Finnie v. Kelsey

95 N.J.L. 163 | N.J. | 1920

The opinion of the court was delivered by

MiNturN, J.

Without calling any witnesses, or submitting any testimony in support of ber claim, and depending only upon the admissions of the pleadings, the plaintiff submitted her case. The defendant by her witnesses then proved the following facts, after wbicli the trial court directed the jury to find for the defendant. From that direction this appeal is taken. David T. Finnie was the holder and owner of an insurance policy on his life, issued by the Equitable Life Assurance Company for $5,000, upon which Finnie was indebted to the company in the sum of $120. Finnie applied to one Herenden to find him a purchaser for the policj, which at that time had no surrender value, and no. loan value. Herenden found this defendant as a purchaser. Finnie thereupon agreed with defendant to sell the policy to her for the difference between the surrender value of $215 at the end of the third year and the $120 due to the company, in order to create that surrender value, Finnie thereby to receive $95. This agreement was reduced to writing and signed by Finnie. The defendant for the purpose of raising the necessary funds applied to Herenden, her employer, for the cash. Herenden arranged it by talcing Finnie’s note for the amount and discounting it through Herenclen’s bank, after which Finnie received his $95, and the insurance company received its $120, and the policy was thus carried over the danger period.

The defendant afterwards paid Finnie’s note when it matured, and Finnie executed an assignment of the policy to defendant. Finnie thereafter died and. the defendant collected the amount clue on the- policy, to recover which this suit is brought.

The plaintiff now insists that the assignment of the policy was executed only as collateral seeurily for the payment of the note. There is nothing to evidence that contention, while the entire volume of the testimony is to the contrary.

The defendant after the assignment to her paid all the premiums on the policy, as thej matured, until Finnie’s death, about two years and nine months after the assignment, and the latter in the interim made no claim upon the defendant for the policy, and made no attempt to pay or to tender to her the amount due to her for her advancements.

This factual status presented m> question for the jury to consider, since the material facts were all conceded. Whatever ciaini the plaintiff might be able to maintain in equity upon the contention made here, she presented no debatable issue on the record for a jury to consider. In any event the onus of sustaining her case by competent proof concededly was upon the plaintiff, and we are unable to perceive any proof of that character in the case, or any proof which in its logical or legal effect can be said to generate a controversial question. In that situation the learned trial court properly directed a verdict.

Our examination of the contested' procedural errors discussed by counsel leads us to conclude that they were properly disposed of by the learned trial court, and that the substantial rights of the plaintiff, under the twenty-seventh section of the New Practice act, upon an examination of the whole case, cannot be said to' have been injuriously affected by such disposition.

The judgment therefore will be affirmed.

For affirmance — Savayze, TbeNCHARd, Pakkek, BERGEN, Kalisch, Katzenbach, White, HkppkNhetMek, Williams, Tayloe, AoKERSON, JJ. 11. For reversal — None.