point, see Cent. Dig.

vol. 7, Bills and Notes, 88 1719-1722.) trains to and fro upon it was a matter of

4. FRAUDS, STATUTE OF - PROMISES TO AN. frequent occurrence, renders it quite unlike

SWER FOR DEFAULT OF ANOTHER — AGREEly that she would observe whether a bell MENT BETWEEN INDOBSERS. upon a given train was being rung as it The first of two accommodation indorsers passed along in the neighborhood of her

of a promissory note baving indorsed upon the

strength of a verbal agreement made by the house, unless her attention was attracted to

second indorser, whereby the latter, in con. it at the time. A person who lives in prox sideration that the maker of the note should imity to a railroad where the passage of

place in his hands certain valuable personal trains is frequent becomes so accustomed to

property to secure payment of the note by the

maker, promised the first indorser to indemnify the noise of their passage that he no more him against loss thereon, and the maker having observes the sound produced by them as they furnished the consideration before delivery of move to and fro than he does the striking of

the note, and the first indorser having been

obliged to pay the note to the holder, held, in an a clock in a room in which he is accustomed

action by the first indorser against the second to sit. We concur in the view taken by indorser for reimbursement under the agreethe trial judge that the plaintiff below failed

ment of indemnity, that this was not a promise

to answer for the debt, default, or miscarriage to sustain the burden of proof that was

of another person, within the meaning of the upon her to show that the bell was not rung statute of frauds (Gen. St. p. 1603, § 5, par. 2), in the manner required by the statute. but an original obligation, founded upon a conIt is further contended on behalf of the

sideration of substantial benefit to the promisor. plaintiff in error that there was testimony in

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 23, Frauds, Statute of, $ 54.] the case which would justify the conclusion

5. SAME. that the crossing at which the accident oc Apgar's Adm'rs v. Hiler, 24 N. J. Law, curred was unusually dangerous by reason 812, followed; Hartley v. Sandford, 66 N. J. of the existence of obstructions to the view

Law, 627, 50 Atl. 454, distinguished. in the direction from which the train that

(Syllabus by the Court.) collided with the wagon of the deceased was Error to Supreme Court. approaching, that the defendant company Action by Charles W. Wilson against Harwas responsible for the presence of those ry C. Hendee. From a judgment in favor of obstructions; and that, therefore, it was defendant, plaintiff brings error. Reversed, bound to use extra precautions for the safety and a venire de novo awarded.

Henry S. Alvord and J. Boyd Avis, for and Fisher were partners in business. Hiler, plaintiff in error. Henry C. Bartlett and having been obliged to pay the note, sued the Royal P. Tuller, for defendant in error. administrators of Apgar in the Supreme

Court to recover the amount thus paid, and PITNEY, J. On May 12, 1904, one Walter obtained a judgment against them, which, D. Wilson made his promissory note for $920 upon writ of error, was sustained by this payable to the order of the Vineland Nation court. Chief Justice Green, in his opinion, al Bank. Prior to its delivery to the payee said that apon the face of the note, and in the note was indorsed successively by Charles the absence of extrinsic evidence, Apgar and W. Wilson, the plaintiff herein, and by the Hiler would be regarded as co-sureties, but defendant Hendee, for the accommodation of that it was competent for the plaintiff to the maker. The paper having gone to protest show in what relation the several signers at maturity, the plaintiff was obliged to pay, stood to each other; that their relation to and did pay, the whole amount of it to the each other depended, not upon the form of bank.

the note nor upon whether their names were The present action is based upon an al signed first or last, but upon the character in leged agreement made between Hendee and which they became parties and the agreethe plaintiff prior to the indorsement of the ment or contract made among themselves note by either of them, to the effect that, at the time of signing. “This,” he said, “was if plaintiff would become indorser, Hendee matter in pais, proper to be proved by parol.” would likewise indorse, and would pay the And, though the memorandum “imports note at maturity, and indemnify the plain- prima facie that Apgar and Hiler were joint tiff and save him harmless against all loss securities, it was competent for the plaintiff by reason of his indorsement, in consideration to show whether they were securities for of certain valuable personal property to be Fisher alone or for each other also," citing placed in his hands by the maker. At the cases. And, again: "If the evidence was betrial plaintiff introduced evidence tending to lieved, it showed either that Fisher and show the making of such an agreement, and Apgar were the principal debtors and Hiler that on the strength of it the note was in alone the security, or, if Apgar was security dorsed by the plaintiff ; that before its de for Fisher, still that Hiler signed, not as livery to the bank the maker gave to Hendee joint security with Apgar, and liable with a bill of sale for certain personal property him to contribution, but as security for Apgar of the estimated value of $1,000 as a mort also. He stands to Hiler in the relation of gage to secure its payment; and that Hendee principal to surety. It is clear from the evi. at once took possession of this personal prop dence that in any event Apgar was to stand erty and afterwards disposed of some or all between Hiler and loss. If the jury believed of it. The learned trial justice granted a that the note was the debt of Fisher and nonsuit upon the authority of the decision of Apgar, and that Hiler alone was security, he this court in Hartley v. Sandford, 66 N. J. is entitled to recover from his principals the Law, 627, 50 Atl. 454, on the ground that amount paid for their benefit. *

* If, on Hendee's promise to the plaintiff to indemnic | the other hand, the jury believed that Fisher fy him was within the statute of frauds, as alone was the original debtor and Apgar his being a promise to answer for the debt, de surety, but that Hiler became surety at Apfault, or miscarriage of another person, and gar's request, and upon his promise of indemtherefore

unenforceable because not nity, still the plaintiff was entitled to recover made in writing. It is contended by counsel in this action. The evidence was not offered for the plaintiff in error that the case is not to show an independent contract of guaranty controlled by Hartley v. Sandford, but is against loss, but simply the character in rather within the principle of the earlier which Hiler became a party to the note. decision of this court in Apgar v. Hiler, 24 This, as has been shown, may be proved by N. J. Law, 812.

parol. Nor was the evidence offered to prove In order to determine the controversy, it is a promise by Apgar to pay the debt of a third important to consider precisely what was de person, and which must therefore be in writ. cided in these two cases, and also to note ing. It was designed to show an original, certain changes made in the law of negotiable equitable obligation on the part of Apgar to instruments by P. L. 1902, p. 583, which en refund the money, growing out of the circumactment antedated the making of the note in stances under which Hiler became a party question. In the case in Apgar's Adm’rs v. to the instrument, and consequently liable to Hiler, 24 N. J. Law, 812, there was a joint pay the debt." and several promissory note, payable to the It will be observed that, in this reasoning, order of one Melick, and signed by one Fish the court dealt with two legal rules that had er, by Apgar, and by Hiler as makers. Op been suggested as obstacles to the plaintiff's posite to the names of Apgar and Hiler the recovery. The one was the common-law rule word “sureties” was written by Apgar. Ap that rejects parol evidence of an antecedent gar solicited and procured Hiler to sign the or contemporaneous understanding that tends note as surety, saying, “If you will sign it, to modify the effect of a written instrument. it will be a great accommodation to us, and The effect of this rule was excluded on the you shall never pay one red cent." Apgar ground that the memorandum appearing upon

was

the face of the note did not clearly show the cial contract that was held to arise from the relation of the one surety to the other. The terms of the instrument; for instance, as other obstacle suggested was the statutory between successive accommodation indorsers. rule found in that section of the statute of Johnson V. Ramsey, 43 N. J. Law, 279, 39 frauds (now in Gen. St. p. 1603, § 5, par. 2) Am. Rep. 580; Middleton v. Griffith, 57 N. which declares that no action shall be J. Law, 442, 448, 31 Atl. 405, 51 Am. St. Rep. brought to charge the defendant upon any 617 ; Kling v. Keboe, 58 N. J. Law, 529, 33 special promise to answer for the debt, de Atl. 946; Foley v. Emerald Brewing Co., 61 fault, or miscarriage of another person unless N. J. Law, 428, 431, 39 Atl. 650. In other the agreement shall be in writing, etc. This jurisdictions the rule adopted in this state the court disposed of upon the ground that with respect to excluding parol evidence of the parol evidence was not offered to prove the intent of the parties to a negotiable inApgar's promise to pay the debt of a third strument regular on its face, where such evi. person, but to show his original equitable dence would tend to vary the contract that obligation to indemnify Hiler.

the law merchant implies from the form of Before coming to Hartley v. Sandford, 66 the instrument, was not uniformly adhered N. J. aw, 627, 50 Atl. 454 (which deals only to, it being held in many states tha in acwith the statute of frauds), it will be well to tions between the parties parol evidence was consider whether either the common-law rule admissible to show that they had agreed othor the negotiable instruments act (P. L. 1902, erwise than as would appear from the face of p. 583) excludes the parol evidence upon the note. 1 Dan. Neg. Inst. (6th Ed.) § 717, which alone was rested the proof of the and cases cited; 2 Rand, Com. Paper, $$ 740, agreement for whose breach recovery was 741, 778, 779, and cases cited; Crawf. Ann. sought in the present case. The note in ques Neg. Inst. Law (20 Ed.) 8 118. tion was made by Walter D. Wilson to the In this state of the law our new negotiable order of the bank, and was indorsed by the instruments act was passed. P. L. 1902, p. parties to this suit prior to its delivery to the 583. Prior to its enactment a similar act, bank. As the law stood in this state before or one substantially similar, had een adoptthe enactment referred to, their signatures ed in 16 American states, and had been enwould per se have created no implied or acted by Congress as the law of the District commercial contract whatever, their liability of Columbia, Crawf. Ann. Neg. Inst. Law, to the payee would have depended upon ex preface to second edition. We must attrinsic evidence to show the intent with tribute to our Legislature an intent to render which they became parties, and parol evi the law of this state respecting negotiable dence would have been competent for the instruments conformable to the law in these purpose of showing such intent. Chaddock other states. And at the same time it is obviv. Vanness, 35 N. J. Law, 517, 10 Am. Rep. ous that the act was intended to do away with 256. Had the payee afterwards indorsed the some of the distinctions established or recognote, and bad it come to the hands of a bona nized by our adjudicated cases respecting fide holder before maturity, the irregular in the form and mode in which a contract of in. dorsers might have been subjected to the lia dorsement might be entered into, and the efbility of second indorsers. Crozer v. Cham fect of making such an indorsement, whether bers, 20 N. J. Law, 256. But, as between the as between the parties or with respect to original parties, the question whether any subsequent holders of negotiable paper. By contract was made, and, if so, what was the section 63 of that act (P. L. 1902, p. 594) "a character of that contract, was to be deter person placing his signature upon an instrumined by the intention of the parties as as ment otherwise than as maker, drawer or certained by parol evidence of the circum acceptor, is deemed to be an indorser unless stances under which the indorsement was he clearly indicates by appropriate words made; evidence of this sort not being objec his intention to be bound in some other cationable on account of a tendency to vary a pacity." This, of course, abrogates so much written contract, when no contract would of Chaddock v. Vanness, 35 N. J. Law, 517, arise except for such evidence. Chaddock v. 10 Am. Rep. 256, as held that an irregular Vanness, 35 N. J. Law, 523, 10 Am. Rep. 256. indorsement of itself imported no implied or Even with respect to negotiable paper reg commercial contract whatever. Section 64 ular in form, our decision recognized the ad is as follows: "Where a person not othermissibility of parol evidence as between the wise a party to an instrument, places thereon immediate parties for the purpose of showing his signature in blank before delivery, he is that a note or indorsement was made for ac liable as indorser in accordance with the commodation, or made without consideration, following rules; I. If the instrument is pay. or upon a consideration that was conditional able to the order of a third person, he is liaand was not performed. Gilbert v. Duncan, ble to the payee and to all subsequent par29 N. J. Law, 133; Id. 521; Chaddock v. ties. II. If the instrument is payable to the Vanness, 35 N. J. Law, 520, 10 Am. Rep. 256. order of the maker or drawer, or is payable But, as a general rule with respect to paper to bearer, he is liable to all parties subseregular in form, our decisions did not, even quent to the maker or drawer. III. If he as between the parties, admit of the introduc- signs for the accommodation of the payee, he tion of parol evidence to vary the commer is liable to all parties subsequent to the

payee.” It will be observed that this section prima facie inference appearing from their deals with the rights of the payee and subse successive indorsements. quent parties, and has not the effect of defin To come now to the question of the statute ing the rights and liabilities of several ir of frauds in Hartley v. Sandford, 66 N. J. regular indorsers as between themselves. Law, 627, 50 Atl. 454, the case of Apgar v. These are set forth in section 68, which reads Hiler, 24 N. J. Law, 812, was not overruled, as follows: "As respects one another, indors but distinguished. Recovery was denied upers are liable prima facie in the order in on a verbal promise made by the defendant which they indorse; but evidence is admis to indemnify the plaintiff if he would besible to show that as between or among them come surety for the son of the promisor. The selves they have agreed otherwise," etc. This promisor did not become a party to the indoes not, by express mention, sanction parol strument upon which the plaintiff became evidence; neither does it expressly exclude surety; neither was there any consideration any kind of evidence, whether written or of benefit to the promisor to support his un. verbal. Is parol evidence excluded by im dertaking. In both these respects the case plication? If the legislative design was to before us is different. The defendant Hendee admit only written evidence for the purpose became a party to the note in question. And indicated, it would have been unnecessary to we think his agreement to indemnify the say anything upon the subject, for by the plaintiff was founded upon a consideration cummon-law rules of evidence other writings of substantial benefit to Hendee. The conexplanatory of the real agreement would, of sideration arose as follows: Both plaintiff course, have been admissible. When we re and Hendee were accommodation indorsers call that a previous section had brought ir.

for the maker of the note. To secure its regular and regular indorsers into a single payment the maker delivered a bill of sale category in the absence of an expressed in to Hendee for personal property of substantention to the contrary, that the first clause

tial value. There was evidence tending to of section 68 renders the mere act of indorse

show that its value was at least equivalent ment only prima facie evidence of the con

to the amount of the note; but whether the tract as between successive indorsers, and security was or was not ample to satisfy that by previous decisions parol evidence as

the amount of the note in our view makes no between irregular indorsers was for all pur

material difference. If plaintiff and Hendee poses admissible, and as between regular in were to remain successively liable as indorsers was for some purposes admissible

dorsers upon the note, Hendee would hold and for other purposes not, it is easy to ar

the personal property delivered to him as rive at the conclusion that the section was in

mortgagee subject to an accountability both tended to admit parol evidence in all cases

to the maker and to the plaintiff. If by between indorsers for the purposes of show

agreement between the parties the plaintiff,

instead of looking to the personal property ing what was the agreement amongst themselves. This view brings our state into ac

alone for his security, accepted the promise cord with the rule already laid down in some

of Hendee to pay the note at maturity if the

maker did not, this agreement practically reother jurisdictions as the common-law rule.

lieved Hendee from any liability to account At the same time it does not destroy the

to the plaintiff for the proceeds of the pervalue of the instrument as a commercial in

sonal property, provided he carried out his strument, for it is not against those who

agreement to pay the note in exoneration of subsequently take the instrument in the

the plaintiff. The effect of this was to fix course of commerce that the explanatory

the amount of Hendee's responsibility to the evidence is admitted. When we remember

plaintiff in the premises, and leave him at that the rules of the law merchant in this re

liberty to deal with the property by disposgard were established especially for the pro

ing of it at private sale or otherwise, protection of subsequent holders of the instru

vided he had the consent of the maker of ment, and that the liability of indorser arises

the note, and provided he indemnified plainnot froin any words expressed upon the paper tiff from liability. The status thus resulting but from implications that originated in the

from Hendee's agreement to indemnify the necessities of trade and commerce, it is rea

plaintiff was in a legal sense, and doubtless sonable to attribute to the Legislature an in

in a practical sense, substantially beneficial tent to leave the paper open to explanation to Hendee, and furnishes an adequate conby parol as between the indorsers them sideration to support his undertaking upon selves. This is the effect that was given to which the action was based. And so, as resection 68 of the act in the recent decision of spects the statute of frauds, the present case this court in the case of M gan v. Thomp is governed by Apgar v. Hiler, and not by son, 72 N. J. Law, 244, 62 Atl. 410. In our Hartley v. Sandford. opinion, therefore, the act admits of the in It follows that the action of the trial judge troduction of parol evidence to show the ac in nonsuiting the plaintiff was erroneous. tual agreement made between several in The judgment should be reversed, and a dorsers, notwithstanding it contradicts the venire de novo awarded.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion filed in the Court of Chancery by Vice Chancellor Grey.

The CHIEF JUSTICE, DIXON, GARRI. SON, GARRETSON, PITNEY, SWAYZE, REED, BOGERT, VREDENBURGH, GRAY, VROOM, GREEN, and DILL, JJ., concur.

169 N. J. Eq. 837)

WRIGHT V. STONE HARBOR IMP. CO. (Court of Errors and Appeals of New Jersey.

Feb. 2, 1906.) MORTGAGES-AMOUNT DUE-TENDER.

The amount due on foreclosure of a mortgage was ascertained from the admission of a former owner of the equity of redemption contained in a declaration of no set-off. The proofs did not sustain an alleged tender. (Syllabus by the Court.) Appeal from Court of Chancery.

Action by one Wright against the Stone Harbor Improvement Company. Decree for complainant, and defendant appeals. Affirmed.

The following is the opinion of Grey, V. C., in the court below:

“The testimony submitted on the part of the complainant indicates that the mortgage, which is sought to be foreclosed, in this case was a purchase-money mortgage, that it still remains a subsisting mortgage, and that it passed by a number of assignments from one holder to another until it came into the hands of the present holder. There is a declaration of no set-off from one of the previous owners of the equity of redemption which states the amount which at the time of that declaration was due on the mortgage. The complainant accepts that admission of the party who then held the equity of redemptions as an ascertaining of the amount due, and claims that admitted amount as the principal sum due, with interest from that date. There is no proof on the part of the defendart that he has paid anything. There is some testimony on the part of the defendant that a tender was made, but the testimony on the point failed to prove that the amount tendered was the full amount due and also to show the other requisites of a competent tender. It has not been shown that the amount due was duced by payments or that it was voluntarily dismissed or remitted by the holder of the mortgage. The defendant starts out with a showing that the alleged tender was made. When the witness who undertook to prove the tender, wa asked whether it was a tender of the amount due on the mortgage, he said it was not, but that it was an amount which was due on an agreement between Mr. Walter Brooks and Mr. Alonzo Wright, which agreement, he said, was in writing; and this writing was not produced. Whether that agreement had any relation to this mortgage, whether it was made between parties who had a right to bind the mortgagor and mortgagee, does not appear. I see no reason why the complainant should not have a decree in accordance with the proofs, and I will advise such a decree. The complainant's proofs fix the amount. I will advise a decree for that sum."

Edward Ambler Armstrong, for appellants. J. Willard Morgan, Charles V. D. Joline, and French & Richards, for respondent.

66 A.-27

(69 N. J. Eq. 641) HOWELL V. WESTBROOK. (Chancery Court of New Jersey. July 21,

1903.) 1. WILLS-CONSTRUCTION.

Testator bequeathed to his wife the interest arising from 46 shares of bank stock, and empowered his executors to pay the said interest to her "as the same shall be declared by said bank.” Held, that the wife was entitled only to dividends declared, not to dividends earned. 2. SAME_"REPRESENTATIVES."

Testator devised and bequeathed as follows: “I do give and devise unto all my brothers and sisters and their representatives, aftr. the decease of my wife, the house and lot left in trust to her and also the bank stock left in trust to her, to be equally divided, share and share alike." The sisters died leaving issue. Held, that the word "representatives” was substitutionary, and meant, having reference to the context, "next of kin under the statute of distributions."

[Ed. Note.-For cases in point, see Cent, Dig. vol. 49, Wills, $ 1107.]

(Syllabus by the Court.)

Bill by one Howell against one Westbrook to construe a will. Decree rendered.

John L. Swayze, for complainant. Allen R. Shay, Vreeland, King, Wilson & Vreeland, and Theodore Simonson, for defendant.

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STEVENS, V. C. Two questions arising under the will of Henry Dildine, who died in 1874, have been propounded to me.

First. Testator bequeathed (inter alia) to his wife the interest arising from 46 shares of the capital stock of the Merchants' National Bank of Newton, and empowered his executors “to pay the said interest to my wife Lydia as the same shall be declared by said bank.” The widow died in February, 1900. It appears to me that what the testator intended was that the wife should have such dividends as were declared. It is said in Thompson on Corporations, $ 2219, that the enhanced price for which stocks may sell by reason of dividends earned, but not declared, enures, under the modern rule, to the benefit of the remainderman. How far, if at all, this rule is modified by what has been decided in Van Doren v. Olden, 19 N. J. Eq. 176, 97 Am. Dec. 630, Ashurst v. Field, 26 N. J. Eq. 1, Van Blarcom v. Dager, 31 N. J. Eq. 783, and Lang v. Lang, 57 N. J. Eq. 325, 41 Atl. 705, I need not consider, for, as I understand the language of the will in question, the gift to the wife is expressly limited to dividends declared. Everything else goes to the remaindernen.

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