Opinion
01-23-1903
RILEY v. PITHIAN et al.
Clement H. Sinnickson and W. A. Logue, for complainant. E. A. Armstrong and David J. Pancoast, for defendants.
Action by Franklin Riley, trustee, against Francis R. Fithian and others. Motion to strike out parts of bill. Refused.
Clement H. Sinnickson and W. A. Logue, for complainant.
E. A. Armstrong and David J. Pancoast, for defendants.
GREY, V. C. (orally). This matter may be presently disposed of, as the elaborate arguments of counsel on both sides have fully discussed every view which may be taken of the points in dispute. The bill of complaint is filed by a trustee, who devotes the first 12 or 13 pages of the bill to a definition of the origin and character of his trust. The principal defendant is Francis R. Fithian, who is alleged on the face of the bill to have been the agent of the complainant, whom he employed to sell the trust property. The other defendants are parties claimed to have been associated with Mr. Fithian in the doing of the acts alleged to be wrongful. The bill alleges that the trustee employed the defendant Fithian to effect a sale, and charges that he and those he associated with him have wrongfully retained part of the trust property, and have sold and retained the profits of another part; that these acts were concealed from the complainant (trustee), and have resulted in great loss to the trust estate. The trustee complainant states the details of the transactions so far as they have come to his knowledge, and asks a disclosure of all the incidents whereby the title of the trust property has been disposed of, and an accounting for, and the payment back to the trustee of, the profits of the trust property wrongfully retained, and also a reconveyance of the portion of the trust lands, which, it is alleged, have been wrongfully obtained by the defendant Fithian for his personal use.
The bill of complaint is challenged under the 213th rule, in three particulars: The first is as to the 12 or 13 pages in which the trustee narrates the origin and the terms of his trust. The criticism made of this portion of the bill is that it is wholly immaterial as to whether the complainant is trustee or not; if he is, it is wholly immaterial what the terms of his trust are; that the gravamen of his bill is the demand that the complainant should have an accounting from his agent employed to dispose of his property; and it is insisted that the origin and nature of the trust under which the complainant holds the lands in question may be wholly left out without any detriment to the complainant's case. An examination of the bill of complaint indicates that the narration of the origin of the trust under which the complainant holds the trust property is necessary, in order to show who are the cestuis que trustent, who, in proceedings affecting the trust property, should be made parties, unless the securing of their appearance is greatly inconvenient or practically impossible. The Court of Appeals settled this in the case of Tyson v. Applegate, 40 N.J.Eq. 311. To strike out the history of the origin of the trust would leave the complainant declaring that he was a trustee, without disclosing his trust, or showing who were entitled to the benefits of it. The narrative of the creation of the trust is somewhat extended, but the transactions out of which the trust grew were themselves both complicated and voluminous. They cannot be stricken from the record without crippling the complainant's statement of his cause of action. The above objection to the bill must be overruled.
The next criticism of the bill of complaint is that it contains an allegation that there was a consultation between the complainant and his counsel touching the transactions involved, and a direction by complainant to his counsel that they should make such inquiry as to the facts as might be necessary to enable him to take legal steps for relief. This is objected to as irrelevant The obligation upon a party who thinks he has reason to believe he has been defrauded of property is to make diligent inquiry, and pursue his remedy before the defendants, if they be in fact fraud doers, may so act as to change the nature of the title or involve persons who are innocent as to the fraud. If, upon the face of the bill of complaint, it appears that the complainant has supinely slept afterwarning of his danger, he might be liable to a charge of laches from a party who, because of this negligence, might have become a bona fide purchaser of the property. The insertion of a clause tending to explain delay in procedure, or to show diligence, while not of vital importance, is in no way prejudicial or embarrassing to the defendants. It should not be stricken out of the bill.
The third criticism of the bill of complaint is the insertion therein of a copy of a letter written by the counsel of the complainant to the defendant Fithian at or about the ending of a correspondence between them regarding the subject-matter of the present lawsuit The objection is that this letter is wholly irrelevant and immaterial as a part of the complainant's statement of his cause of action; that it is in the nature of a law brief, and has no proper place in the bill of complaint The letter in question is a statement by complainant's counsel to the defendant Fithian of his view of the legal basis of complainant's claim, and expresses a willingness to confer for "adjustment without recourse to the courts," etc. It occupies about one page of the bill. In equity costs are not necessarily awarded to the successful party in the final decree. The showing on the face of a bill of complaint that previous to its filing the defendant had been warned of his equitable duty, and requested to perform it, is a pertinent allegation. The complainant, if successful in the cause, may appeal to the fact that the defendant contested the suit with previous warning of the legal basis of the complainant's claim, as a justification for the allowance of costs.
None of the specified criticisms of the bill of complaint can be sustained. The motion to strike out is therefore refused, with costs.