(107 A.) was nothing before the court to warrant the jury in saying that the plaintiff was prevented from a recovery because of the release was a legal error. Kalisch, J., dissenting. Appeal from Supreme Court. release, if not obtained by fraud, which was for the jury to decide. Secondary evidence of the contents of a writing not produced is always competent if a proper foundation for its admission be shown, and where it is received without objection, and the parties acquiesce in its introduction, and try the case as if the contents were proven by the production of the writing the necessity for pioving the foundation for the admission of sec Action by William A. Fagan against the Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant ap-ondary testimony of contents is waived. This peals. Reversed, and a new trial ordered. George Holmes, of Jersey City, and De Voe Tomlinson of Bridgeton, for appellant. Wight, Wight & Golenbock, of Perth Amboy, for respondent. BERGEN, J. This was an action for damages which the plaintiff claims he suffered while in the employment of the defendant. One of the defenses was that plaintiff had released the defendant from all claim for his injuries for $85, which was paid to him. result makes its unnecessary to deal with the other grounds of alleged error. The judgment will be reversed, and a new trial ordered. Plaintiff admits receiving the $85, and (Court of Errors and Appeals of New Jersey. signing a paper which he thought was for wages. No objection was made to the secondary proof of the contents of the release, which was not produced by the defendant, and one of the issues tried was whether the writing was executed as a release or as a receipt. The answer of the defendant sets up that the paper released the defendant from all claim resulting from the injuries upon which this action is based, and the reply filed by the plaintiff is that the release was procured by fraud. This was a jury question, but one which they were not allowed to determine under the charge of the court. The cause was tried and submitted to the jury by both parties upon thee theory that the contents of the release had been proven, but its execution as a release obtained by fraud or misrepresentation. The trial court, without request by plaintiff's counsel, and of its own motion, instructed the jury regarding the release as follows: "It appears that some time after the accident the plaintiff left the hospital and went to defendant's office and after accepting $85 signed a paper that was brought him. The plaintiff testifies that he thought he was signing a receipt. Defendant's claim agents testify that it was a release. It was a written document, and must be produced by the defendant if it relies upon this document to prevent a recovery by the plaintiff. The paper has not been produced and its absence has not been accounted for, and there is nothing before the court that will warrant you in saying that the plaintiff is prevented from recovery, if you find that he has any claim against this company, by reason of any paper that was signed at that time." This was a material legal error, and clearly injurious to the defendant, for it took from the jury all consideration of the effect of the June 20, 1919.) (Syllabus by the Court.) CONSPIRACY 45-EXISTENCE OF CONSPIRA- asked questions which sought to establish that Held, that the questions asked were incompetent, and that the judgment of the Supreme Court should be reversed to the end that that of the trial court be affirmed. Minturn and Taylor, JJ., dissenting. Error to Supreme Court. Frank E. Taylor was convicted of conspiracy, and from a judgment of reversal in the Supreme Court (104 Atl. 709) the State brings error. Reversed, to the end that the judgment of the trial court be affirmed. J. Henry Harrison, Prosecutor, and John A. Bernhard, Asst. Prosecutor of the Pleas, both of Newark, for the State. Wilbur A. Heisley, of Newark, for defendant in error. WALKER, Ch. The defendant was indicted with one Cowan for conspiracy to defraud the board of chosen freeholders of the county of Essex by falsifying the record of jurors whereby they received certain jurors' pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from the county. The record is voluminous and contains many assignments of error and specifications of causes for reversal. The entire proceedings were brought up by the writ of error. The Supreme Court dealt with the various objections made, and found no trial error in the record, save one, and that is that certain questions by which it was sought to be shown that Cowan, defendant's coconspirator, was addicted to the excessive use of liquor, went on protracted sprees, and was therefore a person with whom defendant would not have been likely to enter into a conspiracy, were excluded by the trial court. We agree with the Supreme Court in the conclusions it reached on all the objections made by the defendant except this one, and as to this one we think that court erred. The Supreme Court observed in its opinion: "Assignments 22, 23, 24, and 25 relate to the exclusion by the court of questions asked of the defendant by his counsel which sought to establish by this witness that Cowan was addicted to the excessive use of liquor, and to such an extent that he would be incapacitated for weeks at a time, during which he was mentally incompetent and incoherent, and that these facts were known to the defendant before and at the time it is alleged that he entered into a conspiracy with Cowan to defraud the county. The purpose of offering this testimony, as stated to the trial court, by defendant's counsel, was to have the jury pass upon the question, as a matter of fact, whether or not it is probable that a man in his right senses would make such a combination with a man whom he knows to be for weeks at a time out of his head by the use of intoxicating liquors. "We think the testimony offered was competent, and that its exclusion was error prejudicial to the defendant." It is noteworthy that no authority is cited for this novel doctrine; nor is any furnished with the brief of counsel for defendant to support it. To permit Cowan's dissipation to be shown would have been to import another and irrelevant issue into the case, a thing forbidden upon familiar principle. In Best on Presumptions of Law and Fact, p. 211, it is laid down that according to the general rule it is not competent to give evidence of the general character of the parties to forensic proceedings, much less of particular facts not in issue in the cause, with the view of raising a presumption either in favor of one or disadvantageous to his antagonist. In Bullock v. State, 65 N. J. Law, 565, 577, 47 Atl. 62, 86 Am. St. Rep. 668, it was held that the evidence of character regarding a criminal defendant must be confined to general reputation, and that particular acts or specific facts are not admissible as original evidence or by way of rebuttal. A person on trial for a criminal offense is reference to the charge which is in issue, by testimony showing his general reputation in the community in which he lives (State v. Brady, 71 N. J. Law, 360, 59 Atl. 6) for chastity and morality, peace and good order, honesty and fair dealing, or as the case may be, upon the theory that it tends to show the unlikelihood of his having committed the offense with which he stands charged. But, as shown, this may be done only by evidence of general reputation and not by the establishment of particular acts or facts. Now in the case at bar, the attempt is to establish the bad character of a coconspirator of the defendant, because, it is said, that that character, if established, would tend to show that it was unlikely that the defendant would have entered into a conspiracy with such a man. The attempt is not to show general bad character for honesty and fair dealing in the third party, the ratter involved in the issue joined in this cause, for that would be absurd-it would be absurd to say that a man would not conspire with one whose character for honesty and fair dealing was bad, on the contrary, one of that character is the kind of a man with whom another would conspire-but the attempt is to show that the coconspirator is a drunkard, and therefore a man with whom the defendant would have been unlikely to conspire; and this, not by general reputation for drunkenness, but by specific acts or facts. Now, even if it were permissible to show this third par ty's character for the trait mentioned, which it is not, it would have to be by general reputation and not by specific acts or facts. It cannot be argued with any show of reason that, although the defendant's character can only be shown by general reputation, that of the third party with whom he was associated can be shown by particular acts or facts, assuming that the latter's character can be shown at all, which it cannot. In Walls v. State, 125 Ind. 400, 25 N. E. 457, it was held that on a trial for robbery the accused could not show the character for honesty of one jointly indicted with him, but not on trial. In Omer v. Commonwealth, 95 Ky. 353, 25 S. W. 594, it was held that one accused of aiding and abetting a murder in pursuance of a conspiracy cannot prove the good character of his coconspirators. It must be obvious that, if a defendant in a criminal case cannot give evidence of the good character of his associates, he cannot give evidence of their bad character. The very statement of the proposition in the alternative shows the fallacy of the contention made by the defendant in this cause, for, if it can be equally urged that a man would not conspire either with the good or with the bad-and, as a conspiracy, if entered in (107 A.) conspiracies are entered into all too frequently it is apparent that the character of coconspirators is not a deterrent; and therefore inquiry into their character is incompetent. (90 N. J. Eq. 515) HOOVER STEEL BALL CO. v. SCHAEFER BALL BEARING CO. (No. 45/739.) (Court of Chancery of New Jersey. May 29, 1919.) SURE. (Syllabus by the Court.) It is contended on behalf of the defendant that the doctrine enunciated by the Supreme Court is analogous to the rule laid down in Lewis v. Goldstein, 75 N. J. Law, 305, 68 Atl. 1. INTEREST 39(3)-DECREE OF FORECLO85. That was a suit on a contract, and there was a direct conflict as to the price agreed upon; and it was held competent to prove the value of the services and of the materials furnished, for the purpose of showing whose contention was probably correct. We see no analogy in that case to the one at bar. There the issue was as to the value of serv ices and materials; here the issue is, not the drunkenness of Cowan, but whether or not Taylor entered into a conspiracy with him; and to show that Cowan, was a drunkard is quite beside that issue. The judgment of the Supreme Court should be reversed, to the end that that of the trial court be affirmed. MINTURN and TAYLOR, JJ., dissent. (118 Me. 492) MICHAUD v. HAWKINS. After decree in foreclosure of a mortgage, interest runs, on the decree, as matter of damages for the detention of the debt at the legal rate. 2. QUERY. Whether interest, after maturity of the debt secured by mortgage, in the absence of express provision, runs as an incident of the contract, or as matter of damages, before judgment-quære? Interest as matter of damages is charged and allowed in accordance with principles of equity, in order to accomplish justice in each particular case. 4. CORPORATIONS 568-INSOLVENCY-INTEREST ON CLAIMS. The rule is that interest on claims against an insolvent corporation, whether allowable as (Supreme Judicial Court of Maine. July 12, matter of contract or of damages, but certainly 1919.) where allowable only as mattter of damages, ceases to run upon the property being taken in On Motion from Supreme Judicial Court, custodia legis, and this rule applies as well to Androscoggin County, at Law. PER CURIAM. This is an action brought to recover damages sustained by the negligent driving of the defendant's automobile in a public street in the city of Lewiston. The plaintiff is a little girl, whose age at the time of the accident was four years. In addition to the injuries complained of, there resulted disfiguring scars on the plaintiff's face, some of which, at least, are liable to remain with her during life. The jury returned a verdict for the plaintiff for $987.50. The case comes up on a general motion by the defendant upon the usual grounds. After a careful examination of the testimony, we fail to discover any reason for setting the verdict aside. It does not appear that the jury was influenced by prejudice, passion, or The damages are not deemed to be excessive, and the entry must be: Motion overruled. bias. preferred as to general claims. The rule is The rule that, where a creditor has a lien upon specific property by contract, he is entitled to receive from the specific property the amount due him, with interest, if provided for by the contract, is subject to its exceptions, and the solution of the question may depend upon the nature of the events which prevented Mortgagees, having a lien upon property of an insolvent corporation by decree in foreclosure, at the time of the appointment of a statutory receiver, which property was sold in the lien attaching to the proceeds, the proceeds beinsolvency proceedings free of the lien, the ing more than sufficient to satisfy the amount of the decree with interest, were allowed interest to the date of the payment of the purchase price to the receiver; it not appearing that delay in disposing of the property was occasioned by litigation as to the validity or exthe mortgagees are entitled only to such intertent of the lien. After payment to receiver, est as may have been actually earned by the portion of the purchase price upon which the lien attached. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bill by the Hoover Steel Ball Company include interest. Brown v. Barkham (1720) 1 against the Schaefer Ball Bearing Company, P. Wm. 653, 24 English Reprint, 555; Perkyns with controversy between mortgagees of re- v. Boynton (1784) 1 Bro. C. C. 573, 28 English alty of insolvent corporation and a receiver Reprint, 1305. The latter practice appears as to whether interest should be allowed on to be to allow interest only on so much of the claims of the mortgagees to date of the decree as represents principal. Whatton adjudication of insolvency, or to date of v. Cradock (1836) 1 Keen, 267, 48 English payment to mortgagees. Mortgagees allowed Reprint, 309. Whether the practice in Enginterest on their decree to date of payment land has been changed since the last case of purchase price of property to receiver, cited I do not know. and thereafter allowed only to such interest as may have been earned on that part of the fund to which they were equitably entitled. See, also, 105 Atl. 500; 106 Atl. 471. Bilder & Bilder, of Newark, for receiver. Henry Smith, of Paterson, for mortgagees. LANE, V. C. The controversy is between mortgagees of real estate of the insolvent corporation and the receiver as to whether interest should be allowed on the claims of the mortgagees to the date of the adjudication of insolvency or to the date of payment to the mortgagees. At the time of the adjudication of insolvency and the appointment of the receiver mortgages upon its real estate had been foreclosed, and sale had been advertised by the sheriff under a writ of fieri facias issued on a final decree. The receiver represented to the court, among other things, that there was a dispute as to the property subject to the operation of the decree and fieri facias. Certain property was claimed by the receiver to be personal chattels, and by the mortgagees to be fixtures. The court thereupon stayed the sale under the fieri facias, and directed the disposal of the property under the provisions of section 81 of the Act Concerning Corporations. 2 C. S. of N. J. p. 1649. [1] An amount more than sufficient to satisfy the decree in favor of the mortgagees, with interest, was raised from the sale of the property; but, as I understand the law, interest is allowed on a decree as matter of damages for the detention of the debt. There is no statute in this state that I am aware of specifically covering the subject. The practice is, on the foreclosure of a mortgage, to allow interest from the date of the decree at the legal rate to the date of payment. Interest runs, not at the rate provided in the mortgage or bond, but at the legal rate. Wilson v. Marsh, 13 N. J. Eq. 289; Cox v. Marlatt, 36 N. J. Law, 389, 13 Am. Rep. 454; Deshler v. Holmes, 44 N. J. Eq. 581, 18 Atl. 75; Moore v. Durnan, 70 N. J. Eq. 1, 62 Atl. 327. See, also, 1 Jones on Mortgages (7th Ed.) § 74; 27 Cyc. title "Mortgages," p. 1657; Wilson v. Cobb, 31 N. J. Eq. 91; 19 R. C. L. title "Mortgages," p. 569, § 380. [2] Whether interest after maturity of the debt secured by the mortgage, in the absence of express provision, runs as an incident of the contract, or as matter of damages before judgment, seems to be the subject of dispute. 1 Jones on Mortgages (7th Ed.) § 74; Brannon v. Hursell, 112 Mass. 63; Brewster v. Wakefield, 22 How. 118, 16 L. Ed. 301. The point is not before me for decision. [3] Interest on the decree being allowed as matter of damages the language of Vice Chancellor Stevenson in Agnew v. Board of Education, 83 N. J. Eq. 49, 67, 89 Atl. 1046, 1054, affirmed by the Court of Errors and Appeals on the Vice Chancellor's opinion, 83 N. J. Eq. 336, 90 Atl. 1135, is applicable. He said: "It should be borne in mind that the whole tendency of courts of law and courts of equity for a considerable period of time has been to break away from hard and fast rules, and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case.” See, also, Hills v. Etna Life Insurance Co., 39 N. J. Law J. 132, opinion by Speer, Circuit Judge; Le Branthwait v. Halsey, 9 N. J. Law, 4; Backus v. Crane, 87 N. J. Eq. 229, 100 Atl. 900; 15 R. C. L. title "Interest," p. 34, § 31. [4] The rule based on the authorities is that interest on claims against an insolvent corporation, whether allowable as matter of contract or as matter of damages, but certainly where allowable only as matter of damages, ceases to run upon the property being taken in custodia legis, and this rule applies as well to preferred as to general claims. The rule, however, is subject to its exceptions. In each case the question is what is fair in right and justice. 34 Cyc. title "Receivers," p. 372, § 4; Thomas v. Western Car Co., 149 U. S. 95, 13 Sup. Ct. 824, 37 L. Ed. 663; Chemical Nat. Bank v. Armstrong, 65 Fed. 573, 13 C. C. A. 47, 28 L. R. A. 231; American Iron & Steel Mfg. Co. v. Seaboard Air Line Co., 233 U. S. 261, 34 Sup. Ct. 502, 58 L. Ed. 949; Lippitt v. Thames Loan & Trust Co., 88 Conn. 185, 90 Atl. 369, 377. In re Torchia (D. C.) 185 Fed. 577, and In re Hershberger (D. C.) 208 Fed. 94, two district court decisions, from In England the early practice was, as is Pennsylvania, were determined upon a peour practice now, to allow interest upon the culiar statute of that state. In Pennsylvania full amount of the decree, which itself might | Steel Co. v. New York City Railway Co. (C. (107 A.) C. A. 2d Cir.) 216 Fed. 459, 132 C. C. A. 518, (93 N. J. Law, 233) and Spring Coal Co. v. Keech (C. C. A. 4th AQUINO v. MORRIS COUNTY TRACTION Cir.) 239 Fed. 48, 152 C. C. A. 98, L. R. CO. (No. 67.) A. 1917D, 1152, the courts, while recognizing the general rule found that the situations re- (Court of Errors and Appeals of New Jersey. quired, in order that equity should be done, that interest should be allowed as did the Supreme Court in American Iron & Steel Co. v. Seaboard, 233 U. S. 261, 34 Sup. Ct. 502, 58 L. Ed. 949. [5] It has been held that, where a creditor has a lien upon specific property by contract, he is entitled to receive from this specific property the amount due him, with interest, if provided for by the contract. But this rule also is, I think, subject to its exceptions, and the solution of the question in any given case may depend upon the nature of the events which prevented payment. 34 Cyc. title "Receivers," p. 372, § 4; Brazelton v. Campbell, 49 Tex. Civ. App. 218, 108 S. W. 770, 773, and see cases heretofore cited. [6] In the instant case the mortgagees by their decree had a lien upon specific property, but they were entitled to interest, not by virtue of the contract, but by way of damages for the detention of the debt. If they had been permitted to pursue their remedy under the decree, they would have been entitled to interest to the date of payment. I do not find that any subsequent delay in disposing of the property was occasioned by the fact that the receiver raised the contention that certain of the property sought to be sold under the fieri facias was not subject to the operation thereof. If such a delay had occurred, I might have found that the mortgagees were entitled to interest only to the date of the appointment of the receiver, or to the date of his application to this court to stay the sale under the writ of fieri facias. After the property was in fact sold, the lien of the decree was, by the terms of the order for sale, transferred from the property to the fund created by the sale. But I do not think that fund can be considered as in esse (for the purposes of this case) until actually paid to the receiver. I think that, when the fund was paid to the receiver, the lien of the decree was transferred to that portion of the fund representing the amount due to the mortgagees on the decree, with interest to the date of payment to the receiver. I think in this case the equitable rights of the parties will be subserved if the mortgagees are allowed interest on their decree to the date of the payment of the purchase price of the property to the receiver, and that thereafter they are entitled only to such interest as may have been earned upon that portion of the fund to which they were equitably entitled. The delay in distributing this fund, if delay there was, is due to the operation of the law. May 9, 1919.) Dissenting opinion. For majority opinion, see 106 Atl. 802. KALISCH, J. (dissenting). My dissent in this case is based upon two grounds: First, there was evidence from which a jury could have properly found that the plaintiff's intestate was struck while crossing the tracks of the company at a public crossing. There was evidence of blood spots found within 2 or 3 feet of the crossing. There was testimony to the effect that no warning or signal was given of the approach of the car to the crossing, and that it was going at great speed; that the motorman dimmed his headlight when he was 250 feet from the crossing and never put it on again until he reached the crossing. A prima facie case of negligence was made out against the defendant company, which entitled the plaintiff to have the cause submitted to the jury for its determination. The prevailing opinion of the court is unfortunately silent on this point, and disposes of the controversial questions in this fashion: "In the present case the man's right, assuming that he was at a public crossing, was to looking out for an approaching car. cross defendant's private right of way after It was the obvious failure to perform this accompanying duty to look which, under the assumption, caused the accident." And the writer of the opinion attempts to distinguish the present case from Merkl v. Jersey City Ry. Co., 75 N. J. Law, 654, 68 Atl. 74, in that, in the case cited, the injured person was where he had a right to be, whereas here the deceased was crossing a private right of way at a public crossing, and therefore was under a duty to look for an approaching car. It is an unwarranted assumption that the deceased was without legal right on the public crossing. The right of the company to cross the public highway is not superior to the right of the public. The deceased, if he was on the public crossing when he was struck, was where he had a lawful right to be for the purpose of crossing the track. He was under no greater duty to care for his personal safety than a person crossing a public street. The legal rules applicable to railroads under the general railroad act, in operating on a private right of way and over public crossings, do not apply to trolley cars, even though the latter are operated on private right of ways. |