Childs v. S. Jersey Amusement Co.

Decision Date19 November 1923
Citation122 A. 803
PartiesCHILDS v. SOUTH JERSEY AMUSEMENT CO.
CourtNew Jersey Supreme Court

Appeal from Court of Chancery.

Suit by S. Canning Childs against the South Jersey Amusement Company. Decree for complainant, and defendant appeals. Affirmed.

William S. Darnell, of Camden (William C. Waltman, of Philadelphia, Pa., on the brief), for appellant.

William J. Kraft, of Camden, for respondent.

GUMMERE, C. J. This is an appeal from a decree of foreclosure on a bill filed by the complainant, Childs, against the amusement company. The mortgage in suit bears date August 6, 1921; it was given to secure the payment of $40,000, and was payable, by its terms, in one year from its date. The only defense set up as a bar to the foreclosure was that, when the giving of the mortgage was being arranged for, it was represented by the defendant to a Mr. Kraft, who was acting for the complainant, that it was unwilling to give a mortgage payable in one year from date, and that thereupon Kraft, as the duly authorized agent of the complainant, Childs, stated that payment of the mortgage would not be required at the end of the year, but that, notwithstanding the due date expressed in the instrument, it should not be payable until the expiration of two years from its making and delivery, and that, upon the faith of this statement and representation, the mortgage was then executed and delivered by the defendant.

Assuming that such an agreement as is outlined above was entered into between the parties, it constitutes no defense to a foreclosure of the mortgage. By the express provision of the writing, it is payable at the end of one year from its date, and this written provision cannot be altered or varied by any prior or contemporaneous parol agreement. In the case of Parker v. Jameson, 32 N. J. Eq. 222, a similar defense was attempted to be set up in a foreclosure proceeding; that is, that at the time of the delivery of the mortgage a parol agreement was entered into between the parties thereto, by which the defendant was not to be required to pay the mortgage according to its terms. Vice Chancellor Van Fleet, in dealing with this defense, says:

"The question, it will be perceived, is, whether this contemporaneous parol agreement can be given effect, * * * so as to alter or vary the terms of the mortgage. The law upon this subject is elementary. It is part of the alphabet of the law of evidence that, when the parties to a contract have deliberately...

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5 cases
  • Doyle v. Northrop Corp.
    • United States
    • U.S. District Court — District of New Jersey
    • 20 Junio 1978
    ...3 Corbin on Contracts, § 573 at 368 (1960). See also Atlantic Northern Airlines v. Schwimmer, supra; Childs v. South Jersey Amusement Co., 95 N.J.Eq. 207, 122 A. 803 (E. & A. 1923). Thus the plaintiffs may not be precluded from introducing evidence of a contemporaneous oral agreement, thoug......
  • Plum Tree, Inc. v. NK Winston Corporation
    • United States
    • U.S. District Court — Southern District of New York
    • 1 Noviembre 1972
    ...12 N.J. 310, 96 A.2d 660 (1953); Atlantic Northern Airlines v. Schwimmer, 12 N.J. 293, 96 A.2d 652 (1953); Childs v. South Jersey Amusement Co., 95 N.J.Eq. 207, 122 A. 803 (1923); Naumberg v. Young, 44 N.J.L. 331 (1882); Richards Development Co. v. Sligh, 89 Ariz. 100, 358 P.2d 329 (1961); ......
  • Downs v. Jersey Central Power and Light Company
    • United States
    • New Jersey Supreme Court
    • 5 Octubre 1934
    ...undertakings, it is conclusively presumed that every term of their contract was included in the writing. Childs v. South Jersey Amusement Co., 95 N. J. Eq. 207, 122 A. 803. This rule obtains in equity as well as at law. It is a rule of substantive law, and not of evidence merely. But, in th......
  • Lobsenz v. Central Market Co.
    • United States
    • New Jersey Supreme Court
    • 1 Noviembre 1935
    ...water. Drischman v. McManemin, 68 N. J. Law, 337, 53 A. 548; Kistler v. McBride, 65 N. J. Law, 553, 48 A. 558; Childs v. South Jersey Amusement Co., 95 N. J. Eq. 207, 122 A. 803; Wills v. Camden Lime Co., 104 N. J. Law, 428, 140 A. In the Drischman Case it was held that recovery cannot be h......
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