Opinion
05-11-1926
MELIS et al. v. GOLDSTEIN et al.
Vincent J. Paterno, of Passaic, for plaintiffs. Ward & McGinnis, of Paterson, and Weinberger & Weinberger, of Passaic, for defendants.
Indebtedness having been incurred by written contract specifically set up in original complaint in mechanic's lien suit, plaintiff's motion to amend complaint by adding counts setting up other defendants' agreement to pay indebtedness will be denied.
Action by Joseph Melis and another, trading as the Melis & Antuzzi Company, against Max Goldstein, Samuel Eichenbaum, and others. On motion by defendants Eichenbaum and others for a nonsuit and plaintiffs' motion to amend their complaint. Motions denied.
Vincent J. Paterno, of Passaic, for plaintiffs.
Ward & McGinnis, of Paterson, and Weinberger & Weinberger, of Passaic, for defendants.
NEWMAN, J. This case was originally before me on motion to amend the lien claim, which amendment I denied, for the reason that, as the last work was done on September 11, 1924, the time to issue a summons expired on January 11, 1925, and the summons was not issued until January 12, 1925, in which event I held that the lien had been discharged by the statute.
When the matter came on for trial, motions for nonsuit were made by the defendants other than the builder, based upon that same ground. That motion for nonsuit is resisted now for a reason which was not raised on the former motion, viz. that January 11, 1925, falling on Sunday, the summons was properly issued on January 12, 1925. This question was not raised or discussed on the former motion to amend.
On the question of issuing the summons on Monday, January 12, 1925, the Supreme Court, in dealing with a similar situation, and setting forth the principles which it gathered from Stryker v. Vanderbilt, 27 N. J. Law, 68, says that a construction of the law permitting an act to be done on the first succeeding day, where the last day of the period within which the act is to be done falls on Sunday, is "plainly the one best calculated to subserve the interests of the parties, * * *" and that "a similar rule should be adopted in construing statutory proceedings requiring acts to be done by parties in the course of judicial proceedings."
It is suggested that such rule does not obtain as to acts to be done by parties, but only as to things to be done by the court, but in Von de Place v. Weller, 64 N. J. Law, 155, 44 A. 874, the present Chief Justice suggests that it is doubtful whether such distinction rests upon any solid foundation, and I therefore hold that on that ground it was sufficient to issue the summons on January 12, 1925.
It is further urged by defendants that, regardless of the question of Sunday, the lien was discharged because the summons should have issued on the 10th of January, 1925, or before the last day of the four months from the doing of the last work.
It is true that section 18 of the Mechanic's Lien Act (3 Comp. St. 1910, p. 3305), provides that the summons shall issue within four months from that date, but those words do not operate to exclude the last day of the four months' period. Otherwise, if an act was to be done within one day of a certain event, the act would have to be done on the day of the event, the statement of which seems to demonstrate the unsoundness of the argument. The motion for nonsuit will therefore be denied.
Plaintiffs move to amend their complaint by adding other counts, setting up that certain other defendants agreed to pay the indebtedness. The indebtedness seems to be incurred by a contract in writing, specifically set up in the original complaint, and for that reason the motion to amend by adding other counts will be denied.
The case will be put on the list of cases for trial for the week of May 17, 1926.
Action by Herbert J. Koehler, receiver of J. R. Tucker, Incorporated, against William Richman. Judgment for defendant.
Louis B. Le Duc, of Camden, for plaintiff. Waddington & Mathews and Edward C addington, all of Camden, for defendant.
DONGES, J. This suit is brought to recover the balance of commissions alleged to be due to J. R. Tucker, Incorporated, from the defendant. This case is submitted to me for determination without a jury, upon stipulated facts.
The following agreement was entered into:
"October 20, 1925. "J. R. Tucker, Inc., 313 Market Street, Camden, N. J.—Dear Sir: In consideration of your effecting sale of premises known as 428, 430, 432, 434 Broadway, Camden, N. J., for one hundred and forty-two thousand ($142,000) dollars, to do which you were authorized, we hereby agree to pay you 5 per cent. commission on one hundred thousand ($100,000) dollars, commission amounting to five thousand ($5,000) dollars, and 3 per cent. commission on forty-two thousand ($42,000) dollars, commission amounting to twelve hundred and sixty ($1,260) dollars; total commission amounting to sixty-two hundred and sixty ($6,260) dollars. One thousand ($1,000) dollars of the abovementioned commission is handed you herewith, and we agree to pay you one thousand ($1,000) dollars on November 24, 1925, and one thousand dollars ($1,000) on December 24, 1925; balance of commission, amounting to thirty-two hundred and sixty ($3,260) dollars, to be paid at lime of final settlement, March 20, 1926. "Yours very truly,
"[Signed] Wm. Richman."
By the terms of the agreement of sale, which was dated October 20, 1925, $5,000 was paid on the execution of the agreement, $5,000 was payable November 24, 1925, and another $5,000 was payable December 24, 1925. Settlement was to take place March 1, 1926, when a first mortgage of $100,000 and a second mortgage of $10,000 were to be executed and delivered, the balance of the purchase price of $17,000 was to be paid in cash. The agreement of sale was between William Richman and Flora S., his wife, of the first part, and "J. R. Tucker, Inc., agent for Samuel Spring, of the city and county of Camden and state of New Jersey," of the second part.
The defendant paid to Tucker $1,000 on account of commissions on October 20, 1925, and on November 24th, when the second installment of $5,000 was paid by check of J. R. Tucker, Incorporated, the sum of $1,000, being the second installment on commissions, was paid. The installment of $5,000 coming due on the 24th of December, 1925, was not paid. An extension was requested by J. R. Tucker, Incorporated, and granted to a date in January, on which date Richman threatened to forfeit the deposit money, whereupon Tucker recorded the contract and requested a further extension to the 1st day of March, 1926, and a still further extension to April 15, 1926, both of which were granted. On or about April 15, 1926, Tucker, Incorporated, advised the defendant that the contract would not be performed on the part of the buyer, and the settlement never took place, due to the default of the purchaser. On June 8, 1926, plaintiff, Koehler, was appointed, by order of the United States District Court for the District of New Jersey, receiver of J. R. Tucker, Incorporated, and has qualified and is now acting as such receiver.
The authority of J. R. Tucker, Incorporated, to act for Spring, appears by the following correspondence between said J. R. Tucker, Incorporated, and Spring:
"October 12, 1925. "Received of Samuel Spring the sum of ten thousand ($10,000) dollars to be used in the purchase of real estate at the discretion of the undersigned, fifteen thousand ($15,000) dollars in addition to be placed in the hands of the undersigned on or before three weeks from this date.
"[Signed] J. R, Tucker, Inc.,
"J. R. Tucker, Pres.
"Accepted:
"[Signed] Samuel Spring."
"October 13, 1925.
"J. R. Tucker, Inc., and Mr. J. R. Tucker, President, Federal Street, Camden, N. J.—Dear Mr. Tucker: In reference to our conversation yesterday and the $10,000 which I left on deposit with you at that time, I understand that the arrangement we entered into included the following understanding:
"(1) That title to all property acquired byyou with my money would be taken in the name of J. R. Tucker, personally, as trustee, or in my own name, as I should elect.
"(2) That you in no way have any authority to commit me to any obligation in excess of $25,000 agreed upon.
"(3) That the money which I deposit with you shall, as usual, be deposited in a special trustee or agency account by you.
"(4) That you will keep me advised of each and every deal that you make, and let me have for my records copies of all papers or contracts entered into.
"The above is the usual precaution which I think a company of your size would take to protect its customers. I am happy to follow your discretion in the purchase or sale of such properties in Camden or immediately adjacent thereto which you may deem advisable. I am hopeful that you will give me some action, plus some pleasant surprises.
"I have checked over my financial commitments here, and I see no reason whatsoever why I shall not be able to send you the additional $15,000 before the end of this month.
"Kindly let me know when you are next coming to New York, so we can go to lunch together. If I can be of any service to you in your plans hereabouts, I shall be happy to cooperate with you, because it is always my theory of doing business that things must be mutual, and one must give as well as take.
"After the way Mr. David Stern spoke to me about you, I haven't any hesitation to trust you as I have. The amount of money involved means a good deal of money to me, because I am not a wealthy man, but, having confidence in Camden by reason of my observation there, and of you by reason of what Mr. Stern said, I look forward to my arrangement in Camden with confidence.
"Yours very truly,
"[Signed] Samuel Spring,
"SS—m S. Spring, Secretary-Treasurer."
"October 16, 1925.
"Mr. Samuel Spring, Secretary-Treasurer, First National Pictures, Inc., 383 Madison Avenue, New York City—Dear Mr. Spring: I am in receipt of your letter of October 13th, outlining the basis on which I am to handle the money you are placing with me to invest. The terms as outlined in your letter are according to our verbal agreement, so that your letter will serve as a contract between us.
"I have already made a purchase in your account, and will give you your copy of the agreement when I see you in New York the coming week.
"Very truly yours,
"JRT:KT [Signed] J. R. Tucker, Inc."
"November 5, 1925.
"Mr. J. R. Tucker, 313 Market St., Camden, N. J. —Dear Mr. Tucker: In reference to the property which you bought for me, I want to thank you for your assurances to me that I need not worry about the additional payments on settlement dates; that, if for any reason the property is not sold by that time, you will finance me, so that we can take up these payments and I will not lose my down payments.
"I shall not be in a position to arrange these finances, and therefore your assurances have relieved ray mind. I am right now in the midst of some very busy things for First National, since we have let our sales manager go and I am supervising sales, which is a pretty big job. Therefore I am going to forget about this property, and leave it all up to you, since I have no worries about payments on settlement dates.
"Thanking you for your assistance, and the kind way you have carried out my Wishes that you should not obligate me for more than $25,000, I remain,
"Faithfully yours, [Signed] S. Spring.
"SS—m S. Spring."
"January 15, 1926.
"Mr. J. R. Tucker, c/o Tucker & Co., Market Street, Camden, New Jersey Dear Mr. Tucker: I have been checking over the documents which were signed in connection with the property in Camden, and I notice that, in regard to the piece on Broadway, you have signed, 'J. R. Tucker & Co., Inc., agent for Samuel Spring.'
"I wish to make it clear that according to our agreement you had no authority to obligate me to any further payments, and that the only-obligation on this contract of purchase is that of J. R. Tucker, and that I am not bound thereby.
"It is true that I have consented to your put ting my money on a basis where it may be necessary for further payments to be made to protect it, but this was upon your assurances that you would take care of it. At no time did I bind myself to make further payments. I suggest that you make this clear to the seller of the property.
"I have written to you on this matter, since I thought it to be of interest to both of us that there be no misunderstanding. With kind regards, I am,
"Yours very truly,
"[Signed] S. Spring."
It is stipulated that the defendant at no time, had knowledge of the letters, or of the relations existing between J. R. Tucker, Incorporated, and Spring, except as was disclosed to him by the agreement of sale.
The question to be determined is whether, upon this statement of facts, the plaintiff is entitled to recover the balance of commissions in accordance with the agreement between the Tucker corporation and the defendant. It is admitted that the defendant, Richman, knew nothing of the extent of the authority of the broker. Tucker did not disclose that its agency was a limited one, although it must have been known by Tucker that the payments called for upon the Richman contract alone exceeded the amount which Spring was prepared to pay for all purchases on his account. The further conclusion is irresistible that Tucker had made other contracts for Spring's account, because on October 16, 1925, four days earlier than the contract with Richman was made, Tucker wrote to Spring and said:
"I have already made a purchase in your account and will give you your copy of the agreement when I see you in New York the coming week."
Further, in his letter of January 15, 1926, Spring uses this language: "I have been checking over the documents which were sent in connection with the property in Camden, and I notice that, in regard to the piece on Broadway, you have signed, 'J. R. Tucker & Co., Inc., Agent for Samuel Spring.' I wish to make it clear that you had no authority to obligate me to any further payments, and that the only obligation on this contract of purchase is that of J. R. Tucker, and that I am not bound thereby," etc. This repudiation was not denied by Tucker, and it must therefore be assumed that Tucker, in making the contract with Richman, knowingly acted beyond the scope of its authority.
A reading of the correspondence leads to the conclusion that Tucker, Incorporated, obligated itself on other contracts for Spring's account, but knowing that, if these contracts were not sold before the time when further payments and final settlements were required, neither Spring, nor Tucker, out of Spring's funds, would be able to make such settlements.
It further appears that Tucker knew, because Spring advised him in his letter of October 13, 1925, and in his letter of November 7, 1925, that he was not able to make the payments required by the various contracts which Tucker had entered into for him, and that Tucker would be required to finance them. Despite this knowledge, Tucker advanced the installment of November 24th, and thereafter procured an extension of the time of payment of the next installment due upon the contract. At no time did Tucker advise the defendant of the true situation. Richman was not informed that Spring did not intend to perform the contract with him. When the installment of December 24th was due, Tucker requested an extension, thus indicating intention of the purchaser to perform, although it then knew that the purchaser would not be able to perform, if he still held the contract when the settlement date arrived.
As it has been said in Carpenter v. Overland Tire Co., 102 N. J. Law, 196, 130 A. 665:
"The essential requisite of an agent in the law is loyalty to his principal, and it is, of course, fundamental that an agent cannot recover from the principal in a case where he has been a party to the sacrifice of that principal's interests without the latter's knowledge and by fraud or intentional concealment."
The recent case of Smith v. Kreps (N. J. Err. & App.) 140 A. 314, held that a failure of an agent to disclose to his principal, the owner, facts which would alter the belief of the owner when he signed the contract that such contract would be performed by the other party, when in fact the agent had such knowledge, operated as a fraud upon the owner and precluded the agent from recovering commissions.
In the instant case, the conclusion is inevitable that Tucker, not only exceeded its authority, but knew when it signed the contract that it was exceeding its authority, and that it was gambling on the sale of this contract, and perhaps other contracts made on Spring's account, and knew further that, unless it was able to sell one or more of these contracts, Spring would not be in position to perform. This was not the character of conduct which the defendant was entitled to receive from the broker. He was entitled to loyalty, and fair dealing, and full information, if the purchaser had imposed any limitation upon the reputed agent in making contracts for him.
I find as a fact, therefore, that J. R. Tucker, Incorporated, concealed the true situation, and that, no settlement having taken place, it is not entitled to recover. It seems so clear that there can be no recovery of commissions in this case that I have not felt called upon to determine whether or not, under the circumstances, the contract was, in effect, that of Tucker, and not Spring.
Judgment will be entered for the defendant.