Cassatt v. First Nat. Bank of West N.J.

• Decision Date: 29 July 1931
• Citation: 156 A. 278
• Parties: CASSATT et al. v. FIRST NAT. BANK OF WEST NEW YORK, N. J.
• Court: New Jersey Supreme Court

156 A. 278

CASSATT et al.

v. FIRST NAT. BANK OFWEST NEW YORK, N. J.

Supreme Court of New Jersey.

July 29, 1931.

Action by Robert K. Cassatt and others, partners, trading as Cassatt & Co., against the First National Bank of West New York, New Jersey. On motion to strike out the complaint.

Motion denied.

See, also, 9 N. J. Misc. R. 222, 153 A. 377.

MeCarter & English of Newark, for plaintiffs.

Walter S. Keown, of Camden, for defendant.

ELDREDGE, Circuit Court Judge.

The plaintiffs in the above-entitled cause filed their complaint to recover from the defendant an amount alleged to be due for certain purchases of stock made by the plaintiffs for the defendant. The complaint contains six counts. The first count alleges that the defendant ordered the plaintiffs to buy for the defendant one hundred shares of the common stock of Baldwin Locomotive Works, when issued, at a certain price, plus commission, and agreed to take and pay for the stock when the same should be issued; that the plaintiffs thereafter bought the said securities at the agreed price for the account of the defendant and delivered them to the defendant, who refused to accept the stock or pay the agreed price or commissions.

The second count is like the first, but for a different block of stock.

The third count repeats the first, with the added allegation that the defendant was then and there acting as an agent for some other person as undisclosed principal.

The fourth count bears the same relation to the second as the third bears to the first.

The fifth and sixth counts read as follows:

"(5) They sue for the agreed price of stock sold and delivered by them to the defendant in accordance with the bill of particulars hereunto annexed, marked Exhibit A, and made part hereof."

"(6) They sue for the reimbursement of moneys laid out by them as agents for the defendant in the purchase of securities for the account of the defendant, in accordance with the bill of particulars hereunto annexed, marked Exhibit A, and made part hereof."

Counsel for the defendant now moves to strike out the complaint upon six different grounds, which, in substance, amount to two, and for present purposes will be so considered.

Respecting the first and second counts of the complaint, the defendant alleges that the transactions therein set out come within the purview of the statute of frauds, and respecting all six counts it alleges that the transactions set out are illegal because they are in violation of the provisions of the Federal Reserve Act and ultra vires, and hence there can be no recovery on any one of the counts of the complaint.

It is to be noted in regard to the defendant's first contention that the complaint does not, on its face, set out a transaction which would be unenforceable by reason of the statute of frauds. It is silent as to whether the alleged agreement was in writing or oral. A bill of particulars, however, was furnished upon demand, and the bill of particulars states that the alleged agreement was an oral one. The defendant contends that this admission in the bill amplifies the complaint. Hence, the complaint as amplified does state a transaction within the purview of the statute, and the first and second counts must therefore be stricken.

This contention cannot be sustained for two reasons. In the first place, the motion in this case is addressed to the whole complaint. Where a motion is addressed to a complaint as a whole, it will be denied if any count in the complaint be good. Malone v. Brotherhood of Locomotive Firemen & Engineers et al., 94 N. J. Law, 347, 110 A. 696; Van Schoick v. Van Schoick, 76 N. J. Law, 242, 69 A. 1080.

In the second place, the plaintiff is not required to negative the application of the statute in his complaint and aver that the promise was in writing, because the law presumes the fact that the promise was in writing, and what the law intends may be omitted in the averments of pleading. Wilkinson-Gaddis Co. v. Van Riper, 63 N. J. Law, 394, 43 A. 675; Ziegener & Lane v. Daeche, 91 N. J. Law, 634,103 A. 82.

So far, then, as the statute of frauds is concerned, the complaint is good unless a bill of particulars, when furnished, becomes a part of the complaint for the purpose of disposing of this motion.

Defendant contends that it does, and relies upon the case of Frederick J. Rabe and Charles R. Hopkins, co-partners, under the firm name of Rabe & Hopkins v. Cornelius J. Danaher, 51 F.(2d) 777, recently decided by the United States District Court for the District of Connecticut. If this were a New Jersey decision, undoubtedly the defendant's contention would be sound, but this case comes from the district of Connecticut and appears to be contrary to the decisions of our own Courts, which would be controlling in the present matter.

On questions of pleading, in actions at law, the state practice controls, and...