72 N.J. Eq. 248 | New York Court of Chancery | 1907
(after stating facts).
It will be observed that while, in the charging part of the bill, the complainant alleges that she tendered, as guardian of the alleged lunatic, to Miller, the purchaser of the leasehold, the consideration paid by Miller for it, namely, $3,500, she does not in the prayer of her bill ask that the status quo be restored by the conveyance back to her of the leasehold interest, and the payment by her of the consideration received for it. She prays that the assignment of the lease from Barber to Miller be avoided, and Miller be directed to reassign to her, and that a reference be had to ascertain the amount due from Miller. This prayer must have been based upon the theory that she would prove, as alleged in the bill, not only that Barber was insane, and that an inadequate price was paid for the property, but also that Miller had knowledge of Barber’s insanity, and therefore was not entitled to be reimbursed the consideration money paid by him. There was some attempt to prove that Miller had knowledge, but it entirely failed, and I shall therefore treat the case as if it were one in which the complainant prayed for a restoration of the status quo.
Before the complainant introduced any oral testimony she put in evidence the record of the ejectment suit in the supreme court. At the time of putting this record in evidence counsel for the complainant remarked that he thought it operated as a bar or estoppel against the defendants, and the court inquired whether he desired to rest upon it as such and therefore not to introduce any further or other evidence excepting as to tender. Counsel for the complainant not being willing at that time to take that position, proceeded with the examination of his witnesses and took testimony tending to prove the insanity or lack of mental capacity of. John Barber, the knowledge or implication of knowledge thereof on the part of Miller, the value of the leasehold and the tender made by the complainant to the defendants.
When the defendants began their case and sought to interrogate a witness concerning the mental capacity of John Barber an objection was interposed by the complainant to such evidence upon the ground that the judgment in the ejectment suit was a bar or estoppel. The record of that suit in evidence may be briefly summarized as follows: Miller sued in ejectment for the possession of the second and third floors of the premises No. 879 Broad street, and declared upon the assignment by John Barber of the lease in question. He made as defendants Cecilia (or Sisillia) Barber, Catilda Barber and Elizabeth Barber. The defendants pleaded not guilty. It is quite evident that their defence-was that John Barber, at the time of selling the lease, was insane to the knowledge of Miller, that the latter paid an inadequate price, and that the deed of assignment was void. The trial court left to the jury certain questions of fact and requested special findings. The jurjr, among other things, found that on the day of making the assignment John Barber was mentally incapable of understanding the nature and effect of the transaction in which he was then engaged; that Miller did not know at that time,
“in pursuance of said proceedings, Matilda Barber, one of his daughters, who is also a defendant in this action, was appointed as guardian by the orphans court on October 10th, 1903, prior to the beginning of this action,”
and that said Matilda Barber, together with her mother and brother and sisters, were in actual possession of said second- and third floors at the time of the beginning of the suit, and that no formal tender of any amount to Miller was ever made by or on behalf of John Barber or his guardian.
Upon motion in the supreme court a judgment was ordered to be entered upon this special verdict in favor of the plaintiff.
The contention of the complainant in the suit at bar is that the judgment just referred to in the ejectment suit is a bar or estoppel, or, to properly phrase the matter, is conclusive evidence between the parties hereto, and establishes that John Barber, at the time of the assignment of the lease, was non compos, and therefore that subject is not open for litigation in the pending suit.
The defendant replies, first, that the prior suit was not between the same parties, since Matilda Barber, by whom John Barber brings this suit as his guardian in lunacy, was not a party therein as guardian, nor was John Barber a party.
It is true that judgments are presumptively only conclusive against parties in the character in which they sue or are sued. McBurnie v. Seaton, 111 Ind. 56. And there are numerous instances in which one who was a party in his individual capacity is not bound by the judgment in another capacity, such as executor, trustee or guardian, and vice versa. Davis v. Davis, 30 Ga. 296; Erwin v. Garner, 108 Ind. 488; Lander v. Arno, 65 Me. 26; Terrill v. Boulware, 21 Mo. 254; Rathbone v. Hooney, 58
The absolute necessity of mutuality in estoppels by record requires that the court should not hold a judgment conclusive in favor of a person unless it would be equally conclusive against him.
Parties in the capacity in which they sue and are sued are undoubtedly bound; privies, likewise. But this -is not the limit to which the courts have gone. The courts have held that where a person was either a party to the record in some capacity, or had so allied and identified himself with a party as to have had his rights submitted by his consent to the determination of the court in a given case, he is bound by the judgment as if he was an actual party to the record, and if an actual party to the record in some capacity, is bound in every capacity in which his rights were affected.
Furthermore, in the suit in hand, I find that the supreme court refers to the fact that Matilda Barber was appointed the guardian, and recites that she was in actual possession of a part of the premises, and as guardian requested a reconveyance, and offered to return the amount of consideration upon a proper accounting. Miller v. Barber, 68 Atl. Rep. 276 (Supreme Court, 1905).
I do not, therefore, rest my ruling, with respect to the admissibility of this testimony, upon the fact that Matilda Barber, as guardian, was not a party defendant in the ejectment suit.
I assume, for the purpose of this ruling, that the prior suit was one in which the complainant here, as well as the defendant here, were each parties in the capacities in which they stand in the pending suit.
I ruled that the testimony offered by the defendants as to the mental capacity of John Barber was admissible, and that the judgment in the ejectment suit was not conclusive evidence as between these parties that John Barber was mentally incompetent at the time in question.
The fundamental principle of res adjudicata is that the sub
“A judgment estops the parties only as to the grounds covered by it and the facts necessary to uphold it.” Herm. Estop. 105 § 105. “Even parties and privies are bound only so far as regards the subject-matter then involved, and are at liberty to raise the same questions in another distinct controversy affecting a distinct cause of action.” Herm. Estop. 124 § 118. “And they will not be concluded unless the judgment necessarily involved the matter which it is sought to be held as conclusively settled by the litigation.” Herm. Estop. 291 § 252 et seq.
A verdict and judgment, therefore, are conclusive by way o£ estoppel only as to the facts, without the existence and proof or admission of which they could not have been rendered. Herm. Estop. 294 § 254. See, also, Coutant v. Feaks, 2 Edw. Ch. 330; People v. Johnson, 38 N. Y. 63; Cauhape v. Parke, Davis & Co., 121 N. Y. 152; Gilcreast v. Bartlett (N. H.), 64 Atl. Rep. 767; Freem. Judg. (3d ed.) 305 et seq.; Mullaney v. Mullaney, 65 N. J. Eq. (20 Dick.) 384 (Court of Errors and Appeals, 1903).
In the case of Hawks v. Truesdell, 99 Mass. 557, it was held that where the special findings of a jury in an action at law were not confirmed by the judgment of the court, nor involved in the general verdict, they were not conclusive of the facts found, and either party might introduce evidence concerning the subject-matter in a trial before another jury in the same suit or in another suit.
In Springer v. Bien, 128 N. Y. 100, the court said: “Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties constitute a bar unless followed by judgment based thereon, or into which the verdict or finding entered. It is the judgment which constitutes the bar, and not the preliminary, determination of the court or jury. So, also, and for obvious reasons, although judgment has been entered, the judgment does not prevent the relitigation of any irrelevant fact, although it may have been litigated and found in the prior action.”
The things, therefore, which it was necessary to find in favor of Miller were a title from Barber, and innocence of any knowledge on his part of any incapacity on Barber’s part. Since the defendants failed to prove that Barber was insane to Miller’s knowledge, they failed in their defence, and I do not see how it is possible to hold that by thus failing they established, as between themselves and Miller, any part of that which they must have proved to have succeeded.
That judgment may properly be said to show that proof of Barber’s capacity in that suit was immaterial and. irrelevant.
Without proof that Miller was chargeable with knowledge of Barber’s incapacity, proof of Barber’s incapacity was irrelevant in the ejectment suit, and hence it cannot be held that it was therein settled as between the parties. The cases heretofore cited are authority for the principle that a settlement in a previous suit of an irrelevant matter which did not enter into the judgment is not conclusive in subsequent litigation.
Furthermore, I think that the fact that Miller is sought to be bound by a finding in a suit from the judgment entered in which he was powerless to appeal, or to take proceedings for review, makes strongly against the claim that he is concluded by such finding. Every fact which must have been found in his favor to have sustained his judgment, of course, binds him. But with respect to the matter which the complainant here seeks to have Miller bound he was powerless to obtain a review. The judgment not being in any way founded upon the fact of Barber’s incapacity or insanity, and being in Miller’s favor, should only be held conclusive against Miller of those things which must necessarily have entered into it to justify or sustain it.
To hold that a defendant has had settled in his favor certain facts in the face of a judgment in favor of his opponent which
The complainant herein not having made out her defence in the lawsuit, and the defendant herein having entirely succeeded in the lawsuit, I hold that the latter’s judgment is only conclusive of those facts which necessarily entered into it. It did not necessarily enter into that judgment that John Barber was insane, or that the purchaser of the leasehold had paid less than the market value for it.
I therefore ruled that those two subjects, not being concluded by the previous judgment, were proper subjects upon which to introduce testimony in the pending suit.
This brings us to the merits of the case.
I find the facts as follows: John Barber, in 1903, was about sixty-two years of age. He was an Italian, coming from a little settlement called Peruza, near Genoa. He was married and had at least six children, four girls, named Sisillia, Elizabeth, Julia and one whose name was not mentioned in the testimony given at the hearing, and two boys, Yictor and Joseph. He came to the United States and settled in Newark. He was engaged in the selling of fruit from fruit stands on the street or in stores.
On the 20th day of June, 1890, he obtained the assignment of a lease on property No. 879 Broad street, in the city of Newark. Broad street is the main business street of Newark. This lease expired in 1908, and required him to pay a ground rent of $472.50, and provided that at the expiration of the term he might elect to have another term of twenty years upon a rent to be agreed upon between the parties, or, if they could not agree, then the amount of rent was to be settled by three arbitrators of which each party was to select one and the two thus selected were to choose the third. It was further provided that at the expiration of the lease the landlord (which was a church corporation) would either take over the building at a valuation to be fixed in accordance with provisions in the lease, or the tenant should remove the same in ten days if the landlord did not purchase it.
The building in question standing upon the land at the time he leased it was an old five-story brick building. Upon the
Barber fitted up the ground floor for his fruit store, and occupied, with his family, the second and third floors, renting the other two to tenants. This continued down to December, 1902. At that time he was in debt to the extent of some $1,300. He was the executor of the estate of Rosa Schmidt, who was his sister. He was also a beneficiary under her will to the extent of one-third. The estate consisted of real estate and money, and there was a partition suit pending. While there was money in this estate at the time it had not then been settled as to how this money was to be distributed—that is to say, whether the beneficiaries would get part land and part money, or whether one would get money and the other land, or whether they would all have to wait until the partition suit was completed and a sale had.
Prior to December, 1902, he endeavored to sell his fruit business to a man who was a nephew of a friend of his named Mollinelli. He first wished to sell to Mollinelli, who was also a fruit dealer, but Mollinelli did not desire to enlarge his business by buying this other one, and said that he had a nephew who might be interested. Before carrying on any negotiations Mollinelli interviewed the wife of John Barber to ascertain whether she was willing that her husband should sell out the business, and testifies that she was willing. The negotiations then went on between Barber and the nephew of Mollinelli, with Mollinelli present, until Mrs. Barber upon one occasion visited Mollinelli and stated that she was not willing that the business should be sold at the price that was being suggested, which was in the
Barber thereafter offered his business for sale to Zazzalli, meeting him in the fruit market and talking with him about the same. His first offer was to sell at $1,100. Subsequently, upon his again approaching Zazzalli, he was met by a counter-offer by Zazzalli of $800. This he refused. Further negotiations were had between them, and finally Barber agreed to take $1,000.
He then took Zazzalli to his lawyer, Mr. Trimble, and the bargain was told to Mr. Trimble, and about the 3d day of December, 1902, a bill of sale of the business and a lease to Zazzalli from Barber for the store at $70 a month were made and executed and the money paid, and thereafter Zazzalli carried on the business, Barber assisting him for a little time to introduce the customers to him.
I may here state that there is no evidence that what Barber sold at that time was worth any more than he got for it. About the same time, or a little after, Barber went to see the same lawyer, Mr. Trimble, with Mollinelli, who quite often acted as an interpreter for him, being able to speak the same dialect of Italian which he spoke, and wished to retain Mr. Trimble as associate counsel with Mr. Smith, who was attending to the settlement of the Rosa Schmidt estate and the partition suit. Barber informed Trimble that the trouble was that Mr. Smith was very slow, and the matter was not being settled up as rapidly as he wished, and he wanted Mr. Trimble to go into the matter so as to hurry Mr. Smith. Mr. Trimble saw Mr. Smith and got information from him, and reached the conclusion that matters were progressing properly, and when Barber next called upon him he informed him that there was no occasion for him to do anything just then. At about this time—that is to say, in the early spring of the year 1903—the matter of the settlement of the account of the Rosa Schmidt estate came up, and Barber visited Smith, the lawyer, several times, and the account was prepared by Smith, Barber producing whatever receipts he had for debts of the estate, or legacies that he had paid as executor, and that account was passed.
It was the understanding—Barber having so stated—that Miller could have immediate possession of the property, Miller’s object in buying the property was to move his business around onto Broad street, which was much more desirable for him than William street, and of course he had in mind the desirability of getting there as soon as he should purchase this leasehold. Barber had informed Miller that the store property was leased to Zazzalli, but having informed him that he could get immediate possession, Miller was surprised when he learned, as he did subsequently by seeing the Zazzalli lease, that to get Zazzalli out he would have to pay him $1,000. He thereupon broke off all negotiations with Barber, telling him that since he had misrepresented this matter he would not any longer contemplate exercising his option to purchase. Thereafter Barber returned to see him and wanted Miller to make an offer. Miller then offered $3,500-. He states that this offer was based upon the <$5,000 offer previously made, of which $1,000 would have to go
There was a mortgage of Barber’s which had to be paid to the mortgagee, and the balance was to be paid Barber in cash. Miller produced two checks making up this balance, one of which was certified and the other of which was not. Barber objected to taking checks, wanting cash. It was explained to him that certified checks were as good as cash, and that immediately upon presenting the same at the bank and being identified he could secure the money. He thereupon acquiesced in taking the certified check, but would not take that one of the checks which was uncertified. All of the witnesses agree that the parties were together between two and two and a half hours while these checks were being certified, and while the figures were being gone over and the matter explained.
Finally the whole matter was explained to Barber, and he understood it, or said that he did, and took the checks and left. Coming out of the lawyer’s office he informed his friend Mollinelli that he was going away, but had not determined whether to go to California or Italy. It appears that he had, between December 3d, 1902, and June 26th, 1903, cleaned up his business, so that he had the $1,000 from the sale of the fruit store, the $3,500 from the sale of the lease' (less about $900 paid to-the mortgagee), and, in addition, that which was coining to him from the Eosa Schmidt estate. This latter sum was about $4,000. He had this money in bank as executor, and it turned out that it was just about, if not exactly, his share, and he withdrew that money for his personal use, making all told about $7,600 in cash.
He left Newark on the last-named day, and, according to his family, entirely and successfully disappeared from view. The defendants, however, proved, without contradiction, that he went
It is contended by the complainant that John Barber was insane, and was not competent to properly transact business, or to know the value of what he had or of that with which he was dealing. They base this, so far as their oral testimony in this cause is concerned, upon the evidence of a physician, John Barber’s eldest daughter, his eldest son, a niece who did not live with them, but did live in Newark; a barber who lived in the neighborhood, and two tenants of one of the flats in the house.
A fair statement of their testimony is that John Barber, up to 1901, was a kind, considerate father, and a man who, although illiterate and of humble origin, was intelligent; that, beginning at the time just named, he became a suspicious man, believing or expressing the belief that his wife and children were bad sexually, and were also robbing him or taking money from him. He was always a man who drank alcoholic liquors, although he does not appear often to have been intoxicated. They testify that he was constantly making these charges of immorality and of dishonesty against his family; that he would watch for the coming of the men that he suspected were coming to his home to have sexual relations with his family.
Some of the testimony is explicable from other of the testimony in the suit. For instance, it is testified that when he accused the children of taking money from the till they denied it and said that it must have been taken by somebody else, outsiders, strangers, and he locked the gates, or took certain precautions which he did take, because he wished to be sure that no one else had access to the place where the money was, excepting the family.
It is also in evidence that one of the girls was in the habit of receiving her young man caller in the front hall of the building, and of staying down there with him until very early hours of the morning. He vehemently objected to this conduct, in which she was upheld by the other members of the family. His out
None of the testimony of the complainant concerns the condition of this man’s mind in the transaction of business, or casts any direct light upon his ability to transact business. There is some little evidence by the complainant’s witnesses that he did not at times make correct change to purchasers, but such evidence is very trifling in amount and weight. It is possible, in my view, that, leaving out the physician who testified on behalf of the complainant, all that the complainant’s witnesses testified to may have been true without in any way proving that the man was not perfectly competent to transact business and to know the value of his property, and to negotiate intelligently for its sale. I think it is quite possible that an Italian who was in the habit of drinking, and who was angered at his family, might have raved and stormed at them and accused them of all kinds of things, and yet have had entire mental equipment of a sound nature to enable him to transact his ordinary business with all the skill that he ever possessed. The physician produced by the complainant did give his opinion that the man was not able to transact business, but such opinion was not based upon any experience with the man in this respect, and was based solely upon his view of what he termed Barber’s “delusions.” These “delusions,” according to the physician, were that members of his family were immoral, and that they were robbing him. According to his testimony, he had been suffering from the disease which produced these delusions for at least two years prior to the 26th of June, 1903.
I am inclined to think, from the testimony, that this man had no delusions in - the proper sense of that term. The doctor assumed that he had delusions, or testified that he had delusions, and then testified that one thus circumstanced would not have been able to transact business. But all of the testimony shows that these alleged delusions were never disclosed to anybody excepting those people above named, all of whom were members of his family, or were in his own house; that he never disclosed them to outside persons, excepting the doctor, under any circum
I am inclined to think that he did not have delusions, but did have certain grievances against his family which may or may not have been well founded.
The uncontradicted testimony is that the family did as it pleased, practically, in the matter of taking money from the store, and that he was displeased with the conduct of one or more of the girls. As I have before said, I think it quite possible that a man of the race of which this man was, and of his condition of life, and who was accustomed to drinking, might well behave in the way that he is testified to have behaved in his family and with his family without in any way having any mental aberration or mental unsoundness.
In addition to the oral testimony delivered at the trial, the complainant also produced and put in evidence a finding of a commission in lunacy on the 9th day of September, 1903, declaring John Barber a lunatic, of whom subsequently his eldest daughter was appointed guardian. This proceeding was, of course, ex parte, and is only prima facie evidence. Mott v. Mott, 49 N. J. Eq. (4 Dick.) 192 (at p. 196), and cases cited; Kern v. Kern, 51 N. J. Eq. (6 Dick.) 574 (at p. 583). I will not further discuss the weight of this finding, because, while in a doubtful case I should give great weight to the determination of commissioners and a jury, I do not see that it is entitled to any more than prima facie effect in the face of a fully-tried issue in this court.
Particularly would I be inclined to treat it in the way indicated when, as in this ease, the alleged lunatic was not served with notice of the commission and was not present, and was not seen or examined by the commissioners or the jury,
The complainant also produced the judgment in ejectment, which has been heretofore referred to and dealt with in a previous part of this opinion.
On behalf of the defendants a medical expert was produced, the gist of whose evidence was that if this man was suffering
This physician further testified that it was impossible for a man to have had either of the above-named diseases for the period claimed by the complainant without having shown physical evidences thereof, whereas all of the testimony shows Barber to have been in practically perfect health physically, being large, robust, ruddy and hearty.
The next class of evidence adduced by the defendants was of those who had casual dealings with Barber up to the time of his leaving Newark. These witnesses were men of substance and intelligence. They were lawyers or business men, and all testified that in their dealings with him—buying fruit or ordering fruit—they were waited upon in a proper manner, and saw nothing of a suspicious nature about Barber, nothing that led them to suspect that he was not sound in mind and in body, and that in whatever conversations they had with him he seemed perfectly rational.
The defendants also produced a lawyer named Egner, who was consulted by Barber concerning the making of a bond and mortgage for him, and who made the same and had them executed before him as a master; Mr. Trimble, who closed the deal for the fruit store, and who subsequently had the interviews concerning his participation in the litigation over the Rosa Schmidt estate; Mr. Smith, who had charge of that litigation, and who also had charge of the Rosa Schmidt estate in the orphans court and in the partition suit, and Judge Ten Eyck, who had the
In addition thereto the defendants produced an intimate friend of Barber, Mollinelli; the Millers, who purchased the leasehold, and Zazzalli, who purchased the fruit store, and they all testified to the details of the transactions with Barber, and to the fact that he was entirely rational, knew what he was doing, and was intelligent and shrewd.
When one considers all of the testimony, I do not see how a reasonable conclusion can be reached that this man lacked mental soundness. The rule as to the mental capacity requisite in cases of ordinary contracts is well settled in this state, and the test is, Did the person whose act is brought in judgment possess sufficient ability at the time he did the act to understand in a reasonable manner the nature and effect of his act or the business he was transacting? Kern v. Kern, 51 N. J. Eq. (6 Dick.) 574 (at p. 579) (Vice-Chancellor Green, 1893). In that case the vice-chancellor observed:
“The old doctrine that the mind, although it has different faculties, is one and indivisible, and that if any of.its parts is disordered, or if it is in any way diseased, or its healthy operation in any function disturbed, it is an unsoundness which affects the whole organ and renders the person legally of unsound mind and incapable of entering into a civil contract, is no longer recognized.
“The question, under the present state of the law, is not whether the mind of the party was in any way affected or impaired, but -whether, such' being the case, the impairment or defect of the mind influenced or inspired the act which is the subject-matter of consideration, for, admitting that the party was subject to some delusion, or that his mind was in some faculty impaired, if the act challenged is not traceable to, and has not probably been influenced by, the defect of intellect, but is the result, so to speak, of the action of the unimpaired faculties of his mind, it will not be disturbed.”
“A man may be mentally unsound, in a medical point of view, from certain conditions which exist, which would not, in a legal sense, relieve him from responsibility. He may be subject to mania, and medically of unsound mind, yet if the peculiar phase of mania had no influence upon the act brought in question, such act is not, in the law, invalid. He may be an imbecile, and medically of unsound mind, but if he has sufficient mind to reasonably understand the act which is brought in question, he is legally competent.”
Applying the principles deduced from the cited cáse and those which it cites, it is clear that the complainant has utterly failed to prove that there was any such impairment of John Barber’s mind as made him incapable of understanding in a reasonable manner the nature and effect of his acts or of the business that he was transacting, or that the act challenged was traceable to or influenced by any delusion. My impression is that he had, by reason of his grievances against his family, determined to leave. He expressed to his intimate friend his dissatisfaction with the expenses under which he was laboring, and stated that his family were living too expensively; that he wished them to move out of the high-priced neighborhood like Broad street, and enable him to rent the flats they were then occupying to others, and himself to rent a flat in a less expensive, neighborhood for them. He also objected to their taking money, as they had been accustomed to do, from the till in the store. He also, according to their testimony, though not confirmed by outsiders, objected to their morals in sexual matters. As has been already seen, he was in a position to gather together quite a little money, and had expressed a desire to return to Italy, and at one time had asked his family to do so. I think that he conceived the desire or the intention to go back to Italy, or to at least leave his family; that he cast about him to get what money he could; that he had three sources from which to get it; one was his business, another was the leasehold and a third was whatever was coming to him from the estate of his deceased sister. I cannot find that in any one of these matters, each of which he
In the sale of his fruit business, as I have before stated, he seems to have obtained all that is proven to have been the full value of it. We therefore see that in every business matter (which is the only thing with which we are concerned) he displayed such intelligence as a man of his origin and upbringing would have, and seems to have bargained with shrewdness, and to have seen to it that his bargain was carried out to its culmination with entire regard to commercial principles and the proper conduct of business. Under these circumstances I do not see how the court would be justified in finding that this man lacked mental soundness.
The experts themselves in their testimony demonstrate the uncertainty of the whole subject. Scarcely any two figured with the same factors. Some based their idea of value upon what the property would be worth to one who greatly desired it and was willing practically to lose money on it for the additional value such location would give his business. Others figured upon it entirely from an investment standpoint. They varied in their estimates of value from nothing to $10,000 or more. I can only say that the complainant did not, in my view, establish by the evidence that there was any market value for this lease in excess of what was paid for it.
I will advise a decree dismissing the bill and sustaining the prayer of the cross-bill as to an accounting.
The decree will be settled upon notice.