Opinion
07-05-1888
HULSIZER'S ADM'RS v. OPDYKE et al.
J. M. Davis, for complainants. Frost & Roseberry, for defendants.
On rehearing. For former opinion, see 13 Atl. Rep. 669.
Bill by Hulsizer's administrators against Opdyke and others, to foreclose a chattel mortgage. The mortgage contained a covenant on the part of the mortgagor not to trade and exchange any of the chattels without the written consent of the mortgagee, but further covenanted that, in case he did, the chattels so obtained should be held and taken in place of those disposed of.
J. M. Davis, for complainants. Frost & Roseberry, for defendants.
BIRD, V. C. The complainants ask for a rehearing. They desire to open the case, and to offer additional testimony. As the case stands, the conclusion of the court, they think, does them an injustice. Whether that injustice arises from a mistaken application of the law or not, they seem to think it is clear that, if they can have an opportunity to present certain additional facts, the conclusion of the court will be very different. One of the excuses for this motion, and for the desire to offer additional testimony, is that they were misled by the ruling of the court during the progress of the former hearing. Then the defendants offered to show what the meaning of the words "trade and exchange" is in the community where the parties resided, and this offer the court rejected; saying that there was no doubt respecting their meaning, and also saying that the court had already determined upon the proper application of those words, and of the rights of the parties under the instrument in which they occurred. The complainants now say, by their counsel, that it was this judgment of the court which misled them. They now say that they are prepared to show that after the execution and delivery of the chattel mortgage, and after the amount of money therein agreed to be paid had become due, the parties thereto very often spoke to each other with respect to the payment on the one hand, and to the nature and extent of the security on the other. They say that they are prepared to show that the understanding between the parties was that the mortgage included not only the articles named, and all articles which might be acquired by Opdyke, either by trade or exchange, according to the views of the court heretofore expressed, but also all other articleswhich he might acquire by use or application of any money for that purpose, so that the articles so acquired took the place of the articles named in the chattel mortgage. They also say that when Mr. Hulsizer, in his life-time, demanded payment, that Mr. Opdyke would excuse immediate payment by saying that he was perfectly safe, and would point out to Mr. Hulsizer the various articles named in the mortgage, including various ones which, from time to time, had been purchased or otherwise acquired by him in place of those which had been disposed of or which had died. It is also said that these same remarks, assurances, and promises were made, over and again, to the complainants as administrators. Counsel declares that witnesses were present in court ready to establish, by their testimony, the foregoing statements; and says that he did not offer them at the hearing, because he supposed that the judgment of the court, with respect to the offer of the defendants above alluded to, included the offer which he was about to make. He says that this impression was not removed from his mind until he saw the conclusion of the court, when it occurred to him that the judgment of the court did not extend to the branch of the case which seemed to him to be of so much importance, and hence this application for relief by way of rehearing. "While it seems to me, upon the case as it was presented at the hearing, that the views which have been expressed show the true relation of the parties and their obligations to each other, yet it is quite clear also that if what is stated above can be substantially established there may be just grounds for modifying the judgment of the court. If the mortgagor said to the mortgagee, when the latter demanded payment, "You are perfectly safe; it is true, all the original articles are not here, but these that are here now stand in the place of those, and you are as fully secured as you were in the beginning,"—and thereby obtained further time for payment, it would seem to make out quite a strong case against the defendants,—a case which, it maybe, estops him from standing by any denial. Had the bill been framed to meet such a case, and had the testimony been offered at the hearing, it seems to me that it would have been admitted. It is true this view of the case has not been very fully argued before me, but my strong impression is that a bill could be so framed as to make the question presented by the above statement a perfectly legitimate issue in a court of equity.
Without saying more as to the condition of the pleadings, or as to the real merits of the proposed issue, it only remains to determine whether, under the practice of the court, the complainants can have relief at this stage of the suit. It is plain that courts, both at law and in equity, are growing more and more liberal in their efforts to afford to suitors a full and complete hearing. To this end step after step has been taken in advance to prevent wrong or injustice. And this desire, or rather willingness, of the court is not only manifested in cases which have the appearance of fraud or of surprise, but also in cases which arise from the oversight, mistake, or negligence of counsel. While to my mind, in looking at the case, it seems plain that the counsel should have offered the proof which he says he was prepared to offer, yet it was an omission or a mistake which might reasonably enough occur from the course which the litigation had previously taken, and from the decision of the court with respect to the testimony offered by the defendants. I think the ease should be opened, and the complainants permitted to offer testimony upon the point indicated. In this respect I think I am fully sustained by the case of Sharp v. Wyckoff, 39 N. J. Eq. 95. This is not to encourage negligence in suitors. It is simply a recognition of the imperfection of all human efforts, and an acknowledgment of the fact that counsel who have a certificate of ability and fitness are not exempt from the common infirmity. Justice should not be the waited for such a reason. The petitioners must pay the costs of this application.