Chess v. Vockroth

The opinion of the court, upon the case thus stated, was delivered by G-beeíst, J. 1. The statement hereunto prefixed shows that the plaintiff in error objected, at the closing of the case, that — 670 — the contract before the court was not the contract sued on in the declaration, and asked for the direction of a verdict in his favor on that ground, and that the court refused such direction, evidently understanding the precise point of the objection to be that the contract as proved differed from the contract sued upon with respect to the mode of paying the consideration. In this view of the matter the ruling of tire court was right, inasmuch as it can scarcely be doubted that proof of an agreement, entered into by the parties to a written contract, after the making of the contract and before the time for performance, whereby a new consideration or a new mode of paying the consideration is substituted for the first, is relevant, and proper to go to the jury, the modification being testified to by both parties, and relied upon by both parties, at the trial. The authorities certainly go as far as, if not further than, the circumstances of this case require. See 2 Pars. Cont. (9th ed.) 706, 708, bottom, and notes; 9 Cyc. L. & Pro. 593, 595-597, 756; McEowen v. Rose, 2 South. *582 (1819); Stryker v. Vanderbilt, 1 Dutcher 482, 496 (1856); Church v. Florence Iron Works, 16 Vroom 129, 132 (1883). In another aspect of the matter, the objection had an unobserved force, and it is alluded to, not because advantage may now be taken of it, but because the affirmance of the judgment should not carry with it a supposed judicial approval of the plaintiff’s declaration. A reading of the declaration reveals that the redress sought was the recovery of damages for the vendor’s breach of an existing contract of sale. A reading of the evidence sent up with the bills of exception shows that what was tried in fact was the right to recover a deposit paid upon a contract of sale which had been terminated by abandonment, repudiation or rescission; wrought or acquiesced in by both parties. The distinction between such modes of redress clearly appears in the opinion of this court in McTague v. Sea Isle City Building Association, 28 Vroom 427, 428, 429 (1894). Had the defendant below rested his objection upon the ground of variance, and argued that only questions within the issue are to be submitted to — 671 — the jury — Partridge v. Woodland Steamboat Co., 37 Id. 290, 294 (1901)- — doubtless the learned trial justice would have given due heed to the objection. At this time, however, the objection does not lie in the mouth of the plaintiff in error. If there were nothing else in the way, this would be — the failure to make distinctly and plainly known to the court below any such ground of objection as we have now suggested. See Bell v. Mecum, ante p. 547 (1907). Furthermore, the objection will not now be regarded e proprio motu by this court. It is well settled that when the real question in dispute has been fairly tried, and the ends of justice will be promoted, the declaration will be amended here in order to support the judgment below. American Life Insurance Co. v. Day, 10 Vroom 89, 91 (1876); Blackford v. Plainfield Gas Light Co., 14 Id. 438, 441, 442 (1881). 2. In argument the counsel for the plaintiff in error has contended that there was error in that the trial court failed to submit to the jury whether a certified check was or was not agreed upon as the method of paying $2,500 of the purchase-money. To this it seems sufficient to say that, if it be true that there was such failure, the point is not embraced in any exception taken in the court below, and therefore is not to be considered or decided. Williams v. Sheppard, 1 Gr. 76, 78 (1832); Pennsylvania Railroad Co. v. Page, 12 Vroom 183, 184 (1879). In the absence of a bill of exception, error cannot be assigned on the matter which such bill should contain, neither can the judgment be reversed. Wanamassa Park Association v. Clark, 32 Id. 611, 612 (1898); Conrad v. Brocker, 41 Id. 823 (1904); Crosby v. Wells, 44 Id. 790, 803 (1906). Even though a perusal of the whole printed case should show negatively that there was such a failure, the argument here would not be successful, inasmuch as, on error, it will be presumed, in the absence of instructions to the contrary, that the trial court submitted all disputed questions of fact to the determination of the jury. Marsh v. Newark Heating and Ventilating Machine Co., 28 Vroom 36, 39 (1894). — 672 — 3. On the argument it was also urged that there was error in that the trial court did not charge the jury that payment was to be made in cash, as testified to by the plaintiff below, but wholly neglected to touch on the question. Assuming (what may not be true) that the point has been raised upon a proper bill of exception and assignment of error, we find no weight in the argument. A mere omission to give a pertinent charge, when not requested (there was but one request to charge in the present case, and that was granted), or to state some legal principle applicable to the facts of the case is no ground of error. Folly v. Vantuyl, 4 Halst. *153, *156, *158 (1827); Hetfield v. Dow, 3 Dutcher 440, 447, 448 (1859); Conover v. Middletown, 13 Vroom 382, 384 (1880); Mead v. State, 24 Id. 601, 606 (1891). Modern English cases state the rule rather more tersety, to wit: It is misdirection, and no non-direction, that is the proper subjectof a bill of exceptions. McAlpine v. Mangnall, 3 C. B. 496, 510, 517 (1846); Greene et al. v. Bateman, L. R., 5 Eng. & Ir. App. 591, 602, 603 (1872) and note. At first sight this seems incomplete, but a careful perusal of these cases and of the Hew Jersey cases last above cited, together with Petre el al. v. State, 6 Vroom 64, 68 (1871), and Packard v. Bergen Neck Railway Co., 25 Id. 553, 557 (1892), shows that there is no real conflict of judicial opinion. Purther, such cases as Den v. Sinnickson, 4 Halst. *149, *152 (1827), and Marley v. State, 29 Vroom 207, 209 (1895), are not opposed to the rule in either form. The earlier case was on a rule to show cause why a new trial should not be granted; the later disapproved of an omission which made the charge partial, and hurtful to the person convicted. 4. We are now to inquire whether the trial court should have allowed the motion for nonsuit, on the ground that no proper tender of the chattel mortgage or of the $2,500 in cash had been made by the plaintiff below. There was, indeed, a motion to direct a verdict for the defendant below on the same ground, and an exception was sealed on its denial. Ho assignment of error, however, embraces the point, and there — 673 — fore the propriety of the motion to nonsuit only will be considered. As we look at the question we perceive that there are several elements in- it, to wit, Was the defendant, Vockroth, justified in refusing to carry out the contract of sale unless Mrs. Chess would join with her husband in executing the chattel mortgage ? If he unjustifiably refused, did he thereby waive any tender of the mortgage and of the cash? If he waived a tender, was he entitled, as the case stood, to a judgment of nonsuit ? (a) Unless a special agreement to that end was made by the parties or their authorized agents (and evidently the jury found no such agreement as a fact), Mrs. Chess’ signature to the chattel mortgage was not necessary. By the common law, as we inherited it from the mother country, a feme covert acquired no right in the personalty of her husband during his lifetime, the paraphernalia excepted. 2 Bl. Com. (Lewis’ ed.) *435, *436; Reeve Bom. Rel. (1st ed.) 3-7. All that she could acquire in the personalty was a right to one-third part or share at the husband’s death intestate, and this right he could defeat by a testamentary disposition. 2 Bl. Com. *492, *493. The underlying principles which required a wife to be a party to any form of assurance of land, or which led, with us, to any such enactment as may he found in 1 Gen. Stat., p. 1275, § 1, were and are wholly lacking, with respect to personalty. Mr. Jones, in writing the article “Chattel Mortgages,” in 6 Gyc. L. & Rro., says (at p. 999) : “Since at common law a valid mortgage could be created by parol, informalities in the signature of a mortgage will not invalidate it, unless certain requirements are made necessary by statirte, such as that chattel mortgages shall be executed in like manner as mortgages o'f real estate, or that mortgages of household property shall be signed by both husband and wife.” At present we are interested in the correctness of this statement of the law only so far as it indicates that the signature — 674 — of the wife to a chattel mortgage is not necessary unless required by statute. In this state there is a statute, first enacted in 1893 (2 Gen. Slat., p. 2111, § 41), and reproduced-in “An act concerning mortgages on chattels (Revision of 1902)” (Pamph. L. 1902, p. 489, § 10), which prescribes that “a chattel mortgage of household goods and furniture in the use and possession of any family * * * shall’ be duly signed, sealed, executed and acknowledged by the husband and wife.” In the cases in which this statute has been set up against the validity of a chattel mortgage not signed by a wife it has been construed strictly, perhaps as in derogation of the common law. Green v. McCrane, 10 Dick. Ch. Rep. 436, 439-441 (1897); Dunham v. Cramer, 18 Id. 151, 155, 156 (1902). Inferentially these cases support the view that outside of the scope of this statute there is no law that requires the wife’s signature to a chattel mortgage. We think, their, that in insisting upon the signature of Mrs. Chess as a condition of his own performance, the defendant, Vockroth, was not justified by the common or statute law. (b) If there was evidence to sustain a conclusion that the defendant wrongfully refused to perform his undertaking unless Mrs. Chess would sign the chattel mortgage, the next question is, did he thereby waive a tender of the mortgage and of the cash? Or, as some authorities put it, did the plaintiff, Chess, then stand excused from making any such tender ? Undoubtedly there may be cases in which a tender of one thing or another is necessary before suit brought. A few illustrations occur to us. The tender of a note for $58, for the final payment on a contract of sale of land, was held in this court — Ware v. Lippincott, 18 Stew. Eq. 220, 224 (1888) —to be the act which entitled the vendee to.a conveyance. The tender of $295 was held- — Harvey v. Trenchard, 1 Haht. *126, *127 (1822) — to be a prerequisite to the maintaining of an action at law for damages for not delivering a deed of — 675 — land. It has been determined also that in paying cash a tender should be in lawful money, unless by special agreement between the parties. Coxe ads. State Bank at Trenton, 3 Id. *172, *174 (1825); Hoagland v. Post, Coxe *32 (1790). Such decisions are not, however, controlling of the case in hand. In Pittenger’s Administrator v. Pittenger, 2 Gr. Ch. 156, 165 (1834), it appeared that a purchaser took the deed of conveyance into his hands and read it; that he then handed it back and said he believed he would not take it. On these facts it was held that “where a deed is to be given, and the party is present, prepared to give it, and the one who is to receive it positively declines, there is no need of a formal execution and tender.” In Thorne v. Mosher, 5 C. E. Gr. 257, 258, 262 (1869), it was in evidence that the defendant went to the complainant’s house to pay the interest upon a debt; that she had the amount in her purse in her hand, the purse but not the money being in the complainant’s sight, and that she was in the act of taking the offered money out of her purse, but stopped because the complainant refused to receive the interest. On this evidence the Chancellor said that the offer was neither payment nor tender, but the refusal was a sufficient excuse for not making an actual tender. In the very late case of Crosby v. Wells, 44 Vroom 790, 792, 802 (1906), it appeared that a certificate of stock, with an assignment thereof, was in the defendant’s pocket, ready to be returned, but was not delivered or perhaps even shown, because the plaintiff declared that he would not receive the papers at all. That the act of rescission thus fell short of a complete return of the thing sold did not, in the opinion of this court, destroy the effect of the notice and offer to return, the defendant not being required to do more than, under the circumstances of the ease, the plaintiff permitted him to do. We think that, under the principle of these cases, the wrongful insistence of the defendant below was evidential of a waiver on his part of an actual tender by the plaintiff below of that part of the purchase-money which was to be paid in — 676 — cash, or of the chattel mortgage which was to secure the residue of the purchase-money, and thereby the plaintiff was excused from making such tender. A similar view was expressed by the Supreme Court of Pennsylvania in the late case of Douglas v. Hustead, 216 Pa. SI 292, 299, 300 (1907). (c) We thus reach the last element of the inquiry, whether the defendant was entitled to a judgment of nonsuit, when the plaintiff rested. In the consideration of this element we should, of course, confine ourselves to the merits of the ground on which the motion was placed. Zeliff v. North Jersey Street Railway Co., 40 Vroom 541, 542 (1903); Maguth v. Freeholders of Passaic, 43 Id. 226, 227 (1905). It being already determined that the plaintiff below was excused from making any actual tender, it would be a waste of time gravely to inquire whether lie had made a proper tender. The motion on the ground alleged was rightly disallowed. Moreover, we think that if the motion had been granted, this could have been done only in disregard of legitimate evidence offered by the plaintiff, and such a ruling would not be approved. Metting v. North Jersey Street Railway Co., 40 Id. 605 (1903); see Cadwallader v. Hirshfield, 33 Id. 747, 751, 752 (1898). The conclusion is that the judgment below should be affirmed. This conclusion, it may be remarked, puts the case in harmony with decisions, of which Zimmerman v. Branyan, 33 Vroom 478 (1898), and Wolff v. Meyer, ante p. 181, are types, although they be not controlling precedents. Let an affirmance be entered, with costs. For affirmance — Pitney, Chancellor, Ti-ie Chief Justice, Garrison, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL, J.J. 12. For reversal — Hone.