Opinion
04-12-1895
GENNERT v. WUESTNER.
J. A. Beecher, for complainant. Carrick & Wortendyke, for defendant.
(Syllabus by the Court.)
Bill by Gottlieb Gennert against Edmund Wuestner for an accounting. Decree for complainant.
J. A. Beecher, for complainant.
Carrick & Wortendyke, for defendant.
PITNEY, V. C. This is a bill for an account of—among other things—certain commissions on goods manufactured by the defendant, and by him sold to various parties, the right to which depends upon a written agreement entered into between the parties, and bearing date the 1st of April, 1890. There were other large transactions between the parties, in the way of goods sold and delivered by each to the other. As to these the dispute is wholly one of prices. In answer to the demand for commissions upon sales of the defendant's own goods, the defendant set up in his answer that on or about the 1st of January, 1891, after the agreement had been in practical operation between the parties for nine months, the defendant repudiated and rescinded it on the ground that the complainant had persistently broken it on his part, and that the complainant acquiesced in this rescission, and from thenceforth the agreement, except as to a lease embodied in it of certain lands, was treated by both parties as of no further binding force between them. There was a cross bill combined with the answer, and a reply by the complainant to the cross bill, which need not now be stated at length. At the hearing of the cause the defendant offered evidence tending to show that the agreement in question, although dated on the 1st day of April, which occurred on Tuesday, was in fact executed and delivered on the previous Sunday, and was therefore void. He stated as an excuse why this defense was not set up in his answer that he was not then aware that the agreement was thereby rendered unlawful. The evidence of execution on Sunday was excluded at that time because there was no allegation in the answer to support it, and the complainant had not come prepared to meet it, and I was not satisfied that it was proper to allow such an amendment, under the circumstances. Leave was granted to the parties to be heard upon the question of the propriety of the amendment, and briefs were submitted on that point, upon which I concluded that the amendment should be allowed, and I so announced to the respective counsel. In point of fact, it never was made, but the parties went to hearing on the question of the date of the execution and delivery of the agreement as if the amendment had been made, and testimony was taken on both sides upon that point.
The agreement was prepared in duplicate, from previous instructions therefor, by Mr. H. W. W., of the Jersey City bar, and was executed in his presence. He at the time lived with his father, in the immediate vicinity of the residences of the two parties. All agree that the actual execution of the duplicates took place in the father's house, both parties signing them at one time, and that they were then and there mutually delivered. The question is whether this occurred on Sunday, March 30th, or Tuesday, April 1st.
Mr. H. W. W. swears that he believes that it occurred on Sunday, March 30th, and he has a distinct recollection that it occurred about 11 o'clock a. m. He distinctly recollects that the parties called unexpectedly upon him while he was sitting reading the newspaper after a late breakfast,—a thing which he never did except upon Sunday mornings. Moreover, he finds in his diary and cash book several entries as follows: In the diary, an appointment for a meeting at his father's house with the complainant, Gennert, for Sunday, March 23, at 11 o'clock in the morning. At this time, according to the defendant's theory, the instructions for the agreement were given. Further, an entry in his cash book, under date of March 30th, of $10 for drawing the agreements, which sum he swears that he distinctly recollects was paid at the time the agreements were executed. Further, an appointment in his diary for March 31st, but entered before that date, as follows: "Draw lease 22 & 24 Jackson avenue to Edward Wuestner, $45, 5 years from." A further entry in his diary of an appointment for April 1st: "7:30, Gennert." A lease from Gennert to Wuestner, for five years, for 22 and 24 Jackson avenue, was in fact incorporated into the contract in question, but Mr. W. did prepare a separate lease of the premises upon the same terms, which was handed to complainant, but was never executed. Mr. W. was the first witness sworn, and then left the court, and was not recalled. After him, complainant and defendant and their several sons were sworn.
The defendant, Wuestner, corroborates Mr. W. He says that the verbal bargain between himself and Gennert was made some time previous to April 1st, and Mr. Gennert was to have the writings prepared; that some time during the week previous to Sunday, the 30th of March, Mr. Gennert told him to call at hishouse on Sunday morning, and go with him to Mr. W.'s house, and execute the papers; that he called at Gennert's house about 10 a. m. on Sunday, and that they went together to W.'s house, and found Mr. W., who produced the type-written agreements; that he (Wuestner) objected to one clause, which was thereupon stricken out, and they were then executed and delivered, and each party paid five dollars to Mr. W.; that Mr. W. remarked that, if Mr. Gennert desired to sell the premises covered by the lease before the expiration of the contract, he would wish to turn over to the purchaser the lease of the premises, and that the long contract in which the lease was incorporated would not be convenient for that purpose, and that he had better have a separate lease; and that it was agreed there should be a separate lease prepared and executed. Wuestner's two sons corroborate him. They were living at home, and they swear that they were informed by their father of his expectation of executing the contract on that Sunday; that their father left home a little before 10 o'clock in the morning to go to Mr. Gennert's for that purpose; that they remained in the house all the forenoon, and had dinner a little later than usual, because of its being Sunday; and that their father came in before dinner time, and produced his copy of the contract duly executed. This evidence, it will be seen, fits in with the testimony of Mr. W., and the entries in his diary, the theory being that instructions for the preparation of the contract were given by Mr. Gennert alone on Sunday, March 23d; that the contract was prepared during the week; that on Sunday, the 30th, the parties went together to Mr. W.'s house; that the contracts were then read over, and the clause which was objectionable to the defendant stricken out, and they were then executed and delivered; a suggestion with regard to the separate lease was made; memorandum was then made in Mr. W.'s diary to prepare such lease on the next day (Monday, the 31st) and to be ready to attend to its execution on April 1st, at 7:30 a. m. Mr. Gennert, on the other hand, swears that he went to Mr. W.'s house on Saturday night, the 29th of March (and denies any previous interview or appointment for the previous Sunday), taking his son with him, and that they found Mr. W.'s father in; that the father declined to attend to his business, and told him to come the next morning, when his son would be in; that the next morning (the 30th) he and the defendant went together to Mr. W.'s house, found the son in, and that they then and there agreed upon the items of the agreement which Mr. W. wrote down from their instructions, and after the memoranda thereof had been read he (the complainant) paid the $10; that Mr. W. said he would have it written out in type, so that they could execute it; that he fixed Tuesday morning, April 1st, for that purpose; that they went together on Tuesday to the house, and executed the contract, and it was there delivered, but whether the contract was executed and delivered in the morning or evening of April 1st he is unable to say; that the unexecuted lease which Mr. W. prepared was made at his suggestion, but that he concluded not to have it executed. He says that the defendant's objection to the clause which was stricken out was made on the 1st of April. This witness declared that he never saw young Mr. W. In the matter until Sunday morning, the 30th of March. Mr. Gennert's son swears that he went with his father on some Saturday evening—but whether that of the 22d or that of the 29th of March he cannot say—to Mr. W.'s house, and saw the elder Mr. W., who told them to come the next morning, and his son would be In; that he saw his father go to Mr. W.'s house the next morning, but did not see the defendant go with him; that his father did not bring home the agreement executed with him the next morning, but he did see it within a week or so.
Taking all this evidence together, I come to the conclusion that the agreement was executed on Sunday, the 30th of March, and delivered on that day. That theory fits in with the evidence of Mr. W. and the entries in his diary; and the evidence of all the witnesses is reconcilable with it, except that of the complainant, Gennert. The difficulty with his evidence is that it fails to account for the appointment entered in Mr. W.'s diary for a meeting on Sunday, March 23d, presumably for the purpose of taking instructions for the agreement. It also fails to account satisfactorily for Wuestner's objection to one of the clauses of the agreement, and Gennert's prompt consent to its being stricken out, which clause, according to Gennert's evidence and theory, Wuestner had agreed to only two days previously. By postponing the date of the call made by himself and son, in the absence of Wuestner, at Mr. W.'s house, on a Saturday evening from Saturday, the 22d, to Saturday, the 29th, he makes Wuestner meet him at Mr. W.'s house on Sunday morning, March 30th, to give the instructions, without any previous appointment therefor. Another small matter indicates the truth of the defendant's theory. Wuestner swears, and Gennert admits, that Wuestner came to his house first, and they went together to Mr. W.'s house. Gennert's son swears that he saw his father go to W.'s house on a Sunday morning, but did not see Mr. Wuestner go with him. That evidence is consistent with the theory that the instructions were given by Gennert to Mr. W. on the previous Sunday (March 23d), in pursuance of an appointment for that purpose entered in Mr. W.'s diary, the trip for that purpose having been seen by the son, while he did not happen to see the parties going together to Mr. W.'s house on March 30th. Again, Mr. W. swears he was not expecting the parties to call on that Sunday morning (March 30th), which is inconsistent with the Idea that Gennert had called the previous evening, and had been requested by Mr. W.'s father to callthe next morning. If the father had so Informed Gennert, it is altogether probable that he, in turn, would have Informed his son of the appointment.
It remains to consider the effect of this fact upon the rights of the parties herein involved. The contract in question contained a lease from Gennert to Wuestner of certain premises in Hudson county at a monthly rent of $45, the same to be used for the manufacture of photographic gelatine, dry plates, and films. It further provided for the sale by Gennert to Wuestner, at prices to be agreed upon, of all goods necessary for the manufacture of said plates and films, Gennert to take pay for the same in dry plates. Further, that Wuestner should give Gennert the exclusive wholesale agency for the sale of the goods so to be manufactured by him, and the retail agency for New York and Connecticut. Further, Wuestner agreed to sell Gennert prepared dry plates, in sizes and qualities to suit Gennert, at a discount of 45 per cent. from the list price then in common use. Wuestner further agreed to purchase all his materials from Gennert, and to pay balances on the first day of each month, and to pay Mr. Gennert a fixed commission on all sales made by Wuestner of his product to other parties during the term of the lease and agreement, viz. five years. The law governing this case seems to me to be entirely settled in this state by the cases of Reeves v. Butcher, 31 N. J. Law, 224, and Cannon v. Ryan, 49 N. J. Law, 314, 8 Atl. 293, in the supreme court, and Ryno v. Darby, 20 N. J. Eq. 231, and Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252, in this court. The contract is wholly void, and incapable of ratification, and must be entirely ignored, in dealing with the business transactions between the parties, precisely as though no such writing had ever existed. The case is not complicated by any circumstance of payment of money, delivery of goods, or possession of the demised premises having been made on Sunday. I infer from the evidence that the defendant was already in possession of the demised premises under a former arrangement. If this be so, the case falls directly within the ruling of the supreme court in Cannon v. Ryan, supra, where it was held that if a tenant already in possession under a lease at a fixed rent remains in possession after the end of his term, and after notice served upon him, on Sunday, that after the expiration of his term his rent would be increased, he does not thereby become liable to pay the Increased rent. In this case, if the defendant was in possession under a fixed rent, such rate of rent will continue, except so far as it has been changed by the voluntary action of the parties. So with regard to goods sold by defendant to complainant. The prices fixed therefor by the agreement must be wholly ignored. If any settlements have been made, of either rents, or goods sold upon accounts stated, such settlements will not be disturbed by the finding of this court that the contract is void, but will stand as the voluntary act of the parties. Neither party will be entitled to call upon the other for any accounting under the contract in question. Complainant cannot have commissions on sales by defendant of his own wares to other parties, and defendant cannot have an account of sales made at retail by complainant in places prohibited by the contract.
The main object of the bill was to reach commissions on sales made by defendant of his own product, provided for under the contract. If the illegality of the contract had been set up in the answer in the first instance, and that issue had been, as it should have been, tried at the start, I am inclined to think that the bill should have been dismissed on the ground that there was no occasion to come to this court. The defendant, however, put himself in his answer on different grounds, and added a cross bill calling on complainant to discover sales made in violation of the contract, which he has done; and it was not until after all of this proceeding had taken place, and the parties had gone to trial, that the defense now established was set up. Under these circumstances, as there are unsettled mutual mercantile accounts between the parties, which, if sufficiently complicated, give this court jurisdiction, I think the bill should be retained, and a reference made to take and settle the account. The evidence already taken on that part of the case will be used before the master.