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by the defendants, however, entirely destroyed the probative force of her negative statement. The credibility of the witnesses who proved that the bell was rung was not impeached by any direct evidence; nor does the case disclose any reason for rejecting their testimony. In the case of Culhane v. New York Central, etc., R. R. Co., 60 N. Y. 133, 137, it is said that "as against positive affirmative evidence by credible witnesses to the ringing of the bell, or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. It must appear that they were looking, watching, or listening for it; that their attention was directed to the fact, so that the evidence will tend to some extent to prove the negative. A mere 'I did not hear' is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact." Hubbard v. Boston & Albany R. R. Co., 159 Mass. 320, 34 N. E. 459, Keiser v. Lehigh Valley R. R. Co., 212 Penn. 409, 61 Atl. 903, 108 Am. St. Rep. 872, and Eissing v. Erie R. R. Co. (N. J. Sup.) 63 Atl. 856 (the latter a decision of our Supreme Court) are to the same effect. We think this principle is sound when applied to the testimony of one who, by reason of his surroundings, would be unlikely to notice the giving of the signal unless his attention was directed to the passing of the train. In the present case the fact that Mrs. Wilmerton lived in close proximity to the railroad, and that the passage of trains to and fro upon it was a matter of frequent occurrence, renders it quite unlikely that she would observe whether a bell upon a given train was being rung as it passed along in the neighborhood of her house, unless her attention was attracted to it at the time. A person who lives in proximity to a railroad where the passage of trains is frequent becomes so accustomed to the noise of their passage that he no more observes the sound produced by them as they move to and fro than he does the striking of a clock in a room in which he is accustomed to sit. We concur in the view taken by the trial judge that the plaintiff below failed to sustain the burden of proof that was upon her to show that the bell was not rung in the manner required by the statute.

It is further contended on behalf of the plaintiff in error that there was testimony in the case which would justify the conclusion that the crossing at which the accident occurred was unusually dangerous by reason of the existence of obstructions to the view in the direction from which the train that collided with the wagon of the deceased was approaching, that the defendant company was responsible for the presence of those obstructions; and that, therefore, it was bound to use extra precautions for the safety

of travelers upon the highway, to do something more to warn them of the approach of trains than to blow a whistle, or to ring a bell; and it is argued that the plaintiff was entitled to have that question submitted to the jury, and to a verdict in her favor in case they should so find the fact. No such issue, however, was raised by the pleadings, and a verdict upon any such theory could not therefore have been supported. The judgment under review must be affirmed.

(74 N. J. L. 640)

WILSON v. HENDEE. (Court of Errors and Appeals of New Jersey. March 12, 1907.)

1. BILLS AND NOTES-INDORSEMENT BEFORE DELIVERY EFFECT-STATUTORY PROVISION. Section 63 of the negotiable instruments act (P. L. 1902, p. 594) abrogates the rule declared in Chaddock v. Vanness, 35 N. J. Law, 517, 10 Am. Rep. 256, that the signature of a third party upon the back of a negotiable instrument prior to its delivery to the payee creates per se no implied or commercial contract whatever. [Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 542-561.] 2. SAME.

Section 64 of the negotiable instruments act (P. L. 1902, p. 594) deals only with the liability of an irregular indorser to the payee and subsequent parties, and does not define the rights and liabilities of several such indorsers as between themselves.

3. SAME-EVIDENCE-PArol.

Under section 68 of the negotiable instruments act (P. L. 1902, p. 596) parol evidence is admissible as between several indorsers to show that they agreed to become liable otherwise than in the order in which they indorsed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1719-1722.]

4. FRAUDS, STATUTE OF PROMISES TO ANSWER FOR DEFAULT OF ANOTHER- AGREEMENT BETWEEN INDORsers.

The first of two accommodation indorsers of a promissory note having indorsed upon the strength of a verbal agreement made by the second indorser, whereby the latter, in consideration that the maker of the note should place in his hands certain valuable personal property to secure payment of the note by the maker, promised the first indorser to indemnify him against loss thereon, and the maker having furnished the consideration before delivery of the note, and the first indorser having been obliged to pay the note to the holder, held, in an action by the first indorser against the second indorser for reimbursement under the agreement of indemnity, that this was not a promise to answer for the debt, default, or miscarriage of another person, within the meaning of the statute of frauds (Gen. St. p. 1603. § 5, par. 2), but an original obligation, founded upon a consideration of substantial benefit to the promisor. [Ed. Note. For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 54.] 5. SAME.

Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812, followed; Hartley v. Sandford, 66 N. J. Law, 627, 50 Atl. 454, distinguished. (Syllabus by the Court.)

Error to Supreme Court.

Action by Charles W. Wilson against Harry C. Hendee. From a judgment in favor of defendant, plaintiff brings error. Reversed, and a venire de novo awarded.

Henry S. Alvord and J. Boyd Avis, for plaintiff in error. Henry C. Bartlett and Royal P. Tuller, for defendant in error.

PITNEY, J. On May 12, 1904, one Walter D. Wilson made his promissory note for $920 payable to the order of the Vineland National Bank. Prior to its delivery to the payee the note was indorsed successively by Charles W. Wilson, the plaintiff herein, and by the defendant Hendee, for the accommodation of the maker. The paper having gone to protest at maturity, the plaintiff was obliged to pay, and did pay, the whole amount of it to the bank.

The present action is based upon an alleged agreement made between Hendee and the plaintiff prior to the indorsement of the note by either of them, to the effect that, if plaintiff would become indorser, Hendee would likewise indorse, and would pay the note at maturity, and indemnify the plaintiff and save him harmless against all loss by reason of his indorsement, in consideration of certain valuable personal property to be placed in his hands by the maker. At the trial plaintiff introduced evidence tending to show the making of such an agreement, and that on the strength of it the note was indorsed by the plaintiff; that before its delivery to the bank the maker gave to Hendee a bill of sale for certain personal property of the estimated value of $1,000 as a mortgage to secure its payment; and that Hendee at once took possession of this personal property and afterwards disposed of some or all of it. The learned trial justice granted a nonsuit upon the authority of the decision of this court in Hartley v. Sandford, 66 N. J. Law, 627, 50 Atl. 454, on the ground that Hendee's promise to the plaintiff to indemnify him was within the statute of frauds, as being a promise to answer for the debt, default, or miscarriage of another person, and therefore was unenforceable because not made in writing. It is contended by counsel for the plaintiff in error that the case is not controlled by Hartley v. Sandford, but is rather within the principle of the earlier decision of this court in Apgar v. Hiler, 24 N. J. Law, 812.

In order to determine the controversy, it is important to consider precisely what was decided in these two cases, and also to note certain changes made in the law of negotiable instruments by P. L. 1902, p. 583, which enactment antedated the making of the note in question. In the case in Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812, there was a joint and several promissory note, payable to the order of one Melick, and signed by one Fisher, by Apgar, and by Hiler as makers. Opposite to the names of Apgar and Hiler the word "sureties" was written by Apgar. Apgar solicited and procured Hiler to sign the note as surety, saying, "If you will sign it, it will be a great accommodation to us, and you shall never pay one red cent." Apgar

Hiler,

and Fisher were partners in business. having been obliged to pay the note, sued the administrators of Apgar in the Supreme Court to recover the amount thus paid, and obtained a judgment against them, which, upon writ of error, was sustained by this court. Chief Justice Green, in his opinion, said that upon the face of the note, and in the absence of extrinsic evidence, Apgar and Hiler would be regarded as co-sureties, but that it was competent for the plaintiff to show in what relation the several signers stood to each other; that their relation to each other depended, not upon the form of the note nor upon whether their names were signed first or last, but upon the character in which they became parties and the agreement or contract made among themselves at the time of signing. "This," he said, “was matter in pais, proper to be proved by parol." And, though the memorandum "imports prima facie that Apgar and Hiler were joint securities, it was competent for the plaintiff to show whether they were securities for Fisher alone or for each other also," citing cases. And, again: "If the evidence was believed, it showed either that Fisher and Apgar were the principal debtors and Hiler alone the security, or, if Apgar was security for Fisher, still that Hiler signed, not as joint security with Apgar, and liable with him to contribution, but as security for Apgar also. He stands to Hiler in the relation of principal to surety. It is clear from the evidence that in any event Apgar was to stand between Hiler and loss. If the jury believed that the note was the debt of Fisher and Apgar, and that Hiler alone was security, he is entitled to recover from his principals the amount paid for their benefit. * * If, on the other hand, the jury believed that Fisher alone was the original debtor and Apgar his surety, but that Hiler became surety at Apgar's request, and upon his promise of indemnity, still the plaintiff was entitled to recover in this action. The evidence was not offered to show an independent contract of guaranty against loss, but simply the character in which Hiler became a party to the note. This, as has been shown, may be proved by parol. Nor was the evidence offered to prove a promise by Apgar to pay the debt of a third person, and which must therefore be in writing. It was designed to show an original, equitable obligation on the part of Apgar to refund the money, growing out of the circumstances under which Hiler became a party to the instrument, and consequently liable to pay the debt."

It will be observed that, in this reasoning, the court dealt with two legal rules that had been suggested as obstacles to the plaintiff's recovery. The one was the common-law rule that rejects parol evidence of an antecedent or contemporaneous understanding that tends to modify the effect of a written instrument. The effect of this rule was excluded on the ground that the memorandum appearing upon

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 other obstacle suggested was the statutory rule found in that section of the statute of frauds (now in Gen. St. p. 1603, § 5, par. 2) which declares that no action shall be brought to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person unless the agreement shall be in writing, etc. This the court disposed of upon the ground that the parol evidence was not offered to prove Apgar's promise to pay the debt of a third person, but to show his original equitable obligation to indemnify Hiler.

Before coming to Hartley v. Sandford, 66 N. J. Law, 627, 50 Atl. 454 (which deals only with the statute of frauds), it will be well to consider whether either the common-law rule or the negotiable instruments act (P. L. 1902, p. 583) excludes the parol evidence upon which alone was rested the proof of the agreement for whose breach recovery was sought in the present case. The note in question was made by Walter D. Wilson to the order of the bank, and was indorsed by the parties to this suit prior to its delivery to the bank. As the law stood in this state before the enactment referred to, their signatures would per se have created no implied or commercial contract whatever, their liability to the payee would have depended upon extrinsic evidence to show the intent with which they became parties, and parol evidence would have been competent for the purpose of showing such intent. Chaddock v. Vanness, 35 N. J. Law, 517, 10 Am. Rep. 256. Had the payee afterwards indorsed the note, and had it come to the hands of a bona fide holder before maturity, the irregular indorsers might have been subjected to the liability of second indorsers. Crozer v. Chambers, 20 N. J. Law, 256. But, as between the original parties, the question whether any contract was made, and, if so, what was the character of that contract, was to be determined by the intention of the parties as ascertained by parol evidence of the circumstances under which the indorsement was made; evidence of this sort not being objectionable on account of a tendency to vary a written contract, when no contract would arise except for such evidence. Chaddock v. Vanness, 35 N. J. Law, 523, 10 Am. Rep. 256. Even with respect to negotiable paper regular in form, our decision recognized the admissibility of parol evidence as between the immediate parties for the purpose of showing that a note or indorsement was made for accommodation, or made without consideration, or upon a consideration that was conditional and was not performed. Gilbert v. Duncan, 29 N. J. Law, 133; Id. 521; Chaddock v. Vanness, 35 N. J. Law, 520, 10 Am. Rep. 256. But, as a general rule with respect to paper regular in form, our decisions did not, even as between the parties, admit of the introduction of parol evidence to vary the commer

terms of the instrument; for instance, as between successive accommodation indorsers. Johnson v. Ramsey, 43 N. J. Law, 279, 39 Am. Rep. 580; Middleton v. Griffith, 57 N. J. Law, 442, 448, 31 Atl. 405, 51 Am. St. Rep. 617; Kling v. Kehoe, 58 N. J. Law, 529, 33 Atl. 946; Foley v. Emerald Brewing Co., 61 N. J. Law, 428, 431, 39 Atl. 650. In other jurisdictions the rule adopted in this state with respect to excluding parol evidence of the intent of the parties to a negotiable instrument regular on its face, where such evidence would tend to vary the contract that the law merchant implies from the form of the instrument, was not uniformly adhered to, it being held in many states that in actions between the parties parol evidence was admissible to show that they had agreed otherwise than as would appear from the face of the note. 1 Dan. Neg. Inst. (6th Ed.) § 717, and cases cited; 2 Rand. Com. Paper, §§ 740, 741, 778, 779, and cases cited; Crawf. Ann. Neg. Inst. Law (2d Ed.) § 118.

In this state of the law our new negotiable instruments act was passed. P. L. 1902, p. 583. Prior to its enactment a similar act, or one substantially similar, had been adopted in 16 American states, and had been enacted by Congress as the law of the District of Columbia. Crawf. Ann. Neg. Inst. Law, preface to second edition. We must attribute to our Legislature an intent to render the law of this state respecting negotiable instruments conformable to the law in these other states. And at the same time it is obvious that the act was intended to do away with some of the distinctions established or recognized by our adjudicated cases respecting the form and mode in which a contract of indorsement might be entered into, and the effect of making such an indorsement, whether as between the parties or with respect to subsequent holders of negotiable paper. By section 63 of that act (P. L. 1902, p. 594) "a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity." This, of course, abrogates so much of Chaddock v. Vanness, 35 N. J. Law, 517, 10 Am. Rep. 256, as held that an irregular indorsement of itself imported no implied or commercial contract whatever. Section 64 is as follows: "Where a person not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules; I. If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties. II. If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer. III. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the

payee." It will be observed that this section deals with the rights of the payee and subsequent parties, and has not the effect of defining the rights and liabilities of several irregular indorsers as between themselves. These are set forth in section 68, which reads as follows: "As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise," etc. This does not, by express mention, sanction parol evidence; neither does it expressly exclude any kind of evidence, whether written or verbal. Is parol evidence excluded by implication? If the legislative design was to admit only written evidence for the purpose indicated, it would have been unnecessary to say anything upon the subject, for by the common-law rules of evidence other writings explanatory of the real agreement would, of course, have been admissible. When we recall that a previous section had brought irregular and regular indorsers into a single category in the absence of an expressed intention to the contrary, that the first clause of section 68 renders the mere act of indorsement only prima facie evidence of the contract as between successive indorsers, and that by previous decisions parol evidence as between irregular indorsers was for all purposes admissible, and as between regular indorsers was for some purposes admissible and for other purposes not, it is easy to arrive at the conclusion that the section was intended to admit parol evidence in all cases between indorsers for the purposes of showing what was the agreement amongst themselves. This view brings our state into accord with the rule already laid down in some other jurisdictions as the common-law rule. At the same time it does not destroy the value of the instrument as a commercial instrument, for it is not against those who subsequently take the instrument in the course of commerce that the explanatory evidence is admitted. When we remember that the rules of the law merchant in this regard were established especially for the protection of subsequent holders of the instrument, and that the liability of indorser arises not from any words expressed upon the paper but from implications that originated in the necessities of trade and commerce, it is reasonable to attribute to the Legislature an intent to leave the paper open to explanation by parol as between the indorsers themselves. This is the effect that was given to section 68 of the act in the recent decision of this court in the case of Morgan v. Thompson, 72 N. J. Law, 244, 62 Atl. 410. In our opinion, therefore, the act admits of the introduction of parol evidence to show the actual agreement made between several indorsers, notwithstanding it contradicts the

prima facie inference appearing from their successive indorsements.

To come now to the question of the statute of frauds in Hartley v. Sandford, 66 N. J. Law, 627, 50 Atl. 454, the case of Apgar v. Hiler, 24 N. J. Law, 812, was not overruled, but distinguished. Recovery was denied upon a verbal promise made by the defendant to indemnify the plaintiff if he would become surety for the son of the promisor. The promisor did not become a party to the instrument upon which the plaintiff became surety; neither was there any consideration of benefit to the promisor to support his undertaking. In both these respects the case before us is different. The defendant Hendee became a party to the note in question. And we think his agreement to indemnify the plaintiff was founded upon a consideration of substantial benefit to Hendee. The consideration arose as follows: Both plaintiff and Hendee were accommodation indorsers for the maker of the note. To secure its payment the maker delivered a bill of sale to Hendee for personal property of substantial value. There was evidence tending to show that its value was at least equivalent to the amount of the note; but whether the security was or was not ample to satisfy the amount of the note in our view makes no material difference. If plaintiff and Hendee were to remain successively liable as indorsers upon the note, Hendee would hold the personal property delivered to him as mortgagee subject to an accountability both to the maker and to the plaintiff. If by agreement between the parties the plaintiff, instead of looking to the personal property alone for his security, accepted the promise of Hendee to pay the note at maturity if the maker did not, this agreement practically relieved Hendee from any liability to account to the plaintiff for the proceeds of the personal property, provided he carried out his agreement to pay the note in exoneration of the plaintiff. The effect of this was to fix the amount of Hendee's responsibility to the plaintiff in the premises, and leave him at liberty to deal with the property by disposing of it at private sale or otherwise, provided he had the consent of the maker of the note, and provided he indemnified plaintiff from liability. The status thus resulting from Hendee's agreement to indemnify the plaintiff was in a legal sense, and doubtless in a practical sense, substantially beneficial to Hendee, and furnishes an adequate consideration to support his undertaking upon which the action was based. And so, as respects the statute of frauds, the present case is governed by Apgar v. Hiler, and not by Hartley v. Sandford.

It follows that the action of the trial judge in nonsuiting the plaintiff was erroneous. The judgment should be reversed, and a venire de novo awarded.

(69 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 defendant 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 reduced 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, was 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

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, GARRISON, GARRETSON, PITNEY, SWAYZE, REED, BOGERT, VREDENBURGH, GRAY, VROOM, GREEN, and DILL, JJ., concur.

(69 N. J. Eq. 641)

HOWELL v. WESTBROOK. (Chancery Court of New Jersey. July 21, 1905.)

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, afte 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.

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. 650, 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 remainder men.

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