Bancamerica-Blair Corp. v. Naphen

• Citation: 200 A. 428
• Decision Date: 29 June 1938
• Docket Number: No. 7935.,7935.
• Parties: BANCAMERICA-BLAIR CORPORATION v. NAPHEN.
• Court: United States State Supreme Court of Rhode Island

200 A. 428

BANCAMERICA-BLAIR CORPORATION

v. NAPHEN.

No. 7935.

Supreme Court of Rhode Island.

June 29, 1938.

Exceptions from Superior Court, Washington County; G. Frederick Frost, Judge.

Action of case in assumpsit by the Bancamerica-Blair Corporation against Josephine Baker Naphen to recover on a judgment which plaintiff had recovered against defendant in the state of New York and to recover on a written guaranty of a note. The court rendered a decision for plaintiff, and defendant took exceptions.

Exceptions overruled and case remitted to Superior Court for entry of judgment.

Tillinghast, Collins & Tanner, James C. Collins, and Westcote H. Chesebrough, all of Providence, for plaintiff. Hinckley, Allen, Tillinghast & Wheeler, S. Everett Wilkins, Jr., and Benjamin R. Sturges, all of Providence, for defendant.

BAKER, Justice.

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This action of the case in assumpsit was heard in the superior court by a justice thereof sitting without a jury. He rendered a decision for the plaintiff in the sum of $31,315.71, and the defendant thereupon prosecuted her bill of exceptions to this court. The exception principally relied on by her is to the decision of the trial justice.

The plaintiff's declaration was in three counts. The third count was withdrawn. The first count declared on a judgment entered in the supreme court of the state of New York against the defendant in favor of the plaintiff. The second count was on an alleged written guaranty by the defendant of a certain promissory note made by Naphen & Co., Incorporated, to the plaintiff. To the first count the defendant filed a plea of no such record and two additional pleas, one denying that the supreme court of the state of New York had jurisdiction over the person of the defendant or that personal service was made upon her, and the other alleging payment of the obligations of Naphen & Co., Incorporated. To the second count the defendant pleaded the general issue.

At the trial the defendant offered no evidence and made no attempt to substantiate its plea of payment. The decision of the trial justice was based solely upon the first count of the plaintiff's declaration. The principal facts as they appeared from the plaintiff's evidence were as follows. The business of Naphen & Co., Incorporated, was controlled and conducted by the defendant's husband George F. Naphen. In 1930 negotiations were entered into by the plaintiff and George F. Naphen concerning certain financial dealings and transactions which they had previously had with each other. As a result of these negotiations a note for $30,000, dated August 8, 1930, was given to the plaintiff by Naphen & Co., Incorporated, as maker. On the same date the defendant gave the plaintiff a written guaranty of this note. She also agreed to give the plaintiff, as security for the payment of such note and guaranty, a mortgage upon her real estate and appurtenances located at a given address in New York City. In view of the fact, however, that the defendant did not wish to have such a mortgage recorded, it was, in a short time, arranged by the parties interested to have her transfer the real estate in question to a corporation newly organized for the purpose of holding title to such real estate. All the stock in this new corporation was held by the plaintiff, the officers of which were also the officers of the new corporation.

The note of August 8, 1930, signed by Naphen & Co., Incorporated, was a demand note. By 1935 this note had not been paid, nor had the defendant paid the sum due thereunder, in pursuance of the terms of her written guaranty. The plaintiff, therefore, brought action against the defendant in New York on such guaranty, and a default judgment was entered against her in favor of the plaintiff on October 21, 1935. Subsequently, following negotiations between the parties, an agreement in the form of a letter, bearing date December 19, 1935, was entered into by the plaintiff and the defendant. Upon receipt of this letter, after its acceptance by the defendant, the plaintiff transferred to her all the shares of stock in the corporation which had been formed to take title to her New York real estate, and all the officers of that corporation resigned their offices. The defendant was then elected president of the corporation in question, and her nominees were elected to the other offices therein. Also, pursuant to the provisions of the above-mentioned agreement, the present action was instituted in the superior court of this state for Washington county. The writ in this action was returnable to that court January 14, 1936, and under it certain real estate belonging to the defendant in the town of Narragansett was attached.

At the trial of this case the plaintiff proved its New York judgment by the introduction of a copy of the same, duly exemplified. This judgment was as follows: "The summons and verified complaint in this action having been served on defendant on the 2nd day of August, 1935, pursuant to an order for substituted service, and the time for said defendant to appear, answer or make any motion with respect to the complaint herein having fully expired, and said defendant not having appeared or answered or so moved herein, and the testimony of plaintiff having been taken and sworn to before this Court on the 18th day of October, 1935, and an order having been made and entered herein on the 21st day of October, 1935, directing the Clerk to enter judgment herein, it is hereby adjudged that Bancamerica-Blair Corporation, of 44 Wall St. N. Y. C. the plaintiff, do recover of Josephine Baker Naphen, the defendant, the sum of $39,355.07, the amount claimed and interest, with $36.85 costs and disbursements, amounting in the whole to the sum of $39,391.92, and that said plaintiff have execution therefor."

The defendant contends that the decision of the trial justice was erroneous in that the plaintiff did not prove the New York judgment with the necessary completeness. She maintains that the proof must show the subject matter of the cause of action in New York, and the jurisdiction which the court in that state had over the defendant. She urges that substituted service on the defendant was not sufficient in those proceedings. She argues that these two matters must satisfactorily appear in the record of the New York judgment, as proved in this case, before the plaintiff is entitled to recover here on such judgment. On the other hand, the plaintiff contends, in substance, that it has properly and...