93 N.J.L. 167 | N.J. | 1919
The opinion of the court was delivered by
This action was brought by the executor of Arnoldine Fischer, deceased, against William F. Spierling and Amelia Spierling, his wife. A separate cause of action is exhibited against the respective defendants. Tlie plaintiff has joined them in one suit under the authority of section 6 of the. Practice act of 1912.
The case against Mrs. Spierling was that plaintiff’s decedent had loaned to her at different times, and in different amounts, the sum of $10,000, and that Mrs. Spierling executed and delivered to decedent as evidence of her indebtedness four separate bonds, each of which was secured by a mortgage on property owned by her. There were prior mortgages upon the property thus, pledged which were subsequently foreclosed. At the sales under tlie foreclosures the mortgaged premises did not produce enough to pay any part
The question of the competency of this offered evidence is not an open one. In the case of Snyder v. Blair, 33 N. J. Eq. 208, where a similar contention was put forward on an attempt to enforce a decree for deficiency, it was held that the sum for which the mortgaged preanises were sold anust, so long as the .sale stands, be taken, as between the paities to the suit, as a conclusive test of the value of the mortgaged premises; the price realized at the sale, whether it be more or less than is required to pay the amount adjudged to be due by the decree, being the only known legal .standard of value. The same question came before this court iar the later case of Currie v. Sisson., 34 Id. 578, and the doctrine of Snyder v. Blair was unanimously approved by us.
The judgment against Mrs. Spierling will be affirmed, with costs.
The case against the defendant William E. Spierling was as follows: First, that he sold certain lots to Mrs. Pischer, falsely representing to her that they were free from encum
Tlie court charged the jury with relation to the first of these transactions that the plaintiff was entitled to recover the amount paid by Mrs. Fischer in oi’der to' free her land from the lien of the existing encumbrance; the theory upon which the instruction was rested, being that as Spierling had contracted to sell the land to her free from encumbrance, he was in law hound to relieve the land from those which existed at the time of the sale to her.
With relation to the second transaction the court charged the jury that the plaintiff was entitled to recover from Spierling the amount of the purchase-money paid by Mrs. Fischer at the foreclosure sale of the prior encumbrances, amounting, with interest, to something like seventeen thousand dollars.
The correctness of the rule with relation to the damages recoverable upon the first branch of plaintiff’s claim against William Spierling is not challenged. It is contended, however, that the court erred with relation to the measure of damages to be awarded upon the other transaction; and we concur with defendant’s counsel that this instruction was erroneous. The plaintiff’s decedent was induced by the false representation of Spierling to invest $6,000 in securities which were utterly valueless. The effect of this investment was to cause a total loss of these moneys, and the extent of the defendant’s obligation was to reimburse her for that loss.
For the reason last stated the judgment against William F. Spierling must be reversed, and the record remitted in order that a venire de novo- may issue.
For affirmance as io Amelia Spierling — Ti-ie Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Iyalisch, Black, White, Heppent-ibimer, Williams, Taylor, Gardner, JJ. 14.
For reversal — Hone.
For affirmance as io William Spierling — Hone.
For reversal — The Chancellor, Chief Justice, Swayze. Trenchard, Parker, Bergen, Minturn, Iyalisch, Black, White, IIeppenheimer, Williams, Taylor, Gardner, JJ. 14.